Bruette v. Sec'y of Interior & Stockbridge-Munsee Cmty.

• Decision Date: 20 September 2017
• Docket Number: Case No. 17-C-286
• Parties: FELIX J. BRUETTE, JR., Plaintiff, v. SECRETARY OF INTERIOR and STOCKBRIDGE-MUNSEE COMMUNITY, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

FELIX J. BRUETTE, JR., Plaintiff,
v.
SECRETARY OF INTERIOR and STOCKBRIDGE-MUNSEE COMMUNITY, Defendants.

Case No. 17-C-286

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

September 20, 2017

DECISION AND ORDER GRANTING MOTION TO DISMISS

Plaintiff Felix J. Bruette, Jr. brought this pro se civil action against the Secretary of the United States Department of Interior ("DOI")¹ and the Stockbridge-Munsee Community ("Community"), a federally recognized Indian tribe. Bruette brought this action asking the court to vindicate his right to be recognized as a historical tribe and prevent the Community from acting as a historical tribe. Bruette claims that Congress did not empower the Secretary with the authority to convey or allocate the rights or property of a historical tribe. ECF No. 1 at 2. Bruette also claims that, as the direct descendant of a Stockbridge-Munsee Tribe member who was part of the Treaty of 1856 between the United States and the Tribe,² he is entitled to a "direct inalienable right to hold

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the same together with all the rights privileges, immunities, and appurtenance of whatso ever nature." Id. at 3.

This, however, is not Bruette's first attempt to seek federal vindication of these rights. In 2014, Bruette filed a similar pro se civil action asking the court to recognize him, and other direct descendants, as a historical tribe. See Bruette v. Jewell, No. 14-CV-876, 2015 WL 5022591, at *1 (E.D. Wis. Aug. 24, 2015). The court found that Bruette had failed to provide a source of jurisdiction under which the court could hear Bruette's claims. Id. at *5 6. Additionally, the court found that the political question doctrine barred the court from entertaining Bruette's request seeking tribal recognition. Id. at *6. Therefore, the court dismissed Bruette's first attempt for lack of subject-matter jurisdiction. Id. at *7.

The case is currently before the court on the Secretary's motion to dismiss. The Secretary contends that Bruette has failed to state a claim under Fed. R. Civ. P. 12(b)(1) and (6) and moves to dismiss the claims. Specifically, the Secretary contends that Bruette's claims are barred by res judicata and the statute of limitations, and that this court does not have federal subject-matter jurisdiction over them. For the reasons set forth below, I conclude that, like Bruette's first case, this court lacks subject-matter jurisdiction over Bruette's claims and that his action must be dismissed in its entirety.

BACKGROUND

Some understanding of the history of the Stockbridge and Munsee Tribe in Wisconsin is required to understand Bruette's first lawsuit and current claims. Fortunately, that history has been recounted in two previous decisions concerning a dispute with the State of Wisconsin over the boundaries of the Tribe's reservation in western Shawano County. See Wisconsin v. Stockbridge-

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Munsee Community, 366 F. Supp. 2d 698 (E.D. Wis. 2004), aff'd, 554 F.3d 657 (7th Cir. 2009). A long and detailed version of that history appears in Magistrate Judge Patricia Gorence's decision granting the State's motion for summary judgment, and a more abridged version appears in the Seventh Circuit's decision affirming it. The abridged version of the abridged version appears in my order dismissing Bruette's first federal case and is sufficient for our purposes here.

I. History of the Stockbridge-Munsee Indians in Wisconsin

The Stockbridge-Munsee Indians are comprised of descendants of the Mohican Tribe who migrated westward and eventually arrived in Wisconsin in the 1820s. In 1856, the United States entered into a treaty and created a reservation for the Tribe consisting of two townships (Bartelme and Red Springs) in Shawano County, Wisconsin, some 40 miles northwest of Green Bay. Treaty with the Stockbridge and Munsees, Feb. 5, 1856, 11 Stat. 679. In 1871, Congress passed an act providing for the public sale of most of the land (with the proceeds to be distributed to or held in trust for tribal members), allotment of the remaining land to tribal members who elected to remain, and a new enrollment of the Tribe. Act of Feb. 6, 1871, ch. 38, 16 Stat. 404. Those entrusted with creating the tribal roll, however, excluded more than half the Tribe, including Bruette's ancestor. In 1893, in response to reports that the exclusion of many of the tribal members was obtained by fraud, Congress passed another act in an attempt to restore them to tribal membership. Act of Mar. 3, 1893, ch. 219, 27 Stat. 744. The 1893 Act required the Secretary of Interior to create a new roll of the Tribe to include all those who were or became members of the Tribe at the time of the Treaty of 1856 and their descendants who have not separated from the Tribe. The Act also provided that all members "who entered into possession of lands under the allotments of 1856 and 1871, and who by themselves or their lawful heirs have resided on said lands continuously since, are hereby declared

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to be owners of such lands in fee simple, in severalty, and the Government shall issue patents to them therefor." Id. In the event of a conflict between the allotments under the 1871 Act and the allotments of 1856, the 1893 Act provided that the latter shall prevail. Id. at 745.

It soon became apparent, however, that there would not be enough land for those who had claims under the 1893 Act. This is not surprising since the addition of those previously excluded increased tribal membership, while at the same time three-quarters of the Tribe's land had been sold in 1871. Although the enrollment was apparently completed, the allotment process proved difficult and was ultimately suspended pursuant to a Senate Resolution. See 1895 Annual Report of the Commissioner of Indian Affairs, ECF No. 12 25.

In 1900, with the DOI's approval, the Tribe presented Congress with a proposal to settle all of the United States' obligations to the Tribe under the Treaty of 1856, any act of Congress, or otherwise. The plan called for allotments of the unsold portion of the reservation and of additional land to be purchased by the United States, or cash in lieu of land. Unlike under previous laws, the proposed allotments would be alienable. Congress failed to act on the proposal for several years due to concern about how to fund the measure. See Stockbridge-Munsee Community, 554 F.3d at 661. Congress ultimately enacted the plan into law in 1906, with funding to come from the Tribe's treasury. See Act of June 21, 1906, ch. 3504, 34 Stat. 325, 382 83. Following these allotments, until the 1930s, the reservation was essentially treated as nonexistent. But in 1937, after the enactment of the Indian Reorganization Act of 1934, the Stockbridge-Munsee people organized the "Stockbridge-Munsee Community," a federally recognized Indian tribe residing on what remains of its 1856 reservation in Shawano County, where it is still located today.

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As part of becoming a federally recognized tribe again, the Community passed a constitution on November 18, 1937. Constitution and By-laws of the Stockbridge-Munsee Community, Nov. 18, 1937³. Article III of the Community's constitution defined membership as "all persons whose names appear on the Stockbridge Allotment Roll of 1910 and who are residing within the original confines of the Stockbridge Reservation . . . on the date of the adoption of this Constitution." Id. It also stated that the "Tribal Council shall have authority to promulgate ordinances . . . governing the adoption of new members . . . ." Id. In 1940, the tribal council did just that and promulgated a membership ordinance that declared:

All persons of Stockbridge-Munsee Indian blood whose name appears on the roll of 1871 and any subsequent roll including the roll of 1910, are hereby adopted into membership of the Stockbridge-Munsee Indian Community. Provided, that any person whose name appears on the 1871 Stockbridge-Munsee roll or any subsequent roll up to and including the roll of 1910 of the Stockbridge-Munsee Indians of Wisconsin, who has relinquished their membership, or their entitlement to membership, or have been disenrolled for any reason shall not be members of the Stockbridge-Munsee Community.

Tribal Ordinances, ch. 44.4. This ordinance still governs the Community's membership requirements today.

II. Bruette's First Federal Lawsuit

In 2014, Bruette filed a pro se civil action against Sally Jewell, the Secretary of the United States Department of Interior. Bruette, 2015 WL 5022591, at *1. Bruette alleged that he was a direct descendant of Stephen Gardner, who was a party to the Treaty of 1856 and that he still resided within the original boundaries of that treaty, as had his father, grandmother, great-grandfather, and Gardner. Id. Therefore, Bruette alleged that he, and the other direct descendants, should be

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recognized as a historical tribe. Id. Specifically, Bruette asserted three claims in his complaint:

1. I claim that in 1895 the Department of Interior unlawfully suspended the Act of Congress, March 3, 1893, under the guise of a senate resolution. January 31, 1895. "Whereas complaint is made of the results of the carrying out by the Secretary of the Interior the act of Congress entitled an act for the relief of the Stockbridge and Munsee Indians, in the State of Wisconsin, approved March 3rd, 1893."

2. I further complain that the Department of Interior has no legal authority to suspend any act of Congress.

3. I and all the descendants of Stephen Gardner claim the Department of Interior is in breach of its fiduciary duties by failing to establish the official roll of actual members under the provisions Congress ordered.

Id. at *2. The Secretary responded with a motion to dismiss under under Fed. R. Civ. P. 12(b)(6) or, alternatively, for summary judgment. Id. at *3. The Secretary argued that the case was moot because the roll required by the 1893 Act had in fact been taken. Id. Alternatively, the Secretary argued that the action was barred...