Discretionary Transfer of Cases to Tribal Court Paul Stenzel, Stenzel Law Office Forest County Potawatomi Law Day October 1, 2009

Transfer to Tribal Courts Petition 7-11; Discretionary Transfer from circuit court to tribal court Public hearing January 8, 2008 Rule approved 7-31-08 Creates a new state statute § 801.54

§ 801.54 Elements of the statute: 1. SCOPE: Where concurrent jurisdiction, circuit court can transfer a case subject to factors.

§ 801.54 2. DISCRETIONARY TRANSFER: If concurrent jurisdiction, THEN can transfer either by: Stipulation of parties OR Application of Teague factors

§ 801.54 3 STAY OF PROCEEDINGS: When circuit court transfers, it issues a stay. Court can modify the stay and take any further action in the interests of justice Stay can last up to 5 years After 5 years, case is dismissed without notice

§ 801.54 4. Decision to stay can be appealed as a matter of right 5. Circuit court retains the filing fee 6. Nothing in the statute alters, diminishes or expands the jurisdiction of either court.

§ 801.54 COMMENT: In considering the factors under sub. (2), the circuit court shall give particular weight to the constitutional rights of the litigants and their rights to assert all available claims and defenses.

§ 801.54 - DISSENT Roggensack, Prosser & Ziegler Four reasons for dissent: 1. Rule is “inadequate and misleading” in regard to subject matter jurisdiction 2. Rule impermissibly alters the substantive rights of tribal members and nonmembers.

§ 801.54 - DISSENT 3. Rule undermines federal and state constitutional and statutory rights of litigants 4. Not enough information presented to court about substantive rights and civil procedure that are available in tribal court.

§ 801.54 Effective January 1, 2009 How to deal with comment Forms have been developed for motion from state court to tribal court Communication with tribal judges

Amendment In February, 2009, the Wisconsin Department of Children and Families petitioned for an amendment to 801.54 addressing child support cases.

Amendment Amendment proposed due to Oneida Child Support seeking transfer of 1,500 cases from Brown County to Oneida Tribal Judicial System.

Amendment The circuit court may, on its own motion or the motion of any party, after notice to the parties of their right to object,

Amendment transfer a post judgment child support, custody or placement provision of an action in which the state is a real party in interest pursuant to s.767.205(2) to a tribal court located in Wisconsin that is receiving funding from the federal government to operate a child support program under Title IV-D of the federal Social Security Act (42 USC 654 et al.).

Amendment The transfer will occur unless a party objects in a timely manner or it is proven that there is good cause to prevent the transfer.

Amendment Upon the filing of a timely objection to the transfer and a showing of cause to prevent the transfer, the circuit court shall conduct a hearing on the record considering all the relevant factors set forth in sub (2).

Amendment Court adopted the amendment by vote on March 9, 2009 and then amended the proposal on May 1, 2009 by adding the following sentence:

Amendment The circuit court must first make a threshold determination that concurrent jurisdiction exists. Decision is at 2009 WI 63.

Amendment Prosser switch his voted and joined the majority to approve the amendment. Roggensack, Gableman, and Ziegler dissent again.

Amendment Dissenting opinion argues: Tribal court subject matter jurisdiction over non-Indians is limited by federal law. Not the same federal and state constitutional rights in tribal courts.

Amendment Negative notice insufficient on child custody issues. No separation of church and state.

Amendment What are some responses to Justice Roggensack’s dissent?

Amendment Indian Civil Rights Act Tribal Courts share sense justice Don’t shrink from defense of sovereignty Litigants can challenge tribal court jurisdiction in federal court. Circuit court retains jurisdiction over case for 5 years.

Amendment Discussion questions: What are the legal and practical challenges to transferring only parts of a case? What should be the obligation of a state court judge to preserve a litigant’s state/U.S. constitutional rights?

Amendment What are the burdens faced by tribal judges in light of Justice Roggensack’s comments? Justice Roggensack has some misperceptions about tribal courts. What can/should be done about correcting them?

Amendment Is it possible for litigants to abuse the discretionary transfer rule? In light of some non-Indian (mis)perceptions about tribal justice systems, what, if anything, should tribes do when developing and structuring their courts and justice systems?

This presentation will be available on my web site: www. paulstenzel This presentation will be available on my web site: www.paulstenzel.com