Rodewald v. Kansas Department of Revenue

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,098

JACOB CARL RODEWALD,
Appellant/Cross-appellee,

v.

KANSAS DEPARTMENT OF REVENUE,
Appellee/Cross-appellant.


SYLLABUS BY THE COURT

1.
The authority of the Kansas Department of Revenue to suspend a driver's license
pursuant to K.S.A. 8-1567a(f) only applies to persons who operated or attempted to
operate a vehicle in the state of Kansas.

2.
The phrase "within this state" in K.S.A. 2007 Supp. 8-1001(a) and the phrase "in
this state" in K.S.A. 8-1567a(a) are intended to mean locations in the state of Kansas that
are within the jurisdiction of a Kansas law enforcement officer. Those phrases do not
include the roadways—either public or private—within the Prairie Band Potawatomi
reservation over which tribal police have assumed jurisdiction to enforce tribal law.

3.
A state court cannot confer jurisdiction upon itself for public policy reasons.
Likewise, an agency of this state must derive its subject matter jurisdiction from statutory
authority.

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Appeal from Jackson District Court; MICHEAL A. IRELAND, judge. Opinion filed March 22, 2013.
Reversed and remanded with directions.

Michael C. Hayes, of Oskaloosa, argued the cause and was on the briefs for appellant/cross-
appellee.

J. Brian Cox, of legal services bureau, Kansas Department of Revenue, argued the cause and was
on the brief for appellee/cross-appellant.

The opinion of the court was delivered by

JOHNSON, J.: Jacob C. Rodewald appeals from the district court's summary
judgment in favor of the Kansas Department of Revenue (KDR), upholding the
suspension of Rodewald's Kansas driver's license. The basis for the suspension was
K.S.A. 8-1567a, which prohibits any person less than 21 years of age from operating a
vehicle in this state with a breath or blood alcohol content (BAC) of .02 or greater and
which provides for a driver's license suspension if the test results are greater than .02, but
less than .08. Rodewald contends that because he is an enrolled member of the Prairie
Band Potawatomi Nation and was operating a vehicle on the reservation when stopped by
a tribal officer, the tribal court had exclusive jurisdiction over any civil matter arising
from the incident, and the KDR acted outside the scope of its authority. We agree. The
grant of summary judgment is reversed, and the matter is remanded to the district court
with directions to order the reinstatement of Rodewald's driver's license.

FACTUAL AND PROCEDURAL OVERVIEW

On April 26, 2008, Prairie Band Potawatomi Nation (Nation) Police Officer John
Hurla stopped Rodewald's vehicle for driving recklessly. At all relevant times, Rodewald
was operating his vehicle within the boundaries of the Nation's reservation. After making
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contact with Rodewald, Officer Hurla initially detected a slight odor of an alcoholic
beverage coming from inside of the vehicle, but later determined the alcohol smell was
coming from Rodewald's person. Upon inquiry, Rodewald said that he had consumed a
beer with a friend and also admitted that he was only 18 years old.

Officer Hurla arrested Rodewald for violating provisions of the Nation's Law and
Order Code (Tribal Code), including that code's driving under the influence section. The
Tribal Code contains an implied consent provision that authorizes tribal officers to test
anyone who "operates a motor vehicle upon the public highways within the [Nation's]
jurisdiction." Potawatomi Law and Order Code, Section 17-4-14 (2008). Under that
section, the tribal officer is authorized to administer the test "only after placing such
person under arrest and informing the person that he or she is or will be charged with the
offense of driving or being in actual physical control of a vehicle upon the public
highways while under the influence of intoxicating liquor or any drug." Potawatomi Law
and Order Code, Section 17-4-14(A). Rodewald submitted to a breath test on which he
scored an alcohol content of .046.

Inexplicably, Officer Hurla completed and mailed KDR's form DC-28, which is
required by Kansas law to certify a test result by a person less than 21 years of age who
scores .02 or greater but less that .08 on an alcohol breath test. See K.S.A. 8-1567a(d).
The form includes Officer Hurla's certification of the test result and his acknowledgment
that he provided Rodewald with all notices required by Kansas' implied consent law. See
K.S.A. 2007 Supp. 8-1001; K.S.A. 8-1567a(d) (identifying the oral and written notices
required under those sections). The form also recited that Rodewald was operating his
vehicle in Jackson County, Kansas, albeit the KDR does not appear to argue that the
Nation's reservation is a part of Jackson County.

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Rodewald properly requested and was given an administrative hearing, which was
held in Shawnee County. The hearing officer affirmed the administrative suspension of
Rodewald's license for violating 8-1567a, but also noted that Rodewald had raised the
issue of subject matter jurisdiction. Specifically, Rodewald argued that the KDR did not
have jurisdiction over the proceedings because K.S.A. 8-1567a only prohibits the
operation or attempt to operate a motor vehicle while under the influence "in this state,"
and Rodewald was operating his motor vehicle entirely within the sovereign boundaries
of the Nation's reservation.

Rodewald then filed a timely petition for judicial review of the suspension order.
Both parties filed motions for summary judgment and related responses. Although
multiple issues were raised, the district court recited the following in the issues section of
its memorandum decision:

"It would seem to the Court while the Petitioner, Rodewald, lists four separate
issues and the Department of Revenue only looks at one issue, they both agree on what
the Court sees as the sole issue in this case.
"That issue is if the administrative action taken by the Kansas Department of
Revenue pursuant to [K.S.A. 8-1567a] is valid for a Native American Indian driver who
is operating a motor vehicle solely within the boundaries of a federally recognized Indian
Reservation of which the driver is a member while being stopped by a Tribal Police
Officer.
"In plain English, it comes down to whether the action of the Native American
driver on a reservation after being stopped by a Tribal Officer can be used against him in
an administrative hearing which is completely removed from the Prairie Band
Potawatomi Nation. The Plaintiff believes the actions did not arise within this 'state' as
the PBPT is a sovereign nation."

Then, applying the familiar summary judgment standard, the district court granted
summary judgment in favor of KDR noting:
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"This case is close for either side. In reading the case decisions put forth by both
of the parties it is apparent to the Court most of the time the Courts have sided with the
[PBPN] as being a sovereign entity. As a sovereign entity they are not considered part of
the State of Kansas. However, the Court is very much aware of the competing issues in
this case and the importance of the State's interest in keeping impaired and drunk drivers
off the road. When looking at the State's interests in keeping the motoring public of the
entire state safe the Court must find it has preference to the welfare of the tribe and/or the
tribes right to self govern.
"The Court affirms the action of the State and denies the Plaintiff's petition."

Rodewald subsequently filed a timely notice of appeal. KDR filed a timely cross-
appeal of the district court's determination that the Nation's reservation was "not
considered part of the State of Kansas." Pursuant to K.S.A. 20-3018(c), this court
transferred the appeal from the Court of Appeals.

STATUTORY INTERPRETATION OF K.S.A. 8-1567a

The parties present us with the opportunity to become immersed in documents
outside our own statutes, such as the 1861 Act for the Admission of Kansas into the
Union, Congress' 1953 enactment of Public Law 280 and its 1968 amendments thereto, or
the Potawatomi treaties with the United States government in 1846, 1861, and 1867. But
KDR's authority to suspend Rodewald's license emanates from K.S.A. 8-1567a, and our
inquiry necessarily begins with that statute's language:

"(a) It shall be unlawful for any person less than 21 years of age to operate or
attempt to operate a vehicle in this state with a breath or blood alcohol content of .02 or
greater.
"(b) Whenever a law enforcement officer determines that a breath or blood
alcohol test is to be required of a person less than 21 years of age pursuant to K.S.A. 8-
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1001 or K.S.A. 8-2,142 and amendments thereto, in addition to any other notices required
by law, the law enforcement officer shall provide written and oral notice that: (1) It is
unlawful for any person less than 21 years of age to operate or attempt to operate a
vehicle in this state with a breath or blood alcohol content of .02 or greater; and (2) if the
person is less than 21 years of age at the time of the test request and submits to and
completes the test or tests and the test results show an alcohol concentration of .02 or
greater, but less than .08, on the person's first occurrence, the person's driving privileges
will be suspended for 30 days and on the person's second or subsequent occurrence, the
person's driving privileges shall be suspended for one year.
"(c) Any suspension and restriction of driving privileges pursuant to this section
shall be in addition to any disqualification from driving a commercial motor vehicle
pursuant to K.S.A. 8-2,142 and amendments thereto.
"(d) Whenever a breath or blood alcohol test is requested pursuant to K.S.A. 8-
1001 and amendments thereto, from a person less than 21 years of age, and results in a
test result of .02 or greater, but less than .08, a law enforcement officer's certification
under this section shall be prepared. The certification required by this section shall be
signed by one or more officers to certify that:
(1)(A) There existed reasonable grounds to believe the person was operating a
vehicle while under the influence of alcohol or drugs, or both, or to believe that the
person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128 and
amendments thereto, while having alcohol or other drugs in such person's system; (B) the
person had been placed under arrest, was in custody or had been involved in a vehicle
accident or collision; (C) a law enforcement officer had presented the person with the oral
and written notice required by K.S.A. 8-1001 and amendments thereto, and the oral and
written notice required by this section; (D) that the person was less than 21 years of age
at the time of the test request; and (E) the result of the test showed that the person had an
alcohol concentration of .02 or greater in such person's blood or breath.
(2) With regard to a breath test, in addition to those matters required to be
certified under subsection (d)(1), that: (A) The testing equipment used was certified by
the Kansas department of health and environment; (B) the testing procedures used were
in accordance with the requirements set out by the Kansas department of health and
environment; and (C) the person who operated the testing equipment was certified by the
Kansas department of health and environment to operate such equipment.
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"(e) If a hearing is requested as a result of a law enforcement officer's
certification under this section, the scope of the hearing shall be limited to whether: (1)
A law enforcement officer had reasonable grounds to believe the person was operating a
vehicle while under the influence of alcohol or drugs, or both, or to believe that the
person had been driving a commercial motor vehicle, as defined in K.S.A. 8-2,128 and
amendments thereto, while having alcohol or other drugs in such person's system; (2) the
person was in custody or arrested for an alcohol or drug related offense or was involved
in a motor vehicle accident or collision resulting in property damage, personal injury or
death; (3) a law enforcement officer had presented the person with the oral and written
notice required by K.S.A. 8-1001 and amendments thereto, and the oral and written
notice required by this section; (4) the testing equipment used was reliable; (5) the person
who operated the testing equipment was qualified; (6) the testing procedures used were
reliable; (7) the test result determined that the person had an alcohol concentration of .02
or greater in such person's blood or breath; (8) the person was operating a vehicle; and (9)
the person was less than 21 years of age at the time a test was requested.
"(f) If a person less than 21 years of age submits to a breath or blood alcohol test
requested pursuant to K.S.A. 8-1001 or K.S.A. 8-2,142 and amendments thereto, and
produces a test result of .02 or greater, but less than .08, on the person's first occurrence,
the person's driving privileges shall be suspended for 30 days and then restricted as
provided by K.S.A. 8-1015, and amendments thereto, for an additional 330 days, and on
the person's second or subsequent occurrence, the person's driving privileges shall be
suspended for one year.
"(g) Except where there is a conflict between this section and K.S.A. 8-1001 and
8-1002 and amendments thereto, the provisions of K.S.A. 8-1001 and 8-1002 and
amendments thereto, shall be applicable to proceedings under this section.
"(h) Any determination under this section that a person less than 21 years of age
had a test result of .02 or greater, but less than .08, and any resulting administrative action
upon the person's driving privileges, upon the first occurrence of such test result and
administrative action, shall not be considered by any insurance company in determining
the rate charged for any automobile liability insurance policy or whether to cancel any
such policy under the provisions of subsection (4)(a) of K.S.A. 40-277 and amendments
thereto." K.S.A. 8-1567a.

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Standard of Review

Our standard and accompanying rules for reviewing summary judgments is well
settled:

"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as
a matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and where we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied. [Citations omitted.]' Shamberg, Johnson & Bergman, Chtd. v. Oliver,
289 Kan. 891, 900, 220 P.3d 333 (2009)." Scott v. Hughes, 294 Kan. 403, 411, 275 P.3d
890 (2012).

Here, we will need to interpret and construe statutory provisions, which presents a
question of law subject to de novo review. See Hughes, 294 Kan. at 412.

Analysis

Rodewald argues simply that the state of Kansas has no civil jurisdiction over the
conduct of a Native American while on his or her tribe's reservation. Accordingly, he
asks for a dismissal of the administrative proceedings because KDR lacked jurisdiction to
sanction him for his driving on the reservation.

The KDR's brief, on the other hand, contains considerable more detail. It sets forth
KDR's response to the petitioner's statement of the nature of the case; a response to
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petitioner's statement of facts; a response to petitioner's statement of the issue; a response
to petitioner's statement of the standard of review; and a response and rebuttal to
petitioner's arguments and authorities. The brief also shares KDR's additional statement
of facts, additional standards, and an alleged limitation of issues, before setting forth
KDR's own arguments and authorities, which touch on several fronts. Utilizing our best
efforts at distilling those arguments into a workable format, we discern that the KDR is
relying on three bases of jurisdiction to suspend Rodewald's Kansas driver's license: (1)
K.S.A. 8-1567a did not require the KDR to prove that Rodewald was driving within the
state of Kansas in order to suspend his Kansas license for driving with a BAC greater
than .02; (2) the Nation's reservation is within the state of Kansas; and/or, (3) the KDR's
"very real interest . . . in combating drunk driving" invests it with jurisdiction as a matter
of public policy to suspend a Kansas driver's license for conduct occurring on the
Nation's reservation. We address each basis in turn.

KDR jurisdiction to suspend is without geographical limitation

KDR recites the applicable provision of our implied consent law which sets forth
the parameters of the deemed consent:

"Any person who operates or attempts to operate a vehicle within this state is
deemed to have given consent, subject to the provisions of this act, to submit to one or
more tests of the person's blood, breath, urine or other bodily substance to determine the
presence of alcohol or drugs." (Emphasis added.) K.S.A. 2007 Supp. 8-1001(a).

Likewise, the agency acknowledges that the statute under which it suspended Rodewald's
driver's license specifies a geographical or jurisdictional limitation, to-wit: "It shall be
unlawful for any person less than 21 years of age to operate or attempt to operate a
vehicle in this state with a breath or blood alcohol content of .02 or greater." (Emphasis
added.) K.S.A. 8-1567a(a). But KDR contends that Furthmyer v. Kansas Dept. of
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Revenue, 256 Kan. 825, 888 P.2d 832 (1995), instructs us that K.S.A. 8-1001(a) contains
merely prefatory language that does not in any way limit the provisions found elsewhere
in the implied consent law. Therefore, KDR believes that its authority to suspend a
driver's license under K.S.A. 8-1567a(f) is not limited to persons driving in Kansas. We
cannot discern such a lesson from Furthmyer's holding.

In Furthmyer, a police officer observed a vehicle sitting at a stop sign for an
inordinate amount of time. Upon approaching the vehicle, the officer found Furthmyer
slumped over the steering wheel, either asleep or passed out, with his foot on the brake
while the vehicle was running and in gear with the vehicle's headlights illuminated.
Furthmyer effectively refused a breath test with an insufficient sample, and the KDR
suspended his driver's license for 1 year for that test refusal. Upon appeal of the
suspension, Furthmyer did not challenge the fact that the police officer had reasonable
grounds to believe that Furthmyer was operating or attempting to operate his vehicle
while under the influence of alcohol. Rather, Furthmyer argued that the KDR had to go
one step further and prove that the police officer's belief was accurate, i.e., Furthmyer
was actually operating or attempting to operate the vehicle.

First, the Furthmyer court reiterated that the purpose of the implied consent law is
to coerce a driver's submission to chemical testing through the threat of statutory
penalties, including license revocation for refusing the test, and that the mandatory
language of K.S.A. 8-1001(b) required the law enforcement officer to request testing. 256
Kan. at 835. Then, the court pointed out that K.S.A. 8-1002(h)(1) (Furse 1991) limited
the issues which could be considered in refusal cases and noted that a determination of
actual operation or attempted operation was not a listed issue. 256 Kan. at 835. Pointedly,
the Furthmyer holding relied in part on the fact that K.S.A. 8-1002(h)(2) (Furse 1991),
which applies to chemical test failure cases, specifically listed the question of whether the
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licensee was actually operating a vehicle. Therefore, the Furthmyer court opined a
legislative intent to treat test refusal cases differently than test failure cases, so that

"when a blood alcohol test is refused, the KDR need only prove a law enforcement
officer had reasonable grounds to believe the person was operating or attempting to
operate a motor vehicle while under the influence of alcohol or drugs and not that the
person had actually operated or attempted to operate the motor vehicle." 256 Kan. at 836.

Furthmyer is obviously factually distinguishable. We are not presented with a test
refusal here; this is a test failure case. Indeed, KDR could not have suspended
Rodewald's license under K.S.A. 8-1567a(f) unless he had submitted to a breath or blood
alcohol test, because the touchstone for suspension under that provision is a test result of
.02 or greater. Further, Furthmyer's vehicle was obviously located within this state and in
a location where the arresting officer had jurisdiction to enforce Kansas law. The issue in
Furthmyer—whether the licensee was actually operating or attempting to operate the
vehicle—is not germane here because Rodewald was unquestionably operating his
vehicle when detained by the tribal officer.

But more importantly, we do not agree with KDR's assertion that Furthmyer
treated the language of K.S.A. 8-1001(a) as being merely precatory and, therefore,
ineffectual to limit any of the other provisions of the implied consent law. K.S.A. 2007
Supp. 8-1001(a) expresses a clear legislative directive that the implied consent law will
apply to "[a]ny person who operates or attempts to operate a vehicle within this state" and
that it is those persons who are "deemed to have given consent" to being tested for
alcohol or drugs. See Double M Constr. v. Kansas Corporation Comm'n, 288 Kan. 268,
271, 202 P.3d 7 (2009) (when statute plain and unambiguous, appellate court does not
speculate as to legislative intent behind it and will not read something into the statute not
readily found there). Furthmyer did not purport to expand the persons subject to the
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implied consent law beyond those meeting the 8-1001(a) definition. Rather, that case
merely clarified the proof necessary to establish a test refusal for a person who was
alleged to have operated or attempted to operate a vehicle within this state.

Further, K.S.A. 2008 Supp. 8-1001(a) does not state that the implied consent is
restricted to those who possess a Kansas driver's license. Therefore, if one accepts the
KDR's argument that its authority to suspend a driver's license is not limited to those
persons driving within this state, it could arguably suspend the Alaskan driver's license of
an 18-year-old Alaskan resident who was driving on an Alaskan highway with an alcohol
content greater than .02. Obviously, that construction is nonsensical. See Herrell v.
National Beef Packing Co., 292 Kan. 730, 745, 259 P.3d 663 (2011) (statutes construed
to avoid unreasonable results). Moreover, the legislature knows how to specifically
address the authority of KDR to suspend or revoke a license based on conduct occurring
outside of this state. See K.S.A. 8-252 (suspension or revocation of resident's license
upon conviction in another state); K.S.A. 8-1219 (nonresident violator compact). Those
specific out-of-state conduct provisions are inapplicable here. Accordingly, we must find
that the legislature meant what it said; the implied consent law—and all of its
provisions—applies only to those who operate or attempt to operate a vehicle within this
state.

More specifically, the type of unlawful conduct for which KDR suspended
Rodewald's driver's license must occur in Kansas pursuant to the plain language of
K.S.A. 8-1567a(a), which makes it a crime for a person under age 21 to "operate or
attempt to operate a vehicle in this state with a breath or blood alcohol content of .02 or
greater." Rodewald's suspension was effected under subsection (f) of that same statute. A
harmonious reading of the entire statute convinces us that the legislature intended the
person subject to suspension under subsection (f) to have been operating within this state,
pursuant to the proscription in subsection (a). See Redd v. Kansas Truck Center, 291 Kan.
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176, 195, 239 P.3d 66 (2010) (an act is construed as a whole; various provisions of act
considered in pari materia to bring into workable harmony). In other words, the "in this
state" limitation is a condition precedent to suspension under K.S.A. 8-1567a(f).

Finally, we briefly address KDR's argument that K.S.A. 8-1501 provides that the
provisions of K.S.A. 8-1566 to K.S.A. 8-1568, inclusive, are applicable "upon highways
and elsewhere throughout the state." The argument appears to be that KDR has
jurisdiction over conduct on any public highway anywhere because such roads are
publicly maintained and not private property. Such logic does not comport with the fact
that the Nation has the authority to enforce tribal law on the roadways within its
reservation, publicly maintained or otherwise. KDR's jurisdiction over highways does not
extend beyond those highways which are situated within this state, i.e., those highways
over which a Kansas law enforcement officer would have jurisdiction.

Location of the Nation's reservation

KDR contends that if we find that it can only impose a K.S.A. 8-1567a(f)
suspension upon someone who has operated or attempted to operate a vehicle in this
state, then we should find that the Nation's reservation is within this state. KDR points
out that the reservation is circumscribed by the outer boundary lines of this state, placing
the reservation's physical location entirely within this state.

But Rodewald argues that the Nation's reservation, which was established by
treaty with the federal government in 1846, was specifically excepted from the Kansas
boundaries in the Act for the Admission of Kansas into the Union in 1861, which recited
in part:

"[N]othing contained in the said constitution respecting the boundary of said state shall
be construed to impair the rights of person or property now pertaining to the Indians of
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said territory, so long as such rights shall remain unextinguished by treaty between the
United States and such Indians, or to include any territory which, by treaty with such
Indian tribe, is not, without the consent of such tribe, to be included within the territorial
limits or jurisdiction of any state or territory; but all such territory shall be excepted out
of the boundaries, and constitute no part of the state of Kansas, until said tribe shall
signify their assent to the president of the United States to be included within said state,
or to affect the authority of the government of the United States to make any regulation
respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise,
which it would have been competent to make if this act had never passed." 12 Stat. 126,
ch. 20 § 1 (Jan. 29, 1861); K.S.A. Kan. Const. vol., p. 9 (1988).

KDR counters by pointing to cases in which reservation lands have been found to
be within this state for purposes of state taxation. See, e.g., Sac and Fox Nation of
Missouri v. Pierce, 213 F.3d 566, 577 (10th Cir. 2000) ("only those lands which Indian
tribes reserved unto themselves 'by treaty' with the United States" were exempted from
the boundaries of Kansas); United States v. Ward, 28 F. Cas. 397, 399 (D. Kan. 1863)
("all territory which was not covered by such treaties was included within the state,
within its jurisdiction and within its territory"); In re Tax Grievance Application of Kaul,
269 Kan. 181, 187, 4 P.3d 1170 (2000) (Kaul II) (allowing Kansas to impose ad valorem
taxes on individually owned land on the reservation). But cf. In re Tax Exemption
Application of Kaul, 261 Kan. 755, 769, 933 P.2d 717 (1997) (Kaul I) ("plain meaning
[of Act for Admission] appears more reasonably to state that all Indian land was to be
excluded from the boundaries of the state and not subject to taxation, unless it was
specifically included by treaty or an act of Congress"). Pointing to a Kansas Bar Journal
article written by a deputy attorney general, Miller, Tribal v. State Government: Drawing
the Lines, 70 J.K.B.A. 24, 25 (Jan. 2001), KDR contends our conflicting decisions should
be resolved by declaring that Kaul I was incorrectly decided and that the Nation's
reservation is within the boundaries of this state. We decline the invitation.

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Here, the State is not attempting to tax property. Rather, the KDR is performing a
regulatory function through a civil action. Generally, a state has no civil or criminal
jurisdiction over tribal members unless Congress has expressly said so. See California v.
Cabazon Band of Mission Indians, 480 U.S. 202, 207, 107 S. Ct. 1083, 94 L. Ed. 2d 244
(1987) ("state laws may be applied to tribal Indians on their reservations if Congress has
expressly so provided"). "The policy of leaving Indians free from state jurisdiction and
control is deeply rooted in the Nation's history." Rice v. Olson, 324 U.S. 786, 789, 65 S.
Ct. 989, 89 L. Ed. 1367 (1945). This policy stems from the concept of federal
preemption, which is undermined if states are allowed to assert control. See Worcester v.
Georgia, 31 U.S. 515, 561, 8 L. Ed. 483 (1832) ("[State intervention is] repugnant to the
constitution, laws and treaties of the United States. They interfere forcibly with the
relations established between the United States and the Cherokee nation, the regulation of
which . . . are committed exclusively to the government of the union.").

But states have not been denied all regulatory authority on tribal lands. See
Nevada v. Hicks, 533 U.S. 353, 361, 121 S. Ct. 2304, 150 L. Ed. 2d 398 (2001)

("[T]he Indians' right to make their own laws and be governed by them does not exclude
all state regulatory authority on the reservation. State sovereignty does not end at a
reservation's border. Though tribes are often referred to as 'sovereign' entities, it was 'long
ago' that 'the Court departed from Chief Justice Marshall's view that 'the laws of [a State]
can have no force' within reservation boundaries.").

In 1953, Congress enacted Public Law 280, which granted six states broad criminal and
limited civil adjudicatory jurisdiction over private disputes over all tribal lands within
each designated state. 18 U.S.C. § 1162 (2006); 28 U.S.C. § 1360 (2006). Essentially,
P.L. 280 authorized the transfer to those six states of the federal government's jurisdiction
over tribes to prosecute crimes and handle other private civil affairs. At the time P.L. 280
was enacted, Congress also granted the remaining states authority to assume civil and
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criminal jurisdiction over the tribes within their respective states. That power, however,
was limited by a 1968 Amendment requiring approval of the tribe before the state could
assume jurisdiction. Before the amendment, nine additional states—Nevada, Idaho, Iowa,
Washington, South Dakota, Montana, North Dakota, Arizona, and Utah—assumed
jurisdiction in at least some form over the tribes within their respective states. Garrison,
Baffling Distinctions Between Criminal and Regulatory: How Public Law 280 Allows
Vague Notions of State Policy to Trump Tribal Sovereignty, 8 J. Gender Race & Justice
449, 456 (Fall 2004).

The remaining 35 states—including Kansas—fall under the general rule that they
must obtain the express permission of the tribe or the federal government before they
may assert jurisdiction over tribal members or land. Congress has granted the state of
Kansas criminal jurisdiction "over offenses committed by or against Indians on Indian
reservations." 18 U.S.C. § 3243 (2006). That provision has been interpreted as meaning
that "Kansas has jurisdiction over non-major state offenses committed by or against
Indians on Indian reservations located in the State of Kansas." Iowa Tribe of Indians v.
State of Kan., 787 F.2d 1434, 1440 (10th Cir. 1986). But there is no similar provision for
civil matters. See Burdett v. Harrah's Kansas Casino Corp., 260 F. Supp. 2d 1109, 1116-
17 (D. Kan. 2003) (18 U.S.C. § 3243 does not authorize civil claims).

KDR concedes that Kansas is not a P.L. 280 state and has not been granted civil
jurisdiction over causes of action involving tribal members on their reservation. But the
agency suggests that an administrative suspension of a person's driver's license is not a
"cause of action" within the meaning of P.L. 280. Further, KDR argues that state
jurisdiction in this case has not been preempted by federal law, because the state law is
compatible with and does not interfere with the federal and tribal interests. But its
reliance on Cabazon to make that point is suspect, given that California is a P.L. 280 state
that has been granted civil jurisdiction. Nevertheless, even in P.L. 280 states, the inquiry
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into federal preemption "is to proceed in light of traditional notions of Indian sovereignty
and the congressional goal of Indian self-government, including its 'overriding goal' of
encouraging tribal self-sufficiency and economic development. " Cabazon, 480 U.S. at
216.

But in this opinion, we need not determine whether the state of Kansas is
precluded from ever exercising civil regulatory authority over a tribal member's conduct
while on the Nation's reservation. The matter is governed by statute and our reading of
the Kansas implied consent laws in general, and K.S.A. 8-1567a in particular, convinces
us that the phrases "within this state" and "in this state" were not meant to include the
operation of vehicles on Native American reservations or on any other land over which a
Kansas law enforcement officer has no jurisdiction, such as military posts. That holding
ends our inquiry because "[a]ny authority claimed by an agency or board must be
conferred in the authorizing statutes either expressly or by clear implication from the
express powers granted." Ft. Hays St. Univ. v. University Ch., Am. Ass'n of Univ. Profs,
290 Kan. 446, 455, 228 P.3d 403 (2010).

As noted, K.S.A. 2007 Supp. 8-1001(a) declares that any person operating or
attempting to operate a vehicle within this state is deemed to have consented to being
tested for alcohol or drugs. The next subsection addresses the requirement placed on law
enforcement officers, directing, in relevant part, that

"[a] law enforcement officer shall request a person to submit to a test or tests deemed
consented to under subsection (a): [I]f the officer has reasonable grounds to believe the
person was operating or attempting to operate a vehicle while . . . under the age of 21
years while having alcohol or other drugs in such person's system,"

and the person was either under arrest or in custody for the alcohol-related offense or had
been in an accident resulting in damage or injury. (Emphasis added.) K.S.A. 2007 Supp.
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8-1001(b). Then, before the test is administered, the person must be given the oral and
written notices set forth in K.S.A. 2007 Supp. 8-1001(f). See State v. Luft, 248 Kan. 911,
Syl. ¶ 1, 811 P.2d 873 (1991) (notice provisions of 8-1001(f) mandatory, not merely
directory). If K.S.A. 8-1567a is applicable, subsection (b) of that statute speaks to a
breath or blood alcohol test being "required" pursuant to K.S.A. 2007 Supp. 8-1001 and
mandates that the law enforcement officer give additional written and oral notices.

Obviously, the explanatory oral and written notices play a significant role in our
system of implied consent, because the failure to give them leads to the suppression of
the results of the test to which the operator was deemed to have consented. Luft, 248 Kan.
911, Syl. ¶ 2. But a law enforcement officer of another jurisdiction, such as a military
policeman on Fort Riley or a tribal officer on the Potawatomi reservation, is not bound by
the mandates of the Kansas statutes requiring a request for testing in certain
circumstances and requiring the giving of written and oral notices before testing, even if
they might be aware of such Kansas requirements. KDR does not explain how the
requirement to request testing or to give oral and written notices prior to testing can be
enforced against law enforcement officers who are not within this state's jurisdiction, or
why the legislature would purport to place such requirements on persons over whom it
has no authority.

Continuing with the provisions of K.S.A. 8-1567a, the next step for law
enforcement officers is to prepare and sign a certification. K.S.A. 8-1567a(d). One or
more officers must certify to the existence of facts necessary to give rise to the deemed
consent; to the giving of the required notices; to the person being under age 21; and to the
results of the testing being .02 or greater. Again, KDR does not explain why the
legislature would expect out-of-state law enforcement officers to make such
certifications, when not legally required to do so. Indeed, how would Kansas have even
known that Rodewald failed the test on the reservation if the tribal officer had not
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gratuitously sent the certification to Kansas? Even if we grant KDR jurisdiction, it could
not exercise it consistently without an enforceable certification requirement. See Herrell,
292 Kan. at 745 (courts presume that legislature does not intend to enact meaningless
legislation).

Perhaps more importantly for this discussion, if a breath test is utilized, the law
enforcement officers must certify:

"(A) The testing equipment used was certified by the Kansas department of health and
environment; (B) the testing procedures used were in accordance with the requirements
set out by the Kansas department of health and environment; and (C) the person who
operated the testing equipment was certified by the Kansas department of health and
environment to operate such equipment." K.S.A. 8-1567a(d)(2).

Obviously, these safeguards cannot be met if the law enforcement agency involved in the
arrest and testing of a vehicle operator is not regulated, certified, or licensed by the
Kansas Department of Health and Environment. In other words, this portion of the law
clearly contemplates that the arresting officer will be a Kansas law enforcement officer.

Consequently, to employ a harmonious and consistent construction of the entire
implied consent act, one must interpret the phrases "within this state" and "in this state"
to mean within the jurisdiction of a Kansas law enforcement officer. That definition
would not include the roadways—either public or private—within the Nation's
reservation over which its tribal police have assumed jurisdiction to enforce tribal law. In
short, KDR did not have statutory authority to sanction Rodewald for violating K.S.A. 8-
1567a, and its suspension of his driver's license must be vacated.

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Public policy jurisdiction

Finally, KDR plays the public interest card, suggesting that we can grant
jurisdiction in this case simply to allow it to perform its perceived function of combating
drunk driving. One might question whether the public policy interest involved here
belongs to the Nation, given that its laws provide for revoking driving privileges on the
reservation. Nevertheless, the Court of Appeals recently answered the public policy
argument quite succinctly: "A state court cannot confer jurisdiction upon itself for public
policy reasons." Bradley v. Bear, 46 Kan. App. 2d 1008, 1018, 272 P.3d 611 (2012). No
matter how noble it believes its mission to be, the KDR must derive its subject matter
jurisdiction from statutory authority. That authority simply does not exist here.

Accordingly, we reverse the district court's grant of summary judgment in favor of
the KDR and remand with directions to reinstate Rodewald's driver's license.

Reversed and remanded with directions.