|Members Present |
Judge Donovan Foughty, Chair, Northeast Judicial District
Judge Mary Cavanaugh, Spirit Lake Nation Tribal Court
Judge El Marie Conklin, Fort Berthold District Court
Judge B.J. Jones, Sisseton-Wahpeton Tribal Court
U.S. Magistrate Dwight Kautzmann
Carla Marks, Pierce County Clerk of District Court
Judge Joel Medd, Northeast Central Judicial District
Judge Lorrie Miner, Standing Rock Sioux Tribal Court
Janice Morley, U.S. Attorney's Office
Judge Everett Nels Olson, Northwest Judicial District
Lanny Serrano, South Central Judicial District Juvenile Court
|Members Absent |
Judge Sharon Malaterre, Turtle Mountain Tribal Court
|Others Present |
Marilyn Kary, Child Protection Services, Standing Rock Sioux Tribe
Cheryl LongFeather, Native American Training Institute
Michelle, Rivard, Chief Prosecutor and Tribal Attorney, Spirit Lake Nation
Chair Foughty called the meeting to order at 9:00 a.m. and welcomed Committee members to the meeting. He noted that the Committee had not met in some time and the major order of business was to discuss how the Committee should proceed with its future activities. He said there were also membership vacancies that would require attention.
Staff said the Committee had two vacancies with respect to tribal court support representatives. He noted that, in the past, Committee members in those positions had consisted of tribal court clerks, court administrators, and prosecutors. He said there is also one state judge vacancy and one public member vacancy.
With respect to the tribal court support representatives, Judge Miner suggested Pam Hoffman, who serves as civil clerk for the Standing Rock Sioux Tribal Court, be considered. Judge Jones recommended Michelle Rivard also be considered. He noted that Ms. Rivard had attended this meeting and previous meetings without being a member and her interest in the work of the Committee should be noted.
It was moved by Judge Miner, seconded by Judge Jones, and carried unanimously that the Committee recommend Pam Hoffman and Michelle Rivard to the Chief Justice for appointment to the Committee as tribal court support representatives.
It was moved by Judge Jones and seconded by Jan Morley that the Committee recommend Marilyn Kary to the Chief Justice for appointment to the Committee as a public member.
With respect to the public member vacancy, Chair Foughty noted that he had received an email from Brad Peterson with Legal Assistance of North Dakota expressing his interest in serving on the Committee. Judge Jones suggested Brad Peterson's name could also be submitted, but perhaps Marilyn Kary could be recommended for appointment due to her experience with the Indian Child Welfare Act and child protection services. Judge Kautzmann said he would not participate in the vote because it seemed inappropriate to submit names for possible appointment to the Committee, but at the same time express a preference for one person.
With the consent of the second, the motion was withdrawn.
It was moved by Judge Jones, seconded by Jan Morley, and carried that the Committee submit the names of Brad Peterson and Marilyn Kary, along with biographical information, to the Chief Justice for consideration in appointing a public member to the Committee.
With respect to the state judge vacancy, Jim Fitzsimmons said it would be a great benefit to have a member of the Supreme Court on the Committee. He said a justice serving on the Committee might assist the Supreme Court in obtaining more information about the operation of tribal courts and about Indian law issues generally. Judge Foughty agreed having a justice as a member of the Committee would be beneficial, but he noted that the justices' many commitments might prevent one of them serving. He said there also may be a reluctance on the part of some justices to serve on the Committee because it has, in the past, recommended legislation and, therefore, might be perceived as having a political involvement. Jan Morley observed that the Committee's recommendations have assisted in improving relationships between the tribes and the state, and the Committee has not acted as a political group with a particular agenda. Consequently, she said, there should be no concern for a justice with respect to serving on the Committee.
Michelle Rivard observed that developing legislation appears to be only a small part of what the Committee has done and if the issue were to arise in the future, a justice who is a member of the Committee could elect not to participate.
Judge Kautzmann said another option may be to amend the rule governing Committee membership to provide that a justice could serve as an ex officio member.
Chair Foughty said he would advise the Chief Justice of the Committee's discussion and interest in a justice serving on the Committee. He said if a justice is unable to serve, he would extend an open invitation to all of the justices to attend meetings of the Committee.
State Bar Examination - Indian Law Question
Chair Foughty then drew Committee members' attention to Attachment C (April 4, 2002) - information concerning action taken by the New Mexico Supreme Court in adding an Indian law question to that state's bar examination.
Jan Morley explained that she, along with other representatives from North Dakota, had attended a conference on eliminating bias in the courts which was held in New Mexico. She said the topic of an Indian law question for North Dakota's bar examination was discussed and the North Dakota team concluded it may be worth consideration.
Judge Medd said the rule amendment adopted in New Mexico was a positive step and it should be considered in North Dakota. Judge Jones noted that the New Mexico provision simply adds Indian law as a possible subject that may appear on the bar examination.
Judge Medd suggested, and Committee members agreed, that information be assembled for review at the next meeting concerning the rationale for adding an Indian law question to the North Dakota bar examination and how that could be achieved. With respect to areas of Indian law that would be important to address in a bar examination, Michelle Rivard said lawyers in any state that has a tribal population should have some familiarity with the Indian Child Welfare Act and its application. Judge Jones suggested the need to perhaps limit the scope of a possible Indian law question in North Dakota. For example, he said it is very unlikely that a Public Law 280 issue would arise in the state and, therefore, a question based on it would not be useful.
Chair Foughty then invited Committee discussion concerning the future work of the Committee and areas of interest or concern to tribal and state courts. He noted that the following areas of possible discussion had been identified: the relationship between the Indian Child Welfare Act (ICWA) and the Adoption and Safe Families Act, child support and custody, criminal jurisdiction and prosecution, juvenile issues, civil jurisdiction, full faith and credit recognition of judgments, participation in state jury pools, and development of uniform laws.
Indian Child Welfare Act - Adoption and Safe Families Act
In response to a question from Judge Foughty concerning education for judges, Judge Jones noted a recent conference on ICWA was held in Bismarck. He said the conference served as a training venue for a manual on the Act and it may be useful to include in the manual information about the Adoption and Safe Families Act. It is important, he said, to explore in detail how the two federal laws interact.
Cheryl LongFeather explained that the Native American Training Institute coordinated the recent conference and a manual was presented, although it was prepared primarily for use by social workers. She noted that a common sentiment expressed in conference evaluations was that more ICWA training for state court judges was needed. She said the Institute would be conducting more education programs and would be willing to assist the Committee in devising any recommendations for judicial education programs.
Jim Fitzsimmons observed that awareness of ICWA requirements has increased significantly among social workers. And he noted that district judges in the Northwest part of the state seem to have a good working knowledge of the Act.
Marilyn Mary observed that it is often the attorneys involved in a case that do not have a clear understanding of what is required to comply with ICWA.
Michelle Rivard said that one judge in the Grand Forks area handles the majority of ICWA related cases and there has been notable progress concerning understanding and implementing the Act's requirements. However, she cautioned that with increased knowledge there seems to be an increase in paperwork submitted to the tribes and there is often insufficient staff to handle the workload. Lanny Serrano agreed there is sometimes inadequate tribal staff, which contributes to inconsistent responses from the tribe in ICWA cases.
Judge Jones drew attention to a recent study conducted by Casey Family Programs regarding ICWA compliance in North Dakota. He said it may be useful to review that report. An additional issue, he said, concerns who is an acceptable representative of the tribe in ICWA proceedings. He said it may be beneficial to consider affording a special status to tribal ICWA workers appearing in state court proceedings. Judge Foughty said it would be useful to determine the extent of the problems in the state and if there are certain areas of the state in which there are particular difficulties. Judge Olson said he is unaware of any problems in the Minot area.
Judge Foughty noted there seems to be uncertainty regarding whether an ICWA worker must be accompanied by an attorney when appearing in court. He said he does not require counsel to be present. It may be useful, he said, to consider a rule provision that would allow ICWA workers to speak for the tribes in state court proceedings.
Michelle Rivard emphasized that judges need to be aware of the methods for tribal intervention in ICWA cases, which may vary from tribe to tribe depending on tribal code provisions. For example, she said a petition must be filed with the Spirit Lake tribal court seeking authority for the tribe to intervene. The tribal court, she said, would then issue an order allowing the intervention. It is important, she said, that state court judges have an awareness of whether the tribal intervention is valid.
Judge Jones reiterated the need to develop a common base of information about the relationship between ICWA and the Adoption and Safe Families Act. There are provisions in latter, he said, that may essentially override parts of ICWA. He noted that a manual on the Adoption and Safe Families Act has been developed in South Dakota and it may be useful to review that manual.
Child Support and Custody
Jim Fitzsimmons explained that the state had centralized processing of child support payments in Bismarck. He said the state child support office is enforcing tribal court judgments, but there is considerable uncertainty about how the office is actually obtaining, or being provided, the judgments in the first instance. He suggested a representative from the state child support disbursement unit be invited to a meeting to discuss how tribal judgments are obtained and handled.
Judge Jones observed that the state is continuing to offer to enter into cooperative agreements with the tribes for child support enforcement. Jim Fitzsimmons said it would be useful to know the status of cooperative agreements with North Dakota tribes.
Judge Jones drew attention to the Uniform Interstate Family Support Act, which North Dakota has adopted, and wondered whether the Act permits a tribal court to modify state court child support orders. He noted that tribal courts often receive default state court child support judgments, entered when the obligor did not appear, which establish a substantial child support obligation. When the obligor appears in tribal court to try to modify the order, he said, tribal courts are told that the order cannot be modified by the tribal court because the mother is still living off the reservation. Judge Foughty agreed the tribal court could not modify the underlying order, but could make an "ability to pay" determination and lower the amount to be paid to avoid contempt.
Judge Medd said there may be residual issues concerning hunting and fishing, as well as issues regarding non-Indians and tribal jurisdiction with respect to casino activity.
With respect to habeas corpus petitions to the federal courts, Judge Jones noted that his understanding was that the federal court would not reach the issue of whether someone is illegally detained pursuant to a tribal court order unless the person had exhausted all tribal court remedies. However, he said there was a recent situation involving a non-Indian in which the person did not file an appeal contesting the tribal court order under which he was detained. He said the federal court nevertheless considered the habeas corpus petition filed by the individual. Judge Kautzmann said that in the particular case, the tribal court would not act on the merits of the case. Consequently, he said, the person filed the petition with the federal court alleging that he was a non-Indian, that he could not obtain a hearing, and that the tribal court would not order his release. He said as soon as the tribe received the federal court order for a hearing on the petition, the individual was released.
Judge Jones agreed with the obligation of tribal courts to protect and enforce civil rights, but said if a defendant in tribal court can bypass the tribal court and seek redress in federal court, then tribal courts suffer.
Jan Morley noted that the U.S. Attorney is planning a series of meetings with state's attorneys, the Attorney General, and tribes to discuss various issues concerning law enforcement and jurisdiction. Judge Foughty observed that criminal jurisdiction may also be a useful education topic for state court judges. Judge Medd agreed.
With respect to law enforcement, Michelle Rivard said cross-deputization of county and tribal law enforcement officers has, in practice, become very problematic. She noted that county sheriffs and deputies are not answerable to her as a tribal prosecutor, while she can work with tribal officers to ensure appropriate practices.
Jim Fitzsimmons observed that in the past cross-deputization of county and tribal law enforcement occurred on an individual basis. At some point, he said, the practice evolved to providing blanket cross-deputization for all law enforcement in the area. It would seem appropriate, he said, to provide a mechanism for withdrawing cross-deputization authority from a particular officer if that officer has acted inappropriately.
Judge Kautzmann noted a recent federal court decision by Judge Conmy involving banishment of an individual from the Standing Rock Sioux reservation. He said the tribal court had ordered a person banished and the county sheriff assisted in escorting the person off the reservation. The defendant, he said, subsequently sued in federal court alleging a number of violations under the Federal Tort Claims Act. He said he had initially found the county sheriff to be exempt from liability, but Judge Conmy rejected that determination. He said the case is now on appeal to the Eighth Circuit Court of Appeals and immunity with respect to the county sheriff is a central issue.
Judge Jones noted the situation in which a tribal member purchases a car, for example, off the reservation, returns to the reservation, and then defaults on payments. He wondered whether state judges can direct repossession of the vehicle. Judge Foughty said repossession on the reservation likely cannot be achieved, but North Dakota does have laws authorizing self-help repossession. Michelle Rivard noted that a tribal court order is required if someone seeks to repossess property on the Spirit Lake reservation. Judge Jones said state court orders to repossess property on the reservation are sometimes given full faith and credit by the tribal court.
Michelle Rivard said a problem has arisen recently on the Spirit Lake reservation with respect to county law enforcement serving process on the reservation. She said she has requested that the sheriff send the papers to the tribal clerk and a tribal process server will then serve the papers. She said the sheriff has not, however, abided by her request. Judge Foughty asked that she provide him with the relevant tribal ordinance and any additional necessary information and he would inform county law enforcement of the appropriate procedure.
In response to a question from Judge Olson, Jim Fitzsimmons said there is a paid process server who serves civil papers on the Fort Berthold reservation.
Full Faith and Credit Recognition of Judgments
Judge Jones noted that judgments and orders of the Turtle Mountain tribal court are always enforced in Cass County. He said, however, that the state generally will not criminally prosecute violations of a tribal court protection order.
Judge Foughty said he has never had a tribal court money judgment submitted to his court for recognition and enforcement. With respect to recognition and enforcement of domestic violence protection orders, he said there are a number of issues that may be topics for further discussion.
With respect to enforcement of tribal court custody orders, Judge Olson observed that the order can be filed, but a supplemental order directing the sheriff to enforce the tribal court order will also be necessary. Judge Foughty agreed that in any supplemental divorce proceeding, a separate order directing the sheriff to enforce will be needed.
Jim Fitzsimmons observed that he has used Rule 7.2 of the Rules of Court, which provides for recognition and enforcement of tribal court orders and judgments, to obtain enforcement of orders with respect to divorce cases, workers compensation awards, and employment awards.
Use of the Internet - Lawyer Availability
Judge Medd suggested the possibility of using the Internet to provide information about tribal ordinances and constitutions. He said access to such information could prove useful not only to lawyers and judges, but also to the general public.
Michelle Rivard said copies of parts of the Spirit Lake tribal code are provided periodically on request, with a charge assessed for copying costs. She said tribal codes should not be posted on the Internet without first contacting the tribes for permission.
Judge Olson observed that placing tribal codes on the Internet will also require that someone ensure that the information is properly maintained and kept current.
With respect to availability of lawyers on the reservations, Jim Fitzsimmons said the number of lawyers licensed by the Fort Berthold district court has declined from about seventy-five to about twenty. He wondered whether the decline in lawyers seeking licensure to practice in tribal courts is a general trend and whether tribal courts want attorneys in their courts.
Judge Jones said a fair number of lawyers had been licensed to practice in the Sisseton-Wahpeton tribal court, but the number declined substantially when a higher license fee was imposed.
Judge Cavanaugh said six lawyers have applied for licenses in the Spirit Lake tribal court, but there had been very few in the past. She said tribal advocates are most often used in tribal court and are generally required to be enrolled tribal members. If a person is not an enrolled member, she said, that person must obtain prior court-approval to serve as an advocate.
Judge Miner said there are about forty-five lawyers licensed to practice in the Standing Rock tribal court, and several of them are from out-of-state.
Jim Fitzsimmons said he has been receiving an increasing number of letters from tribal members who need a lawyer but cannot locate one to take their cases. Michelle Rivard noted that many lawyers avoid tribal court because they do not have a clear understanding of tribal court procedures. Too often, she said, lawyers who do come into tribal court conduct themselves inappropriately.
Jim Fitzsimmons suggested the Committee invite Christine Hogan, executive director of the state bar association, to a future meeting to discuss the issue. Committee members agreed.
Judge Medd observed that part of the problem may be attributable to the simple decline generally in the number of lawyers in rural areas.
Jury Pool Participation
Chair Foughty drew attention to Attachment D (April 4, 2002), a letter from Judge Robert Holte to Ron Reichert concerning methods for increasing Native American participation in state jury pools.
Jan Morley noted that normally contempt is an option for a person failing to appear for jury duty. She said that, however, is problematic with respect to a tribal member who has been summoned for jury duty in state court. She said there has also been discussion of using additional information, such as records regarding suspended drivers' licenses, to supplement the information used to develop jury lists.
Judge Foughty observed that he has never had a problem in Benson County with respect to tribal members participating on state juries.
With respect to juror participation in Dunn County, Judge Conklin suggested sending cards to tribal members about the importance of jury service. She said it may also be useful to consider developing a list of volunteers who would be willing to serve on juries.
Committee members agreed the subject should be reserved for further discussion to determine whether there are meaningful ways of enhancing tribal participation in state juries.
Chair Foughty explained that at a recent Sovereignty Symposium in Oklahoma the national Conference on Commissioners on Uniform State Laws provided information indicating the Conference may become more involved in working with tribes to develop uniform laws. He wondered whether tribes would have any interest in pursuing such an effort.
Jan Morley suggested, and Committee members agreed, the next meeting should be at Spirit Lake.
With respect to the Committee's future meeting schedule, Chair Foughty suggested that 3 or fewer meetings, with good attendance, would be sufficient to address issues before the Committee.
There being no further business, the meeting adjourned at 2:15 p.m.
Jim Ganje, Staff