Illustration by Eloy Bida
This article was published in Wild
Issue #92 | Fall/Winter 2021
The statistics are staggering: 2.3 million people are currently incarcerated in jails or prisons. Another 840,000 people are on parole and 3.6 million are on probation. Some 113 million people have an immediate family member who is currently or was formerly incarcerated. The violent tentacles of the U.S. carceral system overwhelmingly and disproportionately impact Black communities, Indigenous communities, and other communities of color. Imagining a system beyond the one that currently exists can seem daunting and even idealistic. Calls to defund the police, abolish prisons, and create new systems of safety and accountability are met with ridicule or suspicion. Yet there have long been alternatives to our current criminal justice system. Despite severe limitations put in place by federal policy and the ongoing impacts of historical and intergenerational trauma, tribal communities are reclaiming traditional forms of justice. In Northern California, the Yurok Tribe has developed a supportive web of services that includes alternatives to incarceration and fines, wraparound reentry support, and prevention programs that respond to community needs.
This system stands in stark contrast to the broader carceral system. Federal- and state-based legal systems are founded on disposability, retaliation, and the surveillance of marginalized communities. The Yurok system, on the other hand, prioritizes transformative justice and personal agency grounded in traditional Yurok values. “For a village people, incarceration is the equivalent of banishment,” Blythe George, Yurok tribal member and associate professor of sociology at the University of California Merced, tells Bitch. “For us, banishment was at the end of a very long list. In a village society, we need everybody come harvest time.”
The Importance of Accountability and Support
The Yurok Nation is the largest tribe in California, nestled along the Klamath River on the northern Pacific coast. As a sovereign nation, the Yurok Tribe manages its own court system and is able to apply its specific cultural lens to its functioning. Chief Justice Abby Abinanti’s court looks very different from a traditional state, county, or federal court. Judge Abby—as the community calls her—sees herself as a community member, not as a punisher. In her court, the person facing charges helps to decide how they should be held accountable. “We’re a culture that’s responsibility based,” she says. “You have a responsibility to and a responsibility for. Yes, there is a consequence for misbehavior, but they get to help decide how to address it because it was their mistake. That’s the whole thing about humans—we’re pretty mistake prone.”
First, Judge Abby gives people the choice of going to trial or working with her to come to a mutually agreeable solution. The majority of people choose the latter option. Second, the individual helps decide how they should be held accountable. In a fishing violation, for example, someone may choose to pay a fine, or they may donate fish to a ceremony or the elders program. In child support cases, Judge Abby works with parents to come to a mutual agreement, which may include requiring the noncustodial parent to provide babysitting, rides to town, or wood or fish to the custodial parent. These noncash payment solutions are particularly valuable in a community with concentrated poverty: 41 percent of families with children and 53 percent of families headed by single mothers in the tribal area live below the federal poverty level. Judge Abby notes that off-reservation courts often garnish wages to resolve child support cases. According to the most recently available Census Bureau data, the average child support payment in the United States is $430 per month.
Unlike the U.S. legal system, which Judge Abby calls “stranger justice,” the Yurok system prioritizes the agency of the individuals involved. “What I’m trying to do is say to someone, ‘You have exhibited behavior that is not okay. How are we going to help you get past that? Because we want you in [our] community.’” The tribal court sees a variety of cases—from environmental violations and domestic violence to child support and legal guardianship—but their jurisdiction is limited. The state has criminal jurisdiction over people residing on reservations, including tribal members. In most states, either the federal government or tribes have jurisdiction over their members. But California—along with Alaska, Minnesota, Nebraska, Oregon, and Wisconsin—is a Public Law 280 (PL 280) state. PL 280 was passed in 1953 without consulting tribes, and it gives state governments jurisdiction over all criminal matters on reservations. Tribal advocates argue that PL 280 violates sovereignty. The statute is often cited as a reason that tribes are denied funding for their own systems of justice. This is nothing new: Tribal communities have long been impacted by colonial violence and federal law. Westward expansion and the California gold rush brought extreme violence to Indigenous communities. Intentional massacres, enslavement, and disease during the 19th century devastated the Indigenous population, which, by some estimates, dropped from more than 150,000 to a mere 30,000.
Federal legislation has also limited how tribal communities can respond to violence. The Major Crimes Act of 1885 severely limited tribal jurisdiction and gave the federal government control over major felony crimes. A 1978 Supreme Court decision further restricted tribal jurisdiction, asserting that tribes don’t have the inherent authority to arrest and try non-Natives who commit crimes on their land. The 2013 reauthorization of the Violence Against Women Act increased tribal jurisdiction and enabled some tribes to prosecute non-Native offenders in cases of domestic violence, dating violence, and some violations of a protection order. These jurisdictional limitations mean that tribal citizens are often arrested, tried, and incarcerated outside of tribal systems, which can be deadly. An April 2021 NPR report on prisons that are run by U.S. Department of the Interior’s Bureau of Indian Affairs (BIA)—where many incarcerated Native Americans are held—found patterns of neglect, disrepair, and undertrained staff. The report found that since 2016, 19 people have died in BIA-run prisons, and many of them were being held pretrial for minor offenses such as violating open container laws.
“Federal officials have known about the mistreatment of inmates and other problems at the detention centers for nearly two decades. A 2004 federal investigation found widespread deaths, inmate abuse, attempted suicides, inhumane conditions, and other issues in many of the more than 70 detention centers scattered throughout the United States,” the report states. “Seventeen years later, myriad problems remain.” By prioritizing Yurok values—responsibility and repairing harm, not retaliation and surveillance—the Yurok court has created a system that serves its community better than a system that overpolices, overincarcerates, and undervalues Natives ever could.
Chief Justice Abby Abinanti (Photography by Matt Mais / Yurok Tribe)
Protection, Not Punishment
When she was a sociology PhD student at Harvard University, George, the UC Merced professor, remembers asking Judge Abby: “I have all the training they’re ever going to give me. What would be most helpful to you?” The tribe wanted to learn how many Yurok people are impacted by the nontribal legal system and better understand the experiences of formerly incarcerated people in the community. County, state, and federal governments aren’t obligated to notify tribes when a member of their community is arrested, incarcerated, or released from prison or jail. “In our county, it would be so helpful if we knew every time a tribal member was booked,” George says. The Yurok Tribe doesn’t have, and has never had, a jail. That means anyone who is sentenced to incarceration in another jurisdiction is removed from the community; therefore, it took painstaking work to figure out how many Yurok people were incarcerated in local jails. Over the course of a year, George compiled daily arrest records posted by the two county jails. Then she worked with staff at the tribal enrollment office to see who on the arrest records was tribally enrolled. “It was almost call and response,” she says. “I was saying the names of people in jail, and she was going through our enrollment list.”
On the national level, data on Native Americans and the carceral system is also severely lacking. Racial misclassification—when a police department, court, or other government agency identifies a Native American as the wrong race—contributes to this overarching problem. This makes it difficult to understand the scope of violence against Native Americans, as well as to ascertain the rates of arrest and incarceration. Data also doesn’t identify an individual’s specific tribe, and the data that does exist paints a painful picture. A 2020 Prison Policy Initiative analysis found that Native Americans are twice as likely as white or Hispanic people to be incarcerated in jail or prisons. These numbers vary significantly by state, particularly in states with large populations of Native Americans. George found that Yurok people were 11 times more likely to have been in jail than white people. Once she identified the extent to which incarceration impacted the community, George began interviewing formerly incarcerated men about their experiences with employment, fatherhood, and community belonging. She found that being grounded in Yurok culture and spirituality helped them find meaning and strengthened their resilience. Despite scant resources in rural California and the stigma they faced, these men were engaged fathers, ceremony participants, promoters of food sovereignty through subsistence living, and deeply embedded members of the community. Though they struggled to find employment or manage their substance abuse issues, the men she interviewed exemplified the Yurok value of responsibility that Judge Abby centers in her work.
Court staff at the groundbreaking for the Yurok Tribal Court (Photography by Matt Mais / Yurok Tribe)
The Yurok court provides reentry support to people like the men George interviewed, who are returning to their community after incarceration. The tribe manages two “coming home” houses and provides transportation assistance, as well as case managers and lawyers to help connect people to resources. They also provide free phone cards to every Yurok person who is currently incarcerated, so they can maintain contact with their loved ones while in prison or jail. (In California, it costs 2.5 cents per minute to make a phone call and 5 cents per message on their tablets. This may not sound like much, but incarcerated people in California earn between 8 cents and 95 cents an hour; even a brief call to loved ones can eat up a significant amount of their wages.) But support of currently and formerly incarcerated people is only the first step. “We’re working more and more with state courts to divert people out of their systems,” Judge Abby says. “Because frankly, when they go there and come back, they have not addressed the issues that led them there. That’s not okay.” Nationally, formerly incarcerated people are 10 times more likely to be homeless than the general population, five times more likely to be unemployed, and often continue to struggle with substance abuse or mental health issues. Diverting people from the carceral system to the Yurok court system can help by reducing someone’s sentence or eliminating it altogether if they are able to address their issues in a meaningful way. It also ensures that formerly incarcerated people are treated with a kind of respect and care they often don’t get in a state or federal legal system. “Our best-case scenario would be walking with [Yurok] values,” George says. “Incarceration would be option 10 after exhausting all our other options.”
There are many reasons the Yurok court has been so successful, but the community’s tight-knit nature is certainly a contributing factor. “The network is so incredibly dense. Everybody knows everyone, and there are huge resources in that,” George says. “But when there is trauma in one network node, it reverberates more loudly because we are so connected.” So, trauma becomes an urgent issue for the entire community to help address, not an isolated, individual “failure,” as arrest and incarceration are treated by the American legal perspective. Judge Abby takes pride in the court being a resource hub that’s responsive to community needs. In addition to court services and reentry support, they provide a variety of community programs not typically seen in a court setting. They offer college preparation support, distribute Narcan (a nasal spray that can treat opioid overdose), and bring hot meals to community elders. Anyone can participate, and people can refer themselves to the programs. “You don’t get help in the other system unless you get caught [doing] something,” Judge Abby says. “Who does that? That’s so bad for you. Let the human decide: ‘Look, I made a mistake, I need help.’”
The Yurok aren’t alone in revitalizing traditional forms of justice. In Southern California, Quechan tribal judge Claudette White pioneered the use of tribal values and customs in legal proceedings to reduce incarceration rates. She was highlighted in the 2017 documentary Tribal Justice, alongside Judge Abby. The Navajo Nation Peacemaking Program, which prioritizes nonpunitive dispute resolution and restorative justice, has been a parallel entity to the Western-style court for four decades. It is the largest tribal justice system in the world. These tribal communities demonstrate that we can implement alternatives to America’s violent and racist carceral system. And these alternatives are urgently needed. “Your way of doing things is not working,” Judge Abby says. “So you might want to look at how we managed to survive for a few thousand years.”