While hunting for deer on his reservation, Dean Fryberg, an Indian, shot and killed a bald eagle. Although he had a treaty right to hunt on the Tulalip Reservation under the 1855 Treaty of Point Elliot, Fryberg was charged by information with taking a bald eagle in violation of the Eagle Protection Act of 1940. He did not possess a permit which would have allowed such a taking under the Act. This note concludes that the loose test used to find abrogation in Fryberg is unsatisfactory where a statute regulating a nonendangered resource is involved and instead proposes an alternative test for determining whether abrogation has taken place. Basically, the proposed test facilitates a finding of abrogation where endangered resources are involved and inhibits such a finding where nonendangered resources are involved. The proposed test would achieve the same result regarding eagles as reached in Fryberg, without creating the potential for undesirable results for nonendangered resources.
Statutory Construction—Wildlife Protection Versus Indian Treaty Hunting Rights—United States v. Fryberg, 622 F.2d 1010 (9th Cir.), cert. denied, 449 U.S. 1004 (1980),
57 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol57/iss1/10