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National American Indian Court Judges Association
Prepare Statement of Jill E. Shibles

President of the National American Indian Court Judges Association
Submitted to the United States Senate

COMMITTEE ON INDIAN AFFAIRS
Tribal Justice Issues Hearing

June 3, 1998

Introduction

Chairman Campbell, Vice Chairman Inouye and distinguished members of the Committee, my name is Jill E. Shibles. I am a member of the Penobscot Nation of Maine, I am the President of the National American Indian Court Judges Association and serve as Chief Judge of the Mashantucket Pequot Tribal Court. Thank you for the invitation to address tribal justice needs. I am here today to urge you to support the Indian Country Law Enforcement Initiative, especially as it pertains to tribal courts, and to encourage the Committee to take steps to seek the implementation and funding of the Tribal Justice Act.

Importance of Tribal Courts

"Tribal courts constitute the frontline tribal institutions that most often confront issues of self-determination and sovereignty, while at the same time they are charged with providing reliable and equitable adjudication in the many and increasingly diverse matters that come before them. In addition, they constitute a key tribal entity for advancing and protecting the rights of self-government.... Tribal courts are of growing significance in Indian Country." (Professor of Law Frank Pommersheim, Braid of Feathers: American Indian Law and Contemporary Tribal Law, p. 57). Tribal justice systems are the primary and most appropriate institutions for maintaining order in tribal communities. Attorney General Janet Reno acknowledged that "With adequate resources and training, they are most capable of crime prevention and peacekeeping." ("A Federal Commitment to Tribal justice Systems, 79 Judicature No. 7, November/December 1995, p. 114). It is her view that "Fulfilling the federal government's trust responsibility to Indian nations means not only adequate federal law enforcement in Indian Country, but enhancement of tribal justice systems as well." Id.

Tribal courts agonize over the very same issues state and federal courts confront in the criminal context, such as, child sexual abuse, alcohol and substance abuse, gang violence and violence against women. Tribal courts, however, while striving to address these complex issues with far fewer financial resources than their federal and state counterparts, must also "strive to respond competently and creatively to federal and state pressures coming from the outside, and to cultural values and imperatives from within." (Pommersheim, "Tribal Courts: Providers of Justice and Protectors of Sovereignty," 79 Judicature No. 7, November/December 1995, p. 111). Judicial training that addresses the present imperatives posed by the public safety crisis in Indian Country, while also being culturally sensitive, is essential if tribal courts are to be effective in deterring crime within their communities.

There is no federally supported institution to provide on-going, accessible tribal judicial training, similar the Federal judicial Center, the National Judicial College or the National Center for State Courts. Even though the National American Indian Court Judges Association annually sponsors the National Tribal Judicial Conference, the three day conference cannot provide the in-depth extensive judicial training necessary to make tribal justice systems strong and effective arms of tribal government. Other judicial training's are offered by such Indian organizations as the National Indian Justice Center, but these training's are sporadic because the Native organizations cannot afford to offer a full tribal judicial curriculum on an on-going basis. Both the Indian Country Law Enforcement Initiative and the Indian Tribal Justice Act, if fully implemented and funded, have the potential to address this critical and chronic need of tribal judges and court personnel.

Inadequate Funding of Tribal Justice Systems

There is no question that tribal justice systems are, and historically have been, underfunded. The 1991 United States Civil Rights Commission found that "the failure of the United States Government to provide proper funding for the operation of tribal judicial systems ... has continued for more than 20 years." The Indian Civil Rights Act: A Report of the United States Civil Rights Commission, June 1991, p. 71. The Commission also noted that"[f]unding for tribal judicial systems maybe further hampered in some instances by the pressures of competing priorities within a tribe." Moreover, the Commission opined that "If the United States Government is to live up to its trust obligations, it must assist tribal governments in their development. . . " Seven years ago, the Commission "strongly supported the pending and proposed congressional initiatives to authorize funding of tribal courts in an amount equal to that of an equivalent State court" and was "hopeful that this increased funding will allow for much needed increases in salaries for judges, the retention of law clerks for tribal judges, the funding of public defenders/defense counsel, and increased access to legal authorities."

As indicated by the Civil Rights Commission, the critical financial need of tribal courts has been well documented and ultimately lead to the 1993 passage of the Indian Tribal Justice Act, 25 U.S.C. �3601 et seq. (PL 103-176) [hereinafter "Act"]. Congress found that "[T]ribal justice systems are an essential part of tribal governments and serve as important forums for ensuring public health, safety and the political integrity of tribal governments." 25 U.S.C. �3601(5). Affirming the findings of the Civil Rights Commission, Congress further found that "tribal justice systems are inadequately funded, and the lack of adequate funding impairs their operation." 25 U.S.C. �3601(8). In order to remedy this lack of funding, the Act authorized for appropriation base funding support for tribal justice systems in the amount of $50,000,000 for each of the fiscal years 1994 through 2000. 25 U.S.C. �3621 (b). An additional $500,000 for each of the same fiscal years was authorized to be appropriated for the administration of Tribal Judicial Conferences for the "development, enhancement and continuing operation of tribal justice systems . . 25 U.S.C. �3614.

Five years after the Act was enacted, how much funding has been appropriated? None. Not a single dollar was even requested under the Act for fiscal years 1994, 1995, 1997, or 1998. Only minimal funds of $5 million were requested for fiscal year 1996. Yet, even these minimal funds were deleted by the House Appropriations Committee with the consent of the Bureau of Indian Affairs ("BLA,"). Even more appalling than the lack of appropriations under the Act is the fact that BIA funding for tribal courts has actually decreased following the enactment of the Act--due to the elimination of the Special Tribal Courts Fund.

Bureau of Indian Affairs Tribal Court Funding

This Committee has recognized the obvious need for increased tribal court funding. As Senator John McCain stated on July 21, 1993 on the Senate floor, "The amount of funding in the [the Indian Tribal Justice Act] is a conservative authorization given the overwhelming need for resources in these court systems." On February 18, 1994 Senator McCain and Representative Bill Richardson (the original sponsors of the Act) wrote then Assistant Secretary of Indian Affairs Ada Deer requesting prompt implementation of the Indian Tribal Justice Act. It took Ms. Deer two months to respond contending that efforts to implement the Act would "strain both available resources and staff." Senator McCain and Representative Richardson followed up with a May 25, 1994 letter pointing out to the Assistant Secretary that the Act made the establishment of the Office of Tribal Justice Support mandatory and that they It expect the Department to comply with both the letter and spirit of the Act." To date, the Office still does not exist. We tribal judges also expected the Department to comply with the letter and spirit of the Act, yet the lack of funding requests and failure to comply with almost all other provisions of the Act bears witness to the fruitlessness of such an expectation. With the change of leadership to Assistant Secretary Kevin Gover, it is our fervent hope that now the BIA will affirmatively shoulder its mandates under the Act and that Congress will finally appropriate the funds promised to tribal justice systems. We respectfully ask this Committee, which was so instrumental in bringing the needs of tribal justice systems to the attention of the full Congress, to insist on the long overdue implementation and funding of the Act's provisions.

BIA-DOJ Indian Country Law Enforcement Initiative

The Final Report of the Executive Committee for Indian Country Law Enforcement Improvements documents the "stark contrast between public safety in Indian Country and the rest of the United States." (Final Report, p. 4.) "While law enforcement resources have been increased and deployed throughout the United States, BIA resources actually have been reduced in Indian Country during the past few years." $182 million is requested to fund the Joint BIA-DOJ Law Enforcement Initiative proposal to improve law enforcement in Indian Country. It is axiomatic that "as a consequence of improvements to law enforcement services, a corresponding increase in funds is needed for judicial services, especially tribal courts." (Final Report, p. 8).

Indian Tribal Court Program

The Initiative includes $10 million to establish the Department of Justice Indian Tribal Court Program. We urge the Committee to support the establishment and funding of the Tribal Court Program which will finally start to assist in the development, enhancement and continued operation of tribal judicial systems. The BIA's request for $11.1 million for FY 99 to aid tribal courts must be supported as well. While $21.1 million falls far short of the $50 million promised by the Tribal Justice Act, the Initiative will fail without it. Without well-staffed, competent tribal judiciaries to handle the influx of the new criminal prosecutions flowing from the Law Enforcement Initiative, the goal of providing to 1.4 million Native Americans who live on or near Indian lands the same "protection of their basic rights, a sense of justice, and freedom from fear" enjoyed by Americans at large, will not be attained. (Final Report, p. 4).

Drug Testing and Intervention Program

During my work with the Penobscot, Passamaquoddy and Mashantucket Pequot Tribal Courts (the latter two as Chief Judge), fully 85 to 90% of all criminal and child protection cases involved the destructive use of alcohol or abuse of illegal substances. While tribal judges are highly aware of the toxic effects of alcohol and other substance abuse and can competently adjudicate offenders, often the judge has few, if any tools, with which to effectuate a sentence leading to sobriety and rehabilitation. Even if the tribal judge had an adequate detention facility, and more importantly the funds with which to pay for the costs of the defendant's incarceration, tribal judges by and large, do not believe incarceration without treatment will effectuate any change in the defendant's abusive behavior.

Rather, tribal judges are seeking intermediate sanctions and access for defendants to substance abuse treatment programs. The Mashantucket Pequot Tribal Nation has established the Pre-Trial Intervention ["PTI"] Program that has proved to be highly effective in assisting defendants struggling with alcohol and substance abuse. The PTI Program requires the defendant to agree to complete a court-approved rehabilitative plan proposed by a commission of tribal elders, a probation officer-like program director and the tribal prosecutor in order to avoid a criminal conviction. In the four year history of the PTI program, the program participants have demonstrated a recidivism rate of 0%. Unfortunately, most tribes do not have the resources or personnel to fund and operate such a community-based rehabilitative program. For this reason, the Drug Testing and Intervention Program is a critical funding need in Indian Country.

At Risk Children's Grant Program

"See your sons and daughters: they are your future," counsel our Oneida brothers and sisters. The present crisis Indian Country faces with regard to juvenile crime, and in particular, gang violence must be addressed immediately if the citizens of Indian Country are to be safe and young tribal members are to become our tribal leaders of tomorrow. The Final Report contains shocking examples of the severely violent acts of Indian juvenile gangs. (Final Report, Appendix, Tab A, p. 1). Gang violence is a particularly complex issue for tribal judges. Culturally sensitive judicial training in effective methods of adjudicating juvenile crime is an acute need for tribal justice systems. No juvenile detention facility is located within Indian Country east of the Mississippi River and few exist throughout the remainder of Indian Country. The lack of detention facilities, juvenile probation officers, intermediate sanction alternatives, and other needed programs are directly related to the high rate of juvenile recidivism in Indian Country. (Final Report, Appendix, Tab A, p. 2).

Lack of Tribal Justice Systems Data
Languishing Tribal justice Act Survey

Whenever issues of funding are confronted, statistical support of funding requests is critical. Unfortunately due to the chronic lack of base funding which leads to a dearth of tribal court personnel and technological support, a complete statistical picture of the needs of tribal justice systems is unavailable at this time. Although the Indian Tribal Justice Act required the Secretary of the Interior to enter into a contract to conduct a survey of the tribal justice systems base support funding needs by June of 1994, the Act failed to include a deadline for the completion of the initial survey. As of this date, the survey has yet to be distributed to tribes and tribal justice systems. The survey mandated by the Act would have provided this Committee and the tribes with valuable information about the levels of functioning and capacity of the tribal justice systems, the volume and complexity of the caseloads; the facilities (including detention facilities), funding levels and personnel staffing requirements and the training and technical assistance needs of the tribal justice systems. 25 U.S.C. �3612(b).

The failure of the BIA to establish the Office of Tribal Justice Support required by Section 3611 of the Act has also deprived the tribes and the federal government, including this Committee, of the Information Clearinghouse. The Information Clearinghouse is to include an electronic database on tribal justice systems which would include information on staffing, funding, model tribal codes, tribal justice activities and tribal judicial decisions. Had the Information Clearinghouse been established at the initial enactment of the Act, this Committee would have had access to almost five years of tribal justice systems data at this time.

Regardless of the lack of a completed Indian Tribal Justice Act Survey and the absence of the Information Clearinghouse, the provisions of the Act itself are evidence of the gross underfunding of tribal courts.

NAICIA's Efforts to Collect Tribal Justice Needs Data

NAICJA, a non-profit association of tribal judges and peacemakers, was established in 1969. For the past three decades, NAICJA has pursued its mission of providing tribal judicial education and technical support almost exclusively through its low membership dues and registration fees from the National Tribal Judicial Conference which it hosts annually. Each of the members of the Board of Directors represents the tribal courts within a given region of the United States. The cost of each Director's travel to NAICJA meetings, conferences and hearings, such as this one, is borne by the Director's tribe. Despite the paucity of organizational funds, NAICJA has attempted to fill in the statistical collection gap with regard to tribal justice needs information.

Driven by the lack of effort to implement the Indian Tribal Justice Act, largely through volunteer efforts, in 1995 NAICJA conducted a survey of 231 tribal courts in an effort to document the then current unmet financial need. (Copy of NAICJA Tribal Justice Survey Summary attached.) The Survey revealed an unmet need that exceeded the 1995 funding level for tribal courts by 215%. In the years subsequent to the 1995 NAICJA Survey approximately 50 to 100 new tribal justice systems have been developed.

NAICJA has recently commenced compiling a brief survey of tribal justice needs as specifically related to the enumerated purposes for which financial assistance under the Tribal Justice Act may be used. (Sample survey form attached.) Responses from nineteen tribal courts have been received as of the date of this hearing. When questioned about their highest priority funding needs, the respondent courts stated that their most critical need was funding for construction or renovation of facilities for tribal justice systems, the second highest priority was employment of judicial and court personnel and the third highest priority was training programs and continuing education for tribal judicial and court personnel.

The need to address the disproportionately high rate of crime within Indian Country is obvious, serious and merits immediate attention. The nationwide drop in Violent crime of 17%, and the drop in homicides by 22% between 1992 and 1996, illustrates the positive effect a commitment of substantial law enforcement and judicial resources can have if effectively deployed. (Final Report, p. 5). The funding of the Joint Indian Country Law Enforcement Initiative, coupled with funding of the Tribal Justice Act, will be substantial steps toward curtailing the Indian Country public safety crisis. In the words of the Attorney General, "Fulfilling the federal trust responsibility to Indian nations means not only improving law enforcement, but also enhancing tribal courts." (Address by Attorney-General Janet Reno, United South and Eastern Tribes, Inc. Meeting, February 3, 1998.) It is NAICJA's sincere hope that the members of this Committee, as well as the whole Congress, will support these requests.

Once again, thank you for the opportunity to bring before you the tribal justice needs of Indian Country. I will gladly address any questions of the Committee.