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Lander attorney says BIA court disregards rights of prisoners

Nov 29, 2016 By Daniel Bendtsen, Staff Writer

When one prisoner was arraigned Monday before the Bureau of Indian Affairs' new court in Fort Washakie, judge Kimberly Craven announced the man was being charged with obstructing justice.

No factual basis for the charge was read. Craven did not explain what would constitute the prisoner's guilt, nor did she mention that a guilty plea would mean a mandatory 30-day sentence.

But with no attorney by his side, the prisoner was ready to plead guilty anyway.

Such a plea would have been premature, since the prosecuting attorney immediately interrupted to explain the charge was being dropped.

Instances like these have Lander attorney Andy Baldwin arguing that prisoners' rights have been willfully disregarded since the BIA effectively deposed the Shoshone and Arapaho Tribal Court a month ago.

Baldwin was once the executive director of legal services on the Wind River Indian Reservation but now heads the law firm representing the Northern Arapaho Tribe, which is fighting for a federal court to intervene in the BIA's court operations.

Court rules

Baldwin is no neutral observer, but many of these rights that he says are ignored have been explicitly enumerated in the Code of Federal Regulations concerning court procedures in Indian county.

Those rules require that the accused should be fully advised of the rights protected by the Constitution, including trial by jury, the right to remain silent and the right to be represented by counsel.

Magistrates are also required to read a criminal complaint to the accused and ensure the defendant understands the accusation, including "the maximum authorized penalty."

Craven did make note of the prisoner's rights on Monday, but that's not always been the case, according Kelly Rudd, a partner in Baldwin's firm.

"Many detainees seemed to operate on an assumption that getting out of jail soon would require them to plead," Rudd said in a sworn declaration. "(They don't) understand that the right to counsel could be invoked for assistance in arraignment, pleading and sentencing."

Rudd and Ron Kopriva, who has often served as a public defender in the tribal court, have attended arraignments this month and, based on their observations, Baldwin said in a court filing that judges seemed to conspire with the prosecution and "a presumption of innocence was not intact."

The CFR explicitly states that an "arraignment will be postponed should he or she desire to consult with counsel."

But at one arraignment Rudd attended, judge Thelma Stiffarm told a defendant he would only be allowed an attorney once his case went to trial.

Tribal court rules

At the request of both tribes, the BIA has agreed to follow the Shoshone and Arapaho Law and Order Code, rather than the CFR.

If that's the case, these magistrates could believe that CFR provisions on criminal procedures are not applicable.

But if they call the tribal code the law of the court, violations still abound.

The tribal code stipulates that "the court shall not accept a guilty plea without hearing a factual basis therefor."

Judicial norms require that judges and magistrates have a responsibility to ensure that defendants' rights are protected, especially when counsel is not present.

"In none of the arraignments was there ever a factual basis provided by the defendant upon his or her entering a guilty plea," Kopriva said. "In none of the arraignments did the BIA judge ever mention the possibility of a (no contest) plea, let alone the difference between it and a guilty plea."

When Dudley C'Bearing was arraigned for spousal abuse on Nov. 7, the judge indicated that if he didn't take a 30-day jail sentence immediately, he could be sentenced to more time at trial.

When Sterling Blindman tried to plead "no contest" to disorderly conduct, judge Thelma Stiffarm ignored him.

Stiffarm said "he wants to plead guilty" and proceeded to sentence him, Rudd said.

When a man asked to be transferred to tribal court, Stiffarm told him he would not have a public defender available in that court, despite the fact that the tribal court has always had public defenders on staff.

Inconsistent treatment

Even if the court is sloppy in enforcing basic court procedures, it doesn't mean the judges are always draconian in their treatment of prisoners.

When prisoners pleaded guilty on Monday, Craven allowed nearly all of them to be released on their own recognizance, meaning they were not required to post bond.

After one prisoner pleaded guilty to public intoxication, Craven noticed his pregnant girlfriend sitting in the audience.

Craven suspended his fines and granted him a temporary release.

"Try to stay sober, because your baby's going to need you," she pleaded warmly.

Records withheld

When Rudd when to the local BIA office to inspect the records of defendants, superintendent Norma Gourneau told him the records were only available by a formal request made under Freedom of Information Act.

In a request for a temporary restraining order against the BIA, Baldwin argued that "other than perhaps at Guantanamo Bay, the U.S. may not keep secret from the public the names of those (whose) liberty it has deprived."

The tribal law code states that only records for minors are private record, and CFR rules stipulate that "all case records shall be available for inspection by the public."

During the entire time that the tribal court was the only law of the land, BIA police regularly provided arrest records to the tribal prosecutor. Now, they've claimed this action runs afoul of prisoners' right to privacy, and that such requests for records need to be made formally.

"Like a game of 'hide the ball,' defendants present a Byzantine path even to obtain the right information request form," Baldwin said.

Status of the lawsuit

Rudd said he has tried to meet with the Solicitor's Office BIA staff to "explain in person the gravity of the violation of tribal sovereignty and civil rights of tribal members that would flow from displacing the existing tribal court."

DOJ attorney Jim Todd, who has represented the BIA in the lawsuit, tried to organize such a meeting, but the BIA refused.

The Northern Arapaho filed suit this year against the BIA based on the agency's handling of joint programs after the dissolution of the Joint Business Council.

The parties entered settlement talks this summer, but the handling of the tribal court has rekindled the dispute. The Northern Arapaho won an injunction against the BIA last month, and the two parties have combines to file 596 pages of arguments and exhibits in recent months.

Future of tribal court

The federal agency had agreed in early October that the tribal court would be allowed to continue handling all cases of Arapaho defendants, which account for approximately 80 percent of the workload. However, the BIA is now arraigning all defendants, who are then allowed to be transferred to tribal court.

That process itself has issues.

When Keller Duran asked to be arraigned in tribal court last Wednesday, the process of being bound over during the Thanksgiving break meant the he went eight days without an arraignment, despite a defendant's right to be brought before a judge within 72 hours.

The Shoshone and Arapaho Tribal Court has had sole jurisdiction for misdemeanors on the reservation since 1987. But when chief judge John St. Clair issued an order to block the Shoshone Business Council's unilateral takeover of shared programs, the SBC voted to disavow the court.

Since then, some of the council's hard-liners have been voted out. New members have voiced support for the tribal court, and the SBC has talked about potentially having a referendum on the council at an upcoming General Council meeting.

The SBC's authority to withdraw recognition of the tribal court is questionable, since the General Council rescinded legislative authority from the SBC in 1990.

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