You
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 Tory T O R E Y
My last name is Dolan D O L A M
Great, and can 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 in Wisconsin that people across the state, especially in northern Wisconsin, north woods are talking about
But to begin kind of in a broad sense when people hear that
Lactoflambo 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 Lactoflambo 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 and they can govern themselves
What does that mean for the communities that are around them?
Well
Lactoflambo'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
Um, the tribe retains the inherent sovereignty meaning that it's always existed within them
um to
regulate civil jurisdiction in their area
on certain matters
Um, it gets very back specific and complicated depending on what the tribe is attempting to regulate
How the tribe is attempting to regulate
Um when it comes to non-indians or non-Indian lands
But generally just being in tribal territory you are going to interact with tribal law in some capacity
So when that happens when the tribes says they're exercising their their sovereignty or exercising their their 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
Okay, so when we say their territory, can you explain what does seated territory mean here in Wisconsin?
Yes, so seated territory usually refers to lands that were subject to
um a treaty meaning that the tribe gives up certain rights over certain lands that they had prior to
um Europeans
arriving on the continent
And in exchange they secure a set of rights
in a treaty many of those rights they already had
um some rights are going to be newly recognized
from the united states such as
payment
uh for seated lands or protection
um from
you know
other
Europeans or protection from non-indian communities
And so here in Wisconsin, um, there are a number of seated lands from ojibwe, manamini
um and other folks
I would say the only lands in wisconsin that are not seated from the local tribe would be
um the onida
Because the onida are originally from new york and were forcibly removed to wisconsin
So it's it's it's there are 12 tribes in wisconsin and you know that we have a 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
um 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
And when we say territories, is that also include waters?
Yes
Okay
And in regards to lactoflambo, we're looking at three cases and speaking of waters
Let's dive into the case of the fishing and the walleye fish and muskolangi, which has had a
a long history
With travel members and community members in wisconsin and oftentimes in the past it was very contentious and dangerous
Where we are now with this case is that um, 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 want 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 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
um
I'll note that
Navigable waters are subject to a distinct illegal standard within the united states and it's different from regulating
Um land and it's different from regulating tribal land
Now here in this instance, the tribe is very concerned about the walleye and the musky population
and
The supreme court has recognized that indian tribes retain the inherent sovereignty
to regulate non-members
um 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
um walleye and musky are very important to the tribe's subsistence to the tribe's culture
and so from their perspective protecting the population in these 19 lakes
um
necessitates them regulating non-indians in this way
now
um on the other side folks argue that you know 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
um
secured at that time, but that doesn't mean it's the maximum of tribal power
So are there limits within um
treaty rights in terms of of of their rights and then who they can govern
Yes, yes, so um
I will note that the the tribes here have very strong
hunting and fishing rights for themselves
um regulating other people is a different matter so in the past the federal court has recognized that tribes here um
do not have jurisdiction over navigable waters and do not have the ability to
regulate
um non-indians pursuant to those treaties
um
There are other instances in the country where courts have recognized tribal power over navigable waters pursuant to treaties
um and in part because there was a distinct
property regime laid out in those treaties, but here in this instance um
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
Mm-hmm. So is it's um
It's like a new element to their treaty or an identity 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
um again in regards to lack de flambeau beyond uh rivers and waters and in territory property owners
There are suing lack de flambeau
Lakes period of Chippewa for allegedly restricting their access to a boat launch that's on private property
But also on the reservation so far as why are there so many non-tribal members owning
property on the lack de 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
Um 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
Um 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 fee land within lack de 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 homeowners perspective, you know
They view it as i'm not a member
I'm not subject to this tribe's jurisdiction and this is my land that I own
In fee meaning under state title
um
But from the tribes 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
The association went to tribal court and lost in the tribe one and then they um elevated it to federal court
How can that happen? How come it's not ended at the tribal court made a decision and and that's that
Um, it 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 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
Yes, okay, and going back to the does act when did it end and is it still playing a role in lactaflambo?
It's certainly still playing a role in lactaflambo because many of those parcels that were
um
You know removed from tribal ownership
Um, they're now they're now the parcels of land that are subject to dispute or access to those parcels of land is what subject to dispute in the road cases
Um, 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 does act. Yes
In created that checker board that we're that we're speaking about
Yes, so the the congress created the does act which authorized
Indian agents to go into tribal communities parcel at the communal land
Sell the surplus and so it's that process that has created the checker board pattern today
Um part of the does 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
um
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. They they they didn't disappear and still asserting asserting their tribal sovereignty
So in the case of the four roads those those roads were
um
Essentially chopped up and checker board during the does 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
Um, you know these reservations and these parcels of land
It was before cars and before the massive roadway infrastructure that we have
so after um, you know, these parcels were divided up
in the 1950s. I believe the bureau of indian affairs
Um, agreed to some easements
Um, 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 the 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, um, the tribe wanted to
engage in negotiation with the village and the township
Um, to renew these easements, 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 doz 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
um
And that's what led to that lawsuit
Why is it important for lack to flambo to get their laws enforced?
It's important for the for lack to flambo to get their laws enforced because
There's nowhere else in the world where lack to flow but lack to flambo sovereignty
Um is governing right this land this territory is very important to them
um
You know for folks who have been to the area, you know, the tribe is very present in the community
um
The lakes there, you know holds their their clan stories their religion
um
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
Um, lack to flambo people can continue to exist there
And so every time that sovereignty is chipped away in a tribe's territory
um, it's really devastating because tribal sovereignty
exists in our communities and um
Not outside them. So we have to protect every bit of sovereignty we can't
And they keep fighting it, you know, um in such a short time where 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
Lactifambo is in this situation where they have these three different cases three different issues
Um, 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. Um when these moments come up because you know, essentially
tribal leadership has to decide do we fight this? Do we spend that money?
Um, which often means taking money from community services
Um from health centers from schools from other vital services
Um, you know, 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 um from what I've seen from statements from tribal leadership and from the way the tribe has asserted its rights
Um
You know, 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
Um, and I was at one hearing and the judge was 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. Um, 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, um
You know, history runs deep in the north woods for sure
but um
My hope is that you know, especially as we're dealing with more and more
Consequences of climate change. I hope folks in the north woods
Um, 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 the community to protect the walleye to protect the musky fish
And while, you know, these things are hard in the immediate moment
Um, I hope that folks can come together on all sides of the issue, you know, dnr lactoflambo the fish hatcheries the
The recreational fishers the tribal members. Um
I hope they can all come together and you know, find commonality in the fact that
Everybody up there loves the land. The north woods are beautiful and I think everybody wants to protect the north woods
Thank you. Thank you for that tori. I think we'll end on that note. Thank you so much. Thank you
Thank you
All right. So I think we are good
Um, we have any have everything I was wondering if you have do you have any published books or anything with your name on the cover?
That you can 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 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
Yeah, so send them to me if you know if you or if you had any photos of you teaching in the classroom
Um pointing out a whiteboard or a 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 the email goes to me when you can and this is due to air this week
But um, 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