Updated: 2:05 p.m. | Posted: 8:47 a.m.
The Minnesota Department of Natural Resources cited Ojibwe tribal members Friday on two northern Minnesota lakes on the second day of their efforts to challenge their land use rights under an 1855 treaty.
White Earth member Todd Thompson and Fond du Lac Band member James Northrup were cited for setting a gillnet in Gull Lake near Nisswa, Minn. Tribal members also harvested wild rice on nearby Hole-in-the-Day Lake without a required state permit.
The tribe members hope the citations will open the department to a court battle that could clarify treaty rights.
The state's longtime position has been that it's illegal to harvest wild rice without a license on off reservation land. When tribal members harvested rice Thursday the DNR issued a special event permit to "de-escalate" the situation, said Ken Soring, DNR enforcement chief.
Early Friday as tribe members gathered at Hole-in-the-Day lake again for a second attempt at citations this morning, DNR Commissioner Tom Landwehr warned the group in an interview with MPR's Cathy Wurzer.
"It's likely we will have some enforcement action today," Landwehr said.
For more than an hour, tribe members harvested wild rice on Hole-in-the-Day. When DNR enforcement officers did not come to stop them, White Earth member Leonard Thompson decided it was time to break out the gillnet.
"The DNR doesn't really care about wild rice, but they get very touchy about their fish," said White Earth member Leonard Thompson.
"Netting is a whole different ball game," he said. "The DNR doesn't really care about wild rice, but they get very touchy about their fish."
Thompson's son Todd, and James Northrup paddled out on Gull Lake at 10:30 a.m. with a 6-by-200 foot net. Within minutes, three DNR enforcement officers arrived in a boat, removing the net and looking for those responsible for setting it.
A short time later Thompson and Northrup turned themselves into the officers. Capt. Tom Provost of the DNR said the two could not be given citations on the spot since gillnetting without a permit is a gross misdemeanor. Instead they were written up, and the reports sent to Crow Wing County Attorney Donald Ryan.
"It's in his hands now if he wants to press charges," Provost said.
County Attorney Donald Ryan said he will make the decision based on the reviewing the reports from the officers.
This enforcement action, according to White Earth attorney Joe Plumer, places the treaty rights effort exactly where it was five years ago, after a similar challenge carried out on Lake Bemidji.
In 2010, a group of 200 tribe members set gillnets on Lake Bemidji. Their nets were taken and reports were filed, but the Beltrami County attorney did not press charges. The only difference between today and five years ago, Plumer said, is today Thompson got his net back.
After giving a statement to Provost, Todd Thompson walked away with his arms full of the crumpled net he set half an hour before.
"They didn't give me the fish that were in it," he said.
Plumer said, if Crow Wing County Attorney Ryan does charge Thompson and Northrup, the next step will be an appeal to federal court.
"If he doesn't charge," Plumer said, "we're stalled again."
Agency officials have cited tribal members in the past for gathering wild rice or fishing out of season or without a permit outside of reservations. But Landwehr said no county attorneys have ever prosecuted the cases.
Landwehr said the agency isn't "afraid" of a court challenge, but that it would be very expensive and the outcome could go either way.
"Our plain-language reading of it is different than the ways the tribes interpret it," Landwehr said. "Ultimately, it's going to have to go to court to resolve the question, but I don't think anybody knows what the outcome will be."