Sign In
    Wisconsin Lawyer
    June 01, 2006

    Surveying the Boundaries: State and tribal Court Jurisdiction

    Read how disputes concerning overlapping state court and tribal court jurisdiction occurring in the Ninth and Tenth Judicial districts can be resolved using an agreed on procedure.

    Beth Ermatinger Hanan; William H. Levit Jr.

    Wisconsin LawyerWisconsin 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.

    man looking through a  telescopeby Beth Ermatinger Hanan & William H. Levit Jr.

    Eleven 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

    Beth Ermatinger Hanan William H. Levit Jr.

    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


    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.


    1Teague II, 2000 WI 79, ¶ 2, 236 Wis. 2d 384, 612 N.W.2d 709.

    2Id. ¶ 6.

    3Id. ¶ 7.

    4Id. ¶ 8.

    5Id. ¶ 9.

    6Id. ¶ 10.

    7Id. ¶ 11.

    8Syver v. Hahn, 6 Wis. 2d 154, 94 N.W.2d 161 (1959).

    9Teague II, 2000 WI 79, ¶¶ 13-14, 236 Wis. 2d 384.

    10Id. ¶ 15.

    11Id. ¶ 2. The court of appeals decision, 229 Wis. 2d 581, 593-94, 599 N.W.2d 911 (Ct. App. 1999), is referred to as Teague I.

    12Id. ¶ 2.

    13Teague III, 2003 WI 118, ¶ 69, 265 Wis. 2d 64, 665 N.W.2d 899.

    14See id. ¶¶ 5, 92.

    15See id. ¶ 91 (Wilcox, J., dissenting).

    16See id. ¶¶ 5, 92.

    17Teague III, 2003 WI 118, 265 Wis. 2d 64.

    18See id. ¶ 5.

    19Historic State Court-Tribal Court Agreement to be Signed at Bad River Reservation.

    20See id.

    21Teague III, 2003 WI 118, ¶ 58, 265 Wis. 2d 64.


    23Id. ¶ 79 ("The principles of comity applicable to state court-tribal court relations are built upon the goal of fostering tribal self-government through recognition of tribal justice mechanisms. Consequently, the significance of the plaintiff's choice of a forum and the application and interpretation of state law are outweighed by the fact that the litigation involves tribal sovereignty and the interpretation of tribal law, and that the material events occurred on tribal land." Even when a circuit court had "conducted significant proceedings before the tribal court even began to hear the case is outweighed by the tribal court's institutional interest in determining the validity of contracts made with the tribe.")

    24Id. ¶ 70.

    25See Teague II, 2000 WI 79, ¶ 6, 236 Wis. 2d 384, and Teague III, 2003 WI 118, ¶ 93, 265 Wis. 2d 64 (Wilcox, J., dissenting). See also Teague III, 2003 WI 118, ¶ 82 n.39, 265 Wis. 2d 64; id. ¶¶ 117-28 (Prosser, J., dissenting) (tracing legislative history of Wis. Stat. section 806.245 and concluding the legislature did not intend to grant the equivalent of constitutional full faith and credit to judgments of developing tribal courts).

    26Teague III, 2003 WI 118, ¶ 71 & n.38.

    27Copies of the Ninth District Protocol may be obtained from the district court administrator, Scott Johnson, (715) 842-3872, 2100 Stewart Ave., Suite 310, Wausau, WI 54403.


    29Art. III, Section One, Constitution of the Forest County Potawatomi Community, Wisconsin.

    30Id. at Section Six.

    31Art. V, Section Two.

    32Case No. 04-CV-27. Forest County Potawatomi Community v. James B. Mohr.

    33Case No. 04-CV-152, Mohr v. Forest County Potawatomi Community.

    34National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985).

    35Teague III, 2003 WI 118, ¶ 66, 265 Wis. 2d 64.

Join the conversation! Log in to comment.

News & Pubs Search

Format: MM/DD/YYYY