Date of this Version
Court Review, Volume 45, Issue 1-2, 20-25
Eleven federally recognized Indian tribes are located in Wisconsin. When civil disputes arise between tribal and non-tribal members, one of the first questions is which court has jurisdiction to resolve the parties’ quarrel. It may be that both the state and tribal courts have jurisdiction, such that the next question is, which court should proceed? Over the past several years, the Wisconsin Supreme Court, using both its decision-making and rule-making powers, along with sustained, cooperative efforts of tribal and state court judges, has devised various rules and guidelines by which many interjurisdictional issues can be decided.
Decisions by the Wisconsin Supreme Court in Teague v. Bad River Band of Lake Superior Chippewa Indians resulted in jurisdictional allocation protocols for the two judicial districts where the bulk of the state’s Indian tribes are located. More recently, the state Supreme Court approved statutory guidelines for a less formal discretionary transfer of state court cases to tribal courts within Wisconsin.
Other states may wish to use one or both mechanisms for assigning or transferring jurisdiction between tribal and state courts. To better explain the Wisconsin experience and to help readers identify areas of possible jurisdictional overlap, this article first will describe some of the procedural background of Teague and of the first case to apply the Teague protocol. Then we discuss the more recent development of the discretionary transfer rule.