On July 31, 2008, this court created Wis. Stat. § 801.54 governing the
discretionary transfer of cases to tribal court. See S. Ct. Order 07-11, 2008 WI 114 (issued Jul. 31, 2008, eff. Jan. 1, 2009)
(Roggensack, J., dissenting).
On February 9, 2009, the Wisconsin Department of
Children and Families ("the Department") submitted a letter to the
court asking the court to create a narrow exception to the rule to facilitate
transfer of post-judgment child support cases to tribes under certain
circumstances. The Personal
Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), as
amended by the Balanced Budget Act of 1997, authorized the direct funding of tribal
child support enforcement programs by the federal government. The Department of Health and Human Services ("DHSS")
published rules
providing the mechanism for tribes to submit child support enforcement plans
and, upon approval, to receive direct federal funding of tribally operated
programs. As part of this program, federal regulations governing state IV-D plans
were amended to require states to cooperate with tribal IV-D programs. In Wisconsin,
the Oneida Nation has received funding to establish such a program and assume
the management of certain post-judgment child support cases from state circuit
courts.
Accordingly, the Department has been working on the
transfer of approximately 4,000 post-judgment child support cases from state
court to the Oneida Nation as part of this program. However, the Department has ascertained that complying
with the affirmative notice requirements of Wis. Stat. § 801.54(2) will make these transfers cost-prohibitive
to effectuate. The Department supports
the adoption of a narrow exception that will facilitate these transfers while
still affording the individual parties an opportunity to object to the transfer. The Department indicates that the Oneida
Nation and the Brown County Circuit Court acknowledge the need for this request. The Department has also consulted with the
Wisconsin Department of Justice regarding this proposal. The Department asks the court to expedite its
consideration of this request because the Oneida Nation's participation in the
federal program and its receipt of federal funds may be jeopardized as a result
of the delay in transferring these cases.
Expedited consideration by the court is permissible pursuant to Wis. S. Ct.
IOP III-A.
The court discussed this matter at its open
administrative conference on March 9, 2009.
Justice Patience Drake Roggensack reiterated her objection to the court's
adoption of the rule. A majority of the
court voted to grant the request of the Department. Justice Roggensack sought additional feedback
on the proposed amendment from the Wisconsin Department of Justice. The court also requested the Department
prepare the forms that will be used to notify parties of a prospective case transfer. The Wisconsin Tribal Judge’s Association and
the Wisconsin State-Tribal Justice Forum submitted written statements in
support of the amendment. Mr. Rick
Cornelius submitted a statement opposing the rule.
The court discussed this matter again at an open
administrative conference on May 1, 2009.
The court agreed to amend the proposal to reflect a suggestion from the
Wisconsin Department of Justice requiring an explicit finding of concurrent
jurisdiction as part of the amendment.
The court discussed the proposed forms prepared by the Department and voted
to advise the records management committee, acting on behalf of the Judicial
Conference, to develop standard forms to effectuate this amendment that are
substantially similar to the forms attached to this order as exhibits A and B. A majority of the court then confirmed its decision
to grant the request of the Department.
Justice Patience Drake Roggensack stated she dissented from the adoption
of the amendment and made a statement on the record explaining the basis for her
dissent. She was joined by Justice
Ziegler and Justice Gableman.
Accordingly, effective the date of this order:
Section 1. 801.54 (1) of the statutes is amended to read:
801.54 (1) Scope.
In a civil action where a circuit court and a court or judicial system
of a federally recognized American Indian tribe or band in Wisconsin ("tribal
court") have concurrent jurisdiction, this rule authorizes the circuit
court, in its discretion, to transfer the action to the tribal court under
sub. (2m) or when transfer is warranted under the factors set forth in sub.
(2). This rule does not apply to any
action in which controlling law grants exclusive jurisdiction to either the
circuit court or the tribal court.
Section 2. 801.54 (2m) of the statutes is created to
read:
801.54 (2m) Tribal
Child Support Programs. The
circuit court may, on its own motion or the motion of any party, after notice
to the parties of their right to object, transfer a post-judgment child
support, custody or placement provision of an action in which the state is a
real party in interest pursuant to s. 767.205(2) to a tribal court located in
Wisconsin that is receiving funding from the federal government to operate a
child support program under Title IV-D of the federal Social Security Act (42 U.S.C.
654 et al.). The circuit court must
first make a threshold determination that concurrent jurisdiction exists. If concurrent jurisdiction is found to exist,
the transfer will occur unless a party objects in a timely manner. Upon the filing of a timely objection to the
transfer the circuit court shall conduct a hearing on the record considering
all the relevant factors set forth in sub. (2).
IT IS ORDERED that the court directs the records
management committee, acting on behalf of the Judicial Conference, to develop
standard forms to effectuate this amendment that are substantially similar to
the forms attached to this order as Exhibits A and B.
IT IS FURTHER ORDERED that notice of this amendment of
Wis. Stat. § 801.54
be given by a single publication of a copy of this order in the official state
newspaper and in an official publication of the State Bar of Wisconsin.
Dated at Madison, Wisconsin,
this 1st day of July, 2009.
BY THE COURT:
David R. Schanker
Clerk of Supreme Court
Exhibit A
STATE OF WISCONSIN CIRCUIT COURT ________COUNTY
In re
_____________________
Petitioner
v. Case
No. ____________
_____________________
Respondent
REQUEST
FOR HEARING ON CASE TRANSFER TO [Name of tribe] TRIBE
TO THE CIRCUIT COURT JUDGE OF _______
COUNTY:
I request a hearing
to contest the transfer of my case regarding the issues of legal custody,
physical placement and child support to the [Name of Tribe] Tribe of Indians.
_________________________________
Signature
_________________________________
Name
(please print)
_________________________________
Date
----------FOR AGENCY USE
ONLY----------
The above requested hearing is scheduled for
:
Date: _______________________________
Time: ________________________________
Room:________________________________
Presiding
Official:_______________________________
Address:_______________________________
Exhibit
B
______ COUNTY
CHILD
SUPPORT AGENCY
123 ______ Lane TEL:
(000) 000-0000
___ Floor
FAX: (000) 000-0000
_______, WI TDD:
(000) 000-0000
Mailing Address: P.O. Box
00000, _______, WI 54000-0000
http://www.co.____.wi.us/child_support/
Party Name Date
Address Case
No.:
Dear
<NAME>
The
[Name of Tribe] has received federal approval to operate a tribal child support
agency. The Tribe has enacted laws
authorizing the establishment of paternity and enforcement of child support.
You
or the other parent in your case is a member of the [Name of Tribe] Tribe. Therefore, your child
support case may be transferred to the [Tribal] Child Support
Agency. If the case is transferred in part, the issues of (1) legal custody, (2)
physical placement and (3) child support will be under the jurisdiction of [Name
of Tribal Court]. Other aspects of your
family law case, such as maintenance, will remain with the [Insert County] family court.
This
is your formal notice of [Name of County]____ County’s
intent to transfer your child support case to the [Tribal] Child Support Agency. You have a
right to object to this transfer.
If
you want to object to this transfer, you must
complete the enclosed Request for
Hearing. Then, within ten (10)
business days of the date of this letter, you must send the completed Request
for Hearing to the ______ County Child Support
Agency, P.O. Box 00000,
_________, WI 54000-0000. If you return
the request within the appropriate time period, a hearing will be scheduled in ______ County Court,
and all parties will be sent a notice of the hearing date, time and location.
If
you do not complete and return the Request
for Hearing form on a timely basis, we will ask ______ County Court to sign an order
transferring your case to the [Tribal] Child Support
Agency.
This agency is an equal
opportunity employer and service provider.
If you have a disability and need information in an alternative format,
or if you need it translated to another language, please contact us at the
phone number or address listed at the top of this letter.
Sincerely,
Agency
Attorney, Child Support Agency
¶1 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The
majority of this court chooses to disregard the effect that its decision has on
the fundamental constitutional rights of parents, gives no direction to circuit
courts in regard to the standards under which concurrent subject matter
jurisdiction could exist in tribal court and abrogates the rights of litigants
who have chosen Wisconsin circuit courts as their forums. Once again, this court has exceeded the
authority that the legislature granted in Wis. Stat. § 751.12.
Accordingly, I respectfully dissent.
I. BACKGROUND
¶2 On July 1, 2008, a majority of this court legislated to create
Wis. Stat. § 801.54,
which permits the transfer of civil cases pending in Wisconsin circuit courts
to tribal courts, over the objections of litigants and when all of the
litigants are not tribal members. S. Ct.
Order 07-11, 2008 WI 114, 307 Wis. 2d xxi (eff. Jan.
1, 2009). I dissented from that
order. Id. at xxiii. I did so because: (1) tribal court concurrent subject matter
jurisdiction rarely exists when non-tribal members are parties; (2)
§ 801.54 gave no guidance on the standards to be applied in evaluating
whether tribal courts have concurrent subject matter jurisdiction; (3)
§ 801.54 contravenes Wis. Stat. § 751.12(1) by altering substantive
rights of the parties to civil litigation; and (4) no information was provided
about the substantive and procedural rights that are available in the various
tribal courts to which we authorized transfers.
Id.
¶3 Today,
a majority of this court expands the potential for infringement of the
constitutional rights of non-tribal and tribal members by permitting the
transfer of "post-judgment child support, custody or placement provision
of an action in which the state is a real party in interest pursuant to s.
767.205(2) to a tribal court located in Wisconsin," without a
hearing. S. Ct. Order 07-11A, supra
at 4.
II.
DISCUSSION
¶4 Today's
change is a further deprivation of the rights of litigants in cases involving
custody, placement and child support because Wis. Stat. § 801.54, as
originally enacted, required the circuit court to provide notice and to hold a
hearing in each case before a transfer could be made. § 801.54(2). During that hearing the circuit court was
required to first determine whether concurrent subject matter jurisdiction
existed in the tribal court, and then to examine 11 listed factors, as well as
any other factors that the court deemed relevant, in order to determine whether
to order the transfer to tribal court. Id.
A. Constitutional
Concerns
¶5 The
majority now eliminates the obligation to hold a hearing in each individual
custody, placement and child support matter.
However, custody and placement decisions involve the most fundamental of
constitutional rights: the right to the
care and custody of one's children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); State v. Shirley E.,
2006 WI 129, ¶¶23-24, 298 Wis.
2d 1, 724 N.W.2d 623.
¶6 The
fundamental rights of parents are protected by the Due Process Clause of the
Fourteenth Amendment, Meyer v. Nebraska,
262 U.S. 390, 399 (1923),
and the Equal Protection Clause of the Fourteenth Amendment, Skinner v.
Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942). However, this latest amendment to Wis.
Stat. § 801.54 is
contrary to our obligation to uphold the Constitutions of the United States and the State of Wisconsin.
¶7 As
the United States Supreme Court has explained, the United States Constitution
is not binding on tribal courts. Plains
Commerce Bank v. Long Family Land & Cattle Co., 128 S. Ct. 2709,
2724 (2008) (citing Talton v. Mayes, 163 U.S. 376, 382-85 (1896)). However, litigants in Wisconsin courts are protected by the United States
Constitution and the Wisconsin Constitution.
Helgeland v. Wis. Municipalities, 2008 WI 9, ¶13, 307 Wis. 2d 1, 745 N.W.2d 1. The Constitutions provide the framework in
which the courts of the State of Wisconsin
are obligated to operate. Id. That constitutional framework includes the
United States Constitution's Bill of Rights and the Wisconsin Constitution's
Declaration of Rights. Id.
However, as separate sovereigns antedating the Constitutions, Indian
tribes have "historically been regarded as unconstrained by those [federal]
constitutional provisions framed specifically as limitations on federal or
state authority." Santa
Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978).
¶8 In considering transfers of child custody and placement issues to
tribal courts, it is also important to note that both the United States
Constitution and the Wisconsin Constitution require the separation of church
and state. U.S. Const. amend. I; Wis. Const. art. I, § 18. Separation of church and state is one of the
basic tenets of our democracy. However,
tribal courts do not separate church and state; instead, tribal courts impose
their religious values as custom and tradition that informs the tribal courts'
view of the law.
¶9 Wisconsin courts have no power to
review decisions on child support or custody and placement that may be made
after transfer to tribal court because those decisions will be made by an
independent sovereign. Even federal
courts cannot review tribal court decisions in the normal course of a federal
court review. Duro v. Reina, 495 U.S. 676, 709
(1990). Instead, federal review of
tribal court decisions is provided by a separate action for habeas corpus. Id. This lack of direct review of tribal court
decisions is a significant deprivation of guaranteed procedural rights. As Justice Kennedy recognized, "[t]he
political freedom guaranteed to citizens by the federal structure is a liberty
both distinct from and every bit as important as those freedoms guaranteed by
the Bill of Rights." United
States v. Lara, 541 U.S.
193, 214 (2004) (Kennedy, J., concurring).
¶10 I
recognize that holding a hearing in each case is more expensive, uses more
court time and is generally more difficult than giving a notice to
unrepresented parents and presuming both that the parents know how their
interests will be addressed in tribal court and that they will ask for a
hearing if they object to the transfer.
However, neither presumption has merit.
¶11 First,
how are litigants to know what procedures and substantive rights will be
accorded in tribal court? I do not have
the answers to those questions, nor does the majority of this court, although I
repeatedly requested that the majority get this information before Wis. Stat.
§ 801.54 was enacted on July 1, 2008.
Second, if litigants do not know how matters proceed in tribal court,
how can they make an informed decision about whether to object to the transfer
and how can they know what concerns to bring to the circuit court if they do
file an affirmative objection to the transfer?
¶12 The
process the majority has established runs roughshod over the constitutional
rights of parents. Stanley, 405 U.S. at 656-57
(instructing that efficient procedures cannot trump the constitutional rights
of parents). Furthermore, the genesis of
the tribes' petition for this amendment to Wis. Stat. § 801.54 was
asserted to be the tribes' desire to collect federal funds that would be
forthcoming if the tribes established mechanisms for the collection of
delinquent child support. It was not
necessary to that purpose to connect child custody and placement decisions to
the collection of child support, and doing so impacts the most fundamental of
constitutional rights, the right to the care and custody of one's child.
B. Concurrent Jurisdiction
¶13 I continue to have concerns that, as circuit courts attempt to
comply with Wis. Stat. § 801.54's
requirement to determine whether tribal court concurrent subject matter
jurisdiction exists, they will not recognize that tribal court concurrent
subject matter jurisdiction is almost nonexistent when a non-tribal member is a
party to the lawsuit. Plains Commerce
Bank, 128 S. Ct. at 2722. The law the majority enacts has given them no
direction.
¶14 As an initial matter, tribal
court subject matter jurisdiction is established by federal laws and United
States Supreme Court precedent. Nat'l
Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845,
851-52 (1985). Stated otherwise,
"whether a tribal court has adjudicative authority over nonmembers is a
federal question"; it is not decided under state law or tribal law. Plains Commerce Bank, 128 S. Ct.
at 2716 (citing Iowa
Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 15 (1987)).
¶15 The
United States Supreme Court has explained that tribal court concurrent subject
matter jurisdiction is extremely limited when non-tribal members are among the
parties to an action. Montana
v. United States, 450 U.S. 544,
565-66 (1981). The United States Supreme
Court recently has affirmed that tribal court jurisdiction over nonmembers for
conduct that occurs off tribal land is almost nonexistent, having been upheld
on only one occasion. Plains Commerce
Bank, 128 S. Ct. at 2722. The Court has also said, "[T]ribes do
not, as a general matter, possess authority over non-Indians who come within
their borders: '[T]he inherent sovereign
powers of an Indian tribe do not extend to the activities of nonmembers of the
tribe.'" Id.
at 2718-19 (quoting Montana, 450 U.S. at 565).
¶16 Even
when nonmember conduct occurs on tribal land, the general rule is that tribes
lack subject matter jurisdiction over nonmembers. Montana,
450 U.S.
at 565. Tribes "may" have
concurrent subject matter jurisdiction over nonmembers: (1) to "regulate . . . the
activities of nonmembers who enter consensual relationships with the tribe or
its members, through commercial dealing, contracts, leases, or other
arrangements," and (2) to regulate nonmember conduct that "threatens
or has some direct effect on the political integrity, the economic security, or
the health or welfare of the tribe."
Id.
at 565-66. But as the Court's recent
discussion of Montana in Plains Commerce Bank shows, the two
exceptions to the lack of subject matter jurisdiction in tribal courts are not
to be broadly interpreted; rather, they are extremely limited. Plains Commerce Bank, 128 S. Ct. at 2720.
¶17 In
Plains Commerce Bank, tribal members (the Longs) sued a nonmember
(Plains Commerce Bank) in tribal court, alleging that the bank discriminated
against them when it sold property. Id. at 2715. The Longs further alleged that the property
sales had arisen directly from their preexisting commercial relationship with
the bank, and accordingly, the sales fell within the first Montana exception to the general rule
that tribes lack jurisdiction over nonmembers.
Id.
at 2715-16. The tribal jury awarded
$750,000 in damages. Id. at 2716. The bank then brought a declaratory judgment
action in federal court asserting that the tribal court lacked subject matter
jurisdiction to adjudicate the claims, and therefore, the judgment was
void. Id.
¶18 The
Supreme Court agreed with the bank. The
Court began by explaining that the sovereign powers of tribes are limited by
virtue of the tribes' "incorporation into the American republic." Id.
at 2719. In so incorporating, the tribes
generally lost the right to govern persons coming within tribal territory
except for tribal members. Id.
¶19 In
any attempt to exert jurisdiction over nonmembers, "[t]he burden rests on
the tribe to establish one of the exceptions to Montana's general rule" that
precludes jurisdiction over nonmembers. Id. at 2720. The burden of proof rests with the tribe to
establish that concurrent jurisdiction exists in tribal courts because of the
general rule that tribal courts do not have subject matter jurisdiction to
adjudicate claims involving nonmembers.
Wisconsin Stat. § 801.54 is in conflict with that requirement of
federal law because under § 801.54(2), a circuit court can transfer a case
to tribal court on its own motion.
Therefore, the tribe would not be a moving party who carries the burden
of proof explained by the United States Supreme Court in Plains Commerce
Bank. The circuit courts of
Wisconsin cannot make a discretionary transfer to tribal courts, sua sponte,
and still comply with this aspect of federal law because meeting that tribal
burden is one prerequisite for the exercise of concurrent subject matter
jurisdiction by tribal courts.
¶20 The
United States
Supreme Court also has explained that "a tribe's adjudicative jurisdiction
does not exceed its legislative jurisdiction." Id.
at 2720 (quoting Strate v. A-1 Contractors, 520 U.S. 438, 440
(1997)). This is an important principle
because if a tribe could not pass a law that bound the conduct and the parties
whose claims and defenses a tribal court attempts to adjudicate, then the
tribal court lacks concurrent subject matter jurisdiction over those claims and
defenses. Id. Tribes do not have the legislative
jurisdiction to enact a law that will establish a non-tribal member's custody
and placement rights to his or her child.
See Jacobs v. Jacobs, 138 Wis. 2d 19, 26-28, 405 N.W.2d 668 (Ct. App. 1987).
¶21 It
is not a simple matter for a circuit court to determine whether a case fits
within one of the two very narrow Montana
exceptions to the tribal courts' lack of subject matter jurisdiction over
nonmembers. Wisconsin Stat.
§ 801.54 is completely inadequate in addressing this major obstacle to the
exercise of tribal court jurisdiction over nonmembers; yet, it is a critical
decision that must be made before any transfer can occur. This is so because the contention that a
court lacks subject matter jurisdiction may be raised at any time, even after
judgment. See Arbaugh v.
Y&H Corp., 546 U.S.
500, 506-07 (2006); see also Fed. R. Civ. P. 12(h)(3). Furthermore, "subject matter
jurisdiction cannot be created by waiver or consent." United States v.
Hazlewood, 526 F.3d 862, 864 (5th Cir. 2008) (quoting Howery v. Allstate
Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001)). The majority continues to give the circuit
courts no legal guidelines to assist with this weighty legal task.
C. Wisconsin
Stat. § 751.12(1)
¶22 This court's power to legislate, which we speak of as
"rule-making," is derived from Wis. Stat. § 751.12(1), which provides in relevant part:
The state supreme court shall,
by rules promulgated by it from time to time, regulate pleading, practice, and
procedure in judicial proceedings in all courts, for the purposes of
simplifying the same and of promoting the speedy determination of litigation
upon its merits. The rules shall not
abridge, enlarge, or modify the substantive rights of any litigant.
(Emphasis added.)
¶23 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 as
well as non-tribal litigants. However,
since § 801.54 has become effective, the courthouse doors of Wisconsin can be closed
to some litigants, both tribal members and nonmembers. This limitation of the substantive rights of
litigants is contrary to the express provisions of Wis. Stat. § 751.12(1),
which provides that any statute that this court creates "shall not
abridge, enlarge, or modify the substantive rights of any litigant."
¶24 The
latest amendment to Wis. Stat. § 801.54
permits a court to eliminate the right to litigate in state courts without
holding a hearing before transferring the matter to tribal courts. In so doing, the majority eliminates not only
the substantive right to litigate in state courts, but it eliminates the right
to a hearing unless a party affirmatively requests one. This new law abridges the rights of litigants
contrary to the express directive of Wis.
Stat. § 751.12(1).
III. CONCLUSION
¶25 In conclusion, the majority of this court chooses to disregard the
effect that its decision has on the fundamental constitutional rights of
parents, gives no direction to circuit courts in regard to the standards under
which concurrent subject matter jurisdiction could exist in tribal court and
abrogates the rights of litigants who have chosen Wisconsin circuit courts as
their forums. Once again, the majority
has exceeded the authority that the legislature granted in Wis. Stat. § 751.12. Accordingly, I respectfully dissent.
¶26 I am authorized to state that Justices ANNETTE KINGSLAND ZIEGLER
and MICHAEL J. GABLEMAN join in this dissent.