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Satz, Ronald N. / Transactions of the Wisconsin Academy of Sciences, Arts and Letters
volume 79, No. 1

Appendix 7: final judgement of Judge Barbara Crabb in Lac Courte Oreilles Band of Lake Superior Indians et al. v. State of Wisconsin et al., March 19, 1991,   pp. 187-191 ff. PDF (1.5 MB)


Page 188


Wisconsin Academy of Sciences, Arts & Letters
Judgment is entered as follows:
  The usufructuary rights retained by plaintiffs as a consequence of the
treaties
they entered into with the United States of America in 1837 and 1842 include
rights
to those forms of animal life, fish, vegetation and so on that they utilized
at treaty
time, set forth in the facts sections of the opinions entered herein on February
18,
1987 and February 21, 1991. Also, plaintiffs have the right to use all of
the methods
of harvesting employed in treaty times and those developed since. Plaintiffs'
retained
usufructuary rights do not include the right to harvest commercial timber.
They do
include the right to gather miscellaneous forest products, namely, such items
as
firewood, tree bark, maple sap, lodge poles, boughs and marsh hay.
  The fruits of the plaintiffs' exercise of their usufructuary rights may
be traded
and sold to non-Indians, employing modem methods of distribution and sale,
as
set forth in the opinion entered on February 18, 1987.
  The usufructuary rights reserved by the plaintiffs in 1837 and 1842 have
been
terminated as to all portions of the ceded territory that are privately owned
as of
the times of the contemplated or actual attempted exercise of those rights.
  Plaintiffs' modest living needs cannot be met from the present available
harvest
even if plaintiffs were physically capable of harvesting, gathering and processing
it. The standard of a modest living does not provide a practical way to determine
the plaintiffs' share of the harvest potential of the ceded territory.
  The state defendants will continue to bear the responsibility and authority
for the
management of all of the natural resources of the state except as provided
herein.
  Defendants are enjoined from interfering in the regulation of plaintiffs'
off-
reservation usufructuary rights to harvest walleye and muskellunge within
the ceded
territory in Wisconsin, except insofar as plaintiffs have agreed to such
regulation
by stipulation. Regulation of plaintiffs' off-reservation usufructuary rights
to harvest
walleye and muskellunge within the ceded territory is reserved to plaintiffs
on the
condition that they enact and keep in force a management plan that provides
for
the regulation of their members in accordance with biologically sound principles
necessary for the conservation of the species being harvested, as set out
in the
opinion entered herein on March 3, 1989, as amended on April 28, 1989. The
efficient gear safe harvest level shall be determined by the methods described
in
the opinion and order of this court of March 3, 1989, as supplemented and
amended
by proceedings in court on March 28, 1989, the court's order of March 30,
1989
(R. 996) and the court's order of April 28, 1989. In the event of a dispute
in
determining the safe harvest level for any lake that cannot be resolved by
the parties,
the determination shall be made by the Department of Natural Resources.
  Defendants are enjoined from interfering in the regulation of plaintiffs'
hunting
and trapping on public lands within the ceded territory in Wisconsin, except
insofar
as plaintiffs have agreed to such regulation by stipulation, on the condition
that
plaintiffs enact and keep in force an effective plan of self-regulation that
conforms
to the orders of the court.
  All of the harvestable natural resources to which plaintiffs retain a usufructuary
right are declared to be apportioned equally between the plaintiffs and all
other
persons, with such apportionment applying to each species and to each harvesting
unit with limited exceptions as set forth in the order entered herein on
May 9, 1990;
and upon the condition that no portion of the harvestable resources may be
exempted
from the apportionable harvest. With respect to miscellaneous forest products,
the
188


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