Attorney General Request to Transfer by ojy18439

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									Discretionary Transfer of
 Cases to Tribal Court
  James Botsford, Wisconsin Judicare
    Paul Stenzel, Stenzel Law Office
                Civil Law Seminar
           Thursday, December 4, 2008
                  Appleton, WI
                 Overview
   1. Introduction to Indian Tribes in
    Wisconsin
   2. PL 280 and Bad River Tribe v. Teague,
    2003 WI 118
   3. Petition 7-11 and Wis. Stat. § 801.54
         Introduction to Tribes
   11 federally recognized Indian Tribes in
    Wisconsin
   Sovereign entities
   U.S. Constitution does not apply to Tribes
    when dealing with their own members.
    Talton v. Mayes, 163 U.S. 376 (1896)
   Each Tribe is unique
   Treaty-based relationship
         Introduction to Tribes
   6 Chippewa bands – Bad River, Lac Courte
    Oreilles, Lac du Flambeau, Red Cliff,
    Sokaogon, St. Croix.
   Stockbridge-Munsee (Mohican)
   Menominee
   Oneida
   Ho-Chunk
   Potawatomi
         Introduction to Tribes
   Several tribes have their own web sites.
   Wisconsin Judicare also maintains a listing
    of information about tribes and their
    justice systems.
   www.judicare.org
             Introduction to Tribes
   Bad River Tribal Court
    PO Box 39
    Odanah, WI 54861
    Telephone: 715-682-7107 (ext. 1544)
    Fax: 715-685-2600
   Chief Judge: Ervin Soulier

   Senior Associate Judge: Alton Smart
    Associate Judges: Joe Corbine and Richard L. Ackley
    Tribal Attorney: Carrie Miljevich
    Prosecutor: Erick Arnold
    Clerk of Court: Robin Powless
    Appeals: Three Judge Panel from Wisconsin Tribes, Great Lakes
    Fish & Wildlife Tribes and/or Tribal Judges Association.
    Admission Requirements: Bar Exam and Payment of a $25 fee
    Court's Source of Power: Tribal Constitution and Tribal Ordinance
    Subject Matter Jurisdiction: General civil including domestic
    abuse, divorce, child protection, conservation/Natural Resources,
    truancy, curfew & and landlord/tenant.
            Introduction to Tribes
Forest County Potawatomi Community Court
   PO Box 340
   Crandon, WI 54520
   Telephone: 715-478-7255
   Fax: 715-478-5805
  Judge: Eugene White-Fish
   Associate Judge: Jeryl Perenich
   Tribal Attorney: Jeff Crawford, A.G. and JoDeen Lowe, Asst. A.G.
   Interim Tribal Court Advisor: Paul Stenzel
   Prosecutor: Edward Sheu (Interim)
   Clerk of Court: Penny Carter
   Deputy Clerk: Jennifer VanZile
   Appeals: Process in formative stage
   Admission Requirements: By Court Rule
   Court's Source of Power: Delegated by General Council
   Subject Matter Jurisdiction: Name changes, Guardianships, Employment
   Issues, Small Claims (Up to $5,000), Child Protection, Child Support,
   Garnishments. For particular questions, check with the Clerk of Court.
   Personal Jurisdiction: Members
   Tribal Membership Criteria: In Constitution; 25% Potawatomi Blood
Red Cliff Tribal Courtroom
                Public Law 280
   Enacted in 1953
   28 USC § 1360; 18 USC § 1162
   Grants State of Wisconsin criminal
    jurisdiction on Indian reservations (except
    Menominee)
   Also grants limited civil jurisdiction:
       Civil adjudicatory, Bryan v. Itasca County, 426
        U.S. 373 (1976)
       Not civil regulatory
                   PL 280
   Case law addressing civil regulatory /
    criminal prohibitory difference:
   State v. Lemieux, 106 Wis.2d 484 (Ct.App.
    1982); rules governing uncased firearms are
    civil/regulatory
   State v. St. Germaine, 150 Wis.2d 171
    (Ct.App. 1989), the Court of Appeals ruled
    that Operating After Revocation third and
    fourth offense and operating while
    intoxicated, third offense, were
    criminal/prohibitory.
                   PL 280
   County of Vilas v. Chapman, 122 Wis.2d
    211 (1985); Wisconsin Supreme Court
    adopts the “tradition of self-government”
    test.
                   PL 280
   St. Germaine v. Chapman, 178 Wis.2d 869
    (Ct.App. 1993); court of appeals ruled
    state court did not have jurisdiction to
    hear a domestic abuse issue where the
    Tribe had a domestic abuse law in place.
   State v. Cutler, 1994 WL 656820
    (Wis.App.), (unpublished); fire works are
    civil/regulatory.
                    PL 280
   State v. Burgess, 2003 WI 71, 262 Wis.2d
    354; Wis. Ch. 980 is criminal prohibitory.
     Teague case and protocols
   Because Public Law 280 gives state courts
    civil adjudicatory jurisdiction, it is possible
    to have overlapping jurisdiction in civil
    disputes.
   This happened in Teague v. Bad River
    Tribe, 2003 WI 118.
               Teague case
   The Wisconsin Supreme Court ruled that
    when a case is pending in tribal and state
    courts simultaneously, the state court
    judge must confer with tribal counterpart
    and make an allocation of jurisdiction.
    2003 WI 118.
   Court must apply 13 factors.
               Teague case
   As a result of Teague, the Ninth and Tenth
    Districts and the tribal courts in those
    districts developed and entered into
    protocols governing how overlapping
    jurisdiction would be handled.
Passamaquoddy Tribal Courtroom
       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 – Future:
   Effective January 1, 2009
   How to deal with comment
   Forms are being developed
   Communication with tribal judges
                            APPENDIX
   Ho-Chunk Nation
    PO Box 70
    Black River Falls, WI 54615
    Telephone: 715-284-2722 and 800-434-4070
    Fax: 715-284-3136
   Chief Trial Judge: Todd R. Matha
    Associate Judge: Amanda L. Rockman
    Traditional Court: Donald Blackhawk
    Attorney General: Sheila D. Corbine
    Clerk of Court: Marcella Cloud
    Assistant Clerk of Court: Selina Joshua
    Tribal Court Attorney: Jennifer L. Tilden, Nicole J. Homer
    Appeals: Ho-Chunk Supreme Court, Mary Jo Hunter – Chief Justice; Mark
    Butterfield– Assoc. Justice; Dennis Funmaker – Assoc. Justice
    Admission Requirement: By Court Rule
    Court's Source of Power: Constitution
    Subject Matter Jurisdiction: General civil (by ordinance); Currently child
    protection; collection of child support; election; other governmental disputes,
    housing, employment, gaming, torts, contracts, etc.
    Personal Jurisdiction: Those with tribal interactions
    Tribal Membership Criteria: Persons on official census roll and descendants of
    those persons if the descendants are at least 1/4 Ho-Chunk blood
                         APPENDIX
   Lac Courte Oreilles Tribal Court
    13394 W. Trepania Road
    Hayward, WI 54843
    Telephone: 715-634-8934
    Fax: 715-634-0160
   Judge: James Mohr
    Tribal Attorney: Kris M. Goodwill
    Prosecutor:Paul Shagen
    Clerk and Administrator of Court: Jenny Brazil
    Deputy Clerk: Tammy Barber
    Appeals: Three-judge panel through WTJA
    Admission Requirements: Complete admission request form and $100
    fee for attorneys/$50 fee for lay advocates
    Court's Source of Power: Tribal Resolution, Ordinances and Constitution
    Subject Matter Jurisdiction: Adoption, Civil, Guardianship, Child
    Custody, Conservation, Divorce, Domestic Abuse, Child Welfare, Small
    Claims, Landlord/Tenant Name Change, Paternity, Truancy, Traffic
    Personal Jurisdiction: Tribal members and Non-members depending on
    case
    Tribal Membership Criteria: 1/8 Lac Courte Oreilles or 1/16 Lac Courte
    Oreilles and 1/16 Lake Superior Ojibwe
                            APPENDIX
   Lac du Flambeau Tribal Court
    PO Box 217
    Lac du Flambeau, WI 54538
    Telephone: (715) 588-4200 or 588-4239
    Fax: 715-588-9240
    E-Mail: ldfcourt@newnorth.net
   Chief Judge: Alice K. Soulier
    Associate Judge: Garold Smith
    Clerk: Jane Beeler
    Deputy Clerk I: Theresa Soulier
    Tribal Attorney and Prosecutor: Terry Hoyt
    Appeals: Chapter 80; Tribal Court Code; Three member panel of judges; Notice of
    Appeals must be filed 20 days after judgement entered; Must post bond, filing fee,
    and transcript deposit.
    Admission Requirements: Attorneys: Certificate of Good Standing from Wisconsin
    Supreme Court and fee of $75; Lay Advocates: Submit affidavit and documentation of
    reasons why they should be admitted.
    Court's Source of Power: Tribal Constitution
    Subject Matter Jurisdiction: Civil (includes traffic, child welfare, child support,
    paternity, housing, truancy, domestic abuse, juvenile drinking, landlord/tenant,
    Conservation/Natural Resources on and off reservation, and divorce); and CHIPS for
    children 17 years of age and under, Small Claims, Probate; Criminal (probation by
    judges)
    Personal Jurisdiction: Tribal members; limited non-members Indian and non-Indians;
    and depending on the subject matter.
   Back to Page Index
                             APPENDIX
   Menominee Tribal Court
    PO Box 429
    Keshena, WI 54135
    Telephone: 715-799-3348
    Fax: 715-799-4061
   Chief Justice: Robert Kittecon
    Judges: Stephan Grochowski, Wendell Askenette
    Tribal Attorney: Rita Keshena
    Tribal Prosecutor: Bill Kussel
    Assistant Tribal Prosecutor: Mercedes Swimmer
    D.V. Prosecutor: Vacant
    Clerk of Court: Reynel Tucker
    Appeals: Menominee Supreme Court
    Admission Requirements: Attorney: Certificate of Good Standing and fee; Non-
    Attorney: Certificate of Completion of Paralegal training, fee and meet with Chief
    Justice.
    Court's Source of Power: Tribal Constitution
    Subject Matter Jurisdiction: Criminal, Civil, Juvenile, Probate, Family, Traffic,
    Conservation and Small Claims
    Personal Jurisdiction: Menominee Tribal members; Non-members regarding on
    reservation Small Claims; and pursuant to Inter-Tribal Agreements
    Tribal Membership Criteria: At least 1/4 Menominee Blood
                             APPENDIX
   Oneida Tribal Judicial System
    PO Box 19
    Oneida, WI 54155
    Telephone: 920-497-5800
    Fax: 920-497-5805
   Chief Judicial Officer: Winnifred L. Thomas
    Deputy Chief Judicial Officer: Leland Wigg-Ninham
    Associate Judicial Officers: Mary Adams, Janice L. McLester, Dorothy Ninham,
    Lois Powless, Anita Barber, Robert Christjohn, Jennifer Webster, Gerald Cornelius and
    Gary Jordan
    Staff Attorney: Paul Stenzel
    Administrator: James Martin
    Appellate Court: June Cornelius
    Clerk of Trial Court: Leyne Orosco
    Deputy Clerk of Court: Norma Brzezinski
    Appellate Body: Five Judicial Officers
    Trial Body: Three Judicial Officers
    Subject Matter Jurisdiction: Civil including Probate, Employment and Contract
    Personal Jurisdiction: Tribal Members, Employees, Others Subject to Tribal Laws
    and Ordinances
    Admission Requirement: None
    Judicial Authority: Tribal Ordinance and General Tribal Council Approval
                             APPENDIX
   Red Cliff Tribal Court
    88385 Pike Rd., Hwy. 13
    Bayfield, WI 54814
    Telephone: (715) 779-3725
    FAX: (715) 779-3724
   Chief Judge: Donald Gurnoe
    Associate Judge: Robert W. Buffalo
    Tribal Attorney: Dave Ujke
    Tribal Prosecutor: Laura Belanger
    Clerk of Court: Heather Deragon
    Appeals: Three-Judge Panel consisting of Judges from other tribes
    Admission Requirements: Written and oral exam on tribal law and a fee.
    Court's Source of Power: Constitution and Ordinances
    Subject Matter Jurisdiction: Conservation violations On/Off reservation; Small
    claims, Domestic abuse; Traffic; Child welfare; Tribal ordinances; Extensive civil code;
    Divorce
    Personal Jurisdiction: Tribal members; limited non-member
    Tribal Membership Criteria: Direct descendants of 1896 and 1934 Rolls and Vote
    of tribal members. Children born on the reservation to a tribal member are
    automatically members. Children born off the reservation may be automatically
    admitted provided that the birth is reported within one year. Those persons whose
    births are reported later than one year must be voted into membership.
                         APPENDIX
   St. Croix Tribal Court
    24663 Angeline Avenue
    Webster, WI 54893
    Telephone: 715-349-2195
    Fax: 715-349-5784
   Chief Judge: Gloria Merrill
    Associate Judge: Crystal LaPointe
    Tribal Prosecutor: Caroyl Long
    Tribal Attorney: Andrew Adams
    Clerk of Court: Penny Nelson
    Assistant Clerk of Court: Jackie Churchill
    Appeals: Thee-member panel composed of judges of other tribal courts.
    Admission Requirement: $25 Fee
    Court's Source of Power: Tribal Constitution; Authority given by Tribal
    Council; and not a separate branch of government
    Subject Matter Jurisdiction: General civil jurisdiction
    Personal Jurisdiction: St. Croix Tribal members; non-members regarding
    Reservation small claims; and pursuant to Inter-Tribal agreements.
    Tribal Membership Criteria: At least ancestry and 1/2 Indian blood.
                        APPENDIX
   Sokaogon (Mole Lake) Tribal Court
    3051 Sand Lake Road
    Crandon, WI 54520
    Telephone: 715-478-7608
    Fax: 715-478-7631
    E-Mail: crissctc@newnorth.net
   Chief Judge: Fred A. Ackley, Jr.
    Judges: Debra E. VanZile, Kerry A. Fox, and Chris McGeshick
    Tribal Attorney: Glenn Reynolds
    Tribal Prosecutor: Gary D. Knudson
    Clerk of Court: Chris Burnett
    Appeals: Three-member Judicial Panel from Great Lakes Tribal Judges
    Association
    Admission Requirements: Must be admitted to Wisconsin Bar and pay a
    $75 fee
    Court's Source of Power: Tribal Constitution and Tribal Ordinance
    Subject Matter Jurisdiction: Conservation violations; some child
    protection and domestic abuse matters; and Judges perform marriages
    Personal Jurisdiction: Tribal members
    Tribal Membership Criteria: Born to Tribal member; descendant of a
    tribal member listed on 1937 Roll.
                       APPENDIX
   Stockbridge-Munsee Tribal Court
    N8476 Moh He Con Nuck Road
    Bowler, WI 54416
    Telephone: 715-793-4397
    Fax: 715-793-4880
   Chief Judge: Robert Miller, Jr.
    Associate Judge: Mary Ann Higgins
   Tribal Attorneys: Howard Bichler and Bridget Swanke
    Tribal Prosecutor: (shared)
    Clerk of Court: Wayne Malone, Sr.
    Appeals: Three-Judge panel (one from Stockbridge-Munsee and
    two from Wisconsin Tribal Judges Association)
    Admission Requirement: Examination for admission to practice
    Court's Source of Power: Tribal Ordinance
    Subject Matter Jurisdiction: General Civil (by ordinance),
    including employment, child protection, domestic abuse, housing
    and probate, family, youth in need, guardianship, divorce.
    Personal Jurisdiction: Those with Tribal interactions
    Tribal Membership Criteria: 25% Stockbridge-Munsee Blood

								
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