C. Assimilation Through Criminal Justice Policy

The criminal justice system is a powerful assimilative mechanism because criminal laws (and the police and courts that enforce them) define what behavior is and is not acceptable within a community. The criminal justice system is both a mechanism of norm creation and norm reinforcement. When an outside culture controls the criminal justice system of another society, the outside culture can define and promote its own norms within the other society. This is what the United States has done to Native nations for more than a century.

While all Native Americans are affected when the federal government uses the criminal justice system to create, impose and reinforce norms, Native youth are particularly vulnerable. The criminal justice system routinely exposes Native juveniles to foreign courts, and often acts to separate them from their families, cultures, and nations. Native youths frequently end up in state or federal systems. Once in those foreign systems they are treated more harshly than their non-Native counterparts.

Under the current jurisdictional scheme, Native juveniles often fall under the control of the state. For instance, if a youth commits a delinquent act outside of Indian Country, Native nations automatically lack jurisdiction, regardless of where the Native juvenile is domiciled. In such cases, it is the state that regularly has jurisdiction. In such cases Native youths are subject to state law and the state juvenile justice system.

Similarly, the majority of Alaskan Native juveniles are subject to state jurisdiction under the reasoning articulated by the Supreme Court in Alaska v. Native Village of Venetie Tribal When Native nations lack the judicial, financial or treatment resources to properly handle juvenile delinquents, they often transfer jurisdiction to the state and contract for use of the state's judicial and treatment systems. For some Native nations, the alternative to turning their juvenile delinquents over to the state is to merely return them to their homes without any formal processing or treatment whatsoever.

Native juveniles can also fall under federal jurisdiction. For instance, federal courts have jurisdiction over any crime committed in Indian Country that is listed in the Major Crimes Act. Federal courts also have jurisdiction over crimes that fall under the Indian Country Crimes Act, or the Assimilative Crimes Act. These two Acts apply only when a Native individual commits a crime against a non-Native in Indian Country, and even in those circumstances, their applicability is limited. Finally, the Federal Juvenile Delinquency Act (“FJDA”) allows federal courts to assert jurisdiction over Native juveniles who violate any federal law prior to their “eighteenth birthday[,] which would have been a crime if committed by an with Attorney General certification. Certification requires the Attorney General, after investigation, to certify to a federal district court that in that particular case: state courts have no jurisdiction or refuse to assume jurisdiction; or the state does not have adequate services for the juvenile in question; or there is a substantial federal interest in adjudicating the juvenile in the federal system. In such cases, the Attorney General's certification need not address the issue of tribal jurisdiction or tribal juvenile services.

There are therefore multiple ways that a Native juvenile might be pulled into the state or federal system. When this happens, Native nations are unable to apply their “traditions and customary rehabilitative” processes to their own children. Instead, foreign procedures and values are imposed upon Native youth. To complicate matters further, once a juvenile enters an outside system, he or she might end up being placed in an off-reservation residential treatment facility, separated from his or her family and community. This occurs frequently in federal juvenile proceedings because the federal government neither owns nor operates any juvenile detention facilities. Thus, “American Indian youth are often shipped to public and private facilities hundreds of miles from their In such cases Native nations have no say in the decisions that greatly affect their own youths.

Tragically, there is strong evidence that when outside governments make decisions about juvenile delinquents, they do not treat all races equally. Native Americans are disproportionately represented at all levels of the juvenile justice system, indicating systemic biases against Native children. For instance, although Native youth make up approximately 1.4% of the juvenile population, they are arrested at rates significantly higher. If a juvenile continues through the system after arrest, there are two primary options available: diversion or detention (which generally leads to formal At this stage, the more lenient option of diversion occurs 10% less often for Native Americans than it does for whites, and detention occurs 10% more often for Native Americans than whites. Native juveniles are adjudicated at a higher rate than any other race, and after adjudication, Native youth are put on probation at a lesser rate than any other race. Rather, they are more likely to receive the most punitive sanction - out-of-home placement. Native Americans make up 2.3% of all out-of-home placements and they are at least 50% more likely than whites to be removed from their home and placed in a residential treatment facility.

In addition to adjudication, in some circumstances juveniles can be entirely removed from the juvenile justice system and tried as adults. Removing a minor from a juvenile court is very serious as it exposes him or her to possible prison time. Of all races, Native Americans are the most likely to be removed to adult court, and they are 50% more likely to be tried as an adult than their white counterparts. Once a Native youth is tried as an adult, he or she is almost twice as likely as a white youth to end up in a state adult prison. In some states, the rate of Native juvenile imprisonment is more than fifteen times that of whites.

Native youths do not fare any better when removed and treated as adults in federal court. Between 1994 and 2001, more than 60% of all incarcerated youth in the federal system were Native. Some of this over-representation can be explained by the fact that the federal courts have jurisdiction over certain crimes when they occur in Indian Country, but social factors also contribute to the over-representation. Native over-representation in the federal system coupled with harsh federal sentences reveals that Native juveniles are being treated differently, and more severely, due to their status as Indians.

* * *

As indicated, federal policies have routinely separated Native youths from their families, and then allowed non-Native institutions such as schools, non-Native families, juvenile placement facilities, or federal prisons to impose outside norms on those same youth. Generally, these norms have nothing to do with the youth's Native culture and understanding of the world. They obviously harm Native nations' sovereignty and right to preserve their own peoples and cultures; but they also have very real impacts on the families who are victims of these policies.

Humans are social beings by nature. In order to develop properly, young children must have opportunities to establish meaningful attachments to their parents or caregivers. Many Native communities use extended family and kinship relatives to raise a child, ensuring that such attachments occur because even if a “child's parents are not emotionally or physically available, these other extended family or community members may become critical ‘objects of attachment’ for the Research indicates that brain development is hampered without these attachment opportunities. Additionally, a child who has no critical object of attachment is more likely to lack essential social skills (including the ability to feel empathy and remorse), lack the ability to understand his or her own feelings, lack the ability to adjust to change, act defensively, and have a lower IQ than other children.

It is also the case that the strict routines of certain institutions - such as boarding schools - serve to increase a child's dependence on outside decision-makers, thus stunting creativity and independence. When federal policies separate a child from his or her caregiver, the government is traumatizing that child in a way that has the potential to affect the child's physical and emotional development in irreversible ways. Even when separation occurs at older ages - as is sometimes the case with boarding schools or the juvenile justice system - there is evidence that this separation still produces “severe distress” that can interfere with the youth's “physical, mental, and social growth and

Moreover, when children are separated from their families and are raised by outside institutions, they lack the experience of being parented. This, in turn, means that when these separated Native youth become parents themselves, they have no model to draw from, and no amount of formal training can adequately compensate for this deficiency. The tragic nature of this situation is perhaps best-stated by the late Native American psychologist Carolyn Attneave, who writes:

I recall vividly how often each year worried sets of parents would come to the clinic begging for help in securing placement in a boarding school for their eight- or nine-year old child. This puzzled me, and it soon became clear that although it was heartbreaking for them to part with their child, they knew of nothing else to do. Neither they nor their own parents had ever known life in a family from the age they first entered school. The parents had no memories and no patterns to follow in rearing children except for the regimentation of mass sleeping and impersonal schedules that they had known. How to raise children at home had become a mystery.

The act of imposing and reinforcing foreign norms on children who have been separated from their families is just as harmful as the act of separation itself. When Native children are separated from their community, they lose the opportunity to learn about their own culture and heritage. This loss is worsened by the fact that these same children may be learning values that conflict with those of their Native communities, or they may be taught to devalue their own culture altogether. These youth are often reminded that they neither fit in with majoritarian society, nor with their Native communities. This results in feelings of alienation, invisibility, and loss of self-esteem and self-identity. Although difficult to quantify at times, the internal conflict and poor self-image often associated with Native youth who have been raised with conflicting norms may result in serious social problems, including increased unemployment, substance abuse, and suicide.

* * *