Committee on Tribal and State Court Affairs
Ramada Hotel, Bismarck, ND
October 31, 2014
Chair Foughty called the meeting to order at 10:00 a.m. and welcomed those in attendance. See Appendix for a list of attendees.
Tribal Protection Orders - Accessing State Information System
Chair Foughty opened the discussion with an overview of issues and past discussions regarding a method for including tribal protection orders in state databases and, ultimately, in federal databases. He requested further discussion of how to integrate tribal protection orders into the state data bases to ensure full faith and credit recognition and enforcement.
Judy Volk, ND Bureau of Criminal Investigation, explained that the state protection order data base receives information from the judicial branch case management system - Odyssey. She said that information is then available to state law enforcement. She explained that information in the state protection order data base is not currently transmitted to the NCIC federal protection order system but a project is in place to facilitate populating information from the state system into the federal system.
In response to a question from Judge Medd, Judy Volk said local law enforcement could enter protection order information into the system if presented with a tribal protection order.
Staff noted that state law - N.D.C.C. ch. 14-07.4 - provides a method for the recognition, enforcement, and registration of protection orders from other “states”. He said, for purposes of the law’s application, “state” includes any Indian tribe or band that has jurisdiction to issue protection orders. He said a person protected by the order may register the order by presenting a certified copy to any clerk of district court. He said the registered order may then be entered into any existing state or federal registries of protection orders. He said it appears that very few tribal protection orders have been registered as the statute provides. The registration process, he said, depends on the choice of the person protected by the order to pursue registration. There is no process by which tribal court protection order information can be transmitted directly from the tribal court to the state system.
Judge Foughty said there have been occasions in which someone had filed a tribal protection order under Rule 7.2 of the Rules of Court for purposes of recognition and enforcement. He said the state court has then issued an order, but the process does not work well as the Rule 7.2 process does not directly reflect application to protection orders.
In response to a question from Judge Foughty, Dallas Carlson, BCI Director, said it appears the more direct available process appears to be presentation of the tribal protection order to the state court for registration. He said that information then could, at least in theory, be entered in the Odyssey system and transmitted on to BCI.
Judge Erickson said the ideal solution would be a process, an accessible portal, that enables entry of tribal protection order information directly into the state system. However, he said, that entails something of a political question since one sovereign would be transmitting information that is then under the control of another sovereign. But, he said, any other method is prone to error since entry of information would be driven by individual circumstance and different processes.
Tim Purdon, U.S. Attorney, noted that whenever a NICS (National Instant Background Check System) check is run, for example, for purchase of a firearm, the system queries the protection order data base.
Judy Volk explained that it is generally the responsibility of the sheriff’s office to enter protection order information into NCIC (National Criminal Information Center). However, she said, there is some inconsistency how the information is being entered. She said if tribal courts were able to enter information directly into NCIC, then the information would be available to law enforcement.
Additionally, she noted that there is a significant number of data elements involved in entering protection orders into the state and federal systems, including detailed information and formatting. She said there are also specific requirements regarding removing the protection order information from the system when the order expires. All of these considerations, she said, underscore the need to clearly set out the protocols and process for entry of tribal protection order information.
Judge Erickson said there appear to be at least three basic questions: 1) whether jurisdictional issues will complicate a reporting process, 2) whether there is sufficient technology resources to enable transmission of the information, and 3) whether tribes have the resources to manage the data.
Tim Purdon said DOJ information indicates that tribes do have the ability to enter protection order information directly into NCIC if the tribe has access capability. He said tribes without access sometimes have protection orders entered into the system by local law enforcement offices. Additionally, he said, there are rules and requirements that govern the process, including 24/7 availability at the tribal level of someone who can respond whether the order is still in effect.
There was general agreement that methods for entry and reporting of protection order information should be the focus of ongoing discussion.
Child Support Enforcement
Jim Fleming, Director, State Child Support Enforcement, then reviewed recent developments in state and tribal enforcement efforts. He noted that there are no residency requirements for receiving child support enforcement services and about 20% of cases his office handles tribal parents and children. He said the level of services that the state office can provide to tribal children fall into roughly three areas.
The first, he said, are situations in which essentially no services can be provided because of the lack of interaction with tribal court or the absence of a funded program.
The second, he said, are situations in which there is no funded child enforcement program in place, but the state office sends attorneys to tribal court to participate in litigation like any other party. That situation, he said, essentially applies to Turtle Mountain and Spirit Lake.
The third situation, he said, is one in which the tribe has a federally reimbursed child support program, which is the case for Three Affiliated Tribes and Standing Rock. He said these kinds of programs are growing and enhance the prospect of obtaining child support services for tribal children. He said recent federal law changes will enforcement measures available to tribes, such as access to the national directory of new hires for tribes that have their own program. There is also, he said, an effort underway to provide tribal access to parent locator information. Until those efforts are successful, he said, tribes can gain access to the information by way of a memorandum of understanding with the state office. He said such a memorandum was recently signed with Standing Rock. He noted that Standing Rock has agreed to take the lead in a consortium of tribes that have child support programs and would like to partner with neighboring states but are unable to do so because of technological obstacles. He said North Dakota will provide support services for the consortium.
Hope Project - Implementation in Indian Country
Chair Foughty explained that the HOPE Project was first implemented in Hawaii and is a concentrated process by which courts can supervise offenders on probation. The program, he said, involves intensive supervision, regular visits with the probationer, and swift responses to violations.
The objective is to ensure that the probationer does not return to prison. He said a program like the HOPE Project may be relevant in Indian country as the principal reason a tribal probationer is returned to prison is failure to comply with probation conditions. He said programs like the HOPE Project require a high level of communication among various entities involved: courts, prosecutors, defense attorneys, probation officers, and the probationer.
Leann Bertsch, Director, ND Depart of Corrections and Rehabilitation, observed that immediate response is key to implementation of a Hope Project program as a means of addressing problematic behavior. Additionally, there must be certainty with respect to handling infractions. She said the Bureau of Justice Assistance has funded several projects in various jurisdictions to determine whether programs like the Hope Project can be replicated. She agreed that the program requires close working relationships among all entities involved. She cautioned that a Hope Project process is sanction-driven and therefore there has been some tendency towards more severe sanctions. She said the program is essentially a process based on negative reinforcement. She said the program, or a program with similar elements, may be helpful in North Dakota because currently there is no swift or certain response when a probationer absconds from probation.
Judge Erickson agreed a HOPE Project process has proven helpful because of the ability to implement swift, certain, and moderate sanctions, coupled with intense follow-up for probation violations. But, he said, the process entails a high number of hearings before the court, which judges may find problematic. He said if there is no consistent follow-up with the probationer, then the process risks adverse results rather than positive outcomes.
In response to a question from Brad Peterson, Leann Bertsch said a HOPE Project differs from programs like drug court in that not everyone in the program is involved in drug treatment. She said a HOPE Project will establish priorities to govern which participants are eligible for treatment, which may result in more emphasis on sanctions rather than rehabilitation.
Judge Foughty observed that a properly implemented HOPE Project in Indian country may be a useful method for dealing with violators who are on the reservations. He said a simple violation may cause the probationer to leave the area for fear of being returned to prison, while a HOPE project could provide an alternative for addressing the violation and ensuring compliance with conditions.
Tim Purdon said the concept is worthwhile and should be presented to the various tribes for consideration. He said tribal leadership would play a key role in implementing something like a HOPE Project on the reservations.
Jessica Johnson, Indian Affairs Commission, explained that the Indian Affairs Commission is pursuing an agreement to implement a mentoring program for tribal members coming out of the penitentiary or other correctional facility. She said the goal is to prevent minimize criminal thinking and absconding from probation by cultural values. She said the Commission will recruit mentors and the Department of Corrections and Rehabilitation will provide training. She said the effort will be a one-year pilot program and then will be evaluated to determine whether it can be continued or expanded.
Judge Foughty drew attention to a felony warrant list that identifies those who have absconded from probation, including tribal members, and who are wanted on outstanding warrants. He suggested that tribal jurisdictions should review the warrant list to determine whether the individual should be picked up.
Access to State Juvenile Services by Tribal Jurisdictions
Chair Foughty next opened a discussion regarding the availability of state juvenile services for tribal youth adjudicated in tribal court. He welcomed the following to the discussion: Lisa Bjergaard, ND Division of Juvenile Services (DJS); Jeremiah LoneWolf, Raymond Cavanaugh, and Jasmine Mahkewa, Bureau of Indian Affairs Office of Justice Services (Aberdeen).
Judge Foughty described instances in which a tribal juvenile adjudicated in tribal court is unable to obtain needed services and instead is sent to a jail in South Dakota. He said he had contacted the Division of Juvenile Services to determine whether services are available in-state.
Lisa Bjergaard said state services are available for tribal juveniles who have been adjudicated as delinquent in tribal court. She said contract between the state and the tribe is needed if the juvenile is to be placed at the Youth Correctional Center (YCC). She said there have been such contracts in the past but they have expired over the past few years. She said her office has not been contacted by the tribes about the possibility of new contracts.
Jasmine Mahkewa explained that specific wording is needed in the contracts and memorandums of understanding to facilitate services. She said the state Attorney General’s office reviews the contract provisions.
Jeremiah LoneWolf said the BIA has no juvenile facilities in North Dakota, except for limited facilities at Three Affiliated Tribes.
Tim Purdon noted that the issue is not solely with the BIA as each individual tribe must sign off on a contract.
Lisa Bjergaard observed that the Division of Juveniles Services has contracts with various counties for detention services. He said those contracts would be relatively easy to replicate for detention services related to tribal juveniles and there could also be contracts related to treatment services.
Jeremiah LoneWolf said BIA Social Services would have the greater interest in contracts related to treatment services. He said his office is more interested in short-term detention services.
In response to a question from Judge Foughty regarding why tribal juveniles are not being placed at YCC, Lisa Bjergaard said the principal reason is that there simply are no contracts in place for services.
Jasmine Mahkewa said the main hurdled may be between the BIA and the Attorney General’s office in working out appropriate contracting language.
Lisa Bjergaard emphasized that DJS would accommodate the needs of tribal juveniles to every extent possible, but a contract must be in place. She cautioned that there is limited capacity at the YCC facility so there may be insufficient room for a juvenile even if a contract is in place.
Tim Purdon said he would be willing to facilitate a discussion between the BIA and the Attorney General’s office to see if the issues can be resolved in a timely fashion. Chair Foughty extended his thanks to the BIA representatives who traveled from Aberdeen to participate in the discussion.
Tim Purdon noted the agenda item related to access to tribal court rules and tribal ordinances.
He said recent amendments to the federal Violence Against Women Act require public availability of tribal rules and ordinances if the tribe applies for the expanded jurisdiction provided under the amendments. He said a recent application from Sisseton-Wahpeton for expanded jurisdiction noted the availability of rules and ordinances. Additionally, he said the Department of Justice has submitted a request to the U.S. Sentencing Commission for a review of disparity in sentencing with respect to Indian defendants. He said DOJ is asking the Commission to take a deeper look at data related to sentencing to determine whether there are problems that should be addressed.
Chair Foughty thanked all in attendance for their participation. The next meeting will be at the call of the Chair.
There being no further discussion, the meeting was adjourned at 1:00 p.m.
Jim Ganje, Staff