U.S. v. Dion

• Decision Date: 09 January 1985
• Docket Number: 83-2538,Nos. 83-2353,83-2543 and 83-2544,83-2521,s. 83-2353
• Parties: 15 Envtl. L. Rep. 20,093 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

Page 1261

752 F.2d 1261

15 Envtl. L. Rep. 20,093

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.

Nos. 83-2353, 83-2521, 83-2538, 83-2543 and 83-2544.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1984.

Decided Jan. 9, 1985.

James Kilbourne (argued), Claire L. McGuire, Justice Dept., Washington, D.C., and Bonnie P. Ulrich, Asst. U.S. Atty., Sioux Falls, S.D., for the U.S.

Michael Dow, William Kenyon and Richard Johnson (all argued), John N. Gridley, II, Sioux Falls, S.D., for defendants.

Before HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON,

FAGG, and BOWMAN, Circuit Judges, en banc. ^*

ROSS, Circuit Judge.

From February 25, 1981, to June 15, 1983, agents for the United States Fish and Wildlife Service conducted an undercover operation ("Operation Eagle") in South Dakota to investigate the killing and selling of bald and golden eagles and other protected birds. Posing as traders and collectors, the agents purchased the carcasses and parts of such birds from a number of tribal Indians, including the defendants in this appeal. The defendants were subsequently charged, in separate indictments, with taking and selling bald and golden eagles and other protected birds in violation of the Eagle Protection Act, 16 U.S.C. Secs. 668-668d (1982), the Migratory Bird Treaty Act, 16 U.S.C. Secs. 703-711 (1982), and the Endangered Species Act, 16 U.S.C. Secs. 1531-1543 (1982).

Relying upon this court's decision in United States v. White, 508 F.2d 453 (8th Cir.1974), the district court ¹ dismissed count 12 of the indictment against Dwight Dion, Sr., which charged him with taking ² an eagle in violation of the Eagle Protection Act, since the taking occurred on the Yankton Sioux Reservation. The court refused, however, to grant motions to dismiss the remaining charges against Dwight Dion, Sr., or the charges against Lyle Dion.

A jury then convicted defendant Dwight Dion, Sr., of violating 16 U.S.C. Sec. 668(a) (1982) of the Eagle Protection Act by offering for sale or selling parts of bald eagles (in the form of fans) (counts 3 and 5), violating 16 U.S.C. Secs. 703 and 707 (1982) of the Migratory Bird Treaty Act by offering for sale or selling feathers of scissor-tailed flycatchers (in the form of fans) (counts 9, 11, and 14), selling seven bald eagle carcasses, and one golden eagle carcass (count 13), and violating 16 U.S.C. Secs. 1538(a)(1)(B) and 1540(b)(1) (1982) of the Endangered Species Act by taking ³ four bald eagles (counts 8 and 10). Defendant Lyle Dion was convicted of violating 16 U.S.C. Secs. 1538(a)(1)(B) and 1540(b)(1) (1982) of the Endangered Species Act by taking a bald eagle (count 1) and violating 16 U.S.C. Secs. 703 and 707 (1982) of the Migratory Bird Treaty Act by offering for sale or selling a bald eagle (count 2).

The government appeals the dismissal of count 12 of the indictment against Dwight Dion, Sr., pursuant to the provisions of 18 U.S.C. Sec. 3731 (1982), arguing that White should be overruled. Two of the defendants on this appeal, ⁴ Dwight Dion, Sr., and Lyle Dion (father and son), argue that White should be extended to shield them from criminal liability for all the charges against them. ⁵

We shall continue to adhere to the narrow holding of White and we extend its reasoning to the Endangered Species Act. At the same time, however, we limit its reach, under the facts of this case, to noncommercial transactions.

I. White Holding

In White, this court concluded that [T]he Red Lake Band of Chippewa Indians enjoy a right to hunt on the Red Lake Reservation and * * * this right has been implicitly recognized in treaties negotiated by that band and the United States. To affect those rights, then, by 16 U.S.C. Sec. 668 [the Eagle Protection Act], it was incumbent upon Congress to expressly abrogate or modify the spirit of the relationship between the United States and Red Lake Chippewa Indians on their native reservation. We do not believe it has done so.

United States v. White, supra, 508 F.2d at 457-58. Accordingly, we held that an enrolled member of the Red Lake Band of Chippewa Indians who shot at a bald eagle within the confines of the Red Lake Reservation could not be convicted of taking an eagle in violation of the Eagle Protection Act.

In applying the treaty defense established in White, it must first be determined whether the defendants were acting within the scope of a treaty right. If so, it must then be determined whether the treaty right has been abrogated.

II. Treaty Rights

In 1858, the Yankton Sioux and the United States negotiated a treaty ⁶ in which the Yankton Sioux ceded and relinquished to the United States all lands claimed by the tribe except for a four hundred thousand acre tract of land. ⁷ This land was reserved for their occupation and is now known as the Yankton Sioux Reservation.

Defendants Dwight Dion, Sr., and Lyle Dion are enrolled members of the Yankton Sioux Tribe. They assert that all of the criminal acts alleged in their indictments were committed on the Yankton Sioux Reservation and that, pursuant to the decision in White, they possessed a treaty right to hunt and sell the birds free from threat of criminal liability.

A. Principles of Construction

Distinctive principles of construction have been developed for the purpose of interpreting the scope of Indian treaties, partially due to the United States' "superior negotiating skills and superior knowledge of the language in which * * * [treaties were] recorded, * * *." Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658, 675-76, 99 S.Ct. 3055, 3069, 61 L.Ed.2d 823 (1979). See F. Cohen, Handbook of Federal Indian Law 222 (1982 ed.) (hereinafter cited as Cohen). These principles have been summarized as follows: "In construing Indian treaties, the courts have required that treaties be liberally construed to favor Indians, that ambiguous expressions in treaties must be resolved in favor of the Indians, and that treaties should be construed as the Indians would have understood them." Cohen, supra, at 222 (citations omitted). The Ninth Circuit developed the latter principle in United States v. Top Sky, 547 F.2d 486 (9th Cir.1976) as follows:

The treaty is to be construed as the Indians would have understood it, Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 [90 S.Ct. 1328, 1334, 25 L.Ed.2d 615] (1970); United States v. Shoshone Tribe, 304 U.S. 111, 116 [58 S.Ct. 794, 797, 82 L.Ed. 1213] (1938), as disclosed by the practices and customs of the Indians at the time the treaty was negotiated, Kimball v. Callahan, 493 F.2d 564, 566 (9th Cir.1974); Moore v. United States, 157 F.2d 760, 762-63 (9th Cir.1946), and by the history of the treaty, the negotiations that preceded it, and the practical construction given the treaty by the parties, Skokomish Indian Tribe v. France, 320 F.2d 205, 207-08 (9th Cir.1963), quoting Choctaw Nation v. United States, 318 U.S. 423, 431-32 [63 S.Ct. 672, 677-78, 87 L.Ed. 877] (1943). In sum, the treaty is to be interpreted to attain the reasonable expectations of the Indians. Wilkinson & Volkman, Judicial Review of Indian Treaty Abrogation, 63 Calif.L.Rev. 601, 617-18 (1975).

Id. at 487.

B. Right to Hunt

Although the Yankton Sioux treaty is silent as to on-reservation hunting rights, the following statement in White makes it clear that such rights exist:

"An examination of the various treaties between the United States and the Chippewa Indians discloses that while the right in the Indians to hunt and fish on ceded lands was reserved in some of the earlier treaties ⁸ * * *, no reservation of the right to hunt and fish was made with respect to the unceded lands of the Red Lake Reservation. But such a reservation was not necessary to preserve the right on the lands reserved or retained in Indian ownership. The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right, which was 'not much less necessary to the existence of the Indians than the atmosphere they breathed' remained in them unless granted away." United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905).

United States v. White, supra, 508 F.2d at 457 (emphasis added) (quoting F. Cohen, Handbook of Federal Indian Law 496-97 (2d ed. 1958)). White clearly establishes that the Yankton Sioux Indians would have understood the treaty as reserving in them the right to hunt eagles on their reservation, at least for traditional purposes. ⁹

C. Right to Sell

In United States v. Top Sky, supra, 547 F.2d 486, the Ninth Circuit upheld an Indian's conviction for selling eagle feathers on the ground that his treaty rights as a Chippewa-Cree Indian did not extend to the commercial sale of eagles. No expectation of a treaty right to sell eagles existed, since there was no historical evidence of a practice of selling eagle parts and since such a practice was deplored as a matter of tribal custom and religion. Id. at 487-88.

The defendants in this appeal presented no historical evidence of a Yankton Sioux practice of selling parts or carcasses of eagles or scissor-tailed flycatchers. In fact, like Top Sky, the record discloses that the sale of eagle parts is deplored as a matter of tribal custom and religion. We find that the Yankton Sioux would not have understood the treaty as reserving in them a right to sell eagles or scissor-tailed flycatchers. Accordingly, the defendants do not have a treaty right to sell such birds. ¹⁰

D. Right to Engage in Commercial Taking

Since the Yankton Sioux lacked any understanding that they had a treaty right to sell eagles commercially, it follows that th...