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Indian Nations Law Update - November 2014

November 17, 2014

In Lac Courte Oreilles Band v. Wisconsin, 769 F.3d 543 (7th Cir. 2014), Chippewa tribes had entered into treaties with the United States in 1837, 1842 and 1854 ceding millions of acres in Michigan, Wisconsin and Minnesota but reserving the right to hunt, fish and gather in the ceded territories. The survival, scope and regulatory code of the reserved rights were litigated for seventeen years and ultimately made part of a final judgment in 1991, which neither party chose to appeal.

Among the district court rulings that the tribes had contested was the district court’s prohibition, on public safety grounds, of night deer hunting by tribal members. After the State of Wisconsin authorized night hunting by contract hunters to cull the herd, the tribes sought to reopen that prohibition on the ground that experience since 1991 had shown that night hunting could be carried out safely. When negotiations with the State proved unsuccessful, the tribes filed a motion under Fed. R. Civ. Proc. 60 for relief from the 1991 final judgment. The district court granted the State’s motion for summary judgment but, on October 9, 2014, the Seventh Circuit Court of Appeals reversed:

Though the treaties do not mention the states, states are allowed to regulate Indian activities in ceded territory so far as necessary "to protect the state’s natural resources and its citizens." ... State jurisdiction over Indians is limited but includes the right to take measures necessary to protect public safety, id., and safety concerns were the justification given by Wisconsin for wanting to prohibit Indians from hunting deer at night outside their reservations. But the state must justify, not merely assert, a public-safety need to restrict Indian rights recognized by treaty with the federal government. It must show, first, "that a substantial detriment or hazard to public health or safety exists or is imminent. Second, ... that the particular regulation sought to be imposed is necessary to the prevention or amelioration of the public health or safety hazard. And third, ... that application of the particular regulation to the tribes is necessary to effectuate the particular public health or safety interest. Moreover, the state must show that its regulation is the least restrictive alternative available to accomplish its health and safety purposes.


The tribes’ argument is that the state’s greater experience with night hunting of deer since the 1991 judgment shows that it is safer than had been believed—so safe indeed that, given sensible regulations governing such hunting, there is no reason to prohibit the tribes’ members from engaging in such hunting on ceded territory. At least four states allow Indians to hunt deer at night—Oregon, Washington, Minnesota, and Michigan. Neither the tribes nor the state has presented evidence of the accident rate in any of those states. We’ll leave it to the district court to decide whether to invite the parties to submit such comparative evidence. 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 provides a compelling reason for vacating the 1991 judgment that prohibited Indians from hunting deer at night in that territory.

The Seventh Circuit’s decision does not dramatically change treaty rights jurisprudence because the court applied existing standards in assessing the legitimacy of the state’s safety regulation was based on existing case law. Nevertheless, the decision is important in several respects:

1. The decision signals that, within the Seventh Circuit at least, the requirement of Rule 60(b) that a motion for relief from judgment must be brought within a "reasonable time" will not prevent a court from reconsidering a state restriction on treaty rights that, based on current facts, can no longer be justified.

2. The decision indicates that courts should not defer to a State’s alleged security concerns but should instead view them with healthy skepticism: "[T]he state must justify, not merely assert, a public-safety need to restrict Indian rights recognized by treaty with the federal government."

3. The decision, joined by three very senior, highly respected judges, reflects an admirable understanding of, and respect for, the exercise of off-reservation treaty-reserved rights that may influence other courts to adopt the same approach.

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