An Oregon law that went into effect this month provides full faith and credit for tribal court judgments. This means that if a judge from a federally recognized tribe requires child support or grants a restraining order, those decisions will be better enforced off reservation as well. Chief Judge William Johnson of the Umatilla Tribal Court has been working toward this goal for years. He joins us with details.
The following transcript was created by a computer and edited by a volunteer.
Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. A new law went into effect in Oregon at the beginning of this year. It means that judgments in tribal courts will now be enforced outside of tribal land. So for example, if a judge from a federally recognized tribe requires child support or grants a restraining order, those decisions will have a better chance of being enforced off reservation as well. William Johnson is the Chief Judge of the Umatilla Tribal Court. He has been working toward this goal for years now and he joins us with the details. William Johnson, welcome to Think Out Loud.
Chief Judge William Johnson: Good afternoon, glad to be here. I want to say something in my own tribal language if that’s okay?
Miller: Please.
Johnson:So what I just said, I’ll translate and I don’t think it includes any cuss words or curse words basically is, ‘Hello to family and friends and OPB, and how are you doing?’ So that’s basically what I just said.
Miller: No cuss words Indeed. Well, thank you for that. I thought we could start with the timing here because I noted in my brief intro that this is something you’ve been working towards for a while. When did you start pushing for this particular change in Oregon law?
Johnson: Well, I’m persistent. It’s been probably 25-30 years. I’ve thought about it, 1994 is when actually there was a law under federal Legislation called ‘Violence Against Women Act’ in 1994, that said that tribal court orders and state court orders should be enforced, that specifically protective orders should be enforced by each jurisdiction, as if they were their own, meaning, they should recognize and enforce them, and get them recognized and enforced in each one’s jurisdiction, whether they crossed state lines or tribal lines or not.
Miller: So that federal law, in 1994?
Johnson: Yes.
Miller: So why then, was a state law necessary?
Johnson: Well, state law is necessary because there’s sometimes lack of communication, lack of cooperation and people travel to other, not just in Oregon, but other jurisdictions. And so our protective orders, like from the Umatilla Tribe, Warm Springs Tribe or other Tribes in Oregon, should be enforced wherever our people travel or wherever people travel that have protection of our orders.
Miller: So, if I understand you correctly, even though this federal law, back in 1994, said that for certain court orders you ‘have to follow it anywhere in the United States of America,’ that wasn’t done just because of a lack of awareness?
Johnson: Awareness, education…not every state, I think they should, or they do, not every state has Tribal communities in it. Oregon has nine, but we used to have about 50 other Tribes that were terminated. So not every state, not every jurisdiction is used to enforcing or knows what a tribal court order looks like. So when someone pops up at three in the morning in Portland or something and says I have a Umatilla Tribal Court Order, if it’s not in the computer system of LEDS which is the Law Enforcement Data System for Oregon, or NCIC, which is the National Crime Information Center for the United States, if it’s not in those computers, which our Umatilla Tribal Court Orders are, but if it’s not in there then the officer who is in the middle of a situation might say I can’t do this until I talk to somebody who knows the law.
Miller: So what would that have meant in practice for a woman, say, who got a restraining order against her ex-husband in a tribal court, but then she or he moved away from reservation. I mean what are situations that you’ve heard of?
Johnson: Well, I’ve heard of a lot, and I guess I’ll say it a different way…is that the severity of what can happen if you don’t enforce these protection orders, or if you aren’t aware of them, is that the safety of the people for whom these orders are issued is in peril. So the safety is the most important thing of any person, not just Indian people. So what happens is, and I think theoretically, like driving suspensions, means that if we suspend somebody on our reservation because they have three or four driving under the influence of intoxicants charges or convictions that suspension wouldn’t be recognized in Oregon, if it wasn’t for something like this law. Protective orders are the same way, divorces, child support. It was kind of a list in my head of what is usually enforced, but basically, what that means is things wouldn’t be enforced that should be, and that had due process and that was adjudicated already either in a tribal or state court depending on where that person is traveling.
Miller: If it is the case, as you’ve noted, that really these should have been enforced all along under federal law. What is in place now, to make sure that the same thing isn’t going to happen even if there is now a state law mandating the same thing. In other words, how is the state law going to make a difference if a federal law didn’t?
Johnson: Well, one thing that puts it on the books in the state of Oregon, I think it should be nationwide, which it is under VALA,
Miller: The Violence Against Women Act
Johnson: …Against Women Act is nationwide. But in Oregon, basically, Senate Bill 183, which went into effect January 1, 2022, just recently, basically makes the recognition and enforcement of tribal court orders and state court orders actually, on reservations required and enforceable and it doesn’t have to be in a computer system. So that’s one thing it does. The other thing it does is it requires education of law enforcement, City attorneys, county attorneys, any law enforcement capacity that needs to know about this would be educated and will be. I think Sarah Sabri in the Oregon Attorney Generals’ our department of justice is one that’s leading that charge, and would be educating law enforcement officers of what they need to do. And I think people are cooperative, it’s not that they’re fighting that they should enforce it. It’s just that they’re not informed.
Miller: I wonder how much of this is a technical question though, you said that it has to be enforced even if it’s not in the computer system. But your examples at the beginning showed at least to my nonlegal ear, just how important these computer systems are. Your first example was at 3:00 AM, if a police officer pulls somebody over and they look in their system and they don’t see a court order there, then they’re not sure what to do. Are there ways to make it automatically show up? So if a tribal court judge, anywhere in the state, makes a ruling, then soon after, any State Police Officer would have access to that court order.
Johnson: I was thinking about it for a long time. At one point I thought maybe we should have an app of tribal court orders updated weekly or monthly or whatever but at least weekly. But the computer system is what’s already set up the LED System in Oregon and the NCIC in the nationwide, the problem with something like that being required to be input into a computer system like that is not all tribes, and I don’t not sure about the state either, has capacity or infrastructure to put that order in. We do and it’s somewhat costly to set up that infrastructure and this Senate Bill 183 doesn’t require that. It’s in a computer but it does require that if the officer at three in the morning in Portland is confronted with this situation that they look at paperwork that the victim may have on them if they’re conscious, and be able to see if on the face of that written paperwork, that there is a valid order that should be enforced. And the officer would not be liable, I think under this law, it’s the same, thing, would not be liable if you mistakenly enforced an order that wasn’t really in effect. So officers are real touchy about that and I don’t blame them. And so there has to be a way of getting it enforced. I would say everything should be in the computer but not everybody has that access.
Miller: As you noted, you are tenacious and you worked on this for decades. What is next on your list, what would you like to achieve in terms of changes to state or federal law?
Johnson: Well, there’s a lot of things.
[Mutual Laughter]
Miller: We have three minutes.
Johnson: Okay, Indian people. I guess one thing my mantra lately is, and not lately, but when I first came back to the Reservation, we had a law called Public Law 280, which basically gives civil and criminal jurisdiction over reservations to the state and specifically Oregon was included in that. During my years as a judge and as an attorney for our tribe, we have retro-ceded or taken back that jurisdiction from the state of Oregon under criminal law, not necessarily civil law. I think in my mantra, is that Public Law 280, which is this law back in 1953, part of the Termination Policy, then to get rid of Indians, get rid of jurisdiction, and turn everything over to the states was wrong, unfair, unequal and should be repealed. I think the state of Oregon, either the Governor or the legislature or somebody, should just take it upon themselves and say, we don’t want to do this anymore and let the Tribes do what they need to do, and have that jurisdiction or exercise that jurisdiction. There was some conversation that if that happened, what would happen to the tribes that didn’t have a police force or a court or whatever. And I’m saying the same thing that’s happening now, which is nothing. A lot of times under Public Law 280, state, county or local city law enforcement officers aren’t extra funded to cover the reservation. And if that’s not happening now, then if we repeal 280, it’s still going to stay the same, and you’re not losing any money. I think it would be not just a gesture but an excellent action by the Tribe in the time of equality, diversity and inclusion, to repeal that law. So I’ll stop there.
Miller: Just briefly in the minute we have left. Is that something that the state could do on its own or if this is a federal law, are you really just reliant on Congress?
Johnson: No, there’s a process for retro-cession where the state could offer back to the tribes or to the federal government under 280 and get out of that business. They don’t have any business anyway because when 280 was passed, there was no appropriations or anything given to the state. They just said, you now have jurisdiction over tribes that don’t have courts and don’t have that capacity. We’ve exercised that and retro-ceded some of it, but it can be done by the state. It can be done by action from the tribe. It can be done by the federal government. I’m not sure it can be done just by the federal government, but I guess it could. I’ve seen it done from the state, from the tribe. We did it, some other tribes have done a retro-cession and I just think it’s a good idea if Oregon could do that.
Miller. Thanks for your time today. I appreciate it.
Miller: That’s William Johnson, Chief Judge of the Umatilla Tribal Court.
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