Washington Law Review


Karl Forsgaard


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.

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