Notably, the Court decided not to rule on three issues before it. First, the Court specifically stated that it was not resolving the question of whether the ESA abrogated Indian reserved rights. However, the Court in one section of its opinion indicated that it agrees that the ESA does not address tribal reserved rights. The Court stated that “Congress’ failure to discuss [Indian treaty shield to hunt eagles] in the context of the [ESA] did not revive that right.” One might conclude from such a statement that the Court would have found that the ESA did not abrogate Indian reserve rights if it had chosen to consider this issue. Second, the Court also expressly stated that it would not address the government’s argument that “Dion’s hunting is outside the scope of the treaty right because that right does not protect hunting ‘to extinction.’” Finally, the Court did not rule on religious freedom claims raised by amici. As discussed below, the Billie court considered all three of these issues and resolved them against the tribal rights.
In Billie, James Billie, a member and chairman of the Seminole Indian Tribe, was charged with violating the ESA for taking an endangered Florida panther on the Big Cypress Seminole Indian Reservation. The Florida District Court found that the question of whether the ESA abrogates Indian hunting rights “presents a question of first impression in the Eleventh Circuit” since the Court had “expressly left unresolved the question of whether the [ESA] abrogates Indian hunting rights” in Dion and the Eighth Circuit’s en banc opinion was “not binding on this court.” The Billie court then went on to hold that the ESA did abrogate Indian hunting rights “based on both the character of their hunting rights and on the Act’s abrogation of those rights.” As to the character of Indian hunting rights, the Billie court relied upon non-ESA cases in which Indian rights to hunt and fish were regulated to conclude that “Indian rights to hunt and fish are not absolute.”
