State v. Lemieux

Decision Date05 January 1983
Docket Number81-714,Nos. 81-713,s. 81-713
Citation327 N.W.2d 669,110 Wis.2d 158
PartiesSTATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. John LEMIEUX, Defendant-Respondent. STATE of Wisconsin, Plaintiff-Appellant-Petitioner, v. Peter LEMIEUX, Defendant-Respondent.
CourtWisconsin Supreme Court

John D. Niemisto, Asst. Atty. Gen., for plaintiff-appellant-petitioner; Bronson C. La Follette, Atty. Gen., on briefs.

Michael F. Fauerbach and Santini, Jacobs, McDonald & Silc, P.C., Ashland, for John Lemieux.

Kathryn L. Tierney, Wisconsin Judicare, Inc., Wausau, for Peter Lemieux.

CALLOW, Justice.

This review arises out of a decision 1 of the court of appeals which affirmed an order of the Ashland County Circuit Court, Hon. Gary L. Carlson, Circuit Judge or Taylor County, presiding, which dismissed citations issued to John and Peter Lemieux for the violation of sec. 29.224(2), Stats. 2

The parties have stipulated to the facts in this case. John and Peter Lemieux are both adult enrolled members of the Bad River Band of Lake Superior Chippewa. At approximately 12:50 a.m., on October 26, 1979, the Lemieuxs were stopped on a public highway within the Bad River Reservation by two Wisconsin Department of Natural Resources (DNR) conservation wardens. In their truck, the Lemieuxs were carrying two loaded, uncased, high-powered rifles and one .357 caliber pistol. According to the stipulation of facts, the Lemieuxs were about to start hunting wild animals. The DNR wardens issued citations to John and Peter Lemieux for transporting loaded and uncased firearms in a vehicle in violation of sec. 29.224(2), Stats.

By stipulation these two cases were consolidated. The trial court dismissed the citations against the Lemieuxs on the ground that the state lacked jurisdiction to enforce them. Finding that sec. 29.224(2), Stats., was primarily a hunting regulation, the court reasoned that its enforcement against the Lemieuxs on their reservation would improperly infringe upon the hunting rights reserved to them by Treaty in 1854. The court of appeals affirmed but on different grounds. Rather than rely upon hunting rights, the court of appeals treated sec. 29.224(2) as a safety regulation. The court held that, absent a specific federal grant of jurisdiction, the state is presumed to be without jurisdiction over tribal Indians. After examining the bases for jurisdiction advanced by the state, the court of appeals concluded that the state was without authority to enforce sec. 29.224(2), Stats., against the Lemieuxs.

The issue presented for review is whether the state of Wisconsin has jurisdiction to enforce a violation of sec. 29.224(2), Stats., against enrolled members of the Bad River Band of Lake Superior Chippewa on a public highway located within the boundaries of the Bad River Reservation. We conclude that the enforcement of sec. 29.224(2), Stats., against the Lemieuxs would be an impermissible infringement upon treaty-guaranteed hunting rights. 3 Accordingly, the state is without jurisdiction to enforce the citations.

On September 30, 1854, at La Pointe, Wisconsin, the United States signed a Treaty with the Chippewa. 10 Stat. 1109 (1854). The Bad River Reservation was created by Article 2 of the Treaty which provides in pertinent part:

"The United States agree to set apart and withhold from sale, for the use of the Chippewas of Lake Superior, the following described tracts of land, viz:--

"...

"2d. For the La Pointe band, and such other Indians as may see fit to settle with them, a tract of land bounded as follows: Beginning on the south shore of Lake Superior, a few miles west of Montreal River, at the mouth of a creek called by the Indians Ke-che-se-be-we-she, running thence south to a line drawn east and west through the centre of township forty-seven north, thence west to the west line of said township, thence south to the southeast corner of township forty-six north, range thirty-two west, thence west the width of two townships, thence north the width of two townships, thence west one mile, thence north to the lake shore, and thence along the lake shore, crossing Shag-waw-me-quon Point, to the place of beginning. Also two hundred acres on the northern extremity of Madeline Island, for a fishing ground."

The Treaty did not specifically confer hunting and fishing rights to the Chippewa. Nevertheless, it has been interpreted to grant such rights. 4 State v. Johnson, 212 Wis. 301, 311, 249 N.W. 284 (1933) (overruled on other grounds, State v. Gurnoe, 53 Wis.2d 390, 405, 192 N.W.2d 892 (1972)). "[T]he basic rule for interpreting Indian treaties is to determine what was the intent of the parties." State v. Gurnoe, 53 Wis.2d 390, 403, 192 N.W.2d 892 (1972). In order to help discern the parties' intent, treaties are to be construed liberally with ambiguities being resolved in favor of the Indians. Id.; State v. Sanapaw, 21 Wis.2d 377, 382, 124 N.W.2d 41 (1963), cert. denied, 377 U.S. 991, 84 S.Ct. 1911, 12 L.Ed.2d 1044 (1964). Applying these principles, this court in Gurnoe found it unlikely that the Chippewa intended to give up their fishing rights in the 1854 Treaty. 5 Accordingly, we held that the language in Article 2 of the Treaty which provides that the United States shall set apart certain land "for the use of" the Chippewa extended fishing rights to them. 53 Wis.2d at 400, 192 N.W.2d 892. Under the Gurnoe rationale the same Treaty language granted the Chippewa hunting rights.

The Supremacy Clause provides that a treaty with the Indians is the supreme law of the land (U.S.Const. art. VI, cl. 2), 6 and "the exercise of rights on reservation lands guaranteed to the tribe by the Federal Government would not be subject to state regulation, at least in absence of a cession by Congress." Menominee Tribe v. United States, 391 U.S. 404, 411-12 n. 12, 88 S.Ct. 1705, 1710-11 n. 12, 20 L.Ed.2d 697 (1968). Therefore, the state of Wisconsin may not qualify or condition hunting and fishing rights which were conferred to the Indians by treaty. 7 Puyallup Tribe v. Dept. of Game, 391 U.S. 392, 398-99, 88 S.Ct. 1725, 1728-29, 20 L.Ed.2d 2689 (1968).

The limitation on state jurisdiction with respect to treaty rights has long been recognized by the courts. In In re Blackbird, 109 F. 139 (D.C.W.D.Wis.1901), a member of the Bad River Band of the Chippewa was arrested for violating a Wisconsin fish and game law on his reservation. In concluding that the state lacked authority to enforce the law, the court held:

"Congress might even provide fish and game laws to restrict the Indians in their natural and immemorial rights of fishing and hunting. But it has not seen fit to do so. It would be intolerable if the state, under these circumstances, should have the power to step in, and extend its civil and criminal codes and police power over these people. It would be an invitation to an early conflict of jurisdiction." Id. at 144.

See also Moore v. United States, 157 F.2d 760 (9th Cir.1946); Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001 (D.Minn.1971). Congress has also acknowledged this constraint on state jurisdiction. The United States Code grants certain states, including Wisconsin, jurisdiction over criminal offenses committed by Indians on Indian reservations. 18 U.S.C. sec. 1162 (1976). Congress, however, expressly limited that jurisdiction so as not to interfere with treaty-guaranteed hunting and fishing rights. 18 U.S.C. sec. 1162(b) (1976) provides:

"Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof."

Thus we conclude that the state is generally without jurisdiction to regulate the treaty-guaranteed right of the Chippewa to hunt and fish on their reservation.

The state, however, argues that hunting rights guaranteed by treaty do not extend to public rights-of-way running through the reservation. Therefore, because the Lemieuxs committed the offense on a public highway, the state contends it has jurisdiction to enforce the citations. We disagree. Rights-of-way running through Indian reservations are specifically designated as " 'Indian country' " by federal law. 18 U.S.C. sec. 1151 (1976); 8 Ortiz- -Barraza v. United States, 512 F.2d 1176, 1180 (9th Cir.1975). We are not persuaded that a right-of-way within a reservation is any different from other reservation land with respect to treaty-guaranteed hunting and fishing rights. Accordingly, we conclude the fact that the Lemieuxs' activities occurred on a public highway does not create an exception to the general prohibition against state infringement of hunting and fishing rights guaranteed by treaty.

Having determined that the 1854 Treaty with the Chippewa guarantees hunting rights and that the state generally cannot regulate such rights, we now turn to the specific question presented by this case: whether the state has jurisdiction to enforce sec. 29.224(2), Stats., against Indians on their reservation. This question does not turn on whether sec. 29.224(2) is primarily a hunting or safety regulation, as suggested by the trial court, but rather whether the enforcement of sec. 29.224(2) impermissibly infringes upon treaty-guaranteed hunting rights. The legislative purposes underlying the statute are instructive on this issue.

Sec. 29.224,...

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6 cases
  • State v. Webster
    • United States
    • Wisconsin Supreme Court
    • October 4, 1983
    ...hunting and fishing rights, a right-of-way within a reservation is no different from other reservation land. State v. Lemieux, 110 Wis.2d 158, 165, 327 N.W.2d 669 (1983). We conclude that the language of 25 U.S.C. sec. 311, taken together with the expressed congressional intent to include r......
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