RED LAKE -- Two fishermen, Deland Beaulieu and Jacob Allen Kingbird, drowned in the icy waters of Lower Red Lake in November 2017.
Three years later, the circumstances surrounding their deaths, and who is responsible for them, are still playing out in the courts.
Two federal cases are ongoing: one between Red Lake Nation Fisheries and the U.S. Department of Labor (Eugene Scalia v. Red Lake Nation Fisheries Inc.) and another between the wife of one of the deceased fishermen and the Red Lake Band of Ojibwe (Beaulieu-Donnell v. Red Lake Nation Fisheries, Inc. et al).
As of early December, there have been new developments in both cases.
The first case between the U.S. Department of Labor and Red Lake Nation Fisheries hinges on whether or not federal Occupational Safety and Health Administration (OSHA) regulations apply to sovereign tribal nations and if health and safety inspectors were allowed within Red Lake’s bounds.
In the second, Crystal Beaulieu-Donnell claims defendants Dominick Johnson, the operator of the capsized fishing boat, Red Lake Nation Fisheries, and the Red Lake Band of Ojibwe are all negligent in the death of her spouse, Deland Beaulieu. Beaulieu-Donnell seeks damages for mental anguish, pain and suffering, income loss in the past and impairment of future earning capacity.
The Red Lake Nation Fishery is a tribal-owned and operated business that employs only tribal members. It began in 1919 and distributes fresh-caught Red Lake walleye for consumption around the country.
Here’s a look back at what has happened in regards to these two cases since the incident three years ago.
Two Red Lake Nation Fisheries employees went missing in the icy waters of Lower Red Lake.
On the afternoon of Nov. 6, 2017, Beaulieu, 29, and Kingbird, 17, were fishing on a Hewescraft Open Fisherman boat operated by Dominick Johnson on Lower Red Lake. The three were working as employees of Red Lake Nation Fisheries, which is owned and operated by the Red Lake Band of Ojibwe.
After retrieving gill nets from the lake, the operator turned the boat and/or contacted land, according to the initial facts laid out in the case. The boat capsized, throwing all three employees into the lake. None of the three employees were wearing personal floatation devices. The boat operator, Johnson, was able to swim to shore and suffered hypothermia as a result of exposure to cold water.
The other two employees, Beaulieu and Kingbird, were missing and presumed dead. Searches for the two missing fishermen began soon after and continued throughout the rest of the calendar year.
Two months after the initial incident, on Jan. 3, 2018, the Red Lake Tribal Council reopened the lake for fishing.
“Lower Red Lake and (Upper) Red Lake have been officially opened by Tribal Resolution for Red Lake fishermen. The tribal resolution only applies to enrolled Red Lake tribal members and the Tribal Council respectfully requests that the fishermen are 18 or older to prevent possible trauma in case someone finds one of the missing fishermen,” a Jan. 4, 2018, Facebook post from the Red Lake Tribal Police Department said. “Non-Band members are not allowed on the lakes in areas that fall within the exterior boundaries of Red Lake Reservation as designated in the Tribal Resolution.”
The bodies of the fishermen were recovered on March 21 and 22, 2018.
A news release posted to the Red Lake Police Department’s Facebook page on March 22, 2018, said that Red Lake conservation officers and a tribal council representative found one of the fishermen -- later identified as Kingbird -- at about 2:15 p.m. on March 21. He was found in shallow water near an area of Lower Red Lake called “second bridge.”
The same group of searchers found the second fisherman -- 29-year-old Beaulieu -- at about 8 a.m. on March 22, about 150 feet away from where they found Kingbird. Both bodies were found using a remote-operated underwater vehicle equipped with a camera and sonar.
The U.S. Occupational Safety and Health Administration came to inspect Red Lake Nation Fisheries on March 23.
On March 23, an official from the U.S. Occupational Safety and Health Administration area office located in Eau Claire, Wis., conducted an inspection at the Red Lake Nation Fisheries location in Redby, according to the initial OSHA report.
On April 26, the U.S. Occupational Safety and Health Administration issued two citations to Red Lake Nation Fisheries, one “serious” citation and one “other than serious” citation, with penalties for each violation.
The U.S. Occupational Safety and Health Administration issued the fishery two citations for failure to require the use of personal flotation devices and failure to report the death of an employee within eight hours. These two offenses had a proposed total penalty of $15,521.
Red Lake Nation Fisheries quickly contested the citations and filed a motion to have the citations dismissed.
The Occupational Safety and Health Review Commission sided with them, in August of 2019, ultimately dismissing the fines.
The Occupational Safety and Health Review Commission cited Red Lake Nation Fisheries’ arguments that the Red Lake Band of Ojibwe has a right to self govern workplace health and safety, due to tribal sovereignty.
The commission also noted Red Lake Band’s inherent right to exclude non-members from its reservation, including safety inspectors.
The commission dismissed the fines citing Red Lake’s, “inherent authority to regulate workplace health and safety for a tribal commercial enterprise that operates on the tribe’s reservation, for a statute of general application such as the OSH Act to affect that right of tribal self-government requires evidence of a clear and plain congressional intent to do so, and because there is no affirmative evidence of any such clear and plain congressional intent, the Eighth Circuit would likely hold that the OSH Act does not apply to the (Red Lake Nation Fishery) workplace.”
In layman’s terms: the fines were dismissed by the commission because Red Lake Nation Fisheries is operated by a sovereign tribal government, meaning that the tribe has the right to regulate its own health and safety standards. The commission said in order to change this there would need to be obvious evidence that Congress intended for OSHA rules to apply to tribal-owned and operated businesses, and warned that the 8th District Court of Appeals would likely agree with them.
“For the reasons described below, the motion is granted on the grounds that the OSH Act does not give the Secretary of Labor the authority (1) to regulate the conditions of workplace health and safety at the Respondent’s workplace, or (2) to enter the tribe’s reservation to inspect the Respondent’s workplace,” the decision read.
The Department of Labor Secretary, Eugene Scalia, then appealed the Occupational Safety and Health Review Commission’s decision, and argued the judge “erred because the OSH Act applies to tribal businesses unless Congress says otherwise.”
In March 2020, the complaint in the Beaulieu-Donnell case was initially filed in U.S. District Court.
Crystal Beaulieu-Donnell, acting as trustee for her husband, Deland Beaulieu, filed a suit on March 25 under the federal Jones Act and general maritime law, alleging that the Red Lake Band of Ojibwe, Red Lake Nation Fisheries, and the boat operator, Dominick Johnson, were negligent in Beaulieu’s death. Beaulieu-Donnell seeks damages for mental anguish, conscious pain and suffering, income loss in the past and the impairment of future earning capacity.
She claimed the defendants were at fault due to the “unseaworthiness” of the fishing vessel, the lack of personal safety equipment and training provided, and the skill-level of Johnson, the boat operator.
The fishery failed to provide a "skilled, competent and unimpaired" vessel operator and didn’t have safety devices onboard such as emergency radio beacons, two-way radio communication devices or personal flotation devices, according to the suit. There were also no cold-water survival suits or multiple light beacons aboard the craft, the suit alleged.
In May, summons were issued against Johnson, the fishery and the tribe in the Beaulieu-Donnell case.
Dec. 4, 2020, was an eventful day for both cases.
In the OSHA case, the U.S. 8th District Court of Appeals ruled in favor of Red Lake Nation Fisheries and denied the Department of Labor’s petition for review, in agreement with the commission’s earlier decision.
Citing the sovereignty of Red Lake Nation, the 8th U.S. Circuit Court of Appeals denied a review of the Occupational Safety and Health Review Commission’s dismissal of the fines.
The court determined that the commission did not “err” in its initial decision that OSHA regulations are not enforceable to the tribe, because its enforcement would, “dilute the principles of tribal sovereignty and self-government recognized in the applicable treaty which gave the tribe fishing rights in the reservation; even if OSHA applied to Indian activities in other circumstances, OSHA would not apply to an enterprise owned by and consisting solely of Red Lake Tribe members.”
Its decision called Red Lake one of the most sovereign tribal nations in the United States.
“Red Lake (is) perhaps the most insular and nonintegrated reservation in the United States; it has also preserved for the band an independence not experienced on other reservations,” and adding, “(e)ven if OSHA applied to Indian activities in other circumstances, OSHA does not apply to an enterprise owned by and consisting solely of members of perhaps the most insular and independent sovereign tribe.”
This decision is a tribal sovereignty win for Red Lake, and basically reaffirms that Red Lake tribal-owned and operated businesses can regulate their own health and safety and don't have to submit to OSHA, and does not infringe on Red Lake's right to deny entry to non-band members.
In the Beaulieu-Donnell case, both the plaintiff and defendants entered their case statements on Dec. 4.
Beaulieu-Donnell laid out her version of events (described above under initial complaint filings) and proposed financial damages. On the conservative end, the plaintiff estimated at least $234,000 in future lost wages from Beaulieu ($6,500 a year multiplied by the 36 years of estimated future work if he would have completed until age 65). On the high end of the spectrum, Beaulieu-Donnell claims damages of up to $5,000,000, for Beaulieu’s next of kin, citing similar wrongful death suits in the past.
The defendants’ case statement denied these claims for three reasons, one being that Beaulieu-Donnell did not first try to file a complaint in tribal court -- Beaulieu-Donnell already received money from the tribal worker’s compensation program -- and that tribal sovereignty would negate the claims made under the federal Jones Act. It also mentioned that the Jones Act could not be used as an argument against Johnson, the boat operator, as he was not an employer of Beaulieu.
It does not yet appear that a trial in the Beaulieu-Donnell case has been scheduled.