U.S.A. v. Eagleboy, 99-2575

• Decision Date: 16 November 1999
• Docket Number: No. 99-2575,99-2575
• Parties: (8th Cir. 1999) UNITED STATES OF AMERICA, APPELLANT, v. WAYNE EAGLEBOY, APPELLEE. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1137

200 F.3d 1137 (8th Cir. 1999)

UNITED STATES OF AMERICA, APPELLANT, v. WAYNE EAGLEBOY, APPELLEE.

No. 99-2575

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: November 16, 1999

Decided: December 29, 1999

Appeal from the United States District Court for the District of South Dakota.

Before Wollman, Chief Judge, Lay, and Bomwan, Circuit Judges.

Bowman, Circuit Judge.

The District Court granted Wayne Eagleboy's motion to dismiss Count III of a three-count indictment. Count III charges Eagleboy with possessing hawk parts in violation of the Migratory Bird Treaty Act ("MBTA"), 16 U.S.C. § 703 (1994). The United States appeals. This Court has jurisdiction over appeals from the dismissal of an indictment, or any counts of an indictment, pursuant to 18 U.S.C. § 3731 (1994). Our review is de novo. United States v. Nattier, 127 F.3d 655, 657 (8th Cir. 1997).

Eagleboy is not a member of a federally-recognized Indian tribe. If he were, he would not have been charged with a violation of the MBTA, inasmuch as the United States has adopted a policy under which members of federally-recognized Indian tribes may possess migratory bird parts, while non-members may not and may be prosecuted for such possession. Pointing to this policy, Eagleboy moved to dismiss Count III on the ground of selective prosecution based on race. The District Court granted the motion, concluding that the policy of not enforcing the MBTA against members of federally-recognized Indian tribes is unconstitutional because it was not established by statute or regulation.

For reversal, the United States argues that the policy in question rests on the non-racial basis of tribal membership and that the adoption of the policy informally rather than by statute or regulation is irrelevant to the policy's constitutionality. In its arguments, the United States contends that the non-enforcement policy was adopted to carry out the special obligations of trust incumbent on the United States in its relations with federally-recognized Indian tribes; and that the policy was neither motivated by a racially invidious purpose nor does it have a racially discriminatory effect. We agree with the United States on all of these points.

The United States is correct that the non-enforcement policy distinguishes between persons on the basis of membership in a federally-recognized Indian tribe, not on the basis of race. The policy exempts from enforcement of the MBTA's prohibition on possession of migratory bird parts only tribal members.¹ Consequently, persons of Indian descent who are not members of a recognized tribe are not covered by the policy even though the policy covers all persons who are in fact enrolled members of a recognized tribe. To repeat, the criterion is tribal membership, not race. Moreover, special programs and exemptions for members of Indian tribes have long been upheld because of the federal government's special obligations toward Indians.²

This case is quite similar to, and we believe is governed by, United States v. Aanerud, 893 F.2d 956 (8th Cir.), cert. denied, 498 U.S. 822 (1990), in which we upheld the conviction of non-Indian defendants for trapping leeches in a wildlife refuge, even though the Fish and Wildlife Service had adopted an informal policy of not prosecuting members of the White Earth Band of the Minnesota Chippewa for engaging in identical behavior. Against that background, the Court rejected the defendants' assertion of selective prosecution on the basis of race, finding that treaties with the Chippewas guaranteed their right to trap on the land in question. Moreover, the Court noted that "even in the absence of treaty right, the Supreme Court has upheld singling out Native Americans for special treatment. See Morton v. Mancari, 417 U.S. 535, 551 (1974) . . . . This special treatment for Native Americans . . . fully answers the equal protection arguments asserted by appellants." Aanerud 893 F.2d at 962. Aanerud remains good law in this Circuit and is, we believe, dispositive here.

As we see the case, it has a simple answer. Eagleboy has not shown that he has been singled out for prosecution because of his race. Rather, like all other persons who are not members of a recognized Indian tribe, he is subject to prosecution because, not being a member of a federally-recognized tribe, he cannot benefit from the policy of non-enforcement with respect to such tribal members. It matters not to his eligibility for prosecution whether Eagleboy is white, black, yellow, brown, or any other hue; all that matters is that he is not a member of a federally-recognized tribe. Nor has he offered any evidence to show that his prosecution is in any way in fact the product of bias against persons of his race, whatever his race may be. (We note that the opening page of his appellee's brief characterizes Eagleboy as "a Native American artist of Onondaga tribal heritage who is not an enrolled member of the tribe.") In short, his arguments do not support his claim that he was selected for prosecution because of his race. Moreover, even were we to say that the policy is unconstitutional, this would only mean that the United States is not bound by the policy and is free to prosecute tribal members under the MBTA. It would not mean that the United States cannot prosecute Eagleboy for the violation of the MBTA charged in Count III.

Because Eagleboy has not shown that he has been singled out for prosecution under the MBTA on account of his race, but only has shown that members of federally-recognized Indian tribes are not prosecuted in similar circumstances, we are not inclined to think it is necessary to decide whether the informal federal policy of non-prosecution of tribal members is somehow invalid by reason of its informal status. As we...