2008 WI 114
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 31, 2008
David R. Schanker
Clerk of Supreme Court
On July 24, 2007, A. John Voelker, Director of State Courts, on behalf of the State-Tribal Justice Forum, petitioned the court to create a rule governing the discretionary transfer of cases to tribal court, pursuant to the court's rulemaking authority under Wis. Stat. § 751.12. On October 1, 2007, the court issued an order scheduling the petition for a public hearing on January 8, 2008.
On October 31, 2007, the Clerk of the Supreme Court issued a letter to 34 agencies and organizations potentially having an interest in the petition to solicit comment and offer the opportunity to appear in person at the public hearing. The court received comments from several recipients of this letter and others, all writing in favor of the proposed rule: (1) Honorable James R. Habeck, Circuit Court for Menominee and Shawano counties (November 5, 2007); (2) Jerry P. Lang, District Court Administrator, Fourth Judicial District (December 6, 2007); (3) Honorable Leland Wigg-Ninham, President, Wisconsin Tribal Judges Association (December 7, 2007); (4) Attorney Paul Stenzel (December 7, 2007); (5) James Botsford, Indian Law Office Director, Wisconsin Judicare, Inc. (December 10, 2007); (6) Honorable Eugene L. White-Fish, Chief Judge, Forest County Potawatomi Tribal Court (December 10, 2007); (7) Winnifred L. Thomas, Chief Judicial Officer, Oneida Tribal Judicial System (December 11, 2007); (8) Honorable Gerald Ptacek, Chief Judge, Circuit Court of Racine County, on behalf of the Committee of Chief Judges (December 17, 2007); (9) Thomas J. Basting, Sr., President, State Bar of Wisconsin (January 3, 2008); and (10) John S. Swimmer, Chairman, Indian Law Section, State Bar of Wisconsin (January 3, 2008). No comment was received opposing the petition.
At the hearing at 9:30 a.m. on January 8, 2008, the
petition was presented to the court by Honorable James Mohr,
Following the hearing, the court held an open
administrative conference to discuss the petition. After discussion, the court voted to request
further comment on three issues raised during the court's discussion of the
petition: First, under what
circumstances is jurisdiction concurrent between tribal and state courts or
exclusive in tribal or state court?
Second, is there a right under the
The court received three responses to its request. On February 15, 2008, the State-Tribal
Justice Forum, writing to help the court "move forward with this historic
rule," provided a seven-page single-spaced discussion of the current legal
status, case law, and history of the jurisdictional and constitutional issues
raised by the court, with two substantive attachments. The first attachment was a tribal court
directory—a court-by-court index of Wisconsin's tribal courts, including the
names of the judges, prosecutors, and tribal attorneys, the court's source of
power, the areas of subject matter and personal jurisdiction, and tribal
membership criteria. The second
attachment was a United States Department of Justice memorandum regarding
Public Law 83-280, which conferred jurisdiction on certain states, including
In response to these comments, the Clerk prepared a revised draft of the proposed rule and, on March 5, 2008, provided it to the three commenting parties. On March 11, 2008, the State-Tribal Justice Forum responded with further suggestions and comments. On March 18, 2008, the Department of Justice provided further comments. On April 2, 2008, Representative Terry Musser, Chair of the Joint Legislative Council's Special Committee on State-Tribal Relations, submitted an 11-page single-spaced memorandum from the Wisconsin Legislative Council containing technical comments about the original and revised drafts of the proposed rule. Representative Musser indicated that the Special Committee has not taken a position on the petition.
On April 15, 2008, the court discussed the proposed rule and the commentary at its open administrative conference. The court voted on specific changes to the proposed rule and examined the possibility of adapting an existing statute, Wis. Stat. § 801.63, to accommodate the transfer of cases from state court to tribal court as an alternative to the creation of a new rule. The court charged the Clerk with the task of drafting alternative versions of the rule: (1) a redraft of the proposed rule Wis. Stat. § 801.54 incorporating changes discussed and voted upon by the court, and (2) a draft of Wis. Stat. § 801.63 revised to include transfers to tribal court. At the court's request, on May 29, 2008, the Clerk submitted these drafts to Justice Crooks, who, upon reviewing these materials, determined that a revision of Wis. Stat. § 801.63 was not a feasible mechanism for transfer of cases to tribal court.
On June 24, 2008, the court received a comment on the
proposed rule from Attorney Meg Vergeront on behalf of the
IT IS ORDERED that effective January 1, 2009:
Section 1. 801.54 of the statutes is created to read:
801.54 Discretionary transfer of civil actions to tribal court. (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 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.
(2) Discretionary transfer. When a civil action is brought in the circuit court of any county of this state, and when, under the laws of the United States, a tribal court has concurrent jurisdiction of the matter in controversy, the circuit court may, on its own motion or the motion of any party and after notice and hearing on the record on the issue of the transfer, cause such action to be transferred to the tribal court. The circuit court must first make a threshold determination that concurrent jurisdiction exists. If concurrent jurisdiction is found to exist, unless all parties stipulate to the transfer, in the exercise of its discretion the circuit court shall consider all relevant factors, including but not limited to:
(a) Whether issues in the action require interpretation of the tribe's laws, including the tribe's constitution, statutes, bylaws, ordinances, resolutions, or case law.
(b) Whether the action involves traditional or cultural matters of the tribe.
(c) Whether the action is one in which the tribe is a party, or whether tribal sovereignty, jurisdiction, or territory is an issue in the action.
(d) The tribal membership status of the parties.
(e) Where the claim arises.
(f) Whether the parties have by contract chosen a forum or the law to be applied in the event of a dispute.
(g) The timing of any motion to transfer, taking into account the parties' and court's expenditure of time and resources, and compliance with any applicable provisions of the circuit court's scheduling orders.
(h) The court in which the action can be decided most expeditiously.
(i) The institutional and administrative interests of each court.
(j) The relative burdens on the parties, including cost, access to and admissibility of evidence, and matters of process, practice, and procedure, including where the action will be heard and decided most promptly.
(k) Any other factors having substantial bearing upon the selection of a convenient, reasonable and fair place of trial.
(3) Stay of proceeding in circuit court. When a circuit court transfers an action to tribal court under this rule, the circuit court shall enter an order to stay further proceedings on the action in circuit court. Jurisdiction of the circuit court continues over the parties to a proceeding in which a stay has been ordered under this section until a period of 5 years has elapsed since the last order affecting the stay was entered in the court. At any time during which jurisdiction of the court continues over the parties to the proceedings, the court may, on motion and notice to the parties, subsequently modify the stay order and take any further action in the proceeding as the interests of justice require. When jurisdiction of the court over the parties and the proceeding terminates by reason of the lapse of 5 years following the last court order in the action, the clerk of the court in which the stay was granted shall without notice enter an order dismissing the action.
(4) Appeals. The decision of a circuit court to transfer an action to tribal court may be appealed as a matter of right under s. 808.03(1).
(5) Effect of transfer. When a circuit court orders the transfer of an action to tribal court under this rule, the circuit court shall retain the circuit court filing fee and shall transmit to the tribal court a copy of all circuit court records in the action.
(6) Powers, rights and obligations unaffected. Nothing in this rule is intended to alter, diminish, or expand the jurisdiction of the circuit courts or any tribal court, the sovereignty of the state or any federally recognized American Indian tribe or band, or the rights or obligations of parties under state, tribal, or federal law.
Section 2. The following Comment to Wis. Stat. § 801.54 is not adopted, but will be published and may be consulted for guidance in interpreting and applying the statute:
The purpose of this rule is to
enable circuit courts to transfer civil actions to tribal courts in
IT IS FURTHER 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, 2011.
IT IS FURTHER ORDERED that notice of creation of Wis. Stat. § 801.54 be given by a single publication of a copy of this order and the dissent thereto 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
¶1 PATIENCE DRAKE ROGGENSACK, J. (dissenting). Four
Wisconsin Supreme Court justices, who constitute a majority of this court
today, legislate to create a rule by which circuit courts may transfer
jurisdiction of pending civil cases from Wisconsin circuit courts to any tribal
¶2 Tribal courts provide meaningful dispute resolution to many tribal members in courts that have well-grounded appreciations for the traditions so important to tribal justice. The Rule that the court implements today does not detract from their significant contributions.
¶3 However, today the court legislates through rule-making in
response to Rules Petition 07-11. In so
doing, four justices who constitute a majority of the court empower
A. Concurrent Jurisdiction
¶4 Rule 801.54, created by a majority of the court, requires that before a circuit court may transfer jurisdiction of a pending matter to a tribal court, the circuit court must determine that the tribal court has concurrent subject matter jurisdiction. Because Rule 801.54 is very broad, on its face it has the potential to be applied to non-tribal as well as tribal members for conduct that occurs off as well as on tribal land.
"Public Law 280,"
United States Supreme Court has explained that tribal court concurrent
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
the directive of the United States Supreme Court that the tribe has the burden
of establishing that it has concurrent jurisdiction with the circuit court, the
stated purpose of Rule 801.54 is "to enable circuit courts to transfer civil
actions to tribal courts in
Supreme Court also has explained that "a tribe's adjudicative jurisdiction
does not exceed its legislative jurisdiction."
is not a simple matter for a circuit court to determine whether a case fits
within one of the two very narrow
¶14 At the open administrative conference on June 25, 2008, the majority appeared to take comfort in Rule 801.54(4), which provides that decisions transferring cases to tribal court are appealable as of right. However, an appeal is small comfort to litigants who are already overburdened with legal fees; and it provides no guidance to the circuit courts on the critical issue of whether there is concurrent tribal court subject matter jurisdiction.
¶15 This court's power to legislate, which we label 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 Rule 801.54, all litigants who satisfied the statutory
provisions for jurisdiction in Wisconsin courts had a statutory right to avail
themselves of the
Law Dictionary's definition of "substantive law" supports my
conclusion that the right to litigate in the courts of
The part of the law that creates, defines, and regulates the rights, duties, and powers of parties. . . . "So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other."
Black's Law Dictionary
1470 (8th ed. 2004) (quoting John Salmond, Jurisprudence 476 (Glanville
L. Williams ed., 10th ed. 1947)). The
power to litigate and the duty to defend actions brought in
¶18 Furthermore, Rule
801.54 is contrary to our obligation to uphold the constitutions of the
C. Lack of Information and Failure to Heed Concerns
¶19 I also am deeply troubled by the majority's willingness to create Rule 801.54 when this court has engaged in no fact-finding to determine the procedures available in the tribal courts of Wisconsin and has ignored the concerns expressed by others over the Rule's adoption. Further troubling is that, in adopting Rule 801.54, the court has not adhered to the usual procedure for drafting and adopting court rules.
¶20 First, a majority of the court rushes ahead to create Rule 801.54 even though the court has not been provided with descriptions from the Wisconsin tribes about the procedures employed in the various tribal courts in Wisconsin. Although the majority is correct in its assertion that it received several responses to Petition 07-11, not one of those responses provided information about the procedures by which each of the various tribal courts operate. For example, the court has not been presented information that provides when, or if, a litigant may have a jury trial. The court has not been presented information that shows whether each tribe has a written code of laws or a constitution and if those exist, what provisions they contain. The court has not been presented with information about what types of evidence may be introduced during a trial. The court has not been presented with the educational or experiential backgrounds of the persons who serve as tribal court judges. The list of what the court has not investigated goes on and on.
¶21 At the open conferences on Petition 07-11, I repeatedly requested
that the court require that the tribes provide specific information about how
the court of each tribe operates, before the court voted on Petition
07-11. However, a majority of the court
determined that its lack of information about tribal courts' procedures should
not prevent it from adopting Rule 801.54.
I do not understand the majority's willingness to create a law that
¶22 Second, the majority has ignored the responses of those who were opposed to the creation of Rule 801.54 based on the Rule's failure to guarantee individual rights. For example, Attorney Meg Vergeront, who wrote on behalf of the Village of Hobart, expressed concern that while Article I, Section 5 of the Wisconsin Constitution preserves the right to trial by jury in all cases at law if the right to a jury trial existed at the time the Constitution was adopted, there is no provision in Rule 801.54 to guarantee this right in tribal courts.
¶23 In addition, the Wisconsin Department of Justice's comments on Petition 07-11 have been largely ignored. On February 22, 2008, the Department of Justice addressed its concerns about, "Under what circumstances is jurisdiction concurrent between tribal and state courts or exclusive in tribal or state court?" Rule 801.54 does not attempt to address this important and complicated question. See my discussion above in ¶¶4-14.
¶24 The Wisconsin Department of Justice also addressed whether there
was "a right under the
¶25 Finally, the procedures employed in adopting Rule 801.54 deviated from our usual procedures for rule adoption. Petition 07-11 was drafted by the Director of State Courts, not the State-Tribal Justice Forum, and Rule 801.54 was created by the court's own redrafting of the rule proposed in Petition 07-11 through the efforts of the Clerk of the Supreme Court. Neither of these actions comports with our usual procedure for rule adoption. And lastly, Rule 801.54 was created even though there was no showing that there was any need to send those who chose to litigate in circuit court to tribal court.
¶26 I write in dissent because: (1) Rule 801.54 is inadequate and misleading in regard to addressing tribal court concurrent subject matter jurisdiction, which jurisdiction is extremely limited in scope when nonmembers are parties to the action; (2) Rule 801.54 impermissibly alters the substantive rights of tribal members, as well as nonmembers, contrary to the provisions of Wis. Stat. § 751.12(1), which limits the court's rule-making power; (3) Rule 801.54 undermines federal and state constitutional and statutory rights of litigants; and (4) a majority of the court has pushed this rule-change through before the end of the 2007-08 term of the court, even though the court has been presented with no information about the substantive rights and civil procedures that are available in tribal courts.
¶27 I am authorized to state that Justices DAVID T. PROSSER and ANNETTE KINGSLAND ZIEGLER join in this dissent.
 In keeping with the court's usual practice, A. John Voelker, Director of State Courts, frequently submits petitions for rules on behalf of court entities. See, e.g., petition nos. 06-01 (In re amendment of SCR 72.01 Regarding Record Retention), 06-07 (In the matter of the Creation of a Court Rule Authorizing Use of Electronic Signatures by Court Officials), 06-08 (In the matter of the Creation of a Court Rule Governing Electronic Filing in the Circuit Courts), 07-05 (In the matter of the Amendment of Supreme Court Rule 32.09 regarding continuing education for Wisconsin Judiciary), 07-12 (In the matter of the petition to create a rule governing the use of videoconferencing in the courts), 07-14 (In the matter of the Amendment to SCR 70.14(2) formalizing vice-chairperson position on the Planning and Policy Advisory Committee (PPAC)), and 08-01 (In the matter of the Amendment of Rules of Pleading, Practice and Procedure: Wis. Stat. Rule Ch. 756, Juries). Furthermore, as the court considers a petition, it is the court's practice to assign a court commissioner or the clerk or chief deputy clerk of the supreme court to staff the petition, communicate with interested persons, and redraft the proposed rule in accordance with the court's instructions.
 The State-Tribal Justice Forum is a joint committee of state and tribal court representatives established by Chief Justice Abrahamson in 2005 to promote and sustain communication, education, and cooperation among tribal and state court systems. The committee consists of five circuit court judges, five tribal judges, one tribal attorney, one legislative liaison, one district court administrator, and the director of state courts.
 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.
 Plains Commerce Bank
v. Long Family Land & Cattle Co., 554
 The majority refers to
a document provided by the tribal courts as listing the areas over which the
tribes assert they have subject matter jurisdiction. See majority op., p. 4. However, this listing has no affect on
whether a tribe has concurrent subject matter jurisdiction with a circuit
court. This is so because, while the
tribes may identify the matters over which they assert that they exercise
subject matter jurisdiction, whether they actually have concurrent subject
matter jurisdiction is a question of federal law, not tribal law.
 The rule states in relevant part: "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 . . . ." Rule 801.54(1).
 Public Law 280, a
portion of which is set out in 28 U.S.C. § 1360, provides in relevant part: "[Wisconsin] shall have jurisdiction
over civil causes of action between Indians or to which Indians are parties
which arise in the areas of Indian country [within Wisconsin] to the same
extent that [Wisconsin] has jurisdiction over other civil causes of action, and
those civil laws of [Wisconsin] that are of general application to private
persons or private property shall have the same force and effect within such
Indian country as they have elsewhere within [Wisconsin]." 18 U.S.C. 1151 defines "Indian
Country." (Public Law 280 does not
include the Menominee Tribe due to "retrocession of jurisdiction by the
 The court in Plains Commerce Bank, 128 S. Ct. at 2721, 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"); 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"; taxation of nonmember activities on non-Indian fee
 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.
 The right to appeal a
circuit court's decision that concurrent jurisdiction exists may appear to
present the review of a discretionary decision.
However, a court erroneously exercises its discretion when it
incorrectly applies the law.
 Our lack of information in this regard is further troubling and
problematic, because a litigant may be compelled to appear before a jury whose
composition is less than that provided for under
 However, as I explained
in ¶18, the United
States Supreme Court has concluded that the United States Constitution is not
binding on tribal courts. Talton v.