author: WILLIAM A. BABLITCH, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Kevin D. Jennings, Defendant-Appellant.
    Supreme Court

      No. 01-0507-CR.

      Oral argument October 15, 2002. —
    Decided March 5, 2003.

    2003 WI 10
    (Also reported in 657 N.W.2d 393.)

      For the plaintiff-respondent-petitioner the cause was argued by James M. Freimuth, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.
    For the defendant-appellant there was a brief by Stephen M. Compton, and Steven M. Compton, S.C., Delavan, and oral argument by Stephen M. Compton.

   WILLIAM A. BABLITCH, J.

¶ 1. The State of Wisconsin (State) petitions this court to review a decision of the court of appeals that reversed the conviction of Kevin D. Jennings (Jennings). At issue is whether a criminal complaint that is filed against a defendant, who is already incarcerated, is sufficient to commence a prosecution. Based on the legislative history of Wis. Stat. § 939.74(1) (1999-2000) and related criminal statutes that deal with the commencement of criminal prosecutions and warrantless arrests, we conclude that if an individual, like Jennings, is already in custody due to incarceration, a complaint is sufficient to commence a prosecution.

I. FACTS AND PROCEDURAL HISTORY

¶ 2. On December 4, 1998, Jennings was charged with one count of second-degree sexual assault in violation of Wis. Stat. § 940.225(2)(a) (1991-1992). According to the complaint, on December 5, 1992, Jennings allegedly accosted a Milwaukee woman, M.K., outside her home and forced her to engage in noncon-sensual intercourse. M.K. reported the incident and was taken to the Sexual Assault Treatment Center, where vaginal swabs were taken.

¶ 3. Jennings was identified as the suspected assailant on December 1,1998, when the State Crime Lab had a "cold hit" in its DNA database that matched Jennings' DNA to that of M.K.'s assailant. Jennings' DNA profile had been entered into the Crime Lab's databank on July 28, 1997, from Buccal swabs taken from Jennings in November 1994 when he was incarcerated at the Dodge Correctional Institution for conviction on another charge.

¶ 4. On December 3, 1998, two Milwaukee Police Detectives visited the Columbia Correctional Institution (Columbia), where Jennings was incarcerated for an unrelated crime, to inform Jennings of the DNA match and to question him about the sexual assault of M.K. Jennings was given a Miranda warning, which he waived, and he spoke with the detectives for approximately two hours regarding the sexual assault of M.K.

¶ 5. The next day, on December 4, 1998, the Milwaukee County District Attorney's office filed a criminal complaint alleging that Jennings had committed second-degree sexual assault on December 5, 1992, by forcing M.K. to engage in nonconsensual penis-to-vagina intercourse. The district attorney's office also obtained an order to produce that directed the superintendent of Columbia to make Jennings available to the sheriff of Milwaukee County at 8:30 a.m. on December 5, 1998, for an initial court appearance.

¶ 6. Apparently Jennings arrived too late to make the court appearance on December 5th, so his initial appearance before a court commissioner was on December 6, 1998. The court commissioner found probable cause based on the complaint and Jennings made a jurisdictional objection that the six-year statute of limitations had expired under Wis. Stat. § 939.74(1) (1997-1998). Jennings argued that a prosecution had not commenced within the six-year statute of limitations because no warrant or summons had been issued, no indictment found, or information filed, as of December 5,1998 — six years after the sexual assault of M.K. On December 14, 1998, the district attorney's office filed a criminal information alleging one count of second-degree sexual assault. Jennings waived his right to a preliminary hearing and entered a plea of not guilty.

¶ 7. On December 30, 1998, Jennings filed a motion to dismiss the sexual assault charge with prejudice, claiming that the six-year statute of limitations had expired. The circuit court denied Jennings' motion, concluding that in this case, the order to produce was the equivalent of a warrant or summons and that this was the best mechanism under the circumstances to bring Jennings before the court.

¶ 8. On June 21, 2000, the district attorney filed an amended information reducing the charge to third-degree sexual assault, to which Jennings pled no contest. In the circuit court for Milwaukee County, Judge Daniel L. Konkol sentenced Jennings to a five-year prison term to be served consecutively to the sentence Jennings was then serving. Despite entering a no-contest plea, Jennings reserved the right to challenge whether the circuit court had personal jurisdiction over him based on the alleged expiration of the six-year statute of limitations.

¶ 9. Jennings moved for post-conviction relief on January 29, 2001, challenging the judgment of conviction and the sentence on the grounds that the circuit court did not have personal jurisdiction over him because the statute of limitations had expired. Jennings' motion was denied, and he appealed the decision.

¶ 10. The court of appeals reversed the judgment of the circuit court, holding that the circuit court did not have personal jurisdiction over Jennings because the statute of limitations had expired on the sexual assault charge. The court of appeals determined that Wis. Stat. § 939.74(1) is ambiguous in light of other criminal statutes that discuss the commencement of a criminal prosecution, but concluded that neither a complaint nor an order to produce can substitute for the requirement of a warrant or summons under § 939.74(1). The State petitioned this court for review.

II. STANDARD OF REVIEW

¶ 11. Statutory interpretation presents a question of law that this court reviews de novo. State v. Busch, 217 Wis. 2d 429, 441, 576 N.W.2d 904 (1998). The primary goal of statutory interpretation is to discern the legislature's intent. Miller v. Wal-Mart Stores, 219 Wis. 2d 250, 271, 580 N.W.2d 233 (1998). A " 'literal reading of a statute may be rejected if it would lead to an absurd or unreasonable result that does not reflect the legislature's intent.'" State ex rel. Szymanski v. Gamble, 2001 WI App 118, ¶ 12, 244 Wis. 2d 272, 630 N.W.2d 570 (quoting Logterman v. Dawson, 190 Wis. 2d 90, 104, 526 N.W.2d 768 (Ct. App. 1994)). This court has determined that "[w]hen a literal interpretation produces absurd or unreasonable results, or results that are clearly at odds with the legislature's intent, '[o]ur task is to give some alternative meaning' to the words." Alberte v. Anew Health Care Serv., Inc., 2000 WI 7, ¶ 10, 232 Wis. 2d 587, 605 N.W.2d 515 (quoting Green v. Bock Laundry Machine Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring)).

III. ANALYSIS

¶ 12. The court of appeals agreed with the State that Wis. Stat. § 939.74(1) is rendered ambiguous in light of the language in Wis. Stat. §§ 967.05(1) and 968.02(2), which both provide that a criminal complaint may commence a prosecution. "Where statutes on the same subject conflict or are inconsistent, [the] court must make every effort to harmonize them in order to give effect to the purpose of each statute." City of Milwaukee v. Kilgore, 185 Wis. 2d 499, 513, 517 N.W.2d 689 (Ct. App. 1994), aff'd, 193 Wis. 2d 168, 532 N.W.2d 690 (1995).

¶ 13. In order to harmonize Wis. Stat. §§ 939.74(1), 967.05(1), and 968.02(2), the State essentially argues that the filing of a criminal complaint should satisfy the "warrant" requirement under § 939.74(1). Alternatively, the State claims that the issuance of an order to produce should be sufficient to satisfy the "summons" requirement under § 939.74(1). We first address whether the filing of a criminal complaint satisfies the "warrant" requirement under § 939.74(1) and is therefore sufficient to commence a prosecution for the six-year statute of limitations. Because we conclude it does, we do not address the State's alternative argument.

¶ 14. We agree with the State and the court of appeals that Wis. Stat. § 939.74(1) is ambiguous when read in conjunction with Wis. Stat. §§ 967.05(1) and 968.02(2); therefore, we look to extrinsic sources to determine the legislature's intent. In order to ascertain the legislature's intent regarding the tolling period for the criminal statute of limitations under § 939.74(1), we examine sources such as: (1) the legislative history of § 939.74(1); (2) related criminal statutes that deal with the commencement of criminal prosecutions and warrantless arrests; and (3) case law regarding the sufficiency of a complaint for obtaining personal jurisdiction over a defendant.

A. Legislative History of Wis. Stat. § 939.74(1)

¶ 15. The criminal statute of limitations is a well-recognized tenet of criminal procedure that serves important purposes. According to this court:

The criminal statutes of limitations serve a number of functions but the primary purpose is to protect the accused from having to defend himself against charges of remote misconduct. A corollary purpose is to ensure that criminal prosecutions will be based on evidence that is of recent origin. It also assures that law enforcement officials will act promptly to investigate and prosecute criminal activity. This helps to preserve the integrity of the decision-making process in the trial of criminal cases.

John v. State, 96 Wis. 2d 183, 194, 291 N.W.2d 502 (1980). This court has stated that compliance with the criminal statute of limitations is required for personal jurisdiction. State v. Pohlhammer, 78 Wis. 2d 516, 523, 254 N.W.2d 478 (1977). Nevertheless, this court has also recognized that the protection provided by the criminal statute of limitations, which "is subject to the control of the legislature, is not a fundamental right." State v. Sher, 149 Wis. 2d 1, 13, 437 N.W.2d 878 (1989) (emphasis added).

¶ 16. The criminal statute of limitations under Wis. Stat. § 939.74(1) was enacted in 1849 as part of Wisconsin's first criminal code. The statutory section was originally entitled "Limitation of criminal prosecutions" and stated that "An indictment for a capital crime may be found at any period; all other indictments, for other crimes, shall be found, and filed within six years after the commission of the offence ...." Wis. Stat. ch. 146, § 2 (1849). In reviewing the legislative history of § 939.74(1), it appears that the six-year statute of limitations begins to toll at the earliest point at which criminal proceedings may be commenced. For example, the legislature clarified in 1943 that:

(3) A prosecution shall be deemed to be commenced ... from and after the taking of the earliest action authorized by law to initiate criminal proceedings, including (a) the issuance of a warrant by a magistrate upon a complaint duly made... (b) the finding of an indictment by a grand jury or (c) the filing of an information against a corporation.

§ 3, ch. 51, Laws of 1943 (emphasis added).

¶ 17. In 1949, the legislature made changes to Wisconsin's criminal procedure, which included revising the language in Wis. Stat. § 353.23 (current Wis. Stat. § 939.74). See § 18, ch. 631, Laws of 1949. The revisions to § 353.23(3) essentially streamlined and simplified the language to state: "A prosecution shall be deemed to be commenced and pending within the meaning of sections 353.21 and 353.22 from and after (a) the issuance of a warrant or summons, (b) the finding of an indictment or (c) the filing of an information." § 18(3), ch. 631, Laws of 1949. According to the drafting record for ch. 631 of the Laws of 1949, the original measure was drafted by William Platz, who was an Assistant Attorney General at the time. Platz wrote a series of articles explaining the 1949 changes to the criminal code. Platz explained that the bill contained a large number of notes by the advisory committee, which were to serve as a guide in constructing the statutes. According to Platz, if "there [was] no such note to any particular section of the bill, any change in language [was] not intended to change the meaning of the statute revised." Significantly, there was no note for § 18 of ch. 631, which dealt with the criminal statute of limitations under § 353.23. Thus, § 353.23 appears to have been one of the "great many sections . . . [that was] rewritten .. . without [a] change in meaning."

¶ 18. While Wis. Stat. § 939.74(1) has been amended and revised several times from its inception, the legislative history of the statute does not indicate any intent to fundamentally change the point at which the statute of limitations for crimes begins to toll (i.e. the earliest action for initiating criminal proceedings). For example, when the legislature overhauled Wisconsin's criminal code in the mid-1950s, the criminal statute of limitations was essentially left unchanged. The comment to the statutory section regarding the criminal statute of limitations stated that "This section is a restatement of the old law in regard to time limitations on commencing criminal prosecutions." Legislative Council Note, 1953, § 339.74, Stats, (enacted as Wis. Stat. § 939.74 by § 1, ch. 696, Laws of 1955) (emphasis added). These comments were prepared as an aid for "arriving at a full understanding of the text of the law. They [were] somewhat lengthy revisor's notes . . . given official effect by sec. 370.001 [current Wis. Stat. § 990.001(7)]." Section 990.001(7) provides that "if the revision bill contains a note which says that the meaning of the statute to which the note relates is not changed by the revision, the note is indicative of the legislative intent." Wis. Stat. § 990.001(7); see also George Williams Coll. v. Vill. of Williams Bay, 242 Wis. 311, 315, 7 N.W.2d 891 (1943) (revisor's notes are important in construing legislative intent). Furthermore, a "revised statute is to be understood in the same sense as the original unless the change in language indicates a different meaning so clearly as to preclude judicial construction." Wis. Stat. § 990.001(7) (emphasis added).

¶ 19. Notably, the language in the 1955 statute regarding the commencement of a prosecution for statute of limitations purposes is identical to the language in the current Wis. Stat. § 939.74(1). Thus, if the legislature originally intended for the statute of limitations to begin tolling from the "earliest action" for initiating criminal proceedings, which has remained substantively unchanged, then the current § 939.74(1) should be interpreted consistent with this understanding.

¶ 20. In addition to the legislative history of Wis. Stat. § 939.74, this "earliest action" interpretation is supported by case law, which holds that it is not a defendant's notice of a warrant for his or her arrest that begins tolling the criminal statute of limitations, but the issuance of the warrant itself. See, e.g., State v. Mueller, 201 Wis. 2d 121, 129, 549 N.W.2d 455 (Ct. App. 1996). In Mueller, the court of appeals held that a criminal prosecution "commences" within the meaning of § 939.74(1) on the date a warrant is issued by a judge, not when a warrant is executed or served on a defendant by the police. Id. Mueller illustrated that it was the issuance of a warrant, as the earliest action to commence a prosecution, that began tolling the six-year period, not the defendant's notice that he was being charged with a crime.

B. Related Criminal Statutes: Wis. Stat. §§ 967.05(1), 968.02(2), 968.04(1)(a)

¶ 21. Consistent with the legislative history of Wis. Stat. § 939.74(1), criminal statutes that were enacted after § 939.74 specify that the filing of a complaint may commence a prosecution. For example, under Wis. Stat. § 967.05(1), a "prosecution may be commenced by the filing of: (a) A complaint.. .." Similarly, under Wis. Stat. § 968.02(2), "[a]fter a complaint has been issued, it shall be filed with a judge .... Such filing commences the action." In attempting to harmonize § 939.74(1) with these statutes, the court of appeals reasoned that § 939.74 is more specific than §§ 967.05 and 968.02; therefore, § 939.74 prevails, even though it was enacted well before either § 967.05 or § 968.02. While a specific statute usually applies if it conflicts with a more general statute, we cannot accept this proposition when it renders an absurd result, as in this case.

¶ 22. As illustrated by the legislative history of Wis. Stat. § 939.74(1), the statute of limitations begins to toll with the earliest action to commence criminal proceedings. In many cases, the earliest action is the issuance of a warrant, as identified in § 939.74(1). However, in a situation where the suspect is already in custody, the issuance of a warrant seems, at best, superfluous since the purpose of obtaining an arrest warrant is to take an individual into custody. This court explicitly recognized this common sense proposition in Pillsbury v. State, 31 Wis. 2d 87, 92, 142 N.W.2d 187 (1966):

If an accused is not in the custody of the police upon an arrest, a warrant may be necessary to assure his detention and appearance before the magistrate upon the complaint; but we think here there was no necessity for issuing a warrant for the defendant's arrest and rearresting him upon the complaint when he was [already] in custody....

Pillsbury, 31 Wis. 2d at 92 (emphasis added).

¶ 23. Simply stated,"Pillsbury . . . goes no further than the commonsense holding that there need not be the issuance of another arrest warrant when a person is already being held in custody under another charge." State ex rel. Cullen v. Ceci, 45 Wis. 2d 432, 443, 173 N.W.2d 175 (1970). This court has also concluded that "we can think of no situation in which a defendant is more clearly in custody, as envisioned by the Miranda Court, than when the defendant is confined in a prison or jail." State v. Armstrong, 223 Wis. 2d 331, 356, 588 N.W.2d 606, 616-17 (1999). The legislature could not have intended the absurd result of requiring the issuance of a warrant for statute of limitations purposes under Wis. Stat. § 939.74(1) for an individual who is already in custody. Consequently, we reverse the court of appeals and hold that § 939.74(1) does not trump Wis. Stat. §§ 967.05(1) and 968.02(2), which both provide that a prosecution may be commenced upon the filing of a complaint.

¶ 24. The State also points to Wis. Stat. § 968.04(l)(a), which states that "[w]hen an accused has been arrested without a warrant and is in custody,... no warrant shall be issued and the complaint shall be filed forthwith with a judge." The State claims that § 968.04(l)(a) accurately describes Jennings' situation as a "warrantless arrestee in custody." Jennings disputes the State's assertion, arguing that he was never arrested or in custody for the sexual assault of M.K. because his incarceration was due to an unrelated crime. We cannot accept Jennings' proposition.

¶ 25. We agree with the State that based on the totality of the circumstances in this case, it is clear that Jennings was in custody and in essence, under arrest, for the sexual assault charge when the police detectives questioned him while he was incarcerated at Columbia for an unrelated crime. It is undisputed that the officers told Jennings that the purpose of their visit was to inform Jennings that his DNA matched that of M.K's assailant and to question him about the sexual assault of M.K. In addition, the officers gave Jennings a Miranda warning, which he waived. A reasonable person in Jennings' position should have known that he or she would be charged, and was essentially arrested for, the sexual assault of M.K. based on the conclusive DNA evidence and the officers' interrogation. Since Jennings was already physically in custody due to his incarceration, a warrant to bring him into custody was not necessary. Rather, the next logical procedural step would be to file a criminal complaint, which is what the State did in this case.

C. Sufficiency of Criminal Complaint for Personal Jurisdiction

¶ 26. Furthermore, there is Wisconsin case law which holds that a criminal complaint is sufficient to obtain personal jurisdiction over a defendant. This court has clearly stated that a "complaint is the statutory procedure for acquiring personal jurisdiction over the defendant." State v. Smith, 131 Wis. 2d 220, 238, 388 N.W.2d 601 (1986). Consequently, "the essential element of personal jurisdiction in a criminal action is the sufficiency of the complaint, rather than the process by which the defendant's presence in court is secured." Id. at 239. This court has recognized that while a complaint's "purpose is no longer to authorize the seizure of the person of the defendant, it is the jurisdictional requirement for holding a defendant for a preliminary examination or other proceedings." Cullen, 45 Wis. 2d at 442-43. Referencing earlier case law, this court stated that "Pillsbury makes it quite clear that the jurisdictional requisite for a preliminary hearing is the complaint not the warrant." Id. at 443.

¶ 27. Based on all the above, we hold that when a defendant is already in custody due to his dr her incarceration, the filing of a criminal complaint is sufficient to commence a prosecution. Because we hold that the filing of a criminal complaint, without the issuance of a warrant, is sufficient to commence prosecution of a defendant who is already in custody, we do not address whether an order to produce satisfies the "summons" requirement under Wis. Stat. § 939.74(1).

By the Court. — The decision of the court of appeals is reversed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 28. (dissenting). I agree with the court of appeals that the action in the present case was not timely commenced.

¶ 29. Wisconsin Stat. § 939.74(1), a statute of limitations, is clear. It establishes that the prosecution for a felony must commence within six years of the commission of the felony and that the prosecution for a misdemeanor or adultery must commence within three years of the commission of the misdemeanor or adultery. The statute further defines precisely when a prosecution is deemed to have commenced for purposes of this particular section of the Wisconsin Statutes: (1) when a warrant or summons is issued, (2) when an indictment is found, or (3) when an information is filed. No mention is made of a complaint or an order to produce. Section 939.74(1) reads as follows:

[P]rosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed.

¶ 30. The majority opinion, however, concludes that the statute does not clearly define when a prosecution is deemed to have commenced for purposes of satisfying the statute of limitations because two other statutes, Wis. Stat. §§ 967.05(1) and 968.02(2), explain situations in which a prosecution may be commenced by a different means — with the filing of a criminal complaint. In addition, the majority opinion concludes that a literal reading of the statute leads to the absurd requirement that a prosecutor issue a warrant for a person already in custody (that is, imprisoned after conviction on another offense) in order to satisfy the statute of limitations.

¶ 31. I dissent because neither conclusion is supported by law or logic and both conclusions require this court to rewrite the statute.

¶ 32. The only way the majority is able to conclude that Wis. Stat. § 939.74(1) is "ambiguous when read in conjunction with Wis. Stat. §§ 967.05(1) and 968.02(2)" is to erase the phrase "within the meaning of this section" that precedes the explanation of when a prosecution commences for purposes of satisfying the statute of limitations. It is true that one method of commencing a prosecution under § 967.05(1) is by filing a complaint. It is also true that under § 968.02(2) a criminal proceeding may be commenced when a district attorney files a complaint.

¶ 33. It does not follow, however, that either of these statutes renders ambiguous the language delineating the methods available for commencing a prosecution under § 939.74(1). A statute is not ambiguous simply because it provides a more limited definition of a term than other statutes. Section 939.74(1) expressly states that "within the meaning of this section," a prosecution is commenced when a warrant or summons is issued, an indictment is found, or an information is filed. Nowhere does the statute state that, for purposes of the statute of limitations, a prosecution commences with the filing of a criminal complaint. Thus it is plain that a prosecution may commence with the filing of a criminal complaint for certain purposes, but not for purposes of satisfying the statute of limitations under § 939.74(1).

¶ 34. The majority's conclusion that a literal reading of Wis. Stat. § 939.74(1) leads to an absurd result is similarly flawed. The majority argues that reading § 939.74(1) to require a warrant to be issued in order to toll the statute of limitations where, as in this case, the defendant was serving a sentence in prison convicted of a different crime, would be absurd. The majority concludes, "[T]he legislature could not have intended the absurd result of requiring the issuance of a warrant for statute of limitations purposes under Wis. Stat. § 939.74(1) for an individual who is already in custody."

¶ 35: The first problem with the majority's "absurd result" conclusion is that it assumes a prosecution can be commenced under Wis. Stat. § 939.74(1) only with the issuance of a warrant. In fact, the statute considers a prosecution commenced with the issuance of a warrant or summons, the finding of an indictment, or the filing of an information. Thus, nothing about § 939.74(1) requires the issuance of a warrant for statute of limitations purposes where an individual is in prison. The statute allows other methods of commencing an action for purposes of § 939.74(1); the prosecutor may, for example, issue a summons or file an information instead.

¶ 36. The second problem with the majority's conclusion is that it assumes the sole purpose of issuing a warrant is to bring a person into custody. The majority states, "[I]n a situation where the suspect is already in custody, the issuance of a warrant seems, at best, superfluous since the purpose of . obtaining an arrest warrant is to take an individual into custody." As § 939.74(1) makes clear, however, there can be additional reasons for obtaining an arrest warrant, such as tolling a statute of limitations on a different crime. Indeed, as the majority opinion points out, the issuance of the warrant, not the execution or service of the warrant, is the key for commencing a criminal prosecution.

¶ 37. The criminal statute of limitations is a well-recognized tenet of criminal procedure that serves important purposes, including assuring that law enforcement officials act promptly to investigate and prosecute criminal activity. The majority's interpretation of § 939.74(1) rewrites the statute to grant the state flexibility in commencing its prosecution, flexibility that the legislature did not intend for it to have and flexibility that undermines the important purposes behind the criminal statutes of limitations.

¶ 38. This court has frequently dismissed civil lawsuits where a party has failed to follow the precise letter of the law when initiating litigation. In the criminal context, however, the court apparently feels no compulsion to hold the state to the same high standards to which it holds civil litigants. This cannot be what the legislature intended.

¶ 39. For the foregoing reasons, I dissent.

¶ 40. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.

        State v. Jennings, 2002 WI App 16, 250 Wis. 2d 138, 640 N.W.2d 165.

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       Wisconsin Stat. § 939.74 is entitled "Time limitations on prosecutions" and states:
      (1) Except as provided in sub. (2), and s. 946.88(1), prosecution for a felony must be commenced within 6 years and prosecution for a misdemeanor or for adultery within 3 years after the commission thereof. Within the meaning of this section, a prosecution has commenced when a warrant or summons is issued, an indictment is found, or an information is filed. (Emphasis added.)

       Wis. Stat. § 967.05 Methods of prosecution. (1) A prosecution may be commenced by the filing of:
      (a) A complaint;
      (b) In the case of a corporation or limited liability company, an information;
      (c) An indictment.
      Wis. Stat. § 968.02 Issuance and filing of complaints.
      (2) After a complaint has been issued, it shall be filed with a judge and either a warrant or summons shall be issued or the complaint shall be dismissed, pursuant to s. 968.03. Such filing commences the action.

       William A. Platz, The 1949 Revision of the Wisconsin Code of Criminal Procedure, 1950 Wis. L. Rev. 28, 29.

        Id. (emphasis added).

         Id.

       William A. Platz, "The Wisconsin Bar and the Proposed Criminal Code," Legislative History of 1955 Criminal Code, at 16-17 (1953) (referring to comments in Bill No. 100, A. from the 1953 legislature).

       With all due respect, the dissent is incorrect in claiming that the majority opinion assumes that' a prosecution can only be commenced under Wis. Stat. § 939.74(1) with the issuance of a warrant. See Dissent, ¶ 35. The majority opinion makes no such assumption. It is undisputed that a prosecution may be commenced numerous ways under § 939.74(1). Rather, the majority opinion focuses on one particular method for commencing a prosecution: the issuance of a warrant, and holds that issuing a warrant in order to commence a prosecution under § 939.74(1) is effectively satisfied hy the filing of a criminal complaint when the defendant is already in custody. Thus, the majority opinion simply addresses one of the methods for commencing a prosecution — it does not conclude that is the only way to commence a prosecution under § 939.74(1).

       Wis. Stat. § 939.74 (1999-2000) (emphasis added).

       Majority op., ¶ 23.

        See id.

       Majority op., ¶ 22.

        See majority op., ¶ 20 (citing State v. Mueller, 201 Wis. 2d 121, 129, 549 N.W.2d 455 (Ct. App. 1996)).
      The majority opinion ignores an important difference between a filed criminal complaint and an issued warrant. A prosecutor alone can file a criminal complaint. Wis. Stat. § 968.02(1). By contrast, the issuance of a warrant requires a finding of probable cause by a neutral and detached magistrate. Wis. Stat. § 968.04(1).

        See, e.g., Schaefer v. Riegelman, 2002 WI 18, ¶ 46, 250 Wis. 2d 494, 639 N.W.2d 715 (dismissing civil complaint because of "nonprejudicial technicality") (Abrahamson, C.J., dissenting).


source: Caselaw Access Project

author: ANN WALSH BRADLEY, J.

license: Public Domain

text:
    Randy O'Neill and Rita O'Neill, Plaintiffs-Appellants-Petitioners, v. James Reemer and Weyerhaeuser Company d/b/a Northwest Hardwoods, Defendants-Respondents.
    Supreme Court

      No. 01-2402.

      Oral argument November 14, 2002. —
    Decided March 5, 2003.

    2003 WI 13
    (Also reported in 657 N.W.2d 403.)

      For the plaintiffs-appellants-petitioners there were briefs by Daniel C. Arndt and Arndt, Buswell & Thorn, S.C., Sparta, and oral argument by Daniel C. Arndt.

    For the defendant-respondent, James Reemer, there was a brief by Ralph E. Johnson and UAW-GM Legal Services Plan, Janesville, and oral argument by Ralph E. Johnson.

      For the defendants-respondents, James Reemer and Weyerhaeuser Company d/b/a Northwest Hardwoods, there was a brief by Gerald W. Laabs and Looks, Skolos & Mills, LLP, Black River Falls, and James M. Isaacson and Falkenberg & Isaacson, LLC, Cadott.
   ANN WALSH BRADLEY, J.

¶ 1. The petitioners, Randy and Rita O'Neill, seek review of an unpublished decision of the court of appeals that affirmed the circuit court's grant of summary judgment dismissing the O'Neills' trespass claim against James Reemer, their neighbor, and Weyerhaeuser Company, which logged the strip of property in dispute. The petitioners assert that the court of appeals erred in concluding that when a right of ownership is acquired by adverse possession over a 20-year period, the right may nevertheless be lost if within the subsequent 30 years title is not recorded as required by Wis. Stat. § 893.33(2) (1999-2000). Because we conclude that the owner-in-possession exception to the 30-year recording requirement applies to adverse possession claims, we reverse the court of appeals decision and remand the action to the circuit court for further proceedings.

HH

¶ 2. The O'Neills and James Reemer own adjoining real property in the Township of Little Falls, Monroe County, Wisconsin. The dispute in this case involves a strip of land that runs along the boundary between the two properties. Reemer has record title to the disputed strip. The O'Neills claim ownership of the disputed strip based on adverse possession. They filed this trespass action after Weyerhaeuser, hired by Re-emer, logged the strip.

¶ 3. According to affidavits submitted by the O'Neills in support of their motion for partial summary judgment, a barbed wire fence was erected in 1944 by the O'Neills' predecessor in title to keep in livestock. The disputed strip is the land between the fence and the record boundary. Randy O'Neill's father purchased the land in 1958 and conveyed it to the petitioners in approximately 1999. The O'Neills and their predecessors in title claim to have used the land up to the fence for pasturing or hunting from 1944 through to the day logging began.

¶ 4. Reemer submitted affidavits in support of his cross motion for summary judgment averring that the fence consisted of only a few strands of barbed wire and that the disputed strip of property was a wild and overgrown natural area. He argued that the 30-year recording requirement precluded the O'Neills from asserting ownership by adverse possession.

¶ 5. For purposes of ruling on the summary judgment motions, the circuit court assumed that the adverse possession claim had ripened in 1964. Using the reasoning of Shelton v. Dolan, 224 Wis. 2d 334, 591 N.W.2d 894 (Ct. App. 1998), the circuit court determined that as of 1964 the 30-year period set forth in Wis. Stat. § 893.33(2) began to run against the adverse possession claim. Because neither the O'Neills nor their predecessors in title recorded any instrument or notice of claim to the disputed strip between 1964 and 1994, the circuit court concluded that any claim that the O'Neills may have had to ownership of the disputed strip based on adverse possession was barred as of 1994. Thus, the circuit court granted summary judgment dismissing the O'Neills' adverse possession claim.

¶ 6. In the alternative, the circuit court concluded that if the O'Neills' adverse possession claim was not barred by Wis. Stat. § 893.33(2), there were disputed issues of fact regarding whether the fence erected in 1944 was a substantial enclosure, which would preclude summary judgment for either party.

¶ 7. The court of appeals affirmed the circuit court's decision. Applying Wis. Stat. § 893.33 as it was interpreted in Shelton, the court of appeals concluded that since neither the O'Neills nor their predecessor in title had recorded an instrument or a notice of claim to the disputed property within 30 years of the date on which they assert they obtained title by adverse possession, the circuit court correctly dismissed the O'Neills' claim. However, in its decision the court of appeals raised questions regarding the validity of Shelton's construction and application of the 30-year recording requirement to adverse possession claims. The court of appeals acknowledged the reasonableness of the petitioners' arguments, but observed that it was only the supreme court, not the court of appeals, which has the authority to overrule or modify Shelton. O'Neill v. Reemer, No. 01-2402, unpublished slip op. at ¶ 10 (Wis. Ct. App. April 25, 2002). The O'Neills now seek review of the decision of the court of appeals.

I — I HH

¶ 8. This case provides us with an opportunity to review the issue of whether the owner-in-possession exception to the 30-year recording requirement set forth in Wis. Stat. § 893.33 applies to adverse possession claims. This issue is raised in the context of a grant of summary judgment. We review a circuit court's grant or denial of summary judgment independently of the circuit court or court of appeals, applying the same methodology as the circuit court. Torgerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 536, 563 N.W.2d 472 (1997). Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Here, there is no dispute of material facts relevant to the issue before this court. Instead, we are presented with a question of law which is subject to independent appellate review. Lewis v. Physicians Ins. Co. of Wisconsin, 2001 WI 60, 243 Wis. 2d 648, 654, 627 N.W.2d 484.

i — i h-H I — I

¶ 9. Our discussion in this case centers on statutes relating to adverse possession and decisions from this court and the court of appeals interpreting those statutes. The relevant statutes create the 30-year recording requirement and the owner-in-possession exception to that requirement. The 30-year recording requirement is set forth in Wis. Stat. § 893.33(2) which provides in part:

[N]o action affecting the possession or title of any real estate may be commenced ... which is founded upon any ... event occurring more than 30 years prior to the date of commencement of the action, unless . . . within 30 years after the date of the ... event there is [an instrument or notice of claim recorded with the register of deeds].

¶ 10. The purpose of the 30-year recording re- . quirement is to enhance the marketability of title to real estate and protect purchasers of real estate from stale claims challenging their title or possession. Herzog v. Bujniewicz, 32 Wis. 2d 26, 32, 145 N.W.2d 124 (1966). Under the 30-year recording requirement, a person who claims ownership rights as the result of an event loses the right to bring a claim based on that event if an instrument or notice of claim is not recorded within 30 years of the event. Adverse possession for the period of time necessary under the circumstances to obtain title is considered to be an "event" covered by the 30-year recording requirement and the 30-year period commences to run upon the expiration of that period. Id. at 31.

¶ 11. The owner-in-possession exception to the 30-year recording requirement is created by Wis. Stat. § 893.33(5) which provides in part:

[The 30-year recording requirement] does not apply to any action commenced... by any person who is in possession of the real estate involved as owner at the time the action is commenced.

The owner-in-possession exception ensures that the rights of owners who are in possession of their property are not affected if they have not made the filings of record that would otherwise be necessary under the 30-year recording requirement. The exception does not impair the purpose of the 30-year recording requirement because the expectations of purchasers of property, whose interests are protected by the 30-year recording requirement, are different if the property that they are purchasing is clearly possessed by a party outside the chain of record title. This notice by possession and resulting difference in expectations provides the foundation of the owner-in-possession exception to the 30-year recording requirement.

¶ 12. As noted, the court of appeals here applied the Shelton court's construction of the 30-year recording requirement and the owner-in-possession exception in reaching its conclusion that the circuit court properly granted summary judgment dismissing the O'Neills' adverse possession claim. The plaintiff in Shelton argued that the 30-year recording requirement did not apply to claims of adverse possession because of the owner-in-possession exception. The court of appeals rejected that argument and concluded that the plaintiffs adverse possession claim was properly dismissed because of a failure to satisfy the 30-year recording requirement.

¶ 13. In arriving at its ruling in Shelton, the court of appeals looked to two previous decisions of the supreme court, Herzog and Leimert v. McCann, 79 Wis. 2d 289, 255 N.W.2d 526 (1977), to see how to apply Wis. Stat. § 893.33 to ownership by adverse possession. To provide adequate background from which to evaluate Shelton, we first address this court's analysis of the two cases that serve as the underpinning of the Shelton decision.

¶ 14. In Herzog, we reviewed whether an adverse possessor can qualify for the owner-in-possession exception. Herzog involved a dispute between neighbors regarding the ownership of a 1.5-foot strip of property running along the boundary between two residential properties. Similar to the O'Neills, the plaintiff, Herzog, sought to introduce evidence of adverse possession establishing ownership as of a date that was prior to 30 years before she brought her action to quiet title in 1964.

¶ 15. The evidence indicated that the disputed strip was created by a fence that existed in 1912 and continued to exist until 1942. Part of the fence possibly continued to exist as late as 1948. At the time Herzog brought her claim, the fence no longer existed but a portion of the disputed strip was covered by a concrete driveway used by her.

¶ 16. The trial court held that the 30-year recording requirement made inadmissible any evidence of acts of adverse possession occurring prior to 30 years before the commencement of the action, and that the evidence related to acts within the 30 years was not sufficient to establish title in Herzog by adverse possession. Herzog, 32 Wis. 2d at 29. In analyzing the trial court's reasoning, we agreed that the 30-year recording requirement's reference to "action affecting possession or title" includes adverse possession claims. Id. at 30-31.

¶ 17. We concluded, however, that the trial court's interpretation of the 30-year recording requirement as limiting Herzog's claim was error because Herzog qualified for the owner-in-possession exception to the 30-year recording requirement:

We think the trial court should have held [that the 30-year recording requirement] did not apply to the plaintiff in this action because of the owner-in-possession exception. For the purpose of asserting a claim to the disputed property based upon adverse possession, the plaintiff should be considered as one "in possession of real estate involved as owner."

Id. at 32. In reaching this conclusion, we stated that a party that has been in possession of land for fifty years should not be foreclosed from establishing title to the land. Herzog, 32 Wis. 2d at 32.

¶ 18. In Leimert, the second case relied on by the Shelton court, we addressed whether the 30-year recording requirement barred a prescriptive easement claim brought to establish rights to use a roadway. Neighbors Leimert and McCann each owned property on an island. The only point of mainland access was a causeway that connected the island to the mainland. Leimert had to use a roadway on McCann's property to access the causeway from her property. The trial court found that Leimert and her predecessors in title had continuously used the roadway from 1941 to 1961, which was sufficient to satisfy a finding of prescriptive easement.

¶ 19. McCann contended that Leimert's claim was barred by the 30-year recording requirement. In analyzing the issue, we cited Herzog for the proposition that the 30-year period does not commence until after the applicable adverse possession period has run. We therefore concluded that the 30-year period began to run in 1961, after the 20-year period necessary to obtain a prescriptive easement had ended. Leimert, 79 Wis. 2d at 298. Since Leimert brought her claim before 1991, she was still within the 30-year period so the 30-year recording requirement did not bar her claim. Id.

¶ 20. Shelton extended the Herzog and Leimert analysis to conclude that a plaintiff cannot bring an adverse possession claim if the plaintiff has failed to satisfy the 30-year recording requirement, regardless of whether the plaintiff qualifies for the owner-in-possession exception. In Shelton, the plaintiff claimed that since the 1930s an access road connecting his property to Burris Road had been used by him and his predecessors in title. The access road crossed over property owned by the Dolans. For purposes of its decision, the court of appeals assumed without deciding that Shelton or his predecessor had obtained title by adverse possession and that the requisite 20 years of adverse use had ended sometime in the 1950s. The court of appeals concluded that because Shelton did not perform the acts required by the 30-year recording requirement within 30 years of obtaining title by adverse possession, the trial court properly dismissed his adverse possession claim. Shelton, 224 Wis. 2d at 344.

¶ 21. The analysis of the court of appeals in reaching this conclusion was based primarily on Herzog as interpreted by Leimert. Shelton quotes the following statement from Herzog: " 'Upon the expiration of such period of time [necessary to establish adverse possession] the thirty-year period commences to run.1" Id. at 341 (quoting Herzog, 32 Wis. 2d at 31). Not taking into account Herzog's later discussion of the owner-in-possession exception, Shelton misinterprets this statement to mean that "the owner-in-possession exception permits proof of a claim of adverse possession but, once title by adverse possession is established, the [30-year recording requirement] applies." Id.

¶ 22. The Shelton court expressed the difficulty it had in interpreting Herzog. It acknowledged that another reading oí Herzog is that "the owner-in-possession exception permits proof of a claim of adverse possession, and, if the claimant succeeds in establishing title, then, by virtue of that same exception, the thirty-year rule does not apply." Shelton, 224 Wis. 2d at 341. Nevertheless, the Shelton court interpreted Herzog to require application of the 30-year recording requirement even if the adverse possessor qualifies for the owner-in-possession exception. It did so because it relied upon language in our Leimert decision. Yet that reliance was misplaced.

¶ 23. Leimert does not discuss the owner-in-possession exception. Discussion of the owner-in-possession exception was not necessary because the court had already determined that the 30-year recording requirement did not bar Leimert from proceeding with her prescriptive easement action, so there was no need to discuss whether she qualified for an exception to the rule. Further, Leimert is a prescriptive easement case, and Shelton acknowledged that one could argue that a person who has a prescriptive easement does have sufficient ownership rights to qualify as an owner-in-possession.

¶ 24. Thus the Leimert analysis does not address the owner-in-possession exception. Shelton misapplies Leimert in concluding that an adverse possessor qualifying for the owner-in-possession exception nevertheless remains subject to the 30-year recording requirement.

¶ 25. In the concurrence to the court of appeals decision in this case, Judge Lundsten writes separately to "emphasize the odd result dictated by Shelton's interpretation of prior supreme court decisions." O'Neill v. Reemer, unpublished slip op. at ¶ 12 (Lund-sten, J., concurring). He questions Shelton's interpretation which permits claims that are based on 49 years of adverse possession but bars claims that are based on 51 years of adverse possession:

Under Shelton, if a person continuously, openly and notoriously possesses property, sufficient to satisfy "uninterrupted adverse possession" under Wis. Stat. § 893.25(1) (1999-2000), for forty-nine years prior to a legal action, the person may obtain legal title to the property. However, if the legal action arises in the fifty-first year of such possession, the person has no claim because of Wis. Stat. § 893.33(5) and its thirty-year time limitation. Shelton, 224 Wis. 2d at 341-344.

Id. at ¶ 13. Judge Lundsten notes that there does not appear to be any greater need to discourage claims after fifty years of adverse possession compared with claims prior to fifty years of adverse possession. He concludes by stating that "Shelton draws a line that is neither required by the language of Wis. Stat. § 893.33(5) nor supported by sound policy." Id. at ¶ 14. We agree.

¶ 26. The line drawn by Shelton is contrary to the language of Wis. Stat. § 893.33(5) because Shelton applies the 30-year recording requirement to an owner-in-possession when the language of Wis. Stat. § 893.33(5) states that the 30-year recording requirement "does not apply to any action brought by any person who is in possession of the real estate involved as owner at the time the action is commenced."

¶ 27. Additional text within Wis. Stat. § 893.33(5) makes it clear that the legislature was differentiating between record title and legal ownership. The owner-in-possession exception in Wis. Stat. § 893.33(5) refers to "owner." The very next sentence, which sets out a different exception, refers to "record title." Indeed, the sentence after that, which creates another exception, also refers to "record title." This distinction has significance. It is a clear indication of the legislature's intent to tie the owner-in-possession exception to the legal owner rather than the holder of record title.

¶ 28. Herzog confirms that this was the legislature's intent and cites a law review article written by Roy Tulane, an attorney primarily responsible for drafting the statutes that create the 30-year recording requirement and the owner-in-possession exception. Herzog, 32 Wis. 2d at 32. In the article, Tulane writes:

[The owner-in-possession exception] exempts from the operation of the act owners in possession. The term "owner" as therein used means simply the person who, either himself or in privity with others, has had possession or dominion over the property during the last ten or twenty years. [Footnote references "Wis. Stat. (1941) §330.05-.10."]

Roy Tulane and Ralph Axley, Title to Real Property - Thirty Year Limitation Statute, 1942 Wis. L. Rev. 258, 264. The use of the words "ten or twenty years" is a reference to the statutory periods for adverse possession — ten years if under color of title and twenty years if not under color of title. The statutes cited are the adverse possession statutes. Therefore, this quote indicates that use of the term "owner" in the owner-in-possession exception was intended to include those who own by adverse possession.

¶ 29. This interpretation of the legislature's intent is consistent with the purpose of the 30-year recording requirement to make record title more marketable, that is, to shorten the period of time within which the record title must be reviewed, as compared to before the 30-year recording requirement existed. The 30-year recording requirement was not intended to make record title more marketable as compared to title by adverse possession.

¶ 30. The line drawn by Shelton is also contrary to sound policy. It is illogical to construe a statute with a purpose of eliminating stale claims in such a way that after 50 years of staleness a right of ownership in record title is resurrected. In adverse possession cases, it is the record title to the property that has lain dormant and stale. At the end of the applicable adverse possession period, title vests in the adverse possessor and the record owner's title is extinguished. Harwick v. Black, 217 Wis. 2d 691, 701, 580 N.W.2d 354 (Ct. App. 1998). Even though title has been extinguished, Shelton would reignite the record owner's title and extinguish the title of the adverse possessor, even if the adverse possessor has been in continuous adverse possession for over 50 years.

¶ 31. The more sound result is achieved by permitting the adverse possessor to qualify for the owner-in-possession exception to the 30-year recording requirement. Otherwise, one who has adversely possessed property for over 50 years would not be able to claim title while one who has adversely possessed property between 20 and 50 years would be able to do so. In addition, adverse possession claims sometimes involve situations in which the parties are operating under the belief that the adverse possessor has record title to the property that is being adversely possessed. It is therefore illogical to create an expectation that the adverse possessor make a filing of record before the incident prompting the lawsuit arises.

¶ 32. Based on the foregoing analysis, we conclude that Shelton misinterprets Herzog, misapplies Leimert, and draws a line that is neither required by the language of Wis. Stat. § 893.33(5) nor supported by sound policy. Accordingly, we overrule Shelton.

IV

¶ 33. The circuit court noted that if it was error to grant summary judgment based on the application of the 30-year recording requirement as interpreted by Shelton, there was a genuine issue of material fact as to whether the fence constructed in 1944 constitutes a "substantial enclosure" under Wis. Stat. § 893.25. The resolution of this issue affects whether the O'Neills can establish ownership of the disputed strip by adverse possession.

¶ 34. Through affidavits, the O'Neills claim that the fence "was maintained as a boundary for the property and as a pasture enclosure for the cattle." Reemer, on the other hand, describes the "fence" as barbed wire strung from tree to tree and characterizes it as a makeshift method to enclose cattle. According to Re-emer, it was insufficient to constitute a substantial enclosure.

¶ 35. Reemer also asserts that the fence is in a wild, wooded area and that he and his immediate predecessor in title did not even know the fence existed. There is some indication that the logging damaged the fence. However, even prior to the logging, the fence appears to have been in a state of disrepair, possibly half up and half down.

¶ 36. Accordingly, although we have concluded that an owner by adverse possession can qualify for the owner-in-possession exception, it is not clear whether the O'Neills will be successful in their adverse possession claim. As the circuit court noted, there remains a genuine issue of material fact.

¶ 37. In sum, we agree with the premise of Herzog that "a person who with his predecessors in title has been in possession of land for over fifty years ought not to be foreclosed from establishing title to the land." Herzog, 32 Wis. 2d at 32. Because Shelton concludes to the contrary based on a misinterpretation of Herzog and misapplication of Leimert, we overrule Shelton. Instead, we reaffirm the conclusion of Herzog that the owner-in-possession exception to the 30-year recording requirement applies to adverse possession claims. Accordingly, we reverse the court of appeals and remand the action to the circuit court for further proceedings.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded.

¶ 38. JON E WILCOX, J., did not participate.

        O'Neill v. Reemer, No. 01-2402, unpublished slip op. (Wis. Ct. App. April 25, 2002) (affirming a judgment of the circuit court of Monroe County, Michael J. McAlpine, Judge).

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       The circuit court also concluded that if Wis. Stat. § 893.33(2) were not a bar and the O'Neills succeeded in establishing ownership by adverse possession, they would be entitled to damages for any loss under Wis. Stat. §§ 26.05 and 26.09.

       We note that Wis. Stat. § 706.09 protects purchasers for value from certain adverse claims of which they have no notice. Although Reemer cites Wis. Stat. § 706.09 as support for his argument regarding the interpretation of the owner-in-possession exception in Wis. Stat. § 893.33, the issue of whether the provisions of Wis. Stat. § 706.09 would directly bar the .O'Neills' claim does not appear to have been argued before the circuit court or the court of appeals. Additionally, it was not fully briefed or argued in this court. Accordingly, we make no conclusions regarding the direct applicability of Wis. Stat. § 706.09 to this case.

       The plaintiff in Shelton did not petition this court to review the court of appeals decision. At oral argument, Reemer conceded that Shelton employed a faulty analysis.


author:
ANN WALSH BRADLEY, J.
      SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

text:
    In re the Termination of Parental Rights to Arianna R.G., a Person Under the Age of 18: Sheboygan County Department of Human Services, Petitioner-Respondent, v. Neal J.G., Respondent-Appellant. In re the Termination of Parental Rights to Hunter D.G., a Person Under the Age of 18: Sheboygan County Department of Human Services, Petitioner-Respondent, v. Neal J.G., Respondent-Appellant.
    Supreme Court

      Nos. 02-0574, 02-0575.

      Oral argument November 7, 2002.—

      Decided March 5, 2003.

    2003 WI 11
    (Also reported in 657 N.W.2d 363.)

      For the respondent-appellant there were briefs (in the court of appeals) by Timothy A. Provis, Madison, and oral argument by Timothy A. Provis.

    For the petitioner-respondent there was a brief (in the court of appeals) by Mary T. Wagner, assistant district attorney, and Robert J. Wells, Jr., district attorney, and oral argument by Mary T. Wagner.

   ANN WALSH BRADLEY, J.

¶ 1. This case comes before us on a petition to bypass the court of appeals pursuant to Wis. Stat. (Rule) § 809.60 (1999-2000). Neal J.G. (Neal) appeals an order of the Sheboygan County circuit court terminating his parental rights to his two children. He claims that the circuit court erred in failing to comply with the notice requirement of the Indian Child Welfare Act (ICWA).

¶ 2. We conclude that the information before the circuit court was too vague for the court to have reason to know that each of Neal's children met the definition of "Indian child" under the ICWA. Because the information was insufficient to show that the ICWA applied in this case, no notice was required. Accordingly, albeit with different rationale, we affirm the order of the circuit court terminating Neal's parental rights to his children.

HH

¶ 3. The Sheboygan County Department. of Health and Human Services (the department) filed petitions with the Sheboygan County circuit court to terminate involuntarily Neal's parental rights to his two children. On July 23, 2001, Neal filed a motion with the circuit court requesting that either (a) the proceedings be dismissed because of the department's failure to comply with the ICWA or (b) the proceedings be suspended in order to comply with the ICWA by "providing notice of the proceedings to the Ojibwa Tribe in Mari-nette, Wisconsin." The motion stated that the children had an Indian ancestry:

[Neal] asserts that he has Indian heritage, both on.his mother's side of the family and his father's side of the family. Specifically, [Neal's mother] is aware that her Indian ancestry stems from the Ojibwa Tribe in Mari-nette, Wisconsin. [The children's great-great-grandmother] is/was a member of the Ojibwa Tribe.

¶ 4. At a hearing on August 3, 2001, the circuit court addressed this motion. The court initiated further inquiry and requested that Neal's mother provide additional details regarding the children's heritage that might indicate that they were eligible for any tribal membership.

¶ 5. By letter dated August 3, 2001, the assistant district attorney of Sheboygan County sent a notice to the U.S. Department of the Interior describing the possible Indian child status of the children. The letter noted information apparently obtained as a result of the additional inquiry requested by the circuit court. It stated that the children's grandmother indicated that her grandmother was born on an Indian reservation somewhere in Canada around 1880 and later moved to Marinette, Wisconsin. Neal's motion was attached to the letter.

¶ 6. The acting director of the Office of Tribal Services responded with a letter dated August 22, 2001, explaining that the information was insufficient to make a determination regarding the Indian child status of the children:

We are unable to determine Indian ancestry due to insufficient information on tribal affiliation. The Bureau of Indian Affairs does not maintain comprehensive list [sic] of persons possessing Indian blood. This kind of information can be obtained from the Tribe itself, if tribal affiliation can be determined.
. . . Pursuant to the [ICWA], it is incumbent upon the agency responsible for the action such as child custody proceedings involving Indian children to notify the appropriate tribe(s) directly of their right to intervene in proceedings involving their tribal children. Accordingly, if additional information on tribal affiliation becomes available. . . you are advised to notify the appropriate tribe(s) directly of their right to intervene in the above proceedings.

¶ 7. On September 14, 2001, Neal filed a motion that "the prosecution be compelled to provide notice of these proceedings to the Ojibwa Tribe in Marinette, Wisconsin, as previously and specifically requested, in compliance with the Indian Child Welfare Act." At a hearing on September 20, 2001, the following discussion occurred:

THE COURT: ... Item number 2 then is notice to the Ojibwa Tribe in Marinette, Wisconsin, under the Indian Child Welfare Act. Attorney Spoerl, on that issue?
ATTORNEY SPOERL: This was a follow-up to a motion that I filed or that was heard last time we were in court. After that motion hearing, my client's mother went down to the District Attorney's Office and provided, I believe, as much information as she had concerning the tribal connection that she has through her family.
Specifically, in my earlier motion, I mentioned the Ojibwa Tribe in Marinette, Wisconsin. I'm sure my client's mother explained why she believed that the Ojibwa Tribe was a connection ...
For some reason, notice was not sent specifically to the Ojibwa Tribe in Marinette. I don't know why.
THE COURT: Mr. Van Akkeren, on notice to the Ojibwa Tribe?
ATTORNEY VAN AKKEREN: Your honor, to my knowledge, there is no Ojibwa Tribe in Marinette, Wisconsin. One of the — I provided to the Court the letter we sent to the Secretary of the Interior, and I provided the Court the response.
An additional effort to try to find an Ojibwa Tribe in Marinette, Wisconsin, I searched the internet for any reference to them. Ms. Erdmier contacted the Bureau of Indian Affairs, the local office in Fort Snelling, Minnesota. They do not list any Ojibwa Tribe in Mari-nette, Wisconsin.
I reviewed a juvenile court handbook which I use which discusses the various, juvenile court handbook concerning Wisconsin, lists Indian tribes within Wisconsin, and there is no Ojibwa Tribe listed in Mari-nette, Wisconsin. We have no way of notifying any Ojibwa Tribe in Marinette, Wisconsin.
THE COURT: I don't know either. I'm fairly familiar with Marinette, Wisconsin, having some property in Marinette County. There certainly are Chippewas, which is another name for the Ojibwa. It's the more anglicized name in Wisconsin, obviously, at various observations [sic] of Red Cliff and other places. I certainly don't know of any in Marinette. If the Bureau of Indian Affairs knows of none, I guess there won't be any.
ATTORNEY VAN AKKEREN: I searched under Chippewa because I knew that was the anglicized version.
THE COURT: . . . Based on the sketchy information provided by [Neal's] mom, I don't think the Department or Public is in any position to do anything further than it has done. I'm satisfied that under the circumstances the provisions of the Indian Child Welfare Act have been met.

¶ 8. A jury returned a verdict finding grounds to terminate Neal's parental rights and the circuit court ordered Neal's parental rights terminated. Neal appealed on the issue of compliance with the notice requirement in 25 U.S.C. § 1912(a). He asserted that notice should have been sent to the six Chippewa tribes in Wisconsin listed by the Bureau of Indian Affairs as Indian tribes recognized to receive services from the Secretary of the Interior. This court granted the department's petition to bypass the court of appeals pursuant to Wis. Stat. (Rule) § 809.60 (1999-2000).

H-Í

¶ 9. This case provides us with an opportunity to review when and under what circumstances a court has reason to know that a child involved in a termination of parental rights proceeding is an "Indian child" under the ICWA thereby triggering the notice requirement. This issue is essentially one of statutory interpretation which presents a question of law subject to independent appellate review. In re D.S.P., 166 Wis. 2d 464, 471, 480 N.W.2d 234 (1992). In reaching our determination, we first briefly discuss the background and objectives of the ICWA. We then analyze the notice requirement of 25 U.S.C. § 1912(a). Finally, we apply our analysis of the notice requirement to the circuit court proceedings and conclude that the information before the circuit court was too vague for the court to have reason to know that each of Neal's children met the definition of "Indian child" under the ICWA. Because the information was insufficient to show that the ICWA applied in this case, no notice was required.

hH I — I

¶ 10. An understanding of the background and objectives of the ICWA is essential to our analysis. The ICWA was enacted in 1978 in response to mounting evidence of abusive child welfare practices that were separating large numbers of Indian children from their families and tribes through adoption or foster care placement, usually to non-Indian homes. See Mississippi Band of Choctaw Indians v. Holy field, 490 U.S. 30, 32 (1989) (detailing background to the ICWA). In describing the state of affairs that led to the ICWA, a House Report noted that the "wholesale separation of Indian children from their families is perhaps the most tragic and destructive aspect of American Indian life today" and the "disparity in placement rates for Indians and non-Indians is shocking." H.R. Rep. No. 95-1386 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7531.

¶ 11. The Congressional findings in the ICWA recognized that: (a) Indian children are essential to the continued existence and integrity of Indian tribes, (b) Indian families are often broken up by the unwarranted removal of children with an alarmingly high percentage of these children being placed in non-Indian foster and adoptive homes and institutions, and (c) state agencies and judicial bodies often fail to recognize the essential tribal relations of Indian people and the cultural and social standards of Indian communities and families.

¶ 12. Consistent with the Congressional findings, the ICWA declares a policy of protecting the best interests of Indian children and promoting the stability and security of Indian tribes and families:

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

¶ 13. The U.S. Department of the Interior's Bureau of Indian Affairs has issued guidelines to state courts to further compliance with the ICWA (Guidelines). The Guidelines do not have binding effect, but courts generally consider them to be helpful in interpreting the ICWA. In re D.S.P., 166 Wis. 2d at 477; Brown Co. v. Marcella G., 2001 WI App 194, ¶ 8, 247 Wis. 2d 158, 634 N.W.2d 140. According to the Guidelines, the ICWA expresses a "clear preference for keeping Indian children with their families, deferring to tribal judgment on matters concerning the custody of tribal children, and placing Indian children who must be removed from their homes within their own families or Indian tribes." The Guidelines state that the ICWA and the Guidelines "shall be liberally construed in favor of a result that is consistent with these preferences."

IV

¶ 14. The ICWA contains procedural and substantive provisions for involuntary child custody proceedings when an "Indian child" is involved. Among the procedural provisions is the notice requirement in 25 U.S.C. § 1912(a) which provides that in "any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe ... of the proceedings and of their right of intervention."

¶ 15. One of the purposes of the notice requirement is to enable an Indian tribe to participate in determining whether the child involved in the proceeding is an "Indian child." See In re Jeffrey A., 127 Cal. Rptr. 2d 314, 317 (Cal.App. 2002). A tribe cannot participate in determining tribal membership unless the tribe is aware of the proceeding. The notice requirement recognizes that Indian tribes have an interest in Indian child welfare proceedings apart from the parties and that the information supplied by the parties regarding the "Indian child" status of the child may be incomplete. In re M.C.P., 571 A.2d 627, 633 (Vt. 1989). Thus, the ICWA creates the notice requirement and uses the "reason to know" threshold as the basis for when notice is required..

¶ 16. The threshold is satisfied when the court has "reason to know" that the child is an "Indian child" — a term defined by the ICWA as meaning something more specific than merely having Native American ancestors. The ICWA defines "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4). Both definitions of an "Indian child" require analysis of a person's membership in an "Indian tribe" — another term defined by the ICWA. "Indian tribe" means "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians . . . Id. § 1903(8). Therefore, the analysis involves determining whether the applicable tribe is eligible for services provided by the U.S. Secretary of the Interior. See In re J.T. and C.T., 693 A.2d 283, 289 (Vt. 1997).

¶ 17. When dealing with an unidentified tribe, it is difficult to make assumptions regarding whether a person is likely to be a member of the tribe because tribes use a wide range of membership criteria. For example, many tribes require a person to register or enroll in order to be considered a member of the tribe, but some do not and automatically include a person as a member if the person is descended from a tribal member who was listed on the tribal rolls as of a specific date. Accordingly, the absence of enrollment alone may not necessarily be determinative of whether a person is a member of a tribe.

¶ 18. The issue then becomes when and under what circumstances does a court have "reason to know" that a child is an "Indian child" under the ICWA. The Guidelines are helpful in addressing this issue.

¶ 19. According to the Guidelines, in "any involuntary child custody proceeding, a state court shall make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe." After such inquiry, if "a state court has reason to believe a child involved in a child custody proceeding is an Indian, the court shall seek verification of the child's status from either the Bureau of Indian Affairs or the child's tribe."

¶ 20. The Guidelines describe the following circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian child:

(i) Any party to the case, Indian tribe, Indian organization or public or private agency informs the court that the child is an Indian child.
(ii) Any public or state-licensed agency involved in child protection services or family support had discovered information which suggests that the child is an Indian child.
(iii) The child who is the subject of the proceeding gives the court reason to believe he or she is an Indian child.
(iv) The residence or domicile of the child, his or her biological parents, or the Indian custodian is known by the court to be or is shown to be a predominantly Indian community.
(v) An officer of the court involved in the proceeding has knowledge that the child may be an Indian child.

¶ 21. In this case, circumstance (v) of the Guidelines arguably is implicated because Neal's attorney, an officer of the court, asserted that the children have Indian ancestry. Neal claims that his children may be Indian children. However, as we discuss below, we conclude that the information available to the court was too vague for the court to have reason to know that each of Neal's children is an "Indian child" as defined by the ICWA.

V

¶ 22. Although the ICWA provides broad protections, there are limits to its applicability. Before the notice requirement of the ICWA can be invoked, the circuit court must first determine if it has reason to know the child is an "Indian child" as defined by the ICWA.

¶ 23. As noted above, the ICWA defines "Indian child" as "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4). Additionally, a tribe is defined as "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians . . . ." Id. § 1903(8).

¶ 24. Neal has never asserted that the children are members of a federally recognized tribe or that they are eligible for membership in a federally recognized tribe and are biological children of a tribe member. He has never stated that he has tribal membership.

¶ 25. Rather, the record establishes that at the first motion hearing Neal averred that his children have "Indian heritage" and asserted that through the children's great-great-grandmother their "ancestry stems from the Ojibwa Tribe in Marinette, Wisconsin." The court initiated further inquiry in an attempt to identify and clarify tribal membership.

¶ 26. Additional information obtained from the children's grandmother indicates that her grandmother was born on an unspecified Indian reservation somewhere in Canada around 1880, and that she later moved to Wisconsin. She did not claim that her grandmother had been a member of a federally recognized tribe while in Canada or that she retained or sought tribal membership while in Wisconsin.

¶ 27. The record reflects that the assistant district attorney sent a letter to the Department of the Interior containing all of the known information regarding the children's Native American ancestry. The Department of the Interior responded that it was "unable to determine Indian ancestry due to insufficient information on tribal affiliation. . .. Accordingly, if additional information on tribal affiliation becomes available .. . you are advised to notify the appropriate tribe (s) directly of their right to intervene in the above proceedings."

¶ 28. At the second motion hearing, Neal's attorney informed the circuit court that the children's grandmother provided the District Attorney's office with "as much information as she had concerning the tribal connection." The assistant district attorney advised the court that in addition to sending a letter to the Department of the Interior, other attempts were made to locate an Ojibwa Tribe in Marinette, Wisconsin. The local office of the Bureau of Indian Affairs was contacted and it did not have any listing of an Ojibwa Tribe in Marinette. A juvenile court handbook was reviewed which lists Indian tribes within Wisconsin, and there was no Ojibwa Tribe listed in Marinette. Finally, a search of the internet was conducted for any reference to an Ojibwa tribe in Marinette. None was found. The assistant district attorney stated that the search was also done for a Chippewa tribe in Marinette because he "knew that was the anglicized version." They were unable to locate a Chippewa tribe in Marinette.

¶ 29. The circuit court echoed the Department of the Interior's conclusion that the information was "insufficient." The court concluded that the information was too "sketchy" to require further notice under the ICWA and that under these circumstances the notification provisions of the ICWA had been met. Like the Department of the Interior and the circuit court, we also find the information in this case to be inadequate. However, unlike the circuit court, we determine that because the information was insufficient to show that the ICWA notice provisions even applied in this case, no notice was required.

¶ 30. Our conclusion is supported by decisions of other courts that have wrestled with this issue. In In re A.L. and J.L., 623 N.W.2d 418 (N.D. 2001), the North Dakota Supreme Court held that information that children may be American Indian was insufficient to invoke the ICWA. The court noted the dearth of information available to the lower court in assessing whether the children met the definition of an "Indian child" under the ICWA. It concluded that "(n)othing in this record suggests the children were members of an Indian tribe, or eligible for membership in an Indian tribe, and counsel's unsupported and vague statements were insufficient to suggest 'Indian child' status." Id. at 422.

¶ 31. Likewise, in In re Johanson, 402 N.W.2d 13 (Mich.App. 1987), the court emphasized that the ICWA requires an initial determination regarding the Indian child status of the child. The court noted that nothing in the record indicated that the trial court knew or should have known that the child was an Indian child. Although the record contained references to the Saginaw Tribe of Chippewa Indians, it appeared those references concerned the fact that at one time the mother rented a home on the Chippewa reservation. She readily acknowledged that she was not a member of the tribe and that at one time she unsuccessfully attempted to obtain membership. The court stated that just because the child may have Indian heritage does not qualify him as an Indian child as defined by the ICWA. The court concluded that the trial court did not know and had no reason to know that the child was an Indian child. Id. at 16.

¶ 32. In In re Guardianship of J.O., 743 A.2d 341 (N.J.Super. 2000), the New Jersey appeals court found that an amorphous statement of possible Indian ancestry made by the mother's attorney provided insufficient information to trigger the application of the ICWA. Citing to 25 C.F.R. § 23.11(d) (1994), the court noted that the regulation requires that the notice contain, in part, the name of the Indian tribe in which the child is enrolled or may be eligible for enrollment, and the names and addresses of the Indian child's parents, grandparents, and great-grandparents, together with their birthdates, places of birth and death, and tribal affiliation numbers. Not even a small fraction of the requested information had been provided and the family's background did not suggest Indian heritage. Id. at 347. As a result, the court concluded that "vague and casual reference to Indian ancestry made by [the mother's counsel] was insufficient to trigger the Act's notice requirement." Id.

¶ 33. We acknowledge that other courts struggling with this issue have concluded that the information before them was sufficient to trigger the notice requirement. However, the assertions in those cases provided more specific information and reason to know that the children met the definition of "Indian child" under the ICWA or focused on what constitutes sufficient notice. For example, in In re Colnar, 757 P.2d 534 (Wash.App. 1988), the mother alleged that she was one-quarter Apache, claiming that made her eligible for membership in an Indian tribe. The Department of Social and Health Services contacted the Apache Nation for the purposes of researching the bloodline of the mother's maternal grandmother. The case worker asked specific questions about the mother, her mother and grandmother and then filed an affidavit indicating that the child was not qualified to be enrolled in a tribe. Relying on the affidavit, the trial court found that the ICWA did not apply. The appellate court remanded the case concluding that the contact by the social worker did not constitute proper notice and that the State thus failed to give notice to the Apache tribe or the Bureau of Indian Affairs as required under the ICWA.

¶ 34. Similarly in In re Junious, 144 Cal.App.3d 786 (1983), the California appellate court concluded that notice was required. There, the initial evidence before the trial court indicated that the child was potentially affiliated with an Indian tribe in Canada through the child's great-grandfather. However, later inquiry revealed that the tribe was in fact an American tribe. It was undisputed that the mother's mother was an enrolled member of the Nooksack tribe. It was also undisputed that the mother had one-half degree Indian blood. The mother interpreted the relevant Nooksack constitutional provisions to grant membership if she was born to an enrolled member who has one-half degree Indian blood. The Department of Social Services countered with a different interpretation of the provisions arguing that membership does not automatically follow from eligibility. The trial court accepted the interpretation of the department and concluded that the ICWA was not applicable since the child was not an "Indian child."

¶ 35. The appellate court determined that the trial court erred in approaching resolution of the issue in this manner. It noted that "the statutory definition of Indian child, taken together with the Nooksack constitutional provisions, resulted in an ambiguity which was not easily resolved." Id. at 796. It concluded that it was for the tribe to resolve any ambiguity regarding membership and that notice to the tribe should have been provided. Unlike the unidentified Ojibwa tribe in the case before us, Junious involved a tribe that had been specifically identified, could be located, and was clearly an "Indian tribe" under the ICWA.

¶ 36. As the above cases illustrate, courts which have struggled with determining when information is sufficient to trigger the provisions of the ICWA have reached differing conclusions. All of the cases recognize the importance of advancing the objectives of the ICWA. The decisions in the cases tend to be fact sensitive. Our facts are more akin to those which have concluded that the information before the court was insufficient to show that the ICWA applied.

¶ 37. We acknowledge that the circuit court applied a different analysis in addressing compliance with the notice requirement of 25 U.S.C. § 1912(a). The circuit court terminated the parental rights and determined that the notice requirements of the ICWA had been met. We determine that there was insufficient information before the court to apply the ICWA and trigger its notice provisions. However, we will not reverse a circuit court's order if the facts of the record applied to the proper legal standard support the circuit court's ultimate determination. In re Paternity of Stephanie R.N., 174 Wis. 2d 745, 767, 498 N.W.2d 235 (1993).

¶ 38. We compliment the circuit court in proceeding with caution and giving notice to the Secretary of the Interior even when the paucity of information before the court was insufficient to invoke the ICWA. We likewise urge other circuit courts to proceed with caution and to initiate further inquiry when confronted with vague assertions of Indian heritage. Proceeding with caution and initiating further inquiry advance the ICWA's key objectives of protecting the best interests of Indian children and promoting the security, survival, and stability of Indian families and tribes. The importance of these objectives is undeniable. Accordingly, courts must make every effort to ensure compliance with the ICWA, including ensuring that Indian tribes are properly notified.

¶ 39. In sum, we affirm the order of the circuit court because we conclude that the information before the circuit court was too vague for the court to have reason to know that each of Neal's children met the definition of Indian child under the ICWA. Because the information was insufficient to show that the ICWA applied in this case, no notice was required. Accordingly, but with different rationale, we affirm the order of the circuit court terminating Neal's parental rights to his children.

By the Court. — The order of the circuit court is affirmed.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 40. (dissenting). I disagree with the majority opinion's conclusion that the information before the circuit court was insufficient to trigger the notice requirements of the Indian Child Welfare Act (ICWA). I conclude, as did the circuit court, that the limited information at the circuit court's disposal gave it reason to know that an Indian child might be involved and that notice was therefore required under the ICWA.

¶ 41. I join the majority opinion in urging circuit courts "to proceed with caution and to initiate further inquiry when confronted with vague assertions of Indian heritage." I write because I believe the majority opinion undermines this caution and the objectives of the ICWA by concluding that the vague assertions in the present case did not trigger the ICWA.

¶ 42. The statutorily required notice is designed to enable a tribe to determine whether the child involved in the proceeding is an "Indian child" and whether the tribe should intervene in the proceedings. Without notice, a tribe has no opportunity to intervene. The consequences of lack of notice are serious: the proceedings may be invalid.

¶ 43. In the present case the circuit court should be commended for its efforts. The circuit court properly concluded that there was reason to know that an Indian child might be involved in the proceeding and that notice was required. The harder question is whether reasonable effort was made to identify and notify the appropriate tribe. I am reluctant to second-guess the circuit court that acted so responsibly in the present case. I am nevertheless convinced, in light of the purpose of the ICWA, that a reasonable effort in the present case should have included notice to the list of Chippewa bands provided by the Bureau of Indian Affairs.

¶ 44. I would therefore remand the cause to the circuit court for furnishing additional notice. If after additional notice is given the circuit court determines that the ICWA does not apply, the original circuit court order terminating parental rights would stand.

¶ 45. For the reasons set forth, I dissent.

       Neal J.G. appeals from an order of the Circuit Court for Sheboygan County, John B. Murphy, Judge.

       Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (2002).

       The terms "Ojibwa" and "Chippewa" are synonymous. See The American Heritage Dictionary of the English Language 334, 1258 (3d ed. 1992).

       The Bureau of Indian Affairs' list of Indian tribes recognized and eligible to receive services contains sixteen tribes with "Chippewa" in the tribal name — six in Wisconsin, six in Michigan, two in Minnesota, one in North Dakota and one in Montana. 67 Fed.Reg. 46328 (July 11, 2002). At the time of the circuit court's action in this case, the then current list contained the same "Chippewa" tribes. 65 Fed.Reg. 13298 (March 13, 2000).

       25 U.S.C. § 1901.

         Id. § 1902.

        Guidelines for State Courts; Indian Child Custody Proceedings, Department of Interior, Bureau of Indian Affairs (Guidelines), 44 Fed. Reg. 67584, 67586 (1979).

        Id. at 67584 (The Guidelines "are not intended to have binding legislative effect." State courts "are free to act contrary to what the Department has said if they are convinced that the Department guidelines are not required by the statute itself.").

        Id. at 67585-67586.

        Id. at 67586.

        See Guidelines, 44 Fed. Reg. at 67586 ("[T]he best source of information on whether a particular child is Indian is the tribe itself. It is the tribe's prerogative to determine membership criteria and to decide who meets those criteria."); Felix S. Cohen's Handbook of Federal Indian Law 20 (R. Strickland et al. eds., 1982 ed.) ("The courts have consistently recognized that one of an Indian tribe's most basic powers is the authority to determine questions of its own membership.").

        See American Indian Policy Review Comm'n, 95th Cong., 1st Sess. Final Report 108-109 (Comm. Print 1977) ("Many tribal provisions call for one-fourth degree of blood of the particular tribe but tribal provisions vary widely. A few tribes require as much as one-half degree of tribal blood and a small number permit any descendant of a tribal member to be enrolled, regardless of blood quantum."). See also Felix S. Cohen's Handbook of Federal Indian Law at 22-23.

        See U.S. v. Broncheau, 597 F.2d 1260, 1263 (1979) ("Enrollment is the common evidentiary standard for establishing Indian status, but it is not the only means nor is it necessarily determinative."). Examples of Chippewa tribal provisions that require registration or enrollment include: (a) Article II, Section 1 of the Constitution and Bylaws of the Red Cliff Band of Lake Superior Chippewa Indians in the State of Wisconsin, at http://www.narf.org/nill/Constitutions/RedCliffConst/redcliffconsttoc.htm (December 2, 2002); (b) Article II, Section 1 of the Constitution of the Grand Traverse Band of Ottawa and Chippewa Indians of Michigan, at http://thorpe.ou.edu/consitution/GTBcons3.html (December 2, 2001); and (c) Article II, Section 1 of the Revised Constitution and Bylaws of the Minnesota Chippewa Tribe, at http://thorpe.ou.edu/constitution/chippewa/index.html (December 2, 2002). An example of a Chippewa tribal provision that does not require registration or enrollment is Article II, Section 1(b) of the Constitution and Bylaws of the Turtle Mountain Band of Chippewa Indians of Belcourt, North Dakota, at http://thorpe.ou.edu/ constitution/Turtlemtn/TMconst.html (December 2, 2002) (defining tribal membership to include all "descendants of persons whose names appear on the [tribe's 1943 roll], provided that such descendants possess one-fourth or more Indian blood, and provided further that such descendants are not domiciled in Canada.").

       See In re D.S.P., 166 Wis. 2d 464, 477, 480 N.W.2d 234 (1992) ("While the [Guidelines] are not themselves binding upon courts, we find that they are helpful and should be considered when deciding whether a witness is a qualified expert under the ICWA.").

       Guidelines, 44 Fed. Reg. at 67588.

        Id. at 67586.

        Id.

       We note that the ICWA uses the phrase "reason to know" and the Guidelines, without explanation, use the phrase "reason to believe." Because the Guidelines are not binding, we use the phraseology of the ICWA.

       Majority op., ¶ 38.

       25 U.S.C. § 1914 (2001).

       For courts providing such a remedy, see, e.g., In re J.T., 693 A.2d 283, 289 (Vt. 1997), and In re C.H., 510 N.W.2d 119, 124 (S.D. 1993).