|Members Present |
Judge Donovan Foughty, Chair
Northeast Judicial District
Judge Mary Cavanaugh, Spirit Lake Nation
Judge El Marie Conklin, Fort Berthold
Joe Vetsch ( for Jim Ftizsimmons)
Pam Hoffman, Civil Clerk, Standing Rock
Judge B.J. Jones, Sisseton-Wahpeton
Jusstice Carol Ronning Kapsner, North Dakota
Judge Sharon Malaterre, Turtle Mountain Tribal Court
Traci McClellan (for Northern Plains Tribal Judicial Training Institute)
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, Northeast Judicial District
Michelle Rivard, Tribal Attorney, Spirit Lake Nation
|Members Absent |
U.S. Magistrate Dwight Kautzmann
Carla Marks, Pierce County Clerk of District Court
Lanny Serrano, South Central Judicial District Juvenile Court
Associate Judge Richard Frederick, Turtle Mountain Tribal Court
C. Joe Parisien, Tribal Operations Officer, Turtle Mountain Band of Chippewa
Yvette Lafloe-Falcon, Chief Clerk, Turtle Mountain Tribal Court
Linus Faine, Tribal Prosecutor, Turtle Mountain Band of Chippewa
Tara Muhlhauser, UND School of Law
Mike Schwindt, State Child Support Enforcement
Susan DuBray, Norther Plains Indian Law Center, UND School of Law
Debra Flute, Norther Plains Indian Law Center, UND School of Law
W. Cindy Boyer, Norther Plains Indian Law Center, UND School of Law
Chair Foughty called the meeting to order at 9:30 a.m. welcomed newly appointed members Justice Carol Ronning Kapsner, North Dakota Supreme Court; Michelle Rivard, Tribal Attorney, Spirit Lake Nation; Pam Hoffman, Civil Clerk, Standing Rock Sioux Tribal Court; and Marilyn Kary, Child Protection Services, Standing Rock Sioux Tribe. Following introductions, Chair Foughty then drew Committee members' attention to Attachment B (July 3, 2002) - minutes of the April 12, 2002, meeting.
It was moved by Judge Olson, seconded by Judge Medd, and carried unanimously that the minutes be approved as mailed.
Child Support Enforcement
Chair Foughty welcomed Mike Schwindt, Director, State Child Support Enforcement Office, for a discussion of various issues affecting the state and tribes with respect to enforcement of child support obligations. Issues of particular interest noted at the Committee's previous meeting included the status of cooperative agreements between the state and the tribes, the response of state child support enforcement to tribal support orders, and tribal court modification of state court child support orders.
Mike Schwindt began the discussion noting that child support enforcement in North Dakota affects approximately 160, 000 people, including child support obligees and obligors within the state, some located in other states, and some located in other countries. He said there are approximately 50,000 children that rely on the office for the collection of support payments, while at the same time there is nearly $180 million in outstanding support obligations that have not been paid. He said included in the child support cases handled by state child support are about 1,000 cases from the IV-D program that originate with tribal court orders and about 137 non-IV-D cases originating with tribal court orders. During June 2002, he said, the state office collected child support on 163 of the IV-D related cases from tribal court, resulting in approximately $79,000 being collected. With respect to cooperative agreements with tribes, he said there are, unfortunately, no agreements in place at this time. He noted that a draft cooperative agreement was submitted in 1999 to the Sisseton-Wahpeton Tribe, but there has been no response - apparently due to unresolved issues between the tribe and the state of South Dakota.
Judge Jones explained that tribes in South Dakota had been informed by the federal office for child support enforcement that they should not enter into agreements with North Dakota until the tribes have exhausted all avenues in South Dakota. He said the Sisseton-Wahpeton Tribe, for example, would like to have an agreement to receive tax intercept and drivers license suspension services from the state, but there is an issue of cost in South Dakota while in North Dakota those services would be provided at no cost.
In response to a question from Judge Miner concerning the costs associated with a cooperative agreement, Mike Schwindt said the federal government covers 66% cost of the IV-D program and the local government entity must contribute 34% of the cost. Consequently, he said, a tribe would have to provide the 34% funding match to receive IV-D child support enforcement services under an agreement.
In response to a question from Jan Morley, Mike Schwindt said there is very little enforcement activity undertaken in tribal courts by state/regional child support offices. He said he would like to pursue more enforcement measures in tribal courts, but regional offices are county administered, which limits his ability to direct their activity, and they are also pressed for adequate staff. Additionally, he said, the state child support office is not often aware of what enforcement actions are taken by tribal courts themselves since the state office has no access to that kind of information. In response to an additional question from Jan Morley concerning paternity testing, Mike Schwindt said there has been discussion about sharing contracts providing testing services with the tribes, which he is willing to pursue. While the contracts are with regional offices, which are county administered, he said there likely should be little opposition to extending services to tribes because doing so will expand the base of testing services and may result in a lower price from the testing entity.
With respect to cooperative agreements, Mike Schwindt noted that in the past the state entered into a tentative agreement with the Turtle Mountain Band of Chippewa using only state funding, which was very unusual. He said that effort was directed at laying the groundwork for a full cooperative agreement and identified several areas requiring attention before a cooperative agreement could be fully implemented. He said Sioux County had recently floated an interesting proposal by which the Standing Rock Sioux Tribal Court would handle all child support enforcement activity in the county. He said he is uncertain whether that can be legally accomplished but it is worth discussing.
Judge Jones noted that South Dakota had agreed to pay the tribes $132 for each child support or paternity order entered by the tribal court. Mike Schwindt said North Dakota had been considering a similar approach in 1999, but there has been little discussion since
In response to a question from Judge Foughty, Mike Schwindt said there are several benefits for the tribe, as well as the child and the parties, resulting from a cooperative agreement with the state for support enforcement services. Among those, he said, are tools for facilitating collection , such as the ability to freeze or seize bank and retirement accounts and to initiate tax intercepts. Also important for effective enforcement, he said, is the sharing of information between tribal courts and state child support authorities. For example, he said, state child support agencies are generally unaware of any child support payments that might have been made to a tribal court. And, he said, information concerning child support collected from a tribal obligor by the state is likely not making its way back to the affected tribal court. Judge Miner agreed it is imperative that information be available to tribal courts, otherwise an obligor may be subject to enforcement action when, in fact, a child support payment has already been collected by the state, for example.
Michelle Rivard wondered whether another kind of agreement between the state and tribes would be helpful, one that addresses the need for shared information and communication and that identifies who is responsible for what and when. Mike Schwindt agreed there is a need for a process to ensure the effective exchange of information between tribal courts and state child support enforcement.
Michelle Rivard noted that staff from the Devils Lake regional child support enforcement office regularly visits the Spirit Lake Tribal Court and has become familiar with tribal court process, staff, and the judges. Consequently, she said, there is a much better level of awareness about what is occurring with respect to child support actions taken by the tribal court and the regional office.
Marilyn Kary said it would be helpful if state and regional child support offices could have a liaison to work with the tribal courts to ensure information is effectively shared. Mike Schwindt observed that finding adequate staff to undertake that task would be the first obstacle to overcome. Judge Foughty said it may be worthwhile to consider a memorandum of understanding between a tribe and the state that ensures adequate information and notices are exchanged. With respect to cooperative agreements generally, Mike Schwindt noted that child support guidelines must be incorporated in tribal codes before a cooperative agreement can be fully implemented. Judge Miner said the Standing Rock Sioux Tribe is currently developing guidelines. Michelle Rivard said the Spirit Lake Nation also has drafted guidelines for review.
Judge Conklin noted that in the Grand Forks area non-certified court orders were used to initiate support enforcement activity and asked whether that is standard practice. Mike Schwindt said a certified order is preferred, but a non-certified order might be used to enter information into the state child support data system. He said he was uncertain whether it was common for regional offices to use non-certified orders to take enforcement action against a tribal obligor. In response to a question from Judge Conklin, Mike Schwindt said he is uncertain what criteria have been established by regional offices regarding the kind of information they require before commencing enforcement activity.
In response to a question from Judge Jones, Mike Schwindt said the state office does not send notices to tribal gaming commissions asking that gaming licenses be suspended if the amount of child support owed has reached a certain level. He said the more immediate issue is whether tribes will honor income withholding orders issued by the state with respect to someone employed at a casino. Judge Conklin said the most effective way of ensuring that withholding orders are enforced is to submit them through the tribal court.
Judge Miner said one obvious concern is that when the tribal court receives a state income withholding order, there is no indication of how service was made on the obligor or whether the obligor was present at the hearing. For example, she said she recently encountered an Iowa income withholding order issued against someone working at the casino on the Standing Rock reservation. She wondered how Iowa could have obtained jurisdiction to issue the order. She suggested income withholding orders should indicate how the obligor was served, whether there was a hearing, and whether the person failed to appear. Mike Schwindt noted that the income withholding form is federally mandated and cannot be changed by the state.
Judge Conklin wondered how tribal court should approach a state order for child support when there is a question regarding jurisdiction over the party. Can the tribal court, she asked, even modify the order. Judge Jones said federal authorities have apparently indicated that tribal courts cannot modify a state order under 28 U.S.C. 1738B, which provides for full faith and credit recognition of support orders. He questioned why a tribal court should not be able to modify a state order for child support when the state court did not have the authority at the outset to establish the child support amount identified in the order.
In response to a question from Judge Foughty concerning how a tribal court would respond to an order from another tribal court, there was general agreement that it should be registered and enforced as a foreign judgment.
Judge Conklin recounted a recent situation in which a tribal court order for child support was entered and the obligee then requested enforcement services from North Dakota enforcement offices. She said North Dakota then registered the order with Oklahoma authorities, who in turn registered the order with a local tribal court. Each office, she said, was requesting that payments be made to it and was pursuing enforcement actions when payment was not received. She said arrearages were accumulating, the obligor's driver's license had been suspended and his checking account frozen, and all the while the obligor was making payments to the Three Affiliated Tribes tribal court. She said it is important that information be shared so these kinds of situations do not occur. Mike Schwindt said he would review the case file if given the obligor's name. Judge Foughty suggested the possibility of implementing a mechanism by which tribal courts could notify state authorities when troublesome cases like this one arise.
Michelle Rivard asked whether there is any emphasis placed on state child support personnel becoming familiar with the operation of tribal courts. Mike Schwindt emphasized that regional child support offices are staffed by county employees and the state contracts with the county for services. Consequently, he said, the ability of the state office to govern activities of county workers is somewhat limited. He agreed, however, there is a need in the child support area for tribal specialists; but staffing and funding considerations limit the ability to pursue that objective.
Joe Vetsch suggested the solution might be to have a cooperative agreement between the state and tribes which provides for the recognition of their respective child support orders, provides that each would register the orders of the other, and provides that payments made in accordance with the orders would be made to the jurisdiction that originally issued the order. Judge Jones agreed that approach is the way the process should work.
Chair Foughty thanked Mike Schwindt for taking the time to visit with the Committee. He said it is important for the state and tribes to consider all options to ensure improved cooperation so children receive the services to which they are entitled. He encouraged Committee members to give some thought to how the matters discussed could be more effectively addressed.
Adoption and Safe Families Act - Indian Child Welfare Act
The Committee next turned to a discussion of the relationship between the recently enacted federal Adoption and Safe Families Act (ASFA) and the Indian Child Welfare Act (ICWA). Chair Foughty welcomed Tara Muhlhauser, Assistant Dean of the UND School of Law, who has worked extensively with the North Dakota Supreme Court's Court Improvement Project with respect to implementation of ASFA in North Dakota.
Tara Muhlhauser explained that ASFA was enacted federally in 1997 and became part of North Dakota law in 1999. She said that when ASFA was developed at the federal level there was little discussion of its interplay with ICWA; consequently there is very little guidance with respect to how the two acts are intended to work together. However, she said, there was no intention to supersede parts of ICWA.
Judge Jones said that from a tribal perspective there is an accelerating number of Indian children being adopted into non-Indian families as a result of ASFA, thereby undermining the purpose of ICWA. Additionally, he said, ASFA represents a zero tolerance approach for parents and their relationship with their children. For example, he said, South Dakota has interpreted "aggravated circumstances" under the state ASFA provisions to mean that if a mother is an alcoholic, the court must proceed to termination of parental rights within thirty days. There is, he said, no consideration given, for example, to whether the mother was sexually abused, grew up in an alcoholic home, or is amenable to treatment. Equally disturbing, he said, is that if the tribe has a IV-E agreement for funding foster care placements, the tribe must comply with a state law the tribe had no part in enacting.
Judge Foughty said his experience has been that if a parent is alcoholic, the timeline for parental rights is not the same as described by Judge Jones. Judge Jones observed that perhaps North Dakota adopted a less severe requirement for finding aggravated circumstances than did South Dakota.
In response to a question from Judge Jones, Tara Muhlhauser said tribal representatives were routinely involved in developing the implementation of ASFA in North Dakota and developing relevant legislation. With respect to North Dakota's law implementing ASFA, she said the law broadly defines "relative" for purposes of placement of a child so as to not require any blood relationship. She said federal representatives thought that approach unwise, but tribal representatives strongly urged that approach to facilitate the creation of guardianships and the longer-term placement of Indian children. She agreed that with respect to aggravated circumstances tribes must follow state law with respect to its definition, but North Dakota law allows discretion and there is always a way to avoid proceeding to termination of parental rights on the fast track. Additionally, she said, the law provides that if a tribe seeks jurisdiction of a case under ICWA, the tribe can use as a compelling reason the request for a different planned living arrangement for the child, which avoids the fast track to parental termination.
In response to a question from Michelle Rivard regarding why tribes must follow state law with respect to defining aggravated circumstances, Tara Muhlhauser said the likely reason is that the requirement is tied to the ability of tribes to access IV-E funds through the state. She said there apparently is legislation pending in Congress that would provide tribes with separate access to IV-E funds.
Judge Foughty said state courts are still required to find beyond a reasonable doubt that there are grounds for the termination of parental rights involving an Indian child, which is consistent with ICWA, while the standard is clear and convincing evidence under ASFA for termination of rights. He said with respect to terminations under ASFA that there seems to be something more that should be done when an Indian child is involved. He said there likely should be more opportunity for input from the tribes. He agreed with Judge Jones that because of ASFA there likely will be more Indian children adopted into non-Indian families, particularly in light of the increasing presence of methamphetamine use on the reservations and the role drug abuse plays in finding aggravated circumstances for purposes of termination.
With respect to legal representation in ASFA proceedings, Tara Muhlhauser noted that IV-E funds are not available to provide representation for parents in termination proceedings under ASFA. She observed that in state courts a non-law trained guardian ad litem is generally used but is taken off the case if it moves to the termination stage and an attorney is then appointed. She noted there has been some discussion regarding possible training for tribal advocates to create an "ASFA specialty" but a program has not been refined yet.
Judge Jones wondered whether the state gives specific notice to a tribe if a case involving an Indian child has moved to the termination stage under ASFA requirements.
Marilyn Kary emphasized the importance of more training for key personnel with respect to both ASFA and ICWA. Tara Muhlhauser agreed training is critical to understanding the options available under both laws.
In response to a question from Judge Jones, Tara Muhlhauser said many decisions about a child's status in ASFA proceedings are made at the agency level. For example, she said, the state court frequently will not know what decisions have been made until the case comes in for the twelve month hearing or permanency hearing, at which point the social worker may recommend that the case move to termination of parental rights - a decision that may have been made six months earlier at a permanency planning meeting. She said she is uncertain about how regularly tribal child welfare workers, for example, are receiving notices of what is occurring at these agency meetings. Judge Foughty wondered how tribal staff can make an informed decision about how to proceed if they are not receiving reports from relevant social service agencies working with the child and parents.
With respect to ICWA, Judge Jones noted that there is a case on its way to the U.S. Supreme Court in which it has been argued that ICWA may be unconstitutional as violation of the 10th Amendment. The theory, he said, is that Congress had no authority to enact the law as it deals with family law, an area traditionally left to the states. He suggested the Committee could consider developing a North Dakota Indian Child Welfare Act, similar to those adopted in other states such as Nebraska, Oklahoma, and Minnesota. Tara Muhlhauser said she would be willing to assist if the Committee undertakes such a project. Staff will assemble examples of the state laws.
Chair Foughty thanked Tara Muhlhauser for assisting the Committee in its understanding of an admittedly complex area of family law.
Indian Law Question for State Bar Exam
Chair Foughty recalled the Committee's earlier discussion concerning the possible addition of an Indian law question to the state's bar exam. At his request, staff provided additional information on the issue.
Staff explained that North Dakota is now one of fourteen states that has adopted a multi-state essay for the essay portion of the bar exam. The essay questions, he said, are provided by the National Conference of Bar Examiners. The questions, he said, address a variety of core subjects, from which the participating states select a number of questions for inclusion in their bar exams. He said model answers to the essay questions are also provided. He said the State Board of Law Examiners made the decision to participate in the multi-state essay approach after a great deal of discussion. Adding a different question to the mix of multi-state essay questions, he said, may pose some problems with respect to statistical certainty about the exam results. He noted that New Mexico, which recently added an Indian law question to the bar exam, does not participate in the multi-state essay process. He said there apparently has been some discussion at the national level about including a model Indian law question among the multi-state essay questions provided to the several participating states. In light of North Dakota having changed to the multi-state essay, he said, there may be some difficulty in adding a separate question on Indian law, most particularly with respect to developing the question, grading the question, and then incorporating the grading result in the multi-state essay results. He suggested that if the Committee would like to consider the matter further, it may be useful to invite members of the Board of Law Examiners to a future meeting to discuss the issue in more detail.
Judge Olson said it may be useful as well to encourage the bar association to include more Indian law related programs as part of its continuing legal education effort.
After further discussion, Committee members agreed representatives from the Board of Law Examiners should be invited to the next meeting to discuss the issue further.
Chair Foughty then invited discussion of any jurisdictional issues affecting tribal and state courts.
Judge Frederick said there have been concerns with recent activity of the U.S. Attorney's Office and the role the U.S. Attorney plays with respect to tribal jurisdiction regarding misdemeanor cases. He said the Turtle Mountain Band of Chippewa recently received a letter from an assistant U.S. Attorney informing the tribe that unless certain actions were taken with respect to what is a political case funding for the tribal court could be withdrawn. Chair Foughty suggested Judge Frederick prepare a written presentation of the issues so that the U.S. Attorney can respond to the specific details. Judge Frederick said that, at a minimum, he would invite the U.S. Attorney to visit with tribal court personnel to become familiar with the operation of tribal courts.
Judge Conklin inquired about the recent effort of the U.S. Attorney's Office to meet with tribal and state law enforcement. Jan Morley said the purpose of the meetings is to address issues concerning how to handle DUI cases in light of the 8th Circuit's opinion in U.S. v. Billadeau and a state district court's recent dismissal of a DUI charge apparently based on the Billadeau opinion. She said particular areas of concern are the extent of federal responsibility for prosecution of DUI offenses committed by non-Indians on the reservation and the corollary responsibility for prosecution of tribal members. She said the U.S. Attorney's office will be meeting with tribal council members, tribal law enforcement, tribal court personnel, and state's attorneys to discuss the issues.
With respect to the state court dismissal, Judge Foughty said the case involved a non-Indian charged with DUI committed on the reservation. He said a motion to dismiss for lack of jurisdiction was made and the charge was dismissed. The implication, he said, was that the state did not have jurisdiction to prosecute the offense. Jan Morley noted that the dismissal was granted "in the interests of justice" and did not address the jurisdictional issue.
Michelle Rivard wondered why, if the state apparently had no jurisdiction, the only option is federal jurisdiction over both non-Indian and Indian offenders. Jan Morley responded that there have been instances of tribal members driving under the influence on the reservation and not being charged. Michelle Rivard responded that that is not a matter of jurisdiction; it is, rather, an issue of local practice or law enforcement. There is still, she said, jurisdiction for the tribal court to handle the cases involving tribal members. With respect to the U.S. Attorney meetings, she suggested that it would be beneficial if all tribes that may be ultimately affected by a new policy were invited to attend the meetings.
Judge Foughty informed the Committee of his recent attendance at the ground breaking for the Wakpa Sica Historical Society Reconciliation Place Project, which is to be located in Ft. Pierre, South Dakota. Judge Jones noted that the Project is also intended to develop a Sioux Nation Supreme Court, but the project is also reaching out to the Turtle Mountain Band of Chippewa and the Three Affiliated Tribes. He said plans are underway for establishment of a tribal mediation center and a cultural repatriation center. Judge Foughty said the project also intends to establish a resource center for tribal courts. He suggested the Committee continue to monitor this unique development.
Following discussion, Committee members agreed the next meeting should be on the Standing Rock Sioux Reservation.
There being no further discussion, the meeting was adjourned at 2:00 p.m.
Jim Ganje, Staff