Date: 10-09-2014

Case Style: Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin, et al. v. State of Wisconsin

Case Number: 14-1051

Judge: Posner

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Western District of Wisconsin (Dane County)

Plaintiff's Attorney: Carol Lynn Barbero, Katherine Jane Lindsay, Lisa Frasco Ryan and Joseph H. Webster

Defendant's Attorney: Megan McDermott

Description: The plaintiffs, Wisconsin Indian
tribes, moved the district court under Fed. R. Civ. P. 60(b)(5)
to relieve them from a final judgment on the ground that its
continued enforcement would be, in the language of the
rule, “no longer equitable.” There is no deadline for moving
for relief under this provision, though a party must move
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within a reasonable time. See Fed. R. Civ. P. 60(c)(1). The district
court denied the motion, precipitating this appeal.
The judgment in question, entered in 1991 and not appealed,
upheld a state statute prohibiting members of the
tribes from hunting deer at night outside the tribes’ reservations.
Lac Courte Oreilles Band of Lake Superior Chippewa Indians
v. Wisconsin, 775 F. Supp. 321, 324 (W.D. Wis. 1991). Wisconsin
Indians had hunted deer at night since before they
had electricity. Hunting deer at night is efficient because
deer are more active at night, and because a bright light in a
deer’s visual field freezes the animal, making him a large
stationary target. According to proposed findings of fact
submitted by the plaintiffs, “tribal members need to hunt for
subsistence purposes. Between 25% and 93% of Tribal members
are unemployed. Many Tribal members that are employed
still live below the poverty level.” (Twenty-eight percent
of the state’s Indian population have incomes below the
poverty level. Suzanne Macartney et al., “Poverty Rates for
Selected Detailed Race and Hispanic Groups by State and
Place: 2007–2011” 14 (Feb. 2013), www.census.gov/prod/2013
pubs/acsbr11-17.pdf (visited Oct. 8, 2014, as were the other
websites cited in this opinion).) Deer meat also is lean and
therefore healthful (obesity is far more prevalent among Indians
than among whites, see American Heart Association,
American Indian/Alaska Natives & Cardiovascular Diseases
(2013), www.heart.org/idc/groups/heart-public/@wcm/@sop/
@smd/documents/downloadable/ucm_319569.pdf). According
to the plaintiffs “a disproportionate number of Tribal
members have chronic diseases such as heart disease and
diabetes. Cheap, high fat hamburger meat purchased with
food stamps cannot replace healthy venison in tribal populations
experiencing chronic health problems,” and in addition
No. 14-1051 3
“tribal members need to hunt at night for cultural and religious
reasons. Fresh deer meet [sic] may be needed for a
ceremony, and the only opportunity to obtain it may be at
night.”
As shown in the map below, reservation lands in Wisconsin
are limited and scattered. But much of the northern
third of Wisconsin that is not reservation land (the solid
black regions of the map) is territory ceded by the Indian
tribes to the United States in the nineteenth century (as
marked by the shaded region of the map). The treaties that
governed the terms of the cession reserved the Indians’
rights to hunt in the ceded territory. For example, a treaty of
1842 provided that “the Indians stipulate for the right of
hunting on the ceded territory, with the other usual privileges
of occupancy, until required to remove by the President
of the United States.” See Lac Courte Oreilles Band of Lake
Superior Chippewa Indians v. Voigt, 700 F.2d 341, 345 (7th Cir.
1983).
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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.” Reich v. Great Lakes Indian Fish & Wildlife Commission,
4 F.3d 490, 501 (7th Cir. 1993). 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
No. 14-1051 5
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.” Lac Courte Oreilles
Band of Lake Superior Chippewa Indians v. Wisconsin, 668 F.
Supp. 1233, 1239 (W.D. Wis. 1987); see also Mille Lacs Band of
Chippewa Indians v. Minnesota, 952 F. Supp. 1362, 1381–82 (D.
Minn. 1997).
In and before 1989, which was when the evidence was
presented on which the 1991 judgment was based, there had
been very little night hunting of deer other than on Indian
reservations. Occasionally law enforcement officers or employees
of the state’s department of natural resources would
shoot deer at night, but this was rare, the reason being that
night hunting was considered dangerous, although there
appears to have been no evidence supporting that fear.
The tribes’ motion to reopen the 1991 judgment is based
largely on the fact that beginning in the late 1990s the number
of deer killed at night, mainly by state employees though
also by some private state contractors, increased markedly
because of an explosion of the deer population and the advent
of chronic wasting disease, a fatal disease common
6 No. 14-1051
among deer. Night hunting was meant to reduce the deer
population in general (one reason being that deer are frequent
causes of serious traffic accidents) and to eradicate
chronic wasting disease in particular. 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. Hunting accidents in general have plummeted in
Wisconsin in recent years: from just over 100 in 1989 to 28 in
2012. The latter number is particularly striking since Wisconsin’s
population in 2012 was 5.7 million and hunting is
popular in that largely rural state.
The district judge rejected the tribes’ argument on several
grounds. One was that most of the increased night hunting
has been by employees or contractors of the state government.
But there is no evidence that the safety regulations
that the tribes intend to impose on off-reservation night
hunting are laxer than the regulations governing night hunting
by the state’s hunters. (In fact the opposite is true, as
we’ll see.) The safety record of deer hunting on reservations
is outstanding. According to an uncontradicted expert witness’s
report, though there are no regulations specific to
night hunting on the reservations (where night hunting is
lawful) there have been only two reported incidents of a person
being shot by a deer hunter, either day or night. Furthermore,
there’s no evidence that the state agents who hunt
deer at night are experienced or well-trained. Apparently
many are neither. In 2006 the state’s department of natural
resources noted that “shooters are coming to this program
[eradication of chronic wasting disease by night hunting] ill
No. 14-1051 7
prepared. … Too many do not know the basic rules of firearms
safety. … Our trainees come from within the ranks of
the department [of natural resources] and the vast majority
are not seasoned shooters … .” In contrast, those Indians
who hunt deer tend to be experienced hunters, because on
their reservations they are allowed to hunt both during the
day and at night. Moreover, to be licensed to hunt they are
required to pass a marksmanship test—at night. Their safety
record is sterling: since 1989 there have been only two or
three recorded hunting accidents involving Indians in ceded
territory. According to another expert witness’s report, the
tribes’ proposed permit requirements for nighttime deer
hunting are far more stringent than those the state imposes
on its hunters.
The judge remarked that “the chronic wasting disease
initiative is some evidence that night hunting with lights can
be engaged in safely but it is not conclusive in that regard. I
cannot say that it shows that the judgment in this case has
become ‘an instrument of wrong.’” It’s not clear what evidence
would demonstrate “conclusively,” in advance of
permitting the hunting of deer at night by members of the
plaintiff tribes, that such hunting was safe. All that can be
said is that on the present record there is scant reason to
think that safety concerns justify forbidding Indians to hunt
deer at night in the thinly populated (by human beings)
northern part of Wisconsin that consists of territory that the
tribes ceded to the United States long ago. There are of
course hunting accidents, but they are mainly to members of
the shooting party—often they are self-inflicted wounds—
rather than to bystanders. Between 2007 and 2011 there were
133 hunting-related injuries of which 48 were self-inflicted.
Of the remaining 85 accidents, only 4 were to non-hunters—
8 No. 14-1051
either bystanders or non-hunting members of the hunting
party.
The night hunter doesn’t shoot until the deer is a brightly
lit stationary object—a perfect target. Hunting deer during
the day is likely to be more dangerous because there are
more people about and the hunter will often be shooting at a
moving animal, which a shooter is more likely to miss than a
stationary one. It’s true that at night the hunter may well
have greater difficulty seeing a person in the woods behind
the deer that he’s aiming at—and bullets fired from the highpowered
rifles used to hunt deer carry a long way if they
happen to miss the targeted deer. But in recognition of this
danger the hunting regulations proposed by the tribes require
the night-hunting Indians to lay out lines of sight in
the daytime and submit a shooting plan for approval. Unless
a hunter plans to fire from an elevated position (when because
of the angle the bullet is likely to hit the ground within
a safe distance), a member of the tribal conservation department
or the tribe’s internal regulatory agency must travel to
the site and confirm that the shooting plan complies with
safety standards. Further mitigating the danger is that one of
the plaintiff’s expert witnesses reports that there are very
few people out and about at night in the ceded territory during
the night deer-hunting season, which runs from November
1 until the first Monday in January, with a break during
the state’s regular nine-day hunting season when there are
likely to be more people out both day and night.
According to data compiled by Wisconsin state agencies,
between 2008 and 2011 there was a total of 1851 injuries and
deaths in collisions between motor vehicles and deer, and
only 37 injuries and deaths from all accidents—day and
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night—arising from the hunting of deer with guns, an average
of 9 a year. Whether any of them were deaths from night
hunting is unknown. But it is plausible—no stronger term is
possible, given a dearth of evidence—that the more deer that
Indians kill, the fewer deer-related accidents to humans
there will be, since according to the statistics we quoted 98
percent of deer-related injuries arise from motor vehicle collisions
with deer. Not that the effect will necessarily be large,
though in 2013 Wisconsin hunters killed about 342,000 deer
out of a population (before the hunting season) estimated at
1.4 million—24 percent of the deer population. See Deer-
Friendly, “Wisconsin Deer News,” www.deerfriendly.
com/deer/wisconsin; Wisconsin Department of Natural Resources,
“Total Deer Kill,” http://dnr.wi.gov/topic/Wildli
feHabitat/documents/deerharvest5.pdf. A further point concerning
safety is that the very small Indian population (1
percent of Wisconsin’s total population) imposes a natural
limit on the potential risk of Indian night hunting to public
safety.
The judge said that the fact “that plaintiffs waited ten
years after the chronic wasting disease reduction program
started and four years after it ended before moving to reopen
the judgment … in itself might be good cause for denying
their motion.” Not so. The longer the wait, the more evidence
is accumulated bearing on the safety of night hunting
of deer. The plaintiffs filed their motion to reopen and modify
the judgment in 2012; had they filed earlier they would
have had a thinner statistical basis for their position. And it’s
not as if the state is harmed by delay in reopening the judgment.
10 No. 14-1051
A motion to modify a judgment under Fed. R. Civ. P.
60(b)(5) must, like any motion, be made in a reasonable time,
since the rules specify no deadline. But what is reasonable
depends on the circumstances. If reasonable reliance on a
judgment is likely to grow over time, a motion to modify it
should be made sooner rather than later. But in the case of
regulatory decrees, such as the judgment in this case forbidding
night hunting of deer, often the passage of time renders
them obsolete, so that the case for modification or rescission
actually grows with time, as in Horne v. Flores, 557 U.S. 433,
447–48 (2009), People Who Care v. Rockford Board of Education,
246 F.3d 1073, 1075–76 (7th Cir. 2001), and Alliance to End Repression
v. City of Chicago, 237 F.3d 799, 801 (7th Cir. 2001).
That’s what seems to have happened in this case. Based on
almost no experience with night deer hunting in the 1980s,
the district court at the beginning of the next decade upheld
on safety grounds Wisconsin’s ban on off-reservation night
deer hunting by Indians. Greater experience with deer hunting
suggests that a total ban is no longer (if it ever was) necessary
to ensure public safety. And as noted in Reich v. Great
Lakes Indian Fish & Wildlife Commission, supra, 4 F.3d at 501, it
is only safety (and conservation, which however is not an
issue in this case) that can justify a state’s forbidding a normal
Indian activity, authorized to the tribes on land ceded
by them to the United States.
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 do not know whether such
statistics are obtainable. They would prove to be of little
value were there substantial differences among these states
or between them and Wisconsin in such potentially relevant
No. 14-1051 11
domains as terrain, climate, deer population, location and
size of ceded territory, the length and time of year of the
night deer hunting season, safety regulations, Indian population
as a percentage of total state population, population
density, Indian cultural and dietary practices relating to deer
hunting, poverty, and unemployment. But so far as we are
able to determine there are few relevant differences among
Minnesota, Michigan, and Wisconsin in these respects,
though considerable differences between those three Midwestern
states and Oregon and Washington. See, e.g., U.S.
Department of the Interior, Bureau of Indian Affairs, 2013
American Indian Population and Labor Force Report (Jan. 16,
2014), www.bia.gov/cs/groups/public///-024782.pdf. For example,
tribal hunting in the ceded territories in Wisconsin,
Minnesota, and Michigan is managed by the same organization,
the Great Lakes Indian Fish and Wildlife Commission.
And in developing their proposed regulations the Wisconsin
tribes looked to Michigan and Minnesota, both states that
have allowed night hunting for at least a decade, for guidance—
although the proposed Wisconsin regulations are far
more stringent than those of the other states. The Wisconsin
tribes’ night hunting safety course and certification program
are identical to those of the Minnesota tribes. Moreover, the
ceded territories in each of the three states (the upper peninsula
of Michigan, the northern third of Wisconsin, and the
east-central portion of Minnesota) are comparable in population
density, elevation, biomass (i.e. tree concentration), and
average temperature during the hunting season. So it seems
reasonable that Minnesota’s and Michigan’s experiences
with night hunting of deer by Indians might have a bearing
on our case.
12 No. 14-1051
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 judgment is reversed and the case remanded to the
district court for further proceedings consistent with this
opinion.

Outcome: REVERSED AND REMANDED.

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Defendant's Experts:

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