Judge Donovan Foughty, Chair, Northeast Judicial District Judge Diane Johnson, Fort Berthold District Court Justice Daniel Crothers, North Dakota
Supreme Court Marilyn Kary Judge Madonna Marcellais, Turtle Mountain
Band of Chippewa Tribal Court Judge Joel Medd, Northeast Central Judicial District Michelle Rivard Parks, Associate Director,
Assistant Director, Tribal Judicial Training Institute Brad Peterson Judge Michael Sturdevant, Northeast Judicial
District Judge William Delmore, Standing Rock Sioux Tribal Court
Judge B. J. Jones, Sisseton-Wahpeton Tribal Court
See Appendix A for a list of other attendees
Chair Foughty called the meeting to order at 10:00 a.m. and welcomed those in attendance. He
thanked members of various tribal councils, particularly Richard McCloud, Chairman, Turtle
Mountain Band of Chippewa, and Roger Yankton, Chairman, Spirit Lake Nation, and tribal
government staff for their interest and attendance. He welcomed Scott Davis, Executive Director,
Indian Affairs Commission, who had arranged the presentation related to the Uniform Commercial
Code in Indian County.
Federal District Judge Dan Hovland welcomed the Committee and attendees to the Federal
Courthouse and extended his best wishes for a productive meeting.
Federal Criminal Justice Initiatives in Indian Country
Chair Foughty then welcomed U.S. Attorney Tim Purdon for an overview of initiatives by the
Department of Justice and the U.S. Attorney’s office related to Indian County.
U.S. Attorney Purdon explained that among the recent achievements related to criminal justice
issues on the several reservations one of the most significant is the recent appointment of two special
assistant U.S. attorneys to assist in prosecuting cases on the Standing Rock Sioux Reservation. He
said the individuals will be able to handle cases in both tribal and federal court, which will facilitate
resolution of criminal cases, particularly those involving offenses committed by non-Indians against
tribal members. Additionally, he said a program has been instituted to place a summer intern in the
U.S. Attorney’s office who will be a resource for the Standing Rock prosecutor’s office.
With respect to the operation of the U.S. Attorney’s office, Mr. Purdon said the office, in 2011,
filed more criminal cases in Bismarck and Minot than in Fargo and Grand Forks and that trend is
continuing in 2012. He said the increased caseload in Bismarck and Minot has had an effect on how
cases involving offenses committed on reservations are handled. He said his office is considering
ways to rebalance the caseload.
Mr. Purdon then reviewed recent amendments to the federal Violence Against Women Act which
expanded tribal jurisdiction with respect to crimes involving domestic violence. He emphasized that
the expanded jurisdiction of the tribal courts is limited to a narrow category of cases and is subject
to various due process requirements and requirements related to qualifications of tribal court
personnel, particularly tribal judges. He said the law changes related to jurisdiction over non-Indian
offenders will be implemented on a pilot project basis. He briefly reviewed a summary of the various
changes to the federal law. The summary is attached as Appendix B. He also reviewed a letter
prepared by him and Janelle Moos, Executive Director, ND Council on Abused Women’s Services,
which sought to clarify the law changes and dispel misconceptions about the changes. A copy of the
letter is attached as Appendix C.
In response to a question from Judge Foughty, Mr. Purdon said one of the requirements that is
a predicate for expanded jurisdiction is that the tribal court must ensure a diverse jury pool; the jury
pool must include Indians and non-Indians. Judge Delmore observed that the important consideration
is that selection result in a jury of the defendant’s peers. He noted the difficulties when a non-Indian
summoned for jury service in tribal court does not respond. Mr. Purdon said civil contempt or some
other civil remedy may be an option.
With respect to additional activities of the office, Mr. Purdon said consultations with the various
tribes had been scheduled for March but had been postponed until July. He said the present plan is
for the consultations to be held at United Tribes Technical College.
In response to a question regarding funding to enable tribes to comply with the new federal
requirements, Mr. Purdon said there is approximately $5,000,000 available to tribes for
implementation purposes. Michelle Parks observed that there is some uncertainty about funding
linked directly to pilot projects.
Chair Foughty thanked Mr. Purdon for his participation and encouraged him to keep the
Committee apprised of future efforts to address criminal law issues on the reservations.
Uniform Commercial Code in Indian Country
Scott Davis then introduced Susan Woodrow, Community Development Advisor, Federal
Reserve Bank - Minneapolis/Helena Branch, for a presentation on efforts to secure tribal adoption
of parts of the Uniform Commercial Code (UCC) to foster economic activity on reservations. Ms.
Woodrow participated by ITV connection from the Federal Courthouse in Helena, Montana. She
noted that her presentation would include much of the information presented at a conference on the
same topic held in Mandan in the Fall of 2012. She noted the importance of UCC provisions,
particularly Article 9 related to secured transactions, as a means of supporting and encouraging
increased business development and investment on reservations. She said a model tribal secured
transaction law had been developed by the Uniform Laws Commission with substantial input and
participation from a wide variety of tribal representatives. A PowerPoint version of Ms. Woodrow’s
presentation is on file with the Committee.
Scott Davis explained that ND Secretary of State Al Jaeger had been invited to the meeting to
discuss his office’s efforts with respect to UCC transactions and his invitation to tribes to become
involved in the state’s Central Indexing System, which would facilitate and reduce the cost of tribal
implementation of UCC provisions. He said Secretary Jaeger was unable to attend due to an earlier
commitment but had submitted a letter for Committee review. A copy of the letter is attached as
Chair Foughty thanked Ms. Woodrow for taking the time to share an extensive amount of
information with the Committee. He also thanked Scott Davis for his efforts in coordinating Ms.
Woodrow’s participation in the meeting. He expressed his appreciation to tribal council members
and tribal government staff for their attendance.
QUICWA Case Management - Enhancing ICWA Compliance
Chair Foughty next welcomed Paul Minehart and George McCauley of the Minneapolis
American Indian Center for a presentation of the case management monitoring system developed by
the Center for purposes of monitoring how Indian Child Welfare Act (ICWA) cases are handled.
Mr. Minehart distributed a brochure describing how the QUICWA Compliance Collaborative
Project operates. A copy of the brochure is attached as Appendix E. He said the Center has been
involved in court monitoring for more than twenty years. He said monitors observe ICWA
proceedings and take notes on how a particular case is processed. He said a quarterly report is then
generated which is provided to judges, prosecutors, tribes, and others. He said judges have generally
found the feedback on case processing to be very helpful with respect how the courts are handling
the cases. He said the reporting mechanism serves basically as a contribution for conversations, i.e.,
collaboration, among all those involved in ICWA case activities. He distributed a checklist tool that
is used by monitors to follow the progress of a case. He emphasized that the tool provides
information about “what” is occurring in the case, not “why” something is occurring. He said
participants in the particular jurisdiction know the “why’s” related to how cases are handled. He said
the objective is for the checklist tool and assembled information to facilitate discussion of changes
that may be required to enhance effective ICWA case processing. Additionally, he said subsequently
gathered data will assist in indicating how any changes that are made are affecting disposition of
cases. A copy of the checklist tool is attached as Appendix F.
Mr. Minehart further explained that a pilot project had been implemented in Rapid City, South
Dakota, in 2007-2008 and improvements in the disposition of ICWA cases were documented over
In response to a question from Judge Foughty about access to proceedings, Mr. Minehart said
that when the monitoring process was implemented in Minnesota, the chief judge of each district was
contacted and permission to attend hearings was requested. He said monitors attempt to attend every
hearing that has been identified as an ICWA case proceeding. He said a useful approach would be
to begin monitoring at the early stage of every juvenile proceeding. That, he said, would assist in
determining whether a finding is being made early in the process regarding whether an Indian child
is the subject of the proceeding.
Judge Delmore noted that juvenile proceedings, which would include ICWA cases, are
confidential under North Dakota law. That, he said, may limit monitor access to the proceeding. He
said, however, that tribes have a right to attend an ICWA proceeding. He noted that there are
instances in which a law student has been authorized to practice in a tribal court and that student
could, perhaps, attend the hearings on behalf of the tribe.
Mr. Minehart explained that an interesting finding when the monitoring process was
implemented in Minnesota was that simply accurately identifying a case as an ICWA case
contributed to in improvement in how the case was handled.
In response to a question from Michelle Parks, Mr. Minehart said court monitors try to attend
every proceeding related to a case that is being monitored. However, he emphasized that gathering
information with respect to particular stages of a proceeding, for example the shelter care hearing
or the adjudication hearing, will indicate how those particular proceedings conformed to ICWA
compliance measures. Ms. Parks observed that data sampling and collection from a range of
hearings, as described, may be a useful mechanism to illustrate the level of ICWA compliance.
Judge Marcellais wondered how a proper result can be identified if a case is not followed
completely. Mr. Minehart said the monitoring process and checklist do not identify issues and then
attempt to correct them. He said the process and checklist will, however, indicate what is occurring
at a given stage of the proceeding, which will then enable a discussion and determination regarding
With respect to implementation of a monitoring process, Mr. Minehart noted the checklist begins
with asking whether an Indian child is involved and whether ICWA applies. He said the question
should be asked at the initial stage and should be asked and a finding made at every subsequent
hearing. It may be, he said, that information will emerge confirming the tribal status of a child when
an earlier determination may have been otherwise.
In response to a question from Judge Medd, Mr. Minehart said a separate checklist is used for
every hearing. He said the gathered data would then be analyzed based on hearing type because every
question on the checklist may not be applicable to a particular hearing.
Michelle Parks explained that the Casey Family Foundation and the Law School have begun an
effort to establish an ICWA compliance project which will involve monitoring cases in Grand Forks
County and Cass County. She said law students will participate in monitoring cases. She said
discussions are underway with judges in the counties and court personnel to determine how the
project can move forward. Justice Crothers encouraged contact with Sally Holewa, the State Court
Administrator, so that she is aware of the project.
Chair Foughty thanked Mr. Minehart and Mr. McCauley for traveling from Minneapolis to share
information about the Center’s activities and ICWA compliance efforts.
Commission to Study Racial and Ethnic Fairness in the Courts - Update on Commission Report
Judge Foughty, who served as Co-Chair of the Commission to Study Racial and Ethnic Fairness
in the Courts, provided an update on the Commission’s Final Report and Recommendations. He
drew attention to Attachment D (April 26, 2013) - Supreme Court Administrative Order 21, which
establishes the Minority Justice Implementation Committee. He said the Implementation Committee
is charged with reviewing and determining ways to implement the various recommendations set out
in the Commission’s Final Report. He said Committee membership is being determined and the
Committee will likely have it’s first meeting in mid-summer.
Judge Marcellais said it would be important to include a Indian law question on the state bar
exam. It was noted that a Commission recommendation is that the Implementation Committee
discuss the feasibility of including an Indian law question on the Uniform Bar Examination. Judge
Marcellais noted circumstances in which lawyers seeking to practice in tribal court or who are
involved in a particular case clearly do not have an understanding of basic Indian law. Additionally,
she said there have been instances in which lawyers unfamiliar with tribal court have engaged in
disrespectful conduct that would not be tolerated in a state court.
Judge Foughty observed that the National Consortium on Race and Ethnic Bias may have
resources that could be useful to tribes. He said National Consortium members are particularly
interested in the activities of tribal courts. Additionally, he said a tribal law and policy group has
completed a draft report on tribal and state court collaboration. He emphasized the importance of
identifying more areas in which tribal and state courts could pursue collaborative efforts to improve
court services and the resolution of cases.
Chair Foughty noted that there are several membership vacancies on the Committee, particularly
tribal and state court support representatives. He asked that Committee members email to him any
membership suggestions they may have.
Committee members will be contacted about a date for the next meeting, likely to be held in the
next four months or so.
There being no further discussion, the meeting was adjourned at 3:00 p.m.