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Document Type

Article

Abstract

Pretrial detention rates in the United States are down, except in rural counties. Indigenous people are both over-represented and under-protected in settler-colonial criminal justice systems. Yet the criminal justice needs and experiences of rural and Indigenous people are largely overlooked in criminal justice reform research and discourse. I examined the role of rurality in bail administration in Pretrial Justice in Out-of-the-Way Places – Including Rural Communities in the Bail Reform Conversation. There I explained how bail reform measures centered on urban and suburban needs and demographics fail to address pretrial justice challenges and opportunities unique to rural communities. This Article builds on that work and examines the pretrial justice landscape in and around rural Tribal communities—that is, rural Indian reservations and their neighboring bordertowns. Pretrial justice in rural Tribal communities warrants separate treatment in the reform discourse because it is administered against the backdrop of complex federal laws governing Indian Country criminal jurisdiction that can result in residents of these communities having matters pending in Tribal, state and federal court at the same time, even in matters stemming from the same incident. This can produce inconsistent bail and detention outcomes and require defendants to answer to more than one pretrial services office while navigating conditions of release informed by different justice norms. This federal jurisdictional structure can also channel Tribal defendants away from Tribal justice and into state or federal systems, where they are overrepresented and less likely to receive culturally appropriate services. This Article highlights how federal laws governing Indian Country jurisdiction uniquely position justice-involved residents of rural Tribal communities for failure at the pretrial stage and, ultimately, pull them deeper into the criminal justice system. To address this dynamic, I advocate for reform measures designed to make pretrial justice more effective and less harmful for residents and communities in and around rural Indian Country. This includes a proposal that state courts transfer pretrial jurisdiction over Tribal defendants with pending state court charges to Tribal courts for pretrial supervision. This is a novel, yet natural, extension of the current federal Indian Country situationally dependent criminal jurisdiction paradigm. I also propose that state bordertown courts follow the lead of Canadian courts and include consideration of Indigeneity in bail administration. Finally, I urge all rural courts, state and Tribal, to avoid relying on pretrial risk assessment tools that have not been validated for the communities they serve.

DOI

https://www.doi.org/10.70657/SDLR.V71.I3.548

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