Members Present Judge Donovan Foughty, Chair, Northeast Judicial District Justice Daniel Crothers, North Dakota Supreme Court Associate Judge Jennifer Cross, Spirit Lake Tribal Court (attending on behalf of Chief Judge) Judge William Delmore, Standing Rock Sioux Tribal Court Judge Diane Johnson, Fort Berthold District Court Judge Joel Medd, Northeast Central Judicial District Brad Peterson, Bismarck attorney
Members Absent Judge B. J. Jones, Sisseton-Wahpeton Tribal Court Michelle Rivard Parks, Assistant Director, Tribal Judicial Training Institute Judge Michael Sturdevant, Northeast Judicial District
Others Present Scott Davis, Executive Director, ND Indian Affairs Commission Steven Sitting Bear, ND Indian Affairs Commission James Fleming, State Child Support Enforcement Maj. Michael Gerhart, Field Operations Commander, ND Highway Patrol Sgt. Steven Fisher, ND Highway Patrol Linda Isaacson, Assistant Director, ND Council on Abused Women’s Services Andrew Frank, Staff, Minority Justice Implementation Committee
Chair Foughty called the meeting to order at 10:00 a.m. and welcomed those in attendance.
Following introductions, he drew Committee members’ attention to Attachment B (August 23, 2013)
- minutes of the May 3, 2013, meeting.
It was moved by Judge Medd, seconded by Judge Delmore, and carried that the
minutes be approved.
Federal Criminal Justice Initiatives in Indian Country
Chair Foughty then welcomed Assistant U.S. Attorney Rick Volk for an overview of
Operation Winter’s End - a multi-agency drug enforcement effort underway in northwestern North
Dakota, particularly in areas around Fort Berthold.
Rick Volk explained that recently an indictment was returned charging twenty-two
individuals involved in trafficking in heroin and methamphetamine in around the Forth Berthold
Reservation. He said the indictment reflects a small portion of suspected drug activity in the area.
He said the drug trafficking operation has California as the primary source of supply of illegal drugs,
with individuals sent from that area to work in northwestern North Dakota. He said they have
insinuated themselves into the reservation community and have actively recruited others to work as
distributors. He said the enforcement effort has resulted thus far in the indictment of a total of thirty-eight individuals and the investigation is ongoing. He noted that illegal drugs are also arriving in the
area from eastern cities. He said the Federal Bureau of Investigation, the Bureau of Alcohol,
Tobacco, and Firearms, and state and tribal law enforcement are collaborating effectively to develop
cases for prosecution.
Judge Delmore said there is a related, substantial problem in the need to provide mental
health and other treatment services for those using or addicted to illegal drugs. He said he has been
able to deal with these issues up to this point with the able assistance of Indian Health Services.
In response to a question from Judge Foughty regarding the availability of in-patient
treatment, Judge Delmore said individuals are transported to Yankton, South Dakota, for long-term
treatment, but short-term treatment is available in Bismarck.
With respect to federal prosecutions, Judge Medd asked whether there is coordination with
local state’s attorneys. Rick Volk responded that if an individual is indicted federally and there are
state charges pending, the state case will usually be dismissed.
In response to a question from Judge Foughty, Judge Johnson explained that tribal law
enforcement is struggling to address drug-related activity in the Fort Berthold area. She said there
is great frustration because the problem seems overwhelming, with the vast amount of money being
generated from oil activity, which finds its way into illegal drug-related activity, while at the same
time enforcement resources are limited. She explained that historically about 30% of cases heard
in tribal court were drug-related. Now, she said, approximately 60% of cases are drug-related. This
year alone, she said, every domestic case heard in tribal court had a drug-related component. She said
family-related case numbers have tripled and there are currently about two hundred repeat drug
offenders being handled in the court system. With respect to staffing, she said two additional
probation officers have been hired. Previously, she said, there was only one probation officer, with
a caseload of about two hundred cases. She said the Tribal Council has done nearly as much as it can
within current budget constraints, but addressing the extent of the problem is beyond the capabilities
of tribal government. She emphasized the need for a continuing federal presence, including an
assistant U.S. attorney, on the Forth Berthold Reservation. She noted that organized drug cartels are
active on the reservation as they are on other reservations. She said there is more aggressive federal
presence on other reservations; a similar effort is necessary on Fort Berthold.
Scott Davis asked whether tribes would be willing to consider extra measures to address the
problem, such as more cross-deputization agreements or more aggressive extradition efforts. He
suggested that traditional concerns about sovereignty and jurisdiction may be costly in the effort to
combat increasing crime on the reservations.
Rick Volk observed that some tribes have an extradition process, while others do not. He said
a workable extradition process would be helpful. He said he respects the tribes’ concerns about
sovereignty but also respects the need to ensure effective law enforcement efforts on the reservations.
Judge Foughty noted that North Dakota state law (N.D.C.C. ch. 29-06.1) establishes an
extradition process by which a person subject to a tribal arrest warrant can be extradited back to the
Judge Delmore said his research indicated that in his area no one has been extradited back
to the tribe under the state law at least in the past ten years. He observed that the statute provides that
a person subject to a tribal arrest warrant “may” be arrested by state or local law enforcement.
Judge Foughty explained that persons subject to Spirit Lake tribal arrest warrants were often
extradited back to the tribe if the person was in the Devils Lake area. He said extradition becomes
more problematic if the person is located farther away from the reservation as there may be limited
tribal resources to retrieve the person.
Judge Foughty distributed a list obtained from the Department of Corrections and
Rehabilitation that reflects those on supervised probation who have outstanding warrants from
Ramsey County and are believed to be located on a reservation. He said there are likely far more
people who are the subjects of outstanding warrants. The list is attached as Appendix A. He said
extradition, based on the outstanding warrant, would be an important mechanism for removing
wanted offenders from the reservation. He said a vigorous extradition process is ultimately a political
question to be resolved by tribal governments.
Judge Delmore said there may be counties that would honor a tribal arrest warrant. But, he
said, there is a question of whether the person subject to the warrant would be wanted back on the
reservation. Brad Peterson said there may also be concern about whether there would be adequate
jail space on the reservation.
In response to a question from Judge Medd, Judge Delmore said there is a tribal ordinance
regarding extradition from the reservation, but extradition is rarely done.
Chair Foughty then invited comments from Maj. Michael Gerhart, ND Highway Patrol, about
enforcement activity on state highways running through reservation land.
Maj. Gerhart said the Highway Patrol does patrol state highways on the reservations.
However, he said, enforcement efforts will only be done with respect to a non-Indian driver. He said
if a tribal member is stopped, tribal law enforcement will be contacted. He said a Highway Patrol
trooper has been assigned to Newtown on the Fort Berthold Reservation which will provide some
additional enforcement resources. With respect to the utility of cross-deputization agreements, he
cautioned that with increasing workload, the Highway Patrol is spread thin, even with additional
resources. He stressed the importance of an agreed-upon protocol and process for enforcement
assistance. He said the Highway Patrol needs community support to take enforcement action to
ensure highway safety. He explained that the Patrol’s jurisdiction is generally limited to activities
on state property. However, he said the Patrol will offer assistance to other agencies when requested.
He said the Patrol does have jurisdiction in the particular situation if called upon to assist with a call,
for example, on city or county property.
Judge Foughty asked how, for example, a DUI on reservation land would be handled. Maj.
Gerhart explained that if the driver were a tribal member, the trooper would contact tribal law
enforcement which then conducts investigation and makes the probable cause determination
regarding the stop. He said a important factor in resolution of these stops is the time it may take for
tribal law enforcement to arrive on the scene. He said BIA law enforcement may be involved
depending on the particular reservation.
With respect to tribal law enforcement presence on Fort Berthold, Judge Johnson said there
were more law enforcement personnel on the road in the 1980's than there are now. She said there
are about twelve police officers in place now to cover a million-acre reservation. She said there are
enormous travel and time factors in just driving from one side of the reservation to the other. She
emphasized that the tribe is willing to collaborate with all parties and commit resources available
to it to help combat the impact of illicit drugs and drug trafficking on the reservation.
In response to a question from Judge Foughty, Judge Johnson said the tribe is willing to
consider cross-deputization agreements with the Highway Patrol. She said the tribe is also willing
to pursue agreements with other agencies of state government to address problems on the
Chair Foughty thanked Maj. Gerhart and Sgt. Fisher for their attendance at the meeting. The
Committee then turned to an update regarding child support enforcement.
Child Support Enforcement - Update
At the request of Chair Foughty, Jim Fleming, Executive Director of State Child Support
Enforcement, provided an overview of recent activities. He said child support attorneys are more
active in tribal courts and this has enhanced the enforcement and collection process. He noted that
the agency relies most often on self-reporting to become aware that a tribal court support order
exists. He said the agency does its best to determine whether there is a tribal order even if the
applicant for agency services does not offer the information. He said there is no preference for state
or tribal support order as long as there is an order in place that establishes a support obligation. He
explained that Fort Berthold has established its own federally funded support enforcement program.
He said the state agency partners with the tribal program in much the same way as the agency works
with agencies in other states. He said the agency has an attorney that is licensed appear in the Turtle
Mountain tribal court and the court has facilitated the enforcement process by block scheduling child
support cases. He said the agency often appears in Standing Rock tribal court and the tribe has
transitioned from planning to an operational stage in the development of its own enforcement
progam. He emphasized that the agency is committed to appearing in tribal court and values the
opportunity to do so.
Scott Davis asked how various kinds of tribal income received by an obligor are monitored
for purposes of enforcing a support obligation. Jim Fleming said information is most often received
from the person’s ex-spouse. He said some tribal employers still report new hires and information
is sometimes available from that source. He said income information is often referred to the tribal
enforcement program if one is in place.
Jim Fleming distributed a recent Child Support Report, the periodical news report published
by the agency. He said the Reportincludes an article regarding cooperation between the state and
tribes in a tax intercept process to enhance collection efforts. A copy of the Report is attached as
Project PASSPORT - Recognition and Enforcement of Protection Orders
Chair Foughty next drew attention to Attachment C (23, 2013) - a model cover sheet for
protection orders and the current North Dakota protection order forms. He explained that the model
cover sheet resulted from the Project PASSPORT initiative undertaken by the National Center for
State Courts. The objective of the project, he said, is to enhance cross-jurisdictional recognition and
enforcement of domestic violence protection orders. He said the model cover sheet for protection
orders was developed to contain in one recognizable place relevant information regarding the person
subject to the order, the jurisdiction of the issuing court, and statements regarding full faith and
credit recognition and enforcement. He emphasized the need for a cover sheet process between tribes
and the state to ensure that the most important information is readily available to law enforcement
and that the order can then be effectively enforced.
Chair Foughty then welcomed Linda Isaacson, Assistant Director, ND Council on Abused
Women’s Services, for comments regarding Project PASSPORT. She agreed a simple, easily
recognizable, one-page cover sheet would be a helpful aid to law enforcement in determining that
the order is valid and enforceable under full faith and credit. She said the cover sheet would be
particularly helpful in those counties adjoining reservations. With respect to the model cover sheet,
she suggested any adaptation of the form include an indicator regarding “access to weapons”, as well
as “weapon involved”.
Judge Foughty said he is hopeful that tribes will also consider adopting the cover sheet or a
version of it.
After discussion, it was moved by Judge Medd, seconded by Justice Crothers, and
carried that the Committee forward the model cover sheet to the relevant judicial system
committee for consideration.
Minority Justice Implementation Committee - Update on Committee Activity
At the request of Chair Foughty, Andrew Frank provided an update regarding activity of the
Minority Justice Implementation Committee. The Implementation Committee is established by
Supreme Court rule and is charged with reviewing and determining ways to implement the various
recommendations set out in the Final Report of the Commission on Racial and Ethnic Bias in the
Courts. He said the Committee has also discussed Project PASSPORT and methods of ensuring
cross-jurisdictional recognition and enforcement of protection orders. He said the Committee is in
the process of reviewing a substantial amount of information regarding evidence-based sentencing
in criminal cases and is extending a previous survey process to determine the general composition
of jury pools summoned for court cases. He said a primary objective of extending the jury survey
process is to determine whether there is proportional representation of minorities in state jury pools.
Judge Foughty noted that about ten percent of the state’s population is comprised of
minorities, but he doubted that there is ten percent representation of minorities in the state jury pools.
Scott Davis noted that there has been recent progress, with the cooperation of the Secretary
of State, in the effort to include tribal identification cards as a form of identification accepted at state
voting sites. He said that may increase the number of tribal members reflected on state voter lists,
which in turn may increase the chances for inclusion in state jury pools since the jury selection
process draws names from voter lists.
Chair Foughty noted that there are several membership vacancies on the Committee,
particularly tribal and state court support representatives. These representatives must be nominated
by judge members of the Committee and names then submitted to the Chief Justice. Committee
members discussed possible candidates for membership. Chair Foughty asked that Committee
members email any membership suggestions for consideration at the next meeting.
Committee members will be contacted about a date for the next meeting.
There being no further discussion, the meeting was adjourned at 2:00 p.m.