(U.S.) NATIVE AMERICANS

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This includes the reservations and (in Alaska) alternative land arrangements of federally  recognized Indian Nations. Statutes refer to native-occupied land as “Indian Country”.

List of reservations:  https://en.wikipedia.org/wiki/List_of_Indian_reservations_in_the_United_States

List of Alaska Native tribal communities:  https://www.aaanativearts.com/alaska-indian-reservations

BUT: The 88 tribes and 7 other native groups that are only STATE-recognized must follow the state reporting rules. See respective Digest section.  [18 U.S.C. § 1162; 28 U.S.C. § 1360; 25 U.S.C. §§ 1321-1326; http://www.tribal-institute.org/lists/concurrent_tribal.htm]  For a list of these states, tribes & groups, see https://www.500nations.com/tribes/Tribes_States.asp

WHO:        ALL citizens MUST report, according to the Bureau of Indian Affairs.

·        “Individuals hired in positions involving children are required by law to report any suspected child maltreatment. The law designates certain professionals but every individual (citizen) is required to report any suspected child abuse and neglect concern.”  (emphasis added) [Child Protection in Indian Country … (see Resource below)] 

·        The receiving agency acts on any report of (A) abuse of a child in “Indian country” or (B) actions which would reasonably be expected to result in that.  [25 U.S.C. § 3203(b)(1)] 

Covered Professions: ANY person among the following MUST report: (A) physician, surgeon, dentist, podiatrist, chiropractor, nurse, dental hygienist, optometrist, medical examiner, emergency medical technician, paramedic, or health care provider; (B) teacher, school counselor, instructional aide, teacher’s aide, teacher’s assistant, or bus driver employed by any tribal, Federal, public or private school; (C) administrative officer, supervisor of child welfare and attendance, or truancy officer of any tribal, Federal, public or private school; (D) child day care worker, headstart teacher, public assistance worker, worker in a group home or residential or day care facility, or social worker; (E) psychiatrist, psychologist, or psychological assistant; (F) licensed or unlicensed marriage, family, or child counselor; (G) person employed in the mental health profession; or (H) enforcement officer, probation officer, worker in a juvenile rehabilitation or detention facility, or person employed in a public agency who is responsible for enforcing statutes and judicial orders.  [18 U.S.C. § 1169(a)(1)] 

NOTE: Tribal councils may add reporting laws. Non-Tribal members serving Native children should check for those.

·       NOTE: The mandate is not limited to observations made while reporters practice their professions. So, the mandate extends to observations made in their free time also.

·       STANDARD:  [18 U.S.C. § 1169]  “Child” means unmarried and under age 18.

o   For covered professions: knowledge or reasonable suspicion that: (a) a child was abused in Indian Country; or (b) actions are being or will be taken, that would reasonably be expected to result in abuse of a child in Indian Country. 

o   For any other reporter: same standard.  [cf. 25 U.S.C. § 3203(b)(1)] 

·       PRIVILEGE:  Not addressed in the statutes reviewed. However, 18 U.S.C. § 1169 provides for no reporting exclusions in the medical, mental health, or counseling fields.

WHEN:      For covered professionals:  IMMEDIATE.  [18 U.S.C. § 1169(a)(3)] 

WHERE & HOW:  Reports are to either of the following agencies; no reporting method or medium is specified.  [18 U.S.C. § 1169(a)(3)]

(1)      Local law enforcement agency (federal, tribal, or state law enforcement agency with primary responsibility to investigate child abuse in that portion of Indian country). The default agency if none was designated is the Federal Bureau of Investigation.

(2)      Local child protective services agency (federal, state, or tribal agency with child protection primary responsibility at any reservation or Indian country community).

Note: Each tribe and each facility of the Bureau of Indian Affairs (BIA) and Indian Health Service (HIS) has a reporting protocol. For help on specifics, contact any of:

(a)   local law enforcement (nationwide directory at https://www.usacops.com/); or.

(b)   the local Indian Child Welfare program (see the nationwide ICW directory posted at: https://www.federalregister.gov/documents/2019/05/09/2019-09611/indian-child-welfare-act-designated-tribal-agents-for-service-of-notice).

(c)   the BIA / Indian Country national child abuse hotline at 1-800-633-5155; this option should be used if attempts to contact local authorities are unsuccessful.

Note: Directory of tribal leaders: https://www.bia.gov/bia/ois/tribal-leaders-directory/

Resource:  Anonymous, Child Protection in Indian Country: A Handbook for Indian Health Service and Bureau of Indian Affairs.

OTHER ASPECTS

·       REPORT DETAILS:  As much as possible of: (a) child’s name, address, age, and sex; (b) if enrolled, child’s grade and school; (c) names and addresses of child’s parents / caregiver / others responsible for him/her; (d) name and address of alleged offender, if not them; (e) reporter’s name and address; (f) brief narrative of nature and extent of injuries, known or suspected abuse of the child or his/her siblings, and suspected date of abuse or reason for concern for future harm; and (g) other info the reporter believes may help.  [25 U.S.C. § 3203(c); Child Protection in Indian Country …] 

·       REPORTER PROTECTION: (1) The statutes reviewed do not require a reporter to identify him/herself; tribal rules might. (2) Reporter identity is not disclosed without consent except to a court with jurisdiction, or to a tribal, state, or U.S. employee who needs to know.  [25 U.S.C. §§ 3203(d); 3205]  (3) A covered professional reporting in reasonable belief and good faith has no civil or criminal liability.  [18 U.S.C. § 1169(d)]

WHY:        A covered professional who fails to report immediately commits a class B misdemeanor punishable by < 6 months imprisonment and/or < $5,000 fine.  A supervisor or other person with authority over a covered professional who inhibits or prevents his/her report, is punishable by < 6 months imprisonment and/or < $5,000 fine.  [18 U.S.C. §§ 1169(a)(3),(b)]

WHAT:      U.S. statutes require reporting of physical and sexual abuse, but not of neglect though it is investigated. The BIA requires reporting of neglect and emotional abuse/neglect.  [18 U.S.C. § 1169; 25 U.S.C. §§ 3209(d),(f), 3210(c); Child Protection in Indian Country …]

Initial Screening Criteria: (1) abuse of a (2) child in (3) Indian country; his/her safety and well-being are priorities. Local law enforcement reports to the FBI: (a) abuse (b) of an Indian child or of a child by an Indian (c) for evidence of a crime.  [25 U.S.C. § 3202(3),(4)]

Reportable: (1) anyone (even children) for physical or sexual abuse; (2) parent or other caregiver for neglect or emotional abuse / neglect; and (3) possibly others for neglect.  [18 U.S.C. § 1169(c)(1); 25 U.S.C. § 3202(3),(4); Child Protection in Indian Country …]

·        Persons responsible for a child’s welfare have duties for care and safety, such as: (a) residential facility employees and volunteers; and (b) anyone providing out-of-home care, education, or services to children.  [25 U.S.C. § 3202(15)]  Some tribes add: tribal and religious leaders and other adults to whom children would likely turn.             

Abuse includes but is not limited to:  [18 U.S.C. § 1169(c)(1); 25 U.S.C. § 3202(3),(4)]

(A)  Death or evidence of ANY of (a) skin bruising; (b) bleeding; (c) malnutrition; (d) failure to thrive; (e) burns; (f) fracture of any bone; (g) subdural hematoma; or (h) soft tissue swelling; that is NOT justifiably explained OR may NOT be accidental; and

(1)   Physical Abuse means inflicting intentional, non-accidental physical injury by: (a) punching; (b) beating; (c) kicking; (d) biting; (e) burning; (f) shaking; or (g) otherwise harming a child. It does not matter whether the parent or caretaker intended to injure the child that severely.  [Child Protection in Indian Country …]

(B)  Any case of: (a) sexual assault, (b) sexual molestation, (c) sexual exploitation, (d) sexual contact, or (e) prostitution.

(1)   Sexual Abuse or Exploitation: an adolescent or adult uses a child for personal sexual gratification &/or exploitation: (a) fondling genitals (under or over clothing); (b) intercourse; (c) oral / vaginal / anal penetration; (d) incest; (e) rape; (f) sodomy; (g) exhibitionism; (h) prostitution; commercial exploitation by (i) prostitution; or (j) producing or distributing child porn.  [Child Protection in Indian Country …] 

(2)   Gap-filling: Federal law cites incest but does not define the kin it includes.  [cf. 18 U.S.C. § 3509(a)(8)]  Nor does it define the age of consent. Due to federal gap-filling provisions, check the section of this Digest for the applicable state or territory.  [18 U.S.C. § 13(a)(8)]  Each tribe may also have relevant rules.

Emotional Abuse or Neglect means a (1) parent or other caregiver’s (2) acts or omissions, that (3) have caused or could cause (4) serious behavioral, cognitive, emotional, or mental disorders to a child.  [Child Protection in Indian Country …] 

(A)     Psychological Abuse means a parent or caretaker’s chronic negative behaviors toward the child, such as belittling, humiliating, and/or ridiculing.

(B)     Psychological Neglect means a parent or caretaker’s consistent failure to provide appropriate emotional support, attention, and affection.

(C)    Synonyms: psychological and verbal abuse/neglect, and mental injury.

Neglect includes but is limited to negligent (mal)treatment by a person who may (or may not) be someone responsible for the child’s welfare, under circumstances which indicate that the child’s health or welfare is harmed or threatened by that.  [25 U.S.C. § 3202(4)]

·        This includes (a) a parent or caretaker’s (b) chronic failure to provide a child’s (c) basic needs such as food, clothing, shelter, medical care, educational opportunity, protection, and supervision.  [Child Protection in Indian Country …]

·        Abandonment is the ultimate form of neglect.  [Child Protection in Indian Country …]