State v. Big John

• Decision Date: 14 December 1988
• Docket Number: No. 86-1948,86-1948
• Citation: 146 Wis.2d 741,432 N.W.2d 576
• Parties: STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Kenneth BIG JOHN, Gilbert Chapman, Robert A. Chapman, Jerry A. Christensen, James Cross, Goldie Larson, Duane E. Poupart, John V. Snow and Steve K. St. Germaine, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 576

432 N.W.2d 576

146 Wis.2d 741

STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Kenneth BIG JOHN, Gilbert Chapman, Robert A. Chapman, Jerry A. Christensen, James Cross, Goldie Larson, Duane E. Poupart, John V. Snow and Steve K St. Germaine, Defendants-Respondents.

No. 86-1948.

Supreme Court of Wisconsin.

Submitted on Briefs Sept. 8, 1988.

Decided Dec. 14, 1988.

Maureen A. McGlynn, Asst. Atty. Gen., with whom on the brief was Donald J. Hanaway, Atty. Gen., for plaintiff-appellant-petitioner.

James M. Jannetta, Kathryn L. Tierney and Lac du Flambeau Trial Office, Lac du Flambeau, for defendants-respondents.

CECI, Justice.

This is a review of a decision of the court of appeals, State v. Big John, 140 Wis.2d 322, 409 N.W.2d 455 (Ct.App.1987), which affirmed an order of the circuit court for Oneida county, Robert E. Kinney, circuit judge, dismissing citations issued to each of the nine respondents. The issue presented for review is whether the state of Wisconsin (petitioner) has jurisdiction to enforce sec. 30.51(1), Stats., against tribal members of the Lac du Flambeau Band of the Lake Superior Chippewa Indians (Band) who are operating motorboats registered pursuant to a tribal law upon state waters located off the Band's reservation. The court of appeals concluded that enforcing sec. 30.51(1) against the tribal members would infringe on the Band's right of tribal self-government, and, therefore, the state is without jurisdiction to proceed on the citations. We reverse.

The facts are undisputed. Nine enrolled members of the Lac du Flambeau Band of the Lake Superior Chippewa Indians were cited, between April 19 and April 23, 1986, by the Wisconsin Department of Natural Resources for operating unregistered motorboats on state waters outside the Band's reservation, in violation of sec. 30.51(1), Stats. ¹ Each of the boats operated by the respondents was without a valid state certificate sticker or decal properly attached to and displayed on the boat, and each of the boats operated by the respondents was without a valid state identification number properly displayed on the boat. Each boat did, however, have displayed on its bow a numbered decal evidencing the boat's registration under the provisions of the Band's boat registration ordinance. ² At the time the citations were issued, the respondents were exercising tribal treaty rights to fish in the waters of the ceded territories outside the Band's reservation.

On June 30, 1986, the respondents filed a motion to dismiss the citations, in a consolidated proceeding, on the grounds that the state lacked jurisdiction to enforce sec. 30.51(1), Stats., against them, because enforcement would infringe upon their treaty rights and because enforcement would interfere with tribal self-government based on the fact that the Band had enacted its own boat registration ordinance. The trial court, on September 12, 1986, concluded that requiring treaty Indian fishermen to register their boats with the state is an infringement upon the Indians' treaty rights and that enforcement of such boating regulations was, therefore, impermissible.

The court of appeals, in Big John, 140 Wis.2d at 326, 409 N.W.2d 455, affirmed the trial court's dismissal of the citations, but on different grounds than those asserted by the trial court. The court of appeals concluded that enforcement of sec. 30.51(1), Stats., against Band members who had registered under the Band's boat registration ordinance was preempted because enforcement would infringe upon the Band's right to tribal self-government. The court of appeals utilized the preemption analysis articulated in Rice v. Rehner, 463 U.S. 713, 103 S.Ct. 3291, 77 L.Ed.2d 961 (1983), and State v. Webster, 114 Wis.2d 418, 338 N.W.2d 474 (1983), in reaching its conclusion.

When material facts are undisputed, the question presented on appeal is one of law. State v. Williams, 104 Wis.2d 15, 21-22, 310 N.W.2d 601 (1981). Whether statutory provisions apply to a particular set of facts is also a question of law. Glover v. Marine Bank, 117 Wis.2d 684, 691, 345 N.W.2d 449 (1984). An appellate court decides questions of law independently without deference to the lower court's decision. Id.

The question before this court is whether application of the Rice/ Webster preemption analysis is appropriate in a case where the activity the state seeks to regulate occurs outside reservation boundaries. We hold that application of the preemption analysis is not appropriate where the activity the state seeks to regulate occurs outside reservation boundaries.

State jurisdiction over on-reservation activities of tribes is preempted if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 107 S.Ct. 1083, 1092, 94 L.Ed.2d 244 (1987). The inquiry is to proceed in light of traditional notions of Indian sovereignty and the congressional goal of encouraging tribal self-sufficiency and economic development. Id. 107 S.Ct. at 1092, citing New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334-35, 103 S.Ct. 2378, 2386-87, 76 L.Ed.2d 611 (1983). The United States Supreme Court has rejected the view that states are absolutely barred from exercising jurisdiction over tribal reservations and members. Webster, 114 Wis.2d at 432, 338 N.W.2d 474, citing White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141, 100 S.Ct. 2578, 2582, 65 L.Ed.2d 665 (1980). However, there are two independent but related barriers to the state's exercise of jurisdiction on reservations. First, the exercise of such authority may be preempted by federal law. White Mountain Apache Tribe, 448 U.S. at 142, 100 S.Ct. at 2583; Rice, 463 U.S. at 725, 103 S.Ct. at 3299; Second, state jurisdiction may infringe upon the rights of tribes to establish and maintain tribal government. White Mountain Apache Tribe, 448 U.S. at 142, 100 S.Ct. at 2583; Rice, 463 U.S. at 720-25, 103 S.Ct. at 3296-97; Webster, 114 Wis.2d at 432, 338 N.W.2d 474. Recent United States Supreme Court cases have revealed a trend away from the idea of inherent Indian sovereignty as an independent bar to state jurisdiction and toward reliance on federal preemption. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 884, 106 S.Ct. 2305, 2309, 90 L.Ed.2d 881 (1986), citing Rice, 463 U.S. at 718, 103 S.Ct. at 3295. Accordingly, the Court has formulated a comprehensive preemption inquiry which examines not only the congressional plan, but also the nature of the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in the specific context, the exercise of state authority would violate federal law. Three Affiliated Tribes of the Fort Berthold Reservation, 476 U.S. at 884, 106 S.Ct. at 2310, citing White Mountain Apache Tribe, 448 U.S. at 145, 100 S.Ct. at 2584.

On the other hand, the off-reservation activities of Indians are generally subject to the prescriptions of a nondiscriminatory state law, in the absence of an express federal law to the contrary. Oregon Dept. of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 765 n. 16, 105 S.Ct. 3420, 3427 n. 16, 87 L.Ed.2d 542 (1985); New Mexico v. Mescalero, 462 U.S. at 335 n. 18, 103 S.Ct. at 2387 n. 18; Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270-71, 36 L.Ed.2d 114 (1973). Examples of "express federal laws" which may prevent the full application of state regulatory laws to Indians off their reservations include specific treaty rights, such as hunting or fishing rights, which may limit the extent to which state laws regulating those particular activities can be applied to Indians off their reservations. See Puyallup Tribe v. Dept. of Game, 391 U.S. 392, 398, 88 S.Ct. 1725, 1728, 20 L.Ed.2d 689 (1968); State v. Gurnoe, 53 Wis.2d 390, 410-11, 192 N.W.2d 892 (1972); State v. Newago, 134 Wis.2d 420, 397 N.W.2d 107 (Ct.App.1986). In such cases, if the challenged state regulation infringes upon treaty rights, the state's jurisdiction to enforce the law is not automatically precluded. However, the burden is on the state to show that the restrictions are "reasonable and necessary" for conservation purposes. Antoine v. Washington, 420 U.S. 194, 207, 95 S.Ct. 944, 952, 43 L.Ed.2d 129 (1975); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin, 668 F.Supp. 1233, 1235 (W.D.Wis.1987); Newago, 134 Wis.2d at 425-28, 397 N.W.2d 107. ³

Therefore, this court must determine, in the context of this case, three questions. The first question is whether enforcement of sec. 30.51(1), Stats., would impermissibly infringe upon the Band's treaty-protected fishing rights. The second question is whether there is any express federal legislation which prohibits the application of sec. 30.51(1) to tribal members outside their reservation, and the third question is whether sec. 30.51(1) is nondiscriminatory. ⁴

Section 30.51(1), Stats., does not purport to regulate fishing rights. The statute was enacted as part of the state's system for the regulation of boating. State v. Jackman, 60 Wis.2d 700, 703, 211 N.W.2d 480 (1973). The statutory system of numbering and registration of boats is reasonably related to boating safety and is a valid exercise of the state's police power. Id. at 703-05, 211 N.W.2d 480. The fact that sec. 30.51(1) has a valid safety purpose is not, however, dispositive. Statutes often have more than one purpose and more than one effect. See State v. Lemieux, 110 Wis.2d 158, 166-67, 327 N.W.2d 669 (1983). Therefore, we must determine whether sec. 30.51(1) actually restricts, hinders, impedes, or prohibits the time, place, or manner of exercise of the Band's treaty-protected fishing rights. It does not. Section 30.51(1) does not limit the number or type of...