LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA IND. v. State of Wis., 74-C-313-C.

Citation663 F. Supp. 682
Decision Date23 June 1987
Docket NumberNo. 74-C-313-C.,74-C-313-C.
PartiesLAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS; Red Cliff Band of Lake Superior Chippewa Indians; Sokaogon Chippewa Indian Community, Mole Lake Band of Wisconsin; St. Croix Chippewa Indians of Wisconsin; Bad River Band of the Lake Superior Chippewa Indians; Lac Du Flambeau Band of Lake Superior Chippewa Indians, Plaintiffs, v. STATE OF WISCONSIN, Wisconsin Natural Resources Board, Carroll D. Besadny, James Huntoon, and George Meyer, Defendants.
CourtUnited States District Courts. 7th Circuit. Western District of Wisconsin

James E. Zorn, Hayward, Wis., James L. Beck, Wisconsin Judicare Inc., Wausau, Wis., for Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

Milton Rosenberg, Madison, Wis., for Red Cliff Band of Lake Superior Chippewa Indians.

Earl Charleton, Milwaukee, Wis., for Sokaogon Chippewa Indian Community, Mole Lake Band of Wisconsin.

Howard Bichler, Webster, Wis., for St. Croix Chippewa Indians of Wisconsin.

Candy L. Jackson, Odanah, Wis., for Bad River Band of the Lake Superior Chippewa Indians.

Kathryn Tierney, James Janetta, Lac du Flambeau, Wis., for Lac du Flambeau Band of Lake Superior Chippewa Indians.

Mary V. Bowman, Charles Larson, James McDermott, Asst. Atty. Gen., Madison, Wis., for defendants State of Wis., Wisconsin Natural Resources Bd., Carroll D. Besadny, James Huntoon and George Meyer.

OPINION AND ORDER

CRABB, Chief Judge.

Plaintiff Lac Courte Oreilles Band of Lake Superior Chippewa Indians has petitioned for attorneys' fees under 42 U.S.C. § 1988 for what may be considered the first phase of this lawsuit.1 The first phase began when the original complaint was filed in 1974 and ended with the denial of certiorari by the United States Supreme Court on October 3, 1983, which left standing the decision of the court of appeals in plaintiff's favor. Lac Courte Oreilles Band v. Voigt, 700 F.2d 341 (7th Cir.), cert. denied, 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983).

With the court's permission, defendants responded to the petition for attorneys' fees with a motion under Rule 12(h)(3), Federal Rules of Civil Procedure, to dismiss the complaint insofar as it alleges a cause of action under 42 U.S.C. § 1983, for which attorneys' fees may be available under 42 U.S.C. § 1988. Defendants contend this court lacks jurisdiction over the subject matter of the § 1983 claim.

Defendants' motion is directed only to plaintiffs' claims under § 1983. Plaintiffs also have a claim under 28 U.S.C. § 1362, which is not addressed in this opinion.

Defendants challenge this court's subject matter jurisdiction to entertain the § 1983 claim on the grounds that: (1) plaintiffs' treaty rights are not rights secured under the Constitution and laws of the United States within the meaning of § 1983; (2) plaintiffs are not citizens or other persons within the meaning of § 1983; and (3) the defendant State of Wisconsin enjoys Eleventh Amendment immunity from suit under § 1983.

Unlike other defenses that are waived if not raised at specified points in a lawsuit, see Rules 12(h)(1) and (2), the defense of absence of subject matter jurisdiction may be raised at any time by suggestion of the parties or the court. Rule 12(h)(3); Casio, Inc. v. S.M. & R. Co., Inc. 755 F.2d 528, 530 (7th Cir.1985); Jackson v. Consolidated Rail Corp., 717 F.2d 1045, 1055 (7th Cir.1983), cert. denied, 465 U.S. 1007, 104 S.Ct. 1000, 79 L.Ed.2d 233 (1984). Defendants' motion is timely.2

Standard of Decision for Defendants' Motion

One other procedural matter must be addressed before I turn to the merits of the motion.

Defendants are challenging elements of plaintiffs' federal cause of action under § 1983. In a recent case, the Court of Appeals for the Seventh Circuit directed the lower courts to give different treatment to the two different kinds of jurisdictional challenges: those more common challenges to jurisdiction such as lack of diversity, and those challenges that actually attack an element of the federal cause of action. Malak v. Associated Physicians, Inc., 784 F.2d 277 (7th Cir 1986). A challenge to an element of the federal cause of action requires a determination of the legal sufficiency of the complaint, not a determination of the factual predicates for subject matter jurisdiction.3 My understanding of Malak is that a somewhat duplicative two-step inquiry must be undertaken when there is a jurisdictional challenge to an element of the federal claim. First, the district court must determine whether, under Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946), the claim is wholly insubstantial or frivolous. 784 F.2d at 279. Only if the claim fails the Bell test may the court dismiss on jurisdictional grounds. Second, after having satisfied itself that the claim is not insubstantial or frivolous, "the district court should take jurisdiction and handle defendants' motion as a direct attack on the merits of plaintiff's case." Id. at 280 (citations omitted). At that point, the motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) must be treated as a challenge to the merits of the claim, as if had been brought under Rule 12(b)(6). Id. See 2A Moore's Federal Practice ¶ 12.072.-1 (1986).

Because it is not clear in Malak when the dismissal motions were filed, I assume that they were made before the filing of an answer. In this case defendants' motion was made long after the filing of the answer and the amended answer, making it inappropriate to consider it under Rule 12(b)(6), which is directed to motions made before the filing of an answer. Instead, after determining whether the § 1983 claim is insubstantial or frivolous, I will proceed according to Rule 12(h)(2), and will treat defendants' motion as if it were denominated a motion for judgment on the pleadings under Rule 12(c). Schy v. Susquehanna Corp., 419 F.2d 1112, 1115 (7th Cir.), cert. denied, 400 U.S. 826, 91 S.Ct. 51, 27 L.Ed.2d 55 (1970). See also Roberts v. American Airlines, Inc., 526 F.2d 757, 761 (7th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976).

I. Substantiality of Plaintiffs' Claims
A. Treaty-based rights under § 1983

Defendants argue that subject matter jurisdiction is not present to entertain plaintiffs' § 1983 claim in this court because treaty-based rights are not cognizable as rights "secured by ... laws," within the meaning of § 1983.

42 U.S.C. § 1983 states:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or imunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

Neither this court nor the parties have found any precedent, before 1974 or since, holding that Indian treaties are not federal laws within the meaning of § 1983. Absence of clearly contrary precedent itself may shield a claim from a challenge to subject matter jurisdiction. See Hagans v. Lavine, 415 U.S. 528, 537-38, 94 S.Ct. 1372, 1379-80, 39 L.Ed.2d 577 (1974).

Prior to the commencement of this action, one court of appeals had explicitly refrained from deciding whether a treaty right is subject to vindication under § 1983. Quinault Tribe of Indians v. Gallagher, 368 F.2d 648, 653 (9th Cir.1966), cert. denied, 387 U.S. 907, 87 S.Ct. 1684, 18 L.Ed.2d 626 (1967). In 1975, the year the complaint in this case was first amended, another court faced with a § 1983 claim alleging a violation of treaty rights avoided deciding the issue, finding jurisdiction on other grounds. Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana v. Moe, 392 F.Supp. 1297, 1304-05 (D.Mont.1974), aff'd, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). Because the few reported cases touching on the issue do not resolve the question, I conclude that plaintiffs' claim that a treaty is a law under § 1983 was not insubstantial or frivolous at the time the complaint and amended complaint were filed.

No case reported since 1974 has held a treaty is not a law within the meaning of § 1983, and two Supreme Court decisions strengthen plaintiffs' contention. The first is Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), in which the Court held that the scope of the language of § 1983 embraces claims based on purely statutory violations of federal law. The Court had no occasion to address the applicability of § 1983 to claims based on rights derived from sources other than the Constitution and statutes, such as from treaties. However, Thiboutot makes more plausible plaintiffs' § 1983 claim based on the infringement of treaty rights, given the prior narrow interpretation that vindication under § 1983 was limited to deprivations of rights under the Fourteenth Amendment or statutes implementing the Fourteenth Amendment. See, e.g., Monroe v. Pape, 365 U.S. 167, 180, 81 S.Ct. 473, 480, 5 L.Ed.2d 492 (1961); Spears v. Robinson, 431 F.2d 1089, 1091 (8th Cir.1970).

The second recent case of significance is Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981). In Adams the Supreme Court held, citing Thiboutot, that a state prisoner stated a claim under § 1983 by alleging that state officials violated his rights under the Interstate Agreement on Detainers. Although the agreement was enacted as a state statute, the Court found the agreement constituted a federal law under § 1983 because of the prior congressional consent required for interstate agreements by the compact clause, U.S. Const. art. I, § 10, cl. 3.4 Id. at 439-40, 101 S.Ct. at 707-08.

I interpret Adams to support the proposition that the "laws" securing rights for § 1983 purposes are not limited to the Constitution and federal statut...

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