Ho-Chunk Trial Court Decides Defamation Claim under Tribal Customs and Traditions

Very interesting opinion (yet another from Judge Rockman) in Gardner v. Littlejohn.

An excerpt describing the question presented:

The Court must determine whether it has subject matter jurisdiction over this defamation action, and concludes that defamation existed under the customs and traditions of the Ho-Chunk Nation.  The Court finds that the plaintiff has shown that she was not terminated from her employment for an inability to administer third party billing, and thus did not seek to have said termination overturned due to nepotism.  Therefore, the Court finds that the April 14, 2010 document penned by the “Nioxawani Political Activists,” which was titled, Contract Employees: Shadowy Government,  defamed the plaintiff.

An excerpt describing the process of determining Ho-Chunk law:

Under the traditions and customs of the Ho-Chunk Nation, the plaintiff alleged that defamation would be a cause of action under the Ho-Chunk common law tradition of “woigixate,” which was recently enunciated within Supreme Court case law.  Compl.  at 2; Daniel Topping v. HCN Grievance Review Bd., SU 09-08 (HCN S. Ct., July 1, 2010) at 7 (“Woigixate  requires that all people be treated with respect and compassion and that no one should be treated badly or demeaned because of their situation”).  Consequently, Associate Trial Court Judge Amanda L. Rockman certified a question of law to the Traditional Court, inquiring whether Ho-Chunk “custom and tradition recognized defamation.” The Judicial Branch, acting through the Ho-Chunk Nation Traditional Court, may articulate binding law in the form of hocąk tradition and custom.

And the law itself:

The Traditional Court indicated that in the tradition and custom of the Ho-Chunk Nation defamation existed, meaning on occasion, individuals did publicly question the honor of another individual.  Nevertheless,  hocąk people generally spoke the truth.  If someone said something that was a lie or a false statement about another person, then that person typically ignored the lie that was said about them, knowing that it will come full circle back to the lying party.  In other instances, the person who uttered the lie or false statement would repeat it to that person face-to-face with tobacco, and the truth would reveal itself.

The presiding judge also questioned the role of a warrior and any privileges imposed upon warriors when publicly speaking.  The Traditional Court indicated that  a warrior maintained a privilege to speak his mind.  Ho-Chunk people have distinctive cultural values, and one such value is their proud warrior tradition.  Warriors  embody strength, honor, pride, and wisdom, and a warrior‟s success depends on the aforementioned embodiments.  Warriors return to their respective community with experiences that make them valued members of their society. Therefore, the Court relies on the above-referenced tradition and custom as the applicable law in this jurisdiction.

And defenses?

Nevertheless, the defendants, Ronald Anwash, Jeremy P. Rockman, and Boye Ladd, Sr., properly assert a traditional privilege; the defendants are veterans.  Based upon research, veteran privilege for defamation does not exist in any other jurisdiction.  The Court looked to other jurisdictions for a similarity, and for example, legislative immunity exists in defamation actions.6The doctrine of legislative immunity is based in common law, within constitutions, or within statutes.  Typically  legislative immunity is absolute and personal.

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