Minnesota Supreme Court Advisory Committee’s Recommendation on Tribal Court Full Faith & Credit

by Randy V. Thompson
Attorney at Law
Nolan, MacGregor & Thompson

About five years ago, a committee comprised of state court judges and tribal court judges began meeting in a "Forum" to discuss various issues. High on the agenda of the tribal court judges was adoption of a state court rule that would require state court judges to enforce tribal court orders and judgments just the same as a state court order. The legal term is that tribal courts wanted their orders to be given "full faith and credit" in state courts, just as the State of Minnesota recognizes the judgments of other states. The proposal would have made the judgments and orders of all 550 tribes enforceable by Minnesota courts.

The problem with that approach is that unlike the state courts, which were created pursuant to the Federal and State Constitutions, tribal courts are not subject to those constitutions nor are they created by a government in which all citizens can participate regardless of race. Even more disturbing, tribal courts are not even created according to tribal constitutions in Minnesota, meaning that there is no separation of powers within tribal government. Separation of power ensures that the judicial branch of government is not subject to control and direction by the political branches of government. The record of tribal courts is equally disturbing, with tribal courts being used to exert political jurisdiction and power over non-members. Even tribal members complain that tribal courts are unfair, do not hold hearings, refuse to hear cases they do not want to hear, and otherwise provide uneven injustice. Given the mess of tribal courts in Minnesota, the full faith and credit proposal should have been dead on arrival except for the legitimacy created by the State Court/Tribal Court Forum.

The State Court/Tribal Court Forum was the creation of a former Minnesota Supreme Court Justice who viewed it as a way to give equal recognition to tribal government. Unfortunately, when the issues of a lack of separation of powers, the poor record of justice in tribal courts, the lack of jurisdiction by tribal courts over non-members and the lack of jurisdiction by tribal courts over non-member private lands are raised, those politically sympathetic to Indian tribal governments sweep aside those concerns in the interest of advancing tribal sovereignty. That approach elevates the rights and interests of tribal government over the rights and interests of United States citizens who are not tribal members. Tribal sovereignty is too often used to advance the interests of tribal governments over the constitutional rights and interests of tribal members themselves. PERM supports the principle that the interests of government are not paramount over the constitutional and property rights of the citizen, unless the government acts pursuant to the United States Constitution. Tribal government seeks the power of state and federal governments, but not the limitations that come with constitutional requirements.

Over a two year period, PERM retained me to keep track of the meetings of the State Court/Tribal Court Forum in order to participate in their meetings whenever possible, raise the issues that were not being discussed, and be prepared to act if steps were taken. Unfortunately, even though I had asked to be notified of meetings by the Supreme Court Coordinator who was sending out notices for the State Court/Tribal Court Forum, we learned in May, 2002, one day before a hearing by the Supreme Court Advisory Committee, that the State Court/Tribal Court Forum would be presenting a proposal to the Supreme Court to adopt a rule on full faith and credit. With the backing and assistance of PERM, we scrambled over the next 24 hours to put together affidavits in opposition to this effort as well as draft a brief opposing the position. We brought in tribal members who had been mistreated by tribal court decisions to appear at the Committee hearing.

Except for PERM’s effort, the "full faith and credit" agenda would have gone though the Supreme Court Advisory Committee unopposed. Because of our effort, however, the Supreme Court’s Advisory Committee decided that additional hearings were required. At the second hearing, Bill Lawrence, a member of the Red Lake Band and the publisher of the Native American Press, testified against the full faith and credit proposal, citing the long history of failings by tribal courts, their unfair practices, and at one point describing tribal courts as "a joke". Mr. Lawrence pointed out what we had pointed out, which was that the attorney representing tribe A sits as the tribal judge for tribe B, and vice versa. In that way, each advances their common political agenda and each protects the interests of a tribal leadership seeking to maintain its political power and agenda. At the second hearing, Indian people who had been wrongfully denied tribal membership by tribal courts testified against full faith and credit. By forcing this delay and additional hearing, we also created an opportunity for other groups, including the Sheriffs’ Association and the Association of Minnesota’s County Attorneys, to submit letters in opposition to full faith and credit. The tide was beginning to change.

At a hearing before the Supreme Court’s Advisory Committee on the General Rules of Practice held on August 14, 2002, we were successful in completely blocking the full faith and credit proposal. The Committee recommended unanimously against adoption of the rule proposed. Among the reasons cited by the Committee included the fact that there had been inadequate public hearings, that this was a policy decision more appropriately heard by the Legislature, and that the proposed rule was overbroad and with consequences that were not foreseeable. These were among the reasons that we had proposed the full faith and credit rule.
There were glum faces indeed among the members of the State Court/Tribal Court Forum as the Rules Committee stated its recommendation. This was an important victory for PERM and Indian people who live and deal with tribal courts on a regular basis. By blocking adoption of this rule, we prevented non-members from being sued by someone in tribal court, and then taking that tribal court judgment to state court and enforcing it against an individual, his land or his other property.

We do not expect that the State Court/Tribal Court Forum will stop their effort, but we have obtained an important first victory. The Supreme Court itself is scheduled to take up the recommendation of the Rules Committee in mid-October, and PERM will continue to monitor the issue. PERM was the only organization in Minnesota that was keeping an eye on this Cause for Concern about Mille Lacs Reservation