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Juvenile transfer agreement nears completion
It's been in the works for several years, but last month it became official: the Circuit Court of the 22nd Judicial District may transfer jurisdiction for some juvenile delinquency cases involving Warm Springs youth to Warm Springs Tribal Court.
The agreement, which has incited some controversy, was signed by Chief Justice Wallace Carson of the Oregon Supreme Court, the presiding judge of the 22nd Judicial District, and the chairman of the Tribal Council. It spells out the conditions which must be met before such a transfer can occur.
"When a youth commits a delinquent act in a county that is different from the one he or she lives in, it is commonplace to transfer the case to the county where the youth lives," Presiding Circuit Court Judge George Neilson explained.
"Historically, we have had no authority to transfer a case from our court to a tribal court," said Neilson. "The statute allowed the chief justice, the presiding judge, and the Tribal Council to enter into an agreement for such transfers to occur."
Under conditions of the transfer, the youth must be an enrolled member of a federally recognized Indian tribe; the youth must live on the Warm Springs Reservation; the delinquent act must have taken place off the reservation, but in Jefferson County; and the presiding judge must waive jurisdiction.
"A qualifying offense shall include all noncriminal violations (excluding traffic offenses), any nonperson misdemeanor offense, and such other offense as all parties to the proceeding stipulate," the agreement reads.
The type of delinquent conduct that could be transferred includes criminal mischief, misdemeanor theft, disorderly conduct, harassment, criminal trespass, or minor in possession of alcohol or less than an ounce of marijuana.
"The primary purpose is to develop a juvenile justice system that makes the community safe and best serves the needs of the youth and the family," said Neilson.
Participants in the juvenile justice process -- from school officials, to the juvenile justice department, to the district attorney's office, to tribal officials -- all agree with the theory of the agreement, but disagree on certain points.
"It's a judicial system decision," said Madras High School Principal Gary Carlton, "however, the relationship we have with our local juvenile system in Jefferson County has been very positive, which allows us to be very aware of students who might be having problems."
Carlton hopes that the schools will be able to retain that awareness. "As long as we could somehow ensure that we could keep open communication with Warm Springs, that should work just fine," he said. "It's important safetywise for us to be aware of students who might be having difficulty that either places them in potential jeopardy, or places other students in jeopardy."
Open communication could violate tribal codes on dealing with juveniles, and potentially violate the sovereignty of the tribes, according to Chief Tribal Prosecutor Dereke Tasympt.
"Defenders down here are going to have a heyday if tribal codes aren't met," Tasympt said. "The tribes have maintained a closed door on our juveniles; I can't even share that information with other tribal departments. We're opening a door to our tribal sovereignty, and we're being told to stand back. It doesn't show good faith."
As an example, Tasympt said that when a Native American youth commits a crime, "we can't interview them without the consent of the guardian. We'll hold them until a guardian comes."
Outside the reservation, there is no requirement to obtain parental consent before a juvenile is interviewed by police agencies.
Once the youth is taken into custody in Warm Springs, juvenile code specifies that the preliminary hearing be held within a day. If the youth is taken into custody and then released, the preliminary hearing must take place within five days, Tasympt said.
"The way it's written now, I would implore my people to say no," Tasympt said of the agreement. "I don't think it's in the best interest of the community. I'm disappointed that we weren't consulted further."
The county's chief prosecutor, District Attorney Peter Deuel, sees the issue from another angle. "Historically, we've had no access to their records because of sovereignty. It will limit our ability to understand the history of any youth that comes into contact with the juvenile justice system," he said.
The Jefferson County Juvenile Community Justice Division is currently handling about 245 cases, of which 111 -- or about 45 percent -- are Native American youths, according to Matthew Birnie, new county administrator and director of Community Justice since 2001.
"We have a statutory responsibility to report to the schools every youth that is under our formal supervision every month," said Birnie. "If we don't have supervision of the case, we're not going to be making reports on the case."
Birnie is concerned that in some instances, transferring cases might reduce a youth's access to services, and limit the department's ability to supervise the youth while the youth is off the reservation in Jefferson County.
"We have developed a very strong working relationship with the agencies that serve youth on the reservation and the Native American youth under our supervision continue to have access to tribal resources while gaining access to county and state resources," Birnie said.
Nevertheless, Bernie agrees that some cases are suitable for transfer. "There are cases that would be appropriate to transfer and we're willing to help identify those and participate in the process."
Neilson said that he and the other judges of the 22nd district, Dan Ahern and Gary Thompson, would transfer only a handful of cases to begin with. "We may look for between five and 10 for the first quarter," he said.
"This is an experimental program with communication safeguards built in which allow the Jefferson County courts of the 22nd Judicial District to transfer cases to Warm Springs Tribal Court, and allows courts to communicate actively about cases," Neilson said.
Deuel also has concerns about the rights of victims. "There are certain things that are going to be important from the standpoint of the prosecutor for the county," he said, "-- to ensure that there is appropriate accountability for delinquent conduct committed in our county, but off the reservation, and that the victim's interests and rights are protected and acknowledged."
The victim's rights include the right to attend hearings, the right to have information on the proceedings, and the right to request restitution when damages are suffered, Deuel said. "My interest is in doing what I can to see that the victims' rights are protected."
Tribal Judge Lola Sohappy, who helped draft the agreement, said that when the parties affected by the agreement met last Friday, a number of questions came up, including the question of victims' rights.
"We can work those things out," she said. "It will be on a case-by-case basis. Working together -- that's the main goal -- making sure that kids are held accountable for their actions, and get the help they need to better themselves."
The various parties to the agreement will meet again Dec. 10, to work on finalizing the agreement, which is only in effect until Jan. 1, 2006.
In the meantime, county and tribal interests will have the opportunity to determine the effectiveness of the agreement.
"There are quarterly meetings built into the agreement," said Neilson. "Representatives will meet and discuss the progress of the case that has been transferred. We hope those meetings will be used to overcome any barriers encountered, and to build strong and constructive relationships."