BRIEF

American Indian and Alaska Native Youth

JULY 2015 in the Juvenile Justice System

Although there is a lack of comprehensive data to account for tribal, state, and
federal justice systems, Native youth are overrepresented in the juvenile justice
system. Although Native youth make up approximately 1% of the general youth
population and comprise only 1% of juvenile arrests, Native youth are arrested
at two to three times the expected rate for certain offenses, such as running
away and liquor law violations. i A 2008 study by the National Council on Crime
and Delinquency (NCCD) also determined that Native youth are most likely to
Jen Rountree, PhD; Research receive punitive sanctions such as transfer to the adult justice system and out-
Manager, National Indian Child of-home placement. Further, Native youth are much more likely than their non-
Welfare Association (NICWA) Native peers to receive harsh treatment while incarcerated (e.g., pepper spray,
restraints, and isolation ii).

In 1992, the Office of Juvenile Justice and Delinquency Prevention (OJJDP)

began requiring state juvenile justice programs receiving funding to track and
address the high number of minority youth in secure confinement.
Unfortunately, “disproportionate minority contact” data is often limited to
black, white, and Hispanic youth. However, some states with larger Native
populations have collected and published data specific to Native youth,
including Alaska, Arizona, Minnesota, Montana, Oklahoma, North Dakota, South
Dakota, Washington, and Wisconsin. These studies indicate that in each of
these states, Native youth are disproportionately more likely to be referred to
the juvenile justice system, arrested, and placed in a secure juvenile
correctional facility than their white peers. The most egregious finding comes
from a 2005–2006 study in Fairbanks, Alaska, which determined that Alaska
Native youth were nearly five times (4.96) more likely to be referred by the
Division of Juvenile Justice than white youth. iii

Tribal, State, and Federal Jurisdiction

The complex arrangement of justice systems serving Indian Country has been
described as a “tangled web of justice.” ivDepending on where the offense
occurs, whether or not the tribal youth resides on the reservation, if there is a
This document was prepared for the Technical
Assistance Network for Children’s Behavioral non-Native victim, and the gravity of the offense, a Native youth may be
Health under contract with the U.S. processed by the tribal, state, or federal juvenile justice system. Tribal courts
Department of Health and Human Services,
Substance Abuse and Mental Health Services have jurisdiction over acts that are committed on tribal land, with a few
Administration, Contract exceptions. Some states share jurisdiction with tribes (referred to as P.L. 280
#HHSS280201300002C. However, these
contents do not necessarily represent the states v). Federal courts have jurisdiction over major crimes, as defined by the
policy of the U.S. Department of Health and
Human Services, and you should not assume
U.S. Major Crimes Act, vi including murder, manslaughter, kidnapping, and sexual
endorsement by the Federal Government. offenses, and others. However, when these major offenses occur on tribal
lands, tribal courts may also process their youth through their justice system
according to tribal law. Finally, if tribal youth commit offenses on tribal lands
against non-Native individuals, these cases may be prosecuted through the state
(or federal) system.
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Although Native youth represent only 1% of the general youth population, about half of all juveniles in
the federal system are tribal youth. vii A 2011 Urban Institute Justice Policy Center study identified
factors that influence the federal prosecution of tribal juvenile offenders. Federal prosecution is given
precedence in cases where tribal resources for prosecution or detention of juveniles may be limited.
Also, in cases where tribal youth need treatment and services, prosecutors may decide that the
interests of the youth are best served through federal prosecution if more rehabilitative resources and
services are available. However, the increased number of treatment options available through the
federal system may be offset by separation from their families and communities when tribal youth are
placed in these facilities. Culture and spiritual practices are an important part of the healing process
for tribal youth. Maintaining or building positive relationships with family, peers, and elders can be
critical to the rehabilitation of tribal youth and strengthen the youth’s transition back to his or her
home community. Well-developed tribal services and resources may provide the best option for tribal
youth. Native youth that are able to maintain or create positive connections with family, community,
and culture are more likely to develop positive cultural identity, which serves not only as a protective
factor for youth at risk for delinquency, but also for behavioral and physical health issues. viii ix x

Mental Health Issues and Access to Resource

Historical trauma—the cumulative impact of forced relocations, cultural assimilation, broken treaties,
and termination—continues to influence Native communities, and the health disparities suffered by
Native people are connected to these historical and current traumatic experiences.

Compared to their non-Native peers, Native youth have more serious problems with behavioral health
disorders; Native youth have significantly higher rates of anxiety, substance abuse, and depression. xi
Native youth also have the highest rates of violent victimization, and are twice as likely to experience
violence as their non-Native peers. xii

Nearly 70% of youth in contact with the juvenile justice system have a diagnosable mental health
disorder; over 60% of youth with a mental health disorder also have a substance abuse disorder. xiii In
addition, youth in the juvenile justice system have higher rates of exposure to traumatic experiences:
93% of youth in detention reported exposure to adverse events including accidents, physical and sexual
abuse, and domestic and community violence—and the majority of these youth were exposed to six or
more events. (Abram et al., 2004; Ford et al., 2007)

Across Indian Country, mental health and substance abuse services vary by community. In 1955 the
Indian Health Service (IHS) was established as a division of the U.S. Health and Human Services
Department to provide medical and public health services to federally recognized tribal communities.
The 1975 Indian Self-Determination and Education Assistance Act (P.L. 93-638 xiv) provided tribes the
option of assuming the administration and operation of health services and programs in their
communities from IHS, or to remain within the IHS administered health system. Today, many
communities may experience long wait times to receive health services from regional providers through
IHS. Community-based mental health systems are in development, but often lack extensive assessment
resources or treatment services. To increase access to mental health and substance abuse resources for
Native youth entering the juvenile justice system, tribes may enter into intergovernmental agreements
with states to allow tribal youth to access state services.

Protections for Native Youth

Native youth involved with child welfare have certain protections in the juvenile justice system. The
Indian Child Welfare Act of 1978 (ICWA), xv provides for Native youth who are facing out-of-home
placement due to a status offense (an act that would not be considered a crime if committed by an
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3 | American Indian & Alaska Native Youth in the Juvenile Justice System

adult, such as truancy or possession of alcohol or tobacco). If out-of-home placement is under

consideration in the case of a Native youth who has committed a status offense, ICWA requires the state
to notify the tribe when a child is taken into state custody and/or is at risk of removal from the home.
The purpose of this notification is to give tribes, as well as parents, the opportunity to advocate for the
best interests and outcomes for their youth. xvi ICWA protections may require that the case be
transferred to a tribal court, or that the youth be placed via ICWA preferences such as with a family
member or tribal member, versus commitment in a state juvenile facility. However, a 2012 study by
Gonzàlez determined that states continue to differ in their implementation and compliance of this law
three decades after its enactment. xvii

ICWA protections do not extend to Native youth involved with state juvenile justice systems. Only one
state in the U.S. – New Mexico – has such a requirement for Native youth entering the state’s juvenile
justice system.

Culture-Based Alternatives to Incarceration

In 2011, the U.S. Departments of Justice and the Interior released the congressionally mandated Tribal
Law and Order Act Long Term Plan to Build and Enhance Tribal Justice Systems, intended to decrease
the rates of incarceration and increase alternatives to detention in Indian Country. The plan supports
tribal communities in implementing programs that create alternatives to incarceration and address
detention and reentry through cultural approaches to helping and healing youth.

The Juvenile Detention Alternatives Initiative (JDAI), a project of the Annie E. Casey Foundation, aims
to drastically reduce reliance on local confinement of court-involved youth. JDAI projects are underway
in 40 states and 300 counties across the country. xviii The Association on American Indian Affairs (AAIA)
and The National Indian Child Welfare Association (NICWA) have been active in developing a tribal
model for JDAI to address strengths and challenges pertaining to tribal communities, including access to
federal funding for tribal programs. xix Currently, the Mississippi Band of Choctaw is in the process of
implementing the first tribal JDAI site. AAIA and NICWA are documenting that process and will be
producing guiding materials for other tribes interested in adopting the tribal JDAI model.

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4 | American Indian & Alaska Native Youth in the Juvenile Justice System

Selected Tribal Culture-Based Alternatives

The following are examples of culture-based alternatives to incarceration for youth in Indian
Country, originally referenced in a 2011 joint publication from the Office of the Juvenile Justice
and Delinquency Prevention and the Tribal Juvenile Detention and Reentry Resource Center.

Emerging Practices in Response to the Tribal Law and Order Act can be accessed via the following
link: http://www.tribalreentry.org/sites/tribalreentry.org/files/TLOA_FINAL.pdf

Anchorage Youth Courts

Anchorage, Alaska

The Anchorage Youth Court (AYC) has served to discourage illegal behavior while encouraging understanding
and respect for the law through positive peer pressure in a formal court setting. For more than 20 years, the
AYC has been successful in significantly reducing the number of juvenile delinquency cases. The AYC provides
legal training, a youth court bar association, and juvenile court operated by youth in grades seven through
twelve, with adults serving as advisors. Youth ages 12 to 18 who are arrested for committing a criminal
offense, but are not considered a threat to themselves or others are referred from the State of Alaska Juvenile
Justice Division to the AYC. The AYC serves both non-Native and Alaska Native youth in the City of Anchorage.

For more information: www.anchorageyouthcourt.org

Sac and Fox Nation

Stroud Oklahoma

The Sac and Fox Nation in Oklahoma created a juvenile detention program that provides a safe environment
for Native youth between the ages of 12 and 18, as well as corresponding school and spiritual programs. The
program was designed to create cultural healing spaces for talking circles (outdoor protected spaces for
traditional healing) and indoor sanctuaries for multi-dimensional healing practices.

For more information: http://sacandfoxnation-nsn.gov/departments/juvenile-detention/mission-and-

program/

Rosebud Sioux Tribe

Rosebud, South Dakota

The Rosebud Sioux Tribe, a grantee of OJJDP’s Youth Green Reentry Program, provides traditional practices
and healing ceremonies for youth reentering the community, including sweat lodges and pipe ceremonies.
While in detention, youth work with traditional elders to address behavioral and health issues. Similar to other
green reentry programs, the Rosebud program also has incorporated green technologies such as gardening,
beekeeping, raising chickens, recycling, and environmental education into their reentry program. Sinte Gleska
University, on South Dakota’s Rosebud Indian Reservation, provides community-based mental health services to
Native youth in the juvenile justice system, including equine therapy. The services are funded by the
Substance Abuse and Mental Health Services (SAMHSA) systems of care program.

For more information:

• www.ojjdp.gov/newsletter/238981/sf_3.html (Youth Green Reentry Program)
• http://www.sintegleska.edu/tiwahe-glu-kini-pi.html (Community-based children’s mental health program
at Sinte Gleska University)

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 5 | American Indian & Alaska Native Youth in the Juvenile Justice System

References

i
Arya, N. & Rolnick, A. (2008). A tangled web of justice: American Indian and Alaska Native Youth in Federal, State, and Tribal
Justice Systems. Campaign for Youth Justice Policy Brief, Vol. 5.
ii
Cross, T.L. (2008, November/December). Native Americans and juvenile justice: A hidden tragedy. Poverty & Race Research
Action Council Newsletter.
iii
Arya & Rolnick. (2008). Ibid.
iv
Arya & Rolnick. (2008). Ibid.
v
United States Department of Justice. (2015, May 1). Frequently Asked Questions about Public Law 83-280. Retrieved from:
http://www.justice.gov/usao/mn/PL-280%20FAQ.html
vi
The Major Crimes Act, 18, U.S.C. § 1153; http://www.gpo.gov/fdsys/pkg/USCODE-2011-title18/pdf/USCODE-2011-title18-partI-
chap53-sec1153.pdf
vii
Urban Institute Justice Policy Center (2011). Trbial youth in the Federal justice system. Final Report. Washington, DC: Urban
Institute Justice Policy Center. Retrieved from: https://www.ncjrs.gov/pdffiles1/bjs/grants/234549.pdf
viii
Mmari, Blum & Teufel-Shone (2010). What increases risk and protection for delinquent behaviors among American Indian Youth?
Youth and Society, 41, 382-413.
ix
Whitesell, N. R. (2008). Developing a model of positive development for indigenous youth. Paper presented at the Society for
Research on Adolescence, Chicago, March 8.
x
Chandler & Lalonde. (Unpublished manuscript). Cultural continuity as a moderator of suicide risk among Canada’s first nations.
xi
Olson & Wahab. (2006). American Indians and suicide: A neglected area of research. Trauma, Violence & Abuse, 7(1), 19-33.
xii
Pavkov, T.W. Travis, L, Fox, K.A., Bear King, C. & Cross, T.L. (2010). Tribal youth victimization and delinquency: Analysis of
Youth Risk Behavioral Surveillance Survey data. Cultural Diversity and Ethnic Minority Psychology, 16(2), 123-134.
xiii
Shufelt, J.L., and Cocozza, J.J. (2006). Youth with Mental Health Disorders in the Juvenile Justice System: Results from a Multi-
State Prevalence Study. Research and Program Brief, June 2006. National Center for Mental Health and Juvenile Justice.
xiv
Department of the Interior, Bureau of Indian Affairs & Department of Health and Human Services, Indian Health Service. (n.d.).
Public Law 93-638 Indian Self-Determination and Education Assistance Act, as Amended, Regulations, Final Rule. Retrieved
from: http://www.bia.gov/cs/groups/mywcsp/documents/collection/idc017334.pdf
xv
The National Indian Child Welfare Association (NICWA). (n.d.). Indian Child Welfare Act of 1978. Retrieved from:
http://www.nicwa.org/indian_child_welfare_act/
xvi
NICWA and the Association on American Indian Affairs (AAIA) are currently completing a case study of the tribal notification law
in New Mexico. The results of this study will be released in 2015.
xvii
Gonzalez, T. (2012). Reclaiming the promise of the Indian Child Welfare Act: A study of state incorporation and adoption of
legal protections for Indian status offenders. New Mexico Law Review, 42,131–158.
xviii
The Annie E. Casey Foundation. (n.d.). Juvenile Detention Alternatives Initiative. Retrieved from:
http://www.aecf.org/work/juvenile-justice/jdai/
xix
The Annie E. Casey Foundation. (2013, May 24). Overview of JDAI. Retrieved from:
https://tribalstate.nmcourts.gov/index.php/published-
documents/doc_download/Expanding%20JDAI%20to%20Indian%20Country%205%2024%2013.pdf

Suggested Citation:
Rountree, J. (2015). American Indian and Alaska Native youth in the juvenile justice system. Baltimore,
MD: The Technical Assistance Network for Children's Behavioral Health.

ABOUT THE TECHNICAL ASSISTANCE NETWORK FOR CHILDREN’S BEHAVIORAL HEALTH

The Technical Assistance Network for Children’s Behavioral Health (TA Network), funded by the Substance Abuse and Mental Health Services
Administration, Child, Adolescent and Family Branch, partners with states and communities to develop the most effective and sustainable
systems of care possible for the benefit of children and youth with behavioral health needs and their families. We provide technical assistance
and support across the nation to state and local agencies, including youth and family leadership and organizations.

ABOUT THE NATIONAL INDIAN CHILD WELFARE ASSOCIATION (NICWA)

This resource was produced by NICWA in its role as a partner in the national Technical Assistance Network for Children’s Behavioral Health.
NICWA is dedicated to the well-being of American Indian and Alaska Native children and families. NICWA works to support the safety, health,
and spiritual strength of Native children along the broad continuum of their lives. We promote building tribal capacity to prevent child abuse
and neglect through positive systems change at the state, federal, and tribal level. To learn more about NICWA, visit. www.nicwa.org.

The Technical Assistance Network for Children’s Behavioral Health