The Menominee Nation won a landmark victory in the Wisconsin Supreme Court earlier this week in a decision that recognized the tribe’s right to reclaim land on its reservation.
In a 4 to 3 decision, the court ruled the non-tribal Legend Lake Property Owners Association located on the Menominee Reservation cannot sue to block the tribe from buying back land on its own reservation and transferring it to a federal trust, meaning it would be free from local jurisdiction and taxes.
“Tribal sovereign immunity is the rule, not the exception,” Justice Susan Crawford wrote for the majority, recognizing the Menominee as the oldest known continuous residents of what is now known as Wisconsin. “A litigant can overcome tribal sovereign immunity if Congress abrogates it or if a tribe clearly waives it. Neither occurred here.”
The Menominee Nation lost more than 5,000 acres of its land to a non-tribal development called Legend Lake when the federal government terminated its tribal recognition.
Sovereign status and federal recognition as a tribal nation ended for the Menominee on April 30, 1961, and wasn’t restored until 1973, thanks to the efforts of tribal leaders at the time.
The termination occurred during the Cold War, when some federal legislators thought tribal governments’ “communal” way of management was too close to communism, according to the Milwaukee Public Museum’s Wisconsin Indian Resource Project, which educates public school teachers in the state.
The Menominee Nation was one of 60 tribes selected for termination — out of the more than 500 tribes in the country — and the only tribe in Wisconsin selected. The Menominee were chosen because some legislators believed the tribe’s sustainable lumber mill would be enough to support the newly formed Menominee County.
With an insufficient property tax base as the least populated and poorest county in the state, public-service needs in Menominee County soon dwindled the tribe’s financial reserves. Schools closed, a hospital closed, roads fell into disrepair and services suffered. The reduced standard of living led to large protests, resistance and, in some cases, open revolt by many Menominee and their supporters.
To help make up for the county’s financial shortfall, a corporation called Menominee Enterprises Inc. was formed to take ownership of all tribal property when the reservation became a county and started selling tribal land to a private developer. That land became the Legend Lake housing development.
About 2,700 residential lots and an artificial lake were created on roughly 1,300 acres. The average listing price of homes today in Legend Lake is about $560,000, with lakefront properties costing up to about $1 million.
Through lobbying efforts of tribal leaders, Congress halted its termination policy under the direction of President Richard Nixon in 1973. It had become apparent that termination didn’t have its desired effect, not just with the Menominee but across the country.
In 1998 as the Menominee Nation started earning some real revenue through the advent of the tribal gaming compact with the state, the Menominee Tribal Legislature passed a resolution to start purchasing back property it lost during the termination era. The intent was to place it back in federal trust to help protect it from being taken again.
Beginning that same year, the Legend Lake Property Owners Association started adding restrictive covenants to its bylaws to prevent the tribe from reacquiring its former reservation lands. The amendments also prohibited any transfer that would remove property from the county tax rolls, exempt property from real estate taxes or remove property from county zoning authority or the jurisdiction of the state.
In 2017, when a tribal member on behalf of the Menominee Nation acquired title to more than 30 lots within the Legend Lake development, the Association filed a lawsuit claiming its covenants were valid and legally enforceable.
Now, Crawford and three other justices ruled June 23 that these restrictive covenants they created are not enforceable against the Menominee Nation within the boundaries of its reservation.
Justice Rebecca Bradley wrote the dissenting opinion.
“The correct answer cannot be that the tribe always wins no matter what; otherwise a tribe could wield sovereign immunity as a sword and seize property with impunity, even without a colorable claim of right,” Bradley wrote.
Justice Brian Hagedorn also wrote a dissenting opinion. He argued the federal government should have more of a presence in the case since the properties in question were being transferred to a federal trust.
“This case raises thorny federal and tribal law issues affecting the property rights pertaining to lots in the Legend Lake Property Owners Association,” Hagedorn wrote. “But these questions come to us in a most unusual posture. The long and short of it is that the owner of the lots — the United States government — is not a party to this case. Therefore, we should not decide these weighty and consequential legal questions without the owner of the property having its day in court.”
Frank Vaisvilas is a former Report for America corps member who covers Native American issues in Wisconsin based at the Milwaukee Journal Sentinel. Contact him at fvaisvilas@usatodayco.com or 815-260-2262. Follow him on X at @vaisvilas_frank.
This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court backs tribe’s right to reclaim reservation land
Reporting by Frank Vaisvilas, Milwaukee Journal Sentinel / Milwaukee Journal Sentinel
USA TODAY Network via Reuters Connect
By Frank Vaisvilas, Milwaukee Journal Sentinel | USA TODAY Network
