Wisconsin Supreme Court upholds sovereign immunity in tribal lands case

MADISON, Wis. (CN) — The Wisconsin Supreme Court vindicated the Menominee tribe on Tuesday in a property case brought by a property owners association seeking to control how members use tribal lands.

“Today’s decision provides finality to the parties and acknowledges that factual circumstances have changed since the filing of the of the complaint … We acknowledge that ‘a fundamental commitment of Indian law is judicial respect for Congress’ primary role in defining the contours of tribal sovereignty,” Justice Susan Crawford said in her 24-page order.

The Legend Lake Property Owners Association sued the Menominee Indian Tribe of Wisconsin in 2018 to enforce a set of restrictive covenants around Legend Lake, where the tribe argued that sovereign immunity precluded the bylaws.

The bylaws included a waiver of sovereign immunity and restrictions on transferring land to a federal trust.

In 1954, Congress ended federal recognition of the Menominee Indian Tribe of Wisconsin through the Menominee Termination Act, then reversed course in 1973 with the Menominee Restoration Act.

During that period, the Menominee Reservation became Menominee County and parts of its tribal lands were sold for the Legend Lake Development within the former reservation. The property association was later formed to manage the area.

Since restoration, the tribe has gradually returned much of the land — including parts of the development — to federal trust status, reestablishing most of the county as a modern reservation about 150 miles north of Milwaukee.

Guy Keshena, a tribal member, purchased 40 plots of land around Legend Lake in 2017 on behalf of the tribe, and asked the United States to take the land into trust in 2018.

The property association sued to prevent this, unsuccessfully arguing that the restrictive covenants forbid the land transfer. The properties are held in trust by the federal government but isn’t a party to this case.

Though the dissenting justices wanted to remand the case to the circuit court to decide whether the litigation can continue without the United States as a party, the majority opted to end its analysis at tribal sovereignty.

“It is exceedingly odd — and in my view, improper — for this court to pass judgement on complicated matters of federal and tribal law when the property owner potentially affected by those determinations is not a party to the litigation,” Justice Brian Hagedorn said in his dissent.

The association made the case during oral arguments in October 2025 that Congress had abrogated the tribe’s sovereign immunity with the passage of the restoration act. It relies on the section permitting tribal members to transfer land to federal trust, which also states that the property remains subject to “all valid existing rights.”

However, the act does not contain a clear statement that doing so forfeits tribal sovereignty and abrogation may not be implied, according to the majority. Abrogation in this context would require “unmistakably clear” language in the statute.

“This court will not interpret the restoration act’s references to ‘valid existing rights’ in property transferred to trust by a tribal member more broadly than Congress intended,” Crawford said.

The high court maintained on Tuesday that the tribe’s sovereign immunity remains intact absent congressional abrogation, but the Interior Board of Indian Appeals ruled while the association’s appeal was pending that the restoration act preempted the restrictive covenants, shielding the tribe.

The justices were similarly unconvinced by the association’s alternative argument that the tribe waived its sovereign immunity by allowing Keshena to purchase the plots on its behalf.

Much like abrogation, waiver of immunity must be unequivocal, according to Crawford. In this case, the tribe did not authorize Keshena to accept the waiver conditions in the restrictive covenants.

Here and during oral arguments, the justices took issue with the apparent intent of the restrictive covenants.

“The association unilaterally imposed the restrictive covenants on the Legend Lake parcels in 2009 in an effort to prevent the tribe from restoring any of the property to its reservation. The tribe never affirmatively agreed to waive its sovereign immunity in state court actions regarding the restrictive covenants,” Crawford said.

For Keshena, the purchaser of the plots, the association’s action ends here as well.

The association sought a declaratory judgment that the remaining restrictive covenants are legally enforceable with respect to the Keshena lots, but this claim is not properly asserted against him because he no longer holds the title.

According to Crawford, even if he remained a proper defendant he would have been covered by sovereign immunity as well because the sovereign is the real party in interest.

In her dissent, Justice Rebecca Bradley accused the majority of handing the tribe a sword with which it can ‘seize property with impunity’ and argues that liberal majority improperly resolved the dispute without the participation of the true property owner.

Neither party could be immediately reached for comment.

Follow @desdev5