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Discretionary Transfer of Cases to Tribal Court James Botsford, Wisconsin Judicare Paul Stenzel, Stenzel Law Office Civil Law Seminar Thursday, December 4, 2008 Appleton, WI
Overview n n n 1. Introduction to Indian Tribes in Wisconsin 2. PL 280 and Bad River Tribe v. Teague, 2003 WI 118 3. Petition 7 -11 and Wis. Stat. § 801. 54
Introduction to Tribes n n n 11 federally recognized Indian Tribes in Wisconsin Sovereign entities U. S. Constitution does not apply to Tribes when dealing with their own members. Talton v. Mayes, 163 U. S. 376 (1896) Each Tribe is unique Treaty-based relationship
Introduction to Tribes n n n 6 Chippewa bands – Bad River, Lac Courte Oreilles, Lac du Flambeau, Red Cliff, Sokaogon, St. Croix. Stockbridge-Munsee (Mohican) Menominee Oneida Ho-Chunk Potawatomi
Introduction to Tribes n n n Several tribes have their own web sites. Wisconsin Judicare also maintains a listing of information about tribes and their justice systems. www. judicare. org
Introduction to Tribes n n n Bad River Tribal Court PO Box 39 Odanah, WI 54861 Telephone: 715 -682 -7107 (ext. 1544) Fax: 715 -685 -2600 Chief Judge: Ervin Soulier Senior Associate Judge: Alton Smart Associate Judges: Joe Corbine and Richard L. Ackley Tribal Attorney: Carrie Miljevich Prosecutor: Erick Arnold Clerk of Court: Robin Powless Appeals: Three Judge Panel from Wisconsin Tribes, Great Lakes Fish & Wildlife Tribes and/or Tribal Judges Association. Admission Requirements: Bar Exam and Payment of a $25 fee Court's Source of Power: Tribal Constitution and Tribal Ordinance Subject Matter Jurisdiction: General civil including domestic abuse, divorce, child protection, conservation/Natural Resources, truancy, curfew & and landlord/tenant.
Introduction to Tribes Forest County Potawatomi Community Court PO Box 340 Crandon, WI 54520 Telephone: 715 -478 -7255 Fax: 715 -478 -5805 n Judge: Eugene White-Fish Associate Judge: Jeryl Perenich Tribal Attorney: Jeff Crawford, A. G. and Jo. Deen Lowe, Asst. A. G. Interim Tribal Court Advisor: Paul Stenzel Prosecutor: Edward Sheu (Interim) Clerk of Court: Penny Carter Deputy Clerk: Jennifer Van. Zile Appeals: Process in formative stage Admission Requirements: By Court Rule Court's Source of Power: Delegated by General Council Subject Matter Jurisdiction: Name changes, Guardianships, Employment Issues, Small Claims (Up to $5, 000), Child Protection, Child Support, Garnishments. For particular questions, check with the Clerk of Court. Personal Jurisdiction: Members Tribal Membership Criteria: In Constitution; 25% Potawatomi Blood
Red Cliff Tribal Courtroom
Public Law 280 n n Enacted in 1953 28 USC § 1360; 18 USC § 1162 Grants State of Wisconsin criminal jurisdiction on Indian reservations (except Menominee) Also grants limited civil jurisdiction: Civil adjudicatory, Bryan v. Itasca County, 426 U. S. 373 (1976) n Not civil regulatory n
PL 280 n n n Case law addressing civil regulatory / criminal prohibitory difference: State v. Lemieux, 106 Wis. 2 d 484 (Ct. App. 1982); rules governing uncased firearms are civil/regulatory State v. St. Germaine, 150 Wis. 2 d 171 (Ct. App. 1989), the Court of Appeals ruled that Operating After Revocation third and fourth offense and operating while intoxicated, third offense, were criminal/prohibitory.
PL 280 n County of Vilas v. Chapman, 122 Wis. 2 d 211 (1985); Wisconsin Supreme Court adopts the “tradition of self-government” test.
PL 280 n n St. Germaine v. Chapman, 178 Wis. 2 d 869 (Ct. App. 1993); court of appeals ruled state court did not have jurisdiction to hear a domestic abuse issue where the Tribe had a domestic abuse law in place. State v. Cutler, 1994 WL 656820 (Wis. App. ), (unpublished); fire works are civil/regulatory.
PL 280 n State v. Burgess, 2003 WI 71, 262 Wis. 2 d 354; Wis. Ch. 980 is criminal prohibitory.
Teague case and protocols n n Because Public Law 280 gives state courts civil adjudicatory jurisdiction, it is possible to have overlapping jurisdiction in civil disputes. This happened in Teague v. Bad River Tribe, 2003 WI 118.
Teague case n n The Wisconsin Supreme Court ruled that when a case is pending in tribal and state courts simultaneously, the state court judge must confer with tribal counterpart and make an allocation of jurisdiction. 2003 WI 118. Court must apply 13 factors.
Teague case n As a result of Teague, the Ninth and Tenth Districts and the tribal courts in those districts developed and entered into protocols governing how overlapping jurisdiction would be handled.
Passamaquoddy Tribal Courtroom
Transfer to Tribal Courts n n Petition 7 -11; Discretionary Transfer from circuit court to tribal court Public hearing January 8, 2008 Rule approved 7 -31 -08 Creates a new state statute § 801. 54
§ 801. 54 n n Elements of the statute: 1. SCOPE: Where concurrent jurisdiction, circuit court can transfer a case subject to factors.
§ 801. 54 n n 2. DISCRETIONARY TRANSFER: If concurrent jurisdiction, THEN can transfer either by: Stipulation of parties OR n Application of Teague factors n
§ 801. 54 n n 3 STAY OF PROCEEDINGS: When circuit court transfers, it issues a stay. Court can modify the stay and take any further action in the interests of justice Stay can last up to 5 years After 5 years, case is dismissed without notice
§ 801. 54 n n n 4. Decision to stay can be appealed as a matter of right 5. Circuit court retains the filing fee 6. Nothing in the statute alters, diminishes or expands the jurisdiction of either court.
§ 801. 54 n COMMENT: In considering the factors under sub. (2), the circuit court shall give particular weight to the constitutional rights of the litigants and their rights to assert all available claims and defenses.
§ 801. 54 - DISSENT n n Roggensack, Prosser & Ziegler Four reasons for dissent: 1. Rule is “inadequate and misleading” in regard to subject matter jurisdiction 2. Rule impermissibly alters the substantive rights of tribal members and nonmembers.
§ 801. 54 - DISSENT n n 3. Rule undermines federal and state constitutional and statutory rights of litigants 4. Not enough information presented to court about substantive rights and civil procedure that are available in tribal court.
§ 801. 54 – Future: n n Effective January 1, 2009 How to deal with comment Forms are being developed Communication with tribal judges
APPENDIX n n Ho-Chunk Nation PO Box 70 Black River Falls, WI 54615 Telephone: 715 -284 -2722 and 800 -434 -4070 Fax: 715 -284 -3136 Chief Trial Judge: Todd R. Matha Associate Judge: Amanda L. Rockman Traditional Court: Donald Blackhawk Attorney General: Sheila D. Corbine Clerk of Court: Marcella Cloud Assistant Clerk of Court: Selina Joshua Tribal Court Attorney: Jennifer L. Tilden, Nicole J. Homer Appeals: Ho-Chunk Supreme Court, Mary Jo Hunter – Chief Justice; Mark Butterfield – Assoc. Justice; Dennis Funmaker – Assoc. Justice Admission Requirement: By Court Rule Court's Source of Power: Constitution Subject Matter Jurisdiction: General civil (by ordinance); Currently child protection; collection of child support; election; other governmental disputes, housing, employment, gaming, torts, contracts, etc. Personal Jurisdiction: Those with tribal interactions Tribal Membership Criteria: Persons on official census roll and descendants of those persons if the descendants are at least 1/4 Ho-Chunk blood
APPENDIX n n Lac Courte Oreilles Tribal Court 13394 W. Trepania Road Hayward, WI 54843 Telephone: 715 -634 -8934 Fax: 715 -634 -0160 Judge: James Mohr Tribal Attorney: Kris M. Goodwill Prosecutor: Paul Shagen Clerk and Administrator of Court: Jenny Brazil Deputy Clerk: Tammy Barber Appeals: Three-judge panel through WTJA Admission Requirements: Complete admission request form and $100 fee for attorneys/$50 fee for lay advocates Court's Source of Power: Tribal Resolution, Ordinances and Constitution Subject Matter Jurisdiction: Adoption, Civil, Guardianship, Child Custody, Conservation, Divorce, Domestic Abuse, Child Welfare, Small Claims, Landlord/Tenant Name Change, Paternity, Truancy, Traffic Personal Jurisdiction: Tribal members and Non-members depending on case Tribal Membership Criteria: 1/8 Lac Courte Oreilles or 1/16 Lac Courte Oreilles and 1/16 Lake Superior Ojibwe
APPENDIX n n n Lac du Flambeau Tribal Court PO Box 217 Lac du Flambeau, WI 54538 Telephone: (715) 588 -4200 or 588 -4239 Fax: 715 -588 -9240 E-Mail: [email protected] net Chief Judge: Alice K. Soulier Associate Judge: Garold Smith Clerk: Jane Beeler Deputy Clerk I: Theresa Soulier Tribal Attorney and Prosecutor: Terry Hoyt Appeals: Chapter 80; Tribal Court Code; Three member panel of judges; Notice of Appeals must be filed 20 days after judgement entered; Must post bond, filing fee, and transcript deposit. Admission Requirements: Attorneys: Certificate of Good Standing from Wisconsin Supreme Court and fee of $75; Lay Advocates: Submit affidavit and documentation of reasons why they should be admitted. Court's Source of Power: Tribal Constitution Subject Matter Jurisdiction: Civil (includes traffic, child welfare, child support, paternity, housing, truancy, domestic abuse, juvenile drinking, landlord/tenant, Conservation/Natural Resources on and off reservation, and divorce); and CHIPS for children 17 years of age and under, Small Claims, Probate; Criminal (probation by judges) Personal Jurisdiction: Tribal members; limited non-members Indian and non-Indians; and depending on the subject matter. Back to Page Index
APPENDIX n n Menominee Tribal Court PO Box 429 Keshena, WI 54135 Telephone: 715 -799 -3348 Fax: 715 -799 -4061 Chief Justice: Robert Kittecon Judges: Stephan Grochowski, Wendell Askenette Tribal Attorney: Rita Keshena Tribal Prosecutor: Bill Kussel Assistant Tribal Prosecutor: Mercedes Swimmer D. V. Prosecutor: Vacant Clerk of Court: Reynel Tucker Appeals: Menominee Supreme Court Admission Requirements: Attorney: Certificate of Good Standing and fee; Non. Attorney: Certificate of Completion of Paralegal training, fee and meet with Chief Justice. Court's Source of Power: Tribal Constitution Subject Matter Jurisdiction: Criminal, Civil, Juvenile, Probate, Family, Traffic, Conservation and Small Claims Personal Jurisdiction: Menominee Tribal members; Non-members regarding on reservation Small Claims; and pursuant to Inter-Tribal Agreements Tribal Membership Criteria: At least 1/4 Menominee Blood
APPENDIX n n Oneida Tribal Judicial System PO Box 19 Oneida, WI 54155 Telephone: 920 -497 -5800 Fax: 920 -497 -5805 Chief Judicial Officer: Winnifred L. Thomas Deputy Chief Judicial Officer: Leland Wigg-Ninham Associate Judicial Officers: Mary Adams, Janice L. Mc. Lester, Dorothy Ninham, Lois Powless, Anita Barber, Robert Christjohn, Jennifer Webster, Gerald Cornelius and Gary Jordan Staff Attorney: Paul Stenzel Administrator: James Martin Appellate Court: June Cornelius Clerk of Trial Court: Leyne Orosco Deputy Clerk of Court: Norma Brzezinski Appellate Body: Five Judicial Officers Trial Body: Three Judicial Officers Subject Matter Jurisdiction: Civil including Probate, Employment and Contract Personal Jurisdiction: Tribal Members, Employees, Others Subject to Tribal Laws and Ordinances Admission Requirement: None Judicial Authority: Tribal Ordinance and General Tribal Council Approval
APPENDIX n n Red Cliff Tribal Court 88385 Pike Rd. , Hwy. 13 Bayfield, WI 54814 Telephone: (715) 779 -3725 FAX: (715) 779 -3724 Chief Judge: Donald Gurnoe Associate Judge: Robert W. Buffalo Tribal Attorney: Dave Ujke Tribal Prosecutor: Laura Belanger Clerk of Court: Heather Deragon Appeals: Three-Judge Panel consisting of Judges from other tribes Admission Requirements: Written and oral exam on tribal law and a fee. Court's Source of Power: Constitution and Ordinances Subject Matter Jurisdiction: Conservation violations On/Off reservation; Small claims, Domestic abuse; Traffic; Child welfare; Tribal ordinances; Extensive civil code; Divorce Personal Jurisdiction: Tribal members; limited non-member Tribal Membership Criteria: Direct descendants of 1896 and 1934 Rolls and Vote of tribal members. Children born on the reservation to a tribal member are automatically members. Children born off the reservation may be automatically admitted provided that the birth is reported within one year. Those persons whose births are reported later than one year must be voted into membership.
APPENDIX n n St. Croix Tribal Court 24663 Angeline Avenue Webster, WI 54893 Telephone: 715 -349 -2195 Fax: 715 -349 -5784 Chief Judge: Gloria Merrill Associate Judge: Crystal La. Pointe Tribal Prosecutor: Caroyl Long Tribal Attorney: Andrew Adams Clerk of Court: Penny Nelson Assistant Clerk of Court: Jackie Churchill Appeals: Thee-member panel composed of judges of other tribal courts. Admission Requirement: $25 Fee Court's Source of Power: Tribal Constitution; Authority given by Tribal Council; and not a separate branch of government Subject Matter Jurisdiction: General civil jurisdiction Personal Jurisdiction: St. Croix Tribal members; non-members regarding Reservation small claims; and pursuant to Inter-Tribal agreements. Tribal Membership Criteria: At least ancestry and 1/2 Indian blood.
APPENDIX n n Sokaogon (Mole Lake) Tribal Court 3051 Sand Lake Road Crandon, WI 54520 Telephone: 715 -478 -7608 Fax: 715 -478 -7631 E-Mail: [email protected] net Chief Judge: Fred A. Ackley, Jr. Judges: Debra E. Van. Zile, Kerry A. Fox, and Chris Mc. Geshick Tribal Attorney: Glenn Reynolds Tribal Prosecutor: Gary D. Knudson Clerk of Court: Chris Burnett Appeals: Three-member Judicial Panel from Great Lakes Tribal Judges Association Admission Requirements: Must be admitted to Wisconsin Bar and pay a $75 fee Court's Source of Power: Tribal Constitution and Tribal Ordinance Subject Matter Jurisdiction: Conservation violations; some child protection and domestic abuse matters; and Judges perform marriages Personal Jurisdiction: Tribal members Tribal Membership Criteria: Born to Tribal member; descendant of a tribal member listed on 1937 Roll.
APPENDIX n n n Stockbridge-Munsee Tribal Court N 8476 Moh He Con Nuck Road Bowler, WI 54416 Telephone: 715 -793 -4397 Fax: 715 -793 -4880 Chief Judge: Robert Miller, Jr. Associate Judge: Mary Ann Higgins Tribal Attorneys: Howard Bichler and Bridget Swanke Tribal Prosecutor: (shared) Clerk of Court: Wayne Malone, Sr. Appeals: Three-Judge panel (one from Stockbridge-Munsee and two from Wisconsin Tribal Judges Association) Admission Requirement: Examination for admission to practice Court's Source of Power: Tribal Ordinance Subject Matter Jurisdiction: General Civil (by ordinance), including employment, child protection, domestic abuse, housing and probate, family, youth in need, guardianship, divorce. Personal Jurisdiction: Those with Tribal interactions Tribal Membership Criteria: 25% Stockbridge-Munsee Blood