Oneida seek to broaden courts

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When attorney Paul W. Stenzel worked with the Stockbridge-Munsee Tribe of Wisconsin on an expansion of its judicial system, the result proved to be an example of the uniqueness of tribal courts.

The end product provided a mechanism for self-governance and exercised the tribe’s sovereign rights. But when the system was implemented in 1995, the codes didn’t allow for one judicial function routinely handled in state court.

“We did all of this work and got the codes in place and the first thing people wanted to do was name changes,” Stenzel said. “It’s a mundane thing, but that’s the need that came up in the community.”

Leaders have since adopted the ability to legally perform name changes for tribe members. And other tribes in the state are expanding their judicial systems to provide better access to members and also relieve the burden on circuit courts.

Each of the 11 Wisconsin tribes recognized by federal law has some version of a judicial system, though they differ greatly in complexity.

Earlier this year, the Oneida Tribe broadened its system to incorporate family law cases, which have grown considerably.

Trish King, chair of the tribe’s legislative operating committee, said this year alone the tribe has handled more than 150 child support cases.

Prior to the jurisdictional change, those cases would have all likely been handled in Brown County Circuit Court.

“If there is concurrent jurisdiction, the state has the authority to transfer those cases to the tribe, which undoubtedly lightens the state’s load,” King said.

Brown County Circuit Court Judge Marc A. Hammer said the court has seen a “massive shift” in child custody cases and at this point the process is working well.

“Those transfers seem to be going well and I’ve not heard of any objections from litigants on either jurisdiction or merits,” he said.

King expects the same effect for small claims and contract law cases, which are currently handled in state court, if the tribe successfully adopts a legislative plan to further expand its jurisdiction.

Criminal matters are handled outside of the tribal court system and tribal courts have no jurisdiction over nontribal members in such cases. Tribal courts do have jurisdiction over tribe members in criminal matters, but as a general rule, criminal matters are turned over to state courts.

The Oneida Judiciary Law proposal would eliminate the tribe’s Appeals Commission, established in 1991, with more defined trial and appellate courts. The new trial court would house the Family Division and a Small Claims Division, as well as a Peacemaking and Mediation branch.

Green Bay attorney Tricia A. Nell has represented Oneida members in tribal court and said the changes would provide more jurisdictional clarity for lawyers.

“It’s definitely a positive thing,” she said. “Not only are we providing better service for tribal members, but we’re also alleviating the state court caseload of cases they probably don’t know how to handle as well anyway.”

In child support cases, she said tribal courts now have greater flexibility to work out payment plans or make other arrangements as an alternative to jail.

“Before, in Brown County, a lot of judges might put someone in jail if they are behind on child support, whereas the tribal courts may not do that,” said Nell, of Liebmann, Conway, Olejniczak & Jerry SC.

Similarly, for small claims cases such as evictions or minor accidents, she said it makes sense for parties to receive a judgment in the same venue where the incident occurred.

Stenzel agreed and said small claims is a natural expansion because “it’s a basic function people expect of a court,” where disputes can be heard and ideally resolved.

The specialization of divisions also gives more structure to tribal court dockets, said Milwaukee attorney John S. Swimmer, who has worked with several tribes.

“The challenge is to get specific branches to meet the needs of members,” he said. “Small claims matters are handled by one branch in Milwaukee County, but for tribal judges, they could end up hearing just about anything.”

Changes will also benefit pro se litigants in the tribal court system, suggested Swimmer because, “there is a little less formality in tribal courts and rules and proceedings generally are a little more open to pro se plaintiffs.”

King admitted that both internally amongst tribal members and externally, there has been confusion as to the jurisdictional limits of the appeals commission.

The new system is designed to simplify the process for tribal court judges as well as lawyers and parties that appear before them.

“It wasn’t until we started doing these changes that some people understood our judicial system,” King said.

Jack Zemlicka can be reached at [email protected].