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00-3440 State v. Matthews

By: dmc-admin//September 10, 2001//

00-3440 State v. Matthews

By: dmc-admin//September 10, 2001//

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“In Lac Courte Oreilles Band v. Voigt, 700 F.2d 341 (7th Cir. 1983) (LCO I), the court of appeals recognized that the Chippewa have usufructuary rights and remanded the case to the district court for determination of several issues, including the permissible scope of state regulation over the Indians’ exercise of their rights. … In LCO IV, the district court addressed the scope of permissible state regulation of the tribes’ usufructuary rights. First, the court recognized that the parties agreed that the State may regulate where reasonable and necessary for conservation purposes. [Citation]. Second, the court held that the State was not limited to regulating solely for conservation purposes.

“The court concluded that one of the specific instances in which the State can regulate usufructuary rights is in the interest of public health and safety. … The court stated, ‘[I]t appears logical that if the state may intrude upon treaty reserved rights to preserve a species or resource, it may intrude as well to preserve its citizens from certain public health or safety hazards.’…

“After considering trial testimony, the court concluded that the State’s prohibition on shining deer is a ‘narrowly drawn, non-discriminatory restriction on [the tribes’] hunting rights that is necessary to protect the safety of persons in the ceded territory. It imposes a minimal infringement on [the tribes’] rights in comparison to the great danger night hunting presents to public safety.'”

Order affirmed and cause remanded.

Recommended for publication in the official reports.

Dist III, Marinette County, Duket, J.,; Cane, C.J.

Attorneys:

For Appellant: Jane K. Smith, Oconto Falls

For Respondent: Thomas L. Dosch, Madison

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