[Senate Hearing 115-610]
[From the U.S. Government Publishing Office]
S. Hrg. 115-610
JUSTICE FOR NATIVE YOUTH: THE GAO REPORT ON NATIVE AMERICAN YOUTH
INVOLVEMENT IN JUSTICE SYSTEMS AND INFORMATION ON GRANTS TO HELP
ADDRESS JUVENILE
DELINQUENCY
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HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 26, 2018
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
JOHN HOEVEN, North Dakota, Chairman
TOM UDALL, New Mexico, Vice Chairman
JOHN BARRASSO, Wyoming MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska JON TESTER, Montana,
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho CATHERINE CORTEZ MASTO, Nevada
JERRY MORAN, Kansas TINA SMITH, Minnesota
JON KYL, Arizona
T. Michael Andrews, Majority Staff Director and Chief Counsel
Jennifer Romero, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Hearing held on September 26, 2018............................... 1
Statement of Senator Barrasso.................................... 5
Statement of Senator Cortez Masto................................ 7
Statement of Senator Heitkamp.................................... 6
Statement of Senator Hoeven...................................... 1
Statement of Senator Smith....................................... 47
Statement of Senator Udall....................................... 3
Witnesses
Abinanti, Hon. Abby, Chief Judge, Yurok Tribal Court............. 26
Prepared statement........................................... 28
Goodwin, Gretta L., Ph.D, Director, Justice and Law Enforcement
Issues, Homeland Security and Justice Team, U.S. Government
Accountability Office.......................................... 7
Prepared statement........................................... 9
Harp, Caren, Administrator, Office of Juvenile Justice and
Delinquency Prevention, U.S. Department of Justice............. 17
Prepared statement........................................... 18
Rolnick, Addie, Professor of Law, William S. Boyd School of Law,
University of Nevada........................................... 31
Prepared statement........................................... 34
Tahsuda, John, Principal Deputy Assistant Secretary For Indian
Affairs, U.S. Department of the Interior....................... 22
Prepared statement........................................... 24
Appendix
Response to written questions submitted by Hon. Steve Daines to:
Hon. Abby Abinanti........................................... 57
Gretta L. Goodwin............................................ 57
Response to written questions submitted by Hon. Tom Udall to Hon.
Abby Abinanti.................................................. 60
JUSTICE FOR NATIVE YOUTH: THE GAO
REPORT ON NATIVE AMERICAN YOUTH
INVOLVEMENT IN JUSTICE SYSTEMS AND
INFORMATION ON GRANTS TO HELP
ADDRESS JUVENILE DELINQUENCY
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WEDNESDAY, SEPTEMBER 26, 2018
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 2:59 p.m. in room
628, Dirksen Senate Office Building, Hon. John Hoeven,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. JOHN HOEVEN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. Good afternoon.
I call this oversight hearing to order.
Before we begin, I want to take a moment and recognize our
former Chairman and member of this Committee, Senator John
McCain.
As you know, Senator McCain passed away last month after a
long battle with cancer. He was truly a colleague and a friend.
He was one of the Committee's longest-serving members, serving
twice as Chairman of this Committee.
Throughout his service in Congress, Senator McCain was a
real champion for Indian Country. He was a budget hawk and a
fiscal conservative but he also strongly believed the Federal
Government has a solemn duty to meet its trust obligations to
Native Americans.
He had a hand in some of the most significant Federal laws
and policies that have benefitted Indian people, including
fighting to protect the children, honoring Indian veterans,
promoting transparency and integrity, advancing Native
languages, regulating Indian gaming, reforming Indian housing,
forest management and strengthening tribal sovereignty, self
governance and self determination.
One of his last measures, now a part of his enduring
legacy, was the Ashlynne Mike AMBER Alert in Indian Country
Act. To the very end, Senator McCain did not forget the most
vulnerable. His work will endure that others will be empowered
to fulfill their responsibilities to children across Indian
Country.
Senator McCain served his Country with honor, integrity,
dignity, selflessness and tenacity. It was an honor and a
privilege to serve with him on this Committee and in the
Senate.
Senator McCain, you are missed. We thank you for your
service.
I would ask for a moment of silence in honor of Senator
McCain.
[Moment of silence.]
The Chairman. Thank you.
Today, we are examining the Government Accountability
Office report on Native American youth. Native children often
face significant risk factors which make them more susceptible
to juvenile delinquency, substance abuse and high poverty
rates.
We hear about these risk factors all too frequently. We
must continue to make positive reforms to help these young
people chart a different course. In light of these challenges,
Senator Barrasso and I requested this study to determine how we
can help Indian Country's next generation, not just survive,
but to thrive.
Issued on September 5, 2018, the report is a landmark study
which examines the extent to which Native American youth are
involved in Federal, State, local and tribal justice systems.
It also provides a review of the Federal resources
available to help Indian tribes and tribal organizations
address juvenile delinquency.
The report indicated that the arrest, adjudication and
confinement numbers for Native youth declined from 2010 to
2016. Though it did not formally conclude why these numbers
have been declining, individuals interviewed by the GAO
indicated that restorative justice may have been a significant
factor contributing to the decline.
If so, we must discuss how we can continue to use
restorative justice practices to keep our youth out of the
criminal justice system.
According to GAO, in North Dakota in 2010, there were 1,092
Native youth in the State justice system. That was 18.4 percent
of the total youth in the State system at that time.
Even though the number decreased in 2016 to 685, 17.5
percent youth in the system at that time, these numbers are
still too high and certainly unacceptable.
While historically the number of Native youth has been
higher in State and local systems when compared to the Federal
system, our Federal system is often more problematic for Native
youth.
The number of Native youth in the Federal system far
exceeds other youth. Additionally, Native youth generally
experience more serious charges and punishments in the Federal
system.
As I mentioned, the GAO also reviewed the Federal resources
available to help Indian tribes address juvenile delinquency.
It highlighted that nearly $1.2 billion in Federal dollars was
available in grants from the Departments of Justice and Health
and Human Services for Indian tribes and tribal organizations
to combat juvenile delinquency.
However, only a little over $207 million was awarded to
Indian tribes and tribal organizations. The GAO is continuing
to examine how these resources can be better mobilized to
combat juvenile delinquency.
We will continue to work with the GAO as they study this
staggering problem in Indian Country. In the meantime, I would
like to continue working with those represented here to address
the issues raised by this report.
It is essential that we take action on behalf of our Native
youth and the entirety of Indian Country to reform the current
justice system. For this reason, Senators Barrasso, McCain,
Daines, Murkowski and I sponsored the Tribal Law and Order
Reauthorization and Amendments Act of 2017.
This bill would help address several of the issues
identified in the report, most notably data collection on
tribal affiliation, determination of the best approach to
public safety and behavioral health-related juvenile justice
programs, and the development of culturally relevant evidence-
based justice programs.
With that, I want to welcome our witnesses. I look forward
to our witnesses. I welcome your testimony and recommendations
on these issues.
Before we turn to your testimony, I would like to ask for
opening statements beginning with Vice Chairman Udall.
STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Thank you very much, Chairman Hoeven. Thank
you so much for your moving statement about our friend and
colleague, Senator McCain.
I would also like to say a few words about my good friend,
colleague and former Chairman of this Committee, Senator John
McCain.
John's outsized presence in the United States Senate and
this Committee will surely be missed, but his enduring legacy
will guide us for years to come. John was a leading voice on
many issues throughout his decades of public service.
He was internationally known for his stances on human
rights and government oppression around the globe. He was also
a leading voice for Indian Country. He worked diligently on
this Committee on issues critical to Native Americans like
improved housing, health care, education and economic
development.
We did not see eye-to-eye on every issue, but John and I
agreed on the fundamentals of tribal sovereignty. The decisions
made by tribes for tribes produce better outcomes. John held
true to those core values throughout his tenure on the Senate
Committee on Indian Affairs. His voice will be sorely missed.
Mr. Chairman, this oversight hearing involving Native youth
and juvenile justice is an important one. I really appreciate
your working with me in scheduling this. I continue to be
inspired by the resilience and determination of youth tribal
members to tackle the tough issues facing Indian Country.
At our oversight hearing on Native languages, we heard from
Lauren Hummingbird, a recent high school graduate and Cherokee
immersion program participant. Her powerful testimony
underscored the positive cultural impact Native youth can have
on their communities.
For me, it highlighted the importance of providing
opportunities and resources like language and cultural programs
to help lift the next generation toward success. That lesson is
particularly salient today as we turn to juvenile justice.
Research tells us that risk factors, such as domestic violence,
housing insecurity, unwelcoming schools, and substance abuse
contribute to Native juvenile delinquency at disproportionate
rates.
Many Native youth are forced to face these risk factors
every day. To address juvenile justice in Indian Country, we
need to find ways to decrease those known risk factors while
supporting the development of more productive factors.
At our last oversight hearing on juvenile justice in 2015,
much of the conversation focused on risk factors and protective
factors. In fact, I recall speaking with one of today's
witnesses, Professor Rolnick, about how many highly effective
juvenile justice programs rely on activities that are not a
part of anti-delinquency programs as we normally think of them,
like the Santa Clara Pueblo's Capo Kid's Initiative which
incorporates tradition and healthy extra curricula activities
and their methods to reduce juvenile and young adult crime.
I am glad today's hearing will give us a chance to
reexamine what we learned in 2015 in light of GAO's findings in
this new report. It is unfortunate, but perhaps not unexpected,
that data challenges stemming from department and
jurisdictional differences are clouding our ability to track
juvenile justice trends.
It is important to know where these data limitations lie
and get a better picture of how Federal resources are reaching
Native youth. The grants portion of the report is especially
important to consider as we talk about risk factors and
protective factors.
The Committee needs to have a better understanding of the
universe of programs that can keep Native youth resilient and
strong and to keep those most at risk from slipping through the
cracks, providing quality housing through NAHASDA, immersing
Native youth in their language through Esther Martinez
Programs, securing additional funding through Interior
Department appropriations for BIE and substance abuse, and
restoring tribal jurisdiction over domestic and family violence
with the Native Youth and Tribal Officer Protection Act.
All these things would go a long way toward making sure the
decrease in juvenile delinquency between 2010 and 2016 observed
by GAO continues for the next ten years and more. We must work
together to provide tribes with more resources and ensuring
Native youth get the support they need.
I look forward to working with my colleagues on this
Committee to continue looking for more ways to champion Native
youth. I look forward to continuing our work together, Mr.
Chairman, over the last few months of this Congress to move
important legislation that will help Native youth and tribal
communities across the finish line.
Thank you to all of our witnesses for joining us today.
Thank you again, Mr. Chairman for calling this hearing.
I yield back.
The Chairman. Thank you, Vice Chairman Udall.
Senator Barrasso.
STATEMENT OF HON. JOHN BARRASSO,
U.S. SENATOR FROM WYOMING
Senator Barrasso. Thank you very much, Mr. Chairman. I
appreciate your holding this hearing today. I thank both you
and the Vice Chairman for the comments you made about our
friend and colleague, Senator McCain.
This was clearly an issue that was incredibly important not
just to us, but to Senator McCain. He cared deeply about the
issue we will be discussing today.
I am honored to serve on this Committee. As a member and
past chairman, this Committee is going to be different without
his passionate advocacy for Indian Country. We certainly are
all better off for having debated complex issues with him.
Senator McCain knew, and I agreed, that no issue is more
important across tribal communities than those affecting
children. As a matter of fact, he and I had a chance in 2016 to
go to Window Rock and the Navajo Nation to visit with a number
of people, tribal leaders and a school, St. Michael's School.
When he passed, many of us put on our Instagram account
pictures of us doing things with Senator McCain, many in war
zones. The picture I chose was one of the Navajo Nation at the
school with children. You can see the love and the look in
Senator McCain's eyes and the deep feelings he had to making
sure the children, and most certainly the Navajo Nation, had
the opportunities so necessary.
Mr. Chairman, let me say, prior to completion of the GAO
report we are here to discuss today, we knew there a number of
issues existed related to Native youth interactions with the
justice system. As chairman, I held a similar hearing in 2015
where we considered findings from the 2013 report from the
Indian Law and Order Commission and the 2014 report from the
Attorney General's Advisory Committee on American Indian and
Alaska Native Children Exposed to Violence Task Force.
Ms. Rolnick testified during that hearing and made a series
of comprehensive recommendations, some of which are still
applicable today. Ms. Rolnick, I appreciate you joining us
again today to continue this important discussion.
While the GAO report and others like it fill a sizable gap
in our knowledge about the number of Native youth in the
justice system and the nature of interactions, the GAO found
that existing data was sparse.
In their written testimonies, Dr. Goodwin, Ms. Harp and Ms.
Rolnick all identified the need to have improved data
collection. I believe more complete information will inform
better policy and better policy will help us be better partners
with tribes as we work to ensure Native youth have bright
futures.
Mr. Chairman, I want to thank you again for having this
important discussion. I look forward to continuing to work with
you to find lasting solutions.
The Chairman. Thank you, Senator Barrasso. Thanks for your
leadership on this important issue.
Are there other opening statements? Senator Heitkamp.
STATEMENT OF HON. HEIDI HEITKAMP,
U.S. SENATOR FROM NORTH DAKOTA
Senator Heitkamp. Thank you, Mr. Chairman. Thank you for
calling this hearing. I think it is critically important.
I too want to share remembrances and thoughts about our
colleague and friend, Senator John McCain.
An image I think got lost in the kind of flurry of amazing
memorials and opportunities to recount a life well lived, a
life lived with honor and duty, the image I will remember
forever was a makeshift memorial at the end of their driveway,
a long road at their home in Sedona. It was a lone Native
American man, a soldier, saluting Senator McCain warrior-to-
warrior. When I saw that image, I knew it would be one of those
of which Senator McCain would be most proud because it
represented the brotherhood of warriors but also represented
his unique and sincere desire to improve conditions for Native
Americans, especially Native American children.
One of the last bills Senator McCain was able to get passed
was our bill which would allow for Amber Alert in Indian
Country, a bill on which I worked very closely with Cindy, his
wonderful wife, who will now pick up the legacy of doing this
work.
One of the challenges and opportunities I want to talk
about in brief comments here is the Commission on the Status of
Native American Children which we were able to finish coming
out of this Committee and now are working on getting funded.
It is not enough to do studies, to wring our hands and look
at statistics. We need real solutions and real actions. I hope
as we look at what will improve the lives of our indigenous and
Native people in this Country; we will look at this through the
lens of their children.
There are serious issues with the juvenile justice system
as it relates to Native American children. I hear more and more
from the children who are incarcerated, I will use that word,
and detained in some ways in juvenile justice facilities that
are Federal facilities with no education, no benefits, and no
real opportunity for change.
We want to see what that looks like. The most important
thing we can do is prevent a child from entering that system. I
want everyone to understand that is the purpose of the
Commission on Native American Children, to find some
comprehensive approach to generational trauma and changing
outcomes very early on to avoid children entering the Federal
juvenile justice system.
I think John would be proud as we talk about this effort.
He knew the best thing we could do is go upstream. Let us not
try to just deal with the symptoms, let us try and deal with
the root causes.
The Chairman. Other opening statements? If not, I will
proceed to our witnesses.
Today, we will hear from Dr. Gretta L. Goodwin, Ph.D,
Director, Justice & Law Enforcement Issues, Homeland Security &
Justice Team, U.S. Government Accountability Office,
Washington, D.C.; Ms. Caren Harp, Administrator, Office of
Juvenile Justice and Delinquency Prevention, U.S. Department of
Justice, Washington, D.C.
I understand this is your first appearance before Congress
since being appointed by the President and sworn in on January
19, 2018. Welcome.
We will also hear from Mr. John Tahsuda, Principal Deputy
Assistant Secretary for Indian Affairs, U.S. Department of the
Interior, Washington, D.C. Deputy Secretary Tahsuda was Senator
McCain's former Staff Director on this Committee for how many
years, John?
Mr. Tahsuda. Two years.
The Chairman. Amazing how that works.
We will also hear from The Honorable Abby Abinanti, Chief
Judge, Yurok Tribal Court, Klamath, California. Welcome.
I am going to turn to Senator Cortez Masto to introduce Ms.
Rolnick.
STATEMENT OF HON. CATHERINE CORTEZ MASTO,
U.S. SENATOR FROM NEVADA
Senator Cortez Masto. Thank you, Chairman Hoeven and
Ranking Member Udall.
I am honored to be able to introduce Professor Addie
Rolnick from the UNLV William S. Boyd School of Law. As you
have heard, Professor Rolnick is no stranger to this Committee
having testified before in 2015.
She specializes in criminal law and procedure, Indian law
and critical race theory. Her scholarship investigates the
relationships between sovereign power and minority rights with
a focus on indigenous peoples and equal protection doctrine,
tribal court jurisdiction, the role of race and gender in the
criminal, juvenile and tribal justice systems.
Professor Rolnick has written numerous articles on these
issues, including Native Youth and Juvenile Injustice in South
Dakota, and Locked Up: Fear, Racism, Prison Economics, and the
Incarceration of Native Youth.
She has previously worked here in D.C. as an advocate on
tribal criminal and juvenile justice issues. She has also
assisted tribes with institution building in the areas of
constitutional reform, criminal law and juvenile justice and
child welfare.
I am so happy to be able to introduce Professor Rolnick to
the Committee. I look forward to hearing her expert testimony.
Thank you for being here.
The Chairman. Thank you, Senator Cortez Masto.
With that, we will turn to you, Dr. Goodwin, for your
testimony.
STATEMENT OF GRETTA L. GOODWIN, Ph.D, DIRECTOR,
JUSTICE AND LAW ENFORCEMENT ISSUES, HOMELAND
SECURITY AND JUSTICE TEAM, U.S. GOVERNMENT
ACCOUNTABILITY OFFICE
Dr. Goodwin. Chairman Hoeven, Vice Chairman Udall, and
members of the Committee, I am pleased to be here today to
discuss our recently completed work on Native American youth in
the Federal, State, local and tribal justice systems, as well
as the Federal grant programs that help address issues of
delinquency among their populations.
Several risk factors make Native American youth susceptible
to becoming involved with the justice system, including
exposure to violence, substance abuse and poverty.
My testimony today will highlight two areas: first, data on
the number and characteristics of Native American youth in the
Federal, State and local, and tribal justice systems; and
second, Federal grant programs that can help prevent or address
delinquency as well as tribal governments and Native American
organizations access to those grants.
Our analysis showed that from 2010 through 2016, the number
of Native American youth in Federal, State and local justice
systems declined across all phases of the process, arrest,
adjudication and confinement. For example, arrest of Native
American youth at the Federal level dropped from 60 in 2010 to
20 in 2016. At the State and local level, arrests declined from
over 18,000 in 2010 to about 11,000 in 2016.
The vast majority of Native American youth who came into
contact with the justice system were involved at the State and
local levels, not the Federal level. For example, from 2010
through 2016, agencies reported over 105,000 arrests at the
State and local levels compared to 246 arrests at the Federal
level.
At the State and local levels, the offenses for which
Native Americans and non-Native American youth were arrested,
adjudicated and confined were generally similar. However, at
the Federal level, differences were found among the most
frequent types of offenses committed.
Native American youth most frequently committed offenses
against a person such as assault or sex offenses while non-
Native American youth most frequently committed offenses
related to drugs and alcohol or public order.
For most States, the share of Native American youth
involved in the State and local systems was similar to their
share of the youth population in that State. In contrast, their
representation in the Federal system was greater than their
representation nationwide. Native American youth were 1.6
percent of the nationwide youth population but were 18 percent
of the youth arrested at the Federal level.
We obtained perspectives from DOJ officials and Native
American organizations about factors that might contribute to
the data we observed. For example, both groups attributed the
greater percent of Native American youth in the Federal system
to Federal Government jurisdiction over crimes in Indian
Country that States would otherwise prosecute if committed
outside of Indian Country.
Regarding grant programs, we identified 122 offered by DOJ
and HHS from fiscal years 2015 to 2017 that could help prevent
or address delinquency among Native American youth.
Approximately $1.2 billion in first year awards were made over
that period while $207 million were awarded to tribal
governments or Native American organizations.
While tribal governments and Native American organizations
were eligible for almost all 122 grant programs we identified,
they applied mostly for the programs that focused on their
communities. DOJ and HHS officials provided perspectives on why
tribal governments and Native American organizations might not
apply for grant programs that do not specify them as a primary
beneficiary. These include a lack of awareness that they are
eligible and concerns that their applications won't be
competitive for grants that do not focus on their communities.
Tribal governments and Native American organizations
identified various practices they found helpful or challenging
when applying for grants. They told us being able to ask
questions of agency officials during the application process
was helpful. They cited short application deadlines and
difficulties collecting the required data as some of the
challenges when applying for Federal grants.
Chairman Hoeven, Vice Chairman Udall, and members of the
Committee, this concludes my remarks. I am happy to answer any
questions you have.
[The prepared statement of Dr. Goodwin follows:]
Prepared Statement of Gretta L. Goodwin, Ph.D, Director, Justice and
Law Enforcement Issues, Homeland Security and Justice Team, U.S.
Government Accountability Office
Chairman Hoeven, Vice Chairman Udall, and Members of the Committee:
I am pleased to be here today to discuss our recently completed
report on American Indian and Alaska Native (Native American) youth
involvement in federal, state and local, and tribal justice systems,
and federal grant programs available to help address issues of
delinquency among Native American youth. \1\
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\1\ GAO, Native American Youth: Involvement in Justice Systems and
Information on Grants to Help Address Juvenile Delinquency, GAO-18-591
(Washington, D.C.: Sept. 5, 2018).
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In particular, I will highlight our findings pertaining to (1) what
available data show on the number and characteristics of Native
American youth in federal, state and local, and tribal justice systems;
and (2) selected federal discretionary grants and cooperative
agreements (grant programs) that could help prevent or address
delinquency among Native American youth, and tribal governments and
Native American organizations' access to them. \2\
---------------------------------------------------------------------------
\2\ Discretionary grants are competitive and the granting agency
has discretion to choose one applicant over another. Cooperative
agreements are similar to discretionary grants in that federal agencies
generally award them based on merit and eligibility; however, federal
agencies generally use cooperative agreements when they anticipate that
there will be substantial federal, programmatic involvement with the
recipient during the performance of the financially-assisted
activities, such as agency collaboration or participation in program
activities.
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According to recent reports and agency research, \3\ several risk
factors make some Native American youth susceptible to becoming
involved with justice systems at the federal, state and local, and
tribal levels. \4\ These risk factors include exposure to violence;
substance abuse; poverty; limited job market skills; and tribal
communities' limited funding for mental health, education, housing, and
other services.
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\3\ Attorney General's Advisory Committee on American Indian/Alaska
Native Children Exposed to Violence, Ending Violence so Children Can
Thrive,(November 2014), available at https://www.justice.gov/sites/
default/files/defendingchildhood/pages/attachments/2014/11/18/
finalaianreport.pdf; Indian Law and Order Commission, A Roadmap for
Making Native America Safer: Report to the President and Congress of
the United States (November 2013), available at https://
www.aisc.ucla.edu/iloc/report/; and Department of Justice Office of
Juvenile Justice and Delinquency Prevention, Literature Review: A
Product of the Model Programs Guide-Tribal Youth in the Juvenile
Justice System (Washington, D.C.: Development Services Group, Inc.,
2016), available at https://www.ojjdp.gov/mpg/litreviews/Tribal-youth-
in-the-Juvenile-Justice-System.pdf. The Indian Law and Order Commission
was established by the Tribal Law and Order Act of 2010, Pub. L. No.
111-211, tit. II, 235, 124 Stat. 2258, 2282 (2010).
\4\ Our discussion of Native American youth in justice systems
(i.e., federal, state and local, and tribal) generally included persons
who were (a) under 18 years of age at the time of arrest, adjudication,
or confinement; and (b) identified as Native American based on
descriptions and definitions of the agencies providing the data we
reviewed.
---------------------------------------------------------------------------
Native American youth who commit offenses can enter one or more
justice systems at the federal, state and local, and tribal levels.
Although these justice systems have unique characteristics, youth
generally proceed through certain phases, including arrest, prosecution
and adjudication, and in some instances, placement and confinement in a
detention facility. \5\
---------------------------------------------------------------------------
\5\ Our use of the term ``adjudication'' refers to youth in both a
juvenile justice system and prosecuted in adult criminal court. Our use
of the term ``confinement'' refers to youth committed to facilities
such as federally operated prisons; juvenile facilities overseen by the
federal government; and state, local, and tribal jails.
---------------------------------------------------------------------------
When a Native American youth enters the federal criminal justice
system, the Department of Justice (DOJ) and Department of the Interior
(DOI), among others, have responsibility for investigating and
prosecuting his or her act of delinquency or crime. Additionally,
federal agencies including DOJ and the Department of Health and Human
Services (HHS) provide funding through grant programs that grantees
could use to help prevent or address juvenile delinquency. \6\
---------------------------------------------------------------------------
\6\ In our September 2018 report and this testimony statement, we
use the term ``juvenile'' when referencing justice systems and
``youth'' when referring more generally to individuals under the age of
18 at the time of arrest or confinement. In addition, we use the term
``Native American'' to indicate both Alaska Native and American Indian
individuals, including the youth in the data we reviewed. However, we
use the term ``Indian'' in reference to definitions established by
statute or law.
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Outside Indian country, a state generally has jurisdiction to
proceed against a youth who has committed a crime or act of juvenile
delinquency. \7\ Federal law limits federal jurisdiction over youth if
a state has jurisdiction over the youth and has a system of programs
and services adequate for their needs. \8\ State and local justice
systems have specific courts--often at the county or city level--with
jurisdiction over youth alleged to have committed an act of juvenile
delinquency or a crime. \9\ Inside Indian country, youth (and adults)
may fall under federal, state, or tribal jurisdiction depending on
several factors. \10\ These factors include the nature of the crime,
the status of the alleged offender and victim--that is, whether they
are Indian or not--and whether jurisdiction has been conferred on a
particular entity by statute. The Major Crimes Act, for example, grants
the federal government criminal jurisdiction over Indians in Indian
country charged with serious, felony-level offenses enumerated in the
statute, such as murder, manslaughter, kidnapping, burglary, and
robbery. \11\ State jurisdiction in Indian country is generally limited
to two instances: when both the alleged offender and victim are non-
Indian, or when a federal statute confers, or authorizes, a state to
assume criminal jurisdiction over Indians in Indian country. \12\
Otherwise, only the federal and tribal governments have jurisdiction in
Indian country.
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\7\ Federal law defines the term ``Indian country'' as all land
within the limits of any Indian reservation under the jurisdiction of
the U.S. government, all dependent Indian communities within U.S.
borders, and all existing Indian allotments, including any rights-of-
way running through an allotment. See 18 U.S.C. 1151. With certain
exceptions, there is generally not Indian country in Alaska.
\8\ See 18 U.S.C. 5032.
\9\ Typically, justice systems refer to unlawful acts committed by
youth as acts of juvenile delinquency, and unlawful acts committed by
adults as crimes.
\10\ See 18 U.S.C. 1152 (codifying the General Crimes Act, as
amended); 1153 (codifying the Major Crimes Act, as amended); and 1162
(codifying state criminal jurisdiction provisions of Public Law 280, as
amended). The federal government also has jurisdiction to prosecute
crimes of general applicability, such as violations of the Controlled
Substances Act of 1970, 21 U.S.C. 801 et seq., and crimes that relate
specifically to Indian tribal organizations and resources without
regard for the Indian status of the alleged offender or victim. See
generally 18 U.S.C. 1154-70. Additionally, the Federal Juvenile
Delinquency Code applies to all juveniles alleged to have committed an
act of juvenile delinquency, other than a violation of law committed
within the special maritime and territorial jurisdiction of the United
States for which the maximum authorized term of imprisonment does not
exceed 6 months, and therefore generally applies to juveniles outside
and inside of Indian country. See 18 U.S.C. 5032.
\11\ See 18 U.S.C. 1153.
\12\ Public Law 280 gave certain states--Alaska, California,
Minnesota, Nebraska, Oregon, and Wisconsin--exclusive criminal
jurisdiction over offenses committed by or against Indians in Indian
country, except as specified in statute, thereby waiving federal
jurisdiction in those states. 18 U.S.C. 1162. A 2010 amendment to
this statute enabled tribes in Public Law 280 states to request
concurrent federal jurisdiction. See Pub. L. No. 111-211, tit. II,
subtit. B, 221(b), 124 Stat. 2272 (codified as amended at 18 U.S.C.
1162(d)). Because of this amendment, federal courts in Public Law 280
states can exercise jurisdiction over certain crimes if the tribe
requests concurrent federal jurisdiction and the Attorney General
consents to it. Specifically, after the tribal request and consent of
the Attorney General, federal and state courts in Public Law 280 states
have jurisdiction concurrent with the state for (1) major crimes
committed by Indians against Indians and non-Indians under the Major
Crimes Act; (2) crimes by non-Indians against Indians under the Indian
Country Crimes Act/Assimilative Crimes Act; and (3) crimes committed by
Indians against non-Indians under the Indian Country Crimes Act/
Assimilative Crimes Act.
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For our September 2018 report, we analyzed federal, state and
local, and tribal arrest, adjudication, and confinement data from 2010
through 2016 (the most recent available) from DOJ and DOI. We also
analyzed DOJ and HHS grant program award documentation from fiscal
years 2015 through 2017, and application information for a sample of
the grant programs chosen based on the amount of funding awarded and
other factors. Additionally, we also interviewed officials from DOJ,
HHS, and 10 tribal governments or Native American organizations chosen
to include successful and unsuccessful applicants to the grant
programs, among other things. \13\ Additional information on our scope
and methodology can be found in our September 5, 2018 report. For
specific information about the different databases from which we
gathered our data, see appendix I. Our work was performed in accordance
with generally accepted government auditing standards.
---------------------------------------------------------------------------
\13\ In our September 2018 report, we defined ``tribal
governments'' as the governing bodies of federally recognized tribes.
We defined ``Native American organizations'' as organizations
affiliated with federally recognized tribes, such as tribal colleges
and universities, as well as non-tribal organizations that focus on
serving American Indian and Alaska Native populations, such as urban
Indian organizations. In addition, we did not include Native Hawaiian
and Pacific Islander governmental entities and organizations in our
definition of ``tribal governments and Native American organizations''
for the purposes of our September 2018 report.
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Available Data Indicate Native American Youth Involvement in Justice
Systems Declined from 2010 through 2016 and Differed in Some
Ways
from That of Non-Native American Youth
In our September 2018 report, we found that from 2010 through 2016
the number of Native American youth in federal and state and local
justice systems declined across all phases of the justice process--
arrest, adjudication, and confinement--according to our analysis of
available data. At the federal level, arrests by federal agencies
dropped from 60 Native American youth in 2010 to 20 in 2016, and at the
state and local level, arrests of Native American youth declined by
almost 40 percent from 18,295 arrested in 2010 to 11,002 in 2016.
Our analysis also found that the vast majority of these Native
American youth came into contact with state and local justice systems,
not the federal system. For example, from 2010 through 2016, there were
105,487 total arrests of Native American youth reported by state and
local law enforcement agencies (LEAs). In contrast, there were 246
Native American youth held in federal custody by the U.S. Marshals
Service due to arrest by federal LEAs during the same period.
We also found a number of similarities between Native American and
non-Native American youth in state and local justice systems. For
example, the offenses that Native American youth and non-Native
American youth were arrested, adjudicated, and confined for were
generally similar. \14\ In contrast, our analysis also showed a number
of differences between Native American and non-Native American youth in
the federal justice system. For example, our analysis showed variation
in the types of offenses committed by each group. From fiscal years
2010 through 2016, the majority of Native American youth in the federal
justice system were arrested, adjudicated, or confined for offenses
against a person, with the top two specific offenses being assault and
sex offenses. \15\ In contrast, the majority of involvement of non-
Native American youth in the federal system during the same period was
due to public order or drug and alcohol offenses at all three stages,
with the top two specific offenses being drug and immigration related.
\16\ Our September 2018 report contains additional information on the
differences between Native American and non-Native American youth
involved with the federal justice system.
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\14\ Additional discussion on similarities between Native American
and non-Native American youth involved with the state and local justice
systems can be found in our September 2018 report.
\15\ The data sources we reviewed for our September 2018 report
contained hundreds of specific offenses, such as simple assault,
illegal entry, and rape. To analyze the data, we categorized specific
offenses for all data sources into 1 of 22 offense categories, such as
assault, immigration, and sex offense. To determine the 22 categories,
we considered categories used in our prior work and consulted FBI's
Uniform Crime Reporting offense codes. The placement of specific
offenses into offense categories was carried out by a GAO analyst,
reviewed by additional GAO analysts, and confirmed by a GAO attorney.
We then grouped the offense categories into five broad categories--drug
and alcohol, person, property, public order, and other. To determine
the five broad categories, we considered categories presented in
National Center for Juvenile Justice's annual Juvenile Court Statistics
reports. The placement of offense categories into a broad category was
carried out by a GAO analyst and confirmed by a GAO attorney.
\16\ For the purposes of our analysis in our September 2018 report,
public order offenses could include disorderly conduct; fraud, forgery,
and counterfeiting; immigration; obstruction of justice; probation
parole; status offenses; traffic violations; and weapons violations.
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Further, we found that the percent of Native American youth
involved in most state and local systems was generally similar to their
representation in the youth populations in those states. For example,
our analysis found that the majority (about 75 percent) of Native
American youth arrested by state and local LEAs from calendar years
2010 through 2016 were located in 10 states: Alaska, Arizona,
Minnesota, Montana, New Mexico, North Dakota, Oklahoma, South Dakota,
Washington, and Wisconsin. These 10 states had among the highest
percent of Native Americans in their states' overall youth populations,
according to 2016 U.S. Census estimates we reviewed. \17\ In 2016, the
largest number of arrests by state and local LEAs occurred in Arizona
and South Dakota.
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\17\ According to 2016 census estimates, the following states had
the highest percent of Native Americans among the overall youth
population: Alaska: 19 percent; South Dakota: 14 percent; New Mexico:
13 percent; Oklahoma: 12 percent; Montana: 11 percent; North Dakota: 9
percent; Arizona: 7 percent; Wyoming: 4 percent; Washington: 2.7
percent; Oregon: 2.4 percent; Nebraska: 2.3 percent; Idaho: 2.1
percent; and Minnesota: 2 percent. For the remaining states, the
percent of youth who were Native American was less than 2 percent.
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In contrast, we found that representation of Native American youth
arrested, referred for adjudication, and confined at the federal level
during the period reviewed was greater (13 to 19 percent) than their
representation in the nationwide youth population (1.6 percent).
DOJ officials told us that the population of Native Americans in
the federal justice system has historically been higher than their
share in the nationwide population, and they attributed this and other
differences shown by our analysis to federal government jurisdiction
over certain crimes in Indian country, as well as the absence of
general federal government jurisdiction over non-Native American youth.
According to DOJ officials, this jurisdiction requires the federal
government to prosecute offenses that would commonly be prosecuted by
states if committed outside of Indian country. According to DOJ
officials, a small handful of federal criminal statutes apply to all
juveniles, such as immigration and drug statutes, but the federal
government has been granted greater jurisdiction over Native American
youth than non-Native American youth by federal laws that apply to
crimes committed in Indian Country, such as the Major Crimes Act. For
example, one DOJ official noted that the Major Crimes Act gives the
federal government exclusive jurisdiction over crimes such as burglary
and sex offenses committed in Indian country. This differs from the
treatment of non-Native American youth, who are not prosecuted in the
federal system for the same types of offenses, because the federal
government does not have jurisdiction over those youth for such
offenses. Non-Native American youth are instead subject to the general
juvenile delinquency jurisdiction of state and local courts.
Additionally, DOJ officials stated that tribal justice systems are
often underfunded and do not have the capacity to handle Native
American youths' cases. Therefore, they stated that when both federal
and tribal justice systems have jurisdiction, the federal system might
be the only system in which the youth's case may be adjudicated. For
these reasons, the percentage of Native American youth offenders in the
federal justice system is higher than non-Native American juveniles in
accordance with population size, according to DOJ officials.
Representatives from four of the five Native American organizations
we interviewed, whose mission and scope of work focus on Native
American juvenile justice issues and that have a national or
geographically specific perspective, noted that federal jurisdiction is
a key contributor to the higher percentage of Native American youth
involved at the federal justice level. Additionally, representatives
from all five organizations noted, similarly to DOJ officials, that
federal jurisdiction over crimes in Indian country is typically for
more serious offenses (specifically under the Major Crimes Act), such
as offenses against a person. \18\
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\18\ See our September 2018 report for additional information on
perspectives we collected from agency officials and the five Native
American organizations regarding factors that might contribute to the
data characteristics we observed.
---------------------------------------------------------------------------
Comprehensive data from tribal justice systems on the involvement
of Native American youth were not available. However, we identified and
reviewed a few data sources that provided insights about the arrest,
adjudication, and confinement of Native American youth by tribal
justice systems. See appendix II for a summary of our analysis of data
from these sources.
DOJ and HHS Offered at Least 122 Grant Programs; Tribal Governments or
Native American Organizations Were Eligible for Almost All but
in a Sample of Applications We Reviewed, Applied Primarily for
Programs Specifying Native Americans
In our September 2018 report, we identified 122 discretionary
grants and cooperative agreements (grant programs) offered by DOJ and
HHS from fiscal years 2015 through 2017 that could help prevent or
address delinquency among Native American youth. \19\ DOJ and HHS made
approximately $1.2 billion in first-year awards through the 122
programs over the period, of which the agencies awarded about $207.7
million to tribal governments or Native American organizations. \20\ A
list of the 122 programs, which focus on a range of issues such as
violence or trauma, justice system reform, alcohol and substance abuse,
and reentry and recidivism, can be found in our September 2018 report.
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\19\ To identify grant programs for our September 2018 report, we
conducted a keyword search of ``youth or juvenile'' in Grants.gov--an
online repository that houses information on over 1,000 different grant
programs across federal grant-making agencies. We reviewed the search
results of the three departments with the highest number of grant
program matches--DOI, DOJ, and HHS. Within DOI, we considered grant
programs from the Bureau of Indian Affairs and Bureau of Indian
Education; however, we ultimately removed DOI from the scope of our
review because DOI officials informed us that the bureaus did not have
any relevant grant programs from fiscal years 2015 through 2017.
\20\ The $1.2 billion does not include noncompetitive supplemental
or continuation awards that agency officials sometimes provide grantees
on an annual basis subsequent to the first year of funding. For
example, the fiscal year 2017 funding opportunity announcement for
HHS's Cooperative Agreements for Tribal Behavioral Health program
estimated it would provide up to $200,000 per year for up to 5 years to
grantees. If a grantee received $200,000 per year over a 5-year period,
the $1.2 billion total would include only the first year in which the
grantee received $200,000.
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The 122 DOJ and HHS grant programs we identified included 27
programs that specified tribes or Native Americans as a primary
beneficiary and 95 programs that did not specify these populations but
could include them as beneficiaries. \21\ For example, the Department
of Justice's Office of Juvenile Justice and Delinquency Prevention
offered the Defending Childhood American Indian/Alaska Native Policy
Initiative: Supporting Trauma-Informed Juvenile Justice Systems for
Tribes program for funding in fiscal year 2016. The goal of this
program--increasing the capacity of federally recognized tribes'
juvenile justice and related systems to improve the life outcomes of
youth who are at risk or who are involved in the justice system and to
reduce youth exposure to violence--explicitly focused on tribal
communities. On the other hand, the Sober Truth on Preventing Underage
Drinking Act grant program, which HHS's Substance Abuse and Mental
Health Services Administration offered for funding in fiscal year 2016
to prevent and reduce alcohol use among youth and young adults, is an
example of a program that did not specify tribes or Native Americans as
a primary beneficiary but could include them as beneficiaries.
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\21\ We determined which of the 122 grant programs we identified
specified tribes or Native Americans as a primary beneficiary and which
did not by reviewing whether the title, executive summary, overview, or
purpose of their funding opportunity announcements specifically
referenced tribes or Native Americans as the main or one of few
beneficiaries of the proposed grant program funding.
---------------------------------------------------------------------------
We found that tribal governments and Native American organizations
were eligible for almost all of the grant programs we identified.
Specifically, they were eligible to apply for 70 of 73 DOJ programs and
48 of 49 HHS programs. However, although tribal governments and Native
American organizations were eligible to apply for almost all of the
programs, we found in a non-generalizable sample of applications we
reviewed that they applied primarily for the programs that specified
tribes or Native Americans as a primary beneficiary. For example, we
reviewed applications for 18 DOJ grant programs and found that tribal
governments and Native American organizations accounted for over 99
percent of the applications for the 5 grant programs within the sample
that specified tribes or Native Americans as a primary beneficiary.
However, tribal governments and Native American organizations accounted
for about 1 percent of the applications for the 13 programs in the
sample that did not specify tribes or Native Americans as a primary
beneficiary.
We interviewed officials from DOJ's Office of Justice Programs
(OJP) and seven HHS operating divisions to obtain their perspectives on
why tribal governments and Native American organizations might not
apply for grant programs that do not specify them as a primary
beneficiary. \22\ They identified various reasons, including that
tribal governments and Native American organizations might not be aware
that they are eligible to apply for certain grant programs; might
believe that their applications to grant programs that do not specify
tribes or Native Americans as a primary beneficiary will not be
competitive with other applications; or might prefer to apply for those
grant programs that specify tribes or Native Americans as a primary
beneficiary.
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\22\ The seven HHS operating divisions were the: Administration for
Children and Families; Centers for Disease Control and Prevention;
Health Resources and Services Administration; Indian Health Service;
National Institutes of Health; Office of Minority Health; and the
Substance Abuse and Mental Health Services Administration.
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We also interviewed representatives from 10 tribal governments and
Native American organizations, who provided perspectives on whether or
not a grant program's focus on tribes or Native Americans as a primary
beneficiary affected their decision to apply for the program. \23\
Officials from 6 of 10 tribal governments and Native American
organizations indicated that they would consider any grant program that
met the needs of their communities, while the remaining 4 indicated
that a grant program's focus or lack thereof on tribes or Native
Americans could affect their ability to apply for it. \24\
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\23\ Specifically, we collected perspectives from officials from
seven federally recognized tribes, one of which included input from an
affiliated tribal university; and three Native American organizations,
which included an urban Indian organization; a non-profit that seeks to
provide social services, education, and behavioral health services; and
a tribal organization that represents and facilitates services for a
group of federally recognized tribes.
\24\ Three of the six tribal governments and Native American
organizations that indicated that they would consider any grant program
that met the needs of their communities also indicated a preference in
some instances for grant programs that focused on tribes or Native
Americans.
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Officials from the 10 tribal governments and Native American
organizations also identified various federal practices they found
helpful or challenging when applying for grant programs related to
preventing or addressing delinquency among Native American youth. \25\
When asked what federal practices, if any, were particularly helpful
when applying to receive federal funding, they most frequently
responded that they found it particularly helpful to be able to call or
meet with federal officials if they had questions about or needed help
on their applications. Regarding the biggest challenges, they cited
short application deadlines, difficulties collecting data for grant
program applications, and a scarcity of grant writers and other
personnel needed to complete a quality application.
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\25\ In addition to applying for federal grant programs, some of
the tribal governments and Native American organizations indicated they
had also pursued non-federal funding that could help prevent or address
delinquency among Native American youth. For example, officials from
one federally recognized tribe explained that they applied for funding
from the Ford Foundation and the Walmart Foundation. Officials from two
other federally recognized tribes stated they received grant program
funding from state governments.
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In addition, DOJ OJP and HHS officials provided perspectives on why
some tribal governments and Native American organizations might be more
successful in applying for federal funding than others. The officials
stated, among other things, that larger and better-resourced tribal
governments and Native American organizations were more successful at
applying for federal funding and that previously successful grant
program applicants were more likely to be successful again.
More detailed information on the perspectives from tribal
governments, Native American organizations, and agency officials
regarding the factors they believe affect the ability of tribal
governments and Native American organizations to apply successfully for
federal grant programs can be found in our September 2018 report.
Chairman Hoeven, Vice Chairman Udall, and Members of the Committee,
this completes my prepared statement. I would be pleased to respond to
any questions you may have at this time.
Appendix I: Data Sources for Federal, State and Local, and Tribal
Justice Systems by Phase of the Justice Process
For our September 2018 report, we obtained and analyzed record-
level and summary data from federal, state and local, and tribal
justice systems from 2010 through 2016. \1\ Figure 1 illustrates the
data sources we included in our report for each phase of the justice
process (arrest, adjudication, and confinement) in each justice system
(federal, state and local, and tribal). Generally, state and local
entities include those managed by states, counties, or municipalities.
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\1\ Generally, record-level data include information about one
individual at one point in time. In contrast, the summary data we
obtained generally include information about multiple individuals for a
certain period--such as a month. See GAO, Native American Youth:
Involvement in Justice Systems and Information on Grants to Help
Address Juvenile Delinquency, GAO-18-591 (Washington, D.C.: Sept. 5,
2018).
Appendix II: GAO Findings Regarding American Indian and Alaska Native
Youth Involvement with Tribal Justice Systems
Comprehensive data from tribal justice systems on the involvement
of American Indian and Alaska Native (Native American) youth were not
available. However, in our September 2018 report, we identified and
reviewed a few data sources that can provide certain insights about the
arrest, adjudication, and confinement of Native American youth by
tribal justice systems. \1\ The following is a summary of our analysis
of data from these sources.
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\1\ See GAO, Native American Youth: Involvement in Justice Systems
and Information on Grants to Help Address Juvenile Delinquency, GAO-18-
591 (Washington, D.C.: Sept. 5, 2018).
---------------------------------------------------------------------------
Arrests. Although comprehensive data on the number of tribal law
enforcement agency (LEA) arrests were not available, we obtained and
reviewed admission records from three juvenile detention centers in
Indian country managed by the Department of the Interior's Bureau of
Indian Affairs (BIA). \2\ Based on those records, at least 388 Native
American tribal youth were admitted to these three facilities in 2016,
as shown in table 1. In the Northern Cheyenne facility, for which we
obtained records for 5 years, the number of youth admitted increased
yearly between 2012 and 2016, from 14 to 204.
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\2\ As of April 2018, there were 205 known tribal LEAs, 20 tribally
operated juvenile detention centers, and three BIA-operated juvenile
detention centers in Indian country, according to BIA officials.
Additionally, there were 89 total detention programs, of which 15
housed Native American youth, as well as adults.
According to BIA officials, this growth in the number of youth
admitted to the Northern Cheyenne facility likely reflects an increase
in admissions of Native American youth from surrounding tribes.
Specifically, because the Northern Cheyenne facility is centrally
located, the officials said that the facility admits youth from other
tribes, which have grown accustomed to sending their youth to the
facility. BIA officials also noted that the Northern Cheyenne facility
services an area where there is a high rate of delinquency among youth,
and because the facility works well with Native American youth
struggling with delinquency issues, many tribes elect to send their
delinquent youth to the facility. Further, since 2012, the Northern
Cheyenne facility increased its bed space and staff, thus increasing
its capacity to admit more youth, according to BIA officials.
Even though comprehensive tribal arrest data were not available, we
reported in September 2018 that the Department of Justice's (DOJ)
Bureau of Justice Statistics (BJS) was undertaking an effort to
increase collection of arrest data from tribal LEAs. Specifically, this
data collection activity is the Census of Tribal Law Enforcement
Agencies. \3\ This collection activity, which BJS plans to conduct in
2019, is to capture information including tribal LEA workloads and
arrests, tribal LEA access to and participation in regional and
national justice database systems, and tribal LEA reporting of crime
data into FBI databases.
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\3\ See Department of Justice, Bureau of Justice Statistics, Tribal
Crime Data Collection Activities, 2017 (July 2017); and Department of
Justice, Bureau of Justice Statistics, Tribal Crime Data Collection
Activities, 2016 (July 2016).
---------------------------------------------------------------------------
Adjudication. Comprehensive data were not available to describe the
extent to which tribal courts processed Native American youth or found
them guilty. However, BJS concluded a tribal court data collection
effort--the National Survey of Tribal Court Systems--in 2015. Through
this survey, BJS gathered information from more than 300 tribal courts
and other tribal judicial entities on their criminal, civil, domestic
violence, and youth caseloads, and pretrial and probation programs,
among other things. \4\ DOJ officials told us that BJS has analyzed the
data, and plans to release results in the future.
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\4\ The National Survey of Tribal Court Systems gathered
information on the administrative and operational characteristics of
tribal justice systems (including budgets, staffing, the use of juries,
and the appellate system); indigent defense services; pretrial and
probation programs; protection orders; criminal, civil, domestic
violence, and juvenile caseloads; implementation of various enhanced
sentencing provisions under the Tribal Law and Order Act of 2010; and
indigenous or traditional dispute forums operating within Indian
country.
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Confinement. According to data published by BJS, the number of
youth in Indian country jails declined from 190 in 2014 to 170 in 2016
(about an 11 percent decrease). \5\
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\5\ To determine the number of Native American youth confined in
tribal operated jails in Indian country, we analyzed data reported by
BJS in its Jails in Indian Country Survey for 2014, 2015, and 2016. The
number of Native American youth confined was a mid-year count, as of
the last weekday in June for each year. According to the 2016 survey
report, there were at least 18 Indian country jails included in the
survey, which held juveniles ages 17 and younger.
The Chairman. Thank you, Dr. Goodwin.
Ms. Harp.
STATEMENT OF CAREN HARP, ADMINISTRATOR, OFFICE OF JUVENILE
JUSTICE AND DELINQUENCY PREVENTION, U.S. DEPARTMENT OF JUSTICE
Ms. Harp. Chairman Hoeven, Vice Chairman Udall and members
of the Committee, I am honored to appear before you today.
My name is Caren Harp. I am the Administrator of the
Justice Department's Office of Juvenile Justice and Delinquency
Prevention.
OJJDP's mission is to provide national leadership,
coordination and resources to prevent and respond to juvenile
delinquency and victimization. We accomplish this mission by
helping States, tribes and communities develop effective and
equitable juvenile justice systems.
OJJDP is one of six components of the Office of Justice
programs, the Justice Department's primary funding, research
and statistical arm. Each of these components makes substantial
investments in tribal public safety and none of those
investments are more important than the ones affecting Native
American youth.
The GAO report issued earlier this month examines many of
these programs in the context of tribal youth involvement in
the juvenile justice system. Between fiscal years 2015 and
2017, the Office of Justice Programs awarded more than $600
million to address delinquency among Native American youth.
We supported a tribal youth training and technical
assistance center, we worked directly with young people through
our Intertribal Youth Leadership Initiative, and provided
mentoring opportunities for both on-reservation and off-
reservation youth.
Support for tribal youth is built into programs across the
Department of Justice. A significant amount of tribal funding
comes through the Coordinated Tribal Assistance Solicitation or
CTAS.
CTAS allows tribes to apply for more than one grant through
a single, streamlined application. We have awarded more than
2,000 grants under this program.
Our commitment to tribes remains strong. We are awarding
more than $226 million to tribal communities in fiscal year
2018 funds. About half of that amount comes under the CTAS
umbrella. The remainder is allocated under a 3 percent set
aside of the Crime Victims Fund which will benefit more than
170 tribal communities.
The department's investments in tribal youth are extensive
and span the agency. Our Bureau of Justice Assistance funds
innovative tribal court models that address delinquency using
culturally-relevant, restorative justice practices.
Our Bureau of Justice Statistics initiated the national
survey of tribal court systems in 2014 and is preparing to
administer the first census of tribal law enforcement agencies.
The National Institute of Justice manages a substantial
portfolio of tribal research that includes studies of violence
and victimization among tribal youth. Our COPS Office, Office
for Victims of Crime, Office for the Chief Information Officer
and the Department's Office of Tribal Justice support the
Tribal Access Program, TAP as we call it. TAP gives tribes
access to Federal databases that enable law enforcement to
share information on registered sex offenders.
In all of its grant programs, the department builds in
robust safeguards against waste, fraud and abuse. Our Office of
Audit Assessment and Management leads our efforts to ensure
that we manage Federal funds effectively and efficiently.
We are continuously reviewing and working to improve grant
management policies, procedures and systems. We regularly
monitor grantee compliance.
Finally, I would be remiss if I failed to recognize the
department's non-grant making components. The Office of Tribal
Justice and the tribal liaisons in the U.S. Attorney's Offices
work closely with tribal officials to improve enforcement,
reduce crime and develop strategies for combating delinquency.
Their efforts are critical to meeting the needs of tribal
youth at every phase of the justice process.
The Department of Justice is fully engaged with tribes in
improving public safety in Indian Country. We remain especially
committed to empowering tribal youth to live productive, law
abiding lives.
On behalf of my colleagues, I am grateful for the support
of this Committee. I look forward to working with you to help
secure a bright future for our American Indian and Alaska
Native youth.
Thank you and I look forward to any questions you may have.
[The prepared statement of Ms. Harp follows:]
Prepared Statement of Caren Harp, Administrator, Office of Juvenile
Justice and Delinquency Prevention, U.S. Department of Justice
Chairman Hoeven, Vice Chairman Udall, Members of the Committee, it
is an honor to appear before you today. My name is Caren Harp, and I am
the Administrator of the Department of Justice's Office of Juvenile
Justice and Delinquency Prevention (OJJDP). OJJDP's mission is to
provide national leadership, coordination, and resources to prevent and
respond to juvenile delinquency and victimization. Our goal is to help
states, tribes, and communities develop and implement effective and
equitable juvenile justice systems that enhance public safety, hold
youth accountable, and empower youth to live productive, law-abiding
lives. As OJJDP Administrator, I oversee OJJDP grant programs and other
efforts that meet the Department's juvenile justice priorities.
OJJDP is one of six components of the Office of Justice Programs
(OJP), the Justice Department's primary grant-making, research, and
statistical arm. \1\ OJJDP and its fellow offices invest substantial
resources each year in tribal public safety activities, none more
important than those that affect Native American youth. The Government
Accountability Office's report, Native American Youth: Involvement in
Justice Systems and Information on Grants to Help Address Juvenile
Delinquency, \2\ (GAO Report), examined many of these programs, placing
them in the context of tribal youth involvement in our federal, state
and local, and tribal justice systems.
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\1\ Collectively, OJP, the Office on Violence Against Women (OVW),
and the Office of Community Oriented Policing Services (COPS) are the
Department's grant-making components.
\2\ GAO-18-591, Native American Youth: Involvement in Justice
Systems and Information on Grants to Help Address Juvenile Delinquency,
September 5, 2018. The report examines unique challenges faced by
Native American youth, and addressed two major areas: (1) what
available data shows about the number and characteristics of Native
American youth in federal, state and local, and tribal justice systems,
and (2) federal discretionary grants that could help prevent and
address delinquency among Native American youth as well as access to
those grants.
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The GAO Report outlines the Department's considerable funding
investments in tribal communities, continuing to this day. In FY 2018,
the Department is awarding more than $226 million to improve public
safety in tribal communities. About half of that--more than $113
million--comes through a mechanism called the Coordinated Tribal
Assistance Solicitation (CTAS), which allows tribes to apply for more
than one grant by submitting a single application. CTAS also gives
tribes greater flexibility to use grant programs to address their
criminal justice and public safety needs. More than 130 tribes, Alaska
Native villages, tribal consortia, and tribal designees will receive
grants under the CTAS umbrella.
In addition, OJP's Office for Victims of Crimes (OVC) will be
awarding grants under the Tribal Victim Services Set-Aside Program, a
3-percent set-aside of the Crime Victims Fund authorized by the
Consolidated Appropriations Act, 2018. More than 170 Native American
and Alaska Native communities will benefit from this new source of
funding, which is designed to expand and improve services to victims
who live in tribal communities.
The Department's investments in Indian country extend beyond these
grant resources. The GAO report addresses many of these efforts.
I. Justice System Data Collection
A number of Department of Justice components contributed to the GAO
Report and are involved in these data collection and reporting efforts:
the Federal Bureau of Investigation, the U.S. Marshals Service, the
Executive Office for U.S. Attorneys, the Bureau of Prisons, the Bureau
of Justice Statistics (BJS), and OJJDP.
The Tribal Law and Order Act of 2010 (TLOA), P.L. 111-211, 201(a)
at 124 Stat. 2261, directed the Department to collect data related to
crimes in tribal communities. BJS is set to administer the first Census
of Tribal Law Enforcement Agencies in April 2019. BJS also completed
the first National Survey of Tribal Court Systems, which had an overall
80 percent response rate among the 237 tribal courts during 2014. \3\
These data collections specifically gather needed information on the
administration and operational characteristics of these core tribal
justice agencies.
---------------------------------------------------------------------------
\3\ Bureau of Justice Statistics, Tribal Crime Data Collection
Activities, 2016-2018.https://www.bjs.gov/content/pub/pdf/tcdca1618.pdf
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In addition, BJS established several tribal justice panels to
ensure that tribal governments, their law enforcement agencies, and
their courts have a central role in the development, design, and
implementation of the data collection programs. These tribal justice
panels comprise tribal leaders, law enforcement officials, and court
representatives from across the country, along with representatives
from OJP, the Department's Office of Tribal Justice (OTJ), the FBI's
Indian Country Crimes Unit, and the Department of the Interior's Office
of Justice Services. Their role is to ensure a tribally-centered and
coordinated approach to establishing data collection systems that
address tribal public safety challenges and close the gaps in knowledge
about crime and justice in Indian country. TLOA requires BJS to report
to Congress annually its activities related to the tribal data
collection analyzed. In July 2018, BJS released the Tribal Crime Data
Collection Activities, 2016-2018, which summarizes the efforts to date.
II. Grant Programs and Resources that Address Juvenile Delinquency
The Department provided GAO application and award information from
73 FY 2015-FY 2017 grant programs, representing approximately $605
million in grants designed to help prevent or address juvenile
delinquency among youth. \4\ DOJ and HHS collectively awarded $207.7
million to tribal governments and Native American organizations. HHS
awarded $106.5 million and the Department awarded $101.2 million. \5\
The Department's grants were funded by OJP components: OJJDP; OVC; the
Bureau of Justice Assistance (BJA); the National Institute of Justice
(NIJ); and the Office of Sex Offender Sentencing, Monitoring,
Apprehending, Registering, and Tracking (SMART Office).
---------------------------------------------------------------------------
\4\ GAO Report, p. 57.
\5\ GAO Report, p. 57.
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The following section includes details on CTAS grants that have
supported efforts to address juvenile delinquency and support tribal
communities.
Coordinated Tribal Assistance Solicitation (CTAS)
OJJDP, OVC, BJA, OVW, and the Office of Community Oriented Policing
Services (COPS) have coordinated funding to support CTAS by Purpose
Area since FY 2010. \6\ By the end of FY 2018, the Justice Department
will have awarded more than 2,000 CTAS grants totaling more than $940
million to hundreds of American Indian and Alaska Native communities.
Through CTAS, applicants apply under one solicitation, which allows
tribes to plan comprehensively and strategically allocate resources. In
addition, one budget worksheet is required, one system of submitting
grants electronically is used, and application support is available
through a dedicated Response Center.
---------------------------------------------------------------------------
\6\ Applicants have the option to select the Purpose Area(s) that
address their public safety, criminal and juvenile justice and
victimization needs. For the FY 2018 application period, there were
nine Purpose Areas: (1) Public Safety and Community Policing (COPS
Office), (2) Comprehensive Tribal Justice Systems Strategic Planning
(BJA), (3) Tribal Justice Systems (BJA), (4) Tribal Justice Systems
Infrastructure Program (BJA), (5) Violence Against Women Tribal
Governments Program (OVW), (6) Children's Justice Act Partnerships for
Indian Communities (OVC), (7) Comprehensive Tribal Victim Assistance
Program (OVC), (8) Trial Juvenile Healing to Wellness Courts (OJJDP),
and (9) Tribal Youth Program (OJJDP).
---------------------------------------------------------------------------
The Department provides training and technical assistance for
tribes interested in applying for CTAS. Each year, the Department
organizes a webinar series that provides detailed information on each
section of the solicitation. In FY 2017, the Department offered two in-
person Accessing Grants to Strengthen Tribal Justice System Capacity
grant writing workshops targeting tribes that historically were
unsuccessful for receiving funds under the CTAS program. The workshops
were offered on January 18-19 in Columbia, South Carolina, and January
24-25 in Anchorage, Alaska. Many tribes that participated in the
training did go on to receive funding in the subsequent application
cycles. The workshops helped increase the success rate of the Cherokee
Nation in Oklahoma from 37 percent to almost 50 percent for receiving
grants in FY 2017. It helped raise the Nez Perce Tribe's success rate
for receiving CTAS grant awards to more than 40 percent, as well.
OJJDP also has an online tool that offers information on developing
high-quality CTAS applications. \7\ This resource is available to all
federally recognized tribes.
---------------------------------------------------------------------------
\7\ The tool can be found at https://tribalyouthprogram.org/
funding-opportunities/2018-ctas/. This guide contains strategies to:
(1) Read and comprehend a complex grant solicitation (2) Coordinate a
robust grant-writing team (3) Identify and articulate the needs of the
community through data driven processes (4) Generate and capture ideas
and solutions from the community (5) Organize key community players to
execute the proposed program.
---------------------------------------------------------------------------
CTAS Purpose Area 4
Under CTAS Purpose Area 4, Tribal Justice System Infrastructure
Program, tribes receive funding to renovate, expand, or replace
existing buildings (prefabricated or permanent modular facilities
only). These modifications enhance staff, resident, detainee, and
inmate safety and security for the following tribal justice-related
facility types: single jurisdiction or regional tribal correctional
facilities, correctional alternative or treatment facilities,
multipurpose justice centers (including police departments, courts,
and/or corrections), and transitional living facilities (halfway
houses). Ensuring that these supports are in place enhances the safety
and security of Native youth.
One example is the Eight Northern Indian Pueblos Council, which
constructed the Butterfly Healing Center, a residential and outpatient
treatment center for Native American youth ages 13 through 18. Prior to
constructing the center, the Council lacked alternative sentencing
options and resources to divert juveniles from receiving formal
criminal justice records in the state or federal system. The tribe now
provides treatment for youth that covers spiritual, physical,
psychological, medical, and cognitive health.
Another example of CTAS's impact is the work of the Yurok Tribe--
the largest tribe in California. As a result of BJA funding, the Yurok
Tribe was able to construct a fully functional Multipurpose Justice
Center that accommodates a courtroom, mediation area, self-help center,
probation, judge's chambers, clerk of the court, administration area,
public restroom and lobby areas, and cuff bench for in-custody
defendants. With additional BJA funding, the tribe is expanding the
Justice Center to incorporate the Yurok Tribal Police.
CTAS Purpose Area 6
Purpose Area 6, the Children's Justice Act Partnership for Indian
Communities Program (CJA), assists American Indian and Alaska Native
communities in developing, establishing, and operating programs to
improve the investigation, prosecution, and handling of child abuse
cases, especially child sexual abuse, by providing trauma-informed,
culturally appropriate services to child abuse victims and their
families.
CTAS Purpose Area 8
CTAS Purpose Area 8, Tribal Juvenile Healing to Wellness Courts,
supports tribes seeking to develop new court-based programs to respond
to the alcohol and substance use issues of juveniles and young adults
under the age of 21. Federally recognized tribes that have an existing
court system and are interested in developing a new Justice Healing to
Wellness Court are eligible to apply.
Another example of the impact of CTAS funding is the work of the
Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians' Tribal
Court, which has enhanced services to include a Youth Wellness Court.
The tribe used grant funds to hire an Associate Judge, Tribal
Presenting Officer (prosecutor), and Tribal Defense Advocate (public
defender). The court holds weekly sessions for wellness cases and the
Wellness Case Manager works with Tribal Youth prevention programs,
which are funded through a CTAS Purpose Area 9 Tribal Youth Program
grant.
CTAS Purpose Area 9
CTAS Purpose Area 9, Tribal Youth Program, supports and enhances
tribal efforts to prevent and reduce juvenile delinquency and ensure a
fair and beneficial juvenile justice system response to American Indian
and Alaska Native youth. The funding in this purpose area is available
to create, expand, or strengthen tribal-driven approaches along the
juvenile justice continuum, from prevention to intervention and
treatment.
Tribes successfully employ a variety of approaches to their youth
programming using Purpose Area 9 funding. These approaches include
equine therapy, diversion, and Tribal Court Appointed Special
Advocates, a cultural tribal youth program based on a model known as
the Healing Canoe Journey, which is considered a best practice model in
cultural prevention for Pacific Northwest Tribes.
Office of Juvenile Justice and Delinquency Prevention
OJJDP also funds other initiatives that address juvenile
delinquency in Indian Country, including the Tribal Youth Training and
Technical Assistance program, the National Intertribal Youth Leadership
Initiative, and several mentoring initiatives.
The OJJDP Tribal Youth Training and Technical Assistance
Center provides comprehensive training and technical assistance
for OJJDP tribal grantees. The Center works with grantees
through a strategic planning process and offers ongoing support
throughout the course of their grant program. All tribes,
regardless of whether they are funded by OJJDP, are eligible to
participate in an array of trainings, webinars, and online
virtual simulation trainings.
The National Intertribal Youth Leadership Initiative builds
on the successes of past OJJDP Tribal Youth Summits and expands
the leadership development support that OJJDP offers to tribal
youth. The initiative supports regional learning events for
tribal youth focused on developing leadership skills. Building
on these events, the youth will develop community service
projects related to juvenile delinquency issues in their
community. This may include a community awareness project on
opioid abuse, a presentation on positive decisionmaking skills,
supporting a drug take-back day, or other related activities.
The Department also funds a number of mentoring programs
through the Mentoring Opportunities for Youth Initiative
solicitation. Mentoring promotes positive behaviors, attitudes,
and outcomes for youth and reduces risk factors associated with
delinquency and juvenile justice system involvement, such as
poor school attendance, school failure, and alcohol and drug
abuse. It has been shown to improve academic performance and/or
social or job skills, support behavioral or other personal
development, and reduce consumption of alcohol and other drugs.
While these funds support mentoring programs operated by
mentoring organizations, the services may be available to
tribal youth (on and off reservation). Starting in FY 2015,
OJJDP added a requirement to Category 1: National Mentoring
within the Mentoring Opportunities for Youth solicitation that
applicants must target mentoring services and programs to
American Indian (AI) and Alaska Native (AN) youth both on and
off reservations. In addition, OJJDP created a category in the
FY 2018 Mentoring Opportunities for Youth solicitation
specifically identifying tribes as eligible for $1.25 million
each to support mentoring services for youth impacted
byopioids.
Bureau of Justice Assistance
BJA funds a number of programs that address juvenile delinquency.
For example, BJA sponsored a pilot program and practice guide to assist
with the development of joint jurisdiction courts. Jurisdiction is
exercised jointly when the tribal court and state or federal court
judges convene to exercise their respective authority simultaneously.
These courts bring together justice system partners and allow the
system to work collaboratively and creatively toward better results for
individuals involved in the adult and juvenile justice systems. There
are seven active joint jurisdiction courts and others in the planning
process. More information is available on the joint jurisdiction courts
webpage at https://walkingoncommonground.org/.
Another example is the Shingle Springs Rancheria and El Dorado
County Superior Court Family Wellness Court, which provides system-
involved youth and their families with a court-supervised alternative
that emphasizes culturally-appropriate restorative justice practices.
BJA funded the initial joint jurisdiction court pilot sites, then
provided intensive technical assistance to three regions to plan their
joint jurisdiction courts. BJA's work on this initiative informed an
update to A Manual for Developing Tribal, Local, State & Federal
Justice Collaborations, Second Edition. This publication can assist
tribes, states, counties, and others in planning a joint jurisdiction
collaboration.
National Institute of Justice
NIJ has supported research and evaluation studies on tribal crime
and justice issues since the 1980s. In partnership with OVC and OJJDP,
it is funding the Tribal Youth Victimization Study. This effort will
develop a process for collecting self-report data on American Indian
and Alaska Native youth violence and victimization. NIJ also has
developed a comprehensive research program on violence against American
Indian and Alaska Native women consisting of several projects that will
be accomplished over an extended period. The primary goal of these
projects is to document the prevalence and nature of violence against
Indian women living on sovereign tribal lands.
Grant Oversight and Management
Guarding against waste, fraud, and abuse with both tribal and non-
tribal grantees is a top priority of the Department. OJP's Office of
Audit, Assessment, and Management (OAAM) works to improve the
efficiency and effectiveness of justice programs and operations by
ensuring oversight and review of grants management policy and
procedures, grants management systems, and grants compliance. OAAM
continually improves and refines our risk tools and makes improvements
to our oversight processes.
Tribal Access Program
The Tribal Access Program (TAP) funded by SMART, COPS, and OVC, and
supported by OTJ and Justice Management Division's Office of the Chief
Information Officer, offers tribes valuable tools to improve public
safety. TAP allows tribes access to federal databases so that law
enforcement may more quickly share information on registered sex
offenders and protection orders. It also enables tribes to more
effectively serve and protect their communities by ensuring the
exchange of critical data across the Criminal Justice Information
Services systems and other national crime information systems, for both
civil and criminal purposes.
The SMART Office also is working regularly with federally
recognized tribes that have elected to implement the Sex Offender
Registration and Notification Act (SORNA). Over 130 tribes have already
substantially implemented SORNA and more continue to work towards this
goal.
Additional DOJ Tribal Collaboration
In addition to grant programs, the Justice Department remains
committed to addressing juvenile delinquency at every phase of the
justice process (arrest, adjudication, and confinement) as it
implements TLOA. OTJ and the network of tribal liaisons in the United
States Attorneys' offices and specialists throughout the country
collaborate with tribes to improve law enforcement functions and reduce
crime. For example, each U.S. Attorney's office with jurisdiction in
Indian Country regularly consults with tribes to develop strategies to
combat juvenile delinquency. These offices each have a tribal liaison
to link efforts between the Department and tribal leadership. The
Executive Office for U.S. Attorneys also trains federal, state, local,
and tribal attorneys and law enforcement staff on law enforcement
issues in Indian country.
As the Department continues to enhance its public safety efforts in
tribal communities, we remain committed to addressing juvenile
delinquency while empowering youth to live productive, law-abiding
lives. Thank you, and I look forward to addressing your questions.
The Chairman. Thank you, Ms. Harp.
Deputy Assistant Secretary Tahsuda.
STATEMENT OF JOHN TAHSUDA, PRINCIPAL DEPUTY
ASSISTANT SECRETARY FOR INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Tahsuda. Thank you, Mr. Chairman.
If I could briefly clarify, thank you for mentioning my
tenure with the Committee. I wanted to make sure I clarify that
during my tenure at the Committee, I worked for Senator McCain
for two years when he was the Chairman, for approximately one
year as the Deputy Staff Director; and approximately one year
as the Staff Director. I wanted to make sure that was clear on
the record.
Thank you, Chairman Hoeven, Vice Chairman Udall, and
members of the Committee.
I am the Principal Deputy Assistant Secretary for Indian
Affairs at the Department of the Interior. Thank you for the
opportunity to provide a statement on behalf of the department.
The department recognizes the tremendous challenges faced
by many juveniles in Indian Country. Over a quarter of these
children live in poverty, compared to 13 percent of the general
population.
Native children are exposed to violence at extremely high
levels, and are at a greater risk of experiencing trauma
compared to their non-Native peers. According to the U.S.
Department of Justice's Defending Childhood Initiative,
exposure to violence causes major disruptions of basic
cognitive, emotional and brain functioning essential for
optimal development and, thus, if exposure to violence goes
untreated, these children are at a significantly greater risk
than their peers for aggressive, disruptive behaviors; school
failure; and alcohol and drug abuse.
In light of these significant challenges facing our Native
youth, the BIA has recognized that the conventional juvenile
justice approach of simply incarcerating juveniles is often
ineffective and may, in fact, increase delinquency rates.
The BIA has long urged tribal policy makers to transition
toward less punitive models of juvenile justice. We are
encouraged that the juvenile systems do offer solution-focused
alternatives to incarceration and more restorative approaches
and early intervention options for juveniles within Indian
Country.
The BIA Office of Justice Services regularly engages in
crime prevention and community involvement projects to reach
youth at the local level throughout Indian Country. Local BIA
and tribal law enforcement agencies often host Law Enforcement
Days where officers can display and demonstrate patrol and
emergency response vehicles and equipment, K-9s, and advanced
technologies.
These events, along with Toys for Tots, Shop with a Cop,
DARE, and suicide awareness/prevention events, seek to connect
with juveniles in a consistent and positive manner.
The BIA also funds 16 School Resource Officers located at
Indian Country schools. These police officers work full time in
the child's environment, providing presentations on stranger
danger, anti-bullying, and the dangers of gangs and illegal
drugs.
Utilizing these officers to build trust with elementary and
middle school age children in numerous Indian communities is
our fundamental prevention component and evidences our
commitment to keeping juveniles out of the justice system when
at all possible.
The BIA conducts Tribal Court Assessments, which include a
component to evaluate the challenges and successes of juvenile
justice systems in Indian Country. For example, Juvenile
Wellness Courts provide options for effective drug and alcohol
treatment programs as well as bringing in culturally-based
practices, such as ``traditional talking circles'' which have
been effective in combating truancy in some tribal courts.
The BIA has also funded juvenile specific requests from
various tribal courts. For example, the Pueblos of San
Ildelfonso and San Felipe recently received funding to train
their probation officers in juvenile issues, and the Rosebud
Sioux Tribal Court received funding for two juvenile probation
officers.
The Lower Sioux Indian Community in Minnesota has a
juvenile population that represents 38 percent of tribal
members. The BIA was able to provide funding to the Lower Sioux
Tribal Court for a truancy prevention specialist to work with
youth who exhibit challenging behaviors and reduce the number
of youth involved in truant activities.
The BIA has also funded public defender positions in tribal
courts to work specifically with youth involved in the justice
system. Specifically, Healing to Wellness Courts require the
youth to be represented by a public defender to attend the
weekly staffing meetings, subsequent multidisciplinary team
meetings, and the court hearing.
We agree with our colleagues at the Department of Justice
that if youth come into contact with the juvenile justice
system, the contact should be both just and beneficial. In
certain circumstances, incarceration is appropriate. The BIA
works to ensure that academic education and mental health
counseling are implemented inside of BIA and tribal youth jails
to appropriately support those youth needing incarceration.
In BIA-run juvenile detention facilities, the Office of
Justice Services contracts to provide qualified teachers and
educational support for juveniles. Over the past year, we
provided educational support to 258 juveniles of varying ages,
academic and maturity levels, incarceration periods, and
interests. A number of positive outcomes were achieved,
including strong engagement and participation in academic
activities by juveniles with past disruptive behaviors in
school.
Again, thank you for the opportunity to provide this
statement. The BIA is committed to continuing its efforts in
early intervention to reach youth throughout Indian Country and
provide solution-focused and restorative approaches to minimize
repeated engagement with the justice system.
I look forward to working with the Committee on juvenile
justice issues affecting our Native youth. I am happy to answer
any questions the Committee may have.
[The prepared statement of Mr. Tahsuda follows:]
Prepared Statement of John Tahsuda, Principal Deputy Assistant
Secretary For Indian Affairs, U.S. Department of the Interior
Good afternoon, Chairman Hoeven, Vice Chairman Udall, and Members
of the Committee. My name is John Tahsuda and I am the Principal Deputy
Assistant Secretary for Indian Affairs at the Department of the
Interior. Thank you for the opportunity to provide a statement on
behalf of the Department. The Department recognizes the tremendous
challenges faced by many juveniles in Indian Country. As indicated in
the Government Accountability Office report that is the focus of this
hearing, Native children are among the most vulnerable groups of
children in the United States.
More than a quarter of these children live in poverty, compared to
13 percent of the general population. Native children are exposed to
violence at extremely high levels, and are at a greater risk of
experiencing trauma compared to their non-Native peers. According to
the U.S. Department of Justice's (DOJ) Defending Childhood Initiative,
exposure to violence causes major disruptions of basic cognitive,
emotional and brain functioning that are essential for optimal
development and, thus, if exposure to violence goes untreated, these
children are at a significantly greater risk than their peers for
aggressive, disruptive behaviors; school failure; and alcohol and drug
abuse.
In light of these significant challenges facing our Native youth,
the BIA has recognized that the conventional juvenile justice approach
of simply incarcerating juveniles is often ineffective and may, in
fact, increase delinquency rates. The BIA has long urged tribal policy
makers to transition toward less punitive models of juvenile justice.
The BIA also encourages juvenile systems to offer solution-focused
alternatives to incarceration and more restorative approaches and early
intervention options for juveniles within Indian Country.
The BIA Office of Justice Services regularly engages in crime
prevention and community involvement projects to reach youth at the
local level throughout Indian Country. Local BIA and tribal law
enforcement agencies often host ``Law Enforcement Days'' where officers
can display and demonstrate patrol and emergency response vehicles and
equipment, K-9s, and advanced technologies. These events, along with
Toys for Tots, Shop with a Cop, DARE, and suicide awareness/prevention
events, seek to connect with juveniles in a consistent and positive
manner.
The BIA also funds 16 School Resource Officers located at Indian
Country schools. These police officers work full time in the child's
environment, providing presentations on stranger danger, anti-bullying,
and the dangers of gangs and illegal drugs. Utilizing these officers to
build trust with elementary and middle school age children in numerous
Indian communities is our fundamental prevention component and
evidences our commitment to keeping juveniles out of the justice system
when at all possible.
The BIA conducts Tribal Court Assessments, which include a
component to evaluate the challenges and successes of juvenile justice
systems in Indian Country. For example, Juvenile Wellness Courts
include options for effective drug and alcohol treatment programs as
well as bringing in culturally-based practices, such as ``traditional
talking circles'' which have been effective in combating truancy in
some tribal courts.
The BIA has also funded juvenile specific requests from various
tribal courts. For example, the Pueblos of San Ildelfonso and San
Felipe recently received funding to train their probation officers in
juvenile issues, and the Rosebud Sioux Tribal Court received funding
for two juvenile probation officers. The Lower Sioux Indian Community
in Minnesota has a juvenile population that represents 38 percent of
Tribal members. The BIA was able to provide funding to the Lower Sioux
court for a Truancy Prevention Specialist to work with youth who
exhibit challenging behaviors and reduce the number of youth involved
in truant activities, and to address the adverse effects of those
activities.
The BIA has also funded public defender positions in tribal courts
to work specifically with youth involved in the justice system.
Specifically, Healing to Wellness Courts require the youth to be
represented by a public defender to attend the weekly staffing meetings
and subsequent multi-disciplinary team meetings and the court hearing.
Tribal courts at Bay Mills and Leech Lake have received funding for
Juvenile Public Defenders as well as Juvenile Case Wellness Managers
for Healing to Wellness Courts.
In Alaska, the BIA funded the Central Council of the Tlingit and
Haida Indian Tribes' request for a Juvenile Healing to Wellness Court,
and the Native Village of Barrow was funded for a Juvenile Intake
Program position within their court. According to the Barrow court, the
opioid crisis is affecting many of the youth, and the Juvenile Intake
Program will assist in providing culturally-specific assistance to
those youth in crisis.
We agree with our colleagues at the Department of Justice that if
youth come into contact with the juvenile justice system, the contact
should be both just and beneficial. In certain circumstances,
incarceration is appropriate. The BIA works to ensure that academic
education and mental health counseling are implemented inside of BIA
and tribal jails to appropriately support those youth needing
incarceration.
In BIA-run juvenile detention programs, the Office of Justice
Services enters into commercial contracts to provide qualified teachers
and educational support for juveniles. Over the past year, we provided
educational support to 258 juveniles of varying ages, academic and
maturity levels, incarceration periods, and interests. A number of
positive outcomes were achieved, including strong engagement and
participation in academic activities by juveniles with past records of
disruptive behaviors in school. Overall, discipline issues in the
classrooms were largely non-existent, and academic credit was
maintained for some juveniles when they transitioned back to their
schools. Further, multiple juveniles requested to study for the GED or
HiSET tests.
A current Memorandum of Agreement between the BIA, Bureau of Indian
Education, and the Department of Health and Human Services (HHS)
outlines commitments to ensure that appropriate mental health
counseling is implemented effectively inside juvenile detention
centers. Our common goal continues to focus on improving the good
health, wellbeing and proper placement for Native American youth.
Finally, the BIA, in conjunction with the DOJ Office of Juvenile
Justice and Delinquency Prevention, has developed a comprehensive Model
Juvenile Code designed to incorporate assessments that identify needs
and prescribe services and solutions to address those needs by working
with HHS and incorporating all types of services available. The hope is
to create options for tribes to incorporate much needed services
including specialized traditional remedies that address issues
affecting Native juveniles in crisis.
A number of the BIA activities I have described are also vitally
important to reducing recidivism for juveniles. For example, BIA's
educational programs for incarcerated juveniles assist in preparing
them to function outside the justice system and have resulted in strong
engagement and participation in academic activities by juveniles with
past records of disruptive behaviors in school. Wellness Courts funded
by BIA help to reduce recidivism by providing options for effective
drug and alcohol treatment programs and cultural-specific assistance.
BIA also staffs a Recidivism Coordinator in the Office of Justice
Services who has been working closely with the Pueblos of San Felipe
and San Ildefonso and judges from those Pueblos on juvenile recidivism.
These judges also serve on the U.S. Sentencing Commission Indian Task
Force, which has made recidivism one of their priorities.
BIA is also focusing on preventing the need for juvenile
incarceration, through the BIA's School Resource Officer program,
discussed above, which works to build trust with elementary and middle
school age children in numerous Indian communities.
Juvenile recidivism could be further reduced through a number of
avenues. A recently expired recidivism program provided the authorities
and resources to assist in addressing juvenile recidivism. State
notification to tribes when a juvenile who is a tribal member interacts
with the justice system (including when the issue occurs off
reservation) allows a tribe to coordinate with the state to provide
resources to the juvenile to keep the juvenile from re-offending. The
most pressing need, however, is the need to ensure access to services.
Juveniles within the state and tribal justice systems are in
desperate need of services, such as mental health counseling, substance
abuse counseling, vocational training, and life skills training. These
items are often court-ordered if the services are available. At
present, in many tribal courts, these services are not readily
available. Additionally, detention facilities continue to face
obstacles in obtaining medical and mental health treatment for adult
and juvenile inmates. Likewise, Wellness Courts are in need of case
managers and traditional mentors to assist juveniles in the system,
particularly since traditional and community means are often more
successful in addressing recidivism in the juvenile community.
Again, thank you for the opportunity to provide this statement. The
BIA is committed to continuing its efforts in early intervention to
reach youth throughout Indian Country and provide solution-focused and
restorative approaches to minimize repeated engagement with the justice
system. I look forward to working with the Committee on juvenile
justice issues affecting our Native youth.
I am happy to answer any questions the Committee may have.
The Chairman. Thank you.
Judge Abinanti.
STATEMENT OF HON. ABBY ABINANTI, CHIEF JUDGE, YUROK TRIBAL
COURT
Ms. Abinanti. Good afternoon to Yurok's Senator McCain.
[Greeting in native tongue.]
I thank you for this opportunity to address you. I
appreciate the words I have heard from you all today. The words
I have heard from the staff people here are right and they have
given you the information that you need to make a start. I
appreciate that this is happening.
I would say the best information is always going to come
from the people you are trying to help. When you look at the
situation in our homes and our homelands, the border towns,
including those children, the rural areas in America are
suffering. They are suffering because we are not given enough
help. I do not want anybody's children left behind because it
is not right. It is not the world's way and it is not ever
acceptable to any of us.
As we help ourselves in the programs we set up and I try to
set up, I try to work with the children who come before me, all
of the children. I feel a responsibility to them, as you must
also.
I would say looking at all those numbers, they are horrible
numbers, they are not just numbers; they are children. They
have names and faces. We need to say what can we do to keep
this from having? A lot of it is going to be related to
education and helping put out teams, as the Bureau indicated,
to help our children stay in school. You cannot run any nation
in the world now with 11-year-old dropouts. I have more 11-
year-old dropouts than you ever want to know.
That cannot be allowed to continue. It needs a
strengthening of infrastructure in the villages. We were
invaded a long time ago, we picked up a lot of bad habits and
bad things have happened.
We are ready to walk away from that and walk into the
future with our partners in our rural communities, to try to
say to each other this is what we need to do to go forward. We
need to work with each other. These programs need to be
available to all of our children in these schools to move
forward. We cannot have the truancy rates that we have now and
expect anything good to happen because it will not.
When I talk about infrastructure, I am talking about what
happens when you have a village, you have an invasion and you
have now. Today, you call the village an infrastructure. You
have to know these children and you have to get them to school.
You cannot have them wandering around during the day. You
cannot have them unhappy.
As talked about, historical trauma was a real event and
those real events result in real behavior. We must learn, as
the adults in their community, to overcome that behavior so we
can help them through their schooling so they are prepared to
come here, talk with you, work with you, and help this Country
move forward.
When we look at the concepts of restorative justice and
working together, truly we are looking at taking
responsibility. To me, that is what I mean as a Yurok when I
say restorative justice. We are responsible to and for, and you
must exercise that to be a Yurok. There is no other way. That
is my expectation of you. That is what you will do.
We need help to do that. We need help for our adults to
learn how to do that and how to keep their kids in school. It
is not something we had. Somehow, people skipped over all that
learning process and expect us to do it. It does not happen
that way.
You have to create an infrastructure that supports it. I am
saying all these numbers, all these facts, all of those were
true, but when you look to an infrastructure, look to one that
creates a systemic change for our children. In my mind, that
has to be related to the schools.
Thank you.
[The prepared statement of Ms. Abinanti follows:]
Prepared Statement of Hon. Abby Abinanti, Chief Judge, Yurok Tribal
Court
Introduction
Good afternoon Chairman and distinguished Committee members. I am
Abby Abinanti, Chief Judge of the Yurok Tribal Court, and I am a Yurok
Tribal member. I am a graduate of Humboldt State College and the
University of New Mexico School of Law. When I was admitted to the
California State Bar in 1974, I was the first California Native woman
admitted to the California State Bar. I am one of a very limited number
of attorneys who have been practicing tribal child welfare law since
prior to the 1978 enactment of the Indian Child Welfare Act. I served
as a California Superior Court Commissioner for the City and County of
San Francisco assigned to the Unified Family Court for the 18 years
before retiring in September 2011. I have continued to serve as Chief
Judge for the Yurok Tribal Court since my appointment in March 2007,
and run the Yurok Tribal Court's Wellness Court Program. Additional
tribal court experience includes serving as Chief Magistrate, Court of
Indian Offenses, for the Hoopa Valley Indian Reservation from 1983-1986
and as a Judge by special appointment for many other tribal courts
including Shoshone-Bannock Tribal Court (1985), Hopi Tribal Court
(1986), and Colorado River Indian Tribe (1994). I have served as the
President of the Board of Directors of the Tribal Law and Policy
Institute since its establishment in 1996.
The Yurok Tribe is the largest federally recognized tribe in
California. The Tribe's reservation, the second largest in California
is located on the lower Klamath River in Humboldt and Del Norte
Counties in Northern California. The Yurok Reservation extends for one
mile on either side of the Klamath River, from the Pacific Ocean at the
mouth of the river to upstream approximately 45 miles to just above the
Yurok village of Weitchpec and the confluence with the Trinity River.
While our tribal membership is approximately 6,200, there are more
than 10,000 Yurok descendants living on the reservation and throughout
the most rural areas Del Norte and Humboldt Counties. The Tribe has a
very active culturally based Tribal Court and Education and Social
Services Departments that provide services to Yurok families, including
youth and juvenile delinquents. The Tribe works closely with Del Norte
and Humboldt Counties to provide services.
As my testimony will explain, the GAO report is a positive step
toward gathering information and data regarding Native American youth
in involvement in the justice system and grants to support such work.
There is a great need for more accurate data regarding tribe specific
juvenile involvement. This Committee should consider authorizing a
pilot project to develop data collection systems to track Native
American juvenile justice statistics. Further, there should be an
increase in educational grants to tribes directly as a means to prevent
juvenile delinquent behavior. Finally, if efforts through education
fail, and Native American youth find themselves in the justice system,
Tribal Courts are best suited to provide restorative justice that leads
to positive lifelong results. Federal funding to support tribal courts
in PL-280 states should be increased as well as tribal court
jurisdiction to process juvenile claims.
Discussion
I. More Data Is Needed Regarding Native American Youth In Justice
Systems
As the GAO Report on ``Native American Youth Involvement in Justice
Systems and Information on Grants to Help Address Juvenile
Delinquency'' notes accurate figures as to juvenile justice issues in
Indian Country are hard to obtain. The lack of data regarding Native
American juvenile incarceration remains lacking and is an obstacle to
finding solutions. For example, looking only at P.L. 280 states, such
as California, there is little data available because State systems are
not required to accurately report tribal contact/incarceration rates
for juveniles or adults. The question of whether an arrestee is Native
American and if so, what tribe are not an arrest intake questions.
Tribes in adult matters can access public records and go through the
tedious process of ``hand'' reviewing all arrests to discern tribal
affiliation. As to juveniles, however, the Tribes are left to having
parents, caretakers (including foster care parents) report to the
Tribes--only when and if they seek the assistance of the Tribes. The
Yurok Tribe has resorted to inferential reporting primarily by looking
at school related figures and/or foster care referrals which are
compiled on a more reliable basis. While this helps, states should be
required to collect tribe specific data and then share with the tribe
to more accurately understand the scope of the problem of Native
American youth in the justice systems. A critical step in collecting
data is federal grants to support pilot programs for developing data
collection systems in Native American juvenile justice. We strongly
urge this Committee to develop such a pilot program.
II. Juvenile Justice In Yurok Country
The Yurok Tribal Court does not currently have a delinquency court
or the staff to manage a juvenile detention or treatment center for
juvenile youth. Truancy court is handled in Del Norte and Humboldt as
criminal courts, such that parents can be jailed if their children are
truant. Juvenile Justice and truancy is an area that both counties are
interested in creating joint jurisdiction court with the Yurok Tribe.
Del Norte and Humboldt Counties have identified that Native
American children are at greatest risk of maltreatment based on the
disproportionate number of Native American children in foster care in
both Counties. Though the Native population of both Counties does not
exceed 9 percent, the rate of Native children in foster care has been
as high as 40 percent and continued to be high in 2018. The Yurok Tribe
represents the largest population of children in foster care within
both Counties. Educational results for foster children show that these
children are at substantially higher risk than the children who are not
in this system.
Yurok tribal members make up about 25 percent of those in local
jails on any given day, or one out of four inmates. By comparison,
Yurok make up 6 percent of the Humboldt County total population, and 5
percent in Del Norte County. This means we are over-represented in the
local criminal justice system at a rate up to 5 times our share of the
population. In addition, our counts indicate that Yurok tribal members
are 11 times more likely to be incarcerated in the local jail than the
average American. In addition, the response rate (911 calls etc.) in
rural California is considered the worst in the nation and the Yurok
Tribe is located in the most impoverished and rural communities within
these poor rural counties. The Yurok Tribal Court attempts to track
adult members incarcerated in the local county jails.
Equally disturbing are the increasing numbers of Yurok adult women
incarcerated. (Many of these women are parents.) In 2015, women made up
9.5 percent of those held under the jurisdiction of state or federal
correctional authorities in the United States, including jails, prisons
and the supervision population (Bureau of Justice Statistics, National
Prisoner Statistics, 2005-2015). Yet, women make up approximately 30
percent or three out of every ten Yurok offenders in the local jails,
and this figure does not include those on probation, which would only
increase the female share of tribal offenders. This means tribal women
are five times more likely to be incarcerated than their non-Native
peers. The Yurok Wellness Court and Victims Advocate Program have
partnered to offer girls programing to address the issue of increased
involvement of young women in truancy behavior, and criminal behavior.
Advocates seek to assist families who bring these young women to the
attention of the Court either because they are in foster placement or
because they are co-referred to the delinquency court. The Youth Court
will maintain contact with youthful offenders even when they are placed
out of state through Wellness Court hearings. (After care services are
minimal.)
With additional funding and jurisdictional authority, the Tribal
Court could develop a delinquency court that holds children, parents
(native and non-native) accountable, and provides critical culturally
appropriate support programs. Doing so has been a long term goal of the
Tribe reflected in part by H.R. 3847, the Yurok Lands Act. The bill, if
made law, would provide critical support for the Yurok Tribe's
governmental services, including the Tribal Court.
III. Education and the Juvenile Justice System
Children on the Yurok Reservation attend schools in the State of
California Klamath-Trinity United School District. There are two
elementary schools on the Yurok Reservation. Children must attend off-
reservation middle and high schools, as much as 60 miles away from
their homes. The Tribe has an education department that works closely
with the schools serving Yurok children. Unfortunately, these schools
have largely failed Yurok students; most of them dropping out in middle
school, and a small percentage of those making it to high school,
actually graduate.
The high school dropout rate is as high as 80 percent for
incarcerated juvenile delinquents. To avoid dropping out, several
juvenile delinquents attend local continuation schools. Yurok students
make up a disproportionately high percentage of students in
continuation schools. These schools support high-risk students. While
Yurok students may graduate, their attendance at these schools means
that they were most likely involved with the juvenile justice system or
suspended or expelled from traditional schools. More concerning is the
undocumented truancy issues due to illness or lack of transportation
that leads to falling behind in school curriculum, which generally
leads to behavior problems, truancies, and a downward spiral to
juvenile delinquency.
The Tribe strongly believes that early intervention into truancy
and behavior problems at schools is the best prevention measure for
juvenile delinquency. The Tribe has several education programs
including tutoring, school transportation services and many others
offered to help students. Tribal control of education to provide
culturally appropriate instruction and activity is key. In addition,
the Tribe was featured in Anna Deavere Smith's 2016 Broadway production
``Notes from the Field: Doing Time in Education,'' which was culled
from more than 200 interviews centering on the realities of the U.S.
education and justice systems that push poor students from schools to
prisons. Directed by Leonard Foglia (``Master Class''), ``Notes from
the Field'' had a run at the American Repertory Theater in Cambridge,
Mass. prior to the run at Second Stage on Broadway. (An earlier version
of the show, directed by Leah C. Gardner, played at Berkeley Rep last
year.)
This anecdotal representation concerned a young man who had started
his interfacing with justice system at the age of 8, and was on his
third strike by the time the Yurok Tribal Court intervened to
successfully divert him from the criminal justice system. (See also
``Tribal Justice'' a documentary film by Anne Makepeace produced in
2017 which highlighted this case and others in an effort to show the
advantages of locally controlled tribally justice systems.) Anecdotal
information while illustrative has not allowed us to secure the funding
needed to make long term improvements. The Tribe is capable, with
assistance of establishing data collection and remediation programs
that can and will prove the value of our efforts. We can only do so
with the assistance of federal funding in educational areas that is
sufficient to provide systemic interventions.
IV. Opioid Crisis In Yurok Country
The Yurok Tribe is also a plaintiff in Yurok Tribe v. Purdue Pharma
LLP et. al. an opioid class action lawsuit. This case details the
horror that has been inflicted on our families by this latest epidemic.
Much of this harm has been introduced by opioid manufactures and
distributors and medical providers and is having a significant impact
on minors and family units. The details of that harm is set out in the
complaint. In sum, the Yurok Reservation community has one of the
highest opioid usage, addiction, and overdose rates in the County. As a
result, Yurok family units are being torn apart. Children often don't
have healthy parents or other care providers which results in increased
likelihood of juvenile delinquent behavior.
V. Increase Education and Juvenile Delinquency Grant Funding for Tribes
The Tribe is severely limited in it's approaches by piecemeal
justice initiatives which must interface with the State court system.
Over 90 percent of our funding is federal based, that means we must
compete for pilot project and ongoing program funding once we discover
causation issues in the hopes of establishing corrective/sustainable
measures to make systemic changes. It is clear from this brief summary
that our educational issues need to be addressed in a serious
comprehensive manner if we wish to address juvenile delinquent behavior
and the resultant long term effects which lead to lifelong involvement
with the justice system and failed communities.
Pilot projects which are systemically motivated e.g., educational
interventions that target suspensions/truancy and parental/caregiver
interventions can yield long term benefits. There is no shortcut to
reversing the harms of inadequate educational responses. (There are
many reasons education is problematic in our community including the
historical intergenerational trauma of boarding schools.) However, it
is a better approach to strengthen the family/community/tribal child to
lessen the number of young people whom are being sentenced to
facilities for unacceptable behaviors. Re-entry issues can and should
be treated differently and require additional staff; too often
aftercare planning is neglected as the treatment is treated as
incarceration completed with no follow up which leads to the defeat of
recidivism.
Systemic pilot projects can be created as community demonstration
projects designed to reverse trends. Or we can continue to proceed with
program funding for limited impact programs in the hopes that community
wide solutions can grow from limited impact programming. The truth is,
however, that infrastructure is needed. It can be postponed but it can
not be avoided.
VI. Grant Programs Mentioned in the GAO Report the Yurok Tribe has
Applied for and Received or Been Denied
Yurok has received a number of the grants some of which are
addressed in the GOA report that we are grateful for, but we have
significant unmet needs in the area of juvenile justice. Below is a
list of Grants that the Yurok has applied for and were either awarded
or not.
2014
FEMA Public Safety--funded BIA Public Safety-funded
2015
DOJ 2015 Combined Tribal Assistance Solicitation--awarded DOJ O V A
W A Grants to Encourage Arrest Policies & Enforcement of Pro of
Protective Orders--awarded HumCo Police Office & Juvenile Probation
Officer--not awarded HUD Klamath Glen Youth Center--not awarded I WOULD
MOVE THE PENDING TO THE BOTTOM OF THIS LIST N7 Yurok Youth Recreation
Program--pending HAF Yurok Youth Cultural & Environmental Stewardship
Program--pending Youth outside Yurok Youth Cultural & Environmental
Stewardship Program--pending
2016
YT Environ Stewardship Mentoring & Skill Building Program--
Education--not awarded YVFD & YTEP Measure Z Funds--tribal police--not
awarded Yurok 2016 DOJ-BJA CTAS--tribal court--funded Basketball
uniforms--funded
Yurok Healing Families Program--tribal court--funded Grants to
Exercise Special DV Criminal Jurisdiction--tribal court--funded
2017
Youth Center Remodel (Bates Bldg.)--funded Substance Abuse
Treatment Capacity in Adult Wellness--not funded USDA Youth Center
Equipment--Not funded 2017 DOJ CTAS--Purpose Area 1,3,5, & 6--tribal
court--funded Conserv Trails to Traditional Ecological Knowledge--
funded HUD Ke'pel Head Start--Not funded Girls & Young Women's Support
Group--Wietchpec--funded Archie Thompson Sr. Baseball field-Klamath--
not funded
2018
PFC & Tribe Youth Leadership Project- Playground--funded DOJ CTAS
Yurok CTAS FY 2018 A1, A3, A4, A6, and A7 First nations language
immersion emersion--Future Teacher Program--not funded DOJ Yurok Opioid
Affected Youth Initiative--Pending Yurok Youngest Opioid Victims
Assistance (YOVA) Project--pending
VII. Culturally Appropriate Prevention, Response, And Re-Entry
In recent years the Tribe's membership/leadership has renewed their
commitment to reinvigorating our culture. We survived a horrendous/
debilitating invasion that created many hardships heretofore unknown to
the People, some of those hardships continue or new ones arise.
However, the People have a core strength and a worldview that focuses
on our responsibility to and for ourselves, our lands, all the beings
in our world and our neighbors who also are struggling in a time of
concern for all. We do not intend to walk away from any of those
cultural responsibilities. We are stronger every year as we increase
our cultural participation and return to our responsibilities in dance/
language and stewardship.
Conclusion
Thank you for the opportunity to testify to the Committee. The GAO
report is a positive step toward gathering information and data
regarding Native American youth in involvement in the justice system
and grants to support such work. There is a great need for more
accurate data regarding tribe specific juvenile involvement. This
Committee should consider authorizing a pilot project to develop data
collection systems to track Native American juvenile justice
statistics. Further, there should be an increase into educational
grants to tribes directly as a means to prevent juvenile delinquent
behavior. Finally, if efforts through education fail, and Native
American youth find themselves in the justice system, Tribal Courts are
best suited to provide restorative justice that leads to positive
lifelong results. Federal funding to support tribal courts in PL-280
states should be increased as well as tribal court jurisdiction to
process juvenile claims involving native and non-native parents.
The Chairman. Thank you, Judge.
Ms. Rolnick.
STATEMENT OF ADDIE ROLNICK, PROFESSOR OF LAW, WILLIAM S. BOYD
SCHOOL OF LAW, UNIVERSITY OF NEVADA
Ms. Rolnick. Thank you, Chairman Hoeven, Vice Chairman
Udall, Senator Cortez Masto, for your attention to this issue,
for asking me to come here today, for ordering the report, and
for your work on TLOA II which has some very important
provisions in it. I want to thank the Pomonkey and Piscataway
people whose land we are on.
Judge Abinanti, I learn from your writing, judging and
advocacy every day. I feel lucky to sit next to you here.
I want to focus on the report and I will answer questions
about anything else if you like.
It is an important report. Two of the major findings in the
report are that Native youth involvement in the State and
Federal systems at least has declined and that there are more
than 100 Federal grants available that could be used to address
Native youth.
It might be tempting, based on that information, to
conclude that things are fine. I caution you, and I think you
all understand this, against such a conclusion. Here is why.
Starting with State systems, justice system involvement,
arrests and beyond that has declined for all youth. The
findings here are consistent with that. It is unclear exactly
why this is but I know organizations like the Juvenile
Detention Alternative Initiative has been involved with States
trying to bring down the general use of detention and
incarceration.
This is good news but there is some evidence it is not
reaching Native youth and the disparities faced by Native youth
are persisting. Even though all youth are being detained and
confined at lower rates, the disparity between Native and White
youth is getting bigger in some places.
What is in the report is consistent with what I have found
in other research, that Native youth continue to face
significant disparities at several points in the system. It has
never been worse at the point of arrest. Native youth are not
generally overrepresented at arrest. They are in a few States,
but that is not the biggest disparity.
There are a few offenses for which they tend to be
arrested, usually alcohol-related offenses more often.
Otherwise, that is not where they are overrepresented. Where we
see it is at pre-adjudication detention and post-adjudication
confinement. They continue to be overrepresented at those
stages.
That is particularly worrisome because if they are coming
in for alcohol-related and low level offenses, you might expect
they would be more likely to be diverted out of the system and
they would be more likely to not be detained or confined. In
fact, the opposite seems to be happening in State systems.
The report also makes clear that we cannot really see
anything at the national level. We have to look at the State
and even the county levels. When we look at States with large
proportional Native American populations, we see, for the most
part, the higher the percentage of the population is Native in
the State, the larger minority population is Native youth, the
worse they do.
This suggests to us that Native youth are facing some of
the same disparities at the same level as we associate with
African-American youth, but it only shows up when they are the
biggest minority in the State.
An interesting exception to this, I do not know what is
behind it, is that New Mexico has a large portion of Native
youth and they seem to do better in terms of disparities. At
all of the stages, they are one of the States where Native
youth are underrepresented at arrest and confinement.
One thing I know is that New Mexico is one of only two
States with the tribal notification law. They have a State law
requiring State officials to notify tribes when children come
into the system.
I think there is a lot to look into about how that law is
working but that is something I think all States should do.
Perhaps that is one of the reasons why they are doing a bit
better with Native youth in their State system.
I also want to highlight the issue of status offenses which
appears in the report but is not highlighted. There is some
evidence that Native Youth are really overrepresented in
arrest, detention and confinement for status offenses.
These are offenses that would not be crimes if adults
committed them, things like running away from home. Native
girls are even further overrepresented among those children.
This is a real concern, especially because Federal law says
that you are not supposed to lock kids up for status offenses,
ever.
If Native youth are being locked up pre- and post-
adjudication and placed out of the home at higher rates than
other youth, something is really wrong. I cannot say more
because I do not know why it is happening, but it is a real
issue of concern.
In the Federal system, some of this data is new to me and
it is interesting that it looks like the numbers and
proportions of Native kids in the Federal system have gone
down. I am not sure why that is and I think there are questions
to ask about it.
My greater concern is that we know very little about the
qualitative experience of Native youth in the Federal system.
We know very little about where they go and very little about
what services they have.
I understand, although it is not listed in here, that the
facilities where children are sent are contract State and local
facilities in South Dakota, Texas, Pennsylvania and New Mexico.
Some of those are secure and some are non-secure. I visited one
of those. I think there are some big questions about what is
happening to kids in that system.
The most important takeaways for me from this report are
about youth in tribal systems and data collection. With regard
to youth under tribal jurisdiction, the report underscores that
we know almost nothing.
I do know the number of Native youth under BIA tribal
jurisdiction in detention and incarceration has declined over
the past 15 to 20 years but during the same period, the number
of juvenile facilities has nearly doubled. We are or have been
continuing to build detention facilities for fewer youth.
For a long time, this was an issue of where Federal funding
was targeted and that may be changing. I hope it is.
I think many others have said this. With regard to funding,
of the 122 programs, only 27 of those are specifically for
tribes and Native youth. Tribes may be able to apply for the
others but it is not clear to me that they can apply for direct
funding. Sometimes they can only apply for pass-through funding
from the State. They are competing against entities with much
greater resources.
This report does not suggest to me there are plenty of
resources for tribes. I know there are not. I think tribal
leaders have been clear that they need flexible, independent
funding for juvenile justice programs, that grants that are
short term and insufficient to sustain an entire program are
not going to allow tribes to develop the kinds of programs we
need.
Finally, we are not going to ever have the data we need
until the research and funding is focused on Native youth
specifically. All the general efforts just miss them. They
forget to count them. They do not know how to define them. We
are totally unable to compare the numbers.
All the reform efforts, if they do not center tribes,
meaning the tribes have the first say in what happens, the
ability to direct other governments and are the primary
beneficiaries of the funding, none of this is going to change.
Thank you.
[The prepared statement of Ms. Rolnick follows:]
Prepared Statement of Addie Rolnick, Professor of Law, William S. Boyd
School of Law, University of Nevada
Good afternoon Chairman Hoeven, Vice Chairman Udall, and Members of
the Committee. Thank you for inviting me to testify today about Native
youth in the juvenile justice system. My name is Addie Rolnick. I am a
law professor at the University of Nevada, Las Vegas. For fifteen
years, I have been engaged in research, advocacy, and tribal
institution-building to improve juvenile justice for Native youth. I
thank the Committee for its attention to such an important and oft-
ignored issue and for requesting the comprehensive GAO report that we
are here to discuss today.
I will focus my remarks today on the September 2018 GAO report
entitled Native American Youth Involvement in Justice Systems and
Information on Grants to Help Address Juvenile Delinquency. I also
include here as an attachment my 2015 testimony before this Committee,
which addresses this issue more broadly and contains detailed
recommendations for legislative action.
General Recommendations
In 2015, I recommended greater tribal control over juvenile
justice, more flexible funding for tribes, more stringent data
collection and communication requirements for states and federal
agencies, and more research. I reiterate those recommendations again
today. After consideration of the GAO Report, I believe the most urgent
priorities for Congress must be to:
Fund targeted research on Native youth, particularly Native
youth under tribal jurisdiction. This research should include
mapping tribal systems, gathering data on youth outcomes, and
evaluating promising tribal juvenile justice programs.
Require better data collections and more transparency.
Specifically, states should be required to collect data on
tribal affiliation and should utilize a standard definition (or
definitions) of Native American at every stage of data
collection. The Bureau of Prisons should be required to
disclose to tribes and to the public details about where
children under federal jurisdiction are held and what kinds of
services they receive.
Change the law to make state and federal actors more
accountable to tribal governments by (1) amending the Federal
Juvenile Delinquency Act to require a waiver of tribal
jurisdiction, and (2) require states to notify a child's tribe
when that child enters the state juvenile justice system, a
requirement that is essential for all Indian country youth and
important for Native youth outside Indian country.
Increase flexible, long-term/renewable grants available to
tribes through a direct (not pass-through) funding arrangement.
Funding for non-Native organizations desiring to work with
Native youth should not decrease the funding available to
tribes for the same purpose.
I would be happy to provide the Committee upon request with
information on any other aspects of juvenile justice for Native youth.
My research in this area is also set forth in the following
publications:
Untangling the Web: Juvenile Justice in Indian Country, 19
N.Y.U. J. OF LEG. & PUB. POL. 49 (2016), provides a
comprehensive overview of Native youth under tribal, state and
federal jurisdiction and sets forth specific policy
recommendations.
Locked Up: Fear, Racism, Prison Economics, and the
Incarceration of Native Youth, 40 AM. INDIAN CULTURE & RESEARCH
J. 55 (2016), investigates some of the factors, particularly
federal funding incentives, that may contribute to over-
incarceration of Native youth under tribal jurisdiction.
Native Youth and Juvenile Injustice in South Dakota, 62 S.D.
L. REV. 705 (2017), provides a snapshot of how the overall
issues relating to juvenile justice affect tribal youth in
South Dakota.
Recentering Tribal Criminal Jurisdiction, 63 UCLA L. REV.
1638 (2016), describes why it is important and legally correct
for tribes to be the first movers and decisionmakers in the
context of criminal and juvenile justice, with state and
federal jurisdiction functioning as a fallback.
A Tangled Web of Justice: American Indian and Alaska Native
Youth in Federal, State, and Tribal Justice Systems (Campaign
for Youth Justice, July 2008) is a policy brief on Native youth
in tribal, federal, and state juvenile justice systems.
The GAO Report
The September GAO report provides an invaluable summary of
available information on Native youth in the juvenile justice system
from 2010-2016, including information on how many young people came
under the jurisdiction of each sovereign, what offenses were committed
by those young people, and what happened to them once they entered the
system. I recently reviewed much of the same data for a report on
Native girls and juvenile justice (the research was undertaken with the
National Crittenton Foundation and was part of the OJJDP's National
Girls Initiative), and my commentary draws from that report, which has
not been released. Having just finished my own summary and analysis of
available federal data, I know that gathering and analyzing this
information was not easy. The Committee and the GAO have provided an
important service to Indian country by making it available in a single
report. Bringing the data together yields several important insights,
all of which are consistent with my own review of the data, including:
The vast majority (89 percent) of Native youth under federal
jurisdiction are boys. \1\ Fewer than ten girls were arrested
and entered the federal system each year during the study
period.
---------------------------------------------------------------------------
\1\ Report, at 45.
The districts of South Dakota and Arizona sent more youth
into the federal system than any other districts. \2\
---------------------------------------------------------------------------
\2\ Report, at 22.
Native youth are significantly over-represented at the
arrest stage in the state juvenile justice systems of South
Dakota and Alaska and at the post-adjudication confinement
stage in North Dakota and South Dakota. South Dakota and Alaska
have the highest proportion of Native youth of any state (15
percent and 20 percent respectively). Native youth make up nine
percent of the youth population in North Dakota. \3\
---------------------------------------------------------------------------
\3\ Report, at 27 n. 41.
Native youth are under-represented at the arrest stage in
the juvenile justice systems of New Mexico and Oklahoma and
under-represented at the post-adjudication confinement stage in
New Mexico. This is especially significant because Native youth
constitute a relatively large share of the youth population in
New Mexico (14 percent) and Oklahoma (12 percent). \4\ These
two states are also the only states which require state and
local juvenile justice officials to notify and attempt to
involve an Indian child's tribe. \5\ While this may be
unrelated, further inquiry into the reasons for
underrepresentation, and the possible role of tribal
notification laws, is warranted.
---------------------------------------------------------------------------
\4\ Id.
\5\ NM Law and Report, OK Law.
The Report also suggests that Native involvement in the juvenile
justice system has declined, and it details a range of federal funding
opportunities that could potentially be used for Native youth. I
caution the Committee not to interpret the report as evidence that
there is no need to address juvenile justice issues for Native youth. I
explain the specific reasons for this in detail below.
1. An Overall Decline in Arrests Tells Us Little About Whether Native
Youth Are Being Treated Appropriately, Effectively, or Fairly
The report includes some good news: arrests of Native American
youth by state and federal law enforcement agencies appear to have
declined somewhat steadily over the sixyear period. This is consistent
with an overall decline in youth arrests across all racial groups,
which researchers have noted over the past decade. It is too early and
the information too incomplete to know the reason for this decline, but
if it reflects either fewer offenses committed or a turn toward
addressing young offenders through less punitive measures, that would
be a positive change. I note, however, that arrests appear to have
declined consistently during the six-year period except for a brief
uptick in 2015. The Report does not indicate why that year is an
outlier, nor can it assure us that the decline will continue.
Furthermore, as the Native organizations consulted for the Report
pointed out, it is likely that state officials are under-counting
Native youth or counting them in an inconsistent manner. \6\
---------------------------------------------------------------------------
\6\ Report, at 29.
---------------------------------------------------------------------------
A decline in arrest and referrals means that fewer Native youth are
coming into the juvenile justice system than in previous years, but I
caution the Committee not to conclude based on this report that there
is no problem and no need for solutions and financial investment. In
2013 and 2014, two federal reports concluded after substantial
inquiries that the juvenile justice systems serving Native youth were
``failing'' youth and ``retraumatizing'' them. \7\ This has never been
a problem of overall numbers. Native youth make up only 1-2 percent of
the nationwide youth population, \8\ so if relative attention is based
only on total numbers, Native youth will always be ignored. In fact,
this invisibility is part of what led to the current problem: the
federal and state juvenile justice systems were not designed for Native
youth, and Native youth fare poorly and are sometimes treated unfairly
as a result. Tribal systems, which are designed for Native youth, are
unsupported and under-studied. There is little or no communication
between jurisdictions and state and local officials are free to ignore
or marginalize Native youth and tribal communities without legal or
financial repercussion when setting juvenile justice policy.
---------------------------------------------------------------------------
\7\ Indian Law and Order Commission, A Roadmap for Making Native
America Safer 149 (2013); Attorney General's Advisory Committee on
American Indian and Alaska Native Children Exposed to Violence, Ending
Violence So Children Can Thrive 24, 59 (2014).
\8\ Report, at 27 n. 41.
---------------------------------------------------------------------------
2. The Report Underscores the Lack of Reliable Data and the Need for
Further Study, Especially of Youth in Tribal Systems
As the Report notes, the existing information is incomplete and its
dependability is difficult to assess primarily because of small overall
numbers of Native youth and because of variation in how the category of
Native American is defined across jurisdictions and agencies.
Statistics on youth of color depend either on self-identity (what
racial box a person checks on a form) or ascribed identity (how an
authority figure decides to categorize a person). Both are especially
complicated for Native youth. The U.S. Census counts American Indian
and Alaska Native youth in two ways. The first category, ``AI/AN-only''
includes only those people who self-identify as American Indian or
Alaska Native. \9\ The second category, ``AI/AN-plus'' includes AI/AN-
only people plus those who self-identify as American Indian or Alaska
Native along with any other racial categories. \10\ Including multi-
racial people doubles the number of people in the AI/AN category
nationwide (from 1 percent to 2 percent), \11\ so accurate numbers
require understanding which group forms the best baseline for the issue
in question. State and local data may not distinguish between single-
race and multi-race identifiers, making it difficult to tell who is
being counted. Moreover, self-identity measures may also include many
youth who identify as Native, but do not legally count as American
Indian and may not be affiliated with any tribe, effectively
overstating the number of youth who would be affected by a
jurisdiction-based reform and potentially skewing statistics about the
experiences of Native girls. There is evidence that, in some contexts,
people who are not tribally affiliated and who do not publicly identify
as Native American will so identify on official forms, especially when
given a multi-racial option. \12\
---------------------------------------------------------------------------
\9\ Tina Norris et al., The American Indian and Alaska Native
Population: 2010, 2010 Census Briefs (United States Census Bureau,
2012): 3-5.
\10\ Ibid.
\11\ Ibid.
\12\ D'Vera Cohn, ``American Indian and White, but not
`Multiracial,''' FactTank: News in the Numbers, Pew Research Center,
June 11, 2015, http://www.pewresearch.org/fact-tank/2015/06/11/
american-indian-andwhite-but-not-multiracial/.
---------------------------------------------------------------------------
The legal Indian category, which includes youth affected by special
tribal jurisdictional rules, does not depend on self-identity; it
depends instead on tribal affiliation. The way the Native category is
defined, including whether it relies on self-identity, official
ascription, or legal Indian status, varies across jurisdiction, agency,
and decision point. It is important to understand that we may be
counting different young people each time we repeat a statistic about
``Native youth.'' \13\
---------------------------------------------------------------------------
\13\ The authors thank Neelum Arya for insight on the issue of how
Native youth are counted in juvenile justice statistics.
---------------------------------------------------------------------------
The Report also contains very little information on Native youth
under tribal jurisdiction, a population I estimate to be at least \1/3\
of all system-involved Native youth. Many of the national datasets used
to measure risk factors, system involvement, and outcomes among youth
in the delinquency system do not gather data from tribal law
enforcements agencies, tribal courts, or tribal facilities. If they do
include tribal agencies, they may only receive data from a handful of
tribes. The Bureau of Justice Statistics plans to conduct a census of
tribal law enforcement agencies and recently finished collecting data
for an update to its survey of tribal court systems, which was last
conducted in 2002. Each will collect data from approximately 300 tribal
agencies. \14\ Without tribal data, it is also difficult to know how
well tribal systems are meeting young people's needs and which reforms
may be needed there.
---------------------------------------------------------------------------
\14\ Tribal Crime Data Collection Activities, 2017 (United States
Department of Justice Bureau of Justice Statistics, 2017).
---------------------------------------------------------------------------
There is currently no single source of information on youth who are
involved in tribal juvenile justice systems but are not held in secure
confinement, and there is scant documentation of the types of non-
detention options available in tribal justice systems. In addition to a
national picture of these young people, there is a need for in-depth
case studies of individual tribal juvenile justice systems. Such
studies will yield more detailed information about Native youth under
tribal jurisdiction, identify variation among tribes and regions, and
help identify the programs and practices that work for Native youth,
including Native girls.
3. The Report Suggests that Racial Disparities in Detention and
Confinement Persist in State Systems
According to the Report, Native youth are over-represented at the
arrest stage in the justice systems of seven states. \15\ This over-
representation was at least five percentage points higher in four
states and at least 15 percentage points higher in two states. The
states with the worst disparities (Alaska and South Dakota) are also
the states in which Native youth make up the largest share of the
population compared to other states. \16\ Three of the states in which
Native youth are over-represented (Alaska, Minnesota and Oregon) are
Public law 280 states, which means that those states have jurisdiction
over Native youth within and outside of Indian country.
---------------------------------------------------------------------------
\15\ These states are: Alaska, Minnesota, Montana, North Dakota,
Oregon, and Wyoming. Report, at 33.
\16\ Report, at 27 n. 1.
---------------------------------------------------------------------------
This over-representation is significant because, at the national
level, available data over the last 10-15 years has shown that Native
youth are arrested at largely the same rates as other youth. They are,
however, over-represented in arrests for certain offenses, generally
low-level and alcohol and drug related offenses. The report confirms
this as well: Native youth nationally are over-represented among
arrests for alcohol offenses, and the top four offenses for which
Native youth were arrested were larceny/theft, alcohol-related
offenses, assault, and status offenses.
Greater disparities emerge at the pre-adjudication detention and
post-adjudication confinement stages. Given the offenses for which
Native youth are most likely to be arrested, one might expect that they
would be under-represented among youth who are detained, placed out of
home, and confined. This is because juvenile justice expert agree that
detention and confinement should be reserved for violent and serious
offenders. Yet, the Report indicates that Native youth are over-
represented among youth in post-adjudication confinement \17\ in 16
states. \18\ This over-representation was at least 5 percentage points
higher in six states and at least 15 percentage points higher in North
Dakota and South Dakota. The Report does not focus on pre-adjudication
detention, but my own research has shown that, despite the overall
decline detention for all youth, the Native-white disparity in
detention has in some cases worsened.
---------------------------------------------------------------------------
\17\ Confinement data used in the report is based on the Census of
Juveniles in Residential Placement, but the Report authors excluded
youth who were being held pending trial or adjudication. Report, at 27
n.40.
\18\ These states are: Washington, Oregon, Utah, Nebraska,
Oklahoma, Iowa, Wisconsin, Mississippi, New Hampshire, Maine, Montana,
Wyoming, North Dakota, South Dakota, Minnesota, and Alaska. Report, at
35.
---------------------------------------------------------------------------
Of particular concern is the relationship between status offenses
and out of home placement. The Juvenile Justice and the Tribal Law and
Policy Institute issued a report in 2014 finding that Native youth are
more likely to be detained and placed out of home for status offenses
than other youth. \19\ We found that this disparity was apparent at
both the detention and confinement stages, and that it was even greater
for Native girls. This should be an area of serious concern, as federal
law prohibits locking up youth for status offenses and experts
recommend against out-of-home placement.
---------------------------------------------------------------------------
\19\ Coalition for Juvenile Justice & Tribal Law & Policy
Institute, American Indian/Alaska Native Youth & Status Offense
Disparities: A Call for Tribal Initiatives, Coordination & Federal
Funding (2015).
---------------------------------------------------------------------------
Finally, as the Report notes, Native involvement in state juvenile
justice systems was greatest in states with a higher-than-average
Native youth population. \20\ This suggests that, where Native youth
are visible, they not treated fairly by the justice system. Indeed, my
research suggests that while overall rates of youth involvement in the
justice system may be declining, the disparities faced by Native youth
are in many cases worsening.
---------------------------------------------------------------------------
\20\ Report, at 21.
---------------------------------------------------------------------------
4. The Report Reveals a Substantial Reduction in the Number of Native
Youth in the Federal System, but Does Not Provide Details About
the Kinds of Placements, Programs, and Services Available to
Youth Under Federal Jurisdiction
The Report's findings on Native youth in state and local systems
are generally consistent with my own findings. The data included for
the federal system, however, is new. Because the Bureau of Prisons and
federal law enforcement agencies do not make data publicly available,
the latest publicly accessible data for youth in the federal system was
from prior to 2011. \21\
---------------------------------------------------------------------------
\21\ William Adams, et al., Tribal Youth in the federal; System,
Final Report (Revised) (2011).
---------------------------------------------------------------------------
The data presented show a striking decline in the number and share
of Native youth under federal jurisdiction. For example, the number of
Native youth arrested by federal officials in 2016 is one third of what
it was in 2010. \22\ Native youth also appear to make up a much smaller
share of youth in the federal system at every stage than they did in
previous years. Table 5 shows the percent of youth in the federal
system who were Native American at the custody/detention, adjudication,
and post-adjudication confinement stages for 2010-2016, and at no time
did Native youth make up more than 30 percent of all youth in the
federal system. By contrast, Native youth accounted for about 40
percent of youth arrested by federal officials between 1999 and 2008.
\23\ While it is possible that the differences between the 2011 report
and the 2016 report are due to methodological or dataset variation, or
to a larger number of non-Native youth entering the federal system, the
Report suggests that it is due instead to an overall decline in Native
youth under federal jurisdiction. I am cautiously optimistic about
this, but I encourage the Committee to inquire further with the
responsible agencies and affected tribes to determine the reasons for
such a change.
---------------------------------------------------------------------------
\22\ Report, at 21.
\23\ Adams, at 39.
---------------------------------------------------------------------------
The Report does not include information about where young people
under federal jurisdiction are held and what kinds of programs and
services are available to them. The Bureau of Prisons does not directly
operate any juvenile facilities, so youth are sent to one of the state,
local, or private facilities with which BOP contracts. The Report
indicates that BOP oversees eight such facilities, but does not name
them or describe their location or characteristics. \24\ We still know
very little about the qualitative experience of Native youth under
federal jurisdiction. This is frustrating because federal agencies have
this information, but do not make it widely available.
---------------------------------------------------------------------------
\24\ Report, at 45 n. 55.
---------------------------------------------------------------------------
5. The Review of Available Grants Illustrates the Continuing Need for
Flexible, Consistent Funding for Tribal Juvenile Justice
Systems
To adequately address juvenile delinquency in a manner than reflect
tribal community priorities, cultural practices, and geographic
circumstances, tribes must have access to flexible, stable funding for
all aspects of tribal juvenile justice systems, particularly treatment
and alternatives to detention. The Report details more than 100 grant
programs that could be used for Native youth. However, of the grant
programs described in the report, very few are targeted to Native youth
and/or available to tribes as direct applicants. Many of them are
short-term grants and provide only a small amount of funding. These are
not the kind of grants that allow tribes to create and sustain
innovative programming. In addition, many of the listed programs have
not been funded since 2015. The list of potential programs is
informative, but it should not be viewed as evidence that tribes are
receiving the resources they need; they are not.
The article Native Youth & Juvenile Injustice in South Dakota
by Addie C. Rolnick has been retained in the Committee files
and can be found at http://scholars.law.unlv.edu/facpub.
The Chairman. Thank you, Ms. Rolnick.
We will now have five minutes rounds of questioning.
This is a question for all of you. The GAO report
highlighted risk factors and challenges Native youth face. It
also discusses the difficulties of examining this particular
problem in Indian County due to the lack of data and
inconsistent tracking of the Native status of youth in the
juvenile system.
For this reason, Senators McCain, Barrasso, Daines,
Murkowski and I co-sponsored the Tribal Law and Order
Reauthorization and Amendment Act of 2017, S. 1953. How do you
think this bill will help address the issues raised in the GAO
report?
We will start with you, Dr. Goodwin.
Dr. Goodwin. Thank you, Senator.
As everyone suggested, and as we found in our report, some
of our major challenges with pulling together the report had to
do with data and what kind of data was out there and available.
We reached out to DOJ officials, also talked to Native
American organizations and tribal communities to give us a
sense for why we were seeing what we were seeing. You are
correct. One of the things the tribal organizations said to us
was they were concerned that whatever we were seeing, the
numbers might be underreported because when a youth comes into
contact with a law enforcement entity, they might not be
collecting their Native American status. We are very clear
about that in our report, that there are concerns that what we
found in the data might be underreported.
The legislation you are putting forward could be helpful,
but we also have to be mindful that we are talking about youth.
Some of the information and data around the youth cannot be
made publicly available.
When we were doing this report, we had numerous
conversations with people at DOJ. It took us a while to get the
data we got because we had to assure them we would maintain the
confidentiality of that data.
As we move forward, we really do need to have a discussion
about how can we pull together the data in such a way that we
can get some of these questions answered and alleviate some of
our concerns while also maintaining the confidentiality of the
juvenile data we have.
The Chairman. But they need to track that data and provide
it, right?
Dr. Goodwin. I would say that would have been really good
for our report if we had at least had a tracking. Another issue
that came up was we were not able to track the youth across the
phases of the process, the number of different data systems or
data sources that we used in order to at least see where the
youth are at certain points in time. The way the data is set up
right now, you cannot track across.
We might not see you at arrest, adjudication and
confinement if we are only looking at one system. That is an
issue. Your proposed legislation would start to alleviate some
of those concerns.
The Chairman. Ms. Harp.
Ms. Harp. I think when we talk about the data and
limitations with it, there certainly are problems. That is
clear on its face. Part of it, though, is these collections of
data are voluntary; there is no requirement that the tribe
collect and report them.
We have the complexity back and forth of the jurisdictional
issues. That is a challenge for us. There are infrastructure
problems, as we have discussed, data infrastructure problems.
I think certainly the department would be willing to sit
down, look at the Act and figure out how it might work, make
sure we honor the sovereignty of the tribes but at the same
time, balance unintended consequences or against the advances
we could make with a good data collection system.
The Chairman. Deputy Assistant Secretary Tahsuda.
Mr. Tahsuda. Thank you, Mr. Chairman.
The question of the lack of data is a little unique for us,
I guess I would say, because we deal specifically with Indian
kids, primarily on the reservation or in Indian communities. If
it is data about whether they are Indian or not, we have pretty
good data on that because that is mostly everyone we deal with.
What I think we actually do a pretty good job on is the
data we think is important for us in dealing with the
juveniles, particularly focused on recidivism. When they come
into our system, when they come through the tribal courts, we
track them to the tribe. When they are placed in the facility,
we try to keep that child connected to their tribal community
as well as their family.
The success that we have in reducing recidivism is because
of that track, we are able to not only connect them culturally,
but also to provide education. When they leave the facility,
they are connected with an education institution they can
continue to follow through with.
However, the challenge for the entire system is that we do
not actually have that many juveniles in our system. The vast
majority of Indian juveniles are in either State, local or
Federal facilities. We do not have the connection with them
that would be helpful, I think.
I find it really interesting and instructive with New
Mexico having their system and, at least anecdotally, maybe
that is affecting positively their ability to reduce the number
of juveniles in the system.
Maybe if we had better communication with other systems,
like the State or Federal systems, with these children, we
could help out in making sure they are connected while they are
in the facility and renew their family and community
connections once they leave. I think that would be a big
positive impact for them.
The Chairman. Judge?
Ms. Abinanti. That is true except in Public Law 280 States
where our children are incarcerated by the State and the
figures do not go up. As you are aware, California has the
largest Native American population and is a 280 State.
In addition, I think as we start to gather that data, you
will see more and more youth incarcerated in adult prisons in
the age group of 18 to 23 because there is a common look away
from the kids until they are old enough to lock them up because
we do not have enough for juvenile detention. That is across
the Country.
You are going to see an upswing in that age group of people
being incarcerated. We are seeing it. I imagine that is going
to spread out. Where that goes, I do not know but it is
happening.
The Chairman. Ms. Rolnick?
Ms. Rolnick. Thank you.
I really appreciate the inclusion of any juvenile
provisions at all in the Tribal Law and Order Reauthorization
and Amendment Act. It is hard to get attention to juvenile
issues, so I appreciate the Committee's attention there.
There are two provisions I think are particularly helpful.
I also have a suggestion for additional pieces.
One is the inclusion of agencies that work with Native
youth on the Coordinating Council for Juvenile Delinquency
Prevention. That council having the inclusion of officials from
Federal agencies that work with tribes is going to be a lot
more helpful, I think, in including Native youth.
I do not know why I did not know this before but I just
recently learned that the Fact JJ, the council in juvenile
justice, is the organization of State advisory groups that
advises on juvenile justice and you have to be on a State
advisory group in order to be on that council. That also should
include tribal leaders.
There is no way that tribal voices are going to be heard at
the juvenile justice level if they cannot be in the room with
the State advisory group leaders, being on that council.
The other provision I think is really important is the
amendment to the Federal Juvenile Delinquency Act that would
basically require Federal prosecutors to get a waiver of tribal
jurisdiction, as they have to do with States, before they
proceed against Native youth.
It does not mean you cannot take Native youth to Federal
court, but it requires some coordination with the tribe so it
allows the tribe to direct how the resources are being
distributed. It avoids a double prosecution in which the tribe
and the Federal Government go after the same kid maybe with
different purposes.
I think it is equally important or maybe more important
given the numbers the States have to do that too. The States
need to minimally collect the data about whether and what tribe
a child is from. They should also be required to notify the
tribe. As Judge Abinanti said, that is essential for tribes in
PL-280 States.
All of their children, even the children on the
reservation, are in the State system. If the State does not
have to talk to them at all about what is going on with those
children, then the tribes will not be able to do anything.
The Chairman. Thank you.
Vice Chairman Udall.
Senator Udall. Thank you, Mr. Chairman.
Professor Rolnick, when we spoke at this Committee's last
juvenile justice hearing, we discussed the Santa Clara Running
Club, a running program that involves people of all ages at
Santa Clara Pueblo in New Mexico. The program promotes health,
community, culture and, as you pointed out, serves as sort of a
preventive juvenile justice initiative for the Pueblo.
Can you talk more about the importance of protective and
preventive programs such as this running club? Can you give us
examples of other preventive programs that exist throughout
Indian Country?
Ms. Rolnick. Thank you.
I wish I could give you examples. What I have found is that
at this point, until I take the time and raise the money to
travel out regularly to all of the different reservations, I am
not going to be able to give anymore examples. There is no data
I can sit there and collect on these programs so it is what I
go out and see.
However, I really appreciate your words earlier about the
importance of preventive programs but you said programs that
are outside the rubric of juvenile justice. I think that is a
really important point.
The more that I visit tribes, I think there are some youth
committing violent crimes, but I think I have yet to see any on
a visit. I have been to jails and the kids there are usually
there for drinking. There was no one to pick them up and no
where to put them, so they are still in a jail.
It seems like if these kids are not getting in a lot of
trouble, I think a lot of tribes, I do not want to speak for
the tribes, but they could have an entire system that was not
even a juvenile justice system. It would be all of these other
programs.
There would be running clubs and it would be housing. If
they could handle the problems they were having with their kids
not just any kind of incarceration, but maybe any kind of
juvenile justice system at all. We are not seeing kids who are
getting in a lot of trouble. We are seeing kids who could be
helped in other ways.
It is unfortunate that the only way we know how to deal
with children is once they start getting in trouble, pulling
them in under a court. I think it is really important that you
highlighted that program and noted that those kinds of programs
are probably more important.
Senator Udall. One of the points I was making here is by
using cultural knowledge and traditional practices, many Native
youth have been able to successfully reintegrate back into
tribal communities and heal their trauma and what they have
been through.
Have you seen that, Judge, in your experience?
Ms. Abinanti. I think that is true. I think now there is an
increasing movement. There is a new book out by Catia Riesling
Balding who is from the north in California talking about the
return of coming of age ceremonies for girls. These are not for
the faint at heart, let me just say. It involves a lot of rigor
to prepare for and have these ceremonies.
I know other communities are also practicing them more. As
time goes on, I think they will contribute to the benefit. We
are looking at those kinds of programs. We are looking at
working with the schools to release our children to go to
dance, to participate in dance, making sure the dance leaders
use part of the daytime to ensure the children are doing their
homework. That becomes part of their responsibility, the dance
leaders, to do that. That has had a very positive effect.
It increases, as has the language classes, not to mention
that I now have a seventh grader tutoring me in Yurok which is
really good. She is sort of mean, other than that. She has
spent a little too much time around her grandmother, I think. I
am not quite sure but she does make me toe the line.
Senator Udall. Thank you.
Several of the witnesses, Judge, I think you were included,
mentioned our program in New Mexico with the tribal
notification system which requires the State to notify the
tribe when one of its members enters the juvenile justice
system beyond the tribal system.
Ms. Harp, has the department considered requiring States to
report tribal-specific data when dealing with tribal youth in
State courts as part of the requirements for any justice-
related grants that the State may receive from the Department
of Justice?
Ms. Harp. Not that I am aware of. I am not certain what our
authority would be to make that happen. I think the tribal
liaison certainly in the EOUSA's offices, the US Attorney's
offices, are great at building relationships with tribes and
communicating with them.
I think our States, those who pass through significant
amounts of Title II money, do a great job of communicating with
their States but I do not know they have any systems in place
to notify every single time a child comes into the system.
It is certainly something to look at because there is that
question. New Mexico is doing well. I think Oklahoma is also
doing well with keeping their kids out of pre-trial detention,
their Native youth out of pre-trial detention. I think it bears
looking at.
Senator Udall. As Ms. Goodwin mentioned, the data shows we
are moving in the right direction but unless you have the full
data picture and see what is going on within the tribe and off-
reservation, only then do you really know what is happening.
With that, Mr. Chairman, I yield back.
The Chairman. Senator Heitkamp.
Senator Heitkamp. Thank you, Mr. Chairman.
The level of frustration we all have about the lack of
statistics and data is overwhelming. We do not know how many
missing and murdered indigenous women there are. GAO was asked
to report on human trafficking in Native American Country. They
came back and told us they cannot tell us. Now, you are telling
us you cannot tell us how many kids are in detention and are
not getting services in detention.
This is not a new problem. When I was attorney general in
the 1990s, I used to track Native American children
victimization. Ms. Harp, can you tell me what the relative
comparative rates of victimization of children because of abuse
and neglect is for Native American kids versus a White kid in
America?
Ms. Harp. No, Senator, I cannot right now but I will get
that information for you.
Senator Heitkamp. You used to track it. I can tell you
this. At the time when I was looking at statistics, it would be
two to three times higher. The most abused and neglected kids
in America are Native American kids and we expect different
outcomes.
I am not here so much to derail the work that is being
done. I understand the challenges but I am always amazed by the
lack of urgency. Deputy Secretary, you talked about there are
16 school resource officers. How many tribal schools do you
have?
Mr. Tahsuda. We have I believe 183 schools in our system.
We directly operate I believe 53 of those.
Senator Heitkamp. You have 16 tribal resource officers?
Mr. Tahsuda. Yes.
Senator Heitkamp. Can you tell me how far away your schools
would be from any first responder in any given day if there was
a school shooting at a tribal school?
Mr. Tahsuda. That would very much depend on the school's
location and the State.
Senator Heitkamp. I can tell you in North Dakota, it is a
ways away.
Mr. Tahsuda. Yes.
Senator Heitkamp. We have been fighting to get two resource
officers and an MOU signed. It just becomes virtually
impossible many times to get services.
The point I want to make is that there needs to be a much
more aggressive attitude about trying to figure out what is
going on with Native kids. I hope the Commission will spur some
of that discussion. I hope we will be able to figure out what
works and what would not work.
Incarcerating kids, if they are Native, for drinking and
not if they are White does not seem very fair. Was that what
you are telling me? If you look at statistics in State and
local systems, is that probably what you would see?
Ms. Rolnick. The only thing out there to qualify that is I
am sure there is another reason on paper besides that they are
drinking that they are incarcerated but, yes, I think that is
what is happening.
Senator Heitkamp. Judge, if you could offer some words of
advice, these are the three things we ought to be focused on in
order to advance the opportunities for children in Native
American Country, what three things would you tell us?
Ms. Abinanti. To the last point, we refer to those crimes
as felony stupid which get you locked up.
To the three points, I would say youth wellness courts and
truancy courts. When I say courts, I mean in the sense that I
operate them, not in the sense of, in California, if you are
truant, you can lock up the child's parents, a very useful
technique, I am sure.
The third thing would be to offer the programming that
allows children to go to dance and to have running clubs. We
were trying to raise money last week to figure out how we could
start a ten-person team to prepare for the Indigenous Olympics
in 2020. We could not figure out how to do it, even though two
of my staff said, we will coach.
Those kinds of things are the three I would say.
Senator Heitkamp. Thank you.
Thank you, Mr. Chairman.
The Chairman. Senator Cortez Masto.
Senator Cortez Masto. Thank you. Thank you all for being
here.
I just have to echo Senator Heitkamp's words. I see the
frustration as well and I felt it when I was attorney general
of the State of Nevada. That is one of the reasons I wanted to
be here.
Professor Rolnick, we had a conversation earlier. I think
all of what we are trying to achieve here starts with accurate
collection of the data. The challenge we have is collecting
that data.
Can you talk a little bit about the challenges you have in
collecting data and getting accurate information, if you don't
mind?
Ms. Rolnick. Yes. Some of this is in the report but I will
just say I have encountered it as well.
Across the Country, Native youth and Native people are 1 to
2 percent of the population. They are 1 percent if you just
count people who identify as Native only and 2 percent if you
count people who identify as Native plus another race. The base
population you are dealing with doubles depending on kind of
how you count it.
The definition sometimes is based on self identity, what
does the kid say? Sometimes it is going to be based on someone
who picks them up and puts them in whatever category it is.
Sometimes it might be based on actually trying to find out
whether they qualify as an Indian kid under the Federal law. At
every stage, you are counting different sets of youth.
One of the things I want to do is compare disparity rates
but at the level of the Federal data that is collected, we do
get some information from tribes when it comes to arrest data
and none when it comes to confinement data. The confinement
data comes from a database where no tribes report.
We are using entirely different populations. Since the
overall population is so small, I try to rely on what is fair
but statistically, probably none of this means anything because
we are comparing apples to oranges at every stage.
States are not even doing what I think is the basic thing
which is they do not have a line to write tribal affiliation,
even if they did nothing more than that. They are not doing
that as far as I know. Only two of them are.
Statistically there is such a small population that
nationally they are often sort of left out as insignificant. If
you look at national level data and larger efforts, very few
efforts even count what is going on with Native kids because
they are such a small population.
It is usually more helpful to look at States or counties
with a lot of Native youth because then they will register
higher. That is where you see the disparities. That is why I am
concerned overall but they are sort of statistically and, kind
of on a policy level, invisible. Because of that, the
collectors of data haven't bothered to even standardize the
definitions.
It is almost impossible to collect this data.
The one thing I want to say is I feel funny. I am an
academic and I am supposed to collect data, especially around
criminal juvenile justice. It is what I am supposed to show,
but I am skeptical of it, in a way, and also know, because I
have worked with tribes for a long time, that what is showing
up in the data is the same thing tribes have been saying for a
long time.
We did not listen to tribal leaders when they said this. We
keep trying to collect data to prove it and the data is no
good. Then we say we cannot prove it. We could have been
already making some of these changes.
We should collect more and better data but we should also
listen to what the tribes are saying, ask them what they need
and do that and not wait for the data to be collected.
Senator Cortez Masto. Thank you. That is why I bring this
up because I was not here in 2015. I am assuming this is a
conversation you had in 2015 when you were all here.
Collecting the data, and also understanding where to go to
collect it, really the challenge we have is you have the
Federal system; the States, depending on the arrangements made
or whether the Public Law 280 is applicable; and then you have
tribes, right, the tribal jurisdiction?
It does not seem like it is rocket science that we know
they are there, bridging the gap and figuring out how we get
grant funding or funding pilot projects to start collecting the
data and then connecting all of that.
Judge Abinanti, thank you so much for being here. You are
in one of those States, California, a PL 280 State. I suspect
your challenge is because State law has primary jurisdiction
over any type of criminal activity. It is the district
attorneys that are going to be prosecuting, is that right?
Ms. Abinanti. Correct.
Senator Cortez Masto. Each district attorney is not going
to define and/or collect the information the same across the
State of California, is that correct?
Ms. Abinanti. Also correct.
Senator Cortez Masto. You have a lot of counties there and
many district attorneys. I see the problem and I think we all
do but I think it is time now to stop talking about it and put
systems in place where we can start accurately collecting this
data.
For purposes of BIA as well as the Office of Juvenile
Justice and Delinquency, you know the issues. How do we address
this? How do we make this change? How do we connect it? How do
we bring everyone together to start collecting this
information? What should we be doing at the Federal level? Let
me start with you, Mr. Tahsuda.
Mr. Tahsuda. Thank you, Senator.
Again, when you talk about outside of our system, probably
the biggest help for us and more than us, for the tribes, would
be some type of notification, that communication about where
their kids are and what system they are in. I assume that would
be extremely helpful to them. If the tribes have the
information and we have the information, we can connect the
dots.
There is still the question of adequate services that could
be provided to a child. We do what we can with the resources we
have. We provide an education for them and some counseling
services. We are working to increase partnerships with HHS and
the Department of Education about getting more of those
programs for the kids we have.
Again, that does not help the kids who are in the State
system. At the very least, I guess if we could help make the
connection with the tribe and the community, they can also at
least assist in trying to keep the connection with the child,
with the community, with the culture, and so forth.
I think almost anyone would agree you would have a better
outcome for the child if they can stay connected to their
community and their culture.
Senator Cortez Masto. I think we all agree with that.
I know I am running out of time. Judge, did you have
another comment you wanted to make?
Ms. Abinanti. I was going to say one way to do it is to
incentivize the counting so that part of what is happening is
that the children are in a system and not getting specialized
help. If you gave that system an incentive to count them, that
might help, if I have 40 percent of the foster kids in one of
the counties where a reservation is, are Native and were 9
percent of the population.
Senator Cortez Masto. Right. Thank you.
I know I went over my time. Thank you so much for the
conversation today.
The Chairman. Senator Smith.
STATEMENT OF HON. TINA SMITH,
U.S. SENATOR FROM MINNESOTA
Senator Smith. Thank you very much, Chairman Hoeven.
I would like to keep on what my colleague was just asking
about. This is open to all of you. What are some other ways we
could provide incentives like Judge Abinanti discussed, other
ways we could provide better incentives for data collection or
other ways we could make it easier to gather the data?
Ms. Rolnick. This is not exactly an incentive but I think
there was a comment earlier about whether or not the Federal
agencies have the authority to make States gather the data. The
way to fix that is not an incentive but a hammer.
The Juvenile Justice and Delinquency Prevention Act is
where States get a lot of their money. All but one State gets
money for juvenile justice from that. It is possible to add
requirements, requirements of notification, or requirements of
data collection.
The States have resisted that and it has been difficult to
get tribal provisions in that bill but that is definitely
possible to do. There are a lot of other things in that bill
that funding is contingent on. There is no reason that tribal
data collection and notification cannot be another one.
Senator Smith. Thank you.
Does anyone else have a comment on that? Ms. Harp?
Ms. Harp. Actually, JJDPA, the tribes are not covered by
the JJDPA. They are not required to meet the core requirements
of JJDPA in order to get any of the Title II pass through that
States provide.
The law says they are only required to attempt to comply
with core requirements. That is the extent of it. States do not
go out into Indian facilities and do any monitoring because
again, the States do not have the authority to do that because
the tribes do not have to comply. They only have to try to do
that.
As you are probably aware, most of the States only get a
matter of hundreds of dollars of the pass through because it is
based on the percentage of Native you in the State. That is
part of the problem.
The funding for Title II continues to dwindle. I do not
know there is going to be a lot of incentive there unless we
experience some increase in funding for Title II.
I think the idea of using a hammer, when we talk about
hammers, there is always a balancing point when it comes to
using them because JJDPA has so many requirements, the SAG
membership, the 28 certifications, the difficulty of becoming
eligible in the first place.
Senator Smith. Sometimes we make data collection so
difficult that it makes it difficult especially for small
organizations. Is that a problem or not?
Ms. Harp. It absolutely is, specifically with Title II. We
are trying to ease some of that but the idea of the hammer, I
think we can certainly talk about it and find ways to do it or
find ways to consider it, but a hammer without funding with
JJDPA is really risky because if the States back out of it
altogether because it is just not worth it, they don't get very
much money. The dollar amount is $400,000.
Ms. Smith. I just read this on another issue. I get what
you are saying.
Did you want to add something?
Ms. Rolnick. Just to clarify, tribes are not eligible. I
think they would like to be eligible for direct funding and not
pass-through funding. They are not covered but they also are
not eligible. They have been left out for the most part of that
law and not because they wanted to be.
What I am thinking is just add a line, add a blank for
tribal affiliation, ask that question. That I don't think is an
onerous data question requirement. If tribes are under States
when it comes to getting that Federal money, then the States
are supposedly responsible for those kids, I am not actually
talking about reporting on kids who are in tribal or Federal
facilities. These are kids in the State system, so the question
is are you keeping separate data for the kids coming in under
your jurisdiction to figure out whether they are tribal kids or
not?
It does not seem like it is honest. It seems it is
consistent with the fact that tribes are not eligible to get
that money directly and the State is therefore responsible for
the tribal kids in the system. I just wanted to clarify. I
think that is a difficult requirement.
Senator Smith. Thank you very much.
I am about out of time but Judge Abinanti, I am very
interested in what you were talking about with Senator Udall
and also with Senator Heitkamp about the basic concept of
getting upstream of the juvenile justice system or making the
juvenile justice system work better and the shortcomings. When
kids have so many challenges, they get into the juvenile
justice system and then they are in a terrible bind.
I was really interested in what was included in your
testimony around how your truancy courts work. I would love it
if you could just talk a bit more about that.
Ms. Abinanti. The truancy court I referenced is basically
in a dream state at this point. I have talked to both DAs in
Humboldt and Belmont Counties and they really support the
concept of doing a joint court because of public schools.
We would sit, as we do in dependency now, as joint judges
in those courts because I believe that we need wrap around
services. We need to help the parents get to their place where
they feel comfortable to advocate for their children instead of
saying oh, they are treating you badly, you can stay at home,
which is the default position.
They need to get past the issues of the boarding schools
and those things, and the reasons they did not send their kids
to school and also learn how to advocate. It is really hard
when you have parents who cannot read and write.
We are starting to offer more GED classes to parents and
having tutoring programs in their homes so they don't have to
go and feel embarrassed for those kinds of things. I think that
is important.
I think the community infrastructure we had prior to these
times does not support what is needed in these times. We have
to look at the infrastructure and say mothers, yes, it is good
to learn how to gather acorns because we like acorns and still
use them, but now you have to do this too.
You never knew about that but now we are going to help you
learn about that. We will go with you a few times until you can
figure out how to do this and how to talk to these people who
are strangers to you. You can do this and your children need
you to do it.
Senator Smith. Thank you very much.
Thank you, Mr. Chairman.
The Chairman. Dr. Goodwin and Ms. Harp, I have a question
for you.
As I mentioned, the GAO reviewed the Federal resources
available to help Indian tribes address juvenile delinquency.
It highlighted that nearly $1.2 billion Federal were available
as grants from the Department of Justice and the Department of
Health and Human Services for Indian tribes and tribal
organizations to combat juvenile delinquency; $1.2 billion was
available.
However, only $207 million was awarded to Indian tribes and
tribal organizations. Can you tell me why?
Dr. Goodwin. I will start and I will let Ms. Harp finish.
One of the things we found with this report, as you stated,
$1.2 billion was made available and only $207 million was
actually awarded to tribal organizations. What is interesting
about that is if you look at that, of the 122 programs, 27 of
those were specific to Native American organizations and tribal
governments and 95 of them would have included all of them.
Of those 27 specific grant programs, that was $250 million.
Of the 95 grant programs, we are looking at $944 million. I
really want to focus on that $944 million that is not
specifically targeted for Native American organizations.
The tribal governments and Native American organizations
were only awarded $14 million of that money. One of the things
we did when we looked at this, we pulled together a sample of
the declination letters to get a sense for why the tribes might
not have been awarded some of these funds.
Some of the things we saw were the application, some of the
information was inconsistent and some information did not meet
the criteria. We learned that in our conversations. Then we
spoke to some of the tribal governments and organizations to
ask them what would be helpful for you when you are filling out
these forms.
One of the things they talked about is being able to
contact the officials to ask simple questions about the types
of information they needed. They also talked to us about the
short application deadlines for some of them made it really
difficult to pull together the information and also pulling
together the required data was also difficult depending upon
how well sourced they were.
Another thing we heard from the DOJ officials in particular
was that some of the better sourced tribal governments and
Native American organizations did do better when they were
applying for grants.
Those are some of the thing we heard. I am sure Ms. Harp
has more detailed information.
The Chairman. Of the $1.2 billion, how much of that is
tribal specific?
Dr. Goodwin. Of the $1.2 billion, $250.2 million.
The Chairman. That is $250.2 million?
Dr. Goodwin. Yes.
The Chairman. Tribal specific?
Dr. Goodwin. Tribal specific.
The Chairman. So the amount awarded is still $50 million
under the tribal specific, not to mention tribal eligible?
Dr. Goodwin. Yes.
The Chairman. Ms. Harp, can you comment on that?
Ms. Harp. It is a problem having tribes apply for this
money as well as getting them successfully to apply for the
money, getting the money awarded. Looking at the reasons why
their grant applications are not succeeding is important. We
need to do that.
We have held some accessing grants to strengthen tribal
justice system capacity grant writing workshops around the
Country, one in South Carolina and one in Alaska. That is just
two and they were well attended. The tribes were there and that
was great but it is not enough. We are going to have to do a
good deal more to help the tribes apply effectively for the
money. We realize that.
At some point, getting them incentivized or getting them to
want to go through the struggle of trying to apply for and
competing for grants, I think either it is because they are
afraid they are not going to get them and don't want to put the
time into it because it is so time consuming. I am not sure but
we need to get them more invested in wanting to apply for
grants.
This idea that they want someone to talk to while they are
there or while they are doing it and they need a longer time to
get things turned around, those might be adjustments we can
make. There might be ways we can help with that.
The Chairman. It would seem to me, you tell me what you
think, both in terms of tracking this data and having DOJ
involved in tracking this data, making sure we know what is
going on so we can better address the problems and then having
some kind of outreach to make sure we help tribes utilize these
dollars to attack the problems seem like very productive uses
of your time and efforts in your role and something you should
focus on.
We are going to want to hear about the progress you are
able to make in that regard.
Dr. Goodwin. Senator Hoeven, one of the things I want to
put on the table is the grants we looked at were competitive
grants because we wanted to examine how accessible they were to
the tribal governments and Native American organizations.
As you know, we have ongoing work to delve further into the
whole conversation around grants and how accessible they are.
We are going to expand our look from competitive to all of the
grants that might be available to help issues around juvenile
justice and delinquency.
The Chairman. I think that is really good. That may be very
helpful.
Ms. Harp.
Ms. Harp. I just wanted to point out part of the problem
also is the larger tribes apply for grants, get the money and
continue to improve their systems, but it is actually some of
the smaller tribes that are in greater need for that money.
They do not have the infrastructure, the ability or the
capacity to apply successfully for those grants. That is a
group we really need to focus on.
The Chairman. We will look forward to your ideas to
accomplish that and want to track the progress you make doing
that. I am sure you will be invited back in that regard.
Did anyone else want to offer any thoughts on that, any of
the other witnesses?
[No audible response.]
The Chairman. Vice Chairman Udall.
Senator Udall. Mr. Tahsuda, your thoughts on this. It seems
to me your agents specifically do what he was talking about in
the discussion between the two witnesses here. The Department
of the Interior, specifically the agency you are working with,
is supposed to have this fiduciary responsibility, trust
responsibility doing the training, making sure that HHS and DOJ
work with the tribes and work through the grant process to
ensure that eligible tribes and tribal organizations can access
grants fairly.
What have you done on this? I am going to ask are you aware
what his part of the operation is after he answers and Ms.
Harp, what they have been doing specifically to help with this?
This is a huge problem.
Chairman Hoeven brought this out. Apparently, only 1
percent of the DOJ grants that did not mention tribes is the
number of how much tribes are getting. There is a real lack of
fairness here.
Mr. Tahsuda. Thank you, all good points and good question,
Vice Chairman.
For us specifically, we do not have a lot of grants focused
on this. We have base funding. Of course the tribes are
eligible to access that funding through self governance or self
determination contracts. That is our primary mechanism to
support the tribes.
We either provide the direct service ourselves or the
tribes can contract to provide that for them.
Senator Udall. Do you help with the grant writing? That has
been one of the big problems, the lack of resources to hire
grant writing. It sounds like you have the resources to help
them hire grant writers, especially these smaller tribes she is
talking about.
Mr. Tahsuda. I guess I would say we, of course, struggle
mightily with the resources we have for the breadth of programs
we offer. I think we could certainly be helpful probably to the
department in that we have long experience in working with the
tribes.
I would point to self governance and self determination as
an example where we are actually required by the law to assist
the tribe in working through any impediments to it successfully
submitting a contract, getting a contract awarded, or an annual
funding agreement in place.
We are required by that and have been required for years,
so we have good experience in that. I think we would be happy
if the Department of Justice wanted to ask us to help them work
with the tribes on that. It would certainly be far more helpful
if they could assist us with the resources, if it takes
additional resources to do that.
If it did not take any additional resources on our part, we
would be happy to do that. Anything we can do that would assist
the tribes in this endeavor, obviously we would love to do
that.
Senator Udall. I would like to see you in an affirmative
relationship rather than asking them, you assisting them and
working with HHS and the Department of Justice to get this
done.
Dr. Goodwin, from our interviews looking at this, with my
staff looking at this as the specific causes, you have the one
I mentioned, lack of resources to hire grant writers,
difficulty navigating Federal grant databases, unclear
eligibility, and unclear descriptions of eligibility activities
for tribes interested in using funding for culturally-
appropriate activities.
There is a real gap here, is there not, and huge potential
if these agencies all worked with each other to get resources
into this juvenile justice area. Is that correct?
Dr. Goodwin. There is, Senator. I have one thing I want to
say about the Department of the Interior and BIA.
When we were pulling together our list of grants for
review, we went to grants.gov and did a search on juvenile and
delinquency programs. We came up with over 1,000 of them. We
were focusing just on the grants that were competitive.
BIA, actually we did not look at any grants from BIA
because when we spoke with them, they told us they did not
really have any competitive grants as related to juvenile
justice or addressing issues around delinquency. They actually
do not show up in our list of grants.
The two agencies we focused on for this report are DOJ and
HHS. Those were the two agencies that had the highest numbers
of grants. Again, we were doing this for competitive grants.
For the next review we will be doing for you, we are going to
be pulling in all of the grants, the competitive and non-
competitive grants.
You are correct, probably we could all benefit from the
agency sitting down and having a conversation about how to make
this process a little smoother for the tribal governments and
the organizations.
Senator Udall. Yes. Ms. Harp, please go ahead and answer.
Ms. Harp. Thank you.
I just wanted to remind everyone, and it came to my mind as
you were talking, the Coordinating Council on Juvenile Justice
exists just to solve these kinds of problems or to bring
Federal agencies together must for this kind of conversation.
It has not met in a while. It is supposed to meet
quarterly. Now that I am here and we are doing it, our first
meeting will be in December. It will have all the Cabinet
agencies required by the statute. We will certainly invite
Interior. This will be the topic of discussion for our first
Coordinating Council meeting.
Senator Udall. Thank you.
I would focus on what you talked about, the smaller tribes
that are having the biggest problem. How do you deal with that
issue because I think if you looked at the juvenile issues
across the board, you are probably going to see the ones that
get the fewest resources have the biggest problems, wouldn't
you guess?
Ms. Harp. Yes, sir. It is the smallest tribes that probably
have the greatest need. They are the ones with the least
ability to access the money, yes.
Senator Udall. Thank you, Chairman Hoeven.
The Chairman. Senator Cortez Masto.
Senator Cortez Masto. Thank you. Let me follow up on the
conversation because I really appreciate, Ms. Goodwin, the
discussion about the comprehensive grant review you are
undertaking. When can we expect to see that?
Dr. Goodwin. That work is just beginning. As you know, this
was a massive undertaking for this particular engagement
because we needed to identify where these grants were. Now that
we know where they are, we have started moving forward on that
next one. I will circle back with the scope.
Senator Cortez Masto. You are still looking at it?
Dr. Goodwin. We are still looking at it.
Senator Cortez Masto. Here is what I am interested in
because I do not know if any of you have ever applied for a
Federal grant. I have. You need a four year degree in grant
writing just to be able to do so. It is a challenge.
What I am interested in is streamlining and making it a
little bit easier for folks that have to apply for it, but I
also know one of the challenges is the match, sometimes there
is a match that the tribes just cannot come up with, a dollar
match.
There are the burdens sometimes of the hoops that you have
to jump through on a regular basis just to keep $10,000 or
$20,000 of a grant that is out there. I am really interested in
how we, at the Federal level, can help streamline some of these
and get the money we intend out there to help those tribes or
organizations it is intended for and not make it a hindrance or
barrier for them to get access to those dollars.
Dr. Goodwin. Okay.
Senator Cortez Masto. I am all about oversight,
accountability, tracking it, and making sure there is no fraud.
I think we can do that without making it so difficult to apply.
Here is the other thing I am interested in. I am glad you
mentioned the Coordinating Council because I think this is a
great opportunity. Most States, particularly the State of
Nevada, even in my office as AG and now as a United States
Senator, I have a team that focuses just on grant writing,
literally to provide assistance to organizations, whether State
agencies or individuals, that need help in applying for these
grants.
I do not know if there is a way at the Federal level we can
put together some sort of program that just provides
assistance. Obviously, we do not want to provide it in a way
that gives them a leg up if they are competitive grants but
there has to be a way to provide some sort of technical
assistance or some sort of assistance.
I do not know what that would look like, so I am interested
to see what the Coordinating Council comes up with. If we
streamline the grants and make it much easier, we may not have
to worry about that.
I am really interested in your report. I appreciate the
conversation today. Thank you.
The Chairman. Vice Chairman Udall.
Senator Udall. Ms. Goodwin, the GAO told my staff last week
that the lack of comprehensive data sources was a problem
throughout your investigation. Specifically, you mentioned the
paper files are being used to track critical information
regarding Native youth in BIA-operated detention systems.
Can you please explain the data situation at BIA-operated
facilities and are they actually using paper to track
individuals incarcerated at BIA facilities?
Dr. Goodwin. The team went over to BIA to look at
information as related to these facilities. Yes, the team had
to look through the paper files. That, of course, can be
problematic because you have people filling out forms, forms
could be misplaced, or there is no central location for them.
That was an issue for us when pulling together our data.
I am sure Mr. Tahsuda has even more insight into what could
be done to help alleviate that process, but for us, as the
agency going in to look at this information, it was challenging
because we had to go through paper files.
Senator Udall. Mr. Tahsuda, the lack of comprehensive,
easily accessible data on Native youth in the Federal justice
system is, frankly, appalling to me. To be frank, this data
issue is not limited to the BIA's handling of juvenile records;
it has come up many, many times before.
What is the department doing to address widespread data
deficiencies that impede planning, investigations, research and
general fulfillment of its trust responsibilities?
Mr. Tahsuda. I am sorry, was that directed to me?
Senator Udall. Yes.
Mr. Tahsuda. As with a lot of our systems, it has taken us
some time to get into the modern age. We do now have a
detention database in-house. I will have to get back to you
about that particular information. I assume we are in some
transition period in which we are taking paper records and
getting them into the database.
Again, I guess I would say I do not know that it is an
acute problem for us in that we do not actually have that many
juveniles in our system. In fact, we have much greater capacity
in our juvenile detention facilities than we actually house
juveniles.
Our daily average population is only 20 percent of our
total bed population in our system juvenile facilities. I think
we are getting everyone into this database but I think the
information is there.
Senator Udall. Dr. Goodwin.
Dr. Goodwin. I just wanted to follow up on that point.
Another thing we did was we tried to look at these
detention facilities as related to the tribal justice system.
We looked at three detention centers in Indian Country, the
Northern Cheyenne, Standing Rock and Ute Mountain Ute.
The Northern Cheyenne facility saw an increase in their
admissions from 2012 to 2016 where it went from 14 to 204. We
did ask BIA why that was happening. They told us some of the
surrounding tribes were sending their youth to that particular
facility.
As relates to Standing Rock, that facility just opened in
May 2016 but in that year, they had 131 admissions to their
facility. For the Ute Mountain Ute facility, that fluctuated
but we actually saw a decline from 89 in 2014 to 53 in 2016.
We were able to get some information related to the tribal
systems but not as much as we would have liked, of course.
Senator Udall. Thank you.
The Chairman. Senator Cortez Masto, any other questions?
Senator Cortez Masto. No.
The Chairman. If there are no other questions, the hearing
record will be open for two weeks.
I want to thank all of our witnesses for being here today.
We appreciate it very much.
With that, we are adjourned.
[Whereupon, at 4:25 p.m., the Committee was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. Steve Daines to
Gretta L. Goodwin
Now, the GAO report we're focusing on today reflects some troubling
realities for Montana. As the report details, in most states, the
percentage of Native American youth confined at state and local
detention facilities or arrested by state and local law enforcement
agencies was similar to the percentage of native youth in the state's
population. But in Montana, those rates of arrest and confinement for
Native American youth were between 5-15 percent higher than the
percentage of native youth in Montana's population.
I'm also concerned to know that Native American youth admitted to
Northern Cheyenne juvenile detention center, one of BIA's three
juvenile detention facilities, increased yearly between 2012 and 2016,
from 14 to 204. That's nearly a 15-fold jump.
Question 1. Dr. Goodwin, what do you attribute that sharp increase
to?
Answer. As we reported in September 2018, we obtained and reviewed
admission records from three juvenile detention centers in Indian
country managed by the Department of the Interior's Bureau of Indian
Affairs (BIA). One of those juvenile detention centers was the Northern
Cheyenne facility in Montana, for which we obtained records for 5
years--2012 to 2016. Our analysis showed that the number of youth
admitted to that facility increased from 14 to 204 during this time
period, as you stated in your question.
We noted in our September 2018 report that comprehensive data on
the number of tribal law enforcement agency (LEA) arrests were not
available. However, we also reported that, according to BIA officials,
the growth in the number of youth admitted to the Northern Cheyenne
facility from 2012 to 2016 likely reflected an increase in admissions
of Native American youth from surrounding tribes. Specifically, BIA
officials noted that the Northern Cheyenne facility admits youth from
other tribes, which have grown accustomed to sending their youth to the
facility, because the facility is centrally located. BIA officials also
noted that the Northern Cheyenne facility services an area where there
is a high rate of delinquency among youth, and because the facility
works well with Native American youth struggling with delinquency
issues, many tribes choose to send their delinquent youth to the
facility. Further, since 2012, the Northern Cheyenne facility increased
its bed space and staff, thus increasing its capacity to admit more
youth, according to BIA officials.
______
Response to Written Questions Submitted by Hon. Steve Daines to
Hon. Abby Abinanti
Question. Can you share more of your perspective on the specific
benefits of culturally appropriate native youth delinquency prevention
and response, including for youth while they are incarcerated?
Answer. Providing culturally appropriate prevention and response to
delinquent behavior strengthens Native American youth's identity
through connecting themselves to their village, family, and community.
It teaches self-confidence and pride, and helps them define an identity
for themselves that is relevant to their daily lives through such
activities as increased interaction with elders, fishing, hunting,
making regalia, and learning about Native American culture. It allows
them to receive services, help, and training in a manner that is
consistent with their personal world view and beliefs. This improves
results because youth actively engage and commit to the process, as
opposed to being an unwilling or inactive participant as they so often
are in the state process.
Further, often the goal of culturally appropriate responses is
different than the state systems' goals: typical state programs are
punitive while tribal culturally appropriate program aim to
rehabilitate and restore through increasing understanding of one's
place in the world, repercussions of actions, and acceptance of self-
responsibility. These are all principals of Yurok culture that inform
human behavior. A Yurok child cannot be ``reformed'' until he or she
knows family home villages, the role of family and individuals, and
accepts responsibility as a village member.
To start this process as a judge, every child that comes before me
is acknowledged as a part of a village, an extended family, and the
larger tribal community. They have names and faces, and it is as a
unique individual that I hold them accountable. As Yuroks, they are
responsible to their community and for themselves, just as their
community is responsible to and for them. Through the court response,
youth learn that Yurok people bless the deep river, the tall redwood
trees, the rocks, the mounds, and the trails. Youth are encouraged to
connect to their culture and to their community to better take
responsibility for themselves and, when prevention fails, for
addressing the problems that brought them into my court. This process
connects them to the community-both land and people-as opposed to
incarceration, separating them further from the source that would make
them whole.
A second key to preventing delinquency is to keep our youth in
school. The high truancy and dropout rates among our children limit
their futures. Children who are truant and chronically absent are more
likely to engage in substance abuse than non-truant, non-absent peers,
and those children were more likely to abuse substances whilst truant/
absent. \1\ Truancy and chronic absenteeism are extremely high on the
Yurok Reservation. For the 2016-2017 school year, in Del Norte County
the rate of chronic absenteeism among Native American students was 31.4
percent compared to a rate of21.5 percent for the County as a whole.
Similarly, in Humboldt County the rate of chronic absenteeism among
Native American students was 25.7 percent compared to 15.2 percent for
the County as a whole.
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\1\ Henry, K. L., & Thornberry, T. P. (2010). Truancy and
escalation of substance use during adolescence. Journal of Studies on
Alcohol and Drugs, 71 (I), 115-124
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The problem of youth delinquency does not reside in the youth
alone. Yurok families have experienced historical and multi-
generational trauma that affect the youth. From the mid- 1800's
children were forcibly removed from their families and sent to boarding
schools to be trained as laborers and servants. The children were
forced into labor, beaten for speaking their language or practicing
their culture, children in the late 1800s and early 1900s were also
used as indentured slaves. This is not ancient history: during WWII
Yurok boys were sent to factories and trained to build military
equipment and then, when they were of age, drafted into the military to
fight for the United States. \2\ These forced removal practices
continued through the 1950s. \3\ Today's parents and grandparents
experienced and bear the scars of this trauma. It is necessary to help
Yurok adults learn how to be present for their children, traditionally,
and also through education and wellness so they are better able to
fight for systemic change that is culturally appropriate. In fact,
including the entire family in the response is culturally proper and
traditional.
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\2\ Lowry, Chag 2007. The Original Patriots. 270 pp
\3\ Haig-Brown, C. 1988 Resistance and Renewal: Surviving the
Indian Residential School. Vancouver, Tilacum Library.
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Yurok parents, like other Native Americans, often self-medicate in
response to historical trauma. \4\ The deceptive marketing and over-
prescription opioids have added another trauma to the families who must
now try to rebuild their lives. Substance abuse is a major factor in
the placement ofYurok children in foster care. Under the Indian Child
Welfare Act ``ICWA'', the Tribe provides to all Yurok tribal members
across the United States, a caseload that currently includes a total of
269 child welfare cases. Many of these child welfare cases are a result
of opioid abuse in the home. Presently, 28 percent of child welfare
cases reported from the Tribe's Weitchpec Office caseload have been
referred as a result of documented Opioid Use Disorder in one or both
parents. This is likely an underestimate of the extent of the problem,
considering the reported over prescription rates. It is necessary to
help Yurok adults learn how to be present for their children, through
education and wellness, so they are better able to support and keep
their children in school.
---------------------------------------------------------------------------
\4\ Maria Yellow Horse Brave Heart (2003) The Historical Trauma
Response Among Natives and Its Relationship with Substance Abuse: A
Lakota Illustration, Journal ofPsychoactive Drugs, 35:1,7-13, DOl:
10.1080/02791072.2003 .I0399988
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Further, it is important to create a truancy and delinquent act
notice requirement of Native American children so the tribe is given
the opportunity to assist in the response to a delinquent or truant
act. A cultural response to either truancy or a delinquent act is a
benefit in itself, but also can allow the Yurok Tribal court through
joint jurisdiction courts to provide assistance in its Wellness
program. This will offer an alternative to the current system of
incarceration of parents of truant children in California, and allow a
more culturally appropriate response solution by trying to heal the
entire family rather than separate the family from one another and
incarcerate the parent(s). Not only will this allow for healthier
families but it develops respect for the children's background and
culture, and the school system.
Culturally, the Yurok villages and the village leaders are best
situated to develop an infrastructure that can respond to the injuries
caused by the historical events that impact the Yurok and partially
cause the struggles for parents and children. Wellness, education, and
local support can overcome these struggles, and help the tribe, and
this Country, to move forward with the next generation ofNative
American youth earning an education, learning skills, and finding paths
that have positive outcomes.
Pilot Program
To assist in combating youth delinquency, the best preventive
program is to improve education for children and parents. To make
education more relevant to the children's culture and daily lives while
promoting wellness and limiting the effect of opioids and drug use,
will develop more healthy families and children. This could be
structured through a pilot program that provides better representation
of tribal children in the education system and allows for notice to the
tribes of children who are struggling in school, or are in the
delinquency courts, so the tribe can provide a culturally appropriate
response. Notice to tribes can be structured similarly to the way
tribes are noticed in ICW A cases, and should be mandated in a similar
fashion.
The Yurok Tribe, like many tribes, is located in an extremely rural
community. Currently most Yurok children are educated in state public
schools. The State of California does not properly provide the required
response to the educational struggles in Yurok Country or other public
schools that Yurok children are attending. An approach to addressing
these problems could be to develop a pilot project that includes the
following components:
(1) Educational swat teams inclusive of attorneys for the family to
appear at all Individualized Education Program (IEP) hearings, and for
all suspensions. The benefit here is proper representation in the
education system and early notice of problematic behavior to the Tribe
to facilitate tribal assistance to the families that support these
kids. Currently, the IEP, truancy and suspension process is tightly
linked to delinquency. The benefit of this support to the children is
that it would allow for the tribe and tribal members to be better heard
in the education system, and help to better educate the families about
the education system they are in. This improvement in representation
would assure legitimate due process for Native American children, and
compel the schools to create the proper IEP to enable students to
address their education needs. These supports would help reduce the
middle school dropout rate that directly relates to the juvenile
delinquency in Yurok Country.
(2) Training that teaches parental advocacy and supports parents to
advocate for their children. The teams ideally would include attorneys,
paralegals and support staff, with the goal of representation, self-
advocacy. These efforts would offer early intervention which would
increase potential success, and in practice would derivatively allow
earlier data collection for a category that is a struggle: tribal
youth, and we would better understand the dropout rates and causes.
(3) Education for the parents, the adults in these families that
the children are relying on, is equally important. Active efforts, like
private tutors for the parents and guardians of these children who have
not received a high school degree or a GED that assists them in
enrollment and completion of on-line GED or equivalent programs.
Educated parents will understand education more which and will enable
them to be to keep the family on track and be selfadvocates through the
education and delinquency systems.
(4) Support for joint jurisdiction delinquency and truancy courts
in PL-280 States. The Yurok, Del Norte and Humboldt Counties have
already begun creating joint jurisdiction courts to hear civil matters,
including juvenile delinquency matters. The joint court has improved
outcomes for Yurok students by allowing the tribe to become involve_4
earlier in court cases, provide advocacy to the student and family, and
be involved in the disposition of the case. This is critical because
the Tribe's early and active involvement enables culturally appropriate
responses and thereby, improves responses. It is also helpful to
families combating the Del Norte and Humboldt Counties policy of
incarcerating parents of truant children; this practice is more harmful
than helpful. It can be changed through the joint jurisdictional court
and the Yurok Tribe's wellness court that allows for a diversion
program and provides family services to address the underlying issues
causing student truancy and delinquent behavior.
(5) Nationwide opioid shut-out to all medical/dental facilities for
children assuring opioids are not provided for wisdom teeth or athletic
injuries of our youth. Tribes rely on federal programs for medication
and do not have the expertise to question the one medical source
available in these rural communities.
Congress should consider authorizing and fund all or a combination
of these programs. These programs should be at least three years long
with the opportunity to be expanded into five year programs if
performance and outcomes indicate progress. Just as in addressing grant
writing concerns, the lengthier programs seem particularly important to
the process of collecting data about native children to better provide
comprehensive responses to the current youth education and delinquency
systemic failure.
______
Response to Written Questions Submitted by Hon. Tom Udall to
Hon. Abby Abinanti
Question 1. With your experience in the tribal judicial system, do
you believe that the federal government is doing enough to make
available federal funding accessible for tribal governments, regardless
of size, resources, or grant-writing capacity?
Answer. No, the Federal Government is not doing enough to make
federal funding available to tribes. As an initial matter, federal
funding would be best spent on tribal education programs to prevent
Native American children from entering the juvenile justice system.
Currently, tribal governments are not eligible for federal education
funding in the Elementary and Secondary Education Act (ESEA). In 2018
Congress appropriated almost $60 billion in federal funding for
education through the ESEA. The lack of tribal eligibility for this
funding is a huge missed opportunity to empower tribes to participate
in education programs that would result in preventing students from
becoming a part of the juvenile justice system. Specifically, tribes
should have access to funding to support tribally operated schools,
legal advocates for children and parents at suspension/truancy related
hearings and IEP meetings/hearings, and work in educational governance.
My first recommendation is to amend the ESEA to authorize tribes as
eligible entities for the federal education funding in the ESEA.
Further, should Native American children become involved in the
juvenile justice system, tribes could provide support services if there
was more federal funding available to tribes for this purpose. At
Yurok, the Tribal Court would be capable of processing juvenile justice
cases if we had federal funding to support the work. While the GAO
report on Native American Youth involvement in Justice Systems and
Information on Grants to Help Address Juvenile Delinquency (``GAO
report''), reports there are 122 discretionary grants and cooperative
agreements to address juvenile delinquency and $207.7 million went to
tribal governments and Native American organizations in fiscal years
2015-2017, \1\ this is insufficient to address the problem. The lack of
federal funding at Yurok has prohibited the Tribe from more
aggressively developing culturally appropriate responses to delinquency
and hearing such cases in the Yurok Tribal Court. If more funding was
available to tribes, Yurok could develop a tribal juvenile code and
build culturally appropriate services to support Yurok children in the
juvenile justice system. Such a system would greatly improve juvenile
justice for Yurok children because those cases are currently in Del
Norte and Humboldt Counties which are chronically underfunded and
systematically biased. In California and other P.L. 280 states that
might include the support of joint truancy courts, which would allow
the State statutorily established truancy courts to partner with Tribal
Courts and jointly resolve attendance issues. My second recommendation
is to increase federal grant funding to tribes to support juvenile
justice systems.
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\1\ https://www.gao.gov/products/GA0-18-591
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With respect to the limited existing grant programs, there are
several systematic problems that prevent tribes from being awarded
federal funding, evidenced by the disproportional amount of funds
granted to tribes as compared to available funding. The GAO report
noted that DOJ and HHS made approximately $1.2 billion in first-year
awards to grantees and only $207.7 million went to tribal governments
or Native American organizations. \2\ Grant and program requirements
are developed and scaled for states and counties, which typically have
more resources than tries. Tribes, particularly those with fewer
financial resources, lack the capacity to meet grant and program
requirements that are tailored for states and counties. To solve this
problem, the federal agencies should work with tribes to:
---------------------------------------------------------------------------
\2\ https://www.gao.gov/products/GA0-18-591
(1) develop tribal mentorship programs to aide tribes applying
---------------------------------------------------------------------------
for grants;
(2) create funding opportunities that are tailored to tribal
needs; and
(3) investment in pilot programs built around tribal juvenile
justice problems that can provide data, develop culturally-
relevant, evidence-based programs and offer proof-of-principal,
as required by the federal government for evidence-based
programs.
(4) develop resources for tribal parents who must heal their
relationship(s) with the education system that historically
concentrated on forcing Native children (often now the parents)
to lose their identity. This created a historical wrong that is
now manifesting in parent behavior of avoiding or being
confrontational to the educational system teaching their
children.
In sum, the federal government is not doing enough. To fix this the
federal government should amend existing laws authorizing education and
juvenile justice grants to ensure tribes are eligible and amend exiting
programs requirements to support tribes.
Question 2. What can Congress and federal agencies do to make
federal funding more accessible to Tribes?
Answer. First, Congress should ensure that Tribes are eligible for
all federal funding to support juvenile justice. Often times only
states or local governments are eligible for funding sources that
support critical juvenile justice programs. Tribes should be added as
eligible entities. Second, Congress should consider making minor
amendments to the grant making process. Although the Yurok Tribe has
had recent successes with grant applications, the amount of time and
effort required to apply for funding becomes prohibitive when the
funding amount is low and the requirements of the applications or the
programs frequently exceed tribal capacity. Grant applications that go
un-funded take no less time than those that succeed and grant writing
efforts take time away from implementing the very programs they fund.
The application process could be improved by:
(1) increasing the time between the release of the notice of
funding availability and the due date;
(2) staggering the release of funding opportunities so that
multiple complex applications are not due simultaneously;
(3) reaching out to tribes to announce the availability of
funds; and
(4) increasing the grant period for implementation to address
the complex realities of implementing funded programs in Indian
Country.
The design of many programs assumes that data required for the
grant application and program implementation exist which is often not
the case for tribes or other communities in rural areas. Assistance
with data collection and restructuring the way the federal government
collects, processes and shares data, and the type of data collected on
juvenile justice in tribal communities will be necessary to address
some of these problems. (For instance, counties often will collect
racial data as it participants are Native American, but not political
data as in they are Yurok citizens.)
Tribes rarely have a pool of qualified staff or ready-to-implement
culturally-appropriate programs to implement the grant programs that
are funded. The guidelines for federal programs rarely allow sufficient
time or resources to hire and train personnel and create the programs.
One solution is to extend the implementation period of programs and to
include funding for the costs of training personnel and developing
programs. Additionally, a series of pilot programs for grants and for
juvenile delinquency should be developed in collaboration with tribes,
which can then be implemented and tested by tribes so that there are
proven, evidence-based programs that can be implemented in Indian
Country to address the failings of the juvenile system in our
communities.
______
*RESPONSES TO THE FOLLOWING QUESTIONS FAILED TO BE
SUBMITTED AT THE TIME THIS HEARING WENT TO PRINT*
Written Questions Submitted by Hon. Tom Udall to Caren Harp
Consultation with Stakeholders
Question 1. When developing and implementing programs for Native
youth who enter the justice system and cited in your testimony, do you
conduct consultation with tribal stakeholders? If so, please provide a
summary of the consultation efforts undertaken by the Department on
juvenile justice and explain the areas in which tribal stakeholders
have indicated a need for resources through your consultations.
Question 2. How does the Department of Justice determine if grant
programs are serving the needs of Indian Country?
Question 3. How will the Department work to make grant programs for
accessible for Tribes with limited resources?
______
Written Questions Submitted by Hon. Tom Udall to John Tahsuda
Data on Juvenile Delinquency in Indian Country
Question 1. According to Government Accountability Office (GAO)
statements to Committee staff, the lack of a centralized data tracking
system at the BIA stalled the overall investigation by the GAO into
juvenile justice trends at the Bureau's corrections facilities. GAO
also flagged the inadequate collection of data and outdated information
technology systems as two of the five areas the Bureau and other
federal agencies inefficiently administration of Indian programs. What
is the Department doing to address widespread data deficiencies that
impedes planning, investigations, research, and general fulfillment of
its trust responsibilities in the areas of justice, transportation,
energy, education, and self-governance?
Consultation with Stakeholders
Question 2. When developing and implementing programs for Native
youth who enter the justice system, do you conduct consultation with
tribal stakeholders? If so, please provide a summary of the
consultation efforts undertaken by the Department on juvenile justice
and explain the areas in which tribal stakeholders have indicated a
need for resources through your consultations.
[all]