Research has shown that Native youth as a group 20 are especially vulnerable and traumatized. 21 Compared to other groups and compared to the general population, Native youth are especially vulnerable in almost every area identified as a risk factor for delinquency. 22 They are poorer. 23 Many live in communities with few social safety net services. 24 They are likely to face physical 25 and mental 26 health problems. They are more likely to drop out of school 27 and less likely to attain higher education. 28 They are likely to struggle with drug and alcohol use. 29 They are likely to contemplate and commit suicide. 30 They are likely to be abused 31 or to be victims of violent crime. 32 Native youth are particularly likely to be exposed to some form of violence in their lives, including being victims of child abuse, witnessing domestic violence, and witnessing interpersonal violence in their communities. 33 Present-day trauma compounds the impact of historical traumas that Native communities have experienced, including forced removal from homelands, targeted killing, wars, disease outbreaks, brutal boarding schools designed to forcibly disconnect Native children from their cultures, and family ties broken or damaged through adoption and relocation, 34 all of which places Native youth at a greater risk of involvement in the juvenile justice system. In spite of their incredible vulnerability, Native youth face overly harsh sanctions once they enter the legal system. They are overrepresented in foster care, 35 in arrests for certain offenses, 36 in petitions for status offenses, 37 especially liquor law violations, 38 in out-of-home delinquency placements, 39 in secure confinement, 40 and among youth prosecuted in the adult criminal system. 41 In states and counties with relatively large Native American populations, where Native incarceration can best be compared to the incarceration rates for youth of other races, the data reveal stark disparities. 42 For example, a 2014 report on the Wisconsin juvenile justice system found that Native youth are nearly twice as likely to be arrested and nearly twice as likely to be detained
Recognizing the links between childhood trauma and delinquency, many juvenile delinquency systems now emphasize trauma-informed care. This commentary examines established and emerging research on childhood trauma among American Indian and Alaska Native children and contrasts the development and implementation of “trauma-informed” approaches in state and tribal juvenile systems. It identifies three key innovations present in tribal models and calls for further research to identify best practices that work for Native children and tribal communities.
A full understanding of the roots of child separation must begin with Native children. This Article demonstrates how modern child welfare, delinquency, and education systems are rooted in the social control of indigenous children. It examines the experiences of Native girls in federal and state systems from the late 1800s to the mid1900s to show that, despite their ostensibly benevolent and separate purposes, these institutions were indistinguishable and interchangeable. They were simply differently styled mechanisms of forced assimilation, removal, discipline, and confinement. As the repeating nature of government intervention into the lives of Native children makes clear, renaming a system does not change its effect. The historical roots of these systems must be acknowledged, and the current systems must be abolished and replaced. To answer the question of what a nonpunitive, non-assimilative system would look like, this Article looks to tribal courts and indigenous justice systems. It points to specific examples of how Native communities have reshaped ideas about caring for and disciplining children, including traditional adoption, kinship care, wellness courts, family group conferencing, and a “best interests” standard that emphasizes the link between individual and collective well-being.
This chapter considers the major international law instruments that protect the rights of indigenous children. Indigenous children are situated at the intersection of children’s rights, indigenous peoples’ rights, and minority rights against discrimination. A robust corpus of international law has developed in each of these areas, but none were developed to protect indigenous children specifically. The chapter considers the rights protected by all three regimes as they apply to indigenous children, including analyses of the UN Declaration on the Rights of Indigenous Peoples, International Labor Organisation Convention No. 169, the UN Convention on the Rights of the Child, the International Convention on the Elimination of All Forms of Racial Discrimination, and the work of treaty bodies. It considers how rights protected by each regime interact, as well as the tensions and gaps that remain. It describes the potential breadth of international law protections and the limited evidence of implementation. It also discusses the interrelationship between collective and individual rights concepts for indigenous children.
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