GIBSON, and R. Before JOHN

WOLLMAN, Judges, Circuit Judge. BROWN,* Senior Circuit GIBSON, Judge. Circuit R. JOHN Aanerud, Vincent Richard Ronald ap- Morinville Rae Morinville, and Rhonda convictions peal their violation permits in without Circuit, designation. sitting * BROWN, Fifth for the Senior JOHN R. HONORABLE Appeals Judge, States Court Circuit (1982) and 50 Treaty C.F.R. 27.51 States and the Indians. court,1 Indians, Before the district 16 Stat. 719 (March 19, 1867) 1867). (Treaty of It is charges against argued lants them well-settled that the even govern- should be dismissed because the *3 though it relates agricultural ment’s enforcement violated their pursuits express and makes no reference to equal pro- constitutional under the hunting fishing rights, and reestablished tection clause of the fifth amendment in Chippewa’saboriginal rights the Minnesota (1) ways: government’s prosecu- two rice, hunting, fishing, collecting and tion of them constituted selective enforce- extinguished by which had been laws; (2) government ment of the and (Febru February 10 Stat. 1165 allowed Native Americans to take leeches. 22, 1855). ary See White Earth Band The court denied their motions dismiss. Alexander, Appellants plea then entered a conditional (D.Minn.1981) F.Supp. (“[t]hese guilty under Rule of the Federal aboriginal rights relinquished by the Procedure, thereby Rules of Criminal re- Treaty of reacquired by but later serving appeal their the court’s 1867”), aff'd, Treaties of 1864and 683 F.2d denial of their constitutional claims. These (8th Cir.1982)(White II) Earth appeals followed. For the reasons set out (“[t]he Band’s [White Earth] below, we affirm the district court. fish and wild rice is an attribute of 29, 1987, Aanerud, May daughter, his sovereignty”); Clark, its inherent State Morinville, husband, Rhonda and her (Minn.1979)(members 282 N.W.2d Morinville, apprehended by were the Unit- of the White hunting Earth Band had and (Wild- ed States Fish and Wildlife Service fishing rights within the Service) life trapping while leeches2 in the Reservation); White Earth State v. Borgrund Krebsbach Waterfowl Pro- (Minn.1977)(en banc) 262 N.W.2d duction County, Areas Mahnomen (“[u]nder these [Treaty treaties of 1855and Minnesota. The subsequently trio was Treaty of 1867] [Leech Lake] charged violating unextinguished retained an right to hunt C.F.R. 27.51.4 The occurred and fish the Leech Reservation]”). Lake [on on government land owned the federal argu- couch their and within the confines of the White Earth ments in terms of differential treatment of Indian Reservation. The admit- non-Indians and Indians. The issue before tedly staged provide the event in order to a us, however, involves the distinction be- test challenge legality case to of leech tween members of the White Earth Band trapping by Native Americans under histor- (White of the Minnesota treaty rights. ic Band) and non-members. Non-members in-

The White Reservation was cre- Americans, clude non-Native as well Na- as ated an 1867 between the United tive Americans not affiliated with the Alsop, 1. The Honorable against Donald D. another would be an offense the Unit- Judge States, District for the punishable District of Minnesota. principal. ed is as a U.S.C. 2.§ controversy 2. The in this case centers around trapping. normally the leech Leeches are used regulation 4.This states: bait, fishing commonly trapped and are Disturbing, injuring, damaging § 27.51 sold to fishermen. plants and animals. (a) provides: Disturbing, injuring, spearing, 3. This statute poison- ing, destroying, collecting attempting Principals 2.§ disturb, (a) injure, spear, poison, destroy Whoever or col- commits an offense aids, abets, counsels, any plant any lect or animal the United States or commands, national wild- refuge prohibited procures except by special per- induces or its commis- life is sion, punishable principal. permitted as a mit unless otherwise under this (b) willfully Subchapter Whoever causes an act to be C. directly performed by done which if him or C.F.R. § 27.51. permits, non-Indi- ing leeches without but Earth Band.5 were, they appellants argued that were ans I. prosecution and of selective victims deprived of were contended apprehension, the time of At special preference because the to commercial- properly licensed lants had no Indians on this matter given law.6 Minnesota ly trap leeches in the law. upon support com- were conditioned These licenses zoning ordinance and with local plying accepted govern- district court charged with tak- laws. that Native ment’s Production in a Waterfowl ing leeches granted to non-Na- enjoy certain such prohibits Area. *4 denying appellants’ In Americans. tive permit, special a because trapping, without dismiss, to the held motions produc- compatible with waterfowl it is not per- trap special right to leeches without a however, has prohibition, goals.7 This tion aboriginal rights to arose from mit apply to Native it does not exception: one by fish established and hunt Areas Production in Waterfowl extinguished never been which has appropriate confines within the located then entered Congress. by Attorney, United States reservations. reserving right guilty pleas, conditional exception was that this argument, states in Rule of the Federal appeal, under to decision by an executive branch created Procedure, the denial of Rules Criminal Chippewa’shistoric based on which was Appellants were to dismiss. motion given suspended prison sen- and fined the district February before tences, violating leech- on not conditioned court, moved for a dismissal year. for one laws They argued against them. charges Wildlife Service violated II. the fifth amendment clause of in area trap allowing only Indians by this court is wheth- before The sole issue Appellants contended permit. a without treaty rights to Chippewa’s Indians granted the Wildlife Service provide legit- fish, wild rice and area leeches in the permits special distinguishing between basis for imate permits were and that no such question, in the White by members of trapping leeches Further, they main- to non-Indians. issued within Band and non-members required Indians who were tained receive, these have, eligible to and were these Appellants contend prosecuted for not permits were legitimate ba- such a do not afford Because permits. taking leeches without argue that their They for tak- prosecuted sis. these Supervisor, Fish United States Division “Indians who we stated that White Earth II In Service, Band are states that: Wildlife Earth] of the [White are not members hunting, regard to with treated fishing, non-Indians trapping is managers feel that leech Wetland gathering the [White rice and wild production compatible waterfowl n. 3 F.2d at 1132 Reservation.” Earth] nesting waterfowl goals it disturbs because (citing Washington v. Tribes of Confederated broods, populations of in- reduces and their 134, 161, Colville, 447 U.S. waterfowl, by and at- vertebrates consumed (1980)). L.Ed.2d predators which are tracts and concentrates nontarget License, bait and to discarded drawn had Minnow Dealer’s Aanerud a License, Dealer's catches. Helper and a Minnow Minnow review, Sieg- Rollin F. purposes DeBoer from of our Mr. License. For Letter to Merle Vehicle party fried, Fish Supervisor, that Aanerud his we assume properly Division trap Service, Minne- leeches under regarding Ser- licensed Wildlife law. concerning sota leech policy vice’s Brief, Areas, Appellee’s Production Waterfowl cited December a letter dated II. Addendum Siegfried, Rollin F. parties in this both 345; Clark, present violated 262 N.W.2d at have been Although trapping policy ways. They in two N.W.2d at 909. leeches Wildlife Service charges against only prevalent them become in the last fif argue first that trap years, because the Wildlife teen the Band’s should be dismissed policy recognized by constitutes se- has been the Wildlife Ser Service’s and, next, prosecution, Popowski, Acting vice. Letter from lective John Director, treating Regional Depart Wildlife Service’s United States Interior, differently improper, in ment of the Band members Fish Wildlife Ser vice, Congress’ obligation Durenberger, linked that it is not to the Honorable Dave Senator, equal protec- August to Native Americans. These Brief, arguments overlap considerably. Appellants’ Re- Addendum 3. These valid, gardless, appellants’ argu- treaty rights indefinitely we will consider remain un specifically abrogated. ments in turn. less Unit Dion, 734, 738, ed States v. A. And since these have not been abro per first contend that gated by Congress, the first element re mitting Indians to take leeches without *5 quired prosecution for a selective defense mits, non-Indians, prosecuting while consti not been established. prosecution tutes criminal in selective viola there is Since no discrimination the guarantee tion of the fifth amendment’s of government, we need not address the sec equal protection. Appellants maintain that note, however, ond element. We do prosecution this selective serves as an ef any differentiation that occurred was not charges fective to the defense filed impermissible ground. on an based Clear prosecutive them. To establish a selective ly, the members of the White Earth Band appellants defense the must establish two differently non-members, are treated than First, they elements. must show geogra but this differentiation is based on singled prosecution out for sim while 1867, phy Treaty under the of ilarly situated individuals have not been A caught trap not on race. Band member prosecuted for similar conduct. United ping in a Waterfowl Production (8th Catlett, 864, v. 584 F.2d States Reservation, Area outside the and thus not Cir.1978). They also must show that the aegis Treaty under the of the of government’s discriminatory selection is subject penalties would be to the same impermissible based an ground on such as appellants in Geography this case. race, religion, or the exercise of constitu generally impermissible not an considered tional Id. See v. See, ground. Catlett, e.g., 584 F.2d at 866. Hintzman, (8th Cir.1986); 806 F.2d Furthermore, under Ap White Mountain Holmes, United v. 794 F.2d States Bracker, pache Tribe v. (8th Cir.1986). The district court held that (1980), it is had failed to establish either missible on reservations to treat Native requisite of these elements. Based on our Americans and non-Native Americans dif record, agree review of the we with the ferently due to Native Americans’ district court. status law. Id. at First, of the members at 2583. simply similarly and non-members not regard respective Alternatively, appellants argue situated with to their trap denying leeches within the of confines district court erred in dis hearing covery evidentiary of 1867 has and an to estab aborigi- argument prosecu been held to have reestablished the lish their for a selective defense, nal of of citing members the White Earth tion States v. Cam United misano, (8th Cir.1976). Bank fish and rice within 546 F.2d the confines of the in White Earth Reserva- While we held evidence Cammisano order, II, 1137; discovery tion. See White Earth 683 F.2d at to be sufficient to merit a B. allegations “mere stated a authorize not do is also prosecution selective second Appellants’ fishing expedi- a engage in guarantee defendant based Jacob, 781 fifth by the provided In Id. tion.” the laws great- in Cir.1986), the Wildlife argue we set out (8th They F.2d amendment. to merit violates established be what must detail the differ evidentiary hear- because clause an discovery or further can given Native make must first treatment ent defendant ing. "The Congress’ fulfillment to “the showing of tied not be threshold preliminary the Indians.” obligation toward unique prosecu- selective of the elements essential Mancari, Catlett, Morton See at 646. defense.” 2474, 2485, 41 L.Ed.2d only S.Ct. hearing is necessitated (“A at 866 ad did court district facts alleges sufficient motion when opinion because its argument this dress state, the frivolous past question prosecution to the selective close ties itsof as to doubt a reasonable raises argument. omitted)). (citations purpose” prosecutor’s recog- make a Court failed In Mancari elements that: showing of either nized threshold de- legislation prosecution every piece Literally selective necessary reserva- did tribes Therefore, dealing Indian district fense. dealing evidentiary legislation tions, certainly all grant failure in its err special treat- BIA, single out discovery. hearing or liv- constituency of tribal ament *6 dis If these argue that reservations. Appellants on or near their relation- historical failing laws, to address from derived erred trict help only to required designed were ships explicitly argument dis- racial invidious Indians, deemed Service were Wildlife under permits have the United Title crimination, of failing entire for prosecuted rules, but U.S.C.) be effec- (25 would Code con requirement. meet commitment solemn and the tively erased Earth Band that, the White if even tend the Indians toward the Government leeches, are right to treaty has jeopardized. be would sup To permits. secure required to still doc 2483. See Moe two S.Ct. at appellants cite 94 at position port Tribes, U.S. Americans & Kootenai stating that Native Salish uments L.Ed.2d 480, 96 S.Ct. historic permits supplied this histori- is in Accordingly, Rol- (1976). from “[i]t is a letter One document the constitutional that legal context Ser Wildlife cal discussing the Siegfried F. lin to be is preference the Indian validity of relating to the exception vices 553, 94 at Mancari, 417 U.S. determined.” area. Lakes Detroit to the 2484. at S.Ct. amendment is the document second it is well estab- National Tarmarac previously, stated Plan for As Master ab- concerning the White Earth White Refuge lished that Wildlife hunt, fish, and It is refuge. that original rights on Band’s Earth Reservation. Earth Lakes White Detroit on the rice wild to observe sufficient 1137; at II, Reserva See the White within is not area 345; Clark, 282 at trap N.W.2d Furthermore, despite at 909. N.W.2d the Tamarac leeches ping recent a rather fact that argument Further, we note reservation, sat- arewe development on have required to Chippewa were ambit within firmly it fits rules, isfied which mits sup- position rights, aboriginal Band’s rights, can contrary to their may run Therefore, Service. by the Wildlife ported appellants. comfort no give ality given statute, rule, we are that since the regulation, satisfied Band’s of a sufficiently practice. to take leeches is tied to “the Congress’ unique obligation fulfillment of very prosecution When one seeks the Indians,” toward the the Wildlife Service’s which it incongruous materializes would be awry does not run government, responding to hold that the equal protection Mancari, clause. importunities, effect to such has committed U.S. at at some kind of constitutional violation in that, Finally, serving up deliberately we note even in the absence the mechanism so treaty rights, sought. Court has upheld singling out Native

special Mancari, treatment. See U.S. 547-48, 2481-82;

at 94 S.Ct. at McClana Arizona, han v. State Tax Comm’n 164, 165, L.Ed.2d 129 This treatment Americans, for Native which we have also discussed in the above context of the selec BUSH, Appellee, Cleda D. prosecution tive arguments, fully answers equal protection arguments asserted appellants. Alvin G. TAYLOR and Barbara F. Taylor, Appellants.

Therefore, appellants’ second also fails. pros- We further observe that a No. 88-2145. n charges, ecution of criminal even in an Appeals, United States Court of staged, event that is is less than a satisfac- Eighth Circuit. tory raising vehicle more, say claims. leaving We no coun- Sept. 14, Submitted sel the developing task of a more desirable Decided Jan. asserting method for these claims.

III. reasons, For the above mentioned affirm the district court’s denial of lants’ motions to dismiss. BROWN,

JOHN R. Judge, Circuit concurring. fully

I Judge opinion concur Gibson’s disagreeing for us. Without opin- “prosecution ion statement that of criminal charges ... is less than a ... vehicle for raising equal protection leaving claims thus develop] counsel a method for assert- [to claims”, these I would add these brief

comments. challenge prosecution, selective First,

certain factors emphasis. bear prosecution was not out of the blue. In-

deed, it was purposefully sought for the

now jurisprudentially legit- established objective

imate of frank civil disobedience as a means of challenging the constitution-