Page 1 Page 2 Page 3 Page 4 Page 5 Page 6 Page 7 Page 8 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 19 Page 20 Page 21 Page 22 Page 23 Page 24 Page 25 Page 26 Page 27 Page 28 Page 29 Page 30 Page 31 Page 32 Page 33 Page 34 Page 35 Page 36 Page 37 Page 38 Page 39 Page 40 Page 41 Page 42 Page 43 Page 44 Page 45 Page 46 Page 47 Page 48 Page 49 Page 50 Page 51 Page 52 Page 53 Page 54 Page 55 Page 56 Page 57 Page 58 Page 59 Page 6011 However, LCO appealed, and in 1983 the Seventh Circuit Court of Appeals reversed the District Court’s ruling, holding that the rights reserved by the Treaties of 1837 and 1842 had not been revoked or terminated and continue to exist. The Appellate Court returned the case to District Court for further proceedings to determine: 1) the scope of the treaty rights; 2) the extent to which the state may regulate the exercise of those rights; and 3) what damages, if any, the tribes may recover as a result of the state’s infringement of the treaty rights. The State of Wisconsin petitioned the United States Supreme Court to review the Seventh Circuit Court’s decision. However, the Supreme Court chose not to review the case, leaving the Seventh Circuit’s decision intact. Five other Wisconsin Ojibwe bands joined the lawsuit, including the Bad River, Lac du Flambeau, Sokaogon/Mole Lake, Red Cliff, and St. Croix Bands. The six plaintiff tribes proceeded with the case in the District Court to further define the treaty right. The District Court divided the proceedings into three phases: Phase I: Declaratory Phase—determination of the nature and scope of the treaty rights; Phase II: Regulatory Phase—determination of the permissible scope of state regulation; Phase III: Damages Phase—amount of damages, if any, to which the tribes are entitled for infringement on treaty rights. Nature and scope of the rights: Phase I Phase I proceedings to determine the nature and scope of the treaty rights were held in De- cember 1985 before Federal Judge James Doyle. Judge Doyle ruled that all resources in the Ceded Territory could be harvested by tribal members usingallmodernmethodsofharvest.JudgeDoyle further ruled that the resources could be per- sonally consumed, traded, or sold in the modern day market economy. Finally, Doyle held that the tribes are entitled to as much of the resources as will ensure their members a modest living. Upon Judge Doyle’s death in 1987, the case was assigned to Judge Barbara Crabb. The state sought to appeal Judge Doyle’s ruling. However, Judge Crabb denied this request and proceeded with the case at the District Court level. Tribal self-regulation: Phase II On August 21, 1987, Judge Crabb reaffirmed the standard principles apparent in other treaty rights cases from throughout the country. She held that the state may regulate in the interests of conservation, provided those regulations: 1) are reasonable and necessary for the conservation of a species or resource; 2) do not discriminate against Indians; and 3) are the least restrictive alternative available. Judge Crabb also ruled that the state may impose regulations if they are reasonable and necessary to protect public health and safety. However, she held that the tribes possess the authority to regulate their members and that effective tribal self-regulation precludes state regulation. By agreement of all parties and of the court, Phase II of the LCO litigation was divided into “sub-phases” to address regulatory issues specific to each resource. They are as follows: Walleye/muskellunge The subphase proceedings that focused on walleye and muskellunge harvests were held in October 1988. Many of the issues were resolved by mutual agreement prior to the trial. On March 3, 1989, Judge Crabb held that, as long as the tribes adopted regulations incor- porating the biologically necessary conditions established by the state at trial, including the Safe Harvest Level (SHL) calculations, (see page 13) the tribes would be allowed to regulate their har- vest of walleye and muskellunge. Deer harvest/allocation On May 9, 1990, Judge Crabb issued a decision resulting from the deer subphase and from various other issues presented for her resolution. As in her decision on walleye/ muskellunge harvests, Judge Crabb said that state law could not be enforced provided that the tribes enact a system of regulations consistent with her decision. The tribes have done so. The most significant aspect of the 1990 deer decision was Judge Crabb’s ruling that the tribal allocation of treaty resources was a maximum of 50% of the resource available for harvest.