# Petition for Writ of Certiorari — Tomow v. Menominee Enterprises, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1204%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1974 - **Citation:** 414 U.S. 1137 ## Text f : NO.@3- 760 I: In the Supreme Cowt of the United States OctosEerR TERM, 1973 HENRY L. TOMOW, SR., ET AL, Petitioners, V8. MENOMINEE ENTERPRISES, INC., ET AL, Respondents, and N. E. ISAACSON & ASSOCIATES, INC., Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF THE STATE OF WISCONSIN JOSEPH I°. PRELOZNIK MARY VAN GE\ERT 520 University Avenue Madison, Wisconsin 53703 Counsel for Petitioners UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581 TABLE OF CONTENTS PAGE EE peat SIRT ea eT eet TO 1 a csaseeaesbaaomuian 2 PUICROENG TPPDUOIIO secs is csseicssessrscacaseocsessosscvoccvesccccosecseneve 2 I I sacteesisansninapnlaaubnina 2 ID EE UND IDET - ...,,codeseunininnasasesnsrvsanusancessenons 3 Historical Background . ...............:.0.2..cceccccocecceccesceoees 3 The Process of Termination oo..c.c.c..cccccccccseseceeceeeeeee 3 Sale of Tribal Lands to Non-Menominees ............ 6 RMON WE UNNI sceesccesescsscsiscicoscreccscecevestensenevesens 8 Reasons Why the Writ Should Be Granted ................ 11 ice le SEER SLPS ee rye a 26 Appendices A. Opinion Below of Supreme Court of Wis- OER OID TI TTS oanesieicceccussnsssosecsczssicsvncoscn App. 1 Wisconsin Supreme Court Opinion on Motion for Rehearing ...0.............ccsssssceseeeseees App. 29 B. Opinion of Menominee County Circuit Court, October 26, 1972. ..............c.cccssccssseseseeseee App. 30 Opinion of Menominee County Circuit a BI BEE sccnvestiscsisasscesscinnsicesnsenscanes App. 36 C. Findings of Facts and Conclusions of Law of Menominee County Circuit Court, No- vember 16, 1972 .......... EROS IR ES ONE eT App. 57 D. Interlocutory Judgment of Menominee County Circuit Court, December 1, 1972 ......App. 72 KE. Title 25, United States Code, Sections NG EE scacicidthacceusisteasetbibetdionstaioea : App. 74 a | 7 4 ¢ 9 E | i eee Ee Storer ake Ne rt ii TABLE OF CITATIONS Cases PAGE Affiliated Ute Citizens v. United States, 406 U.S, 128 PUIPIIII “© sinicnsertcimuadersiicusnaes eectuiaapenmnabennmemasadaguanscssasiitbaseiceaes 25 Carpenter v. Shaw, 280 U.S, 368 (1980) 00000000000... 19 Cherokee Intermarriage Cases, 203 U.S. 94 (1906) ..19, 20 Choate v. Trapp, 224 U.S. 665 (1912) .0000 19 Choctaw Nation v. United States, 318 U.S. 423 (1943). 19 Marlin v. Lewallen, 276 U.S. 58 (1928) oo... 19, 20 Mattz v. Arnett, —— U.S. ——, 37 L. Ed. 2d 92 SUITE ~” ics scsansincaasticesauosarausboraianlauationceasipinsanoiuns apstosabinineia 19, 25 Menominee Tribe of Indians yv. United States, 101 Ct. a all reads 21 Menominee Tribe of Indians v. United States, 179 Ct. Cl. 496 (1967), 391 U.S. 404 (1968) 2. 3, 11, 12, 18 Poafpybitty v. Skelly Oil Co., 86 U.S, 361 (1968)... 25 Seminole Nation v. United States, 316 U.S. 286 (1987) 21 Seymour vy. Superintendent, 390 U.S, 368 (1962) .. ....... 25 Squire vy. Capoeman, 351 U.S. 9 (1956) once 19 Tulee v. State of Washington, 315 U.S. 681 (1942) ...... 19 United States v. Payne, 264 U.S. 446 (1924) 0000... 19, 20 United States v. Shoshone Tribe, 304 U.S. 111 (1938) 12, 19 Williams v. Lee, 358 U.S. 217 (1959) ..........ccsecscsseeseee 25 Winters v. United States, 207 U.S, 564 (1905) ............ 19, 20 iii Treaties PAGE Treaty of Wolf River, May 12, 1854, 10 Stat. 1064 ....3, 11, 12 Statutes Menominee Termination Act of 1954 as amended 83- 399 (68 Stat. 250) June 17, 1954, 25 U.S.C. See- SII TSE - RPE ae PRM AR AOD BY 8 History of Litigation The present action to stop sales of tribal land to non- Menominee was filed in the Cireuit Court for Menominee County, Wisconsin, October 25, 1971, by 162. enrolled Menominee Tribal Members against MEI, the officers, directors, and voting trustees of MII, and N, 16. Isaacson & Associates, Inc., MEL's partner in the LOM develop- ment. Petitioner's alleged basically that a part of the Meno- minee Termination Plan, Article XIL of the Mist Ar- ticles of Incorporation,” required that sales of tribal lands to non-Menominee be approved by two-thirds of the tribal members, and that MEL had sold such land in the past, and was continuing to sell such land through the LOM joint venture without the approval of two- thirds of the tribal members so that such transfers are invalid. Petitioners also alleged in an alternative attack on the land sales that the voting trust had been invalidly established, and, hence, the voting trustees had improp- erly exereised the voting rights of the Menominee tribal members, and had authorized the sale of tribal land: in violation of Article XIL of the MEL Charter and peti- tioners’ rights and, therefore, such sales of land were invalid. The respondents basically admitted that such sales hy MEL and Isaacson through the joint venture, LOM, were continuing; that Article NIT merely required the ap- proval of two-thirds of the voting trustees, and that al- though none of the petitioners had entered into a writ- ten voting trust agreement conferring upon the defendant ‘Article XII is reproduced at footnote 7, supra. 9 trustees the right to vote or otherwise represent shares in MEI, that the voting trust was set up pursuant to 26 U.S.C. 896 and the Menominee Termination Plan as pub- lished by the Seeretary of the Interior and approved by the tribe. The trial court noted that the case concerned a claim that Indian lands were wrongfully taken,” and after con- sidering the ‘Termination Act and Plan, and the circum- stances surrounding the adoption of the Plan by the Tribe, it held that the intent of the tribe in approving the language of Article XIL was to create a continuing restriction against the alienation of Indian lands to non- Menomineces unless two-thirds of the tribal members ap- proved such conveyances.” The trial court: also ruled that the establishment of the voting trust did not violate state law requiring written: agreement by shareholders depositing their interests in such a trust; or the terms of 25 U.S.C. $899, the provision in the Menominee Terimi- nation Act which granted tribal members personal prop- erty rights in the tribal property as of the closing of the final roll.” Upon Isaacson’s and various former MEI directors’ and voting trustees’ appeal from the trial court’s deei- sion, (MEI did not participate in the appeal), the Wis- consin Supreme Court rejected the broad standard of review which was adopted by the trial court. Basing its opinion solely upon the language of the voting trust * Appendix B, p. 49, post. ” Appendix B, p. 54, post. Appendix B, p. 46, post. PE RRL SENSORY OEM TEAL EN IEE NER TNE BIN MY OLIN SBT NRE NTS OCTANE a a a ate nan are CRETE a | x P| i ¥ é * s S 4 ¥ ‘ : Pid * % e m4 | 10 agreement which was a part of the Termination Plan, it found that such language clearly authorized the voting trustees to approve land sales to non-Menominees.'? That court also held that the language of Article NUL of the MEL Charter was inoperative while the voting trust) was in existence," The Wisconsin Supreme Court also rejected petition er'’s alternative argument that the ereation of the voting trust failed to meet the requirements of state law, and 20 U.S.C. $8898 and 896, and, therefore, petitioner's Sth and Hth amendment rights to due process and equal pro tection of the laws were violated." '2 Appendix A, p. 25, post. 'S Appendix .\. pp. 27-28, post. 4 Appendix .\. pp. 22-23, post. 11 REASONS WHY THE WRIT SHOULD BE GRANTED A. THE WISCONSIN SUPREME COURT ERRED BY FAILING TO APPLY THE RULE OF LIBERAL CONSTRUCTION WHICH MUST BE APPLIED TO THE FEDERAL GOVERNMENT'S DEALINGS WITH THE INDIANS, WHEN IT RULED THAT THE MENOMINEE TERMINATION PLAN DID NOT RESERVE TO TRIBAL MEMBERS THE RIGHT TO APPROVE SALES OF TRIBAL LANDS TO NON-INDIANS, CONTRARY TO THE EXPRESS INTENT OF THE TRIBE AND THE SECRETARY WHEN THEY APPROVED THE PLAN PURSUANT TO THE MANDATE OF 25 U.S.C. § 896. In 1968 this Court granted a Writ of Certiorari to de fermine whether certain hunting and fishing treaty rights reserved to the Menominee tribe by the 1854 Treaty of Wolf River had been abrogated by an Act of Congress, the Menominee Termination Aet, 25 U.S.C. S891 et seq. This Court) resolved a conflict between the Wiseonsin Supreme Court, whieh had ruled that certain Indian rights were extinguished, and the United States Court of Claims whieh ruled that in the absence of specific eon- gressional language, federal termination legislation did hot abrogate the Menominee treaty rights. This Court affirmed the ruling of the United States Court of Claims. Menominee Tribe y. United States, B01 US. 404 (196%). Now, five years later, petitioners, individual Menomi- nee Indians, have filed this petition to request this court to once again reverse a determination by the Wisconsin Supreme Court) that certain unique Indian rights no longer survive Termination, Five years ago the Indian MP TE KT Pe 12 treaty rights at issue dealt with hunting and fishing. Today the contested rights concern the Menominee tribal members continuing rights under the provisions of the 1854 Treaty of Wolf River and the Menominee 'Permina tion Act and Plan to control their tribal assets, in general, and the sale of their tribal lands to non Menominees, in particular. 1. By enacting the Menominee Termination Act, Con- gress guaranteed tribal members the right to con- tinue restrictions on alienation of tribal lands which the Menominee Tribe possessed by virtue of the 1854 Treaty of Wolf River. The 1854 Treaty of Wolf River gave the land whieh ts the subject of this dispute to the Menominee 'Pribe “lor a home, to be held as Indian lands are held.’ Although the United States retained the fee, and the tribe's right of occupancy was incapable of alienation or of being held otherwise than in common, that right is as sacred and as securely safeguarded as is fee simple absolute itin,”*"* The lands were held in trust for the tribe by the federal government until April 30, 1961, when the Secretary pub lished the Termination Plan and the Menominee ‘Termi nation Act thereby became effective. This Court in Menom- ince Tribe of Indians vy. U.S. 3891 U.S. 404, 412 (1968), stated: The provision in the Menominee Termination Act 25 U.S.C, $890) that ‘tall statutes of the United States whieh affect Indians because of their status > See Record, p. 280. 16 [7 S, Wi Shoshone Tribe, 304 LS DE, bird (1938) ROT OE 1 as Indians shall no longer be applicable to the mem- hers of the tribe’? plainly refers to the termination of federal supervision, The use of the word ‘statutes’ is potent evidence that no treaty was in mind, Thus, the Menominees’ treaty right to oeeupy and hold their treaty lands in-common were not abrogated by the Termination Aet, Congress did not allot the tribal lands, nor «did it order the tribe to do so. Tn enacting the Menom- ines ‘Termination Act, Congress recognized this treaty right by guaranteeing, the Menominee tribal members the right to decide the future control of their tribal prop erty: the tribe shall... formulate and submit to the Seere- lary a plan for the future control of the tribal prop erty and service Tunetions now conducted by or under supervision of the United States... . 25 ULS.C. 3896. In the Senate floor debates on Hh RR. 2828, whieh even. tually became the Menominee Termination Act, Senator Watkins, the author of the Aet, was asked what the bill provided with respeet to the protection of the tribe's property after the Tndians were put on their own, Sena tor Watkins responded: The bill provides that they ean write into their own agreement, ino whatever organization they set up, which will probably be a corporation, a restriction on alienation so that the property cannot be disposed of, or someone cannot take it away from them, The debate continued: Sen, Chavez: That is the point IT wanted to make because once in a while when we pretend to give the Indians a little freedom, all we do is open up oppor- tunity for a land grab somewhere, . . . SM PERE ESET NEN ODE EE GN TET FINA |S CTD NNT TY ERO ENO HERI eR mea “~ Rg Te a, 14 Sen. Watkins: It cannot happen to these Indians, because after all is said and done, the ultimate deci- sion will be their own.” This exchange ig typical of the entire legislative history of the Termination Act, in that Congress was of the per- suasion that the Menominee Tribe had advanced to a point where it was capable of controlling its own assets so that Federal supervision was no longer desirable. Thus, Congress mandated that the tribe itself formulate the plan for future control of the tribal assets, and, there- by, gave the tribe the right to continue restrictions on alienation of tribal lands if it so desired. 2. The trial court recognized petitioners’ unique rights to protect their tribal lands from alienation after Termination, and held that the tribal mem- bers had explicitly reserved to themselves the right to approve land sales to non-Menominees in Article XII of the MEI Articles of Incorpora- tion, and that such a reservation was approved by the Secretary of the Interior. In deciding whether to admit evidence of the intent of the Menominee tribe when it approved the Termination Plan, the trial court characterized the case as involving one of the most important problems of Indian law, the illegal taking of Indian lands,'* and concluded that: 1799 Cong. Record, p. 9746 (Aug. 24, 1953) 18“Underlying our discussions was an appreciation of the fact that American history is replete with instances where the Indians have claimed that land was wrongfully taken from them.” | Ap- pendix B, p. 49, post. | PHEW SETHI PTE ELE NP PNA HEITOR INR RENTS OE URI I FAITE ORR IRN OB Pease | 15 Ordinarily our law does not favor restrictions on alienation, and a proper construction of the trust agreement would probably place of the power of sale in the trustees. However, I consider that this is not an ordinary trust agreement but one that requires a consideration of the background and an interpre- tation of the plan against the proper setting. | Ap- pendix B, pp. 49-50, post] On the question of the intent to be found in the tribe’s approval of the plan, the trial court started with the proposition that it was ‘‘basically the plan of the Menom- inee Indians,’’ and that the Secretary approved the plan under the federal statute if it met certain condi- tions.’” After considering the minutes of the tribal meetings from the formation of the C & N Committee in 1957 through the approval of the Plan in 1959, and the lan- guage of the Articles of Incorporation and Voting Trust Agreement which were contained in the Termination Plan, the trial court concluded that by its approval of the Plan, the tribal members had reserved to themselves in the language of Article XII of the MET Charter, the right to approve sales of tribal lands to non-Menominees ; I found no discussion in any of the minutes as to whether the trustees would have the right to exercise the authority to sell contained in Article XTI during the period that the shares were in trust. I do find contained in all these writings a strong, consistent opposition to the sale of any lands, . . . [Appendix B, p. 52, post} It seems improbable to me that from all of the evi- dence that one could conelude that the Menominees ever intended that the trustees should exercise the 1% Appendix B, p. 50, post. Te atte a aa ll SE Tere 16 power of sale of lands as an ordinary business opera tion, It is in my opinion out of harmony and out of character with all of the expressed sentiments con- tained in the tribal minutes... . Lam most impressed by the deliberate selection of a very dificult and involved machinery to authorize the sale of land, Acquiring the consent of two thirds of all the shareholders is so different From the simple matter of securing the approval of the trustees whether it ix unanimous, two-thirds or a simple majority, Ut also appears to me to invelve a kind and a quality of consent by the Menominee people which cannot be sup plied by a few persons sitting: as trustees ne matter how vonscientious and concerned they are for the well being of the beneticiaries for whom they are aeting. [Ap pendix B, pp. S490, post | 3. The Wisconsin Supreme Court ignored petition- ers’ rights under the Treaty of Wolf River, and the Termination Act and Plan, and narrowly con- strued a portion of the Termination Plan to abro- gate the rights to control alienation of tribal lands which the trial court found that the petitioners had explicitly reserved to themselves in Article XII of the MEI Charter. The Wisconsin Supreme Court recognized that the con troversy as to land sales revolved around this language in Article NIL; ARTICLE XIL-SALE OF LAND Unless otherwise authorized by the afirmative vote of the holders of not less than two-thirds of the oulstand- ing shares of stock entitled to vote thereon, the cor. poration shall have ne authority to sell, exchange, as- sign, convey or otherwise transfer all or any portion of the real property owned by the corporation: . 6 « (Emphasis supplied) a wa) premnry 17 and that “Art. XP whieh along with the voting trust formed the very heart of the Termination Aet itself. ..??” Hlowever, without citing any support for its position, that Court held the language of Article NPL inoperative during the life of the voting trust, *! thus wiping out in one sen- fenee the rights whieh Petitioners had thought they had assured themselves when they approved the language of Article XTL The Wisconsin Supreme Court then redefined the land sales issue as: “whether the voting trust agree. ment clearly grants authority to the trustees to sell land to non Menominees? Relying exelusively on the lan- rhage of the voting trast agreement whieh did not mention land sales inany context, it held that the general language therein giving: the trustees the power to vote the stock they held for every purpose, was a elear and specific grant of authority to the trustees to sell land to non Menominees, ™ The Wisconsin Supreme Court, thus, considered only a stall part oof the Menominee Termination Plan, whieh did net address the issue of land sales, and held the portion which did inoperative, without eitingg any support, in eon. chiding that a seven member voting trust had the power to sell any amount of tribal lands to non. Menominees, Al- though the Wiseonsin Supreme Court had before it) the trial court's and petitioner's characterization of the case asa unique one involving Indian lands, and henee, in view hed Appendix A, }. 23, post, 2) Appendix A, p. 27, post, * Appendix A, p. 25, post. * Appendin A, pp. 25-26, post. eh ae ee ee Re ee ee ee et ae ae 18 of the language of Article XII, it was necessary to look to all the pertinent documents and circumstances surrounding the tribe’s approval of the Plan in order to ascertain the intent of the tribe on this question, that Court refused to consider the intent of the tribe when it approved the lan- guage of Article XII concerning sale of tribal lands. 4. The Wisconsin Supreme Court’s method of re- view flies in the face of this Court’s consistent standards of reviewing dealings of the govern- ment with the Indians. The Court of Claims in Menominee Tribe of Indians v. U.S..*4 in holding that Menominee hunting and _ fishing treaty rights survived Termination, noted that the Wiseon- ir stati pe Rea Sh Lia RS ai OL siete one : sin Supreme Court had based its previous decision in that 4 ease “solely on its interpretation of the words and language 4 of the Act itself,’? and that had the Wisconsin Supreme 3 Court: : had the benefit of all the facts and circumstances sur- 4 rounding the contemporaneous consideration of Public Law 280,... ineluding the plan of the tribe ineorporat- ing a portion of Publie Law 280 therein, and its ap- proval by the Secretary of the Interior, in effect mak- ing such provisions of Public Law 280 a part of the Termination Act, the decision of that court might well have been different. ; In the instant ease, the Wisconsin Supreme Court did have, : by virtue of the trial court's opinion and petitioners’ argu- ments. the benefit of all the facets and circumstances sur- rounding the adoption of a Termination Plan which led 24179 Ct. Cl. 49%, 510 (1967). 394 U.S. 404 (1968). vo *, 2 (hase OTN SEDI EDEL LULL INDIO AEE LESTE LP NEL LIESEDVEMNS, IEA LLE LESLIE FERGIE BE NSLS IPE 19 the trial court to hold that the tribal members had unques- tionably reserved the right to themselves to approve sales of tribal land to non-Menominee. Yet it still chose to rely exclusively on one small portion of the Plan in reaching its decision. The fact that 25 U.S.C. $896 required the Seeretary to approve the Plan and that such approval was necessary in order to effectuate the Act, makes the provisions of the plan a part of the Termination Act. *° In examining the Government’s dealings with the In- dians, this Court has consistently and without exception applied a liberal rule of construction under which doubtful expressions are to be resolved in favor of the Indians. See Choate v. Trapp, 224 U.S. 665, 675; U.S. v. Shoshone Tribe, 304 U.S. 111, 117; Choctaw Nation y, U.S., 318 U.S. 423, 452; and Winters v. U.S., 207 U.S. 564, 576. Such dealings have also been continuously construed by this Court in light of the historical circumstances under which they were exe- cuted and approved, with paramount emphasis being placed upon what was intended, understood and consented to by the Indians, See Mattz v. Arnett, ........ ie Sie , 37 L. Kd. 2d 92, 101; Squire v. Capoeman, 351 U.S. 1, 9; Tulee v. State of Washington, 315 U.S. 681, 684; Carpenter v. Shaw, 280 U.S. 363, 367; Marlin vy. Lewallen, 276 U.S. 58, 64-65; U.S. v. Payne, 264 U.S. 446, 448-9; Winters v. U.S., 207 U.S. 064, 576-577; and Cherokee Intermarriage Cases, 203 U.S. 76, 94-95. Reference to tribal meeting minutes to ascertain tribal intent has also occurred. See Tulee v. State of Wash- ington, supra, Further, this Court has often rejected arguments in such cases which were based on literal or technical interpreta- “9 See quotation from Court of Claims, supra. 20 tions of pertinent documents, see Marlin vy, Lewallen, supra, p. 65; U.S. v. Payne, supra, p. 449; Winters v. U.S. supra, p. 577, and Cherokee Intermarriage Cases, supra, p. 95. The language in Winters v. U.S., supra, is particularly appropriate here. In deciding whether the Indians there had given up certain water rights, this Court stated that the liberal rule of construction ; Should certainly be applied to determine between two inferences, one of which would support the purpose of the agreement and the other impair or defeat it. On account of their relations to the Government, it ean- not be supposed that the Indians were alert to exclude by formal words every inference which might militate against or defeat the declared purpose of themselves and the Government, even if it could be supposed that they had the intelligence to foresee the ‘*double sense’’ which might sometimes be urged against them. [267 U.S. 564, 577]. In the present setting, these canons of construction re- quire a determination that the tribal members expressly re- served to themselves in the language of Article XII of MEL's Charter the right to approve land sales to non-Me- nominees, The Wisconsin Supreme Court’s refusal to look at the intent of the tribe at the time it approved the Plan has resulted in a decision based upon a technical, legalistic construction of but a small portion of the Termination Plan whieh did not mention land sales, to the exclusion of a por- tion of the Plan specifically relating to such sales. For the above reasons, the Wisconsin Supreme Court's decision in regard to sales of tribal lands is totally unaeceptable and must be reversed else the petitioners continuing treaty rights and the Congressional intent behind 25 U.S.C. $896 are unlawfully denied. PLONE LIT LEE IEL ILENE LAI CLL LE MS BI APES gh PERLE EAD By UF EE ABE HDT EIT INIA ner r] Pai. 21 5. The Secretary of the Interior’s approval and pro- mulgation of the Menominee Termination Plan should be construed to have incorporated tribal and congressional intent respecting the restric- tions on the alienation of tribal lands. When the Seeretary of the Interior published the ap- proved Menominee Termination Plan, he was subject to unique limitations upon his administrative diseretion exist- ing in the field of Indian affairs: .+. the principles applicable to an “ordinary fiduciary”? add little to the settled doctrine that the United States, as regards its dealings with the property of the In- dians, is a trustee, In Seminole Nation vy. U.S., 316 U.S. 286, Mr. Justice Murphy, speaking for the Su- preme Court said * * * this Court has recognized the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people, Menominee Tribe of In dians, 101 Ct. Cl. 10, 19 (1944). Moreover, the Secretary was under a special statutory mandate, 25 U.S.C. $896, to assist the tribe in formulating a termination plan which conformed to applicable federal law. But the Wisconsin Supreme Court, by refusing to view the Termination Plan as a cohesive document and in light of the circumstances surrounding its approval by the tribe and the Secretary, has not only ignored Menominee treaty and statutory rights, and the expressed understand- ing of the Menominee people; but has also imposed a state law construction on the Menominee Termination Plan which raises serious questions as to the legality of the Secretary’s role in approving the Plan. LORE R IL EMIS POHL OTIS ee BWI S SEVEN EE A EME CUES S SB AH MS eS RS RS Cy eee | 22 B. THE WISCONSIN SUPREME COURT’S HOLDINGS ON THE TRANSFER OF TRIBAL MEMBERS BEN- EFICIAL OWNERSHIP INTERESTS TO THE VOT- ING TRUSTEES AS PROVIDED FOR IN § 893, CONSTITUTES A DENIAL OF THE RIGHTS WHICH WERE GUARANTEED TO PETITIONERS BY THAT SECTION OF THE TERMINATION ACT. Section 893, 25 U.S.C., of the Menominee Termination Act stated that upon the Secretary’s Proclamation of Final Closure of the roll of the tribe, ‘the rights or beneficial interests of each person whose name appears on the roll shall constitute personal property and shall be evidenced by a certificate of bene- ficial interest which shall be issued by the tribe .. . Such interests shall be alienable only in accordance with such regulations as may be adopted by the tribe.”’ [Appendix EK, post] The Secretary’s proclamation was published December 12, 1957 at pp. 9951-9972 of the Federal Register. The language of Section 893 on its face constitutes a unique ar- rangement concerning the beneficial ownership rights of individual tribal members in the tribal assets. The in- common ownership rights which each tribal member held before the Secretary’s Proclamation, became divisible per- sonal property rights upon that Proclamation in 1957, and yet the tribe still retained the right to issue the Certificate of Beneficial Interest which manifested those rights, and also to adopt regulations controlling the alienation of the rights. Thus, both the individual tribal members and the tribe derived certain rights to the beneficial ownership in- terests in the tribal assets under $893. 23 It is petitioners’ position that the Wisconsin Supreme Court’s holding that the tribe’s approval of the concept of a voting trust was adequate to convey all the shares that the tribal members were entitled to receive by virtue of the language of $893, 25 U.S.C., is a clear violation of the personal property rights bestowed upon the petitioners by the language of 25 U.S.C. $893. Further, the Wisconsin Supreme Court’s holding that the issuance of the Certificate of Beneficial Interest by the chairman of the advisory coun- cil and its transfer to the C & N Committee was valid in that the tribe adopted the Plan calling for the transfer of tribal assets to the tribal corporation and voting trust, ignores the fact that the Certificate of Beneficial Interest which manifested these interests, was not included in the Plan which was approved by the Tribe. ** Therefore, any language contained in the Certificate purporting to give authority to the chairman of the advisory council or the C & N Committee to issue and alienate the rights evidenced in the Certificate is invalid, The Wisconsin Supreme Court’s reliance on the fact that the chairman of the ad- visory council, who issued the Certificate, was the highest elected official of the tribe is contrary to its own recogni- tion that the advisory council could only handle day-to-day matters." The issuance of the Certificate evidencing all the beneficial ownership interests in tribal assets is hardly a routine matter. Finally, the C & N Committee was only given the authority by the general council to formulate a “6 See Record, pages 633-4. *7 Appendix, A, p. 2, post at ee ee ee Pa ge ee ee ee ee - - ee KERwep, z TR Rt ln It rhe j 24 Termination Plan, ** not to alienate the beneficial ownership interests of the tribal members to a voting trust. What is at stake in this issue is control of the tribal assets after termination. The Wisconsin Supreme Court refused to consider the minutes of the general council meet- ings during which the Plan and the role of the voting trust- ees were discussed. That Court’s reliance on the Secre- tary’s approval of a ‘‘reasonable’’? Plan to establish the Plan’s validity, cannot justify its refusal to examine tribal intent at the time the tribe approved the Plan, nor its bla- tant disregard of the discrepancy between the facts as stated in its opinion and the fact that the procedure which was followed in alienating the beneficial interests to the voting trust did not meet the clear language of 25 U.S.C. $893. And, again, in view of the Wisconsin Supreme Court’s decision, serious questions are raised as to the exercise by the Secretary of his general trusteeship duties to the tribe and the special duty he had under 25 U.S.C. $896 to ap- prove a Plan only if it conformed to federal law. C. EFFECT OF THE WISCONSIN SUPREME COURT’S DECISION ON THE MENOMINEE AND OTHER TRIBES. It the narrow, technical standard of review which was utilized by the Wisconsin Supreme Court in the instant case is allowed to stand unchanged, other state courts might be encouraged to abrogate or deny Indian rights secured by federal legislative or administrative actions when ques- tions as to their construction are raised in state courts. ‘This ease concerns two of the most basic issues which econ- cern Indian tribes; sale of tribal lands and control of tribal 28 Appendix A, p. 3, post. OREN PE NR TS ONSET PPLE REM TRIAD Oe Sate MS a Tatra 25 assets. In the instant case, the sale of over 2,000 lots to non- Menominee purchasers has already resulted in the destruc- tion of valuable hunting and fishing grounds by flooding and subdivision, (see the petition in the companion case, Daly v. DNR), and a present and potential influx of thou- sands of permanent non-Indian residents who represent an extremely serious threat to the survival of Menominee cul- ture and continued local political control by the approxi- mately 2,500 Menominee residents of Menominee County, Wisconsin. There is no question but that irreparable harm has heen caused by the sale of Menominee lands since 1961, but past sales are no excuse to allow more unlawful sales to be made, This Court has often granted certiorari in cases where state courts had interpreted and applied federal law involv- ing Indian tribes in conflict with applicable decisions of this Court. See Mattz v. Arnett, ........ i Gansenes , 37 L. Ed. 2d 92, 95; Poafpybitly vy. Skelly Oil Co., 390 U.S. 368, 368; Sey- mour v. Superintendent, 368 U.S. 351, 353-4; and Williams v. Lee, 358 U.S. 217, 218. And in Affiliated Ute Citizens v. U.S., this Court granted certiorari ‘‘because of the im- portance of the issues for Indians whose federal super- vision is in the course of termination.’’ 406 U.S. 128, 141. In the recent Mattz and Affiliated Ute Citizens cases, supra, this Court recognized that the congressional philosophy and purpose, as well as the historical background of legisla- tion affecting the Indians in those cases was to be con- sidered in resolving the issues raised there. See Mattz at 37 L. Ed. 2d 92, 101 and AUC at 406 U.S. 128, 151. Peti- tioners here submit that the Wisconsin Supreme Court’s failure to so consider the important claims which this case presents, has irreparably damaged the Menominee tribal assets and culture and, therefore, cannot be allowed to stand. “ \e & a F may r= PVN W ADL Coie 26 CONCLUSION Petitioners respectfully request the Court to grant cer- tiorari in that this case presents important federal issues relating to all Indian tribes and the Menominee tribe in particular, which have never been decided by this Court. Petitioners also believe that the Wisconsin Supreme Court has clearly decided the issues in a way which violates the yj Menominee Indian Tribe’s rights under federal treaty and statutes, and contrary to the manner in which the issues similar to those raised here are decided by federal courts and this Court, . - Respectfully submitted, Joseru F. PreLtoznik Mary Van GEMERT Counsel for Petitioners SNe eat LIER AE IE AY SIS ws Barret ers HEMEL ELIV PIE LAOS MD NILA RG NERA AR ART I CRS 0 hy POR IRD ee “eh or Sh PES URE APPENDIX A SUPREME COURT OF WISCONSIN Tomow and others, Plaintiffs and Respondents vy. N. EB. Isaacson & Associates, Inc, Defendant and Appel- lant: Menominer Enrenrnises, Inc., and others, De- fondants and Respondents, No. 508, Argued June 4, 1973.-—Decided June 29, 1973. Avrean from parts of a judgment of the circuit court for Menominee county; Winuiam J. Derry, Cireuit Judge of the Fourteenth Circuit, Presiding. Affirmed in part; re- versed in part, Action hy Henry L. Tomow, Sr., and 161 other mem- hers of the Menominee Indian Tribe who are or were at all times material, registered shareholders and/or hold- ers of voting trust certificates of Menominee Knterprises, Inc. (hereinafter ‘plaintiffs’’), on behalf of themselves and all other shareholders simialrly situated; against Menominee Enterprises, Inc. (hereinafter ““MEI’’); the officers and directors of ‘*MEI’’; the trustees of the Me- nominee common stock and voting trust (hereinafter “yot- ing trust’’); and N, K. Isaacson & Associates, Inc, (here- inafter ‘Tsaaeson’’) who, together with “MEI,” entered into a partnership known as ‘Lake of the Menominees,’? (hereinafter “*LOM?’’) challenging the validity of the ‘vot- ing trust,’’ the power of the trustees of the ‘‘voting trust’? to authorize the sale of land to non-Menominees and the validity of certain land transfers made to ‘‘LOM.” lee. eer ae SRO Le &, reen @¢. ee App. 2 The facts upon which the present action is based are, for the most part, without dispute and the result of a stipulation between the parties, The Menominee Indian Tribe was well established in Wisconsin two hundred years before the Kuropean settlers began their westward movement across the United States, Except for a small cession of land for the Stockbridge- Munsee Reservation, the last of a series of treatios between the United States government and the Menominee Tribe was the ‘Treaty of Wolf River’? of 1854, Pursuant to the treaty, the Menominees ceded land to the United States and the United States agreed to give to the Indians land of which the present Menominee county was the largest part. Traditionally, all tribal affairs were handled by the tribe in general councils and by the advisory council, The general councils were meetings open to the entire tribe at which all adult enrolled Menominees could yote, The ad- visory council, created in 1928, was an eleeted body that eonecerned itself primarily with business management. of day-to-day affairs, Its action could be overturned by a yote of a general council or by the secretary of the interior. In 1953, Congress, by concurrent resolution, instructed the seeretary of the interior to recommend legislation for the withdrawal of federal supervision over the Me- nominees as well as several other named tribes and in 1954, Congress passed the ‘Termination Act.’?' After publi- vation of the seeretary of interior’s proclamation in the Federal Register, ? termination became effective midnight, 168 U.S, Stat. at L., p. 250, as amended, 70 U.S. Stat. at L., p. 549, 72 U.S. Stat. at L., p. 290, 74 U.S. Stat. at L., p. 867; 25 USC, sees. 891-902, 226 Fed. Reg., No. 82, April 29, 1961, at page 3726. App. 3 April 30, 1961, The proclamation provided for the transfer of the tribe’s property which was held in trust by the federal government and the end of any supervision and control by it over the Menominees and the Menominee Reservation, In November, 1957, a general council of the tribe ereated the **Menominee Co-ordinating and Negotiating Commit- tee’? (hereinafter “C. N. Committee’), The funetion of the four-member committee was to develop a termination plan such as was ealled for by the ‘Termination Aet’’ itself." Authority for the preparation of the termination plan came from the general council which created it under the advisory council, In December of 1957, the final rolls of membership in the Menominee Tribe were closed and the membership list of 3270 persons was published in the Federal Register. A ‘Termination Plan’? was proposed to a general council ina series of three meetings in January of 1959 and as amended by those present, it was approved by a 91 to 16 vote on January 17, 1959. It was also approved by the secretary of the interior. Part of the plan called for the creation of the ‘*Menomi- nee common stock and voting trust.’’ Individual members of the Menominee Tribe did not enter into written agree- ments creating the voting trust and consequently, whatever legal assent which exists on the part of the Menominees to the establishment of the voting trust emanates from the votes of the general council. At all times material to this action, there were seven trustees of the voting trust: four enrolled members of the Menominee Tribe elected by the general council and three nontribal members elected joint- %25 USC, 896. Rl ie ee ee eS ee a ee ood ees wn ev ane eee eer nt NPE PETE BURT Orta ts oldie Regi RR as DN a SS = sw Ma NEE CARA PBs eh toe App. 4 ly by the advisory council and C. N. Committee, subject to confirmation by the general council. The affirmative vote of five trustees is needed to take any action. Under the pro- visions of the ‘‘Termination Plan’’ the selection of the trustees occurred in advance of the termination date and before any trust in fact existed. While the voting trust is in existence, it may be terminated by the tribal members who become holders of the voting trust certificates in ten, twenty or thirty years. Under the original plan, the certifi- cates could not be sold or negotiated before January 1, 1971, with ‘‘MEI”’ having the option to purchase the certifi- cates at the proposed sales price, and, in the absence of the exercise of the option, the state of Wisconsin has the same right. In May of 1969, the certificate holders were given the opportunity to extend the January, 1971, deadline until January 1, 1974, and approximately 51.2 percent of the certificate holders voted for the extension. C‘ontemporaneously, with the selection of the initial trustees, the plan also called for the creation of a corpora- tion under Wisconsin law to be known as Menominee En- terprises, Inc. (“‘MEI’’) The members of the C. N. Com- mitte, as individuals, signed as incorporators of ‘‘MEI.’’ Under the provisions of the plan, the voting trustees, prior to the organization meeting of the corporation, will in- formally name the individual directors of ‘*MEI’’ and those persons will be named in the articles of ineorpora- tien and will formally be elected by the subscribers of all of the stoek—the C. N. Committee—at the organization meet- ing. The principal purpose of ‘‘MEI”’ is to manage and op- erate all of the business and property, real and personal, transferred to the corporation by the United States of America, pursuant to 25 USC, 897. Although ‘‘MEI’’ owns App. 5 and operates a sawmill and smaller, related businesses, its principal asset is land, By two deeds, both dated April 26, ‘ 1961, and recorded in the office of the register of deeds of j Menominee county, Wisconsin, the United States conveyed ‘ to ‘*MEI”’ all of the land which, for practical purposes, : previously constituted the Menominee Indian Reservation : and which presently constitutes Menominee county, Wiscon- sin. About one quarter of a million acres comprise Menomi- nee county. Under the articles of incorporation, ‘‘MEI’’ was grant- ed the authority to issue shares of stock and the ‘‘MEI’’ directors accepted the subscription of the committee. The Secretary of the Interior then advanced $327,000 of the funds he was holding in trust and this money was used to pay for the stock, ‘‘MEI”’ issued a single stock certificate to the committee for 327,000 shares of stock. The (. N. Comittee signed the voting trust agreement and named as trustees those individuals previously approved by a general council and transferred the stock ‘““MEI”’ held in its name to the voting trust. The trustees then issued voting trust certificates to the enrolled Menominess as evidence of their interests in the stock the trustees held, with each certificate representing 100 shares of stock in ‘“MEI.’’ In the case of minors and incompetents, the certificates were turned over to the ‘Menominee assistance trust,’’ a second trust provided by the plan with the First Wisconsin Trust Company acting as trustee.4 It was stipulated that each * The plan also provided that upon termination, $1,500 was to be distributed to each enrolled Menominee. After the other assets were transferred to “MEI”, it issued a $3,000 income bond to each individual Menominee. The bond is payable en December 1, 2000. and pays 4 percent interest or $120 per year. App. 6 step required to be taken under the ‘‘Termination Plan’’ for the organization and activation of ‘‘MEI’’ and the vot- ing trust were in fact taken. On August 10, 1967, the board of directors of ‘‘MEI’’ and the trustees of the voting trust jointly passed a resolu- tion. Eight of nine directors and all of the then seven trus- tees unanimously adopted the following resolution: ‘““‘WHEREAS, there is no other means sufficiently capable of accomplishing the economic improvement of the Me- nominee community except by adoption and implementa- tion of the ERNST & ERNST REPORT; and ‘‘WHEREAS, to provide necessary tax resources for Menominee County and/or the Town of Menominee and for the relief of taxation on Menominee Enterprises, Ine. (and the residents of Menominee County, Wisconsin), and to assure continued Menominee ownership thereof : “T, BE IT RESOLVED, that Menominee Enterprises, Ine. is authorized to proceed with the recommendations of the Ernst & Ernst Report as opportunity and feasibili- ty permit; and “TI, RESOLVED FURTHER, that the Corporation is authorized to define economic development zones on its land in Menominee County, Wisconsin, not to exceed 8,750 acres in areas to be defined and described from time to time by the Menominee Common Stock & Voting Trust, and/or the shareholders of the Corporation, whichever then holds the common stock; and “TI. RESOLVED FURTHER, that pursuant to Ar- ticle XII of the Articles of Incorporation of Menominee Luterprises, Inc, within such economic development zones warranty deeds may issue as a form of land transfer, pro- App. 7 vided a sufficient form of quality control is a condition of such transfer, and provided always that sufficient areas of land on lakeshore be reserved for Menominee use.’’ (Emphasis added.) The ‘‘Ernst & Ernst Report’’® referred to in the reso- lution was a technical assistance study of Menominee county by the Economic Development Administration which recommended that in order for the county to achieve eco- nomic self-sufficiency, the county’s recreational resources be developed by the creation of several large lakes from smaller ones and the development of the cottage sites around them. The ‘Termination Plan’’ itself had stated only that the area had excellent commercial recreational possibilities, the development of which was being con- sidered. Art. XII of the articles of incorporation of ‘‘MEI”’ referred to in the resolution contains the following pro- vision governing the sale of land by the corporation: “Unless otherwise authorized by the affirmative vote of the holders of not less than two-thirds of the out- standing shares of stock entitled to vote thereon, the corporation shall have no authority to sell, exchange, assign, convey or otherwise transfer all or any portion of the real property owned by the corporation; .. . provided, further, that the board of directors, or the appropriate officers at the direction of the board of directors, shall have authority to sell or to convey to individuals, who were enrolled tribal members under section 893, Title 25, U.S.C. (final roll) or their heirs- at-law, individual parcels which in the aggregate will not exceed 14,500 acres for home sites, agricultural use, or other development, ...’? (Emphasis added.) *Ernst & Ernst, Technical Assistance Study of the Potential for Tourism and Industrial Development in Menominee County, Wis- consin, C-164-66 (NEG) Economic Development Administration, U.S. Department of Commerce, March, 1967. Re et Aa AO ee ee ep thes eda Dasa tht TAR BED EES : Pt AIDEN TP THE AL ee App. 8 On September 13, 1967, a referendum was held in which all Menominees who held certificates (except minors and incompetents whose interests were voted by their special trustee, First Wisconsin Trust Company) were invited to express their opinion on the resolution of August 10, 1967. Of a total of 109,125 votes cast, 97,738 were for and 11,387 were against the resolution. Among the ‘‘yes’’ votes were 79,362 votes cast by First Wisconsin Trust Company. The referendum was announced as ‘‘advisory’’ and the written material distributed referred to the use of warranty deeds. On July 9, 1968, ‘‘MEI’’ and N. E. Isaacson entered into an agreement whereby they established a joint ven- ture to be known as ‘‘Lake of the Menominees’’ (‘*LOM’’) which was, however, to be governed by the Wisconsin Uniform Partnership Act. By the terms of the agreement of July 9, 1968, the partnership was entered into for the purpose of holding, developing and selling to persons in- cluding non-Menominees certain lands consisting of 5,170 acres located within the economic development zone _ re- ferred to in the joint resolution of August 10, 1967. The agreement of July 9, 1968, was contingent upon approval by the trustees which was given unanimously by them in July of 1968. ‘‘LOM’’ undertook a substan- tial and extensive land and lake development project known as ‘Legend Lake’’ and among other things, approximately 2,000 recreational homesites out of 2,600 such sites have heen sold and water-level control dams and roads have been constructed. Subsequently, between the dates of September 12, 1968, and April 5, 1971, the approximately 5,170 acres referred to in the partnership agreement of July 9, 1968, were conveyed by ““MEI"’ to ‘*LOM?’’ partnership by ineans of seven warranty deeds, all of which were executed 85 1g POTEET DLE LG IE LIL ND EME ERG App. 9 and recorded in the office of the register of deeds of Menom- inee county, Wisconsin prior to the commencement of the present action. Of the 5,170 acres conveyed, 1,333 acres valued at $150 per acre, represented ‘‘MEI’s’? initial con- tribution to the “LOM”? joint venture. By the agreement, ‘‘MEI”’ gave to ‘‘LOM”’ the option to purchase an addi- tional 3,837 acres also at $150 per acre. On September 30, 1968, ‘‘MEI’’ and Isaacson by writ- ten agreement decided that Isaacson was to be the ‘‘manag- ing partner’’ of ‘‘LOM”’ and to facilitate the management, development and sales of land that N. E. Isaacson, as president of Isaacson, and Ralph Voss, as vice president and assistant secretary, would have power of attorney to execute all deeds of conveyance from ‘‘LOM”? to any pur- chaser in the ordinary course of business. The agreement of July 9th was performed to a substan- tial degree and in 1969, Isaacson and ‘‘MEI”’ agreed to increase the number of lots to be developed and sold from 1,800 to 2,600, all of them to be laid out on the land con- veyed by the seven warranty deeds. On or about March 11, 1969, ‘LOM’? applied for a permit to construct a third dam in the Legend Lake Project. On October 15, 1971, Isaacson asked ‘‘MEI”? if it would agree to try to sell out the project in 1972 and to incur additional selling costs be- yond the agreement ceiling of 30 percent. A motion (of the ‘*MEI’’? Board) was passed to refer the matter to LOM’? Management Committee to act within its discre- tion. The present action was filed in the circuit court for Me- nominee county, Wisconsin on October 25, 1971, and a lis pendens containing the names of the parties, the object of the action, and a description of the land involved in the Re ae | App. 10 action was filed with the office of the register of deeds in Menominee county on the same day. The first count of plaintiffs’ complaint alleges that neither they nor any other ‘‘MEI’’ shareholder ever entered into a written vot- ing trust agreement creating a voting trust for the purpose of conferring upon defendant trustees or any other trustees the right to vote or otherwise represent their shares in ‘‘MEI.’”’ It goes on to allege that the defendant trustees of the voting trust are and have been unlawfully exercising the voting rights of plaintiffs and other shareholders in that they have elected the defendant directors of ‘‘MEI’’ and excepting trustees Ignace and Deer, they have par- ticipated in, approved and/or ratified a decision of the defendant directors to sell ‘‘MEI’’ land to nonenrolled Menominee tribal members in violation of the articles of incorporation and in usurpation of plaintiff’s rights. Like- wise, they contend that pursuant to the trustees’ approval, the officers and directors of ‘‘MEI’’ entered into an agree- ment with defendant Isaacson purporting to bind ‘‘MEI’’ to a joint venture involving the sale of land to non-Indians. Plaintiffs’ complaint as a second count, alleges that with the exception of certain limited sales of real property to enrolled tribal members, ‘‘MEI’s’’ articles of incor- poration specifically bars the sale of corporation real prop- erty unless it is authorized by the affirmative vote of the holders of not less than two thirds of the outstanding shares of stock entitled to vote thereon, and in spite of the fact that no sale of ‘‘MEI”’ real property has ever been au- thorized by the holders of not less than two thirds of the outstanding shares of stock entitled to vote thereon, the officers and directors of ‘‘MEI’’ have purported to sell corporate real property through the ‘‘LOM”’ joint venture. App. 11 Pursuant to their first count, relating to the validity of the ‘‘Voting Trust,’’ plaintiffs demanded judgment declaring the ‘‘voting trust’? null and void; an order permanently enjoining the ‘‘MEI’’ directors from at- tempting to exercise in any way the rights of the plain- tiffs, a determination that the joint venture agreement of July 9, 1968, between Isaacson and ‘‘MEI”’’, except as to the rights of prior good faith purchasers, is null and void; that the declaration in the July 9th agreement given to N. KE. Isaacson and Ralph Voss power of attorney to execute all deeds of conveyance from ‘‘LOM’’ to any purchaser is null and void; an order calling for the election of a new board of directors; and an order requiring de- fendants ‘‘MEI’’ and Isaacson to recovery to ‘‘MEI”’ all properties formally transferred to ‘LOM’? which had not heen conveyed to a good faith purchaser at the time the defendants learned of the lawsuit, or at the time of filing the action, whichever is earlier. As judgment on the second count of their complaint, plaintiffs demanded that a special shareholders meeting be called for the purpose of electing new directors of ‘*MEI’’; that the “LOM” agreement be declared null and void; that the officers and directors of ‘‘MEI’’ be en- joined and restrained from honoring its contract with Isaacson in any way whatsoever; an order requiring the officers and directors of ‘‘MEI’’ to make an accounting and to pay into court all money and assets accounted for; and other relief concerning the liability of the officers and directors to ‘MEI’? for all losses and damages occasioned by their acts, On April 21, 1972, the plaintiffs, by stipulation and with court approval, filed a supplemental complaint which added certain defendants because of their election as trus- we INP a TAP QO tee ey VOR RIE fier wt PEO tn nd i tam App. 12 tees of the ‘‘voting trust’’ or directors of ‘‘MEI.’’ The supplemental complaint also alleged that the joint venture agreement dissolved December 31, 1971, unless extended; that Isaacson and ‘‘MEI’’ did not extend it; that another agreement for the sale of land to non-Menominees would require authorization by the holders of at least two thirds of the outstanding shares entitled to vote or that is to say, enrolled Menominees, They also allege that since termination of the agree- ment, neither two thirds of the enrolled Menominees nor two thirds of the trustees have authorized new sales to non-menominees and that at the present time, ‘‘LOM’’ could not obtain a two-thirds vote of authorization from the trustees, as evidenced by the affidavits by six of the eleven trustees, stating that they were opposed to land sales to non-Menominees and would vote against such sales were a vote taken; and that in spite of this, ‘*MET’’ and Isaacson are and threaten to continue to sell land to non- Menominees. The action came to trial before the court, without a jury, on May 8, 1972. In its written decision of July 24, 1972, the trial court found that although the ‘‘voting trust’’ was not invalid, art. XII of the articles of incor- poration of ‘‘MEI’’ relating to the sale of land by the corporation was ambiguous and consequently heard ex- trinsic evidence concerning the basic intent of the parties in the adoption of art. XII. After a review of the evi- dence upin which it relied, the court concluded that the reference to ‘‘two thirds of the outstanding shares of stock entitled to vote thereon ...’’ referred to two thirds of the enrolled Menominees and not to a_ two- thirds vote of the trustees. The court then granted an injunction against any further sales of land with the App. 13 understanding that jurisdiction would be retained to con- sider evidence in support of other remedies at a later date. Subsequent to the July 24th decision, the defendants, by orders to show cause, brought motions seeking to clarify and limit the earlier injunction. The parties agreed at the time of the hearing on these motions that there were 121 sales of lots, estimated at approximately $900,000 in which offers of purchase had been accepted, but the delivery of deeds and formal closing had not yet oceurred. In six of these sales, the offer and acceptance had occurred prior to October 24, 1971, the date of filing of the lis pendens. Isaacson contended that the conveyance of the seven warranty deeds were executed conveyances, and even though made in an irregular manner under the court’s earlier ruling, they should not be impeached or disturbed because of any irregularity in the exercise of the unques- tioned corporate power. Although it recognized the rule of law relied on, the circuit court, nevertheless, conclud- ed that the transfer of 5,170 acres of land by seven deeds by “*MEI”’ to **LOM,”’ all occurring prior to the filing of the lis pendens, were not entitled to the status of completed or executed transactions. From those parts of the court’s interlocutory judgment that held ‘‘Article XII of MEI’s’’ articles of incorpora- tion ambiguous; that held the seven conveyances from ‘*MEI”’ to ‘‘LOM”? prior to the commencement of the ae- tion to be without necessary stockholder approval and, therefore, an improper exercise of the corporation’s power to convey land; that held sales made subsequent to the commencement of the action were subject to the continuing jurisdiction of the court because the seven conveyances from ‘MEI’? to ‘LOM’? were not executed corporate transactions; and which enjoined the defendants from any e App. 14 further sales of land to non-Menominees, Isaacson and the other named defendants have appealed. Defendant ‘““MEI”’, however, is not participating in this appeal. From that part of the interlocutory judgment holding the ‘voting trust’’ valid under Wisconsin law, the plaintiffs have appealed. For the appellant there were briefs by Welsh, Trow- bridge, Planert & Schaefer of Green Bay, and oral argu- ment by Vance M. Waggoner, of Green Bay. For the plaintiffs-respondents there was a brief by Joseph F. Preloznik and Mary E. Van Gemert, both of Madison, and oral argument by Mr. Preloznik, For the defendants-respondents there were briefs by Foley & Lardner of Milwaukee, and oral argument by Gilbert W. Church of Milwaukee. Hantey, J. Three issues are presented on this appeal. 1. Did the trial court err in holding that the Menomi- nee common stock and voting trust was not invalid be- cause it was contrary to controlling federal and state law and the United States Constitution ; 2. Did the trial court err in holding that art. XII of the articles of incorporation of ‘‘MEI’’ was ambiguous and, therefore, a proper matter for judicial construction; and 3. Did the trial court err in holding that the unsold land which was conveyed by ‘‘MEI’’ to ‘LOM’? without the approval of the individual tribal members was sub- ject to plaintiffs’ lis pendens and an injunction prohibiting its sale? Validity of voting trust. The ‘‘Termination Act’? which mandated the complete withdrawal of federal supervision and control over the App. 15 Menominee Tribe called for the formulation of a plan for the future control of tribal property and service functions by the tribe itself. 25 USC, 896 of the federal statute provided that the plan, when completed, was to be submitted to the secretary of the interior who ‘‘.. . shall accept such tribal plan as the basis for the convey- ance of the tribal property if he finds that it will treat with reasonable equity all members on the final roll of the tribe prepared pursuant to Section 893 of this title. and that it conforms to applicable Federal and State law.’’ (Emphasis added.) Contrary to the contentions of the plaintiffe who are as to this issue appellants on appeal, both the secretary of the interior and the trial court were satisfied that the mandate of 25 USC, 896 was complied with. After a review of the various arguments which the plaintiffs have raised, this court reaches the same conclusion. The plaintiffs’ first contention in support of their con- clusion that the voting trust here involved is invalid is that Wisconsin’s voting trust statute, see. 180.27, Stats., was not complied with, See, 180.27, was originally enacted by see. 7 of ch, 731, Laws of 1951, and now provides: “Voting trusts and agreements among shareholders, (1) Any number of shareholders of a corporation may create a voting trust for the purpose of conferring upon a trustee or trustees the right to vote or otherwise rep- resent their shares by entering into a written voting trust agreement specifying the terms and conditions of the voting trust, by depositing a counterpart of the agreement with the corporation at its registered office and by transferring their shares to such trustee or trustees for the purposes of the agreement. Such trus- tee or trustees shall keep a record of the holders of vot- ing trust certificates evidencing a beneficial interest in _ So TEEN FEN App. 16 the voting trust, giving the names and addresses of all such holders and the number and class of the shares in respect of which the voting trust certificates held by each are issued, and shall deposit a copy of such record with the corporation at its registered office. The counterpart of the voting trust agreement and the copy of such record so deposited with the corporation shall be subject to the same right of examination by a share- holder of the corporation, in person or by agent or at- torney as are the books and records of the corporation, and shall be subject to examination by any holder of a beneficial interest in the voting trust, either in person or by agent or attorney, at any reasonable time for any proper purpose. ‘*(2) Agreements among shareholders regarding the voting of their shares shall not be subject to the provisions of this section regarding voting trusts.’” Under the above statutes, pursuant to an agreement, shareholders transfer their shares to the voting trustees which transfers are in turn recorded on the corporation’s book, thereby making the trustee the record holders. Dur- ing the period of the trust and pursuant to the trust agreement, the trustees vote the shares. In exchange for the shares, voting trust certificates which represent the equitable interest in the shares transferred, and any shares which might be awarded as dividends are issued by the trustees to the original shareholders. 7 The statute originally limited a voting trust to not more than twenty years; ten years longer than the Model Code. Fven the twenty-year limitation was omitted by ch, 399 of the Laws of 1953. Such unlimited duration is not common to the statutes of most other states. See Henn, Law of Corporations (1970), p. 392, sec. 197. Sub. (2) of sec. 180.27, exempting shareholder agreements from the provisions of the voting trust statute, was created by sec. 15, ch. 285, Laws of 1971. App. 17 In material part, sec. 180.27, Stats., provides that ‘‘ Any number of shareholders of a corporation may create a voting trust . . . by entering into a written voting trust agreement ...’’ The thrust of the plaintiffs’ argument is that the individual enrolled members and not the C. N. Committee whose members signed as incorporators of ‘““MEI”’ and who also signed the voting trust agreement were the ‘‘shareholders’’ of the corporation for purposes of entering into the agreement. Under the articles of incorporation, ‘‘MEI’’ was granted the authority to issue shares of stock and the ‘‘*MEL”’ directors accepted the subseription of the C, N, Com- mittee which was originally created by the general coun- cil to develop the Termination Plan. The secretary of the interior then advanced $327,000 of the funds he was holding in trust and this money was used to pay for the stock. ‘‘MEI”’ issued a single stock certificate to the committee for 327,000 shares of stock. The C, N. Com- mittee signed the voting trust agreement and named as trustees those individuals previously approved by a gen- eral council and transferred the stock ‘*MEIT’’ held in their name to the voting trust. The trustees then issued voting trust certificates to the enrolled Menominees as evidence of their interests in the stock the trustees held, with each certificate representing 100 shares of stock in ‘*“MEI.”’ The defendants contend that the voting trust was formed in exact compliance with see. 180.27, Stats. Shares in ‘‘MEI”’ were issued to members of the C, N, Commit- tee who then transferred the stock to the trustees on the basis of a written instrument. The shareholders thus created the trust by ‘‘entering into a written voting trust PVP LIOR SP er eK Dae Dib hs eee ae App. 18 agreement’’ as required by statute. Likewise, this pro- cedure conformed exactly to the provisions in the Termina- tion Plan which was agreed upon by the Menominees. Plaintiffs contend that the vote of the general council in January of 1959, which approved the Termination Plan—including the voting trust agreement—could not be a substitute for individual ‘‘shareholder’’ approval. This argument, together with the cases which are cited by the plaintiffs, are all predicated on the proposition that individual Menominees had been issued ‘‘shares’’ of stock in ‘‘MEI’’ prior to the formation of the trust. While it is clear that 25 USC, 893, referring as it does to the ‘‘rights or beneficial interests’’ of each of the en- rolled Menominees, ‘‘shall constitute personal property ... evidenced by a certificate of beneficial interest which shall be issued by the tribe’’ gave to each enrolled Meno- minee at the very least an undivided one third 270th in- terest in the assets of ‘‘MEI,’’ such an interest cannot be analogous to a ‘‘share of stock.’’ Sec. 896 of Title 25, USC, relating to the Termination Plan which the tribe was to formulate, states that ‘‘[t]o the extent neces- sary, the plan shall provide for such terms of transfer pursuant to Section 897 of this title, by trust or other- wise, as shall insure the continued fulfillment of the plan.’’ (Emphasis added.) Sec. 897 provides that ‘‘[o]n or be- fore April 20, 1961, the Secretary [of the Interior] is authorized to transfer to the tribal corporation or to a trustee of the Secretary’s choice ... the title to all prop- erty, real and personal, held in trust by the United States for the tribe.’’ (Emphasis added.) age ban ot aOR PES EL IRA ALI ERI ee The two deeds by which the United States conveyed 3 what now constitutes Menominee county were conveyed 4 to ‘*MEI’’, not to the individual enrolled Menominees. = rite LINEN PRN ER IEEY AME IERIE FRE MSIE IN LN, MENT 5 FE 4198 inne Msi ye ts ff App. 19 Likewise, the Secretary of the Interior advanced the $327,000 of the funds held in trust, not to each enrolled Menominee, but rather to the committee who in turn used it to pay for the stock it had previously subscribed to. Prior to termination, individual enrolled Menominees never had certificates or control over their interests in tribal assets. Indeed, the assets were held in trust by the federal government and were subject to tribal and federal law and not corporate law as the plaintiffs con- tend. While it is clear that the original draftees of sec. 180.27, Stats., never contemplated a factual situation like the one presented in this case, it likewise is manifestly clear that the procedures here employed did not run coun- ter to the statute. The trial court agreed and stated: ‘“‘T am impressed by the reasonableness of the method established in the plan contrasted with the unwieldy procedure of having the shares issued to the individual Menominees some of whom would be mi- nors or incompetents and then placed in trust under procedural requirements of sections 180.27. It is ob- vious that a trust arrangement was considered in the best interests of the Menominees in accordance with their own plan. It seems to me the procedure adopted to accomplish this was eminently sensible.’’ Plaintiffs next contend that the certifieate of bene- ficial interest representing tribal members’ rights or beneficial interests in tribal property was issued, trans- ferred and cancelled in violation of 25 USC, 893. See. 893 of Title 25, USC, after setting forth a very precise procedure for determining who will be considered an enrolled Menominee with the initial decisions by the tribe, followed by an appeal right to the Secretary of the In- terior, provides: Se oa bt Ne EO Pte Et App. 20 ‘‘When the Secretary has made decisions on all appeals, he shall issue and publish in the Federal Register a Proclamation of Final Closure of the roll of the tribe and the final roll of the members. Ef- fective upon the date of such proclamation, the rights or beneficial interests of each person whose name appears on the roll shall constitute personal prop- erty and shall be evidenced by a certificate of bene- ficial interest which shall be issued by the tribe. Such interests shall be distributable in accordance with the laws of the State of Wisconsin. Such interests shall be alienable only in accordance with such regu- lations as may be adopted by the tribe.”’ The certificate itself was executed on June 17, 1964, by James G. Frechette, Chairman, Menominee Advisory Council, and begins as follows: ‘“‘This is to certify that the persons whose names are listed in the schedule attached hereto, identified as ‘Final Roll-Menominee Tribe of Indians of Wis- consin’ (Vol. 22, FreperaL ReoisteER Number 240, pages 9951-9972, inclusive) are the holders (herein- after sometimes called ‘Tribal Members’) of undi- vided equal shares in this Certificate of Beneficial Interest, which evidences the rights and interests of each such person and all of them and the personal representatives, heirs or next of kin of deceased Tribal Members (hereinafter sometimes called ‘law- ful distributees’) to all property, real and personal, now or hereafter, legally or beneficially owned by the Menominee Indian Tribe of Wisconsin. This Certificate has been issued by said Tribe as of June 17, 1954, pursuant to the provisions of section 391, Title 25 U. S. C. and is the Certificate of Beneficial Interest therein described.’’ It goes on to provide that it is delivered to the C. N. Committee who shall hold it on behalf of the tribal mem- bers of their lawful distributees, ‘‘ According to the terms App. 21 of the certificate.’’ Thereafter, the C. N. Committee ‘‘on behalf of the tribal members will cancel the certificate in accord with the terms and provisions of the ‘Plan. . .’”’ The provisions of the plan relating to the certificate pro- vide that: “Description of economic plan. The economic plan, designed to promote the highest beneficial use of the communal property, is set forth in six basic documents: (1) Articles of Incorporation of Meno- minee Enterprises, Ine., (2) By-Laws of Menominee Enterprises, Inc., (3) a common stock and voting trust, (4) a bond indenture, (5) a Menominee As- sistant trust, (6) a Certificate of Beneficial Interest. ‘‘One Certificate of Beneficial Interest in form at- tached will be issued pursuant to section 893 Title 25 U. S. C., with list attached thereto of the tribal roll of 3,270 members as of June 17, 1954 (as finally proclaimed.) The Certificate will be issued as of June 17, 1954, in advance of termination date, and will be held by the Coordinating and Negotiating Committee until that date. At that time, the Com- mittee will mark it ‘cancelled’ and file it with its records. Tay SPAT gH ‘It is a part of this Plan that (1) the issue of stock to the said Coordinating and Negotiating Committee, (2) the issue of voting trust certificates to tribal members and lawful distributees of deceased mem- bers upon deposit of the stock in the Common Stock and Voting Trust, (3) the issue of income bonds, (4) the transfer of real and personal property to the said Coordinating and Negotiating Committee and/or to Menominee Knterprise, Inc., or any subsidiary, (5) the transfer of real and personal property to any public body; shall all be in substitution for and consideration of cancellation of the Certificate of Beneficial Interest and no one shall thereafter have any rights or interest in such Certificate.’’ App. 22 The plaintiffs contend that the chairman of the ad- visory council had no authority to issue the certificate since by express terms of 25 USC, 893 only the ‘‘tribe’’ could issue the certificate. Likewise, they contend that the chairman had no authority to authorize the C. N. Committee to cancel the certificate in accordance with the terms and provision of the Termination Plan. As- suming the chairman did have authority to issue the certificate, the plaintiffs contend the C. N. Committee did not have authority to cancel the certificate in ex- change for ‘‘MEIT”’ stock. First of all, by its very terms, the primary purpose of the certificate of beneficial interest was to put the tribe on record as approving the final roll. The certificate was signed by the chairman of the advisory council for the tribe because he was the high- est elected official of the tribe. Furthermore, the trans- fer to the C. N. Committee of the certificate and its subsequent cancellation of the certificate were in strict compliance with both the terms of the certificate and with the federal statute. Sec. 893 provided that the interests represented by the certificate could be ‘‘alien- able’’ only in accordance with regulations adopted by the tribe. The tribe did adopt the plan calling for the trans- fer of tribal assets to the tribal corporation and trust. The adoption of the plan ‘‘hy the tribe’’ and its use as ‘‘the basis for the conveyance of the tribal property’’ were also authorized by the federal statute. (25 USC, 896, 897) Plaintiffs’ constitutional attack based on both the due process and equal protection clauses are also without merit. As stated before, the individual Menominees were not ‘‘shareholders’’ as that term is used in see. 180.27, App. 23 Stats., and consequently plaintiffs’ argument that no other ‘‘shareholders’’ of a Wisconsin corporation could be made to enter into a voting trust without their in- dividual written approval must fail for that reason. Plaintiffs’ argument that the procedures here employed deprived them of their personal property without due process of law totally disregards the facts that the Ter- mination Plan was approved by the tribe. We conclude that the trial court’s interlocutory judg- ment herein, to the extent that it held the Menominee common stock and voting trust to be valid was correct. Ambiguity of trust. Defendants contend that the trial court erred in de- claring art. XII of the articles of incorporation of ‘*MEI’’ ambiguous and, therefore, subject to judicial construction by resort to extrinsic evidence. The plain- tiffs who, as to this issue, are respondents, support the determination of the trial court. All parties are in agree- ment that extrinsic evidence bearing on the intent of art. XII may only be resorted to once an instrument has been declared ambiguous in light of circumstances surround- ing it at the time of its execution. In re Fortwin Trust (1973), 57 Wis. 2d 134, 203 N. W. 2d 711; Estate of Breese (1959), 7 Wis. 2d 422, 96 N. W. 2d 712. Art. XII in material part provides: ‘‘Unless otherwise authorized by the affirmative vote of the holders of not less than two-thirds of the outstanding shares of stock entitled to vote thereon, the corporation shall have no authority to sell, ex- change, assign, convey or otherwise transfer all or any portion of the real property owned by the cor- poration: .. .’’ (Emphasis added.) ‘ i § M f. i App. 24 The italicized language in art. XII is the subject of dispute between the parties, as that language relates to ‘“‘who’”’ is entitled to vote on proposed sales of land to non-Menominees: the trustees of the voting trust or the individual enrolled Menominees. The trial court con- cluded that it was the intent of the Menominees in en- acting art. XII that such power was to be retained by each enrolled Menominee. It first, however, declared art. XII ambiguous. In regard to art. XII which along with the voting trust formed the very heart of the Termination Act it- self, the trial court entered the following conclusions of law which were incorporated into the interlocutory judgment: “3 =Articl. XII of the Articles of Incorporation of Menominee Enterprises, Inc., requiring the ‘af- firmative vote of the holders of not less than two- thirds of the outstanding shares of stock entitled to vote’ before the corporation may sell land to non- Menominees is ambiguous as it relates to the period of time during which the Corporation’s stock is held by the Voting Trust. ‘4. The seven conveyances of land made by Me- nominee Enterprises, Inc. to Lakes of the Menomi- nees, a partnership, prior to the commencement of this action, were made without the necessary approv- al required by Article XII of the Articles of Incorpo- ration and were an improper exercise of the Corpo- ration’s power to convey land and are, therefore, in- valid.’’ (Emphasis added.) Although the written decision of the trial court «does make reference to several of the provisions of the voting trust agreement, it is evident that the court in deter- mining that individual Menominees and not trustees PIN RI 6 ae tg ROIS ith App. 25 were authorized to approve land sales to non-Menomi- nees, placed principle reliance on art. XII itself. We think the authorities are to the contrary. ‘“‘The powers and duties of the trustees are to be determined from the trust agreement as a whole, not reading one provision to nullify another and thus defeat the trust.’’ 5 Fletcher, Cyclopedia Corpora- tions (1967 rev.) ch. 14, p. 433, sec. 2091.1. ‘‘Powers granted to the trustees by the trust in- strument are rarely confined to voting at the elec- tion of directors; often their authority specifies the power to vote in all respects as could a full owner of shares, including the right to ‘consent’ to fundamental changes, increase or reduction of capital stock, sale of all assets, and liquidation of the corporation. The grant of power, however, must be explicit since the trustees are denied any power not clearly granted.’’ 1 Hornstein, Corporation Law and Practice (1959), p. 298, sec. 212. The question, therefore, is whether the voting trust agreement clearly grants authority to the trustees to sell land to non-Menominees. This court concludes that it does. K ¥ x % 4 % Cy y Kf 3 e YY 3 © g ? ¥ ’ As prescribed by the Termination Plan, the powers of the trustees of the voting trust were spelled out in art. III of the voting trust as follows: ‘“‘TIII Powers or tTrusters 1. The Trustees, in re- spect of the stock held by them hereunder, are here- by vested as owners of such stock (without limita- tion except as herein otherwise expressly provided) with all of the rights, powers, and privileges of every kind and character, of owners thereof, including, without limiting the generality of the foregoing (a) the right to vote the same, as hereinafter provided, for every purpose, (b) the right to become parties to PREMALL a5 BP 4 HOB WAS ARATE L A ey BP Gata OM App. 26 or prosecute or intervene in any suits or other legal or administrative proceedings affecting the stock deposited hereunder, the Company, or the powers, duties or obligations of the Trustees, and (c) the right to transfer all or any part of the Company’s stock held hereunder into their names as Trustees or into the name ‘‘The Trustees of Menominee Com- mon Stock and Voting Trust.’? (Emphasis added.) General language at the beginning of art. LI gives the trustees ‘‘all of the rights’? of owners of the stock, subject to certain exceptions not applicable to the pres- ent dispute, followed by the very specific language of sub. (a) which grants to them the right to vote the shares ‘‘for every purpose.’’ Although referring to this language contained in art. III, the trial court at no time tried to reconcile it with its conclusion of ambiguity. Art. III certainly is clear enough and broad enough to authorize the sale of land to non-Menominees. Other language in the trust agree- ment indicates that certificate holders did not have the right to vote on land sales to non-Menominees. Art. IV requires the approval of two thirds of the certificate holders before the trustees are permitted to sell the stock. The absence of similar provisions re- quiring the approval of certificate holders for land sales implies that approval of the certificate holders was not required for land sales. Art. X of the trust specifically provides that: ‘‘1, The Trustees may construe this agreement, and their construction made in good faith shall be conclusive and binding upon the parties hereto, . . .”’ Such a provision has been recognized in Wisconsin as heing valid. Estate of Koos (1955), 269 Wis. 478, 492, 493, 69 N. W. 2d 598. As reflected in their vote to per- App. 27 mit ‘‘MEI”’ to enter into the partnership agreement with Isaacson, the trustees construed the trust agreement when read on the whole to permit such authorization for land sales on their part. Similarly, the trial court’s de- cision stated that ‘‘[n]o attack is made by anyone on the good motives of the trustees.’’ The trial court’s conclusion and the plaintiffs’ argu- ment on appeal revolves around what all parties recog- nize to be the basic concept of this and other voting trusts; namely, that the trustees vote the shares which they hold as an undivided unit. Consequently, they argue that the words ‘‘holders of two thirds of the outstanding shares’’ contained in art. XII becomes functionless when applied to the trustees since each has an interest in all of the shares. In order to secure trustee approval under that provision, the board of directors of ‘‘MEI’’ must obtain a unanimous decision from all the trustees, else not one share will have been voted. This, however, will automatically include 100 percent of the shares and thus, it is impossible for the voting trustees to vote two thirds of the outstanding shares on any matter since individual trustees do not hold divisible amounts of stock. There is but one stock certificate representing this common trust and all the trustees hold all the stock. All must agree or not one share can be voted in approval of land sales. It is undisputed that the voting trustees unani- mously approved land sales to non-Menominees. As already pointed out, the holders of the shares dur- ing the existence of the voting trust were the voting trustees. While it is true that the language contained in art. XII may have no effect while the trust is still in existence and while the shares are being voted as a unit by the trustees, it will have a clear and unambiguous App. 28 ~ meaning after the trust no longer exists; an eventuality which was within the contemplation of all of the parties at the time the plan was adopted. We conclude that the trial court in holding art. XII of the articles of incorporation ambiguous was in error. Conveyance of land from ‘‘MEI”’ to ‘‘LOM”’. In a supplemental decision, occasioned by orders to show cause brought by the defendants, the trial court held that certain lands conveyed to ‘“*LOM”’ by the ap- proval of the trustees and which were subject to the plaintiffs’ lis pendens, could be enjoined from further sale in spite of the rule that an executed conveyance, even though made in an irregular manner, will not or- dinarily be upset because of the irregularity. The court’s ruling was clearly premised on its belief that art. XIT was ambiguous and that only enrolled Menominees could authorize the sale of land to non-Menominees. Since the trial court was in error on its original prem- ises, it was likewise in error to enjoin the sale of land held by ‘‘LOM.”’ By the Court.—That part of the interlocutory judg- ment which held the voting trust valid is affirmed, Those parts of the judgment which held art. XII of the articles of incorporation ambiguous ; which interpreted that only enrolled Menominees could approve land sales to non- Menominees; and which enjoined the future sale of the land held by ‘LOM’? are reversed. B rpoaee App. 29 STATE OF WISCONSIN : IN SUPREME COURT Henry L. Tomow, Sr., et al., Plaintiffs-Respondents, v. Menominee Enterprises, Inc., et al., Defendants-Respondents, N. E. Isaacson & Associates, Inc., Defendant-Appellant, No, 508 OPINION ON MOTION FOR REHEARING (Decided August 14, 1973) PIR CURLAM (On motion for rehearing). It is urged that the opinion of the court, in connection with the number of trustees necessary to cast a vote, can be con-: strued to mean that there must be a unanimous agree- ment of all the trustees of the voting trust to vote the stock they hold. If this construction can be drawn from the opinion, it is withdrawn. As noted in the opinion, the Trust Agreement in the plan provided the trust could act upon the affirmative vote of five of the seven trustees. This provision of the Trust Agreement was subsequently amended to provide an affirmative vote of seven trustees was required. This was done to accommodate this same amendment which increased the number of trustees from seven to eleven. Thus, as the Trust Agreement now pro- vides, seven affirmative votes of the eleven trustees are sufficient to vote the entire stock held by the voting trust to approve the sale of land to non-Menominees. Motion denied without costs. App. 30 APPENDIX B STATE OF WISCONSIN CIRCUIT COURT MENOMINEE COUNTY Case No. 33 HENRY L. TOMOW, SR., et al., Plaintiffs, vs. MENOMINEE ENTERPRISES, INC., et al., Defendants. DECISIONS ON MOTIONS (October 26, 1972) Subsequent to this Court’s decision in the above matter on July 24, 1972, two motions were brought on by orders to show cause. These sought to clarify and limit the injunction which was authorized in the decision. I have now had all of the briefs of counsel and will attempt to deal with questions posed by these motions. It was agreed at the time of the hearing on these mo- tions that there were 121 sales in which offers of pur- chase had been accepted, but the delivery of deeds and the formal closing had not occurred. In six of these sales the offer and acceptance had occurred prior to Octo- ber 24, 1971, which was the date of the filing of the lis pendens in this action. A very substantial amount of money estimated by counsel at close to $900,000 is in- volved in these contracts of sale. Counsel for Isaacson relies on a well-understood principle of law that an exe- cuted conveyance even though made in an irregular man- ner will not ordinarily be impeached or disturbed hecause of any irregularity in the exercise of an unquestioned power of the corporation. Section 180.04 and 180.06 are App. 31 cited as supporting this position. Counsel's position is stated as follows: “Clearly, under Section 180.04, Wisconsin Statutes, and under the Articles of Incorporation, Menominee Knterprises, Inc, had the capacity and power, as a corporation, to make conveyances of land to anyone. ‘It has long been the law in Wisconsin that even an ultra vires contract of a corporation will not be impeached or overturned when that contract is fully executed. The above-quoted case state this rule. “This rule has also been codified in Section 180.06, Wisconsin Statutes, which permits a court to enjoin only executory ultra vires contracts.’’ Counsel makes the further point that even though the irregularities in this case may not be strictly speaking ultra vires acts that the same result would oceur citing Blue River Company vy. Summit County Development Corporation, 207 F.Supp. 283. The Court in this case quoted Fletcher, Cyclopedia of Corporations, §3402 as follows: ***Another class of corporate contracts which are sometimes said to be ultra vires, although the phrase as applied to them is inaccurate, is where the power exists to do what was done, provided the corporation (oes it in a certain preseribed way. In other words, the irregular exercise of an unquestioned power of the corporation is not ultra vires. Thus, informalities in connection with consent of stockholders to the con- tract are often incorrectly referred to as ultra vires, using the tern in its strict sense, The fact that the re- quired consent of stockholders is not obtained does not make a contract ultra vires.’ ’’ Counsel for the plaintiffs also cited 180.06(1) for the position that the pending sales may be enjoined. This is the section which provides that in a proceedings by a share- 2 Og: ‘mg # a 3 > a 4 ‘ 4 % BY App. 32 holder the Court may set aside or enjoin the performance of a contract and at the same time allow compensation for certain damages. It would seem the whole question hinges on whether the transfer of 5,170 acres of land by seven warranty deeds by Menominee Enterprises, Inc. to the Lakes of the Menominees, a partnership, has the effect of a completed or executed transaction. These deeds were recorded prior to the lis pendens. I have concluded that they are not entitled to this standing in the law since Me- nominee Enterprises, Inc. was one of the partners. The deeds were not final acts but part of an overall joint ven- ture for the sale of these lands to persons seeking to pur- chase them as cottage sites. In other words it is my judg- ment that from this standpoint the transfer of the land to the partnership in accordance with the agreement for the sale of this land does not substantially alter the result. I am of the opinion that the test whether or not the mat- ter is a completed transaction or executory has to be ap- plied with respect to the ultimate purchasers and not to the conveyances to the partnership. Counsel also argues that what this Court has done is to reform the written instru- ments to reflect the intent of the parties rather than in- terpret the writings. Assuming this is correct and that it may have an effect on the ultimate result, I don’t think it would change the application of the lis pendens considera- tions. LIS PENDENS I am of the opinion that the lis pendens which was filed in this matter has the effect of making all subsequent pur- chasers subject to the legal proceedings in this case. At the time of the argument I had indicated that I considered that a distinction existed with respect to the six sales in VET IRS ENN FG FN MTEL ae OB ES PSSM OE a App. 33 which the offers had been accepted prior to the filing of the lis pendens. The case of J and S Corporation v. Mort- gage Associates, Inc., 41 Wis. 2d 418, casts doubt on this distinction. It may be that the time of the recording of the interests of these purchasers is the significant time. The Court in the J and S Corporation case, supra said at page 423: ‘‘The statutes makes immaterial the time when the holder of the unrecorded conveyance or encumbrance in fact received his interest.’’ For the purpose of this injunction, however, I have de- cided to exclude these particular transactions although the purchasers themselves may wish to proceed with some caution. SALES TO MENOMINEES Counsel has called the attention of the Court to the fact that a question has been raised as the result of this deci- sion in regard to sales by the corporation to Menominees. This decision, of course, does net affect these sales in any way. In my view of the case which considers the plan and its implementation to be valid in every respect, I can see nothing that would in any way challenge the validity of sales to Menominees. SETTLEMENT AGREEMENT Counsel makes a very persuasive argument that this Court ought to permit the orderly settlement reached by some of the parties to this case to take its course. This agreement (made part of the record by affidavit) was en- tered into on July 9, 1972, prior to the decision in this case } ess 150 SO Ghee ae DEAN OEE ATEOLS Bri EE ata ree App. 34 but subsequent to the trial. It excludes this litigation. 1 am always aware of the desirable nature of a good settlement and recognize that many times it produces a better result than a disposition which follows the logic of the law. As- suming, however, that I am correct in my major premise as I must do, I do not see where I have any right to do more than to suggest or recommend a settlement. PROSPECTIVE APPLICATION Counsel has also urged that this Court apply its ruling prospectively only permitting all transactions which were entered into prior to the date of the decision to stand. The leading case of Great Northern Railroad Company v. Sun- burst Oil and Refining Company, 287 U.S. 358, is cited for this approach. Linkletter v. Walker, 381 U.S. 618, and Gott- licb v. Milwaukee, 33 Wis. 2d 408 are also cited as more recent applications of this rule of law which limits retro- active application of a principle of law to avoid undue hard- ship. I am not sure that these cases which involve consti- tutional interpretations apply, but in any event, I believe that as a trial Court I ought not to adopt any such remedy. CONFUSION RESULTING FROM THE DECISION I would be of the opinion that it would be better for counsel to attempt to advance the case on appeal than to have the Court adopt some of the other suggestions to avoid unnecessary hardship to the interested parties. I can well understand the concern of counsel in this matter that an appeal of this case may result in a different result. I would suggest to counsel that I would be glad to meet informally with them to expedite the making and signing of findings of fact and conclusions of law. One thing I App. 35 have noted is that some of the delays that have occurred resulted from waiting for exchange of briefs and authori- ties in the matter. I am concerned, of course, about the ex- tent to which the decision may affect a large number of people. I am mindful too of the most regretable and un- necessary inconvenience to many persons which would re- sult if the Supreme Court would reach a different decision on the basic question in the case. I will, therefore, make my- self available at the earliest possible time that counsel wish to get out the findings of fact and conclusions of law. Counsel at the time of the hearing on these motions for clarification have discussed some of the remaining aspects of this case which would have to be resolved eventually. I would prefer not to deal with any other remedies. It is my hope that the basie question could be resolved finally be- fore anything further is done by this Court which would affect the rights of persons in these lands. Dated this 26th day of October, 1972. BY THE COURT: /s/ William J. Duffy Cireuit Judge z yj f y. ‘ Hy ERIE. TO Sa, CES TR OS PE AEGRIIES HRs LITRE PI h Le App. 36 STATE OF WISCONSIN CIRCUIT COURT MENOMINEE COUNTY Case No. 33 HENRY L. TOMOW, SR., et al., Plaintiffs, vs. MENOMINEE ENTERPRISES, INC., et al., Defendants. DECISION (July 24, 1972) FACTS Counsel have stipulated to many of the facts in the formal stipulation covering 24 paragraphs, Most of the facts are agreed to, and only in a relatively narrow area is there a dispute. The Menominee Indian Tribe was well established in Wisconsin 200 years prior to the appearance of the Kuro- pean settlers. Except for a small cession of land to the Stockbridge-Munsee Reservation, the last of a series of treaties between the United States and the Menominee Tribe occurred in 1854, “The Treaty of Wolf River.”’ Under the treaty the Menominees ceded land to the United States, and the United States agreed to give to the Menomi- nees the land on whieh the present Menominee County is laid out. Until termination, which became effective on April 30, 1961, tribal affairs were conducted by the Gen- eral and Advisory Councils. The General Councils were ineetings open to the entire tribe with all adult enrolled Menominees being able to vote. The Advisory Council created in 1928 was an elected body concerned primarily App. 37 with the business management of day-to-day affairs. Its actions could be overturned by a vote of the General Coun- cil or by the Secretary of the Interior. In 1953 Congress by concurrent resolution instructed the Secretary of the Interior to recommend legislation for the withdrawal of the federal supervision over the Menomi- nees as well as other named tribes. In 1954 Congress passed the Termination Act, P. L. 399, 25 U.S.C.A. 892-902. It was later amended on July 14, 1956, July 2, 1958 and Sep- tember 8, 1960. In November, 1957, a General Council of the tribe created the Coordinating and Negotiating Committee, hereinafter referred to as the C and N Committee, Its purpose was to develop a termination plan under the authority from the General Council which created it. In December of 1957 the final roles of membership in the Menominee Tribe were closed, and the membership list of 3,270 persons was pub- lished in the Federal Register. A ‘*Termination Plan’’ was proposed to the General Council in a series of three meet- ings in January of 1959. As amended by those present, the plan was approved by a vote of 91 to 16 on January 17, 1959. Details for the implementation of the plan were contained within the plan itself. The opening language of the plan reads as follows: ‘The Plan consists of the following documents: 1. Statement of the Plan and Description of its Objectives and Goals (revised December 1, 1960). 2. Articles of Incorporation of Menominee Enter- prises, Inc. (vevised November 30, 1959). 3. By-Laws of Menominee Enterprises, Ine. (re- vised November 30, 1959). 4. Menominee Common Stock and Voting Trust (revised November 30, 1959). App. 38 5. Menominee Assistance Trust (revised November 30, 1959). 6. Menominee Enterprises, Inc., Bond Indenture (form of bond included) (revised November 30, 1959). 7. Menominee Indian Tribe, Certificate of Bene- ficial Interest. ‘In addition the following documents are included by reference: 1. Resolution of General Council, Menominee In- dian Tribe, January 17, 1959. 9. Resolution of General Council, Menominee In- dian Tribe, July 27, 1959. 8. Resolution of Advisory Council, Menominee In- dan Tribe, July 28, 1959. 4. Letter of Glen A. Wilkinson, Attorney for Tribe, to Seeretary of Interior, July 31, 1959. 5. Letter from Acting Seeretary of Interior to James G. Frechette, Chairman, Menominee Advisory Council, July 31, 1959. 6. Letter from Acting Secretary of Interior to James G. Frechette, Chairman, Menominee Advisory Council, October 30, 1959. Ga. Letter from George W. Abbott, Assistant See- retary of Interior to Jerome Grignon, Chairman, Me- nominee Advisory Council, January 9, 1961. 7. Copies of Chapters 258, 259 and 260, Laws of Wisconsin, 1959.” Pursuant to the plan, the trustees were elected by the General Council. The members of the @ and N Comittee as incorporators of Menominee Enterprises, Inc., herein- after referred to as MEI, subscribed to all of the stock in MEL The directors whose names appeared on the article, who had been previously chosen informally, were formally chosen by the trustees. The directors accepted the sub- seription of the committee, The Secretary of the Interior App. 39 advanced $327,000 of the funds he was holding in trust, and that money was used to pay for the stock. The corpora- tion issued a single stock certificate to the C and N Comnmit- tee for 327,000 shares of stock. The committee signed the Voting Trust Agreement and named as trustees those indi- viduals previously approved hy the General Council and transferred the stock in MEI held in their name to the Vot- ing Trust. The trustees then issued certificates to enrolled Menominees as evidence of their interest in the stock the trustees held, On August 10, 1967, the Board of Directors and the trustees jointly passed a resolution which reads as follows: “WHEREAS, there is no other means sufficiently capable of accomplishing the economic improvement of the Menominee community except by adoption and implementation of the Ernst & Krnst Report; and “WITEREAS, to provide necessary tax resources for Menominee County and/or the Town of Menominee and for the relief of taxation on Menominee Enter- prises, Inc, (and the residents of Menominee County, Wisconsin), and to assure continued Menominee own. ership thereof ; “7, BE IT RESOLVED, that Menominee Enter- prises, Ine, is authorized to proceed with the recom- mendations of the Ernst & Ernst Report as opportunity and feasibility permit; and “TT. RESOLVED FURTHER, that the corpora. tion is authorized to define economic development zones on its land in Menominee County, Wisconsin, not to exceed 8,760 acres in areas to be defined and deseribed from time to time by the Menominee Com- non Stock & Voting Trust and/or the shareholders of the Corporation, whichever then holds the common stock; and SEC ee 4 | : ee See Sis hane ryt 4 App. 40 “TIT, RESOLVED FURTHER, that pursuant to Article XII of the Articles of Incorporation of Menomi- nee Enterprises, Inc. within such economic develop- ment zones warranty deeds may issue as a form of land transfer, provided a sufficient form of quality control is a condition of such transfer, and provided always that sufficient areas of land on lakeshore be reserved for Menominee use.”’ On September 28, 1967, a referendum was held, and all holders of Voting Trust Certificates were invited to express their opinions. Of a total of 109,125 votes cast, 97,738 were for and 11,887 were against the resolution, Among. the ‘tyes’? votes were 79,362 votes cast by First Wisconsin Trust Co. which yoted the interests of minors and incompe- tents. The referendum was announced as “advisory,” and the written material distributed referred to the use of war- ranty deeds. On July 9, 1968, MEL and N., BK. Isaacson and Associates, hereinafter referred to as Isaacson, entered into a joint agreement calling themselves Lakes of the Menominees, hereinafter referred to as LOM. They planned to develop and sell to persons including non-Menomineces certain lands situated in that part of the economic zone and approved for development. The joint venture agreement was subject to the approval by the trustees which was given by unani- mous resolution in July of 1968. In 1969 Tsaaeson and M KI agreed to increase the number of lots to be developed and sold from 1,800 to 2,600. On February 4. 1972, ata Board of Directors meeting, the legal status of the LOM contract was raised, The original agreement stated that it dissolved as of Deeember 1. 1971, unless extended by the parties. At a reconvened App. 41 meeting of the Board of Directors on February 11th, it was decided that the executive committee would meet with Isaac- son to explore the possibility of negotiations on a contract. On March 17, 1972, the Board of Directors voted in favor of continuing the LOM contract to December 31, 1972. The presidentof MII thereupon confirmed the extension in writing to Isaacson which agreed to the extension. Since December 31, 1972, no action was taken by certificate hold- ers or trustees concerning land sales to non-Menominees. In April, 1972, six trustees out of eleven signed affidavits at the request of Plaintifi's’ counsel that they opposed the sales to non-Menominces. If a vote were taken, they indi- cated they would vote against such sales. The original pleadings were amended to set forth these facts and to allege a lapse of the contractual relationship. A motion for a temporary injunction against any further sales was denied by this court in a decision dated the 24th of April, 1972. The Termination Act, 25 U.S.C.A,, contains the follow- ing language ; 25 U.S.C.A. 893 ‘ ‘... the rights or beneficial interests of each person Whose name appears on the roll shall constitute per- sonal property and shall be evidenced by a beneficial interest which shall be issued hy the tribe. Such in- terests shall be distributable in accordance with the laws of the State of Wisconsin. Such interests shall he alienable only in accordance with such regulations as may be adopted by the tribe,” App. 42 95 U.S.C.A. 896 “The Seeretary shall accept such tridal plan as the basis for the conveyance of the tribal property if he finds that it will treat with reasonable equity all mem- bers on the final roll of the tribe prepared pursuant to Section 893 of this title, and that it conforms to applicable Federal and State laws.”’ Others facts will be mentioned in the decision. SSUES This suit is by 162 Menominees against Menominee Kn- terprises, Ine, and the officers and directors of Menominee Enterprises, Ine., and the trustees of the Menominee Com- mon Stock and Voting Trust and Isaacson, a partner with Menominee Enterprises, Ine. in the Legend Lake Develop- ment, Plaintiffs contend that the Voting Trust was not set up pursuant to Section 180.27, Wisconsin Statutes, which reads as follows: “Any number of shareholders of a corporation may create a voting trust... by entering into a written agreement . 647’ (Section 180.27 W.S.A., App. p. iii) Plaintiffs’ also contend that the trustees did not have the power or the authority under Article XII of the Articles ‘ of Incorporation to authorize the sale of lands to non- Menominees. In the amended complaint ‘referred to above, plaintiffs also vontend that even if the LAM agreements — were originally valid that due to the automatic termination ‘ of the agreement and the present make-up of the trustees i there was no longer any authority for the sale of land after ¥ December 31, 1971, , 4 as hee et App. 43 The defendants contend, of course, that the trust was validly set up and that Article XII was complied with by the unanimous vote of the trustees and that the failure to take action prior to the termination date established in the contract was cured by action taken afterwards and proper- ly ratified, Defendants also take the position that the main issues raised by the plaintiffs are res judicata as the result of two earlier circuit court cases, ISSUK OF RES JUDICATA The two cases on which defendants rely are White, et al. v, Kenote, et al. and Lakes of the Menominees vy. A gnes Dick, et al, both Menominee County Cireuit Court cases. In the White case, the trial court dealt with certain provi- sions of the Voting Trust and the Assistance Trust as they related to the holding of an election to determine whether the Voting Trust should be renewed pursuant to Article XII paragraph 2 of the Voting rust Agreement. The decision of that court assumes the validity of both the Voting ‘Trust and the Assistance Trust which in the argument of the defendants has the effect of making this matter res judicata since the validity of the trust could have been raised at the time of the trial. In my view of the law, the Voting Trust is valid. Therefore, this issue is not dealt with at length. However, in the presentation of the case, | attempted to permit counsel to make as com- plete and full a record as each felt they should. In the Lakes of the Menominces case, individual members of an organization called DRUMS were enjoined from picketing the business office of the Legend Lakes project of LOM. Some of them are plaintiffs here. I doubt very seriously that the issue of the authority of the trustees to App. 44 vote for the sale of lands to non-Menominees would be prop- erly litigated in that matter, In my judgment it would be collateral and not necessary to the plaintiffs’ case, The trial court indicated he had not made a study of the title issue although he indicated he would approve a finding of title in LOM. (Exhibit 25, page 40) In his findings of fact, he found that the LOM had deeds from MEI, In his con- clusions of law, he does not mention title. The principle of res judicata applies when a prior law- suit has involved indentity of the thing sued for, identity of the causes of action, identity of the parties and the quali- ty and capacity in which they appear in the litigation, Gohr v. Beranek (1954) 266 Wis. 605, 609, 64 N.W, 2d 246; ¢ ‘ohan y. Associated Fur Farms, Inc, (1952) 261 Wis. 584, 598, 58 NW. 2d 788, 795; and Conway v. Division of Conservation (1971) 50 Wis. 2d 152, 160, 183 N.W, 2d 77. I have concluded that this case cannot be decided on the principles of res judicata because the issues as well as the parties are substantially different. ISSUE OF THE VOTING TRUST Defendants make a very urgent argument that the failure to follow the statutory requirements of Section 182.07 is contrary to the Termination Aet which provides in part as follows : that it conforms to applicable Federal and State laws.”’ App. 45 Defendants make the point that this section of the Wis- consin Statutes is a codification of the common law rule that voting trusts must be in writing to comply with the Statute of Frauds, Plaintiffs’ counsel cites a number of precedents from different jurisdictions Which, in effect, do indicate that courts have been concerned with the manditory nature of the compliance with similar statutes, ‘These cases sug: Best that public policy considerations are involved which would be in addition to the Statute of Frauds purposes, It is my judgment that neither the purposes contemplated by the Statutes of Frauds or the public policy considera. tions raised by plaintiffs are involved here, The plan clearly contemplates the procedure which was actually followed. As defendants’ counsel points out, the mem. bers of the C and N Committee signed the written agree. ment of trust in accordance with the plan. The plan also provided for the transfer of the shares of stock to the trust sometimes in advance of termination even before the corporation owned the assets of the Menominee Tribe, Plaintiffs’ counsel in answer to this points out that in the legislation passed in 1954 establishing the Menomi- nee Rolls cach Menominee was given a vested interest. From this fact counsel argues that a proper compliance with Section 180 would require a written consent of each holder of such interest. Tt is my judgment that this cian f App. 46 literal interpretation is probably overtechnical. I am im- pressed by the reasonableness of the method established in the plan contrasted with the unwieldy procedure of having the shares issued to the individual Menominees some of whom would be minors or incompetents and then placed in trust under the procedural requirements of Seec- tion 180.27. It is obvious that a trust arrangement was considered in the best interests of the Menominees in accordance with their own plan. It seems to me the pro- cedure adopted to accomplish this was eminently sensible. I cannot conclude that the plan approved by the Secre- tary of the Interior fails because it violates applicable state law in this respect. 3 It is my judgment, therefore, that the Voting Trust is not invalid for a failure to comply with Wisconsin law. I should note that plaintiffs contend that other individuals in Wisconsin would not be bound by a voting trust agree- ment which failed to follow this statute and that, there- fore, there is a violation of the Fourteenth Amendment ‘© nor shall any state . .. deny to any person with its jurisdiction the equal protection of the laws.’’ stage Also defendants claim that the Fifth Amendment to the Federal Constitution is violated: ‘*. . . nor shall any person .. . be deprived of life, liberty or property, with- out due process of law. .. .” hu kat RL i ee ae eee a se ai Oe Me al OC POWER OF THE TRUSTEES TO VOTE THE SHARES AUTHORIZING THE SALE OF LAND Parol Evidence Rule Defendants claim throughout that the authority of the trustees is contained within the four corners of the writ- ten instruments comprising the plan; that there is no ambiguity and consequently no basis for the reception App. 47 of parol evidence. Pines y. Perssion, 14 Wis. 2d 590, 594, 11 N.W. 2d 409 (1961); Hart v. Hart, 117 Wis. 639, 648- 649, 94 N.W. 890 (1903). Defendants’ counsel further argues that the parol evi- dence rule operates with special force when the meaning in a federal statute or regulation is at issue. ‘“‘The legislative will must be ascertained from the text of a statute if the words are clear and plain and the whole enactment internally cohesive.’ Fisher Flowing Mills Company v. United States, 270 F.2d 27, 30 (9th Cir. 1958). It is pointed out that the language in the trust agree- ment uses the words, ‘‘holders . . . entitled to vote there- on.’’ Attention is also drawn to Article III of the Trust Agreement which states that the stock held may be voted without limitation except as expressly provided. Em- phasis is placed by defendants’ counsel on the language contained in paragraph one of Article X of the Trust which provides as follows: “The Trustees may construe this agreement, and their construction made in good faith shall be con- clusive and binding upon the parties hereto. . .” Counsel for the plaintiffs on the other hand insist that extrinsic evidence is admissible to show the intent of the parties hecause there is an ambiguity contained in the writings. Their brief makes this statement: ‘“**Holders of two-thirds of the outstanding shares’ becomes functionless when applied to the trustees. Each has an interest in all the shares. In order to obtain trustee approval under that provision, the Board must get a unanimous decision from all the trustees thereby automatically including 100 percent of the shares. Or does it mean two-thirds of the holders?’’ _—— eae Es & f 5 ts & 3 7 (bis POET ETA TI Ss App. 48 Still another interpretation in addition to the two men- tioned in the paragraph quoted above is the third and probably more logical one that a simple majority of the trustees could authorize the sale of real estate if this authority granted in this article can be exercised by the trustees. At the time of the adoption of the pertinent language in Article XII, there was a provision for only seven trustees. This was subsequently changed to eleven, I have concluded that the language is ambiguous as it relates to the interum period during which time the trustees held the voting shares. The situation in. April of 1972 when six of the eleven trustees signed an affidavit that they would oppose the sale of lands to non-Menomi- nees highlights the problem of interpretation. The parol evidence rule excludes extrinsic evidence un- less the writing is ambiguous, unclear, indefinite or con- tradictory. “In determining whether a writing is ambiguous, the court does not merely examine the document, but serutinizes the language of the document in light of the surrounding circumstances, Consequertly, paro! evidenee must at least be provisionally admitted in order to develop: these circumstances, If the court eoneludes that on the basis of such extrinsic proof a reasonable man could interpret the writing to mean anything other than what the ordinary meaning of the words indieate, then parol evidence may he received to establish what was meant by the writing. Or if the parol evidence shows that a literal application of the language of the writing would lead to an absurd result, the extrinsic proof may be relied upon to arrive at a rational construction of the writing which effectuates what appears to have been the intention of the par- ties? Wisconsin Civil Trial Evidence $9.31 Determin- ing Existence of Ambiguity. ° EPONA GEE MEP TLE IIIS B10 PE RNS FERNS LATER OEY ERG, SS PEE AIR IM, a App. 49 In the course of the trial, extrinsic evidence was per- mitted over objection of counsel for the defendants which I believe was procedurally the correet method to follow. ‘*(2) Procedural Aspects of Application of Rule. The parol evidence rule may be the basis for reject- ing evidence when it is offered, or for refusing to consider evidence, which has been received, from the ultimate decision at the end of the trial. Frequently, the court is unable to determine whether the parol evidence rule should be applied until sufficient ex- trinsic evidence has been developed in the record. Regardless of when the rule is applied, however, the critical question is whether the writing expresses the complete and correct integration of the terms on Which the parties agreed,” Wisconsin Civil Trial Evidence $9.14 Substantive and Procedural Aspects. 1 am aware that the decision Whether to admit extrin- si¢ evidence involves a judgment to be made by the trier of facts. I am aware that this brings into play a number of considerations on which reasonable people can differ. Certainly in this case they have differed. Counsel for the defendants have argued throughout that I avoid mak- ing a decision on rhetorie. Underlying our discussions was an appreciation of the fact that American history is replete with instances where the Indians have clainued that land was wrongfully taken from them. I would not be candid if I indicated that this was not a concern of this Court. At the same time | did make an effort to separate this general proposition from the statements and actions of the individuals in this case in an effort on my part to find out what the true intent of the Menomi- nees was with respect to the sale of land. Ordinarily our law does not favor restrictions on alien- ation, and a proper construction of the trust agreement would probably place the power of sale in the trustees. SEN HAN ey y rere WR Re TONSA OR tag? SONGS TB PPTL POLL AL EL AE DL ETE LIL IEC M ILE. App. 50 However, I consider that this is not an ordinary trust agreement but one that requires a consideration of the background and an interpretation of the plan against the proper setting. I cannot escape the conclusion that the systematic sale of these lands for purposes of obtaining revenue with the additional purpose of building a tax base was not within the contemplation of the Menominees at the time of the adoption of the plan. Intent On the question of the intent to be found in the plan, I start with the proposition that it is basically the plan of the Menominee Indians. The Secretary of the Interior approves of the plan under the federal statute if it meets certain conditions. I am of the opinion that to determine the intent of the framers of the plan that the minutes of the tribal meetings as well as the minutes of the Advisory Council and the C and N Committee were all proper and competent evidence. I find from a reading of the minutes of the General Council of November 6th and 7th, 1957, and minutes of the Advisory Council of January 3, 1997, that the council retained authority over the C and N Committee. Minutes of the meeting of August 14, 1958, (Plaintiffs’ Exhibit No. 7) indicate at the outset a deep concern that the land would get into the hands of outsiders. An informal vote resulted in voting for leases only at that time and a small number for a combination of leases and sales with op- tions to repurchase. At a General Council meeting called for January 9th and 10th, 1959, Article XII was origi- nally presented reading as follows: (Plaintiffs’ Exhibit No. 9) “Unless otherwise authorized by the affirmative vote of the holders of not less than two-thirds of the out- standing shares of stock entitled to vote thereon, the REO RPE Re REAR TOL ENON ND App. 51 corporation shall have no authority to sell, exchange, assign, convey or otherwise transfer all or any por- tion of the real property owned by the corporation, other than real property designated by the board of directors as forest lands; provided, however, that the board of directors, or the appropriate officers at its direction, shall have authority to lease, mortgage or pledge ail or any portion of such property, on such terms and conditions as it shall deem advis- able, without shareholders’ consent.’’ 4 : In the meetings of both January 9th and 10th, 1959, challenges were made to giving the Board of Directors power to sell land. All of the expressed sentiment was against sales of any land. No one spoke in favor of any limited or emergency sales. Even one to the State of Wisconsin for park purposes was discussed adversely by Mr. Gordon Dickie, a member of the C and N Committee who was a witness in this case. The meeting was ad- journed until January 17th when the chairman announced there was no longer a quorum. On January 17th Article XII was resubmitted in a form which gave no power of sale to the Board of Directors without approval of two-thirds of the shareholders. It provided that the Board of Directors would have au- thority to lease real property other than lands des [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1204%3A1. Public record. Not legal advice.