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No Jail Time for Troubled Kids: Radical Fixes for Juvenile Justice

Now, for the first time in nearly 30 years, the federal government is updating its 1988 Model Indian Juvenile Code.

The abysmal state of juvenile justice in much of Indian country took up an entire chapter of the Indian Law and Order Commission’s 2013 report, “A Roadmap For Making Native America Safer.”

Now, for the first time in nearly 30 years, the federal government is updating its 1988 Model Indian Juvenile Code. Department of Interior Assistant Secretary – Indian Affairs Kevin K. Washburn explained, “Tribes know best what will work in their communities but the model will be updated to provide better federal guidance to tribes in an effort to insure proper respect for the rights and responsibilities of Indian juveniles.”

The revision promotes mechanisms that will keep children in their communities through, among other strategies, diversion programs that keep kids out of the courts altogether, and to ensure that children and parents have due process rights, including the right to counsel.

It emphasizes the need to distinguish between children who have committed criminal acts, those who have committed status violations (such as truancy, running away or underage drinking) and those who are simply in need of services. Overall, the new code seeks to decriminalize acts of delinquency and encourage getting services for kids rather than incarcerating them.

The BIA’s Office of Justice Services Tribal Justice Support Directorate and the Justice Department’s Office of Juvenile Justice and Delinquency Prevention are circulating a discussion draft of the proposed revision, developed by Ron Whitener, affiliate professor at the University of Washington School of Law’s Native American Law Center and an associate judge for the Tulalip Tribes, and Matthew T. Ficcaglia, staff attorney at the Native American Law Center.

The TJSD is accepting comments on the draft. Based on those comments, by the end of November, the agency will prepare a draft to use for tribal consultations, which are expected to begin in early 2016. The TJSD has scheduled several opportunities for comments and input from the public at American Indian and tribal justice conferences this summer and early fall.

Troy Eid, a former U.S. attorney who was chairman of the Indian Law and Order Commission when it was active and is now an adjunct professor at the University of Denver Sturm College of Law and a shareholder in the Denver office of Greenberg Traurig LLP, says, “The Code reflects prevailing legal requirements and best practices and can be adopted by tribes, in whole or part, in the internal laws to ensure more effective juvenile justice.”

He adds, “In contrast, the Commission's recommendations [in “A Roadmap For Making Native America Safer”] aren't focused on tribes' internal laws.” Instead, he says, the Commission recommended changing federal law so that tribes would have greater control over juvenile justice, including making tribal notification requirements for kids in state and federal juvenile justice systems mandatory as they are in ICWA, prohibiting juveniles from being charged with federal crimes unless their tribe agrees and guaranteeing tribal youth full federal civil rights protections.

These are among the matters taken up by the Senate Committee on Indian Affairs on July 15 during an oversight hearing on “Juvenile Justice in Indian Country: Challenges and Promising Strategies.”

Robert Lisenbee, administrator of the OJJDP, described several exigencies that contribute to the reprehensible state of juvenile justice in Indian country – a bewildering patchwork of jurisdictions, the absence of tribal juvenile codes to guide justice professionals, the failure of state and federal systems to account for the cultural needs of youth and high rates of trauma, both contemporary and historical, suffered by American Indian/Alaska Native children.

Lisenbee referenced the 2014 report issued by the Attorney General’s Task Force on American Indian and Alaska Native Children Exposed to Violence, which found 73 percent to 95 percent of American Indian/Alaska Native children in the juvenile justice system had symptoms of trauma caused by exposure to violence.

Darren Cruzan, deputy director of the BIA’s Office of Justice Services, picked up that point, noting, “According to the U.S. Department of Justice’s Defending Childhood Initiative, exposure to violence causes major disruptions of basic cognitive, emotional and brain functioning that are essential for optimal development and thus if exposure to violence goes untreated, these children are at a significantly greater risk than their peers for aggressive, disruptive behaviors; school failure; and alcohol and drug abuse.”

Sen. Jon Tester, D-Mont., put the point succinctly when he said that instead of asking Native kids in trouble what is wrong with them, we should be asking, “What happened to you?”

One of the things that happens to those kids is incarceration. They are jailed more often than their non-Indian peers, they are sentenced to longer terms and they can end up in federal facilities for adults. Such facilities, testified Addie C. Rolnick, associate professor at the William S. Boyd School of Law, University of Nevada, Las Vegas, were not designed for Native people or for youth. They further traumatize children who are already among the most vulnerable in the country.

She implied that the overly harsh sentences meted out to Native youth were a contemporary manifestation of the forced removal of children from their families and communities that has been going on for 150 years. “Acknowledging historical trauma and its impact on family and child well being, [the juvenile justice system] should strive to keep youth connected to their families and communities wherever possible, rather than sending youth to faraway states or non-Native systems. It should avoid the military-style discipline that was a hallmark of assimilative boarding schools and is especially damaging to youth who have experienced abuse and trauma. It should employ incarceration as the last possible option and only when it is required for public safety. Given the infrequent occurrence of serious violent crimes among Native youth, some tribal communities may not need to use it at all.”

Witnesses generally agreed that tribes should not only be informed when their kids were involved in state and federal juvenile justice proceedings, but that tribes should be the ones dealing with juvenile justice issues in the first place. Cruzan said that the successful juvenile justice programs are the ones run by the tribes themselves.

The challenges for juvenile justice in Indian country are many; the promising strategies few and far between. Witnesses cited several programs that seem to be having positive impacts, including those run by the Rosebud Sioux Tribe and the Chippewa Cree Tribe, as well as the Boys & Girls Clubs established in Indian country, described by Carla Knapp, Penobscot Indian Nation, national director of Native Services for the Boys & Girls Club of America, and the federal Mentoring Opportunities for Youth Initiative now being piloted by five tribes.

A problem, however, is the lack of research on these and other programs. Anecdotal evidence suggests they are working, but hard data that could help define best practices does not yet exist, according to Rolnick.

Nonetheless, the witnesses agreed that prevention and intervention are the strategies that work best, keeping incarceration and removal of children from their families and communities as a last resort to be used only when the child is thought to be a danger to himself or others.

And that, of course, takes funding. Witnesses also agreed that many more resources are needed to tackle the conditions that land American Indian/Alaska Native kids in trouble and to institute the prevention and intervention programs that will help them heal.