This is the second in a series of posts addressing some of the most commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post addressed casinos, hunting and fishing rights, and taxes. This second post, unlike the first, is devoted to just one question, namely, why doesn’t the unique legal treatment of Indian tribes or their members violate the Constitution’s guarantee of equal protection?
Confusion continues over the new Department of Administration rules announced December 1 which require advance permits for many demonstrations held within the Wisconsin State Capitol. Among the more controversial aspects of the policy are its applicability to small groups of protestors and the discretion granted to the State Capitol police to require permit seekers to pay security costs in advance. I have already written about the manner in which this policy goes too far, and how it impermissibly infringes upon the First Amendment rights of protestors.
One response to the criticism of the new DOA policy has been to compare the DOA policy to the rules governing demonstrations at the United States Capitol building. At first reading, it appears that protestors are completely banned from the United States Capitol building under guidelines issued by the United States Capitol Police. Those guidelines state that “demonstration activity is prohibited and will not be permitted inside any Capitol buildings.” You can read the U.S. Capitol Police policy here.
At a recent forum to discuss the new DOA policy, one participant asked, if the U.S. Capitol Police can ban demonstrations altogether within their building, why can’t the Department of Administration impose restrictions in the State Capitol building that are something less than a complete ban? The simple answer to this question is that the U.S. Capitol building is not considered a public forum, while the Wisconsin State Capitol is.
On December 1, the Wisconsin Department of Administration released new rules governing access to state facilities, including the State Capitol, for protests, rallies, demonstrations and any other “gathering of four or more people for the purpose of actively promoting any cause.” You may read the entire policy here.
The most controversial aspects of the new policy are the fact that it applies to small groups of individuals (four or more), the fact that it would require the filing of a permit application 72 hours in advance of any planned event, and the fact that it allows the state to require the advance payment of a bond to cover security costs when such payment is determined to be necessary by the State Capitol Police. The rules contain an exception to these requirements for a defined category of “spontaneous events.”