Wisconsin Legislature: Indians; Taxation;

71 Op. Att'y Gen. 82, 87 (1982)

1. Are the above examples of real estate "Indian reservations" for purposes of applying OAG 56-79?

71 Op. Att'y Gen. 82, 87-88 (1982)

Neither the St. Croix nor the Winnebago occupy a reservation in the traditional sense of a compact block of lands specifically reserved for tribal use with clearly marked exterior boundaries. The St. Croix Band's territory is comprised of a combination of dependent Indian communities and noncontiguous tracts of land held in trust by the United States of America for the St. Croix Band which are located in several counties in the northwest part of Wisconsin. The Winnebago Tribe's territory is also comprised of a combination of dependent Indian communities, some of which are located on tracts of land held in trust for the Winnebago Tribe by the United States of America, and individual Indian allotments throughout southern Wisconsin.

71 Op. Att'y Gen. 82, 88 (1982)

Although the lands in your examples were only recently purchased and placed into trust with the federal government, it is clear that the Secretary of the Interior has the authority to purchase lands or accept lands into trust for the use of Indian tribes at any time. The primary statutory authority is the 1934 Indian Reorganization Act (48 Stat. 984, 25 U.S.C. sec. 461,

et seq

.). This Act provided a statutory basis for the reestablishment of Indian reservations and the reorganization of Indian tribes as governmental entities. Specifically, it gave the Secretary of the Interior authority to purchase lands for the purpose of providing an expanded land base for Indian tribes on existing reservations (25 U.S.C. sec. 465), and to proclaim new Indian reservations where none existed previously (25 U.S.C. sec. 467).

71 Op. Att'y Gen. 82, 88 (1982)

As indicated, the controlling consideration is whether land purchased by the Secretary of the Interior or accepted into trust by the Secretary of Interior, pursuant to the Indian Reorganization Act or other legal authority, has been validly set apart for the use of the Indians as such, under the superintendence of the United States Government.

See

John

, 437 U.S. at 649.

71 Op. Att'y Gen. 82, 88 (1982)

It is my opinion that since the lands that you refer to in the Town of Swiss (St. Croix Band) and the Town of Delton (Winnebago Tribe) were placed into trust for the use of the respective tribes and are no doubt under the general superintendence of the Department of Interior, Bureau of Indian Affairs, those lands qualify as "reservation land."

71 Op. Att'y Gen. 82, 88-89 (1982)

It is less clear, however, whether the parcel of land in Monroe County, which was transferred into trust for the benefit of an individual Winnebago Indian, constitutes reservation land as the term has been defined and utilized in the more recent United States Supreme Court decisions referred to herein and in 68 Op. Att'y Gen. 151 (1979). There is, however, ample precedent to conclude that, where the federal government secures land, by whatever means, for the use of an individual tribe member, and that land remains under the superintendence of the government, it constitutes reservation land with substantially the same jurisdictional status as any other reservation land in the state. That jurisdictional status may be modified, if certain state interests have vested in recently purchased parcels located outside established reservations. The critical element would be available evidence of the federal government's intention to divest or not divest the state of its vested interests. Another factor would be the extent of federal superintendence over the land and activities conducted on it. Because of such factors, the tribe member may or may not, depending on the intent of the government at the time the land was placed into trust status, have the same rights to utilize the land as are attached to lands that were reserved for Indian tribes in treaties or as a result of special legislative enactments. Thus, the tribe member may or may not have acquired hunting and fishing rights on such land free of state regulation.

See

e.g.

State v. Shepard

, 239 Wis. 345, 300 N.W. 905 (1941) and

Sac & Fox Tribe of Mississippi in Iowa v. Licklider

, 576 F.2d 145 (8th Cir. 1978). Such land, however, would clearly be treated the same as trust land located within reservation boundaries for some purposes. For example, the land itself would not be taxable by state and local units of government.

71 Op. Att'y Gen. 82, 89 (1982)

The determination of whether such land must be treated the same as other reservation land for a specific jurisdictional purpose depends in significant part on the intent of the federal government when the land was placed into trust and on the extent of federal superintendence over the land and activities conducted thereon. Since such determination involves questions of fact, it must await resolution in an appropriate case where all facts can be considered. Based on the information you have provided, it is not possible to determine whether such land in fact qualifies as reservation land.

71 Op. Att'y Gen. 82, 89 (1982)

You also ask:

71 Op. Att'y Gen. 82, 89 (1982)

2. For purposes of administering Wisconsin's cigarette tax laws, does the Department of Revenue have different jurisdiction on an Indian reservation than it does on:

71 Op. Att'y Gen. 82, 90 (1982)

a. Land held in trust by the United States of America for the tribe?

71 Op. Att'y Gen. 82, 90 (1982)

b. Land held in trust by the United States of America for individual Indians?

71 Op. Att'y Gen. 82, 90 (1982)

c. Land owned by the tribe in fee simple?

71 Op. Att'y Gen. 82, 90 (1982)

d. Land owned by individual Indians in fee simple?

71 Op. Att'y Gen. 82, 90 (1982)

In my opinion, the Department of Revenue has the same jurisdiction on Indian reservations established by treaty as it does on land held in trust (

i.e.

, reserved) by the United States for the use of Indian tribes regardless of how or when that land was acquired. As indicated, it is less clear what the jurisdictional relationship is with respect to land held in trust for individual Indians if such lands have only recently been acquired and are located outside exterior boundaries of reservations that were established by treaty, executive order, or special legislative enactments.

71 Op. Att'y Gen. 82, 90 (1982)

Unfortunately, I do not have enough information about the reservation of the Monroe County parcel to decide whether the state can tax cigarette sales to non-Indians on that parcel. I would be glad to consider the question again if you can provide additional facts about the land, its reservation by the federal government, and activities on it.

71 Op. Att'y Gen. 82, 90 (1982)

Recent Supreme Court cases such as

Mattz v. Arnett

, 412 U.S. 481 (1973) and

Seymour v. Superintendent

, 368 U.S. 351 (1962), clearly establish the principle that once a reservation has been established, all land, regardless of tenure, remains part of that reservation unless specifically removed therefrom by clear congressional action. Therefore,

land owned in fee

by the tribe or individual tribe members retains its reservation status if located within existing reservation boundaries or if the federal government has recognized it as such. If such land, however, is located outside recognized reservation boundaries, that land would not be considered reservation land and the Department would have jurisdiction over such land to the same extent it enjoys jurisdiction over any other fee land located within the state.

71 Op. Att'y Gen. 82, 90 (1982)

You ask: