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Native American Press/Ojibwe News
Tribal court
orders and judgments may be unconstitutional in Minnesota
re: petition for recognition of tribal court orders
and judgments
November 8, 2002
Honorable Justices of the Supreme Court of Minnesota:
The importance of whether or not to adopt a court rule expediting the
Minnesota Courts' acceptance of any "judgment, decree,
order, apprehension order, protection order, warrant, subpoena, record
or other judicial act of a tribal court of a federally-recognized
Indian tribe" far outweighs the apparent significance of a rule
perhaps most likely to affect approximately 54,967 adults and children
who were "self-identified" as "Indians"
in Minnesota for the 2000 Census.
The key issue is whether the Minnesota Supreme Court
will uphold fair and equal applicability of the Minnesota Constitution
and Minnesota laws in Minnesota courts, or whether the Court will
systematically abrogate the civil and legal rights of specific groups
of Minnesotans and adopt a proposed rule grounded in defective process,
inadequate information, and biased arguments.
As was clear from my testimony before this Court on
October 29th, I am urging the Court to reject the proposed "full faith
and credit" rule. I briefly describe the
grounds for doing so, at this point mostly because the thorny issues at
the interface between tribal courts and state courts will continue to
fester until either this Court or the U.S. Supreme Court unambiguously
establishes that Minnesota courts will not by rule or otherwise
"abridge the privileges or immunities of citizens of the United
States; nor "deprive any person of life, liberty or
property without due process of law, nor deny to any person within
[Minnesota] jurisdiction the equal protection of the laws"
[U.S. Const. 14th Amendment, see also Minn. Const. Art. I, Secs. 7, 8].
I also very briefly mention concerns about problems the
processes through which the Tribal Court / State Court Forum arrived at
its proposed "rule of procedure for the recognition of tribal
court orders and judgments," and note that the factual and
background information presently before the Court is grievously
inadequate. My purpose is, in part, to encourage the Minnesota
Appellate Courts to initiate and maintain a collection of tribal codes,
tribal council resolutions, and other pertinent information as a part
of the public State Law Library system, in part so that anyone who does
become involved with a tribal court in Minnesota has access to fairly
up-to-date, comprehensive information.
I. Problems with Tribal Court / State Court
Forum's process
There are several serious problems with the process by which the
proposed "full faith and credit" rule has come to the
Minnesota Supreme Court. These include:
1. Procedural problems. I request judicial notice of the
minutes of the Tribal Court /State Court Forum
("Forum") in their entirety. The minutes of those
meetings held on-reservation are not part of the public record. Some of
the on-reservation Forum meetings were closed to the public, some were
meetings at which the public was barred from comment, and some were
devoted to planning lobbying strategies intended to secure acceptance
of the proposed "full faith and credit" rule. Whether
or not the exemptions to Public Law 280's unambiguous
extensions of state jurisdiction [28 USCS § 1360]
delineated by Bryan v. Itasca County, 426 U.S. 373 (1976), etc., could
be stretched to include Minnesota judges' nonpublic meeting
with tribal employees and tribal attorneys and to discuss matters which
would significantly expand the power of those attorneys'
clients, those closed and off-the-record Forum meetings give at the
very least the appearance of impropriety.
2. The Forum did not properly fulfill the mandate from
the Supreme Court: to study the issues involving tribal courts in
Minnesota. Some of the requisites for a proper study were discussed at
early meetings, but such balanced and comprehensive research quickly
became overshadowed by certain Forum members' push for "full faith and
credit."
3. Documents crucial to any proper study of tribal
courts are apparently absent from the Forum's records, and
there is no indication that Forum members examined them. Many of these
records are not a part of the state law library system and, in fact,
are not catalogued as a part of any public library in Minnesota. One of
the Forum's tribal attorney/tribal court judges (Andrew Small)
explained at one meeting that tribal courts are "different." Precisely
how tribal courts are "different" is important.
The following are among the documents indispensable to
understanding the day-to-day operation of tribal courts, and should
have studied for each of Minnesota's reservations:
a) current and historical versions of tribal
constitutions,
b) current and historical tribal codes, rules of
procedure, rules of court, etc.,
c) tribal council resolutions in their full corpus,
d) complete tribal court dockets, thorough consideration
of tribal court records, and extensive studies of cases heard in tribal
courts including interviewing the parties in a statistically valid
sampling of those cases
e) list of judges who have served on each tribal court
for the past ten years, processes used in hiring, grounds for
dismissal, codes of ethics and professional conduct, grounds for
recusal, judges available for appeal
f) criteria for establishing "custom"
and any compilations detailing such "customs"
g) complete list of the tribal court orders, judgments,
etc. entered into state courts from each tribal court, as well as the
state courts' disposition of those cases.
The Forum should have thoroughly assessed the
jurisdiction asserted by each tribal court in Minnesota from the
several relevant vantages. If tribal court jurisdiction is in some
instances contingent on someone being "Indian," how is
that determined? Are tribal enrollment records and the underlying
genealogies public information? Are there extant or potential
enrollment disputes, and how do these affect tribal court jurisdiction?
The Forum should have also critically examined the
validity of the grounds upon which the legitimacy of each tribal court
is asserted: historically and factually, as well as legally.
Furthermore, there are some contentious and fairly
complicated disputes involving certain of the tribal courts in
Minnesota. In addition to questions about the legitimacy of tribal
courts under the Minnesota Chippewa Tribe constitution, there is a
longstanding and convoluted dispute about the court at Red Lake. The
U.S. Government defines the Red Lake court as a "Court of
Indian Offenses," subject to the federal regulations in 25
C.F.R. Chapter 11 as well as to the U.S. Constitution and to federal
law including the Freedom of Information Act, U.S. v. Red Lake Band of
Chippewa, 426 U.S. 373 (1987). The Forum's summary, appended to
the petition, describes it as the "Red Lake Nation Tribal
Court," which is a substantially different sort of entity in
terms of jurisdiction as well as applicable federal case law.
Instead of doing adequate research, comprehensively
surveying the morass of law, and carefully considering the facts, the
Forum apparently succumbed to the vested interests of the tribal
attorneys/tribal court judges who comprise the "tribal"
half of the Forum, and fairly quickly moved toward advocacy of "full
faith and credit."
Those members of the Forum who are judges should not
have reached this kind of decision without first considering the facts,
the applicable laws, regulations, etc.
4. There are seven people whose requests to speak at the
Supreme Court's October 29, 2002 hearing were denied. All but
one of those thus silenced would have spoken against the proposed rule.
The Supreme Court should not adopt any rules when opposing voices are
not fully heard. A majority of the people barred from speaking were
Indians, several of them people from White Earth who filed photocopies
of documents in support of arguments that Minnesota Chippewa Tribe
(MCT) tribal courts are illegal courts established by a corrupt
government.
5. Indian people have been inadequately represented
throughout the Forum's process. In general, the people
advocating for the "full faith and credit" rule are
professionals and members of the "Indian
establishment," not the people whose lives would be most deeply
affected by the proposed rule.
II. The Minnesota Supreme Court is mandated to uphold
the state and federal constitutions
As the "third branch" of government, the
Court serves a number of functions in Minnesota. Crucial among them is
to protect the rights of the people in Minnesota as guaranteed by the
state and federal constitutions. That's everyone "“ not 'everyone
except Indians.'
Arguments by the proponents of "full faith and
credit" have centered around themes of efficiency, uniformity,
potentially urgent cases at the interface of tribal and state courts,
and respect for Indian tribal councils. They have also argued in terms
of "comity." "Comity" means, in part, 'respect' "“ and undiscerning
'respect' makes the concept meaningless.
State and federal protections including the Miranda
warning, requirements for search warrants, etc. are not "efficient,"
but are crucial to U.S. democracy.
The "uniformity" argument is
inapplicable because tribal courts in Minnesota are far from uniform.
The potentially urgent cases-in-point cited by the
proponents of the "full faith and credit" rule are
irrelevant. State "full faith and credit" is
unnecessary because such instances are already covered by federal law
(and are, in fact, the only two areas of federal law in which there is
general recognition of "public acts, records, and judicial
proceedings of Indian tribes):
"25 USCS § 1911. Indian tribe
jurisdiction over Indian child custody proceedings. "¦
(d) Full faith and credit to public acts, records, and judicial
proceedings of Indian tribes. The United States, every State, every
territory or possession of the United States, and every Indian tribe
shall give full faith and credit to the public acts, records, and
judicial proceedings of any Indian tribe applicable to Indian child
custody proceedings to the same extent that such entities give full
faith and credit to the public acts, records, and judicial proceedings
of any other entity,"
and "Sheila's law":
"18 USCS § 2265. Full faith and
credit given to protection orders. (a) Full faith and credit. Any
protection order issued that is consistent with subsection (b) of this
section by the court of one State or Indian tribe (the issuing State or
Indian tribe) shall be accorded full faith and credit by the court of
another State or Indian tribe (the enforcing State or Indian tribe) and
enforced as if it were the order of the enforcing State or tribe.
"(b) Protection order. A protection order issued
by a State or tribal court is consistent with this subsection if--
"(1) such court has jurisdiction over the
parties and matter under the law of such State or Indian tribe; and
"(2) reasonable notice and opportunity to be
heard is given to the person against whom the order is sought
sufficient to protect that person's right to due process. In the case
of ex parte orders, notice and opportunity to be heard must be provided
within the time required by State or tribal law, and in any event
within a reasonable time after the order is issued, sufficient to
protect the respondent's due process rights."
To the best of my knowledge, neither of these sections
of federal code has been challenged on constitutional grounds.
However, a precedential Minnesota case, In Re the Matter
of the custody of: K.K.S., 508 N.W.2d 813 (1993), is illustrative of
one of the problems at the interface between tribal courts and state
courts. In In re K.K.S., the Minnesota Court of Appeals upheld the Red
Lake tribal court's assertion of custody jurisdiction over
K.K.S., the child of Patricia Neadeau, a Red Lake enrollee, and Aaron
Stenseng, a non-Indian. The problem is that according to Red Lake
enrollment records, K.K.S. is also non-Indian: not enrolled, and with a
potential "Red Lake blood quantum" of 13/64 not
eligible for tribal membership, not entitled to tribal benefits, not
reasonably an "Indian child" under federal law, and not
generally subject to the jurisdiction of the Red Lake court. This
writer asked Stenseng's attorney, Michael Ruffenach, if he
raised the issues of enrollment and tribal court jurisdiction.
Ruffenach claimed he did, although the state courts'
consideration of this aspect of the tribal court's jurisdiction
is not apparent from those court records open to the public.
Should Stenseng and his child have been able to avail
themselves of due process in Minnesota courts? Or "¦ on
what constitutionally-sustainable grounds was it denied? What about the
Minnesota Constitution, Art. I, § 2?
III. Tribal courts are not courts of law within the
meaning of either the U.S. or Minnesota constitutions.
The United States Constitution vests the "judicial power
of the United States "¦ in one
supreme court, and in such inferior courts as the Congress may, from
time to time, establish," Art. III § 1, and
delineates certain criteria which must be observed by state courts. The
U.S. Constitution does not authorize the Executive branch (i.e. the
Department of the Interior) to establish courts, and the Tenth
Amendment makes it clear that "the powers not delegated to the
United States by the Constitution, nor prohibited by it to the states,
are reserved to the states, respectively, or to the people."
Although Congress funds "tribal forums,"
and in one single instance has mandated recognition of "a
protection order issued by a "¦ tribal court,"
there is no law establishing tribal courts.
The Minnesota Constitution vests "the judicial
power of the state "¦ in a supreme court, a court of
appeals, if established by the legislature, a district court and such
other courts, judicial officers and commissioners with jurisdiction
inferior to the district court as the legislature may
establish," Art. VI, § 1.
Tribal courts are clearly not "courts of
law."
As noted above, there are two very different sorts of
'courts' operating on Minnesota reservations. The 'court' at Red Lake
is listed in 25 CFR §
11.100 as a "Court of Indian Offenses."
The U.S. Court of Appeals, Ninth Circuit, describes the
establishment of Courts of Indian Offenses in Colliflower v. Garland,
342 F.2d 369 (1965), quoting from the Annual Report of Commissioner of
Indian Affairs to the Secretary of the Interior, 1885:
"'Under date of April 10, 1883, the then
Secretary of the Interior gave his official approval to certain rules
prepared in this office for the establishment of a court of Indian
offenses at each of the Indian agencies, except the agency for the five
civilized tribes in the Indian Territory. It was found that the longer
continuance of certain old heathen and barbarous customs, such as the
sun-dance, scalp-dance, polygamy, etc. were operating as a serious
hindrance to the efforts of the Government for the civilization of the
Indians. "¦
"'There is no special law authorizing
the establishment of such a court, but authority is exercised under the
general provisions of law giving this Department supervision of the
Indians. The policy of the government for many years past has been to
destroy the tribal relations as fast as possible and to use every
endeavor to bring the Indians under the influence of law.' (P.
xxi) [emphasis added]"
United States v. Clapox, 35 F. 575 (1888), the legal
case generally cited as legitimating these "courts,"
reiterates the understanding that they are not courts of law:
"These 'courts of Indian
offenses' are not the constitutional courts provided for in
section 1, art. 3, Const., which congress only has the power to 'ordain
and establish,' but mere educational and
disciplinary instrumentalities, by which the government of the United
States is endeavoring to improve and elevate the condition of these
dependent tribes to whom it sustains the relation of guardian. In fact,
the reservation itself is in the nature of a school, and the Indians
are gathered there, under the charge of an agent, for the purpose of
acquiring the habits, ideas, and aspirations which distinguish the
civilized from the uncivilized man.' [quoted from
Colliflower]"
In Colliflower, the U.S. Court of Appeals wrote that,
"[u]nder these circumstances, we think that these courts
function in part as a federal agency and in part as a tribal agency,
and that consequently it is competent for a federal court in a habeas
corpus proceeding to inquire into the legality of the detention of an
Indian pursuant to an order of an Indian court," but, noting
the non-uniformity of tribal courts, confined its decision to those on
the Ft. Belknap reservation.
The development of the Court of Indian Offenses at Red
Lake closely parallels that at Ft. Belknap, and is detailed in the
"'Indian Courts': a brief history"
series printed in the Native American Press/Ojibwe News in June 2001,
and included in the appendices below.
The governments on the other six Ojibwe reservations are
organized as "Reservation Business Councils" of the
Minnesota Chippewa Tribe. The Revised Constitution of the Minnesota
Chippewa Tribe, as posted by the Leech Lake Band of Ojibwe on their
tribal government's official website, is appended below. The
tribal courts of the Minnesota Chippewa Tribe (MCT) are not authorized
by MCT constitution.
Both MCT and Dakota tribal courts were established and
are operated by tribal governments established pursuant to the 1934
Indian Reorganization Act (I.R.A.), 25 USCS § 461 et seq.:
"25 USCS § 476. Organization of
Indian tribes; constitution and by-laws and amendment thereof; special
election.
"(a) Adoption; effective date. Any Indian tribe
shall have the right to organize for its common welfare, and may adopt
an appropriate constitution and bylaws, and any amendments thereto,
which shall become effective when--
"(1) ratified by a majority vote of the adult
members of the tribe or tribes at a special election authorized and
called by the Secretary under such rules and regulations as the
Secretary may prescribe; and
"(2) approved by the Secretary pursuant to
subsection (d) of this section."
and,
"(e) Vested rights and powers; advisement of
presubmitted budget estimates. In addition to all powers vested in any
Indian tribe or tribal council by existing law, the constitution
adopted by said tribe shall also vest in such tribe or its tribal
council the following rights and powers: To employ legal counsel; to
prevent the sale, disposition, lease, or encumbrance of tribal lands,
interests in lands, or other tribal assets without the consent of the
tribe; and to negotiate with the Federal, State, and local governments.
The Secretary shall advise such tribe or its tribal council of all
appropriation estimates or Federal projects for the benefit of the
tribe prior to the submission of such estimates to the Office of
Management and Budget and the Congress.
"(f) Privileges and immunities of Indian tribes;
prohibition on new regulations. Departments or agencies of the United
States shall not promulgate any regulation or make any decision or
determination pursuant to the Act of June 18, 1934 (25 U.S.C. 461 et
seq., 48 Stat. 984) as amended, or any other Act of Congress, with
respect to a federally recognized Indian tribe that classifies,
enhances, or diminishes the privileges and immunities available to the
Indian tribe relative to other federally recognized tribes by virtue of
their status as Indian tribes. "¦ [emphasis
added]"
There is no Congressional delegation of power to the
tribal governments established under its aegis which would legalize
tribal courts.
The BIA's argument that these "tribal
forums" rest on unextinguished 'tribal
sovereignty' does not withstand scrutiny on either historical
or cultural grounds. To this point, there is appended here a copy of
Lorraine Kingsley's 1986 paper on "discipline."
I am also providing the Minnesota Supreme Court with a copy of
Wub-e-ke-niew's We Have the Right To Exist (1995), which
addresses this and other related issues from the vantage of an
aboriginal indigenous person of Red Lake. Wub-e-ke-niew's work
may not be 'easy-to-read' for people whose think in
European-American terms. He did not structure his analysis as a scholar
trained in those traditions would have, he didn't think within
those structures "“ and that's relevant. Tribal courts
bear no resemblance to indigenous systems based on consensus, respect
for the wisdom and advice of elders, personal responsibility grounded
in indigenous religion and epistemology, community values centered in
harmony "¦
It should be clear from the foregoing that present-day
tribal courts on Minnesota reservations are not "courts of
law" within the meanings of the U.S. and Minnesota
constitutions. Particularly given the "business
committee" orientations of the tribal governments established
under the 1934 I.R.A., it may be enlightening to contemplate such
"tribal forums" in terms of company-controlled
dispute-resolution/disciplinary bodies in "company
towns."
IV. The Minnesota Supreme Court's mission
statement reads, in part, "justice according to the
law," which must include upholding the
constitutionally-protected rights of everyone in Minnesota.
Whatever the jurisdictional situation(s) on any
particular reservation "“ and this is not consistent across all
Minnesota reservations "“ the moment a tribal court order or
judgment crosses into Minnesota jurisdiction, it is a piece of paper in
Minnesota. It must be subject to rights and protections in the
Minnesota and federal constitutions.
Further, as the Minnesota Supreme Court has ruled in
both criminal and civil matters, if the intent is for the
on-reservation action to have an effect in Minnesota, state
jurisdiction extends back across the reservation line along the cause
of action.
In State of Minnesota v. Donald Rossbach, Jr., 288
N.W.2d 714 (1980), the Minnesota Supreme Court ruled that "State had
jurisdiction to prosecute a defendant for aggravated
assault where the facts revealed that defendant, standing on an Indian
Reservation, fired a high-powered rifle at a deputy sheriff standing
across the border on Minnesota land." If an on-reservation
action is committed with the intent of having an effect in Minnesota,
the act itself is subject to Minnesota law.
In State of Minnesota, By its Minnesota State Ethical
Practices Board v. The Red Lake DFL Committee, 303 N.W.2d 54 (1981),
the Minnesota Supreme Court considered the activities of political
committee which "occurred within the confines of the
reservation." The Court concluded, however, that,
"Plainly, the activities put in motion by the
Committee were not confined to the reservation nor were they intended
to be so circumscribed. Cf. State v. Rossbach, 288 N.W.2d 714 (Minn.
1980) "¦
"Defendants say nothing they did (placing the
order; signing the check) occurred outside the reservation, but they
choose to ignore that what they did caused something to occur beyond
the reservation boundaries, namely, the dissemination of a political
message, which is the activity here sought to be regulated.
""¦ We agree with the trial court
that activities initiated within the reservation and reasonably
calculated to influence voters outside the reservation are a proper
concern of the state and subject to its reasonable regulation. In fact,
defendants did not demonstrate that compliance with [Minn. Stat. §
10A.14] would have any adverse effect on tribal
self-government, but even if some interference had been shown, the
public interest in protecting the integrity of the election process,
particularly through disclosure of significant financial influences on
elected officials, is a compelling public concern. "¦
[emphasis added]."
It is likely that most of the tribal court judgments,
decrees, orders, apprehension orders, protection orders, warrants,
subpoenas, and other judicial acts subsequently entered into Minnesota
jurisdiction are intended to "cause "¦ something
to occur beyond the reservation boundaries." It is indisputable
that the public interest in Minnesota includes protecting the integrity
of Minnesota's courts and in upholding the
constitutionally-guaranteed civil rights of the people of Minnesota.
V. Tribal courts in Minnesota are part of a tightly
centralized "tribal establishment" structure created by
the Bureau of Indian Affairs in the 1930s, grounded in obsolete
apartheid notions from an era when "Jim Crow" had not
yet been discredited.
Like the BIA which it supplants "“ and with it
contracts for more than a hundred million dollars annually in federal
programming1 for Minnesota tribes "“ the "tribal
establishment" controls almost every aspect of Indians'
lives on the reservation: housing, jobs, police, government, tribal
businesses "“ and the courts.
Santa Clara Pueblo et al. v. Martinez et al. 436 U.S. 49
(1978) effectively gutted the Indian Civil Rights Act. In that case,
often cited as precedent by tribal attorneys, the U.S. Supreme Court
ruled that,
"A federal court civil action for declaratory
and injunctive relief to obtain redress for an alleged violation of a
right protected against infringement by an Indian tribe under Title I
of the Indian Civil Rights Act (25 USCS 1302) cannot be brought against
an officer of an Indian tribe, since no such private remedy can be
implied from the statute, federal judicial review of tribal action
being expressly authorized in Title I only through the provision making
the writ of habeas corpus available to test the legality of a person's
detention by an Indian tribe (25 USCS 1303). (White J., dissented from
this holding.)"
The U.S. Supreme Court also made it clear in Santa Clara
Pueblo v. Martinez that "tribal sovereignty" is
generally limited to tribes' "power of regulating their
internal and social relations." The Court clarified such
limitations on exercise of 'tribal sovereignty' in
Montana v. United States, 450 U.S. 544 (1981):
"The exercise of tribal power beyond what is
necessary to protect tribal self-government or to control internal
relations is inconsistent with the dependent status of the tribes and
cannot survive without express congressional delegation."
The Supreme Court also ruled in the same case that, with
certain limited exceptions,
"The inherent sovereign powers of an Indian
tribe do not extend to the activities of nonmembers of the
tribe," nor do such tribal powers extend beyond the reservation.
The U.S. Supreme Court recently ruled in Nevada v.
Hicks, 533 U.S. 353 (2001) that: "The Tribal Court had no
jurisdiction over the [42 U.S.C.] § 1983 [civil rights]
claims. Tribal courts are not courts of 'general
jurisdiction.' The historical and constitutional assumption of
concurrent state-court jurisdiction over cases involving federal
statutes is missing with respect to tribal courts, and their inherent
adjudicative jurisdiction over nonmembers is at most only as broad as
their legislative jurisdiction. Congress has not purported to grant
tribal courts jurisdiction over § 1983 claims, and such
jurisdiction would create serious anomalies under 28 U.S.C. §
1441."
However, there is virtually no effective redress for
tribal courts' violations of Indian people's
constitutional rights on-reservation. There is also no appeal out any
tribe's particular tribal court system. Tribal court judges and
attorneys are not bound by professional ethics and professional
standards, and as the documentation provided to this court by others
indicates, there are in some instances blatant conflicts of interest
affecting tribal courts in Minnesota.
VI. Abuses deriving from tribal courts are symptomatic
of structural problems in the system
As a case in point illustrating abuses deriving from
tribal courts (and from jurisdiction-kiting), I have appended most of
the news articles that the Native American Press/Ojibwe News has
published about the custody dispute between Jawnie Hough, a Leech Lake
enrollee, and Donald Brun, Jr., a Red Lake enrollee. Also appended is a
copy of the most recent Order filed by Judge Terrance Holter of the
Ninth Judicial District, Beltrami County [September 24, 2002].
The principal differences between the Hough / Brun case
and certain other custody disputes involving the Red Lake tribal court
are the light of public scrutiny shed on the case through
Press/ON's ongoing coverage, and that Ms. Hough has generally
had competent legal representation.
As of November 5th, 2002, Donald Brun, Jr. had not
responded to the Minnesota Court's most recent order to return
the child, Meghan Brun.
VII. Irregardless of what happens on an Indian
reservation under whatever tribal jurisdiction, what happens in
Minnesota is clearly the business of the Minnesota courts, and
protecting the rights of people in Minnesota is among the mandates of
this court.
There is no legal reason for not guaranteeing the full
protections of the Minnesota Constitution to everyone within Minnesota
jurisdiction "“ and there are compelling constitutional reasons
to do so. "Full faith and credit" for any "judgment, decree, order,
apprehension order, protection order,
warrant, subpoena, record or other judicial act of a tribal court of a
federally-recognized Indian tribe" is unconstitutional in
Minnesota, as the foregoing discussion and appendices hopefully make
clear.
The problems deriving from tribal courts probably
aren't going to go away any time soon, but the proposed "full faith and
credit rule" is not the proper way to
resolve the problems.
VII. I ask and request that this court not accept the
proposed FF&C rule.
I ask and request that this court:
1. Do the comprehensive study that the Tribal Court /
State Court Fourm did not, specifically including thorough and balanced
scrutiny of:
a. tribal codes / constitutions
b. state and federal laws, precedents, and not only the
treaties and "agreements" but also the treaty
transcripts and the lists of names (signature rolls, annuity rolls) of
the people affected by the treaties
c. the full body of tribal council resolutions now in
effect
d. all tribal court dockets over the past ten years, as
well as thoroughly studying a statistically valid sample of court cases
from each tribal court
2. And, in the interim:
· recognize the hardships of Indian
litigants and the difficulties of finding attorneys on or near
reservations who are willing to challenge the tribal establishment
· make it clear that tribal court orders
and judgments enter the Minnesota court system as evidence, not as
orders and judgments from courts of law, because tribal courts are not
courts of law
· clearly establish that the burden of
proof is on the party submitting the tribal court order or judgment to
a state court for consideration
· ensure that tribal constitutions, MCT
reservation bylaws, tribal codes, rules of court, council and RBC
resolutions, and all other relevant legal documents are deposited and
catalogued in the state law library system, and hopefully also
available online
· adopt a rule that in order to be
considered by a Minnesota court, the party submitting the tribal court
order or judgment must also provide:
a) grounds for assertion of jurisdiction
b) all applicable proofs of service
c) clear and convincing evidence that all
constitutionally-protected rights were respected during all phases of
the tribal court proceedings
d) court records, and transcripts on request
· and provide incontrovertibly that any
tribal court order or judgment will be rejected by Minnesota courts if
there is inadequate provision for discovery, subpoenas, or
unavailability of other evidence, including tribal enrollment records
where relevant
· Make it clear to the district courts
that tribal court orders and judgments are not court decisions
protected from collateral attack
Minnesota courts have a mandate to uphold the rights of
the people of Minnesota.
Thank you.
Clara NiiSka
1 U.S. Department of Commerce Single
Audit Database, http://harvester.census.gov/sac/dissem/entity.html
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