Stephen Fellegy intentionally caught a walleye out of season to highlight what he said was favorable treatment of the Chippewa.
The Minnesota Court of Appeals on Thursday rejected discrimination claims made by a Minnesota angler who intentionally caught a walleye out of season to protest what he said was favorable treatment of the Chippewa.
In a 16-page ruling, the court declined to hear Stephen Fellegy's claim that his equal protection rights were violated when he was charged and convicted for catching the walleye in Lake Mille Lacs two days before the May 2010 fishing opener.
The ruling is likely to be appealed and could lay the foundation for another protest, Fellegy's attorney said.
Fellegy intentionally caught the fish to protest the off-season netting of game fish in Lake Bemidji by White Earth and Leech Lake Chippewa band members.
Although Lake Bemidji is not within a recognized treaty area, the Chippewa claim that their off-reservation rights are protected by an 1855 treaty. Critics say the Indians weren't prosecuted because Beltrami County, where Lake Bemidji is, wants to avoid long and expensive treaty-rights court battles.
Fellegy, who is white, argued the case against him should be dismissed because his prosecution was based solely on his "skin color and ethnic origin," a violation of his equal protection rights under the U.S. Constitution.
His attorney, Erick Kaardal, asked the Appeals Court for a hearing to make the equal protection claims in hopes of getting a new trial or having the case thrown out.
But his motion for a hearing to make the claims was rejected, partly because of procedural errors made by Fellegy, who was representing himself before the district court.
In the ruling, Judge Kevin Ross wrote that Fellegy's equal protection claims don't apply because he caught his walleye from Mille Lacs in Aitkin County, where the Chippewa may fish under a federal treaty. There is no treaty for them to take fish from Lake Bemidji.
The distinction is important, Ross wrote, because the Chippewa cannot be prosecuted for out-of-season fishing on Mille Lacs due to their treaty rights. That means that they and Fellegy are not "similarly situated."
Moreover, the incidents happened in different jurisdictions.
"Put another way, Fellegy's claim that the Ojibwe avoid prosecution 'solely based on skin color and ethnic origin' is obviously flawed," Ross wrote. "The tribe members avoid prosecution because, based on the Constitution's Supremacy Clause, the tribe's right under its treaty with the United States supersedes the state's authority to prevent its members from taking fish from Lake Mille Lacs."
To Kaardal, Fellegy's attorney, that means you could prove inequitable prosecution if a non-Indian fishes a non-treaty-protected lake at the same time the Chippewa are netting fish there. He said Fellegy's protest could be followed by others, as Indians continue their own protest tactics by fishing out of season at non-reservation lakes.
The goal, Kaardal said, is to encourage equal and fair prosecution of out-of-season fishing.
"The county attorney is saying, 'We don't want to prosecute Native Americans, but we'll prosecute the non-native Americans because it's cheaper to do so,'" he said. "We don't believe that's right."
Abby Simons • 612-673-4921
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