Moderators:

Howard Bichler

Howard J. Bichler, is the General Counsel for Stockbridge-Munsee Mohican Community. Before that, he was the General Counsel for the St. Croix Chippewa Indians of Wisconsin. In addition, he was a staff attorney with Wisconsin Judicare and an attorney/planner with the Southeastern Wisconsin Regional Planning Commission. He received a BA from the University of Wisconsin-Madison and a JD from Marquette University Law School. Howard was involved in the Voigt litigation representing the St. Croix Chippewa Indians of Wisconsin for 13 years with several years as lead attorney. In addition he represented the St. Croix Indians of Wisconsin in several post-Voigt judgment matters. Howard was also lead attorney for the Wisconsin Tribes in the Mille Lacs litigation for six years culminating in a favorable decision by the United States Supreme Court.

“I want to focus a little bit in terms of the Voigt and Mille Lacs litigation the kind of people that had incredible input into the success of these cases. And they were successful. We didn't win everything, but, the major pieces of the reserved rights were secured. You know, most important for an attorney, are your clients. When the Voigt case started, economic conditions were rather poor up here in Indian Country. It’s amazing how much tribal councils and tribal leadership allowed their limited resources to be devoted to these cases. I was a sole attorney for a small tribe and the support they gave me to go off and do the things that were necessary to adequately represent their interests was astounding, and it really came at quite a cost to them because of all the other very important work that they needed to have done.”

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Kathryn Tierney

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Kathryn L. Tierney is Tribal Attorney for the Bay Mills Indian Community in Brimley, Michigan. She received her undergraduate degree (Phi Beta Kappa) from the College of St. Catherine, St. Paul, Minnesota, and her law degree cum laude from the University of Minnesota. She has served as counsel for more than 10 Indian Tribes in the Great Lakes area including the Lac du Flambeau Band and the Lac Courte Oreilles Band during the Voigt litigation. She served as lead counsel in that case from 1983 to 1990. Kathryn directed the Wisconsin Judicare - Indian Law unit in the early 1980s and is a former co-chair of the American Indian Law Standing Committee of the State Bar of Michigan. She is a member of the bars of Wisconsin, Minnesota, and Michigan.

“We [also] can't forget that treaties are contracts. Each one has a different language. Each one can be interpreted to mean something different, and not every treaty has language that has been interpreted by the courts to have rights that continue to exist to this day. So just because you have a treaty doesn’t mean that there is a right to utilize resources outside of the exterior boundaries of the reservation. We had treaties, as Indian people had always understood, that specifically reserved that right and that is why we won. Legal skills might have had something to do with it, but the facts got the win, not our exercise in the courtroom.”

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Panelists:

Bruce Greene

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Bruce Greene’s law firm is based in Boulder, Colorado specializing in all aspects of federal Indian law and the representation of Native American Indian tribes. Bruce has devoted his professional career to this specialized area of the law, beginning in 1971, when he was one of the founding attorneys of the Native American Rights Fund. He has substantial expertise in federal Indian law with, federal court litigation experience in natural resources protection, assertion and protection of treaty rights, Indian gaming, and tribal economic development.

“U.S. v. Michigan was the first case and it was an important case. It came at a rather fortunate time in the early to mid to late 1970s, a time when the judicial system seemed to be more sensitive and favorable to these kinds of cases. That doesn't appear to be the situation any longer. And as I will explain, I think that makes in many ways the Mille Lacs litigation, which was handled in large part by Marc Slonim, an even more remarkable decision because it came in a climate when the judicial system was quite hostile to these cases and, indeed, if you were to do a win/loss count in the Supreme Court over the last, 20 years, the Mille Lacs case is one of the few that was able to survive.”

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Michael Lutz

Michael Lutz is a 1976 graduate of the University of Wisconsin Law School and has been the law enforcement and treaty rights attorney for the Wisconsin Department of Natural Resources since 1980. He is currently the acting chief counsel for the Department. He has been involved in the Voigt case from the issuance of the Court of Appeals decision in January of 1983, and is currently retired. His duties in that regard have included legal counsel to the state’s negotiation team on interim implementation of the treaty right, drafter of the state’s litigation position, member of the state’s team on settlement and the DNR attorney dealing with implementation of the treaty right. Michael has played an active role in negotiating the stipulation that was the first modification of the Voigt final judgment and the enactment of 2007 Wisconsin Act 27 dealing with GLIFWC law enforcement authority.

“The DNR has not always been the fun-loving, open-end minded, wild and crazy group that you know today. Prior to 1983 we were a little uptight about off-reservation treaty rights. In fact, we didn't recognize off-reservation treaty rights except for a limited exercise on Lake Superior. Part of that was based on a Wisconsin Supreme Court case from the 1908, State versus Morin, which held that treaty rights were extinguished upon statehood. In other words, off-reservation treaty rights were extinguished. If we were to look deeply into that, we would have recognized that that was not the soundest legal theory on which to base the State's position. We were also quite willing to believe the Department of Justice's position of “don't worry; this is a case we can't lose.” The rest is history.”

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Marc Slonim

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Marc Slonim is a partner in the Seattle, Washington, law firm of Ziontz, Chestnut, Varnell, Berley & Slonim, a firm representing Indian tribes for over 40 years. Marc joined the firm as an associate in 1981 and, within a few years, began working on the Mille Lacs Band’s treaty hunting, fishing and gathering rights. He was the lead attorney in the Band’s 1837 Treaty rights case against the State of Minnesota and argued the case in the United States Supreme Court in 1998. In the mid-1990s he began representing the Little River Band of Ottawa Indians, and later represented the Band in the re-negotiation of the Great Lakes Consent Decree and in the inland phase of United States v. Michigan. Marc has also been involved in treaty fishing rights issues in the Pacific Northwest on behalf of the Makah Indian Tribe.

“From the Indian perspective, the Indian people were willing to share these resources as long as they could remain on the land and continue a way of life that centered on hunting, fishing trapping and gathering, and so every one of those treaties has a provision which preserves to the Indians the rights to remain and to hunt, fish, trap and gather. These rights were conditioned in different ways in each treaty. In the 1836 Treaty in Michigan, these rights continued until the lands were required for settlement. In the 1837 Treaty in Wisconsin and Minnesota these rights were preserved during the Pleasure of the President. In the 1842 Treaty, these rights were preserved until the Indians were ordered to remove. But despite these conditions, it was clear, if you look at the negotiating history of these treaties, that the central condition of the Indians’ land cession was the ability to remain on the land and continue to utilize resources that had sustained them for thousands of years. And that actually worked very well in the years after the treaties were enacted.”

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