Two years ago, Judge Donovan Foughty raised a question at a North Dakota tribal relations conference.
"I said, I've been sitting on the bench for many, many years, and why is it an Indian child that has some criminal troubles, has some issues with delinquency -- why is it they can't get the same level of services that I can get them through my juvenile court as opposed to the tribal court?" said the longtime state district court judge in Devils Lake.
Some state lawmakers and Gov. Doug Burgum were there and listening, he said. The 2019 Legislature, responding to a push by advocates, passed a bill allowing for tribal juvenile services cooperative agreements under a pilot program. A similar bill had failed in 2017, as some state representatives questioned costs and said such agreements could happen without the Legislature's approval.
In late 2019, the Spirit Lake Nation signed the first agreement with officials of North Dakota's Indian Affairs Commission, Supreme Court and Division of Juvenile Services.
"This is really going to be so helpful for our people," Tribal Chairwoman Peggy Cavanaugh said. "This is one of the key opportunities for us."
'It's too important'
The agreement offers "more hope" for the tribe's children, especially those who have family members with drug addiction, Cavanaugh said.
Spirit Lake Nation Tribal Court services are "very limited," she and Tribal Court Chief Judge Joe Vetsch said. Vetsch attributed the limited services to a lack of funding and resources.
"One of the major issues we have is that our children currently receive very few, if any, services if they end up having to be incarcerated," he said.
Spirit Lake's Tribal Court has mental health, chemical dependency and behavioral health counseling services for juveniles, he said. But the state offers much more.
Probation is the most common disposition for the tribe's juveniles, but incarceration is more common than in the state, he said.
"The lack of other services probably leads to a faster escalation of the underlying problem behavior and at some point, the last resort becomes a reality," Vetsch said.
Lisa Bjergaard, director of the Division of Juvenile Services within North Dakota's Department of Corrections and Rehabilitation, said Native youth are committed to state juvenile corrections custody at about three times the rate of youth who identify as white.
The federal Bureau of Indian Affairs runs a juvenile detention center on the Standing Rock Reservation in North Dakota.
Under Spirit Lake's state agreement, tribal juveniles also could be ordered to the custody of the Division of Juvenile Services, up to and including the Youth Correctional Center in Mandan.
Commitments to custody are rare -- about 3% of all state dispositions for delinquent and unruly youth in 2018, according to that year's juvenile court report.
Most state juveniles are informally adjudicated and never see a courtroom.
State Court Administrator Sally Holewa described the range of state juvenile services, including court service officers' supervision and guidance; cognitive and behavioral change classes, even ones unique for girls; and other services through contracted providers who offer programs such as alcohol awareness.
Vetsch said services the tribe could access include risk assessments, a mentoring program for children who have an incarcerated parent, juvenile drug court, courtesy probation supervision, cultural liaisons and in-home family therapy, among others.
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Bjergaard said proponents of the 2019 bill assured the Legislature "we would do nothing that exceeded our current capacity" for services.
Holewa said "it shouldn't matter who pays" for services given the importance of improving children's lives and outcomes.
While the state is bearing the services' costs, Holewa noted the agreement outlines "resources, as available."
The state may limit the number of tribal juveniles it accepts for services. A report also is due to lawmakers before July 1 on the results of the agreement.
"We should be looking at what do these children need and not worrying about whether somebody's paying more or less or where the check is coming from," Holewa said. "It's too important to leave to money being the final decider."
'Trying to keep kids in the community'
Spirit Lake has just started to access state services, Foughty said. State juvenile court and corrections officers will meet on a monthly basis to discuss and develop case plans for delinquent tribal juveniles, he said.
"We're trying to keep kids in the community and out of detention facilities," Foughty said. "That's our effort. We're trying to get services to them that we can deal with in the community."
Vetsch estimated the agreement could benefit four or five Spirit Lake youth a month, or 50 to 60 juveniles the next year.
Bjergaard, North Dakota's top juvenile corrections official, was a leading force behind the 2019 bill. She said it was important to include the Legislature, even as some lawmakers said the agreements could happen regardless.
"We just want everybody to get behind the idea of figuring out a way to make this system have some parity," Bjergaard recalled telling lawmakers.
It's also important to recognize that tribal courts still will be the venue to adjudicate tribal juveniles, she said.
"It's a separate process in terms of the tribes feel very strongly that these are their children and they want to continue to own that," Bjergaard said.
It remains to be seen if any other North Dakota tribes will sign agreements like Spirit Lake's. Officials are hopeful.
North Dakota Indian Affairs Commission Executive Director Scott Davis said there are elements of jurisdiction and tribal sovereignty involved, but the pilot "certainly opened some eyes" for tribes about how they can utilize services from the state.
"Benefiting the kids, benefiting the adolescents, benefiting the adjudicated youth -- that's what this is about," he said.
The pilot period ends after July 2021. Bjergaard said the parties involved wanted to build at least one agreement and to "really get a better picture here of what it is we would need to be able to better provide all juvenile justice-involved youth across the state," to further engage state lawmakers.
Davis said the state's Tribal Taxation Issues Committee, chaired by Burgum, could address potential issues before the 2021 Legislature. The committee handles more than just tax issues, he said.
Bjergaard "absolutely" agrees with Spirit Lake's tribal chairwoman that the new agreement offers hope for youth.
"I think we want to say something about all at-risk youth in North Dakota deserving our best efforts to provide them with the care and services they need to thrive and grow, and this is a vehicle for beginning some of that work," Bjergaard said. "And we look forward to rich and robust conversations as we move along this path."
Reach Jack Dura at 701-250-8225 or firstname.lastname@example.org.