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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 16-070

General Memorandum 16-070
Bureau of Indian Affairs Publishes Updated Model Indian Juvenile Code

On October 20, 2016, the Bureau of Indian Affairs (BIA) published a final, updated Model Indian Juvenile Code (MIJC). The MIJC is an important resource for tribes that implement their own codes, yet it had not been updated since it was first published in 1988. The BIA states that the 2016 MIJC, which was developed in consultation with tribal governments, is intended to be comprehensive as well as flexible, encouraging alternatives to standard services and protecting the fundamental rights of children and their parents and guardians. A copy of the updated code is available at: http://www.bia.gov/cs/groups/xojs/documents/document/idc2-047015.pdf.

The original MIJC was developed pursuant to PL 99-570, which required the Secretary of the Interior to develop a Model Indian Juvenile Code consistent with the Juvenile Justice and Delinquency Prevention Act of 1974. This code was additionally required to include provisions relating to cases involving Native youth arrested or detained for alcohol or drug offenses. Since the development of the 1988 MIJC, there have been significant changes in law and policy, including enactment of the Tribal Law and Order Act, PL 111-211, and research demonstrating the ineffectiveness or harmful effects of punitive juvenile justice practices.

The updates to the 2016 MIJC mark a distinct shift in the model code's approach to juvenile justice, stating that "researchers, youth advocates, and policy makers have … urged a move away from punitive models of juvenile justice, in favor of more restorative approaches that seek to maintain accountability and community safety while focusing on the rehabilitation of children who have committed delinquent acts."

The 2016 MIJC focuses on the three areas of juvenile delinquency, truancy, and child-in-need services. Some key features of the 2016 MIJC are:

• A consistent and rigorous preference for alternatives to secure detention facilities, which are facilities that physically restrict movement and activities, using detention only as a last resort;
• Encouraging rehabilitative and restorative measures, including traditional and customary practices, in place of fines and detention;
• Distinguishing between delinquency and need for services;
• Encouraging efforts to coordinate services;
• Incorporating an ability to divert out of the formal process at each decision point;
• Distinguishing juvenile processes from criminal proceedings, including barring transfer to adult courts;
• Requiring children be represented by a juvenile advocate attorney in juvenile justice proceedings;
• Requiring all juvenile court staff and practitioners to be trained in and implement trauma-informed practices; and
• Establishing law enforcement, court, and detention procedures that protect children's fundamental rights.

The 2016 MIJC indicates that although it provides a detailed statutory framework, the expectation is that tribes will not adopt its provisions wholesale. Rather, the MIJC encourages tribes to adapt provisions to suit their unique needs and priorities as well as their own customs and traditions.

Significantly, the Justice and Delinquency Prevention Act, which paved the way for the initial Model Indian Juvenile Code, is up for reauthorization. On September 22, 2016, the House passed the Supporting Youth Opportunity and Preventing Delinquency Act of 2016, HR 5963. If enacted, the bill would implement a similar approach to juvenile justice reform as embraced by the 2016 MIJC and would also expand tribal access to funding under that Act. The Senate Judiciary Committee approved a different version of a Juvenile Justice and Delinquency Prevention reauthorization bill, S 1169, in December 2015 but no further action has taken place on it. It is unlikely Congress will be able to finish work on juvenile justice legislation in the last few weeks of the current (114th) Congress, thus leaving the task to the next (115th) Congress.

Please let us know if we can provide additional information or assistance regarding the Model Indian Juvenile Code or related legislation.

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Inquiries may be directed to:
Akilah Kinnison (akinnison@hobbsstraus.com)
Karen Funk (kfunk@hobbsstraus.com)

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