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Red Cliff Band of Lake Superior Chippewa Indians v. Bayfield County

United States District Court, W.D. Wisconsin

January 9, 2020

RED CLIFF BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, Plaintiff,
v.
BAYFIELD COUNTY, WISCONSIN, Defendant.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         Plaintiff Red Cliff Band of Lake Superior Chippewa Indians seeks a declaratory judgment that enforcement of defendant Bayfield County's zoning code on fee simple land held by tribal members within the Red Cliff Band Reservation violates federal Indian law. Before the court is plaintiff's fully briefed motion for summary judgment (dkt. #10), on which the court heard oral argument on November 21, 2019. For the reasons that follow, the court will grant plaintiff's motion for summary judgment, finding that it is not unmistakably clear that Congress intended to allow application of the County's zoning regulations on land held by tribal members within the boundary of the reservation.

         UNDISPUTED FACTS[1]

         A. Red Cliff Band

         Plaintiff Red Cliff Band of Lake Superior Chippewa Indians (“Red Cliff Band” or the “Tribe”) is a sovereign Indian tribe exercising governmental authority over its citizens and territory pursuant to its aboriginal sovereignty and a Constitution adopted under the Indian Reorganization Act of 1934 (“IRA”), 48 Stat. 984, as codified at 25 U.S.C. §§ 5101 et seq. The Tribe is acknowledged by the United States “to have the immunities and privileges available to federally recognized Indian Tribes by virtue of their government-to-government relationship with the United States as well as the responsibilities, powers, limitations, and objections of such Tribes.” 83 F.3d. Reg. 34863, 34865, July 23, 2018.[2]

         For most of its history, the Tribe was governed by traditional, clan-based structures. In 1936, the Tribe adopted a Constitution under the IRA. The Tribe today is governed by an elected, nine-member Tribal Council, including a Chair, Vice-Chair, Secretary and Treasurer, serving staggered, two-year terms. The Tribal Council exercises both executive and legislative powers, while the Tribal Court exercises judicial powers.

         B. Bayfield County

         Defendant Bayfield County is located within the State of Wisconsin. Wis.Stat. § 2.01(4). The following map depicts the County's boundaries as demarcated by neighboring Ashland, Douglas and Sawyer Counties and Lake Superior, with the Red Cliff Reservation comprising the shaded area in the upper right hand corner of Bayfield County.

         (Image Omitted)

         “Map of Bayfield County, Wisconsin, ” Wisconsin Online, https://www.wisconline.com/counties/bayfield/map.html (last visited Jan. 3, 2020).

         Title 13 of the Bayfield County ordinances sets forth the County's comprehensive zoning code. Title 13 - Chs. 1-3, Code of Ordinances, Bayfield Cty., Wis., https://www.bayfieldcounty.org/752/County-Ordinances (last visited Jan. 3, 2020).

         C. The Reservation

         Established and guaranteed to the Tribe by the La Pointe Treaty, the Tribe's Reservation is located on the shores of Lake Superior as depicted, encompassing approximately 14, 540 square acres or about 1% of Bayfield County's 2, 042 square miles. The Reservation lands are currently held as follows, with approximate acreages assigned to each category:

• Trust lands owned by the Tribe 6, 331 acres
• Fee lands owned by the Tribe 1, 047 acres
• Trust or restricted fee lands owned by tribal 1, 767 acres members
• Fee lands owned by tribal members 511 acres
• United States Apostle Islands Lakeshore (federal) 1, 540 acres
• Forest fee lands owned by Bayfield County 1, 500 acres
• Fee lands owned by non-Indians other than the 1, 845 acres County

(Williams Aff. (dkt. #12) ¶ 12.) These categories of land held within the Reservation's boundaries are also depicted in the following 2014 Land Ownership Map.

         (Image Omitted)

         (Williams Aff., Ex. A (dkt. #12-1).)

         Relying on the Tribe's demographic information, plaintiff represents that 83% of the approximately 1, 353 persons who reside on the Reservation are Indians. Defendant objects to this figure on foundation grounds; it also points out that this No. does not differentiate between members of the Tribe and members of a different tribe who may be Indian. Regardless, during the period from 1877 to 1897, the Reservation land was allotted to then tribal members, who received “patents” on that land subject to restrictions that neither the patentee nor his or her heirs could “sell, lease or in any manner alienate said tract without the consent of the President of the United States.” In the following decades, however, the restrictions on alienation were removed from many of the Red Cliff patents, and some of the allotment lands passed out of tribal hands as fee simple land to non-tribal members.

         In 1934, Congress enacted the IRA, which repudiated the policy of allotment without necessarily reversing it, which the court addresses in more detail in the opinion below. Following this repudiation, the Tribe and its members have overtime ...


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