Five Minnesota Ojibwe no longer face poaching indictments

A federal judge in Minneapolis on Monday threw out the indictments of five American Indians arrested in a major fish poaching case on Indian reservations in northern Minnesota, saying the men were protected under an 1837 treaty.

The decision by Judge John Tunheim of Minneapolis appears to be directly opposite to rulings by U.S. District Judge Richard Kyle of St. Paul on Oct. 31, creating a legal tangle that will likely keep attorneys and the 8th Circuit Court of Appeals busy well into 2014.

The contradictory decisions were described by several court observers as very unusual.

Former federal prosecutor Paul Murphy, who headed the criminal division of the U.S. attorney's office from 1995 to 2005, said he could not recall two federal justices issuing opposing decisions in the same district and growing out of the same undercover investigation.

"Normally, in related cases, the court assigns all of them to one judge …," Murphy said.

In a strongly worded memorandum filed Monday, attorneys for two Red Lake Indians whose indictments were not dismissed by Kyle — Thomas Sumner, 55, and Brian Holthusen, 48 — appealed to Kyle to reconsider his position in light of Tunheim's "careful analysis."

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.

The five men whose cases were tossed by Tunheim were among 10 indicted on April 9 on charges of buying and selling hundreds of thousands of dollars' worth of walleyes netted from lakes on the Leech Lake, Red Lake and other reservations in Minnesota. Charges against 28 other people were filed in state and tribal courts.

Tunheim ruled that an 1837 Treaty with the Chippewa Indians protected the right of Indian defendants to fish on their reservations and that Congress "has not specifically abrogated that right."

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.

Tunheim's rulings came in two separate decisions, one involving the indictments of Michael Brown, Jerry Reyes, Marc Lyons and Frederick Tibbetts, and the second of Larry Good.

At the time of the indictments, Jim Konrad, enforcement director for the Department of Natural Resources, called it "a very big deal."

While Tunheim ruled in a 24-page decision that Magistrate Brisbois was mistaken in concluding that the Lacey Act should apply to the defendants, Kyle said Brisbois' findings were correct. Kyle wrote a two-page memo endorsing Brisbois' position, which dealt with an assortment of defense motions, not just the Lacey Act.

Brisbois wrote "that the federal regulations governing fishing on Red Lake legitimately limit" the fishing rights of the defendant.

Reaction from lawyers representing clients whose cases were thrown out was predictably positive.

Paul Engh, who represents Marc Lyons, said that "Mr. Lyons is gratified that his right to fish, which he considers sacred, has been vindicated by the court's ruling."

Similarly, attorney Andrew Mohring, who represented two of the other defendants, called Tunheim's decision "a very thoughtful decision and the vindication of the rights of tribal people."

Hemme was charged with aiding and abetting the sale of unlawfully acquired fish. Tunheim wrote that the indictment "is based upon sufficient evidence such that the case must be presented to a jury."

Scott Strouts, Hemme's attorney, said his client was charged with helping to sell walleye caught by Reyes to two undercover conservation officers posing as out-of-state buyers.

"We feel Mr. Hemme cannot be charged with aiding and abetting the purchase or sale of walleyes that were not unlawfully acquired by a Native American," Strouts said.

The investigation, 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.

Besides the federal prosecutions, 21 people were charged in six counties — Beltrami, Cass, Clearwater, Itasca, Pennington and Polk — and 19 cases remain open. There were two guilty pleas in Clearwater County. DNR spokesman Chris Niskanen said his office would have no comment on Tunheim's ruling.

The U.S. attorney's office declined to comment Monday on the impact of the rulings.