Lac Du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc.

• Decision Date: 26 April 1993
• Docket Number: ABUSE-WISCONSI,INC,Nos. 92-1315,92-2672,s. 92-1315
• Citation: 991 F.2d 1249
• Parties: LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, Michael Allen, Wa-Swa-Gon Treaty Association, Thomas Maulson, Robert Martin, Nick Hockings, and Gilbert Chapman, Plaintiffs-Appellees, v. STOP TREATY, and Dean Crist, Defendants-Appellants. 1 .
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1249

991 F.2d 1249

LAC du FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS,

Michael Allen, Wa-Swa-Gon Treaty Association,

Thomas Maulson, Robert Martin, Nick

Hockings, and Gilbert Chapman, Plaintiffs-Appellees, v. STOP TREATY ABUSE-WISCONSIN, INC., and Dean Crist,

Defendants-Appellants.

Nos. 92-1315, 92-2672 ¹.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 11, 1992.

Decided April 14, 1993.

As Corrected April 26, 1993.

Brian L. Pierson (argued), Hall, First & Patterson, Milwaukee, WI, Kathryn L. Tierney, Lac du Flambeau, WI, for plaintiffs-appellees.

William A. Schroeder (argued), Richard E. Sommer, Sommer, Olk, Schroeder & Payant, Rhinelander, WI, for defendants-appellants.

Before BAUER, Chief Judge, MANION, Circuit Judge, and MOODY, District Judge. ²

MOODY, District Judge.

In this consolidated appeal, Dean Crist and Stop Treaty Abuse-Wisconsin, Inc. ("STA") appeal from the district court's judgment granting permanent injunctive relief to plaintiffs-appellees on a claim under 42 U.S.C. § 1982, and entry of judgment for fees and costs to plaintiffs-appellees pursuant to 42 U.S.C. § 1988. They also seek reversal of several interlocutory decisions made by the district court. We affirm the interlocutory decisions, but find the district court erred in granting summary judgment when it resolved a disputed issue of material fact against STA and Crist--whether STA and Crist's harassment of plaintiffs-appellees was racially-motivated. Thus, we reverse the district court's order granting summary judgment, vacate both final judgments, and remand for further proceedings consistent with this opinion. On remand, the preliminary injunction that was granted by the district court is reinstated.

I. FACTS

The Lac du Flambeau Band of Lake Superior Chippewa Indians ("LDF") is one of the several Chippewa bands which possess treaty-retained usufructuary rights to engage in off-reservation hunting, fishing, trapping and gathering on public lands in the northern third of Wisconsin. The existence and exercise of these usufructuary rights has been controversial. Another panel of this court affirmed the present vitality of the treaties and concomitant ability of the Chippewa to exercise the rights in Lac Courte Oreilles v. Voigt, 700 F.2d 341, appeal dismissed and cert. denied sub nom. Besadny v. Lac Courte Oreilles, 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983). In the present case plaintiffs-appellees seek to enjoin interference with their exercise of fishing rights. Plaintiffs-appellees are the LDF, suing on behalf of all of its members, the LDF's president, a treaty support group and four individual LDF members who engage in off-reservation fishing. ³

Dean Crist is a Wisconsin resident who believes, to put it mildly, that we decided Voigt wrongly. He is concerned mainly with the right of the Chippewa to take fish by spear and by net: highly efficient fishing methods prohibited by law for all other anglers. According to Crist, at the time the treaties were entered into, the Chippewa used primitive equipment to spear fish: hand-paddled birchbark canoes, fragile, hand-carved wooden spears and flaming torches. This made the harvest of fish difficult, and the number taken few. Now, aluminum fishing boats powered by outboard motors are used. Sealed beam automobile headlamps carried in the boats provide illumination, and metal-tined spears minimize lost time due to breakage.

These modern conveniences, unknown when the treaties were formed, make the treaties invalid, Crist believes, or are at least a reason why the treaties should be abrogated. Crist's beliefs are explained at length in a pamphlet he authored for STA entitled "Wisconsin's Treaty Problems--What Are The Issues?" The pamphlet also serves to explain in part STA's corporate purpose.

STA is a for-profit Wisconsin corporation formed by Crist and others who share his disgust with the Voigt decision and object to treaty rights, especially spearing. Crist occupies the position of "spokesman" in the STA organizational structure. ⁴ STA encourages "boat landing protests" at off-reservation sites where LDF members spear. According to the STA pamphlet written by Crist, the protests are for the purpose of "send[ing] the message to Madison and Washington, D.C. that we need the treaty problems in Northern Wisconsin resolved." Crist engages in activities, which STA encourages, to "save fish" by interfering with the LDF's spearing. The line separating protesting from saving fish is imperceptible.

The protesting/fish saving which caused the LDF to seek an injunction has not been peaceful. Protestors, some of whom are associated with STA but many of whom are perhaps not, ⁵ have harassed the LDF to make spearing unpleasant, dangerous and/or impossible. The district court's order granting summary judgment provides a comprehensive description of the harassment. Lac du Flambeau v. Stop Treaty Abuse-Wisconsin, Inc., 781 F.Supp. 1385 (W.D.Wis.1992). In brief, the protestors blew steel whistles (obtainable in a "protest kit" sold by STA) directly into the ears of LDF spearers and their accompanying family members and friends. The protestors crowded landings to make launching boats difficult, and, for the same purpose, formed flotillas of boats around the landings. They operated their boats in a manner intended to create wakes so that LDF members could not stand in their boats to spear. STA sponsored a contest to encourage production of concrete fish decoys which could be used to cause damage to the metal spears. On occasion, rocks were thrown at the spearers.

Not satisfied merely with physically interfering with the spearing, the protestors also injected racism into the harassment. They hurled vile racial insults, such as "timbernigger" and "welfare Indian" at the spearers, chanted "hi-how-are-ya" to the beat of tom-toms and engaged in other mockery of Indian culture and tradition. The STA pamphlet authored by Crist contains bigoted racial stereotypes; for example, that each year "thousands" of fish caught by the spearers spoil because of "the lack of ambition to clean them." At a STA-sponsored rally, the speaker's podium featured an unflattering caricature of an Indian.

II. PROCEEDINGS BELOW

On February 1, 1991 the LDF filed suit seeking a permanent injunction to stop STA's interference with LDF fishing, asserting claims under 42 U.S.C. §§ 1982, 1983, 1985(3), 1986 and pendent state claims under Wis.Stat. §§ 844.01, 29.223 and 813.125. No damages were sought, only injunctive relief. The LDF also moved for a preliminary injunction when the complaint was filed.

On March 4 STA moved that the district judge disqualify herself due to prior involvement in the Voigt litigation and requested a jury trial. The judge heard the motion for disqualification on March 5, orally denied it at the hearing, and entered a written order of denial on March 6. On March 7 the judge conducted a hearing on the LDF's motion for a preliminary injunction. On March 15 the preliminary injunction was granted. Lac du Flambeau v. Stop Treaty Abuse-Wisconsin, Inc., 759 F.Supp. 1339 (W.D.Wis.1991). ⁶ STA did not appeal from the preliminary injunction.

On October 2 STA moved to amend its answer to assert a new defense. On October 15 the LDF moved for summary judgment on each of its claims. On October 31 the judge conducted a motion hearing and denied STA's motion to amend and earlier request for a jury trial. STA's request for additional time to file a responsive brief to the LDF's motion for summary judgment was granted.

Despite the additional time, after briefing on the motion was complete, STA on December 2 sought leave to file a supplemental response to the motion for summary judgment. The LDF moved to strike the supplemental response. On December 24 STA again sought leave to amend its answer, this time to include the additional defense raised in the supplemental response as well as the defense raised in the previously-denied motion to amend.

In an order dated January 6, 1992 the district judge granted the motion to strike the supplemental brief, denied the motion for leave to amend, granted summary judgment on the LDF's § 1982 claim, and ordered entry of final judgment granting permanent injunctive relief. 781 F.Supp. at 1395. Because the district court was able to grant complete relief by deciding only the § 1982 cause, the other LDF claims were dismissed. On January 27, 1992 a final judgment permanently enjoining STA from interfering with the LDF's exercise of fishing rights was entered, with terms identical to the preliminary injunction. 781 F.Supp. at 1395-96. A separate judgment for fees and costs was entered on July 17, 1992 in favor of the LDF as a prevailing party pursuant to 42 U.S.C. § 1988.

III. ANALYSIS

STA argues that several interlocutory decisions made by the district court were erroneous and require reversal, as does the district court's order granting summary judgment, making it necessary to vacate the final judgments entered against STA. The issues raised are: 1) whether the district court abused its discretion in denying STA's request for a jury trial, 2) whether the district court abused its discretion in denying STA's motion for disqualification, 3) whether the district court abused its discretion in refusing to allow STA leave to file an amended answer and supplemental response to the LDF's summary judgment motion, 4) whether usufructuary fishing rights are "property" within the meaning of that term under § 1982, 5) whether affidavits filed in support of the LDF motion were so deficient as to preclude a grant of summary judgment, 6) whether the district court's holding impermissibly restricts speech, in violation of first amendment (as explained below, a somewhat incomprehensible argument), 7) whether disputed issues of material fact precluded summary judgment, and 8) whether the LDF is a "prevailing party" entitled to attorneys' fees or whether the cost and fees...