Minnesota Lawyer
Following more than three years of legal wrangling, three judicial recusals, and a historical dive into the meaning of a series of 19th-century treaties between the U.S. government and Native Americans, an Ojibwe man who sought to test the boundaries of his off-reservation harvest rights has been convicted of one gross misdemeanor, illegal netting, as well as three lesser charges.
In a written decision issued in the wake of a stipulated-facts trial held in Brainerd in early September, 9th Judicial District Court Judge Jana Austad concluded that James Warren Northrup III, of Cloquet, broke state law when he set a gill net in north central Minnesota’s Gull Lake on August 28, 2015.
As to Northrup’s claim that he was legitimately exercising his right to off-reservation harvest in the so-called 1855 ceded-territory — a vast swath of north central Minnesota that the Ojibwe sold to the U.S. government in the Treaty of 1855 — Austad wrote that “the record is insufficient to establish that the defendant has usufructuary rights on Gull Lake.”
More specifically, the judge ruled that Northrup failed to show that he had usufructuary rights in the ceded territory because he is enrolled as a member of the Fond du Lac Band, which was not a signatory to the 1855 treaty.
But that left the biggest question raised by the case unanswered: What off-reservation harvest rights, if any, do other Minnesota Ojibwe have in the 1855 territory?
In an earlier order, Austad wrote that Northrup’s co-defendant, Todd Thompson, did in fact retain usufructuary rights on Gull Lake because he is enrolled in the White Earth Band of Ojibwe and therefore a member of “the Chippewa of the Mississippi,” which was a signator to the 1855 treaty.
However, Austad didn’t find that Thompson had usufructuary rights throughout the entire ceded territory. Rather, she wrote, the Chippewa of the Mississippi never relinquished usufructuary rights within the boundaries of the former Gull Lake Reservation — which was created by the Treaty of 1855 and then eliminated in the Treaty of 1864.
The latter treaty, Austad continued, guaranteed that Indians would retain rights to occupy the Gull Lake Reservation until the government satisfied Article VI of the 1864 treaty, which called for various expenditures and improvements to be made on behalf of the Ojibwe. According to the “the uncontested evidence in the record,” the U.S. never fully complied with those obligations and “as such, many of the Chippewas of thee Mississippi, Leech Lake, and Lake Winnibigoshish remained in their pre-treaty locations.”
“The right to continued occupancy of the Gull Lake reservation inextricably included usufructuary rights, including the right to fish on Gull Lake,” the judge wrote.
Following that ruling, Crow Wing County Attorney Donald Ryan dismissed the charges against Thompson “in the interests of justice.”
Why?
“That wasn’t something that was briefed by either party, I made the decision to pursue something more clear with Mr. Northrup,” Ryan said in telephone interview, making reference to Judge Austad’s parsing of the Article VI issue.
“But the state’s position is that the 1855 treaty is silent on reserving usufructuary rights. And because the treaty is silent, we believe there is no hunting of fishing and gathering rights reserved in the 1855 territory,” Ryan added.
Joseph Plumer, one of Northrup’s attorneys and a member of the Leech Lake Band of Ojibwe, said he was disappointed by Austad’s “narrow” ruling. He pointed to the U.S. Supreme Court’s ruling in Minnesota’s seminal treaty rights case from 1999, Minnesota v. Mille Lacs Band of Chippewa Indians, in which the majority held that the extinguishment of usufructuary rights requires both an explicit agreement and compensation. Such language is that absent in the 1855 treaty, Plumer said.
“I see this as one in a long line of cases that will form the factual basis for a declaratory action in the federal court,” he added. “We don’t want to be in state courts. State courts are not the proper forum to address the agreements the tribe has with the federal government.”
Frank Bibeau, Northrup’s other attorney and a White Earth band member, said the issue of off-reservation treaty rights is important to the White Earth and Leech Lake bands — and not just because of fishing rights. He said it’s part of a broader push by the state’s two most populous Ojibwe bands for co-management of natural resources throughout much of north central Minnesota, a legal standing that could give the tribe a greater say in everything from pipeline construction to mining.
Bibeau, who serves as the executive director of a native group called the 1855 Treaty Authority, said he hopes that the state will ultimately enter into an agreement over the White Earth and Leech Lake bands that is equivalent to the one reached with three northeastern Minnesota Ojbiwe bands in the so-called Tri-Band Agreement in the late ’80s. Those bands were signatories to treaties in 1837 and 1854, both of which expressly retained off-reservation harvest rights. Two of the bands, Bois Forte and Grand Portage, currently lease their usufructuary rights to the state but the third, Fond du Lac, dropped out of the agreement.
Ultimately, Bibeau continued, similar state recognition of the off-reservation harvest rights in the 1855 territory could lead the state to lease usufructuary rights from the Leech Lake and White Earth bands, an arrangement could potentially yield tens of millions of dollars a year.
Despite the outcome of the Northrup case, Bibeau said that prosecutors in northern Minnesota have become increasingly cautious about bringing criminal charges against Native Americans over off-reservation fishing, hunting and gathering. In May, he noted, tribal members affiliated with the 1855 Treaty Authority set gill nets in Lake Bemidji as part of a planned protest. While the nets were confiscated, he pointed out, the netters have not yet been cited in connection with the demonstration.
