F I L E D United States Court of Appeals Tenth Circuit PUBLISH AUG 8 2001 UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT
In the Matter of: JOSELUIS SAENZ,
Claimant - Appellee, vs. No. 00-2166
DEPARTMENT OF INTERIOR,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 99-21-M)
Peter Schoenburg (Jerilyn DeCoteau and Larane Arbaugh, Student Attorney, University of Colorado at Boulder, School of Law, Indian Law Clinic, Boulder, Co., on the brief), Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Enfield, Albuquerque, New Mexico, for Claimant - Appellee.
Jared A. Goldstein (Lois J. Schiffer, Assistant Attorney General, Sasha Siemel and E. Ann Peterson, U.S. Department of Justice, Washington, D.C.; Of Counsel: John D. Leshy, Solicitor, Mary Anne Kenworthy, Benjamin C. Jesup and Janet Spaulding, Department of the Interior, Washington, D.C., on the briefs), for Defendant - Appellant.
Before KELLY, MCKAY, and MURPHY, Circuit Judges.
KELLY, Circuit Judge. Defendant-appellant, the United States Department of Interior (“the
government”) appeals from the district court’s order granting Joseluis Saenz’s
Fed. R Crim. P. 41(e) motion requesting the return of Mr. Saenz’s eagle feathers
and other related religious items. We have jurisdiction pursuant to 28 U.S.C. §
1291 and we affirm.
Background
Mr. Saenz, the plaintiff-appellee, is descended from the Chiricahua tribe of
Apache Indians. Although originally recognized as a tribe by the United States
government and restricted to a reservation, the Chiricahua reservation was
dissolved in 1886 after the outbreak of warfare between the Apache and the U.S.
Aplee. App. at 66-69. After many leaders of the Apache surrendered to the U.S.,
many Chiricahua, including Mr. Saenz’s ancestors, refused to surrender and fled
to Mexico. Mr. Saenz’s family returned to the U.S. in the 1930s. Aplee. Br. at 5.
The Chiricahua Indians are not currently a federally-recognized Indian tribe.
Mr. Saenz follows the beliefs and traditions of the Chiricahua Apache
religion and “has traveled throughout North America to dance and participate in
Native religious events.” Id. Mr. Saenz estimates that before the summer of
1996, he danced in approximately fifteen pow-wows per year. Aplt. App. at 74
(testimony of Mr. Saenz). Eagle feathers are an integral part of his religious
-2- practices. Id. at 61, 75-77. In 1996, while New Mexico state officials were
executing a search warrant at Mr. Saenz’s home, the officers noticed items with
eagle feathers hanging on the walls. 1 Mr. Saenz had obtained these feathers as
gifts. See e.g. , id. at 77, 79, 81-82. After contacting the United States Fish and
Wildlife Service (“FWS”) and determining that Mr. Saenz did not have a permit
for the feathers, as required by regulations issued under the Bald and Golden
Eagle Protection Act (“BGEPA”), 16 U.S.C. § 668, the officers seized the items
with eagle feathers and sent them to the FWS office in Albuquerque. After
attempting to get his feathers back through administrative proceedings, Mr. Saenz
filed a motion in federal district court under Fed. R. Crim. P. 41(e) for the return
of property seized by a search warrant. In his motion, Mr. Saenz argued that he
had a right to possess the eagle feathers under the BGEPA and the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4, as well as
under the Free Exercise and Equal Protection Clauses.
The BGEPA prohibits the taking or possession of any bald or golden
1 Mr. Saenz testified that all the eagle feathers that were seized were golden eagle feathers. Aplt. App. at 63-64. The items seized from Mr. Saenz were: three eagle feathers, one staff with an eagle foot and seven eagle feathers, one eagle feather with a beaded shaft, one shield with horsehair and four eagle feathers, one fan with twelve eagle feathers, six eagle feathers tied together with rawhide, one small dream catcher with four generic bird “fluffies,” one quiver and four arrows with one eagle feather and twelve raptor feathers, one bustle with ninety-four eagle feathers and ten “fluffies,” and a framed print with one eagle feather. Id. at 201-02.
-3- eagles or parts of bald or golden eagles except as permitted by the Secretary of
the Interior (“the Secretary”). 16 U.S.C. § 668. The BGEPA authorizes the
Secretary to permit the taking, possession, and transportation of eagles and eagle
parts in certain circumstances (e.g. scientific and exhibition purposes), including
“for the religious purposes of Indian tribes.” § 668a. The Secretary is authorized
to promulgate regulations for when such permits shall issue, as long as the
Secretary has determined that the permits are “compatible with the preservation
of the bald eagle or the golden eagle . . . .” Id. The statute does not define the
terms “religious purposes” or “Indian tribes.”
In 1963, the Secretary first issued regulations establishing a permit
program under the “Indian tribes” exception. As originally issued, the
regulations provided that permits could be issued “to those individual Indians
who are authentic, bona fide practitioners of such religion.” See 50 C.F.R. §
11.5 (1964). In 1974, the Secretary revised the regulations, requiring that
applicants “attach a certification from the Bureau of Indian affairs that the
applicant is an Indian.” See 50 C.F.R. § 22.22(a)(5), (6) (1975).
Not until 1981, eighteen years after the regulations were first enacted, was the
requirement that an applicant be a member of a federally-recognized Indian tribe
-4- clearly articulated. 2 In 1981, after a member of an Indian tribe that was not
federally recognized requested a permit for eagle feathers, the Deputy Solicitor of
the Interior issued a memorandum which stated that only federally-recognized
Indian tribes constituted “Indian tribes” under the BGEPA. Id. at 3-4; Aplt. App.
at 189. It was only in 1999 that the regulatory language was changed to clearly
reflect the requirement that an applicant must be a member of a federally-
recognized Indian tribe. See 50 C.F.R. § 22.22 (1999).
In 1996, the year the FWS seized Mr. Saenz’s eagle feathers, the
regulations stated that an applicant under the “Indian tribes” exception must
provide the FWS: (1) the species and number of eagles or feathers proposed to be
taken or acquired by gift or inheritance; (2) the state and local area where the
taking is proposed to be done, or from whom acquired; (3) the name of the tribe
2 At oral argument and in its reply brief, the government stated that the requirement that an applicant be a member of a federally-recognized Indian tribe has been in place since 1974. See Aplt. R. Br. at 17. The government asserts that since 1974 the BIA has only issued certificates to those applicants who are members of federally-recognized Indian tribes. However, the government’s initial brief implies that the “federally-recognized” requirement was only articulated in 1981, see Aplt. Br. at 3, and the only evidence the government submits on this topic, a 1981 opinion letter from the Office of the Solicitor, see Aplt. App. at 189, supports this latter interpretation. Therefore, we will assume for the purposes of this opinion, that the “federally-recognized” requirement was put in place in 1981, eighteen years after the Secretary first issued regulations under the “Indian tribes” exception to the BGEPA. We also note that, even if the “federally- recognized” requirement had been implemented in 1974, the permit system had already operated for eleven years without such a requirement.
-5- with which the applicant is associated; (4) the name of the tribal religious
ceremony(ies) for which the feathers are required; (5) a certification from the
BIA that the applicant is an Indian; and (6) a certification from a duly authorized
official of the religious group that the applicant is authorized to participate in
such ceremonies. See 50 C.F.R. § 22.22 (1996). It is uncontested that in 1996
the BIA would only issue the required certification to members of federally-
recognized Indian tribes.
In 1999, the regulations were amended to clearly reflect the requirement
that the applicant be a member of a federally-recognized Indian tribe. In
addition, the requirement that an applicant submit certification from a duly
authorized official of the religious group that the applicant is authorized to
participate in the religious ceremonies was dropped. 3 See 50 C.F.R. § 22.22
(1999). The current regulations state that in addition to the first four
requirements listed in the 1996 regulations, the applicant must attach “a
certification of enrollment in an Indian tribe that is federally recognized under
the Federally Recognized Tribal List Act of 1994 (“List Act”), 25 U.S.C. 479a-1,
108 Stat. 4791 (1994). See 50 C.F.R. § 22.22 (2001). The only requirement that
3 The FWS regional director for the southwest region testified that in New Mexico, a permit applicant may voluntarily send in a “Certificate of Participation” from a tribal elder which states that the applicant is qualified to participate in the religious ceremony, but that such a certificate is not required. Aplt. App. at 108-09 (testimony of Nancy Kaufman).
-6- the government asserts Mr. Saenz cannot meet is the requirement that the
applicant must be a member of a federally-recognized Indian tribe. Neither the
government nor Mr. Saenz distinguishes the 1996 version from the current
version of the regulations, nor will we. We will assume, for the purposes of this
opinion, that in order for Mr. Saenz to have obtained a permit during the relevant
time period, he must have been a member of an Indian tribe that is federally
recognized under the List Act.
In evaluating requests, the FWS considers: (1) “[t]he direct or indirect
effect which issuing such permit would be likely to have upon the wild
populations of bald or golden eagles”; and (2) “[w]hether the applicant is an
Indian who is authorized to participate in bona fide tribal religious ceremonies.”
Id. 4 Applications are processed at FWS’s regional migratory bird permit offices,
and, when approved, are forwarded to the National Eagle Repository in
Commerce City, Colorado. The Repository receives eagles and eagle parts and
distributes them to persons with valid permits on a first-come, first-serve basis,
although some exceptions are made for death ceremonies requiring eagle parts
immediately. FWS distributes eagle parts within days of receiving them, but the
demand exceeds the supply. On average, successful permit applicants wait three
4 These evaluation criteria were in place throughout the relevant time period.
-7- years for a whole eagle carcass and six to nine months to receive loose feathers.
Aplt. Br. at 6; Aplt. App. at 112 (testimony of FWS regional director Nancy
Kaufman).
The other statute at issue in this case, RFRA, provides:
Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person– (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. 2000bb-1(b). Under RFRA, the plaintiff must first prove that the
government’s action has substantially burdened a sincerely-held religious belief.
United States v. Meyers , 95 F.3d 1475, 1482 (10th Cir. 1996). If the plaintiff
meets that standard, the burden shifts to the government to prove that recognition
of an exception from the statute would impede the government’s compelling
interests and that the statute furthers those interests by the “least restrictive
means.” Id.
In March 2000, the district court issued an order granting Mr. Saenz’s Rule
41(e) motion. Aplt. App. at 194. The district court based its decision solely on
the BGEPA and RFRA and did not reach the constitutional issues. Id. at 194-95.
As for the “Indian tribes” exception under the BGEPA, the district court found
that “[w]hile the exception can be read, as argued in this case, as Congress
protecting the sovereign-to-sovereign relationship due those Indian tribes the
-8- United States has recognized as politically independent, it can also be viewed as
Congress (a) recognizing the importance of the eagle to Indian religious practices
generally and (b) taking steps not to inhibit the individual free exercise of
religion where the eagle is essential to religious expression and total restriction is
unnecessary.” Id. at 204. Based on this latter view, the district court held that
“[t]he government’s refusal to find Saenz to be an Indian practicing an Indian
religion ignores plain facts, belittles sincere religious beliefs and unreasonably
restricts the access to eagle feathers intended by the exception to the BGEPA.”
Id. at 208.
As for the permit system itself, the district court found that:
In the end, it appears the present permit system is designed not to enhance the government’s position with federally-recognized tribes, to serve tribes’ governmental purposes, to implement the statutory exception in the fairest manner possible, or to place the least constraint on the free exercise of religion; the present permit system appears designed to minimize the work Congress has handed the agency. Administrative expediency, however, does not constitute a compelling governmental interest that justifies either intrusion into religious beliefs or regulations which unreasonably restrict express statutory provisions. None of what the government presents in this case justifies denying an Indian practitioner of an Indian tribal religion access to eagle feathers.
Id. at 213.
Under the district court’s RFRA analysis, the court found that the
government had a single compelling interest, the preservation of bald and golden
eagles. Id. at 216. The court held that this compelling interest was not being
-9- furthered by the least restrictive means, stating that:
[i]n many respects, what the government proposes as justification for its eagle permit regulations does not address the interests of conservation at all. In all respects, the government’s approach makes no attempt to accommodate the right of an individual to the free exercise of religion or to recognize the fundamental nature of the eagle to all Native Americans who practice a traditional Indian religion. At best, the eagle permit scheme is not “the least restrictive means” to the necessary end. At worse, it may not be a means to any legitimate end. It fails to take into account mandatory considerations. It constrains the free exercise of religion without cause and it violates [RFRA].
Id. at 217 (emphasis in original).
The government raises two issues. First, the government argues that the
district court failed to give deference to the Secretary’s reasonable interpretation
of the BGEPA’s “Indian tribes” exception as required by Chevron, U.S.A., Inc. v.
Nat’l Resources Defense Council, Inc. , 467 U.S. 837 (1984). Aplt. Br. at 27.
Second, the government asserts that restricting eagle permits to members of
federally-recognized Indian tribes is the least restrictive means of furthering the
government’s compelling interests. Id. at 30. The government does not contest
that Mr. Saenz is a Chiricahua Indian, a sincere practitioner of the Chiricahua
Apache religion, or that the BGEPA substantially burdens his religious beliefs.
Id. at 8, 15, 31 n.8. The government’s argument is simply that restricting the
“Indian tribes” exception to members of federally-recognized tribes is the least
restrictive means of furthering the government’s compelling interests in eagle
conservation and fulfilling its treaty obligations to Indian tribes under RFRA.
- 10 - Because we hold that the current regulations violate RFRA, we do not reach the
Chevron analysis.
Discussion
We review the grant of a Rule 41(e) motion for an abuse of discretion.
United States v. Grover , 119 F.3d 850, 851 (10th Cir. 1997); United States v.
Deninno , 103 F.3d 82, 84 (10th Cir. 1996). Under this standard, we do not defer
to the district court’s legal conclusions. See Koon v. United States , 518 U.S. 81,
100 (1996) (“A district court by definition abuses its discretion when it makes an
error of law. . . . The abuse-of-discretion standard includes review to determine
that the discretion was not guided by erroneous legal conclusions.”). The
government states that it “solely challenges the district court’s legal conclusions .
. . .” Aplt. Br. at 13.
I. Standing
At the outset, the government argues that Mr. Saenz does not have standing
to bring an as-applied challenge to the permit process itself as he failed to
actually apply for a permit. Aplt. Br. at 16 (citing United States v. Hugs , 109
F.3d 1375, 1378 (9th Cir. 1997)). Mr. Saenz does not contest that he did not
apply for a permit. However, Mr. Saenz argues that because it would have been
futile for him to apply for a permit, he nonetheless has standing to bring an as-
- 11 - applied challenge. See Prayze FM v. FCC , 214 F.3d 245, 251 (2d Cir. 2000)
(“This threshold requirement for standing may be excused only where a plaintiff
makes a substantial showing that application for the benefit . . . would have been
futile.”) (internal quotations and citation omitted); Ellison v. Connor , 153 F.3d
247, 255 (5th Cir. 1998) (same); Desert Outdoor Adver., Inc. v. City of Moreno
Valley , 103 F.3d 814, 818 (9th Cir. 1996) (“[Appellants]. . . have standing to
challenge the permit requirement, even though they did not apply for permits,
because applying for a permit would have been futile.”) (citation omitted); see
also Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan
Gaming Control Bd. , 172 F.3d 397, 406 (6th Cir. 1999) (“The law recognizes . . .
that a plaintiff need not make costly futile gestures simply to establish standing,
particularly when the First Amendment is implicated.”) (citations omitted).
We agree. As the district court stated, “nothing Saenz presents to the
government can establish to the government’s satisfaction that he is genuinely
Indian. . . .[E]ven though Saenz has produced credible proof that he is Indian and
uses eagle feathers as an essential part of the exercise of an Indian religion, the
FWS will not consider his evidence.” Aplt. App. at 200. Permits are only given
to members of federally-recognized Indian tribes–there are no discretionary
exceptions. Because Mr. Saenz is not a member of a federally-recognized tribe,
his application would have been futile. Therefore, we hold that Mr. Saenz has
- 12 - standing to bring an as-applied challenge.
II. RFRA
Under RFRA, 5 Mr. Saenz “must establish, by a preponderance of the
evidence, three threshold requirements to state a prima facie free exercise claim.”
Meyers , 95 F.3d at 1482. Mr. Saenz must show that the government has (1)
substantially burdened (2) a sincerely-held (3) religious belief. Kikumura , 242
F.3d at 960; Meyers , 95 F.3d at 1482. In this case, the government concedes that
Mr. Saenz has established his prima facie case. See Aplt. Br. at 31 n.8 (“The
United States does not contest that Mr. Saenz sincerely seeks to possess eagle
feathers for religious purposes or that the seizure of his eagle feathers
substantially burdens his exercise of religion.”). Therefore, the burden shifts to
the government to “demonstrate that the challenged regulation furthers a
compelling state interest in the least restrictive manner.” Meyers , 95 F.3d at 1482
(citation omitted). It is important to note that “under RFRA, a court does not
consider the . . . regulation in its general application, but rather considers
5 Although the Supreme Court found RFRA to be unconstitutional as applied to the states, City of Boerne v. Flores, 521 U.S. 507, 536 (1997), we have upheld its constitutionality when applied to the federal government. Kikumura v. Hurley, 242 F.3d 950, 958-59 (10th Cir. 2001).
- 13 - whether there is a compelling government reason, advanced in the least
restrictive means, to apply the . . . regulation to the individual claimant.”
Kikumura , 242 F.3d at 962 (emphasis added).
A. Compelling Interests
In this case, the government asserts two compelling interests on appeal:
eagle conservation and the fulfillment of trust and treaty obligations to the
federally-recognized Indian tribes. 6 Aplt. Br. at 31. The district court held that
the government only had a single compelling interest in the context of the
BGEPA–the conservation of golden and bald eagles. Although we agree that the
government has failed to prove its compelling interest in trust and treaty
obligations, we disagree with the district court to the extent that we find the
record insufficient to determine whether the government still has a compelling
6 Mr. Saenz argues that the government did not assert its alleged compelling interest in the fulfillment of its trust and treaty obligations to the federally-recognized Indian tribes in the district court and, therefore, has waived this argument on appeal. Aplee. Br. at 30. We disagree. Although the government may have phrased its alleged compelling interest in fulfilling treaty obligations to the federally-recognized tribes differently below, the substance of the argument is there and there is no waiver. See Aplt. App. at 214-215 (government’s assertion that it had compelling interests “in preserving Indian religious practices by limiting the scarce supply of eagle feathers and parts to the religious practices of members of federally recognized tribes,” “preserving and supporting the ‘unique legal status’ of Indian tribes,” and in “[e]nsuring that members of federally recognized Indian tribes continue to have access to eagle feathers”) (district court opinion, internal quotations omitted, alteration in original).
- 14 - interest in eagle conservation.
1. Asserted Interest in Trust and Treaty Obligations
In its brief, the government simply asserts that it has a compelling interest
in fulfilling trust and treaty obligations to the federally-recognized Indian tribes.
The government cites to three Supreme Court cases, Bd. of County Com’rs of
Creek County v. Seber , 318 U.S. 705 (1943); Worcester v. Georgia , 31 U.S. 515
(1832); Cherokee Nation v. Georgia , 30 U.S. 1 (1831), all of which support the
proposition that the federal government has a general duty to protect the
federally-recognized tribes as “domestic dependent nations,” Cherokee Nation ,
30 U.S. at 17, but do not delineate that duty in any detail. See , e.g. , Seber , 318
U.S. at 715 (“In the exercise of the war and treaty powers, the United States
overcame the Indians and took possession of their lands, sometimes by force,
leaving them an uneducated, helpless and dependent people needing protection
against the selfishness of others and their own improvidence. Of necessity the
United States assumed the duty of furnishing that protection and with it the
authority to do all that was required to perform that obligation and to prepare the
Indians to take their place as independent, qualified members of the modern body
politic.”).
The government primarily relies on Gibson v. Babbitt , 223 F.3d 1256,
1258 (11th Cir. 2000), which held that the government had a compelling interest
- 15 - in “fulfilling its treaty obligations with federally recognized Indian tribes” in the
context of the BGEPA. The Eleventh Circuit based this result on the district
court’s analysis that the BGEPA was meant to be a substitute for tribes’
abrogated hunting treaty rights. Id. (citing Gibson v. Babbitt , 72 F. Supp. 2d
1356, 1360-61 (S.D. Fla. 1999)). The district court had reasoned that, “by
providing bald and golden eagle parts to federally recognized Indian tribes, the
United States–albeit in a substituted fashion–is fulfilling a pre-existing treaty
obligation to the tribes.” 72 F. Supp. 2d at 1360. The district court cited no
authority for this conclusion. See 72 F. Supp. 2d at 1360-61. We disagree with
this analysis .
We do not think that the purpose of the BGEPA’s “Indian tribes” exception
is to serve as a statutory substitute for certain abrogated treaty hunting rights. In
United States v. Dion , 476 U.S. 734, 743-45 (1986), the Court held that the
BGEPA abrogated Native American treaty rights to hunt eagles. Just because the
BGEPA abrogated certain rights does not mean that the “Indian tribes” exception
to the BGEPA was meant to replace those rights. The plain language of the
exception supports this interpretation. The exception is for “the religious
purposes of Indian tribes,” not for “the hunting purposes of Indian tribes.”
It is clear in Dion that the Court was only addressing the issue in front of
it–whether the BGEPA had abrogated certain treaty hunting rights, not whether a
- 16 - member of a federally-recognized tribe should have priority over other Native
Americans in obtaining eagle feathers for religious purposes. The Court stated:
Congress expressly chose to set in place a regime in which the Secretary of the Interior had control over Indian hunting, rather than one in which Indian on-reservation hunting was unrestricted. Congress thus considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statute, and provided a specific, narrow exception that delineated the extent to which Indians would be permitted to hunt the bald and golden eagle.
Id. at 743-44. We do not think that Dion can be read to give a religious
preference to one group of Native Americans over another, especially as the
Court specifically stated that it was not considering any religious freedom issues.
Id. at 736 n.3. In addition, as the analysis of the legislative history behind the
BGEPA makes clear, Congress was concerned only with the hardship a complete
ban on possessing eagle parts would impose on Native American religious
ceremonies, not on treaty hunting rights. See Dion , 476 U.S. at 740-44
(discussing legislative history).
Other than citing to the above cases in its brief, the government introduces
no record evidence to prove what the federal government’s “trust and treaty”
obligations actually are, or whether they encompass providing federally-
recognized Indian tribes with eagle parts for religious practices. As the district
court points out, the government’s trust and treaty obligations usually encompass
“a duty to tribal government and a need to acknowledge tribal sovereignty . . . .”
- 17 - Aplt. App. at 215. However, in this case, “[t]he issue to be decided is not the
legitimacy of sovereign-to-sovereign relationships. This is an end only
tangentially tied to the BGEPA in the first place. The ultimate issue in this case
centers on the rights of an individual, not as against tribal governments, but as
against the United States.” Id. Because we are not persuaded by the Eleventh
Circuit’s reasoning in Gibson and because the government offers us no evidence
to the contrary, we hold that the government has failed to prove that it has a
compelling interest in fulfilling trust and treaty obligations in this context.
2. Alleged Interest in Eagle Conservation
The district court found the government’s compelling interest in eagle
conservation undisputed. Aplt. App. at 214. Certainly, case law seems to
support this proposition. See , e.g. , Gibson , 72 F. Supp. 2d at 1360 (finding a
compelling interest in eagle preservation), aff’d , 223 F.3d 1256 (11th Cir. 2000)
(failing to reach the issue but affirming on other grounds); United States v. Hugs ,
109 F.3d 1375, 1378 (9th Cir. 1997); United States v. Lundquist , 932 F. Supp.
1237, 1241 (D. Ore. 1996); United States v. Thirty Eight (38) Golden Eagles or
Eagle Parts , 649 F. Supp. 269, 276-77 (D. Nev. 1986), aff’d , 829 F.2d 41 (9th
Cir. 1987); see also Rupert v. Director, United States Fish & Wildlife Serv. , 957
F.2d 32, 35 (1st Cir. 1992) (finding that the government has a “legitimate
governmental interest[]” in “protecting a dwindling and precious eagle
- 18 - population”). However, the above cited cases, with the possible exception of
Lundquist , 7 assumed the compelling governmental interest in eagle conservation
existed without evidentiary analysis. 8 The record in this case is insufficient to
allow us to conduct a thorough inquiry. However, because this issue is
unnecessary to our disposition of the case, the inadequacy of the record is not
dispositive. Even if the government has a compelling interest in eagle
conservation, the government is not furthering that interest by the “least
restrictive means.” 42 U.S.C. § 2000bb-1(b)(2).
B. Least Restrictive Means
Assuming that the government has a compelling interest in eagle
conservation, under RFRA the government must prove that denying Mr. Saenz
7 The court in Lundquist based its finding that the government had a compelling governmental interest in eagle preservation on a 1995 case, United States v. Jim, 888 F. Supp. 1058, 1064 (D. Ore. 1995). According to the Jim court, the fact “[t]hat the bald eagle is making a rebound does not mean that the government does not maintain a compelling interest in its protection. There is no proposal to delist the bald eagle anywhere in the country . . . .” Id. (citations omitted). As discussed in note 8, there is now such a proposal. 8 We note two things. First, the golden eagle is not endangered. However, because young golden eagles are very difficult to distinguish from young bald eagles, and the two species are frequently confused, Congress included the golden eagle within the protection of the BGEPA. See Aplt. Br. at 2 (citing Jim, 888 F. Supp. at 1063). Second, in 1999, the FWS proposed a rule to remove the bald eagle from the List of Endangered and Threatened Wildlife in the lower forty- eight states. Proposed Rule to Remove the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife , 64 Fed. Reg. 36454 (July 6, 1999) (stating that “available data indicate that this species has recovered”).
- 19 - his eagle feathers “is the least restrictive means of furthering that compelling
governmental interest.” Id. The government argues that restricting permits to
members of federally-recognized tribes meets this test for two reasons: (1)
“[a]llowing all persons of Indian heritage to possess eagle feathers, without
regard to membership in a recognized tribe, would undermine the United States’
obligations to the recognized tribes,” Aplt. Br. at 33; and (2) “significantly
increasing the number of persons authorized by law to possess eagle parts and
feathers would harm the United States’ interest in protecting eagle populations,
as it would likely lead to increased numbers of illegal eagle kills and increased
reliance on a black market for eagle parts.” Id. at 35. Finally, the government
contends that deleting the federal recognition requirement from the permit
process would lead to equal protection and administrative concerns. We are not
persuaded by any of these arguments.
1. Obligation to Federally-Recognized Tribes
As we have already stated, the government has failed to define the United
States’ obligations to the recognized tribes in this context. As the district court
succinctly summarized, “the government has no compelling interest in preferring
the practices of any one Indian tribe over another on the basis of unrelated
distinctions in political status.” Aplt. App. at 218. Therefore, this argument
cannot serve as a justification for the current permit system.
- 20 - Furthermore, we note that even if the government had proved that it had an
obligation to favor federally-recognized tribes in this context, the government
failed to prove at the motion hearing that this interest would be undermined if
Mr. Saenz prevails. The government’s basic argument is that opening the permit
process to all Native Americans, regardless of the political status of their
respective tribes, would swamp the permit process and create much longer delays
than already exist for eagle parts and feathers. Aplt. Br. at 33-34. However, the
government offered very little proof on this issue, and the district court found
that the government was not arguing from “a factual basis.” Aplt. App. at 217.
Because the government only appeals the district court’s legal conclusions, see
Aplt. Br. at 13, the district court’s factual findings stand unchallenged.
Other than speculative opinion testimony by an FWS regional director and
a member of the Mescalero Apache tribe that the deletion of the federally-
recognized requirement would cause the wait for eagle parts and feathers to
substantially increase, Aplt. App. at 112-13; Aplee. App. at 37-38, the
government offered two other items of evidence: (1) an estimate of the number of
members of federally-recognized tribes versus the number of Americans who
identify themselves as having Indian ancestry, 9 see Aplt. App. at 134 (testimony
9 According to testimony at the motion hearing, there are approximately 1.7 million members of federally-recognized Indian tribes. There are approximately 8.7 million Americans who identify themselves as having Native American
- 21 - of Iris Drew, Bureau of Indian Affairs), and (2) a report showing the number of
eagle orders filled for a one-year period from 1997 to 1998. Id. at 187. The
government seems to believe that showing that there are substantially more
Americans who identify themselves as having Native American ancestry than
there are members of federally-recognized Indian tribes proves that the permit
process would be overwhelmed with applications in the absence of the federal
recognition requirement. It does not. As the district court stated, this is simply
“conjecture.” Aplt. App. at 209.
Not all of the millions of Americans who identify themselves as having
Native American ancestry are sincere practitioners of Native American religions
that require eagle parts and feathers. We note that the permit process operated
for eighteen years without the requirement that the applicant be a member of a
federally-recognized tribe. See supra , note 2. If that method of operation led to
such great demand that the permit system was overwhelmed, the government
should have been able to offer evidence to that effect from that period. No such
evidence is included in the record. Finally, the report showing the number of
eagle orders filled in a one-year period from 1997 to 1998 sheds no light on how
circumstances would change if the requirement that an applicant be a member of
ancestry. Aplt. Br. at 34 (citing 60 Fed. Reg. 44,674, 44,679 (1995) (census data)).
- 22 - a federally-recognized tribe were eliminated. 10
2. Illegal Eagle Kills and Black Market Transactions
Turning to the government’s argument that the current permit system is
necessary to prevent an increase in illegal killings of eagles and black market
transactions, the government has failed to offer any proof on either point, nor
have they shown that a black market in eagle parts even exists. At base, the
government’s argument is that the permit system affects the overall demand for
eagle feathers. Common sense points to the flaws in this argument. At any one
point in time, there are a fixed number of Native Americans who are sincere
practitioners of Native American religions and who consider eagle feathers to be
an integral part of their religious practices. It is these Native Americans–some of
whom are members of federally-recognized tribes and some of whom are not–that
create the demand for eagle feathers for religious purposes. The way the permit
system is structured does not affect that demand, which exists regardless of
whether the Secretary’s permit system encompasses all Native Americans or only
a specific subset ( i.e. , members of federally-recognized tribes). Allowing Native
10 Although the FWS regional director testified that the FWS has an average of 4,500 permit applications pending at any one time, Aplt. App. at 112, the report seems to indicate a more rapid rate of order fulfillment. During the one- year period covered by the report, the FWS received 1,070 new requests for eagles and eagle parts. The report indicates that during that same time period, the FWS filled 1,190 orders for eagles and eagle parts. Aplt. App. at 187.
- 23 - Americans, regardless of their tribal status, who are sincere practitioners of a
Native American religion, to obtain a permit would result in a redistribution of
eagle permits–not in increased demand for them. Given that the demand for
eagles and eagle parts is constant regardless of the permit system, it does not
follow that the number of illegal kills and transactions on the alleged black
market would increase if the system were altered.
In fact, one could just as easily argue that opening up the permit process to
all Native Americans, instead of just those who are members of federally-
recognized tribes, would decrease the number of illegal eagle kills and black
market transactions. Currently, a Native American who is not a member of a
federally-recognized tribe has no method within his or her control of obtaining
eagles for religious ceremonies other than through the black market. By
changing the permit system, these same Native Americans would be eligible to
obtain eagle parts in a legal way.
3. Equal Protection and Administrative Concerns
The government asserts two final arguments against the conclusion that
restricting the permit process to members of federally-recognized Indian tribes
does not meet the “least restrictive means” test under RFRA. The government
argues that opening up the permit process to all Native Americans who are
sincere practitioners of a Native American religion will not only raise equal
- 24 - protection problems, but will make the permit process administratively
unfeasible. See Aplt. Br. at 24-26, 34 n.10. We disagree.
The government asserts that opening up the permit process to all Native
Americans, regardless of membership in a federally-recognized tribe, would
result in a permit system that relied on an impermissible racial classification.
The government bases this argument on Morton v. Mancari , 417 U.S. 535 (1974),
in which the Court held that a BIA employment preference for applicants that
were “one-fourth or more degree Indian blood and . . . a member of a Federally-
recognized tribe” was “political rather than racial in nature.” Id. at 553 n.24
(internal quotations and citation omitted). As the Court explained, “[t]he
[employment] preference, as applied, is granted to Indians not as a discrete racial
group, but, rather, as members of quasi-sovereign tribal entities whose lives and
activities are governed by the BIA in a unique fashion.” Id. at 554. Therefore,
the government argues that, in this case, removing the requirement that an
applicant be a member of a federally-recognized tribe would lead to an
impermissible racial classification. However, we believe the context to be
critical here. The Morton Court was solely concerned with issues of tribal
sovereignty, stating that the preference was “rationally designed to further Indian
self-government . . . .” Id. at 555. In this case, we are dealing with an
individual’s free exercise rights. Accordingly, Morton does not dictate our
- 25 - result.
Even the government admits that “there may be occasions when it is
defensible for the government to rely on ancestry in determining a person’s status
as an Indian . . . .” Aplt. Br. at 25. We believe that this is one of those
occasions. As the district court in Gibson stated, “Congress is very aware of its
trust obligation to Native Americans and, in fulfillment of this obligation, often
confers benefits on Indians irrespective of their membership in a federally
recognized tribe.” 72 F. Supp. 2d at 1358.
The definition of “Indian” contained within the Indian Reorganization Act
of 1934 (“IRA”), 25 U.S.C. § 476 et seq., for example, “shall . . . include all
other persons of one-half or more Indian blood.” 25 U.S.C. § 479. Native
Americans meeting this definition are eligible for tuition loans for vocational and
trade schools, § 471, and receive certain federal service employment preferences.
§ 472. Scholarship and grant programs for Native Americans under the Indian
Health Care Improvement Act (“IHCIA”), 25 U.S.C. § 1603 et seq., broadly
define the term “Indian” to include “any individual who . . . irrespective of
whether he or she lives on or near a reservation, is a member of a tribe, band, or
other organized group of Indians, including those tribes, bands, or groups
terminated since 1940 [ i.e. , no longer federally-recognized] and those recognized
now or in the future by the State in which they reside, or who is a descendent, in
- 26 - the first or second degree, of any such member, . . . .” § 1603(c). If Congress
may include Native Americans who are not members of federally-recognized
tribes within the scope of educational and federal employment programs, surely
Congress may do the same when it comes to protecting Native Americans’ ability
to practice their traditional religions.
Although the government admits that restricting the eagle permit program
to members of federally-recognized tribes can result in a “collision of the heart
and the mind,” Aplt. Br. at 15 (quotations and citation omitted ), underlying the
government’s entire argument is the premise that this restriction is justifiable
because it provides an independent, neutral criteria in determining which Native
Americans are allowed to possess eagle feathers. We take issue with this
contention. For approximately sixty years (1871-1928), the federal government
conducted an official policy of “assimilation” towards Native Americans, which
resulted in a “systematic attempt to eradicate Indian heritage and tribalism.”
Felix S. Cohen, Handbook of Federal Indian Law 127-143 (1982 ed.). The 1950s
saw an official policy of “termination,” in which the federal government sought
to end the “trust relationship” between the federal government and Indian tribes,
and Congress voted to “terminate” numerous tribes. Id. at 152-75. An
“important practical effect of termination was to remove the sovereignty of
terminated tribes. Although the termination acts did not expressly extinguish the
- 27 - governmental authority of such tribes, most were not able to exercise their
governmental powers after the loss of their land base.” Id. at 175.
Overall, “[f]ederal policy toward the recognition of Indian tribes has been
by no means consistent with ‘real’ ethnological principles: Congress has
frequently consolidated previously distinct groups into a single tribe for
recognition purposes, or has divided an individual tribe into two or more groups,
recognizing each in turn as a ‘different’ Indian ‘nation.’ Congress has also
occasionally ‘terminated’ tribes’ federal recognition, in some cases only to
‘restore’ it thereafter . . . .” Christopher A. Ford, “Executive Prerogatives in
Federal Indian Jurisprudence: The Constitutional Law of Tribal Recognition,” 73
Denv. U. L. Rev. 141, 156 (1995) (citations omitted), quoted in Aplt. App. at 207
(district court opinion). Mr. Saenz’s tribe, the Chiricahua Indians, was once a
federally-recognized tribe with its own reservation. That status was revoked,
however, when the federal government dissolved the Chiricahua reservation in
1886 after the outbreak of warfare between the Apache and the United States.
Aplee. App. at 66-69 (Executive Orders creating and dissolving Chiricahua
reservation). It has largely been the federal government’s policies toward the
Indian tribes over the years that have determined which tribes have survived and
which tribes have not. On the one hand, historical government policy toward the
Chiricahua tribe may have made it impossible for that tribe to obtain federal
- 28 - recognition today, while on the other hand, the government now wants to use that
same lack of recognition to infringe on Mr. Saenz’s religious freedom. We
refuse to base Mr. Saenz’s free exercise rights on such tenuous ground.
Congress has explicitly declared a policy “to protect and preserve for
American Indians their inherent right of freedom to believe, express, and exercise
the traditional religions of the American Indian, . . . including but not limited to
access to sites, use and possession of sacred objects, and the freedom to worship
through ceremonials and traditional rites.” The Indian Religious Freedom Act,
42 U.S.C. § 1996. Against this background, we do not believe that Mr. Saenz’s
free exercise rights should be conditioned on his “political” status–whether or not
he is a member of a federally-recognized tribe.
Finally, the government alleges that allowing Mr. Saenz and others like
him to obtain eagle permits will result in a permit system that is administratively
unfeasible. As explained, the government has offered no proof that the number
of permit applicants would substantially increase in the absence of the challenged
restriction, and we cannot ignore the fact that the government operated the permit
system for eighteen years without requiring an applicant to be a member of a
federally-recognized tribe. See supra , note 2. The government operates
programs for Native Americans under the IRA and IHCIA that do not require
participants to be members of federally-recognized tribes. Presumably, the
- 29 - government has found a way to allocate the limited resources in those programs
(scholarship funds and grants) among the programs’ applicants. The government
will have to do the same here. As the district court stated, “[t]he federal
government may find it difficult, time-consuming or bothersome to identify
authentic Indian tribes ethnologically rather than simply politically, but the
present test will never provide for the individual free exercise of religion
precisely because of cases like the present one and because whether or not a
particular tribe has been formally recognized for political purposes bears no
relationship whatsoever to whether or not an individual practitioner is of Indian
heritage by birth, sincerely holds and practices traditional Indian religious
beliefs, is dependent on eagle feathers for the expression of those beliefs, and is
substantially burdened when prohibited from possessing eagle parts.” Aplt. App.
at 218.
AFFIRMED.
- 30 -