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Comity rule for tribal court orders nears finish line

George Soule

George Soule

A proposed rule that requires Minnesota district courts to enforce tribal court orders appears to be nearly a reality. The Minnesota Supreme Court heard from the Supreme Court Advisory Committee on General Rules of Practice and others on Wednesday, March 14, but heard no opposition.

The proposed Rule 10 of the General Rules of Practice for the District Courts requires district courts to recognize and enforce an order or judgment of a tribal court unless a party opposing enforcement demonstrates that there is one of six enumerated flaws in the order. It’s not called a presumption and it’s not called full faith and credit, but it comes very close.

It is the result of a long process between the Minnesota Tribal Court/State Court Forum to foster a productive relationship between the two court systems. Eleven federally recognized Indian tribes and bands in Minnesota operate 13 courts of varying jurisdiction.

“Given the strides tribal courts have made since 2003 and the evolving relationship between tribal and state courts, now is the time for this Court to revisit Rule 10,” the forum’s petition states. Its proposal was to simplify the rule to ensure greater consistency in implementation.

The rules committee met four times in 2017 to discuss the proposed rules, eventually recommending an amendment substantially as advanced by the forum, which it ultimately approved in 2017 by a vote of 11-2.

The situation is very different from that in 2002 when the general rules committee voted against a petition from the forum to extend full faith and credit to tribal court orders. At that time, some of the evidence presented to the committee was critical of the processes followed in some tribal courts. What some saw as the substantive, rather than procedural, nature of the rule meant that the issue belonged in the Legislature.

Former Minnesota Supreme Court Justice Edward C. Stringer, who was chair of the committee when the report was issued, said that enforcement of tribal court orders “is a matter of substantive law that should go to the Legislature or to the courts on a case-by-case basis.”

Tribal court process given weight

“The proceedings in the tribal court should be respected in the District Court,” Judge Mary Vasaly, a member of the committee, told the court. The proposed rule is a rule of comity that recognizes that there has been a full and fair process in the tribal court.

The rule also carves out commitment proceedings in a separate section, Rule 10.02, and also refers to other federal statutes in Rule 10.01. Other proceedings fall under Rule 10.03. Chief Justice Lorie Gildea wondered how many cases were left to be handled under that rule. Reporter David Herr told the court that there are a “host” of orders that could fall within Rule 10.03.

“No matter what kind of order, a case that has been fully litigated should be respected in the District Court,” Vasaly asserted. The rule puts the burden on a person challenging the tribal court rule, which is intended to recognize that there has been a process in the tribal courts that should be given weight, Vasaly said.

Functioning at a very high level

The time is now right for the rule because the tribal courts have gained experience and wisdom since this process began in 2002, George Soule told the court, a tribal appellate court judge for four tribes. He acknowledged that in 2002 there was apprehension about the quality of tribal court proceedings.

“I’m one of the people who was here 16 years ago in round one with respect to enforcement of tribal court orders and I’m back today in enthusiastic support of the proposed amendments. There’s been a lot of progress since 2002. A state court judge has become a tribal judge and a tribal judge has become a state court district judge. There is no anecdotal evidence in the record that the tribal courts are not functioning at a very high level, in contrast to 2002,” Soule said.

Judge John Smith, retired from the Court of Appeals and the 9th Judicial District, told the Supreme Court that tribal courts have changed dramatically because the courts have more funding. In written comments he said, “Evidence shows that tribal courts have access to greater funding, both from their governments and the federal government. One of the many benefits of this increased funding is that tribal courts are better staffed, and so they operate with a high level of efficiency. And, in my experience, tribal courts operate with significant independence, similar to state court judges.”

Chief Judge Sally Tarnowski of the 6th Judicial District presides over an Indian Child Welfare Act court that she says has great respect in the nation. There has been a tremendous improvement in the way ICWA cases are conducted, she said. When she sends a case to tribal court she is confident it will be handled as well as in state court, Tarnowski said. “I have no qualms about sending cases to tribal court,” she told the Supreme Court.

There’s been significant discussion in Indian Country about the rule change and it has been vetted, Soule said. “There was no organized opposition anywhere,” he said.

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About Barbara L. Jones

One comment

  1. “Where is the proclamation ratified by the voters to amend the U.S. Constitution to make the health, welfare, safety, benefits, and capacities of a select group of U.S./state citizens distinguishable because of their “Indian ancestry/race?”

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