|
|
| 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
|
|
| |
|
Posts: 32886
Location: Rhinelander, Wisconsin | I would be interested to see this go all the way to the Supreme Court. |
|
| |
|
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. |
|
| |
|
Posts: 1462
Location: Davenport, IA | I see this going...no where. So he broke the law and wants to claim racism? |
|
| |
|
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 |
|
| |
|
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
|
|
| |
|
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. |
|
| |
|
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?
|
|
| |
|
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 |
|
| |
|
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. |
|
| |
|
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. |
|
| |
|
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.
|
|
| |
|
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? |
|
| |
|
| 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. |
|
| |
|
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 |
|
| |
|
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. |
|
| |
|
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 |
|
| |
|
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. |
|
| |
|
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. |
|
| |
|
Posts: 321
| Only things this case will create is more polarization. H |
|
| |
|
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"...
|
|
| |
|
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.
|
|
| |
|
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 |
|
| |
|
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.' |
|
| |
|
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!  |
|
| |
|
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... |
|
| |
|
| 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. |
|
| |
|
| 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. |
|
| |
|
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 |
|
| |
|
| 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." |
|
| |
