Tribal State Federal Judicial Forum addresses difficult jurisdictional overlap issues, challenges

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By Jason Searle
U-M?Law

The Law School’s Native American Law Student Association recently hosted a panel of judges from the Michigan Tribal State Federal Judicial Forum (the Forum) for a frank discussion of what works and what doesn’t when it comes to the complex tangle of jurisdictions in the state. Sitting on the panel were Chief Judge Allie Greenleaf Maldonado of the Little Traverse Bay Bands of Odawa Indians Tribal Court; Washtenaw County Circuit Court Judge Timothy Connors; and Michigan Supreme Court Justice Bridget Mary McCormack. They discussed the challenges and successes of the forum, which seeks to address difficult issues of overlapping jurisdiction between tribal, state, and federal judiciaries in cases ranging from child welfare and criminal matters to restoration of native fish species.
The forum, established through a Michigan Supreme Court order in 2014, consists of the chief tribal judges of each of Michigan’s federally recognized tribes (or their designees), an equal number of state court judges, three federal representatives, and a Michigan Supreme Court liaison (which has been McCormack since the forum’s inception). The forum was preceded by the Michigan Indian Tribal Court—State Trial Court Forum, which was established in 1992 to provide for state court recognition and enforcement of tribal court judgments. While the struggle to get all state courts to extend due-deference to tribal courts still exists, the panelists explained that they are greatly satisfied with how much progress has been made since 1992.

Increasing the public’s and state courts’ awareness of the existence and role of tribal courts is critical, the panelists noted.

“Michigan is home to 12 federally recognized tribes,” McCormack said. “These tribal courts, like their state and federal counterparts, work tirelessly to ensure the proper administration of justice within their jurisdiction … and to serve the children, families, and communities whose welfare depends on them.”

One especially important area for interjurisdictional cooperation has been in child welfare cases, panelists said while discussing the Indian Child Welfare Act (ICWA) and its Michigan counterpart, the Michigan Indian Family Preservation Act (MIFPA).

So that students could understand the need for the legislation, Maldonado, who wrote the first draft of the MIFPA, provided historical background. Toward the end of the 19th century until the early 1970s, the United States established and maintained Indian boarding schools as a centerpiece of the country’s policy to assimilate American Indians into mainstream society. Indian children were sent to boarding schools—often after being forcibly removed from their homes—so they could be groomed to be more like Christian whites. Maldonado’s own relatives were taken away to boarding schools.

“My mother was taught to hate her tribal heritage.” she said. “Boarding school officials forcibly cut the children’s hair and forbade speaking of their Native languages. Officials put soap in the mouths of Indian children who spoke Native languages.”

These abuses, which also included beating children for practicing Native religions, were just the federally approved ones. Other abuses, such as sexual assault, were the consequence of poor federal oversight and, unfortunately, were common; it is estimated that 55 percent of Native American children who went to boarding schools suffered from sexual assault. Finally, in 1978, Congress passed the ICWA. The Michigan Legislature passed the MIFPA, which provides greater protections than the ICWA, just in 2012. From its beginning, the forum has been committed to upholding the principles embodied by these laws and has sought to ensure that all Michigan courts comply with them.

The forum also has increased cooperation between courts on criminal matters, and Maldonado explained the special importance of this to tribes.

“We can’t afford to throw away our community members who make mistakes,” she said, noting that her Tribe has just over 4,000 members. “We have to believe that if we treat people with care, love, and respect, there is hope that if they are ready, they can heal.”
Panelists agreed that tribal-community support is a key to rehabilitation of Native Americans who violate criminal laws and said that, slowly but surely, state judges are beginning to understand this and afford respect for tribal courts’ jurisdiction over tribal-member criminal offenders.

“The oft-repeated claim that we can accomplish more working together than alone might be trite if not so plainly true,” McCormack said.
 

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