U.S. v. Dion
| Decision Date | 20 May 1985 |
| Docket Number | 83-2521,Nos. 83-2353,85-2538,83-2543 and 83-2544,s. 83-2353 |
| Citation | 762 F.2d 674 |
| Parties | UNITED STATES of America, Appellant, v. Dwight DION, Sr., Appellee. UNITED STATES of America, Appellee, v. Asa PRIMEAUX, Sr., Appellant. UNITED STATES of America, Appellee, v. Dwight DION, Sr., Appellant. UNITED STATES of America, Appellee, v. Lyle DION, Appellant. UNITED STATES of America, Appellee, v. Terry Fool BULL, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael Dow, William D. Kenyon and Richard Johnson, Sioux Falls, S.D., for Dion and appellants.
James Kilbourne, Dept. of Justice, Washington, D.C., for United States.
Before HEANEY, JOHN R. GIBSON and FAGG, Circuit Judges.
Dwight Dion, Sr., Lyle Dion, Jr., Asa Primeaux, Sr., and Terry Fool Bull appeal their convictions of "taking" or "selling" eagles and other protected migratory birds or bird parts in violation of the Bald and Golden Eagle Act (BGEA), 16 U.S.C. Secs. 668-668d (1982), the Migratory Bird Treaty Act (MBTA), 16 U.S.C. Secs. 703-711 (1982), and the Endangered Species Act (ESA), 16 U.S.C. Secs. 1531-1543 (1982). As the appeals stood when we first heard oral arguments, the four appellants raised ten issues, one of which was whether, under United States v. White, 508 F.2d 453 (8th Cir.1974), the charges against the Dions should be dismissed. In White, we held that an enrolled member of the Red Lake Band of Chippewa Indians who shot at an eagle within the boundaries of the Red Lake Reservation could not be convicted of "taking" an eagle under section 668 of the BGEA because Congress had not expressly provided that this section abrogated Indian treaty rights to hunt on their reservations.
We certified the treaty issues to the Court en banc which adhered to White, applied it to members of the Yankton Sioux Tribe hunting within the confines of their reservation, and extended White to criminal prosecutions under the ESA. The Court held, however, that White did not extend to "selling" protected birds or their parts or "taking" protected birds or their parts for commercial purposes. 1 Accordingly, the Court affirmed the district court's dismissal of one "taking" count against Dwight Dion, Sr., vacated and remanded for retrial, at the government's option, two "taking" counts against Dion, Sr., and one "taking" count against Lyle Dion and affirmed the remaining eight "selling" counts against Dion, Sr., and one "selling" count against Lyle Dion. The en banc Court noted that Terry Fool Bull and Asa Primeaux, Sr., did not raise the treaty issues on appeal, but that, in any event, White was not applicable to their cases because their allegedly criminal acts were not committed on land reserved to an Indian tribe of which they were members. The en banc Court then remanded the appeals of the Dions, Fool Bull and Primeaux, Sr., to this panel to determine the remaining nontreaty issues. 752 F.2d 1261 (8th Cir.1985) Before turning to an examination of the issues, we set forth the significant facts which relate to all four appellants.
These cases involve criminal prosecutions which arose from a United States Fish and Wildlife Service (FWS) undercover operation ("Operation Eagle") conducted in South Dakota from February 25, 1981, to June 15, 1983, to investigate the killing and selling of eagles and other protected birds. The government claims that it first learned of possible killing of protected birds in South Dakota in 1978 when FWS agent John L. Cooper received reports that "an excess number of birds were being picked up" around the Yankton Sioux Reservation near Lake Andes, South Dakota. 2 Agent Cooper began an investigation to determine if individuals were violating federal wildlife laws and, in 1980, "actively" assigned an agent to do investigation in the area. In 1980, a Navaho medicine man in New Mexico told FWS agents that Indian crafts made with protected bird parts were arriving from South Dakota for sale in New Mexico. The medicine man gave FWS agent Nando Mauldin the names of the five alleged suppliers in the Lake Andes area of South Dakota. Shortly thereafter, "Operation Eagle" began.
Mauldin sent letters to the five alleged suppliers from the Lake Andes area advising them that he "was a trader in the Southwest part of the United States * * * interested in obtaining Indian-made items for resale throughout the Southwest." In the fall of 1980, he received a response from Joe Abdo of Lake Andes inviting him to South Dakota and indicating that Abdo and several other individuals would sell eagle feathers to Mauldin. Mauldin traveled to South Dakota to meet Abdo, and on February 25, 1981, was introduced to several Indians who traded in Indian crafts, including Asa Primeaux, Sr., and Dwight Dion, Sr. Mauldin claimed that his fictitious company, Night Hawk Trading Company, would pay "top dollar" for Indian handcrafts made from eagle or other protected bird feathers, or for parts of protected birds. On that day, Mauldin passed out approximately $2,000 in cash for several fans and other Indian crafts made from protected bird feathers and handed out several business cards.
Over the next year and a half, Mauldin visited the Yankton Reservation area several times and apparently paid several thousand dollars to a number of Indians, including appellants Asa Primeaux, Sr., and Dwight Dion, Sr., for Indian fans made from protected bird feathers, and for various protected bird feathers and parts. Mauldin passed out more business cards, and his willingness to pay handsomely for crafts made from protected bird parts or for the parts alone became well-known in the area. By August of 1982, the government had compiled substantial evidence of trafficking in protected bird parts against several Indians, including Dion, Sr., and Primeaux, Sr. Rather than prosecuting these individuals, who proved to be the main actors in the protected bird and feather trade, the government expanded "Operation Eagle" in August, 1982, by assigning a second agent, Robert Standish, to the undercover operation.
Standish made several visits to the Yankton Reservation, and represented himself as an Indian art dealer and owner of a gallery. During the late summer and fall of 1982, he and Mauldin passed out more business cards on the Reservation and paid out more money to several Indians including Primeaux, Sr., for Indian crafts made from protected bird feathers and parts, and for the feathers and parts themselves. The agents also offered several hundred dollars for each whole protected bird.
Word spread throughout the Yankton Reservation that Mauldin and Standish were paying thousands of dollars in cash for protected bird artifacts, feathers, parts and whole birds. This reservation is located in a remote and desolate area of South Dakota, and is one of the most impoverished areas in the nation. The 1980 census reports that the 1979 per capita income on the Yankton Sioux Reservation was less than $2,500, and more than half of all families on the Reservation were below the poverty level. Nearly a third of all persons on the Reservation, including two of the appellants in this case, Terry Fool Bull and Asa Primeaux, Sr., report Lakota as their primary language.
In December of 1982, nearly two years after Operation Eagle began, the agents purchased their first whole protected birds when they gave Dion, Sr., $2,300 for the carcasses of four eagles. At this time, the agents also made their first and only transaction with Lyle Dion, Jr., when they purchased an eagle tail and then the rest of the eagle from him.
The agents still made no arrests, however, and over the next several months paid several thousand more dollars to Dwight Dion, Sr., for an additional four bird carcasses, to Asa Primeaux, Sr., for three bird carcasses, and in their first and only transaction, to Terry Fool Bull, Asa's son-in-law, for an eagle carcass.
The Dions, Primeaux, Sr., and Fool Bull were subsequently tried, convicted and sentenced to prison. We turn now to the contentions of each appellant.
Dwight Dion, Sr., was convicted of ten counts of violating the BGEA, the ESA and the MBTA. The specific sections violated are set forth in detail in the en banc decision of this Court which vacated and remanded two of Dion, Sr.,'s ten counts. Dion, Sr., now raises four arguments why all ten counts, or at least certain of the counts, should be dismissed outright.
Dion, Sr., first contends that his conviction for "taking" and "selling" eagles and other migratory birds under the BGEA, the ESA and the MBTA violates his first amendment right of religious freedom. He also notes that 42 U.S.C. Sec. 1996 (1982) provides that "it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian * * * including but not limited to * * * possession of sacred objects[.]" Additionally, Public Law 95-341, which enacted 42 U.S.C. Sec. 1996, provides in part that "laws designed for such worthwhile purposes as conservation and preservation of natural species * * * were never intended to relate to Indian religious practices" or to "prohibit the use and possession of sacred objects necessary to the exercise of religious rites and ceremonies[.]"
The district court found that it "is clear from the record herein that possession and transportation of eagle feathers and parts of eagles are integral parts of Indian religious practices." However, the court noted that Indians can acquire eagles and eagle parts from a government depository in Pocatello, Idaho, and thus, there is no need for Indians to kill eagles for religious purposes. Dion, Sr., contends that making Indian artwork from protected feathers is a part of his religious culture and that unless he can make and sell these items, he...
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