Subject: Re: Fwd: Makah Use Military Weapons on Gray Whales
Date: Aug 17 19:08:42 1997
From: Don Baccus - dhogaza at pacifier.com


At 02:41 PM 8/17/97 -0700, you wrote:

>A bit of law to season the stew:

>Congress may unilaterally abrogate treaties

Ahhh, yes, otherwise it might make it difficult to defend the
realm, etc, being hemmed-in by treaties left and right. Perhaps
one's opponent might break one, but not another which would prevent
a reaction if we couldn't unilaterally break treaties...or limit the
kind of reaction we might take (i.e. imposing economic sanctions despite
economic treaties guaranteeing free trade or the like).


>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.

OK, this makes sense.

>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.

Arcane! I love it! Sometimes I wish I'd become a constitutional law
scholar.

>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.

Yes, it would be foolish for them to do so given the current make-up of
the Court.

Just for our education, when two Circuit Courts interpret law differently,
then District Courts in those two Circuits will do so as well, right? If
they didn't, of course, an appeal to the Circuit Court would just yield
the same rulings unless the make-up of the Circuit Court changes, no?

A total off-the-subject note that does potentially impact birds (or, at
least their conservation) - the breaking up of the 9th Circuit. The goal,
as you might imagine with the likes of Slade Gordon supporting this, is
to remove conservation/environmental cases from the jurisdiction of this
San Fransisco-based Court, with hopes of delaying the implementation and
filling of seats on the new circuit delayed until good, old, pro-timber,
pro-cow, pro-"True Western Values" judges can be nominated and confirmed.

There's been remarkably little press on this, in part perhaps because this
Circuit handles so many cases that it seems difficult to argue that it's
not overloaded.

>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.

And it takes more than 2 cents to buy a seat on the Supreme Court, right? :)



- Don Baccus, Portland OR <donb at rational.com>
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