COMMITTEE ON TRIBAL AND STATE COURT AFFAIRS
Kelly Inn, Bismarck; Prairie Knights Casino
April 15-16, 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
Terri Azure, Turtle Mountain Tribal Court
Chair Erickstad announced he would be unable to attend the next day's meeting and that Judge Foughty would serve as chair at the meeting on April 16 at Prairie Knights Casino. He then noted the recent passage by the 1999 Legislative Assembly of H.B. 1077 which provides for the full faith and credit recognition and enforcement of domestic violence protection orders. He stressed the importance for the tribes of enacting similar ordinances so that full faith and credit recognition and enforcement of protection orders can be fully implemented across state and reservation boundaries. Janice Morley observed that the best recommendation, perhaps, is that the state of North Dakota has now adopted a law implementing full faith and credit and that it is now imperative for tribes to do likewise so there can be a fully cooperative effort in enforcing protection orders.
With respect to recent activities in the Turtle Mountain Tribal Court, Janice Morley said Diane Avery, Michael Swallow, and B.J. Jones currently serve on the Turtle Mountain Appeals Court. She said the Turtle Mountain Tribal Court was recently funded for an alternative drug court. In response to a question from Judge Foughty, she said the drug treatment program at Turtle Mountain is working well and a credentialed counselor now oversees operation of the treatment center. She said the alternative process involves the defendant pleading guilty to the drug offense in tribal court and the tribal judge and prosecutor, working with counselors, then considering whether the defendant is a good candidate for the alternative drug court program. If so, she said, the defendant is then referred to the alternative program. She said the defendant then must complete a series of treatment regimens and counseling sessions. If they are successful, she said, the conviction is expunged.
With respect to the enactment of H.B. 1077, Judge Medd said it is important for information to be circulated to law enforcement through training. He urged contacting the Attorney General's Office to underscore the importance of disseminating information concerning H.B. 1077 to law enforcement. Committee members generally agreed.
Judge Foughty asked who is responsible for the prosecution of a domestic assault by a non-Indian upon an Indian victim on the reservation. Janice Morley said that, for federal prosecution, the degree or seriousness of injury will determine how the offense is charged by the U.S. Attorney's Office. If it is a simple assault, she said, the defendant will receive a citation to appear before a U.S. Magistrate. With respect to domestic violence protection orders, she said federal law establishes a felony offense for crossing state or reservation lines with the intent of violating the order.
With respect to Committee membership, staff said two vacancies currently exist: a public member representative and a tribal court support representative. Judge Kautzmann emphasized the importance of someone with political stature with the tribes who could serve as a conduit for information to the tribal councils. For example, he said, Homer WhiteBuffalo, who works in law enforcement for the Three Affiliated Tribes, is widely known and respected. Chair Erickstad asked Committee members to consider possible membership nominations for submission to the Chief Justice.
After further discussion, the Committee stood in recess until 10:00 a.m., April 16, 1999.
Acting Chair Foughty called the meeting to order at 10:00 a.m. at Prairie Knights Casino. He announced that Chair Erickstad is convalescing from illness and would be unable to attend and that he would, at Chair Erickstad's request, be serving as Acting Chair.
Judge Donovan Foughty, Acting Chair
Surrogate Judge Ralph Erickstad
Judge Isaac DogEagle, Standing Rock Sioux Tribal Court
Operation of Standing Rock Sioux Tribal Court - Update
Chair Foughty called on Marilyn Kary, Court Administrator, Standing Rock Sioux Tribal Court, for an overview of the operation of the tribal court. Marilyn Kary said the tribal court has recently pursued modernizing efforts, including changing the rules of court, reviewing procedures, and installing an amplified court recording system. She said the tribal court is working hard to ensure increased public awareness of procedures to be followed in certain proceedings and is providing forms for public use. She said training on the tribal court has been provided and training sessions introducing people to the tribal court have been held, including training on civil court, criminal court, and juvenile court. She said comments she has received indicate an increased level of trust in the tribal court.
In response to a question from Janice Morley concerning recommendations for changes to the tribal code, Marilyn Kary said tribal code changes are usually generated by the tribal council and reviewed by the tribal attorney. Janice Morley noted the recent enactment of state legislation regarding full faith and credit protection of domestic violence protection orders. She said there is a need for tribes to adopt similar laws. Judge DogEagle observed that tribal personnel are working toward uniform language to implement the federal full-faith and credit requirement.
Marilyn Kary noted that the Standing Rock Sioux Tribal Code allows judges to use traditional law and customs in resolving disputes. She said tribal personnel are now working to reduce to writing the customs and traditional laws of the Standing Rock Sioux Tribe so others are aware of what those customs and traditions are.
Judge Foughty emphasized that if the tribal code and rules are accessible and if traditional laws and customs are reduced to writing and are accessible, these efforts will surely increase the visibility of tribal courts, particularly to state and federal courts.
With respect to handling high profile cases, Marilyn Kary said she often refers these kinds of cases to special judges who are approved by the tribal council and paid by the tribal council.
Jim Fitzsimmons noted that Fort Berthold has a chief judge and four associate judges, to whom cases can be assigned to handle conflicts of interest or recusals.
Judge Sheets noted a constitutional revision committee is also working on a number of possible changes to the Standing Rock constitution, one of which is a provision for the formal separation of powers.
In response to a question from Judge Medd, Judge Sheets said the court is located in the same building as law enforcement. He noted there are problems with adequate facilities for juveniles, particularly since Bureau of Indian Affairs regulations disallow housing juveniles with adults. He said the tribal council is concerned about placing juveniles in off-reservation facilities because of the fear of loss of jurisdiction and other issues. Bill Bossman described a situation in which a tribe in Nebraska had housed a juvenile off-reservation at a state facility. He said when the juvenile caused trouble at the facility, it was prosecuted in state court and the tribe had, as a result, lost control over the juvenile.
With respect to other changes in tribal court process, Judge Sheets said all criminal cases are set for trial within 6 to 8 weeks if no jury trial is requested. He noted that all back logged jury trials (129) have been resolved. Currently, he said, anyone who requests a jury trial will have a jury trial scheduled within two months from the time of arraignment. In response to a question from Jim Fitzsimmons, Judge Sheets said there are approximately 80-100 bench trials scheduled each month and approximately 8-12 jury trials.
Marilyn Kary said jurors are selected from the eight reservation districts using tribal election rolls. She said the same panel of jurors serves for one year and jurors are paid mileage and a per diem of $20 per day.
Judge Sheets noted that during 1998 there were 3,560 criminal complaints filed, of which 489 were DUIs. In response to a question from Jim Fitzsimmons, Judge Sheets said approximately 10%-20% of cases are resolved by guilty pleas.
Marilyn Kary said that tribal court process and procedures will continue to be reviewed and modified to ensure adequate tribal court services are provided to reservation residents. She emphasized that a strong foundation is necessary for the tribal court to function appropriately.
1999 State Legislation Affecting Indian Country - Update
At the request of Chair Foughty, staff summarized the following legislation enacted by the 1999 North Dakota Legislative Assembly which affects Indian country. H.B. 1077 (full faith and credit recognition and enforcement of foreign domestic violence protection orders); S.B. 2103 (removes requirement for a special cigarette tax stamp on packages of cigarettes sold to tribal members); S.B. 2114 (includes directives for studies concerning tribal unemployment and temporary assistance to needy families programs and tribal administration of family assistance grants); S.B. 2152 (redraft of the uniform child custody jurisdiction and enforcement act, which specifically addresses application of the act to Indian tribes); S.B. 2294 (simplifying the agreement process between Indian tribes and the state); H.C.R. 3002 (proposing a study of tribal long-term care and case management needs); and S.C.R. 4036 (proposing a study of temporary assistance for needy families in North Dakota as those programs relate to the state and tribes within the state).
Tradition and Culture in Dispute Resolution
Chair Foughty next called upon Judge Isaac DogEagle, Standing Rock Sioux Tribal Court, for comments regarding the role of tradition and culture in resolving disputes.
With respect to "codifying" traditional customs and laws, Judge DogEagle said there is a concern that if traditional laws are put in writing, they may lose some of their sacredness. That, he said, should not occur, so the effort to put the customs in writing is continuing. He said he tries to use the unwritten laws and customs in certain cases, for example, emphasizing the responsibility of men in the tribe in child support cases so there is more pressure upon men to pay child support. If custody is the issue, he said, tribal tradition dictated that relatives of both sides would decide who is best situated to raise the child. He noted that many years ago juvenile crime was not as prevalent as it is today because young people were very busy. He said between the ages of 12 and 14 a child was typically being trained in many different crafts. For example, he said, the child may be trained to tell the difference between animal tracks or would be trained by various tribal members skilled in such crafts as making bows, arrows, or saddles. Today, he said, that does not occur and juveniles are submerged in the dominant culture. Most, he said, thrive on violence, physical aggression, and death. He said many kinds of music influence juveniles and the music often does not convey a positive message. Juveniles, he said, then put the music into practice to bad effect. He noted that Indian music conveys something much different by singing of honoring people, conveying courage, or doing the right thing. With respect to domestic disputes, he said, the objective is to ensure the parties have talked about the dispute, to give them time to consider the problems, and then help them seek some common agreement if possible.
With respect to different approaches to domestic issues, Judge Medd noted that state child support guidelines do not take into account any in-kind contributions made by the non-custodial parent. Judge DogEagle said he sometimes does give credit in satisfying child support obligations if the non-custodial father pays for clothing, pays bills, or pays the rent. Janice Morley said the positive part of not having child support guidelines codified is that it gives more flexibility to the judge.
Judge Olson observed that state judges would likely agree the judicial process does not work well with respect to domestic relations cases. He said the adversarial system often works against effective communication. He asked whether specific procedures are in place in tribal court to assist informal resolution of these matters. Marilyn Kary said there is a court counselor in the juvenile area that can explain tribal traditions and attempt to resolve cases informally.
With respect to child custody, Judge DogEagle observed that custody traditionally depended upon the sex or age of the child. If the child was young, he said, custody would likely be given to the mother. However, he said, the father would likely be given custody of an older, male child.
Bill Bossman described a case he once heard as tribal judge of the Omaha Nation, in which the mother of five children died in a car accident. The issue, he said, was who would receive custody of the children. One side, he said, argued that Omaha culture and tradition dictated that the sisters of the mother would assemble and decide which of the sisters should care for the children. The other side, he said, argued that the father should be given a chance to care for the children and if he failed, then the sisters would decide the matter. After a hearing to sort out the history and tradition, he said, both sides appeared to agree that it was appropriate for the father to be given a chance to care for the children. If, he said, the father showed himself unfit or unwilling, or in the past had been unfit or unwilling, to care for the children, then the mother's sisters would be awarded care of the children. He said based on the father's past behavior, including failure to pay child support and adequately offer support and care for the children, custody was awarded to one of the children's aunts. The most difficult question, he said, was how to determine what exactly the appropriate traditions were.
Judge Foughty observed that state courts likely will abide by a traditional law finding of a tribal court. But, he agreed the significant question will be what is the traditional law.
The Committee then recessed for lunch. Preceding lunch, Judge DogEagle offered a traditional prayer for the health and continuing recovery of Chair Erickstad.
Federal Citation System
Following lunch, Chair Foughty called on Rod Trottier, Chief of Police, Turtle Mountain Band of Chippewa, for comments regarding the new citation system developed through the federal magistrate's court. Rod Trottier said the citation system involves providing a citation, including a summons and complaint, to the offender. The offender, he said, is then able to post bond in certain kinds of cases and then forfeit the bond and not appear in court. In the past, he said, a federal case was required to be opened even for minor offenses. Often, he said, that could not occur, but even though the case could not be prosecuted there were still victims of the crime on the reservation. Now, he said, if a non-Indian is apprehended for a minor offense, the citation is issued. He said he then calls the U.S. Attorney and the clerk of court to schedule a hearing. If the matter involves a forfeitable offense, he said, a court date will likely be set farther in the future. He said the defendant is provided a summons and complaint and a bond to be paid is indicated. If permitted in particular cases, he said, the defendant can pay the bond, forfeit, and not appear at the hearing.
In response to a question from Jim Fitzsimmons, Janice Morley said the process would probably not be available for handling such matters as bad checks. Part of the reason, she said, is that there is no direct NSF offense identified under federal law as a misdemeanor. Another factor, she said, is that casino management may not wish to subject patrons to possible federal prosecution for bad checks. She said casinos would often rather use normal check collection avenues.
In response to a question from Judge Medd, Rod Trottier said the bond posted as part of the citation process can be mailed or the defendant can appear in court and pay the bond in person.
Janice Morley said the position of the U.S. Attorney's Office is that law enforcement should contact the assistant U.S. Attorney for the reservation before issuing the citation. That process, she said, is to address the issue of whether there is a mandatory appearance requirement with respect to a particular offense. She noted that the citation process had been used in a domestic abuse situation at Fort Berthold and worked well in that situation.
Jim Fitzsimmons urged that the citation process be used at least with respect to prosecuting no account checks.
Chair Foughty drew Committee members' attention to the matter of two Committee membership vacancies: a public member representative and a tribal court support representative. He noted the importance of considering someone with significant contacts and standing with the tribes. Jim Fitzsimmons suggested Diane Avery, former chief judge of the Fort Berthold District Court, should be considered. He said Lisa Redford, the prosecutor at Fort Berthold, may also be a possible candidate for the tribal court support representative. Committee members also considered Cheryl LongFeather as a possible nominee in light of her regular column concerning Indian affairs in the Bismarck Tribune and her involvement with Sitting Bull College.
IT WAS MOVED BY JIM FITZSIMMONS, SECONDED BY JUDGE OLSON, AND CARRIED UNANIMOUSLY THAT THE COMMITTEE SUBMIT THE NAMES OF DIANE AVERY AND CHERYL LONGFEATHER TO THE CHIEF JUSTICE FOR CONSIDERATION FOR THE PUBLIC MEMBER VACANCY.
IT WAS MOVED BY JIM FITZSIMMONS, SECONDED BY JANICE MORLEY, AND CARRIED UNANIMOUSLY THAT THE COMMITTEE SUBMIT THE NAMES OF LISA REDFORD AND MARILYN KARY TO THE CHIEF JUSTICE FOR CONSIDERATION FOR THE TRIBAL COURT SUPPORT REPRESENTATIVE POSITION.
No further business appearing, the meeting was adjourned at 2:10 p.m.
Jim Ganje, Staff