State v. Douglas Lyle House

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 6, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1378-CR Cir. Ct. No. 2018CF1649

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

DOUGLAS LYLE HOUSE,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Brown County: THOMAS J. WALSH, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Douglas House appeals from a judgment of
conviction for second-degree sexual assault, as a repeater, and from an order
No. 2021AP1378-CR

denying his motion for postconviction relief. House claims that both he and the
victim are registered members of the Oneida Nation and that the crime took place
on Oneida land. House therefore asserts that the State of Wisconsin lacked
jurisdiction over the crime, and, accordingly, his conviction must be reversed.

¶2 We conclude that the State had jurisdiction over the crime at issue in
this case pursuant to 18 U.S.C. § 1162 (2018),1 more commonly known as Public
Law 280. We reject House’s argument that Public Law 280 is unconstitutional.
We therefore affirm.

BACKGROUND

¶3 The State charged House with second-degree sexual assault, as a
repeater. The complaint alleged that the crime occurred at House’s residence on
Jonas Circle in the Village of Hobart, in Brown County. The case proceeded to a
jury trial, and the jury found House guilty of the crime charged.

¶4 After sentencing, House filed a motion for postconviction relief,
asking the circuit court to vacate his conviction on the grounds that the State
lacked jurisdiction over the charged offense. In his motion, House alleged that he
and the victim are both registered members of the Oneida Nation and that the
crime “occurred on land established for the Oneida Nation to hold as ‘Indian
Lands.’” House acknowledged that Public Law 280 “purports” to grant the State
jurisdiction over crimes “committed by Indians in areas of Indian country.” He
argued, however, that Public Law 280 is “facially unconstitutional as it exceeds
the limits of Congress’s delineated authority.” More specifically, House

1
All references to the United States Code are to the 2018 version.

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contended that the Oneida Nation is a sovereign nation, and that the United States
Constitution does not grant Congress the plenary power to regulate the criminal
activity of citizens of a sovereign nation within that nation’s boundaries.

¶5 The State did not file a response to House’s postconviction motion.
The circuit court denied the motion in a written decision, without holding a
hearing. The court concluded that Public Law 280 clearly granted the State
criminal jurisdiction over House’s crime, given that “House is a registered
member of the Oneida Nation and committed an offense on the Oneida
Reservation against another member of the Oneida Nation.” The court then
rejected House’s argument that Public Law 280 is facially unconstitutional.
Specifically, the court concluded that Congress had authority to enact Public
Law 280 under its “plenary power to legislate with respect to Indian affairs.”
House now appeals.

DISCUSSION

¶6 On appeal, House does not dispute that he committed the crime of
which he was convicted. In addition, House does not dispute that, under the
circumstances presented, Public Law 280 granted the State criminal jurisdiction
over his crime. Instead, House contends that his conviction must be vacated
because Public Law 280 is unconstitutional “as applied to the sovereign Oneida

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Nation.”2 The constitutionality of a statute presents a question of law that we
review independently. State v. Wood, 2010 WI 17, ¶15, 323 Wis. 2d 321, 780
N.W.2d 63.

¶7 Public Law 280 “was enacted by Congress in 1953 in part to deal
with the ‘problem of lawlessness on certain Indian reservations, and the absence of
adequate tribal institutions for law enforcement.’” Washington v. Confederated
Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 471 (1979) (citation
omitted). Public Law 280 provides:

Each of the States or Territories listed in the following table
shall have jurisdiction over offenses committed by or
against Indians in the areas of Indian country listed
opposite the name of the State or Territory to the same
extent that such State or Territory has jurisdiction over
offenses committed elsewhere within the State or Territory,
and the criminal laws of such State or Territory shall have
the same force and effect within such Indian country as
they have elsewhere within the State or Territory[.]

18 U.S.C. § 1162(a). Wisconsin is one of the states listed in the table. Id. The
table specifies that the “Indian country affected” within Wisconsin is “[a]ll Indian
country within the State.”3 Id.

2
In the circuit court, House argued that Public Law 280 is facially unconstitutional—i.e.,
that it cannot be enforced under any circumstances. See State v. Wood, 2010 WI 17, ¶13, 323
Wis. 2d 321, 780 N.W.2d 63. On appeal, House claims he is not arguing that Public Law 280 is
facially unconstitutional but, rather, that it is unconstitutional “as applied to the sovereign Oneida
Nation.” Despite this characterization, some of House’s appellate arguments appear to relate to a
facial challenge to Public Law 280, rather than an as-applied challenge. Regardless of how
House’s challenge to the constitutionality of Public Law 280 is framed, we conclude that his
claim fails for the reasons set forth below.
3
For the purposes of Public Law 280, “Indian country” is defined to mean:

(continued)

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¶8 As noted above, House alleged in his postconviction motion that he
and the victim are registered members of the Oneida Nation and that the crime
took place on Oneida land. The circuit court did not take any evidence on House’s
motion. Instead, for the purposes of its decision, the court essentially assumed that
the factual allegations in House’s motion were true. On appeal, we similarly
assume, without deciding, that the factual allegations in House’s motion are true—
i.e., that House and the victim are registered members of the Oneida Nation and
that the crime took place on Oneida land.4 Given the factual allegations in

(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding
the issuance of any patent, and, including rights-of-way running
through the reservation, (b) all dependent Indian communities
within the borders of the United States whether within the
original or subsequently acquired territory thereof, and whether
within or without the limits of a state, and (c) all Indian
allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.

18 U.S.C. § 1151.
4
In its appellate brief, the State asserts that given the location of the crime, as well as
public mapping, we may take judicial notice that the crime “appears to have taken place on the
Oneida Reservation.” The State argues, however, that House “cites no evidence in the record or
publicly available documents” to support his claim that he and the victim are both registered
members of the Oneida Nation. The State contends that “unless [House] or the victim are
Indians, House cannot demonstrate he was injured by Public Law 280, and he therefore lacks
standing to challenge Public Law 280.”

We choose to assume, without deciding, that House and the victim are registered
members of the Oneida Nation and that the crime took place on Oneida land. House alleged these
facts in his postconviction motion. The State did not file a response to House’s motion, and, as
such, it did not dispute House’s factual allegations. Had the State done so, House could have
filed additional documentation supporting the factual allegations in his motion. Moreover, the
circuit court denied House’s motion without a hearing, which again prevented House from
submitting evidence to substantiate his factual allegations.

(continued)

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No. 2021AP1378-CR

House’s motion, it is clear that Public Law 280 grants the State criminal
jurisdiction over the crime at issue in this case. The only issue is whether the
grant of criminal jurisdiction in Public Law 280 is unconstitutional.

¶9 In essence, House argues that Public Law 280 is unconstitutional
because the Oneida Nation is a sovereign nation, and nothing in the text of the
United States Constitution grants Congress plenary power over sovereign Indian
nations. House therefore asserts that Congress “does not have the authority to
regulate criminal jurisdiction in sovereign nations, particularly the
Oneida Nation.” Because Congress “cannot delegate an authority it does not
have,” House contends that Public Law 280 “exceeds the Constitutional powers
granted to Congress” and is therefore unconstitutional.

¶10 We reject House’s argument because it is contrary to controlling
United States Supreme Court precedent. The Supreme Court has expressly stated
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.’” United States v. Lara, 541 U.S. 193, 200 (2004) (citation omitted).
The Supreme Court “has traditionally identified the Indian Commerce Clause,
U.S. CONST., Art. I, § 8, cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2, as sources
of that power.” Lara, 541 U.S. at 200. In particular, the Supreme Court has stated
that the “central function of the Indian Commerce Clause” is to “provide Congress

Neither the State nor the circuit court ever suggested during the circuit court proceedings
that House lacked standing to challenge the constitutionality of Public Law 280. Instead, the
court simply accepted the factual allegations in House’s motion as true and then rejected his
constitutional claim on the merits. Under these circumstances, we conclude it would not be fair
to House to resolve this appeal on the grounds that House has failed to establish that he has
standing to challenge the constitutionality of Public Law 280. Like the circuit court, we therefore
address the merits of House’s constitutional claim.

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No. 2021AP1378-CR

with plenary power to legislate in the field of Indian affairs.” Id. (citation
omitted). Congress’s power under the Indian Commerce Clause is “broad” and is
not strictly limited to regulating commerce. See id. In Lara, for instance, the
Court held that Congress had authority—derived in part from the Indian
Commerce Clause—to relax restrictions on tribes’ power to prosecute members of
other tribes. See id. at 200-02.

¶11 In addition to the Indian Commerce Clause and the Treaty Clause,
the Supreme Court has also attributed Congress’s plenary power over Indian
nations to “Congress’s protectorate or trust relationship with the Indian tribes.”
United States v. Long, 324 F.3d 475, 479 (7th Cir. 2003) (citing United States v.
Kagama, 118 U.S. 375, 383-84 (1886)). In Kagama, the Supreme Court
considered whether Congress could enact a law giving federal courts jurisdiction
over various crimes committed by “Indians … against the person or property of
another Indian or other person, within the boundaries of any state of the United
States, and within the limits of any Indian reservation.” See Kagama, 118 U.S. at
376-77 (citation omitted). The Court upheld the law, reasoning that Congress’s
authority to enact it flowed from the status of Indian tribes as “wards of the
nation” and “communities dependent on the United States.”5 Id. at 383-84.

¶12 Based on Lara and Kagama, which are settled United States
Supreme Court precedent, we reject House’s argument that Congress lacks plenary
power over Indian tribes, in general, and over the Oneida Nation, in particular.

5
House argues that United States v. Kagama, 118 U.S. 375 (1886), was wrongly
decided. However, we are bound by decisions of the United States Supreme Court on matters of
federal law. State v. Jennings, 2002 WI 44, ¶18, 252 Wis. 2d 228, 647 N.W.2d 142. As such,
we are not at liberty to disregard Kagama’s holding or to conclude that case was wrongly
decided.

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No. 2021AP1378-CR

Lara and Kagama establish that Congress has broad, plenary power “to legislate
in the field of Indian affairs.” See Lara, 541 U.S. at 200 (citation omitted). Those
cases further establish that Congress’s power—even if derived in part from the
Indian Commerce Clause—is not strictly limited to the authority to regulate
commerce and extends to the regulation of criminal jurisdiction over crimes
committed within Indian country.

¶13 As the State concedes, the United States Supreme Court has never
directly addressed whether Public Law 280 is unconstitutional on the grounds that
Congress lacked the authority to enact it. The State notes, however, that both the
United States Supreme Court and the Wisconsin Supreme Court have cited and
analyzed Public Law 280 “without expressing concern that Congress lacked
authority to enact it.” See, e.g., Bryan v. Itasca Cnty., Minn., 426 U.S. 373, 379
(1976); Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. at 472;
California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207-08 (1987),
superseded on other grounds by statute; State v. Burgess, 2003 WI 71, ¶12, 262
Wis. 2d 354, 665 N.W.2d 124. This fact further militates against a conclusion that
Public Law 280 is unconstitutional.

¶14 In addition, we note that lower courts in other jurisdictions have
upheld Public Law 280 as a valid exercise of Congress’s plenary power to regulate
Indian affairs. See State v. Fanning, 759 P.2d 937, 938-39 (Idaho Ct. App. 1988)
(collecting cases). In Fanning, the appellant argued that the State of Idaho could
not prosecute and convict her of driving a motor vehicle while under the influence

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of alcohol because she was “a Coeur d’Alene Indian.”6 Id. at 937. The appellant
contended that Public Law 280’s delegation of criminal jurisdiction to the State of
Idaho was unconstitutional “because Congress could only have been acting
pursuant to the Commerce Clause of the United States Constitution, and she was
not engaging in an act of commerce” at the time of the offense. Id. at 939.

¶15 The Idaho Court of Appeals rejected the appellant’s constitutional
challenge to Public Law 280. The court reasoned that the United States Supreme
Court “has recognized Congress’s authority to manage Indian affairs not only
pursuant to the Commerce Clause, but also pursuant to the Treaty Clause and a
variety of other provisions.” Id. (citations omitted). The court further explained
that “the federal-tribal relationship is premised upon broad, albeit not unlimited,
federal constitutional power over Indian affairs,” and “the relation of the Indians
to the United States is marked by peculiar and cardinal distinctions which exist
nowhere else.” Id. (citation omitted). Given the “complex relationship between
the federal government and the tribes,” the court refused to adopt the appellant’s
“simplistic constitutional interpretation” that Public Law 280 was unconstitutional
because Congress’s authority to legislate with respect to Indian tribes was limited
to the regulation of commerce. Id. at 939-40.

¶16 Based on the authorities discussed above, we reject House’s
argument that Public Law 280 is unconstitutional because Congress lacked the
authority to enact it. The United States Supreme Court has clearly held that

6
The Idaho Court of Appeals assumed, for the purposes of its decision, that the
intersection where the crime occurred was within “Indian country” and that the appellant was an
enrolled member of the Coeur d’Alene tribe. State v. Fanning, 759 P.2d 937, 937 (Idaho
Ct. App. 1988).

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Congress has broad, plenary power “to legislate in the field of Indian affairs.” See
Lara, 541 U.S. at 200 (citation omitted). Although the source of that power has
been the subject of academic dispute, the existence of the power is not in dispute.
We therefore conclude that Public Law 280 was lawfully enacted pursuant to
Congress’s plenary power to regulate Indian affairs.

¶17 House nevertheless argues that Congress could not lawfully enact
Public Law 280 because the Oneida Nation is a sovereign nation, and neither the
United States Constitution nor any other source of law gives Congress the
authority to grant a state criminal jurisdiction over crimes committed in a
sovereign nation by and against citizens of that nation. House’s reliance on
general principles of tribal sovereignty is misplaced. “Although at one time
[Indian tribes] may have had the status of independent nations, they lost their full
independence by virtue of their conquest first by European and then by American
colonizers—a loss that was later ratified by treaties.” Long, 324 F.3d at 479.
Indian tribes are now “viewed as quasi-independent or domestic dependent nations
within the United States.” Id. They “retain the powers of a sovereign nation in
the limited realm of internal affairs, subject to Congress’s power completely to
divest the tribes of such sovereignty.” Id. Here, as explained above, Congress has
used its broad, plenary power to grant the State of Wisconsin criminal jurisdiction
over “offenses committed by or against Indians in the areas of Indian country”
within this state. See 18 U.S.C. § 1162(a).

¶18 In addition, we note that in 1871, Congress enacted 25 U.S.C. § 71,
which provides that

[n]o Indian nation or tribe within the territory of the United
States shall be acknowledged or recognized as an
independent nation, tribe, or power with whom the United
States may contract by treaty; but no obligation of any

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No. 2021AP1378-CR

treaty lawfully made and ratified with any such Indian
nation or tribe prior to March 3, 1871, shall be hereby
invalidated or impaired.

By passing 25 U.S.C. § 71, Congress prohibited the further recognition of Indian
tribes as independent nations. House contends that “as applied to the sovereign
Oneida Nation, 25 U.S.C. § 71 is unconstitutional, and as such, Public Law 280
must also be unconstitutional.” House does not present a developed argument,
however, as to why he believes 25 U.S.C. § 71 is unconstitutional. We need not
address arguments that are undeveloped or unsupported by references to legal
authority. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App.
1992).

¶19 House also cites Worcester v. Georgia, 31 U.S. 515 (1832), for the
proposition that tribal nations were considered to be sovereign nations at the time
the Constitution was ratified. However, Worcester predates the enactment of
25 U.S.C. § 71, and it also predates modern Supreme Court cases affirming
Congress’s plenary power to regulate Indian affairs. Moreover, the Supreme
Court has expressly stated that although tribes are often referred to as sovereign
entities, the Court “long ago” departed from Worcester’s view that the laws of a
State can have no force within a reservation’s boundaries. See Nevada v. Hicks,
533 U.S. 353, 361 (2001) (citation omitted).

¶20 House also argues that the United States continued to engage in
treaties with the Oneida Nation after the Constitution was ratified, which shows
that the Oneida Nation retained its sovereignty and that Congress lacked plenary
power over the Oneida Nation. We reject this argument because it ignores the
Supreme Court precedent discussed above, which clearly holds that Congress has
plenary power to legislate in the field of Indian affairs. See Lara, 541 U.S. at 200.

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¶21 For all of the reasons explained above, we reject House’s argument
that Congress lacked the authority to enact Public Law 280. Accordingly, we
affirm House’s judgment of conviction and the order denying his motion for
postconviction relief.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5. (2019-20).

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