Keweenaw Bay Indian Community v. State, 93-1118

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBOYCE F. MARTIN, Jr.
Citation11 F.3d 1341
PartiesKEWEENAW 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.
Docket NumberNo. 93-1118,93-1118
Decision Date14 December 1993

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.

Page 1343

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

Page 1344

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

Page 1345

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...

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163 practice notes
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    • United States District Courts. 4th Circuit. Northern District of West Virginia
    • 1 Marzo 1995
    ...(7th Cir.1994). Other circuits have applied very similar analyses to such motions. See Keweenaw Bay Indian Community v. State of Mich., 11 F.3d 1341 (6th Cir.1993);34 Bank 879 F. Supp. 992 One Texas, N.A. v. A.J. Warehouse, Inc., 968 F.2d 94, 100 (1st Cir.1992) (in analyzing a motion to dis......
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