Tribal court transfer statute up for first review

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Case raises issue of when rule applies

For the first time since enactment of sec.801.54(2), governing which court should hear a case when both state and tribal courts have jurisdiction, the Wisconsin Supreme Court will interpret the new rule.

The rule became effective in 2009, after years of jurisdictional battles between state and tribal courts that generally involved tribes and their nonmember employees. This case is similar, but with two added twists: no suit was ever filed in tribal court and the defendant is not a tribe itself, but a corporation wholly owned by a tribe.

John Kroner was hired as CEO of Oneida Seven Generations Corp., a corporation wholly owned by the Oneida Tribe. He was later fired, at which point he brought suit in state court alleging breach of contract and wrongful termination. The case proceeded through state court for more than two years and was ready for trial.

But three and a half months before trial, the corporation moved for transfer to the Oneida Tribal Court and the circuit court granted the motion. The Court of Appeals affirmed in an unpublished opinion and the state Supreme Court granted review.

The case raises several issues concerning when and how the rule applies.

Kroner contends the rule is inapplicable because there was no case ever filed in tribal court. The rule was a codification of the state Supreme Court’s ruling in a case known as Teague III, in which both a tribal court and a state circuit court exercised jurisdiction over the same dispute.

Kroner further contends that, in order for concurrent jurisdiction to exist, there must be concurrent lawsuits pending.

In its brief to the court, Kroner’s representative argues, “Teague III dealt with a potential ‘race to judgment’ between two forums, tribal and State; both forums had complaints filed, and had concurrent jurisdiction established. In this case, the Oneida Tribal Court has no complaint pending, and has not been joined to a ‘race.’”

The tribe, however, contends a pending case is not a prerequisite to finding concurrent jurisdiction exists. As stated,

“If transfers of cases between courts of different systems required cases making the same claims to be pending in each jurisdiction, removal of cases from state court to federal court would be impossible. The same concepts must apply to concurrent jurisdiction of tribal and circuit court. If claims could be brought in either court, concurrent jurisdiction exists.”

Also at issue in the case is whether the court considering transfer must explicitly consider each of the 11 enumerated factors listed in the rule. The corporation acknowledges the circuit court did not do so.

Kroner contends this requires reversal, but the corporation argues that because all factors were presented to the circuit court, they were implicitly considered.

Interpretation of the various Teague factors also are at issue. Among them is whether the tribe itself should be deemed a party in the case. The Oneida tribe itself is not a party, but a wholly-owned subsidiary. Kroner argues that, therefore, the tribe is not a party and that factor should weigh against transfer to tribal court. The corporation argues that because it is a wholly-owned subsidiary of the tribe, the court should weigh this factor in favor of transfer to tribal court.

In brief

Case: Kroner v. Oneida Seven Generations Corp., No. 2010AP2533

Attorneys: For Kroner: Michael Brown, of Peterson, Berk & Cross SC, Appleton
For Oneida Seven Generations Corp.: Thomas Schober, of Davis & Kuelthau SC, Green Bay