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Minnesota Court of Appeals takes up treaty-rights netting case

Oct 20, 2019 06:05AM ● By Editor

Area DNR officer Tim Collette issues a citation to James Northrup III while his boat partner Todd Thompson videotapes the event at the Hole-in-the-Day access to Gull Lake in 2015. The two men were cited for illegally taking fish with a gill net. Northrup is appealing his conviction in the Minnesota Court of Appeals. Steve Kohls / Brainerd Dispatch file photo

By Chelsey Perkins from the Rochester Post-Bulletin  October 17, 2019

A Fond du Lac Band member is appealing his gross misdemeanor conviction for netting on Gull Lake in 2015, asserting the action was within his treaty rights.

James Warren Northrup III, 51, was one of two Ojibwe men charged for setting a gill net in Hole-in-the-Day Bay 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 Department of Natural Resources officials on the water watched. DNR officials issued citations to the men for illegal take of fish, netting without a license, a lack of boating registration and for not having flotation devices. Charges against Thompson were later dismissed, while Northrup was convicted in October 2018.

The Minnesota Court of Appeals heard oral arguments in Northrup’s case Sept. 19 in Bemidji and is expected to issue a ruling within 90 days of that date.

Frank Bibeau, an attorney for Northrup, said pursuing the appeal was a matter of showing the state of Minnesota that 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.

“Sometimes it’s advantageous to get into a fight like that because it educates people,” Bibeau said during a phone interview Tuesday, Oct. 15.

Arguing on behalf of the state, Crow Wing County Attorney Don Ryan 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.

“Northrup has no rights under the 1855 treaty and now he’s been convicted, and that’s what’s up on appeal,” Ryan said by phone Tuesday. “I think they should affirm that he has no rights. … That’s the threshold question, and we have to answer that before we get to anything else.”

Ryan’s position on Northrup’s rights stands in contrast to Cass County Judge Jana Austad’s interpretation of Thompson’s rights. Austad, who presided over the district court case when a Crow Wing County judge recused herself, ruled Thompson’s membership in the White Earth Band meant he retained treaty rights to fish in Gull Lake. In the wake of that interpretation, Ryan said he thought about filing a reconsideration, but instead dropped charges against Thompson.

Bibeau said Ryan’s decision to drop charges against Thompson is an example of a long-standing legal tradition in the state of Minnesota to avoid acknowledging the treaty rights of Native peoples. He said Ryan was attempting to relitigate matters already rejected by the Supreme Court in the Mille Lacs case, which Ryan was a part of at the time as the Crow Wing County attorney.

Ryan, on the other hand, said the Mille Lacs case was not relevant to the facts of Northrup’s case, despite the appellant’s assertion of its centrality.

“The appellants really want to say that (case is) the game changer and it changed everything, but ultimately, that’s going to be a court — someplace — to decide,” Ryan said.

Bibeau said he thought there was a chance the Court of Appeals may remand the case back to Crow Wing County District Court, given the local court failed to factually review treaties signed in 1825 and 1826. These treaties, Bibeau said, support non-reservation rights to hunt, fish and gather for all Ojibwe peoples in the state and are assumed to be part of later agreements as well.

Bibeau said if the case is remanded, he suspects Ryan may drop Northrup’s charges. While this may sound like a good outcome, Bibeau said he’d rather see a ruling in his client’s favor by the Court of Appeals, particularly given the potential implications the case could bring for the state.

“Ultimately, they know they don’t have the case law on their side,” Bibeau said.

To read the original article and see related reporting, follow this link to the Post-Bulletin website.

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