Red Lake: Questions of authority and order in tribal court

 

 

By Pam Louwagie

Star Tribune

 

      RED LAKE, MINN. -- The tiny room tucked inside the old police station looks more like a classroom than the community's hall of justice. On a recent day, a judge in a plaid shirt sat behind a simple metal desk and watched over opposing counsel in bluejeans as they tried to agree on a client's fate.

      In Red Lake's tribal court, there's no question that justice appears informal. Some question whether it's effective in establishing a sense of order and accountability.

      The isolated sovereign community in northern Minnesota handles its own civil disputes and low-level crime cases with its own judicial system. It's rare when a defendant doesn't know someone in the legal system who's involved in a case, and arguments are made that the process is more understanding because of that personal touch.

      Others point out that tribal leaders have control over who works in the court system. They argue that such authority can influence how cases are resolved and that, as a result, many bad deeds go unpunished.

      Much about Red Lake has come under increased scrutiny since the March 21 shootings in which 16-year-old Jeff Weise killed 10 people, including himself. The federal government and the tribe are looking at what can be changed to minimize the chance of future violent behavior at Red Lake.

      "Courts have to deal with all of the violence on the reservation," said Francis Brun, whose son Derrick, a security guard, was killed at the school. "People think that they can get away with anything, and they'll commit the same crimes again."

      A former Red Lake administrator who lost his job after last year's tribal election, Brun said he told Tribal Council members recently that reform of the judicial system is needed to show that leaders are serious about preventing future violence.

      Red Lake's court has a history of problems. A 1986 Star Tribune investigation found that Red Lake defendants had been denied jury trials and bail and could be held indefinitely without being charged. Also, tribal officials were accused of interfering with the courts.

      The council last year hired an outside evaluator, who found that the system lacks funding, organization and perceived independence. Author Mary Pearson, an attorney and a chief judge for an Idaho tribe, declined to discuss her findings without tribal authorization.

      Red Lake Tribal Treasurer Darrell Seki Sr. said the tribe has responded to the report, hiring a coordinator to increase efficiency. "The media's got to give us a chance to correct things," Seki said. "It takes time."

      Tribal Chairman Floyd Jourdain Jr. wasn't available to be interviewed for this article. Jourdain's 16-year-old son, Louis, was arrested and charged with conspiracy in the Weise case, which is being handled by federal authorities in the Twin Cities.

     

Old brand of justice

      Defendants sometimes are sentenced in ways that wouldn't typically happen in state and federal courts. Juveniles have been sentenced to meet with spiritual leaders, write essays about what it means to be Native American or make gifts to present when asking for forgiveness at a community gathering.

      Tribal court judges must be "learned in the laws and customs" of the tribe and need not have more than a high school diploma, according to the Red Lake tribal code. Judges, prosecutors and defense counsel are not required to be lawyers.

      They are required to be Red Lake Band members and understand and speak Ojibwe and English, although the council has made exceptions.

      In general, rules are less formal. "It's a lot more common to have a judge talk directly" to a plaintiff or defendant, said Amber Ahola of Anishinabe Legal Services, which provides legal aid to Red Lake residents.

      One recent afternoon, a disheveled man in handcuffs and a striped jail jumpsuit stood before Red Lake Judge Garnet Comegan and pleaded guilty to violating the dry reservation's liquor law. For the second time in as many weeks, the man had been spotted sleeping in a ditch.

      "You just can't be sleeping on the side of the road," Comegan said, his voice concerned. "Were you really just out of it?"

      The man explained that he'd been taking medication; Comegan delayed sentencing pending an alcohol assessment.

      Cindy King, a former prosecutor who now works as a defense advocate, said the system can better identify defendants' needs. At the same time, the court can't be fooled as easily.

      "They can't try to [act] all innocent because you know they're not," King said.

     

Undue influence

      Despite a separation-of-powers resolution passed a few years ago, Pearson's evaluation found that "comments about the council interfering with the court were frequent and people fear for their positions. While a certain amount of this is found in all tribes or nations that do not have a real separation of powers, it seemed more pronounced at Red Lake."

      Under Red Lake's sovereign status, state criminal laws don't apply. Federal courts handle major crime cases but rarely get involved in civil disputes unless they involve claims of wrongful imprisonment. Constitutional rights don't apply, and residents have little recourse if the tribe doesn't follow its own civil rights code or the 1968 federal Indian Civil Rights Act.

      In 2003, Red Lake member Shirley Cain served a six-month stint as chief judge and called Red Lake "one of the worst systems I've ever encountered in my career as a lawyer."

      Citing tribal interference with staffing issues, absenteeism and poor work habits, she said the system "just perpetuates the violence and the lack of accountability for anybody."

      Bill Lawrence, a nonresident Red Lake tribal member who publishes the Native American Press/Ojibwe News, said the tribe denied him a license to practice law years ago even though he has a law degree.

      A frequent critic of tribal government and Red Lake's court system, Lawrence said the tribe may have feared he would represent people in lawsuits against council members.

      Dan Charnoski, a judge in Red Lake since 1995, said tribal leaders usually leave him alone. One asked him once to reconsider a ruling; he did, he said, but didn't change his mind.

      "They realize there's a winner and there's a loser," Charnoski said. "You're always hearing from the loser."

     

Fixing problems

      In her report, Pearson found that courts, prosecutors, police and others weren't working well together in fighting truancy. When she visited the high school in April 2004, only 110 of 265 students enrolled the previous fall were there, and more than 400 truancy cases hadn't been filed with the courts.

      "The Red Lake Nation is losing an entire generation of youth to lack of education," Pearson wrote. "In a few years, this lack of education will have serious impacts on the nation."

      Her report also found that thousands of complaints filed by the Red Lake Police Department had gone unprosecuted. Those in the system agree there is a backlog, though they say it's not as dire as alleged.

      Allen Pemberton, a member of the Tribal Council, said it will take money to fix court problems. The council is paying more attention to the judicial system, he said, but it faces tough decisions about priorities.

      The council recently hired a former tribal chairman, Bobby Whitefeather, to implement the changes that Pearson suggested.

      "I live and breathe pretty much the frustration that people feel because of the lack of timeliness of justice," Whitefeather said.

     

Different strokes

      Hector Martinez, Red Lake's chief prosecutor since October, said he was stunned the first time he stepped into a tribal court as a prosecutor. Fresh from law school in North Dakota, he expected the Spirit Lake Reservation court to work like a state court.

      As he tried to negotiate a plea with one defendant, he said, the defendant's family went to the tribal council for help.

      "There's nothing wrong with that, if that's the system that's in place," he said. Tribal courts, including Red Lake's, are evolving slowly and improving, he said.

      Seki, the tribal treasurer, said that Red Lake residents come to him for help with legal issues. He tells them no.

      "That's what separation of powers is," he said.

      University of Minnesota law Prof. Kevin Washburn argues that people in tribal courts work hard with few resources and that the state and federal systems aren't perfect, either.

      "It's absolutely untrue that only in Indian systems [do people in other branches] try to affect the courts," he said.

      Other countries don't operate courts the same way the United States does, he pointed out. "Just because Indian tribes do it [differently] ... doesn't mean the way that they do it is wrong."

      But until Red Lake's system changes to become more trustworthy in the eyes of its residents, critics say, it will be difficult to fix the reservation's problems. Former court administrator Joe Johnson, who said he left a chief judgeship there because of politics, said he thinks residents don't take the tribal court seriously.

      "If you're going have any kind of peace or tranquility at all," Johnson said, "you're going to have to have a justice system that's fair."