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Engendering Tribal Court/State Court Cooperation Minnesota tribal court
and state court judges have worked for nearly ten years to foster
professional relationships between the courts and develop means to
address disputes arising from their concurrent jurisdictions.
The Teague Protocol, adopted by courts in Wisconsin to address
similar issues, offers a model for tribal court/state court relations
in Minnesota. By Judge Robert A. Blaeser
with Andrea L. Martin All of the tribal courts exercise general civil jurisdiction
and some of the tribes or bands also exercise misdemeanor criminal
jurisdiction. On the surface, this may seem no different than the
state and federal systems which operate side by side. As interactions
between tribal members and nonmembers increase in our growing economy,
conflicts requiring judicial resolution also increase. Problems arise
in determining which system should most appropriately exercise jurisdiction
over such conflicts and how orders and judgments of each system should
be treated. This article will explore how Minnesota state courts and tribal
courts have sought to resolve jurisdictional disputes and will describe
an alternative approach inspired by the Wisconsin Supreme Court that
is known as the Teague Protocol. Both the cooperative nature and the
recent success of the Teague Protocol approach in Wisconsin encourage
hope that Minnesota state courts and tribal courts may find it instructive
and implement its features in resolving jurisdictional disputes. Tribal Court/State Court Forum Minnesota state courts and tribal courts first began to seriously
address the disputes arising from their concurrent jurisdictions through
creation of the Tribal Court/State Court Forum in 1997. The Forum
comprises a state court committee and a tribal court committee, and
includes tribal court representatives and members of various levels
of the Minnesota state judiciary. Although its membership has changed
over the years, the Forum has for most of the past decade gathered
quarterly to discuss common issues, foster professional relationships,
and work on issues that cross jurisdictional boundaries.2 The Tribal
Court/State Court Forum meets alternatively at a tribal location and
a state court location. For about six of the past ten years, the Forum focused its
research and attention on the issue of providing full faith and credit
to tribal court orders and judgments.3 After reviewing how 23 other
states had handled application of full faith and credit to tribal
court judgments and looking at the best practices, the Forum drafted
a proposed full faith and credit rule for Minnesota, which it presented
by petition filed with the Minnesota Supreme Court on April 11, 2002.
Prior to the public hearing on the proposed rule, the Minnesota
State Bar Association Board of Governors voted unanimously to endorse
it. The Conference of Chief
Judges (predecessor to the current Judicial Council), which considered
the petition on June 26, 2002, amended the proposed rule to include
a reference to due process but then gave it their unanimous endorsement.4
Ten of Minnesota’s 11 tribes agreed to provide full faith and credit
to state court orders if the rule was adopted. In fact, many Minnesota
tribal courts already had their own rules regarding the grant of full
faith and credit to orders and judgments of other tribal, state or
federal courts. The Supreme Court requested that the Supreme Court Advisory
Committee on General Rules of Practice consider the rule and make
a recommendation. The advisory committee recommended that the rule
not be implemented and, following a hearing in October, the Supreme
Court declined to adopt the proposed rule. Instead, the Supreme Court
adopted Rule 10 of the Minnesota General Rules of Practice for the
District Courts on December 11, 2003.5 Unlike the proposed rule, Rule 10 was not a full faith and
credit rule, but one based on comity.
There are two parts to Rule 10 as adopted. Rule 10.01 recognizes that state or federal
statutes mandate that some tribal court orders be recognized and enforced.6
All other tribal court orders, however, are subject to the doctrine
of comity pursuant to Rule 10.02.7 As the advisory committee comment
makes clear, under Rule 10.02(a) recognition of a tribal court order
is discretionary and highly fact-specific. The rule identifies a number of factors a Minnesota judge may
consider in determining what effect to give a tribal court order.
The factors include: 1) whether the party against whom the order of
judgment would operate has had notice and been given an opportunity
to be heard; 2) whether the order or judgment appears facially valid
and remains in effect; 3) whether the tribal court had both subject
matter and personal jurisdiction; 4) whether the issuing tribal court
was a court of record; 5) whether the order or judgment was obtained
by fraud, duress, or coercion; 6) whether the order or judgment was
obtained through a process consistent with traditional notions of
due process; 7) whether the order or judgment contravenes public policy
of this state; 8) whether the order or judgment is final under the
law and procedure of the rendering court, as opposed to another type
of protective, temporary, or emergency order; 9) whether the tribal
court reciprocally provides for recognition and enforcement of state
court orders; and 10) any other factors appropriate in the interest
of justice.8 The Teague Cases During roughly the same period of time that the Minnesota Tribal
Court/State Court Forum commenced operation and pursued a full-faith
and credit rule, the Wisconsin appellate courts addressed the concurrent
and conflicting jurisdiction of state and tribal courts in three separate
decisions in the matter of Teague
v. Bad River Band of Lake Superior Chippewa Indians.9 Like Minnesota’s
statute, Wisconsin’s statute regarding recognition of tribal orders
and judgments, Wisconsin Statute §806.245, is based on comity, rather
than full faith and credit.10 Jerry Teague, although not a member of the Bad River Band,
was employed by Band’s Bad River Casino as its general manager. Teague
entered two employment contracts with the Band, one in November 1993
and another in March 1995. Following his termination in July 1995,
he filed an action in Ashland County Circuit Court of Wisconsin, seeking
to compel arbitration under the contracts. In response, the Band moved
to dismiss on sovereign immunity grounds, which the circuit court
denied.11 Later, in December 1996, the Band filed a separate action
in the Bad River Tribal Court seeking a declaratory judgment that
the contracts were invalid and, in January 1997, the Band asked the
Wisconsin circuit court to stay its proceedings according to the rule
requiring the prior exhaustion of tribal remedies announced in National Farmers Union Insurance Cos. v. Crow
Tribe of Indians.12 While Teague’s attorney accepted service of
the amended tribal court complaint, he did not file a responsive pleading
in tribal court. Similarly, Teague’s attorney also did not seek a
stay of the tribal court proceedings or appear before the tribal court
to challenge the jurisdiction. He did, however, participate in discovery,
which was conducted simultaneously in both cases. On May 29, 1997,
the Band moved for default judgment in tribal court, requesting that
the contracts be found invalid, which the tribal court granted. Following
the tribal court judgment, the Band sought full faith and credit in
Wisconsin circuit court.13 The circuit court denied the Band’s motion,
relying on the “prior action pending” rule of Syver v. Hahn.14 Because the case was first
filed in state court, the Wisconsin circuit court held that the tribal
court, as a court of concurrent jurisdiction, did not properly have
jurisdiction over the matter.15 In Teague I, the
Wisconsin Court of Appeals reversed the circuit court, holding that
the “prior action pending” rule of Syver
did not render the tribal court judgment invalid.16 On review, the
Wisconsin Supreme Court in Teague
II agreed that the Syver rule did not apply but reversed the
Court of Appeals decision and ordered the circuit court to hold a
jurisdictional allocation conference with the tribal court judge.17
The Wisconsin Supreme Court envisioned that the two judges would step
back in time to the point when they had first learned of the parallel
actions and would then discuss the applicable comity concerns to decide
which court should have exercised its jurisdiction.18 The joint meeting,
dubbed a “jurisdictional allocation conference” and since then known
as a “Teague Conference,” is now used in Wisconsin to assign jurisdiction
between state and tribal courts when the parties are identical and
the courts have concurrent jurisdiction.19 Wisconsin state and tribal courts received considerable leadership
from Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme
Court in her Teague III concurring
opinion.20 Chief Justice Abrahamson
stated:
Chief Justice Abrahamson continued:
The Teague Protocol The principles first developed in the Teague cases subsequently gained traction as the backbone of an agreement,
the Teague Protocol, addressing cases involving shared state and tribal
jurisdiction. At the “Walking on Common Ground” conference of tribal,
state and federal representatives in Green Bay, Wisconsin in July
2005, Wisconsin’s 9th Judicial District and five Wisconsin tribes
with property or reservations in the district signed the Teague Protocol.24
The Teague Protocol adopts the 13 factors that Chief Justice Abrahamson,
in her Teague III concurrence, indicated should
be considered in determining which court shall exercise jurisdiction
in a shared jurisdiction case.25 The
factors examine: 1) where the action was first filed; Tribal court and state court judges who attended the 2005 “Walking
on Common Ground: Pathways to Equal Justice” conference in Green Bay
repeatedly stressed the importance of the process developed by the
Teague decisions. The process of cooperation,
and not the formal protocol it ultimately produced, engendered a spirit
of cooperation between tribal courts and state courts in Wisconsin
that has endured. Since the adoption of the protocol, tribal and state
courts have been able to resolve every jurisdictional dispute themselves,
without need for a third judge to break a deadlock as provided for
in the protocol. The development of the Teague Protocol has brought
a clearer understanding and mutual respect to both state and tribal
courts and better cooperation and service to the clients of both courts. Model for Minnesota Currently, Minnesota is in a position similar to Wisconsin
before the adoption of the Teague Protocol. Minnesota has Rule 10
based on comity, leaving the recognition of tribal court orders and
judgments to the discretion of state court judges. Minnesota has an
increasing need for tribal/state cooperation as tribal courts increase
their jurisdiction and handle growing caseloads. Individuals and businesses
served by both courts move freely and frequently from reservations
to the city and back again. Because Wisconsin Statute §806.245 was
not a true full faith and credit statute, much like Rule 10 of the
Minnesota Rules of General Practice for the District Courts, Wisconsin
needed to create the Teague Protocol to assist state and tribal judges
in their highly discretionary decisions. Now, it is time for Minnesota
to adopt the Teague Protocol for its tribal and state courts as well.
Notes 2 In 1999,
the goals of the state court committee were described as follows:
(1) To learn how tribal courts operate and generate their orders.
(2) To meet and build relationships with tribal court judges to contribute
to a more effective, consistent and efficient judiciary in the state
of Minnesota. (3) To educate ourselves about the Indian Child Welfare
Act and other federal statutes that mandate the state courts to recognize
tribal court orders. (4) To jointly educate the public about the issues
of full faith and credit, its impact on our communities and options
to address the issue. 3Amended Petition
at C-1 to C-5 (App. C). Appendix C of the Amended Petition is a survey
of the application of full faith and credit to tribal court judgments
across 24 states, including Minnesota and Wisconsin. The survey details
whether each state recognizes full faith and credit based on court
rules, legislation, and/or case law. 4 Amended
Petition at A-1 to A-3 (App. A). Appendix A reproduces the proposed
rule as amended by the Conference of Chief Judges. 5 See Minn. R. Gen. Prac. 10 (2004). 6 Minn. R.
Gen. Prac. 10.01 (2004). Among the statutes that mandate recognition
and enforcement of tribal court judgments are the federal Violence
Against Women Act of 2000, 18 U.S.C §2265 (2006); Indian Child Welfare
Act, 25 U.S.C. §1911(d) (2000); Full Faith and Credit for Child Support
Orders Act, 28 U.S.C. §1738B(a) (2005); and The Uniform Child Custody
Jurisdiction and Enforcement Act, Minn. Stat. §§518D.101–317 (2006). 7 Minn. R.
Gen. Prac. 10.02 cmt. (2004). 8 Minn. R.
Gen. Prac. 10.02 (2004). 9 Teague v. Bad River Band of the Lake Superior
Tribe of Chippewa Indians, 599 N.W.2d 911 (Wis. App. 1999) [hereinafter
Teague I], rev’d, 612 N.W.2d 709 (Wis. 2000) [hereinafter
Teague II], appeal after remand, 665 N.W.2d 899 (Wis.
2003) [hereinafter Teague III]. 10 Teague II, 612 N.W.2d at 718. 11 Teague I, 599 N.W.2d at 913. 12 471 U.S.
845, 856–57 (1985). 13 Teague II, 612 N.W.2d at 713. For a detailed
discussion of the Teague
case and opinions, see Beth
Ermatinger Hanan & William H. Levit Jr., “Surveying the Boundaries:
State and Tribal Court Jurisdiction,” Wisconsin
Lawyer, June 2006. 14 Teague II, 612 N.W.2d at 713, (citing Syver v. Hahn, 94 N.W.2d 161 (Wis. 1959)). 15 Id. 16 Teague I, 599 N.W.2d 911, 916–17 (Wis.
App. 1999) ], rev’d on other
grounds, 612 N.W.2d 709 (Wis. 2000). 17 Teague II, 612 N.W.2d at 719–21. 18 See Id. 19 See Ermatinger Hanan & Levit, supra note 13, at 58–60. 20 See Teague III, 665 N.W.2d 899, 914–20
(Wis. 2003) (Abrahamson, C.J., concurring). 21 Id. at 916–17. 22 Id. at 917 (internal quotations and citations
omitted). 23 Id. at 917–18. 24 Tony Anderson,
“State, Tribal Courts Sign Jurisdictional Agreement,” Wis. L. J., Aug. 3, 2005, online at http://www.wislawjournal.com/archive/2005/0803/tribal.html.
Signatory tribes to the agreement included the Bad River Band of the
Lake Superior Chippewa Indians, the Forest County Potawatomi Community,
Lac du Flambeau Band of Lake Superior Chippewa Indians, Sokaogon Chippewa
Community (Mole Lake), and the Stockbridge-Munsee Band of the Mohicans.
25 See Tribal/State Protocol for the Judicial
Allocation of Jurisdiction Between the Bad River Band of Lake Superior
Chippewa Indians, Forest County Potawatomi Community, Ho Chunk Nation,
Lac du Flambeau Band of Lake Superior Indians, Sokaogon Chippewa Community
(Mole Lake), Stockbridge-Munsee Band of the Mohicans, and the 9th
Judicial District of Wisconsin (on file with author) [hereinafter
“Tribal/State Protocol”]. 26 Anderson,
supra note 24; Tribal/State
Protocol, supra note 25. In 2001, The 10th Judicial District of Wisconsin
and four Chippewa tribes of Northern Wisconsin entered an agreement
which considered similar factors. Teague Protocol: Tribal/State Protocol
for the Allocation of Jurisdiction Between the Four Chippewa Tribes
of Northern Wisconsin and the 10th Judicial District of Wisconsin
(Dec. 7, 2001), online at http://www.walkingoncommonground.org/web-data/Components/resources/Teague%20Protocol.pdf. ROBERT A. BLAESER has served
as judge for the Hennepin County District Court since 1995. An Anishinabe from White Earth, Judge Blaeser
has served as an associate judge for the Minnesota Chippewa Tribal
Court of Appeals and has served a number of other organizations committed
to eliminating racial bias in the justice system. ANDREA L. MARTIN currently works as a law clerk to Judge Blaeser. She graduated from the University of Minnesota Law School in May 2005. |
