Lac du Flambeau Indians v. Stop Treaty Abuse-Wis., Inc.

• Decision Date: 15 March 1991
• Docket Number: No. 91-C-117-C.,91-C-117-C.
• Citation: 759 F. Supp. 1339
• 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, Al Soik, Elaine Soik, Wayne Pieper, Tommy Handrick, Glen Handrick, Howard Caputo, Charles Ahlborn, Mike Ahlborn, Jack Lanta, Rose Lanta, Lois Pavlovich, Charles Gilman, Brian Crist, Patrick Long, David Worthen, James Williquette, David Enblom, Wayne Wirsing, and Unknown John Does and Jane Roes, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

759 F. Supp. 1339

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, Al Soik, Elaine Soik, Wayne Pieper, Tommy Handrick, Glen Handrick, Howard Caputo, Charles Ahlborn, Mike Ahlborn, Jack Lanta, Rose Lanta, Lois Pavlovich, Charles Gilman, Brian Crist, Patrick Long, David Worthen, James Williquette, David Enblom, Wayne Wirsing, and Unknown John Does and Jane Roes, Defendants.

No. 91-C-117-C.

United States District Court, W.D. Wisconsin.

March 15, 1991.

COPYRIGHT MATERIAL OMITTED

Brian L. Pierson and Irvin B. Charne, Charne, Clancy & Taitelman S.C., Milwaukee, Wis., for Lac du Flambeau Band, Michael Allen, Wa-swa-gon Treaty Ass'n, Thomas Maulson, Robert Martin, Nick Hockings and Gilbert Chapman.

Richard E. Sommer, Sommer, Olk & Schroder, Rhinelander, Wis., for Stop Treaty Abuse-Wisconsin, Inc., Dean Crist, Wayne Pieper, Tommy Handrick, Glen Handrick, Howard Caputo, Charles Ahlborn, Jack Lanta, Rose Lanta, Lois Pavlovich, Charles Gilman, Brian Crist, Patrick Long, David Worthen and Mike Ahlborn.

Ted Waskowski, Madison, Wis., for Al Soik and Elaine Soik.

Charles H. Bohl, Frisch Dudek, Ltd., Milwaukee, Wis., for James Williquette, David Enblom and Wayne Wirsing.

OPINION AND ORDER

CRABB, Chief Judge.

Plaintiffs are seeking a preliminary injunction against defendants to prevent them from interfering with plaintiffs' exercise of their treaty-guaranteed right to spear walleye. A hearing on the motion was held on March 7, 1991.

Plaintiffs contend that defendants Enblom, Wirsing and Williquette, the sheriffs of Ashland, Price and Vilas Counties, have conspired with the other defendants to deny plaintiffs their treaty-guaranteed rights, and that the remaining defendants have waged a racially-motivated campaign of violence and intimidation against plaintiffs in an effort to make it difficult or impossible for them to spear fish. Plaintiffs seek an order of this court prohibiting the private defendants (1) from assaulting or battering any member of the Lac du Flambeau band or any family member or friend of any member of the band at any landing or on any lake or en route to or from any lake within the ceded territory; (2) from approaching within 250 feet of any member of the Lac du Flambeau band or any relative or friend of any member at any boat landing; (3) from approaching within 250 feet of any landing area, except to launch or land boats; (4) from intentionally creating wakes to interfere with any spearer; (5) from intentionally blocking plaintiffs' ingress or egress at any boat landing; (6) on any waterway, from approaching within 500 feet of any boat carrying any member of the Lac du Flambeau band; (7) from planting decoys or otherwise sabotaging plaintiffs' exercise of their treaty rights; and (8) from intentionally interfering by any means with any Lac du Flambeau member's exercise of treaty rights. Also, plaintiffs seek an order requiring the defendant sheriffs to enforce the injunction entered against the private defendants; provide protected areas at boat landings for members of the Lac du Flambeau band, their families and friends, giving them unrestricted access to their spearing boats and gear; reserve an adequate number of protected parking spaces at boat landing parking lots for members of the Lac du Flambeau band; assure convenient and unimpeded access to landings and to waterways to members of the Lac du Flambeau band, including, where necessary, giving priority to tribal members over protesters in the launching and landing of boats; and confine protesters to an area at least 250 feet from the landing.

For the purpose only of deciding this motion, I make the following findings of fact from the evidence adduced at the hearing and from the parties' affidavits.

FACTS

The Lake Superior Chippewa Indians are a tribe recognized by the United States government. In 1837 and 1842, the tribe entered into treaties with the United States under which they gave up hundreds of thousands of acres of land in what is now Wisconsin but reserved their right to hunt, fish and gather food in the territory they had ceded. Pursuant to the treaties, members of the plaintiff Lac du Flambeau band have a treaty-guaranteed right to fish off the reservation.

Plaintiff Michael Allen is chairman of the Lac du Flambeau band and as such 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 exercise of off-reservation treaty-recognized fishing rights.

Plaintiffs Thomas Maulson, Robert Martin, Nick Hockings and Gilbert Chapman are Wisconsin citizens and members of the Lac du Flambeau band residing on the Lac du Flambeau reservation.

Defendant James Williquette is a resident of Wisconsin and the sheriff of Vilas County. Defendant David Enblom is a resident of Wisconsin and the sheriff of Ashland County. Defendant Wayne Wirsing is a resident of Wisconsin and the sheriff of Price County.

The remaining defendants I will refer to as the "private defendants." They include defendant Stop Treaty Abuse-Wisconsin, Inc. (STA), which is a for-profit corporation organized under the laws of the State of Wisconsin with its principal place of business in Woodruff, Wisconsin, and defendants Dean Crist, Al Soik, Elaine Soik, Wayne Pieper, Tommy Handrick, Glen Handrick, Howard Caputo, Charles Ahlborn, Mike Ahlborn, Jack Lanta, Rose Lanta, Lois Pavlovich, Charles Gilman, Brian Crist, Patrick Long and David Worthen, all of whom are residents of Wisconsin and agents of STA.

The walleye spearing season begins in April or May, shortly after the ice breaks up and the lakes open and the fish come up out of the depths of the lake to spawn in the shallow water near the shore. The season lasts about fifteen days and is open only to members of the Lake Superior Chippewa. State law prohibits open water spearing by non-Indians.

Spearers fish after dark when the fish have moved onto the spawning beds. They spear from a standing position in the front of a slowly moving shallow draft boat, using a ten foot long metal spear. Light is provided by a large lamp mounted on the spearer's headgear.

Spearing is an important part of the cultural and religious heritage of the Chippewa. The fish that plaintiffs and other tribal spearers take are an important source of food for the spearers and for others in the tribe who are needy and unable to fish.

Plaintiffs Maulson, Martin, Hockings and Chapman have been spearers since childhood and have been exercising their right to spear off the reservation since the courts confirmed that the Chippewa retained this right. When they and other tribal members began exercising their off-reservation fishing rights, they met with little opposition. Beginning in 1986 and 1987, however, more and more people began to demonstrate against spearing at the boat landings on lakes where spearing was taking place, and local police and sheriffs found it difficult to control the demonstrations.

At the request of local law enforcement officers, work was begun on a plan to provide assistance to the counties in keeping peace during the spearing season. Local police chiefs and county sheriffs' officials from about eighteen northern Wisconsin counties formed a working group with representatives of the Governor's Office, the Wisconsin State Patrol, the Department of Military Affairs, the Division of Criminal Investigation of the Department of Justice, the Department of Natural Resources and the Division of Emergency Government for the State of Wisconsin. The working group did not include any representatives of the Chippewa.

Under the plan developed by the working group, primary responsibility for peace keeping and law enforcement at the boat landings rests with the sheriff of each county. Department of Natural Resources conservation wardens have exclusive jurisdiction over the lakes and on-water law enforcement. The sheriff and the wardens are assisted by the mutual aid force, which includes police officers and sheriffs' deputies from up to eighteen different counties whose vacated positions are staffed by state patrol officers. Department of Criminal Investigation officials observe the boat landings and gather information for use by other law enforcement officers. The Department of Military Affairs provides housing, food, generators, lights and other supplies and support. The Division of Emergency Government provides general coordination of all of the agencies and acts as a resource agency and clearinghouse for intelligence-gathering and dissemination of information and recommendations to the Governor and the Wisconsin Department of Administration. A centralized communication or field command post is staffed for the spearing season by representatives of each of the law enforcement agencies.

Under the plan, the tribes advise the Department of Natural Resources representative at the command post by noon each day of the lakes they intend to spear that night. The command post then coordinates the dispersion of law enforcement personnel and equipment to the boat landings at the designated lakes.

At each landing, officers set up lighting and mark off with snow fences and barrier tapes areas around the landing for boat launching, enforcement personnel, official vehicle parking and the press. All spectators, Indian or non-Indian, must remain behind the fenced-off areas while boaters and spearers use the landing. Representatives of the Great Lakes Indian Fish and Wildlife Commission are permitted in the protected area when they are performing official duties, such as weighing and measuring the walleye catch. Department of Natural Resources wardens are permitted in the protected area at all times, although they are primarily in boats out on the water.

The Bureau of...