COMMITTEE ON TRIBAL AND STATE COURT AFFAIRS
Kelly Inn; Bismarck, ND
December 9-10, 1999
Following dinner, Chair Erickstad called the meeting to order at 6:30 p.m. at the Kelly Inn, Bismarck.
Surrogate Judge Ralph Erickstad, Chair
Carla Goodman Marks, Pierce Co. Clerk of District Court
Michelle Rivard, Spirit Lake Tribal Court
Chair Erickstad drew Committee members' attention to the minutes of the April 15-16, 1999, meeting.
It was moved by Judge Olson, seconded by Judge Medd, and carried unanimously that the minutes be approved.
Chair Erickstad then requested general discussion of issues of concern to tribal and state courts.
Jim Fitzsimmons noted that there will be changes in federal grant monies available to tribes for law enforcement personnel under the STOP program. He said these changes will have an impact on the status of tribal law enforcement, including the availability of qualified officers. Additionally, he said, cross-deputization issues have recently surfaced on the Fort Berthold Reservation and questions have been raised about the authority of various law enforcement officials. These are, he said, compelling issues on a reservation like Fort Berthold, or any other reservation, where Indians and non-Indians live or work, or both, on reservation land. He noted that with respect to Fort Berthold particularly area county commissioners are concerned about potential liability in light of uncertainties about the status of cross-deputized officers. He suggested that at a future meeting the Committee review the status of cross-deputization on the four reservations - what in particular is being done and how it is working or not working. Committee members agreed the issue should be discussed, with invitations to tribal and county law enforcement personnel and others to attend and offer their assessments.
Michelle Rivard observed that cross-deputization is working fairly well between Spirit Lake and bordering counties She suggested an explanation from those for whom cross-deputization is working well would be useful.
As an additional topic for future discussion, Judge Foughty suggested reviewing the interaction between the Indian Child Welfare Act and the Adoption and Safe Families Act.
Kelly Stoner noted the new Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which became effective August 1, 1999. She said the act provides recognition for tribal court custody orders that substantially comply with the act. She wondered whether recognition could be obtained under Rule 7.2 of the Rules of Court for those tribal orders that do not substantially comply with the new law.
With respect to future meetings, Judge Medd strongly encouraged more meetings on the reservations. Additionally, he suggested that if a meeting is to be held in Bismarck, the meeting should be held at United Tribes Technical College if at all possible. Jim Fitzsimmons suggested balancing the ability to garner sufficient attendance with meeting on the reservations. He said meeting perhaps twice a year in Bismarck may be acceptable if, for example, meetings are in conjunction with an event like the annual United Tribes Pow-wow or some other culturally significant event. Two additional meetings, he said, could perhaps then be held on the reservations on a rotating basis. Judge Olson agreed it is important to maintain a meeting schedule on the reservations if possible.
After further discussion, the Committee stood in recess until 10:00 a.m., December 10, 1999. Judge Medd noted that, because of a conflict with another meeting, he would not be able to attend the next day's meeting.
Chair Erickstad called the meeting to order at 10:00 a.m. on December 10.
Surrogate Judge Ralph Erickstad, Chair
Carla Goodman Marks, Pierce Co., Clerk of District Court
Michelle Rivard, Spirit Lake Tribal Court
Theresa Snyder, Tribal Liaison, Dept. of Human Services
Coral Mahler, Legal Unit, Dept. of Human Services
Ken Helmer, Chief Deputy, Morton County Sheriff's Dept.
Collin Rixen, Captain, Burleigh County Sheriff's Dept.
Cheryl LongFeather, Bismarck Tribune
Bonnie Palecek, ND Council on Abused Womens' Services
Carmen Miller, Office of the Attorney General
Rick Hoekstra, Division of Probation and Parole
Alyson Schmidt, Office of State Court Administrator
Domestic Violence Protections Orders - Full Faith & Credit Enforcement - Service of Process
Bonnie Palecek, ND Council on Abused Womens' Services, outlined various issues regarding the full faith and credit recognition and enforcement of domestic violence protection orders. She said there are two matters of general importance to the advocacy community - issues relating to the service of protection orders, and the general credibility of the orders themselves. With respect to enforcement by tribal law enforcement, she said there is a continuing question about how tribal law enforcement responds to, recognizes and enforces, a protection order issued by a state court. She noted that in some jurisdictions a cover sheet identifying all pertinent information necessary for full faith and credit enforcement is used and accompanies the order. She said a state court order, received on a reservation, often looks very different from a tribal order and a typical response is for tribal law enforcement to take the state order to the tribal court to determine whether it will be recognized.
In response to a question from Jim Fitzsimmons, Ms. Palecek said there are occasions when it is difficult to obtain full faith and credit recognition of state court orders on the reservations.
Jim Ftizsimmons said tribal judges are the key to securing adequate recognition and enforcement on the reservations of foreign protection orders. He wondered whether a memorandum to the tribal judges explaining in detail the federal law would be helpful. Jan Morley said difficulties arise because of the complex relationships between tribal, state, and federal sovereign jurisdictions.
In response to a question from Jim Fitzsimmons, Jan Morley said the federal law provides a remedy for violation of a foreign protection order, but does not address the unwillingness of a jurisdiction to recognize and enforce an order.
Kelly Stoner noted that the Spirit Lake Nation has established a procedure for registering a foreign judgment. Basically, she said, the tribal court undertakes a limited review of the foreign judgment to determine subject matter and personal jurisdiction and adequate due process procedures. She emphasized that foreign order forms should clearly establish subject matter jurisdiction over a child if child custody is addressed in the order. She noted that the tribal court has been closely following the requirements of the new Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) when reviewing foreign orders in which custody is addressed. She said the tribal court will review the order to determine if the issuing court was the child's home state, and if not, whether there were substantial contacts with the state, or whether the order was entered under the law's emergency exception. Staff noted that a general suggestion has been that if custody is addressed in a protection order and the custody determination is in compliance with the UCCJEA, then the custody provision should be enforced by the foreign jurisdiction. He said the current uniform permanent protection order form in North Dakota, while it has a custody provision, does not address in detail the issue of home state jurisdiction, substantial contacts, or an emergency exception for determining custody.
Judge Foughty noted that on rare occasions a Spirit Lake tribal protection order will be presented to law enforcement in Devils Lake with a request that the order be enforced. He said the state district court has entered an ex parte order directing that county law enforcement can enforce the order. There has never been, he said, an instance in which there has been prosecution in state court for violation of a tribal order. Similarly, Michelle Rivard said she could not recall an instance in which violation of a state order has been prosecuted in tribal court at Spirit Lake.
In response to a question from Judge Foughty, Collin Rixen said the Burleigh County Sheriff's Department would enforce and serve a foreign protection order. However, he said it is crucial that the order be entered in the computerized warrant system so that law enforcement is assured that the order has actually been served. In response to a question from Jim Fitzsimmons, Ken Helmer said as long as the order is logged into the warrant system, there is no difference between a tribal order and a state order - both will be enforced. Bonnie Palecek agreed that is the general situation, but emphasized that the intent of the federal law is that the order is enforceable as long as the order appears valid on its face and should be enforced. She said there is a significant dilemma in that the national order registry is not in place yet and entry of the order in the state system is required before enforcement can take place. These circumstances, she said, will limit the recognition and enforcement of foreign protection orders.
Staff noted that under state law (Section 14-07.1-02.2, NDCC) registration of the foreign protection order, while optional, is not required to obtain enforcement of the order. He said the law provides that the protected person can present law enforcement with the order and tell law enforcement that the respondent was served. Under those circumstances, he said, law enforcement would be authorized to enforce the order. The law, he said, also provides immunity for law enforcement for good faith enforcement of the order. Judge Kautzmann strongly cautioned that the immunity provision may not protect an officer from a federal civil rights law suit alleging a violation under color of state law. Bonnie Palacek observed that, on the other hand, failure to enforce an order creates the potential for liability also. Jim Fitzsimmons agreed state law cannot guarantee against a federal civil rights law suit and officers are put in a difficult situation as a result.
Cheryl LongFeather said the crux of the problem is that not everyone has the same understanding of what can and cannot be done. She encouraged better sharing of information among law enforcement, state courts, tribal courts, and the public so that everyone has a common understanding of what is permissible.
With respect to service of orders, Collin Rixen said Burleigh County sheriff's officers will serve state and tribal orders. He said every Burleigh County protection order has a cover sheet completed by the state's attorney's office which identifies the respondent as best as is possible and provides information important to officer safety, such as whether the respondent may be armed. He said they would prefer to have similar information on all other orders.
In response to a question from Bonnie Palecek, Collin Rixen said Burleigh County does not charge a fee to serve a protection order. He said there is a standard $16 fee for serving other civil process. Ken Helmer said Morton County also does not charge a fee to serve protection orders.
Jim Fitzsimmons observed that on the Fort Berthold Reservation tribal law enforcement does not serve civil papers, but will serve criminal process. He said the obvious alternatives in the civil context is service by mail or using private process servers.
Judge Johnson said service of civil process is a major issue on the Standing Rock Reservation. She said BIA law enforcement does not serve civil papers, but will serve criminal papers and protection orders. The workload, she said, would be too great to expect BIA law enforcement to take on service of civil papers.
Adoption and Safe Families Act/Indian Child Welfare Act -- Issues
Judge Foughty drew attention to the recently enacted Adoption and Safe Families Act (ASFA). The Act, he said, provides that when a child is in foster care or some other placement there must be, over a period of time, concerted efforts to reunify the child with the child's family or, if that effort is unsuccessful, parental rights must be terminated. He noted that a significant proportion of children in the juvenile system because of deprivation is Native American. If, he said, tribes seek a role in the adoption of the children, then a process should be developed to ensure appropriate contacts with the tribes at the beginning of the process. Under the Indian Child Welfare Act, he said, there is a priority for placement of an Indian child outside the home and there is, as well, a requirement for early communication with the tribe.
Lannon Serrano said ASFA requires that certain events occur with respect to children in foster care. He said tribes are required to be notified and if a tribe does not respond or intervene, then the process moves forward under ASFA requirements.
Judge Foughty suggested the need to guard against potential conflicts between the requirements of the two laws. Jim Fitzsimmons said the Committee should periodically review the implementation of ASFA requirements as they relate to Indian children and the Indian Child Welfare Act.
Child Support Enforcement and Cooperative Agreements
Theresa Snyder, Tribal Liaison for the Department of Human Services, said the department is moving forward in a number of areas involving the tribes and child support enforcement. She noted that B J Jones has been working with several tribes to incorporate child support related provisions in tribal codes. Additionally, she said federal child support regulations are being developed for use by those tribes that intend to operate their own child support enforcement system. She said South Dakota and the Sisseton-Wahpeton Tribe have completed a cooperative agreement under which the tribe, if the agreement is fulfilled, will receive the federal share of funding for child support services. She said a recent meeting with North Dakota tribal representatives was held at which there was agreement in principal to use the Sisseton-Wahpeton agreement as an example for agreements in North Dakota.
Coral Mahler said she is completing drafting of cooperative agreements between the department and other tribes which are patterned after the Sisseton-Wahpeton agreement. She said the agreements address service of process and provide for the sharing of information. Additionally, she said child support offices would provide resources for genetic testing and supporting documentation for the child support order. This information, she said, would be provided to the tribal court. She said one objective of the agreements is to attempt to use both tribal and state courts to find the best place to establish paternity. She said service of process has been a serious problem in child support cases and the agreements, in addressing that problem, will be a great benefit.
In response to a question from Judge Foughty, Coral Mahler said enforcement is no problem if the obligor is employed off the reservation. Michelle Rivard said the Spirit Lake Tribal Court has had no success obtaining enforcement off the reservation of its child support orders. Ms. Mahler said whether the order involved is from a tribal or state court should make no difference for purposes of enforcement of the order through a regional enforcement unit.
In response to a question from Judge Foughty, Coral Mahler said if the obligor is employed on the reservation the state enforcement units cannot reach that individual for purposes of withholding income because the employer will not honor the withholding order. She said the cooperative agreements are intended to assist in this area. She said the department will continue to pursue cooperative efforts with the tribes to ensure there is adequate enforcement of child support obligations.
Parole and Probation - Corrections Issues
Rick Hoekstra, Division of Parole and Probation, recalled the Committee's earlier discussion of the number of Native American employees at the penitentiary as compared to the number of Native American inmates. He said the Department of Corrections continues to monitor the situation and has implemented an ongoing process to study how to recruit more Native American employees. With respect to offender population, he said that for the period July, 1997, through June, 1999, 24% of the female population was Native American and 20% of the male population was Native American. He said the department has limited ability in house to reduce the number of Native American inmates coming into the penitentiary. However, he said the percentage of Native Americans in a treatment program for early release back into their community matches the participation rate of other inmates. He said during a recent period Native Americans represented 19% of the participants in that program.
He said the department has reassessed the criterion for placement back into the community to reflect what is more appropriate when considering placement in a reservation community.
Future Committee Activities
With respect to future meetings, Jan Morley suggested the next meeting should be in Belcourt, perhaps at the new Community College. Jim Fitzsimmons said the Committee should attempt to isolate three or four areas for concentrated discussion over a series of meetings.
No further business appearing, the meeting was adjourned at 1:15 p.m.
Jim Ganje, Staff