Ho-Chunk Nation v. Wisconsin Department of Revenue

2009 WI 48, 766 N.W.2d 738, 317 Wis. 2d 553, 2009 Wisc. LEXIS 136

• Court: Wisconsin Supreme Court
• Decided: June 16, 2009
• Docket: 2007AP1985
• Status: Published

Opinions

N. PATRICK CROOKS, J.

¶ 1. This review of a published court of appeals decision¹ involves the Ho-Chunk Nation's appeal of a denied claim for a tax refund under Wis. Stat. § 139.323(3) (2005-06).² The statute authorizes partial refunds for cigarette taxes provided the tax was collected on sales made on land that "was designated a reservation or trust land on or before January 1, 1983." At issue is whether the land on which the relevant sales took place satisfies that portion of the statute. The land was approved for purchase in August 1982 and formally accepted by the United States government on January 31, 1983. The question on which this case turns is at what point a particular parcel of land "was designated . .. trust land" for purposes of Wis. Stat. § 139.323.

¶ 2. The court of appeals determined that land cannot be held in trust until formal acceptance occurs and that in order to satisfy the tax refund statute's requirements, land must be held in trust on or before January 1, 1983. Because formal acceptance of the property in question here did not occur until after that date, the court of appeals held that the claim for a refund was properly denied. This was the same result that had been reached by the Wisconsin Department of Revenue (DOR), the Wisconsin Tax Appeals Commission (the Commission), and the circuit court. The Ho-Chunk Nation sought review.

¶ 3. For the reasons set forth below, we affirm. " [Reservations or trust lands" are also referred to in the sentence preceding the provision in question; a sensible reading of the statute (Wis. Stat. § 139.323) requires that the two references be read as identifying the same land. The grammatical construction of the sentence itself lends further support to our holding because "was designated" precedes both "a reservation" and "trust land" and means the same thing about each. Given that there is no basis in the federal regulations for recognizing a preliminary, unofficial status for reservations or trust lands, there is likewise no basis for reading this statute as intending to apply to land that has received only preliminary informal approval.

¶ 4. We therefore hold that in this context the phrase "was designated a reservation or trust land" is necessarily read as referring to the applicable formal process that must occur in order for land to be a reservation or trust land. Because the proper authorities had not completed the necessary steps for the property in question to be designated a reservation or trust land on or before January 1, 1983, and because that is required in order to qualify for the tax refund, the claim was properly denied.

I. BACKGROUND

¶ 5. The question on which this case turns is at what point a particular parcel of land "was designated ... trust land" for purposes of Wis. Stat. § 139.323, and because the parties differ as to when that happened, it is necessary to lay out, briefly, the process through which the land at issue came to be trust land.

¶ 6. In 1982 the Ho-Chunk Nation (the Nation), a federally recognized Indian tribe, received permission from the United States Department of the Interior, Bureau of Indian Affairs (BIA), to acquire a five-acre parcel of land known as the DeJope Property. A Washington, D.C., BIA official sent a memo dated August 20, 1982, to a Minneapolis BIA official, stating in relevant part, 'You are, therefore, authorized to accept conveyance to the United States in trust upon consideration of appropriate title evidence in accordance with the requirements of 25 CFR 120a. 12 [1982]." On October 29, 1982, the seller of the DeJope Property received payment from the Nation and conveyed the title by delivery of a warranty deed. On January 31, 1983, the Minneapolis BIA Area Director signed the deed, accepting the conveyance. The deed was recorded with the Dane County Register of Deeds on March 18, 1983.

¶ 7. When the Nation filed claims with the DOR requesting a refund of 70 percent of the taxes paid on cigarette sales at the DeJope Property for periods during 2003 and 2004, the claims were denied. The DOR denied the claims because "the [DOR] must accept the date of January 31, 1983[,] as the date the DeJope land was 'designated' for the purposes of § 139.323, Wis. Stats." As a result, the DOR determined that the DeJope Property did not meet the statutory requirements in order to receive the requested refund.

¶ 8. The Nation filed an appeal of the decision with the Tax Appeals Commission. In a ruling and order issued on February 15, 2006, the Commission granted summary judgment in favor of the DOR.

¶ 9. The Nation petitioned the Dane County Circuit Court for review. The circuit court, the Honorable Sarah B. O'Brien presiding, affirmed.

¶ 10. The Nation then filed an appeal, and the court of appeals affirmed. Ho-Chunk Nation v. DOR, 2008 WI App 95, 312 Wis. 2d 484, 754 N.W.2d 186. The court of appeals concluded that "the United States government does not hold the land in trust until formal acceptance under 25 C.F.R. § 151.14 (2007) occurs. Because this did not occur with respect to the DeJope property until after January 1, 1983, the Ho-Chunk Nation is not entitled to a refund." Id., ¶¶ 2, 36. The Nation petitioned for review, and this court granted the petition. • o

II. STANDARD OF REVIEW

¶ 11. This case requires statutory interpretation, and the standard of review for statutory interpretation is de novo. DOR v. Menasha Corp., 2008 WI 88, ¶ 44, 311 Wis. 2d 579, 754 N.W.2d 95.

¶ 12. In a case that involves a ruling by the Commission, we review the Commission's decision rather than the decision of the circuit court. Id., ¶ 46. Like Menasha, this case involves review of an agency action so the question arises as to whether any deference is due, and if so, what level applies. In Menasha, this court said the agency to which deference is due is the Commission, and the level of deference as to the Commission's interpretation of statutes is one of three levels: great weight, due weight, or no deference. Id., ¶¶ 47-49.

¶ 13. In its written ruling, the Commission stated, "The specific issue before us is one of first impression." "No deference is given to the agency's statutory interpretation when the issue is one of first impression, the agency has no experience or expertise in deciding the legal issue presented, or the agency's position on the issue has been so inconsistent as to provide no real guidance." Menasha, ¶ 50. We therefore review the ruling of the Commission in this case giving no deference to the agency's statutory interpretation.

III. DISCUSSION

¶ 14. Wisconsin Stat. § 139.323 authorizes refunds of cigarette taxes to Indian tribes "in respect to sales on reservations or trust lands" when certain conditions are met. The DOR denied the tax refund claim in this case on the grounds that the claim was for sedes on land that did not meet the third condition: that "[t]he land on which the sale occurred was designated a reservation or trust land on or before January 1, 1983." As we noted previously, that denial was affirmed by the Commission.

¶ 15. There is no dispute that the De Jope Property is now trust land; the dispute is whether it was so designated prior to the January 1, 1983, deadline such that taxes of cigarette sales on that property meet the statute's conditions and may be refunded to the Nation. The Commission ruling stated, "Although the parties did not stipulate to the facts in this case, they do not dispute any material facts.... Furthermore, the Department does not dispute that the Tribe's refund Claim satisfies all of the requirements of Wis. Stat. § 139.323 except one, which is that the land on which the cigarette sales occurred must have been 'designated a reservation or trust land on or before January 1, 1983.'"

¶ 16. The DOR, in urging us to affirm the decision of the Commission, argues that the language "was designated" refers to the official process described in the fee-to-trust regulations spelled out in the Code of Federal Regulations (C.F.R.). This process has several steps and is completed, according to the C.F.R., when the land is formally accepted into trust. The DOR argues that this occurred with respect to the land in question on January 31, 1983, and as a result, there is no entitlement to a refund under the statute. The DOR bases its argument on the applicable regulations, 25 C.F.R. §§ 151.12 and 151.13 (1982):

25 C.F.R. § 151.12 If the Secretary determines that he will approve a request for the acquisition of land from unrestricted fee status to trust status, he shall acquire, or require the applicant to furnish, title evidence .... After having the title evidence examined, the Secretary shall notify the applicant of any liens, encumbrances, or infirmities which may exist. The Secretary may require the elimination of any such liens, encumbrances, or infirmities prior to taking final approval action on the acquisition and he shall require elimination prior to such approval if the liens, encumbrances, or infirmities make title to the land unmarketable.

25 C.F.R. § 151.13 Formal acceptance of land in trust status shall be accomplished by the issuance or approval of an instrument of conveyance by the Secretary as is appropriate in the circumstances.

¶ 17. The DOR further argues that if this court finds the statute ambiguous, we should resolve the question in its favor, applying the exemption canon of construction, which generally requires a strict reading of statutes having to do with exemptions, refunds and other tax privileges.

¶ 18. The Nation argues that the DeJope Property was designated trust land in August 1982,³ when the Washington BIA official authorized the local BIA official "to accept conveyance" of the property. The Nation argues that the word "designated," when given its ordinary meaning, should be understood to mean "set apart for a purpose or duty," and that the land was set apart for the purpose of being trust land at the point when the BIA authorized its conveyance.

¶ 19. The Nation argues, in the alternative, that if the statute is ambiguous, we should apply the "Indian canon of construction," which requires that ambiguity be resolved in a tribe's favor when a statute is applied to an Indian tribe.

¶ 20. The first question, then, is whether the statute is ambiguous.

¶ 21. The Commission held that Wis. Stat. § 139.323 is not ambiguous, citing to a 1985 opinion of the Attorney General concerning the statute.⁴

¶ 22. The circuit court and court of appeals said it is.⁵ In their analysis, both courts cited the fact that there are multiple definitions of the word "designate."

¶ 23. However, the existence of multiple definitions does not mean that in a particular context a word is ambiguous. As we noted in Kalal:

Many words have multiple dictionary definitions; the applicable definition depends upon the context in which the word is used. Accordingly, it cannot be correct to suggest, for example, that an examination of a statute's purpose or scope or context is completely off-limits unless there is ambiguity. It is certainly not inconsistent with the plain-meaning rule to consider the intrinsic context in which statutory language is used; a plain-meaning interpretation cannot contravene a textually or contextually manifest statutory purpose.

State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 49, 271 Wis. 2d 633, 681 N.W.2d 110.

¶ 24. Other courts have also noted that dictionaries provide minimal help in a determination of ambiguity. As one court noted:

While dictionaries may be helpful to the extent they set forth the ordinary, usual meaning of words, they provide an inadequate test for ambiguity. To allow the existence of more than one dictionary definition to be the sine qua non of ambiguity would eliminate contextual analysis of contractual terms; any time a definition appeared in a dictionary of whatever credibility or usage, that definition could be said to be "reasonable" and thus render many, if not most, words ambiguous. Dictionaries define words in the abstract, while courts must determine the meaning of terms in a particular context....

Gulf Metals Indus., Inc. v. Chicago Ins. Co., 993 S.W.2d 800, 805-06 (Tex. Ct. App. 1999).

¶ 25. This is a point that is easily observed in common usage — the fact that the word "tip" has multiple meanings does not render the sentence "police received a tip" ambiguous. For that matter, the word "reservation" itself has multiple meanings, but in context it is unambiguous.

¶ 26. Here, there are two ways the context of the statute renders the provision unambiguous notwithstanding the multiple dictionary definitions of the verb "to designate."⁶

¶ 27. First, the surrounding text of the statute refers to lands that have the status of reservation and trust land, giving an indication that the rest of the statute should also be read that way. The language in the statute that precedes the enumerated conditions states:

Refunds to Indian tribes. The department shall refund 70% of the taxes collected under s. 139.31(1) in respect to sales on reservations or trust lands of an Indian tribe to the tribal council of the tribe having jurisdiction over the reservation or trust land on which the sale is made if all the following conditions are fulfilled ....

Wis. Stat. § 139.323 (emphasis added).

¶ 28. In the enumerated conditions, the further condition is set forth that the land on which the sale occurred "was designated" trust land before a specific date, January 1, 1983. We agree with the court of appeals that there is no reason to read the two parts of the statute as referring to different requirements for the land. The first part of the statute refers to sales on land that has the status of reservation or trust land, and the second part of the statute simply limits the refund to taxes collected on sales that occurred on land that had that status on or before the specified date.

¶ 29. Second, in the sentence we construe, the verb (in the passive construction, "was designated") connects the subject ("the land on which the sale occurred") to two subjective complements ("a reservation" and "trust land"). Ordinarily, "was designated" would be understood to apply in the same way to each of those terms. In other words, whatever "was designated" means as to "a reservation," it also means as to "trust land." Put the other way, it cannot reasonably be read as meaning "set aside for future approval" with regard to trust lands, unless it means the same thing for reservations. However, there is no indication that federal law recognizes an official status for land having received preliminary approval for reservation lands.⁷

¶ 30. Reservations have been created by statute, agreement, executive order, and treaty. See United States v. Dion, 476 U.S. 734, 745 n.8 (1986). Trust land is created in accordance with federal regulations. The choice of the word "designated" in this statute is sensible because it encompasses the variety of methods by which land attains the distinction of reservation or trust land. Only when the applicable steps are completed does the land in question attain the status required by the statute.

¶ 31. That is also a plausible reason to choose the word "designated" in the first place. The Nation argues that we must read the word "designated" as meaning land that has some preliminary and non-final approval; otherwise we render the words surplusage.⁸ It is true that the legislature could have worded the statute a number of ways to accomplish what it intended. The statute could have been written without the word "designated." We do give effect to every word in a statute. Giving effect to every word, however, does not require that we generate ambiguity where there is none evident in the context. Here we give effect to the word "designated" without reading it the way that the Nation asks. As noted above, sometimes the word with broader connotations is the better choice because its meaning encompasses the varied procedures that are involved. Here, for example, referring to land that has been "designated" a reservation covers reservations created in a variety of ways. To read the word "designated" otherwise, as loaded with great meaning and as conferring official status based on a nonfinal act, is to import unnecessary uncertainty into a straightforward statute.

¶ 32. As was noted previously, there is, in fact, a series of preliminary and tentative acts that are part of the process by which land becomes trust land, as a look at the relevant regulations makes clear. There are also obstacles in the process that may in some cases prove fatal to the transaction. The regulations discuss the potential effect of liens, for example, and give the Secretary of the Interior the authority to require that they be eliminated.⁹

¶ 33. These regulations require "approval of an instrument of conveyance" before the formal acceptance of the land in trust status is accomplished.¹⁰ The deed in the record, the instrument of conveyance here, shows that it was approved on January 31, 1983.

¶ 34. We briefly acknowledge additional arguments made by the parties concerning the appropriate canons of construction. The Nation argues that the statute should be construed liberally because it concerns Indian tribes. Under the "Indian canon of construction," statutes "passed for the benefit of dependent Indian tribes . . . are to be liberally construed, [with] doubtful expressions being resolved in favor of the Indians." Bryan v. Itasca County. Minn., 426 U.S. 373, 392 (1976).

¶ 35. However, the DOR argues that courts have declined to apply the Indian canon where there was no ambiguity in the statute in the first place. See Chickasaw Nation v. United States, 534 U.S. 84, 95 (2001) (also noting that the Indian canon does not necessarily trump other canons of construction where they conflict and specifically mentioning the exemption canon). The DOR further argues that that is precisely the case here because the statute is the equivalent of an exemption statute, and it is well settled that statutes concerning exemptions, deductions, and privileges are strictly construed.¹¹

¶ 36. Because we hold that the statute is unambiguous when the provisions are read in context, it is not necessary to address the arguments concerning which canons of statutory interpretation would apply were the statute ambiguous. However, we note that even were we to hold that the statute is ambiguous, the bar would be set quite high for the Nation under the applicable canon of statutory construction:

As a general rule courts have held that statutes exempting property from taxation should be strictly construed in favor of taxation, but should not be interpreted unreasonably. If the standard granting an exemption is capable of two interpretations, one granting exemption and the other denying it, the construction which denies the exemption must be adopted. The same rule has been applied to deductions.

Tax refund statutes must be construed strictly in favor of imposing the tax and against allowing the refund, and the burden is on the person requesting the refund to bring himself within the refund statute.

Norman J. Singer, 3A Sutherland Statutory Construction § 66:9 (6th ed. 2003) (citations omitted). It is clear to us that the Nation would have considerable difficulty meeting the burden of overcoming the countervailing exemption canon, especially considering the way the United States Supreme Court in Chickasaw Nation signaled the Indian canon's loss of strength.

IV CONCLUSION

¶ 37. For the reasons set forth above, we affirm. "[Reservations or trust lands" are also referred to in the sentence immediately preceding the provision in question; a sensible reading of the statute (Wis. Stat. § 139.323) requires that the two references be read as identifying the same land. The grammatical construction of the sentence itself lends further support to our holding because "was designated" precedes both "a reservation" and "trust land" and means the same thing about each. Given that there is no basis in the federal regulations for recognizing a preliminary, unofficial status for reservations or trust lands, there is likewise no basis for reading this statute as intending to apply to land that has received only preliminary informal approval.

¶ 38. We therefore hold that in this context the phrase "was designated a reservation or trust land" is necessarily read as referring to the applicable formal process that must occur in order for land to be a reservation or trust land. Because the proper authorities had not completed the necessary steps for the property in question to be designated a reservation or trust land on or before January 1, 1983, and because that is required in order to qualify for the tax refund, the claim was properly denied.

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

1 Ho-Chunk Nation v. DOR, 2008 WI App 95, 312 Wis. 2d 484, 754 N.W.2d 186.

2 All subsequent references to the Wisconsin Statutes are to the 2005-06 version unless otherwise indicated.

3 The Nation argues in the alternative that another act satisfies the requirement that the land be designated trust land on or before January 1, 1983. The Nation argues that, at the latest, the land was designated trust land on December 7,1982, the date on which the Great Lakes BIA office sent a memo and forwarded the deed — signed only by the seller at that point — to the Minneapolis office. The memo states that the deed is enclosed "for approval." The argument that this act constitutes designating the land as trust land is unpersuasive for the same reasons that the first argument is unpersuasive; the December 7, 1982, memo merely represents a different point in the pre-approval process.

4 The Commission said, "The specific issue before us is one of first impression. However, in addressing a different question under the same statute, the Attorney General of Wisconsin opined that Wis. Stat. § 139.323 is not ambiguous.... We also find that Wis. Stat. § 139.323 is not ambiguous, and therefore must be interpreted according to its plain meaning." However, the Attorney General opinion cited, 74 Wis. Op. Att'y Gen. 134 (1985), has to do with another issue and reaches no conclusion specifically as to the statute's requirement that sales occur on land that was designated a reservation or trust land on or before January 31, 1983.

5 The circuit court said, "Both of these meanings are reasonable, which is borne out by the definitions of 'designate' found in The American Heritage Dictionary of the English Language (4th ed. 2000)." The court of appeals noted that dictionary definitions of the word led to opposite interpretations: "The definitions the Nation chooses — 'select' and 'nominate,' see Black's Law Dictionary 447 (6th ed. 1990) —have a preliminary sense to them that would support the Nation's proposed construction. However, the definitions 'specify,' 'give a name or title to,' and 'characterize,' see American Heritage College Dictionary 376 (3d ed. 1993), suggest that the property would need to actually be held in trust before the property could be so specified, named, titled or characterized." Ho-Chunk Nation, 312 Wis. 2d 484, ¶ 16.

6 We note that no legislative history has been proffered by either party to shed further light on the terms at issue here. The circuit court said, "Unfortunately, the legislative history does not shed any light on this ambiguity." The court of appeals said, "The parties have presented us with no legislative history regarding Wis. Stat. § 139.323." Ho-Chunk Nation, 312 Wis. 2d 484, ¶ 18. The Commission cited no legislative history in its ruling that the statute was unambiguous. It favorably cited a 1985 opinion of the Attorney General, 74 Wis. Op. Att'y Gen. 134 (1985), which addressed a different question about Wis. Stat. § 139.323 and opined on the legislative history relevant to that question; however, that opinion does not address the question raised here and does not assist in our analysis.

The dissent carefully examines legislative history but stops short of identifying anything that documents the legislature's intent for the DeJope Property to be subject to the tax refund. The legislature was free (and of course remains free) to take a different approach — a simple edit would suffice to broaden the scope of this statute in such a way that the DeJope Property would not clearly be excluded (e.g., to change the January 1, 1983, cut-off date to coincide with the effective date of the statute or to set a later cut-off date).

7 As the court of appeals noted, the relevant federal regulations never use the word "designated," so there is no helpfiil guidance to be found there. Ho-Chunk Nation, 312 Wis. 2d 484, ¶ 20.

8 "[Statutes must he construed, if possible, so that no word or clause is rendered surplusage." Hayne v. Progressive N. Ins. Co., 115 Wis. 2d 68, 339 N.W.2d 588 (1983).

9 "After having the title evidence examined, the Secretary shall notify the applicant of any liens, encumbrances, or infirmities which may exist. The Secretary may require the elimination of any such liens, encumbrances, or infirmities prior to taking final approval action on the acquisition and he shall require elimination prior to such approval if the liens, encumbrances, or infirmities make title to the land unmarketable." 25 C.F.R. § 151.12 (1982).

10 "Formal acceptance of land in trust status shall be accomplished by the issuance or approval of an instrument of conveyance by the Secretary as is appropriate in the circumstances." 25 C.F.R. § 151.13 (1982).

11 "[T]ax exemptions, deductions, and privileges are matters purely of legislative grace and tax statutes are to be strictly construed against the granting of the same, and one who claims an exemption must point to an express provision granting such exemption by language which clearly specifies the same, and thus bring himself clearly within the terms thereof." Comet Co. v. Dep't of Taxation, 243 Wis. 117, 123, 9 N.W.2d 620 (1943). "An exemption from taxation must be clear and express. All presumptions are against it, and it should not be extended by implication." Soo Line R.R. Co. v. DOR, 89 Wis. 2d 331, 359, 278 N.W.2d 487 (Ct. App. 1979), aff'd, 97 Wis. 2d 56, 292 N.W.2d 869 (1980). See also Ladish Malting Co. v. DOR, 98 Wis. 2d 496, 502, 297 N.W.2d 56 (Ct. App. 1980).