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5 Fish Poaching Indictments Dismissed, Creating Sea of Confusion

By Aditi Mukherji, JD on November 26, 2013 | Last updated on March 21, 2019

A federal judge in Minneapolis recently tossed the indictments of five American Indians arrested in a major fish poaching bust on Indian reservations in northern Minnesota. The judge ruled the men were protected under an 1837 treaty.

But another federal judge in the same district came to the exact opposite conclusion -- even though the case was borne from the same undercover investigation.

The Eighth Circuit may have to get on board, get its feet wet on the issue, and reel in a solution to this extraordinary split.

Legally Fishy

The decision by Judge John Tunheim of Minneapolis to dismiss the indictments appears to directly conflict with rulings made by U.S. District Judge Richard Kyle of St. Paul on Oct. 31, creating a sea of confusion about the law. Critics believe the conflicting fish poaching cases may set sail for the Eighth Circuit Court of Appeals as soon as next year, reports the Star Tribune.

In a motion filed Monday, attorneys for two Red Lake Indians whose indictments were not dismissed by Kyle urged the judge to reconsider his position in light of Tunheim's ruling.

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.

Operation Squarehook

In April, 10 people were indicted in federal court for transporting and selling walleyes illegally from reservations in Minnesota. In addition to the five dismissed Monday by Tunheim, one defendant has pleaded guilty and cases against four are pending.

Charges against 28 other people were filed 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, reports the Tribune.

The poaching ring bust, which involved the U.S. Wildlife Service, the state Department of Natural Resources, and the Leech Lake and Red Lake bands was nicknamed Operation Squarehook.

1837 Treaty v. Lacey Act

Tunheim rejected the findings of U.S. Magistrate Judge Leo Brisbois, who concluded that the men had violated the federal Lacey Act, which makes it illegal to sell or buy fish in violation of any law, including Indian tribal law.

Instead, Tunheim ruled that Article Five of the 1837 Treaty with the Chippewa Indians protected the right of Indian defendants to game and fish on their reservations because Congress "has not specifically abrogated that right." Essentially, he believes the treaty precludes prosecution under federal wildlife protection laws, unless the federal government imposes restrictions that clearly state that the intent is to abolish the treaty rights.

By contrast, Kyle sided with Brisbois who ruled that the treaty rights aren't exclusive but are still subject to federal and tribal regulations. As a result, Kyle let the cases under his purview proceed.

As Richman and Elkins summed it up, "We now have the unseemly situation of five 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."

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