By Randy Furst
A federal judge in Minneapolis on Monday threw out the indictments of five American Indians arrested in a major fish poaching case on Indian reservations in northern Minnesota, saying the men were protected under an 1837 treaty.
The decision by Judge John Tunheim of Minneapolis appears to be directly opposite to rulings by U.S. District Judge Richard Kyle of St. Paul on Oct. 31, creating a legal tangle that will likely keep attorneys and the 8th Circuit Court of Appeals busy well into 2014.
The contradictory decisions were described by several court observers as very unusual.
Former federal prosecutor Paul Murphy, who headed the criminal division of the U.S. attorney’s office from 1995 to 2005, said he could not recall two federal justices issuing opposing decisions in the same district and growing out of the same undercover investigation.
“Normally, in related cases, the court assigns all of them to one judge …,” Murphy said.
In a strongly worded memorandum filed Monday, attorneys for two Red Lake Indians whose indictments were not dismissed by Kyle — Thomas Sumner, 55, and Brian Holthusen, 48 — appealed to Kyle to reconsider his position in light of Tunheim’s “careful analysis.”
Lawyers Robert Richman and Shannon Elkins wrote: “There is now not only a split of authority in this district, there is a split of authority in what is, for all practical purposes, a single prosecution.
“We now have the unseemly situation of 5 Indian defendants having had 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. This situation cannot help but discredit the court in the eyes of the public.”
Background of cases
The five men whose cases were tossed by Tunheim were among 10 indicted on April 9 on charges of buying and selling hundreds of thousands of dollars’ worth of walleyes netted from lakes on the Leech Lake, Red Lake and other reservations in Minnesota. Charges against 28 other people were filed in state and tribal courts. More....