Wabanaki Legal News, January 2005
By J. Peter Sabonis, Esq.
It is commonly observed that there are two justice systems in America: one for the rich and another one for everybody else.
Usually, the observation means that the rich are able to afford skilled lawyers, who are able to use their talents to help their clients avoid jail or hard time. But lawyers alone do not explain the different systems. Throughout the country, our courts and jails are filled with more poor minorities than higher-class whites. Some would have us think this is simply because minorities break the law more often. But this is simply not true.
Take drug use for instance. A study by the Substance Abuse and Mental Health Services Administration (SAMHSA) of the U.S. Department of Health and Human Services revealed that in 1998, there were almost five times as many white users of illegal drugs as there were black users. Yet, a black person was twice as likely to get arrested for drug use than a white.
In Maine, Native Americans are "over-represented" in prison and jails. This means that while Native Americans make up 0.6% of Maine's population overall, they make up 2.4% of the prison and jail population. A 2000 report by the Coalition for Juvenile Justice showed that American Indian youths represent 1% of the youth population in the United States, but are arrested at double and triple the rate of other youths.
Higher arrest and incarceration rates have a lot to do with where and when the offense took place. And often that has to do with income. Minorities are more frequently poorer than whites and more likely to live in urban areas where arrest rates are generally higher. But it's more than that. Arrest rates simply show who's watching whom. And history has shown that whites, regardless of their attempts to be unbiased or objective, will be more observant about the way minorities behave, and will craft their law enforcement systems (whether intentionally or not) along the same lines. As a white person (and a lawyer) myself, this gets to why the very idea of a Tribal Juvenile Justice system holds so much promise. A criminal justice system that is run by a Tribe, from street law enforcement up to the courtroom, could be the one place in America where justice operates on an even playing field, a place where folks don't get arrested, jailed, and sentenced simply because they happened to be the wrong color at the wrong time.
But it's even more than that. Tribal courts have the freedom to be more creative in holding the person responsible to the community, and engaging in restorative justice efforts that can take criminal deviance and use it as an avenue back to community wholeness.
The Jurisdiction and Power of Juvenile Tribal Court
In the compromises worked out under the Indian Claims Settlement act, the Penobscot and Passamaquoddy Tribes were given what is called "exclusive jurisdiction" in certain court matters. This means that the Tribal court is (usually) the only place where the case can be heard.
This exclusive jurisdiction was given to the Tribal court in adult and juvenile areas, depending on the crime. Felonies--generally Murder, Class A, B, and C offenses (such as Gross Sexual Assault, Burglary, Arson, Robbery, Kidnapping), are sent to the state courts. Misdemeanors, however, such as criminal trespass, marijuana possession, some assaults, and thefts, are reserved for the Tribal court if the offense occurred in Tribal territory.
Tribal court is required to follow state laws in defining what the crime is and its sentence. This means, for instance, that a legal definition of criminal trespass (unauthorized entry into a dwelling) is set by the state, as are the sentencing limits (no more than one year in jail and/or no more than $2,000 in fines).
But within those sentencing limits, there is a lot of room for sentences that don't involve simply jail or fines. According to the state Juvenile code, a sentencing (or disposition) for a juvenile can involve any of the following:
- Participation in treatment services
- Community Service
- Supervised Work
- Commitment to the Department of Health and Human Services (foster care, group home, etc.)
- Long or short-term sentence to a Department of Corrections juvenile facility (Long Creek Detention Center or Mountain View Treatment Facility).
- Payment of a fine
- A "suspended" disposition and probation (with conditions).
A Tribal court can use these options alone, in combination, or can come up with other appropriate sentences. For instance, the Penobscot Nation Boys and Girls Club has created a program targeted to teens who have problems with the justice system. The Tribal court can, if it chooses, order a youth to participate in the program.
[Felonies that occur on Tribal land, or any criminal behavior off the land are handled by the state Juvenile Justice system. (See the companion article on the State Juvenile Justice system for information.)]
In short, the Tribal Juvenile Court enforces the law set by the state and disposes of cases within the "canal" of authority "dug" by the state. Yet, according to state law, the proceedings in Tribal Court are considered "tribal law." This means that the Tribal Juvenile Court system can demonstrate and reflect the values, aspirations, and ideas of justice and accountability of the Tribe itself. Whether it does that or not is up to the community.
This means not only holding juveniles accountable to the community for their actions. It also involves holding the community accountable for effectively delivering the services ordered by the Tribal court. All of this involves a community awareness of the Tribal Juvenile Court system, its importance, and its need for resources and attention. The Wabanaki Legal News hopes to play a role in facilitating this process, with a regular column on Tribal Juvenile Justice. Look for it in coming issues.