Lacayo is one of the 4.5 million people on probation or parole on any given day in the U.S., almost twice as many people as are currently incarcerated. Community supervision is often thought of as a positive alternative to incarceration. But for many, the strict requirements and intense surveillance turn it into “a secondary form of incarceration,” says Amy Sings in the Timber, an attorney and executive director of the Montana Innocence Project. The consequences for not adhering to the conditions of parole are harsh: A quarter of state prison admissions nationwide are a result of technical violations such as failing a drug test or missing a meeting with a probation or parole officer. “In many instances, in our client populations, there are survival tactics that are criminalized,” reflects Sings in the Timber.

The issue is acute in rural states such as Montana, and disproportionately impacts tribal communities. Native Americans account for 6.5 percent of Montana’s population, but represent 20 percent of the population in men’s prisons and 34 percent of the population in women’s prisons. An ACLU report found that between 2010 and 2017, 81 percent of Native Americans in Montana who were reincarcerated while on probation were charged with a technical violation, not a new crime.

Technical violations send people back to prison because of a lack of support

Complying with requirements of probation or parole can be a high-stakes experience and the system is not set up to help people navigate the complicated network of needs post-release. The threat of punishment makes some fearful to reach out for help, said Lacayo, who is now a community organizer. “[Probation or parole officers] could easily make your life even harder, so it’s very hard to say how you feel,” Lacayo reflected.

There are also a number of practical barriers.

Many conditions of probation or parole require transportation, and in Montana, people may have to drive over an hour on rural highways to reach the nearest probation and parole office. “To be able to even access your supervisor can be impossible in some instances,” says Sings in the Timber.  These long trips are frequent, especially since the Montana Department of Corrections does not accept most urinalysis and drug testing, evaluations, or treatment programs that take place on reservations. Some tribes, like the Fort Peck Reservation in eastern Montana, have a memorandum of understanding with the state that allows tribal members to utilize the tribe’s probation and parole resources to fulfil state requirements. However, this is not a state-wide standard.

Housing is another common requirement of probation and parole, and Montana has 23 housing-related collateral consequence laws that restrict or ban certain forms of housing for formerly incarcerated people with certain convictions. Even pre-release centers — transitional facilities where formerly incarcerated people live under supervision — can be challenging to access, though they are meant to be a stepping stone to independent housing. All pre-release centers in Montana are in urban areas; none are located on reservations. Lacayo also  notes that they are not always designed to be a supportive transitional environment. “When I got to pre-release, one of the directors said ‘Just so you know, I’m not here to be your friend,’” he says. “They have absolute power over you. That’s a very scary thought.” At the time Lacayo lived there, it cost $14 per day. Montanans earn between just 16 cents and $1.25 per hour for employment while incarcerated.

Montana also has 189 employment-related collateral consequences, including bans on many jobs that require occupational licensing, such as commercial truck driving and selling real estate. (One in four jobs in America requires such licensing.) Some of these consequences are mandatory and lifelong, while others are at the discretion of the employer and time limited. Reservations have a separate set of laws, with their own restrictions. Some, including the Fort Peck Reservation, ban anyone with a felony from working for the tribal government, which is often the largest employer in the area. It can be a confusing system to navigate. “The number of employment opportunities are far and few between,” says Sings in the Timber.

Reentry is also expensive. Costs associated with probation and parole — such as mandatory drug tests, restitution, or GPS monitoring — can quickly add up. Compliance Monitoring Services, one of the companies Montana courts use for surveillance, charges up to $360 per month for GPS bracelets, plus a $50 installation fee. If someone can’t afford rent or other fees of probation and parole, the Department of Corrections can garnish their wages, tax refunds, or a tribal member’s per capita payment.

Reentry supports reduce technical violations and recidivism

Social support can be particularly hard to come by as a formerly incarcerated person. A common condition of probation or parole is that you are not allowed to associate with other formerly incarcerated people — especially challenging in small communities or if family members are formerly incarcerated.

Returning to a reservation presents a separate set of barriers. As sovereign nations, reservations do not fall under the jurisdiction of the state. This means that people on probation or parole cannot legally return to their home reservations without extradition waivers, which allowing the state to extradite someone from tribal jurisdiction if a violation occurs. Not all reservations have extradition waiver agreements, however. The Fort Peck Reservation in eastern Montana does, while the Crow Reservation in central Montana does not. Without an extradition waiver, people cannot live on a reservation until they have completed their probation or parole, which may be years.

“It’s almost impossible for [people on probation or parole] without their support system,” reflected Fort Peck Chief Judge Stacie Four Star. “But we see that a lot.” Four Star is pushing for standard memorandums of understanding and extradition agreements statewide, but these ideas have gained little traction.

Recent policy efforts to increase support for formerly incarcerated Native Americans have been unsuccessful. Two bills were introduced in 2019, which would have created a grant program for culturally-based reentry programs and revised an existing reentry housing grant program to require that a certain percentage of funding was allocated to programs serving Native Americans. Neither bill passed. There has been more success with tribal-led programs. The Confederated Salish and Kootenai Tribes Holistic Defender Program, for example, assists clients to find employment, housing, healthcare, obtain a drivers license, and connects people with mentors, such as tribal elders, to provide cultural support.

The pandemic has expedited the need for improved reentry support. In spring 2020, Indigenous and Latinx activists in Montana, including Lacayo, organized a campaign called Let Them Come Home to advocate for an end to arrests for technical violations, temporarily waive probation and parole requirements, and reduce the number of people in Montana jails and prisons. Despite their efforts, Montana actually released fewer people from prison in 2020 than they did in 2019.

Without meaningful reentry support, technical violations will likely continue and people will continue to be re-incarcerated. “How can you jump through all these hoops and follow the rules if you don’t know where your next meal is coming from or where you can sleep safely?” reflected Sings in the Timber. “We need to take a look at technical violations not as someone willfully doing wrong, but as a strong sign that there is support that is needed.”

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In Minnesota, between 27-54 Indigenous women and girls were missing in a given month between 2012 and 2020, according to the task force report that led to the office’s creation. The task force found that Indigenous people comprised 1 percent of the state’s population, but Indigenous women made up 8 percent of all murdered women. Thirty-four percent of Indigenous and Native women experience a sexual assault in their lifetime and nearly double that experience some kind of violent assault, according to the National Congress of American Indians. Research shows that the majority of this violence is committed by white men, yet on reservations — where Native women are ten times more likely to be murdered — tribal governments don’t have the power to investigate most crimes committed by white perpetrators.

The Minnesota task force found the roots of the MMIWR epidemic are racialized and gender-based violence sanctioned by a series of social-legal patterns: forcible removal of Indigenous children and separation of families; creation of a predatory and racist child welfare system; laws that prohibited Indigenous people from engaging with cultural or religious ceremony; retribution for speaking tribal languages; creation of the social-psychological myth that Indigenous women and girls exist to serve white men’s sexual needs; and the use of police and surveillance agencies to criminalize and intimidate Native peoples, among others.

Minnesota’s MMIWR office, the first dedicated and permanent site to address this systemic violence, was proposed by state Senator Mary Kunesh, whose mother was an enrolled member of the Standing Rock Sioux Tribe. The office will collect and track data, review open and cold cases, draft relevant legislation, maintain communications with tribal governments, and coordinate with other state departments, among other mandates. Most importantly, Kunesh says, the office will be “led by Indigenous women and girls, especially those who have lived those experiences with violence and exploitation.” Ultimately, she says, “we really want to find ways for … survivors, our relatives, our communities, and even the perpetrators to heal and to understand what this is all about, and making sure that it’s culturally responsive and definitely a community led effort.”

This is a crisis. But the Minnesota office exists in a place of contradiction: If violence against Indigenous women and relatives is a product of federal and state government operations, then how and why would a government office be able to address it? 

The MMIWR office is expected to work with state, local, and tribal police to formalize reporting and investigative operations where processes are currently failing. For instance, the task force’s final report found that in many cases, police failed to follow the state’s Missing Persons Act, which demands that a report be filed promptly when Native women go missing. Often, there’s also a lack of communication between investigative teams and families or even a failure to identify the race or ethnicity of a recovered body. But that’s only when reports are filed.

A broad distrust in law enforcement keeps families from reporting instances of violence or providing details to police that might help locate victims, survivors, and perpetrators more easily. Mox Alvarnaz, a Kanaka Maoli and the outreach coordinator at the research organization Sovereign Bodies Institute explained: “It is important that we’re there in the room … you don’t want people or powerful entities who have in the past made dangerous and violent decisions against your community to be doing that in your name without you there.” Rebuilding trust is a central goal of the office, given that accurate reporting data is what will allow state agencies to develop solutions.

Kunesh acknowledges that the office won’t be able to address all of the underlying conditions of violence. For example, while the task force cited extractive industries and “man camps” — temporary housing sites for pipeline workers — as facilitators of sexual and gendered violence, there’s no clear demand of the newly formed office related to them. However, there is a movement at work to demand legislators recognize climate violence as part of and related to gender-based and sexual violence. “I don’t know that at the state level [the office] has any kind of power to address the extraction industry,” Kunesh said. “We would love to make that the priority, but even if it’s not stated, it is certainly one of the one of the efforts that we will continue to address.”

There’s also a limit on what the state can do by itself. The U.S. government has repeatedly chosen not to intervene and abate easily addressed conditions that trap Native people in violence. Strengthening tribal sovereignty, for instance, can allow tribal governments and police to investigate crimes on reservations and hold non-Native offenders accountable. There’s also growing awareness of the ways Native women are punished by the criminal legal system for surviving violence, as in the case of a 27-year-old Colville woman named Maddesyn George.

“The biggest problem is just that nobody knows this stuff,” Kunesh said of her non-Native colleagues in the legislature who were surprised to learn how high the incidence of violence is for Indigenous women and relatives. “As we’re sort of peeling off the layers, I feel like our agencies, the government, our tribes, are all looking for ways to address these historic inequities and traumas.”

Powerful floodwaters had destroyed a culvert running under the road, washing a 30-foot section of the highway away. Peterson, 60, drove straight into the ravine and was killed — one of two people to lose their lives there that night. Two other motorists were injured.

“We have other culverts like that that are going to be blown out if we get a bunch of rain,” warned Elliott Ward, the Standing Rock Sioux Tribe’s emergency manager, from his office in Fort Yates. “(R)oads, bridges, culverts, lagoons, housing. Our infrastructure is shot,” said Ward. “A lot of our roads were built back in the ‘50s and ‘60s; they’re dilapidated and need replacing.”

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Tribe administrators on Standing Rock Reservation say having an array of departments and authorities — state, federal, and tribal — in charge of roads and transport infrastructure means that accessing funds to maintain highways and culverts is complicated and riven with bureaucracy. Most federal funding for roads and highways on reservation lands is provided through the Tribal Transportation Program (TTP), which authorized $505 million for 2020 and is co-administered by the Bureau of Indian Affairs and the Federal Highway Administration.

But reservations across the U.S. have a backlog of infrastructure projects, a delay referred to as “deferred maintenance.” Repairs were estimated at $390 million for 2018.

Indigenous communities are some of the poorest in the country. The per capita income in Standing Rock’s Sioux County stands at less than $16,000, according to the U.S. Census Bureau, while in Emmons County on the other side of the Missouri River, the figure is almost double that.

In Navajo Nation, home to around 175,000 people spread across New Mexico, Utah, and Arizona, three-quarters of the roads on the reservation are either dirt or gravel. In an area larger than the state of West Virginia, drainage systems are easily clogged by expanding and migrating sand dunes, making roads impassable during times of heavy rain or thawing. In 2015, ten days of school in the reservation’s San Juan County were canceled because road conditions made it unsafe to ferry students to and from their classrooms.

In South Dakota’s Cheyenne River Sioux Reservation, not far from Standing Rock, federal funding for the community’s 310 miles of roads was just $2.2 million in 2019, one tenth of the estimated minimum needed to bring the roads into good repair. Road ploughing alone cost $600,000 that same year, when a combination of failing infrastructure and extreme weather led to a state of emergency being issued by tribal authorities on two occasions.

Dirt roads in poor condition are a growing problem in the era of climate change, with record-breaking late summer and early winter storms and snowfall that have made it even more difficult for residents to get around. In March 2019, a “bomb cyclone” storm flooded homes and businesses on Pine Ridge Reservation in South Dakota, home to some of the lowest life expectancy rates in the Western Hemisphere. With the ground underneath still frozen solid, rapidly rising temperatures that followed the snowstorm fueled a thaw and several-feet-high floodwaters left whole communities stranded for days.

For vulnerable minorities such as Native communities, the threat presented by the coronavirus has added to the worry. With Covid-19 cases rising in states across the Plains region, being able to safely drive to healthcare and emergency facilities is more critical than ever. Those drives can be long. In Navajo Nation, for example, 12 health care facilities cover 25,000 square miles of land. Early last summer, Navajo Nation reported a higher per capita number of Covid-19 cases than New York state, ground zero for the outbreak last spring. Meanwhile, lost with the passing of 1,152 members of Navajo Nation are generations of the same families and coveted oral histories.

The culvert under Highway 1806 into which Trudy Peterson’s car dived in the summer of 2019 wasn’t repaired because it fell into the “long-range projects and costs list” in the Tribe’s Long Range Transportation Plan for Standing Rock document, published in December 2018. It meant there wasn’t funding set aside to repair the culvert, estimated at costing $1.5 million, or it wasn’t considered high priority at the time. The shortfall facing Standing Rock, according to the Tribe’s director of transportation and planning, Ron His Horse Is Thunder, is down to Congress and the Federal Highway Administration not releasing enough funds. “We go to Congress every year,” he told the Associated Press in August 2019. “They just don’t give us enough money to take care of the issues.”

Nor could the tribe, says Elliott Ward, avail itself of funding from the Federal Emergency Management Agency (FEMA) to repair the highway, as it comes under BIA jurisdiction. The culvert that killed Trudy Peterson had been identified for replacement seven years before it was washed out, according to an internal document.

Recent months saw some efforts in Washington DC to help ease the crisis. In August 2020, then-Representative Deb Haaland (D-N.M.), now Secretary of the Interior Department — and the first Native American to hold a cabinet position — spoke of how the Invest in America and Moving Forward Acts would result in funding increases for the TTP. In November 2020, four senators including Elizabeth Warren introduced legislation that would send funds toward infrastructure improvement efforts, including traffic calming and pedestrian facilities on reservation lands. The bill would have seen the opening of a new program within the Department for Transportation with an annual budget of $25 million. It has not been reintroduced in the 117^th Congress.

But throwing money at the problem isn’t a catch-all solution. Interjurisdictional cooperation is key to determining how roads and road safety are managed in many reservations, says Kathy Quick, a co-author with Guillermo Narváez of a University of Minnesota study about improving roadway safety on reservations. “Matters of responsibility and authority — who has it and who may exercise it — are frequently in question and contested in most reservations,” she said.

“The boundaries of reservations and of tribes’ jurisdictions to formulate, implement, and enforce safety-related policies and plans are frequently questioned and contested by federal, state and local government authorities.”

For Trudy Peterson’s daughter, Jade Mound, those issues don’t compare to the raw pain of losing someone to poor road conditions. “I don’t want anyone else to have to go through what my family has gone through,” she told the Bismarck Tribune in September 2020, when Peterson’s and other families filed a claim against the BIA seeking monetary damages and better maintenance of roads.

“There is absolutely no reason that the BIA roads should be in the condition they’re in.”

This massacre, followed by subsequent relocation to Fort Humboldt, resulted in the death of nearly one half of the pre-contact Wiyot population — estimated at close to 2,000 people. Today, the tribe has returned to near its ancestral territory, after long legal fights to gain federal recognition, with close to 600 Wiyot people living locally.

Eureka’s return is believed to be the first time a local government has returned land to a tribe in the U.S. Eureka City Council member Kim Bergel described the return as “the right thing to do.”

Eureka’s actions are significant politically, spiritually, and also economically. While Duluwat Island is relatively small, returning the land takes the tiniest step towards rectifying the injustices that the United States has committed towards Wiyot peoples. It signifies a desire to help Wiyot peoples rebuild their community and nation after centuries of dispossession and genocide.

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From 1776 to 1887, the United States transferred nearly 1.5 billion acres of land into American control. Initially, this was done through treaty and executive order or through forcible removal of Indigenous peoples from their homelands, often putting them on reservations. While this made up the majority of land seizures, the seizure of land also included the 1887 Dawes Act, otherwise known as Allotment, which sought to individualize Indian land ownership, converting Indigenous peoples into models of homesteading farmers. The Act would cause Indigenous-controlled land to go from 138 million acres in 1887 to just 48 million acres by 1934.

The seizure of lands and territories and the creation of reservations is a significant reason why Indigenous communities have such concentrated poverty in the United States. Imagine being forced to move from the only home you have ever known to a place you have never been, with fewer resources to succeed there, and then being told that the lifestyle that has helped you prosper is “uncivilized,” and that to survive, you need to embrace a completely new worldview. Not exactly a model for life, liberty, and the pursuit of happiness.

For many, the taking of land coincided with an effort to eradicate Indigenous peoples in general. Peter Burnett, the first governor of California, remarked as such when he told the nascent legislature in 1851 “that a war of extermination will continue to be waged between races, until the Indian race becomes extinct.”

To exterminate a whole group means not just the physical killing of a community. It means the destruction of a worldview, a home. This extermination created Allotment. It created boarding schools that sought to “kill the Indian, and save the man.” It created Indian termination policy, which sought to terminate tribes, relocating and assimilating Indigenous peoples. All of these American policies created the conditions for the intense poverty that Indigenous peoples face today.

These processes of extermination have not resulted in the erasure of Indigenous peoples in the United States – far from it. They have altered the ways in which Indigenous peoples interact with the world, though. Cutcha Risling Baldy (Hupa/Yurok/Karuk), assistant professor of Native American Studies at Humboldt State University, notes two things in this regard: First, that the world that contemporary Indigenous peoples inhabit is a post-apocalyptic one. Second, that this post-apocalypse alters Indigenous peoples’ abilities to thrive socially, communally, politically, and economically. When your base mode of living for generations is mere survival, how can you imagine building anything beyond that?

The combination of both land seizure and eradication efforts has resulted in significant economic disparities for Indigenous peoples in the United States. The 2008 Census estimated that 30 percent of all American Indian/Alaska Native (AI/AN) peoples were in poverty. This reached 40 percent for those living on a reservation. Comparatively, the total U.S. population recorded a poverty rate of 16 percent. According to a 2017 Bureau of Labor Statistics report, the AI/AN unemployment rate was 7.8 percent. Comparatively, the total U.S. rate hovered around 4.4 percent.

This is what makes the return of Duluwat Island to Wiyot peoples so important. It acknowledges past wrongs, understands how the original seizure of land harmed generations irreparably, and tries to rectify that in a culturally, spiritually, politically, and economically significant way. In giving back the land, instead of Wiyot Tribe buying the land back as has happened previously, Eureka took a step towards conciliation.

While the United States has often tried to find alternative methods of compensation for Indigenous land, the federal government would do well to follow the example of Eureka and the Wiyot Tribe. Just give the land back.

The federal government has long attempted to sever tribes from the land — their source of knowledge, culture, and health. Through war and forced relocation, tribes were physically removed. Policies such as the 1887 General Allotment Act forced many to adopt sedentary lifestyles and use Western agricultural techniques. And contemporary legal restrictions on centuries old fishing, hunting, and gathering techniques means that tribes are still limited in how they can gather foods and medicines.

Food sovereignty — efforts to re-create local, sustainable, and traditional food systems that prioritize community need over profits — has been one of the major ways tribal communities are combating disparities driven by colonial policies. Food sovereignty looks different in every tribe, as it is based on community need and tribal tradition, and it isn’t just about food. Swinomish efforts have focused on the impacts of climate change, which is already threatening their community health.

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History led many reservations to become food insecure, and federal support is limited. Hundreds of tribes utilize the Federal Distribution Program on Indian Reservations — which since 1973 has distributed bulk food items to rural Native Americans who don’t have access to Supplemental Nutrition Assistance Program-eligible stores — but the food often doesn’t meet basic dietary standards and sometimes arrives spoiled.

Loss of land and traditional foods has caused myriad health problems in tribal communities. Native Americans have the highest rates of diabetes of any racial group, as well as disproportionately higher rates of cancer, heart disease, and stroke. Mental wellbeing has also been impacted: Some scholars argue that colonial violence like displacement and spiritual disconnection from the land has led to cross-generational trauma and unresolved grief for Native individuals and communities.

Climate change is making this worse.

Historically, the Swinomish harvesting calendar revolved around 13 moons. The calendar corresponds to seasonal shifts throughout the year, with each moon bringing a new set of ceremonies and foods to be collected and processed. The first moon of spring, moon when the frog talks, is when herring and smelt are harvested and sitka spruce, red cedar, and Oregon grape roots are collected. In the moon of the sacred time, during the end of December and January, cultural traditions are passed from elders to younger community members.

The seasonal changes associated with each moon are becoming less predictable with climate change. Extreme heat waves in the normally moderate climate stress plants and may stunt root development. Less predictable or extreme tides (whether too high or too low) hamper clam digging and other shorefront gathering.

Public health leaders, including the Centers for Disease Control and Prevention and the World Health Organization, recognize that climate change has direct impacts on human health. These impacts may be even more acute for the Washington tribe: the reservation is 90 percent surrounded by water, and salmon, crab, and clam are major sources of food. The sea is of intimate importance.

Yet Western measurements of health and climate impact do not take cultural history, interdependence, and connection to the land and non-human world into consideration, often focusing exclusively on individual, physiological health impacts. For example, a toxicologist may look at pollutants in seafood and advise the Swinomish to eat less. Yet when taking into consideration food security, ceremonial use, and transmission of traditional knowledge, the removal of seafood would be detrimental to Swinomish conceptions of health; climate change is threatening the tribe’s autonomy.

To address this disconnect, in 2003, Dr. Jamie Donatuto, the environmental health analyst for the tribe, set out with elder Larry Campbell to develop indigenous health indicators, which they hoped would bring a more holistic and culturally relevant lens to public health policy, climate change predictions, environmental risk assessment, and the tribe’s food sovereignty work. After interviewing more than 100 community members, they determined the Swinomish health indicators to be: self-determination (healing and restoration, development and trust); cultural use (respect and stewardship, sense of place); natural resource security (quality, access, safety); resilience (self-esteem, identity, sustainability); education (teachings, elders, youth); and community connection (work, sharing, relations).

One of the first challenges they wanted to tackle using these indicators was climate change impacts. After gathering data on predicted storm surge, sea-level rise, sediment movement and more, they led a series of workshops with elders, youth, clam diggers, and fishers, to gauge which beaches they should focus their limited resources on. They identified several that were both culturally significant to the tribe and at high risk for climate impacts, and focused their workshops on traditional foods to contextualize these problems.

“It’s not about outreach, it’s not unidirectional. It’s about really engaging them,” Donatuto reflected. Now, based on community input, the tribe is developing clam gardens that are more resilient to climate impacts such as sea level rise, storm surge, and possibly ocean acidification. Clam gardens are a traditional way of managing a beach ecosystem to create optimal habitat for clams while ensuring food security for the tribe. Dr. Donatuto’s team also shared community feedback with the Swinomish Senate, who valued their priorities equally to scientific data when constructing the tribe’s climate change adaptation plan.

Beyond policy changes to address climate change impacts, elders were also concerned about a generational disconnect in traditional ecological knowledge. Using the 13 moons as a guide, in 2015 the tribe developed an informal curriculum to educate youth on the lunar calendar and traditional foods. Though it has attracted interest from local schools, Donatuto stressed that it is a land-based, community-led curriculum. The tribe hosts dinners and other events in which elders and educators lead community members outside to learn, for example, tree identification, how to collect tree resin, and how to process it. Participants not only learn about traditional foods, but learn it through traditional methods of knowledge transmission.

Swinomish food sovereignty and climate change adaptation efforts are reflective of national movements in Indigenous reclamation and resistance. Tribes recognize that in many cases, disparities that face Native communities are borne from and exacerbated by systemic colonial and racial violence, including the devaluation of Indigenous knowledge. So how could the same system that produced these disparities be a source of the solution?

Resistance and reclamation take many forms. The White Earth Band of Ojibwe recently recognized the “personhood” rights of wild rice in an effort to thwart oil pipeline construction through their habitat. Some tribal courts are beginning to draw from traditional gender and familial beliefs instead of U.S. federal law in domestic violence, divorce, and custody cases. And studies have found that Native students in schools that teach entirely in tribal languages are often higher performing than their counterparts that attend English-only schools, including on English language standardized tests.

As these and Swinomish efforts reflect: Revitalization of Indigenous knowledge, politics, and land relations is not just about remembering traditions, but solving urgent contemporary issues.