John Bernitz

1101 West 7th Avenue

Anchorage, Alaska 99SO1

Voice: 258-4115

FAX: 258-6419

Attorney for xxxxxxxxxxxxx

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

Plaintiff

VS.

xxxxxxxxxxxxxxxxxxx

Defendants.

A period of excludable delay will result from this motion.

MOTION TO DISMISS THE INDICTMENT

COMES NOW xxxxxxxx xxxxxxxx, through counsel, to move this Court for an order dismissing the indictment. The United States has charged Mr. xxxxxxx with violation of 16 U.S.C. § 1372 and conspiracy to violate 16 U.S.C. § 1372. 16 U.S.C. 1372, however, does not prohibit his alleged conduct. The United States has failed to allege facts supporting a criminal act. This case should be dismissed.

Dated this 26 th day of June, 1998.

John Bernitz

1101 West 7Th Avenue

Anchorage, Alaska 99501

Voice: 258-4115

FAX: 258-6419

Attorney for Gabriel xxxxxxx

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

UNITED STATES OF AMERICA,

Plaintiff

VS.

GLEN IYAHUK, ORVILLE Case No: A97-151-CR (JWS)

AKHINGA, JR., ROBERT SOOLOOK,

DENNIS SOOLOOK, GABRIEL

xxxxxxx, and PATRICK OMIAK, SR.,

Defendants.

MEMORANDUM IN SUPPORT OF

MOTION TO DISMISS THE INDICTMENT

Introduction

The United States alleges that Gabriel xxxxxxx returned from a walrus hunting trip with too many heads and too little meat. It infers that xxxxxxx left some walrus and has charged him with "wasting" walrus in violation of the Marine Mammal Protection Act ("MMPAI"), 16 U.S.C. § 1372. As passed by Congress, the Alaska Native Exemption to MMPA permits Alaska Natives to hunt walrus solely for their ivory. There is, therefore, no basis for these criminal charges.

This issue was previously addressed in United States v.Clark, 912 F.2d 1087, 1090 (9^th Cir. 1990) . The panel decided that a Fish and Wildlife Service ("FWS"') regulation prohibiting hunting walrus for their ivory was "consistent with Congressional intent.,, Id. The panels conclusion is an error. This motion challenges the holding in Clark.

Statement of Pertinent Facts

At 1:15 in the afternoon of May 23, 1997, Larry Dickerson, a wildlife biologist with FWS observed xxxxxxx and seven or eight others return from an overnight hunting trip. The native crafted walrus skin boat in which they were traveling was "low in the water." Dickerson affidavit at 00022. The hunters had been successful. The village of Little Diomede, where Mr. xxxxxxx lives, depends on hunting walrus for both food and income. Ivory is traded at the local store for goods and services. The walrus hunting season for Little Diomede is in the spring when the walrus migrate past Little Diomede on their way north. The 1997 season had been disappointing because weather prevented hunting walrus from about May 16, 1997 until May 22, 1997. Prior to the hunt on May 22, 1997, Dickerson reported that the villagers had harvested 131 walrus. Dickerson affidavit at 00022.

Dickerson saw what he believed was "not enough meat or parts to comply anywhere close to what the law requires for non-wasteful take." Id. The indictment charges that xxxxxxx "killed approximately 33 adult walrus" and that "of the 33 walrus killed. . .they wastefully took approximately 10 walrus, inasmuch as some portion of meat, flipper, liver and coak, were not salvaged from each of these animals." The waste was alleged to violate16 U.S. C. § 13 72 (a) (2) .

Argument⁽¹⁾

I. Indictments Alleging Criminal Statutory Violations Must Be Dismissed If The Government's Alleged Facts Do Not Support A Statutory Violation.

When deciding a whether to dismiss an indictment based on challenge to the statutory interpretation, courts determine "whether the indictment adequately alleges the elements of the offense and fairly informs the defendant of the charge, not whether the Government can prove its case." United States v.Blinder,10 F.3d 1468, 1471 (9th Cir. 1993). Here the government alleges that taking walrus heads while harvesting a substantial portion of their bodies is waste under the MMPA. The indictment must be dismissed if the government's statutory interpretation is incorrect and the acts charge do not violate the MMPA.

II. The Statute Alleged to Have Been Violated Does Not Require Alaska Natives To Collect Meat Or Body Parts, When They Are Hunting Walrus Ivory For Native Crafts.

A. The Statutory Background.

The MMPA prohibits killing any marine mammal. 16 U.S.C. § 1372(a)(2). There are numerous exceptions to this prohibition. The exception relevant here is one explicitly applying to Alaska Natives. 16 U.S.C. § 1371(b) provides:

[T] he provision of this chapter shall not apply with respect to the taking of any marine mammal by any Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean if such a taking --

(1) is for subsistence purposes; or

(2) is done for purposes of creating and selling

authentic native articles of handicrafts and clothing" Provided, That only authentic native articles of handicrafts and clothing may be sold in interstate commerce: And provided further, That any edible portion of marine mammals may be sold in native villages and towns in Alaska or for native consumption. For the purposes of this subsection, the term "authentic native articles of handicrafts and clothing" means items composed wholly or in some significant respect of natural materials, and which are produced, decorated, or fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or other mass copying devices. Traditional native handicrafts include, but are not limited to weaving, carving, stitching, sewing, lacing, beading, drawing, and painting; and

(3) in each case, is not accomplished in a wasteful manner.

16 U.S.C. § 1371. The statute, by its express terms, permits Alaska Natives to hunt for either food or handicrafts. Didrickson v. United States Department of Interior, 982 F.2d 13 32 , 1334 (9th Cir. 1992). While Alaska Natives are not permitted to accomplish either of these goals wastefully, they are not required to do both simultaneously. The statute does not, for example, require Natives to keep ivory when hunting for walrus meat. Similarly, the statute does not require that Alaska Natives keep walrus meat when hunting for ivory. The statute would prevent hunting for ivory in a "wasteful manner", i.e., killing walrus and leaving the ivory on the ice.

The FWS promulgated regulations defining "wastefully manner":

Wasteful Manner means any taking or method of taking which is likely to result in killing or injuring of marine mammals beyond those needed for subsistence purposes or for the making of authentic native articles of handicrafts and clothing or which results in the waste of a substantial portion of the marine mammal and included without limitation the employment of a method of taking which is not likely to assure the capture or killing of a marine mammal, or which is not immediately followed by a reasonable effort to retrieve the marine mammal. 50 C.F.C. § 18.3. While this paragraph sentence is less than lucid, it clearly adds a requirement that Alaska Natives must retain a "substantial portion" of the animal. They must keep this substantial portion whether the animal was killed for subsistence or handicrafts. The new "substantial portion" requirement is inconsistent with the plain language of the statute and the express Congressional intent.

B The FWS Interpretation Of The Alaska Native Exception Would Render A Portion Of The Marine Mammal Protection Act Redundant And Is, Therefore, Inconsistent With The Statutory Language.

The Alaska Native exception authorizes Alaska Natives to hunt marine mammals for two purposes: subsistence and creating handicrafts for sale. 16 U.S.C. 1371(b). If Congress intended the term "wasteful" to require Natives hunting for body parts to create handicrafts to salvage a "substantial portion" of each animal taken, and if "substantial portion" means "meat, flipper, liver and coak", then there is no practical difference between the two alternatives. The practical impact would be the same as if the exemption permitting hunting for handicrafts, 16 U.S. C. § 1371 (b) (2) , was repealed. While it may be the result the FWS prefer, it is not the result the Congress intended. Statutes should not be interpreted in a manner that renders another section of the same statute meaningless. Colautti v. Franklin, 439 U.S. at 392, 99 S.Ct. at 675; Hughes Air Corporation v. Public Utilities Comm'n, 644 F.2d 1334, 1338 (9th Cir. 1981) Bouba v. Graham, 736 F.2d 13171 1320 (9th Cir. 1984) (holding that "in construing a statute, it is the duty of the court to give significance to every word, phrase and part of an Act in pursuance of the legislative purpose, and to give effect to the statute as a whole, and not render it partially or entirely void.").

The "substantial portion" requirement violates the rule.

The Statute creates a scheme where Alaska Natives have two options to hunt walrus. They can either hunt walrus for the edible products or they can hunt them for their ivory. The FWS regulation changes this scheme by adding the additional requirement that when hunting for ivory, Alaska Natives must also keep a substantial portion of the edible animal. The regulation, thereby, eliminates the distinction between these options and renders the handicraft exemption redundant. Under the misguided FWS regulation, Alaska Natives are no longer permitted to hunt walrus for their ivory.

C. The FWS "Substantial Portion" Recruitment Violates the Express Intent of Congress.

The MMPA text and legislative history indicate that FWS's inclusion of the "substantial portion" requirement in its "wasteful manner" regulation was an unlawful attempt to legislate. In 1971, a consortium of environmental organizations asked Congress to preempt State control of marine mammal management and impose a national moratorium on taking. In response to the request, MMPA bills were introduced in the House of Representatives, all of which were referred to the Committee on Merchant Marine and Fisheries. Inside the Committee the bills were referred to the Subcommittee on Fisheries and Wildlife Conservation chaired by Representative John Dingell.

In addition to establishing a national moratorium, as introduced, H.R. 10420, the MMPA bill the Committee later reported, contained a narrow Native hunting exemption:

The provisions of this title shall not apply with respect to the taking of any marine mammal by Indians, Aleuts, or Eskimos who dwell on the coasts of the North Pacific or Arctic Oceans if such taking (1) is done solely in accordance with customary traditions as an adjunct of the Native culture, and (2) is not done for purposes of direct or indirect commercial sale or resale.1971 House Hearings at 16 ("Section 107").

In September 1971, the Subcommittee held four days of hearings on H.R.10420. At the time Alaska's sole representative in the House of Representatives was Nick Begich. Representative Begich was not a member of the Merchant Marine and Fisheries Committee. 117 Cong. Rec. 1713-14 (1971).

On September 17 Representative Begich testified before the Subcommittee. He was accompanied by Alaska's two Senators: Mike Gravel and Ted Stevens. 1971 House Hearings at 311-26. None of the three challenged the narrow scope of the Native hunting exemption.

On December 4 the Merchant Marine and Fisheries Committee reported an amendment in the nature of a substitute for H.R. 10420. H. Rep. No. 707, 92d Cong., 1st Sess. (1971) [hereinafter "House Rept." ] . The amendment rewrote section 107 to add a new element. The rewrite exempted Native hunters from the moratorium so long as their taking of marine mammals "(1) is for subsistence purposes and in accordance with traditional customs, (2) is not accomplished in a wasteful manner, and (3) is not done for purposes of direct or indirect sale." Id. at 7 (emphasis added).

Although the definition section of the amendment did not define "wasteful," the report's description of Native walrus hunting gave an indication of the type of hunting practice the "wasteful" prohibition was intended to curtail. According to the report:

The only American stocks of walruses are found off the Alaska coast in the Bering Sea. Walruses are not significantly taken by U.S. citizens other than Eskimos, although they are not thereby assured of protection. There are no hard figures, either of the size of the walrus herd, or of the extent of Native taking. The most commonly used hunting technique, according to the evidence before the Committee, is for groups of Eskimos to float down upon a number of walruses on ice floes, and then to fire indiscriminately into the herd. Those walruses which escape into the sea are lost, while those who remain dead or immobile are taken. It also appears that the principal, or at least a principle, purpose of walrus hunting today is for their ivory tusks. Walrus meat had previously constituted a staple commodity for the Eskimos as a source of food for their dog teams, but since the dog teams have largely been replaced by snowmobiles, this incentive for killing has almost disappeared. Id. at 16-17. The report focuses on hunting in which (to quote the inoffensive portions of 50 C.F.R. § 18.3) the method of taking "is not likely to assure the capture or killing of a marine mammal, or which is not immediately followed by a reasonable effort to retrieve the marine mammal." This reflects a concern Representative Dingell expressed during the hearings about reports that Native hunters had indiscriminately shot walrus on ice floes in situations in which retrieval was unlikely. See 1971 House Hearings at 456-58.

Although he did not object to the report's description of waste, by the time H.R. 10420 reached the House floor Representative Begich had become uneasy about the hardship enactment of the Native hunting exemption that the Committee amendment might inflict on Native hunters, particularly walrus hunters. As the report explained the exemption's narrow purview:

If a Native kills a walrus for subsistence purposes, the bill does not prohibit the use of ivory from that walrus, tusks so long as the primary purpose for taking was that of subsistence. If, on the other hand, an Eskimo wishes to take a number of walruses primarily for the purpose of selling their tusks, he may not do so without a permit. House Rept. at 27.

During the debate on H.R. 10420 Representative Begich asked Representative Dingell, the bill manager, to explain the operation of the Native hunting exemption in the Committee amendment. 118 Cong. Rec. 7692-93 (1972). Dingell responded that the exemption meant what its language expressed. Dingell told Begich:

If, for example, a Native kills one, two or three walruses for subsistence purposes, and not for purposes of sale, that Native can keep the ivory tusks, and carve them and sell them without requiring a permit or running afoul of the law. If, on the other hand, a Native goes out and kills several walruses for their ivory, and discards all but the head -- a practice which I understand is far from uncommon -- he cannot do so without a permit from the Secretary of the Interior. I recognize that it will not always be easy for an enforcement agent to determine the precise purpose for which an animal was taken, but to our way of thinking, the distinction is sufficiently clear to provide the Natives with the possibility of continuing their subsistence hunting activities without at the same time opening up the potentialities of wide scale commercial depredations upon the animal populations involved.Id. at 7693.

Since the report on H.R. 10420 acknowledged that the Committee understood that [the principle] purpose of walrus hunting today is for their ivory tusks, 11 rather than meat, as a result of Representative Dingell's explanation, Representative Begich realized that, if enacted, the Committee's Native hunting exemption would prohibit hunting on which an important segment of the limited cash economy of many coastal villages depended.

To prevent that result, Representative Begich offered an amendment to the Native hunting exemption to allow Natives to receive permits to hunt marine mammals for the exclusive purpose of obtaining body parts for the "production of traditional Native arts and crafts intended for commercial sale." Significantly, the amendment prohibited "wasteful" use. Id. at 7702-03.

In a letter to his colleagues asking for their support, Begich argued:

[S]uch a moratorium says to the Natives of Alaska that, without exception and without any chance for a permit based on rational fact-finding, the large portion of the Native economy based on arts and crafts made from ocean mammals is simply terminated for five, ten or twenty years. Consider these factors. The need for this small culturally-centered commercial activity is based on the cash economy brought upon the Natives, which has displaced large parts of the subsistence economy. Although it cannot be demonstrated that this activity makes any significant impact on the ocean mammals, it is a large and crucial part of the livelihood of a great many Alaska Natives.

Emphasis in original). Id. at 7703.

But Representative Dingell was not persuaded. In his view, adoption of the Begich amendment would set up "a situation that the committee considered very carefully and found objectionable, and that is, commercial harvesting by Alaska Natives. Id. at 7703 - 04 . The Begich amendment was defeated on a voice vote. Id. at 7706.

As a result, prior to the vote on final passage of H.R. 10420, Representative Begich announced that he would vote no.

Begich told the House:

[T]he moratorium says to the Natives of Alaska that, without exception and without any chance for a permit based on rational fact finding, the large portion of the Native economy based on arts and crafts made from ocean mammals is simply terminated for 5 years . . . I am unwilling to tell the many Natives in Alaska who must discover immediately a new source of income, and incidentally a new cultural plan, that I voted for the legislation that stopped them from continuing their traditional crafts.

Id. at 7713. Despite Begich's concern about the effect of the bill on his constituents, livelihood, H.R. 10420 passed the House by a vote of 362 to 10. Id. at 7716.

Had the House version of H.R. 10420 been enacted into law, Gabriel xxxxxxx would clearly be guilty of violating the MMPA by killing a walrus, taking the heads and leaving the meat.⁽²⁾ He would not, however, have been guilty of waste because he harvested the ivory. He would have been guilty of taking a marine mammal in violation of the moratorium for a purpose other than subsistence. The House version was not enacted.

The Senate version of the Native hunting exemption was the version enacted into law. The Senate version was purposely drafted to authorize what the House version prohibited.

Alaska Natives, ability to express their concerns was significantly better in the Senate than it had been in the House. All Senate MMPA bills, including H.R. 10420, were referred to the Commerce Committee. Alaska Senator Ted Stevens was a member both of the Committee and of the Subcommittee on Oceans and Atmosphere to which the Committee referred the bills. See "Ocean Mammal Protection: Hearings on S. 685, et al., before the Subcomm. on Oceans and Atmosphere of the Senate Comm. on Commerce, 92d Cong. 2d Sess. , Part I at ii (1972) ("1972 Senate Hearings").

As introduced, all Senate MMPA bills contained a narrow "subsistence-only" Native hunting exemption modeled on the exemption in H.R. 10420 to which Stevens had not objected when he testified on the MMPA in the House. Id.

However, by the time the Subcommittee on Oceans and Atmosphere began its consideration of MMPA legislation, word that Congress was on the brink of enacting a patently unfair Native hunting policy had finally reached Alaska and the Subcommittee was soon flooded with protest letters. For example, the village council at Savoonga, one of the most-ivory dependent villages in the Bering Strait, wrote:

No full time employment available part of our major income comes from the sales of ivory carving and the sales of the skins of the animal. This short (sic) of small income provides us a year round mains (sic) of income. If this Act of Terminating the major resource of our income it would create more request for Federal Assistance . . . .

Id. at 675.

Making the same point, Charles Degnan, an Eskimo from Unalakleet, a Native village southeast of Nome, and a member of the Alaska House of Representatives, wrote:

The nature of subsistence living has changed slowly over the years. In this change, we have incorporated the sale of ivory, ivory carvings, baleen baskets, mukluks, parkas, and other unique items, such as the oosik, to many who desire them. The cash received from these unique items is used to buy the products we have learned to depend upon in the process of modernization of our communities. I urge you to keep the law open to the idea of permitting the people to continue using sea mammals for commercial purposes in addition to the conventional idea of subsistence living.

Id. at 688.

Stevens responded to the outpouring of concern in two ways. First, he introduced a MMPA amendment that amended the Native hunting exemption to authorize Natives to hunt for "handmade Native arts and crafts and clothing" in addition to hunting for meat. Id. at 137.

Second, he convinced Senator Warren Magnuson, chairman of the Commerce Committee, to allow him to chair field hearings in Alaska. In May 1972 Stevens chaired hearings in Nome and Bethel, the large communities nearest the most marine mammal dependent villages. one hundred and eight witnesses testified. 1972 Senate Hearings, Part II.

The field hearing record convinced Magnuson and Senator Fritz Hollings, the Subcommittee chairman, that the House approach was wrong. As a result, the version of the MMPA the Commerce Committee reported as an amendment to S. 2871 contained

the following Native hunting exemption section:

The provisions of this Act shall not apply with respect to the taking of any marine mammal..... by any Indian, Aleut or Eskimo who dwells off the coast of the North Pacific Ocean or the Arctic Ocean if such taking

(1) is for subsistence purposes by Alaskan Natives who reside in Alaska, or

(2) is done for purposes of creating and selling authentic Native articles of handicrafts and clothing ; and

(3) in each case, is not accomplished in a wasteful manner.

118 Cong. Rec. 25,247 (1972)(Emphasis added).

Although the language was an improvement, it did not go as far as Senator Stevens would have liked. s he explained when S.2871 was reported:

Alaska Natives are not totally exempt under this bill. They should be. If the problems of these citizens were fully recognized and their needs provided for, they would be. Many Alaska Natives are completely dependent upon ocean mammal resources for their existence. For these people, ocean mammals provide not only food and clothing, but also, through the sale of meat, seal oil, handicrafts, and clothing, the only available source of money income with which they may purchase a few of the basic human needs taken for granted by everyone else in America. I feel our nation is morally bound to respect the traditions and life style of these people. They do not waste these mammals. They live in an area of the world as harsh as any on the f ace of the globe. They cannot afford to waste any animal, nor even part of one.

S. Rep. No. 863, 92d Cong., 2d Sess. at 57 (1972).

On the Senate floor, Senator Hollings, the bill manager, announced that he would defer to Stevens "for further elaboration on this point." 118 Cong. Rec. 25,254 (1972).

Senator Stevens then proceeded to explain to the Senate how the S. 2871 Native hunting exemption was intended to operate. In doing so, Stevens made considerable effort to describe the importance of Native marine mammal hunting to obtain animal parts for handicrafts and clothing, rather than meat. at 25,258-63. Stevens told the Senate:

For many Alaska Natives, the selling of their handicrafts, fashioned painstakingly and with great skill from ocean mammals is the sole basis of their cash economy. These include the carving of ivory, the sewing of fur parkas and mukluks, and the sale of mammal food to other Natives.

Id. at 25,259. As the exemption's principal sponsor, Stevens, explanation of the S. 2871 Native hunting exemption should be afforded significant weight. Ernst and Ernst v. Hochfelder, 425 U.S. 185, 203 (1976).

The Senate passed S. 2871 without amending the text of the Commerce Committee's version of the Native hunting exemption. 118 Cong. Rec. 25,435 (1972). It then immediately proceeded to consider H.R. 10420, substituted the text of S. 2871 for the House text of that bill, passed H.R. 10420 and demanded a conference. Id. at 25,440.

Representative Dingell and Senator Stevens were both members of the Conference Committee. H. Conf. Rep. No. 1488, 92d Cong. , 2d Sess. at 27 (1972) . In negotiating the text of the version of the MMPA enacted into law, each understood the difference between the House and Senate versions of the Native hunting exemption: the House version limited the exemption to hunting for meat; the Senate version allowed hunting for meat and hunting to obtain animal parts for use in the manufacture of handicrafts and clothing.

As the Conference Report explains the difference:

The House bill exempted Alaskan Indians, Aleuts and Eskimos from the moratorium and the permit requirements to the extent they take an animal for subsistence purposes, not wastefully and not for direct or indirect sale. The Senate amendment extended the exemption to allow for the so-called "cottage industries" of the Alaskan Natives.

Id. at 23.

After weighing the two approaches, Representative Dingell and the House conferees receded. The conference voted to include the Senate version of the Native hunting exemption in the final MMPA text. Id. at 6. President Nixon signed the MMPA into law on October 21, 1972. Alaska Natives were permitted to hunt walrus for their parts in order to make native handicrafts.

Two months later FWS promulgated its "wasteful manner" regulation.37 Fed. Reg. 28,173, 28,174 (1972) . By subjecting hunting to obtain animal parts for the purpose of creating handicrafts to the "substantial portion" requirement and then construing "portion" to include meat, FWS intended, by administrative fiat, to abrogate the Conference Committee decision to adopt the Senate, rather than the House, version of

the Native hunting exemption. Changing the law was never within FWS's scope of authority. Ernest and Ernst v. Hochfelder, 425 U.S. at 213-14 ("The rulemaking power granted to an administrative agency charged with the administration of a federal statute is not the power to make law. Rather, it is 'the power to adopt regulations to carry into effect the will of Congress as expressed by the statute.'") As the Ninth Circuit stated in Kenaitze Indian Tribe v. State, 860 F.2d 312, 316 (9th Cir. 19__) :

While statutory words sometimes have more than one meaning, and interpreting the statute may require judgment as to which of these meanings Congress contemplated, an interpreting body may not invent a completely new meaning for a statutory term. Any other rule of construction would rob statutes of binding force and allow free rein to those who implement federal statutes to do what they wish rather than what Congress directed.

Id.

FWS continued to exceed its authority under the MMPA. FWS attempted to prohibit hunting otters. The Ninth Circuit recognized that the agency was exceeding its authority under the MMPA. Didrickson v. United States Department of Interior, 982 F.2d 1332, 1342 ("Neither the statute nor the legislative history reveals any intent to exclude sea otters, or any other species, from Native uses.",) FWS had attempted to exclude otter hunting because it claimed there was no demonstrated tradition of Natives hunting otters. The court correctly held that MMPA did not prohibit the kinds of animals that were hunted, it prohibited the means of hunting. Id.

D. The Ninth Circuit's Conclusion In United States v. Clark is Not Supported By The Statutory Language Or The Legislative History And Is, Therefore, Mistaken.

The court in Clark interpreted the clause permitting Native Alaskans to sell edible portions of the meat as a mandate that they must harvest all the edible portions from walruses hunted for ivory. United States v. Clark, 912 F.2d at 1089. The analysis is simply wrong. Congress included a provision permitting Natives to sell meat because an earlier draft had prohibited sale of any part of the animal. See House Rep. at 7 ("taking . . . (3) is not done for purposes of direct or indirect sale.") Permitting Natives to sell meat already harvested is not the same as requiring Natives to harvest all the edible portions of walrus hunted for ivory.

The question whether Natives could hunt walrus solely for ivory had already been addressed. The House version prohibited any hunting except for subsistence. This version was rejected in favor of a Senate version allowing Natives to hunt for animal parts used in handicrafts for sale. Once it was decided to allow hunting for handicrafts, the issue was how to limit the sales to cottage industries and prevent a mass commercial harvest of marine mammals. The solution was to define "authentic native article of handicraft and clothing" to exclude mass copying devices. 16 U.S.C. § 1371(b)(2).

Having limited the sale of handicrafts, Senator Stevens became concerned that the language would prevent Natives from selling meat. The bill only permitted the sale of handicrafts and clothing. Senator Stevens, therefore, amended the bill to permit selling edible portions to other natives. This was intended to preserve the economy among natives in these meats. This provision was never intended to eliminate the Native option of hunting marine mammals solely for handicrafts.

Conclusion

For the reasons stated above, the Court should dismiss this case and let Mr. xxxxxxx live a life he, his ancestors, and the walrus, have lived for thousands of years.

Dated this 25th day of June, 1998.

John Bernitz

Attorney for Gabriel xxxxxxx

1. The legislative history portions of this argument were originally written by Donald Mitchell and edited for this brief.

2. This Assumes, of course, that the government could prove these alleged facts

at trial. In the context of this motion to dismiss the indictment, xxxxxxx must assume the allegations against him are corrected. He is not making any admissions or waiving his right to vigorously contest these allegations at trial.