Spearing Court Case April 12, 2012
Supporter
Posted 4/9/2012 12:12 PM (#551873)
Subject: Spearing Court Case April 12, 2012


Steve Fellegy has been pursuing a court case with the goal of establishing equal rights for all fishermen, regardless of race. Steve is making a constitutional argument to contest a fishing out of season ticket he received for fishing during the tribal spearing season on Mille Lacs. For more information, see http://www.casstoday.com/

The case will be heard on April 12, 2012 at the Minnesota Court of Appeals in Courtroom 200. This is a public hearing. YOU can attend. The hearing will begin at 11:45 a.m. The address for the court is below.

MINNESOTA COURT OF APPEALS
Minnesota Judicial Center
25 Rev. Dr. Martin Luther King Jr. Blvd.
St. Paul, Minnesota 55155
(651) 297-1000
Case Number: A111097
In re: State of Minnesota, Respondent, vs. Stephen John Fellegy, Appellant
sworrall
Posted 4/9/2012 12:57 PM (#551886 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 32886


Location: Rhinelander, Wisconsin
I would be interested to see this go all the way to the Supreme Court.
Herb_b
Posted 4/9/2012 12:57 PM (#551887 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 829


Location: Maple Grove, MN
Wait a second, he wants people to have equal protection under the law no matter what race a person is? Good luck with that. Sad to say, but not in the USA and certainly not in MN.
Schuler
Posted 4/9/2012 5:25 PM (#551964 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 1462


Location: Davenport, IA
I see this going...no where. So he broke the law and wants to claim racism?
Johnnie
Posted 4/9/2012 5:55 PM (#551971 - in reply to #551964)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 285


Location: NE Wisconsin
Claim racism.....I think I have heard that before somewhere. Others have played the race card before and won. But I think they were usually of a non white race. It would be unique for a white to win playing the race card. I would think you have a better chance of seeing God.
John Aschenbrenner
Homer
Posted 4/9/2012 6:00 PM (#551973 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 321


I just hope he loses his guide license for breaking the law when he loses, no reason for the Supreme to Court to hear the case, they have already ruled on this topic. This case is not that much different to get a hearing if it goes that far. H

Edited by Homer 4/9/2012 6:07 PM
Pal
Posted 4/9/2012 6:33 PM (#551977 - in reply to #551964)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 665


Location: Twin Cities, MN
No, I believe he wants equal rights applied for everyone that is a citizen of the United States.

If separate but equal was not considered constitutional in Brown vs the Board of Education in 1954, it will be interesting to see how the MN circuit court views the rights of the tribe that were affirmed in a 5-4 decision from the friendly US Supreme Court around 1998. This challenge is from an equality perspective and not just whether their fishing rights were terminated which dominated the original case.

Keep in mind that a couple northern tribes purposely broke the laws regarding fishing regulations a couple years ago to force a review of the 1854 treaty also. Those center around Northern MN fishing rights. He is not the first to use this avenue for change.
sworrall
Posted 4/9/2012 7:23 PM (#551994 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 32886


Location: Rhinelander, Wisconsin
Forgive the obvious question, but the decision by the Circuit Court Judge can only be that Steve broke the law and that's that, or he didn't. IF indeed he didn't, what is the basis? The Tribes were given those rights by treaty, what law has ever been in place that gives those same rights to those outside of Treaty law?

The legal challenge to the arrest has to be only that Steve has the right to harvest that fish and was operating within the law; most certainly it can't be that the folks harvesting fish that same day within their rights were not...can it?

The actions by the tribal members were designed to challenge what they claimed were improper changes made to the law taking what were their rights away, and those challenges came from tribal Government TO State Government. They won pretty much based upon the fact the courts can't MAKE laws, just interpret them.

What am I missing here?

Is there a defense that claims 'if they can, then so should I be able to' regarding treaty law? Or is the challenge that treaty law is unconstitutional ? If the premise is all men are created equal, the premise is pretty likely to fail, as the treaties are with Nations...governments, not individuals. The Government then forms the laws individuals must abide by based upon the written agreement. Right?

Another thing, the laws we abide by like seasons, size limits, legal methods of taking the fish or game, etc., are what prohibits us from spearing a walleye or taking one 'out of season'. The argument certainly can't be that there should be no regulations..right?
Pal
Posted 4/9/2012 8:12 PM (#552009 - in reply to #551994)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 665


Location: Twin Cities, MN
I respectfully disagree with your ascertain "They won pretty much based upon the fact the courts can't MAKE laws, just interpret them." You see judge made laws every day, it is one of the biggest problems in our court system today and our constitution in general, too much judge made law, not enough laws made by our legislative bodies where intended.

That being said, I have to think they are challenging that the treaty is unconstitutional as it gives rights to only certain citizens and not all. Therefore it is not not equal and a violation of our constitution. Could be wrong, but my best guess.

Pal
Pepper
Posted 4/9/2012 8:20 PM (#552012 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 1516


Isn't the law judges make actually case law that is made by how statutes are interpreted and how ever the court rules that is how the staute and other case law is followed from then forward. Normally, District Court decisions are not published and hence are not required to be followed by other judges. Court of Appeals and Supreme Court decisions are published and those decisions are case law which must be followed by other courts.
sworrall
Posted 4/9/2012 8:25 PM (#552014 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 32886


Location: Rhinelander, Wisconsin
"They won pretty much based upon the fact the courts can't MAKE laws, just interpret them."

In that case, it's what happened. Read Justice Thomas's decision for insight, could have gone the other way, but didn't. I bet a circuit court judge won't try to 'rewrite' federal treaty law, but maybe a 'pot stirring ruling' opinion attached to the ruling could occur looking forward to further appeal. This could get really expensive.

Timeline, good study material:
http://www.glifwc.org/minwaajimo/Papers/Legal%20Paper%20-%20DIA.pdf

The first paragraph is what I try to get through to folks every time this comes up.

http://scholar.google.com/scholar_case?case=3624067482770924423&q=1...

206/221 to 226.
Pal
Posted 4/9/2012 8:47 PM (#552025 - in reply to #552014)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 665


Location: Twin Cities, MN
Yes, I agree.

"In that case, it's what happened."

If this case comes up at a different point in history, it could easily go the other way. It was not the first time the tribes rights were reviewed.

O'Connor joining the majority was quite a disappointment, but then it is not the first time she has disappointed.


sworrall
Posted 4/9/2012 8:50 PM (#552026 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 32886


Location: Rhinelander, Wisconsin
IF is the big question. It will take a political environment so different than anything we have seen in 75 years to get any case trying to overturn this decision heard. Would you agree?
Guest
Posted 4/9/2012 9:01 PM (#552033 - in reply to #552014)
Subject: Re: Spearing Court Case April 12, 2012


He is asking the court to interpret the constitutionality of the application of the law. It's a tough row to hoe, but you never know.
Pal
Posted 4/9/2012 9:05 PM (#552034 - in reply to #552026)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 665


Location: Twin Cities, MN
I think it just needs to get to a high enough court, then it is a matter of whether the Supreme Court is willing to review it.

A very tall order there is no doubt, but it would not be the first time it has happened. The court has taken some surprising cases over the years.

I think Steve wants the government to have to start over and force everyone to do their jobs with a new agreement, an even taller order than getting to the supreme court in all honesty. Don't we all need to dream at times though...

Have a nice night.

Pal
Herb_b
Posted 4/11/2012 9:39 AM (#552417 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 829


Location: Maple Grove, MN
I wish Steve well. However, I doubt if it goes any further than the Minnesota appeals court. There would be a slim chance that the MN Supreme court would hear the case and only a remote chance of the Federal court system taking any further appeals. This simply does not involve a violation of a Federal law and the Federal courts have no juristiction in the case.

I believe the main problem with Steve's argument is that the Native Americans have a dual-citizenship status of sorts. They are US citizens, but they are also citizens of their own "nation" and that is where they get the extra "rights" from. Those rights are not granted by the US government based on the constitution but rather based on a treaty between two "nations". And so the constitution does not apply in this case. I expect the courts to say that it isn't fair, but that is how the law reads.
Pal
Posted 4/11/2012 11:01 AM (#552440 - in reply to #552417)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 665


Location: Twin Cities, MN
I disagree, Steve has a good case, it is just a matter of whether he will be heard you are correct.

Per my memory from civics class, treaties are ratified by the Senate and therefore are considered a legislative act by Congress. As a legislative act, it cannot violate the constitution or the legislative branches oath to uphold all parts of our constitution.

Pal
esoxaddict
Posted 4/11/2012 11:17 AM (#552444 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 8781


I'm not sure I understand the situation, but aren't the tribes sovereign nations? They operate under their own laws, and the right to use the resources as they see fit and exactly that - RIGHTS. We don't have the same rights, and we never will. We have priveledges, which we pay for, and the states determine what we are allowed to harvest, based on what the tribes harvest. Seems Mr Fellegy has nothing except a disdain for the law, and is claiming rights to something in a place where we have none. "If they can do it, we can do it..." Well, Mr Fellegy... No, we CAN'T. Your fishing license gives you the priveledge to fish within the laws that your state government puts in place. You can't net and spear and fish out of season. The tribes can, basically because they operate under a different set of laws that were granted to them as rights; rights which were upheld by sthe supreme court.
sworrall
Posted 4/11/2012 11:29 AM (#552450 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 32886


Location: Rhinelander, Wisconsin
Addict,
As listed above, those rights were reserved by the tribes, not granted to them. That's a significant difference when looking at this case.
Homer
Posted 4/11/2012 12:09 PM (#552463 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 321


Only things this case will create is more polarization. H
esoxaddict
Posted 4/11/2012 12:24 PM (#552465 - in reply to #552450)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 8781


sworrall - 4/11/2012 11:29 AM

Addict,
As listed above, those rights were reserved by the tribes, not granted to them. That's a significant difference when looking at this case.


So what does that mean, exactly? "reserved by" as opposed to "granted to"...

Pal
Posted 4/11/2012 12:44 PM (#552470 - in reply to #552465)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 665


Location: Twin Cities, MN
A bit wordy, but I think it means the below

"Rights that tribes reserved for themselves when they were treating with the United States."

Because they retained these rights in their treaties, these are referred to as reserved rights.


Homer
Posted 4/11/2012 12:53 PM (#552473 - in reply to #552465)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 321


esoxaddict - 4/11/2012 12:24 PM

sworrall - 4/11/2012 11:29 AM

Addict,
As listed above, those rights were reserved by the tribes, not granted to them. That's a significant difference when looking at this case.


So what does that mean, exactly? "reserved by" as opposed to "granted to"...



They already had them and decided to keep them. If I let you keep $5 you already had, it was not granted to you. It was already yours. H
sworrall
Posted 4/11/2012 1:31 PM (#552483 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 32886


Location: Rhinelander, Wisconsin
From the link posted above:
'It must be emphasized that these ceded territory rights were not given or granted by the United States, but were reserved by the tribes for themselves.'
dcates
Posted 4/11/2012 1:55 PM (#552490 - in reply to #552450)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 462


Location: Syracuse, Indiana

Tangential issue, but the GOVERNMENT cannot grant rights.  The Constitution LIMITS government.  RIGHTS are granted by our Creator.

Call me a radical! 

Slamr
Posted 4/11/2012 1:59 PM (#552491 - in reply to #552490)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 7038


Location: Northwest Chicago Burbs
dcates - 4/11/2012 1:55 PM

Tangential issue, but the GOVERNMENT cannot grant rights.  The Constitution LIMITS government.  RIGHTS are granted by our Creator.

Call me a radical! 



I am so close to making this a biblical war. But since it's Passover, I will go eat matzo and be happy...
Guest
Posted 4/11/2012 4:20 PM (#552528 - in reply to #551873)
Subject: RE: Spearing Court Case April 12, 2012


I wish he would of went about this differently that could have been a better outcome. For example, take a quick search on YouTube you will find several videos this year and previous years of the natives blatantly breaking the law that applies to them by dumping pike overboard. They are required to count these fish, not by number, but in pounds against a total. Once they harvest that total, whether they reached their walleye quota or not, the harvest must stop for all natives. If its that easy to capture these acts than Steve should have used this to get compliance with the harvest quotas which is clearly not happening now. It would be interesting to see if we could actually achieve compliance with this requirement and then focus on reducing the native harvest quota on pike. Once that number gets squeezed hard enough it may result in inability to achieve the walleye quota or at a minimum eliminate the increases they get on walleye every year.
pjonas
Posted 4/11/2012 4:37 PM (#552533 - in reply to #551873)
Subject: RE: Spearing Court Case April 12, 2012


Steve said: "IF is the big question. It will take a political environment so different than anything we have seen in 75 years to get any case trying to overturn this decision heard. Would you agree?"

Respectfully, no, I would not agree.

The case you link to, Minnesota v Mille Lacs, was a 5-4 opinion, by definition a very close call even in 1999. The makeup of the Court has changed in many important ways since then. Three of the dissenting justices, Scalia, Kennedy and Thomas, are still on the Court today. If a person were to make the (very large) assumption that the two other "conservatives" on the current Court (Roberts and Alito) would see things the same way the three "conservative" dissenters in Mille Lacs who are still on the Court did in 1999, it may well be that the 4 justice dissent from 1999 would be a 5 justice majority in 2012 to overturn certain treaty rights in Minnesota.

I will reinterate my general point on this topic from a few months ago: anyone who offers trite solutions like "they're a nation" or "the treaty says so" (or, for that matter, "we all deserve equal protection") is misunderstanding the nature of the very complicated questions around tribal treaty rights. Politics play a role, as do many technical issues that have little to do with the merits of either side's argument. For an example of this second category, see Lac du Flambeau v Wisconsin, 957 F.2d 515, where a State of Wisconsin attorney missed a deadline to file an appeal, ending the state's federal case opposing an expansion of indian gaming after Wisconsin citizens approved the lottery, thereby guaranteeing for all practical purposes the massive expansion of indian gaming in Wisconsin that has since taken place. For another example, and one that might be pertinent to the case at issue in this thread, check out US v Long, 324 f.3d 475, where the Menomonee tribe of Wisconsin retained jurisdiction over certain limited criminal prosecutions of on-reservation crimes despite having lost that jurisdiction via federal legislative action during the 1950's and 60's. Both very technical holdings that related only tangentially to "treaty" rights.

Bottom line, in my humble opinion: The conversation around treaty rights is far from over, and no argument (including the one at issue in this thread) is foreclosed.
sworrall
Posted 4/11/2012 4:48 PM (#552537 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 32886


Location: Rhinelander, Wisconsin
The case has to get there in the first place. And the Court has to agree to hear it.

I firmly believe the case needs to be brought by the State/States for it to gain any traction, and neither seem in any hurry to upset the apple cart now, especially since the agreement in the nineties that formed fisheries management structure and strategy incorporating GLIFWC's involvement.

This is interesting...

http://legis.wisconsin.gov/lab/reports/10-11highlights.htm
pjonas
Posted 4/11/2012 5:14 PM (#552541 - in reply to #551873)
Subject: RE: Spearing Court Case April 12, 2012


Steve,

I would agree with you only to the extent that states generally have more resources than individuals to pursue cases for years on end through the appelate courts. Beyond that, I don't see any reason why at least four current judges (which I believe is the threshhold to grant cert) wouldn't want to re-hear a case (Minnesota v Mille Lacs) in which three current justices filed a pretty scathing dissent. Plus, the dissent in that case frames the issue in many respects as one regarding "separation of powers" between the Court and the power of the Executive to overturn treaties. Meaty stuff that might enitce the Court to take the case.

Having said that, even the most compelling case has a very small chance of getting heard by the USSC (Obamacare, Bush/Gore, etc excepted), so I would agree that, generally speaking, any given case is unlikely to make it to that level. Still, as in Mega Millions, "Ya can't win if you don't play!!"

And speaking of lotteries... I wasn't offering an opinion as to the propriety of indian gaming, which I infer you may have thought based on the link in your previous post. I was merely giving an example, within the context of treaty rights, of how issues are often decided by things like missed deadlines rather than "big ideas" like Equal Protection or Rights Granted by the Creator. My point is not to point out the obvious complexity of the law, but rather to note the problem with simple answers, like "the treaty says so,", to very complex questions like treaty rights. Even if simple answers were available (as they arguably were in the case of the meaning of the word "lottery" in the 7th Circuit case), one procedural misstep meant game, set, match and "hit me."
sworrall
Posted 4/11/2012 5:18 PM (#552542 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 32886


Location: Rhinelander, Wisconsin
I was pointing to the State revenues from gaming.
pjonas
Posted 4/11/2012 5:27 PM (#552543 - in reply to #551873)
Subject: RE: Spearing Court Case April 12, 2012


Right. I (apparently mis)understood that to be a rebuttal of sorts to a negative perception you perceived me to have about indian gaming. Sorry if that wasn't the case, please ignore that portion of my last diatribe.


tcbetka
Posted 4/12/2012 10:16 PM (#552821 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012




Location: Green Bay, WI
Any news as to how it went today?

TB
Pal
Posted 4/13/2012 6:59 AM (#552841 - in reply to #552821)
Subject: Re: Spearing Court Case April 12, 2012




Posts: 665


Location: Twin Cities, MN
I am pretty sure he went before a 3 judge panel so I am sure it will be at least a little while before we hear any decision especially with the awareness this case could see at higher levels in the courts.
tcbetka
Posted 4/13/2012 8:40 AM (#552858 - in reply to #552841)
Subject: Re: Spearing Court Case April 12, 2012




Location: Green Bay, WI
I see... It will be an interesting decision, for sure.

TB
sworrall
Posted 4/13/2012 9:16 AM (#552868 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 32886


Location: Rhinelander, Wisconsin
Absolutely. Will 'set the temperature' for the future.
Big Muskie Don
Posted 4/13/2012 11:50 AM (#552894 - in reply to #551873)
Subject: RE: Spearing Court Case April 12, 2012


To all who have worked so hard to get our sport to where it is, I thank you! I love fishing muskie's since 1968, and have released every fish since 1988 !!!!!!!!!!! I can tell you that I have lived in the northwoods of Wis. and personally know and have seen what goes on and it is very sad, BUT if we all get behind these few who are trying to change a mind set, and to do it soon as all of our states have less and less money to help stockings, we need numbers and a lot of thought on ways we can put pressure on this issue, so my grand kids some day can enjoy what makes me look forward to moon sets, tornado watches and fall! thanks again for all who are trying! Don
Homer
Posted 4/13/2012 2:07 PM (#552921 - in reply to #552894)
Subject: RE: Spearing Court Case April 12, 2012




Posts: 321


Big Muskie Don - 4/13/2012 11:50 AM

To all who have worked so hard to get our sport to where it is, I thank you! I love fishing muskie's since 1968, and have released every fish since 1988 !!!!!!!!!!! I can tell you that I have lived in the northwoods of Wis. and personally know and have seen what goes on and it is very sad, BUT if we all get behind these few who are trying to change a mind set, and to do it soon as all of our states have less and less money to help stockings, we need numbers and a lot of thought on ways we can put pressure on this issue, so my grand kids some day can enjoy what makes me look forward to moon sets, tornado watches and fall! thanks again for all who are trying! Don


You can be a champion for the fishery without being against the treaties. It is only one side or the for some people. As an American I honor the treaties and bill of rights, it shows we are a respectable people of our word. H
esoxaddict
Posted 4/13/2012 3:01 PM (#552927 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 8781


I don't worry about the treaties as much as I used to. Angler harvest is estimated to be 9-10x what the tribes harvest. If there's a problem with the quality of the fisheries, it's US causing it. I figure the best route is to educate those who would otherwise not release their fish, and those who contribue most to delayed mortality, and do what we can to release our fish safely. And with over 500mil in casino revenue, I don't expect the tribes to spear and net at near the rates they have in the past. There's a lot more money in gambling than there is in selling fish.
tcbetka
Posted 4/13/2012 3:35 PM (#552931 - in reply to #552927)
Subject: Re: Spearing Court Case April 12, 2012




Location: Green Bay, WI
I have no real problem with the concept of Native Americans harvesting fish in their native tradition either. Actually, I think it's a great thing if they teach their children their heritage. And I definitely agree that non-natives can and do have more of an impact on the total *harvest* of gamefish. However that being said, I do have a fundamental problem with WHEN they are harvesting the fish--solely from the standpoint that they are taking the biggest fish they can find, at a time when the fish are spawning. I realize that's the only real time they are going to get access to these fish of course...when they are in the shallows to spawn. And when they started the traditional of spearing, it was purely for subsistence. Taking the largest fish from the fishery back then made more sense--get the most meat with the least amount of energy expended. I get that. Now days though, it seems like something different.

Our government entered into a treaty with the Native Amercians, and it is what it is. I respect it because I am an American, and (when it comes right down to it) we really have no other choice. And I am certainly not going to be out their trying to provoke a confrontation with those exercising their treaty-provided rights. But while I am not an attorney and therefore couldn't tell you what chance anyone would have to reverse the prior agreements made between the two governments--I do believe that the reasons once used to justify spearing, are no longer as relevant. Therefore I would REALLY like to see some sort of arrangement whereby the size of the muskellunge being taken is limited somehow. Maybe allow a few more smaller fish to be taken in exchange for not taking the largest fish that can be found?

With all due respect to the tradition being practiced through spearing--showing a responsibility to the resource by not harvesting the very largest fish at a time when they are spawn-laden, is a very valid way to pass on a tradition of stewardship to the younger generation. And this even more true when 99% of muskellunge caught by hook and line get released by non-native anglers. You really do not need to rely on harvesting muskellunge in this day and age...especially given the concerns for the bioaccumulation of such things as mercury. Who really wants their family consuming that stuff?

So I will certainly be very interested to read about the outcome of this case--not that it will necessarily result in huge changes. But at the very least it might serve as a barometer for how the majority still feel about this issue.

TB
esoxaddict
Posted 4/13/2012 3:45 PM (#552932 - in reply to #551873)
Subject: Re: Spearing Court Case April 12, 2012





Posts: 8781


Well, Tom, that I agree with. And I really question why ANYONE would want to eat a large muskie. Based on all the research on PCB and mercury accumulation, and the advisories of what, no more than one meal a month? Sorry, but if the government says that it's only safe to eat something once a month, I don't think I want to eat it at all!