PERM challenges effort to make tribal court judgements enforceable in State courts

By Randy V. Thompson
Attorney at Law
Stapleton, Nolan, MacGregor & Thompson

Two years ago, PERM hired me to investigate and participate in a series of meeting that were being held between state court judges and tribal court judges for the purpose of requiring the state courts to give recognition to and enforce tribal court judgments and orders. Known as “Full Faith and Credit”, the proposal would allow for enforcement through the state courts of any judgment or order obtained in tribal court, unless challenged in state court on limited grounds.

I participated in meetings held in May and September, 2000, and asked to be notified of future meetings. On May 21, 2002 we were surprised to learn that a petition was being presented the next day by the state court/tribal court judges to a rulemaking committee of the Minnesota Supreme Court to adopt a rule giving full faith and credit to tribal court orders. We scrambled over the next 24 hours to put together a legal brief and affidavits in opposition to the proposed rule.

The arguments we presented were: (a) tribal courts are not established under a constitution which creates a separation of powers and an independent judiciary; (b) tribal courts are asserting jurisdiction over non-members who do not have the right to participate in tribal government; and (c) tribal courts, because they are not independent, impartial, open to all persons, and part of the constitutional structure of this country, should not be granted legitimacy by state courts enforcing their orders. Additionally, the proposed rule would put the burden on the party challenging the tribal court order to establish that it was entered unfairly. Because we believe that any decision to grant full faith and credit is properly a matter for the Legislature, not the courts, to decide, we have asked that the Supreme Court reject the rule in its entirety.

The effort to gain full faith and credit recognition for tribal court orders is part of the ongoing agenda by tribal governments to expand their jurisdiction and power over their “territories” and “all persons residing within their territories”. For example, the materials submitted in support of the Petition state that the tribal courts claim “broad civil jurisdiction” within the “reservations”. Whether most of the Ojibwe reservations even exist is a matter of ongoing legal dispute.

The May 22, 2002 hearing before the Rules Committee was the first step in a process that could result in additional hearings before the Supreme Court if the Committee makes a recommendation that the rule be adopted by the Supreme Court. PERM is the only Minnesota non-profit corporation who has been monitoring and acting to protect the interests of citizens who might find themselves in tribal courts. The brief that follows is a condensed version of the Response to the Petition submitted to the Minnesota Supreme Court. PERM will continue to be involved in this process as it seeks to protect the rights of both Indians and non-Indians from a constitutionally defective tribal court system.