2009 WI 63
Supreme Court of
This order is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
In the matter of the petition to create a rule governing the discretionary transfer of cases to tribal court.
JUL 1, 2009
David R. Schanker
Clerk of Supreme Court
On July 31, 2008, this court created Wis. Stat. § 801.54 governing the discretionary transfer of cases to tribal court. See S. Ct. Order 07-11, 2008 WI 114 (issued Jul. 31, 2008, eff. Jan. 1, 2009) (Roggensack, J., dissenting).
On February 9, 2009, the Wisconsin Department of
Children and Families ("the Department") submitted a letter to the
court asking the court to create a narrow exception to the rule to facilitate
transfer of post-judgment child support cases to tribes under certain
circumstances. The Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), as
amended by the Balanced Budget Act of 1997, authorized the direct funding of tribal
child support enforcement programs by the federal government. The Department of Health and Human Services ("DHSS")
providing the mechanism for tribes to submit child support enforcement plans
and, upon approval, to receive direct federal funding of tribally operated
programs. As part of this program, federal regulations governing state IV-D plans
were amended to require states to cooperate with tribal IV-D programs. In
Accordingly, the Department has been working on the transfer of approximately 4,000 post-judgment child support cases from state court to the Oneida Nation as part of this program. However, the Department has ascertained that complying with the affirmative notice requirements of Wis. Stat. § 801.54(2) will make these transfers cost-prohibitive to effectuate. The Department supports the adoption of a narrow exception that will facilitate these transfers while still affording the individual parties an opportunity to object to the transfer. The Department indicates that the Oneida Nation and the Brown County Circuit Court acknowledge the need for this request. The Department has also consulted with the Wisconsin Department of Justice regarding this proposal. The Department asks the court to expedite its consideration of this request because the Oneida Nation's participation in the federal program and its receipt of federal funds may be jeopardized as a result of the delay in transferring these cases. Expedited consideration by the court is permissible pursuant to Wis. S. Ct. IOP III-A.
The court discussed this matter at its open administrative conference on March 9, 2009. Justice Patience Drake Roggensack reiterated her objection to the court's adoption of the rule. A majority of the court voted to grant the request of the Department. Justice Roggensack sought additional feedback on the proposed amendment from the Wisconsin Department of Justice. The court also requested the Department prepare the forms that will be used to notify parties of a prospective case transfer. The Wisconsin Tribal Judge’s Association and the Wisconsin State-Tribal Justice Forum submitted written statements in support of the amendment. Mr. Rick Cornelius submitted a statement opposing the rule.
The court discussed this matter again at an open administrative conference on May 1, 2009. The court agreed to amend the proposal to reflect a suggestion from the Wisconsin Department of Justice requiring an explicit finding of concurrent jurisdiction as part of the amendment. The court discussed the proposed forms prepared by the Department and voted to advise the records management committee, acting on behalf of the Judicial Conference, to develop standard forms to effectuate this amendment that are substantially similar to the forms attached to this order as exhibits A and B. A majority of the court then confirmed its decision to grant the request of the Department. Justice Patience Drake Roggensack stated she dissented from the adoption of the amendment and made a statement on the record explaining the basis for her dissent. She was joined by Justice Ziegler and Justice Gableman.
Accordingly, effective the date of this order:
Section 1. 801.54 (1) of the statutes is amended to read:
801.54 (1) Scope. In a civil action where a circuit court and a court or judicial system of a federally recognized American Indian tribe or band in Wisconsin ("tribal court") have concurrent jurisdiction, this rule authorizes the circuit court, in its discretion, to transfer the action to the tribal court under sub. (2m) or when transfer is warranted under the factors set forth in sub. (2). This rule does not apply to any action in which controlling law grants exclusive jurisdiction to either the circuit court or the tribal court.
Section 2. 801.54 (2m) of the statutes is created to read:
801.54 (2m) Tribal Child Support Programs. The circuit court may, on its own motion or the motion of any party, after notice to the parties of their right to object, transfer a post-judgment child support, custody or placement provision of an action in which the state is a real party in interest pursuant to s. 767.205(2) to a tribal court located in Wisconsin that is receiving funding from the federal government to operate a child support program under Title IV-D of the federal Social Security Act (42 U.S.C. 654 et al.). The circuit court must first make a threshold determination that concurrent jurisdiction exists. If concurrent jurisdiction is found to exist, the transfer will occur unless a party objects in a timely manner. Upon the filing of a timely objection to the transfer the circuit court shall conduct a hearing on the record considering all the relevant factors set forth in sub. (2).
IT IS ORDERED that the court directs the records management committee, acting on behalf of the Judicial Conference, to develop standard forms to effectuate this amendment that are substantially similar to the forms attached to this order as Exhibits A and B.
IT IS FURTHER ORDERED that notice of this amendment of Wis. Stat. § 801.54 be given by a single publication of a copy of this order in the official state newspaper and in an official publication of the State Bar of Wisconsin.
BY THE COURT:
David R. Schanker
Clerk of Supreme Court
v. Case No. ____________
TO THE CIRCUIT COURT JUDGE OF
I request a hearing to contest the transfer of my case regarding the issues of legal custody, physical placement and child support to the [Name of Tribe] Tribe of Indians.
Name (please print)
----------FOR AGENCY USE ONLY----------
The above requested hearing is scheduled for :
CHILD SUPPORT AGENCY
123 ______ Lane TEL: (000) 000-0000
___ Floor FAX: (000) 000-0000
_______, WI TDD: (000) 000-0000
Party Name Date
Address Case No.:
The [Name of Tribe] has received federal approval to operate a tribal child support agency. The Tribe has enacted laws authorizing the establishment of paternity and enforcement of child support.
or the other parent in your case is a member of the [Name of Tribe] Tribe. Therefore, your child
support case may be transferred to the [Tribal] Child
is your formal notice of [Name of County]
you want to object to this transfer, you must
complete the enclosed Request for
Hearing. Then, within ten (10)
business days of the date of this letter, you must send the completed Request
for Hearing to the ______ County Child
you do not complete and return the Request
for Hearing form on a timely basis, we will ask
This agency is an equal opportunity employer and service provider. If you have a disability and need information in an alternative format, or if you need it translated to another language, please contact us at the phone number or address listed at the top of this letter.
Agency Attorney, Child Support Agency
¶1 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The majority of this court chooses to disregard the effect that its decision has on the fundamental constitutional rights of parents, gives no direction to circuit courts in regard to the standards under which concurrent subject matter jurisdiction could exist in tribal court and abrogates the rights of litigants who have chosen Wisconsin circuit courts as their forums. Once again, this court has exceeded the authority that the legislature granted in Wis. Stat. § 751.12. Accordingly, I respectfully dissent.
¶2 On July 1, 2008, a majority of this court legislated to create
Wis. Stat. § 801.54,
which permits the transfer of civil cases pending in Wisconsin circuit courts
to tribal courts, over the objections of litigants and when all of the
litigants are not tribal members. S. Ct.
Order 07-11, 2008 WI 114, 307
¶3 Today, a majority of this court expands the potential for infringement of the constitutional rights of non-tribal and tribal members by permitting the transfer of "post-judgment child support, custody or placement provision of an action in which the state is a real party in interest pursuant to s. 767.205(2) to a tribal court located in Wisconsin," without a hearing. S. Ct. Order 07-11A, supra at 4.
change is a further deprivation of the rights of litigants in cases involving
custody, placement and child support because Wis. Stat. § 801.54, as
originally enacted, required the circuit court to provide notice and to hold a
hearing in each case before a transfer could be made. § 801.54(2). During that hearing the circuit court was
required to first determine whether concurrent subject matter jurisdiction
existed in the tribal court, and then to examine 11 listed factors, as well as
any other factors that the court deemed relevant, in order to determine whether
to order the transfer to tribal court.
A. Constitutional Concerns
majority now eliminates the obligation to hold a hearing in each individual
custody, placement and child support matter.
However, custody and placement decisions involve the most fundamental of
constitutional rights: the right to the
care and custody of one's children.
fundamental rights of parents are protected by the Due Process Clause of the
Fourteenth Amendment, Meyer v.
the United States Supreme Court has explained, the United States Constitution
is not binding on tribal courts. Plains
Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709,
2724 (2008) (citing Talton v. Mayes, 163
¶8 In considering transfers of child custody and placement issues to
tribal courts, it is also important to note that both the United States
Constitution and the Wisconsin Constitution require the separation of church
and state. U.S. Const. amend. I;
¶10 I recognize that holding a hearing in each case is more expensive, uses more court time and is generally more difficult than giving a notice to unrepresented parents and presuming both that the parents know how their interests will be addressed in tribal court and that they will ask for a hearing if they object to the transfer. However, neither presumption has merit.
¶11 First, how are litigants to know what procedures and substantive rights will be accorded in tribal court? I do not have the answers to those questions, nor does the majority of this court, although I repeatedly requested that the majority get this information before Wis. Stat. § 801.54 was enacted on July 1, 2008. Second, if litigants do not know how matters proceed in tribal court, how can they make an informed decision about whether to object to the transfer and how can they know what concerns to bring to the circuit court if they do file an affirmative objection to the transfer?
process the majority has established runs roughshod over the constitutional
rights of parents. Stanley, 405
B. Concurrent Jurisdiction
¶13 I continue to have concerns that, as circuit courts attempt to
comply with Wis. Stat. § 801.54's
requirement to determine whether tribal court concurrent subject matter
jurisdiction exists, they will not recognize that tribal court concurrent
subject matter jurisdiction is almost nonexistent when a non-tribal member is a
party to the lawsuit. Plains Commerce
¶14 As an initial matter, tribal
court subject matter jurisdiction is established by federal laws and United
States Supreme Court precedent. Nat'l
Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471
United States Supreme Court has explained that tribal court concurrent subject
matter jurisdiction is extremely limited when non-tribal members are among the
parties to an action.
when nonmember conduct occurs on tribal land, the general rule is that tribes
lack subject matter jurisdiction over nonmembers.
Plains Commerce Bank, tribal members (the Longs) sued a nonmember
(Plains Commerce Bank) in tribal court, alleging that the bank discriminated
against them when it sold property.
Supreme Court agreed with the bank. The
Court began by explaining that the sovereign powers of tribes are limited by
virtue of the tribes' "incorporation into the American republic."
any attempt to exert jurisdiction over nonmembers, "[t]he burden rests on
the tribe to establish one of the exceptions to
is not a simple matter for a circuit court to determine whether a case fits
within one of the two very narrow
¶22 This court's power to legislate, which we speak of as "rule-making," is derived from Wis. Stat. § 751.12(1), which provides in relevant part:
The state supreme court shall, by rules promulgated by it from time to time, regulate pleading, practice, and procedure in judicial proceedings in all courts, for the purposes of simplifying the same and of promoting the speedy determination of litigation upon its merits. The rules shall not abridge, enlarge, or modify the substantive rights of any litigant.
to the creation of Wis. Stat. § 801.54, all litigants who satisfied the
statutory provisions for jurisdiction in Wisconsin courts had a statutory right
to avail themselves of the
¶24 The latest amendment to Wis. Stat. § 801.54 permits a court to eliminate the right to litigate in state courts without holding a hearing before transferring the matter to tribal courts. In so doing, the majority eliminates not only the substantive right to litigate in state courts, but it eliminates the right to a hearing unless a party affirmatively requests one. This new law abridges the rights of litigants contrary to the express directive of Wis. Stat. § 751.12(1).
¶25 In conclusion, the majority of this court chooses to disregard the effect that its decision has on the fundamental constitutional rights of parents, gives no direction to circuit courts in regard to the standards under which concurrent subject matter jurisdiction could exist in tribal court and abrogates the rights of litigants who have chosen Wisconsin circuit courts as their forums. Once again, the majority has exceeded the authority that the legislature granted in Wis. Stat. § 751.12. Accordingly, I respectfully dissent.
¶26 I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join in this dissent.
 The DHHS published its final rule on March 30, 2004. See 69 Fed. Reg. 16,638 (Mar. 30, 2005) codified at 45 C.F.R. Part 309.
 69 Fed. Reg. 16,638 (Mar. 30, 2005).
 The Forest
County Potawatomi Community, the Lac du Flambeau Band of Lake Superior Chippewa
Indians, and the Menominee tribe of
 Tribal Law and Order Act of 2008: Hearing Before the S. Comm. on Indian Affairs, 1-2 (July 24, 2008) (statement of Roman J. Duran, Vice President, National American Indian Court Judges Association).
 The court in Plains Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709, 2721 (2008), cited two limited types of exceptions that involved the regulation of nonmember activities on reservation land "that had a discernable effect on the tribe or its members": Williams v. Lee, 358 U.S. 217 (1959) (concluding the tribe had jurisdiction over a contract dispute about "the sale of merchandise by a non-Indian to an Indian on the reservation") and Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134 (1980) (upholding tribal determination of the taxing authority of the tribe for activities by non-Indians on reservation land). The Court cited other cases that also upheld tribal determinations involving taxes for activities within tribal land.
 In Plains Commerce
Bank, the Court pointed out that tribal courts lack jurisdiction over: a "tort suit involving an accident on
non-tribal land"; the regulation of "hunting and fishing on
non-Indian fee land"; and taxation of nonmember activities on non-Indian
 In Plains Commerce
Bank, the tribe lacked "the civil authority to regulate the Bank's
sale of its fee land," and therefore, the tribal court could not
adjudicate the circumstances under which the land sales were made.