Keweenaw Bay Indian Community v. State

• Decision Date: 14 December 1993
• Docket Number: No. 93-1118,93-1118
• Parties: KEWEENAW BAY INDIAN COMMUNITY, Plaintiff-Appellant, v. STATE of Michigan, the Michigan Natural Resources Commission; Department of Natural Resources; Thomas Newago; Alan Newago; Mike Peterson; Cecil Peterson; Gilmore Peterson; Duane Peterson; Earl Livingston; Jack Pero; Director, Michigan Department of Natural Resources, Defendants-Appellees, Donald Moore, Sr., Chairperson of the Bad River Band of Lake Superior Chippewa Indians; Patricia DePerry, Chairperson of the Red Cliff Band of Lake Superior Chippewa Indians, Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1341

11 F.3d 1341

27 Fed.R.Serv.3d 1139

KEWEENAW BAY INDIAN COMMUNITY, Plaintiff-Appellant, v. STATE of Michigan, the Michigan Natural Resources Commission; Department of Natural Resources; Thomas Newago; Alan Newago; Mike Peterson; Cecil Peterson Gilmore Peterson; Duane Peterson; Earl Livingston; Jack Pero; Director, Michigan Department of Natural Resources Defendants-Appellees Donald Moore, Sr., Chairperson of the Bad River Band of Lake Superior Chippewa Indians; Patricia DePerry Chairperson of the Red Cliff Band of Lake Superior Chippewa Indians, Defendants.

No. 93-1118.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 12, 1993.

Decided Dec. 14, 1993.

Joseph P. O'Leary (argued and briefed), Baraga, MI, for plaintiff-appellant.

Thomas J. Emery, Kevin T. Smith, Asst. Atty. Gen., Office of the Atty. Gen., Natural Resources Div., Lansing, MI, for State of Mich., Natural Resources Com'n, Department of Natural Resources and Director, Michigan Dept. of Natural Resources.

James M. Jannetta (argued and briefed), Sault Ste. Marie, MI, for Thomas Newago, Alan Newago and Jack Pero.

Frances L. Wells (briefed), Missoula, MT, for Mike Peterson, Cecil Peterson, Gilmore Peterson, Duane Peterson and Earl Livingston.

Before: MARTIN and SUHRHEINRICH, Circuit Judges; and CELEBREZZE, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Keweenaw Bay Indian Community appeals the district court's dismissal of its complaint for failure to join an indispensable party in this action to enforce fishing rights pursuant to an 1842 treaty. 152 F.R.D. 562. We affirm.

I

Keweenaw Bay Indian Community, a band of Chippewa Indians in Michigan, initiated this action "to protect and preserve the lake trout fishery resource in the Michigan waters of Lake Superior within the territory ceded to the Lake Superior Chippewa in the Treaty of 1842, in order to insure fulfillment of the Tribe's treaty-reserved fishing rights." Complaint at p 1. The Community named three groups as defendants, contending that they contributed to the decline of the lake trout population by overharvesting, overstocking other competitive salmonid species, and failing to regulate lake trout resources properly. The named defendants are: the State of Michigan, the Michigan Natural Resources Commission, the Department of Natural Resources and its director; five individual members of the Red Cliff Band of Chippewa Indians; and three individual members of the Bad River Band of Chippewa Indians.

The Community, the Bad River Band, and the Red Cliff Band are all successors in interest to bands of Lake Superior Chippewa who signed the United States Treaty with the Chippewa of 1842. In dividing the annuity payments due the various signatories to the treaty, Article V states that "the whole country between Lake Superior and the Mississippi, has always been understood as belonging in common to the Chippewas." (Emphasis added). In its complaint, the Community alleges that, the language of the treaty notwithstanding, the Chippewas have never regarded natural resources, including fishing rights, to be shared in common, even among different bands of its tribe. Accordingly, the Community contends that it has the exclusive right to certain "home waters" around its reservation at Lake Superior in Michigan, and that it must consent to any fishing by others therein.

The Community was approached by the Red Cliff and Bad River bands many times between 1973 and 1983 for permission to fish in the Michigan waters of Lake Superior. The Community consistently denied such permission and the bands respected these denials. In 1985, however, the Community agreed to allow fishermen from the two bands to fish in the waters, provided that these individuals complied with the Community's regulations and fished only west of the Keweenaw Peninsula. The fishermen refused to abide by the regulations, and in 1986, after an allegedly coercive and unfair meeting, the three bands signed an agreement allowing Bad River and Red Cliff fishermen into the Community's alleged "home waters" unrestricted by Community regulations. The agreement was renewed once and remained effective until 1988. In 1988, the Community elected a new tribal chairperson, who was allegedly coerced into signing a commercial fishing agreement with the bands, which allowed them to fish in the Community's "home waters" until 1990. In 1990, the Community refused to sign another agreement and withdrew permission for the other two bands to fish in the Michigan waters. The Bad River and Red Cliff bands subsequently signed a bilateral agreement authorizing themselves to fish in the Michigan waters.

The Community then filed a three-count complaint, which names individual members of the two bands as defendants. The Community, however, did not bring suit against the Red Cliff or Bad River bands themselves. Count I of the complaint requests that the court recognize the existence of the Community's treaty-reserved right to fish for commercial and subsistence purposes in the disputed waters, and declare that the State defendants have no authority to regulate these activities. Count II requests that the court sanction the Community's Fisheries Management Plan and enjoin policies and/or fishing activities of the defendants and their licensees that are incompatible with the Community's treaty fishing rights and management plan. Count III requests that the court declare that the Community is entitled to a designated share of the sustainable yields of the fishery resource in the disputed waters. In addition to these counts, the Community makes various specific requests for relief. The Community then sought to file an amended complaint, in which it requested that the court protect and preserve the Community's right to its "home waters," interpret the 1842 treaty so as to determine the extent of the Community's fishing rights, and enjoin the State from imposing regulations conflicting with the rights provided for by the treaty.

The State filed an answer, asserting a counterclaim against the Community and the Red Cliff and Bad River bands themselves. The counterclaim sought a declaration of the respective fishing rights of all of the bands, and a declaration that the bands' aggregate interest did not exceed 50% of the total lake trout harvest. The individual Red Cliff and Bad River fishermen filed a motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(7) and 19, for failure to join indispensable parties, namely the Red Cliff and Bad River bands. The district court's opinion focused exclusively on the Rule 19 issue.

First, the district court found that the Red Cliff and Bad River bands were necessary parties under either prong of Rule 19(a). The court noted that under Rule 19(a)(1), any relief granted to the Community or Michigan in this action would be hollow, as the absent bands also had an interest in fishing rights under the treaty and could continue to fish in the Michigan waters because the judgment in this dispute would have no effect on them. The court also found the absent bands to be necessary parties under Rule 19(a)(2). The court first determined that the bands had a protected interest in the fishing resource, as a result of the "in common" language of Article V of the treaty. This legally protected interest, the court reasoned, would be impaired or impeded by a judgment in this case. Moreover, the court noted that disposition of the case without the absent bands would leave the State defendants subject to the risk of incurring multiple or inconsistent obligations, as any judgment obtained by the Community would not bind the other bands, and would result in the State facing inconsistent regulatory obligations, as well as future lawsuits.

Having determined that the Red Cliff and Bad River bands were necessary parties, the court then considered whether they were also indispensable parties under Rule 19(b). First, the court noted that the bands could not be joined in the litigation because they possess tribal sovereign immunity, which they had not waived. Weighing the four factors enumerated in Rule 19(b), the court then concluded that the bands were in fact indispensable. The court further denied the Community's motion to file an amended complaint, on the ground that the allegations in the new complaint continued to implicate the rights of the Red Cliff and Bad River bands, and thus the new complaint suffered from the same lack of indispensable parties as the original complaint. The Community was given thirty days in which to file a complaint as to the State defendants only, which it failed to do. Accordingly, the district court dismissed the case. The Community subsequently filed a motion for reconsideration under Federal Rule of Civil Procedure 59(e), which was denied. The Community now appeals.

II

Keweenaw Bay Indian Community alleges that the district court erred in: (1) concluding that the absent bands were indispensable parties; (2) failing to consider claims set forth in the Community's proposed amended complaint; and (3) failing to consider the Community's request for a preliminary injunction. We address each of these alleged errors in turn.

This Court has previously stated that the resolution of the question of joinder under Rule 19, and thus of dismissal for failure to join an indispensable party under Rule 12(b)(7), involves a three-step process. Local 670 v. International Union, United Rubber, Cork, Linoleum and Plastic Workers of America, 822 F.2d 613, 618 (6th Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 731, 98 L.Ed.2d 679 (1988). The court must first determine whether a person is necessary to the action and should be joined if possible. Rule 19(a) describes this initial analysis as follows:

(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall...