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Reflection: Juvenile (in)Justice for Indigenous Youth

By: Brittany Dutton-Leyda

I spent last summer interning at the United States Attorney’s Office for the District of New Mexico. I have always had an interest in criminal law, specifically defense, but I couldn’t turn down the opportunity to experience complex criminal law in a federal setting. I figured it would give me an opportunity to make sure prosecution wasn’t for me. Although the experience didn’t turn me into a future prosecutor, it did give me a deep respect for the noble work the Assistant U.S. Attorneys do every day. I was impressed and thankful to see good, ethical prosecutors working diligently to help victims of horrible crimes. However, I was extremely disheartened to learn of how damaging federal laws can be when applied to Indigenous people, especially juveniles.

The Major Crimes Act provides the federal government jurisdiction over major felony crimes committed on tribal lands and along with the Juvenile Delinquency Act,[1] works to prevent tribes from adjudicating certain juvenile felony cases through tribal court. Accordingly, because of federal jurisdiction and these laws, a disproportionate number of Indigenous youth end up in the federal system and prisons. Even though the Indigenous population in the United States is only 1.5% of the total population, the disproportionate number of federally imprisoned Native American youth is staggering.[2] “Approximately 61% of youthful offenders incarcerated in the Federal Prisons are Native Americans . . .The high percentage is due to sentencing under the FJDA, Major Crimes Act, and General Crimes Act. These Acts subject youthful offenders to federal prosecution and federal criminal sentencing guidelines instead of tribal sentencing.”[3]

I witnessed this disparity firsthand when interning at the U.S. Attorney’s Office. I was assigned to Indian Country and was allowed to sit in on an armed robbery trial of a teenage Native American who was a first time offender and facing several years in federal prison.[4] I was shocked to hear that someone so young that hadn’t committed any other crimes was facing such a long sentence. When I asked why that was, I was informed that it was due to federal jurisdiction and federal laws that administer these harsh sentences disproportionately to Indigenous people. It made me sad and angry to hear that simply because of this young man’s status as a federally recognized tribal member, he was facing a sentence that was essentially three times longer than he would have received through state or tribal court.

Even in cases that potentially could or are adjudicated through tribal courts, federal jurisdiction, federal laws, and federal courts often take over and replace tribal court rulings, severely undermining tribal sovereignty. This is often motivated by political factors that federal actors argue is in support of tribal sovereignty but is actually rooted in racism, the patriarchy, power, and control. An example of this is in United States v. Male Juvenile, in which a fourteen-year-old Indigenous boy was sentenced in Fort Peck tribal youth court to 180 days for theft and burglary, but was then retried in federal court and sentenced instead to twenty four months in federal prison.[5] The court reasoned that because “the [Federal Juvenile Delinquency] Act limits the maximum term of official detention to the lesser of the period until the juvenile becomes 21 or the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult,” and considering the maximum sentence for burglary in Montana is twenty years, the sentence of two years was appropriate in this case.[6]

The fundamental problem with this type of reasoning, along with the fact that it extremely disadvantages Native American youth, is that it completely lacks any consideration for cultural methods of restorative justice which many tribes are rooted in. “American Indians draw strength from their traditions, cultures, kinship, other relationships, and ceremonies. . .Some tribes have focused their efforts to develop culturally appropriate healing methods for their youth. Since tribal youth offenders in the juvenile justice system have demonstrated better outcomes when they receive targeted, culturally-and community-based services.”[7]

Even the judiciary in New Mexico have expressed concerns about the problems with federal laws, federal jurisdiction, and how they negatively impact Native American youth. In United States v. Jerry Paul C., an Indigenous juvenile

…was convicted and sentenced as an adult on two counts of armed robbery with a firearm enhancement; conspiracy to commit armed robbery; and false imprisonment. He was sentenced to a prison term of ten years (one hundred twenty months). Under the Federal Sentencing Guidelines, he would have been subject to a sentence of approximately eighty-seven to one hundred and eight months, plus sixty consecutive months for use of a firearm during a crime of violence.[8]

The court recognized that Native American juveniles tried as adults in federal court were unable to earn “good time” at the same rate as juveniles in state court, causing them to “serve a substantially larger percentage of their originally longer sentences than non-Indian youths tried as adults in the State courts.”[9] Furthermore, the court acknowledged that this disparity is “because transfer to adult status in the federal system exposes them to far graver consequences than their non-Indian counterparts in the state system. This is especially ironic as one of the goals of the Federal Sentencing Guidelines was to address minority defendants receiv[ing] longer sentences than their White counterparts.”[10]

Unfortunately in the case of Jerry Paul C., and as in most of these federal juvenile cases, the court’s hands were tied due to these federal laws. Although the court was willing to acknowledge the severe consequences of this disparity, the court ultimately concluded that “the possibility of a disproportionately long, federal prison sentence is largely the unfortunate product of Jerry Paul C.’s jurisdictional status as a Native American.”[11]

Although the case I witnessed that sparked this outrage in me was not technically a juvenile case, it was the case of a young man who was facing the same issue due to federal jurisdiction, federal laws, and federal sentencing because of his status as a Native American. Thankfully in his case, he was acquitted of the charges and now has the opportunity at a second chance in life outside of the confinement of the walls of federal prison.

Who, if anyone, deserves a second chance at rehabilitation more than youth? Why should youth that don’t live on tribal lands be afforded a greater opportunity for rehabilitation than Indigenous juveniles? I certainly don’t know what the answer to this problem is, but I do know that a call to Congress in addressing and reforming federal laws and sentencing that severely disadvantage Native American youth could be a start in rectifying this gross injustice for Indigenous juveniles.


[1] 18 U.S.C. § 1153; 18 U.S.C. § 5031.

[2] LaTanya Gabaldon-Cochran, Federal and Tribal Court Jurisdiction Over Youthful Offenders in Indian Country, Tribal Judicial Institute, https://law.und.edu/npilc/tji/_files/docs/monograph-youthful-offenders.pdf.

[3] Id.

[4] United States v. Thompson, No. CR 19-1610-MV-4, 2021 WL 2530993, at *3 (D.N.M. June 22, 2021), as amended (June 22, 2021).

[5] Id. at 1021.

[6] Id. at 1021.

[7] National Congress of American Indians, Tribal Juvenile Justice, https://www.ncai.org/policy-issues/tribal-governance/public-safety-and-justice/Office_of_Juvenile_Justice_and_Dequincy_Prevention_Literature_Review_Tribal_Youth_in_the_Juvenile_Justice_System_-2016-.pdf, (last visited Nov. 17, 2021).

[8] United States v. Jerry Paul C., 929 F. Supp. 1406, 1408 (D.N.M. 1996).

[9] Id.

[10] Id.

[11] Id. at 1411.

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Commentary Events ICRA Symposium Indigenous Law Opinion

Reflections: FedBar Indian Law Conference and ICRA Symposium

I attended the Federal Bar Association Annual Indian Law Conference. At the dinner reception, I was placed next a woman tribal leader. During our conversation, she asked where I was from and, when she found out that I attend UNM School of Law, if I had attended the 50th ICRA symposium. We then began a deep conversation about tribal membership. I think it is interesting that people outside of tribal communities ask me, how much Indian I am. I feel strange replying that I am full-blooded. To me the status of being full-blooded is not as significant as to who my clans are and who I am related to. The tribal leader and I lamented over how difficult it is to change the idea of blood quantum. It is understandable most changes to our tribes’ internal self-determination has created more challenges and limited our ability to enact our inherent sovereignty. The issue of blood quantum even affects issues of health. Some Navajo children living on the Navajo Nation do not qualify for Indian Health Services (IHS) because they do not meet the eligible blood quantum levels. To enroll for IHS services, an individual is required to present a Certificate of Indian Blood. This leaves a population of non-member reservation residents that do not have access to health services. Having a lack of access to resources creates gaps and vulnerable populations. Asking for change is a challenge but it is necessary.

By Ernestine Chaco, Staff

Ernestine is Diné (Navajo) from Tsé’íí’ahi (Standing Rock), N.M. She attended University of California-Davis School of Medicine and plans to be an emergency medicine physician. During her 4th year of medical school, she took a leave of absence to pursue her passion of understanding the intersection between Federal Indian Law and health issues at UNM School of Law. She is currently a second-year law student.  Ernestine holds a Bachelor’s Degree in Chemistry from Swarthmore College and a Master’s Degree in Medical Sciences from Indiana University-Purdue University Indianapolis.