State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-0130

State of Minnesota,
Respondent,

vs.

James Warren Northrup,
Appellant.

Filed December 16, 2019
Affirmed; motion granted in part and denied in part
Worke, Judge
Dissenting, Klaphake, Judge*

Crow Wing County District Court
File No. 18-CR-16-19

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Donald F. Ryan, Crow Wing County Attorney, Brainerd, Minnesota (for respondent)

Joseph Plumer, Bemidji, Minnesota; and

Frank Bibeau, Deer River, Minnesota (for appellant)

Considered and decided by Hooten, Presiding Judge; Worke, Judge; and Klaphake,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

2
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant was found guilty of three conservation offenses relating to setting a gill
net on Gull Lake. Appellant, a member of the Fond du Lac Band of the Minnesota
Chippewa Tribe, challenges the district court’s order denying his motion to dismiss the
charges against him because the court was without subject-matter jurisdiction and because
his actions were immune from prosecution due to treaty -guaranteed usufructuary rights.
We affirm.
FACTS
On August 28, 2015, Minnesota Conservation Officers observed appellant James
Warren Northrup and another man in a canoe on Gull Lake. After placing a gill net into
the lake, the men paddled back to shore and disembarked from the canoe. The officers
removed the gill net from the lake and discovered that it lacked identification and licensing
information. The canoe similarly lacked registration information and was not equipped
with personal flotation devices. The officers then spoke with the men, who admitted that
they set the gill net and did not have a permit or license to net fish, but asserted that they
had federal treaty rights to fish on Gull Lake. Respondent State of Minnesota charged
Northrup with one count of illegal means of taking fish, one count of netting fish without
a license, one count of operating a watercraft without registration, and one count of using
a watercraft without personal flotation or lifesaving devices.
Northrup, who is an enrolled member of the Fond du Lac Band of the Minnesota
Chippewa Tribe, filed a motion in district court to dismiss the charges against him for lack
3
of subject-matter jurisdiction, arguing that he has unabrogated usufructuary rights1 to fish
on Gull Lake. In support of this motion, Northrup provided the district court with 40
exhibits, including numerous treaties, maps, findings, and opinions of the Indian Claims
Commission, annual reports of the Commissioner of Indian Affairs, and an affidavit from
an expert witness. On November 8, 2017, the district court denied Northrup’s motion to
dismiss.
The district court determined that the conduct in question occurred on Gull Lake,
which was previously part of the Gull Lake Reservation established in an 1855 Treaty and
later ceded to the United States in an 1864 Treaty. The district court noted that the
uncontradicted expert testimony was that the United States did not comply with the terms
of the 1864 Treaty, and therefore the Chippewa of the Mississippi, Leech Lake, and Lake
Winnibigoshish bands retained usufructuary rights on the ceded land. The district court
concluded that because Northrup is a member of the Fond du Lac Band of the Lake
Superior Chippewa, he is not a member of a band that was a signatory to the relevant
treaties and so he did not have usufructuary rights to fish on Gull Lake.
Northrup agreed to a court trial based on stipulated evidence pursuant to Minn. R.
Crim. P. 26.01, subd. 3. The district court found Northrup guilty of all charges and
sentenced him to one year in jail, stayed the sentence for two years, and placed him on
unsupervised probation. This appeal follows.

1 “Usufructuary rights” include the right to “live off the land” or to make a “modest living
by hunting and gathering from the resources of the land.” United States v. Gotchnik, 222
F. 3d 506, 508 n.3 (8th Cir. 2000).
4
D E C I S I O N
On appeal, Northup argues that the district court erred by denying his motion to
dismiss the charges against him because (1) the state lacked subject-matter jurisdiction
pursuant to federal law because he is “Indian” and his actions occurred within “ Indian
country”; and (2) he has individual usufructuary rights to fish on Gull Lake that operate as
an affirmative defense to the enforcement of the criminal charges. After briefing was
complete, the state moved to strike arguments in Northrup’s reply brief that were not raised
in his principal brief, and to strike references and arguments in both briefs to materials not
part of the record on appeal.
I. Motion to strike.
In its motion to strike, the state argues that Northrup raises for the first time in his
reply brief the issues of res judicata, collateral estoppel, and stare decisis. This court
generally does not consider issues raised for the first tim e in a reply brief, and such issues
may be deemed waived and stricken from a party’s pleadings. See State v. Yang, 774
N.W.2d 539, 558 (Minn. 2009). Upon review of the parties’ briefs, we conclude that
Northrup addresses the issues of res judicata, collateral estoppel, and stare decisis solely in
response to the state’s arguments in defense of the judgment, and not as additional
substantive bases for relief. Accordingly, we deny the state’s motion to strike in this regard.
The state also argues that Northrup’s principal brief and reply brief “attempt to
expand the record for this appeal.” The appellate record is limited to “documents filed in
the trial court, the exhibits, and the transcript of the proceedings, if any.” Minn. R. Civ.
App. P. 110.0 1. This court may not base its decision on matters outside the record on
5
appeal. State v. Dalbec, 594 N.W.2d 530, 533 (Minn. App. 1999). To the extent that
Northrup’s briefs presented and relied on materials not made part of the record on appeal,
the state’s motion is granted, and this court disregarded such materials in the disposition of
this appeal.
II. The State of Minnesota has subject-matter jurisdiction over the prosecution of
Northrup because his acts did not occur in “Indian country.”

Public Law 280, codified at 18 U.S.C. § 1162(a) (2010), grants Minnesota
jurisdiction over criminal offenses “committed by or against Indians” in “[a]ll Indian
country within the state, except the Red Lake Reservation.” 2 This statute also provides,
however, that this grant of jurisdiction does not authorize the state to “deprive any Indian
or any Indian tribe, band, or community of any right, privilege, or immunity afforded under
Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the
control, licensing, or regulation thereof.” 18 U.S.C. § 1162(b). In State v. Clark, 282
N.W.2d 902, 908-09 (Minn. 1979), the Minnesota Supreme Court construed Public Law
280 as depriving the state of jurisdiction to prosecute offenses that would constitute a
regulation of treaty-guaranteed hunting and fishing rights.
Here, Northrup argues that —pursuant to Public Law 280—the state is without
subject-matter jurisdiction to prosecute him for the charged offenses because he is an

2 Although Red Lake is the only reservation specifically exempted from Public Law 280,
the Minnesota Legislature in 1973 retroceded criminal jurisdiction over the Bois Forte
Reservation—located in St. Louis and Koochiching Counties— back to the United States,
thus exempting it from such state jurisdiction as well. 1973 Minn. Laws ch. 625, § 3, at
1501. Although not relevant to the analysis in this opinion, we note it here for the sake of
completeness.
6
Indian, his conduct occurred in “Indian country,” and criminalization of his conduct
constitutes a deprivation of f ederally-guaranteed treaty rights. Northrup’s claim involves
a question of statutory interpretation, which we review de novo. State v. Defatte, 928
N.W.2d 338, 340 (Minn. 2019).
“Indian country” is defined, in relevant part, as “all land within the limits of any
Indian reservation under the jurisdiction of the United States Government.” 18 U.S.C.
§ 1151 (2010). Northrup argues that Gull Lake “is physically located within the original
Gull Lake Reservation, which was originally reserved in the 1855 Treaty with the
Chippewa.” Northrup is correct that the 1855 Treaty established a reservation that
encompassed Gull Lake, where he was cited for the offenses at issue in this case. 1855
Treaty with the Chippewa, art. 2, Feb. 22, 1855, 10 Stat. 1165 (1855 Treaty).
In exchange for the establishment of a reservation at Leech Lake, t he Chippewa,
however, later ceded the Gull Lake Reservation land to the United States in unequivocal
language in an 1864 treaty. 1864 Treaty with the Chippewa, Etc., arts. 1, 2, May 7, 1864,
13 Stat. 693 (1864 Treaty). In so doing, the Gull Lake reservation ceased to exist and the
land within its boundaries thus ceased to constitute “Indian country.” See, e.g., DeCoteau
v. Dist. Cty. Court, 420 U.S. 425, 427 -28, 95 S. Ct. 1082, 1084- 85 (1975) (holding that
termination of a reservation by the federal government confers jurisdiction to the state over
non-Indian lands within the original reservation boundaries); DeMarrias v. South Dakota,
319 F.2d 845, 846-47 (8th Cir. 1963) (affirming that reservation land later ceded to the
United States ceases to constitute “Indian country”).
7
Accordingly, although there is no dispute that Northrup is Indian, his fishing
activities on Gull Lake did not occur in “Indian country” and so the jurisdictional
limitations of Public Law 280 are inapplicable here. The district court did not therefore err
by denying Northrup’s motion to dismiss the charges against him for lack of subject-matter
jurisdiction.
III. The district court did not err by concluding that Northrup did not possess
usufructuary rights on Gull Lake.

Although the state has subject- matter jurisdiction over this prosecution, Northrup
correctly asserts that his individual treaty rights to hunt, fish, and gather may be asserted
as an affirmative defense against charges for conduct that would otherwise be unlawful.
See, e.g., United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d
1288, 1291 (7th Cir. 1974) (noting that it is “well settled” that statutes of general
applicability are enforceable against Indians “unless there exists some treaty right which
exempts the Indian from the operation of the particular statutes in question”).
In its order denying Northrup’s motion to dismiss the charges against him, the
district court concluded that he did not have usufructuary rights to Gull Lake because the
Fond Du Lac Band of Chippewa was not a party to the treaties of 1855 or 1864, the latter
of which expressly provided for the retention of such rights by the signatory bands. On
appeal, Northrup does not dispute this conclusion but argues instead that his usufructuary
rights to Gull Lake were established by the earlier treaties of 1795, 1825, and 1826.
Specifically, he argues that these treaties elevated the aboriginal hunting, fishing, and
gathering rights to the status of treaty -guaranteed usufructuary rights, which are not
8
extinguished upon the cession of mere land title, and which require clear abrogation before
they may be deemed forfeited. Accordingly, although Gull Lake and the land surrounding
it were ceded to the United S tates in the treaties of 1855 and 1864, Northrup asserts that
neither these treaties, nor any prior or since, have operated to abrogate the land-use rights
previously reserved and held in common by all Minnesota Chippewa, and so his fishing
activities are exempted from criminal prosecution.
The interpretation of treaties presents questions of law that are reviewed de novo.
Richard v. United States, 677 F.3d 1141, 1144-45 (Fed. Cir. 2012). In interpreting treaties
between Indian tribes and the Unites States, courts are instructed to look beyond the text
itself and to consider the context provided by “the history of the treaty, the negotiations,
and the practical construction adopted by the parties.” Minnesota v. Mille Lacs Band of
Chippewa Indians, 526 U.S. 172, 196, 119 S. Ct. 1187, 1200 (1999). Although the district
court did not address whether the treaties relied upon by Northrup guaranteed usufructuary
rights to the Chippewa, we choose to address this claim on appeal because the Minnesota
Supreme Court has previously determined as a matter of law that they did not. State v.
Keezer, 292 N.W.2d 714, 717 (Minn. 1980). Because this court is bound to follow supreme
court precedent, State v. Curtis, 921 N.W.2d 342, 346 (Minn. 2018), we conclude that the
district court did not err when it denied Northrup’s motion to dismiss the charges against
him.
The 1795 Treaty of Greenville was a peace treaty between the United States and a
number of Indian tribes. It established a boundary between the land claimed by the United
States in the Northwest Territory and lands claimed by the Indians —lands which include
9
Gull Lake, as well as most of modern-day Minnesota. 1795 Treaty with the Wyandot, Etc.,
Aug. 3, 1795, 7 Stat. 49 (1795 Treaty). Article 5 of this treaty reads , in relevant part, as
follows:
The Indian tribes who have a right to those lands, are quietly
to enjoy them, hunting, planting, and dwelling thereon so long
as they please, without any molestation from the United States;
but when those tribes, or any of them, shall be disposed to sell
their lands, or any part of them, they are to be sold only to the
United States; and until such sale, the United States will protect
all the said Indian tribes in the quiet enjoyment of their lands
against all citizens of the United States, and against all other
white persons who intrude upon the same.

Id. at art. 5. This language, Northrup argues, constituted an affirmative guarantee of the
several tribes’ continuing usufructuary rights to the land.
In Keezer, however, the supreme court rejected this identical argument. Similar to
Northrup’s claim here, the defendants in Keezer asserted “that Article V raised the status
of hunting rights as mere incidents of the rights of occupancy to the status of a separate
treaty right of hunting held in common with all tribes in a vast Northwest Territory
Reservation.” 292 N.W.2d at 717. The supreme court disagreed, holding that the Treaty
of Greenville did not cede land to the United States and so its interpretation is not governed
by the canon of construction that any rights not expressly granted by the Indians are
reserved to them. Id. The court held, rather, that this treaty merely recognized Indian title
and right of occupancy to the land, and “described, rather than altered, the basic nature of
those rights.” Id. at 717, 719.
The 1825 Treaty of Prairie du Chien was, similarly, a peace treaty among several
tribes including the Chippewa of Minnesota. 1825 Treaty with the Sioux, Etc., Aug. 19,
10
1825, 7 Stat. 272 (1825 Treaty). Among the provisions of this treaty was the establishment
of a boundary line passing roughly northwest to southeast across the middle of present-day
Minnesota, which divided the territory between the Chippewa to the north and the Dakota
to the south. Id. at art. 5. This treaty provided that:
It is understood by all the tribes, parties hereto, that no tribe
shall hunt within the acknowledged limits of any other without
their assent, but it being the sole object of this arrangement to
perpetuate a peace among them, and amicable relations being
now restored, the Chiefs of all the tribes have expressed a
determination, cheerfully to allow a reciprocal right of hunting
on the lands of one another, permission being first asked and
obtained, as before provided for.

Id. at art. 13. Northrup asserts that this language operated as an official recognition by the
United States of the right to the taking of wild game by the Chippewa of northern
Minnesota, further reinforcing that such rights were specifically reserved by treaty . But
the Keezer court rejected this same argument as well, stating that the quoted langue “does
not memorialize a continuing reciprocal hunting right but only indicates that permission,
being first asked, will be freely given in order to perpetuate the peace established in the
treaty.” 292 N.W.2d at 719.
The 1825 Treaty also provided that a second treaty assembly would be held the
following year on Lake Superior to explain the 1825 Treaty to those bands unable to attend
the initial counsel, and to obtain their assent to its terms. 1825 Treaty at art. 12. In addition
to doing so, however, this treaty also included language, which Northrup notes “describes,
almost painfully, the diminished condition and bleak agricultural prospects observed by
the treaty negotiators[,]” and so provided for an additional annuity of $2,000 to be paid to
11
the tribe. 1826 Treaty with the Chippewa, arts. 5, 7, Aug. 5, 1826, 7 Stat. 290 (1826
Treaty). This, Northrup argues, constituted the government’s recognition that the hunting,
fishing, and gathering rights of the Chippewa on the entirety of the 1825 Treaty territory
was a matter of survival, and so reinforces his claim that such rights should be recognized
as having been guaranteed by treaty.
Northrup does not assert, however, that the 1826 Treaty operated to independently
guarantee hunting and fishing rights. He instead offers its terms solely as evidence of the
government’s understanding as to the indispensability of these rights and as support for
recognizing them as guaranteed by the previous treaties of 1795 and 1825. But considering
that the Keezer court interpreted these earlier treaties as only recognizing the preexisting
rights of occupancy and Indian title, we find nothing in the terms of the 1826 Treaty
sufficient to allow us to reach a different conclusion in these regards.
Collectively, therefore, the treaties Northrup relies upon did not provide for any
express reservation of usufructuary rights to Gull Lake, and instead only recognized the
Chippewa Tribe’s aboriginal right to occupancy of the land, to which the right to hunt, fish,
and gather is incidental. This distinction is crucial because the court in Keezer also
recognized that when hunting, fishing, and gathering rights exist only by virtue of the right
of occupancy rather than by express reservation in a treaty, the extinguishment of Indian
title to the land has the effect of abrogating these use rights as well. 292 N.W.2d at 721
(quoting United States v. Minnesota, 466 F. Supp. 1382, 1385 (D. Minn. 1979), aff’d sub
nom. Red Lake Band of Chippewa Indians v. Minnesota, 614 F.2d 1161 (8th Cir. 1980)).
And it noted as well that the United States Supreme Court has held that language ceding
12
“all right, title, and interest” to land is “precisely suited” for the extinguishment of Indian
title. Id. at 721.
The 1855 Treaty expressly provided for the conveyance to the United States of all
“right, title, and interest in, and to,” the land ceded under its terms, land which includes
Gull Lake. 1855 Treaty, art. 1, 10 Stat. 1166. In light of Keezer, the use of this particular
language in the treaty was sufficient to extinguish all Indian title to the land, and with it all
the incident rights of hunting, fishing, and gathering. 292 N.W.2d at 720-721.
Consequently, because the 1795, 1825, and 1826 treaties Northrup cites as authority did no
more than recognize the Minnesota Chippewa’s aboriginal rights of occupancy to the land,
and because Northrup does not argue that the Fond du Lac Band retained any such rights
to the land ceded by the 1855 Treaty, Northrup has failed to demonstrate that he possessed
any usufructuary rights to Gull Lake by virtue of these earlier treaties.
In his brief, Northrup argues that a different conclusion is compelled by the United
States Supreme Court’s opinion in Mille Lacs. At issue in Mille Lacs was an 1837 treaty
in which several bands of Chippewa—including the Mille Lacs Band—agreed to sell land
east of the Mississippi river in central Minnesota and Wisconsin. 526 U.S. at 175-176, 119
S. Ct. at 1191 (1837 Treaty). 3 Included in the terms of this treaty was the express
reservation to the signatory bands of “[t]he privilege of hunting, fishing, and gathering the
wild rice, upon the lands, the rivers and the lakes included in the territory ceded.” Id. at
177, 119 S. Ct. at 1191. In 1990, the Mille Lacs Band of Chippewa filed suit in federal

3 The land ceded by the 1837 Treaty did not include Gull Lake or the land immediately
surrounding it.
13
court seeking a declaratory judgment that the Band retained the rights reserved by the 1837
Treaty. Id. at 185, 119 S. Ct. at 1195. Among the arguments raised by the state that the
usufructuary rights had been extinguished was language included in the 1855 Treaty that
provided for the relinquishment of “any and all other right, title, and interest . . . which they
may now have in, and to any other lands in the Territory of Minnesota or elsewhere.” 1855
Treaty, art. 1, 10 Stat. 1166. This clause, the state asserted, was sufficient to abrogate the
rights that had been expressly reserved in the 1837 Treaty. Mille Lacs, 526 U.S. at 195 ,
119 S. Ct. at 1200.
The Court, in applying the aforementioned canons of construction applicable to
Indian treaties, concluded that “the historical record provides no support for the theory that
the second sentence of Article 1 was designed to abrogate the usufructuary privileges
guaranteed under the 1837 Treaty.” Id. at 200, 119 S. Ct. at 1202. The Court noted that
the treaty’s primary purpose was to transfer land, did not specifically mention usufructuary
rights, provided no consideration for their abrogation, and that the article concerning the
surrender of any other interests elsewhere in Minnesota was “designed not to extinguish
usufructuary rights, but rather to extinguish remaining Chippewa land claims.” Id. at 196-
199, 119 S. Ct. at 1201-02 (emphasis in original). Accordingly, the Court held that “there
is no reason to believe that the Chippewa would have understood a cession of a particular
tract of land to relinquish hunting and fishing privileges on another tract of land.” Id. at
202, 119 S. Ct. at 1203.4

4 Notwithstanding the Court’s holding that the Mille Lacs Band retains the usufructuary
rights granted in the 1837 Treaty, such rights are not immutable. Indeed, it is well settled
14
Northrup asserts that Mille Lacs is dispositive because it establishes that the
language in the 1855 Treaty was similarly not adequate to abrogate the usufructuary rights
guaranteed by the treaties of 1795 and 1825. And he argues as well that principles of res
judicata, collateral estoppel, and stare decisis apply to preclude the state’s arguments in
defense of this appeal because the same arguments were considered and rejected by the
Supreme Court in Mille Lacs. We disagree in both regards.
First, the Mille Lacs decision is factually distinguishable from Northrup’s case
because of the nature of the rights at issue. The Mille Lacs Court addressed usufructuary
rights that had been explicitly guaranteed and reserved by the treaty of 1837. Here,
however, because the 1795, 1825, and 1826 treaties relied upon by Northrup did not
independently guarantee any usufructuary rights, the only rights to the use of Gull Lake
which Northrup can assert are those incidental to aboriginal title and right of occupancy to
the land. The materiality of the distinction between these rights is evidenced by the
Supreme Court’s prior decision in Oregon Dept. of Fish and Wildlife v. Klamath Tribe ,
473 U.S. 753, 105 S. Ct. 3420 (1985), and the discussion of that opinion in Mille Lacs.
In Klamath, the tribe ceded land to the United States in 1864, a portion of which
was set aside as a reservation on which the tribe retained exclusive usufructuary rights;
“[n]o right to hunt or fish outsid e the reservation was preserved. ” Klamath, 473 U.S. at
755, 105 S. Ct. at 3422. It was subsequently discovered that a certain amount of land had

that Congress may unilaterally abrogate Indian treaty rights upon a clear expression of its
intent to do so. South Dakota v. Bourland, 508 U.S. 679, 687, 113 S. Ct. 2309, 2315-16
(1993); State v. St. Clair, 560 N.W.2d 732, 734 (Minn. App. 1997).
15
been erroneously excluded from the drawn bo undaries of the reservation. Id. at 755-756;
105 S. Ct. at 3422. A second treaty was entered into in 1901 in which the tribe ceded all
right and title to the excluded land in exchange for monetary consideration. Id. at 760, 105
S. Ct. at 3425. In 1982, the tribe filed for an injunction to prevent the state from interfering
with members’ hunting and fishing activities on the later-ceded land, claiming that such
activities remained protected under the usufructuary guaran tees of the original treaty
notwithstanding the later transfer of title Id. at 762, 105 S. Ct. at 3426.
In describing the initial cession of land, the Court stated:
Before the 1864 Treaty was executed, the Tribe claimed
aboriginal title to about 22 million acres of land. The Treaty
language that ceded that entire tract—except for the 1.9 million
acres set apart for the Klamath Reservation —stated only that
the Tribe ceded “all their right, title, and claim” to the
described area. Yet that general conveyance unquestionably
carried with it whatever special hunting and fishing rights the
Indians had previously possessed in over 20 million acres
outside the reservation. Presumptively, the similar language
used in the 1901 Cession Agreement should have the same
effect.

Id. at 766, 105 S. Ct. at 3428 (emphasis added). As this language clearly indicates, the
Court understood that the aboriginal hunting, fishing, and gathering rights attendant to
Indian title are effectively extinguished upon the exchange of all “right, title, and claim” to
the land, without the need for greater elaboration or specificity in the treaty. Id. The Court
in Mille Lacs, in rejecting the state’s reliance on Klamath, acknowledged this distinction:
Klamath does not control this case. First, the Chippewa’ s
usufructuary rights under the 1837 Treaty existed
independently of land ownership; they were neither tied to a
reservation nor exclusive. In contrast to Klamath, there is no
16
background understanding of the rights to suggest that they are
extinguished when title to the land is extinguished.

Mille Lacs, 526 U.S. at 201-02, 119 S. Ct. at 1203.
By distinguishing Klamath in this way, the Mille Lacs Court appears to have tacitly
recognized a substantive difference between aboriginal and treaty-guaranteed rights; at a
minimum, it did not overrule the Klamath court in this regard. Here, because the terms of
the 1855 Treaty contained a similar conveyance of “all right, title, and interest” in the land
being ceded, and because Northrup is only able to assert aboriginal title, it is at best unclear
whether the Court would have reached the same conclusion had it been presented with
these differing circumstances. 1855 Treaty, art. 1, 10 Stat. 1165. Because Mille Lacs,
therefore, does not adequately address or resolve the issues presented here, we conclude
that it does not compel us to depart from the Minnesota Supreme Court’s opinion in
Keezer.5
Second, the state’s arguments are not precluded under the doctrines of res judicata,
or collateral estoppel with regards to the Mille Lacs decision. “Fundamental to both
doctrines is that a right, question or fact distinctly put in issue and directly determined by
a court of competent jurisdiction . . . cannot be disputed i n a subsequent suit between the

5 Although not addressed by the parties, it warrants mention that—even if applicable—the
Mille Lacs decision would not necessarily have precluded the state’s prosecution of
Northrup. The Court noted that it has “repeatedly reaffirmed state authority to impose
reasonable and necessary nondiscriminatory regulations on Indian hunting, fishing, and
gathering rights in the interest of conservation. Mille Lacs, 526 U.S. at 205, 119 S. Ct. at
1205; see also Klamath, 473 U.S. at 765 n.16, 105 S. Ct. at 3427. Accordingly, even if the
1795 and 1825 treaties had established guaranteed usufructuary rights to Gull Lake, it is
not clear that Northrup would be entitled to outright dismissal of the charges against him.
17
same parties or their privies.” Hauschildt v. Beckingham , 686 N.W.2d 829, 837 (Minn.
2004) (quotations omitted). Such doctrines are inapplicable here, first, because the parties
are not the same. Northrup is an individual private party, he does not represent the Mille
Lacs Band of Chippewa Indians, and neither is he a member of that Band. Second, the
state does not appear to dispute any of the issues directly decided by the Supreme Court in
Mille Lacs, and Northrup does not identify what specific facts decided by the court the state
is attempting to relitigate. For these reasons, we decline to apply either res judicata or
collateral estoppel. And because, as previously discussed, the Mille Lacs decision does not
resolve the questions presented in this appeal, the doctrine of stare decisis is similarly
inapplicable. See Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn. 2000) (“The
doctrine of stare decisis directs that we adhere to former decisions in order that there might
be stability in the law.”).
We accordingly hold that the district court did not err when it denied Northrup’s
motion to dismiss the charges against him, and we affirm the judgment of the district court.
Affirmed; motion granted in part and denied in part.

D-1

KLAPHAKE, Judge (dissenting)
I respectfully dissent. I disagree with the majority’s conclusion that the canons of
construction that apply to the interpretation of Indian treaties do not apply to this case. The
court in Keezer acknowledged the canons but determined they did not apply to the
interpretation of the 1795 and 1825 treaties because the treaties did not cede land from the
Indians to the United States. State v. Keezer , 292 N.W.2d 714, 717, 720 (Minn. 1980).
But in Mille Lacs, the Supreme Court observed that we apply the canons of construction to
treaties in order “to give effect to the terms as the Indians themselves would have
understood them.” Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 196,
119 S. Ct. 1187, 1201 (1999). The Chippewa and the United States participated in the
negotiations of and were signatories to the 1795 Treaty of Greenville and 1825 Treaty of
Prairie du Chien, and the treaties imposed obligations on both the Indian signatories and
the United States. The application of the canons of construction under these circumstances
is equally necessary to achieve the goal expressed in Mille Lacs of interpreting the terms
as the Indians themselves would have understood them.
There is no logical reason to limit the application of the canons of construction to
land-cession treaties. Indeed, the United States Supreme Court has applied the canons to
treaties that do not involve the cession of land to the United States. See Choctaw Nation
of Indians v. United States, 318 U.S. 423, 430-32, 63 S. Ct. 672, 677- 78 (1943)
(acknowledging the applicability of the canons to a treaty negotiated by the United States
between the Chickasaw Nation and Choctaw Nation regarding the allotment of common
tribal land to individual tribal members). Moreover, the 1795 Treaty of Greenville

D-2

established a boundary line on disputed territory and expressly provided for certain land
cessions from the Indians to the United States, which supports the application of the canons
of construction even when applying the limitation from Keezer that the canons only apply
to land-cession treaties. 1795 Treaty with the Wyandot, Etc., art. 3, Aug. 3, 1795, 7 Stat.
49. I would therefore conclude that the canons of construction apply and require an
examination of the historical record surrounding the treaty negotiations in order to interpret
the terms of the treaties.
In Mille Lacs, the Supreme Court emphasized the importance of analyzing how the
Indian signatories to a treaty would have understood the terms at the time of signing when
interpreting a treaty. 526 U.S. at 196- 98, 119 S. Ct. at 1200. The Court noted that to do
so “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.’” Id. at 196, 119 S. Ct. at 1200 (quoting Choctaw Nation, 318 U.S. at 432, 63 S. Ct.
at 672). In Keezer, the dissent observed that an analysis of the historical record was
necessary because the majority’s conclusion —that the references to hunting and fishing
rights in the treaties referred to a property right incident to title of the land —was
inconsistent with the Indians traditional understanding of such rights. Keezer, 292 N.W.2d
at 722-23 (Wahl, J., dissenting). Justice Wahl analyzed the Journal of Proceedings of the
1825 Prairie du Chien and concluded that the Indian signatories understood “hunting and
fishing and ricing rights as separate from rights of ownership of the land itself, not
dependent upon, or incident to, fee title.” Id. Thus, when the canons of construction are
applied and the historical context is analyzed, the terms of the treaties are susceptible to

D-3

multiple interpretations. And the canons of construction require that all ambiguities be
resolved in favor of the Indians.
Based on the circumstances of this case, I would remand the case to the district court
to make factual findings in light of the historical record. See State v. Butcher, 563 N.W.2d
776, 781-83 (Minn. App. 1997) (noting that district court must make detailed factual
findings on the treaties when interpreting Indian treaties), review denied (Minn. Aug. 5,
1997). As the majority observes, the 1855 Treaty with the Chippewa extinguished all
Indian title to the land in question, and with it all the incidental rights to hunt and fish. But
it did not abrogate any treaty -guaranteed rights, and such rights must be expressly
abrogated. Mille Lacs, 526 U.S. at 200, 204, 119 S. Ct. at 1202-03. Accordingly, I would
reverse and remand for the district court to make additional findings of fact on the 1795
and 1825 treaties. Those findings should reference the canons of construction that apply
to Indian treaties and whether the Indians understood these treaties as guaranteeing
usufructuary rights. I would also allow the district court in its discretion to reopen the
record to provide “the history of the treat[ies], the negotiations, and the practical
construction adopted by the parties.” Choctaw Nation, 318 U.S. at 432, 63 S. Ct. at 678.