UNITED STATES OF AMERICA, PETITIONER V. DWIGHT DION, SR. No. 85-246 In the Supreme Court of the United States October Term, 1985 On Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit Reply Brief for the United States The central premise of the government's case is simply this: Congress does not abrogate the Yankton Sioux Tribe's treaty-based hunting rights by enacting general prohibitions on the taking of eagles -- applicable to Indians and non-Indians alike -- designed to prevent extinction of the species. Neither respondent nor the various amici provide an answer to the primary thrust of the government's case. 1. By attempting to recast the issue as whether Congress has specifically acted to abrogate the treaty entered into between the United States and the Yankton Sioux Tribe in 1858, the respondent (see, e.g., Br. 17-18) is engaging in an all-or-nothing debate that pits the rights of the Tribe against the general public interest in the conservation of the nation's treasured eagle population. The reality left unaddressed by respondent (and amici) is that treaty rights to hunt a species will inevitably be destroyed if the species is extinguished. As this Court stated in considering the restrictions imposed by the Migratory Bird Treaty Act, 16 U.S.C. 703 et seq., on hunting of migratory birds, protection of the nation's wildlife is an "interest of very nearly the first magnitude." Missouri v. Holland, 252 U.S. 416, 435 (1920). Because both the Bald Eagle Protection Act (BEPA), 16 U.S.C. 668 et seq., and the Endangered Species Act of 1973 (ESA), 16 U.S.C. (& Supp. II) 1531 et seq., represent congressional responses to a perceived eagle population crisis, it follows that the Acts' restrictions must, to be effective, be comprehensive. See United States v. White, 508 F.2d 453, 462 (8th Cir. 1974) (Lay, J., dissenting) (BEPA can achieve its conservation purpose only if it applies to everyone). 2. The result the United States seeks here follows from the concedely broad federal authority over Indians and Indian tribes. The BEPA and ESA are general statutes which, by their terms, do not exclude Indians from their coverage. /1/ Indeed, by creating certain exceptions in both the BEPA for the taking possession and transportation of eagles "for the religious purposes of Indian tribes" (16 U.S.C. 668a), and in the ESA for takings of protected species by any "Indian, Aleut, or Eskimo who is an Alaskan Native who resides in Alaska" (16 U.S.C. 1539(e)(1)(A)), Congress indicated its intention that the restrictions of both Acts apply to Indians. To hold otherwise would render these carefully limited exemptions meaningless. /2/ As detailed in our opening brief (at 26-31), Congress added the Section 668a religious exception to the BEPA in 1962, authorizing the Secretary of the Interior to issue permits for the taking of eagles if he finds that the taking is "compatible with the preservation" of the eagle and is "for the religious purposes of Indian tribes." The legislative history of that Section corroborates its logically inherent premise -- that Congress believed the statute applied to Indians. See Protection for the Golden Eagle: Hearing on S.J. Res. 105 and H.R.J. Res. 489 Before a Subcomm. of the Senate Comm. on Commerce, 87th Cong., 2d Sess. 3, 7 (1962). Similarly, as detailed in our opening brief (at 28-30), in passing the ESA in 1973, Congress failed to enact an earlier version of the legislation that contained an exemption for "American Indians, Aleuts and Eskimos," which would have preserved Indian treaty rights (H.R. 13081, 92d Cong., 2d Sess. Section 5(a)(2) (1972)), or a provision that would have allowed limited takings by Indians (S. 3199, 92d Cong., 2d Sess. (1972)). In light of the comprehensive nature of the ESA, and its narrowly written exceptions for Alaskan Indians, the failure to enact these additional Indian exemptions "virtually requires the conclusion that Congress intended the Act to cover Indian activities." Coggins & Modrcin, Native American Indians and Federal Wildlife Law, 31 Stan. L. Rev. 375, 405 (1979). /3/ 3. Rather than casting doubt on the applicability of the BEPA and ESA to Indian tribes, this Court's decisions make clear that comprehensive, nondiscriminatory conservation statutes apply to Indians. This is consonant with the continued existence of treaty hunting rights, because such rights never grant a tribe the self-defeating right to hunt any species to extinction. In Puyallup Tribe v. Dep't of Game (Puyallup I), 391 U.S. 392, 398 (1968), this Court found that the State of Washington could regulate the reserved fishing rights of the Puyallup Tribe "in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians." Because the state regulations that followed failed to accommodate the rights of Indians, but instead allowed non-Indians to preempt those rights, the regulations were struck down in Dep't of Game v. Puyallup Tribe (Puyallup II), 414 U.S. 44 (1973). Significantly, however, the Court there clearly reaffirmed that tribal fishing rights "can be controlled by the need to conserve a species; * * * the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets." Id. at 49. The present case, of course, does not involve state regulation of a tribe's reserved rights. But the Puyallup cases and their progeny establish beyond dispute that a state can enact nondiscriminatory, generally applicable conservation measures to preserve a species, although the state is otherwise powerless to affect treaty hunting or fishing rights. Certainly the federal government, whose powers as sovereign are much greater, can consistently with its responsibilities to the various tribes impose limits on treaty rights to prevent extinction of a species. /4/ 4. Respondent (Br. 18-19) and the amici challenge the congressional determination that golden eagles are in need of protection. While it is true that the golden eagle is not listed as a threatened or endangered species under Section 4(a) of the ESA, 16 U.S.C. 1533(a), it is nonetheless undisputed that it is a protected bird subject to the prohibitions of the BEPA. Respondent is, in effect, asking this Court to substitute its judgment for that of Congress regarding the need for protection of the golden eagle (both for its own sake and because it is difficult for hunters to distinguish it from the bald eagle). However, it is not the role of the courts to reweigh the evidence that resulted in a congressional determination that a valued public resource was in need of protection. Kleppe v. New Mexico, 426 U.S. 529, 541 n. 10 (1976). Conspicuous by its absence is any attempt by respondent or amici to reconcile their argument that the danger to either the golden or bald eagle by Indian hunting is not a real threat with the express congressional determination that both species are in need of protection. It is, of course, axiomatic that a statute must be interpreted in light of the purposes Congress sought to achieve. See, e.g., Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 118 (1983). As we have demonstrated in our opening brief, application of the prohibitions of both the ESA and the BEPA to Indians who take protected species either on or off reservation is fully consistent with the statutory language and those statutes' respective legislative histories. 5. There is no merit in the contention advanced by amici that application of the BEPA and ESA in this case violates the Free Exercise Clause of the First Amendment. Respondent did not allege at trial that the takings in question were for religious purposes. This case, therefore, presents no occasion for this Court to consider whether any taking of a protected species by an Indian for religious purposes is subject to either the BEPA or ESA. A. Prior to trial, respondent filed a Motion For Dismissal asserting, inter alia, that the ESA, BEPA and the Migratory Bird Treaty Act were unconstitutional restrictions on his religious practices. The district court held a pretrial hearing on respondent's motion, at which it heard testimony (J.A. 11-21) concerning the religious practices of the Native American Church of North America, of which respondent is a member (id. at 22), as well as testimony by respondent himself (id. at 21-29). This testimony established that the Native American Church looks with disfavor on the sale of religious prayer instruments (id. at 11) and is opposed to the killing of eagles (id. at 12). Only a few Indians are capable of making prayer instruments, and these craftsmen make religious objects for anyone in the church who requires their use (id. at 14). Significantly, respondent did not assert that he took the five eagles in question for religious purposes. The district court refused to dismiss the indictment on religious grounds (Pet. App. 70a), nevertheless making clear that respondent would be free at trial to introduce evidence regarding the religious motivation, if any, for his taking of eagles. Respondent did not offer any such evidence at trial. In fact, respondent here admits (Br. 21 n.8) that the takings in this case were not for religious purposes. It could hardly be otherwise, since the evidence clearly shows that the birds taken were sold to federal agents posing as dealers in Indian arts and crafts (Pet. App. 27a-29a). Having failed to establish a factual predicate for his claim of a violation of his First Amendment rights, respondent may not now raise the constitutional issue. By contrast, in Wisconsin v. Yoder, 406 U.S. 205 (1972), the Amish challenging Wisconsin's compulsory school-attendance law "abundantly" supported their claim that the State's requirement of compulsory formal education after the eighth grade "would gravely endanger if not destroy the free exercise of (their) religious beliefs" (406 U.S. at 219). This Court accordingly found, on balance, that the State could not compel such school attendance (406 U.S. at 234). But respondent here failed to present any factual support for a free exercise claim, and in fact concedes that the takings in this case were not for religious purposes. There is, therefore, no occasion at his behest for this Court to consider a constitutional challenge to the BEPA and ESA, grounded on their possible application "to other persons or other situations." United States v. Raines, 362 U.S. 17, 21 (1960). /5/ If, at some future time, enforcement actions under the BEPA or the ESA actually interfere with the rights of native Americans to the free exercise of their religion, it will then be time enough to consider whether those actions impermissibly burden First Amendment rights. /6/ The relationship between the government's pursuit of its statutorily-mandated objectives and Indian religious freedom raises issues that are neither trivial nor insignificant. See, e.g., Northwest Indian Cemetery Protective Ass'n v. Peterson, 764 F.2d 581 (9th Cir. 1985), petition for reh'g pending, No. 83-2225. However, this case does not involve any such issues; for that reason, this Court should decline the invitation of respondent and amici to address them. /7/ B. In any event, contrary to assertions by amici, Congress has adequately accommodated the religious needs of Indians by empowering the Secretary under the BEPA to issue permits authorizing the taking of bald and golden eagles "for the religious purposes of Indian tribes" (16 U.S.C. 668a). See 50 C.F.R. 22.2. Since June 1977, the Department of the Interior has provided 673 bald eagle and 3,266 golden eagle carcasses to Indians from its central repository in Pocatello, Idaho. /8/ Contrary to the assertions of respondent and amici, the United States is acting to protect and preserve the rights of American Indians to use eagles and their parts for religious purposes. /9/ 6. Finally, respondent asserts (Br. 31-34) that "he cannot be prosecuted for taking the same identical eagles that he has already been convicted of selling." Respondent did not raise this argument in the lower courts and, consequently, those courts had no occasion to pass on it. Accordingly, this Court should decline to consider the issue. See, e.g., County of Oneida v. Oneida Indian Nation, No. 83-1065 (Mar. 4, 1985), slip op. 16-17. There is, in any event, no merit to this claim -- which, of course, raises solely an issue of statutory construction (see, e.g., Missouri v. Hunter, 459 U.S. 359 (1983)). Congress specifically provided in the BEPA that "each taking or other act prohibited by this section with respect to a bald or golden eagle shall constitute a separate violation of this section" (16 U.S.C. 668(a)). See also 16 U.S.C. 1540(a), providing -- for civil penalties under the ESA -- that "(e)ach violation shall be a separate offense." The criminal penalties provision (16 U.S.C. 1540(b)), essentially overlaps the civil provision, and evidently has the same scope. For the foregoing reasons, as well as those stated in our opening brief, the judgment of the court of appeals affirming the dismissal of Count 12 of the indictment and reversing respondent's convictions on Counts 8 and 10 should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General March 1986 /1/ Cf. Hynes v. Grimes Packing Co., 337 U.S. 86, 122 (1949) (federal statute regulating Alaskan fishing rights "applies to commercial fishing by natives equally with fishing companies, nonresidents of Alaska or other American citizens, and so applies whether those natives are or are not residents on a reservation"). /2/ This is hardly a noval notion. For example, in 1855 the Makah Indians were granted an express treaty right to conduct sealing activities. Treaty of Jan. 31, 1855, art. 4, 12 Stat. 940. However, the United States, in response to an international conservation dispute with Great Britain, subsequently passed legislation prohibiting sealing, but creating a limited exception for traditional Indian sealing. Act of Apr. 6, 1894, ch. 57, 28 Stat. 52 et seq. The Attorney General concluded that Makah Indians who did not fall within the specific exception were subject to the federal statute's general prohibitions. 21 Op. Att'y Gen. 466 (1897). The Indian Claims Commission later agreed, stating that the Makah Indian's rights "are not so absolute, exclusive, and unlimited that they cannot be limited or accommodated * * * (by) proper measures to conserve and protect our natural resources for the general welfare and benefit of all citizens." Makah Indian Tribe v. United States, 7 Indian Cl. Comm'n, 477, 496 (1959), aff'd mem., 151 Ct. Cl. 701 (1960), cert. denied, 365 U.S. 879 (1961). See also United States v. The James G. Swan, 50 F. 108 (D. Wash. 1892) (holding that a Makah vessel is subject to forfeiture for illegal taking of seals). Respondent mistakenly suggests (Br. 11) that a federal district court decision, United States v. Cutler, 37 F. Supp. 724 (D. Idaho 1941), and a 1942 opinion of the Solicitor of the Interior, 1 Op. Solic. Interior Dep't 1090 (1942), support an inference that Congress originally enacted the BEPA with the understanding that it would not apply to Indians. However, both of these sources post-dated the 1940 enactment of the BEPA. As the Makah controversy demonstrates, pre-1940 authority supports an opposite inference. See also New York ex rel. Kennedy v. Becker, 241 U.S. 556 (1916). Indeed, a 1934 Solicitor's opinion concludes that the Migratory Bird Treaty Act, similar in its terms to the BEPA, would apply to Indians who hunted upon their reservations. 54 Interior Dec. 517 (1934). Furthermore, this Court had recently indicated that statutes of general application should generally apply to Indians. Choteau v. Burnet, 283 U.S. 691, 693-694 (1931). Notably, Cutler has been subject to sound criticism. See Coggins & Modrcin, Native American Indians and Federal Wildlife Law, 31 Stan. L. Rev. 375, 408 (1979) ("Cutler is certainly wrong as a statement of the law."). /3/ Respondent is plainly wrong in suggesting (Br. 26) that a special exception for Alaskan natives was enacted because their aboriginal hunting rights were terminated under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq. Nothing in the legislative history supports that argument. As we explain in our opening brief (at 30), the Alaskan native exception was enacted in response to the Alaskan natives' unique dependence on species, such as the bowhead whale, likely to be regulated under the ESA. See 119 Cong. Rec. 25677 (1973); see also 118 Cong. Rec. 8400-8401 (1972) (describing a similar exception for Alaskan natives under the Marine Mammal Protection Act, 16 U.S.C. 1371(b)). Amici National Congress of American Indians suggest (Br. 15-16) that the failure to include a specific reference to Indian treaty rights in the currently pending, proposed reauthorization of the ESA supports the claim that the ESA does not limit those rights. In fact, the hearings to which they refer (Endangered Species Act: Hearings Before the Subcomm. on Fisheries and Wildlife Conservation and the Environment of the House Comm. on Merchant Marine and Fisheries, 99th Cong., 1st Sess. 311-457 (1985)) are to precisely the opposite effect. They show that the Department of the Interior drafted an amendment at the subcommittee's request to overcome the problems posed by the decision below (id. at 314, 427). Representatives of the Department (id. at 313-314) and subcommittee members (id. at 320, 411-414, 415-418, 430-431) nevertheless clearly expressed the view that that decision was incorrect, and that the ESA as originally enacted applied to Indian treaty rights. It was also repeatedly predicted that this Court would so hold (id. at 419, 421, 432). It was suggested that "the only subject that this Congress need deal with, if it need deal with any at all, is that which Dion deals with, which is the treaty rights, and on that subject, your choices are to wait for the Supreme Court to act or to reaffirm what * * * is already clear from the act" -- that it applies across the board to all takings of endangered and threatened species (id. at 422). The former alternative was adopted, as suggested by the Interior (id. at 314, 316). See 131 Cong. Rec. H6468 (daily ed. July 29, 1985). Contrary to the implication of amici, Congress has not yet completed action on the reauthorization. /4/ Cf. Aleut Community v. United States, 117 F. Supp. 427, 431 (Ct. Cl. 1954). Respondent's attempt (Br. 15) to distinguish this Court's decision in the Puyallup cases and Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979), as involving in-common rights to fish as opposed to the assertedly "exclusive" hunting rights he possesses is unavailing. Where, as here, a migrating species has been afforded protection by Congress, all citizens share an interest in the species, and share in the responsibility to refrain from hunting the species to extinction. In a real sense, therefore, the rights (and responsibilities) of the Tribe and other citizens vis-a-vis bald and golden eagles are no less "in-common" than those involved in the Puyallup cases. /5/ Amici's discussion (see, e.g., National Congress of American Indians Br. 12-16) of the American Indian Religious Freedom Act, 42 U.S.C. 1996 et seq., is of no aid to respondent. That entirely exhortatory statute reflects Congress's desire to protect the "possession of sacred objects" by Indians, which, of course, says nothing about the killing or sale of eagles or eagle parts. In fact, the legislative history indicates that Congress intended simply to protect legally acquired artifacts. H.R. Rep. 95-1308, 95th Cong., 2d Sess. 3 (1978); see also 124 Cong. Rec. 21444 (1978) (statement of Rep. Udall) ("(I)t is not the intent of my bill to wipe out laws passed for the benefit of the general public or to confer special religious rights on Indians. It is not the intent or the effect of my bill to permit Indians to cause the extinction of a species."). Accord, Federal Agencies Task Force, U.S. Dep't of Interior, American Indian Religious Freedom Act Report, P.L. 95-341, at 72 (Aug. 1979). /6/ Although amicus Hopi Indian Tribe details at some length the Hopi religious practices that involve the use of golden eagle feathers (Br. 7-11), we note that there is no claim that enforcement of either the BEPA or the ESA has to date interfered with those practices. See, e.g., Br. 23-24. /7/ It is inappropriate to apply to this case the principles developed in order to avoid the chilling effect of overbroad legislation on expressive activities protected by the First Amendment. See, e.g., Bigelow v. Virginia, 421 U.S. 809, 815-818 (1975); Broadrick v. Oklahoma, 413 U.S. 602, 611-615 (1973). Even if we assume that these principles, which "reflect the transcendent value to all society of constitutionally protected expression" (421 U.S. at 816) and association (413 U.S. at 612-613), apply to other rights protected by the First Amendment, they surely are inapplicable where, as here, the area affected by the law as a whole does not to any substantial degree involve First Amendment activities, and is clearly constitutional in the great preponderance of applications where conduct is involved. "(T)he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the (government) to sanction moves from 'pure speech' toward conduct and that conduct -- even if expressive -- falls within the scope of otherwise valid criminal laws that reflect legitimate (government) interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct." 413 U.S. at 615; cf. 421 U.S. at 817. The ordinary rule is "that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional" (United States v. Raines, 362 U.S. at 21). At most, "(a) plausible challenge to a law as void for overbreadth can be made (by one whose conduct is not itself constitutionally protected) only when (1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory way of severing the law's constitutional from its unconstitutional applications so as to excise the latter clearly in a single step from the law's reach." L. Tribe, American Constitutional Law 711 (1978) (emphasis in original); cf. Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 858-862, 882-910 (1970). Respondent can satisfy neither of these criteria. If there is in fact any constitutional overbreadth in either the BEPA or the ESA, that defect can be cured when a proper claimant comes before the Court. /8/ The assertion of amici Assiniboine and Sioux Tribes of the Ft. Peck Reservation (Br. 23) that "white ranchers * * * are given permits to kill eagles to protect sheep or cattle" is factually erroneous. See also Hopi Indian Tribe Amicus Br. 20 n.5. No depredation permits (50 C.F.R. 22.23) or depredation orders (50 C.F.R. 22.31) that allow the killing of eagles have been issued since 1983. /9/ Moreover, it has been and remains the policy of the Department of the Interior to permit Indians to "possess, carry, use, wear, give, loan, or exchange among other Indians, without compensation, all federally protected birds, as well as their parts or feathers" "without fear of Federal prosecution, harassment, or other interference." This policy was announced by Secretary of the Interior Rogers C. B. Morton on February 5, 1975, and has been adhered to since that time. The news release describing this policy was made part of the district court record in this case as an attachment to the government's response to the motion for dismissal, filed on July 26, 1983.