Will Tribes Use Federal Tax Dollars to Sue the DNR Over Potential Northern Wisconsin Mine?

Tribes claim to be cash strapped in a recent ruling, but judge points to federal tax dollars in denying request

May 9, 2014

by Haley Sinklair

In response to a recent decision reinforcing a ban on off-reservation deer shining by U.S. District Judge Barbara Crabb, the Lac Courte Oreilles Band of Lake Superior Chippewa Indians and five other northern Wisconsin tribes, including the Bad River Band of Lake Superior Chippewa Indians, filed a motion claiming they were “cash-strapped” and could not provide sufficient funds to pay the legal bills totaling $18,150.86.

Tribes DNR Quote.pngIf the motion were granted, that cost would fall on taxpayers. However, Judge Crabb responded to the motion claiming that the tribes did not provide sufficient evidence for waiving the bill of costs in the case.

Tribes argue that the income of members is low and that their counsel served without reimbursement. In claiming that tribal members’ average income was low the plaintiffs only said “Courts typically deny a petition for costs when the prevailing party has sufficient resources, the losing party has more limited resources, the case was prosecuted in good faith, and novel or close legal issues were presented.”

However, Judge Crabb writes in her decision that the plaintiffs “say nothing about the financial situation for the tribe itself or the money that the federal government has awarded to the tribes for protecting their legal interests.”

In October 2013 the Indian Law Clinic at William Mitchell College of Law received over $283,000 in federal grant money from the Department of Justice to provide legal assistance to Minnesota and Wisconsin Indian tribes.

In response to the tribes’ argument regarding lack of reimbursement to their counsel Crabb said “it appears that she did so as part of her work as a professor of law with the Indian Law Clinic at William Mitchell College of Law.”

Because of lack of evidence in their claim of insufficient funds, the tribes were ordered to fulfill the bill of costs in the amount of $18,150.86.

At least four individual members of the Bad River Band of the Lake Superior Tribe of Chippewa Indians filed another lawsuit against the state of Wisconsin and the Department of Natural Resources in Iron County on March 10. The tribe and other Wisconsin residents filed suit to stop rock sampling and all other mining activity in Wisconsin’s Penokee Range. The group argues that Gogebic Taconite’s spring excavation could lead to contaminated runoff.

Colette Routel, Associate Professor of Law at the William Mitchell College of Law, told the MacIver Institute that no attorneys from the school are currently representing any tribes in the Gogebic lawsuit and that the federal grant from DOJ cannot be used for civil cases.

“William Mitchell is not currently representing any Indian tribe or any other entity in the Gogebic mine lawsuit,” Routel said. “No money relating to the U.S. DOJ grant that we received in 2013 will ever be used to fund the Gogebic mine lawsuit or any other civil litigation. That grant is specifically limited to criminal work for tribes in tribal court, and we are performing that work now.”

The law professor did leave the door open for the school to represent the tribes in the Gogebic case in the future. Routel also said the state was wrong to claim that the tribes were able to use federal funds to pay for legal expenses.

“No federal funds were used to fund the Tribes’ 2013 request for the ability to engage in nighttime deer hunting pursuant to their treaties with the United States,” she said in an email. “The District Court was led astray by the State’s inaccurate submission claiming otherwise.”