ROSEBUD, S.D. – Tribal officials recently met with Neil Fulton, who serves as the lead public defender for the North Dakota-South Dakota U.S. District Court to discuss issues facing tribal offenders.
“There’s a real problem when our tribal citizens have both tribal and federal charges for the same incident,” stated Dan Gargan, special public defender for the Rosebud Sioux Tribe.
“We see instances like this all the time between the federal, state and tribal court systems,” said Fulton, who met with members of the Rosebud Sioux Tribe’s Judiciary Committee. “When it is appropriate, federal judges will work to approve a release for a defendant. For example, Judge Moreno will generally apply a third-party release when the defendant has a responsible relative who will comply with conditions of the release.
“Third-party releases from a federal jail pending trial are supervised quite adequately by the Federal Probation Office,” continued Fulton. “Releases are granted so the defendant can continue working if they are employed. A release will also allow the defendant to pursue educational or treatment opportunities.”
However, even if a defendant is eligible for a third-party release from a federal facility, the process doesn’t always work in their favor. Several scenarios were discussed at the meeting to inform tribal officials about the hardships placed on tribal citizens who are charged with tribal or federal crimes.
Gargan outlined an example which many tribal offenders are facing. “A defendant was charged in tribal court and his bond was $10,000, which was lowered by the tribal judge to $7,000,” he said. “The defendant could not pay the bond. This defendant was subsequently indicted in federal court and was transferred to a federal jail.”
“He was determined eligible for a third-party release from the federal system pending trial,” he said. “But the Federal Judge didn’t grant the release because the defendant would have had to come back and go right back to the tribal jail because the tribal charges were still active and he still needed the $7,000 cash bond, which he didn’t have. So, the release wasn’t approved because the defendant would have had to sit in Rosebud’s jail. It would have been near impossible for his court appointed attorney to meet with him to discuss his federal case.”
“The bonds set by tribal court are too high,” Gargan stated. “The tribe is always looking for other jurisdictions to recognize our laws. However, in this case a federal judge would have released this defendant but our tribal court wouldn’t recognize the order granting the third-party release. The federal release was not recognized because, according to the tribal court, the defendant has to take care of the tribal impediments before being released from our jail.”
“In addition, the Rosebud Sioux Tribal Court considers a speedy trial as one which happens within a 180-day, or a six month, period,” he said. “In one case, a defendant sat in a federal jail because of an inability to post bond in a tribal criminal case. So, the defendant remained in federal custody. On the 179th day, the tribal judge signed a dismissal of the charges against this defendant, who was then able to be released to a third-party. Also, when a defendant accepts a plea bargain in tribal court, that plea deal can also be used against them in federal court.”
“Cash bonds required by the tribal court becomes an impediment to the defendant who could otherwise enter a treatment program under their terms of release from federal custody,” stated Fulton. “So, the folks who still need to pay a cash bond to tribal court, who might otherwise be able to be released to a third party, are not considered for release by the federal judge because they will just have sit in the tribal jail. It creates a real hardship on the person.”
“Some tribal courts will dismiss charges when a federal indictment is issued against a defendant or when they either plead guilty or are convicted to the felony charge,” Fulton continued. “Rosebud and Sisseton are the only tribal courts who do not automatically dismiss a tribal criminal charge which results in a federal indictment.”
“It’s hard for us to have contact with inmates in the tribal jail. The ideal scenario would see coordination between the separate courts. This might result in parallel conditions of release supervised by federal officers. I can’t echo enough that the tribal citizens who come through our office cannot post a cash bond,” Fulton told tribal officials. “Ninety-eight percent of the people across this country agree to a plea bargain. My office provides court appointed attorneys for the men and women we represent. We do the best we can for everyone who comes through my door.”
“Tribal members are not treated fairly and it’s cruel,” stated Margaret Douville, a Parmelee resident. “The tribe needs to put policies and standards in place to change how things are done.”
The Parmelee Community did approve a resolution requesting the Judiciary Committee to stop the practice of allowing dual charges in both tribal and federal court systems. Excerpts of the document state:
“It has come to the attention of the Parmelee community and its constituents that the Rosebud Sioux Tribal Court enforces a practice that is cruel and unjustified…Prosecutors are allowed to enforce practices that sometimes are not in the best interest of tribal members…Rosebud Sioux Tribal Court adjudicates tribal members for crimes even after tribal members have been charged in federal court…this practice is not fair and just.”
“We recognize the significance of this issue and we are looking into it,” stated Mary Wynne, Attorney General for the Rosebud Sioux Tribe. “Bonds have increased over the past three years. The prosecutor recommends the bond amount, but the tribal judge sets the bond.”
“We surveyed tribal court systems on other reservations and they are all facing the same issue,” she continued. “Our Supreme Court allows both jurisdictions to prosecute the same crime. Also, having only one tribal prosecutor hinders us because of the heavy case load.”
“Currently, a tribal judge has been assigned to work on redrafting policies regarding the recommendation of bail or not,” Wynne said. “We are also looking at a home monitoring release system much like the one used by the federal court.”
Wynne also stated that the RST Attorney General’s Office should be responsible for deciding what cases are forwarded to the U.S. attorney to pursue prosecution in federal court.
“We need our own grand jury to look at these cases to determine what actually goes to the federal prosecutor,” stated Robert Rattling Leaf, Horse Creek tribal council representative. “A lot of our young people are branded as felons, it ruins their lives. One person should not determine what cases go to the federal prosecutor. We have to protect all our tribal members.”