The Wisconsin Supreme Court will hold a public hearing on whether to keep, tweak or strike a rule allowing circuit courts to transfer cases to the tribal system, the justices decided Monday.
The hearing will take place in the fall and will speed up by a few months a review of the rule, known as state statute 801.54. The hearing will allow proponents of the transfer rule to speak and will also give opponents time, as well.
The rule was passed on a 4-3 vote six years ago. It has since been tweaked to allow tribes to hear child support cases sent from state courts. The majority of the transferred cases revolve around child support.
The court’s decision to address the petition, which occurred at an open rules conference, surprised the small crowd in attendance Monday and those in the tribal court legal community. The rule has been controversial among the justices since it passed six years ago.
The rule recently entered the discourse again after a small group of Oneida Nation members filed a petition asking the justices to repeal it. They argue that 801.54 should be repealed to take away from what they see as a biased and dangerous Oneida Nation judiciary that favors nepotism over justice.
In particular, the group’s leader, Nona Danforth, said the judicial officers in the tribe erred when they granted joint custody of her child to her and her ex-boyfriend, Vicente Vega. Though Vega denies it, Danforth said he is an unfit parent.
But the petition, if approved by the justices, would affect more tribes than the Oneida Nation. It also would not take away the power of the tribal judges in cases that began at the tribe.
On Monday, court Commissioner Julie Rich urged the justices to reject the group’s petition, saying it “is less thorough than what you usually expect to see in a petition” and that there were “no specifics.”
The justices declined, but noted that both sides will be heard at the fall hearing.
“I would urge the court not to silence these people who are opposed to the rule because of their experiences and perhaps flesh out what they have so far,” Justice Pat Roggensack said.
Still, it remains to be seen how the court will feel about it this time around. In a July 2011 dissent to the court majority’s decision to reaffirm the transfer rule, Roggensack wrote, “Wisconsin courts have no power to review decisions on child custody, child support or child placement made after transfer to tribal court because those decisions will be made by an independent sovereign not accountable to Wisconsin courts. Even federal courts cannot review tribal court decisions in the normal course of a federal court review.”
But Justice Patrick Crooks said it is important to hear what all actors in the tribal courts process think about how the rule works. That would mean hearing from circuit court judges, other tribes and child support agencies, he said.
The Oneida Nation in 2008 was the first to set up a child-support agency and has been a model for other tribes.
The idea behind the transfers is to let the tribes police matters involving their members. Proponents of sovereignty say a tribe is better equipped to handle decisions in a way that meets its cultural needs.
Some tribes, for example, offer services state judges may not know about, such as drug-treatment programs within the tribes. And statute proponents say it is easier to collect child support, especially if the person paying works for the tribe, because the tribal courts can garnish wages or the per capita payments each member receives.
In addition, Oneida Nation leaders have sought to address concerns from the rule’s opposition and others by creating a new judicial system. The tribe is in the process of implementing the new system.
Danforth has said her request is not meant to affect the other tribes, but if it did, “then so be it.”
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