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172 Tribe Motion for Summary J Case: 3:18-cv-00992-jdp Document #: 172 Filed: 12/02/19 Page 1 of 64 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN LAC COURTE OREILLES BAND OF LAKE SUPERIOR CHIPPEWA INDIANS OF WISCONSIN, et al., Plaintiffs, Court File No. 18-cv-992-jdp v. TONY EVERS, Governor of the State of Wisconsin, et al., Defendants. Memorandum in Support of Plaintiff Tribes’ Motion for Summary Judgment Introduction and Legal Standard Summary judgment is appropriate where the movant has demonstrated there is no genuine dispute as to any material fact, and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). As the moving party, the Tribes bear the initial burden of demonstrating the absence of any genuine issues of material fact. Scaife v. Cook Cnty., 446 F.3d 735, 739 (7th Cir. 2006). Once the Tribes make this demonstration, however, the Defendants must then set forth, through competent and material evidence, specific facts establishing a genuine issue for 1 Case: 3:18-cv-00992-jdp Document #: 172 Filed: 12/02/19 Page 2 of 64 trial. See Lindemann v. Mobil Oil Corp., 141 F.3d 1286, 1291 (7th Cir. 1997); Contreras v. City of Chi., 119 F.3d 1286, 1290 (7th Cir. 1997). An issue of fact is “genuine” only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” and it is “material” only if the fact, if established, might affect the outcome of the lawsuit under the substantive law of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmovant must do more than present a scintilla of evidence or cast metaphysical doubt as to the material fact; there must be evidence on which the jury could find for the nonmovant. Matushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). As shown below, the Tribes have demonstrated that there is no genuine issue as to any material fact and that they are entitled to summary judgment on Counts I, II, and IV of their Complaint, and the certain equitable defenses asserted by the local governments and assessors. In Count I, the Tribes assert that Defendants cannot assess or enforce taxes under Chapter 70 of the Wisconsin Statutes upon properties owned in fee simple by the Tribes and their members within the exterior boundaries of the Lac Courte Oreilles Reservation, the Lac du Flambeau Reservation, the Bad River Reservation, and the Red Cliff Reservation (the “Reservation Fee Lands” within the collective “Reservations”), because such actions would violate the provisions of the 1854 Treaty, 10 Stat. 1109, which set apart the Reservations as permanent homes for the Tribes and their members, and explicitly provided that they would never be 2 Case: 3:18-cv-00992-jdp Document #: 172 Filed: 12/02/19 Page 3 of 64 involuntarily removed therefrom. Id. at arts. II & XI. Treaty rights can only be abrogated through clear and explicit congressional action, and their abrogation requires the payment of just compensation. No such congressional action (or corresponding payment) occurred here. In Count II, the Tribes argue, in the alternative, that even if the 1854 Treaty does not preclude taxation of Reservation Fee Land, the Defendants are precluded from imposing taxes on Indian-owned property within an Indian reservation absent an unmistakably clear authorization by Congress. While the Defendants point to the General Allotment Act and the Burke Act for this authorization, neither statute applies to the Tribes’ Reservations. The Tribes are entitled to a permanent injunction under Count IV of the Complaint to prevent the Defendants from continuing to violate the federal treaty and common-law rights possessed by the Tribes and their members. Furthermore, the Tribes are entitled to summary judgment on the affirmative defenses raised but not supported by the Defendants. Because there are no material facts in dispute, the Tribes are entitled to a judgment as a matter of law. Argument I. The Court should grant summary judgment for the Tribes on Count I of the Complaint. In September 1854, the Lake Superior Ojibwe ceded seven million acres of land in northeastern Minnesota to the United States. 1854 Treaty, art. I; Keweenaw Bay Indian Community v. Naftaly, 452 F.3d 514, 525 (6th Cir. 2006). In exchange for this mineral-rich 3 Case: 3:18-cv-00992-jdp Document #: 172 Filed: 12/02/19 Page 4 of 64 territory, they received nominal monetary compensation: somewhere between three and seven cents per acre. See 1854 Treaty, art. IV (providing just $100,000 in money annuities distributed over a 20-year period, in addition to the payment of trader debts and funds used to purchase specified goods); PFOF ¶ 121. This was less than one-half the sum they had initially requested when offering to sell the same territory in an earlier, failed treaty negotiation. PFOF ¶ 122 (noting that during failed treaty discussions in 1847, the Ojibwe refused to cede this land for less than one million dollars). This did not cause alarm, however, because the real benefit the Lake Superior Ojibwe were negotiating for was not monetary. They sought “permanent homes” or ”reservations” within their ancestral territory, coupled with the promise that they would never again be forced to leave those homes. The guarantee of a permanent home was of immense importance to the Lake Superior Ojibwe. In two prior treaties, the Indians had unwittingly ceded all their land in Wisconsin to the United States, believing they were only selling the ability to cut pine timber and extract copper and other minerals. Treaty of St. Peters, 7 Stat. 536 (July 29, 1837); Treaty with the Chippewa, 7 Stat. 591 (October 4, 1842); PFOF ¶¶ 62-64, 76. The Lake Superior Ojibwe believed the words of federal treaty commissioner Robert Stuart, who assured them during negotiations in 1842, that the federal government did not want their land, which was ill-suited to agriculture. PFOF ¶ 76. Indeed, Stuart told the Ojibwe that they could continue their traditional hunting, fishing and gathering 4 Case: 3:18-cv-00992-jdp Document #: 172 Filed: 12/02/19 Page 5 of 64 throughout their aboriginal territory for 50 to 100 years or more, unless they committed depredations on whites. PFOF ¶ 79. Yet the text of the 1842 Treaty contained no such assurances. Instead, Article II stated that the Indians retained such rights only “until [they were] required to remove by the President of the United States.” PFOF ¶ 78. Contrary to Stuart’s promises, not long after signing the 1842 Treaty, federal officials began their efforts to remove the Lake Superior Ojibwe in Wisconsin to lands in the Minnesota Territory. PFOF ¶ 80. But officials underestimated Ojibwe ties to their homeland. The Ojibwe were inextricably linked to the land they believed the Creator had led them to, and they refused to leave the graves of their ancestors. PFOF ¶¶ 84, 108, 134. When federal officials unilaterally changed the location of annuity payments to Sandy Lake in the hopes of tricking the Ojibwe into removing to the Minnesota territory, hundreds of tribal members died of starvation, disease, and cold, in a disaster that even the State’s expert acknowledges was on the same scale as the Cherokee Trail of Tears. PFOF ¶¶ 91-96. In 1854, then, when the United States approached the Lake Superior Ojibwe to ask them to cede even more land, tribal negotiators demanded and received firm promises. Article II of the 1854 Treaty set aside four sizeable reservations in Wisconsin for the Lake Superior Ojibwe that lived there: Red Cliff, Bad River, Lac du Flambeau, and Lac Courte Oreilles. Article XI of the 1854 Treaty promised that “the Indians shall not be required to remove from the homes hereby set apart for them.” PFOF ¶ 136. 5 Case: 3:18-cv-00992-jdp Document #: 172 Filed: 12/02/19 Page 6 of 64 Articles II and XI of the 1854 Treaty, when read in pari materia plainly forbid Wisconsin’s taxation of Reservation Fee Lands, which could result in involuntary forfeiture and tax sale proceedings. While the Tribes welcome a trial in this matter, there are no genuine issues of material fact that preclude this Court from entering a judgment in their favor on Count I of the Complaint. The Tribes’ three expert witnesses have each opined, based on thousands of archival documents, that the Indian understanding of the 1854 Treaty precludes state taxation of the Reservation Fee Lands. Treuer Rep., Dkt. 83, 26-27; Bowes Rep., Dkt. 85, 99; Sullivan Rep., Dkt. 84, 29-30. The Defendant’s only proponent expert, Dr. Jay Brigham, notes only that the 1854 Treaty does not explicitly mention taxation. Dkt.82 at 1 (“The 1854 La Pointe Treaty . did not expressly address the taxability of reservation lands”). But the U.S. Supreme Court has held on several occasions that a treaty right precluding state taxation can exist without such language. E.g., Washington State Dep’t of Licensing v. Cougar Den, Inc., 139 S.Ct. 1000 (2019); Tulee v. Washington, 315 U.S. 681, 684 (1942). Dr. Brigham did not collect or review any historical evidence surrounding the negotiation of the 1854 Treaty, Dkt. 115-2, Brigham Dep. 128:1-129:5, and since Indian treaties are interpreted in accordance with the way they were understood by the tribal negotiators who signed them, Minnesota v. Mille Lacs Band of Chippewa, 526 U.S. 172, 196 (1999), his opinion is of no use to this Court and should be excluded in its entirety.
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