The Great Lakes Indian Law Center
Comments on Proposed Wisconsin
Rule of Court 7-11:
“A Perspective on the ‘schizophrenic’ approach to our legal relationship with Wisconsin’s Indian Nations and a modest proposal to give clarity to the federal Public Law 83-280 in Wisconsin”
Submitted February 15, 2008
to the Wisconsin Supreme Court
The Great Lakes Indian Law Center
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706
About the Great Lakes Indian Law Center
The Great Lakes Indian Law Center at the University of Wisconsin Law School was established in 1992 to improve the practical legal skills of all students interested in Federal Indian Law while providing a legal resource for Native American Tribes. The Center is chartered to 1) provide academic and educational atmosphere and opportunity for law students to study Federal, State, and Tribal laws affecting Indian Nations and their citizens; 2) provide legal assistance on uniquely tribal matters; and 3) encourage and assist Indian Students in obtaining a legal education. Wisconsin has eleven federally recognized Indian tribes including six bands of Chippewa and the Potawatomi, Ho-Chunk, Oneida, Menominee, and Mohican (Stockbridge-Munsee) Tribes. The Center’s strategic proximity to these Indian nations, the quality of our students, and an institutional commitment to "law in action" create a synergistic effect that is truly unique. The University of Wisconsin Law School has graduated more practicing Indian lawyers than any other school in the country, and many if not most of those alumni have benefited from the initiatives and programs sponsored by the Center, which including the tribal externship and Indian business capacity building programs. To find out more about the Great Lakes Indian Law Center visit us on the web at http:/law.wisc.edu/glilc/
This work is an organic culmination of efforts between many different parties including Director Richard Monette and Deputy Director Huma Ahsan. The Center would like to acknowledge and thank UW Law student Rachel Lauesen for editing.
This work is dedicated to all the Indigenous peoples of Wisconsin who have been removed to and from the state of Wisconsin and to those who still remain.
Table of Contents
I. Jurisdiction in Indian Country…………………………………………………...10
Criminal Jurisdiction within Indian Country
a. Non-Public Law 280 States……………………………………...10
Public Law 280 States……………………………………………12
2. Civil Causes of Action
Non-Public Law 280 States……………………………………...14
Public Law 280 States……………………………………………16
Non-Public Law 280 States……………………………………...19
Public Law 280 States…………………………………………...20
II. Full Faith and Credit and Due Process……………………………...…………...22
a. Weight of choice of forum……….……………………………....25
b. Rule of Court 7-11 effects on Wisconsin
and US Constitutions……….…………………………………....26
Generally, issues arising under the federal Public Law 83-280 (PL280) can be divided into three categories:
2) civil cause of action
In the first section of PL280, the federal government makes an express grant to the State of Wisconsin of jurisdiction over “offenses” in Indian Country. In the second section, PL280 grants to the State jurisdiction over “civil causes of action” in Indian Country. Each of these two sections contains a second paragraph which expressly excludes state jurisdiction over certain regulatory areas. Furthermore, the US Supreme Court has held that PL280 is not a wholesale grant of jurisdiction over other regulatory matters in Indian Country. Therefore, in summary, PL280 grants to the State Wisconsin jurisdiction over criminal offenses and civil cause of action in Indian Country, but PL280 does not grant to the State of Wisconsin jurisdiction over regulatory matters. Importantly, PL280 does not supplant Federal Indian Law. Those areas beyond the reach of PL280, such as the regulatory arena, continue to invoke Federal Indian Law as the foundation for the State/Tribe relationship.
These three categories continue to give rise to several issues under PL280:
1) Concurrent Jurisdiction over Criminal Offenses. First, Federal Indian Law requires that any intent by Congress to abrogate the Tribes’ inherent rights must be express, clear, and unambiguous in a federal statute. Because PL280 did not expressly take away the tribes’ own inherent power to try crimes, several courts have concluded that States and Tribes have concurrent jurisdiction under PL280 to prosecute and punish crimes. Such concurrent criminal jurisdiction is not unusual in American law, as evidenced by the common practice of dual prosecutions by the federal and states governments.
KEY POINT: While dual prosecutions require cooperation among sovereigns in such matters as investigations, handling evidence, and in some ways sentencing; dual sovereigns can both have jurisdiction over the same criminal offense, and they can both exercise it.
2) Concurrent Jurisdiction over Civil Causes of Action. Even though PL280 expressly granted to the State jurisdiction over “civil causes of action”, PL280 did not expressly abrogate the Tribes’ inherent judicial power over civil causes of action. As a result, several courts have construed a concurrent jurisdiction in States and Tribes to process civil causes of action arising in Indian Country. Of course, such concurrent jurisdiction over civil causes of action is the crux of the Teague1 conundrum.
No amount of cooperation among sovereigns will alleviate the root problems caused by the Teague scenario: one party simply cannot have a contract dispute settled in one court while the other party has the same dispute settled differently in another court; one party cannot reach a tort settlement in one court and proceed on the same tort claim in another; one party cannot be divorced in one jurisdiction and remain married in the other.
KEY POINT: While dual sovereigns can both have jurisdiction over the same civil cause of action, they cannot both exercise it.
3) Regulatory Jurisdiction: the “prohibitory/regulatory” distinction. The very notion of concurrent regulatory jurisdiction invokes a thicket of abstraction. PL280 does not expressly grant regulatory jurisdiction to the States, and instead expressly prohibits certain exercises of regulatory jurisdiction by the States. Accordingly, the US Supreme Court has consistently construed PL280 as not granting any measure of regulatory jurisdiction to States. Therefore, the main issue under this category involves defining what is “regulatory”.
Specifically, the charge is to ascertain the dividing line between criminal jurisdiction and regulatory jurisdiction, and to a lesser extent, the dividing line between what is a civil cause of action and what is regulatory. Regarding the dividing line between offenses and regulations, the US Supreme Court has fashioned a test that, it seems, only it can pass: the criminal prohibitory v. civil regulatory test (“the pro/reg test”). As a shorthand rule, the US Supreme Court has queried whether the governed action violates the State’s “public policy”, thus being criminal in nature, or whether the action is simply governed as part of the State’s regulatory scheme (meaning the action is regulatory even if a criminal-style punishment is available as part of the overall statutory scheme). As the US Supreme Court has lucidly conceded: “It is not a bright-line rule, however.”
A small part of the problem is the US Supreme Court’s use of the word “civil” when it speaks of the criminal prohibitory/civil regulatory distinction, since the word “civil” is also in PL280’s second section under “civil cause of action”. The practice of using the word “civil” for dual purposes has evidently confused some scholars and, apparently, even some judges. Therefore, the Center makes a couple important points at the outset: 1) the term “civil causes of action” means private actions between private citizens, such as a contract or personal injury dispute. The term does not mean a civil regulatory action where one party is the state government and the other is a private citizen or subject; and thus 2) the pro/reg test applies only under PL280’s first section, the one regarding criminal offenses; the pro/reg test is irrelevant under PL280’s second section regarding civil causes of action. Nonetheless, the dividing lines remain blurred between prohibitory (criminal offenses) and regulatory laws, as well as the dividing line between “civil cause of actions” and regulatory proceedings, and thus continues to cause confusion and discord.
KEY POINT: Federal Indian Law continues to provide the underlayment for the relationship between PL280 States and Tribes in the regulatory arena where, even in non-PL280 States, the States have some measure of jurisdiction over regulatory matters in Indian Country.
The Great Lakes Indian Law Center concludes that the State of Wisconsin and the Tribes can readily possess and exercise concurrent jurisdiction over criminal offenses in the respective reservation. Indeed, the Center opines that such a development will advance the interests of the both the State and Tribes in fighting crime. The Center also concludes that the State of Wisconsin and the Tribes both have jurisdiction over civil causes of action in the respective reservation, while recognizing that both sovereigns cannot both exercise such jurisdiction. At this juncture, the Center urges the Supreme Court to consider that, while a regulatory statutory scheme may ultimately, after repeated violations, be enforceable by criminal prosecution and punishment, the conduct nonetheless remains merely regulated, not prohibited.
Since the State and the Tribes have concurrent jurisdiction over civil causes of action, yet they cannot both exercise it, there arises inevitable cross-jurisdictional issues of both process and resolution, as evidenced by the Teague case. Cross-jurisdictional issues of dispute resolution can be readily appreciated in American law with the federal constitutional notion of Full Faith and Credit between States, an idea readily extended to the final judgments and orders of Tribal courts. However, issues of process spread across jurisdictional boundaries are far more complex when it comes to the more vague notions of comity, especially regarding the inevitable “race to the courthouse” by private parties, or the even less palatable “race to judgment” by the courts themselves. For purposes of this discussion, the Center refers to these “process” issues – the two “races” – as issues of “primacy” and “exhaustion”. The Great Lakes Indian Law Center respectfully directs the Wisconsin Supreme Court’s attention toward Federal Indian Law developments in both precedent and policy when it comes to primacy and exhaustion.
A Modest Proposal for Primacy and Exhaustion: Federal Indian Law and the Teague Conundrum
If the Center may draw upon the simplicity of our 6thgrade civics lessons, that a democratic society’s laws derive from the norms and values of its own citizenry, and that therefore our norms and values are indicators of our society’s cultural identity and our citizens’ social identity. Therefore, under PL280 the State of Wisconsin and its Supreme Court inevitably play a major role in determining whether indigenous Wisconsinites and their own native nations have meaningful opportunities - under the weighty thumb of the federal and state governments - to make their own laws, evolve their own values, grow their own norms, and determine their own identities. In large measure, the federal courts have acknowledged these truisms in Federal Indian Law. The Wisconsin Supreme Court’s proposed Rule of Court 7-11 is a significant nod in the same direction.
In non-PL280 States, where the Federal and Tribal governments can be said to have a measure of concurrent civil jurisdiction, the federal courts have helped to fashion a workable set of judicial norms in order to avoid unsavory races to the courthouse and races to judgment. In short, the US Supreme Court has fashioned a relatively workable relationship. US Supreme Court case law requires that civil causes of action arising within Indian Country to be filed in the appropriate Tribe’s court first, and that, at the very least, the issue of the Tribe’s jurisdiction be exhausted in the Tribe’s court first. The Great Lakes Indian Law Center urges the Wisconsin Supreme Court to consider following that lead.
As the Wisconsin Supreme Court considers developments under federal law, it may be helpful to recognize two analogies:
1) Analogizing States and Tribes in non-PL280 States. The first analogy emerges in Federal Indian Law, in non-PL280 States. Federal courts have, wittingly or unwittingly, analogized States and Tribes when it comes to the federal government infringing on their respective local sovereignty. At times the federal courts have employed a federalism analogy between States and Tribes en route to infringing on Tribes’ rights, as they have been known to do when infringing on States’ rights. Nevertheless, the federal courts have also, at times, employed a federalism analogy to protect Tribes’ rights, as they have done to protect States’ rights. Indeed, in some ways, federal courts have employed the logic of federalism to protect Tribes and their local sovereignty even more than they have protected States and their local sovereignty. In applying the logic of “Our Federalism” to Tribes, federal courts fashioned a normative, workable approach to primacy and exhaustion.
2) Analogizing the Federal and States in PL280 States. The objective in making this analogy is to illustrate that just as the federal Supreme Court has fashioned rules of primacy and exhaustion in non-PL280 States, the State Supreme Court may fashion rules of primacy and exhaustion in PL280 States. In other words, when a “civil cause of action” arises in Indian Country, the state of Wisconsin may require that the lawsuit be filed in the appropriate Tribe’s court in the first instance, and that, at the very least, the Tribe’s own court could make its own assessment of its jurisdiction and interests in the matter. The State courts, and indeed the federal courts, will appreciate the benefit of the Tribe court’s analysis of its own jurisdiction, just as in non-PL280 States.
The analogies are imperfect. In non-PL280 States, the federal court can decide that the Tribe does not have jurisdiction and the matter is appealed up the federal judiciary. Here if the State decided that tribe lacks jurisdiction, it seems it may be appealed up the State judiciary, in which case it would appealable to the US Supreme Court after the State Supreme Court appeal process are final. If a State lower court decides that a Tribe does not have jurisdiction, the option for tribe is removal to federal court on the federal question of the tribe’s jurisdiction. However, the bottom line is that even when the federal courts are deciding whether the tribe has such jurisdiction, the alternative is, if they do not, that the state will then have jurisdiction.
The Great Lakes Indian Law Center (Center) appreciates the opportunity to participate in the discussion of proposed Rule of Court 07-11 regarding the transfer of civil cases from the Wisconsin state courts to the appropriate court of Wisconsin’s Indian Nations. The Center’s comments are provided for informational purposes2 in order to assist the court with building a solid legal foundation for the proposed rule. While a thorough analysis requires an overview of “Federal Indian Law”, these comments focus on the interplay between the State court and the Tribal court justice systems located in Wisconsin.
The discovers of the New World from the beginning have questioned the abilities and limitations of communicating and forming government to government relationships with the Native Americans. The King of Spain and the Pope separately assigned briefs to inquiry “do Indians have Souls? Are they worthy of conversion of Christianity? Are they human? Do they have human rights?” De Las Casas answered the Spanish King in the affirmative. Sepulveda answered the Pope in the negative. From that point to today, this country’s most intelligent decision-makers have struggle to understand the rights of the people whose government predated the establishment of the United States. In a frustration-laden separate concurring opinion, Justice Clarence Thomas remarked:
“Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our cases."3
-Justice Clarence Thomas (concurring in United States v. Lara)4
America and Americans have grappled with the issues that lay at the foundation of this paper. Within Wisconsin, there are eleven Indian Nations; ten of which possess concurrent civil and criminal jurisdiction with the state of Wisconsin under a widely misunderstood law called Public Law 83-280 (PL280). We must begin by posing a few hypotheticals to the Court in order to fully illustrate the confusion presented by jurisdictional issues in Wisconsin and the effects Proposed Rule of Court 7-11 will have on this issues. We pose three hypos with the objective to determine if they are criminal, civil cause of action or regulatory.
Hypothetical One: A domestic relations dispute arose on the Sokaogon Chippewa Reservation; the husband beat up the wife and allegedly threatened her with physical violence. Temporary restraining orders were issued in both the Tribal court and County Courts. Both the Tribal prosecutor and the County District Attorney bring charges of Attempted Murder against the husband in their respective districts.
Hypothetical Two: Same facts as above, except that this time, a legal dispute arises between the husband and wife and the husband files an action for divorce in Wisconsin State Courts and the wife files an action for divorce in Tribal Court.
Hypothetical Three: Same facts as above but this time both Sokaogon Chippewa Community’s Social Service department and the Crandon County Social Service intervene. Both impose certain requirements on the husband before he can re-enter the premises. The husband violates both the county requirements and the Tribal Social Services requirements. Both agencies bring an action in their courts. The Tribal Social Services brings a contempt action in Tribal Court and the County Social Services brings an action in State Courts.
As the court can see from one typical domestic relation situation many issues could arise involving the complexities of concurrent Tribal, Federal and State jurisdiction in Indian Country within Wisconsin.
In order to understand the jurisdictional issues presented in Wisconsin and the effects of Proposed Rule of Court 7-11; we must first take a look at how jurisdiction plays out where Public Law 83-280 is not applicable. In western states such as North Dakota5 and South Dakota, jurisdiction is determined by looking at where the state snowplows or state law enforcement decide not to go. When there is a heavy snowfall in those areas, it is common practice for the state snowplows pick up their blades when they come to Tribal lands. It is also common that on a Friday or Saturday night, that State troopers are met on the Tribal boundaries with the Tribal police who tell them to turn around and not to enter into Tribal Lands. But somehow in Wisconsin, we have forgotten this simple idea that jurisdiction does not automatically confer the right to enter into another Nation’s lands and that these ideas of jurisdiction and entry onto Tribal lands are not one and the same legal concept.6
It is important in this discussion, to remember that the Indian Nations and their citizens are the source of their power and that the State of Wisconsin did not give them any special rights.7 The treaties that were signed with the Indians were merely contracts for the sale of land and that the Tribal governments and their citizens are the source of their sovereignty then and now to exercise control and dominion over their lands and peoples who enter on to their lands.8 It is also important to note that since the Treaties with the Indian Nations, subsequent cases and laws were designed to take away their rights to exercise dominion and control over their lands and peoples.
A primary example of this is Public Law 83-280(PL280), enacted in 1952. PL280 supplanted the Federal-Tribal concurrent jurisdiction over criminal and civil causes of action with the State-Tribal concurrent jurisdiction over these matters. Public Law 83-280 has been misinterpreted by some within Wisconsin to mean that the Tribes lack the ability to exercise jurisdiction over these matters. The main issues that seem to be confused in Public Law 280 States pertain to distinguishing between a criminal prohibitory action, a civil cause of action; and a regulatory action.