National Congress of American Indians

2015 Mid Year Conference

St. Paul, Minnesota

Tribal-State Relations for the 21st Century

June 30, 2015

Jen Rountree

and

Jack Trope

Tribal Notification for Native Youth in the

State of New Mexico Juvenile Justice

System: A Policy Research Project

Background

• Native youth are grossly over-represented in state and

federal juvenile justice systems and secure confinement.

• In four states (SD, AK, ND, and MT), AI/AN youth account

for between 29%–42% of youth in secure confinement.

• NM Native youth are two times more likely than non-

Hispanic White youth to receive a sanction of commitment.

• Native youth had twice the rate of status offenses

compared to White juveniles and were more likely to have

status offense cases that resulted in adjudication (national

sample, 2005).

Purpose of the Project

• NICWA and AAIA have been involved in advocacy efforts

for Native youth in the juvenile justice system, including the

Juvenile Detention Alternatives Initiative (JDAI) program

through the Annie E. Casey Foundation.

• The tribal notification project was proposed to NICWA and

AAIA by State of New Mexico Tribal Liaison Bernie Teba,

who brought the provision, until very recently the only one

of its kind in the U.S., to our attention.

• Tribal notification—and most importantly, Tribal-State

collaboration—increases opportunities for advocacy and

may reduce the number of Native youth in state juvenile

justice systems.

History of the Provision

N.M. Stat. § 32A-2-5, as amended by New Mexico Laws 1993, Chapter 77,

Section 34, includes the following requirements:

“A. Juvenile probation and parole services shall be provided by the

department.

B. To carry out the objectives and provisions of the Delinquency Act, but

subject to its limitations, the department has the power and duty to: …

(8) identify an Indian child for the purpose of contacting the Indian

child’s tribe in delinquency cases; and

(9) contact an Indian child’s tribe to consult and exchange

information for the purpose of preparing a predisposition report when

commitment or placement of an Indian child is contemplated or has been

ordered and indicate in the report the name of the person contacted in the

Indian child’s tribe and the results of the contact.”

History of the Provision

“One thing we always recognized was that the State could provide greater protections than ICWA, and when we sought to exceed ICWA protections we stated this. 32A-2-5 (B) (8) does not specify at what point notice is to occur. While there may be privacy concerns, the idea was always for the tribe to help the child and family, if at all possible to avoid detention, and if detention did occur, to provide

an active connection to the child.” Prof. Zuni-Cruz

Procedures

• Qualitative case study, CBPR approach

• 3 formal tribal partners

• 22 interviews (28 participants)

• 4 meetings (85 participants)

• 3 rounds of interviews

• Member-checking and verification process

• Limitations—No youth and family participation

• Findings yield

– Reporting on procedures and practices for tribal notification

– Additional themes that impact the Native youth in the juvenile justice system

Findings: Interviews with State

Personnel Who notifies and how notification occurs

• No formal procedure requiring JPOs to ask the child and/or family if the child is AI/AN.

• JPOs/facilities notify child’s tribe.

• Form letter sent to tribe; copy to tribal liaison.

• 3 JPOs reported that emails and follow-up phone calls were also a regular part of notification.

• 2 JPOs and one facility-intake staff report sending notification only to tribal liaison.

• Tribal contacts vary per tribe; may include governors’ offices, courts, probation, and/or social services offices.

• Contacts not regularly updated.

• No names, only titles, or official departments to account for the sometimes frequent turnover of tribal administration and personnel.

When notification occurs

• No written procedure on how and when

JPOs notify; facilities must notify tribal

liaison via email within 24 hrs, but no

requirements for when to notify tribe.

• JPOs report variation per when notification

is given: During PI (including informal

handling), at petition, or predisposition.

• CYFD JJS suggests notification occur at

predisposition.

Interviews with State Personnel

Outcomes of notification

• Most indicated notification very rarely elicits response.

• JPO reported no response out of 97 cases.

• State judge reported he had never seen a tribal

representative in the state children’s court.

• One participant reported regular communication with

tribes and reported that tribes frequently represent youth

in court proceedings.

• JPO described “best-case scenario” for notification as

“collaboration…and to avoid overburdening the families

or providing repetitive services.”

• JPOs indicate some tribal youth and/or families do not

want tribe to be notified.

Interviews with State Personnel

Who receives notification

• Tribe A: all notifications (JJS and ICWA) are

received by the Office of the Governor, and are

then routed to the appropriate departments,

such as behavioral health, tribal courts, and

social services; social services had not seen a

juvenile justice notification.

• Tribe B: tribal court (representatives of tribal

court declined interview, could not verify that

notifications were received at the tribal court).

• Tribe C: tribal court and tribal ICWA dept.

Interviews with Tribal Personnel

When/how notification occurs

• Participants often unable to determine at what

point in the youth’s case the notification was sent.

• Notifications received a month after sentencing or

“after the process was over.”

• Some phone calls were received to notify

(without formal notification).

Interviews with Tribal Personnel

Recommendations

• Predisposition is too late if alternatives to incarceration and tribal advocacy are the intent.

• Tribal judges report that more notifications, at earlier stages in the case, would be beneficial.

• One tribal judge indicated that notification as early as the preliminary inquiry stage would be helpful.

• More info needed, e.g., a police report that provides the details of the incident that occurred.

• Contact by email is quicker and more reliable.

Interviews with Tribal Personnel

Status offenses • New Mexico law recognizes tribal jurisdiction over all cases

defined as child custody proceedings under the ICWA.

• Child custody proceeding is defined to include all

proceedings which may result in out-of-home placement for

a youth except proceeding based upon an action by the

youth that would be a crime if committed by an adult.

“32A-1-8. JURISDICTION OF THE COURT--TRIBAL

COURTJURISDICTION.--

D. Nothing in this section shall be construed to in any way

abridge the rights of any Indian tribe to exercise jurisdiction over child

custody matters as defined by and in accordance with the federal

Indian Child Welfare Act of 1978.”

Special Cases and Outcomes

for Native Youth

Special Cases and Outcomes

for Native Youth

Special Cases and Outcomes

for Native Youth Table 2. DMC at three stages of contact for NM Native youth.

Contact

Point

Name of Contact Point Finding

One Referral to the Children’s Court

Attorney

Not significant at this contact point.

Two Petition: Delinquency Finding Native Americans are 2 times more likely

than Non-Hispanic White juveniles to

receive a sanction of commitment versus

the combined odds of dismissed, time

waiver/consent decree, probation, and

detention given that all other variables are

held constant.

Three Petition: Sanction

Access to mental health services

• State and tribal participants referenced need for

mental health services for Native youth entering

or at risk for JJS.

• CYFD JPO, in 10 years of experience,

increasingly, Native youth she works with are

struggling with “serious mental health [issues];”

tribal programs offer more SA than MH.

• Tribal participant described lack of capacity,

shrinking options for residential treatment.

• IGAs to access state services has worked for

some tribes but not others.

Emergent Themes

Variation in capacity to respond and level of involvement

• One tribal participant described how only once in 22 years has a case not been transferred to tribal court: “I think mostly everybody wants to handle their own stuff. They think they can—we know we can—do a better job. We’re committed, we’re invested, I mean this is our kid…These aren’t cases, these are our folks that we’re talking about… We’ve pulled kids out of placements from Oklahoma to California—we’ll find the resources, we’re not just going to give up a case though.”

• Another tribe reported not having capacity to provide all types of services; no capacity to provide services for youth and families not domiciled on the reservation.

• Another response was that based on tribal customs, youth are primarily the responsibility of family.

Emergent Themes

Create clear procedures and protocols regarding how,

when, and to whom tribal notification should be

administered.

• Procedure/mechanism to ensure ID of Native status

• Consider revisions to notification and/or other forms

• Annual updates for tribal contacts (with titles, email)

• Notify earlier: At petition or preliminary inquiry

• Consider revisions to the language in the provision to

clarify procedures and requirements

• As revised legislation, or procedures, are considered,

facilitate a tribal-state collaborative process

• Ensure ICWA is followed in status offense cases

Policy and Practice

Recommendations

Increase collaboration, including data and

information sharing, between tribal and state

juvenile justice personnel through formal or informal

agreements.

• Work with state or tribal partners to develop treatment

services that will address gaps and enhance existing

services while still maintaining confidentiality.

• Provide additional information, e.g., police reports,

regarding offenses and court proceedings can

improve and expedite tribal advocacy for youth.

• Explore IGAs as potential tool (but not sole

mechanism) for collaboration.

• Increase role of judges to improve implementation.

Policy and Practice

Recommendations

Utilize tribal notification to improve tribal and state capacities to identify and address mental health issues among Native youth.

• Early notification can serve a preventative purpose in the form of mental health screening and referral to mental health services.

• “Think outside the box”: e.g. telehealth programs

• Expand tribal mental health services through 638 funds to develop tribally based programs or to contract local university health or non-tribal community-based programs, Systems of Care grants and Medicaid to support children’s mental health services.

• Positive cultural identity, knowledge of tribal language, family involvement, relationships with elders are protective factors for delinquency.

• Non-tribal programs also address need for cultural programming.

Policy and Practice

Recommendations

Utilize tribal notification to decrease incarceration and route Native youth to alternative programs.

• NM has been moving to implement the Juvenile Detention Alternatives Initiative (JDAI) on a statewide basis and Bernalillo County is a model JDAI site.

• Youth should only be detained if they are a risk to society or may flee if they are released.

• JDAI requires a range of alternatives to incarceration if it is to be successful. Notice to tribes can be an important mechanism for increasing the range of alternatives available to make JDAI work.

• Family group conferencing, teen courts, peacemakers, and other tribal resources and practices have been identified by tribal participants as potential alternatives to detention.

Policy and Practice

Recommendations

www.nicwa.org

Thank you!

Jack Trope, JD & Jennifer Rountree, PhD

For additional questions, please contact

Jen Rountree at jen@nicwa.org