MINNEAPOLIS (AP) – Indictments against five people accused of poaching walleye and other fish from the Leech Lake and Red Lake reservations and selling them on the black market were dismissed Monday by a federal judge who said treaties with the Chippewa Indians protect their rights to fish on tribal lands.
U.S. District Judge John Tunheim wrote that an 1837 treaty guarantees those hunting and fishing privileges. He said Congress hasn’t abolished fishing rights outlined in the treaty or in subsequent treaties, and those rights preclude prosecution under federal wildlife protection laws.
Tunheim’s ruling is contrary to one from U.S. District Judge Richard Kyle, who last month adopted a magistrate’s recommendations to allow a similar case to proceed. Attorneys for two defendants awaiting trial are now asking Kyle to reconsider.
“We now have the unseemly situation of 5 Indian defendants having their cases dismissed for violation of treaty rights … and two other defendants, who enjoy the protection of the exact same treaties, awaiting trial for the exact same conduct,” wrote defense attorneys for Red Lake members Thomas Sumner and Brian Holthusen.
A total of 10 people were indicted in federal court April for allegedly transporting and selling fish illegally. In addition to the five dismissed Monday, one defendant has pleaded guilty and cases against four are pending.
About two dozen others were charged in state and tribal courts, in what state authorities called the worst fish black marketing case in the last 20 years. In the federal case alone, the fair market value of the fish was estimated by authorities to be in the hundreds of thousands of dollars.
Tunheim’s ruling rejects recommendations by U.S. Magistrate Judge Leo Brisbois, who found that treaty rights do not exempt defendants from wildlife protection laws.
Brisbois said that while the defendants generally have the right to fish, their right is subject to regulation by the tribes, and the federal government has current jurisdiction in enforcing wildlife regulations.
Tunheim disagreed, saying treaties are to be interpreted liberally in favor of American Indians, and generally, tribal members have exclusive treaty rights to hunt and fish on reservations unless those rights are relinquished.
Tunheim dismissed indictments against Michael Brown, Jerry Reyes and Marc Lyons, all members of the Leech Lake Band of Chippewa, and Frederick Tibbetts, a member of White Earth. All were accused of using gill nets to take fish from lakes within the Leech Lake Reservation, then selling those fish for commercial purposes.
Tunheim said the question is whether the scope of those privileges includes the right to fish by any method, including netting, and the right to sell the fish.
“The Court is persuaded that the Treaty rights encompass both this method of catch and the sale of the fish, based on the understanding of the Chippewa at the time the Treaty was signed,” he wrote. He said nothing in the 1837 treaty restricts the manner of catching fish. The treaty also said the Chippewa may make a living off lakes and rivers, he said.
While Leech Lake and Red Lake were created in later treaties, 1955 and 1963 respectively, Tunheim said courts have consistently interpreted the subsequent treaties to preserve hunting and fishing rights.
However, Tunheim said while the treaty protects individual rights to net and sell fish, tribes may place restrictions. The federal government can also impose restrictions, but only when clearly stating that the intent is to abolish treaty rights, which isn’t the case here, Tunheim wrote.
The fifth man, Larry Good, was accused of taking fish from Red Lake without approval of the Red Lake Fisheries Association. Good raised similar treaty arguments, and his case was also dismissed.
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