Judge Donovan Foughty, Chair,
Northeast Judicial District
Judge William Kavanagh, Spirit Lake Nation Tribal Court
Judge El Marie Conklin, Fort Berthold District
Justice Carol Ronning Kapsner, North DakotaSupreme Court
Judge Beverly May, Turtle Mountain Tribal Court (for Judge Madonna Marcellais)
Michelle Rivard Parks, Tribal Attorney, Spirit Lake Nation
Judge William Zuger, Standing Rock Sioux
Rebecca Absey, Grand Forks County, Clerk of District Court
Judge B.J Jones, Sisseton-Wahpeton Tribal Court
David McGeary, Director of Juvenile Court, South Central Judicial District
Judge William McLees, Northwest Judicial District
Janice Morley, Ass't U.S. Attorney
Judge Thomas Schneider, South Central Judicial District
Associate Judge Curtis Carroll, Standing Rock Sioux Tribal Court
Theresa Snyder, Tribal Liaison, Department of Human Services
Tara Muhlhauser, Deputy Director, Children & Family Services, Department of Human Services
Jonathan Byers, Attorney General's Office
Lonnie Grabowski, Chief Agent, Bureau of Criminal Investigation
Mike Schwindt, State Child Support
Chair Foughty called the meeting to order at 10:00 a.m.
"Active efforts" under ICWA - Recent State Legislative Activity
Staff drew attention to Attachment B (September 28, 2007) - active efforts legislation enacted by the 2007 North Dakota Legislative Assembly and an active efforts legislative proposal that was not enacted. He explained that the Supreme Court's Juvenile Policy Board, as part of a larger project to review the state's juvenile court act, had discussed the possibility of providing greater guidance to state judges and judicial referees with regard to what constitutes active efforts in the involuntary placement of Indian children in foster care or the termination of parental rights. He said "active efforts" to maintain the Indian family is required under ICWA, but the federal law does not define what constitutes active efforts, nor does state law. The result, he said, is that courts are left to decide on a piecemeal basis, based on caselaw, what may constitute active efforts in a given case. The active efforts proposal that was not enacted, he said, resulted from several discussions by the Juvenile Policy Board and was considered to provide helpful guidance to state judicial officers on the matter. The proposal, he said, was included in a lengthier legislative proposal containing numerous changes to the juvenile court act but during the session drew opposition from representatives of county social services agencies. The opposition, he said, was based on a concern that the proposed language would impose considerable burdens and costs on county agencies and personnel. As a result, he said, the proposed language was modified and a general statement was substituted which directs that an agency seeking foster care placement or termination of parental rights with respect to an Indian child must be required by the court to show active efforts as required by federal law.
Michelle Parks asked whether any general study has been conducted of county social service practices to determine the level of compliance with the active efforts requirement. She said her experience has been that counties differ considerably in their levels of cooperation with tribes. For example, she said, Grand Forks County has generally exhibited a willingness and desire to work with tribes on ICWA issues, while Cass County has generally been uncooperative. She noted instances in which she had contacted Cass County personnel to inquire about the status of a case and was told that she risked a complaint of practicing law without a license if she continued activity with respect to the case.
Judge May agreed and said her experience has also been that Cass County personnel are generally uncooperative and in some instances have refused to agree to involvement by the tribe's ICWA representative.
Judge Carroll noted that in his experience as a tribal attorney there have been extraordinary differences from county to county and state to state in how ICWA cases are handled.
Michelle Parks said there are significant problems in how county personnel are responding to tribes. She said communications could be very simple and cooperative rather than confrontational and refusal to discuss matters unless the tribal representative is licensed to practice law in the state. She said there are many instances in which there simply is no respect accorded to tribal courts or social service entities.
Judge Foughty suggested the possibility of responding by letter to the county, with a copy to the judge or judicial referee, explaining that the person is not acting as an attorney but as a representative of the tribe seeking information concerning the case.
Judge Foughty asked how qualified expert witnesses for ICWA cases have been identified by the tribes. Theresa Snyder said some tribes have designated those to serve as expert witnesses by resolution. Judge May explained that Turtle Mountain had borrowed language from a Minnesota law concerning qualifications for expert witnesses, which underscores the importance of the person having a general familiarity with tribal customs and culture. In response to a question from Judge Foughty about who decides, as a matter of fact, whether a person qualifies as an expert witness, Judge May said Minnesota courts have concluded that the tribe should determine who qualifies, based on cultural background as well as academic credentials.
Theresa Snyder noted that some tribes have few resources and funding to establish a program for training and compensating individuals to serve as expert witnesses in ICWA cases. Michelle Parks said the Tribal Judicial Training Institute may be a possible resource to facilitate meetings with the tribes concerning development at the tribal level of an expert witness program.
Judge May noted that the Turtle Mountain ICWA office, which has only one ICWA worker, receives requests concerning membership and eligibility for enrollment from all fifty states and seven foreign countries. She said the ICWA worker handles an average of 119 requests per week. Because of the lack of personnel and resources, she said, there are often difficulties in responding to requests in a timely manner. She said the delay in responding is often cited by county authorities as a basis for contesting tribal involvement even though federal law permits a tribe to intervene at any time.
Federal Adam Walsh Act - Impact on Tribes
Staff drew attention to Attachment C (September 28, 2007) - a Tribal Court Clearinghouse summary of the federal Adam Walsh Act provisions affecting tribes. He noted the requirement that a tribe must elect whether to establish a sex offender registry by a certain date and if the tribe does, not, authority is delegated to the states to manage a registry for the tribe and the state is granted access to tribal territory to implement the federal law.
Chair Foughty then welcomed Jonathan Byers, Attorney General's Office, and Lonnie Grabowski, Chief Agent, Bureau of Criminal Investigation, for comments concerning Adam Walsh Act requirements and avenues of cooperation between the state and tribes.
Mr. Byers distributed a summary memorandum concerning the Act's requirements prepared by the National Congress of American Indians and a series of questions and answers about the Act prepared by the Department of Justice. He also distributed a listing of the number of registered sex offenders in the state. Copies are attached. He said Mr. Grabowski would be primarily responsible for overseeing implementation of the Act's requirements pertaining to the state.
By way of background, Mr. Byers explained that North Dakota has been working for over a decade to establish and perfect the current state sex offender registry. He emphasized the amount of work necessary to ensure a registry functions properly and cautioned that the federal law essentially expects tribes to do in two years what it has taken the state over 12 years to accomplish.
Judge Zuger observed that the Department of Justice apparently has only one employee dedicated to coordinating efforts by the tribes to comply with the federal requirements.
Michelle Parks said DOJ has provided some direction through regulations and software has been developed to implement the Act's requirements, which is supposed to be provided to tribes at no cost. Additionally, she said grant funding may be available to tribes for planning and implementation. She said it will be important for tribes and the state to consider cooperative efforts if possible in areas such as fingerprinting and maintenance of DNA samples.
Judge Zuger cautioned that there are significant issues concerning how the tribe can maintain a DNA database and with what resources. He said most tribes will have staffing problems and funding problems. With respect to the availability of grants to tribes, he said it appears that Congress had not yet appropriated funds for the grants.
Mr. Byers said the state may be able to share the risk-level assessment software the state uses for its registry.
Mr Byers said he and Mr. Grabowski would be available to offer any assistance that may be helpful while tribes work towards implementing the federal law requirements.
Child Support Enforcement
Chair Foughty next welcomed Mike Schwindt, Director of State Child Support Enforcement, for continuing comments regarding child support enforcement.
Mr. Schwindt said the state child support agency remains committed to working with tribes to ensure that appropriate child support enforcement actions are taken. He noted that Three Affiliated Tribes now has a federally funded child support enforcement program. He said his agency has had contact with the Turtle Mountain Tribal Court in a continuing effort to identify ways of working together on child support issues. He said representatives from his office have met with the Spirit Lake Tribal Council and Ramsey County officials to develop better methods and ways of exchanging information. He said state child support enforcement now has attorneys licensed to practice in all tribal courts in the state. He explained that recent changes in state law have transferred all child support enforcement responsibilities and staff to the state; there is no longer a state office with regional offices staffed by county employees. He said the ultimate goal is to have a court, tribal or state, available to parties to resolve child support issues. He emphasized the importance of accurate child support information and noted that incorrect enforcement actions are often taken because the state agency has wrong information. He emphasized the need to continue developing better methods of sharing information between tribal courts and the state agency so that tribal members who have child support obligations are not subject to improper enforcement actions because complete information is not available. He said that as a general matter child support enforcement activities between the state and tribes are moving in a positive direction.
Michelle Parks noted that the Spirit Lake Nation recently received Byrne grant funds that will enable the hiring of three data entry clerks in tribal court. She said the clerks will work for one year to enter all court information, including child support information, into an accessible data base. She said the system will be able to provide reports concerning amounts owed, amounts paid, and arrearage amounts.
Judge May asked whether tribes could become connected to FACSES, the state's fully automated child support enforcement system. Mike Schwindt said the hope is at some point in the future to provide tribal access to FACSES. He noted that a PC will be available as part of the Three Affiliated Tribes's system and will allow access to the state system. He said there are still some programming issues to be resolved related primarily information that is shielded from access by federal law.
Human Services Update
Theresa Snyder, Tribal Liaison, Department of Human Services next provided an overview of department services and programs affecting tribes and tribal members. She noted that the department is currently researching changes to the definition of "relative" for purposes of the department's relative care program. She said that current data indicates that Indian children account for approximately 33% of foster care placements, including placements through the Division of Juvenile Services and tribal placements. She noted that if children in tribal custody are excluded, the percentage decreases to about 22%, which is still significant in light of the fact that Indian children represent about 9% of the state's population under the age of 18. With respect to the Aging Services Division, she explained that there are currently 154 qualified service providers for the elderly population on reservations in the state. With respect to mental health services, she said suicide prevention grants will soon be available to the four tribes and to three rural communities. She noted that all four tribes are licensed treatment providers for substance abuse and grants are being distributed to tribes.
Jim Fitzsimmons said Legal Services of North Dakota now has an expanded Senior Legal Hotline, which, through a federal grant, will provide direct contact with personnel who have experience or background in Indian law issues affecting seniors on reservations in the state.
Tara Muhlhauser explained that the Indian Child Welfare Act Manual is nearing completion. She said the project was delayed for some time but will soon be completed and available on the department's website.
Chair Foughty explained that the Supreme Court recently adopted term limits, a maximum of nine years' continuance service, for memberships on all the Court's advisory committees. The limits, he said, would affect the continued participation on the Committee by some current members.
Staff explained that Jim Fitzimmons and Jan Morley, having served more that nine years on the Committee, would not be eligible for reappointment. He noted there are also vacancies for two tribal court support representatives. Committee members agreed that Michelle Parks, who now is associate director of the Tribal Judicial Training Institute and who has served as a tribal court support representative (prosecutor and tribal attorney), could continue to serve as a designee of the Institute's director.
With respect to the loss of Jan Morley as a Committee member, Jim Fitzsimmons emphasized the importance to the Committee of experience and background in tribal-state issues. He expressed disappointment that adoption by the Supreme Court of term limits would result in the loss of continuity and experience that are uniquely important to the group.
Following discussion of possible appointees to the Committee, it was moved by Judge Zuger, seconded by Judge Conklin, and carried that the Committee recommend appointment of the following individuals: As public members: Bradley Peterson, Legal Services of North Dakota, and Karrie Azure, Project Director, United Tribes Technical College; and as tribal court support representatives: Patti Shelkey, Criminal Court Clerk, Fort Berthold District Court, and Nicole ManyHorses, Court Administrator, Standing Rock Sioux Tribal Court.
Chair Foughty expressed his thanks and appreciation to Jim Fitzsimmons and Jan Morley for their many years of service to the Committee.
There being no further discussion, the meeting was adjourned at 2:30 p.m.
Jim Ganje, Staff