By Amy Forliti
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. More....