Tribal Bar Admission Is Not “Admission in a State, Territory, or D.C.” Under SCR 40.04(1); Exam-Eligibility Denials Are Reviewable Under the Court’s Supervisory Authority

Introduction

In Joy Morris v. Board of Bar Examiners, the Wisconsin Supreme Court affirmed the Board of Bar Examiners’ (BBE) determination that a non-ABA law school graduate admitted to practice before a federally recognized tribal court does not meet the eligibility criteria of Supreme Court Rule (SCR) 40.04(1) to sit for the Wisconsin bar examination. The Court also clarified that, while it did not definitively decide whether the denial of permission to sit for the bar is an “adverse determination” under SCR 40.08(7), such denials are reviewable by the Court under its supervisory authority, with SCR 40.04(3m) serving as an instructive analogue.

The case centers on the interaction between Wisconsin’s bar admission rules, the sovereign status of tribal courts, and the distinct pathways to admission in Wisconsin (by examination vs. by proof of practice). It preserves the continuing vitality of In re Helgemo, 2002 WI 57, and confirms that any policy change to treat tribal admission like admission in a state, territory, or the District of Columbia must proceed through the Court’s rulemaking process, not case-by-case adjudication.

Case Background and Key Issues

Parties: Petitioner Joy E. Morris; Respondent Board of Bar Examiners (BBE).
Education: Morris graduated in August 2021 from Birmingham School of Law (Alabama), a non-ABA-approved law school.
Bar Attempts: She took the Alabama bar examination six times without passing and is not licensed in Alabama.
Tribal Admission: In September 2024, she passed the Yurok Tribal Court bar examination (Yurok Tribe; Klamath, California).
Application in Wisconsin: In May 2025, Morris sought to sit for the July 2025 Wisconsin bar exam. The BBE denied eligibility under SCR 40.04(1).

Morris petitioned the Wisconsin Supreme Court “[p]ursuant to SCR 40.08(7) and Wis. Stat. § 809.70,” requesting review and reversal of the BBE’s denial. She advanced two principal arguments:

Helgemo is no longer good law in light of the Court’s 2017 amendment to SCR 40.05 (admission by proof of practice) and Congress’s Tribal Law and Order Act of 2010.
The BBE wrongfully excluded a qualified applicant because: (a) her Alabama score would purportedly pass in Wisconsin; and (b) she holds a tribal bar admission (Yurok Tribal Court).

Summary of the Opinion

Jurisdiction/Reviewability: Without deciding whether eligibility denials are “adverse determinations” under SCR 40.08(7), the Court exercised review under its supervisory authority, finding SCR 40.04(3m) (testing accommodations) instructive. If denials of testing accommodations are reviewable, then denials of eligibility to sit for the exam should be reviewable as well. The Court cited In re Bar Admission of Jarrett, 2016 WI 39, to reaffirm its ultimate authority over bar admissions.
Merits: The BBE’s denial was affirmed. The Court held:
- Helgemo remains good law: tribal courts are “courts of separate sovereign nations,” not courts of “a state, territory, or the District of Columbia.”
- The 2017 amendment to SCR 40.05 (which now allows proof of practice with a federally recognized Indian tribe for admission on motion) does not alter SCR 40.04(1) eligibility for sitting the exam. If tribal practice were already encompassed, that amendment would have been unnecessary.
- The Tribal Law and Order Act of 2010 does not affect Wisconsin’s attorney licensure standards.
- Wisconsin does not administer the Uniform Bar Examination (UBE); therefore, Alabama scoring comparisons are irrelevant.
- On waiver (SCR 40.10): Morris apparently did not request a waiver from the BBE; even if implicitly raised, the record would not justify a waiver (non-ABA school, six unsuccessful Alabama attempts, and no record regarding the Yurok exam’s content or procedures).

Analysis

Precedents and Authorities Cited

In re Helgemo, 2002 WI 57, 253 Wis. 2d 82, 644 N.W.2d 912.
Helgemo addressed admission by proof of practice under SCR 40.05. At that time, 40.05 required practice “in the courts of the United States or another state or territory or the District of Columbia.” The Court held that practice in tribal courts could not be counted because tribal courts are “courts of separate sovereign nations,” not courts of the United States, a state, territory, or D.C. The present decision reaffirms Helgemo’s core holding about the status of tribal courts vis-à-vis Wisconsin’s bar admission rules.
2017 Amendment to SCR 40.05.
After Helgemo, the Court amended SCR 40.05(1)(b) in 2017 to recognize practice “in a state or territory, the federal government, the District of Columbia, or a federally recognized Indian tribe” for the three-in-five-year durational practice requirement for admission on proof of practice. The Court’s use of this amendment here is pivotal: it demonstrates that when the Court intends to recognize tribal practice in a given admission pathway, it says so explicitly. The absence of a parallel amendment in SCR 40.04 (exam eligibility) is dispositive against Morris’s position.
In re Bar Admission of Jarrett, 2016 WI 39, 368 Wis. 2d 567, 879 N.W.2d 116.
Jarrett confirms that the Wisconsin Supreme Court retains ultimate supervisory authority over bar admissions. The Court invokes this principle to review the BBE’s exam-eligibility denial notwithstanding uncertainty over whether such a denial is an “adverse determination” under SCR 40.08(7).
SCR 30.02.
Establishes that BBE members and staff act on behalf of the Supreme Court. This reinforces the Court’s supervisory responsibility for all steps in the bar admission process, including threshold exam-eligibility decisions.
SCR 40.08(7) and SCR 40.04(3m).
SCR 40.08(7) permits review of “adverse determinations” by the BBE. While the Court did not resolve whether a denial of permission to sit is such an “adverse determination,” it found SCR 40.04(3m) instructive: the latter expressly labels denials of testing accommodations as adverse and appealable. By analogy, denial of permission to sit is at least as consequential and thus reviewable under the Court’s supervisory authority.
Tribal Law and Order Act of 2010.
The Court found this federal statute, which targets public safety and criminal justice in Indian Country, irrelevant to Wisconsin’s attorney licensure rules.

Legal Reasoning

The Court’s reasoning is primarily textual and structural:

Text of SCR 40.04(1) controls. For graduates of non-ABA-approved schools, SCR 40.04(1)(b) requires that the law school’s graduates are eligible for the bar exam where the school is located and that the applicant has passed a bar exam and been admitted to practice in that or another “state, territory, or the District of Columbia.” The rule text contains no reference to tribal courts or tribal licensure.
Express inclusion vs. silence across rules. The 2017 amendment to SCR 40.05 explicitly added tribal practice for admission by proof of practice. In contrast, SCR 40.04 has not been similarly amended. The Court draws the familiar inference that express inclusion in one rule and silence in another are meaningful. If tribal admission or practice were already encompassed by SCR 40.04, the 2017 amendment to SCR 40.05 would have been redundant—yet it was deemed necessary and adopted.
Helgemo’s principle endures. The continued characterization of tribal courts as “courts of separate sovereign nations” maintains a bright-line distinction: “state, territory, or D.C.” does not include tribal jurisdictions for purposes of exam eligibility under SCR 40.04(1).
No federal preemption or statutory displacement. The Tribal Law and Order Act does not speak to state attorney licensure. The Court therefore rejects any argument that TLOA alters the state’s admission framework.
Practical claims do not rewrite rules. The contention that an Alabama bar score would pass in Wisconsin fails because Wisconsin does not administer the UBE and sets its own exam and scoring. Similarly, a tribal bar passage (Yurok) cannot be substituted where the rule text requires admission in a state, territory, or D.C.
Waiver (SCR 40.10) remains narrow and exceptional. The Court notes no waiver was requested, and that—on this record—good-cause and exceptional-case standards would not be met. This underscores the high bar for waivers and the BBE’s discretion in applying them.

Impact and Implications

For non-ABA graduates: This decision forecloses reliance on tribal court admission to satisfy SCR 40.04(1) and sit for the Wisconsin bar. Non-ABA graduates must still be admitted in a state, territory, or D.C. to qualify for the Wisconsin exam via the non-ABA pathway. Tribal admission does not substitute for that requirement.
On the status of tribal sovereignty in Wisconsin’s admission rules: The Court reaffirms that tribal courts are separate sovereigns for the purpose of interpreting bar admission rules unless and until the Court amends the rules to state otherwise. The 2017 accommodation in SCR 40.05 illustrates that recognition of tribal practice can be extended by explicit rulemaking—but is not implied across different admission pathways.
Procedural clarity: reviewability of BBE exam-eligibility denials. While not squarely holding that such denials are “adverse determinations” under SCR 40.08(7), the Court’s reliance on SCR 40.04(3m) and its supervisory authority signals that exam-eligibility denials are reviewable in this Court. This provides applicants a meaningful avenue to obtain judicial oversight of threshold eligibility rulings.
Policy pathway identified. The Court points the way: if stakeholders believe tribal admission should count for exam eligibility, the appropriate vehicle is a rule petition to amend SCR 40.04, as was done in 2016–2017 to amend SCR 40.05 via Rule Petition 16-09.
No UBE parity. The Court’s express note that Wisconsin does not administer the UBE dampens arguments attempting to import other jurisdictions’ scoring or passage equivalences into Wisconsin’s exam.
Waiver practice reinforced. The analysis implying no waiver on these facts suggests the BBE’s discretion will be upheld absent a compelling and well-documented showing of exceptional circumstances and injustice.

Complex Concepts Simplified

ABA accreditation vs. non-ABA schools: Wisconsin’s rules treat graduates of ABA-approved law schools differently from non-ABA schools. For non-ABA schools, the rule adds safeguards—namely, the applicant must be admitted to practice in a state, territory, or D.C.—before being allowed to sit for Wisconsin’s exam.
SCR 40.04 (exam route) vs. SCR 40.05 (proof-of-practice route):
- SCR 40.04 governs who may sit for Wisconsin’s bar exam.
- SCR 40.05 governs admission without examination based on recent, substantial legal practice. In 2017, it was amended to include practice with a federally recognized tribe.
- The present case is about 40.04, not 40.05. The 2017 change to 40.05 does not automatically apply to 40.04.
“State, territory, or the District of Columbia” does not include tribes: Tribal nations are separate sovereigns. Unless a rule expressly includes them (as 40.05 now does for proof-of-practice), they are not implied within references to state, territorial, or D.C. jurisdictions.
Supervisory authority and reviewability: The Wisconsin Supreme Court has ultimate authority over bar admissions and can review BBE determinations even where the appeal mechanism is uncertain. The Court cited the rule on testing accommodations (40.04(3m)) to analogize that denying permission to sit for the exam is likewise reviewable.
Uniform Bar Examination (UBE) vs. Wisconsin’s exam: Wisconsin administers its own bar exam. This means out-of-state scores or UBE conversions are not automatically relevant to Wisconsin’s bar passage standards unless the rules provide otherwise.
Waiver (SCR 40.10): The BBE may waive certain requirements “in exceptional cases and for good cause if failure to waive would be unjust.” This is a high threshold; the applicant bears the burden to request and justify a waiver with strong, case-specific evidence.

Conclusion

Morris cements two important points in Wisconsin’s bar admission law. Substantively, the Court holds that admission to a tribal bar—even one administered by a federally recognized tribe—does not satisfy the requirement in SCR 40.04(1) that a non-ABA graduate be admitted “in a state, territory, or the District of Columbia” to be eligible to sit for the Wisconsin bar exam. Helgemo remains authoritative on the separate-sovereign status of tribal courts, and the 2017 amendment to SCR 40.05 confirms that tribal recognition must be explicit and rule-specific.

Procedurally, the Court confirms that exam-eligibility denials are reviewable under its supervisory authority, taking guidance from the structure of SCR 40.04(3m) and reiterating the Court’s ultimate responsibility for regulating admission to the Wisconsin bar. Applicants and practitioners should infer that the proper vehicle for any expansion of eligibility criteria to include tribal admission is a rule petition to amend SCR 40.04. Absent such an amendment—or a compelling, well-supported waiver request under SCR 40.10—tribal admission will not open the exam door for non-ABA graduates in Wisconsin.

Key Takeaways

Admission to a tribal court is not “admission in a state, territory, or D.C.” under SCR 40.04(1).
Helgemo remains good law; tribal courts are separate sovereigns for Wisconsin’s admission rules unless explicitly included.
2017 changes to SCR 40.05 do not spill over to SCR 40.04; any change must be made by rule amendment.
Denials of permission to sit for the bar exam are reviewable by the Wisconsin Supreme Court under its supervisory authority.
Wisconsin does not use the UBE; other jurisdictions’ score equivalencies do not control Wisconsin’s exam standards.
Waivers under SCR 40.10 require an explicit request and a persuasive, exceptional showing; mere tribal admission and repeated bar failures elsewhere will not suffice on this record.