The federal government can’t prosecute members of a Chippewa tribe who gill-netted fish on a Minnesota reservation and sold their catch off-reservation, an appeals court has ruled.
A 19th-century treaty between the Chippewa and the U.S. government guarantees tribal members the right to fish and hunt, including the right to sell their catch, the 8th Circuit Court of Appeals panel unanimously ruled.
The court refused to reinstate felony charges against four enrolled members of Chippewa bands who netted fish for commercial purposes on the Leech Lake Reservation in northern Minnesota.
“This decision affirms the provisions of the 1855 treaty and, in doing so, the court has protected the tribal members’ rights,” said University of Minnesota law professor Joan Howland, an expert in Native American law. “I see this as a decision that will be seen as a positive, not only for tribes and bands in Minnesota, but for American Indian communities throughout the country.”
However, U.S. Justice Department public affairs officer Wyn Hornbuckle said, “This case arose in a very particular circumstance and, as the opinion itself notes, decisions/holdings in such cases are typically both very fact- and treaty-dependent.”
And Ken Soring, the Minnesota Department of Natural Resources (DNR) enforcement chief, said that despite the adverse court decision, “Operation Squarehook” was successful in encouraging voluntary compliance and deterring illegal commercializing of game fish.
“We’re all in this together to protect one resource,” Soring said.
The federal charges arose from a three-year undercover investigation launched in 2010 by the DNR into the allegedly illegal sale of fish, mostly walleye, by tribal members. Non-Indians bought the fish on the black market at below-market prices.
In “Operation Squarehook,” state agents, the U.S. Fish & Wildlife Service and police from the Red Lake and Leech Lake reservations made 31 arrests, with federal felony charges against 10 suspects — some members of the Chippewa and others non-members– and lesser state misdemeanor charges against others, none of them tribal members.
The U.S. Justice Department, which is prosecuting the federal case, characterized it in court papers as “an investigation focusing on the illegal commercialization and wanton waste of game fish.”
However, the Chippewa defendants’ court filings described the probe’s use of secretly recorded conversations, mobile tracking devices, interrogations. undercover surveillance and “other sophisticated investigative techniques more familiar to major drug traffickers than to Native American fishermen.”
Minneapolis lawyer Paul Engh, who represented one of the tribal members, said, “They spent a lot of money. They spent months and months” on the investigation.” Engh said the U.S. government had agreed in the early 1970s to allow the tribe to prosecute its members for game-related violations. The Leech Lake conservation law prohibits taking game fish for commercial purposes with gill nets, except for personal use.
Violators can be fined up to $500 in tribal court and jailed for up to 180 days. None of the federally indicted suspects was charged under the tribal code.
The grand jury indictment was based on a federal law that makes fishing “in violation of any Indian tribal law” a crime carrying a maximum five years in prison and $20,000 fine.
A U.S. District Court judge dismissed the charges against Marc Lyons, Michael Brown, Jerry Reyes and Frederick Tibbetts.
On appeal, the Justice Department argued that the indictments should be reinstated because the fishing rights guaranteed by the treaty belong exclusively to the Leech Lake Band, not to individual members.
“To allow the rights to be enjoyed by the entire community, the band has enacted laws limiting how individual members may exercise those rights,” it continued, and federal enforcement of those laws “does not abrogate any rights that the individual Indians may hold.”
The 8th Circuit disagreed. It rejected the prosecution’s position, saying, “Hunting, fishing, gathering and trapping were essential to the survival and ways of life of Indian tribes throughout North America. Throughout their territory the Chippewa fished, hunted, gathered wild rice and tapped maple trees for sugar.”
In an opinion written by Judge Diana Murphy, the court said that the Chippewas’ historic fishing rights preclude the prosecution because “history suggests that the Chippewa Indians’ exercise of their [traditional hunting and fishing]] rights included selling what they hunted, fished or gathered in order to make a modest living.”
During negotiations for the 1837 treaty “the Chippewa chiefs emphasized the importance of reserving their rights to fish, hunt and gather on the land” — known technically as “usufructuary” rights, the court said. It quoted Ma-ghe-ga-bo, a Chippewa chief, as telling government negotiators, “Of all the country that we grant to you we wish to hold onto a tree where we get a living & to reserve the streams where we drink the waters that give us life.”
In a statement, DNR communications director Chris Niskanen said, “We are disappointed by this decision. These were serious violations involving the illegal and black-market sale of protected fish in northern Minnesota. The DNR takes that illegal activity seriously and Minnesotans certainly care about it.
“We will be working with our tribal partners to encourage them to prosecute tribal members in tribal courts,” Niskanen said.
The government hasn’t decided yet whether to appeal further, according to the Justice Department’s Hornbuckle.
He also said the cases against the other federally indicted defendants are on hold and the government will decide “in the near term” whether to proceed with those prosecutions,
Defense lawyer Engh said attorneys for the Leech Lake Band of Ojibwe weren’t directly involved in the litigation but consulted with the tribal members’ defense team on strategy.