Burgess, Steven J. v. Watters, Steve

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1663

STEVEN J. BURGESS,

Petitioner-Appellant,

v.

STEVEN WATTERS,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 04-C-544—Barbara B. Crabb, Chief Judge.

____________

ARGUED SEPTEMBER 19, 2005—DECIDED NOVEMBER 2, 2006

____________

Before RIPPLE, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. Steven J. Burgess was involun-

tarily committed to a Wisconsin state mental health facility

after a jury found that he was a sexually violent person as

defined in Wisconsin’s Sexually Violent Person Commit-

ment Statutes, Wis. Stat. § 980 et seq. (chapter 980). Both

the Wisconsin Court of Appeals and the Supreme Court of

Wisconsin affirmed the judgment ordering his commitment.

After exhausting his state court remedies, he filed a petition

for a writ of habeas corpus in the United States District

Court for the Western District of Wisconsin, and the district

court denied relief. Burgess now appeals to this court.

2 No. 05-1663

What distinguishes this case from the many habeas

corpus petitions this court entertains each term is that

it involves one additional sovereign—Burgess is a mem-

ber of a federally recognized Indian tribe. He argues that as

a legal resident of an Indian reservation, the State of

Wisconsin lacked jurisdiction to commit him involuntarily

as a sexually violent person. He relies on Public Law 280,

67 Stat. 588 (1953), codified in part at 18 U.S.C. § 1162, 28

U.S.C. § 1360, under which Congress expressly granted

Wisconsin criminal and limited civil jurisdiction over

matters involving Indians. We conclude that the Supreme

Court of Wisconsin’s ultimate resolution of Burgess’s

jurisdictional claim was not contrary to or an unreasonable

application of clearly established law as articulated by

the Supreme Court of the United States, and we thus affirm

the district court’s denial of the petition.

I

Burgess is an enrolled member of the Lac du Flambeau

Band of Lake Superior Chippewa Indians (Lac du Flam-

beau), a federally-recognized Indian tribe. For most of his

life, Burgess has lived on the Lac du Flambeau Reservation

in Vilas County, Wisconsin; he is a legal resident of his

tribal reservation land.

In February of 1995, Burgess was convicted of attempted

second-degree sexual assault of a child (a crime that he

committed on his reservation) in the Circuit Court for Vilas

County, Wisconsin. He was subsequently incarcerated at

the Oshkosh Correctional Institution, a prison facility of the

State of Wisconsin. There is no question that the Wisconsin

Circuit Court had jurisdiction, conferred by § 2 of Public

Law 280, to try Burgess for this crime. See State v. Webster,

338 N.W.2d 474, 476 (Wis. 1983) (“Public Law 280 gave

certain states, including Wisconsin, jurisdiction over crimes

committed by or against Indians in Indian country within

No. 05-1663 3

each state.”); see also 18 U.S.C. § 1162(a) (“[T]he criminal

laws of such state or territory shall have the same force and

effect within such Indian country as they have elsewhere

within the State or Territory.”).

On November 17, 1998, the day that Burgess was sched-

uled to be released from prison, the State of Wisconsin filed

a petition seeking his commitment as a chapter 980

“sexually violent person.” At that time, chapter 980 defined

“sexually violent person” as:

a person who has been convicted of a sexually violent

offense, or has been found not guilty of or not responsi-

ble for a sexually violent offense by reason of insanity

or mental disease, defect, or illness, and who is danger-

ous because he or she suffers a mental disorder that

makes it substantially probable that the person will

engage in acts of sexual violence.

Wis. Stat. § 980.01(7) (amended 2006). (The statute has

recently been amended; the last clause now reads “that

the person will engage in one or more acts of sexual vio-

lence.” Wis. Stat. § 980.01(7) (2006) (emphasis added).)

Once a court or jury has determined after proper pro-

ceedings that the individual is a sexually violent person,

“the court shall order the person to be committed to the

custody of the [D]epartment [of Health and Family Services]

for control, care and treatment until . . . the person is no

longer a sexually violent person.” Wis. Stat. § 980.06.

The statute also spells out the requirements for the

commitment procedures. The process begins with a probable

cause hearing, to determine whether “there is probable

cause to believe that the person named in the petition is a

sexually violent person.” Id. § 980.04(2). At the time the

state filed its chapter 980 petition in Burgess’s case, the

statute provided that “[i]f the court determines after a

hearing that there is probable cause to believe that the

person named in the petition is a sexually violent person,

4 No. 05-1663

the court shall order that the person be taken into custody

if he or she is not in custody and shall order the person to

be transferred within a reasonable time to an appropriate

facility for an evaluation as to whether the person is a

sexually violent person.” Id. § 980.04(3) (amended 2006). On

November 19, 1998, the circuit court found probable cause

that Burgess was a sexually violent person and ordered him

transferred to a state mental health institution for evalua-

tion.

Burgess requested a jury for the commitment proceeding.

See id. § 980.05(2). At the hearing, the state bore the

burden of proving beyond a reasonable doubt that he is a

sexually violent person. Id. § 980.05(3)(a). At the time

Burgess’s petition was pending before the circuit court,

the statute also afforded him “all constitutional rights

available to a defendant in a criminal proceeding,” id.

§ 980.05(1m). That provision has since been repealed, but

we have no occasion to consider any implications of the

change, as it has no effect on Burgess.

Prior to his hearing, Burgess filed a host of motions. Most

relevant to this appeal, he moved to dismiss the state’s

petition on the ground that the circuit court lacked jurisdic-

tion to conduct involuntary civil commitment proceedings

against enrolled tribal members. His position, essentially,

was that a chapter 980 proceeding falls into the cracks

between the jurisdiction conferred by the criminal and civil

provisions of Public Law 280. He acknowledged that the

federal statute grants Wisconsin broad criminal jurisdiction

over offenses committed by Indians both within the state

and on their reservation land, but he argued that this was

not a criminal proceeding. The grant of civil jurisdiction in

§ 4 of Public Law 280, codified at 28 U.S.C. § 1360(a), is

limited to private, civil litigation involving tribal members

in state court and does not give the state general civil

regulatory authority over reservation Indians; Burgess’s

position was that the involuntary commitment process

No. 05-1663 5

more resembled a regulatory action than a suit in tort or

contract.

After receiving Burgess’s motion, the circuit court wrote a

letter to the Lac du Flambeau tribal court asking whether

it could handle Burgess’s commitment proceeding. That

court declined jurisdiction, indicating that it was not in a

position to hear Burgess’s case because the tribe at that

time had no laws or ordinances calling for the indefinite

commitment of sexually violent persons. As a result, the

circuit court denied Burgess’s motion based on its under-

standing that the state was allowed to assert jurisdiction

over reservation Indians in any area where the tribe did not

have an ongoing tradition of acting.

At the hearing, both sides presented expert testimony

about Burgess’s mental condition and the likelihood of

recidivism. The jury found Burgess to be a sexually vio-

lent person. On August 10, 2000, the circuit court entered a

judgment indefinitely committing Burgess to the Wisconsin

Department of Heath and Family Services. Burgess filed a

number of post-judgment motions, including a motion for a

new trial or relief from judgment based in part on his

jurisdictional objection, but the circuit court denied these

motions.

Burgess appealed. Among the issues he raised before the

Wisconsin Court of Appeals was his argument that the state

court lacked jurisdiction to conduct chapter 980 proceedings

against enrolled tribal members, particularly where the

underlying offense was committed on reservation land. The

court of appeals affirmed. It agreed with Burgess that

chapter 980 was not a criminal or punitive law, and there-

fore that the circuit court did not have criminal jurisdiction

over Burgess’s case. In re the Commitment of Steven J.

Burgess, 654 N.W.2d 81, 88 (Wis. Ct. App. 2002) (citing

State v. Carpenter, 541 N.W.2d 105, 112-13 (1995)). Never-

theless, it rejected Burgess’s argument that this proceeding

6 No. 05-1663

fell outside the scope of Public Law 280’s grant of civil

jurisdiction.

Burgess then turned to the state supreme court, which

affirmed the judgment of the court of appeals on different

grounds. The supreme court reasoned that the circuit court

had jurisdiction to conduct Burgess’s chapter 980 proceed-

ings under Public Law 280’s broad grant of criminal

jurisdiction because the underlying conduct at issue,

sexually violent behavior, was prohibited by state crim-

inal law. The supreme court also concluded that Bur-

gess’s commitment proceeding was somehow ancillary to the

circuit court’s general criminal jurisdiction over tribal

members because the “civil proceedings under chapter 980

are enveloped on both sides by criminal conduct.” In re the

Commitment of Steven J. Burgess, 665 N.W.2d 124, 132

(Wis. 2003). In this connection, it pointed out that “only

persons who have committed sexually violent offenses

are eligible for commitment under chapter 980” and

“chapter 980 commitments are intended to protect the

public by preventing future acts of sexual violence.” Id. In

the alternative, the supreme court decided that “even if

chapter 980 is strictly construed as a ‘civil’ law in its

entirety,” it is not the type of civil law that gives the

state general regulatory authority over tribal members.

Instead, as a more ordinary civil law, it falls within Public

Law 280’s grant of civil jurisdiction. Id. In September 2003,

the court denied Burgess’s motion for reconsideration; the

United States Supreme Court denied certiorari on March

29, 2004.

Burgess then filed this petition for a writ of habeas

corpus. See 28 U.S.C. § 2254. The district court adopted

a magistrate judge’s recommendation to deny Burgess’s

petition on February 14, 2005. Although the district court

believed that Burgess had presented a strong argument

that the Supreme Court of Wisconsin erred in determining

that the state had jurisdiction to commit him under chapter

No. 05-1663 7

980, it held that the state court’s ruling was nonetheless not

contrary to or an unreasonable application of clearly

established precedent from the Supreme Court of the

United States. The district court further opined that in

cases such as this, where reasonable jurists can debate

whether a particular state court ruling is contrary to federal

law, it is up to the United States Supreme Court to make

the final call. Recognizing the substantiality of the jurisdic-

tional issue, the court granted Burgess’s motion for a

certificate of appealability on March 10, 2005.

II

On appeal, Burgess makes a number of powerful argu-

ments concerning general principles of tribal sovereignty

and the extent of Congress’s grant of jurisdiction to the

states over the affairs of reservation Indians. As interesting

as the merits of Burgess’s jurisdictional arguments

are, because he filed his petition after the effective date

of the Antiterrorism and Effective Death Penalty Act of

1996 (AEDPA), 28 U.S.C. § 2254, its standard of review

governs this case. See Gomez v. Berge, 434 F.3d 940, 942

(7th Cir. 2006). Under AEDPA, habeas corpus relief is

available only if Burgess can establish that the state court

proceedings “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States” or “resulted in a decision that was based on

an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). We review the decision of the last state court to

rule on the merits of the petitioner’s claim, here the Wiscon-

sin Supreme Court. See McFowler v. Jaimet, 349 F.3d 436,

446 (7th Cir. 2003).

Under AEDPA, a state court’s decision is “contrary to”

clearly established federal law “when the court reache[s] a

conclusion ‘opposite to that reached by [the Supreme] Court

8 No. 05-1663

on a question of law’ or confront[s] ‘facts that are materially

indistinguishable from a decision of the Supreme Court and

nevertheless arrives at a result different from [its] prece-

dent.’ ” Laxton v. Bartow, 421 F.3d 565, 570 (7th Cir. 2005)

(quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).

A state court “unreasonably applies” clearly established

Supreme Court decisions when it “correctly identifies the

governing legal rule but applies it unreasonably to the facts

of a particular [petitioner’s] case.” Id. (quoting Williams,

529 U.S. at 407-08) (internal quotation marks omitted). In

determining whether a state court has fallen afoul of the

“unreasonable application” branch of AEDPA, “a federal

habeas court may not issue the writ simply because that

court concludes in its independent judgment that the

relevant state-court decision applied clearly established

federal law erroneously or incorrectly.” Williams, 529 U.S.

at 411. The federal court may act only if the state court’s

decision is “objectively unreasonable.” Id. at 409. This court

has defined “objectively unreasonable” as “lying well outside

the boundaries of permissible differences of opinion,”

Hardaway v. Young, 302 F.3d 757, 762 (7th Cir. 2002); we

will allow the state court’s decision to stand if it is “one of

several equally plausible outcomes.” Hall v. Washington,

106 F.3d 742, 749 (7th Cir. 1997).

Within AEDPA’s framework, we review the district court’s

decision to deny Burgess’s habeas petition de novo. See

Horton v. Litscher, 427 F.3d 498, 504 (7th Cir. 2005).

Whether the state court’s decision was contrary to or an

unreasonable application of clearly established federal

law “is a mixed question of law and fact that we tradition-

ally also review de novo but with a grant of deference to any

reasonable state court decision.” Jackson v. Frank, 348 F.3d

658, 662 (7th Cir. 2003) (quoting Schaff v. Snyder, 190 F.3d

513, 522 (7th Cir. 1999) (emphasis in original)). In this case,

as in all cases that come to us under AEDPA, we emphasize

that we are expressing no opinion about the correctness of

No. 05-1663 9

the state court’s ruling as a matter of first principles.

Should a case in this area reach us through a different

procedural avenue without the AEDPA constraints on

review, we would be free to evaluate it for ourselves.

III

As a general matter, Indian tribes “retain attributes of

sovereignty over both their members and their territory”;

“tribal sovereignty is dependent on, and subordinate to,

only the Federal government, not the States.” California v.

Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987)

(internal citations omitted). Although a state is not com-

pletely barred from exercising jurisdiction over the activi-

ties of tribal members on reservation land lying within its

boundaries, “the exercise of state jurisdiction is limited and

must be based upon a specific grant of authority by Con-

gress.” St. Germaine v. Circuit Court for Vilas County, 938

F.2d 75, 76 (7th Cir. 1991). One such delegation of authority

is found in Public Law 280, which grants six states, includ-

ing Wisconsin, “jurisdiction over specified areas of Indian

country.” Cabazon, 480 U.S. at 207. In enacting Public Law

280, Congress was primarily concerned with “the problem

of lawlessness on certain Indian reservations,” as well as

the “absence of adequate tribal institutions for law enforce-

ment.” Bryan v. Itasca County, Minn., 426 U.S. 373, 379

(1976). With this in mind, the “central focus” of the Act, id.

at 380, was to give the enumerated states “broad criminal

jurisdiction over offenses committed by or against Indians

within all Indian country within the State.” Cabazon, 480

U.S. at 207. Section 2 of the Act therefore grants “jurisdic-

tion over offenses committed by or against Indians in the

areas of Indian country . . . to the same extent that such

State or Territory has jurisdiction over offenses committed

elsewhere within the State or Territory, and the criminal

laws of such State or Territory shall have the same force

10 No. 05-1663

and effect within such Indian country as they have else-

where within the State or Territory.” 18 U.S.C. § 1162(a).

Section 4 of Public Law 280 addresses civil cases, confer-

ring upon the listed states “jurisdiction over civil causes of

action between Indians or to which Indians are parties . . .

to the same extent that such State has jurisdiction over

other civil causes of action, and those civil laws of such

State that are of general application to private persons or

private property shall have the same force and effect within

Indian country as they have elsewhere within the State.” 28

U.S.C. § 1360(a). The Act’s grant of civil jurisdiction,

however, is more restricted than its grant of criminal

jurisdiction. Cabazon, 480 U.S. at 207. The Supreme Court

has read the statute as one that is “primarily intended to

redress the lack of adequate Indian forums for resolving

private legal disputes between reservation Indians, and

between Indians and other private citizens, by permitting

the court of the States to decide such disputes.” Bryan, 426

U.S. at 383. In Bryan, the Court wrote that “the consistent

and exclusive use of the terms ‘civil causes of action,’

‘aris(ing) on,’ ‘civil laws . . . of general application to private

persons or private property,’ and ‘adjudica(tion),’ in both the

Act and its legislative history virtually compel[led] [the]

conclusion that the primary intent of § 4 was to grant

jurisdiction over private civil litigation involving reserva-

tion Indians in state court,” and, importantly for Burgess’s

argument, not to confer general state civil regulatory

control over Indian reservations. Id. at 384-85.

The Supreme Court has also emphasized that Public Law

280 “plainly was not intended to effect total assimilation of

Indian tribes into mainstream American society,” recogniz-

ing that “a grant to States of general civil regulatory power

over Indian reservations would result in the destruction of

tribal institutions and values.” Cabazon, 480 U.S. at 208.

Thus, the proper characterization of a state law as criminal

No. 05-1663 11

or civil is an important first step in determining whether it

can be applied on a reservation. Id. In Cabazon, which was

about the applicability of a general California bingo statute

on reservations, the Court held that the critical distinction

is between state “criminal/ prohibitory” laws and state

“civil/regulatory” laws. Id. at 209-10. If a state law is

designed generally to prohibit certain conduct, it should be

classified as criminal; if it “generally permits the conduct at

issue, subject to regulation, it must be classified as

civil/regulatory and Pub. L. 280 does not authorize its

enforcement on an Indian reservation. The shorthand test

is whether the conduct at issue violates the State’s public

policy.” Id. at 209. The Court concluded that the bingo

statute was regulatory and thus could not be enforced on

the reservation. Id. at 221-22.

IV

Although the Supreme Court of Wisconsin correctly

identified Bryan and Cabazon as the governing Supreme

Court precedents, more than a correct citation is needed

to avoid a decision “contrary to” clearly established fed-

eral law. As we noted earlier, a state court decision is

“contrary to” a decision of the Supreme Court of the United

States if, on materially indistinguishable facts, it comes out

the opposite way. AEDPA in effect draws a line between

decisions that are flatly inconsistent with earlier precedents

of the Supreme Court, and decisions that, while not incon-

sistent in this literal sense, unreasonably apply the Court’s

decisions. In the present case, it makes little difference in

the end whether we analyze the state court’s decision under

the “contrary to” part of AEDPA or under the “unreasonable

application” part. One way or the other, the question at the

end of the day is whether a writ of habeas corpus may issue.

We therefore discuss the Supreme Court of Wisconsin’s

application of federal precedents with both parts of AEDPA

in mind.

12 No. 05-1663

The first task is to see whether chapter 980 of the Wiscon-

sin statutes should be classified as criminal or civil. The

Wisconsin court held that chapter 980 is more criminal than

civil for purposes of Public Law 280 because the underlying

conduct addressed by chapter 980, sexually violent behav-

ior, is contrary to Wisconsin’s public policy; it is not conduct

that the state generally permits subject to regulation. The

state supreme court further reasoned that chapter 980 is

more accurately characterized as criminal because “only

individuals who have been convicted of certain

crimes—‘sexually violent offenses,’ may be committed

pursuant to chapter 980” and “the primary purpose of

chapter 980 is to protect the public from future acts of

sexual violence.” In re Burgess, 665 N.W.2d at 132.

Rather than confronting this rationale directly, Burgess

devotes the bulk of his opening brief in this court to a

discussion of the decisions of the Supreme Court of Wiscon-

sin in County of Vilas v. Chapman, 361 N.W.2d 699 (Wis.

1985) and State v. Webster, 338 N.W.2d 474 (Wis. 1983).

Errors in these decisions, he believes, tainted the court’s

ruling in his case. According to Burgess, the Supreme Court

of Wisconsin has taken the view that the state is free to

assert jurisdiction over reservation Indians in any area

where the tribe does not have an ongoing tradition of

acting. This proposition, he argues, conflicts with Supreme

Court precedent providing that Congress must expressly

grant the state jurisdiction over the activity in question.

The problem with Burgess’s argument is that it does not

address the basis on which the state court ultimately ruled.

Rather than relying on Chapman or Webster, the state

supreme court held that Congress, through Public Law 280,

explicitly granted the state jurisdiction over Burgess’s

commitment proceeding. Under the circumstances, neither

Chapman nor Webster is before us, and we have no occasion

to decide whether one or the other runs afoul of applicable

Supreme Court precedent. Because the Supreme Court of

No. 05-1663 13

Wisconsin relied on Cabazon, it is with that decision that

we begin our analysis.

Cabazon is more helpful for distinguishing between

civil and criminal cases for purposes of Public Law 280 than

it is for drawing the line between civil cases that the state

may entertain and those it may not. The characterization of

a state law as “criminal” or “civil” for purposes of the federal

jurisdictional statute is a question of federal law: the

question is which state proceedings, however labeled, did

Congress mean to permit the states to conduct with respect

to their Native American populations. Cf. Taylor v. United

States, 495 U.S. 575, 590-91, 598 (1990) (adopting uniform

federal definition of term “burglary” for purposes of 18

U.S.C. § 924(e)). The state court’s choice of label cannot be

the last word on the matter. Ultimately, it is federal law, as

authoritatively interpreted by the Supreme Court of the

United States, that provides the answer we seek.

With respect, we cannot agree with the Supreme Court of

Wisconsin that chapter 980 qualifies as a “criminal” statute.

If it is, indeed, a criminal statute, serious consequences

would follow in other areas of the law. A person like

Burgess who already has been convicted and punished for

certain behavior would be able to plead double jeopardy, for

example. Criminal procedure rules of constitutional dimen-

sion would have to be respected during the proceeding. But

the Supreme Court of the United States has squarely

rejected this characterization for a law materially identical

to Wisconsin’s, in Kansas v. Hendricks, 521 U.S. 346 (1997).

In Hendricks, the Court held that a Kansas statute that

permitted confinement of a person who was likely to engage

in “predatory acts of sexual violence” violated neither the

Double Jeopardy Clause of the Constitution nor the ex post

facto clause. Id. at 361. It was “unpersuaded . . . that

Kansas has established criminal proceedings.” Id.

Other decisions, including some from Wisconsin itself,

have also rejected the argument that statutes like chapter

14 No. 05-1663

980 create criminal offenses. See, e.g., Seling v. Young, 531

U.S. 250 (2001) (recognizing that Washington State’s

Community Protection Act of 1990, which is virtually

indistinguishable from Wisconsin’s chapter 980 statute, was

civil as opposed to criminal and rejecting contention that a

habeas petitioner could mount a challenge that the Act was

“criminal as applied”); Allen v. Illinois, 478 U.S. 364 (1986)

(holding that proceedings under the Illinois Sexually

Dangerous Persons Act were not criminal for purposes of

Fifth Amendment’s prohibition of compulsory self-incrimi-

nation); State v. Carpenter, 541 N.W.2d 105, 107 (Wis. 1995)

(“We conclude in this opinion that ch. 980 creates a civil

commitment procedure primarily intended to protect the

public and to provide concentrated treatment to convicted

sexually violent persons, not to punish the sexual

offender.”); Jay M.H. v. Winnebago County Dept. of Health

and Human Servs., 714 N.W.2d 241, 244 n.4 (Wis. App.

2006) (“Wisconsin Stat. ch. 980 creates a civil commitment

procedure primarily intended to provide treatment and

protect the public, is not criminal in nature, and is not

intended to punish the offender.”). In Burgess’s case itself,

the state supreme court acknowledged its previous holding

that the chapter 980 statute was “civil rather than crimi-

nal,” In re Burgess, 665 N.W.2d at 132, but it nonetheless

determined that the state had jurisdiction to commit

Burgess under Public Law 280’s grant of criminal jurisdic-

tion. But the court gave no reason why this state statute

should suddenly become criminal solely for the purpose of

jurisdiction over crimes committed by Indians, when it has

authoritatively been deemed civil in all other contexts.

The state court noted that chapter 980 is actually aimed

at prohibiting “conduct” that violates Wisconsin’s public

policy. That alone, however, cannot be enough; exactly

the same thing could have been said about the Kansas

statute at issue in Hendricks. Without question, the past

commission of a sexual assault is “conduct” that offends

No. 05-1663 15

state public policy and for which there are criminal penal-

ties. See Wis. St. §§ 940.225, 948.02. Chapter 980, however,

has been described by the Supreme Court of Wisconsin as

a future-oriented statute that is “primarily intended to

protect the public and to provide concentrated treatment to

convicted sexually violent persons.” Carpenter, 541 N.W.2d

at 107. Like the involuntary commitment statute at issue in

Hendricks, chapter 980 does not “make the commission of

a specified ‘offense’ the basis for invoking the commitment

proceedings. Instead, it uses a prior conviction (or previ-

ously charged conduct) for evidentiary purposes to deter-

mine whether a person suffers from a mental abnormality

. . . and also poses a threat to the public.” 521 U.S. at 370.

We are also unpersuaded by the proposition that a law

like chapter 980 should be regarded as criminal for pur-

poses of Public Law 280 because, as the Wisconsin Supreme

Court put it, it is “enveloped on both sides” by criminal

conduct. In re Burgess, 665 N.W.2d at 132. In fact, that is

not necessarily the case. Although chapter 980 certainly

applies to persons like Burgess who have been convicted of

sexually violent offenses, it also applies to individuals who

“ha[ve] been found not guilty of or not responsible for a

sexually violent offense by reason of insanity or mental

disease, defect, or illness.” Wis. St. § 980.01(7) (amended

2006). On the back end, the Wisconsin Supreme Court

found support for a “criminal” classification in the fact that

chapter 980 is intended to protect the public by preventing

future acts of sexually violent behavior. This is inconsistent,

however, with decisions of the Supreme Court of the United

States that have characterized these and similar schemes

as civil precisely because they are aimed at protecting the

public from future danger. See, e.g., Hendricks, 521 U.S. at

361 (“Nothing on the face of the statute suggests that the

legislature sought to create anything other than a civil

commitment scheme designed to protect the public from

harm.”); Smith v. Doe, 538 U.S. 84, 108 (2003) (holding that

16 No. 05-1663

sex offender registration statute is civil and nonpunitive

and recognizing that “[e]nsuring public safety is. . .a

fundamental regulatory goal”); Jones v. United States, 463

U.S. 354, 361-62(1983) (recognizing that the “statutory

scheme for commitment of insane criminals is . . . a regula-

tory, prophylactic statute, based on a legitimate governmen-

tal interest in protecting society and rehabilitating mental

patients” (internal quotation marks omitted)).

In the final analysis, if this case turned solely on the

question whether clearly established federal law would

permit a characterization of chapter 980 as criminal, we

would need to reverse. It does not, however. Public Law 280

also permits the designated states to exercise certain forms

of civil jurisdiction over Indians. The Supreme Court of

Wisconsin squarely addressed this alternate ground

and held that “even if chapter 980 is strictly construed

as a ‘civil’ law in its entirety, it is civil/adjudicatory rather

than civil/regulatory, and therefore falls within PL-280’s

grant of civil jurisdiction to the State.” In re Burgess, 665

N.W.2d at 132. We therefore turn now to that rationale.

V

In upholding the state’s power to treat Burgess’s case

under the civil jurisdiction permitted by federal law, the

state supreme court relied on the Supreme Court’s deci-

sion in Bryan. In that case, the Court considered whether

§ 4 of Public Law 280 gave states the power to tax reserva-

tion Indians under specified conditions. In concluding

that the state lacked this power, the Court reasoned that §

4 was primarily intended “to redress the lack of ade-

quate Indian forums for resolving private legal disputes

between reservation Indians, and between Indians and

other private citizens,” not to “confer general state civil

regulatory authority over reservation Indians.” Bryan, 426

U.S. at 383, 384. In a footnote, the Court cited a law review

No. 05-1663 17

article for the proposition that “Congress intended ‘civil

laws’ to mean those laws which have to do with private

rights and status. Therefore, ‘civil laws . . . of general

application to private persons or private property’ would

include the laws of contract, tort, marriage, divorce, insan-

ity, descent, etc., but would not include laws declaring or

implementing the states’ sovereign powers, such as the

power to tax, grant franchises, etc.” Id. at 385 n. 10. Based

upon this language, the Wisconsin Supreme Court deter-

mined that chapter 980 is a law having to do with private

rights and status, more akin to a proceeding to adjudicate

insanity than to a law conferring upon the state the power

to tax.

Although it is clear that a state does not have the

power to tax reservations under Public Law 280’s limited

grant of civil jurisdiction, the Supreme Court has not had

much to say about how to determine whether a law seeks to

adjudicate private rights, and thus falls within the bounds

of § 4 of Public Law 280, or is a regulatory scheme. This

court has questioned whether a state would have jurisdic-

tion involuntarily to commit an enrolled tribal member, but

we did not need to decide the issue. See United States v.

Teller, 762 F.2d 569, 577 (7th Cir. 1985) (noting that

“questions of jurisdiction are raised by two facts—the crime

took place on an Indian reservation, and so trial was to be

in federal court, and the defendant is an Indian, and so

perhaps not subject to the state’s civil commitment proce-

dures.”). There are certainly strong arguments that chapter

980 falls outside Public Law 280’s limited grant of civil

jurisdiction. In other contexts, the Supreme Court has

expressly classified these types of civil laws that aim to

protect the public from danger as “regulatory.” See, e.g.,

Smith v. Doe, 538 U.S. 84, 108 (2003); Jones v. United

States, 463 U.S. 354, 361-62 (1983); Addington v. Texas, 441

U.S. 418, 426 (1979) (“[T]he state also has authority under

its police power to protect the community from the danger-

18 No. 05-1663

ous tendencies of some who are mentally ill.”). At least one

court has determined that a state lacks the authority

involuntarily to commit a mentally ill Native American who

resides on a reservation. White v. Califano, 437 F.Supp.

543, 550 (D.S.D. 1977), aff’d., 581 F.2d 697 (8th Cir. 1978)

(determining that because “the process of committing

someone involuntarily brings the power of the state deep

into the lives of the persons involved in the commitment

process . . . applying the procedures of an involuntary

commitment to an Indian person in Indian country would

require severe intrusions into the tribe’s vestigial sover-

eignty”). The Wisconsin Attorney General has opined that

Public Law 280 applies only to disputes between private

parties, which would seem to exclude a proceeding like the

one Burgess faced. See 70 Wis. Op. Atty. Gen 237 at *3

(1981).

In United States v. Teller, we recognized that the question

whether a reservation Indian could be subject

to involuntary civil commitment was “an open question of

some difficulty.” 762 F.2d at 577 n.5. Relying on the lan-

guage in Bryan suggesting that proceedings to adjudicate

status, such as insanity, probably fall within Public Law

280’s grant of civil jurisdiction, the Supreme Court of

Wisconsin resolved this question in favor of the state’s

jurisdiction. The Supreme Court of the United States has

not spoken to this precise question. Burgess interprets

Bryan’s reference to “status” and “insanity” as referring

to private disputes concerning insanity, such as a case

concerning guardianship, and not those cases to which

the state is a party. This interpretation is certainly reason-

able; in fact, the Wisconsin Attorney General may well

agree with Burgess in this matter. See 70 Wis. Op. Atty.

Gen 237 at *3 (in the context of child custody mat-

ters involving Indians, opining that the state would not

have jurisdiction involuntarily to terminate parental rights,

but “where the proceeding is not between the state and

No. 05-1663 19

individual, but rather primarily involves only private

persons as in a voluntary foster care placement, state law

may be applied under Public L. No. 280’s jurisdictional

grant.”).

Burgess’s view, however, is not the only reasonable

interpretation. Indeed, at least one other court has rejected

the argument that civil actions to which the state is a party

automatically fall outside Public Law 280’s limited grant of

civil authority. See Doe v. Mann, 415 F.3d 1038 (9th Cir.

2005) (specifically rejecting the Wisconsin Attorney Gen-

eral’s opinion distinguishing between voluntary and

involuntary child custody matters and determining that

California’s enforcement of its child dependency laws fell

within state’s civil adjudicatory jurisdiction and thus state

could terminate reservation Indian’s parental rights). This

is enough to show, under the generous AEDPA standards,

that the Wisconsin Supreme Court’s conclusion does not lie

outside the bounds of permissible differences of opinion. We

thus cannot conclude that the court unreasonably applied

clearly established federal law.

VI

The Wisconsin Supreme Court’s determination that

Public Law 280 conferred jurisdiction on the State of

Wisconsin to commit Burgess under applicable state law

was not contrary to or an unreasonable application of

clearly established federal law. We therefore AFFIRM the

district court’s judgment denying Burgess’s petition for a

writ of habeas corpus.

20 No. 05-1663

RIPPLE, Circuit Judge, concurring in the judgment. In my

view, the Supreme Court of Wisconsin reached a reasonable

result when it determined that, for purposes of section 2 of

Public Law 280, 67 Stat. 588 (1953), the commitment

procedure under the Wisconsin Sexually Violent Persons

Commitment Statutes, Wis. Stat. § 980 et seq. (chapter

980), is criminal in nature.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—11-2-06