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MADISON - Attorney General J.B. Van Hollen today issued a formal opinion concluding that section 66.0313 of the statutes which governs mutual assistance requests among law enforcement agencies does not apply to tribal law enforcement agencies operated by any of Wisconsin's eleven Native American tribes and bands. When applicable, the mutual assistance statute allows a law enforcement agency to request the assistance of another law enforcement agency. If assistance is provided, the responding agency personnel may exercise law enforcement powers within the jurisdiction of the requesting agency consistent with the request and are deemed employees of the requesting agency while acting in response to the request.
Van Hollen found that a tribal law enforcement agency does not fall within the applicable statutory definition of "law enforcement agency" in the mutual assistance statute because it is not an agency of the state or a political subdivision of the state as required by the incorporated statutory definition. Van Hollen's opinion further noted that the Legislature could have chosen to incorporate an existing, separate definition of a "tribal law enforcement agency" into the mutual assistance statute, but did not do so.
Van Hollen also said that the power to assist or request assistance under the mutual assistance statute is not included in the powers that are granted to qualified tribal law enforcement officers who exercise state law enforcement powers on their reservations pursuant to section 165.92 of the statutes.
Van Hollen further found that, notwithstanding the inapplicability of section 66.0313, county and tribal law enforcement agencies could contract to provide mutual assistance through an intergovernmental agreement under sections 66.0301 or 165.90 of the statutes. Any such agreement, however, may only apply to circumstances in which the assisting law enforcement officers would have legal authority to act deriving from some source other than the agreement itself. In other words, law enforcement powers may not be enlarged by contract alone.
The opinion was requested by Oneida County Assistant Corporation Counsel Thomas D. Wiensch. A copy of the original request and Attorney General Van Hollen's formal opinion can be accessed in the links below: