Wisconsin Chippewa tribes take night deer hunting, and DNR, back to federal court
A trial that will decide whether the state’s six Chippewa tribes may shoot deer at night begins today, Monday, July 22, in Western District Court in Madison, with Federal Judge Barbara Crabb presiding.
The trial is expected to run through Friday, July 26, and then continue Monday and Tuesday, July 29 and 30, the following week.
The six Chippewa tribes will be calling 20 witnesses.
The DNR had hoped to split the trial into two phases – 1. whether there are any changed circumstances to the original deer trial (presided over also by Judge Crabb) to warrant allowing this trial; and 2, determinging whether the tribes’ proposed tribal night-hunting training plan and hunting season framework is sufficiently safe to allow hunting of deer at night by tribal members.
Crabb decided to hear both issues at the same time, and in the same trial.
The first two days of the trial, July 22-23, will be the tribes presenting their case; the next two days, July 24-25, will be the state presenting its case. No one is sure what will proceed after those four days, but the trial is expected to run through July 30.
The tribes filed briefs ahead of the trial that explains their training plan (if night shooting is allowed by Crabb, any tribal member hunting at night would have to go through the tribal training plan). Ironically, two former DNR conservation wardens, Tom Kroeplin and Chris McGeeshik, developed the tribal night-shooting training plan. McGeeshik is also a tribal member. Kroeplin is now the training officer for the for the Great Lakes Indian Fish and Wildlife Commission game warden staff.
A key point to watch during the trial – back in 1991, both sides decided that they would live with what they got from Crabb’s initial rulings on wildlife, fish, gathery and forestry – that they would not appeal or reopen these issues. This current trial is viewed by the state as the tribes going back on their word, and the state briefed Judge Crabb on that viewpoint.
The state also briefed on “what constitutes changed circumstances,” and reopening the original Voigt decision – which this trial will do – could dictate what future issues coming before the court might look like, or that issues could be relitigated. For instance, could the state file a motion with Judge Crabb to challenge one or more areas of current off-reservation treaty rights?
The tribes want to start shooting deer at night on Nov. 1.
With that date in mind, Judge Crabb will likely make her decision well before Nov. 1, considering that there is a distinct possibility that either side would appeal Crabb’s decision to the Seventh Circuit Court of Appeals.
The DNR won on an injunction request late last year. The tribes had wanted to start night shooting deer last year in December. At that time, the state argued that the tribes don’t have the right to implement night deer hunting without getting court approval or DNR approval. Crabb upheld the state’s position in the hearing, agreeing that the tribes can’t self implement their own rules.
Now the six Chippewa tribes are using the DNR’s CWD eradication program, which included night shooting of deer by sharpshooters, as their reason for seeking approval for night hunting. They’are also saying the night hunting of wolves also gives them standing for night hunting of deer, even though night hunting of wolves is no longer part of the law – it was removed by Gov. Scott Walker through the latest budget bill.
There is no other similar type of deer night hunting in any state.
Representing the state will be retired Assistant AG Tom Dosch, current Assistant AG Diane Milligan, and Quinn Williams from the DNR. Dosch won two phases of the original trial for the state back in the early 1990s when he was still working in the AG’s office – he won the timber portion of the case with a lot of help from the Wisconsin County Forest Association, and he won the gathering portion of the case.
Some of the state witnesses will be newly retired Bureau of Law Enforcement Director Tim Lawhern (he is a DNR employee through Jan. 1), DNR Chief Warden Randy Stark, and wildlife biologists Don Bates, Tami Ryan, Bill Ishmael, and Brad Koele.