Wisconsin Legislature: Oneida Indians; Waste Management;

76 Op. Att'y Gen. 189, 197 (1987)

4. Does the Oneida Tribe of Wisconsin have the authority to enter into an enforceable agreement with METRO? If not, what statutory amendments or other action do you suggest to provide the Oneida Tribe of Wisconsin with that statutory authority?

76 Op. Att'y Gen. 189, 197 (1987)

The Oneida Tribe is organized under the Indian Reorganization Act of June 18, 1934 (48 Stat. 984, 25 U.S.C. 461-478 (1983)), and has adopted a constitution and bylaws pursuant thereto which set forth the basic organization for the exercise of tribal governmental power (25 U.S.C. 476 (1983)). Also, pursuant to the Act, the tribe secured a corporate charter from the federal government for the purpose of engaging in business activities (25 U.S.C. 477 (1983)). Both the corporate charter and the constitution and bylaws were approved by the Secretary of the Interior. Under the Act, both the tribal government and the tribal corporation are authorized to enter into contracts.

Merrion v. Jicarilla Apache Tribe

, 455 U.S. 130, 134, 147 (1982);

Montana v. United States

, 450 U.S. 544, 565 (1981);

Blackfeet Tribe of Blackfeet Indian v. Wippert

, 442 F. Supp. 65, 66 (1977).

76 Op. Att'y Gen. 189, 197 (1987)

Certain contracts with Indian tribes or individual tribe members are subject to the provisions of 25 U.S.C. 81 (1983). That statute provides in relevant part:

76 Op. Att'y Gen. 189, 198 (1987)

No agreement shall be made... with any tribe of Indians, or individual Indians... in consideration of services for said Indians relative to their lands... unless such contract or agreement be executed and approved as follows:...

76 Op. Att'y Gen. 189, 198 (1987)

....

76 Op. Att'y Gen. 189, 198 (1987)

2. It shall bear the approval of the Secretary of the Interior and the Commissioner of Indian Affairs endorsed upon it.

76 Op. Att'y Gen. 189, 198 (1987)

Pursuant to this statutory language, any agreement with the Oneida Tribe or individual tribe members that would affect trust land would be void unless it is approved by the Secretary of the Interior.

A.K. Management Co. v. San Manuel Band of Mission Indians

, 789 F.2d 785 (9th Cir. 1986);

United States ex rel. Shakopee v. Pan American Management Company

, 616 F. Supp. 1200 (D. Minn. 1985),

appeal

dismissed

789 F.2d 632 (8th Cir. 1986).

Wisconsin Winnebago Business Committee v. Koberstein

, 762 F.2d 613 (7th Cir. 1985). As an agreement between METRO and the Oneida Tribe would likely implicate trust lands,¯

such an agreement would require secretarial approval.

76 Op. Att'y Gen. 189, 198 (1987)

Also, under 25 U.S.C. 2004a (1983), the Secretary of Health and Human Services is authorized to acquire land and make agreements to enable the department to provide essential sanitation facilities to Indian homes and communities. Presumably, the Oneida Tribe in cooperation with the Department of Health and Human Services would be contracting with METRO under the auspices of this statute. Under this statute the federal government would be a party to the contract. If the federal government is involved questions of enforceability are resolved. 28 U.S.C. 1491 (1983);

United States v. Testan

, 424 U.S. 392 (1976).

76 Op. Att'y Gen. 189, 198 (1987)

Whether the Oneida Tribe has authority under its organic laws to enter into any contract is a question in the first instance that must be answered by the tribe.

76 Op. Att'y Gen. 189, 198-199 (1987)

5. Is it necessary for the Oneida Tribe of Wisconsin to waive whatever sovereign immunity it may have for the agreement to be enforceable, and if it is, does the Oneida Tribe have the authority to do so?

76 Op. Att'y Gen. 189, 199 (1987)

The enforceability of an agreement between METRO and the Oneida Tribe will depend in large part upon the terms of that agreement. In numerous decisions, both in the federal and state courts, it has been held that Indian tribes enjoy sovereign immunity from suits similar to that of the United States.

See

e.g.

Santa Clara Pueblo v. Martinez

, 436 U.S. 49 (1978);

Puyallup Tribe, Inc. v. Department of Game

, 433 U.S. 165 (1977);

United States v. United States Fidelity and G. Co.

, 309 U.S. 506 (1940);

U.S. v. Oregon

, 657 F.2d 1009, 1012 (9th Cir. 1981);

Maryland Casualty Co. v. Citizens Nat. Bank of West Hollywood

, 361 F.2d 517, 520 (5th Cir. 1966);

State v. Peterson

, 98 Wis. 2d 487, 492, 297 N.W.2d 52 (Ct. App. 1980). It is unsettled whether an Indian tribe on its own may waive its sovereign immunity to suit, though it has been allowed.

Big Spring v. U.S. Bureau of Indian Affairs

, 767 F.2d 614 (9th Cir. 1985);

Merrion v. Jicarilla Apache Tribe

, 617 F.2d 537 (10th Cir. 1980),

aff'd on other grounds

455 U.S. 130 (1982);

Native Village of Gyak v. GC Contractors

, 658 P.2d 756 (Alaska 1983);

U.S. v. Oregon

, 657 F.2d 1009 (9th Cir. 1981);

Namekagon Dev. Co. v. Bois Forte Res. Housing Authority

, 395 F. Supp. 23 (D. Minn. 1974),

aff'd

, 517 F.2d 568 (8th Cir. 1975). A tribe cannot waive its immunity by contract in matters affecting trust property without secretarial or congressional consent. 25 U.S.C. 81 (1983). It is unsettled whether tribes may waive their immunity without congressional authorization in contracts not related to trust property. The Oneida Tribe may have inherent authority to waive its immunity to suit in its own courts, at least where trust property is not affected. However, any waiver of immunity by the tribe must be express, as "[i]t is settled that a waiver of sovereign immunity 'cannot be implied but must be unequivocally expressed.'"

Santa Clara Pueblo v. Martinez

, 436 U.S. 49 (1978), quoting

United States v. Testan

, 424 U.S. 392 (1976).

See

also

State of Wisconsin v. Baker

, 698 F.2d 1323, 1331 (7th Cir. 1983).

76 Op. Att'y Gen. 189, 199-200 (1987)

Most tribal immunity cases since 1934 center on the provisions of the Indian Reorganization Act. Some courts have held that tribes entering into business contracts through the tribal corporation can waive immunity to suit.

See

e.g.

Maryland Cas. Co. v. Citizens Nat. Bank of West Hollywood

, 361 F.2d 517 (5th Cir. 1966),

cert.

denied

, 385 U.S. 918 (1966);

Parker Drilling Co. v. Metlakatla Indian Community

, 451 F. Supp. 1127 (1978).

76 Op. Att'y Gen. 189, 200 (1987)

Clearly, the tribe's sovereign immunity will affect in some circumstances the enforceability of an agreement between METRO and the tribe. It is beyond the scope of this opinion to discuss options or contract language that may be available to overcome any sovereign immunity problem that may exist. Agreements between METRO and the Oneida Tribe in its non-governmental capacity (

i.e.

, business capacity) that do not implicate trust lands could be one way to overcome most, if not all, of the enforceability problems relating to tribal sovereign immunity. Perhaps this would be useful where services to tribal businesses are contemplated.

76 Op. Att'y Gen. 189, 200 (1987)

6. If the Oneida Tribe of Wisconsin does have authority to enter into an enforceable agreement with METRO, with or without the prerequisite of an enforceable waiver of sovereign immunity:

76 Op. Att'y Gen. 189, 200 (1987)

(a) In what jurisdiction would the agreement be enforceable?

76 Op. Att'y Gen. 189, 200 (1987)

It is unclear as to what jurisdiction the agreement would be enforceable in. It no doubt would be in the interest of the parties to address in the agreement any uncertainty concerning choice of laws or judicial forums for resolving disputes. In designating in the agreement the jurisdiction(s) where disputes concerning the terms of the agreement would be enforceable, consideration will need to be given to the fact that in sections 66.20-26 references are made to resolving disputes in state circuit court pursuant to chapter 227.

76 Op. Att'y Gen. 189, 200 (1987)

(b) Would the agreement with the tribe be enforceable as to its individual tribal members?

76 Op. Att'y Gen. 189, 200-201 (1987)

Whether individual tribe members residing on heirship land or trust allotments would be bound by the terms of the agreement between METRO and the tribe is unclear. As already indicated, the Oneida Tribe possesses governmental authority over both its members and its territory. Tribal governmental authority has been specifically upheld in such areas as the regulation of tribal hunting and fishing activities (

Settler v. Lameer

, 507 F.2d 231 (9th Cir. 1974)), domestic relations (

United States v. Quiver

, 241 U.S. 602 (1912);

Fisher v. District Court

, 424 U.S. 382 (1976)), zoning (

Knight v. Shoshone & Arapahoe Indian Tribes, et al.

, 670 F.2d 900 (10th Cir. 1982);

see

also

71 Op. Att'y Gen. 191, 192 (1982)), tribal membership (

Santa Clara Pueblo v. Martinez

, 436 U.S. 49 (1978)); property transactions (

Crabtree v. Madden

, 54 F. Rptr. 426 (8th Cir. 1893)), power to license and tax property and commercial activity (

Morris v. Hitchcock

, 194 U.S. 384 (1904);

Buster v. Wright

, 135 F. Supp. 947 (8th Cir. 1905),

appeal

dismissed

203 U.S. 599 (1906);

Washington v. Confederated Tribes of Colville Indian Reservation

, 447 U.S. 134 (1980)). As already indicated, tribal power to zone trust lands within reservation boundaries was noted in 71 Op. Att'y Gen. 191 (1982).