concurring.
I join the court in its discussion and holding in parts I, II, and III.A, B, C and E. However, I concur in the reversal of the district court’s summary judgment under part III.D. I write separately to express a somewhat different view of the evidence of racism in this case.
By their treaty with the United States (Treaty of September 30, 1854) the Chippewa Indians retained rights outside the boundaries of the reservation, including the (unrestricted) right to fish certain waters in Wisconsin. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir.1983). The defendants consider the Chippewas’ methods of spearfishing an abuse of the terms under the treaty. Because only Indians can use spotlights to spear spawning game fish (methods otherwise prohibited by Wisconsin law), race inevitably pervades the conflict between the Indians who want their fishing rights and the Wisconsin residents who want those rights restricted.
Section 1982, enacted as part of the Civil Rights Act of 1871, guarantees to all citizens the same property rights as enjoyed by white citizens. The obvious assumption of section 1982 is that white citizens have certain property rights, and that those same rights might be denied to others on account of race. The irony in this case, however, is that the Indians have the exclusive fishing rights and non-Indian citizens wish to protest, making racial overtones inevitable. These facts distinguish this case from the employment or housing discrimination suits that we commonly encounter, where property rights may be obtained regardless of race.
On the surface, at least, this is a protest case. Because only Indians have the right to spear fish, it is not likely that the defendants could protest without dealing with the issue of race in some manner. Race obviously played a major part in the original treaty preserving Indian fishing rights. Necessarily it would play some part when members of the public demonstrate to take those rights away.
I am not comfortable with the court’s discussion separating evidence of racist activity from racist motivation. While some may argue that “[w]e live in a society in which racism is pervasive and racial slurs are common,” [supra p. 1262] it is just as likely that some of the protesters were as offended by the racial slurs as they were by the Indians’ fishing methods. The actions taken by some probably expose their motivation. A district court cannot read a person’s mind, so in order to determine motive, the court must consider the person’s actions. Slurs may result in the heat of an encounter that was motivated by a sincere objection to spearing fish. In that *1265case the racial motive may be insignificant. On the other hand, if a person is drawn to the protest in order to use the opportunity to vent racial animus against Indians, he violates section 1982, regardless of his objections to the fishing methods.
I concur in the result because the defendants’ affidavits are sufficient to place in dispute the issue of whether race played a motivating part in their actions. This “demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” Arlington Heights v. Metropolitan Housing Dev’l Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977). At trial, the district court will need to determine whether the defendants meant to protest fishing rights, malign Indians, or both.