US v. Bresette, Crim. No. 5-90-7(1 & 2).

• Decision Date: 09 April 1991
• Docket Number: Crim. No. 5-90-7(1 & 2).
• Citation: 761 F. Supp. 658
• Parties: UNITED STATES of America, Plaintiff, v. Walter A. BRESETTE, and Esther Nahgahnub, Defendants.
• Court: U.S. District Court — District of Minnesota

761 F. Supp. 658

UNITED STATES of America, Plaintiff, v. Walter A. BRESETTE, and Esther Nahgahnub, Defendants.

Crim. No. 5-90-7(1 & 2).

United States District Court, D. Minnesota, Third Division.

April 9, 1991.

Jeanne J. Graham, Asst. U.S. Atty., Minneapolis, Minn., for plaintiff.

Jerod H. Peterson, Minneapolis, Minn., for defendants.

MEMORANDUM AND ORDER

MAGNUSON, District Judge.

This matter is before the court upon defendants' motion to dismiss following the trial of the matter to the court. For the reasons set forth below, defendants' motion is GRANTED.

FACTS

This is a prosecution for sale of migratory bird feathers pursuant to the Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712. More specifically, the case arises out of the sale of various items known as "dream catchers" at defendant Walter A. Bresette's store at the Miller Hill Mall in Duluth, Minnesota. At issue in this motion is whether defendants have the right to sell these items as members of the Chippewa tribe.

The facts which were elicited at trial are not in dispute. Because the case involves Indian treaty rights, the court will discuss in some detail the background of the parties. Defendant Walter A. Bresette is an enrolled member of the Red Cliff Band of the Lake Superior Chippewa Indians. He lives near Bayfield, Wisconsin on the Red Cliff Reservation where he operates a store known as the Buffalo Bay Trading Company. The Buffalo Bay Trading Company sells handcrafted items made by Chippewa and other Native Americans. The Miller Hill Mall store is Bresette's second Buffalo Bay Trading Company store. Esther Nahgahnub is an enrolled member of the Fond Du Lac Band of Lake Superior Chippewa who lives on the Fond Du Lac Reservation near Duluth.

The "dream catchers" at issue here are traditional Chippewa objects of artistic and spiritual value made of materials which include bird feathers. The Chippewa refer to the items as dream catchers because they are intended to be suspended over their beds or the beds of their children in the belief that the dream catchers will protect the sleepers from bad dreams which would otherwise enter them in their defenseless sleep. Dreams have great spiritual significance for the Chippewa. Feathers are incorporated into the dream catchers because birds also have great spiritual significance for the Chippewa, reminding them of the eagle, which they regard as the bridge from the material world to the spiritual world.

On December 16, 1989, a special agent for the United States Department of the Interior entered the Buffalo Bay store in Duluth and noted the presence of migratory bird feathers on the dream catchers. On December 18, a Minnesota Department of Natural Resources agent purchased a dream catcher from the store. The federal agent returned the next day and confronted Bresette, claiming that the dream catchers were illegal to sell based on the presence of migratory bird feathers. Esther Nahgahnub then told the federal agent that she had made some of the dream catchers in the store from owl feathers she had gathered off of road kill and from redtailed hawk feathers which she had acquired from a friend's molting bird. The federal agent seized five of the dream catchers and subsequently received a sixth from the Minnesota DNR agent after he saw news reports of the seizure.

Based on the government's laboratory analysis, the dream catchers contain Canada goose, blue/snow goose, and redtailed hawk feathers. Bresette testified that he received the redtailed hawk feathers from Nahgahnub. Nahgahnub obtained those feathers from land on or near the Fond Du Lac Reservation. Bresette received the other feathers from two women whom he knew were enrolled members of the Red Cliff Band of Lake Superior Chippewa.

DISCUSSION

Defendants do not dispute that their conduct is proscribed by the Migratory Bird Treaty Act, which provides as follows:

Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import ... any migratory bird, any part, or any product ... of any such bird ... included in the terms of the conventions between the United States and Great Britain for the protection of migratory birds ... the United States and the United Mexican States for the protection of migratory birds ... and the United States and the Government of Japan for the protection of migratory birds.

16 U.S.C. § 703. Defendants instead assert an affirmative defense: that they have the right to sell the dream catchers. The motion thus presents one legal question: do defendants have the right, as members of the Chippewa tribe, to sell migratory bird feathers obtained from land ceded by the Chippewa in the treaties of 1842 and 1854? This issue breaks down into three sub-issues: first, whether the Chippewa have a treaty right to sell such feathers; second, whether Congress abrogated the treaty right in enacting the Migratory Bird Treaty Act; and third, whether the Migratory Bird Treaty Act's proscription of the sale of migratory bird feathers in this case is a permissible, nondiscriminatory regulation of the Chippewa treaty rights under Puyallup Tribe v. Department of Game of Washington, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968). The answers are yes, no, and no.

I. Usufructuary Rights and the Treaty of 1854

Defendants claim that they have the right to hunt, fish and gather the fruits of the land ceded by the Chippewa in 1842 and 1854 from which the feathers were obtained. These rights are known as usufructuary rights — the right to make a modest living by hunting and gathering off the land. The background necessary to define the nature and extent of the Chippewa's treaty rights has been set forth in factual findings and holdings in a series of cases in the Seventh Circuit known as the Voigt cases.¹ The cases involve three treaties, the treaties of 1837, 1842, and 1854, in which the Chippewa ceded territory in the Northern Great Lakes region to the federal government. The 1854 treaty covers much of northeastern Minnesota, including the Fond Du Lac reservation. The 1837 and 1842 treaties cover the northeastern third of Wisconsin and portions of the Upper Peninsula of Michigan. The Red Cliff Reservation is within the territory ceded in 1842. See U.S. v. Bouchard, 464 F.Supp. 1316, 1364-76 (W.D.Wisc.1978) (appendix). It is not in dispute that both defendants are successors in interest to the Chippewa who entered into these treaties and thus have standing to assert the treaty rights at issue.

The Lake Superior Chippewas settled in the area noted above in the late 1600's and subsisted primarily on hunting, fishing, and harvesting wild rice and maple syrup. With the advent of separate territory status for Wisconsin in 1836 and increased settlement by Europeans, the government sought to buy Indian lands and remove the Indians to lands further west. Bouchard, 464 F.Supp. at 1322. The Chippewa agreed to cede territory in the 1837 treaty, but sought to preserve their right to use the land for their traditional subsistence methods. The treaty consequently stated that "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 sic to the Indians, during the pleasure of the president of the United States." Bouchard, 464 F.Supp. at 1365. In 1842 the land upon which the Red Cliff Reservation is located, inter alia, was ceded in a second treaty because that area was attractive for its mineral deposits, mainly copper. Again the Chippewa sought to maintain their use of the land, with the treaty stating that "the Indians stipulate for the right of hunting on the ceded territory, with the other usual privileges of occupancy, until required to remove by the President of the United States." Bouchard, 464 F.Supp. at 1367. In the years following the first two treaties the Chippewa did not move in large numbers to land in Minnesota as the government had hoped. Consequently, in 1850, the President issued a removal order in 1850 ordering the Chippewa to Minnesota. The Chippewa resisted (nonviolently) the order because it contradicted their understanding that they could remain living on ceded territory as long as they conducted themselves peaceably and did not cause trouble with European settlers. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341, 346-47 (7th Cir.1983).

The government then decided to employ a different strategy in light of the Chippewa opposition to removal. A reservation system was the result. The government established reservations (including the Fond Du Lac and Red Cliff) in the treaty of 1854, which also involved the ceding of the northeastern portion of Minnesota. Yet again the Chippewa sought to preserve their right to their hunting and gathering way of life on the land ceded: "Any such of them as reside in the territory hereby ceded, shall have the right to hunt and fish therein, until otherwise ordered by the president." Bouchard, 464 F.Supp. at 1373 (quoting the treaty).

Defendants contend that the 1854 and 1842 treaties reserve usufructuary rights including the right to take the bird feathers in question and sell them. The government reads the treaties more narrowly, claiming that there is no indication that the Chippewa understood their rights to include the sale of bird feathers. It is axiomatic that Indian treaty rights are to be afforded a broad construction and, indeed, are to be interpreted as the Indians understood them because the Indians were generally unlettered and the government had great power over the Indians with a corresponding responsibility toward them. See, e.g., Washington v. Washington State...