Okay, great, great.
Thank you so much, Tracy, for your
time in this interview today.
We really, really appreciate it.
Thank you for having me.
So to begin, just for
our records, can I have you slowly
say and spell your
first and last name.
My first name is Tori,
T-O-R-E-Y.
My last name is Dolan, D-O
L.
A N.
Great.
And can I?
I have your title in this role for
us today.
I'm an assistant professor of law at
the University of Wisconsin Law
School.
Great.
And lastly, if any, can
I have your tribal affiliation?
I'm a citizen of the
Choctaw Nation.
Of Oklahoma.
Okay great and your location
today?
I'm currently in my office in
Madison, Wisconsin at the University
of Wisconsin Law School.
Okay, thank you.
So this is really a
big story here in Wisconsin
that people across the
state, especially in Northern
Wisconsin, Northwoods are talking
about.
But to begin kind of in the broad
sense, when people hear that
LAC de Flambeau is a sovereign
nation, what does that mean?
Yeah, so the
United States Constitution
recognizes that
Congress has the ability to regulate
its relationship with
Indian tribes, and in
recognizing that they recognize
Indian tribes as sovereign,
meaning that they have the ability
to govern themselves and their
territory that predates
the United states.
And so when we talk about Lacta
Flambeau being sovereign What we
mean is that they have the ability
to set their own laws and
be governed by them,
both their membership and their
lands.
Okay, and so
when we talk about they can govern
themselves, what does
that mean for the communities
that are around them?
Well, Lacta
Flambeau's reservation is
checkerboarded, meaning that there
is a predominant non-Indian
community in the area.
And so often what that means is that
non-indian neighbors are
intersecting with tribal law in
interesting ways.
The tribe retains the
inherent sovereignty, meaning it's
always existed within them, to
regulate civil
jurisdiction in their area
on certain matters.
It gets very fact-specific and
complicated depending on what
the tribe is attempting to regulate,
how the tribe is attempting, to
regulate when it comes to
non-Indians or non-indian land.
But generally just being in
tribal territory you are going to
interact with tribal law in some
capacity.
So when that happens, when the
tribe says they're exercising their
sovereignty or exercising their
rights, is that what that means?
Yeah, it means that they're
exercising their ability to have a
say over what happens in their
territory and in their community.
So when we say their
territory, can you explain what
does ceded territory mean
here in Wisconsin?
Yes, so ceded territory
usually refers to lands that
were subject to
a treaty, meaning
that the tribe gives up certain
rights over certain lands
that they had prior to
Europeans arriving on
the continent and in
exchange they secure a
set of rights in a treaty.
Many of those rights they already
had.
Some rights are going to be newly
recognized.
From the United States, such as
payment for seeded
lands or protection from
other Europeans
or protection for non-Indian
communities.
And so here in Wisconsin,
there are a number of
seeded land from
Ojibwe, Menominee
and other folks.
I would say the only lands in
Wisconsin that are not ceded from
the local tribe would be
the Oneida because the
Oneid are originally from New
York and were forcibly removed
to Wisconsin.
So there are 12 tribes in
Wisconsin and we know that we have
11 that are federally recognized,
but each one has a different story
it sounds like.
Yes, each has a different story
subject to different treaties and
each tribe has different
relationships with each other
because many
tribes were part of
confederacies or political alliances
or come from the
same group.
So there are a number of Ojibwe
tribes in Wisconsin, for example.
Mm-hmm.
And when we say territories, does
that also include waters?
Yes.
Okay.
And in regards to Lactaflambo,
we're looking at three cases.
And speaking of waters, let's dive
into the case of the fishing
and the walleye fish
and muskelenji, which has had
a long history with
tribal members and community members
in Wisconsin.
Oftentimes, in the past,
it was very contentious
and dangerous.
Where we are now with
this case is that they
have said that due to environmental
factors and other factors, they
don't want non-tribal people fishing
on 19 of their lakes,
but they have 260 lakes.
So they said, for these 19 lakes,
due to various reasons, we don't
non-Tribal members
to fish on 19
of these lakes, and we're putting an
injunction on it.
We're saying that you can't fish
here, and it now has ended up in
federal court.
So as a sovereign nation,
how do these cases end up
in Federal Court?
So, usually these cases dealing
with hunting and fishing regulation,
especially as they're related to the
environment, end up in federal
court, often because
non-Indians are challenging
the tribe's ability to regulate
them in this way.
I'll note that navigable
waters are subject to
a distinct legal standard within the
United States, and it's different
from regulating land,
and its different from regulation
tribal land.
Now, here in this instance, the
tribe is very concerned about the
walleye in the muskie population,
and the
Supreme Court has recognized that
Indian tribes retain the inherent
sovereignty to regulate
non-members in
certain instances when the
behavior of non- members is going to
affect the health, safety,
economic security, or welfare of the
tribe. And so, from the tribe's
perspective here...
Walleye and Muskie are very
important to the tribe's
subsistence, to the tribes' culture.
And so from their perspective,
protecting the population in these
19 lakes necessitates
them regulating non-Indians
in this way.
Now, on the other
side, folks argue that the
tribe doesn't retain the ability to
regulate non-members, and that's not
a part of the right that's
guaranteed in the treaty.
But I will note that treaties don't
contain the entirety of
a tribe's sovereignty.
They're just explicit reservation
of rights secured
at that time, but that doesn't mean
it's the maximum of tribal power.
So are there limits
within
treaty rights in terms of
their rights and then who they can
govern?
Yes, yes.
So I will note that
the tribes here have very
strong hunting and fishing
rights for themselves.
Regulating other people is
a different matter.
So in the past, the federal court
has recognized that tribes here
do not have jurisdiction
over navigable waters and
do not have the ability to
regulate non-Indians
pursuant to those treaties.
There are other instances in the
country where courts have recognized
tribal power over navigable waters
pursuant to treaties, and
in part because there was
a distinct property
regime laid out in those treaties,
but here in this instance,
as I see it, it seems to
me that the tribe is trying to
exercise a degree of inherent
sovereignty that might
be distinct from the treaty itself.
So it's almost like a
new element to their treaty or
an addendum to their treaty.
It's a degree of sovereignty that
exists outside the treaty.
So imagine that you
know before colonists come to the
United States, the tribe has
a whole pizza pie right
and the treaty
is one slice of the
pie that they decided to give away.
The tribe has the remaining pieces
and so inherent sovereignty might
be a part of that those remaining
pieces.
Okay. Thank you for explaining that.
Again, in regards to
Lac du Flambeau, beyond
rivers and waters and territory,
property owners there are suing
Lac du Flembeau Lake Superior
of Chippewa for allegedly
restricting their access to
a boat launch that's on private
property, but also on the
reservation.
So first, why are there so many
non-tribal members owning property
on the Lac du Flambeau reservation.
Yeah, so in the 19th century,
Congress
implemented this policy called
allotment.
And the idea was that where
tribes own things in common,
meaning all members
and the tribe itself owns the
property, they decided to
break up that communal title and
parcel out individual parcels
of land to different families and
then sell the surplus.
The process of selling the surplus
land within the reservation is
what led to these checkerboarded
reservations that we see today,
where there are significant
populations of non-Indians that
own fee land within the exterior
reservation boundaries.
So the non-tribal members that
own free land within Lacta
Flambeau,
one has attempted to
build a boat launch to
one of these restricted lakes from
the private property.
And this is the dispute
at issue.
Now, from
the homeowner's perspective,
you know, they
view it as I'm not a member,
I'm subject to this tribe's
jurisdiction, and this my land that
I own in fee, meaning
under state title.
But from the tribe's perspective
that goes back to the inherent
sovereignty element that I
mentioned, where the court has
recognized that there are some
instances where
tribes do have the ability to
regulate non-member conduct on
fee land within the exterior
reservation as part of their
inherent sovereignty.
And so that's the dispute.
Is this environmental situation one
that justifies the tribe
having civil authority over
fee land within the reservation.
Thank you for explaining that.
So the association
went to tribal court and lost,
and the tribe won, and then they
elevated it to federal court.
How can that happen?
How come it's not ended at
the tribal court made a decision and
that's that?
Um, the reason that
things don't end at tribal court is
because it's a, it's
a contest of jurisdiction,
which tribal jurisdiction over
non-members has been deemed to
be a question of federal
law, but there is a doctrine called
the tribal court exhaustion
doctrine, meaning that before
you can go to federal court and
challenge the tribe's ability to
exercise authority over you, you
have to exhaust all of the
available remedies within
the tribal government.
So once a plaintiff has
done that, then they can
enter into federal court
to challenge the tribe's
exercise of jurisdiction at all.
So, it seems like
there's a lot of steps that happen
before it can reach federal court.
Yes.
Okay.
And going back to the Dawes Act,
when did it end and is it still
playing a role in to flambeau.
It's certainly still playing a role
in Lacta Flambeau because many
of those parcels that were,
you know, removed from tribal
ownership,
they're now the parcels of
land that are subject to dispute or
access to those parceles of land
is what's subject to the dispute in
the road cases.
And so it continues to impact
the tribe's ability to govern today
because I'm sure people can
imagine.
You know, when you're trying to
regulate the environment of an
entire reservation, but you
have parcel A and parcel B and
parcel C that you have
to prove your authority
over, well then it gets really
hard to protect the entire
environment, because you
have to prove your
case for all of these
broken up parcels within your
territory.
And who broke up those parcels?
Congress.
Congress did that, through the Doss
Act. Yes.
And created that checkerboard that
we're speaking about.
Yes, so the Congress created
the Dawes Act, which authorized
Indian agents to go into
tribal communities parcel out
the communal land, sell the
surplus. And so it's
that process that has created
the checkerboard pattern today.
Part of the Daw's Act was motivated
by this belief that the tribes would
disappear, that eventually
tribal people would die out
or assimilate and be
indistinguishable from non-Indian
populations.
And so because of
that...
That's why we have so many legal
and political issues today because
they really didn't expect tribes
and tribal people to endure.
And they didn't disappear.
We did not.
Right, right, right.
They didn't disappear and still
asserting their tribal
sovereignty.
So in the case of the Four Roads,
those roads were
essentially
chopped up and checkerboard
during the Dawes Act.
Is that why they lost that case?
Well, so the roads themselves
are on tribal land, but
these are the roads that access
these private parcels,
because when Congress chopped
up, you know,
these reservations and these parcels
of land, it was before
cars and before the massive
roadway infrastructure that we have.
So, after,
you know, these parcels were divided
up in the 1950s,
I believe, the Bureau of Indian
Affairs.
Agreed to some easements
over these
tribal lands and that's how these
roads were made.
Now the reason that the Bureau
of Indian Affairs had the
authority to do that is because
legally within the United States
the federal government holds
the title to tribal land for
the benefit of Indian tribes.
So there's been a long history of
the United states exercising that
legal authority to make decisions
without consulting the tribe.
Now. Bureau of Indian Affairs
approved these leases
or these easements for
these roads, but they were temporary
and they expired.
And so once they expired,
the tribe wanted to
engage in negotiation with
the village and the township
to renew these easement,
but the tribe wanted payment and the
tribe did not want to
authorize permanent easements.
Because once you authorize a
permanent easement that means that
you give away that property right
forever.
And so because these
private parcels of land that arose
during the Dawes Act, people bought
them and they needed a way to
get to them.
The Bureau of Indian Affairs
approved these easements and
once they expired, the tribe
sought to assert their property
rights by closing these roads.
And that's what led to that lawsuit.
Why is it important for Lacta
Flambeau to get their laws enforced?
It's important for the, for Lacta
Flambeau to get their laws enforced
because there's
nowhere else in the world where
Lactaflo, Lactoflambeau sovereignty
is governing,
right?
This land, this territory
is very important to them,
you know,
for folks who have been to the area,
you know, the tribe is very present
in the community.
The lakes there, you
know, holds their clan
stories, their religion.
And so their ability to
enforce their own laws means their
ability to continue to exist as a
people, to continue to exist in
their territory, and to
protect the area to ensure that
seven generations from now,
Lacta Flambeau people can continue
to exists there.
And so every time that sovereignty
is chipped away in a tribe's
territory, it's
really devastating because tribal
sovereignty exists in our
communities.
And not outside them.
So we have to protect every bit of
sovereignty we can.
And they keep fighting
it, you know, in such a
short time we're seeing these cases.
What does that say about the tribe?
And also does that cost money to
keep having to go to court?
It costs a massive amount
of money.
And, you know, Lacta Fembo
is in this situation where they have
these three different cases, three
different issues.
So that gets very, very expensive,
because these are all distinct
cases with distinct
legal issues that take their own
time and research.
And you know it's very
hard on tribal leadership when
these moments come up, because, you
know, essentially tribal leadership
has to decide, do we fight this?
Do we spend that money,
which often means taking
money from community services,
from health centers, from schools,
from other vital services?
Do we sacrifice those things
to protect sovereignty in the long
run? And those are really difficult
political decisions.
I really don't envy any tribal
leader that's in that situation.
But I think from
what I've seen from statements from
tribal leadership, and from
the way the tribe has asserted
its rights,
they recognize that
these are existential fights
about the future and the continued
existence of the tribe and
they're going to fight them.
And as we finish
up, you know, these are three
distinct cases
recently with them.
There's frustration for tribal
members. There's also frustration
for non-tribal members.
And I was at one hearing, and
the judge said consistently that
he wants the tribe to work on
their state-to-state relationship as
a tribe with the state of Wisconsin.
What do you think is going to happen
moving forward?
It's hard to predict what's going to
happen, and I will
say, you know, this
exists in the context of
decades and decades and decades of
conflict, especially when it comes
to fishing.
So, you, know,
history runs deep in the Northwoods,
for sure.
But my hope
is that, you know, especially
as we're dealing with more and more
consequences of climate change,
I hope folks in the Northwoods.
You know, tribal members and
non-tribal members, will view tribal
sovereignty as an asset, you
know? It's an additional layer of
protection that can be exercised
to protect the environment, to
protect a community, to protect the
walleye, to the protect the muskie
fish.
And while, you now, these things
are hard in the immediate
moment, I hope
that folks can come together on
all sides of the issue, you know
DNR, Lacta Flambeau, the
fish hatcheries, the
recreational fishers, the tribal
members.
I hope they can all come together
and find commonality
in the fact that everybody
up there loves the land.
The Northwoods are beautiful, and I
think everybody wants to protect the
Northwood.
Thank you.
Thank you for that, Tori.
I think we'll end on that note.
Thank you so much.
Thank you.
All right, so I think we
are good.
We have everything.
I was wondering if you have, do you
have any published books or anything
with your name on the cover that you
could send pictures to us if I
needed some B-roll footage?
Yeah, I don't have, um,
books, I have law review articles,
and then I've, uh, I
have some,
I filed a couple of Supreme Court
briefs.
I have one that has my name on the
front that's printed.
Oh, wait, actually I do have
printouts. Yes, I can send you that.
Yep, send them to me if you know if
you or if you had any photos of you
teaching in the classroom pointing
at a whiteboard or wall
just for any background footage I
can play around since you weren't
able to come to the office today.
Yes.
Yes, absolutely.
All right, so email those to me when
you can.
And this is due to air this week,
but if not, then it'll be the
following week. So I'll keep you
posted.
Okay, sounds great.
All right. Thank you, Tori.
I appreciate your time.
Yeah, thank you so much.
All right, take care, bye-bye.