UNITED STATES of America, Appellant, v. Jackie WHITE, Appellee, 508 F.2d 453

ROSS, Circuit Judge. Jackie White, a member of the Red Lake Band of Chippewa Indians and resident of the Red Lake Reservation, was observed shooting at a bald eagle within the confines of the reservation. He was thereupon charged with the unlawful taking of a bald eagle in violation of 16 U.S.C. § 668(a). White moved for dismissal of the Information on the grounds that 16 U.S.C. § 668 was inapplicable to tribal Indians on Indian reservations exercising traditionally guaranteed tribal hunting rights. Based upon the congressional silence which underlies the statute’s enactment and upon United States v.

Cutler, 37 F.Supp. 724 (D.Idaho 1941), the trial court granted the motion to dismiss. Under the provisions of 18 U.S.C. § 3731, the government appeals the dismissal. We affirm. In the district court the government opposed the dismissal of the Information on the basis that 18 U.S.C. § 1152 established the requirement that

an Act of Congress is applicable to Indians unless expressly provided otherwise. Before this Court, the government has taken the position that 16 U.S.C. § 668 expressly deals with Indians and thus is plainly and unmistakenly applicable to Indians on their native reservations in the exercise of their right to hunt. 18 U.S.C. § 1152 provides: Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States, except the District of Columbia, shall extend to the Indian country. This

section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively. A review of the history of these provisions reveals that the statute is limited to the application of federal enclave law to Indian country.

In Ex parte Gon-shay-ee, 130 U.S. 343, 352, 9 S.Ct. 542, 545, 32 L.Ed. 973 (1889), the Supreme Court noted: “[W]ithin the exclusive jurisdiction of the United States,” [as used in the precursor statute to § 1152] is well understood as applying to the crimes which are committed within the premises, grounds, forts, arsenals, navy-yards, and other places within the boundaries of a State . . . over which the Federal government has exclusive jurisdiction.

Again, In re Wilson, 140 U.S. 575, 578, 11 S.Ct. 870, 871, 35 L.Ed. 513 (1891), the Court said: The words “sole and exclusive,” in [the precursor statute to § 1152] are only used in the description of the laws which are extended to [Indian country]. Those cases impart that 18 U.S.C. § 1152 is not a predicate for general federal criminal jurisdiction in Indian country. Rather the scope of

section 1152 is limited to the applicability or nonapplicability of federal enclave laws, those laws passed by the federal government in the exercise of its police powers over federal property and now defined in the United States Criminal Code in terms of “special maritime and territorial jurisdiction of the United States,” 18 U.S.C. § 7. See Stone v. United States, 506 F.2d 561 (8th Cir., 1974); Walks On Top v. United States, 372 F.2d 422, 425 (9th Cir.), cert. denied, 389 U.S. 827, 88 S.Ct. 109, 19 L.Ed.2d 170 (1967). 18 U.S.C. § 1152, then, is not germane to this controversy.

The government’s second argument is equally nonpersuasive. In general, there is no question that “Congress has full power to legislate concerning the tribal property of the Indians • • Tiger v. Western Investment Co., 221 U.S. 286, 311-312, 31 S.Ct. 578, 585, 55 L.Ed. 738 (1911). See also FPC v. Tuscarora Indian Nation, 362 U.S. 99, 116, 80 S.Ct. 543, 4 L.Ed.2d 584 (1960).

However, areas traditionally left to tribal self-government, those most often the subject of treaties, have enjoyed an exception from the general rule that congressional enactments, in terms applying to all persons, includes Indians and their property interests. This tradition is embraced in. the Menominee doctrine which, simply stated, is: “While the power to abrogate [treaty recognized hunting] rights exists ‘the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.’ ” Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968).

This doctrine governs the disposition of this case and is based upon well-established rules of construction. “Plenary authority over the tribal relations of the Indians ha[d] been exercised by Congress from the beginning .... Until the year 1871 the policy was pursued of dealing with the Indian tribes by means of treaties, and, of course, a moral obligation rested upon Congress to act in good faith in performing the stipulations entered into on its behalf.” Lone Wolf v. Hitchcock, 187 U.S. 553, 565-566, 23 S.Ct. 216, 221, 47 L.Ed. 299 (1903). Treaty rights could be abrogated at the will of Congress. Choate v.

Trapp, 224 U.S. 665, 671, 32 S.Ct. 565, 56 L.Ed. 941 (1912).

An Act of Congress may supersede a treaty. Thomas v. Gay, 169 U.S. 264, 271, 18 S.Ct. 340, 42 L.Ed. 740 (1898); The Cherokee Tobacco, 78 U.S. 616, 621, 11 Wall. 616, 20 L.Ed. 227 (1870). Generally, in the case of a conflict between

an Act of Congress and a treaty, the one last in date must prevail. Hijo v. United States, 194 U.S. 315, 324, 24 S.Ct. 727, 48 L.Ed. 994 (1904). However, a treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed. Cook v. United States, 288 U.S. 102, 120, 53 S.Ct. 305, 77 L.Ed. 641 (1933). Thus the later Act should be harmonized with the letter and spirit of the treaty so far as that reasonably can be done, since the intention to alter, and, pro tanto, abrogate, the treaty is not to be lightly attributed to Congress.

United States v. Payne, 264 U.S. 446, 448, 44 S.Ct. 352, 68 L.Ed. 782 (1924). The policy was best expressed in Lone Wolf v. Hitchcock, supra, 187 U.S. at 566, 23 S.Ct. at 221, where the Court said: The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the Indians themselves, that it should do so.

When, therefore, treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians. Upon a review of the tribal history of the Red Lake Band of Chippewa Indians, it is clear that a tract of land was “reserved” in a treaty for their occupation, Chippewa Indians v.

United States, 301 U.S. 358, 373, 57 S.Ct. 826, 81 L.Ed. 1156 (1937); that the occupied lands were thereafter regarded by the United States as constituting the ■ Red Lake Reservation, id., United States v. Holt State Bank, 270 U.S. 49, 58, 46 S.Ct. 197, 70 L.Ed. 465 (1926), Minnesota v. Hitchcock, 185 U.S. 373, 389-390, 22 S.Ct. 650, 46 L.Ed. 954 (1902); and that the Red Lake bands were recognized as the sole owners by right of original Indian occupancy. That manner of occupation [“as Indian lands”] in Menominee Tribe of Indians v.

United States, supra, 391 U.S. at 406, 88 S.Ct. 1705, was sufficiently definite to create a treaty right to hunt and fish. With specific reference to the Red Lake Band, the leading source in this area cites: “An examination of the various treaties between the United States and the Chippewa Indians discloses that while the right in the Indians to hunt and fish on ceded lands was reserved in some of the earlier treaties (see

Article 5, Treaty of July 20, 1837, 7 Stat. 536;

Article 2, Treaty of October 4, 1842, 7 Stat. 591; and

Article 11, Treaty of September 30, 1854, 10 Stat. 1109), no reservation of the right to hunt and fish was made with respect to the unceded lands of the Red Lake Reservation. But such a reservation was not necessary to preserve the right on the lands reserved or retained in Indian ownership. The right to hunt and fish was part of the larger rights possessed by the Indians in the lands used and occupied by them. Such right, which was ‘not much less necessary to the existence of the Indians than the atmosphere they breathed’ remained in them unless granted away.” United States v.

Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. Cohen, Federal Indian Law, 496 — 497 (2d ed. 1958) (citing Op. Acting Sol. M 28107, June 30, 1936). Based upon Menominee, Chippewa, Hitchcock, and Winans, we reach the inescapable conclusion that the Red Lake Band of Chippewa Indians enjoy a right to hunt on the Red Lake Reservation and that this right has been implicitly recognized in treaties negotiated by that band and the United States.

To affect those rights, then, by 16 U.S.C. § 668, it was incumbent upon Congress to expressly abrogate or modify the spirit of the relationship between the United States and Red Lake Chippewa Indians on their native reservation. We do not believe it has done so. 16 U.S.C.A. § 668(

a) provides: Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do so as provided in sections 668 to 668d of this title, shall knowingly, or with wanton disregard for the consequences of his act 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, or whoever violates any permit or regulation issued pursuant to sections 668 to 668d of this title, shall be fined not more than $5,000 or imprisoned not more than one year or both: .

The only reference in the Act which could be said to specifically make the Act applicable to the defendant in this case is in a subsequent section: 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 scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or for the religious purposes of Indian tribes, or that it is necessary to permit the taking of such eagles for the protection of wildlife or of agricultural or other interests in any particular locality, may authorize the taking of such eagles pursuant to regulations which he is hereby authorized to prescribe: 16 U.S.C. § 668a (emphasis added).

This latter

section was incorporated into the Act with the 1962 revisions to extend protection to golden eagles. Act of Oct. 24, 1962, 76 Stat. 1246. There is no discussion in the legislative history of that amendment about the intended effect of the amendment on reservation Indian hunting rights. Only one mention of Indians was incorporated into the congressional debates on the 1962 amendment: a letter from the Assistant Secretary of the Interior, dated February 5, 1962, discusses the veneration of eagles by Indians. 108 Cong.Rec. 22272 (1962).

Contemporaneous with the recommendation to Congress, however, the Department of the Interior, espoused the position that: [A] treaty Indian is not subject to the Migratory Bird Treaty Act while on his own Indian reservation. The same is true, by analogy, of the Bald Eagle Act. While they remain on their reserved land, your Bureau is without authority to prevent Indians from taking and possessing protected migratory birds. Memorandum from the Office of the Solicitor, U. S. Department of the Interior, Washington, D. C., to the Director of the Bureau of Sport Fisheries and Wildlife, dated April 26, 1962.

The exception in 16 U.S.C. § 668a (incorporated in the statute in 1962), is not limited to the taking of eagles by Indians or to the taking of eagles on Indian reservations.

The exception relied upon by the government to show an intent by Congress to include Indians hunting on reservations within the purview of 16 U.S.C. § 668 is that part allowing the Secretary of Interior to permit the taking of eagles “for the religious purposes of Indian tribes, . . . .” Theoretically non-Indians could be thus permitted by the Secretary to take the eagles, on or off a reservation, as long as it was for the “religious purposes of Indian tribes.” It is difficult to understand, then, how this exception could be interpreted to show an express intent of Congress to abrogate treaty rights of Indians to hunt on their own reservation.

The congressional silence in the enactment of the amendment and the position of the Department of the Interior confirm that Congress did not intend 16 U.S.C. § 668 or 16 U.S.C. § 668a “as a backhanded way of abrogating the hunting . . . rights of these Indians.” Menominee Tribe of Indians v. United States, supra, 391 U.S. at 412, 88 S.Ct. at 1711. This conclusion accords with the result reached in United States v. Cutler, 37 F.Supp. 724 (D.Idaho 1941) where the district court held that a treaty Indian was not subject to the Migratory Bird Treaty Act while on his reservation.

While we do not question that Congress has the authority to modify reservation hunting rights, Lone Wolf v. Hitchcock, supra, we do not believe that the language or history of 16 U.S.C. § 668 accomplishes that purpose here. It must be remembered that 16 U.S.C. § 668(

a) is a penal statute, that Jackie White was charged with its violation and by his trial was exposed to possible fine and loss of liberty. The specificity which we require of our criminal statutes is wholly lacking here as applied to an Indian on an Indian reservation. For the reasons hereinbefore set forth, we affirm the decision of the district court. .

This tradition has been explained in various Supreme Court opinions: “In the early years, as the white man pressed against Indians in the eastern part of the continent, it was the policy of the United States to isolate the tribes on territories of their own beyond the Mississippi, where they were quite free to govern themselves.” Organized Village of Kake v. Egan, 369 U.S. 60, 71, 82 S.Ct. 562, 569, 7 L.Ed.2d 573 (1962). In the opinions of the early cases the Indians “are spoken of as ‘wards of the nation,’ ‘pupils,’ as local dependent communities.

In this spirit the United States . . . conducted its relations to them from its organization to [the 1880’s].” United States v. Kagama, 118 U.S. 375, 382, 6 S.Ct. 1109, 1113, 30 L.Ed. 228 (1886). As the United States spread westward, “it became evident that there was no place where the Indians could be forever isolated. In recognition of this fact the United States began to consider the Indians less as foreign nations and more as a part of our country.” Organized Village of Kake v. Egan, supra, 369 U.S. at 72, 82 S.Ct. at 569.

However, the United States always “recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional villages.” United States v. Kagama, supra, 118 U.S. at 381, 6 S.Ct. at 1112. In 1871, the power to make treaties with the Indian tribes was abolished, 16 Stat. 544, 566, 25 U.S.C. § 71. In 1887 Congress passed the General Allotment Act, 24 Stat. 388, as amended, 25 U.S.C. §§ 331-358, authorizing the division of reservation land among individual Indians with a view toward their eventual assimilation into our society. Organized Village of Kake v.

Egan, supra, 369 U.S. at 72, 82 S.Ct. 562. However, the “policy of assimilation was reversed abruptly in 1934.” Id. at 73, 82 S.Ct. at 569. The Reorganization Act of 1934 “reflected a new policy of the Federal Government and tribes were encouraged to revitalize their self-government . . .” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151, 93 S.Ct. 1267, 1272, 36 L.Ed.2d 114 (1973). The Court has recently reaffirmed the policy favoring tribal self-government. In McClanahan v.

Arizona State Tax Commission, 411 U.S. 164, 172-173, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973), the Court stated: The Indian sovereignty doctrine is relevant, then, . . . because it provides a backdrop against which the applicable treaties and federal statutes must be read. It must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our Government. . . . But it is nonetheless still true, as it was in the last century, that “. . .

They were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations ... as a separate people, with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union Id. (citations omitted). . In FPC v. Tuscarora Indian Nation, supra, 362 U.S. at 123, 80 S.Ct. at 557, the Court was careful to note that the language of the congressional enactments specifically dealt with Indian property and that the “lands in question [were] not subject to any treaty between the United States and the Tuscaroras.” In Squire v.

Capoeman, 351 U.S. 1, 6, 76 S.Ct. 611, 100 L.Ed. 883 (1956), treaty provisions operated to relieve Indians of tax liability where no specific abrogation of treaty rights were expressed in the tax statute, despite the general disfavor of unexpressed exemptions from tax burdens. In Department of Game of Washington v.

Puyallup Tribe, 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (1973) [Puyallup II], the Court permitted state regulation of the manner of exercising a nonexclusive treaty right which had not been abrogated by Congress only after previously holding- that the treaty was silent on that issue, Puyallup Tribe v. Department of Game of Washington, 391 U.S. 392, 398, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) [Puyallup I], and that the treaty guaranteed rights,' themselves, could not be qualified or conditioned, id. at 399, 88 S.Ct. 1725. . This history is recounted in Chippewa Indians v.

United States, 301 U.S. 358, 57 S.Ct. 826, 81 L.Ed. 1156 (1937), and can be summarized as follows: About the beginning of the last century the Chippewa Indians constituted one of the larger Indian tribes in the northerly part of the United States. In the early treaties they were dealt with as a single tribe. In later treaties they were regarded as divided into distinct bands, of which twelve such bands became recognized occupants and holders of twelve separate reservations in Minnesota.

One of the bands in Minnesota was the Red Lake Band which, along with the Pembi-na Band, had been the exclusive occupants of the Red Lake geographical areas. By treaty of Octobér 2, 1863, 13 Stat. 667, the United States negotiated an agreement with the Red Lake and Pembina Bands whereby these bands ceded to the United States a described part of the lands then “owned and claimed by them.” In

Article 6 of the treaty the lands not ceded were called “the reservation,” and thereafter were regarded by the United States and the Indians as constituting the Red Lake Reservation. Id. at 373, 57 S.Ct. at 832. . In Minnesota v. Hitchcock, supra, 185 U.S. at 389-390, 22 S.Ct. at 657 the Supreme Court said: While there was no formal action in respect to the remaining tract, the effect was to leave the Indians in a distinct tract reserved for their occupation, and in the same act this tract was spoken of as a reservation.

Now, in order to create a reservation it is not necessary that there should be a formal cession or a formal act setting apart a particular tract. It is enough that from what has been done there results a certain defined tract appropriated to certain purposes. Here the Indian occupation was confined by the treaty to a certain specified tract. That became, in effect, an Indian reservation. See also Spalding v. Chandler, 160 U.S. 394, 403-404, 16 S.Ct. 360, 40 L.Ed. 469 (1896). Similarly in United States v.

Holt State Bank, supra, 270 U.S. at 58, 46 S.Ct. at 200, the Court said, “The effect of what was done [by the 1863 treaty] was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory .. . .” . By

an Act of Congress, Act of January 14, 1889, 25 Stat. 642, Congress proposed a plan for allotment of the various Chippewa reservations. The Act created a commission to negotiate with the various bands. In instructions issued to the Commission by the Commissioner of Indian Affairs, it was said: None but the Red Lake and Pembina bands have ever claimed an interest in said [Red Lake] reservation, and said bands have always been recognized as the sole owners by right of original Indian occupancy.

The minutes of the negotiations between the Commission and the Indians of the Red Lake Reservation under the Act, demonstrate that the Commission assured these Indians that the land which would ultimately belong to them and their children would be reserved for them and their descendants for all purposes and that no other Indians would have any right therein. Chippewa Indians v. United States, supra, 301 U.S. at 366-367, 57 S.Ct. 826. Chippewa Indians v.

United States, supra, was subsequently cited by the Supreme Court as an example of congressional recognition of the Indian right of permanent occupancy, evidenced by “the definite intention to accord legal rights, not merely permissive occupation.” Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 277-279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955).