Appeals from orders of the Circuit Court for Menominee-Shawano Counties: Thomas G. Grover, Judge.
Foley, P.j., Dean and Cane, JJ.
The opinion of the court was delivered by: Cane
Bernard Smith appeals from orders *fn1 denying his motion to dismiss complaints filed by Richard L. Sanapaw and Menominee Tribal Enterprises for lack of subject matter jurisdiction. The sole issue raised on appeal is whether the circuit court erroneously concluded that it had subject matter jurisdiction concurrent with the Menominee Indian tribal court over civil causes of action stemming from an incident occurring on the Menominee Indian Reservation and involving enrolled members of the Menominee Indian Tribe. Because we conclude that whether the circuit court has concurrent subject matter jurisdiction depends on whether Smith was a "non-Indian" for jurisdictional purposes at the time the action was commenced, we reverse and remand for a determination of that issue.
On November 3, 1981, Sanapaw filed a complaint against Smith in circuit court alleging that he suffered injuries from a battery committed by Smith. Sanapaw's employer, Menominee Tribal Enterprises, also filed a complaint against Smith to recover damages for temporary disability payments it made to Sanapaw. Smith filed motions to dismiss the complaints on the ground that the circuit court lacked subject matter jurisdiction over causes of action arising from an incident involving Indians and occurring on an Indian reservation. In support of these motions, Smith alleged that both he and Sanapaw are enrolled members of the Menominee Indian Tribe and that the alleged assault and battery occurred on the Menominee Indian Reservation. Smith therefore contends that the tribal court has exclusive jurisdiction over the causes of action.
The circuit court determined that Smith's residence at the time of the alleged assault and battery was dispositive of the jurisdictional issue. The court found that at the time of the alleged incident, Smith resided in Shawano County and not on the Menominee Indian Reservation. The court therefore concluded that it had concurrent subject matter jurisdiction over the matters raised in the complaints.
The United States Supreme Court has traditionally recognized that Indian tribes possess attributes of sovereignty over their territory and members, which includes the power to regulate their internal and social relations. See, e.g., United States v. Mazurie, 419 U.S. 544, 557 (1975); Worcester v. Georgia, 6 Pet. 515, 557 (1832). The notion of Indian sovereignty has resulted in the imposition of jurisdictional limits on the reach of state law over Indian affairs. See McClanahan v. State Tax Commission, 411 U.S. 164, 171 (1973).
The Indian sovereignty doctrine has undergone significant evolution due to changed circumstances affecting the status of Indians vis-a-vis the states. *fn2 The trend has been away from the notion of inherent sovereignty as a bar to state jurisdiction over Indian affairs, and toward reliance on federal preemption. *fn3 Id. at 172. The Indian sovereignty doctrine remains relevant, however, as a backdrop against which applicable treaties and federal statutes must be read. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980); McClanahan, 411 U.S. at 172.
In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between state and tribal court jurisdiction has depended, absent a governing act of Congress, on "whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them." Fisher v. District Court, 424 U.S. 382, 386 (1976), quoting Williams v. Lee, 358 U.S. 217, 220 (1959). The United States Supreme Court has held that at least this same standard must be applied to cases involving only Indians. Fisher, 424 U.S. at 386. The Court has also recognized that even on the reservation, state laws may be applied unless that would interfere with reservation self-government or impair a right granted or reserved by federal law. Organized Village of Kake v. Egan, 369 U.S. 60, 75 (1962).
In resolving the jurisdictional conflict in this case, we first consider whether there is applicable federal law or policy that preempts the concurrent state court subject matter jurisdiction. In 1953, Congress enacted Public Law 280, *fn4 which granted to Wisconsin civil and criminal jurisdiction overall Indian tribes in the state except the Menominee Tribe. On June 17, 1954, Congress enacted the Menominee Termination Act, *fn5 which provided for termination of federal supervision of the Menominee Tribe. In August, 1954, Congress amended Public Law 280 to place the Menominee Tribe within the provisions of that law. *fn6 The Menominee Termination Act was subsequently repealed by the Menominee Restoration Act, *fn7 however, and on February 20, 1976, the United States accepted the retrocession of state jurisdiction that the State of Wisconsin had exercised over the Menominee Tribe. *fn8
Smith argues that because of the restoration of the Menominee Tribe and the retrocession of state jurisdiction under Public Law 280 over the tribe and its members, the federal government has preempted state jurisdiction over the matters alleged in the plaintiffs' complaints. Smith also asserts that state jurisdiction is lacking because the federal government and the Menominee Tribe have not consented to the state's assumption of jurisdiction pursuant to 25 U.S.C. § 1322(a). *fn9
From the language of Public Law 280 and 25 U.S.C. § 1322(a), it is unclear whether the jurisdiction over Indian affairs that the federal government retains but may grant to the states, and to which Indian tribes consent, extends to enrolled tribal members who reside off the reservation. Both enactments speak of jurisdiction over causes of action between Indians or to which Indians are parties, which arise in Indian country. Although "In dian country" is statutorily defined elsewhere, *fn10 the term "Indian" is not defined for purposes of these provisions.
Other jurisdictions that have considered jurisdictional conflicts between state and tribal courts have generally held that a state court has no jurisdiction over civil actions arising from an incident on the reservation and involving tribal members who reside on a reservation unless the federal government has granted such jurisdiction under Public Law 280 or 25 U.S.C. § 1322(a), and the affected tribe has consented under 25 U.S.C. § 1322(a). See, e.g., Sigana v. Bailey, 164 N.W.2d 886, 891 (Minn. 1969); Malaterre v. Malaterre, 293 N.W.2d 139, 143 (N.D. 1980). In Williams v. Lee, 358 U.S. 218, 220 (1959), the United States Supreme Court stated that Congress has acted consistently under the assumption that states have no power to regulate the affairs of Indians on the reservation. Similarly, the Supreme Court has acknowledged that 25 U.S.C. § 1322(a) grants the consent of the United States to states wishing to assume civil jurisdiction over reservation Indians. McClanahan, 411 U.S. at 177. *fn11 These cases suggest that, absent a federal grant of jurisdiction under Public Law 280 or 25 U.S.C. § 1322(a), and tribal consent to state jurisdiction under 25 U.S.C. § 1322(a), state court jurisdiction over an incident arising within "Indian country" and involving enrolled tribal members who reside on a reservation is federally preempted.
In proceedings before the circuit court, the parties did not dispute that the alleged assault and battery occurred within the Menominee Reservation boundaries. The court determined, however, that state jurisdiction was not federally preempted because Smith resided off the reservation at the time of the alleged incident. The court essentially equated Smith's status as a state resident with that of a non-Indian.
We conclude that a determination of whether state court jurisdiction in this case is federally preempted because of Public Law 280 or 25 U.S.C. § 1322(a) depends on findings concerning Smith's status as either an Indian or a non-Indian for jurisdictional purposes. Courts in other jurisdictions have indicated that one who is recognized racially as an Indian may nevertheless be recognized as a non-Indian or "emancipated" Indian for jurisdictional purposes. See, e.g., State v. Attebery, 519 P.2d 53 (Ariz. 1974); State v. Allan, 607 P.2d 426, 428 (Idaho 1980). *fn12 A determination of whether an individual may be considered a non-Indian for jurisdictional purposes depends on the totality of circumstances. See Allan, 607 P.2d at 428. ...