CODE DEVELOPMENT: PROCESS AND STRUCTURE  By Stephen Wall and Ada Pecos Melton

American Indian Development Associates Quarterly

CODE DEVELOPMENT: PROCESS AND STRUCTURE

 By Stephen Wall and Ada Pecos Melton

June 2003

Volume 1, Issue 4

Introduction

The purpose of this monograph is to provide tribal juvenile code writers and developers an overview of issues to consider in the code development process. Often the tribal code development process consists of the tribal executive contacting the tribal attorney and asking that a particular code be developed. In the past, tribal attorneys have generally taken one of the following approaches. One is the wholesale adoption of the existing state code provisions. The other approach is to use provisions from various state and other tribal codes verbatim or as a model for the tribal code. Neither of these approaches serves the tribal community very well. For code development to be meaningful and appropriate for the community, it must reflect the community’s values, assumptions, culture and authority.

There are a number of reasons why the above approaches fall short in helping tribal communities develop culturally relevant codes. The foremost reason is that the assumptions that make-up the state judicial system are not necessarily the same assumptions that make-up the tribal judicial system. Assumptions range from legal concepts such as due process to cultural concepts such as the role of the family. Even the role of the court is based in assumptions that vary from culture to culture. Using state statutes to define substantive and procedural law in tribal communities undercuts efforts to insure that the code is designed to address the issues facing the community and insure community participation and buy-in for the code. While using state statutes may appear cost efficient and fast, the long-term impact on the community must be added into the equation. If tribal law and state law are the same, what is the practical reason for tribal sovereignty? What will be the long-term impact of using non-tribal laws on the expectations and assumptions of the tribal community at large? If the tribal and state laws are the same, what expectations will state agencies have of the tribe and what would be the basis for using tribal culture as a concern for influencing state decisions for court involved youth?

This is not to say that state statutes and other tribal codes have no role in tribal code development. External codes can be used as models to identify critical issues and concepts important for inclusion in a code. However, the resolution of those issues and application of the concepts should come from each tribe’s indigenous law-ways. External codes can also be used to identify and formulate a response to developing areas of law that are emerging in tribal communities and which have no indigenous cultural reference.

Preliminary Considerations

As with any major undertaking, there are a number of preliminary steps that need to be addressed prior to the development of a juvenile code. Just as a builder will not attempt to construct a house without plans or permits, a juvenile code should not be written without taking certain preliminary steps. Since each Indian Nation has a unique culture and governing system, the necessary preliminary steps will vary from tribe to tribe. However, it is safe to say that there are two preliminary steps that should be taken regardless of locale. These universal preliminary steps are conducting a needs assessment and insuring community participation in the code development process. While these steps may increase the cost and time needed to complete the code project, failure to conduct a needs assessment and garner community support will result in a code that does not meet the community juvenile justice needs. Resources spent planning and gathering community input and support will pay off greatly in the future from the smooth operation and acceptance of the juvenile court and code.

A needs assessment is simply the process of taking time to look at factors in the community that will be addressed by the juvenile code. Often we think that we know what is needed in the community or that we know how a project should be conducted. But later, well into the project, we find that there is a mismatch, that the need we identified was not a high priority or that our approach has ignored segments of the community. A needs assessment done as a first step in the code development project reduces the possibility of a mismatch.

Conducting a needs assessment requires planning. There needs to be a determination of why the assessment is being done, what information will be needed, how much information is needed, who will provide the information, and how the information will be gathered. Data collection instruments (DCI) need to be designed and administered. The DCIs need to be designed to capture the kind of information that will assist in determining the juvenile justice needs of the community. Once the DCIs are designed, they need to be administered to relevant programs and data sources that can provide the sought after information. After the data is gathered, it will need to be analyzed to identify crime, violence and victimization trends and attitudes. It is important to realize that what the data does not show is often as important as what is does indicate.

There can be many forms and types of assessments. Assessments can be designed to identify the basic demographics of the community. They can also be designed to address specialized areas, such as the legal needs of the juvenile justice system. They can also be used to assess the capabilities of systems and staffs. Needs assessments can also be designed around specific issues or crimes such as child abuse and neglect, underage drinking or gang violence or other emerging crime phenomena.

Insuring Community Participation

Community participation in juvenile code development adds credibility to the end product and increases the probability of community acceptance once the code is adopted. Community input is the basis for insuring that the community at large participates and, therefore, agrees to the development and design of the juvenile code. Community input will also be the point at which the community values are interjected into the development process. Those values may include traditional cultural values or may simply be social values that are unique to that community.

Code development can be a very legalistic process and cultural issues can be considered irrelevant. It is easy for those whose concerns are due process, notice and other legal issues to overlook cultural precepts governing the relationship between the child and parent or traditional alternatives to adjudication. Practitioners and others knowledgeable in cultural matters need to be heard to insure that cultural issues are fully explored for inclusion into the code. By including the community in the process, the relevance of cultural factors is acknowledged and the juvenile code will more likely reflect the cultural norms of the community.

Community input can take many forms. Almost any activity that brings community members into the code development process can be considered community input. Formats for gathering community views can range from the impersonal to the intimate. Community surveys can be administered in person or through mail. Public hearings and forums allow for a formal presentation of materials relevant to the code development process. Talking circles provide a culturally relevant process for gathering the viewpoints of community members. Focus groups are small groups of people that are brought together to address a specific issue. Regardless of the format, the important point is to insure public input into the process.

Each tribe will have preliminary steps in addition to the needs assessment and community input. One tribe may require that a council of elders review all proposed tribal codes to insure that the code is not antagonistic to tribal tradition. Another tribe may require that proposed codes be presented to the General Council (all of the tribal members) prior to enactment by the Tribal Council. Individuals and/or committees working on the juvenile code development need to know what preliminary steps will be required of them and be ready to comply.

Juvenile Code Structure

Generally, juvenile codes provide the procedural basis for handling three classifications of cases: child abuse and neglect, juvenile delinquency and status offenses. However there has been a recent trend to separate the child welfare cases from juvenile codes and place them into Children’s Codes that deal mostly with policies and procedures for child victims of abuse and neglect. In some tribes, cases involving status offenses are either handled as juvenile delinquency or child welfare cases. Juvenile codes include provisions establishing the juvenile court and provisions establishing the procedures for juvenile cases coming before the court.

Juvenile Courts as Courts of Special Jurisdiction

Juvenile courts follow procedures and policies established to further the best interest of the children coming before the court. They have personnel that are generally separate from other tribal court functions. These considerations create the need for special legislation and enabling ordinances to establish the juvenile court. This is true for all juvenile courts, not just tribal juvenile courts. The enabling legislation creates the juvenile court, defines the court’s jurisdiction and the jurisdiction of the juvenile court, and establishes policies and personnel for the juvenile court.

The following are essential code provisions to establish a juvenile court and to establish policy on a number of juvenile court issues.

Code Provisions Establishing Juvenile Courts

  1. Establishment of the juvenile court — In order to establish a juvenile court as a part of tribal court system, the tribe’s legislative body needs to pass legislation creating the juvenile court. That legislation needs to specifically identify a purpose for the juvenile code. This would include the juvenile policies of the tribe, the philosophy of the juvenile court and jurisdiction of the court.

    The tribe’s juvenile policies identify the attitudes and priorities that the tribe has set for its youth. These policies address issues such as defining the best interests of the child, whether the code is based on punishment, retribution, rehabilitation or restoration, and the degree to which the court uses tribal tradition, and relationships with other jurisdictions in instances of multi-jurisdictional matters involving tribal youth.

    The philosophy determines how the court will implement the tribe’s juvenile policies. Issues related to such implementation include the use of an adversarial approach, the role of advocates and attorneys, and the degree of family participation in various hearings.

    In tribal juvenile courts, jurisdiction is not based solely on whether the offender is Indian or non-Indian. As a court of special jurisdiction, the enabling legislation establishes jurisdiction and set limits to that jurisdiction. Jurisdictional issues should be addressed in the enabling legislation and provide guidance on the following questions:
  1. Definitions — In order for all who are involved in the juvenile court to have a common understanding of the words used in the code, it is important to have a section that defines ambiguous words or words that have special meaning in the context of the juvenile court.
  2. Court Personnel — The juvenile court has specialized staff. While in some tribal courts the judges may share duties with the tribal court, most juvenile judges are assigned full-time to the juvenile court. Since there are separate juvenile dockets, there is usually a separate juvenile court clerk. Specialized personnel may include the children’s court attorney (prosecutor), guardian ad litem and juvenile probation officer. The juvenile code should identify these positions and provide a general description of their roles and responsibilities in the juvenile court system.
  3. Evidence — There are several standards of evidence that have been established for different kinds of cases. In cases that may result in loss of freedom, the standard of proof is “beyond a reasonable doubt.” In other cases the standards of proof may be “preponderance of the evidence” or “clear and convincing evidence.” The juvenile code needs to identify the standard of proof that is needed for cases coming before the juvenile court.
  4. Placement — The juvenile court will, at some point, have to make decisions for the out-of-home placement of a child coming before the court. In such situations, it is important that the judge have standards for determining when a child should be placed out-of-home and what options are available for out-of-home placement. The issue of detention should also be addressed including the appropriateness and conditions for detention.
  5. Rights — Juvenile courts have a higher duty to protect the rights of those coming before the court than adult courts. This is because of the need to protect and educate children coming before the court. The rights that juveniles have in the juvenile court are the rights that the tribe wants to recognize and enforce. The Indian Civil Rights Act (ICRA) provides for certain basic rights, but the tribe has the authority to acknowledge and establish other rights. The tribe also has the right to interpret the due process and equal protection clauses of the ICRA according to tribal standards. The juvenile code should identify those rights.

    In addition to any tribally created or recognized rights a juvenile may have, the juvenile also has a right to confidentiality. This means that they have the right to be protected from having their legal affairs exposed. This is to prevent the child from being stigmatized or punished by the public. The right to confidentiality extends to court sessions, court records and any document that result from any court involvement. The juvenile is protected from most written, oral or electronic communication of their court record to third parties. The Federal government recognizes the juvenile right to confidentiality and enforces that right through including confidentiality requirements in grants and other assistance as a condition for receiving assistance.
  6. Appeals — There should be written procedures for appeals from the juvenile court to the tribe’s appellate court, even if the juvenile appeals procedures are the same as appeals from other trial courts of the tribe. If the appeals provisions are the same for the juvenile court as they are for the adult court, they should be incorporated into the juvenile code. If they are different, they should be described in detail in the juvenile code.
  7. Incorporation of federal or state law – The Tribe may want to incorporate or include references to federal or state law that are instrumental to the operation of the tribe’s juvenile court system. For example the Indian Child Welfare Act (ICWA) and its priorities for placing Indian children may be incorporated into the tribe’s juvenile code, assuming that the ICWA standards are the same as the tribe’s.
  8. Service of Process — Providing notice of court actions to the parties to a juvenile or children’s matter is basic to due process. Parties, especially the respondents, need to know when and where the court action is in order to properly prepare. Most tribal codes establish procedures for service of process. This may be located in different articles of the tribal code. However, there should be a statement within the juvenile code relating to service of process.
  9. Special procedures — There are a number of special procedures that are occasionally used in juvenile court. These procedures include recognition of orders from other courts, transfer of youthful offenders to the jurisdiction of adult court, and transfer of jurisdiction from state jurisdiction under the ICWA. There may be other special procedures depending on the tribal experience. These special procedures need to be referenced in the general or enabling section of the juvenile code as an authority that the court possesses.

Juvenile Court Procedure

Juvenile courts, as institutions, came about as separate courts from adult court in the early twentieth century. The reason for the separation of the courts was the premise that youth are still developing, and are in need of guidance and protection and they are more amenable to rehabilitation than adults. Therefore the procedures of the juvenile court reflect an educational or rehabilitative approach rather than one of punishment or retribution. As a result there are a number of structural and procedural differences between juvenile and adult courts.

The most apparent difference between juvenile and adult court procedures is how juvenile cases are initiated. Generally, most juvenile codes require that the juvenile first be referred to a probation officer or other officer of the court. That person works with the juvenile to determine whether the juvenile’s behavior can be corrected informally or if formal charges should be brought. If the probation officer or other service provider can work with the juvenile, the juvenile may agree to an informal adjustment pending the outcome of the counseling, treatment plan, restitution or other recommended course of action. If the probation officer does not feel that the juvenile can be worked with informally, formal charges are filed in juvenile court.

Once charges are filed, the child is brought into the juvenile court. What would be called an arraignment in adult court may be called first appearance or initial hearing in juvenile court. At that first appearance the juvenile will be asked to stipulate to the charges or may be asked to admit or deny the charges. A stipulation or admission is the juvenile equivalent of a guilty plea in adult court. A denial or failure to stipulate is the juvenile equivalent of a not guilty plea in adult court. If the juvenile stipulates to the charge, a disposition will be entered. A disposition is similar to a sentence. Generally juvenile codes provide for a wide range of dispositional alternatives that may include incarceration, fines, probation with various conditions, treatment/counseling, restitution, out-of-home placement, or other options authorized by the code.

Incarceration for juveniles is a delicate matter. While the punishment philosophy generally demands incarceration, the rehabilitative philosophy demands the least restrictive environment. The stated purpose of juvenile courts is to insure that the young person brought before the Court is protected and educated to do what is right. Incarceration goes against the grain of this approach. There are a number of factors that must be considered when looking at juvenile incarceration. First, there are times when the best interests of the community, family or the juvenile requires some level of confinement. There must be some balancing between the interests of the juvenile and other interests impacted by the juvenile’s actions. Second, is the impact that incarceration might have on the youth’s development. Will the juvenile change outlooks and attitudes after a few days of incarceration or will the facility teach the youth a more negative lifestyle than what the juvenile is already involved? The third factor is whether the offense is truly serious enough to justify the costs of incarceration to the child, the family and the community? The costs involved are not just financial. Costs to the juvenile include loss of freedom, potential exposure to harm in the facility, separation from family and having a record that reflects an act serious enough to require confinement. For the family, costs include separation from the juvenile, shame, worry and actual financial costs for visitation. Community costs include such costs as the financial cost of incarceration, respect for the court and the development of attitudes of acceptability of incarceration as a normal way of handling youth offenders by the community. Due to levels of poverty in some tribal communities and possible parental neglect, the deterrent effect of incarceration may be diluted because incarceration may provide the juvenile with food, shelter and security that does not exist in the home environment.

Juvenile incarceration is not only a complex sentencing alternative, it is very expensive. Federal law has strict standards for juvenile incarceration facilities. These standards control the physical layout of facilities, staffing and services. Juveniles have the right to an education while incarcerated and they also have a right to medical care and other remedial services to rehabilitate them. The rights to education and other rehabilitative services create costs that go far beyond simple incarceration. In addition, the standards requiring gender separation and complete separation from adult offenders create staffing and physical plant requirements that translate into extra expense to the average tribal jail. The juvenile court must consider these costs as they consider incarceration as a disposition option.

Since juveniles are not adults in the sense that they are still developing and need guidance and protection, there is increased concern for their rights when they come into the court’s jurisdiction. Foremost is the concern for confidentiality. Young people make mistakes. It is important that they are able to learn from their mistakes and better their life rather than have the life mistake cripple their future potential. However, if they are publicly chastised, labeled or identified as a problem, a young offender may not be able to overcome the impacts of negative community perceptions to become a productive citizen. From these concerns arose strict standards of confidentiality in juvenile cases. All juvenile delinquency hearings are closed. That means that there are no spectators in the gallery, witnesses are sequestered prior to testimony and leave the courtroom as soon as their testimony has been taken. Only the juvenile and family, legal counsel and victim are continuously present in the courtroom. Federal standards require that juvenile files are coded and kept locked and separate from other court files. Juvenile court staffs are trained in confidentiality issues to insure that there are no breaches of confidentiality in juvenile cases.

In addition to the protections of confidentiality, juveniles enjoy the same civil rights as adult defendants. In the early development of juvenile courts, most rights afforded to adults were denied juveniles due to the differing nature of the two courts. However, as years progressed, it became apparent that even with the basic premises of education, guidance and rehabilitation, there were times when juveniles needed the same protections as adult defendants in criminal cases. In Re Gault was the first case recognizing the juvenile’s right to procedural due process. As a result, juveniles have essentially the same rights in their hearings as adults have in criminal trials. Those rights include the right to notice of the charges, the right to enter a plea and the right to a hearing. The juvenile has a right to representation, although in tribal courts, the juvenile is responsible for payment of the representation. The juvenile has the right to subpoena witnesses and to cross-examine witnesses who testify against him. Juvenile also have the right against self-incrimination. Due to the nature of juvenile courts, the juveniles have the right to placement in the least restrictive environment. Lastly, at each hearing, the juvenile has certain rights specific to each kind of hearing.

Juvenile Delinquency Procedures

Purpose

The purpose of a juvenile delinquency section in the juvenile code is to provide a process for adjudicating criminal offenses committed by young offenders.

Juvenile Probation Office

The juvenile probation office is key to the juvenile justice process. Most, if not all, juvenile delinquency procedures place the juvenile probation officer (JPO) as the initial point of referral when a juvenile is referred to the court. The JPO also makes recommendations to the court concerning youth who face formal adjudication. And lastly, the JPO supervises youth adjudicated and placed on probation. The juvenile code needs to include provisions to establish the juvenile probation office. Establishing a juvenile probation office includes delineating the staff and assigning responsibilities to those positions.

Initiating Cases

The process for initiating a juvenile delinquency case needs to be spelled out in sequential and logical order. In most jurisdictions, cases are initiated by the JPO after receiving reports from the police or private citizens. Generally the JPO attempts to work with the juvenile to correct the offending behavior without a formal court hearing. This pre-adjudication process may include a formal agreement between the juvenile, the juvenile’s parents and the probation officer. These agreements are called consent decrees. Consent decrees often have provisions that are very similar to probation or parole agreements. They may include a curfew, requirements for counseling and other rehabilitative efforts. If the youth fails to fulfill the consent decree, the JPO refers the case to the children’s court attorney or prosecutor for formal adjudication. However, each tribe has the option to design the referral process to meet the needs of the community and the juvenile court structure. Tribal policies and the court’s philosophy will direct the process for initiating a case in juvenile court.

Custody

Taking a child into police custody is an extraordinary measure. It is extraordinary due to the potential liabilities inherent in juvenile detention. In addition to the usual liabilities of possible injury to self or other inmates, additional liabilities include exposure to criminal elements that may negatively influence the child, possible loss of educational or health services, and damage to emotional health from being isolated from parents and family. For these reasons, the juvenile code should contain standards defining the situations in which a juvenile may be taken into custody. Each community can establish standards for detention that the community feels is appropriate for its culture, levels of delinquency and kinds of crimes committed by juveniles. Generally a juvenile can be taken into custody only if the child is a danger to self or others or has no parental supervision. However, the kind of crime the juvenile committed may be a factor in the decision to detain. If a child is detained, the child has the right to a detention hearing within a number of hours, usually no more than 24 hours after the detention, excluding weekends and holidays. In some communities, the required hearing must be held within 8 hours. One tribal community does not allow any detention of juveniles. Whatever the local standards may be, it is important that they be written and followed.

Just as there are standards for taking a child into custody, there also needs to be standards for the release of the child. The child needs to be released back into a safe and supervised environment. If the child has no adult supervision, release from custody can be problematic. It is even possible that some liability may attach if the juvenile is injured after having been released into a dangerous situation. Often juveniles adjudicated as delinquent have little or no adult supervision. If the parents are temporarily incapacitated or are unable to control the juvenile it may be in the child’s best interest to remain in custody. However, continued custody should be viewed as placement and should not continue in a jail facility. If a juvenile is released from custody pending a hearing, the release should have conditions with which the juvenile and parents need to comply. Such conditions could include curfew, compliance with tribal laws, counseling and others necessary to insure the child protection and appearance in Court at the appointed time.

Note: detention is considered as pre-adjudicatory; incarceration is viewed as post dispositional.

Detention Hearing

The juvenile code must also delineate procedures for detention hearings. A detention hearing is a procedure by which the court determines if it is in the best interest of the juvenile to remain in custody or be released. The procedures should include time limitations establishing a time limit for bringing the juvenile before the Court for a detention hearing. Most codes require detention hearings within 24 hours. The procedure also needs to recognize the rights of the juvenile. At the detention hearing the child has the right to know the accusations filed. They also have the right to present evidence of personal recognizance or of the ability of parents or others to provide adequate supervision. If the decision is for the juvenile to remain in custody, the court establishes the parameters of the custody. Parameters include the physical location and the length of time of the detention. If the decision is for the juvenile to be released, the Court may set conditions for release. Such conditions include identifying the persons to whom the juvenile is released, where the juvenile will stay pending any further hearings, curfew, compliance with tribal laws, counseling and others necessary to insure the child’s protection and appearance in Court for pending hearings.

Hearings

Detention hearings are not the only proceedings that the juvenile would go through during the process of resolving the charges filed. There may be motion hearings, placement hearings and other pre-adjudication proceedings. The final hearing, except for appeal, is the adjudication hearing. Adjudication hearings determine whether the juvenile committed or is responsible for the act the juvenile was accused of. Since juvenile cases are civil actions and not considered criminal in nature, language that arises from the criminal law arena is usually avoided. Thus, juveniles are not found guilty or proven innocent. They are found to be responsible or liable for the act they were accused of.

It is a very serious matter for a juvenile to be adjudicated as a juvenile delinquent. The label of being a juvenile delinquent is one that may negatively impact the youth for life. It is quite possible that the finding of juvenile delinquency will impact the child’s quality of life more than incarceration, a fine, restitution or other remedy imposed by the court.

The juvenile court takes evidence in generally the same manner as a criminal or civil court. The prosecution has the burden to prove that the juvenile performed the act that is the basis for the referral. The juvenile has the right to introduce evidence and cross-examine witnesses to prove that he was not responsible for the act. The juvenile judge has the responsibility to weigh the evidence, protect the rights of the juvenile, and insure that the rights and claims of the victims are protected and the community interests met.

Once all of the evidence has been received, the court makes its decision and announces its findings. Generally the court will either find the juvenile to be responsible or liable for the acts alleged in the referral and adjudicate the juvenile as delinquent or determine the child not to be responsible for the act and dismiss the referral.

Pre-dispositional Studies, Reports and Exams

Once the judge has determined that the juvenile has committed the delinquent act, either by admission of the juvenile or through adjudication, the court will enter a disposition. Often the court bases its disposition on information from reports that have been submitted by probation officers, social workers, medical personnel, psychologists and others via a court order.

Dispositional Alternatives

The court crafts a disposition or sentence based on recommendations or findings in the pre-disposition reports, victim’s statements, any extenuating circumstances and the attitude of the juvenile. The court should have a number of alternatives for disposing of the case, such as follows:

Probation is the most common disposition. Probation is the process in which a sentence is suspended and the young offender is released based on a promise of good behavior. Probation requires that incarceration be imposed, but the sentence sususpended. Probation also requires that the probationer live up to certain standards of behavior for the term of the probation usually referred to as conditions of probation. Conditions of probation may include curfew, counseling, community service, compliance with tribal law, periodic contact with the probation officer and drug testing. If the juvenile fails to comply with the provisions of the probation, the probation officer may petition the court to revoke. The petition to revoke the probation needs to include allegations of which probation condition the probationer violated, when they were violated and how they were violated. The court schedules a hearing to review the petition and its allegations. If the allegations are proven, the suspended incarceration may be imposed.

Community Service is often used as a disposition. Community service is a court ordered service to a community agency or person identified by the court or probation. Community service is measured by the number of hours-of-service that need to be completed by the offender. However, there are limitations on the court’s ability to impose community service. Issues of liability and supervision often limit options. Which agency would be liable if the juvenile were injured while fulfilling a community service—the court for having placed the child where the injury occurred or the agency with which the child was placed? Who supervises the child? If the agency supervises the child, issues of liability and cost of supervision arise. If the court supervises the child, who does the supervision and who pays for it? Which agency has the time or personnel to supervise the probationer?

Restitution is one way for an offender to be accountable and make amends to a victim harmed by the offender’s actions. Restitution is a way to compensate the victim for actual damages suffered due to the delinquent act. Restitution is not a fine because the proceeds go directly to the victim. It does not include punitive damages or damages for pain and suffering. The court may limit or deny incidental damages or consequential damages as part of restitution.

Fines are payments made to the court as punishment for wrongdoing. Fines are often suspended for juveniles as part of the probation agreement.

Incarceration is the ultimate dispositional alternative. Incarceration can be an effective alternative, however, there are some issues related to its use.

The juvenile code should provide guidance to the court in determining incarceration options. That guidance may be in the form of basic standards for incarceration facilities. Standards for juvenile facilities are more than the basic physical requirements. In order to meet the special needs of incarcerated juveniles, the facility must have developed a program for education, health and counseling. Those basic standards are federally mandated. The standards in a tribal juvenile code may be the minimum federal standards or the tribe may want to add culturally relevant standards to meet the needs of tribal youth.

Parole is the early release from incarceration on the promise of good behavior. Parole is usually granted after a person has served a major portion of the incarceration that was ordered. The remainder of the sentence is suspended and the parolee agrees to comply with certain conditions. Parole is administered the same as probation. Probation and parole agreements are very similar and the revocation process is essentially the same.

Limitations on dispositions available to the court are based in the loss of jurisdiction over the juvenile and determinations of the best interest of the child. Since the juvenile court is a court of special jurisdiction, limitations to jurisdiction are built into its enabling legislation. The major limitation is age. When the juvenile reaches a certain age, the juvenile court loses jurisdiction over the matter. In addition, the juvenile code can provide for an extension of jurisdiction over cases adjudicated prior to losing jurisdiction in order to fulfill sentencing requirements. A second limitation on dispositional alternatives is the requirement that all decisions be made in the best interest of the juvenile. Not all dispositions can be applied to all youth. The code needs to acknowledge the need for individually crafted dispositions that allow juvenile judges to take the time to fashion dispositions that provide for the best interest of the youth while addressing victim issues (if applicable), and restoring the community back to wholeness.

Liability – Parent and Youth

Once a juvenile has stipulated to or is adjudicated as being liable for damage to property or injury to a person the code must provide a way of discharging the liability. If the liability can be discharged through community service or specific performance, the juvenile can be ordered to fulfill the obligation. However, if the liability is financial, there may be some limitations to discharge. The earning power of the youth may be insufficient to discharge the obligation. In addition, the best interest of the child may require that the child’s education be placed at a higher priority than discharging the liability. In such instances, the parents may be held responsible. Often it is assumed that the parent is liable for the debt of their children, but it is best to insure that there are no questions concerning parental responsibility. The juvenile code should define the degree of parental liability and responsibility when the juvenile is found liable and unable to fulfill financial liability.

Special Proceedings

The juvenile code needs to provide for special circumstances that occasionally arise or need to be addressed.

Violations under a traffic code are generally considered minor and simply consist of the ministerial task of collecting fines. However, if a youthful traffic offender denies the charge, then there needs to be a hearing. It is rare that a traffic offense reaches the point of being a juvenile delinquency referral, but there are situations in which a traffic offense can be considered a juvenile delinquency case. The code needs to establish standards for determining when a traffic case should be filed as a delinquency petition. Three possible situations in which traffic violations could result in a juvenile referral are: 1) the violator is on probation and the traffic offense may be considered a violation of the probation agreement, 2) the traffic violation is of a serious nature that endangers lives or results in serious injury or loss of life, including alcohol or drug related traffic offenses, or 3) the number of violations indicate that the violator is not changing behavior through the usual traffic violation remidies.

Status offenses are actions that are considered offenses solely because of the age of the offender. If an adult took the same action, the action would not be considered an offense. Examples of status offenses are curfew violation, truancy, runaway and minor in possession of alcohol or tobacco. Under American law, a juvenile adjudicated because of a status offense cannot be held in detention or incarcerated. Federal and state courts follow that directive, however many tribes still detain or incarcerate juveniles for status offenses. The major issues with status offenses is that violations are committed by a young person who has limited life experience, or is reacting to a bad family situation, or lacks proper supervision. A runaway is a person who is having problems at home and feels that they cannot resolve the problem. The juvenile violating curfew is often without proper supervision. The minor in possession of alcohol or tobacco may be using these substances to show rebellion or to temporarily escape life’s problems. Thus the unseen co-conspirator in most, if not all, status offenses is the parent. This is not to reduce or excuse the juvenile’s decision or actions, but shows that the actions are not just the juvenile’s recalcitrance. The juvenile code needs to acknowledge the parental role in status offenses and it needs to insure that the juvenile is not the only person in this constellation that is punished or treated.

Mentally disordered or developmentally disabled juveniles present special problems for the juvenile justice system. The basic philosophy of the juvenile court is that the juvenile is to be taught and developed through the juvenile court experience. If the juvenile’s decision-making capabilities are diminished or incapacitated, the basic philosophy of the juvenile court cannot be utilized. There is also a due process issue of incarcerating or penalizing a person who does not have the mental capacity to understand that their actions are violations of law. The fetal alcohol syndrome prevalent in some tribal communities is creating the likelihood that the juvenile court will be adjudicating offenders who may not have an understanding of the consequences of their actions. With such offenders, traditional dispositional alternatives may have little impact. Juvenile code writers need to be aware of these issues and develop alternatives to serve the best interest of these juveniles while at the same time protect the community.

Legal Review and Adoption

Legal review is the process of having an attorney or other legal expert review the code prior to its adoption. The proposed juvenile code needs to be reviewed to insure that it is in compliance with existing codes of the tribe and federal mandates and is compatible with the existing judicial system. The legal review can be a trying time in the development of the juvenile code. Those conducting the review may not have the sensitivity towards tribal cultural issues that they have to the legal issues raised by the proposed code. It is at this point that the balance between western concepts of law and process and indigenous concepts of justice and their relationship to culture must be struck. It is also at this point that community input, particularly in the areas of indigenous judicial concepts and culturally based processes, are important. The concepts and processes identified at the beginning of the code development process provide the necessary supports for the tribal institution if “legal” concerns arise that are based in western jurisprudence.

The process of code development and adoption will vary from tribe to tribe, community to community. For some tribes, the tribal council may require that a committee or subcommittee of tribal council members oversee the code development process and determine when the proposed code is ready to present to the council. Others may simply assign a tribal agency or committee of tribal employees to oversee the code development, and still others may order the tribal attorney to draft the proposed code. Regardless of which process is used, the seriousness of making law is not to be taken lightly. The code will be reviewed by the tribal council and given long consideration. It is not unusual for tribal councils to return the proposed code with a number of issues and questions that need to be resolved prior to adoption. Adoption, regardless of the tribal process, may be a long, drawn out and possibly frustrating experience.

Different political structures require different processes for review and enactment of a new code. Enacting a code and creating law is the ultimate act of the tribe’s legislative body and is the highest exercise of tribal sovereignty. Each Indian nation will have a different process for such an action. The traditional Pueblos of the southwest are governed by a theocracy whose laws and governmental structure are not written. The Navajo Nation and some others do not have a constitution and they govern themselves through their tribal code. Many tribes have adopted or adapted constitutions provided under the Indian Re-Organization Act (IRA) model. Different forms of tribal government have differing processes for the adoption of codes. Even the tribes that have adopted IRA constitutions have constitutional provisions unique to that tribe. As the proposed code is being developed, those persons promoting and developing the code need to be guided by the adoption and enactment process for their tribe or the tribe they are working with.

Tribes enact laws through the passage of statutes or ordinances. Tribes often pass resolutions, however resolutions are simply a statement of the will of the tribe and as such are not appropriate for enacting codes of law. A resolution is generally used for temporal matters: that is matters that will be resolved within a given period of time. An ordinance or statute is used in matters of eternal duration: that is, matters upon which time will have little impact. Since a juvenile code is of a permanent nature, its’ adoption must be based on more than a statement of the will of the tribal council. The adoption of a proposed juvenile code, like other codes, must be seen as the highest exercise of tribal sovereignty. The adoption of the proposed juvenile code must through tribal ordinance or statute.

Conclusion

The development of codes and laws is the supreme exercise of tribal sovereignty. By enacting laws, the Tribe is establishing its standards of behavior and action for years to come. The law that is enacted will create the type of society that exists in that community. The indigenous norms, values and traditions of the community will be reflected in the law or they will be forgotten and abandoned if the law is not based in those indigenous concepts. Code development is not only the supreme exercise of sovereignty, it a reflection of the will of the community coming together to establish its future. The code development process must be grounded in the needs of the community and included those precepts necessary to the continued identity of the community.

Juvenile code development is a balance between the concepts that have come about through the history of American jurisprudence and the traditional values, mores and concepts that have regulated and mediated the relationship between the child and society in the Indian community. For those tribal communities that have incorporated western concepts into their court system, the development of the juvenile code needs to include the establishment of the juvenile code as well as those provisions that control the operation of the juvenile court. Even those tribes and tribal communities that rely heavily on tribal traditional institutions to resolve disputes involving juveniles and family matters, there may be some aspects of the western system that have some applicability or utilization. It does not matter what direction the tribe takes in handling its juvenile cases; what is important is that a community based process is applied, utilizing needs assessments, community planning and insuring community input and control of the process.

Citation: Wall S. & A. P. Melton (2003), Code Development: Process and Structure, American Indian Development Associates Quarterly, Volume 1, Issue 4.

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