Brieanna Watters and Robert Stewart on Native Americans and Monetary Sanctions

Dave Chancellor [00:00:03] Hello and thanks for joining us for the Poverty Research and Policy podcast from the Institute for Research on Poverty at the University of Wisconsin–Madison. I’m Dave Chancellor. For this episode, I talked with Brieanna Watters and Robert Stewart about a paper they wrote on Native Americans and monetary sanctions involving the criminal legal system. Waters is a Ph.D. candidate in sociology at the University of Minnesota, and Stewart is an assistant professor in the Department of Criminology and Criminal Justice at the University of Maryland. If you want to read their paper yourself, we’ll have a link to it in the show notes. But for now, let’s turn to the interview.

Dave Chancellor [00:00:39] We are talking about a paper, the two of you coauthored on Native Americans and monetary sanctions, mostly looking at Minnesota. And your paper was in an early 2022 special issue of RSF, the Russell Sage Foundation Journal of the Social Sciences on monetary sanctions in the Criminal Legal System. And so broadly, we’re talking about Native people here and their interactions with the criminal legal system. And this just especially seems like a paper where there’s so much contextual background information that we should maybe unpack. And so maybe first off, what is unique about the Native American experience, especially when it comes to interactions with the criminal legal system?

Brieanna Watters [00:01:18] Yeah. So this is really a central point of the paper. And it’s also really important for understanding Native American experience just more broadly. And this point can be understood partially through the many different terms that are used to describe Native people. So Indigenous, Native American, American, Indian, etc. in their homelands. So reservations Indian country in these terms, even among native people are used interchangeably. So while Indigenous is a more comprehensive term, it’s used to designate first peoples. In our paper we use Native American and American Indian to refer to indigenous peoples in the U.S. specifically. While the term American Indian is usually and widely used as a racial category, it’s more so a political and legal designation. And this political status is really the central factor that makes native people and their experience unique when it comes to interactions with the criminal legal system. So unlike other racialized or marginalized or criminalized groups in the US, native people in their governments pre-date the existence of the United States. So tribal nations encountered European colonialism and as we argue in our paper, continue to exist under settler colonialism. So Indian nations, what I’m saying is Indian nations are unique in their own right because of that political status. And they have tribal sovereignty and they govern over areas of land that include Indian reservations. So again, in our paper, we center Indian reservations by using the term Indian country, and that refers to reservations and Minnesota counties that overlap those reservations. And this is because we do this because the majority of native people in the US live on reservations or in the counties that overlap reservations. But to get really to your question, the Native American experience is also unique because tribal lands in reservations have been historically characterized by a complex jurisdictional maze. So this means that across Indian country, jurisdiction really depends on several things. It can depend on the identity of the person who commits a crime, whether that crime occurred on the reservation and what crime actually occurred. So, for example, in most cases, a non-native person who commits a crime on tribal land can’t be prosecuted by a tribe. That’s usually a matter for county or federal officials. But if a native person commits a crime against another native person on the reservation, the tribe may have jurisdiction in that case. And so this really makes the Native American experience unique when it comes to their interaction with the criminal legal system.

Robert Stewart [00:04:23] Yeah, I think the only thing that I would add is that these are continuing issues that are not the struggles that that Brieanna talked about or the kind of negotiation of these terms and and these jurisdictions and things. These are all continuing issues that are that are still being decided and dealt with at the Supreme Court recently. The MCGIRT vs Oklahoma case was specifically about this jurisdictional issue that Brianna just mentioned. The question was whether or not the state of Oklahoma had jurisdiction over the defendant. MCGIRT Because it was argued that actually that is still considered part of the reservation. Right. And the Supreme Court just recently decided that, yes, in fact, almost half of Oklahoma is still part of a reservation. And not only that, though, this political status of American Indian is at the center. Or at least I think we I think Brianna and I believe it should be at the center of the current EPA cases that are moving their way up to the Supreme Court as well. So this is not something that’s just in the past. Native communities and native sovereignty is continuously having to defend itself throughout the courts, all throughout the country.

Dave Chancellor [00:05:36] That’s really helpful. You know, I want to talk definitions a little bit. When we’re talking about monetary sanctions, you know, what are we looking at? And also, you know, kind of embedded in that like how do you, as researchers get information on on the fines and fees and things that are assessed by courts and other actors? Tell me about that.

Robert Stewart [00:05:54] Yeah, that’s a great question. You know, the monetary sanctions are really it’s really a blanket term that we typically use to think of the array, like the variety of financial obligations that are imposed on people as a result of an interaction with the criminal legal system. So these these can include and they often do include a combination of fines like you would typically think of with a criminal sentence, but also the various fees that people that go through the court system have to deal with or do pay, as well as surcharges, restitutions and various other costs that in fact, we don’t always just limit this to specifically just the court system, but it’s also lots of other, you know, like if you’re on probation and you have to pay probation fees or you have to when you’re arrested, you have to pay a booking fee typically. And so monetary sanctions is this is actually just a broad term to think about the the financial obligations that a person accrues as they move through the criminal legal system. So but in this paper, to be clear, we’re focusing just on those that come as a result of interaction within the court. And so the various categories, the fine, the fee surcharge, these all kind of have particular purposes or at least they’re thought of as having particular purposes. So for example, fines are typically, as I said, understood as part of that sentencing, part of the punishment. And Restitutions, on the other hand, are generally thought of as is a mechanism for repaying victims for whatever losses they may have suffered. And then fees and surcharges typically go towards paying the expenses of running the criminal legal system so they’re more or less user fees. And so the most common way to analyze these data, at least for for research purposes, is through analysis or at least having access to criminal court administrative data. The thing is, you know, this project, this paper that we’re talking about today is part of a larger multi-state study of monetary sanctions. And so within that larger project, we had researchers from eight different states. And it was kind of amazing, the variety or the variations and what data were available where. So in for example, in Minnesota and Washington, we were able to get relatively comprehensive data at the individual at at the case level that included lots of details about the particular case and the case process, as well as fine and free amounts of monetary sanctions amounts. So we could actually calculate by individual or by by case, other states had only partial or incomplete data. So they might they might have data that’s not statewide. So you could get them maybe for a couple of counties or cities. Maybe they only offered a single year. In some cases, they would only offer aggregate level data. Or they might be limited to, say, people that were currently on probation or parole and not include people that are currently moving through the system or that were not sentenced to probation. So back to the question. Generally, we get these data directly from the courts, but it varies quite a bit from place to place and jurisdiction of jurisdiction as well as based on the structure of the particular court. So in Minnesota, for example, we have a unified court structure in which we just have one level of court. It’s the district court and that’s it. So the district court does everything from probate to family to criminal and civil and whatnot, right? Whereas in other places, like in in Washington, they have a municipal level court, they have a superior level court which which handles more serious cases. And then in other states, they have lots of courts and they do different do different things. And so that obviously makes our job much more difficult because the more complex the system, the more. The more varied the data can be or the you know, the data can be much harder to kind of collect, at least in a comprehensive way.

Dave Chancellor [00:10:00] Brieanna, I want to ask a quick follow up question that, you know, we are the Institute for Research on Poverty. I want to think a little bit about like fines and fees or these monetary sanctions, legal financial obligations and just how they interact with poverty and in what sort of impact they have, especially on people who are operating on a lower incomes. Can you can you help kind of break that down for us a little bit?

Brieanna Watters [00:10:22] It’s just like anything else. It’s that extra burden when you’re already in a place to not be able to pay for things or afford things. And I think that if we’re talking specifically about tribal communities and native people who live in some of the most impoverished places in the US geographically, monetary sanctions in general, they almost become a burden that makes it so that there’s like this ripple effect. So. You stop caring about your credit score because buying a house is not in the future for you or getting a loan is not in the future for you. So so the burden becomes so great that there’s this ripple effect in terms of finances and poverty that makes it a lot harder to get out of.

Dave Chancellor [00:11:21] I want to think a little bit more about some of the structures that are at play here. Brieanna, you talked about settler colonialism when you kind of opened us a few minutes ago. And Rob, I I’ve heard you talk about just some of the complex interplay of history and geography that are going on in these situations, and especially when it comes to the experiences of Native Americans interacting with the state and how those are bound up in history and geography. But this is a big question, you know, and I know we only have a little bit of time here, but in this context, how how can we think about that?

Brieanna Watters [00:11:52] I think one of the most important things in this context is to think about the location of Indian reservations and how they became so rural, why they are so rural. And it was a historical process over time. Right. So there was the first legal justification for removing Indians was the Indian Removal Act in 1830. And then after this legislation passes, tribal communities who are located east of the Mississippi River are forced to locate west of the river. And anyone who doesn’t move west of the Mississippi is compelled to give up most of their land. And and so they’re increasingly becoming concentrated on small and geographically isolated areas. So, for example, in Wisconsin, the Ojibwe, were made to give up their control of almost a third of the northern part of the state, and even today, they retain only a small portion of land. So in that historical context, as European settler populations are surging west of the Mississippi, then toward the late 1800s, there’s increasing pressure on those tribal communities who just gave up their lands and relocated to give up more of their new lands. And then in addition, there’s pressure on those Native nations who had always lived west of the Mississippi to give up large portions of their land that had traditionally been under their control. And so over the course of this process of expulsion, some lands were obtained violently through military confrontation, and others were obtained through what we think of as relatively peaceful treaties. But as we highlight in our paper, a lot of treaties were gained under enormous pressures and false pretenses. And we also know that almost every treaty made between native nations and the government has been broken at some point. And so these lands that were reserved for tribal communities were generally regarded as the least desirable by white settlers in the government, and they were almost always located really far from major population centers and the transportation roads that would later become our modern system of cities and highways. And so today, reservations are located in very isolated rural areas and as I mentioned, have some of the highest poverty rates across the country. And so for most of the 19th century, the policy really was to isolate and concentrate Native people in places that were very impoverished and had few natural resources. And so this experience is shared among Native people, but individual community experiences really depended on where those communities, traditional homelands, were. And when the government sought their lands.

Dave Chancellor [00:15:00] Thank you for that, Rob. I want to ask kind of a follow up question there. Brieanna was talking about sort of this rural aspect a bit. And, you know, I don’t want to be like “some people,” but I think that there is a sort of a U.S. popular imagination that equates rural with white and oftentimes leads to communities of color being understudied. Is that something you can comment on and help us think about in this context a little bit more?

Robert Stewart [00:15:26] The vast majority vast, vast, vast majority of criminological and sociological research on crime and punishment that we have today, at least, you know, generally speaking, is focused on large urban centers, you know, large cities and particularly densely, densely populated areas. We just don’t know very much about the experiences of generally of. But the experiences of people, you know, in rural areas and and in the criminal legal systems in those areas. Now, to be clear, that that that literature is growing, and there’s a lot of people doing really fantastic work in that area now. But it is I mean, it’s a massive hole in the literature. And I think, you know, as a person who grew up in, you know, rural southern Minnesota, you know, kind of seeing a lot of the literature and it being framed around these kind of, you know, urban or suburban areas. I mean, I think it’s I think it’s a big I think it’s a big hole in the literature. Now, not only do we not know a lot about how the criminal legal systems operate in these areas, we also don’t know a lot about how the criminal legal systems and people of color that experience operates in these areas. Rural areas tend to be, generally speaking, at least compared to urban areas tend to have whiter populations. But we also find, particularly in this paper, we also find particularly high and particularly stark fines and fees compared to, say, two white defendants in in rural areas. In fact, if we just look at just the urban areas, we get a very distorted picture because in our data, the Minneapolis Saint Paul metropolitan area, fines and fees and in that area are pretty low and they’re relatively steady, although even so. So there aren’t those stark disparities. When we jump out into non-metro counties in Minnesota, we find a lot more difference. Right. And we find a lot of defendants of color who almost totally are receiving higher fines and fees than than any other group.

Brieanna Watters [00:17:44] I actually really like that question because I think that popular ideas about racialized space. And rural America as white space. They those ideas have consistently misunderstood or ignored these dynamics of race, space and rurality. And that includes the historical presence of indigenous people and the complexities of settler colonial histories in these spaces. And I would add that American Indians are not only indigenous to both contemporary rural spaces, but also urban spaces. And they’ve long maintained. An active and very central presence in rural America, despite persistent patterns of displacement, exclusion, disenfranchisement, dispossession. And so I do think that there is a real need to recognize rural America as having always had people of color, you know.

Robert Stewart [00:18:56] And I would just toss in to that. I also work on disenfranchisement as, you know, collateral consequences and felon disenfranchisement in particular. And I think we have this, again, this distorted view of who is disenfranchised, at least speaking. You know, speaking of Minnesota, 65% of people who are disenfranchised in the last election. We’re not living in Minneapolis and Saint Paul or Hennepin and Ramsey, Hennepin and Ramsey County, which is where Minneapolis and Saint Paul are. 65% we’re living in. You know, outside of those two counties. And so when we think of some of these policies, like disenfranchisement and these other things, we often completely dismiss, you know, these communities, you know, again, only focusing on these urban communities as if they are exemplifying everywhere else.

Dave Chancellor [00:19:48] I do want to move to your paper and actually give you an opportunity to talk about that. And, Rob, you kind of previewed it this, but, how do fines and fees rates compare for Native Americans and other groups and what you found?

Robert Stewart [00:19:59] So we we looked at more than 2 million criminal and traffic cases filed in Minnesota from about 2010, going out about from 2010 to 2015. And so when we’re looking at these cases, particularly across the board statewide cases that had Native American defendants were sentenced to an average of $267 in monetary sanctions, which was the second highest overall average at the case level, with Hispanic defendants receiving the highest average at $273 per case. And so the average case level monetary sanction for other groups was quite a bit lower in the 235 to $240, $48 range. And that includes black defendants, Asian defendants and white defendants. But looking at how the amount of fines and fees that are imposed is only part of the picture. Right. As Brianna mentioned, you know, very adeptly described rural areas, but particularly native communities and rural areas that are heavily affected by poverty. Right. And so when we think about the fines and fees that are imposed, we have to also thinking about whether or not people are able to pay those fines. And so we also wanted to look at the outstanding debt. Right. So how much at least at the point when we cut it off at two in 2018, how much of that fine and fee balance was still outstanding? And what we found was that cases with Native American defendants had outstanding balances higher than every other group and actually more than 20% higher than cases with Black defendants, which was the group with the second highest amount. So not only are native defendants receiving higher average monetary sanctions, we also saw, at least statewide, it seems, that they have a more difficult time paying down those monetary sanctions.

Dave Chancellor [00:21:54] You’ve both emphasized sort of the importance of thinking about geography as we think about these questions, these issues. And so one of the things that I know you looked at is how these rates of fines and fees and debts varied with proximity to reservations and tribal lands sort of within these counties and parts of Minnesota. So what did you find and how should we think about that?

Robert Stewart [00:22:19] So the first thing we did is we split Minnesota into the counties in Minnesota into kind of three buckets. So the first bucket is the six county kind of urban suburban metropolitan area around Minneapolis and Saint Paul. And then in the second bucket was outstate or non-metro counties in Minnesota that did not overlap with a reservation or other tribal lands. And so so that was our second bucket. And then our third bucket was non-metro counties that did overlap with reservations or tribal lands, which we referred to as again, as Indian Country. And so we found that defendants in non-metro counties were receiving higher average fines and fees than the metro area. It was actually considerably higher. But Native American defendants in particular received among the highest falls on average of any racial or ethnic group and the highest in counties that overlapped with reservations. So this is consistent with the statewide picture. However, the racial and ethnic differences in geography were much more striking and perhaps more consequential. When we examined outstanding LFO debts among the various groups in relation to the where they were located. So in non-metro counties where residents are more likely to be affected by rural poverty and lack resources, Native American defendants had much larger outstanding debt balances than any other group, and especially in in Indian country, in counties that overlapped with reservations. So in non-metro counties that did not overlap with Indian Country, the average case level outstanding debt for Native American defendants was was about $123, which was double the average debt for white defendants and 20% higher than black defendants. But in Indian country counties that overlapped with reservations, the average outstanding LFO balance for native defendants was often a multiple of other groups. It was three and a half times the average of the white outstanding balance, almost three times the average Hispanic balance, and nearly double the average black balance. So in other words, areas that were close to reservations, that were in close proximity to reservations, Native American defendants were subject to greater monetary sanctions and more likely to carry greater monetary sanction debt loads, all while living under greater poverty and having less access to various resources and things that we talked about earlier. These findings suggest that the higher monetary sanction orders and debts experienced by Native Americans are not just due to the higher distribution of indigenous peoples living in Minnesota’s rural counties, but also to the specific reservation based experiences of greater punitive U.S. debt and other types of inequality.

Dave Chancellor [00:25:25] You talked about some of these existing inequalities, right. And, you know, and especially when we’re thinking about issues of debt and other things like that. But how do these monetary sanctions like amplify or maybe just show some of these existing inequalities that we need to be thinking about when it comes to Native Americans and for other groups, too?

Brieanna Watters [00:25:43] Yeah. So we interviewed about a few dozen people in Indian Country eight, and that included people who are subject to the debts. And we also interviewed court actors such as prosecutors, judges, public defenders. And what we found was that pervasive poverty was identified as a pretty consistent strain on these areas, but in particular among native communities. And the poverty rate in Indian country counties is about 15%, about 5 to 6 points higher than the rest of Minnesota and very highly concentrated in and around reservations. And most of those that we spoke with described this sort of general lack of opportunity and resources in the area. Yeah. So when describing how monetary sanctions were applied in these local jurisdictions, every public defender that we interviewed took issue with how indiscriminately fines and fees were levied against their clients. Judges and prosecutors we spoke to, on the other hand, characterized their sentencing as prioritizing equality before the law. What became clear not only from our interviews, but also from observing more than 40 hours of court proceedings, was that a defendant’s ability to pay was rarely seriously considered at sentencing, which is obviously consequential for native defendants in their communities.

Dave Chancellor [00:27:24] What else should we be thinking about, especially in the context of Indian Country?

Robert Stewart [00:27:28] The compounding debts that we’re talking about having perpetual balances, as Brianna mentioned earlier, are not just in the criminal legal system, but other many other areas in people’s lives. And having these debts or these balances in collections, it’s very much become an expected part of life in this area. But it’s also at least based on the you know, from from what we heard from many of the people we spoke to, it also contributes to a sense of alienation and despair. So receiving a fine or a fine or a fee or whatever. It’s not just one single kind of data point or that’s one thing that happened one time. But really it’s really kind of part of a long sequence of relentlessly accruing and very overwhelming financial strain that defines access to, you know, things like resources or or especially mobility. And I think that’s one important issue that’s particularly relevant for these rural or more rural areas. So up until recently, if you were in Minnesota and you had an unpaid fine or fee from a criminal case or a traffic case that would almost always lead to a suspended driver’s license. So an unpaid fine or fee would result in having your license suspended. And so in these rural areas where public transit is basically nonexistent, right, there’s basically no public transit whatsoever. Having a suspended license can can really be devastating. So nearly every actor we spoke with reported that every every court actor, every prosecutor, every judge, every public defender, every probation officer told us that transportation access and particularly or specifically driver’s license suspensions for unpaid fines and fees was a major widespread issue in their local community. And this is especially true for those that live on a reservation. So, for example, one of the reservations in the area that we up in this Indian country area in northern Minnesota, there’s two giant lakes basically in the middle of the reservation. And so to get from one side of the reservation around to the other side, it’s like an hour and a half drive. Right. And in this county. But the courthouse is on the very southern part of that county. And so if you’re up in that northern part, right, it’s not a straight shot. You’ve got to go all the way around this giant lake. And not only that, but you don’t have a license. So how are you going to get down there? And so, you know, it’s a real issue, at least in the paper we talk about how we think that this all contributes to a broader sense of spatial isolation that is particularly felt among native communities.

Dave Chancellor [00:30:07] To both of you, in doing this work. What have stood out as things that, you know, policymakers or maybe people that are somehow implementing these policies around fines and fees and other things, and what should they be paying attention to? And, you know, what do you want to leave us with here?

Robert Stewart [00:30:24] Perhaps one of the more surprising things that we heard or themes that we heard from many court actors, from judges and prosecutors in particular, was how little priority or emphasis they placed on the actual fines or fees as as a sentencing component, as a tool for sentencing or, you know, a punishment tool. Most of the court actors that we spoke with were much more concerned with things like incarceration or probation or like probation conditions, the various types of punishments for criminal convictions. And they were rarely focused, if at all, on fine and fee amounts. So for many of the fines and fees are financial sanctions, and other fines weren’t particularly effective tools and had very little punitive value. We would ask them, for example, okay, so when you know, when you’re considering know sentencing for a particular case, what are the things that you’re thinking most about when it comes to a sentence? And I don’t believe there was a single time in which unless they were prodded, a court actor or a prosecutor or a judge said a fine was one of the priorities of what they would think about. It was always about incarceration and it was about probation and the various details related. And so, you know, we’d urge prosecutors and judges to actually, you know, to reconsider whether fines and fees are actually a necessary part of this process and whether they’re performing any utility at all for what they’re trying to do. But the second thing is, at least for my perspective, is that if we’re going to keep fines and fees and continue using these as a tool for for sentencing, then we would encourage policymakers to consider legislation that provides court actors with at least some guidance on how to consider a defendant’s ability to pay in sentencing. You know, as Brianna mentioned, very rarely do we ever see, if ever, that we see a defendant’s ability to pay be considered as part of that sentencing process. And so, for example, this this has kind of been done before, even in Minnesota, where the in the early 1990s, the Minnesota state legislature ordered the Minnesota Sentencing Guidelines Commission to design a defined system in which a defendant’s fine would be calibrated to a certain proportion of their earnings, you know, through a like a formula, rather than imposing like a flat fine as we do now, which doesn’t really consider the defendant’s economic situation. So at least in that situation, unfortunately, the next legislature chose not to move forward with the defined system. But there are there are examples like this in other places, and there are various models that that legislators could consider. And so we would urge legislators to think about how they can push forward these guidances to better inform the practices that happen in the courts.

Dave Chancellor [00:33:12] Brieanna, how about you?

Brieanna Watters [00:33:13] Yeah. So I would just add to that in a broader sense. I think that urban normative policies, by which I mean policies that are designed by urban politicians and people concerned with primarily what are urban issues, they are a major part of the issue and monetary sanctions for Native people, and that’s because of the geographically rural nature of native lands. So as we were saying earlier, the previous practice of revoking driver’s licenses for unpaid fines and fees, it can and does have a very different impact on folks who live in rural areas where there’s virtually no public transportation options. So for poor communities and as we show empirically in our paper, especially for native communities, the fines and fees themselves are prohibitive. But the additional sanctions and consequences of not being able to pay those fines and fees, they have major consequences, and those consequences can often be more harmful.

Dave Chancellor [00:34:28] I want to thank you both so much for taking the time to do this. I really enjoyed it. And I just I felt like I learned so much during the time that we had together here.

Brieanna Watters [00:34:36] Yes. Thank you.

Robert Stewart [00:34:37] Thank you for having us. We appreciate the opportunity to talk more about, you know, about this paper and about these issues. And we really appreciate it.

Dave Chancellor [00:34:44] Again, thank you to Brieanna Waters and Robert Stewart for taking the time to talk about this paper with us. This podcast was supported in part by funding from the US Department of Health and Human Services Office of the Assistant Secretary for Planning and Evaluation. But its contents don’t necessarily represent the opinions or policies of that office. Any other agency of the Federal Government or the Institute for Research on Poverty. Music for the episode is by Martin DeBoer. Thanks for listening.