Tuesday, October 14, 2008

AG: Tribal off-reservation police records not public documents
Liability claims the only way to access many tribal incident reports

Richard Moore
Investigative Reporter

Tuesday, October 14, 2008


Police reports and records related to arrests and other law enforcement actions by tribal police officers outside the borders of their reservations against nontribal citizens are not available for public inspection under the state's open records laws, the attorney general's office told The Lakeland Times late last week.

The Times had posed the question to the Wisconsin Department of Justice after some citizens raised concerns about their ability to access police and incident records if they were ticketed or arrested in Oneida County by a Lac du Flambeau police department officer.

In an Oct. 3 letter to the newspaper, assistant attorney general Mary Burke said tribal police departments could not be compelled to comply with the open records law or to waive tribal immunity from lawsuits to enforce that law.

Under certain conditions, state statutes give tribal police officers the ability to enforce state laws outside their territorial jurisdiction. An attorney general's opinion on Oct. 1 that the state's tribes cannot participate in mutual aid calls between law enforcement agencies has called the reach of that ability into question, though undoubtedly tribal peace officers can act outside their jurisdiction in particular situations.

What Burke's interpretation means is, many of the same law enforcement arrest reports that would be subject to public inspection if the Oneida County Sheriff's Department made those arrests would not be open to public inspection if officers of the Lac du Flambeau police department made them.

Burke noted that, in construing the open records law, the Department of Justice has on multiple occasions concluded that state statutes define public records authorities as only those who are custodians of the records of state agencies or state offices or public bodies created by the constitution, statute, ordinance, rule or order or of a political subdivision of the state.

"It follows that a tribal police department would not be an 'authority' within the meaning of the [statutes] unless it could be considered an agency of the State of Wisconsin or Statutes, or by an ordinance, rule or order issued by a Wisconsin governmental entity or official," Burke wrote.

No go

And that, she stated, they are not.

"Similarly, a tribal police department is created by a resolution of the tribe's legislature, not by the Wisconsin Constitution or Statutes, or by ordinances, rules, or orders issued by a Wisconsin governmental body or entity," she stated.

What's more, she continued, the tribe's sovereign immunity would also shield tribal police department records.

"In addition, it is well established that Indian tribes possess sovereign immunity from lawsuits both in federal and state court," Burke wrote. "Tribal immunity applies to suits for declaratory and injunctive relief and to those for damages. The immunity extends to entities that are arms of a tribe, and also protects tribal officials and employees acting within the scope of their authority or employment."

Immunity also encompasses tribal activities that occur outside of Indian country, she stated.

Burke said the U.S. Congress could abrogate that immunity, or the tribe itself could waive it, but the state could do neither, and she said the prospects of a congressional action or tribal waiver were slim.

"There are no congressional acts abrogating tribal immunity from lawsuits filed under state laws such as Wisconsin's public records law, nor am I aware of any Wisconsin tribe that has waived its immunity from a lawsuit under Wisconsin's public records law," she wrote.

What's more, Burke stated, the state Legislature has expressly recognized tribal sovereign immunity with respect to tribal law enforcement agencies whose officers exercise state law enforcement powers.

For example, in specified circumstances state law grants tribal police officers the same powers as sheriffs to enforce state laws on their reservations - it should be noted that a state highway runs through the Lac du Flambeau reservation, thus conceivably giving tribal officers state authority on that portion of highway - but only if the tribe has adopted a resolution allowing enforcement in state court of the tribe's liability for the actions of its officers or that provides some other mechanism to do so.

"These provisions do not purport to directly regulate tribal police departments or to compel them to be sued in state court, but rather recognize tribal sovereignty by offering a grant of state powers to tribal police departments that voluntarily agree to meet state standards, to assume liability for the official acts of their officers, and to consent to suits in state court to enforce that liability," Burke wrote.

But, she continued, nothing in the statutes requires a tribe to comply with the state's public records law or to waive immunity from lawsuits to enforce that law as a condition of the state's grant of law enforcement powers to the tribe.

"If the Wisconsin Legislature had intended to impose such requirements, it would have done so expressly, just as it has done in the provision of [the statutes] discussed above," she wrote. "This acknowledgment of tribal sovereignty by the Wisconsin Legislature strongly supports the conclusion that - absent an actual waiver of immunity by the tribe - a tribal police department would be immune from a public records enforcement action . . . ."

Some recourse

All that being said, an inability to obtain records through a public records request doesn't mean those records are completely inaccessible, Burke wrote.

"The public records law and the discovery statutes applicable in litigation provide separate mechanisms to obtain potentially the same records," she stated. "As already noted, tribal police departments that exercise state law enforcement authority under [the statutes] are required to consent to the enforcement in state court of tribal liability for the official acts of tribal police officers. Such consent undoubtedly would allow the use of discovery in such a court action to obtain records relevant to the underlying claim of liability."

In other words, a person arrested would, in court, have a defense entitlement for the records related to that arrest, and a person bringing a civil suit for liability would have a similar privilege.

However, that would still mean the general public would have no right to review tribal police reports, a right they have with state law enforcement agencies.