Wednesday, March 21, 2018

Chief Judge Leroy Not Afraid speaks to visiting members of the Colorado court system on the Indian Child Welfare Act from his courtroom chambers in Crow Agency on June 19, 2017.Associate Judge Michelle Wilson speaks on the importance of upholding Crow tribal law during the Jan. 13 general council meeting at the Multipurpose Building in Crow Agency.


Crow Judicial Branch struggles with federal contract accountability
When Michelle Wilson arrived to Crow Tribal Court on Dec. 5 to start her four-year term as a newly-elected associate judge, she happened to enter the building the same day as a monitoring team from the Bureau of Indian Affairs. According to the BIA’s report, released Jan. 8, they had found multiple financial issues in their contract with the Judicial Branch for Fiscal Year 2017 and believed “a hostile work environment was being created” for Wilson.
“Reviewers were specifically told by [Tribal Court Administrator Ginger Goes Ahead] not to talk to the new judge, as the review was for the FY 2017 contract,” the report states. “The TCA proceeded to inform the review team that the newly-elected judge did not meet the qualification to be a judge and made derogatory comments about [her ethics].”
Wilson, recently a legal advocate certified in both Crow and Northern Cheyenne courts, said she was confused by this exchange.
Once she began her term, Wilson said she soon was separated from other court personnel. She entered her office – a former bailiff’s room – and found conditions she believed were not suitable for an elected official: it had no heat, no working lights, no printer, no working computer and the paint had three colors.
On Dec. 4, the day she was sworn in, Chief Judge Leroy Not Afraid drew up a court order forbidding her from entering any place in the judicial department other than her office and her court – or accessing individual case files – without “the express written permission of the chief judge.”
“Violators of this order, including the trespasser and any person who has assisted in unauthorized access,” he wrote in the document, “will be subject to contempt proceedings and may be subject to criminal prosecution.”
At first, Wilson said, she thought court personnel were upset with her for winning the Nov. 4 general election. She had, after all, garnered enough votes to defeat former Associate Judge Sheila Not Afraid, the incumbent candidate who also is Leroy’s wife. Because Wilson was elected, along with incumbent Associate Judge Kari Covers Up, the position’s two slots were taken and Sheila no longer could serve from the bench.
Leroy had run a joint campaign with Sheila and Covers Up, saying shortly before Election Day that his “first and foremost goal is to keep this team in place.” Even though Leroy and Sheila are married, both have said in past interviews that their court lives and social lives are kept strictly separate.
Aside from Wilson, Judicial Branch personnel declined comment for this article.
“This team…will continue the mission to deliver justice and fairness,” Leroy said several days before the election results were tallied. “We are going to continue to make sure that folks are held accountable. That’s the bottom line.”
Wilson had run in the election with the expressed goal of improving the tribal court system by correcting “problem areas,” such as an alleged “imbalance in sentencing and fines.” As an example, she cited from a past interview an instance where a woman with five DUIs and a woman with one DUI each received the same sentence on the same day in court – “45 days flat.”
As time went on, Wilson continued, she began to consider whether the Judicial Branch might be hiding something from her. BIA reviewers concurred, alleging Leroy’s order was written to limit their review “and the new associate judge’s access to the court and court records.”
Judicial compliance
To start 2017, his first full year in office, Chairman Alvin “A.J.” Not Afraid of the Crow Executive Branch – Leroy’s cousin – wanted to test the Judicial Branch’s compliance with tribal and federal financial requirements. As such, he requested the BIA report, carried out by their Rocky Mountain Regional Office.
“I believed that a review of Crow government was important,” he wrote in an email. 
Financial management by the Judicial Branch, according to the report, was “unsatisfactory” – tribal court had expended a total of about $6 million for FY 2017, but only could account for about $4.4 million via cash receipts. Their remaining balance for the year was about $125,000.
Reviewers had 14 findings in their corrective action plan for the court to solve, many of which involved fixing an alleged lack of training, organization or clear financial policies. In their final point, reviewers told the court to cease the “hostile work environment” being set up for Wilson. A full list of the action plan’s findings are located on this article’s inset, “Fourteen issues.”
Among these findings, A.J. expressed a disagreement with the action plan’s eighth point regarding the purchase of a 2016 Chevy Tahoe for about $44,800. The vehicle currently is missing and the BIA wants it located – otherwise, the purchase will be considered a “disallowed cost” and a bill for collection sent out.
“This issue needs to be addressed by the tribe,” the report states, “since accountability is a problem.”
According to the report, tribal court bought the vehicle. A.J. believed otherwise, writing: “Under investigation, I can find no evidence to support the conclusion that a vehicle was, in fact, purchased by the Judicial Branch.”
When questioned by a reviewer, TCA Goes Ahead said the vehicle “was purchased under the previous administration” – a statement supported by A.J. – and she “had no idea where it was.”
Financial documentation, the report states, shows the vehicle was bought using federal funds from the BIA through Public Law 93-638. However, it continues, Goes Ahead believed it was purchased with the tribe’s general fund, “therefore, it was not the reviewer’s concern.”
“It appears that general funds and 638 funds are comingled…the TCA indicated she was going to move the judges’ salaries to general funds and then we wouldn’t have to review them,” the report states. “She had indicated on other budget items that were questioned that she could move them to the other category without any formal procedure or approval.”
In order to find out how the mixed funds “come out in the wash,” Crow Legislative Legal Counsel Dawn Gray said, an audit will be needed regarding the 638 monies. Combining 638 and general funds, she added, can complicate record-keeping and make it more difficult for the tribe to obtain grants in the future.
“If one funding source does not know what the other funding source is providing,” she said, “then it’s difficult to demonstrate need.”
Furthermore, the report notes – as the previous one did in 2016 – that “the chief judge and TCA have credit cards that are reconciled to the tribe’s general fund.”
“There is an appearance that the tribe’s general fund is a bottomless pit,” the report states, “and the Judicial Branch can expend without a check and balance system.”
A question of salaries
Leroy, the report states, made an annual salary of $100,000 in FY 2017. In addition, Associate Judges Covers Up and Sheila made annual salaries of $83,000.
Crow Law and Order Code states a chief judge “shall be paid an annual salary” of $50,000 and an associate judge an annual salary of $40,000 – this payment may “not be diminished or reduced” during their four-year term. According to Wilson, her annual salary was below that of a court clerk and less than $40,000 per year.
The report alleges the chief judge, and Associate Judges Sheila and Covers Up, were paid “more than what is authorized,” but the code’s wording does not specifically prohibit an increase in the judges’ salaries. All tribal judges at the time of the report had 11 years’ experience in law.
Leroy’s interpretation on the salary to reviewers was the stated amount earned by judges was a “baseline and not a cap.”
The report’s writers could not get approval to comment on this matter at press time.
According to Leroy, tribal judges could be paid more than the specified amount, as they are receiving money from two sources – the general fund and 638 contract. This may have come as a surprise to contract administrators because, according to Gray, “Each funding source was not entirely informed of the other funding source.”
Action plan solutions
To straighten out the current situation, A.J. met with the BIA Regional Office on Jan. 25 to address their report. Shortly afterward, he wrote in an email that he “was advised to focus my response on” the 14 problems cited in the report’s action plan.
He’s optimistic that, working together, the Crow Tribe can solve the issue.
“After having received the Regional Office’s 2017 review, I look forward to working with our chief judge and his staff to revise applicable policies and procedures that need updating,” he wrote. “As noted in the review, the deficiencies listed are correctable.”
As for Judicial Branch members, getting into compliance may prove difficult. The report noted both Leroy and Goes Ahead “were noticeably perturbed and challenged” the team’s questions.
“[The] TCA at one point indicated she would prefer not having 638 funds, so that she wouldn’t need to be monitored,” the report states. Reviewers noted that the tribe could “utilize other resources” to fund operations if they chose.
Leroy, when asked “who he was accountable to,” stated that he provided a budget to the Crow Legislative Branch.
In a future issue, the Big Horn County News will examine the legislature’s response to the report and, based on senator testimony, whether they will revive the Crow Tribal Justice Improvement Act of 2017.