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Tribal-State Joint Jurisdiction Wellness Courts

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Community Justice Services – Policy Brief / Case: Tribal-State Joint Jurisdiction Wellness Courts
The above reproduced Joint Powers Agreement between the Leech Lake Tribal Court and the Cass County District Court is reproduced from Cass County Leech Lake Band of Ojibwe Wellness Court: From Common Goals to Common Ground Presentation (last accessed on 7 February 2022).

Key fact and figures

Year of establishment
2006
Scope of service
Wellness court that serves as diversion for driving while intoxicated cases
Geographical scope
Cass County, Minnesota, United States of America
Legal entity
Tribal Court and State Court
Type of justice problems addressed
Public Safety
Regulatory embeddedness
Memorandum of Understanding between the courts. (For the first year, it was based on a “handshake” between the courts.) Both courts are exercising jurisdiction together.
Costs of services for citizens (average and range)
For every taxpayer dollar invested in the program, there is a $1.13 return after 5 years.” [1]
Average processing time
About 2 years

Background and History [2]

In 2006, the Leech Lake Band of Ojibwe Tribal Court and the Cass County District Court of the state of Minnesota, with the Cass County Probation Department and Minnesota Department of Corrections, entered into an agreement to create the multi-jurisdictional Cass County and Leech Lake Band of Ojibwe Wellness Court. [3] The first of its kind in the United States, the specialized wellness court’s jurisdiction is jointly shared by both the Tribe and the State and developed in response to the number of repeat-Driving While Intoxicated (DWI) offenders who were also members of the Leech Lake Band of Ojibwe Tribe.

Notably, these cases – which are criminal in nature – were previously only handled by the state court because tribes in Minnesota are generally without criminal jurisdiction. [4] But through this post-conviction, post-sentencing DWI court – available to both tribal members and non-members within the jurisdiction of Cass County– tribal and state court judges jointly preside over proceedings that focus on improving the wellness of the individual coming before them rather than meting out punishment.  This voluntary program is open to individuals who are 18 years of age or older, have committed multiple DWI offenses, and have been determined to be chemically dependent.  In addition, the program screens participants to ensure that they are physically and mentally willing and able to participate in the program and meet its conditions, such as willing to: undergo treatment, seek employment and/or pursue their education, and accept court sanctions for failure to follow through with the court’s expectations. [5]

Individuals who participate in the program embark on a journey over two years that encapsulates a people-centered approach to justice: 

  • Phase 1 – Treatment Stage (3 months) – Participants undergo a chemical assessment and treatment program and attend court sessions every two weeks.
  • Phase 2 – – Transition Stage (minimum of 6 months) – Participants apply the recovery skills they learn to sustain sobriety and maintain individualized case plan and attend court sessions every two weeks.
  • Phase 3 – Living Well Stage (minimum of 12 months for felony convictions and 6 months for gross misdemeanor convictions) –Participants continue to abstain and maintain recovery and attend court sessions monthly. [6]

The mission of the Wellness Court is to reduce the number of repeat substance dependent and DWI offenders by using a coordinated team approach. [7] This involves the Tribal Court Judge, the County District Judge, the prosecutor, the defense attorney, law enforcement personnel, social services workers, probation and treatment specialists, who work together to break the cycle of substance abuse, addiction, and crime among selected non-violent offenders. [8]

Critically, court sessions are held concurrently in the Tribal and District courtrooms and connected by interactive videoconferencing. This gives clients the option of appearing in whichever courtroom is more convenient for them. Indeed, this close collaboration is evidenced by the fact the Tribe’s flag appears in the District courtroom – a direct result of this program.

The joint jurisdiction has infused the Tribe’s culture into the judicial process, which in turn has meant that tribal members who participate in the program can reconnect with and learn about their culture and traditions. Tribal member participants who were previously disconnected from their Anishinaabe traditions are reconnecting with their culture to great success.  Spiritual healers have conducted naming ceremonies, sweat lodges, and talking circles all to further the healing of the participants.  The partnership between the two courts and two sovereigns – the Tribe and the State – has also been credited with helping to heal the two separate communities.

Thanks to the success of the original court, the Leech Lake Band of Ojibwe Tribe has stood up additional joint-jurisdiction courts and programs:

  • In 2009, a Wellness Court for individuals charged with controlled substances was established with the Itasca County District Court.
  • In 2010, a related program was launched for juvenile delinquency cases for tribal youths who are eligible for diversion. This program includes traditional practices such as talking circles to serve the needs of the youth.
  • In 2019, a pilot family drug court for cases involving child protection issues (in either tribal or state court) was launched for tribal members and non-Indians living on the reservation.

Outcomes

The Tribal Law and Policy Institute has reported positive outcomes of both the Cass County & Leech Lake Band of Ojibwe Wellness Court and the Itasca County & Leech Lake Band of Ojibwe Wellness Court such as: families being reunited, driver’s licenses being reinstated, participants becoming employed or continuing their education, and abusive relationships ending. [9]  In addition, participants have tens of thousands of documented days of sobriety among them and have been found to be significantly less likely to reoffend than non-participants.  While the average rate of recidivism in the state of Minnesota stands at 60% or more, the rate of recidivism for participants of the Cass County & Leech Lake Band of Ojibwe Wellness Court and the Itasca County & Leech Lake Band of Ojibwe Wellness Court is 6.6% and 16%, respectively. [10]

In a 2014 study of the Cass County & Leech Lake Band of Ojibwe Wellness Court, researchers conducted an analysis and found that, over time, the program has the potential to result in significant cost savings and a return on its investment. [11] It found:

"The program costs $19,710 per participant. The benefit due to significantly reduced recidivism for program participants over the 2 years…came to $8,946. If these cost savings are projected to 3 more years (to 5 years), they could amount to $22,365 per participant, resulting in a cost-benefit ratio of 1:1.13. That is, for every taxpayer dollar invested in the program, there is a $1.13 return after 5 years. [12]."

Lessons learnt

In 2009, the Center for Court Innovation interviewed Judge Korey Wahwassuck, who co-launched the court when she was a tribal judge.[13]  In that interview, she described where the idea of the wellness court originated:

"In late 2005, Judge John Smith from the Cass County District Court and Reno Wells, who is the director of probation for Cass County, approached the chairman of Leech Lake Tribal Council to get a DWI court started. At the time Cass County was one of the most deadly counties for drunk-driving fatalities in the state. People were just coming back through that revolving door. A lot of the people who kept coming back were our tribal members. Cass County wasn’t having any success addressing their underlying problems. There was a general frustration among tribal members, not only because people were coming back through the system, but because there was a feeling that the state courts weren’t helping. The county was looking at starting a drug court, so Judge Smith approached the Band and said, “We’re going to do this and we can’t be successful unless we have your help. Will you partner with us?” This was one of those “right time, right place” sort of things, because I happened to be in the Tribal Council offices that day. It was before I took the bench; I was still a tribal attorney. As soon as the judge and the probation director left, the question was, “So what do they want to do to us now?” There was huge mistrust of the state system. It all gets down to that lack of understanding. I told the chairman that I thought it was a good idea because the drug court model works and it’s a great way for the Leech Lake Band of Ojibwe to start having a say in what happens to tribal members’ cases. Minnesota is a Public Law 280 state, and the Band has not yet enacted any criminal codes of its own, so all DWI cases are handled in the state court. Before we started our partnership, the Band had nothing to do with these cases. Basically the Band sat around on the sidelines and looked at bad results and continued to dislike the state system."

Judge Wahwassuck went on to explain that when both courts decided to move forward together it was originally done with a “handshake” and goodwill.[14]  While the Tribal Council passed a resolution in support of forming the joint court, they did not enter into a formal agreement for the first year. [15]  And importantly, the joint powers agreement (reproduced at the front of the case study) that was signed in 2007 relied on the simple premise that both the Tribe and the County would exercise their jurisdictions jointly, on the cases that allowed them to, and towards a common set of goals. [16]

Judge Wahwassuck also explained how the model grew to a second wellness court with neighboring Itasca County in 2007.  The Itasca County Wellness Court invited the Tribe to join a planning team from their activities and from there, their collaboration was born.[17]  Like the Wellness Court with Cass County, the Wellness Court with Itasca County operates with both the tribal and state judges jointly take taking the bench – each exercising their own jurisdiction – to work with both tribal and non-tribal members who pass through their program. [18]

She shared that the joint-jurisdictional wellness court has inspired other tribal-state collaborations within the state of Minnesota, while acknowledging at the same time that some tribes remain warry of sharing jurisdiction with state courts.[19]  But she explained that the these models can offer an important intermediate step for tribes still building their courts’ systems so that one day they can handle these case on their own. [20]

The success of the court has brought national recognition and interest.  Both the Cass County & Leech Lake Band of Ojibwe and Itasca County & Leech Lake Band of Ojibwe wellness courts  have won several awards, including the Harvard Honoring Nations Award, the National Association of Drug Court Professionals Cultural Proficiency Courage Award, and the National Criminal Justice Association Outstanding Tribal Criminal Justice Award. [21]

But more importantly, the courts are valued by the community they serve with successes continuing to be logged. [22]  Individuals passing through these programs can experience better health outcomes, employment prospects, opportunities for stable housing, and – critically – family relationships. [23]

Authors

This case has been prepared by Maha Jweied, Pathfinders for Justice Advisor Fellow at NYU’s Center on International Cooperation

[1] Id.

[2] Some of the background and history of this case study is adapted from Maha Jweied, U.S. Department of Justice & U.S. Department of the Interior Report, Expert Working Group: Native American Traditional Justice Practices (September 2014).  The report also provides an overview of indigenous traditional practices in the United States.

[3] A fuller history of the development of this court can be found at Korey Wahwassuck, The New Face of Justice: Joint Tribal-State Jurisdiction, 47 Washburn L.J. 733 (2008). The Memorandum of Understanding that created the multi-jurisdictional Cass County and Leech Lake Bank of Ojibwe Wellness Court can be found at http://ccllwellnesscourt.files.wordpress.com/2010/10/memorandum-of-understanding.pdf

[4] Aaron Arnold, Interview: Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota, 2 Journal of Court Innovation 405 (2009).

[5] .S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016), citing Zil, Charlene E., Mark S. Waller, Adrian J. Johnson, Paige M. Harrison, and Shannon M. Carey. 2014. Cass County/Leech Lake Band of Ojibwe Wellness Court Walker, MN: Process, Outcome, and Evaluation Report. Portland, Ore.: NPC Research.

[6] Id.

[7] Maha Jweied, U.S. Department of Justice & U.S. Department of the Interior Report, Expert Working Group: Native American Traditional Justice Practices (September 2014); see also https://wellnesscourts.org/files/Joint%20Jurisdiction%20-%20Apr_%202019.pdf

[8] See Cass County and Leech Lake Bank of Ojibwe Wellness Court, General Information, http://ccllwellnesscourt.wordpress.com/general-info/. A flowchart of how the process works can be found by visiting: http://ccllwellnesscourt.files.wordpress.com/2010/10/general-overview-flowchart.pdf.

[9] Lauren van Schilfgaarde, Tribal Law and Policy Institute, Joint Jurisdiction Wellness Courts Presentation (2019).

[10] Id.

[11] U.S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016), citing Zil, Charlene E., Mark S. Waller, Adrian J. Johnson, Paige M. Harrison, and Shannon M. Carey. 2014. Cass County/Leech Lake Band of Ojibwe Wellness Court Walker, MN: Process, Outcome, and Evaluation Report. Portland, Ore.: NPC Research. (Fact Sheet available here.)

[12] U.S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016).

[13] Aaron Arnold, Interview: Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota, 2 Journal of Court Innovation 405 (2009).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Center for Court Innovation Tribal Justice Exchange, Tribal Access to Justice Innovation, Leech Lake Band of Ojibwe Joint Jurisdiction Healing to Wellness Courts, available at: http://www.tribaljustice.org/places/specialized-court-projects/leech-lake-band-of-ojibwe-joint-jurisdiction-healing-to-wellness-courts/.

[22] Id.

[23] Id.

Kistemaker, L. (2021). Rechtwijzer and Uitelkaar. nl. Dutch Experiences with ODR for Divorce. Family Court Review, 59(2), 232-243.

Table of Contents

Community Justice Services - Policy brief
1. Justice close to home: A gamechanger?
2. Critical Success Factors
3. Outlook

Cases:

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