AB628: Bill Text

2005 - 2006 LEGISLATURE

2005 Assembly BILL 628

August 30, 2005 - Introduced by Joint Legislative Council. Referred to Committee on State Affairs.

AB628,1,2 An Act to amend 165.92 (3) (b) 1.; and to create 165.92 (3) (c) of the statutes; relating to: the powers of tribal law enforcement officers under state law.

Analysis by the Legislative Reference Bureau

This bill is explained in the Note provided by the Joint Legislative Council in the bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

Joint Legislative Council prefatory note: This bill, developed by the Joint Legislative Council's special committee on state-tribal relations, addresses the liability of a law enforcement officer employed by an American Indian tribe or band in this state (a tribal law enforcement officer) when enforcing the laws of this state.

Background

Tribal law enforcement officers do not have the inherent power to enforce state laws but, in Wisconsin, may acquire this power in one of two ways. First, the state or a subdivision of the state may grant this power. Most commonly, a county sheriff will deputize qualified tribal law enforcement officers. Also, the Department of Natural Resources deputizes qualified wardens employed by a tribe or by the Great Lakes Indian Fish and Wildlife Commission as state conservation wardens.

Second, s. 165.92, stats., authorizes a tribal law enforcement officer to enforce the laws of this state with respect to any person within the boundaries of the tribe's reservation or off-reservation trust lands, if the officer and the tribe meet several conditions.

In particular, a tribal law enforcement officer may not enforce the laws of this state unless the governing body of the tribe adopts a resolution waiving the tribe's sovereign immunity to the extent necessary to allow the enforcement of liability for its officers' actions in the courts of this state, or adopts another resolution that the Department of Justice (DOJ) determines has substantially the same result.

The Bill

The bill provides an alternative to the waiver of sovereign immunity by the tribe that is currently required for a tribal law enforcement officer to exercise the powers allowed by s. 165.92. It allows the tribe to instead maintain liability insurance with a limit of at least $1,000,000 for any claim. It requires that the insurance policy provide that the insurer may not raise the defense of tribal sovereign immunity in defending a claim against the policy, up to the limits of the policy. This alternative applies only if the tribe has provided evidence of the required insurance to DOJ.

AB628, s. 1 Section 1. 165.92 (3) (b) 1. of the statutes is amended to read:

AB628,2,8 165.92 (3) (b) 1. No Except as provided in par. (c), no tribal law enforcement officer may exercise or perform the powers or duties described under sub. (2) (a) unless the governing body of the tribe that employs the officer adopts and has in effect a resolution under this paragraph. Except as provided in subd. 2., a resolution under this paragraph shall include a statement that the tribe waives its sovereign immunity to the extent necessary to allow the enforcement in the courts of this state of its liability under par. (a).

AB628, s. 2 Section 2. 165.92 (3) (c) of the statutes is created to read:

AB628,2,11 165.92 (3) (c) 1. As an alternative to a resolution under par. (b), the tribe may maintain insurance that does all of the following:

AB628,2,13 a. Covers the tribe for general liability for negligent acts and for tribal officials liability for acts under par. (a).

AB628,2,14 b. Has a limit of coverage not less than $1,000,000 for any claim.

AB628,2,16 c. Provides that the insurer, in defending a claim against the policy, may not raise the defense of sovereign immunity of the insured up to the limits of the policy.

AB628,3,4 2. This paragraph applies only if the tribe has presented evidence to the department of justice of the insurance under subd. 1. Upon receipt of evidence of insurance under this subdivision, the department of justice shall notify the sheriff of each county and the chief of police of each municipality in which the tribe has a reservation or trust land that the tribe has met this criterion for performing the powers and duties described under sub. (2) (a).

AB628,3,5 (End)