Warren E. Burger: We will hear arguments next in United States against Dion. Mr. Minear, I think you may proceed whenever you are ready.
Jeffrey P. Minear: Mr. Chief Justice, and may it please the Court, the question in this case is whether an Indian may assert tribal hunting rights as a defense to prosecution for taking wildlife in violation of federal conservation statutes. The focus in this case is on protection of our national symbol, the bald eagle, a majestic but endangered species. Despite extensive federal protection under the Bald Eagle Act and the Endangered Species Act, the eagle remains the frequent object of black market trade. In 1980, the Department of Interior initiated a major undercover operation to halt the illegal killing and sale of eagles in South Dakota. Respondent, a Yankton Sioux Indian, was among those apprehended. At trial, the United States produced extensive evidence that respondent had engaged in a series of eagle transactions over a two-year period in which he had offered to kill, killed, and sold eagles for profit to undercover agents posing as Indian crafts dealers. The jury found respondent guilty of killing bald eagles, in violation of the Endangered Species Act, and of selling eagles and other protected birds in violation of the Bald Eagle Act and the Migratory Bird Treaty Act. The United States Court of Appeal for the Eighth Circuit sitting en banc partially vacated respondent's conviction. The court concluded that Yankton Sioux Indians have an implied treaty right to hunt eagles for noncommercial purposes. The court further concluded that neither the Bald Eagle Act nor the Endangered Species Act demonstrated sufficient Congressional intent to limit that right. The court stated that the United States could retry respondent, but the government would be required to prove that respondent had taken the eagles for commercial purposes. The United States' position in this case is straightforward. We submit--
Sandra Day O'Connor: Mr. Minear, may I ask the status of what it is we are reviewing? I guess the en banc court remanded to a panel of the Eighth Circuit.
Jeffrey P. Minear: --That is correct.
Sandra Day O'Connor: And the panel on remand found that the takings were for commercial purposes. And I take it that is not contested. That is not an issue any more.
Jeffrey P. Minear: We don't believe that it is contested. This is a finding that the Court of Appeals panel did make. It made it in the context--
Sandra Day O'Connor: So are we being asked to review the en banc judgment that occurred before the remand?
Jeffrey P. Minear: --Yes, that is right. The issue that this Court is reviewing is whether or not this affirmative defense in fact exists. We submit that there is in fact no commercial or noncommercial taking defense for Indians in these cases.
Sandra Day O'Connor: And all we are looking at is the question of, if it is not for a commercial purpose and not for a religious purpose.
Jeffrey P. Minear: That is right, Your Honor.
Sandra Day O'Connor: Is that right?
Jeffrey P. Minear: Yes. We think that the Court of Appeals has foreclosed takings and made them illegal in the other situations. Continuing, we submit that Congress does not compromise Indian hunting rights by an act of general prohibition on the taking of wildlife applicable to Indians and non-Indians alike, designed to prevent extinction of the species. In this instance, Congress has given special protection to the nation's severely threatened eagle population through the Bald Eagle Act and the Endangered Species Act. As Congress plainly recognized, these statutes require nationwide coverage, and cannot function effectively unless everyone is subject to the conservation regime.
Harry A. Blackmun: Do you regard the golden eagle as threatened with extinction today?
Jeffrey P. Minear: Your Honor, the Congress has made that determination in its 1962 amendments to the Bald Eagle Act. As a preamble to its statutory amendments, it stated that the Bald Eagle Act--
Harry A. Blackmun: They certainly treated the two types of eagles differently, did they not?
Jeffrey P. Minear: --Yes, they did treat them somewhat differently, although both are--
Harry A. Blackmun: Somewhat? Considerably different.
Jeffrey P. Minear: --In both cases, bald eagles and golden eagles, the prohibitions apply to both of these eagles, in both cases. The only difference of any great substance, I think, is that in 668, the provision that permits the Secretary to allow certain limited takings, and he prescribed those by regulation, while in the case of the bald eagle they can only be taken by permit.
Sandra Day O'Connor: Well, I thought the government conceded that the golden eagles were not endangered, but that when they were young they resembled bald eagles, and therefore as a prophylactic measure the government decided to prohibit the taking of either. Is that correct?
Jeffrey P. Minear: Your Honor, I don't believe that is quite correct.
Harry A. Blackmun: That certainly is what came through to me, too. Straighten us out.
Jeffrey P. Minear: Okay. Your Honor, the Bald Eagle Act was amended in 1962. In the preamble to that Act, Congress stated--
Harry A. Blackmun: That is 20 years ago.
Jeffrey P. Minear: --Yes.
Harry A. Blackmun: Go ahead.
Jeffrey P. Minear: Stated that it had two purposes for extending protection to the gold eagle. One was to prevent the eminent extinction which Congress realized could occur given the large number of takings that were occurring at that time. In addition, Congress also noted that the immature bald eagle was indistinguishable from the golden eagle, and for that reason protection was also extended to the golden eagle, to prevent any inadvertent takings of the bald eagles. As this time the golden eagle is not listed as an endangered species. It has not been listed under the Endangered Species Act as an endangered species. We nevertheless submit that there is a substantial threat to the golden eagle population. We submit that there is no real conflict between Indian hunting rights and the federal statute. This conclusion is not only sensible, it is consistent with the Yankton Sioux treaty, the statutory language, and the nation's vital interest in protecting endangered species. We turn first to the Indian treaty itself. The 1858 treaty with the Yankton Sioux makes no mention whatsoever of specific Indian hunting rights, much less the right to hunt eagles. The treaty did not, of course, prohibit the tribe from continuing to hunt game on its reserved lands. However, it did not give them an absolute and unfettered right to take eagles regardless of consequences. When the treaty was negotiated, both parties prized eagles, the United States as its national symbol since 1782, and the Indians as a sacred object. Neither party recognized that wildlife resources were exhaustable, and neither contemplated how eagles might be allocated if they later became scarce. Certainly under these circumstances the government does not surrender through silence its sovereign power and responsibility to protect eagles for future generations. Instead, the government retained that right as an exercise of its tribal trust authority and for the public at large. Likewise, the Yankton Sioux, who considered the capture of an eagle a sacred activity, had no reason to expect that the treaty gave them an absolute right to kill eagles. Indeed, unlimited Indian hunting of eagles would destroy the very treaty right they now claim. In short, whatever hunting rights the Yankton Sioux might possess, they do not have an absolute right to conduct hunting activities that threaten the survival of a species that is of great importance to the entire nation. An examination of the Bald Eagle Act and the Endangered Species Act leads to the same result. Congress plainly intended that these statutes, framed in terms of universal application, would apply to Indian tribes. It is well settled that federal laws of general application generally do apply to Indians, and this principle has been firmly established since the 1930's, prior to enactment of these statutes. Contrary to respondent's arguments, there was no need for Congress expressly to include Indians in the coverage of these Acts. These statutes do not abrogate any Indian treaty right. Instead, they impose reasonable regulations that are consistent with the preservation of those rights. Given the migratory nature of eagles, the species can only be preserved and restored to its original numbers if all are subject to the conservation regime. In turn, all will ultimately benefit from the fruits of this conservation program. Thus there is no direct conflict between Indian hunting rights and the federal conservation statutes. They can be reconciled in much the same manner that property rights are subject to zoning restrictions. In all events, the Bald Eagle Act and the Endangered Species Act amply meet the higher standard that respondent suggests. Both statutes on their face show that Congress considered the special cultural and religious interests of Indians and balanced their needs against the conservation purposes of these statutes. For example, the Bald Eagle Act provides a limited exception, authorizing the Secretary to permit Indians to use eagles for religious purposes. The Endangered Species Act also contains a limited exception, authorizing Alaskan natives to take endangered species for subsistence purposes. These carefully limited exceptions applicable to particular Indian activity demonstrate that Congress intended these statutes to apply to the Indian tribes. Moreover, application to the Indians is necessary if the broad conservation goals of these statutes are to be met. The nation's 240 Indian reservations have a population of approximately 750,000 people. They encompass a land area of approximately 50 million acres, much of it wildlife habitat. Surely it is unlikely that Congress would have silently excluded the Indians and their extensive land holdings from the coverage of these Acts. Indeed, this point was recently reiterated during the pending reauthorization of the Endangered Species Act. The House Subcommittee, informed of the Court of Appeals decision in this case, held hearings to consider the need for a legislative response. The Subcommittee ultimately concluded that there was no need to address this issue in the reauthorization bill. Representative Breaux, chairman of the Subcommittee and sponsor of the House bill, explained this decision on the House floor. He stated, "H.R. 1027 does not contain an amendment relating to the take of endangered species by Native Americans for traditional purposes. " "While there have been conflicting court decisions on this issue, it is clear from the language of the ESA and the legislative history that the Act is a nondiscriminatory conservation statute that applies to all citizens equally. "
William H. Rehnquist: Now, what sort of legislative history do you feel that is that supports your position?
Jeffrey P. Minear: I think it probably could be characterized as insipient legislative history.
William H. Rehnquist: Grade F or Grade E perhaps? 0 [Generallaughter.]
Jeffrey P. Minear: At this point the House, shortly after this statement was made, the House passed the reauthorization bill, and the action is now pending in the Senate.
William H. Rehnquist: Having been assured by the chairman of the Subcommittee that the coverage of a particular Act that had been passed many years before was such and such.
Jeffrey P. Minear: Yes, I think that that is reasonable. It is a reasonable reading of the statutory language.
William H. Rehnquist: I do, too, but the question is, how much additional weight do you give to this little transaction on the House floor? It seems to me it is pretty close to the bottom of the barrel.
Jeffrey P. Minear: I do believe, Your Honor, that it is relevant and should be brought to the Court's attention. I think this Court has stated in other contexts that how statements should be given... or floor statements are entitled to less respect than legislative reports.
William H. Rehnquist: But we are not talking, as I understand it, about a floor statement at the time that the bill in question was passed, whose coverage we are now trying to ascertain. We are talking about a floor statement many years later.
Jeffrey P. Minear: Yes, that is right, Your Honor.
William H. Rehnquist: Certainly we didn't mean that all floor statements should be brought to our attention. 0 [Generallaughter.] May I ask you about something that is perhaps more contemporaneous with the enactment? What do you have to say about the memorandum from the office of the solicitor of the Department of the Interior that is quoted in your adversary's brief at Page 21 that a treaty Indian is not subject to the Migratory Bird Treaty Act while on his own reservation? Do you think that is simply an incorrect statement, or you disavow it, or what?
Jeffrey P. Minear: That was a 1962 memorandum, an internal memorandum.
John Paul Stevens: Right.
Jeffrey P. Minear: It was quoted in the White opinion. I have not seen that memorandum. I am not sure it even still exists, for that matter.
John Paul Stevens: Whether it still exists or not, you don't question that it did at one time exist?
Jeffrey P. Minear: Yes, it certainly did exist at one time, and it was quoted, but what I am pointing at, Your Honor--
John Paul Stevens: We may not have the original copy of Hamlet, either, but we know what it says. 0 [Generallaughter.]
Jeffrey P. Minear: --But, Your Honor, I am not sure what context that was said in. I guess that is my primary point on this. But I think if we are going to look at secondary sources for Congressional intent, there are a lot of conflicting indications during this period, from the 1940 period, when the Bald Eagle Act was originally passed, until 1962.
John Paul Stevens: I know, but generally... I know the Court has frequently... Mr. Cohen's work on Indian law and so forth has been treated almost like the Bible from time to time, and I guess this is the... I don't know whether this was Felix Cohen or Solicitor Margo. I am not sure which it was. But I assume that it has often been given a little more deference that some internal memoranda.
Jeffrey P. Minear: We are not even sure, Your Honor, this was in fact from the solicitor himself. The indication is only that it is a memorandum from the office of the solicitor. So it could very well have been a staff person's memorandum. We simply don't know what level of authority this memorandum came from.
John Paul Stevens: It is your position it is just simply wrong?
Jeffrey P. Minear: Yes, I think that it is inaccurate. I think that that is verified by the Interior Department's action immediately after the passage of the 1962 amendments, in which case they extended the... they provided the religious exception would only apply to bona fide Indians, and it seems to me their interpretation of the religious exception clearly contemplated that this statute would apply to the Indians.
Thurgood Marshall: Are you saying that the Department of Interior says that this does not exist?
Jeffrey P. Minear: No, we have simply been unable to locate that particular memorandum. I have not been able to--
Thurgood Marshall: You mean, the Interior Department can't locate its own files?
Jeffrey P. Minear: --Sometimes it is difficult to find memoranda that are 20 years old.
Thurgood Marshall: But this is impossible. This is impossible.
Jeffrey P. Minear: I cannot say it is impossible, no.
Thurgood Marshall: How do you account for the fact that they have it and the Interior Department doesn't have it?
Jeffrey P. Minear: I believe that they just cited the White opinion, which quoted this. I am not sure if Mr. Pechota has a copy of the memorandum or not. Perhaps he can elaborate on that. We submit the Bald Eagle Act and the Endangered Species Act amply demonstrate Congressional intent to regulate Indian activities. But the government's position is not only consistent with the relevant treaties and statutes; it is also consistent with the public interest in protecting endangered species. The threat to the bald eagle is quite real. Recent statistics indicate that there are only 12,000 remaining bald eagles in the lower 48 states.
William H. Rehnquist: You feel the public interest is something different than the statutes and treaties involved here? That is another element of the case?
Jeffrey P. Minear: I think it is something that again should be given consideration. The statute should be construed in order to effectuate its purposes. And I think that Congress did intend to protect the bald eagle through the Bald Eagle Act.
William H. Rehnquist: Yes, but I thought you were just entering into a discussion of the public interest after having concluded your discussion of the statutory and treaties. But this is just another ramification of the treaty and legislative argument?
Jeffrey P. Minear: Yes, essentially it is, Your Honor. What I am trying to indicate is that the actual statistics that indicate the threat to the bald eagle in this case, just so that the Court understands the seriousness of the concern of the Interior Department in this area. The peak population at the Karl Mundt Wildlife Refuge near where these eagles were taken is only 120 birds. And this small refuge, which is located directly across the river from the Yankton Sioux reservation, is one of the nation's most important eagle sanctuaries. In this case, respondent himself sold seven bald eagles to undercover agents in a six-month period, and he told agents that he killed as many as 20 eagles in the course of a year. Bald eagles are also found on 105 other Indian reservations. Thus continued taking by other Indians claiming similar treaty rights poses a very real threat to the bald eagle population.
Sandra Day O'Connor: What about the golden eagle population?
Jeffrey P. Minear: It is less clear that there is an immediate threat to the golden eagle population. Since the passage of the 1962 amendments to the Bald Eagle Act, there has been some extensive... much greater protection to the eagles. Nevertheless, the Department of Interior indicates they have a total of about 1,100 eagle killing cases since 1983. Many of these are golden eagles. The total population--
Sandra Day O'Connor: Do you have comparable statistics on golden eagle population?
Jeffrey P. Minear: --I believe the best statistics that we have that I received from Interior. There are approximately 60,000 gold eagles, most of these located in the western United States. There are very few nesting pairs in the eastern United States, which used to be a portion of their natural habitat. More generally, if federal conservation statutes are subordinated to Indian hunting rights, other important species will be threatened. A number of other wildlife preserves are located in close proximity to and in some cases within Indian reservations. A number of important species, including the grizzly bear, the grey wolf, and the Florida panther, are all sometimes found on Indian lands. The Court of Appeals decision in this case seriously undermines the government's ability to enforce the Bald Eagle Act and the Endangered Species Act. We ask this Court to restore the enforcement powers that Congress intended. I would like to reserve the remainder of my time.
Warren E. Burger: Mr. Pechota.
Terry L. Pechota: Mr. Chief Justice, and may it please the Court, the government's position in oral argument and in its briefs in this case appears to be that the Bald Eagle Protection Act and the Endangered Species Act abrogated the right of Dwight Dion as a tribal member to take eagles while on Indian land, while on his reservation. In their briefs they seem to say that if it hasn't been shown that that is the case, in other words, that abrogation has not been shown under the principles enunciated by this Court, that there seems to be a limitation, and that is proper. Lastly, they argue that unless Indians are prevented from taking eagles for traditional cultural purposes, that will result in extinction of the species. I would like to address those three points here today. But before I begin, I would like to clarify what this case involves and what it does not involve. Dwight Dion, Sr., was indicted in a multicom indictment in the United States District Court of South Dakota. Some of those particular charges dealt with selling. Others, three of them, dealt with taking. The United States District Court... or rather the Eighth Circuit Court of Appeals held that he could not be charged under the Bald Eagle Protection Act or the Endangered Species Act for taking. That is all that they held. They did not hold he could not be prosecuted for selling, or any other Indian could not be prosecuted for selling. As a matter of fact, in this case it held that he could be prosecuted still, further on the three taking counts that are before this Court if the government merely showed, Number One, that he was an Indian, Number Two, it happened on Indian land, and Number Three, that it was for a commercial purpose.
Sandra Day O'Connor: And the respondent hasn't contested that?
Terry L. Pechota: The respondent has not contested that.
Sandra Day O'Connor: And you concede that the treaty does not incorporate taking for commercial purposes?
Terry L. Pechota: That is conceded for the purposes of this appeal. That is not before the Court at this time. Now, down through the ages, the life of this Court, this Court has enunciated many times the principles that are to be followed in order to abrogate a treaty, and this Court, as a matter of fact, has been in the vanguard of protecting Indian treaty rights, and that is what we are asking you to do in this case, Your Honors.
Sandra Day O'Connor: Well, I guess we first have to know whether the right to hunt to extinction of a species is included in the treaty rights.
Terry L. Pechota: Okay. First of all, I don't believe that that is in issue in this case. Number One, the bald eagle, for example, as you have talked with my counsel about, is not listed as endangered or threatened under the Endangered Species Act.
Sandra Day O'Connor: The golden eagle.
Terry L. Pechota: The golden eagle. Excuse me. Yes. It was included within the Bald Eagle Protection Act not because it was endangered or threatened, but because until it was three or four years old, it was difficult for people to tell the golden eagle from the bald eagle. People were shooting bald eagles and saying that they thought it was a golden eagle. So they included it in there. That is clear from the amendments that were enacted in 1962. At the same time that those amendments were enacted in 1962, and this goes to the extinction argument... or, excuse me. At the same time that this investigation, this Sting investigation was undergone in South Dakota from 1981 to 1983, the Department of Interior was issuing depredation permits. In other words, they were authorizing ranchers to shoot eagles because they were harm to their sheep or their cows or other types of animals, and this is admitted by the government in their brief at Footnote 8, the reply brief at Footnote 8.
Sandra Day O'Connor: Could we go back for just a moment to determine whether it is your position that the treaty gives the tribe and its members a right to hunt eagles to their extinction?
Terry L. Pechota: It is not the position here that they give the Indians that right. Number Two, I don't think that we have that kind of factual situation before the Court, and Number Three, I think we are overlooking the fact that Indian tribal governments have authority on their reservations and many of them have taken the impetus to enact ordinances that protect the wildlife that they have on their reservations from extinction or from abuse by hunting and fishing. The Navajos, for example, have one. There was another one cited in the amicus brief of the parties here today in the--
Sandra Day O'Connor: Well, if the treaty doesn't include the right to hunt to extinction, then perhaps it is open to the federal government to regulate hunting to extinction.
Terry L. Pechota: --I think that the government can abrogate a treaty, there is no doubt about it, if in fact it does it in the proper manner under the principles that have been enunciated by this Court. If Congress wants to abrogate a treaty, which they have done in the past--
Sandra Day O'Connor: But if the treaty doesn't cover it, it isn't a question of abrogation of the treaty at all.
Terry L. Pechota: --Okay. I don't believe the treaty in this case gives them the right to hunt to extinction. If you are asking whether or not the treaty in this case authorizes, gives the Yankton Sioux tribe the right to hunt and to take eagles, certainly that has to be the case. This Court has decided the Menominee case, it decided the Wynans case, the Washington Fishing Vessel case, that have said that when particular Indian tribes have entered into treaties with the United States and given up thousands and thousands of acres of land, they have reserved the right to hunt and fish on their reservation. It doesn't have to say that we have the right to hunt a particular species. Now, in the early part of this century in the Leavenworth v. Kansas Railroad case, this Court said that there has to be an express specific language of abrogation, and if there isn't, it is presumptively and conclusively shown that as a matter of fact the treaty has not been abrogated. That was an 1876 case. In the Menominee and the Washington Fishing Vessel case that was decided in the 1970's it was determined there the same way, that absent explicit language of abrogation, that the treaties would not be deemed to have been abrogated.
John Paul Stevens: May I ask one preliminary question, counsel? I am over here.
Terry L. Pechota: Yes.
John Paul Stevens: We start from the premise that there is a treaty right, and is the right one to kill the eagles, because I notice in the House legislative history there was a suggestion that historically the tribe did not actually kill the eagles, but rather trapped them and was able to get their feathers without actually destroying the eagle.
Terry L. Pechota: I think that depended on the particular tribe that was involved. There was some reference that that was one of the ways that eagles were taken by Indian tribes. In the record before the District Court there were other ways that were alluded to and described that eagles were taken by Indian tribes.
John Paul Stevens: I see. You think it is clear there was... at least there was a right... they were not, I take it, not... this is not a right to hunt and fish for purposes of food. It is only the ceremonial purpose.
Terry L. Pechota: That's correct. There was no evidence that eagles were ever used as a purpose of sustenance for tribal members.
Thurgood Marshall: Well, in this particular case it was solely for money.
Terry L. Pechota: Not... it hasn't been shown that these three taking counts, in other words, when Dwight Dion took the three eagles, or the five eagles that are involved in this case, in the three counts--
Thurgood Marshall: Well, he sold it to an agent.
Terry L. Pechota: --But it sold it later. He sold it later.
Thurgood Marshall: But he sold it.
Terry L. Pechota: He sold it. I agree that there is evidence--
Thurgood Marshall: And he got money for it.
Terry L. Pechota: --And he got money for the--
Thurgood Marshall: That is sale for profit.
Terry L. Pechota: --If in fact... if in fact--
Thurgood Marshall: If nothing. That is sale for profit.
Terry L. Pechota: --If in fact he took the eagles initially--
Thurgood Marshall: And that is what you want to protect.
Terry L. Pechota: --No.
Thurgood Marshall: You want to protest his right to kill off 100 more of these, and that is it.
Terry L. Pechota: No, all I want to protect is the right of Indian individuals to take eagles for traditional cultural purposes.
Thurgood Marshall: All 120 of them.
Terry L. Pechota: Not all 120 of them. The evidence in this case does not show that there were ever taken nearly that many on this reservation.
Thurgood Marshall: But the evidence shows that one man took 20.
Terry L. Pechota: No, the evidence--
Thurgood Marshall: Over a period of a year.
Terry L. Pechota: --The evidence is disputed on that, as I set out in my brief. The government says--
Thurgood Marshall: Whether it is disputed or not, there is evidence that one man took one-twentieth, which is of 120.
Terry L. Pechota: --There is evidence--
Thurgood Marshall: And if five more did it, that is the end.
Terry L. Pechota: --That would be correct.
Thurgood Marshall: That's right.
Terry L. Pechota: And I am not saying--
Thurgood Marshall: And you want me to sit by and see that happen.
Terry L. Pechota: --I am not saying that they should be authorized to sell those eagles or to take that particular--
Thurgood Marshall: Isn't that what is involved in this case?
Terry L. Pechota: --No, what is involved in--
Thurgood Marshall: Doesn't this case involve eagles that were sold?
Terry L. Pechota: --No, it involves eagles that were taken.
Thurgood Marshall: And sold to the agents.
Terry L. Pechota: There was a lapse of time in there between the time that they were taken and the time that they were sold. There has been no showing and no court has held--
Thurgood Marshall: Well, if there is a lapse of time, they were sold.
Terry L. Pechota: --Yes.
Thurgood Marshall: And that was the purpose of taking them.
Terry L. Pechota: I am not sure that the purpose of--
Thurgood Marshall: Well, what other purpose was there?
Terry L. Pechota: --Dwight Dion is a tribal member who by the evidence in this case had taken eagles for other purposes, for tribal members to use in cultural, traditional ways. He was the person that primarily took the eagles on that particular reservation. And in the meantime the government undertook this particular Sting operation, and he was contacted, and he did sell these eagles that he had. Now, whether he took them initially for the purpose of selling them or whether he took them for traditional cultural purposes initially is a matter that has to be determined on remand when these cases are tried if it gets that far.
Thurgood Marshall: But the eagles are gone.
Terry L. Pechota: I don't believe that the eagles are gone, Your Honor.
Thurgood Marshall: Well, those 20 are gone.
Terry L. Pechota: The 20 eagles that he took exactly are gone. I would like to talk about the Bald Eagle Protection Act in the--
Lewis F. Powell, Jr.: Before we move on--
Terry L. Pechota: --Yes.
Lewis F. Powell, Jr.: --I am over here. Before we move on, would you define what traditional purposes includes?
Terry L. Pechota: Traditional purposes include within the context of this case the right to take eagles--
Lewis F. Powell, Jr.: To do what with?
Terry L. Pechota: --To use them in religious rites that are used by the Yankton Sioux tribe of people.
Lewis F. Powell, Jr.: Did not the District Court in this case find the eagles were not used for religious purposes?
Terry L. Pechota: He found... the eagles that were taken in this case?
Lewis F. Powell, Jr.: Yes.
Terry L. Pechota: The eagles that were sold, or that were taken?
Lewis F. Powell, Jr.: Well--
Terry L. Pechota: I don't think that the District Court found that they were not taken or that they were not used for cultural purposes.
Lewis F. Powell, Jr.: --He says, "The charges against the defendant relate to the taking and sale of eagles and other migratory birds, and I conclude that the prohibition against these practices does not violate the defendant's religious rights. "
Terry L. Pechota: Okay, I think they are saying that he took them for commercial purposes, the ones that were sold.
Lewis F. Powell, Jr.: And in addition to religious purposes, what other would be included within conventional... traditional purposes?
Terry L. Pechota: Well, that would be the primary use.
Lewis F. Powell, Jr.: That is the primary one?
Terry L. Pechota: Right, within the context of this case. In applying the principles for abrogation of treaties to the Acts in this case, the Bald Eagle Protection Act and Endangered Species Act, we start with the Bald Eagle Protection Act that was passed in 1940. Nobody maintains, including the government, that there was any language in that 1940 enactment that abrogated any particular treaty right. From 1940 until 1962 that particular Act was not applied against Indians while they were on their reservation. In 1962, there were some amendments. The amendments were to increase the penalties and to include the golden eagle as a part of the particular statute. Contemporaneous almost with the enactment of that particular statute was the 1962 memorandum. That was in April. This amendment was passed in October. Where the solicitor of the Department of Interior indicated that the Bald Eagle Protection Act and the Migratory Birds Treaty Act did not apply to Indians while they were on their reservations. So, it is illogical and certainly would be not really following that if in fact their solicitor was telling them that particular Act could not be applied on the reservation that by those 1962 amendments they thought that the particular law was to be applied or Indian reservations.
John Paul Stevens: Can you shed any light on the authenticity and the authorship of this memorandum?
Terry L. Pechota: I took that quote in my brief--
John Paul Stevens: Just out of the opinion?
Terry L. Pechota: --out of the White--
John Paul Stevens: It just comes from the Office of the Solicitor--
Terry L. Pechota: --Right.
John Paul Stevens: --and we don't know just how high up the particular author was.
Terry L. Pechota: Right. And that came from the District Court decision in White. There was the permit provision that was included in that 1962 amendment, but as the Eighth Circuit Court of Appeals determined, certainly there were other explanations other than that this was to apply to the Indian reservations that could explain that permit provision in that amendment. The Eighth Circuit said that there were Indians and non-Indians outside of the reservations, that did not live on the reservations, that certainly could and probably would have been involved in Indian religious rites where these particular eagle feathers and parts of eagles could have been used and would have been necessary. So, this permit provision does not apply by its terms to Indian reservations. It applies to Indians everywhere, whether or not they are on Indian reservations. Certainly that is a logical explanation, and it would seem according to the respondent that that is not sufficient and not sufficient language to result in an abrogation of his right in this particular case. Now, from 1962 to 1973, the date of the passage of the Endangered Species Act, I was not able to find any reported cases where the Bald Eagle Protection Act was applied to Indians in criminal matters while they were on the reservation. In 1973, the Endangered Species Act was passed, and there were two provisions in that particular Act that the government maintains indicates that it was the intent of Congress to abrogate the right of Indians to take eagles for traditional cultural purposes. One of them was the exemption that was set in the Act for Alaskan natives. However, the Court must keep in mind that two years prior to 1973 Congress had passed the Alaskan Settlement Act, where the rights of natives to hunt and fish had been terminated, had been abrogated in specific language, so it was necessary to put in the Endangered Species Act some protection for the Alaskan natives and the Alaskan Indians. Indian tribes in the lower 48 states did not need that particular protection because they had the protection of their reserved rights. In addition, keep in mind that the Alaskan Indians and Alaskan natives were treated much differently than Indian tribes in the lower 48 states. They weren't treaty tribes. Earlier on this Court held that they had no self-governing rights, and there were very few reservations that were in Alaska. And so, a logical explanation for that and the only explanation is that they thought that they needed the protection that the lower 48 state Indian tribes did not need. The other provision that the government points to to show that there is an exemption or that there is an abrogation in this case was a bill that was enacted in the 92nd Congress, the Congress immediately preceding the one that passed the Endangered Species Act, which was the 93rd Congress, and in that Congress, the 92nd Congress, there were two bills, one that dealt with a specific exemption, in other words, included a specific exemption for Indians from the Act, one which did not. Both of those particular bills died with the 92nd Congress after the 92nd Congress adjourned. They were not introduced again. In the 93rd Congress the Endangered Species Act was passed, and so they argue that because these bills had been introduced in a previous Congress and died, that that is some indication that in the 93rd Congress, in its passage of the Endangered Species Act, that that is some intent that it was intended to abrogate the rights of Indians to take wildlife on their reservations for traditional cultural purposes. As the Eighth Circuit Court of Appeals held, that they would not sanction that kind of backhanded way of abrogating the treaty right, certainly this Court has held that unsuccessful attempts at legislation are not the best guides of legislative history. Certainly I question whether or not something that happened in the 92nd Congress is proper legislative history for something that subsequently took place in the 93rd Congress. They also point out in their briefs that there were some remarks of Subcommittee counsel in the 92nd Congress who questioned whether or not the Indians should be given an exemption. And of course the relevance of that is certainly questionable and of no value to the Court even if it could rise above the principles that remarks of people in opposition to legislation are given little or no weight. I submit to you that when the legislative history in these Acts are locked at, that there is no indication whatsoever of any intent on the part of Congress to abrogate Indian treaty rights, certainly not the kind of evidence, the kind of material that has to be shown under the principle that there has to be a clear expression that Indian rights are going to be abrogated either in the legislative history or either on the face of the Act. All of the provisions, both of the provisions that the government talks about in support of its position here have logical reasons for being included in this particular bill. The legislative history does not say that we intended by any of the provisions that the government points out here, that we intended to abrogate the right of Indians to hunt while on their reservation. The government also makes the point in its brief that there really is not an abrogation here, because Indians can secure eagle parts through the permit system under the Bald Eagle Protection Act. First of all, I would submit to you that any time that you have to go through an administrative procedure where that particular individual making the decision as to whether or not you are entitled to something, especially when you have a reserve right to take it in the first place, to have it, is an abrogation and limitation on the right of Indians to take eagles, and it must be so in this case. In the case of Tulee v. Washington, this Court previously held in discussing an in common right involving fishing rights of Indians in the northwest that to require them to get a state license is an abrogation of their right, and the same principle should apply in this particular case. In addition, under that permit provision, there have been no permits that have been issued to allow Indians to take eagles. All the eagle or eagle parts that Indians have been able to get have been from the Pocatel Repository in Idaho, and they come in decomposed bags where Indians have to wait a year to a year and a half to get eagles that they need and that they have the right to use in their Indian cultural, religious rights. I think it is an understatement and erroneous to say that that limitation and that permit provision is not an abrogation of Indian hunting rights as shown. Now, the government also--
Byron R. White: Is it contrary to the federal statute to just capture an eagle?
Terry L. Pechota: --It is contrary to take an eagle.
Byron R. White: In any way.
Terry L. Pechota: That's right.
Byron R. White: It doesn't make any difference whether you kill it or hurt it or not?
Terry L. Pechota: No. It is illegal to possess--
Byron R. White: Right.
Terry L. Pechota: --a particular... the government also contends here that if Indians are allowed to take eagles for traditional cultural purposes, that the eagle is going to be rendered extinct. There is nothing, absolutely nothing in the legislative histories of these bills that we are dealing with here today, the Bald Eagle Protection Act or the Endangered Species Act, to show that the impact of Indians being able to take these eagles for traditional purposes is going to have any kind of an impact whatsoever.
Thurgood Marshall: But there is no traditional purpose in this case. He sold them. Is that traditional?
Terry L. Pechota: There is evidence--
Thurgood Marshall: Or commercial?
Terry L. Pechota: --And if he sold them, and I concede that he sold them--
Thurgood Marshall: If he sold them? He did sell them.
Terry L. Pechota: --Right, he did sell them. And if--
Thurgood Marshall: Why do you keep saying traditional?
Terry L. Pechota: --If someone does sell them, then certainly there is not a traditional culture purpose, and they are not included within the holding of the Dion case. Prosecution certainly would be authorized, and if you have... something like that occurs, certainly there is something that can be done by the federal government. That is a prosecution. There has been no evidence even in the reauthorization hearings that were held that the government makes reference to in this last summer, 1985, about Indians being allowed to take these particular eagles would render them extinct. Within the context of this case, the government says that the Karl Mundt Refuge is located adjacent to the reservation. Or the record of this case, the manager of that wildlife refuge was called to testify, and he had not mentioned or he had not observed or noticed any diminution in the population of the eagles on that reserve during the time that this Sting operation was in effect for the past two years. The point of it is, even if conservation is a proper way under the Puyallup kinds of decisions to abrogate a treaty right, which I do not agree with, but even if you use that particular standard, there has to be shown something to indicate that there is an impact on the particular species by Indian takings. They have not been shown in this case at any place, so we have statutes that do not clearly abrogate treaties, nor do we have any showing that Indian takings would result in the extinction of the gold eagle or the bald eagle.
Byron R. White: If Congress had in the statute itself or in the legislative history clearly said that it is absolutely essential because of the dangers of extinction to safeguard both the bald eagle and the gold eagle, and that was a Congressional finding, would you say you nevertheless would have to have a litigation about that conclusion in the specific case?
Terry L. Pechota: I don't think you would have to have a litigation if they said, by this particular statute we clearly intend to abrogate the rights of Indians under their treaties.
Byron R. White: No, they didn't say that, but they just say in the preamble or in the body or the legislative history that we find that the bald eagle is in danger of extinction, and any taking of them must be forbidden, and in order to achieve that end we must protect the golden eagle, too.
Terry L. Pechota: I don't believe that that's sufficient to abrogate the right of Indian people to exercise their rights, their reserved rights under their treaties.
Byron R. White: Well, so in this case if there had been evidence out on about the bald and the gold eagle and the dangers and threats to them, and the judge had found that it is necessary not to recognize a treaty right in order to keep the bald eagle from being extinct, what if there had been a finding like that in this case? I take it you agree that then the treaty right would not override it.
Terry L. Pechota: No. First of all, I disagree with the Puyallup decisions. I talk about these in my brief. Second of all--
Byron R. White: Let's assume that we accept Puyallup.
Terry L. Pechota: --If you accept Puyallup and there is a finding that as a reasonable conservation measure you have to... you have to prevent Indians from taking eagles to a certain extent, then under Puyallup that would be proper.
Byron R. White: But you say that would have to be found in a case, that a Congressional finding to that effect would not suffice?
Terry L. Pechota: If in fact there was a Congressional finding under Puyallup and you agree that Puyallup should apply in this case, which I don't, then I agree that that would be sufficient. I have no further comments.
Warren E. Burger: Very well. Mr. Minear.
Jeffrey P. Minear: Mr. Chief Justice, unless the Court has questions, we will waive rebuttal.
Warren E. Burger: Very well. Thank you, gentlemen. The case is submitted.