LAC DU FLAMBEAU INDIANS v. Stop Treaty Abuse-Wis., Inc.

• Decision Date: 06 January 1992
• Docket Number: No. 91-C-117-C.,91-C-117-C.
• Citation: 781 F. Supp. 1385
• Parties: LAC DU FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, Michael Allen, Wa-Swa-Gon Treaty Association, Thomas Maulson, Robert Martin, Nick Hockings, Gilbert Chapman, Plaintiffs, v. STOP TREATY ABUSE-WISCONSIN, INC., Dean Crist, Tommy Handrick, Unknown John Does and Jane Roes, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

781 F. Supp. 1385

LAC DU FLAMBEAU BAND OF LAKE SUPERIOR CHIPPEWA INDIANS, Michael Allen, Wa-Swa-Gon Treaty Association, Thomas Maulson, Robert Martin, Nick Hockings, Gilbert Chapman, Plaintiffs, v. STOP TREATY ABUSE-WISCONSIN, INC., Dean Crist, Tommy Handrick, Unknown John Does and Jane Roes, Defendants.

No. 91-C-117-C.

United States District Court, W.D. Wisconsin.

January 6, 1992.

COPYRIGHT MATERIAL OMITTED

Brian L. Pierson, Charne, Clancy, Krueger & Pollack, Milwaukee, Wis., for plaintiffs.

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

Tommy Handrick, pro se.

OPINION AND ORDER

CRABB, Chief Judge.

This is a civil case for injunctive relief in which plaintiffs seek a permanent injunction preventing the named defendants from interfering intentionally with the exercise of treaty-recognized hunting, fishing and gathering rights by any member of the plaintiff band. A preliminary injunction to this effect has been in place since March 15, 1991. Lac du Flambeau Band of Lake Superior Chippewa Indians v. Stop Treaty-Abuse, Wisconsin, Inc., 759 F.Supp. 1339 (W.D.Wis.1991).

The case is before the court at this time on plaintiffs' motion for summary judgment; on plaintiffs' motion to strike the supplementary brief and affidavit in opposition to the motion for summary judgment filed by defendants Stop Treaty Abuse-Wisconsin, Inc. and Dean Crist; on the motion of defendants Stop Treaty Abuse and Dean Crist for leave to file a second amended answer to assert two additional affirmative defenses; and on plaintiffs' motion to strike the untimely motion for summary judgment filed by the same defendants. I turn first to the motion for leave to file a second amended answer.

At a hearing held on October 31, 1991, I denied a motion by these same defendants to file a first amended answer to add as an affirmative defense the claim that the individual plaintiffs lacked standing to pursue this suit because they are not full-blooded Chippewa. The motion was untimely, and in my view so lacking in merit as to make amendment futile. See Verhein v. South Bend Lathe, Inc., 598 F.2d 1061, 1063 (7th Cir.1979) ("court may deny leave to amend where the proposed amendment fails to allege facts which support a valid theory of liability ... or where the party moving to amend has not shown that the proposed amendment has substantial merit")

In their new motion to amend, defendants Stop Treaty Abuse and Crist (hereafter, defendants) seek to assert the same claim in their proposed amended answer, as well as the claim that the plaintiffs are barred by the doctrine of res judicata from asserting retained rights to hunt, fish and gather in the ceded territories because the Indian Claims Commission ruled definitively on those rights in 1973, 1977 and 1978.

Defendants have shown no reason to reverse the earlier holding that there is no merit to their claim that the individual plaintiffs lack standing to pursue this action because they may lack proof that they are full-blooded Chippewa. The Lac du Flambeau band has treaty-protected usufructuary rights to hunt, fish and gather in the ceded territory. Those rights may be exercised by its members. Who those members are is to be determined by the band under the well-settled law that Indian tribes have the power to regulate their internal and social relations with respect to membership, inheritance and domestic relations, subject to the plenary authority of Congress. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56, 98 S.Ct. 1670, 1675-76, 56 L.Ed.2d 106 (1978). Defendants have no standing to challenge the criteria by which the band determines its membership, and they are not contending that the Lac du Flambeau band does not consider the individual plaintiffs to be members of the band. Therefore, there is nothing to the affirmative defense defendants are seeking to assert.¹

In their proposed amendment defendants contend that the Indian Claims Commission rulings bar the tribes from asserting their usufructuary rights. That claim is out of place in this law suit. The plaintiff tribe's right to hunt, fish and gather in the ceded territory of Wisconsin has been determined in other litigation to which all of the citizens of the State of Wisconsin were party, Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin (Final Judgment), 775 F.Supp. 321 (W.D.Wis.1991). That holding may not be reexamined in this suit. The res judicata effect of the Indian Claims Commission proceedings could have been raised in that suit (and was raised, in connection with the timber subphase of the case, see Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin (Timber), 758 F.Supp. 1262 (W.D.Wis.1991)). Therefore, the ordinary principles of res judicata preclude defendants from litigating in this suit the effect on the earlier suit of the Indian Claims Commission proceedings. See generally 18 Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure, §§ 4401-4478 (1981).

Because there is no merit to either of defendants' proposed affirmative defenses, it would be futile to grant them leave to serve and file their untimely proposed second amended answer. Their motion for such leave will be denied.

I turn next to plaintiffs' motion to strike defendants' supplemental brief and affidavit in opposition to plaintiffs' motion for summary judgment. Plaintiffs' opposition to this brief derives from the same basis as their opposition to defendants' motion to file and serve a second amended answer. In the supplemental brief, defendants argue that the Indian Claims Commission proceedings preclude the plaintiffs from asserting any usufructuary rights in the ceded territory. Because defendants have been denied leave to amend their answer to raise this claim, and because the issue cannot be litigated in this case, defendants' argument has no relevance to any issue in the case and need not be considered. Plaintiffs' motion to strike the supplemental brief and affidavit will be granted.

For the same reasons, plaintiffs' motion to strike the defendants' motion for summary judgment will be granted. The motion is based on the same meritless claims defendants seek to add to their answer.

I turn finally to plaintiffs' motion for summary judgment. For the purpose only of deciding this motion, I find that there is no genuine issue with respect to any of the following material facts.

UNDISPUTED FACTS

The Lake Superior Chippewa are a tribe recognized by the United States. The Chippewa entered into treaties with the United States by which they ceded territory to the federal government, but reserved the right to hunt, fish and gather food.

Plaintiff Michael Allen is president of the Lac du Flambeau band of Lake Superior Chippewa Indians and is its highest elected official. Wa-Swa-Gon Treaty Association is an unincorporated association of members of the Lac du Flambeau band and others. It supports the tribe's exercise of off-reservation treaty-recognized fishing rights. Plaintiffs Tom Maulson, Nick Hockings, Robert Martin and Gilbert Chapman are members of the Lac du Flambeau band who reside on the Lac du Flambeau reservation. As members of the band, they have the right to engage in off-reservation treaty-protected fishing in the ceded territory.

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 at AV 2075 Witches Lake Road, Woodruff, Wisconsin. Defendant Dean Crist is a member and co-founder of Stop Treaty Abuse-Wisconsin, Inc. and a spokesman for it. He resides in Minocqua, Wisconsin. Defendant Tommy Handrick is a resident of Minocqua and has been a member of Stop Treaty Abuse-Wisconsin, Inc. at all relevant times.

The significance of fishing for the Chippewa is religious and cultural as well as economic. Traditional religious rituals and festivals are an important part of Chippewa fishing activities.²

In order to spear walleye, Chippewa spearers wear helmets similar to a miner's, with a lantern attachment, and they carry a ten foot spear. Typically, the spearer will stand in the front of a boat, concentrating all of his attention on the water, which is lighted by his helmet lamp. High wakes interfere with a spearer's ability to spear, and create the danger of his falling into the near-freezing water.³

Stop Treaty Abuse-Wisconsin, Inc. was formed between the 1988 and 1989 walleye spearing seasons. After it became active, protests against Chippewa spearing escalated, crowds increased at the boat landings where spearing was taking place and the practice of creating wakes to interfere with spearing became widespread. Stop Treaty Abuse-Wisconsin encouraged as many people as possible to gather at boat landings and on lakes. The group supported the assembling of boats around launching areas while plaintiffs were trying to launch their boats. At Catfish Lake in 1989, Stop Treaty Abuse members and others encircled the launch area with 35 to 40 protest boats to make it more difficult for Lac du Flambeau to launch their boats.⁴

It was one of Stop Treaty Abuse's objectives to get as many boaters as possible driving back and forth on the lakes in an effort to disturb Lac du Flambeau spearers attempting to exercise their fishing rights. At protests organized by Stop Treaty Abuse-Wisconsin, members and others intentionally created high wakes to interfere with spearers who were attempting to exercise their off-reservation spearing rights.⁵

On at least three occasions in 1989, Stop Treaty Abuse announced it would pay fines for all persons who crossed police lines at launching areas. At Rainbow Flowage in 1989, Stop Treaty Abuse members crossed police lines to occupy the area where the plaintiffs were launching their boats. In May 1989, Stop Treaty Abuse members and others crossed police lines...