NATIVE YOUTH & JUVENILE INJUSTICE IN SOUTH DAKOTA.

• Author: Rolnick, Addie C.

1. INTRODUCTION

   Three themes are critically important to understanding the experience of Native youth in the juvenile justice system: racism, (1) jurisdiction, and tribal sovereignty. Racial disparities are a widely acknowledged problem in juvenile justice. (2) While public conversation most often focuses on the over-representation and over-incarceration of African American youth, (3) Native also youth face significant disparities in places where they live in large enough numbers to register in statistical analyses. (4) These disparities do not exist in a vacuum; they occur most starkly in "border town" communities--places where Indian reservations abut predominantly white communities and where the most salient racial divide is white/Indian. (5)

   Jurisdiction is significant because of the web of rules affecting juvenile delinquency jurisdiction on reservations. Native youth may live on reservations or in non-reservation cities and towns. Native children may therefore end up in the tribal, state, or federal justice systems based on the jurisdictional rules that apply to each place. (6) The task of locating Native youth amid overlapping systems is difficult and it is even more challenging to propose effective reforms to improve how Native youth are treated in these systems. In particular, young people who commit offenses on South Dakota reservations are subject to federal legislative, administrative, and prosecutorial power. While juvenile delinquency is typically a local matter, federal decision-makers, sometimes distant ones, have an outsize effect on how juvenile justice is administered to Native youth living on these reservations.

   Finally, tribal sovereignty is important because tribal authority over juvenile justice strengthens and formalizes the connection between children and their communities, and permits tribes to craft systems that meet the unique needs of their youth. (7) The lesson of child welfare demonstrates that this connection and flexibility are important factors in improving children's lives and ensuring that tribes survive as sovereign governments. (8)

   This essay uses these three themes of racism, jurisdiction, and tribal sovereignty to provide a snapshot of the juvenile justice system in South Dakota as it impacts Native youth. First, it describes the tribal juvenile justice systems in the state. Tribal systems should rightfully play a central role handling Native youth offenders, but they are underfunded and may not therefore be sufficiently responsive to young offenders' needs. Second, this essay examines the impact of federal power over youth on reservations in South Dakota. Specifically, federal juvenile jurisdiction, as well as federal financial and administrative power, can interfere with tribal jurisdiction, complicating the possible consequences and protections that should be available to Native youth. Finally, the essay describes the state and county juvenile justice system in South Dakota, where Native youth have long made up a disproportionate share of children who are arrested and incarcerated.

   This essay has two purposes. The first is to sketch a more complete picture of the various juvenile justice systems that affect Native youth in South Dakota for academics and policymakers. The existing literature lacks even a basic description of these systems and this essay will attempt to reveal where further inquiry and updated research is needed.

   The essay's second purpose is to make the case that the situation of Native juvenile offenders cannot be improved without simultaneous attention to racism, jurisdiction, and tribal sovereignty. Complicated jurisdiction rules frustrate efforts to count Native youth in order to measure racial disparities, but these rules are also valuable because they recognize and empower tribal governments. Racism explains why Native people are under federal and state jurisdiction, and is also a significant reason why tribal juvenile systems have been largely excluded from modern reform efforts. Tribal sovereignty is a critical tool to counteract racism and protect Native youth, but sovereignty can also mean that Native youth under tribal jurisdiction are outside of the reach of nationwide reform efforts. This essay illustrates how careful consideration of the delicate interplay between these three forces is essential to helping Native youth in South Dakota and throughout the country.

2. TRIBAL SOVEREIGNTY: MAPPING TRIBAL SYSTEMS

   South Dakota sits on the ancestral territory of the Oceti Sakowin nation, also called the Great Sioux Nation. (9) The history of tribal-federal relations in South Dakota is usually framed as a story of betrayal and loss. Throughout the 1700s and 1800s, the United States engaged in a string of armed conflicts, and signed and broke several treaties with the Great Sioux Nation. (10) With each treaty, the nation ceded additional swaths of its territory in return for a promise that the remaining territory would be protected. In each case, that promise was not kept.

   Perhaps the most significant abrogation occurred when the United States violated the 1868 Treaty of Fort Laramie by authorizing and encouraging survey, excavation, and settlement of the Black Hills: sacred Sioux land reserved to the nation under the treaty. (11) Although the United States Supreme Court held that the federal government violated the treaty and ordered it to pay a record-breaking settlement, (12) the lost land was never returned. The tribes continue to advocate for restoration of their land, and the settlement money has remained untouched because to accept it would signify tribal agreement to the loss of land. (13)

   Although it is the most famous, the taking of the Black Hills is hardly the only significant loss of Sioux land against the will of its Native occupants. On the eve of South Dakota statehood, the Sioux Act of 1889 broke up the Great Sioux reservation, over the objections of the people, into six smaller areas and reduced its overall size by nine million acres. (14) In the 1950s, the federal government took and flooded Sioux lands to build several dams as part of the Pick-Sloan initiative. (15) Most recently state and federal governments authorized construction of the Dakota Access pipeline across the Missouri River just upstream from the Standing Rock and Cheyenne River reservations and through territory to which the Sioux claim treaty rights. (16)

   Today, the Oceti Sakowin people in South Dakota are recognized by the federal government as nine different tribal entities, each with a separate reservation land base: Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, Oglala Sioux Tribe, Rosebud Sioux Tribe, Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, Lower Brule Sioux Tribe, Flandreau Santee Sioux Tribe, Yankton Sioux Reservation, and Crow Creek Sioux Reservation. (17) Five of these reservations (Standing Rock, Cheyenne River, Oglala/Pine Ridge, Rosebud, and Sisseton Wahpeton) comprise a land mass that spans one or more counties, with the tribal government as the primary provider of government services. These tribes are among the largest nationally in terms of both population and reservation acreage. (18)

   At least eight of the nine tribes operate their own juvenile courts, (19) along with various intervention and diversion programs for youth. (20) These courts have jurisdiction over any behavior by Indian youth defined as delinquent under tribal law, regardless of whether other governments have concurrent jurisdiction. (21) Rosebud, Oglala, and Cheyenne River operate their own juvenile incarceration facilities so that delinquent youth under tribal jurisdiction can be housed in the community near their families. Lower Brule, Standing Rock, and Yankton have on-reservation juvenile facilities that are currently closed. Sisseton Wahpeton, Crow Creek, and Flandreau do not have juvenile incarceration facilities on the reservation, so delinquent youth must be housed in another tribe's facility or in a county facility if incarceration is used at all. (22) Sisseton Wahpeton operates its own substance abuse treatment facility. Although the tribe provides inpatient services for adults only, it offers an extensive adolescent outpatient treatment program. (23)

   The Wanbli Wacon Tipi Wellness Center is located on the Rosebud reservation in Mission, South Dakota. The facility is operated and staffed by the tribal government pursuant to a contract with the Bureau of Indian Affairs ("BIA"). (24) It includes a thirty-six bed juvenile detention center, a day reporting school, and an eleven bed temporary holding area. (25) The Rosebud facility is sometimes cited as a model Indian country juvenile detention program because of its emphasis on cultural-appropriate programming, its embrace of Lakota values, its majority-Lakota staff, and its partnerships with tribal community organizations. (26) The degree and quality of programming available, however, can vary a great deal depending on federal funding, staff, volunteer availability, and the status of community partner organizations. (27)

   The Ki Yuksa O'Tipi Reintegration Center is a thirty-two-bed facility located on the Pine Ridge reservation in Kyle. (28) It is operated by the Oglala Sioux Tribe pursuant to a BIA contract. (29) In addition to bed space, it includes a separate holding area and space for programming. (30) The Cheyenne River Sioux Juvenile Detention Center is a ten-bed juvenile correctional facility in Eagle Butte. (31)

   Three reservation facilities are closed as of the publication of this essay. The Standing Rock Sioux Youth Services Center is in Fort Yates. (32) The tribe planned and built the eighteen-bed juvenile facility with the assistance of federal grants. (33) Construction was completed in 2011, (34) but it has not yet opened. (35) The Yankton Sioux Correctional Facility was planned and built in Wagner, South Dakota to include adult housing and ten juvenile beds in a separate...