Response to petition for adoption of a rule of procedure for the recognition of tribal court orders and judgements

(Edited for length)

Introduction

The Indian people residing on reservations in the United States are the only United States citizens who do not receive the protections of the Bill of Rights of the United States Constitution. Tribal governments, particularly those in Minnesota, do not enjoy an independent judiciary with a constitutional basis for its independence. Instead, tribal courts are controlled by the political branches of government that created the courts and appointed the judges. Tribal members who are disfavored do not find equal justice, and tribal courts are seeking to expand judicial jurisdiction over non-members who cannot participate in tribal government. Until there is reformation within tribal government, and until tribal government limits its jurisdiction to those persons who can participate in tribal government, the Minnesota Supreme Court must reject the Petition for full faith and credit to avoid giving legitimacy to a flawed and constitutionally defective tribal court system.

In the Supreme Court’s most recent Indian law decision, Nevada v. Hicks, 533 U.S. 353 (2001), Justice Souter’s separate opinion points out some very sobering facts about the differences between Indian tribunals and traditional American courts:

“To start with the most obvious [difference], it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes. . . although the Indian Civil Rights Act of 1968 (ICRA) makes a handful of analogous safeguards enforceable in tribal courts, 25 U.S.C. 1302, the guaranties are not identical, Oliphant v. Suquamish Indian Tribe, 435 U.S. 191,194 (1978), and there is a definite trend by tribal courts toward the view that they ha[ve] leeway in interpreting the ICRA’s due process and equal protection clauses and need not follow the U.S. Supreme Court precedents jot-four-jot. . . . In any event, a presumption against tribal-court civil jurisdiction squares with one of the principal policy considerations underlying Oliphant, namely, an overriding concern that citizens who are not tribal members be protected from unwarranted intrusions on their personal liberty, 435 U.S. at 210.

Despite these problems, the Minnesota Supreme Court is being asked to adopt a rule that would make tribal orders and judgments enforceable by Minnesota’s courts.

A flawed and closed process led to the petition presented to the court

From the beginning, the Tribal Court-State Court Forum encountered significant problems. When meetings were held on tribal lands, the press and others who wished to participate were excluded. The “compromise” reached provided that meetings would be open to all when held on state lands, but that it was up to the tribe to decide whether these meetings were open when the meetings were held on tribal lands.
Counsel for the Respondents, Mr. Randy Thompson, who has practiced for over a decade in the Indian law area representing both non-members and members in their issues with tribal government, attended the Forum meetings at Mille Lacs in May, 2000 and at Red Lake in September, 2000. At the September conference, Mr. Thompson raised serious questions about the appropriateness of granting full faith and credit to the tribal court orders.
Mr. Thompson was prepared to attend the next meeting, scheduled for December 8, 2000 at the Minnesota Judicial Center, but it was cancelled. By letter dated December 13, 2000, he asked to be notified of future Tribal Court-State Court Forum meetings and followed up with subsequent phone calls. Despite the fact that he was never notified of any future meetings, this Petition is now presented to the Supreme Court as a “unanimous” and non-controversial proposal resulting from regular quarterly meetings. It seems more than curious that an experienced and informed attorney who raised questions about the full faith and credit proposal would be excluded from future meetings. This petition has resulted from a flawed process, one in which both the public and those who ask difficult question were excluded from meaningful participation.

Fundamental constitutional problems in the structure and functioning of tribal courts mandate against full faith and credit recognition

A. There is no constitutional basis for the creation of most tribal courts.

Despite suggestions in the Petition to the contrary, the constitutions of most Ojibwe bands do not provide a basis for the creation of tribal courts. The Bands argue that the courts were created under their “inherent powers”. The problem with this argument is that, without a constitutional basis for the creation of a court, there is no independent judiciary. The Fifth Circuit Court of Appeals recently ruled in Comstock Oil & Gas Inc. v. Alabama and Coushatta Indian Tribes of Texas, 261 F.3d 567 (5th Cir. 2001), cert. denied, 122 S.Ct. 1438 (2002) that when “the Tribe’s constitution and bylaws, as amended. . . contained no provisions for the creation of a judiciary,” the effort to create a tribal court through the adoption of a tribal judicial code was “impermissibl[e].” 261 F.3d at 572. The Fifth Circuit went on to hold that “no tribal court properly existed” under these circumstances. Id.
The Petition ignores this precedent and asks this Court to grant full faith and credit to any and all tribal court judgments regardless of whether there is a constitutional basis for the creation of those tribal courts. We submit that most, if not all, tribal courts in Minnesota share this fundamental defect.

B. There is no separation of powers in tribal courts and no independent judiciary.

Given that there is no constitutional basis for the creation of most tribal courts, the tribal courts that exist are subject to the control of the tribal council that passed the laws that created the courts. This same tribal council also appointed the judges to those courts. A careful examination of this situation will reveal that the same handful of tribal lawyers who represent the tribes sit as judges in each other’s courts. The result is a predictable effort to advance a tribe’s political agenda, with non-members and disfavored members subject to unequal justice because the tribal judges are not truly independent.
A few cases will demonstrate this fact. In Grand Portage Band of Chippewa v. Melby, the Grand Portage Band sought to assert zoning jurisdiction over a non-member who was operating a marina on privately owned land within the claimed exterior boundaries of the Grand Portage Reservation. The Grand Portage Band passed an ordinance (after Mr. Melby had obtained his County building permit) that required him to obtain a zoning permit from the Grand Portage Band. When the non-member refused to recognize the tribe’s authority, the Grand Portage Band literally created a tribal court in which it filed its first suit against Mr. Melby to assert its jurisdiction over him. The tribal council that authorized the litigation and created the tribal court also handpicked its trial court judge, Anita Fineday, to hear the case. When Mr. Melby appealed the predictable result to the Grand Portage Court of Appeals, a previously named party to the lawsuit now sat on the tribal council, and participated in picking the judges to hear the appeal. When your opponent gets to select the judges, there is, at least, a question about the appearance of fairness. The predictable result was that Mr. Melby lost at the Grand Portage Court of Appeals, and then proceeded to Federal Court to contest tribal court jurisdiction. At this juncture the case settled with the Band buying Mr. Melby’s land, but not without Mr. Melby spending a substantial amount of money in legal fees. Six months after the case settled, the Supreme Court’s decision in Atkinson Trading v. Shirley, 532 U.S. 645 (2001) reversed virtually every misguided assertion by the Grand Portage Court of Appeals in its effort to have jurisdiction over Mr. Melby. Nevertheless, the full faith and credit proposal would have made this
decision by the Grand Portage Band’s handpicked and specially created court enforceable in Minnesota.
The case of Penn v. United States also demonstrates the flawed tribal court system. Margaret Penn, a non-member of the Standing Rock Sioux Tribe, filed a lawsuit against the tribe for wrongful termination from her job as chief prosecutor. In order to get rid of Margaret Penn, an ex parte order was issued by the Standing Rock Sioux Tribal Court banishing her from the Standing Rock Sioux Reservation. She was then removed, under threat of arrest, from both her job (the battered women’s shelter) located on privately owned land, as well as from the home she rented from a non-Indian rancher that was on privately owned land. She was even prevented from being on the state highways that cross the Standing Rock Reservation. Although the actions of this tribe seem outrageous, this Petition would recognize and give full faith and credit to all decisions of the Standing Rock Sioux Tribe.

C. There is no guarantee of basic rights.

Because the Bill of Rights is not applied to tribal governments, Indian people and others are unprotected by the Bill of Rights in their dealings with tribal governments. Although Congress passed the Indian Civil Rights Act (“ICRA”), the Supreme Court held that the ICRA can only be enforced in tribal court—the result being that the challenged tribal government controls the court that decides if civil rights were violated. In short, the ICRA has been a terrible failure.

D. There is no judicial oversight, accountability, or review process and the result is disuniformity.

Because tribal courts operate independently of the structure of the state and federal courts, no appeal process exists to assure uniformity of decisions, and without this accountability and appeals process, injustices go unchecked.

E. Tribal courts are a political effort to assert jurisdiction over non-members.

Many tribal governments are using the tribal court system to gain power over non-members by claiming to have jurisdiction over them. But we need to remember that unlike State and Federal courts, which are open to all people regardless of race, tribal courts are only open to members of the tribe. Since tribal courts are unwilling to limit their judicial jurisdiction only to the members of the tribe, full faith and credit cannot and should not be granted until these jurisdictional disputes are resolved. There is no reason why the state courts cannot be utilized to decide disputes between members and non-members, when both are citizens of the State of Minnesota.

F. The elimination of most Ojibwe Reservations.

Tribal courts assert jurisdiction over all persons residing within the boundaries of the “reservation”. However, under the 1889 Nelson Act, the Chippewa Bands agreed to sell, cede, and relinquish all right, title, and interest in and to all of the reservations in Minnesota except Red Lake and White Earth. Nevertheless, the Bands residing in these former reservations, including the Leech Lake Band, the Fond du Lac Band, the Grand Portage Band, and the Mille Lacs Band, assert jurisdiction over the entire original reservation and, in the materials accompanying this Petition, claim “broad civil jurisdiction” over all persons within those boundaries.

The reality is that former reservations are more precisely checkerboards of land, owned in varying amounts by Indians and non-Indians. Nationwide, in 1990, nearly one-half of reservation residents were non-Indians. See Bureau of Census, U.S. Department of Commerce, 1990 Census of Population, Social and Economic Characteristics, American Indian and Alaska Native Areas 3 (1990). With this checkerboard of ownership and tribal membership, there are fundamental and important policy questions that must be considered before this Court grants full faith and credit to the decisions of tribal courts.

The proposal in the petition itself is flawed in its design and burdens.

Most states have dealt with full faith and credit issues through the legislative process. Minnesota has a different status from other states because of Public Law 280. Adopted in 1953 (67 Stat. 588, codified as amended at 18 U.S.C. §1162, 25 U.S.C. §§1321-26, 28 U.S.C. §1316), Public Law 280 granted criminal and civil jurisdiction over Indian reservation lands to state governments in five states, including Minnesota. The other states were California, Nebraska, Oregon and Wisconsin. The United States Supreme Court has recently held that, even in the absence of Public Law 280:

“Our cases make clear that the Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation’s border. Though tribes are often referred to as sovereign entities, it was long ago that the Court departed from Chief Justice Marshall’s view that the laws of [a State] can have no force within reservation boundaries. . . . Ordinarily, it is now clear, an Indian reservation is considered part of the territory of the state.” Nevada v. Hicks, 533 U.S. at 361-362 [citations omitted].

Given that the State of Minnesota has criminal jurisdiction over all reservations except Red Lake, and extensive civil jurisdiction under both Public Law 280 and its inherent jurisdictional powers as a result of the Supreme Court’s decision in Nevada v. Hicks, there is no reason for Minnesota to consider a rule that would grant full faith and credit to tribal court decisions except those decisions between tribal members. This would eliminate many of the jurisdictional problems that are created when parties do not know whether or not the state courts are open to hearing their disputes, since it is clear that the state courts have extensive jurisdiction for all of Minnesota’s citizens and throughout its entire borders.

As the Petition admits, tribal courts are issuing decisions that concern Minnesota citizens. That is the unique province of the Minnesota state courts, which are open to participation by all citizens. If the Minnesota State Supreme Court is going to consider granting full faith and credit to tribal court decisions, then there is a constitutional mandate to assure that the Constitution of the State of Minnesota and the protections offered by Minnesota’s judicial system are in place to govern those decisions. Tribal court judges and tribal court attorneys must meet the qualifications to practice mandated by the State of Minnesota. Tribal court attorneys must be subject to Minnesota’s Code of Professional Responsibility and oversight by the Board of Professional Responsibility. Tribal court judges must similarly be bound by the Code of Judicial Ethics and be subject to oversight by the Minnesota Supreme Court and its agencies. These are steps that have been taken by the Minnesota Supreme Court to assure that the protections in the Minnesota and United States Constitution are applied to the judicial process, and that citizens are not denied the fundamental rights of due process and equal protection. Tribal courts must assure that people within its jurisdiction are given at least those constitutional protections accorded to Minnesota citizens under the Constitution of the State of Minnesota. And if the tribal court is going to apply Minnesota law to Minnesota citizens, then tribal court judges must swear to uphold and defend the Constitution of the State of Minnesota.

To assure that all of these processes are carried out, any discussion of full faith and credit must contain a provision that allows tribal court decisions to be reviewed by the Minnesota Supreme Court to assure that state law is uniformly applied and the constitutional protections are carried out in a uniform manner. Petitioners will vehemently object that this is contrary to the sovereignty rights of the tribal courts. But as the Petition admits, the Indian people in Minnesota are interwoven into the fabric of all of the people of Minnesota, and all of Minnesota’s political and judicial processes. To give recognition to tribal court decisions that are not subject to review by the state or federal courts would be a grave mistake, because it is creating the opportunity for far greater disharmony and confusion than exists today. Respondents submit that the Supreme Court has a constitutional obligation to assure that all courts in Minnesota that seek validity under the auspices of this Court’s rulemaking meet the standards for minimal constitutional protection.

Conclusion

Based upon all of the above, the Respondents respectfully request that the Minnesota State Supreme Court reject the Petition as the result of a flawed process that excluded the public and voices that questioned full faith and credit. Instead, the Court should refer the matter to the Minnesota Legislature for appropriate hearings and legislative action.