MADISON, Wis. (CN) - Wisconsin's attorney general challenged the limits of the Lac du Flambeau Band of Lake Superior Chippewa Indians' sovereignty in a lawsuit seeking to invalidate nonmember fishing regulations passed by the tribe.
The Lac du Flambeau Band of Lake Superior Chippewa Indians got its name from its practice of harvesting fish at night by torchlight. The reservation was established by the Treaty of 1854 between the federal government and the tribe, covering 260 lakes, 65 miles of streams, lakes and rivers and 24,000 acres of wetlands.
The Tribal Fish Hatchery stocks the waterways with more than 200,000 fish every year.
Over March and April, the Band's Tribal Council passed three resolutions aimed at restricting nonmember fishing on 19 lakes within the outer border of the reservation based on a Tribal Fish Hatchery report on overfishing.
The resolutions close 19 lakes to walleye and musky fishing by nonmembers, arguing those species are integral to the tribe's political integrity - a nod to one of two exceptions under which nonmembers' activities can be regulated.
"Our people have been stewards of these waters since time immemorial," said Tribal President John Johnson Sr. "The walleye is not just a fish to us; it is a clan relative, a traditional food source and central to our way of life."
On Wednesday, Wisconsin Attorney General Josh Kaul sued tribal leadership in federal court requesting a pause on any enforcement of the ban before inland fishing season begins Saturday.
"The 1854 treaty did not grant the Chippewa Indians, including the Band, any authority to regulate fishing by non-Indians in Wisconsin's navigable waters, including those state waters located within the boundaries of the band's reservation," Kaul said in a 29-page complaint.
The U.S. District Court for the Western District of Wisconsin has already considered a case much like this one, according to Kaul, ultimately ruling the state enjoys exclusive sovereignty over navigable waters within the outer border of the tribe's reservation.
The Seventh Circuit affirmed, finding nothing in the 1854 treaty to convey sovereignty over navigable waters. That case involved a different band of Chippewa Indians in Wisconsin, who enacted a tribal code restricting all fishing and hunting within its reservation.
Kaul argued tribes may only exercise authority over nonmembers in special circumstances afforded by virtue of treaties and federal law - none of which apply here.
Native American tribes do not have inherent authority to regulate the activities of nonmembers, except through taxation or contracts of some kind and in cases where nonmember activities impact the "political integrity, the economic security or the health and welfare of the tribe," according to Kaul.
The resolutions do not fall under these strict parameters because nonmembers fishing on Wisconsin lakes obtain licensing from the state rather than the tribe, the attorney general added, even on lakes within the reservation.
In 2022, the tribe closed Flambeau Lake to nonmember fishing for walleye and musky, but the ban was never enforced. State officials contacted the tribe to discuss its resource protection concerns and issued a release to the public urging it to steer clear of the lake.
The tribe declared a state of emergency Wednesday in response to the "critical decline of walleye and muskellunge populations in reservation lakes, and in recognition of public safety concerns" brought forward by the state.
State officials fear the resolutions will cause conflict on the water if tribal law enforcement attempts to take enforcement action, or if nonmembers simply ignore the resolutions in favor of Department of Natural Resources regulation.
"Wisconsin law enforcement officials believe that the Band's resolutions relating to nonmember fishing create a heightened risk of unpredictable behavior, potential confusion, conflict and a potentially unsafe environment for anglers, law enforcement and the public," Kaul said.
Neither party responded for comment by press time.
Source: Courthouse News Service
