Committee on Tribal and State Court Affairs March 25-26, 2004 Meeting Minutes

Committee on Tribal and State Court Affairs

MINUTES

Committee on Tribal and State Court Affairs

Prairie Knights LodgeOctober 21-22, 2004

Members Present
Judge Donovan Foughty, Chair,
Northeast Judicial District
Judge El Marie Conklin, Fort Berthold District
Court
Judge Deborah DuBray, Spirit Lake Tribal Court
Jim Fitzsimmons
Judge B.J. Jones, Sisseton-Wahpeton Tribal Court
Judge Madonna Marcellais, Turtle Mountain
Tribal Court
Justice Carol Ronning Kapsner, North Dakota
Supreme Court
Marilyn Kary, Court Administrator, Standing Rock Sioux Tribal Court
David McGeary, Director of Juvenile Court,
South Central Judicial District
Judge Lorrie Miner, Standing Rock Sioux
Tribal Court

Members Absent
Judge William McLees, Northwest Judicial District
Michelle Rivard, Tribal Attorney, Spirit Lake
Nation

Others Present
Juvenile Judge William Cavanaugh, Spirit Lake Tribal Court
Curtis W. Hanks, Lemmon, SD
Dwight Koch, Solen, SD
Cheryl Kulas, Executive Director, North Dakota Indian Affairs Commission
Dale Lawrence, Fort Yates, ND
Judith Roberts, Bismarck, ND
Mike Schwindt, State Child Support Enforcement Office

Following the evening dinner and discussion on October 21, Chair Foughty called the October 22 meeting to order at 10:00 a.m. He introduced Marilyn Moe, who would be providing staff support for the meeting. He then drew attention to Attachment B (October 15, 2004) - minutes of the March 25-26, 2004, meeting. It was noted that Judge Marcellais could not attend the March meeting, but is reflected as both absent and present in the minutes. The minutes were approved with the noted correction.

Child Support Enforcement - Roundtable Discussion

Chair Foughty reviewed recent discussions at legislative committee hearings concerning child support enforcement, tribal recognition and enforcement of child support orders, and participation by state child support enforcement personnel in tribal court proceedings. He said one issue concerns the perceived lack of enforcement of child support particularly when tribal courts are involved. He said the state child support enforcement agency is under considerable pressure, because of the access to federal funds, to ensure child support obligations are enforced and collection actions appropriately pursued. He said an interim legislative committee adopted a resolution regarding the establishment of a process involving the state, tribes, and counties to discuss methods of increasing child support collection. He said the role of casinos was also discussed, primarily with respect to recognition of state income withholding orders. A central issue, he said, was the extent to which tribal courts will recognize and enforce a state child support order and whether the tribal court will exercise jurisdiction to modify the order. A related question, he said, is how money received from a tribally recognized state order will be handled, i.e., will the money be processed through the tribal court or will it be submitted to the state child support enforcement unit.

In response to a question from Judge Foughty concerning child support attorneys appearing in tribal court, Judge Miner said the admission process is fairly simple. It was noted that appearances and involvement by state child support personnel in tribal courts differs from court to court.

Judge Foughty observed that a basic issue is access to tribal codes and rules of procedure. He inquired whether relevant portions of tribal codes and rules can be made readily available to state child support enforcement offices. Judge Conklin said applicable parts of the code could be provided. Judge Miner said most of the tribal codes should be available through the Supreme Court Library. Additionally, she noted that Dakota Plains Legal Services has a copy of the updated Standing Rock Code. Judge Foughty encouraged tribal judges to ensure that a copy of the most recent tribal code and rules of procedure is submitted to the Supreme Court Library. Most important in the near term, he said, are provisions concerning child support enforcement, applicable rules of civil procedure, and procedures governing tribal recognition of state orders and judgments. He requested that copies of these provisions be forwarded to Committee staff.

In response to a question from Judge Jones, Mike Schwindt said regional child support offices have filed actions in tribal court in the past but fewer have been undertaken in recent years. He said the state should become more committed to developing a positive working relationship with tribal courts so child support issues are effectively addressed. Judge Jones observed that it is particularly important to establish a process by which a mother to whom child support is owed can have that obligation effectively enforced when the father is located on the reservation.

Jim Fitzsimmons said that in over two decades of practicing in the Fort Berthold District Court he routinely submitted child support-related matters to the court and orders were issued by the tribal court against tribal members owing child support. He said the central issue is to develop a more cooperative relationship between the state and tribes.

Judge Foughty asked whether there are specific rules governing appearances by state child support enforcement attorneys in tribal court. He requested that any such rules, procedures, or related forms be forwarded to Committee staff. The objective, he said, should be to ensure that state child support attorneys are clearly aware of the requirements so that enforcement actions in tribal court can be more readily undertaken.

Judge Jones asked whether other tribal courts regularly receive state child support orders and requests for recognition and enforcement. Judge Miner said occasionally an order will be received by the casino, which will forward the order to the court. She said the child support enforcement office will then be informed of the applicable procedures to be followed. Quite often, she said, nothing more happens after that. Judge Jones observed that when a child support office is informed of the requirement to submit an order to the tribal court rather than to the employer, such as a casino, many times no further enforcement effort is undertaken.

In response to a question from Judge Jones, Judge Marcellais said the Turtle Mountain Tribal Court has recognized some state orders, but state child support enforcement rarely appears in tribal court.

Mike Schwindt emphasized that regional child support enforcement personnel are county employees and as such he is limited in the directions he can give them. He said child support attorneys do not often appear in tribal court because they are unfamiliar with procedures for admission to the tribal court. Additionally, he said, there have been instances in which state orders have been submitted to a tribal court and there was no response or action by the court. In sum, he said there is a great need for more information, more cooperation, and more coordination between the state and the tribes to ensure child support is appropriately collected and provided to the person to whom it is owed. With respect to income withholding orders submitted to casinos, he said sometimes the orders are honored by the casino and sometimes they are not. There is, he said, no general rule that is followed. He stressed the importance of sharing information between the state and tribes when child support is being paid to the tribal court or is being paid directly to the obligee in accordance with a tribal order. Otherwise, he said, there is the risk of high arrearages being reflected in the state system when, in fact, the child support is being paid.

Judge Jones wondered whether there are funds available to the state which could be used to contract with an attorney on or near each reservation to handle child support matters. Mike Schwindt said current law requires that child support enforcement be handled through the regional child support enforcement units.

In response to a question from Judge Foughty, Judge Miner said if a state child support order is recognized and enforced through tribal court, any payments received would be disbursed as required under the order.

With respect to establishing better methods of communication, Jim Fitzsimmons suggested representatives from each regional child support enforcement unit should meet with each tribal judge and tribal court personnel in the unit's region to identify issues and possible solutions.

Judge Foughty asked of the tribal judges whether child support payments pursuant to a tribal court order are paid to the court or paid to the obligee. There was agreement that the general approach is for payments to be submitted to the court.

Chair Foughty then invited comments regarding child support enforcement discussions from Cheryl Kulas, Executive Director, North Dakota Indian Affairs Commission. Ms. Kulas explained that the legislative committee was interested in the scope of child support enforcement on the reservations. She said there was some discussion of undertaking an effort involving the state, tribes, and counties to review enforcement issues. She said the discussion also became linked to issues concerning casinos and legislative oversight of gaming compacts. She said the Commission has been involved in facilitating discussions between the state and tribes on a number of issues and a cooperative effort regarding child support issues would be a beneficial development.

Judge Jones noted that South Dakota has argued that tribes should surrender jurisdiction in order to enter into gaming compacts with the state.

Rule 7.2, Rules of Court - Recognition of Tribal Court Orders and Judgments

Chair Foughty drew attention to Attachment C ( October 15, 2004) - a letter and attachments referring proposed amendments to Rule 7.2 to the Committee for review. The amendments propose to add to paragraph (c) a reference to "orders", which would then track references to judgments and "orders" in paragraph (b). The amendments would also add in paragraph (b) a reference concerning compliance with the procedures set out in paragraph (c).

Justice Kapsner said the intent of the amendments is not to change any of the substantive focus of the rule, but rather to clarify the application of the rule's procedures to orders as well as judgments.
Judge Jones observed that there may be some kinds of orders for which the incorporated 10-day notice requirement in paragraph (c) would create a problem. For example, he said a tribal court may issue an order to detain a person who is subject to an emergency mental health proceeding. The amendment to paragraph (c), he said, would require the order to be filed and notice given within 10 days. He said there should be some method for maintaining the status quo in certain situations during the time that the order is filed and the procedural requirements under paragraph (c) are complied with. Judge Foughty said he has never regarded Rule 7.2 as a rule of limitation.

Dave McGeary noted circumstances in which a tribal order to pick up a child is received in Bismarck, but law enforcement will not act on the order unless there is an order from the juvenile court or a judge. In those circumstances, he said he has issued a temporary order to have the child picked up for a shelter care hearing.

Judge Foughty said he did not view Rule 7.2 as affecting how mental health proceedings or proceedings involving children are handled.

Judge Jones emphasized that local law enforcement likely would not enforce a tribal order to detain someone unless the order was registered under Rule 7.2.

Marilyn Kary asked who would have the responsibility to file an order issued by the tribal court in the circumstances described by Judge Jones.

Judge Jones suggested language could be added to paragraph (c) to provide that nothing would prevent a state court judge from entering an emergency order if appropriate pending final registration.
Additionally, he said most people who have a tribal court order will not have legal representation and will have difficulty following the registration process. He noted that there are no forms to be used for filing tribal orders and judgments.

Judge Foughty observed that Rule 7.2's structure and procedures imply the rule is for use with money judgments. He said there are many other kinds of tribal orders or judgments to which it may apply, but the procedure may not work as well. Judge Jones said the statutory references in paragraph (c), which incorporate provisions regarding recognition of foreign judgments, do not seem at all applicable to situations involving juveniles or custody matters. He suggested a separate registration process may be useful for these kinds of situations.

Judge Foughty asked whether leaving out the proposed addition of "orders" in paragraph (c) would mean that registration and enforcement would not be available for orders. Jim Fitzsimmons asked whether a liberal interpretation of Rule 7.2 means that judgments must be registered, but orders do not. He said if that is correct, then further adding orders to the rule would mean that orders must also be registered to be enforced. Judge Jones noted that the Order included in Attachment C indicates that "[b]oth orders and judgments need to be filed" under Rule 7.2, including compliance with the statutes referenced in paragraph (c). Judge Miner noted that Section 28-20.1-03 refers to "judgment debtor" and "judgment creditor", both of which imply application to money judgments and both are different from a defendant who is the subject of another kind of order.

Judge Jones underscored that it makes little sense to require someone with a tribal custody order to register the order and provide an affidavit identifying the "judgment debtor" and then wait 10 days before any enforcement action can be taken, both of which are required by incorporation of the statutory references in paragraph (c).

Jim Fitzsimmons noted that Rule 7.2 refers several times to "orders and judgments", except that the second paragraph in paragraph (b) and paragraph (c) refer only to judgments.
Chair Foughty said the Supreme Court's referral of the general issue to the Committee indicates the Court is seeking comments regarding any concerns the Committee may have. He said the consensus seems to be that the rule should somehow address those matters that must be handled more expeditiously than the current rule seems to allow. Possible solutions, he said, include additions to the rule or perhaps developing a new rule for those emergency kinds of situations. Committee members agreed with that general assessment.
Jim Fitzsimmons said his recollection is that paragraph (c) was intended only to apply to tribal money judgments. If that is so, he said, then the procedures in paragraph (c) would not have applied to the tribal order addressed in Attachment C and concerning which the Order denying the writ of supervision was entered. Judge Jones agreed and suggested that a draft rule could be developed which would address the kinds of orders and emergency situations (mental health, custody, juvenile matters) discussed by the Committee.
Judge Conklin said she is unaware of many situations, other than the matters discussed in Attachment C, in which tribal orders have been filed for recognition. In response to a question from Judge Foughty, she said there likely is no compelling reason for the Supreme Court to adopt changes to the rule on an emergency basis. Judge Jones said the rule appears to have been working well for several years and cautioned against changes based on one particular case.
Committee Business
Chair Foughty noted the current state judge vacancy on the Committee and said Judge Tom Schneider from the South Central judicial district has agreed to serve as a member. He said there is also need for a state court support representative, which has traditionally been a clerk of court, and a tribal court support representative. He encouraged members to submit membership suggestions to him.
With respect to future agenda items, Chair Foughty said there may be some remaining issues concerning sex offender registration to be discussed, as well as continued discussion of child support enforcement.
There being no further business, the meeting was adjourned at 1:00 p.m.