MINUTES
COMMITTEE ON TRIBAL AND STATE COURT AFFAIRS
Kelly Inn, Bismarck
July 17-18, 1997
Following dinner, Chair Erickstad called the Committee meeting to order at 7:20 p.m., July 17, 1997, at the Kelly Inn, Bismarck, North Dakota.
| Members Present Surrogate Judge Ralph J. Erickstad, Chair | Members Absent Leonica Elkire |
Guests
Mildred J. Berryhill, Magistrate, Three Affiliated Tribes
Karen White Owl-Simmonds, Court Administrator, Three Affiliated Tribes
Kermit Heart, Magistrate, Three Affiliated Tribes
Kelly Stoner, UND Indian Law Clinic; Spirit Lake Juvenile Prosecutor
Myra K. Hunt, Clerk of Court, Spirit Lake Tribal Court
Judge Cavanaugh summarized recent activities of the Spirit Lake Tribal Court and noted that criminal caseload for the court had increased noticeably. She described difficulties resulting from the lack of adequate correctional facilities.
In response to a question from Judge Medd, Judge Cavanaugh said the tribal court is computerized. She said Byrne Grant funds recently received enabled the tribal court to contract with the UND Law School's Native American Clinical Law Program to assist in juvenile prosecutions. She said a juvenile intake officer has also been hired and these recent changes mark the first time the juvenile court has had actual staffing besides the juvenile judge.
Kelly Stoner, an attorney with the UND Indian Law Project, explained that she spends two days per week at Spirit Lake and, along with law students participating in the project, conducts arraignments, informal adjustments, trials, and sentencing hearings.
In response to a question from Chair Erickstad regarding matters for Committee discussion, Kelly Stoner recounted a recent situation involving a decision on termination of parental rights by the Spirit Lake Tribal Court. She said the mother of a child had placed the child, when only a few days old, with another family and had apparently relinquished her parental rights, although there had not been a formal determination on that issue. She said the tribal court subsequently concluded that the mother had not, in fact, terminated her parental rights, a decision that she, as guardian ad litem for the child, then appealed to the Intertribal Court of Appeals. The Court of Appeals, she said, held that parental rights had been terminated and that the child should be returned to the family with whom the child had originally been placed. Some time after, she said, the child and the biological mother were picked up in Devils Lake by police officers and when the circumstances became clear the police contacted the district court regarding disposition of the child. She said the Intertribal Court of Appeals order was faxed to the police department, but, for some reason, the child was not held. Instead, she said, the child was released to the biological mother, whose parental rights had been terminated, and the child was then taken out of the jurisdiction to another reservation. She said it was suggested that the court of appeals order should be filed under Rule 7.2, NDROC, to obtain state recognition and enforcement. However, she said she regards the order as a custody order and under federal law such orders are entitled to full faith and credit. She noted that the court of appeals, when reversing the tribal court on the termination issue, had also ordered reinstatement of an earlier order granting custody of the child to the family with whom the child had been placed.
B.J. Jones said there is confusion in this area when a state court is presented with a tribal order that has not been registered, but is also presented with an emergency situation. Under the Indian Child Welfare Act, he said, a pre-adoptive placement order must be honored by state courts. In this case, he said, the Turtle Mountain Tribal Court is not honoring the Spirit Lake Tribal Court custody order. He said, while Rule 7.2 provides a mechanism for state recognition of tribal court orders, there is no similar way to ensure that tribal courts recognize the orders of other tribal courts. He suggested the possibility of pursuing adoption of an inter-tribal child custody jurisdiction act, which could provide a framework for recognition of custody orders between tribes.
Kelly Stoner said it would also be useful to know what exactly is required or expected procedurally to ensure state recognition of tribal court orders. Judge Medd said the procedural requirements for filing an order for recognition are workable. However, he said the problem arises in emergency situations in which some action must be taken but there is not enough time to comply with filing requirements. Additionally, he said, Rule 7.2 is directed toward recognition of civil judgments and orders, typically involving creditors, and very awkwardly applies to something like custody orders. Similarly, B.J. Jones said Rule 7.2, as presently written, would not work well as a mechanism for recognition of domestic violence protection orders. He suggested the possibility of amending Rule 7.2 to permit recognition and enforcement of a tribal court order in an emergency situation if there is, for example, a prima facie showing that the order is valid.
Following further discussion, the Committee stood in recess at 8:50 p.m.
Chair Erickstad reconvened the meeting of the Committee at 9:30 a.m., July 18, 1997, at the Kelly Inn, Bismarck.
Members Present Members Absent
Surrogate Judge Ralph J. Erickstad, Chair Leonica Elkire
Judge Joel Medd Jim Fitzsimmons
Lannon Serrano Judge Donovan Foughty
B.J. Jones Judge Vance Gillette
Judge Noreen Cavanaugh Dennis Johnson
Judge Dwight Kautzmann
Judge Janice Morley
Judge Nels Olson
Nick Spaeth
Judge Michael Swallow
Pamela Tamayo Stenehjem
Guests
Heidi Heitkamp, North Dakota Attorney General
Mildred J. Berryhill, Magistrate, Three Affiliated Tribes
Karen White Owl-Simmonds, Court Administrator, Three Affiliated Tribes
Kermit Heart, Magistrate, Three Affiliated Tribes
Kelly Stoner, UND Indian Law Project
Myra K. Hunt, Clerk of Court, Spirit Lake Tribal Court
Jo Eastvold, Domestic Violence Prevention Coordinator, Bureau of Criminal Investigation
Cindy Schmalz, Criminal Records Analyst, Bureau of Criminal Investigation
Cher Thomas, Computer Technician, Bureau of Criminal Investigation
Bonnie Palacek, North Dakota Council on Abused Womens Services
Rick Hoekstra, Division of Parole and Probation
Theresa Grant, Native American Liaison, Division of Parole and Probation
Domestic Violence Protection Orders
Chair Erickstad called on Bonnie Palacek, North Dakota Council on Abused Womens Services, for comments concerning recognition and enforcement of domestic violence protection orders and the application of full faith and credit under the federal Violence Against Women Act, 18 USC 2265. A copy of Ms. Palacek's remarks is attached as Appendix A. She also distributed the following: an analysis of the federal Act's full faith and credit provision developed by the Full Faith and Credit Project of the Pennsylvania Coalition Against Domestic Violence; a form and accompanying rationale developed by the Pennsylvania Coalition to expedite implementation of full faith and credit recognition of orders; and a comparison of North Dakota tribal and state provisions regarding domestic violence. This material is also included in Appendix A.
With respect to the Pennsylvania form, Ms. Palacek explained that it is attached to the domestic violence protection order and certifies that the issuing court had jurisdiction, that the respondent was afforded notice and an opportunity for a hearing, and that the order was issued in compliance with the full faith and credit provisions of the federal law. Among other things, she said, the certification form could make it unnecessary to serve the respondent a second time to obtain recognition in a foreign court. The form, she said, would also give law enforcement the assurance that they were in fact enforcing a valid order.
With respect to a central registry of domestic violence protection orders, B.J. Jones said the Dakota Territory Chairmen's Council had recently received a grant to develop a central registry of tribal court protection orders on the Internet. He wondered whether there had been any contact with state officials about joining in that effort.
Judge Medd said the Northeast Central district judges have struggled with the issue of effective enforcement of foreign protection orders. He said the crucial issue is prompt enforcement of the order by the police, but the procedure to ensure that objective is uncertain. He said the Cass County procedures were reviewed but appear too cumbersome. The cover certificate developed in Pennsylvania, he said, may be an alternative to consider.
Chair Erickstad next called on Jo Eastvold, Domestic Violence Prevention Coordinator, Bureau of Criminal Investigation, for comments.
Jo Eastvold said she is presently visiting with law enforcement agencies around the state to find out how well the central warrant system is working in collecting and disseminating protection order information. She said the INSHIP Project within BCI is working on upgrading the central warrant system with respect to registering domestic violence protection orders and gathering associated information. She then distributed a cover sheet, attached as Appendix B, which was developed to implement entry of protection order information into the central warrant system. She said the central warrant system is a "pointer" system which requires supplying certain identifying information before an order or warrant can be entered. For example, she said, a birthdate and social security number are needed as identifiers for a respondent and without that information the order cannot be entered into the system. The cover sheet, she said, serves the purpose of obtaining and providing that information.
In response to a question from B.J. Jones, Ms. Eastvold said the central warrant system currently is not available to tribal courts because they are not part of that system. However, she said, BCI is very interested in working with tribal courts to make the system available.
In reviewing operation of the system with respect to protection orders, she said the two most common problems are that cover sheets are not attached to protection orders and often the cover sheet does not have the necessary identifying information. Additionally, she explained that the sheriff's departments are set up to enter the protection order information into the system. However, she said, orders are not entered until a violation of the order could result in an arrest. Consequently, she said, the order is not entered until after service is made. She emphasized the importance of including the required identifying information, preferably a date of birth, in the protection order, which will avoid wasted time if law enforcement must try to secure the information independently when attempting to enforce the order.
Jurisdictional Issues Regarding the Circle of Nations School
Chair Erickstad welcomed Attorney General Heidi Heitkamp for comments on jurisdictional issues involving the Circle of Nations School in Wahpeton.
Attorney General Heitkamp recounted questions that had arisen in recent years concerning provision of juvenile court services to children located at the school. She said a review by the Attorney General's Office of the juvenile population at the school indicated the school was ill-equipped to serve children placed there who were emotionally disturbed, who suffered from fetal alcohol syndrome, or who had been adjudicated delinquent. The fundamental question, she said, became one of whose responsibility it was to provide adequate juvenile court services. She said the Attorney General's Office took the position that incidents at the Circle of Nations School should be treated no differently than incidents at other juvenile facilities in the state; a position, she said, that is supported by a state district court order and a Department of Interior Solicitor's Opinion, both of which conclude the state has jurisdiction at the school. She noted, however, that the Solicitor's Opinion is seriously opposed by tribes within North Dakota as well as tribes across the country. Once difficulties at the school became clear, she said, her office undertook to begin a dialogue with the school administration and the BIA to determine how the issues could be cooperatively resolved. She suggested, then, that the school could contract to provide juvenile justice services and personnel, thereby separating discipline issues from therapeutic responsibilities. She said the thought was that the state could then concur in the handling of minor juvenile matters in this fashion. She said the state would then have been involved in incidents involving Circle of Nations students occurring outside the school facility, while the tribes would be involved if incidents arose within the facility. Notwithstanding that discussion, she said, the effort ran aground. She said the last suggestion by tribal chairmen involved in the process was that every tribal council represented at the school must agree before a valid jurisdictional agreement could be devised. Realistically, she said, that will not happen.
In summary, Attorney General Heitkamp said her position is still that the state should provide juvenile court services because the state has jurisdiction over the school. School officials, she said, have arranged to have juveniles adjudicated through the Sisseton/Wahpeton Tribal Court because it was thought necessary services were not being provided by the state.
Chair Erickstad described the possibility that the juvenile court supervisor in the area may not be willing to conduct hearings on complaints involving juveniles at the school unless the juvenile is accompanied by an attorney or a parent or legal guardian. Attorney General Heitkamp responded that she is aware that juvenile court policy in North Dakota has been very solicitous of involvement by parents or guardians when dealing with juveniles. She agreed it is good public policy to emphasize parental involvement and that policy should be applied when an Indian child is involved just as it would be applied if a non-Indian child were involved. For that reason, she said, she had suggested the school should stand in place of the child's parent or guardian in these proceedings.
Lannon Serrano asked what kinds of services the Circle of Nations School was expecting to be provided and what kinds of offenses were involved. Attorney General Heitkamp gave the example of two juveniles smoking marijuana and the desire that the juveniles be placed in detention or other deterrent measures imposed. She observed, and Lannon Serrano agreed, that many juveniles cited for smoking marijuana, for example, are initially released to the custody of parents, rather than placed in detention. Consequently, she said, there has been a conflict between what the school expects and what ordinarily occurs in the state juvenile process for certain offenses. She emphasized the need to find a solution so that adequate services are available to juveniles at the school. She said she will pursue another attempt to clarify the situation and seek a resolution and will keep the Committee informed of her progress.
Federal Prosecution of Indian Country Offenses
Chair Erickstad welcomed Clare Hochhalter, Assistant United States Attorney, for comments concerning procedures in the U.S. Attorney's Office regarding prosecution of offenses occurring in Indian country. An outline of Mr. Hochhalter's remarks is attached as Appendix C.
B.J. Jones asked how a situation would be handled if a person committed an offense on the reservation and is later found by the federal court to be incompetent to stand trial. Clare Hochhalter said the court could order a psychological or psychiatric evaluation. Typically, he said, the person is sent to the federal medical center in Rochester for evaluation and is then required to be returned to appear before the court for a decision on whether to commit the person for a longer time or proceed with the trial.
In response to a question from Judge Cavanaugh, Clare Hochhalter said the objective is to make a decision as quickly as possible regarding whether to take a case for prosecution after it has been reported by a tribal or BIA investigator. Sometimes, he said, the decision is delayed if additional information from the investigator is needed.
Parole and Probation
Chair Erickstad welcomed Rick Hoekstra, Program Coordinator, and Theresa Grant, Native American Liaison, for comments regarding recent activities of the Division of Parole and Probation.
Rick Hoekstra explained that the Native American liaison position held by Theresa Grant was initially funded under a grant and the Division has applied for grant funding through 1998. After that time, he said, the Division intends to seek continued funding for the position from the general fund.
Theresa Grant said she continues working with Native American inmates at the penitentiary and is now involved in developing a vocational rehabilitation program through the Turtle Mountain Community College, which has been authorized to provide services to Turtle Mountain inmates at the penitentiary. She said training and services provided in the program will aid greatly in the inmate's transition back to the reservation community. The ultimate goal, she said, is to have similar programs for all Native American inmates. She distributed a brief brochure, attached as Appendix D, describing the Medicine Wheel Program, which provides a traditional approach to rehabilitation of inmates with substance abuse problems. She said the program uses the 12 steps of Alcoholics Anonymous and incorporates native spiritual concepts to aid inmates in maintaining sobriety and seeking a spiritual, sober life. She explained that she has also been assigned to work with the Spirit Lake Nation in establishing a traditional domestic violence prevention program. She said the program would also work with victims of crime other than domestic violence.
Child Support Enforcement Code Project
At the request of Chair Erickstad, B.J. Jones explained that North Dakota had recently received a grant from the federal Department of Health and Human Services to develop tribal child support codes. He said the Tribal Judicial Training Institute will be assisting in the project. He said the initial objective is to establish a code task force on each of the reservations.
No further business appearing, the meeting was adjourned at 2:10 p.m.
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Jim Ganje, Staff