LRB-3161/1
CMH:kjf:rs
2005 - 2006 LEGISLATURE
August 24, 2005 - Introduced by Joint Legislative Council. Referred to
Committee on Judiciary, Corrections and Privacy.
SB297,1,2
1An Act to amend 165.92 (3) (b) 1.; and
to create 165.92 (3) (c) of the statutes;
2relating 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.
SB297, s. 1
1Section
1. 165.92 (3) (b) 1. of the statutes is amended to read:
SB297,2,82
165.92
(3) (b) 1.
No Except as provided in par. (c), no tribal law enforcement
3officer may exercise or perform the powers or duties described under sub. (2) (a)
4unless the governing body of the tribe that employs the officer adopts and has in
5effect a resolution under this paragraph. Except as provided in subd. 2., a resolution
6under this paragraph shall include a statement that the tribe waives its sovereign
7immunity to the extent necessary to allow the enforcement in the courts of this state
8of its liability under par. (a).
SB297, s. 2
9Section
2. 165.92 (3) (c) of the statutes is created to read:
SB297,2,1110
165.92
(3) (c) 1. As an alternative to a resolution under par. (b), the tribe may
11maintain insurance that does all of the following:
SB297,2,1312
a. Covers the tribe for general liability for negligent acts and for tribal officials
13liability for acts under par. (a).
SB297,2,1414
b. Has a limit of coverage not less than $1,000,000 for any claim.
SB297,2,1615
c. Provides that the insurer, in defending a claim against the policy, may not
16raise the defense of sovereign immunity of the insured up to the limits of the policy.
SB297,3,417
2. This paragraph applies only if the tribe has presented evidence to the
18department of justice of the insurance under subd. 1. Upon receipt of evidence of
1insurance under this subdivision, the department of justice shall notify the sheriff
2of each county and the chief of police of each municipality in which the tribe has a
3reservation or trust land that the tribe has met this criterion for performing the
4powers and duties described under sub. (2) (a).
