U.S. Magistrate Dwight Kautzmann
Judge Rochelle Ducheneaux, Spirit Lake Tribal Court
Carla Marks, Pierce County Clerk of District Court
Judge William McLees, Northwest Judicial District
Michelle Rivard, Tribal Attorney, Spirit Lake Nation
William Marcellais, Chief Prosecutor, Turtle Mountain Tribal Court
Dale Brien, Director, Alternative Court and Technology Services, Turtle Mountain Tribal Court
Mildred Berryhill, Magistrate, Fort Berthold District Court
Mike Schwindt, State Child Support Enforcement Office
Following the evening dinner and discussion on October 23, Chair Foughty called the October 24 meeting to order at 9:30 a.m. and drew attention to Attachment B (October 16, 2003) - minutes of the June 5-6, 2003, meeting.
It was moved by Judge Miner, seconded by Dave McGeary, and carried unanimously that the minutes be approved.
Activities of the Turtle Mountain Tribal Court
Judge Marcellais distributed a fiscal year court report outlining the operation, activities, and future projects for the Turtle Mountain Tribal Court. The report is attached as Appendix A. She explained that the June 2003 fire had seriously affected the operation of the tribal court, but court staff responded admirably and worked very hard to maintain court services. She noted that the court is making progress on implementing recommendations contained in an eleven point plan issued by the Bureau of Indian Affairs regarding court improvements.
In response to a question from Judge Miner, Judge Marcellais explained that the tribal court operates under a 638 contract with the BIA and the bureau's recommendations for improvement were tied to continued receipt of 638 funds. She said case backlog was a significant issue and noted, for example, that before she became judge there were no pre-trial conferences held in criminal cases. Now, she said, pre-trial conferences are routinely scheduled and it has aided significantly in addressing the court's backlog of cases. She said another troublesome issue concerns money owed the court for forfeited bonds which has not been paid over to the court by bondsmen. She said there have been a number of instances in which a bondsman has not submitted the forfeited bond amount to the court after the defendant has fled the jurisdiction.
William Marcellais, Chief Prosecutor for the Turtle Mountain Tribal Court, next provided an overview of court caseload and related information. Mr. Marcellais explained that his office handles prosecution of all criminal offenses identified under the tribal code. He said that in the month of September there were 142 criminal offenses committed on the reservation, including 105 traffic offenses. He noted that domestic abuse has become a significant portion of offenses With respect to traffic offenses, he explained that such offenses historically have not been reported to the state drivers license authority, but there is an effort underway to secure tribal council support to begin reporting. Mr. Marcellais further explained that offenses involving narcotics and dangerous drugs have worsened as a result of the growing presence and impact of methamphetamine. He said his office handles approximately 40-60 juvenile petitions each month and many involve alcohol or drugs.
With respect to the recent implementation of pretrial conferences, Mr. Marcellais agreed the conferences have aided in timely disposition of cases. He said that in the month of July 98 cases were adjudicated out of 140 cases before the court. In the month of August, he said, 70 cases were adjudicated. He said the tribal court is well on its way to clearing its backlog and becoming current with its caseload. Nevertheless, he said, the caseload continues at a significant pace. He said during September through December, there were nearly 100 criminal cases scheduled for trial, including bench trials and approximately 12 jury trials per month. With respect to the issue of unpaid, forfeited bonds, he said there is approximately $70,000 to $80,000 currently owed to the court in forfeited bonds.
Mr. Marcellais further noted that a completely revised domestic violence code was recently adopted, which should prove useful in handling domestic violence cases. In response to a question from Judge Foughty regarding full faith and credit, Carrie Francis said the new code is fully compliant with the federal Violence Against Women Act regarding full faith and credit recognition and enforcement of protection orders.
Judge Foughty wondered whether the state's automated protection order process could accommodate entry of tribal court orders.
Staff observed that work was recently completed on a domestic violence benchbook for state judges. He said the benchbook is based on state law, but also provides information concerning the dynamics of domestic violence, full faith and credit requirements, and cultural issues that might be involved in domestic violence cases. He asked whether the benchbook could serve as a resource for tribal courts, even though it is based on state law. Committee members agreed the benchbook could be a useful information resource for tribal judges.
In response to a question from Justice Kapsner, Judge Marcellais said the tribal court currently has two public defenders.
In response to a question from Judge Foughty concerning jail space, Judge Marcellais said the present jail has space for 32 inmates. She said there is no local juvenile detention facility available.
In response to a question from Judge Foughty, William Marcellais said juveniles that commit felony-level crimes are generally waived into adult court. David Hagler noted that some serious juvenile offenders have been prosecuted in federal court, but the U.S. Attorney's office typically prefers to defer to the tribal court.
In response to a question from Dave McGeary, Judge Marcellais said the tribe is not currently contracting with the state's Youth Correctional Center for juvenile beds because of funding limitations.
In response to a question from Chair Foughty, Judge Marcellais said it would be helpful to have a presentation concerning possible resources for placing juveniles and what is available through the state's Division of Juvenile Services.
At the request of Judge Marcellais, Dale Brien then provided an overview of technology enhancements in the tribal court. He explained that the court had recently received a tribal court enhancement grant that required development of a data and case management system. He said he is currently finalizing implementation of a new system to handle fines and fees assessed by the court. The previous system, he said, did not provide any mechanism for detailed entry and tracking of information concerning fines and fees, and information was generally maintained within individual case files. The new system, he said, tracks what is owed and what is paid. He said the judges and clerks can view the information, but cannot change any information with respect to financial obligations. At the present time, he said, he is the only one that can change data in the system files, and all changes are confirmed by email. With respect to collections, he said the court currently collects approximately 43% of fines assessed in juvenile cases and 32% in adult cases. Charts depicting the operational aspects of the system are attached as Appendix B.
In response to a question from Judge Foughty, Dale Brien said the new system only tracks accounts receivables; a new case management system has not yet been developed. He emphasized the need for a computerized master court calendar so that judges and court personnel are kept adequately informed of court business. Additionally, he said a case management data base would ensure there is a mechanism in place to monitor caseload and any developing backlogs.
U.S. Attorney's Office - Update
At the request of Chair Foughty, David Hagler provided an overview of recent activities in the U.S. Attorney's Office concerning issues in Indian country. He noted that there have been several recent personnel additions in the U.S. Attorney's office. He explained that he is the primary prosecutor for federal offenses occurring on the Turtle Mountain Reservation and Rick Volk is the primary prosecutor for offenses occurring on the Standing Rock and Fort Berthold Reservations. He encouraged tribal court judges and personnel to contact him or Mr. Volk if there are any issues or questions involving activities of the U.S. Attorney's office. He noted a recent issue concerning state court jurisdiction over a DUI offense committed on the Turtle Mountain Reservation by a non-Indian. He said the matter was prosecuted in state court, but in response to a motion to dismiss for lack of jurisdiction, the matter was dismissed by the state court. He said recent conversations with the state court judge and the county state's attorney have indicated a willingness to move forward on these kinds of cases. He said another question that recently arose concerns a dual restraining order concerning a non-Indian and Indian couple. He wondered whether the tribal court has jurisdiction to enter a restraining order against a non-Indian and, if there is, whether there is also jurisdiction to prosecute a violation of the order.
With respect to the restraining order question, Judge Marcellais said there may be a distinction depending on the difference in her court between a restraining order and a protection order. She said if the order results from a civil action, then there would likely be tribal jurisdiction over a non-Indian. However, there would be no jurisdiction if the order arose out of a criminal action.
Judge Foughty recalled the Committee's earlier discussions concerning registration of sex offenders and offenders against children and notice to the tribes, from both the state and federal system, concerning the location of registered offenders. He drew attention to Attachment C (October 16, 2003) - his letter to Federal Judges Erickson and Hovland on the issue and suggested the Committee attempt to rearrange a presentation from federal probation representatives on this subject.
Northern Plains Tribal Judicial Training Institute - Update
Karrie Azure-Elliot explained that the Institute recently received portions of a$2.2 million grant that will allow the hiring of four additional staff. The purpose of the grant, she said, is to provide technical assistance to tribal courts throughout the United States. She said the Institute is currently working with ninety-one tribes and have initiatives underway with Three Affiliated Tribes at Fort Berthold, and Standing Rock. She said the Institute will provide on-site technical assistance, as well as regional and national training, in conjunction with the National Judicial College and other entities. She said the Institute continues to provide a wide array of services to tribal courts, ranging from training to technical evaluations of tribal court technology systems.
Child Support Enforcement - Issues
Chair Foughty next invited discussion concerning child support enforcement, information sharing, and possible cooperative agreements.
Judge Conklin noted that Fort Berthold remains interested in a cooperative agreement addressing child support enforcement. She said there is some effort underway to draft formal child support guidelines.
Judge Miner said the Standing Rock Tribal Council had adopted a resolution approving use of the Sisseton-Wahpeton guidelines for child support cases in Standing Rock tribal court. She noted there are continuing issues concerning whether or when child support payments have been made to the state or to the tribal court. She said, for example, there was a recent case in which child support payments had been made to the state, the tribe, and the parent.
Judge Foughty suggested that one aspect of a cooperative agreement could be to clarify where a payment would be made when there is, for example, state enforcement of a tribal court support order or if multiple orders exist.
Carrie Francis noted a recent situation in which state child support enforcement is assisting in enforcing a tribal court support order, but at some point requests a modification of the order through a state court. She wondered how the state court could modify the tribal court order. Justice Kapsner observed that, with respect to state court orders, there is a presumption that the original court has continuing jurisdiction to modify the order, unless all the requirements are satisfied for modification in the new state.
Mike Schwindt noted that the issue about which jurisdiction can modify an order has been a question for years. He said state courts quite often modify support orders from other states. He said there are currently about 1,200 tribal court orders in the state child support enforcement system and they are handled the same as a state court order. He explained that he had recently distributed payment records to tribes so an effort can be undertaken to ensure the data is correct. He emphasized the need for complete, accurate data and the need to exchange child support information between the state and the tribes. He said those needs could be addressed through either a cooperative agreement or a memorandum of understanding between the state and the tribes. He said there is a current question concerning whether the federal government will provide funding for some entity to assist the tribes when considering an application to fund a tribal child support enforcement process.
Judge Foughty suggested the Tribal Judicial Training Institute might be able to provide assistance with the application process.
Judge Miner observed that it would be a great advantage if tribes could have access, perhaps through a cooperative agreement, to information about whether the IRS tax intercept process has been used to collect support ordered by the tribal court. Mike Schwindt said access to the state's child support payment ledger would provide that information.
Future Topics of Discussion
Chair Foughty next requested discussion of topics and information for future meetings. Committee members agreed information should be solicited on the following topics: juvenile detention and placement and available programs, electronic access to protection order information and entry of tribal protection orders in the state registry, sex offender registration in the federal probation system, and continuing discussion of child support enforcement.
Future Meeting Schedule
Following discussion, Committee members agreed the next meeting should be in March or April 2004, followed by meetings at Spirit Lake and Fort Yates.
There being no further discussion, the meeting was adjourned at 2:00 p.m.
Jim Ganje, Staff