In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1663
STEVEN J. BURGESS,
Petitioner-Appellant,
v.
STEVEN WATTERS,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04-C-544—Barbara B. Crabb, Chief Judge.
____________
ARGUED SEPTEMBER 19, 2005—DECIDED NOVEMBER 2, 2006
____________
Before RIPPLE, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. Steven J. Burgess was involun-
tarily committed to a Wisconsin state mental health facility
after a jury found that he was a sexually violent person as
defined in Wisconsin’s Sexually Violent Person Commit-
ment Statutes, Wis. Stat. § 980 et seq. (chapter 980). Both
the Wisconsin Court of Appeals and the Supreme Court of
Wisconsin affirmed the judgment ordering his commitment.
After exhausting his state court remedies, he filed a petition
for a writ of habeas corpus in the United States District
Court for the Western District of Wisconsin, and the district
court denied relief. Burgess now appeals to this court.
2 No. 05-1663
What distinguishes this case from the many habeas
corpus petitions this court entertains each term is that
it involves one additional sovereign—Burgess is a mem-
ber of a federally recognized Indian tribe. He argues that as
a legal resident of an Indian reservation, the State of
Wisconsin lacked jurisdiction to commit him involuntarily
as a sexually violent person. He relies on Public Law 280,
67 Stat. 588 (1953), codified in part at 18 U.S.C. § 1162, 28
U.S.C. § 1360, under which Congress expressly granted
Wisconsin criminal and limited civil jurisdiction over
matters involving Indians. We conclude that the Supreme
Court of Wisconsin’s ultimate resolution of Burgess’s
jurisdictional claim was not contrary to or an unreasonable
application of clearly established law as articulated by
the Supreme Court of the United States, and we thus affirm
the district court’s denial of the petition.
I
Burgess is an enrolled member of the Lac du Flambeau
Band of Lake Superior Chippewa Indians (Lac du Flam-
beau), a federally-recognized Indian tribe. For most of his
life, Burgess has lived on the Lac du Flambeau Reservation
in Vilas County, Wisconsin; he is a legal resident of his
tribal reservation land.
In February of 1995, Burgess was convicted of attempted
second-degree sexual assault of a child (a crime that he
committed on his reservation) in the Circuit Court for Vilas
County, Wisconsin. He was subsequently incarcerated at
the Oshkosh Correctional Institution, a prison facility of the
State of Wisconsin. There is no question that the Wisconsin
Circuit Court had jurisdiction, conferred by § 2 of Public
Law 280, to try Burgess for this crime. See State v. Webster,
338 N.W.2d 474, 476 (Wis. 1983) (“Public Law 280 gave
certain states, including Wisconsin, jurisdiction over crimes
committed by or against Indians in Indian country within
No. 05-1663 3
each state.”); see also 18 U.S.C. § 1162(a) (“[T]he 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.”).
On November 17, 1998, the day that Burgess was sched-
uled to be released from prison, the State of Wisconsin filed
a petition seeking his commitment as a chapter 980
“sexually violent person.” At that time, chapter 980 defined
“sexually violent person” as:
a person who has been convicted of a sexually violent
offense, or has been found not guilty of or not responsi-
ble for a sexually violent offense by reason of insanity
or mental disease, defect, or illness, and who is danger-
ous because he or she suffers a mental disorder that
makes it substantially probable that the person will
engage in acts of sexual violence.
Wis. Stat. § 980.01(7) (amended 2006). (The statute has
recently been amended; the last clause now reads “that
the person will engage in one or more acts of sexual vio-
lence.” Wis. Stat. § 980.01(7) (2006) (emphasis added).)
Once a court or jury has determined after proper pro-
ceedings that the individual is a sexually violent person,
“the court shall order the person to be committed to the
custody of the [D]epartment [of Health and Family Services]
for control, care and treatment until . . . the person is no
longer a sexually violent person.” Wis. Stat. § 980.06.
The statute also spells out the requirements for the
commitment procedures. The process begins with a probable
cause hearing, to determine whether “there is probable
cause to believe that the person named in the petition is a
sexually violent person.” Id. § 980.04(2). At the time the
state filed its chapter 980 petition in Burgess’s case, the
statute provided that “[i]f the court determines after a
hearing that there is probable cause to believe that the
person named in the petition is a sexually violent person,
4 No. 05-1663
the court shall order that the person be taken into custody
if he or she is not in custody and shall order the person to
be transferred within a reasonable time to an appropriate
facility for an evaluation as to whether the person is a
sexually violent person.” Id. § 980.04(3) (amended 2006). On
November 19, 1998, the circuit court found probable cause
that Burgess was a sexually violent person and ordered him
transferred to a state mental health institution for evalua-
tion.
Burgess requested a jury for the commitment proceeding.
See id. § 980.05(2). At the hearing, the state bore the
burden of proving beyond a reasonable doubt that he is a
sexually violent person. Id. § 980.05(3)(a). At the time
Burgess’s petition was pending before the circuit court,
the statute also afforded him “all constitutional rights
available to a defendant in a criminal proceeding,” id.
§ 980.05(1m). That provision has since been repealed, but
we have no occasion to consider any implications of the
change, as it has no effect on Burgess.
Prior to his hearing, Burgess filed a host of motions. Most
relevant to this appeal, he moved to dismiss the state’s
petition on the ground that the circuit court lacked jurisdic-
tion to conduct involuntary civil commitment proceedings
against enrolled tribal members. His position, essentially,
was that a chapter 980 proceeding falls into the cracks
between the jurisdiction conferred by the criminal and civil
provisions of Public Law 280. He acknowledged that the
federal statute grants Wisconsin broad criminal jurisdiction
over offenses committed by Indians both within the state
and on their reservation land, but he argued that this was
not a criminal proceeding. The grant of civil jurisdiction in
§ 4 of Public Law 280, codified at 28 U.S.C. § 1360(a), is
limited to private, civil litigation involving tribal members
in state court and does not give the state general civil
regulatory authority over reservation Indians; Burgess’s
position was that the involuntary commitment process
No. 05-1663 5
more resembled a regulatory action than a suit in tort or
contract.
After receiving Burgess’s motion, the circuit court wrote a
letter to the Lac du Flambeau tribal court asking whether
it could handle Burgess’s commitment proceeding. That
court declined jurisdiction, indicating that it was not in a
position to hear Burgess’s case because the tribe at that
time had no laws or ordinances calling for the indefinite
commitment of sexually violent persons. As a result, the
circuit court denied Burgess’s motion based on its under-
standing that the state was allowed to assert jurisdiction
over reservation Indians in any area where the tribe did not
have an ongoing tradition of acting.
At the hearing, both sides presented expert testimony
about Burgess’s mental condition and the likelihood of
recidivism. The jury found Burgess to be a sexually vio-
lent person. On August 10, 2000, the circuit court entered a
judgment indefinitely committing Burgess to the Wisconsin
Department of Heath and Family Services. Burgess filed a
number of post-judgment motions, including a motion for a
new trial or relief from judgment based in part on his
jurisdictional objection, but the circuit court denied these
motions.
Burgess appealed. Among the issues he raised before the
Wisconsin Court of Appeals was his argument that the state
court lacked jurisdiction to conduct chapter 980 proceedings
against enrolled tribal members, particularly where the
underlying offense was committed on reservation land. The
court of appeals affirmed. It agreed with Burgess that
chapter 980 was not a criminal or punitive law, and there-
fore that the circuit court did not have criminal jurisdiction
over Burgess’s case. In re the Commitment of Steven J.
Burgess, 654 N.W.2d 81, 88 (Wis. Ct. App. 2002) (citing
State v. Carpenter, 541 N.W.2d 105, 112-13 (1995)). Never-
theless, it rejected Burgess’s argument that this proceeding
6 No. 05-1663
fell outside the scope of Public Law 280’s grant of civil
jurisdiction.
Burgess then turned to the state supreme court, which
affirmed the judgment of the court of appeals on different
grounds. The supreme court reasoned that the circuit court
had jurisdiction to conduct Burgess’s chapter 980 proceed-
ings under Public Law 280’s broad grant of criminal
jurisdiction because the underlying conduct at issue,
sexually violent behavior, was prohibited by state crim-
inal law. The supreme court also concluded that Bur-
gess’s commitment proceeding was somehow ancillary to the
circuit court’s general criminal jurisdiction over tribal
members because the “civil proceedings under chapter 980
are enveloped on both sides by criminal conduct.” In re the
Commitment of Steven J. Burgess, 665 N.W.2d 124, 132
(Wis. 2003). In this connection, it pointed out that “only
persons who have committed sexually violent offenses
are eligible for commitment under chapter 980” and
“chapter 980 commitments are intended to protect the
public by preventing future acts of sexual violence.” Id. In
the alternative, the supreme court decided that “even if
chapter 980 is strictly construed as a ‘civil’ law in its
entirety,” it is not the type of civil law that gives the
state general regulatory authority over tribal members.
Instead, as a more ordinary civil law, it falls within Public
Law 280’s grant of civil jurisdiction. Id. In September 2003,
the court denied Burgess’s motion for reconsideration; the
United States Supreme Court denied certiorari on March
29, 2004.
Burgess then filed this petition for a writ of habeas
corpus. See 28 U.S.C. § 2254. The district court adopted
a magistrate judge’s recommendation to deny Burgess’s
petition on February 14, 2005. Although the district court
believed that Burgess had presented a strong argument
that the Supreme Court of Wisconsin erred in determining
that the state had jurisdiction to commit him under chapter
No. 05-1663 7
980, it held that the state court’s ruling was nonetheless not
contrary to or an unreasonable application of clearly
established precedent from the Supreme Court of the
United States. The district court further opined that in
cases such as this, where reasonable jurists can debate
whether a particular state court ruling is contrary to federal
law, it is up to the United States Supreme Court to make
the final call. Recognizing the substantiality of the jurisdic-
tional issue, the court granted Burgess’s motion for a
certificate of appealability on March 10, 2005.
II
On appeal, Burgess makes a number of powerful argu-
ments concerning general principles of tribal sovereignty
and the extent of Congress’s grant of jurisdiction to the
states over the affairs of reservation Indians. As interesting
as the merits of Burgess’s jurisdictional arguments
are, because he filed his petition after the effective date
of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U.S.C. § 2254, its standard of review
governs this case. See Gomez v. Berge, 434 F.3d 940, 942
(7th Cir. 2006). Under AEDPA, habeas corpus relief is
available only if Burgess can establish that the state court
proceedings “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or “resulted in a decision that was based on
an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). We review the decision of the last state court to
rule on the merits of the petitioner’s claim, here the Wiscon-
sin Supreme Court. See McFowler v. Jaimet, 349 F.3d 436,
446 (7th Cir. 2003).
Under AEDPA, a state court’s decision is “contrary to”
clearly established federal law “when the court reache[s] a
conclusion ‘opposite to that reached by [the Supreme] Court
8 No. 05-1663
on a question of law’ or confront[s] ‘facts that are materially
indistinguishable from a decision of the Supreme Court and
nevertheless arrives at a result different from [its] prece-
dent.’ ” Laxton v. Bartow, 421 F.3d 565, 570 (7th Cir. 2005)
(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
A state court “unreasonably applies” clearly established
Supreme Court decisions when it “correctly identifies the
governing legal rule but applies it unreasonably to the facts
of a particular [petitioner’s] case.” Id. (quoting Williams,
529 U.S. at 407-08) (internal quotation marks omitted). In
determining whether a state court has fallen afoul of the
“unreasonable application” branch of AEDPA, “a federal
habeas court may not issue the writ simply because that
court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Williams, 529 U.S.
at 411. The federal court may act only if the state court’s
decision is “objectively unreasonable.” Id. at 409. This court
has defined “objectively unreasonable” as “lying well outside
the boundaries of permissible differences of opinion,”
Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); we
will allow the state court’s decision to stand if it is “one of
several equally plausible outcomes.” Hall v. Washington,
106 F.3d 742, 749 (7th Cir. 1997).
Within AEDPA’s framework, we review the district court’s
decision to deny Burgess’s habeas petition de novo. See
Horton v. Litscher, 427 F.3d 498, 504 (7th Cir. 2005).
Whether the state court’s decision was contrary to or an
unreasonable application of clearly established federal
law “is a mixed question of law and fact that we tradition-
ally also review de novo but with a grant of deference to any
reasonable state court decision.” Jackson v. Frank, 348 F.3d
658, 662 (7th Cir. 2003) (quoting Schaff v. Snyder, 190 F.3d
513, 522 (7th Cir. 1999) (emphasis in original)). In this case,
as in all cases that come to us under AEDPA, we emphasize
that we are expressing no opinion about the correctness of
No. 05-1663 9
the state court’s ruling as a matter of first principles.
Should a case in this area reach us through a different
procedural avenue without the AEDPA constraints on
review, we would be free to evaluate it for ourselves.
III
As a general matter, Indian tribes “retain attributes of
sovereignty over both their members and their territory”;
“tribal sovereignty is dependent on, and subordinate to,
only the Federal government, not the States.” California v.
Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987)
(internal citations omitted). Although a state is not com-
pletely barred from exercising jurisdiction over the activi-
ties of tribal members on reservation land lying within its
boundaries, “the exercise of state jurisdiction is limited and
must be based upon a specific grant of authority by Con-
gress.” St. Germaine v. Circuit Court for Vilas County, 938
F.2d 75, 76 (7th Cir. 1991). One such delegation of authority
is found in Public Law 280, which grants six states, includ-
ing Wisconsin, “jurisdiction over specified areas of Indian
country.” Cabazon, 480 U.S. at 207. In enacting Public Law
280, Congress was primarily concerned with “the problem
of lawlessness on certain Indian reservations,” as well as
the “absence of adequate tribal institutions for law enforce-
ment.” Bryan v. Itasca County, Minn., 426 U.S. 373, 379
(1976). With this in mind, the “central focus” of the Act, id.
at 380, was to give the enumerated states “broad criminal
jurisdiction over offenses committed by or against Indians
within all Indian country within the State.” Cabazon, 480
U.S. at 207. Section 2 of the Act therefore grants “jurisdic-
tion over offenses committed by or against Indians in the
areas of Indian country . . . 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
10 No. 05-1663
and effect within such Indian country as they have else-
where within the State or Territory.” 18 U.S.C. § 1162(a).
Section 4 of Public Law 280 addresses civil cases, confer-
ring upon the listed states “jurisdiction over civil causes of
action between Indians or to which Indians are parties . . .
to the same extent that such State has jurisdiction over
other civil causes of action, and those civil laws of such
State that are of general application to private persons or
private property shall have the same force and effect within
Indian country as they have elsewhere within the State.” 28
U.S.C. § 1360(a). The Act’s grant of civil jurisdiction,
however, is more restricted than its grant of criminal
jurisdiction. Cabazon, 480 U.S. at 207. The Supreme Court
has read the statute as one that is “primarily intended to
redress the lack of adequate Indian forums for resolving
private legal disputes between reservation Indians, and
between Indians and other private citizens, by permitting
the court of the States to decide such disputes.” Bryan, 426
U.S. at 383. In Bryan, the Court wrote that “the consistent
and exclusive use of the terms ‘civil causes of action,’
‘aris(ing) on,’ ‘civil laws . . . of general application to private
persons or private property,’ and ‘adjudica(tion),’ in both the
Act and its legislative history virtually compel[led] [the]
conclusion that the primary intent of § 4 was to grant
jurisdiction over private civil litigation involving reserva-
tion Indians in state court,” and, importantly for Burgess’s
argument, not to confer general state civil regulatory
control over Indian reservations. Id. at 384-85.
The Supreme Court has also emphasized that Public Law
280 “plainly was not intended to effect total assimilation of
Indian tribes into mainstream American society,” recogniz-
ing that “a grant to States of general civil regulatory power
over Indian reservations would result in the destruction of
tribal institutions and values.” Cabazon, 480 U.S. at 208.
Thus, the proper characterization of a state law as criminal
No. 05-1663 11
or civil is an important first step in determining whether it
can be applied on a reservation. Id. In Cabazon, which was
about the applicability of a general California bingo statute
on reservations, the Court held that the critical distinction
is between state “criminal/ prohibitory” laws and state
“civil/regulatory” laws. Id. at 209-10. If a state law is
designed generally to prohibit certain conduct, it should be
classified as criminal; if it “generally permits the conduct at
issue, subject to regulation, it must be classified as
civil/regulatory and Pub. L. 280 does not authorize its
enforcement on an Indian reservation. The shorthand test
is whether the conduct at issue violates the State’s public
policy.” Id. at 209. The Court concluded that the bingo
statute was regulatory and thus could not be enforced on
the reservation. Id. at 221-22.
IV
Although the Supreme Court of Wisconsin correctly
identified Bryan and Cabazon as the governing Supreme
Court precedents, more than a correct citation is needed
to avoid a decision “contrary to” clearly established fed-
eral law. As we noted earlier, a state court decision is
“contrary to” a decision of the Supreme Court of the United
States if, on materially indistinguishable facts, it comes out
the opposite way. AEDPA in effect draws a line between
decisions that are flatly inconsistent with earlier precedents
of the Supreme Court, and decisions that, while not incon-
sistent in this literal sense, unreasonably apply the Court’s
decisions. In the present case, it makes little difference in
the end whether we analyze the state court’s decision under
the “contrary to” part of AEDPA or under the “unreasonable
application” part. One way or the other, the question at the
end of the day is whether a writ of habeas corpus may issue.
We therefore discuss the Supreme Court of Wisconsin’s
application of federal precedents with both parts of AEDPA
in mind.
12 No. 05-1663
The first task is to see whether chapter 980 of the Wiscon-
sin statutes should be classified as criminal or civil. The
Wisconsin court held that chapter 980 is more criminal than
civil for purposes of Public Law 280 because the underlying
conduct addressed by chapter 980, sexually violent behav-
ior, is contrary to Wisconsin’s public policy; it is not conduct
that the state generally permits subject to regulation. The
state supreme court further reasoned that chapter 980 is
more accurately characterized as criminal because “only
individuals who have been convicted of certain
crimes—‘sexually violent offenses,’ may be committed
pursuant to chapter 980” and “the primary purpose of
chapter 980 is to protect the public from future acts of
sexual violence.” In re Burgess, 665 N.W.2d at 132.
Rather than confronting this rationale directly, Burgess
devotes the bulk of his opening brief in this court to a
discussion of the decisions of the Supreme Court of Wiscon-
sin in County of Vilas v. Chapman, 361 N.W.2d 699 (Wis.
1985) and State v. Webster, 338 N.W.2d 474 (Wis. 1983).
Errors in these decisions, he believes, tainted the court’s
ruling in his case. According to Burgess, the Supreme Court
of Wisconsin has taken the view that the state is free to
assert jurisdiction over reservation Indians in any area
where the tribe does not have an ongoing tradition of
acting. This proposition, he argues, conflicts with Supreme
Court precedent providing that Congress must expressly
grant the state jurisdiction over the activity in question.
The problem with Burgess’s argument is that it does not
address the basis on which the state court ultimately ruled.
Rather than relying on Chapman or Webster, the state
supreme court held that Congress, through Public Law 280,
explicitly granted the state jurisdiction over Burgess’s
commitment proceeding. Under the circumstances, neither
Chapman nor Webster is before us, and we have no occasion
to decide whether one or the other runs afoul of applicable
Supreme Court precedent. Because the Supreme Court of
No. 05-1663 13
Wisconsin relied on Cabazon, it is with that decision that
we begin our analysis.
Cabazon is more helpful for distinguishing between
civil and criminal cases for purposes of Public Law 280 than
it is for drawing the line between civil cases that the state
may entertain and those it may not. The characterization of
a state law as “criminal” or “civil” for purposes of the federal
jurisdictional statute is a question of federal law: the
question is which state proceedings, however labeled, did
Congress mean to permit the states to conduct with respect
to their Native American populations. Cf. Taylor v. United
States, 495 U.S. 575, 590-91, 598 (1990) (adopting uniform
federal definition of term “burglary” for purposes of 18
U.S.C. § 924(e)). The state court’s choice of label cannot be
the last word on the matter. Ultimately, it is federal law, as
authoritatively interpreted by the Supreme Court of the
United States, that provides the answer we seek.
With respect, we cannot agree with the Supreme Court of
Wisconsin that chapter 980 qualifies as a “criminal” statute.
If it is, indeed, a criminal statute, serious consequences
would follow in other areas of the law. A person like
Burgess who already has been convicted and punished for
certain behavior would be able to plead double jeopardy, for
example. Criminal procedure rules of constitutional dimen-
sion would have to be respected during the proceeding. But
the Supreme Court of the United States has squarely
rejected this characterization for a law materially identical
to Wisconsin’s, in Kansas v. Hendricks, 521 U.S. 346 (1997).
In Hendricks, the Court held that a Kansas statute that
permitted confinement of a person who was likely to engage
in “predatory acts of sexual violence” violated neither the
Double Jeopardy Clause of the Constitution nor the ex post
facto clause. Id. at 361. It was “unpersuaded . . . that
Kansas has established criminal proceedings.” Id.
Other decisions, including some from Wisconsin itself,
have also rejected the argument that statutes like chapter
14 No. 05-1663
980 create criminal offenses. See, e.g., Seling v. Young, 531
U.S. 250 (2001) (recognizing that Washington State’s
Community Protection Act of 1990, which is virtually
indistinguishable from Wisconsin’s chapter 980 statute, was
civil as opposed to criminal and rejecting contention that a
habeas petitioner could mount a challenge that the Act was
“criminal as applied”); Allen v. Illinois, 478 U.S. 364 (1986)
(holding that proceedings under the Illinois Sexually
Dangerous Persons Act were not criminal for purposes of
Fifth Amendment’s prohibition of compulsory self-incrimi-
nation); State v. Carpenter, 541 N.W.2d 105, 107 (Wis. 1995)
(“We conclude in this opinion that ch. 980 creates a civil
commitment procedure primarily intended to protect the
public and to provide concentrated treatment to convicted
sexually violent persons, not to punish the sexual
offender.”); Jay M.H. v. Winnebago County Dept. of Health
and Human Servs., 714 N.W.2d 241, 244 n.4 (Wis. App.
2006) (“Wisconsin Stat. ch. 980 creates a civil commitment
procedure primarily intended to provide treatment and
protect the public, is not criminal in nature, and is not
intended to punish the offender.”). In Burgess’s case itself,
the state supreme court acknowledged its previous holding
that the chapter 980 statute was “civil rather than crimi-
nal,” In re Burgess, 665 N.W.2d at 132, but it nonetheless
determined that the state had jurisdiction to commit
Burgess under Public Law 280’s grant of criminal jurisdic-
tion. But the court gave no reason why this state statute
should suddenly become criminal solely for the purpose of
jurisdiction over crimes committed by Indians, when it has
authoritatively been deemed civil in all other contexts.
The state court noted that chapter 980 is actually aimed
at prohibiting “conduct” that violates Wisconsin’s public
policy. That alone, however, cannot be enough; exactly
the same thing could have been said about the Kansas
statute at issue in Hendricks. Without question, the past
commission of a sexual assault is “conduct” that offends
No. 05-1663 15
state public policy and for which there are criminal penal-
ties. See Wis. St. §§ 940.225, 948.02. Chapter 980, however,
has been described by the Supreme Court of Wisconsin as
a future-oriented statute that is “primarily intended to
protect the public and to provide concentrated treatment to
convicted sexually violent persons.” Carpenter, 541 N.W.2d
at 107. Like the involuntary commitment statute at issue in
Hendricks, chapter 980 does not “make the commission of
a specified ‘offense’ the basis for invoking the commitment
proceedings. Instead, it uses a prior conviction (or previ-
ously charged conduct) for evidentiary purposes to deter-
mine whether a person suffers from a mental abnormality
. . . and also poses a threat to the public.” 521 U.S. at 370.
We are also unpersuaded by the proposition that a law
like chapter 980 should be regarded as criminal for pur-
poses of Public Law 280 because, as the Wisconsin Supreme
Court put it, it is “enveloped on both sides” by criminal
conduct. In re Burgess, 665 N.W.2d at 132. In fact, that is
not necessarily the case. Although chapter 980 certainly
applies to persons like Burgess who have been convicted of
sexually violent offenses, it also applies to individuals who
“ha[ve] been found not guilty of or not responsible for a
sexually violent offense by reason of insanity or mental
disease, defect, or illness.” Wis. St. § 980.01(7) (amended
2006). On the back end, the Wisconsin Supreme Court
found support for a “criminal” classification in the fact that
chapter 980 is intended to protect the public by preventing
future acts of sexually violent behavior. This is inconsistent,
however, with decisions of the Supreme Court of the United
States that have characterized these and similar schemes
as civil precisely because they are aimed at protecting the
public from future danger. See, e.g., Hendricks, 521 U.S. at
361 (“Nothing on the face of the statute suggests that the
legislature sought to create anything other than a civil
commitment scheme designed to protect the public from
harm.”); Smith v. Doe, 538 U.S. 84, 108 (2003) (holding that
16 No. 05-1663
sex offender registration statute is civil and nonpunitive
and recognizing that “[e]nsuring public safety is. . .a
fundamental regulatory goal”); Jones v. United States, 463
U.S. 354, 361-62(1983) (recognizing that the “statutory
scheme for commitment of insane criminals is . . . a regula-
tory, prophylactic statute, based on a legitimate governmen-
tal interest in protecting society and rehabilitating mental
patients” (internal quotation marks omitted)).
In the final analysis, if this case turned solely on the
question whether clearly established federal law would
permit a characterization of chapter 980 as criminal, we
would need to reverse. It does not, however. Public Law 280
also permits the designated states to exercise certain forms
of civil jurisdiction over Indians. The Supreme Court of
Wisconsin squarely addressed this alternate ground
and held that “even if chapter 980 is strictly construed
as a ‘civil’ law in its entirety, it is civil/adjudicatory rather
than civil/regulatory, and therefore falls within PL-280’s
grant of civil jurisdiction to the State.” In re Burgess, 665
N.W.2d at 132. We therefore turn now to that rationale.
V
In upholding the state’s power to treat Burgess’s case
under the civil jurisdiction permitted by federal law, the
state supreme court relied on the Supreme Court’s deci-
sion in Bryan. In that case, the Court considered whether
§ 4 of Public Law 280 gave states the power to tax reserva-
tion Indians under specified conditions. In concluding
that the state lacked this power, the Court reasoned that §
4 was primarily intended “to redress the lack of ade-
quate Indian forums for resolving private legal disputes
between reservation Indians, and between Indians and
other private citizens,” not to “confer general state civil
regulatory authority over reservation Indians.” Bryan, 426
U.S. at 383, 384. In a footnote, the Court cited a law review
No. 05-1663 17
article for the proposition that “Congress intended ‘civil
laws’ to mean those laws which have to do with private
rights and status. Therefore, ‘civil laws . . . of general
application to private persons or private property’ would
include the laws of contract, tort, marriage, divorce, insan-
ity, descent, etc., but would not include laws declaring or
implementing the states’ sovereign powers, such as the
power to tax, grant franchises, etc.” Id. at 385 n. 10. Based
upon this language, the Wisconsin Supreme Court deter-
mined that chapter 980 is a law having to do with private
rights and status, more akin to a proceeding to adjudicate
insanity than to a law conferring upon the state the power
to tax.
Although it is clear that a state does not have the
power to tax reservations under Public Law 280’s limited
grant of civil jurisdiction, the Supreme Court has not had
much to say about how to determine whether a law seeks to
adjudicate private rights, and thus falls within the bounds
of § 4 of Public Law 280, or is a regulatory scheme. This
court has questioned whether a state would have jurisdic-
tion involuntarily to commit an enrolled tribal member, but
we did not need to decide the issue. See United States v.
Teller, 762 F.2d 569, 577 (7th Cir. 1985) (noting that
“questions of jurisdiction are raised by two facts—the crime
took place on an Indian reservation, and so trial was to be
in federal court, and the defendant is an Indian, and so
perhaps not subject to the state’s civil commitment proce-
dures.”). There are certainly strong arguments that chapter
980 falls outside Public Law 280’s limited grant of civil
jurisdiction. In other contexts, the Supreme Court has
expressly classified these types of civil laws that aim to
protect the public from danger as “regulatory.” See, e.g.,
Smith v. Doe, 538 U.S. 84, 108 (2003); Jones v. United
States, 463 U.S. 354, 361-62 (1983); Addington v. Texas, 441
U.S. 418, 426 (1979) (“[T]he state also has authority under
its police power to protect the community from the danger-
18 No. 05-1663
ous tendencies of some who are mentally ill.”). At least one
court has determined that a state lacks the authority
involuntarily to commit a mentally ill Native American who
resides on a reservation. White v. Califano, 437 F.Supp.
543, 550 (D.S.D. 1977), aff’d., 581 F.2d 697 (8th Cir. 1978)
(determining that because “the process of committing
someone involuntarily brings the power of the state deep
into the lives of the persons involved in the commitment
process . . . applying the procedures of an involuntary
commitment to an Indian person in Indian country would
require severe intrusions into the tribe’s vestigial sover-
eignty”). The Wisconsin Attorney General has opined that
Public Law 280 applies only to disputes between private
parties, which would seem to exclude a proceeding like the
one Burgess faced. See 70 Wis. Op. Atty. Gen 237 at *3
(1981).
In United States v. Teller, we recognized that the question
whether a reservation Indian could be subject
to involuntary civil commitment was “an open question of
some difficulty.” 762 F.2d at 577 n.5. Relying on the lan-
guage in Bryan suggesting that proceedings to adjudicate
status, such as insanity, probably fall within Public Law
280’s grant of civil jurisdiction, the Supreme Court of
Wisconsin resolved this question in favor of the state’s
jurisdiction. The Supreme Court of the United States has
not spoken to this precise question. Burgess interprets
Bryan’s reference to “status” and “insanity” as referring
to private disputes concerning insanity, such as a case
concerning guardianship, and not those cases to which
the state is a party. This interpretation is certainly reason-
able; in fact, the Wisconsin Attorney General may well
agree with Burgess in this matter. See 70 Wis. Op. Atty.
Gen 237 at *3 (in the context of child custody mat-
ters involving Indians, opining that the state would not
have jurisdiction involuntarily to terminate parental rights,
but “where the proceeding is not between the state and
No. 05-1663 19
individual, but rather primarily involves only private
persons as in a voluntary foster care placement, state law
may be applied under Public L. No. 280’s jurisdictional
grant.”).
Burgess’s view, however, is not the only reasonable
interpretation. Indeed, at least one other court has rejected
the argument that civil actions to which the state is a party
automatically fall outside Public Law 280’s limited grant of
civil authority. See Doe v. Mann, 415 F.3d 1038 (9th Cir.
2005) (specifically rejecting the Wisconsin Attorney Gen-
eral’s opinion distinguishing between voluntary and
involuntary child custody matters and determining that
California’s enforcement of its child dependency laws fell
within state’s civil adjudicatory jurisdiction and thus state
could terminate reservation Indian’s parental rights). This
is enough to show, under the generous AEDPA standards,
that the Wisconsin Supreme Court’s conclusion does not lie
outside the bounds of permissible differences of opinion. We
thus cannot conclude that the court unreasonably applied
clearly established federal law.
VI
The Wisconsin Supreme Court’s determination that
Public Law 280 conferred jurisdiction on the State of
Wisconsin to commit Burgess under applicable state law
was not contrary to or an unreasonable application of
clearly established federal law. We therefore AFFIRM the
district court’s judgment denying Burgess’s petition for a
writ of habeas corpus.
20 No. 05-1663
RIPPLE, Circuit Judge, concurring in the judgment. In my
view, the Supreme Court of Wisconsin reached a reasonable
result when it determined that, for purposes of section 2 of
Public Law 280, 67 Stat. 588 (1953), the commitment
procedure under the Wisconsin Sexually Violent Persons
Commitment Statutes, Wis. Stat. § 980 et seq. (chapter
980), is criminal in nature.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-2-06