Sokaogon Chippewa Community v. State of Wis., Oneida County, 88-2772

• Citation: 879 F.2d 300
• Decision Date: 11 September 1989
• Docket Number: No. 88-2772,88-2772
• Parties: SOKAOGON CHIPPEWA COMMUNITY, Plaintiff-Appellant, v. STATE OF WISCONSIN, ONEIDA COUNTY, Max Peterson, Chief, U.S. Forest Service, James Berlin, Forest Supervisor, United States of America, Forest County, Langlade County, and Exxon Corporation, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 300

879 F.2d 300

14 Fed.R.Serv.3d 528

SOKAOGON CHIPPEWA COMMUNITY, Plaintiff-Appellant, v. STATE OF WISCONSIN, ONEIDA COUNTY, Max Peterson, Chief, U.S.

Forest Service, James Berlin, Forest Supervisor, United

States of America, Forest County, Langlade County, and Exxon

Corporation, Defendants-Appellees.

No. 88-2772.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 1989.

Decided July 24, 1989.

Rehearing and Rehearing En Banc Denied Sept. 11, 1989.

Earl A. Charlton, Daniel W. Stevens, Milwaukee, Wis., Milton Rosenberg, Madison, Wis., Sokaogon Chippewa Community, plaintiff-appellant.

John D. Niemisto, Asst. Atty. Gen., Wis. Dept. of Justice, Madison, Wis., Fred W. Kawalski, Office of the Corp. Counsel, Antigo, Wis., Lawrence R. Heath, Office of the Corp. Counsel, Rhinelander, Wis., for State of Wisconsin and Oneida County, defendants-appellees.

Louise F. Milkman, Dept. of Justice, Civ. Div., Appellate Section, Washington, D.C., for Fred W. Kawalski, Office of the Corp. Counsel, Antigo, Wis., Lawrence R. Heath, Office of the Corp. Counsel, Rhinelander, Wis., Philip J. Freeburg, Schofield, Wis., for Max Peterson, Chief U.S. Forest Service, defendant-appellee.

John D. Niemisto, Asst. Atty. Gen., Madison, Wis., Fred W. Kawalski, Office of the Corp. Counsel, Antigo, Wis., Lawrence R. Heath, Office of the Corp. Counsel, Rhinelander, Wis., Philip J. Freeburg, Schofield, Wis., for Langlade County, defendant-appellee.

David E. Beckwith, David Lucey, Foley & Lardner, Milwaukee, Wis., for Exxon Corp., defendant-appellee.

William T. Finley, Jr., David F.B. Smith, Pierson, Semmes & Finley, Washington, D.C., for American Land Title Ass'n, amicus curiae.

Before CUMMINGS, ^* POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

The Sokaogon Chippewa Community, an Indian tribe, brought suit against the United States, Exxon Corporation, and other defendants under 28 U.S.C. Sec. 1362 to establish its treaty right to a tract 12 miles square (144 square miles, or 92,600 acres) in northern Wisconsin. The tract is rural, and contains federal and state public lands as well as vacation homes, farms, and other private residences. Copper and zinc were discovered in the tract in 1976, and Exxon, claiming mineral rights, began fencing portions of the tract preparatory to developing the mineral deposits. The fencing interfered with various uses that the Sokaogon were making of the tract, such as fishing, the gathering of wild rice, and the harvesting of porcupines, and in 1986 the tribe filed this suit. The district judge dismissed the complaint against the United States on statute of limitations grounds and dismissed the remaining defendants on the ground that the United States was an indispensable party to the suit against them. There was no pretrial discovery or other development of evidence.

The complaint is founded on two treaties that the United States signed with a group of Chippewa (more accurately, "Ojibwa") tribes in 1842 and 1854 respectively; the Sokaogon either were one of these tribes or are a successor to one or more of them. In the 1842 treaty the Chippewa ceded to the United States a large amount of land, including the tract at issue in this case, in return for various promises and other consideration. See Treaty with the Chippewa of Oct. 4, 1842, 7 Stat. 591. Article II of the treaty reserved to the Chippewa "the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States" (emphasis added). The plan was no doubt to remove the Chippewa tribes west of the Mississippi River, as had been done with the Seminoles and other eastern Indians. Resistance by the Chippewa to this plan resulted in the second treaty involved in this case, Treaty with the Chippewa of Sept. 30, 1854, 10 Stat. 1109, which promised the Chippewa substantial land east as well as west of the Mississippi, including land in Wisconsin. According to the complaint, the promise embraced the tract involved in this case. But, the complaint continues, the U.S. reneged on the promise; a series of Chippewa reservations were created but none included the tract. And not only was this a violation of the 1854 treaty, but as a result of the violation the U.S. never satisfied the conditions of the removal clause of the 1842 treaty--and therefore the right of occupancy that the earlier treaty had conferred on the Sokaogon never terminated. Precisely when the U.S. reneged on its promise in the 1854 treaty is not alleged, but the complaint does say that "within a few decades" after that treaty was signed the Sokaogon were "dispossessed" from the tract in question. The complaint further alleges that besides failing to create a reservation embracing that tract the U.S. began granting mineral and other rights to various persons, establishing a forest preserve, etc., all in derogation of the tribe's rights.

No suit was filed until the present suit in 1986. This was too late to sue the U.S. The plaintiff's cause of action against the U.S. must certainly have accrued well before August 13, 1946--the critical date because the Indian Claims Commission Act, 25 U.S.C. Sec. 70 et seq. (a statute that expired by its own terms in 1978), expressly created an exclusive remedy against the U.S. for tribal claims accruing before that date and established a five-year statute of limitations. See Secs. 70a, 70k. The Sokaogon contend, however, that the U.S. should be estopped to plead the statute of limitations because it interfered with the tribe's obtaining adequate legal representation. Indian tribes are not permitted to make contracts that are not approved by the Bureau of Indian Affairs, 25 U.S.C. Sec. 81, including contracts with attorneys, and the Sokaogon contend that the Bureau forced the tribe to hire lawyers who had a conflict of interest because they represented other Chippewa tribes and who failed (for whatever reason) to assert the Sokaogon's claim to the tract in issue.

Whether the U.S. may ever be equitably estopped to plead a defense by the misconduct of its agents remains an open question, see Heckler v. Community Health Services, 467 U.S. 51, 60-61, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984); Lyng v. Payne, 476 U.S. 926, 935, 106 S.Ct. 2333, 2339-40, 90 L.Ed.2d 921 (1986); United States v. Medico Industries, Inc., 784 F.2d 840, 846 n. 2 (7th Cir.1986), but here as in the cited cases an element essential to stating a claim of equitable estoppel is missing. Here it is the misconduct itself. Cf. INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21-22, 38 L.Ed.2d 7 (1973) (per curiam). The complaint alleges that for reasons of efficiency the Bureau of Indian Affairs encouraged the "agglomerating" of all Chippewa claims into a single claim for presentation to the Indian Claims Commission and that the law firm picked by the Bureau to represent the Chippewa unaccountably failed to include the Sokaogon claim. Assuming this to be true, we do not think it states a claim of equitable estoppel. For all that appears, the Bureau's desire to pool the Chippewa's claims was a reasonable and sensible one and any bobble was committed by the law firm--yet there is no allegation that the Bureau was negligent or malicious in picking that firm. And there may have been no bobble; the law firm may have made a correct judgment that the Sokaogon claim was groundless. Maybe the Bureau could have done better, but the complaint does not allege the kind of misconduct--if indeed it alleges misconduct at all--that would justify forfeiting the United States' statute of limitations defense. The statute requiring the Bureau's consent to the making of contracts was in force when the Indian Claims Commission Act with its five-year statute of limitations was passed, and we do not think Congress would have wanted the limitations period undone by so pallid, nebulous, and exiguous a charge of potential conflict of interest as is made in this case. Cf. INS v. Hibi, supra. The Sokaogon do not argue that section 81 is unconstitutional whether in general or as applied to the facts here, and there is no constitutional right to representation in civil cases, let alone representation free of potential conflicts of interest. See, e.g., United States v. White, 879 F.2d 1509, 1513 (7th Cir. July 18, 1989).

The Sokaogon have, however, another argument for avoiding the five-year statute of limitations: insofar as the 1842 treaty can be understood to grant not a right in fee simple but rather, as the wording implies, a right to use the land for limited purposes like hunting, fishing, gathering, religious ceremonies, burials, and other nomadic, intermittent, nonhabitational, nonpossessory Indian uses (cf. Rose, Possession as the Origin of Property, 52 U.Chi.L.Rev. 73, 85-88 (1985)), that right was not infringed until Exxon began fencing the land in 1976. And such infringement, occurring as it did after 1946, is not within the scope of the Indian Claims Commission Act. Here the Sokaogon rely on the Quiet Title Act, 28 U.S.C. Sec. 2409a, which allows the naming of the U.S. as a defendant to a dispute over real property in which the U.S. claims an interest, and sets a 12-year statute of limitations that runs from the time the plaintiff or its predecessor knew of the claim.

The 12-year statute of limitations would be no bar to the suit against the U.S., we may assume, if the tribe did not discover until it saw Exxon's fence going up that the U.S. had asserted an interest in the tract inconsistent with the tribe's occupancy rights and had made a grant of that interest or a part thereof. The problem is that elsewhere in the complaint the tribe alleges that within several decades following the 1854 treaty the tribe (or its predecessor) had been dispossessed by the defendants. Long before Exxon began building its fence, moreover, vacation homes and other private residential buildings had sprung up on the tract, providing...