Wisconsin Legislature: Conservation; Indians; Law Enforcement; Menominee Indians; Sheriffs;

74 Op. Att'y Gen. 245, 245 (1985)

Conservation; Indians; Law Enforcement; Menominee Indians; Sheriffs;

State and county conservation wardens and sheriff's officers have authority under state law to arrest a Menominee Indian suspect on the reservation following fresh pursuit for an off-reservation violation of state law, if the arrest is one the officer is otherwise authorized to make. Although the state is generally obliged to comply with Menominee tribal extradition procedures, the state's personal jurisdiction over an Indian arrested under the circumstances described is probably not pre-empted by federal law. OAG 50-85

December 30, 1985

74 Op. Att'y Gen. 245, 246 (1985)

C.D. Besadny

Secretary

Department of Natural Resources

74 Op. Att'y Gen. 245, 246 (1985)

You have asked whether state and county conservation wardens, while in fresh pursuit of a suspected offender, may legally enter the Menominee Indian Reservation and arrest a Menominee Indian suspect for an off-reservation violation of state law, whether the potential charges include a felony, a misdemeanor or a violation punishable only by a civil forfeiture. Implicit in your inquiry is the question of whether, and to what degree, the state's personal jurisdiction over a suspect thus arrested is dependent upon compliance with tribal procedures regulating the extradition of Indians from the Menominee reservation. I have received a similar inquiry from Shawano County District Attorney Gary Bruno concerning the authority of Shawano County sheriff's officers. Therefore my response will address the authority of both sheriff's officers and conservation wardens.

74 Op. Att'y Gen. 245, 246 (1985)

For the reasons which follow, I am of the opinion that state and county conservation wardens and sheriff's officers have authority under state law to arrest a Menominee Indian suspect on the reservation following a fresh pursuit for a violation of state law occurring off the reservation, if the arrest is one the officer is otherwise authorized to make. Although the state is generally obliged to comply with Menominee tribal extradition procedures, the state's personal jurisdiction over an Indian arrested under such circumstances is probably not pre-empted by federal law. Neither the failure of the tribal ordinance to address the fresh pursuit situation nor an officer's failure to comply with applicable tribal extradition requirements in a particular instance is likely to deprive the Wisconsin courts of personal jurisdiction over such a defendant.

74 Op. Att'y Gen. 245, 246 (1985)

The requirements of Wisconsin law must be met

74 Op. Att'y Gen. 245, 246-247 (1985)

Before addressing the conflicting state and tribal jurisdictional issues central to your inquiry, it is important to note that the requirements of Wisconsin arrest law generally must be met because the legality of a warrantless arrest after a fresh pursuit may be critical to the state's personal jurisdiction over a defendant as a matter of state law. Cf. Walberg v. State, 73 Wis. 2d 448, 243 N.W.2d 190 (1976);

State v. Monje

, 109 Wis. 2d 138, 325 N.W.2d 695 (1982), annotated at 25 A.L.R. 4th 157 (1983);

United States v. Crews

, 445 U.S. 463 (1980); 21 Am. Jur. 2d

Criminal Law

340-41.

74 Op. Att'y Gen. 245, 247 (1985)

Thus, I assume that the officer in question has probable cause to make an arrest before initiating the pursuit, and that the offense to be charged is one for which the officer is authorized to make an arrest.

City of Madison v. Ricky Two Crow

, 88 Wis. 2d 156, 276 N.W.2d 359 (Ct. App. 1979);

State v. Cheers

, 102 Wis. 2d 367, 386-88, 306 N.W.2d 676 (1981). I further assume that both sheriff's officers and conservation wardens are "peace officers" or "law enforcement officers" as defined in the statutes. Secs. 939.22(22) and 967.02(5), Stats.

74 Op. Att'y Gen. 245, 247 (1985)

If the officer has probable cause and the statutory authority to arrest without a warrant for the offense to be charged, it is irrelevant under section 175.40, Wisconsin's recently enacted statute on intrastate fresh pursuit, whether the alleged offense would be charged as a felony or misdemeanor or would simply be punishable by a civil forfeiture. Pursuant to section 175.40, any peace officer may, when in fresh pursuit, follow anywhere in the state and arrest any person for a violation of any law or ordinance the officer is authorized to enforce. Thus, Wisconsin has by statute abolished former territorial and subject matter limitations on a peace officer's authority to arrest after fresh pursuit within the state.

Cf. Carson v. Pape

, 15 Wis. 2d 300, 308, 112 N.W.2d 693 (1961). 5 Am. Jur. 2d

Arrest

51 (1962); Sec. 66.31, Stats. (1979); 61 Op. Att'y Gen. 419, 421 (1972).

74 Op. Att'y Gen. 245, 247-248 (1985)

The term "fresh pursuit,"¯

though not defined in section 175.40, is a venerable common law concept which has typically been defined in the case law as pursuit without unreasonable delay under all of the surrounding circumstances.

Six Feathers v. State

, 611 P.2d 857, 861 (Wyo. 1980);

See also

Cohen,

Handbook of Federal Indian Law

at 382. This conclusion is consistent with constitutional extradition law generally, since extradition is essentially intersovereign in nature, creating only incidental rights in the accused.

See Michigan v. Doran

, 439 U.S. 282, 287 (1978);

Tavarez v. U.S. Att'y Gen.

, 668 F.2d 805, 810 (5th Cir. 1982);

State ex rel. Niederer v. Cady

, 72 Wis. 2d 311, 317, 323-24, 240 N.W.2d 626 (1976). Extradition provides an orderly process serving the dual function of securing for the asylum jurisdiction a means of protecting its residents from unjust criminal actions by the demanding jurisdiction and of securing for the demanding jurisdiction the return of a fugitive for trial.

Id.

74 Op. Att'y Gen. 245, 251 (1985)

Since extradition is an aspect of tribal sovereignty, therefore, the first question under

Rice

is whether the Menominee Tribe has a tradition of tribal self-government over extradition of Indians accused of off-reservation violations of state law.

Rice

, 463 U.S. at 720;

Webster

, 114 Wis. 2d at 434;

Chapman

, 122 Wis. 2d at 215.

74 Op. Att'y Gen. 245, 251 (1985)

I am informed that in 1981, the Menominee Tribal Legislature adopted an ordinance governing extradition to the State of Wisconsin of Indians formally charged with felonies or with violating the terms of probation and parole under state law. In its statement of legislative policy, the ordinance sets forth the tribe's intent not to provide a haven for persons avoiding the enforcement of the state's criminal laws, but instead to provide a mechanism for state-tribal cooperation in returning to the demanding jurisdiction persons accused of violating the criminal laws of that jurisdiction.

74 Op. Att'y Gen. 245, 251 (1985)

The existing tribal ordinance neither addresses nor provides any procedures for arrests by state law enforcement officers after a fresh pursuit onto the reservation, nor does it authorize the extradition of persons accused of misdemeanors or offenses punishable only by a civil forfeiture. However, it does appear that the Menominees have established a definite, if limited, policy of tribal self-government over the extradition of Indians charged with off-reservation felonies and probation and parole violations.

74 Op. Att'y Gen. 245, 251 (1985)

The second step in the

Rice

analysis requires an evaluation of the balance of state, federal and tribal interests involved.

Rice

, 463 U.S. at 720-25;

Webster

, 114 Wis. 2d at 435;

Chapman

, 122 Wis. 2d at 216. The tribe's interests, as expressed in the tribal ordinance, are in creating orderly procedures under the supervision of tribal authorities, for the transfer of certain fugitives from state jurisdiction back to the state and in preventing tribal lands from becoming a haven for violators of state law.

74 Op. Att'y Gen. 245, 251-252 (1985)

The state's interest in apprehending and bringing to trial persons accused of violating state law is clear. Equally clear is the possible direct impact, beyond reservation boundaries, on effective state and local law enforcement if the state has no mechanism for arresting Indians who violate state laws off the reservation and bringing them before the state courts for trial.

Cf. Rice

, 463 U.S. at 724. This impact is particularly acute in the fresh pursuit situation where the identity of the suspect is often unknown to the pursuing officer so that alternative methods of apprehension, including the extradition process, are unavailable. Tribal concerns that the reservation not become a haven for fugitives are mirrored in those of state and local law enforcement that the reservation boundary not be a one-way barrier through which Indian lawbreakers can flee to avoid arrest. Disrespect for the law and the legal process is likely to be encouraged in both Indians and non-Indians if officers in fresh pursuit of a suspect cannot follow an Indian suspect onto the reservation to make an arrest.

74 Op. Att'y Gen. 245, 252 (1985)

The jurisdictional history of state, federal and tribal authority over the Menominee Reservation is exceedingly complex, and will not be repeated here.

See generally, Webster

, 114 Wis. 2d at 421-24, 436-37. Suffice it to say, as a result of the restoration of reservation status and retrocession of the state's jurisdiction, since March 1, 1976, the state has had no explicit authorization from Congress to exercise general jurisdiction over tribal members within the Menominee Reservation.

Webster

, 114 Wis. 2d at 437;

cf. Sanapaw v. Smith

, 113 Wis. 2d 232, 335 N.W.2d 425 (Ct. App. 1983). Although the state's jurisdiction over Indians on the Menominee Reservation is clearly limited,

Rice, Webster

and

Chapman

all caution that the lack of explicit federal authorization is not decisive, at least in matters where the state traditionally has exercised significant control or where there may be significant effects beyond the reservation boundaries.

Rice

, 463 U.S. at 731;

Webster

, 114 Wis. 2d at 433-34;

Chapman

, 122 Wis. 2d at 217-19. As noted above, the state has exclusive jurisdiction over off-reservation violations of state law and this is an area where the impact on state and local law enforcement could be direct and significant.

74 Op. Att'y Gen. 245, 252 (1985)

It may also be relevant that the state continues to have general jurisdiction over non-Indians on the reservation. The state, for example, has jurisdiction over crimes committed on the reservation by non-Indians against non-Indians.

United States v. Wheeler

, 435 U.S. 313, 324-25, n.21, citing

United States v. McBratney

, 104 U.S. 621 (1882).

74 Op. Att'y Gen. 245, 253 (1985)

Article IV, section 2 of the Federal Constitution, which governs extradition between states, does not apply to state-tribal extradition.

Cf. Ex Parte Morgan

, 20 F. 298 (W.D. Ark. 1883);

Turtle

, 413 F.2d at 685. Nonetheless, it is notable that as between the states, Wisconsin's right to secure the extradition of fugitives from its jurisdiction has constitutional protection. Furthermore, the traditional rule is that a state maintains its personal jurisdiction to try a defendant even if the defendant has been removed from an asylum jurisdiction in violation of the asylum state's or nation's extradition laws.

Frisbie v. Collins

, 342 U.S. 519, 522 (1952);

Mahon v. Justice

, 127 U.S. 700 (1888);

Davis

, 643 F.2d at 526;

Weddell

, 636 F.2d at 214-15;

Desjarais v. State

, 73 Wis. 2d 480, 489-90, 243 N.W.2d 453 (1976);

Baker v. State

, 88 Wis. 140, 59 N.W. 570 (1894);

cf. State v. Monje

, 109 Wis. 2d 138, 325 N.W.2d 695 (1982);

State v. Brown

, 118 Wis. 2d 377, 348 N.W.2d 593 (Ct. App. 1984).

74 Op. Att'y Gen. 245, 253 (1985)

On the other hand, in the interest of state and tribal comity, Wisconsin has a strong interest in cooperating with tribal law enforcement generally and in complying with tribal extradition requirements specifically. This interest has received express legislative recognition in the enactment of section 976.07, which clearly contemplates mutual assistance and cooperation in extradition matters.

74 Op. Att'y Gen. 245, 253 (1985)

The final component to be added to the balance is the nature of the federal interests involved. In general, there would appear to be a strong federal interest in promoting observance of extradition procedures between the state and the tribe, if only because the extradition clause of the Constitution has significant implications for federalism and national unity:

74 Op. Att'y Gen. 245, 253 (1985)

The purpose of the Clause was to preclude any state from becoming a sanctuary for fugitives from justice of another state and thus "balkanize" the administration of criminal justice among the several states. It articulated, in mandatory language, the concepts of comity and full faith and credit....

74 Op. Att'y Gen. 245, 253 (1985)

Doran

, 439 U.S. at 287-88. Certainly, the same policy considerations would apply to the state-tribal extradition context. At the same time, the federal government has no identifiable interest in obstructing a state's authority to bring before its courts those who violate its laws, so long as basic constitutional guarantees, such as due process, are observed.

74 Op. Att'y Gen. 245, 254 (1985)

Having determined that there is a limited tradition or policy of tribal sovereignty with regard to extradition of accused felons and probation and parole violators, and having identified the various state, tribal and federal interests involved, it is necessary to evaluate the balance of those interests in order to determine the "backdrop of tribal sovereignty" which must precede the pre-emption analysis in the situation you describe.

Rice

, 463 U.S. at 720-25;

Webster

, 114 Wis. 2d at 435-36.

74 Op. Att'y Gen. 245, 254 (1985)

Rice

explicitly declares that there is no single notion of tribal sovereignty.

Rice

, 463 U.S. at 725. Based on

Rice

and

Webster

, the balance which the courts may strike in any particular instance cannot be predicted with certainty.

Cf. Chapman

, 122 Wis. 2d at 216-17. Both cases do, however, suggest a number of factors which may influence the balance in a particular case. Whether a tradition of tribal sovereignty exists and whether the subject matter has a substantial impact beyond the reservation are clearly important.

Rice

, 463 U.S. at 725. Both factors are present in the fresh pursuit situation you describe.

74 Op. Att'y Gen. 245, 254 (1985)

In addition, it seems particularly appropriate in such a jurisdictionally interrelated area as arrest and extradition to inquire whether an accommodation of state, tribal and federal interests is possible.

Cf. Washington v. Confederated Tribes of the Colville Reservation

, 447 U.S. 134, 156 (1980). Although the state, tribal and federal interests involved are significant, analysis suggests that they are not necessarily in conflict. It would appear, in fact, that an accommodation of state and tribal interests is possible to a great degree. The tribe has disavowed any interest in providing a sanctuary for fugitives from state jurisdiction and has sought primarily to establish a fair and orderly process for the apprehension of accused felons and probation and parole violators and their transfer to state custody. The state, of course, is primarily concerned about securing custody of fugitives by lawful means in order to bring them to trial, and has a strong interest in having the cooperation of tribal authorities in doing so.

74 Op. Att'y Gen. 245, 254 (1985)

In the situation where a state felony arrest warrant or a probation and parole hold has been issued or can be secured, state and tribal interests can be accommodated by compliance with existing tribal extradition procedures. Indeed, following

Chapman

, the tribal extradition ordinance would appear to control.

Chapman

, 122 Wis. 2d at 216-17.

74 Op. Att'y Gen. 245, 255 (1985)

Arguably at least, state and tribal interests can also be reconciled in the fresh pursuit situation, even though the tribal extradition ordinance does not address fresh pursuit or provide a mechanism to process arrests after a fresh pursuit by state or local law enforcement officers. Both legal precedent and practical concerns suggest that the failure of the tribal ordinance to address the fresh pursuit situation would not itself preclude a lawful arrest or pre-empt the state's jurisdiction. On the other hand,

Chapman

suggests that tribal legislation on the issue of fresh pursuit, if enacted, would be controlling.

Chapman

, 122 Wis. 2d at 211.

74 Op. Att'y Gen. 245, 255 (1985)

As noted earlier in this opinion, the doctrine of fresh pursuit is a venerable and universally recognized exception to intrastate limitations on the authority to arrest across jurisdictional lines. It has apparently been recognized in the reservation context as well.

See

Cohen,

Handbook of Federal Indian Law

at 357 n.80. In addition, the distinction between a warrantless arrest in advance of extradition based solely on probable cause and the institution of formal extradition proceedings based on an extradition warrant or requisition has long been recognized.

Burton v. New York C. & H. RR. Co.

, 245 U.S. 315, 318 (1917);

State v. Klein

, 25 Wis. 2d 394, 402-03, 130 N.W.2d 816 (1964). According to

Burton

, the federal constitutional provisions and statutes regulating extradition do not apply to an arrest prior to an extradition request, nor do they immunize a citizen from arrest until after extradition proceedings have been initiated.

Burton

, 245 U.S. at 318-19. By analogy, it seems unlikely that the failure of the tribal extradition ordinance to address the issue of arrests after fresh pursuit can by itself immunize tribe members from such an arrest or pre-empt a state officer's otherwise lawful authority to make such an arrest.

Cf. Chapman

, 122 Wis. 2d at 216-17.

74 Op. Att'y Gen. 245, 255 (1985)

As a practical matter, of course, in any fresh pursuit situation established policy should require that the state or local law enforcement officer involved contact tribal police at the earliest opportunity to inform tribal authorities of the entry into tribal jurisdiction and, if possible, to secure their assistance. If the fresh pursuit problem is a recurring one, it may be appropriate to explore the possibility of establishing a formal procedure for handling such arrests, possibly in the context of an agreement contemplated by section 976.07. A workable solution to tribal-state fresh pursuit issues is, of course, a goal to be pursued.