Judge proposes giving tribal youths access to state juvenile services

BISMARCK - It's a running joke at the Ramsey County Courthouse in Devils Lake, just a short drive north of the Spirit Lake Indian Reservation. But it's no laughing matter to Judge Donovan Foughty, who shares the hypothetical scenario to drive hom...

BISMARCK – It’s a running joke at the Ramsey County Courthouse in Devils Lake, just a short drive north of the Spirit Lake Indian Reservation.

But it’s no laughing matter to Judge Donovan Foughty, who shares the hypothetical scenario to drive home the dearth of services for juveniles who run afoul of the law on the reservation.
“The joke is, this guy’s done all this stuff out at Spirit Lake, my juvenile supervisor tells the probation officer at Spirit Lake, ‘OK, bring him into Devils Lake, give him a brick, call the cops, tell him to throw the brick through the window so we can get some services for this kid.’ And that’s the sick joke,” he told a legislative committee in Bismarck last week.
Following Utah’s lead, Foughty is proposing that tribal courts be given access to the same juvenile services available through the state court system, including use of the state’s Youth Correctional Center in Mandan.
And, he said, the state should pick up the tab, a departure from past agreements that required tribes to reimburse the state.
“Every member of the Spirit Lake Nation … is also a citizen of the state of North Dakota,” he said.

‘All about prevention’
American Indians and Alaska natives made up an estimated 5.4 percent of North Dakota’s population last year, but they accounted 20.5 percent of the inmates in the state prison system in August, according to the U.S. Census Bureau and state Department of Corrections and Rehabilitation.
Scott Davis, executive director of the North Dakota Indian Affairs Commission, said officials believe the reservations are undercounted and that American Indians make up closer to 8 percent of the state’s population. Either way, they are overrepresented in the prison system.
Giving tribal courts access to the same juvenile services at the disposal of state district court judges, including mental and behavioral health services, could keep more tribal members out of prison in the long run, Davis said.
“It’s all about prevention,” he said.
Whether tribes would be willing to participate remains to be seen. Rep. Marvin Nelson, D-Rolla, who chairs the Tribal and State Relations Committee, suggested polling tribal leaders to gauge interest as the committee continues to study the idea, including whether it would require legislation.

Services, facilities lacking
Spirit Lake Tribe Chairwoman Myra Pearson predicted the idea will be well-received.
“I think there’s going to be (support),” she said.
The lack of a juvenile detention facility has been one of the biggest problems for Spirit Lake’s juvenile court, forcing the tribe to either go without detention or use state facilities that are generally ineffective in meeting the needs of troubled youths, Pearson said in written testimony to the committee.
Counseling and mentoring services, affordable drug and alcohol services and suicide prevention programs also are lacking, she said. The tribal court’s juvenile section has only five positions – one being the associate judge – and a probation section that Pearson described as nonexistent.
The tribe has continued a dialogue with the federal Bureau of Indian Affairs for decades, but “blatant deficiencies” in law enforcement and tribal justice remain unresolved, she said. Currently, the Spirit Lake tribe is sending juvenile delinquents to a detention facility at New Town on the Fort Berthold Reservation about 200 miles to the west, while the feds have placed others at facilities in Nevada, Utah and Washington state, she said.
“If you’re an Indian child in Indian country that’s committing delinquent acts, they get shipped away, a long distance away. That’s just the reality of it,” said Foughty, who serves in the Northeast Judicial District. “And they really don’t have an infrastructure back home to deal with that kid with regard to delinquency.”

‘We’ve got to just jump’
The state has a two-pronged system that begins with a juvenile office within the court system. The office has juvenile supervisors, probation officers and others whose goal is to use diversionary programs to keep the child from ever having to see a judge or referee and establish a criminal record, Foughty said.
When juveniles land in serious trouble, the judge can order them to the Youth Correctional Center, where they fall under the jurisdiction of the state Department of Corrections and Rehabilitation’s Division of Juvenile Services.
Lisa Bjergaard, the division director, said the Youth Correctional Center housed a daily average of about 80 juveniles this year and the division has about 200 youths under its custody on any given day.
“We will serve who comes,” she said, adding that the Division of Juvenile Services also utilizes the foster care system and supervises a lot of juveniles in their own homes.
Davis said the tribes would retain jurisdiction over their children, which historically has been a concern about working with outside agencies. Under the agreement between Utah’s Division of Youth Corrections and Ute Indian Tribe, the tribe makes the request to place delinquent youths in state facilities and programs and also decides when they will be released.
“I think it’s just a matter of how we can craft this legal document that the tribe first of all would entertain, and then obviously the bigger goal is to get services for that child for long-term,” Davis said.
Bjergaard said the last memorandum of understanding between a tribe and the state Division of Juvenile Services expired about five years ago because the tribe ran out of money to reimburse the state.
She said she couldn’t project what a new agreement would cost if the state were to cover the expenses, or how many kids would utilize the state services, largely because it hasn’t been done.
“At some point, I think we’ve got to just jump off the cliff and try something and do some things to take care of this population of North Dakota kids that need some support,” she said.

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