Lac Courte Oreilles Band of Indians v. Wisconsin

• Decision Date: 09 May 1990
• Docket Number: No. 74-C-313-C.,74-C-313-C.
• Citation: 740 F. Supp. 1400
• Parties: 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; Lac Du Flambeau Band of Lake Superior Chippewa Indians, Plaintiffs, v. STATE OF WISCONSIN, Wisconsin Natural Resources Board, Carroll D. Besadny, James Huntoon, and George Meyer, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

740 F. Supp. 1400

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; Lac Du Flambeau Band of Lake Superior Chippewa Indians, Plaintiffs, v. STATE OF WISCONSIN, Wisconsin Natural Resources Board, Carroll D. Besadny, James Huntoon, and George Meyer, Defendants.

No. 74-C-313-C.

United States District Court, W.D. Wisconsin.

May 9, 1990.

Tracey Schwalbe, Hayward, Wis., for Lac Courte Oreilles.

Howard Bichler, St. Croix Tribal Council, Hertel, Wis., for St. Croix Chippewa Indians.

Joseph L. Young, Tribal Atty., Lac Du Flambeau Band, Lac Du Flambeau, Wis., for Lac Du Flambeau Band.

Earl Charlton, Milwaukee, Wis., for Mole Lake Band.

Milton Rosenberg, Madison, Wis., for Red Cliff Band.

David J. Siegler, Odanah, Wis., for Bad River Band.

James L. Beck, Wisconsin Judicare Inc., Wausau, Wis., for Wisconsin Judicare Incorp.

P. Scott Hassett, Madison, Wis., for amicus plaintiff.

Thomas L. Dosch, Asst. Atty. Gen., Philip Peterson, Asst. Atty. Gen., Madison, Wis., for State of Wis.

OPINION and ORDER

CRABB, Chief Judge.

This case is before the court for a determination of certain disputed issues relating to plaintiffs' off-reservation hunting of white-tailed deer, fisher and other furbearing animals, and small game within the area of the state ceded to the United States by the plaintiff tribes. Deer hunting was the subject of a trial held in August 1989. The hunting of the other animals is the subject of stipulated facts submitted by the parties.

In this phase of the litigation, which has focused on the regulation of the harvesting of specific species, the parties have drafted separate regulatory codes governing the harvests. Plaintiffs' proposed code is set out in the Great Lakes Indian Fish and Wildlife Commission (GLIFWC) Model Off-Reservation Conservation Code; defendants' proposals are contained in Chapter NR 13 Wis.Admin.Code, Regulation of Chippewa Treaty Rights Participants. To a great extent the parties have been able to resolve the differences between the two proposals and have asked for judicial resolution of only a few matters. For example, they have resolved all of the issues governing the harvesting of wild rice and many of the differences between them relating to the harvesting of walleye and muskellunge.

With respect to deer, the parties have also resolved many of the differences in their regulatory approaches. Plaintiffs acknowledge the biological soundness of the state's deer management program and agree that it should operate as the primary management program. They agree that state health regulations will be enforced against members of the plaintiff tribes until such time as the tribes adopt adequate regulations of their own. They will add certain state law provisions to their own regulations prohibiting the carrying of loaded and uncased firearms in vehicles, prohibiting hunting from, on, or across any public road, prohibiting hunting one-half hour before sunrise and after sunset, prohibiting hunting unless the hunter is at least twelve years old and is accompanied by a parent or guardian, and requiring hunters born after January 1, 1977, to complete a hunter education and firearm safety course.

For their part, defendants recognize tribal representation on department committees established to manage deer in the ceded territory. They acknowledge the adequacy of the tribal court system and certain tribal regulations set out in the GLIFWC Model Off-Reservation Conservation Code, draft 5/30/89, provided each plaintiff tribe adopts regulations identical in scope and content to those in the model code. Also, defendants acknowledge plaintiffs' right to harvest deer for ceremonial or religious purposes and have reached a stipulation with plaintiffs concerning regulations to be adopted by plaintiffs governing such harvesting.

Prior to trial plaintiffs indicated that a dispute existed over their right to kill albino deer. However, defendants put in no evidence of any conservation or public safety reason for restricting the killing of albino deer, and have made no reference to the issue in their briefs or proposed findings of fact. I conclude it is not disputed and will not consider it in this opinion.

As to fisher, other furbearers and small game, the parties have stipulated to all of the material facts and have agreed on an enforcement scheme that recognizes plaintiffs' capability to enforce a code such as plaintiffs' Model Off-Reservation Conservation Code but acknowledges plaintiffs' present inability to provide exclusive enforcement of the code and the need for cooperative enforcement by agents of the State of Wisconsin Department of Natural Resources. Defendants agree that the plaintiffs' harvesting rights apply to all natural navigable lakes and to the beds of streams, rivers and flowages owned by the state or its political subdivisions, excluding the Wisconsin-Minnesota boundary waters and Lake Superior.

The parties agree that the Wisconsin Department of Natural Resources procedures for determining the harvestable number of fisher in each fisher management zone shall continue to be used to determine the harvest of fisher. Defendants agree to recognize a tribal representative as an official member of all committees advising the Department of Natural Resources Bureau of Wildlife Management on small game and small game range in the ceded territory. Plaintiffs have agreed to make a number of modifications in their Model Code regarding the hunting of furbearers and small game.

The only matters remaining in dispute as to deer are the following:

1. Whether there is a need for a judicially-determined allocation of the deer harvest between plaintiffs and non-Indian hunters, and if so, what that allocation should be;

2. Whether plaintiffs may exercise their harvesting rights on private lands within the ceded territory when they are hunting by consent of the landowner;

3. Whether defendants may prohibit plaintiffs from hunting deer during the summer;

4. Whether defendants may prohibit plaintiffs from hunting deer by gun or bow and arrow during the twenty-four hour period immediately preceding the opening of the state deer gun season; and

5. Whether defendants may prohibit plaintiffs from hunting deer at night with a flashlight.

With respect to fisher, other furbearers and small game, the only unresolved issues of law are

1. Whether there is a need for a judicially-determined allocation between Indians and non-Indians of the harvest of fisher and, if so, what that allocation should be;

2. Whether plaintiffs may exercise their treaty rights on private lands within the ceded territory when they are hunting by consent of the landowner;

3. Whether plaintiffs' harvesting rights entitle them to place traps on the beds of flowages and streams regardless of the private riparian's consent.

For the purpose of determining these disputed issues, I make the following findings of fact from the parties' stipulations of fact and from the evidence adduced at the trial on white-tailed deer.

FACTS

A. White-Tailed Deer

1. Biology of the deer resource

The ceded territory contains one species of deer: the white-tailed (Odocoileus Virginianus), which occupies continuously throughout the year approximately 79% of the ceded territory, or 19,075 square miles of the territory's 23,929 square miles. Its range consists of land that has permanent vegetative cover.

White-tailed deer can thrive in a wide variety of habitats. In summer, they range in fields, wetlands and brushy areas, relying on herbaceous vegetation as their primary food source and developing the fat reserves that are important to their winter survival. In spring, they feed on the succulent new growth of sprouting grasses and leaves. From permanent openings in the forest they obtain high-quality, easily digestible grasses and herbaceous vegetation in fall, spring and summer.

In winter, deer range in coniferous vegetation that provides thermal cover and woody browse. They return to their winter range as snow accumulates and tend to congregate in "yards" in dense coniferous stands during the winter months.

Male white-tailed deer produce antlers annually, beginning in their second year. The antlers grow under the skin through the spring and summer. The skin over the antlers, called the "velvet," dries off when the antlers are fully grown and sloughs off by early September.

The deer mating season begins in October and can last through December, with the peak occurring by mid-November. The young are born primarily in May and June. When newly-born, they are unable to move and they remain hidden while their mothers forage for food in order to provide milk. Within three to four days they are able to move around with the mothers, but their primary protection continues to be in remaining motionless, with the white dapples on their backs providing effective camouflage until fall when the fawns lose the dapples and take on the tawny color of adults.

The reproduction rates of white-tailed deer are a function of the breeding female's (doe's) nutrition and age. Maximum reproductive potential is reached between the ages of three and seven years. The number of fawns each doe produces is determined by habitat quality and the severity of the winter during gestation.

Deer weight and antler development are a function of the deer range condition, the age of the animal, and its genetic makeup.

Winter stress is the major cause of over-winter mortality to the white-tailed deer in the ceded territory. Snow restricts movement and cold drains energy reserves, resulting in direct mortality and decreased reproduction. Winter severity also increases intra-uterine mortality during the winter and neonatal mortality during the spring.

Mortality from predators is...