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Joint Tribal-State Jurisdiction in Family Dependency Cases: A New Model for Better Outcomes

Judge Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court

Summary: The joint tribal-state jurisdiction model can, and should, be considered as a tool for helping to reduce the number of children in out-of-home placement and speeding reunification in family dependency cases.

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Minnesota’s joint tribal-state jurisdiction model has proven very effective in reversing the devastating effects of alcohol and drug abuse among Native Americans and Non-Indians, and shows promise for better outcomes in family dependency cases.

In 2006 the Leech Lake Tribal Court teamed up with Minnesota’s Ninth Judicial District Courts for Cass and Itasca Counties to form unique problem-solving courts that were the first of their kind in the nation.[1] The joint powers agreement that made these courts possible does not determine allocation of jurisdiction between the jurisdictions; rather, it is a commitment to exercise jurisdiction together simultaneously, allowing both systems to bring their unique tools to the table. This groundbreaking model allows the courts to more effectively and efficiently achieve their mutual goals of improving outcomes for families; have fewer children in out-of-home placement; and reverse the tide of disproportionate minority contact and recidivism.

In 2010, the courts’ joint jurisdiction work expanded to juvenile and family cases. Juvenile offenders, both tribal members and non-Indians, now have the option to participate in the Leech Lake Restorative Justice Program.[2] While both jurisdictions remain involved in the case, review hearings are held in tribal court, with supervision services provided by the Cass County Probation Department under a cross-jurisdictional appointment order. The courts have also used a Teague Protocol–type model in family cases, holding joint hearings in some cases.[3]

Joint tribal-state jurisdiction has proven extremely effective, resulting in significant reductions in drug and alcohol use and increased pro-social behaviors for those whose cases were handled jointly. Positive outcomes for participants have included reunifying with family; becoming healthier parents who are more involved with their children; continuing their education; and becoming reliable and valued employees. Addictions are also being addressed, and recent statistics showed that the 42 participants from both joint wellness courts had a combined 10,568 days of documented sobriety. Some female participants have also found the strength to leave abusive relationships and rekindle relationships with family members from whom they have been estranged for many years. And the overwhelming majority of clients cite becoming accountable and responsible citizens as one of the most positive benefits of wellness court participation. In addition, we have seen a marked improvement in recidivism: of all of our graduates from both courts, only one has been arrested and convicted for a new offense.

Without joint jurisdiction, each system would have continued to work in a vacuum, struggling to help people, with badly needed resources and expertise out of reach. Now, the use of resources is maximized and, by exercising jurisdiction jointly, we have the ability to direct participants to a much broader range of resources. The result is a more effective and efficient method of getting the desired outcome.

The best interests of Indian children can be best served when state courts work cooperatively with tribal courts. In fact, key provisions of the Indian Child Welfare Act require that state courts engage tribes through:

  • Early notice to the child’s tribe of the proceedings[4]
  • Timely disclosure to the tribe of all information and documentation about the family[5]
  • Identification of a family member, or other culturally relevant placement, for those children who cannot remain safely at home[6] and development of a culturally-relevant case plan for the family that will enhance the likelihood of successful reunification
  • Reliance on an expert witness familiar with the child rearing practices of the tribe, who will understand, appreciate and respect the totality of the child’s well-being[7]

Joint jurisdiction is transforming the criminal and juvenile justice systems in Minnesota, with State Court Administrator Sue Dosal recently observing that collaboration between state courts and tribal courts is “essential to the effective administration of justice.”[8] Joint jurisdiction has also become a national model that has been called “a remarkable alliance of justice systems” the benefits of which “are so vast and too significant for other jurisdictions to ignore.”[9]

Judge Eugene White-Fish, former president of the National American Indian Court Judges Association, has observed that “competition between tribes and states is mutually destructive, wastes taxpayer dollars, impedes economic development, and is based on racism and self-defeatism.”[10] In these times of shrinking financial and human resources, this new roadmap provides an essential direction that helps achieve better results and reverses the effects of drug and alcohol abuse and historical trauma that have devastated tribal communities for so long.

Launching tribal-state collaboration is not as difficult as it may seem. The process is based upon establishing relationships and fostering communication, with the key to success being a willingness to focus on common goals and problems experienced by both jurisdictions. And resources and guidance are available for those willing to explore this new frontier of jurisprudence.[11]

Minnesota’s ground breaking work in tribal-state collaboration has certainly proved worth the effort, as much better outcomes are being achieved across all systems. The joint tribal-state jurisdiction model can, and should, be considered as a tool for helping to reduce the number of children in out-of-home placement and speeding reunification in family dependency cases.

 


 

[1] See, Korey Wahwassuck, “The New Face of Justice: Joint Tribal-State Jurisdiction,” 47 Washburn L.J. 733 (2008).

[2] See Minn. Stat. § 609.092 (2009). Under this new law, the prosecutor must maintain a list of approved restorative justice programs, and then refer many first-time juvenile offenders to one of these programs. The law also contains a provision mandating a preference for restorative justice programs that are “culturally specific” to the offender, assuming that such a program is on the list of approved programs.

[3] See “Tribal/State Protocol for the Judicial Allocation of Jurisdiction Between the Four Chippewa Tribes of Northern Wisconsin and the Tenth Judicial District of Wisconsin,” Dec. 7, 2001, available at http://www.tribal-institute.org/2004/handouts/Closing-Tribal%20Perspective%20-%%20David%20Raasch-State%20Tribal%20Courts%20Work%20to%20Builld%20-%20Handouts.pdf.

[4] 25 U.S.C. §1912(a).

[5] 25 U.S.C. §1912(d).

[6] 25 U.S.C. §1915.

[7] 25 U.S.C. §1912(e).

[8] See, Korey Wahwassuck, John P. Smith, and John R. Hawkinson, “Building a Legacy of Hope: Perspectives on Joint Tribal-State Jurisdiction,” 36 W. Mitchell L.R. 2, (2010) at p. 893-4.

[9] See, Christine Folsom-Smith, Walking on Common Ground: Tribal-State-Federal Justice System Relationships, at p. 14 (A Publication of the National Tribal Judicial Center, National Judicial College).

[10] See, FN 3 at p. 888.

[11] See, for example, “The New Face of Justice: Joint Tribal-State Jurisdiction,” FN 1 at p. 750-53.

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