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 Brief for the United States TABLE OF CONTENTS Question Presented Opinions below Jurisdiction Statutes involved Statement Summary of Argument Argument: I. The Yankton Sioux do not have a treaty right to hunt a species to extinction II. The BEPA and the ESA supersede any inconsistent treaty rights to take eagles Conclusion OPINIONS BELOW The January 9, 1985, opinion of the court of appeals, sitting en banc (Pet. App. 1a-23a), is reported at 752 F.2d 1261. The May 20, 1985, opinion of the court of appeals panel (Pet. App. 24a-66a) is reported at 762 F.2d 674. The September 8, 1983, order of the district court dismissing Count 12 of the indictment (Pet. App. 69a-73a) is unreported. JURISDICTION The judgment of the court of appeals (Pet. App. 67a-68a) was entered on May 20, 1985. On July 9, 1985, Justice Blackmun granted an extension of time to and including August 18, 1985, within which to file a petition for a writ of certiorari. The petition was filed on August 13, 1985, and was granted on October 15, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES INVOLVED 1. The Bald Eagle Protection Act (BEPA), 16 U.S.C. 668(a), provides in relevant part: Whoever * * * shall * * * 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, * * * shall be fined not more than $5,000 or imprisoned not more than one year or both * * *. Section 668a provides in relevant part: Whenever, after investigation, the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof * * * for the religious purposes of Indian tribes * * * he may authorize the taking of such eagles pursuant to regulations which he is hereby authorized to prescribe: * * * Provided * * * That bald eagles may not be taken for any purpose unless, prior to such taking, a permit to do so is procured from the Secretary of the Interior * * *. 2. The Endangered Species Act of 1973 (ESA), 16 U.S.C. 1532(13), provides in pertinent part: The term "person" means an individual, corporation partnership, trust, association, or any other private entity, or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State or political subdivision thereof, or of any foreign government. Section 1538(a) provides in pertinent part: (1) Except as provided in sections 1535(g)(2) (transition provisions) and 1539 (permits and exemptions) of this title, with respect to any endangered species of fish and wildlife listed pursuant to section 1533 of this title it is unlawful for any person subject to the jurisdiction of the United States to -- * * * * * (B) take any such species within the United States or the territorial sea of the United States; * * * * * (D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C)(.) Section 1539 provides in pertinent part: (e) Alaska natives (1) Except as provided in paragraph (4) of this subsection the provisions of this chapter shall not apply with respect to the taking of any endangered species or threatened species * * * by -- (A) any Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska; or (B) any non-native permanent resident of an Alaskan native village; if such taking is primarily for subsistence purposes * * *. * * * * * (4) Notwithstanding the provisions of paragraph (1) of this subsection, whenever the Secretary determines that any species of fish or wildlife which is subject to taking under the provisions of this subsection is an endangered species or threatened species, and that such taking materially and negatively affects the threatened or endangered species, he may prescribe regulations upon the taking of such species by any such Indian, Aleut, Eskimo, or non-Native Alaskan resident of an Alaskan native village. QUESTION PRESENTED Whether Indian tribunal hunting rights provide a defense to the taking prohibitions of the Bald Eagle Protection Act, 16 U.S.C. 668 et seq., or the Endangered Species Act of 1973, 16 U.S.C. (& Supp. II) 1531 et seq. STATEMENT 1. Although the bald eagle has been protected by federal statutes and regulations since 1940, it remains an endangered species throughout most of the 48 coterminous states (43 Fed. Reg. 6230 (1978)). Even in the Northwest and the upper Great Lakes Region, where the bald eagle is most frequently found, it is a threatened species (ibid.). Surveys conducted by the Fish and Wildlife Service showed only approximately 1400 nesting pairs in the 48 coterminous states in 1984. /1/ The 1984 midwinter count showed a total of 200 bald eagles in South Dakota, and 11,819 throughout 43 of the lower 48 states. /2/ This precarious situation is in part due to the widespread loss of suitable habitat, but the Service reports that "(s)hooting continues to be the leading cause of direct mortality in adult and immature bald eagles, accounting for about 40 to 50% of birds picked up by field personnel" (id. at 6232). a. In enacting the Eagle Protection Act in 1940, Congress attempted to protect this country's eagle population by imposing stringent restrictions on the taking of eagles, coupled with a total prohibition on commercial transactions in the birds (16 U.S.C. 668). Section 1 of the Act, 16 U.S.C. 668, makes it unlawful -- and subject to a maximum penalty of $10,000 and two year's imprisonment -- knowingly or wantonly to possess, take, buy, sell, barter, or transport any bald eagle or golden eagle, /3/ alive or dead, " or any part, nest, or egg thereof," except as permitted by the Act. /4/ The Act authorizes the Secretary of the Interior to permit "taking, possession, and transportation of (eagles)" for the religious purposes of Indian tribes, and for certain other very narrowly circumscribed purposes, /5/ but only when he has determined, after investigation, that such taking "is compatible with the preservation of the bald eagle or the golden eagle." 16 U.S.C. 668a. See Andrus v. Allard, 444 U.S. 51, 56-57 (1979) (contrasting "sweepingly framed" prohibitions of BEPA with its "specifically limited" exceptions). b. The Endangered Species Act of 1973, 16 U.S.C. (& Supp. II) 1531 et seq., described by this Court as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation" (TVA v. Hill, 437 U.S. 153, 180 (1978)), reflects a similar congressional concern with this nation's disappearing wildlife. The 1973 Act replaced earlier statutes authorizing the establishment of programs for habitat preservation and prohibiting the importation of wildlife threatened with worldwide extinction. Act of Oct. 15, 1966, Pub. L. No. 89-669, 80 Stat. 926 et seq.; Endangered Species Conservation Act of 1969, Pub. L. No. 91-135, 83 Stat. 275 et seq. The 1973 Act reflects congressional recognition that these limited efforts were insufficient. /6/ Section 4(a) of the ESA, 16 U.S.C. 1533(a), empowers the Secretary of the Interior to list species as either "endangered" or "threatened." /7/ The Secretary's decision to list a species is based upon such factors as present or threatened destruction of a species' habitat or range; its overutilization for commercial, recreational, scientific or educational purposes; disease; or the inadequacy of existing regulatory mechanisms (ibid.). /8/ Section 9 of the ESA, 16 U.S.C. 1538, contains the Act's prohibitions. Congress has imposed an absolute prohibition on, inter alia, the taking of any endangered species within the United States, the possession of any illegally taken endangered species, and the sale or offer for sale of any endangered species in interstate or foreign commerce. 16 U.S.C. 1538(a)(1)(B), (D) and (F). The prohibitions concerning endangered species generally apply as well to threatened species unless the Secretary by regulation provides otherwise. 16 U.S.C. 1538(a)(1)(G); 50 C.F.R. 17.31. The exceptions to these absolute prohibitions are extraordinarily narrow. Indians, Aleuts or Eskimos who are Alaskan Natives residing in Alaska, and (in some circumstances) other non-native permanent residents of Alaskan native villages may take endangered or threatened species, but only if the taking is primarily for subsistence purposes and only subject to such regulations as the Secretary may issue upon his determination that such takings materially and negatively affect the endangered or threatened species. 16 U.S.C. 1539(e). In addition, the Secretary may permit otherwise prohibited acts for scientific purposes, to enhance the propagation or survival of the affected species, or when such taking is accidental to carrying out of an otherwise lawful activity, but such permits may be issued only on the basis of stringent statutory procedures designed to assure that any adverse impact on the species involved will be minimized (16 U.S.C. 1539(a)). /9/ c. The bald eagle is also protected by two international treaties to which the United States is a party. In 1936, the United States and Mexico agreed to establish closed seasons on the taking of certain birds which migrate between those two countries. Convention Between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, 50 Stat. 1311 et seq. The only exceptions to the treaty prohibition on the taking of birds during the closed season are for private game farms, or when such species are "used for scientific purposes, for propagation or for museums." Art. II(A), 50 Stat. 1312. In 1972, the bald eagle was added to the list of birds protected by this treaty. Agreement Supplementing the Agreement of February 7, 1936, 23 U.S.T. 260 et seq. In 1976, the United States entered into a treaty with the Soviet Union for the protection of migratory birds, including the bald eagle. Convention Between the United States of America and the Union of Soviet Socialist Republics Concerning the Conservation of Migratory Birds and Their Environment, Nov. 19, 1976, 29 U.S.T. 4647 et seq. In the treaty, the parties agreed to "prohibit the taking of migratory birds," outside hunting seasons established by the parties. Art. II(1), 29 U.S.T. 4651. Certain exceptions are specified for takings for "scientific, educational, propagative, or other specific purposes not inconsistent with" the purposes of the Convention, and for takings for the "purpose of protecting against injury to persons or property." Art. II(1)(a) and (d), 29 U.S.T. 4652. The treaty also contains an exception for the taking of migratory birds and the collection of their eggs by the "indigenous inhabitants" of certain regions in the Soviet Union and the State of Alaska, where the taking is for the inhabitants' own nutritional and other essential needs." Art. II(1)(c), 29 U.S.T. 4652. The United States has implemented both these treaties in the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703-711; 16 U.S.C. 712, 715(j). See 16 U.S.C. 1531(4). 2. Beginning in late 1980, the United States Fish and Wildlife Service (FWS) conducted an undercover investigation into the illegal taking and selling of bald and golden eagles and other migratory birds in South Dakota. /10/ The investigation was prompted by information that an abnormal number of eagles were being shot or trapped around the Karl Mundt National Wildlife Refuge, near Lake Andes, South Dakota, and that features from eagles killed in South Dakota were being sold in New Mexico (III. Tr. 14-15). FWS agent Nando Mauldin, acting in an undercover capacity as a trader in Indian crafts, wrote to several individuals in South Dakota whose names he had obtained in New Mexico as being possible sources for eagle feathers. In response to one of these letters, Joe Abdo telephoned Mauldin to advise him that he did have eagle feathers, and invited Mauldin to South Dakota to meet with a number of sellers of eagle feathers. III Tr. 15-16. On February 25, 1981, Mauldin went to South Dakota where Abdo introduced him to respondent, one of the "main actors in the protected bird and feather trade" (Pet. App. 28a). Over the next two years, FWS agents purchased from respondent the carcasses of seven bald eagles and one golden eagle, as well as numerous Indian crafts containing the feathers of various birds protected by the BEPA, the ESA, and the MBTA (III Tr. 16-19, 21-22, 43-45, 58-61, 62, 101-104, 105-106, 109-110). Respondent is an enrolled member of the Yankton Sioux Tribe (J.A. 26-29). The Yankton Sioux reservation is located in southeastern South Dakota, directly across the Missouri River from the Karl Mundt National Wildlife Refuge. This refuge, which was established for the express purpose of protecting bald eagles, is one of the largest wintering areas for the bald eagle in the lower 48 states (II Tr. 158-163). Between 200 and 300 eagles use the refuge each year, with a peak population at any one time of approximately 120 eagles (ibid.). The eagles are attracted to the refuge because of the open water from a nearby dam on the Missouri River, the easy access to fish, and the plentiful cottonwood groves along the river that provide necessary protection for winter roosting areas (id. at 163). In a pretrial hearing, respondent testified that he was on the reservation when he killed the eagles (J.A. 28-29). During the undercover operation, however, respondent told the agents that he went to the Missouri River to hunt eagles, and that there were eagles on both sides of the river. /11/ On one occasion when respondent offered to get additional eagles for the agents, he told them he intended to go into the refuge itself (J.A. 36). /12/ 3. In the district court, respondent was charged with one count of taking a golden eagle in violation of the BEPA (Count 12); two counts of taking bald eagles in violation of the ESA (Count 8 and 10); and ten counts of selling the whole carcasses or parts of eagles and other migratory birds in violation of the BEPA and MBTA. Respondent moved before trial to dismiss all counts on the basis of United States v. White, 508 F.2d 453 (8th Cir. 1974), alleging that all the takings occurred on the Yankton Sioux Reservation. In White, the Eighth Circuit held that the BEPA "taking" prohibitions did not apply to a Chippewa Indian exercising treaty hunting rights on his reservation, because Congress had not expressed a sufficiently clear intent to abrogate those rights when it enacted the statute. Respondent argued that the White rationale should be extended to include takings of wildlife protected by the ESA and sales of birds protected by the BEPA and MBTA. The district court, construing White narrowly, dismissed only Count 12, which charged a taking in violation of the BEPA. It refused to dismiss Counts 8 and 10, which charged takings in violation of the ESA, concluding that in that Act Congress had intended to abrogate treaty hunting rights as to endangered species. It reasoned that the right to hunt bald eagles "would have no value if Bald Eagles became extinct" (Pet. App. 71a). The district court also refused to dismiss the ten counts charging sales of eagles and other migratory birds. The court concluded that even if the BEPA and MBTA did not abrogate respondent's treaty right to hunt the protected birds on his reservation, those Acts could "properly prohibit the commercial sale" of those birds. Pet. App. 71a. A jury convicted respondent on the two remaining taking counts and on eight of the sales counts. /13/ Respondent appealed his convictions on these counts. The United States appealed the district court's dismissal of Count 12. 4. On appeal, respondent's case was consolidated with the appeals of three other Indians convicted in prosecutions arising out of Operation Eagle: respondent's son, Lyle Dion; Asa Primeaux, Sr.; and Primeaux's son-in-law, Terry Fool Bull. /14/ Only respondent and his son asserted a treaty defense to their convictions at the appellate stage. /15/ Because the United States was seeking the overruling of United States v. White, supra, it requested an en banc hearing at the outset of the appeal. Although the appellate court initially denied that request, a three-judge panel, after oral argument, transferred the treaty issues to the en banc court for consideration. The en banc court reaffirmed White and extended its application to criminal prosecutions under the Endangered Species Act (Pet. App. 22a). /16/ First, the court found that the Dions had a treaty right to hunt eagles but not to sell them or other migratory birds. Because there was no treaty right to sell, the court reasoned that there was also no treaty right to take eagles for a commercial purpose. Pet. App. 8a-9a. Relying upon White, the court reaffirmed that it would require an express reference to treaty rights either in the statute itself or in its legislative history before it would find a congressional abrogation of these rights. Pet. App. 14a-15a. The court did not find such an express statement in either the BEPA or the ESA. Pet. App. 19a-22a. /17/ The court also rejected the government's argument, based upon the Puyallup trilogy, /18/ that generally applicable federal conservation statutes may limit the exercise of Indian hunting rights. In contrast to the Puyallup cases, which the court stated involved a "shared" treaty right -- i.e., the right to take fish in common with non-Indians -- the court here found that the Yankton Sioux would not have understood the treaty "as permitting other sovereigns to regulate their exclusive on-reservation treaty hunting rights." Pet. App. 19a. The court therefore affirmed the district court's dismissal of Count 12 against respondent, reversed his convictions on Counts 8 and 10, and affirmed his convictions on the eight counts charging illegal sales. Because respondent had no treaty right to take eagles or other protected birds for a commercial purpose, however, the court stated that the government was free to retry respondent on Counts 8 and 10 if it could prove, under proper instructions, that his takings were commercially motivated. Pet. App. 22a-23a. /19/ For the same reasons, the en banc court reversed Lyle Dion's taking conviction and affirmed the district court's refusal to dismiss the count charging an illegal sale (id. at 23a). The en banc court then remanded all four cases to the panel for determination of the remaining nontreaty defenses. The panel subsequently reversed Lyle Dion's and Terry Fool Bull's convictions outright, holding that they were entrapped as a matter of law (Pet. App. 65a-66a). The panel rejected respondent's claim that the taking and selling prohibitions of the BEPA, ESA and MBTA, as applied to him, violated his First Amendment right of religious freedom. The panel found that Dion was killing eagles "for commercial gain and not for religious purposes," thus no religious freedom issue was presented. The panel also rejected the other nontreaty defenses raised by Dwight Dion and Asa Primeaux, Sr. /20/ SUMMARY OF ARGUMENT The treaty establishing the Yankton Sioux Reservation contains no express reservation of hunting rights. While such rights may legitimately be implied, there is no justification for inferring that they permit the treaty Indians to hunt any species to extinction. The parties to the treaty, who assumed that supplies of wildlife were inexhaustible, cannot reasonably be thought to have intended to reserve any such right to the Indians. It is particularly unlikely that the Indians would have demanded, and the federal government have granted, the right to exterminate the eagle, a species that both parties had a particular interest in preserving. This Court's Puyallup decisions (see note 18, supra) confirm that there is no federal treaty right to hunt any wildlife to extinction. Instead, the migratory nature of wildlife means that the federal conservation laws, to be effective, must also regulate Indian takings to assure the survival of seriously endangered wildlife. In any event, the Bald Eagle Protection Act and the Endangered Species Act clearly limit any treaty rights respondent might otherwise have to take the wildlife protected by those Acts. The language and legislative histories of both statutes show that Congress focused on the precise problem of Indian hunting of the protected wildlife, carefully weighed the Indian interests against the need to protect the wildlife involved, and struck a careful balance by permitting only specified narrow takings: in the BEPA for the religious purposes of Indian tribes, and in the ESA for the subsistence needs and economies of certain Alaskan natives. In both cases, even those takings are subject to control by the Secretary of the Interior as necessary to protect the species from extermination. Congress's concern with the effects of Indian on-reservation hunting of limited populations of endangered species, and particularly the bald eagle, was entirely reasonable, given the small populations of wildlife involved, the locations of many of their habitats on or near reservations, and the economic and other incentives for the Indians to hunt them, all exemplified by this case. In sum, although an intent to limit Indian treaty rights is not to be lightly inferred, the instant statutes cannot reasonably be interpreted in any other way. ARGUMENT I. THE YANKTON SIOUX DO NOT HAVE A TREATY RIGHT TO HUNT A SPECIES TO EXTINCTION The court below based its holding that the BEPA and ESA prohibitions do not apply to respondent's non-commercial taking upon its conclusion that the Yankton Sioux Indians "would have understood (their) treaty as reserving in them the right to hunt eagles on their reservation, at least for traditional purposes" (Pet. App. 8a (footnote omitted)). We submit, however, that the pertinent treaty cannot properly be construed as granting respondent a right to hunt eagles, or any other endangered species, to the point of extinction. /21/ 1. In 1858, the United States negotiated a treaty with the predecessor of the Yankton Sioux Tribe in which the Yanktons ceded and relinquished to the United States all lands claimed by the tribe except for a 400,000 acre tract of land. Treaty with the Yankton Soux, Apr. 19, 1858, art. I, 11 Stat. 744. The 1858 Treaty made no express reservation of any hunting rights on either ceded or retained lands, although an 1851 Treaty with certain bands of the Sioux Nation (including the Yankton Sioux), and other plains Indians, had recognized each tribe's territory and reserved to the tribes the "privilege of hunting, fishing, or passing over" each other's territory. Treaty of Forth Laramie, Sept. 17, 1851, art. 5, 11 Stat. 749, reprinted in C. Kappler, Indian Affairs -- Laws and Treaties 595 (1904). /22/ In Menominee Tribe v. United States, 391 U.S. 404, 406 (1968) (citation omitted), this Court held that a treaty that granted lands for a home, "'to be held as Indian lands are held,'" included the right to hunt and fish on reservation lands even though the treaty was silent as to such rights. The Court, however, refused to determine "the precise nature and extent" of those hunting and fishing rights. Id. at 407. See also United States v. Winans, 198 U.S. 371, 384 (1905); Minnesota v. Hitchcock, 185 U.S. 373, 389-390 (1902); United States v. White, 508 F.2d 453, 457 (8th Cir. 1974). We agree that rights to hunt and fish are implicit in treaties setting aside land for use by Indians as a reservation, but the rationale for such an implication does not justify extending that right to permit hunting to the point of extinction. This Court has emphasized that Indian treaties "cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them." Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978). The parties to nineteenth century Indian treaties simply did not consider whether the right to hunt or fish included the right to extirpate a species. Instead, as this Court noted in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 668-669 (1979), the parties believed that our wildlife resources were "inexhaustible" and did not contemplate any need for their conservation. Given this historical setting, there is no basis for supposing that, had the present threat been contemplated, the Indians would have insisted on, and the United States would have conceded, an untrammeled right to hunt eagles regardless of the fate of the species. See New York ex rel. Kennedy v. Becker, 241 U.S. 556, 563 (1916). Indeed, in this case, uncontroverted expert testimony reveals that the Indians considered bald and golden eagles to be sacred, and that traditionally eagles were never hunted for food. II Tr. 9, 13, 39, 49-50, 61-62. /23/ At least one native religion, the Native American Church of North America, is also opposed to the killing of eagles. Id. at 10. Because of the special religious and cultural significance of the eagle to the Indians, they have a particular interest in preserving that species for future generations. Ibid. See also H.R. Rep. 1450, 87th Cong., 2d Sess. 4 (1962) (letter from Ass't Secretary of the Interior supporting extension of BEPA to protect golden eagles, noting importance of golden eagle "in enabling many Indian tribes * * * to continue ancient customs and ceremonies that are of deep religious or emotional significance to them," and concluding that "it is evident that the Indians are deeply interested in the preservation of both the golden and the bald eagle"); S. Rep. 1986, 87th Cong., 2d Sess. 6 (1962) (same); 108 Cong. Rec. 22272 (1962) (same). To construe Indian treaties -- made by and on behalf of entire tribes -- as permitting an unrestricted right to hunt eagles and so to threaten those species with extinction would be to elevate the hunting rights of present day Indians over the religious and cultural rights of future generations of Indians and the interest of all citizens in the preservation of wildlife. It is not appropriate, in the name of preserving Indian hunting rights, to leave reservation Indians "free to destroy the subject of the power" (Kennedy v. Becker, 241 U.S. 556, 563 (1916)). 2. This Court's Puyallup decisions confirm that Indian treaty rights do not extend to hunting a species to extinction. Although it is clear that a state has no power to abrogate Indian treaties, and consequently no power to restrict valid treaty rights (see, e.g., Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, No. 83-2148 (July 2, 1985); New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 337-338, 342 (1983); Puyallup III, 433 U.S. at 176 n.15), this Court in Puyallup II emphasized the inherent limitation on treaty hunting and fishing rights (414 U.S. at 44, 49 (1973)): We do not imply that these fishing rights persist down to the very last steelhead in the river. Rights can be controlled by the need to conserve a species; and the time may come when the life of a steelhead is so precarious in a particular stream that all fishing should be banned until the species regains assurance of survival. The police power of the State is adequate to prevent the steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets. The Court has indicated, moreover, that on-reservation fishing and hunting rights derived from a treaty with the United States are not absolute. See Puyallup III, 433 U.S. at 176 ("it would be decidedly unwise, if Puyallup treaty fishermen were allowed untrammeled on-reservation fishing rights"); see also Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. at 684-687. The Court's conclusion that Indian fishing rights do not "persist down to the very last steelhead in the river" (Puyallup II, 414 U.S. at 49) was not, as the court below concluded (Pet. App. 19a), limited to the situation where the asserted right is shared by treaty with non-Indians. In New Mexico v. Mescalero Apache Tribe, 462 U.S. at 332 n.15, this Court explained that its Puyallup decisions were based in part upon the state's "interest in conserving a scarce, common resource." Eagles and other wildlife protected by the federal conservation statutes are precisely such a resource. The migratory nature of this wildlife gives the tribes, the states and the federal government a common interest in the conservation of the species. Each entity can frustrate the efforts of the others -- specifically, the federal government cannot assure the conservation of a species such as the bald eagle if the tribes are not subject to regulation, since a tribe, because of a species' migratory nature, could cause its destruction. Compare Missouri v. Holland, 252 U.S. 416 (1920); Kennedy v. Becker, 241 U.S. at 563. /24/ This point is dramatically illustrated by this case, where the testimony shows that respondent shot the eagles along the Missouri River opposite a federal wildlife refuge established precisely in order to preserve the scarce nesting places of the eagle (see page 11, supra). It is abundantly clear that non-Indians, as well as Indians, have an interest in avoiding the eradication of a scarce, common resource: eagles and other endangered species. The rationale of the Puyallup cases precludes the conclusion of the court below that Indian treaty rights are broad enough to provide a defense to reasonable, necessary, and non-discriminatory federal conservation statutes. /25/ II. THE BEPA AND THE ESA SUPERSEDE ANY INCONSISTENT TREATY RIGHTS TO TAKE EAGLES Even if, contrary to our submission, this Court concludes that the 1858 Yankton Sioux Treaty could be interpreted as granting to treaty Indians an unfettered right to take eagles and other endangered species on the reservation, it is clear that this treaty right was at the least suspended by the BEPA and the ESA. It is well settled that, at least in the absence of pertinent treaty provisions or statutes to the contrary, federal laws of general applicability apply to Indians and their property interests. FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116, 120-123 (1960). /26/ General laws may also override contrary treaty and statutory provisions where Congress has demonstrated the necessary intent to abrogate or modify such provisions. Menominee Tribe v. United States, 391 U.S. at 413; Lone Wolf v. Hitchcock, 187 U.S. 553, 565-566 (1903). We may assume, for purposes of this case, that an intent to limit Indian treaty rights must be clear from the face of the federal statute or its legislative history. See, e.g., Menominee Tribe v. United States, 391 U.S. at 413 and cases there cited. But see Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 n.4 (1977), citing Mattz v. Arnett, 412 U.S. 481, 505 (1973); United States v. Fryberg, 622 F.2d 1010 (9th Cir.), cert. denied, 449 U.S. 1004 (1980). Both statutes here involved and their legislative histories amply meet that standard. 1. Both statutes, on their face, show that Congress considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statutes, and provided specific, narrow exceptions that precisely delineated the extent to which Indians would be permitted to continue to take the protected wildlife. The BEPA empowers the Secretary to issue permits authorizing the taking of bald and golden eagles "for the religious purposes of Indian tribes," /27/ but only when he determines that such takings are compatible with the preservation of the species (16 U.S.C. 668a). /28/ The recognition of special Indian interests in the ESA is even narrower. The EAS's prohibitions apply to "any person subject to the jurisdiction of the United States" (16 U.S.C. 1538(a)(1)), and the definition of "person" does not exclude Indians (16 U.S.C. 1532(13)). Instead, the ESA contains a limited provision allowing any "Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska" or any "non-native permanent resident of an Alaskan native village" to take an endangered species, but only if the taking is "primarily for subsistence purposes." 16 U.S.C. 1539(e)(1)(A) and (B). And even this subsistence taking may be restricted by regulation if the taking "materially and negatively affects" an endangered or threatened species. 16 U.S.C. 1539(e)(4). Congress has thus focused on the effect of Indian hunting on the statutory objectives, and defined the precise extent that Indians are to be permitted to take the protected wildlife; it simply defies common sense to assume that Congress also intended, sub silentio, to permit the continuation of a far broader general treaty right to on-reservation hunting of the newly-protected species. Thus, the implication of such a continuing right in the face of this express statutory language ignores the plain language of the statutes. This, of course, a court is not free to do. See, e.g., Maine v. Thiboutot, 448 U.S. 1, 8 (1980); United States v. Oregon, 366 U.S. 643, 648 (1961); Gemsco, Inc. v. Walling, 324 U.S. 244, 260 (1945). 2. If there were any doubt on this score, it would be foreclosed by the legislative history of each Act. a. The House report on the 1962 amendment to the BEPA specifically noted that the decline in the golden eagle population was due in part to the killing of these eagles by Indians: Certain feathers of the golden eagle are important in religious ceremonies of some Indian tribes and a large number of the birds are killed to obtain these feathers, as well as to provide souvenirs for tourists in the Indian country. H.R. Rep. 1450, 87th Cong., 2d Sess 2 (1962). /29/ The Department of the Interior advocated adoption of the 1962 amendment to the BEPA, which included golden eagles within the purview of the Act, but only if the Act was also amended to "permit the Secretary of the Interior, by regulation to allow the use of eagles for religious purposes by Indian tribes." Letter from Ass't Secretary of the Interior, reprinted at S. Rep. 1986, 87th Cong., 2d Sess. 5, 6 (1962); H.R. Rep. 1450, 87th Cong., 2d Sess. 3 (1962); 108 Cong. Rec. 22272 (1962). Congress acceded to this request by adding the limited "religious purposes" exception to the BEPA. It is thus clear that Congress thought that the Bald Eagle Protection Act, as adopted in 1940 and as amended in 1962, fully applied to Indians, subject only to the special permit exemption for Indian religious ceremonies. United States v. Fryberg, 622 F.2d 1010, 1014-1015 (9th Cir.), cert. denied, 449 U.S. 1004 (1980). The suggestion of the court below, quoting United States v. White, supra, that the "religious purposes" exception "'is not limited to the taking of eagles by Indians or to the taking of eagles on Indian reservations'" (Pet. App. 21a) assumes that Congress could have deemed it appropriate to permit non-Indians to hunt eagles, on or off a reservation, in order for Indian tribes to obtain enough eagle parts for their religious purposes. /30/ Nothing in the legislative history supports such a strained interpretation of the Act. Nowhere did Congress suggest in any way that this was its intent. The Department of the Interior, which advocated the exception in the first instance, never suggested this interpretation during the legislative process. Moreover, it has never subsequently construed the provision in this manner. Three months after adoption of the amendment, Interior promulgated a regulation which authorized permits only "to those individual Indians who are authentic, bona fide practitioners of such religions." 28 Fed. Reg. 976 (1963). Present regulations require an applicant for such a permit to submit a certification from the Bureau of Indian Affairs that he is in fact an Indian. 50 C.F.R. 22.22(a)(5). Interior's contemporaneous and long-standing interpretation of the statute it is charged with administering is entitled to great deference. United States v. Clark, 454 U.S. 555, 565 (1982). b. The legislative history of the Endangered Species Act of 1973 also clearly demonstrates that Congress intended its prohibitions to apply to Indians, except to the extent they were specifically exempted. In 1972, Congress considered, but did not pass, two companion bills submitted by the Administration that closely paralleled the bill it enacted in 1973. As proposed by the Department of the Interior, however, the 1972 bills (H.R. 13081, 92d Cong., 2d Sess.; S. 3199, 92d Cong., 2d Sess.) specifically exempted, in Section 5(a)(2), "American Indians, Aleuts, or Eskimos who take endangered species for their own consumption or ritual purposes in accordance with a treaty or pursuant to Executive Order or federal statute." /31/ In Senate hearings on S. 3199, 92d Cong., 2d Sess. (1972) (the Administration bill) and S. 3818, 92d Cong., 2d Sess. (1972) (a similar bill to protect endangered species), a high ranking official of the Interior Department objected to the deletion in S. 3818 of the exemption for American Indians, Aleuts and Eskimos and urged the Committee to "adopt language as found in section 5(a)(2) of S. 3199." Endangered Species Conservation Act of 1972: Hearings on S. 249, S. 3199, and S. 3818 Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92d Cong., 2d Sess. 71 (1972). The Committee did not comply with this request. In the House hearings on H.R. 13081, /32/ subcommittee counsel questioned the desirability of the Section 5(a)(2) exception, remarking: That troubles me a great deal, because it occurs to me that we can find ourselves in a situation where if, say, the bald eagle were important to a tribe of Indians, and if they were, in fact, threatened with extinction, we could find ourselves in the position of presiding over the demise of that population or even species, certainly, in the long run, to the injury of the Indians. Chairman Dingell agreed (1972 House Hearings 145, supra note 32). In response to a request by the Subcommittee about the need for, and effects of, such a broad exception, the Department of the Interior submitted a list of "(s)pecies that may be endangered on Indian Lands," and noted that "(a)lthough it is axiomatic that Congress may, by statute, extinguish treaty-secured hunting and fishing rights, it is equally clear that the courts do not lightly impute to Acts of Congress an intention to extinguish these rights" (id. at 144 (citations omitted)). /33/ In the bill which became the ESA, Congress adopted a somewhat different approach. After considering testimony concerning the importance of the taking of bowhead whales to the subsistence economies of certain Alaskan native villages, /34/ the Senate included the current exemption to permit the continuation of this taking, and that exemption was accepted by the Conference Committee. H.R. Conf. Rep. 93-740, 93d Cong., 1st Sess. 27-28 (1973). On the Senate floor, it was explained that the provision covered only the inhabitants of approximately seven villages along the northwest coast of Alaska. 119 Cong. Rec. 25677 (1973). Thus, the provision that in effect replaced Section 5(a)(2) of the 1972 bills provides precisely for a much narrower exception. As this Court noted in TVA v. Hill, 437 U.S. at 188 (emphasis in original): In passing the Endangered Species Act of 1973, Congress was also aware of certain instances in which exceptions to the statute's broad sweep would be necessary. Thus, Section 10, 16 U.S.C. Section 1539 (1976 ed.), creates a number of limited "hardship exemptions," none of which would even remotely apply to (respondent). In fact, there are no exemptions to the Endangered Species Act for (Indian treaty rights), meaning that under the maxim expressio unius est exclusio alterius, we must presume that these were the only "hardship cases" Congress intended to exempt. In sum, when considering each Act, Congress addressed the extent to which it should apply to Indians, and determined that Indians should be granted only very narrowly circumscribed exemptions from the statutory provisions. It is not the function of the courts to expand those exemptions. Where, as here, the intent of Congress is clear, a court is not free to ignore that intent, even where Indian treaty rights are involved. See Oregon Dep't of Fish & Wildlife v. Klamath Indian Tribe, No. 83-2148 (July 2, 1985), slip op. 12, 21. 3. The effect of unlimited Indian hunting on the endangered wildlife population could be very serious. Respondent estimated that he himself killed 20 eagles a year, and in fact he sold seven bald eagles to the agents in about two years. The peak eagle population at the Karl Mundt refuge, one of the largest wintering areas for the eagle, is only 120 birds (II Tr. 158-163). In addition, substantial numbers of the total national population of a variety of other federally protected endangered and threatened species are within easy access of Indians who may wish to hunt them. /35/ Congress was well aware of this risk. See 1972 House Hearings 143-144 (Dep't of Interior supplies, in response to Committee request, a list of "native American species which could appear on our lists and which may occur in lands that are controlled by American Indians"). The United States contains more than 240 Indian reservations, with a population exceeding 750,000 Indians. Bureau of Indian Affairs, U.S. Dep't of Interior, Local Estimates of Resident Indian Population and Labor Force Status: January 1983, Tables 1, 3 (Indians Living on or Adjacent to Reservations). Many of the 431 National Wildlife Refuges within the United States are near reservations. Several, including the Karl Mundt Refuge, border on reservations or are separated from them only by rivers in which the eagles and other wildlife live or seek fish or waterfowl. Of course, commercially motivated takings, even on Indian reservations, remain at least theoretically subject to prosecution under the decision below. /36/ Despite that restriction, however, the court's reading of the BEPA and the ESA would substantially impede the prosecution of Indian hunters of threatened and endangered species, thus increasing their incentive to take wildlife and hindering efforts to protect the various populations. Under that reading, the government would be required to prove either that the protected wildlife was not taken on the reservation -- which might be difficult or impossible, particularly where a wildlife refuge borders the reservation /37/ -- or that it was taken for a commercial purpose. It is not clear that a subsequent sale of the wildlife would suffice to establish such commercial intent in the taking. Here, despite undisputed evidence that respondent sold the birds to the agents, the court refused to find a commercial taking as a matter of law, and instead remanded the takings counts of law, and instead remanded the takings counts for retrial "under proper instructions" (Pet. App. 22a-23a). Moreover, like problems might attend the enforcement of other federal conservation statutes. Congress, however, prescribed a more effective protection for the endangered wildlife that are our common heritage. This Court should restore fully the ability of the federal government to enforce these important laws. CONCLUSION 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 F. HENRY HABICHT II Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General DONALD A. CARR CLAIRE L. McGUIRE JAMES C. KILBOURNE Attorneys DECEMBER 1985 /1/ Region 2, Fish and Wildlife Service, Regional Resource Plan 320 (Aug. 17, 1984). /2/ National Wildlife Federation Press Release No. 84075 (Sept. 4, 1984). /3/ The Act originally applied only to bald eagles. It was amended in 1962 to cover golden eagles as well. Although not quite so scarce as bald eagles, golden eagles are also threatened with extinction, and are difficult to distinguish from bald eagles before maturity. S. Rep. 1986, 87th Cong., 2d Sess. 6 (1962); Joint Resolution of Oct. 24, 1962, Pub. L. No. 87-884, 76 Stat. 1246. /4/ Each taking or other prohibited act with respect to a single eagle constitutes a separate offense (16 U.S.C. 668(a)). A civil penalty of up to $5,000 is also provided for each violation of the Act; neither a knowing nor a wanton violation need be shown for assessment of the civil penalty. Compare 16 U.S.C. 688(b) with 16 U.S.C. 668(a). /5/ I.e., for the scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or of golden eagles as necessary to protect wildlife or agricultural interests. The Secretary may also permit the taking, transportation, and possession for falconry of golden eagles that would otherwise be subject to taking because of depredations on wildlife or livestock, and the taking of golden eagles nests that interfere with resource development or recovery operations. 16 U.S.C. 668a. /6/ Worldwide concern with the precarious situation of many kinds of wildlife is reflected in the Convention of International Trade in Endangered Species of Wild Fauna and Flora (CITES), opened for signature Mar. 3, 1973, 27 U.S.T. 1087 et seq. an international agreement to restrict trade in endangered species, which was implemented by the ESA (16 U.S.C. 1538(c)). /7/ An "endangered" species is a species which is "in danger of extinction throughout all or a significant portion of its range." 16 U.S.C. 1532(6). A "threatened" species is a species which is "likely to become an endangered species within the foreseeable future." 16 U.S.C. 1532(20). /8/ The Secretary is directed to publish in the Federal Register a list of all endangered and threatened species, specifying, for each such species, the portion of its range over which it is endangered or threatened. The current list appears at 50 C.F.R. 17.11(h). The bald eagle is listed as threatened in Washington, Oregon, Wisconsin, Minnesota and Michigan. It is endangered in all the other lower 48 states, including South Dakota. The golden eagle is not currently listed. The bald eagle is also listed in Appendix I of CITES, supra note 6, receiving the most stringent protection under that international treaty. 50 C.F.R. 23.23. /9/ The Act also contains limited interim measures to ameliorate the effect of the new legislation of those engaged in previously lawful occupations (16 U.S.C. 1535(g)(2), 1539(b)). /10/ Operation Eagle resulted in charges against more than 40 individuals. Many of these were Indians who live on or near the Yankton Sioux Reservation (III. Tr. 65-66). /11/ GXs 14, 16, 17; III Tr. 42, 52, 100 (tape recordings of conversations with respondent on December 13, 1982, December 7, 1982, and March 10, 1982, respectively). Transcripts of the tape recordings, which were provided for the jury's use during trial, were made a part of the record, although they were not admitted as exhibits (III Tr. 52-53, 100-101). Copies of the pertinent portions of the transcript are included in the J.A. 37-43. /12/ Respondent told the agents that he killed 15 to 20 eagles a year, that he had killed eagles for years, and that a number of people in the Indian community depended on him to get eagle feathers (III Tr. 22, 33). /13/ The government dismissed two of the sales counts at the start of the trial (III Tr. 5-6). /14/ Asa Primeaux, Sr., was convicted on eight counts of selling bald and golden eagles and other migratory birds, or parts thereof, in violation of the BEPA and the MBTA. Lyle Dion and Terry Fool Bull were each convicted on one count of taking a bald eagle in violation of the ESA and one count of selling it in violation of the MBTA (Pet. App. 35a, 55a). /15/ Terry Fool Bull is an enrolled member of the Rosebud Sioux Tribe, but the violations with which he was charged occurred on the Yankton Sioux Reservation. Asa Primeaux, Sr., an enrolled member of the Yankton Sioux Tribe, was convicted of selling protected birds, but not of taking any birds. Neither pursued the treaty defense on appeal. See Pet. App. 4a n.4 (incorrectly implying that Primeaux is not a Yankton Sioux). /16/ Judges McMillian, Bright and Fagg dissented; they would have overruled White (Pet. App. 23a). /17/ Because the only charges under the MBTA involved sales, not takings, the courts did not consider whether the MBTA abrogated treaty rights (Pet. App. 10a-11a). /18/ Puyallup Tribe v. Department of Game (Puyallup I), 391 U.S. 392 (1968); Department of Game v. Puyallup Tribe (Puyallup II), 414 U.S. 44 (1973); Puyallup Tribe, Inc. v. Department of Game (Puyallup III), 433 U.S. 165 (1977). /19/ As to Counts 8 and 10, the court stated that the jury must determine whether respondent was a member of the Yankton Sioux Tribe; whether the takings occurred on the Yankton Sioux Reservation; and if the takings did occur on the reservation, whether or not the takings were for commercial purposes (Pet. App. 22a-23a). The first two facts were essentially undisputed (see pages 10-11 & note 11, supra), as was the fact that respondent sold the eagles to the agents (II Tr. 223-226; III Tr. 35-46, 183-186). The court did not consider whether the government could try respondent on Count 12 under the same circumstances. /20/ The court of appeals subsequently denied the government's petition for rehearing and rehearing en banc on the entrapment issue (J.A. 44). The government did not petition this Court for a writ of certiorari on that issue. /21/ In asserting that the record in this case contains no evidence that Indian hunting threatens the eagle with extinction (Pet. App. 18a n.14), the court below seriously misapprehended the statutory schemes of both the BEPA and the ESA. In enacting the BEPA, Congress itself made the determination that bald (54 Stat. 250-251)and golden (76 Stat. 1246) eagles were in fact so threatened with extinction that all takings must be prohibited, subject only to certain very narrow exceptions, available only when the Secretary makes a specific finding that the taking is compatible with the continued existence of the species (16 U.S.C. 668a). In the ESA, the finding that a particular species is in danger of extinction, or likely to become endangered in the near future (16 U.S.C. 1532(6) and (2)) is a pre-condition to its listing, and the application to it of the statute's protections. 16 U.S.C. 1533, 1538; 50 C.F.R. 17.31(a). There is accordingly no need to establish anew the threat of extinction in individual prosecutions under these Acts. It is, in any event, clear that Indian hunting is a potentially serious threat to the attainment of the purpose of both the BEPA and the ESA. See pages 31-34 infra. /22/ In the 1858 Treaty, the Yankton Sioux agreed to -- relinquish and abandon all claims and complaints about or growing out of any and all treaties heretofore made by them or any other Indians, except their annuity rights under the treaty of Laramie, of September 17 A.D. 1851. Art. I, 11 Stat. 744. Thus, the 1858 Treaty extinguished whatever privilege the Yankton Sioux may have retained under the 1851 Treaty to hunt on lands not included within the 1858 reservation. /23/ The House Committee considering the 1962 amendments to the BEPA heard similar testimony (1962 -- Miscellaneous Fish Wildlife Legislation: Hearings Before the Subcomm. on Fishery and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 87th Cong., 2d Sess. 35 (1962)): The Indians themselves did not kill (the eagles). * * * * * The Indians dug holes in the plains, secreted themselves underneath, and put carrion on top. They waited there until the eagle came down, reached up between the sticks, seized the eagle (by) the legs, and kept him alive throughout the summer period for him to drop his feathers and then it was released. Compare J.A. 18, 20-21. /24/ See note 35, infra. /25/ This case does not involve, and we accordingly do not here address, any question concerning the scope of a state's power to enforce a state statute designed to protect a species from extinction against hunting by Indians on their reservation. /26/ There is no assertion here of any treaty right to exclude non-Indians from the reservation. This case does not, therefore, involve any question of whether Tuscarora has been limited by Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982), recognizing such a right to exclude as an attribute of tribal sovereignty in upholding a tribal power to tax non-Indians entering the reservation for commercial purposes. Jicarilla, of course, did not involve any federal statutory obligations. Compare Donovan v. Coeur d'Alene Tribal Farm, 751 F.2d 1113, 1116-1118 (9th Cir. 1985), with Donovan v. Navajo Forest Products Industries, 692 F.2d 709, 713-714 (10th Cir. 1982). /27/ There is no merit to the suggestion of the court below (Pet. App. 21a) that the quoted language refers to takings by non-Indians for Indian religous purposes (see pages 27-28, infra). /28/ The Department of the Interior informs us that no permit authorizing the killing of an eagle for religious purposes has ever been issued. Instead, eagle parts are supplied to permittees for religous purposes out of the stock obtained from the recovery of dead eagles and their parts in the course of the enforcement of the Act. Cf. II Tr. 95 (no permit other than depredation permit (available under 16 U.S.C. 668a for golden eagles only) ever issued in Region 6 authorizing the killing of an eagle). /29/ See 1962 -- Miscellaneous Fish and Wildlife Legislation: Hearings Before the Subcomm. on Fishery and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 87th Cong., 2d Sess. 15 (1962) (Fish and Wildlife Service testimony identifying "rather substantial market for eagle feathers mostly for Indian rituals (and) the tourist trade" as providing stimulus for killing). Accord, id. at 29, 39, 47. /30/ See note 28, supra. /31/ Even this broad provision would not, of course, have authorized respondent's killing of eagles for sale to the undercover agents, since these killings were clearly not for his own consumption or for ritual purposes. /32/ Predatory Mammals and Endangered Species: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 92d Cong., 2d Sess. 144 (1972) (remarks on Rep. Potter) (hereinafter cited as 1972 House Hearings). /33/ The Department accordingly suggested that if Congress wished to eliminate Indian treaty rights, it should do so "explicitly" -- rather than "simply delet(ing)" Section 5(a)(2), it should "resolve the issue expressly by rewriting Section 5(a)(2)" (1972 House Hearings 144). This was, of course, simply drafting advice that the Congress was not obligated to follow. In any event, Section 5(a)(2) was not "simply delet(ed)." Nor was it rewritten, since the bill in which it was contained died when the 92d Congress adjourned. The important point, we submit, is that legislative history shows that Congress was specifically aware of the effect of Indian treaty rights on the matter under consideration, and ultimately decided the precise extent to which Indian hunting of the protected species should be permitted. /34/ Endangered Species Act of 1973: Hearings on S. 1592 and S. 1983 Before the Subcomm. on Environment of the Senate Comm. on Commerce, 93d Cong., 1st Sess. 126-127, 135 (1973). The Senate report noted that "the case of the Alaskan native Indians, Aleuts, and Eskimos required special attention (because those natives) depend on traditional hunting practices not only for sustenance but as a means for preserving social unity." S. Rep. 93-307, 93d Cong., 1st Sess. 5 (1973). /35/ In addition to the bald eagle, six other species of wildlife on the list of endangered and threatened species would be seriously affected: the grizzly bear, the gray wolf, the peregrine falcon, the black-footed ferret, the California condor, and the whooping crane. Memorandum from Acting Chief, Office of Endangered Species, to Chief, Division of Law Enforcement, U.S. Department of the Interior (Jan. 30, 1985). The risk is real. For example, a Florida state court recently dismissed a state prosecution against the Chairman of the Seminole Indian tribe for killing one of the some 30 remaining Florida panthers, on the theory that the state conservation laws do not extend to killings by Indians on their reservation. State v. Billie, No. 83-202 (Fla. Cir. Ct. June 28, 1985). The rationale of the instant decision would preclude a federal prosecution as well, leaving the reservation Indians totally free to destroy any of the few remaining panthers if they find them on their reservation. The Director of the Fish and Wildlife Service has informed us that approximately 15% of the panthers' known habitat is on Indian lands. /36/ The court below concluded that commercial takings of eagles and other migratory birds were not protected because there was no evidence in this record that the Yankton Sioux had historically engaged in commercial trade in such wildlife (Pet. App. 9a n.10). Thus, on a different record, a court might conclude that there was a treaty right to take birds or other wildlife for commercial purposes (Pet. App. 9a n.11). See Puyallup I, 391 U.S. at 398; Puyallup II, 414 U.S. at 48; Fishing Vessel, 443 U.S. at 686-687. /37/ In the instant case, respondent admitted that he shot eagles along the Missouri river where it borders the wildlife refuge. On one occasion, he even told the agents he intended to go into the refuge although the government was not able to obtain further proof to that effect. See page 11, supra. Unless an undercover agent (or perhaps another person) witnesses a taking, it will be nearly impossible for the government to prove whether a taking occurred on or off a reservation.