Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Native American Legally Civilly Committed

The Seventh Circuit Court of Appeals has upheld a ruling by the Wisconsin Supreme Court that allows a Native American to be involuntarily committed as a sexually violent person. The Seventh Circuit's ruling relies substantially on the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in finding the lower court's ruling was a reasonable application of clearly established federal law.

After completing his 1995 sentence on a conviction of attempted second-degree sexual assault of a child, Steven J. Burgess was served on November 17, 1998 with a petition filed by the State of Wisconsin to commit him as a sexually violent person under Wis. Stat. § 980. He was ultimately found by a jury to fit the criteria to be involuntarily committed.

During those proceedings, Burgess argued that because he was a resident of and his crime was committed upon the lands of the Lac du Flambeau Band of Lake Superior Chippewa Indians, a federally recognized Indian tribe, the State of Wisconsin had no jurisdiction to involuntarily commit him. The state courts disagreed. The federal district court denied Burgess' habeas petition on AEDPA grounds, but granted a certificate of appealability.

The Seventh Circuit noted that "Burgess makes a number of powerful arguments concerning general principles of tribal sovereignty and the extent of Congress's grant of jurisdiction to states over the affairs of reservation Indians." Nonetheless, the appeals court held the petition was governed by AEDPA.

At issue was the extent of jurisdiction granted to Wisconsin under Public Law 280, 67 Stat. 588 (1953), codified in part at 18 U.S.C. § 1162 and 28 U.S.C. § 1360. The appeals court found that Burgess was properly convicted by Wisconsin. At issue, however, was the sex offender commitment law.

The Seventh Circuit disagreed with the Wisconsin Supreme Court's classification of § 980 as being criminal in nature. If so, the statute would be invalid under double jeopardy and ex post facto standards. Federal and Wisconsin rulings hold the law to be civil in nature.

The Seventh Circuit then turned to the alternative argument 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." The appellate court said there were strong arguments that § 980 falls outside Public Law 280's limited grant of civil jurisdiction.

At least one court has held that the state lacks jurisdiction to involuntarily commit a reservation Indian. Even the Wisconsin Attorney General had opined that Public Law 280 only applies to disputes between private parties. A Ninth Circuit ruling, however, rejected that opinion.
As such, the Seventh Circuit applied AEDPA, holding the Wisconsin Supreme Court's conclusion did not lie outside the bounds of permissible difference of opinion. The district court's order denying habeas relief was affirmed. See: Burgess v. Watters, 467 F.3d 676 (7th Cir. 2006).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Burgess v. Watters