LAC DU FLAMBEAU INDIANS v. Stop Treaty Abuse

• Decision Date: 07 February 1994
• Docket Number: No. 91-C-117-C.,91-C-117-C.
• Citation: 843 F. Supp. 1284
• 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, v. STOP TREATY ABUSE-WISCONSIN, INC., and Dean Crist, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

843 F. Supp. 1284

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, v. STOP TREATY ABUSE-WISCONSIN, INC., and Dean Crist, Defendants.

No. 91-C-117-C.

United States District Court, W.D. Wisconsin.

February 7, 1994.

Brian L. Pierson, Irvin B. Charne, Hall, First & Patterson, S.C., Milwaukee, WI, for Lac du Flambeau Band, Michael Allen, Wa-Swa-Gon Treaty Ass'n, Thomas Maulson, Robert Martin, Nick Hockings, Gilbert Chapman.

Richard E. Sommer, Sommer, Olk & Schroder, Rhinelander, WI, for Stop Treaty Abuse-Wisconsin, Inc., Dean Crist.

Al Soik, pro se.

Elaine Soik, pro se.

Frederick E. Hatch, Sayner, WI, for Wayne Pieper, Glen Handrick, Howard Caputo, Jack Lanta, Rose Lanta, Lois Pavlovich, Patrick Long, David Worthen and Mike Ahlborn.

Tommy Handrick, pro se.

Charles Ahlborn, pro se.

Steven Garbowicz, Drager, O'Brien, Anderson, Burgy & Garbowicz, Eagle River, WI, for Charles Gilman.

Brian Crist, pro se.

Charles H. Bohl, Milwaukee, WI, for James Williquette, David Endblom and Wayne Wirsing.

OPINION and ORDER

CRABB, Chief Judge.

In this civil action, plaintiffs are seeking a permanent injunction restraining defendants from interfering with plaintiffs' exercise of their treaty-preserved rights to hunt, fish and gather in the area of northern Wisconsin ceded to the United States by the Lake Superior Chippewa Indians in 1837 and 1842. Plaintiffs allege violations of these rights under 42 U.S.C. §§ 1982, 1985(3) and 1986 and under state law. In an opinion entered on January 6, 1992, I granted plaintiffs' motion for permanent injunctive relief after finding that defendants had interfered with § 1982's guarantee that all citizens are to enjoy the same rights enjoyed by white citizens to "inherit, purchase, lease, sell, hold and convey real and personal property" when they interfered with plaintiffs' exercise of their right to spear fish by such acts as battering and assaulting the Indian spearers, causing wakes on the water that endangered the spearers, blocking the spearers' access to the waterfront, preventing the spearers from launching their spearing boats, impeding the movement of spearing boats and shining lights into the eyes of the spearers. From the record, which was replete with examples of racial epithets and stereotyped characterizations of Indians, I was satisfied that plaintiffs had shown that defendants' acts were motivated by racial bias toward Indians and that their protestations to the contrary were insufficient as a matter of law to overcome the showing of racial bias. Accordingly, I granted plaintiffs' motion for summary judgment and entered a permanent injunction against defendants' interference with plaintiffs' exercise of their right to spear fish. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc, 781 F.Supp. 1385 (W.D.Wis. 1992). A separate judgment for fees and costs was entered on July 17, 1992 in favor of the Lac du Flambeau band as a prevailing party pursuant to 42 U.S.C. § 1988. On appeal, the Court of Appeals for the Seventh Circuit reversed the grant of summary judgment, vacated the judgment for fees and costs, and remanded the case for trial, holding that the motivation for the interference with plaintiffs' spearfishing was a disputed issue of material fact that could not be resolved on summary judgment. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, Inc., 991 F.2d 1249 (7th Cir.1993).

From the evidence adduced at the bench trial held in conformance with the court of appeals' directive, I find that defendants' interference with plaintiffs' spearfishing was racially motivated, that is, it would not have occurred but for the racial animus of defendants and their followers.

From the undisputed facts of record and from the evidence adduced at trial, I find the following facts.

FACTS

The Parties

Plaintiff Lac du Flambeau band is a band of the Lake Superior Chippewa, a federally-recognized tribe. In 1837 and 1842 the tribe entered into treaties with the United States ceding huge tracts of land in northern Wisconsin, Michigan and Minnesota to the government while reserving the right to hunt, fish and gather throughout the ceded territory. Plaintiff Michael Allen is president of the Lac du Flambeau band. Plaintiff Wa-Swa-Gon Treaty Association is an unincorporated association consisting of members of the Lac du Flambeau band and others. It supports the tribe's exercise of off-reservation treaty fishing rights. Plaintiffs Tom Maulson, Nick Hockings, Robert Martin and Gilbert Chapman are members of the band who reside on the Lac du Flambeau reservation and wish to engage in off-reservation treaty-protected fishing in the ceded territory without unlawful interference.

Defendant Stop Treaty Abuse-Wisconsin, Inc. is a for-profit corporation organized under the laws of the state of Wisconsin, with its principal place of business in Woodruff, Wisconsin. Its avowed purpose is to stop tribal members from exercising their off-reservation treaty rights including their rights to spear and net fish. Defendant Dean Crist is a member and co-founder of STA and its chief spokesperson.

Defendant Crist, a resident of Minocqua, Wisconsin, works as a consultant for Alexander's Pizza, Inc., a restaurant he founded. He was born in Blue Island, Illinois in 1948. He attended racially integrated schools when he was growing up and worked as a camp counselor in multi-racial summer camps for children during the 1960's. He has enjoyed sport fishing since he was a young child. In college, he took courses in fisheries management and intended to go to graduate school to continue those studies but was unable to obtain financial assistance. He moved to Minocqua in 1972 and opened Alexander's Pizza, Inc. He has hired Indians as employees in his restaurant.

Defendant Crist moved to northern Wisconsin in large part because of the fishing opportunities there. In his opinion, spearing and netting have had a detrimental effect on the inland lakes' populations of game fish although he admits that it may be "a buried detriment because nobody knows all of the effects of the spearing as it is currently practiced." He has seen the bag limits for walleye and muskie for sports fishermen decrease since 1983 and believes that the economic health of the community is correlated directly to the quality of sport fishing in the region.

Spearing

Under the applicable treaties, the Lake Superior Chippewa have the right to catch fish by spearing and netting. State law prohibits all other persons from engaging in such activity on any inland lakes, except that non-Chippewas may net buffalo fish and carp on a few very large inland lakes and may engage in winter ice spearing of sturgeon on Lake Winnebago. Chippewa spearing and netting are carefully regulated and monitored by wardens from both the Wisconsin Department of Natural Resources and the Great Lakes Indian Fish and Wildlife Commission, an inter-tribal, interstate organization. For example, spearers are required to obtain a permit for spearing, which is good for only one night and can be obtained only on the day the spearing is to take place.

The majority of Chippewa spearing occurs in the early spring. It begins as soon as the ice thaws from the lakes and lasts as long as spawning is taking place: usually between one to two weeks on any particular lake for walleye and an additional one to two weeks thereafter for muskellunge. To spear the fish, tribal spearers stand in small boats or canoes and use a long metal five-tine spear. Because spearing begins at twilight and continues on into the night, the spearer usually wears a large miner's type hat with a light attached to illuminate the shallow water below him. A spearer standing in a small boat in the dark in the early spring is vulnerable to falling into the icy water if the lake becomes rough or the boat is subjected to high wakes created by motorboats passing near the boat.

The spearers launch their boats from the boat landings at the lakes where they intend to spear. Boat landings are state or county-owned areas set aside for public boat launching. Some landings include vehicle parking areas, but many landings are too small for parking and consist of little more than a small open space among the trees.

Before spearing, it is common for the Chippewa to hold a traditional ceremony involving prayers and the placing of a tobacco or "asema" offering into the water.

Defendant Crist's and STA's Operation

STA was formed at the end of the spring spearing season in 1988. During the following winter, articles of incorporation were drawn up and board meetings were held. The first general meetings took place in the spring of 1989. At that time, a "couple hundred" persons had joined, each paying a ten dollar membership fee. At first the board intended to use the money to intervene in the ongoing litigation between the state of Wisconsin and the Chippewa. When that proved impossible, the board decided to organize protests at the landings. It was important to STA and to Crist to get as many people as possible to the landings. Defendant Crist believes that STA was responsible for bringing large crowds of protesters to the landings.

Persons who wanted to know where STA would be protesting on a given night could call defendant Crist's restaurant to be directed to a particular boat landing. Generally, defendant Crist would organize protests at the landings where he believed members of the plaintiff band planned to spear. His goal was to reduce the walleye harvest of the tribal members; to that end, he urged persons to come to the landings, to crowd the landing area and to protest the spearing. Also, he organized on-water flotillas of motorboats to crowd the launch area, making it difficult for spearers to launch their boats,...