Whether a federal or state judge should preside over the case of two Anishinaabe treaty rights activists charged with illegally setting a gill net in Gull Lake remains undecided.
The Minnesota Court of Appeals remanded the matter back to Crow Wing County District Court Tuesday, after ruling the court failed to "make factual findings and to address the submissions by the parties." The district court requested a review from the appeals court to determine courtroom jurisdiction of the netting case.
"Upon review of the exhibits and arguments of counsel, this court finds that the issues presented are questions that are important and doubtful and will have statewide impact," Judge Kristine R. DeMay of Crow Wing County wrote.
The case stems from an August 2015 protest action by James Warren Northrup, 48, and Todd Jeremy Thompson, 47, occurring in Hole-in-the-Day Bay on Gull Lake. The men deployed a gill net from a canoe while a crowd of people stood on shore. It is illegal under Minnesota law to fish with a net unless specifically authorized.
At the same time, two other activists harvested wild rice without permits across Highway 371 in Hole-in-the-Day Lake. Morningstar Jessica Shabaiash, 30, and Harvey Dale Goodsky Jr., 27, were charged with misdemeanors. Those charges were later dismissed.
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The issue under scrutiny is whether Northrup and Thompson retain off-reservation hunting, fishing and gathering rights-without permit requirements-as members of Anishinaabe tribes. These rights were at one time recognized in a treaty between tribes and the U.S. government.
Defense attorneys made a motion to dismiss the gross misdemeanor charge and three misdemeanor charges the men face, arguing a 1999 U.S. Supreme Court decision concerning Mille Lacs Lake supported their rights to net fish on Gull Lake. The defense team of Frank Bibeau and John Plumer presented 40 exhibits supporting their motion, including maps and the text of treaties.
In a January 2016 interview with the Brainerd Dispatch, Bibeau made clear the defense's intent was to move the issue to federal court.
"In the long run, it's about treaty rights, and that is only between the United States of America and the Chippewa," Bibeau said. "The state's not a party to the treaty, so doing things in state court isn't very useful for us, or productive."
The jurisdiction question, along with the question of whether there are existing treaties offering the defendants "protection from state infringement and regulation in the area at issue," were posed to the appeals court following the motion to dismiss.
In response, the appeals court asked whether the district court dispensed a ruling on those questions. A day later, the district court denied the motion to dismiss, but did not provide a supporting argument for the denial as an answer to the defense's motion.
In its order remanding the matter back to Crow Wing County, the appeals court argued its role was not to offer an advisory opinion, but rather to affirm or deny the district court's own findings of fact.
"The court of appeals has discretion to decline to answer a certified question and remand the case to the district court," the order stated. "The function of certification is 'not to present a hypothetical question or to secure an advisory opinion.' ... The role of the court of appeals is to correct errors and not to find facts."
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In accordance with the order, the Crow Wing County District Court is expected to commence with further proceedings in the case.
