Likewise, the language of Wis. Stat. § 59.28(2) only purports to give county law enforcement agencies the power to assist or request assistance “as provided in” Wis. Stat. § 66.0313. In other words, Wis. Stat. § 59.28(2) cannot be read as granting any power that is not contained in Wis. Stat. § 66.0313. It follows, once again, that any potential conflict must be resolved in favor of Wis. Stat. § 66.0313 which, for the reasons already given, does not apply to tribal law enforcement agencies.
For all of the above reasons, it is my opinion that tribal law enforcement agencies are not included within the coverage of Wis. Stat. § 66.0313.
The second issue raised in your letter is whether there is any tension between the various statutes discussed above and Wis. Stat. § 165.90, which provides for written agreements establishing cooperative law enforcement programs between tribal and county law enforcement agencies. I see no such tension. There is nothing in the language of Wis. Stat. § 165.90 that would preclude a county and a tribe that has a reservation located wholly or partially within that county from including terms related to mutual assistance requests in a written agreement under that statute. More generally, Wis. Stat. § 66.0301, allows any municipality in the state (including a county) to “contract with other municipalities and with federally recognized Indian tribes and bands in this state, for the receipt or furnishing of services or the joint exercise of any power or duty required or authorized by law.” Wis. Stat. § 66.0301(2).
The permissible terms of such an intergovernmental agreement are limited, however, by the statutory provision that “[i]f municipal or tribal parties to a contract have varying powers or duties under the law, each may act under the contract to the extent of its lawful powers and duties.” Id. In other words, an intergovernmental agreement between a tribe and a Wisconsin municipality cannot authorize a tribal or municipal agency to act outside the limits of its usual jurisdiction. In my opinion, the same jurisdictional principle would apply to agreements establishing tribalcounty law enforcement programs under Wis. Stat. § 165.90. Accordingly, in any intergovernmental agreement entered under either Wis. Stat. §§ 66.0301 or 165.90, tribal and county law enforcement agencies could agree to provide mutual assistance only in circumstances in which the assisting law enforcement officers would have legal authority to act deriving from some source other than the intergovernmental agreement itself. For example, Public Law No. 280, 67 Stat. 588-89 (1953), codified at 18 U.S.C. § 1162 and 28 U.S.C. § 1360, allows Wisconsin law enforcement agencies (including county and other municipal agencies) to exercise jurisdiction over all crimes committed in Indian country within this state (except the Menominee reservation). 18 U.S.C. § 1162(a); State v. Webster, 114 Wis. 2d 418, 436-37, 338 N.W.2d 474 (1983). Accordingly, county law enforcement officers in Wisconsin have jurisdiction to assist tribal law enforcement officers with criminal law matters in reservation territory located within their own county. In addition, Wis. Stat. § 175.40 authorizes any peace officer to act anywhere in the state under the specific, limited circumstances enumerated in that statute—e.g., when in fresh pursuit, on border highways, and when responding to certain dangerous emergency situations or a felony in progress. Tribal law enforcement officers do not have an equally broad grant of jurisdiction to act outside tribal territory. As previously noted, Wis. Stat. § 165.92 generally authorizes qualified tribal officers to exercise state law enforcement powers only within their reservation. A tribal officer who is empowered to act under Wis. Stat. § 165.92, however, is a “peace officer” within the meaning of Wis. Stat. § 175.40 and thus may act outside his or her reservation under the specific, limited circumstances enumerated in that statute. See Wis. Stat. § 175.40(1)(c). In addition, sheriffs may call to their aid such persons or powers of their respective counties as they consider necessary for the purpose of preserving the peace therein. Wis. Stat. § 59.28(1). Sheriffs also have statutory authority to appoint deputies, consistent with any other applicable legal requirements. See Wis. Stat. § 59.26(1)-(2). Accordingly, a sheriff could, in appropriate circumstances, call for the aid of tribal officers within the county or cross-deputize tribal officers, thereby vesting them with county jurisdiction.
The third issue raised in your letter is whether the provision of assistance under Wis. Stat. § 59.28 is mandatory. The repeated use of the word “may” in Wis. Stat. § 59.28(2) indicates that decisions to request or provide law enforcement assistance under that statute are discretionary, and not mandatory, in nature. As noted in response to your first question, however, it is my opinion that the mutual assistance power granted to county law enforcement agencies by Wis. Stat. § 59.28(2) is not one of the powers conferred upon tribal law enforcement officers under Wis. Stat. § 165.92(2)(a). This does not mean that tribal law enforcement officers never have the power to provide assistance to county officers, but it does mean, as already noted, that such assistance may be provided only in circumstances in which the assisting tribal officers have legal authority to act derived from some source in addition to the county’s request for assistance itself. Tribal and county agencies with a history of cooperating consistent with their respective jurisdictions are encouraged to continue their established practices. I am unaware of any provision of law, however, that would make county-tribal mutual assistance legally mandatory.
The fourth issue raised in your letter is whether, if Wis. Stat. § 66.0313 does not apply to tribal law enforcement agencies, there are other means for county and tribal law enforcement agencies to engage in mutual assistance, either by establishing a county-tribal law enforcement program under Wis. Stat. § 165.90 or in some other way. As I have already discussed in response to the second issue above, an intergovernmental agreement under Wis. Stat. § 66.0301 or a county-tribal cooperative law enforcement agreement under Wis. Stat. § 165.90 may include provisions for mutual assistance in circumstances in which the assisting law enforcement officers have legal authority to act deriving from some source other than the agreement itself—e.g., state officers acting pursuant to Public Law No. 280 or state or tribal officers acting pursuant to Wis. Stat. § 175.40 or to a call for assistance or cross-deputization by a sheriff. The fifth issue raised in your letter is whether the provisions in Wis. Stat. § 66.0313 related to the payment of defense costs or judgments against a law enforcement officer under Wis. Stat. §§ 895.35 and 895.46 also apply to tribal law enforcement agencies and their officers. The answer given above to your first question requires that this question be answered in the negative. Because Wis. Stat. § 66.0313 does not apply to tribal law enforcement agencies, it follows that the portions of that statute dealing with the payment of defense costs or judgments under Wis. Stat. §§ 895.35 and 895.46 also do not apply to those agencies.
In addition, the plain language of Wis. Stat. § 895.35(1) itself expressly applies only to officers of a city, town, village, school district, or county. Likewise, the plain language of Wis. Stat. § 895.46(1) applies only to public officers or employees of “the state or [a] political subdivision [of the state].” Tribal law enforcement officers, as such, are not officers of a city, town, village, school district, or county. Nor are they officers or employees of the state or a political subdivision of the state. By their own terms, therefore, Wis. Stat. §§ 895.35 and 895.46 do not apply to tribal law enforcement agencies and their officers. Accordingly, it would be advisable for any mutual assistance agreement between tribal and non-tribal law enforcement agencies to include provisions expressly addressing the payment of defense costs or judgments against tribal and non-tribal law enforcement officers who act pursuant to that agreement.
The sixth issue raised in your letter is whether Public Law No. 280 gives a county sheriff in Wisconsin the power to enforce county and municipal ordinances, in addition to state statutes, on a tribal reservation. It is unclear whether you are asking only about criminal law enforcement jurisdiction, which is governed by 18 U.S.C. § 1162, or whether you are also asking about civil jurisdiction, which is governed by 28 U.S.C. § 1360. Such a request should ordinarily include relevant facts on which a legal analysis may rest. More generally, questions submitted to the Attorney General’s Office from district attorneys or county corporation counsel should include the requester’s own conclusion on the question presented and should set forth the reasoning upon which that conclusion is based, including an analysis of all relevant authorities that support or oppose that conclusion. See 77 Op. Att’y Gen. Preface (1988). Absent relevant facts and your preliminary analysis and conclusions, I cannot address this issue but will be happy to do so should this information be part of a follow-up request.
Sincerely,
J.B. Van Hollen
Attorney General
JBVH:TCB:rk
x:\public\van hollen\wiensch.doc
