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Justices defer decision on transfers of circuit court cases to tribal courts

The Wisconsin Supreme Court has decided to defer taking action on two petitions involving a rule that allows the transfer of circuit-court cases to tribal courts.

One of the petitions calls for simply for a review of rule 801.54, which lets circuit-court judges transfer circuit court cases, mostly child-support cases, to tribal courts. The other asks the court to eliminate the rule completely.

The justices agreed at an open rules conference Thursday to defer decisions on the two petitions until April.

In the meantime, Julie Rich, Supreme Court commissioner, will work on language that would let transfers go the opposite way, from tribal courts to trial courts. Justice Shirley Abrahamson suggested the change, noting that tribal courts can already make the transfers informally.

Also, Justice Michael Gableman, who is Supreme Court’s the liaison to the tribal courts, plans to meet tribal-court judges to discuss how to help tribe members become more comfortable with the current rule allowing transfers from circuit courts to tribal courts. Advocates for repealing the rule have said  they want to see power taken away from the Oneida Nation’s judiciary system, which they argue is biased and favors nepotism over justice.

Justice Annette Ziegler had suggested the decision be deferred so that the justices could gather more information before they vote. She noted that while the rule seems to be working well, she has concerns about parties understanding their rights when their cases are transferred.

“Is there a way I can know people who end up in tribal court knowingly, intelligently and voluntarily are there knowing what they are giving up — constitution rights, jury trials, things like that — and people who end up in circuit court are knowingly, intelligently and voluntarily there?” she said.

The rule allowing transfers to tribal courts was passed six years ago. It has since been modified to let tribes hear child-support cases sent them from state courts.

The Supreme Court took up both petitions on Nov. 19 in a day-long public hearing. More than a dozen people testified.

Supporters have said the rule creates a neutral procedure that helps judges decide whether a case should be transferred to a tribal court. They also contend that it streamlines transfers of child-support cases.

About Erika Strebel, [email protected]

Erika Strebel is the law beat reporter for the Wisconsin Law Journal and a law school student at UW-Madison. She can be reached at 414-225-1825.

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