UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN FELIX J. BRUETTE, JR., v. Plaintiff, Case No.: 14-C-876 SALLY JEWELL, Secretary of the Interior, Defendant. MEMORANDUM IN SUPPORT OF DEFENDANT S MOTION TO DISMISS INTRODUCTION On July 24, 2104, plaintiff Felix J. Bruette, Jr. filed a pro se complaint against Sally Jewell, Secretary of the United States Department of Interior. Doc. 1. The complaint alleges that over 100 years ago, the Department of the Interior breached its fiduciary duties by failing to establish an official roll of actual members of the Stockbridge and Munsee Tribe as required by the United States Congress on March 3, 1893. Doc. 1, p. 3. Mr. Bruette claims to be the great great Grandson and direct lineal descendent of Stephen Gardner, a signatory under Article V of the Treaty of February 5, 1856, and an actual member of the Tribe. Id. Mr. Bruette alleges that the Interior Department failed to take the roll required by the Act of Congress dated March 3, 1893, thereby invalidating an Act of Congress and impacting his rights as an owner of tribal land. Id. In his request for relief, Mr. Bruette seeks an order requiring the Department of Interior to be in compliance with the law. Comply with Congress and the Act of March 3rd, 1893. Establish the official roll with the provisions ordered. Id. at p. 4. Case 1:14-cv-00876-WCG Filed 10/20/14 Page 1 of 8 Document 10
However, a National Archive record shows that this roll was in fact established in accordance with the 1893 Act. Attached as Exhibit 1 is a certified reproduction of a National Archive record of the Census of the Stockbridge and Munsee tribe of Indians, as made by C.C. Painter, revised by Commissioner of Indian Affairs and approved by the Secretary of the Interior, under Act of Congress of March 3, 1893, 27 Stats. page 744. See Exhibit 1, p. 1 (cover page). 1 This census includes a list (page numbered from 3-47 with odd numbered pages only) of all the tribal members, including the descendants of a Stephen Gardner. Ex. 1, p. 17 (entries 184 and 185). In addition, public record documents show that the Interior Department fully complied with the 1893 Act. Accordingly, this case is moot and should be dismissed for want of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1), or in the alternative, the United States be granted summary judgment in its favor under Fed. R. Civ. P. 12(d) and 56. In addition, this case should be dismissed as barred by the applicable statute of limitations, as explained in more detail below. See Fed. R. Civ. P. 12(b)(6). FACTUAL AND HISTORICAL BACKGROUND On February 5, 1856, the Stockbridge and Munsee Indian Tribe ( Tribe ) entered into a treaty with the United States ( 1856 Treaty ). 11 Stat. 663 (available on Westlaw at 1856 WL 11369). As a part of the treaty, the United States provided the Tribe with land in the State of Wisconsin to be distributed to tribal members who were heads of households. Id. at Article 3. The United States also agreed to pay tribal members sums of money to make improvements on the land. Id. at Article 4. The 1856 Treaty further required the United States to prepare a roll of the actual members of the Tribe so that the land and money could be distributed to the proper 1 This certified copy of the Stockbridge and Munsee tribal roll is admissible as a self-authenticating public record under Fed. R. Evid. 902(4). See United States v. Torres, 733 F.2d 449, 455 n. 5 (7th Cir. 1984). 2 Case 1:14-cv-00876-WCG Filed 10/20/14 Page 2 of 8 Document 10
individuals. Id. at Article 5. This roll was attached to the 1856 Treaty. 11 Stat. 663. Four years later, in 1860, Stephen Gardner received a land patent for sixty acres of land. See Exhibit 2 (certified copy of land patent issued by President James Buchanan to Stephen Gardner). In 1893, Congress determined that many tribal members were excluded from occupying this tribal land and from receiving funds paid to Tribe members. 27 Stat. 744. Congress therefore ordered that all individuals be declared members of the Tribe who were: (1) actual members of the Tribe at the time of the execution of the treaty; (2) members of the Tribe located in other areas of the country who wanted to realign with the Tribe on the lands provided by the United States; or (3) descendants of tribal members who had not separated from the treaty. 2 Additionally, Congress ordered that all members who received allotments of land in either 1856 or 1871 and who, by themselves or by their lawful heirs, resided on the land continuously since the allotment was made, be declared owners of the land in fee simple and receive patents for the land. Id. 3 On January 31, 1895, the Senate issued a resolution directing the Interior Department to suspend activities being carried out pursuant to the 1893 Act. See Annual Report of the Commissioner of Indian Affairs (1895) at pp. 104-105 (copy attached as Exhibit 3). The Senate Resolution stated that a complaint had been made regarding the Interior Department s progress 2 Article 6 of the Treaty provides In the case the United States desire to locate on the tract of land to be selected as herein provided, the Stockbridges and Munsees emigrated to the west of the Mississippi in conformity to the treaty the Stockbridges and Munsees, parties to this treaty, agree to receive them as brethren: Provided, That none of the said Stockbridges and Munsees, whether now residing at Stockbridge, in the State of Wisconsin, in the State of New York, or west of the Mississippi, shall be entitled to any of these lands or the monies stipulated to be expended by these articles, unless they remove to the new location within two years from the ratification hereof. 3 A land patent is a supreme title to land which was originally acquired within the United States of America by a treaty. It grants the rights to the described land under the treaty to the individual person named on the patent and to their heirs and their assigns forever. BLM General Land Records Office, http://definitions.uslegal.com/l/land-patent/ (last visited October 7, 2014). 3 Case 1:14-cv-00876-WCG Filed 10/20/14 Page 3 of 8 Document 10
in complying with the 1893 Act, and further stated that:... the Secretary of the Interior is hereby instructed to report to the Senate... the names of all persons enrolled by him in pursuance of said act, and his reasons therefore, all allotments made by him and their extent, and all patents issued, if any, giving names and dates and amounts of land, and a full account of all his actions and proceedings under said act until said report is made and until further action of Congress. Id. On February 12, 1895, the Interior Department complied with the Senate resolution and suspended all activities related to the 1893 Act. See Annual Report, at pp. 104-105. However, by June of 1894 the Interior Department had completed the enrollment of tribal members required by the 1893 Act. Id. at 104 (noting that the Interior Department completed the enrollment of tribal members on June 12, 1894). This roll included a list of the tribal members, including the descendants of Stephen Gardner. Exhibit 1, p. 17 (entries 184 and 185). The Department had not, however, completed the issuance of land patents, which required the Department to determine which tribal members had lived continuously on the allotments. Id. On March 2, 1895, about a month after the Senate Resolution suspending compliance with the 1893 Act, Congress issued an Indian Appropriations Act ( 1895 Act ). 28 Stat. 876 (available on Westlaw). The 1895 Act required the Interior Department to: (1) make per capita payments to tribal members of the money they were entitled to receive under the 1893 Act; (2) complete enrollment of members into the Tribe; and (3) participate in a distribution of one-half of the trust funds kept to their credit with the United States Treasury when the allotment of lands was completed. 28 Stat. 876, 894. On March 23, 1895, the Department submitted a status report to the Senate. See Annual Report, at pp. 104-105. In that report, the Interior Department stated that it was interpreting the 1895 Act as the further action of Congress necessary to resume its 4 Case 1:14-cv-00876-WCG Filed 10/20/14 Page 4 of 8 Document 10
activities to determine which tribal members had continuously resided on their allotments and in awarding land patents. Id. at pp.105. MOTION TO DISMISS STANDARD AA motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief can be granted.@ Ferrill v. City of Milwaukee, 295 F. Supp. 2d 920, 922 (E.D. Wis. 2003)(citations omitted). See also Bell Atlantic Corp. v. Twombly, 550 U.S. 545, 557 (2007)(repudiating the general notice-pleading regime of prior cases, and holding that to survive dismissal the complaint must set forth a plausible claim for relief); Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009). The standard of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction is similar. Where, as here, the defendant asserts that the complaint is facially insufficient to establish subject matter jurisdiction, the dismissal standard mirrors the Rule 12(b)(6) standard. See Royal Towing, Inc. v. City of Harvey, 350 F.Supp.2d 750, 752 (N.D. Ill. 2004). Moreover, the party asserting the existence of subject matter jurisdiction bears the burden of proof on a Rule 12(b)(1) motion. Sprint Spectrum L.P. v. City of Carmel, Indiana, 361 F.3d 998, 1001 (7th Cir. 2004). In general, consideration of a motion to dismiss is restricted to the pleadings, which ordinarily consist of the complaint, any exhibits attached thereto, and supporting briefs. Beam v. IPCO Corp., 838 F.2d 242, 244 (7th Cir. 1988). If, on a motion to dismiss Afor failure to state a claim upon which relief can be granted,... matters outside of the pleadings are presented to and not excluded by the Court,... the motion shall be treated as one for summary judgment and disposed of as provided by Rule 56.@ Id. See also Fed. R. Civ. P. 12(d). However, in ruling on a motion to dismiss, courts A>may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the 5 Case 1:14-cv-00876-WCG Filed 10/20/14 Page 5 of 8 Document 10
issue to determine whether in fact subject matter jurisdiction exists.=@ Calderon v. United States, 123 F.3d 947, 951 n.2 (7th Cir. 1997)(quoting Capital Leasing Co. v. Federal Deposit Ins. Corp., 999 F.2d 188, 191 (7 th Cir. 1993)). In addition, a court may consider documents referred to in a plaintiff=s complaint and documents attached to a motion to dismiss if they are central to a plaintiff=s claim, even if the plaintiff did not attach them to the complaint. Venture Associate Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir.1993) (citations omitted). This exception to the general rule is meant to prevent parties from surviving a motion to dismiss by artful pleading or by failing to attach relevant documents. 188 LLC v. Trinity Industries, Inc., 300 F.3d 730, 735 (7th Cir. 2002). DISCUSSION The United States Constitution limits the Court s jurisdiction to live cases or controversies. See U. S. Constitution, art. III, 2; Murphy v. Hunt, 455 U.S. 478, 481 (1982). A case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. Powell v. McCormack, 395 U.S. 486, 496 (1969). When a case is moot, it must be dismissed as non-justiciable. Id. See also Stotts v. Community Unit School District No. 1, 230 F.3d 989, 990-91 (7th Cir. 2000). Here, the focus of Mr. Bruette s complaint appears to be that the Interior Department failed to establish an official roll of the Tribe as required by the 1893 Act. See Complaint (Doc. 1) at p. 3, 3 ( I and all the descendants of Stephen Gardner claim the Department of Interior is in breach of its fiduciary duties by failing to establish the official roll of actual members under the provisions Congress ordered ). In his request for relief, Mr. Bruette seeks an order requiring the Department of Interior to be in compliance with the law. Comply with Congress and the Act of March 3rd, 1893. Establish the official roll with the provisions ordered. Id. at p. 4. 6 Case 1:14-cv-00876-WCG Filed 10/20/14 Page 6 of 8 Document 10
But as noted above, by June of 1894 the Interior Department completed the tribal roll required by the 1893 Act, even before Congress temporarily suspended compliance with the Act on January 31, 1895. See Annual Report of the Commissioner of Indian Affairs (1895) at pp. 104-105, and Exhibit 1. Then, when that suspension was lifted on February 12, 1895, the Interior Department resumed complying with other aspects of the 1893 Act, including the issuance of land patents and per capita payments. Id., Annual Report, at pp. 104-05. In fact, Department of Interior land records show that by 1860, Stephen Gardner had already received a land patent for sixty acres of land allotted to him. See Exhibit 2 (certified copy of land patent issued by President James Buchanan to Stephen Gardner). Therefore, all of the relief sought by Mr. Bruette in his complaint has been granted, and there is no justiciable issue remaining to be decided by this Court. Accordingly, this case should be dismissed as moot. 4 Mr. Bruette s complaint is also subject to dismissal as barred by the applicable statute of limitations. Civil actions against the United States are barred unless the complaint is filed within six years after the cause of action accrues. 28 U.S.C. 2401 (a). See also John R. Sand & Gravel v. United States, 552 U.S. 130, 132-36 (2008); c.f. 5 U.S.C. 704 (six year statute of limitations under the Administrative Procedure Act for reviewing final federal agency actions). In general, a cause of action accrues when a plaintiff knew or should have known of the wrong and was able to commence an action based upon that wrong. Richards v. Mitcheff, 549 Fed. App x. 572, 573-574 (7th Cir. 2014). Here, plaintiff s claims involve Department of Interior activities that took place in the 1890 s. These activities, moreover, were the subject of Congressional Acts and public record reports issued by the Interior Department. Hence, Mr. Bruette or any of Mr. Gardner s 4 Alternatively, the United States should be granted summary judgment in its favor because it is clear that the Secretary of the Interior complied with the terms of the 1893 Act by completing the tribal roll. 7 Case 1:14-cv-00876-WCG Filed 10/20/14 Page 7 of 8 Document 10
descendants should have known about any alleged wrong many decades ago. Therefore, in addition to the mootness question, this case is properly dismissed on statute of limitations grounds as well. CONCLUSION For the reasons set forth above, defendant Sally Jewell respectfully requests that the Court dismiss the plaintiff s complaint pursuant to Fed. R. Civ. P. 12(b)(1)(lack of subject matter jurisdiction) and 12(b)(6)(failure to state a claim upon which relief can be granted), or in the alternative, grant summary judgment in her favor. Dated at Milwaukee, Wisconsin this 20th day of October, 2014. JAMES L. SANTELLE United States Attorney By: /s/ Chris R. Larsen CHRIS R. LARSEN Assistant United States Attorney Wisconsin State Bar Number: 1005336 Attorneys for Defendant Office of the United States Attorney Eastern District of Wisconsin 517 East Wisconsin Avenue, Room 530 Milwaukee, Wisconsin 53202 Telephone: (414) 297-1700 Fax: (414) 297-4394 Email: chris.larsen@usdoj.gov 8 Case 1:14-cv-00876-WCG Filed 10/20/14 Page 8 of 8 Document 10
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN FELIX J. BRUETTE, JR., v. Plaintiff, Case No.: 14-C-876 SALLY JEWELL, Secretary of the Interior, Defendant. CERTIFICATE OF SERVICE I, Chris R. Larsen, Assistant United States Attorney for the Eastern District of Wisconsin, electronically filed a Motion to Dismiss and Memorandum in Support of Defendant s Motion to Dismiss with the U.S. District Court. The person listed below will be mailed a copy of the above in a properly addressed postage-paid envelope on the 20th day of October, 2014: Felix J. Bruette, Jr. W13578 Putnam Lane Bowler, Wisconsin 54416 JAMES A. SANTELLE United States Attorney By: /s/ Chris R. Larsen CHRIS R. LARSEN Assistant United States Attorney State Bar Number: 1005336 Attorneys for the Defendant Office of the United States Attorney Eastern District of Wisconsin 517 East Wisconsin Avenue, Room 530 Milwaukee, Wisconsin 53202 Phone: (414) 297-1700 Fax: (414) 297-4394 chris.larsen@usdoj.gov Case 1:14-cv-00876-WCG Filed 10/20/14 Page 1 of 1 Document 10-4