U.S. v. Gotchnik

• Citation: 57 F.Supp.2d 798
• Decision Date: 28 May 1999
• Docket Number: No. 98-302 ADM/RLE.,No. 98-262 ADM/RLE.,98-262 ADM/RLE.,98-302 ADM/RLE.
• Parties: UNITED STATES of America, Plaintiff, v. David J. GOTCHNIK, Defendant, and United States of America, Plaintiff, v. Mark R. Steptec, Defendant.
• Court: U.S. District Court — District of Minnesota

57 F.Supp.2d 798

UNITED STATES of America, Plaintiff, v. David J. GOTCHNIK, Defendant, and United States of America, Plaintiff, v. Mark R. Steptec, Defendant.

No. 98-262 ADM/RLE.

No. 98-302 ADM/RLE.

United States District Court, D. Minnesota.

May 28, 1999.

Clifford B. Wardlaw, Assistant United States Attorney, Minneapolis, MN, for plaintiff.

Mark A. Anderson, Jacobson, Buffalo, Schoessler & Magnuson, Ltd., Minneapolis, MN, for defendant.

MEMORANDUM OPINION AND ORDER

MONTGOMERY, District Judge.

I. INTRODUCTION

The above-entitled matters came on for hearing before the undersigned United States District Judge pursuant to the Defendants' Motion for the Entry of Judgment of Acquittal. See 28 U.S.C. § 636(a)(3); 18 U.S.C. § 3401(a) and (b). For the following reasons, Defendants' motion is granted in part and denied in part.

II. BACKGROUND

Defendants David J. Gotchnik ("Gotchnik") and Mark F. Steptec ("Steptec") are members of the Bois Forte Band of Chippewa Indians, one of the federally-recognized Indian tribes which were signatories to the Treaty of September 30, 1854, 10 Stat. 11-09 ("the 1854 Treaty"). Under the treaty, the Bois Forte and other Bands ("the Bands") ceded to the United States a portion of the State of Minnesota which included what has become the Boundary Waters Canoe Area Wilderness ("BWCAW") of the Superior National Forest. Article 11 of the Treaty provided that "such of [the Indians] as reside in the territory hereby ceded, shall have the right to hunt and fish therein." The Chippewa have continued to hunt, fish, and gather throughout the ceded territory pursuant to regulations adopted by the Bands. See Grand Portage Band of Chippewa of Lake Superior, et al. v. State of Minnesota, Civ. No. 4-85-90, Mem. and Order (D.Minn.1988) (approval of consent decree requiring Bands to regulate hunting, fishing and gathering in the ceded territory).

In July 1998, Gotchnik traveled across Basswood Lake in the BWCAW in a canoe powered by an 8 horsepower motor. See Stipulation of Facts at ¶ 1. Such motors are prohibited in the area of Basswood Lake north of Washington Island. Id. On his return from this "no motor" area, Gotchnik was observed by Forest Service officers. He identified himself as a member of the Bois Forte Tribe, but was nonetheless cited for violating the federal regulation prohibiting the use of motorized vehicles in portions of the BWCAW. Id. at ¶ 3.

In April 1998, Steptec crossed the frozen waters of Basswood Lake on a motorized all-terrain vehicle ("ATV") in order to fish in one of the lake's back bays. Id. at ¶ 6. His ATV and fishing equipment — including a motorized ice auger — broke through the ice and fell into the icy water. Steptec notified the authorities; and once the ice conditions permitted boat travel, Steptec and Forest Service officers retrieved the vehicle and the equipment. Id. Thereafter, Steptec was cited for illegal use of the motorized vehicle and ice auger within the BWCAW. Id. at ¶ 7.

III. DISCUSSION

Because Steptec's citation for the use of the motorized ice auger presents slightly different issues than the arrests for the use of motorized transportation, the vehicle and equipment violations are addressed separately.

A. Motorized Vehicle Counts

1. Affirmative Defenses

Steptec was charged with "Using motor vehicle in designated wilderness area," in violation of 36 C.F.R. § 261(a). Gotchnik was cited for "Possession and use of outboard motor in federally designated wilderness area," in violation of the same federal regulation. Both Steptec and Gotchnik now argue that, even if the United States has properly proven a prima facie violation of the regulation, their treaty rights, as a matter of law, preclude a finding of guilt. They claim that the Boundary Waters Canoe Area Wilderness Act of 1978, 92 Stat. 1640 ("the BWCAW Act") and its accompanying regulations may not be enforced against the Bands insofar as they affect fishing rights guaranteed by the 1854 Treaty. Defendants assert that, as members of the Bois Forte Band, their fishing activities in the ceded territory are subject only to regulation by the Bands and not by the United States government. Furthermore, they claim that the 1854 Treaty necessarily included the right to access fishing grounds through the use of available methods of travel. Finally, Defendants argue that the United States Congress never intended to abrogate, condition, or limit the exercise of the 1854 Treaty rights when drafting the BWCAW Act. There are two alternate grounds upon which Defendants' motion must be denied.

2. The Signatories to the 1854 Treaty Would Not Have Understood the Document to Include Unrestricted Travel to and From Protected Fishing Grounds.

As stated above, the 1854 Treaty clearly provided the Chippewa with full usufructuary rights over the ceded lands. Usufructuary rights include the right to "live off the land;" that is, to make a modest living by hunting and gathering from the resources of the land. See United States v. Bresette, 761 F.Supp. 658, 660 (D.Minn.1991); United States v. Gotchnik, Cr. No. 94-05, 1995 WL 312012 (D.Minn. March 28, 1995); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 348 (7th Cir.1983), cert. denied, 464 U.S. 805, 104 S.Ct. 53, 78 L.Ed.2d 72 (1983).

Indian treaties are treated like federal statutes and can be modified by congressional mandate. See Minnesota v. Mille Lacs Band of Chippewa, 526 U.S. 172, ___, 119 S.Ct. 1187, 1200, 143 L.Ed.2d 270 (1999); United States v. Dion, 476 U.S. 734, 738, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986). However, a reviewing court must presume that a statute does not abrogate the specific treaty rights. Such an abrogation must be through a clearly intended Act of Congress. See Mille Lacs, 526 U.S. at ___, 119 S.Ct. at 1203 (citing Dion, 476 U.S. at 740, 106 S.Ct. 2216) (holding that the Federal government "ha[s] the sophistication and experience to use express language for the abrogation of treaty rights"). As the Supreme Court has held: "What is essential is clear evidence that Congress actually considered the 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." Dion, 476 U.S. at 739-40, 106 S.Ct. 2216.

The prosecutions in this case were premised on a federal statute and regulations which cannot be read to modify or abrogate the rights reserved under the 1854 Treaty. Indeed, Section 17 of the BWCAW Act provides that: "[n]othing in this Act shall affect the provisions of any treaty now applicable to lands and waters, which are included in the mining protection area and the wilderness." The legislative history of the BWCAW Act further supports the absence of an intended congressional abrogation. The Act's Congressional committee report states:

Section 17 makes clear that the legislation is not to affect the provisions of any treaty which is now in effect. The Boundary Waters are affected by international boundary treaties with Canada, as well as by certain Indian treaties. All these existing agreements are to remain unaffected by the enactment of this legislation.

Rep. of House Comm. on Interior and Insular Aff. (Rpt. No. 95-1117, Part I) (1978). The Defendants maintain valid treaty rights to hunt and fish in the ceded territory, therefore the United States must demonstrate that the prosecutions for the use of motorized vehicles do not offend the 1854 Treaty.

Magistrate Judge Erickson considered the same issue in United States v. Gotchnik, 1995 WL 312012, at *3 ("Gotchnik I").¹ In that case, Gotchnik was cited for the use of a snowmobile in the BWCAW and raised the same affirmative defense as in the instant case. Judge Erickson found that, "it is not the existence of the usufructuary rights that were retained under the 1854 Treaty that are at issue but, rather, the nature and extent of the usufructuary rights that are open to contention." Id. at *4 (citing Bresette, 761 F.Supp. at 662). Here, as in Gotchnik I, there is no dispute that the Treaty allowed the Defendants to hunt and fish in the ceded territory. Congress has not abrogated that right. Instead, the operative question is whether the Chippewa would have understood the 1854 Treaty to protect their ability to travel to the most desired hunting and fishing locations by the latest technological means.

It is well-settled that Indian treaties must be liberally construed in favor of Native Americans. See State of Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979); Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975); Choctaw Nation of Indians v. United States, 318 U.S. 423, 432, 63 S.Ct. 672, 87 L.Ed. 877 (1943). In order to determine the nature and extent of treaty rights, the "history of a Treaty, the negotiations, and the practical construction of it by the parties to it may all be considered when interpreting an Indian Treaty." Mille Lacs Band of Chippewa v. Minnesota, 861 F.Supp. 784, 791 (D.Minn.1994), aff'd, 124 F.3d 904 (8th Cir.1997), aff'd, ___ U.S. ___, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999).

Defendants argue, without citation to any authority, that the rights guaranteed by the 1854 Treaty must also logically include the ability to meaningfully realize the benefits. If they are deprived the right to conveniently access the hunting and fishing grounds, Defendants claim that their rights to hunt and fish are rendered effectively hollow. See Def.Mem. in Supp. of Mot. for J. of Acq. at 5. Citing the Sixth Circuit Court of Appeals decision in Grand Traverse Band of Ottawa and Chippewa Indians v. Director, Michigan Dept. of Nat. Res., 141 F.3d 635 (6th Cir.), cert. denied, ___ U.S. ___, 119 S.Ct. 590, 142 L.Ed.2d 533 (1998), Defendants point out that the 1854 Treaty "did not in any way, limit the means by which fish were to be taken from the lakes or...