Under the color of the law

Self-determination under BIA jurisdiction
Thursday, May 31, 2018

UM photo by Dominik Stallings

Chief Judge Leroy Not Afraid has been a judge for the past 12 years and handles administration of the Judicial Branch as well as the security. He said the Bureau of Indian Affairs was not neutral in its report and produced inflammatory statements that reflected the Judicial Branch poorly.

UM photo by Dominik Stallings

Michelle Cadena Wilson is the newly-elected associate judge for the Crow Judicial Branch. She serves in the juvenile court, and handles cases involving child custody and juvenile detention.

The 14 findings of a 2017 Bureau of Indian Affairs review of the Crow Judicial Branch included accusations of hiring court staff members without background checks, using both the tribe’s federal and general funds to raise judges’ salaries and creating a hostile work environment for a new associate judge, Michelle Wilson.

Alarming as the findings may be, the report itself caused massive disruption in the Crow tribal court system and has some tribal officials questioning the motives of the Bureau of Indian Affairs.

“The infringement of the BIA against our sovereignty, against our jurisdiction, is in opposition of the spirit of the law under the Indian Self-Determination Act,” said Crow Chief Judge Leroy Not Afraid. “I don’t consider it an oversight, I consider it an overreach.”

The BIA review is not out of the ordinary. The tribe, as it creates and develops its own government, is using BIA money to manage its Judicial Branch. The bureau, in turn, keeps a close watch on the dealings within – in the form of annual reviews – to ensure the federal money is spent appropriately. In the worst case scenario, the BIA could pull its funds if review findings are not appropriately addressed.

However, this system has exemplified the precarious relationship tribes have with the federal government. Even as the Crow tries to strengthen its government systems, the process brings the tribe closer to the bureau, giving it a hefty influence over tribal dealings.

For instance, following findings from the 2017 review, the tribe’s federal government funding contract is in high-risk status.

According to the report the tribe is required to provide documentation before its expenses are reimbursed.

As a result, the BIA has threatened to revoke the tribe’s ‘638 funds, federal money provided by the BIA.

“‘638 programs are a lifeline for the tribe,” said Solomon Little Owl, CEO of the Crow government. “It’s an opportunity for the tribe to expand its services and provide employment.”

Little Owl said if the tribe loses its ‘638 grant, its welfare, jurisdiction and legal system’s role would change.

“I have no intention of losing it because I know the repercussions are going to be bad,” he said. “It’s either we get it back or we get it back.”

Little Owl said the government is working with the BIA to make sure the review findings are addressed properly and continue to have a good working relationship with them.

An analysis of the BIA report, the tribe’s corrective action response and a

series of interviews with key players mentioned within, show the Crow tribal court system has a lot of growing pains to endure, quickly.

Review disagreements

On Dec. 5, a team of reviewers from the Bureau of Indian Affairs came into the Crow tribal court to review the judicial system’s financial activity for the 2017 fiscal year. But Judge Not Afraid and court administrator Ginger Goes Ahead said that their findings are politically driven and intentionally written to undermine the integrity of their court system.

According to the BIA’s report, released Jan. 8, multiple allegations of mismanagement of federal funds within the judicial branch are listed, including that the tribal court had expended a total of about $6 million for the fiscal year and only about $4.4 million could be accounted for via cash receipts.

“There is an appearance that the tribe’s general fund is a bottomless pit and the judicial branch can expend without a check and balance system,” the BIA report states.

However, judicial branch officials insist the report is inaccurate. Also mentioned in the report is a 2016 Chevy Tahoe, which, according to the report, was purchased with nearly $45,000 of ‘638 funds in late 2016 and later disappeared. According to the report, Goes Ahead told reviewers it was purchased under the previous administration, using the tribe’s general funds and therefore wasn’t the reviewers concern.

In an interview, Goes Ahead said the Tahoe had never been purchased and a check for it was never cut. She said the vehicle wasn’t supposed to make last year’s expenditure report and it was purchased by someone who wasn’t part of the Crow Tribe.

“The twisting of the language in the report was definitely intentional on their part,” Goes Ahead said. “They made it look like we were hiding this vehicle and it’s just garbage really.”

Before the tribe can truly manage its inner workings free from the watchful eye of the federal government, it must first prove to the Bureau of Indian Affairs it can handle the responsibility, said Shawn Real Bird, a Crow Legislative Branch senator for the Center Lodge District.

“From my position as a legislator, I see that the Judicial Branch is not utilizing the federal funds for its intended purpose,” Real Bird said. “We need to be accountable for our federal funding and educate federal funding managers on maintaining federal compliance.”

Real Bird said the Crow tribal government has a corrective action plan, which outlines how the tribe will fix issues listed in the BIA review, implement and draft laws so the federal funding is in compliance, accountable and transparent.

Real Bird said this plan includes the Finance Management Act and the Justice Improvement Act, two bills he hopes to pass into tribal law. He said the Finance Management Act will provide more transparency and accountability by allowing tribal budgets to be seen by the public and the press, and the Justice Improvement Act will develop a justice board and a grant writing program within the Judicial Branch to provide better training and oversight.

“If we maintain this non-compliance, then the U.S. government will physically take control of our tribal court and manage it for us,” Real Bird said.

During an April 12 meeting of the Legislative Branch, Arrow Creek Sen. Jonny Demontiney asked Leroy whether the Justice Improvement Act could have prevented some of the issues alleged in the BIA review. While Leroy believed the “spirit” of the document was made with good intentions, he said, the answer to Demontiney’s question was “no.”

“The thing about it is it was looking to unilaterally remove me from office and call for a special election,” Leroy said. “That would be the legislature’s prerogative and the chairman’s prerogative, but if you’re elected by the people and another branch is going to remove you, how is that progress?”

Requests for comment by the Big Horn County News to the Legislative Branch speaker of the House and secretary were not returned at press time.

The corrective action plan states that clarification is needed as to which personnel policies will be complied with, including salary limits and nepotism requirements, and who will be responsible for ensuring the court is adhering to these policies. The plan also says that unallowable costs cannot be charged to federal funds and hiring staff members without background checks needs to stop.

Wilson appointment

Michelle Wilson, who was elected to the bench in 2017, said she was unaware of such activity within the Judicial Branch and wasn’t informed of anything in the report’s findings prior to the team’s review.

The more curious findings in the review had nothing to do with finances. The report alleges that Wilson faced a hostile work environment. Based on directives by Chief Judge Not Afraid, Wilson was prohibited from various areas of the tribal courthouse.

According to the report, Goes Ahead advised the BIA review team to avoid Wilson and “proceeded to make derogatory comments about the ethics of the newly elected judge.” The report also stated Wilson is being paid less than the current clerk of court and the previous associate judge.

In last year’s Nov. 4 general election, Wilson defeated former Associate Judge Shelia Not Afraid, who is also Chief Judge Leroy Not Afraid’s wife. Shelia could no longer serve on the judicial bench and Wilson thinks this explains why he’s being so difficult with her.

“It’s rocky because I replaced his wife and they were doing things that were not according to policy,” she said. “I think they just know that I’m going to do the right thing.”

Goes Ahead said she didn’t want the reviewers to interview Wilson. She didn’t think Wilson knew enough about the tribal judicial system since it was only her first day at work as associate judge.

“Just because you pass the Crow bar exam doesn’t mean you know how the whole system is ran,” Goes Ahead said. “From that, they thought I was questioning her ethics.”

In fact, Goes Ahead suggests the BIA report planted the idea of a hostile work environment, a claim that is now causing a significant rift in the tribal court.

“Nothing had even happened with Judge Michelle,” said Goes Ahead. “Just by stating that it’s a hostile work environment, the BIA report already implanted that seed into her brain that we were against her.”

Wilson said when she arrived to her first day of work as associate judge on Dec. 5, the same day the BIA reviewers visited the courts, her office had no working computer, no heat and no working lights. She said that the walls had three colors and paint was peeling. All that was in the room, previously occupied by a bailiff, was a desk, an office chair and a computer tower.

“It was just a mess,” Wilson said.

Goes Ahead said Wilson’s office was fairly empty because the previous occupant had just moved out the day before and she thought Wilson was embellishing the state of her office.

Wilson said she refused to sign required paperwork until a working computer and printer were brought to her. By the end of the day, a computer and an old printer with no copier or scanner were hooked up in her office. She said that requesting supplies was difficult. In order to receive office supplies, she had to send a request to the court administrator, Goes Ahead. She said the space heaters she was given shorted out the power when plugged in. There was no cooling system either.

“Never once did we try to make her feel like she wasn’t welcome,” Goes Ahead said. “I believe that the hostile work environment is seeded and rooted by Judge Michelle.”

Wilson said on Wednesday, Dec. 6, she walked up to the court clerk’s window at the court administration office to be let in and the clerk said he was not allowed to do so except by written permission of the chief judge.

Wilson told BIA reviewers that on the day she was sworn in, Judge Leroy Not Afraid issued a standing order forbidding her from going inside any other part of the court except for her office and her court.

Wilson said the order also specified that she was not allowed to speak to anyone else in the tribal administration, including any executive and legislative government members, and restricted her access to case files.

“He said I was assigned those two places and was forbidden to go to any other area of the court, including the judicial court offices, the main courtroom and the main conference room,” Wilson said.

Judge Not Afraid denies the claims.

“I, myself, personally, have never denied access to Judge Wilson,” he said. He said Wilson has never filed a formal complaint against him and he didn’t communicate with Wilson until well after the BIA review.

Goes Ahead said the order was written to protect the buildings in the Judicial Branch because her office was previously broken into and she wanted to maintain the confidentiality of personnel records. She said all staff members were given the order and many of them were under the impression that no one was allowed in the building, which may have caused the issue with Wilson not being let in.

In a letter sent to the chairman on Feb. 2, Not Afraid responded to the BIA report by stating he was dumbfounded by the conclusion that Wilson was working in a hostile work environment.

“The order is professional and clear, setting out each judge’s court responsibilities and case management authority,” he stated in the letter.

The order was slipped in a binder given to her containing the law and order code and Wilson said she wasn’t aware of the order until she said she was refused access to areas within the court. Wilson said she refuses to follow this order and believes that the chief judge has no authority over her.

“The chief judge is my colleague and not my boss,” Wilson said. “He’s not my supervisor and I don’t answer to him. “According to the Crow law and order code, he does have the responsibility to handle the court schedule and that’s it.”

Goes Ahead said there are two cases against Wilson alleging that she took money from clients and didn’t represent them in court while she was working as an advocate. She said Wilson has been ordered to return the money to those clients but to the best of her knowledge, Wilson has not done so yet.

“She doesn’t even follow the regulations that she has to follow in order to be a legal advocate,” Goes Ahead said.

According to court records, a female tribal member filed a formal complaint against Wilson alleging that she was paid $200 to assist in the release of a prisoner for the holidays in November 2016 and went on holiday out of the country shortly thereafter. The complaint alleges the client couldn’t reach Wilson by phone or email.

According to records from another case, Wilson allegedly did not provide assistance to her client, a different woman, in the fall of 2015 when Wilson was hired to obtain child support.

The complaint claims she was given $130 for her assistance and, again, was unavailable for several months.

Chief Judge Not Afraid previously had Wilson arrested for contempt of court when she was working as an advocate.

Wilson said Leroy stopped regular court and called for an emergency hearing to charge her with contempt.

“He basically said there’s nothing anyone can do because I’m the chief judge and he sent me to jail without bond,” she said.

According to court records, Wilson was charged with criminal contempt in Aug. 2015 for presenting “insolent behavior and contemptuous attitude by being irate to court staff.” In February 2017, she was charged again with contempt for allegedly failing to represent her client at a bench trial because of a scheduling conflict.

However, this didn’t affect Wilson’s image in the eyes of voters who elected her as a tribal judge. Wilson said she ran for the associate judge position because she had issues with the way Leroy ran the court and wanted to see a change.

“I know that the Crow people elected me to do the right thing and that’s what I’m going to do,” she said.

Question of sovereignty

BethYana Pease, lead volunteer of Crow’s community involvement organization Jump Start Healing, said Wilson represents a strong woman who will make a change by directly addressing the same issues addressed in the BIA review.

“People who are looking for justice or people stuck in the judicial system are being left hung out to dry,” Pease said. “It seems like they’re so worried about where their next dollar is going to come from that they’re not worried that someone around here isn’t being given justice at all.”

However, Goes Ahead stands by the notion that the BIA has turned Crow people’s opinions against the Judicial Branch.

“They were continually overreaching,” she said.

In a letter sent to the chairman’s office on Jan. 29, Goes Ahead wrote that “it quickly became apparent they had ulterior motives.”

“We will fight for our sovereignty,” Goes Ahead stated. “The BIA has gone as far as to try to make a judge change their order. As far as a government-to-government relationship, that really undermines the sovereignty of the Crow Tribe and the sovereignty of the Judicial Branch of government.”

Not Afraid’s letter to the chairman also addresses the financial matters raised in the report and said the reviewers chose to address areas that were outside the scope of their review and used them to establish noncompliance.

In concluding his letter, Not Afraid requested the letter be given to the BIA regional director with a request to explain why the reviewers did not follow the law and made untrue statements about the Judicial Branch.

“The accusations against Mrs. Goes Ahead and myself were also done in violation of our constitutional right to due process by being made public information,” he said in the letter.

Goes Ahead said she’s willing to do whatever it takes to make sure the Crow tribal court doesn’t lose its federal funding.

“I would be more than willing to contract with grant writers and people who I feel would be able to assist the Crow tribal courts in a positive, strong collaboration in order to make sure that our court system is strong,” she said.

Leroy said the BIA acted with abusive authority in writing their report and it’s an injustice to the Crow people.

“The monstrosity and the draconian nature of the document published to the public is a miscarriage of justice,” he said.

Category:

Upcoming Events