In Minnesota, there are eleven recognized tribes which include: (1) Bois Forte Band of Chippewa; (2) Fond Du Lac Band of Chippewa; (3) Grand Portage Band of Chippewa; (4) Leech Lake Band of Ojibwe; (5) Mille Lacs Band of Ojibwe; (6) Red Lake Nation of Chippewa; (7) White Earth Band of Ojibwe; (8) Lower Sioux Community; (9) Prairie Island Indian Community; (10) Shakopee Mdewakanton Sioux Community; (11) Upper Sioux Community.
Authority forTribal Courts
In 1953, Congress enacted Public Law 83-280 conferring jurisdiction over most criminal and civil actions arising in Indian country to the courts in five particular states including Minnesota with the exception of the Red Lake Indian reservation. Federal laws enacted after 1953, including the Indian Child Welfare Act (ICWA), and the Indian Civil Rights Act (ICRA), permitted tribal courts to exercise substantial jurisdiction both inside and outside Indian country. The expansion and exercise of tribal jurisdiction depended upon the existence of credible tribal dispute resolution forums. As a result, there was a strong impetus for the recognized tribes to establish their own judicial systems.
A direct consequence is that, presently, most tribes have established court systems where appointed Judges preside over legal disputes covered under the Tribal Code.
Creation of Tribal Code
. Since each tribe is sovereign, they may enact their own laws, and procedural court rules. By the same token, the tribe may determine what types of cases its courts will hear and what types they will not hear. Often, tribal courts resolve matters related to juvenile law, civil disputes, criminal law (for tribal members only) and family law. The laws are enacted by a tribal counsel. Generally, those laws and ordinances are in codified form and set forth in a Tribal Code. Often, the codes and procedural rules enacted by a tribe are similar to existing state laws with some variations.
The Trial Court interprets the laws and ordinances passed by the Tribal Council. Tribes may also decide over what issues it wishes to have jurisdiction. Many tribes have enacted family law statutes. A tribal court may have jurisdiction over a divorce or custody proceeding if one of the parties is a resident member of that tribe and that party meets jurisdictional requirement set up by the tribal code. In many instances, the tribal code will require that the party have residency on tribal land for a certain period of time before jurisdictional requirements are met. Where one party is a resident member of the tribe and the other party is not, there may be concurrent jurisdiction between the state and the tribal court. In such an instance, the divorce or custody proceeding may be filed in either state court or tribal court often resulting in a race to file between parties in order to choose a particular jurisdiction.
Changing Courts- State v. Tribal Court
A Motion may always be brought in either state court or tribal court to deny jurisdiction and shift the proceeding to a more desirable forum. Such a Motion is called a Motion for forum non conveniens. In deciding such a motion, a court may consider the following factors: (1) The relative ease of access to sources of proof; (2) availability of compulsory process for attendance of unwilling, and the cost of obtaining will, witnesses; and (3) all other practical problems that make trial of a case easy, expeditious and inexpensive.
Enforceability of Orders Between State and Tribal Court
Although tribal court orders are not given "full faith and credit" which would make them automatically enforceable, orders entered by a tribal court are generally enforced. Minnesota's General Rules of Practice for District Court promulgated by Minnesota's Supreme Court includes language in that regard. Rule 10.01 states "Where mandated by state or federal statute, orders, judgments, and other judicial acts of the tribal courts of any federally recognized Indian tribe shall be recognized and enforced." Rule 10.02 also indicates that recognition is discretionary under certain circumstances
Attorneys in Tribal Court
Since each tribe has sovereign authority, each may also determine who is admitted to practice within its court system. In most instances, attorneys may appear on behalf of any party in any proceeding before the court, provided they are licensed to practice by the tribal court. A license to practice is usually issued by the Tribal Court upon filing with the Court Administrator an affidavit attesting that the applicant is licensed to practice law and that the attorney has read and understands the tribes Constitution, codes and procedures.
Tribal Court Author
Maury D. Beaulier is family law lawyer who has developed an expertise in the tribal courts throughout Minnesota. Admitted to practice in a number of Minnesota tribal courts, he regularly represents tribal members and non-tribal members in family law matters such as divorce, custody, adoption, child abuse and neglect, and paternity. For a consultation visit divorceprofessionals.com or call 612.240.8005.
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