2016 Tribal Juvenile Code: Youth Don’t Belong in Adult System

By Nils Franco, Juvenile Justice Fellow

The U.S. Bureau of Indian Affairs (BIA) expressly denounces the trial of youth under age 18 as adults in a draft model juvenile justice code published earlier this year as a template for tribal law. Tribal governments face unique challenges in juvenile justice, with systems of overlapping jurisdictions spurning confusion and threatening tribal rights as well as children’s rights. The juvenile code helps American Indian and Alaskan Native tribes develop codes of their own for operating tribal judicial systems.

The BIA’s draft of the Model Indian Juvenile Code does not provide for an adult-system transfer under any circumstances. A sidebar explaining the decision succinctly explains:

“Trying children as adults has not been shown to reduce crime, facilitate rehabilitation, or make communities safer.”

Citing research compiled by the Department of Justice (as well as by the Centers for Disease Control), the explanation details how transfer has “little deterrent effect on would-be juvenile offenders” while in fact having “the unintended consequence of increasing recidivism … and thereby promoting life-course criminality.”

BIA’s statements to that effect are noncontroversial in the criminological community, but rarely does an authority – a state legislature, for instance – have an opportunity to rewrite the juvenile code from top to toe to reflect evidence-based practices. This model code presents just such an opportunity for BIA.

Congress mandated the code with legislation in 1986, and the first version published in 1988; however, BIA has not issued an update since. The update, co-developed with American Indian groups and tribal law scholars, brings together evidence-based and developmentally appropriate practices, approaching juvenile delinquency from more of a public health perspective. BIA oversees U.S.-tribal relations with more than 500 federally recognized American Indian tribes.

The update to the 1988 model code assists “federally recognized tribes in creating individual codes focused on juvenile matters,” according to a BIA press release. The code, along with other advancements from the BIA and Department of the Interior (which oversees BIA), represents bolstered support for tribal sovereignty through the oft-criticized Bureaus of Indian Affairs and Indian Education.

Administrators from the Department of Justice and Department of the Interior as well as advocates in tribal sovereignty and juvenile justice herald the new code. DOJ Office of Juvenile Justice and Delinquency Prevention (OJJDP) Administrator Robert Listenbee called the update “an important step forward in ensuring tribal courts have the resources they need to respond effectively to at-risk and delinquent youth in Indian Country,” noting that the revision attends to the OJJDP mission of “safeguarding the fair and equitable treatment of all youth in the juvenile justice system.”

The head of BIA, Lawrence Roberts, says the 2016 model code “improves decades-old guidance to aid tribes in developing their own codes that will serve and protect” justice-involved youth. The National Council of American Indians and the Center of Indigenous Research and Justice both provided technical and community input to support the drafting of the code.