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Charges against 5 dismissed in fish poaching case

MINNEAPOLIS (AP) — Indictments against five people accused of poaching walleye and other fish from two northern Minnesota reservations and selling them on the black market were dismissed Monday by a federal judge who said an 1837 treaty with the Chippewa Indians protects their rights to fish on tribal lands.

U.S. District Judge John Tunheim wrote that Congress hasn't abolished fishing rights outlined in the treaty, which guarantees hunting and fishing privileges to tribal members on reservations. As a result, he said, prosecuting the defendants would violate treaty rights.

He also said the rights outlined in the treaty preclude prosecution under federal wildlife protection laws.

The five defendants were among 10 people indicted in federal court in April with transporting and selling fish illegally. Of the remaining defendants, one has pleaded guilty and cases against four are pending.

Dozens of others were charged 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.

Michael Brown, Jerry Reyes and Marc Lyons are members of the Leech Lake Band of Chippewa, while Frederick Tibbetts is a member of White Earth. All are accused of using gill nets to take fish from lakes within the Leech Lake Reservation, then selling those fish for commercial purposes. Some were sold to a restaurant owner in Bena, the indictment said.

The four men argued the charges should be dismissed because, as tribal members, their right to fish is protected.

Tunheim agreed, saying the treaty gives the reservation exclusive jurisdiction over hunting and fishing, and that state fishing and gaming laws don't apply to tribal members on reservation lands. He also said treaties are to be interpreted liberally in favor of American Indians, and as a general matter, tribal members have exclusive treaty rights to hunt and fish on reservations unless those rights are relinquished.

Tunheim said the question here is whether the scope of those privileges includes the right to fish by any method, including netting, and the right to sell the fish.

"The Court is persuaded that the Treaty rights encompass both this method of catch and the sale of the fish, based on the understanding of the Chippewa at the time the Treaty was signed," he wrote. He said nothing in the treaty, brokered at Fort Snelling, restricts the manner of catching fish.

However, Tunheim said while the treaty protects individual rights to net and sell fish, tribes may place restrictions. Congress could enable the federal government to enforce Leech Lake conservation laws, but it has not explicitly done that. The federal government can also impose restrictions, but only when making it clear that the intent is to abolish treaty rights, which isn't the case here, Tunheim wrote.

The fifth man, Larry Good, was accused of taking fish from Red Lake without approval of the Red Lake Fisheries Association. Good raised similar treaty arguments, and his case was also dismissed.

Copyright 2013 The Associated Press.