July 7, 2026 – Tribal sovereign immunity defeated a claim to bind real estate covenants to the Menominee Indian Tribe and its representative, a 4-3 Wisconsin Supreme Court majority held in Legend Lake Property Owners Association, Inc. v. Keshena, 2026 WI 21.
“We conclude that nothing abrogates, waives, or otherwise precludes the Tribe’s sovereign immunity in this case,” wrote Justice Susan M. Crawford for the majority. “Accordingly, we affirm the circuit court’s judgment of dismissal.”
Chief Justice Jill J. Karofsky, Justice Rebecca Frank Dallet, and Justice Janet C. Protasiewicz joined the majority opinion.
Justice Brian K. Hagedorn’s dissent, joined by Justice Annette Kingsland Ziegler and Justice Rebecca Grassl Bradley, concluded that the case lacked an indispensable party – the current property owner, which is the United States government.
Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.
“This case raises thorny federal and tribal law issues affecting the property rights pertaining to lots in the Legend Lake Property Owners Association. … [W]e should not decide these weighty and consequential legal questions without the owner of the property having its day in court.”
The error appeared more than procedural in Justice Rebecca Grassl Bradley’s dissent, joined by Justice Annette Kingsland Ziegler.
“The majority confers the sword of sovereign immunity on tribes, replacing ‘the common-law immunity from suit traditionally enjoyed by sovereign powers’ … with absolute immunity subject only to Congress’s specific articulations of exceptions to sovereign immunity.”
Tribal Lands
Menominee Enterprises, Inc. took title to tribal property after Congress terminated the Tribe. The tribal corporation sold the land that developed into Legend Lake.
Congress restored tribal status in 1973. “The Restoration Act ‘reinstated all rights and privileges of the [T]ribe or its members’” and “provided a mechanism for the Tribe to reacquire its lost reservation lands.”
The Tribe selected Guy Keshena in 1998 “to acquire title to real property for the purpose of placing it in trust with the United States.”
The Legend Lake Property Owners Association in 1998, 2001, and 2009 added “restrictive covenants … plainly aimed at preventing the Tribe from reacquiring its former reservation lands that were now part of the Legend Lake development.”
Keshena acquired more than 30 lots in 2017. He asked the Bureau of Indian Affairs (BIA) for the United States to take title “to hold the land in trust for the Tribe.”
The Association sued in Menominee County Circuit Court to enforce the restrictive covenants that prohibited transfer benefiting a “sovereign or dependent sovereign nation,” or would remove the property from county or state authority.
The BIA “determined that the Restoration Act mandated the United States’ acquisition of the … lots.”
The Association appealed the BIA’s decision, but the Interior Board of Indian Appeals affirmed the transfer, and the U.S. District Court for the Eastern District of Wisconsin dismissed the appeal of the agency’s final decision.
The circuit court dismissed the Association’s lawsuit in 2022. The Wisconsin Court of Appeals certified the appeal to the supreme court.
Sovereign Immunity
Tribes are “distinct, independent political communities” with sovereignty existing from before creation of the United States.
To abrogate tribal sovereign immunity, “‘Congress must make its intent unmistakably clear.’” Silence isn’t enough, the majority explained. “[A]ny statutory ambiguity should be construed in favor of the tribes.”
“[G]iven the absence of ‘unmistakably clear’ language that abrogates immunity,” the majority held “that the Restoration Act did not abrogate the Tribe’s sovereign immunity.”
The Association argued the Tribe’s granting Keshena authority to accept a deed with restrictive covenants bound the Tribe.
Contractual waiver by a Tribe “must be clear and unequivocal,” the majority said. “[T]here is a strong presumption against waiver.”
The Tribe wasn’t a part of creating the restrictive covenants, neither drafting nor negotiating them, the majority explained, and the Tribe was not a purchaser.
Keshena lacked actual authority to waive immunity – the Tribe didn’t grant it. He lacked apparent authority because the Association never dealt with Keshena in the purchase, the majority decided.
The Association argued two exceptions to tribal sovereign immunity applied to a real estate dispute, an “in rem” exception and an “immovable property” exception.
Exceptions to tribal sovereign immunity require that Congress act, which it hasn’t, and the U.S. Supreme Court hasn’t applied the exceptions to a tribe, the majority concluded.
“Tribal sovereign immunity is the rule, not the exception,” the majority concluded. “A litigant can overcome tribal sovereign immunity if Congress abrogates it or if a tribe clearly waives it. Neither occurred here.”
Justice Hagedorn: Where’s the Owner?
This appeal came from a circuit court decision in 2022 – before the U.S. acquired the parcels.
“This litigation, then, was fundamentally transformed in 2023,” Justice Hagedorn said.
“Who’s missing? The United States – the party that owns the land. Thus, it is exceedingly odd – and in my view, improper – for this court to pass judgment on complicated matters of federal and tribal law when the property owner potentially affected by these determinations is not a party to the litigation.”
Wisconsin Rule of Civil Procedure Wis. Stat. section 803.03(1), (3), Justice Hagedorn explained, requires the United States as a necessary and indispensable party.
The majority cites no Wisconsin case requiring the jurisdictional issue of sovereign immunity come first, Justice Hagedorn said, and this case contains “an immunity claim that is intimately intertwined with the merits of the dispute.”
“Rather than issue a sweeping ruling,” Justice Hagedorn concluded, “the more prudent path – and the procedurally mandated course – is to send this case back to the circuit court for a consideration of whether the United States can be joined as a party.”
Justice Bradley: ‘Usurpation of Congress’s Prerogative’
“Under the law, tribes have only the ‘common-law immunity from suit traditionally enjoyed by sovereign powers,’” Justice Bradley explained in her dissent.
“Such immunity includes all exceptions under the common law,” and that includes disputes involving immovable property, Justice Bradley said.
“If the majority actually were deferring to Congress, it would recognize the immovable property exception is well-rooted in the common law and has been left undisturbed by Congress,” Justice Bradley explained. “Congressional inaction leaves the default rule intact.”
“[A]cquiring property in the territory of another sovereign ‘is a private undertaking[,]’ and a State’s sovereignty does not extend into the territory of another sovereign,” Justice Bradley said. “These principles apply to tribes with equal force.”
The exception no longer applies here, the majority acknowledged, because the land is now a part of the reservation, Justice Bradley explained. “The majority could have reached the result it wanted without rewriting the law in the process.”
This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.