Lawsuit part of campaign to expand “harvest rights” across entire 1855 ceded territory

Take a look at the Brainerd Dispatch article below by Jennifer Kraus. It’s the latest development in a case over illegal gill netting of walleye on Gull Lake.

We need to watch this case over an attempt to establish “treaty harvest rights” that are non-existent in the 1855 Treaty. In addition to creating such rights, the definition of “harvest rights” would be greatly expanded to include “property” rights. If successful, the attempt could turn the entire 1855 Treaty ceded territory into another [greatly expanded] Mille Lacs fiasco.

Douglas Meyenburg, President, PERM

In split decision, Court of Appeals rules in favor of state in netting case

By Jennifer Kraus | Dec 20th, 2019

This case began when two Ojibwe men set a gill net in Hole-in-the-Day Bay in 2015 as part of an organized demonstration highlighting what protesters described as off-reservation hunting and gathering rights established by an 1855 treaty. The men set the net from a canoe while a crowd of people on shore and Minnesota DNR officials on the water watched.

In a 2-1 split, the Minnesota Court of Appeals recently ruled in favor of the state in an appeal by a Fond du Lac Band member of his gross misdemeanor conviction for netting on Gull Lake in 2015.

The Minnesota Court of Appeals released its unpublished opinion Monday, Dec. 16, with a majority ruling in favor of the state. Presiding Judge Carol Hooten and Judge Renee L. Worke agreed with the Crow Wing County District Court’s decision. Retired Judge Roger Klaphake, the dissenting judge, favored the appellant, James Warren Northrup III, 51.

Northrup was one of two Ojibwe men charged for setting a gill net in Hole-in-the-Day Bay on Gull Lake in 2015 as part of an organized demonstration highlighting what protesters described as off-reservation hunting and gathering rights established by an 1855 treaty. Northrup and Todd Jeremy Thompson, 50, set the net from a canoe while a crowd of people on shore and Minnesota DNR officials on the water watched. DNR officials issued citations to the men for illegal taking of fish, netting without a license, lack of boating registration and for not having flotation devices. Charges against Thompson were later dismissed, while Northrup was convicted in October 2018.

The state Court of Appeals heard oral arguments in Northrup’s case Sept. 19 in Bemidji.

Frank Bibeau, an attorney for Northrup, told the Dispatch in October pursuing the appeal was a matter of showing the state of Minnesota all Chippewa Indians — otherwise known as Ojibwe or Anishinaabe — have rights to hunt, fish and gather in the 1855 ceded territory, of which Gull Lake is a part. Bibeau said a 1999 U.S. Supreme Court ruling concerning those rights on Mille Lacs Lake establishes the legal recognition of the rights that treaty bestows on Northrup and any other Ojibwe.

Bibeau said Wednesday he is disappointed in the court’s 2-1 ruling, but said the dissenting judge’s opinion was “very helpful, very correct and I think the decision goes a long way to help us show the attorney general and possibly the federal court how and where the Minnesota courts are unwilling to follow the U.S Supreme Court precedent, even when a member of the panel points it out to them.”

Arguing on behalf of the state, Crow Wing County Attorney Don Ryan in October said Northrup’s membership in the Fond du Lac Band means he is not party to any treaty establishing those rights in the area. To support this argument, Ryan pointed to an 1854 treaty establishing a north-south boundary between the territory of the Mississippi River Band of Chippewa Indians and the Lake Superior Chippewa Bands. As a Lake Superior Chippewa band, the Fond du Lac Band was not a signatory to the 1855 treaty, Ryan said.

On Wednesday, Ryan said he agreed with the Court of Appeals ruling and he believes the conviction should be affirmed. Ryan declined to comment further as the appeals process is still open and Northrup’s attorneys may still file a petition for the Minnesota Supreme Court to review the case, which Bibeau said he plans to do.

“We have a couple of irons in the fire,” Bibeau said. “We believe we can get this corrected through action by the executive branch.”

Affirming the ruling

Northrup argued the state is without jurisdiction to prosecute him for the charged offenses because he is an Indian, his conduct occurred in “Indian country” and criminalization of his conduct constitutes a deprivation of federally guaranteed treaty rights. Northrup argued Gull Lake “is physically located within the original Gull Lake Reservation, which was originally reserved in the 1855 Treaty with the Chippewa,” the court document stated.

The appeals court stated Northrup is correct — the 1855 Treaty established a reservation encompassing Gull Lake. In exchange for the establishment of a reservation at Leech Lake, the Chippewa later ceded the Gull Lake Reservation land to the United States in unequivocal language in an 1864 treaty. In so doing, the Gull Lake reservation ceased to exist and the land within its boundaries thus ceased to constitute “Indian country,” the opinion stated.

The treaties Northrup relied upon did not provide for any express reservation of rights to Gull Lake, and instead only recognized the Chippewa tribe’s aboriginal right to occupancy of the land, to which the right to hunt, fish, and gather is incidental, Worke stated in the opinion. “This distinction is crucial because the (Minnesota Supreme Court) … also recognized that when hunting, fishing and gathering rights exist only by virtue of the right of occupancy rather than by express reservation in a treaty, the extinguishment of Indian title to the land has the effect of abrogating these use rights as well.”

Northrup argued the 1795, 1825 and 1826 treaties did no more than recognize the Minnesota Chippewa’s aboriginal rights of occupancy to the land, and because Northrup didn’t argue the Fond du Lac Band retained any such rights to the land ceded by the 1855 Treaty, the judges found Northrup failed to demonstrate he possessed any rights to Gull Lake.

The Court of Appeals also looked at Minnesota v. Mille Lacs Band of Chippewa Indians, a U.S. Supreme Court case from 1999. In his brief, Northrup argued a different conclusion is compelled by the U.S. Supreme Court’s opinion in Mille Lacs. At issue in Mille Lacs was an 1837 treaty in which several bands of Chippewa — including the Mille Lacs Band — agreed to sell land east of the Mississippi river in central Minnesota and Wisconsin.

In 1990, the Mille Lacs Band of Chippewa filed suit in federal court seeking a declaratory judgment the band retained the rights reserved by the 1837 Treaty. The court held “there is no reason to believe that the Chippewa would have understood a cession of a particular tract of land to relinquish hunting and fishing privileges on another tract of land.”

The appeals court judge stated, “Northrup is an individual private party, he does not represent the Mille Lacs Band of Chippewa Indians, and neither is he a member of that Band. Second, the state does not appear to dispute any of the issues directly decided by the Supreme Court in Mille Lacs, and Northrup does not identify what specific facts decided by the court the state is attempting to relitigate.”

Dissenting opinion

In a dissenting opinion, Klaphake disagreed with the majority’s conclusion the interpretation of Indian treaties didn’t apply to this case.

“But in Mille Lacs, the Supreme Court observed that we apply the canons of construction to treaties to give effect to the terms as the Indians themselves would have understood them,” Klaphake wrote.

The application of rules, called canons of construction, that a court uses to interpret a written document under these circumstances is equally necessary to achieve the goal expressed in Mille Lacs of interpreting the terms as the Indians themselves would have understood them, Klaphake argued.

“There is no logical reason to limit the application of the canons of construction to land-cession treaties,” the judge stated. “Indeed, the United States Supreme Court has applied the canons to treaties that do not involve the cession of land to the United States. … I would therefore conclude that the canons of construction apply and require an examination of the historical record surrounding the treaty negotiations in order to interpret the terms of the treaties.”

Based on the circumstances of this case, Klaphake would have remanded the case to the district court to make factual findings in light of the historical record.

“As the majority observes, the 1855 Treaty with the Chippewa extinguished all Indian title to the land in question, and with it all the incidental rights to hunt and fish. But it did not abrogate any treaty-guaranteed rights, and such rights must be expressly abrogated. … Accordingly, I would reverse and remand for the district court to make additional findings of fact on the 1795 and 1825 treaties. Those findings should reference the canons of construction that apply to Indian treaties and whether the Indians understood these treaties as guaranteeing usufructuary rights. I would also allow the district court in its discretion to reopen the record to provide ‘the history of the treaties, the negotiations, and the practical construction adopted by the parties.'”