Following the evening dinner and discussion on June 5, Chair Foughty called the June 6 meeting to order at 9:30 a.m. and welcomed new members Dave McGeary, Director of Juvenile Court for the South Central judicial district, and Judge William McLees, state district judge chambered in Minot. Chair Foughty then drew attention to Attachment B (May 30, 2003) - minutes of the March 6-7, 2003, meeting.
It was moved by Judge Medd, seconded by Marilyn Kary, and carried unanimously that the minutes be approved.
Activities of the Fort Berthold District Court
Chair Foughty then welcomed Magdaline YoungBear, Court Administrator for the Fort Berthold District Court, for an overview of the court's activities. Ms. YoungBear explained that the tribal court currently has 11 full-time staff, including a chief judge, court administrator, criminal clerk, civil clerk, 2 adult probation officers, one juvenile probation officer, and a finance clerk. In terms of caseload, she said the court has a criminal caseload of approximately 2,279 cases, including driving while intoxicated (338), driving under suspension (225), and simple assault (144). She said approximately 400 civil cases have been filed, including commitments (83), protection orders (76), and child custody (60). She said about 500 juvenile cases have been initiated, including minor in consumption (70), truancy (43), and curfew violations (42). She said the court has processed about 165 traffic cases, including speeding (82) and driving without a license (67).
With respect to attorneys practicing in the tribal court, Ms. YoungBear said approximately 32 lawyers are licensed to appear in tribal court. Most, she said, are from within North Dakota, but there are also lawyers from Montana, Minnesota, and New Mexico. To be licensed in tribal court, she said an attorney must submit an application, along with a copy of the current attorney license and a $150 application fee. She said the applications are then submitted to the interim Judicial Committee for consideration.
In response to a question from Jan Morley, Ms. YoungBear said the tribal court has not established an attorney discipline procedure.
Judge Foughty observed that drug screening and testing have increased substantially in state courts and asked if the tribal court has had a similar experience. Judge Conklin said screening and testing in tribal court are increasing as well. She said an effort is underway to obtain drug and alcohol testing certification for probation officers.
Ms. YoungBear observed that the tribal court had received a planning grant to establish a drug court and had submitted an application for implementation funding. She said the funding was not received as the competition was intense, with 182 tribal courts applying and only 72 being awarded funding.
Charlene Knight, Lead Correctional Officer, said mental health and drug-related situations are handled through an emergency commitment procedure, with the person transported to the nearest hospital, usually Minot, for treatment. She said commitments are usually for 72 hours, with the expense paid either by Indian Health Services or personal insurance. She said the current correction facility is not licensed to hold juveniles. Judge Conklin said if a juvenile is charged with a relatively minor offense, the juvenile is placed with a family member if possible. For more serious offenses, she said, court approval is needed to hold the juvenile in a facility and the tribe is currently contracting with the Southwest multi-county correctional facility in Dickinson for placement of juveniles. She noted that in 2001 the tribe paid $38,000 for placement of juveniles at the facility, and the bill so far this year is $18,000. She noted that a tribal corrections facility is currently under construction.
In response to a question from Judge Medd regarding funding for the facility, Charlene Knight said construction is funded entirely by the Bureau of Indian Affairs and the facility is expected to be completed in early 2004. She said it will be equipped to handle 30 adult males, 30 adult females, and 30 juveniles.
Judge Foughty asked whether cases related to methamphetamine have had an impact in tribal court. Judge Conklin said that a majority of adult commitments are related to methamphetamine use. With respect to a drug court, Judge Conklin said the tribal court is attempting to use several programs recommended by an addiction counselor at the Southwest correctional facility. She said the tribal court is also trying to implement certain parts of the drug court process even though funding has not been obtained for the court itself. She said the court administrator and probation officers will be attending training in Reno, Nevada, on issues related to driving under the influence and methods of educating young people about the dangers associated with alcohol use. She noted that the tribal court is also seeking funds to establish a juvenile peacemaker court, which could perhaps be used to reduce the tension common in problems affecting juveniles.
Ms. YoungBear said the tribal court had recently received a technical enhancement grant that is being used to install a court management program that will track charges, monitor current and pending caseload, and generate necessary reports. Judge Miner said the program also generates notices and subpoenas and has been networked to other offices in the Standing Rock tribal court. The program, she said, has been a great advantage in managing court activities.
In response to a question from Jim Fitzsimmons, Ms. YoungBear said sources of funding for the tribal court include funding from the BIA, supplemental funding from the tribe, juvenile justice grant money, and revenue derived from costs and fines. She said the court's budget for one year is approximately $500,000.
Native American Training Institute - Activities
Chair Foughty next welcomed Cheryl LongFeather and Patricia Hall Hammeren for comments concerning the activities of the Native American Training Institute (www.nati.com).
Ms. Hammeren said the institute was established in the mid-1990's as the result of collaboration among several interests, including child welfare workers, tribes, and state human services representatives. She said the institute has developed programs that place an emphasis on training to meet the needs of the specific Native American community. Recent programs, she said, include a Native American foster parent curriculum. The objective, she said, is to develop methods to ensure Native American young people are placed on the reservation and cared for in their own communities. She said the institute has also developed a training program focusing on historical trauma, which seeks to explain what has happened to Native American communities and is intended not as an excuse, but as a way of understanding the effects of that experience on present-day life. She said the program has been well-received by native and non-native alike. She said the institute also worked with the state department of human services to develop a cultural competency training program for human services workers, which has also been well received.
Cheryl LongFeather explained that the institute provides training nation-wide and in Canada. In addition to training related to foster parenting and cultural competency, she said the institute offers programs in case management, relationship training for native youth developed in partnership with the department of public instruction, and a program on the Indian Child Welfare Act, which was developed in cooperation with the University of Utah. She noted that a recent study of North Dakota's compliance with ICWA indicated a need for training directed at increasing awareness of the law's requirements. She said the department of human services established a task force to improve compliance and the third in a series of state conferences related to ICWA enforcement and compliance will be held in January 2004.
In response to a question from Jim Fitzsimmons, Ms. LongFeather said annual funding for the institute is approximately $100,000 to $150,000.
Ms. LongFeather noted that state district judge Lee Christofferson has participated in institute training programs and has suggested the possibility of cultural competency training for state judges. Judge Foughty said he would contact Carla Kolling, staff for the Continuing Judicial Education Commission, about the possibility of incorporating a segment on historical trauma and cultural competency in a judicial education program.
Dave McGeary said there is an orientation program for new state juvenile court staff but the program lacks a substantive segment on ICWA. He said he would like to assemble information concerning the law's requirements to distribute during that program.
Child Support Enforcement - Information, Issues, Discussion
Judge Foughty noted the recognition of judgment forms recently reviewed by the Committee and which related to enforcement of child support judgments in the Spirit Lake tribal court. He said it appears the Spirit Lake tribal court will honor any certified copy of a state court judgment after a hearing in tribal court. He said if the person owing child support requests a modification, the tribal court will consider the request but any modification will not affect the underlying state court judgment and support arrearages will accrue.
Chair Foughty welcomed Mike Schwindt, director of the state child support enforcement office, for continuing discussion of child support enforcement issues. Mike Schwindt noted that his office treats tribal court orders the same as another state's orders if the person entitled to child support has requested enforcement services from the state office.
Jim Fitzsimmons asked whether the Committee could work with the state and tribes to reduce the instances of duplicate collection of child support, an issue discussed at previous meetings. Mike Schwindt said his desire is to establish a process that will ensure there is only one entity collecting the child support - either state or tribe. He said the best way of achieving that result is through a formal agreement between the state and tribe. Jim Fitzsimmons said he would encourage development of such an agreement because situations in which there are attempts by both the state and tribe to collect child support from the same person may ultimately lead to litigation. He said his greatest concern is that an original tribal court judgment may be enforced by the tribal court, while at the same time the judgment is entered into the state system, which then begins enforcement action with a much broader array of tools than is available to the tribal court.
Jan Morley observed that the person owing child support receives notices from the state and would then have the opportunity to inform the state of payments being made to the tribal court.
Judge Foughty said specific factual scenarios should be considered as a method of determining the exact nature of the problem, how the problem arises, and in what manner an agreement could be constructed to address the specific problems.
Mike Schwindt reiterated a point from earlier meetings: there is a need to reconcile enforcement efforts by the tribe and state, but quite often the state has only half the information it needs to undertake that effort. He emphasized that the state must have some reliable way of knowing if the tribal court is receiving payments on a child support obligation that makes its way into the state system.
Judge Medd said a related problem is that the person owing child support is often not represented by counsel, which complicates the ability to ensure proper enforcement actions are being taken.
Judge Conklin said she would support development of an agreement to at least clarify methods for sharing information between the tribes and state. She said the current method is cumbersome and inadequate.
Mike Schwindt noted that the Sisseton-Wahpeton tribe is one of eight tribes in the country which receives direct child support funding through the federal government. He said the tribe is considering acting as a sort of "host" agency for other tribes to work with the state. Unfortunately, he said, it appears the tribal agreement with South Dakota is in the process of being rescinded.
Following further discussion, it was moved by Jan Morley, seconded by Judge Conklin, and carried unanimously that the Committee consider the possibility of developing a draft agreement between the state and tribes regarding child support enforcement issues.
Sex Offender Registration
Chair Foughty recalled the Committee's earlier discussion of issues related to the availability to tribal officials of information relating to registered sex offenders. He noted previous presentations by representatives of the Bureau of Criminal Investigation and Attorney General's office which indicated that information could be provided to the tribes if there was agreement concerning who within tribal government should receive the information.
Judge Medd noted that there are two basic methods for obtaining information concerning where a registered sex offender will be living: notification from the sheriff or other local law enforcement, or through quarterly reports provided by BCI. It is important, he said, to identify the appropriate contact person within the tribal system.
With respect to federal offenders, Judge Foughty said the offender can be required to register under applicable state law requirements. But, he said, there is no indication of the risk level - low, medium, high - associated with the particular offender. Different levels of risk, he said, require different kinds of public notice with respect to the offender's location. In the state system, he said, a risk assessment is required. With respect to a federal offender, he said the only alternative may be to make a state risk assessment a condition of sentence or probation.
Judge Medd suggested with respect to state offenders that BCI should provide appropriate notice to the tribes if a registered offender is residing on a reservation.
Jan Morley suggested notice should at least be provided to tribal law enforcement. Marilyn Kary observed that if the BIA is providing law enforcement services to the tribe, the tribe has no access to information provided to the BIA. On the other hand, she said if the tribe is contracting for law enforcement services, then the tribe would have access to information received by law enforcement.
Judge Medd said the state Bureau of Criminal Investigation should be requested to provide a list of registered offenders to the tribes when an offender will be residing on a reservation, with law enforcement being the designated recipient. Committee members agreed.
Judge Foughty said he would contact the federal courts regarding the possibility of including a risk assessment as a condition of probation and highlighting the fact that tribes are generally not receiving notice if a registered federal offender is or will be residing on a reservation.
Impact of U.S. v. Lara
Jan Morley noted the 8th Circuit's recent opinion in U.S. v. Lara [Attachment C (May 30, 2003) has been cause for concern among tribes but there apparently is some confusion regarding the actual impact of the decision. She said the decision does not prevent tribal jurisdiction over a non-member Indian. As a double jeopardy issue, she said, the decision means that if the tribal court has already prosecuted a non-member, then a federal prosecution for the same offense is precluded. She said a letter from the U.S. Attorney has been distributed to tribal law enforcement outlining the issues. She noted that review of the decision by the U.S. Supreme Court is being sought as there is now a conflict between the 9th Circuit and the 8th Circuit concerning whether there can be prosecutions in both tribal court and federal court for the same offense.
Judge Foughty said the fundamental training point for tribal law enforcement is that if they think the offense may be prosecuted federally, it is important to discuss the matter with the U.S. Attorney before proceeding to tribal court.
Chair Foughty said the Committee has likely done all it can with respect to the issue of sex offender registration. He said the Committee will, however, continue to solicit relevant information on the issue. With respect to drug and alcohol treatment programs and culturally appropriate programs, he encourage tribal members to forward any information regarding such programs for possible use in the state system or state judicial education programs.
Judge Conklin noted that Attorney General Wayne Stenehjem has expressed a willingness to coordinate methamphetamine prosecution efforts between state and tribal law enforcement. Jan Morley observed that the Turtle Mountain tribe has a drug task force consisting of federal, state, and tribal law enforcement and has been very proactive in pursuing drug prosecutions.
Jim Fitzsimmons suggested Attorney General Stenehjem be invited to attend a future meeting of the Committee. Committee members agreed.
Judge Medd informed the Committee that U.S. Magistrate Kautzmann is on the waiting list for a heart transplant. Committee members expressed their best wishes to Magistrate Kautzmann and the hope that he will soon return to join the Committee.
Chair Foughty noted that Judge Medd will be resigning from the Committee after a long and valued membership. Committee members extended their appreciation to Judge Medd for his service and contribution to the Committee.
There being no further discussion, the meeting was adjourned at 1:45 p.m.
Jim Ganje, Staff