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

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

2 No. 14-1051

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).

4 No. 14-1051

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

No. 14-1051 9

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.

REVERSED AND REMANDED.