Menominee Indian Tribe of Wisconsin v. Thompson
| Decision Date | 26 February 1996 |
| Docket Number | No. 95-C-0030-C.,95-C-0030-C. |
| Parties | MENOMINEE INDIAN TRIBE OF WISCONSIN, Plaintiff, v. Tommy G. THOMPSON, Governor of the State of Wisconsin; George E. Meyer, Secretary, Wisconsin Department of Natural Resources; James T. Addis, Administrator of DNR Division of Resource Management; John E. Fryatt, Administrator of DNR Division of Enforcement; Herbert F. Behnke, Trygbe A. Solberg, Neal W. Schneider, Betty Jo Nelsen, Mary Jane Nelson, James E. Tiefenthaler, Jr. and Stephen D. Willett, Members of the Wisconsin Natural Resource Board, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
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Bruce R. Greene, Greene, Myer & McElroy, P.C., Boulder, CO, for Plaintiffs.
Charles D. Hoornstra, Asst. Atty. General, Madison, Wisconsin, for Defendants.
Plaintiff Menominee Indian Tribe of Wisconsin brings this action for declaratory and injunctive relief, asserting that it enjoys off-reservation rights to hunt, fish and gather without state restriction on the lands it ceded to the United States in 1831, 1836 and 1848; that it has unextinguished aboriginal rights, derived from long uninterrupted use, to hunt and fish in various Wisconsin waters, including Lakes Winnebago and Michigan, the bay of Green Bay and portions of the Wisconsin River; and that it has the right to harvest Wolf River sturgeon in off-reservation, downstream portions of the Wolf River/Lake Winnebago ecosystem. Defendants have moved to dismiss the case on the grounds of failure to state a claim upon which relief can be granted, judicial estoppel and issue and claim preclusion. Defendants raised lack of subject matter jurisdiction as another ground for dismissal but plaintiff cured the problem by amending its complaint to delete any claim against the state of Wisconsin or the Wisconsin Natural Resources Board, both of which are immune from suit under the Eleventh Amendment.
With respect to counts I through V of the complaint, I conclude that plaintiff has alleged facts sufficient to state a claim, that questions of fact preclude a decision on defendants' motion to dismiss on the ground of judicial estoppel and that plaintiff's suit is not barred by the doctrine of nonmutual issue preclusion. With respect to the last claim relating to the sturgeon harvest, however, I conclude that plaintiff has failed to state a claim upon which it could obtain the relief it is seeking. Courts cannot rewrite treaties in the manner plaintiff has requested, which would permit the tribe to harvest sturgeon outside its reservation free of state regulation as an equitable accommodation for the manmade obstructions that prevent the sturgeon from reaching plaintiff's reservation. As to this count, defendants' motion to dismiss will be granted.
Plaintiff Menominee Indian Tribe of Wisconsin is a federally recognized sovereign Indian tribe with a tribal government organized under the Indian Reorganization Act, 25 U.S.C. §§ 461-479, and the Menominee Restoration Act, 25 U.S.C. §§ 903-903f. The tribe is self-governing and has the capacity to regulate the usufructuary (hunting, fishing and gathering) activities of its members. It is suing for itself and its members.
Defendant Tommy G. Thompson is the governor and chief executive officer of the state of Wisconsin. He is named as representative of all legislative, executive, judicial and administrative bodies of the state and of all citizens of the state. Defendants Herbert F. Behnke, Trygbe A. Solberg, Neal W. Schneider, Betty Jo Nelsen, Mary Jane Nelson, James E. Tiefenthaler, Jr. and Stephen D. Willett are members of the Wisconsin Natural Resources Board, charged by state law with the direction and supervision of the Wisconsin Department of Natural Resources, or DNR. These defendants establish the administrative rules and policies through which the department carries out its natural resource management and regulatory programs. Defendant George E. Meyer is Secretary of the Department of Natural Resources and is responsible for the agency's management under state statutes and regulations. He is charged with supervising the department's natural resource management and regulatory programs. Defendant James T. Addis is Administrator of the department's Division of Resource Management and is responsible for planning and coordinating the development, protection and use of Wisconsin's forest, fish and wildlife resources through agency programs, policies and regulations. Defendant John E. Fryatt is Administrator of the department's Division of Enforcement and is charged with planning and directing a coordinated program of law enforcement encompassing all DNR enforcement activities.
From time immemorial, plaintiff and its members occupied the shores of Lake Winnebago and the shores and islands of Lake Michigan from the mouth of the Escanaba River to the mouth of the Milwaukee River, including all of Green Bay. This occupancy continued until well after the establishment of plaintiff's reservation in 1854. Plaintiff and its members hunted, fished and collected plant foods on Lakes Winnebago and Michigan.
For a number of years, defendants and their agents, employees, representatives and predecessors in office have adopted natural resource regulations and enforced them against members of the plaintiff tribe. Tribal members attempting to exercise their usufractuary rights on lands outside their reservation have suffered confiscation of personal property, the imposition of fines and other money penalties, the imposition of state license fees as a condition for exercising their usufructuary rights and have been subject to threats of such actions. Plaintiff and its members have been deterred and prevented from exercising their usufructuary rights for purposes of subsistence and commerce. As a result, their ability to earn a living from the natural resources outside their reservation has been disrupted and impaired.
The area within which plaintiff claims the right to hunt, fish and gather without state restriction is shown in Map 1 below.
The area in dispute does not include 1) any of the area plaintiff ceded to the United States for the benefit of the New York Indians in Article First of the Treaty of February 8, 1831, 7 Stat. 342, except for that portion of the ceded lands that is within the boundaries of the Menominee Indian Reservation; 2) any area ceded by the Chippewa Indians in the Treaty of July 29, 1837, 7 Stat. 536, or the Treaty of October 4, 1842, 7 Stat. 591; and 3) any area ceded by the Stockbridge-Munsee Indian Tribe in the Treaty of February 11, 1856, 11 Stat. 679. (Plaintiff reserves for future resolution any issue involving these areas.) Plaintiff's claim to usufructuary rights extends to all waters within the area affected by its claims and those lands within this same area that are publicly or privately owned if they are open to the public for the usufructuary activities at issue.
On February 8, 1831, plaintiff signed the first treaty of significance to this lawsuit. 7 Stat. 342. In addition to ceding certain land to the United States for the benefit of the New York Indians, in Article Third of the 1831 treaty, the tribe ceded a large tract of land located on the east side of the Fox River and Green Bay in the state of Wisconsin, as shown in Map 2 below.
The boundaries of the cession are expressly meandered along the shorelines of Lakes Winnebago and Michigan, from the mouth of the Milwaukee River to the mouth of the Fox River. The ceded area includes all of the Door Peninsula but does not include the waters of either Lakes Michigan or Winnebago.
In treaties executed on September 3, 1836, 7 Stat. 506, and October 18, 1848, 9 Stat. 952, plaintiff ceded additional lands in Wisconsin. In Article First of the Treaty of 1836, plaintiff ceded to the United States land on the northwestern shore of Lake Winnebago and on the shore of Lake Michigan from the mouth of the Fox River to the mouth of the Escanaba River, as shown in Map 2 above. In the same article, plaintiff ceded to the United States an area along the Wisconsin River, three miles in width on either side and described as follows:
Beginning at a point upon said Wisconsin river two miles above the grant or privilege heretofore granted by said nation and the United States, to Amable Grignon; thence running up and along said river forty-eight miles in a direct line: and being three miles in width on each side of said river; this tract to contain eight townships or one hundred and eighty four thousand three hundred acres of land.
On May 12, 1854, plaintiff signed the Treaty of Wolf River with the United States that established the Menominee Reservation...
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Menominee Indian Tribe of Wisconsin v. Thompson
...portions of the Wolf River/Lake Winnebago ecosystem and denied the motion in all other respects. See Menominee Indian Tribe of Wisconsin v. Thompson, 922 F.Supp. 184 (W.D.Wis.1996). Although I permitted plaintiff to proceed on its remaining claims, I noted that it was a close question wheth......
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Menominee Indian Tribe of Wisconsin v. Thompson
...catch and, therefore, that the court did not have the authority to grant the relief requested. Menominee Indian Tribe of Wisconsin v. Thompson, 922 F.Supp. 184, 214-15 (W.D.Wis.1996). The district judge concluded that the treaties were not ambiguous and therefore that the court was competen......
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