Forest County Potawatomi Community v. Doyle

• Decision Date: 26 January 1993
• Docket Number: No. 92-C-0576-C.,92-C-0576-C.
• Citation: 828 F. Supp. 1401
• Parties: FOREST COUNTY POTAWATOMI COMMUNITY OF WISCONSIN, a federally recognized Indian tribe; Bingo Commission, Forest County Potawatomi Community; Lois Crowe, Chairperson of the Bingo Commission; and the Indian Community School of Milwaukee, Inc., a Wisconsin charitable corporation, Plaintiffs, v. James E. DOYLE, Individually and as Attorney General of the State of Wisconsin; John O. Norquist, Individually and as Mayor of the City of Milwaukee; Grant F. Langley, Individually and as City Attorney for the City of Milwaukee; Philip Arreola, Individually and as Chief of Police of the City of Milwaukee; Lee Jensen, Commissioner of Building Inspection, City of Milwaukee; City of Milwaukee, a municipality of the State of Wisconsin; E. Michael McCann, Individually and as District Attorney for the County of Milwaukee; and Richard Artison, Individually and as Sheriff of the County of Milwaukee, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

828 F. Supp. 1401

FOREST COUNTY POTAWATOMI COMMUNITY OF WISCONSIN, a federally recognized Indian tribe; Bingo Commission, Forest County Potawatomi Community; Lois Crowe, Chairperson of the Bingo Commission; and the Indian Community School of Milwaukee, Inc., a Wisconsin charitable corporation, Plaintiffs, v. James E. DOYLE, Individually and as Attorney General of the State of Wisconsin; John O. Norquist, Individually and as Mayor of the City of Milwaukee; Grant F. Langley, Individually and as City Attorney for the City of Milwaukee; Philip Arreola, Individually and as Chief of Police of the City of Milwaukee; Lee Jensen, Commissioner of Building Inspection, City of Milwaukee; City of Milwaukee, a municipality of the State of Wisconsin; E. Michael McCann, Individually and as District Attorney for the County of Milwaukee; and Richard Artison, Individually and as Sheriff of the County of Milwaukee, Defendants.

No. 92-C-0576-C.

United States District Court, W.D. Wisconsin.

January 26, 1993.

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Eric Dahlstrom, Rothstein, Walther, Donatelli, Hughes, Dahlstrom & Cron, Phoenix, AZ, for Forest County Potawatomi Comm., Potawatomi Comm. Bingo Comm., Jacobson, VA.

Joseph F. Preloznik, Madison, WI, for Indian Comm. School of Milwaukee.

Warren D. Weinstein, Asst. Atty. Gen., Madison, WI, for James E. Doyle.

Grant F. Langley, Milwaukee City Atty., Milwaukee, WI, for John O. Norquist, Grant F. Langley, Phillip Arreola, Lee Jensen, City of Milwaukee.

Stephen L. Morgan, Madison, WI, for E. Michael McCann.

Robert Ott, Corp. Counsel, Milwaukee County, Milwaukee, WI, for Richard Artison.

OPINION AND ORDER

CRABB, Chief Judge.

This is an action for injunctive, declaratory and monetary relief in which plaintiffs seek to have defendants enjoined from using any form of state power to prevent plaintiffs and their authorized agents from operating certain gaming activities on Indian trust lands within the City of Milwaukee. In addition, plaintiffs seek a declaration of the Forest County Potawatomi Community's right to conduct such gaming under the terms of the 1992 Gaming Compact the community entered into with the State of Wisconsin, and plaintiffs seek damages for any injuries suffered as a result of unlawful acts committed by defendants in the course of their efforts to prevent the tribe and the commission from engaging in compact-authorized gaming. The case is before the court on the motions to dismiss of defendants John O. Norquist, Grant F. Langley, Philip Arreola, Lee Jensen and City of Milwaukee on the following grounds: (1) the complaint fails to state a claim for relief under 42 U.S.C. § 1983; (2) claim II of the complaint does not "arise under" the laws of the United States, and therefore, the court lacks subject matter jurisdiction under 28 U.S.C. § 1362 or § 1331; (3) the Redevelopment Authority of the City of Milwaukee and the United States of America are indispensable parties; and (4) venue is improper because defendant Doyle should be realigned as an involuntary plaintiff, thus defeating venue in the Western District of Wisconsin. Defendants Michael McCann and James Doyle have also moved to dismiss the § 1983 claim against them on the grounds that the Eleventh Amendment bars any action for damages against them in their official capacities and that they are entitled to prosecutorial or judicial immunity. Defendant McCann also asserts that the complaint is not ripe for adjudication.¹

In considering a motion to dismiss, the court must accept as true all well-pleaded factual allegations in the complaint, drawing all reasonable inferences in favor of the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 72, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir.1990). The court may dismiss a complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6) only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir.1985) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). Although all reasonable inferences are to be drawn in favor of the plaintiff, the complaint must set forth factual allegations sufficient to establish the elements that are crucial to recovery under plaintiffs claim. Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir.1984). Legal conclusions without factual support are not sufficient. Benson v. Cady, 761 F.2d 335, 338 (7th Cir.1985).

I conclude that plaintiffs' § 1983 claim must be dismissed for plaintiffs' failure to state a claim on which relief may be granted; that this court has subject matter jurisdiction because plaintiffs have alleged claims arising under the laws of the United States; that the United States of America and the Redevelopment Authority are not indispensable parties; and that venue is proper.

In deciding the motion to dismiss, I must take as true all of the well-pleaded allegations of the complaint. For that purpose only, I accept as true the following allegations of fact made by plaintiffs in their complaint.²

ALLEGATIONS OF FACT

Plaintiff Forest County Potawatomi Community of Wisconsin is a federally-recognized Indian tribe. The tribe exercises governmental authority over the reservation, as well as over land held in trust for the benefit of the Potawatomi Tribe by the United States in the City of Milwaukee, except as otherwise provided by law.

Plaintiff Potawatomi Community Bingo Commission is an agency of the tribe and has comprehensive authority to conduct gaming activities on behalf of the tribe, and to issue and enforce regulations governing such activities. Plaintiff Crowe is a member of the tribe and is chairperson of the commission. Plaintiff Indian Community School of Milwaukee is a Wisconsin non-profit corporation that operates an Indian elementary school within the City of Milwaukee, on the site of the former Concordia College.

Defendant Doyle is Attorney General of the State of Wisconsin and is the chief law enforcement officer of the state. Defendant City of Milwaukee is a municipal corporation existing by virtue of the laws of the State of Wisconsin. Defendant Norquist is Mayor of the City of Milwaukee and acts as chief executive of the city government. Defendant Langley is City Attorney of the City of Milwaukee and represents the city in all legal matters. Defendant Arreola is Chief of Police of the City of Milwaukee. Defendant Jensen is Commissioner of Building Inspection of the City of Milwaukee and under the city code is vested with authority to enforce the zoning ordinances of the city. Defendant McCann is District Attorney of Milwaukee County and is in charge of all criminal prosecutions brought in the circuit courts of the county. Defendant Artison is the Sheriff of Milwaukee County.

In the late 1980's, plaintiffs entered into negotiations with the City of Milwaukee, the Redevelopment Authority, the Bureau of Indian Affairs, the State of Wisconsin and others, to acquire two parcels of land in the City of Milwaukee for the operation of an Indian school and a gaming operation. The school was to be located on the Concordia College campus and the gaming operation was to be located on the Menomonee Valley land then owned by the Redevelopment Authority of the City of Milwaukee. As a result of the negotiations, an agreement was reached by which the two parcels of land would be acquired in trust for plaintiff tribe by the United States. The terms of the agreement were embodied in a "Cooperational and Jurisdictional Agreement" entered into by plaintiff tribe, plaintiff school and defendant City of Milwaukee and approved by the Area Director of the Minneapolis Area Office of the Bureau of Indian Affairs, United States Department of the Interior.

The agreement specified, in part, that no gaming activities of any kind would be permitted on the Concordia property but that the Menomonee Valley land "may be used for such gaming purposes as are permitted on other trust land within the State of Wisconsin." It further stated that plaintiff tribe would adopt and promulgate regulations regulating the conduct of such gaming. In addition to the Agreement, the parties also executed an amendment to the Agreement. The amendment added the following language pertaining to the type of gaming permitted on the Menomonee Valley Land:

... except that Class III gaming, as defined in the Indian Gaming Regulatory Act, shall not be permitted on the Menomonee Valley land unless Class III gaming is permitted in the State of Wisconsin for any purpose by any person, organization or entity. If Class III is so authorized in the State of Wisconsin, such gaming may be undertaken on the Menomonee Valley land only if done in compliance both with the requirements of the Indian Gaming Regulatory Act and with all civil regulatory state and local laws and regulations which authorize or regulate such gaming, including but not limited to any requirements to obtain authorizations or licenses to undertake such gaming.

On or about July 25, 1990, the Agreement, the Amendment and other documents pertaining to the transaction, including warranty deeds to the two parcels involved, were executed. On the same day, the Secretary of the Interior accepted title to those lands in trust for plaintiff tribe. Additionally, the secretary made the determinations with the concurrence of the governor that the Menomonee Valley trust lands could be used for gaming activities under the Indian Gaming Regulatory Act.

Following the execution of documents transferring the Concordia College and Menomonee Valley parcels into trust and the various leases, sub-leases and management agreements, plaintiff commission proceeded to construct a gaming facility on the Menomonee Valley land. On March 7, 1991, plaintiff commission commenced gaming activities at that...