Yakama Tribal Court to hear case over state’s elk management

 

May 7, 2014

By Kate Prengaman / Yakima Herald-Republic
kprengaman@yakimaherald.com

YAKIMA, Wash. — The Yakama Nation Tribal Court ruled it has jurisdiction in an unprecedented lawsuit that maintains that the state has responsibility to manage an elk herd to prevent damage to a sacred burial site.

Chief Judge Ted Strong found in favor of the tribal member who brought the civil suit against the state Department of Fish and Wildlife when he ruled Friday that the Tribal Court has the authority to hear the case. He ordered the parties to discuss settlement options before continuing with hearings.

Attorneys for the state had asked the court to throw out the lawsuit, saying it lacked authority over Wildlife Department officials named in the suit because they are not tribal members and because the burial site is not on the reservation.

In the case of the burial sites, the judge found that the court’s jurisdiction should not be limited to the reservation.

The case was brought under a 1989 state law allowing tribal members to seek damages in civil court against those who have knowingly damaged Indian burial sites. The law allows cases to be brought in Superior or Tribal Court, but this is the first time a case has been heard in Tribal Court.

It’s a test case for the authority of the Tribal Court, said Jack Fiander, the attorney representing Shay-Ya-Boon-Il-Pilpsh, who brought the case. Fiander said he hopes this case can demonstrate the fair, professional process of the Tribal Court.

Typically, tribal courts only have jurisdiction over cases involving tribal members and tribal lands.

“The Yakama Tribal Member who seeks preservation of the ancient burial grounds has no less right to be heard by this court simply because the remains of his fellow Yakama lies buried in the grave some miles distant from the Yakama Reservation Boundary,” Judge Strong wrote in the order granting the jurisdiction.

The tribal court is “uniquely competent” to hear concerns about the desecration of burial sites, he wrote.

Plaintiff Shay-Ya-Boon-Il-Pilpsh, who is also known as Ricky Watlamet, is charged in Kittitas County Superior Court with felony unlawful hunting after allegedly shooting several of the elk on the Kittitas County property where the burial site is located.

He was invited by the nontribal landowner who was frustrated with the Wildlife Department’s response to her complaints about damage by the elk, which were also eating grasses intended for cattle.

But under state law, tribal members’ treaty hunting rights that allow them to hunt outside of the state-set seasons don’t apply on private land.

Fiander is also representing his client in the criminal case, but he said that he’s encouraged by the Tribal Court’s decision to hear this civil case.

“I think everybody’s pleased about the decision, but we see it as chapter three of about seven,” Fiander said.

“I’m cautiously optimistic that in less than a month as the snow melts that the elk will start leaving the property and hopefully, a settlement can be reached for next year.”

In other areas with elk problems, Fiander said management strategies have included temporary fencing or issuing more hunting permits to keep the herd smaller.

A spokeswoman for the state Attorney General’s Office, which represents the Wildlife Department, said in an email that it is “reviewing the decision with our clients and considering our course of action.”

The next hearing is set for June 19, after the parties meet to discuss settlement options.

Once the Tribal Court has reached a conclusion in the case, the decision can be subject to a federal court review to ensure the process was fair, Fiander said.

But, he said he would not be surprised if the state’s attorneys planned to appeal.

“My sense is that ultimately it will end up in federal court,” Fiander said.

Tribal judge works for Yurok-style justice

Abby Abinanti metes out a more community-based form of justice for tribal members — starting with the question, ‘Who’s your mom?’

March 5, 2014 By Lee Romney LATIMES.com

Photography by Francine Orr

Klamath, Calif – Abby Abinanti squints at her docket. “The court is going to call — the court is going to put on its glasses,” she says dryly, reaching to grab her readers and snatch some candy from a staff member.

As chief judge of the Yurok Tribal Court, Abinanti wears no robe. On this day, she’s in jeans and cowboy boots, her silver hair spilling down the back of a black down vest. In contrast to her longtime role as a San Francisco Superior Court commissioner, she doesn’t perch above those who come before her; she shares a table with them.

“Hi, big guy. How are you doing?” she softly prods a 29-year-old participant in her wellness court, which offers a healing path for nonviolent offenders struggling with substance abuse.

Abinanti has watched Troy Fletcher Jr. battle bipolar disorder and methamphetamine addiction, land in jail and embrace recovery under the tribe’s guidance. She’s known his grandmother since before he was born.

Though that would be cause for recusal in the state system, here it’s pretty much the point. Her most common question for court newcomers: “Who’s your mom?”

“Here we have a village society,” Abinanti says of California’s largest tribe, “and the people who help you to resolve your problems are the people you know.”

Native American jurisprudence has evolved since tribes began to regain their sovereignty, returning to traditional values of respect, community support and responsibility, and collective healing — for victims, perpetrators and the circle of lives they touch.

Abinanti, who in 1974 became the first Native American woman admitted to the State Bar of California, has been at the forefront.

Yurok Tribal Court Chief Judge Abby Abinanti presides over a session of wellness court in Klamath, Calif. Wellness court, a part of the tribal court, offers a healing path for nonviolent offenders struggling with substance abuse. More photos

Yurok Tribal Court Chief Judge Abby Abinanti presides over a session of wellness court in Klamath, Calif. Wellness court, a part of the tribal court, offers a healing path for nonviolent offenders struggling with substance abuse. Click for more photos

 

“When you’re looking to heal, you look wherever you can to find medicine, and one of those places is in the culture and practices of the community,” says retired Utah appellate court Judge William A. Thorne Jr., a Pomo-Coast Miwok who teamed with Abinanti in the 1980s to train tribal court personnel nationwide.

Now, at 66, Abinanti has returned to her home on sacred Requa Hill above the fog-wisped mouth of the Klamath River. (Though she tried to retire from the San Francisco bench in 2011, she was recently asked to return every other week, so she commutes.)

“What happened is we lost touch with our responsibilities,” Abinanti says. “You take responsibility for what you did…. And if you can ask for help, I’m willing to give you a hand. I won’t ever say you’ve used up your chances.”

Abinanti speaks often of “historical trauma” — wounds passed wordlessly through generations with an accumulating grief and the urge to salve it with alcohol and drugs. It is what Yurok tribal Chairman Thomas O’Rourke calls “the sickness of this land.”

Her family had its share. Her maternal grandfather, Marion Rube, was described in press accounts as among “the notorious criminals of early California.” Captured after a 1922 bank heist, he escaped six years later from a San Quentin prison road camp and was shot to death in southern Oregon.

Ostracized, his wife and three daughters fled their village. The girls were shipped off to government-run boarding school. Sorrow shadowed them; harsh deaths claimed them. One, intoxicated, froze in a snow bank; another, newly sober, caught on fire after backing into a heater. Abinanti’s mother, who struggled with alcohol, depression and forced electroshock treatments, died while detoxing.

Her history, rarely shared, informs Abinanti’s compassion. “It’s painful to be a drunk, to not meet your promises, to not look your kids in the eye,” she says. “To disrespect them on top of that doesn’t do any good.”

Abinanti was studying journalism at Humboldt State University when she saw a flier for a program for Native American students at the University of New Mexico School of Law.

Thorne met her in 1975 when he was interning at the Ukiah office of California Indian Legal Assistance. Just two years out of law school, she was the group’s board president.

“In walked this powerful Indian woman,” Thorne recalls. “She was this image of what I could seek to become, an Indian person who was a force to be reckoned with and yet just very kind.”

Appointed to the San Francisco bench two decades ago, she has specialized in family court and juvenile dependency. She has also served as a judge or magistrate for four other Western tribes.

She first came home to Yurok country in 1978 to set up the tribe’s fishing court, then again in 1993 when the tribe earned federal recognition. The Yurok Tribal Court was launched three years later, and in 2007 she became its chief judge.

Among her innovations: the first tribal-run program in the nation to help members expunge their criminal records; and California’s first tribal child support program, which allows for non-cash alternatives to support payments — such as donations of fish or manual labor.

Yet her greatest impact has arguably come through wellness court. Some participants seek out the program on their own in the course of recovery; others, like Fletcher, come through a rare partnership with the state criminal justice system: Abinanti’s decades on the bench have earned her crucial credibility with judges, prosecutors and probation officials, allowing her staff to pull tribal members out of criminal court and bring them home.

Fletcher was facing an arson charge for burning brush when a tribal court attorney secured his release from a Eureka jail cell in a pre-trial diversion agreement and brought him into Abinanti’s program. He is now stable on psychiatric medication, off meth and in a sober-living home.

“I used to be afraid to go into court, afraid that they were going to take something from me,” Fletcher says outside tribal headquarters, his large hands working a rope into a monkey’s fist. “Here, they’re trying to give something back.

“I’ve got the whole tribe behind me,” he adds. “When I have to answer to my people, it makes me want to do better.”

Abinanti never swears in witnesses, explaining: “If you’re Yurok and you lie, that’s on you.”

On this day, her general court is in session, arranging restitution for various infractions. Participants can demand a trial, but most tend to tell Abinanti what they did. Then they talk about how to best “settle up.”

So it goes with Taos Proctor, 32. Towering and broad-chested, with full-sleeve tattoos, he sits across from Abinanti, looking unhappy. His violation: fishing after the season had closed.

Of 73 fish seized, she orders that 53 be donated to a program for elders. The rest, which belonged to a relative of Proctor’s, will be returned to him to give back to the rightful owner.

Proctor is also a wellness court client. Though Abinanti pokes him harshly with a long finger during a court break and quips to a visitor that he has “the manners of a stump,” she is fiercely proud of him.

Pulled into the meth life, he was committed to a county boys’ ranch at 16. Next came the California Youth Authority and prison. Released at 25, he bounced in and out of jail before he found himself facing a third strike.

The charge turned out to be unsubstantiated, and with help from the tribal court’s criminal attorney, he pleaded to a lesser count. It marked the first time Del Norte County Superior Court Judge William H. Follett agreed to hand a felony case to wellness court as a condition of probation.

“I know I can trust her,” Follett says of Abinanti. “If people are continuing to not do their program or to do drugs, she’ll know to send them back…. She’s taught me that there’s another way of doing things.”

Proctor became a fish buyer, took a job felling trees and, at Abinanti’s insistence that he give back, hosts a weekly Narcotics Anonymous meeting. He has been off meth for 15 months.

“Judge Abby knows me. She works with me,” he says. “I’ve still got a lot of issues that I’m working on, but I don’t have to hide them anymore.”

Court staff members are pulling for him. “I don’t want to let them down,” Proctor says. “I want to help my community because for so long, I didn’t.”

Abinanti also presses participants to remember — or discover — what it means to be Yurok. It’s a journey the tribe is taking collectively, as the language and ancient dances are revived.

On a recent day, she asks one man who has been drumming and stoking the fire at sweat lodge ceremonies if he’d listened to the CDs of Yurok songs she had compiled for him.

“I’d like you to hear ’em,” she tells him. “I think that would help.”

Abinanti could use a rest. Next to her armchair is a stack of books she longs to devour. But important work remains.

Of more than 5,000 Yurok tribal members, only a handful are bar-certified attorneys; and of the attorneys working for the tribal court, Abinanti is the only Yurok.

The tribal council recently approved a pilot project that Abinanti brokered with online Concord Law School- Kaplan University. Under the agreement, 10 tribal members will enroll by September, receiving tailored supervision to help them pass the bar exam. Four began last month. In return for tuition, which Abinanti must now raise from donors, participants agree to continue working for the tribe for five years once they pass the bar.

“I don’t want to be diverted,” she says. “I want to do what needs to be done at home that right now only I can do. If I do a good job, then that won’t be true anymore…. I’m here. I need people behind me.”

She knows, after all, that she won’t be around forever.

Last summer, Abinanti established a family burial ground on her Requa Hill property, and after more than four painful decades brought her mother’s remains home.

One day Abinanti will be buried next to her, and she hopes the resting place — filled with the music of the Pacific — ends the suffering of her maternal family line.

“She deserves some peace.”

Contact the reporter

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Ouster of Nooksack tribal council members triggers new lawsuit

 

By JOHN STARK

THE BELLINGHAM HERALD January 23, 2014

DEMING – Two members of the Nooksack Indian Tribe’s eight-member governing council have been replaced by Chairman Bob Kelly and the other council members who support the effort to strip 306 Nooksacks of tribal membership.

But Seattle attorney Gabriel Galanda filed a new lawsuit in tribal court on Tuesday, Jan. 21, to challenge the legality of the council’s action, taken Monday, Jan. 20.

In another legal development, the Nooksack Court of Appeals handed the challenged Nooksack tribe members a significant victory on Wednesday, Jan. 22. The court ordered the suspension of the tribal disenrollment process while the court continues its review of legal issues Galanda has raised on behalf of those facing loss of tribal membership.

Last week, after the same appeals court lifted an earlier stay of the disenrollment process, tribal police had begun serving disenrollment notices to affected tribe members, notifying them of the date and time for their telephonic hearing before tribal council.

In an email message, Chairman Kelly said Michelle Roberts and Rudy St. Germain were ousted from the council under a provision of the tribal constitution that allows removal of council members who miss more than three consecutive meetings without an excuse. The council then named Roy Bailey to replace St. Germain and David Williams to replace Roberts.

Roberts and St. Germain are among the 306 Nooksacks facing disenrollment.

In a sworn statement filed in connection with the latest lawsuit, Michelle Roberts accuses Kelly of calling three council meetings with little advance notice on Jan. 17, 18 and 20 – the Martin Luther King Day holiday. Roberts said she believed that Kelly had called the meetings so she and St. Germain could be served with disenrollment papers. Instead, she and St. Germain contacted Kelly via email to let him know that they would attend the meetings by teleconference, as council members had done on some past occasions. But when she called the chairman’s office to participate in the first two meetings, Roberts said there was no answer.

For the Martin Luther King Day meeting, Roberts said she phoned in again, and “the person who answered the phone said the council was already in session and that she was instructed to not patch me in to the meeting.”

Later that day, Roberts said she discovered that her tribal cellphone and email account had been shut down.

Roberts said she believes Kelly and his supporters on the council want to get her and St. Germain out of office so that they cannot participate when other challenged Nooksacks get their opportunity to argue their case for tribal membership before the council.

The current legal battle is rooted in longstanding resentment against three families whose members were admitted to tribal membership in the 1980s. The members of those families are descendants of Annie George, who died in 1949. Members of those three families – the Rabangs, Rapadas and Narte-Gladstones – have introduced evidence that Annie George was Nooksack, but Kelly and his backers say George’s name does not appear on a list of those who got original allotments of tribal land and or on a 1942 tribal census.

In his most recent court filings on behalf of the challenged Nooksacks, Galanda has argued that regardless of George’s status, members of the three families can meet one of the other membership criteria spelled out in the tribal constitution: They are descended from other people who were enrolled tribal members, and they possess one-fourth Indian blood.

The tribal courts have yet to address that argument directly, and it remains to be seen if those courts will take action to stop the tribal council from disenrolling members of the three families.

Four positions on the tribal council – including Kelly’s – are up for election this year, with a primary scheduled for Feb. 15 and a general runoff election on March 15.

The 2,000-member tribe operates two Whatcom County casinos. The February 2013 edition of the official tribal newsletter, Snee-Nee-Chum, reported that the tribe’s 2013 expenditures would add up to about $39 million, with about 24 percent of the available revenue coming from the casinos and smaller tribal enterprises.

While the tribe’s annual budget might seem like a lot compared to what comparable-sized non-Indian cities spend per year, it includes significant amounts for tribally run health care and social services that are supported with federal money. Those are among the benefits the families facing ouster could lose.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com . Read the Politics Blog at bellinghamherald.com/politics-blog or get updates on Twitter at @bhampolitics.

Tulalip is ready for VAWA

During a visit from White House officials, Valerie Jarrett, Senior Advisor to President Obama, and Chair of the White House Council on Women and Girls, commended Tulalip for all of it’s efforts, both in criminal justice in general and specifically for playing such an impactful role bringing awareness to the plight of Native American women left out by original VAWA.

During a visit from White House officials, Valerie Jarrett, Senior Advisor to President Obama, and Chair of the White House Council on Women and Girls, commended Tulalip for all of it’s efforts, both in criminal justice in general and specifically for playing such an impactful role bringing awareness to the plight of Native American women left out by original VAWA.
Photo/Brandi N. Montreuil

By Niki Cleary, Tulalip News

TULALIP, Wash., — “It’s not enough to cry peace, we have to act peace and we have to live peace,” Tulalip Tribal Court’s Chief Judge Theresa Pouley opened a September visit from White House officials with her teachings as a citizen of the Colville Confederated Tribes and as a tribal court judge.

She went on to explain that although talking and planning are necessary to ensure justice, walking the talk is crucial.

“Law and justice is made up of every arm of the tribe,” said Pouley. “Everyone meets once a month and we all pitch in to see what we can do to make the justice system better. A separation of powers doesn’t mean a separation of problems and certainly doesn’t mean a separation of solutions. One of the great things that Tulalip does is collaborate, out of the box, to provide services. That’s the core of the way justice gets done in Indian Country.”

That collaboration, she clarified, along with a history of providing due process beyond the requirements of the law, are just two of the reasons that Tulalip is ready to take over jurisdiction of all cases involving domestic violence. Until now, tribes have had no jurisdiction over domestic violence when one of the parties involved is not a tribal citizen.

“This is a historic moment,” said Pouley. “I want to marvel in the fact that for the first time, tribal courts are given authority over non-tribal [citizens]. We recognize that tribes are in the best position to do it [enforce the Violence Against Women Act], and we can do it better. We’re waiting to be a pilot. We’re ready to go and we can change the face of this community!”

The Violence Against Women Act (VAWA) was originally passed 19 years ago. The re-authorization of the act was delayed by a fight to include provisions protecting Native American women.

President Obama encapsulated the necessity for those provisions during a speech he made while signing the re-authorization.

“Indian Country has some of the highest rates of domestic abuse in America. And one of the reasons is that when Native American women are abused on tribal lands by an attacker who is not Native American, the attacker is immune from prosecution by tribal courts. Well, as soon as I sign this bill that ends.”

Tulalip’s Interim Chief of Police Carlos Echevarria reiterated the importance of tribes having jurisdiction over all domestic violence cases.

“We see up to 75,000 visitors daily,” he pointed out. “We have 13,000 non-member residents, a lot of traffic and a lot of guests. I can’t tell you how frustrating it’s been arresting non-Indians for domestic crimes against members and knowing that nothing was likely to be done.”

Tulalip Vice-Chairwoman Deborah Parker, who has become known nationally as the face of Native women affected by VAWA, put it in even plainer words.

“We shouldn’t have to walk in fear that we’re going to be raped or abused at any age, from infants to our elders. We get these calls daily. Pretty soon, with your help, this will change.”

Although pleased with this expansion of tribal jurisdiction, Echevarria said it can’t be the last step in recognizing tribes rights to police their lands.

“This is a significant achievement to all tribes and another step in creating a safer community,” he said. “We’ll now move on to the next step, full criminal jurisdiction and a reversal of the Oliphant decision.”

Although no decisions or formal announcements came from the day-long tour, Valerie Jarrett, Senior Advisor to President Obama, and Chair of the White House Council on Women and Girls commended Tulalip for all of it’s efforts, both in criminal justice in general and specifically for playing such an impactful role bringing awareness to the plight of Native American women left out by original VAWA. She made a point of thanking Vice-Chairwoman Parker for being willing to relive her painful past, ‘not just one time, but over and over and over again,’ in order to ensure that Native women are protected in the future.

“It’s an exciting time to be here,” said Jarrett. “As we heard from Chief Justice Pouley, you are ready. Now it’s up to our team to step up to the plate.”

Health, Innovation and the Promise of VAWA 2013 in Indian Country

Santa-Fe-Indian-School-for-VAWAValerie Jarrett and Tony West, Indian Country Today Media Network

Senior Advisor Valerie Jarrett speaks to Tulalip Court leaders about the implementation of VAWA 2013 in Indian country. September 5, 2013. (by Charlie Galbraith, Associate Director of Intergovernmental Affairs)

[The morning of September 5], we made our way north from Seattle, past gorgeous waterways, and lush greenery to visit with the Tulalip tribes of western Washington, where we were greeted by Tribal Chairman Mel Sheldon, Vice Chairwoman Deb Parker, and Chief Judge Theresa Pouley. We saw first-hand, a tribal court system which serves to both honor the traditions of its people and to foster a renewed era of tribal self-determination.

The Tulalip Tribes of Washington, like many American Indian tribes, have built a tribal court system that serves the civil needs of their community, holds criminals accountable, and protects the rights of victims and the accused in criminal cases. By engaging the entire spectrum of stakeholders, including judges, the police, public defenders, tribal attorneys, as well as tribal elders, and even offenders in many cases – the system they have put in place is producing impressive results with a unique focus on innovative, restorative, and communal solutions.

Because of the successful 2013 Reauthorization of the Violence Against Women Act, which President Obama signed into law on March 7, 2013, tribal courts and law enforcement will soon be able to exercise the sovereign power to investigate, prosecute, convict, and sentence those who commit acts of domestic violence or dating violence or violate certain protection orders in Indian country, regardless of the defendant’s Indian or non-Indian status. The tribal provisions of this landmark legislation were originally proposed by the Department of Justice in 2011 to address alarming rates of violence against Native women. We believe today, as we did then, that this is not only constitutionally sound law, but it is also a moral prerogative and an essential tool to ensure that non-Indian men who assault Indian women are held accountable for their crimes.

The 2013 VAWA reauthorization might never have happened without the relentless efforts of Native women advocates like Tulalip Tribal Vice Chairwoman Deborah Parker, whose personal courage and dedication to this cause helped carry the day. The Tulalip Tribe was but one example that helped demonstrate to Congress and many others that there are tribal courts prepared to exercise this important authority that was swept away by the Supreme Court’s 1978 Oliphant ruling.

This new law generally takes effect on March 7, 2015, but also authorizes a voluntary pilot project to allow certain tribes to begin exercising this authority sooner.

After a visit to the Tribal Courthouse, we then visited the Tulalip Legacy of Healing Safe House, a domestic violence shelter housed in facilities renovated with federal Recovery Act funds, to provide victims a safe place, and the chance they need to start fresh and rebuild.

And finally, it wouldn’t have been an authentic trip to Tulalip lands and the Pacific Northwest without a traditional salmon luncheon. We joined around 50 tribal members at the Hibulb Cultural Center to learn more about the ancient tribal traditions of the Tulalip people, and of course, to enjoy the region’s most time-honored and delicious delicacy.

We were reminded this week of how much progress is being made by tribal justice systems across the country. These efforts are being led by courageous Native people like the Tulalip who are dedicated to making the promise of the VAWA 2013 Reauthorization into a reality for generations of Native American women.

A White House Blog Post. Valerie Jarrett is the Senior Advisor to the President and Tony West is the U.S. Associate Attorney General

 

Read more at http://indiancountrytodaymedianetwork.com/2013/09/08/health-innovation-and-promise-vawa-2013-indian-country-151193

In challenging tribal court, Alaska state goes to bat for man convicted of beating his wife

August 25, 2013 Anchorage Daily News

By RICHARD MAUER — rmauer@adn.com

 

Earlier this month, when Edward Parks was convicted in Fairbanks of the kidnapping and brutal assault of his girlfriend, the prosecutor told a Fairbanks reporter it was a victory in the “state’s larger war against domestic violence.”

But three months earlier, with Parks sitting in jail awaiting trial for beating Bessie Stearman so badly he broke three of her ribs and collapsed one of her lungs, the Parnell administration intervened on his behalf before the Alaska Supreme Court. In a case that’s still pending, the state government is seeking to void a tribal court order declaring him an unfit parent.

For Natalie Landreth, a Native-rights attorney representing the adoptive parents of one of Parks’ children, the state’s move was an outrageous example of attaching greater importance to its political fight against tribal rights than the protection of the child, who is now 5.

“Why on earth would you step in to defend someone’s right to access a child when he has just been convicted of almost murdering the mother?” Landreth said.

Attorney General Michael Geraghty said the state is intervening on Parks’ side to protect Parks’ constitutional rights, not get his child back.

“I guess I can understand to a lay person how it might appear that we’re supporting Mr. Parks, but I don’t think that’s the case. We’re supporting his due process rights as we would with any other Alaskan,” Geraghty said. “That doesn’t mean we think he’s a good guy, that he should be a parent or that he’s entitled to custody of his kids.”

Parks has his own attorney to defend his rights and the state’s entry into the case on his behalf was optional, Geraghty acknowledged, but he said the state chose to file its own brief in the Alaska Supreme Court because the case was bigger than Parks.

At issue is whether a small tribal court in the village of Minto, 130 road miles west of Fairbanks, could strip Parks of his parental rights to one of his daughters, named “S.P.” in legal filings, and approve her adoption by Jeff Simmonds, the cousin of the child’s mother, and Simmonds’ wife Rozella. According to court filings, S.P. is a member of the Minto tribe, as is her mother, Stearman, the victim of Parks’ rage. Jeff Simmonds is also a Minto tribe member, while Rozella Simmonds is a Zuni Pueblo Indian from the Southwest.

One of Parks’ parents is Alaska Native and Parks himself is an enrolled member of the tribe at Stevens Village, about 60 miles north of Minto on the Yukon River, according to the court filings.

To the state, that meant that the Minto court was trying to enforce its order against a nonmember of its tribe. The Minto court’s declaration on May 7, 2009, that Parks was an unfit parent was improperly reached, the state said in its brief to the Alaska Supreme Court, filed in April.

The proper venue for that question is before a state judge in Fairbanks, not the elders of the Minto court, the state said.

Landreth, from the Native American Rights Fund office in Anchorage, said the state is overreaching and ignoring the years of legal precedent since Congress passed the Indian Child Welfare Act in 1978.

 

‘sovereignty issues are current issues’

 

Alaska, like other Western states with significant Native American populations, has had a contentious history with tribal rights. The federal government recognizes more than 200 tribes in Alaska — most of them small, rural villages — and they form parallel governments to the municipalities under state law, and the state itself — at least for duties and rights granted by Congress. Native rights are based in the U.S. Constitution and in aboriginal-rights doctrine subscribed to by the United States. Tensions over tribal sovereignty have grown or subsided, depending on who was governor and what issues were hot at the time.

“Certainly tribal sovereignty issues are current issues, they’re topical issues, I agree with that,” Geraghty said. But the decision to intervene on Parks’ behalf against the Minto tribal court was about Parks’ legal rights, not an effort by the state to restrict tribes.

Landreth doesn’t see it that way. By declaring that Parks shouldn’t be bound by the tribal court even though his daughter, his daughter’s mother, and one of the adopted parents are tribal members, the state is trying to make new, impractical law, she said.

“The legal term for that kind of argument is ‘Just Silly,'” Landreth said. “Tribes, especially in Alaska, are so small that nobody’s going to marry someone in their own tribe because they’re mostly related within two degrees of blood.”

If both parents have to be members of the same tribe for a tribal court to have jurisdiction under the Indian Child Welfare Act, that would foreclose a decision in almost every case except those involving the largest tribes in the state, like the Tlingit-Haida people, she said.

 

QUESTIONS OF JURISDICTION

 

S.P. was born in Fairbanks in 2007. At the time, Bessie Stearman, her mother, was on probation for drug charges, according to the filings with the Supreme Court. By the following January, Parks had been jailed on an assault charge for breaking Stearman’s finger “in a dispute relating to the trimming of S.P.’s fingernails.” The attack came to the attention of a tribal social worker.

In May 2008, with Parks working on the North Slope, Stearman was jailed for probation violations. She asked Rozella Simmonds to care for S.P.

Parks found out, quit his job, and returned to Fairbanks. He learned that the Minto tribal court had granted temporary, emergency custody to the Simmondses, and agreed to that arrangement at least for the time being, though he preferred placing the baby with his mother instead.

Over the course of the next year, the tribe held more hearings and set up a visitation schedule for S.P. with Parks and Stearman. The couple continued in their relationship and eventually had three more children, including a set of twins.

“Yeah, she went back to him,” said assistant District Attorney Andrew Baldock. “As domestic violence cases go, it’s not unusual for that sort of thing to happen.”

Parks got a lawyer, Don Mitchell, an Anchorage attorney who has written extensively about Native law — and who has a problem with tribes as legal entities in Alaska.

Parks demanded that S.P. be returned to him. He accused the tribe of kidnapping her. On May 5, 2009, he “abducted” S.P. from the Simmondses, according to Landreth’s petition. The Alaska Office of Children’s Services, with the help of Fairbanks police, returned S.P. “to her tribal foster home,” Landreth wrote.

Two days later, the tribal court convened again, this time in a hearing to terminate the parental rights of Stearman and Parks. The court met in Minto. Stearman, Parks, Parks’ mother and Mitchell participated over a speakerphone in the Tanana Chiefs Conference office in Fairbanks.

Parks told the court it had no jurisdiction over him. Mitchell wanted to speak on Parks’ behalf, but was told by a “court facilitator” — a clerk of sorts — that lawyers are only allowed to advise their clients and submit written documents, not make oral arguments.

The court allowed the interested parties to speak, went into closed session, and returned with its verdict: S.P.’s parents were unable to provide a “violence-free environment” and were not fit as parents. The child would continue to live with Stearman’s cousin and his wife.

 

LEGAL PROTECTIONS

 

Parks and Stearman filed suit in Superior Court in Fairbanks on Sept. 17, 2009, trying to get S.P. back. Mitchell originally represented him. The judge, Paul Lyle, refused Landreth’s request to dismiss the case, ruling that Parks was denied due process by the Minto court.

While the case was kicking back and forth between Lyle’s court and the Alaska Supreme Court, Parks lost control again, this time apparently worse than at any other time.

On Dec. 18, 2011, according to the Fairbanks News-Miner, Parks took Stearman to an area near South Cushman Street in Fairbanks and began beating her. He brought her home, tied her with a belt, and kicked and choked her some more. Parks held her for two days, refusing to take her to the hospital until she promised not to call police.

“There were some very small children that were in the residence,” Baldock, the prosecutor, said in a telephone interview. “She was not physically able to go to the hospital — she had a collapsed lung and a couple broken ribs and the children were just kept in the other room away from her.”

But not S.P. She was safe with Jeff and Rozella Simmonds.

Parks was arrested. On Feb. 9, 2012, a Fairbanks grand jury handed up a seven-count indictment that included two kidnapping charges. Another count was for witness tampering. From his jail cell, Parks continued to try to get Stearman to not testify against him, Baldock said. Parks also used delaying tactics to put off the trial, apparently believing Stearman would change her mind, Baldock said.

It didn’t happen. She testified against him. After a one-week trial, the News-Miner reported, he was convicted Aug. 12 on all counts.

Baldock said he was carrying out state policy to aggressively pursue domestic violence cases under Gov. Sean Parnell and Attorney General Geraghty’s “Choose Respect” campaign.

“I can’t speak anything about the civil stuff,” Baldock said, referring to the state’s role in the Minto tribal case, “but certainly from the attorney general on down, there’s a real impetus in making sure that these kind of cases are handled appropriately.”

The civil lawsuit had ground along as Parks waited for trial in his jail cell in Fairbanks. The state intervened on his behalf April 26.

“Having the government in your corner is certainly a useful situation for any litigant,” said Mitchell, Parks’ attorney. “I viewed it as a helpful development.”

Mitchell had to drop out of the case because he had represented both Stearman and Parks, and they had become adversaries in the criminal case. Each now has their own attorney in the civil case. He still believes it was right to pursue the lawsuit.

“At the heart of this problem is the fact that every single person who lives in a village is a citizen of the state of Alaska who is entitled to have access to the same procedural and substantive protections as any other citizen of Alaska, and that has been thrown out the window in the political enthusiasm for the invention of Indian tribes in Alaska and the further invention of tribal courts,” Mitchell said.

But Landreth said the tribal court got it right years before.

“Respondent now has 43 criminal entries on Court View,” she wrote in 2012 in her second petition to the Alaska Supreme Court, referring to Parks’ record in the state’s on-line court database. “As this case has progressed, the wisdom of the Minto Tribal Court’s decision to place S.P. in the Petitioners’ (Simmondses) stable home has become even more apparent.”

The matter is pending in the Alaska state courts. Parks is due to be sentenced in February.

 

Reach Richard Mauer at rmauer@adn.com or 257-4345.

Tribal court, Wyandotte Nation

To view video click image

To view video, click image.

By Jennifer Penate

May 23, 2013 on fourstateshomepage.com

WYANDOTTE, OK.— Wyandotte Nation is now holding criminal court every month.

“Establishment of tribal courts is essential to obtaining and maintaining tribal sovereignty,” said Jon Douthitt, Judge.

Jon Douthitt is the presiding judge. This is the second court he’s helped establish in the four states, following Quapaw. He says there’s one main challenge.

“Anything you do without proper jurisdiction is subject of being voided or attacked,” said Douthitt.

“I think that’s one of the complicated and convoluted issues of Indian law, is what is jurisdiction,” said Geri Wisner, Prosecutor.

Geri Wisner is the court’s prosecutor. She will only handle tribal code violations committed by a Native Americans.

“I will not be forwarding anything to the state unless it was a non-Indian suspect on a crime,” said Wisner.

However, the federal government will have jurisdiction over major crimes like murders. Wyandotte Nation Chief Billy Friend says having this court in place is momentous, allowing the community to prosper.

“Just gives us the opportunity, as far as collecting fines and fees instead of them going to the state or county government, it actually comes back to the tribal government,” said Chief Billy Friend, Wyandotte.

Chief Friend’s ultimate goal is to establish an appellate and supreme court. Wisner says her mission is to talk to elders about how issues were handled traditionally. The goal is find a way to help offenders rather than issuing them fines or jail time.

For tribes, prosecuting non-native abusers still a challenge

“The Confederated Tribes of the Umatilla Indian Reservation in Oregon could be the first in Indian Country to assert jurisdiction over non-Indians who commit domestic violence offenses.”
 
Originally published in PBS Frontline
March 25, 2013, 4:17 pm ET
By Sarah Childress
Follow @sarah_childress

 When President Barack Obama signed the Violence Against Women Act earlier this month, he spoke of cracking down on domestic abuse in Indian Country, where the violent crime rate is more than 2.5 times the national rate and impunity is deeply entrenched.

“One of the reasons is that when Native American women are abused on tribal lands by an attacker who is not Native American, the attacker is immune from prosecution by tribal courts,” Obama said.

“Well, as soon as I sign this bill, that ends,” he said. “That ends.”

But for most tribes, closing that loophole against abusers will take time. For some, it may not happen at all.

The law has two provisions that already apply nationwide. Tribal governments can now enforce protection orders filed in state or federal court. The law also imposes stiffer penalties on anyone who inflicts substantial bodily injury on a partner, such as strangling or suffocation.

It’s the law’s controversial provision of trying non-Natives in Native court systems — one that initially held up its passage — that poses the challenge.

Tribal justice systems vary in their capabilities. On some reservations, attorneys and judges aren’t required to have a law degree. Defense attorneys may not be provided. Tribal law enforcement officers often don’t have the proper training to handle major crimes cases.

At the moment, no tribe has a system currently capable of enforcing the new law as it’s written. The law requires that tribes provide non-Native defendants with the same rights they would have in U.S. courts, including a right to an attorney, trained judges, and trial by their peers, meaning the court must at least attempt to include non-Indians in its jury pool.

“It’s Going to Start Small”

Only about 100 of the 566 federally recognized are likely to be able or interested in implementing the new protections over the next five years, according to John Dossett, the general counsel for the National Congress of American Indians, a D.C.-based group that represents the interests of Native Americans.

Of those, only 10 to 20 are likely to come into compliance in the next two years.

Many tribes are just too small to have their own justice systems and leave law enforcement to the state and federal authorities entirely. Others have remote reservations with few non-Native residents, so that prosecutorial power isn’t as much of a priority.

As always, there’s also the question of money. The law provides $5 million a year for five years — a total of $25 million — to help tribes strengthen their justice systems. That’s assuming Congress allocates the funding, which could be jeopardized by the sequester.

“The tribal criminal jurisdiction is more of a long-term project, and I think everyone understands that — I hope they do,” said Sam Hirsch, the deputy associate attorney general at the Justice Department’s Office of Tribal Justice.

Hirsch said the office will consult with the tribes before drawing up a written policy outlining the next steps, and work with those who want to take advantage of the new provision. The office will also help the tribes find the funding they need, he said.

“It’s going to start small, and it’s going to spread and build,” he said.

A Symbolic Victory

Even if only a few tribes enforce it, the law is important as a symbolic victory, said Sarah Deer, a professor at the William Mitchell College of Law in Minnesota and a tribal justice expert.

“It provides more options to tribes, and that’s what I think sovereignty is about, being able to make decisions that are best for your community,” she said. “The less federal intrusion we have in sovereignty, the better off Indian people are going to be.”

Tribal advocates pushed for this new legislation in part because without it, domestic violence crimes were left to the federal government to prosecute — which often didn’t happen.

The federal government declined to prosecute 50 percent of the cases in Indian country referred to U.S. attorneys from 2005 to 2009, according to a 2010 Government Accountability Report (pdf). That rate was higher for violent crimes, at about 52 percent. For sexual abuse, the rate was 67 percent.

Federal officials have said the high declination rates occur in part because evidence is difficult to come by, especially in assault cases, and witnesses are often reluctant or unwilling to testify.

According to a 2010 law, the Justice Department is required to report its declination rates for cases on Native American reservations to Congress, but has yet to report rates for recent years. A Justice Department spokesman said it would be filing a report to Congress with that information in April.

One federal prosecutor told FRONTLINE that the declination number for major crimes has since gone down, in part because cooperation between tribes and federal officials has improved, making it easier to gather the evidence needed to try and win cases. But he declined to provide specific figures.

One Tribe on the Fast-Track

For the most part, justice on the reservation for the Confederated Tribes of Umatilla in northeastern Oregon looks a lot like justice elsewhere in America.

Tribal law enforcement officers receive the same training as state police, and the judge has a law degree. Defense attorneys are provided for those who ask for them, and the tribe is able to prosecute major felonies. Those who are convicted serve their time in the county jail.

But when it comes to domestic violence, it’s almost as if the system doesn’t exist.

About half of the 3,000 people living on or near the Umatilla reservation are non-Native, many of them married to women from one of three tribes: the Cayuse, Umatilla and Walla Walla. Tribal officials have no jurisdiction over non-Native men on the reservation.

Women there often don’t even bother to report abuse, said Brent Leonhard, an attorney for the Confederated Tribes of Umatilla’s Office of Legal Counsel.

“There’s real reluctance because of the belief — which was correct — was that it wouldn’t be prosecuted, which just makes it more dangerous for the victim,” he said.

Leonhard said the lack of domestic violence prosecutions had led some to buy into the false belief that abuse doesn’t even exist on the reservation, further isolating victims and emboldening their abusers.

The law could change that.

At Umatilla, it’s a practical matter of updating the tribal code to allow the tribes’ courts to prosecute non-Indians. Under the Tribal Law and Order Act, passed in 2010, tribes were allowed to prosecute some felonies, and even to impose jail sentences of up to three years. Most tribes didn’t use the new power because their systems weren’t strong enough, and they lacked the funds to upgrade them.

But for the communities that did, like the Umatilla, their legal codes are current enough that they won’t need to make as many adjustments, Leonhard said.

Leonhard hopes to have the provisions in place by the end of the year. Then, he’ll petition the attorney general to expedite the process to begin prosecutions of non-Native abusers.

“I think, and I hope, it will make a very large difference,” he said.

 

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