Violent Juveniles Removed From Homes

¶ … Violent Juveniles Removed from Homes

The legal relationship between the Americans and Native Americans has long been one that ensured the European descendants of the earlier settlers had and would retain legal domain over the territory and lands originally under Native American domain. Early laws governed fishing and hunting, and by the late 19th century, the courts were upholding the States' territorial rights over land claims made by Native Americans (Johansen, 1998, p. 8). In 1884, the Supreme Court delivered its decision in the case of Elk v. Wilkins, which held that an Indian was not made a citizen by the Fourteenth Amendment of the Constitution (Johansen, 1998, p. 8). The Court held, too, that acts of Congress do not extend to Native Americans unless it specifically mentions the Native American as a group in the decision (Johansen, 1998, p. 8). The ruling made clear that the government was not looking for assimilation (Johansen, 1998, p. 8), rather eradication was the goal.

In order to eradicate the Native American identity, it would follow, then, that it was necessary to eradicate the culture that bound Native Americans to their traditions and to one another as a force of opposition to European heritage; that the focus would rest upon eradicating those distinctly different cultural differences, and to indoctrinate the Native Americans into traditional European customs and traditions. This could not be accomplished at the adult level, but could evolve if it involved an aggressive program of reprogramming Native American children. By 1870, the forcible subjugation of children into boarding schools away from their families and cultural groups (Johansen, 1998, p. 8) was a means by which the effort to eradicate the Native American identity was being pursued.

Nevertheless, as early as 1819, the U.S. Congress passed an act to establish a "civilization fund" for Indians, notably for the construction of schools by benevolent societies. The act urged that the schools be used to introduce among the Indians "habits and arts of civilization, including "agriculture... and... teaching their children in reading, writing, and arithmetic." The act asserted that its provisions would be "for the purpose of providing against the further decline and final extinction of the Indian tribes." Congress allotted $10,000 for the fund's first year (Johansen, 1998, p. 23)."

Still, Americans and American lawmakers perceived their efforts as "assimilation," and those efforts continue in that way today as lawmakers continue to create laws by which Native Americans are governed as a people separate and apart from America as a whole, but are nonetheless compelled to abide by and adopt American laws whether or not those laws stand in opposition to their religious or cultural traditions. Researcher and historian Elliott Johansen (1998) cites the case of a Winnebago Native American, who, as a child, was forced to attend a school in the Midwest where the Native Americans would learn European Christian traditions, and where they were punished for speaking in their Native American language (p. 24). As much as one might like to think that was something that happened in the 19th century, it was actually a case taken from the 20th century, in 1940. The effort to eradicate the Native American identity is one that has never been abandoned.

Today, the effort to bring about changes in the Native American community remains consistent with the goals of lawmakers and law enforcement officials. Researchers Marianne O. Nielsen and Robert a. Silverman (1996) found that in 1955, 50% of the young girls confined in the South Dakota Training School were Native American children (p. 82). The researchers go on to report that in 1969, nine percent of the youth population in Minnesota's juvenile correctional facilities was Native American, which caused the researchers to have many questions, because only one percent of Minnesota's total population is Native American (p. 82). Disproportionate numbers of Native American youths were found by the researchers to be held within residential facilities in other states in more recent years. The figures are reflected in the table below, and arise out of information reported by the Corrections Yearbook, Juvenile Corrections, G and C. Camp, 1991.

Confinement of Native American Youth in Selected Juvenile Residential Facilities, 1990

State

Number of Confined Youth

Number of Native American

Confined Youth

Percent of Native Americans

Alaska

Arizona

Minnesota

Montana

Nebraska

New Mexico

North Dakota

Oregon

South Dakota

Washington

Wisconsin

Adapted from the Corrections Yearbook -- Juvenile Corrections, G. And C. Camp (1991). (Nielsen and Silverman, 1996, p. 82)

Nielsen and Silverman acknowledge the role of Native American law enforcement personnel on reservations and who provide legal counseling and probation services (p. 17). However, they acknowledge, too, that in the United States and in Canada, where there is a large indigenous population, both governments place limitations on the tribal courts and legal processes that would, without those limitations, give the tribal systems complete control over their legal systems and people (p. 17). In the American Navajo tribal courts, for example, only cases involving tribal law on a misdemeanor level can be heard by tribal authorities (p. 17). The American system has used the tribal courts to impose a "Western" sense of justice on tribal youths (p. 46).

During the 180s and 1990s, there was a move away from institutionalized juvenile justice programs that addressed the problems of large numbers juveniles, including Native Americans, in a unique setting and using specialized approaches (Jensen and Howard, 1998, p. 324).

Juvenile justice policies emphasizing decriminalization and deinstitutionalization were adopted by all states between 1970 and 1985. Public policy encouraged rehabilitation and individualized treatment over punishment and incarceration of offenders. Although several studies found that community-based treatment reduced recidivism and did not pose a significant threat to public safety (Coates, Miller, & Ohlin, 1982; Krisberg, Austin, Joe, & Steele, 1988), widespread application of community-based and other rehabilitative interventions was short-lived. Changes in the nature of youth crime and in the political climate during the mid-1980s signaled a return to policies of punishment and criminalization (Jensen and Howard, 1998, p. 324)."

Just as federal programs were downsizing, the problems associated with drugs and alcohol amongst teens was increasing, especially with the availability of drugs like methamphetamines during the 1990s (Jensen and Howard, 1998, p. 324). What this meant to the juvenile justice system, and especially the tribal systems, was fewer federally funded juvenile programs that would prevent the young offenders from becoming part of the adult justice system. In the Native American communities, there was already a tendency to move away from tribal systems as independent systems of justice, and towards uniform overall American system. So this meant that programs aimed at intervening in juvenile behavior and preempting violent criminal activity amongst Native American juveniles could, under existing juvenile laws, result in young Native Americans being removed from their homes and family settings for certain offenses before those offenses could escalate into more serious behaviors.

What has been discussed here is that Native American children have long been removed from their families for preemptive legal reasons. Those reasons for removal were used as a means to achieve the government's greater goal of eradicating their cultural identity. That same authority exercised by the government has become imbedded in the juvenile justice policy towards Native American juveniles.