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Federal appeals court orders judge to re-open tribal night deer hunt case

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SUN PRAIRIE, Wisconsin — A federal appeals court on Thursday ordered a Madison judge to reconsider a decades-old ruling barring Chippewa tribes from hunting deer at night across much of northern Wisconsin.

A three-judge panel from the 7th U.S. Circuit Court of Appeals found hunting deer at night probably isn't as dangerous as U.S. District Judge Barbara Crabb concluded in a 1991 ruling barring tribal night hunts, noting that four other states allow such hunts, Chippewa hunters' safety record is outstanding and hunting during the day is probably more dangerous than at night because more people are out and about.

"All that can be said is that on the present record there is scant reason to think that safety concerns justify forbidding Indians to hunt deer at night in the thinly populated (by human beings) northern part of Wisconsin," Judge Richard Posner wrote for the panel.

The order doesn't mean Chippewa hunters can go after deer at night. But it does mean Crabb must reconsider her 1991 decision.

Sue Erickson, a spokeswoman for the Great Lakes Indian Fish and Wildlife Commission, which oversees the Chippewa's off-reservation treaty rights, said the tribes are reviewing the ruling and are "pleased that the court recognized the regulated type of night hunt they've proposed doesn't present safety issues."

A state Department of Natural Resources spokesman said the agency was reviewing the decision and consulting with the state Justice Department. A DOJ spokeswoman had no comment late Thursday.

The DNR has long banned hunting deer at night for safety reasons. The Chippewa have pushed for years for a tribal night deer hunt in the ceded territory, a gigantic swath of northern Wisconsin that the bands handed over to the federal government in the 1800s.

The tribes tried to convince Crabb in 1989 to exempt tribal hunters from the state prohibition during a court battle over treaty rights in the ceded territory, but she ruled in 1991 that night deer hunting is dangerous and that the state ban applies to the tribes.

The Chippewa renewed their push for night hunting in 2012 after legislators angered the tribes by allowing hunters to kill wolves at night. The Chippewa consider the wolf a spiritual brother.

The tribes asked Crabb to revisit her 1991 ruling, saying the state believes night hunting is safe it allows the wolf hunts. The DNR also instituted night deer hunting programs to slow chronic wasting disease, protect crops from deer depredation and prevent car-deer collisions. They also said tribal hunters would be required to lay out lines of sight during the day in their hunting area and submit a shooting plan for approval.

In December, Crabb said the tribes had failed to prove that circumstances had changed sufficiently to reopen the 1991 decision. She noted state officials did almost all the night hunting and most of it was designed to slow chronic wasting disease. Legislators also ended night wolf hunting after one season, she said.

But the 7th Circuit's Posner noted Oregon, Washington, Minnesota and Michigan all allow tribal night hunts and that deer hunting has grown considerably safer in the last 20 years.

The Chippewa's hunts would be tightly regulated with shooting plans, he said, adding that tribal members already can hunt deer at night on their reservations and are clearly proficient since there's been only two or three recorded hunting accidents involving American Indians in the ceded territory.

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