Walleye gillnetting and Indian self-governance: the Eighth Circuit holds that the feds can’t prosecute Chippewa gill-netters

United States v. Brown, No. 13-3800 (8th Cir. Feb. 10, 2015).

A 1849 petition from Ojibwe (Chippewa) leaders, complaining of treaty violations.

A 1849 petition from Ojibwe (Chippewa) leaders, complaining of treaty violations.

This is a case about tribal sovereignty. 

Under the Lacey Act, it’s a federal crime to sell fish that have been taken in a way that violates Indian tribal law. The defendants in this case, all members of the Minnesota Chippewa tribe, caught walleye on reservation land using a gill net and then sold the fish to non-Indians. This violated a tribal statute—and on the strength of that underlying violation, the federal government indicted the defendants under the Lacey Act. 

The defendants argue, though, that an 1837 treaty between the federal government and the Chippewas stands in the way of this prosecution. Under that treaty, the United States bought land from the Chippewas, but also guaranteed that the Chippewas would retain their rights to fish, hunt, and gather on the land—so-called “usufructuary rights.” These rights, as the Supreme Court declared in a 1999 decision, are still in effect. 

The Lacey Act, the Eighth Circuit holds, didn’t eliminate these usufructuary rights. And because individual members of a tribe can assert tribal usufructuary rights as a defense to criminal prosecution, the federal government can’t prosecute these Chippewa defendants for exercising those rights. 

The federal government does advance one pretty strong argument. This prosecution, says the government, “supports rather than undermines tribal sovereignty,” because it’s ultimately based on a violation of the tribe’s own laws. The Eighth Circuit responds, however, that a tribe doesn’t give up its rights just because it regulates those rights internally. Another way of stating this same point, perhaps, is that one of the hallmarks of tribal self-government is that the tribe, and not some other entity, is enforcing its own laws—and hence, enforcement of those laws by the federal government would undermine tribal sovereignty.