United States District Court, W.D. Wisconsin
Michael Ujke, Red Cliff Band of Lake Superior Chippewa,
Bayfield, WI, James Alan Friedman, Godfrey & Kahn, S.C.,
Madison, WI, Jonathan T. Smies, Godfrey & Kahn, S.C.,
Green Bay, WI, Brian L. Pierson, Godfrey & Kahn, S.C.,
Milwaukee, WI, for Plaintiff.
Kristin Renee Pierre, Michael J. Modl, Axley Brynelson, LLP,
Madison, WI, Micheal D. Hahn, Nowlan & Mouat LLP,
Janesville, WI, for Defendant.
M. CONLEY, District Judge.
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
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 Fed.Reg. 34863, 34865,
July 23, 2018.
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
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.
of Bayfield County, Wisconsin," Wisconsin Online,
visited Jan. 3, 2020).
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.,
(last visited Jan. 3, 2020).
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
Fee lands owned by the Tribe
Trust or restricted fee lands owned by tribal members
Fee lands owned by tribal members
United States Apostle Islands Lakeshore (federal)
Forest fee lands owned by Bayfield County
Fee lands owned by non-Indians other than the 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.
(Williams Aff., Ex. A (dkt. #12-1).)
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 number 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.
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