Commentary on the Wisconsin Supreme Court’s Kroner Decision

The Wisconsin Supreme Court had long been a leader, perhaps reluctantly, in developing excellent tribal-state court relationships dating back to its important Teague decision nearly ten years ago. The Teague decision led to the Teague protocol, which authorizes state court judges to transfer certain cases arising in Indian country. The last review of the protocol resulted in a 4-3 split amongst the Wisconsin justices, reaffirming the protocol, even for some nonconsenting nonmembers, but with very skeptical dissenters arguing that Tribal jurisdiction over nonmembers was simply untenable on its face for a host of reasons apparently inspired by Justice Souter’s concurrence in Nevada v. Hicks. Even so, for a PL 280 state to voluntarily recognize concurrent tribal court jurisdiction was an important development.

Yesterday’s Kroner’s decision undercut the Teague protocol without eliminating it. Four Justices in the split decision would hold that Kroner, a nonmember suing the corporation for wrongful discharge, has what amounts to an absolute veto when it comes to tribal jurisdiction. The fact that Kroner was a former employee with the tribe who had voluntarily (if implicitly) acquiesced to tribal jurisdiction in a contractual arrangement wasn’t important. The fact that Kroner probably (though we don’t know for sure) worked from Indian country also wasn’t important. What seems to be important is the possibility that the tribal court wouldn’t provide adequate due process to a nonmember. There doesn’t appear to be an evidence that Oneida courts have a history of railroading nonmembers (nor is there evidence they have not). In most other courts, this was an easy case in favor of at least concurrent tribal court jurisdiction.

None of this is new, but it is unfortunate, I think, for future nonmember litigants in Wisconsin Indian country. No tribe will allow a nonmember to ever sue a tribe in Wisconsin courts, not with immunity kicking around. The Kroner decision sends a bad message to Wisconsin tribes, who are incredibly successful business partners with the state of Wisconsin — even with American due process protections in Wisconsin courts (that are absent in tribal courts, supplemented by tribal protections deemed inadequate), tribal interests will not be respected in state courts, either. Kroner reads like a policy brief — it is a policy choice by a majority of the court — but that is no different than if the case came up in the US Supreme Court. Surely, the outcome would be the same. Of course, the Wisconsin SCT will soon decide an immunity case as well. Depending on that outcome, battle lines could be drawn, which is bad for business in Wisconsin.

Wisconsin tribal interests and their friends in the policymakers branches of Wisconsin government may have to go back to the drawing board. Maybe that’s not possible. This case may be a harbinger of bad news for many parts of Indian country that may have thought they solved their intergovernmental disputes through negotiation, only to have that arrangement undercut by court decisions. There is a case pending in Washington (the AUTO case) that might have a similar outcome but with far more disastrous consequences.

(ETA–this issue also arises in tribal-state negotiated ICWA laws and agreements, where some courts treat the negotiated law or agreement with hostility, undercutting their effectiveness. See Minnesota, Iowa, and California).

Wisc. SCT Justice Unhappy with Teague Protocol

News article here.

Tribal court judges assert there’s no problem with consent to tribal court transfer:

Oneida Chief Judge Winifred Thomas told the Supreme Court this week that the results have been excellent. She said the tribal courts try very hard to create a win-win situation, even though the parents have agreed to disagree.

Thomas says the transfers to tribal courts are important, because she believes many Native Americans don’t get a fair shake in circuit courts.