Federal Judge Sides With Wisconsin Tribe in Zoning Dispute

MADISON, Wis. (CN) – A federal judge ruled Thursday in favor of an Indian tribe based in northern Wisconsin, for now settling the tribe’s beef with a county over whose zoning ordinances have ultimate authority over reservation lands.

The Red Cliff Band of Lake Superior Chippewa Indians first sued Bayfield County in October 2018, asserting that the county’s attempts to enforce its zoning ordinances on land held by tribal members violated federal law.

The tribe’s reservation on the south shore of Lake Superior in the northeast corner of the county was first partitioned as part of a historic 1854 treaty known as the Treaty with the Chippewa after decades of negotiations.

The federal government executed the treaty with Lake Superior bands of Ojibwe in Minnesota, Wisconsin and Michigan. The Ojibwe, of which the Lake Superior Chippewa are a successor, ceded more than 7 million acres of land rich in iron deposits in return for a government promise of permanent, tax-exempt reservations.

The tribe’s reservation today comprises about 14,540 square acres, roughly 1% of Bayfield County’s 2,042 square miles. At dispute in the tribe’s lawsuit are 511 acres of fee simple lands owned by tribal members.

The tribe essentially claims that the county overstepped its authority by attempting to enforce its own zoning codes, which were first laid out in 1976, on lands held by tribal members without congressional say-so.

U.S. District Judge William Conley, a Barack Obama appointee, agreed with the tribe Thursday, writing 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.”

Conley’s 22-page opinion said the case harkens back to “a general principle, which remains in place today, that a state may not regulate activities on tribal reservations and of tribal members on reservations absent express congressional authority.”

The complex questions of tribal sovereignty over its reservation lands and the tangled interrelationship between the reservation and local, state and federal governments are at the core of the case.

The Red Cliff Band adopted its own constitution in 1936 after the enactment of the Indian Reorganization Act two years earlier. The tribe’s own land use ordinance, established in 1993 and amended in 2003, put in place an internal review board and zoning committee which reviews applications, holds hearings, adopts regulations and approves or disapproves permits for landowners separately from Bayfield County’s own zoning board.

The specific tiffs over land usage central to the tribe’s lawsuit originated in 2016 when Curtis and Linda Basina satisfied all the tribe’s internal requirements to build and operate a microdistillery known as the Copper Crow Distillery, and Linda Basina received a similar permit to do driveway construction on her own property.

Bayfield County attempted to force compliance with its own zoning codes related to the distillery and sued Linda Basina in 2017 for building a driveway on her property without a permit.

Conley ultimately found that in both cases, the county’s attempts to comprehensively enforce its own zoning ordinances in place of the tribe’s internal ordinances violate federal Indian law.

Red Cliff Tribal Chairman Rick Peterson said in a statement Thursday that the tribal council “remains committed to defending unlawful assertions of non-tribal authority.”

“As we cautioned previously, Bayfield County’s intrusion into the Red Cliff tribal government’s right to govern its members within its own territory will not go unchecked,” Peterson said.

Tribal attorney David Ujke called the ruling, which prohibits the county from enforcing its zoning ordinances against the tribe or its members, an important win for the tribe.

“This case was really about the right of the Red Cliff Tribe to govern its own members within its own territory,” Ujke said in a statement. “We’re glad that the federal court acknowledged that central premise.”

The tribe was also represented in its suit by counsel with the firm Godfrey & Kahn based in Milwaukee.

Conley repeatedly made a distinction in his opinion between laws that enforce taxation of reservation lands and zoning of reservation lands.

The Red Cliff band is part of another federal suit with three other Lake Superior Chippewa tribes over the Badger State’s attempts to collect property taxes on reservation lands acquired through the 1854 treaty.

That case is set for trial on June 8 in Madison.

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