State-Tribal Court Collaboration and Lessons from Tribal Courts Aaron Arnold & Brett Taylor Center for Court Innovation – Tribal Justice Exchange

Center for Court Innovation

The Center for Court Innovation Center for Court Innovation

Demonstration Projects

Goals: • Reduce Crime • Aid Victims

Technical Assistance

• Strengthen Communities • Improve Public Trust in Justice

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• Demonstration Projects Field-testing new “problem-solving” ideas.

• Documentation Tracking both process and impacts of experiments.

• Replication Providing technical assistance to help other jurisdictions innovate.

• Institutionalization Attempting to “go to scale” with innovation.

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What is problem-solving justice? An approach to justice that: • Seeks to do more than process cases. • Deals with underlying problems that bring people to court. • Uses alternative responses. • Emphasizes collaboration with the community. • Builds on community strengths. Center for Court Innovation

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Demonstration Projects • • • • • •

Community Court Drug Court Domestic Violence Court Reentry Court Youth Court Mental Health Court

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Tribal Justice Exchange Training and technical assistance State-tribal court collaboration Traditional/indigenous justice Center for Court Innovation

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Tribal Justice Exchange Projects • • • •

Peacemaking Initiative On-site Technical Assistance Publications Conference Presentations

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State-Tribal Collaboration Benefits of collaboration • • • •

Reduce jurisdictional confusion End forum shopping Improve public safety Promote mutual understanding

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“A good test of whether an appropriate relationship exists is whether each side understands the potential for learning from the other.” Hon. Michael Cavanagh Michigan Supreme Court

State-Tribal Collaboration Examples of collaboration • • • • •

Joint jurisdiction courts (Minnesota) Inter-jurisdictional court referrals (New York) Forum selection protocols (Wisconsin) Cross training and cooperation (Montana) State-tribal court forums (Many)

Joint Jurisdiction Courts Minnesota Leech Lake Wellness Courts • Leech Lake/Cass County  Video link between courts  Defendants can appear in either court

• Leech Lake/Itasca County  Judges sit together on Itasca County bench

Inter-Jurisdictional Court Referrals New York Town of Bombay/St. Regis Mohawk Tribe • Defendants charged in town court. • Town court refers defendants to tribal Healing to Wellness Court for post-plea treatment and supervision.

Forum Selection Protocols Wisconsin 10th Judicial District/Four Chippewa Tribes • • • •

Wisconsin has full faith and credit statute But no statue for resolving jurisdictional disputes Teague case led to state-tribal judges meetings And the creation of the TEAGUE PROTOCOL

Teague Protocol 1. Mandatory disclosure of related cases 2. Stay of both cases 3. “Allocation of Jurisdiction” hearing before both judges 4. Judges decide jurisdiction based on 9 factors (including involvement of tribal laws, tribal culture, tribal territory, tribal membership)

Cross Training and Cooperation Montana/Confederated Salish & Kootenai Tribes • • • •

Cultural training for state defense attorneys Information sharing on common clients Daily jail roster State probation referrals to tribal programs

State-Tribal Court Forums New York • Full faith and credit protocol (Oneida Nation)

New Mexico • Domestic violence protective orders

Idaho • Judge’s Bench Book

State-Tribal Court Forums “These forums have improved the delivery of justice by dispelling ignorance and fostering relationships between state and tribal judges. The results show that the application of the law is not a mechanical procedure, but relies on shared human understanding and trust.” Paul Stenzel, Esq. Forest County Potawatomi Tribal Court

State-Tribal Court Forums “For more than 150 years non-Indian residents of the State of Idaho have lived adjacent to the six Indian Tribes of Idaho…it was time we became neighbors, understanding and respecting each other’s customs, lifestyles, and laws.” Hon. Charles McDevitt (ret.) Idaho Supreme Court

Lessons from Tribal Courts Tribal courts are trying state court strategies • • • •

Drug courts (Healing to Wellness Courts) Community courts Coordinated Community Response Teams Community policing

But when do state courts try tribal practices?

Traditional Approaches to Justice • Peacemaking • Sentencing Circles • Elder Panels Ho-Chunk Nation Traditional Courtroom

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Peacemaking • • • •

Non-adversarial Voluntary Led by a respected community member Includes traditional elements (ceremony, circle, talking piece, storytelling) • Not bound by time limits, rules of evidence • Different than mediation

Peacemaking “Mediation is about an issue. Peacemaking is about relationships. If you heal the relationship then people can solve their issues themselves.” Hon. Barbara Smith Chickasaw Nation Supreme Court

Peacemaking Influence on state courts • • • • •

Restorative justice Family group conferencing Community conferencing Community impact panels Sentencing circles

CCI Peacemaking Pilot Project An experiment to test traditional Native American peacemaking in state court setting

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CCI Peacemaking Pilot Project • • • • • • •

Red Hook, Brooklyn 2 Navajo Nation site visits Background research National roundtable discussion Roundtable report Feasibility study Implementation (November 2012)

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CCI Peacemaking Pilot Project Project evaluation • One-on-one interviews with participants • Group interviews with justice system professionals • Impact analysis comparing defendants in peacemaking program with defendants in conventional case processing • Comparison of plea offers with peacemaking outcomes

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Sentencing Circles Post-conviction model • Case adjudicated in formal court system • Sentencing circle handles post-conviction sentencing • Decision typically ratified by the court

Sentencing Circles Yellow Medicine County Circle Sentencing Program • • • • • •

“Voluntary” program Must plead guilty Must waive privacy Decision by consensus Must comply with decision If failure, return to court for sentencing with the benefit of a plea agreement

Elders in the Justice System • Recognizes the wisdom of elders • Allows elders to use storytelling, teaching, and even shaming, to change behavior • Flexible: elder mentoring, one-on-one elder counseling, elder panels

Elders Panel Tulalip Tribal Court Elders Panel • Honored by Washington State Bar Association • Elders volunteer their time • Handles cases involving young, first-time offenders (18-25) with non-violent charges • Charges are dismissed upon successful completion of Elder Panel’s requirements

Tulalip Elders Panel (cont.) Elders Panel can require: • • • • • • • •

regular appearances before the panel letters of apology community service substance abuse treatment and testing mental health evaluations curfews research of family history spiritual activity (not necessarily religious)

Elders Panel Elders panel in state court? • • • •

Empower elders Promote respect Develop youth identity, sense of self Strengthen community ties

Contact Information Aaron Arnold Director, Tribal Justice Exchange Center for Court Innovation Office: (315) 266-4330 Cell: (917) 454-8707 [email protected]

Brett Taylor Deputy Director, Nat’l Technical Assistance Center for Court Innovation Office: (646) 386-4463 Cell: (347) [email protected]

THANK YOU!