Wisconsin v. Stockbridge-Munsee Community

• Decision Date: 30 September 2004
• Docket Number: No. 98-C-0871.,98-C-0871.
• Citation: 366 F.Supp.2d 698
• Parties: State of WISCONSIN, Plaintiff, v. THE STOCKBRIDGE-MUNSEE COMMUNITY and Robert Chicks, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

366 F.Supp.2d 698

State of WISCONSIN, Plaintiff, v. THE STOCKBRIDGE-MUNSEE COMMUNITY and Robert Chicks, Defendants.

No. 98-C-0871.

United States District Court, E.D. Wisconsin.

September 30, 2004.

John S Greene, Assistant Attorney General, Wisconsin Department of Justice, Madison, WI, for Plaintiff.

Brian L Pierson, Paul W Stenzel, von Briesen & Roper, Milwaukee, WI, John W Hein, von Briesen & Roper, Milwaukee, WI, Sharon Greene-Gretzinger, Stockbridge-Munsee Community, Bowler, WI, for Defendant.

DECISION AND ORDER

GORENCE, United States Magistrate Judge.

NATURE OF CASE

The plaintiff, State of Wisconsin, filed this action on September 3, 1998, against the defendants, alleging that defendant Stockbridge-Munsee Community Band of Mohican Indians (Tribe) was operating Class III electronic games of chance at the Pine Hills Golf and Supper Club (Pine Hills) which are specifically prohibited by the Indian Gaming Regulatory Act (IGRA), 25 U.S.C. §§ 2701 et seq. The complaint also alleges that the State of Wisconsin and the Tribe entered into the Stockbridge-Munsee Community and State of Wisconsin Gaming Compact of 1992 (compact) for the conduct of Class III gaming as required by 25 U.S.C. § 2710(d)(1)(C). The complaint states that, by its terms, the compact limits the operation of such games of chance to locations "on tribally owned land or land held in trust by the United States on behalf of the tribe, but only on such lands within the exterior boundaries of the tribal reservation." (Complaint ¶ 13 [quoting Compact, Section XV, Part H (emphasis added)]).

The plaintiff asserts in the complaint that the Tribe obtained the Pine Hills property and in December 1995, conveyed it to the United States of America to be held in trust for the benefit of the Tribe pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 465. Id. ¶¶ 16-17. The plaintiff maintains that operation of Class III electronic games of chance at the Pine Hills location is not permitted by the express terms of the compact because the land is located outside the boundaries of the Tribe's reservation and because Pine Hills does not meet the requirements of 25 U.S.C. § 2719(b)(1)(A). Id. ¶¶ 19, 20-21. In addition to injunctive relief, the complaint sought a declaration of the current boundaries of the reservation.

The State of Wisconsin moved for a preliminary injunction requiring the cessation of Class III gaming activities at Pine Hills. Following a hearing and full briefing on the motion, the court determined that the 1871 Act had diminished the reservation, leaving only the 18 sections reserved from sale as the Tribe's new reservation. Wisconsin v. Stockbridge-Munsee Community, 67 F.Supp.2d 990 (E.D.Wis.1999). Because the gaming activity at issue was not located on the 18 sections comprising the reservation, the court granted the preliminary injunction by order dated October 4, 1999.

Apart from the Tribe's ability to operate gaming at Pine Hills, there is another dispute between the State and the Tribe related to the boundary question. A number of tribal members living in the area in dispute, that is, within the original two-township reservation but outside the territory the State contends comprises the current reservation, are exempt from state income taxation only if they both reside and work on the reservation. The Tribe brought a counterclaim seeking a declaratory judgment that the 1856 boundaries of the reservation remain intact and an injunction barring the State from imposing income tax on tribal members residing within those borders with respect to income earned on the reservation. See Defendant's Counterclaim filed on April 28, 2000.

To address this matter, the parties agreed that pending final resolution of the boundary issue, the Tribe will withhold from the wages of affected tribal members — and hold in escrow — an amount equal to state income tax withholding. The parties further agreed that upon final judicial resolution of the reservation boundaries, the escrowed funds will be released either back to the tribal members, if they are found to reside within the reservation, or will be paid to the State, if the tribal members are found to reside outside the reservation. The court accepted the parties' stipulation by order dated April 12, 2000.

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because the matter arises under federal statutes. Venue is proper under 28 U.S.C. § 1391. The case was assigned according to the random assignment of civil cases pursuant to 28 U.S.C. § 636(b)(1)(B) and General Local Rule 72.1 (E.D.Wis.). The parties have consented to United States magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and General Local Rule 73.1 (E.D. Wis.).

Defendants Stockbridge-Munsee Community and Robert Chicks filed a motion for summary judgment on March 1, 2002. (Docket # 100). The motion was almost fully briefed when the death of the plaintiff's expert witness necessitated new briefing. Thereafter, supplemental expert witnesses were named and a revised briefing schedule was set. The United States then moved to filed a brief as amicus curiae in support of the defendants' assertion that the boundaries of the two-township reservation remained intact following the implementation of the Act of February 6, 1871, and the Act of June 21, 1906. The court granted the United States' motion. The defendants' motion for summary judgment is now ready for resolution and will be addressed herein.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Summary Judgment Standard

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-1461 (E.D.Wis.1991). "Material facts" are those facts that under the applicable substantive law "might affect the outcome of the suit." See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over "material facts" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The burden of showing the needlessness of a trial — (1) the absence of a genuine issue of material fact and (2) an entitlement to judgment as a matter of law — is upon the movant. In determining whether a genuine issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

However, when the nonmovant is the party with the ultimate burden of proof at trial, that party retains its burden of producing evidence which would support a reasonable jury verdict. Anderson, 477 U.S. at 267, 106 S.Ct. 2505; see also, Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548 ("proper" summary judgment motion may be "opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves ..."); Fed.R.Civ.P. 56(e). "Rule 56(c) mandates the entry of summary judgment, ... upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548 (emphasis added). In granting summary judgment, a "`court may consider any material that would be admissible at trial,' including properly authenticated and admissible documents or exhibits." Smith v. City of Chicago, 242 F.3d 737, 741 (7th Cir.2001) (quoting Woods v. City of Chicago, 234 F.3d 979, 988 (7th Cir.2000) (additional citations omitted)).

Civil Local Rule 56.2 (E.D.Wis.) sets forth additional requirements for motions for summary judgment. The court of appeals for this circuit "repeatedly upheld the strict enforcement of the requirements of district court local rules." See Waldridge v. American Hoechst Corp., 24 F.3d 918, 921 (7th Cir.1994).

Specifically, Civil L.R. 56.2(b)(1) provides that any response to a motion for summary judgment "must include:"

A specific response to the movant's proposed findings of fact, clearly delineating only those findings to which it is asserted that a genuine issue of material fact exists. The response must refer to the contested finding by paragraph number and must include specific citations to evidentiary materials in the record which support the claim that a dispute exists.

Likewise, Civil L.R. 56.2(b)(2) further provides that the movant responding to the opposing party's findings of fact must do so "in accordance with the provisions of subparagraph (b)(1) of this rule." To the extent a party has not provided evidentiary support for its proposed findings of fact or in opposition to a particular proposed finding of fact, such party has not raised an arguable factual dispute. See Civil L.R. 56.2. Moreover, Civil L.R. 56.2(e) provides that the court must conclude that there is no genuine material issue as to any proposed finding of fact to which no response is set out.

Relevant Undisputed Facts¹

The Parties

Plaintiff State of Wisconsin (State) is a sovereign state of the United States. Defendant Stockbridge-Munsee Community (Tribe) is a sovereign federally-recognized Indian tribe (62 Fed.Reg. 55,273 [1997]) with a reservation located in Shawano County, Wisconsin, within the Eastern District of Wisconsin. Defendant Robert Chicks is President of the Stockbridge-Munsee Mohican Community. His duties include presiding over the affairs of the Tribe. The events giving rise to the claim asserted in this action have occurred, and continue to occur, in...