The Quiet Crisis in Native American Juvenile Justice

There is a crisis facing the criminal justice system serving Native American youth. The general public has no idea of the challenges facing this group, but when President Barack Obama convened the White House Tribal Nations Conference in November 2013, one of the four major topics on the agenda was violent crime. 

Statistics highlight the magnitude of the problem. Although they represent 1% of the U.S. population, Native American juveniles represent 2% to 3% of youth arrests in categories such as theft and alcohol possession. Similarly, they are committed to adult incarceration at a rate 1.84 times that of whites and are placed under the jurisdiction of the criminal justice system at a rate 2.4 times that of whites. In four states with substantial Native American populations, they represent from 29% to 42% of juveniles held in secure confinement. The alcohol-related death rate among Native American youth stands at 17 times the national rate. Their suicide rate is triple the national average among males aged 15 to 24. Their high school dropout rate is the highest of any racial group. While at first glance these numbers are bad enough, what makes them even harsher is the fact that the Native American population is a relatively young one: according to the Indian Health Service, in 2008 the median age of the Native American population was 28.0 years versus 35.3 years for the U.S. population as a whole. This means these issues impact a relatively larger portion of the total Native American population. 

A look at Native American demographics paints a picture of the source of these sobering numbers. The Native American poverty rate is the country’s second highest at 21% in 2004, behind only to African-Americans at 23% and nearly triple the 8% rate among whites. The high school dropout rate in 2006 was half again the national average at 29.1% compared to 19.6%. Conversely, the baccalaureate degree completion rate is less than half the national rate: 11.5% versus 24.4%. Finally, Native Americans are most likely to suffer from crime, with victimization rates higher than any other U.S. racial group: in 2002 among youth 12 to 17, the rates were 45 per 1,000 for Asians, 95 for whites, and 97 for African-Americans, but 145 among Native Americans. Experts believe that 200,000 Native Americans under age 19 suffer “serious emotional disturbances”—a rate of 10%. 

Native Americans entering the criminal justice system tend to be treated with disparate severity. Research that assesses the rates at which Native Americans are handled at various stages using the rate for white juveniles as 1 (with a reading under 1 indicating a lower frequency and above 1 a higher frequency) reveals that while the relative arrest rate for Native Americans is 1.0, referrals resulting from those arrests occur at a rate of 1.3. Diversion to alternative programs occurs at a rate of only 0.9, while detentions occur at a rate of 1.1. Adjudications occur at a rate of 1.1, but while probation is granted at a rate of 0.9, placement per adjudication occurs at a rate of 1.5, as do waivers to adult courts. Amazingly, 79% of all youth in Bureau of Prisons custody are Native American, though this number is distorted somewhat by FBI jurisdiction over Indian Country that places offenders directly into the federal system. 

Incarcerated Native American youth also seem to receive disproportionately harsh treatment, including the use of pepper spray, restraints, and isolation. A 2003 lawsuit against a South Dakota training school alleged overuse of the lockdown unit for Native Americans, and one female plaintiff who had spent nearly two years there claimed to have been placed in four-point restraints on a cement slab for hours at a time on multiple occasions. 

There are multiple and interrelated causes of these significant gaps in the system. Research by the National Indian Child Welfare Association shows that Native American youth are frequently placed in adult facilities—despite statutes prohibiting contact between adult and minor inmates in a correctional facility—because many of their communities lack dedicated juvenile facilities. This early exposure to a harsh prison environment can result from minor offenses such as truancy or from situations that would not normally warrant confinement, such as an overdose. 

Native American youth also tend to find themselves isolated in the justice system. Consequently the Office of Juvenile Justice and Delinquency Prevention has published guidance for a tribal court CASA (court-appointed special advocate) program. 

Finally, the Native American community must deal with a patchwork of inconsistent law enforcement, court, and corrections systems. This is mostly the result of the evolution of tribal justice systems under the influence of treaties and federal laws. The Indian Civil Rights Act limited the sentencing power of tribal courts to one year of imprisonment and a maximum fine of $5,000. Legal jurisdictions on tribal territories are usually complex, and authority is almost always shared with the federal government. 

Environmental factors also play a role. By federal judicial precedent tribal courts have no jurisdiction over non-Indians, even when they commit crimes on tribal territory. As for Native American offenders, because prosecution of even relatively minor juvenile offenses like shoplifting, underage drinking, or fighting falls to the U.S. Attorney, the priority of limited resources generally goes to more significant cases, so these crimes tend to go unpunished. Together these two factors contribute to a lawless environment on reservations. 

Culturally, the various Native American tribes do not approach juvenile delinquency from the same perspective as America’s Western European-based norms. This often creates issues for youth who move between the reservation and the community and do not fully understand the standards of conduct expected of them off-reservation. This increases their risk for run-ins with the juvenile justice system. Moreover, Native American culture historically did not use confinement as a criminal punishment. Most tribal court systems rely on restitution, community service, mental health treatment and counseling, and probation to answer juvenile crimes, so confinement tends to be off-reservation. 

There is no single or simple solution to such a complex challenge, and of course any solution must also be culturally relevant. The federal government made a number of attempts over the years to remedy the flaws in the current Native American justice system. But the numbers cited here should make it clear that the country risks losing an entire generation of Native American youth. author, Robert Winters, holds a Juris Doctorate degree and is a Professor with Kaplan University. He is also a member of the National Criminal Justice Association and serves as a Western Regional Representative, a member of the National Advisory Board and their National Elections Committee. 

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