Tribal court forum focuses on child welfare

By Lee Dryden
The Daily Record Newswire
 
Increasing awareness of tribal courts and providing training to the legal community on child welfare and domestic violence were among the focuses at the third meeting of the Michigan Tribal State Federal Judicial Forum.

A recent gathering in Sault Ste. Marie during national Native American Heritage Month was the forum’s third meeting since adopting its charter a year ago.

It consists of the chief tribal judges of each of Michigan’s 12 federally-recognized tribes, or their designated alternate judges, and 10 state court judges, who are appointed by the Michigan Supreme Court from among a pool of currently serving or retired Michigan judges or justices, according to a press release from the Michigan Courts. Retired Supreme Court Justice Michael Cavanagh continues to serve as a member.

“We have an amazing forum,” said Chief Judge Allie Greenleaf Maldonado of the Little Traverse Bay Bands of Odawa Indians. “We are partners and support each other and I think we make each other better.”

The forum has added three federal representatives: Federal Magistrate Timothy Greeley, and Assistant U.S. Attorneys Jeff Davis and Hannah Bobee.

Michigan Supreme Court Justice Bridget M. McCormack, the high court’s liaison on tribal issues, said in a statement, “By working together, we can make sure that children and families benefit from a unified and seamless approach that protects their health and welfare.”

The 2014 administrative order creating the forum highlights the importance of continuing strong relations between the courts.

“For purposes of building on the past spirit of cooperation and of creating a dialogue among the state, tribal, and federal judiciaries, the Court recognizes the importance of establishing an ongoing forum that will address working relationships among the court systems and the interaction of state, tribal, and federal court jurisdiction in Michigan,” the Supreme Court order states.

Goals set at the event included increased cooperation among the various courts. The gathering also focused on strategic planning, Indian child welfare and using federal law to prosecute domestic violence crimes in Indian Country.

Maldonado, who co-chairs the forum with Washtenaw County Circuit Court Judge Timothy P. Connors, said teaching judges and prosecutors about tribal law is a priority. In fact, she has told her staff to pull her off the bench if someone calls with a question.

Child welfare

The federal Indian Child Welfare Act (ICWA) of 1978 is aimed at keeping Indian children in the Indian community by giving jurisdiction to tribes. Despite being in effect for nearly 40 years, application of the law is still not uniform – that’s why the Michigan Indian Family Preservation Act was created in 2012. Maldonado said it is easier to follow and results in less litigation.

“It’s about family preservation, first and foremost,” she said.

The ICWA resulted from Indian children being forcibly removed from their homes and placed in non-Indian homes.

Maldonado said Indian children were removed due to abuse and neglect, mostly neglect, which includes substance abuse, unemployment or underemployment, homelessness or near homelessness. In many cases, these issues can be addressed with support and services, she said.

The goal is to keep Indian children in the Indian community, if not immediate families, then with extended families, Maldonado said.

Domestic violence


The Violence Against Women Reauthorization Act of 2013, or “VAWA 2013” recognizes tribes’ inherent power to exercise “special domestic violence criminal jurisdiction” (SDVCJ) over certain defendants, regardless of their Indian or non-Indian status, who commit acts of domestic violence or dating violence or violate certain protection orders in Indian country.

VAWA was created to address the issue of domestic violence — specifically non-Indians assaulting Indians as tribal courts do not have jurisdiction over non-Indians.

“Tribes are able to exercise their sovereign power to investigate, prosecute, convict, and sentence both Indians and non-Indians who assault Indian spouses or dating partners or violate a protection order in Indian country,” according to a description on the U.S. Department of Justice website. “VAWA 2013 also clarifies tribes’ sovereign power to issue and enforce civil protection orders against Indians and non-Indians.”

Tribes’ criminal jurisdiction over non-Indians is limited to domestic violence, dating violence and criminal violations of protection orders. Crimes between two non-Indians or outside of Indian country are generally not covered under the act. Due process rights must be given.

The new law took effect March 7, 2015. Participation is voluntary for tribes and federal authority to prosecute crimes in Indian country doesn’t change.

The Little Traverse Bay Bands of Odawa Indians is the first tribe in Michigan — and among the first in the nation — to adopt VAWA 2013. The structure is in place to prosecute such cases when they occur.

Education is key


Training for stakeholders on domestic violence and child welfare was among the goals set by the forum.

Tribal courts don’t have the caseloads of state courts so they can dig deeper into issues and be more service-oriented, Maldonado said. She gets questions about her credentials and whether the court follows the law.

“I get a lot of questions — the tribal court seems to be shroud in mystery to people,” she said.

The forum has committees that provide resources for training for judges, prosecutors, referees and social workers — anyone who deals with child welfare, Maldonado said.

Federal involvement


Davis, based in the U.S. Attorney’s Western District of Michigan office in Grand Rapids, was appointed to the forum and also serves as the liaison between his office and the 11 federally recognized tribes in the district.

He had already been attending the events based on his interest, but is glad to see federal officials formally included.

“Bringing in the federal court system and federal representatives will help enlarge discussion beyond state and tribal,” Davis said.

Federal courts have a strong relationship with tribes and can serve as a resource, Davis said.

The tribes are approaching VAWA implementation with a measured approach, said Davis, who points out that tribal courts already use due process.
 

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