author:
DIANE S. SYKES, J.
      ANN WALSH BRADLEY, J.

text:
    State of Wisconsin, Plaintiff-Appellant, v. Jennifer K. Matejka, Defendant-Respondent-Petitioner.
    Supreme Court

      No. 99-0070-CR.

      Oral argument September 6, 2000.

    Decided February 6, 2001.

    2001 WI 5
    (Also reported in 621 N.W.2d 891.)

      For the defendant-respondent-petitioner there were briefs by James B. Connell and Crooks, Low, Con-nell & Rottier, S.C., Wausau, and oral argument by James B. Connell.

    For the plaintiff-appellant the cause was argued by Jennifer E. Nashold, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   DIANE S. SYKES, J.

¶ 1. The issue in this case is whether, under the consent exception to the Fourth Amendment's warrant requirement, a driver's consent to a police officer's search of a vehicle extends to a passenger's jacket left in the vehicle at the time of the search. Defendant Jennifer Matejka was one of several passengers in a van that was stopped by a state trooper for a traffic violation. The trooper obtained the driver's consent to search the van and ordered everyone out while he conducted the search. Matejka left her jacket behind, and the trooper eventually searched it, finding drug paraphernalia and marijuana. Additional drug paraphernalia, marijuana, and LSD were discovered during a custodial search of Matejka and her belongings after her arrest.

¶ 2. The circuit court suppressed the drug evidence, finding a Fourth Amendment violation because Matejka had not personally consented to the search of her individual property within the van. The court of appeals reversed, concluding that the driver's consent to the search of the van encompassed the jacket Matejka had left in it. We agree, and therefore affirm the decision of the court of appeals which reversed the circuit court's suppression of the drug evidence in this case.

FACTS

¶ 3. On March 16,1997, Wisconsin State Trooper David Forsythe observed a van traveling on a Portage County highway. The van had no front license plate, so he pulled it over.

¶ 4. The van had windows all the way around the exterior. From his squad car, Forsythe could see the driver and a passenger in the front seat. As he pulled the van over, Forsythe noticed the driver "leaning over to his right and going down lower as if he was either trying to hide something or retrieving something." For-sythe said he thought the driver might have been "going for a weapon or hiding a weapon or a multitude of other possible options." As a result, Forsythe approached the van with "heightened awareness."

¶ 5. As he walked along the driver's side of the van, Forsythe looked through a side vent window and observed several other passengers covered with blankets and pillows on the back floor of the van. Forsythe told the passengers to put their hands where he could see them and asked the driver to step out of the van. The driver, Anthony Miller, did so, and handed For-sythe his driver's license. Forsythe told Miller he was concerned about his movements in the front seat of the van and asked him if "there was anything he should be aware of." Miller said no, but consented to a frisk for weapons, which produced nothing.

¶ 6. Forsythe then checked the area around the driver's seat for weapons and noticed a backpack. Inside the backpack Forsythe discovered a toy handgun and a postal scale. Forsythe testified that he first thought the gun was an actual firearm, but on closer inspection realized it was not. Miller told Forsythe he used the scale to weigh mail. Forsythe suspected the scale was used to weigh illegal drugs.

¶ 7. Forsythe told Miller he was going to give him a warning for the license plate violation. He then asked Miller to open the back hatch of the van so he could watch everyone inside while he wrote the warning in his squad car. After the hatch was opened, Forsythe asked the passengers for identification. Forsythe then returned to his squad car, where he called for back-up and ran criminal history checks on the van's occupants. Forsythe learned that several of the passengers, including Matejka, were on probation and that Matejka had a drug-related criminal history.

¶ 8. While Forsythe prepared the warning and ran the checks, Trooper Parrott arrived as back-up. Forsythe returned to the van, gave Miller the warning, and told him he was free to go. Forsythe then asked Miller if there was anything he should "be aware of in the van as far as any other guns, drugs, anything illegal at all." Miller said no. Forsythe then asked for permission to search the van. Miller consented.

¶ 9. Forsythe told the passengers he was concerned about contraband in the van and explained that the driver had consented to a search of the vehicle. Forsythe asked the passengers to get out of the van while he conducted the search. As they did so, Forsythe asked about "any weapons, knives, guns, razor blades," or anything else he should be aware of, and asked for consent to frisk for weapons. Each consented, including Matejka, and no weapons were discovered.

¶ 10. Forsythe searched the van while Trooper Parrott waited outside with the driver and passengers. It was a cold March day, and some asked for their jackets. Parrott asked Forsythe to bring the jackets out of the van.

¶ 11. Forsythe got the jackets out of the van, checking each one for weapons. Forsythe said he did not know which jacket belonged to whom, although Matejka testified that each passenger was asked to describe his or her jacket. In any event, Forsythe found a "wooden dugout type container" containing marijuana in the pocket of the jacket Mátejka identified as hers.

¶ 12. Forsythe took Matejka aside, told her what he had discovered, and arrested her. Forsythe put Matejka in the back of the squad car and returned to his search of the van. He found more drug paraphernalia and drugs belonging to other passengers in the van. Forsythe also searched a clutch-type bag belonging to Matejka and found a tweezers with burnt marijuana resin on the ends.

¶ 13. During a custodial search at the Portage County jail, officers found another small baggie containing marijuana in Matejka's jacket pocket. They also found two hits of LSD in her wallet. Matejka admitted she had purchased the LSD at a concert in Minneapolis.

¶ 14. Matejka was charged with two counts of misdemeanor drug possession. She moved to suppress the drug evidence, arguing that the warrantless search violated her Fourth Amendment rights because she had a reasonable expectation of privacy in her personal property in the van and never gave Forsythe permission to search her jacket. Portage County Circuit Court Judge Frederic W. Fleishauer granted the motion, concluding that the search was unreasonable under the Fourth Amendment because Matejka had not consented to the search of her individual property in the van.

¶ 15. The court of appeals, in a one-judge decision by Judge Patience D. Roggensack, reversed. State v. Matejka, No. 99-0070-CR, unpublished slip op. (Sept. 2, 1999). Judge Roggensack relied on United States Supreme Court precedent regarding consent and vehicle searches and concluded that it was not unreasonable for Forsythe to search Matejka's jacket based on the driver's consent.

STANDARD OF REVIEW

¶ 16. We apply a two-step standard of review to constitutional search and seizure inquiries. State v. Martwick, 2000 WI 5, ¶ 21, 231 Wis. 2d 801, 604 N.W.2d 552. In reviewing a motion to suppress, we uphold the circuit court's findings of evidentiary or historical fact unless they are clearly erroneous. State v. Kieffer, 217 Wis. 2d 531, 541, 577 N.W.2d 352 (1998). We then independently evaluate those facts against a constitutional standard to determine whether the search was lawful. Martwick, 2000 WI 5 at ¶ 18.

¶ 17. Searches conducted without a warrant are per se unreasonable under the Fourth Amendment to the United States Constitution. Katz v. United States, 389 U.S. 347, 357 (1967); State v. Phillips, 218 Wis. 2d 180, 196, 577 N.W.2d 794 (1998). Exceptions to the warrant requirement include voluntary third-party consent. Id. There is no challenge to the voluntariness of the driver's consent to search here; the issue involves the scope of that consent. The State bears the burden of establishing, clearly and convincingly, that a warrant-less search was reasonable and in compliance with the Fourth Amendment. Kieffer, 217 Wis. 2d at 541-42.

ANALYSIS

¶ 18. The question of whether a driver's consent to the search of a vehicle justifies the warrantless search of a passenger's belongings within the vehicle has not been addressed by the United States Supreme Court and is a matter of first impression in this state.

¶ 19. The Supreme Court recently held that when an officer has probable cause to search a vehicle, he or she may search the vehicle itself and any items within it that are capable of containing the object of the search, including items of personal property belonging to passengers. Wyoming v. Houghton, 526 U.S. 295, 307 (1999); see also State v. Pallone, 2000 WI 77, ¶ 70, 236 Wis. 2d 162, 613 N.W.2d 568. The Supreme Court long ago held that officers may conduct warrantless searches based upon a third-party's consent, where the third party has common authority over the premises to be searched. United States v. Matlock, 415 U.S. 164, 169-71 (1974).

¶ 20. So we know it is constitutionally reasonable for an officer conducting a probable cause search of a vehicle to search and seize passenger property. We also know it is constitutionally reasonable for an officer conducting a third-party consent search of a premises to seize items belonging to one who is not asked to consent, provided common authority over the premises is established.

¶ 21. This case, however, is something of a hybrid. It involves neither a probable cause automobile search nor a third-party consent premises search. Instead, it involves a third-party consent automobile search. The question of the legality of the search is best resolved, therefore, by reference to the principles underlying both the automobile and consent exceptions to the Fourth Amendment's warrant requirement.

Automobile Searches

¶ 22. The contents of automobiles generally receive reduced Fourth Amendment protection for two reasons. First, the "ready mobility" of an automobile makes it more likely that contraband or evidence of a crime will vanish during the time needed to comply with the warrant requirement. Pallone, 2000 WI 77 at ¶ 60 (citing Houghton, 526 U.S. at 304). Second, because traveling in an automobile exposes passengers and items in the vehicle to public view, there is a reduced expectation of privacy in the automobile and its contents. Id.

¶ 23. The Supreme Court first recognized the automobile exception in Carroll v. United States, 267 U.S. 132, 149-56 (1925), and concluded that law enforcement officers may search an entire motor vehicle without a warrant if there is probable cause to believe that the vehicle contains contraband. The Court clarified Carroll in United States v. Ross, 456 U.S. 798, 825 (1982), and recognized that the scope of such a probable cause search extends to "every part of the vehicle and its contents that may conceal the object of the search," including closed containers.

¶ 24. The Supreme Court recently applied the Ross holding to a search of passengers' property in Houghton, 526 U.S. at 295-96. Sandra Houghton was a passenger in a car stopped for speeding by the Wyoming Highway Patrol. Id. at 297-98. During the stop, the officer noticed a syringe in the driver's pocket. Id. at 298. When asked about the syringe, the driver admitted he used it to take illegal drugs. Id. Based on the driver's admission, the officer conducted a probable cause search of the car for contraband. Id. During the search, the officer found Houghton's purse on the back seat and searched it, discovering drug paraphernalia and methamphetamine. Id.

¶ 25. Houghton challenged the search. The Court held that "police officers with probable cause to search a car may inspect passengers' belongings found in the car that are capable of concealing the object of the search." Id. at 307. The Court's opinion was a logical extension of the Ross doctrine.

¶ 26. In reaching its conclusion, the Court weighed the degree of intrusiveness of the search against the governmental interests at stake. Id. at 303-04. The Court noted that although searches of the person, like the Terry weapons frisk, constitute "a severe, though brief, intrusion upon cherished personal security," the same "traumatic consequences are not to be expected" during a search of personal property in a vehicle. Id. at 303. The Court also observed that "[pjassengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars," because cars traveling on public roads are exposed to public scrutiny and pervasive governmental controls. Id. at 303.

¶ 27. On the other side of the scale, the Court considered the government's interest in effective law enforcement: (1) the "ready mobility" of the automobile creates a risk that contraband will be permanently lost while authorities obtain a warrant; (2) automobile passengers will often be engaged in common enterprise with the driver and thus will have the same interests in concealing their wrongdoing; and (3) a criminal might hide contraband in a passenger's belongings as readily as in other containers in the vehicle. Id. at 304-05. The Court concluded that a probable cause automobile search encompasses any items of passenger property within the automobile that may contain or conceal the object of the search. Id. at 303, 307.

¶ 28. As we have already noted, this case is not directly governed by the automobile exception because it does not involve a search based upon probable cause. However, these cases reflect the Supreme Court's judgments about the expectation of privacy that attaches to property in an automobile, the level of intrusiveness of a personal property search, and the individual's interests as against the government's in this context. As such, they are highly relevant to our evaluation of the reasonableness of the consent-based automobile search in this case. And the cases establish that the Supreme Court considers the expectation of privacy to be much diminished, the level of intrusiveness to be slight, and the governmental interests to outweigh the individual's under circumstances such as these.

Consent Searches

¶ 29. The leading case on the consent search of an automobile is Schneckloth v. Bustamonte, 412 U.S. 218 (1973). In Schneckloth, an officer stopped a vehicle for equipment violations. Id. at 220. There were six men in the car. Id. One of the passengers told the officer the car belonged to his brother, who was not present. Id. That passenger consented to a search of the vehicle. Id. Under one of the rear seats, the officer discovered three stolen checks belonging to another passenger, Robert Bustamonte. Id.

¶ 30. The Court upheld the search, concluding that it was justified based upon the voluntary consent of the automobile owner's brother. Id. at 248. Although the analysis in Schneckloth focused on the voluntariness of the consent, its holding implicitly recognized that pursuant to the valid consent of a person with some possessory interest in the vehicle, law enforcement officers may search and seize property in the vehicle belonging to a passenger who has not consented.

¶ 31. In Matlock, 415 U.S. at 170-72, the Supreme Court explored the boundaries of third-party consent to search in the context of a home search. William Matlock was a suspect in a bank robbery. Id. at 166. Officers went to his home and arrested him in the front yard. Id. At the time of the arrest, the officers did not ask Matlock whether he would consent to a search of his home. Id. Instead, the officers were admitted by Matlock's live-in girlfriend, who gave them permission to search the home, including the bedroom she said she shared with Matlock. Id. During the search, the officers discovered cash in a diaper bag in the bedroom closet. Id.

¶ 32. The Court upheld the search, based upon a review of its precedent, including Schneckloth, Coolidge v. New Hampshire, 403 U.S. 443, 487—90 (1971), and Frazier v. Cupp, 394 U.S. 731 (1969). The Court concluded that common authority over the premises to be searched confers third-party capacity to consent:

[W]hen the prosecution seeks to justify a warrant-less search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

Matlock, 415 U.S. at 171 (emphasis added) (footnote omitted). The Court said that the inquiry into common authority does not depend upon the law of property, but upon

mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at 171 n.7 (emphasis added).

¶ 33. This court adopted these principles in Kieffer, 217 Wis. 2d at 542, although we concluded in that case that a father-in-law had no common authority to consent to the search of his daughter and son-in-law's apartment. The apartment was located above a detached garage behind the father-in-law's house, but he possessed neither a key nor generalized permission to enter from his daughter or son-in-law. Id. at 545-46.

¶ 34. Although Matlock concerned third-party consent to search a home, we conclude its principles are fully applicable to the evaluation of third-party consent automobile searches. See, e.g., United States v. Beshore, 961 F.2d 1380, 1382 (8th Cir. 1992); Liu v. Delaware, 628 A.2d 1376, 1383 (Del. 1993). Indeed, given that the expectation of privacy in property in an automobile is significantly less than that in a home, it is logical and reasonable to apply the Matlock analysis to these facts.

¶ 35. Here, the state trooper received consent to search the van from Miller, who, as the owner and driver of the vehicle, had obvious possessory authority over the vehicle and therefore the capacity to consent to its search. This authority extended in common to the jacket that Matejka brought on board and then left behind in the van, by virtue of the joint access and mutual use of the interior of the van shared by the driver and his passengers. Under Matlock, and by implication Schneckloth, Miller's consent to search the van encompassed Matejka's jacket, found inside it.

¶ 36. Matejka argues that the search was unreasonable because Miller did not have common authority over the jacket itself. However, under the circumstances of this case, as in Matlock scad. Schneckloth, the inquiry focuses not necessarily on the third-party's authority over the specific object in question, but the third-party's authority over the premises in which that object is located. See also Frazier, 394 U.S. at 740 (refusing to engage in "metaphysical subtleties" regarding a third-party's authority over certain compartments in a shared duffel bag, instead concluding that the dispositive factor was that the defendant had allowed the third party to use the bag and had left it in the third-party's house, thereby assuming the risk that the third party would allow someone to look inside). This was not, for example, a locked suitcase or briefcase or other such item of private, personal property which might give rise to a different focus for the common authority analysis.

¶ 37. Our conclusion is strengthened by the fact that Matejka, unlike Matlock, was present and aware of the fact that Miller had consented to the search of the common area, the interior of the van, and yet made no attempt to circumscribe the scope of the search to exclude her jacket. A consent search is subject to certain limitations in scope that do not apply to a probable cause search. The scope of consent to search may be limited by the terms of its authorization. Walter v. United States, 447 U.S. 649, 656 (1980). One who consents to a search "may of course delimit as he chooses the scope of the search to which he consents." Florida v. Jimeno, 500 U.S. 248, 252 (1991). Neither Miller nor Matejka attempted to delimit the scope of this search in any way.

¶ 38. In Jimeno, the United States Supreme Court established the analytical framework for evaluating the scope of a consent search of a vehicle for constitutional purposes. Enio Jimeno was stopped for a traffic violation. Id. at 249. The investigating officer had reason to believe that Jimeno was transporting narcotics, told Jimeno of his suspicion, and asked for consent to search the car. Id. After receiving Jimeno's consent, the officer opened the passenger door and observed a folded brown paper bag on the floorboard. Id. at 250. Inside the bag was a kilogram of cocaine. Id.

¶ 39. Jimeno argued that his consent to search his car did not extend to the closed paper bag inside the car. Id. The Court applied an objective test to measure the scope of Jimeno's consent: "what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Id. at 251. The Court, citing Ross, noted that the scope of a search is generally defined by its expressed object. Id. In Jimeno, it was narcotics. Thus, the Court concluded, it was objectively reasonable for the officer to conclude that Jimeno's consent to search the car included the consent to search containers within the car that might contain narcotics. Id.

¶ 40. The Court noted that "[a] reasonable person may be expected to know that narcotics are generally carried in some form of a container. 'Contraband goods are rarely strewn across the trunk or floor of a car.'" Id. (citing Ross, 456 U.S. at 820). The Court held that while "[a] suspect may of course delimit as he chooses the scope of the search to which he consents. . .if his consent would reasonably be understood to extend to a particular container, the Fourth Amendment provides no grounds for requiring a more explicit authorization." Id. at 252.

¶ 41. Applying Jimeno's objective test here, we conclude that the scope of Miller's consent extended to Matejka's jacket, which she had left behind in the van. Forsythe asked Miller if there were any guns, drugs, or other contraband in the van, and then asked if he could search. A reasonable person under these circumstances would understand that the officer intended to search for guns, drugs, and other contraband and that the search would therefore include an inspection of anything capable of holding these things.

¶ 42. Forsythe also told the passengers, including Matejka, that he had permission from the driver to search the van for contraband, and asked them about the presence of guns, drugs or contraband, thus putting them on similar notice. Matejka's jacket pockets were certainly capable of containing drugs, guns, or other contraband. Significantly here, the consent to search was not limited in any way by Miller or Matejka. Thus, the officer's search of Matejka's jacket was well within the proper scope of the consent to search in this case and was therefore reasonable.

¶ 43. Accordingly, based upon the Supreme Court's decisions in Houghton, Schneckloth, Matlock, and Jimeno, and in light of the reduced expectation of privacy that attends property in an automobile, we conclude that the search of Matejka's jacket based upon the driver's consent to search the vehicle was reasonable under the Fourth Amendment. Therefore, we affirm the court of appeals.

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

ANN WALSH BRADLEY, J.

¶ 44. (dissenting). Today's decision undermines the distinction between the consent search and the automobile exception to the warrant requirement of the Fourth Amendment. The majority takes established consent search principles and crossbreeds them with the principles underlying the automobile exception to create a heretofore unknown "hybrid" exception to the warrant requirement: the third-party automobile consent search. The result is an expansive concept of a third party's authority to consent to search the property of the passengers of a vehicle that is both unprecedented and constitutionally unsupportable.

¶ 45. At issue today is the authority of a third party to grant consent to search the property of another under the Fourth Amendment. No new formulations are needed to answer this question.

¶ 46. When examining the legitimacy of a third-party consent search, the established first inquiry is whether the third party who granted consent to search "possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171 (1974); State v. Kieffer, 217 Wis. 2d 531, 547, 577 N.W.2d 352 (1998). If the third party is without actual authority, the consent may be valid if it was reasonable for an officer to conclude that such authority exists. Illinois v. Rodriguez, 497 U.S. 177, 188-89 (1990); Kieffer, 217 Wis. 2d at 548.

¶ 47. The automobile exception to the warrant requirement is not at issue in this case. The warrant-less search of an automobile is justified only when the police have probable cause to believe that an automobile contains evidence of a crime. State v. Caban, 210 Wis. 2d 597, 607, 563 N.W.2d 501 (1997). This exception to the warrant requirement is grounded in the reduced expectation of privacy one has in an automobile and the government's interest in preventing the evidence for which probable cause exists from being whisked away while a warrant is being obtained. California v. Carney, 471 U.S. 386, 390—93 (1985).

¶ 48. Based solely on the fact that the consent search at issue was that of an automobile, the majority disregards the established line of analysis for consent searches. Rather than address the realities of Miller's common authority over the jacket or his relationship to it, the majority invokes the specter of an individual's reduced expectation of privacy in an automobile and an alleged overriding governmental interest. By imbuing consent search principles with those underlying the automobile exception, the majority attempts to justify the leap it makes from the driver's possessory authority over the vehicle to authority to consent to the search of items belonging to all persons within the interior of the vehicle.

¶ 49. The majority's "mix and match" approach to Fourth Amendment doctrine ignores the fundamental differences between the automobile exception to the warrant requirement and consent searches. On the one hand, the automobile exception is premised on the notion that a certain quantum of evidence, i.e., probable cause, in conjunction with other considerations justifies the state's intrusion into an individual's sphere of privacy without a warrant. On the other hand, the power to conduct a consent search flows not from a governmental interest deriving from a level of suspicion that overrides an individual's privacy interests, but rather flows from the individuals themselves.

¶ 50. Courts examining the validity of a consent search are not concerned with expectations of privacy or competing state and individual interests. The relevant considerations are the voluntariness of the consent and the authority to grant consent. The court's decision today should simply be an inquiry into the latter.

¶ 51. Moreover, the concerns implicated under the automobile exception cannot be severed from probable cause. The Supreme Court explained the automobile exception in California v. Carney:

[T]he pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy [in an automobile], and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.

471 U.S. at 392 (emphasis added).

¶ 52. In the Fourth Amendment context, no governmental interests are relevant in the absence of probable cause (or in other contexts, reasonable suspicion). The governmental interest specific to the automobile exception is grounded in the risk that evidence or contraband for which probable cause exists will be driven away before a warrant can be obtained. Id. at 390. Logically, that governmental interest cannot exist in the absence of probable cause.

¶ 53. More importantly, by the very nature of a consent search, no governmental interests are implicated. The focus of a third-party consent search inquiry is not on the individual's relationship vis-a-vis the state, but on the individual's relationship to the property searched vis-a-vis the third party. The dispositive question is whether there is common authority to consent. No consideration of governmental interests arises in answering this question.

¶ 54. Similarly, a reduced expectation of privacy has no bearing in the consent search context. Again, the issue is the power to approve of the search of another's property. Implicit in the majority's holding is that one's expectation of privacy is inversely proportional to the authority of others to grant consent. I fail to see, and I am not told, how the two bear any relation to one another.

¶ 55. Rather than address these analytical inconsistencies, the majority concludes that because this case involves a search of an automobile the automobile exception principles are "highly relevant." However, in the absence of probable cause, none of these considerations is relevant and the automobile exception cases cited by the majority are wholly inapplicable.

¶ 56. Notably absent from the majority's discussion of its "hybrid" approach is any citation or analysis suggesting that the Supreme Court would sanction such an approach. Also missing from the majority opinion is a single citation to any other court that would support such an approach.

¶ 57. Applying principles sanctioned by the United States Supreme Court, there is no evidence in the record to suggest that Miller had any common authority over or any special relationship to Matejka's jacket. Nor is there anything to suggest that it was reasonable for Officer Forsythe to believe that Miller possessed such authority. In fact the evidence points to the contrary. Officer Forsythe knew the jackets that he was handing out belonged to the passengers and not to Miller himself.

¶ 58. Even if I were to accept the framework constructed by the majority in this case there are too many unanswered questions under the new automobile consent search exception to the warrant requirement. While it is suggested that an exception may exist for "private, personal property," we are given no answer as to why a jacket does not qualify for that exception.

¶ 59. An even larger question looms as to why it is incumbent upon the individual to speak up to curtail a driver's consent to search, even where the officer conducting the search is aware that the property belongs to a passenger. The majority puts the onus on the individual to confront the officer, rather than requiring the officer to carry the simple burden of requesting the consent of the passengers.

¶ 60. The majority's approach muddles Fourth Amendment principles and in the end allows an otherwise unreasonable search to be deemed reasonable. Employing an unprecedented and unconstitutional approach, the majority improperly expands a driver's authority to consent to the search of a passenger's personal property. Accordingly, I respectfully dissent.

¶ 61. I am authorized to state that SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE and WILLIAM A. BABLITCH, J. join this dissenting opinion.

       Wisconsin Stat. §341.15(1) (1995-96) directs that "[w]henever 2 registration plates are issued for a vehicle, one plate shall be attached to the front and one to the rear of the vehicle."

       The Fourth Amendment states:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      Article I, Section 11 of the Wisconsin Constitution is identical in substance to the Fourth Amendment and provides:
      The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to he seized.
      We traditionally follow the United States Supreme Court's interpretation of the Fourth Amendment in construing the search and seizure provision of the state constitution. State v. Palione, 2000 WI 77, ¶ 28, 236 Wis. 2d 162, 613 N.W.2d 568.

       Other jurisdictions that have addressed this question have gone both ways. Some courts have concluded that searches of passengers' property based upon the driver's consent are constitutional: United States v. Navarro, 169 F.3d 228 (5th Cir. 1999), cert. denied, 528 U.S. 845 (1999) (driver's consent extended to passenger's luggage in back seat; passenger aware of driver's consent to the search, but did not object to the search of luggage); United States v. Crain, 33 F.3d 480 (5th Cir. 1994), cert. denied, 513 U.S. 1169 (1995) (passenger's paper bag found under front seat; passenger aware that driver had given consent); United States v. Dunson, 940 F.2d 989 (6th Cir. 1991), cert. denied, 503 U.S. 941 (1992) (search of passenger's duffel bag in trunk); United States v. Anderson, 859 F.2d 1171 (3d Cir. 1988) (search of passenger's bags in trunk and under front seat; passenger aware of search); State v. Walton, 565 So. 2d 381 (Fla. Dist. Ct. App. 1990) (search of passenger's luggage in trunk); State v. Frizzel, 975 P.2d 1187 (Idaho Ct. App. 1999) (search of passenger's backpack in truck); State v. Rawls, 552 So. 2d 764 (La. Ct. App. 1989) (search of passenger's luggage in trunk). However, other courts have held such searches to be unconstitutional: United States v. Jaras, 86 F.3d 383 (5th Cir. 1996) (search of passenger's suitcases; consenting driver informed officer that suitcases were not his); United States v. Infante-Ruiz, 13 F.3d 498 (1st Cir. 1994) (search of passenger's briefcase found in trunk; consenting driver informed officer that briefcase belonged to passenger); United States v. Welch, 4 F.3d 761 (9th Cir. 1993) (search of passenger's purse in trunk); People v.

        James, 645 N.E.2d 195 (Ill. 1994) (search of passenger's purse in vehicle; passenger unaware that driver had consented to vehicle search); State v. Friedel, 714 N.E.2d 1231 (Ind. Ct. App. 1999) (search of passenger's purse located in backseat); State v. Caniglia, 510 N.W.2d 372 (Neb. Ct. App. 1993) (search of passenger's makeup bag found under passenger's seat); State v. Suazo, 627 A.2d 1074 (N.J. 1993) (search of passenger's bag removed from trunk; officer aware that bag belonged to passenger); State v. Williams, 616 P.2d 1178 (Or. Ct. App. 1980) (driver's consent did not extend to search of passenger's cassette tape case; driver unaware of passenger's possessions in the vehicle); State v. Zachodni, 466 N.W.2d 624 (S.D. 1991) (driver's consent to vehicle search did not extend to search of wife's purse located in passenger compartment).

       See Terry v. Ohio, 392 U.S. 1 (1968).

       The dissent is entirely correct about the distinctions between probable cause and consent searches. We have been careful to note that this was not a probable cause based search and therefore the automobile exception does not resolve the question of its legality. However, because the ultimate inquiry is the reasonableness of the search, the principles underlying the Supreme Court's automobile exception jurisprudence are certainly noteworthy and relevant. We do not agree that this constitutes an inappropriate "mix and match" approach that impermissibly "muddles" Fourth Amendment principles. Furthermore, contrary to the dissent's suggestion, we do not "disregard[ ] the established line of analysis for consent searches" or neglect to address the driver's common authority over items of passenger property left behind in the vehicle. Rather, these issues receive extensive treatment in ¶¶ 29-42, infra.

      Matejka's purse was searched after she was arrested.

      Because we conclude that the search of the jacket was lawful based upon the driver's consent to the search of the van, we do not address the State's alternative justifications for the search: that the scope of Matejka’s consent to the pat-down search of her person extended to her jacket left behind in the van, that Forsythe's search of Matejka's jacket was part of a lawful Terry frisk of Matejka, or that the search of the jacket was permissible as part of a Terry frisk of the van.

       I also conclude that the State's alternative arguments in support of the search fail to establish that the search was reasonable under the Fourth Amendment. The State's alternative arguments are premised upon a valid frisk of the jacket as part of a Terry search of the vehicle or Matejka or part of the consent pat-down of Matejka. Yet nothing in the record suggests that it was immediately apparent to Officer Forsythe that the contents of Matejka's jacket pocket was contraband. Therefore For-sythe's removal of the contents of the pocket exceeded the permissible bounds of a pat-down search under the plain feel doctrine of Minnesota v. Dickerson, 508 U.S. 366 (1993).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against M. Joanne Wolf, Attorney at Law. Office of Lawyer Regulation, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. M. Joanne Wolf, Respondent.
    Supreme Court

      No. 00-2918-D.

      Filed February 6, 2000.

    2001 WI 4
    (Also reported in 621 N.W.2d 624.)
   PER CURIAM.

¶ 1. We review the comprehensive stipulation filed by Attorney M. Joanne Wolf and the Office of Lawyer Regulation (OLR) pursuant to SCR 22.12. The stipulation sets forth findings of fact and conclusions of law concerning Attorney Wolfs professional misconduct including neglecting a case, making misrepresentations to both her client and the clerk of court's office, and altering a public document both fraudulently and criminally; all the stipulated misconduct occurred while Attorney Wolf was representing a client at the time when Attorney Wolf s law license remained under suspension for more than six years for her failure to pay bar dues. The parties also stipulated to a two-year suspension of Attorney Wolfs license to practice law as discipline for this misconduct.

¶ 2. We approve the stipulation and determine that the seriousness of Attorney Wolfs misconduct warrants the suspension of her license to practice law for two years.

¶ 3. Attorney Wolf was admitted to the practice of law in Wisconsin in 1980. She previously served as district attorney in Crawford county and she currently resides in Prairie du Chien. In 1991 this court imposed medical conditions on Attorney Wolf s license. Disciplinary Proceedings Against Wolf, 165 Wis. 2d 1, 476 N.W.2d 878 (1991). Attorney Wolf was thereafter suspended from the practice of law for nonpayment of bar dues, effective November 2, 1992, and has remained under suspension since that date.

¶ 4. The specific facts giving rise to this current disciplinary action reflect that Attorney Wolf was retained in July 1997 to represent a client in a divorce action. That client and her husband had been separated for many years and the husband's whereabouts were unknown. Attorney Wolf was told by the client that she planned to marry her fiance on May 16, 1998, and she said she wanted to be certain that her divorce would be completed quickly enough so that it would not interfere with those plans. Attorney Wolf informed the client that she could not remarry until six months after the effective date of the divorce, and thus, the divorce would need to be final by mid-November 1997.

¶ 5. Attorney Wolf subsequently informed her client that the final hearing in the divorce action had been scheduled for November of 1997; later, Attorney Wolf reported that the hearing date had to be postponed. When the client expressed concern about the mandatory six-month waiting period before remarrying, Attorney Wolf said she would get the final hearing rescheduled and would ask the judge to waive the six-month requirement. In fact, Attorney Wolf had not at that time filed the divorce petition and did not do so until March 31,1998.

¶ 6. On April 29, 1998, the circuit court granted Attorney Wolf s client a default divorce subject to submission of proof that the client's husband had been properly served with the divorce petition by publication. The judge reminded Attorney Wolfs client that she could not remarry until six months after the date of the divorce. When the client later expressed concern to Attorney Wolf about that warning, Attorney Wolf responded that she would have the judge backdate the divorce judgment.

¶ 7. On May 4, 1998, the client went to Attorney Wolf s office and requested and received a copy of the findings of fact, conclusions of law and judgment of divorce that Attorney Wolf had filed with the Crawford county clerk of court's office on that date. That document bore an incorrect case number and reflected that the divorce judgment had been granted on October 29, 1997. The document was imprinted with the stamp of the Crawford county clerk of court's office showing that it had been filed on May 4, 1998, and it appeared to have been signed by the judge on that same date.

¶ 8. Attorney Wolf assured her client that the document had been approved by the judge and that it would be sufficient for the client to obtain a marriage license. Attorney Wolf, however, also instructed her client to destroy the document after the marriage license had been issued; in addition Attorney Wolf told her client that she would soon receive in the mail, a certified copy of the divorce judgment with the correct date on it.

¶ 9. The circuit court judge had not, in fact, approved the use of the incorrect date on the divorce judgment Attorney Wolf had given her client.

¶ 10. On May 8, 1998, the client took the copy of the divorce judgment she had received from Attorney Wolf to the county clerk's office to apply for a marriage license. When the client, returned after the five-day waiting period to pick up the license, she was informed by the clerk that a marriage license could not be issued because the copy of the divorce judgment that had been submitted bore a date different from that on the divorce judgment on file in the clerk's office.

¶ 11. On that same day — now only two days from the planned wedding — the client told Attorney Wolf that the marriage license could not be issued because the six-month waiting period had not yet expired. Attorney Wolf reassured the client that Attorney Wolf would take care of the problem. The next morning, Attorney Wolf went to the Crawford county clerk of court's office and attempted to persuade a deputy clerk to sign a statement to the effect that a divorce judgment is granted on the date of the hearing and entered on the date of the filing. The deputy clerk of court declined to sign that statement.

¶ 12. Attorney Wolf then went to the office of the county clerk with the purported divorce judgment bearing the incorrect date and presented it to a deputy county clerk. When the deputy clerk noted that the dates did Pot correspond to the dates shown in the file in the clerk of court's office, Attorney Wolf represented that the divorce had, in fact, been granted on October 29, 1997; Attorney Wolf stated that she would straighten the matter out with the clerk of court's office. The deputy county clerk then issued the marriage license and gave it to Attorney Wolf who delivered it to her client.

¶ 13. Later that afternoon, as the client and her fiance were on the way to their wedding rehearsal, they were contacted by the police who informed them that the marriage license that had been issued was not valid. As a result, Attorney Wolf s client was unable to legally marry as she had planned on May 16, 1998, although the couple did participate in a non-binding ceremony and held the reception as planned.

¶ 14. Subsequently, Attorney Wolfs client discovered that as of May 16, 1998, there was no valid judgment of divorce because Attorney Wolf had not allowed for sufficient time between the date of publication and the date of the final hearing. Attorney Wolfs client later retained different counsel and then obtained a valid divorce. The client and her fiance were finally married in March of 2000.

¶ 15. Based on her actions in this divorce case, Attorney Wolf was convicted on June 16, 1999, on one count of altering a public record with intent to defraud, contrary to Wis. Stat. § 943.38(l)(b), a Class C felony. Sentence was withheld and she was placed on probation for four years conditioned upon performance of 250 hours of community service and the payment of restitution. A restitution order was subsequently entered requiring Attorney Wolf to make restitution in the amount of $4000 directly to her former client.

¶ 16. Based on these facts, the Board of Attorneys Professional Responsibility subsequently charged Attorney Wolf with five counts of professional misconduct:

• By providing legal representation when her law license was under suspension, respondent engaged in the practice of law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction, in violation of SCR 20:5.5(a).
• By failing between July 1997 and March 1998 to file her client's petition for divorce, respondent failed to act with reasonable diligence in representing her client, in violation of SCR 20:1.3.
• By telling her client that a final hearing in the divorce action had been scheduled for November 1997 when respondent had not filed the divorce petition as of that date, and in subsequently misrepresenting to the client that respondent had arranged with the circuit court judge for a waiver of the mandatory six-month waiting period for remarriage, respondent engaged in conduct involving dishonesty, deceit and misrepresentation, contrary to SCR 20:8.4(c).
• By fraudulently altering a public document contrary to Wis. Stat. § 943.38(l)(b), a Class C felony, respondent committed a criminal act that reflects adversely on her honesty and trustworthiness, contrary to SCR 20:8.4(b).
• By representing to the Crawford county clerk's office that the divorce judgment she had fabricated was a genuine document, respondent engaged in conduct involving dishonesty, deceit and misrepresentation, contrary to SCR 20:8.4(c).

¶ 17. The Board of Attorneys Professional Responsibility voted to seek a two-year suspension of Attorney Wolfs law license for these violations. The OLR subsequently filed this action and now states that this proffered stipulation reflects the (former) Board's, the OLR's and Attorney Wolfs desired result in this matter. The parties ask this court therefore to approve this stipulation, adopt the stipulated facts and conclusions of law, and order a two-year suspension of Ms. Wolfs license to practice law in Wisconsin.

¶ 18. We adopt the findings of fact and conclusions of law set forth in the parties' stipulation. Attorney Wolfs serious misconduct warrants a suspension of her license. The stipulated two-year suspension is consistent with that ordered in Disciplinary Proceed ings Against Des Jardins, 163 Wis. 2d 969, 472 N.W.2d 925 (1991), a case, like this, where an attorney had altered a court document for the purpose of obtaining a benefit for his client. We believe that under all the circumstances of this case, a two-year suspension of Attorney Wolf s license to practice law in this state is an appropriate disciplinary response to impress on her and members of the bar the seriousness of fabricating a court document to gain an improper benefit for a client.

¶ 19. It Is Ordered that the license of M. Joanne Wolf to practice law in Wisconsin is suspended for a period of two years effective as of the date of this order.

¶ 20. It Is Further Ordered that M. Joanne Wolf comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process was substantially restructured. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed from the Board of Attorneys Professional Responsibility to the Office of Lawyer Regulation (OLR) and the Supreme Court rules applicable to the lawyer regulation system were also revised in part. Although the conduct underlying this case occurred prior to October 1,2000, the parties' stipulation was filed after that date pursuant to newly enacted SCR 22.12 which provides, in part:
      SCR 22.12 Stipulation.
      (1) The director may file with the complaint a stipulation of the director [of OLR] and the respondent to the facts, conclusions of law regarding misconduct, and discipline to be imposed. The supreme court may consider the complaint and stipulation without the appointment of a referee.
      All references to Supreme Court rules in this opinion will be to those now in effect since October 1, 2000, except as specifically noted.

       SCR 20:5.5(a) provides:
      A lawyer shall not:
      (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.

       SCR 20:1.3 provides:
      Diligence
      A lawyer shall act with reasonable diligence and promptness in representing a client.

       SCR 20:8.4(c) provides:
      It is professional misconduct for a lawyer to:
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

       SCR 20:8.4(b) provides:
      It is professional misconduct for a lawyer to:
      (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.

       The parties assert that this stipulation was not the result of a plea agreement and reflects neither a reduction of the charge, nor a reduction of the level of discipline originally sought by the Board of Attorneys Professional Responsibility and which the OLR continues to seek in this matter. Furthermore, as the parties request and stipulate, we do not appoint a referee in this matter. SCR 22.12(1).


author: PER CURIAM,

text:
    STATE of Wisconsin, Plaintiff-Respondent, v. David M. Hahn, Defendant-Appellant.

    Supreme Court

      No. 99-0554-CR.

      Filed February 9, 2001.

    2001 WI 6
    (Also reported in 621 N.W.2d 902.)

      See original opinion published in 238 Wis. 2d 889.

   PER CURIAM,

¶ 1. (on motion for reconsideration). The State of Wisconsin, plaintiff-respondent, moves the court to reconsider the following sentence in paragraph 28 of its opinion in State v. Hahn, 2000 WI 118, 238 Wis. 2d 889, 618 N.W.2d 528: "If the offender has no means available under state law or is unsuccessful in challenging the prior conviction, the offender may nevertheless seek to reopen the enhanced sentence." The State contends this sentence raises the question of what justification would exist for the defendant to seek to reopen the enhanced sentence if the defendant had unsuccessfully challenged the prior conviction.

¶ 2. To clarify the original Hahn opinion, we now modify the sentence quoted above to read as follows:

If the offender has no means available under state law to challenge the prior conviction on the merits, because, for example, the courts never reached the merits of this challenge under State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), or the offender is no longer in custody on the prior conviction, the offender may nevertheless seek to reopen the enhanced sentence.

¶ 3. The motion for reconsideration is denied without costs.


author: JON P. WILCOX, J.

text:
    Joan LaRock, Petitioner-Appellant-Petitioner, v. Wisconsin Department of Revenue, Defendant-Respondent.
    Supreme Court

      No. 99-0951.

      Oral argument October 31, 2000.

    Decided February 13, 2001.

    2001 WI 7
    (Also reported in 621 N.W.2d 907.)

      For the petitioner-appellant-petitioner there was a brief by Gerald L. Hill, Jennifer L. Nutt Carleton and Oneida Law Office, Oneida, and oral argument by Gerald L. Hill and Jennifer Nutt Carleton.

    For the defendant-respondent the cause was argued by F. Thomas Creeron, III, assistant attorney general, with whom on the brief (in the court of appeals) was James E. Doyle, attorney general.
    An amicus curiae brief was filed by Brian L. Pier-son, Donald E. Laverdure and von Briesen, Purtell & Roper, S.C., Milwaukee, and Sheila D. Corbine and Ho-Chunk Nation Department of Justice, Black River Falls, on behalf of the Oneida Indian Tribe of Wisconsin and Ho-Chunk Nation.
    An amicus curiae brief was filed by Gregory B. Conway, Jeffrey S. Dunn and. Liebman, Conway, Olejniczak & Jerry, S.C., Green Bay, and Sheldon E. Hochberg, John J. Duffy, Hilda A. Manuel and Steptoe

      & Johnson, LLP, Washington, D.C., on behalf of the Menominee Indian Tribe of Wisconsin.
    An amicus curiae brief was filed by Larry B. Leventhal and Leventhal & Associates, Minneapolis, MN, and Glenn C. Reynolds and Reynolds & Associates, Madison, on behalf of the Lac Courte Oreilles Band of the Lake Superior Chippewa Indians and the Sokaogon Chippewa Community.
   JON P. WILCOX, J.

¶1. The question presented in this case is whether an enrolled member of the Menominee Tribe, Joan LaRock (LaRock), is exempt from Wisconsin's income tax while living and working on the Oneida Reservation. Because LaRock is a member of the Menominee Tribe rather than the Oneida Tribe, we conclude that principles of tribal sovereignty do not bar the State from taxing her income earned on the Oneida Reservation.

¶ 2. The Department of Revenue (DOR) sent notice to LaRock in 1996 that she owed $588.00 plus interest for income she earned in 1994 and 1995. LaRock appealed the DOR's finding to the Wisconsin Tax Appeals Commission (Commission) on the ground that she is an "Indian" living in "Indian country." Therefore, LaRock contended, she is exempt from state income tax under the United States Supreme Court holding in McClanahan v. State Tax Comm'n of Arizona, 411 U.S. 164 (1973), which exempted an enrolled member of the Navajo Tribe living and working on the Navajo Reservation from Arizona's income tax. Id. at 181. The Commission rejected LaRock's argument and ruled that because she is not an enrolled member of the Oneida Tribe, she is not exempt from Wisconsin's income tax. The Circuit Court for Brown County, Don-aid R. Zuidmulder, Judge, subsequently affirmed the Commission's order. The court of appeals then affirmed the holding of the circuit court.

I

¶ 3. The facts are undisputed for the purposes of this review. LaRock is an enrolled member of the Menominee Tribe. She married an enrolled member of the Oneida Tribe, with whom she had four children, all enrolled members of the Oneida Tribe. She subsequently divorced in 1993. For the taxable years 1994 and 1995, LaRock resided on the Oneida Reservation and worked for Oneida Bingo and Casino, which is also on the Oneida Reservation. The Oneida Bingo and Casino is wholly owned and operated by the Oneida Tribe. In 1994 and 1995, LaRock deducted her federal adjusted gross income from the state income tax based on her American Indian status. The DOR disallowed her deduction because she was not living and working on Menominee tribal lands. LaRock appealed the DOR’s finding to the Commission.

¶ 4. Granting the DOR's motion for summary judgment, the Commission found "no Act of Congress, no treaty, no state statute or state agreement with any tribe that impairs Wisconsin's right to impose an income tax on enrolled members of a federally-recognized Indian tribe who live and work on the reservation of another tribe in Wisconsin." LaRock v. Wisconsin Dep't of Revenue, Wisconsin Tax Appeals Commission, No. 96-1-539, 15 (May 11,1998). LaRock appealed and the circuit court affirmed the Commission's ruling, explaining that "since [LaRock] is not a member of the Oneida Nations, she enjoys no protected status that would allow her to claim immunity from the duty she owes as a citizen of the State of Wisconsin to pay income taxes." LaRock then appealed the circuit court's ruling.

¶ 5. The court of appeals reviewed the treaties and federal statutes and asserted that those laws did not preempt state income tax jurisdiction in this instance. LaRock v. Wisconsin Dep't of Revenue, 2000 WI App 24, ¶ 9, 232 Wis. 2d 474, 606 N.W.2d 580 (Ct. App. 1999). The court then addressed McClanahan and the Supreme Court's use of the term "reservation Indian" therein. Id. at 484. The court reasoned that although the Supreme Court never defined that term, its ensuing opinions in Washington v. Confederated Tribes of Colville, 447 U.S. 134 (1980), and Duro v. Reina, 495 U.S. 676 (1990), distinguished between tribal members and nonmembers. Id. at 484-88. Thus, echoing the Commission, the court of appeals concluded that "no act of Congress, treaty, state statute or agreement with any tribe impairs Wisconsin's right to impose an income tax on enrolled members of a federally recognized Indian tribe that live and work on a reservation of another tribe." Id. at 494.

¶ 6. LaRock then petitioned this court for review. On April 28, 2000, we granted LaRock's petition.

I — I I — 1

¶ 7. The present case entails applying the law to undisputed facts. See Anderson v. Wisconsin Dep't of Revenue, 169 Wis. 2d 255, 262, 484 N.W.2d 914 (1992). Because this case presents a question of law, we are not bound by the Commission's conclusions. Id. Although the DOR asserts that the Commission has prior experience and has acquired general expertise in the area of Indian taxation, de novo review is appropriate because there is no evidence that the agency used any special knowledge or expertise. Id.

¶ 8. Before applying the law to the facts of this case, it is necessary to consider the Indian sovereignty doctrine, which, as the United States Supreme Court has noted, "provides a backdrop against which the applicable treaties and federal statutes must be read." McClanahan, 411 U.S. at 172. First set forth by Chief Justice Marshall, the underlying principle of American Indian law is that Indian tribes are sovereign political entities. See Worcester v. Georgia, 31 U.S. 515 (6 Pet.) (1832). The United States Supreme Court has long recognized tribal rights and powers that are the accoutrements of sovereignty. See, e.g., United States v. Winans, 198 U.S. 371 (1905) (acknowledging fishing rights of Yakima Indians secured in 1859 treaty); Winters v. United States, 207 U.S. 564 (1908) (affirming rights of Gros Ventre and Assiniboing tribes to water from the Milk River); Menominee Tribe v. United States, 391 U.S. 404 (1968) (observing that tribal hunting and fishing rights from 1854 treaty survived Termination Act of 1954); United States v. Wheeler, 435 U.S. 313 (1978) (holding that Navajo Tribe has sovereign power to punish tribal member for committing a crime on the Navajo Indian Reservation in Arizona); Red Bird v. United States, 203 U.S. 76 (1906) (recognizing that the Cherokee Nation has the power to determine who is a member). We recently emphasized the enduring vitality of tribal sovereignty in Teague v. Bad River Band of the Lake Superior Tribe of Chippewa Indians, 2000 WI 79, ¶ 23, 236 Wis. 2d 384, 612 N.W.2d 709. Over the years, however, Indian tribes have seen their sovereignty tempered because "Congress has to a substantial degree opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall." Organized Village of Kake v. Egan, 369 U.S. 60, 74 (1962). The source of congressional power to do so "derives from federal responsibility for regulating commerce with Indian tribes and for treaty making." McClanahan, 411 U.S. at 172 n.7 (citations omitted). Consequently, the notion of the "tribe," grounded in our federal constitution, is the essential political unit in American Indian law. See U.S. Const. art. I, § 8, cl. 3; art. II, § 2, cl. 2. Moreover, federal legislation over the past century has sought in some instances to encourage tribal coherence. Congress can pass legislation based on tribal status without running afoul of the equal protection clause because a "tribe" is a political rather than racial classification. See Morton v. Mancari, 417 U.S. 535, 554 (1974) (holding that a BIA hiring preference is not a "racial preference" because it is "granted to Indians not as a discrete racial group, but, rather, as member of quasi-sovereign tribal entities ..."). Thus, it is against this backdrop of tribal sovereignty that we examine the power of Wisconsin to tax the income of LaRock.

¶ 9. Wisconsin requires that "[flor the purpose of raising revenue for the state and the counties, cities, villages and towns, there shall be assessed, levied, collected and paid a tax on all net incomes of individuals. . .by every natural person residing within the state." Wis. Stat. § 71.02 (1993-94). The United States Supreme Court has observed that "[e]njoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable from the responsibility for sharing the costs of government." Lawrence v. State Tax Comm'n, 286 U.S. 276, 279 (1932). Relying on the Supreme Court's McClanahan decision, however, LaRock contends that she is exempted from the statutory obligation to pay state income tax. Accordingly, we begin our analysis of her argument by reviewing the Supreme Court's McClanahan decision.

¶ 10. McClanahan is widely regarded as the seminal case in the area of American Indian income taxation. There, the Court was required "to reconcile the plenary power of the States over residents within their borders with the semi-autonomous status of Indians living on tribal reservations." McClanahan, 411 U.S. at 165. In McClanahan, an enrolled member of the Navajo tribe, living and earning her income on the Navajo reservation in Arizona, requested a refund for all of the money withheld from her wages to cover her state income tax liability. Id. at 165-66. The Court noted that "this case involves the narrow question whether the State may tax a reservation Indian for income earned exclusively on the reservation." Id. at 168. After surveying the development of American Indian law over the last two hundred years, the Court set forth the touchstone of recent cases: "[t]he modern cases thus tend to avoid reliance on platonic notions of Indian sovereignty and to look instead to the applicable treaties and statutes which define the limits of state power." Id. at 172. The Court then observed that in light of the 1868 treaty between the Navajo Nation and the United States Government, "it cannot be doubted that the reservation of certain lands for the exclusive use and occupancy of the Navajos and the exclusion of non-Navajos from the prescribed area was meant to establish the lands as within the exclusive sovereignty of the Navajos under general federal supervision." Id. at 174-75. The Court further noted that "since the signing of the Navajo treaty, Congress has consistently acted upon the assumption that the State lacked jurisdiction over Navajos living on the reservation." Id. at 175. Based on this two-fold analysis, the Court concluded that Arizona did not have jurisdiction to impose a tax on the income of a Navajo living on a Navajo reservation. Id. at 181. McClanahan, therefore, stands for the proposition that a state may not impose an income tax upon tribal members living and working on their own tribal lands.

¶ 11. Since McClanahan, the Supreme Court has further delineated the fundamental principles of tribal sovereignty and the mode of analysis for lower courts to utilize when tribal sovereignty is invoked. See Colville, 447 U.S. 134 (distinguishing between nonmember Indians on the lands of another tribe and tribal members on their own lands in the state taxation context); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980) (setting forth the inquiry to determine whether a state can regulate tribal activity on tribal lands); Duro, 495 U.S. 676 (distinguishing between nonmember Indians on the lands of another tribe and tribal members on their own lands in the criminal jurisdiction context); Oklahoma Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993) (characterizing McClana-han as a case "in which the Court held that a State could not subject a tribal member living on the reservation, and whose income derived from reservation sources, to a state income tax absent an express authorization from Congress"). We glean two tenets from these post -McClanahan cases that are relevant to the present facts: (1) there is a distinction between nonmember Indians on the lands of another tribe and tribal members living on their own tribal lands; and (2) state authority may be asserted over American Indians on all tribal lands where the exercise of such authority does not conflict with federal law or treaties and it does not unlawfully infringe on the right of reservation Indians to make their own laws and be ruled by them.

HH HH I — !

¶ 12. The first post -McClanahan Supreme Court case that explicitly marked the distinction between nonmember Indians living on the lands of another tribe and tribal members living on their own tribal lands was Washington v. Confederated Tribes of Colville, 447 U.S. 134 (1980). There, the Court confronted the issue of whether the State of Washington could impose sales and use taxes upon American Indians on the reservation of another tribe. The Court, noting that it was apparent after "McClanahan that the sales tax could not be applied to similar purchases by tribal members," reasoned that "[flederal statutes, even given the broadest reading to which they are reasonably suscep-tibie, cannot be said to pre-empt Washington's power to impose its taxes on Indians not members of the Tribe." Id. at 160. Further tracing the distinction between nonmember Indians on the lands of another tribe and tribal members on their own lands, the Court addressed the issue of tribal sovereignty:

Nor would the imposition of Washington's tax on these purchasers contravene the principle of tribal self-government, for the simple reason that nonmembers are not constituents of the governing Tribe. For most practical purposes those [nonmember resident] Indians stand on the same footing as non-Indians resident on the reservation. There is no evidence that nonmembers have a say in tribal affairs or significantly share in tribal disbursements. We find, therefore, that the State's interest in taxing these purchasers outweighs any tribal interest that may exist in preventing the State from imposing its taxes.

Id. at 161. The Court, therefore, in the context of state taxation, highlighted the demarcation between nonmember Indians who are on the lands of another tribe and tribal members on their own tribal lands.

¶ 13. LaRock, however, attempts to obscure the line between nonmember Indians on the lands of another tribe and tribal members on their own tribal lands, arguing that Colville involved the taxation of goods and is so confined to its facts. While Colville did involve sales and use taxes rather than an income tax, this is a distinction without a difference. The central issue in Colville was whether the state had the power to tax a nonmember Indian on another tribe's lands; the nature of the tax was immaterial. Thereby the Supreme Court established a bright-line test for determining whether an individual may participate in the accoutrements of sovereignty when he or she is on tribal lands: whether the individual is an enrolled member of that tribe.

¶ 14. This interpretation of Colville is in accord with other jurisdictions. Prior to Colville, several jurisdictions did hold that McClanahan exempted all American Indians on any tribal lands from state taxation. See Fox v. Bureau of Revenue, 531 P.2d 1234, 1234-35 (N.M. Ct. App. 1975); LaRoque v. Montana, 583 P.2d 1059, 1063 (Mont. 1978); and Topash v. Commissioner of Revenue, 291 N.W.2d 679, 680-81 (Minn. 1980). However, after the Court handed down Colville, Fox was explicitly overruled by New Mexico Taxation and Revenue Dep't v. L.R. Greaves, 864 P.2d 324, 325 (N.M. Ct. App. 1993); LaRoque was rendered invalid by the passage of Mont. Admin. Reg. § 42.15.121(1); and most recently, Topash was abrogated by Minnesota v. R.M.H., 617 N.W.2d 55, 64 (Minn. 2000). Thus, New Mexico, Montana, and Minnesota have all revisited this same issue in light of Colville and recognized the distinction between a nonmember Indian on the lands of another tribe and tribal members on their own lands. Moreover, Arizona applied Colville to find the same distinction in State ex rel. Arizona Dep't of Revenue v. Dillion, 826 P.2d 1186, 1191 (Ariz. Ct. App. 1991). Indeed, the only jurisdictions that provide nonmember Indians on the lands of another tribe with the same McClanahan tax-exempt status as tribal members on their own tribal lands are those such as Oregon and Idaho, which have statutes granting an income tax exemption for all American Indians on Indian lands within their borders, or North Dakota, which has not confronted the issue since Colville. See Or. Rev. Stat. §316.777 (1999); Idaho Code § 63-3026A(4)(b)(iv) (2000); White Eagle v. Dorgan, 209 N.W.2d 621 (N.D. 1973). Consequently, we do not accept the argument that Colville is confined to the subject of state sales and use taxes; instead, we regard it as a watershed case that further clarifies the general principles set forth in McClanahan.

¶ 15. The fact that the Supreme Court declined to confine the distinction between nonmember Indians and tribal members to state sales and use tax cases is apparent from the second case where the same distinction was raised, albeit in a different context. In Duro v. Reina, 495 U.S. 676, 679 (1990), the Supreme Court considered whether the Salt River Pima-Maricopa Indian Community — a recognized Tribe with an enrolled membership — had criminal jurisdiction over Albert Duro, an enrolled member of the Torres-Mari-copa Band of the Cahuilla Mission Indians, where he allegedly shot and killed a fourteen-year-old boy within the Salt River Reservation. Analyzing the power of the Pima-Maricopa Tribe to prosecute Duro, the Court reasoned that "the retained sovereignty of the tribes is that needed to control their own internal relations, and to preserve their own unique customs and social order." Id. at 685-86. But this retained sovereignty was not implicated in the case of a nonmember Indian — who could not participate in the tribal government — committing a crime on another tribe's lands. Id. at 688. In so deciding, the Court again addressed the issue at hand:

The distinction between members and nonmembers and its relation to self-governance is recognized in other areas of Indian law. Exemption from state taxation for residents of a reservation, for example, is determined by tribal membership, not by reference to Indians as a general class. We have held that States may not impose certain taxes on transactions of tribal members on the reservation because this would interfere with internal governance and self-determination. But this rational does not apply to taxation of nonmembers, even where they are Indians.

Id. at 686-87 (citation omitted). Therefore, the Court reasserted the holding of Colville in determining that the sovereignty retained by Indian tribes does not include criminal jurisdiction over nonmember Indians, although it does include, of course, criminal jurisdiction over tribal members on their own tribal lands. Id. at 694.

¶ 16. However, the Pima-Maricopa Tribe raised the concern that if the Court did not grant it criminal jurisdiction over nonmember Indians on its tribal lands, "the tribes will lack important power to preserve order on the reservation, and nonmember Indians will be able to violate the law with impunity." Id. at 696. The Court responded to the Pima-Maricopa's concern by asserting that "[i]f the present jurisdictional scheme proves insufficient to meet the practical needs of reservation law enforcement, then the proper body to address the problem is Congress, which has the ultimate authority over Indian affairs." Id. at 698. Congress responded to the Court's invitation by passing the "Duro fix," which granted tribes criminal jurisdiction over nonmember Indians on tribal lands. 25 U.S.C. § 1301(2) (2000).

¶ 17. LaRock, by looking to committee reports and legislative history, argues that the "Duro fix" not only overturned the United States Supreme Court's decision in Duro, but mandated that a state has no inherent jurisdiction over nonmember Indians within Indian country. LaRock's argument fails for three reasons. First, Congress did precisely what the Supreme Court invited it to do in Duro; there was no question that Congress was within its authority in passing such legislation. Although Congress granted "Indian tribes" jurisdiction over Indians committing a crime on their tribal lands, it does not follow that Congress eliminated the distinction between Indian tribes. 25 U.S.C. § 1301(2). To the contrary, if Congress intended to erase this distinction, it could have done so explicitly in the legislation. Second, Congress has not acted to overturn Colville, which unlike Duro, is within the context of the present case — state taxation. Of course, the Wisconsin Legislature could act to grant such an exemption, but so far has refrained from doing so, in contrast to the state legislatures in Oregon and Idaho. Finally, the Supreme Court, while indicating that it was cognizant of the "Duro fix," repeated the rule of its "pathmaking case" of Montana v. United States, 450 U.S. 544, 564 (1981), which defined the limits of tribal sovereignty:

'Indian tribes retain their inherent power [to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members. . .but [a tribe's inherent power does not reach] beyond what is necessary to protect tribal self-government or to control internal relations.'

Strate v. A-1 Contractors, 520 U.S. 438, 446 n.5, 459 (1997) (bracketed material in the original). The Court, as evidenced by this recent reiteration of the Montana rule in a case fourteen years after the "Duro fix," has held since McClanahan that membership in a tribe, not ethnic status as an American Indian, is the integral fact that brings inherent tribal sovereignty into play. Thus, the distinction between nonmember Indians on the lands of another tribe and tribal members on their own lands — as stressed in Colville and reasserted in Duro — remains valid.

IV

¶ 18. The fact that neither Congress nor the Wisconsin Legislature has acted to grant the exemption indicates that the State is not preempted from taxing LaRoek. The applicable analysis was set forth in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), which followed Colville and confronted the issue present here: whether the state has jurisdiction to regulate and tax activity occurring on tribal lands. The threshold question is whether the exercise of state authority is pre-empted by federal law. Id. at 142. The second question is whether state authority "infringe[s] 'on the right of reservation Indians to make their own laws and be ruled by them.'" Id.

A

¶ 19. As for the first inquiry, LaRock asserts that "the Treaties that established the Oneida Reservation preclude the extension of State income tax law to Indians on the Oneida Reservation." An examination of the treaties between the Oneida Tribe and the United States does not support her conclusion. LaRock has referred us to an 1831 treaty between the United States and the Menominee Tribe, an 1838 treaty between the United States and the Oneida Tribe, as well as an 1822 treaty between the United States, the Menominee Tribe, and the Oneida Tribe. See Treaty of February 8, 1831, between the Menominee Tribe and the United States; Treaty of February 3,1838, between the Onieda Tribe and the United States; Treaty of September 23, 1822, between Oneida, Stockbridge, Tuscaroara, St. Regis, Munusee and Menominee Tribes of Indians. In none of the treaties to which LaRock has referred us is taxation mentioned. Nor do they imply that a nonmember is exempt from state taxation while on another tribe's lands. Therefore, they do not provide a basis to preempt Wis. Stat. § 71.02.

¶ 20. LaRock further suggests that a "sister-Tribe relationship" exists between the Menominee Tribe and the Oneida Tribe as evidenced by "Treaties in 1821 and 1822" between the two tribes. According to the 1822 Treaty, which is the only treaty between the Menominee Tribe and the Oneida Tribe that LaRock has cited, the Menominee Tribe ceded some tribal lands to the Oneida Tribe and retained some limited rights to enjoy the ceded lands, but the treaty does not create dual-sovereignty over their respective lands. See Treaty of September 23, 1822, between Oneida, Stock-bridge, Tuscaroara, St. Regis, Munusee and Menominee Tribes of Indians. It is undisputed that LaRock is an enrolled member of the Menominee Tribe, living and working on Oneida lands. LaRock does not assert that she has any more voice in Oneida tribal affairs than a non-Indian or that this "sister-relationship" between the two tribes gives her any voice in Oneida tribal affairs. Indeed, at oral argument, counsel for LaRock admitted that the cessation of Menominee land to the Oneida Tribe only indicates that the Menominee Tribe has a relationship with the Oneida Tribe. The tribes do not grant dual-memberships.

¶ 21. LaRock next contends that the definition of "Indian country" in 18 U.S.C. § 1151 — when read in conjunction with McClanahan — supports the proposition that Wis. Stat. § 71.02 has been preempted by federal law, thereby preventing the State from taxing her income. LaRock maintains that "[i]t is the creation and oversight of Indian country that the Federal government preempts the State's ability to tax Indian tribes and individuals.” We reject her argument. The language of 18 U.S.C. § 1151, within the Indian Crimes Act, defines "Indian country" as:

[T]he term 'Indian country' as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Drafted in 1948, the nomenclature "Indian country," although it has been used in a civil context, refers to the various types of Indian lands for the purposes of the Indian Crimes Act. The need for such a nomenclature is apparent when the various forms of Indian lands, created by the dramatic reversals in federal Indian policy over the years, are considered. See Egan, 369 U.S. at 72-74 (tracing the history of the discombobulated federal Indian policy, which includes the establishment of allotments, dependent communities and other forms of Indian lands). Therefore, when Congress decided to pass criminal legislation for all Indian lands, it chose the term "Indian country" and included within the definition the various forms of Indian lands in the United States. Such a definition, however, does not preempt the State either explicitly or implicitly from taxing the income of a nonmember American Indian residing on the lands of another tribe. When read with the aforementioned Supreme Court caselaw, it is clear that the Supreme Court — in Colville and again in Duro — drew a distinction between nonmembers on the lands of another tribe and tribal members on their own tribal lands. LaRock has not cited any other federal law as having preempted the State from imposing income tax in such a situation. And we find no federal law — including treaties, statutory provisions, and caselaw — that preempts the State from imposing an income tax on a nonmember Indian living on another tribe's lands.

B

¶ 22. The second area of inquiry is whether State authority will infringe upon the right of reservation Indians to make their own laws and be ruled by them. Bracker, 448 U.S. at 142. This inquiry is targeted at whether the tribe's sovereignty is restricted by the imposition of the tax. Therefore, we must begin by ascertaining the meaning of the term "reservation Indian." In McClanahan, the Supreme Court employed the term "reservation Indian" in order to distinguish those facts from its holding in Egan, 369 U.S. 60, which "came in the context of a decision concerning the fishing rights of nonreservation Indians." McClanahan, 411 U.S. at 176 n.15. LaRock, however, turns to this court's definition of a "reservation Indian" in Anderson, where we said that "the term 'reservation Indian' refers to an Indian living on the reservation.” 169 Wis. 2d at 276. This definition, LaRock argues, encompasses her because she "is an Indian that lives on a Reservation, the Oneida Reservation." In Anderson, however, we were referring to the specific reservation of the particular tribe in which Anderson was enrolled: the Lac Courte Oreilles Band of the Lake Superior Chippewa Indians. Id. at 276, 260. LaRock attempts to stretch this definition to include all Indian reservations, a proposition for which she provides no authority. Inasmuch as LaRock is not an enrolled member of the Oneida Tribe living on the Oneida Reservation, she is not a "reservation Indian" as that term is used in United States Supreme Court precedent or in our Anderson decision.

¶ 23. It is because LaRock is not an enrolled member of the Oneida Tribe that the tribal sovereignty of the Oneidas is not implicated. The fact is that LaRock — who is an enrolled member of the Menonminee Tribe — has no voice in the affairs of the Oneida Tribe as she may in the affairs of the Menominee Tribe. Nor does she have an expectation of having a voice in Onieda Tribal affairs as her children, who are enrolled members of the Oneida Tribe, may have. She merely asserts that she is an "Indian" residing in "Indian country" and therefore is exempt from the State's income tax. While it is undisputed that she is an American Indian, her ethnicity does not confer upon her any more rights or privileges within the Oneida Tribe than a non-Indian has within the Oneida Tribe. Therefore, we do not find that the State is preempted from imposing an income tax on LaRock.

V

¶ 24. In conclusion, we hold that the State is not barred by principles of tribal sovereignty from taxing LaRock's income because, although she is an enrolled member of the Menominee Tribe, she is not an enrolled member of the Oneida Tribe. We therefore affirm the decision of the court of appeals.

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

¶ 25. DAVID T. PROSSER, J., did not participate.

        See Indian Reorganization Act of 1934, 25 U.S.C. §§ 461-479 (2000). Pursuant to 25 U.S.C. § 476, "[a]ny Indian tribe shall have the right to organize for its common welfare . . . ." Therefore, the Indian Reorganization Act of 1934 fosters self-government and sets forth a mechanism for federal recognition, which establishes the quasi-sovereign status of each tribe under federal law. See 25 U.S.C. §§ 476-479.

       The term "tribe," as used in this opinion, refers to one of the 556 federally recognized Indian tribes, each of which are distinct political units. Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs, 65 Fed. Reg. 13298-01 (Mar. 13, 2000). This list indicates that the Menominee Indian Tribe of Wisconsin is a political unit distinct from the Oneida Tribe of Wisconsin, which is in turn distinct from the Oneida Nation of New York. Id. It is, of course, undisputed in this case that the Menominee Indian Tribe of Wisconsin is distinct from the Oneida Tribe of Wisconsin. However, at oral arguments, counsel for LaRock noted that there are six "bands of Chippewa" in Wisconsin and questioned whether the six "bands" would be considered one tribe. The Bureau of Indian Affairs' list indicates that several Indian "bands" are distinct political units; therefore, they are separate federally recognized Indian tribes. Id. For example, the Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin is a federally recognized tribe distinct from the Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin. Id.

       All subsequent references to the Wisconsin Statutes are to the 1993-94 version unless otherwise indicated.

       See, e.g., Sandra Hansen, Survey of Civil Jurisdiction in Indian Country 1990, 16 Am. Indian L. Rev. 356, 358 (1991) (referring to McClanahan as a "landmark decision").

       This second tenet is the analysis set forth in White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980), which confronted the question of whether Arizona (a Public Law 280 state for limited purposes) had the power to impose a motor carrier license and use taxes on a logging company for its logging and hauling operations performed solely on the Fort Apache Reservation. We note that Wisconsin is a Public Law 280 state and this same analysis might not apply to non-Public Law 280 states. Public Law 280 is primarily a grant of state criminal jurisdiction over offenses committed by or against Indians on the reservations to six states, including Wisconsin, and other states at their option. See Bryan v. Itasca County, 426 U.S. 373, 379-87 (1976). In Bryan, the Supreme Court ruled that the grant of civil jurisdiction in Public Law 280 did not grant Minnesota the power to tax "reservation Indians" in contrast to McClanahan v. State Tax Comm'n of Arizona, 411 U.S. 164 (1973). Id. at 390. However, neither the Supreme Court's ruling in Bryan nor Public Law 280 prohibit a state from taxing non-reservation Indians. See ¶ 23.

       LaRoek urges this court to employ the "categorical approach" outlined in the United States Supreme Court decision County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251, 258 (1992). This approach is that" 'absent cession of jurisdiction or other federal statutes permitting it,' we have held, a State is without power to tax reservation lands and reservation Indians." Id. (citation omitted). However, this "categorical approach" is only utilized "when a State attempts to levy a tax directly on an Indian tribe or its members inside Indian country, rather than on non-Indians . . . ." Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, 458 (1995) (emphasis added). LaRoek is not a member of the Oneida tribe; therefore, the categorical analysis would be inappropriate. This is in accord with the Supreme Court's conclusion that nonmember Indians resident on another tribe's lands have the same status as non-Indians resident on tribal lands in Washington v. Confederated Tribes of Colville, 447 U.S. 134, 161 (1980). As noted above, there the Court discussed whether the imposition of a tax on a nonmember Indian on another tribe's lands "contravene[s] the principle of tribal self-government." Id. The Court concluded that the tax would not do so because "non-members are not constituents of the governing Tribe. For most practical purposes those Indians stand on the same footing as non-Indians resident on the reservation." Id.

         See Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 123 (1993).