When Indigenous Rights and Wilderness Collide ...

When Indigenous Rights and Wilderness Collide: Prosecution of Native Americans for Using Motors in Minnesota's Boundary Waters Canoe Wilderness Area Eric Freedman

The American Indian Quarterly, Volume 26, Number 3, Summer 2002, pp. 378-392 (Article) Published by University of Nebraska Press DOI: 10.1353/aiq.2003.0037

For additional information about this article http://muse.jhu.edu/journals/aiq/summary/v026/26.3freedman.html

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When Indigenous Rights and Wilderness Collide Prosecution of Native Americans for Using Motors in Minnesota’s Boundary Waters Canoe Wilderness Area

eric freedman

By designating wilderness protection on federal public lands, Congress expressed its intent to minimize human disruption of sensitive habitats. It delegated authority to agencies such as the U.S. Forest Service to develop and implement rules to carry out that intent. However, wilderness designations and the regulations that enforce them can conflict with preexisting property rights and claims, including those of Native Americans who have treaty-based and traditional tribal rights. The ensuing conflicts may pit Native Americans against environmentalists and recreational users, while placing public lands managers in the middle as they attempt to enforce the laws and satisfy the often competing demands of multiple constituencies. When four members of the Bois Forte band of Chippewa decided to fight criminal charges based on their admitted use of motorized vehicles in Minnesota’s Boundary Waters Canoe Area Wilderness (bwcaw), their defense in U.S. v. Gotchnik represented such a clash between Indigenous traditions and tribal rights on one side and federal environmental protection mandates on the other that it became the first fully litigated case involving treaty rights within a designated federal wilderness. Beyond the handful of individuals directly involved and their tribe, the criminal litigation reflects a divide between those who seek to exercise treatybased property rights and those who oppose any exemptions or exceptions to protective wilderness designations. In such situations, that divide may potentially split Native American groups and environmentalists, who are often allies in “green” litigation. The principal stakeholders in this type of dispute are tribes with traditional claims to land now encompassed by designated wildernesses, environmentalists, recreational users of public lands, the federal government—and by the inherent nature of litigation—judges (Ruckel 1999; Powers 2000). The resolution of conflicts between Indigenous rights and environmental laws has wide policy and legal ramifications for how agencies manage wilderness areas and

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how they balance competing demands; the degree of legal recognition bestowed on historical and treaty rights of Indigenous peoples; legislative proposals to expand or alter the wilderness system and how it is used; how the public values and uses wilderness areas; and how judges determine or refine public policy. At a time of strengthened assertions of Native American rights and, simultaneously, growing concern among environmentalists about the willingness of the federal government to protect public lands, this article analyzes a key criminal case in which treaty rights and wilderness protection laws collide. It traces the litigation and discusses how the conflict and its resolution affect tribal use of public lands for subsistence purposes ostensibly guaranteed by treaty. The case also suggests that the judicial system may be an imperfect mechanism to resolve such conflicts, which otherwise may be settled through compromise and negotiation. the setting The bwcaw stretches over more than 1.1 million acres of northern Minnesota’s Superior National Forest. The largest wilderness east of the Rocky Mountains, it began in 1938 as the Superior Roadless Primitive Area and is now perhaps the best-known unit in the federal wilderness system. The Superior National Forest Web site notes “that the Boundary Waters Canoe Area Wilderness has changed little since the glaciers melted. With over 1,500 miles of canoe routes, nearly 2,200 designated campsites and more than 1,000 lakes and streams waiting, the bwcaw draws thousands of visitors each year” (Superior 2003). Existing regulations include restrictions on motors and mechanized travel, permit requirements, campfires, and designated entry points (Superior 2003; Freedman 1995). Wilderness designations inherently require a balancing of competing interests, some easily identifiable and others much harder to calculate. As the Superior National Forest Web site states, “We recognize that human resource use in the Superior for both economic and recreational purposes should be balanced with consideration for the land and its non-human inhabitants” (Superior 2003). The use of motors, including boat motors, in designated wildernesses is a divisive, long-contentious issue; it arose during early attempts to pressure Congress to enact a wilderness statute. At one point in 1957, for instance, a Minnesota newspaper accused Boundary Waters advocate and National Parks Association president Sigurd Olson of “openly and vigorously advocating the prohibition of the use of outboard motors” in the proposed Boundary Waters (Backes 1997, 272). Olson labeled the accusation “an absolute falsehood,”

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pointing out that the proposed legislation “states specifically that present regulations and established uses will not be changed in this area. In its application to this region, the Superior National Forest is specifically exempted. Canoeists and resort people may use outboards as they always have” (Backes 1997, 272). As Olson’s biographer, David Backes, wrote: Olson’s comments clearly were intended to apply to the wilderness bill before Congress, not as a promise that Congress would never in the future consider different legislation that might curtail outboard motors in the canoe country. . . . By the 1990s, much of the outboard motor use had been prohibited, but the changes were the result of an act of Congress passed in 1978. (Backes 1997, 273) Unlike the situation in Gotchnik, disputes over motors in the bwcaw do not always involve Native Americans or treaty rights. For instance, in 1999 the Eighth Circuit U.S. Court of Appeals rebuffed environmentalists who sued over how much motorboat and commercial towboat use is permitted on certain lakes under the Boundary Waters wilderness management plan (Friends of the Boundary Waters Wilderness v. Dombeck 1999). The potential impact of the court decision in the Gotchnik case is extensive. For example, Vince Vukelich, who was a legal adviser to the Forest Service in the Milwaukee regional office of the U.S. Department of Agriculture usda during the appeals process said: The 1837 and 1842 treaties with the Chippewa encompass basically all of the Upper Peninsula (of Michigan) and the northern third of Wisconsin. There are a number of wildernesses in this area—Sylvania and McCormick on the Ottawa (national forest in Michigan), for example, and several in the Nicolet-Chequamegon (national forests in Wisconsin). Because of their size compared to the bwcaw, there has not been as much discussion concerning Sylvania, but the current restrictions in Sylvania do allow electric motors on Crooked Lake. The tribe has not attempted to litigate a theory that they should have the same rights as the riparian owners. (Vukelich 2001b) In other words, the legal and public policy ramifications of the Gotchnik decision are not limited by geography to the Boundary Waters but may apply to other public lands ceded under treaties. Nor are the ramifications limited to disputes stemming from the specific 1854 treaty whose rights the defendants in Gotchnik sought to exercise. Thus, the appellate decision set a precedent that is relevant to federal governmental decisions that affect the exercise of treaty rights to subsistence hunting, fishing, and gathering on public lands or of public resources, whether these decisions are made by courts, Congress, or administrative agencies. One such situation concerns the Makah tribe of Wash380



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ington State and its bid to use its treaty guarantee to hunt whales in light of the Marine Mammal Protection Act, the Whaling Convention Act, and the regulatory power of U.S. agencies and the International Whaling Commission (Anderson v. Evans 2002; Metcalf v. Daley 2000). the history In the Treaty of 30 September 1854, the Bois Forte band of Chippewa ceded large amounts of territory, including what would become the entire bwcaw, to the federal government. The treaty stated that “such of (the Chippewa Indians) as reside in the territory hereby ceded, shall have the right to hunt and fish therein” (Treaty of 1854, Article 11). Under this provision, the signatory bands retained usufructuary rights, including the right to live off the land and make a modest living from hunting, fishing, and gathering from the resources of the ceded territory. Subsistence is the customary and traditional noncommercial use of wild resources for such purposes as harvesting for food, and subsistence use of fish, wildlife, and plants is part of the socioeconomic tradition. The tribes have continuously exercised those subsistence rights since the treaty was signed. A 1988 consent decree in the U.S. District Court in Minnesota confirmed the bands’ authority to regulate the exercise of their enrolled members’ hunting, fishing, and gathering rights in the ceded territory (Grand Portage Band of Chippewa of Lake Superior v. Minnesota 1988). Since 1989 the U.S. Department of the Interior has provided funds to bands participating in the consent decree to create and maintain a natural resource program. Those bands, including the federally recognized Bois Forte, enacted a conservation code that does not prohibit the use of motorized vehicles, outboard motors, or other motorized equipment to travel within the ceded territory. In separate litigation in 1999, a divided U.S. Supreme Court ruled that several Chippewa bands had retained their usufructuary rights in Minnesota under an 1837 treaty. In that case, the court rejected the state’s arguments that an 1850 executive order and the state’s 1858 admission into the Union had terminated those rights (Minnesota v. Mille Lacs Band of Chippewa 1999). the prosecutions Four members of the Bois Forte band were cited for violation of federal regulations banning the use of motors and motorized vehicles to reach off-reservation fishing areas within bwcaw. The provision, 36 cfr Section 261.16(a), prohibits possession and use of motorized vehicles, boats, and equipment in a national forest wilderness area “except as authorized by federal law.” In July 1998 David Gotchnik used an 8-horsepower motor on his canoe to cross Basswood Lake, including a no-motor portion of the lake, to fish. In american indian quarterly/summer 2002 /vol. 26, no. 3


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April 1998 Mark Stepec was ticketed after his motorized all-terrain vehicle and his equipment, including a motorized ice auger, broke through the ice on his way to fish in Basswood Lake’s Back Bay. In May 1999 Gotchnik, Terry Anderson, and Thomas Anderson were cited for using boats with outboard motors while fishing in the no-motor section of the same lake. The defendants unsuccessfully asserted that their conduct constituted a lawful exercise of their federal treaty rights—in other words, that their conduct was “authorized by federal law” and thus fell within the Code of Federal Regulations exemption. In the criminal litigation the government conceded that Congress had not abrogated those treaty rights and that neither the legislative history nor the explicit language of the Boundary Waters Act purported to modify the treaty (Boundary Waters Canoe Area Wilderness Act 1978; House Committee on the Interior and Insular Affairs 1978). Even so, the U.S. Attorney’s office argued in a prosecution brief that, a right protected by treaty, although interpreted liberally, is not free of necessary and reasonable regulation. Non-exclusive off-reservation treaty rights may be subject to government regulation when such regulation is reasonable and necessary for conservation purposes and does not discriminate against Indian tribes. (Brief in Opposition to Petition for Rehearing En Banc 2000, 8) U.S. District Judge Ann Montgomery granted Stepec’s motion for acquittal on the charge of possessing a motorized ice auger. However, she rejected defense motions to dismiss the charges of illegally using motorized boats and an all-terrain vehicle. She upheld those charges on two grounds: first, that the original parties to the 1854 treaty would not have understood their treaty rights to include the use of modern transportation methods; and second, that the ban on motors is necessary for legitimate conservation purposes (U.S. v. Gotchnik 2000). The defendants then pleaded guilty to violating the no-motor restrictions and were fined from $150 to $300 per violation. Interestingly, Gotchnik and two other tribal members had been cited for the same type of violation in 1994 for using snowmobiles near Basswood Lake. One defendant initially pleaded guilty. A federal magistrate in Duluth rejected the treaty-based defenses raised by Gotchnik and the remaining codefendant and ruled that the bwcaw Act does not infringe in any meaningful way on their usufructuary rights under the treaty (U.S. v. Gotchnik 1995). The defendants did not appeal to the U.S. district judge, and there was no formal published opinion. the eighth circuit u.s. court of appeals In their appeal the defendants relied on earlier court decisions, including the Mille Lacs ruling, and argued that “in exercising treaty hunting and fishing 382



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rights, tribal members are not confined to the technology and harvest methods utilized at the time of the treaty signing” (Brief and Addendum of Defendants-Appellants 1999, 11). Referring to the 1837 treaty involved in Mille Lacs, the defendants quoted the trial judge: The Chippewa incorporated rifles and other Euro-American technology into their hunting, fishing and gathering before the 1837 treaty and continued to use the new technology after the treaty. Neither the treaty journal nor the language in the treaty indicates that the Band should be confined to techniques, methods, devices and gear existing in 1837. (Brief and Addendum of Defendants-Appellants 1999, 12) However, the Eighth Circuit was not persuaded and unanimously affirmed the convictions. It rejected defense arguments that treaty rights, including a right of access to the bwcaw, should be interpreted to allow the use of modern methods of transportation such as motorized vehicles. Instead, the three-judge panel agreed with the prosecution that the bands signing the treaty almost a century and a half earlier would not have reasonably contemplated the use of modern transportation methods to reach their hunting and fishing areas. Chief Judge Roger Wollman wrote, “A motorboat, all-terrain vehicle or helicopter for that matter may make it easier to reach a preferred fishing or hunting spot within the Boundary Waters Area, but the use of such motorized conveyances is not part and parcel of the projected act of hunting or fishing, as is the use of a rifle, ice augur or other hunting or fishing instrument” (U.S. v. Gotchnik 2000, 510). The court found it unnecessary to rule on the merits of the other portion of Montgomery’s earlier decision that the Boundary Waters statute is a valid conservation measure (U.S. v. Gotchnik 2000).

the appeal to the u.s. supreme court On 8 January 2001 the defendants filed their petition for a writ of certiorari, asking the U.S. Supreme Court to review the case on its merits. Beyond the Boundary Waters case, defense lawyers argued in their petition: On a national level, the issue in this case will influence the federal government’s wildlife management practices over millions of acres of national forest and wilderness-designated areas. Numerous tribes hold off-reservation treaty rights over large tracts of federal land in the Midwest and West under a variety of treaties. (Petition for Writ of Certiorari 2001, 17) Among their principal points on appeal were: 1. The 8th Circuit decision conflicted with Supreme Court precedent because it interpreted the 1854 treaty without any evidence of the signors’ american indian quarterly/summer 2002 /vol. 26, no. 3


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intent. “When interpreting Indian treaties, federal courts at all levels, in both civil and criminal contexts, have consistently relied on historical evidence and context to determine the understanding of the tribal parties regarding the original treaty terms,” the defendants asserted (Petition for Writ of Certiorari 2001, 7). The defendants also called the decision inconsistent with the reasoning of other federal cases that explicitly held that tribal members, in exercising their tribal hunting and fishing rights, are not limited to whatever technology and harvest methods were in use when a treaty was signed. 2. The 8th Circuit decision incorrectly considered congressional intent; even if congressional intent is relevant, the plain language of the bwcaw Act shows that Congress did not intend the restrictions on motors to apply to hunting, fishing, and gathering by tribal members in the ceded territory. More important were the potential public policy ramifications if the Eighth Circuit decision were to stand, defense lawyers contended in the petition: The no-motor restrictions effectively render the rights reserved under the 1854 Treaty meaningless because they prevent subsistence harvesting by tribal parties to the treaty in large parts of the bwcaw. “In essence, the bands are denied the benefit of the bargain reached in the 1854 Treaty” (Petition for Writ of Certiorari 2001, 16). The decision also upset the balance reached in the 1988 consent decree with Minnesota that confirmed the bands’ right to regulate their members without state interference. The settlement acknowledged that members’ rights are more extensive than those of non-Indian sport anglers. A defense lawyer in the Gotchnik case, Mark A. Anderson of St. Paul, said, “The importance is the tribe’s view of their right to continue to hunt and gather for subsistence. They don’t believe they should be limited in how essentially they get to the grocery store, whether they walk or can drive to the grocery store.” He further argued that although tribal members can paddle to remote sites, to do so undercuts the effective exercise of their subsistence rights (Anderson 2001). In its Supreme Court filing, the federal government characterized the case as involving protection of a congressionally defined wilderness and argued that the no-motor restrictions were essential to the goal of avoiding as much human intrusion as possible. Congress, the prosecution’s brief argued, had acted under the authority of the Constitution’s Property Clause and created the bwcaw to ensure that the area would be enjoyed as wilderness. A resolution of the legal issue was important to the government because public land managers, as well as tribal members, needed to know how the nomotor mandate would be enforced. While awaiting the Supreme Court’s decision on whether to hear the defendants’ appeal, tribal lawyers advised tribal 384



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members to comply with the regulations given the Forest Service’s “clearly announced intention to cite people” for violations (Anderson 2001). Judicial oversight has an impact on how the Forest Service operates its programs, manages public land, implements policies, and carries out its duties. That is true whether the litigants are tribes, representatives of commercial interests such as outfitters or loggers, local governments unhappy with the federal government, recreational users such as hunters and hikers, or “green” groups. As usda lawyer Vukelich explained, the federal government needed an answer because “we can’t have the Forest Service abrogating its management responsibility. Unfortunately, you have a fairly big principle of Indian law being decided in a $50 matter,” a reference to the small fines imposed on the defendants (Vukelich 2001a). On 29 May 2001 the U.S. Supreme Court denied the defendants’ petition for a writ of certiorari, meaning it refused to accept the case for review. As customary, the court gave no explanation of why it declined to hear the case (U.S. v. Gotchnik 2000, certiorari denied). indigenous rights v. natural resources protection: conflict or cooperation? The Gotchnik case differs from much other litigation involving the use of national forests because a broad public policy issue lay at its core: how Native Americans can exercise traditional subsistence rights purportedly guaranteed by treaty. Not surprisingly, that tradition— even when guaranteed by treaty or statute—may clash with federal and state public lands laws and policies. Treaty rights represent a relationship between sovereigns, namely, the federal government and the tribes. However, Congress does have power to abrogate treaty rights and has done so in other natural resources situations, including the creation of national parks (Laurence 1991). In Alaska, for example, the National Park Service “actively discouraged” subsistence activities in Glacier Bay National Park and then stopped traditional fishing and hunting entirely (Bosworth 1995). In most litigation involving the Forest Service, timber, mining, or industry interests sue to challenge agency policies they deem as being overly restrictive, or environmentalists go to court challenging policies they believe are too lenient. Those patterns are reflected in recent representative cases such as High Country Citizens’ Alliance v. U.S. Forest Service (2000), where environmentalists sued to block a permit allowing private property owners to plow two miles of Forest Service road in Gunnison National Forest, and Wyoming Timber Industry Association v. U.S. Forest Service (2000), in which industry groups contested the Clinton administration’s eighteen-month suspension of road construction in areas without roads. american indian quarterly/summer 2002 /vol. 26, no. 3


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Closer in essence to the Boundary Waters case is property rights litigation, such as a trio of interrelated suits by property owners with riparian rights along Crooked Lake, 95 percent of which falls within the boundaries of the Sylvania Wilderness in Michigan’s Ottawa National Forest. Those suits, Stupak-Thrall v. U.S. and Stupak-Thrall v. Glickman (I and II), challenged Forest Service authority to regulate activities—including motorboat use— on Crooked Lake. Non-Indians have been prosecuted for violations of 36 cfr 261.16(a), the same provision involved in Gotchnik. The best-known prosecution of a nonIndian was that of auto racer Robert “Bobby” Unser, a three-time Indianapolis 500 winner, who was fined $500 for unauthorized use of a snowmobile in a wilderness area of the Rio Grande National Forest in southern Colorado. Unser claimed that the violation was unintentional after he and a companion became lost and stranded in a sudden “ground blizzard” in 1996. The Tenth Circuit U.S. Court of Appeals upheld the conviction (U.S. v. Unser 1999). (The Denver-based Mountain States Legal Foundation, a pro-property rights organization that represented the lakefront landowners in the three StupakThrall cases, represented Unser on appeal.) After his conviction, Unser went public with complaints about Forest Service enforcement practices but stopped short of advocating repeal of the 1964 Wilderness Act. In one interview he said, “I’m not trying to do away with federal wilderness lands. I’m just trying to bring attention to the strong-arm tactics that federal agencies use when left unchecked” (Wallis 1997). He also testified before a U.S. House subcommittee, accusing the Forest Service of an “abuse of power” in handling his case (Unser 1998). Although Gotchnik is the first reported criminal case involving Indigenous rights in a federally designated wilderness, public land agencies and Native Americans have not always seen eye-to-eye when dealing with subsistence rights, sacred places, or other access and use issues, such as disputes in Minnesota about gathering rights (Vukelich 2001a, 2001c). For example, a federal judge in Missoula, Montana, ruled that the Blackfeet have no treaty rights to hunt and fish in Glacier National Park on land ceded in 1896 (Keller & Turek 1998). The case involved the prosecution of two tribal members for killing three bighorn sheep in the park. One was convicted, the other acquitted. The judge ruled that the Blackfeet had retained hunting rights in the ceded territory under treaty but that Congress had abrogated the treaty by prohibiting all hunting when it created the national park. Similarly, when Congress created Olympic National Park in Oregon in 1938, the enabling legislation provided that it would not “affect any valid existing claim,” presumably including hunting by the Quinalt under an 1855 treaty. In 1942, however, Congress banned all hunting within the park. In 1982 two members of the tribe

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were prosecuted for killing elk; they were fined and placed on probation after a federal court ruled that they were not entitled to do so under the treaty (Keller & Turek 1998). A recently resolved dispute involved about 10,000 acres, including designated wilderness, of Sandia Mountain in New Mexico’s Cibola National Forest. The Pueblo of Sandia Tribal Council formally claimed the land that adjoins its existing, recognized reservation boundary, but it encountered strong opposition from user groups, concessionaires, adjacent property owners, and local government. The tribe’s claim stemmed from a 1748 Spanish colonial land grant that ambiguously defined the eastern border of the pueblo (Cibola National Forest 1996 –2001). In 1994 the tribe sued, alleging in part that Forest Service activity makes it “more difficult for the Sandia to worship in privacy” as tradition requires (Pueblo of Sandia v. Babbitt 1996). A district court judge reviewed conflicting expert testimony about the centuries-old documents, accepted the interpretation of an historian retained by the tribe, and ordered the Forest Service to transfer the land to the tribe, including the western face of the mountain. After this decision, negotiations and lobbying began in earnest among U.S. senators, pueblo and local officials, the principal concessionaire, and owners of adjacent residential property (Brooke 1998). In October 2002, after eight years of land claim litigation—and nineteen years after the tribe submitted its formal claim to the U.S. Department of the Interior—Sandia Pueblo accepted a settlement that would give it varying degrees of control over the disputed land within Cibola National Forest, including veto power over any new uses of the land. In February 2003 President George W. Bush signed Public Law 108-7, an appropriations bill that implemented the settlement, including creation of the T’uf Shur Bien (Green-treed Mountain) Preservation Trust Area for religious and traditional uses. There have been recent instances of cooperation and accommodation without the need for judicial orders. Among them are agreements by the National Park Service concerning sacred sites in northern California; tribal participation in salmon management on the Columbia River; efforts by the Warm Springs tribe to work with Oregon’s Mount Hood National Forest to restore and preserve wild huckleberries, a sacred food; and Nez Perce management of wolf reintroduction in Idaho. Meanwhile, tribes are developing enhanced natural resources expertise and staffs (Thompson 1999). In Minnesota the Forest Service voluntarily agreed to discourage visitors to Turtle Mound in the Chippewa National Forest. The Dakota had built the mound with its sunken intaglio effigy, and the Chippewa later used it as a holy place to consult with the turtle oracle. It is listed on the National Register of Historic Places and, until the mid-1990s, was marked with an interpretive sign and appeared on the Forest Service map of the Avenue of Pines Scenic Byway.



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Under an agreement with the Leech Lake Tribal Council, the Forest Service no longer interprets the site for visitors (Freedman 1995). By executive order, the Forest Service must consult with tribes about access issues and the preservation of sacred sites on Forest Service land, according to University of Montana law professor Maylinn Smith. Her Indian Law Resource Center in Helena filed a friend-of-the-court brief in the Glacier National Park case (Smith 2001). In Superior National Forest, tribes and the Forest Service have worked together on such questions as whether wild rice beds can be reinstituted (Vukelich 2001c). And in 1998 the Forest Service agreed to exempt the Nez Perce from camping fees and length-of-stay requirements at fifty-three campgrounds in five national forests in the Pacific Northwest, ending a nineyear dispute and the threat of litigation. The head of the Nez Perce’s tribal executive committee said, “Specifically it honors the rights reserved in our treaties with the United States” (Loftus 1998, 10a). In another accommodation, Bureau of Land Management blm wilderness management rules recognize the right of Indigenous people to use areas for traditional religious purposes if the area was used for those purposes before the wilderness designation. While the rule does not expressly allow a waiver of nomotor and similar restrictions, it authorizes blm to “temporarily close to general public use specific portions of the wilderness area . . . to protect the privacy of native people engaged in religious activities in such area” (43 cfr Parts 6300 and 8560, Section 6302.60). Beyond the outcome of a single case that upheld criminal charges against individual defendants, the Boundary Waters prosecution, conviction, and appeal raise substantial societal and public policy questions concerning how the federal government balances the rights of Native Americans to use and have access to natural resources and public lands. Along those lines, Robert Laurence, a law professor at the University of Arkansas, wrote that Native Americans, whose sovereignty predates that of the federal government, should have an “enhanced role” in the competition for natural resources: They were here first, and that, in a moral sense for some, entitles the Indians to a greater say in the exploitation and conservation of the resources that were initially theirs alone. . . . Legally, too, the Indians have a role in the determination of how coal is to be extracted from the ground and what is to become of the bald eagle. This role, as a general matter, is a tribal role; it belongs to Indians as groups, and only indirectly to Indians as individuals. Furthermore, these groups are governments, not private, voluntary organizations like the Sierra Club, nor state-chartered corporations like Texaco. (Laurence 1991, 859 – 60)

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Because Gotchnik was a criminal case, there were no litigants except for the federal government and the individual defendants, despite the fact that the underlying issue is one on which the tribe and at least some environmentalists disagree. From the perspective of scholars and advocates for Native American rights and wilderness protection, further research is needed on litigation that puts tribes and environmentalists on opposite sides of the courtroom. For example, there are cases to be analyzed that, like Gotchnik, focus on conflicts between subsistence rights and protection or preservation of natural resources, including litigation over the treaty rights of the Makah to hunt whales. One commentator has written of philosophical differences between Indian and Eurocentric American environmentalisms, saying, “As part of the dominant culture and a sometimes adversary of Indian cultures, mainstream environmentalism has shared in the diminishing sensitivity to the complexity and historical primacy of tribal sovereignty” (Manus 1996, 257). Also, it is important to study and understand the impact of such litigation on the governmental entities and officials responsible for managing public lands and natural resources because the controlling agencies, such as the U.S. Forest Service, Environmental Protection Agency, or Bureau of Land Management, are always voluntary or involuntary litigants in these cases. Although statutes may give them discretion, such as the decision whether to prosecute a violator, the scope of their authority and how they exercise their discretion are directly affected by court rulings.

references Anderson, Mark A. 2001. Telephone interview with author, 19 March. Backes, David. 1997. A Wilderness Within: The Life of Sigurd F. Olson. Minneapolis: University of Minnesota Press. Bosworth, Robert. 1995. “Biology, Politics, and Culture in the Management of Subsistence Hunting and Fishing: An Alaskan Case History.” In Human Ecology and Climate Change: People and Resources in the Far North, edited by David L. Peterson and Darryll R. Johnson. Washington dc: Taylor & Francis. Brooke, James. 1998. “With a Mountain at Stake, Tiny Tribe and New Mexico Neighbors Do Battle.” New York Times, 8 September, 14. Cibola National Forest. 1996. “Executive Summary, History of Boundaries of the Pueblo of Sandia, 1748 –1860.” 26 January. ———. 1998. “Overview of Pueblo of Sandia Claim” 31 July. ———. 2000. “Background paper.” 6 March. ———. 2001. “Issue paper.” 23 January. ———. Undated. “Statement of Regional Forester Eleanor S. Towns.”



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Freedman, Eric. 1995. Great Lakes, Great National Forests: A Recreational Guide. Lansing mi: Thunder Bay Press. Keller, Robert H. and Michael F. Turek. 1998. American Indians & National Parks. Tucson: University of Arizona Press. Laurence, Robert. 1991. “The Abrogation of Indian Treaties by Federal Statutes Protective of the Environment.” Natural Resources Journal (fall): 859 – 86. Loftus, Bill. 1998. “usfs: Nez Perce May Camp for Free.” Lewiston Morning Tribune, 9 May. Manus, Peter M. 1996. “The Owl, the Indian, the Feminist and the Brother: Environmentalism Encounters the Social Justice Movement.” Boston College Environmental Affairs Law Review 23:2 (winter): 249 –99. Powers, Stephen Paul. 2000. “Timber Trials: The Federal Courts and Forest Politics.” Ph.D. diss., Brandeis University. Ruckel, H. Anthony. 1999. “The Wilderness Acts and the Courts.” Denver University Law Review 76: 611–19. Smith, Maylinn. 2001. Telephone interview with author, March. Superior National Forest Web site. www.superiornationalforest.org. Thompson, Courtney. 1999. “Tribes Taking on New Role in Managing Public Lands.” The Oregonian, 15 June. Unser, Bobby. 1998. Testimony before U.S. House Judiciary Subcommittee on Commercial and Administrative Law, 7 May. Vukelich, Vince. 2001a. Telephone interview with author, 21 March. ———. 2001b. E-mail to author, 22 March. ———. 2001c. E-mail to author, 16 May. Wallis, David. 1997. “Bobby Unser: Race Car Champion as Scofflaw.” Salon (retrieved in June 2003 from www.salon.com/June97/news/news2970606.html).

Court Decisions Anderson v. Evans. 2002. 314 F.3d 1006 (9th Cir.). Friends of the Boundary Waters Wilderness v. Dombeck. 1999. Nos. 97-3282 & 97-3292 (8th Cir.). Grand Portage Band of Chippewa of Lake Superior v. Minnesota. 1988. No. 4-85-90 (D. Minn.). High Country Citizens’ Alliance v. U.S. Forest Service. 2000. No. 97-1373 (10th Cir.). Minnesota v. Mille Lacs Band of Chippewa Indians. 1999. 526 U.S. 172. Metcalf v. Daley. 2000. 214 F.3d 1135 (9th Cir.). Pueblo of Sandia v. Babbitt. 1996. No. 94-2624, (D. dc, 10 December 1994); No. 94-2624, (D. dc, 10 December). Stupak-Thrall v. U.S. 1995. No. 64-1863 (6th Cir., 29 November). Stupak-Thrall v. Glickman. 1996. No. 2:96-CV-054 (wd Mich., 15 May); Stupak-Thrall

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v. Glickman, No. 2:96-CV-054 (wd Mich., 16 December 1997; Stupak-Thrall v. Glickman, No. 2:98-CV-113 (wd Mich., 2 April 1999); Stupak-Thrall v. Glickman, No. 991353 (6th Cir., 1 September 2000). U.S. v. Gotchnik. 1995. No. 5-94MG-05 (D. Minn., 29 March). U.S. v. Gotchnik. 2000. 57 F. Supp. 2d 798 (D. Minn., 1999); affirmed 222 F.3d, 506 (8th Cir.); certiorari denied (121 S. Ct. 2192, 2001). Briefs and pleadings cited: Petition for Writ of Certiorari, U.S. Supreme Court, 8 January 2001; Brief in Opposition to Petition for Rehearing En Banc, 8th Circuit, 22 September 2000; Brief and Addendum of Defendants-Appellants, 8th Circuit, 28 May 1999. U.S. v. Unser. 1999. No. 97-1241 (10th Cir.). Wyoming Timber Industry Association v. U.S. Forest Service. 2000. No. 99-CV-1016-B (D. Wyo.).

Key Statutory, Regulatory, Treaty, and Constitutional Provisions U.S. Constitution, Article 4, Section 3, Clause 2 (Property Clause). “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” Wilderness Act, 1964. “Except as specifically provided for in this chapter and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area and . . . there shall be no . . . motorized equipment or motorboats.” Boundary Waters Canoe Area Wilderness Act, 1978. “Nothing in this Act shall affect the provisions of any treaty now applicable to lands and waters which are included in the mining protection area and the wilderness.” Treaty of 30 September 1854, 10 Stat. 1109, Article 11. “Such of (the Chippewa Indians) as reside in the territory hereby ceded, shall have the right to hunt and fish therein until otherwise ordered by the President.” 16 U.S.C. Section 551. “The Secretary . . . of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which have been set aside or which may be hereafter set aside . . . and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; and any violations of the provisions of this Act or such rules and regulations shall be punished by a fine of not more than $5,000 or imprisonment for not more than six months, or both.” 36 cfr 2, Part 261.16. “The following are prohibited in a National Forest Wilderness: (a) Possessing or using a motor vehicle, motorboat or motorized equipment except as authorized by Federal Law or regulation.” 43 cfr Parts 6300 and 8560, Section 6302.60. “In accordance with the American Indian Religious Freedom Act, American Indians, Eskimos, Aleuts and Native Hawaiians



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may use wilderness areas for traditional religious purposes where these uses of an area preceded wilderness designation. blm may temporarily close to general public use specific portions of the wilderness area that are not subject to valid existing rights in order to protect the privacy of native people engaged in religious activities in such areas. Any such closure will be made so to affect the smallest practicable area for the minimum period necessary.” House Report 95-1117, Committee on the Interior and Insular Affairs, 1978. “Section 17 makes clear that the legislation is not to affect the provisions of any treaty which is now in effect. The Boundary Waters are affected by international boundary treaties with Canada, as well as by certain Indian treaties. All these existing agreements are to remain unaffected by the enactment of this legislation.”

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