Tribes testify in support of Assembly Bill 114
By Marlon WhiteEagle
On Thursday, June 1, a few tribes testified in support of Assembly Bill 114, which would add criminal penalties for battery of tribal judges, prosecutors, and law enforcement, before the Committee on Criminal Justice and Public Safety at the Wisconsin State Capitol in Madison.
Tribal officials from the Ho-Chunk Nation, Lac Courte Oreilles Ojibwa, and Oneida Nation gave testimony before Chairman John Spiros (R-Marshfield) and the other committee members.
The bill was introduced by Rep. Jeff Mursau (R-Crivitz), the chairperson of a State and Tribal Relations Committee that a state statue directs the Joint Legislative Council to create.
“It’s a pretty straight forward bill. It is often the case that when a bill is being draft or introduced, that they don’t contain language that explicitly includes the tribes living in Wisconsin. It isn’t intentional, but it is important that we extend the same opportunities and protections given to Wisconsin citizens to members of our tribes,” Rep. Mursau said.
“Under current law, it is a Class H felony to intentionally cause, or threaten to cause, bodily harm to a judge, prosecutor, law enforcement officer, or a member of their family if the actor knows that person is a judge, prosecutor, or law enforcement officer and the act or threat is made in response to an action taken by the judge, prosecutor, or law enforcement officer in official capacity.
“Assembly Bill 114 adds tribal judge, tribal prosecutor, and tribal law enforcement officer to the definition of judge, prosecutor, and law enforcement officer for the purpose of this crime. On behalf of the State Tribal Relations Committee, I’d appreciate the committee’s support on this bill.”
Legislative Counsel David Moore added legal comments to the bill’s introduction.
“The state has criminal jurisdiction over most of the tribes in Wisconsin. Ten of the eleven; it’s a little complicated with Menominee, but the state has jurisdiction to prosecute crimes on the reservation against anyone. If someone committed this crime, then it would be the county’s district attorney who could prosecute that,” Legislative Counsel David Moore said.
Ho-Chunk Nation Attorney General Amanda WhiteEagle is a 2005 graduate of the Wisconsin Law School. The Ho-Chunk Nation Legislature nominated and confirmed WhiteEagle in 2006, 2009, and 2012 as an Associate Judge in the Ho-Chunk Nation Trial Court. She became the Attorney General in 2015.
“I wanted to ensure that the Ho-Chunk Nation came forward in support of this bill, and provide a little bit of background as well. In 2013, I was threatened by a white supremacist, who was a member of a gang. He said he knew where I lived and knew that I had a family,” Attorney General WhiteEagle said.
“I can say for the first time, I was really scared. I did approach the county district attorney, and he indicated that he took a look at the statue and noted that tribal court judges were not included. But that if anything happened, he would move to prosecute.
“So I think that this bill is really important, because it provides that clarification that’s needed. Additionally, we do have some concurrent jurisdiction with Public Law 280. I also served as a county court commissioner. There were protections there. There aren’t necessarily the same protections in tribal court. And this bill closes that gap.”
Judge James Schlender is an enrolled member of the La Courte Oreilles Ojibwa tribe and serves on the La Courte Oreilles tribal court in Hayward, Wisconsin.
“It’s a necessary component to ensure that myself, and people who appear in my court, have a layer of protection that currently doesn’t exist,” Judge Schlender said.
“I also serve as a reserve judge in Sawyer County as a court commissioner. I hear some matter in state court where I’m presiding I have the protection of the law. But when I serve in the capacity as a tribal judge, I don’t have the same capacity or protection under state law.”
Family law goes under the area of civil jurisdiction in both tribal and state court. It’s from there that you see a lot more of the violence that comes from that, Judge Schlender said.
Judge Schlender mentioned the loss of a law school friend who was killed for involvement in a child custody case, and a court clerk who was killed while working late.
“I’d ask this committee to strongly consider removing this last exemption. Instead of having this idea that when you’re in state court, judges and the court staff that participate are protected. Allow for the protection to incorporate tribal judges as well,” Judge Schlender said.
Lisa Summers is from the Oneida Nation and serves as their Tribal Secretary. Summers greeted the committee in the Oneida language before giving her testimony.
“I just want to say that Oneida is in full support of the amendment to this law. We look at the application to all former judges, prosecutors, and law enforcement officers, and we believe that the same application should apply to tribal officials as well that act in this capacity,” Summers said.
“Oneida currently hears approximately 300 cases per year in family law, and I think that’s the one that’s our biggest concern. That seems to be the area that generates the most tendency towards some kind of violence when it comes to having an order implemented or enforced.
Oneida’s law enforcement agency handles about 22,000 calls per year, Summers said.
“This is something that we believe should be extended to the nations. There are 11 federally recognized tribes, and we all know Menominee has a little bit of a different situation, but with Oneida only opening its current judiciary in the last 2 years, this is something that we are looking forward to be applicable to our officers as well,” Summer said.
The Menominee Nation’s federal recognition was terminated by the federal government in 1950s and was reinstated in the early 1970s. During that timeframe, Wisconsin, along with Alaska, California, Minnesota, Nebraska, and Oregon became Public Law 280 states, which gave the state criminal jurisdiction on reservation or trust land.
Crimes committed on the Menominee reservation are tribal or federal offenses, not state offenses. When the crime is a federal offense, the FBI investigates, an US Attorney prosecutes, the person charged appear before a federal judge and are sentenced to a federal prison.
Next, the amendments to the law will go before and be voted on by the State Legislature.
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