2011 WI 53
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 review of
JUL 1, 2011
A. John Voelker
Acting Clerk of Supreme Court
On Monday, October 18, 2010, the court conducted a public hearing to review the operation of 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), as amended by S. Ct. Order 07-11A, 2009 WI 63 (issued Jul. 1, 2009, eff. Jul. 1, 2009) (Roggensack, J., dissenting). A number of individuals submitted written statements and provided testimony at the public hearing. At the ensuing open administrative conference the majority of the court concurred that the rule was operating as expected and that no action was required. The majority of the court voted to conduct another review of the rule in five years. Justice Patience Drake Roggensack stated her continuing concerns about the constitutionality of the rule as set forth in her dissent to this order. Therefore,
IT IS ORDERED that the circuit courts, tribal courts, litigants, and attorneys affected by this rule shall advise the court, in writing, regarding their experience of this rule on or before January 1, 2016.
IT IS FURTHER ORDERED that notice of this order on the review of the operation of Wis. Stat. § 801.54 governing the discretionary transfer of cases to tribal court 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.
Dated at Madison, Wisconsin, this 1st day of July, 2011.
BY THE COURT:
A. John Voelker
Acting Clerk of Supreme Court
¶1 PATIENCE DRAKE ROGGENSACK, J. (dissenting). A
majority of this court chooses to close the courts of
¶2 I have great respect for Native American Tribes and the very valuable contributions that tribal courts make to the administration of justice. However, that respect cannot overcome my constitutional obligations to citizens or expand the authority granted by Wis. Stat. § 751.12. Accordingly, I respectfully dissent.
¶3 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 to transfer of tribal members and
nonmembers. S. Ct. Order 07-11, 307 Wis. 2d xvii, xxi (eff.
July 31, 2008). I dissented from
that order. Id. at xxiii. I did so because: (1) tribal court concurrent subject matter
jurisdiction rarely exists when nonmembers are parties; (2) § 801.54 gives
no guidance on the standards to be applied in evaluating whether tribal courts
have concurrent subject matter jurisdiction; and (3) § 801.54 contravenes
Wis. Stat. § 751.12(1) by altering substantive rights of the parties to
July 1, 2009, a majority of this court extended tribal court jurisdiction
over tribal members and nonmembers further 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
¶5 Today a majority of this court affirms the expanded potential for infringement of the constitutional rights of tribal members and nonmembers by continuing the nonconsensual transfers into tribal courts for those who have chosen the circuit courts of Wisconsin. S. Ct. Order 07-11B (eff. July 1, 2011). Again, I dissent.
¶6 Who looks out for the unrepresented litigant whose constitutional rights are not represented in tribal court? Who looks out for the unrepresented litigant when the tribal court that will judge a nonmember's case combines law and tribal religion and it is not the nonmember's religion? Apparently no Wisconsin court, including this one.
order is an affirmation of the deprivation of the rights of litigants in cases
involving child custody, child placement and child support, as these litigants
are transferred into tribal courts without their consent and without a hearing
in circuit court prior to the transfer.
This court is fond of saying that no right is more fundamental than the
rights of a parent to the care and custody of his or her child. Dane Cnty. Dep't of Human Servs. v. Ponn
P., 2005 WI 32, ¶22 n.5, 279
A. Constitutional Concerns
¶8 Child custody and child placement decisions involve the most fundamental of constitutional rights: the right to the care and custody of one's children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); State v. Shirley E., 2006 WI 129, ¶¶23-24, 298 Wis. 2d 1, 724 N.W.2d 623.
fundamental rights of parents are protected by the Due Process Clause of the
Fourteenth Amendment, Meyer v.
the United States Supreme Court repeatedly 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
¶11 In considering the nonconsensual transfers of child custody and child 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; Wis. Const. art. I, § 18. Separation of church and state is one of the basic tenets of our democracy. However, tribal courts do not separate church and state; instead, tribal courts impose their religious values as custom and tradition that informs the tribal courts' view of the law.
¶12 Wisconsin courts have no power to review decisions on child
custody, child support or child placement made after transfer to tribal court
because those decisions will be made by an independent sovereign not
¶13 This lack of direct review of tribal court decisions is a
significant deprivation of guaranteed procedural rights. As Justice Kennedy recognized, "[t]he
political freedom guaranteed to citizens by the federal structure is a liberty
both distinct from and every bit as important as those freedoms guaranteed by
the Bill of Rights." United
States v. Lara, 541
¶14 Notice of transfer to a tribal court to unrepresented parents presumes both that the parents know how their interests will be addressed in tribal court and that they will ask for a hearing if they want one. Neither presumption has merit.
¶15 First, how will the unrepresented parent know what procedures and substantive rights will be accorded in tribal court? I do not have the answers to those questions, nor does a majority of this court, although I repeatedly requested that the court get this information before Wis. Stat. § 801.54 was enacted on July 1, 2008.
¶16 Second, if litigants do not know how matters proceed in tribal court, how can they make an informed decision about whether to request a hearing before the transfer and how can they know what concerns to bring to the circuit court if they do request a hearing?
process the majority has established runs roughshod over the constitutional
rights of parents. Stanley, 405
¶18 If that were the reason for Native American Tribes' request for this legislation, it was not necessary to that purpose to connect child custody and child placement decisions to the collection of child support. Furthermore, making that connection impacts the most fundamental of constitutional rights, the right to the care and custody of one's child.
B. Concurrent Jurisdiction
¶19 Tribal court concurrent subject matter jurisdiction is almost non-existent when a nonmember is a party to the lawsuit. The United States Supreme Court carefully explained that in its 2008 decision in Plains Commerce Bank. Plains Commerce Bank, 128 S. Ct. at 2722. A majority of this court ignores Plains Commerce Bank because it is contrary to the wishes of Native American Tribes.
¶20 Furthermore, it is beyond dispute that 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 U.S. 845, 851-52 (1985). Stated otherwise, "whether a tribal court has adjudicative authority over nonmembers is a federal question"; it is not decided under state law or tribal law. Plains Commerce Bank, 128 S. Ct. at 2716 (citing Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987)).
¶21 The United States Supreme Court has explained that tribal court concurrent subject matter jurisdiction is extremely limited when nonmembers are among the parties to an action. Montana v. United States, 450 U.S. 544, 565-66 (1981). The United States Supreme Court recently has affirmed that tribal court jurisdiction over nonmembers for conduct that occurs off tribal land is almost nonexistent, having been upheld on only one occasion. Plains Commerce Bank, 128 S. Ct. at 2722. The Court has also said, "[T]ribes do not, as a general matter, possess authority over non-Indians who come within their borders: '[T]he inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.'" Id. at 2718-19 (quoting Montana, 450 U.S. at 565).
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." Id. at 2719. In so incorporating, the tribes generally
lost the right to govern persons coming within tribal territory except for
any attempt to exert jurisdiction over nonmembers, "[t]he burden rests on
the tribe to establish one of the exceptions to
Stat. § 801.54 is in conflict with that requirement of federal law because
under § 801.54(2), a circuit court can transfer a case to tribal court on
its own motion. Therefore, a tribe would
not be the moving party who carries the burden to prove that there is concurrent
subject matter jurisdiction, as is required by the United States Supreme Court
in Plains Commerce Bank. The
circuit courts of
the contention that a court lacks subject matter jurisdiction may be raised at
any time, even after judgment. See
Arbaugh v. Y&H Corp., 546
¶29 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 Wisconsin court system. See
¶31 In conclusion, a majority of this court chooses to close the courts
¶32 I have great respect for Native American Tribes and the very valuable contributions that tribal courts make to the administration of justice. However, that respect cannot overcome my constitutional obligations to citizens or expand the authority granted by Wis. Stat. § 751.12. Accordingly, I respectfully dissent.
¶33 I am authorized to state that Justice Annette Kingsland Ziegler and Justice Michael J. Gableman join in this dissent.
 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 discernible effect on the tribe or its members": Williams v. Lee, 358 U.S. 217 (1959) (concluding the tribe had jurisdiction over a contract dispute between a non-Indian and an Indian on the reservation) and Washington v. Confederated Tribes of the 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 fee land. Id. at 2722.
 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.