By TODD RICHMOND | Associated Press
MADISON, Wis. (AP) — A federal judge on Friday refused to let Wisconsin's Chippewa tribes hunt deer at night, ruling the tribes failed to justify reworking a long-standing treaty rights decision to allow the practice.
The state Department of Natural Resources has long banned hunting deer at night out of safety concerns. The Chippewa attempted to persuade U.S. District Judge Barbara Crabb in 1989 to exempt tribal hunters from the prohibition during a court battle over treaty rights in the ceded territory, a huge swath of northern Wisconsin the Chippewa handed over to the federal government in the 19th century.
Crabb ultimately sided with the state in 1991, finding night deer hunting is dangerous and the prohibition therefore must apply to tribal members. The tribes agreed to abide by the decision. Last year, though, legislators tweaked the tribes when they approved a law creating a wolf hunt with provisions allowing night hunting. The Chippewa consider the wolf a spiritual brother.
The tribes asked Crabb to adjust the 1991 decision to allow tribal hunters to go after deer at night in the ceded territory, a huge swath of northern Wisconsin. They argued the state must believe the practice is safe because legislators approved night wolf hunting, the DNR instituted night deer hunting programs to curtail chronic wasting disease in 2002 and the agency authorized night hunts to protect crops and prevent car-deer collisions.
Crabb held a trial on the tribes' arguments this past July. She issued her decision in the case Friday, saying the tribes failed to prove circumstances had changed so drastically she should revisit the 1991 decision.
The state has allowed significant night deer hunting, Crabb wrote. But the government did almost all the hunting, and most of it was designed to slow chronic wasting disease, "not for sport or even subsistence." The government also used agents subject to job discipline if they broke the program's rules. Those hunts don't prove that night deer hunting is safe and the 1991 decision was wrong, she said.
She acknowledged the tribes' argument that night wolf hunting doesn't square with the night deer hunting ban was strong. But legislators rendered that moot when they eliminated night wolf hunting in the current state budget, she wrote.
"If the legislature had not eliminated that aspect of the wolf hunt for 2013, it might have difficult to deny plaintiffs' motion to reopen the judgment," Crabb wrote. "However, now that the legislature has changed course … plaintiffs cannot rely on the wolf hunting regulations as a further ground for attacking the judgment,"
Sue Erickson, a spokeswoman for the Great Lakes Indian Fish and Wildlife Commission, which oversees the Chippewa's off-reservation rights, declined comment. Colette Routel, who represents the Lac Du Flambeau Band of Lake Superior Chippewa and serves as one of the lead attorneys for the tribes in the case, didn't immediately return telephone and email messages after hours Friday.
DNR Secretary Cathy Stepp issued a statement saying the agency was pleased.
"The department felt it necessary to defend state interests," she said, "and in doing so, public safety has been protected."