Sacred Burial Ground at Lac du Flambeau

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Appeals Court uphold tribe's position in dispute over island

Feb. 25, 2003
Associated Press

WAUSAU, Wis. - A state appeals court Tuesday refused to overturn a tribal referendum that rejected a plan to buy a 26-acre island on a northern Wisconsin reservation for $1.5 million to keep it from being developed into homes by its Colorado owner.

At issue in the dispute is Strawberry Island in Flambeau Lake on the reservation of the Lac du Flambeau Band of Lake Superior Chippewa.

The island, which is listed on the National Register of Historic Places and considered a likely Indian burial site, is owned by Walter Mills of Aspen, Colo., whose family has owned it since 1910, according to court records.

Mills sought permission from Vilas County in 1995 for a permit to build a home and garage on one of 16 lots proposed for development on the island, court records said. Mills had received approval in 1976 to subdivide the land into lots.

The county denied the building permit, raising several concerns, including that building on the island might disturb human remains linked to a territorial dispute between and Chippewa and Sioux nations decades ago, court records said.

Those concerns led to negotiations to sell the island to the tribe for $1.5 million "subject to approval of tribe membership if needed," court records said.

The tribe determined its profits from operating a Las Vegas-style casino were insufficient for the deal, requiring the use of more than $10,000 of tribal funds held in trust by the U.S. Department of Interior, court records said.

Under term's of the tribe's constitution, that triggered a referendum, held in August 1999, in which the membership rejected the deal.

Subsequent negotiations broke down when the tribe opened the talks with Mills by offering $800,000 for the island, court records said.

Mills went to court, seeking to enforce the original deal by contending the referendum was not needed.

Vilas County Circuit Judge Robert Kinney denied the motion, ruling the election was a political question.

The 3rd District Court of Appeals unanimously ruled Tuesday that Kinney properly used his discretion in refusing to "overturn the decision of a sovereign nation."

It's part of a doctrine that defers to the "judgments of other states or sovereigns out of mutual respect and for the purpose of furthering the orderly administration of justice," the three-judge panel said.

The tribe wanted Mills to pay its legal fees and costs, arguing he filed a "frivolous appeal" of the dispute.

The appeals court disagreed.

"We cannot conclude that Mills' appeal was filed to harass the tribe or that he should have known the appeal was without any reasonable basis in the law," the panel said.

Attorneys for the Mills and tribe did not immediately return telephone messages Tuesday.

Wisconsin Court of Appeals:

A History of Strawberry Island

A Colorado real estate developer is planning to dig up a historic Native American battle site located on the Lac du Flambeau . The reservation got its name when French explorers saw Ojibwe spearfishing with a torch (flambeau) on a lake at night. Strawberry Island on Flambeau Lake has been continuously inhabited since the Middle Woodland period, about 200 BC, and is a rich trove of pottery and tools. The area was later home to the Dakota (Sioux), who were driven west by the Ojibwe (Chippewa) -- under pressure by European settlers to the east -- in the late 1700s and early 1800s. The last major Ojibwe-Dakota battle in Wisconsin took place on Strawberry Island, leaving behind many dead, and a huge canoe now on display in the tribal museum.

Tribal members report that, ever since, they have been told by their elders not to step on the “Place Where the Spirits Visit”, in respect of those who fell there. The island has also loomed large in the historical accounts of the Dakota. In 1966, Dr. Robert Salzer of Beloit College reported to the State Historical Society that the island is the most important archeological site in northern Wisconsin. In 1978, it was listed on the National Register of Historic Places, and is on the state register.

Lac du Flambeau Reservation was established under the 1854 Treaty. In the Allotment Period (1887-1928), choice tribal lands throughout the country were transferred to private white ownership, through a combination of fraud, forced debt creation, and manipulation of alcoholism and illiteracy. The result is a “checkerboard” of tribal and non-tribal ownership on many reservations. Strawberry Island was signed over by a child in 1911, who died shortly afterward. Though still part of the reservation, it was placed under the jurisdiction of a non-Indian township. However, the main owner over the decades understood the significance of the island to the Ojibwe in the town only a few hundred yards away, and he chose not to develop it.


The Threat to Strawberry Island


The owner 's heir, however, has today opted to build homes on the sacred island. Mr. Walter Mills of Aspen plans to subdivide the 26-acre island into 16 lots, and build quarter-million dollar homes on the properties. The tribe has offered to buy the island, but Mills has steadily upped his asking price to two million dollars -- far above its market value. The township has granted Mills a building permit, even though he has not completed the necessary septic and other tests on the inaccessible island.

The elders, youth, and other tribal members see Strawberry Island as priceless in terms of its cultural and spiritual significance, and have organized an Island watch to report imminent movement of equipment to the island. Environmentalists and treaty supporters have mobilized to support Lac du Flambeau. Some state and federal agencies have also been supportive, but they are largely powerless to stop the destruction of archeological sites on private lands unless their funding is involved. The island is now on the state's Ten Most Endangered Properties list.

On July 4-6, 1995, Ojibwe and Dakota from around the region came together at Lac du Flambeau for a “Healing of the Nations Gathering” to protect Strawberry Island. How would veterans feel if a developer chose to dig up European war cemeteries for vacation homes?

On October 3, 1995, the Vilas County Zoning Committee surprisingly voted to deny the Mills permit, after listening to testimony from tribal members. (The vote took place at the same time as the O.J. Simpson verdict, but everyone stayed in the room to hear the committee vote.) Members of the committee were subsequently removed by the county chairman, and a second vote was held in March that unanimously approved the permit. The tribe is appealing the decision.


Strawberry Island, Lac du Flambeau Sacred Site


by Carol Brown Biermeier, Esq.

Analysis Prepared for the Tribal Historic Preservation Office,
Lac du Flambeau Band of the Lake Superior Chippewa Indians

Strawberry Island is located within the exterior boundaries of the Lac du Flambeau Band of Lake Superior Chippewa Indian Reservation, Vilas County, Wisconsin, comprising approximately 26.5 acres of undeveloped and densely wooded forest. The Island is covered by a mature forest dominated by red pine, red oak, and big tooth aspen. The presence of the red pine represents one of the few remaining stands of natural origin in the upper Great Lakes region. There is a small wetland of less than five (5) acres on the South end of the Island. A review of the endangered and threatened plant species listed by the State of Wisconsin reveals that five of these species have the potential to occur in the habitats found on the Island, although a perfunctory walk-over revealed no such plants evident. The plant qualities are not unique, but are of high quality and worth preserving for the many plants traditionally used by the Chippewa as well as for their aesthetic value. The Island is also an important bald eagle and osprey hunting and perching area and has significant potential as future nesting site. Strawberry Island has remained virtually undeveloped through the years, with the exception of natural erosion and minor clearing by the owner of dead trees and brush in the mid-1960s.

The Island is owned in fee by a non-Indian, who acquired title to the Island in 1910 by warranty deed, purchasing the property from a Lac du Flambeau Tribal member. Title has remained in the same family, with the property being deeded through inheritance in the 1950s to an heir to the family, who currently holds title under a family trust of the same name.

For reasons uncertain, the Tribe was unaware that the Island had passed title in fee to a non-Indian until the early 1960s, when the owner hired some tribal members to assist in the clearing of some of the trees and brush.

Early in the 1960s, the Wisconsin North Lakes Project, under the direction of Beloit Archaeology Professor, Dr. Robert Salzer, obtained permission from the owner to conduct an archaeological survey on the Island. The interest in the Island was due to studies indicating historic or prehistoric occupations and the discovery of artifacts on the Island.

The resultant report revealed significant evidence to support the fact that three separate societies inhabited the Island: A Nokomis Phase Middle Woodland occupation dating approximately 200 B.C. to A.D. 200, a Lakes Phase Late Woodland occupation dating approximately A.D. 1000 to A.D. 1400, and a John Badger Phase Historic Chippewa occupation dating approximately to the late 19th century. Artifacts were also discovered in all parts of the Island, including a workshop area, pottery shards, stone tools, copper beads, copper awls, historic fishing lures, and evidence supporting potential unmarked burials and cemeteries. Further, based on Lac du Flambeau Chippewa Tribal oral history, a significant territorial battle occurred on the Island between the Chippewa Tribe and the Sioux Tribe. Evidence of this battle have been discovered in and around the Island. Finally, according to Chippewa Tribal legends, the physical location of the Island, when viewed in conjunction with other significant sites on the Reservation, plays a significant role in the Tribe's philosophy and beliefs connected to the Tribe's origin and creation. Tribal legends also indicate a taboo to anyone who walks on, inhabits, or degrades the Island. Therefore, the Island plays not only a significant role with regard to archaeology and history, but weighs heavily in the Tribe's religious beliefs. As a result, the Tribe has continuously viewed the Island as sacred, worshipping on the waters around the Island for various ceremonial purposes. This revealing archaeological study, together with the revelation that the Island was not owned by the Tribe, launched an aggressive campaign by the Tribe to protect the Island from degradation.

In 1976, the Tribe was successful in obtaining State and National Historic Register status. Publicity about the impacts to the Island by potential development led to the State of Wisconsin adding Strawberry Island to its Ten Most Endangered Historic Properties List in 1994.

>From the mid-1970s to the present day, the Tribe has unsuccessfully attempted to purchase the Island. Discussions began in 1976, when the owner subdivided the Island by plat into 16 lots. Negotiations included bonafide offers by the Tribe to options of federal land trades involving the Bureau of Land Management. Each option failed on the base disagreement between the Tribe and the owner of a price mutually agreeable to the parties. In 1988, the owner listed the property for sale for approximately $350,000, but shortly after the Tribe showed an interest in the Island, the price escalated to $1.2 million. The Tribe asked for an appraisal from the owner justifying the asking price, but the resultant effect was for the price of the Island to escalate to $3.5 million, which is the current asking price to date. In 1995, the Tribe made an offer of $200,000, which is 40% more than the highest appraisal conducted by certified appraisers hired by the Tribe. The offer was rejected, and the owner obtained a sanitary permit for one of the lots, and applied for a building permit for the same lot (Lot #7). A tribal public hearing and a county public hearing was conducted on whether a permit to develop a condominium project on the Island was in the public's best interests. The county hearing resulted in a denial of the building permit by the Vilas county Zoning Committee. An appeal to the Board of Adjustment resulted in an affirmance, and the owner appealed that decision to the Vilas County Circuit Court. Before a decision was rendered, the owner applied for a building permit on another lot on the Island. Immediately thereafter, in October, 1996, the Tribe petitioned for and received a temporary restraining order, against the Vilas County Zoning Administrator issuing any building permits until the previously filed appeal was decided. A preliminary injunction remains in effect...The owner has made it clear he wants to sell the Island to the Tribe. The Tribe believes, however, that with the advent of Indian gaming, the owner is under the misperception that the Tribe has the financial wherewithal to purchase the Island at any price. The Tribe is unwilling to purchase the Island for anything other than a justified figure.

Land is central to Native American culture. More specifically, sacred land is the center of many Indian religious practices. Native American religious worship focuses on the intrinsic spiritual significance of the site where spiritual events occur and not on the events themselves. Therefore, the loss of tribal lands has had a devastating effect on Tribes.

No situation is more evident than the one surrounding Strawberry Island.

This particular land loss incurred by the Tribe, coupled with the fact that Congress has yet to pass legislation that would protect sacred sites from arbitrary governmental actions, even when those actions result in the destruction of the site, leaves the Lac du Flambeau Tribe facing an insurmountable uphill battle. Meanwhile, the owner of Strawberry Island continues to threaten to clearcut the Island and other destructive activities that place pressure on the Tribe to agree to his terms.

To help the Lac du Flambeau Tribe reclaim Strawberry Island write or

  • Vilas County Zoning Administrator, Vilas County Courthouse, Eagle River WI 54521, phone: (715) 479-3620.

  • Vilas County Zoning Committee, Chairperson, Vilas County courthouse, Eagle River WI 54521.

  • Vilas County Board of Adjustment, Chairperson, Vilas county Courthouse, Eagle River WI 54521.

  • Editor, Lakeland Times Newspaper, Minocqua WI 54548.

  • Sen Feingold, 502 Hart Senate Office Bldg, Washington DC 20510. Phone: (202) 224-5323.

  • Senator Roger Breske, Room 408 South, State Capitol, PO Box 7882, Madison WI 53707. Phone: (608) 266-2509.

  • Rep. Joseph W. Handrick, Room 21 North, State Capitol, PO Box 8952, Madison WI 53708. Phone: (608) 266-7141. For more information contact the Lac du Flambeau Chippewa Tribe, Box 67, Lac du Flambeau WI 54538. Phone: (715) 588-3303.

Reprinted, with permission of the author, from the Winter 1997/98 issue of On Indian Land, PO Box 2104, Seattle WA 98111. Phone: (206) 525-5086.



The County Board of Adjustments voted in favor of the tribe, but Mills is in turn appealing that decision. The issue is not yet resolved, and public pressure can help immensely.



How You Can Help Today

[::] You can write the developer a respectful letter:
Walter Mills, P.O., Box 4859, Aspen, CO 81612.
(It is especially important to write if you are from Colorado).

[::] You can write Mills' firm:
Beaver Builders Inc., 1534 River Glen Ave., Rhinelander WI 54501.

[::] You can write or call Wisconsin state legislators and your federal representatives about your concerns.

[::] You can write your local newspaper, or TV/radio news, or a newspaper in Colorado.

[::] Please send a copy of letters and a contribution to:
Strawberry Island Preservation Committee,
c/o Tribal Council,
Box 67,
Lac du Flambeau, WI 54538.
(Also ask for a petition and a Lac du Flambeau News.)

For more information, call toll-free 1-800-964-4300.
Your letters are a simple gesture that can help in protecting a cultural and natural treasure for future generations.

Midwest Treaty Network, P.O. Box 14382, Madison WI 53714-4382
Tel./Fax (608) 246-2256, E-mail:mtn@igc.org

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