FIJ Quarterly - Fall 2022 Edition

into the judge's chambers. And during that moment, I don't know, I wish the judge could be a little bit more human in those moments, but he wasn't. He would keep his robe on and it'd still be really buttoned up, but maybe that's just me.” While some tribal systems maintain more traditional governance practices as passed down from the elders, other tribes operate under the assumption that tribal members are better off when their governments, including the courts, are more in line with other (non- tribal) governmental structures. Much of the way practices are implemented depends on the preferred worldview of leadership within the tribal community responsible for implementing the programs they oversee. However, one child welfare administrator made it clear that they believe it is better when tribes incorporate traditional beliefs into the process as much as possible. “Our ceremonies actually revolve around... They're initiated by children. They're the catalyst behind them. And so I think getting in that space and having our legal system, especially tribal legal systems, more proximate to those values are better for everybody. So, when we center children's voice you get better outcomes, of course.” This difference in worldview does include the perceived developmental capability. Another CW administrator interviewed commented that: “…Native people believe that children are inherently intelligent and able to understand more than Western society gives him credit for… I talk to kids just like I would talk to an adult…and I think being genuine with them and being honest with them and not playing, no sugarcoating… just talk to them…” This description is different from assumptions of “diminished capacity.” Best Interests, Expressed Wishes, and Developmental Capability In many instances, best interest, expressed wishes, and developmental capability were

While Buss argues that there is little evidence that developmental jurisprudence has been attempted, 9 interviews with tribal child welfare officials and youths that we have conducted as a part of a larger study on child welfare reform indicate otherwise. Tribal courts adhere to both American jurisprudence doctrines such as parens patriae 10 , from which the origins of best interests arise, and to traditional governance that varies from tribe to tribe—traditional governance principles that indicate greater respect for children’s capacities than in state courts. As such, our participants reported having, in some cases, involved youths, including pre-adolescent youths as young as six or seven, in their child welfare proceedings. This paper presents a summary of how tribal courts have functioned differently and, to a large extent, more successfully than state and county courts in applying best interest determinations. We explore how tribal courts have managed to operate from a developmental standpoint within their respective traditional beliefs on the importance of children and developmental capacity and how tribal youths themselves have experienced the tension between their best interests and expressed wishes in state courts. Finally, we offer some recommendations for future judicial practice that could be tried and tested in both tribal courts as well as non-tribal ones. Current Study Description & Methods Eleven tribal stakeholders representing 11 different tribal communities in five different states (Michigan, Oklahoma, Arizona, Washington, and Alaska), participated in interviews as a part of a larger study on child welfare (CW) court reform efforts. Nine subjects were cisgender women, and two were cisgender men. All of the tribal agency and court personnel (n=9) were enrolled members of a tribe (though not necessarily within the tribe they worked for) and had worked in both tribal and state or private child welfare agencies. The AIAN young adults with lived system service experience (n=2) were served in concurrent jurisdiction; their child welfare cases were state agency supervised with their tribal nations intervening

as interested parties. Both of these adults were in kinship placements, and one experienced reunification, which was eventually disrupted. Both of these young adults with lived system experience were enrolled in college at the time of the interview. More specific demographics for each of the participants are captured in Table 1. Participants were given a gift card as an honorarium to compensate them for their time in engaging in these interviews. Table 1: Participant Demographics Role N #Years in Current Role

process will be discussed here: state/ tribal court differences, best interests, expressed wishes, and developmentally appropriate engagement. State/Tribal Differences Some of our interviewees remarked that their tribes were more child-centered than state courts are. As the tribal CW administrator reported, “…(they- the two judges presiding over the court) value that [the child has] input and they both would make sure that child had a chance to speak, and if that child wasn't there they wanted to know why that child's not there (at court). … we have little kids running around the corner, you know, maybe they had no idea was happening just running wild but that's why we're there; we’re there for that child- the child should be there.” One can argue that children running in the halls of a county courthouse are not a sign of having a child express their wishes. However, the tribal administrator describes procedures that are far more child-inclusive than in other jurisdictions. They also described court procedures that are atypical of western court processes, such as holding court sessions with chairs arranged in a circle and not having a raised judge’s bench. The child welfare administrator also described judges making a point of wanting to know if the child was not present, whether there was a good reason for the child’s absence, and for being willing to hear a child’s expressed wishes down to the very youngest of ages. However, it is important to note that the process of holding court and listening to youths also varies in tribal jurisdictions. One of the tribal Guardian Ad Litems (GAL) described two very contrasting tribal courtroom experiences that he participated in: “Actually the (tribal #1) courtroom, they (the judges) were at eye level. So that wasn't on a raised dais, they actually were on the same level as everybody. But the (tribal #2) courtroom, it was a raised dais, and the judge stayed up there the whole time. We would ask for chamber time, and so we would ask for some time to go back

CW Administrator* 3 1-4 CW Supervisor 1 7 CW Direct Line Staff 3 1 Court Professional 2 4.5 - 6 Young Adult with Lived Experience 2

5.5 years (average time in care

*The tribal child welfare administrators interviewed have worked in leadership in both tribal child welfare and state child welfare settings We used a framework analysis qualitative approach 11 to code our interviews. Such an approach uses pre-determined codes from a literature review to identify themes but then derives additional codes from the transcripts themselves. We familiarized ourselves with the data through thorough, repeated reading of transcripts transcribed from audio-recorded interviews. Preliminary themes were derived from both the interview guide and the iterative inductive process of reviewing the transcripts. The final themes reported in this study emerged from this inductive process, as well as the use of inter-coder reliability across the two coders who analyzed the transcripts. Results Four of the extracted themes from the inductive ______________ 9 Buss, 2013 10 Fraser, C. (2000). Protecting Native Americans: the tribe as parens patrie. Michigan Journal of Race & Law, 5 , 665 11 Goldsmith, L.J. (2021). Using framework analysis in applied qualitative research, The Qualitative Report, 26 (6). 2061-2076. 3715/2021.5011

52 | FIJ Quarterly | Fall 2022

FIJ Quarterly | Fall 2022 | 53

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