Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin
Filing
413
AMENDED FINAL JUDGMENT. (PAO) Signed by District Judge Barbara B. Crabb on 10/28/2015. (jls)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
LAC COURTE OREILLES BAND OF
LAKE SUPERIOR CHIPPEWA
INDIANS; RED CLIFF BAND OF LAKE
SUPERIOR CHIPPEWA INDIANS;
SOKAOGON CHIPPEWA INDIAN
COMMUNITY; MOLE LAKE BAND OF
WISCONSIN; ST. CROIX CHIPPEWA
INDIANS OF WISCONSIN; BAD
RIVER BAND OF THE LAKE
SUPERIOR CHIPPEWA INDIANS; and
LAC DU FLAMBEAU BAND OF LAKE
SUPERIOR CHIPPEWA INDIANS,
AMENDED JUDGMENT
IN A CIVIL CASE
Case No. 74-cv-313-bbc
Plaintiffs,
v.
STATE OF WISCONSIN; WISCONSIN
NATURAL RESOURCES BOARD;
CATHY STEPP; KURT THIEDE; and
TODD SCHALLER,
Defendants,
This action came before the court for consideration with District Judge
Barbara B. Crabb presiding. The issues have been considered and a decision has been
rendered.
IT IS ORDERED AND ADJUDGED that judgment is entered as follows:
The usufructuary rights retained by plaintiffs as a consequence of the treaties
they entered into with the United States of America in 1837 and 1842 include rights
Judgment in a Civil Case
Page2
to those forms of animal life, fish, vegetation and so on that they utilized at treaty
time, set forth in the facts sections of the opinions entered herein on February 18,
198 7 and February 21, 1991. Also, plaintiffs have the right to use all of the methods
of harvesting employed in the treaty times and those developed since. Plaintiffs'
retained usufructuary rights do not include the right to harvest commercial timber.
They do include the right to gather miscellaneous forest products, namely, such items
as firewood, tree bark, maple sap, lodge poles, boughs and marsh hay.
The fruits of the plaintiffs' exercise of their usufructuary rights may be traded
and sold to non-Indians, employing modern methods of distribution and sale, as set
forth in the opinion entered on February 18, 1987.
The usufructuary rights reserved by the plaintiffs in 183 7 and 1842 have been
terminated as to all portions of the ceded territory that are privately owned as of the
times of the contemplated or actual attempted exercise of those rights.
Plaintiffs' modest living needs cannot be met from the present available
harvest even if plaintiffs were physically capable of harvesting, gathering and
processing it. The standard of a modest living does not provide a practical way to
determine the plaintiffs' share of the harvest potential of the ceded territory.
The state defendants will continue to bear the responsibility and authority for
the management of all of the natural resources of the state except as provided herein.
Defendants are enjoined from interfering in the regulation of plaintiffs' offreservation usufructuary rights to harvest walleye and muskellunge within the ceded
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Page3
territory in Wisconsin, except insofar as plaintiffs have agreed to such regulation by
stipulation.
Regulation of plaintiffs' off-reservation usufructuary rights to harvest
walleye and muskellunge within the ceded territory is reserved to plaintiffs on the
condition that they enact and keep in force a management plan that provides for the
regulation of their members in accordance with biologically sound principles
necessary for the conservation of the species being harvested, as set out in the opinion
entered herein on March 3, 1989, as amended on April 28, 1989. The efficient gear
safe harvest level shall be determined by the methods described in the opinion and
order of this court of March 3, 1989, as supplemented and amended by proceedings
in court on March 28, 1989, the court's order of March 30, 1989 (R. 996) and the
court's order of April 28, 1989. In the event of a dispute in determining the safe
harvest level for any lake that cannot be resolved by the parties, the determination
shall be made by the Department of Natural Resources.
Defendants are enjoined from interfering in the regulation of plaintiffs'
hunting and trapping on public lands within the ceded territory in Wisconsin, except
insofar as plaintiffs have agreed to such regulation by stipulation, on the condition
that plaintiffs enact and keep in force an effective plan of self-regulation that
conforms to the orders of the court.
All of the harvestable natural resources to which plaintiffs retain a usufructuary
right are declared to be apportioned equally between the plaintiffs and all other
persons, with such apportionment applying to each species and to each harvesting
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unit with limited exceptions as set forth in the order entered herein on May 9, 1990;
and upon the condition that no portion of the harvestable resources may be
exempted from the apportionable harvest.
With respect to miscellaneous forest
products, the total estimated harvest is to be apportioned equally between the
plaintiffs and all other persons, with such apportionment applying to each type of
miscellaneous forest product and to each state or county forest unit or state property
on which the gathering of miscellaneous forest products is permitted.
The defendants and intervening defendants may regulate the plaintiffs
gathering of miscellaneous forest products through the application of Wis. Admin.
Code§ NR 13.54 and Proposed County Regulation Section 5.
Defendants are enjoined from enforcing those portions of § NR 13.23(2)(f)
and § NR 13.32(r)(2)(b) that include a percentage of "public land" as an element of
the formulas for determining the maximum tribal antlerless deer quota (in
§ NR 13.32(2)(f)) or the maximum tribal fisher quota (in§ NR 13.32(r)(2)(b)).
Plaintiffs may not exercise their usufructuary rights of hunting and fishing on
private lands, that is, those lands that are held privately and are not enrolled in the
forest cropland or open managed forest lands program under Wis. Stat. ch. 77 at the
time of the contemplated or actual attempted exercise of such rights. Plaintiffs may
not exercise their usufructuary rights of trapping on private lands or those lands that
are enrolled in the forest cropland or open managed forest lands program under
Wis. Stat. ch. 77.
Plaintiffs are subject to state hunting and trapping regulations
Judgment in a Civil Case
when hunting or trapping on private lands.
Page 5
For purposes of plaintiffs' trapping
activities, privately owned stream beds, river bottoms and overflowed lands are
private lands unless and until state law having state-wide effect is changed to allow
such activities.
Defendants may enforce the prohibition on summer deer hunting contained in
§ NR 13.32(2)(e) until such time as plaintiffs adopt a regulation prohibiting all deer
hunting before Labor Day.
Defendants are prohibited from enforcing that portion of § NR 13.32(2)(e)
that bars tribal deer hunting during the twenty-four hour period immediately
preceding the opening of the state deer gun period established in § NR 10. 01 (3 )( e).
Defendants may not enforce the prohibition on the shining of deer by tribal members
contained in § NR 13 .30 ( 1)( q); henceforth, such activity is governed by plaintiffs'
Revised Regulations - Amended (Model Code); Tribal Night Hunting Regulations,
dkt. #405-3, as amended in the order of October 13, 2015.
With respect to the exercise of any of plaintiffs' off-reservation usufructuary
rights not expressly referred to in this judgment, the state may regulate only in the
interest of conservation and in the interest of public health and safety, in accordance
with the applicable standards set forth in the opinion entered herein on August 21,
1987.
The following stipulations by the plaintiffs and defendants and consent decrees
are incorporated into this judgment as though fully set forth herein:
Judgment in a Civil Case
Docket Sheet
Page 6
Subject
Joint Exhibit P- Stipulation as to the Boundaries of the Territory Ceded by the
54 from 12/85 Treaties of 1837 and 1842 (Incorporated into Order of Feb. 23,
Trial
1987, R. 452)
R. 330
Stipulation that the issue of the use of Lake Superior under the
Treaty of 1842 shall not be adjudicated in this case, but is reserved
for litigation at later time.
R. 911
Stipulation on Biological and Certain Remaining Issues in Regard
to the Tribal Harvest of Walleye and Muskellunge (Incorporated
into Order of March 3, 1989, R. 99)
R. 912
Stipulation of Fish Processing in Regard to the Tribal Harvest of
Walleye and Muskellunge (Incorporated into Order of March 3,
1989, R. 991)
R. 913
Stipulation of Gear Identification and Safety marking in regard to
the Tribal Harvest of Walleye and Muskellunge (Incorporated into
Order of March 3, 1989, R. 991)
R. 914
Stipulation on Enforcement and Tribal Court Issues in regard to
the Tribal Harvest of Walleye and Muskellunge (Incorporated into
Order of March 3, 1989, R. 991)
R. 1167
Stipulation in regard to the Tribal Harvest of the White-tailed
Deer on issues related to ~he ( 1) Biology of Deer Management, (2)
Tribal Enforcement and Preemption of State Law, (3) Sale of Deer,
(4) Wild Game Processing, (5) Management Authority, and (6)
Ceremonial Use (Incorporated into Order of May 9, 1990,
R. 1558)
R. 1222
Stipulation and Consent Decree in regard to the Tribal Harvest of
Wild Rice on issues related to the (1) Biology of Wild Rice, (2)
Tribal Enforcement and Preemption of State law, and (3)
Management of Wild Rice
R. 1271
Stipulation of Uncontested Facts relevant to Contested Issues of
Law in Regard to the Tribal Harvest of Furbearers and Small Game
(Incorporated into Order of May 9, 1990, R. 1558)
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R. 1289
Stipulation and Consent Decree (R. 1296) in regard to the Tribal
Harvest of Fisher, Furbearers and Small Game (Incorporated into
Order of May 9, 1990, R. 1558)
R. 1568
Stipulation and Consent Decree (R. 1570) in regard to the Tribal
Harvest of Fish Species Other than Walleye and Muskellunge
R. 1607
Stipulation and Consent Decree in regard to the Tribal Harvest of
(1) Black Bear, Migratory Birds, Wild Plants, and (2)
Miscellaneous Species and Other Regulatory Matters
Except as otherwise specifically provided by the parties' stipulation (R. 1607),
defendants may enforce and prosecute in state courts violations of the state boating
laws in Wis. Stat. ch. 30 and Wis. Admin. Code ch. 5 committed by members of the
plaintiff tribes engaged in treaty activities even if the plaintiff tribes have adopted
identical boating regu!ations for the off-reservation treaty activities of their members.
Plaintiffs' failure to enact an effective plan of self-regulation that conforms
with the orders of the court, or their withdrawal from such a plan after enactment, or
their failure to comply with the provisions of the plan, if established in this court, will
subject them or any one of them to regulation by defendants.
This judgment is binding on the members of the plaintiff tribes as well as on
the plaintiff tribes.
Defendants are immune from liability for money damages for their violations
of plaintiffs' treaty rights.
Plaintiff Lac Courte Oreilles Band of Lake Superior Chippewa Indians is
entitled to actual attorneys' fees and costs for work performed in phase one of this
litigation in the amount of $166, 722.24, which amount has been paid.
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Costs are awarded to plaintiffs and to the defendants and intervening
defendants to the extent they are prevailing parties within the meaning of
Fed. R. Civ. P. 54(d).
This judgment is without prejudice to applications for additional attorneys'
fees for work performed in phase two of the litigation.
The third-party complaint against the third-party defendants United States of
America, William Clark, Secretary of the United States Department of the Interior
and John Fritz, deputy assistant secretary of Indian Affairs, Bureau of Indian Affairs,
is dismissed.
The motion of plaintiff Lac Courte Oreille Band of Lake Superior Chippewa
Indians to join the United States of America as involuntary party plaintiff is denied
as untimely.
Approved as to form this~~~ day of October, 2015.
Barbara B. Crabb
District Judge
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Peter Oppen~er, Clerk of Court ·
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Date
1
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