Commission to Study Racial and Ethnic Bias in the Courts
Wellness Center Healing Room
United Tribes Technical College, Bismarck
April 13, 2012
10:00 a.m. Call to Order.
Hon Donovan Foughty, co-chair Hon. Sonna Anderson Tom Disselhorst Jim Fitzsimmons Prof. James Grijalva Robin Huseby Ulysses Jones Dr. Erich Longie Justice Mary Muehlen Maring Sinisa Milovanovic William A. Neumann Ross Munns for Rod Olson Hon. Michael T. Swallow Tom Trenbeath
Justice Carol Ronning Kapsner, co-chair Griselt Coral Andrade Leann Bertsch Hon. Wickham Corwin El Marie Conklin Scott Davis Lisa Jahner Hon. William McLees Troy Morley
Co-chair Foughty called the meeting to order at 10:10 a.m. Judge Foughty asked for approval or corrections to the March 23, 2012 minutes. Tom
Treanbeath moved to approve the March 23 minutes as submitted. Dr. Longie seconded
and the motion carried unanimously. Dr. Longie explained a short handout from the website www.lastrealindians.com. The
handout provided insight on Native American perceptions when leaving reservations and
added more detail to discussions held in previous meetings.
Judge Foughty explained the meeting agenda, which concentrated on reviewing proposed
findings and recommendations and completing a working list. Staff explained the layout
of the findings and recommendations document provided to members. Judge Foughty
said that the meeting needed to generate consensus on which recommendations would be
accepted or rejected. He added that Judge McLees had a number of comments on the
report draft, but, was unable to attend at the last minute.
Tom Disselhorst said that members should get the recommendations and findings in
writing as well as discussing them, to allow notes for future discussion and voting. Judge
Foughty added he was hoping to hold one more or two more meetings. Professor
Grijalva noted that the correction of factual and other issues in the body of the report
would not require a Commission vote, but recommendations and findings would. Tom
Disselhorst suggested that the Commission should proceed to examine items marked for
review in the “Findings and Recommendations” document provided by staff. Members
The Commission examined a proposed recommendation on the potential use of tribal
identification cards for jury selection. Judge Foughty and staff explained previous
discussions related to this recommendation. Members had agreed that such an ID would
require birthday and address information to be a viable source for jury lists. Tom
Disselhorst said that this tribal ID effort would work better as a tribal initiative rather
than coming only from the state. Members recalled that Scott Davis had said that the
effort would include a tribal initiative.
Judge Swallow said that he was not in favor of including the tribal ID recommendation.
He suggested that another recommendation calling for a dialogue with the tribes for
supplemental lists covered the same ground and would also include sources such as tribal
voting lists. Many tribal members decide not to have a tribal ID. Others get ID cards
because they lack drivers’ licenses. Judge Swallow said there is little purpose in using
tribal IDs for jury selection instead of voter lists. Professor Grijalva agreed and
emphasized that the recommendations should also indicate more of a spirit of
cooperation and coordination between the state and tribes. He added that the
effectiveness of recommendations on jury list expansion depends on the tribes and how
each keeps data. Judge Swallow said that some tribes collect data, while others do not.
Dr. Longie said that the recommendations should focus on extending the jury pool, but
should also be directed toward encouraging participation. He added that
recommendations should indicate a willingness to work with tribes. The Commission
exists in part to address issues between the state and tribal systems and individual
misunderstandings of different requirements between the two systems. If states
recognize these differences, it would be a step in the right direction.
Ross Munns noted that the main intent for including such a recommendation seemed to
be to further facilitate the use of a tribal ID throughout the state. Judge Swallow said that
the ultimate goal should be to increase jury pool representation, and that the tribal ID
should be a separate issue. Dr. Longie and Judge Foughty asked whether consensus was
to move the recommendation out of the juries section or incorporate it into the more
general recommendation for dialogue for tribes for supplemental jury lists. Bill
Neumann noted that jury selection using tribal IDs would still involve a dialogue with the
tribes for lists. Judge Swallow suggested that the broader recommendation to explore
sources for jury expansion could include the phrase “such as lists of ID cards.” Tom
Disselhorst said that the key is to make sure we are clear that this is an option for the
tribe, not some kind of demand from the state. Members agreed to remove the specific
recommendation for tribal IDs. Tom Trenbeath suggested phrasing the broader
recommendation: “Courts should pursue a dialogue with the tribes for access to sources
of information that may be useful for expanding jury lists.” Members agreed.
Staff explained recommendation on Batson challenges. Ulysses Jones suggested that this
recommendation, as well as others, might benefit from references back to the main
content of the report.
Members provided a short break in the discussion while Tom Disselhorst introduced
United Tribes Technical College President David Gipp, who welcomed the Commission
to the UTTC campus. President Gipp recognized the Commission’s important mission,
saying that participation for people of color in government is an issue in North Dakota.
He noted that the state faces many changes, both positive and negative. A large number
of Native Americans are moving off of reservations, which means increasing numbers of
Native Americans are living in state jurisdictions. Students at UTTC want to move to
wherever jobs can be found. This is a big change from the past, when students usually
returned to reservations after graduation. North Dakota is also getting a “dose of
diversity,” which many people are not used to because they have not grown up with it.
President Gipp noted the importance of education on these issues is important for both
citizens and officials. He said that the legislature also needs to learn, and the citizenry
has to follow.
President Gipp also noted that the Healing Room has hosted many key meetings of
important officials and tribal leaders. He said that this Commission is crucial, especially
because the state minority population is very young, growing, and moving into the cities.
The question is how to prepare the future for young people.
Judge Foughty thanked President Gipp and United Tribes Technical College on behalf of
members and noted that he was part of the initial effort to establish the Commission.
Returning to discussion on the Batson recommendation, Jim Fitzsimmons said that the
recommendation should be re-phrased to refer to “jury challenges based on Batson v.
Kentucky” with a citation to the case. Commission members agreed to this proposal.
Moving on, Judge Foughty said that example materials for improving outreach to New
American communities could be placed in an appendix rather than being referenced in
the text of the recommendations. Members agreed to this change.
The Commission considered findings and recommendations in the criminal chapter.
Tom Disselhorst said that a recommendation regarding liaisons for New American
communities could be dropped if the report itself referenced existing Fargo and Grand
Forks programs. Sinisa Milovanovic said that Bismarck probably has hired liaison by
now, in addition to Fargo and Grand Forks. Jim Fitzsimmons asked if any particular
program stands out as exceptional and could be referenced with regard to expanding
existing programs. Sinisa Milovanovic said that the Fargo program has existed since
1998 and has been effective. He added that the position is referred to as a “cultural
liaison” rather than a “law enforcement liaison” because it includes a broad variety of
work. Judge Swallow recommended changing the language to include the terms
“cultural liaison” and “minority communities.” Members agreed to these changes and
retained the modified recommendation.
Jim Fitzsimmons noted that the Commission’s study appears to show three broad groups
of minorities in the state. Bias can affect all groups, but some face unique, relatively
consistent issues. Native Americans are subject to multiple sets of laws and two different
systems. New Americans may have little understanding about the system that they have
recently stepped into. Minorities that are not part of these groups may run into bias, but
usually without similar complicating issues. Jim Fitzsimmons added that the work
produced on gender bias is still in place after 15 years, and that the Commission’s report
recommendations have to be forward-looking and inclusive.
Judge Foughty said that the report contains a definitions section, but the definition for
minorities may not be adequate. The section should clearly indicate all three groups.
Sinisa Milovanovic agreed that concepts of minority status can change over time. Tom
Trenbeath said that the three groups can be incorporated into the existing definition.
Professor Grijalva agreed. Sinisa Milovanovic suggested that adding the phrase “New
Americans and minority communities” to the definition would address all the groups
discussed, and the rest of the definition was sufficiently broad to accommodate future
Jim Fitzsimmons said that the question of treatment of Native Americans living on
reservations as in-state or out-of-state residents in bond schedules is an important issue.
He noted that some members who were unable to attend the meeting probably have input
on the issue. Judge Foughty said that the introduction of more objective bond standards
would help, and pointed to Minnesota as an example. He added that the determination
depends on two criteria: risk and the likelihood that the individual will appear and that,
many times, out of state people do receive PR bonds. Dr. Longie said that jurisdictional
boundaries probably do not complicate apprehension of the individual as much as
assumed, since Native Americans may live in areas where state law enforcement has no
jurisdiction, but they do not stay there all the time. He said that people do not “dig in” on
reservations, as popular perceptions might assume. He added that another goal would be
to get rid of the perception that going on the reservation requires a huge squad car filled
Judge Foughty said that several listed criminal recommendations regarding bonds
appeared to be closely related. Tom Trenbeath agreed that most of them could be
combined. Jim Fitzsimmons indicated that the issue of bonds should appear on the
agenda for the next meeting, to give absent members the opportunity to comment. Judge
Foughty said that the main issue is providing consistency in the bond schedule, and that
reliance on objective criteria covers some of the issues. Jim Fitzsimmons said that
disparate treatment needs to be acknowledged, and solutions need to be proposed. He
added that members also have to consider the difference between their own perceptions,
drawn from many years of experience, and public perceptions that will probably be
quicker to associate disparate bonds with bias.
Judge Foughty said that the recommendation could be re-phrased to state directly that
Native Americans “should be treated as all other individuals,” and the bond schedule
would provide objective criteria. He said that recommendations for this kind of bond
standardization and elimination of different treatment of Native Americans on
reservations could be closely examined to ensure it can work smoothly. He referenced
past experience with North Dakota Rule of Court 7.2, regarding recognition of tribal
court orders and judgments, as an instance in which a somewhat controversial effort
worked. Dr. Longie said that there is not only a jurisdictional issue, but deeper
considerations. Tribes may not favor reciprocity with courts, or similar arrangements
because they perceive bias or believe that proposed solutions will be one-way
Judge Foughty suggested removing specific reference to the LSI-R tool in a criminal
recommendation regarding evidence-based practices. Bill Neumann said that the LSI-R
could be included in an appendix. Tom Trenbeath recommended keeping reference in
the recommendation and members agreed to retain it.
Judge Foughty commented on a recommendation on training for judges in motivational
interviewing techniques. Judge Foughty said that such techniques may be useful for drug
court. Bill Neumann said that the language refers to sentencing, but such interviewing
does not seem relevant. Members agreed to remove the recommendation.
Members considered a recommendation that suggested coordinating services for
probationers and parolees between state committees and tribes. Judge Swallow
suggested that the implementation committee could deal with such coordination. He said
that many tribes do not have services available, but some are starting work to coordinate
and establish these kinds of services. He added that jurisdictional issues must be
considered in this kind of effort. Members agreed that this recommendation and another
regarding early release for probation should be removed from the list.
Members discussed a recommendation for collaboration with Department of Human
Services. Judge Foughty said that there is a committee working with DHS. He said the
problem is that Judges do not know which programs are evidence-based and which are
most effective. Tom Trenbeath said that both this recommendation and another calling
for coordination between the courts, DHS, and NDDOCR for evidence-based treatment
programming appeared generic. He said that they were applicable to the justice system
generally, rather than concentrating on race and bias. Jim Fitzsimmons noted that the
report did not contain information to support these two recommendations. Members
agreed to eliminate both of them from the list.
Members considered two recommendations directed toward law enforcement officers,
calling for cultural diversity training and training on tribal, state, and federal jurisdiction.
The Commission adopted both recommendations, with slight modifications in language.
Judge Foughty said that a juvenile recommendation relating to cultural sensitivity and
ICWA training could be split into two separate recommendations. Members agreed to
separate the two recommendations, as discussed. With no other corrections noted for the
juvenile chapter, members moved on to the civil section.
Jim Fitzsimmons presented several comments and clarifications related to civil findings
and recommendations. First, he referenced a question on Legal Services of North Dakota
funding that arose during a previous meeting, which he was not able to attend. He
acknowledged that LSND does not receive sufficient money to run from the federal
government alone. He added that leadership in the state bar associations has taken
excellent steps to expand pro-bono. He said that the report needs some kind of finding or
acknowledgment of the effective leadership, but also need a recommendation on
increasing rank and file cooperation
Bill Neumann suggested a change to a civil recommendation calling for SBAND support
for expanding resources to include “continue to” support “pro-bono” instead of “LSND
resources.” Professor Grijalva said that there has been some discussion of pro-bono at
the UND School of Law, and that one beneficial activity would be to have members of
the bar or commission members visit the campus and give talks to students.
Jim Fitzsimmons said that a civil finding indicating that most legal services applications
come from counties containing a LSND office was accurate and comes from information
in the LSND annual report. Members agreed to several language changes in the relevant
Tom Trenbeath suggested a change in language for a juvenile recommendation on the
licensing of minority foster parents. Dr. Longie asked whether the report could include a
recommendation to support the establishment of a human rights committee in North
Dakota. Judge Foughty said that a recommendation supporting such an effort might fit
within the general recommendations, but would require further drafting and discussion.
Judge Foughty summarized remaining Commission work. He said that the Commission
needs to have final votes on findings and recommendations. Members should continue to
independently review the report, as well as the findings and recommendations. Minor
corrections to the main report should be sent to staff for incorporation into the draft.
Comments on content or changes to the findings and recommendations would have to be
discussed in a further meeting.
Judge Foughty said that the goal for the next meeting would be to get hard copies of the
final report mailed to all members beforehand. He directed staff to send members
proposed meeting dates in May and June to determine an acceptable date.
Staff said that copies of the report could be printed by the time of the next meeting, but
that he would need sufficient time to incorporate corrections, so the deadline would have
to be several weeks before the next meeting date.