Judge hears claim fish netting on northern Minnesota lake protected under 1855 treaty
BRAINERD, Minn. — It is now up to 9th Judicial District Judge Jana M. Austad to decide whether a 50-year-old Cloquet, Minn., man charged with illegally setting a gill net in Gull Lake is protected under the treaty rights drawn up between tribes and the U.S. government in 1855.
Austad, a judge based in Cass County, took over the case in August 2017 after four 9th Judicial District judges in Crow Wing County recused themselves.
James Warren Northrup faces charges following an August 2015 incident on Hole-in-the-Day Bay on Gull Lake. Northrup and Todd Jeremy Thompson deployed a gill net from a canoe while a crowd of people stood on shore, without a state license. It is illegal under Minnesota law to fish with a net unless specifically authorized. Charges against Thompson have since been dismissed, but the case with Northrup continues.
Northrup appeared for a court trial Wednesday, Sept. 5, in Brainerd. Northrup, in jeans and a blue Under Armor T-shirt, sat next to his legal team — John Plumer, an attorney in Bemidji, and Frank Bibeau, an attorney in Deer River — holding a feather given to him before the trial started. According to the Indians.org website, feathers symbolize trust, honor, strength, wisdom, power, freedom, among other things.
Northrup waived his rights to a jury trial, while under oath; he also answered "Yes" to having a clear mind. The court trial was less than two hours long and consisted of both legal teams presenting their arguments on the case. Crow Wing County Attorney Don Ryan represented the state. Ryan enlisted Robert Cary, an assistant attorney with the Minnesota Attorney General's Office, to assist on the case. Cary did not speak during the trial.
Ryan told the judge no one was disputing the facts of what happened on Aug. 28, 2015, when Minnesota DNR conservation officers observed Northrup and Thompson in a canoe on Gull Lake. Officers watched Thompson open a blue tote and start putting a gill net into Gull Lake as Northrup paddled the canoe. After placing the net into Gull Lake, the two paddled back to shore. Conservation officers pulled their patrol boat up next to the canoe, identified themselves as state conservation officers and directed the canoe to stop.
Thompson and Northrup refused to stop, paddled to shore, exited their canoe and disappeared into the crowd on shore. Their canoe was quickly loaded onto a truck by other individuals. The canoe did not display proper registration and there were no personal floatation devices in the canoe, the complaint stated.
Conservation officers later made contact with the men, who stated the net belonged to them and they admitted to setting the gill net. They did not have a license or permit from Minnesota and they claimed they had federal treaty rights to place the net in Gull Lake.
The question for the court, Ryan said, is if Northrup had a right to net without a state license or if he is protected under the 1855 treaty under the Fond du Lac Reservation Lake Superior Band of the Minnesota Chippewa Tribe. Ryan said he is not protected, citing several treaties between the U.S and the Chippewa Indians, specifically stating he was enrolled to be a member of the Fond du Lac Band at the time of the incident, but was not specifically a member of the band.
The defense disagreed, citing Northrup is a member.
The defense filed court papers Tuesday — a day before the scheduled trial — on Northrup's status of membership into the Fond du Lac tribe.
Dale Greene of the Leech Lake Band of Ojibwe, outside of court, said the Minnesota Chippewa Tribal Executive Committee, an elected body of the Minnesota Chippewa Tribe, is the body making decisions on tribe membership. The committee is comprised of six member reservations of Bois Forte, Fond Du Lac, Grand Portage, Leech Lake, Mille Lacs and White Earth.
The Fond du Lac Reservation Tribal Council prescreened all applications seeking enrollment into the Fond du Lac Reservation Lake Superior Band of the Minnesota Chippewa Tribe. In a court file, the council stated Northrup is currently enrolled with the Leech Lake Reservation Pillager Band of the Minnesota Chippewa Tribe. The council reviewed and approved the request of relinquishment of Northrup's membership with the Leech Lake Reservation and found him to be eligible for enrollment with the Fond du Lac Reservation.
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Plumer said Northrup believed he had the right to net under the 1855 Treaty, which allows members of the Anishinaabe bands rights to hunt, fish, gather and maintain sacred sites on the land ceded to the U.S. government. Plumer told the judge, in a apologetic way, Minnesota courts do not have a trusting relationship with the bands, as the federal courts do. He said the federal courts have been the government agency working with the bands on treaty agreements — since 1825 when the U.S. government arranged a Prairie du Chien treaty between the Dakota and Ojibwe. Plumer said there are treaties built upon more treaties that were agreed upon over the decades.
Plumer said Northrup is part of the Ojibwe tribe and is protected by the treaty.
The defense also argued a 1999 U.S. Supreme Court decision concerning Mille Lacs Lake supported their rights to net fish on Gull Lake, a decision which also protects his client. Ryan disagreed, stating the 1855 Treaty did not specifically reserve any rights to the Indians.
"Therefore all aboriginal title was ceded and that cession includes fishing and gathering rights that are incidental to those aboriginal rights," Ryan stated in a court document on the case. Ryan said the defense took this case "completely out of context" in its argument.
Ryan said if the court decides Northrup does not have the rights under the treaty to net, he would be prosecuted like any Minnesota resident would be with regard to hunting and fishing.
After the court trial, Plumer said he thought Austad was open-minded enough to consider his client's arguments.
"We believe ... under the Minnesota Ojibwe Tribe that all the territories of all the different treaty areas are all controlled by the Tribal Executive Committee and that we are one tribe," Plumer said. "This committee determines whether or not people have rights to go outside the area they were historically enrolled in.
"We don't believe it's as clear cut as the (state) believes as far as aborigination of rights that existed at the time of the treaties of 1854 and 1855. ... We believe unless it's clearly and unrequitedly surrendered that they continue to exist and we believe that is the case here."
"The state of Minnesota is a great state, the United States is a great country and it's been our sacrifice that has made the United States a great country," Greene said. "It's our sacrifice that we're still feeling the repercussions of that has made this state of Minnesota a great state. The brownstone, the sandstone, the timber, the raw resources made this a great state. All we are asking is to honor the treaties that we made with the United States that made this state possible. (We are) exercising our hunting, fishing, gathering of properties as it is our property rights. We want to guarantee that people have pristine drinking water. We want the sport fishermen's grandchildren, great-grandchildren to enjoy the sport that they love while we enjoy what the creator gave us.
"It may look like we are taking fish or doing this or that but we are doing it at 1 percentage of what is taken throughout the fishing season. ... We're not the bad guys. We have poverty, historical, social and economic conditions that we are still paying for those treaties."
Austad, who has taken the case under advisement, has up to 60 days to make a decision.