ELR Citation: ELR 20093
No(s). 83-2353 (8th Cir. Jan 9, 1985)

The court holds that neither the Endangered Species Act nor the Eagle Protection Act abrogated the federal treaty right of reservation Indians to hunt eagles and scissor-tailed flycatchers for noncommercial purposes. The court first establishes that Indian treaties are to be construed liberally in favor of the Indians. Though the Yankton Sioux treaty was silent as to on-reservation hunting rights, the Indians clearly would have understood the treaty as reserving in them the right to hunt eagles. On the other hand, the Indians would not have understood the treaty as giving them a right to sell the birds, since such selling was not a part of Indian custom. Similarly, the Indians would not have understood the treaty as giving them the right to kill the birds for commercial purposes.

The court proceeds to consider whether Congress has abrogated the right to hunt eagles and scissor-tailed flycatchers. The court follows one of the its earlier decisions and holds that Congress can abrogate treaty rights only by express reference to treaty rights in the statute or the legislative history. This strictest test is especially appropriate where, as here, criminal sanctions are involved. The court distinguishes cases establishing government power to regulate Indian hunting for conservation purposes; those cases address only treaties which give Indians the right to hunt in common with others outside reservations. Applying these principles, the court holds that neither the endangered Species Act nor the Eagle Protection Act abrogate the treaty rights of these Indians to hunt eagles and scissor-tailed flycatchers for noncommercial purposes.

A dissent representing three judges from the en banc panel would apply a less strict test and find abrogation.

Counsel for Appellant
James C. Kilbourne, Claire L. McGuire
Land and Natural Resources Division
Department of Justice
10th and Constitution Ave. NW, Washington DC 20530
(202) 633-2855

Counsel for Appellee
Michael H. Dow
Swanson, Carter & Dow
100 South Dakota Ave., Sioux Falls SD 57102
(605) 334-8900

Ross, J., before Heaney, Bright, McMillian, Arnold, John R. Gibson, Fagg, and Bowman, JJ.^*