A deer in Wisconsin. Photo from Great Lakes Indian Fish and Wildlife Commission / Facebook
Wisconsin tribes celebrated on Wednesday after a federal judge handed them another victory in a treaty rights case. Members of the Lac Courte Oreilles Band, the Lac du Flambeau Band, the Sokaogon Chippewa Community and the Red Cliff Band asserted their right to hunt deer at night on ceded lands. The state, however, refused to allow the practice due to safety concerns. But Judge Barbara Crabb said those concerns were unjustified. Reversing course from a decades-old decision in the case, she noted that the tribes have adopted strong regulations in a state where night hunting is allowed in other forms. "Plaintiffs’ retained their hunting rights, including the right to hunt at night, when they ceded thousands of acres of northern Wisconsin to the United States in the early part of the nineteenth century," Crabb wrote in the 14-page decision. "Their right to hunt deer at night throughout the ceded territory was prohibited in the final judgment entered in 1991 only because I found then that the state defendants had shown such hunting to be a hazard to public safety, that the particular regulation was necessary to prevent the hazard and that it was the least restrictive alternative to the accomplish the safety purpose."
Off-reservation deer hunting zones in Wisconsin. Image from Great Lakes Indian Fish & Wildlife Commission
Crabb acted on guidance from the 7th Circuit Court of Appeals that placed the burden on the state to explain why tribal regulations are inadequate. One by one, she rejected proposed limits that weren't being applied to non-Indian hunters in other situations. "Now, with the benefit of 24 years of state experience with night hunting, the tribes have been able to show that the prohibition on off-reservation night deer hunting is no longer necessary for public safety purposes, when properly regulated," Crabb wrote. chronic wasting disease. “This is more about our sovereign authority to establish our own seasons than it is on the particular issue of hunting at night,” Lac Courte Oreilles Chairman Michael J. Isham Jr. said on Wednesday.
Indianz.Com SoundCloud: 7th Circuit Court of Appeals Oral Arguments in Lac Courte Oreilles Band v. Wisconsin
Crabb initially sided with the state but the tribes appealed to the 7th Circuit. In a unanimous decision issued last October, the court ordered another look at the matter. "The burden of production should be placed on the state, for as the record stands the evidence presented by the tribes that night hunting for deer in the ceded territory is unlikely to create a serious safety problem," Judge Richard Posner wrote for the majority. Tribal members can already hunt deer at night on their reservations. Posner noted that their safety record is "sterling" -- there have been only two or three accidents on ceded lands since 1989. The tribes returned to Crabb with a set of stringent regulations that demonstrate why their hunt will be safe. The season will run from November 1 through January 4. Participants will be required to take a two-day safety course and they must pass a marksmanship test that will be administered at night.
The Thundercloud Singers kicked off the Wolf and Wildlife Conservation and Coexistence Initiative, hosted by the Ho-Chunk Nation in July 2015. Photo from Great Lakes Indian Fish and Wildlife Commission / Facebook
With victory at hand, the Great Lakes Indian Fish and Wildlife Commission said it will post dates and locations of the safety courses on its website "within the next few days," just in time for the start of the season. After the 7th Circuit ruling, the state asked the U.S. Supreme Court to hear the case. The justices, without comment, rejected the petition in Wisconsin v. Lac Courte Oreilles Band of Lake Superior Chippewa Indians on April 20. The state won't be fighting Crabb's latest ruling. The Department of Natural Resources said it was "disappointed" with the outcome of the case but will not be appealing. "Given the court's prescribed timing of the season, which starts Nov. 1, DNR is working to inform the public about tribal night hunting to minimize potential safety related issues," the department said in a statement. Wisconsin tribes ceded thousands of acres through treaties that left them with small reservations throughout the state. But they retained the right to hunt on ceded lands in a large portion of the northern part of the state. Turtle Talk has posted documents from the case, Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. State of Wisconsin. 7th Circuit Decision:
Lac Courte Oreilles Band v. Wisconsin (October 9, 2014)
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