Supreme Court Adopts PERM’s Argument on Tribal Court Judgements

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

On March 5, 2003, the Minnesota Supreme Court rejected the Petition proposed by the Minnesota Tribal Court/State Court Forum requiring that state courts give recognition to and enforce tribal court judgments and orders. This proposal, known as “Full Faith and Credit” would have required any tribal court order or judgment, from the approximately 550 tribes in the United States, to be enforced by Minnesota’s state courts, unless challenged on limited grounds.
The effort to block the “Full Faith and Credit” proposal was a joint effort by PERM and tribal members who feared that this proposal would give legitimacy to tribal courts which are frequently unaccountable to their own members, and which frequently do not protect civil rights of their own members. The advocates of the Petition were a “forum” of state court and tribal court judges who had worked together for years to prepare this proposal. The Petition was also supported by the Minnesota State Bar Association and numerous other organizations.

The arguments presented by PERM and its tribal member allies include:

(a) Tribal courts are usually not established under a tribal constitution that creates a separation of powers and an independent judiciary;

(b) Tribal courts assert jurisdiction over non-members who do not have the right to participate in tribal government;

(c) Because they are frequently not independent or impartial, and because they are not a part of the constitutional structure in this country, tribal courts should not be granted legitimacy by state courts enforcing their orders;

(d) Tribal courts frequently do not maintain records that are open to review by the public;

(e) The proposed rule was overbroad and put the burden on the party challenging the tribal court order to establish that it was entered unfairly.

(f) The decision to grant “Full Faith and Credit” is properly a matter for the Legislature, not the courts, to decide.
The Supreme Court’s Order rejected the proposed Rule. The Supreme Court stated that it would consider a rule to provide a procedural framework for the recognition and enforcement of tribal court orders and judgments “where there is an existing legislative basis for doing so.” Where the Legislature first decides that enforcement of tribal court orders in state court is proper, the Supreme Court would consider a rule to implement it. In this regard, the Supreme Court indicated that emergency situations involving child protection and domestic violence might be areas where there was already a legislative basis for action.

This effort by PERM was successful because it created a coalition between PERM and tribal members who worked together to influence the decision by the Minnesota Supreme Court. Tribal members testified that tribal courts are used to deny tribal members fundamental rights, that tribal courts frequently do not protect their constitutional and other civil rights, that tribal courts are subject to the control of tribal governments and used to deny qualified persons membership, and similar abuses. These concerns by tribal members parallel the concerns of PERM that tribal courts are seeking to expand their jurisdiction over non-members and represent an effort by tribal government to expand its reach and jurisdiction over non-members and non-member lands.

The effort to secure “Full Faith and Credit” recognition was the result of years of meetings in which the public and even tribal members were sometimes excluded, where there was virtually no public visibility, and where support was elicited from organizations that did not fully understand the issues and concerns raised by tribal court operations. PERM was the only organization with sufficient resources and information to react quickly to this proposal. Were it not for PERM and the tribal members who testified against the proposal, it surely would have been adopted.

The proponents of the Petition will need to bring it to the Legislature if they desire to push for a wide-ranging proposal. The Legislature can schedule public hearings and obtain input from all parties and craft appropriate protections before tribal court orders and judgments are routinely recognized and enforced in the State of Minnesota.

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