United States v. Turtle

Citation365 F.Supp.3d 1242
Decision Date04 February 2019
Docket NumberCase No: 2:18-cr-88-FtM-38MRM
Parties UNITED STATES of America v. Jack W. TURTLE
CourtU.S. District Court — Middle District of Florida

Jeffrey Michelland, US Attorney's Office, Ft. Myers, FL, for United States of America.

Donald Paul Day, Law Office of Donald Day, Naples, FL, Martin Der Ovanesian, Federal Public Defender's Office, Danielle Liguori O'Halloran, Ringsmuth, Day & O'Halloran, Ft. Myers, FL, for Defendant.

OPINION AND ORDER 1

SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Jack W. Turtle's Motion to Dismiss (Doc. 36), Turtle's Memorandum in Support (Doc. 38), and the Government's response (Doc. 43). The Court heard oral argument on January 4, 2019, and the Motion is now ripe.

The Government charged Turtle with seven counts of selling American alligator eggs in violation of the Lacey Act, 16 U.S.C. § 3371 et seq. , predicated on the Endangered Species Act ("ESA"), 16 U.S.C. § 1531 et seq. (Doc. 1). Turtle is a member of the Seminole Tribe of Florida who resides on the Brighton Seminole Indian Reservation. (Doc. 1). The Government alleges that Turtle sold 3,996 eggs collected on the Reservation between June 19, 2015, and July 30, 2016, for $ 19,980. (Doc. 43). Turtle now moves to dismiss the indictment.

Fed. R. Crim. P. 12 allows a defendant to challenge an indictment as defective for failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). When considering a pretrial motion to dismiss, "a district court is limited to reviewing the face of the indictment and, more specifically, the language used to charge the crimes." United States v. Sharpe , 438 F.3d 1257, 1263 (11th Cir. 2006). The 11th Circuit does not permit district courts to dismiss an indictment based on facts outside the indictment, even if those facts are undisputed. United States v. Salman , 378 F.3d 1266, 1267-68 (11th Cir. 2004). But a district court must "dismiss an indictment if the indictment fails to allege facts which constitute a prosecutable offense." United States v. Coia , 719 F.2d 1120, 1123 (11th Cir. 1983). The Court thus assumes the allegations in the Information are true and will determine whether they implicate Turtle for the charged crimes as a matter of law.

The Information charging Turtle tracks the language of the ESA and the Lacey Act. The Lacey Act prohibits knowingly selling wildlife when, in the exercise of due care, the defendants should have known the wildlife was taken in violation of state or federal law. 16 U.S.C. § 3372(a)(1), § 3373(d)(2). The ESA, in turn, empowers the Secretary of the Interior to promulgate regulations to protect threatened species and prohibits the violation of any such regulation. 16 U.S.C. § 1533(d), § 1538(a)(1)(G). 50 C.F.R. § 17.11(h) lists the American alligator as threatened due to similarity in appearance with other listed crocodilians, and a regulation promulgated under the ESA prohibits the taking and sale of American alligator eggs unless done in accordance with the laws and regulations of the State or Tribe in which the taking and sale occur. 50 C.F.R. § 17.42(a)(2).

Turtle does not attack the charging language in the Information. He instead focuses on the authority of the U.S. and Florida governments to impose their laws on members of the Seminole Tribe. Turtle argues the Tribe has traditional sovereign hunting and fishing rights never relinquished by treaty, and any statutes restricting those rights are void and unenforceable. (Doc. 38). The Government concedes that the Tribe has implicit usufructuary rights but questions whether those rights include the right to sell wildlife. If they do, the Government argues that the Tribe still must comply with the ESA based on two alternative theories: that Congress abrogated Turtle's right to collect alligator eggs when it passed the ESA and the Lacey Act, and that, if not, the ESA and Lacey Act are still enforceable against the Tribe as reasonable and necessary conservation measures.

A. The Seminole Tribe of Florida's Sovereignty

The Seminole Tribe of Florida is a federally recognized Indian Tribe. Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 83 Fed. Reg. 34,863, 34,866 (July 23, 2018). Its reservations were established in 1911 by President Taft through Executive Order No. 1379. The parties agree there is no treaty between the Tribe and the United States relevant here, but "Indian reservations created by statute, agreement, or executive order normally carry with them the same implicit hunting rights as those created by treaty." United States v. Dion , 476 U.S. 734, 745 n.8, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986).

Turtle argues that Congress' "authority to regulate Native Tribes...is firmly rooted in the principle that the Tribes relinquished some sovereign rights by treaty," and since the Seminole Tribe of Florida has no treaty with the United States, its members "can't be controlled or regulated by a foreign entity." (Doc. 38). At the hearing on the Motion, Turtle's Counsel repeatedly argued that the U.S. Government's only legitimate method of regulating Indian tribes is through treaties. But in fact, Congress abandoned the practice of signing treaties with Indian tribes in 1871. 25 U.S.C. § 71 ("No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty[.]"). Since then, Congress has dealt with Indian tribes "through the legislative and not through the treaty-making power." Elk v. Wilkins , 112 U.S. 94, 107, 5 S.Ct. 41, 28 L.Ed. 643 (1884). "It is well established that Congress, in the exercise of its plenary power over Indian affairs, may restrict the retained sovereign powers of the Indian tribes." Washington v. Confederated Bands & Tribes of Yakima Indian Nations , 439 U.S. 463, 501, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) ; see also Michigan v. Bay Mills Indian Cmty. , 572 U.S. 782, 788, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014) ("Indian tribes are domestic dependent nations that exercise inherent sovereign authority...As dependents, the tribes are subject to plenary control by Congress." (internal quotations and citations omitted) ). Congress clearly has the authority to limit the rights of tribal members through legislation even in absence of a treaty. Before the Court decides whether Congress has done so here, it must determine whether Turtle's conduct fell within the scope of his tribal rights.

B. The Scope of the Tribe's Usufructuary Rights

"As a general rule, Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them, unless such rights were clearly relinquished by treaty or have been modified by Congress. These rights need not be expressly mentioned in the treaty." Dion , 476 U.S. at 738, 106 S.Ct. 2216 (citations omitted). Turtle asserts that the Seminoles retain their traditional hunting, gathering, and fishing rights, but his Memorandum of Law is silent on a traditional right to sell wildlife. (Doc. 38). For its part, the Government concedes that the Tribe has implicit hunting and fishing rights, but not the right to sell wildlife.

The Government cites several cases that address whether tribes' treaty-guaranteed usufructuary rights included the right to sell parts of the animals they hunted. Those cases hinged on whether the tribes traditionally engaged in the sale of wildlife parts. For example, both the Eighth and Ninth Circuits have held that tribal members did not have treaty rights to sell eagle feathers because their tribes historically deplored the sale of eagle parts and thus would not have understood the treaties to reserve such a right. United States v. Dion , 752 F.2d 1261, 1264 (8th Cir. 1985) ; United States v. Top Sky , 547 F.2d 486, 487-88 (9th Cir. 1976). But when tribes historically relied on the trade of animal parts, courts have interpreted usufructuary rights to include sale and barter. United States v. Fiddler , No. 2:10-CR-52-RLH, 2011 WL 2149510, at *3-4 (D. Nev. Mar. 11, 2011), report and recommendation adopted , No. 2:10-CR-52-RLH, 2011 WL 2148853 (D. Nev. June 1, 2011) ; United States v. Bresette , 761 F.Supp. 658, 660-62 (D. Minn. 1991).

There are no treaties to interpret here, but "[e]xecutive orders, no less than treaties, must be interpreted as the Indians would have understood them ‘and any doubtful expressions in them should be resolved in the Indians' favor.’ " Parravano v. Babbitt , 70 F.3d 539, 544 (9th Cir. 1995) (quoting Choctaw Nation v. Oklahoma , 397 U.S. 620, 631, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970) ). When determining the rights associated with executive-order reservations, courts "must consider the executive orders themselves, the circumstances surrounding their creation, and the history of the Indians for whom they were created." Confederated Tribes of Chehalis Indian Reservation v. State of Wash. , 96 F.3d 334, 342 (9th Cir. 1996).

The Court first turns to the language of the executive order that established the Tribe's reservations:

It is hereby ordered that the following described lands in the State of Florida be, and they are hereby withdrawn from settlement, entry, sale, or other disposal, and set aside as a reservation for the Seminole Indians in southern Florida, provided that this withdrawal is subject to any existing valid rights or claims of any persons[.]

Exec. Order No. 1379. The order then lists the metes and bounds of six parcels of land that became Seminole reservations. Id. Executive Order 1379 thus does not expressly limit the Tribe's implied hunting and fishing rights. Nor do the circumstances surrounding the order or the history of the Seminoles. In fact, in the early 20th century, alligator hides and eggs were important trade goods for tribal members who bartered with white settlers. Harry A. Kersey Jr., Pelts, Plumes, and Hides: White Traders among the Seminole Indians,...

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