AN UNEXPECTED CHALLENGE: THE CONSEQUENCE OF A LIMITED TRIBAL APPELLATE CASELOAD.

• Author: Matha, Todd R.

1. A UNIQUE CONTEXT

   An appellate court's decisions should derive from careful deliberation, involving an acute dissection of legal issues, an exhaustive performance of relevant research, and an integration--exacting in detail--of these two undertakings. This unexceptional proposition holds greater significance for recently emerging tribal judiciaries. (1) These appellate tribunals are engaged in constructing unique forms of jurisprudence that bear resemblance to Anglo-American tradition in varying degrees, (2) but exist to develop tribal law and envelop distinct tribal customs, mores, and traditions. This expectation, already a daunting one, is usually confounded by the sheer lack of substantive appeals that a tribal judiciary routinely confronts. Tribal precedent, therefore, generally grows in fits and starts, and a misstep, even slight, can prove debilitating, especially since opportunities to correct course may not readily arise. The author attempts to illustrate this dilemma by resort to his experience as a tribal jurist for the Ho-Chunk Nation where he has served roughly equivalent trial and appellate level tenures over the past twenty-three years.

   The Ho-Chunk Nation, formerly known as the Wisconsin Winnebago, is a federally recognized Indian tribe with its principal headquarters located in Black River Falls, Wisconsin. (3) The Nation simultaneously functions as a direct and representative democracy, (4) and its judicial branch likewise derives from separate, but intertwined, traditions. (5) The Ho-Chunk Nation Judiciary may exercise "original jurisdiction over all cases and controversies, both criminal and civil, in law or in equity, arising under the Constitution, laws, customs, and traditions of the Ho-Chunk Nation." (6) Yet, the Ho-Chunk Nation Supreme Court entertains just a few appeals each year, averaging nine cases over twenty-six full years in existence (1996-2021). Parties filed seventeen appeals on two occasions, 1996 and 2000, representing the high mark during that timeframe. Conversely, in 2008 and 2010, the Court received merely four notices of appeal. (7)

   As a result, significant constitutional and substantive legal questions do not frequently reach the Court, and recurring consideration of singular or related issues seldom occurs, thereby largely negating any gradual common law development. The absence of an intermediate court of appeals, although practically unwarranted in light of the demonstrated caseload, eliminates deliberate dissection of and elaboration upon precedential authority. Instead, a solitary appellate opinion can definitively direct and instruct trial level practice and decision-making for decades. And, when errantly rendered, (8) the consequences are wide-ranging within a relatively small tribal community. (9)

   For these identified reasons, while the Judiciary has acknowledged principles of stare decisis, (10) it has not rigidly adhered to such strictures in practice. (11) The Supreme Court declines to perpetuate the impact of poorly reasoned and legally dubious case precedent even without an intervening profound change of circumstances. However, the Court must await an appropriate opportunity to act. A party must present a particular issue, which remains a justiciable concern, (12) for resolution or the Court must antecedently address an issue that impedes a full and necessary consideration of an appeal. (13) Once properly before it, the Court will not typically refrain from attempting to rectify past errors because these possibilities do not happen with any regularity.

   That being said, as reflected above, the Court has received ample opportunity to refine its jurisprudence on the margins, relating mostly to evidentiary burdens and standards of review. (14) The Court largely performed this task within election and employment disputes, which generally proceed to a determination on the merits absent timeliness concerns, e.g., running afoul of applicable statutes of limitation. (15) These cases usually advance through the Judiciary without much difficulty due to the presence of clear constitutional or statutory waivers of sovereign immunity. (16) Consequently, corresponding appeals do not characteristically afford the Court an ability to confront questions relating to constitutional or inherent authority, including jurisdictional issues and justiciability concerns. On occasion, however, ancillary questions to a central dispute will eclipse the principal disposition but, due to the nature of the predominant appellate caseload, do not--as already stated--readily reemerge on appeal.

   In 2021, the Court received a rare chance to revisit two 1997 opinions, In re Lonetree and Lowe, (17) that had guided trial level practice throughout all stages from initial pleading to enforcement of a final judgment. Each of these earlier opinions pertained to disputes regarding elective office, but only tangentially so. The constitutionally significant issues addressed within each did not reappear and garner judicial attention despite an intervening two decades of appellate consideration of alleged election irregularity, challenged employee discipline, and various other causes of action.

   Quite fortuitously, these two seminal opinions figured prominently in successive appeals arising out of a 2020 intragovernmental conflict between the executive and legislative branches. (18) Part II recounts the history of the 1997 precedent opinions. Part III provides the legal and practical backdrop of the 2020 dispute. Part IV offers some commentary upon tribal jurisprudential development as exemplified here. The author's concurring opinion in Thundercloud v. Ho-Chunk Nation Executive Branch, (19) where he discusses the extension of the defense of sovereign immunity from suit to official capacity actions, and the decisional component rendered by the author in Ho-Chunk Nation Legislative Branch v. Ho-Chunk Nation Trial Court, (20) where he assesses the vitality of a civil contempt fine following resolution of an underlying suit, follow the article.

2. THE MISSTEP--1997 CASES

   The Lonetree opinion emanated from a suite of cases, which still serve as the doctrinal foundation of the court system. (21) Following adoption of a new election code, (22) the Nation conducted its initial election under the successor constitution on June 6, 1995, (23) and litigation quickly ensued. (24) One of the cases involved allegations of campaign impropriety as legislative candidate Gail L. Funmaker accused fellow candidate Diane S. Lonetree of improperly using governmental property for personal advantage. (25) Ms. Funmaker sought to compel her opponent's testimony, along with a production of documents, at an evidentiary hearing, securing a subpoena for such purpose. (26) Ms. Lonetree, however, did not comply with the subpoena in any respect, and the trial court consequently proceeded against her for contempt of court. (27) Statutory law acknowledged the court's possession of contempt authority, (28) but no procedural guidance yet existed for the fledgling court. (29) Ultimately, the Supreme Court overturned the trial level contempt finding, opting to incorporate federal case law, which proved determinative. (30)

   Prior to fully resolving each dispute arising from the 1995 election, the membership chose to jettison the election's most high-profile victor. On January 11, 1997, the General Council removed President Chloris A. Lowe Jr. from office, (31) resulting in the organization of a pro tempore administration and preparation for an early presidential election that would align with an already scheduled general election. (32) The second influential appellate opinion at issue in this article resulted from President Lowe's attempt to enjoin these occurrences by bringing suit against the Nation and two governmental sub-entities. (33) The Supreme Court upheld the trial court's denial of a preliminary injunction given the retained sovereign immunity of the defendants, (34) but, in dicta, opined upon the manner in which to properly file suit against a governmental official, (35) including conjecture, in a footnote, (36) about the type of immunity implicated in such an action.

   In each decision, the Court somewhat reflexively analogized to foreign case law to aid in its initial interpretation of certain tribal constitutional and statutory provisions. The absence of any directly correlative Ho-Chunk tradition or custom served to justify adopting another sovereign's doctrinal approach to governmental immunities and judicial contempt. In doing so, the Court did not apparently perform a deliberate and exhaustive examination of the borrowed authority, thereby failing to adequately appreciate the development of the relevant jurisprudential principles. Without a firm command of pertinent doctrinal evolution, the inherent risks associated with incorporating and synthesizing external legal concepts dramatically increase. The Court misapplied or misconstrued such concepts in 1997 due to its seeming reluctance to perform this essential inquiry.

3. A REAPPEARANCE--2020 CASES

   The President of the Ho-Chunk Nation possesses authority "to propose...an annual budget to the Legislature," (37) and the legislative branch maintains the power "[t]o authorize expenditures by law and appropriate funds to the various Departments in an annual budget." (38) Typically, the budgetary process extends from at least January 15 until June 25, culminating in passage of an annual budget prior to the beginning of the fiscal year on July 1. (39) However, 2020 was not a typical year.

   In early March 2020, the tribal newsletter reported that "[a]t this time there are no suspected or confirmed cases of COVID-19 in our jurisdiction," (40) but by the next publication the front-page story advised, in part, as follows:

   President Marlon White Eagle declared a state of emergency...on March 13..., includ[ing] limitations on employment related travel...and other... social...