Chief Justice provides update on Judicial Branch


Boozhoo. It is my duty and pleasure to deliver the 2021 State of the Mille Lacs Band of Ojibwe Judiciary Address. 2020 was a year of unprecedented challenges for the Band’s third branch of government. I am proud to report that the judiciary and court staff have responded and adapted outstandingly. We found ourselves needing to focus on the primary mission and purposes of the Court of Central Jurisdiction and strategizing how to fulfill those in the face of the stress and strain of a global pandemic. The role of the Band’s judiciary is multifaceted. The Court acts as the keeper of safety and peace in the Band’s territory, resolves disputes in a culturally respectful manner, addresses the root causes of child neglect and family dysfunction, and creates opportunities for Band member and community healing. I will share with you the major ways in which the Court has adapted to continue to deliver services and our continuing progress toward creating a more user-friendly and effective justice system.

Before I delve into those efforts, I would like to introduce my fellow Justices. Associate Justice Elmer Nayquonabe is the District I representative on the Court of Appeals. We welcome Sylvia Wise, who was appointed on December 16, 2020, as the Associate Justice from District III, filling the vacancy left by Justice William Premo’s resignation.

One of the most significant events of 2020 for the Court was the departure of District Court Judge David Christensen. Judge Christensen served as our trial-level judge for the past six years and, many years before that, in other legal positions with the Band. He answered the call of his tribe, the Three Affiliated Tribes of the Mandan, Hidatsa, and Arikara, to come home and serve as their Chief Judge. We are grateful for his many years of enthusiastic service, the concern and compassion he showed to all who came before him, and his initiatives designed to enhance the Court’s operations to better embody Mille Lacs Band values, customs, and traditions.

Our new District Court Judge Richard Osburn, a member of the Cherokee Nation, returns to the position which he held from 2008 to 2014. He started his six-year term on October 13, 2020. In the intervening years, he served as a State of Minnesota judge hearing both unemployment and Department of Human Services matters, and as Assistant District Attorney for Muskogee County, Oklahoma. With his return to the Mille Lacs Band judiciary, he is fulfilling his goal of working in Indian Country.

Our deep appreciation goes out to our Special Magistrates Tammy Swanson, Joe Plumer, and B.J. Jones, who readily pitched in to hear and decide cases in the interim between Judge Christiansen’s departure and Judge Osburn’s arrival. Without their assistance, many cases would have been delayed for weeks or months.

The task of converting a court system that is accustomed to handling all filings and hearings in person, to one that is 100 percent remotely conducted was complex and further complicated by how quickly the transition needed to occur. We are so fortunate to have Band member Gilda Burr, our longtime Court Administrator, leading the Court’s efforts. Gilda faced the challenge of having to accomplish this while furloughing in varying respects 70 percent of the Court staff. We thank her for her outstanding efforts and long hours dedicated to keeping the court running seamlessly. The court staff persevered and adapted to shifting shortened work schedules, reduced paychecks, new no-contact filing systems, and communicating remotely with numerous attorneys and litigants. To move to a system that was physically safe for judges, staff, attorneys, clients, and witnesses while maintaining confidentiality took many steps. Chief Justice Orders were issued which adopted procedures to reduce physical contact in court proceedings, suspended the requirement that affidavits be notarized to avoid personal contact, and authorized the electronic filing of pleadings and orders. District Court Rule 134 was developed and approved to make the new e-filing system permanent. Gilda was able to access the Band’s COVID-relief grant funds to con-tract for a new system, File and Serve Express, that will put a comprehensive professional e-filing system in place by mid to late February 2021.

Once a system was implemented to avoid the need to file documents in person, the Court then turned to implementing ways to conduct hearings and trials without personal appearances. The Court could not use ordinary conference phones or Zoom because those methods are not secure, and the confidentiality of the proceedings would be put at risk. After significant research and investigation, the decision was made to implement MiCol-lab for telephonic hearings and Web-Ex for video trials. Keith Modglin and the IS department staff deserve our profuse thanks for getting all this technology installed and running in record time. The new system has worked well; however, the Court needs to stress the importance of persons involved in the hearings and trials to call in. Failure to call in results in delays that prevent the completion of cases and may even result in children remaining in out-of-home care longer than necessary. The District Court will be instituting a new process utilizing appearance bonds in criminal matters to better ensure defendants appear for their arraignments. Additional information about the bond process will be distributed and posted on the Court’s web page soon.

The silver lining to the pandemic cloud over 2020 may be that the Court of Central Jurisdiction is now one of the safest and most technologically advanced tribal courts in the United States. In 2021, we will continue this enhancement trend with a focus on automating court forms so that anyone can fill them out and file them from their computer or smartphone.

Despite shutdowns and stay at home orders, people were still in need of the protection and services of the Court. In 2020, 1,287 cases were filed and of those, the Court closed 973. There were 1,435 hearings and the District Court issued 3,160 orders.

The Court takes seriously its obligation to keep the concept of zhawenimaa at the center of all its proceedings and practices. Title 24, section 2002 of the Mille Lacs Band Statutes states our judicial philosophy as follows:

“Peace and harmony between the people of the Band is necessary to ensure the survival of the Anishinaabe. At times, the circle of peace and harmony amongst the people will be disrupted. This circle of life needs to be restored in a manner that permits the integrity of the individual to be maintained so that the community will continue to grow and prosper. . . . [The goal is to] strengthen and help those who come before the Court so that they may experience a good life.”

Unfortunately, we have seen the circle of life close for far too many Band and family members during 2020, be it because of the ravages of COVID-19 or due to increasing numbers of drug overdose deaths. The New York Times characterized COVID-19 as a “national relapse trigger.” In the first half of 2020, drug overdose deaths increased by more than 30 percent in Minnesota from 2019. Even more alarmingly, overdose deaths of people between the ages of 25 and 34 were up 58 percent. The State believes that the increases are due to the introduction of fentanyl-laced oxycodone. Tragically, the opioid epidemic rages on in the shadow of the pandemic.

It is critical, therefore, that the Court of Central Jurisdiction strengthens its partnerships with tribal departments and state agencies to intensify its efforts to combat substance abuse and the devastation it wreaks on individuals’ lives, their children, families, and the Mille Lacs Band as a whole. We know that the approach the Court has been using so far has been successful.

I would like to share the story of a young Band member mother and her children who have recently been reunited as a result of the Tribal Court child welfare process.

Several years ago, a Band member baby tested positive for opiates and methamphetamine at birth. The tremors and distress of Neonatal Abstinence Syndrome set in immediately, and the little baby had to be transferred to the neonatal intensive care unit at Children’s Hospital. Both of his parents were homeless and deeply involved in their drug use. The baby was fortunate that a sober Band member relative was willing to be a foster care placement. Even after their child was placed into foster care, the parents continued to use and became involved repeatedly with the criminal justice system. The parents’ relationship was characterized by severe domestic violence. A few months after the baby was born, the mother separated from the baby’s father and became sober. Unfortunately, her sobriety did not last. In the following year, she gave birth to another infant who also tested positive for methamphetamine and opiates. The mom admitted to having used heroin daily before her second child’s birth. The second child joined the older sibling in foster care. After two years in foster care, the relative could not care for the children any longer, and the children were placed in non-relative foster homes. For varying reasons, they had to be moved twice to new foster homes after that. The case remained open for the next two years.
Finally, the mother again finds herself in jail, and as a condition of probation, she is ordered to attend in-patient drug treatment. She enters into the Recovering Hope program in Mora, Minnesota.

This is a highly effective program that allows mothers to have their children with them as they work on their recovery. The mother seriously engages in the program, becomes sober, and earns the chance to have overnight and weekend visits with her two children. While in treatment, the mom discovers that she is pregnant for the third time. But this time she is drug-free and receiving regular prenatal care. She graduates from Recovering Hope, but she is homeless. She knows she can’t be reunited with the children if she doesn’t have safe, sober, and stable housing. Contact is made with the Wraparound Program, but unfortunately, there are no houses available.

The mother’s parents, like so many parents of addicted children, had previously been afraid that their daughter would relapse and consequently, had been reluctant to have her move into their home. By this time, however, the mother has been sober for over a year, she has a job, and she is being an excellent parent to her children. Her parents welcome her and the children into their home. She maintains her sobriety and she gives birth to a healthy, drug-free third baby. In October 2020, the Court determined that the reasons that led to the children being removed from their mother had been addressed and that, as a result of the mother’s hard work and commitment and her strong family supports, the Court and Family Services’ oversight was no longer necessary, and Judge Osburn dismissed the case.

While this is a happy ending, it did not come about quickly or smoothly. It was approximately four years between the time the first baby was born and removed from the parents’ custody and the day the case closed. Two different judges, three different Deputy Solicitor Generals, six different tribal social workers, and three different county social workers came and went on the case. In those four years, the two older children were moved to four different placements. It took several extended family members to come forward to care for the children.

There can be no dispute that the reunification process took too long. Even twelve months in out-of-home care in the short life of a child can seem like an eternity to him or her. It is documented that long-term out-of-home care can negatively impact a child’s development. The Court hopes that using a different approach to child protection cases can be a vast improvement and achieve family reunification more quickly.

Our improved approach, the Family Healing to Wellness Court Program, also known as Noojimo’wgamig Inaawanidiwag, or Healing Journey, has been in the planning stage for over three years. This will be an interdisciplinary collaborative team program that will have the participation of tribal departments, the schools, and relevant state courts and agencies. This approach will improve communication and speed service delivery to individuals and families suffering from the effects of substance abuse. We were thrilled to learn in November 2020 that the Band’s application for funding for the program from the U.S. Department of Justice, Office of Justice Programs, was fully funded for $877,477.00. We express our gratitude for the excellent work of the Grants Department that collaborated with court staff to prepare the successful application. The Band was one of the only 30 — out of a multitude of tribes applying — to be funded.

As we move through 2021, the Court of Central Jurisdiction will continue to meet the justice needs of the Mille Lacs Band community. We will be improving access to court services in ways that are safe, efficient, and compassionate. We know that even in the face of the pandemic, we need to redouble our efforts to address the opioid epidemic. We also know that the Court will need the continued support and collaboration of our fellow governmental branches, the Chief Executive, and the Legislative Branch, to bring about health and healing together. The Court is looking forward to working with Band member elders and other community members who are willing to share their recovery experience, strength, and hope with others striving to become and stay sober. There is a post on the Sober Squad Facebook page that says, “If trauma can be passed down generation to generation, so can your healing.” Working together, we can help this generation to heal.
Miigwech for the opportunity to give you this State of the Judiciary Address.