Minority Justice Implementation Committee
February 19, 2015
(Unofficial Until Approved)
Bismarck, North Dakota
Grand Forks, North Dakota (ITV Location)
Hon. Donovan Foughty
Professor James Grijalva
Hon. Steven McCullough
Dr. Leander McDonald
Dean Kathryn Rand
Lee Edward Brockington
Call to Order: 10:05 a.m.
Ulysses Jones moved to approve the minutes from the 14 August Committee meeting. Robin Huseby seconded and the motion carried unanimously.
Chair Foughty indicated that there would be changes to the agenda order because of member availability. The first item will be Criminal Recommendation 12 on court orders and warrants.
Criminal Recommendation 12: Honoring Court Orders and Warrants
Chair Foughty dialed into a phone conference with members Spirit Lake Tribe and introduced attendees at the Bismarck and Grand Forks locations. Scott Davis introduced Erin Shanley, the judicial administrator for the Indian Affairs office, and Maggie Lanister and, an intern working the same office. Yvonne DuBois, Nancy Green-Robertson, and Alberta Red Fox were present at the Spirit Lake location.
Scott Davis introduced the topic of court orders and warrants. He congratulated Spirit Lake on passing a resolution on extradition. Chair Foughty confirmed that the statute allows tribal law enforcement officers to pick up individuals they know have outstanding state warrants and bring them before judges. The old statute required law enforcement to seek permission from a judge.
Spirit Lake indicated that the next step is working with Michelle Robard to draft appropriate documents to create an extradition process. They said access to existing templates from the Indian Affairs Office would help speed up the process. The most significant obstacle to this point has been entering information into the database. There are 900 Tribal warrants awaiting entry so law enforcement can begin pursuit. Spirit Lake participants indicated that law enforcement and the prosecutors would establish priorities for enforcing specific warrants. They indicated that safety issues, such as drugs and domestic violence, are the priority.
Chair Foughty explained that when someone is arrested in the state jurisdiction based on a Tribal warrant, that person appears in state court. The only issue the court determines is identification, and the accused has a right to a hearing and an attorney. If the accused can show by clear and convincing evidence that he is not the party identified in the warrant, he may be released. There is no credit for jail time during this process. Robin Huseby related an example where identification depended on matching a tattoo.
Chair Foughty said that any warrant list should be presented to county sheriffs and the Devils Lake Chief of Police. Many listed individuals probably remain in the area and may also have outstanding state warrants. Police departments would have to call dispatch to ensure that warrants are still outstanding. Chair Foughty agreed to provide Spirit Lake with a list of all local warrants from Ramsay and Benson County on a periodic basis. He said there are probably a significant number of non-Indians hiding out in Indian Country.
Spirit Lake participants said receiving lists from the other tribes would help law enforcement deal with individuals who move between tribal jurisdictions to hide out. Chair Foughty said that Turtle Mountain Chairman McCloud has expressed same view. He said the U.S. Marshalls have stated they will pick up individuals from state jurisdictions if tribes request aid. However, this offer only applies for certain crimes, such as domestic violence.
Spirit Lake members said crime has increased dramatically on reservations. Chair Foughty said state courts recently issued warrants in Indian casinos for the first time, based on concurrent jurisdiction for crimes committed in Indian Country by non-Indians. Federal authorities chose not to take these cases. Offenders were from around the country. Some were very dangerous: one failed to attend a preliminary hearing in North Dakota because he was arrested for murder in Detroit.
Spirit Lake proposed a follow-up meeting on March 19 at 10:00 am between district court officials in Devils Lake and Spirit Lake officials. Chair Foughty agreed to coordinate attendance. Chair Foughty spoke about agreements to provide services for Indian youth at the Youth Correctional Center (YCC) in Mandan at upon request. He suggested organizing a tour of the YCC for Tribal Council members and Elders to provide information on available services. He suggested including the Department of Juvenile Services in the March 19 meeting to discuss an agreement, and the local Department of Human Services to discuss creating space for youth treatment at Spirit Lake.
Chair Foughty noted that there are some agreements between Devils Lake and Spirit Lake that allow consultation with Elders in low-level delinquency cases. A group of tribal elders in Spirit Lake works with delinquent youth through traditional activities such as talking circles that address delinquency issues.
Sally Holewa asked if there is anything the Committee should do to follow-up on this issue. Chair Foughty said that this effort should eventually extend to Three Affiliated Tribes, where cross-deputization would be another topic of discussion. The ongoing conversation should extend to the rest of the state from there.
Access to Justice
Staff explained issues surrounding expansion of the Minority Justice Committee to include access to justice issues. Objections from outside of the Committee appeared similar to those covered in prior meetings. The first concern is that the focus on minority justice might be abandoned or minimized. During a prior meeting, members observed that a name change could lead to public belief that the focus on minority justice was abandoned.
A second concern is that access to justice commissions appear to deal only with civil access issues, while the criminal system is a major focus area for the Minority Justice Committee. The proposed North Dakota commission would add an access to justice focus in addition to its current work. This combination would create a broader scope than commissions in other states, but this may be advantageous given the size of the state and overlap of minority and access to justice issues.
Staff suggested formal action on whether to include the access to justice issues. Action should include a decision on a name for the commission, and could also include a mission statement to emphasize the fact that work will continue to encompass race and bias while adding a civil access focus.
Chair Foughty said the national tendency of the race and bias groups has been to morph into access to justice committees. There is significant overlap, and many times access solutions depend on identifying the minority issues with access.
Professor Grijalva emphasized concerns that rural justice issues may overtake focus on fairness and minority representation. He said there needs to be a real institutional focus to ensure that minority justice issues remain the main priority. Access to justice is a pressing need, but the small proportion of minorities in the state means that most facing access issues will still be non-minorities, especially in western North Dakota. He said momentum for implementation could be lost with the proposed change.
Chair Foughty asked if it would make a difference if a mission statement maintained a specific focus on minority issues. Professor Grijalva said that, from his experience, mission statements do not carry much weight. The questions are whether or not there is institutional impetus and whether the agenda always includes a minority justice focus.
Sally Holewa explained that the idea of expanding the current committee to include ‘access to justice’ developed from discussions between herself and the Chief Justice. One reason for merging the ideas of bias and access was that North Dakota is further along than other states in this direction, so a separate access to justice commission is probably unnecessary. Access to justice commissions usually deal with issues including: dedicated funding for legal aid, rules to allow limited-scope services, pro-bono services through the bar, self-help centers at the courts, and similar projects. Most of these areas have either been addressed or are currently being covered by courts and the committee.
Chair Foughty added that the North Dakota Self-Help Center works directly on access to justice problems, but this position does not have a supporting organization for advice and counsel. Sally Holewa said the issues of access to justice and minority justice are intertwined at many levels, and that it is difficult to speak about race and bias issues without also considering access to justice.
Chair Foughty acknowledged that term limits will come into effect for some committee members, including some who served on the Race and Bias Commission. He said there was a chance that changes could affect institutional consistency. However, he suggested that so many subjects are intertwined that the Committee could expand focus and still purposefully address race issues. In addition, there is a relatively small group of people in the state available to work on these topics, which would help maintain consistency. In contrast, some other states have included hundreds of members. Chair Foughty said he would support re-working the current group into an access to justice commission.
Anthony Weiler moved that the new group should adopt the name “Minority Justice and Access to Justice Commission.” He agreed that there has been some focus on access to justice in the Minority Justice Committee, but this name would maintain the focus on minority justice. Robin Huseby seconded.
Jim Fitzsimmons requested staff read a draft of a mission statement. Members proposed several changes. This modified draft read: “To ensure justice, fairness, and access for all North Dakota citizens, with a focus on minorities and other disadvantaged populations in North Dakota Courts.” Robin Huseby proposed replacing “North Dakota citizens” with “citizens.” Members agreed to this change.
Members discussed potential issues with the name, but reached a consensus in favor of changing it. Chair Foughty requested a vote on the motion to adopt the name “Minority Justice and Access to Justice Commission,” which carried unanimously.
The Committee discussed potential membership. Prior discussions proposed creating a seat in which a student member selected by the law school would serve one to two years. Professor Grijalva said the law school discussed creating a one-year position that would grant students law school credit. However, the limited number of meetings each semester would not provide sufficient hours for credit. An arrangement allowing the student member to provide assistance to staff could allow UND to certify that the student is getting real legal experience and award credit. Professor Grijalva said that he could report more detailed information, including specific suggestions, concerns, or expectations for a student representative, during the next meeting.
Staff said that he contacted two potential mentioned during the last meeting, and asked generally if they had any interest in subjects the Commission would cover. Both expressed interest. Chair Foughty confirmed that permission is required from the court to bring in new members. Sally Holewa suggested that the Committee could consider including a legislator.
NALSA Education Program
Staff summarized prior discussions on creating an education program in which law students and educators would visit tribal colleges to introduce students to the legal field. He said the committee budget has funding to support this kind of program. Staff suggested that some of the basics of such a program should be tentatively determined, including potential times, locations, and providers.
Scott Davis commented on internships. He said there needs to be an interactive component to get thinking processes going about how officials make decisions. He asked about funding for internships. Sally Holewa said that there is no current funding for summer positions, though there has been discussion on this topic. Scott Davis said the focus should be to get more Native Americans into internships in North Dakota. Chair Foughty said that it would be most useful if positions were available in district courts.
Sally Holewa said there are internship and immersion programs for juvenile participants in some offices. These usually support a single intern. Corey Pedersen indicated these are unpaid internships. Chair Foughty said interns in his district are also unpaid, but benefit from learning within the system. Scott Davis suggested establishing a district judge shadowing program. Jim Fitzsimmons said this could be a pilot project.
Members discussed the proposed education program for tribal colleges in cooperation with the UND Law School, specifically the Native American Law Students Association (NALSA). Professor Grijalva explained that the effort was conceived to help implement a Race and Bias Commission recommendation for expanded outreach and public education. Chair Foughty said that Spirit Lake would be the closest location to run a program, and President Cynthia Lindquist would likely support such a project. He said the National Consortium has been emphasizing efforts to build trust by engaging in public education.
Professor Grijalva said there are three main roadblocks to an education program. The first, funding, appears to have been addressed. The second issue is that similar programs in the past have offered a significant number of credits for participation. Students are involved in NALSA as an extra-curricular activity. If a program for tribal colleges is extra-curricular, participation will end up competing against the students’ full course load. The third roadblock is time. Now that federal money has dried up, there is a struggle to find funding to attract minority students. An education program can be undertaken, but there must be broader participation than UND Law students and faculty. It would be beneficial for UND to have a greater presence in the tribal colleges, the best and most likely source for recruits. The issue should not be dropped, but there are questions of format and determining content useful for college students.
Members suggested that a summer program in conjunction with the Academic Achievers Conference might have a positive effect. Scott Davis said that he often runs the Youth Leadership Academy in the summer, depending on funding. This usually includes 30 to 40 Native and non-Native youth from across the state. The law school could present to this group; the program already covers college and career preparedness. Chair Foughty suggested contacting the Bar to find local attorneys willing to get involved.
Erin Shanley said she used to teach criminal justice at Sitting Bull College, and many students there expressed interested in law school. Professor Grijalva said if Scott Davis could provide the meeting dates for the Leadership Academy, he would be willing to participate. He said if any law students are available in the summer, they could present a mock law school case.
Scott Davis added that the presidents of the North Dakota Tribal Colleges Association convene in Bismarck from time to time. The meetings would be good venues for discussions on establishing a pre-law degree at Turtle Mountain or Sitting Bull College.
Mental Health Pilot
Staff said meeting materials included basic information on mental health courts, a topic discussed during prior meetings. Discussions indicated that Fargo has experience with mental health assessments, and considered establishing a mental health court in the past.
Birch Burdick directed members to a report outlining the Fargo program. He said the program began in response to the number of individuals entering the system who appeared to have mental health needs. Rather than implementing a full mental health court, a single employee was designated to provide assessments. The assessment occurs immediately after booking, at which point an objective tool is administered and scored. Participants with mental health needs are invited to become involved with appropriate diversion programs. Successfully completing diversion can lead to dismissal or other positive results. Program goals include securing proper medication and ensuring that participants continue to take it.
Funding was secured through the Bureau of Justice Assistance and applied toward case management, a fundamental aspect of the project. When funding for dedicated case management ran out, it interfered with the ‘hands on’ aspects of the program, including home visits to follow up on medication and needs. There are still about seven people involved in this project, but there were as many as 21 in the past. The program is currently searching for alternate funding.
Chair Foughty asked about housing in the Fargo area for those with mental health issues. Burch Burdick said there are shelters in the community, but the stay there is limited. He said that he could provide 2014 statistical data that the program has recorded. Members agreed that housing is a significant component in mental health programs.
Fargo program providers are not aware of any other comparable mental health diversion program in North Dakota. Burleigh County has indicated insufficient time to establish and run a program, primarily because of work surrounding the new jail. Leann Bertsch indicated that Grand Forks might be interested in establishing a mental health pilot.
Robin Huseby described Bill 2161 on specialty courts, which is currently working through the legislative process. The bill would appoint a commission to oversee specialty courts, with broad membership and a full-time staff member. Leann Bertsch said the commission would be able to ensure that specialty courts throughout the state follow uniform guidelines. It would also ensure that data collection, outcomes, etc. operate under consistent parameters. She indicated that this bill passed. Anthony Weiler said this commission would study whether potential problem solving courts would be useful in North Dakota and assess their effectiveness.
Corey Pedersen said amendments had changed the leadership from the original bill, removing probation and parole as well as juvenile courts in favor of greater legislative-focus. Members indicated that judges, prosecutors, indigent defense, and DOCR continued to be represented.
Birch Burdick said specialty courts may direct people with specific issues out of the court system, but they are also extremely resource intensive. A large number of employees may end up helping only a few individuals. Treatment failures are to be expected because problems are most often deeply rooted. Programs need to create immediate consequences for failures to be effective. Chair Foughty agreed, stating that national-level studies advocate ‘swift and certain’ consequences. Often, when a participant fails some aspect of the program, he or she simply walks away, only to later end up in the state penitentiary.
Staff said the report draft, referred to several times as an ‘interim report,’ actually fulfills the AO 21 requirements for the annual update report. He asked whether submitting the draft as the annual report would require committee to approval.
Anthony Weiler said the report should be submitted to the Chief Justice on behalf of the Committee with a letter signed by the Chair. Members agreed to submit the report as discussed.
Pretrial Tool Project
Staff explained meeting materials on jail data on pretrial and sentenced populations in county jails. Requests were for data over one year, 2014, or at least a period of several months. Results were mixed. Several counties were able to provide data for one year, others for a single month. Some counties indicated that their one-month data did not vary significantly over the course of a year. Burleigh County provided both one-month and yearlong data, which showed a rate of 80% pretrial for 2014, and 78% for December, 2014. This might offer some support to claims of comparable rates.
Few counties were able to provide race data within the pretrial population. Most counties appear to use computer programs that do not allow significant analysis. The main characteristic appears to be that a significant proportion of jail populations are pretrial. The proportion is often 80% or more, depending on the county.
Chair Foughty said the Committee had contacted Judge Hagerty to invite Burleigh County to participate in a pretrial pilot similar to the sentencing pilot running in Cass County. Judge Hagerty indicated that the decision would require consultation with other judges and administration. However, there has been no further response on this project, and Burleigh County does not appear to be able to accommodate the project at this time.
Chair Foughty said that a pretrial pilot might be possible in Ramsay County. Jim Fitzsimmons suggested waiting until the conclusion of the legislative session and then contacting Burleigh County again.
Leann Bertsch said that proposed Senate Bill 2116 would allow DOCR to perform pretrial services. DOCR originally asked for pilots in Burleigh, Cass, and Williams counties, but Morton County was later added to this bill. If a jurisdiction does not want to participate, it should be able to opt out. Pretrial services has reviewed this bill and funded three officers to provide services in the three pilot counties. If everything goes through, the timeline is six months to one year for implementation. The process will probably require bringing in experts to norm the pretrial tool. If this pilot shows value, then it can be expanded to other areas of the state.
Staff provided an update on PASSPORT and explained a letter from Dallas Carlson. The Committee previously discussed several potential methods of including tribal protection orders in the state system and forwarding them to federal databases along with state orders. The Carlson letter indicated that the best method for this is registration of tribal orders at the county level as ‘foreign protection orders.’
Scott Davis said Forth Berthold is creating a domestic protection house for children modeled on a similar facility in Standing Rock. The Abused Women’s Resource Center helped to facilitate this effort. Jim Fitzsimmons said that at least two reservations use off-reservation shelters, and there is some uncertainty as to where protection orders will end up when they are issued. Scott Davis suggested doing outreach to these facilities to spread information on protection order registration. Chair Foughty said the goal is for the tribal court assigning the domestic protection order to send it directly to the state courts for registration.
Erin Shanley asked whether tribes enter orders directly into NCIC. Chair Foughty confirmed that direct entry is possible if the tribe has access. Some tribes have access to this system, but do not enter orders. Scott Davis suggested this topic should be covered in the State-Tribal Relations Committee. Chair Foughty said he would be speaking directly with Spirit Lake to outline this method for including tribal orders. He said moving forward on this project will require raising awareness among tribal clerks, and he and Scott Davis should speak with Turtle Mountain courts.
Staff said he and Linda Isakson researched similar efforts in other states and found registration of foreign orders to be the most commonly used method. He noted that prior discussions suggested direct entry of tribal data into NCIC presents difficulties; data seems to be much easier to access than enter.
Staff provided a short update on the limited-scope amendments forwarded to the Joint Procedure Committee. The Committee briefly considered the amendments but was interested in hearing more details from a member of the Minority Justice Committee. The sole member of both committees, Judge McCullough, was unable to attend the Joint Procedure meeting. Chair Foughty said that he would be willing to attend a Joint Procedure Committee meeting to discuss limited-scope.
Having no further business, the meeting adjourned at 1:00 p.m.