High court hears testimony on tribal court transfer rule

Listen to this article

The Wisconsin Supreme Court heard testimony Tuesday on a rule that now lets circuit courts transfer cases to tribal courts, as well as on a petition that would have the same rule repealed.

The justices heard testimony from judges, attorneys and members of various tribes. All told, more than 20 people were registered to speak Tuesday afternoon.

“It works, it works well and it works as intended,” said James Mohr, a tribal judge. “And it works with few problems.”

The rule, contained in state statute 801.54, was passed six years ago. It has since been modified to let tribes hear child support cases that are sent to them from state courts.

Mohr said that the beauty of the statute is that it sets out a neutral procedure governing the transfer of cases to tribal courts. The current rules instruct judges to look at the facts of cases before transferring them.

Even so, the justices expressed concerns. Chief Justice Pat Roggensack asked if the rule would prevent some tribe members from accessing circuit courts. Roggensack had dissented in July 2011 when a majority of the court’s members reaffirmed the transfer rule.

Also, justices appeared to be open to amending the rule. Justices Michael Gableman and David Prosser asked judges and tribe members what improvements could be made.

Connie Chesnick, attorney for the state Department of Children and Families, testified that without 801.54, transfers of child support cases would still be possible, but might lack the efficiency and consistency that is afforded by the rule. Cases, said Chesnick, are rarely transferred back to the circuit courts.

However, supporters of the petition to repeal the rule painted a different picture. They have argued that 801.54 should be eliminated in order to take away power from the Oneida Nation’s judiciary, which they say is biased and favors nepotism over justice.

The Oneida Nation became the first among Wisconsin tribes in 2008 to set up a child-support agency and has since served as a model for other tribes. The idea behind the transfers is to let the tribes police matters involving their own members. Proponents of sovereignty say a tribe is better equipped to handle decisions in a way that meets its cultural needs.

But Linda Dallas, an Oneida tribe member representing the petitioners who asked for the rule’s repeal, disagreed Tuesday, saying that 801.54 is too broad and results in too much deference to the tribal courts.

Although Dallas said she could not speak for other tribes in the state, she said the results of transfers within the Oneida tribe are far from efficient and consistent.

She said Tuesday that in many cases, people have not been receiving notice that their cases have been transferred, and she noted several examples of practices in the Oneida court and government in which there could be conflicts of interest.

Nona Danforth, another petitioner, testified that she had tried to file a child-custody action in Brown County Circuit Court, but the clerk refused to take the fee. Other attorneys Danforth had contacted said she could not file her action in circuit court.

Danforth’s testimony prompted the justices to ask about the kind of legal aid tribal members can get in the state. Justice Annette Ziegler asked if creating a form allowing prose litigants to request a transfer would be helpful.

However, Roggensack noted that Dallas’ concerns could not be dealt with by the court through the petition because the Oneida tribe is, under federal law, considered a sovereign nation.

“We can’t tell the tribal courts what to do,” she said. Follow @erikastrebel