State of Wis. v. Baker

• Citation: 464 F. Supp. 1377
• Decision Date: 20 September 1978
• Docket Number: No. 76-C-359.,76-C-359.
• Parties: STATE OF WISCONSIN, Plaintiff, v. Odric BAKER, Individually and as Chairman, Lac Courte Oreilles Tribal Governing Board, Pete Larson, Individually and as Vice Chairman, Lac Courte Oreilles Tribal Governing Board, Margaret Diamond, Individually and as Secretary-Treasurer, Lac Courte Oreilles Tribal Governing Board, Charles Diamond, Individually and as a member, Lac Courte Oreilles Tribal Governing Board, Theresa Williams, Individually and as a member, Lac Courte Oreilles Tribal Governing Board, Rick St. Germaine, Individually and as a member, Lac Courte Oreilles Tribal Governing Board, and their agents, employees, and subordinates, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

464 F. Supp. 1377

STATE OF WISCONSIN, Plaintiff, v. Odric BAKER, Individually and as Chairman, Lac Courte Oreilles Tribal Governing Board, Pete Larson, Individually and as Vice Chairman, Lac Courte Oreilles Tribal Governing Board, Margaret Diamond, Individually and as Secretary-Treasurer, Lac Courte Oreilles Tribal Governing Board, Charles Diamond, Individually and as a member, Lac Courte Oreilles Tribal Governing Board, Theresa Williams, Individually and as a member, Lac Courte Oreilles Tribal Governing Board, Rick St. Germaine, Individually and as a member, Lac Courte Oreilles Tribal Governing Board, and their agents, employees, and subordinates, Defendants.

No. 76-C-359.

United States District Court, W. D. Wisconsin.

September 20, 1978.

COPYRIGHT MATERIAL OMITTED

John D. Niemisto, Asst. Atty. Gen., State of Wis., Madison, Wis., for plaintiff.

Larry B. Leventhal, Minneapolis, Minn., for defendants.

Gene M. Potack of Wisconsin Judicare, Inc., Wausau, Wis., for intervenors.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is a civil action for declaratory relief brought by the State of Wisconsin against officers and members of the Tribal Governing Board of the Lac Courte Oreilles Band of Lake Superior Chippewa Indians.

It was commenced in the Circuit Court for Sawyer County, Wisconsin. Defendants have removed the action to this court, asserting in the petition for removal that the "requested relief constitutes an invasion of the area wherein the District Courts of the United States `have original jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States' (28 U.S.C. § 1441b)." The petition goes on to cite various treaties, acts of Congress, tribal laws, and federal executive laws under which "the claim and rights of the defendants" assertedly arise. The test for removal is not the nature of the defendants' claim, but the plaintiffs'. However, the claim or right asserted by plaintiff State, purportedly as a trustee for the public, arises under acts of Congress, federal executive action, and treaties. No doubt for this reason, the removal has not been challenged. Unless jurisdiction is absent for reasons discussed below, it is present under 28 U.S.C. § 1331.

Plaintiff alleges: the tribal constitution authorizes the governing board to adopt ordinances generally, and specifically to regulate hunting, fishing, ricing, trapping and boating by members and nonmembers within the reservation; pursuant to that authority defendants have promulgated a tribal conservation code and a tribal court code, have stated that they intend to enforce the codes, and have agents enforcing the conservation code; title to the navigable lakes upon which defendants have stated their intention to enforce the code is in the State of Wisconsin and held in trust for all the public for fishing, navigation and recreation; defendants' enactment and enforcement of the conservation code infringes upon the state's title and duty to regulate the fishery resources of the state for the benefit of the public; and every defendant acted in excess of his or her authority as a member of the governing board by enacting and enforcing the codes. Plaintiff seeks a judgment declaring that defendants' promulgation and enforcement of the codes is invalid as it infringes on the right of the public to fish upon the lakes in question.

Defendants have filed an amended motion to dismiss plaintiff's complaint, citing these grounds: (1) there is no actual controversy between the parties to this action; (2) plaintiff has failed to join indispensable parties; (3) the sovereign immunity of the Lac Courte Oreilles Band bars this action; and (4) the legislative immunity of the individual defendants bars this action.¹ It is to this motion that this opinion and order are directed.

CASE OR CONTROVERSY

Defendants argue first that the naming of individual members of the governing board as defendants is an attempt to evade the bar of sovereign immunity, but that the attempt must fail because the plaintiff has no controversy with the named individual tribal members. Defendants add that in their individual capacities, they have not acted "in such a way as to invade or prejudicially affect, the rights of the plaintiff." Since the individual defendants have not caused plaintiff any legal injury, they contend, plaintiff has not sufficiently alleged a "case or controversy" within the meaning of Article III, Section 2 of the United States Constitution.

This contention is difficult to analyze because it is so closely related to defendants' argument that the sovereign immunity of the Band bars the action. In both arguments, defendants seek to place at issue whether defendants were acting in their official or individual capacities.

But in determining whether there is a "case or controversy," the nature of defendants' capacities is not a necessary part of the analysis. The relevant factors to be considered in determining the presence of a case or controversy are whether the defendants have a personal interest in the outcome of the case, and whether they are parties against whom the requested relief can be granted. Illinois Migrant Council v. Pilliod, 540 F.2d 1062, 1067-1069 (7th Cir. 1976), rehearing en banc 548 F.2d 715. As the term "personal" is used in this context, it does not exclude one's interest in performing the functions of governmental employment or office. In Illinois Migrant Council, a class of people sued agents of the Immigration and Naturalization Service, challenging the constitutionality of the I.N.S. search policy. The court held that both the agents who executed the policy, and their superiors, had the requisite personal interest in the outcome of the case.

The present case is analogous. Plaintiff alleges that upon defendants' direction, agents of the defendants are enforcing the tribal conservation code, causing real and substantial injury to the plaintiff and those for whom it serves as trustee. Thus, defendants have a personal interest in the outcome of the case. And if relief is granted to plaintiff, the court can order defendants to direct their agents to discontinue enforcement of the code. Accordingly, it appears that plaintiff has sufficiently alleged a "case or controversy" whether it is directed against defendants in their official or individual capacities.

SOVEREIGN IMMUNITY

It is quite clear from the complaint that defendants purported to be acting as members of the Tribal Governing Board in enacting and enforcing the codes at issue. Therefore, defendants contend, plaintiff's complaint actually presents a cause of action against the Band and such an action is barred by sovereign immunity.

Indian tribes are exempt from suit on the basis of traditional sovereign immunity, unless Congress has consented to the suit. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); Puyallup Tribe v. Washington Game Department, 433 U.S. 165 at 172-173, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977). Plaintiff does not claim that Congress has consented to this suit against the tribe. A tribe may not be sued indirectly by suing its officers. However, tribal immunity does not protect tribal members sued in their individual capacities. Means v. Wilston, 522 F.2d 833 (8th Cir. 1975); Weeks v. United States, 406 F.Supp. 1309 (W.D.Okla.1975); Seneca Constitutional Rights Organization v. George, 348 F.Supp. 48 (W.D.N.Y.1972). Plaintiff relies on the theory that in enacting and enforcing the codes, defendants acted in excess of their authority, and therefore acted in their individual capacities.

In Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), a private corporation which had contracted to buy coal from the War Assets Administration sought an injunction prohibiting the Administrator from selling the coal to a third party after the Administrator had refused to deliver it to the plaintiff and had contracted for its sale to the third party. In determining whether in effect the suit was a suit against the sovereign, the crucial question was considered to be not the denomination of party defendants, but whether the relief sought was relief against the sovereign; that is, whether the effect of a judgment would be to restrain the government from acting or to compel it to act. Id. at 688, 704, 69 S.Ct. 457; see also Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963). In the present case, a declaratory judgment that the tribal conservation and court codes are invalid and illegal as applied to the lakes in question would have the practical effect of restraining the Band's program of requiring licenses and enforcing other provisions of the code on those lakes.

However, there are at least two exceptions to the sovereign immunity rule when officers are named as defendants. As explained in Larson, these exceptions are invoked when an officer is claimed to have acted beyond his or her statutory powers, or when the statute or order conferring power upon the officer to act is claimed to be unconstitutional. See Dugan v. Rank, supra at 621-622, 83 S.Ct. 999; Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971); Scholder v. United States, 428 F.2d 1123 (9th Cir. 1970).

In Larson, the court found that the Administrator's general power to administer the government sales program included the power to refuse to deliver goods when he thought it necessary to do so, and that the statute conferring the power was not claimed to be unconstitutional. Thus, the court held that sovereign immunity barred the action.

A similar analysis was employed in Dugan, supra. Property owners who would be affected by a large federal water project sued to prohibit officials of the United States Reclamation Bureau from taking plaintiffs' claimed water rights. Again the court determined first whether the effect of the judgment would be to restrain actions of the United...