AMC 2016 Track A Session 5 Jurisdiction on Tribal Lands

Transcription

1 ` AMC 2016 Track A Session 5 Jurisdiction on Tribal Lands Dennis Puzz, Stockbridge-Munsee Community, Bowler Amanda L. White Eagle, Ho-Chunk Nation Department of Justice, Black River Falls

2 About the Presenters... Amanda L. White Eagle, Ho-Chunk Nation Department of Justice, Black River Falls. Dennis Puzz, Jr. is the General Counsel for the Stockbridge-Munsee Community. Dennis has enjoyed various experiences in Indian Law. He has served his own tribe (Yurok) as Executive Director where he managed the tribal government, outside consultants and outside law firms and managed all tribal council initiatives including: renegotiation of a gaming compact, settling federal litigation over the management of the Klamath river basin, dispute over the $90+ million Yurok trust fund. Dennis also worked with Best and Flanagan LLP representing tribal interests and was a substantive member of the Wisconsin Indian Child Welfare Act initiative and the Tribal Prosecutor for a client. He has also had two tribal in-house experiences with the Corporate Commission of the Mille Lacs Band of Ojibwe and the Forest County Potawatomi Community focusing on the areas of Gaming, Construction, Tax, Human Resources, and Corporate law matters.

3 Wis. Stat Discretionary Transfer; How did we get here? By Dennis Puzz, Jr. General Counsel Stockbridge-Munsee Community Discretionary Transfer: How did we get here? Eras of Federal Indian Policy PL (18 U.S.C. 1162, 28 U.S.C. 1360) Teague Decisions Discretionary Transfer Rule Eras of Federal Indian Policy Contact, Treaty and Relocation ( ) Allotment and Assimilation ( ) Termination and Relocation ( ) Self Determination (1960s to Present) 1

4 Termination and Relocation ( ) Indian Claims Commission Termination Policy 1953 Menominee Public Law Wisconsin, Alaska, California, Minnesota, Nebraska, Oregon Relocation Act of 1956 Major Cities (Minneapolis, Chicago, NYC, Oakland) Self Determination (1960s to Present) Indian Civil Rights Act of 1968 Indian Financing Act of 1974 Indian Self Determination and Education Act of 1975 Indian Child Welfare Act of 1978 American Indian Religious Freedom Act of 1978 PL (18 U.S.C. 1162, 28 U.S.C. 1360) 18 U.S.C STATE JURISDICTION OVER OFFENSES COMMITTED BY OR AGAINST INDIANS IN INDIAN COUNTRY (CRIMINAL) FEDERAL CRIMINAL JURISDICTION STATE TRIBAL CRIMINAL JURISDICTION = REMAINS UNCHANGED RESULT CONCURRENTTRIBALAND STATE JURISDICTION UNFORTUNATELY, THE LANGUAGE WAS LESS THAN CLEAR. THE COURTS HAVE SINCE CLARIFIED. [I]F THE INTENT OF A STATE LAW IS GENERALLY TO PROHIBIT CERTAIN CONDUCT, IT FALLS WITHIN PUB. L. 280 S GRANT OF CRIMINAL JURISDICTION, BUT IF THE STATE LAW GENERALLY PERMITS THE CONDUCT AT ISSUE, SUBJECT TO REGULATION, IT MUST BE CLASSIFIED AS CIVIL/REGULATORY AND PUB. L. 280 DOES NOT AUTHORIZE ITS ENFORCEMENT ON AN INDIAN RESERVATION. THE SHORTHAND TEST IS WHETHER THE CONDUCT AT ISSUE VIOLATES THE STATE S PUBLIC POLICY. CALIFORNIA V. CABAZON BAND OF MISSION INDIANS, 480 U.S. 202, 209 (1987). 2

5 PL (18 U.S.C. 1162, 28 U.S.C. 1360) 28 U.S.C STATE CIVIL JURISDICTION IN ACTIONS TO WHICH INDIANS ARE PARTIES INTENDED TO ALLOW TRIBAL MEMBER ACCESS TO STATE FORUMS BECAUSE VERY FEW TRIBAL FORUMS EXISTED AT THIS TIME. UNFORTUNATELY, LEGISLATIVE LANGUAGE WAS UNCLEAR. THE COURTS HAVE SINCE CLARIFIED INTENT. PUBLIC LAW 280 WAS PRIMARILY INTENDED TO REDRESS THE LACK OF ADEQUATE INDIAN FORUMS FOR RESOLVING PRIVATE LEGAL DISPUTES BETWEEN RESERVATION INDIANS, AND BETWEEN INDIANS AND OTHER PRIVATE CITIZENS. BRYAN V. ITASCA COUNTY, 426 U.S. 373, (1976). Teague v. Bad River, 665 N.W.2d 899 (2003) Employment Law Dispute Alleged breach of employment contracts. Filed in State Court and Tribal Court. Tribal Court issued a decision first in time and declared the contracts void. State Court issued a decision in favor of former employee and awarded damages. Protocol developed for determining jurisdiction under comity. Ultimately, the Supreme Court holds that the Tribal Court Order controls in this situation but cannot agree on the legal theory that leads to this result. Full Faith and Credit (Wis. Stat ) v. 13 factor comity standard Discretionary Transfer Rule approved in 2008 Elements Concurrent Jurisdiction Transfer by stipulation of parties or application of comity factors (Teague) Notice and hearing on the record Stay of State Court proceedings for up to 5 years then dismissed Issuance of stay is appealable (1) State Court retains filing fee No alteration of either courts inherent jurisdiction 3

6 Discretionary Transfer Petition to amend in 2009 for Child Support Cases Background Volume of Child Support Cases to be transferred to Tribal Child Support systems overwhelming the system. Elements Transfer by court s own motion or the motion of any party Notice of opportunity to object Transfer occurs unless a party objects in a timely manner. Then a hearing is held on the comity factors (a) (k). Rule Petition Requested the Supreme Court Dissolve in July No stated basis for request that is rooted in the operation of the rule. Issues raised in the petition were internal tribal governance issues. Unfortunately, this petition fueled concerns about the tribal judicial system. Rule Petition Public hearing and working meeting were held on the Petition. Overall, positive discussion of the discretionary transfer rule. Further discussions between the tribal judiciary and state judiciary promotes cooperation and understanding. Still awaiting a final outcome. 4

7 Take Aways Both the State Judicial System and the Tribal Judicial System have important roles in administering justice for Wisconsin Citizens. Greater collaboration and communications between the systems result in an improved justice system. With dedication and effort the termination system of concurrent jurisdiction can work in a manner that improves and strengths both justice systems. Thank you! Contact info. Dennis Puzz, Jr. General Counsel Stockbridge-Munsee Community (715) Dennis.puzz@Mohican-nsn.gov 5

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