State v. Webster

• Decision Date: 04 October 1983
• Docket Number: 82-1922-CR and 82-1923-CR,Nos. 82-1734-C,s. 82-1734-C
• Citation: 338 N.W.2d 474,114 Wis. 2d 418
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. James A. WEBSTER, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 474

338 N.W.2d 474

114 Wis.2d 418

STATE of Wisconsin, Plaintiff-Appellant, v. James A. WEBSTER, Defendant-Respondent.

Nos. 82-1734-CR, 82-1922-CR and 82-1923-CR.

Supreme Court of Wisconsin.

Argued Sept. 9, 1983.

Decided Oct. 4, 1983.

John D. Niemisto, Asst. Atty. Gen., with Bronson C. La Follette, Atty. Gen., on briefs, for plaintiff-appellant.

Stephen J. Menard and Eberlein, Gansen & Menard, Shawano, and oral argument by Stephen J. Menard, Shawano, for defendant-respondent.

Rita Keshena, Keshena, for the Menominee Indian Tribe, and Frances Wells, Milton Rosenberg, of counsel, Madison, for the Indian Law Center, amicus curiae.

CALLOW, Justice.

This is an appeal from an order of the circuit court for Menominee and Shawano counties, Judge Thomas G. Grover, dismissing for lack of jurisdiction three traffic complaints brought by the State of Wisconsin against the defendant, James A. Webster. The state appealed and petitioned to bypass the court of appeals pursuant to sec. 808.05 and sec. (Rule) 809.60, Stats. We granted the petition to bypass. We affirm the order of the circuit court.

The issue presented on appeal is whether the State of Wisconsin has jurisdiction over Menominee Indians in traffic matters growing out of their use of public highways located within the Menominee Indian Reservation.

On May 2, 1982, James Webster was involved in an automobile accident on State Highway 47, within the boundaries of the Menominee Indian Reservation. Highway 47 is a state highway, built and maintained by the State of Wisconsin for use by the general public. At the time of the incident, Webster was an enrolled member of the Menominee Indian Tribe.

The accident was investigated by the State Highway Patrol. As a result of the investigation, a state patrol officer issued three Wisconsin uniform traffic citations which resulted in the filing of three separate traffic complaints against Webster. The complaints charged Webster with operating a motor vehicle after revocation, contrary to sec. 343.44, Stats. 1979-80; operating a motor vehicle while under the influence of an intoxicant, contrary to secs. 346.63 and 346.65; and operating a motor vehicle without a valid Wisconsin driver's license, contrary to sec. 343.05.

On June 11, 1982, Webster filed a motion to dismiss the complaints on the ground that the court lacked jurisdiction over him because he was an enrolled member of the Menominee Tribe, and because the alleged violations occurred within the boundaries of the Menominee Indian Reservation. ¹ In dismissing the complaints, the trial court held that the state lacked jurisdiction to enforce state traffic laws against the defendant within the Menominee Reservation because such jurisdiction had not been granted to the state by the federal government.

In order to reach the issue presented in this case, it is necessary to trace in some detail the historical application of state jurisdiction to the Menominee Indian Tribe and Reservation. The Menominee Tribe of Indians was granted a reservation in Wisconsin by the Treaty of Wolf River in 1854. 10 Stat. 1064 (1854). By this treaty the Menominees retroceded certain lands they had acquired under an earlier treaty [Treaty of 1849, 9 Stat. 952 (1849) ]. The United States granted to the tribe a tract of land along the Wolf River "for a home, to be held as Indian lands are held." 10 Stat. at 1065. See Menominee Tribe v. United States, 391 U.S. 404, 405-06, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 (1968). The Treaty of 1856, 11 Stat. 679 (1856), by which the Menominees sold certain lands to the Stockbridge and Munsee Indians, included the following language:

"To promote the welfare and the improvement of the said Menominees, and friendly relations between them and the citizens of the United States .... That all roads and highways, laid out by authority of law, shall have right of way through the lands of the said Indians on the same terms as provided by law for their location through lands of citizens of the United States." Treaty of 1856, 11 Stat. at 679-80, Art. 3.

The State of Wisconsin established Highway 47 across the Menominee Reservation by permission of the Secretary of Interior, given pursuant to sec. 4, ch. 832, Act of March 3, 1901 [codified at 25 U.S.C. sec. 311 (1976) ]. ²

In August, 1953, the United States Congress enacted Public Law 280, 67 Stat. 588 (1953), which, as amended, became present 18 U.S.C. sec. 1162 (1976). Public Law 280 gave certain states, including Wisconsin, jurisdiction over crimes committed by or against Indians in Indian country within each state. As originally adopted, the law excepted the Menominee Reservation from the grant of jurisdiction to Wisconsin. This situation was short-lived, however, for on June 17, 1954, Congress enacted the Menominee Termination Act, Pub.L. No. 399, 68 Stat. 250 (1954) [codified at 25 U.S.C. secs. 891-902 (repealed) ]. The purpose of the Termination Act was "to provide for orderly termination of Federal supervision over the property and members of the Menominee Indian Tribe of Wisconsin." 68 Stat. at 250. Section 10 of the act provided that once title to property had passed from the federal government to a newly formed tribal corporation, "all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to the members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction." 68 Stat. at 252. To complete this process, on August 24, 1954, Congress amended 18 U.S.C. sec. 1162 (1976) [Pub.L. No. 661, 68 Stat. 795 (1954) ] to strike the Menominee exception, thereby subjecting the Menominee Reservation to the state's criminal jurisdiction as provided by 18 U.S.C. sec. 1162(a).

The transfer of property from the United States to the Menominee Tribe was effectuated when the Termination Plan was published by the Secretary of the Interior in 26 Fed.Reg. 3726 (1961). As part of the Termination Plan, it was noted that "[a]greement has been reached between the United States and the State of Wisconsin with respect to improvement and transfer of roads within the Menominee Reservation." ³ 26 Fed.Reg. at 3728. The plan further provided that "[the Secretary of the Interior] will also issue a deed or deeds to appropriate body or bodies for designated public lands, buildings and roads for school district, county and town." 26 Fed.Reg. at 3729. As a result of these legislative and executive actions, the Menominee Tribe was restored to ownership of its tribal lands but became subject to the state's criminal and civil jurisdiction. However, this state of affairs was again transitory.

On December 22, 1973, Congress repealed the Termination Act by enacting the Menominee Restoration Act, Pub.L. No. 93-197, 87 Stat. 770 (1973) [codified at 25 U.S.C. secs. 903-903f (1976) ]. The Restoration Act provided for resumption of tribal status and the return of tribal property to federal trusteeship. The Act, 87 Stat. at 770, provided, in pertinent part:

"(b) The Act of June 17, 1954 (68 Stat. 250; 25 U.S.C. secs. 891-902), as amended, is hereby repealed and there are hereby reinstated all rights and privileges of the tribe or its members under Federal treaty, statute, or otherwise which may have been diminished or lost pursuant to such Act.

"(c) Nothing contained in this Act shall diminish any rights or privileges enjoyed by the tribe or its members now or prior to June 17, 1954, under Federal treaty, statute, or otherwise, which are not inconsistent with the provisions of this Act."

Pursuant to the Restoration Act, the State of Wisconsin retroceded state jurisdiction over the Menominee Reservation by executive proclamation, effective March 1, 1976. See 66 Op.Att'y.Gen. 116 (1977).

The first question to be resolved is whether the Menominee's right of occupancy of the land encompassed by the Highway 47 right-of-way was extinguished when the Secretary of the Interior granted the right-of-way to the State of Wisconsin. This court addressed the same question in State v. Tucker, 237 Wis. 310, 296 N.W. 645 (1941). Tucker involved the issue of whether the state had jurisdiction to prosecute a Menominee Indian, living on the Menominee Reservation, who failed to register his truck and pay a state registration fee. Tucker was cited for operating his truck on that portion of Highway 47 within the boundaries of the reservation without registering his vehicle. In upholding the defendant's conviction for failure to register his truck, this court stated:

"Once the Indian title is perceived to be possessory in character, but subject to extinguishment by the United States, it is obvious that a grant by the United States which destroys this possessory right of the Indians destroys the Indian title. We conclude that this must be the result of the grant to the state of a right of way and permission to maintain a public highway. Such a grant includes by necessary implication the right of the state to take such possession of the land as will enable it to construct and repair and police the road, and to do all things necessary and incidental to the maintenance of a public highway.... After the grant is made, it is quite impossible for the Indians to continue occupation of it as part of the reservation." Tucker, 237 Wis. at 315-16, 296 N.W. 645.

Shortly after Tucker was decided, however, a federal district court judge in Ex Parte Konaha, 43 F.Supp. 747 (E.D.Wis.1942), questioned the soundness of the Tucker decision. Konaha arose from the arrest and prosecution of an enrolled Menominee Indian on a charge of negligent homicide stemming from an incident which occurred on Highway 47 within the boundaries of the Menominee Reservation. In granting a writ of habeas corpus brought by Konaha, the court held that the state did not have jurisdiction over the offense. The court...