Wisconsin Supreme Court, 4-3: an association cannot sue a tribe over its covenants
Wisconsin Supreme Court, 4-3: an association cannot sue a tribe over its covenants
2026-09-21 · Wisconsin · Courts
A Wisconsin property owners association wrote a sovereign-immunity waiver into its own restrictive covenants, sued to enforce them against tribal land, and learned that a covenant cannot create jurisdiction over a party that never took the deed. Legend Lake Property Owners Association, Inc. v. Keshena, 2026 WI 21, was decided June 23, 2026 by a divided Wisconsin Supreme Court.1
The majority was written by Justice Susan M. Crawford, joined by Chief Justice Karofsky and Justices Dallet and Protasiewicz. Justice Rebecca Grassl Bradley dissented, joined by Justice Ziegler; Justice Hagedorn also dissented, joined by Justices Ziegler and R.G. Bradley. The case reached the court on certification from the Court of Appeals under Wis. Stat. Rule 809.61.
What the association was trying to do
Legend Lake is a large platted development in Menominee County built on land that had been part of the Menominee reservation. The association amended its bylaws and covenants in 1989, 2001 and 2009. The court describes the purpose of those amendments plainly at ¶7:
“These restrictions were plainly aimed at preventing the Tribe from reacquiring its former reservation lands that were now part of the Legend Lake development. In addition to prohibiting any transfer to a ‘sovereign or dependent sovereign nation’ or the placement of any property into federal trust, the 2009 amendments prohibited transfers that would remove any property from the county tax rolls, exempt property from real estate taxes, or remove property from county zoning authority or the jurisdiction of the state, among other restrictions.”
Guy Keshena, a tribal member, acquired more than thirty lots, which the United States then took into trust for the benefit of the Menominee Indian Tribe. The association sued for a declaration that its covenants were valid, applied to those lots, and voided any transfer that violated them — and argued the covenants bound the lots to association rules and assessments in rem, “notwithstanding a transfer to an owner not otherwise subject to them” (¶11).
The clauses the association drafted for exactly this fight
The covenants contained a forum clause and a waiver clause, both quoted at ¶27. The waiver clause read:
“Waiver of Defense. By acceptance of a deed transferring title ownership of any portion of the Subject Real Estate, the title owner hereby waives any defense to an action filed with respect to these Restrictive Covenants by the Association based on sovereign immunity, and expressly consents to suit as provided for in Paragraph 4F above, and enforcement of any judgment rendered therein.”
The circuit court dismissed the case. The Supreme Court affirmed.
Why the waiver clause did nothing
Both drafted clauses operate on a person who accepts a deed. The Tribe never did. ¶30:
“The Tribe did not draft the restrictive covenants or negotiate the restrictions with the Association. The Association unilaterally imposed the restrictive covenants on the Legend Lake parcels in 2009, in an effort to prevent the Tribe from restoring any of the property to its reservation. The Tribe did not purchase or acquire title to the lots. Thus, in the language of the covenants, it is not a ‘purchaser,’ did not ‘accept[] the deed[s],’ and did not thereby ‘consent[] to the exclusive jurisdiction and venue’ of the state court… The Tribe never affirmatively agreed to waive its sovereign immunity in state court actions regarding the restrictive covenants.”
The United States holds title in trust; the Tribe is the beneficiary. So the clause that was written to solve this exact problem had no one to operate on.
The three doors the court closed
Congressional abrogation. The association argued the Menominee Restoration Act stripped immunity. ¶26: “given the absence of ‘unmistakably clear’ language that abrogates immunity, we hold that the Restoration Act did not abrogate the Tribe's sovereign immunity.” ¶23 states the rule: “an abrogation of immunity must be explicit and will not be implied.”
The in rem theory. This was the association's main structural argument — that a covenant runs with land and an action against land is not an action against a person. ¶42: “We agree with the reasoning set forth in Timber & Wood Products and hold that in rem claims do not operate as an exception to tribal sovereign immunity.”
An immovable-property exception. ¶48: “We decline to recognize a common law immovable property exception to tribal sovereign immunity.”
Suing the individual did not work either. ¶52 holds Keshena “is no longer a proper defendant… because he no longer holds title to or an interest in the Keshena lots,” and ¶53 adds that even if he were, the Tribe is the real party in interest, because the remedy “would operate against the Tribe, as it is the beneficiary of land held in trust by the United States.”
The summary at ¶54: “Tribal sovereign immunity is the rule, not the exception. A litigant can overcome tribal sovereign immunity if Congress abrogates it or if a tribe clearly waives it. Neither occurred here.”
The three dissenting votes
This was 4-3, and the dissent opens by quoting Upper Skagit Indian Tribe v. Lundgren, 584 U.S. 554, 562 (2018): “The correct answer cannot be that the tribe always wins no matter what; otherwise a tribe could wield sovereign immunity as a sword and seize property with impunity, even without a colorable claim of right.” (¶56, R.G. Bradley, J., dissenting.)
A three-justice dissent on a doctrine the U.S. Supreme Court has repeatedly revisited means this is contested law rather than settled law, and Wisconsin's answer could change with the court's composition or with a federal ruling.
What it means for a Wisconsin association's ledger
The covenants were never construed. The association lost before anyone decided whether its restrictions were valid. What follows is structural rather than interpretive: once a parcel inside a Wisconsin platted development passes into federal trust, the association has no state-court mechanism to enforce its declaration against that parcel, and no mechanism to collect assessments on it. There is no in rem workaround and no property-based exception.
That has an arithmetic consequence for everyone else in the development. Where a declaration allocates common expenses across a fixed number of lots, parcels outside enforcement reach do not simply disappear from the budget — the shortfall sits somewhere, which is the subject of our Wisconsin assessment limits and budget approval pages.
There is also a drafting lesson with wider reach than tribal land. The immunity-waiver clause, the anti-transfer clause and the anti-tax-exemption clause were all bespoke provisions bolted onto the covenants to reach a party the association anticipated. None of them worked, because a covenant binds through the chain of title and a party outside that chain is outside the covenant.
What to watch next
The federal track ran ahead of the state one and came out the same way: the Interior Board of Indian Appeals and the Eastern District of Wisconsin had already addressed the association's challenge to the trust acquisition, as ¶10 records. With immunity resolved and the trust acquisition upheld, the association's remaining options are legislative or negotiated rather than judicial. Watch for whether any Wisconsin association attempts a services agreement with a tribe in place of covenant enforcement — a consensual contract is the one route C&L Enterprises, discussed at ¶30, leaves open.
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