Wisconsin Winnebago Business Committee v. Koberstein
Decision Date | 29 May 1985 |
Docket Number | Nos. 84-1768,84-1863,s. 84-1768 |
Parties | WISCONSIN WINNEBAGO BUSINESS COMMITTEE, Plaintiff-Appellee, Cross-Appellant, v. John P. KOBERSTEIN & Ho-Chunk Management Corporation, Defendants-Appellants, Cross-Appellees. |
Court | U.S. Court of Appeals — Seventh Circuit |
Douglas B.L. Endreson, Sonosky, Chambers, Sachse & Guido, Washington, D.C., for Wis. Winnebago Business.
John P. Koberstein, Madison, Wis., pro se.
Before BAUER, COFFEY, and FLAUM, Circuit Judges.
The defendants, John P. Koberstein and the Ho-Chunk Management Corporation, 1 appeal the determination of the district court that its Bingo Management Agreement with the Wisconsin Winnebago Business Committee is null and void under 25 U.S.C. Sec. 81. We affirm.
On July 9, 1983, the Wisconsin Winnebago Business Committee ("Business Committee"), the governing body of the federally recognized Wisconsin Winnebago Tribe ("Tribe"), hired Koberstein, the defendant, as its tribal attorney. At Koberstein's suggestion, the Tribe entered into a Bingo Management Agreement ("Agreement") with the co-defendant, the Ho-Chunk Management Corporation ("Ho-Chunk"), providing that Ho-Chunk would construct and manage a tribal bingo hall located near Lake Delton, Wisconsin. Koberstein is the president of the Ho-Chunk Management Corporation. Under the terms of the Agreement, Ho-Chunk was to receive $27,000 for preparing a proposal to be presented to the federal Department of Housing and Urban Development for federal funds and for supervising the construction of the hall. Ho-Chunk also was engaged under the terms of the contract for a five-year period "commencing the first day of operation of the Bingo Hall, to assist the [Business Committee] in obtaining financing, construct, improve, develope [sic], manage, operate and maintain the Property as a facility for the conduct of bingo games...." The Agreement granted Ho-Chunk the exclusive right to "operate and maintain the Property" as a tribal bingo hall and to control "all business and affairs in connection with the operation, management and maintenance of the Property." Furthermore, the Business Committee
The Agreement recited a legal description of the Property, located on tribal trust land, and allowed Ho-Chunk to record the Agreement "in any Public Record." Furthermore, the Agreement provided that the Business Committee "shall not act in any way whatsoever, either directly or indirectly to cause any party to become an encumbrancer of the Property subject to this Agreement without the prior written consent of [Ho-Chunk]." In return for providing management services, Ho-Chunk was to receive "25 percent of net operating profits for each fiscal year resulting from and in connection with any business activities upon the Property."
On August 23, 1983, Ho-Chunk submitted the Agreement and the Wisconsin Winnebago Business Committee resolution adopting the Agreement to the Bureau of Indian Affairs ("BIA") for approval under 25 U.S.C. Sec. 81. 25 U.S.C. Sec. 81 provides in relevant part:
Sometime during the second week of November, 1983, the Minnesota Area Office of the BIA requested an opinion from the Department of Interior's Office of the Field Solicitor concerning the Agreement. 2 On November 16, 1983, the Field Solicitor's Office advised the BIA that the Department of the Interior's approval was required only of contracts in which a "tribe purports to pay 'money or other thing of value' when such money or thing derives from amounts due to the tribe from the United States or is trust property or proceeds from trust property." Although the Field Solicitor found "[t]here is no doubt that the Agreement is related to lands of the Wisconsin Winnebago Tribe," section 81 did not apply because the funds Ho-Chunk was to receive were not "trust funds or proceeds of trust property." Ho-Chunk was not formally notified of this decision until February 28, 1984.
Sometime during the late summer or early fall of 1983, the Ho-Chunk Management Corporation directed that the construction of the Bingo Hall proceed even though it had not received a response from the BIA. On November 12, 1983, the same day that the Bingo Hall opened, the Business Committee voted to rescind the Agreement with Ho-Chunk. Some two weeks thereafter, on November 27, 1983, the Business Committee enacted an ordinance regulating bingo on tribal lands providing inter alia "No person shall engage in the operation of bingo games on Wisconsin Winnebago trust lands, unless duly licensed or permitted to do so by the Wisconsin Winnebago Tribe in accordance with the terms of this ordinance." 3 Even though the Bingo Management Agreement had been rescinded, Ho-Chunk, which had not applied to the Winnebago tribe for a bingo license, continued to operate the bingo enterprise.
On December 8, 1983, the Business Committee filed suit in the United States District Court for the Western District of Wisconsin to enjoin Ho-Chunk from operating bingo games on tribal trust lands on the Winnebago Reservation. The Business Committee alleged that the Agreement between Ho-Chunk and the Business Committee was void under 25 U.S.C. Sec. 81, and alternatively that Ho-Chunk's bingo operation violated the Tribe's Bingo Ordinance. Subsequently, the Business Committee moved for summary judgment. On April 2, 1984, the district court granted summary judgment holding that the Agreement was null and void since it had not been approved by the Department of Interior as required by 25 U.S.C. Sec. 81. Because the court "believe[d] that equity demands that defendants be given a period of time to cure the defect which mandated summary judgment against them or to resolve its responsibilities in an orderly fashion," it declared that the Agreement would become null and void effective June 30, 1984. 4 Additionally, the district court found that the bingo ordinance The Court concluded that it could The parties raise three issues on appeal: (1) whether the Bingo Management Agreement must be submitted for approval to the Secretary of the Interior pursuant to 25 U.S.C. Sec. 81; (2) whether the Ho-Chunk Management Corporation relied on the Field Solicitor's opinion that Sec. 81 did not apply to the Bingo Management Agreement; and (3) whether the Bingo Management Agreement could bar application of the tribal licensing ordinance to Ho-Chunk.
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