Judge Donovan Foughty, Chair, Northeast Judicial District
Judge El Marie Conklin, Fort Berthold District Court
Judge Madonna Marcellais, Turtle Mountain Tribal Court
David Hagler, U.S. Attorney's Office (for Janice Morley)
Pam Hoffman, Standing Rock Sioux Tribal Court
Justice Carol Ronning Kapsner, North Dakota Supreme Court
Marilyn Kary, Court Administrator, Standing Rock Sioux Tribal Court
Judge William McLees, Northwest Judicial District
Carla Marks, Pierce County Clerk of District Court
David McGeary, Director of Juvenile Court, South Central Judicial District
Judge Lorrie Miner, Standing Rock Sioux Tribal Court
Bradley Peterson (for Jim Fitzsimmons)
Judge B.J Jones, Sisseton-Wahpeton Tribal Court
Judge Madonna Marcellais, Turtle Mountain Tribal Court
U.S. Magistrate Dwight Kautzmann
Michelle Rivard, Tribal Attorney, Spirit Lake Nation
Rich Crawford, Chief Federal Probation Officer
Theresa Grant, Tribal Liaison, Department of Human Services
Al Lick, Division of Juvenile Services, Department of Corrections and Rehabilitation
Mark Roehrich, Federal Probation Officer
Kurt Schmidt, Director of Technology, Office of State Court Administrator
Mike Schwindt, State Child Support
Following the evening dinner and discussion on March 25, Chair Foughty called the March 26 meeting to order at 9:30 a.m. and drew attention to Attachment B (March 18, 2004) - minutes of the October 23-24, 2003, meeting.
It was moved by Justice Kapsner, seconded by Dave McGeary, and carried unanimously that the minutes be approved.
State Juvenile Services and Programs
Chair Foughty then welcomed Al Lick, Division of Juvenile Services, Department of Corrections and Rehabilitation, for comments concerning the current state of juvenile services and programs.
Al Lick explained that a state advisory group has been established for the purpose of managing federal funds received for programs associated with children at risk, primarily those who find their way into the juvenile corrections system. The advisory group, he said, identified two areas for funding: one directed at ensuring juveniles stay in school and one addressing the lack of services on reservations for Indian juveniles and the problem of over-representation of Indian children in the state juvenile system. He said the advisory group has provided approximately $1.4 million in funding for tribal programs. He said the group initiated regular meetings with tribal court personnel and invited tribal social services representatives, as well as representatives from area schools. One objective, he said, was to introduce programs that have a track record of succeeding. He said funding was provided for a probation officer and a social services position on each of the 4 reservations. He noted that funding was also provided for drug and alcohol treatment programs established by the Standing Rock Sioux Tribe and the programs have appeared to work well. He said the group remains committed to providing funds for tribal programs, but noted that federal funding had declined to approximately $900,000. He said consultants have been brought in to work with the tribes on methods for continuing programs that were initiated with federal funds. He said that even though several grants have been discontinued, tribes have continued programs on their own.
With respect to the number of Indian children in the state system, Mr. Lick said the number has declined, but that may be due to the fact that the number of children in general in the system has declined. Nevertheless, he said, Indian children represent approximately 35% of those committed to the custody of the Division of Juvenile Services. With respect to the kinds of offenses involved, he said the last risk/needs assessment indicated far fewer crime-related offenses, but more problems associated with mental health issues.
Mr. Lick explained that the Division's Youth Correctional Center has contracts with all tribes in the state which govern placement of Indian children. The primary difficulty, he said is payment, which is $120 per day. Tribal entities, he said, sometimes do not have adequate available funding to cover the expense. He noted, however, that the division has never denied placement of a juvenile on the basis on non-payment. He said that because of the recent influx of female juveniles, the division has declined placement of 4 girls, simply because there was insufficient room.
In response to a question from Judge Foughty, Al Lick said there are 154 Indian children currently in the juvenile correction system. He said that Indian juveniles comprise approximately 28% of the juveniles at the Youth Correctional Center. He said there are currently 95 juveniles at YCC; the facility can comfortably handle 100.
In response to a subsequent question from Judge Foughty, Al Lick said a committee had been appointed to review several different rehabilitation-related programs. The committee, he said, ultimately recommended the "EQUIP" program, which is directed at methods for correcting thinking errors and enhancing moral reasoning abilities. He said the program has been accepted and is in use throughout the system. He emphasized the importance of including a cognitive restructuring component in any program as a means of ensuring any noticeable level of success. He said cognitive restructuring programs have a demonstrated record of leading to reduced recidivism rates.
Dave McGeary agreed cognitive restructuring programs are successful but emphasized the need for intervention programs before actual adjudication of the juvenile offense. He said the state juvenile court system has used the Keys to Innervision program with success but funding to support the program will end in the near future.
Judge Foughty asked whether the EQUIP program has a continuum of services to ensure a juvenile continues if it appears that behavior is not changing. Al Lick said EQUIP is a 4-level system and a juvenile in the program can only move to another level if progress is demonstrated.
In response to a question from Judge Conklin regarding risk assessments, Al Lick said an assessment of risks and needs is conducted to determine services that are needed and the appropriate placement for the juvenile. He said YCC uses the Youth Compass risk and needs assessment tool, which is more broadly focused than previous assessment methods.
In response to a question from Justice Kapsner, Al Lick said there are more juveniles than ever before being placed with relatives.
Chair Foughty extended his thanks to Al Lick for spending time with the Committee.
Chair Foughty next welcomed Rich Crawford, Chief Federal Probation Officer, Fargo, and Mark Roehrich, Probation Officer, Bismarck, for comments concerning sex offender registration and other probation issues of interest to tribes.
With respect to notifications regarding sex offender registration, Mark Roehrich explained that the federal government itself is not required to issue notifications regarding registration, but under federal law there is an obligation to cooperate with the state sex offender registration agency. He said Chief Federal Judge Hovland has authorized full disclosure to the state Bureau of Criminal Investigation of any information federal probation may have so the Bureau can conduct an assessment of a sex offender to determine risk levels. He noted that none of the reservations have an offender registration system. He said the Bureau will release its sex offender list to anyone who requests the list. Tribes, he said, can request a copy of the list and the Turtle Mountain Band of Chippewa have requested direct electronic access to the registration information.
With respect to registration of federal offenders, Mark Roehrich said all federal offenders convicted of violent offenses or drug offenses are registered with the Bureau of Criminal Investigation. Similarly, he said, federal offenders convicted of offenses against children are also registered with the Bureau.
In response to a question from Judge Foughty, Mark Roehrich said the Bureau will conduct a risk assessment of federal offender and then will issue the appropriate notification based on the assessment. Judge Foughty noted the notification gap that may occur if an offender is living on one of the reservations. He said while notification may be made to local, state, or county law enforcement, there likely would not be any kind of notice provided to tribal authorities. Mark Roehrich noted that notification is often done through the newspaper or other media.
With respect to how tribal authorities can obtain offender registration information, Rich Crawford underscored that tribes can request that the information be provided to them on a regular basis by the Bureau of Criminal Investigation. He noted that federal probation officers responsible for probationers located on reservations are in regular contact with tribal law enforcement. Mark Roehrich explained that probation officers routinely provide an updated list of offenders that are located in reservation areas.
Rich Crawford observed that approximately 50% of the federal probation caseload consists of Native American probationers, while the department had until recently only one Native American probation officer. He said the probation department has developed a model program to relocate probation services closer to reservations and has recently hired an additional 4 probation officers. He said efforts are continuing to ensure adequate probation services are provided on or near reservation areas. He said the department has also added a number of treatment contracts and is considering a treatment program for sex offenders. He noted that a plan for a community service program was approved by all affected parties except the Bureau of Indian Affairs, which refused to sign-off on the program. The program, he said, would have established a work leader position on the Turtle Mountain Reservation which would have been an employee of the tribe through a 638 contract. He said the project would have handled 6-8 offenders, who would have worked on tribal and BIA projects 4 days per week and on Friday would have attended job training classes through TERO or another agency. He said efforts are underway to resurrect the program. He emphasized that the federal probation department is committed to dispelling the perception that the federal system is either unconcerned or domineering with respect to issues that affect the tribes. He said there is a very strong desire to ensure that the state, federal, and tribal governments are moving in the same direction with respect to services for those on probation.
In response to a question from Judge Conklin, Judge Foughty recalled the early issue discussed by the Committee with respect to registration notification for offenders residing on reservations. He said the reservation community may be notified with respect to a high risk offender residing on the reservation because the media is the method by which public notification is made. He said there may, nevertheless, be problems with that notification reaching most reservation residents. The related concern, he said, is that notification with respect to other registered offenders is accomplished by notice to state or local law enforcement, but that notification process will not include tribal law enforcement or other authorities.
Judge Conklin asked whether the federal government can require registration, under state law, by a Native American who lives on the reservation, committed a federal offense on the reservation, and returns to the reservation after release. Additionally, she wondered how the registration requirement could be enforced. Mark Roehrich said a federal probation officer can require registration as a condition of probation ("complying with all laws"). He said if the offender refused to register it would be considered a violation of probation.
Dave Hagler said if the offender refused to register the probation officer would contact the U.S. Attorney's office and a petition to revoke release could be initiated. Final disposition, he said, would be up to the court.
Judge Miner wondered what would occur if the period of supervision ends and the offender still has not registered. Dave Hagler said the question may then be whether there is a violation of state law but the jurisdictional issues are unclear.
In response to a question from Judge Miner, Mark Roehrich said caseload for federal probation officers varies, depending on different kinds of responsibilities. He said the total federal supervision caseload in North Dakota is currently about 270 cases. Judge Miner noted that the probation officer on Standing Rock currently has approximately 600 cases.
Child Support Enforcement
Chair Foughty next welcomed Mike Schwindt, Director of State Child Support Enforcement, for continuing comments regarding child support enforcement.
Mike Schwindt noted that federal regulations regarding tribal child support enforcement programs are expected, after long delay, to be issued in May. He said although details are not entirely clear, it appears start-up dollars will be available, there will be a 90/10 match requirement rather than the previously discussed 66/34 match, and an in-kind match will be available. He said information concerning possible funding for tribal child support programs was recently presented to tribal leaders at a program at United Tribes Technical College. He emphasized that state child support enforcement is willing to work with tribes to establish child support programs if tribes desire the assistance.
Mike Schwindt noted that there are approximately 1200 tribal court orders for child support entered in the state child support system. He cautioned that enforcement action on these orders might be taken that would otherwise not be taken if the state system had current information concerning child support payments. He noted that the state child support enforcement agency is regularly submitting to the tribes information the agency has with respect to tribal support orders so that tribal records can be updated. He asked that tribes in turn submit information to the agency so state records can be updated. He emphasized that current information is critical to ensuring that inappropriate enforcement actions are not taken. He said a project is under consideration which would entail referring those cases with significant amounts of unpaid child support to the U.S. Attorney for federal prosecution.
Theresa Snyder, Tribal Liaison, Department of Human Services, explained that a meeting at United Tribes Technical College will be held the day following this meeting, the subject of which will be discussion of making an entity, perhaps the College's Economic Development Center, available to provide technical assistance in grant writing if a tribe is interested in pursuing the establishment of a tribal child support program. She said the ultimate decision will be made by the College's Board, but such a resource could be of significant assistance to tribes.
Judge Conklin said the concept is worth pursuing, but urged that tribal courts be directly involved in the process.
Judge Miner said establishing a tribal child support program is a significant undertaking that requires, among other things, a substantial amount of technical training for court personnel. She said there must also be training on federal law and the tribal code. She agreed that the tribal court should be the centerpiece of the plan, rather than another entity developing the program and simply handing it over to the court.
Marilyn Kary emphasized the need unequivocal support from the tribal council if such a project is to move forward.
Committee members expressed general support for continuing discussions with respect to methods for establishing tribal child support programs.
Domestic Violence Protection Orders - Electronic Process
Chair Foughty then called on Kurt Schmidt, Director of Technology, Office of State Court Administrator, for comments concerning the electronic domestic violence protection order process and the prospects for entry of tribal protection orders in the system.
Kurt Schmidt explained that the current process enables transmission of the full text of the protection order to the Bureau of Criminal Investigation for entry in the protection order registration and for transfer of information into the federal registry. He said an integrated form is used and is linked to the general information system. He said domestic violence advocates enter information into the data base, which in turn migrates to the court's information system and is included in the order ultimately presented to the judge. He said at present the process is a "closed" system that enables transmission of information from the court's information system to the Bureau and, ultimately, to the federal registration system. He said there is no current mechanism by which tribal court orders could be entered into the system at the front end. There is a possibility, he said, that tribal court orders could be transmitted directly to the Bureau, but that would require considerable coordination between the tribal court and the Bureau to establish the data transfer process.
In response to a question from Judge Miner, Kurt Schmidt said information maintained in the information system includes date and time of service of the order.
Court Improvement Project - Update
Dave McGeary said the Court Improvement Project recently completed development of a uniform form for appointing a lay guardian ad litem, which will be used statewide. He said there is interest in exploring ways to ensure availability of Native American guardians ad litem to assist in those cases in the state court system involving Native American children. He said the Improvement Project has formed a subcommittee to identify gaps in services for children in foster care or receiving social services. He noted that North Dakota has a higher percentage of children continuing in foster care than the national average. He said an effort is underway to determine why that is the case. He observed that a project will soon be underway to review the Uniform Juvenile Court Act and to determine whether rules specific to juvenile court should be developed. He said that as a result of a recent training report by the Native American Training Institute the juvenile court has reinstituted a practice of quarterly meetings with representatives from tribal courts, tribal and state social services, the police youth bureau, and the division of juvenile services. The objective, he said, is to engage in brainstorming and problem-solving with respect to common issues encountered by the various entities.
Judge Foughty noted that there continue to be problems with the interface between the Indian Child Welfare Act and the Adoption and Safe Families Act.
Sex Offender Registration
With respect to information presented by Rich Crawford and Mark Roehrich, Judge Foughty said it appears that tribes have access to sex offender registration information if they request it. He noted that representatives from the Bureau of Criminal Investigation had presented similar information at a previous meeting. The question, he said, is the process for requesting the information and who or what entity within the tribe should receive the information. He suggested the possibility of preparing a draft tribal code provision that would identify who would be responsible, once information is received, for notification and would establish methods of notification based on risk factors. The question, he said, is whether the tribes would want to take on the responsibility or would have the staff to undertake the notification process.
Judge Conklin observed that Three Affiliated Tribes has discussed the issue but there are limited resources to commit to such a project.
After discussion, Committee members agreed the next meeting should be at Standing Rock.
There being no further discussion, the meeting was adjourned at 1:30 p.m.
Jim Ganje, Staff