Joint Legislative Council prefatory note: This bill, developed by the Joint
Legislative Council's special committee on state-tribal relations, addresses liability for
the actions 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 on an individual basis. Most commonly, a
county sheriff will deputize qualified tribal law enforcement officers.

Second, state statutes may grant such power. The most notable example of this is
s. 165.92, stats., which 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. One

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condition is that the tribe must adopt 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 adopt another resolution that the Department of Justice (DOJ)
determines has substantially the same result.

In addition, s. 175.40 (6) and (7), stats., gives the power to enforce state criminal
laws and the authority to aid and assist to peace officers outside their territorial
jurisdiction and to federal law enforcement officers anywhere in the state. The definition
of "peace officer" used in this statute includes tribal officers who are empowered to act
under s. 165.92.

The most recent example is s. 175.40 (6m), stats., created by 2005 Wisconsin Act
414, which gives the power to enforce state criminal laws and the authority to aid and
assist to off-duty peace officers outside their territorial jurisdiction, under specified
circumstances. Again, "peace officer" includes tribal officers who are empowered to act
under s. 165.92. Unlike ss. 165.92 and 175.40 (6) and (7), the new statute addressing
off-duty officers states that, for purposes of civil and criminal liability (including legal
representation and payment of judgments) and worker's compensation, an off-duty
officer acting under that authority is considered to be acting in an official capacity as an
officer of the state, state employee, or agent of the state. Among other things, this means
that the state may be liable for the actions of an officer acting under s. 175.40 (6m).

THE BILL

Liability Under s. 165.92

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
specified in s. 165.92. It allows the tribe to instead maintain liability insurance with a
limit of at least $2,000,000 per occurrence. 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.

The bill also makes a cross-reference change to clarify that a tribe's liability
includes liability for actions when transporting an arrested person and clarifies that the
tribe's liability is for the acts and omissions of its officers.

Liability Under s. 175.40 (6m)

As noted above, s. 175.40 (6m) specifies that an officer acting under its authority
is considered to be acting as an officer, agent, or employee of the state, meaning that the
state may be liable for the actions of a tribal officer empowered to act under s. 165.92,
among others, when acting under the authority of s. 175.40 (6m). At the same time, s.
165.92 (3) states that the employing tribe is liable for the actions of a tribal officer acting
under s. 165.92. To remove any ambiguity regarding which liability provision applies, the
bill clarifies that the liability provisions in s. 175.40 (6m) apply to a tribal officer acting
under the authority of that subsection.