WisBar News: Supreme court discusses discretionary transfer of cases to tribal court petition; will seek more input on this important issue:

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    April
    17
    2008

    Supreme court discusses discretionary transfer of cases to tribal court petition; will seek more input on this important issue

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    At an open administrative conference on April 15, the Wisconsin Supreme Court tentatively adopted in principle the concept of the discretionary transfer of civil cases to tribal court as requested in Petition 07-11. A public hearing was held on Jan. 8, 2008. The court has received feedback since that hearing from the State-Tribal Justice Forum, Legislative Counsel Special Committee on State-Tribal Relations, and the Department of Justice.

    Supreme court discusses discretionary transfer of cases to tribal court petition; will seek more input on this important issue

    At an open administrative conference on April 15, the Wisconsin Supreme Court tentatively adopted in principle the concept of the discretionary transfer of civil cases to tribal court as requested in Petition 07-11. A public hearing was held on Jan. 8, 2008. The court has received feedback since that hearing from the State-Tribal Justice Forum, Legislative Counsel Special Committee on State-Tribal Relations, and the Department of Justice.

    The court looked at a redraft of the proposed rule and decided it still needs more input before it can complete its work. The purpose of the proposed rule is to effectively and efficiently allocate judicial resources. In situations where a circuit court and a tribal court have concurrent jurisdiction, this provision would authorize the circuit court, in its discretion, to transfer a case to the appropriate tribal court. In a three-plus hour discussion, the court agreed that this rule is important and it appreciates the great deal of work that has been put forth to create proposed statute 801.54.

    The court expressed concern over several issues including the flexibility of transfer and the possible loss of rights that may occur when a case is transferred. The new rule should ensure that parties do not lose any rights and cases are not transferred to a court when all parties agree do not agree to the transfer. The court also considered concurrent jurisdiction versus jurisdiction over parties, for instance, protecting the rights of an individual who is not a member of a tribe and the incident in question occurs on tribal land.

    The State Bar supports the petition submitted by A. John Voelker, Director of State Courts, on behalf of the State-Tribal Justice Forum. No one testified in opposition the January hearing.

    The court hopes to complete its redraft of the proposed rule quickly and plans to take the issue up again before the end of July. Read in-depth coverage of the January hearing.