November 1, 2002

  Native American Press / Ojibwe News

Supreme Court hears arguments and testimony:
Should there be full faith and credit for tribal courts in Minnesota?

by Clara NiiSka

The Minnesota Supreme Court convened on Tuesday, October 29th, to hear testimony and oral arguments about the petition submitted by the Minnesota Tribal Court/State Court Forum to amend Minnesota’s rules of court and grant a presumption of validity and “full faith and credit” to any “judgment, decree, order, apprehension order, protection order, warrant, subpoena, record, or other judicial act” of any “tribal court of a federally-recognized Indian tribe.”

If the Supreme Court accepts the proposed “full faith and credit rule,” then orders, judgments, and other acts of any tribal court will be rubber-stamped into the Minnesota court system, and will presumably carry even more legal force than a comparable decision of a Minnesota district court, since the district court decision can be appealed but the tribal court decision will be immune from ‘collateral attack.’

According to the proposed rule, a person objecting to a Minnesota court’s acceptance of a tribal court order, judgment, etc., will have the burden of proof of demonstrating that a tribal court lacked jurisdiction, that the order was “obtained by fraud, duress, or coercion,” that there was insufficient notice, or that except for emergency orders, that the “order or judgment is not final under the laws and procedures of the rendering court.”  It is not clear whether or not “personal or subject matter jurisdiction” would be evaluated under the often broad jurisdictional claims in tribal codes.

This proposed full faith and credit rule grants sweeping power to tribal courts – any tribal court, not just Minnesota tribal courts – and effectively extends the jurisdiction of tribal courts to anyone in Minnesota whose business touches any reservation.  Thus, for example, if any newspaper, not just the Native American Press/Ojibwe News, published an article critical of any tribal government, the newspaper could be sued for alleged libel in tribal court (no tribal constitution in Minnesota protects freedom of the press), and the tribal court’s judgment enforced through the Minnesota courts.  The proposed rule does not require that tribal courts seeking a Minnesota ‘full faith and credit’ rubber-stamp adhere to either Minnesota or federal standards of proof, so alleged “libel” could well be determined by whatever the tribal chairman said it was in the chairman’s own tribal court.  The proposed full faith and credit rule does not require that transcripts and court records be filed with the state court, and in any event under “full faith and credit,” the tribal court’s decision would be unrebuttable as a “final judgment” of an alleged court of law, and countersuit by the newspaper would be barred by tribal sovereignty.

The Minnesota Supreme Court heard testimony and oral argument for an hour and a half on Tuesday.

Chief Justice Kathleen Blatz convened the court.  Judge Robert Schumacher of the Minnesota Court of Appeals and co-chair of the Tribal Court/State Court Forum, introduced the full faith and credit petition.  Judge Schumacher favors adoption of the petition.  “This is the right thing to do,” he said, and supported the forum’s petition by mentioning the support of the Minnesota Bar Association and other organizations lobbied by the forum.  Judge Schumacher was followed by forum co-chair Henry Buffalo, tribal court judge at Shakopee and attorney representing the Lower Sioux tribal council. Buffalo said that the forum disagreed with the recommendations of the Supreme Court’s advisory committee that the proposed rule not be adopted, and claimed that tribal courts “protect the civil rights of litigants” through the Indian Civil Rights Act.  Minnesota 4th District (Hennepin County) Court Judge Robert Blaesner, a member of the Tribal Court/State Court forum, also advocated the proposed rule.

David Herr, reporter for the Supreme Court’s Advisory Committee on the General Rules of Practice, began by saying that “on behalf of the committee, we want to make sure that we are properly put on record as not being opponents of this.  We studied the issue at the court’s request and looked it.  We did reach the conclusion that we didn’t support it, but it’s not with any sense of opposition to it. … We did not do it as a clear-cut issue, I would say.”  He “recognized the substantial amount of work done,” and “reviewed the largest volume of materials submitted to an advisory committee in my recollection.”  The Advisory Committee, Herr said, has “reached the conclusion that the Court should not adopt this rule at this time.”

If the Court is to adopt a rule, Herr said, “the committee would not recommend adoption of this rule,” and explained that proposed rule did not address the committee’s fundamental concerns about the rule, most importantly that the rule is a “substantive rule,” that “goes to the very issue of telling the district judge what she or he is supposed to do with the judgment when it is presented, what answer is supposed to come out of the [court’s] process.”

Herr was followed by Jon Dukstad, president of the Minnesota State Bar Association, which filed a majority report favoring adoption of the proposed rule and a minority report advocating further study.

Testimony was also given by:

· Bill Lawrence, owner and publisher of this paper, opposing the rule

· Randy Thompson, attorney opposing the rule

· Laura Guthrie of the White Earth Citizens for Lawful Government, in opposition to the rule

· Earl Mauss, Cass County Attorney, speaking on behalf of the Minnesota County Attorneys Association, in opposition to the rule

· Kevin Washburn, Associate Professor at the University of Minnesota Law School, speaking on behalf of several Indian Law professors (at least one of whom, Mary Brooks-Hunter is a tribal court judge in Wisconsin), in support of the rule

· Sheldon Wolfchild, who has made a video bringing to light the injustices done to disenfranchised Dakota elders, and who spoke in opposition to the rule and augmented his testimony with charts showing, he said, problems with Dakota enrollment and the interlocking system of tribal attorneys and tribal court judges in the Dakota communities

· Jackie CrowShoe, Child Welfare Officer for the Family and Children Services run by the Shakopee community council, who spoke in support of the rule (and whose appearance was requested through the Tribal Court/State Court forum

· This writer, who spoke in opposition to the rule, urged further study tribal codes and tribal courts, and asked the Minnesota Supreme Court to adopt an “interim rule” putting the burden of proof that tribal court orders and judgments conformed to the legal protections of the state and federal constitutions on the party bringing tribal court actions to state court for the state’s acceptance

· Norman Deschampe, President of the Minnesota Chippewa Tribe, who said that the Minnesota Chippewa Tribe had passed resolutions supporting adoption of the proposed rule
· George Soule, managing partner of the law firm Bowman and Brooke, whose appearance was requested on Tribal Court/State Court forum letterhead, and who spoke briefly in support of the rule

The five minutes allotted for each of the people testifying after the presentations by the forum and Rules Committee was reduced to four minutes for the last three speakers.

Jeremy Lane, of Legal Aid in Minneapolis, was initially scheduled to speak, but reportedly chose not to do so.

Seven other people had requested to speak at the hearing, but were not heard because of time constraints, according to Supreme Court Administrator Fred Grittner.

Six of the people who the Supreme Court did not have time to hear had filed documents in opposition to the proposed Full Faith and Credit rule:

· Leonard Roy, enrolled Indian at White Earth

· Ken Person, president of Citizens for Lawful Government

· Clarence Roy, enrolled Indian at White Earth

· Marv Manypenny, enrolled Indian at White Earth

· Maxine Eidsvig, enrolled Indian at Lower Sioux

· Kevin Shephard, who described himself as “non-Indian” and who wrote that his concern about the proposed rule came from his observations of tribal courts and tribal government during the years he worked at two Indian casinos

Mark Gardner, of the Minnesota Bar Association.  The MBA filed papers with the Supreme Court stating that after discussing the issue [and presentations and lobbying by the Tribal Court/State Court forum], the majority of the MBA involved in considering the proposed rule favored integrating “salient terms into existing rules / statutes,” while the minority advocated “more active continued discussion” prior to adoption of any rule.

When Chief Justice Blatz convened the Supreme Court, she explained that the court had received “submissions from people who are not electing to testify for various reasons.”

called the Supreme Court to ask Justice Blatz about her apparent statement that the people who did not testify were unheard because they had ‘elected not to testify’ rather than being barred from testimony by time constraints, and asked whether the Chief Justice was aware that people who wanted to testify were not allowed to do so.  The questions were referred by Justice Blatz’s clerk to the Court’s public relations office.

Charles Tombarge, court spokesman, returned Press/ON’s call, and explained that he had discussed the issue with Justice Blatz.  According to Tombarge, “Justice Blatz says that her intent was to include only the people who did not elect to testify in person.  She says that it’s a common statement that she makes in such hearings, and her intent was that indeed the court received submissions from people who elected not to testify in person.”

“She was not referring to the people who were not allowed to testify.”

One of the people who was not allowed to testify responded to Justice Blatz’s explanation: “But I didn’t elect not to, I elected to and was not allowed to.”

Tombarge also emphasized that Justice Blatz, “did say that the court will keep the record open for another week, to give people more of an opportunity to send in their comments if they wish, and at the end of the hearing the chief justice did apologize that time constraints limited testimony.  The court did increase the hearing time by 50% prior to yesterday; most hearings are 60 minutes long, yesterday’s was 90.

“So, certainly the court is interested in all input,” Tombarge continued.  “The court itself is interested in hearing all perspectives, and if people are interested in submitting additional comments or perspectives, the court will accept those the extended period of one week as stated by the Chief [Justice] yesterday.”

Additional submissions to the Minnesota Supreme Court on the issue of Full Faith and Credit will presumably be accepted by the court as long as they are postmarked on or before November 6, 2002.  They should be addressed to: Frederick Grittner, Clerk of Appellate Courts, 305 Minnesota Judicial Center, 25 Constitution Avenue, St. Paul, 55155, and should be identified at the top of the first page: “State of Minnesota in Supreme Court, CX-89-1863, re Petition for Adoption of a Rule of Procedure for the Recognition of Tribal Court Orders and Judgments.

The written material filed with the Court prior to the hearing included the material submitted by the Tribal Court/State Court forum: a list of tribal courts in Minnesota and a table outlining the provisions which various other states have made for acceptance of tribal court orders and judgments, in addition to the forum’s petition and proposed rule.

With the exception of material relating to the Minnesota Chippewa Tribe filed by the Citizens for Lawful Government from White Earth, documents before the Minnesota Supreme Court do not include tribal constitutions, tribal codes and rules of court, tribal council resolutions, nor other material upon which tribal court decisions might be based.  It also does not include tribal court dockets, and with the exception of a tribal court order filed by Sheldon Wolfchild – in objection to the proposed rule – does not include any tribal court orders so that the Supreme Court might scrutinize the sort of document the forum is asking the Minnesota courts to rubber-stamp.  It is unlikely that the Supreme Court judges have made a comprehensive study of tribal codes obtained from other sources, since the only tribal code catalogued in the state law library system is that of Mille Lacs.

The Tribal Court/State Court forum includes a number of tribal court judges: Henry Buffalo, Paul Day, Anita Fineday, Wanda Lyons, John Jacobson, Lenor Scheffler, Tom Sjogren, Andrew Small, and Margaret Treuer.  The remaining members of the “tribal” side of the Tribal Court/State Court forum are attorneys for some of the biggest Indian law firms in Minnesota: Joseph Halloran of Jacobson, Buffalo, Schessler & Magnuson; Vanya Hogen of Faegre & Benson; and Jessica Ryan of BlueDog, Olson & Small.  It is not obvious from the documents the forum filed with the Supreme Court that tribal court judge Henry Buffalo is a partner in the law firm Jacobson, Buffalo, Schoessler & Magnuson; and Andrew Small is a partner in BlueDog, Olson & Small.

Press/ON asked Tombarge how long it would be before the Supreme Court made its decision on the proposed Full Faith and Credit rule.  He said that, “an average case – and obviously this is not necessarily compared to this – takes three to fives months to issue an opinion following oral arguments.  However, of course, this is a different issue entirely, so it could be shorter or it could be longer.”

Press/ON also asked if there was any avenue for challenging Supreme Court rules.  Tombarge explained that because the Court’s rule-making “is an administrative action / matter rather than a case matter, people can petition the Supreme Court directly for a change in any court rules, or they may also work through the appropriate rules committee to seek a rule change.”

If the Minnesota Supreme court refuses to reconsider its own rules, can someone then appeal to the Supreme Court, Press/ON asked.  “That I’m not clear on, it would depend on the issues involved.”