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"Native Americans and Juvenile Justice: A Hidden Tragedy,"

by Terry L. Cross November/December 2008 issue of Poverty & Race

In the United States in 2008, there are more than 560 federally-recognized American Indian tribes comprising an American Indian/Alaska Native (AI/AN) population of approximately 4 million individuals. About half this population lives on reservations, and the others live off-reservation, primarily in urban communities. The AI/AN population is young: 42%—almost 2 million—are under 19 years of age. Twenty percent (800,000) are at risk—60,000 suffer abuse or neglect each year. According to the Youth Violence Research Bulletin, the suicide rate for American Indian juveniles (57 per 1 million) was almost twice the rate for white juveniles and the highest for any race. In addition, 200,000 are believed to suffer from serious emotional disturbances.

American Indian youth are grossly over-represented in state and federal juvenile justice systems and secure confinement. Incarcerated Indian youth are much more likely to be subjected to the harshest treatment in the most restrictive environments and less likely to have received the help they need from other systems. AI/AN youth are 50% more likely than whites to receive the most punitive measures. Pepper spray, restraint and isolation appear to be grossly and disproportionately applied to Indian youth, who have no recourse, no alternatives and few advocates.

In 2003, litigation over conditions in a South Dakota state training school revealed horrible abuses in the use of restraints and isolation, yet little in the way of education or mental health services. Findings also showed that Native youth were significantly over-represented in the lockdown unit and thus subject to the worst abuses. For example, one young girl from the Pine Ridge Reservation had been held in a secure unit within the facility for almost two years, during which time she was placed in four-point restraints while spread-eagled on a cement slab for hours at a time, kept in isolation for days and even weeks, and pepper-sprayed numerous times. This young girl, like many of the females confined at the facility, suffered from significant mental health and substance abuse issues. Due to the lack of appropriate mental health treatment and the harsh conditions in the facility, she resorted to self-harming behavior as a way to draw attention to herself, and like many of the other girls now has scars up and down her arms from cutting herself. Finally, the facility also instituted a rule that penalized Native youth for speaking in their Native language, and several were placed on lockdown status for speaking Lakota to each other.
There is a growing awareness that many tribes’ children and youth are being taken outside the care, custody and control of their families, communities and tribal government, and that many are suffering from extreme physical, mental and emotional abuse in the process.

Exploratory Qualitative Research Results

Beginning in 2003, the National Indian Child Welfare Association (NICWA) has conducted exploratory research to identify and highlight the issues of American Indian children and youth with regard to juvenile rights and justice. What we have learned can be best summarized in the words of some of the focus group participants:
    “[American Indian]… youth are ending up in adult facilities because there are no separate facilities for young people in some communities, despite laws forbidding contact between minors and adults in correction facilities;… sometimes even parents are not notified when young people are taken into custody.” (2002 NICWA leader focus group)

    “Indian status offenders are often treated as if they were violent offenders;… a young woman (under 16 years of age) was charged with fourth degree assault for spitting on a nurse.” (2002 NICWA provider focus group)

    “State and county workers act discriminatorily to both tribal social service workers and young Indian clients.” (2002 NICWA provider focus group)

    “Children are often placed in correctional facilities for inappropriate reasons (truancy, parents’ behavior and overdoses).” (2003 NICWA provider focus group)

    “I’m proud and sad to be Indian at the same time… It feels really bad seeing people drinking and dying… I blaze home to Browning for a funeral every other month.” (2003 NICWA youth focus group)

    Participants felt that the kids who most needed help, the kids who made bad choices already (“bad kids”), were likely to be left out. One participant succinctly captured the essence of this concern: “Yeah, half the people have problems from the life they chose, but what challenges you to change if no one gives you a chance?” (2003 NICWA youth focus group)

    “Children are often taken out of the community and offered non-culturally-specific/relevant services as individuals (not services in conjunction with their family) even when tribal services are available.” (2003 NICWA provider focus group)

Disparate Rates and At-risk Youth: Sparse Data

In addition to qualitative research, NICWA has also conducted reviews of the literature to determine the level of attention these issues are receiving in research and in the literature. Sparse data exist, but the data that are available point to a serious problem that is not currently being addressed.
  • The Bureau of Justice Statistics publication, American Indian Crime, reported: “On a given day, 1 in 25 American Indians age 18 or older is under the jurisdiction of the criminal justice system—2.4 times the per capita rate of Whites …,” and that “Nearly a third of all American Indian victims of violence are between ages 18 and 24. This group of American Indians experienced the highest per capita rate of violence of any racial group considered by age—about 1 violent crime for every 4 persons of this age.”

  • Native American youth represent 1% of the U.S. population, yet they constitute 2-3% of the youth arrested for such offenses as larceny-theft and liquor law violations.

  • In 26 states, Native American youth are disproportionately placed in secure confinement in comparison to their population. For example, in four states (South Dakota, Alaska, North Dakota, Montana), Native youth account for anywhere from 29-42% of youth in secure confinement.

  • Nationwide, the average rate of new commitments to adult state prison for Native American youth is almost twice (1.84 times) that of White youth. In the states with enough Native Americans to facilitate comparisons, Native American youth were committed to adult prison from 1.3 to 18.1 times the rate of Whites.

  • Of the youth in custody of the Federal Bureau of Prisons, 79% were Native American as of October 2000—an increase of 50% since 1994.

  • Alcohol-related deaths among Native Americans ages 15-24 are 17 times higher than the national averages. The suicide rate for Native American youth is three times the national average. Forty-four percent of all American Indian students drop out of high school, more than any other group in the country – the rate varies between 25% and 93%, depending on region.

Federal Mandates

The Juvenile Justice Delinquency Prevention Act (JJDPA) of 1974 was amended in 1989 to include a provision addressing the needs of federally- recognized Indian tribes. The JJDPA stipulates that states in their three-year plans must include the juvenile justice needs of Indian tribes.

States with a minority representing 1% or more in the general population are required by the Act to have a Disproportionate Minority Contact (DMC) plan that addressed the issues, concerns and problems of their over-representation. More proactive alternatives to the use of secure confinement for the Native youth are needed, and collaborative relations between Indian tribes and states could be strengthened. Our efforts and findings are intended to assist states in their strategic planning to reduce Native over-representation and disparate treatment.

Native American youth who have committed one of 16 major federal crimes on Indian lands with exclusive federal jurisdiction are prosecuted by the U.S. Attorney’s Office. Of all youth in the nation who are prosecuted federally, 32% are placed in a secure facility for juvenile offenders, and 74% of these are Native American. As there are no federal correctional facilities nationwide specifically for juvenile offenders, the Federal Bureau of Prisons contracts beds in state or private facilities for these youth in their custody. Such facilities must be within proximity to the youths’ homes and have culturally appropriate services.

What We Do Not Know: Key Elements

Unfortunately, there is too much that is unknown about American Indian children and youth and the juvenile justice system. Without reliable knowledge, attempts at mobilizing advocacy efforts have gone without funding and have failed to gain traction. Research is needed to raise awareness of the issues and to justify the need for funding to begin to address the issues. Things that we do not know and research must address include the following:

About the Youth
What is the true nature and character of Indian youth in the juvenile justice system (demographics, nature of offenses, victims of abuse and neglect, drug and alcohol involvement, gang membership, emotional problems, risk of suicide, educational attainment and special needs, degree to which youth experienced detention, etc.)?

How many American Indian youth are held in: (a) adult jails, (b) juvenile detention facilities, (c) juvenile commitment facilities or training schools, and (d) adult prisons? Are American Indian youth over-represented at each stage of the justice system: arrest, detention, transfer to adult court, adjudication, disposition, and incarceration in juvenile or adult facilities?

What is the experience of American Indian youth in the juvenile justice system? Are their special needs being met? Are they treated differently than other youth?

What is the experience of the parents of American Indian youth in the juvenile justice system? In what ways are they involved?

About the Systems
What is the nature and character of current juvenile justice systems and services that serve American Indian youth and families? Are there culturally authentic support, treatment and rehabilitation services? What are the current recidivism rates of Native youth?

To what degree are juvenile justice interventions being used in lieu of mental health, child welfare and educational services that are unavailable?

Are tribal religious leaders and Native healers gaining frequent access to juvenile correctional facilities to work with and counsel Native youth? Are tribal religions and ceremonial practices included in these facilities?

What is the nature and character of current tribal juvenile justice systems and services? In what ways are they involved with tribal youth in the custody of the state or the Federal Bureau of Prisons?

Recommendations

The NICWA Board of Directors identified the issue of juvenile rights as an area of concern in 2002, when it became apparent that Indian children and youth were being maltreated in juvenile detention facilities and that many of the youth being confined in those facilities were there, not because they committed a crime, but because there were not appropriate mental health or child welfare resources available to meet their needs. Through our examination of these issues over a five-year period, we arrived at several recommendations.

It is recommended that the Department of Justice (DOJ) or private funders conduct or sponsor formative research in states that are known to have particularly high levels of over-representation or have documented harsh treatment of Indian youth in juvenile justice systems or juvenile facilities and that have already begun to engage in some dialogue with tribes to explore solutions. Such formative research should address the following questions:
  • What is the nature and character of current juvenile justice systems and services that serve American Indian youth and families?
  • To what degree are there data, research or literature regarding American Indian youth in the juvenile justice system?
  • To what degree does an advocacy movement, network or voice exist for American Indian youth in the juvenile justice system?
  • To what degree are tribal government officials having influence in the treatment, rehabilitation and disposition regarding their tribal members in state or federal juvenile justice systems and facilities?

It is further recommended that DOJ engage leaders in planning for strategic activities that will lead to clear identification of related problems in Native communities, including what might be effective alternatives and strategies to address the problems. Finally, it is recommended that the Juvenile Justice and Delinquency Prevention Act be amended to ensure the rights of tribal youth and to begin to provide resources to correct this hidden problem.

Conclusion

Currently, Indian children and youth who are identified as delinquent have few protections and even fewer advocates. Parents of these children who are served in this system often experience a sense of powerlessness and report being discriminated against. Tribes that might be resources for positive change are without resources or the right to intervene on their citizens’ behalf. This article is a call to action aimed at stimulating dialogue about this little-discussed topic.

Terry L. Cross is an enrolled member of the Seneca Nation of Indians, and is the developer, founder and Executive Director of the National Indian Child Welfare Association. He is the author of the Heritage and Helping, Positive Indian Parenting, and Cross-Cultural Skills in Indian Child Welfare (published by the NICWA). He also co-authored “Toward a Culturally Competent System of Care” (published by George­town Univ. Child Development Center) and “Reclaiming Customary Adoption” (published by NICWA). tlcross@nicwa.org
 
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