LBN Tribal Netting Case "PRICELESS"

[Yoda]

Penalties reduced in fishing case

April 23, 2011

By Jenny Lancour - Staff Writer ([email protected]) , Daily Press

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SAULT STE. MARIE - A recent appeals decision in tribal court has reversed or modified sentences against three Rapid River men found guilty of 79 fishing-related violations last year. Details on the court decision have been made available to the Daily Press.

Andrew Schwartz, John Schwartz and Kevin Schwartz - brothers and members of the Sault Ste. Marie Tribe of Chippewa Indians - were sentenced in August by a tribal judge. Each had their right to fish taken away permanently and were ordered to pay $13,175 in fines and costs and $15,214 in restitution.

The three had been ticketed for 105 civil infractions connected to illegal fishing operations on Little Bay de Noc in 2009. The citations were the result of an investigation by the Department of Natural Resources and Environment (DNRE).

In September 2010, about a month after their sentencing, the Schwartzes filed an appeal to the tribal judgement and requested the court's "findings of responsibility, costs, fines, restitution, forfeiture and loss of fishing license be set aside."

After seven months, the appellate court decision was released last week, specifically upholding (sustaining) and ruling against (reversing) parts of the initial judgments made in tribal court.

On April 12, the appellate court ordered the following:

1 - The court ruling the Schwartzes illegally sold fish on Feb. 17, 20 and 23, 2009, was sustained.

2 - The court ruling the Schwartzes illegally sold fish on other days was reversed.

3 - The court ruling the Schwartzes possessed more than 100 pounds of fish on Feb. 17 and 20, 2009, was sustained.

4 - The court ruling the Schwartzes illegally possessed more than 100 pounds of fish on all other days was reversed.

5 - The court ruling the Schwartzes violated the catch report provisions was sustained.

6 - The court ruling the Schwartzes were illegally engaged in subsistence fishing with a non-native was reversed.

7 - The court's forfeiture of four snowmobiles was sustained.

8 - The court's order for $15,214 restitution, representing the economic value of the fish, was reduced to $3,349.

9 - The court's lifetime revocation of the Schwartzes subsistence fishing rights was reduced to a one-year suspension beginning April 12, 2011.

10 - The Schwartzes' due process rights were not violated because their attorney failed to appear at an Oct. 8, 2010, hearing on the fairness of the court's restitution decision.

Appellate judges offered comments on how the DNRE conducted its investigation into the illegal fishing operations.

An investigative concern was that the DNRE would have sought direct evidence rather than indirect or circumstantial evidence, defining direct evidence as evidence that stands on its own merit and defining indirect or circumstantial evidence as evidence that requires certain assumptions.

Concern was also expressed the investigation should have been a joint effort between the DNRE and the Sault Tribe Law Enforcement.

Other individuals cited for violations in connection with the above investigation are brothers Troy Jensen and Wade Jensen, tribally-licensed commercial fishermen, and non-native John Halverson, a state-licensed wholesaler. The three men, from the Garden Peninsula, are each charged with unlawfully conspiring with one another and four others to buy/sell fish taken without a commercial fishing license from 2004-2009 in Delta County.

The Jensens and Halverson are scheduled for a joint trial in Delta County District Court on May 10.

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Jenny Lancour, (906) 786-2021, ext. 143, [email protected]

[Just Hook'n]

Reduced to giving their licenses back in one year . . . that is BS. On the other hand, these guys will be back out on the lake, where they are fair target practice. My advice . . pack extra life jackets.

[steeliebob]

This is a prime example of how profitable poaching can be. They pay pennies on the dollar and are allowed to fish again in a year. I would bet that they go right back at it again with a little more caution this tiome.

[EdB]

I thought the Schwartz's came from Germany.

Wish my great great Grandpa would have married an Indian so I could own a casino and be a super citizen with special rights in the greatest nation in the world.

[Adam Bomb]

That is sad.

[CAC]

Even if they took their fishing licenses away for life you can "bet" they would be out there doing it again in short order. That's what criminals do, they disregard laws. Thanks to the DNRE for at least sending a ripple into the poaching pond.

[sherman51]

you can bet your sweet a## that if it was one of us reguler guys they would have hung us out to dry. i personaly think the laws of this country should be the same for us all. and my dad was half indian. i know we took the land, but loan companies take our land all the time. doesnt give us any privliges. what do you think??

....sherman....

[Rascal Trophy Fishing]

I think you're right Sherman, and so are the other guys. Too bad the tribes are "sovereign nations" unto themselves, and this kind of stuff will go on and on until the status of these tribes is reversed. Don't hold your breath though, it probably will never ever happen now. That's quite the reversal, from lifetime to one year suspension, 10 years or so might have been a lot better alternative, great judge.