Wisconsin Tribal Judges Association

Frequently Asked Questions

  1. How many tribal courts are there in Wisconsin?

    There are 11 federally recognized Indian tribes in Wisconsin:

    All tribes have justice systems. Ten tribes have justice systems called courts. The Oneida Tribe does not call its system a court but it functions as a court. The Ho-Chunk Nation, in addition to a Western-style court, also has a traditional court based on the clan system. Learn more about each tribe's courts by clicking the links above.

  2. Does Wisconsin law apply on the Reservations?

    Generally speaking, Wisconsin criminal law does apply on the reservations and civil law does not. Under federal law, 28 USC § 1360 and 18 USC § 1162, (also know as Public Law 280) the State of Wisconsin has criminal and some civil jurisdiction on ten out of eleven of its Indian reservations. (The Menominee Indian Tribe is not subject to Public Law 280. Neither state criminal nor civil law apply to Indians on the Menominee Reservation.) Under Public Law 280, the State of Wisconsin has criminal jurisdiction over Indians for crimes committed on a reservation. Indian tribes do not have criminal jurisdiction over non-Indians. Oliphant v. Suquamish Indian Tribe, 435 U.s 191 (1978).

    With respect to civil jurisdiction over Indians,the state's authority is limited. Under Supreme Court rulings, Public Law 280 only gives the stat courts concurrent civil adjudicatory jurisdiction. See Bryan v. Itasca County, 426 U.S. 373 (1976). The state does not possess civil regulatory jurisdiction on an Indian reservation. the dividing line between criminal and civil regulatory jurisdiction has been the subject of litigation in Wisconsin and in other states. See e.g. State v. LeMieux, 106 Wis. 2d 484 (Ct. App. 1982) (Transportation of uncased firearms is in civil regulatory category and therefore state does not have jurisdiction to enforce Wis. Stat. § 29.224 against tribal members on the Bad River Reservation.); In re Commitment of Burgess, 2003 WI 71 (Wis. Ch. 980 proceedings are criminal in nature and therefore state court has jurisdiction over reservation tribal members for Wis. Ch. 980 proceedings)

  3. Can litigants appeal a tribal court ruling?

    All tribal justice systems maintain some form of appeal from rulings of the trial court. The scope, nature and timing of appeals vary by jurisdiction.

    Under Federal Law, Litigants who wish to challenge the jurisdiction of a tribal court must exhaust their remedies in tribal court before filing such a challenge. See National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845 (1985) and Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987). Tribal court jurisdiction is a federal question and thus federal courts have ruled they have the authority to determine whether a tribal court has jurisdiction in a particular case.

  4. Since Tribal Courts are not bound by the U.S. and Wisconsin constitutions, how are litigants' rights protected in Tribal Courts?

    It is true that the Wisconsin and U.S. constitutions do not apply to Wisconsin Indian Tribes. However, that does not mean litigants are unprotected in tribal court. There are three important ways parties are protected.

    First, Congress has passed the Indian Civil Rights Act, 25 USC § 1302 (ICRA) which closely mirrors the U.S. Bill of Rights. Congress has imposed the basic protections of due process, freedom of speech, avoidance of self-incrimination, etc. on Indian tribes. (The ICRA does not impose separation of church and state. This exception is addressed below.)

    Second, many tribes themselves have adopted substantive laws, through their constitutions or statutes, which contain similar guarantees as those in the U.S. Bill of Rights.

    Third, although Indian tribes are separate sovereigns with separate cultures, they have more in common with Western notions of justice than might be apparent at first glance. Many tribes, for example, have very strong traditions of due process under which all participants to a dispute are given a chance to speak and share their thoughts and feelings.

  5. Do tribal courts treat non-members unfairly because tribal courts are not subject to the Establishment Clause?

    No. It is true tribal courts are not subject to the restrictions of the Establishment Clause. However, tribal courts do not treat litigants unfairly as a result. While many Indian tribes in Wisconsin have deep religious traditions, the tribal courts in Wisconsin are based on constitutions and ordinances. Those laws are applied in a similar fashion to Western courts.

    Wisconsin tribal judges are similar to state and federal judges in that while they may have strongly held beliefs based on their religion, they do not overtly impose these views on litigants when resolving disputes. Like state and federal judges, tribal judges follow the law.

  6. How can tribal courts hear cases involving non-indians when their jurisdiction over non-indians has been limited by federal law?

    Under U.S. v. Montana, 450 U.S. 544 (1981). Wisconsin tribal courts have jurisdiction over non-indians in two circumstances. First, a tribe may regulate through licensing, taxation or other means that activities of nonmembers who enter into contracts, leases or other arrangements. Second, a tribe may exercise civil authority over the conduct of non-indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.

    Whether one characterizes these categories as broad or narrow depends on one's point of view. There are many types of relationships and circumstances on reservations which fall into these categories. There are many non-members who live on reservations and have a variety of consensual relationships with the tribe and tribal members which would subject them to tribal court jurisdiction.

  7. Why are tribal IV-D agencies seeking to transfer child support cased to tribal courts if Wisconsin is a Public Law 280 state?

    First and foremost, it is an exercise and affirmation of a tribe's sovereignty to work its own child support cases involving its members.

    Even though Wisconsin has civil adjudicatory jurisdiction under Public Law 280, 28 USC § 1360, it does not have civil regulatory jurisdiction over tribal members on the reservation. See Bryan v. Itasca County, 426 U.S. 373 (1976).

    Even though Wisconsin has concurrent adjudicatory jurisdiction under Public Law 280, there are still many reasons why a tribe would want to handle its members' and residents' child support cases. First, it will be more practical and convenient for reservation residents to be able to access a tribal child support office. Some reservation communities are thirty or forty minutes from the county seat. Second, child support deals with families. Tribal families are often culturally unique. A tribal child support agency will have a better understanding of cultural issues that may b associated with paternity and child support. Finally, for purposes of enforcement, tribal child support agencies will be more familiar with tribal law and be more successful enforcing wage assignments, garnishments and contempt orders as needed.

    Wisconsin courts have not ruled on whether child support collection is a civil regulatory activity. Other Midwestern states have split on the issue. See State of Iowa ex rel. Dept. of Human Services v. Whitebreast, 409 N.W.2d 460 (Iowa 7/22/1987) (finding child support collection is civil regulatory) but see Becker County Welfare Dept. v. Bellcourt, 453 N.W.2d 543 (Minn. App. 1990) (finding child support collection is civil adjudicatory).

  8. Why are tribes seeking to transfer custody and visitation in addition to child support from state court to tribal courts?

    Both state and tribal agencies agree it would be impractical and inconvenient to divide up the different elements of a child support case. Having the tribal court hear child support issues while the state court hears child custody matters could lead to delay and inconvenience for the parties.

 

Wisconsin Tribal Judges Association
Wisconsin Tribal Judges Association
Wisconsin Tribal Judges Association