WEBVTT 00:00.000 --> 00:02.000 You 00:30.800 --> 00:37.720 Okay, great great. Thank you so much Tracy for your time in this interview today. We really really appreciate it 00:38.920 --> 00:40.920 Thank you for having me 00:41.120 --> 00:47.960 So to begin just for our records, can I have you slowly say and spell your first and last name? 00:48.720 --> 00:53.120 My first name is Tory T O R E Y 00:53.680 --> 00:57.560 My last name is Dolan D O L A M 00:58.520 --> 01:02.280 Great, and can I have your title in this role for us today? 01:02.760 --> 01:06.920 I'm an assistant professor of law at the University of Wisconsin Law School 01:07.360 --> 01:12.120 Great, and lastly if any can I have your tribal affiliation? 01:12.920 --> 01:16.160 I'm a citizen of the Choctaw Nation of Oklahoma 01:16.800 --> 01:19.240 Okay, great and your location today 01:19.800 --> 01:24.880 I'm currently in my office in Madison, Wisconsin at the University of Wisconsin Law School 01:25.440 --> 01:27.200 Okay, thank you 01:27.200 --> 01:29.440 so this is really a 01:30.240 --> 01:37.640 Big story here in in Wisconsin that people across the state, especially in northern Wisconsin, north woods are talking about 01:38.400 --> 01:42.080 But to begin kind of in a broad sense when people hear that 01:42.560 --> 01:46.320 Lactoflambo is a sovereign nation. What does that mean? 01:47.360 --> 01:48.960 Yeah, so 01:49.280 --> 01:51.280 The United States Constitution 01:51.280 --> 01:56.080 recognizes that Congress has the ability to regulate its relationship 01:56.560 --> 02:01.840 with Indian tribes and in recognizing that they recognize Indian tribes as sovereign 02:02.800 --> 02:08.960 Meaning that they have the ability to govern themselves and their territory that predates the United States 02:09.600 --> 02:12.640 And so when we talk about Lactoflambo being sovereign 02:13.040 --> 02:18.480 What we mean is that they have the ability to set their own laws and be governed by them 02:19.120 --> 02:21.120 Both their membership and their lands 02:21.680 --> 02:25.600 Okay, and so when we talk about and they can govern themselves 02:26.400 --> 02:30.080 What does that mean for the communities that are around them? 02:32.160 --> 02:33.680 Well 02:33.680 --> 02:35.680 Lactoflambo's reservation 02:36.800 --> 02:39.680 Is checkerboarded meaning that there is a 02:40.240 --> 02:45.360 predominant non-Indian community in the area and so often what that means is that 02:46.320 --> 02:51.280 Non-Indian neighbors are intersecting with tribal law in interesting ways 02:51.920 --> 02:57.280 Um, the tribe retains the inherent sovereignty meaning that it's always existed within them 02:57.840 --> 02:59.840 um to 02:59.840 --> 03:02.800 regulate civil jurisdiction in their area 03:03.680 --> 03:05.360 on certain matters 03:05.360 --> 03:11.280 Um, it gets very back specific and complicated depending on what the tribe is attempting to regulate 03:11.600 --> 03:13.600 How the tribe is attempting to regulate 03:14.080 --> 03:16.720 Um when it comes to non-indians or non-Indian lands 03:17.360 --> 03:23.680 But generally just being in tribal territory you are going to interact with tribal law in some capacity 03:24.800 --> 03:31.920 So when that happens when the tribes says they're exercising their their sovereignty or exercising their their their rights 03:32.000 --> 03:33.520 Is that what that means? 03:33.520 --> 03:40.640 Yeah, it means that they're exercising their ability to have a say over what happens in their territory and in their community 03:41.280 --> 03:47.840 Okay, so when we say their territory, can you explain what does seated territory mean here in Wisconsin? 03:48.640 --> 03:53.760 Yes, so seated territory usually refers to lands that were subject to 03:54.480 --> 04:02.240 um a treaty meaning that the tribe gives up certain rights over certain lands that they had prior to 04:02.880 --> 04:04.640 um Europeans 04:04.640 --> 04:06.560 arriving on the continent 04:06.560 --> 04:09.840 And in exchange they secure a set of rights 04:10.400 --> 04:12.720 in a treaty many of those rights they already had 04:13.200 --> 04:15.840 um some rights are going to be newly recognized 04:16.560 --> 04:18.560 from the united states such as 04:18.960 --> 04:20.000 payment 04:20.000 --> 04:22.320 uh for seated lands or protection 04:22.960 --> 04:24.560 um from 04:24.560 --> 04:25.680 you know 04:25.680 --> 04:26.240 other 04:26.240 --> 04:29.440 Europeans or protection from non-indian communities 04:30.080 --> 04:38.240 And so here in Wisconsin, um, there are a number of seated lands from ojibwe, manamini 04:39.040 --> 04:40.720 um and other folks 04:41.200 --> 04:46.400 I would say the only lands in wisconsin that are not seated from the local tribe would be 04:46.800 --> 04:48.480 um the onida 04:48.480 --> 04:53.600 Because the onida are originally from new york and were forcibly removed to wisconsin 04:54.400 --> 05:01.120 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 05:01.200 --> 05:06.880 But each one has a different story. It sounds like yes each has a different story subject to different treaties 05:07.360 --> 05:11.040 um and each tribe has different relationships with each other 05:11.680 --> 05:12.880 because 05:12.880 --> 05:18.960 many tribes were part of confederacies or political alliances or come from 05:19.600 --> 05:24.160 The same group. So there are a number of ojibwe tribes in wisconsin for example 05:25.440 --> 05:28.480 And when we say territories, is that also include waters? 05:29.680 --> 05:31.680 Yes 05:31.680 --> 05:32.480 Okay 05:32.480 --> 05:36.800 And in regards to lactoflambo, we're looking at three cases and speaking of waters 05:36.800 --> 05:42.800 Let's dive into the case of the fishing and the walleye fish and muskolangi, which has had a 05:43.520 --> 05:45.360 a long history 05:45.360 --> 05:52.560 With travel members and community members in wisconsin and oftentimes in the past it was very contentious and dangerous 05:54.160 --> 05:58.560 Where we are now with this case is that um, they have said that 05:59.040 --> 06:01.680 Due to environmental factors and other factors 06:01.680 --> 06:07.920 They don't want non-tribal people fishing on 19 of their lakes, but they have 260 lakes 06:08.080 --> 06:11.280 So they said for these 19 lakes due to various reasons 06:11.280 --> 06:18.400 We don't want non-tribal members to fish on 19 of these lakes and we're putting an injunction on it 06:18.400 --> 06:22.480 We're saying that you can't fish here and it now has ended up in in federal court 06:23.200 --> 06:27.920 So as a sovereign nation, how do these cases end up in federal court? 06:29.040 --> 06:35.040 So usually these cases dealing with hunting and fishing regulation, especially as they're related to the environment 06:35.120 --> 06:37.120 end up in federal court 06:37.120 --> 06:43.200 Often because non-indians are challenging the tribe's ability to regulate them in this way 06:43.840 --> 06:44.720 um 06:44.720 --> 06:46.560 I'll note that 06:46.560 --> 06:54.000 Navigable waters are subject to a distinct illegal standard within the united states and it's different from regulating 06:54.640 --> 06:58.240 Um land and it's different from regulating tribal land 06:58.800 --> 07:03.840 Now here in this instance, the tribe is very concerned about the walleye and the musky population 07:04.480 --> 07:05.360 and 07:05.360 --> 07:10.160 The supreme court has recognized that indian tribes retain the inherent sovereignty 07:10.800 --> 07:12.800 to regulate non-members 07:13.440 --> 07:15.440 um in certain instances when 07:16.160 --> 07:22.880 The behavior of non-members is going to affect the health safety economic security or welfare of the tribe 07:23.440 --> 07:25.520 and so from the tribe's perspective here 07:26.080 --> 07:31.840 um walleye and musky are very important to the tribe's subsistence to the tribe's culture 07:32.480 --> 07:37.200 and so from their perspective protecting the population in these 19 lakes 07:37.760 --> 07:39.040 um 07:39.040 --> 07:42.400 necessitates them regulating non-indians in this way 07:43.120 --> 07:44.240 now 07:44.240 --> 07:51.280 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 07:51.280 --> 07:52.880 that's guaranteed 07:52.880 --> 07:54.160 in the treaty 07:54.160 --> 07:56.160 But I will note that treaties don't 07:57.040 --> 08:03.200 Contain the entirety of a tribe's sovereignty. They're just explicit reservation of rights 08:03.520 --> 08:04.320 um 08:04.320 --> 08:08.320 secured at that time, but that doesn't mean it's the maximum of tribal power 08:09.440 --> 08:12.640 So are there limits within um 08:13.760 --> 08:17.760 treaty rights in terms of of of their rights and then who they can govern 08:18.640 --> 08:20.640 Yes, yes, so um 08:21.120 --> 08:24.800 I will note that the the tribes here have very strong 08:25.600 --> 08:27.600 hunting and fishing rights for themselves 08:28.240 --> 08:36.160 um regulating other people is a different matter so in the past the federal court has recognized that tribes here um 08:36.800 --> 08:41.360 do not have jurisdiction over navigable waters and do not have the ability to 08:42.000 --> 08:43.360 regulate 08:43.360 --> 08:45.840 um non-indians pursuant to those treaties 08:46.400 --> 08:46.880 um 08:46.880 --> 08:53.760 There are other instances in the country where courts have recognized tribal power over navigable waters pursuant to treaties 08:54.320 --> 08:57.600 um and in part because there was a distinct 08:58.320 --> 09:03.520 property regime laid out in those treaties, but here in this instance um 09:04.560 --> 09:09.840 As I see it, it seems to me that the tribe is trying to exercise a degree of inherent sovereignty 09:10.400 --> 09:13.360 That might be distinct from the treaty itself 09:14.000 --> 09:16.000 Mm-hmm. So is it's um 09:16.560 --> 09:20.560 It's like a new element to their treaty or an identity to their treaty 09:21.120 --> 09:24.080 It's a degree of sovereignty that exists outside the treaty 09:24.400 --> 09:31.520 So imagine that you know before colonists come to the united states the tribe has a whole pizza pie 09:32.080 --> 09:37.520 Right and the treaty is one slice of the pie that they decided to give away 09:38.320 --> 09:44.480 The tribe has the remaining pieces and so inherent sovereignty might be a part of that those remaining pieces 09:45.680 --> 09:47.680 Okay, thank you for explaining that 09:47.840 --> 09:55.440 um again in regards to lack de flambeau beyond uh rivers and waters and in territory property owners 09:55.840 --> 09:57.600 There are suing lack de flambeau 09:58.160 --> 10:04.320 Lakes period of Chippewa for allegedly restricting their access to a boat launch that's on private property 10:04.560 --> 10:10.560 But also on the reservation so far as why are there so many non-tribal members owning 10:11.040 --> 10:13.600 property on the lack de flambeau reservation 10:14.640 --> 10:16.640 Yeah, so in the 19th century 10:18.640 --> 10:26.480 Congress implemented this policy called allotment and the idea was that where tribes own things in common meaning 10:27.280 --> 10:30.800 Um all members and the tribe itself owns the property 10:31.200 --> 10:33.920 They decided to break up that communal title 10:34.480 --> 10:40.400 And parcel out individual parcels of land to different families and then sell the surplus 10:41.040 --> 10:44.720 Um the process of selling the surplus land within the reservation 10:45.280 --> 10:52.160 Is what led to these checkerboarded reservations that we see today where there are significant populations of non-indians 10:52.560 --> 10:56.080 That own fee land within the exterior reservation boundaries 10:56.640 --> 11:01.120 So the non-tribal members that own fee land within lack de flambeau 11:02.720 --> 11:04.720 One has attempted to 11:05.280 --> 11:09.680 Build a boat launch to one of these restricted lakes from the private property 11:10.320 --> 11:17.200 And this is the dispute at issue now from the homeowners perspective, you know 11:18.560 --> 11:20.560 They view it as i'm not a member 11:21.040 --> 11:24.480 I'm not subject to this tribe's jurisdiction and this is my land that I own 11:25.120 --> 11:27.680 In fee meaning under state title 11:28.400 --> 11:29.440 um 11:29.440 --> 11:34.160 But from the tribes perspective that goes back to the inherent sovereignty element that I mentioned 11:34.640 --> 11:37.360 Where the court has recognized that there are some instances 11:38.080 --> 11:46.400 Where tribes do have the ability to regulate non-member conduct on fee land within the exterior reservation as part of their 11:46.720 --> 11:48.400 Inherent sovereignty 11:48.400 --> 11:57.120 And so that's the dispute. Is this environmental situation one that justifies the tribe having civil authority over 11:57.680 --> 11:59.680 fee land within the reservation? 12:00.080 --> 12:02.080 Thank you for explaining that. So the 12:03.120 --> 12:10.800 The association went to tribal court and lost in the tribe one and then they um elevated it to federal court 12:10.800 --> 12:17.040 How can that happen? How come it's not ended at the tribal court made a decision and and that's that 12:18.320 --> 12:25.440 Um, it the reason that things don't end at tribal court is because it's a it's a contest of jurisdiction 12:26.000 --> 12:31.680 Which tribal jurisdiction over non-members has been deemed to be a question of federal law 12:32.160 --> 12:35.200 But there is a doctrine called the tribal court exhaustion doctrine 12:35.440 --> 12:40.640 Meaning that before you can go to federal court and challenge the tribe's ability to exercise authority over 12:41.360 --> 12:46.640 You have to exhaust all of the available remedies within the tribal government 12:47.200 --> 12:49.600 So once a plaintiff has done that 12:50.240 --> 12:56.560 Then they can enter into federal court to challenge the tribe's exercise of jurisdiction at all 12:58.080 --> 13:04.240 So it seems like there's a lot of steps that happen before it can reach federal court. Yes 13:05.200 --> 13:12.800 Yes, okay, and going back to the does act when did it end and is it still playing a role in lactaflambo? 13:14.000 --> 13:19.280 It's certainly still playing a role in lactaflambo because many of those parcels that were 13:19.920 --> 13:20.880 um 13:20.880 --> 13:23.440 You know removed from tribal ownership 13:24.240 --> 13:32.800 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 13:33.440 --> 13:40.000 Um, and so it continues to impact the tribe's ability to govern today because i'm sure people can imagine 13:40.560 --> 13:44.720 You know when you're trying to regulate the environment of an entire reservation 13:45.200 --> 13:49.360 But you have parcel a and parcel b and parcel c that you have 13:50.080 --> 13:52.080 to prove your authority over 13:52.480 --> 13:57.760 Well, then it gets really hard to protect the entire environment because you have to 13:58.560 --> 14:03.440 Prove your case for all of these broken up parcels within your territory 14:04.480 --> 14:06.640 And who broke up those parcels? 14:07.440 --> 14:08.560 Congress 14:08.560 --> 14:10.480 Congress did that through the does act. Yes 14:11.120 --> 14:13.840 In created that checker board that we're that we're speaking about 14:14.240 --> 14:17.760 Yes, so the the congress created the does act which authorized 14:18.240 --> 14:23.040 Indian agents to go into tribal communities parcel at the communal land 14:23.600 --> 14:29.440 Sell the surplus and so it's that process that has created the checker board pattern today 14:30.080 --> 14:34.240 Um part of the does act was motivated by this belief that the tribes would disappear 14:34.880 --> 14:41.520 That eventually tribal people would die out or assimilate and be indistinguishable from non-indian populations 14:42.160 --> 14:44.160 and so because of that 14:44.480 --> 14:46.080 um 14:46.080 --> 14:51.360 That's why we have so many legal and political issues today because they really didn't expect 14:51.760 --> 14:53.760 tribes and tribal people to endure 14:55.440 --> 14:57.440 And they didn't disappear 14:57.440 --> 14:58.960 We did not 14:58.960 --> 15:04.720 Right, right. They they they didn't disappear and still asserting asserting their tribal sovereignty 15:05.760 --> 15:08.800 So in the case of the four roads those those roads were 15:09.680 --> 15:11.200 um 15:11.200 --> 15:16.640 Essentially chopped up and checker board during the does act. Is that why they lost that case? 15:17.600 --> 15:20.880 Well, so the roads themselves are on tribal land 15:21.280 --> 15:27.440 But these are the roads that access these private parcels because when congress chopped up 15:27.920 --> 15:30.880 Um, you know these reservations and these parcels of land 15:31.520 --> 15:35.840 It was before cars and before the massive roadway infrastructure that we have 15:36.480 --> 15:40.240 so after um, you know, these parcels were divided up 15:40.880 --> 15:44.800 in the 1950s. I believe the bureau of indian affairs 15:45.440 --> 15:47.920 Um, agreed to some easements 15:48.880 --> 15:52.240 Um, over these tribal lands and that's how these roads were made 15:52.800 --> 15:53.600 Now 15:53.600 --> 15:55.600 The reason that the bureau of indian affairs 15:56.080 --> 16:00.080 Had the authority to do that is because legally within the united states 16:00.560 --> 16:05.680 The federal government holds the title to tribal land for the benefit of indian tribes 16:06.080 --> 16:13.600 So there's been a long history of the united states exercising that legal authority to make decisions without consulting the tribe 16:14.240 --> 16:20.720 Now the bureau of indian affairs approved these leases or these easements for these roads 16:20.800 --> 16:27.840 but they were temporary and they expired and so once they expired, um, the tribe wanted to 16:28.720 --> 16:32.240 engage in negotiation with the village and the township 16:32.640 --> 16:37.920 Um, to renew these easements, but the tribe wanted payment and the tribe did not want to 16:38.480 --> 16:45.360 authorize permanent easements because once you authorize a permanent easement that means that you give away that property right forever 16:45.920 --> 16:47.040 And so 16:47.040 --> 16:51.920 Because these private parcels of land that arose during the doz act people bought them 16:52.400 --> 16:56.800 And they needed a way to get to them the bureau of indian affairs approved these easements 16:57.360 --> 17:02.800 And once they expired the tribe sought to assert their property rights by closing these roads 17:03.360 --> 17:04.240 um 17:04.240 --> 17:06.240 And that's what led to that lawsuit 17:07.200 --> 17:10.800 Why is it important for lack to flambo to get their laws enforced? 17:12.320 --> 17:16.000 It's important for the for lack to flambo to get their laws enforced because 17:16.720 --> 17:21.200 There's nowhere else in the world where lack to flow but lack to flambo sovereignty 17:21.920 --> 17:27.680 Um is governing right this land this territory is very important to them 17:28.240 --> 17:29.600 um 17:29.600 --> 17:35.200 You know for folks who have been to the area, you know, the tribe is very present in the community 17:35.760 --> 17:36.960 um 17:36.960 --> 17:42.000 The lakes there, you know holds their their clan stories their religion 17:42.880 --> 17:43.680 um 17:43.680 --> 17:49.120 And so their ability to enforce their own laws means their ability to continue to exist as a people 17:49.600 --> 17:51.600 To continue to exist in their territory 17:52.080 --> 17:56.400 And to protect the area to ensure that seven generations from now 17:56.960 --> 18:00.320 Um, lack to flambo people can continue to exist there 18:00.880 --> 18:04.960 And so every time that sovereignty is chipped away in a tribe's territory 18:05.600 --> 18:08.960 um, it's really devastating because tribal sovereignty 18:09.600 --> 18:12.640 exists in our communities and um 18:13.680 --> 18:17.200 Not outside them. So we have to protect every bit of sovereignty we can't 18:18.480 --> 18:24.640 And they keep fighting it, you know, um in such a short time where we're seeing these cases 18:25.200 --> 18:29.760 What does that say about the tribe and also does that cost money to keep having to go to court? 18:30.560 --> 18:34.480 It costs a massive amount of money and you know 18:35.280 --> 18:40.160 Lactifambo is in this situation where they have these three different cases three different issues 18:40.880 --> 18:45.040 Um, so that gets very very expensive because these are all distinct 18:45.600 --> 18:49.360 Cases with distinct legal issues that take their own time and research 18:50.160 --> 18:56.640 And you know, it's very hard on tribal leadership. Um when these moments come up because you know, essentially 18:57.200 --> 19:01.840 tribal leadership has to decide do we fight this? Do we spend that money? 19:02.480 --> 19:06.400 Um, which often means taking money from community services 19:06.960 --> 19:11.120 Um from health centers from schools from other vital services 19:11.920 --> 19:16.800 Um, you know, do we sacrifice those things to protect sovereignty in the long run? 19:17.280 --> 19:22.880 And those are really difficult political decisions. I really don't envy any tribal leader. That's in that situation 19:23.760 --> 19:31.360 But I think um from what I've seen from statements from tribal leadership and from the way the tribe has asserted its rights 19:31.920 --> 19:33.040 Um 19:33.040 --> 19:39.840 You know, they recognize that these are existential fights about the future and the continued existence of the tribe 19:40.320 --> 19:42.320 And they're going to fight them 19:44.400 --> 19:47.600 And as we finish up, you know, these are three distinct 19:48.480 --> 19:54.800 Cases recently with them. There's frustration for tribal members. There's also frustration for non tribal members 19:55.360 --> 20:00.240 Um, and I was at one hearing and the judge was said consistently that he wants the tribe to 20:00.720 --> 20:02.720 Work on their state to state relationship 20:03.280 --> 20:08.640 As a tribe with the state of wisconsin. What do you think is going to happen moving forward? 20:10.080 --> 20:14.080 It's hard to predict what's going to happen. Um, and I will say 20:14.960 --> 20:17.360 You know, this exists in the context of 20:18.400 --> 20:23.760 Decades and decades and decades of conflict, especially when it comes to fishing. So, um 20:24.560 --> 20:27.920 You know, history runs deep in the north woods for sure 20:28.800 --> 20:30.160 but um 20:30.160 --> 20:34.960 My hope is that you know, especially as we're dealing with more and more 20:35.600 --> 20:38.960 Consequences of climate change. I hope folks in the north woods 20:39.600 --> 20:42.000 Um, you know tribal members and non tribal members 20:42.480 --> 20:47.760 Will view tribal sovereignty as an asset, you know, it's an additional layer of protection 20:48.240 --> 20:54.320 That can be exercised to protect the environment to protect the community to protect the walleye to protect the musky fish 20:54.880 --> 20:59.440 And while, you know, these things are hard in the immediate moment 21:00.080 --> 21:07.760 Um, I hope that folks can come together on all sides of the issue, you know, dnr lactoflambo the fish hatcheries the 21:08.320 --> 21:10.880 The recreational fishers the tribal members. Um 21:11.520 --> 21:16.160 I hope they can all come together and you know, find commonality in the fact that 21:16.960 --> 21:22.640 Everybody up there loves the land. The north woods are beautiful and I think everybody wants to protect the north woods 21:24.080 --> 21:28.800 Thank you. Thank you for that tori. I think we'll end on that note. Thank you so much. Thank you 21:29.440 --> 21:30.560 Thank you 21:30.560 --> 21:33.280 All right. So I think we are good 21:33.680 --> 21:40.800 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? 21:40.880 --> 21:46.240 That you can send pictures to us if I needed some b-roll footage. Yeah, I don't have 21:47.360 --> 21:52.320 um books. I have law review articles and then I've uh, I have some 21:53.760 --> 21:59.600 I filed a couple supreme court briefs. I have one that has my name on the front. That's printed 21:59.840 --> 22:03.040 Oh, wait, actually I do have printouts. Yes, I can send you that 22:03.120 --> 22:08.320 Yeah, so send them to me if you know if you or if you had any photos of you teaching in the classroom 22:08.880 --> 22:13.040 Um pointing out a whiteboard or a wall just for any background footage 22:13.040 --> 22:17.680 I can play around since you weren't able to come to the office today. Yes, yes, absolutely 22:18.080 --> 22:22.640 All right, so the email goes to me when you can and this is due to air this week 22:22.720 --> 22:30.000 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 22:30.320 --> 22:32.640 Yeah, thank you so much. All right. Take care. Bye. Bye