my name is alan brave under on behalf of the united states of america if i may i'd like to reserve five minutes for a bottle the united states appeals from an order of the honorable judge john to home of the district of minnesota dismissing the federal lacey act charges against the defendants or on lawfully transporting and selling game fish mostly walleye taken from lakes within the leech lake indian reservation in northern minnesota in violation of the laws of leech lake band of chippewa indians the district court dismissed the indictments on the mistaken basis defendants had individual treaty rights to take and sell the fish the district courts dismissal portrays a deep misunderstanding of the basis in nature of the rights at issue as well as a fundamental misunderstanding of the lacie act by way of background the lacie act is an anti trafficking statute that prohibits the introduction of contraband fish or wildlife or plants into the stream of commerce the prohibited acts in the lacie act or the import export transport sale  purchase receipt of contraband fish or wildlife within the jurisdiction of the united states of america the lacey act of finds contraband by reference to the law of the nation state or tribe where the fish or wildlife was originally taken or possessed in other words if fish or wildlife is taken or possessed in violation of the law of its place of origin then the lacy act prohibits that fish and wildlife from being imported exploited transported sold purchased within the united states of america right well if the defendants had a treaty right to take that then the fish would not be contraband and there would not be an lacey act violation to do transact in and that particular fish these defendants however do not have a treaty right to take the fish that they took the treaty rights at issue did not belong to these particular defendants the treaty rights issue or tribal rights they belong to the tribal community as a whole and because they are collective rights they are subject to limitation and regulate what nation says the only trouble right the language for personal uses but in order to preserve the resource for subsistence purposes the band prohibits its members from using gill nets for commercial purposes and that is what the defendants are accused of doing here taking fish by net for commercial purposes in violation of the laws of the leech lake band shouldn't be up to the band to enforce the law while the band certainly has the right to enforce the travel laws but what the lacey act does is it's an anti trafficking statute so if fish or wildlife is taken in violation of the law of a foreign state of a american state or a tribe what the lasik does is prohibit that fish and wildlife from being introduced into the purposes but the defendants committed a separate crime by then transporting that fish off a leech like indian reservation and selling that fish on the black market throughout minnesota within the jurisdiction of the united states that's a separate federal crime that's not a violation of  they took the fish off the reservation and they sold it throughout minnesota but mostly to non indian buyers would it be a different situation if the sold it all of the fish were sold sold on reservation  don't think it would legally make a difference factually of course that's a fact that is i think beneficial to the government in this case but it would still be a sale within the jurisdiction of the united states and would still be a violation of the lacey act but in this case the defendants did take the fish off e the right belongs to the sovereign which like bad it belongs to the community as a whole that's not to say that individual members of the tribe cannot assert the right in core proceedings they certainly may but the right that they may assert as one of an individual of the community it's part of a tribal right to hunt and to fish and because the late the leech lake band here has defined the trouble fishing right to exclude taking fish for commercial purposes by guild that the defendants do not have the right does not abrogate travel rights the lacey act plainly states in the text it doesn't diminish travel rights what the lacie act does is supplement travel fishing rights by providing an additional force an unfortunate mechanism for conduct that the tribes regulation the bans regulations already prohibit it the lasix supports travel laws and concerns travel resources by providing federal penalties to those who attempt to access u s commercial markets in order to profit from understand how that works here poachers do not generally respect territorial boundaries whether they are international borders or the borders of an indian reservation poachers will attempt to sell their list of products wherever buyers of those products may be found by making it a federal criminal offense to import export transport sell or purchase on lawful fish or wildlife within the jurisdiction of the united states the lacie act has supported american states and the the resource management responsibilities of indian tribes and in doing so it plays to tribal laws and tribal resources on equal footing with the laws and natural resources of the state and form governments that the lacie act had long support supports trouble rights and concerns trouble resources by helping to ensure that fish remain in reservation lakes so that the tribes exercise of its exclusive authority has some real meaning i wonder if it's support here the federal the methods of fishing who may fish and buy what method that is not what the lacy act is the lease act is again and i trafficking statute the penalties are more serious because dealing commercially in contraband fish and wildlife is a serious offense and it cannot be handled at the state or tribal level it needs to be handled at the federal level the defendants are facing federal indictment while others are facing state charges because these are the most culpable they are the ones for that are responsible for the resource damage they are the ones trafficking and the unlawful taking of fish and wildlife now despite what the defendants might have this court will leave the dispute is not about the rights held by the leech lake bad the united states agrees that leech like band has fishing rights on its reservation the united states agrees that the leech lake band has the exclusive right to regulate fishing  on the reservation exclusive that of the state of minnesota but the fact that the band has these rights does donkey of these defendants the right to violate the law the defendants don't have any right to take fish in violation of the laws of the lease like band and they don't have the right to then transport that fish off the reservation and sell that fish on the black market within the jurisdiction of the united states the fact that the leech lake band has an exclusive right to regulate fishing does not provide any assistance to these defendants even given the exclusivity of the band's rights which again the united states doesn't dispute where the band itself has limited the right to preclude to defend its conduct there's no conflict between the lacy act and the bands rights just because these defendants are facing criminal penalties doesn't mean the band's rights have been diminished in any way by prosecuting the defendants for unlawfully transporting and selling contraband fish within the jurisdiction of the united states has yes has regulated by prohibiting commercial fishing by gill that the band's regulations are clear and then one that and the band still retains the ability to prosecute for that violation but then when the defendants took the fish that's it was taken on lawfully on the reservation took the fish author reservation and then sold that fish on the black market within the jurisdiction of the united states that was a separate federal offense and the united states most definitely has an that they have a legal right to sell contraband in the united states is highly counterintuitive it is legally erroneous for the reasons stated in our briefs and here today the district court erred in accepting the defendant's position and in dismissing the indictments over the considered recommendations of the magistrate judge here and of judge cottle in a related case the district court should be reversed the indictments should be the court palling on behalf of the indian defendants this court and many other courts have been down this road before these issues have been litigated by reasoned counsel for decades and a compromise has been the arranged by the united states and the tribe as to how to enforce indian tribal rights by individual indians under the eight hundred thirty seven treaty to hunt and fish and selfish and use nuts to sell fish judge devant in one nine hundred seventy one in the hearst hurts decision have they have a right i think the analysis is that my brother a lawyer uses is wrong you have to start is do they have a right to do this under the treaties or is it an individual right and then the analysis is does the tribe have an exclusive right to regulate hunting and fishing and then finally the remedy for a violation of tribal rights is not the lazy act those are the four steps of analysis that judge tonight i'm used in our correct so what i would suggest the court do is start with do they have an indian right under the eight hundred thirty seven treaty to hunt fish and net and sell commercially and we don't have to guess about hold that the right under the treaty is to sell fish and not fish and sell it commercially so as a predicate for the whole case here these four individuals had a right to do it a treaty the second question is do they have an individual right or is it the tribal right that's been decided in their favor to we disagree completely with our colleague here in dion united states versus dion footnote for settling the dispute and it said page three eighty one and the high court so this they reserve the rights however to every individual indian as though named in the treaty doesn't s federal settlement called the hurt purpose to corner the herbst consent agreements in our appendix and this agreement was drafted in part by judge renner who was then the united states attorney who took the position that the indians had exclusive right over lease lake and in the agreement they said we have to have some mechanism to enforce this so that the conservation principles that we all have we don't want to fish out lakes we have to have some kind of method to say that if an individual indian violates or nets too much fish we have to have some kind of penalty and so this agreement is ingenious because not only it sets up the tribal code which is an issue here but it forstmann provisions and the kicker for the state is that if they find minnesota finds that the indians are abusing their natural resource they cut the funding out of the agreement into those d if if there is a violation of the fishing tribal code and the state is upset about they withhold the fun and as a practical matter they've never done that because there's no overfishing in leech lake there's a footnote in their brief about y they promised that the leech lake indian tribal court has exclusive jurisdiction or release lake indians it is a promise by the government that they want to reach now  trying to put these poor guys i wish we could bring them here so you could see them these poor guys who were at the end of their lives trying to fish a few walleyes for themselves into prison when we have an agreement in this case not to do  this i mean you could take the same position that they're taking here every day in the lax way where there is netting under an agreement by the government where  basis so what they're doing is fundamentally wrong they do what they're doing isn't what they promise not to do you know yeah yeah so that's the argument seems to be well it's not about taking the fish it's about selling the fish i mean the predicate of the offense is something that's protected at least under a treaty right and is in the exclusive jurisdiction of the tribal co to indict people because you can't do this by yourself there's an inherent condescension in the prosecution in this case that i mean gun offenses are typically state offenses to the federal government hands up prosecuting those all the time well in europe you have less of it but it happens yeah but that's a different animal altogether i mean the possession of felon in possession of firearms you murray reach that decision but this is a fishing this is a a way of living do so where where does the treaty give an individual right to take fish violation of tribal law and sell well he they don't they the treaty doesn't do that it has a it gives the individual a right of commercial fishing but it also gives the tribe by inference here and by agreement with the government to moderate and control that behavior so the individual has a right and subject to the tribal control i mean there's got to be some kind of control here and some kind of agreement on how to moderate the resources of minnesota and we reach these agreements and so that that's how that's how the dynamic was in the one nine hundred seventy one how do we make sure we don't come to court like this how many how do we make sure that someone who errors and fishes when they shouldn't gets disciplined but still preserves the tribal integrity and that's what we usually was never a tribal prosecution and this can all and i submit to you that the only the only person the only entity that can find a tribal violation should be the tri i mean they're the experts of tribal law there are defenses to these allegations in the tribal court they have defenses if they wish to be prosecuted there are the anomalous thing about this whole square hook prosecution is that many people are prosecuted in and in the tribal court and to get back to your question judge they're getting fifty dollars phone or hundred dollar fines specifically where can we find what you were suggesting was a promise not by the federal government not to prosecute these kind  that the the parties figured out that if there is a dispute about fishing rights on leech lake the minnesotan the federal folks can agree there is an arbitration clause just like there isn't real estate and everything else so that the parties agree to arbitrate fishing violations or arbitrate any issues they can't be resolved in the ordinary course of tribal court so as ingenious it was a fantastic agreement yes it does but it also it also has great language and here they were prescient the the fellow who drafted this was magistrate now then magistrate well he became a magistrate bernie becker he was the expert in india law for for many years so so that's that's what's happening in leech lake and has been happening for forty years and one can't go fishing in leech lake without somehow referring to the herbst agreement and understanding why this compromise was was  so that's what's wrong with the the opinion judge to my was absolutely right there was a right to fish and hunt it's never been abrogated it's a tribal court issue by agreement with the united states and had we tried the case by the way we went through all these files from forty years ago and we were going to introduce every u s united states attorney signature that permitted hunting and fishing and sale of fish on leech lake as an admission of a party opponent i might add one more thing and then i'll all rust the united states has taken not only a different position in the assert that these tribal rights to commercially fish and selfish were uphill and so we have this this whole governmental flip flop if you will and i don't mean to be denigrating is they that they have flip flopped all between what their positions were in seventy one and ninety four ninety seven and even the supreme court and what their position is today and it is deeply disturbing to the tribe in these fo thank you as i as i understand consul his entire case now rests on the herbst agreement i urge the court if it has not already to read the herbst agreement it does not say what the state the relationship between tribal law and state law and how that travelogues state law shall be applied against tribal members and non tribal members it doesn't discuss the role of the federal government or federal law at all again i would urge the court to go t agreement settled the herbst litigation there was two different cases there was the beach lake band versus the state of minnesota where the state of minnesota was trying to regulate fishing on the lease like reservation the beach like band said no we have the exclusive right the united states filed a separate case on behalf of the leech lake band against the state of minnesota saying state of minnesota the leech lake band has the exclusive right to regulate fishing on its reservation you do not the herbst agreement was a resolution of that of that dispute now again the united states agrees that it as it has always agreed that the leech lake band has the exclusive right to regulate fishing on on its reservation but even given the exclusivity of the bands rights the fact that the band has limited its members fishing rights by not allowing them to use gill nets for commercial purposes because of that there's no conflict between the lacey act and the band's rights again just because these defendants are facing criminal penalties doesn't mean the band's rights have been affected where the united states is prosecuting the defendants for transporting and selling contraband fish walleye on lakes in northern minnesota so it was initiated by the state you know our waiter at the u s fish and wildlife service joined the investigation and also by the way before the united states  indicted these individuals the lease like band was brought in and informed of the of the prosecutions potential prosecutions with regard to counsel's claims regarding the lax the indian reservation for the exclusively use of the sovereign leech lake band just as any sovereign has the right to control resources are within its borders so too does the leech lake bad it's a sovereign right that along in no way relevant here and alas the court has any additional questions for me ok thank you