United States Court of Appeals

For the Eighth Circuit

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No. 13-3800

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellant

v.

Michael D. Brown

lllllllllllllllllllll Defendant - Appellee

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No. 13-3801

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellant

v.

Jerry A. Reyes, also known as Otto Reyes

lllllllllllllllllllll Defendant - Appellee

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No. 13-3802

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United States of America

lllllllllllllllllllll Plaintiff - Appellant
v.

Marc L. Lyons

lllllllllllllllllllll Defendant - Appellee

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No. 13-3803

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellant

v.

Frederick W. Tibbetts, also known as Bud Tibbetts

lllllllllllllllllllll Defendant - Appellee

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Appeals from United States District Court 

for the District of Minnesota - St. Paul

____________

 Submitted: October 9, 2014

 Filed: February 10, 2015

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Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

____________

MURPHY, Circuit Judge.

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Appellees Michael Brown, Jerry Reyes, Marc Lyons, and Frederick Tibbetts

were indicted under the Lacey Act which makes it unlawful to "sell . . . any fish . . .

taken, possessed, transported, or sold in violation of . . . any Indian tribal law." 16

U.S.C. § 3372(a)(1). The indictments alleged that appellees had netted fish for

commercial purposes within the boundaries of the Leech Lake Reservation in

violation of the Leech Lake Conservation Code, then sold the fish. Appellees are

Chippewa Indians, and theymoved to dismiss the indictments on the ground that their

prosecution violatesfishing rights reserved under the 1837 Treaty between the United

States and the Chippewa. The district court granted the motions to dismiss. The 1

United States appeals, arguing that its application of the Lacey Act did not infringe

on appellees' fishing rights. We affirm.

I.

A.

During the early 1800s Chippewa Indians occupied much of present day

Minnesota and Wisconsin. Ronald N. Satz, Chippewa Treaty Rights: The Reserved

Rights of Wisconsin's Chippewa Indians in Historical Perspective 1 (Carl N.

Haywood, ed., 1996). At least three thousand Chippewa resided in seven village

centers at locations including Leech Lake. Id. In Minnesota they controlled the land

east of the Mississippi River and north of the Crow Wing River. William Watts

Folwell, A History of Minnesota 80-81, 88 (Solon J. Buck, ed., 1921).

Hunting, fishing, gathering, and trapping were essential to the survival and

ways of life of Indian tribes throughout North America. Cohen's Handbook of

Federal Indian Law § 18.01 at 1154 (Nell Jessup Newton ed., 2012). Such activities

The Honorable John R. Tunheim, United States DistrictJudge for the District 1

of Minnesota.

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"were not much less necessary to the existence of the Indians than the atmosphere

they breathed." United States v. Winans, 198 U.S. 371, 381 (1905). Throughout their

territory the Chippewa fished, hunted, trapped, gathered wild rice, and tapped maple

trees for sugar. Satz, Chippewa Treaty Rights at 1-2. Fishing and hunting were of

such importance that a boy's first success was publicly celebrated. Id. at 2. In

addition to fishing for subsistence purposes, Chippewa Indians sold their catch to

traders, from whom they also bought fishing nets. Id. at 29.

The United States made several treaties with Chippewa Indians during the

nineteenth century, including two relevant to this case. In July 1837, over one

thousand Chippewa Indians gathered at Fort Snelling while their chiefs negotiated

withWisconsin Territorial Governor HenryDodge who represented the United States. 

Documents Related to the Negotiation of the Treaty of July 29, 1837, reprinted in

Satz, Chippewa Treaty Rights 131-153, at 131 ("1837 Treaty Journal"). The United

States sought to purchase land east of the Mississippi River in present day central

Minnesota and Wisconsin because of its desirable pine timber. Id. at 131-32, 140. 

During these negotiations, the Chippewa chiefs emphasized the importance of

reserving their rights to fish, hunt, and gather on the land, also called usufructuary

rights. According to the treaty journal, Ma-ghe-ga-bo stated, "Of all the country that

we grant to you we wish to hold on to a tree where we get our living, & to reserve the

streams where we drink the watersthat give uslife." 1837 Treaty Journal at 142. The

secretary who recorded the proceedings noted that he transcribed the statement as

provided by the underqualified interpreters, but he "presume[d] it to mean that the

Indians wish to reserve the privilege of hunting & fishing on the lands and making

sugar from the Maple." Id. Flatmouth, chief of the Pillager band which resided at

Leech Lake, reiterated the importance of reserving usufructuary rights on the ceded

lands:

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My Father. Your children are willing to let you have their lands, but

they wish to reserve the privilege of making sugar from the trees, and

getting their living from the Lakes and Rivers, as they have done

heretofore, and of remaining in this Country. . . . You know we can not

live, deprived of our Lakes and Rivers; . . . we wish to remain upon

them, to get a living.

Id. at 145. 

Governor Dodge agreed to reserve these rights for the Chippewa Indians. 1837

Treaty Journal at 146. Article 5 of the 1837 treaty provides, "The privilege of

hunting, fishing, and gathering the wild rice, upon the lands, the rivers, and the lakes

included in the territory ceded, is guarantied to the Indians, during the pleasure of the

President of the United States." Treaty with the Chippewa, July 29, 1837, art. 5, 7

Stat. 536 ("1837 Treaty").

The area surrounding the Leech Lake Reservation was not part of the territory

ceded in 1837. See 1837 Treaty, art. 1. That reservation was established, and

additional territory in northern Minnesota was ceded, in an 1855 treaty. Treaty with

the Chippewa, February 22, 1855, art. 1-2, 10 Stat. 1165 ("1855 Treaty"). Several

Chippewa chiefs again gathered at Fort Snelling for the negotiations. Documents

Related to the Negotiation of the Treaty of February 22, 1855 at 1 ("1855 Treaty

Journal), available at http://digital.library.wisc.edu/1711.dl/History.IT1855no287

(last visited Jan. 27, 2015). Colonel George Manypenny, Commissioner of Indian

Affairs, represented the United States. Id. According to the treaty journal, the

Chippewa chiefs understood the United States to have a straightforward goal. In the

words of Flatmouth, chief of the Pillager band residing near Leech Lake, "It appears

to me that I understand what you want, and know your views from the few words I

have heard you speak. You want land." Id. at 18. 

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In contrast to the 1837 negotiations, there is no record of a discussion of

usufructuary rights, and the treaty is silent on that subject. See 1855 Treaty Journal;

1855 Treaty. Reservations within the ceded territory were negotiated. Flatmouth

requested a reservation "at Lake Winn[ibigoshish], Cass Lake, and Leech Lake" and

the treaty thus established the Leech Lake Reservation. 1855 Treaty Journal at 29;

1855 Treaty, art. 2.

B.

In more recent years, courts have determined that treaty reservations of

usufructuary rights to the Chippewa Indians remain in effect. In Leech Lake Band

of Chippewa Indians v. Herbst, 334 F. Supp. 1001 (D. Minn. 1971), the Leech Lake

Band sought a declaratory judgment that the state of Minnesota could not regulate

fishing, hunting, and gathering wild rice within its reservation. The United States,

also a plaintiff, contended "that the treaty protected rights to hunt, fish, trap and

gather wild rice are property rights to be used in whatever fashion the Indians, as

owners, desire, whether to eat, clothe, or sell." The district court determined that the

Chippewa Indians' usufructuary rights had not been terminated by the 1889 Nelson

Act, and it enjoined enforcement of state fish and game laws against Indians on the

reservation. Herbst, 334 F. Supp. at 1006. The case ended in a settlement in which

the Leech Lake Band created its own conservation code and agreed to enforce the

code in tribal courts.

A subsequent case involving another band of Minnesota Chippewa Indians

made its way to the Supreme Court. Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999). The state of Minnesota argued that the Mille Lacs

Band had lost the hunting, fishing, and gathering rights guaranteed by the 1837 treaty

through an executive order in 1850, the 1855 treaty, and Minnesota's admission into

the Union in 1858. Id. at 175-76. Analyzing the historical context of the 1855 treaty,

the Court concluded that the lack of discussion of usufructuary rights in the

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negotiations "suggest[ed] that the Chippewa did not understand the proposed Treaty

to abrogate their usufructuary rights as guaranteed by other treaties." Id. at 198. The

Court determined that the rights reserved under the 1837 treaty had not been

extinguished by the subsequent executive order, 1855 treaty, or admission of

Minnesota into the Union. Id. at 195, 202, 208.

C.

In 2010, the Minnesota Department of Natural Resources began "Operation

Squarehook," an investigation into illegal sales of game fish, mostly walleye, in

northern Minnesota. Minn. Dept. of Natural Res., "Operation Squarehook:

Frequently Asked Questions," available at http://www.dnr.state.mn.us/enforcement/

op_squarehook_faq.html (last visited January 27, 2015). State law enforcement

worked with the U.S. Fish and Wildlife Service and authorities from the Red Lake

and Leech Lake Indian Reservations. Id. The investigation focused on allegations

that tribal members caught walleye on lakes within the reservations and illegally sold

the fish to non Indians at below market rates. Id. Defendants were among over thirty

people charged with criminal offenses as a result of the investigation, ten of whom

were named in federal court indictments. Id.

The factual allegations against defendants relate to fishing within the Leech

Lake Reservation. This reservation includes a number of lakes, such as Leech Lake,

Cass Lake, Lake Winnibigoshish, and Six Mile Lake. Brown, Reyes, and Lyons are

enrolled members of the Leech Lake Band, and Tibbetts is an enrolled member of the

White Earth Band. Both bands are part of the Minnesota Chippewa Tribe, a

2

federally recognized Indian tribe. Indian Entities Recognized and Eligible To

The government has not suggested that Tibbetts's membership in the White 2

Earth Band provides him different fishing rights from those of the other defendants.

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Receive Services From the United States Bureau of Indian Affairs, 79 Fed. Reg.

4748-52 (January 29, 2014).

The indictments allege that defendants have taken fish by gill net for

commercial purposes within the Leech Lake Reservation, violating the band's

conservation code. Defendants had then sold the fish to non Indians, some of whom

were also indicted. Section 22.01(2) of the conservation code prohibits taking game

fish by gill net other than for personal use, and § 23.01 prohibits taking fish for

commercial purposes within the reservation, except for non game fish when

authorized by a permit from the band's conservation committee. Conservation Code

of the Leech Lake Band of Chippewa Indians, §§ 22.01(2), 23.01. Walleye are

included in the definition of "game fish." Id. § 11.01(10). Violations of sections

22.01 and 23.01 are punishable in tribal court by a fine of up to five hundred dollars,

imprisonment for up to 180 days, both, "or any other penalty as deemed appropriate

by the Judge." Id. at § 51.03(1). 

Defendants were indicted in the District of Minnesota for violations of the

federal Lacey Act, which makes it unlawful to sell fish taken "in violation of any

Indian tribal law." 16 U.S.C. § 3372(a)(1). The indictments alleged that defendants

had sold fish worth more than $350 knowing the fish were taken in violation of the

Leech Lake conservation code. Such a violation is punishable by a fine of up to

$20,000, imprisonment for up to five years, or both. 16 U.S.C. § 3373(d)(1). 

Defendants moved to dismiss the indictments, arguing that the government

could not prosecute them for exercising their right to fish on tribal waters. They

claimed that the 1837 treaty reserved this right and that because Congress had not

abrogated their treaty right, the indictment must be dismissed. At a hearing on

defendants' motions, the United States "agree[d] that there's no issue asto whether the

1837 Chippewa Treaty applies in the Leech Lake region." The government argued

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however that the prosecution did not implicate the defendants' treaty rights because

the Lacey Act was a law of general applicability. 

While considering these arguments, the district court examined the 1837 treaty

and its historical context,including the negotiations between the Chippewa chiefs and

Governor Dodge. The court concluded that the statements made in those negotiations

demonstrated that all parties understood the 1837 treaty to reserve "a broad right to

fish asthey had been accustomed — without restriction." This right included selling

the fish to make a living and did not limit the method used for catching them. The

defendants' alleged actions therefore fell within the protections of the treaty. The

district court concluded that the Lacey Act did not abrogate the usufructuary rights

reserved under the 1837 treaty. The indictments were dismissed, and the United

States appeals.

II.

A.

The United States argues that prosecuting defendants under the Lacey Act does

not implicate usufructuary rights. In considering that argument we must examine the

scope of the rights protected by the 1837 treaty, a treaty the United States admits is

applicable. When seeking to determine the meaning of Indian treaties, "we look

beyond the written words to the larger context that frames the Treaty, including the

history of the treaty, the negotiations, and the practical construction adopted by the

parties." Mille Lacs Band, 526 U.S. at 196 (quotation omitted). We interpret such

treaties liberally, resolving uncertainties in favor of the Indians, and we "give effect

to the terms asthe Indians themselves would have understood them." Id. at 196, 200.

The wording of the 1837 treaty is broad, guaranteeing a "privilege of hunting,

fishing, and gathering the wild rice, upon the lands, the rivers, and the lakes included

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in the territory ceded." 1837 Treaty, art. 5. The historical importance of these

activities in Chippewa life and the emphasis of the Chippewa chiefs on usufructuary

rights during their negotiations with the United States indicate that the Indians

believed they were reserving unrestricted rights to hunt, fish, and gather throughout

a large territory. This case presents no issue of whether the treaty protection includes

the use of new technologiessince the Chippewa used netsto catch fish at the time the

treaty was made. 

The history suggests that the Chippewa Indians' exercise of their usufructuary

rights included selling what they hunted, fished, or gathered in order to make a

modest living. Other cases considering the 1837 treaty have reached the same

conclusion. Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784,

838 (D. Minn. 1994); Lac Courte Oreilles Band of Lake Superior Chippewa Indians

v. Wisconsin, 653 F. Supp. 1420, 1435 (W.D. Wis. 1987). Where "Indians engaged

in commercial fishing prior to and at the time of their treaties, as was the case in . . .

the Great Lakes area, the treaties will be read to entitle them to fish commercially

today." United States v. Dion, 752 F.2d 1261, 1265 n.11 (8th Cir. 1985) (en banc)

(quotation omitted), rev'd in part on other grounds, 476 U.S. 734 (1986). Moreover,

as recently as the 1970s the United States argued in the Herbst case that usufructuary

rights on the Leech Lake Reservation included the right to sell fish. This history, the

text of the 1837 treaty, and evidence of the parties' understanding of it show that the

treaty guaranteed a broad right to fish that includes right to sell them. 

On appeal, the United States attempts to retreat from its earlier admission that

the rights reserved under the 1837 treaty apply on the Leech Lake Reservation. It

acknowledges that the the Chippewa Indians have on reservation rights "inherent in

[the band's] sovereignty" and cites Cohen's Handbook of Federal Indian Law §

18.03[1] at 1158-59. As this treatise notes, "[e]xclusive on-reservation hunting,

fishing, and gathering rights are implied from the establishment of a reservation for

the exclusive use of a tribe." Id. The Supreme Court has explained that "[a]s a

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general rule, Indians enjoy exclusive treaty rights to hunt and fish on lands reserved

to them . . . [and] [t]hese rights need not be expressly mentioned in the treaty." 

United States v. Dion, 476 U.S. 734, 738 (1986). Individuals may assert these rights

"unless [they] were clearly relinquished by treaty or have been modified by

Congress." Id.

The United States suggests no reason why the right to net and sell fish would

not be part of the usufructuary rights reserved by the establishment of the Leech Lake

Reservation in the 1855 treaty. The context of the 1855 treaty establishing the Leech

Lake Reservation indicates that this "general rule" applies. As the Supreme Court

noted in Minnesota v. Mille Lacs Band, the silence regarding usufructuary rights in

the 1855 treaty and the negotiations leading up to it suggest that the Chippewa

Indians did not believe they were relinquishing such rights. 526 U.S. at 198. 

Historicalsourcesindicate that the Chippewa practiced such activities during the time

period when the reservation was established. Even if the 1837 treaty does not apply,

the rights it protects are relevant because in this particular case the Chippewa would

have understood similar broad rights to apply on the Leech Lake Reservation. We

therefore conclude that the exclusive on reservation fishing rights of the Chippewa

Indians protect the rights to fish and to sell fish.

B.

The United States raises several arguments why the prosecution does not

conflict with Chippewa fishing rights reserved under the 1837 treaty or implied by

the establishment of the Leech Lake Reservation in the 1855 treaty. First, the

government contends that such right is one that may be asserted by a band or tribe,

but not by an individual. In support of this argument, the government cites a Tenth

Circuit case for the proposition that the right asserted in court proceedings is "the

right of an individual of the community," part of the "tribal right to hunt or fish."

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United States v. Fox, 573 F.3d 1050, 1053-54 (10th Cir. 2009).

It is well settled, however, that an individual Indian may assert usufructuary

rights in a criminal prosecution. For example, the Supreme Court stated in United

States v. Dion that hunting and fishing "treaty rights can be asserted by Dion as an

individual member of the Tribe." 476 U.S. at 738 n.4. Evaluating usufructuary rights

in United States v. Winans, the Court explained that while "the negotiations were

with the tribe," treaties "reserved rights, however, to every individual Indian, as

though named therein." 198 U.S. at 381.

Fox does not help the government's argument in this case. The defendant in

Fox, a Navajo Indian and a convicted felon, was prosecuted under 18 U.S.C. § 922(g)

for possessing a shotgun and rifle on the Navajo Reservation, even though he claimed

to possess the guns solely for hunting. 573 F.3d at 1051. Although the Tenth Circuit

was "skeptical of the [government's] position that hunting rights guaranteed by treaty

only benefit the tribe collectively, as opposed to its individual members," id. at 1053,

it decided that Fox was ineligible to assert a treaty hunting right because the treaty

provided that Navajo Indians who commit crimes may be "tried [by the United States]

and punished according to its laws." Id. at 1054-55. Part of Fox's punishment was

the loss of the privilege to possess firearms. Id. The present case is easily

distinguishable, for defendants here are not subject to any prior federal criminal

punishment prohibiting the use of gill nets for commercial fishing.

The United States also argues that this Lacey Act prosecution supports rather

than underminestribal sovereignty because it is predicated on a violation ofthe Leech

Lake Band's conservation code. Since defendants allegedly fished in ways prohibited

by the band, usufructuary rights do not protect them, the government contends. The

government does not, and cannot, cite any authority for the proposition that the Leech

Lake Band'sfishing regulations have altered the scope of rights protected in the 1837

treaty or by the establishment of the reservation in the 1855 treaty. Whether or not

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a Lacey Act prosecution in this case could promote tribal sovereignty, a tribe does not

abrogate its own rights by electing to regulate those rights. Tribal fishing laws

enforceable in tribal court do not change the scope of treaty protections which tribal

members may assert as a defense to prosecution by the United States.

Finally, the United States also relies on a Ninth Circuit case holding that

Indians could be prosecuted for taking fish within Indian Country in violation of

tribal regulations. United States v. Sohappy, 770 F.2d 816 (9th Cir. 1985). The

Ninth Circuit described the "crucial issue" there as "whether the treaties reserved to

the tribes exclusive jurisdiction over enforcement of tribal fishing law against

Indians." Id. at 818 (emphasis in original). The court decided that a treaty which

reserved the "right to take fish at all 'usual and accustomed places' was not exclusive

but was to be shared 'in common with citizens of the Territory.'" Id. at 819. There

was no language in the treaty "purporting to exempt Indians from the laws of general

applicability throughout the United States." Id. at 820 (quotation omitted). In such

circumstances, the Ninth Circuit concluded, concurrent federal jurisdiction over

fishing did not violate treaty rights. Id. at 819-20.

An affirmance of the district court in this case does not conflict with Sohappy

because that case evaluated rights under a particular treaty with materially different

language and parties. The Supreme Court has instructed courtsto analyze the history,

purpose, and negotiations of the treaty at issue in a particular case. See Mille Lacs

Band, 526 U.S. at 202. The Ninth Circuit determined in Sohappy that a right to take

fish "in common with citizens of the Territory" was not an exclusive right. 770 F.2d

at 819. In contrast, the 1837 treaty applicable here reserves broad usufructuary rights

with no such limiting language, and the on reservation rights implied in the 1855

treaty are exclusive. These are critical differences which distinguish the case before

our court.

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The United States nonetheless urges that its Lacey Act prosecutions are valid

because the treaty does not "exempt Indians from the laws of general applicability

throughout the United States." Sohappy, 770 F.2d at 820. Because the activity for

which defendants were prosecuted (selling fish they caught on the Leech Lake

Reservation) falls within the scope of the Chippewa Indians' exclusive usufructuary

rights, we need not now consider whether the 1837 treaty exempted the Chippewa

from other laws of general applicability. This conclusion is consistent with our

decision in United States v. White, 508 F.2d 453 (8th Cir. 1974). 

In White, we affirmed the dismissal of an indictment against a member of the

Red Lake Band for violating the Eagle Protection Act, 16 U.S.C. § 668(a), by

shooting at a bald eagle on the reservation. Id. at 454. We stated there that "areas

traditionally left to tribal self-government, those most often the subject of treaties,

have enjoyed an exception from the general rule that congressional enactments, in

terms applying to all persons, includes Indians and their property interests." Id. at

455. After determining that the Red Lake Band had reserved hunting rights, the court

continued, "To affect those rights, then, by 16 U.S.C. § 668, it was incumbent upon

Congress to expressly abrogate or modify the spirit of the relationship between the

United States and Red Lake Chippewa Indians on their native reservation." Id. at

457-58. As Congress had not so acted, the court concluded, the district court had

properly dismissed the indictment. Id. at 458-59. 

Other treaty rights decisions show that White furnishes the correct analysis for

the issues presented here. In United States v. Dion which was decided after Sohappy,

the Supreme Court also employed an abrogation analysis when determining whether

treaty rights precluded prosecution of a Yankton Sioux Indian under the Eagle

Protection Act. 476 U.S. at 737-39. Later in United States v. Gotchnik, we again

evaluated the scope of treaty protections and whether Congress abrogated those

protections when determining that treaty fishing rights did not preclude federal

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prosecution for using motor vehiclesin the BoundaryWatersCanoe Area Wilderness. 

222 F.3d 506, 508-11 (8th Cir. 2000).

The United States points out that two of our cases have cited Sohappy. United

States v. Stone, 112 F.3d 971, 973-74 (8th Cir. 1997); United States v. Big Eagle, 881

F.2d 539, 540 n.1 (8th Cir. 1989). In neither of these cases is it clear that the Indian

defendants were prosecuted for actionsthatfell within their treaty hunting and fishing

rights. Stone was charged with violating the Airborne Hunting Act within Indian

country by using a plane to drive a moose toward hunters on the ground. Stone, 112

F.3d at 972. The hunters were not prosecuted. See id. Big Eagle was charged with

taking fish on the reservation of a tribe to which he did not belong in violation of that

tribe's rules. Big Eagle, 881 F.2d at 539-40. Neither decision considered the history,

purpose, and negotiations of a treaty claimed to protect the defendant's actions. See

Stone, 112 F.3d at 973-74; Big Eagle, 881 F.2d at 540. Moreover, even if these cases

were to conflict with White, we would be obligated to follow White as the earliest

case on point. Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc).

After giving full consideration to the arguments by the United States, we

conclude that appellees are entitled to assert the Chippewa Indians' fishing rights and

that this prosecution under the Lacey Act conflicts with those rights.

III.

Although Congress may abrogate Indian treatyrights, it must make its intention

to do so "clear and plain." Dion, 476 U.S. at 738. There must be "clear evidence that

Congress actually considered a conflict between its intended action on the one hand

and Indian treaty rights on the other, and chose to resolve that conflict by abrogating

the treaty." Id. at 740. The United States does not argue that Congress abrogated

Chippewa fishing rights through the Lacey Act. That Act itself makes clear that

Congress did not intend to abrogate Indian rights: it provides that 

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[n]othing in this chapter shall be construed as . . . repealing,

superseding, or modifying any right, privilege, or immunity granted,

reserved, or established pursuant to treaty, statute, or executive order

pertaining to any Indian tribe, band, or community. 

16 U.S.C. § 3378(c)(2). Congress has thus not abrogated the rights asserted by

defendants.

IV.

We conclude that the historic fishing rights of the Chippewa Indians bar this

prosecution of defendants for taking fish within the Leech Lake Reservation and

selling them. The judgment of the district court is affirmed.

______________________________

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