Town of Lac du Flambeau sues Bureau of Indian Affairs

If there’s one thing there’s no shortage of in the ongoing expired road easement issue in Lac du Flambeau between the Lac du Flambeau Band of Lake Superior Chippewa Indians and the town is legal action.

Since the road issue began on Jan. 31 when the tribal council had road crews put up barricades on Annie Sunn Lane, Center Sugarbush Lane, East Ross Allen Lake Lane and Elsie Lake Lane because of expired easements on portions of tribal land that crossed the roads, there has been plenty of litigation, including claims against the tribe filed by property owners, lawsuits against the town filed by property owners and a lawsuit filed by the United States Department of Justice against the town. 

The barricades remain lifted for the time being as the town pays the tribe a monthly, escalating fee that began in May with a $20,000 payment; prior to that, an initial 90-day, $60,000 agreement between the tribal council and the town established the barricade lifting, an agreement reached with the intention of providing both entities time to meet and hammer out a long term resolution for the road issue. 

To date, they’ve met three times since May — not at all during the month of August — and as of Thursday, Sept. 14, town clerk Susan Schoonover said there’s been no response by the tribal council to requests from the town board to meet again to continue negotiations.  

Following the $20,000 payment the town paid to the tribe in May, the escalating $2,000 a month was added; for the period between Sept. 12 and Oct. 12, that amount was $28,000, paid by the town during the first week in September. 

Despite the money the town is paying the tribe on a monthly basis, there’s no guarantee by the tribal council the barricades won’t be re-established at any time. 

It’s against that backdrop the legal action related to the entire matter has been taking place, one of the most recent pieces of litigation from the town of Lac du Flambeau itself, a lawsuit filed in the United States District Court for the Western District of Wisconsin on Aug. 28 against the United States Department of the Interior and the department’s Bureau of Indian Affairs (BIA). 

‘Not cooperating’

In the 12-page complaint, prepared by Green Bay attorney Frank Kowalkowski, the outside counsel hired by the town board early in the road easement issue, 26 different Freedom Of Information Act (FOIA) requests were submitted to the BIA on February 23, 2023, as they relate to the four roads and, according to Kowalkowski, the BIA provided verification the FOIA requests were received. 

According to the United States Department of Justice website, under federal law, “all federal agencies are required to respond to a FOIA request within 20 business days, unless there are ‘unusual circumstances.’” 

“This time period generally begins when the request is received by the FOIA office of the Department of Justice component that maintains the records sought,” the USDOJ website reads.

Long story short, the FOIA requests he submitted on behalf of the town have never been, Kowalkowski contends in the complaint, complied with by the BIA. 

“Upon information and belief, the Defendants’ failure to produce the requested documents, which seek information relative to the four town roads barricaded by the Lac du Flambeau Band of Lake Superior Chippewa Indians ... was done to gain a strategic advantage in related litigation regarding the Band’s closure of the roads and the United States’ claim against the Town for trespass damages and ejectment from the roads,” Kowalkowski wrote in the complaint he filed. 

“They’re not cooperating,” Lac du Flambeau town chairman Matt Gaulke told the The Lakeland Times last week, referencing the BIA. “It’s a federal agency and it’s not following federal law. You have to respond in a certain manner and within a certain time frame and they haven’t.”

Gaulke acknowledged — and Kowalkowski has it documented in his filing — there have been responses from BIA staff but not the responses the town is seeking. 

“Yeah, we have it but we have to double check it,’” Gaulke said. “Or ‘We gotta get somebody to sign off on it.’ So, they’re not honoring a FOIA request and the only way we can get information out of ‘em is to file a lawsuit against ‘em.”

Brian Jopek may be reached via email at [email protected].