By Randy Furst
Indictments have fizzled in the cases of 10 accused in a huge operation on state Indian reservations.
Like the big fish that got away, a federal crackdown last year on fish poaching on some of northern Minnesota’s most popular lakes has left authorities empty-handed.
Of the 10 federal indictments announced with much fanfare in April 2013, none has gone forward, to the delight of defense attorneys and to the dismay of sportsmen concerned that unchecked poaching will ruin the catch for legal anglers. Of the cases:
• Four have been dismissed in the past two months at the request of the prosecutors themselves after they discovered that the central argument in the indictment was flawed.
• Four other indictments were overturned by U.S. District Judge John Tunheim last November, citing a 177-year-old Indian treaty that he said trumped the legal case brought by the U.S. attorney’s office.
• Two other cases are on hold, awaiting the outcome of an appeal of Tunheim’s decision to the Eighth U.S. Circuit Court of Appeals. The Eighth Circuit does not often overturn district judges.
Tom Heffelfinger, former U.S. attorney, expressed disappointment at the status of the federal indictments. “It is unfortunate these cases are not resulting in people being held accountable, at least not yet,” said Heffelfinger, who is also the former counsel for the Leech Lake Indian Reservation. “These fish on these waterway are tremendous resources for these tribes, and without having prosecution as an effective tool to protect the waterways and the resources, it really undermines the ability of the tribes to protect tribal resources.”
Last spring, federal authorities announced that they had indicted 10 men from northern Minnesota on charges of netting hundreds of thousands of dollars’ worth of walleyes and other fish from the Red Lake and Leech Lake Indian reservations and selling them in violation of federal law. Others were charged in state and tribal courts.
“It’s a very big deal,” Jim Konrad, then enforcement director for the Minnesota Department of Natural Resources (DNR), said at the time. “It’s illegal activity that has significant effects not only on state resources but tribal resources.”
But the federal cases, at least, have gone badly, and defense attorneys have watched with some satisfaction as the legal justification for the prosecutions collapsed.
“Given the enormous investigative and prosecutorial resources that have been poured into this case, what the government now has to show for it is embarrassing,” said attorney Robert Richman, whose client, Thomas Sumner, a member of the Red Lake Band of Chippewa, had his case dismissed March 17.
Andy Luger’s first day
For Andy Luger, his first day as Minnesota’s new U.S. attorney was a sobering one.
He was sworn in at 2:30 p.m. Feb. 14, got fingerprinted, which is standard procedure, then filled out some initial paperwork. At 3:30 p.m., he arrived at his sixth-floor office, where he said three assistant U.S. attorneys were waiting to tell him some unsettling information: They had discovered “a potential flaw” in the indictment and needed to dismiss the case against four men charged in the poaching scheme on the Red Lake reservation.
The indictment alleged that the men had taken and sold the fish in violation of the U.S. Code of Federal Regulations, which states that “no person shall engage in commercial fishing” on Red Lake except as authorized by the Red Lake Fisheries Association, which was incorporated under Minnesota law.
“It was dissolved and now there is the Red Lake Nation Fishery,” said Luger. “It’s a new corporation, but it is not incorporated in the state of Minnesota and its bylaws have not been approved by the [U.S.\ secretary of Interior.” Nor had the U.S. code been revised to reflect the change.
“We all agreed on that Friday afternoon that the cases should be dismissed,” says Luger. “The issue was brought to the judge’s attention the next week, and the cases were dismissed.”
Luger observes that the defense did not alert them to the flaw, but prosecutors discovered their own mistake and to their credit disclosed it.
The four men in the Red Lake indictments will not be recharged, Luger said.
It was a roller-coaster legal journey for Larry Bellefy, a Red Lake band member and one of the 10 defendants. Bellefy, who owns a bar in Bagley, Minn., was indicted on a charge of buying poached fish and reselling it. He pleaded guilty July 26.
After Tunheim tossed four of the Leech Lake indictments in November, saying they violated Indian rights under an 1837 treaty, Bellefy tried to withdraw his guilty plea, but U.S. District Judge Richard Kyle would not allow it, and a sentencing date was set. After prosecutors revealed the legal flaw, Kyle dismissed Bellefy’s indictment.
In the state cases, the DNR has some “preliminary information” that 38 charges were brought against 26 individuals in Beltrami, Cass, Clearwater, Itasca, Otter Tail, Pennington and Polk counties.
Of the 38 charges, 30 resulted in convictions, the DNR said. Ken Soring, chief conservation officer for the DNR, said he believed that none of those convicted received jail time. One person charged is now deceased; one had his charge dismissed and referred to tribal court. Some cases involved plea agreements that included dismissal of some charges and convictions on others.
“There were another 11 individuals where 27 charges were identified that were not charged because of limitations, prosecutorial discretion, tribal jurisdiction or the individual being deceased,” the DNR said.
The status of cases brought in Red Lake or Leech Lake tribal courts is not known. Calls to officials at both reservations were not returned.
Let tribe handle it?
George Goggleye, chairman of the Leech Lake tribal government from 2004 to 2008, said in a recent interview: “I didn’t think [the indictments\ were a good idea to begin with. The tribe has its own conservation code. The tribal conservation officers should have handled this, not the government.” He said the men involved should have been issued tickets rather than being indicted.
“A lot of these people were my friends who were indicted, and provided fish to families who could not go out to fish themselves,” he said. “These people were targeted. It was politically motivated at the time. These people did not support the tribal leadership.”
With this year’s fishing opener on Saturday, the DNR’s Soring was asked what impact the federal inaction will have on enforcement. “We will still be enforcing state laws as we always have,” said Soring.
He also underscored that poaching hurts all anglers. “If everyone was compliant,” he said, “limits on walleye could potentially be higher than they are. Compliance is necessary in order to maintain a healthy fishery.”