A divorce.
“He went out drinking, used poor judgment and drove home,” said Ann Sherwood, an attorney in the Confederated Salish and Kootenai Tribal Defenders Office.
Tribal officers were summoned to assist. The man blew in the Breathalyzer, was over the legal limit for alcohol, and was arrested and charged with driving under the influence.
It was his first offense, but it carried a potential punishment far beyond what the law calls for. At his job, he drove a company vehicle, and company rules called for anyone convicted of a DUI to be fired on the spot. The man was not only going to lose his wife, he could lose his job, too.
Sherwood's office contacted tribal prosecutors and sought a plea agreement. They agreed that if the man paid the equivalent of a DUI fine, paid for and completed a DUI course and obeyed all laws for six months, the DUI charge itself would be dropped.
“He was truly a one-time offender who has never re-offended,” Sherwood said. “The agreement allowed him to keep his job, get his life in order, and justice was done.”
While the Confederated Salish and Kootenai Tribes' criminal code, adopted in 1994, is modeled after Montana law, it is not a clone of it. Tuesday's event was the vision and project of the late Joe Moran, chief justice of CSKT's Court of Appeals, who wanted to give interested non-tribal members an inside look at the tribes' court system.
“Cultural Connection and the Law” drew attorneys, paralegals, law enforcement officers - even a University of New Mexico Law School student from Lame Deer - to several hours of talks and discussions.
“Joe's vision was to provide a means for cultural sensitivity, where non-tribal attorneys and professionals involved in our court system can better understand tribal people and their values,” said Abby Dupuis, the tribal appellate court administrator who helped carry out Moran's project after his death in March.
Participants heard not just from current and former tribal attorneys and judges. They also listened to the history of law and order in Indian Country, and how Native American culture plays a role in tribal courts.
Laws, said Vernon Finley, are made to make people behave.
Whether the law says don't exceed 25 mph or don't murder someone, the rules exist to protect society as a whole.
But how was that accomplished before there were laws?
“I grew up with my grandparents, and I remember my grandfather telling me the way things were before we made contact with the Europeans,” Finley, a member of the Kootenai Culture Committee, told Tuesday's crowd. “The way they made people behave was a lot different than it is today. The intrinsic motivator was not punishment, but a person's connection with the whole group.”
Finley said he remembered reading in graduate school that 8 percent of any given population “is going to be deviant, and require courts and punishment.” The rest, he said, will feel a responsibility to the group that, under the right circumstances - i.e., a feeling of being connected to the larger whole - will lead them to behave in ways that protect the group.
“I was thinking about that when I remembered a juvenile who got into trouble,” Finley said. “He was sent to meet with the elders and tell them what he did. He came in and was really nervous, but instead of 40 lashes, the elders asked him, ‘Who are you? Who are your parents? Who else is in your family?' All they talked about was how he was connected within the community.”
Later, his mother told the elders the boy had changed.
“She said, ‘Wow, that child is so full of shame by all that, that he wasn't in trouble anymore,' ” Finley said. “He could have been part of that 8 percent, but he wasn't.”
It's why cultural education is so important on reservations, Tony Incashola, director of the Salish-Pend d'Oreille Culture Committee, added later.
“Every culture has its own value system,” Incashola said. “Somewhere along the line we lost that, knowing how to trust and respect. As I've learned from my elders, each member of a group had a responsibility, and each had to take care of it for the group to survive. If that responsibility is not passed down to our children, we lose ground. Our culture is being lost.”
That's at the heart of the tribes' cultural diversion program according to Sherwood and Leonard Gray of the CSKT defenders office.
Admitting it is a “work in progress,” the program does have several success stories. Winona Tanner, chief judge of CSKT's tribal court, said she heard the case of a tribal member charged with a fish and game violation.
He had shot a deer and left most of it to rot.
Tanner said a fine would be the traditional method of dealing with the violation, but instead, she referred him to the Salish Culture Committee.
“He made an appointment but never showed up, so we had a show-cause hearing,” Tanner said, where the young man appeared to be very upset and nervous about going before the elders. She again ordered him to.
“The elders shared stories with him of hunting, about how our ancestors used all parts of an animal,” she said. The talk with the elders, she believes, will go much farther to keeping the young man from repeating his offense, than a simple fine would have.
Those are ways CSKT's justice system differs from federal or state courts, but the Flathead Reservation is also different from virtually every other Indian reservation in the nation, according to James Park Taylor.
Taylor, now co-director of the University of Montana's Maureen and Mike Mansfield Center Juries and Democracy Program but a former attorney in the tribal defenders office, called CSKT's “commitment to due process really unique.”
Most tribal courts do not guarantee the right to legal counsel, Taylor said, but the Salish and Kootenai Tribes do.
The history of tribal courts is a long and complicated - and ongoing - one, according to Taylor and Ranald McDonald, managing attorney in the CSKT Legal Department. Today's system stems from a 1953 law known as Public Law 280, which gave states jurisdiction over Indian tribes previously held by the federal government. It was, Taylor said, essentially “part of an effort to terminate Indian tribes.”
When Montana enacted its first statute dealing with P.L. 280 in 1963, Taylor said, the Confederated Salish and Kootenai Tribes had 11 employees and an annual budget of $250,000.
“It was not a big structure,” Taylor said. “They weren't set up to deal with” the establishment of a tribal court system.
By 1991 the tribes had 1,200 employees and a budget of $70 million, and moved to regain jurisdiction over misdemeanors. By 2007, the CSKT tribal courts dealt with 1,970 criminal cases, 175 juvenile cases and 710 civil cases, with daily dockets that ranged from 20 to 40 hearings.
Legislation proposed by U.S. Sen. Byron Dorgan, D-N.D., and co-sponsored by Democratic Montana Sens. Max Baucus and Jon Tester, called the Tribal Law and Order Act of 2008, would further clarify jurisdiction and other matters concerning tribal court systems.
Meantime, CSKT officials are pleased with what their court system has accomplished in the past 14 years.
“The systems have been working quite well,” McDonald said. “Law enforcement agencies are getting along better than they probably ever have, and are working together and not against each other.”
Reporter Vince Devlin can be reached at 1-800-366-7186 or at vdevlin@missoulian.com.
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