2009 - 2010 LEGISLATURE
April 14, 2009 - Introduced by Joint Legislative Council. Referred to Committee
on Education.
AB210,2,15 1An Act to amend 6.28 (2) (c), 7.30 (2) (am), 15.377 (4) (f), 15.57 (3), 16.971 (15),
216.972 (2) (b), 16.974 (2) and (3), 16.9785, 16.99 (2g), 20.505 (1) (is), 27.01 (7)
3(c) 10., 28.06 (1), 29.301 (1) (a), 30.74 (1) (a), 36.11 (36m), 38.001 (3) (a), 38.04
4(27), 38.14 (3) (a) and (bm), 39.41 (1) (bm), 39.41 (1m) (a) (intro.), (b), (c) 4. and
55., (e), (em), (g) and (j), 45.09 (2), 45.20 (2) (a) 1., (c) 1. and (d) 1., 46.275 (3r) (a)
63., 48.345 (12) (c), 48.355 (2) (c), 48.396 (1), 48.65 (2) (b), 48.78 (2) (b), 49.26 (1)
7(g) 2., 51.45 (4) (d), 103.23 (2) (intro.) and (a), 103.25 (3m) (c) and (5), 103.27 (3),
8103.275 (8), 103.67 (2) (c), 103.71 (1) (b), 115.28 (7) (b) and (e) 1. and (11) (intro.),
9115.28 (53), 115.34 (2), 115.341, 115.343 (1), 115.345 (7m), 115.36 (1) and (2) (a),
10(b) and (d) 3., 115.365 (1), (2) (a) and (b) and (3), 115.368 (1) and (2) (a) and (b),
11115.42 (1) (a) 2., 115.42 (2) (a) 2., 115.52 (3) (b) 1., 115.52 (3) (b) 2., 115.52 (3) (b)
1210., 115.525 (3) (b) 2., 116.01, 116.032 (1) and (3) (a) (intro.), 118.025, 118.07 (3),
13118.08 (1), 118.125 (2) (n), 118.125 (4), 118.127 (2), 118.145 (3) and (4), 118.15
14(1) (a), 118.15 (1) (d) 4., 118.153 (1) (b), 118.16 (2) (e), 118.255 (2), 118.257 (1) (d),

1118.29 (2) (a) (intro.) and 3. and (b) and (3), 118.291 (1g) (b), 118.295, 120.18 (1)
2(a) 2. and (s), 121.05 (1) (a) 7., 121.76 (1) (a), 121.76 (2) (c), 121.78 (4), 125.09
3(2) (a) 2., 125.68 (3) (intro.), 252.15 (1) (ab) and (2) (a) 7. a., 255.30 (4), 301.45
4(1d) (c), 301.46 (4) (a) 1., 343.06 (1) (c), 343.07 (1c), 343.16 (1) (c) 3., 447.06 (2)
5(a) 2., 895.48 (1m) (a) (intro.), 895.515 (2), 938.34 (7d) (c), 938.34 (14t), 938.342
6(1r), 938.355 (2) (c), 938.396 (1) (b) 2., 938.396 (1) (c) 3. (intro.), a., c. and d. and
74., 938.396 (2g) (m), 938.78 (2) (b), 939.632 (1) (a) and (d) 3., 944.21 (8) (b) 2.,
8948.095 (1) (a), 948.11 (4) (b) 2., 948.50 (2) (a), 948.61 (1) (b), 961.49 (1m) (b) 6.
9and 961.495; and to create 15.377 (8) (c) 14., 16.972 (1) (cm), 38.01 (9m), 39.41
10(1) (br), 45.09 (1) (d), 48.02 (18m), 48.345 (12) (a) 5., 49.26 (1) (a) 2. bm., 103.21
11(7), 103.64 (6), 115.001 (15m), 118.16 (2) (f), 118.162 (1) (am) and (m), 118.29
12(4m), 118.291 (2) (c), 121.78 (5), 938.02 (18e), 938.34 (7d) (a) 5. and 938.396 (1)
13(b) 2m. of the statutes; relating to: providing benefits and protections to tribal
14schools and tribal school pupils and staff similar to those provided to private
15schools and private school pupils and staff and making an appropriation.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes 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 was prepared for the Joint
Legislative Council's Special Committee on State-Tribal Relations.
Current Law
Private Schools
Under current law, a "private school" is defined in s. 115.001 (3r), stats., for the
purposes of the K-12 education statutes (chs. 115 to 121, stats.) as an institution with a
private educational program that: (1) meets all of the criteria under s. 118.165 (1), stats.;

or (2) is determined to be a private school by the State Superintendent of Public
Instruction (State Superintendent) under s. 118.167, stats., because evidence is
presented that it meets or exceeds the criteria in s. 118.165 (1), stats. Those criteria are
that the educational program: (1) has as its primary purpose providing private or
religious-based education; (2) is privately controlled; (3) provides at least 875 hours of
instruction in each school year; (4) has a sequentially progressive curriculum of
fundamental instruction in reading, language arts, mathematics, social studies, science,
and health; (5) is not operated to avoid or circumvent the compulsory attendance laws;
and (6) has its pupils return annually to their homes for at least two months of summer
vacation or the institution is licensed as a child welfare agency.
Current law imposes certain requirements on private schools and provides certain
benefits and protections to private schools and private school pupils and staff. A tribally
operated school is not a private school, since the school is controlled by tribal government,
rather than a private entity.
Tribally Operated Schools
Under current Wisconsin statutes, tribally operated schools are dealt with only in
subch. IV, ch. 115, stats., relating to the American Indian language and culture education
program. In that subchapter, an "alternative school" is defined as "any nonsectarian
private school or tribally operated school in this state which complies with the
requirements of 42 USC 2000d [relating to prohibiting exclusion from participation,
denial of benefits, or discrimination based on race, color, or national origin] and in which
at least 75% of the pupils enrolled are American Indians". [s. 115.71 (1), stats. (emphasis
Subchapter IV, ch. 115, then provides that any school district enrolling American
Indian pupils or any "alternative school" may, after developing a plan containing certain
elements and appointing a parent advisory committee, establish, on a voluntary basis,
an American Indian language and culture education program which may contain certain
elements. These schools are required to keep certain records, and the State
Superintendent is required to periodically assess the needs of the program and evaluate
available resources and programs. However, the programs of alternative schools can be
evaluated only with the permission of the alternative school [s. 115.74 (1) (b), stats.]; and
the assessment and evaluation can be "performed on Indian reservations and in other
Indian communities recognized by the federal government only in conjunction with, or
with the permission of, the respective tribal governments". [s. 115.74 (3), stats.]
A tribally operated school does not need authorization from the state to create an
educational program related to American Indian language and culture. Rather, subch.
IV, ch. 115, including its requirements to keep records, was enacted in connection with
providing state categorical aid to a school district or alternative school that provided a
program that met the criteria in subch. IV, ch. 115. State aid for such programs was
eliminated by 2003 Wisconsin Act 33.
Tribally Operated Schools in Wisconsin
Currently, three schools in Wisconsin come under the tribally operated schools
component of the "alternative school" definition in s. 115.71 (1), stats. They are:
Menominee Tribal School; Oneida Nation of Wisconsin Schools; and Lac Courte Oreilles
Ojibwe School. These schools have contracts with and are funded, in full or in part, by
the U.S. Department of Interior, Bureau of Indian Affairs (BIA). (The Bad River Band
of Lake Superior Chippewa Indians previously operated the Mashkiisiibii Tribal School,
but that school no longer exists. The Waadookodaading Charter School is, in part,
supported by funds contributed by the Lac Courte Oreilles Band of Lake Superior
Chippewa Indians. However, it is a public charter school, chartered by the Hayward
School District. Thus, the bill does not affect it.)

Currently it appears that one school in Wisconsin meets the "nonsectarian private which at least 75% of the pupils enrolled are American Indians" component of
the "alternative school" definition in s. 115.71 (1), stats. It is the Indian Community
School of Milwaukee, Inc., which is a privately owned and operated corporation,
controlled by a board of directors. It appears that the state statutes dealing with private
schools already apply to this school, and this bill does not affect it.
Authority of the State with Regard to Tribally Operated Schools
In general, state civil regulatory laws do not apply to a tribe or a member of that
tribe on the tribe's reservation or off-reservation trust land unless an act of Congress, a
treaty, or case law (that is, decisions by the courts) provides that the state law is
applicable. Most K-12 education laws likely would be considered by the courts to be civil
regulatory laws. It appears that neither an act of Congress nor any treaty has authorized
the state to apply its civil regulatory education laws to a tribal school that is located on
a tribe's reservation or off-reservation trust land. As for whether case law does so, court
decisions suggest that, if a matter were litigated, a court would apply a balancing of
interests test and hold that a state civil regulatory education law applies to a tribal school
only if the state interests outweigh the tribal and federal interests. That analysis
depends on the facts surrounding each individual statute; thus, there is no universal
answer as to whether a state civil regulatory law applies to a tribal school.
However, in general, it appears that, with respect to most state K-12 education
laws, the state does not have authority to impose such laws on tribal schools. Moreover,
a tribe may choose to assert sovereign immunity if a legal action were filed against the
tribal school or tribal school officials to enforce any such law.
Nonetheless, a state may choose to provide funding or other benefits to a tribal
school and may condition such funding or benefits on meeting certain prerequisites.
The bill defines a "tribal school" in s. 115.001 (15m), stats., as an institution with
an educational program that has as its primary purpose providing education in any grade
or grades from kindergarten to 12 and that is: (a) controlled by the elected governing body
of a federally recognized American Indian tribe or band in Wisconsin; (b) jointly controlled
by the elected governing bodies of two or more federally recognized American Indian
tribes or bands in Wisconsin; (c) controlled by the tribal educational authority established
by a federally recognized American Indian tribe or band in Wisconsin; or (d) controlled
by a tribal educational authority established jointly by two or more federally recognized
American Indian tribes or bands in Wisconsin. That definition then applies in chs. 115
to 121 (statutes relating to K-12 education) under s. 115.001 (intro.), stats. The bill then
uses the same definition by cross-reference in statutes outside chs. 115 to 121, stats.
Private School References-Benefits
The bill amends statutes that refer specifically to private schools, private school
pupils, or private school staff and provide a benefit or protection to them, with the
exception of statutes relating to: pupil transportation; special education; eligibility for
bonding for certain building projects through the Wisconsin Health and Educational
Facilities Authority; and statutes in ch. 119, stats., that refer to private schools (since ch.
119 relates only to the Milwaukee Public Schools). In general, the amendments add
references to tribal schools, tribal school pupils, or tribal school staff in those statutes.
Private School References-Benefit Linked to Requirement
In some cases, the bill includes language relating to tribal schools that is not
identical to current statutes relating to private schools. These relate to statutes in which
a requirement is integrally linked to a benefit provided--for example, statutes allowing

a private school to receive certain confidential records but prohibiting redisclosure of the
records. For those statutes, the bill generally extends the benefit to a tribal school that
chooses to comply with the required provision.
Private School References-Requirements Not Imposed on Tribal Schools
With respect to statutes that explicitly impose a requirement on private schools
unrelated to a benefit, the bill does not add a reference to tribal schools. Such statutes
include requirements to: make a report to the Department of Public Instruction (DPI)
about enrollment; report to DPI charges and convictions of certain crimes and dismissals
and resignations related to immoral conduct of a person licensed by DPI and employed
by the school; display the flag and offer the pledge of allegiance or national anthem; have
a first aid kit; conduct fire, tornado, or other hazard drills and file reports on those drills
with the Department of Commerce and chief of the local fire department; distribute
information about meningococcal disease; annually inform professional staff about
resources available regarding suicide prevention; establish school safety zones; prohibit
the use of a pupil's Social Security number as a pupil identification number; have periodic
lead inspections in kindergarten; and abide by restaurant regulations if food is brought
in under contract.
Generic School References
The bill amends several statutes that refer generically to schools without explicitly
referring to public schools, private schools, or tribal schools to make clear that if a benefit
or protection applies to the school, school pupils, and school staff, the benefit also applies
to tribal schools, tribal school pupils, and tribal school staff. The bill does not amend
statutes that impose a requirement generically on schools, including private schools, to
impose the requirement on tribal schools, for example, statutes relating to excluding
children who have not met the immunization or waiver of immunization requirements.
Whether such requirements apply to tribal schools is an issue to be resolved by the courts.
The benefits and protections provided in the bill to tribal schools, tribal school
pupils, and tribal school staff are briefly listed below in each of these categories. Each
listing is followed by a reference to the Section number in the bill. The provisions of the
bill are further explained in the Note following each Section of the bill. [In some cases,
a benefit or protection could have been included in more than one category because of
overlapping considerations (for example, permitting disclosure to tribal schools of certain
confidential police records could ultimately benefit the tribal school, tribal school pupils,
and tribal school staff). However, each provision in the bill is listed in only one category
below, namely, what appeared to be the most pertinent category.]
Benefits or Protections Provided to Tribal Schools
The bill provides the following benefits or protections to tribal schools:
1. Permits a tribal school to ask the municipal clerk to conduct voter registration
at the high school. [Section 1 .]
2. Permits representatives of tribal schools to serve on the DPI Council on Special
Education. [Section 3 .]
3. Permits the Governor to nominate a representative to the Educational
Communications Board who may represent either a tribal school or private school.
[Section 5.]
4. Requires the Department of Administration (DOA) to include tribal schools in
the educational telecommunication access program under s. 16.997, Stats., which

provides access to data lines and video links under certain conditions to certain
educational agencies (including private schools) at certain costs. This program is the part
of the Technology for Educational Achievement (TEACH) program that applies to private
schools. The bill permits DOA to provide telecommunications services to tribal schools
that DOA considers appropriate and permits DOA to charge for such services. [Sections
6, 7 , 8, 9 , 11, and 12.]
5. Exempts a motor vehicle transporting tribal school pupils to a state park or
recreational area from the requirement to display a state park admission receipt.
[Section 13.]
6. Extends to tribal schools the requirement that the Department of Natural
Resources (DNR) create boating safety courses and offer them in cooperation with, among
others, schools. [Section 16 .]
7. Requires the Board of Regents of the University of Wisconsin (UW) System to
direct the UW schools of education to work with tribal schools, among others, on
researching improving school safety and reducing school discipline problems and to share
with tribal schools the results of such research. [Section 17.]
8. Provides that the purposes of the Technical College System (TCS) include
contracting, coordinating, and cooperating with tribal schools; requires the TCS Board
to work with tribal schools on researching improving school safety and reducing school
discipline problems and to share with tribal schools the results of such research; and
authorizes a technical college district board to contract with tribal schools, among others,
to provide educational services or fiscal and management services. [Sections 18, 19, 20 ,
and 21.]
9. Requires the Department of Veterans Affairs to award a certificate of
achievement and appreciation to a veteran who completes 20 hours of volunteer service
in a tribal school in a school term if certain conditions are met. [Sections 25 and 26.]