By Raquel Anakalea, JD, Bishop Paiute and Kanaka Maoli
November is Native American Heritage Month, offering an opportunity to highlight the history and growth of programs serving Indigenous folks with mental and substance use disorders involved in the criminal justice system. Accounting for less than 2 percent of the national population,  Indigenous people in the United States represent between 2.5 and 3.2 percent of federal prison populations.,  In local and state jails, the estimated prevalence rate of incarceration among Indigenous people is 401 per 100,000, which is more than twice the rate of incarceration among White individuals at 187 per 100,000. (Though starkly disparate in this frame of reference, the incarceration rate among Indigenous people is not the most extremely disproportionate; for Black people, the rate is 592 per 100,000).
In general, Indigenous populations’ mental and substance use disorder rates are similar to the national average (20.6 percent), with the American Indian and Alaska Native (AIAN) rate at 18.7 percent and Native Hawaiian and Pacific Islander (NHPI) rate at 16.6 percent. Nevertheless, there are categories wherein Indigenous folks prove most at risk. For example, the rates of past-year substance use disorders among people aged 12 and older were highest for AIAN and NHPI people, at 10.1 and 7.9 percent respectively, compared with an overall rate of 7.4 percent. Similarly, alcohol use disorder was more prevalent among some Indigenous populations; the rate among AIAN people was 6.4 percent compared to the overall population rate of 5.3 percent (the NHPI rate was lower, at 5.2 percent).
Justice involvement and mental and substance use disorders are increasingly understood to be correlated. The rate at which any mental illness (AMI) occurs among jail populations (35.8 percent) is notably higher than that of the general population (18.3 percent). More and more, it has become clear that access to mental health services and substance use treatment are vital to an effective criminal justice system and essential to sustainable prevention efforts.
Mental wellness is inextricably intertwined with other facets of health like physical, emotional, and spiritual wellness. This interrelationship can be paralleled to interdependence, which represents the principle that both inanimate and animate beings are intertwined so that everything in the universe works together to achieve balance within. Historically, many Indigenous traditions were based on interdependence, centered around harmony among all living things.
While cultural similarities may exist among Indigenous populations, it is important to note that hundreds of different knowledge systems (language, tradition, etc.) exist among them. In the United States alone, there are 574 distinct federally recognized tribal nations. Unfortunately, many Indigenous knowledge systems were wiped out by colonization, and this cultural genocide has had lasting impacts on Indigenous descendants. Indigenous populations in the United States often rank the lowest in tallies of determinants of health. Economic stability, an established determinant of health, clearly demonstrates this issue for Indigenous people. The current (2020) U.S. Census Bureau estimate for the national poverty rate is 11.4 percent. Unfortunately, poverty outcomes for Indigenous populations are not reported with these data. However, a 2017 report from the U.S. Census Bureau estimated a 26.2 percent poverty rate among AIAN people.
Culturally Appropriate Mental Health and Substance Use Resources
Despite economic disparities, there is an overwhelming resilience within Indigenous populations. Cultural revitalization efforts among tribes are mounting, and individuals have been connecting across tribe identity to share cultural knowledge and tradition. As a result, Indigenous kinship has spread across the country and beyond, regardless of tribal nation affiliation. In this way, many religious teachings have been transmuted throughout both urban and rural Indigenous communities. Some well-known teachings and practices include smudging, peyote ceremonies, and sweat lodge ceremonies. These healing practices are now being incorporated more broadly into services for Indigenous people with mental and substance use disorders.
In 2019 the Substance Abuse and Mental Health Services Administration (SAMHSA) published the Treatment Improvement Protocol (TIP) Behavioral Health Services for American Indians and Alaska Natives. In addition to asserting the importance and value of honoring Indigenous people’s cultures and traditions, the protocol also guides organizations in incorporating culturally responsive practices. An older resource from 2009, the American Indian and Alaska Native Culture Card, was the product of several federal agencies, including SAMHSA, the Centers for Disease Control and Prevention, and the Department of Health and Human Services. This provides basic guidance on cultural awareness practices for service providers working with AIAN community members. Other resources for culturally responsive services are culturally adapted mental health treatments, such as Native American Motivational Interviewing. To culturally adapt Motivational Interviewing, an evidence-based counseling approach, researchers partnered with a tribe to align the treatment methodology with traditional values. Such culturally informed resources and responsive approaches are key to helping Indigenous individuals achieve better behavioral health outcomes.
Culturally Responsive Justice System Programs
Practitioners within the criminal justice system have also been moving to provide culturally responsive services to Indigenous people who are justice involved, but not without facing challenges. The complexity of criminal jurisdiction over AIAN individuals and in Indian Country may exacerbate challenges around access to culturally responsive services for Indigenous people involved with the justice system. One source of complication is a 1953 federal legislative act delegating jurisdiction to states within geographical boundaries where the federal government and tribal nations otherwise had concurrent jurisdiction. This legislation is commonly referred to as Public Law 280 (PL 280). PL 280 unilaterally granted Indian Country jurisdiction to state governments in six different states and provided other states the option to take jurisdiction after the passage of state legislation, again without consent from tribes.
Like many states with Indian Country within their borders, the State of Washington opted in and has exercised both civil and criminal jurisdiction in Indian Country under Public Law 280 to varying degrees over the 29 tribes within its borders. The Indian Civil Rights Act of 1968 subsequently created an option for retrocession of state jurisdiction in Indian Country back to the federal government. In Washington, retrocession efforts by tribes began as early as 2012. However, in 2014 the Governor of Washington signed a proclamation allowing tribes to initiate retrocession of jurisdiction formally., 
Despite these legal complexities, communities (tribes and states alike) are embracing culturally responsive practices in the criminal justice system. Washington State Department of Corrections provides access to sweat lodge ceremonies at specific prisons. Although the COVID-19 pandemic did halt some of these services, as of August 2021, access to sweat lodge ceremonies is possible in facilities without a known outbreak.
Tribal nations are uniquely situated to develop culturally responsive programs for justice-involved folks. The sovereign authority of tribes and various state and federal funding sources create opportunities to support problem-solving courts, peer support, and reentry programs.
For example, the Bureau of Justice Assistance (BJA) and SAMHSA provide funding and technical assistance for Tribal Healing to Wellness Courts. Information can be accessed at BJA’s Tribal Healing to Wellness Courts and SAMHSA’s Tribal Training and Technical Assistance Center. These courts are an outgrowth of drug courts, specially designed to incorporate traditional ways of healing. A primary goal of Healing to Wellness Courts is to facilitate reintegration into the culture and practices of the tribal community. Learn more about Healing to Wellness Courts.
Another example comes from the Washington State Department of Corrections, which contracts with a nonprofit organization called Native American Reentry Services (NARS). NARS provides cultural services to individuals currently in prison and recently released. Services include organizing a drumming group that performs at an annual pow wow. Tribal governments and volunteers support NARS’s work. (Read more about NARS.)
Similarly, Port Gamble S’Klallam Tribe has a well-established reentry program to support tribal members reentering society from Kitsap County Jail. Although it was initially created under a federal grant, the tribe has maintained ongoing support. The program is based on restorative practices that move away from punishment and toward holistic wellness (physical, spiritual, emotional, and mental). (Read more about the Port Gamble S’Klallam Tribe’s Welcome Home Program.)
While the governing establishment did not plan for Indigenous ways of life to continue beyond the first or second generation of settlers, Indigenous folks are still here. It is time for the establishment as it now stands to make way for healing by taking accountability for their mistakes in history and by honoring the wisdom of Indigenous perspectives. The culturally responsive adaptations to services described here hint at a shift in approach.
There is a philosophy throughout Indian Country that Indigenous people do not simply live each moment for themselves. Instead, they ask how present actions will impact the future of the next seven generations. This philosophy allows many Indigenous folks to feel a connection that transcends linear timelines and generations. This month is an opportunity to reflect on the many advances in culturally responsive services for incarcerated Indigenous people, but the work cannot stop here. Future generations are counting on us to address the history of trauma and to make paths for healing.
 The term “Indigenous” has been adopted recently as a more inclusive term describing ancestral connection to the land. For the purposes of this article the population described is specific to the United States of America and includes American Indian and Alaska Native (AIAN) and Native Hawaiian and Pacific Islander (NHPI) people.
 Justice involvement spans the time of contact with law enforcement and extends through community reentry, probation, and parole. However, due to data access and collection challenges most of the data provided is specific to individuals in the jail or prison systems.
 Overview of Race and Hispanic Origin: 2010 (census.gov)
 U.S. Census Bureau QuickFacts: United States (census.gov)
 Inmate Race (bop.gov)
 Quick Facts on Native Americans in the Federal Offenders Population (ussc.gov)
 Jail Inmates in 2018 (ojp.gov)
 NIMH » Mental Illness (nih.gov)
 Behavioral Health Barometer: region-name, Volume 6 (samhsa.gov)
 Statistical Models to Predict Mental Illness Among State and Federal Prisoners (ojp.gov)
 Cajete, Gregory, Native Science: Natural Laws of Interdependence, 1st ed, Santa Fe, N.M: Clear Light Publishers, 2000.
 Federal and State Recognized Tribes (ncsl.org)
 A nation of families: traditional indigenous kinship, the foundation for Cheyenne sovereignty (journals.sagepub.com)
 Indian Country is a legal term of art defined at 18 USC § 1151 (law.cornell.edu).
 California, Minnesota, Nebraska, Oregon, and Wisconsin
 Retrocession of Jurisdiction (wa.gov)
 General Memorandum 14-020 | Hobbs, Straus, Dean & Walker, LLP (hobbsstraus.com)
 Change of Seasons: Rebuilding the Sweat Lodge at Clallam Bay (doc.wa.gov)
 After months of requests, Native American religious sweat lodge ceremony will resume at WA prisons (knkx.org)
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