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

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.

74 Op. Att'y Gen. 245, 256 (1985)
  In summary, although there is a limited tradition of tribal sovereignty over certain extradition matters, the balance of state, federal and tribal interests involved appears to favor an accommodation of the competing sovereign interests, rather than ignoring one in favor of the others. Cf. Rice, 463 U.S. at 719, 724.

74 Op. Att'y Gen. 245, 256 (1985)
D. Pre-emption.

74 Op. Att'y Gen. 245, 256 (1985)
  With this backdrop of tribal sovereignty in mind, the final question under Rice is whether the state's jurisdiction is pre-empted by federal law. 463 U.S. at 725.

74 Op. Att'y Gen. 245, 256 (1985)
  Pre-emption may result either from specific treaty provisions or from pervasive federal regulation in a defined area which excludes state intervention. Webster v. Department of Revenue, 102 Wis. 2d 332, 333-34 nn.3 and 4, 306 N.W.2d 701 (Ct. App. 1981). Or, as repeatedly described in Rice and earlier cases, the question is whether the state's action would "impair a right granted or reserved by federal law." 463 U.S. at 726.

74 Op. Att'y Gen. 245, 256 (1985)
  The various treaties with the Menominee contain no express provisions relating to extradition or criminal law generally. See C. Kappler, Indian Treaties, 1778-1883 (1904 ed., reprinted 1972), and the successive treaties with the Menominee Tribe reprinted therein.

74 Op. Att'y Gen. 245, 256 (1985)
  I am unaware of any federal statutes directly regulating either on-reservation arrests after fresh pursuit or state-tribal extradition problems generally. The Secretary of Interior has, however, promulgated a federal regulation under his general rule-making authority giving the Minneapolis Director of the Bureau of Indian Affairs (BIA) discretion to control the extradition of individual Indians from the Menominee Reservation. 25 C.F.R. 11.95ME (1985). The BIA area director is authorized to order the arrest by tribal police of particular Indian fugitives accused of crimes off the reservation and the delivery of those persons to state authorities at the boundaries of the reservation. 25 C.F.R. 11.95ME(a). Alternatively, the person arrested may demand a hearing before a tribal judge regarding the existence of probable cause and the likelihood of a fair trial in the demanding jurisdiction. 25 C.F.R. 11.95ME(b); but see Doran, 439 U.S. at 290.

74 Op. Att'y Gen. 245, 256-257 (1985)
  The federal regulation essentially gives the BIA area director discretion to secure the apprehension of a particular fugitive when tribal authorities cannot or will not act. Like the tribal ordinance, the regulation does not address the question of fresh pursuit by state or local law enforcement officers onto the reservation. The federal regulation does appear to assume that state or local authorities themselves cannot go onto the reservation directly and make an arrest. In general, I do not disagree with that conclusion. See 70 Op. Att'y Gen. 36, 38-40 (1981).

74 Op. Att'y Gen. 245, 257 (1985)
  It seems doubtful, however, that lack of state authority would be presumed in the fresh pursuit situation you describe involving an off-reservation offense over which the state unquestionably has exclusive jurisdiction. Cf. Rice, 463 U.S. at 726-33. Assuming this to be the case, the only remaining question is whether upholding the state's authority to make such arrests would "impair a right granted or reserved by federal law." Id. at 726.

74 Op. Att'y Gen. 245, 257 (1985)
  In answering that question, it is important to bear in mind whose rights are at issue. Traditionally, extradition is a right of the sovereign, in this case the state and the Menominee Tribe. Cf. Niederer, 72 Wis. 2d at 324. By analogy with federal cases concerning the scope of extradition, the failure of the tribal ordinance or federal regulation to address the fresh pursuit situation would not by itself pre-empt a state officer's otherwise lawful authority to make such an arrest. Burton, 245 U.S. at 315; cf. Chapman, 122 Wis. 2d at 217-18.

74 Op. Att'y Gen. 245, 257 (1985)
  There is, however, one case which does recognize tribal sovereignty as a bar to a state's jurisdiction in a fresh pursuit situation. Benally, 553 P.2d at 1270. Benally is partially distinguishable because the New Mexico fresh pursuit statute was limited to felony arrests and did not apply in that particular case. More importantly, the reasoning of the Benally decision is inconsistent with more recent cases like White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), and Rice which require a balancing of interests and that any applicable interest of the state be given weight. Rice, 463 U.S. at 720.

74 Op. Att'y Gen. 245, 257-258 (1985)
  Contrary to the result in Benally, there is no persuasive evidence of congressional intent to make individual Indians who flee to the reservation to escape imminent arrest exceptions to the fresh pursuit doctrine or immune from ordinary state arrest authority. Cf. Rice, 463 U.S. at 733-34. My primary conclusion, therefore, based on Rice and Webster, is that an arrest after fresh pursuit under the circumstances you have described does not impair Menominee tribal sovereignty over extradition matters and is not pre-empted by federal law. See also Fournier, 161 N.W.2d at 458; Old Elk, 552 P.2d at 1394; Little Light, 598 P.2d at 572; but see Benally, 553 P.2d at 1270; Turtle, 413 F.2d at 683.

74 Op. Att'y Gen. 245, 258 (1985)
  Even if one assumes that some aspect of Menominee tribal sovereignty is at least minimally impaired by a state officer's on-reservation arrest following a fresh pursuit, cf. Davis, 643 F.2d at 525 n.8, it is doubtful that the state is thereby deprived of personal jurisdiction over a defendant thus arrested. Id. at 527. The general rule, cited above, is that failure to observe established extradition procedures does not deprive a state of personal jurisdiction over a defendant. Frisbie, 342 U.S. at 522; Weddell, 636 F.2d at 214-15; Desjarlais, 73 Wis. 2d at 489-90.

74 Op. Att'y Gen. 245, 258 (1985)
  If the failure to comply with constitutional and statutory extradition requirements does not deprive a demanding state of jurisdiction, it is difficult to conclude that a state's failure to follow tribal extradition procedures would do so. As the Eighth Circuit has observed, in dicta:

74 Op. Att'y Gen. 245, 258 (1985)
[W]e are unable to find that the United States has by policy, by treaty, by statute or by court decision decreed [the state's] loss of personal jurisdiction over [the defendant] as a penalty for having arrested [him] in violation of the tribal extradition ordinance here involved.

74 Op. Att'y Gen. 245, 258 (1985)
Davis, 643 F.2d at 527.

74 Op. Att'y Gen. 245, 258 (1985)
  In conclusion, although the state is obliged generally to comply with Menominee tribal extradition procedures, I conclude that an arrest after fresh pursuit under the circumstances described does not impair tribal sovereignty and is not pre-empted by federal law. Even if an arrest in a particular case is made in violation of tribal extradition procedure, federal extradition law clearly suggests that the state is not thereby deprived of personal jurisdiction over the defendant. Nonetheless, in light of Chapman, 122 Wis. 2d at 211, tribal legislation on the hot pursuit issue would generally be controlling. For this and other reasons, this office will continue its efforts to work with the tribe to reach a mutually acceptable resolution of tribal-state fresh pursuit problems.

74 Op. Att'y Gen. 245, 258 (1985)
BCL:MAM

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

Destination-84   1   Although the terms "fresh pursuit" and "hot pursuit" are sometimes used interchangeably, "hot pursuit" is more frequently used as an example of an "exigent circumstance" which obviates the need to obtain a search or arrest warrant when an arrest is made within a private dwelling. See Welsh v. Wisconsin, 104 S. Ct. 2091 (1984), rev'g State v. Welsh, 108 Wis. 2d 319, 336, 321 N.W. 2d 245 (1982); Steagald v. United States, 451 U.S. 204, 221 (1981); United States v. Santana, 427 U.S. 38, 42-43 n.3 (1976). While the element of a chase is, of course, common to both concepts, the term "fresh pursuit" is more frequently applied when the chase occurs across jurisdictional boundaries.

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

  2   Section 976.07, Stats., enacted in 1982, authorizes the state to enter into an agreement for an essentially complementary arrangement for the extradition to the tribe of witnesses, fugitives and evidence. No formal agreement under section 976.07 has yet been reached.