Tribal Court in good hands

pouley

 

Judge Theresa Pouley  leaves Tulalip to teach

By Niki Cleary

“Judge Pouley has been one of the most influential, prolific and iconic tribal judges of our time,” said Tulalip Court Director Wendy Church. “She holds three things very dear to her heart: her tribal court clients, the tribal court and tribal sovereignty. In the six years I’ve had the pleasure of working with her, I’ve seen her commitment and passion for those three things over and over.

When Tulalip’s longtime Chief Judge Theresa Pouley hears the accolades, the down to earth grandmother of two just chuckles and gives the credit to those around her.

“Tulalip was changing the face of Indian Country and asked if I would help do that,” she reminisced. “What an amazing journey for all of us. It’s like a whole new historic era. Never have Indian people been given the opportunity to determine their future more than in the last five years, and Tulalip is really responsible for that. Tulalip shared their economic advantage and programs they had, they were willing to put their name and their tribe on the line for the benefit of all Indian Country. They did it for everybody.”

Judge Pouley pointed out the Tribal Law and Order Act, the tribal provisions of the Violence Against Women Act and Tulalips ongoing commitment to restorative justice.

“I remember in 2005 we were starting to build a wellness court here and Maureen Hoban had a snippet out of a treaty that said what a peaceful and generous people [the ancestors of contemporary] Tulalips were, I’ve witnessed that first hand.”

Teaching and family, two of Judge Pouley’s great passions in life, will be her next adventure.

“I’m going to be teaching law, intro to law, contracts and civil procedures. I’ve applied for this job at Edmonds twice before. My appointment [as Chief Judge] is up in 2016, so it came at just about the right time. I’ll be working 170 days a year and I get every summer off and the whole month of December. I have my second grandbaby on the way, and more time with grandbabies is always good,” she grinned.

Even though she won’t be here to watch over it, Judge Pouley isn’t worried about the future of Tulalip Tribal Court. She sang the praises of her replacement, incoming Chief Judge Ron Whitener.

“Judge Whitener is up to the task,” she affirmed. “What an amazing thing to be able to take a professor from the University of Washington (UW) and recruit him to want to be a tribal court judge. He was part of the Attorney General’s advisory committee on youth violence, he has academic ties and a wealth of knowledge from working with the Attorney General. He is a Squaxin Island [citizen]. We’re really borrowing the best and brightest from the UW to take over as Chief Judge, it’s a testament to the forward progress of tribal courts that we can attract that kind of talent.”

Judge Pouley joked, wiggling her petite feet, “He has really big feet, so he’s not going to have any trouble filling these shoes.”

Although she’s leaving Tulalip Tribal Court, Judge Pouley said she’s not giving up all her ties to Tulalip. She is, after all, a resident of the Tulalip Reservation.

“Did you see Jon Stewart’s goodbye?” she asked, referencing the farewell speech of the late night comedian and host of The Daily Show. “It’s really hard to let go, but you should just view it as a long conversation, that way you never have to say goodbye. I feel that way about Tulalip. Our conversation is going to take a little pause, but it’s not the end of the conversation. I have clients here that know and respect me. There are lots of people that I’ve met and I’m grateful that they’re in my path and I can count them as my friends. I’ve seen Tulalip grow and become such a safe place.

“I just want to give a heartfelt thank you to all the people who have supported Tulalip Tribal Court over the years,” she continued. “Ten years is a long time. Tulalip has really taken care of me and treated me with open arms. I have so many friends here and I’ve developed knowledge and respect for so many people. I walk with all their prayers and good wishes every day. I feel so privileged to have been here.”

Probation provides a bridge between court and clients

 

pouley

“We love what we do and we’re trying to help people make better choices,”
said Tulalip Chief Judge Theresa Pouley
Photo/ Niki Cleary

 

By  Brandi N. Montreuil and Niki Cleary, Tulalip News 

The Tulalip Tribes Probation Department is an integral component to Tulalip Tribal Court. A kind of cross between a counselor, cheerleader, champion and hall monitor, the probation staff are a bridge between the court and the client.

“I like to think that orders of the court are geared towards helping people make better choices and probation is the arm that helps them understand what they’re required to do,” explained Tulalip Chief Judge Theresa Pouley. “When you are found guilty of a crime the court is going to give you a list of requirements. We can trust that you’re going to do it, or someone can help monitor whether you comply and help you problem solve ways to be in compliance.

“The Probation Officer receives a copy of the judgment and sentence, which lists all of the things the client has to do. Probation also informs the court when they aren’t doing what they’re supposed to do.”

Tulalip Associate Judge Ron Whitener followed up, “They also advocate for their clients with us [the judges] because they know the true circumstances of their lives. Even though someone might be out of compliance, probation might say we want to come up with a plan to stay in compliance.”

Probation is a complex concept and the reasons that a client receives probation are as varied as the reasons that bring clients into the court. Probation can be a way to give clients a chance to make good without jail time or other sanctions. It can be a way to transition clients back to the community more successfully. Or it can be a way to keep in touch with those at high risk of re-offending, so they don’t simply do their time and slip quietly back into the community to carry on with their former criminal activities.

Judge Pouley gave an example of a non-violent offense that might receive probation, “For a class E offense, possession of a controlled substance there is a maximum penalty of 365 days of jail and a $5,000 fine. It doesn’t do anyone any good to put a first time offender in jail for 365 days and charge them $5,000. If they’re a first time offender, you really want to figure out how to get them treatment. For someone with substance abuse issues, it’s not always easy to make good on your promises [to get treatment], probation helps them do that.”

Judge Whitener described how the relationship between a client and the probation officer can provide positive peer pressure that encourages clients to succeed.

“People, especially with substance abuse, need that structure. The knowledge that they have a person who is going to check on them, knowing that tomorrow I have to go talk to [my probation officer] and he’s going to know, from my chemical dependency counselor, whether I’m going to my sessions. He’ll know if I paid my fine. That makes it easier for the short term.”

Judge Whitener continued, describing probation as a tool to do what is best for the community and the client.

“It’s a system of harm reduction and rehabilitation,” he said. “You want to rehabilitate [the client] and you want to reduce harm to the community. You could put them in jail, but it would be a huge cost. You really want to find out what is going to work for the individual and that’s what probation does. They get to know their clients. They do an assessment of individuals and come forward with a tailored plan for what is going to have the best likelihood of success.”

He described probation as a form of cognitive behavioral therapy, “You rewire the brain towards the positive way of living, rather than the negative. You’re reinforcing a positive lifestyle, you are also being consistent and you have sanctions [when a client doesn’t follow through].

“There’s no magic pill that can solve the problem. It takes lots of hands and some time,” he continued. “It takes a lot of work, sometimes it takes multiple criminal charges and a few times on probation. And sometimes it never happens. We always want there to be a solution. We have to accept that for a lot of people, their lives get better, for some people it doesn’t.”

For violent offenders or those at high risk of reoffending, Judge Pouley explained that sometimes the ratio of sentencing and probation is a balance between holding the offender accountable for their actions, and having an avenue to regulate their actions once they’ve served their time and/or paid their restitution.

“For the vast majority of our clients, we view our role as encouraging people to make good choices and discouraging bad choices. However, there are a small percentage of the clients that are a danger of the community,” she said.

“Most people in that category do up-front jail time as a sanction,” Judge Pouley explained. “But putting someone in jail for 365 days and then on day 366 having no supervision whatsoever isn’t always the best. You want to the sanction to show that you’re serious about not hurting people, selling drugs or being a sex offender, but at the same time you want some supervision afterwards to monitor them for the safety of the community. You want to make sure they’re taking the classes they’re supposed to be taking, but also staying away from the areas they’re supposed to stay away from.”

“We love what we do and we’re trying to help people make better choices,” Judge Pouley recapped. “When it works, it’s such a fabulous thing. And when it doesn’t, it’s pretty heartbreaking.”

 

Tulalip Tribes probation officer Andy James plans to incorporate culture and tradition as a way to empower clients to become productive members of their community. Photo/Brandi N. Montreuil

Tulalip Tribes probation officer Andy James plans to incorporate culture and tradition as a way to empower clients to become productive members of their community.
Photo/Brandi N. Montreuil

 

Both judges expect that changes in the probation officer may make probation an even more effective tool for clients. For the first time ever, a Tulalip citizen is serving as the probation officer. Tulalip tribal member Andy James is replacing longstanding Probation Officer Jim Furchert. Andy brings with him not only his skills as a United States Marine, but also fourteen years of experience as a Tulalip police officer and he’s already a staple in the courtroom where he’s served as the Transport Officer and Court Bailiff. Known for his fatherly advice and strong cultural teachings, Andy is a natural fit.

“Of the great things about Andy is that he used to do this as Transport Officer,” Judge Pouley described. “He’d give words of wisdom like any elder in your family might give. We’re pretty excited to have Andy and his experience change the dynamic in Probation. He has a really vested interest in the community. He knows the clients and families and brings that depth of knowledge and law enforcement experience to the probation officer job.”

Judge Whitener agreed, pointing out that Andy’s standing in the community will help make the Probation Office more relevant.

“The one thing Probation hasn’t had is the voice of an elder that’s familiar with the community,” he said. “For our clients, someone like that telling them what they need to do resonates more than someone who doesn’t have the same status in the community. It’s a great thing to have his perspective.”

Andy already plans to incorporate culture and tradition as a way to empower clients. He hopes the integration of traditional culture will help break down the institutionalized feeling that many clients have about probation.

“Before, I only had parts of the puzzle,” explained Andy, describing his former role as court bailiff. “Now I have to go through all the client files and make recommendations. I have the whole puzzle to work with now.”

Andy has always used his time with clients to encourage them to comply with court orders and become involved with their culture as a way to heal.

“In some ways it’s identical,” said Andy, comparing previous work with Tulalip Police to his new position as probation officer. “I am dealing with someone’s life.”

As probation officer, Andy is responsible for monitoring over 180 clients, with the assistance of two additional staff members. He has to provide sentencing recommendations, not only in Tulalip Tribal Court, but also state, federal and other tribal courts. The Probation Department coordinates with a variety of tribal entities including the Tulalip Central Drug and Alcohol Testing Department, Behavioral Health Services, and various State and Federal probation and correction departments.

Andy will spend the next few months orientating himself with each client file and new probation software.

“This is a hard job,” said Andy. “I am not perfect and I stress that to clients. I will treat them with respect and let them know we all make a difference, and we all have a purpose.”

 

 

 

Alaska Native tribes no longer have to register restraining orders with state

By Matt Buxton, Newsminer.com

FAIRBANKS — Alaska Native tribes will no longer have to jump through extra hoops to have their domestic violence restraining orders enforced by the state.

A legal opinion issued by Alaska Attorney General Craig Richards ruled Alaska law was out of line with the federal Violence Against Women Act, clearing the way for a direct link between tribal courts and state troopers.

“This opinion provides clear direction to officers on the ground as well as the victims they seek to protect,” Richards said in a news release. “There should now be no doubt that these protection orders must be enforced.”

The legal opinion found an Alaska law requiring tribal court-issued restraining orders be registered with courts before they could be enforced was superseded by federal Violence Against Women Act.

The Violence Against Women Act specifically says protective orders issued by Alaska Native tribes, other tribes and other governments do not need to be registered to be enforced.

“The State should not enforce or apply the provisions of state law that conflict with VAWA,” the opinion said, “and should investigate and prosecute violations of tribal and foreign protection orders that meet the full faith and credit requirements set forth in VAWA.”

Tanana Chiefs Conference President Victor Joseph applauded the decision, saying it will help curb domestic violence and empower tribes.

“This will no doubt add to the protection of our Native women and children in our villages,” he said. “It is one less step victims will have to take in order to get the protection from law enforcement that they deserve. It is also a step in the right direction needed to lower the high rates of domestic violence as recognized by the Indian Law & Order Commission’s report.”

The protective orders must still comply with the guidelines set out in the Violence Against Women Act. Those include the tribe having the appropriate jurisdiction over the issue and provide due process.

The protection orders must be for “the protection of victims of domestic violence, sexual assault, dating violence, or stalking,” according to the federal law.

The order still encourages the tribes to register protection orders with the state court system.

“While not required for enforcement, registration of tribal and foreign protection orders helps officers to protect and serve the public,” the order explains.

The opinion was requested by Department of Public Safety Commissioner Gary Folger.

The jurisdiction of tribal courts is likely to continue to be an important issue in Alaska in coming years.

North Pole Republican Sen. John Coghill has introduced a bill that would give tribal courts jurisdiction over misdemeanor crimes. He said it not only lessens the cost for the state to enforce misdemeanor laws in rural Alaska, but importantly is a better tool to address problems in rural Alaska than the traditional court system.

“The tribal courts are using a restorative justice model that really suits many small villages,” he said. “To be fair, there are some that do it well and some that are not doing it as well as others, but the reality is something has got to happen in the rural communities to allow people to hold each other accountable.”

Granting tribes greater jurisdiction over criminal and civil issues has been a prickly issue for many legislators and administrations, but Coghill said there’s a compromise that can and should be struck.

“We have such a diversity in Alaska,” he said, “and if you can’t find a way to work in those diverse conditions, I think we’ve failed.”

Next week the Tanana Chiefs Conference will be hosting its annual Tribal Court Development Conference in Fairbanks.

Goldwater Institute challenges Indian Child Welfare Act

Suzette Brewer, Indian Country Today Media Network

PHOENIX, Ariz. – On July 7, the Phoenix, Arizona-based Goldwater Institute announced the filing of A.D. v. Washburn in the United States District Court for the District of Arizona, a class-action lawsuit challenging the constitutionality of the Indian Child Welfare Act (ICWA) based on its contention that the federal legislation “discriminates against Native children.”

Secretary of the Interior Sally Jewell, Assistant Secretary for the Bureau of Indian Affairs Kevin Washburn, and Gregory McKay, director of the Arizona Department of Child Safety (DCS) were named as defendants in the case.

The suit is being filed on behalf of “all off-reservation Arizona-resident children with Indian ancestry in child custody proceedings and the foster, pre-adoptive or prospective adoptive parents of these children,” according to the organization’s press release. “This case will not impact current or future cases that involve children or parents living on a reservation where a tribal court has jurisdiction; it will change the law so that state courts and agencies cannot discriminate against Native American children.”

Washburn marks the third major legal challenge to the 38-year-old federal law since the Bureau of Indian Affairs published new ICWA guidelines in the Federal Registry in February of this year, followed by the agency’s declared intention to seek a federal rule, which would make the statute more enforceable on state courts and social service agencies.

“While we have not yet reviewed the filing, we understand that a lawsuit challenging ICWA was filed yesterday. In matters in litigation, we will speak primarily through our briefs in court, but I want to assure the public that we will defend the Indian Child Welfare Act,” said BIA assistant secretary Washburn in a written statement. “Nearly 40 years ago, Congress determined that Indian children were being treated unfairly in the context of foster care and adoption. Congress determined that ‘an alarmingly high percentage of [Indian] children’ were subjected to ‘unwarranted’ removal from their homes and that a federal law was needed to protect Indian children. This law has been an important feature of the legal landscape for many years now and we firmly believe that the protection of the best interests of Indian children continues to be important today.”

According to the suit, the plaintiffs are seeking declaratory and injunctive relief against “certain provisions of ICWA and the accompanying BIA guidelines” on behalf of “A.D.,” a 10-month-old baby girl who is an enrolled member of the Gila River Indian Community. Another child plaintiff is a 4-year-old boy who is a member or eligible for membership in the Navajo Nation. The birth parents of both children have had their parental rights terminated by the state and both children reside off-reservation in Arizona. The Navajo Nation, as outlined in the brief, has repeatedly attempted to find ICWA-compliant homes for the boy – all of which were rejected by the state as “inappropriate” placements. If not for the Indian Child Welfare Act, according to the brief, the boy would already be in a permanent home under “race-neutral” Arizona law.

“When an abused child is removed from his home and placed in foster care or made available for adoption, judges are required to make a decision about where he will live based on his best interest. Except for Native American children. Courts are bound by federal law to disregard a Native American child’s best interest and place him in a home with other Native Americans, even if it is not in his best interest,” said Darcy Olsen, president of the Goldwater Institute in the organization’s press release. “We want federal and state laws to be changed to give abused, neglected or abandoned Native American children the same protections that are given to all other American children – the right to be placed in a safe home based on their best interests, not based on their race.”

But the original author of the Indian Child Welfare Act, retired South Dakota Sen. James Abourezk, took the Goldwater Institute to task for its attempt to overturn one of his signature legislative achievements during his time in the United States Senate. Ironically, Abourezk’s late friend and colleague Sen. Barry Goldwater actually voted in favor of ICWA when it was approved by the Senate in 1977.

“I knew Barry Goldwater – he was my friend and often came to me for advice on most tribal matters,” said Abourezk from his home in Sioux Falls, South Dakota. “I wish he were alive to see this travesty because he would never approve of it and you can quote me on that and make sure you emphasize the word ‘never.'”

Tribal leaders, their legal teams and ICWA advocates across the country seem universally opposed to the litigation. They view with skepticism adoption practices in the United States, and the economic factors and profits at play.

“The Native American Rights Fund is closely following the lawsuits filed in Virginia, Minnesota, and now Arizona,” said NARF staff attorney Matthew Newman. “What is abundantly clear is that these lawsuits are part of a coordinated, well-financed attack on the rights of tribal nations to protect their children. It is open season on the Indian Child Welfare Act.”

“At this point it is pretty clear that anti-ICWA advocates, who primarily represent adoption interests, have started a coordinated attack on ICWA,” said Kate Fort, staff attorney and adjunct professor for the Indigenous Law and Policy Center at Michigan State University College of Law. “They are looking for cases of opportunity in courts across the country by inserting themselves and trying to make the same constitutional arguments against ICWA. But this lawsuit will absolutely hurt vulnerable children and families in our state child welfare systems. Their claims that ICWA’s protections are substandard is simply not true. ICWA’s standards are considered the gold standard of child welfare practice. To say these lawsuits to dismantle ICWA are in the best interest of the child is really contrary to what is considered best practices by child welfare professionals.”

Stephen Pevar, senior counsel for the American Civil Liberties Union, says the whole point of enacting ICWA was to end decades of unnecessary removals of Indian children from their homes and communities.

“Congress held years of hearings [before enacting ICWA] and many Indians who were victims of state foster care cases testified,” Pevar said. “Based on that testimony and other research, Congress found that it is in the best interests of Indian children to be raised in an Indian home except in extraordinary circumstances. Therefore, the Goldwater Institute is wrong in saying that Congress overlooked the ‘best interest’ standard. Instead, Congress accepted that standard and concluded that there’s a presumption that it’s in the best interest of Indian children to be raised in an Indian home. In addition, the Supreme Court has already rejected the notion that ICWA creates racial discrimination when it imposes minimum federal standards on state courts in their handling of Indian child custody cases.”

But ICWA has come under assault in courts all over the country in the last several months, say legal experts, in states unwilling to deviate from the “business-as-usual” approach, in which an average adoption can bring anywhere from $40,000 to 100,000 in fees and costs for private adoptions, depending on various factors, including living expenses for the birth mother.

In May, for example, Washington, D.C.-based attorneys Lori McGill and her husband, Matthew McGill, filed suit in federal court in Virginia seeking to challenge the new BIA guidelines which they believe impose “federalism” on state courts regarding the adoption of Indian children. Mrs. McGill, who played a key role in Adoptive Couple v. Baby Girl in 2013, told the National Law Journal in May that she gets emails on a weekly basis “from lawyers and adoptive parents telling me how ICWA is ripping their families apart.”

That same month, the Oklahoma Court of Civil Appeals openly dismissed the new BIA guidelines in a case involving a 4-year-old Cherokee girl who had been placed in a non-Indian foster home during emergency proceedings in 2013. At the time, an ICWA-compliant home was not available, though a year later the tribe filed a motion to transfer the girl to a Cherokee family that the tribe had located. In ordering the girl to stay with her foster parents over the tribe’s objection, the court’s contempt for the new guidelines was palpable.

“The BIA guidelines’ intentional disregard of these factors results in a one-size-fits-all approach to the placement of children with any tribal affiliation,” the judges wrote. “That result may bear little resemblance to what is really in the child’s best interests, despite the self-serving pronouncements of the BIA guidelines.”

In June, adoption attorneys representing tribal parents in Minnesota filed another suit, Doe v. Jesson, in which they argued the Minnesota Indian Family Protection Act (MIFPA) violates constitutional due process in requiring notice of adoptions to the tribe. However, the Minnesota District Court denied a preliminary injunction based on state law requiring notice to tribes. The Court ruled that the MIFPA posed no threat of irreparable harm to the two tribal plaintiffs in complying with notice requirements. The tribe in the case, the Mille Lacs Band of Ojibwe, have declined to intervene.

But the litigation, said observers, strikes at the heart of not only of the Indian Child Welfare Act, but also the keystone of tribal sovereignty as a whole – the right of Indian tribes to determine their own membership and raise their children in their home communities.

“Using tragic stories to try to destroy the constitutionality of ICWA is not appropriate. As we know from Morton v. Mancari, Native status is a political identity not racial or ethnic, so laws that give any type of Indian preference or preferential treatment are not in violation of the equal protection clause,” said Victoria Sweet, a program attorney for the Reno, Nevada-based National Council of Juvenile and Family Court Judges. “It’s ironic that [the Goldwater Institute] would argue that Native children get less protections when they actually get more and it is disingenuous to suggest otherwise when the reality is clearly the opposite. We are not yet at a point where the initial purpose of ICWA has disappeared. We still need this law. It still protects Native children.”

“It’s 38 years later and I still get mail from Indian people who tell me how important this legislation is,” Abourezk said. “The tribes need to mount a unified attack against this lawsuit because it’s good law and what they’re doing is wrong. It would be an enormous tragedy to see them overturn it.”

For Native Women, High Price of Rape Goes Untold

The Cherokee Nation has begun an advertising campaign to encourage native women to seek help.Credit: Photo by Suzette Brewer

The Cherokee Nation has begun an advertising campaign to encourage native women to seek help.
Credit: Photo by Suzette Brewer

There’s no way to quantify the damage, but tribal leaders estimate it’s in the billions. “It happens every day in every native community; it’s that common,” says Jodi Gillette, former special assistant on Native American Affairs to the White House.

By Suzette Brewer, WeNews Correspondent

STILWELL, Okla. (WOMENSENEWS)– For six years Brendan Johnson served as U.S. attorney for the State of South Dakota.

During his time as federal prosecutor, Johnson says fully 100 percent of the women and girls engaged in the sex trafficking industry were victims of rape and-or sexual abuse earlier in their lives.

“We had an underage girl from the Rosebud Reservation in South Dakota who was picked up in Sioux Falls and wound up in a sex ring,” said Johnson, who is now in private practice, in a phone interview from his office in Sioux Falls, S.D. “She was a single mother and had not a penny to her name, which is very common. She didn’t want to rely on government assistance because of the fear that her child would be taken away. She had also been sexually abused prior to this. So the high economic impact of these situations is hard to accurately quantify, because of post-traumatic stress disorder and the related issues for girls who are vulnerable targets for these criminals.”

Tribal women are the most vulnerable group of women when it comes to rape; nearly three times as likely to suffer sexual assault than all other races in the United States, according to the U.S. Bureau of Justice.

“It happens every day in every native community–it’s that common,” says Jodi Gillette, the former special assistant on Native American Affairs to the White House. “I know literally dozens of women who have told me at one point or another that they were raped or sexually abused, but no one talks about it because of the stigma. So they suffer in silence.”

Gillette, who now serves as a tribal policy advisor for the Sonosky Chambers law firm in Washington, D.C., recently testified at the U.S. Permanent Mission to the United Nations in Geneva that even with recent passage of the Tribal Law and Order Act of 2010 and the Violence Against Women Act of 2013, which closed jurisdictional gaps and allowed non-tribal perpetrators to be tried in tribal courts, much work remains to be done.

Basic Services a Struggle

“Many tribes struggle to provide basic victims services, necessary training and staff for courts and adequate mental health care,” said Gillette in a recent phone interview. “To this day, tribes still cannot prosecute non-Indians for child abuse, rape and other serious crimes against women and children and must rely on the federal authorities, who usually only prosecute the worst crimes. This leaves vulnerable many Indigenous women and children unprotected in their own homelands.”

Nearly one-third of tribal women, or approximately 875,000 nationwide, report being raped at some time in their lives. Two-thirds of their perpetrators are non-Indian, who until very recently could not be prosecuted in tribal court and are still unlikely to ever face formal charges for their crimes in state or federal court. This is due, in part, to the fact that–despite the recent expansions of tribal court to prosecute rape–many smaller and-or remote tribes either do not have their own tribal court systems and do not have the resources to establish one.

The scourge of rape in Indian country has impacted every single community among the nation’s 567 federally-recognized tribes, whose total population hovers around 5.2 million.

The costs–both emotional and financial–are staggering for communities already beset by poverty and its attendant social problems in geographically isolated regions.

The American College of Emergency Physicians, based in Irving, Texas, estimates that the tangible costs of rape–for both the victim and the society–are approximately $150,000 per victim. That amount covers a range of categories including expenses for justice and prosecution, physical and mental health issues for the woman and her family, social services including emergency response teams and shelters, loss of education, loss of wages and/or employment.

Emotional costs, including pain and suffering for the victim and her children, possible death of the victim, including suicide and others, are incalculable.

Native American writer Louise Erdrich, in her 2012 book “The Round House,” tells the story of Geraldine Coutts, an Ojibwe woman who has been raped on Indian land. After her attacker goes free because of jurisdictional issues on Indian reservations, her teenaged son sets out on a quest to seek justice for his mother, who has retreated to her bed, paralyzed by grief and trauma.

Though the story is fictional, Erdrich’s book accurately captures the terrible toll of rape for Native women

Tribal leaders estimate that the final tally is in the billions for native communities already strapped by poverty and lack of opportunity.

Overlapping Issues

The pervasive and pernicious nature of sexual assault and abuse overlaps with a variety of other serious issues within native communities.

“Sexual assault presents some of the greatest challenges in Indian country,” Kevin Washburn, assistant secretary for the Bureau of Indian Affairs, said in a recent email interview. “Because of the devastating impact that sexual assault can have on self-worth and self-esteem, we know that it may be a contributing factor to the epidemic of youth suicides. As we try to help tribal communities cope with a suicide crisis, it is imperative that we address each of the risk factors. For that reason, we have been working on better responding to the needs of survivors of sexual assault.”

Across the country, geographic isolation and jurisdictional complexities continue to be the biggest obstacles in both the prosecution and restitution of these crimes, particularly in Alaska, which has 229 tribes and is nearly three times larger than Texas.

The Northern Plains and the tribes of the Southwest are similarly situated, with tribal law enforcement and social service departments already bursting with overflowing caseloads and limited resources to prosecute. But with a growing sense of urgency, many tribes are redirecting as many resources as possible to address what is regarded as a human rights crisis in Indian communities.

The two largest tribes–the Cherokee Nation and Navajo Nation, for example–have dedicated agencies to assist their tribal members who are victims of sexual assault and other violent crimes. In 2013, the Cherokee Nation opened the One Fire Victims Service Office, which provides emergency advocate assistance to law enforcement, transitional housing and even legal assistance for victims of domestic violence, sexual assault, stalking or dating violence.

Help Navigating the System

The Navajo Nation Victims Assistance Program also works closely with the three states within its boundaries–Arizona, New Mexico and Utah–to assist its tribal members with help in navigating the legal system, as well as completing applications for financial assistance for health-related expenses, costs of funerals, lost wages, eyewear, and Native healing ceremonies and traditional medicine people.

The smaller tribes, many of whom have poor economies and high unemployment, still struggle with the enormous legal, logistic and financial burdens of sexual assault in their communities.

For them, not much has changed over the years, in spite of new legislation and programs to help stem the violence against Native women.

Gillette recalls a high school friend from the 1980s whose case is one of the few that have ever gone to trial. She says her friend, who was from the Northern Plains, was skewered and portrayed as a “whore” on the stand after being gang-raped by a half-dozen white teenagers from a neighboring community, even though she was a virgin at the time of the assault. Nonetheless, her perpetrators went free while her friend felt punished for coming forward.

“They made an example of her,” said Gillette, who remains haunted by her friend’s case. “The message was clear, ‘This is what’s going to happen to you if you tell.’ And she was only 15 years old. In this day and age, you’d think we’re past that–but we’re not.”

Riverton hospital moves to enter EPA tribal boundary dispute

Riverton hospital moves to enter EPA tribal boundary dispute

By Ben Neary, Associated Press

Riverton Memorial Hospital maintains that a recent medical malpractice case filed against it in tribal court on the Wind River Indian Reservation underscores the problems the U.S. Environmental Protection Agency created in its recent decision that the city of Riverton and surrounding lands remain legally Indian Country.

Tribal spokesmen, however, say the tribal court has handled claims against the hospital for years and question why it would raise jurisdictional questions now.

The EPA’s 2013 decision that Riverton and more than 1 million acres of surrounding land remain part of the Wind River Indian Reservation came in response to a joint application from the Northern Arapaho and Eastern Shoshone tribes to treat their joint Wind River Indian Reservation essentially as a separate state for purposes of administering the federal Clean Air Act.

The hospital on Wednesday asked the 10th Circuit Court of Appeals to allow it to file a friend-of-the-court brief. The hospital wants to join the state of Wyoming, the City of Riverton, Fremont County and others in fighting the EPA ruling.

Wyoming Gov. Matt Mead maintains Congress extinguished the land’s reservation status 100 years ago when it opened the area to settlement by non-Indians.

In protesting the EPA decision, Mead and other Wyoming officials have said that a court ruling establishing Riverton remains legally on the reservation would affect provision of state services, including law enforcement protection, to non-Indian residents there.

In the malpractice case pending in tribal court, Riverton lawyer John Vincent represents Cody Armajo, a Northern Arapaho woman. The lawsuit alleges she was taken to the hospital in February 2013 complaining of an injury to her eye but that a doctor there examined her and found nothing much wrong.

The lawsuit states that Armajo was ultimately transported to jail in Lander and jail personnel took her to another hospital when she continued to complain of pain. Doctors there determined she had been shot in the eye and a bullet lodged in her head.

The Riverton hospital’s request to dismiss Armajo’s case is pending in tribal court. The hospital’s arguments filed with the federal court this week state that tribal court is a quagmire where rules and the law are ill-defined.

“This is the impact of the EPA’s decision: a non-Indian business has been hailed into tribal court,” the hospital’s lawyers wrote to the appeals court. “The expansion of the tribes’ jurisdiction over an entire city has already begun to have negative consequences on the city’s businesses.”

Patrick J. Murphy, a Casper lawyer representing the hospital, didn’t immediately return a telephone call to his office on Thursday seeking comment.

Vincent, a former mayor of Riverton, said Thursday that the tribal court had handled medical malpractice claims against the hospital before the EPA ruling. “I don’t know all of a sudden why this case would stir the controversy up,” he said.

The appeals court gave other parties including the tribes until June 8 to file a response to the hospital’s request to enter the case. Mark Howell, spokesman for the Northern Arapaho Tribe, said Thursday the tribe would oppose the hospital’s request.

Richard Brannan, a member of the Northern Arapaho Tribal Council, issued a statement Thursday saying the Riverton Hospital receives millions of dollars in funding through the Indian Health Service each year for treatment of tribal members.

“This is not the first time that they’ve had to manage claims for medical negligence in tribal court,” Brannan said. He said the Council is confident the hospital will have a fair opportunity to present all its defenses.

Ronald Oldman, a spokesman for the tribe, issued a statement saying the tribe is actively monitoring Armajo’s case.

“A tribal member was walking down the street in Riverton. She was shot at random by an unknown gunman, and taken to the Riverton hospital with a bullet hole in her head,” Oldman said. “Hospital staff failed to notice the gunshot wound and discharged her.”

Sioux tribes, county agree on law enforcement for Pe’ Sla

By The Associated Press

RAPID CITY, S.D. (AP) — An agreement on law enforcement was reached Tuesday between Pennington County and four Sioux tribes that bought 3 square miles of land they consider sacred in western South Dakota’s Black Hills.

In 2012, the Great Sioux Nation raised $9 million to buy land the tribes call Pe’ Sla from private landowners. The tribes hope to put the land, also known as Reynolds Prairie, in trust with the federal government to be held on behalf of tribal members.

None of the tribes has a headquarters closer than a four-hour drive from Pe’ Sla, the Rapid City Journal (http://bit.ly/1JQ1LYV ) reported. The area is used as a ceremonial site by the tribes because of its role in tribal creation stories. They also plan to reintroduce bison to the site.

If the land is put into trust, tribal jurisdiction would apply. But the agreement would allow the county, the Bureau of Indian Affairs and tribes to handle law enforcement. If a tribal member is cited or arrested for a crime at the site, he or she would be prosecuted in tribal court, but non-tribal members would be prosecuted in other courts belonging to the local jurisdiction.

Sheriff Kevin Thom said he has some concerns about the agreement, which he called “a little confusing, a little mushy.”

For example, it doesn’t specify which party will be responsible for transporting a tribal member who’s arrested by a county deputy at Pe’ Sla to tribal court on the Rosebud Reservation, he said. It’s also unclear if county deputies will be required to testify in tribal court, requiring them to drive several hours to the reservation, according to Thom.

“That creates some problems from an enforcement standpoint,” he said.

But county commissioners still approved the agreement with a 3-1 vote.

___

Information from: Rapid City Journal, http://www.rapidcityjournal.com

Chippewa Cree tribal chair ousted again

This April 17, 2013 photo shows Kenneth Blatt St. Marks at his home in Box Elder. St. Marks, the former chairman of the Chippewa Cree tribe, is participating in a federal investigation into corruption on the reservation that includes money missing from a $361 million pipeline project to bring fresh drinking water to the reservation.  Matt Volz/Associated Press

This April 17, 2013 photo shows Kenneth Blatt St. Marks at his home in Box Elder. St. Marks, the former chairman of the Chippewa Cree tribe, is participating in a federal investigation into corruption on the reservation that includes money missing from a $361 million pipeline project to bring fresh drinking water to the reservation. Matt Volz/Associated Press

By The Associated Press

GREAT FALLS (AP) — The executive body of the Rocky Boy’s Chippewa Cree tribes in north-central Montana voted Monday to expel chairman Ken Blatt St. Marks for the third time.

The Great Falls Tribune reported that in an opinion issued Monday, the Chippewa Cree Business Committee said they found St. Marks has “committed gross misconduct and neglected his duty.”

The on-again, off-again chairman was first elected chair of the committee in 2012 and since that time has been ousted by the committee on two other occasions after theft, fraud, sexual harassment and other allegations. St. Marks has been reinstated after lengthy court battles and re-elections. He was most recently elected by voters again in February.

St. Marks has never been officially charged in tribal, state or federal court based on allegations in the committee’s opinion. He has said the committee’s actions are in retaliation for his cooperation with federal authorities investigating corruption.

The U.S. Interior Department ruled to that effect in December, saying the Chippewa Cree Business Committee violated federal whistleblower laws when it terminated St. Marks as its chairman in March 2013. The department determined there was sufficient evidence to indicate St. Marks was removed by the tribal council at the time because he was cooperating with a federal corruption investigation on the Rocky Boy’s Indian Reservation.

About a dozen people have been convicted or pleaded guilty to federal fraud charges over the awarding of construction contracts and kickbacks paid to tribal officials.

In this week’s dismissal, the Chippewa Cree Business Committee said St. Marks has defrauded the tribe of more than $2.3 million in fraudulent charges and shoddy or incomplete work performed by his construction company, Arrow Enterprises. St. Marks is also charged with attempting to improperly “freeze” tribal bank accounts and with interfering with an ongoing bankruptcy proceeding.

“They just keep on making up lies, they keep on saying I stole money and I keep on telling them the same thing — ‘Go get me indicted,'” St. Marks told the Tribune on Tuesday. “I’ve never went through the tribal court on these charges. The courts have never, ever charged me with anything. It’s the tribal council that keeps acting like judge, jury and executioner.”

The most recent termination of St. Marks means the reservation will need to schedule the fourth election since November 2012.

Northwest Tribal Courts Using Cutting Edge Technology to Promote Access to Justice

 

Source: Northwest Intertribal Court System

The Northwest Intertribal Court System (NICS) today launched a powerful online database providing attorneys and the public free access to hundreds of tribal court appellate opinions from thirty Indian tribes in the Pacific Northwest, Alaska, and Northern California.

The new NICS platform features a “Boolean” search engine, hyperlinked subject matter and tribal indexes, U.S.-based technical support, and a mobile application. Until now, the opinions have been available only in print or on CD.

Other legal databases, like Westlaw and LexisNexis, charge a substantial fee for similar services. NICS can provide its database for free, in part because of grants from the charitable funds of the Tulalip, Muckleshoot, and Shoalwater Bay Indian Tribes, and ongoing support from NICS’ other member tribes.

“Publishing these appellate court opinions online with a powerful search engine and making it available for free puts NICS and the many tribes participating in this project on the cutting edge of using technology to promote access to justice,” said Michael Rossotto, the NICS Appellate Department Director. “While federal, state and many tribal courts publish their decisions online, we are not aware of any other court system, federal, state or tribal, that offers online access to its decisions with all of the features we are offering free of charge,” said Rossotto.

Formed in 1979, the Northwest Intertribal Court System (NICS) is a consortium of Indian tribes that have joined their resources to ensure that each tribe is able to have its own court by sharing judges, prosecutors, and court-related services. The database represents a new and important chapter in the development of tribal justice systems and demonstrates NICS’ dedication to its member tribes.

The new NICS database will support its member courts by increasing efficiency, promoting access, bolstering tribal court credibility, and demonstrating the inherent sovereignty of the tribal governments, tribal officials said.

“Published appellate decisions are a testimony of tribal sovereignty and our inherent right to govern our affairs according to Shoalwater Bay Tribal laws and customs,” said Lynn Clark, Court Administrator for the Shoalwater Bay Tribe. “It promotes the Tribal Court’s professional credibility and shares appellate judgments and precedents in tribal laws.”

Pro se litigants will especially benefit from the new system. For the first time, tribal members who represent themselves in the tribal courts administered by NICS can tap into the collective wisdom of hundreds of tribal court jurists with a free and easy-to-use online database. Legal scholars, judges, and tribal law practitioners throughout the U.S. will also benefit from being able to access and research this rich resource, which now spans over 27 years of court decisions and will be continually updated as new opinions are issued by NICS-administered courts.

“Making our Court of Appeals’ opinions available online will better enable our tribal members to represent themselves,” said Muckleshoot Tribal Council Chair Virginia Cross. “It should also reduce costs for those who are able to afford a spokesperson or attorney, and will reduce the overall cost of administering our justice system by making legal research quicker, easier and more effective.”

“The Tulalip Tribes have for many years published the opinions of our Court of Appeals with NICS, the Indian Law Reporter, and Westlaw. Making these opinions available and researchable for free through the NICS website is yet another example of Tulalip’s exercise of its sovereign authority and its leadership in implementing the federal Tribal Law and Order Act and Violence Against Women Act,” added Herman Williams, Chairman of the Tulalip Tribes.

NICS’ tribal court appellate opinions, previously compiled in books known as “appellate reporters,” are published online by Code Publishing Company, Inc., of Seattle, Washington.  NICS is also taking pre-orders for a library-quality bound reprint edition of the entire series of reporters.  To access the NICS Tribal Court Appellate Opinions database, view a list of the participating tribes, or order the library-quality print edition, visit NICS on the web at: www.nics.ws.

About the Northwest Intertribal Court System

NICS’ mission is to assist its member tribes, at their direction, in a manner that recognizes the sovereignty, individual character, and traditions of those tribes in the development of tribal courts that provide fair, equitable, and uniform justice for all who come within their jurisdiction. NICS promotes tribal sovereignty through the administration of professional, efficient and unbiased courts that provide a forum for the peaceful and fair resolution of disputes. NICS was formed in the late 1970s in direct response to the requirement of the “Boldt decision” that a tribe needed to have a comprehensive scheme for enforcing its fishing regulations before the federal court would give final authorization for a tribe to regulate its own fisheries free from interference by the State of Washington. As the federal government returned to a policy of promoting tribal self-governance during this period and tribal governments began to reassert their sovereignty and pass tribal ordinances in many areas besides fishing, NICS-administered tribal courts quickly grew from hearing fishing disputes to being courts with broad jurisdiction under the laws of their tribes. In 2002, NICS was recognized by Harvard University as one of the top 100 programs in its annual Innovations in American Government Awards competition. Many of the original NICS member tribes now administer their own courts, while NICS now provides services to numerous non-member tribes on a fee-for-service basis. NICS’ current member tribes include the Chehalis, Muckleshoot, Port Gamble S’Klallam, Sauk-Suiattle, Shoalwater Bay, and Tulalip Tribes. For more information, visit www.nics.ws.

About the Tulalip Tribes

The Tulalip Tribes are the successors in interest to the Snohomish, Snoqualmie, Skykomish and other tribes and bands signatory to the 1855 Treaty of Point Elliott.  The 22,000-acre Tulalip Indian Reservation is located north of Seattle in Snohomish County, Washington. Tribal government provides membership with health and dental clinics, family and senior housing, human services, utilities, police and courts, childcare, and higher education assistance. The Tribe maintains extensive environmental preservation and restoration programs to protect the Snohomish region’s rich natural resources, which includes marine waters, tidelands, fresh water rivers and lakes, wetlands and forests both on and off the reservation. Developable land and an economic development zone along the I-5 corridor provide revenue for tribal services. This economic development is managed through Quil Ceda Village, the first tribally chartered city in the United States, providing significant contributions and benefits tribal members and the surrounding communities. The Tribes have approximately 4,400 members. For more information, visit www.tulaliptribes-nsn.gov.

About the Muckleshoot Tribe

The Muckleshoot Indian Tribe is a federally recognized Indian tribe whose membership is composed of descendants of the Duwamish and Upper Puyallup people who inhabited Central Puget Sound for thousands of years before non-Indian settlement.  The Tribe’s name is derived from the native name for the prairie on which the Muckleshoot Reservation was established.  Following the Reservation’s establishment in 1857, the Tribe and its members came to be known as Muckleshoot, rather than by the historic tribal names of their Duwamish and Upper Puyallup ancestors.  Today, the United States recognizes the Muckleshoot Tribe as a tribal successor to the Duwamish and Upper Puyallup bands from which the Tribe’s membership descends.  For more information, visit the Muckleshoot Tribe at www.muckleshoot.nsn.us/.

About the Shoalwater Bay Tribe

The mission of the Shoalwater Bay Tribe is to become self-sufficient and provide for the spiritual, social, economic and physical health of tribal members, while honoring traditions of the past and leaving a responsible legacy for future generations. The Shoalwater Bay Indian Reservation is located on the shores of Willapa Bay in southwestern Washington at the southern end of the Tribe’s ancestral homeland. The Tribe draws its membership from the Lower Chehalis, Shoalwater Bay, and Chinookan peoples. A small but strong tribe, the Shoalwater Bay Tribe is deeply connected to its history, and works hard to preserve its language and culture. Meanwhile, the Tribe also strives to grow its reservation economy, which includes the Shoalwater Bay Casino, a tribally chartered construction firm called Willapa Bay Construction, LLC, and a number of other tribal enterprises. The Tribe is especially dedicated to improving the health and lifestyles of its members while also increasing awareness of Shoalwater Bay Tribe culture and expanding the Tribe’s influence. For more information, visit

www.shoalwaterbay-nsn.gov/.

About Code Publishing Company

Code Publishing Company (CPC) is an innovative, full-service publishing company.  CPC offers codification and electronic publishing services to help its customers keep pace with the information age. CPC uses the latest technology to provide customers with high quality print publications along with an electronic version of all documents published. CPC provides print on-demand services, Internet/Intranet access services, and technical and legal editing services and data conversion to a variety of organizations and Indian tribes. Visit CPC on the web at www.codepublishing.com.

Embattled Nooksacks win delay in loss of membership

By John Stark, The Bellingham Herald

DEMING – The 306 people facing loss of Nooksack Indian Tribe membership have won a round in tribal court, getting a judge to order the tribal council to stop its latest effort to oust them.

The Thursday, June 12, ruling from Tribal Court Chief Judge Raquel Montoya-Lewis stems from a March 2014 Nooksack Court of Appeals ruling. The appeals judge panel had ordered a halt to the process of removing people from tribal enrollment rosters until the tribal council could draw up an ordinance spelling out the procedures for stripping people of tribal membership. Such an ordinance also would require approval from the U.S. Bureau of Indian Affairs, the appeals court ruled.

But in mid-May the tribal council began sending out new notices to some members of the affected families, scheduling July disenrollment hearings before the tribal council under the terms of a 2005 tribal membership ordinance that received BIA approval in 2006. Gabe Galanda, the Seattle attorney representing the threatened families, went back to court to challenge the legality of that maneuver.

After an earlier hearing, Montoya-Lewis agreed that the tribal council was out of bounds.

“This approach appears to be an attempt to circumvent the very clear holdings of the Court of Appeals,” Montoya-Lewis wrote.

While the judge’s ruling delays the move to strip the 306 of tribal membership, it likely will not stop it. There appears to be no legal obstacle to the process, once the tribal council passes the necessary ordinance and gets federal approval. Nooksack Tribal Council Chairman Bob Kelly, who has pushed for the disenrollment, was recently reelected and has the support of a majority of council members.

The disenrollment controversy began in early 2013 after Kelly and a majority of other council members agreed that members of the Rabang, Rapada and Narte-Gladstone families had been incorrectly enrolled in the 2,000-member tribe in the 1980s, and their enrollments should be revoked.

Since then, members of the affected families have mounted a vigorous legal and public relations effort to retain their Nooksack membership. That membership entitles them to a wide range of benefits, among them fishing rights, health care, access to tribal housing and small cash payments for Christmas and back-to-school expenses.

Those facing the loss of tribal membership have based their membership claim on their descent from Annie George, who died in 1949. Members of those three families have introduced evidence that Annie George was Nooksack, but those who want the three families out have noted that George’s name does not appear on a list of those who got original allotments of tribal land or on a 1942 tribal census, and those two criteria determine legal eligibility for membership.