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High court votes to keep rule that allows transfer of cases to tribal courts

The Wisconsin Supreme Court has voted to keep in place a rule that lets circuit court judges transfer civil cases to tribal courts.

Before the justices Tuesday were two petitions involving Wis. Stat. 801.54. Adopted in 2008, that statute was later modified to let tribes hear child-support cases sent to them by state courts. The rule has long been a subject of controversy among the justices.

One of the petitions up for a vote Tuesday involved a review of the transfer rule, which the court last looked at in 2010. The second was brought by six members of the Oneida Tribe of Indians of Wisconsin, who petitioned the court in July 2014 to repeal the rule. They argued that elimination is needed to take power away from the Oneida Nation judiciary, which they say is biased and favors nepotism over justice.

Taking up the first petition, the justices voted 5-2 at Tuesday’s open-rules conference to leave the rule untouched. Chief Justice Pat Roggensack and Justice Rebecca Bradley made up the minority.

The justices then took up the petition to eliminate the rule altogether, once again voting 5-2 against making any changes. As in the previous vote, Roggensack and Bradley were in the minority.

Justice Michael Gableman made motions for both votes after presenting his findings from meetings recently held with the state’s tribal courts. At various times during the past three weeks, he has sat down with tribal judges and observed hearings in their courts.

“The consensus among the circuit courts and the trial courts is that the rule is working well for all parties,” Gableman said Tuesday.

He said that the tribal courts are required either by language in their tribal codes or through the Indian Law Act to ensure that anyone who appears before them is accorded the same rights as someone going through state or federal courts.

Roggensack responded by saying she appreciates Gableman’s work and values the tribal courts, but has reason to doubt that the tribal courts are always as solicitous of individual rights as they should be.

“However, even though the words of some of the tribal codes say they will uphold the U.S. Constitution, the tribes continually combine religion and law, which they call tradition, and that is totally contrary to the U.S. Constitution,” she said. “To transfer someone’s case to tribal court against their will seems to me to violate a constitutional right under the state constitution.”

Roggensack said the current transfer rule changes the substantive rights of parties, which state statue prohibits the court from doing. She said the tribal courts could resolve the matter quickly by adopting language in their laws that would allow transfers back to state courts. She also noted that the U.S. Supreme Court plans to weigh in soon on a relevant case, Dollar General Corp. v. Mississippi Band of Choctaw Indians.

Rebecca Bradley said her concerns were the same as Roggensack’s.

“We cannot simply cast those important documents aside simply because the rule is working,” she said. “I cannot support this because it would violate the oath I took to uphold the constitution.”

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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