UNITED STATES OF AMERICA, PETITIONER V. DWIGHT DION, SR.

   No. 85-246

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the United States Court of Appeals for the
Eighth Circuit

   Reply Brief for the United States

   The central premise of the government's case is simply this:
Congress does not abrogate the Yankton Sioux Tribe's treaty-based
hunting rights by enacting general prohibitions on the taking of
eagles -- applicable to Indians and non-Indians alike -- designed to
prevent extinction of the species.  Neither respondent nor the various
amici provide an answer to the primary thrust of the government's
case.

   1. By attempting to recast the issue as whether Congress has
specifically acted to abrogate the treaty entered into between the
United States and the Yankton Sioux Tribe in 1858, the respondent
(see, e.g., Br. 17-18) is engaging in an all-or-nothing debate that
pits the rights of the Tribe against the general public interest in
the conservation of the nation's treasured eagle population.  The
reality left unaddressed by respondent (and amici) is that treaty
rights to hunt a species will inevitably be destroyed if the species
is extinguished.  As this Court stated in considering the restrictions
imposed by the Migratory Bird Treaty Act, 16 U.S.C. 703 et seq., on
hunting of migratory birds, protection of the nation's wildlife is an
"interest of very nearly the first magnitude." Missouri v. Holland,
252 U.S. 416, 435 (1920).  Because both the Bald Eagle Protection Act
(BEPA), 16 U.S.C. 668 et seq., and the Endangered Species Act of 1973
(ESA), 16 U.S.C. (& Supp. II) 1531 et seq., represent congressional
responses to a perceived eagle population crisis, it follows that the
Acts' restrictions must, to be effective, be comprehensive.  See
United States v. White, 508 F.2d 453, 462 (8th Cir. 1974) (Lay, J.,
dissenting) (BEPA can achieve its conservation purpose only if it
applies to everyone).

   2. The result the United States seeks here follows from the
concedely broad federal authority over Indians and Indian tribes.  The
BEPA and ESA are general statutes which, by their terms, do not
exclude Indians from their coverage.  /1/ Indeed, by creating certain
exceptions in both the BEPA for the taking possession and
transportation of eagles "for the religious purposes of Indian tribes"
(16 U.S.C. 668a), and in the ESA for takings of protected species by
any "Indian, Aleut, or Eskimo who is an Alaskan Native who resides in
Alaska" (16 U.S.C. 1539(e)(1)(A)), Congress indicated its intention
that the restrictions of both Acts apply to Indians.  To hold
otherwise would render these carefully limited exemptions meaningless.
 /2/

   As detailed in our opening brief (at 26-31), Congress added the
Section 668a religious exception to the BEPA in 1962, authorizing the
Secretary of the Interior to issue permits for the taking of eagles if
he finds that the taking is "compatible with the preservation" of the
eagle and is "for the religious purposes of Indian tribes." The
legislative history of that Section corroborates its logically
inherent premise -- that Congress believed the statute applied to
Indians.  See Protection for the Golden Eagle:  Hearing on S.J. Res.
105 and H.R.J. Res. 489 Before a Subcomm. of the Senate Comm. on
Commerce, 87th Cong., 2d Sess. 3, 7 (1962).

   Similarly, as detailed in our opening brief (at 28-30), in passing
the ESA in 1973, Congress failed to enact an earlier version of the
legislation that contained an exemption for "American Indians, Aleuts
and Eskimos," which would have preserved Indian treaty rights (H.R.
13081, 92d Cong., 2d Sess. Section 5(a)(2) (1972)), or a provision
that would have allowed limited takings by Indians (S. 3199, 92d
Cong., 2d Sess. (1972)).  In light of the comprehensive nature of the
ESA, and its narrowly written exceptions for Alaskan Indians, the
failure to enact these additional Indian exemptions "virtually
requires the conclusion that Congress intended the Act to cover Indian
activities." Coggins & Modrcin, Native American Indians and Federal
Wildlife Law, 31 Stan. L. Rev. 375, 405 (1979).  /3/

   3. Rather than casting doubt on the applicability of the BEPA and
ESA to Indian tribes, this Court's decisions make clear that
comprehensive, nondiscriminatory conservation statutes apply to
Indians.  This is consonant with the continued existence of treaty
hunting rights, because such rights never grant a tribe the
self-defeating right to hunt any species to extinction.

   In Puyallup Tribe v. Dep't of Game (Puyallup I), 391 U.S. 392, 398
(1968), this Court found that the State of Washington could regulate
the reserved fishing rights of the Puyallup Tribe "in the interest of
conservation, provided the regulation meets appropriate standards and
does not discriminate against the Indians." Because the state
regulations that followed failed to accommodate the rights of Indians,
but instead allowed non-Indians to preempt those rights, the
regulations were struck down in Dep't of Game v. Puyallup Tribe
(Puyallup II), 414 U.S. 44 (1973).  Significantly, however, the Court
there clearly reaffirmed that tribal fishing rights "can be controlled
by the need to conserve a species;  * * * the Treaty does not give the
Indians a federal right to pursue the last living steelhead until it
enters their nets." Id. at 49.  The present case, of course, does not
involve state regulation of a tribe's reserved rights.  But the
Puyallup cases and their progeny establish beyond dispute that a state
can enact nondiscriminatory, generally applicable conservation
measures to preserve a species, although the state is otherwise
powerless to affect treaty hunting or fishing rights.  Certainly the
federal government, whose powers as sovereign are much greater, can
consistently with its responsibilities to the various tribes impose
limits on treaty rights to prevent extinction of a species.  /4/

   4. Respondent (Br. 18-19) and the amici challenge the congressional
determination that golden eagles are in need of protection.  While it
is true that the golden eagle is not listed as a threatened or
endangered species under Section 4(a) of the ESA, 16 U.S.C. 1533(a),
it is nonetheless undisputed that it is a protected bird subject to
the prohibitions of the BEPA.  Respondent is, in effect, asking this
Court to substitute its judgment for that of Congress regarding the
need for protection of the golden eagle (both for its own sake and
because it is difficult for hunters to distinguish it from the bald
eagle).  However, it is not the role of the courts to reweigh the
evidence that resulted in a congressional determination that a valued
public resource was in need of protection.  Kleppe v. New Mexico, 426
U.S. 529, 541 n. 10 (1976).

   Conspicuous by its absence is any attempt by respondent or amici to
reconcile their argument that the danger to either the golden or bald
eagle by Indian hunting is not a real threat with the express
congressional determination that both species are in need of
protection.  It is, of course, axiomatic that a statute must be
interpreted in light of the purposes Congress sought to achieve.  See,
e.g., Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 118
(1983).  As we have demonstrated in our opening brief, application of
the prohibitions of both the ESA and the BEPA to Indians who take
protected species either on or off reservation is fully consistent
with the statutory language and those statutes' respective legislative
histories.

   5. There is no merit in the contention advanced by amici that
application of the BEPA and ESA in this case violates the Free
Exercise Clause of the First Amendment.  Respondent did not allege at
trial that the takings in question were for religious purposes.  This
case, therefore, presents no occasion for this Court to consider
whether any taking of a protected species by an Indian for religious
purposes is subject to either the BEPA or ESA.

   A. Prior to trial, respondent filed a Motion For Dismissal
asserting, inter alia, that the ESA, BEPA and the Migratory Bird
Treaty Act were unconstitutional restrictions on his religious
practices.  The district court held a pretrial hearing on respondent's
motion, at which it heard testimony (J.A. 11-21) concerning the
religious practices of the Native American Church of North America, of
which respondent is a member (id. at 22), as well as testimony by
respondent himself (id. at 21-29).  This testimony established that
the Native American Church looks with disfavor on the sale of
religious prayer instruments (id. at 11) and is opposed to the killing
of eagles (id. at 12).  Only a few Indians are capable of making
prayer instruments, and these craftsmen make religious objects for
anyone in the church who requires their use (id. at 14).
Significantly, respondent did not assert that he took the five eagles
in question for religious purposes.  The district court refused to
dismiss the indictment on religious grounds (Pet. App. 70a),
nevertheless making clear that respondent would be free at trial to
introduce evidence regarding the religious motivation, if any, for his
taking of eagles.  Respondent did not offer any such evidence at
trial.  In fact, respondent here admits (Br. 21 n.8) that the takings
in this case were not for religious purposes.  It could hardly be
otherwise, since the evidence clearly shows that the birds taken were
sold to federal agents posing as dealers in Indian arts and crafts
(Pet. App. 27a-29a).

   Having failed to establish a factual predicate for his claim of a
violation of his First Amendment rights, respondent may not now raise
the constitutional issue.  By contrast, in Wisconsin v. Yoder, 406
U.S. 205 (1972), the Amish challenging Wisconsin's compulsory
school-attendance law "abundantly" supported their claim that the
State's requirement of compulsory formal education after the eighth
grade "would gravely endanger if not destroy the free exercise of
(their) religious beliefs" (406 U.S. at 219).  This Court accordingly
found, on balance, that the State could not compel such school
attendance (406 U.S. at 234).  But respondent here failed to present
any factual support for a free exercise claim, and in fact concedes
that the takings in this case were not for religious purposes.  There
is, therefore, no occasion at his behest for this Court to consider a
constitutional challenge to the BEPA and ESA, grounded on their
possible application "to other persons or other situations." United
States v. Raines, 362 U.S. 17, 21 (1960).  /5/ If, at some future
time, enforcement actions under the BEPA or the ESA actually interfere
with the rights of native Americans to the free exercise of their
religion, it will then be time enough to consider whether those
actions impermissibly burden First Amendment rights.  /6/ The
relationship between the government's pursuit of its
statutorily-mandated objectives and Indian religious freedom raises
issues that are neither trivial nor insignificant.  See, e.g.,
Northwest Indian Cemetery Protective Ass'n v. Peterson, 764 F.2d 581
(9th Cir. 1985), petition for reh'g pending, No. 83-2225.  However,
this case does not involve any such issues;  for that reason, this
Court should decline the invitation of respondent and amici to address
them.  /7/

   B. In any event, contrary to assertions by amici, Congress has
adequately accommodated the religious needs of Indians by empowering
the Secretary under the BEPA to issue permits authorizing the taking
of bald and golden eagles "for the religious purposes of Indian
tribes" (16 U.S.C. 668a).  See 50 C.F.R. 22.2.  Since June 1977, the
Department of the Interior has provided 673 bald eagle and 3,266
golden eagle carcasses to Indians from its central repository in
Pocatello, Idaho.  /8/ Contrary to the assertions of respondent and
amici, the United States is acting to protect and preserve the rights
of American Indians to use eagles and their parts for religious
purposes.  /9/

   6. Finally, respondent asserts (Br. 31-34) that "he cannot be
prosecuted for taking the same identical eagles that he has already
been convicted of selling." Respondent did not raise this argument in
the lower courts and, consequently, those courts had no occasion to
pass on it.  Accordingly, this Court should decline to consider the
issue.  See, e.g., County of Oneida v. Oneida Indian Nation, No.
83-1065 (Mar. 4, 1985), slip op. 16-17.  There is, in any event, no
merit to this claim -- which, of course, raises solely an issue of
statutory construction (see, e.g., Missouri v. Hunter, 459 U.S. 359
(1983)).  Congress specifically provided in the BEPA that "each taking
or other act prohibited by this section with respect to a bald or
golden eagle shall constitute a separate violation of this section"
(16 U.S.C. 668(a)).  See also 16 U.S.C. 1540(a), providing -- for
civil penalties under the ESA -- that "(e)ach violation shall be a
separate offense." The criminal penalties provision (16 U.S.C.
1540(b)), essentially overlaps the civil provision, and evidently has
the same scope.

   For the foregoing reasons, as well as those stated in our opening
brief, the judgment of the court of appeals affirming the dismissal of
Count 12 of the indictment and reversing respondent's convictions on
Counts 8 and 10 should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   March 1986

   /1/ Cf. Hynes v. Grimes Packing Co., 337 U.S. 86, 122 (1949)
(federal statute regulating Alaskan fishing rights "applies to
commercial fishing by natives equally with fishing companies,
nonresidents of Alaska or other American citizens, and so applies
whether those natives are or are not residents on a reservation").

   /2/ This is hardly a noval notion.  For example, in 1855 the Makah
Indians were granted an express treaty right to conduct sealing
activities.  Treaty of Jan. 31, 1855, art. 4, 12 Stat. 940.  However,
the United States, in response to an international conservation
dispute with Great Britain, subsequently passed legislation
prohibiting sealing, but creating a limited exception for traditional
Indian sealing.  Act of Apr. 6, 1894, ch. 57, 28 Stat. 52 et seq.  The
Attorney General concluded that Makah Indians who did not fall within
the specific exception were subject to the federal statute's general
prohibitions.  21 Op. Att'y Gen. 466 (1897).  The Indian Claims
Commission later agreed, stating that the Makah Indian's rights "are
not so absolute, exclusive, and unlimited that they cannot be limited
or accommodated * * * (by) proper measures to conserve and protect our
natural resources for the general welfare and benefit of all
citizens." Makah Indian Tribe v. United States, 7 Indian Cl. Comm'n,
477, 496 (1959), aff'd mem., 151 Ct. Cl. 701 (1960), cert. denied, 365
U.S. 879 (1961).  See also United States v. The James G. Swan, 50 F.
108 (D. Wash. 1892) (holding that a Makah vessel is subject to
forfeiture for illegal taking of seals).

   Respondent mistakenly suggests (Br. 11) that a federal district
court decision, United States v. Cutler, 37 F. Supp. 724 (D. Idaho
1941), and a 1942 opinion of the Solicitor of the Interior, 1 Op.
Solic. Interior Dep't 1090 (1942), support an inference that Congress
originally enacted the BEPA with the understanding that it would not
apply to Indians.  However, both of these sources post-dated the 1940
enactment of the BEPA.  As the Makah controversy demonstrates,
pre-1940 authority supports an opposite inference.  See also New York
ex rel. Kennedy v. Becker, 241 U.S. 556 (1916).  Indeed, a 1934
Solicitor's opinion concludes that the Migratory Bird Treaty Act,
similar in its terms to the BEPA, would apply to Indians who hunted
upon their reservations.  54 Interior Dec. 517 (1934).  Furthermore,
this Court had recently indicated that statutes of general application
should generally apply to Indians.  Choteau v. Burnet, 283 U.S. 691,
693-694 (1931).  Notably, Cutler has been subject to sound criticism.
See Coggins & Modrcin, Native American Indians and Federal Wildlife
Law, 31 Stan. L. Rev. 375, 408 (1979) ("Cutler is certainly wrong as a
statement of the law.").

   /3/ Respondent is plainly wrong in suggesting (Br. 26) that a
special exception for Alaskan natives was enacted because their
aboriginal hunting rights were terminated under the Alaska Native
Claims Settlement Act, 43 U.S.C. 1601 et seq.  Nothing in the
legislative history supports that argument.  As we explain in our
opening brief (at 30), the Alaskan native exception was enacted in
response to the Alaskan natives' unique dependence on species, such as
the bowhead whale, likely to be regulated under the ESA.  See 119
Cong. Rec. 25677 (1973);  see also 118 Cong. Rec. 8400-8401 (1972)
(describing a similar exception for Alaskan natives under the Marine
Mammal Protection Act, 16 U.S.C. 1371(b)).

   Amici National Congress of American Indians suggest (Br. 15-16)
that the failure to include a specific reference to Indian treaty
rights in the currently pending, proposed reauthorization of the ESA
supports the claim that the ESA does not limit those rights.  In fact,
the hearings to which they refer (Endangered Species Act:  Hearings
Before the Subcomm. on Fisheries and Wildlife Conservation and the
Environment of the House Comm. on Merchant Marine and Fisheries, 99th
Cong., 1st Sess. 311-457 (1985)) are to precisely the opposite effect.
 They show that the Department of the Interior drafted an amendment at
the subcommittee's request to overcome the problems posed by the
decision below (id. at 314, 427).  Representatives of the Department
(id. at 313-314) and subcommittee members (id. at 320, 411-414,
415-418, 430-431) nevertheless clearly expressed the view that that
decision was incorrect, and that the ESA as originally enacted applied
to Indian treaty rights.  It was also repeatedly predicted that this
Court would so hold (id. at 419, 421, 432).  It was suggested that
"the only subject that this Congress need deal with, if it need deal
with any at all, is that which Dion deals with, which is the treaty
rights, and on that subject, your choices are to wait for the Supreme
Court to act or to reaffirm what * * * is already clear from the act"
-- that it applies across the board to all takings of endangered and
threatened species (id. at 422).  The former alternative was adopted,
as suggested by the Interior (id. at 314, 316).  See 131 Cong. Rec.
H6468 (daily ed. July 29, 1985).  Contrary to the implication of
amici, Congress has not yet completed action on the reauthorization.

   /4/ Cf. Aleut Community v. United States, 117 F. Supp. 427, 431
(Ct. Cl. 1954).  Respondent's attempt (Br. 15) to distinguish this
Court's decision in the Puyallup cases and Washington v. Washington
State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979),
as involving in-common rights to fish as opposed to the assertedly
"exclusive" hunting rights he possesses is unavailing.  Where, as
here, a migrating species has been afforded protection by Congress,
all citizens share an interest in the species, and share in the
responsibility to refrain from hunting the species to extinction.  In
a real sense, therefore, the rights (and responsibilities) of the
Tribe and other citizens vis-a-vis bald and golden eagles are no less
"in-common" than those involved in the Puyallup cases.

   /5/ Amici's discussion (see, e.g., National Congress of American
Indians Br. 12-16) of the American Indian Religious Freedom Act, 42
U.S.C. 1996 et seq., is of no aid to respondent.  That entirely
exhortatory statute reflects Congress's desire to protect the
"possession of sacred objects" by Indians, which, of course, says
nothing about the killing or sale of eagles or eagle parts.  In fact,
the legislative history indicates that Congress intended simply to
protect legally acquired artifacts.  H.R. Rep. 95-1308, 95th Cong., 2d
Sess. 3 (1978);  see also 124 Cong. Rec. 21444 (1978) (statement of
Rep. Udall) ("(I)t is not the intent of my bill to wipe out laws
passed for the benefit of the general public or to confer special
religious rights on Indians.  It is not the intent or the effect of my
bill to permit Indians to cause the extinction of a species.").
Accord, Federal Agencies Task Force, U.S. Dep't of Interior, American
Indian Religious Freedom Act Report, P.L. 95-341, at 72 (Aug. 1979).

   /6/ Although amicus Hopi Indian Tribe details at some length the
Hopi religious practices that involve the use of golden eagle feathers
(Br. 7-11), we note that there is no claim that enforcement of either
the BEPA or the ESA has to date interfered with those practices.  See,
e.g., Br. 23-24.

   /7/ It is inappropriate to apply to this case the principles
developed in order to avoid the chilling effect of overbroad
legislation on expressive activities protected by the First Amendment.
 See, e.g., Bigelow v. Virginia, 421 U.S. 809, 815-818 (1975);
Broadrick v. Oklahoma, 413 U.S. 602, 611-615 (1973).  Even if we
assume that these principles, which "reflect the transcendent value to
all society of constitutionally protected expression" (421 U.S. at
816) and association (413 U.S. at 612-613), apply to other rights
protected by the First Amendment, they surely are inapplicable where,
as here, the area affected by the law as a whole does not to any
substantial degree involve First Amendment activities, and is clearly
constitutional in the great preponderance of applications where
conduct is involved.  "(T)he plain import of our cases is, at the very
least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at
the outset, attenuates as the otherwise unprotected behavior that it
forbids the (government) to sanction moves from 'pure speech' toward
conduct and that conduct -- even if expressive -- falls within the
scope of otherwise valid criminal laws that reflect legitimate
(government) interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct." 413 U.S. at 615;  cf.
421 U.S. at 817.  The ordinary rule is "that one to whom application
of a statute is constitutional will not be heard to attack the statute
on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be
unconstitutional" (United States v. Raines, 362 U.S. at 21).  At most,
"(a) plausible challenge to a law as void for overbreadth can be made
(by one whose conduct is not itself constitutionally protected) only
when (1) the protected activity is a significant part of the law's
target, and (2) there exists no satisfactory way of severing the law's
constitutional from its unconstitutional applications so as to excise
the latter clearly in a single step from the law's reach." L. Tribe,
American Constitutional Law 711 (1978) (emphasis in original);  cf.
Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844,
858-862, 882-910 (1970).  Respondent can satisfy neither of these
criteria.  If there is in fact any constitutional overbreadth in
either the BEPA or the ESA, that defect can be cured when a proper
claimant comes before the Court.

   /8/ The assertion of amici Assiniboine and Sioux Tribes of the Ft.
Peck Reservation (Br. 23) that "white ranchers * * * are given permits
to kill eagles to protect sheep or cattle" is factually erroneous.
See also Hopi Indian Tribe Amicus Br. 20 n.5.  No depredation permits
(50 C.F.R. 22.23) or depredation orders (50 C.F.R. 22.31) that allow
the killing of eagles have been issued since 1983.

   /9/ Moreover, it has been and remains the policy of the Department
of the Interior to permit Indians to "possess, carry, use, wear, give,
loan, or exchange among other Indians, without compensation, all
federally protected birds, as well as their parts or feathers"
"without fear of Federal prosecution, harassment, or other
interference." This policy was announced by Secretary of the Interior
Rogers C. B. Morton on February 5, 1975, and has been adhered to since
that time.  The news release describing this policy was made part of
the district court record in this case as an attachment to the
government's response to the motion for dismissal, filed on July 26,
1983.