|Members Present |
Judge Donovan Foughty, Chair
Northeast Judicial District
Associate Juvenile Judge William Cavanaugh (for Interim Chief Judge Shirley Cain), Spirit Lake Tribal Court
Judge El Marie Conklin, Fort Berthold
Pam Hoffman, Civil Clerk, Standing Rock
Judge B.J. Jones, Sisseton-Wahpeton
Justice Carol Ronning Kapsner, North Dakota
Carla Marks, Pierce County Clerk of District
Judge Joel Medd, Northeast Central Judicial
Judge Lorrie Miner, Standing Rock Sioux
Janice Morley, U.S. Attorney's Office
Judge Everett Nels Olson, Northeast Judicial
Michelle Rivard, Tribal Attorney, Spirit Lake
Lanny Serrano, South Central District Juvenile Court
|Members Absent |
U.S. Magistrate Dwight Kautzmann
Judge Richard Frederick, Turtle Mountain Tribal Court
Rebecca Thiem, President, State Board of Law Examiners
Penny Miller, Clerk of the Supreme Court; Secretary-Treasurer, State Board of Law Examiners
Mike Schwindt, State Child Support Enforcement Office
After the evening dinner on October 10, Committee members briefly discussed the following: the possibility of further considering the development of a state Indian Child Welfare Act (ICWA), as other states have done; reviewing the interrelationship of ICWA and the Adoption and Safe Families Act; obtaining information on the availability to tribal and Bureau of Indian Affairs law enforcement of sex offender registration information maintained by the state; and inviting representatives of the Native American Training Institute to a meeting to discuss training and other matters related to ICWA enforcement. Jan Morley explained that Magistrate Judge Kautzmann is currently hospitalized and recovering from heart surgery. Committee members extended their best wishes to Judge Kautzmann for a speedy recovery. A card will be sent to Judge Kautzmann on behalf of the Committee.
Chair Foughty called the October 11 meeting to order at 9:30 a.m. and drew Committee members' attention to Attachment B (October 4, 2002) - minutes of the July 12, 2002, meeting.
It was moved by Judge Medd, seconded by Justice Kapsner, and carried unanimously that the minutes be approved.
With respect to the jurisdictional discussion concerning the Turtle Mountain Band, Jan Morley clarified that the letter sent by the assistant U.S. Attorney referred to in the minutes did not make funding for the tribal court contingent on the court taking certain actions. She said the letter concerned an ongoing investigation on the reservation and Judge Frederick considered the letter to be essentially an intrusion into an investigation of a political matter. There was, she said, a separate issue concerning funding available to the tribal court. It would be incorrect, she said, to imply that the U.S. Attorney's office directed the tribal court to take any specific actions.
Activities of the Standing Rock Sioux Tribal Court
Judge Miner then provided an overview of activities and changes in the Standing Rock Sioux tribal court. She explained that the tribal court consists of two courts: adult court with 12 employees- two vacancies at present, and a children's court with 6 employees. She said that as of October 3, there have been 2,834 criminal cases filed, while 2,704 cases were filed in all of 2001. She said the court has conducted twenty criminal jury trials this year, with eight currently scheduled for trial in November and another round of pretrial conferences set for December. She said civil matters are generally heard on Monday, Wednesday, and Friday morning and criminal matters are heard on Tuesday and Thursday. Arraignments, she said, are conducted daily at 3:00 p.m. She said the tribal court is inundated with requests for temporary restraining orders, which are sought for an entire range of issues. She said there is an effort underway to establish an elder council as an alternative dispute resolution mechanism for family disputes that are not well addressed in an adversarial setting. She said establishment of a child support enforcement agency is in the early stages and she has submitted a draft child support code to the Judicial Committee, which has approved moving forward with the project. The objective, she said, is to have the process in place within six months.
Judge Miner said tribal courts are presented with an entire range of legal issues and controversies and she is offended by the notion that tribal courts are not competent forums for resolution of disputes. She said tribal court staff are dedicated and hardworking, but she and court staff are burdened by being professionally isolated.
Marilyn Kary observed that a complicating factor for tribal courts is that lawyers appearing in court often are "lost", unaware of tribal court practices or relevant procedures. Judge Miner said lawyers appearing in her court are generally familiar with what is required and are respectful to the court. Michelle Rivard noted that it is not unusual for lawyers appearing in Spirit Lake Tribal Court to be generally unfamiliar with the tribal code. In response to a question from Judge Foughty concerning tribal codes on the Internet, Michelle Rivard said the tribe is currently awaiting funding for construction of a website.
In response to a question from Jim Fitzsimmons, Judge Miner said there are about six lawyers who appear regularly in her court. However, she said there are true legal needs on the reservation that are not being met because so few lawyers provide services in tribal court.
Michelle Rivard observed that the Connecticut Pequot Tribe has its own bar examination process which requires that prospective lawyers become familiar with tribal law and procedure. But, she said, a similar process might not work here because there are so few lawyers that are willing to appear in tribal court.
In response to a question from Judge Medd, Judge Miner said a one hundred dollar admission fee is required to practice in Standing Rock tribal court.
Judge Miner further explained that her court has one employee who serves civil papers. She said there is an effort underway to add one employee using fee and fine revenues so there would be two process servers - one for the North Dakota portion of the reservation and one for the South Dakota portion.
In response to a question from Jim Fitzsimmons, Judge Miner said the tribal court has an annual budget of between $420,000 and $460,000. She said fine and fee revenue is used to supplement the budget, which she finds troublesome. She said the tribal court recently received a court enhancement grant to fund an adult probation officer position and is also using the funding to establish a court information system.
In response to a question from Judge Medd concerning correction and juvenile facilities, Judge Miner said juveniles may be held in the tribal jail for up to six hours, and then are released to parents. She said the tribe contracts with the Cheyenne River tribe for a certain number of beds. She said the adult facility will hold up to sixty-two inmates.
In response to a question from Judge Foughty, Judge Miner said the court's current probation officer is not certified to conduct drug screening but there are plans to obtain certification.
In response to a question from Jim Fitzsimmons, Judge Miner said the tribal court provides a tribal advocate and there are several other advocates on the reservation. However, she said, advocates are limited in what they can do. For example, she said advocates are not involved in motions practice, e.g., motions to suppress, in criminal cases. She said as a general matter people appearing in tribal court are represented in criminal cases either by a lawyer or an advocate.
Marilyn Kary stressed the importance of educating the public as well as off-reservation lawyers about the tribal code and tribal court procedure.
Judge Foughty suggested the possibility of a representative from tribal court providing education as part of a state bar association legal education program. For example, he said, many lawyers may be interested in collection law on each reservation. Domestic relations, he said, may be another area for collaborative education efforts. Judge Medd agreed and said seminars for local bar associations might be particularly helpful.
With respect to training for advocates, Michelle Rivard suggested each tribe should establish an advocacy training program, along with a qualifications requirement, to improve the ability of advocates to represent people appearing in tribal court. She said it is important to keep in mind that each tribal court is different, but most are very accessible to the public. That quality, she said, should not be lost. Jim Fitzsimmons noted that there is a very successful tribal advocacy training program provided through a local community college in Wisconsin. Judge Conklin said the Northern Plains Tribal Judicial Training Institute recently conducted a week-long program for advocates.
With respect to education for lawyers, Committee members agreed the executive director of the state bar association and perhaps a lawyer who practices in tribal court should be invited to the next meeting to discuss what lawyers would find useful with respect to a program about tribal court practices and issues. It was noted that the Committee could possibly develop a list of desired topics and provide it to each tribal court. Judge Foughty said the most common areas to address would likely include collection practices, family law, and insurance issues.
Child Support Enforcement
Jim Fitzsimmons drew attention to a child support issue previously but briefly discussed by the Committee. He noted there are circumstances in which a person applies for public assistance and the child support enforcement agency asks whether there is an order for child support. From somewhere, he said, the person will find and present an order, perhaps an old one, which is then entered into the enforcement information system even though there may be three or four later orders. He said there does not seem to be an effective way of determining whether the order presented is a valid order. Carla Marks suggested the simplest way would be to contact the relevant clerk of court. Jim Fitzsimmons agreed but said that apparently has not happened in several situations.
Judge Miner said another problem is the apparent reluctance of the state to recognize child support paid to a tribal court. For example, she described a situation in which child support was being paid to the tribal court under a BIA wage withholding order and the recipient had applied for state public assistance. She said child support arrears continued to build in the state's system because the state would not take into account the child support being paid to the tribal court.
Michelle Rivard suggested the issue should be placed on the agenda for the next state child support enforcement education program.
Mike Schwindt said there are a series of problems that have been identified in this area, including jurisdictional issues and incomplete information, that frustrate enforcement action. But, he said, there is no doubt that collection of child support in tribal cases is unsatisfactory. He drew attention to September 2002 data concerning Fort Berthold child support payments received by the state child support disbursement unit. He said a similar list of data could be provided to each tribal court on a regular basis. He emphasized that there is a significant amount of bad or incomplete information in the system, which translates to enforcement actions that may not be warranted.
Michelle Rivard noted that most tribes in North Dakota are not yet in a position to enter into formal cooperative agreements concerning child support with the state because some of the prerequisites, such as appropriate tribal code provisions, have not been adopted. She wondered whether it would be possible, as an interim measure, for state and regional child support enforcement representatives to work with tribes to establish a protocol for sharing child support information and addressing enforcement issues.
Mike Schwindt described a recent meeting in New Orleans attended by representatives from eight states, nine tribes, and the federal government. He said one piece of information was that a cooperative agreement is not necessarily required. He said a purchase of service agreement can be used instead which can address any number of child support related issues. For example, he said, the Chickasaw Tribe has an agreement with the state of Oklahoma to use the state child support system to establish a single payment record. One complication, he said, is that the federal government is talking with tribes about developing their own computer systems, which has apparently resulted in the Chickasaw agreement being suspended pending the outcome of this computer system initiative. Additionally, he said federal regulations governing tribal and state relations concerning child support have not been finalized, which will directly affect the distribution of available funding. He said his office is willing to work with tribes to set the stage for cooperative agreements.
In response to a question from Jan Morley concerning available enforcement mechanisms when the obligor is on the reservation, Mike Schwindt said most enforcement measures are available, including freezing bank assets, tax intercepts, passport denial, and credit reporting. He said regional child support enforcement does not often appear in tribal court seeking to enforce child support orders. One reason, he said, is that to appear in at least one tribal court, the regional attorney must agree to take criminal cases in tribal court as appointed counsel. Jan Morley wondered whether the fact that the agency would be appearing in tribal court for enforcement purposes would make a difference in that regard.
Mike Schwindt reiterated that his office would be willing to discuss with tribes the possibility of developing a purchase of service agreement. The one limitation, he said, is that the agreement could not be finalized and signed until the federal regulations governing funding are final.
Mike Schwindt said a recent disappointing development is that Spirit Lake will no longer honor income withholding orders submitted to the casino. He said he is uncertain why that has occurred. Michelle Rivard explained that child support actions were not the reason for the change in practice. She said the casino's policy was to impose wage withholding in response to almost any kind of legal document submitted to the casino, which in practice meant that tribal court was simply bypassed with respect to whether the particular order or document should be honored. Consequently, she said, the present requirement is that a state order must be registered with the tribal court so the tribal judge can review the order and determine whether it should be recognized and enforced.
In response to a question from Carla Marks regarding the requirements for registering an order, Michelle Rivard said a certified copy of the court order and the income withholding order should be submitted. She said the tribal court will review the orders and cover them with a short tribal court order if recognition is appropriate. She said forms for recognition of foreign orders will be distributed in the near future. She said there is a filing fee for submitting an order for recognition, but child support enforcement could likely seek waiver of the fee. Mike Schwindt said waiver of the fee would be an important consideration for regional offices since they do not pay filing fees anywhere else. Jim Fitzsimmons said the procedure for recognition of judgments in the Fort Berthold tribal court is similar to what Michelle Rivard described.
In response to a question from Judge Foughty, Michelle Rivard said she would provide a copy of the recognition forms to the Committee for information and review.
Michelle Rivard said the new procedure at Spirit Lake would apply to any new orders submitted. She said withholding in response to previously submitted orders would continue. She noted that the new procedure was intended in part to rectify situations in which employees were having significant amounts withheld from paychecks as a result of numerous garnishments or withholding orders being combined. The procedure, she said, would afford the tribal court the opportunity to review the orders to ensure excessive amounts are not withheld.
With respect to sharing information, Judge Foughty said it appears there is no systematic method for ensuring that the state child support enforcement office receives pertinent information regarding tribal child support orders. On the other hand, he said, the state likely does not need the information unless the person receiving support applies for public assistance or requests enforcement services through the state or regional offices. In either of those circumstances, he said, it is important that the state receive accurate information concerning the tribal court order.
Michelle Rivard reiterated, and Mike Schwindt agreed, that a protocol for sharing information concerning child support would be very helpful.
ASFA - ICWA Issues
Chair Foughty next drew attention to the Committee's previous discussion of issues concerning implementation and coordination of requirements under the Adoption and Safe Families Act and the Indian Child Welfare Act. Staff noted Attachment C (October 4, 2002) - Nebraska and Oklahoma Indian Child Welfare Acts - and the Committee's earlier discussion concerning the possibility of developing a state ICWA for North Dakota, particularly in light of some state court decisions questioning the constitutionality of the federal Act. Judge Medd suggested the Legislative Assembly might be reluctant to consider a state equivalent to ICWA based on the possibility that the federal act may be declared unconstitutional. Judge Foughty said a better approach might be for the Committee to simply be prepared to respond in the event there is a definitive finding concerning ICWA's constitutionality. Staff will assemble information for future review by the Committee.
Recognition of Tribal Court Orders and Judgments - Rule 7.2
At the request of Chair Foughty, staff briefly reviewed Rule 7.2 of the North Dakota Rules of Court, which provides for the recognition and enforcement in state courts of tribal court orders and judgments. He said Rule 7.2 has been in place for some time and is on the agenda simply for discussion concerning its operation and whether there is a need to consider any adjustments to the rule.
Jim Fitzsimmons said he often collects in state court on tribal court judgments and has not experienced a problem with the rule's operation. He said he regularly files tribal court judgments for recognition in Mountrail County.
With respect to the recognition and enforcement of protection orders, Michelle Rivard said one complication is that the caption on Spirit Lake tribal orders refers to "restraining" order rather than to protection order. As a consequence, she said, off-reservation law enforcement is reluctant to enforce the order without it having been registered with the state court. Judge Foughty noted that in his presentations at the Police Academy he has explained that if the officer has probable cause to believe that a protection order exists, the officer must make the arrest. Michelle Rivard said the more common event is that law enforcement will respond to the incident and try to defuse the situation, but will go no further. Judge Conklin said the tribal code's restraining order provision probably would support the issuance of a "domestic violence protection" order because it is directed at restraining conduct in a domestic relations context.
Lanny Serrano wondered how the process would work with respect to a pick and hold order regarding a juvenile. Judge Foughty said when he receives notice of a pick up and hold order, he issues an order that the juvenile be picked up and then proceeds through an extradition process.
Indian Law Question on Bar Examination
Chair Foughty welcomed Becky Thiem, President of the State Board of Law Examiners, and Penny Miller, Clerk of the Supreme Court and Secretary-Treasurer of the State Board, to the meeting for a discussion of the prospects for adding an Indian law question to the state bar examination. He invited comments from Committee members to begin the discussion.
Jan Morley observed that controversies related to Indian affairs are becoming more frequent within the state and it would be helpful if there were greater emphasis placed on Indian law in law school. She noted that if there is an Indian law question on the bar examination, students would be more likely to take an Indian law course in law school, thereby obtaining a more rounded education and providing a basis for more effective practice of law in the area. With respect to specific Indian law issues, she said knowledge by defense attorneys of the jurisdictional issues that arise in federal prosecutions involving Indian defendants, familiarity with ICWA requirements, methods for enforcing tribal judgments, and child support enforcement and custody are areas in which there is a need for a more detailed understanding of Indian law principles.
Michelle Rivard agreed criminal defense and family law issues are where issues often arise, but noted the increase in corporate transactions and contractual disputes that require an understanding of potential jurisdictional issues. Additionally, she said there are many service providers coming on the reservations to conduct business and lawyers representing those businesses should be able to effectively advise their clients about the consequences and responsibilities when doing business on the reservation.
Jim Fitszimmons said many lawyers, when representing a Native American client, are unfamiliar with the consequences associated with whether the action at issue occurred on or off the reservation. He said there is a knowledge vacuum that may impair the ability of lawyers to provide effective representation.
Becky Thiem agreed there is, particularly in North Dakota, the possibility that an Indian law issue will arise in virtually any area of legal controversy. She said applicable Indian law principles should probably be taught in every law course. And she agreed that prospective lawyers should be able to at least recognize the issues involved. The bar examination, she said, essentially tests the ability to recognize basic legal principles in identified areas of law. Currently, she said, there is an ongoing debate concerning exactly what the focus of bar examinations should be. She said historically in North Dakota essay questions were drafted for the state examination, but in 1999 the state board agreed to participate in the national multistate essay process. That process, she said, provides a series of seven questions from which each participating state selects six to include in the examination. The fact that there are only seven questions and six ultimately selected, she said, means that some areas of law are not tested. For example, she said, the areas typically include trusts, wills and estates, family law, secured transactions, commercial paper, partnerships, civil procedure, conflicts, and corporations. As a general matter, she said, it appears the emerging approach with respect to bar examinations is similar to that now in place for the medial profession, and that is a national examination applied across the board.
Becky Thiem further explained that administration of North Dakota's bar examination is limited to two identified days, with the preselected questions as well as a performance component. She wondered how an Indian law question could be incorporated at this point while also testing, within the limited time, on the other required areas. She suggested the possibility of attempting to have an Indian law question included in the national multistate essay, or at least have it included as an aspect to be tested in other subject matter areas. She noted there has been some discussion at the national level of addressing Indian law issues in the examination process.
Penny Miller observed that the number of licensed attorneys in North Dakota have declined slightly over recent years and the number of individuals taking the bar examination have also declined. With respect to licensing attorneys to practice in tribal courts, she asked whether any of the tribes require attorneys to complete a mandatory course of education regarding Indian law issues. Jim Fitzsimmons said he is unaware of any such requirements among North Dakota's tribes but some tribes around the country do have an examination process.
Becky Thiem said another possibility is to include Indian law components in various subject areas addressed in continuing legal education programs for lawyers. The complicating factor, she said, is that many within the bar see Indian law as a specialty area.
Judge Foughty suggested the possibility of contacting the national bar examiner organization and suggesting consideration of incorporating an Indian law component in subject areas tested in the mutlistate essay.
Chair Foughty drew attention to Attachment F (October 4, 2002)- the 8th Circuit's recent decision in U.S. v. Lara - and invited discussion of related jurisdictional issues.
Jan Morley explained that Lara addressed the issue of whether federal prosecution of a non-member Indian for an offense previously prosecuted in Spirit Lake tribal court violated the prohibition against double jeopardy. She noted that Lara had also argued in federal court that the federal prosecution amounted to selective prosecution because the U.S. Attorney's policy was not to prosecute for acts that resulted in previous state or federal convictions, but the policy did not apply to earlier convictions in tribal court. The 8th Circuit, she said, rejected the selective prosecution claim and found that federal prosecution did not violate double jeopardy because tribal authority to prosecute Lara was a reflection of tribal sovereignty, which the court concluded was recognized by Congress in legislation responding to the U.S. Supreme Court's earlier decision in Duro v. Reina. After the 8th Circuit's 2-1 panel decision, she said, Lara requested an en banc hearing and arguments on the request were held on September 11. One outcome, she said, may be that the 8th Circuit may conclude that the tribe did not have authority to prosecute a non-member and the tribal conviction would be void. If that occurs, she said, one consequence could be that a tribal court, before even accepting a plea, would have to determine whether the defendant is a non-member. If the defendant is a non-member, she said, the U.S. Attorney's office would have to be notified so federal prosecution could be considered. In this circumstance, she said, a non-member Indian prosecuted in federal court would have a conviction record, while a tribal member prosecuted in tribal court for a like offense would not. She noted that the 9th Circuit, in U.S. v. Enas, reached a conclusion similar to that reached by the 8th Circuit in Lara, and a recent case in the 1st Circuit considered whether the Menominee tribe, having been terminated, retained any inherent authority or only that authority delegated by Congress.
In response to a question from Judge Foughty, Jan Morley said she suspects the 8th Circuit may ultimately decide, if the authority for the tribe to prosecute is considered to have been delegated by Congress, that Congress could not, in fact, delegate that authority to tribes in response to Duro and, in effect, override that decision. She noted that during oral arguments before the 8th Circuit panel one judge asked what the effect would have been if the tribe did not have jurisdiction. The question, she said, may indicate some sympathy for the conclusion that even if it were determined that the tribe lacked jurisdiction, the opportunity for prosecution would not be lost because the federal government could prosecute.
Jim Fitzsimmons noted the U.S. Supreme Court's early decision in Wheeler that the federal government and the tribes could prosecute for the same criminal act because both were separate sovereigns. He wondered whether Lara might become an effort to skirt Wheeler by concluding that the tribe and the federal government obtain their authority from the same sovereign - Congress - so that if the tribe prosecutes, then the federal government would be precluded from prosecuting the offense. Jan Morley said the more likely argument, and one made by Lara, is that it is the tribe that is precluded from prosecuting the offense. Jim Fitzsimmons said the key to the ultimate outcome may be Judge Hansen's dissent in Lara in which he says the power of the tribe to punish non-member Indians arises from congressional delegation and, therefore, the tribal court and federal court derive their authority from an identical source - Congress. The consequence, he said, is that the dual sovereignty limitation on protection against double jeopardy would not apply and once one or the other - tribal or federal - had prosecuted, the other could not. Jan Morley noted the potential for equal protection problems if it is concluded the tribe has no jurisdiction, leading to situations, for example, in which a non-member Indian on the reservation is subject to federal prosecution while that person's wife, who is a tribal member, is not. Both, she said, would be entitle to rights and benefits as residents on the reservation, but would be treated differently for purposes of prosecuting criminal offenses.
Additionally, Jan Morley noted that tribal courts are not courts of record. Consequently, she said, if the U.S. Attorney's office conducts a criminal history review on a defendant any tribal convictions will not be available when applying federal sentencing guidelines. That, she said, is not useful when dealing with individuals who are a recognized risk to the community.
2003 Meeting Schedule
Committee members discussed the meeting schedule for 2003 and concluded four meetings should be scheduled, with the first held in Bismark, and the second in New Town in the spring or early summer. Locations of the remaining meetings would be determined at a later time.
There being no further discussion, the meeting was adjourned at 2:00 p.m.
Jim Ganje, Staff