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State, tribal courts sign jurisdictional agreement

Lac du Flambeau former Chief Judge Ernest St. Germaine (l) holds a stone with burning tobacco as Forest County Potawatomi Chief Judge Eugene White-Fish (r) draws smoke toward himself during a ceremony for the signing of the Teague Protocol. Stockbridge-Munsee Chief Judge David Raasch (c) stands with head bowed after receiving the smoke.

Photo by Tony Anderson

One of Wisconsin’s judicial districts and five tribal courts have taken steps to help resolve jurisdictional conflicts when they arise. The Ninth Judicial District and five bands of American Indians with reservations or property within the district have reached an agreement on how to address cases involving shared jurisdiction.

Chief Judge Dorothy L. Bain, of the Ninth District, said she was pleased to have the protocol in place. "It provides a standardized vehicle for resolving the current jurisdictional issues," Bain explained.

"We are very proud that it’s here," said Chief Judge David Raasch, of the Stockbridge-Munsee Band of the Mohicans in Bowler.

Teague Protocol

Last Thursday, Bain, Raasch and four other tribal court chief judges signed the Teague Protocol. The signing took place at a special ceremony during a conference in Green Bay of state, federal and tribal representatives. (See accompanying article on this page for more on the Walking on Common Ground conference.)

The Teague Protocol incorporates the Wisconsin Supreme Court’s guidelines for resolving jurisdictional issues between state and tribal courts. Those guidelines were laid out in the court’s 2003 decision, Jerry Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians (Teague III).

In 1997, Jerry Teague brought an action in state court against the Bad River Band alleging breach of employment contracts. While the case was pending, the band brought an action in tribal court alleging that the contracts were invalid.

A lengthy jurisdictional battle ensued taking the case to the state Supreme Court three times. The first time, the high court sent the case back down to the trial courts to seek a resolution. In 2001, the case went back to the Supreme Court and it released a written decision (Teague II) stating that state and tribal courts should hold a conference to determine the pendency of the action. The court indicated that comity should be a guiding principle in those discussions.

Opinion Guides Agreement

The case came back to the high court a third time and on July 17, 2003, the Supreme Court released Teague III, which provided a list of guidelines for the conference between the state and tribal court. The elements of Teague III formed the basis for the agreement in the Ninth District.

Raasch explained that when a question of jurisdiction arises the protocol establishes a procedure for the state court judge and tribal court judge to hold a conference to resolve the issue. The agreement establishes a number of factors for the judges to consider. Among other things, the courts will consider whether the case involves a matter of state or tribal law, how far the case has proceeded in each court, how much time and money the courts have invested in the case, and cultural issues for the tribe. If the two judges cannot reach an agreement, the agreement allows for a third judge to help resolve the matter.

Teague Protocol guidelines

The Teague Protocol, adopted by the Ninth Judicial District and the participating bands, establishes a set of Standards for Allocation of Jurisdiction.

The following factors shall be considered in determining which court shall exercise jurisdiction in the matter:

(a) Where the action was first filed and the extent to which the case has proceeded in the first court.
(b) The parties’ and courts’ expenditures of time and resources in each court and the extent to which the parties have complied with any applicable provisions of either court’s scheduling orders.
(c) The relative burdens on the parties, including cost, access to and admissibility of evidence and matters of process, practice, and procedure, including whether the action will be decided most expeditiously in tribal or state court.
(d) Whether the nature of the action implicates tribal sovereignty, including but not limited to the following:
1. The subject matter of the litigation.
2. The identities and potential immunities of the parties.
(e) Whether the issues in the case require application and interpretation of the tribe’s law or state law.
(f) Whether the case involves traditional or cultural matters of the tribe.
(g) Whether the location of material events giving rise to the litigation is on tribal or state land.
(h) The relative institutional or administrative interests of each court.
(i) The tribal membership status of the parties.
(j) The parties’ choice of contract, if any, of a forum in the event of a dispute.
(k) The parties’ choice by contract, if any, of the law to be applied in the event of a dispute.
(l) Whether each court has jurisdiction over the dispute and the parties and has determined its own jurisdiction.
(m) Whether either jurisdiction has entered a final judgment that conflicts with another judgment that is entitled to recognition.

The goal is to eliminate the problems associated with litigants racing to the court to file first, Raasch said.

"Basically, we adopted what the Teague (III) case said," Bain explained. "But this provides a practical application of Teague (III)."

In addition to Raasch and Bain, the protocol was signed by tribal court judges: Chief Judge Fred A. Ackley Jr., Sokaogon Chippewa Community (Mole Lake); Chief Judge Alice K. Soulier, Lac du Flambeau Band of Lake Superior Chippewa Indians; Chief Judge Ervin Soulier, Bad River Band of the Lake Superior Chippewa Indians (Odanah); and Chief Judge Eugene White-Fish, Forest County Potawatomi Community (Crandon).

"It wasn’t easy," Raasch acknowledged. "On the state side, they were dealing with one sovereign — the State of Wisconsin. On the tribal end of it, we were dealing with five separate sovereigns, which included five separate tribal councils.

"We are very proud that it’s here — that we have a mechanism to discuss these things."

Earlier Agreement

This is the second time that a state court district and the local tribal courts have adopted an agreement to address jurisdiction. In 2001, Wisconsin’s Tenth Judicial District reached an agreement with four Chippewa tribes. That agreement was developed while Teague was moving through the courts.

Chief Judge Edward Brunner, of the Tenth District, noted that the Supreme Court incorporated some of the elements from the 2001 agreement into the Teague III decision.

"We didn’t realize it at the time," Brunner recalled, "but as this progressed, we realized that this had never been done before — tribal judges and state judges sitting down to discuss these issues."

He noted that comity was a guiding principle.

"Comity is all about respect for the two sovereigns," Brunner said. "It’s the development of an idea in the spirit of cooperation. And the recognition that each sovereignty has its own laws and those laws are approved by its people. Comity only works if you accept the differences that each sovereign has and their various legal processes. Comity is supposed to respect and allow for these differences. Foremost, it needs to have due regard for the rights of the citizens of each sovereign."

The Tenth District agreement served as a guideline as the Teague Protocol was developed. The Ninth Judicial District includes the following counties: Florence, Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Price, Shawano, Taylor, and Vilas.

Tony Anderson can be reached by email.

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