Tribal Legal Code Resource: Juvenile Justice

Guide for Drafting or Revising Tribal Juvenile Delinquency and Status Offense Laws

March 2015

This Guide was pilot tested, revised, and finalized in collaboration between the Tribal Law and Policy Institute with the Tribal Youth Training and Technical Assistance Center at Education Development Center, Inc.

This project is supported in part by Grant No. 2013-TY-FX-K001 awarded by the Office of Juvenile Justice and Delinquency Prevention, Office of Justice Programs, U.S. Department of Justice to the Education Development Center. Points of view or opinions in this document are those of the author and do not necessarily represent the official position of policies of the U.S. Department of Justice.

This project was supported in part by Grant No. 2012-IC-BX-K001 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile and Delinquency Prevention, the Office for Victims of Crime, and the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. Points of view or opinions in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

• Pat Sekaquaptewa (Hopi), Justice, Hopi Appellate Court
• Abby Abananti (Yurok Tribe), Chief Judge Yurok Tribal Court
• Maureen White Eagle (Métis), Tribal Advocacy Legal Specialist, Tribal Law and Policy Institute
• Chia Halpern Beetso (Spirit Lake Tribe), Tribal Court Specialist, Tribal Law and Policy Institute

• Jerry Gardner (Cherokee), Executive Director, Tribal Law and Policy Institute
• Heather Valdez Singleton, Deputy Director, Tribal Law and Policy Institute

• Terrilena Dodson (Navajo), Office Assistant, Tribal Law and Policy Institute

Tribal Legal Code/Policy Development Series

The Tribal Law and Policy Institute (TLPI) has developed many resources to assist tribal governments in creating a comprehensive, community-based, victim-centered response to crime. This series is developed with a philosophy that tribal laws and policy should reflect tribal values. In addition, writing a tribal law usually requires careful consideration of how federal and state laws apply. Each resource is designed to help tribal governments customize laws and policies that fit community values, principles, and capacities. These resources are all freely available for downloading on the Tribal Court Clearinghouse.

Tribal Legal Code Resource: Tribal Laws Implementing TLOA and VAWA 2013 is designed to be a resource for tribes interested in implementing the Tribal Law and Order Act sentencing enhancement provisions or VAWA 2013’s Special Criminal Domestic Violence Jurisdiction. The resource focuses on the tribal code and rule changes that may be needed should a tribe elect to implement the increased tribal authority in either or both statutes. It discusses the concerns and issues that need resolution in implementation and provides examples from tribal codes and tribal court rules. (February 2105)

Tribal Legal Code Resource: Juvenile Justice - Guide for Drafting or Revising Tribal Juvenile Delinquency and Status Offense Laws provides guidance for tribes interested in drafting and/or revising their juvenile laws. It includes both juvenile delinquency laws and status offense laws (that is, laws – such as truancy or runaway - which only apply to juveniles due to their status as juveniles). This resource is designed to assist tribes in ensuring that their juvenile justice system reflects the vision and values of the tribal community to be served. Part I provides guidance concerning how to address juvenile code development, preliminary considerations, and assessing resources. Part II provides extensive examples, critical commentary, discussion questions, and exercises designed to help tribes customize their laws to meet the needs of the individual community This resource covers the full range of juvenile delinquency laws and status offense laws and processes. It also provides guidance for tribes interested in developing specialized court dockets such as juvenile wellness courts, peacemaking courts, and teen courts. (March 2015)

Tribal Legal Code Resource: Domestic Violence Laws was developed by TLPI in cooperation with OVW and BJA. This victim-entered approach to domestic violence against Native women resource guide includes exercises, examples, and discussion questions to help tribes customize their laws to meet the needs of their community. This resource was revised and updated in 2012 and in 2015, to include the Tribal Law and Order Act (TLOA) (2010) and the Violence Against Women Act Reauthorization of 2013 (VAWA 2013). (Revised February 2105)

Sexual Violence and Stalking Laws: Guide for Drafting or Revising Victim-Centered Tribal Laws Against Sexual Assault and Stalking was developed by the TLPI in conjunction with the Southwest Center for Law and Policy and is intended to be a guide for drafting or revising victim-centered tribal criminal laws on sexual assault and stalking. This resource guide includes sample language and discussion questions which are designed to help tribal community members decide on the best laws for their community. This resource was revised and updated July 2012, including changes addressing the 2010 enactment of the Tribal Law and Order Act.

Tribal Legal Code Resource: Crimes Against Children has been developed by the TLPI under a Children’s Justice Act Partnerships for Indian Communities training and technical assistance grant. Specifically, it has been developed to provide assistance to tribes and tribal organizations that have received Children’s Justice Act Partnerships for Indian Communities grants. Tribes frequently request assistance in developing and/or updating their laws to address victimization of tribal children. TLPI developed this resource guide and workbook to meet the identified need. This project was conceived in 2001 under the guidance of an advisory committee of experts in the tribal justice field, those working with Native child abuse and child victimization issues, and those working with tribal child and family services providers. The resource provides illustrative examples, narrative, and discussion questions. The discussion questions direct users through a tailoring process that will assure that the resulting draft statutory provisions reflect the needs and values of the tribal community that the targeted law serves. (August 2008).

Tribal Judge’s Sexual Assault Bench Book and Bench Card was developed by TLPI in cooperation with the Office on Violence Against Women as a resource for tribal judges who hear sexual assault cases in tribal courts. It provides background information on important sexual assault and tribal jurisdictional issues, as well as providing guidance in handling key issues at various stages of a sexual assault criminal trial. (June 2011)

Tribal Domestic Violence Case Law: Annotations for Selected Cases was developed by the TLPI in cooperation with the Office on Violence Against Women as a resource for tribal judicial officers in understanding how some tribal governments have handled certain legal issues within the context of domestic violence cases. While a great deal of research has been done on case law in the state systems, little to no analysis has been done on the tribal judicial approach to domestic violence. This compendium, developed as part of an overall code-writing workshop curriculum for tribal governments, will assist tribal legislators as well. Understanding how laws are interpreted by the court systems may impact the development of laws that provide safety to tribal citizens. (June 2011)

Law Enforcement Protocol Guide: Sexual Assault was developed by the TLPI in conjunction with Southwest Center for Law and Policy as a tool for improving the investigation of sexual assault crimes. Effective investigations increase the likelihood of victim participation and increase the probability of convictions in tribal, state, and/or federal courts. This guide focuses on the development of an internal protocol for law enforcement. A law enforcement protocol can enhance the efforts of all community agencies in addressing sexual violence. Once a tribal government has strong laws in place, this publication will help create policies and protocols for a law enforcement agency to enforce laws. (July 2008)

Prosecutor Protocol Guide: Sexual Assault was developed by the TLPI in conjunction with Southwest Center for Law and Policy as a tool for improving the prosecution of sexual assault crimes. Holding offenders accountable for their actions is a key part of making a community safe. This publication is designed to help a prosecutor’s office ensure consistency and compassion for all survivors. This guide focuses on the development of an internal protocol for tribal prosecution. A prosecutor protocol can enhance the efforts of all community agencies in addressing sexual violence. (July 2008)

Sexual Assault Response Team (SART) Resource was developed by the TLPI in conjunction with Southwest Center for Law and Policy as a guide to creating cohesive policies between tribal agencies. Victims of sexual assault deserve a coordinated, comprehensive response from a variety of community agencies. This SART resource provides a starting point for developing victim-centered SART teams in your community. (September 2008)

Listen to the Grandmothers Video Discussion Guidebook is designed to assist tribal programs with incorporating cultural traditions into contemporary responses to violence against Native women. The Listen to the Grandmothers video features Native elders speaking to the problem of violence against Native women. The video provides a historical overview of violence against Native women, traditional responses, and an analysis concerning the incorporation of cultural traditions into contemporary responses to violence against women. (2008)

Sharing Our Stories of Survival: Native Women Surviving Violence is a general introduction to the social and legal issues involved in acts of violence against Native women; this book’s contributors are lawyers, advocates, social workers, social scientists, writers, poets, and victims. In the United States, Native women are more likely than women from any other group to suffer violence, from rape and battery to more subtle forms of abuse, and Sharing Our Stories of Survival explores the causes and consequences of such behavior. The stories and case studies presented here are often painful and raw, and the statistics are overwhelmingly grim. But a countervailing theme also runs through this extremely informative volume: many of the women who appear in these pages are survivors, often strengthened by their travails, and the violence examined here is human violence, meaning that it can be changed, if only with much effort and education. The first step is to lay out the truth for all to see, and that is the purpose accomplished by this textbook. (2008)

Sharing our Stories of Survival Trainer’s Manual for Training on Sexual Assault and Domestic Violence Involving Native Women is specifically designed to give guidance to advocates in presenting workshops, conference plenary sessions, and staff and community training. It provides the directions and materials for eight interactive workshops/training sessions based on chapters of the text book, Sharing Our Stories of Survival. (June 2013)

Tribal Protection Order Resources is a website designed to provide tribal and nontribal entities with a clearinghouse of information and resources pertaining to the issuance and enforcement of tribal protection orders.

Preface

The purpose of the Tribal Legal Code Resource: Tribal Juvenile Laws is to assist tribal nations in drafting and/or revising their juvenile statutes (a.k.a. "ordinances," "codes," or "code provisions") as part of the development and/or reform of their juvenile justice systems. Such system and law design should reflect the vision and values of the tribal community to be served. This resource is intended to be used as a part of policy and planning discussions and includes sample statutory language with critical commentary. This resource is also intended to assist with the blending of the vision and values of the Native community and to reinforce the tribal community’s commitment to, and protection of, their youth.

In revising or developing a juvenile code or system, the grown-ups must acknowledge that they have not given their children a world consistent with Native traditional values. Much has gone into that "failure," but in our Native hearts we know it is our failure and not theirs. The effort made in working on the juvenile code and system must be dedicated to righting that failure; to restoring to Native children the benefit of dedicated adults in our nations, who take responsibility for the world they have entered and lead.

The children of our Tribal Nations must be given the opportunity to assume their rightful places. We will not shield them from responsibility or from the consequences of their actions, nor will we excuse bad behavior, theirs or ours. This code, this juvenile system, should help us, adults and children, to remember our respective places in the world, and remind us that we have a personal responsibility to ourselves, our families, our clans, our communities, and our world and all that share that world. We are Native people with shared beliefs and responsibilities; they are not now nor were they ever optional.—Chief Judge Abby Abinanti (Yurok)

The Tribal Law and Policy Institute would like to thank the Traditional Village of Togiak for allowing us to pilot test this resource with their community. Their feedback and suggestions have assisted us in refining this resource.

Table of Contents

Part I: Overview

Chapter 1: How to Start a Juvenile Code Development Project

[1.1] Introduction

Tribal nations are increasingly reassuming responsibility for their children after an era in which their nations’ powers and resources were limited for a variety of reasons, many of which were not within their control. Never have Tribal Nations denied their responsibility to their children, but now they are determined to assume and/or take back control of guiding them into adulthood. It is also increasingly evident that Native youth benefit from responsible Native adult guidance, as opposed to the guidance of those who are not familiar with the strengths of Native people or with a Native vision for the future of Tribal Nations.

Tribal Nations are sovereign governments. Many tribes have asserted exclusive or concurrent criminal jurisdiction and/or civil jurisdiction over "crimes" committed by Native youth enrolled in a tribe, or living on or near tribal lands. Tribal leaders and parents are painfully aware that Native youth have embraced or have been caught up in negative activities and behaviors—many that would not have occurred in a prior era. Today, responding appropriately to the unacceptable behavior of Native youth requires that Tribal Nations accept responsibility by drafting or revising juvenile justice codes.

This resource was developed to provide a starting point for drafting or revising tribal juvenile justice laws and to acquaint the drafters with the basic elements of many juvenile justice systems. The drafters may want to form a code revision working group to draft or revise their code. In the course of drafting such a code the drafters will need to make decisions about the values that will guide their work with their youth.

This resource highlights federal and state law considerations and includes sample provisions from model tribal and state juvenile codes[1] and existing tribal juvenile codes.[2] Critical commentary on sample statutory provisions and exercises are provided to assist drafters in refining their thinking as they design the juvenile justice system best suited to their individual communities.

[1.2] What This Resource Guide Can Do

This resource is designed to assist tribal communities in drafting laws to address youth misconduct and to assist youths and their families.

This resource is also designed to encourage the participation and commitment of the immediate family, extended family, and entities within the wider tribal community with an interest in the welfare of youth. Juvenile justice system and law reform may be accomplished with or without attorney input. Attorneys often have, unless they are well grounded in the values of the drafting community, a built-in bias for the justice system that they have studied and worked in. In many instances, this bias has been debilitating to drafters who seek a model that is not a mirror of the state or federal system. The best results come from a full community discussion of competing values, so that approaches or options are designed to meet as many needs as possible consistent with community values. Attorneys may be of assistance in the final drafting of the law, after important decisions are made by the community.

This resource is designed to guide tribal communities through the discussions necessary to create a juvenile justice code for their communities.

If you are a member of a tribal council, or if you are a tribal community member who has started thinking about creating or revising a juvenile justice code, then you are ready to begin. The first decision is "Shall we do this? Shall we create a code or revise our existing code?" If the answer is yes, then using this resource as a road map for discussions will get you where you want to go.

[1.3] What This Resource Guide Cannot Do

This resource cannot make anyone into an expert in juvenile justice, nor does it focus in depth on the substantive issues, for example, what causes delinquent conduct. It cannot "fix" your children, your families, or your community. Many questions and concerns in these areas will not be addressed in this resource.

This resource is NOT intended to be used as a template or a model code, but rather to be used as a guide by tribal communities to create a unique code tailored to each individual tribal community.

The more your tribe, its members, and the communities of interest involve themselves in these discussions, the greater the chances of having this code become a springboard to wider solutions. The work of establishing a code is limited in scope, but essential to the creation of a responsive juvenile justice system.

[1.4] A Note on Terminology

Tribal governments use a variety of terms to describe their laws, including statutes, ordinances, and codes. Generally, the term code refers to an organized listing of all laws for a given subject matter, while a specific subsection may be entitled a statute or ordinance. In this resource guide, the terms will be used interchangeably in order to be relevant to a wide variety of audiences.

When using this guide, and throughout the drafting process, it is a good idea to keep at least one dictionary by your side. We recommend using one or more of the following:

• A general dictionary, such as Merriam-Webster’s Collegiate Dictionary
• A law dictionary, such as Black’s Law Dictionary
• A law dictionary for nonlawyers, such as Law Dictionary for Non-Lawyers by Daniel Oran

A glossary is provided in the appendix of this document to define legal terms, as those terms are used in this resource.

[1.5] How to Use this Resource Guide

There are two principle parts in this guide:

• Part I: Overview
• Part II: Workbook

The overview portion of the resource guide provides a wealth of information on tribal juvenile justice systems, trends, and cultural awareness. It is recommended that all members of the code revision working group read the overview section or participate in a presentation that includes the information contained in the overview, so that the working group can start with some common understandings.

The workbook portion of the resource guide is designed to be used as a tool for a facilitator of the code revision working group. Each of the workbook sections is divided into five main parts:

1. Overview
2. Model Code Examples
3. Tribal Code Examples
4. Tribal Code Commentary
5. Exercises

Each section of the workbook relates to key sections of a juvenile code. The Overview briefly discusses the code sections, often referring back to a section in the Overview for additional information. The Model Code and Tribal Code Examples sections provide a review of how the model codes and other tribes have dealt with the topic in their provisions. The code examples are followed by a section called Tribal Code Commentary that discusses the Tribal Code Examples and explains key provisions or differences between examples given. The fifth section, Exercises, is designed to help your community find the provisions that meet your needs. It will:

• Guide your look at the current code, justice systems, and situations that relate to the particular code section covered in the chapter.
• Provide questions and sometimes additional material for consideration and discussion by your working group.

The workbook section is meant to ensure that your tribe will have a juvenile code that truly fits the needs, resources, and values of your unique community.

[1.6] Team Selection and Guidelines

Much thought should go into selecting your code drafting team, for they will be the first line of drafters and must be willing to commit the time and energy needed for this very demanding project. The following is a list of people/agencies that may be useful in drafting this code.

• Survivors of the juvenile system, including family members
• Tribal prosecutor or one who serves in the role of juvenile prosecutor
• Tribal law enforcement
• Tribal juvenile probation officer
• Social Services, including Child Protection or Indian Child Welfare workers
• Substance abuse treatment provider
• Mental health treatment provider
• Medical care personnel
• Domestic violence advocates and batterer treatment provider
• School personnel
• Tribal education department
• Corrections personnel
• Youth council representative
• Defense advocates or attorneys
• Elders
• Cultural mentor/leader
• Tribal court judges including personnel in alternative judicial systems
• Any services used for transition, job training, and so forth
• Tribal council members
• Any state or federal agency interacting with Native youth relative to offenses

Indian country has been besieged with the need for code development and/or revisions in recent years. Historically, as tribal nations developed codes and courts to dispense justice, a very common practice was to simply adopt state code and change the name to a tribal name, often times not even making the name switches throughout the document. As time has gone by many of those "change the name codes" have proven to be inadequate to address the needs of tribal people and current code drafters are increasingly seeking to draft documents that reflect their tribal needs and values.

This history has created a knowledge base that allows us, the drafters of this resource, to make some suggestions for you to consider as you begin the process. The tips set out in the following text come from the successful efforts of other tribal nations.

This work will not successfully reach the goal of producing a juvenile justice code if it becomes a process of finger pointing and blaming others for weakness in the current law or approach. The best laws are developed one step at a time by a group that is committed to brainstorming and reviewing possible solutions, both long term and short term, to problems.

Equal representation is important. The code development process should not be the "property" of any one agency or group.

The setting should be a safe environment in which the group can share, learn, and explore. It is okay to acknowledge differences of opinion, but not in a stereotypical or judgmental manner.

Try to focus on areas of common interest instead of differences. A shared vision such as meaningful consequences designed to address the needs of the offender, the victim, and the community to ensure a healthy community can create confidence and trust.

All participants must be willing to talk about and explore new ways to address the needs of youth in their community. This is a process where different people will have differing views and it is a time when it is possible to listen and learn from each other.

To be successful, each person involved must be willing to be creative and persistent. The process will undoubtedly have frustrations and difficult times. Think outside the box.

This means sharing resources, training, technical assistance, and limited available funding. Alternate the locations of meetings so that the burden of hosting and/or travel does not fall on the same people.

All tribal agencies involved should have a chance to review the draft code before it is considered completed. Allowing for this input will help to ensure each agency remains committed to the process and eventual implementation.

We are all aware that times have changed. That does not necessarily mean that values have or should change. What it does mean is that we need to do the work of updating the application of those values to today’s problems.

Try to be aware of applicable cultural practices, including making sure that meals are provided for lengthy meetings. Make sure that everyone is as comfortable as possible. Note that there are now substantial restrictions on the use of federal funds for food. The safest practice is to use nongrant funds for food. If you are considering using federal grant funds, be sure to check with your grant manager.

[1.7] How to Organize to Create a Juvenile Code

There are several approaches to organize to start work on a juvenile code. The key is to pick one that your initial team or council thinks will be successful. Some groups have decided to do the drafting in a "retreat" format, where the "team" spends several days in a row working through the process to create a working draft. Others have established representative working groups focusing on different areas with a timeline and regular meetings scheduled to develop a draft. Another approach is to have a core group create a draft for wider circulation to representative groups and individuals, including a process for community input. Any of these approaches can use a facilitator and all should include a recorder to keep track of the work.

There is no right way or better way. The best way is the one that reflects the preference of your community. Remember, this is a very difficult and important process and taking the time to do the job right is essential. Do not rush the process. Do not cut short the input process. The code should be a document that reflects the needs and vision of the community it serves. It is not a standalone product and should not be developed as such.

It is important to ascertain if there are any funds available to assist in the development of the code. In-kind contributions can be important and significant: for instance, a meeting place; supply support (copying, mailing, paper, pens); any part-time staff assignment for research, note keeping, and creating drafts; covering mileage costs or providing transportation; and/or providing a meal.

It is important that all members of the team or working group be provided with a binder of existing documents that they agree to review and study before beginning their work together, including but not necessarily limited to:

• Tribal constitution and/or bylaws.
• Any existing controlling or impacting tribal/federal/state juvenile justice codes.
• All related tribal codes (family/dependency/placement/probate).
• Lay-friendly summary of Western scientific research on the human brain and adolescent development.
• Any written stories from the community concerning corrective actions involving youth in a cultural context.
• Any oral stories concerning traditional corrective actions involving youth.
• Any anthropological documentation or historical records, regarding rearing/disciplining youth, about your tribe or other tribes with whom you share cultural or linguistic ties.
• Copies of any tribal court opinions related or relevant to youths in the community.
• Any existing tribal juvenile code.

It is also important that all members of the team or working group be exposed to the latest information on adolescent brain development and its implications for juvenile justice system reform. See, for example:

• The Teen Brain: It’s Just Not Grown Up Yet, National Public Radio.
• The Teen Brain, Harvard Magazine.
• Teenage Brains, National Geographic.

Currently, even state juvenile justice systems are being reformed to take into account new scientific research with respect to the development of the human brain. The human brain is now understood to have different capacities and abilities depending upon whether it belongs to a child, an adolescent, or a young adult. Juvenile justice system reformers recommend an approximation with age as follows: that a "child" includes individuals up to age ten; that an "adolescent" includes individuals from ten to seventeen; and that a "young adult" includes individuals from eighteen to twenty-five. This brain development research has implications for tribal statutory drafting where the implication is that children ten and younger should be presumed to fall within the tribe’s dependency law (e.g., with respect to child maltreatment); adolescents should be presumed to fall within the tribe’s juvenile law (e.g., with respect to status offenses, delinquent acts, and related families-in-need-of-services [FINS] matters); and tribes should consider extending the tribal court’s juvenile jurisdiction, to be exercised at the discretion of the judge, up to age twenty-five.

Here are a few "Dos" and "Don’ts" to consider as you plan this process for developing a juvenile justice code.

When developing your code development team, DO . . .

• Select code development team members with various viewpoints who have demonstrated interest, expertise, or experience with the juvenile justice system or issues related to youth.
• Select, if possible, members of all the disciplines who are involved in the juvenile justice system.
• Select team members who are "survivors" of the current juvenile justice system, including their family members.
• Make sure the selection process includes elders and cultural leaders.
• Select, if possible, a team member(s) who is currently in the juvenile justice system, including family members.
• Design a process that invites broad-based participation in identifying issues and making recommendations. If possible, the process should be one of consensus, as that is more likely to ensure widespread acceptance and is more in keeping with many traditional resolution practices.
• Proceed in phases with set time frames/meeting times, including a study phase in which juvenile code issues that are important to the community are identified before drafting provisions.
• Assign manageable tasks to team members or subcommittees, to be accomplished within clear time frames.
• Emphasize person-to-person communication. Develop a communication plan that ensures everyone in the work group is kept informed of the process and project status.
• If experiencing an impasse or disagreement in the work group, consider having an expert[3] address the issues, presenting a pro and con discussion for consideration.

When developing your code development team, DON’T . . .

• Select code development members based only on their positions within the tribal judicial system.
• Overlook the current science on adolescent brain development.
• Disregard the importance of traditional beliefs, values, approaches, and/or customary law.
• Devote resources to drafting before consensus is reached concerning priority issues and recommendations.
• Be discouraged by lack of participation or lack of progress.
• Delay too long before dividing the work of the team into tasks that can be accomplished within the time frames established.
• Get bogged down in what you cannot accomplish, or resources you do not currently have but need or want.
• Let difficult or divisive issues be resolved by forcing a change in the law or maneuvering to avoid public meeting and discussion that would provide a wider range of opinions.

[1.8] Problem Evaluation/Needs Assessment

Fact gathering is necessary before starting the actual work of drafting a new code. The need for legal, historical, cultural, and scientific research is described in the previous section. However, it is also necessary to do some basic fact gathering. The following information will be helpful:

• How many children up to age ten are enrolled members, or may be eligible for enrollment (some tribes have set ages for becoming enrolled)?
• How many adolescents ages ten to seventeen are enrolled members or may be eligible for enrollment?
• How many young adults ages eighteen to twenty-five are enrolled members or may be eligible for enrollment?
• How many of the children, adolescents, and young adults in the preceding age ranges are members of other tribes residing on reservation?
• How many of the children, adolescents, and young adults in the preceding age ranges, are children of members, but not eligible for membership?
• How many enrolled children, adolescents, and young adults (of any Indian nation) living in your Nation are currently involved with the delinquency system either on or off the reservation? Keep separate statistics for your nation and other tribal nations and on- and off-reservation actions.
• Provide an estimate of the number of all children, adolescents, and young adults who are enrolled (age break down) and who are involved in the dependency system (include adolescent and young adult parents).
• List the location and type of every placement option used for tribal and/or Indian children, adolescents, and young adults including nontribal reservation residents.
• Identify schools on reservation or off reservation used for children, adolescents, and young adults. (If possible school-based services should be identified for each school.)
• Identify all mental health assessment options (consider those that focus on trauma symptoms, dual diagnosis, and ongoing treatment options).
• Identify all health facilities that can do assessments regarding sexual abuse and can assess whether the individual is of danger to his- or herself and/or others. (A full assessment would include a suicide assessment and immediate acting out potential.)
• Identify any and all hotlines that are applicable or could be applicable.
• Identify all inpatient/outpatient options (on and off reservation) for treatment of substance abuse for children, adolescents, and young adults.
• Make note of distance to all inpatient/outpatient options off reservation.
• Identify any case managers in any system currently with tribal children, adolescents, and/or young adults in their caseload: domestic violence, substance abuse, and social services, including those with transitional caseloads.
• The team should visit the nearest commonly accessed juvenile and dependency courts to view hearings, that include, where relevant, tribal, state and federal courts. The team when observing should pay particular attention to what "parts" are necessary and what parts could change, for example, must a judge sit on a bench with a robe or can she sit at a table.
• The team should tour commonly used treatment and detention facilities and group homes. The team needs to decide whether these facilities and approaches are the ones it is comfortable with for tribal children, adolescents, young adults, and their families.
• Probation officers and police officers, who are assigned to these individuals, should be contacted to determine what resources they can bring to the table.
• All available programming for children, adolescents, and young adults should be listed, either tribal or community based.

As a starting point, it is important to know what options are available. At this juncture you may need to remind the team not to get bogged down in feeling bad about any perceived lack of resources. Every community has to start somewhere. Part of the process of developing a juvenile code will be to raise community awareness of the issues affecting tribal youth. The team can continue to work on other system improvements after developing the code.

It will become clear early on that the issues of juvenile justice are impacted not just by the law, but also by systems, including the tribal and local community system available to guide children to adulthood. Tribal people once had intact systems and community supports for successfully raising and mentoring youth, and we can again if we have the will, or develop the will, to recreate these systems and supports.

Chapter 2: Preliminary Choices to Guide Code Development

[2.1] Introduction

It is important, once your team is selected and a development process adopted, that several questions be discussed thoroughly. Resolution of these questions will shape the development of the code provisions. Your team must feel comfortable with the foundation of the code before drafting the laws that will focus the tribe’s response to problems and concerns with their youth, families, and community.

The team may choose to hold community meetings to determine philosophical approaches if they are not clear as to community preferences or if they believe that the community has not fully considered the various options. For example, what should be the guiding philosophy and values of your juvenile justice system? Is the primary goal to help youth grow and heal (a.k.a. habilitation and rehabilitation)? Is the primary goal to require youth to repair harm done to others (a.k.a. restorative justice)? Should you also hold youth accountable (a.k.a. accountability)? Is it important to punish youth (a.k.a. punishment and retribution)? When should promoting public safety be a higher priority? Will the new law be informed by the science on adolescent brain development? What cultural principles and values are to be promoted? See Chapter 30: Integrating Culture, Customs, Traditions, and Generally Accepted Practices.

The team may also choose to hold community meetings to educate the community and to get feedback on some critical organizational issues. For example, do we wish to reform our laws for children and adolescents/young adults (including child maltreatment, status offenses, truancy, and delinquent acts)? Do we want to focus primarily on status offenders or youth who commit what would be crimes if they were adults? Do we want to use a status offense model or a FINS model? Which population is best served with the out-of-court resources available?

Other issues that need to be resolved include issues that impact all community members, such as:

• Should these courtroom actions be open or closed to the public?
• Should certain youth, by virtue of age or the act, be deemed not suited for the juvenile process?
• At what age, if any, should violent offending youth be transferred to adult criminal court (or should such provisions be removed from existing law)?
• What precourt or diversion programs or activities exist for youth?
• What mechanisms are available to presenting officers and prosecutors to reach agreements with youth and their families to obtain remedial/rehabilitative services and/or to participate in precourt or diversion programs or activities?
• Should some youth be emancipated before the age of majority (identify the age of majority)?
• Should the juvenile court retain jurisdiction over some young adults until age twenty-five?
• When should notice of court proceedings and mandates to participate be required for family, extended family, and/or ceremonial relatives?
• When should traditional authorities be recognized to weigh in on or decide matters?
• When should traditional healers or ceremonies be used?
• Should identified traditional dispositions be mandated in the law or left up to the judge to be decided case by case?
• Should identified traditional or more Western reparations be mandated in the law or left up to the judge to be decided case by case?
• What process has been established to authorize and assist a judge in learning about the applicable custom or tradition where he or she does not know it?
• Should there be a youth’s bill of rights?
• Should there be a bill of duties and obligations[4] owed to youth by the tribe and the family/extended family, and so forth?
• Should all juvenile records be destroyed at a certain point or just certain juvenile records?

[2.2] Philosophical Choices

A. Habilitation and Rehabilitation—Identifying and Meeting the Needs of Today’s Native Youth and Their Families

A philosophical choice is defined as a reasoned or sensible choice. Many tribes today are seeking to promote the welfare of their youth by committing to a "habilitative"[5] and "rehabilitative" juvenile justice system—where the goal is to help youth become capable and/or to bring youth back to a healthy condition. In designing juvenile justice laws, it is critical to learn about what is happening to youth, particularly within the given tribal community. This includes learning about current crises; listening to youth and their families; learning about existing youth services, programs, and activities; recognizing deficits; and seeking to reform relevant portions of the justice, case management, treatment, educational systems, and so forth. This process should include an exploration of various therapeutic justice models that are often incorporated in precourt, postcourt, or court diversion processes. We know that nationally, Native youth are experiencing high rates of substance use/abuse, mental health problems, and suicide. By prioritizing an effort to study the local welfare and justice statistics of our youth, and by committing to design, fund, and implement habilitation and rehabilitation services, programs, and activities for tribal youth and their families, tribes seek to meet cultural and traditional duties and obligations to youth.

B. Tribal Cultural Values

Many people—tribal and nontribal—discuss the desire to have a culturally responsive juvenile system. Several factors have to be considered. First, people are often referring to values that shaped practices in the past. It is important to note that there is a significant difference between practices (a.k.a. "traditions") and values (a.k.a "legal norms"). While older practices may not be workable or relevant in today’s world, the values may be very relevant. For instance, a tribe may have as a value a certain behavior standard; for instance, a value of not stealing/borrowing another’s horse. That value would require the redressing practice of including extended family involvement in discipline for a boy who stole/borrowed a horse without permission. The remedy could require that the boy and his family (uncles) care for the horses of the wronged party for a period of time and/or that the boy and his family replace the horse of the other family, if the horse died as a result of the boy’s misbehavior.

The value placed on the support and involvement of the boy’s family, could be incorporated into the tribal juvenile system so that the boy learns that his behavior reflects not just on him but also on his family. A tribe could determine that the family unit is responsible for redressing a wrong committed by a youth. If they did, that particular code would set out the redressing practice of dispositional conditions that required involvement of a defined family, including extended family. In a situation in which the youth’s extended family is not willing or unable to participate, and in which the behavior is not with a horse but, for example, a car, then the issue becomes how can or should that value be adapted when he does not have extended family participation and/or how can it be adapted when the theft involved or the wrong behavior involved is not as parallel. (Parallel meaning: where everyone in the last century was sure to have both extended family and a horse, the same cannot be said today for extended families or cars.)

If there is a desire to have a culturally relevant code then the working group must determine:

• What the values (legal norms) of the community were at a time that the group wishes to model (no stealing);
• Whether there was family involvement in redress;
• What corrective practice(s) (traditions) existed; and
• How can those values (legal norms) be adapted to the circumstances of today?

It is important to realize that certain behaviors did not historically exist in tribal communities, for example, methamphetamine abuse. With new behaviors and problems the culture must adapt. For instance, all horse-involved tribes at one point were prehorse; they adapted once the horse was incorporated into their daily life. The adaptation is possible if the discussion focuses on the value (and sometimes the practice is also relevant).

Some tribes have found it useful to hold community meetings and/or to establish a culture-bearer/elders committee to work simultaneously with their law drafting committee. This group or committee could be tasked with "finding" and discussing the nuances of the cultural values relevant to current problems, for example, methamphetamine abuse. This discussion could focus on the following initial questions that would be relevant to the rehabilitation and accountability of substance users:

• What are the values with respect to youth (how do we value them)?
• What are the values with respect to physical and spiritual renewal leading to healing and recovery?
• What duties and obligations are owed to youth and by whom?
• What values should be taught to youth regarding self-respect, honoring self, positive beliefs, and so forth?
• What are the values regarding how youth should manage their thoughts, emotions, and physical reactions?
• Who are the traditional healers and mentors?
• What are the traditional healing practices, activities, and ceremonies regarding healthy relationships, parenting, rites of passage for youth, and so forth?
• What are the traditions and values surrounding restitution to and reconciliation with persons harmed by the youth’s conduct?

The law drafting committee would then identify the relevant value and the framework they believe best represents the cultural foundation they wish to adapt to the present circumstances. Once the value and cultural foundation are identified, the "modernization" work can be done. Be aware that adaptation may be needed, for instance, if the traditional institution is weakened or nonexistent (e.g., a functional extended family does not exist). A model could be created that reflects the institution—mentors, counselors, probation officers, caseworkers, or other volunteers or personnel might be given roles similar to those of extended family members (e.g., mentors, sponsors, cultural educators, and/or to work with professionals to culturally modify evidence-based treatment methods, particularly in the areas of substance abuse and trauma counseling). Additionally, or alternatively, better efforts to identify and involve actual extended family members could be required under the tribal code.

C. Restorative Justice

Practices and programs from peacemaking courts to family conferencing have been called restorative justice. Strictly speaking, these programs are encompassed in restorative justice, though they do not represent the whole restorative justice approach. Restorative justice involves certain principles and practices as set forth in the following text. Not all alternatives to "standard" practices are necessarily restorative, and it is essential that practitioners not contribute to the confusion in this area. It is also important to understand that certain practices and programs can embrace principles of restorative justice without adopting the entire approach.

Please see Chapter 32: Peacemaking Court for further information.

Restorative justice very specifically requires that the harms and needs of the victim be addressed, and that the offender is held accountable for their act and for righting the harms. The victims, offenders, and community must be involved in this process.

The process recognizes that some offenses are simply not repairable, in that there is no way of repairing the harm or of going back. In those cases, the healing is the effort to put right acts, as in aiding the victim’s journey toward their life after the event. The offenders must realize and acknowledge the effect of their actions on others, and they must take responsibility for those actions. Likewise the community must address any contributions to harms that are attributable, even in part, to the community as a whole; for example, failure to intervene when children are raised in homes by parents or parental figures that are rendered harmful by virtue of untreated substance abuse. Traumatized children will often emerge as victimizers, not realizing the link between harmed and becoming the harmer.

Restorative justice, unlike nonrestorative justice systems, often includes a direct meeting between the victim and the offender, when they negotiate with each other on how to make things right. However, the inability to have a direct meeting does NOT invalidate the ability to adhere to restorative justice principles. Encounters, direct or indirect, may not be possible, or in certain circumstances may not be appropriate or desired. For example, cases in which the perpetrator has a high potential for violence against others (including the intake officer, mediator, or peacemaker, etc.), cases in which there is a likelihood of traumatizing, victimizing, or retraumatizing/victimizing the victim (in child abuse or domestic violence situations), and/or cases in which the victim does not consent (however the choice should always remain with the victim as to whether to participate in restorative justice process). There are degrees of encounter, for example, a letter, a video, a video exchange, or a person may stand in for the victim at the victim’s request. Restorative justice is not necessarily an alternative to prison; rather it may be used in conjunction with incarceration to more fully address the issues of the community and the victim.

Another significant difference between restorative and a retributive system is the use of fines. The state or tribe is often seen as the victim and a fine imposed for a violation in a punitive system of the law. Restorative justice first seeks restitution to the victim, not imposition of fines. In some cases the restitution may be to the tribe but only where the tribe is the "victim" and the money then goes to redress the wrong done.

A final word on restorative justice: it is not an all or nothing choice. Each tribe can decide how and if these principles should apply to their community. They may also try out approaches to determine if they wish to choose an alternative to the now accepted concept that crime is a violation of the law and the tribe. One such alternative is that crime is a violation of people and relationships. If the second approach is chosen then the redress must heal the harm done to the community as a whole. Those different approaches will guide the development of the law. For further information on restorative justice, please see Restorative Justice Online, Edutopia, and Fact Sheet on Evidence Based Prevention and Intervention Programs.

D. Federal/State Approach

Most tribes are acutely aware of the retributive (sanctioning/punishing) quality of federal and state systems. Actually, most tribes have modeled their criminal justice systems, including juvenile justice systems after federal and state systems. Now that tribes have the ability to more directly control their justice systems, tribal people are examining the effectiveness and desirability of the retributive approach. These discussions are often contextualized by tribes seeking to examine historical values and practices that were previously effective in moderating unacceptable behaviors. In part because of Natives’ disproportionate representation in federal and state facilities, the tribes have vast experiential knowledge in the workings of a retributive system. Fifty percent of the youth incarcerated in the federal juvenile system are tribal.[6]

There are significant overlaps between the approaches (restorative and retributive), particularly in the definition of "wrongs." The systems agree that community precepts must be maintained. It is in the responses that they differ. In one system violations create guilt and punishment; in the traditional tribal system or restorative system, violations create obligations and require an effort to put things as right as possible.

E. Combinations

Many tribes have operational juvenile justice systems. Some may be seeking to create a juvenile justice system. In either instance, it is possible for a tribe to design a system that takes the strengths of each philosophy and creates a new system. Strengths in this instance are defined as practices a tribal community agrees are capable of creating the outcomes envisioned. In the first analysis, the tribe in all likelihood is not happy with its current approach or they would not be considering this resource.

Many tribes are not happy with current outcomes, including continued law breaking, alienation of young tribal members, and the warehousing of young tribal adults. The tribes fear the loss of a generation(s) to the various justice/corrective systems, which are infrequently returning Native youth as productive tribal citizens. It is the tribal communities who are invested in these youths, and it is these communities that must develop particular and unique tribal strategies.

The tribes have the advantage of a "manageable" system, one that by size can be responsive to the unique needs of each community. Imposed systems, particularly ones with bad performance records for all youth and specifically for tribal youth, should not be continued. However, it is equally important to note the strengths of each and every alternative before a community chooses a juvenile system for its youth. Knowing that outcome is the most important factor (outcome for the victim, the community, and the youth), each community must be flexible in approach and implementation.

[2.3] Separate or Combined Codes

Reference to "juveniles" is found in several areas of the law. The initial question for each tribe is whether they want to combine all references to youth in one code with various chapters (areas of concern) or separate the areas into separate codes. Remember that the new science of brain development argues for a distinction between a child (0–10 years), an adolescent (11–17 years), and a young adult (18–25 years). The primary areas are discussed in the following text.

A. Dependency Codes

Dependency codes are also referred to as child welfare codes and address the issues of parental/guardian/caretaker abuse and/or neglect. Although they are seen as children’s codes, they most often address the deficiencies of adults in caring and providing for children. Keep in mind, however, that these codes also apply to youth who are parents. Offenders either admit to allegations or the court determines that a child in their care has been mistreated. The mistreatment is abuse that the parent or caretaker should have and/or could have avoided if they had been parenting "properly." In recent years there has been increasing emphasis on the needs of children who are "placed" in a system because of the "fault" of others, but then are seriously impacted and in fact abused and/or neglected by the system designed to protect them from parental/caretaker abuse. Graduates of the various dependency systems have been found to have tremendous hurdles to surmount if they are to catch up with their nondependent peers.

Native children are overrepresented in state dependency systems. That overrepresentation was instrumental in the passage of the 1978 Indian Child Welfare Act (ICWA), which created federal standards for the states that seek to make Native children dependents. Many tribes include a chapter or section in their tribal codes addressing how the tribe will interact with the state court system using ICWA on behalf of their tribal members who find themselves involved in state court proceedings. ICWA creates party status for tribes in state court actions regarding Native children, and creates unique rights for tribes and tribal citizens. ICWA also creates a status termed Indian custodianship, which has all the attributes of a voluntary guardianship, featuring a simplified creation and dissolution process.

About the Indian Child Welfare Act

The Indian Child Welfare Act (ICWA) was passed by Congress to address the problem of Native children being removed from Native homes (off and on reservations). Often states did not adequately involve tribes in cases regarding Native children. Tribes were concerned about the high number of Native children being raised outside of their tribal communities by non-Natives. Not only were these children away from their family, but they often lost their tribal culture. In response to these problems, ICWA sought (1) to affirm existing tribal authority to handle child protection cases (including child abuse, child neglect, and adoption) involving Indian children and to establish a preference for exclusive tribal jurisdiction over these cases; and (2) to regulate and set minimum standards for the handling of those cases remaining in state court and in state child social service agencies.[7]

For further information on ICWA, please see:

• Tribal Law & Policy Institute, Indian Child Welfare Act
• Native American Rights Fund, Online edition of "A Practical Guide to the Indian Child Welfare Act"
• National Indian Child Welfare Association, Indian Child Welfare Act of 1978

The dependency system, whether tribal or nontribal, at its very best offers help and support to struggling families. Tribal communities have, along with Congress and several state courts, seen the system at its worst when dealing with Native families. That, unfortunately, does not mean the system isn’t needed; rather, it places a very high burden on states and tribes to craft approaches and ensure resources that, at the very least do no further harm, and hopefully do not punish struggling parents/caretakers and innocent children.

Tribal dependency codes establish a community minimum standard of care for tribal children. They need to be closely evaluated in terms of community values and resources. Particular attention needs to be paid to why decisions are made, who is offering what type of help, and how help is given and offered. Tribes need to be aware of the impact of decisions and the pros and cons of approaches.

B. Delinquency Codes

This resource specifically addresses the "delinquency" code. However the term delinquency is often a misnomer, in that tribes tend to lump a number of distinctive types of statutes together and call them a "delinquency code." These include provisions governing "status offenses" (e.g., behavior that is prohibited only by virtue of the age of the person alleged to be a wrongdoer, including but not limited to underage driving of vehicles, purchasing and/or consuming alcohol, purchasing and/or smoking cigarettes/cigars, incorrigibility, curfew violations, running away, and truancy); "delinquent acts" (conduct that would be a crime if committed by an adult); "crimes" (treating the youth as an adult and effectively putting him or her in the adult criminal process); and FINS (identifying youth misconduct and assessing family needs and ordering remedial services) or some variant. All of these types of statutes address the behavior of youth; some also address the behavior and needs of parents.

Most states and some tribes incorporate adult criminal codes by reference into their delinquency codes. They cite the adult criminal code violations and note that if a minor commits the offense, it is a youth crime.

The major differences between the adult criminal and juvenile codes are the penalty sections. Youth are subject to "dispositional alternatives" as opposed to a criminal "sentence," although both youth and adults may be subject to probation where a violation could result in detention (youth in a secure juvenile detention facility and adults in jail or prison).

Note also, that there is a big difference in punishment between tribal and federal jurisdiction over felony behavior. A federal conviction adds years to the terms of incarceration versus a tribal conviction for the "same" offense. If juvenile felony behavior is involved, the "offender" is charged in federal court and incarcerated in the federal system, where currently more than half of the incarcerated youth offenders come from Indian country.

About Federal Incarceration of "Indian Country" Youth

According to the Urban Institute’s Final Report on Tribal Youth in the Federal Justice System, Indian country juveniles made up 53 percent of the juveniles committed to the U.S. Bureau of Prisons between 1999 and 2008. Indian country juveniles committed during this period tended to be male American Indians convicted of a violent offense (assault, sexual abuse, and murder/manslaughter being the top three) and sentenced in one of the same five judicial districts (Arizona, Montana, North Dakota, South Dakota, and New Mexico). The Indian country juveniles were on average fifteen years old when the offense was committed and served on average sixteen months before serving approximately 81 percent of their sentence. The average time served doubled from twelve months in 1999 to twenty-five months by 2008.

Most were committed to the custody of the Federal Bureau of Prisons by probation confinement conditions. The majority of juveniles with adult status were committed for the first time either by a U.S. District Court (48 percent) or were supervision violators (31 percent).

According to the Federal Bureau of Prisons Federal Juvenile Population web page, the federal juvenile population has consisted predominately of Native American males with an extensive history of drug and/or alcohol use/abuse, and violent behavior. "Historically, the federal juvenile population has consisted predominately of Native American males with an extensive history of drug and/or alcohol use/abuse, and violent behavior. These juveniles tend to be older in age, generally between 17 to 20 years of age, and are typically sentenced for sex-related offenses."

About Public Law 280 States

In a Public Law 280 state, a youth may be processed by either the state or tribal justice systems, but often by the state system where the tribe does not choose to exercise its concurrent jurisdiction, often due to a deficit of resources.

Public Law 83-280 (commonly referred to as Public Law 280 or PL 280) was a transfer of legal authority (jurisdiction) from the federal government to state governments that significantly changed the division of legal authority among tribal, federal, and state governments. Congress gave six states (five states initially—California, Minnesota, Nebraska, Oregon, and Wisconsin; and then Alaska upon statehood) extensive criminal and civil jurisdiction over tribal lands within the affected states (the so-called mandatory states). PL 280 also permitted the other states to acquire jurisdiction at their option.

PL 280 has generally brought about:

1. An increased role for state criminal justice systems in "Indian country" (a term that is specifically defined in federal statutes;
2. A virtual elimination of the special federal criminal justice role (and a consequent diminishment of the special relationship between Indian Nations and the federal government);
3. Numerous obstacles to individual Nations in their development of tribal criminal justice systems; and
4. An increased and confusing state role in civil related matters (including tribal juvenile justice).

Juvenile prosecution is generally limited by the Indian Civil Rights Act (ICRA), and includes offenses that are misdemeanors or felonies charged as a misdemeanor, which limits the penalty possibility to misdemeanor recourses. ICRA limits punishment possibilities so that any actual prosecution is deemed a misdemeanor by virtue of the limited potential for fine/incarceration.

About the Indian Civil Rights Act

The Indian Civil Rights Act (ICRA) was enacted by Congress in 1968, and then amended in 1986, 1991, 2010, and 2013. Tribal inherent sovereignty predates the United States and the U.S. Constitution. Tribes did not participate in the Constitutional Convention and did not ratify the U.S. Constitution. As a result the Bill of Rights and other individual liberty protections found in the Constitution do not apply to tribal governments. After years of Senate testimony regarding abuse of Native individuals by state and federal officials, as well as tribal governments, Congress passed ICRA. This extended certain constitutional provisions to tribal governments. The 1986 amendment increased tribal sentence limitations, for a single offense, from six months imprisonment and/or $500 fine to one year imprisonment and/or $5,000 fine. The 1991 amendment reaffirmed tribal court criminal jurisdiction over all Indians (tribal members and nonmembers). In 2010 the Tribal Law and Order Act (TLOA) amended ICRA to increase tribal sentence limitations to a maximum of three years imprisonment and/or $15,000 fine. However, to exercise these enhanced sentences tribes must provide certain additional civil protections, including the provision of effective defense counsel and a licensed and law-trained judge, make the tribal laws publicly available, and maintain a record of the criminal proceeding. The 2013 amendment recognized tribes’ inherent authority to exercise "special domestic violence criminal jurisdiction" over non-Indian offenders who commit domestic violence, dating violence, or violate a protection order. However, in order to exercise this special domestic violence criminal jurisdiction, tribal courts will have to provide certain enumerated due process protections. These include all of the TLOA due process protections (even if tribes do not impose the enhanced sentencing options), as well as several additional due process protections including the right to an impartial jury.

For further information on ICRA, please see Tribal Law & Policy Institute, Indian Civil Rights Act.

Some tribal juvenile codes make an effort to segregate status offenses and delinquent acts (acts that would be crimes if the offender were an adult). The rationale for this is that status offenders (e.g., truants) should not be housed or treated with youth who may be exhibiting more serious antisocial behavior. There is a growing body of literature that points out that incarceration of status and low-level offenders often creates an enhanced offender who has been exposed not to socially accepted youth practices but to the opposite. All humans, youth in particular, mirror the behavior of the dominant group, and in an incarceration model it is important not to further reinforce the negative behavior model.

The Family In Need Of Services (FINS) model is designed to assist first-time, status, and low-level offenders and their families by assessing their needs and referring or ordering them to remedial or rehabilitative services, programs, and activities.

For more information on the FINS model, please see Chapter 21: Status Offenses/Family in Need of Services: Nondelinquency Proceedings General; Chapter 22: Nondelinquency Proceedings—Family in Need of Services (FINS) Interim Care; Chapter 24: Nondelinquency Proceedings—Family in Need of Services (FINS) Referral to Juvenile Counselor; Chapter 25: Nondelinquency Proceedings—Family in Need of Services (FINS) Breakdown in Parent-Child Relationship; Chapter 26: Nondelinquency Proceedings—Family in Need of Services (FINS) Consent Decrees; and Chapter 27: Nondelinquency Proceedings—Family in Need of Services (FINS) Dispositions.

C. Probate Codes

Generally speaking, probate codes offer guidance in the creation of nondependency guardianships. Guardianships are created for a variety of reasons, including parental unfitness; unavailability (including parents absent due to temporary or permanent medical problems, death, military service commitments, jail, or school); and family preferences and/or convenience. The guardianships may be over the person and/or the property of a minor. Who qualifies as a "minor" is defined in the code, typically anyone under the age of eighteen years of age.

The probate code may cover the issue of inheritance with or without a will. Family members are defined, including the concept of termination of parental rights and adoption. (This would only apply in the event of death without a specific will designation.) If a child inherits property/money, the responsibility of managing the child’s property is set out in the probate code.

The probate code may also cover the concerns of a youth who is incompetent. Incompetency can arise from the mere fact of being a youth, or from some actual inability to care appropriately for himself or herself, requiring a commitment to a facility for care.

D. Family Law Codes

A family law code is the other possible intersection of children with the law. This law applies to the children that come before the court because their parents or guardians either have not established parental rights or the grown-ups wish to change their relationship to each other, which necessarily alters their relationship to their children. These rights are played out in custody disputes that include issues of child support and may also touch on the child’s contact with parents and extended family.

Married or unmarried parents have similar rights, and these rights must be addressed if the parties cannot agree, and the code must have overall guiding principles; for example, parents should have equal custodial rights; parents must be able to provide age-appropriate supervision, care, and guidance; and parents must be afforded contact regardless of the ability of parent to provide ongoing care. There are questions about what principles should guide the decisions in family court (e.g., what to do when a parent is incarcerated), what coparenting skills/emphasis are essential, and so forth. Family codes set forth the philosophy of parenting, and that parenting philosophy should be consistent with the philosophy outlined in the juvenile justice laws. Protecting the parenting of children and securing family relationships is essential to the youth’s success. The codes that address children, adolescents, young adults, and their families, need to philosophically interface with and support each other.

Tribes are beginning to establish tribal child support divisions that are increasingly developing realistic child support guidelines, including in-kind contributions. The overall goal is for child support to emphasize coparent involvement.

E. Conclusions

It is readily apparent that any particular family could find itself simultaneously embroiled in more than one of the areas set out in the preceding text. They could be in four different courts, with four sets of requirements, with four different judges and court dates. Additionally, a family could find itself with a similar result from differing courts, for example, guardianship of a child could be determined in each of the courts, as each code could have a procedure for the establishment of a guardianship.

Each tribe must seek clarity of issues and approaches. One approach is to combine all possible statutes affecting juveniles into one all-encompassing code. Another approach, one increasingly favored, is that one judge be responsible for all of the possible matters involving families and children. These families would have their matters consolidated, so that the court system is working to support an overall approach, not frustrating families as they try to meet the goals of different professionals. This approach requires the court to be internally organized so that such case management is possible. It requires that treatment services, social services, probation, and the family law system have the ability to interact and collaborate.

[2.4] Collaborative Justice Courts in the Juvenile Court Systems

The kind of approach previously outlined has also been termed collaborative courts (sometimes called problem-solving courts, and in the juvenile system sometimes referred to as diversionary courts). They are part of a larger movement to make courts more responsive to the needs of users. This has evolved partially as a convenience to the courts and more particularly to supportive services that seek to consolidate their appearances to conserve resources. Additionally, users of the services have found that exposure to a similar community can offer further support to their individual efforts. This section describes a number of different types of collaborative courts emerging in the juvenile court system.

The calendaring (scheduling) of matters in clusters has also been a trend in recent years. Cluster calendaring is also used in dependency courts; however, consistent with the focus of this commentary, the following discussion is limited to delinquency.

A. Wellness Courts

Wellness courts represent a movement in nontribal circles generally called drug courts. Most tribes prefer the designation wellness as opposed to drug, wishing to place an emphasis on the positive approach they are seeking to institute. They feature a team approach with the team being headed by the judicial officer, and the treatment team consisting of counselors, therapists, case managers, and others who are working with the individual to establish a treatment plan for substance abuse, including after care. A critical component of this approach is regular and formal contact with the court. The objective is to encourage the offenders to form a personal relationship with the team, and especially with the judicial officer.

The court encourages the personal progress of each participant. Consequences for missing court are part of the contact, but the consequences (at least initially) are increased involvement in wellness activities, not penalization. This is a court and/or calendar that benefits from having the involved individuals support each other as peers, as well as from noncourt-based activities for individual, family, and community support.

Please see Chapter 31: Wellness Court.

B. Mental Health Courts

Mental health courts have been tried on a limited basis and require a sophisticated support team. The basic structure of the court, requiring frequent contact and team meetings, mirrors the collaborative court approach of wellness courts. The requirements as to medication, treatment goals, and so forth, are often structured to aid the participant to avoid further nonproductive contact with the justice system.

Referrals to this court usually evolve from criminal contact by the "defendant," and this court can operate as a diversion court. The object is to assist the defendant to moderate and regulate their mental health needs with the goal of avoiding criminal contact. The individual’s contact with the criminal justice system is often seen as resulting from untreated mental health concerns.

C. Truancy Courts

Truancy courts are often combined with delinquency and/or dependency courts depending on the age of the truant. Truancy among young children is most often seen as the responsibility of parents and guardians. Among adolescents, truancy may or may not be the responsibility of the parent or guardian. Additionally, the courts may respond to truancy citations (violations that charge the parent or guardian and/or youth as the offender) to parent/guardians and/or the youth.

The main goal of these courts is to reduce truancy, improve the school performance of the youth, and support their continued education. The court can and will explore the issues of the youth, attempting to identify the reasons the youth is habitually truant and possible remedies. It may also look at the school’s support system and determine where there may be deficits. Both the school and the youth are required to participate in truancy court and remediation plans may involve the youth, family, and the school support team.

Please see Chapter 28: Nondelinquency Proceedings—Truancy Provisions.

D. Peer or Teen Courts

Peer and/or teen courts are generally considered diversion courts, also called collaborative courts. They feature frequent contact with the court, a treatment team approach, and, upon successful completion, a dropping of all offenses so no juvenile offense record is created. Peer courts most often hear either low-level misdemeanor community offenses or school behavior referrals. Generally, because the process involves a minor, the youth’s parent or guardian must agree to the referral to peer courts. Confidentiality is required. Adults supervise the courts but all of the roles of the court are performed by teens. The youth are trained (coached) in their roles, by those adults who assist the functioning of the teen court and by their peers. The peer courts offer an opportunity to divert the offender from the juvenile system, as well as a learning experience for the teens filling the necessary roles. Successful completion of the process, including sentencing requirements, most often results in a dismissal of the complaint or dismissal prior to the filing of the complaint.

A common feature of this particular court is that the successful defendant is then required to participate in future court proceedings as a juror or in another court role.

Please see Chapter 33: Teen Court.

E. Youth Domestic Violence Courts

Youth domestic violence courts operate like adult domestic violence courts, with the use of restraining orders and a heavy concentration on intervention and treatment with the batterers. This is seen as an early intervention approach that attempts to interrupt the development of a lifetime of battering by the youth.

Cultural responses are often incorporated into this approach to educate the youth on proper roles and responsibilities. Behavior alteration is seen as a primary focus. This kind of court may involve a family approach if the court sees the violence is a carryover from the family of origin.

F. Gang Courts or Gun Courts

Gang courts or gun courts are diversion courts, but are often more punitive than is the norm for collaborative courts, with the diversion aspect coming only after an admission of guilt and responsibility but prior to sentencing. Sentencing is diverted so long as the youth is in compliance with program requirements.

This kind of court normally requires a very structured plan, including stay-away orders from individuals and activities, curfews, school, job, treatment (groups), and mentoring. Heavy supervision by a case manager and/or probation officer is generally a significant component of this court. Entry into the program may also involve a commitment to tattoo removal for specific gang tattoos. Significant failure to follow the plan can result in very onerous consequences for the offender, often including incarceration for corrective purposes or longer-term incarceration viewed as punitive consequences.

These courts are often the courts of last chance before significant incarceration. They require heavy monitoring by the judicial officer and by the "treatment team."

G. Girls' Courts

The number of girls being arrested has continued to increase in the last decade. Courts and probation officers have noted that girls’ problems and responses and their overall ability to engage in traditional probation services are markedly different than those of boys. Increasingly, probation departments are moving toward developing separate girls’ services. Even for shared problems, for example, substance abuse, girls require a different approach then boys.

The focus here should be on the number of girls involved in juvenile justice systems, the problems presented, and the potential referrals. If a specific tribe notes a significant influx of girls into the delinquency system, it is essential that the justice system planners consider this to be a specific and separate problem area to be addressed by a specific approach and treatment team that is familiar or willing to become familiar with "girls’ issues."

[2.5] Special Issues

Additional issues do not necessarily fit neatly into any category but need to be considered in the creation or revision of a systems model. They are considerations that will impact not only the systems, but also the children and families that are required to appear in these systems.

A. Enrollment

It is the responsibility of every branch of the court to ensure that all youth who appear before the court are enrolled if they are eligible for enrollment. It is a basic citizenship right and the responsibility for youth enrollment must be placed upon adults. If enrollment has not been accomplished it should be required. Much of the future reciprocal responsibilities of the youth and the tribal community flow from this status, and as such it is a primary requirement. As long as enrollment does not flow automatically as a birthright but requires affirmative action, that action is the responsibility of the responsible adults in a youth’s life.

See Chapter 6: Subject Matter Jurisdiction.

B. Minority Status and Emancipation

Each tribe must decide at what age their members will become adults, no longer subject to the special protection of the law afforded by their minority status (meaning under age). The accepted standard for the population of this country currently is eighteen. Note: the state and federal systems that interact with the tribes have selected eighteen, but some systems are recognizing that young adults are not able to function without continuing support during the transition period to young adulthood. This realization may eventually influence a change in recognition of the child/adult line. This is particularly true of children with little family support; for example, foster care graduates. Tribes have historically deemed children of age at different demarcations, some of them being functional (when a child might be ready to participate in ceremonies or to engage in subsistence activities) and some being status (the mere fact of reaching a certain age). The need to interact with state and federal systems requirements may compromise a tribe’s ability to make an independent call as to all status issues.

This type of decision and the rationale for the decision must come from the history and norms of the tribe, the community’s sense of responsibility, and the ability of their youth. Tribes should also review and consider current research on the brain and adolescent development, which recognizes that the brain is not fully developed in many young adults until they are close to twenty-five years of age.

Emancipation is an issue that often enters into this discussion. Emancipation in this context means to release a child from parental care and responsibility. Many codes list criteria for such a release, for example, a certain age (if the youth is not yet at the age of adulthood); demonstrated ability to financially care for themselves; a residence; graduation from high school; and the desire to enlist in the armed services and/or participate in marriage.

Please see Chapter 6: Subject Matter Jurisdiction.

C. Should Court Rooms be Open or Closed?

For any or all of the courts noted previously, there is a question of whether they should be closed to the public and confidential, with only needed staff and participants allowed in court? This is a public policy consideration. Non-Indian courts have long struggled and continue to struggle with the issues of closed versus open courtrooms. In brief the arguments are as follows. The proponents of open courtrooms claim that the public has a right to know and a right to oversee the workings of justice. Those opposed to open courtrooms claim that family business is family business and privacy protects a youth from public scrutiny. Closed courts allow the family to have the time and space to work on their issues in private. Additionally, research on adolescent brain development would argue in favor of a closed court policy to protect against stigmatizing youth (and thus further harming them) who are simultaneously working through difficult circumstances and development stages.

There is also a possibility of partially open courtrooms. This involves setting up protocols for both matters that are open and matters that are closed to public viewing. The issue of open court rooms for certain offenses are community issues and need to be resolved with community input.

Please see Chapter 11: Rights in Juvenile Proceedings.

D. Expungement and Destruction of Juvenile Records

Expungement and destruction of juvenile records helps to shield the youth, whether before or after reaching majority age, from the long-term impact of a criminal record. A criminal record often becomes an issue when a youth enlists in the armed services, seeks a professional license, seeks employment, or applies to school and is required to disclose any past criminal record.

There are rules (federal/state) providing a procedure for expungement of a juvenile record. In drafting a juvenile code attention should be paid to these issues, and the options should be discussed and resolved according to community standards, keeping in mind how long-term impacts may or may not serve the community as a whole. The inability of a youth to transcend early mistakes may seriously impact their lives. It is essential to determine whether the long-term impact of juvenile court records is in the interest of the individuals (offender/victims), families, and communities being served by the juvenile justice system.

Please see Chapter 10: Juvenile Court Records.

E. Transfer to Adult Court

Transferring delinquency cases to adult court is an increasingly common approach in state systems. During the 1980s and 1990s violent youth crime rates rose and the media often depicted teenagers as members of violent street gangs or as "super predators." The public, when polled, thought the juvenile court’s lenient treatment of young offenders contributed to the problem. In response, state lawmakers changed the laws to subject youth who commit serious crimes to adult criminal court jurisdiction. The goals of this policy were to protect the public and to punish the offenders. More recent studies by scholars researching state juvenile justice system policies and laws, have argued that many states passed increasingly punitive laws in response to "moral panics"—where the public, the media, and politicians reinforced each other in an escalating pattern of intense and disproportionate concern in response to a perceived social threat posed by a particular group of individuals, here predatory youth, who threatened the moral order.[8]

Alarmingly, this state approach is being adopted by some tribes even in the face of empirical evidence indicating that it does not help the offending youth or serve the protection needs of the community. It is a reactive response to youth violence concerns, as it is increasingly the younger violent offenders who are normally subject to such an approach. Punitive responses, while seemingly comforting to the public in the short run, need to be rationally examined for effectiveness. If they are found to be effective, then there is some basis for discussion, otherwise this approach is misguided.

We note that the University of Washington’s Center of Indigenous Research and Justice in its recently completed Model Tribal Juvenile Code, drafted as part of the John D. and Catherine T. MacArthur Foundation’s Models for Change initiative, completely omits provisions transferring juvenile cases to adult criminal court, even for serious offenses. The purpose and policy section at 1.01.110 (d) reads:

This article shall be construed and interpreted to fulfill the following purposes: to remove from children committing delinquent acts the legal consequences of criminal behavior, and to substitute therefore programs of supervision, treatment, and rehabilitation which: (1) hold them accountable for their actions; (2) provide for the safety and protection of the community; and (3) promote the development of competencies which will enable them to become responsible and productive members of the community.

Chapter 3: What Is Needed—Assessing Resources

[3.1] Age/Offense Appropriate

The issues presented to a tribe when considering whether to create a juvenile justice code require a multipart analysis. Initially the team must consider the magnitude and dimensions of the juvenile justice problem in the community. Then the team must consider whether the community has the ability and willingness to work with youth who find themselves in trouble, as well as working with the families of those troubled youth.

The team must also decide at what age certain defined behavior(s) become potentially "criminal," as opposed to a problem requiring parental and/or family intervention. A growing area of concern is determining when a behavior problem requires school intervention as opposed to law enforcement attention. Criminalization of school behavior at all ages has upset many parents, but that must be balanced with the concerns of school teachers and administrators who fear that out-of-control students are interrupting education and posing a threat to others in the school environment.

It is possible for a team to progress into a full juvenile justice system in a piecemeal manner. For instance, a community after reviewing key issues may decide to start only with status offenses as outlined in the previous chapter, or may seek to work only with those offenses that would be considered misdemeanors if committed by adults. Assuming responsibility for felony offenders, even considering the restrictions of ICRA, requires development of a complex system, including treatment and detention that is often very costly. Many tribes have opted to limit their response to juvenile felony violators to reentry programs (Reentry is not addressed in this iteration of the Juvenile Code Resource. This topic could be covered in a section of a juvenile code; it could also be the subject of a separate tribal reentry statute.) that help the youth transition from felony treatment or incarceration back into the community.

Decisions around the scope of a juvenile justice system should be driven by perceived problems and potential resources. Juvenile justice systems have a tremendous need for resources; they are not and cannot be expected to become self-sufficient overnight. The hope is that by judicious use of specialized resources addressing the problems of tribal youth at an early stage, the negative influences on and in the community can be eliminated and these youth can be transformed into community resources.

[3.2] System Support/Collaboration

The juvenile justice system is made up of various entities with multiple needs (e.g., the courts, attorneys and lay advocates, law enforcement, probation, case workers, social and behavioral services, residential and detention facilities). It is essential that each part of the system is created with the understanding that it is related to, but not controlling of, all other segments of the system. The most effective systems are those where there is understanding and collaboration. All parts of the system must be, in general, committed to the same goals if the system is to be effective. All players must buy in to the philosophical underpinnings of the system or the system will work against itself, thereby decreasing effectiveness, and in general frustrating workers and users of the system.

A. Law Enforcement

A respected police department with officers who perceive themselves as community protectors is essential. They are the face of justice for much of the community. To be effective in their role as law enforcement officers the officers must be seen as protectors. They must be integral members of the community. They must be persons who have personal reputations for fairness and who support the needs of community youth, elders, and families. The more grounded they are in the tribal culture and the community, the more effectively they will carry out their obligations.

Professionally, it is essential that tribal law enforcement officers are equally competent to state and local police officials, and are also perceived to be so by the community. Their ongoing competency is critical, and it is recommended that they avail themselves to federal officer and other training opportunities, as possible. Continued training should be mandatory. Part of their job responsibilities should include being a member of the communities they serve. Some jurisdictions use officers as prosecutors or presenters in juvenile court. Though this seems a quick fix to filling the role of prosecutor, it is not ideal, because the role of prosecutor is time consuming and pulls the officer out of the field, leaving the community without the active presence of officers on patrol.

Additionally, law enforcement must have modern equipment. It is unacceptable to have a force that does not have the ability to protect themselves and their community. The law enforcement department can be expensive, but it is a critical branch of tribal government.

B. Prosecutor (a.k.a. Presenting Officer)

The juvenile justice system must have a person designated to review the reports that are forwarded to the system for possible dependency, delinquency, and/or criminal filing, which may include diversionary filings. The minimum requirements for this position include advocate-level abilities, for example, advanced competency in reading and writing, coupled with the ability to communicate verbally at an advanced level and a good working knowledge of the community and the culture of the community.

The prosecutor must see their role as integral to the system and be willing to participate as a community member. The most effective prosecutors are those who are not just seen as aligned with law enforcement but also seen as aligned with justice and fairness (including therapeutic goals). They need to be able to represent the interests of law enforcement, victims, and the community, while not losing sight of the very real fact that the "wrongdoer" is also a member of the community and many are also "victims" in their own right.

See Chapter 17: Presenting Officer/Prosecutor and Consent Decrees.

C. Attorneys/Lay Advocates

Consistent with the federal ICRA, the tribal juvenile justice system must allow youth in the juvenile or dependency court to have legal counsel (an attorney or a lay advocate at their own expense). The minimum requirements for this position vary under tribal law given the tribe’s choice of sentencing power. However, juvenile matters are unlikely to result in the secure detention of a juvenile for a duration of longer than one year. Secure detention for longer than one year would trigger federal law requirements that a tribe pay for a licensed attorney for a youth involved in juvenile court. However, many tribes are opting to pay for licensed attorneys for youth, in any case, to protect the rights and interests of youth in the tribal juvenile justice system. Nevertheless, many tribes continued to allow lay advocates to practice in their justice systems. The requirements for such practice varies under tribal law and can range from the mere payment of a fee with approval to practice by the Chief Judge to passage of a tribal or state bar exam.

Lawyers and lay advocates will need to educate themselves about the purposes and role of defense counsel in therapeutic court dockets such as wellness [drug] court for the purpose of successfully habilitating or rehabilitating their clients. Many other types of diversion and community-based programs will have similar requirements. Lawyers and advocates will also need to familiarize themselves with existing programs and should be encouraged to participate in the development of new programs.

D. Juvenile Judge

The juvenile court judge is required to further the tribe’s juvenile justice policy and the purposes of the juvenile code. In more modern codes these tasks are about supervising and coordinating treatment and other services and monitoring and responding to youth and family compliance and/or noncompliance. Only in extreme cases will the judge adjudicate (hold a trial for) a youth to be a delinquent (to find him or her guilty of committing a juvenile offense)—and to sentence that youth to secure detention.

The tribe’s juvenile code purposes may include some or all of the following: (1) securing the care, protection, and mental and physical welfare of youth; (2) preserving and retaining the unity of the family; (3) removing from children committing delinquent acts the legal consequences of criminal behavior, and substituting programs of supervision, treatment, and rehabilitation; (4) ensuring that the rights of the parties are recognized and protected; and (5) coordinating services for youth and their families with an emphasis on prevention, early intervention, diversion, and community-based alternatives.[9]

Judges who have not previously worked in juvenile court will need to educate themselves with respect to the rehabilitative focus (as opposed to the criminal court’s primarily fact-finding and punitive focus) of the juvenile justice system, the preferred use of diversion programs, and particularly therapeutic diversion programs (e.g., wellness [drug] court). Juvenile judges are essential leaders in the co-development and operations of therapeutic dockets and community-based programs (including tribal-school efforts to respond to truancy). They will need to understand their new and unusual role as reform team leader, collaborating team leader in justice system operations, parental figure, mentor, sponsor, and supporter of the success of tribal youth.

E. Probation Department

Probation officers are generally required to "enforce" terms that the court imposes on youth. Behavior requirements often arise when an adolescent or young adult is released pending adjudication or postdispositional requirements imposed on the youth (the youth must complete requirements as part of their obligation to the court for admissions, findings, or convictions). Occasionally these requirements may be imposed as diversion requirements, meaning that if the youth and his or her family comply with certain requests the matter will not be officially filed or brought to court. Diversionary supervision is usually less intensive, and may be referred to case managers (described in the following text).

Probation officers should complete course work in their area of concern at the junior or other college. If there is not an available candidate with the academic credits/training then it is essential that the probation officer have competency at the advocate level (advanced competency in reading and writing, coupled with the ability to communicate verbally at an advanced level and a good working knowledge of the community and culture of the community).

The probation officer must assist the youth and their family in determining what services would benefit the youth and family to address the problems noted; assisting in the assessment of services; providing ongoing monitoring and encouragement for the youth; and providing a progress report on the youth for the court.

Probation officers often interact with the youth when he or she is referred or first brought in (sometimes detained or arrested and sometimes taken into protective custody). If detained or arrested, they initially determine if the youth is releasable, and under what conditions. They also interview the youth, family, and community (victim) at an appropriate presentencing point. The interview summary report will become part of the probation officer’s report to the court.

Perhaps the most important facet of probation officers’ responsibilities is their partnership with the youth and his or her family. They must align with the youth while meeting their quasi–law enforcement responsibilities. They monitor compliance and ensure that compliance is progressing. Under many juvenile justice processes, probation officers oversee youth and family compliance with pretrial, diversion, and posttrial programs and services. Good probation officers are akin culturally to clan and/or aunt and uncle relatives. They are a loving, nonjudgmental presence that can help determine community standards and assist a wrongdoer to right his or her wrongs.

About Family Group Decision Making

Consider Having Your Juvenile Intake or Probation Officers Use a "Family Group Decision Making Process."

Family Group Decision Making ("FGDM") recognizes the importance of involving family groups in decision making about children who need protection or care, and it can be initiated by service providers and/or community organizations whenever a critical decision about a child or youth is required. In FGDM processes, a trained coordinator who is independent of the case brings together the family group and the service providers to create and carry out a plan to safeguard children and other family members. FGDM processes position the family group to lead decision making, and the statutory authorities agree to support family group plans that adequately address agency concerns. The statutory authorities also organize service providers from governmental and nongovernmental agencies to access resources for implementing the plans. FGDM processes are not conflict-resolution approaches, therapeutic interventions, or forums for ratifying professionally crafted decisions. Rather, FGDM processes actively seek the collaboration and leadership of family groups in crafting and implementing plans that meet the child’s or youth’s needs.

Taken from University of Colorado, Kempe Center, National Center of Family Group Decision Making. For more information the purposes, values, and processes of Family Group Decision Making Process, go to the Kempe Centers, Family Group Decision Making in Child Welfare - Purpose, Values and Processes.

F. Case Managers/Community Workers

Generally in the juvenile justice system case managers are used for certain "dockets" or "calendars" (court actions are grouped by type, e.g., children’s court [dependency], juvenile court [status, delinquency, and FINS], family court [paternity, divorce, and probate], criminal court, and wellness court [drug court]). Case managers develop an expertise in the services needed for their area of specialty. For instance a wellness court worker would have access to and be acquainted with substance abuse and mental health treatment and treatment-associated resources.

Case managers, in addition to their specialty knowledge, need the advocate skills outlined. This knowledge is combined with their community and cultural awareness and their ability to align with the youth and their families. The partnership responsibilities outlined in the probation officers section are equally applicable to case managers.

G. Facilities—Treatment and Electronic Detention

There is a significant lack of juvenile facilities in Indian country for youth. All but a few tribes are too small in population to support a full range of facilities required to address the divergent needs of a stressed youth population. Additionally, serious offenders are either housed in state or federal facilities because of the jurisdictional composite imposed on reservations.

Tribal juvenile systems need to designate a liaison officer to work with youth that are housed in off-reservation facilities, whether they are treatment or locked facilities. The liaison officer may be a case manager, but his or her responsibility would include maintaining contact with the youth and his or her family during the period of treatment or incarceration. The liaison officer should develop a transition plan for the return of the minor to the community. It is possible for tribal systems to partner with other systems off reservation when the primary purpose of out-of-home placement is for treatment. Partnering can involve locating culturally appropriate treatment and ensuring that monitoring and support is there for the youth. It is important that any period of separation from the community and family does not end up feeling to the youth like they have been thrown away.

Additionally, tribal/state/federal agreements can be put in place to exercise concurrent jurisdiction, under which the tribe constructs agreements supporting dispositional alternatives that feature wraparound services. An example of concurrent jurisdiction would be allowing a youth to opt for treatment in a tribal or Native facility. A treatment failure would result in a period of time at a locked nontribal facility.

Another alternative is to impose electronic monitoring. This requires a careful assessment, and should not be widely used as the success of the monitoring requires a level of commitment that youth without substantial family support may not have. The monitoring program can be a global positioning system (GPS) and/or a drug or alcohol monitoring system. This approach has been very effective with youth who have support and who have the external/internal resources to help them comply. Many jurisdictions have statutes that allow for such monitoring by classifying the monitoring as "detention."

See Chapter 9: Relations with Other Agencies and Courts.

H. Housing Needs

Many youth find themselves in an impossible situation with parents who are unable to parent on a full-time basis due to parental incapacity. When this occurs, if a youth has a caring adult parental alternative, who provides housing and supports the youth’s need for care, the tribe needs to be able to carefully evaluate that alternative and support where reasonable. Although group homes, residential schools, and so forth may be less than desirable, adolescents and young adults may prefer those alternatives. It is preferable that these placements be achieved without designating youth as dependents or delinquents. It is important to realize that alternatives do not have to be limited to those developed in the dominant society. Even considering giving adolescents the right to partial emancipation or any other designation that supports their semiindependence may be a good option at times.

Labeling does not further these solutions. Parents and youth will often turn away from alternatives not wishing to be stigmatized by terms such as delinquency or dependency. Any structured supportive alternative may be preferable to youth who are essentially homeless.

I. Mental Health Assessment and Treatment

There is a tremendous need to have competent mental health services available for tribal youth and their families. Trauma, both historical and individual, is in recent years being understood as a cause of negative behavior in tribal youth.

Juvenile justice systems need to assess the nature and degree of trauma in tribal youth, families, and communities, particularly as Native communities have been ground zero to much trauma. Traumatic events may include the following:

1. Abuse or assault: physical, emotional, sexual
2. Exposure to family violence/intimate partner violence
3. Accidents that cause injury and/or death to family and/or close friends
4. Deliberate harm by others; torture; abuse; abuse of power
5. Harm by others in the line of duty
6. Negative consequences of economic policies, poverty
7. Homelessness, being a refugee
8. Human caused and natural disasters
9. Living under occupation or in conditions of servitude or slavery
10. Mass violence: assaults, massacres, genocide, wars
11. Neglect by others of those cannot care for themselves
12. Serious illness
13. Structural violence (social structures and institutions that deprive people of their rights and ability to meet basic needs)
14. Sudden loss of loved ones, status, identity, possessions, home, territory
15. Sudden changing of the rules, expectations or norms
16. Surgical, dental, and medical procedures, including difficult births
17. Witnessing death or injury

Of particular importance in Indian country is historical trauma, which is the "cumulative emotional and psychological wounding over the lifespan and across generations emanating from massive group trauma."[10] This trauma is pervasive throughout Indian country. Mental health providers have researched historical interactions that have negatively impacted tribal communities to understand the root causes of current behaviors.

Understanding the impact of trauma in Indian country is essential. Untreated trauma results in reenactment behaviors, those that turn unhealed trauma energy against the self or others. Upon analysis, untreated trauma can be identified as the basis for much "deviant behavior." It is important to identify the source of such behavior if treatment or resolution of the behavior is one of the objectives of bringing youth into the juvenile justice system.

To recap, careful assessment of potential trauma must be part of any examination of a youth’s presenting behavior. If trauma is found, then the treatment plan must incorporate trauma-based responses.

Please see Chapter 29: Trauma-Sensitive Statutory Provisions and Chapter 24: Nondelinquency Proceedings—Family in Need of Services (FINS) Referral to Juvenile Counselor.

J. Schools

Youth committing delinquent acts in a community often have academic histories that are riddled with problematic behavior, including truancy, social problems (acting out), and significant issues with academic performance. Tribal youth must be educated to be good tribal citizens and competent parents, and to be able to participate successfully in the workforce. Failure in school often foreshadows a lack of success as young adults and is a common factor among the prison population.

It is essential that any juvenile justice system place a heavy emphasis on the academic performance of potential and actual offenders. This may include academic testing and remediation. Between 69 and 85 percent of the prison population shows a failure to graduate high school. (These figures are not Native specific.) Most professionals working with youth predict that a lower prison population could be supported by a higher high school graduation rate. If tribes wish to do better than our state neighbors they must not ignore the implication of the relationship between high school success and criminal involvement. School issues must be given primary attention to avoid the long-term impact of educational shortcomings.

Another issue that communities should resolve is the presence of law enforcement at school sites and the use of law enforcement for disciplinary intervention with troubled and problematic students. The recent specter of elementary children being hauled off in handcuffs for admittedly bad behavior or tantrums has caused many parents and educators to call for a review of the trend to arrest children exhibiting problem behaviors. Frustrated school administrators fearing damage to facilities and injury to staff and other students are increasingly calling on law enforcement, when parents do not respond to less drastic requests. However, the consequences of criminalizing children must be seriously considered. Other options must be fully explored as the long-term impact on the individual child and the attendant "cost" to the community is potentially very high.

K. Cultural Resources

The juvenile court should strongly consider establishing a cultural division inside the court. This entity or position would be responsible for establishing individualized cultural reengagement or engagement plans for youth. The court should have the ability to provide mentors for youth, with activities that are supportive of the participant developing values consistent with those of the tribal community. These activities should be individualized and feature both group and one-on-one services. Language class involvement has proven successful in increasing youth self-esteem in many communities.

It is not enough to talk about making culturally relevant systems. Such a system requires a commitment and a visible presence. It is very important, particularly for a juvenile justice system that official promises and talk match up with the reality presented to youth and their families. Our youth are the future and they have seen state and federal officials talk about how important youth are while NOT allocating resources to youth needs. Tribes have talked about the importance of culture, the importance of those values being the guiding principles for our youth; and it is incumbent on tribes to dedicate whatever resources are necessary to demonstrate their commitment to Native culture.

See Chapter 30: Integrating Culture, Customs, Traditions, and Generally Accepted Practices.

L. Transitional Supports, Including Housing

Life skills are essential for tribal youth. Parents and parental figures need to model life skills and/or ensure that they are taught to youth. It is important that youth involved in the juvenile justice system acquire such life skills, without them they cannot be successful. If youth cannot support themselves, as in providing for their own food and shelter, getting and holding a job, and engaging in future planning, then they should not be allowed to age out of the juvenile system. It is not about an age requirement, it is really about youth being able to meet the requirements of caring for themselves.

It is possible to assist students, in college or completing certificate programs, with housing while they are completing their education. However, vacations, breaks, and graduations must be considered. Supervised youth hostel facilities or living stipends to assist in transitions are a possible solution. Transitional supportive housing for young adults is a problem that needs to be addressed along with all the other housing concerns of reservations. Housing for this age group should be supportive and have on-site services that will assist youth in their primary concerns of job search, budgeting, planning, and so forth.

M. Support for Parents

Parents may need assistance ranging from visitation support (if the child or adolescent is housed away from the community), directed parenting assistance (e.g., how to parent an adolescent, a special needs adolescent, or an adolescent parent), and respite care. Some parents need assistance in applying for programs for their children (scholarship, financial aid applications, public aid programs, program admissions forms, etc.). It is essentially impossible for youth to succeed without adult assistance, and the adult assistance needed increasingly requires substantial knowledge.

A frequent concern is that a youth may be manifesting a family problem and the "real" issues are in the family, or lodged in family-based dysfunctional behaviors. If the youth’s behavior is a symptom of the family’s issues then the issues can become quite complicated. Many juvenile systems allow for cross-referrals, and it may be appropriate to institute dependency proceedings. On occasion it is appropriate to combine the two matters and treat the family issues with the delinquency behavior.

There is also the issue of parents who may lack physical and/or mental capacity without assistance to parent their children. These parents may be able to parent, or partially parent with supportive services, and very careful plans have to be made to provide such ongoing support.

Please see Chapter 25: Nondelinquency Proceedings—Family in Need of Services (FINS) Breakdown in Parent-Child Relationship.

N. Victim Services

Although most if not all tribes have adopted the approach of the dominant society that crimes are against the tribe as in "People vs. Defendant" or "Tribe vs. Defendant," it has historically been the position of most tribal cultures that the person wronged is not the tribe, rather it is the person(s) harmed by the action or inaction. In recent decades the state and federal governments have looked to the concept of adding the victim to the equation of justice, not just as a witness, but rather as a party who may participate in the court process, and have their concerns redressed directly.

Victims are being allowed to directly address the court(s) in terms of sentencing; address the perpetrators in terms of harm caused, and so forth; and seek restitution for property destruction, physical harms, or the costs associated with those harms.

In addition, restorative justice and/or programs incorporating the concepts of restorative justice have increasingly come into favor, allowing victims’ concerns to be addressed directly by the wrongdoer. This may or may not include direct interaction of the parties, and the negotiation of a plan to make the matter right between or among them.

O. Restorative Efforts—Activities

The previous chapter discussed in summary fashion the approaches of restorative justice. These concepts are culturally familiar and comfortable to most tribes and should be considered as available to youth and their families. Restorative justice practices are designed to restore harmony to the community; repair, as much as is possible, the relationships of the parties; and allow the return of the youth to good standing in the community.

Restorative justice is ideally suited for communities that historically and currently are somewhat insular or isolated. The system creators or those tasked with improving the juvenile justice system should review these concepts and consider whether and how to incorporate them into their tribe’s system.

About Family Group Conferencing*

A Family Group Conference ("FGC") is a facilitated group dialogue and decision-making process in which a young person who has done harm is encouraged and supported to be directly accountable to the person who was harmed. The focus is on doing right, not on punishment. Typically, participants in a FGC include a young person accused of a crime, his/her family, the persons who were harmed and their supporters, and a trained facilitator. Depending on the severity of the crime, a member of law enforcement might also be present. Ideally, an FGC results in a consensus-based plan for repairing the harm to the extent possible. When the young person completes the plan, filed charges are dropped. The participants also try to understand why the offending happened and tailor the plan to help prevent future wrongdoing.

FGC can also be used in lieu of traditional school discipline processes that would otherwise result in suspensions or expulsions for more serious negative behavior on school campuses. Ideally, a single restorative system of youth accountability that addresses both school needs and juvenile charges would result when youth commit crimes on school campuses.

History of Family Group Conferencing

Family Group Conferencing is the national model for addressing youthful wrongdoing in New Zealand. The Maori—New Zealand’s indigenous people—spoke out against the disproportionate incarceration of their youth and advocated for FGC as a more effective model for dealing with youth crime. In 1989, the New Zealand government passed the Children, Young Persons, and Their Families Act which adopted a national model for using FGC in all youth crimes other than murder and manslaughter. Since 1989, youth incarceration has been rendered virtually obsolete, juvenile detention facilities have been closed, recidivism rates have plummeted, and victim satisfaction rates are high. Family Group Conferencing, taken from Community Works.

[3.3] Dispositional Alternatives

The system must have at its disposal the ability to impose consequences that are appropriate for the youth offender, the family, the victim(s), and the community. The consequences must fit the gravity of the offense and the real needs of the youth to learn and incorporate behavior changes. The alternatives must be tailored to the offense and the offender. A certain amount of attention should be given to graduating those consequences to allow the offender to modify or correct his or her behavior with limited consequences. Increasing the consequences is usually associated with increased restriction of freedom of movement, but should also be associated with increased services as in treatment service requirements.

What follows is a listing of possible alternative services for the youth. These services may be tribally established, be contracted for, or be provided by neighboring local, state, or federal governments or nonprofits. If the consequences are imposed from outside the tribe, it is important to remember that continued connection of the youth with their tribe and their family is extremely important to their eventual ability to absorb the "lesson." In all likelihood, and assuming eventual release, the youth will return to the tribe. He or she may have continuing problems if the underlying issues are unaddressed. The youth may then reintroduce his or her problems to the community.

A. Placement Options—Out of Home Detention, Treatment, and Foster Care

After youth have been subject to punitive measures, they are returned to their home, maintained in their home, or face an out-of-home placement. Less serious offenders may have the opportunity to address mental health concerns and/or substance use/abuse issues during inpatient care. Indian Health Services and specific tribal agencies may offer access to some facilities. It is important that each tribal juvenile justice system’s personnel become familiar with the available tribal and neighboring local, state, or federal options. In situations in which there is concurrent jurisdiction and/or intergovernmental agreements, additional placements may be available to youth and some of these facilities may be open to providing culturally relevant supportive services. In all cases there is also a need for after-care services. Planning for those services is essential and should begin before a youth is released from a facility.

If the youth needs an increased level of supervision or would benefit from services and opportunities available from an out-of-home placement, but does not require out of family placement, then foster care/a guardianship/an Indian custodianship is a possible placement option. This could include extended family placements and/or placement with an unrelated adult who is known to the youth and/or the family and who is able to offer a suitable home. A case manager or probation officer will need to supervise and monitor such placements, depending on the offense and the level of supervision needed.

Serious offenders will be housed in locked or semilocked facilities. Those offenders also require ongoing supportive contact and transitional services.

B. Home Detention

Home detention is basically house arrest with limited access to supervised activities, including school and school-related activities. It may include an ankle monitor with GPS and/or substance-use monitoring. It may also include access to counseling (individual or specialized, e.g., domestic violence, antitheft, driving skills), outpatient treatment programs (featuring frequent and random drug/alcohol testing), and employment.

Home detention is often seen as an opportunity for youth to demonstrate their willingness to work with service providers and to show they can discipline themselves with support to avoid bad behavior. This requires parents or adult figures who will support the needs and demands of the supervision and who will place the agreement to report noncompliance at the top of their parenting list.

C. School Placements

This kind of placement can be as simple as requiring a student to reengage in school through the continuation of school or a GED program. It may require a boarding school or other specialized academic program, depending on the needs of the youth in question.

Sometimes youth can find it very beneficial to have a "change of scenery" with a chance to start over where their past does not have to be confronted on a regular basis. The essential importance of this requirement to continue education is that youth MUST achieve, as much as possible, education competency and success to avoid further and continued involvement with the criminal system.

D. Specialized Programs, Classes, and Mentors

Specialized programs and classes can be developed on reservation or found in the surrounding communities. They may address certain behaviors, giving the youth tools and information designed to assist them to avoid pitfalls or to acquire needed skills for success.

These classes include but are not necessarily limited to the following:

1. Antitheft
2. Graffiti abatement
3. Alcohol and substance abuse education
4. Driving classes
5. Cultural how-to classes—including producing items and/or attending community events
6. Cultural classes on historical and traditional knowledge
7. Domestic violence classes
8. Life skills classes
9. Peer counseling
10. Youth fellowship classes, so that youth are exposed to positive activities

An important part of these programs may be the partnership with teams of youth to accomplish projects. These can overlap into the provision of services to the community. Additionally, mentors in the model of teaming an adult with a youth are very successful. Mentors should be viewed as fulfilling the role of an adult advisor much as an aunt or uncle and can supplement ongoing support.

E. Protective Orders

Protective orders are designed to keep youth away from person(s), places, and activities. They require that the youth refrain from any contact in a very particular manner. They may allow for some contact under a supervised situation, for example, therapeutic contact with a parent. Protective orders may also be used to keep others from contacting the youth, if the youth is being harassed or otherwise disturbed in an unlawful manner.

These orders are generally for a limited duration and are very specific, often stating the required distance between the youth and persons or places. They are sought for the purpose of protection of the youth or protection from the youth, and can be reviewed by the court for changed circumstances. Violations of these orders are often considered separate criminal offenses. Protective orders should be used wisely and uniformly adhered to so that further criminal involvement is avoided.

F. Conclusion

The "parts" described are required to operate an effective and responsive juvenile justice system. The tribal court must share the responsibility to oversee the development of the system and to ensure that its staff’s vision, mission, and competency meet the demands of this youth-focused and necessarily collaborative and integrated system.

Chapter 4: Offenses Discussion

[4.1] Introduction

Earlier chapters have reviewed the preliminary considerations a team needs to work through before adopting a juvenile code or undertaking revisions/updates for a code. Once the decision has been made to move forward with the project, the actual drafting can occur. The code must consider designating some or all of the following categories of youth behavior as prohibited behavior:

1. Criminal behavior—society (tribal and nontribal) basically agrees on the definition of many crimes and has deemed certain actions to be criminal in nature, for example, assault, battery, robbery, burglary, hunting, and fishing.

Please see Chapter 8: Transfer to Tribal Criminal Court or Other Jurisdiction.

2. Status offenses—those offenses that, if committed by an adult, would not be a crime, for example, driving under age, possession of firearms, and truancy.

Please see Chapter 23: Nondelinquency Proceedings—Stand-alone Status Offenses.

3. Any behavior or offenses particular to a given community that could involve regalia or cultural offenses.

A fourth category of behavior may be considered to be a red flag warranting some juvenile justice system involvement, as opposed to prohibited behavior. This category would include behavior indicating that a youth and his family are in need of services (a.k.a. FINS). That particular behavior does not rise to the level of criminal behavior, including but not limited to the commission of defined status offenses.

Please see Chapter 7: Juvenile Offenses; Chapter 21: Status Offenses/Family in Need of Services (FINS): Nondelinquency Proceedings General.

Additionally, another class of offenses must be considered or acknowledged by the juvenile code. Those include the management of sex offenders in Indian country. Youth and adult offenders, as well as youth and adults with histories of victimizing children and adolescents, must be accounted for in any scheme of laws seeking to protect the community. Protected areas or zones are increasingly being considered as a management tool for law enforcement. Management and treatment of sex offenders (either youth or adult) are very complex topics. These topics cannot be fully addressed here, but they are of extreme importance. Further, any offense that can result in a designation of "sex offender" for a youth, requiring sex offender registration, must be carefully administered. Definition of these offenses is a serious issue, especially for the purposes of work with juveniles. Any youth conduct that would be deemed a sex offense requiring registration must be seriously studied. This is an area of evolving knowledge. Criminal, mental health, and treatment experts must be consulted when a tribe is considering criminalizing juvenile sexual behavior.

[4.2] Incorporation of Criminal Code(s)

Drafters may look to neighboring tribal, state, and federal juvenile laws. It will be important to keep in mind the previous discussions regarding tribal, federal, and state jurisdiction; characterizations of misdemeanors versus felonies; the actual consequence possibilities under the federal law through ICRA and Oliphant with current TLOA amendments and recent Violence Against Women Act (VAWA) 2013 amendments; and existing treatment or other facility limitations. Foreign codes will offer definitions of offenses (the necessary elements that make up each crime); outline proof required; often identify graduated offenses (e.g., theft from petty to grand as determined by amount of loss); and have an established statutory scheme that has the advantage of prolonged, and thus tested, usage.

Please see Chapter 9: Relations with Other Agencies and Courts.

About the Tribal Law & Order Act and the Violence Against Women Act 2013

The U.S. Supreme Court in Oliphant v. Suquamish Indian Tribe, 15 U.S. 191, 208 held that tribal sovereignty does not extend to the exercise of criminal jurisdiction over a non-Indian for crimes committed in Indian country.

However, on July 29, 2010, Congress passed the Tribal Law & Order Act ("TLOA") that enhanced the tribes’ authority to prosecute and punish criminals. However, tribes are required to provide certain due process requirements. For further information, please see:

• United States Department of Justice, Tribal Law and Order Act.
• National Congress of American Indians, Tribal Law & Order Resource Center.

Further, the VAWA 2013 reauthorization recognized tribes’ inherent authority to criminally prosecute non-Indians for the crimes of domestic violence, dating violence, and the violation of protection orders. However, in order for tribes to utilize this criminal jurisdiction, tribes must provide certain enumerated due process protections, including most of the protections required in TLOA. For further information, please see:

• Tribal Law & Policy Institute, The Violence Against Women Act – Title IX: Safety for Indian Women.
• United States Department of Justice, Violence Against Women Act (VAWA) Reauthorization 2013.
• United States Department of Justice, VAWA 2013 Pilot Project.
• National Indigenous Women’s Resource Center.

Most state juvenile laws also have a full listing and definitions of status offenses. The important concept to remember is that as aggravating as the conduct underlying these offenses may be, this conduct is not generally criminal in nature, but is more reflective of immaturity and lack of supervision, and/or representative of underlying treatable concerns.

Given current research and findings regarding the human brain, we now know that much of this conduct is characteristic of a normal phase in adolescent brain development. Punishments and consequences that do not consider why youth are engaging in negative conduct are not likely to further therapeutic outcomes that change the behavior. If the negative behavior continues it can be a precursor to more serious negative or criminal behavior. Parental involvement or parental figure involvement, if available, is often able with support to address negative behaviors. It is important that the "system" have an understanding of the developmental phases of children, adolescents, and young adults. Blaming as opposed to problem solving is generally counterproductive for this group of youth "offenders."

Please see Chapter 7: Juvenile Offenses.

Drafters also need to look to other identified local concerns. These concerns might include issues like elder or vulnerable (developmentally or otherwise vulnerable) youth/adult abuse, issues related to the need for restraining orders in dating relationships, or youth who are parents. Decisions will need to be made as to which court/docket/calendar should handle various types of needs or misconduct. For instance, are youth/underage parents more properly heard in juvenile court? Or should all juvenile matters be determined by family court? Certain or repeated violations of restraining orders can be determined to be criminal in nature.

Charging decisions can become very significant, that is why in earlier chapters the issue of determining a consistent philosophy and a team approach is recommended. How an incident is petitioned or charged will determine the approach taken by the system, the consequences or alternatives available, and the support accessible to the youth and/or their family. Additionally, drafters need to be aware of "stealth" consequences, for example, eviction if a youth is found to be in public housing with illegal drugs. This consequence is serious for not just the youth but also the entire family, and it might be more appropriate and/or helpful to find another approach to resolution of a perceived problem of a family’s youthful members.

The penalty portion of the juvenile code must reflect value decisions about what target populations should be subject to such penalties in terms of age, gender, conduct, youth needs, and available resources, the jurisdictional limitations and/or availability of negotiated agreements with neighboring local, state, and federal governments, and the actual availability of tribal community resources. Depending on the overriding philosophy of the code it is important to build into the consequences not just "punishment" but also redemption possibilities, so that youth can be restored not just to their family but to their community. This includes an understanding of the citizenship requirements of their Indian nation. An aspect of punishment/consequences not generally available to non-Indian communities (other than proscribed stay-away orders) is the possibility of banishment for tribal member youth or expulsion for nontribal youth who commit certain offenses or become a danger to the community. Either of these can be for specific periods of time. Banishment should be considered ONLY as a consequence of last resort as it is for all intents and purposes the most severe sanction available to tribal nations.

[4.3] Offenses Particular to a Certain Tribal Community

These offenses can include certain archaeological site disturbances, including cemetery disturbances, which may or may not be defined as criminal behavior in nontribal settings. Even if they are defined in the nontribal setting, it is important to put a distinctive tribal perspective to any such crime. That could be in the enhancing of a crime; for instance, stealing from a dance camp would have an additional penalty not just related to the amount of loss, requiring a culturally appropriate settlement. There should be certain offenses that require a distinctive resolution that are not just general criminal redress. Each community needs to determine those offenses. Nonmembers should not define them.

The same can be true of the destruction of community resources (this can include natural resources and such things as school sites that benefit tribal children) including cultural resources. In all likelihood they have a certain monetary value but the shared value of community resource also needs to be addressed. For instance vandalizing a cultural site, including a currently used site should be considered a "criminal" offense and a cultural offense. The code would ideally list the consequences in a dual fashion so that the offender would be required to address both aspects of the offense. This is a method of bringing a philosophy into the tribal criminal court in an attempt to develop a real understanding that community must be addressed. This is victim representation not just at the individual level but also at the community level. It is meant to specifically foster responsible tribal citizenship.

It is important to hold on to the concept that if tribal communities want different results than those achieved by nontribal communities they must conduct their business in a different and tribally unique fashion. They should not mirror the system about which they have serious ongoing concerns. This is a critical component that, if addressed, could bring a tribe’s juvenile justice system into alignment with their tribal values.

[4.4] Sex Offender Registration and Notification Act in Indian Country

The Sex Offender Registration and Notification Act [11] (SORNA) also applies to tribal juvenile justice systems. The tribe needs to have a comprehensive approach that is a tribally "global/all encompassing" approach to youth sex offenders. How and where the provisions of this act are referenced or addressed in tribal law is a local issue, but any juvenile code should recognize the outstanding issues as related to youth. SORNA provides a comprehensive set of minimum standards for sex offender registration and notification in the United States. SORNA aims to close potential gaps and loopholes that existed under prior law and to generally strengthen the nationwide network of sex offender registration and notification programs.

SORNA also recognizes tribal court convictions. Section 127 of SORNA attempts to track the existing jurisdictional framework on Indian lands, but does so in a way that grossly oversimplifies the complex distribution of authorities. SORNA recognizes two classes of tribes: (1) those subject to PL 280 jurisdiction in the six mandatory PL 280 states (Minnesota, Wisconsin, California, Nebraska, Oregon, and Alaska) and (2) all other tribes. For tribes in the first category, authority and responsibility to implement SORNA on Indian lands was automatically delegated to the state in which the tribal lands are located. Tribes in the second category include those tribes subject to PL 280 jurisdiction but that are located within the voluntary PL 280 states, and where they were given one year to pass a resolution "elect[ing] to carry out [SORNA] as a jurisdiction subject to its provisions."[12] Those tribes that failed to enact a resolution before the deadline joined the mandatory PL 280 tribes in the first category, and all responsibility to implement the SORNA requirements on tribal lands was delegated to the state.

Of the 562 federally recognized Indian tribes in the United States in 2006, 211 were eligible to make an election under Section 127 of SORNA. The Department of Justice reported that, as of 2006 198 of the eligible tribes passed a resolution expressing their intention to comply with the SORNA mandates. An additional five tribes passed resolutions delegating their responsibilities under the act to the states in which the tribes’ lands are located. A number of Indian tribes in mandatory PL 280 jurisdictions, while expressly excluded from making an election under Section 127, passed resolutions stating their intention to comply with the law and expressing their opposition to the delegation of their authority to the state. Although Section 127 included a stringent deadline for tribes to elect to comply with the SORNA mandates, the law also acknowledged that any tribe that has made a Section 127 election may change its mind at any time and the responsibility for implementing SORNA on tribal lands will immediately fall to the state.

This is a developing area of law in Indian country. Unfortunately, Indian country has been the repeated hunting grounds for perpetrators with histories of victimizing, both in modern times and in prior eras. It is important that Indian communities implement policies that address these issues. It is of equal importance that in so doing particular attention be paid to the need to label individuals as sex offenders only when justified by their actions and the communities’ right to protection.

[4.5] Conclusion

The offenses/consequences established by a team will create the environment in which their community addresses youth who are not being successfully managed by themselves or their families. It is important that this management happen in a fashion that is value consistent with the community and that the practices of this system truly represent the values of each community. Similarly, it is important to keep in mind youth brain development and how it factors into offense definitions and appropriate consequences. The long-term impact of failing to intervene or intervening inappropriately is harm to our youth, their individual success, and the future welfare of the tribe and tribal community.

Part II: Workbook

The workbook portion of this resource is designed to be used by a group of people including tribal and justice system leaders and personnel, representatives from service agencies, community members, and representatives of youth and their families who are interested in developing or revising a tribal juvenile code. Please refer to Part I of this resource to identify key community members that might be included in this group (Chapter 1, section 1.7, “How to Organize to Create a Juvenile Code”). Part II, the workbook, is designed to be used by both individuals and groups as a starting point for value and policy discussions, system planning and design, and the drafting of specific provisions on identified subtopics.

Code development is often considered a boring, dry matter, but selecting the key provisions that appear in most juvenile codes and looking at options will stimulate discussion on the provisions your community really needs and wants and the provisions that support your cultural beliefs about youth and family. A tribal juvenile code should reinforce community values and set out the structure and process for your juvenile justice system. Further, developing or revising a juvenile code will force a hard look at your existing juvenile justice system, including educational, therapeutic, and cultural services, programs, and activities, whether they are located in or near the community, or are a part of the existing tribal court and/or its affiliates.

Each chapter in Part II leads the group to make decisions that will affect the final structure and provisions of the tribal juvenile code. While this resource is not designed to serve as a template for the drafting of a juvenile code word for word, it should be used to help your group identify your community’s priority needs, values, and policy preferences relative to the selected provisions of a juvenile code. Once these decisions are made, they may be communicated to an attorney or someone with legal training to help in drafting the final code. The group should always review the attorney’s draft to ensure that it follows the groups’ wishes.

Each chapter of the workbook takes a key section of the juvenile code and provides:

• Overview: An overview of the code section.
• Model and Tribal Code Examples: Examples of juvenile code sections from other tribes or in some cases model codes.
• Tribal Code Commentary: A brief explanation of the code examples.
• Exercises: A series of questions that ask your group to evaluate your current situation, discuss key provisions, and record your decisions.

To assist your group in identifying which "key sections" to focus on, we provide a bird’seye view of the possible, known juvenile justice system components in the following text, with a corresponding table of relevant provisions to work on. We provide this aid with the caveat that each tribal community will innovate as they see fit. You will find a diagram mapping a hypothetical tribal juvenile justice system. It has the resources to develop all its possible areas, from the school assessment and disciplinary process to a teen court, to the juvenile court and/or juvenile wellness court, and including referrals, diversions, and dispositions. The Teen Court Program is designated as Area 1. The Juvenile Court is designated as Area 2. The Juvenile Wellness Court is designated as Area 3. Finally, the popular (in tribal circles) Referrals, Diversions, and Dispositions are designated as Area 4. Each area corresponds to the required statutory provisions in the tables following the diagram, and to the chapters in the workbook. Review the diagram, determine where your group wishes to focus its juvenile law development or reform efforts, identify which area or areas you wish to develop or reform, and review the corresponding chapters in the workbook. For best results, work with your group to complete and document your answers/decisions with respect to the exercises at the end of each chapter.

Possibilities for Juvenile Justice Systems

Please note that most tribes will need to develop or reform the foundation of their juvenile justices system—their Juvenile Court in Area 2, before going on to add the desired special dockets (e.g., Wellness Court in Area 3) or desired referrals, diversions, and dispositions. A Teen Court in Area 1 and Peacemaking and Circle Process in Area 4 may take the form of either a special docket or a diversion program, depending upon how it is set up.

In our review of the approximately thirty publicly available tribal juvenile codes, we have identified numerous important deficits with respect to the Juvenile Court in Area 2 (and that may impact the other areas), including codes that:

• Lump child maltreatment and juvenile delinquency laws together;
• Lump both juvenile "crimes" and status offenses together;
• Are heavy on punishment of juvenile and status offenders;
• Are light on protecting and fostering youth, including treatment, habilitation, and rehabilitation;
• Allow for transfer to adult criminal court;
• Apply the juvenile delinquency court process, including the use of probation and "sentencing" to secure detention, to status offenders;
• Lack multiple referral and/or diversion provisions (e.g., informal resolution, consent decree, and courtordered diversion);
• Lack comprehensive case management, treatment planning, and implementation that involve the family as part of the juvenile court process;
• Lack diversion dockets (e.g., wellness court) and/or programs (e.g., mediation, peacemaking, and circle process);
• Fast track youth to secure juvenile detention facilities through
  • Use of inadmissible confessions (out-of-court statements),
  • Use of involuntary or unintelligent admissions in court ("guilty pleas"), and/or
  • Use of criminal contempt of court for probation violations (can turn a status offense into a crime); Apply lower, civil, standards of proof of an offense, as opposed to proof beyond a reasonable doubt; Fail to provide youth with basic "juvenile" civil rights (most of ICRA does not apply to juveniles, except for due process and equal protection); Fail to provide youth with paid for legal counsel; Lack provisions for appropriately identifying and considering trauma in the juvenile court process; Lack provisions protecting against (re)traumatization in the juvenile justice process; and Lack provisions for identifying and integrating local tribal culture, custom, traditions, and/or generally accepted practices.

It is important to recognize that the Juvenile Court in Area 2 provides the foundation for all other innovative dockets, referrals, diversions, and dispositions, for those tribes that choose to retain their coercive sovereign powers over juvenile matters as a last resort, and instead of transferring tribal youth to the federal and state systems. A tribe that chooses to exercise the full range of its sovereign powers will need to commit to reforming Area 2 to ensure therapeutic and fair justice for tribal youth and their families.

Chapter 5: General Provisions of the Juvenile Justice Code

[5.1] Overview

One early decision that you will have to make is how to combine your draft laws by topic. Many contemporary tribal codes conflate the tribe’s dependency process (addressing child maltreatment) with its delinquency process (addressing juvenile and status offenses). We recommend that tribes design separate processes and draft independent statutes (codes) for the following reasons:

• The purposes of the two laws are different (child protection versus rehabilitating adolescents and holding them accountable).
• Juvenile delinquency adjudications (trials) require more stringent requirements (with statutory reinforcement of the "Juvenile Rights"—see Chapter 11).
• The required standard of proof for juvenile delinquency adjudications is higher (beyond a reasonable doubt—see Chapter 11 and Chapter12).
• More and specific, tailored, statutory "doors" (using "informal adjustment, consent decrees, and various court orders") are desirable for adolescents and young adults to participate in services, programs, and activities, whether for therapeutic and/or cultural purposes—see Chapter 15, Chapter 17, and Chapter 19.
• The juvenile delinquency dispositions are different and may be more severe thus requiring special protections for youth (restitution, etc. and placement in a secure juvenile detention facility, in addition to placement in the home with protective supervision, kin and foster care placements, and guardianships—see Chapter 20 and Chapter 21).

A second and related decision in designing and drafting your juvenile law is whether to include two separate processes, one for juvenile offenders and one for status offenders (note that family-in-need-of-services [FINS] process is a type of "status offender" process and may be preferred as it prioritizes precourt services to youth and their families). We recommend that tribes design and include both processes in their juvenile law. While the purposes, rights, and doors to services, programs, and activities may be the same, status offenders are treated differently in the following ways for the following reasons (see Chapter 21):

• The disposition options for status offenders are much more limited (legal custody may only be transferred temporarily, e.g., for thirty days).
• Placement outside of home, kin or other responsible adult placements, or foster care is limited to "juvenile shelter facilities" (such as shelters, halfway houses, and group homes—placement in secure juvenile detention facilities and adult penal facilities is prohibited, even with sight and sound separation).
• The disposition orders automatically terminate after a short period of time, for example, thirty days with one possible extension of ninety days.

The thinking behind treating status offenders differently than juvenile offenders is that, given what we now know about adolescent brain development, "status offending" is likely a normal part of growing up, necessitating guidance and assistance, but it does not rise to the level of actionable misconduct in the juvenile justice system, much less the criminal justice system. The statutory limits on applicable dispositions and placements protect status offenders from future juvenile justice or criminal justice system involvement. The harms of such involvement include being labeled as delinquent or a criminal (which negatively affects the youth’s self-concept going forward, e.g., thinking "I am bad" or "I am a criminal"); having a permanent, negative record; and potentially regularizing the youth’s involvement in the juvenile and criminal justice system in the future.

Your juvenile code should contain general provisions that describe the problem to be addressed by the code. If you have researched the problem of juvenile misconduct in your community you may have specific data or conclusions about the problem. This type of information should appear in a Findings section of a code.

A Purposes section of a code explains why your community is adopting this code. It explains what you want to accomplish by adopting the code. You may have several goals or purposes in passing this law.

While there is no requirement that your code include both a Findings and Purposes section, the inclusion of both of these sections can be very helpful in explaining your philosophy toward youth justice and the intent of the law. These sections are also helpful to tribal judges in interpreting the code on a daily basis. If a case is appealed, these sections will likely also be used by the appellate judges in interpreting the code.

[5.2] Model Code Examples
 

[5.4] Tribal Code Commentary

A good number of tribes have used the 1989 BIA Tribal Juvenile Justice Code as a foundation for the drafting of their juvenile codes. The alternative, the University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code was completed and made public in the fall of 2014. At the time of first publication of this resource, tribes had not yet had an opportunity to review and incorporate its provisions. Both of the model codes provide good language and may be relied upon as a template that should then be modified to include tribe-specific findings, purposes, and policies.

The Zuni code recognizes that children are the pueblo’s most important resource. It emphasizes the importance of the cultural and spiritual identity of a child. The stated purpose is to provide guidance to youth consistent with cultural values. It also recognizes the importance of providing community safety and security and keeping a family together. Another goal of the code is to promote intergovernmental cooperation, while recognizing the sovereignty of the Zuni’s to determine what is in the best of interest of Zuni children and families.

The Confederated Salish and Kootenai tribes recognize that the welfare of children is paramount and that each child before their court should receive the care and guidance needed to become responsible adult members of their community. They also recognize the importance of maintaining family ties and strengthening the child’s individual, cultural, and tribal identity. The Policy Section of their code highlights the importance of customs and traditions and states that they will be incorporated into the code to the greatest extent possible.

The Sault Ste. Marie Tribal Code requires the court provide services to care for the mental and physical needs of children before the juvenile court. The code specifically mentions alcohol abuse as a preventable and treatable disease, a common problem in delinquency cases. The code intends to remove the consequences of criminal behavior from a juvenile, and instead provide supervision, care, and rehabilitation consistent with the safety concerns of the community. The juvenile court is also a forum for tribal children adjudicated delinquent in other jurisdictions and referred to the Sault Ste. Marie Nation for adjudication and disposition.

The Eastern Band of Cherokee has set up a juvenile system designed to divert children from the court system. During intake the children are diverted to appropriate services. Keeping children in their homes and receiving help through community-based services is their goal. Juveniles’ and their parents’ constitutional rights are protected in their juvenile system. The juvenile system focuses on the strength and weaknesses of the child and family with a view toward protecting the public.

Note that most contemporary tribal juvenile codes do not, but should distinguish between children (ages 0–10), adolescents (ages 11–17), and young adults (ages 18–25). These distinctions are desirable given current research on the development of the human brain and adolescents. For purposes of tribal juvenile code development, the research findings implicate the jurisdiction of the juvenile court (as opposed to the dependency or criminal court—children should be handled by the dependency court, and even young adults, on a case-by-case basis, should be handled by the juvenile court); the definition of status offenses versus juvenile offenses; when, if ever, an adolescent should be transferred to adult criminal court; when, if ever, a young adult should be subject to the mitigated punishment and dispositional jurisdiction of the juvenile, as opposed to the criminal court, and so forth; and the types of educational, therapeutic, and cultural services, programs, and activities that are best suited to each age group.

[5.5] Exercises

The following exercises are meant to guide you in writing the findings and purposes section of the tribal juvenile code.

• Make a list of the challenges that youth face in your community. Describe the current tribal, state, and/or federal system(s) for dealing with youth misconduct in your community (if you can, flow chart what happens)
  • How is truancy handled?
  • How is alcohol or drug use handled?
  • How is physical assault handled?
• Discuss the guiding philosophy/values that you want for your juvenile justice system and code
  • Habilitation and rehabilitation (helping youth grow and heal)?
  • Restorative justice (requiring youth to repair harm done)?
  • Punishment/retribution (punishing youth)?
  • Accountability (holding youth accountable for their conduct)?
  • Public safety (protecting the public from youth misconduct/harms)?

Read and Discuss*

Are any of these national findings, related to Native juvenile delinquency, true in your community? Are there other findings in your community?

National findings:

• Most delinquent acts by Native youth are low-level offenses, many involving alcohol.
• Native youth receive disproportionally severe sanctions for delinquent acts, such as confinement or transfer to adult justice systems.
• There are inadequate law enforcement resources in Indian country.
• State and federal systems lack cultural competence and fail to attend to Native youths’ needs.
• There is an overreliance on incarceration of Native youth.
• There is a lack of support and resources for tribal justice systems.
• Forty-four percent of the Native population is under twenty-five.
• Native youth are twice as likely as white youth and three times as likely as minority youth to commit suicide.
• Gangs are becoming common in Indian country.
• Native youth suffer disproportionally from risk factors leading to delinquency: poor health, poverty, low education attainment, violence, depression, and substance abuse.
• Native youth are overrepresented in the federal and state juvenile justice systems.

* Taken from Neelum Arya and Addie Rolnick, "A Tangled Web of Justice, American Indian and Alaska Native Youth in Federal, State, and Tribal Justice Systems," Policy Brief, Race and Ethnicity Series, Volume 1.

Chapter 6: Subject Matter Jurisdiction

[6.1] Overview

The tribe shares jurisdiction (concurrent jurisdiction) in many juvenile cases with the federal and/or state government. All tribal codes have a general provision on jurisdiction describing the tribe’s general jurisdictional powers. Additionally, tribal juvenile codes have their own section on jurisdiction. This section sets out the extent of the juvenile court’s jurisdiction, describing when it has the power to act, the power over what persons, and what it has the power to do. This is known as juvenile court "subject matter jurisdiction."

In your juvenile code the jurisdiction section should refer to definitions in your juvenile code’s definition section. In most tribal juvenile codes the definition section fleshes out the juvenile court’s subject matter jurisdiction—its "power over what types of persons." Sample sections are included in this resource.

Many contemporary tribal juvenile courts and their laws will reference and apply offenses defined in the tribe’s criminal code to youth. These may include additional status offenses. Status offenses are acts that are illegal because of the age of the youth. Common status offenses include truancy or running away. Status offenses cannot be adequately or fairly dealt with by looking at the youth in isolation, but rather the court may need to deal with the family. Some codes thus term status offenses as "family in need of services" or "family in conflict" and give the juvenile court jurisdiction over the parents or guardians of the youth, as well as the youth. Juvenile courts in general in recent years have narrowed the number of status offenses they handle and some have even eliminated them. See Chapter 7, Chapter 21, and Chapter 23 for the definitions of juvenile offenses, FINS, and status offenses.

[6.3] Tribal Code Examples
 

[6.4] Tribal Code Commentary

A good number of tribes have used the 1989 BIA Tribal Juvenile Justice Code as a starting point for their juvenile code structure and jurisdiction provisions. The alternative, the University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code was completed and released in the fall of 2014. At the time of the first publication of this resource, no tribes had yet reviewed the University of Washington model code. Both model codes provide comprehensive and useful templates for tribal juvenile codes.

The Sault Ste. Marie Tribe calls their juvenile court a juvenile division. The division has exclusive and original jurisdiction over an Indian child alleged to be a juvenile offender (unless the division transfers the child to adult court) and over a juvenile alleged to have committed a status offense, alcohol drug offense, curfew, or compulsory school offense. Exclusive and original jurisdiction means the division would be the first and only division of the tribal court to handle the juvenile cases.

Sault Ste. Marie defines a child as person under the age of seventeen. It refers to an "Indian child" in the jurisdiction section, but does not define Indian child in the code. It does define tribal child as one who is a member or is a child of a member, or a child living on tribal land. The term tribal child is used throughout the code.

The section then defines tribal land. The tribal code gives jurisdiction over an alleged child offender even if the child is not a tribal member, but lives on tribal land. Juvenile offender and status offender are also both necessary definitions to understand the extent of the juvenile division’s jurisdiction.

The tribes of the Flathead Indian Reservation call their juvenile court the Confederated Salish and Kootenai Tribal Youth Court. The court has original and exclusive jurisdiction over an Indian youth alleged to be a "youth offender" or "youth in need of supervision."

An Indian youth is defined as a child less than eighteen years of age who is a child of Indian descent, either enrolled, eligible for enrollment, or a descendant of an enrolled member and has significant contacts with the community and identification with an Indian community.

A youth offender is defined in the code’s definitions section as one who commits either a youth offense or a status offense. A "youth in need of supervision" is one that commits a status offense, such as one who violates curfew, consumes alcohol or drugs, fails to comply with parental rules, or is a runaway. The court may transfer jurisdiction over the youth to the adult tribal court under certain circumstances. The section also notes that it does not have jurisdiction over traffic or game violations.

The Zuni Tribe’s Children’s Court has jurisdiction over minors, defined as children less than eighteen years of age, actions brought under the Children’s Code for an alleged delinquent act or child in need of care proceeding. An act committed by a child, which if committed by an adult would be designated as a crime under the Zuni Criminal Code or the laws of the state of New Mexico, is a "delinquent act." The term delinquent act includes the possession or consumption of alcohol by a minor. Status offenses are not considered delinquent acts, but rather justify a proceeding for "a minor in need of care."

The Zuni tribal court has concurrent jurisdiction over a minor who commits a delinquent act in a state jurisdiction, but is a resident. Zuni has a Healing to Wellness Court and other alternate dispute-resolution options that fall under the juvenile court jurisdiction.

The Eastern Band of Cherokee makes it clear that it not only has jurisdiction over the proceedings and the minor, but also the parents or guardians of the minor. Because most rehabilitative proceedings require the cooperation of the parents, this provides additional power to enforce a juvenile court order. The Eastern Band of Cherokee has also placed a minimum age requirement of six years of age. A delinquent child at sixteen years of age will no longer be appearing in juvenile court for acts after the age of sixteen, although subject to the court until eighteen if involved with the juvenile court before sixteen years of age.

Note again that most contemporary tribal juvenile codes do not, but should, distinguish between children (ages 0–10), adolescents (ages 11–17), and young adults (ages 18–25) to conform with the current research and findings on the development of the human brain. These findings implicate the jurisdiction of the juvenile court. Children should be handled by the dependency court, adolescents should be handled by the juvenile court, and even young adults, on a case-by-case basis, should be handled by the juvenile court. These findings also implicate a reconsideration of what should be considered a juvenile offense versus what should be considered a status offense or misconduct warranting intervention by the juvenile justice system through its FINS process.

[6.5] Exercises

The following exercises are meant to guide you in developing a jurisdiction section for your juvenile code that meets the needs and concerns of youth in your community.

• Find and examine your tribe’s general jurisdiction code provision (it may be located in your constitution and/or your judicial or court establishment code)—who comes within the tribe’s jurisdiction?
• Find and examine your tribal court’s subject matter jurisdiction code provision for the juvenile court (in your juvenile code)—are there age requirements?
• What types of conduct or circumstances bring youth within the jurisdiction of your juvenile court?
• Make a list of who you want your tribal juvenile court to have jurisdiction over.
  • Members
  • Resident nonmember Natives/Indians
  • Resident non-Natives/Indians
  • What ages?
    • 0–10 "child"
    • 11–17 "adolescent"
    • 18–25 "young adult"
    • Gender?

Do adolescents have the psychological capabilities necessary to function as competent defendants in court?

Should juveniles accused of juvenile or criminal offenses be held to the same standards of blameworthiness as adults and punished in the same way as adult criminals who have committed similar crimes?

How does exposing juveniles to especially punitive sanctions affect their behavior, development, and mental health?

• During the past two decades, policies and practices concerning the treatment of juvenile offenders in the United States became increasingly punitive, as evidenced by the increase in the number of juveniles tried as adults and the expanded use of harsh sanctions within both the juvenile and criminal justice systems.
• This was a break from the traditional model of juvenile justice, which emphasized rehabilitation rather than punishment as its core purpose, that had prevailed for most of the twentieth century.
• Policy makers, practitioners, and mental health professionals need to be familiar with the developmental changes that occur during childhood and adolescence in the capabilities and characteristics that are relevant to their competence to stand trial, their criminal culpability, and their likely response to treatment.
• Brain maturation continues well into adulthood [~25 years of age]—compared to adults, adolescents are more susceptible to peer influence, less oriented to the future, more sensitive to short-term rewards, and more impulsive.
• The research on adolescent brain, cognitive, and psychosocial development supports the view that adolescents are fundamentally different from adults in ways that warrant their different treatment in the justice system.
• An analysis of factors that mitigate criminal responsibility under the law indicates that adolescents are inherently less culpable than are adults and should therefore be punished less severely.
  • In addition, studies of competence to stand trial indicate that those who are under 16 are more likely to be incompetent than are adults, raising questions about the appropriateness of trying younger adolescents in criminal court.
  • Studies of the impact of punitive sanctions on adolescent development and behavior, including prosecuting and sanctioning adolescents as adults, indicate that they do not deter adolescents from breaking the law and may in fact increase recidivism. In contrast, family-based interventions have been shown to be both effective and cost effective.

*Taken from Laurence Steinberg, "Adolescent Development and Juvenile Justice," Annu. Rev. Clin. Psychol. 5 (2009): 47–73.

Chapter 7: Juvenile Offenses

[7.1] Overview

Tribal juvenile codes have their own section on "subject matter jurisdiction." This section acts in a dual capacity, often in conjunction with a definitions section to describe what constitutes a "delinquent act," "juvenile offense," or a "juvenile crime." These categories are to be distinguished from "status offenses" or the conduct giving rise to a Family In Need of Services (FINS). Juvenile offenders are subject to a secure detention sanction whereas status offenders or FINS clients are not. Aside from delimiting tribal power and tribal court adjudicatory jurisdiction, these definitions describe the conduct that will bring a youth and his or her family within both the rehabilitative and punitive power of the tribal government. As such, these definitions should be reflective of actual typical youth misconduct in the region but also known risky behaviors requiring timely intervention given existing resources. Keep in mind that it is now well documented that many states experienced unfounded "moral panics" that fueled punitive statutory reforms in the 1990s and 2000s where youth were viewed as super predators who should be handled by the adult criminal systems. This was bad policy based on misperceptions and unsubstantiated reports of youth crime. In defining your tribe’s "juvenile offenses" use reliable data on the needs of youth in four areas: family problems, mental health, problems with substance use, and youth misconduct. Be sure to include your local treatment providers and youth service providers in the discussion as they will know the circumstances and needs of the youth population. Their perspectives will be invaluable in defining what conduct should trigger tribal government intervention and rehabilitation for youth and their families.

The following facts about adolescents’ development should influence establishment of a juvenile court system focused on habilitation and rehabilitation as opposed to sanction:

1. Teenagers are less competent decision makers than adults. Although capacities for reason and understanding (cognitive abilities) approach adult levels by about age sixteen, evidence suggests they may be less capable than are adults of using these capacities in making real-world choices.
2. Emotional and psychosocial development lags behind cognitive. Adolescents are considerably more susceptible to peer influence than are adults, more likely to focus on immediate rather than long-term consequences, and are more impulsive and subject to mood fluctuations.
3. They are more likely to take risks and probably less skilled in balancing risks and rewards.
4. Personal identity is fluid and unformed in adolescence. This is a period when individuals separate from their parent, experiment (often in risky endeavors), and struggle to figure out who they are [13].

It may be helpful to review Section 2.2: "Philosophical Choices."

[7.4] Tribal Code Commentary

While a good number of tribes have used the 1989 BIA Tribal Juvenile Justice Code as a starting point for their juvenile code structure and jurisdiction provisions, others alter the definition of "juvenile offender" to either include status offenses or to delineate specific juvenile offenses and/or status offenses. The alternative, University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code was completed and released in the fall of 2014. At the time of the first publication of this resource, no tribes had yet reviewed the University of Washington model code. Both model codes provide comprehensive and useful provisions for tribal juvenile codes.

The tribal statutes highlighted offer three different approaches in defining juvenile offenses. The first is to define juvenile offenses by reference to an existing criminal statute or statutes. For example, the Eastern Band of Cherokee provisions define a "delinquent juvenile" as a person who is less than sixteen years of age who has committed a criminal offense under tribal or federal laws, including violations of motor vehicle laws. The second approach is to adopt a tribal criminal code but to carve out a set of juvenile offenses separate from the adult crimes. See, for example, the Klamath Criminal Code, which has a separate section entitled "Juvenile Offenses" where it defines two crimes—"Juvenile in Possession of Alcohol or Tobacco" and "Firearms." A third approach is to set out a list of juvenile offenses in the tribal juvenile court law. See the Native Village of Barrow’s Code, which divides twenty-two delinquent acts into four categories and defines them—acts harming people or animals, acts against public order, acts against property, and acts dealing with alcohol and controlled substances. Whichever approach is used, it is important to craft specific provisions targeted at youth behavior and to understand the purpose for crafting the provision. Is this intended to be a juvenile offense as opposed to a status offense where youth will be subject to secure detention and potential court supervision until they turn eighteen? Does the defined behavior capture risk factors identifying youth who need certain available therapeutic interventions? Do we prefer to establish a juvenile court system that handles only status offenders or that will use only a Family In Need of Services (FINS) process (where there will be no secure detention, there will be limited durations for tribal court supervision, and there will be a heavy focus on family habilitation/ rehabilitation)?

[7.5] Exercises

The following exercises are meant to guide you in developing a juvenile offense section for your juvenile code that meets the needs and concerns of youth in your community.

• Find and examine your juvenile code’s section defining "delinquent act," "juvenile offense," or "juvenile crime"—what misconduct is targeted?
• Does your juvenile code include "status offenses" (conduct or misconduct that is not criminal and that may only be committed by a minor, e.g., truancy, curfew violations, running away, and possession and use of tobacco/inhalants)?
• Find and examine your juvenile code’s "disposition" section—does your juvenile code treat juvenile offenders and status offenders the same?

Make a list of the juvenile offenses you wish to target.

Read and Discuss*

What are the common youth "crimes"?

Top 25 Crimes, Offenses and Violations Referred to Youth Justice Diversion Programs

1. Theft/Larceny—Typical Cases: Shoplifting, Stealing a Bicycle, Stealing from Backpacks and Lockers
2. Vandalism—Typical Cases: Tagging and Graffiti, Drawing on Public Restroom Walls, Keying a Car and Cutting Auto Tires
3. Alcohol Offenses—Typical Cases: Underage Purchase or Possession, Underage Consumption of Alcohol, Providing Alcohol to Underage Persons, Possessing an Open Container in Public/Car
4. Disorderly Conduct—Typical Cases: Fighting in a Public Place, Cursing at a Teacher, Flashing, Mooning and Indecent Exposure
5. Simple Assault or Battery—Typical Cases: Bullying When It Amounts to Assault, Child/Parent Physical Disagreements, Shoving or Pushing a Person
6. Possession of Marijuana—Typical Cases: Possessing Small Amounts of Marijuana, Smoking Marijuana in a Public Place
7. Tobacco Offenses—Typical Cases: Illegally Purchasing Tobacco, Chewing or Smoking Tobacco at School, Providing or Enabling Youth to Use Tobacco
8. Curfew Violations—Typical Cases: Sneaking Out of Home after Curfew, Walking Home after Curfew, Violating a Park Curfew
9. School Disciplinary Offense—Typical Cases: Disrupting Class, Food Fights and Cheating, Violating the Dress Code
10. Traffic Violations—Typical Cases: Speeding or Failing to Yield, Not Wearing a Seat Belt, Riding in the Back of a Pickup Truck
11. Truancy—Typical Cases: Cutting Class, Having Excessive Tardies, Violating Court Order to Attend School
12. Criminal Trespass—Typical Cases: Entering a Vacant Building, Entering Land or a Dwelling without Permission, Returning to a Store after Being Banned
13. Mischief/Criminal Nuisance—Typical Cases: Damaging a Mailbox, Egging or Toilet-papering a House, Picking Flowers in a Restricted or Private Area
14. Possession of Drug Paraphernalia—Typical Cases: Having a Pipe in Pocket with Resin, Using Drug Paraphernalia to Use a Controlled Substance, Possessing Drug Paraphernalia to Grow Marijuana
15. Harassment—Typical Cases: Bullying, Making Telephone Calls without Good Reason, Insulting or Taunting Another Person to Provoke a Disorderly Response
16. Fraud—Typical Cases: Writing Bad Checks, Impersonating Another Person, Committing Fraud Via E-Mail
17. Burglary—Typical Cases: Enter Friends or Relatives Homes to Steal Something, Entering a School Building to Steal Something, Entering a Home/School and Causing Damage
18. False Reporting—Typical Cases: Pulling a Fire Alarm, Calling in False 911 Calls, Calling in a Bomb Threat
19. Loitering—Typical Cases: Hanging Out in a Group in Front of a Building, Smoking in Groups on the Street Corner, Being in a Park or Store after Closing
20. Possession of Stolen Property—Typical Cases: Having a Bicycle You Know Is Stolen, Receiving Stolen Goods from a Friend, Being in the Company of Someone Who Is Stealing
21. Possession of a Weapon—Typical Cases: Unlawfully Possessing Pepper Spray, Possessing a BB or Pellet Gun While Underage, Carrying Weapons Like Metal Knuckles or Nunchucks
22. Reckless Endangerment—Typical Cases: Throwing Snowballs at Cars, Hanging on to a Moving Car, Speeding Out of a Parking Lot
23. Resisting an Officer without Violence—Typical Cases: Lying to a Police Officer, Including One’s Age, Running Away from Law Enforcement, Refusing to Move When Ordered by an Officer
24. Runaways—Typical Cases: Running Away from a Noncustodial Parents House, Going to Another City/State When Forbidden by a Parent, Staying at a Friend or Families House without Parent Permission
25. Unauthorized Use of a Motor Vehicle—Typical Cases: Driving without a License, Unlawfully Using All-Terrain Vehicles (ATVs), Taking Parents or Friends Car without Permission

Taken from Global Youth Justice, Top 25 .Youth Crimes.

Chapter 8: Transfer to Tribal Criminal Court [Or Other Jurisdictions]

[8.1] Overview

Under some limited circumstance your tribe may feel that certain cases involving youth should be handled by the tribal criminal court, where the youth is treated as an adult. Common candidates for transfer include older adolescents who have not been responsive to past juvenile court supervision and who commit serious crimes. A tribe may want to balance the concerns for public safety with the recognition of immaturity of adolescents as a mitigating factor in the crime. Generally, a youth transferred and convicted in a criminal court will have a criminal record and may be subject to longer sentences and incarceration in a prison.

At times the federal government or state government may seek to prosecute a youth as an adult in federal or state court. The sentences in tribal juvenile court may not be longer than in tribal criminal court, but sentences in federal or state court can be significantly longer. Often tribal juvenile courts consider whether the juvenile court has the resources to rehabilitate the youth. Once the youth is transferred to tribal criminal court, the tribal juvenile court will no longer have jurisdiction over that case.

Judicial waiver, statutory exclusion, and direct file are three mechanisms used to transfer juvenile offenders to adult criminal court. Generally, juvenile court has original jurisdiction and reviews a particular case to determine whether certain factors established by the code or by precedent have been met and whether the crime and the characteristics of the youth justify adult treatment. If it finds sufficient cause, it will waive juvenile court jurisdiction.

However, some state and tribal laws permit a prosecutor to directly file a case in adult criminal court and then the judge in that court determines at a hearing if the case is an appropriate case for the criminal court. There are also some statutes that legislatively mandate a transfer to adult criminal court for certain crimes. States have increasingly allowed transfer of juveniles to adult criminal courts at lower ages and for more offenses, but tribes should examine their values, customs, and concerns to make these important decisions. Some states have passed "once waived, always waived" statutes, which require that once juvenile court jurisdiction has been waived, it is waived in the future for other offenses committed by the juvenile. This is not recommended, but merely acknowledged.

Some tribes do not have sufficient resources to work with youth offenders with serious problems and may consider transferring a juvenile case to state or federal juvenile jurisdiction if the state/federal system has more resources. The next section describes transfers to state or federal juvenile courts to allow for expanded resources and cooperation with federal or state programs through memorandums of understanding (MOU).

It may be helpful to review Chapter 4: Offenses Discussion.

[8.4] Tribal Code Commentary

We note that a good number of tribes have used the 1989 BIA Tribal Juvenile Justice Code transfer provisions as a starting point. The 1989 BIA Tribal Juvenile Justice Code transfer language includes clear standards and fair process for tribal judges to use in determining whether or not to transfer a case out of the tribal juvenile court and into a tribal adult criminal court (or, potentially with modifications, to a state or federal court). However, there is growing concern among juvenile justice advocates and legal scholars nationally that such transfer provisions are unwarranted by the data on youth offending, harmful to youth, and expensive for juvenile justice systems. Consequently, the drafters of the recently completed University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code omitted completely the statutory provisions authorizing transfers from tribal juvenile court to adult criminal courts. However, because each tribe operates in its own unique context given its needs, resources, and priorities, we have provided the comparative statutory provisions and analysis here.

The Sault Ste. Marie Tribal Code requires that a transfer petition be filed in the juvenile division by the prosecutor and that a hearing be held within ten days of receipt of the petition. Notice to the child and the child’s parent/guardian is required at least three days before the hearing. This is an example of the judicial waiver method of transfer. The only difference between Sault Ste. Marie and the 1989 BIA Tribal Juvenile Justice Code on this point is that the 1989 BIA Tribal Juvenile Justice Code allows any officer of the court to file a petition for transfer.

The factors considered at the transfer hearing are the nature and seriousness of the offense and the child’s condition and past record. A child must be at least fifteen years of age to be transferred under Sault Ste. Marie’s statute, while the 1989 BIA Tribal Juvenile Justice Code has a minimum age of sixteen. The juvenile court may transfer to adult court only if the court finds clear and convincing evidence that there are no reasonable prospects for rehabilitating the child through resources available to the juvenile court and the offense evidenced a pattern of conduct that constitutes a substantial danger to the public. Transfer to an adult court occurs by written order of the juvenile division with the findings and the reasons for transfer. The jurisdiction of the juvenile division is terminated upon transfer. This statute (following the 1989 BIA Tribal Juvenile Justice Code) attempts to keep the child in juvenile court unless the juvenile court simply cannot rehabilitate the child and the child is dangerous. However many tribal courts have a minimum age requirement of sixteen.

The confederated Salish and Kootenai Nation gives the Youth Presenter (similar to a prosecutor) the discretionary authority to file a case in (adult) tribal court, based on input from the probation office. This is an example of the direct file method of transfer. The juvenile officer is required to prepare a written report for the Youth Presenter to consider. The factors the Youth Presenter is required to consider include that the youth must be sixteen years old or older; he or she must have committed a serious crime; and he or she must be a member of a federally recognized tribe. The code defines a "serious crime" as a felony that seriously damages persons or property or involves dangerous drugs. The youth presenter is required to consider the nature and seriousness of the offense; the child’s nature and condition based on age, mental health, and physical condition; and past offenses and contacts with the tribe. The youth has a right to a hearing and a right to understand the consequences of a transfer to tribal criminal court.

The Warm Springs Code requires a motion in juvenile court. The child must be at least sixteen years old, the offense must be a criminal violation, and the child must not be amenable to rehabilitation in facilities or programs available through the juvenile court. The court needs to find that retention of jurisdiction by the juvenile court would not be in the best interest of the juvenile. Warm Springs looks at the nature and seriousness of the offense, but does not require a serious crime; it merely needs to be an adult crime, and not a status offense. The court also looks at the nature and condition of the youth, and the past record and efforts at rehabilitation in making its determination. Because it also must look at the best interests of the youth, there must be some balancing against the negative impact of a criminal conviction for the youth and the inability of the juvenile system to provide rehabilitation programs or facilities for the youth.

In the Zuni Juvenile Court a petition is filed by the prosecutor and a hearing held within ten days. The youth must be at least sixteen years of age and the crime that the youth is alleged to have committed must be a Class A offense or a felony in another jurisdiction. A report is prepared by the juvenile probation officer, which includes information relative to the condition of the youth, the past record, and past rehabilitation efforts. A finding is required on a preponderance of evidence that there is no reasonable prospect for rehabilitation of the youth with the juvenile courts resources and there either exist a pattern of past conduct that constitutes a substantial danger to the public or the offense alleged constitutes a danger to the public. A preponderance of evidence is a low threshold, requiring only a demonstration that it is more likely than not.

Juvenile justice system reformers, in other contexts, argue that status offenders should not be treated as juvenile offenders merely to access services. A similar argument may be made with respect to Native youth who have their cases moved into the state or federal system where the juvenile dispositions and placements are more severe (e.g., placement in a secure detention facility) and/or where the potential to be transferred to adult criminal court are substantially greater.

[8.5] Exercises

The following exercises are meant to guide you in developing the transfer to adult criminal court sections of the tribal juvenile code.

• Find and examine your juvenile code to see if it has provisions for the transfer of youth to adult criminal court—what are the criteria for transfer?
• Make a list of reasons for transferring youth (or letting the following assume jurisdiction) to each of the following:
  • Tribal adult criminal court,
  • State juvenile court,
  • Federal court, and
  • Other tribal courts.
• Make a list of reasons to prohibit transfer to any of the above (or for assuming your juvenile court’s jurisdiction to handle the case).

Read and Discuss*

Does your tribe have concurrent jurisdiction with the federal government?

How does this impact decisions to exercise your tribe’s juvenile court jurisdiction?

In order to better understand the processing of tribal youth cases and the factors involved in cases handled at the federal level, a study team interviewed more than thirty federal and tribal officials familiar with these issues, conducted site visits, and reviewed relevant documents. Key factors and issues identified included the following:

• Many different tribal, federal, state, and local law enforcement agencies may be involved in investigating Indian Country cases. The two federal agencies most often involved in investigations in Indian Country are the Department of Justice’s Federal Bureau of Investigation and the Department of the Interior’s Bureau of Indian Affairs. Tribes also may operate law enforcement agencies with their own criminal investigators. Tribal police are typically the first to respond to an incident and will contact federal law enforcement if the case seems serious enough to constitute a federal crime.
   
• Cases that may warrant federal prosecution are referred to the appropriate U.S. Attorney’s Office, which then elects to accept or decline the case based on several factors. If the federal government decides to proceed with a prosecution, it may prosecute the defendant as a juvenile delinquent or seek to transfer the juvenile to adult status. The decision to prosecute a juvenile case at the federal level is based on a number of considerations. These include the seriousness of the crime, the youth’s age and criminal history, strength of the evidence, and the tribe’s capacity to prosecute and appropriately sentence the offender. While the final decision to prosecute a case federally rests with the U.S. Attorney, tribal preference is also often taken into account. In general, tribal youth cases processed in the federal system tend to be egregious crimes committed by older offenders (those close to the age of majority) with more extensive criminal histories. Importantly, this reflects the types of cases referred to and accepted by federal prosecutors, rather than the underlying pattern of offending by tribal youth. Less serious offenses tend to be handled at the tribal level. Similarly, a number of factors influence whether a juvenile is processed as a juvenile delinquent or transferred to adult status. Federal law specifies the factors that must be considered in determining whether to transfer a case, including the type of offense and the offender’s age, criminal history, and maturity. Relevant factors differ by type of transfer, although cases meeting certain criteria must be transferred. District practice also influences whether a juvenile is transferred to adult status; the prevalence of transfer varies across districts, occurring more frequently in some districts than in others.
   
• Tribal youth cases may be prosecuted in both tribal and federal court. The tribal case may be initiated first and dropped once the federal case begins, or both jurisdictions can pursue the cases to completion.
   
• Federal cases against tribal youth face many processing challenges. These challenges, some of which apply to Indian Country cases generally, include the physical and cultural distances between many reservations and federal actors, as well as the lack of federal detention facilities for juveniles.
   
• The federal justice system is not designed for juveniles, yet it may sometimes be the best option available. A consistent theme that emerged throughout the interviews was that, in both the federal and tribal systems, there is a lack of facilities, programs, and services to address the needs of tribal youth. Facilities for housing juveniles sentenced to detention in the federal system are limited and are often located far from the juvenile’s home and family. Community-based treatment programs available to these youth are also very limited and are rarely located on or near a juvenile’s reservation. Furthermore, these programs may not take into account the beliefs and traditions of the youth’s culture. Although many of the officials (both tribal and federal) we interviewed indicated that the federal justice system is not designed for juveniles, they explained that it is sometimes the best option available. Despite its limitations, the federal system can sometimes access or fund services for juveniles that are unavailable to tribal communities. The federal system is also better able to address serious offenders due to its ability to sentence defendants for longer periods of time, given that the sentencing options available to tribal courts are limited by both federal law and, frequently, a lack of tribal detention facilities. Thus the decision of whether to proceed against a juvenile in the federal or tribal system is often based in part upon the nature and resources of the particular tribal system concerned. The availability of local (tribal) resources and the ability of the federal system to access a wide range of treatment, services, programming, and detention settings were consistently cited by federal and tribal stakeholders as important considerations regarding whether and how to adjudicate an American Indian youth at the federal level.

* Taken from William Adams and Julie Samuels, "Tribal Youth in the Federal System," Final Report (Revised), Urban Policy Institute, May 2011.

Read and Discuss*

Should we be transferring youth to the adult criminal system?

Elizabeth Scott and Laurence Steinberg in the book Rethinking Juvenile Justice believe that a model juvenile justice system should take these three key lessons based on scientific literature on adolescence.

1. Adolescents’ choices to get involved in criminal activity are shaped by developmental forces that contribute to immature judgment, and thus are less culpable than are those of adults.
2. Because of these developmental influences, normal adolescents, particularly those growing up in high-crime neighborhoods, may get involved in criminal activity, but most are likely to mature out of these inclinations.
3. Because social context plays a key role in the accomplishment of essential developmental tasks during adolescence, the correctional settings and interventions that constitute society’s response to juvenile crime will likely affect when delinquent youths make a successful transition to adulthood.

* Taken from Elizabeth Scott and Laurence Steinberg, Rethinking Juvenile Justice, Cambridge, Massachusetts: Harvard University Press (2008).

[9.1] Overview

The tribe’s ability to incarcerate a youth is limited by the Indian Civil Rights Act (ICRA) to one year, although a tribal nation may expand that jurisdiction to three years under the Tribal Law and Order Act (TLOA) of 2010 for certain crimes provided the tribe guarantees certain rights to defendants. There are situations when the federal government may take jurisdiction over some Native youth in Indian country and other situations in which the tribe encourages the federal government to take jurisdiction over certain youth due to their criminal history and seriousness of the crime. A tribe may feel incarceration for a longer period than the one year is necessary to protect the public or to rehabilitate the youth. The federal government may have resources for rehabilitation that are not available to the tribe. The federal government also has the ability to consider whether the youth will be tried in the juvenile system or the adult system based on the crime and background of the juvenile.

In Indian country in Public Law 280 states or similarly legislated states, the state and tribe may have concurrent jurisdiction over juvenile matters in many situations. Even in Indian nations where the federal government is engaged in concurrent jurisdictions, states are involved in off-reservation delinquent activity. The state would also have the ability to incarcerate for more than one year and in some limited cases this may be a suitable and just option. The state would also have the ability to hold a juvenile accountable in an adult court, provided the situation meets the criteria of the state.

The state juvenile or the federal system may have more resources than the tribe and the youth’s needs may be better addressed in the state or federal system. In such a situation the tribe may be encouraging the state or federal government to take action.

There are other situations in which the state, federal system, and tribe may need to work together for the benefit of the child and community. A youth may be involved in an offense outside of Indian country, and the state may believe that the tribe has the most suitable resources to rehabilitate the youth. A tribe may be involved with a youth in the tribal juvenile system, but seek nontribal services.

Coordination and cooperation between all jurisdictions that could address juvenile matters related to members or tribal residents of your jurisdiction ensures that the youth of your community receive the best services available. Statutes providing the authorization to enter into MOUs with other jurisdiction and with nontribal programs will help in providing comprehensive services to the juvenile and the community.

Cooperating with other entities may open up possibilities for grant funds for programs that can benefit tribal youth. Authorization is needed for a juvenile court to enter into a grant with another entity.

Additionally, social services may be involved in many of the juvenile court delinquency or status offenses. Ensuring that the power is given to the juvenile court to access and order action from social service agencies is vital. Depending upon the situation that might be tribal, state, or federal social service agencies.

Treatment or incarceration may also require the juvenile court to enter into agreements with programs that provide services to youth. Ensuring that the juvenile court has the ability to negotiate these agreements is important to their effective operation.

It may be helpful to review Chapter 4: Offenses Discussion.

[9.4] Tribal Code Commentary

The 1989 BIA Tribal Juvenile Justice Code authorizes the juvenile court to cooperate with any federal, state, tribal, public, or private agency to participate in any diversion, rehabilitation, or training program to carry out the purposes of the code. The court may also enter into grants to aide in carrying out this purpose. Only expenditures of funds must be approved by the tribal council. It also is authorized to utilize social service agencies (federal, tribal, or state) and negotiate contracts with agencies on behalf of the tribal council for care and placement of children subject to approval by the tribal council. It may also accept or decline transfers from other states or tribal courts involving cases of alleged delinquent children.

The Sault Ste. Marie Tribal Code also permits acceptance or declination of transfers from other courts and the court is to treat transfers like action commenced in their juvenile court. The remaining sections of their code are similar to the 1989 BIA Tribal Juvenile Justice Code.

The section from the Confederated Salish and Kootenai Nation specifically addresses transfer from their juvenile court to the state court, which is similar to the criteria for transfer to an adult court. However, it specifically focuses on treatment or rehabilitative services available through the state that are not available through the tribe system. The code requires a transfer report specifically addressing each of the criteria required for transfer.

[9.5] Exercises

The following exercises are meant to guide you in developing the relationships with other agencies/governments sections of the tribal juvenile code.

• Find and examine your tribe’s code provisions governing cooperation with other agencies and/or governments—with whom may your juvenile court enter into agreements and for what?
• Find and examine any MOUs or Memorandums of Agreement (MOAs) relevant to your juvenile court—who does it bind and to do what?
• Make a list of agencies and/or governments that you would like to negotiate with for the provision of services—what services?

Chapter 10: Juvenile Court Records

[10.1] Overview

If a community sees youthful indiscretions as normal adolescent behavior and the juvenile court system as one of the communities methods of teaching, rehabilitating, and developing the youth of the community to be the leaders of tomorrow, then it is extremely important to review the impact a juvenile record has on the young people of the community, when they become adults. Will the record need to be reported on college applications, job applications, and rental applications, and be considered for enhanced sentencing when the child is an adult? How will that impact young Native adults?

Many states have moved from completely confidential records with automatic sealing and/or destruction of records upon completion of any probation once the child reaches adulthood to public records and sealing or expungement of some or all records, only on motion of the individual with proof of no criminal activity and completion of any juvenile court sentence, probation, or restitution. Some states will consider a juvenile’s offenses under "three strikes laws," those laws that mandate harsher sentences on repeat offenders.

When considering juvenile records, one must consider both the records kept by the court and the records kept by law enforcement. A tribal nation should review its own customs and norms to determine who within the tribe and family of the juvenile should be involved in a juvenile case and have access to records.

It may be helpful to review Section 2.5 Special Issues: Expungement and Destruction of Juvenile Records.

[10.4] Tribal Code Commentary

The Sault Ste. Marie Code keeps juvenile records confidential, accessible only by the prosecutor, juvenile, the child’s parent/guardian, the child’s counsel, and those law enforcement and "juvenile court personnel actively involved in the case." Both law enforcement and juvenile court records are automatically destroyed at the child’s eighteenth birthday or at the termination of the juvenile disposition order. Any inquiry into a child’s records should be responded to as if no records exist. Obviously the Sault Ste. Marie Nation believes that the retention of records may lead to job discrimination, denial of educational opportunities, and even denial of military service. They allow a juvenile to start fresh when they reach eighteen with no criminal record.

The Eastern Band of Cherokee also keeps juvenile records confidential, only allowing the juvenile, parents, guardians or custodians, and personnel involved in the case to have access to records. However, they do not automatically destroy records when the juvenile reaches the age of eighteen. The Eastern Band of Cherokee require a juvenile to file a petition requesting expunction of the juvenile record. A juvenile who has been adjudged undisciplined may file the petition upon reaching the age of eighteen. The juvenile adjudged delinquent may file a petition for expunction only after waiting two years after the juvenile court had jurisdiction over the juvenile. In either case the juvenile must file an affidavit stating that he has had no further juvenile or criminal convictions, along with affidavits substantiating good character and reputation of the petition by two persons unrelated to the petitioner. The petition is served on the prosecutor, who has ten days to voice any objections to expunction of the records. The judge orders expungement of the records (law enforcement and court) if the offender has not been adjudicated delinquent or convicted of a criminal act in the state or tribe. When the records are expunged, the offender can legally report that he was not arrested or adjudicated delinquent or undisciplined.

The White Mountain Apache Code also ensures confidentiality except for those involved in the proceeding. It instructs the clerk of court to destroy all records of juvenile proceedings when a juvenile reaches the age of eighteen.

[10.5] Exercises

The following exercises are meant to guide you in developing the handling of records section of the tribal juvenile code.

• Find and examine your juvenile code provisions governing the confidentiality and destruction of juvenile and law enforcement records—what are the requirements?
• Make a list of negative consequences for youth given existing law.
• What law changes, if any, would you propose to protect youth?

Points for discussion*

Should tribal juvenile court proceedings and/or records be opened up to a certain extent (e.g., to law enforcement officials, service providers, and/or victims of crime) or to the public?

The National Association of Counsel for Children’s Board of Directors considered the following pros and cons of confidentiality in juvenile delinquency cases . . .

• Opening would impede rehabilitation of juveniles by foreclosing future education/work options
• Opening would deter juveniles from admitting delinquency (a key to the treatment process)
• Opening would cause public stigmatization of the child and family
• Insensitivity in the media about publishing the names of children and families
• Renown in the community (from publicizing the name) could actually reward a child

• Need to punish children, including shame of public knowledge of delinquency
• Need to protect community, allowing them to know who the "dangerous juveniles" are
• Need to ensure that courts and law enforcement officials are basing decisions on complete information
• Lack of system accountability due to confidentiality, allowing system problems to go unaddressed
• Lack of community standards as to what is enough delinquency to warrant incarceration
• Public right of access to government functions, and lack of confidence in "secret" system

• Neither absolute confidentiality nor total opening of juvenile court records and proceedings would be appropriate
• The presumption of confidentiality should remain
• Exception that judges should be allowed, on a case-by-case basis to open up proceedings and records to members of the media, researchers, and others with a bona fide interest in reporting on the juvenile court system and related systems to the public
  • After finding there would be no harm to the child
  • After an opportunity to be heard by the child’s counsel
• Conditioned on keeping the identity of reporters of neglect/abuse, and names/identifying and contact information of children and families not be made public
• Conditioned on judge being allowed to exclude media and observers from child victim/witness testimony and the choice to close all or part of the proceeding
• Identifying records of adjudication of juvenile delinquency should be made available to juvenile and criminal courts and law enforcement officials to ensure appropriate decision making

*Taken from the Policy Statement on the Confidentiality of Juvenile Court Proceedings and Records, National Association of Counsel for Children, April 25, 1998.

What about expanding victim participation in the juvenile justice system?

• Opening the courtroom to victims during juvenile hearings
• Informing victims of adjudicatory proceedings
• Requiring the judge to consider the interests of the victim when deciding to close juvenile proceedings
• Allowing the victims to be present and heard at predisposition or disposition proceedings

• Recent policy initiatives expand access to juvenile records to youth corrections personnel, to courts, and to other agencies, and to school officials
• Some states, in response to a growing number of crimes committed by repeat youth offenders have created a collaborative, systemic approach to information sharing, e.g. the Serious Habitual Offender Comprehensive Action Program (SHOCAP)
  • Facilitates agency collaboration and information sharing to provide sanctions, treatment, and/or interventions

*Taken from "Juvenile Justice Reform Initiatives in the States (1994–1996).

Chapter 11: Rights in Juvenile Proceedings

[11.1] Overview

The early developers of juvenile justice systems in the United States (prior to 1967) intended legal interventions to be civil as opposed to criminal in nature.[14] The idea was to have informal proceedings, without legal procedures and evidentiary standards, which would allow the judge to get a "total picture" of the juvenile and to deal with the problems of the juvenile with prevention, treatment, and rehabilitation. The downside of this informality, as was demonstrated over and over again in the state court systems, was the absence of established guilt: an adjudication of delinquency was based upon the attitude of the child, the types of peers with whom he or she associated, or his or her family’s situation.

Fair hearings and high standards of proof of delinquency in juvenile proceedings have been generally required in state law since 1967 when the U.S. Supreme Court decided In re Gault.[15] In Gault, the U.S. Supreme Court held that due process is required in juvenile court adjudicatory proceedings. Gault requires recognition and enforcement of constitutional rights, the application of certain rules of evidence, and the establishment, beyond a reasonable doubt, that allegations are supported by the admissible evidence. In the state systems, post-Gault, informality is still often permitted in the prehearing stages and generally accepted in the postadjudicatory hearings on disposition.

Tribal laws governing juvenile proceedings may appear to have criminal law characteristics. However, a good number of tribal laws governing juvenile proceedings appear to be civil in nature and may have a provision explicitly stating that they are civil proceedings. If a tribal court’s juvenile proceedings are civil in nature, this may be due to early state law influences with respect to informality and the desired purpose of rehabilitation. It is also likely due to the fact that federal limitations on the criminal jurisdiction of tribes make a civil jurisdiction scheme preferable to ensure that the tribal court fully exercises its powers and services in the interest of all juveniles and their family members within the jurisdiction of the tribe.

Even where a tribe’s juvenile code is civil in nature, it is still necessary to include provisions to protect the rights of juveniles, at a minimum, that comply with ICRA’s requirements for fair (due) process, and preferably, that comply with the "Juvenile 7" rights as directed by U.S. Supreme Court case law, and as generally applied across the state systems.[16] When a youth is found to be "delinquent," it is like being found guilty of a crime, particularly where a juvenile may be subject to secure detention as a disposition whether it is treatment-based or not. While tribes are not bound to follow the U.S. Supreme Court case law on fair juvenile process in their lawmaking, a compelling argument can be made that they should do so to protect both the rights and welfare of tribal youth and their families.

Tribal laws frequently incorporate the provisions of ICRA or in the alternative, incorporate provisions, often modified, directly from the U.S. Constitution, or even a state constitution. A specific, juvenile-tailored subset of these provisions relate to due process concerns that are highly relevant for tribal juvenile proceedings and should be incorporated into tribal juvenile statutes. These include a:[17]

• Right to counsel;
• Right to be notified of the charges and have a speedy trial;
• Right to confront witnesses against the juvenile and subpoena and call witnesses on his or her behalf;
• Right to a fair trial;
• Right to not be a witness against oneself or otherwise incriminate self;
• Right that the juvenile’s case will not be transferred into the adult criminal court without a hearing and stated reasons for the transfer; and[18]
• Right not to be found to be a juvenile delinquent absent proof "beyond a reasonable doubt."

In juvenile proceedings in most jurisdictions, there is no right to a jury trial,[19] and in many jurisdictions juvenile proceedings are closed to the public to protect the welfare of the juvenile.

The rights of youth in tribal process are implicated throughout all stages of that process, from initial interactions with the police through court hearings and "sentencing." Specified juvenile rights are particularly important when and if the youth is taken into custody and/or questioned (the concern here is what happens in interrogations); during a transfer hearing in tribal juvenile court (the concern being that a hearing with legal standards is undertaken before subjecting youth to adult criminal court process); and during a preliminary hearing and/or an adjudication (trial) in tribal juvenile court (the concern being that the juvenile court not merely accept unknowing admissions and/or false confessions and dispose of a trial before "sentencing" the youth). The table that follows reviews the comparative legal process requirements, standards, and evidentiary rules applied variously by ICRA, the 1989 BIA Tribal Juvenile Justice Code, and the University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code, followed by a description of the varying provisions.

The table compares the statutory provisions of ICRA, the 1989 BIA Tribal Juvenile Justice Code,[20] and the University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code. Relevant excerpts of the model codes are set out in the following text. We have compared and contrasted provisions as they apply to four critical stages of a tribal juvenile justice process and in answer to the question—why might so many tribal juvenile cases be transferred out, or if they remain in tribal juvenile court, why might they proceed to disposition ("sentencing") without undergoing adjudication ("trial")? The answer, we suspect, would be that tribal youth either admit to committing an offense early on or that they "plead guilty" during preliminary hearings. If this is the case, then it will be important to include tribal statutory protections against false and coerced confessions, unknowing admissions, and use of what would be inadmissible evidence in juvenile proceedings in jurisdictions following U.S. Supreme Court precedent on fair process in juvenile proceedings. The four critical areas of tribal process include: (1) questioning, custody, and interrogation; (2) transfer hearings to adult criminal court (or to federal or state court); (3) preliminary hearings and/or adjudications in tribal juvenile court; and (4) in tribal juvenile adjudications specifically, the applicable rules of evidence.

The Indian Civil Rights Act—ICRA sets out only two rights applicable to tribal juvenile court process: due process and equal protection. None of ICRA’s criminal provisions apply to juveniles. The act requires that tribes treat everyone fairly and equally. Some may argue that the ICRA due process provision alone should be sufficient to ensure that all of the "Juvenile 7" rights are legally recognized and enforced. The difficulty is that this hasn’t been the experience in the state juvenile systems, where decades of abuses have resulted in a series of U.S. Supreme Court cases delineating specific rights and process to be applied in state juvenile cases. In the tribal context, many tribal courts operate with lay judges and advocates who may not be familiar with the U.S. Supreme Court’s juvenile case law, or for that matter, with comparative tribal and state juvenile court process. It will be important to discuss hardwiring in specific juvenile statutory rights protections into the tribal laws applicable to tribal youth. This will ensure that tribal juvenile judges, court personnel, and advocates recognize, apply, and enforce them.

(1989) BIA Tribal Juvenile Justice Code—The BIA Tribal Juvenile Justice Code includes a number of specific juvenile statutory protections applicable to:

• Questioning/Custody/Interrogation—The BIA Tribal Juvenile Justice Code recognizes a youth’s right not to be compelled to answer questions that might incriminate him or her in tribal juvenile proceedings (the "privilege against self-incrimination," a.k.a. "Fifth Amendment right" under the U.S. Constitution). It also prohibits questioning of youth who are taken into custody except to identify him or her, to determine who his or her parent(s), guardian, or custodian is, or for purposes of medical assessment.
• Transfer Hearings—The BIA Tribal Juvenile Justice Code requires that a tribal juvenile court find by "clear and convincing evidence" that there are no reasonable prospects for rehabilitating a youth and that the alleged offenses demonstrate that the youth has a pattern of conduct that poses a substantial danger to the public, before it can transfer him or her to an adult criminal court to be processed.
• Preliminary Hearings/Adjudications (Re: Admissions)—BIA Tribal Juvenile Justice Code requires that, before accepting a youth’s "guilty plea," the tribal juvenile court judge questions the youth about whether he or she understands his or her rights and the consequences of admitting to having committed the alleged offense, whether he or she voluntarily, intelligently, and knowingly admits to all the facts necessary to prove the alleged offense, and where the judge has determined that the youth has not, in his or her statements, set forth facts that, if true, would be a defense to the alleged offense.
• Adjudications (Re: Rules of Evidence)—BIA Tribal Juvenile Justice Code also makes a youth’s out-of-court admission, for example to a police officer, inadmissible in a trial (adjudication) unless other evidence is offered; in addition, that would point to the youth’s having committed the alleged offense. Also, any statements made by the youth to the juvenile counselor are inadmissible later at trial. Finally, any out-of-court statements or illegally seized or obtained evidence, that would be inadmissible in an adult criminal trial, are likewise inadmissible.

Model Tribal Juvenile Code of the University of Washington’s Center of Indigenous Research and Justice —The University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code includes a number of specific juvenile statutory protections applicable to:

• Questioning/Custody/Interrogation—The University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code provides a specific list of rights and a requirement to advise the youth of these rights for youth during custody and interrogation, including the right to legal counsel, the right to remain silent, the privilege against self-incrimination, and the right to have a parent, guardian, or custodian present. Further, the code makes any of the youth’s custodial statements inadmissible unless the youth was advised of his or her rights and waived them, made the statement(s) after consulting with and in the presence of legal counsel, a recording was made of the statement(s), and the youth was not threatened in making the statement(s).
• Transfer Hearings—The University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code does not recommend or authorize transfers from tribal juvenile court to adult tribal criminal court.
• Preliminary Hearings/Adjudications (Re: Admissions)—The University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code sets out a comprehensive list of due process rights for youth in all proceedings under the code, and after adjudication (or in contempt proceedings). Such rights include the youth’s parent’s, guardian, or custodian, including rights to notice of all proceedings, the opportunity to be heard before an unbiased fact-finder, the right to do discovery, the right to testify, the right to subpoena witnesses, the right to introduce evidence on one’s own behalf, the right to cross-examine witnesses, and the right to have court findings be based solely upon the evidence properly admitted in hearings before the juvenile court. In delinquency proceedings, the youth has a right to counsel at all stages of the juvenile proceedings. His or her parent(s), guardian, or custodian has a right to counsel at the youth’s disposition proceedings and in any contempt proceedings. The code modifies the right to counsel in "child-in-need-of-services" proceedings (or proceedings involving status offenses or truancy) to include the youth’s right to be represented at any services planning conference and at all stages of any subsequent proceedings, and at all stages where a child-in-need-of-services petition has been filed. The model code also sets out comprehensive rights for youth including the privilege against self-incrimination; the right not to be fingerprinted, photographed, or to have any tissue samples taken absent a court order; the right not to be detained in a secure detention facility (except in compliance with the delinquency provisions) or in a jail, adult lock up or other detention facility; and special confidentiality provisions with respect to hearings and informal conferences (e.g., closed to the public), inspection of records, identifying information, and disclosures.
• Adjudications (Re: Rules of Evidence)—The University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code includes comprehensive rules of evidence specific to tribal juvenile delinquency proceedings, including (1) rules of admissibility modeled on the 1989 Tribal Juvenile Justice Code mentioned previously; (2) that oral, written, or other statements made as a result of an interrogation are inadmissible unless the youth was advised of his or her rights and waived them, made the statement(s) after consulting with and in the presence of legal counsel, a recording was made of the statement(s), and the youth was not threatened in making the statement(s); and (3) before permitting a youth’s statement to be introduced as evidence against the youth, the court must find that the statement was voluntarily and knowingly made, taking into account a list of factors (e.g., age, maturity, education, intelligence, mental development, physical and mental condition, consultation with parents/counsel, length of time interrogated, environment of interrogation, number of officers present, use of deception, use of isolation, food or sleep deprivation, or other coercive measures).

[11.3] Tribal Code Examples
 

[11.4] Tribal Code Commentary

The 1989 BIA Tribal Juvenile Justice Code has served as a "model code" for many tribes to date. Section 1-7 "Rights of the Parties in Juvenile Proceedings" effectively provides for notification of five of the seven rights critical to juvenile proceedings (right to counsel, notice of charges, right to a fair hearing, right to confront and cross-examine witnesses, and protection against self-incrimination). The remaining two (no transfer to adult court absent a hearing and specified reasons and the requirement of proof beyond reasonable doubt) are set out in later sections of the code. It is noteworthy that Section 1-7A "Privilege against Self-Incrimination" provides significant protection for youth where it requires notification of the privilege from the time a child is taken into custody and prohibits the questioning of a child beyond identification and/or treatment or emergency purposes.

A good number of tribes have followed the 1989 BIA Tribal Juvenile Justice Code provisions with modifications. A good example of this is the juvenile code of the Sault Ste. Marie Tribe. The Sault Ste. Marie rights provisions are identical to the model with the omission of the right not to be fingerprinted or photographed for criminal identification purposes. This may be due to the fact that many tribes lack the resources to do so for even their adult criminal defendants.

The Kalispel Youth Code, Section 7-16.02 "Jury Trial" provides an example of a tribe that explicitly denies the right to a jury trial in juvenile proceedings. This is consistent with most state juvenile proceedings. It is also consistent with the research on adolescents that argues against the use of public proceedings due to potential harms to youth and stigmatization of youth. In many tribal communities the use of a jury in a kin-based society, would, in effect, publicize the proceeding.

The Oglala Sioux Tribe, in its Section 2.01(f) guarantees a right to request a new hearing where new evidence has been discovered after an adjudicatory hearing or dispositional decision. This right appears unique across the tribal juvenile statutes reviewed.

[11.5] Exercises

The following exercises are meant to guide you in writing the "rights" section of the tribal juvenile code.

• Find and examine your juvenile code provisions setting out juvenile rights—does your list contain the "Juvenile 7"?
  • right to counsel (lay advocate or lawyer at own expense)
  • right to be notified of the charges and have a speedy trial
  • right to confront/cross-examine witnesses against the youth and to subpoena and call witnesses on his or her behalf
  • right to a fair trial (right to due process)
  • right to not be a witness against oneself or otherwise incriminate oneself
  • right not to have a case transferred into adult criminal court without a hearing and clear and convincing evidence that . . .
    • No reasonable prospects for rehabilitating through resources available; and
    • Offense(s) allegedly committed evidences a pattern of conduct that constitutes a substantial danger to the public
  • right not to be found to be a juvenile delinquent absent proof "beyond a reasonable doubt"
• If not, find and examine your constitution and/or judicial or court establishment code—do you have a general list that applies to everyone (adults and youth)? Is it based on the ICRA list (it usually begins, "No Indian tribe in exercising powers of self-government shall")? Or is it based on the federal or a state constitution list?
• Discuss whether you want your youth to have the specially tailored "Juvenile 7" rights in juvenile court.
• Discuss whether you want your youth to have tribally paid for legal counsel in juvenile court (an attorney or lay advocate).

Read and Discuss

Should a tribe pay for and provide attorneys or lay advocates for youth involved in tribal juvenile court?

The question of whether the tribe should provide an attorney or other well-trained lay advocate for juvenile offenders is an important decision and could have a dramatic impact on the fairness of your juvenile process. Read the following excerpt from testimony by Nadia Seeratan, Senior Staff Attorney and Policy Advocate, National Juvenile Defender Center at the Hearing on Native Children Exposed to Violence, February 11, 2014 in Scottsdale, AZ, and discuss.

The juvenile defender is a unique role in that they are the only person in the justice system whose role it is to express the expressed interest of the child. By representing the expressed interest of a child, the defense attorney becomes the child’s voice in a proceeding that is overwhelmingly confusing and frightening for young people. Although decisions of the United States Supreme Court—afford a constitutional right to counsel for youth are not binding on tribal nations—JDC believes these decisions, which recognize developmental science and brain science research, brings important information to bear and should provide persuasive and compelling arguments for the need for legal representation for all juveniles including American Indian and Alaska Native youth in tribal courts. So I’ll start with Gault, the United States Supreme Court Case 47 years ago that provided juveniles with the right to counsel. In Gault, the court found that the child requires the guiding hand of counsel at every step in the proceedings, because the juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into facts and to insist upon the regularity of proceedings. The court recognized the unique and critical role of the defender, stating the probation officer cannot act as counsel for the child, his role is an arresting officer and witnessing as the child, nor can the judge represent the child.

Chapter 12: Evidentiary Rules in Juvenile Proceedings

[12.1] Overview

In the state juvenile court systems, questions about the admissibility of evidence arise primarily regarding two stages in the process: (1) the police investigatory process; and (2) the court’s adjudicatory process.[21]

Police Investigatory Process—Both the Gault and Kent[22] decisions have been interpreted to require the application of the U.S. Constitution’s Fourth Amendment[23] and the exclusionary rule to the juvenile justice process. The exclusionary rule is the rule that evidence obtained in violation of an accused person’s constitutional rights cannot be admitted into evidence (cannot be used to prove guilt in court).

In juvenile cases, the most difficult issue has revolved around the juvenile’s competency to waive his or her Miranda rights, and then to make a statement or confession that may be used as evidence of his or her guilt in court. In general, state courts have relied on a "totality of circumstances" approach in determining the validity of the waiver. This standard is used to determine whether a juvenile’s statement or confession may be used as evidence in court and includes a weighing by the judge of factors at the time of his or her questioning including his or her age, competency, and educational level; his or her ability to understand the nature of the charges; and the methods used in, and the length of, interrogation.

Many state juvenile acts are based upon the Uniform Juvenile Court Act of 1968.[24] The Uniform Juvenile Court Act states that evidence seized illegally will not be admitted over objection.[25] Also, a valid confession made by a juvenile out of court is "insufficient to support an adjudication of delinquency unless it is corroborated in whole or in part by other evidence."[26]

Adjudicatory Process—Two of the post-Gault rights implicate evidentiary rules in juvenile adjudicatory proceedings: (1) the right to confront and cross-examine witnesses and (2) the right to remain silent. Under the Uniform Juvenile Court Act, the juvenile is entitled to introduce evidence and otherwise be heard in his or her own behalf and to cross-examine witnesses.[27] Also under the Uniform Act, a juvenile accused of a delinquent act need not be a witness against or otherwise incriminate himself or herself.[28] While a majority of state juvenile court acts do not set out a detailed set of rules of evidence, most do specify that only competent, material, and relevant evidence is admissible to prove guilt.

About "out-of-court statements" and the general prohibition against "hearsay"—"Hearsay" is defined as testimony that is given by a witness who relates not what he or she knows personally, but what others have said and that is therefore dependent on the credibility of someone other than the witness. This type of testimony is generally inadmissible under rules of evidence. The "hearsay rule" is the rule that no statement made by a witness on the stand can be received as testimony, unless it is or has been open to test by cross-examination or an opportunity for cross-examination, except as allowed by the rules of evidence. The gist of the rule is that the testimony of the person on the stand who is retelling a story told to them (as opposed to the testimony of the person who actually experienced the event) will not be admitted as reliable evidence.

About Standards of Proof—Finally, although many state and tribal juvenile proceedings are classified as "civil" in nature, the U.S. Supreme Court, post-Gault, has required that the highest standard of proof be applied in state juvenile proceedings—proof beyond a reasonable doubt. As discussed in earlier chapters, this higher standard is preferable in tribal juvenile proceedings as well, to ensure fair process and to protect the rights of the juvenile and his or her family by reliably establishing guilt. However, there may be some confusion where the practice in Indian country has been to combine juvenile offender proceedings and child maltreatment (abuse and neglect) proceedings within one tribal statute (ordinance or code). In many cases a lower civil standard of proof is applied as well to the juvenile proceedings. The preferred practice is to apply the standard of "beyond a reasonable doubt" to juvenile offender proceedings and the lower civil standards to child maltreatment proceedings.

[12.2] Model Code Examples
 

[12.4] Tribal Code Commentary

Many tribes have based their evidentiary provisions upon the 1989 BIA Tribal Juvenile Justice Code. The alternative University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code was completed in the fall of 2014 and has only recently been made available to the public. It includes comprehensive, juvenile-specific, evidentiary provisions that would be very useful in protecting both the welfare and rights of youth and their families in tribal juvenile court systems (incorporating the 1989 BIA Tribal Juvenile Justice Code’s evidentiary provisions and adding in special provisions governing the admissibility of youth statements acquired as part of an interrogation). However, it provides a right to paid-for attorneys for youth and their parents, guardians, and custodians at various stages and more comprehensive evidentiary rules tailored to protecting youth, which will necessitate skillful advocacy (at the level of a licensed attorney).

The 1989 BIA Tribal Juvenile Justice Code makes the following inadmissible "in a proceeding on a petition alleging that a child is a ‘juvenile offender’":

• An out-of-court statement (by anyone) that would be inadmissible in a criminal matter in tribal court.
• Evidence illegally seized or obtained.
• Statements of a child made while in custody (unless advised by counsel).
• A valid out-of-court admission or confession by the child (unless it is corroborated by other evidence).
• The fact that the child has been a party to a Family In Need of Services (FINS) proceeding and any information obtained during such proceeding.

The 1989 BIA Tribal Juvenile Justice Code evidence provisions are modified and tailored to tribal juvenile court process (as informed by U.S. Supreme Court precedent on fair juvenile process and given the experience of the state juvenile justice systems) and are the preferred alternative to a tribe’s wholesale application of the federal rules of evidence used in adult criminal proceedings to tribal juvenile proceedings (and the preferred alternative to the random adoption of rules of evidence from various sources). However, tribes prioritizing a paid-for right to counsel for their youth and their families should consider following the University of Washington’s model code provisions mentioned previously.

The Sault Ste. Marie Tribe’s Section 36.402 incorporates two limitations on the admissibility of evidence: out-of-court statements that would be inadmissible in a criminal matter in tribal court and evidence illegally seized or obtained. There is no limit on admitting a youth’s statement or confession as evidence. Contrast this with Section 111 A of the Absentee-Shawnee Juvenile statute, which incorporates the tribe’s entire body of rules of evidence. The Eastern Band of Cherokee also incorporate the evidence code used in the adult court to juvenile offender adjudications but exclude any statements made by the juvenile to the intake counselor during the preliminary inquiry and evaluation process. The purpose of this type of exclusion is to ensure that the youth will be able to speak freely prior to adjudication, that the matter be resolved preadjudication, and that the youth will have received the assistance and/or treatment that he or she needed. The Eastern Band of Cherokee’s approach keeps the prehearing phases informal where the focus can then be on screening, identification of youth and family problems, and rehabilitation. The Absentee-Shawnee Tribe of Indians of Oklahoma code is an example of a law requiring that there be sufficient evidence presented at an adjudication to meet the "beyond a reasonable doubt" standard. This is the highest standard of proof and is required in criminal cases.

[12.5] Exercises

The following exercises are meant to guide you in writing the evidence section of the tribal juvenile code.

• Find and examine your tribal court code provisions or court rules governing rules of evidence—is there a special set of evidence rules applicable to your juvenile court?
• Do your rules of evidence provide special protections against using false or coerced confessions (e.g., obtained during a police interrogation) in your juvenile court to find that the juvenile is guilty of committing the alleged offense?
• Do your rules of evidence provide special protections against using statements or admissions made during the intake, treatment, or case management process in your juvenile court to find that the juvenile is guilty of committing the alleged offense?
• Do your rules of evidence require that the juvenile judge determine that a youth’s admission in court is voluntarily, intelligently, and knowingly made and that he or she understands his or her rights and the consequences of pleading guilty, before accepting the youth’s guilty plea?
• Do your rules of evidence allow a youth’s statement, admission, or confession, without other evidence, to be used as the sole evidence of guilt in juvenile proceedings?
• Do your evidence rules allow third-party "out-of-court-statements" (otherwise known as "hearsay" and sometimes referred to as gossip) to be used as evidence against a youth in juvenile proceedings?
• What types of information would be more or less reliable for the court to use?

Read and Discuss*

A false confession is an admission of guilt in a crime in which the confessor is not responsible for the crime. False confessions can be induced through coercion or by the mental disorder or incompetency of the accused. Even though false confessions might appear to be an exceptional and unlikely event, they occur on a regular basis in case law, which is one of the reasons why jurisprudence has established a series of rules to detect, and subsequently reject, false confessions.

False confessions can be categorized into three general types, as outlined by Saul M. Kassin in an article for Current Directions in Psychological Science:

• Voluntary false confessions are those that are given freely, without police prompting. Sometimes they may be sacrificial, to divert attention from the actual person who committed the crime.
• Compliant false confessions are given to escape a stressful situation, avoid punishment, or gain a promised or implied reward.
• Internalized false confessions are those in which the person genuinely believes that they have committed the crime, as a result of highly suggestive interrogation techniques.

According to the Innocence Project, approximately 25% of convicted criminals ultimately exonerated had, in fact, confessed to the crime. . . . The high pressure generated may push innocent individuals to produce a confession.

Central Park Jogger (1989)
In the Central Park jogger case, on April 19, 1989, five teens aged from 14 to 16 were arrested and each confessed on videotape to the crime of attacking and raping a jogger and implicated each other. They later repudiated these confessions and maintained their innocence. The five were: Yusef Salaam, Kevin Richardson, Antron McCray, Raymond Santana, and Kharey Wise. In 1989, the police were aware that an unidentified sixth person had left semen on the victim's body. In 2002, Matias Reyes, a convicted murderer and rapist, admitted that he was responsible for the rape and attack of the jogger. The DNA obtained from the crime scene matched Reyes. New York state justice Charles J. Tejada vacated the convictions of five defendants on December 19, 2002. Yusef Salaam served six and a half years in prison. Kharey Wise was imprisoned until summer 2002, which was when his sentence was completed.

*Taken from Wikipedia—False Confessions.

Chapter 13: Taking a Child into Custody

[13.1] Overview

This chapter sets out a procedure for taking an alleged juvenile offender into custody. Most juvenile courts generally allow for youth to be taken into custody without a warrant if the law enforcement officer reasonably believes that the youth is delinquent, in need of supervision, dependent, abused, or neglected. In the case of truancy, disobedience, or neglect, in any system the legal process should begin with a summons unless waiting for the court’s permission would result in an unnecessary and dangerous delay.

This section of the code should address the following:

• Under what circumstances a child can be taken into custody;
• Who decides when a child is placed in custody;
• Where a child can be placed if in custody;
• Time limits on how long a child can remain in custody;
• Notification of family; and
• Process that must be followed when a child is in custody, including when release is required.

The detention of juvenile offenders must comply with the Juvenile Justice and Delinquency Prevention Act of 1974 (PL 96-509) which provides that (1) juvenile status offenders and nonoffenders are not to be placed in secure detention facilities; (2) suspected or adjudicated juvenile delinquents are not to be detained or confined in facilities allowing regular contact with incarcerated adults; and (3) no juvenile is to be detained or confined in any jail or lockup for adults except in low population density areas or where appropriate facilities are unavailable. Many tribal juvenile justice systems have had difficulty meeting the requirements of this act.

The court must designate appropriate juvenile facilities for various types of alleged "juvenile offenders" and also designate the appropriate juvenile official at these facilities to make detention decisions. Keep in mind that a Native youth has probably already experienced substantial trauma in his or her life and the event of being taken into custody by a law enforcement officer could add to that trauma. There should be a preference to place children in their homes or with a relative. Placement in foster care or other temporary care may also be appropriate in some cases. The court should exam what is reasonable to keep the youth and community safe. Communication among the juvenile system personnel and other agencies is vitally important to find the least restrictive setting for the youth.

The 1989 BIA Tribal Juvenile Justice Code, Section 1-8 A, provides that a law enforcement officer may take a child into custody without a warrant where the youth commits a juvenile offense in the officer’s presence or where the officer has a "reasonable suspicion" that the youth has committed a juvenile offense. "Reasonable suspicion" is defined in Black’s Law Dictionary as "a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal [here delinquent] activity."

Section 1-8 C. Release or Delivery from Custody 1989 BIA Tribal Juvenile Justice Code

The 1989 BIA Tribal Juvenile Justice Code, Section 1-8 C, provides that once a law enforcement officer has taken a youth into custody, he must advise the youth of his or her rights and then must either release the child to his or her parent, guardian, or custodian (or to a responsible adult tribal member with the consent of the parent, guardian, or custodian), or deliver the youth to the designated juvenile intake officer. In those cases in which the youth is in need of immediate treatment or in which he or she is under the influence of alcohol and/or drugs, he or she may be delivered to a medical facility.

Section 1-8 D. Review by Juvenile Counselor or Juvenile Facility 1989 BIA Tribal Juvenile Justice Code

The 1989 BIA Tribal Juvenile Justice Code, Section 1-8 D, provides that where a youth has been taken into custody and then delivered to the appropriate juvenile intake officer, that officer must then review the need for continued custody and release the youth to his or her parent, guardian, or custodian pending a court hearing, unless the alleged act constitutes a serious juvenile offense, there is probable cause to believe that the youth committed it, and/or there is reasonable cause to believe that the youth will run away, and/or there is reasonable cause to believe that the youth will commit a future serious act to a person or property.

[13.4] Tribal Code Commentary

Please note that a good number of tribes have used the 1989 BIA Tribal Juvenile Justice Code provisions as a starting point. The alternative University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code provisions were completed and made public in the fall of 2014 and at the time of first publication of this resource, tribes had not yet reviewed them. The 1989 BIA Tribal Juvenile Justice Code provisions allow a law enforcement officer to take custody of a youth given only a "reasonable suspicion"[29] to believe that a juvenile offense has been committed while the University of Washington provisions require the higher standard of "probable cause."[30]

The Sault Ste. Marie code allows a law enforcement officer to take a child into custody when the child commits a juvenile offense in the presence of the officer, the officer has a reasonable suspicion to believe a juvenile offense has been committed, or the juvenile court has issued a custody order. This is a fairly standard provision. The juvenile is read his rights and then the officer must decide what to do with the child. This section is very similar to the 1989 Tribal Juvenile Justice Code and the diagrams earlier in the chapter outline the potential responses.

The Eastern Band of Cherokee follows this process when a youth is taken into custody without a court order.

• Notify the juvenile’s parent, guardian, or custodian that a child is in custody and advise them of their right to be present when a determination is made as to the need for "secure or nonsecure" custody.
• Release the juvenile to parent, guardian, or custodian if the officer believes continued custody is unnecessary.
• If not released, then the officer requests that a petition be drawn. The petition goes to the intake counselor to consider prehearing diversion. If a decision is made to file a petition the intake counselor contacts the judge for a determination of continued custody.
• No juvenile can be held for more than twelve hours unless a petition is filed by the intake counselor and an order for secure or nonsecure custody has been entered by a judge.

The Eastern Band of Cherokee uses the terms secure and nonsecure custody. Nonsecured custody is a placement with social services or another person used for temporary residential placement in a licensed foster home or any other home or facility approved by the court. Some communities have safe homes for youth in these situations. A secure facility would include a regional detention facility or a detention home, although the code requires that the juvenile must not come into contact with adult prisoner in a detention facility.

A judge can order secured custody of a juvenile accused of offending only if the juvenile:

• Is charged with one or more felonies.
• Has willfully failed to appear on this or other delinquency proceedings.
• Threatens or has made plans to flee the jurisdiction.
• Is an absconder from a training school or facility.
• Has a recent record of violent conduct resulting in serious bodily harm to others.
• Has recent self-inflicted injury and should be detained for his own protection for a period of twenty-four hours while action is initiated to determine need for inpatient hospitalization.
• Is alleged to be a runaway and may be detained for a period of no more than eighty-two hours to facilitate evaluation of the juvenile’s need for medical or psychiatric treatment or to facilitate reunion with his parents.

[13.5] Exercises

The following exercises are meant to guide you in writing provisions governing taking a youth into custody and placing youth in a secure juvenile detention facility or in a juvenile shelter care facility under the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing the taking of youth into custody.
  • Under what circumstances can a youth be taken into custody?
  • What are the parental/guardian/custodian notification requirements?
  • When and where may a youth be placed/detained?
  • For how long?
• Make a list of current placement/detention options for youth.
• Make a list of the types of placement/detentions options you would like to develop or contract for.

Read and Discuss*

What happens to youth in secure detention facilities in your area?

National findings:

• Youth are physically and emotionally separated from their families and communities
• Youth find themselves in an environment of chaos and violence
• Youth experience neglect
• Youth become depressed and many become suicidal
• Youth will have an chance of recidivism (more delinquency and/or crime when they get out)
• Youth will be mixed into a "dumping ground of mentally ill youth"
• If a person is mentally ill already they will get worse

*Taken from "The Dangers of Detention: The Impact of Incarcerating Youth in Detention and other Secure Detention Facilities," The Justice Policy Institute Report.

Chapter 14: Detention Hearings

[14.1] Overview

When a youth is not released to his or her parents soon after being taken into custody, a detention hearing is held to determine whether further detention is necessary. This chapter describes the purposes of a detention hearing, the notice requirements, the detention hearing procedure, the standards to be considered, the finding at the hearing, and provisions for a rehearing.

Keep in mind that the detention of juveniles should meet the requirements of the Delinquency Prevention Act of 1974, which provides that status offenders (runaways, truants, or curfew violators) and nonoffenders (abuse/neglect victims) are not to be placed in secured detention facilities. Those youth suspected or adjudicated juvenile delinquents are not to be confined in facilities allowing regular contact with adults. If placed in a facility where adults are also confined, they must be separated by both sight and sound from the adult population.

Section 1-9 Juvenile Offender--Detention Hearing 1989 BIA Tribal Juvenile Justice Code

Under Section 1-9 of the 1989 BIA Tribal Juvenile Justice Code if a youth is taken into custody and is not released, a detention hearing must be held within forty-eight hours. Notice of the hearing must be given to the youth, his or her "parent, guardian, or custodian," and his or her advocate or attorney as soon as the hearing is set. These detention hearings must be conducted in juvenile court separate from other hearings. They must also be closed to the general public. At the detention hearing the judge must advise the youth and his or her parent, guardian, or custodian of their rights. The purpose of the hearing is to determine whether the detention criteria has been met for continued detention and, if it is met, whether the criteria has been met for placement in a secure detention facility versus a juvenile shelter care facility or whether the child should be referred to an alcohol or substance abuse emergency shelter or halfway house.

Section 1-8 F. Criteria for Selecting Juvenile Facility 1989 BIA Tribal Juvenile Justice Code

The 1989 BIA Tribal Juvenile Justice Code requires that both juvenile counselors and judges determine whether certain criteria have been met before continuing custody of a youth. See excerpt of 1989 BIA Tribal Juvenile Justice Code, Section 1-8 D in the following text. The 1989 Tribal Juvenile Justice Code also requires that juvenile counselors and judges determine whether further criteria have been met in deciding where to place youth—whether in a secure detention facility, a juvenile shelter care facility, or an alcohol or substance abuse emergency shelter or halfway house. The criteria for placement in secure detention are the most difficult to meet. A juvenile counselor or judge must find that one or more of the conditions set out in the following diagram exist before placement is warranted and required under the 1989 BIA Tribal Juvenile Justice Code. The 1989 BIA Tribal Juvenile Justice Code favors the release of youth to parents, guardian, custodian, or extended family and the placement of youth in a secure juvenile detention facility only as a last resort.

[14.4] Tribal Code Commentary

Please note that a good number of tribes have used the 1989 BIA Tribal Juvenile Justice Code provisions as a starting point. The alternative University of Washington’s Center of Indigenous Research and Justice Model Tribal Juvenile Code provisions were completed and made public in the fall of 2014 and at the time of first publication of this resource, tribes had not yet reviewed them.

The Sault Ste. Marie statute requires a hearing be held within seventy-two hours of the time of the youth’s initial detention. The statute gives a judge the authority to use his or her discretion in determining whether continued detention is warranted or required.

Criteria for continued detention of youth at detention hearing—The Sault Ste. Marie statute at Section 36.404 (5) omits the criteria, set out at 1989 Tribal Juvenile Justice Code Section 1-9 E for when a judge determines whether continued detention is warranted or required: "The court shall consider the evidence at the detention hearing as it pertains to the detention criteria set forth in sections 1-8 D and 1-8 F of this code." Compare: "The Court shall consider the evidence at the detention hearing as it pertains to the detention of the child" at Sault Ste. Marie statute, Section 36.404 (5). This is a significant omission as it gives the judge total discretion to decide whether to continue to detain a youth and where to detain the youth.

[14.5] Exercises

The following exercises are meant to guide you in writing the detention hearing section of the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing the detention hearing and placement/detention alternatives—what are the designated placement/detention options?
• Make a list of the actual placement/detention options available both in your community and in neighboring towns/cities.
• Make a list of what placement/detention options you would like to develop or contract for in your community and/or in neighboring towns/cities.

Read and Discuss*

Attention Homes’ Adolescent Residential Care program provides residential treatment to adolescents in crisis. We offer them emotional and behavioral support in a safe, structured, RCCF-licensed (Residential Child Care Facility) home-like setting. We use a systems approach to improve family dynamics and relationships. This program operates out of our Chase Court home.

Service Demographic—Services are provided to youth, ages 12–18, who are abused, neglected, troubled, delinquent, recovering, from families in crisis and/or are beyond the control of their parents. Residents are typically referred to us through social services departments or the court and juvenile systems. Teens may be privately referred through their families. Services are provided on a sliding scale fee structure based on income level and family size.

Evidence-based Practices—Our program’s design is based on best practices of successful youth residential care programs displaying the following characteristics: "family involvement, supervision and support by caring adults, a skill-focused curriculum, service coordination, development of individual plans, positive peer influence, building self-esteem, family-like atmosphere, and planning and support for post-program life" (Colorado State University Social Work Research Center).

Attention Homes' behavior change program, "Choices," is a strength-based system of choices and consequences supported by Cognitive Behavioral Therapy (CBT). CBT teaches residents positive decision-making skills. CBT is an intervention of choice for many RCCFs and is also used to teach residents to better manage their emotions and resulting behavior.

Respite/Extended Care—Teens develop an individual behavior plan, participate in group curriculum and learn how to regulate and stabilize their behavior and emotions through our behavioral level system.

Substance Abuse—Youth practice skills to learn how to function sober in the larger community. They participate in NA/AA, psycho-educational and life skills groups, and are helped finding part-time employment and important educational opportunities.

Transitional Living—Teens may stay up to several months before moving on to a safe and appropriate long-term placement. While at Attention Homes they learn independent living skills, and have help in finding part-time employment and important educational opportunities.

Services—Boys and girls living in our Adolescent Residential Care program are provided the following services:

• Safety, stability, security and supervision in a highly structured, RCCF-licensed, home-like environment
• Shelter and healthy meals
• Case management and individual, group and family coaching
• "Choices" behavioral-change level system program anchored in cognitive behavioral therapy
• In-home psycho-educational groups
• Regular attendance at Alcoholics Anonymous/Narcotics Anonymous groups
• Frequent, random poly-urine analysis screens
• Opportunities to practice pro-social skills
• Community-based living norms for home, school, work and recreation
• Access to accredited educational options and job training
• Access to physical, dental and mental health care
• Access to recreational activities and community service projects
• Life skills lessons and positive adult role models
• Access to part-time employment
• Experiential educational opportunities
• Optional aftercare services

*Taken from Attention Homes—Boulder Colorado—Adolescent Residential Care Program.

Chapter 15: Informal Adjustment in Juvenile Proceedings

[15.1] Overview

The "informal adjustment" is a critical stage in the juvenile proceedings. It diverts the child away from the formal judicial proceeding and instead offers ways to provide help and accountability for the child with less formality. It prevents the child from being labeled a juvenile offender.

The manner in which the informal adjustment is applied may vary slightly from one court to the next, but the example of the 1989 BIA Tribal Juvenile Justice Code is typical of how it might be applied. The 1989 BIA Tribal Juvenile Justice Code, Section 1-10 A, provides for a "juvenile counselor" to review, investigate, and recommend. The juvenile counselor must do this within twenty-four hours of a youth being released from custody or within twenty-four hours of any detention hearing. The juvenile counselor may recommend that no further action be taken, that the youth and his or her parents, guardian, or custodian participate in an "informal adjustment conference," that a presenting officer, or in some tribal jurisdictions, the prosecutor, petition to transfer the youth to adult criminal court, or that the presenting officer/prosecutor file a juvenile delinquency petition in juvenile court.

Under the 1989 BIA Tribal Juvenile Justice Code, Section 1-10 B.1, the juvenile counselor determines whether "adjustments or agreements" may be made to avoid the filing of a petition in the juvenile court. Under Section 1-10 B.2, the juvenile counselor must consider a list of factors in determining whether to recommend the filing of a formal petition in juvenile court. See the following diagram for each factor.

Section 1-10 A. Investigation by Juvenile Counselor 1989 BIA Tribal Juvenile Justice Code

Section 1-10 A of the 1989 BIA Tribal Juvenile Justice Code sets out the process and requirements for an informal conference. The purpose of the conference is to discuss alternative courses of action, including "diversion programs." If the youth and his parents, guardian, or custodian are agreeable, they may enter into a written agreement specifying the terms and conditions of the given diversion program. Under the 1989 BIA Tribal Juvenile Justice Code, the "informal adjustment period" is limited to six months. If the youth successfully completes his or her diversion program (a.k.a. agreement with its terms and conditions) within this time frame, the case is closed and no further action is required or taken. If, however, the youth fails to successfully complete his or her diversion program, the juvenile counselor may recommend that the presenting officer or prosecutor file a petition in juvenile court, thus initiating the juvenile court process. If a youth and his or her parent, guardian, or custodian, does not wish to participate in any diversion program, they may decline to do so and the juvenile counselor must recommend that the presenting officer/prosecutor file a petition in juvenile court.

Section 1-10 B. 2.  Informal Adjustment 1989 BIA Tribal Juvenile Justice Code

Section 1-10 C. Informal Conference 1989 BIA Tribal Juvenile Justice Code

There are all kinds of assessments, evaluations, examinations, services, treatment, and programs that may comprise any given type of "diversion program." The terms and conditions for these make up the terms and conditions that go into the agreement signed by the youth and his or her parent, guardian, or custodian. Diversion programs are the core of any effective tribal juvenile justice system and may require referrals, consent decrees, and/or sentencing orders or other types of court orders that "divert" youth. The U.S. Department of Justice through its Office of Juvenile Justice and Delinquency Prevention lists and describes evidence-based models for juvenile programming. They divide these into the categories of "immediate sanctions," "intermediate sanctions," "residential," and "reentry." The immediate sanctions may be applicable through referral by a juvenile counselor as part of an informal adjustment period. Some of the intermediate sanctions, residential, and reentry options are likely to require a court order for various reasons. See the following chart for a list of applicable models. Many of the special courts or special calendars are described in Section 2.4 Collaborative Justice Courts in the Juvenile Court Systems of this resource. Also, go to OJJDP’s Model Programs Guide for a full description of the model and evaluation research on the model’s efficacy.

[15.4] Tribal Code Commentary

The Pascua Yaqui statute at Section 120 is almost identical to the 1989 BIA Tribal Juvenile Justice Code at Sections 1-10 B and C. The only significant difference is the omission of "guardian or custodian" in its Section 120(A) and 120 (B)(6). Compare the 1989 BIA Tribal Juvenile Justice Code’s Section 1-10 B.1. "During the course of the preliminary investigation to determine what further action shall be taken, the juvenile counselor shall confer with the child and the child’s parent, guardian or custodian. . . ." Also compare the 1989 BIA Tribal Juvenile Justice Code’s Section 1-10 B.2. "The juvenile counselor shall consider the following factors in determining whether to proceed informally or to file a petition: . . . (f) participation and input from the child’s parent, guardian, or custodian." These omissions of "guardian or custodian" in the Pascua Yaqui statute appear to be inadvertent as later sections include this language.

The 1989 BIA Tribal Juvenile Justice Code was finalized before the launch of a national wraparound case management initiative in the early 2000s. Contemporary tribal juvenile justice codes should include, within the role and mandates of their equivalent of "Juvenile Counselor," the duty to conduct case management activities, preferably of the "wraparound" type that ensures tailored, individualized, and comprehensive case management for youth and their families.

The Sault Ste. Marie Tribal Code at Section 36.405 replaces the 1989 BIA Tribal Juvenile Justice Code’s "informal adjustment" process with a designated "peacemaking" process. The purpose and nature of the Sault Ste. Marie peacemaking process is set out in a separate set of guidelines. The prosecutor is authorized to take cases to a Peacemaking Committee that then will decide whether to proceed with peacemaking, do nothing, develop a case plan, or refer the entire matter back to the juvenile court system. We note that while it is the prerogative of sovereign tribal nations to further local values, ways, and priorities, it would be in the interest of these nations to add such peacemaking or other traditional or hybrid processes onto their informal adjustment processes, rather than replacing the informal adjustment process wholesale—to accommodate diversions to additional programs like wellness court (drug court), or any of the many programs or services listed in the preceding table, and where such program or service is not covered as part of the peacemaking program.

The Warm Springs Code is somewhat similar to the 1989 BIA Tribal Juvenile Justice Code; however it references specific types of adjustments such as:

• Referring the juvenile and the parent, guardian, or custodian to a community agency for assistance.
• Prescribing terms of supervision that assist and benefit the juvenile by regulating the juvenile’s activities.
• Accepting an offer of restitution voluntarily made by the juvenile.

It also requires the diversion plan be submitted to the judge for approval. Supervision can be up to one year and at a minimum monthly monitoring is required by statute.

[15.5] Exercises

The following exercises are meant to guide you in developing the informal adjustment sections of the tribal juvenile code.

• Find and examine your juvenile code to determine whether you have "informal adjustment" provisions (or any process where a juvenile counselor or probation officer assists youth and their families with a case plan and/or treatment plan before a hearing or trial takes place). What factors make the youth eligible for this?
• Identify who is responsible for such case management and/or treatment planning.
• Make a list of available services (health care, mental health, substance use/abuse, etc.).
• Make a list of available diversion programs (mentoring, educational, therapeutic, cultural, wellness court, teen court, peacemaking, mediation, etc.).
• Make a list of desired but as of yet unavailable services and programs.

Read and Discuss*

Should your tribe require early and follow-up mental health screening and assessments for youth involved in the juvenile justice system by statute?

"[R]egardless of the level of care or geographic region of the country, the majority of youth in the juvenile justice system meet the criteria for at least one mental health diagnosis. Overall 70.4 percent of youth were diagnosed with at least one mental health disorder, with girls experiencing a higher rate of disorders (81%) when compared to males (66.8%). For many of the youth in the study their mental health status was complicated by the presence of more than one disorder. Of those youth who were diagnosed with a mental health disorder, 79.1 percent met criteria for at least one other mental health diagnosis. The majority of youth who met criteria for a mental health diagnosis were also diagnosed with a co-occurring substance use disorder. Among those youth with at least one mental health diagnosis, approximately 60 percent also met criteria for a substance use disorder."

Selected "Core Principles":

• Youth should not have to enter the juvenile justice system solely in order to access mental health services or because of their mental illness.
• Whenever possible and when matters of public safety allow, youth with mental health needs should be diverted into evidence-based treatment in a community setting.
• If diversion out of the juvenile justice system is not possible, youth should be placed in the least restrictive setting possible, with access to evidence-based treatment.
• Information collected as part of a preadjudicatory mental health screen should not be used in any way that might jeopardize the legal interests of youth as defendant.
• Whenever possible, families and/or caregivers should be partners in the development of treatment decisions and plans made for their children.
• Multiple systems bear responsibility for these youth. While at different times, a single agency may have primarily responsibility, these youth are the community’s responsibility and all responses developed for these youth should be collaborative in nature, reflecting the input and involvement of the mental health, juvenile justice, and other systems.

*Taken from Kathleen R. Skowyra and Joseph J. Cocozza, PhD, "Blueprint for Change: A Comprehensive Model for the Identification and Treatment of Youth with Mental Health Needs in Contact with the Juvenile Justice System," a report by the National Center for Mental Health and Juvenile Justice Policy Research Associates, Inc. (2007).

Chapter 16: Petition for Juvenile Offender Proceedings

[16.1] Overview

Juvenile court proceedings begin with the filing of a petition naming the youth and sometimes the parents/guardians, alleging that the youth has committed a juvenile offense. It varies with respect to who is authorized to file a petition.

A petition generally begins with the words "in the interest of." Petitions tend to give the name and age of the youth and the names and address of the parents. Petitions typically indicate whether a minor is currently detained and when they were taken into custody. A tribal petition would contain a provision consistent with the code provision relating to tribal affiliation and/or residence in the tribal nation that gives the juvenile court jurisdiction over certain youth. They must also contain a statement of the facts that bring the youth within the jurisdiction of the juvenile court. The petition may also contain allegations related to the child’s need for treatment or rehabilitation. Once completed, a petition is then filed with the prosecutor who then decides whether or not to prosecute. If he does so, proper notice must be given to the youth and his or her parents or guardian. The petition in every sense must be consistent with your code provisions.

[16.4] Tribal Code Commentary

Section 36.406 of the Sault Ste. Marie Tribal Code sets out the requirements for filing and content of the petition. These are identical to the requirements set out under Section 1-10 D of the 1989 BIA Tribal Juvenile Justice Code. Most other tribal code provisions are similar as well, so no further examples were given.

Section 36.407 of the Sault Ste. Marie Tribal Code increases the number of days for serving a summons on the parties to seven, as opposed to the 1989 Tribal Juvenile Justice Code’s five days at Section 1-10 G.

See sample petition in the following text based upon the 1989 BIA Tribal Juvenile Justice Code.

[16.5] Exercises

The following exercises are meant to guide you in developing the petition section of the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing the drafting and filing of "petitions" or "complaints."
  • Who is responsible for drafting and filing petitions/complaints with the juvenile court?
  • What types of information must they include?
  • Who is responsible for arguing before the judge on behalf of the petition/complaint in the tribal juvenile court?
• Make a list of the pros and cons of having your tribal social worker, child protection worker, juvenile counselor, or juvenile probation officer do the petitioning/complaining in juvenile court.
• Many tribes designate a tribal prosecutor or presenting officer to be responsible for the petition/complaint drafting/filing/arguing process. Is this desirable in your juvenile justice system?

Read and Discuss

What is the purpose of the petition? Who fills it out and signs it? What does it look like?

Tribal Trends:

• The purpose of the petition is to invoke the jurisdiction of the juvenile court, to begin the fact-finding process to determine whether the youth committed a juvenile offense (if he or she does not admit to it), and to review the need for (continued or additional) services, treatment, and/or (continued) detention or placement.
   
• Tribal courts vary in assigning the duty of petition drafting/signing and making arguments to the juvenile court. Some tribes use a "presenting officer" or "prosecutor," others use a "juvenile probation officer," or "juvenile counselor." Still others use a "social worker" or "child protection worker" to handle the petitions.
   
• Petition templates should be drafted to fit the requirements of each tribe’s juvenile statute and the tribal criminal statute, as well as any statutes governing relevant diversion programs like peacemaking or wellness court.

Chapter 17: Presenting Officer/Prosecutor and Consent Decrees

[17.1] Overview

Under the 1989 BIA Tribal Juvenile Justice Code, there is a second opportunity, after a petition has been filed in juvenile court, for a youth and his or her family to enter into a conditioned agreement for services and/or treatment. This type of agreement is called a "consent decree." Under the 1989 BIA Tribal Juvenile Justice Code at Section 1-11 A, after a petition is filed, but before the judge has "entered a judgment" (issued a court order deciding whether or not the youth has committed a juvenile offense), the youth’s advocate or attorney, or the presenting officer or prosecutor, may file a motion with the court seeking to stop the court proceedings and to have a negotiated consent decree approved by the judge. This would suspend the court proceedings to see if the youth and his or her family can successfully complete requirements of the consent decree.

If the youth or his or her family objects to this process, the judge will not approve it and will proceed with the juvenile court process. If the youth and his or her family want to enter into a consent decree, the judge must still approve it before it is effective. Under the 1989 BIA Tribal Juvenile Justice Code at Section 1-11 C, a consent decree remains in force for six months. The juvenile counselor and/or the youth and his or her family may request an extension for another six months for additional services and/or treatment. If the youth and his or her family fail to fulfill the terms of the consent decree by the deadline, the presenting officer or prosecutor may file a petition to revoke the consent decree and to proceed on the original petition in juvenile court. If the youth and his or her family successfully meet the terms of the consent decree, the original petition must be dismissed with prejudice (meaning that it cannot be refiled later for the same underlying alleged offense). See 1989 BIA Tribal Juvenile Justice Code Section 1-11 F.

Section 1-11 Consent Decree 1989 BIA Tribal Juvenile Justice Code

[17.4] Tribal Code Commentary

The Sault Ste. Marie statute after Section 36.408 (1) and before Section 36.408 (2) omits the paragraph (Section 1-11 B. of the 1989 BIA Tribal Juvenile Justice Code):

If the child objects to a consent decree, the court shall proceed to findings, adjudication, and disposition of the case. If the child does not object, but an objection is made by the juvenile presenter after consultation with the juvenile counselor, the court shall, after considering the objections and the reasons given, proceed to determine whether it is appropriate to enter a consent decree and may, in its discretion, enter the consent decree.

The 1989 BIA Tribal Juvenile Justice Code provision at Section 1-11 B. provides for the youth and/or the presenting officer or prosecutor to object to the proposed consent decree. Under, Section 1-11 B, if the youth objects, the matter must proceed to findings, adjudication, and disposition. Under Section 1-11 B, if the presenting officer or prosecutor objects, the final decision is left to the judge. This 1989 BIA Tribal Juvenile Justice Code provision may be undesirable if the tribe wants the judge to use his or her discretion to decide whether to dismiss a petition even if a youth will not agree to a consent decree, and the judge would still be using his or her discretion to decide whether to approve a consent decree even absent the language regarding the objection of a presenting officer or prosecutor.

The 1989 BIA Tribal Juvenile Justice Code at Section 1-11 E. states:

If either, prior to discharge or expiration of the consent decree, a new "juvenile offender" complaint is filed against the child and the juvenile counselor has conducted a preliminary inquiry and authorized the filing of a petition upon a finding that informal adjustment is not in the best interest of the child and public, the juvenile presenter may: 1. file a petition to revoke the consent decree in accordance with the section 1-11 D of this code; or 2. file a petition on the basis of the new complaint which has been filed against the child.

The Sault Ste. Marie statute at Section 36.408 (4) omits the language: "and the juvenile counselor has conducted a preliminary inquiry and authorized the filing of a petition upon a finding that informal adjustment is not in the best interest of the child and public" from the 1989 Tribal Juvenile Justice Code at Section 1-11 E. The Sault Ste. Marie statute removes the requirement that would handicap the presenting officer or prosecutor in seeking to revoke an original consent decree. Under the 1989 BIA Tribal Juvenile Justice Code language, a presenting officer or prosecutor would not be authorized to seek to revoke the consent decree for the first offense before and unless a juvenile counselor decided to recommend the filing of a petition in juvenile court for a second offense. The Sault Ste. Marie provision gives presenting officers and prosecutors more discretion to revoke an original consent decree given a subsequent new offense. However, it definitely prejudices the youth and his or her family by taking away their existing chance to succeed in their services and treatment. In deciding which approach to follow, a tribe should consider what entity in their system would be in the best position to make case-by-case decisions about whether a youth and his or her family can succeed in a given case plan—the juvenile counselor/probation officer, or the presenting officer/prosecutor?

The Sault Ste. Marie statute at Section 36.410 provides for a preliminary hearing for the purpose of revoking consent decrees and gives the youth an opportunity to deny or admit to the allegations of the petition and to explain anything they would like to explain. The preliminary hearing functions like an arraignment in a criminal proceeding where a criminal defendant is given a chance to plead and where other preliminary matters are handled prior to a trial.

[17.5] Exercises

The following exercises are meant to guide you in developing the consent decree sections of the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing the "consent decrees," if any.
  • Who is authorized to file petitions/motions for consent decrees in the juvenile court?
  • What services and/or programs are available to youth through the consent decree?
  • What are the requirements for granting a consent decree?
  • What happens to the youth if the judge will not grant a consent decree?
  • What happens if a consent decree is not successfully completed or violated in some way by the youth?
• Make a list of the pros and cons of having a consent decree process in your juvenile justice system.

Read and Discuss*

Montana findings:

• Cases involving American Indian juveniles were 50 percent to 80 percent less likely to be resolved through a consent decree after petition for adjudication.
• Cases were more likely to result in consent decrees when the juvenile was a school dropout and where the current offense was a felony offense that was something other than an offense against property.
• Consent decree outcomes were less likely when the cases involved male juveniles, juveniles with a history of mental illness, and in cases in which the current offense was a drug offense.

*Taken from Report: "Assessing the Mechanisms That Contribute to Disproportionate Minority Contact in Montana’s Juvenile Justice Systems," December 2012, Social Science Research Laboratory University of Montana, Missoula.

Chapter 18: Adjudications in Juvenile Proceedings

[18.1] Overview

Under the 1989 BIA Tribal Juvenile Justice Code, Section 1-12, the purpose of the adjudicatory hearing is to determine whether a youth has committed a "juvenile offense." The proceedings are closed to the general public. The timing requirements vary depending upon whether the youth has been taken into custody. If the youth is in custody, the adjudicatory hearing must be held within ten days of the filing of the petition. Otherwise, the hearing must be held within thirty days of the filing of the petition.

If the youth admits to the allegations in the petition the judge must make a record of his or her findings and schedule a disposition hearing. Alternatively, if the judge finds on the basis of proof beyond a reasonable doubt that the allegations contained in the petition are true, the judge must make a record of his or her findings and schedule a disposition hearing.

In adjudicatory hearings the judge determines whether the youth is to continue in an out-of-home placement pending disposition. If the judge finds that the allegations in the petition have not been established beyond a reasonable doubt, he or she dismisses the petition and releases the youth. The U.S. Supreme Court held in In re Winship, 397 U.S. 358 (1970), that when a state undertakes to prove a child delinquent for committing a criminal act, it must do so beyond a reasonable doubt.

Section 1-12 Adjudicatory Proceedings 1989 BIA Tribal Juvenile Justice Code

[18.4] Tribal Code Commentary

The Sault Ste. Marie statute at Section 36.411(1) omits the language from the 1989 BIA Tribal Juvenile Justice Code, Section 1-12 A, which excludes the public from the adjudicatory hearing: "The general public shall be excluded from the proceedings. Only the parties, their counsel, witnesses, and other persons requested by the parties shall be admitted." The literature on adolescent development recommends that these proceedings be closed to the public to avoid further stigmatizing youth and causing them present and future harm.

The Sault Ste. Marie statute at Section 36.411(2) increases the number of days for the holding of an adjudicatory hearing if a youth is in custody: "If the child remains in custody, the adjudicatory hearing shall be held within fourteen (14) days after the preliminary hearing." Compare the Section 1-12 B from the 1989 BIA Tribal Juvenile Justice Code: "If the child remains in custody, the adjudicatory hearing shall be held within ten (10) days of receipt of the ‘juvenile offender’ petition by the juvenile court." The Sault Ste. Marie statute contains a "preliminary hearing" stage not included in the 1989 BIA Tribal Juvenile Justice Code. Preliminary hearings are a necessary part of any court process. Although they were not provided for under the 1989 BIA Tribal Juvenile Justice Code, it would still be possible to use them but they would have to take place before the adjudicatory hearing and within the tight time frames of the code. This likely explains the increase in the time limit under the Sault Ste. Marie statute.

The Sault Ste. Marie statute at Section 36.411 (3) increases the number of days for providing notice of the adjudicatory hearing: "Notice of the adjudicatory hearing shall be given to the child and the child’s parent, guardian, or custodian, the child’s counsel and any other person the Court deems necessary for the hearing at least seven (7) days prior to the hearing pursuant to '36.407." Compare the 1989 Tribal Juvenile Justice Code provision at Section 1-12 C: "Notice of the adjudicatory hearing shall be given . . . at least five (5) days prior to the hearing. . . ." The Sault Ste. Marie provision is more protective of the youth’s rights in the sense that it provides two additional days of notice and thus preparation for the hearing.

[18.5] Exercises

The following exercises are meant to guide you in developing the adjudication sections of the tribal juvenile code.

• Find and examine your juvenile code provisions governing "hearings" and/or "adjudications." How soon after the filing of petition must your juvenile judge hold a hearing?
• What "findings" are the judge required to make ("juvenile delinquent," "juvenile offender," "status offender," "FINS," etc.)?
• What "standard of proof" is required to prove that a youth is a "juvenile delinquent" or "juvenile offender," and so forth (e.g., "proof beyond a reasonable doubt")?

Read and Discuss*

Facts and Case Summary: In re Gault 387 U.S. 1 (1967)

Gerald ("Jerry") Gault was a fifteen-year-old accused of making an obscene telephone call to a neighbor, Mrs. Cook, on June 8, 1964. After Mrs. Cook filed a complaint, Gault and a friend, Ronald Lewis, were arrested and taken to the Children’s Detention Home. Gault was on probation when he was arrested, after being in the company of another boy who had stolen a wallet from a woman’s purse.

At the time of the arrest related to the phone call, Gault’s parents were at work. The arresting officer left no notice for them and did not make an effort to inform them of their son’s arrest. When Gault’s mother did not find Gault at home, she sent his older brother looking for him. They eventually learned of Gault’s arrest from the family of Ronald Lewis. When Mrs. Gault arrived at the Detention Home, she was told that a hearing was scheduled in juvenile court the following day.

The arresting officer filed a petition with the court on the same day of Gault’s initial court hearing. The petition was not served on Gault or his parents. In fact, they did not see the petition until more than two months later, on August 17, 1964, the day of Gerald’s habeas corpus hearing. The June 9 hearing was informal. Not only was Mrs. Cook not present, but no transcript or recording was made, and no one was sworn in prior to testifying. Gault was questioned by the judge and there are conflicting accounts as to what, if anything, Gault admitted. After the hearing, Gault was taken back to the Detention Home. He was detained for another two or three days before being released. When Gault was released, his parents were notified that another hearing was scheduled for June 15, 1964.

Mrs. Cook was again not present for the June 15th hearing, despite Mrs. Gault’s request that she be there "so she could see which boy that done the talking, the dirty talking over the phone." Again, no record was made and there were conflicting accounts regarding any admissions by Gault. At this hearing, the probation officers filed a report listing the charge as lewd phone calls. An adult charged with the same crime would have received a maximum sentence of a $50 fine and two months in jail. The report was not disclosed to Gault or his parents. At the conclusion of the hearing, the judge committed Gault to juvenile detention for six years, until he turned 21.

Gault’s parents filed a petition for a writ of habeas corpus, which was dismissed by both the Superior Court of Arizona and the Arizona Supreme Court. The Gaults next sought relief in the Supreme Court of the United States. The Court agreed to hear the case to determine the procedural due process rights of a juvenile criminal defendant.

* Taken from the U.S. Courts website maintained by the Administrative Office of the U.S. Courts on behalf of the Federal Judiciary, Facts and Case Summary: In Re Gault.

Chapter 19: Predisposition Studies in Juvenile Proceedings

[19.1] Overview

In the state systems, after a determination in an adjudicatory hearing that the allegations in the petition are true and that a "wardship" is necessary, a dispositional hearing is set to determine the final disposition of the case.[31] When a youth is found to be a "ward of the court" it means that the court, as an agency of the state, has found it necessary to act in place of the youth’s parents (in loco parentis). The decisions normally made by the parents are then made by a representative of the court, usually the juvenile probation officer in consultation with the juvenile court judge. States vary as to whether the dispositional hearing must be separate from adjudicatory hearings. In some states the two hearings are separate because different procedures and rights are involved (criminal versus civil standards).

Between the adjudicatory hearing and the dispositional hearing, the probation officers obtain further information to assist the judge in deciding the final disposition of the case. These are called "social background investigations" and "individualized justice" is the goal. The results of these investigations, including interviews with people in the community, are put in a report for the judge. The "probative value" of this information, or its value as proof, might not be as reliable, and in the state systems, it can be challenged in the dispositional hearing. As a result of the Kent decision (Kent v. United States, 1966), the youth, through his or her attorney, has the right to review the contents of a report containing the results of a social background investigation in certain hearings because there is no irrefutable presumption of accuracy in these reports. In the state systems, this right has been extended to dispositional hearings.

1-13 A. Predisposition Studies 1989 BIA Tribal Juvenile Justice Code

Under the 1989 BIA Tribal Juvenile Justice Code, at Section 1-13, the judge directs the juvenile counselor to prepare and draft a "predisposition study and report." The report must cover information about the child, his or her family, his or her environment, and "any other matter" relevant to his or her treatment or "other appropriate disposition of the case." The report must also contain a plan for the child aimed at resolving the problems identified in the petition.

The judge may also order medical assessments, testing by psychiatrist, psychologist, or psychometrician, and/or an examination of the child and/or his or her parent(s) or custodian(s), where they consent, by a physician, psychiatrist, or psychologist. Evaluations, assessments, and dispositional reports must be submitted to the juvenile court and the parties no later than three days before the scheduled hearing date. A psychometrician is a person, for example a clinical psychologist, who is skilled in the administration and interpretation of objective psychological tests.

[19.4] Tribal Code Commentary

The Sault Ste. Marie provisions and the 1989 BIA Tribal Juvenile Justice Code provisions are nearly identical. The one significant difference is the Sault Ste. Marie Tribe’s addition, at Section 36.412, that the judge may order a predisposition study and report even when a child is not admitting to, or has not been adjudged, a "juvenile offender":

1. The Court may direct the juvenile probation officer to prepare a written disposition study and report for the Court concerning the child, the child’s family, environment, and any other matter relevant to need for treatment or other appropriate disposition of the case when:
   1. The child has been adjudicated as a juvenile offender.
   2. A notice of intent to admit the allegations of the petition has been filed.
   3. Upon request of the Juvenile Division.

This addition gives the juvenile court judge the discretion to order a predisposition study and report at any point in the process, regardless of whether the youth will admit to, or be proven to be, a juvenile offender. The upside is increased power in the judge to look out for the youth’s needs at any point in the process. The downside is that the judge now has the power to, in a sense, snoop around in the youth’s affairs before he or she has admitted to committing, or is shown to have committed, a juvenile offense.

[19.5] Exercises

The following exercises are meant to guide you in writing the predisposition studies and reports section of the tribal juvenile code.

• Find and examine your juvenile code’s provision for drafting studies or reports prior to a [disposition] hearing.
  • Who is responsible for doing this?
  • What information is this person supposed to get?
  • Where is this person supposed to get his or her information?
  • Do you think this information is reliable?
  • What would make it more reliable?

Read and Discuss*

"Once a youth is adjudicated a delinquent youth or a status offender, the court decides the most appropriate sanction—referred to as formal disposition. Disposition is similar to sentencing in adult courts. Traditionally, disposition has been one of the key decision points at which the court considers ‘the best interests of the child.’ Disposition is imposed at the dispositional hearing, which is separated in time from adjudication hearings. After adjudication, but before the dispositional hearing, a predisposition report is usually written by a probation officer. Authorized by court order and statutory law, the report provides an evaluation of the youth and his or her background and social environment. The predisposition report attempts to provide assessment information to the judge so that disposition can be individualized and directed at rehabilitation. The predisposition report is commonly organized with three major sections: the offense section, a social history, and a summary and recommendation."

• Offense Section
  • Official version of the offense
  • Commentary re: juvenile’s version of the offense
  • Prior record (including previous arrests, petitions, adjudications, and dispositions)
  • A victim impact statement
• Social History—Observations About . . .
  • The juvenile and his or her family background
  • Educational experiences and achievements
  • Friends
  • Employment
  • Neighborhood context
• Summary and Recommendation (sometimes all the judge reads)
  • Evaluative summary highlighting key findings
  • Recommendation Re: Disposition

*Taken from James W. Burfeind and Dawn Jeglum Bartusch, Juvenile Delinquency: An Integrated Approach, 2nd ed. (Sudbury, MA : Jones and Bartlett, 2011).

Chapter 20: Disposition in Juvenile Proceedings

[20.1] Overview

Under the 1989 BIA Tribal Juvenile Justice Code, a disposition hearing must be held within ten days of the adjudicatory hearing if the youth remains in custody. Otherwise, the disposition hearing must be held within twenty days of the adjudicatory hearing. The purpose of the disposition hearing is for the judge to decide the youth’s "supervision, care, and rehabilitation" based upon "all relevant and material evidence," including the predisposition reports or other ordered reports or studies. The judge must also consider any alternative predisposition reports or recommendations provided by the youth or his or her advocate or attorney.

The disposition hearing is separate from the adjudicatory hearing. It is closed to the public. The youth and his parent(s), guardian(s) or custodian(s) are given the rights listed under Chapter 1-7 of the 1989 BIA Tribal Juvenile Justice Code.

Sections 1-13 and 1-14 Predisposition and Disposition 1989 BIA Tribal Juvenile Justice Code

Today there are many different kinds of community treatment programs and youth guidance centers. As a result, contemporary dispositions contain conditions for participation and completion of these programs. The dispositions of "probation" or "suspended sentence" may often require compulsory attendance at such a community-based treatment or rehabilitation program. If the youth violates these conditions, it may result in a revocation of probation or the unsuspending of his or her sentence. Most states specify a maximum amount of time for confining a youth. All generally terminate the effect of juvenile orders when they reach the age of majority. This results in discharging the youth from further obligation and control.

Section 1-14 E. Disposition Alternatives 1989 BIA Tribal Juvenile Justice Code

Under the 1989 BIA Tribal Juvenile Justice Code at Section 1-14 E, where a judge finds that a youth is a "juvenile offender," he or she may determine how the youth will be supervised, cared for, and/or rehabilitated. The provision sets out six disposition alternatives: allowing a youth to remain with his or her parents (or guardian or custodian), placing the youth in the legal custody of a relative (or "other suitable person"), requiring that the youth pay restitution to anyone harmed, placing the youth under "protective supervision" (this means that the youth is allowed to remain with his or her parents, relative, or other suitable person, but that the court and a health or social services agency will be monitoring and providing services), placing the youth on probation, or placing the youth in a juvenile facility. All of these options are likely to be subject to specific conditions and limitations set by the judge and included in the court order.

Please note that a good number of tribes have used the 1989 BIA Tribal Juvenile Justice Code provisions as a starting point. The alternative University of Washington Model Tribal Juvenile Code provisions were completed and made public in the fall of 2014 and at the time of first publication of this resource, tribes had not yet reviewed them.

The Sault Ste. Marie statute at Section 36.413 (1) omits the following language from the 1989 BIA Tribal Juvenile Justice Code at Section 1-14 A:

"Disposition hearings shall be conducted by the juvenile court separate from other proceedings. (Emphasis added.) The court shall conduct the disposition hearing to determine how to resolve a case after it has been determined at the adjudicatory hearing that the child has committed a specific ‘juvenile offense.’"

In the state systems there is a "bifurcated" hearing process, meaning that they do not hold the adjudicatory hearing and the disposition hearing in the same hearing. This is because there are different evidentiary rules applicable to each type of hearing. In an adjudicatory hearing only evidence bearing on "guilt" of the allegations contained in the petition is allowed, while at the disposition hearing, the judge may look at the totality of the youth’s circumstances. The danger in conflating the two hearings is that the judge may consider irrelevant but prejudicial information in determining guilt for a particular alleged act (e.g., information about a youth’s friends or the youth’s general home circumstances and/or conduct).

The Sault Ste. Marie statute at Section 36.413 (1) states: "The Court shall make and record its dispositional order." It then omits the following language from the 1989 BIA Tribal Juvenile Justice Code at Section 1-14 A: "The court shall make and record its dispositional order in accordance with sections 1-14E and 1-15 of this code."(Emphasis added). Section 1-14 E of the 1989 BIA Tribal Juvenile Justice Code specifies six dispositional alternatives. Section 1-15 of the 1989 BIA Tribal Juvenile Justice Code specifies the requirements for reviewing, modifying, revoking, and/or extending disposition orders. The Sault Ste. Marie omission may be insignificant with respect to the 1989 BIA Tribal Juvenile Justice Code Section 1-14 E in that the omission does not have a different legal effect where the 1989 BIA Tribal Juvenile Justice Code Section 1-14 E is discretionary for a judge in any case. However, there are mandatory requirements under 1989 BIA Tribal Juvenile Justice Code Section 1-15, such as the requirement that dispositional orders be reviewed once every six months or that disposition orders must automatically terminate at certain points. It appears that Sault Ste. Marie was attempting to give the judge more discretion in selecting dispositional alternatives and in the review, modification, revocation, extension, and/or automatic termination of disposition orders. This could undermine certain protections in the 1989 BIA Tribal Juvenile Justice Code provided for youth and their families.

The Sault Ste. Marie statute at Section 36.413 (1) omits the following highlighted language from the 1989 BIA Tribal Juvenile Justice Code at Section 1-14 A:

"At the disposition hearing, the child and the child’s parent, guardian or custodian shall have the applicable rights listed in chapter 1-7 of this code. The public shall be excluded from the proceedings. Only the parties, their counsel, witnesses, and persons requested by the parties shall be admitted."(Emphasis added.)

The Sault Ste. Marie omission makes dispositional hearings open to the public. Scholars conducting research on adolescents recommend that juvenile proceedings remain closed to the public to avoid stigmatization and present and future harm to youth.

The Sault Ste. Marie statute at Section 36.413 (2) modifies the following italicized text:

2. If the child remains in custody, the dispositional hearing shall be held within thirty (30) days after the adjudicatory hearing. If the child is released from custody or was not taken into custody, then the disposition hearing shall be held within sixty (60) days after the adjudicatory hearing. (Emphasis added).

Compare the 1989 BIA Tribal Juvenile Justice Code at Section 1-14 B:

If the child remains in custody, the disposition hearing shall be held within ten (10) days after the adjudicatory hearing. If the child is released from custody or was not taken into custody, then the disposition hearing shall be held within twenty (20) days after the adjudicatory hearing. (Emphasis added.)

The Sault Ste. Marie provision increases the time limit for the holding of a dispositional hearing where a youth remains in custody (from 10 days to 30 days), and where a youth is not in custody (from 20 to 60 days). This gives the tribal court, its juvenile counselor, and other service providers more time to conduct investigations, reviews, evaluations, examinations, and assessments and to produce written recommendations to the judge. However, it also infringes upon the rights of the youth and his or her family by potentially extending the period of custody for up to twenty more days or simply delaying "sentencing" for up to forty more days. There is a delicate balance between the needs of the system and the needs and rights of youth and their families. The 1989 BIA Tribal Juvenile Justice Code provisions tend to default to the needs and rights of youth and their families. However, the timing of required process needs to be tailored to the realities of the tribal system—where the leadership, policy, and law of the system are accountable and responsive to those served.

The Sault Ste. Marie statute at Section 36.414 (4) modifies the following italicized text:

4. When the child reaches seventeen (17) years of age, all disposition orders shall automatically terminate unless the original disposition order was made within one (1) year of the child’s seventeenth (17th) birthday or after the child had reached seventeen (17) years of age, in which case the disposition order may not continue for more than one (1) year. (Emphasis added).

Compare the 1989 BIA Tribal Juvenile Justice Code provision at Section 1-15 D:

When the child reaches eighteen (18) years of age, all disposition orders shall automatically terminate, unless the original disposition order was made within one (1) year of the child’s eighteenth (18th) birthday or after the child had reached eighteen (18) years of age, in which case the disposition order may not continue for more than one (1) year.

The Sault Ste. Marie provision reduces the age from eighteen to seventeen for when disposition orders must automatically terminate. The Sault Ste. Marie Juvenile Court is empowered to exercise juvenile court jurisdiction only over those who may commit juvenile offenses before their seventeenth birthday. By contrast the 1989 BIA Tribal Juvenile Justice Code creates a juvenile court that may exercise jurisdiction over a youth who may commit a juvenile offense before their eighteenth birthday. The 1989 Tribal Juvenile Justice Code also provides for extensions of juvenile court jurisdiction beyond a youth’s eighteenth birthday under certain circumstances (e.g., where a youth’s disposition order was made within a year of or after his eighteenth birthday). Scholars and researchers studying adolescents argue that the brain is not fully developed until closer to age twenty-five. They advocate for an extension of juvenile court jurisdiction even beyond age eighteen where the circumstances warrant it.

The Sault Ste. Marie statute at Section 36.415 establishes a process for probation hearings and placing youth on probation. Potential outcomes include house arrest and curfew, among other conditions and limitations. Grounds for probation revocation must be proven by a preponderance of the evidence.

Many tribes use probation as the primary dispositional alternative for juvenile offenders. In the state systems probation is the most frequent disposition for juvenile offenders. With probation, a youth is released with the understanding that freedom is conditioned on continuing good behavior and compliance with the terms of probation. Violations of probation may result in a probation revocation and the imposition or execution of the original sentence. The terms of probation are approved and ordered by the judge and may take the form of agreeing to:

• Obey all laws
• Regularly attend school
• Not associate with delinquents or criminals
• Stay within the jurisdiction
• Regularly report to probation officer for counseling and supervision
• Curfews
• Alcohol and drug testing
• Counseling
• Community service
• Restorative justice (restitution, letters of apology, victim impact panels/classes, community service, victim/offender conferencing, community panels, restorative justice peer juries, restorative group conferencing, circle sentencing, etc.)

In the state systems the terms of probation must be reasonable and relevant to the offense for which probation was ordered (see, e.g., People v. Dominguez [1967] [condition that female not become pregnant not relevant to offense of robbery]).

[20.5] Exercises

The following exercises are meant to guide you in developing the dispositions sections of the tribal juvenile code.

• Find and examine your juvenile code’s provisions setting out possible "dispositions"—make a list of the possible outcomes for youth under your juvenile code

Examples from other codes …

• Youth to remain with parent, guardian, or custodian with conditions and limitations
• Youth placed with relative or other person with conditions and limitations
• Youth placed in respite care (temporary out-of-home placement with youth and family services and programming)
• Youth placed in shelter care (e.g., foster care)
• Youth and family referred to services (e.g., counseling/groups/classes, screening and assessment for physical and mental health services, and substance use/abuse and treatment services, etc.)
• Youth placed on probation with conditions and limitations
• Youth ordered to pay restitution
• Youth ordered to participate in victim-offender mediation, "circle process," or "sentencing circles"
• Youth [and family] ordered to participate in family mediation or "peacemaking"
• Youth ordered to be placed in a residential treatment facility
• Youth ordered to be placed in a juvenile facility or secure juvenile detention facility
• Youth ordered to participate in a therapeutic docket (e.g., wellness [drug] court)
• Youth ordered to participate in a community-based program (e.g., a cultural program, mentoring programs, and/or teen court, etc.)

Make a list of other disposition options and/or diversion programs you wish to develop and include in your juvenile justice system.

Read and Discuss*

The Boys Town Model (the "Boys Town Integrated Continuum of Care"):

• Residential Treatment Center
  • A medically directed program in a secure environment for children with psychiatric disorders.
• Intervention and Assessment Services
  • Thirty-day program providing care for abused, neglected, runaway, and delinquent youth by removing them from dangerous situations, assessing their needs, and beginning to work toward family reunification or other permanent care.
• Family Home Program
  • Provides a family for children ages ten to eighteen. Six to eight boys or girls, many with serious emotional and behavioral problems, live in each single-family home with a married couple called Family Teachers. Children learn social skills, attend school, participate in extracurricular activities, and take part in daily chores and activities.
• Foster Family Services
  • Foster parents, trained and supported by Boys Town, who open up their homes in the community to children who need a safe place to live. The length of stay varies depending on the child’s needs. Foster parents work to reunify children with their parents or other caregivers, whenever possible.
• In-Home Family Services
  • The goal is to keep children in their home or to help them reunite with their family whenever possible. On call Family Consultants teach families how to handle issues after they arise and how to prevent them for becoming more disruptive.
• Community Support Services
  • A wide variety of resources that can help children and families learn how to help themselves, or receive specialized care, or educational assistance.

*Taken from Boys Town.

Chapter 21: Status Offenses/Family in Need of Services (FINS): Nondelinquency Proceedings General

[21.1] Overview

The states’ Uniform Juvenile Court Act at Section 2(4) creates a category called "unruly child" that is distinct from a youth committing a delinquent act.[32] The unruly child category includes a youth who is engaged in activities that are noncriminal or one in which youth violations of the law (curfew violations, running away, etc.) are committed. These activities are also known as status offenses or activities that are only considered offenses because of the young age of the youth. If an adult engaged in the same act it would not be a crime.

There was a time when many states included status offenses in the delinquent behavior category. This resulted in youth being labeled delinquent and being subject to incarceration in secure juvenile detention facilities. The Uniform Juvenile Court Act recognized that an unruly child may need the assistance of the juvenile court but that this child should not be included in the delinquent category. Section 32 prohibits the placement of an "unruly child" in a juvenile detention facility unless the juvenile court finds that the youth is not amenable to treatment or rehabilitation. Today, most states separate status offenses from delinquent acts and place them in a nondelinquent category called "in-need-of-supervision," or some variant of this. This is important because it separates the nonserious violator, who is often a youth with a troubled home life (often due to neglect, a lack a parental supervision, and/or where the youth has experienced a family crisis). Often this youth is not necessarily someone with criminal tendencies. The juvenile court may then treat this youth differently, by supervising and assisting without labeling the youth delinquent or subjecting him or her to the same harsh procedural requirements (e.g., criminal standards of proof) or dispositions (such as secure detention).

Under Section 1-2 of the 1989 BIA Tribal Juvenile Justice Code, the juvenile court has "exclusive and original jurisdiction" over all proceedings where an "Indian child residing in or domiciled on the reservation" is alleged to be a "juvenile offender" and where the child’s family is alleged to be "in-need-of-services" (a.k.a. FINS). Under Section 1-1 C (22) a "juvenile offender" is defined as a youth who commits a juvenile offense prior to his or her eighteenth birthday. A "juvenile offense" is defined as a criminal violation of the Law and Order Code committed by a person who was under the age of eighteen at the time the offense was committed (Section 1-1 C. (23)). Contrast this category with the FINS category. A FINS is defined as

• a family whose child has been habitually and without justification absent from school,
• a home where there has been a breakdown in the parent-child relationship such that they will not live together, and there is a clear and substantial danger to the child, or
• a situation in which the child or his family is in need of treatment or rehabilitation (Section 1-1 C. (14)).

These are essentially status offenses.

Section 1-2 Jurisdiction of the Juvenile Court 1989 BIA Tribal Juvenile Justice Code

Under the 1989 BIA Tribal Juvenile Justice Code, the process for handling FINS cases mirrors the process for handling juvenile offenses with some key differences. A request for services may be submitted by the youth; his or her parent, guardian, or custodian; a social services worker; or the juvenile counselor. The juvenile counselor is then responsible for assisting the family in accessing services.

A formal Family In Need of Services (FINS) petition may be filed with the juvenile court if necessary. It may be necessary to obtain a court order to access certain types of services and/or treatment. After a petition has been filed, the juvenile presenter or prosecutor may enter into a consent decree or an agreement with the youth and his or her family to suspend the court proceedings to give the youth and the family time to successfully complete certain services or programs. If successful, the petition may be dismissed. If unsuccessful, the juvenile court process resumes and a hearing is scheduled.

The purpose of the FINS adjudicatory hearing is for the judge to determine whether there is "clear and convincing evidence" that the family is a "family-in-need-of-services." If there is sufficient evidence to decide that this is the case, a disposition hearing is scheduled. The purpose of a FINS disposition hearing is for the judge to determine the placement, services, supervision, and/or legal custody of the youth and to refer or order services, and so forth for the family. Placement of a FINS youth in a "juvenile shelter care facility" is permitted but cannot exceed thirty days. A "juvenile shelter care facility" is defined as "any juvenile facility, other than a school, that cares for juveniles or restricts their movement," including an alcohol or substance abuse emergency shelter, halfway house, foster home, emergency foster home, group home, and shelter home. The 1989 BIA Tribal Juvenile Justice Code prohibits the confinement of a FINS youth in "an institution established for . . . juvenile offenders" or "a penal institution . . . used for the execution of sentences of persons convicted of crimes."

Section 1-17 Family in Need of Services - Initiation of Proceedings 1989 BIA Tribal Juvenile Justice Code

Under the 1989 BIA Tribal Juvenile Justice Code, in order for a formal FINS petition to be granted by a judge, the petitioner must allege either that there is a breakdown in the parent-child relationship or that there are school absences. In the case of a breakdown in the parent-child relationship, the petitioner must allege that the family is a FINS; that the petitioner has exhausted or the youth/family has refused appropriate and available services; the youth/family have participated in counseling or refused to participate in counseling; the youth has been placed in the home of a relative or the youth has refused to be so placed; the youth has sought assistance at a juvenile shelter care facility or has refused such assistance; and the youth has been placed in a foster home or refused such placement.

1-17 H. Petition-Additional Required Allegations for Breakdown in the Parent- Child Relationship 1989 BIA Tribal Juvenile Justice Code

Under the 1989 BIA Tribal Juvenile Justice Code, in order for a formal FINS petition to be granted by a judge, the petitioner must allege either that there is a breakdown in the parent-child relationship or that there are school absences. In the case of alleged school absences (that are "habitual and unjustifiable"), the petitioner must allege that the family is a FINS, and a school official must file a declaration including the following allegations:

1. The school held a meeting to discuss the absences and the parent, guardian, or custodian refused to attend;
2. The school provided an opportunity for counseling or an opportunity to enroll in an alternative education program (if available);
3. The school has reviewed the child’s status to determine whether learning problems exist and steps have been taken to overcome them;
4. A social worker has conducted an investigation to determine whether social problems may be a cause and if they are, appropriate action is taken; and
5. The school has sought assistance from appropriate agencies or has referred the matter to a social services agency for coordinating agencies and resources.

1-17 G. Petition--Additional Required Allegations for School Absence 1989 BIA Tribal Juvenile Justice Code

[21.3] Tribal Code Commentary

See Chapters 22 and 24 through 27 for detailed tribal code commentary on the separate topics of Family in Need of Services (FINS) interim care, FINS referral to juvenile counselor, FINS breakdown in parent-child relationship, FINS consent decrees, and FINS dispositions.

[21.4] Exercises

The following exercises are meant to guide you in developing the general FINS sections of the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing FINS or a comparable designation.
  • First determine whether these provisions govern child abuse/neglect or juvenile delinquency/status offenses—if child abuse/neglect, you may be in the wrong code
• Make a list of the types of (mis)conduct and/or circumstances that constitute a FINS or "status offense"
  • Truancy?
  • Curfew violations?
  • Running away?
  • Incorrigibility?
  • Substance use?
  • Other?
• Check the "disposition" provisions of your juvenile code. Do they apply the same disposition alternatives to FINS youth and status offenders as they do to juvenile delinquents/offenders?
• Are your FINS youth/status offenders subject to secure juvenile detention?

Read and Discuss*

The experience of the states and New York’s innovative approach:

• The states have a long history of detaining status offenders, for example, placing chronically truant or runaway youth in secure detention facilities
• Several states have enacted "children in need of services" ("CHINS") type processes to replace the status offender label and to create new social services or probation services for youth
• Today juvenile offenses laws vary greatly from JINS (Juveniles In Need of Supervision), CINA (Child In Need of Assistance), FINS, etc.
• New York’s approach is to provide services first:
  • Early assessment of New York’s approach indicates that such programs can result in fewer youth becoming court involved and more youth remaining at home
  • The New York statute requires state agencies to focus on family services first for "persons in need of supervision" ("PINS")
  • The New York courts cannot accept a PINS petition unless the petitioner has already participated in family services
  • The statute requires that state agencies document their efforts to enroll youth and their families in appropriate, individualized community services which must include . . .
    • Providing families with information on local services that will alleviate the need to file a petition (short-term respite care, family crisis counseling, and dispute resolution programs, etc.)
    • Holding at least one conference with the youth and the family to discuss alternatives to filing a petition
    • Assessing whether the youth would benefit from residential respite care
    • Recording and analyzing whether diversion services are needed and whether they should be offered on an ongoing basis
    • A petition can be filed only if the agency indicates that it has terminated diversion services because there was not substantial likelihood that the youth or his or her family will benefit from further attempts

*Taken from Jessica R. Kendall, Juvenile Status Offenses: Treatment and Early Intervention, Chicago, IL: American Bar Association, Division for Public Education, (2007).

Chapter 22: Nondelinquency Proceedings— Family in Need of Services (FINS) Interim Care

[22.1] Overview

Interim care in the state systems has to do with preadjudication or pretrial detention.[33] In the state systems there has been a long history of detaining both status offenders and juvenile offenders, and sadly even abandoned or maltreated children, in secure juvenile detention facilities, sometimes before a juvenile court has even exercised its jurisdiction over the youth. The 1989 Tribal Juvenile Justice Code provisions would remedy such practices and prevent harm to status offenders (a.k.a. "FINS eligible youth") by authorizing taking them into custody only under certain circumstances (where there is a substantial danger to the youth’s physical safety or where they have run away from a placement) and limiting their placement to juvenile shelter care facilities.

[22.3] Tribal Code Commentary

Interim Care. The Sault Ste. Marie statute omits the entire "FINS Interim Care" portion of the 1989 BIA Tribal Juvenile Justice Code at Subchapter 1-16. This subchapter prohibits taking a FINS youth into custody unless it is for purposes of "interim care" and where a law enforcement officer either has reasonable grounds to believe that the youth is in substantial danger or where an agency has reported that the youth has run away from a placement. In these instances the provisions require that the law enforcement officer tell the youth why he or she is being taken into custody, arrange for placement, and notify the youth’s family. The provisions limit involuntary interim care to forty-eight hours.

A FINS youth in interim care cannot be placed in a jail, and if placed with juvenile offenders, he or she must be detained in a separate room. The youth cannot be transported with adults under arrest. The provisions also specify that the youth and his or her family must be offered social services. Finally, if it is possible, the youth should be returned home, otherwise the juvenile counselor must offer "shelter in an appropriate juvenile shelter care facility . . . which is located as close as possible to the residence. . . ." Sault Ste. Marie’s omission of the interim care provisions suggests that the tribe will permit status offenders to be taken into custody and detained like and with juvenile offenders. This is likely due to insufficient options and resources, but it is not recommended as it does not sufficiently protect mere status offending youth.

[22.4] Exercises

The following exercises are meant to guide you in writing the interim care section of the tribal juvenile code. The following exercises are meant to guide you in developing the FINS interim care sections of the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing interim care (placements for youth before they are brought to a juvenile court hearing). What are the required placement options and time limits for placement?
• Make a list of actual available, temporary, placement options for youth prior to court hearings in your community.
• In other jurisdictions they have "respite care" placements—temporary out-of-home placements for youth with services and programing for youth and their families. Make a list of the pros and cons for a respite care program in your community.

Read and Discuss*

Does the following description of past state practices sound familiar?

"The detention of juveniles prior to adjudication or disposition of their cases represents one of the most serious problems in the administration of juvenile justice. The problem is characterized by the very large numbers of juveniles incarcerated during this stage annually, the harsh conditions under which they are held, the high costs of such detention, and the harmful after-effects detention produces. These difficulties are caused or compounded by profound defects in the system of juvenile justice itself: the inadequacy of the information and the decision-making process that leads to detention, in the delays between arrest and ultimate disposition, and in the lack of visibility and accountability that pervades the process."

*Taken from Standards Relating to Interim Status: Re Release, Control, and Detention of Accused Juvenile Offenders between Arrest and Detention, Chicago: American Bar Association, (1979).

Chapter 23: Nondelinquency Proceedings—Stand-Alone Status Offenses

[23.1] Overview

In the state systems, state and federal policy makers have sought to distinguish youth who commit status offenses from youth who commit delinquent acts.[34] Status offenses are nondelinquent, noncriminal infractions that would not be offenses if the youth were an adult. They include running away, truancy, alcohol or tobacco possession, curfew violations, and circumstances in which youth are found to be beyond the control of their parent/guardian(s)—often called "ungovernability" or "incorrigibility." Experts argue that status offenses are symptomatic of underlying personal, familial, community, and systemic issues, and unmet and unaddressed needs. Until the mid-1970s, the state juvenile delinquency systems handled status offenses that subjected youth to the same dispositional and probationary alternatives, including incarceration. However, many became concerned about the short- and long-term effects of detaining and institutionalizing nondelinquent youth. In 1974, Congress encouraged states toward decriminalizing status offenses by enacting the Juvenile Justice and Delinquency Prevention Act (JJDPA). States receiving federal grants under the JJDPA agreed to prohibit the locked placement of youth charged with status offenses and pledged to reform their systems so that these youth and their families would receive family and community-based services. Nevertheless, every year, thousands of youth charged with only status offenses are placed in locked detention. Research has since proven that the secure detention of status offenders is both ineffective and dangerous:

"Research and evidence-based approaches have proven that secure detention of status offenders is ineffective and frequently dangerous. Specifically research has shown that:

• Detention facilities are often ill-equipped to address the underlying causes of status offenses.
• Detention does not serve as a deterrent to subsequent status-offending and/or delinquent behavior.
• Detained youth are often held in overcrowded, understaffed facilities—environments that can breed violence and exacerbate unmet needs.
• Almost 20 percent of detained status offenders and other non-offenders (e.g., youth involved with the child welfare system) are placed in living quarters with youth who have committed murder or manslaughter and 25 percent are placed in units with felony sex offenders.
• Placing youth who commit status offenses in locked detention facilities jeopardizes their safety and well-being, and may increase the likelihood of delinquent or criminal behavior.
• Removing youth from their families and communities prohibits them from developing the strong social networks and support systems necessary to transition successfully from adolescence to adulthood."[35]

Courts nationwide are overburdened and slow to respond. They are not equipped to assess the underlying circumstances that result in a status offense and judges have few options and the court process is expensive. In the early 2000s state officials began experimenting with alternatives to processing status offenders in family and juvenile courts. A new paradigm emerged connecting families with services in their communities. This approach is grounded in the understanding that families can resolve the problems with guidance and support. Recent studies show responding to kids at home and in their communities is more cost-effective, developmentally appropriate, and more ethical than incarceration when a there is no public-safety risk. In 2005 the Connecticut legislature prohibited the use of secure detention for status offenders. That year New York State narrowed the circumstances under which status offenders can be placed in even nonsecure detention facilities. Successful community-based responses have been established in Florida, New York State, Louisiana, and Washington State.[36]

The hallmarks of an effective community-based system include:

1. Diversion from court. Keeping kids out of court requires having mechanisms in place that actively steer families away from the juvenile justice system and toward community-based services.
2. An immediate response. Families trying to cope with behaviors that are considered status offenses may need assistance right away from trained professionals who can work with them, often in their home, to de-escalate the situation. In some cases, families also benefit from a cool-down period in which the young person spends a few nights outside the home is a respite center.
3. A triage process. Through careful screening and assessment, the effective systems identify needs and tailor services accordingly. Some families require only brief and minimal intervention—a caring adult to listen and help the family navigate the issues at hand. At the other end of the spectrum are families that need intensive and ongoing support and services to resolve problems.
4. Services that are accessible and effective. Easy access is key. If services are far away, alienating, costly, or otherwise difficult to use, families may opt out before they can meaningfully address their needs. Equally important, local services must engage the entire family, not just the youth, and be proven to work based upon objective evidence.
5. Internal assessment. Regardless of how well new practices are designed and implemented, there are bound to be some that run more smoothly than others, at least at first. Monitoring outcomes and adjusting practices as needed are essential to be effective and also to sustain support for new practices."[37]

Many if not most tribes funnel status offenses through their juvenile justice systems where out-of-home placements and even secure detention are likely results. Most of these systems use a standalone status offense approach, in contrast to a FINS-type process. The standalone status offense approach is when a tribe defines a list of status offenses and provides for a civil adjudication in name. However, it is a quasicriminal trial-like process to determine guilt. The process provides a range of dispositions, applied in a probation format, for youth as an alternative to adult criminal sanctions. Proponents of the FINS approach argue that the standalone "status offender" approach unnecessarily labels and stigmatizes youth (e.g., truants and runaways) as "offenders." They further argue that the status offender approach fails to statutorily require tribal and other agencies to provide critical services to youth and their families before permitting the filing of petitions in tribal court, and it may fail to adequately authorize tribal court jurisdiction and powers over parents and other important family members. However, it would be workable to apply the FINS court process to youth defined to be status offenders so that youth and their families benefit from family targeted and timely therapeutic interventions. This may be particularly important in tribal communities where most families are low income and where access to necessary counseling and mental health treatment may be available only through court order.

Because so many tribes use a standalone status offense approach we include examples in the following text. If used, this approach should be modified to include the FINS-type protections and interventions for youth and their families and for court jurisdiction and powers over family members.

[23.2] Tribal Code Examples
 

[23.3] Tribal Code Commentary

Here we provide two examples of how tribes have handled status offenses. The Eastern Band of Cherokee code establishes what is considered the standard list of status offenses. Specifically, it defines an "undisciplined juvenile" as a juvenile who is "unlawfully absent from school," "regularly disobedient and beyond disciplinary control," "found in places where it is unlawful for a juvenile to be," "who purchases, possesses, consumes, or receives a tobacco product," or "who has run away from home." In contrast, the Native Village of Barrow code defines a comprehensive list of "delinquent acts" but singles out a separate list where "the juvenile court may not order secure detention." These include:

• Possession, consumption, or being under the influence of alcoholic beverages;
• Possession or use of tobacco;
• Soliciting supply (of cigarettes, cigars, tobacco, controlled substances, or alcoholic beverages);
• Sexual conduct with a juvenile;
• Operating an amusement device;
• Entering restricted places (public building where alcoholic beverages are sold, distributed, or served);
• Pulltab and bingo activities;
• Driving without a license;
• Underage driving; and
• Curfew violations.

In defining status offenses it would be helpful for tribes to work closely with their treatment and youth services professionals to identify and define youth conduct that merits tribal juvenile court intervention for purposes of youth and family habilitation and rehabilitation. Status offenses should be defined with available services in mind to avoid involving youth in the system where remedial services are lacking for their identified need areas.

Of the twenty-five tribal juvenile statutes reviewed, nine contained either a FINS-type system or used a list of status offenses as part of their nondelinquency process (the delinquency process deals with juvenile offenses—that would be criminal violations if they were committed by adults). A subset of the twenty-five blends their FINS and status offender categories with their dependent children category (i.e., the court process that deals with maltreated children—those abandoned, abused, and/or neglected). This is not recommended as the purpose and process of these systems are different in important ways. The consolidated list of FINS criteria and status offenses includes (see the following table for source):

• Absence from home/"runaway";
• Absence from school/"truancy";
• Curfew violations;
• Disobeys parents, guardian, or custodian/"unamenable to parental control";
• Disorderly conduct;*
• Endangers morals or health of self or others;
• Loitering about games of chance;
• Loitering about liquor establishment;
• Motor vehicle violations;
• Possession/consumption of alcohol;
• Possession/consumption of controlled substances;*
• Use of inhalants; and
• Use of over-the-counter-drugs.

*Technically a "criminal offense" versus a "status offense" in many tribes’ criminal statutes but singled out for treatment under a FINS- or status offense–type process in these tribes’ juvenile statutes.

[23.4] Exercises

The following exercises are meant to guide you in writing the status offender section of the tribal juvenile code.

• Find and examine your juvenile code’s provisions defining "delinquent act," "juvenile offense," "juvenile crime," "status offense," and/or FINS or some variant. List the conduct or misconduct targeted.
• Identify which of these are true "status offenses" (conduct or misconduct that is not criminal and that may only be committed by a minor, e.g., truancy, curfew violations, running away, and possession and use of tobacco/inhalants)?
• Find and examine your juvenile code’s "disposition" section. Does your juvenile code treat juvenile offenders and status offenders the same?
• Make a list of the status offenses you wish to target.

Read and Discuss*

How should tribes deal with "status offenders"?

In juvenile cases, a "status offense" involves conduct that would not be a crime if it was committed by an adult —in other words, the actions are considered to be a violation of the law only because of the youth’s status as a minor (typically anyone under eighteen years of age).

Types of Status Offenses

The kind of conduct that might constitute a status offense varies by state. The most common status offenses include:

• truancy (skipping school),
• violating a city or county curfew,
• underage possession and consumption of alcohol,
• underage possession and use of tobacco,
• running away, and
• ungovernability (being beyond the control of parents or guardians).

How States Handle Status Offenses

Traditionally, status offenses were handled exclusively through the juvenile justice system. But in the 1960s and 1970s, many states began to view status offense violations as a warning signal that a child needed better supervision or some other type of assistance to avoid future run-ins with the law. This view is grounded in fact—research has linked status offenses to later delinquency.

For the most part, state goals in dealing with status offenses became threefold:

• to preserve families,
• to ensure public safety, and
• to prevent young people from becoming delinquent or committing crimes in the future.

In this vein, the 1974 Juvenile Justice and Delinquency Prevention Act emphasized "deinstitutionalizing" status offenses. This meant giving prosecutors broad discretion to divert status offense cases away from juvenile court and toward other government agencies that could better provide services to at-risk juveniles. Diverting a case before a delinquency petition was filed also allowed a young person to avoid the delinquent label—some believed that label itself impeded a juvenile’s chances for rehabilitation.

In 1997, only one in five status offense cases were formally processed by the courts, and even fewer status offense cases actually made it to juvenile court in the first place. That’s because law enforcement officers are less likely to refer status offense cases to juvenile court, compared with delinquency cases. Of those status offense cases that do get referred, 94% involve liquor law violations.

Today, most states refer to status offenders as "children or juveniles in need of supervision, services, or care." A few states designate some status offenders as "dependent" or "neglected children," and give responsibility for these young people over to state child welfare programs.

States approach status offenses in a number of different ways. In some states, a child who commits a status offense may end up in juvenile court. In other jurisdictions, the state’s child welfare agency is the first to deal with the problem. Some states have increased the use of residential placement for offenders, and others emphasize community-based programs. But, in all states, if informal efforts and programs fail to remedy the problem, the young person will end up in juvenile court.

*Taken from NOLO, Juvenile Law: Status Offenses.

Chapter 24: Nondelinquency Proceedings—Family in Need of Services (FINS) Referral to Juvenile Counselor

[24.1] Overview

A Family in Need of Services (FINS) referral requirement to a juvenile counselor statutorily requires that FINS eligible youth and their families receive appropriate and available services before a FINS petition may be filed in the tribal juvenile court.[50]

[24.3] Tribal Code Commentary

Referral of Requests to Juvenile Counselor—The Sault Ste. Marie statute omits 1989 BIA Tribal Juvenile Justice Code Section 1-17 B:

Requests stating that a family is "in need of services" shall be referred to the juvenile counselor, who shall assist either a child or a child’s parent, guardian, or custodian in obtaining appropriate and available services as well as assisting in any subsequent filing of a petition alleging that the family is "in need of services." (Emphasis added.)

The 1989 BIA Tribal Juvenile Justice Code at Section 1-17 mandates that FINS youth be referred to a juvenile counselor who must assist the youth and his or her parents (or guardian or custodian) in accessing needed services. It would appear under the Sault Ste. Marie statute that the juvenile probation officer is not mandated to provide services to an allegedly status offending youth and his or her family short of direction from a court order. Consistent with the evidence-based trend for working with status offenders to divert them from juvenile court process to community-based services whenever possible, the model code provision is recommended as it provides an additional diversion point and mandate for a juvenile justice system officer to provide access to services.

[24.4] Exercises

The following exercises are meant to guide you in writing the "referral to juvenile counselor" section of the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing juvenile counselors and/or juvenile probation officers. Does your juvenile code set out a process for their intake and handling of youth? If you can, flow chart it.
• Make a list of the services juvenile counselors and/or juvenile probation officers are required to provide to, or refer for, youth.
• Make a list of the services and programs you would like to develop or contract for and make subject to the juvenile counselor’s and/or juvenile probation officer’s intake/referral/supervision process.

Read and Discuss*

Should you be lobbying your tribal councils and Congress to provide funding for comprehensive precourt services for youth and their families? And/or do you need to reform our existing service array?

Hillsborough County, Florida
Children in Need of Services/Families in Need of Services Program (CINS/FINS)

Goal . . .

The goal of both the residential and nonresidential Children in Need of Services/Families in Need of Services (CINS/FINS) Program is to reduce juvenile crime while assisting, supporting, and strengthening the youth and families in Hillsborough County.

Mission . . .

The mission of CINS/FINS Program is to provide the highest quality care and treatment for the youth and families we serve every day.

Program Components . . .

The Hillsborough County CINS/FINS Program has two components: residential and nonresidential services, designed to help families whose youth exhibit risk factors that make them more susceptible to becoming involved with Juvenile Delinquency or Dependency system.

Youth Served . . .

The youth served in the CINS/FINS program are youth that have not been adjudicated delinquent and who have not been adjudicated dependent, but are at risk for adjudication without intervention services. These risk factors include school problems and truancy, family behavioral problems and ungovernability, runaway behaviors or homelessness, poor peer relations, and or the use of drugs and/or alcohol.

(CINS/FINS) Residential Program

• Youth that are experiencing significant issues within the home
• Youth that need a safe place to stay
• A short-term residential respite program which offers a youth an average length stay of 14 days for youth ages 10 to 17
• Youth receive . . .
  • individual, group and family counseling
  • milieu services to help youth learn more appropriate behavior and participate in family life without resorting to ungovernable behavior
  • a physical health screening and mental status exam
  • educational support
  • a variety of community overlay services
  • behavioral incentives and recognition opportunities

(CINS/FINS) Non-Residential Program

• Youth and families may also receive help in a community setting
• Trained counselors provide individual and family therapy to youth ages 7 to 17 at sites throughout Hillsborough County with flexible daytime and evening hours
• A nationwide system of Safe Place sites where runaway youth may request services at designated sites throughout Hillsborough County and receive free transportation to the CINS/FINS shelter
• Case Staffing Committee where parents may file a Seven-Day Letter which is a formal document to request their child’s case be brought to the attention of a judge

Screening for services is available 24 hours a day for the CINS/FINS Residential Program and Monday through Friday, 8:00 am to 5:00 pm, for the CINS/FINS Non-Residential Program.

*Taken from the Hillsborough County (Florida) Government website.

Chapter 25: Nondelinquency Proceedings—Family in Need of Services (FINS) Breakdown in Parent-Child Relationship

[25.1] Overview

The 1989 BIA Tribal Juvenile Justice Code’s Family in Need of Services (FINS) provisions include youth conduct that would be labeled as "incorrigible," "unmanageable," "ungovernable," or "unruly," in other jurisdictions.[39] The preferred label, "ungovernable" is defined as being beyond the control of parents, guardians, or custodians or being disobedient of parental authority. Ungovernability is a single unifying description for a broad number of delinquent acts. Some argue that the state governments have left the definition intentionally vague in order to have more power over "ungovernable youth." However, it is generally accepted that it is not appropriate to charge every youth who fails to comply with the requests of his or her parent as "ungovernable." Rather it is appropriate to do so when the continued disobedience may cause harm to the youth or another person. Common problems stemming from ungovernability include running away, truancy, or breaking curfew. The juvenile justice system may be able to help a parent whose child continuously exhibits:

• Serious and deliberate threats of physical harm to family members;
• Acts of intimidation toward household members;
• Deliberate injury to home structures, grounds, furnishings, or pets;
• Serious and repeated violations of curfew; and/or
• Refusing to go to school.

Parental conduct demonstrating that a parent does not have the basic tools to deal with misbehavior in a healthy fashion may include:

• A lack of time,
• An authoritative parenting style,
• Abuse, and/or
• Alcohol or drug use within the home.

The 1989 BIA Tribal Juvenile Justice Code provisions reject the "incorrigible" or "ungovernable" language and opt instead to provide FINS jurisdiction over two categories: (1) a child that is "habitually and without justification absent from school," and (2) where there is "a breakdown in the parent-child relationship." The 1989 BIA Tribal Juvenile Justice Code at Section 1-1 C.14, defines "Family-in-Need-of-Services" to include, "a family wherein there is allegedly a breakdown in the parent-child relationship based upon the refusal of the parents, guardian, or custodian to permit a child to live with them or based upon the child’s refusal to live with his parents, guardian or custodian." However, the code further requires that "the conduct . . . presents a clear and substantial danger to the child’s life or health . . . ; or the child and his family are in need of treatment, rehabilitation, or services. . . ." This appears to ensure that FINS petitions will not be filed against youth who are merely "acting like teenagers."

It may be helpful to review Section 3.2 (M) Support for Parents in the overview.

[25.4] Tribal Code Commentary

The Sault Ste. Marie statute at Section 36.502 (5) reads:

"In addition to the allegations required under subsection (3) of this Chapter, a petition alleging that the child is incorrigible (emphasis added) shall also allege that the filing of the petition was preceded by complying with each of the following that are applicable and appropriate:

1. The child and his family have participated in counseling or either the child or his family has refused to participate in family counseling;
2. The child has been placed in the home of a relative, if available, or the child has refused placement in the home of a relative."

Compare 1989 BIA Tribal Juvenile Justice Code Section 1-17 H:

In addition to the allegations required under section 1-17 F of this code, a petition alleging that there is a breakdown in the parent-child relationship (emphasis added) shall also allege that the filing of the petition was preceded by complying with each of the following that are applicable and appropriate:

1. the child and his family have participated in counseling or either the child or his family has refused to participate in family counseling;
2. the child has been placed in the home of a relative, if available, or the child has refused placement in the home of a relative;
3. the child has sought assistance at an appropriate juvenile shelter care facility for runaways or the child has refused assistance from such a facility; and (emphasis added)
4. the child has been placed in a foster home or the child has refused placement in a foster home. (emphasis added)

The Sault Ste. Marie statute replaces the 1989 BIA Tribal Juvenile Justice Code’s "breakdown in the parent-child relationship" with being "incorrigible," which it defines at Section 36.301 to mean "a child who is repeatedly disobedient to the reasonable and lawful commands of his or her parents, guardian, or custodian." The 1989 BIA Tribal Juvenile Justice Code does not define a "breakdown in the parent-child relationship" but under its definition of "Family in Need of Services" at Section 1-1 C (14), the juvenile court, under its FINS process, has jurisdiction over:

a family wherein there is allegedly a breakdown in the parent-child relationship based on the refusal of the parents, guardian, or custodian to permit a child to live with them or based on the child’s refusal to live with his parents, guardian, or custodian . . .

Both provisions target conduct resulting in the difficulty of the youth and his or her parents, guardian, or custodian to live together. The 1989 BIA Tribal Juvenile Justice Code language redirects blame away from the youth and looks to the detrimental status—an inability to continue living together. This may be preferred where the targeted behaviors may range from a youth physically abusing his or her parent to refusing to consistently follow a parent imposed curfew, to prolonged verbal fighting between family members. There may not be an easy way to identify bad conduct where there are deeply strained underlying family dynamics.

1989 BIA Tribal Juvenile Justice Code Section 1-17 H also requires additional allegations in petitions that the Sault Ste. Marie statute omits when it comes to status offenders—a required additional allegation that the youth has sought or refused services at a shelter or has been placed or refused placement in a foster home. This "additional allegation" requirement puts the judge on notice of what has been attempted and where the youth is currently placed (or not). It is likely that Sault Ste. Marie, at the time their statute was drafted, lacked a shelter or foster home system.

[25.5] Exercises

The following exercises are meant to guide you in writing the FINS "breakdown in the parent-child relationship" section of the tribal juvenile code.

• Find and examine your juvenile code’s provisions defining "incorrigible," "ungovernable," or any conduct, misconduct, or circumstances where youth and their parents/guardians are not getting along. What conduct/misconduct/circumstances are targeted?
• Find and examine your juvenile code’s provisions defining truancy, curfew violation, running away, possession/use of tobacco and/or inhalants. What conduct/misconduct/circumstances are targeted?
• Make a list of the services that you have that will support youth and families with these problems.
• What ideal list of conduct/misconduct/circumstances should be targeted and what services will you need that you do not have?

Read and Discuss*

How do we fix "ungovernable" youth?

Research on the contributing factors of ungovernable behavior often focuses on . . .

• the relationship dynamics between a youth and his or her family
  • family is the key factor in the prosocial development of youth
  • family dysfunction is an important influence on future delinquent and antisocial behavior
  • interventions improving family functioning to reduce problem behaviors include . . .
    • family skills training
    • family education
    • family therapy
    • family services
    • family preservation programs
• parental behaviors and practices
  • parents are the most critical factor in the social development of children—the following buffer youth against problem behaviors . . .
    • supportive parent-child relationships
    • positive discipline methods
    • close monitoring and supervision
    • parental advocacy for their children
    • parental pursuit of needed information and support
  • interventions to improve fundamental parenting practices include . . .
    • behavioral parent training
    • parent education
    • parent support groups
    • in-home parent education or parent aid
    • parent involvement in youth groups
• presence of caring, supportive adults in the youth’s life provide youth with someone to relate to and the ability to be in a relationship . . .
  • at risk youth who are involved with at least one caring adult are more likely to withstand the range of negative influences . . .
    • poverty
    • parental addiction
    • family mental illness
    • family discord
  • Mentoring programs reduce risk factors and enhance protective factors that buffer children from risk
    • They provide positive adult contact
    • They enhance healthy beliefs
    • They enhance opportunities for involvement
    • They reinforce appropriate behavior
    • They provide personal connectedness, supervision and guidance, skills training, career or cultural enrichment opportunities, a knowledge of spirituality and values, a sense of self-worth, and goals and hope for the future

*Taken from Ungovernable/Incorrigible Youth Literature Review, Development Services Group, Inc., (2009).

Chapter 26: Nondelinquency Proceedings— Family in Need of Services (FINS) Consent Decrees

[26.1] Overview

The 1989 BIA Tribal Juvenile Justice Code separates the court process for youth who are alleged to have committed juvenile acts from youth and families who are "in need of services." Youth in the latter category are handled under the Family in Need of Services (FINS) court process. This process, like the juvenile offense process, includes a consent decree possibility. That is, youth may be diverted from the full court process if they enter into a written agreement, a "consent decree," which is approved by the judge.

Under the 1989 BIA Tribal Juvenile Justice Code FINS Consent Decree process, once a petition alleging that a youth and his or her family is a FINS has been filed, and before the judge has ruled, someone may file a motion to undertake a consent decree. If the judge grants it, it may remain in effect for six months with a possible extension of an additional six months. If the youth and his or her family meet the terms and conditions of the consent decree, the original FINS petition will be dismissed. If the youth and his or her family fail to fulfill the express terms of the consent decree, the FINS petition may be reinstated and proceed through the FINS court process.

[26.3] Tribal Code Commentary

None of the tribal juvenile codes reviewed contained a consent decree process.

Consent decrees—The Sault Ste. Marie juvenile code, reviewed extensively throughout this resource as an example, omits the consent decree process of the 1989 BIA Tribal Juvenile Justice Code found at Subchapter 1-8. Given current research and policy trends, it is best to provide as many diversion points as possible within both the "juvenile offender" and "status offender"/"FINS" processes. The thinking is that allegedly status-offending or FINS youth may not be as culpable and/or are not necessarily on a track to criminal offending and thus should not be mixed either with the juvenile offender population or the adult criminal population in order to protect them from harm and to preserve their potential good prospects.

[26.4] Exercises

The following exercises are meant to guide you in developing the FINS consent decree sections of the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing FINS. Does it contain a consent decree provision?
  • If yes, what services or programs are required/available using a consent decree?
  • If no, what services or programs would you want to be available to youth before a formal hearing or adjudication using a consent decree?
• Make a list of the pros and cons of using consent decrees for status offenders and FINS youth to avoid formal hearings or adjudication.

Read and Discuss

What does a judge oversee when a youth agrees to be a party to a consent decree? What should happen when the youth violates it? Who can best advise the judge on what decision the judge should make in your system?

Consent decree review orders contain the following information . . .

• Court Findings
  • Youth is making satisfactory progress in meeting the terms and conditions of the consent decree;
  • Youth is making unsatisfactory progress;
  • Youth is in violation of the consent decree; and/or
  • Youth has satisfied the terms and conditions of the consent decree.
• Order(s) to the Youth/Family
  • Youth to remain on the consent decree;
  • Consent decree should be extended;
  • Consent decree should be modified;
  • Youth to be released due to program completion and case closed; and/or
  • Consent decree to be revoked and a petition alleging that the youth has committed a juvenile offense reinstated.
• Additional Programs and Conditions
  • No change;
  • New programs and conditions; or
  • Vacate programs and conditions.
• Education, Health Care, and Disability
  • __________ is appointed as the youth’s educational decision maker to ensure the stability and appropriateness of his or her education.
  • Youth shall undergo the following evaluations, tests, counseling, and treatment: __________.
• Shared Responsibility
  • Case management responsibility is to be shared by the following agencies: __________.
  • The lead officer and agency are: __________.
• Order(s) to the Juvenile Probation Officer
  • The juvenile probation officer is directed to complete the following evaluations and report: _________.
• The next scheduled court hearing is: _________.

Chapter 27: Nondelinquency Proceedings— Family in Need of Services (FINS) Dispositions

[27.1] Overview

Under the 1989 BIA Tribal Juvenile Justice Code FINS parties (status offenders and their families) are subject to more limited disposition alternatives than would be juvenile offenders.[40] For example, they are not found to be offenders of any type, they are not subject to secure detention, they are not subject to "probation," and the court orders are of a more limited duration (e.g., six months maximum). The goal of the FINS process is to identify risky behaviors and/or need areas and to use the tribal court process to intervene to provide services to the youth and his or her family members. The goal is not to adjudicate the guilt of an offender or to punish for an offense. FINS youth (a.k.a. "status offenders") have not committed any juvenile offenses or crimes and should not be stigmatized as offenders.

[27.4] Tribal Code Commentary

The 1989 BIA Tribal Juvenile Justice Code at Section 1-19 F sets out the disposition alternatives for Family in Need of Services (FINS) youth and their families. Specifically, the provision focuses on placing the youth; on the provision of social, counseling, and treatment services; and "those conditions and limitations the court may prescribe." The FINS court orders are only effective for up to six months and placement orders "in an appropriate juvenile shelter care facility" are limited to a maximum of 120 days. All FINS orders terminate automatically when the youth reaches the age of eighteen.

Contrast the 1989 BIA Tribal Juvenile Justice Code provisions with the dispositional alternatives of the Eastern Band of Cherokee, which defines its status offenders as "a juvenile adjudicated undisciplined." Similar to the FINS process, it includes placement provisions (supervision in own home, in custody of parent, guardian, custodian, relative, "other suitable person," residential agency, and facilities including the option of placing youth in the Cherokee Children’s Home). The Eastern Band of Cherokee code also includes a provision whereby a youth is placed under the protective supervision of a "court counselor" who assists the youth and family with social, medical, and educational services and who visits the family to assist the family in providing proper supervision and care. The maximum duration for such supervision is six months. Finally, the court may set conditions for the youth and his or her family members. These may include:

• Good behavior,
• School attendance,
• Maintaining passing grades,
• Not associating with specified persons/places,
• Curfew,
• Employment if not attending school, and
• Any other conditions.

The Eastern Band of Cherokee Code modifies the FINS process to hardwire in existing tribal services and positions, such as the Cherokee Children’s Home and the court counselor. Having such tribal services/positions targeted to assisting tribal youth who are involved with the tribal court is ideal.

[27.5] Exercises

The following exercises are meant to guide you in developing the FINS dispositions sections of the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing FINS/status offenders. Does your juvenile code have separate disposition provisions for FINS youth or status offenders than it does for juvenile delinquents/offenders?
  • Are FINS youth/status offenders subject to being put in secure juvenile detention facilities?
• Make a list of the pros and cons of mixing FINS youth/status offenders with juvenile delinquents/offenders in a juvenile facility (whether a secure detention facility or just a group home).
• Make a list of the placement/detention options for FINS youth/status offenders that you would like to develop or contract for in your community.

Read and Discuss*

Should status offenders be put in secure detention facilities?

"Status offenders do not require secure detention to ensure their compliance with court orders or to protect public safety. However, recent data indicate that one-third of all youth held in juvenile detention centers are detained for status offenses and technical violations of probation (Arthur, 2001). Detaining youth in facilities prior to adjudication should be an option of last resort only for serious, violent, and chronic offenders and for those who repeatedly fail to appear for scheduled court dates. Secure detention and confinement are almost never appropriate for status offenders and certain other small groups of offenders—those who are very young, vulnerable, first-time offenders; those charged with non-serious offenses; and those with active, involved parents or strong community-based support systems. . . . The public’s heightened concern about crime and the increased emphasis on juvenile accountability in the past two decades may have further contributed to the juvenile justice system’s reliance on secure detention and confinement for most juvenile offenders. Clearly, quality and accessible community-based alternatives must exist to enable the judicious use of expensive detention and confinement programs to meet the needs of both the juvenile offender and the community."

*Taken from James Austin, Kelly Dedel Johnson, and Ronald Weitzer, Alternatives to the Secure Detention and Confinement of Juvenile Offenders, OJJDP Juvenile Justice Bulletin (September 2005) p. 1.

Chapter 28: Nondelinquency Proceedings—Truancy Provisions

[28.1] Overview

In the state systems the juvenile courts have been handling truancy since the 1960s[41]. Today, truancy has become a substantial driver of status offense cases: "In 2010, truancy cases constituted 36 percent (nearly 50,000) of the estimated 137,000 petitioned status offense cases across the country."[42] Truancy stems from a student’s absence from school, as opposed to misconduct. The trigger for a finding of truancy is some set number of unexcused absences that vary state by state (can be anywhere from three to fifteen absences).

However, there is now a movement to use alternatives for arrest, court processing, and detention. State policy makers are seeing an unacceptable number of youth locked up for nonviolent, minor offenses. These include the "status offenses"—acts that are only considered criminal if committed by a juvenile (e.g., running away, truancy, curfew law violations, ungovernability or incorrigibility, and underage drinking violations). Research has shown a significant link between juvenile incarceration and negative outcomes for youth including increased risk of academic failure, dropping out of school, and future involvement in the juvenile and adult criminal justice systems.

Currently, juvenile justice leaders and practitioners are working with school administrators to shift the responsibility for addressing minor student misconduct away from the juvenile justice system and back to the school’s disciplinary systems. This includes launching school-justice partnerships to convene discussions about collaborative solutions to over referrals of cases involving minor student offenses to the courts.

Some state and local governments have established guidelines to help distinguish between offenses that do and do not merit referral to juvenile court. In cases in which school administrators must determine whether a student poses a serious safety threat to others, they may carry out a threat assessment.[43] Some court officials have developed written agreements describing steps that must precede a school-based referral to the juvenile court.[44] In some states policy makers have changed the laws to restrict school-based referrals by limiting youth’s eligibility criteria (e.g., raising the age limit for youth who may be subject to court jurisdiction for particular conduct).[45] Others have created more stringent statutory thresholds for invoking juvenile justice action for first offenders—for example, the law dictates that to refer a youth to juvenile court for a truancy offense, it must be his or her third charge of misconduct, and there must be evidence that each prior instance was met with a graduated school response.[46]

A large portion of school-based cases that come to juvenile courts involve truancy. Research suggests that sanction-based interventions are not effective, such as locating youth and getting them back to school with law enforcement, formal court processing, or school disciplinary measures. Instead a more effect intervention is to address the source of truant behavior with a multiagency response targeting the underlying unmet student and family needs (e.g., academic difficulty, family stress, and substance abuse). These interventions would include parent/guardian involvement, a continuum of supports and services, collaboration with community resources (including law enforcement, mental health services, mentoring, and social services), school administrative support, a commitment to keeping youth in the mainstream classroom, and ongoing evaluation. See, for example, the Stark County (OH) Truancy Mediation Program[47] and the Jefferson County (KY) Truancy Diversion Program.[48]

Juvenile courts and justice agencies should create alternative pathways and programs for students referred to the courts by establishing policies and partnerships. These alternatives should include rehabilitative supports and intervention without formal court involvement or confinement whenever possible. There are multiple points at which a student may be diverted from juvenile justice system processing, for example, from the point of referral (contact with school administrator) or point of arrest (contact with police). At these points the administrator or police office should have discretion to offer alternatives to arrest such as diversion to an alternative court (e.g., teen court, wellness court) or to a school, court, or community-based treatment or other program. See, for example, Florida’s "civil citation" alternative[49], Tennessee’s SHAPE program (a multisystem approach that offers mentoring, tutoring, counseling, community service, victim restitution support, and other individualized services),[50] Montgomery County Teen Court (eligible participants agree to have their case heard by a volunteer judge and a jury of their peers—a jury made up of high school student volunteers).[51]

Some of the tribal juvenile laws reviewed included the now disfavored sanction-based approach—using the juvenile court system to process truant youth. Others did not address truancy at all. See the tribal example in the following text.

[28.3] Tribal and State Code/MOU Commentary

Truants Processed in Tribal Juvenile Court Family in Need of Services (FINS-type Process). The Sault Ste. Marie statute contains a subchapter making school attendance compulsory and prohibiting truancy. Under the Sault Ste. Marie statute at Section 36.501 it is "a violation of this Chapter for a child to . . . commit a violation of subchapter . . . VI." Subchapter VI at Section 36.603 prohibits truancy: "Truancy by a tribal child living on the tribal lands is prohibited." The Sault Ste. Marie statute at Section 36.502 (1) further adopts the 1989 BIA Tribal Juvenile Justice Code requirements for making a request or filing a petition with the Juvenile Court:

"Requests stating that a juvenile has committed a status offense (emphasis added) pursuant to this subchapter may be submitted. . . . A request stating that a child is habitually and without justification absent from school may also be submitted by an authorized representative of a local school board or governing authority of a private school."

Section 36.606 brings truancy within the status offense jurisdiction of the Juvenile Court (as opposed to the "juvenile offender" jurisdiction): "The Juvenile Division shall have jurisdiction over cases brought to enforce this subchapter. Proceedings shall be conducted in accordance with the provisions of subchapter V." Subchapter V, entitled "Status Offenses," sets out the court process of youth alleged to be status offenders.

Children under 12/Conduct on School Property—Complaints Barred from Processing in Juvenile Court. The state of Texas, under its amended Code of Criminal Procedure and Education Code, has prohibited the juvenile court processing of complaints filed against youth under twelve where the conduct is alleged to have occurred on school property:

". . . a law enforcement officer may not issue a citation or file a complaint . . . for conduct by a child younger than 12 years of age that is alleged to have occurred on school property or on a vehicle owned or operated by a county or independent school district."

"A court shall dismiss a complaint or referral made by a school district . . . that is not made in compliance with [this section]."

School Zero-Tolerance Policies Do Not Include "Petty Acts of Misconduct." The State of Florida has amended its zero tolerance for crime policy to not require the reporting of petty acts of misconduct and misdemeanors to law enforcement agencies, and to encourage schools to use alternatives to address disruptive behavior such as restitution, civil citation, teen court, and restorative justice programs. See Section 1006.13 in the preceding text.

Use of "Juvenile Civil Citation Process." The state of Florida has also established a "civil citation process" that functions somewhat like a traffic ticket for youth. The program may be operated by a selected agency in coordination with the state attorney and local law enforcement agencies. Under this process law enforcement officers are empowered to issue citations to first-time misdemeanor offenders. The youth must admit to committing the misdemeanor and will be assessed up to fifty community service hours and be required to participate in intervention services as indicated by an assessment (including family counseling, urinalysis monitoring, and substance abuse and mental health treatment services). Copies of the citation are forwarded to the Juvenile Department. If the youth fails to report for an assignment, complete an assignment, or comply with intervention services, or if he or she commits a subsequent misdemeanor, the law enforcement officer will issue a report that the youth has committed a delinquent act. This report will be forwarded to the state attorney for the possible filing of a juvenile delinquency petition with the juvenile court. See Section 985.12 in the preceding text.

Use of "Juvenile Justice Collaborative Agreement." The Clayton County Juvenile Justice Collaborative Cooperative Agreement is an agreement among that county’s juvenile court, public school system, police departments, department of family and children services, district attorney, behavioral health services, and department of juvenile justice. The agreement governs how youth who are alleged to have committed delinquent acts on school premises are handled. The targeted conduct includes what are called "focused acts" including affray (noisy public fights), disrupting public school, disorderly conduct, obstruction of police (truancy and failure to obey law enforcement officer), and criminal trespass (with no property damage). The agreement sets up a warning and referral process for first- and second-time offenders. Students experience a system of graduated sanctions, disciplinary methods, and/or educational programming before a complaint is filed with the juvenile court. This includes possible referral to a school conflict diversion program. See excerpts from the Clayton County Juvenile Justice Collaborative Cooperative Agreement in the preceding text.

[28.4] Exercises

The following exercises are meant to guide you in developing the truancy sections of the tribal juvenile code and any interagency or intergovernmental agreements.

• Find and examine your juvenile code’s provisions governing truancy.
  • How is truancy defined?
  • What school, law enforcement, and/or court process is the youth subject to?
  • If the youth is processed in juvenile court which disposition alternatives is he or she subject to?
  • Are truants prohibited from being processed in juvenile court altogether?
• Make a list of the pros and cons of working with the school to exhaust its disciplinary and intervention process before cases might be allowed to come to the juvenile court.
• Make a list of the pros and cons of establishing a law enforcement civil citation process that diverts youth to a precourt diversion program (e.g., teen court).
• Make a list of the services and diversion programs that should be developed and/or contracted for in cooperation with the school and/or the juvenile court for truant youth and their families.

Read and Discuss*

What is "truancy"? Who is at fault? How can you stop it?

Truancy is a symptom of a range of underlying issues. These issues often relate to academic achievement:

• A teenager held back in middle school who sees no point in attending;
• An undiagnosed or mishandled special education need;
• A child who is failing and sees no hope;
• A child who is bullied or sees no social value in attending school.

Or, external barriers may block a child from attending:

• A lack of safe transportation to school or safety at school;
• The need to care for younger children or older relatives;
• Asthma or other medical conditions that have resulted in an extended absence; or
• A school that has not effectively communicated attendance policies and requirements with non-English-speaking parents.

Finally, truancy may be a symptom of larger breakdowns in the youth’s family life such as substance abuse, mental illness, or domestic violence.

*Taken from the ABA article by Claire Shubick, What Social Science Tells Us about Youth Who Commit Status Offenses: Practice Tips for Attorneys.

Chapter 29: Trauma-Sensitive Statutory Provisions

[29.1] Overview

In 2013 the Indian Law and Order Commission (ILOC) issued the report,[53] A Roadmap For Making Native America Safer, based upon its own hearings, and based in part upon hearings before the Attorney General’s National Task Force on Children Exposed to Violence.[54] The ILOC Report found that nationally, Indian youth are vulnerable and traumatized. They experience poverty, low graduation rates, a shorter life expectancy, and higher rates of cigarette use, binge drinking, and illegal drug use. They experience high rates of abuse and neglect and are also more likely to be subject to violent victimization. They are more likely to be placed in foster care. They have high rates of early, unexpected, and traumatic death. They have greater exposure to violence and loss and are at greater risk for experiencing trauma. Native women, including young women, experience high rates of sexual assault and domestic violence. Finally, Indian youth are overrepresented in the federal and state juvenile justice systems and receive the most severe dispositions.

The ILOC Report concluded that federal and state justice systems are making matters worse by subjecting Indian country youth to complex and inadequate regimes. The federal system, for example, has no specialized juvenile division tailored to handling juveniles. Very high percentages of tribal youth end up in federal detention, but these facilities lack any secondary education services. States also have significant and often disproportionate numbers of Indian country youth with no clear way of tracking them. Finally, at the tribal level, the U.S. attorneys often decline to prosecute juvenile cases leaving tribes with little infrastructure and funding to handle juveniles (e.g., housing, mental health services).

Given a review of publicly available tribal codes, it appears that when tribal courts do handle juvenile matters they lack an array of trauma-sensitive policy and legal approaches, trauma training for juvenile justice system actors, and access to professional services, including psychologists, psychiatrists, and others who are trained in providing the necessary assessments and treatment services.

Symptoms of trauma often include smoking, use of alcohol and/or drugs, and/or running away. Tribal juvenile court judges and justice system personnel may see juvenile offenses or even crimes in this conduct. Parents, teachers, and community members may perceive that youth who have trouble concentrating and learning, who are inactive, overweight, sexually promiscuous, or who are anxious, depressed, or suicidal are the "troubled or bad kids." What no one may see is that traumatized youth are experiencing numbing and avoidance, have increased anxiety or emotional arousal, have mood and memory problems, are reexperiencing intrusive memories, and may overreact to perceived threats and have trouble discriminating between safe and dangerous situations.[55]

Tribal youth advocates and juvenile justice system reformers make a number of recommendations for protecting and healing traumatized youth. These include the following:

• Provide training for tribal leaders, judges, justice system personnel, and service providers on youth and trauma;
• Mandate tribal court/judicial leadership in developing and coordinating trauma-focused programs;
• Take a hard look at the local provision of mental health services;
• Take a hard look at the local provision of respite care/housing (planned, short-term and time-limited breaks) for youth;
• Be careful not to overlook and foster existing community activities and programs that enhance resilience such as ceremonies, recreation programs, arts, mentorships, and vocational programs;
• Consider developing formal diversion programs such as family conferencing, mediation, wellness court, peacemaking court, teen court, and so forth;
• Consider the establishment of special units and specialists in social services and/or behavioral health departments such as "family advocates" and "family system navigators" who focus on a justice system involving youth with mental health issues;
• Ensure effective treatments for youth, including violent youth, with significant trauma histories;
• Provide training for judges and attorneys to improve justice system interactions with youth and their families who have experienced trauma;
• Review existing court process and practice to reduce potential traumatization or retraumatization (reduce trauma triggers);
• Require that trauma information be used appropriately at various stages in the juvenile and criminal justice systems to support diversion, the use self-defense claims, and as mitigating evidence in transfer, disposition, and sentencing;
• Mandate that tribal judges consider trauma when considering the often-conflicting duties to public safety and the best interests of youth;
• Ensure that trauma is accounted for in competency determinations and assessments regarding the voluntariness of confessions;
• Prohibit transfer of traumatized youth to adult criminal court; if allowed, amend criminal laws/procedures to mitigate sentencing due to trauma;
• Ensure that juvenile court dispositions provide treatment and do not inflict further harm to youth;
• Prohibit the use of "probation conditions" and "contempt orders" for traumatized youth who would likely violate conditions and where such violations would result in secure detention and retraumatization; and
• If traumatized youth are to be placed in secure detention, mandate that the judge consider the availability of mental health treatment in determining placement.

[29.8] Tribal Code Commentary

Purposes—Many purpose statements in juvenile statutes mandate that judges weigh the often-competing goals of "the best interests of the child" and "protection of the public safety" in determining how to handle and dispose of juvenile cases, for example, whether to return a youth home with treatment or to send a youth to a secure juvenile detention facility. The Wyoming Statute (WY Stat § 14-6-201(c)(ii)(a)) inserts a third required consideration—judges must recognize any distinctive behavior indicating that a youth has been victimized and whether he or she has a serious mental illness (e.g., depression or posttraumatic stress disorder [PTSD]) that requires treatment. Advocates for traumatized youth argue that traumatized youth require high-quality mental health interventions in a family and/or community setting and warn that secure detention must be avoided to prevent retraumatizing them. The sample tribal statutory language references "the provision of mental development" (Hopi and Leech Lake). The Eastern Band of Cherokee statute allows that "juveniles may remain in their own homes and may be treated through community-based services when this approach is consistent with the protection of the public safety." Similarly, Leech Lake states that its juvenile system and law is "to provide a continuum of services for children and their families from prevention to residential treatment, with emphasis whenever possible on prevention, early intervention and community-based alternatives." The Wyoming statutory language is preferable to the tribal statutory language here as it targets trauma victims and requires judges to distinguish and recognize "children who have been victimized or have disabilities, such as serious mental illness that requires treatment."

Determining Competence—We include the competency provisions of the Vermont Rule of Family Practice (V.R.F.P. 1(i)) here, although, none of the tribal juvenile statutes reviewed included or required a competency determination. The question of competency arises in determining whether a child or youth is competent to proceed in a juvenile delinquency proceeding. For example, a small child of four years old who bites his playmate would be incompetent to proceed in a juvenile delinquency proceeding as he would not be culpable for a bad act or capable of understanding or responding to the proceedings. Likewise, advocates for traumatized youth argue, some youth are too mentally ill to be culpable for the bad act for which they are charged (e.g., they were reacting to a perceived but not actual threat because they had PTSD) and/or they are not capable of understanding or responding to the juvenile justice proceedings (which may be targeted at accountability, restitution, and/or punishment). A tribal juvenile court should have a process and criteria for identifying these youth, dismissing these cases, and redirecting them to the dependency or other appropriate tribal court dockets. The Vermont rule provides that mental examinations be undertaken by court-selected psychologists or psychiatrists and requires the examiner to consider whether the youth suffers from a serious mental illness, among other factors. The rule requires that the report be sealed and filed with the juvenile court and disallows the use of any statements made by the youth as proof of his or her delinquency or for impeachment purposes. The rule further requires a competency hearing and dismissal of petitions before the juvenile court where a youth is found to be incompetent. The implications for tribal juvenile statutes are that some youth do not belong in juvenile court as they do not understand right and wrong in the given situation and will not respond to the accountability, reparations, and/or punishment mechanisms of the system given a current serious mental illness. Tribes adopting a competency screening provision for their delinquency systems should be careful to amend their dependency laws to assume jurisdiction over these youth and their families to provide needed protections, monitoring, services, and treatment.

Judicial Branch/Leadership—The Connecticut statute mandates that the judicial branch, in cooperation with the Department of Children and Families and the Department of Mental Health and Addiction Services, develop prevention and crime-reduction programs for juvenile offenders, including new programs providing a continuum of services. The programs are to be tailored to the juvenile, culturally appropriate, and trauma informed. They must also provide intensive general education with an individualized remediation plan for each juvenile, appropriate job training and employment opportunities, counseling sessions in anger management and nonviolent conflict resolution, treatment and prevention programs for alcohol and drug dependency, mental health screening, assessment and treatment, sex offender treatment, and services for families and juveniles. The judicial branch is also authorized to contract with secure residential facilities and highly supervised residential and nonresidential facilities for juveniles. The judicial branch is also mandated to collaborate with private residential facilities and community-based nonresidential postrelease programs. See the Section 46b-121k of the Connecticut statute in the preceding text.

Contrast the Connecticut statute with the requirements of the 1989 BIA Tribal Juvenile Justice Code that authorizes the tribal juvenile court to cooperate with any federal, tribal, state, public, or private agency to participate in any diversion, rehabilitation, or training programs and to receive grants. The 1989 BIA Tribal Juvenile Justice Code provisions also empower the tribal juvenile court to negotiate contracts for the care and placement of children "whose status is adjudicated by the juvenile court." The Leech Lake provisions are based upon the 1989 BIA Tribal Juvenile Justice Code. The Connecticut approach is preferable in that it designates a "lead agency," the judicial branch, to develop the necessary programs in coordination with other key agencies.

Special Unit; Advocates and Navigators. The purpose of the Colorado statute at Section 27-69-101 et seq. is to assist youth and families specifically where the youth has a mental illness or co-occurring disorder. The law establishes a mental health unit that will promulgate rules and standards after consultation with a family advocacy coalition and stakeholders, and provide navigation, crisis response, integrated planning, transition services, and diversion from the juvenile justice system for youth with mental illness or co-occurring disorders. The law uses "family advocates" and "family systems navigators" to help youth and their families access and participate in services—to navigate across mental health, physical health, substance abuse, developmental disabilities, juvenile justice, education, child welfare, and other state and local systems.

Contrast the Colorado statute with the 1989 BIA Tribal Juvenile Justice Code Section 1-6 describing tribal juvenile court personnel including a court-appointed juvenile counselor or probation officer, guardians ad litem, CASAs, juvenile advocates, and/or referees. The Leech Lake provisions are based upon the 1989 BIA Tribal Juvenile Justice Code provisions. The 1989 BIA Tribal Juvenile Justice Code and Leech Lake provisions contemplate primarily justice system personnel (e.g., intake, monitoring, legal representation, judges) while the Colorado statute adds additional advocates and navigators with specific backgrounds and training in working with mental health problems and co-occurring disorders.

Mitigation in Sentencing. The Kansas statute at Section 21-4626 provides for mitigation in sentencing where there is evidence that a criminal defendant was suffering from PTSD caused by violence or abuse by the victim of the crime. This scheme assumes that a juvenile offender was transferred to adult criminal court, was found guilty, and was sentenced. Youth advocates and juvenile justice system reformers argue that traumatized youth should not be transferred to an adult criminal court for processing, but if they are, their sentences should be mitigated where there is proof of trauma. They argue that such mitigation should be extended to other stress-related disorders as well (beyond PTSD) and that it should not depend on whether the victim of the crime was also the abuser of the youth.

Secure Detention. The Colorado statute at Section 19-2-508 requires a juvenile court judge to consider the juvenile’s need for mental health and educational services when determining what detention facility to confine a juvenile in. Youth advocates and juvenile justice system reformers argue that traumatized youth should never be put in either a juvenile or adult secure detention facility (jail). However, should this be necessary, the judge should be required to consider the youth’s trauma and mental health needs in selecting a facility.

Note that many tribes, similar to the Hopi Ordinance 35 provisions, authorize the tribal juvenile intake officers and judges to place juveniles in secure detention, and even adult jail (for certain age ranges), pending adjudication and as a disposition alternative. This raises serious due process and potential traumatization and retraumatization concerns where youth are detained under dangerous conditions and for long periods of time awaiting adjudication or postdisposition. Out of the tribal juvenile codes reviewed, none made the choice of a secure detention facility conditional on the availability of mental health or trauma-sensitive services.

[29.9] Exercises

The following exercises are meant to guide you in developing the trauma-sensitive sections of the tribal juvenile code.

• Find and examine your juvenile code’s provisions governing mental health screening, assessment, and treatment. What agencies or entities are responsible for undertaking these activities? What are the timing requirements?
• Make a list of what is working well and what is not.
• If you were to reform your juvenile justice system, what tribal entity or agency should be empowered and mandated to be the lead agency to establish coordinated programs for traumatized, potentially court-involved youth and their families?
• Are you interested in adopting any of the following policy/law approaches?
  • Does your tribal system designate a lead agency for working with court-involved youth with mental health problems and their families?
  • Do your laws and policies provide for special units, family advocates, and/or navigators to assist traumatized youth and their families?
  • Does your juvenile code require your juvenile judge to consider trauma as well as the protection of the child and public safety in exercising juvenile court jurisdiction over youth?
  • Does your juvenile code require your juvenile judge to determine whether a traumatized youth is competent to proceed within the juvenile justice system?
  • Does your juvenile code require that information about a youth’s trauma be used appropriately (not for findings of guilt or to order secure detention) and to support diversion, the use of self-defense claims, and as mitigating evidence in transfer, disposition, and sentencing?
  • Does your juvenile code avoid the use of probation conditions and contempt orders that in effect funnel traumatized youth into secure detention facilities?
  • Does your juvenile code require your juvenile judge to consider trauma and the availability of mental health services in ordering youth to secure detention facilities?
  • Does your juvenile code prohibit the transfer of traumatized youth to adult criminal court?
  • If not, does your criminal code require the sentencing judge to factor in the existence of trauma in determining criminal sentences?

Read and Discuss*

Can evidence-based mental health and therapeutic services be culturally adapted to provide effective and appropriate treatment for American Indian (AI) and Alaska Native (AN) youth and their families?

Needs of Youth

• The AI/AN population is especially susceptible to mental health difficulties
• Average annual violent crime rate among AI/AN people over 12 years of age is approximately 2.5 times the national rate
• There is approximately one substantiated report of violent crime per year for every 30 Native children
• Average life expectancy among AI/AN people is lower than the non-Indian population
• Nearly half the AI/AN population is comprised of minors who need care, guidance, and support
• The prevalence of posttraumatic stress disorder (PTSD) is substantially higher among AI/AN persons than in the general community (22% vs. 8%)
• AI/AN persons are more vulnerable to PTSD given exposure to traumatic events coupled with the overarching cultural, historical, and intergenerational traumas
• People who have traumatic experiences and develop PTSD are at risk for other negative mental health outcomes
• Rates of substance abuse disorders, mental health disorders, particularly depression, are elevated among AI/AN peoples

• Many AI/AN individuals, to survive, have developed coping strategies that leave them ill-equipped to deal with ongoing trauma, stress, and hardship
• Many AI/AN people are distrustful and reluctant to consider professional mental health services
• Therapeutic services offered in the past have often proven ineffective and inappropriate for AI/AN populations

• Develop, refine, disseminate, and evaluate culturally relevant trauma intervention models for use with children in Indian country
• Culturally adapt interventions from existing evidence-based treatments
• Identify traditional healing practices, activities, and ceremonies that are used therapeutically to provide instructions about relationships and parenting

• Identifying the core concepts within existing evidence-based treatments
• Identifying Native traditional teachings and concepts relevant to trauma therapy—parenting, nurturing, therapeutic practice, ways of teaching and learning, cultural worldviews used to explain individual behavior
• Using a process of ongoing and open dialogue
• Working with diverse group of Native cultural consultants
• Creating intervention and training materials and implementation support strategies and protocols

• The following interventions have been developed by the Indian Country Child Trauma Center at the University of Oklahoma Health Sciences Center and build upon common and tribal-specific cultural elements to provide culturally relevant therapeutic approaches that also respect the substantial individual variability in cultural identity among AI/AN people:
• Honor Children, Making Relatives—based upon Parent Child Interaction Therapy, clinical application of parenting techniques in a traditional framework, emphasizing honor, respect, extended family, instruction, modeling, and teachings
• Honoring Children, Respectful Ways—congruent with evidence-based group treatment for children with sexual behavioral problems, designed to honor children and promote their self-respect while also promoting respect for others, elders, and all living things
• Honoring Children, Honoring the Future—based on the American Indian Life Skills Development Curriculum, an evidence-based suicide prevention program, uses risk and protective factors specific to AI/AN youth as the basis for its prevention strategies, the curriculum is designed for middle and high school students and teaches communication, problem solving, depression and stress management, anger regulation, and goal setting, special attention is paid to AI/AN worldviews, communication styles and forms of recognition
• Honoring Children, Mending the Circle—based upon Trauma-Focused Cognitive-Behavioral Therapy, applies cognitive behavioral techniques to support the healing process of trauma in children, grounded in a traditional framework that supports the AI/AN belief in spiritual renewal leading to healing and recovery, practices about behavior, health, healing, humor, and children

*Taken from Delores Subia Bigfoot & Janie Braden, "Adapting Evidence-Based Treatments for Use with American Indian and Native Alaskan Children and Youth," Focal Point 21, no. 1 (Winter 2007): 19–22. Research, Policy, and Practice in Children’s Mental Health. Research and Training Center on Family Support and Children’s Mental Health.

Chapter 30: Integrating Culture, Customs, Traditions, and Generally Accepted Practices

[30.1] Overview

Tribal leaders, legislators, and judges today repeatedly face the task of identifying custom and factoring it into their policymaking. They must also consider when and how to incorporate custom into tribal legislation and into the written decisions of the tribal court. There are important questions concerning the transparency of the respective processes (the decision-making processes of the executive, legislative, or adjudicative branches), the reliability of the sources and characterizations of custom, and the relevancy and applicability of custom to the problems or disputes being addressed.[56]

Working with culture, customs, traditions, and generally accepted practices (CCTGAPs) in both the drafting of tribal laws and in the application of those laws by the tribal courts and justice system personnel can be challenging. Some critics argue that such undertakings romanticize tribal governance and law and/or that they will result in the application of old, out-of-date, or simply wrong principles. Others argue that custom and tradition are too hard to work with or that they are inefficient or lack the status of being "legal." However, these criticisms are based in a misunderstanding of both the purpose of these undertakings and the nature of custom and tradition.

Many tribal governments today are under a legal duty under their own written laws to identify, respect, and at least to consider the incorporation of persisting legal norms (also known as CCTGAPs) arising from local (often traditional) groups within their communities. These "legal norms" are original, naturally arising law—the glue that has kept and continues to keep people in Native communities together. Tribal governments are also under a duty to ensure that their legal institutions and laws reflect principles that seem just or fair to their people in the given tribal culture. This includes a duty to reform to keep in step with the changing values and expectations of Native community members.

Unfortunately, many, if not most tribes today have inherited "boilerplate law" drafted by non-Natives, usually U.S. government officials, based on Western models but then often modified in curious ways by bureaucratic fiat. Recognition of this fact by Native legal scholars has resulted in cries for the reform of tribal constitutions, codes, rules, and in the tribal common law. As one Native scholar has put it:

[W]e are at an opportune moment to critically appraise our systems and evaluate them using native ideals and taking into consideration the native world view. It is the particular responsibility of native lawyers, practitioners, professionals, and advocates working with tribal justice systems to assess the current situation of tribal courts and to determine the future course. . . .[57]

This chapter seeks to inform a critical appraisal of existing tribal children’s and juvenile law (a.k.a. "codes"), to spur an evaluation of Western-influenced statutory provisions, and to prompt Native communities to explore their local values and ways in the reconceptualization and reform of their children’s and juvenile law(s).

There are three important considerations to keep in mind in making written custom law: (1) many Native people are horrified at the prospects of having their customs and traditions put into writing so it will be critical to explain why this is needed, how it will work, and to include them in crafting the laws. This can be accomplished by establishing a custom documenting committee working parallel to your law drafting committee; (2) in considering custom law, both committees and judges must consider the reliability of the sources and characterizations of custom, and the relevancy and applicability of the defined custom to the problems or disputes being addressed; and (3) most tribal legal scholars argue that the choice of enforcement of customs should be left up to tribal judges, who deal with real parties in real time with live issues, rather than to law makers, as legislation tends to freeze custom in time and lawmakers cannot predict or provide rules for all future variations of an issue or problem. Nevertheless there are some procedural and substantive matters that are well suited and necessary to be legislated (see the list in following text).

Key statutory provisions for working with CCTGAP in a juvenile justice context include:

• setting out the values and purposes of the law;
• defining youth and family bills of rights, duties, and obligations;
• mandating the choice of law to be applied by the juvenile court;
• creating a process for finding CCTGAP;
• creating requirements for juvenile judges applying CCTGAP in court;
• providing notice and participation rights in juvenile court for extended family members;
• mandating cultural education for justice and treatment system personnel;
• defining and authorizing traditional placements, guardianships, and adoptions;
• creating a diversion process to traditional authorities/entities, healers, mentors, and activities; and
• defining CCTGAP restitution and reconciliation.

Reviewing CCTGAP while working through Chapter 2 :Preliminary Choices to Guide Code Development may be helpful.

[30.2] Tribal Code Examples—Values and Purpose