Wisconsin Rejects In Rem and Immovable-Property Exceptions to Tribal Sovereign Immunity; Unilateral Deed Covenants Cannot Waive Immunity

1. Introduction

This certified appeal asked whether the Menominee Indian Tribe of Wisconsin (the “Tribe”) and a tribal member, Guy Keshena, could be sued in Wisconsin circuit court by a homeowners’ association seeking to enforce restrictive covenants against land that was acquired for the Tribe and later taken into federal trust. The Legend Lake Property Owners Association (the “Association”) sought declaratory relief that certain “non-transfer” provisions of its 2009 restrictive covenants remained enforceable “in rem” against the lots—principally to keep the lots subject to Association rules, assessments, and municipal regulation—despite transfer into trust.

The key legal issues were jurisdictional and structural: (1) whether Congress abrogated tribal sovereign immunity through the Menominee Restoration Act (the “Restoration Act”); (2) whether the Tribe waived immunity (directly or through agency principles) via covenant language inserted by the Association; and (3) whether state-court “in rem” jurisdiction or a common-law “immovable property” exception defeats tribal sovereign immunity. A further procedural dispute concerned whether the United States—now the titleholder of the lots in trust—was an indispensable party (raised prominently in dissent).

2. Summary of the Opinion

The Wisconsin Supreme Court affirmed dismissal on the threshold ground of tribal sovereign immunity. It held:

• No congressional abrogation: The Restoration Act does not contain an “unmistakably clear” statement abrogating tribal sovereign immunity, and abrogation may not be implied from language preserving “valid existing rights” and allowing foreclosure “in accordance with the laws of the State of Wisconsin.”
• No waiver: Unilaterally imposed restrictive covenants cannot extract a waiver. The Tribe did not negotiate or accept deeds as a “purchaser,” and Keshena lacked actual or apparent authority to waive the Tribe’s immunity.
• No in rem exception: Wisconsin rejected an “in rem” carveout to tribal sovereign immunity (aligning with DNR v. Timber & Wood Prods. Located in Sawyer Cnty. and post-Upper Skagit Indian Tribe v. Lundgren authority).
• No immovable property exception: Wisconsin declined to recognize a common-law “immovable property” exception limiting tribal sovereign immunity.
• Claims against Keshena fail: Keshena was no longer a proper defendant after transfer to the United States; and in any event, the Tribe was the real party in interest under Lewis v. Clarke, so immunity barred the claims.

Because sovereign immunity was dispositive, the court expressly declined to address other issues (including preemption, ripeness, severability, validity under WIS. STAT. § 706.02(1), and indispensability of the United States).

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

3.2 Legal Reasoning

A. Threshold selection: sovereign immunity as a jurisdictional bar

Relying on Ruhrgas AG v. Marathon Oil Co. and Wisconsin’s “one sufficient ground” rule from Gross v. Hoffman, the court chose to resolve the appeal on sovereign immunity without reaching other matters. It characterized sovereign immunity as a bar to personal jurisdiction (citing Lister v. Bd. of Regents of Univ. of Wis. Sys.), and thus an appropriate threshold basis for dismissal.

The majority expressly rejected the dissent’s invitation to first remand for indispensability analysis, noting (i) Wisconsin precedent that indispensability is not jurisdictional (Heifetz v. Johnson), and (ii) the case’s protracted timeline and the circuit court’s existing immunity ruling.

B. Abrogation: “valid existing rights” is not a clear waiver-of-immunity instruction

The Association’s abrogation theory hinged on Restoration Act § 6(c), which preserves “valid existing rights” and provides that trust-transferred land remains “subject to foreclosure or sale” under Wisconsin law. The court held this language does not unmistakably authorize suit against the Tribe, and abrogation cannot be inferred from a general preservation of rights.

Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla. supplies the doctrinal move: even where underlying regulatory authority exists, the remedy of suing the tribe is not implied. The court also leaned on the modern “baseline position” from Michigan v. Bay Mills Indian Cmty. and the stringent clear-statement framework reiterated in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.

C. Waiver: the Association’s covenant language could not bind the Tribe (and agency theories failed)

The restrictive covenants purported to (1) select Menominee County Circuit Court as the exclusive forum and (2) “waive any defense ... based on sovereign immunity” by deed acceptance. The court treated this as categorically unlike C&L Enters. v. Citizen Band Potawatomi Indian Tribe of Okla., where the tribe itself drafted and tendered the contract and thereby clearly consented to dispute-resolution and enforcement mechanisms.

Here, the covenants were unilaterally imposed by the Association in 2009, expressly to impede reacquisition and trust conversion. The Tribe did not “accept[] the deed[s]” as a purchaser, and there was no negotiated exchange for a waiver. The court then rejected the attempt to impute waiver through Keshena:

• No actual authority under Mared Indus. v. Mansfield: the tribal resolution authorizing acquisition for trust placement did not manifest authority to waive sovereign immunity.
• No apparent authority under Hansche v. A. J. Conroy, Inc.: the Association did not “deal with” Keshena in a way that could support reasonable reliance on a perceived authority to waive immunity; thus no reliance element existed.

D. No “in rem” end-run around immunity

The Association argued that state courts should be able to proceed “in rem” against property within Wisconsin even if the Tribe is immune “in personam.” Wisconsin declined to create that exception, adopting the reasoning of DNR v. Timber & Wood Prods. Located in Sawyer Cnty. and aligning with the clarification in Upper Skagit Indian Tribe v. Lundgren that County of Yakima v. Confederated Tribes and Bands of Yakima Nation did not resolve any sovereign immunity question.

The majority also stressed practical consequences: the covenants would materially constrain the Tribe’s use and economic benefit of the land and impose ongoing financial obligations (dues/assessments), making the suit functionally “against the sovereign” even if styled as property-based.

E. No common-law “immovable property” exception for tribes

The court refused to recognize a “common law immovable property exception” as a limitation on tribal immunity, citing the absence of any authority that had adopted such an exception for tribes and relying instead on post-Upper Skagit state authority rejecting it—Flying T Ranch, Inc. v. Stillaguamish Tribe of Indians and Self v. Cher-Ae Heights Indian Cmty. of Trinidad Rancheria. A central theme was institutional: the Supreme Court’s repeated deference to Congress to define any limits on tribal immunity (Michigan v. Bay Mills Indian Cmty.).

The majority added an alternative, case-specific observation: even if such an exception existed, it would not apply because the lots are now part of the Menominee Reservation (Indian country), where primary jurisdiction rests with the federal government and the Tribe (citing Alaska v. Native Vill. of Venetie Tribal Gov't), and state jurisdiction is at most concurrent in certain contexts (citing Oklahoma v. Castro-Huerta).

F. Immunity’s extension to Keshena via “real party in interest”

The court dismissed the action against Keshena for two reasons:

• Proper-party problem: Keshena no longer held title or an interest after transfer; the requested relief concerned land now held by the United States in trust for the Tribe.
• Real-party-in-interest doctrine: Under Lewis v. Clarke, the question is whether the remedy operates against the sovereign. Enforcing covenants against the lots would operate against the Tribe as beneficiary of the trust property, so tribal sovereign immunity barred the claim even if Keshena were nominally sued.

3.3 Impact

Immediate doctrinal effects in Wisconsin

• Clear state precedent that Wisconsin courts will not recognize either (a) an “in rem” exception or (b) a common-law “immovable property” exception to tribal sovereign immunity.
• Reinforced waiver standards: restrictive covenants (even those recorded and “running with the land”) do not constitute a tribal waiver absent the Tribe’s clear, affirmative assent; agency theories will be scrutinized under conventional Wisconsin authority and require concrete reliance and manifestations of authority.
• Expanded practical shield for trust-beneficiary interests: plaintiffs cannot avoid immunity by targeting an individual tribal member when the requested remedy effectively binds the Tribe as the real party in interest.

Consequences for private land-use regimes (HOAs) near Indian country

• Covenant drafting limits: HOA attempts to draft “anti-trust,” “anti-sovereign,” or “immunity-waiver” clauses into covenants are unlikely to be enforceable against tribes in Wisconsin absent a negotiated waiver. This matters for communities attempting to preserve tax base, zoning authority, or assessment revenue.
• Litigation channeling: The decision indirectly pushes disputes toward (i) negotiated agreements with tribes, (ii) federal administrative and judicial review of trust acquisitions (as occurred via IBIA and federal district court here), or (iii) congressional action if broader remedies are desired.
• Declaratory judgment limits: Even “non-possessory” declaratory relief about property obligations may be barred where its practical effect constrains the Tribe’s land use or finances.

Interaction with federal policy and preemption

Although the court did not decide preemption, the litigation record reflected consistent federal outcomes: Legend Lake Prop. Owners Ass'n v. Midwest Reg'l Dir., Bureau of Indian Affs. (IBIA 2023) and Legend Lake Prop. Owners Ass'n v. U.S. Dep't of the Interior (E.D. Wis. 2024) both treated core transfer-blocking covenants as preempted by the Restoration Act. Wisconsin’s immunity-first approach means future plaintiffs may never reach merits-based preemption arguments in state court when a tribe is an indispensable target of relief.

Dissents’ likely influence

• Bradley, J., dissent: argued tribes have only the “common-law immunity from suit traditionally enjoyed by sovereign powers,” and therefore common-law exceptions—especially an immovable property exception discussed in foreign and state sovereign immunity cases like Schooner Exch. v. McFaddon and Georgia v. Chattanooga—should apply to tribes unless Congress says otherwise.
• Hagedorn, J., dissent: urged procedural restraint: because the United States now owns the lots, it should be joined under WIS. STAT. § 803.03 and WIS. STAT. § 806.04(11), and the case should be dismissed or remanded on indispensable-party grounds rather than deciding broad immunity questions without the landowner.

As a practical matter, these dissents may serve as templates for future litigants seeking U.S. Supreme Court review on (i) whether a common-law immovable property exception constrains tribal immunity, and (ii) whether courts should avoid merits-adjacent immunity rulings when an absent sovereign titleholder is central to the requested relief.

4. Complex Concepts Simplified

Tribal sovereign immunity

A tribe generally cannot be sued without its consent. The rule is federal, not state, law (Kiowa Tribe of Okla. v. Mfg. Techs., Inc.). There are two traditional off-ramps: (1) Congress clearly authorizes suit (abrogation), or (2) the tribe clearly agrees to suit (waiver).

Abrogation vs. waiver

• Abrogation is Congress opening the courthouse door to suits against a sovereign; it requires unmistakably clear statutory language (Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin).
• Waiver is the tribe choosing to be sued, commonly via contract; it must be clear and unequivocal (C&L Enters. v. Citizen Band Potawatomi Indian Tribe of Okla.).

In personam vs. in rem

An in personam case seeks a judgment against a person or entity. An in rem case seeks a judgment about property itself. The Association argued that proceeding “against the land” should avoid immunity; Wisconsin held immunity still blocks suits whose practical effect burdens tribal interests, and declined to recognize a property-based workaround.

“Immovable property” exception (and why it didn’t carry the day)

In foreign sovereign immunity, some legal systems recognize an exception for lawsuits about real property located in the forum. The majority refused to import that doctrine into federal Indian law absent congressional direction, relying on recent state authority declining to do so (Flying T Ranch, Inc. v. Stillaguamish Tribe of Indians; Self v. Cher-Ae Heights Indian Cmty. of Trinidad Rancheria).

Real party in interest

Even if a plaintiff sues an individual, courts ask whether the requested remedy is really “against the sovereign.” If it is, immunity applies (Lewis v. Clarke). Here, enforcing covenants against trust-beneficiary land would operate against the Tribe, so immunity barred the claims even as styled against Keshena.

5. Conclusion

Legend Lake Property Owners Association, Inc. v. Guy Keshena establishes a strong Wisconsin rule: tribal sovereign immunity bars state-court suits seeking to enforce private restrictive covenants against a tribe (or its proxy defendants) absent clear congressional abrogation or clear tribal waiver. The court rejected two proposed doctrinal “workarounds”—a general in rem exception and a common-law immovable property exception—and held that unilateral covenant language cannot manufacture consent to suit. The decision substantially limits HOA-style efforts to bind tribal trust-acquisition parcels through recorded covenants and confirms that, in Wisconsin, challenges of this sort must proceed (if at all) through avenues that respect tribal immunity and the federal role in defining its limits.