U.S. v. Fryberg

• Decision Date: 07 July 1980
• Docket Number: No. 79-1488,79-1488
• Citation: 622 F.2d 1010
• Parties: , 10 Envtl. L. Rep. 20,695 UNITED STATES of America, Plaintiff-Appellee, v. Dean R. FRYBERG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1010

622 F.2d 1010

14 ERC 1731, 10 Envtl. L. Rep. 20,695

UNITED STATES of America, Plaintiff-Appellee, v. Dean R. FRYBERG, Defendant-Appellant.

No. 79-1488.

United States Court of Appeals, Ninth Circuit.

July 7, 1980.

John W. Tapp, Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant.

Stephen C. Schroeder, Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before DUNIWAY and WALLACE, Circuit Judges, and JAMESON, ^* District Judge.

JAMESON, District Judge:

Dean Raymond Fryberg was charged by information with the unlawful taking, shooting and killing of a bald eagle, in violation of 16 U.S.C. § 668 and 668c. ¹ He moved to dismiss the information on the grounds that " § 668 et seq. cannot apply to the taking of an eagle for North American ceremonial and religious purposes", a right secured to him by treaty, and that the prosecution constitutes a violation of the "free exercise" clause of the First Amendment to the Constitution of the United States. Following a combined evidentiary hearing and trial the district court denied the motion to dismiss and found the defendant guilty. We affirm.

Fryberg is an enrolled member of the Tulalip Indian Tribe. It is conceded that he has a treaty right to hunt on the Tulalip Reservation under the Treaty of Point Elliot, 12 Stat. 927 (1859). ² While deer hunting on the reservation, Fryberg shot and killed an immature bald eagle, which was perched in a tree located within reservation boundaries. He did not possess a permit which would allow a taking pursuant to 16 U.S.C. § 668a. ³

At the hearing in district court Fryberg claimed that his purpose in shooting the eagle was to obtain its feathers and other parts to decorate Indian ceremonial objects for use in organized tribal religious and cultural ceremonies. After hearing conflicting testimony, however, the district court found that the killing of the eagle was not for religious ceremonial purposes. ⁴ The court concluded that (1) even if a religious purpose did underlie the killing of the eagle, prosecution under § 668 did not abridge Fryberg's religious rights; and (2) that § 668 and its several amendments clearly show a Congressional intent that the prohibition against killing bald eagles include Indians who enjoy a general treaty right to hunt on their reservation.

The sole issue presented on this appeal is whether the Eagle Protection Act, 16 U.S.C. § 668 et seq., modified or abrogated treaty hunting rights to prohibit the taking and killing of bald eagles.

§ 668(a) provides in pertinent part:

Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do so as provided in sections 668 to 668d of this title, shall knowingly, or with wanton disregard for the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle, commonly known as the American eagle, or any golden eagle, alive or dead, or any part, nest, or egg thereof of the foregoing eagles, or whoever violates any permit or regulation issued pursuant to sections 668 to 668d of this title, shall be fined not more than $5,000 or imprisoned not more than one year or both; . . . ⁵

In contending that his treaty rights to hunt on the reservation were not abrogated or modified by the Eagle Protection Act, appellant relies upon United States v. White, 508 F.2d 453 (8 Cir. 1974), where the court under facts similar to those present here held that the Eagle Protection Act did not affect the hunting rights of the Red Lake Chippewa Indians recognized in treaties negotiated with the United States. The court concluded that to affect those rights "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;" and that Congress had not done so. Id. at 457-458. The court noted that its conclusion was in accord with United States v. Cutler, 37 F.Supp. 724 (D.Idaho 1941), where the court held that a treaty Indian was not subject to the Migratory Bird Act. The White court concluded also that § 668(a) lacked the specificity required of criminal statutes as applied to an Indian on an Indian reservation.

In a dissenting opinion Judge Lay concluded that in enacting the Eagle Protection Act and subsequent amendments, "Congress obviously recognized the dire need for legislation and realized that conservation can be accomplished only by the enactment of a law which applies to all persons, prior treaties notwithstanding." Id. at 462. He said in part:

The majority here, however, limits their analysis of § 668 to the fact that there is no express reference, either within § 668 or its legislative history, to modification of the defendant's treaty right to hunt eagles. Overlooked is the broad wording and the pervasive purpose which the act is intended to fulfill the protection of the bald and golden eagles.

Id. at 459.

In United States v. Allard, 397 F.Supp. 429 (D.Mont.1975), the court agreed with the dissent in White, stating that Judge Lay's opinion "demonstrates that Congress (by making special provisions for Indian permits to take bald and golden eagles) did have Indians in mind; that Congress was gravely concerned with the threat that these magnificent birds might disappear from North America; and that it intended the prohibition to apply to all persons regardless of treaties." Id. at 431. ⁶

The defendant in United States v. Allard and others similarly situated brought suit for declaratory and injunctive relief in the District Court for the District of Colorado. The issue in the Colorado court was limited to whether the parties could be prosecuted for selling eagle products taken prior to the Act's enactment in 1940 (i. e. it did not involve Indian treaty rights). ⁷ A three-judge court held that the Eagle Protection Act and the Migratory Bird Treaty Act did not apply "to preexisting, legally obtained bird parts or products therefrom".

The Supreme Court reversed. In Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979), the Court noted that the "Eagle Protection Act and the Migratory Bird Treaty Act are conservation statutes designed to prevent the destruction of certain species of birds" and held that both acts were applicable to "pre-act bird products", except with respect to their "possession or transportation". The Court was not presented with the treaty abrogation issue, but it notably construed the provisions of the Act broadly and the exceptions narrowly to achieve the conservation purpose of the Act. In concluding that eagle artifacts in existence prior to passage of the Act were subject to its prohibitions despite the absence of express language indicating a retroactive effect, the Court said:

In view of the exhaustive and careful enumeration of forbidden acts in § 668(a), the narrow limitation of the proviso to "possession or transportation" compels the conclusion that, with respect to pre-existing artifacts, Congress specifically declined to except any activity other than possession and transportation from the general statutory ban. To read a further exemption for pre-existing artifacts into the Eagle Act, "we would be forced to ignore the ordinary meaning of plain language." TVA v. Hill, 437 U.S. 153, 173 (, 98 S.Ct. 2279, 2291, 57 L.Ed.2d 117) (1978).

100 S.Ct. at 322.

In United States v. Top Sky, 547 F.2d 486 (9 Cir. 1976), the defendant had been convicted of selling golden eagles and golden eagle feathers in violation of the Eagle Protection Act. In affirming the conviction this court held that the sale of eagle parts was beyond the scope of a treaty giving reservation Indians the right to hunt. It was not accordingly necessary to consider whether the Act modified or abrogated treaty hunting rights. We noted that our holding was not inconsistent with United States v. White, supra, and stated:

We wish to avoid any suggestion that we agree or disagree with the White majority on the issue of treaty abrogation. The Eighth Circuit was divided; Judge Lay's dissent is a substantial one. We leave the question entirely open until it is necessary to decide it.

547 F.2d at 488, n. 4. It is now necessary to decide the question reserved in Top Sky.

As we recognized in Top Sky, the Eagle Protection Act "is a federal statute of general applicability making actions criminal wherever and by whomever committed". We quoted from United States v. Burns, 529 F.2d 114, 117 (9 Cir. 1976): "Such laws are applicable to the Indian unless there exists some treaty right which exempts the Indian from the operation of the particular statutes in question." 547 F.2d at 488.

Both the majority and dissenting opinions in White recognize that "the intention to abrogate or modify a treatment is not to be lightly imputed to the Congress," Menominee Tribe v. United States, 391 U.S. 404, 412-13, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968). It is true, as the majority concludes in White, that neither the Act's statutory language nor its legislative history expressly state that Indian treaty rights were to be abrogated. The White majority recognized that Congress in 1962 amended 16 U.S.C. § 668a to permit the Secretary of the Interior to authorize use of bald and golden eagles "for the religious purposes of Indian tribes". Although a reasonable implication of this amendment is that Indians are otherwise subject to the Act, we agree with White that this language in itself does not show an unambiguous express intent to abrogate Indian treaty hunting rights.

It is not necessary, however, that Congressional determination to abrogate or modify treaty rights be expressed on the "face of the Act". We recognize that "Absent explicit statutory language, (the court must be) extremely reluctant to find congressional...