Theresa M. Pouley: Reclaiming and Reforming Justice at Tulalip

Native Nations Institute

Tulalip Tribal Court Chief Judge Theresa M. Pouley shares the long-term, positive effects of the Tulalip Alternative Sentencing Program on the Tulalip tribal community.

Native Nations
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Pouley, Theresa M. "Reclaiming and Reforming Justice at Tulalip." Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. March 26, 2008. Presentation.

"I am Theresa Pouley. I'm a judge. I've been a judge for a long time, only in tribal courts. That's the only place I ever wanted to be a judge. And I've been a tribal court judge for ten years; six of those years were as the chief judge of the Lummi Nation. So that almost is a credential all in itself. I'm honored to be here today. I rarely get to speak in front of so many council people. It's not a good spot for a tribal court judge, usually. I'm honored to be associated with Tulalip's tribal court. I was really honored and humbled to be awarded High Honors at the Honoring Nations program for a tribal court program. I'm here to share that experience with you today about Tulalip's alternative sentencing program and hopefully we can learn some lessons from it.

Every day I think about Tulalip and its justice system. Most judges in tribal courts think about those issues all the time. At Tulalip, whenever I think about it and whenever I give a presentation like this, I always stop for a second and see if I can come up with a pearl of wisdom from our ancestors. So today I thought about it and there's an old Shenandoah proverb that I think fits Tulalip's alternative sentencing program. It says, 'It's no longer enough to cry peace. We have to act peace, live peace and live in peace.' So when I think and talk about the alternative sentencing program I always do it in those three ways. How do we act peace? Let's talk about the history of Tulalip. Where did they get to where they are today? Let's live peace. What's Tulalip doing now that's different and useful in resolving some of the issues that are facing our communities? And the last one is how do we live in peace? What are the lessons that we learn from that so we can move into the future?

So let's start with the history. And I like to go way back when I talk about Tulalip. I read a bunch of stuff about Tulalip -- I'm actually a Colville tribal member, which is a cousin on the other side of the mountains in Washington State. So I went about the business of learning about Tulalip. Tulalip is historically a fishing community. That's why that picture is up there and it always reminds me of who I speak. They were a very peaceful people. All of their disputes were resolved by families or resolved by the elders in their communities and almost every Indian agent, non-Indian person who came to Tulalip said the exact same thing. They're a peaceful people. Now just like all the rest of the Indian nations -- and that includes everyone that you're at -- that was pretty badly interrupted in the late 1800s. And Tulalip's system of problem solving went from that dispute resolution that was family and community based to being a system based on punishment and prison. Doesn't make any difference what tribal jurisdiction you're from because the United States Supreme Court decided in Ex Parte Crow Dog, which sort of took all of Indian nations and put us on the same page, that the way that we did justice wasn't right; that we needed to do it in a system where there was a trial, where there was consequences and where there was punishment. Now the results are exactly the same. In 1999, the Bureau of Justice Assistance, for the very first time, came out with crime statistics in Indian Country. And for all of you as leaders you know them; you live them every day. We have two times the rate of violent victimization of Indian women in Indian Country than in any other population. We have two times the rate of tribal members in jail for drug and alcohol-related offenses. We have two times the rate of alcoholism that causes, and as a matter of fact as high as, seven out of 10 violent crimes are caused while our relatives are under the influence of drugs and alcohol. Those are alarming statistics. And it doesn't make any difference if you are living in South Dakota or you're living on the Tulalip reservation, it's the same for all of us. That's the consequences of a system of punishment and prison. Tulalip in particular had sort of a double whammy. Washington's a Public Law 280 state so not only did we have the federal government coming in and dictating how we were going to take care of problems in our community but we also had the state government coming in. So not only did we have the feds prosecuting and putting people in jail from a punishment and prison perspective but we also had the State of Washington coming in and taking tribal members and punishing them and putting them in jail. And 57 percent of the Native Americans who were actually put in jail because of a drug- and alcohol-related crime are going to be back in jail within that same year.

So Tulalip, who was really spurred by its economic development -- I don't if any of you, have any of you been to Tulalip? They have the most beautiful facilities. They have a beautiful casino, an outlet mall; they have a Walmart. That's pretty exciting in Indian Country. So they took this economic development and rather than paying it out to tribal members in per capita said, "˜We can do this better. Enough is enough. We're tired of tribal members going to jail. We're tired of a concept of prison and punishment so we're going to take it over.' In 2001, so this is just seven years ago, Tulalip retroceded all of its criminal jurisdiction from the state of Washington. And that's a big deal. Tribal court went from [a] one-day-a-month court system to 1,100 cases almost overnight. In 2001, when those cases started coming in, my boss was the chief judge at Tulalip and he did what we're trained to do as lawyers in developing tribal court systems. He implemented a system that gives everybody due process, notice and an opportunity for a hearing and guess what was happening? You can't take the state system of punishment and prison and put it in a tribal community and expect different results. And fortunately for me, my boss knew that. So he started changing the system just a little bit at a time. He would sentence people, suspend that sentence and then of course require they get drug and alcohol treatment, education, GED and then of course send them on their way. A year later they'd come back for a criminal review and guess what, they didn't do any of that stuff, right?

So that's the second one. How do you live that peace? So what did Tulalip differently? Judge [Gary] Bass just started hauling everybody in every 30 days. There's a joke at Tulalip that if you come to tribal court, get a divorce, we're going to give you a UA [urinalysis]. Want to write a will? We're going to give you a UA. You're in trouble?We're going to give you a UA. Why would you do that? Because it's absolutely critical to address the underlying cause of the crime, and the underlying cause is unresolved drug and alcohol abuse in over 80 percent of the cases at Tulalip. So you've got to identify it early so if you do a UA, you can suddenly see if somebody has a substance-abuse issue because Tulalip is right on the I-5 corridor, there's lots of drugs that are available on the Tulalip reservation. Meth is one that just scares absolutely everybody in the community.

So you've got to figure it out. If you come in and you actually are arraigned because you're accused of a crime, you will have to take a UA. Now we won't use it against you -- as the judges -- but we want to know, are you using drugs? Do we need to get you treatment? And we'll have a CD [chemical dependency] evaluation done before you even get to trial. If you go into custody in the jail, because you're a danger to the community or to yourself, you're going to get a CD evaluation while you're in jail [because] we want to know what the underlying cause of the problem is. You're going to come to court every 30 days and you're going to answer to the judge. And you're not just going to answer in a bad way. So when you say, Judge Pouley, "˜I did the best I could to get to my CD evaluation but I missed it.' Judge Pouley's not going to say, "˜Okay, go to jail for the next six months,' [because] that doesn't work. I'm going to say, "˜Okay, go get your CD appointment, bring me back the card and come back to court today,' because we have to engage people in that process. Tulalip's alternative sentencing program and alternative sentencing idea is to hold individual offenders accountable for getting better. 'Do you have a job?' 'No.' 'Okay, well, before you come to court two weeks from now you bring me some proof that you stopped at the TERO office or that you stopped to get your GED or that you're doing job training and if you do, I'm going to tell you good job from the bench,' because you want to encourage the positive and have immediate consequences for the negative behavior.

Now that expanded at Tulalip, because we still had a variety of people who were sort of our revolving door of justice people. You know who they are. The ones who come in three or four or five or six times in a year because despite our best efforts, they just can't kick a disease. It's recognition that it's a disease, that a judge can play a crucial role in diagnosis and treatment of a disease. In 2005, the chief of police at Tulalip looked around and said, "˜Wow, this is working.' So he didn't ask the chief judge. He went to the tribal council and he told the tribal council that they should plan a drug court, that they should require all of the departments at Tulalip to come together to plan a court system that was responsive to the needs of their community. And in 2005 the tribal council, the board of directors at Tulalip, passed that resolution. Chief judge didn't say, "˜Oh, no. We're not going to hear that resolution from the tribal council.' Chief of police didn't say, "˜Oh, no. We're not going to send anybody.' We all have the same problems and we all need the same solutions. So Chief Judge [Bass] and I went about the business of coordinating those meetings. And out of that a wellness court was born.

Now you just have to change everything, right? So you can't have a system of punishment and prison. You have to have a system of praise when you do a good job and accountability, immediate consequences when you don't. You have to have goals for your individual clients. You have to call them clients and not defendants. You have to change the whole way you think about the system and the wellness court really was sort of the final vehicle to do that. The wellness court is a group of people who sits and meets once a week about all of our clients in the wellness court. It includes everybody. It includes CD treatment providers, mental health providers, domestic violent perpetrator, treatment providers, but it also includes GED, job training, Northwest Indian College, casino employment, TGA who grants licenses. All of these people come together once a week to ask this very simple question. How do we help our client get better? It's a pretty amazing tool, but it's only amazing if you take the very last step. And at Tulalip we sort of did it backwards but we gave it a name. It's called [Tulalip language] -- the court giving the means to get stronger. If all of the people involved in the justice system have that perspective, it fundamentally changes the way that business gets done. It's not a western-style court system transplanted on the Tulalip reservation. It's a Tulalip court system to try and help all of our relatives get better. It's a pretty big change in just the way you think about things. And even though I'm a Colville tribal member, I have to tell you this, I've got plenty of relatives on the Tulalip reservation and that's true for most of us. Everyone in our communities is our relatives and you have to be vested in helping them get stronger.

So what's the last thing? How do you live in peace? What's the lessons we learn from it? First thing you guys are probably going to ask me is, 'Does it work? If you just change everything, does it actually work?' Well, interestingly enough, Tulalip's only been hearing cases -- remember I said -- since 2001. So in seven years, 1,100 cases we started. We had less than 400 criminal filings last year. That means it works. The number of repeat offenders at Tulalip is down 25 percent each year for two years running -- changing the way that we do business. This year in 2007 -- and I just did the statistics, I never thought this could happen -- that the number of criminal cases filed went down another 12 percent, because people are figuring out that the court's going to hold you accountable. So don't make any mistakes about that. If you're not doing what I asked you to do, you are going to spend some time in jail. But the goal of it is different. It's not punishment. It is a time for you to be individually accountable on a short-term basis. So you give me a positive UA, you go to jail for a day, not for six months. I don't know anybody who ever learned how to be clean and sober in jail. But you can sure teach that lesson if you use it as a tool.

So 12 percent decrease in crime just between 2006 and 2007, and then we had a really interesting thing happen. Our number of civil cases -- which is cases where people don't go to jail, cases where you come to resolve child custody disputes, get child support, where you want to sue for damages -- guess what happened to those? For the very first time in 2007 they were higher than our criminal cases. Now why does that matter? A lot of people say, "˜Well, geez, that just means you have to go to court and court's a terrible place.' No, because at Tulalip you can choose. You can go to tribal court if you want or you can go to state court. You don't have to come to tribal court. Six hundred and one people, 601 tribal members last year voluntarily came to tribal court instead of going to state court. Well, that's a big deal. Some of those 601 people came to get restraining orders or filed civil suits against each other instead of beating the crap out of each other. That's a good day.

So not only do you have a decrease in crime and an increase in the number of civil cases, but do you know that 80 percent of the criminal case load at Tulalip, so about 400 cases, 80 percent of those have a current drug and alcohol evaluation? Almost all of them are compelled into treatment. And the amazing thing is when people start into treatment you get so much information. Most people don't choose to be drug or alcohol addicted. There are mental health issues that need to be addressed, so almost all of our clients in wellness court also are seeing mental health counselors and they're resolving issues that are maybe centuries old. You also have to make sure that you get people a job.

My favorite sort of success story at Tulalip actually is about a person. So we took in wellness court, [Tulalip language], the hardest of the hard core: people who had had two or more cases filed a year and had been unsuccessful in probation in six years. And in 2006, no, 2007 -- last year -- we had two graduates, people who had been clean and sober for 18 months who are now working when they never worked before. We have one young lady who just moved into the fifth stage who is probably 25 years old. She was in jail probably for six months of that timeframe. You know what? She's been clean and sober for over a year. She got her kids back. She is a great parent and she's taking parenting classes and her significant other, who was also in trouble with the law all the time, they're together raising their own children in a clean and healthy way. So how do you do that? How do you accomplish that objective?

It's sort of what I call the four C's and actually I think there's six of them. At the end of the PowerPoint presentation it gives you all six of them. But I sort of lump them together in about four. You have to have communication and coordination of your services. Your law and justice system must be part of the whole tribal system. You have to be prepared as tribal council people, and tribal council judges have to be prepared to stand shoulder to shoulder with their elected officials to say, 'Enough is enough,' to say that it's time to help our relatives heal. [Because] I have to tell you, it's not all roses. We've got great statistics, but if you start holding tribal members accountable, what do you think the tribal membership says? So it's important that you're all on the same page. You have to stand together. Your tribal court system is part of your government every bit as much as any other department. And the fact that we have separation of powers doesn't mean we have a separation of problems. You and I all have the same problems. It doesn't mean that we have separation of solutions. Because I'm a judge, I know a variety of things about promising practices. Because you're tribal council people, you know a variety of things. If we put our heads together, we can get it done [because] it's really for that young lady and her husband and their kids, because we get to break that cycle of drug and alcohol abuse and poverty to give them a real future. So it's worth the effort, but you've got to be prepared and you have to be able to stand together. You have to communicate it to everybody. So it's absolutely critical that everybody in the community knows what's happening [because] if they don't, it looks a little funny. And people don't necessarily like changing the justice system. There's a lot of people who think Western-style justice systems all have to look the same, so you've got to communicate. So you've got to coordinate, communicate. You absolutely have to be corrective. So you have to have somebody who's in the position to say, "˜You did a great job. I am so proud of you. I can't believe you've been clean and sober for a year. Your kids are so proud of you. I know your grandma's so proud of you. Good job.' [Because] too many times nobody bothers to tell people good job when they do a good job. We happily toss them in jail when they don't, but it's got to be corrective. So you have to reward good behavior, but you also have to be prepared to send people to jail for the consequences if they're not doing what you need them to do. And it has to absolutely be comprehensive. That's the last C. You've got to look at it in a holistic way. You can't just do it from one department perspective. You really do have to all stand together 'cause you know what happens when we all stand separate, right? It's happened over and over and over again. About this, the future's now. About this problem of drug and alcoholism and crime on Indian reservations, we need to take control [because] that's what the Shenandoah proverb says, right? "˜It's no longer enough to cry peace. We've got to act peace, live peace and live in peace.' I think we can do it. So call your tribal court judge. We can do it together. We're all part of the solution. Thank you very much." 

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Tulalip Alternative Sentencing Program

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