Anderson: Is discrimination working in reverse for outdoors violations?

  • Article by: DENNIS ANDERSON , Star Tribune
  • Updated: April 13, 2012 - 6:41 AM

Some are out to prove that the playing field is not level when it comes to who is prosecuted and who isn't for outdoors violations.

Steve Fellegy intentionally caught a walleye out of season on Lake Mille Lacs in May of 2010 to illustrate inequality in enforcement of fishing regulations.

On Thursday in St. Paul, a three-judge panel of the Minnesota Court of Appeals convened to hear arguments in the case of state of Minnesota vs. Stephen John Fellegy. Twenty or so people showed up to watch, some perhaps waiting for a Perry Mason moment in which right would be clearly distilled from wrong, and justice served, as if from a drive-through window. That didn't happen.

Occurring instead was lively bantering between Judge Kevin Ross and, separately, assistant Aitkin County attorney Ben Smith and Fellegy's lawyer, Erick Kaardal.

No one debated the fundamental facts of the crime for which Fellegy had been charged: taking a walleye out of season from Lake Mille Lacs.

In fact, Fellegy, who is white, did so intentionally in May 2010 before the summer fishing season began, and made no secret of it.

His goal was to be cited by Department of Natural Resources conservation officers approximately simultaneous to the netting of game fish in Lake Bemidji, in Beltrami County, by White Earth and Leech Lake Chippewa band members.

Lake Bemidji is not within a recognized treaty area, and the Chippewa planned their netting with considerable advance publicity, wanting to proclaim what they believe are their off-reservation hunting, fishing, timbering, mining and other resource rights throughout much of northern Minnesota, guaranteed by an 1855 treaty.

Those rights, the Chippewa say, can be exercised largely free of state oversight.

Fellegy's rogue walleye catch was intended to demonstrate that while he was likely to be prosecuted for his crime -- which he was -- the Chippewa, because they are Indian, just as likely would not be prosecuted for fishing off their reservation.

Which they weren't.

Why not? Because Beltrami County, it's widely assumed, didn't want, and can't afford, a lengthy treaty-rights battle unless the state of Minnesota, in the form of the attorney general's office, picks up the tab.

Which it so far has declined to do, perhaps equally for political and legal reasons.

Thus Fellegy's defense, made originally on his own behalf in district court, was that the case against him should be dismissed because his prosecution was based solely on his "skin color and ethnic origin."

Therefore, he believes, he was selectively prosecuted, denying him due process and equal protection under the U.S. Constitution.

But Kaardal, who was hired belatedly by Fellegy, didn't get to present evidence to that effect in the lower court, because, that court said, various procedural errors were made while Fellegy represented himself.

That the court of appeals was willing to hear Fellegy's case perhaps supports his lawyer's assertion that his client's claims of constitutional protection are too important to dismiss easily.

But Ross, the appeals court judge, probed for weaknesses in this argument, asking Kaardal if it wouldn't take "more than a single isolated incident of prosecution and a single isolated incident of non-prosecution in another county to prove discrimination."

"The bottom line,'' Kaardal said after the hearing, "is that we believe the state can be held responsible for this kind of treatment. Hennepin County didn't prosecute a similar case of an Indian, and there likely will be other such cases of non-prosecution in the future, while non-Indians are prosecuted for the same or similar crimes.

"We think a clear pattern of selective prosecution by these county attorneys will emerge."

Perhaps. But what is the best Kaardal can hope for in Fellegy's case?

That his client will get a new trial in the lower court? If so, he could be convicted -- again.

It's also possible Fellegy could prevail at a retrial, or even have his case dropped. If the latter occurs, an unintended consequence might be that enforcement by the DNR of out-of-season angling laws and regulations on Mille Lacs and other Minnesota waters would be imperiled.

Unlikely as the outcome might be, it would put non-Indian sport anglers on Mille Lacs in April, during the walleye spawn, a time when Chippewa netters from other bands are exercising treaty rights affirmed on the big lake by the U.S. Supreme Court in 1999.

It's always possible as well that the attorney general's office someday will decide to prosecute off-reservation Indian netters as aggressively as non- Indian anglers.

Which ultimately would spawn a legal battle whose duration could rival Perry Mason's nine-year run on TV, and settle once and for all just who controls the resources in question.

Dennis Anderson • danderson@startribune.com

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