Theresa Snyder, Tribal Liaison, Department of Human Services; Board of Directors, Native American Training Institute
Cheryl Kulas, Executive Director, Indian Affairs Commission
Jonathan Byers, Office of Attorney General
Bob Helton, Bureau of Criminal Investigation
Rick Hoekstra, Treatment Programs Manager, Department of Corrections and Rehabilitation
Christine Hogan, Executive Director, State Bar Association
Lawrence King, Zuger Kirmis & Smith
Mike Schwindt, State Child Support Enforcement Office
Following the evening dinner and discussion on March 6, Chair Foughty called the March 7 meeting to order at 9:30 a.m.
Indian Child Welfare Act - Training and Enforcement
Chair Foughty welcomed Theresa Snyder, member of the Board of Directors, Native American Training Institute (NATI), and Tribal Liaison, Department of Human Services, for comments regarding ICWA related training issues.
Theresa Snyder explained that NATI resulted from a collaborative effort among the tribes in the state, the private sector, and state government. The objective, she said, was to address common child welfare issues by providing culturally relevant training and curriculum packages for professionals working with Native American children and families. She noted that a recent study of North Dakota's compliance with ICWA suggested there was a lack of uniformity in ICWA-related forms used in the counties, that there was a need for greater collaboration between the counties and the tribes, and that training for expert witnesses was needed. In light of these concerns and following extensive discussion, she said, NATI arranged a conference regarding ICWA issues. The result, she said, was development of a manual ("ICWA Manual for North Dakota Practitioners") to help address questions regarding the Indian Child Welfare Act. She said an information brochure for families was also created. She said a second conference was held and was equally successful.
With respect to the Department of Human Services, Theresa Snyder explained that in 2001 a committee was established to develop cultural training material and resources to improve delivery of services. She said the committee conducted a survey of staff and affiliates to determine cultural training needs. Based on the survey results, she said, the committee contracted with NATI to develop a guidebook to provide a basic understanding of tribes within the state. She said the guidebook - "Journey to Understanding: An Introduction to North Dakota Tribes" - is now available and used throughout the department and area human service centers.
With respect to the most recent ICWA conference, Marilyn Kary noted that Chief Justice Gerald VandeWalle addressed the conference and discussed the importance of adequate training programs for judges, guardians ad litem, state's attorneys, and lawyers. She said the possibility of a program specifically for these groups is being considered. She said NATI will also conduct meetings with social service workers and the tribes to enhance collaborative efforts.
Judge Jones emphasized that NATI is well-respected and has earned a national reputation. He said it is important that judges establish a training relationship with NATI.
In response to a question from Chair Foughty regarding training issues, Lanny Serrano said localized training is important, particularly training directed at the "nuts and bolts" of what must be done under ICWA and how it is to be done.
Judge Foughty stressed the importance of education concerning the basic requirements of the law and then the development of local protocols to ensure the law is implemented in good faith.
In response to a question from Judge Jones, Judge Foughty said guardians ad litem are not required to have ICWA training before representing an Indian child.
Lanny Serrano said that he will, in his retirement, be supervising a program for lay guardians ad litem with respect to deprivation matters. He said he would work on developing ICWA training for the program. Judge Foughty urged that defense counsel be included in the training because they often serve as guardians ad litem.
Judge Medd suggested that an ICWA checklist for judges would also be helpful.
Sex Offender Registration - Sharing Information between State and Tribes
Chair Foughty next welcomed Jonathan Byers, Office of Attorney General, and Bob Helton, Bureau of Criminal Investigation (BCI), for comments concerning sex offender registration practices.
Bob Helton explained that when a defendant is convicted of a sex crime or a crime against a child, the defendant is required to register with law enforcement. He said the defendant signs, either in court or upon release from a detention facility, a document indicating awareness of the registration requirement and is required to provide copies of the registration form to local law enforcement, where the defendant is photographed and fingerprints are taken. He said that when the defendant signs the document indicating awareness of the registration requirement, copies of that document are submitted to BCI, which in turn provides copies to law enforcement agencies in the area in which the defendant has indicated an intention to take up residence.
Jonathan Byers noted that the defendant is required by law to register with local city or county law enforcement agencies. There is no requirement, he said, that the defendant register with tribal or BIA law enforcement agencies.
In response to a question from Judge Jones, Jonathan Byers said a defendant is required to register if convicted in federal court of an offense equivalent to those identified under state law. Judge Jones noted that in his experience, tribes are not receiving notices of registration from county sheriffs.
Jan Morley observed that federal criminal judgments include a requirement that the defendant register as required by state law. It is identified, she said, as a condition of the defendant's sentence.
Jim Fitzsimmons wondered how the state would enforce the registration requirement if the defendant were to move onto a reservation.
Judge Foughty noted that state law requires different kinds of notices to be provided depending on the risk (low, moderate, high) associated with the offense for which the defendant was convicted. Jonathan Byers agreed and explained that if the risk associated with an offense is considered "low", for example, notice will only be provided to the victim. Judge Foughty wondered how this differing approach to the notice requirement might affect sharing information with tribes.
Jonathan Byers said that in order for the risk assessment process to work effectively, more information is often needed and sometimes tribes may have relevant information. Consequently, he said, there is not only a concern about ensuring tribes receive appropriate information concerning registrations, but there is also an occasional need for the state to obtain relevant information from the tribes. An additional complication, he said, is that prior tribal offenses may not be reflected on the state or federal reports that are used in the assessment process.
Judge Jones suggested that if federal criminal judgments include references to complying with state registration requirements, then perhaps tribal courts should require defendants to report to county sheriffs.
Judge Medd suggested the possibility of the county sheriff providing registration information to tribes in the sheriff's county. Jonathan Byers agreed that could be one approach. Another, he said, might be for a quarterly list of registrants to be circulated to the tribes.
Jan Morley emphasized that if tribes are not receiving relevant information from the state or federal government, the tribes may be reluctant to provide information. Bob Helton agreed it is important to pursue methods of improving communication.
In response to a question from Judge Foughty, Bob Helton said tribes can request the quarterly listing of registered sex offenders by contacting BCI at 328-5500. He noted also that following the current legislative session there will be training sessions for law enforcement and it will be emphasized that sheriffs should provide information to tribes if there is a reservation located in their county.
Judge Foughty wondered if there is a particular tribal entity that would be the most appropriate recipient of the information. Judge Conklin said the tribal court should receive a copy of the information. Jonathan Byers noted that in each of the other states there is a designated agency that receives registration information. He said registration information could easily be provided to each tribe if the tribes were to designate a person or entity to receive the information. Bob Helton suggested that tribes be selective in identifying entities to receive the information to ensure that it is received by those that can make good use of the information.
State Probation and Parole - Update on Activities
Chair Foughty next welcomed Rick Hoekstra, Treatment Programs Manager, Department of Corrections and Rehabilitation, for an update on activities and programs within the state Field Services Division (probation and parole).
Rich Hoekstra explained that the division is striving to be more proactive in the development of new programs and approaches to serve the needs of probationers and parolees. Within the prison system, he said, a case planning process is implemented at the outset for inmates and a targeted completion date for the program is identified. He said a rehabilitation and recovery program has been implemented at Jamestown, which has 25 beds currently limited to male inmates. He said the program will provide services to those with an addiction history or a history of domestic assault, terrorizing, or assault on law enforcement. Many times, he said, these kinds of behaviors are associated with chemical dependency. He said the typical length of treatment is one hundred days.
With respect to Indian inmates, Rick Hoekstra said the division is seeking authority to give inmates a short furlough back to the reservation community once they have worked through the appropriate phases of a parole plan and secured support in the community. The inmate, he said, would be required to report back to the program before ultimately being discharged.
Judge Foughty noted that in the drug court model an assessment is made concerning the environment to which the person would or might return. The concern, he said, is that the person not return to a situation similar to the one that initially caused the problems. He asked whether the division conducts a similar kind of assessment before releasing an inmate. Rick Hoekstra said the division will often review similar kinds of risk factors and sometimes will direct a person to a different area or environment. He noted that the division has implemented a community placement program, which involves an inmate being released into the community and supervised by staff. The person, he said, is technically an inmate, but is treated like a probationer/parolee. The challenge for Indian inmates, he said, is finding a place of support on the reservation. If at all possible, he said, the division would like to do a better job of considering options for placing Indian inmates in the reservation community.
Judge Jones noted that the Sisseton-Wahpeton Tribe had approached the state (South Dakota) and suggested, instead of committing a tribal member to the penitentiary for a third, fourth, or fifth DUI, that the state refer the person to the tribe's treatment court as a condition of a suspended sentence. So far, he said, 22 tribal members have been returned to the treatment court. He wondered whether a similar approach could be considered in North Dakota where tribes have a treatment or wellness court.
Legal Education Programs Concerning Tribal Court Practice
Chair Foughty then welcomed Christine Hogan, Executive Director of the State Bar Association, and Lawrence King, an attorney with the Bismarck law firm of Zuger Kirmis & Smith, for comments concerning possible legal education programs regarding tribal court practice and Indian law issues.
Christine Hogan explained that the Association each year generally sponsors approximately 12 interactive video programs and approximately 5 day or day and a half seminars. She said the day to day and a half seminars are obviously the more expensive, while the interactive video programs are less expensive and more flexible.
Lawrence King said the last tribal court practice seminar, for which he was program chair, was held about six years ago. The objective, he said, was to assemble the chief tribal judges from each reservation to address differences in the jurisdictions. He said lawyers are often unfamiliar with tribal court rules and procedures, which is aggravated by difficulty in obtaining current codes and rules. He said he would prefer an education program that addresses basic information concerning practices in each tribal jurisdiction, which could include presentations from representatives of each of the tribal courts.
Jim Fitzsimmons said his perception is that over the last decade the number of lawyers licensed in tribal courts has declined and wondered why that would be the case when the kinds of issues involving tribes are increasing. Lawrence King said unfamiliarity could be one reason. Another, he said, might be the lack of predictability that results from not having access to earlier tribal court decisions and settled procedures. He noted that many lawyers will look to a jurisdictional issue to get a client out of tribal court, rather than continue to litigate in the court.
Jim Fitzsimmons suggested the possibility of a free one-day seminar aimed at enhancing lawyers' familiarity with tribal courts and Indian law. Christine Hogan noted that a day or day and a half seminar usually requires at least four months' advance planning. Lawrence King wondered whether there would be any benefit in conducting regional seminars
Marilyn Kary emphasized that lawyers need to know the organizational structure of tribal government and tribal courts, as well as how tribal courts operate.
Judge Foughty said he would envision a program directed at the structure of tribal court, appellate processes, and issues concerning access, practice, and procedure. He said a panel perhaps could be used to provide a general overview of Indian law issues. Then, he said, each tribal court could give a presentation concerning practice and procedure issues in the particular court. Jim Fitzsimmons encouraged including a segment on Rule 7.2 of the Rules of Court, which governs the recognition and enforcement in state court of a tribal court judgment. He said many lawyers, and some judges, are not familiar with the rule's requirements.
Christine Hogan said the Association would very much like to sponsor an appropriate program concerning tribal court practice and Indian law issues. But, she said, assistance would be needed to ensure the program is properly structured and focused. Following discussion, the following Committee members agreed to serve as contacts for developing a program: Judge Conklin, Judge Miner, Marilyn Kary, and Judge Foughty. It was suggested that Michelle Rivard and Judge Marcellais would also be good resources.
Child Support -- Issues and Forms
Chair Fought drew attention to Attachment C (February 28, 2003) - Instructions and forms for filing foreign judgments for recognition in Spirit Lake Tribal Court, which were developed by Michelle Rivard. He said the forms would be useful in securing enforcement in tribal court of state court orders for child support. He said he would likely distribute the forms throughout the Northeast judicial district.
Carla Marks asked whether any other tribal courts had developed similar forms. Judge Conklin said there are procedures for recognition of foreign judgments in the Fort Berthold District Court, but forms have not been developed.
In response to a question from Judge Jones, Judge Conklin said she usually orders a tribal member to pay child support to the tribal court and the money is then transmitted to the state child support disbursement unit. Judge Jones observed that that would be an appropriate procedure, particularly in cases in which there is a dispute concerning whether the tribal member has paid the child support and state records may not reflect a payment.
Judge Jones asked how child support enforcement is handled if the obligor is employed, for example, by Indian Health Services or the Bureau of Indian Affairs. Mike Schwindt responded that if his office is working with a state income withholding order, the order will be issued to IHS, although issuance of the order to the BIA is less certain. Judge Miner noted that she has had difficulty with IHS honoring her income withholding orders.
Mike Schwindt noted that it now appears that federal regulations concerning child support enforcement and tribal programs, which were anticipated in the spring or summer, will not be issued until sometime in the fall. He additionally noted that the National Child Support Enforcement Association will be conducting a conference in Orlando, Florida in August which will include a series of presentations on working with tribes, developing tribal/state partnerships, and discussing methods for enhancing cooperation between state and tribal governments. Within North Dakota, he said, the Family Support Conference will be held in May and will include a component on tribal and state jurisdiction. Panelists, he said, will include Judge Jones, and Jim Fleming from the state child support enforcement office.
Mike Schwindt recalled earlier Committee discussions regarding the lack of information concerning child support payments made to tribal court and the need for sharing payment information between the state and tribes. He explained that he had recently sent letters to tribal officials offering to provide information to tribes regarding child support payments made through the state disbursement unit since November 1998. He noted his offer was in response to concerns about state child support enforcement action being taken when, in fact, the person had been making payments to the tribal court. He also stressed the importance of receiving payment information from the tribes so that state records can be updated.
In response to a question from Judge Jones, Mike Schwindt said his office is prepared to provide a computer to the Standing Rock Sioux Tribe which will provide access to all child support related information if the state can obtain a cooperative agreement with the tribe. Such an agreement, he said, might be similar to the one reached between Oklahoma and the Chickasaw Nation.
Cheryl Kulas, Executive Director of the Indian Affairs Commission, said one of the roles of the Commission is to facilitate the formation of cooperative agreements between the state and tribes. She said she has discussed with state child support personnel the possibility of assisting in achieving an agreement for enforcement of tribal support orders through the state system.
Mike Schwindt noted that tribes will likely be receiving a survey from the National Child Support Enforcement Association concerning the manner in which the association might be able to assist tribes in addressing child support enforcement issues. Additionally, he said the association is currently considering the addition of a tribal member to the association's board of directors.
Issues and Projects
Chair Foughty then invited general discussion of other issues and possible future projects for the Committee.
Jan Morley noted that the Native American Issues Subcommittee of the U.S. Attorney's office has been discussing a possible amendment to federal law which would provide that a third act of domestic violence occurring on the reservation would be treated as a felony. She said convictions in state and tribal court would be considered in determining whether there was a third offense. She explained that U.S. Attorney Drew Wrigley has expressed the desire for consultation with the tribes to determine whether there is an alternative through tribal courts to creating a new federal offense and whether the U.S. Attorney's office can offer any assistance to tribal courts in addressing domestic violence issues. She said there is also a concern that such a new federal law would amount to an unfunded mandate in that it would require appointment of counsel in tribal cases involving domestic violence. She said the subcommittee is also discussing a possible change to the federal Mann Act to include as a federal offense crossing onto a reservation for purposes of committing a sexual act with a juvenile. She suggested U.S. Attorney Wrigley be invited to a future meeting to discuss these proposals as well as other issues that may be of interest.
Judge Jones drew attention to a working draft of a state ICWA law he had prepared. He noted the Committee's earlier discussion concerning the possibility of considering a state ICWA law for North Dakota. He said the issue of whether ICWA is constitutional may be an issue in a Cass County case currently on appeal to the North Dakota Supreme Court, and the issue has been raised in other states.
Judge Foughty said the Committee should exercise caution with respect to possible legislation. However, he said, Committee members have skills and knowledge that could assist in framing the issues and perhaps outlining a possible solution. Jim Fitzsimmons suggested the Committee could develop a draft for such use as someone may wish to make of it. Judge Foughty suggested the possibility of also obtaining Tara Muhlhauser's comments on the draft.
Chair Foughty said the draft would be included in material for the next meeting for general Committee discussion.
Judge Jones drew attention to a recent order of the Minnesota Supreme Court which rejected a proposed rule addressing recognition and enforcement of tribal court orders and judgments. He said the proposed rule resulted from a tribal and state court forum process similar to that undertaken earlier in North Dakota and represented a significant amount of work on the part of tribal and state court representatives. Nevertheless, he said, the Minnesota Supreme Court rejected the proposal, while at the same time finding that the issue was one that merited further discussion. A copy of the order is attached as an Appendix.
Chair Foughty informed the Committee that Lanny Serrano is retiring from his position as Director of Juvenile Court for the South Central judicial district and as a result will be resigning from the Committee. Lanny's departure from the Committee, he said, will leave a vacancy with respect to a state court support representative. Committee members agreed there is substantial benefit in having a representative from the juvenile court on the Committee.
After discussion, it was moved by Judge Medd, seconded by Judge Jones, and carried unanimously that the Committee forward the names of Karen Olson and David McGeary to the Chief Justice for consideration in appointing a new state court support representative.
Chair Foughty next noted that Judge Olson's retirement from the bench will result in a vacancy for a state court judge on the Committee. He noted that Judge Olson had suggested Judge Bill McLees, who has also served as a tribal judge, as a possible replacement.
After discussion, it was moved by Jim Fitzsimmons, seconded by Jan Morley, and carried unanimously that the Committee recommend Judge McLees to the Chief Justice for consideration in appointing a new state court judge member to the Committee.
Committee members extended their thanks and appreciation to Judge Olson and Lanny Serrano for their commitment over the years to the Committee's work.
Chair Foughty drew attention to the minutes of the Committee's October 10 - 11, 2002, meeting. Jan Morley noted the reference to "special" prosecution on page 10, last paragraph, should be "selective" prosecution. Judge Miner said the reference on page 4, fifth paragraph, to people appearing in Standing Rock tribal court being represented by a lawyer or advocate should reflect that it is those in criminal cases that are generally represented by a lawyer or advocate. Two spelling errors in the list of members present were also noted.
It was moved by Judge Medd, seconded by Marilyn Kary, and carried unanimously that the minutes, with the noted corrections, be approved.
There being no further discussion, the meeting was adjourned at 2:00 p.m.
Jim Ganje, Staff