Racial/ethnic fairness
Youth of color are overrepresented in many aspects of the juvenile justice system from arrest to court referral and confinement. A core requirement of federal juvenile justice policy (Juvenile Justice and Delinquency Prevention Act of 2002) requires each state to identify where disparities may exist across various juvenile justice decision points. Where disparities are identified, the states must complete self-assessments informed by comprehensive data and use this research to develop solutions. The monitoring task begins with understanding federal policy for identifying racial and ethnic groups and exploring what national juvenile arrest data can tell us. Of equal importance is charting state progress toward transparently reporting meaningful fairness indicators to the public, conducting more detailed self-assessments and advancing specific strategies to improve racial and ethnic fairness at the local-level.
The JJGPS content on this topic is organized in five national comparison sections:
Additional state details, including age boundary and transfer provision summaries, are available by clicking on a state shape or name in a national comparison map or table.
Tribal delinquency jurisdiction details
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There are 567 federally recognized tribal nations within the borders of the United States. The American Indian and Alaska Native (AI/AN) youth population under 18 represents 1.9% of the population of all under 18 in the United States, and 1.45% of juvenile arrests reported to the FBI in 2013. U.S. Census statistics of 2010 indicated that about one third of people who report only AIAN heritage live in Indian country, which represents about 22% of all people whose race was reported as AI/AN only, or in combination with other races.
Delinquent acts are defined as youth conduct that would be considered a crime if committed by an adult. Child-only law violations like running away, truancy, or underage smoking are considered the ‘status offense’ of a ‘child in need of service or supervision,’ rather than a delinquent act.
Tribes may define more (adult) offenses as “civil” instead of “criminal” offenses compared to states, in part, due to tribal restrictions on jurisdiction over non-Indians committing crimes on Indian land. When an Indian is accused of committing an offense against a non-Indian, for example, most state laws are “assimilated” and become subject to federal prosecution instead of tribal law. See chart and VAWA links under Supporting legal authority section below for exceptions and more information.
Tribal police are usually first responders, and the U.S. Department of Interior, Bureau of Indian Affairs (BIA) police respond in accordance with tribal, federal, and state agreements, while major crimes subject to federal prosecution may be investigated by the FBI. The BIA is organized into 12 regions (map) and 83 agencies. (see Indian Affairs Manual, Law Enforcement Part 40). Some locations have established cooperative agreements among law enforcement, prosecutorial, and court systems to reduce the time it takes to coordinate and process delinquency cases. Stakeholders may cross-deputize police or grant special prosecutor status between or among systems and well-coordinated efforts seem to be rare, but growing. Working relationships among system stakeholders are sometimes described as strained and inefficient, and tribal resources are considered sorely inadequate in many locations.
Although federal jurisdiction is potentially more broad, federal judges commit relatively few AI/AN juveniles to secure facilities for delinquency. The Federal Bureau of Prisons contracts with state and local facilities for secure incarceration of juveniles. AI/IN youth are, however, committed to state and local facilities at double the rate of the total youth population, and 200 juveniles in tribal detention facilities are not included in that figure.
Decisions about whether delinquency allegations go before the tribal court instead of a federal or state court with concurrent jurisdiction are also influenced by sentencing constraints. In accordance with the Tribal Law and Order Act of 2010, tribal sentencing is restricted to a maximum three year sentence per offense, which applies when the tribe can meet requirements for training, appointing counsel, and facilities that may not be routinely available. This prevents some tribes from pursuing prosecution for serious felonious offenses and referrals are made for state or federal adjudications or transfer to (adult) criminal court.
Indian Child Welfare Act (ICWA)
Many jurisdictions have infused elements of the Indian Child Welfare Act (ICWA) into local delinquency practice, though it applies mainly to status offenses. ICWA requirements apply when there is "reason to know" proceedings involve custody of an "Indian Child" or ward of a tribal court. ICWA protections and notices to the tribal community can apply to status offenses and related (non-secure) placements of Indian child/ren, whether the child’s home is located in Indian country (per P.L. 280) or a reservation (under ICWA’s broader definitions) or not. ICWA specifically does not apply to a (delinquency) placement of a minor for what would be considered a crime for an adult. When tribal definitions classify more juvenile behavior as status offenses than the state would, ICWA elements become more relevant to the scope of juvenile justice practice in Indian country than a state might expect. See links for ICWA BIA guidance, designated tribal agents, Native American Rights Fund's Practical Guide, and NCSL's State Statutes Related to ICWA.
Resources
From learn more on landing page:
Supporting legal authority (also see state summaries)
- Assimilative Crimes Act (18 USC 13): Federal enforcement of state laws in Non-P.L. 280 states, and increases DUI-related sentences when state law doesn’t.
- Indian Child Welfare Act (ICWA) (25 U.S.C. Section 1901 et seq, see Chapter 21): ICWA applies to youth accused of non-delinquent status offenses like running away or when juvenile dispositions include placements in non-secure facilities that meet requirements for the federal definition of foster care, or juveniles with “shared case management” with child welfare agencies or are otherwise in need of programs for successful adulthood, etc.
- Indian Civil Rights Act (25 U.S.C §1321 (Criminal), §1322 (Civil))
- Indian Country Definition (18 USC §1151)
- Indian General Crimes Act (18 USC §1152)
- Federal Enclaves Act (18 USC §7) federal criminal jurisdiction applies within Indian country when non-Indians are alleged to be either the offender or victim.
- Land Claim Settlement Acts
- Major Crimes Act (18 U.S.C. §1153) Federal jurisdiction over: murder, manslaughter, kidnapping, maiming, felonious sexual abuse, incest, felonious assault, assault against a child under age 16, felonious child abuse/neglect, arson, burglary, robbery, and felonious theft or embezzlement within Indian country (includes “Optional” P.L. 280, Land Settlement Act and other states with concurrent Tribal and State jurisdiction)
- Public Law (83-280 of 1953) (initial); as amended, it encompasses: 18 U.S.C. § 1162 and 28 U.S.C. § 1360.
- Tribal Consent for Death Penalty Required (18 USC 3598) Tribes must authorize a death penalty sentence for Federal Offenses committed within Indian country
- Tribal Law and Order Act (25 USC 1302) Also see Tribal Law and Order Resource Center and DOJ reports
- Violence Against Women Act (VAWA) Unlike many other offenses, VAWA recognized that tribes have "special domestic violence criminal jurisdiction" over certain offenses even when the accused is non-Indian. See DOJ VAWA website.
