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United States v. Fryberg

Citation: 10 ELR 20695
No. No. 79-1488, 622 F.2d 1010/14 ERC 1731/(9th Cir., 07/07/1980)

In affirming the conviction for killing a bald eagle, the Ninth Circuit Court of Appeals holds that the Eagle Protection Act modified Indian treaty rights to prohibit the taking of bald eagles without a permit. The court finds that reasonable conservation statutes affect Indian treaty rights when (1) the sovereign exercising its police power to conserve a resource has jurisdiction in the area where the activity occurs, (2) the statute applies in a nondiscriminatory manner to both treaty and non-treaty persons, and (3) the application of the statute to treaty rights is necessary to achieve its conservation purpose. A total ban of all treaty taking is allowable when necessary to assure the survival of the species. The court holds that the Eagle Protection Act satisfies these criteria. Thus, although there was no explicit statement in the Act or its legislative history that Congress intended to modify Indian treaty hunting rights, the court concludes that the surrounding circumstances, including the broad purpose of the Act and its amendment in 1962 to permit the use of eagle specimens for religious purposes, indicate that Congress intended to apply to Act to Indians and to modify Indian treaty hunting rights.

Counsel for Plaintiff
Francis Diskin, Stephen C. Schroeder, Ass't U.S. Attorneys
1012 U.S. Cthse., Seattle WA 98104
(206) 442-7970

Counsel for Defendant
John W. Tapp, Deputy Federal Public Defender
505 Madison St., No. 210, Seattle WA 98104
(206) 442-1100

Before DUNIWAY and WALLACE, Circuit Judges, and JAMESON,* District Judge.