Native American Press/Ojibwe News

Giving tribal court actions the force of state law?

“Petition for the adoption of a Rule of Procedure for the recognition of tribal court orders”

By Clara NiiSka - May 31, 2002
The Minnesota Tribal Court State Court Forum presented a “Full Faith & Credit Petition” to the Minnesota Supreme Court Advisory Committee on the General Rules of Practice at the Rules Committee’s Wednesday, May 22 meeting at the Minnesota Judicial Center. The proposed rule, amended by the Forum earlier that day, would mandate that Minnesota state courts and law enforcement officials recognize tribal court actions with “full faith and credit,” meaning that the actions of any tribal court would have the full force of state law in Minnesota.

The Minnesota Rules of Court for State Courts fill more than a thousand pages, and detail everything from the proper forms and paper size to be used for documents filed in Minnesota courts, to the professional rules of conduct for judges and attorneys. Like the rules which make baseball a different game than football or golf, the Rules of Court mandate the processes and define the structure within which laws in the state of Minnesota are litigated and enforced.

Press/ON publisher Bill Lawrence, who according to the affidavit he filed with the Rules Committee, has been “addressing the problems of ‘tribal courts’ since the late 1960s,” has been following the activities of the Tribal Court State Court Forum since it was launched in 1996 at the initiative of Justice Sandra Gardebring, who resigned from the Minnesota Supreme Court in 1998. Despite his several requests that he be notified of Forum proceedings, Lawrence learned of the pending Rules Committee hearing of the Forum’s petition one day in advance of the hearing, through publication in the Legal Ledger.

Lawrence, who on May 22nd was in Bemidji making funeral arrangements for his son Joel, faxed an affidavit in objection to the proposed “Full Faith & Credit” rule. Press/ON was represented at the hearing by counsel Randy V. Thompson, and by two writers. This writer, whose concerns about the tribal courts have been deepened by the horror stories she has heard and substantiated – including the legal nightmare experienced by Jawnie Hough – as a writer for Press/ON, also filed an affidavit in objection to the proposed rule.

The Tribal Court / State Court Forum is jointly chaired by Justice Robert H. Schumacher of the Minnesota Court of Appeals, and attorney Henry M. Buffalo Jr. of the law firm Jacobson, Buffalo, Schoessler & Magnuson, who serves as tribal court judge for the Shakopee Mdewakanton Sioux community. Other tribal court judges on the Forum and present at the Rules Committee hearing included Andrew M. Small of the law firm BlueDog, Olson & Small, who is a tribal court judge at Prairie Island and Lower Sioux, and attorney Margaret Treuer, who presently works as a tribal court judge at Bois Forte and Leech Lake. Attorneys for three of the biggest Indian law firms in Minnesota, including Faegre & Benson as well as the partnerships headed by BlueDog and Jacobson, are also part of the “Minnesota Tribal Court Association” which forms part of the Forum.

In the text of the Forum’s petition urging adoption of the proposed “Full Faith & Credit Rule,” the petitioners write that, “full faith and credit oftentimes critically intersects with people’s daily lives.” They point to an “emergency child protection order” – including a child custody directive – and a case involving “two runaway teenagers.” The petitioners’ third example involves the Mille Lacs tribal court’s refusal to recognize a state court order garnishing the wages of a Mille Lacs Band employee.

There is probably little dispute that the jurisdictional interfaces between tribal courts and state courts are contested, confusing, and merit closer scrutiny by the Minnesota appellate courts than they have oftentimes received in the past. Whether the proposed “Full Faith & Credit Rule” is an appropriate remedy to the problems involving tribal courts is an issue that the Supreme Court will need to consider carefully.

There are a number of facets to the question of whether or not the proposed Rule should be accepted by the State of Minnesota.

The process by which the proposed Rule was formulated and presented to the Court is among these. As Bill Lawrence pointed out in a July 3, 1998 editorial, a number of those Forum meetings held on reservations were closed meetings. Closed meetings and secret negotiations may be fairly frequent practice in some parts of Minnesota’s ‘Indian country,’ but fundamentally violate the presumption of openness in Minnesota law.

In a letter to Forum Chair Robert Schumacher and submitted to the Rules Committee, Court of Appeals Justice R.A. Randall sharply criticizes the Forum’s allegations of “unanimous support” for the proposed “Full Faith & Credit Rule.” Randall, whose legal opinions in support of Indian peoples’ rights in the legal cases Cohen v. Little Six, Inc. (1996) and Granite Valley v. Jackpot Junction (1997) were applauded by Press/ON shortly after the decisions were issued, wrote to the Rules Committee in part, “The issue of whether ‘sovereignty,’ ‘tribal immunity’ and ‘tribal courts’ benefit the individual Indian and non-Indians coming on contact with tribal courts and reservation tribal councils is seriously in dispute.” He continues, “Henry Buffalo knows full well of the opposition” to full faith and credit for tribal court decisions, as proposed by the Forum.

Randy Thompson expressed concerns about the Forum’s processes even more sharply in his “Response to petition for adoption of a rule of procedure for the recognition of tribal court orders and judgments,” also filed with the Rules Committee. “It seems more than curious than an experienced and informed counsel who raised questions about the full faith and credit proposal would be excluded from future meetings,” Thompson writes.

In his response, Thompson raises a number of other issues, including whether or not a Rule of Procedure is the appropriate process with which to address the difficult issues adhering to tribal court – state court relationships. “Initially, it should be observed that most states have dealt with full faith and credit issues through the legislative process,” Thompson writes. “The legislative process is better able to weigh the competing policy concerns and craft rules appropriate to each tribal court that seeks recognition of its orders, whether by full faith and credit or comity.”

At its May 22nd meeting, the Rules Committee noted that the proposed “Full Faith & Credit Rule” involved “substantive rights,” and is apparently considering whether the matter should more properly be addressed by the Legislature.

There are a number of other legal and factual issues which will need to be weighed by the Rules Committee, among them the varying legal statuses of the tribal courts across the U.S.—and of the reservations upon which those tribal courts are located.

Both the U.S. and State of Minnesota Constitutions will doubtless be scrutinized by the Rules Committee in considering whether or not to adopt the proposed “Full Faith & Credit Rule.” Most tribal constitutions do not provide for the fundamental rights guaranteed by both the U.S. Bill of Rights and the Minnesota Constitution. The U.S. Supreme Court has previously dealt with such constitutional questions in reference to tribal courts by construing tribal membership – and thus subjecting oneself to the jurisdiction of constitutionally flawed tribal courts – as voluntary. Mandating acceptance of tribal court actions by Minnesota courts radically transforms the extent of tribal court jurisdiction both geographically and with respect to persons subject to its decisions. A state-mandated expansion of tribal court jurisdiction to non-members off-reservation removes much of the ‘voluntary’ aspect of submission to tribal court jurisdiction. Whether or not this would be constitutional is one of the issues before the Rules Committee.

Another concern, addressed by this writer at some length in the Affidavit she submitted to the Rules Committee on May 22nd, is factual. Do tribal courts meet or surpass the standards of justice and due process for courts in the State of Minnesota. There is evidence – extending over decades – that at least the court at Red Lake does not meet the minimum standards for courts in Minnesota.

Whether or not the other tribal courts in Minnesota – one for each reservation, plus the “1854 Treaty Court” – meet Minnesota standards of jurisprudence may not be easily ascertained. Although Forum Chair Henry Buffalo Jr. assured the Rules Committee on May 22nd that tribal court records were “public,” this writer’s experience is that tribal court records can be difficult to obtain. As Prairie Island court administrator Carrie Blaesener explained in response to one request for court records, “You can appreciate the tribe’s position. Due to the nature of the case [an enrollment case in which Press/ON had the active cooperation of the individuals seeking enrollment], those records are not open to the public.”

Apart from the Mille Lacs tribal code, tribal codes are not deposited in the State Law Library, and most of the tribal constitutions deposited in the State legal library system are not up-to-date. Tribal council resolutions – which in some instances are enforced by tribal courts – are similarly unavailable. Tribal court codes and rules of court are changed without notice, and such changes are sometimes clearly adopted to affect the outcome of a particular case. In some instances, tribal court proceedings are presumably based on “custom,” but there is usually no formalized procedure for accurately and fairly establishing what varying “customs” might be – and the “custom” alleged by the tribal court may have no discernable connection to the actual customs of the indigenous peoples upon whose unextinguished rights the tribal courts’ claims to legitimacy depend.

Legal practice in tribal courts is of uneven quality, often depending on lay council, or on a limited number of attorneys whose license to practice in that tribal court depends on the attorney remaining in the ‘good graces’ of the tribal council. Tribal courts are generally an apparatus of the tribal government, subordinate to the tribal council, and subject to political pressure by both the tribal council and other members of the ‘Indian establishment.’

The Forum’s proposed “Full Faith & Credit Rule” is presently under consideration by the Rules Committee, and it is this writer’s understanding that more meetings – and a period of public comment – are planned. Press/ON intends to keep our readers informed about this ongoing issue.