31 William Mitchell Law Review 479 (2004-2005)
Tribal court dockets across the country have been growing steadily, and tribal courts are becoming an important part of the judicial fabric of the United States. To acknowledge this reality, state courts and legislatures across the United States have begun to address the important issues of how and whether to recognize tribal court judgments in state courts. The Minnesota Supreme Court adopted a rule that took effect in January of 2004 that provides guidelines for the recognition and enforcement of tribal court orders and judgments. The Minnesota Supreme Court Rule on the Recognition and Enforcement of Tribal Court Orders and Judgments (“Minnesota Rule”) followed closely on the heels of a similar rule by the Arizona Supreme Court. Though the Minnesota and Arizona rules are close in time, they staked out quite different approaches. The Arizona Supreme Court Rules of Procedure for the Recognition of Tribal Court Civil Judgments (“Arizona Rules”) reflect tremendous respect for tribal courts and provide clear guidance to lower state court judges as to how to handle tribal court judgments. The Minnesota Rule, in contrast, adopts a much more tentative stance toward tribal court orders and judgments and provides little or no guidance to state court judges as to whether to recognize a tribal judgment. All of the recent activity in state courts and legislatures, together with the important policy issues underlying these questions, has fueled voluminous academic commentary. The academic literature includes several articles that fill a useful niche in describing the development of the law in the specific context of rules for the recognition of tribal court judgments. This article seeks to add to the existing scholarship within that niche by describing the development of the Arizona and Minnesota rules. In addition, it seeks to offer a substantive critique of the Minnesota Rule and some suggestions as to the broader lessons that can be learned from the process. This article will critically evaluate the Minnesota Rule by comparing and contrasting its development, as well as its substantive content, with the new Arizona Rules. Part II of this article will describe the Minnesota Rule and compare it to the Arizona Rules that shortly preceded it. Part III will describe the rulemaking processes that produced the Minnesota and Arizona Rules and seek to provide insight into how Minnesota reached such a markedly different result than Arizona. Part III will also mine the insights from these processes and from other sources to offer some explanation as to why the Arizona Supreme Court embraced tribal courts respectfully while the Minnesota Supreme Court addressed tribal courts cautiously. Part IV will conclude by encouraging the Minnesota Supreme Court to view its new rule as a cautious first step and urging the court to consider a re-examination of the question after appropriate experience has developed from which to evaluate the current rule.
Washburn, Kevin K. and Thompson, Chloe
"A Legacy of Public Law 280: Comparing and Contrasting Minnesota’s New Rule for the Recognition of Tribal Court Judgments with the Recent Arizona Rule,"
William Mitchell Law Review: Vol. 31
, Article 5.
Available at: http://open.mitchellhamline.edu/wmlr/vol31/iss2/5