2008 WI App 95
court of appeals of
published opinion
Case No.: |
2007AP1985 |
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Complete Title of Case: |
†Petition for Review filed. |
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Ho-Chunk Nation, Petitioner-Appellant,† v. Wisconsin Department of Revenue, Respondent-Respondent. |
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Opinion Filed: |
May 1, 2008 |
Submitted on Briefs: |
January 14, 2008 |
Oral Argument: |
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JUDGES: |
Higginbotham, P.J., Dykman and Vergeront, JJ. |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the petitioner-appellant, the cause was
submitted on the briefs of Edward P. Sheu and Michael P. Murphy of Best & Flanagan LLP, |
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Respondent |
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ATTORNEYS: |
On behalf of the respondent-respondent, the cause was submitted on the brief of F. Thomas Creeron III, assistant attorney general, and J.B. Van Hollen, attorney general. |
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2008 WI App 95
COURT OF APPEALS DECISION DATED AND FILED May 1, 2008 David R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Ho-Chunk Nation, Petitioner-Appellant, v. Wisconsin Department of Revenue, Respondent-Respondent. |
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APPEAL
from an order of the circuit court for
Before Higginbotham, P.J., Dykman and Vergeront, JJ.
¶1 VERGERONT, J. This appeal concerns the Ho-Chunk Nation’s claim for a refund of cigarette taxes under Wis. Stat. § 139.323 (2005-06)[1] in respect to sales on the DeJope property. The Tax Appeals Commission denied the claim because it concluded the DeJope property was not “designated … trust land on or before January 1, 1983” as required by the statute. See § 139.323(3). The circuit court affirmed and the Ho-Chunk Nation appeals.
¶2 We agree with the commission and the circuit court that the
statutory phrase means that the
¶3 We also affirm the circuit court’s order denying the Nation’s motion for a remand to the commission for the purpose of submitting additional evidence.
BACKGROUND
¶4 The Ho-Chunk Nation (hereafter the Nation)[3]
is a federally recognized Indian tribe.
In August 1982, an authorized representative of the Secretary of the
United States Department of the Interior approved the purchase in trust for the
Nation of the DeJope property—a five-acre parcel of off-reservation property
located in the Town of Blooming Grove in
¶5 Wisconsin Stat. § 139.31
imposes an excise tax on the sale of cigarettes at the time of the sale and
provides that the tax shall be passed on to the ultimate consumer of the
cigarettes.
Refunds to Indian tribes. The department shall refund 70% of the taxes collected under s. 139.31(1) in respect to sales on reservations or trust lands of an Indian tribe to the tribal council of the tribe having jurisdiction over the reservation or trust land on which the sale is made if all the following conditions are fulfilled:
(1) The tribal council has filed a claim for the refund with the department.
(2) The tribal council has approved the retailer.
(3) The land on which the sale occurred was designated a reservation or trust land on or before January 1, 1983.
(4) The cigarettes were not delivered by the retailer to the
buyer by means of a common carrier, a contract carrier or the
(5) The retailer has not sold the cigarettes to another retailer or to a jobber.
¶6 “Trust lands” is defined in Wis.
Stat. § 139.30(13m) as “any lands in this state held in trust by
the
¶7 Relying on Wis. Stat. § 139.323, the Nation filed with the Department of Revenue a claim for refund of seventy percent of the taxes paid on cigarette sales by the Nation on the DeJope property during certain periods in 2003 and 2004. The Department denied the claim and denied the petition for redetermination on the ground that the DeJope property was not “designated … trust land on or before January 1, 1983” as required by § 139.323(3). The Nation filed a petition for review with the commission. The Nation’s position was that the DeJope property was “designated … trust land” in August 1982, when the Secretary’s authorized representative approved the purchase of the land in trust. The commission affirmed the Department on summary judgment. The commission agreed with the Department that the DeJope property was not “designated … trust land” until the United States held title, and that was not until an authorized representative of the United States approved the deed on January 31, 1983. The commission denied the Nation’s request for a rehearing.
¶8 The Nation appealed and the circuit court affirmed. The court concluded that it was more
reasonable to construe the phrase “designated … trust land” in Wis. Stat. § 139.323(3) to mean
held by the
DISCUSSION
¶9 On appeal the Nation renews its argument that “designated …
trust land” in Wis. Stat. § 139.323(3)
means the date on which the DeJope property was approved for purchase by the
I. Construction of Wis. Stat. § 139.323
¶10 The primary issue is the proper construction of the
statute. We review the commission’s
decision on this point, not that of the circuit court. Kamps v. DOR, 2003 WI App 106, ¶10
n.4, 264
¶11 The proper construction of a statute presents a question of
law, and our review is generally de novo.
¶12 When
we construe a statute, we begin with the language of the statute and
give it its common, ordinary, and accepted meaning, except that technical or
specially defined words are given their technical or special definitions. State ex rel. Kalal v. Circuit Court
for Dane County, 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d
110. We interpret statutory language in
the context in which it is used, not in isolation but as part of a whole, in
relation to the language of surrounding or closely related statutes, and we
interpret it reasonably to avoid absurd or unreasonable results.
¶13 Beginning with the statutory language here, we see that the introductory paragraph of Wis. Stat. § 139.323 provides for refunds of seventy percent of the cigarette taxes collected “in respect to sales on reservations or trust lands of an Indian tribe[.]”[5] (Emphasis added.) This language plainly means that the land on which the sale takes place must be reservation or trust land at the time of the sale. We do not understand the Nation to be arguing otherwise. The dispute between the parties arises because the condition establishing a limiting date uses the word “designated” prior to “reservation or trust land on or before January 1, 1983.” Section 139.323(3).
¶14 The Nation’s position is that the word “designated” must add a
meaning to “reservation or trust land”; otherwise it is surplus. The meaning it adds, according to the Nation,
is that the land need not actually be a reservation or land held in trust on or
before January 1, 1983, but must only be “designated” either a reservation or
trust land by that date. The Nation
asserts that the DeJope property was “designated” a trust land on the date the
Secretary’s authorized representative approved its purchase by the
¶15 The Department’s position is that “designated” is used to
identify the act of the
¶16 We do not agree with the Nation that a dictionary definition of
“designate” resolves the dispute. While
we may resort to a dictionary to determine the common meaning of a term, see State v. Sample, 215
¶17 We conclude the meaning of “designated … trust land” as in Wis. Stat. § 139.323(3) is ambiguous. The meanings proposed by both parties are reasonable in the context of this statute.
¶18 The parties have presented us with no legislative history regarding Wis. Stat. § 139.323. However, both refer us to the federal regulations and to federal case law in support of their positions.
¶19 The federal regulations, often referred to as the
“fee-to-trust” regulations, provide a definition of “trust land or land in trust
status” that is essentially the same definition as “trust lands” in Wis. Stat. § 139.30(13m): “land the title to which is held in trust by
the
¶20 These regulations do not use the term “designate” at any point
in the process. Nonetheless, the Nation
contends we should defer to a Bureau of Indian Affairs official’s letter on
what “designated” means. In a letter to
the Department concerning the DeJope property, written after this dispute
arose, the official refers to August 20, 1982, as the date on which the DeJope
property was “authorized/designated to be taken into trust” and also described
the “[s]ubsequent approval of the deed” as a “formality that would not impact
the prior authorization/designation .…”
If “designated … trust land” were a phrase used in the federal
regulations it might be reasonable to conclude the
¶21 Although the regulations provide no direct support for either
party’s proposed construction of “designated,” they do make clear that the
Secretary’s approval of a request to purchase is not the act by which the
¶22 Two federal cases cited by the Department support our
conclusion. In United States v. Keweenaw Bay
Indian Community, No. 2:92-CV-265, slip op. at 2 (W.D. Mich. Sept. 27,
1993), the court construed language in 25 U.S.C. § 2719 that prohibited
gaming on “lands acquired by the Secretary in trust for the benefit of an
Indian tribe” after a certain date. The
court concluded it was clear that land is acquired by the Secretary in trust
when the formalization of acceptance of the land in trust status occurs under
25 C.F.R. § 151.14, regardless of the date of the deed approved by the
Secretary.[6]
¶23 Thus, if the Department is correct that “designated … trust
land” means the act by which the
¶24 We now consider the federal case law that, the Nation contends,
supports its proposed construction of “designated … trust land.” These cases construe the term “Indian
country,” a term that has been used in federal statutes since the early
1880s. See United States v. McGowan, 302
¶25 The Nation is correct that the test for determining whether land is “Indian country” does not depend on whether it is “denominated ‘trust land’ or ‘reservation’… [but on] whether the area has been ‘validly set aside for the use of Indians as such, under the superintendence of the government.’” See id. at 511 (citations omitted). However, neither the fee-to-trust regulations nor Wis. Stat. § 139.323 use the term “Indian country.” Thus, the fact that this term might include land that is neither a reservation nor trust land does not aid us in construing “designated a reservation or trust land” in § 139.323(3).
¶26 The Nation cites
¶27 Finally, the Nation contends that, if the statutory language is
ambiguous, we must construe it in favor of the Nation because that principle
was established by the United States Supreme Court. The Nation refers us to Bryan v. Itasca County in
which the Court stated that, “in construing this ‘admittedly ambiguous’
statute, we must be guided by that ‘eminently sound and vital cannon’ that
‘statutes passed for the benefit of dependent Indian tribes … are to be
liberally construed, doubtful expressions being resolved in favor of the
Indians.’” 426
in the face of claims that ambiguous statutes abolish by implication Indian tax immunities. “This is so because … Indians stand in a special relation to the federal government from which the states are excluded unless Congress has manifested a clear purpose to terminate (a tax) immunity and allow States to treat Indians as part of the general community.”
Bryan, 426
¶28 The Nation points to cases from other states that have employed
this canon. In Dark-Eyes v. Commissioner of
Revenue Services, 887 A.2d 848, 851 (
¶29 We conclude the application of this canon is not appropriate in
this case. There is no issue of tribal
sovereignty. The Nation is not disputing
that the State of
¶30 Because the federal regulations and federal case law cited by the parties do not resolve the dispute, we return to an examination of the statutory language. We identify two problems with the Nation’s proposed construction. First, we can discern no rationale for anchoring the time limitation in Wis. Stat. § 139.323(3) to a broader concept of trust land than that in the introductory paragraph. In other words, we see no purpose in having a time period during which the property where the sale occurred meets the condition of subsec. (3) but for which no refund is available because the land was not held in trust at the time of the sale. The Nation offers no rationale for this discrepancy.
¶31 Second, tying the date in Wis.
Stat. § 139.323(3) to the approval of the request to purchase
produces uncertainty regarding the lands that will be eligible for the
refunds. Because § 139.323 affects
the State’s revenues,[10]
it is more reasonable that the legislature intended to choose a certain method
of determining which lands would qualify for the refunds. Lands that were held in trust by the
¶32 We conclude it is more reasonable to construe Wis. Stat. § 139.323(3) to mean that the land on which the sale occurred must have been acquired by the United States government in trust, rather than simply approved for purchase in trust, on or before January 1, 1983. This construction makes this condition congruent with the introductory language and provides a method for determining precisely which lands will qualify for the refund.
II. Supplementation of Record
¶33 In the circuit court the Nation moved for remand to the commission in order to submit evidence it had not previously submitted. The circuit court denied the motion because it concluded that the additional evidence did not create a material factual dispute and would not change its analysis.[11]
¶34 The Nation argues that, although the meaning of “designated … trust land” is plain and warrants “a summary reversal of the Commission’s decision,” there are “material facts not in the record that render the Commission’s decision unsupported by substantial evidence.” The Nation describes the additional evidence it wishes to submit as showing that the property was “designated” trust land before January 1983.
¶35 We conclude the circuit court properly denied the motion. The dispositive issue on this appeal is the meaning of “designated … trust land” in Wis. Stat. § 139.323(3). This is not a factual issue but a legal issue. We have determined, as did the circuit court, that this phrase means the date on which the United States government acquired the land in trust by formal acceptance under 25 C.F.R. § 151.14. The additional evidence does not create a factual dispute over when that occurred.
CONCLUSION
¶36 We conclude that the phrase “designated … trust land on or
before January 1, 1983” in Wis. Stat.
§ 139.323(3) means that the
By the Court.—Order affirmed.
[1] All references to the Wisconsin Statutes are to the 2005-06 version unless otherwise noted.
[2] All references to the Code of Federal Regulations, C.F.R., are to the 2007 version unless otherwise noted. We refer to the 2007 version because it is substantively the same as the 1982 version, which was in effect at the time of the relevant events. Only the numbering of the sections of 25 C.F.R. pt.151 has changed.
[3] The Ho-Chunk Nation was formerly known as the Wisconsin Winnebago Tribe.
[4] We give great weight deference when:
(1) the agency was charged by the legislature with the duty of administering the statute; (2) … the interpretation of the agency is one of long-standing; (3) ... the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) … the agency’s interpretation will provide uniformity and consistency in the application of the statute.
We give a lesser amount of deference—due weight—when the agency has some experience in the area but has not developed the expertise that necessarily places it in a better position than the court to make judgments regarding the interpretation of the statute.
… We give no deference to the agency, and review the issue de novo, when the issue before the agency is one of first impression or the agency’s position has been so inconsistent as to provide no real guidance.
Kamps v. DOR, 2003 WI App
106, ¶¶11-12, 264
[5] “Reservation” is defined in Wis. Stat. § 139.30(9) as “all land within the boundaries of the Bad River, Forest County Potawatomi, Lac Courte Oreilles, Lac du Flambeau, Menominee, Mole Lake, Oneida, Red Cliff, St. Croix and Stockbridge-Munsee reservations and the Winnebago Indian communities.” Because the parties’ arguments focus exclusively on the meaning of “designated” in connection with “trust land,” we do so as well.
[6] At the time of this decision, 25 C.F.R. § 151.14 was numbered 25 C.F.R. § 151.13. As previously noted, we use the current number. See footnote 2, supra.
[7] The Nation makes no claim in this case that a tax is being wrongfully imposed on the sale of cigarettes to tribal members. We note that Wis. Stat. § 139.325 provides that the “department may enter into agreements with Indian tribes to provide for the refunding of the cigarette tax imposed under s.139.31(1) on cigarettes sold on reservations to enrolled members of the tribe residing on the tribal reservation.” See Wis. Admin. Code §§ Tax 9.08 and 9.09 (Aug. 1996) for more detail on refunds regarding sales to residing tribal members.
[8] 25 C.F.R. pt. 120a (1981) was redesignated by 47 Fed. Reg. 61, 13,326 (March 30, 1982) (codified at 25 C.F.R. ch. I), and the substance of that section is currently codified at 25 C.F.R. pt. 151.
[9] The
Nation argues that under the Supremacy Clause of the United States
Constitution, federal law “prevails over any inconsistent language or
interpretation of Wis. Stat. § 139.323”
by the commission. However, the Nation has
not shown that the commission’s construction is inconsistent with federal
law. The Nation has identified no
federal statute, regulation, or case that decides what the term “designated …
trust land” means or that precludes the Wisconsin legislature from basing a
condition for tax refunds on the date on which the
[10] Wisconsin Stat. § 139.323 was
enacted as part of the budget bill, 1983
[11]
Additional evidence; trial; motion to dismiss; amending petition. (1) If before the date set for trial, application is made to the circuit court for leave to present additional evidence on the issues in the case, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceedings before the agency, the court may order that the additional evidence be taken before the agency upon such terms as the court may deem proper. The agency may modify its findings and decision by reason of the additional evidence and shall file with the reviewing court the additional evidence together with any modified or new findings or decision.