The Wisconsin Supreme Court on June 23 ruled 4-3 in favor of the Menominee Tribe of Wisconsin against the Legend Lake Property Owners Association, upholding tribal sovereign immunity and dismissing the association’s lawsuit.
“Today’s decision provides finality to the parties and acknowledges that factual circumstances have changed since the filing of the of the complaint … We acknowledge that a fundamental commitment of Indian law is judicial respect for Congress’ primary role in defining the contours of tribal sovereignty,” Justice Susan Crawford said.
In 2018, the Legend Lake Property Owners Association sued the Menominee Tribe and tribal member Guy Keshena alleging that Keshena acquired title to more than 30 parcels, totaling 21.35 acres, in 2017 within the Legend Lake development. Keshena acquired the properties with tribal authorization to place them into federal tribal trust.
The association argued that the parcels were bound by restrictive covenants — agreed upon in 2009 — which prohibit properties from being removed from the county tax rolls and require the land to be governed by association bylaws.
The tribe asserted tribal sovereign immunity and argued that placing the land into a federal trust was protected under the Menominee Restoration Act, rendering the association’s restrictive covenants unenforceable on sovereign tribal land.
“We are pleased with the Wisconsin Supreme Court’s decision confirming our sovereign immunity,” the tribe posted on social media. “Tribal sovereign immunity is a well-established principle of federal Indian law and a vital aspect of tribal sovereignty. The Tribe appreciates the Court’s careful consideration and confirmation that dismissal of this case is the appropriate course of action.
“For generations, the Menominee people have worked hard to protect our homeland, our rights, and our future. We are glad our rights and these core principles have been recognized and respected.”
The justices took issue with the apparent intent of the restrictive covenants.
“The association unilaterally imposed the restrictive covenants on the Legend Lake parcels in 2009 in an effort to prevent the tribe from restoring any of the property to its reservation,” Crawford said. “The tribe never affirmatively agreed to waive its sovereign immunity in state court actions regarding the restrictive covenants.”
In her dissent, Justice Rebecca Bradley accused the majority of handing the tribe a sword with which it can “seize property with impunity.”
The Wisconsin Supreme Court found that sovereign immunity protects the tribe from being sued in state court to enforce these covenants, legally recognizing the land’s transition into trust status.
Keshena knew about the covenants when he purchased the property. The tribe also knew about the covenants but still petitioned the Bureau of Indian Affairs to take the properties into tribal trust, which the BIA did.
In 2018, the BIA’s Midwest regional director authorized the transfer of the properties into tribal trust status. The association appealed that decision, which was later upheld by the Interior Board of Indian Appeals.
The association contended that its members’ property values would be reduced if the interior board decision stands and the owners would be left without the protections of the covenants.
When the tribe was stripped of federal recognition in the 1960s, it sold thousands of acres to reduce its debts, including property that would later be used for the Legend Lake development.
The association was created in 1972, and membership is mandatory for all property owners.
When federal recognition for the tribe was restored in 1973, Congress’ Restoration Act allowed the tribe to recover its lost land.
Since restoration, the tribe has gradually returned much of the land — including parts of the development — to federal trust status, reestablishing most of the county as a modern reservation.
Today, about 99% of the land in Menominee County is held in trust, and those living on that land do not pay property taxes. That means the 1% of land owned by others supports county operations as well as the Menominee Indian School District.
With fewer and fewer landowners, the tax burden is rising for those who remain, the property owners association contends.
The association argued Congress’ Restoration Act abrogated the tribe’s sovereign immunity and that the Menominee Nation waived its immunity in several ways, including when Keshena accepted deeds to the properties after the association updated its bylaws with restrictive covenants.
The justices rejected the association’s arguments.
“Tribal sovereign immunity is the rule, not the exception,” the court said. “A litigant can overcome tribal sovereign immunity if Congress abrogates it or if a tribe clearly waives it. Neither occurred here. Nor does the Association persuade us that … exceptions defeat a tribe’s sovereign immunity from suit.”
kpasson@newmedia-wi.com
