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    Tribal and Local Governments: Jurisdictional Challenges within Shared Spaces

    Wisconsin’s Indian reservations are home to both tribal members and nonmembers and are checkerboards of land-ownership patterns. Determining which jurisdiction’s civil and criminal laws apply to particular individuals and pieces of land continues to be a challenge despite a long history of litigation and legislative enactments.

    Rebecca M. Webster

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    fence in winterThe concepts of shared governance and pooling resources have gained much attention in recent years. Often standing in the way of cooperation is the inability of local governments to regulate beyond their borders.1 While this area of law is well established and generally predictable with respect to local governments, the same cannot be said for instances when tribal governments are involved.2

    With a focus on Wisconsin, this article briefly outlines the complex jurisdictional issues that arise when a tribal government and a local government exercise various levels of regulatory jurisdiction within an Indian reservation. Each government has a legitimate interest in protecting its jurisdictional authority; however, the path to determine the extent of that authority often has been paved with costly litigation. Despite the cost in time and money, the pursuit of jurisdictional certainty through the courts is riddled with inconsistencies and unanswered questions. Because this area of law is not well settled, it can be difficult for governments to come to an understanding of their respective jurisdictional limitations3 and therefore, to form cooperative relationships.4

    Understanding the Landscape

    Indian reservations throughout Wisconsin are home to both tribal members and nonmembers.5 On these reservations, there is often a mix of tribal fee land, tribal trust land, tribal member fee land, tribal member trust land, and nonmember fee land.6 This land-ownership pattern is often referred to as a checkerboard.7 There is also often a mix of tribal and local governments exercising some level of jurisdiction over the people and the land.

    When determining which government has jurisdiction over a particular issue, courts consider a number of factors, including but not limited to 1) the identity of the party over whom jurisdiction is asserted, 2) the location of the party’s activities including ownership status of land, 3) the party’s relationship to the tribe and tribal members, 4) the nature of the tribal interests at stake, 5) the nature of any state interests at stake, and 6) provisions of relevant federal laws and treaties.8

    It is difficult to obtain reliable information about land ownership and demographics on Indian reservations. For example, the Wisconsin State-Tribal Relations Initiative compiles information received from tribes on its website. One statistic includes the amount of land that is “considered fee land.” However, it is not clear whether the tribe, tribal members, or nonmembers own the fee land.

    Additionally, the 2011-2012 Wisconsin Legislative Briefing Book contains a chart of how many enrolled members each tribe has, the counties the reservations are located in (but not the town, village, or city), and how many acres are held in trust for each tribe.9 In contrast, the 2015-2016 Wisconsin Legislative Briefing Book contains an updated chart but deleted the columns containing trust land figures.10 It is not clear what prompted this change, but it might be due to the lack of reliable information on tribal member and tribal government fee land figures.11

    This article focuses on statutes and case law that affect both limits of tribal jurisdiction and limits on state jurisdiction over activities within the boundaries of Indian reservations. This article also discusses the ways in which different courts have come to different conclusions with respect to jurisdiction over individuals, over the land, and over activities on the land.12

    Limits on Tribal Jurisdiction

    Unless limited by treaty or statute, Indian tribes retain broad inherent civil jurisdiction over tribal members. For example, tribes retain their inherent power to determine tribal membership,13 regulate domestic relations among tribal members,14 prescribe rules for the inheritance of property,15 and prosecute tribal members for violations of tribal law.16

    Tribal jurisdiction over nonmembers may exist in one of the following four circumstances.17 First, tribes have the ability to regulate nonmember conduct on tribal land. In Water Wheel, the Ninth Circuit Court of Appeals discussed a tribe’s ability to regulate nonmember conduct when that nonmember leased land from the tribe. The court explained: “In considering the extent of a tribe’s civil authority over non-Indians on tribal land, we first acknowledge the longstanding rule thatIndian tribes possess inherent sovereign powers, including the authority to exclude unless Congress clearly and unambiguously says otherwise.” In short, the court held that the power to exclude individuals who are not Indians from tribal land includes the power to regulate them, unless Congress says otherwise.18

    Second, tribes can regulate nonmembers when authorized to do so by Congress. For example, under 42 U.S.C. § 7410, part of the Clean Air Act (CAA), Indian tribes are authorized to submit Tribal Implementation Plans (TIPs), subject to Environmental Protection Agency (EPA) approval, which provide for the implementation, maintenance, and enforcement of national air-quality standards, applicable to all land located on the tribe’s reservation, notwithstanding the issuance of any patent and including rights-of-way running through the reservation. The EPA has determined that these provisions of the CAA constitute a delegation of federal authority to Indian tribes to regulate air quality.19

    On the other hand, the Clean Water Act (CWA), 33 U.S.C. §1377(e),  authorizes the EPA to treat a tribe as a state for purposes of promulgating water quality standards and requiring permits for discharges into tribal waters on receipt of an application from a tribe subject to EPA approval. The EPA has determined that this provision does not delegate federal authority to tribes but instead authorizes treatment as a state when tribes otherwise possess inherent authority.20

    The third and fourth sets of circumstances when tribes have jurisdiction over nonmembers on nontribal land come from the U.S. Supreme Court’s decision in Montana v. United States. The Court explained that tribes have jurisdiction when 1) a non-Indian has entered into a consensual relationship with the tribe or a tribal member, or 2) tribal regulation is necessary to protect tribal self-government and internal tribal relations.21 With few exceptions,22 the U.S. Supreme Court has consistently decided against tribal regulation and in favor of state and local regulation over nonmembers,23 and in only one instance has upheld tribal regulation of nonmembers on nontribal property.24

    Limits on State Jurisdiction

    With respect to state jurisdiction over tribal members on Indian reservations, the U.S. Supreme Court explained, “state laws generally are not applicable to tribal Indians on an Indian reservation except where Congress has expressly provided that State laws shall apply.”25 For example, with respect to the special area of taxation, the general rule is that states do not have the authority to tax reservation Indians unless Congress authorized the tax.26

    States cannot impose income taxes on tribal members who live on a reservation for income earned solely on the reservation,27 personal property tax on tribal members for property located on the reservation,28 or other taxes when the legal incidence of the tax falls on a tribe or tribal member on the reservation.29 States and local governments may also lack authority to collect personal property taxes from nonmember businesses on tribal trust property.30

    Federal Grant of Jurisdiction to the States – Public Law No. 83-280. Public Law No. 83-280 (hereinafter Public Law 280) is a prominent example of Congress expressly providing that certain state laws apply.31 Public Law 280 granted several named states, including Wisconsin, criminal jurisdiction over offenses committed by tribal members on Indian reservations and jurisdiction over civil causes of action arising on the reservation and involving tribal members. In Bryan v. Itasca County, the U.S. Supreme Court determined that Public Law 280 granted states criminal jurisdiction over tribal members, but Public Law 280did not grant states the ability to impose their civil regulatory laws on tribal governments or on tribal members on Indian reservations.32

    In California v. Cabazon Band of Mission Indians, the U.S. Supreme Court explained that if the intent of state law is to prohibit certain conduct, it falls within the Public Law 280 grant of criminal jurisdiction, but if state law generally permits conduct subject to regulation, Public Law 280 does not authorize application of the law to tribal members on the reservation.33 For example, in Wisconsin, state and federal courts have consistently upheld tribal authority to operate gaming operations subject only to tribal and federal regulations because Wisconsin allows gaming subject to regulation.34

    Wisconsin courts have adopted a unique version of this analysis to determine whether a law is applicable to tribal members on an Indian reservation. Before Cabazon, the Wisconsin Supreme Court examined the applicability of state traffic laws to tribal members on Indian reservations in County of Vilas v. Chapman.35 In that case, a tribal member received a traffic citation for an offense committed on an Indian reservation.

    The supreme court determined that the tribe did not have a well-established tradition of self-government in the area of traffic regulation and the court did not recognize any other basis for federal preemption of the county’s noncriminal traffic laws. Based on this reasoning, the court concluded that the county possessed jurisdiction to enforce its ordinances against the tribal member.

    A few years later, in a post-Cabazon analysis, the Wisconsin Supreme Court again looked to whether a tribe had a law in place as a determining factor in whether state laws applied to tribal members.36 The court reasoned that application of state law in those instances would not infringe on tribal self-government because the tribe did not have a well-established tradition of self-government regulating that particular activity.37

    Courts in other jurisdictions rely primarily on Cabazon’s distinction between civil regulatory laws and criminal prohibitory laws.38 In these cases, history of tribal self-government regarding the subject matter was not viewed as a relevant factor to determine the extent of state jurisdiction. Similarly, federal courts have determined that “failure of the Tribe to legislate does not constitute a relinquishment of its authority to do so.”39

    Federal Grant of Jurisdiction to the States – Allotment Acts. As with civil regulatory jurisdiction, states generally lack jurisdiction over tribal land unless Congress grants it to them.40 As a general rule, states cannot tax trust land,41 take trust title away from the tribe,42 or zone trust land.43 There is no general rule with regard to fee land, and establishing such a straightforward general rule for fee land that tribes and tribal members purchase on the open market is not likely to happen any time soon.

    Courts have determined that allotment acts provide some state authority over tribal fee lands. These allotment acts transferred title of tribal trust property to individual tribal members with the goal of breaking up tribal land holdings and assimilating tribal members into mainstream society. After a period of time, the allotted land became alienable and subject to taxation. Tribal members could then sell or mortgage their land.44 Based primarily on these allotment acts, courts agree that states can impose real estate taxes on tribal fee land.45 However, the courts have disagreed on the questions of whether a local government can take title away from a tribe46 or whether tribal fee land is subject to local zoning authority.47

    In Yakima and Cass County, the U.S. Supreme Court considered whether land that had been previously allotted and subsequently purchased by a tribe or tribal members was subject to real estate taxes.48 In these cases, the Supreme Court held that the General Allotment Act manifested the clear intent of Congress to allow taxation of fee-patented reservation lands.

    The Court in Yakima also considered the importance of preserving Indian self-determination and concluded that imposition of the taxes did not disrupt tribal self-government.49 At the same time, the Court recognized limits on the alienability of land and held that “the General Allotment Act explicitly authorizes only ‘taxation of ... land,’ not ‘taxation with respect to land,’ ‘taxation of transactions involving land,’ or ‘taxation based on the value of land.’”50

    Aside from allotment acts, the Supreme Court also held that land lost through a series of invalid treaties and later acquired by a tribe on the open market was subject to real estate taxes. In Sherrill, the tribe presented a unification theory to the Court, claiming that once the tribe reacquired land that had been wrongfully taken from it, the unification of the tribe’s aboriginal title with fee title restored the land’s status as inalienable. The Court disagreed, and explained that if the tribe wanted to restore the land’s status as inalienable, it could apply to have the land taken into trust status.51

    Rebecca M. WebsterRebecca M. Webster, U.W. 2003, is an enrolled member of the Oneida Tribe of Indians of Wisconsin and is a senior staff attorney with the tribe’s Oneida Law Office, Oneida. She also is an adjunct instructor at U.W.-Oshkosh and at Northeast Wisconsin Technical College.

    While the courts agree that fee land is subject to real estate taxes, courts do not agree whether local governments can force a sale for nonpayment of those taxes or otherwise take a tribe’s title to the fee land. After the Sherrill decision, the tribe in that case still refused to pay the taxes and claimed that the local government could not initiate tax foreclosure proceedings.52 The court agreed and explained: “The County cannot circumvent Tribal sovereign immunity by characterizing the suit as in rem, when it is, in actuality, a suit to take the tribe’s property.”53

    A federal court in Wisconsin came to a different conclusion and held that the General Allotment Act granted authority to local governments to condemn tribally owned fee property for roadway purposes.54

    Along similar lines, courts also do not agree whether local governments can zone tribal fee land. Before Sherrill, the Ninth Circuit issued a decision in Gobin v. Snohomish County, explaining that the alienability of land as discussed in Yakima could not be extended to authorize the county to exercise regulatory land use jurisdiction over tribal members’ fee land on the reservation.55 The court explained: “The objectionable County density requirement, in particular, does not burden the land itself, but rather burdens the use to which Gobin seeks to put the land.” Ultimately, the court held that “Congress did not expressly authorize plenary State land use regulation over Indian fee lands when it made those lands freely encumberable.”56

    Even though the sole legal question in Sherrill was limited to whether the land became tax exempt when the tribe reacquired it, the Supreme Court opined on other issues, including zoning issues. The Court warned that if the tribe “may unilaterally reassert sovereign control and remove these parcels from the local tax rolls, little would prevent the Tribe from initiating a new generation of litigation to free these parcels from local zoning or other regulatory controls that protect all landowners in the area.”57 The Court cited two pending lower-court cases involving the applicability of local zoning authority to tribal fee land.58 After the Sherrill decision, those two lower courts determined that tribal fee land in a land claim area was subject to local-government land-use regulation.59

    In Hobart, a Wisconsin condemnation case, the tribe relied on Gobin to prevent the condemnation, arguing that the village could not regulate the tribe’s conduct on tribal land and a condemnation for road purposes would surely prevent the tribe from using the land in a manner the tribe saw fit. The court rejected the tribe’s argument and explained that Gobin dealt more with the in personam jurisdiction over the uses of the land than the in rem jurisdiction over the land itself. The court also suggested that Sherrill called into question the holding of Gobin, explaining the tribe in the Sherrill case “could not restore its sovereignty over its reservation land through open-market purchases.”60

    Less than a year after issuing its decision in the Hobart condemnation case, the same court issued another decision on a similar but unrelated issue involving the same parties. In this later case, the issue centered on a restrictive covenant that prohibited a property owner from transferring ownership of the property to someone if the transfer would remove the property from the village’s zoning jurisdiction without village approval. The tribe sought to purchase the property and even though the tribe agreed to be bound by the village’s zoning jurisdiction for this piece of property, the village attempted to block the sale.

    In deciding to allow the sale to the tribe, the court acknowledged that “[t]he parties agreed that the transfer to the Oneida would trigger this clause (unlike the clause relating to taxes) because tribal ownership of the land (which is within the reservation’s boundaries) would arguably remove the land from the Village’s zoning authority.”61 In both the Hobart condemnation case and this case, the court’s discussion of regulation of tribal fee land was dicta and the court did not squarely rule on those issues.

    Conclusion

    Tribal and local government officials might find jurisdictional concepts difficult to understand and even more difficult to predict. With this landscape of uncertain jurisdictional limitations, these governments can be hesitant to find ways to move forward. They must weigh the potential costs against the potential benefits of options that include litigating the issues and placing the outcomes in the hands of a court, acquiescing to another government’s authority, lobbying Congress to clarify these jurisdictional questions, entering agreements that set forth their understanding of their respective jurisdictional limitations, entering agreements that establish enforcement procedures and protocols irrespective of a mutual understanding, or forming joint bodies to legislate and execute shared laws.

    In an ideal world, tribes and local governments would dedicate more resources to explore any of these last three options. Focusing on cooperative efforts seems to be a better use of resources than litigation and a more realistic route than waiting for Congressional action.

    Endnotes

    1 Jonathan Rosenbloom, New Day at the Pool: State Preemption, Common Pool Resources, and Non-Place Based Municipal Collaborations, 36 Harv. Envtl. L. Rev. 445, 447 (2012).

    2 See N.C. Zaferatos, Tribal Nations, Local Governments, and Regional Pluralism in Washington State: The Swinomish Approach in the Skagit Valley, J. Am. Planning Ass’n 70(1), 81-96 (2004b).

    3 Grant Christensen, Judging Indian Law: What Factors Influence Individual Justices’ Votes on Indian Law in the Modern Era, 43 U. Tol. L. Rev. 267 (2012). This article provides a quantitative analysis of the voting records of individual U.S. Supreme Court justices in federal Indian law cases. Several recent cases involving conflicts between tribal jurisdiction and state jurisdiction have been decided in favor of state jurisdiction. However, when faced with questions in which tribal jurisdiction conflicts with state jurisdiction, approximately half the justices support the concept that “states should not interfere with the regulatory and adjudicatory jurisdiction of the tribal sovereign.” Id. at 276. Additionally, roughly three percent of the cases the U.S. Supreme Court hears deal with questions of tribal sovereignty. David H. Getches, Beyond Indian Law: The Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values, 86 Minn. L. Rev. 267,  292 n.109 (2001). According to Getches, this relatively high number of cases dealing with tribal sovereignty is the result of “a long tradition of state resistance to tribal sovereignty, which has required the Supreme Court’s repeated intervention to resolve jurisdictional disputes.” Id. at 288.

    4 For example, the Oneida Tribe and the village of Hobart have been engaged in a series of lawsuits over the past several years. These lawsuits center on use of land and jursidiction. See Village of Hobart v. Danforth, No. 03-CV-75 (Wis. Cir. Ct. Brown Cnty.) (village filed action in circuit court to prevent tribe from asserting village lacked authority to condemn tribally owned fee land; case dismissed after resolution of issue in federal court); Oneida Tribe of Indians of Wis. v. Village of Hobart, 542 F. Supp. 2d 908 (E.D. Wis. 2008) (village could condemn tribal fee land for road purposes); Village of Hobart v. Oneida Tribe of Indians of Wis., No. 06-CV-480 (Wis. Cir. Ct. Brown Cnty.), aff’d, 2007 WI App 180, 303 Wis. 2d 761, 736 N.W.2d 896 (village asked court to determine ownership of former railroad right-of-way, court dismissed because village lacked standing); Village of Hobart v. Oneida Tribe of Indians of Wis., No. 08-CV-1313 (Wis. Cir. Ct. Brown Cnty.), aff’d, No 2010AP561, 2011 WL 2535540 (Wis. Ct. App. June 28, 2011) (village challenged provision of intergovernmental agreement between tribe and county providing that tribal police officers would be dispatched first to a 1,700-acre area central to the reservation; court dismissed village’s claims); Village of Hobart v. TCGC LLC, No. 08-MC-59, 2008 WL 5377911 (E.D. Wis. Dec. 23, 2008) (during bankruptcy proceedings, village attempted to block sale of land to tribe over jurisdictional concern, court allowed the sale of the land to the tribe); Oneida Tribe of Indians of Wis. v. Village of Hobart, 891 F. Supp. 2d 1058 (E.D. Wis. 2012), aff’d, 732 F.3d 837 (7th Cir. 2013), cert. denied, 134 S. Ct. 2661 (2014) (village attempted to impose storm-water-management taxes on tribal trust land; court held the tax inapplicable to trust land); Hobart v. Midwest Regional Director, Bureau of Indian Affairs, 57 IBIA 4 (2013) (village challenged several notices to take land into trust status, IBIA remanded case to the Bureau of Indian Affairs (BIA) to more fully consider factors described in 25 C.F.R. pt. 151 before making a new decision). The issues between the Oneida Tribe and the village of Hobart are not unique. See, e.g., Shawano Cnty. v. Acting Midwest Regional Dir., Bureau of Indian Affairs, 53 IBIA 62 (2011) (county challenged a notice to take land into trust status based on several grounds; IBIA rejected the challenge).

    5 For a discussion of how state and federal actions over time have affected land bases on Indian reservations resulting in the transfer of title to nontribal members and establishing local governments within reservation boundaries, see R.M. Webster, Common Boundaries: Moving Toward Coordinated and Sustainable Planning on the Oneida Reservation (doctoral dissertation, Walden Univ.) (2014).

    6 Rebecca Webster, Andrew Adams III & David Armstrong, An Introduction: American Indian Tribes and Law in Wisconsin, 88 Wis. Law. 17 (May 2015). As noted in that article, 11 tribes call Wisconsin home. Ten of the 11 tribes exercise jurisdiction within established reservation boundaries, and some tribes exercise usufructuary rights outside their reservation boundaries. For the purposes of this article, the jurisdictional discussion is limited to activities within established reservation boundaries.

    7 Alexis Applegate, Tribal Authority to Zone Nonmember Fee Land Using the First Montana Exception: A Game of Checkers Tribes Can Win, 40 B.C. Envtl. Aff. L. Rev. 159 (2013).

    8 SeeMontana v. United States, 450 U.S. 544 (1981).

    9 Wisconsin Legislative Council, State-Tribal Relations, Wisconsin Legislator Briefing Book 2011-12, www.terrainstitute.org/pdf/chrono_ref%20docs/2011-state%20Tribal%20Relations.pdf.

    10 David Moore, Chapter 26 – State-Tribal Relations, Wisconsin Legislator Briefing Book 2015-16, http://docs.legis.wisconsin.gov/misc/lc/briefing_book/ch26_state_tribal_relations.pdf.

    11 It would be difficult for a tribal government to track how much land individual tribal members own. As a general practice, transactions on trust land are recorded with the BIA and tribal governments. Transactions on fee land are recorded with county register of deeds offices, with tribes keeping records of the properties they acquire. However, tribes generally do not keep track of properties that individual tribal members acquire in fee status. In addition, only tribal members and tribal governments can hold title to trust land, while virtually anyone can hold title to fee land. Since tribes do not generally keep records of individual tribal member transactions of fee land, the only way to obtain the data would be to cross-reference tribal enrollment data with county records, which would be a monumental task.

    12 WaterWheel Camp Rec. Area Inc. v. Larance, 642 F.3d 802 (9th Cir. 2011).

    13 CherokeeIntermarriage Cases, 203 U.S. 76 (1906); Roff v. Burney, 168 U.S. 218 (1897).

    14 Fisherv. District Court, 424 U.S. 382 (1976).

    15 Jonesv. Meehan, 175 U.S. 1 (1899); United States ex rel. Mackey v. Coxe, 59 U.S. 100 (1855).

    16 United States v. Wheeler, 435 U.S. 313, 318, 322-23 (1978) (tribes have never given up their sovereign power to punish tribal offenders, and Congress has not otherwise removed that authority).

    17 There is a presumption that tribes do not have jurisdiction over nonmembers. United States v. Wheeler, 435 U.S. 313 (1978) (tribes have been implicitly divested of jurisdiction over non-Indians).

    18 Water Wheel, 642 F.3d 802,808 (citing New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) (“A tribe’s power to exclude nonmembers entirely or to condition their presence on the reservation is … well established.”), 812; see also United States v. Lara, 541 U.S. 193, 200 (2004) (recognizing that “the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive’” (citations omitted)); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58-60 (1978) (recognizing Congress’s “superior and plenary control” over matters of tribal sovereignty and noting that “a proper respect both for tribal sovereignty itself and for the plenary authority of Congress in this area cautions that we tread lightly in the absence of clear indications of legislative intent”). A recent decision out of the Seventh Circuit questioned the holding in Water Wheel. Stifel, Nicholaus & Co Inc. v. Lac Du Flambeau Band of Lake Superior Chippewa Indians, No. 3:13-cv-00372-wmc, Nov. 24, 2015, footnote 60. However, the court in Stifel ultimately determined the tribe was attempting to regulate off-reservation conduct on non-tribal land.

    19 See Tribal Authority Rule, 63 Fed. Reg. 7254. The Court of Appeals for the D.C. Circuit upheld this interpretation in Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000).

    20 The EPA’s interpretation and implementation of these provisions of the CWA have withstood several challenges. See Wisconsin v. EPA, 266 F.3d 741 (7th Cir. 2001) (EPA relied on Montana rule to conclude that “once a tribe has shown that impairment of the waters on the reservation would have a serious and substantial effect on the health and welfare of the tribe, the EPA presumes that there has been an adequate showing of inherent authority”); Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998); City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996).

    21 Montanav. United States, 450 U.S. 544 (1981).

    22 Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (tribe retained sovereign authority to impose severance taxes on natural resources removed by non-Indians from tribal land); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983) (tribe worked closely with federal government under authority of federal law to exercise lawful authority to develop and manage reservation’s resources for benefit of its members, and exercise of concurrent jurisdiction by state would effectively nullify tribe’s authority to regulate use of its resources by members and nonmembers); Kerr-McGee v. Navajo Tribe of Indians, 471 U.S. 195 (1985) (tribe possessed authority to impose tribal taxes on value of leasehold interests in tribal lands and on receipts from sale of property produced or extracted from those lands).

    23 Strate v. A-1 Contractors, 520 U.S. 438 (1997) (tribe could not regulate non-Indian activity on a state right-of-way although the tribe held title to the underlying land; right-of-way grant precluded tribe from possessing any gatekeeping rights over the property, rendering right-of-way the equivalent to non-Indian fee land); Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001) (tribe lacked power to impose hotel occupancy tax on guests of hotel owned by non-Indians on non-Indian land within reservation even though hotel guests enjoyed protection of tribal police and fire and emergency services and hotel employed nearly 100 tribal members); Nevada v. Hicks, 533 U.S. 353 (2001) (tribe did not have jurisdiction to regulate non-Indian, state-law-enforcement officers who searched tribal member’s residence on trust land related to alleged off-reservation crime; land’s ownership status is only one factor to consider in determining whether regulation of activities of non-Indians is necessary to protect tribal self-government or to control internal relations).

    24 Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408 (1989) (tribe could zone nonmember fee lands in “closed” portion of reservation where general public was not freely admitted but not in “open” portion where most land passed from Indian hands as result of General Allotment Act).

    25 McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 170-71 (1973).

    26 Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) (absent cession of jurisdiction or other federal statutes permitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activities carried on within reservation’s boundaries).

    27 McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164 (1973); see alsoLac Du Flambeau Band of Lake Superior Chippewa Indians v. Zeuske, 145 F. Supp. 2d 969, 975 (W.D. Wis. 2000).

    28 Moe v. Salish & Kootenai Tribes, 425 U.S. 463 (1976); see alsoBryan v. Itasca Cnty., 426 U.S. 373 (1976) (Public Law 280 did not grant the states the power to tax).

    29 White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). The legal incidence is generally determined by examining the structure of the state’s tax law. The legal incidence falls on the person or entity who can be punished or penalized if the tax is not paid to the state. If the legal incidence of the tax falls on a non-Indian within Indian country, but the tax is passed on from the non-Indian to the tribe or a tribal member, the Court will employ the Bracker balancing test. Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995). The Bracker balancing test is a particularized inquiry regarding the nature of the federal, tribal, and state interests, and the state can impose its tax only if its interest outweighs the federal and tribal interests.

    30 25 C.F.R. § 162.017. This section reads as follows:

    “(a) Subject only to applicable Federal law, permanent improvements on the leased land, without regard to ownership of those improvements, are not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Improvements may be subject to taxation by the Indian tribe with jurisdiction.

    (b) Subject only to applicable Federal law, activities under a lease conducted on the leased premises are not subject to any fee, tax, assessment, levy, or other charge (e.g., business use, privilege, public utility, excise, gross revenue taxes) imposed by any State or political subdivision of a State. Activities may be subject to taxation by the Indian tribe with jurisdiction.

    (c) Subject only to applicable Federal law, the leasehold or possessory interest is not subject to any fee, tax, assessment, levy, or other charge imposed by any State or political subdivision of a State. Leasehold or possessory interests may be subject to taxation by the Indian tribe with jurisdiction.”

    Although the Code of Federal Regulations does not have the force of law, the BIA provided extensive legal and policy support for these provisions in the executive summary to the latest changes to part 162, including the following statement: “Assessment of State and local taxes would obstruct Federal policies supporting tribal economic development, self-determination, and strong tribal governments. State and local taxation also threatens substantial tribal interests in effective tribal government, economic self-sufficiency, and territorial autonomy.” 77 Fed. Reg. No. 234 (Dec. 5, 2012).

    31 18 U.S.C. § 1162; 28 U.S.C. § 1360; 25 U.S.C. §§ 1321-1326.

    32 426 U.S. 373 (1976). Public Law 280 was a grant of jurisdiction to the states, but not to state subdivisons such as city, town, village, and county governments. See Santa Rosa Band of Indians v. Kings Cnty., 532 F. 2d 655, 661 (9th Cir. 1975).

    33 480 U.S. 202 (1987).

    34 Oneida Tribe of Indians of Wis. v. Wisconsin, 518 F. Supp. 712 (W.D. Wis. 1981) (Wisconsin’s regulation of bingo was a civil regulation and, thus, could not be applied to the Oneida Reservation); Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Williquette, 629 F. Supp. 689 (W.D. Wis. 1986) (Wisconsin did not have authority to enforce state law governing raffles against Indian tribe’s sale of pull tabs at tribal bingo games); Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, 770 F. Supp. 480 (W.D. Wis. 1991) (Wisconsin’s policy toward class III gaming is regulatory rather than prohibitory); Dairyland Greyhound Park Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408 (amendment to state constitution prohibiting state legislature from authorizing gambling in any form did not affect or invalidate preexisting gaming compacts with Indian tribes).

    35 County of Vilas v. Chapman, 122 Wis. 2d 211, 361 N.W.2d 699 (1985).

    36 State v. Big John, 146 Wis. 2d 741, 749, 432 N.W.2d 576 (1988) (citations omitted).

    37 Compare St. Germaine v. Chapman, 178 Wis. 2d 869, 505 N.W.2d 450 (Ct. App. 1993) (tribe adopted domestic abuse ordinance, therefore state ordinance did not apply).

    38 Confederated Tribes of Colville Reservation v. Washington, 938 F.2d 146 (9th Cir. 1991) (traffic offenses are not defined as criminal offenses under state law and therefore cannot be applied to tribal members on Indian reservations).

    39 Segundo v. Rancho Mirage, 813 F.2d 1387 (9th Cir. 1987) (citingMerrion, 455 U.S. at 145); compare St. Germaine v. Circuit Court,938 F.2d 75 (7th Cir. 1991) (allowing application of state criminal traffic law to tribal member on Indian reservation).

    40 Countyof Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251 (1992).

    41 25 U.S.C. § 465.

    42 25 U.S.C. § 81; 25 U.S.C. § 177; 25 C.F.R. § 152.22.

    43 25 C.F.R. § 1.4; see also Santa Rosa Band of Indians v. Kings Cnty., 532 F.2d 655 (9th Cir. 1976); Snohomish Cnty. v. Seattle Disposal Co., 425 P.2d 22 (Wash. 1967).

    44 See, e.g., Dawes General Allotment Act, 25 U.S.C. § 331.

    45 Yakima, 502 U.S. 251; Cass Cnty. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998).

    46 CompareOneida Indian Nation of N.Y. v. Madison Cnty., 401 F. Supp. 2d 219 (N.D.N.Y. 2005) withOneida Tribe v. Hobart, 542 F. Supp. 2d 908 (E.D. Wis. 2008).

    47 CompareGobin v. Snohomish Cnty., 304 F.3d 909 (9th Cir. 2002) with Cayuga Indian Nation of N.Y. v. Village of Union Springs, 390 F. Supp. 2d 203 (N.D.N.Y. 2005).

    48 Yakima, 502 U.S. 251; Cass Cnty., 524 U.S. 103. For a discussion on the conversion of fee land into trust status, see Frank Pommersheim, Land into Trust: An Inquiry into Law, Policy, and History, 49 Idaho L. Rev. 519 (2013).

    49 Yakima, 502 U.S.at 265. The Court also explained the difficulty of relying on the status of the land to determine which government has regulatory authority over individuals, stating that doing so “would produce almost surreal administrative problems, making the applicability of law depend not upon the locus of the transaction but upon the character of the reservation land owned by one or both parties.” Id. at 262-63.

    50 Id. at 269.

    51 City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197, 213, 220 (2005).

    52 Oneida Indian Nation of N.Y. v. Madison Cnty., 401 F. Supp. 2d 219 (N.D.N.Y. 2005).

    53 Id. at 229. For a discussion of sovereign immunity, see Matthew L.M. Fletcher,
    (Re)Solving the Tribal No-Forum Conundrum: Michigan v. Bay Mills Indian Community, 123 Yale L.J. Online 311 (2013).

    54 Oneida Tribe v. Hobart, 542 F. Supp. 2d 908 (E.D. Wis. 2008).

    55 304 F.3d 909, 915 (9th Cir. 2002); see also Thomas Fitzpatrick, Land Use Regulation of Reservation Fee Lands: Where Do We Go From Here?, Washington Association of Prosecuting Attorneys, June 21, 2003 (relying on Gobin to explain local governments cannot zone tribal fee land on Indian reservations); Yvonne Mattson, Civil Regulatory Jurisdiction over Fee Simple Tribal Lands: Why Congress is Not Acting Trustworthy, 27 Seattle U. L. Rev. 1063 (2004) (calling on Congress to employ its trust responsibility to clarify tribal zoning authority).

    56 304 F.3d at 917.

    57 544 U.S. at 220.

    58 Id. n.13.

    59 CayugaIndian Nation of N.Y. v. Village of Union Springs, 390 F. Supp. 2d 203 (N.D. N.Y. 2005); Seneca-Cayuga Tribe of Okla. v. Town of Aurelius, 233 F.R.D. 278 (N.D. NY 2006).

    60 542 F. Supp. 2d 908, 926 (E.D. Wis. 2008).

    61 Villageof Hobart v. TCGC LLC, 2008 WL 5377911, at 1, 5.

    62 Indian Country Statute, 18 U.S.C. § 1151. Indian country is defined by statute for purposes of the criminal code; however, the definition is also used for civil jurisdiction. Alaska v. Native Village of Venetie, 522 U.S. 520, 527 (1998).

    63 Seymour v. Superintendent, 368 U.S. 351 (1962).

    64 There is a third category of land referred to as restricted fee. For jurisdictional purposes, this land is treated the same as trust land. In addition, not all tribes govern land within an established Indian reservation. See Webster, Adams  & Armstrong, supra note 6, at 18-25.

    65 See, e.g., 25 U.S.C. § 415 (requiring Secretary of the Interior to approve leases on trust land).

    66 25 U.S.C. § 465.

    67 28 U.S.C. § 2409(a).

    68 The most common example of statutory authority to take land into trust for Indian tribes is the Indian Reorganization Act, 25 U.S.C. § 465.

    69 25 C.F.R. pt. 151.

    70 For a discussion of the federal Indian trust responsibility, see Cherokee Nation v. Georgia, 30 U.S. 1 (1831); Seminole Nation v. United States, 316 U.S. 286 (1942).

    71 25 U.S.C. § 2216(f).

    72 Armen H. Merjian, An Unbroken Chain of Injustice: The Dawes Act, Native American Trusts, and Cobell v. Salazar, Gonzaga L. Rev. 609-59 (2011).

    73 McClanahanv. Arizona State Tax Comm’n, 411 U.S. 164, 170-71 (1973).

    74 WhiteMountain Apache Tribe v. Bracker, 448 U.S. 136, 145 (1980).

    75 SeminoleTribe of Florida v. Stranburg, 799 F.3d 1324 (11th Cir 2015).

    76 Id. at 1329 (quoting 25 U.S.C. § 465).

    77 Id. at 1330 (quoting Mescalero Apache Tribe v. Jones, 411 U.S. 145, 158 (1973)).

    78 Id. at 1331-32.

    79 Id. at 1339.

    80 Id. at 1342(citations omitted).

    81 Id. at 1345-52.

    82 Id. at 1352-53.

    83 A much longer version of this article recently appeared in Political and Legal Anthropology Review 38(1): 30-52.

    84 U.S. Const., art. 1, sec. 8, cl. 3.

    85 Cherokee Nation v. Georgia,30 U.S. 1 (1831).

    86 Worcestor v. Georgia, 31 U.S. (6 Pet.) (1832).

    87 Especially the Major Crimes Act, ch. 341 § 9, 23 Stat. 362, 385 (1887).

    88 Pub. L. No. 83-280, 67 Stat. 588 (1953).

    89 28 U.S.C. § 1360.

    90 Indian Self-Determination and Education Assistance Act, Public Law No. 95-698 (1975).

    91 Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983).

    92 Williams v. Lee, 358 U.S. 217 (1959), which dealt with exclusive tribal jurisdiction for internal reservation affairs; National Farmers Union v. Crow Tribe, 468 U.S. 13 (1984); and Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987). The latter two both dealt with endorsing exhaustion of tribal forums for cases on reservations.

    93 The supreme court’s decisions in Teague v. Bad River Band of Lake Superior Tribe of Chippewa Indians are at 2000 WI 79, 236 Wis. 2d 384, 612 N.W.2d 709; and 2003 WI 118, 265 Wis. 2d 64, 665 N.W.2d 899. For a detailed account of the case and its significance, see Botsford and Stenzl, The Wisconsin Way Forward with Comity: A Legal Term for Respect,Tulsa L. Rev.47(3):659-685.

    94 Wis. Stat. 801.54.

    95 Kroner v. Oneida Seven Generations Corp., 2012 WI 88, 342 Wis. 2d 626, 819 N.W.2d 264.

    96 Id. ¶ 5.

    97 Id. ¶ 92 (Roggensack, J., concurring).

    98 Id. ¶ 96 (Roggensack, J., concurring).

    99 Id. ¶ 98 (Roggensack, J., concurring).

    100 In the spring of 2015, the Oneida court reported to me by phone that it had transferred 1,031 cases from Brown County, 306 from Outagamie County, and 75 from Milwaukee County.

    101 See supra note 92.