Here:
kroner opening brief – WI SUPCT
Lower court materials are here.
Wisconsin Supreme Court
Wisconsin Supreme Court Narrowly Reaffirms Discretionary Transfer Statute (Former Teague Protocol)
Here is that order, with a 3-judge dissent: 7-11B.
Justice Roggensack’s dissent repeats her earlier dissent, and seems to focus on this major point:
I have great respect for Native American Tribes and the very valuable contributions that tribal courts make to the administration of justice. However, that respect cannot overcome my constitutional obligations to citizens or expand the authority granted by Wis. Stat. § 751.12. Accordingly, I respectfully dissent.
She repeats this paragraph at the end of the dissent. And more:
Prior to the creation of Wis. Stat. § 801.54, all litigants who satisfied the statutory provisions for jurisdiction in Wisconsin courts had a statutory right to avail themselves of the Wisconsin court system. See Wis. Stat. § 801.04. Wisconsin’s open courthouse doors provide a significant, substantive right for tribal members as well as nonmembers. However, since § 801.54 has become effective, the courthouse doors of Wisconsin have been closed to some litigants, both tribal members and nonmembers.
Oddly, she seems to see no import of the “discretionary” aspect of the transfer rule, or the fact that the rule rightfully gives credence, for the first time in Wisconsin, to the property rights of tribes and tribal members.
Discretionary transfers, as far as I can tell, so far, are Indian child welfare cases mostly. There has been one tort/contract case to have reached the Wisconsin Court of Appeals. Other than Justice Roggensack, and likely people just generally opposed to Indian tribes, no one has a constitutional complaint. Would like to hear more if there is any useful material to digest.
State Supreme Court Outcomes: Wisconsin
And now, the Wisconsin Supreme Court, which has been unhappily in the news.
In Wisconsin, tribal interests prevail in 23 percent of cases.
Here are the cases:
Wisconsin Supreme Court Justice Allegedly Attacks Another Judge
NYTs coverage here.
Split Wisconsin Supreme Court Affirms Life Without Parole for 14-Year-Old Member of Menominee Tribe
Here are the remarkable opinions: 0520supremecourt.
Possibly the most remarkable aspect of the majority opinion is the citation to numerous social science studies strongly advocating against prison time for juveniles, as well as a citation to an Amnesty International report criticizing American states for imposing such long sentences on children.
Another interesting aspect of the majority opinion is the lengthy quotations to the trial judge, speaking to the defendant:
I find it incredibly interesting and somewhat significant that not only am I being asked to impose a sentence in this matter, which is my obligation and my responsibility, but I’m being asked to release a soul. I have to comment on that because that’s an interesting clash of cultures, and it’s what we’re all about as a people. We have to deal with those cultures and those clashes as positively as we can.
And everything I know about you, Omer, and everything I’ve gleaned about you from your——from the information that’s been provided to me, you dealt with those things [o]ppositionally. You weren’t willing to let those cultures and those different ideas intermingle. It had to be your way or no way at all. That’s too bad. And it’s that attitude that you’re going to have to change. . . .
I would hope that you[] turn to spirituality. Native American spirituality gives you something to build on in that regard. It had better because I can tell you right now if your attitude and your ruthlessness and the perception that you have of your relationship to the community in which you are going to find yourself continues as it is, you’re in for a real tough ride.
If I read the opinion correctly, this lecture was given to a 16-year-old.
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.
Badly Split Wisconsin Supreme Court Refuses to Refund Taxes Paid by Ho-Chunk Nation
Here is the opinion in Ho-Chunk Nation v. Wisconsin Dept. of Revenue. An excerpt from the majority:
For the reasons set forth below, we affirm. “[R]eservations or trust lands” are also referred to in the sentence preceding the provision in question; a sensible reading of the statute (Wis.Stat. § 139.323) requires that the two references be read as identifying the same land. The grammatical construction of the sentence itself lends further support to our holding because “was designated” precedes both “a reservation” and “trust land” and means the same thing about each. Given that there is no basis in the federal regulations for recognizing a preliminary, unofficial status for reservations or trust lands, there is likewise no basis for reading this statute as intending to apply to land that has received only preliminary informal approval.
And an excerpt from the dissent:
Unlike this dissent, the majority opinion does not justify its holding on any historical or policy basis. It relies instead on unpersuasive interpretive tools. In my view, the only way we would be justified in denying the Ho-Chunk Nation the requested refund on its DeJope tax collections would be to cite documentary evidence showing that this property was considered and intentionally excluded.
Wisconsin SCT Reviews Ho-Chunk Nation Tax Case
The lower court opinion in Ho-Chunk Nation v. Wisc. Dept. of Revenue is here. Oral argument was last month.
Here are the questions presented:
Is the petitioner entitled to a refund of cigarette tax revenue for the sale of cigarettes on DeJope property pursuant to Wis. Stat. §§ 139.31 and 139.323 (3)?
What is the reasonable interpretation of Wis. Stat. § 139.323 (3)’s “designated . . .trust land” within the context of the sale of cigarettes on the DeJope property?
Wisconsin Supreme Court Justice Warns of Constitutional Problems in a Potential “Oliphant Fix”
The Honorable Patience Drake Roggensack has published “Plains Commerce Bank’s Potential Collision with the Expansion of Tribal Court Jurisdiction by Senate Bill 3320” in the University of Baltimore Law Review. She concludes:
Congress should deliberate carefully on Senate Bill 3320. While crime on tribal land is a real problem that must be addressed, increasing the subject matter jurisdiction of tribal courts has the potential to create additional problems of constitutional dimension. Therefore, even though Plains Commerce Bank involves the examination of subject matter jurisdiction in a civil law context, it provides a well-reasoned framework for significant constitutional concerns. Consideration of Plains Commerce Bank will aid the examination of Senate Bill 3320’s proposed changes in the subject matter jurisdiction of tribal courts in criminal cases. It should not be overlooked in Congress’ deliberative process.
Wisconsin Supreme Court’s New Rule on Discretionary Transfer to Tribal Courts
Interesting development. Wisconsin, being a PL280 state, has issues with concurrent jurisdiction. Now a state court has discretion to stay a state court proceeding if a tribal court has concurrent jurisdiction, and transfer the case to tribal court, if other factors are met.
There were three dissenters, focusing on Plains Commerce Bank. Not sure why, given that the state court has to find concurrent jurisdiction before transferring anyway. What’s the harm if the state court finds jurisdiction consistent with federal common law?
Turtle Talk 