The walls of the Wisconsin Supreme Court are decorated with murals marking important moments in legal history: the reign of Caesar Augustus Octavius, the granting of the Magna Carta and the signing of the U.S. Constitution. 

The fourth depicts a smaller moment in world history but an important one for Wisconsin. The right wall displays the murder trial of Chief Oshkosh of the Menominee. In the 1830 trial, Judge James Doty ruled that Oshkosh followed the rules that would apply in tribal traditions and law. In saying that territorial laws didn’t apply to Oshkosh, Doty set an important precedent that recognized the importance of tribal sovereignty. 

Today, Judge Gwendolyn Topping is an associate judge for the Red Cliff Band Tribal Court in northwestern Bayfield County. She hears a wide range of cases, from child welfare to traffic. In her first year on the bench in 2016, Topping, a member of the Red Cliff Band, Bear Clan, became involved with the Wisconsin Tribal Judges Association to serve as a voice for equal justice of the 11 federally recognized tribal nations in Wisconsin. 

As current president of the association, Topping began work with the State Tribal Justice Forum, which is made up of officials from both the tribes and the state who work to promote communication, education and cooperation between the two legal systems.

However, the forum has run into a roadblock.

“Because the relationship between the judges association and the Supreme Court is so positive and strong right now, the tribal justice forum had maybe lost its purpose for a little bit, reframing the direction from a springboard to bring tribal and state issues to the Supreme Court level to identifying and finding ways to improve ways to serve our constituents,” she says. 

While this balance and understanding between Wisconsin’s Indigenous people and the state is strong today, it hasn’t always been this way. 

When Wisconsin became a state in 1848, it began “to extend its law over Indian people” in violation of federal treaties. The feds did not step up and say, “‘wait a minute Wisconsin you can’t do this,’” according to Larry Nesper, a retired emeritus professor of anthropology and American Indian & Indigenous Studies at UW–Madison. Following a more than 100-year period of Native American suffering under that state regime, Public Law 280 passed by the U.S. Congress transferred legal authority from the federal government to five states, Wisconsin one of them, undercutting tribal judiciaries.

In Wisconsin today, there are 11 federally recognized American Indian tribes and bands, whose sovereign status gives the tribes a level of autonomy to govern themselves. Tribes have elected executives and legislative bodies, administrative departments and, in some cases, law enforcement departments. Every tribe in Wisconsin also has a justice system, most of which function as tribal courts with different rules and judicial terms. 

“That’s probably one of the biggest things that really catches everybody’s breath, ‘Oh you’re really not that different,’” Topping says. 

Generally, the state of Wisconsin hears criminal law cases and tribes can hear civil law cases. The exception is the Menominee tribe, in which the tribal court has jurisdiction over both civil and criminal cases. The state has limited authority over the reservations, which is navigated through decades of case law. 

Over the last several decades, tribal courts have partially maintained their sovereignty by presiding over cases they didn’t always have the right to rule over. 

“The tribes are doing more and more of the justice that used to be done by the state,” Nesper says.  

Legitimacy has long been an issue for tribal courts. Nesper says tribal courts, unlike state courts, have to be able to justify what they do not only to their tribal members internally, but externally. Tribes are subject to a high level of scrutiny.

“It’s been a process for the tribes of rediscovering what they value when it comes to justice,” Nesper says. 

In her role as co-chair of the tribal justice forum, Topping has strengthened an existing relationship with her co-chair, Judge John Anderson of the Bayfield County Circuit Court. Anderson and Topping were the first pair to serve as co-chairs of the forum, deviating from the tradition of having a state representative lead the committee. They have now been working together for four years. 

“He was the first county court judge to hold hearings in a tribal court. Once every six weeks, he was coming to the tribal court to hold court,” Topping says. “Things like that were the things that opened the door for that state-tribal connection.” 

Together, Topping and Anderson work on how to improve relationships and education opportunities. 

“It’s a good relationship. I’m lucky,” Anderson says. “I live in a county where historically we’ve had a pretty good relationship with the tribe.”  

There are more than 2,500 Red Cliff tribal members in Bayfield County, meaning they make up about 15% of the county’s population. The tribe runs several businesses: casinos, a marina, a park and a fish hatchery. About 300 people are employed in Red Cliff’s operations — 25% of whom are not Native American. 

In 2010, the county became the first county in Wisconsin to fly the tribal flag in their courtroom, according to Topping

“We have concurrent jurisdiction, and we recognize and give full faith and credit to each other’s orders that we should fly the flag here,” Anderson says. “It’s just a symbol of cooperation and respect.” 

Anderson also understands the change in tribal and state relations in Wisconsin over the last several decades. He claims that years ago, appropriate credibility was not generally given to tribal law. 

“The average person and even law enforcement might kind of turn their nose up to it,” he says, reflecting back. 

However, Anderson explains that tribal law in Wisconsin today is viewed more professionally. 

“It took some time. Like with anything, there’s implicit bias and not so implicit bias that occurs,” Anderson says. “Getting people to address their implicit racism and the way they look at the reservations and tribes, it took a while to change, but it did little by little.”