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JUVENILE CODE DEVELOPMENT Tribal Judicial Institute UND School of Law Presenter: Michelle Rivard Parks, Associate Director Overview   Primary steps:   1) planning your code   2) developing/ drafting your code   3) implementing your code   To that end we will be discussing ….   Types of cases Juvenile Court might hear   Methodology for identifying resources & code development   Some of the support services you might need PLANNING CONSIDERATIONS What are the realities of any Code?   It is impossible to write a Code that a deals with all possible situations.   Codes should give general guidance to the judges and the people using the court   Keeping things simple will help the community to follow the law, the lawyers and advocates to argue the law and the judge to apply the law Code Development Considerations   Type of situation(s) you want your Court to address   Timeframes for Code Development & Implementation   Knowing who to include in the process   Costs Associated with Code Development   Costs Associated with Code Implementation   Your tribal code provisions should be grounded in the traditional values of your community Basic Steps   1) Identify team members   2) Complete a Community Assessment to identify issues, problems & resources   3) Know and understand your Tribal Constitution   4) Identify the impact the Code will have on the community   5) Create a code development plan (a to do list)   6) Develop a financial plan (do this early on to avoid delays with implementing new laws) Code Development Team   1) Identify who the team will include and why they are important.   2) Identify what role your team and its members will play in code development Community Assessments   Is there a community consensus that a problem exists and that something needs to be done to address the problem?   everyone need not agree on how best to “fix” the problem but having people acknowledging the problem is half the battle   Don’t be afraid to get input from the community on potential “fixes” early on   Identify the resources within the community that are available to achieve some measure of a solution Tribal Constitution/ Code   Will set forth the procedures you need to follow to get a law passed and implemented (creates the roadmap for the code development team)   Will tell you if there are timelines that you must meet   If you do not get the law passed in accordance with the Tribal Constitution & existing law….. The Code is not valid Involving the Community   Promotes sense of community. Community is more likely to embrace the change if they have input.   Helps to identify what is important to the community   Prevents problems later when you are ready to implement the Code   Can be as simple as an informational meeting to let the community know what you are planning and why…such meetings also provide an opportunity for community members to provide input Incorporating Tradition(s) & Custom(s)   First identify what role traditions and customs might play in resolving identified issues   Procedure (what process do you want people to follow… adversarial, circle, peacemaking, elders panels, peer responses etc)   Substance (what rules or community norms/ values do you want to include)   Can/ is it appropriate to incorporate these traditions and customs into the code provisions you are developing   Be sure to consider whether orders need recognition by other courts Finances & Other Resources   From the onset it is important to consider finances and other resources that will be needed to address a problem or implement a code   look to the community assessment to see what resources exist in the community already (ie. mental health counseling, work programs, parenting classes, social services etc)   identify areas of deficient resources - not much good to require parents in custody cases to undergo home studies if there are no agencies or people to conduct them Worksheets   Worksheets in your materials will assist you when you return home to:   develop a planning team   identify the role and process for the team   complete a community assessment (additional resources are available for more thorough community assessments)   review your tribal Constitutions   identify what issues you want your court to address   identify necessary financial or other resources that will be necessary Code Development Defining the Docket   This means identifying the types/ kinds of cases that the Court will address. For example… a Juvenile Code may include:   Dependency cases (child deprivation)   Delinquency cases (ie. Malicious property damage)   Status offenses (ie truancy)   Wellness Cases (substance abuse and/ or mental health cases)   Family Court cases (divorce and child custody) Getting started   Once you have determined what kinds of cases your court will address and you have established your code development team and conducted your community assessments what is next?   How do you put pen to paper?   Should you hire an attorney?   Other considerations.... Smaller projects   Your code development team may feel equipped to work independently on smaller projects (ie. Developing a statute or one title)   When developing an ordinance a team approach is recommended but be sure to include people/ agencies who have something to contribute (ie. if you are developing a truancy code you probably want to include school officials)   Look to what others have done and pick and choose the things you like from other tribal or state codes... no point recreating the wheel unless you have to   If you have a tribal attorney you might want to include them as a team member but be clear they are PART of the team Larger projects   Developing an entire Code   These can certainly be more daunting and there are several approaches you can take:   Code Development team could review, revise and edit the entire Code.   Code development team could review the code and identify the problem areas then work with an attorney to revise   Tribe could hire an attorney to revise the Code and the Code Development team could work with the attorney on edits or to explain community issues, traditions and customs   Other suggestions???? Suggestions....   Regardless of the process used by your Tribe there should be consultation with affected agencies and programs who will be directly impacted by the changes to the laws.   (ie. if you are revising your child deprivation codes you probably want to have discussions with social services)   If you hire an attorney be sure that they are already or are willing to become familiar with your community, traditions and customs and that they respect the same Intersection of law   In juvenile matters there are often intersections of tribal/ federal/ state laws….   Child deprivation (IV-E funding considerations—ASFA; ICWA)   Custody (ex. UCCJEA—to follow or not? What are benefits/ drawbacks?)   ICWA – should tribe adopt provisions of the ICWA (benefits? Drawbacks?)   Delinquency (criminal jx. Cases come into play – Oliphant; U.S. v Lara etc) Community Resources   Once you know what types of cases you want the court to decide you need to be sure the community is equipped to support the orders of the court   For example if you are going to include probation or detention for juvenile offenders be sure you have access to such services or provide other alternatives for the court as well Implementation Code is drafted now what?   Once Code is drafted in needs to be approved in accordance with Tribal Codes and Constitutions (for Tribes with existing CFR courts there may be federal regs as well)   Implementing the law.....   Consider community education   Consider need for cooperative efforts with service providers   Consider financial resources necessary (for personnel; office space; services etc) Lessons Learned Discussion   Are there any questions or experiences any of you would like to share   Any questions any of you have for me?