Law helps cooperation between tribal, state courts

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Lawyers in almost any practice area should have at least a passing knowledge about the legal systems of the tribes in the state and the unique state and/or federal laws relating to tribes that may affect their practice. Paul W. Stenzel von Briesen & Roper s.c.

The recent enactment of Assembly Bill 402 (AB 402) is one more step forward in the growing trend of communication and cooperation between tribal and state courts in Wisconsin. This article discusses the new law, its place in the tribal-state dialogue and the implications for lawyers practicing in the state.

AB 402 was developed and passed as a direct response to the Wisconsin Court of Appeals decision in In the Interest of Elmer J.K. III, 224 Wis.2d 372 (Ct.App. 1999). In that case, Elmer, a juvenile and member of the Menominee Indian Tribe (Tribe), was adjudicated delinquent in Menominee Tribal Court. Pursuant to an agreement between the Tribe and the Wisconsin Department of Corrections (DOC), the tribal court ordered that Elmer be placed in Northwest Passage, a secure treatment center in Polk County.

Elmer subsequently engaged in conduct that led to several charges of violation of state law including disorderly conduct and battery. A delinquency petition was filed in Menominee-Shawano County Circuit Court. Under the Tribe’s agreement with DOC, it states that the tribal “Court retains jurisdiction and legal custody of all Indian persons affected by the Court’s orders and no placement by the Court pursuant to this agreement shall act to relinquish said jurisdiction and legal custody ….”

Elmer argued that this language foreclosed state court jurisdiction. The Court of Appeals disagreed with Elmer and affirmed the trial court’s jurisdiction stating that the agreement’s language means that the tribal court retains jurisdiction over the juvenile under the dispositional order arising from the delinquent act committed within the Reservation, not subsequent acts committed outside the Reservation boundary.

While the Elmer court refused to make room for tribal court jurisdiction, AB 402 requires an approach that correctly realizes that just because a state court can hear a case doesn’t mean it should. Now, when a juvenile allegedly commits a delinquent act outside of the tribe’s jurisdiction while under a tribal court order and that order has placed the juvenile outside the tribe’s jurisdiction, AB 402 governs.

The law provides that when these circumstances are present, prior to any state court filing, the state juvenile intake worker should consult with tribal officials and make a determination as to whether it is in the best interest of the juvenile for the case to proceed solely in tribal court. Similarly, when the above circumstances are present, if a petition is filed in state court and the state court subsequently becomes aware that a petition has been or may be filed in tribal court, the state court must stay its proceeding and communicate with the tribal court to discuss which court is the more appropriate forum.

The cooperative provisions of AB 402 echo its forerunner, Teague v. Bad River Band, 2003 WI 118. In that case, involving Jerry Teague, a former employee of the Bad River Band of Lake Superior Chippewa Indians, the Wisconsin Supreme Court ruled that when parallel actions are filed in state and tribal courts concerning the same case, the considerations of comity govern. Accordingly, the state court must consider a list of factors enumerated by the Teague court and consult with the tribal court to determine whether the state court should relinquish its jurisdiction.

The intent of the Supreme Court appears to be that state court judges will confer with their tribal counterpart and come to agreement about where it would be most appropriate to hear the case. Similarly, AB 402 defines additional circumstances when state court officials shall confer with tribal court officials to determine which forum is in the best interest of the juvenile.

The trend of the litigation and legislation signals an important shift: the discussion is less about where these types of cases can be heard and is more about where the cases should be heard. The distinction is critical: determining where a case can be heard embraces a view of jurisdiction as a zero-sum turf battle; determining where a case should be heard embraces a more public-minded view of jurisdiction as a shared responsibility.

This shift has occurred for three main reasons. First, tribal justice systems in Wisconsin have become more developed over the last 25 years. Second, Chief Justice Shirley S. Abrahamson is committed to fostering good relationships with the tribal judiciary (and the tribal judiciary has reciprocated). Third, the law is clear that in many situations state and tribal courts will have concurrent jurisdiction over a matter.

These intergovernmental developments have implications for lawyers practicing in Wisconsin: 1) They should be aware of the larger institutional implications behind any venue or jurisdictional issues that may be assessed in a situation where tribal and state court forums are in the mix. 2) The increasing deference shown by state courts towards tribal courts means that lawyers disregard tribal court systems at their peril. (In the Teague case, Jerry Teague’s lawyers intentionally defaulted in tribal court and paid a heavy price when the Wisconsin Supreme Court ruled that considerations of comity required that his case be dismissed from state court.) 3) Lawyers in almost any practice area should have at least a passing knowledge about the legal systems of the tribes in the state and the unique state and/or federal laws relating to tribes that may affect their practice.

Although AB 402 is likely to affect only a handful of cases, its larger implications should not be overlooked. With AB 402, the state Legislature has followed the Judiciary’s signal from Teague by codifying a policy of tribal consultation when it could have done nothing or taken an entirely different legislative path. At least in the area of court jurisdiction, the zero-sum view is arguably waning while the shared-responsibility view is ascending. Perhaps each government realizes that what is in the best interests of their constituents can be achieved through constructive dialogue and negotiation.

Paul W. Stenzel is a member of von Briesen & Roper’s Indian Law Section. Prior to joining von Briesen, he was a Staff Attorney with the Stockbridge-Munsee Indian Community for eight years where his primary areas of responsibility included tribal court development and tribal court litigation, intergovernmental agreements with state and local governments, law enforcement, and employment. Stenzel served as the Stockbridge-Munsee Tribal Prosecutor for eight years. He can be reached at [email protected].