Location of the reservations of New York’s eight federally recognized Indian tribes. ()
Court administrators have proposed a procedure for state courts to formally recognize judgments rendered by Indian courts.
The proposed rule, 22 NYCRR §202.71, was recommended by the Advisory Committee on Civil Practice to eliminate uncertainty among state judges on how much weight to give to tribal court determinations, committee chairman George Carpinello said.
“We had heard from representatives of Indian tribes that state judges, mostly because of lack of familiarity, were not inclined to honor or enforce these judgments,” said Carpinello, a partner at Boies, Schiller & Flexner in Albany.
The proposal would allow a party to file a special proceeding under Article 4 of the CPLR with the county clerk’s office containing a copy of the Indian tribunal judgment for recognition in state court.
A judge would then decide if the judgment should be recognized under Article 53 of the CPLR or under the common law principle of comity.
The general idea is to have the Indian judgments, where appropriate, accepted by New York courts as they now recognize judgments rendered by courts of other sovereign nations, Carpinello said in a recent interview.
“Native judgments are like foreign judgments,” Carpinello said. “They are not entitled to full faith and credit. They are entitled to comity.”
Comity applies to the mutual recognition by states or nations of the laws or judicial rulings of other states or nations.
The proposed rule is being circulated for public comment by the Office of Court Administration in anticipation of its adoption by the administrative board of the courts. The comment period ends on Sept. 12.
Of the eight federally recognized Indian tribes in New York, the St. Regis Mohawks, the Senecas and the Oneidas all have structured court systems.
Some Indian court judgments are already accepted by state courts and would not be affected.
Under the federal Indian Child Welfare Act, state courts must give full faith and credit to any judgment of an Indian court applicable to an Indian child custody proceeding. Similarly, the federal Women Against Violence Act specifically requires state courts to recognize certain judgments by Indian tribunals, such as the issuance of orders of protection.
Carpinello said his committee’s recommendation grew out of discussions at the New York Federal-State-Tribal Courts Forum and the New York Tribal Courts Committee, two groups formed in the early 2000s to improve communications between the Indian and non-Indian justice systems.
The initiatives were promoted by the National Conference of Chief Justices and former New York chief judge Judith Kaye.
The co-chair of the forum, Manhattan Supreme Court Justice Marcy Kahn (See Profile), said the proposal does not change the legal standards state courts should use when asked to recognize an Indian court judgment, but makes it clear that essentially the same rules apply to the Indian judgments as those from out-of-state or foreign courts.
“It is really designed to provide a road map for state trial judges and for the parties who are seeking to have state courts recognize judgments already obtained in tribal courts,” Kahn said in an interview. “We really don’t think that a party that has won a judgment in tribal court should have to relitigate that in state court where a judgment satisfied New York rules for comity for foreign judgments.”
The statewide rule is similar to a procedure worked out in the late 2000s between the Oneida Indian Nation and the Fifth Judicial District where individuals seeking to enforce judgments by the Oneida court have to file the judgment with the state court, thereby putting the opposing party on notice of the attempt at enforcement.
A state judge would then extend full faith and credit to the Indian judgment as long as certain conditions are met, such as recognition by the state judge that the tribal judgment would not do “violence” to a strong public policy in New York state.
Kahn said there has been a trend in recent years of the U.S. Department of Justice, other federal agencies and of non-Indian courts to give “greater respect” to Indian courts and their rulings.
While almost all tribes, including those indigenous to New York, had ancient mechanisms for adjudicating disputes among members or against the tribe as a whole, their proceedings and the penalties were often unconventional by non-Indian judicial standards. It was not until 1934 that the federal Indian Reorganization Act allowed the tribes to operate their own courts to enforce their own justice codes.
Wisconsin state courts are the only ones in the nation that extend full faith and credit to all judgments of the tribal courts operating within its borders.
Persons wishing to comment on the tribal court proposal have until Sept. 12 to e-mail submissions to email@example.com or via mail to John McConnell, Counsel, Office of Court Administration, 25 Beaver St., 11th Floor, New York, N.Y., 10004.