RULES OF COURT
STATE SUPREME COURT
[November 28, 2018]
IN THE MATTER OF SUGGESTED AMENDMENT TO CR 82.5—TRIBAL COURT JURISDICTION
The Tribal State Court Consortium, having recommended the suggested amendment to CR 82.5—Tribal Court Jurisdiction, and the Court having approved the suggested amendment for publication;
Now, therefore, it is hereby
(a) That pursuant to the provisions of GR 9(g), the suggested amendment as shown below is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's websites in January 2019.
(b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.
(c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2019. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or firstname.lastname@example.org. Comments submitted by e-mail message must be limited to 1500 words.
dated at Olympia, Washington this 28th day of November, 2018.
For the Court
GR 9 COVER SHEET
Suggested Change to the
SUPERIOR COURT CIVIL RULES
Civil Rule (CR) 82.5 – Tribal Court Jurisdiction
Submitted by Tribal State Court Consortium
A. Name of Proponent: Tribal State Court Consortium
B. Spokesperson: Justice Barbara Madsen
C. Purpose: To provide a mechanism for state courts and tribal courts to communicate with each other to address issues when parties have simultaneous proceedings occurring in state and tribal court. The rule will also provide a mechanism for communication on enforcement of judgments between state courts and tribal courts.
The reason for this rule is that there is no consistent process for communication between state courts and tribal courts to work through jurisdictional issues or address conflicting orders in simultaneous proceedings. This court rule gives a framework to allow both state and tribal courts an efficient process to resolve jurisdictional issues and conflicts in orders to get to the substance of the disputes.
CR 82.5 (a)-(c) addresses tribal court exclusive jurisdiction, concurrent jurisdiction, and enforcement of tribal court orders, judgments, and decrees. This rule is the appropriate place to include the proposed communication rule as revised subsection (c) and new subsection (d).
D. Hearing: Not requested.
E. Expedited Consideration: Not requested.
Proposed Rule 82.5 (c) and (d) TRIBAL COURT JURISDICTION
(a) Indian Tribal Court; Exclusive Jurisdiction. Where an action is brought in the superior court of any county of this state, and where, under the Laws of the United States, exclusive jurisdiction over the matter in controversy has been granted or reserved to an Indian tribal court of a federally recognized Indian tribe, the superior court shall, upon motion of a party or upon its own motion, dismiss such action pursuant to CR 12 (b)(1), unless transfer is required under federal law.
(b) Indian Tribal Court; Concurrent Jurisdiction. Where an action is brought in the superior court of any county of this state, and where, under the Laws of the United States, concurrent jurisdiction over the matter in controversy has been granted or reserved to an Indian tribal court of a federally recognized Indian tribe, the superior court may, if the interests of justice require, cause such action to be transferred to the appropriate Indian tribal court. In making such determination, the superior court shall consider, among other things, the nature of the action, the interests and identities of the parties, the convenience of the parties and witnesses, whether state or tribal law will apply to the matter in controversy, and the remedy available in such Indian tribal court.
(c) Enforcement of Indian Tribal Court Orders, Judgments or Decrees.
1) The superior courts of the State of Washington shall recognize, implement and enforce the orders, judgments and decrees of Indian tribal courts in matters in which either the exclusive or concurrent jurisdiction has been granted or reserved to an Indian tribal court of a federally recognized tribe under the Laws of the United States, unless the superior court finds the tribal court that rendered the order, judgment or decree (1) lacked jurisdiction over a party or the subject matter, (2) denied due process as provided by the Indian Civil Rights Act of 1968, or (3) does not reciprocally provide for recognition and implementation of orders, judgments and decrees of the superior courts of the State of Washington.
2) The superior court may attempt to resolve any issues raised regarding an Indian tribal court money judgment by contacting the Indian tribal court judge who issued the judgment. The superior court shall follow the procedure for communicating with the Indian tribal court judge outlined in subsection (d) of this rule.
(d) Communication between superior court of any county of this state and Indian tribal court.
1) A superior court of any county of this state may communicate with any Indian tribal court concerning co-occurring proceedings before the respective courts to address issues identified by the superior court, the Indian tribal court, or the parties to the co-occurring proceedings. The parties shall provide to the respective courts the identity, contact information, and a case or docket number of the other court's proceedings to facilitate this communication.
2) The superior court may allow the parties to participate in the communication. If the parties are not able to participate in the communication, they must be given an opportunity to present facts and legal arguments before a decision by either court is made. The Indian tribal court's procedures and customs shall determine the parties' participation in the Indian tribal court proceedings.
3) Communication between the superior court and the Indian tribal court on schedules, calendars, court records, and similar matters may occur without informing the parties. The superior court need not make a record of the communication. The Indian tribal court's procedures shall determine whether and how a record is made.
4) Except as otherwise provided in subsection (3) of this rule, the superior court must make a record of the communication under this section. The Indian tribal court's procedures shall determine whether and how a record is made in their court. The parties must be informed promptly of the communication and granted access to the record.
5) For the purposes of this section, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
6) This rule does not apply to adult criminal matters except when a superior court or Indian tribal court have issued orders prohibiting contact between parties that have co-occurring proceedings. Superior courts and Indian tribal courts may communicate about the orders prohibiting contact as set forth in sections 1-5 above.