Committee on Tribal and State Court Affairs October 5, 2007, Meeting Minutes

Committee on Tribal and State Court Affairs

MINUTES

(Unofficial until approved)

Committee on Tribal and State Court Affairs Four Bears Lodge; NewTown, ND November 6, 2009

Members Present
Judge Donovan Foughty, Chair,
Northeast Judicial District
Judge William Cavanaugh, Spirit Lake Nation Tribal Court (on behalf of Judge June Gourd)
Judge Vance Gillette, Fort Berthold District
Court
Justice Carol Ronning Kapsner, North Dakota Supreme Court
Marilyn Kary
Judge Joel Medd, Northeast Central Judicial District
Michelle Rivard Parks, Associate Director, Tribal Judicial Training Institute; Tribal Attorney, Spirit Lake Nation;
Brad Peterson
Judge Michael Sturdevant, Northeast Judicial District
Judge William Zuger, Standing Rock Sioux
Tribal Court

Members Absent
Rebecca Absey, Grand Forks County, Clerk of District Court
Judge B. J. Jones, Sisseton-Wahpeton Tribal Court
Judge Madonna Marcellais, Turtle Mountain Tribal Court
Nicole ManyHorses, Court Administrator, Standing Rock Sioux Tribal Court
David McGeary, Director of Juvenile Court, South Central Judicial District

Others Present
See Appendix A for a list of other attendees

Chair Foughty called the meeting to order at 9:45 a.m. and welcomed those in attendance. He provided a brief overview of how the Committee was established and emphasized its intended purpose to serve as a vehicle for discussing issues of common concern to tribal and state courts. He said he was pleased with the number of tribal members attending the meeting and then turned to Judge Vance Gillette, Chief Judge of the Fort Berthold District Court, and court staff for an overview of the operation of the tribal court.

Fort Berthold District Court - Operation

Judge Gillette welcomed the Committee to the Fort Berthold Reservation, home of the Three Affiliated Tribes - the Mandan, Hidatsa, and Arikara. He briefly explained the general structure of the Fort Berthold District court, noting that the court as an annual caseload of approximately 2,000 criminal cases and 500 civil cases. He said the court participates as a member of the Northern Plains Intertribal Court of Appeals. He noted the recent increase in oil exploration activity on the reservation, which has brought more income to the reservation but has also contributed an increase in social problems.

Judge Gillette then introduced Norma Baker, Juvenile Supervisor, for a more detailed review of the tribal court's operation.

Ms. Baker explained that the Fort Berthold District Court consists of three general departments: criminal, civil, and juvenile. She said there is also a child support department with a dedicated judge.
She said the tribal court uses the Full Court information and case management system, into which all relevant case information is entered by court staff.

With respect to the criminal department, Ms. Baker said criminal cases are handled by a prosecutor and an assistant prosecutor. In the event of a guilty plea in a case, she said bond is considered and then sentencing occurs a later time. She said drug and alcohol evaluations are often required. In the event a defendant pleads not guilty, she said a pre-trial hearing date is set and bond is considered. She said the defendant meets with the prosecutor at the pre-trial hearing and evidence in the case is presented. If there is no agreement regarding disposition without a trial, she said, a trial date is then considered. She said probation officers are available in the criminal department to monitor compliance with conditions, conduct intake screening, follow up on required evaluations and drug testing, and to monitor home confinement.

With respect to the civil department, Ms. Baker said the department is supported by a civil clerk and has two associate judges and a magistrate available to handle cases. She said the caseload is comprised generally of adoptions, protection orders, child custody matters, and commitments.

With respect to the juvenile department, Ms. Baker explained that when a citation is received the information is entered into the Full Court system. She said the information may then be referred to her, as juvenile supervisor, for purposes of review and consideration of whether an informal or formal disposition is required. She said rehabilitation and treatment services for juvenile offenders are available, although not consistently, through the Parshall Resource Center, the Circle of Life program, and off-reservation providers such as local treatment centers and Aberdeen Area Youth Treatment Services. She said finding adequate treatment and rehabilitation services for juvenile offenders is a continuing problem, which is often made worse if insurance coverage for the services is unavailable. She said procedures were recently put in place which permit the transfer of a juvenile to adult tribal court depending the severity of the offense, criminal history, and other factors. She said a detention hearing is generally held following the filing of a transfer petition to determine whether detention is necessary. She said notice of the petition is sent to the juvenile and the parent or guardian.

Ms. Baker explained that a public defender is available for adult and juvenile court hearings. She said the public defender can also serve as a guardian ad litem in juvenile court.

In response to a question from Judge Foughty, Ms. Baker said juveniles had been placed at the state Youth Correctional Center but the cost ($180 per day) was too high for the tribe to continue such placements. She the tribe has now developed a facility under a 638 contract for housing juvenile and adult offenders. She said juvenile offenders are placed in an area separated by a wall from adult offenders. She said physical facility limitations unfortunately limit the scope of rehabilitation services that can be provided in the facility.

In response to a question from Judge Medd regarding jury trials, Ms. Baker said jury trials are available in civil and criminal cases if requested. She said the tribal enrollment list is the main source for jury selection, although other sources are sometimes used.

In response to a question regarding whether cultural factors are observed in the disposition of particular cases, Ms. Baker said it is difficult to address cultural issues in court cases as the tribal court deals with members of three distinct tribes - the Mandan, Hidatsa, and Arikara - with unique cultural heritages, although the three tribes are under the general governance of one entity.

In response to a question from Judge Cavanaugh regarding truancy issues, Ms. Baker said truancy rates are very high and efforts are underway to develop a uniform procedure regarding when reports are made and to whom. Judge Gillette said it is critically important that the schools become more proactive in dealing with chronic truancy.

Chair Foughty thanked Judge Gillette and Ms. Baker for an informative presentation.

Domestic Violence Protection Order Project - Enforcement and Response

Michelle Parks, Associate Director of the Tribal Judicial Training Institute, then provided a summary of recent and ongoing efforts to encourage better enforcement and recognition of protection orders. She said grants were recently provided to the ND Department of Health and the ND Coalition on Abused Womens Services through the federal Grants To Encourage Arrest (GTEA) program. The objective, she said, is to encourage the arrest and enforcement of protection orders and to establish and implement policies regarding responses to domestic violence and sexual assault. She said the Institute's involvement and goal is to facilitate a dialogue among state judges, advocates, and law enforcement to improve the response to domestic violence cases and to victims.
Ms. Parks said a precursor to this recent effort began in 2003-2004 with funding from a STOP grant. That project, she said, involved surveying law enforcement agencies across the state to determine whether policies on the effective response to domestic violence had been developed. She said that of the 108 agencies surveyed, only 36 had policies in place and the majority of those agencies were sheriffs' departments. She noted that tribal law enforcement agencies were not included in the survey conducted under the STOP-funded project.

Ms. Parks said that following the survey project, GTEA program funding was used to initiate a program directed at developing a general domestic violence response policy and to develop a policy for law enforcement. She said the policies were endorsed by the ND Attorney General's Office, the ND Sheriffs Association, and the North Dakota Police Chiefs Association. She said the policies were forwarded to the Bureau of Indian Affairs with the hope that the Bureau would serve as a mechanism to get the policies to BIA law enforcement.

Ms. Parks said the tribal component of these projects involved a roundtable discussion with tribes conducted by the Institute. She said recommendations resulting from the roundtable included development of "template" domestic violence policies and procedures and a "template" protection order form, including a face sheet for pertinent offender information. She said the use of "template" forms was considered more useful than model forms as the template forms were intended to be flexible and adaptable in meeting the needs of particular tribal courts, rather than suggesting one general "model" form for all courts. She said that even with the use of template orders ensuring the immediate recognition and enforcement of the order by state law enforcement remains a problem. She noted that under federal law, tribal protection orders are entitled to full faith and credit recognition. She said the roundtable discussion suggested such recognition is infrequent, perhaps for personal or political reasons, but also because tribal protection orders often do not "look like" orders state law enforcement officers are accustomed to seeing.

Judge Zuger said another complication with recognition and enforcement is the requirement that the order must be "certified" to be enforceable under federal law. He said when orders are issued in his court, the victim is given certified copies of the order.

Judge Foughty suggested state's attorneys should be contacted so they could ensure sheriffs and other law enforcement agencies are aware of the federal full faith and credit requirement.

Judge Gillette emphasized the difficulties when a non-Indian violates a state protection order on the reservation. The tribe, he said, does not have criminal jurisdiction to prosecute the violator. He said the federal government, which has jurisdiction, often will not prosecute the violation and the state has no jurisdiction over the violation occurring on the reservation. He said registration of a protection order for enforcement purposes is fine in theory, but it is often of little help if the violation of a state order occurs on the reservation.

Ms. Parks said the GTEA process for 2009-2010 will focus on sexual assault policy reviews, and follow-up and updating domestic violence policies. She said process objectives include development of a brochure concerning strangulation and a review of firearms issues in domestic violence cases. She said education courses are planned for tribal and state judges.

Ms. Parks asked that anyone interested in participating in the GTEA process contact her.

Commission to Study Racial and Ethnic Fairness in the Courts

Judge Foughty and Justice Kapsner, Commission Co-chairs, then discussed the recent establishment by the North Dakota Supreme Court of the Commission to Study Racial and Ethnic Fairness in the Courts.

Justice Kapsner said funding for the Commission was requested and provided as part of the judiciary's appropriation during the last legislative session. She said the Commission will focus on gathering and analyzing information about court practices and procedures and their possible impact on racial and ethnic fairness. She said the Commission has a broad-based, diverse membership consisting of judges, attorneys, tribal representatives, and representatives from social services and the corrections department, and others. She said after the Commission has reviewed and analyzed the information gathered during the study process, recommendations will be made to the Supreme Court regarding what the Commission has learned.

Judge Foughty said the Commission's work may include some form of internal audit of how cases involving minorities are handled. He noted that Native Americans are the largest minority group in the state. He said a well-known troubling statistic is that Native Americans make up 23% of the penitentiary population while being only 6% of the state population. He said a basic question is whether Native Americans are going to prison because they are Native American or whether a complex of other reasons accounts for the disparity. He said the Commission may also consider some issues related to civil litigation and minorities and may also review issues regarding jury service among minority populations, particularly Native Americans. He emphasized that the Commission's central focus will be the process and procedures of the courts and not the actions or practices of other entities of state and local government such as law enforcement or social services.

In response to a question from Judge Gillette regarding the Commission's study process, Judge Foughty said the Commission will conduct meetings or hearings, including meetings on reservations, and may also use focus groups to gather information

In response to an observation from the audience, Judge Foughty said sentencing practices regarding Native American offenders versus non-Native American offenders may be a point of study. He noted that statistics indicate that the majority of Native Americans on supervised probation who face probation revocation are usually revoked for a technical probation violation, such as failing to meet with the probation officer, rather than for the commission of a new crime.

Judge Foughty noted that there are initiatives underway in some communities such as Grand Forks and Devils Lake to provide community-based treatment and other services for Native Americans released from prison. The objective, he said, is to provide support services to help ensure that those released do not return to prison. He said he has been particularly impressed with the enthusiastic community response in the Devils Lake area.

Justice Kapsner agreed that the Commission can only specifically address issues related to racial and ethnic fairness in the state court system. However, she said the information gathered by the Commission may also prove useful in other areas.

Child Support Enforcement - Issues and Updates

Chair Foughty welcomed Mike Schwindt, Director, State Child Support Enforcement Program, for a review of recent state child support activities involving the tribes.

Mr. Schwindt explained that the Three Affiliated Tribes has now implemented a fully comprehensive child support enforcement program. The most significant result of that development, he said, is that children on the reservation now receive services that could not be provided by the state program. He thanked the tribal child support program personnel for the excellent working relationship that has been developed with the state office. He noted that work is underway on a memorandum of understanding that will afford access by the tribal program to the state's Fully Automated Child Support Enforcement System, which will enable federal tax intercepts to collect child support amounts.

Mr. Schwindt noted that the Standing Rock Sioux Tribe and the Spirit Lake Nation are also considering application to establish their own child support enforcement programs.

Mr. Schwindt explained that the state office had recently renegotiated a genetic testing contract with the federal government and specific language was included to allow tribal access to the testing program for child support enforcement. He said the change should provide access to genetic testing for tribal programs at a lower cost.

With regard to remaining issues, Mr. Schwindt said there are still jurisdictional issues that complicate child support enforcement efforts. He said there is an ongoing desire to have more state child support attorneys active in tribal court for enforcement proceedings. He emphasized the continuing importance of ensuring that child support data involving tribal members subject to state orders is complete and accurate. He said oftentimes there is no information regarding any enforcement action taken by a tribal court or whether, for example, payments have been made from one parent directly to another. He said the state system is required to pursue action based on information available to it, and if that information is incomplete then inappropriate enforcement measures may be taken.

Judge Gillette observed that some child support amounts owed are enormous and wondered whether the amount owed can be reduced through in-kind contributions. Mr. Schwindt responded that one of the advantages of having a tribal program is a plan can be established that allows in-kind contributions. The state program, he said, is limited to collecting dollar amounts. Michelle Parks asked whether a tribe could, in fact, establish a program involving in-kind contributions since federal regulations require the tribe to adopt income guidelines similar to the state. Mr. Schwindt said he is aware of tribal programs in Arizona and Washington that allow for in-kind contributions.

In response to a question from Judge Foughty, Mr. Schwindt said the person to whom child support is owed can stipulate to forgiveness of part of the child support amount owed as long as a judge signs off on the agreement and receipt of public assistance is not involved.

General Committee Discussion

Placement and Treatment of Juvenile Offenders. In response to a question from Judge Gillette, Norma Baker explained the difficulties associated with securing adequate treatment for juvenile offenders. She noted that there is no treatment facility on the reservation for juvenile offenders. She said obtaining treatment services elsewhere is much easier for children with access to insurance, either through the tribe or through a parent. Additionally, she said, there are difficulties simply placing juvenile offenders since some insurance policies will not cover services if the juvenile is in detention. Michelle Parks noted that the Spirit Lake Nation at one time had an agreement with the Lake Region Human Services Center through which the center would send counselors to the reservation to provide services.

Alcohol and Mental Health Treatment for Adults. Judge Gillette observed that the tribe appears not to have the same level of access to the State Hospital for mental health commitments as the state does. He said when the tribal court considers a commitment for treatment, it is often necessary to send the respondent to Minot, Williston, or some other location rather than the State Hospital. He said the Turtle Mountain Tribal Court seems to be able to place tribal members at the State Hospital.

Judge Foughty said that some time ago a requirement for a local "gatekeeper" function was established to enable the provision of treatment services locally before a person is placed at the State Hospital. Typically, he said, that gatekeeper function is performed by regional human service centers. Judge Gillette wondered whether the Department of Human Services could identify individuals on the reservations to perform this gatekeeper function. He said another difficulty regarding placing tribal members off the reservation for treatment is that law enforcement is sometimes reluctant to recognize tribal transport orders.

Cross-deputization. Judge Gillette said there is continuing difficulty in obtaining cross-deputization agreements between the tribes and local law enforcement. He said tribes are to meet in the near future with the state Attorney General to discuss methods of handling traffic violations on the reservations.Without a cross-deputization agreement, he said, tribal police who stop a non-Indian violator on the reservation must wait on the road-side for the sheriff to arrive.

Jennifer Fyten, an attorney in the Three Affiliated Tribes Legal Department, explained that the state will not recognize training received by tribal police for cross-deputization purposes.

An audience member noted that state legislation was enacted in 2007 which addressed issuance of a state peace officer license to a tribal police officer when there is a cross-deputization agreement.

With respect to enforcing traffic violations committed on the reservation by a non-Indian, Judge Foughty wondered whether it might be worthwhile to consider an agreement, or state law changes if necessary, that would allow tribal law enforcement to report the violation to the state Department of Transportation for purposes of assessing points in a manner similar to point assessments for violation of state traffic laws.

Sex Offender Registration. Jennifer Fyten explained that the Three Affiliated Tribes has adopted a resolution and accompanying statute establishing a tribal sex offender registration and notification process. She said a registration form has been adopted and the tribe is moving forward with establishing a registration system under the federal Sex Offender Registration and Notification Act (the "Adam Walsh" Act). Copies of the resolution, statute, and registration form are attached as Appendix B.

Michelle Parks said the Spirit Lake Nation has applied for a grant to implement a registration process and has developed a related tribal law. She said there will be general implementation issues in the future regarding, for example, state court awareness of a tribal court conviction that requires registration.

Planning in Tribal Court. Judge Gillette observed that the tribal court does not have a formal structure or staff support for a planning function. He said there is a need to review the court structure and employee requirements for the short term and into the future. He said there are a number of different programs at work in the tribal court but coordination among the programs to enhance services is insufficient.

Carol Chapin, Criminal Court Clerk, said there is a need for a head or supervising clerk who can review and direct filings to the appropriate department. Currently, she said, that function is performed by the receptionist. Additionally, she said, more clerk personnel are needed and all clerks should be trained on the tribe's civil and criminal code.

Committee Memberships

Chair Foughty explained that there are vacancies in Committee memberships and expired terms to be addressed. He said a particular vacancy is with respect to a tribal court support representative, which has traditionally been a clerk, court administrator, or similar court support position. Judge Gillette suggested that Carol Chapin should be considered for Committee membership.

After discussion, Committee members agreed Carol Chapin will be recommended for appointment to the Committee as a tribal court support representative.

The Committee's next meeting will be at the call of the Chair.

There being no further discussion, the meeting was adjourned at 2:25 p.m.

______________________________
Jim Ganje, Staff