On Fri, 15 Aug 1997, Don Baccus wrote:

> A side issue: when they were listed as endangered, rather than threatened,
> the ESA prevented the Makah from whaling. Did the Makah make a political
> decision not to push this back then, or was there a legal ruling that
> applies? Anyone know? For the most part, threatened species are given
> the same protections as endangered species and the differentiation is
> therefore largely symbolic, so I've been very curious about this weird
> twist.


A bit of law to season the stew:

Congress may unilaterally abrogate treaties, including treaties with
Native American nations. It seldom does so explicitly. More commonly,
the courts conclude that in enacting a statute Congress *implicitly*
abrogated treaty rights to the extent that those rights are inconsistent
with the statute.

In _United States v. Dion_, 476 U.S. 734 (1986), the United States
Supreme Court stated the current test for abrogation:
What is essential is clear evidence that Congress actually
considered the conflict between its intended action on the
one hand and Indian treaty rights on the other, and chose
to resolve that conflict by abrogating the treaty.

In _Dion_, the Court held that the Bald Eagle Protection Act met this
standard and that Congress had intended to abrogate the treaty rights of
the Yankton Sioux and to prevent on-reservation hunting of Bald Eagles.

The Eighth Circuit had held in _Dion_ that the Endangered Species Act
did *not* abrogate treaty hunting and fishing. On appeal from the
Eighth Circuit decision, the Supreme Court did not reach the ESA issue
because it held that the Eagle Act had previously abrogated the treaty
rights.

A subsequent decision by a federal district court in Florida involving the
killing of a Florida Panther by a Seminole -- _United States v. Billie,_
667 F. Supp. 1485 (S.D. Fla. 1987) -- held that the ESA *did* abrogate
treaty rights.

The Supreme Court has not been presented with a case that would
resolve the conflict between _Dion_ and _Billie_. Given the anti-Indian
bias of the current Court, I presume that no tribe is likely to push the
issue.

I think that _Billie_ is inconsistent with the test enunciated in _Dion_
since there is nothing in the legislative history of the ESA that
indicates any awareness on Congress's part that they were potentially
abrogating treaty rights. But that is just my 2 cents.


Dale Goble
somewhere east of seattle