Wisconsin Lawyer
Vol. 79, No. 6, June
2006
Surveying the Boundaries:
State and Tribal Court Jurisdiction
When disputes concerning overlapping state court and tribal court
jurisdiction occur within the
Ninth and Tenth Judicial districts, the parties and courts can use an
agreed-on procedure to determine which court has jurisdiction to
proceed. When there is a risk of a deadlock between the courts, the
federal tribal exhaustion doctrine, coupled with comity's critical
role in resolving interjurisdictional disputes, makes deference to
proceeding in tribalcourt more likely.
by Beth Ermatinger
Hanan & William H. Levit Jr.
leven federally recognized
Indian tribes are located in Wisconsin. More and more, tribal members
and nonmembers interact, do business with each other, and occasionally
become involved in legal disputes. When civil disputes arise, one of the
first questions that must be answered is which court has jurisdiction to
resolve the parties' quarrel. If the state and tribal courts both have
jurisdiction, the next question is, which court should proceed? Over the
past several years, the Wisconsin Supreme Court, using its
decision-making power, and circuit and tribal court judges, using their
rule-making powers, have devised rules by which many interjurisdictional
issues can be decided.
This article discusses the Wisconsin Supreme Court's Teague v.
Bad
River Band of Lake Superior Chippewa Indians decisions and the
resulting jurisdictional allocation protocols now in place in the two
judicial districts in which most of the state's Indian tribes are
located. It also discusses the only litigation to arise thus far after
the Teague case that has presented such jurisdictional issues.
The article concludes with some observations about future
interjurisdictional disputes in Wisconsin state and tribal courts. The
procedural background of Teague is presented in some detail as
an
aid to understanding areas of possible jurisdictional overlap.
Procedural History of Teague
Jerry Teague, who was not a member of the Bad River Band, was
employed as general manager of the Bad River Band's casino. He entered
into employment contracts with the Band in 1993 and 1995. After his
termination, he filed a complaint in Ashland County Circuit Court,
seeking to compel arbitration pursuant to the terms of his
contract.1 Early on, circuit court Judge
Thomas Gallagher determined that the Band had waived sovereign immunity
as a defense by including in the contract an arbitration clause and by
acting under its corporate charter, which contained a sue and be sued
clause. Later in the proceedings, the Band asserted that the employment
contracts were invalid because they had not been approved by the Band's
tribal council and by the U.S. Secretary of the Interior, as required by
the Band's corporate charter.2
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Hanan
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Levit
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Beth Ermatinger Hanan, U.W. 1996, is a
member of Gass Weber Mullins LLC, Milwaukee, where she does appellate
and trial work. William H. Levit Jr.,
Harvard 1967, is a shareholder of Godfrey & Kahn S.C. in its
Milwaukee office where he does litigation and arbitration and serves as
a mediator and arbitrator.
The views expressed are those of the authors and not of Mr. Jerry
Teague, whom Ms. Hanan represented on appeal in Teague v. Bad River
Band, nor of the Forest County Potawatomi Community, which Mr. Levit
represented in the Mohr litigation described in the latter part of this
article, and which he continues to represent in other matters.
More than a year after Teague started his action, the Band filed its
own suit in Bad River Tribal Court, seeking a declaration on the
validity of the contracts and reasserting its claim that the contract
lacked the requisite tribal council approval.3 The Band asked the circuit court to stay its
proceedings until tribal court judge Alton Smart ruled on the tribal law
challenges to the contracts and all tribal remedies were exhausted.
Teague responded to the Band's stay motion by asserting that the issue
of the contracts' validity was not dispositive, because even if the
contracts were not properly executed, Teague was still entitled to rely
on the apparent authority of the tribal officials who signed
them.4
The circuit court considered the apparent authority argument and
declined to stay its proceedings because the tribal court action would
not entirely dispose of Teague's claim. The circuit court opined that
the tribal court, which did not have its own body of contract law, could
address the limited issue of actual authority before the circuit court
resolved the rest of the case.5 After that
hearing, the Band amended its tribal court complaint, seeking to
establish invalidity of the contracts on an apparent authority
basis.
Teague's counsel accepted service of the amended tribal court
complaint but did not plead responsively in tribal court. Nor did he
seek a stay of tribal court proceedings or appear before the tribal
court to challenge either personal or subject matter jurisdiction.
Teague participated in discovery, which was conducted simultaneously in
both cases.6 The Band's tribal court motion
for default judgment, on the ground that the contracts were invalid, was
granted.7
Then, pursuant to Wis. Stat. section 806.245, the Band sought full
faith and credit in the circuit court for the tribal court default
judgment. The circuit court denied the motion, relying on the "prior
action pending" rule of Syver v. Hahn.8 Applying the Syver rule, Judge Gallagher
held that the tribal court, as a court of concurrent jurisdiction, did
not properly have jurisdiction over the matter because the case was
filed first in circuit court.
The circuit court also held that the default judgment was not on the
merits, and that the Band had engaged in fraud and coercion by pursuing
its tribal court action.9 After an Ashland
County jury found Teague's employment contracts valid, an arbitrator
awarded him more than $390,000 in damages. The circuit court then
entered judgment in Teague's favor. The Band appealed, arguing that the
circuit court should have given full faith and credit to the tribal
court default judgment.10
The court of appeals, in Teague I, reversed the circuit
court,
holding that the "prior action pending" rule did not render the tribal
court judgment invalid.11 On review, the
supreme court in Teague II agreed that the Syver rule
did
not apply but reversed the court of appeals and ordered the circuit
court to hold a jurisdictional allocation conference with the tribal
court judge.
The supreme court in Teague II held that the Syver
rule
did not apply because a tribal court is a court of an independent
sovereign. Under the specific circumstances, however, principles of
comity required that the state and tribal courts confer and allocate
jurisdiction between themselves, in order to avoid a race to judgment
and the inconsistent results that had occurred. Instead of the supreme
court itself applying the principles of comity underlying Wis. Stat.
section 806.245 and deciding what effect to give each judgment, the
supreme court remanded for a novel interjurisdictional
conference.12
The Wisconsin Supreme Court has no jurisdiction over tribal courts
within this state. So the court in Teague II exercised its
authority over the circuit court, and ordered it to invite the tribal
court judge to a unique meeting. At that meeting, as the supreme court
envisioned it, the two judges virtually would step back in time to the
point when they had first learned of the parties' parallel actions. The
judges would then discuss applicable comity concerns and decide which
court should have proceeded to exercise its jurisdiction and which court
should have stayed its hand. This joint meeting, dubbed a
"jurisdictional allocation conference" and now known colloquially as a
"Teague Conference," is used to assign jurisdiction between
state
and tribal courts when the parties are identical and there is issue
overlap.
Wisconsin's First Jurisdictional Allocation Conference
In general, comity is a doctrine of respect for the proceedings of
another system of government and reflects a spirit of cooperation.
Comity recognizes the sovereignty and sovereign interests of each
governmental system and its unique features. Overall, the exercise of
comity is discretionary, highly fact specific, and reviewable on appeal
under an erroneous exercise of discretion standard of review.13
In March 2001, the tribal and circuit courts and the parties from
Teague II held Wisconsin's first-ever jurisdictional allocation
conference. Before the conference, the parties had simultaneously
submitted briefs to both judges. In its briefing, the Band asked the
circuit court to reopen, pursuant to Wis. Stat. section 806.07, its
judgment approving the arbitration award. The parties also addressed a
draft proposed protocol that then was under discussion by a forum of
state, federal, and tribal judges. The draft protocol proposed certain
comity factors that should be considered at a jurisdictional allocation
conference.14
The conference was held on the record at the Ashland County
Courthouse with both judges and lawyers for each party in attendance.
Each judge explained his view of the proceedings that had transpired in
his court.15 Circuit Court Judge Gallagher
discussed the comity principles identified by the supreme court in
Teague II, as well as the principles set forth in the forum's
draft protocol and an alternative proposal submitted by the Wisconsin
Tribal Judges Association (WTJA).16 After
almost two hours of colloquy, both courts declined to reopen their
respective judgments.17
The First Tribal/State Court Jurisdictional Allocation Protocol
The Band appealed again, and this time, the court of appeals
certified the case to the supreme court. While supreme court review was
pending, Chief Judge Edward Brunner of the Tenth Judicial District
convened an ad hoc committee to develop a tribal/state protocol
governing the exercise of jurisdiction by Wisconsin state courts and
tribal courts within the district. The committee's final version
retained portions of the forum's draft proposed protocol and added other
considerations identified in the WTJA draft.18
The protocol signed by the Tenth Judicial District and four Chippewa
bands (Bad River, Lac Courte Oreilles, St. Croix, and Red Cliff) on Dec.
7, 2001, is believed to be the first of its kind in the nation.19 The protocol applies to those four tribes and to
the circuit courts of the counties within the Tenth Judicial District
(Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau
Claire, Polk, Rusk, Sawyer, St. Croix, and Washburn). The protocol does
not apply to Wisconsin's other seven tribes or to circuit courts located
elsewhere in Wisconsin. The Tenth District Protocol sets forth the
following factors to be considered in allocating jurisdiction:
- whether issues are present in the case that directly touch on or
require interpretation of a tribe's constitution, bylaws, ordinances, or
resolutions;
- whether the nature of the case involves traditional or cultural
matters of the tribe;
- whether the action is one in which the tribe is a party, or in which
tribal sovereignty, jurisdiction, or territory is an issue;
- the tribal membership status of the parties;
- where the case arose;
- if the parties have by contract chosen a forum or the law to be
applied in the event of a dispute;
- the timing of the motion to dismiss or stay, taking into account the
parties' and courts' expenditures of time and resources, and compliance
with any applicable provisions of either court's scheduling orders;
- the court in which the action can be decided most expeditiously;
and
- such other factors as may be appropriate in the particular
case.20
To prevent a deadlock such as occurred between the circuit and tribal
courts in the Teague cases, the Tenth District Protocol
provides
in section 5(c) for a mechanism to select a third judge drawn from a
standing pool of four circuit court and four tribal court judges. That
judge then is directed to sit with the two judges from the courts in
which the two actions are pending and conduct a hearing de novo, at the
close of which the three judges are to deliberate and allocate
jurisdiction on the basis of the factors listed above.
Back in Madison, and mindful of the Tenth District Protocol, a
majority of the supreme court in Teague III reversed the
circuit
court's refusal to reopen the lower court judgment. The Teague
III court clarified that when state and tribal courts exercise
concurrent jurisdiction over the parties and subject matter, and each
court knows of the other's proceedings, Wis. Stat. section 806.245 is
not yet applicable.21 Instead, at that
juncture, each court should stop its proceedings, consult with the
other, and as a matter of comity decide which court should
proceed.22
The Teague III court further instructed that when comity
principles are applied to determine whether a Wisconsin state court or a
tribal court should exercise jurisdiction, the application is weighted
toward the tribal court.23 "In the context
of state-tribal relations, principles of comity must be applied with an
understanding that the federal government is, and the state courts
should be, fostering tribal self-government and tribal
self-determination."24 This instruction
applies even when the tribal entity has waived a claim of sovereign
immunity in the state court. It may be that the supreme court
preemptively tilted the comity analysis in favor of tribal courts as a
leveling device, in light of the widely held view that Wis. Stat.
section 806.245 is not a true full faith and credit statute but instead
gives the state court a measure of discretion in recognizing tribal
court judgments.25
The Teague III majority then listed a host of relevant
factors
from various sources, including the Tenth District Protocol, noting that
the weight given each would vary from case to case:
- where the action was first filed and the extent to which the case
has proceeded in the first court;
- the parties' and courts' expenditures of time and resources in each
court and the extent to which the parties have complied with any
applicable provisions of either court's scheduling orders;
- the relative burdens on the parties, including cost, access to and
admissibility of evidence, and matters of process, practice, and
procedure, including whether the action will be decided most
expeditiously in tribal or state court;
- whether the nature of the action implicates tribal sovereignty,
including but not limited to:
- the subject matter of the litigation;
- the identities and potential immunities of the parties;
- whether the issues in the case require application and
interpretation of tribal law or state law;
- whether the case involves traditional or cultural matters of the
tribe;
- whether material events giving rise to the litigation occurred on
tribal or state land;
- the relative institutional or administrative interests of each
court;
- the tribal membership status of the parties;
- the parties' contractual choice, if any, of a forum in the event of
dispute;
- the parties' contractual choice, if any, of the law to be applied in
the event of a dispute;
- whether each court has jurisdiction over the dispute and the parties
and has determined its own jurisdiction;
- whether either court has entered a final judgment that conflicts
with another judgment that is entitled to recognition.26
With the supreme court's decision in Teague III, that
litigation came to an end, but its legacy continues to grow.
The Second Tribal/State Court Jurisdictional Allocation
Protocol
On July 28, 2005 (six months after the Teague Conference was
held in the Mohr litigation described below), the Ninth
Judicial
District and five Indian bands with reservations or property within the
district signed a tribal/state protocol on the judicial allocation of
jurisdiction. The Ninth Judicial District is made up of Florence,
Forest, Iron, Langlade, Lincoln, Marathon, Menominee, Oneida, Price,
Shawano, Taylor, and Vilas counties. The signatory tribes are the Bad
River Band, Forest County Potawatomi Community, Lac du Flambeau Band,
Sokaogon Chippewa Community (Mole Lake), and Stockbridge-Munsee Band.
The Ninth District Protocol applies when there is concurrent
jurisdiction in state and tribal court and provides for dismissal by a
court if it determines it lacks jurisdiction.27
Section 7 of the Ninth District Protocol enumerates verbatim the 13
factors Chief Justice Abrahamson listed in Teague III and
provides that these 13 factors "shall be considered in determining which
court shall exercise jurisdiction." The tie-breaking procedure is the
same as in the Tenth District Protocol.28
It should be noted that the Ninth District Protocol does not apply to
one tribe with a presence in that district, based on a federal
distinction. Public Law 280 (28 U.S.C. § 1360) gives Wisconsin
courts civil jurisdiction over matters involving Indians that arise in
Indian country. The Menominee is a non-P.L. 280 tribe _ Wisconsin's only
such tribe _ and as a result, an assertion of jurisdiction by a
Wisconsin court over a claim arising in Indian country and brought by a
non-Indian against a Menominee tribal member would infringe that tribe's
sovereignty. Accordingly, because of its status as a non-P.L. 280 tribe,
the Menominee Tribe is not a signatory to the Ninth District
Protocol.
Wisconsin's Second Jurisdictional Allocation Conference
In January 2005, a Teague Conference was held in a case
involving the Forest County Potawatomi Community ("FCPC" or the "tribe")
and James B. Mohr. In 2003 the FCPC's Executive Council, but not its
General Council, entered into a consultant contract with James B. Mohr.
The tribe's constitution provides that "[t]he governing body of the
Forest County Potawatomi Community shall be the General Council, which
shall be comprised of all qualified voters of the Community."29 The General Council elects a six-person
Executive Council,30 and "[a]ll actions of
the Executive Council are subject to review and rescission by the
General Council."31 Under the four-year
consulting contract, the tribe agreed to pay Mohr, a retired circuit
court judge, a substantial amount of money for assisting the tribe with
the development of its tribal court system, a juvenile justice action
plan, and other related programs. The contract contained a sovereign
immunity waiver and provided for arbitration in the event of a dispute.
The waiver, however, was not implemented in accordance with FCPC tribal
law, which requires that the tribe's General Council approve any waiver
of the tribe's sovereign immunity.
In January 2004, the tribe's General Council rejected the contract
with Mohr. Efforts to reach a settlement failed and on April 21, 2004,
Mohr's counsel gave notice under the parties' standstill agreement that
the voluntary stay would be terminated within 14 days, thus indicating
Mohr's intention to proceed with arbitration.
On May 6, 2004, the tribe commenced an action in the FCPC tribal
court against Mohr,32 seeking to enjoin him
from commencing or pursuing arbitration and ultimately to have the
contract declared void. Several weeks later, Mohr began his own action
against the tribe in Oneida County Circuit Court,33 in an effort to compel arbitration and challenge
the tribal court's jurisdiction to adjudicate the dispute. At the same
time, Mohr filed (but did not notice for hearing) a motion for a
conditional stay pending an interjurisdictional consultation. Counsel
for the tribe and Mohr agreed to take no further action in their
respective lawsuits so that the consultation could take place.
On July 25, 2004, Reserve Judge Thomas S. Williams, acting as an
Oneida County circuit judge, sent a letter to the FCPC tribal court
chief judge, who had recused himself and had been replaced by Judge Mark
Butterfield of the Ho-Chunk Nation Supreme Court. Judge Williams' letter
adopted the parties' joint suggestion that a Teague Conference
be
held after two rounds of briefing were completed. Counsel agreed that
both actions should be stayed in the interim. They also advised the
judges that, unlike the tie-breaking mechanism in the protocol adopted
by the Tenth Judicial District, if there was a deadlock at their
Teague Conference, the parties would then confer as to how it
should be resolved. In his initial submission to both judges, Mohr's
counsel attempted to distinguish the facts in Teague by arguing
that in Teague both the tribal court and the state court had
each
decided it had jurisdiction over the case and the parties before the
interjurisdictional dispute arose. In contrast, Mohr asserted, in his
situation part of the interjurisdictional dispute included the question
of whether each court had jurisdiction to proceed.
The Teague Conference for the litigation between the FCPC
and
Mohr was held Jan. 25, 2005. After oral argument, the proceedings were
adjourned to permit the tribal and circuit judges to deliberate, and the
proceedings then resumed on the record. First the tribal judge and then
the state court judge delivered his ruling. Both agreed that
jurisdiction should be allocated to the FCPC tribal court, although they
reached their conclusions in somewhat different ways. Judge Butterfield,
as a judge of a tribal court of a sovereign Indian nation who was not
bound by decisions of the Wisconsin Supreme Court, used the nine factors
set forth in the Aug. 3, 2004, draft protocol for the Ninth District,
which had been approved by the state court judges but had not yet been
acted on by the tribal courts in that district. The nine factors listed
in the draft protocol are the same as those in the Tenth District
Protocol. Judge Williams, on the other hand, applied the 13 factors of
Teague III. He then entered a stay of any further proceedings
in
his court.
The interesting dynamic underlying the FCPC-Mohr Teague
Conference was that it was convened in recognition of and was reinforced
by principles of comity. The FCPC-Mohr conference also was guided by the
policy articulated by both the U.S. Supreme Court and the Wisconsin
Supreme Court that promoting tribal justice systems is essential to
foster tribal self-government and self-determination. Had the circuit
court action been permitted to proceed, the tribal court would have been
divested of the right to interpret tribal laws and the right to
adjudicate challenges to its jurisdiction, both critical elements of the
right of tribal self-government. Under the federal exhaustion-of-tribal
remedies doctrine established by the U.S. Supreme Court in National
Farmers Union Insurance Cos. v. Crow Tribe of Indians,34 the tribal court must be allowed to address
questions of its own jurisdiction and fully and finally adjudicate a
dispute before the party disputing it can challenge the existence of
tribal jurisdiction as a federal question in district court. As the
Teague III court held, "general principles of comity, including
principles of abstention, must be used to resolve" conflicts between
state and tribal courts.35
Conclusion
In the future, when disputes concerning overlapping state court and
tribal court jurisdiction occur within the Ninth and Tenth Judicial
districts (other than with the Menominee Tribe, as explained above), the
parties and courts can use an agreed-on procedure to avoid the
race-to-judgment problems presented in Teague. Overlap may
occur,
for example, in divorces in which one party is a tribal member and in
commercial suits in which a tribe is a party. If parallel actions should
arise involving the nonsignatory Menominee Tribe, or with tribes located
in other judicial districts such as the Ho-Chunk Nation or Oneida Tribe,
the parties and judges or judicial officers may convene a
Teague
Conference on an ad hoc, voluntary basis, not unlike what occurred in
Mohr.
Absent a controlling protocol with a tie-breaking mechanism, there is
a risk of a deadlock between the tribal court and circuit court judges,
as occurred in the Teague cases. But the federal tribal
exhaustion doctrine, as formulated by the U.S. Supreme Court and
recognized by the Wisconsin Supreme Court in both its Teague
decisions, coupled with both courts' appreciation of comity's critical
role in resolving interjurisdictional disputes, makes deference to
proceeding in tribal court more likely.
Although the Teague decisions did not forge a hard rule that
state courts must yield to tribal courts, there certainly now is a tilt
in that direction in Wisconsin.
Endnotes
Wisconsin Lawyer