UNITED STATES OF AMERICA, PETITIONER V. DWIGHT DION, SR. No. 85-246 In the Supreme Court of the United States October Term, 1985 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit PARTIES TO THE PROCEEDING Respondent was tried alone, but the cases of Asa Primeaux, Sr., Lyle Dion, and Terry Fool Bull were joined with his on appeal. Asa Primeaux, Sr. and Terry Fool Bull did not preserve on appeal the issue involved in this petition./*/ We have sought rehearing in the court of appeals of the reversal of Lyle Dion's conviction on other grounds; regardless of the outcome of that petition and the instant case, we will not seek to retry Lyle Dion on the only count on which he was convicted that raises the issue in this petition. Accordingly, pursuant to Rule 19.6 of the Rules of this Court, we are notifying the Clerk of this Court of our belief that neither Asa Primeaux, Sr., Terry Fool Bull, nor Lyle Dion has any interest in the outcome of this petition. See R. Stern & E. Gressman, Supreme Court Practice 441-442 (5th ed. 1978). TABLE OF CONTENTS Opinions below Jurisdiction Statutes involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The January 9, 1985, opinion of the court of appeals, sitting en banc (App., infra, 1a-23a), is reported at 752 F.2d 1261. The May 20, 1985, opinion of the court of appeals panel (App., infra, 24a-66a) is reported at 762 F.2d 674. The September 8, 1983, order of the district court dismissing Count 12 of the indictment (App., infra, 69a-73a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 67a-68a) was entered on May 20, 1985. On July 9, 1985, Justice Blackmun granted an extension of time until August 18, 1985, within which to file a petition for a writ of certiorari. STATUTES INVOLVED 1. The Bald Eagle Protection Act, 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, 16 U.S.C. 1538(a), provides in pertinent part: (1) Except as provided in sections 1535(g) (2) and 1539 of this title, with respect to any endangered species of fish or 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 auy 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 tribal hunting rights provide a defense to the taking prohibitions of the Bald Eagle Protection Act, 16 U.S.C. 668 et seq., and the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq. STATEMENT 1. In February 1981, the United States Fish and Wildlife Service initiated an undercover investigation (Operation Eagle) into the illegal taking and selling of bald and golden eagles and other migratory birds in South Dakota. /1/ Early in the investigation, the undercover agents were introduced to respondent, a "main actor() in the protected bird and feather trade" (App., infra, 28a). Over the approximately two-year course of the investigation, the agents purchased from him 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 Bald Eagle Protection Act, 16 U.S.C. 668 et seq., the Endangered Species Act of 1973, 16 U.S.C. 1531 et seq., and the Migratory Bird Treaty Act, 16 U.S.C. 703 et seq. (App. infra, 28a-29a). The eagles had been taken by respondent, an enrolled member of the Yankton Sioux tribe (App., infra, 5a), within the boundaries of the Yankton Sioux reservation. /2/ That 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). 2. In the district court, respondent was charged with one count of taking a golden eagle in violation of the Bald Eagle Protection Act (BEPA), 16 U.S.C. 668 et seq. (Count 12); two counts of taking bald eagles in violation of the Endangered Species Act of 1973 (ESA), 16 U.S.C. 1531 et seq. (Counts 8 and 10); /3/ and ten counts of selling the whole carcasses or parts of eagles and other migratory birds in violation of the BEPA and the Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703 et seq. In a pre-trial motion, respondent moved to dismiss all counts on the basis of United States v. White, 508 F.2d 453 (8th Cir. 1974), because all the violations occurrd 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 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" (App., infra, 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. App., infra, 71a. A jury convicted respondent on the two remaining taking counts and on eight of the sales counts. Respondent appealed his convictions on these counts. The United States appealed the district court's dismissal of Count 12. 3. 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. /4/ Only respondent and his son asserted a treaty defense to their convictions at the appellate stage. /5/ As 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 (App., infra, 22a). /6/ First, the court found that the Dions had a treaty right to hunt eagles /7/ 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. App., infra, 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. App., infra, 14a-15a. The court did not find such an express statement in either the BEPA or the ESA. App., infra, 19a-22a. /8/ The court also rejected the government's argument, based upon the Puyallup trilogy, /9/ that generally applicable federal conservation statutes limit 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. App., infra, 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. As 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 if it could prove, under proper instructions, that his takings were commercially motivated. App., infra, 22a-23a. /10/ 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. App., infra, 65a-66a. The panel rejected the nontreaty defenses raised by Dwight Dion and Asa Primeaux, Sr. The government has petitioned the court of appeals for rehearing and rehearing en banc on the entrapment issue. Consequently, its petition here relates only to Dwight Dion. See page II, supra. REASONS FOR GRANTING THE PETITION The decision below seriously undermines the congressional intent in enacting two important wildlife conservation measures, and threatens their effectiveness. It does so on the basis of an analysis that misinterprets this Court's relevant decisions, in direct conflict with a decision of the Ninth Circuit. 1. In United States v. Fryberg, 622 F.2d 1010, cert. denied, 449 U.S. 1004 (1980), the Ninth Circuit held that tribal hunting rights do not preclude a conviction for violation of the taking prohibition of the BEPA. In our opposition to the petition for certiorari in that case, we recognized the conflict with United States v. White, supra, but suggested that in light of this Court's decisions subsequent to White, the Eighth Circuit might well retreat from its interpretation of the BEPA, and thus resolve the conflict. Justices Blackmun and White would nevertheless have granted certiorari in Fryberg (449 U.S. 1004 (1980)). The prediction in our Fryberg opposition has not proved accurate; in this case, the Eighth Circuit reaffirmed and expanded the ruling of White. The conflict between the circuits now merits resolution by this Court. 2. The court below misinterpreted this Court's decisions in concluding that Indian treaty rights permit them to hunt wildlife protected by bona fide non-discriminatory conservation statutes. a. 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. /11/ 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, 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. Cf. App., infra, 8a-9a. b. 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. 165, 176 n.15) (1977), this Court in Puyallup II emphasized the inherent limitation on these rights (414 U.S. 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 Fishing Vessel, 443 U.S. at 684-687. It is abundantly clear that non-Indians, as well as Indians, have an interest in avoiding the eradication of 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 federal conservation statutes. /12/ e. Even assuming that the 1858 Yankton Sioux Treaty could be interpreted as granting respondent an unfettered right to take eagles and other endangered species, it is clear that this treaty right was at the least suspended by the BEPA and the ESA. While fully accepting the rule that an intent to limit Indian treaty rights must be clear from the face of the federal statute or its legislative history, we submit that standard is satisfied here. a. The House report to 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). /13/ 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 Frank P. Briggs to Honorable Warren G. Magnuson (Feb. 5, 1962), reprinted in S. Rep. 1986, 87th Cong., 2d Sess. 5,6 (1962), and 108 Cong. Rec. 22272 (1962). Congress acceded to this request; it amended the BEPA to authorize the Secretary to allow by regulation the taking, possession, and transportation of eagles "for the religious purposes of Indian tribes," but only if he finds such taking compatible with the preservation of the species. 16 U.S.C. (1964 ed.) 668a. 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 cermonies. /14/ See also Andrus v. Allard, 444 U.S. 51, 56-57 (1979), contrasting the "sweepingly framed" prohibitions of the BEPA with its "specifically limited" exemptions. b. The Endangered Species Act of 1973 and its legislative history equally demonstrate that Congress intended it to apply to Indians. The ESA's prohibitions apply to "any person subject to the jurisdiction of the United States." 16 U.S.C. 1538(a)(1). Certain exemptions are set out in 16 U.S.C. 1539, including 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). /15/ An earlier version of the bill contained a much broader exemption, which specifically applied to Indians exercising treaty rights. S. 3199, 92d Cong., 2d Sess. (1972). /16/ This bill failed to pass, and a new bill was introduced the following year. The limited exemption for Alaska Natives contained in the present Act was inserted into this new bill. 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. 69-71, 134-136 (1973). On the Senate floor, the narrowness of the exemption was stressed. 119 Cong. Rec. 25677 (1973). 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, slip op. 12, 21. The court below thus exceeded the proper bounds of judicial review in requiring an express reference to treaty rights in the statute or its legislative history. 4. The decision below, if unreversed, threatens to have serious practical effects not only on the country's bald eagle population, but on other endangered species as well. /17/ Even if other circuits choose to follow Fryberg, the impact of the instant decision within the Eighth Circuit will substantially affect national conservation efforts. The Eighth Circuit contains 28 Indian reservations, with a population of approximately 91,000 Indians. Bureau of Indian Affairs, U.S. Dep't of Interior, Local Estimates of Resident Indian Population and Labor Force Status: January 1983, Table 3 (Indians Living on or Adjacent to Reservations). Twelve of the National Wildlife Refuges within this circuit are found within ten miles of a reservation. 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. The Eighth Circuit thus contains substantial numbers of the total national population of a variety of federally protected endangered and threatened species within easy access of Indians who may wish to hunt them. The instant case threatens to impede substantially the successful prosecution of such hunters, thus increasing their incentive to take the wildlife and hindering efforts to protect the various populations. /18/ The Eighth Circuit would require the government 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 -- or that it was taken for a commercial purpose. /19/ It is not even 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 taking counts for retrial "under proper instructions" (App., infra, 22a-23a). In sum, it is clear that the decision below increases the government's burden in prosecutions to enforce the BEPA and the ESA, and it may well be that like problems will attend the enforcement of other federal conservation statutes under the court's overly restrictive standards of statutory interpretation where Indian treaty rights are involved. This Court should remove these clouds on the federal ability to enforce these important laws. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Acting Solicitor General F. HENRY HABICHT II Assistant Attorney General LOUIS F. CLAIBORNE Deputy Solicitor General HARRIET S. SHAPIRO Assistant to the Solicitor General DONALD A. CARR CLAIRE L. McGUIRE JAMES C. KILBOURNE Attorneys AUGUST 1985 /*/ See note 5, infra. /1/ Operation Eagle resulted in charges against more than 40 individuals. Many of these are Indians who live on or near the Yankton Sioux Reservation (III Tr. 65-66). /2/ 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). /3/ Since 1967, the bald eagle has been listed as endangered in all but five of the lower 48 states. 32 Fed. Reg. 4001. Since 1978, it has been listed as threatened in those five states (Washington, Oregon, Wisconsin, Minnesota and Michigan). 43 Fed. Reg. 6233 (1978). See 50 C.F.R. 17.11 (current list). /4/ 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. /5/ 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 App., infra, 4a n.4 (incorrectly implying that Primeaux was not a Yankton Sioux). /6/ Judges McMillian, Bright and Fagg dissented; they would have overruled White (App., infra, 23a). /7/ In the 1858 Treaty with the Yankton Tribe of Sioux, Apr. 19, 1858, 11 Stat. 743 et seq., the Yanktons ceded and relinquished to the United States all lands claimed by the tribe except for a four hundred thousand acre tract of land. The 1858 Treaty made no express reservation of a hunting right on either ceded or retained lands, although an 1851 Treaty with the entire Sioux Nation, including the Yankton Sioux, recognized each tribe's territory and reserved to the tribes the "privilege of hunting, fishing, or passing over" each other's territory. Treaty of Fort Laramie, Sept. 17, 1851, 11 Stat. 749, reprinted at C. Kappler, Indian Affairs -- Laws and Treaties art 5, at 595 (1904). See Menominee Tribe v. United States, 391 U.S. 404, 406 (1968) (hunting rights may be implied). /8/ Because the only charges under the MBTA involved sales, not takings, the court did not consider whether the MBTA abrogated treaty rights (App., infra, 10a-11a). /9/ 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). /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 (App., infra, 22a-23a). The first two facts were essentially undisputed, as was the fact that respondent sold the eagles to the agents (II Tr. 223-226; III Tr. 35-46, 58-63, 183-186). /11/ In asserting that the record in this case contains no evidence that Indian hunting threatens the eagle with extinction (App., infra, 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 (20)) is a pre-condition to its listing, and the application to it of the statute's protections. 16 U.S.C. 1533, 1538. See also 50 C.F.R. 17.31(a) (prohibitions as to endangered species generally apply to threatened species). There is accordingly no need to establish anew the threat of extinction in individual prosecutions under these Acts. /12/ This case does not, of course, involve 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. We do not contend that a state could so enforce such a statute. /13/ 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. /14/ Nothing in the legislative history supports the ingenious suggestion of the court below that the exception was designed only to permit non-Indians to take eagles for Indian religious purposes (App., infra, 21a). Certainly, if Congress intended such a strained reading of the Act, it would have given some indication of that intent. /15/ Even so, 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). /16/ This exemption provided (S. 3199, supra, Section 5(a)(2)): The prohibitions contained in this section shall not apply to 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. /17/ The decision jeopardized federal efforts to protect not only the eagle, but also such other wildlife on the list of endangered and threatened species as the grizzly bear, the gray wolf, the peregrine falcon, and the whooping crane. See 50 C.F.R. 17.11. 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 law does 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. /18/ The potential impact of Indian hunting on the eagle population could be serious. Respondent estimated he himself killed 20 eagles a year, and in fact he sold 7 bald eagles to the agents in about 2 years. Interior estimates the total bald eagle wintering population in the Eighth Circuit to be 2,452 eagles. National Wildlife Federation, 1984 Mid Winter Bald Eagle Survey. 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). /19/ 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 (App., infra, 9a n.10). Thus, on a different record, the court might conclude that there was a treaty right to take birds or other wildlife for commercial purposes (App., infra, 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. APPENDIX