698 F.2d 1323 (7th Cir. 1983), 81-2868, State of Wis. v. Baker

Docket Nº:81-2868, 81-2916.
Citation:698 F.2d 1323
Party Name:STATE OF WISCONSIN, Plaintiff-Appellee, Cross-Appellant, v. Odric BAKER, et al., Defendants-Appellants, Cross-Appellees.
Case Date:January 26, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1323

698 F.2d 1323 (7th Cir. 1983)

STATE OF WISCONSIN, Plaintiff-Appellee, Cross-Appellant,

v.

Odric BAKER, et al., Defendants-Appellants, Cross-Appellees.

Nos. 81-2868, 81-2916.

United States Court of Appeals, Seventh Circuit

January 26, 1983

Argued Sept. 14, 1982.

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[Copyrighted Material Omitted]

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Richard B. Collins, Native American Rights Fund, Boulder, Colo., for defendants-appellants, cross-appellees.

John D. Niemisto, Mary V. Bowman, Asst. Attys. Gen., Wisconsin Dept. of Justice, Madison, Wis., for plaintiff-appellee, cross-appellant.

Gene M. Potack, James M. Janetta, Kathryn L. Tierney, Howard J. Bichler, Wisconsin Judicare, Inc., Wausau, Wis., for amicus curiae.

Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and WEICK, Senior Circuit Judge. [*]

CUMMINGS, Chief Judge.

This case involves a jurisdictional dispute between the state of Wisconsin ("the State") and a band of American Indians. Each claims exclusive jurisdiction to regulate fishing and hunting by the general public in certain navigable lakes in Wisconsin. After a bench trial on the merits, the district court upheld the State's claim and granted declaratory and injunctive relief against defendant officials of the band. Defendants appeal from that final judgment; the State cross-appeals from four findings in the district court's opinion reported in 524 F.Supp. 726. For the reasons that follow, we affirm.

In 1848 Wisconsin became a state. Six years later the United States signed a treaty with the Chippewa Indians of Lake Superior and the Mississippi River. The terms of that treaty provided for the cession by the Chippewas of some seven million acres of land in northeast Minnesota in exchange for a promise by the United States "to set apart and withhold from sale, for the use of the Chippewas" certain tracts of land in Wisconsin and Michigan estimated as totalling roughly four hundred and eighty thousand acres. United States v. Bouchard, 464 F.Supp. 1316, 1331-1332 (W.D.Wis.1978). One of these tracts "equal in extent to three townships" (69,120 acres) was to be situated near a lake in northern Wisconsin known as "Lac Courte Oreilles." The band of Chippewas that settled on this tract is, appropriately enough, known as the Lac Courte Oreilles Band of Lake Superior Chippewa Indians ("the Band"). Defendants-appellants are officials of the Band.

The 1854 treaty did not fix the precise boundaries of the Band's reservation. Instead, the treaty provided that "the boundaries of [the Band's reservation] shall be hereafter agreed upon or fixed under the direction of the President [of the United States]." It was not until 1873 that a list of the parcels of land comprising the reservation was finally agreed upon and not until 1876 that the outer boundaries of the reservation were surveyed and fixed. Of the 69,120 acres of land in the 1873 list, the Band presently owns some 24%; individual members of the Band 39%; and non-members of the Band 37%.

Pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. Sec. 461, 48 Stat. 984, the Band has enacted its own constitution. The constitution establishes a governing board ("the Governing Board") whose members are elected by the Band. Article 7 of the constitution empowers the Governing Board "to regulate, by enactment of ordinances, the activities of hunting, fishing,

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ricing, trapping, or boating by members and non-members of [on] all lands and waters" within the Band's reservation.

In 1976, the Governing Board enacted a "Fishing, Hunting, Trapping, and Ricing Code" ("the Code"). Sections of the Code purport to restrict fishing and hunting in all waters within the Band's reservation. Violators are subject to fines of up to $500 and incarceration in the Band's jails for up to six months. 1 Three days after the Code's effective date, the State filed suit in a Wisconsin circuit court against members of the Governing Board. The State sought a declaratory judgment that defendants' enforcement of the Code against non-members of the Band infringed upon the general public's right to fish, hunt, and recreate in navigable state waters.

Defendants removed the suit to federal district court under 28 U.S.C. Sec. 1441 and the State moved for a preliminary injunction enjoining defendants from prohibiting non-members of the Band from fishing in certain navigable lakes without a license issued by the Band. The district court granted the State's motion on July 9, 1976 (App. 11a-12a), and some five years later, after a two-day bench trial, entered a final order awarding the State declaratory and permanent injunctive relief. The district court's final order declared that the State enjoys "exclusive jurisdiction to regulate hunting and fishing activities by non-members of [the Band] on and in the navigable waters lying within the outer boundaries of the [Band's] reservation" and that "[d]efendants enjoy no jurisdiction to regulate hunting and fishing activities by such non-members on and in such navigable waters" and permanently enjoined "defendants, their successors in office, their agents and employees from enforcing or attempting to enforce against any non-members of the [Band] on any navigable water[s] lying within the outer boundaries of the [Band's] reservation" the Code's fishing regulations. 524 F.Supp. at 735-736. This appeal and cross-appeal followed.

I. Federal Question Jurisdiction

Section 1441(a) of Title 28 of the U.S.Code permits removal to a federal district court of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction." Because there is no diversity of citizenship between the State and defendants--a state is not a citizen of a state for purposes of diversity jurisdiction, Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596--removal of this action to the court below was proper only if the State's cause of action "arises under the Constitution, laws, or treaties of the United States." 28 U.S.C. Sec. 1331(a). Neither party raised this issue before us, but after hearing oral argument we ordered the filing of supplemental briefs addressing the jurisdictional question. 2 After examining those briefs and the relevant case law, we are convinced that the district court had original subject matter jurisdiction over this suit.

In its complaint, the State asserts as trustee for its public two distinct property interests: (1) title to the beds underlying navigable Wisconsin lakes and (2) the right to enjoy free access to the waters of those lakes "for purposes of navigation, fishing, hunting, swimming, commerce, enjoyment of scenic beauty, and general recreation." Both interests are descendant from federal law. Prior to Wisconsin's admission into statehood, the United States held these

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same interests in trust for the public pursuant to a 1783 deed of cession by four of the original 13 states and the Northwest Ordinance of 1787. See 1783 Virginia Act of Cession; Northwest Ordinance, Act of July 13, 1787, art. IV; reenacted Aug. 7, 1789, Ch. 8, 1 Stat. 50; Pollard's Lessee v. Hagan, 44 U.S. (3 How.) 212, 11 L.Ed. 565. These interests passed to Wisconsin upon admission into the Union pursuant to the Wisconsin Enabling Act of 1846, 9 Stat. 56, and the Act of March 3, 1847, 9 Stat. 178. The State argues--and the district court implicitly held--that because the lineage of its existing property interests in navigable lakes originates in federal law, the State's claim that defendants are infringing those interests "arises under" federal law.

We disagree. That a right of property was at one time governed by federal law or first conveyed by the United States does not render a suit to enforce that right one "arising under" federal law. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 676-677, 94 S.Ct. 772, 781-82, 39 L.Ed.2d 73; Shulthis v. McDougal, 225 U.S. 561, 569-570, 32 S.Ct. 704, 706, 56 L.Ed. 1205; Joy v. City of Saint Louis, 201 U.S. 332, 341, 26 S.Ct. 478, 480, 50 L.Ed. 776; Shoshone Mining Co. v. Rutter, 177 U.S. 505, 507-508, 20 S.Ct. 726, 727, 44 L.Ed. 864. Only if federal law continues to govern the right, see Oneida Indian Nation, 414 U.S. at 676-677, 94 S.Ct. at 781-82, Joy, 201 U.S. at 342-343, 26 S.Ct. at 481, or if the suit is to decide whether the United States did, in fact, originally convey it, see Borax Consolidated, Ltd. v. City of Los Angeles, 296 U.S. 10, 22, 56 S.Ct. 23, 29, 80 L.Ed. 9; Smith v. Kansas City Title and Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577; does an action to enforce that right "arise under" federal law. "The federal nature of the right to be established is decisive--not the source of the authority to establish it." Puerto Rico v. Russell & Co., 288 U.S. 476, 483, 53 S.Ct. 447, 449, 77 L.Ed. 903. Were it otherwise, anyone claiming title to real estate in the western United States could bring suit in federal court since title to all lands in those parts of the nation is traceable to a federal grant or law. Shoshone Mining Co. v. Rutter, supra, 177 U.S. at 507, 20 S.Ct. at 726.

The suit before us is not to decide what property rights in navigable lakes Wisconsin acquired when it was admitted to the Union in 1848. For that matter, defendants concede that when Wisconsin became a state it acquired the rights it asserts in this suit. Rather, the State claims that it continues to hold in trust for the public the same property rights it acquired in 1848 and that defendants are infringing those rights. That claim "arises under" federal law, however, only if federal law continues to govern property rights in the beds and waters of navigable Wisconsin lakes. It does not. The grant of statehood to Wisconsin was a grant both of property rights and of sovereign power. In 1848...

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