Minneapolis — The coming together of the treaty rights and the federal Lacey Act further muddied the treaty waters this week when a federal judge agreed to drop charges against five American Indian tribal members charged with illegally catching and selling walleyes caught from some of Minnesota’s most popular lakes, like Upper Red and Leech.
The decision Monday by U.S. District Judge John Tunheim comes only a few weeks after another federal judge, Richard H. Kyle, refused to dismiss similar charges against other tribal members involved in the same case.
Officials say it’s possible that tribal charges either have been or could be brought against those who’ve successfully had federal charges dropped. It’s also possible, according to the U.S. Attorney’s Office in Minneapolis, that Monday’s decision be reconsidered on appeal – or the rejection of dismissal of charges against the other tribal members could be revisited.
State DNR officials said earlier this week the implications of Monday’s action weren’t quite clear, but they would be discussing the matter, and if or how the agency should react.
“It may have a significant impact, or it may not,” said Mike Carroll, DNR assistant commissioner. “We’re just not sure yet.”
Besides 10 individuals charged in federal court, “Operation Squarehook” also resulted in charges filed in state and tribal court against up to 40 others involved in the alleged illegal operation, the investigation of which began nearly four years ago. It’s not known how many walleyes were allegedly illegally sold.
According to an April 10, 2013 press release from the U.S. Attorney’s Office in Minnesota, 10 individuals were charged in federal court with one count of transportation, sale, and purchase of fish taken in violation of the Lacey Act. The same press release says each indictment alleges the defendants “knowingly engaged in conduct that involved the sale and purchase of fish with a market value in excess of $350.”
The investigation involved officers from the state DNR, the U.S. Fish and Wildlife Service, and tribal conservation officers.
However, Judge Tunheim said in his Monday decision that the “defendants’ rights under the 1837 Treaty preclude their prosecution under the Lacey Act.
“The 1837 Treaty protects defendants’ right to engage in the conduct underlying the indictment, unless limited by tribal law, and Congress has not abrogated that right.”
In other words, it appears the cases “belong in tribal court,” said Jason Stark, a policy analyst for the Great Lakes Indian Fish and Wildlife Commission’s Division of Intergovernmental Affairs.
And, according to the chief conservation officer for the Red Lake Nation, that’s where the case against one of those whose indictment recently was overturned, could end up.
According to Pat Graves, chief CO for Red Lake, charges have been filed against a total of five tribal members busted in Squarehook. That includes Larry Good, a 53-year-old Red Laker whose indictment was dropped this week.
Other tribal members facing federal charges are from the White Earth and Leech Lake Ojibwe bands; their tribal courts, too, could see individuals whose federal charges were dropped.
In his decision, Judge Tunheim wrote that the Leech Lake and White Earth bands “have adopted a comprehensive conservation code to regulate Indian hunting and fishing within the reservation.”
Where tribal sale of fish, like walleyes, is allowed, it is regulated, according to GLIFWC’s Stark. That commission represents 1836, 1837 (the Mille Lacs area), 1842, and 1854 (Duluth area) treaty areas.
Some bands explicitly deny the sale of fish, Stark said. “Some allow it, but when they do, it’s highly regulated.” That’s so that tribes may keep track of the amount of fish sold, and the process by which it’s sold, he said.
Of those under the GLIFWC umbrella, “it’s about half and half,” Stark said.
Monday’s court action
Judge Tunheim’s decision Monday may not have come as a surprise, were it not for a decision from a fellow judge last month, one that contradicted that rendered by Tunheim this week.
In two separate orders, Tunheim dropped federal charges against Leech Lake tribal members Michael Brown, 54 (no address), Marc Lyons, 61, of Bena, and Jerry Reyes, 51, of Cass Lake; White Earth band member Frederick Tibbetts, 62, of Bena; and Red Lake member Larry Good, 59, of Red Lake.
Tunheim also denied a motion to dismiss charges against Bena restaurant owner Alan Hemme, 56.
Tunheim’s decision was a stark departure from Judge Kyle’s decision last month to deny the dismissal of charges against Thomas Sumner, 54, and Brian Holthusen, 47, both of Red Lake.
Also originally charged were Larry Bellefy, 53, of Bagley, and Michael Nei, 48, of Bemidji.
It was estimated in April another 30 people could be charged in state court, and another 10 or more could be tried in tribal court.
In August, Magistrate Judge Leo I. Brisbois recommended to deny the dismissal of indictment in the federal Squarehook cases.
It’s typical, following the report and recommendation of a magistrate judge, that a district judge review and evaluate a case, and if a number of cases are intimately related – as in Squarehook charges – one judge will take on all of them. That didn’t happen.
Attorney and Outdoor News contributor Kirk Schnitker said the “split decision” will require resolution.
“One big question that lurks is the conflicting decisions that exist between the two federal court judges, and that tie likely will require an appeal or two before it is sufficiently addressed,” he wrote in an email response.
Those parties close to the case were still trying earlier this week to sort through Judge Tunheim’s decision and its possible implications.
Central to the decision were the Lacey Act and the 1837 Treaty.
While the Leech Lake and Red Lake reservations lie in the 1855 Treaty area, GLIFWC’s Stark said treaty language that came on the heals of earlier treaties often carried “implied” language, thus Judge Tunheim’s reference to the 1837 Treaty in his decision.
He writes that, “The Supreme Court also noted that the Senate chairman of the Committee on Indian Affairs at the time of the 1855 Treaty was signed stated that the treaties would reserve to the Chippewa ‘those rights which are secured by former treaties… ’ “
And, regarding the Lacey Act and its relationship to treaty rights, the judge writes: “ … the best interpretation of the Lacey Act as a whole is that Congress intended all extant (remaining) treaty rights to remain intact.”
In denying dismissal of the cases against Holthusen and Sumner, however, Judge Kyle called Magistrate Judge Brisbois’ recommendation “thorough and well-reasoned.”
After reviewing Tunheim’s decision, attorney Jon Morphew said he believes Tunheim “took the word ‘abrogate’ too literally.” In other words, he wrote in an email, he believes the Lacey Act, fashioned around 1900, was meant to apply in cases where tribal members violated tribal laws.
“The Leech Lake Band has a tribal law that says members cannot sell fish they take by gill net,” Morphew wrote. “The defendants violated that tribal law, which seems to me to be a violation of the Lacey Act.”
He also says a clarification of the Lacey Act regarding treaty matters likely needs to come from Congress, which, he said, “is probably easier said than done.”
Earlier this week, no follow-up motions had been filed regarding the federal charges and the individuals involved.
However, the DNR’s Enforcement chief, Ken Soring, provided an update on those charged at the state level in Squarehook.
Of those: 13 have been convicted or entered a guilty plea; four cases have been dismissed or declined (some were referred to band officials for charging, were declined due to a lack of intent or knowledge, and one person is deceased); one wasn’t charged because of the expiration of the statute of limitations; four entered not guilty pleas and await court hearings; and charges are pending against eight individuals.
Regarding the implications of Monday’s ruling, Soring said, “At this point, we’re deferring to the (federal) prosecutors (regarding the) federal cases.”