Minnesota appeals court sides with state in Chippewa netting treaty case

A Minnesota appeals court has upheld the conviction of an Ojibwe man for illegally netting fish on Gull Lake, setting up a potential state Supreme Court fight over tribal treaty rights.

The case dates to 2015, when James Northrup of Cloquet and several other tribal activists publicized a plan to fish and harvest wild rice out of season in order to provoke a court challenge to Minnesota's interpretation of an 1855 treaty.

In an escalating showdown with Department of Natural Resource (DNR) officers, Northrup and another man canoed out to the center of the lake and set a gill net while a group of supporters and journalists watched from shore. DNR officers ticketed him immediately and pulled up the net. The case has been slowly working its way through court for the last four years.

Northrup argued that all Minnesota Chippewa, or Ojibwe, have special off-reservation fishing, gathering and hunting rights on Gull Lake and the surrounding territory, which some Chippewa bands ceded under the treaty. While the bands gave up ownership of the land, Northrup argued, they never relinquished their rights to use it for harvesting food. Those rights have been guaranteed to the Chippewa in treaties dating back to the 1700s. No treaties signed since, including the 1855 treaty, have ever explicitly revoked those rights, he said.

The state and the DNR, however, have argued that by ceding ownership, the bands did give up their special hunting, fishing and gathering rights on the land. And the courts have agreed.

Crow Wing County District Court convicted Northrup of a gross misdemeanor in 2018, and on Monday a split appellate court ruled, 2-1, to uphold that conviction.

The earlier treaties "only recognized the Chippewa Tribe's aboriginal right to occupancy of the land, to which the right to hunt, fish and gather is incidental," Judges Carol Hooten and Renee Worke said in their decision. Once occupancy was given up, the land-use rights were as well.

Judge Roger Klaphake dissented, saying that courts are required to interpret the terms of a treaty "as the Indians themselves would have understood them."

So, while the 1855 treaty extinguished all Indian title to the land, Klaphake said, it did not terminate "any treaty-guaranteed rights." He said the district court should be forced to go back and look at the earlier treaties to decide whether the Indians understood them to guarantee hunting and fishing rights to the land.

Frank Bibeau, Northrup's lawyer and executive director of an organization called the 1855 Treaty Authority, said he and Northrup are deciding how to proceed. They could appeal to the state Supreme Court or try the case in federal court.

The ruling "shows exactly what the problems are with the Minnesota court system in regard to treaty rights," Bibeau said. "An agreement is an agreement. But they're basically saying that some treaties don't mean as much as other treaties if a land deal isn't involved."

Crow Wing County Attorney Don Ryan, who represents the state in the case, declined to discuss the ruling in detail, saying that the matter is still ongoing while prosecutors wait to see if it will be appealed. Ryan added that he believes case law on treaties has been well-established.

"The court got it right," he said.

Greg Stanley • 612-673-4882