Full Title Name:  Detailed Discussion of the Bald and Golden Eagle Protection Act

In 1940, Congress recognized the need to protect the Nation’s symbol of freedom and liberty. The Bald and Golden Eagle Protection Act was originally borne of a need to protect only the bald eagle. Faced with population pressures due to direct hunting and habitat encroachment, Congress enacted protection for this majestic bird of prey. The Eagle Act, as originally enacted, prohibited any form of hunting, possession, or sale of the bald eagle. The Act protected both live and dead eagles covered by the act, as well as eagle parts, nests, and eggs. Later amendments increased the penalties proscribed by the statute, which include civil and criminal sanctions.

Perhaps the most volatile issues spawned by the BGEPA include those relating to the 1962 amendment allowing Native Americans access to eagles for use in religious ceremonies. This has created litigation by Native Americans and non-Native Americans alike seeking to exercise their religious freedoms. The Act still remains a strictly enforced statute, despite recent proposals to remove the Bald Eagle from the Endangered Species List. In fact, the eagle is often touted as a wildlife success story, gaining protection under several other federal statutes in addition to the BGEPA. The question for the future is whether the eagle’s remarkable recovery can continue despite legal challenges and continuing habitat pressures.

I. Introduction and History

The bald eagle (image) is currently protected by three acts of Congress: the Bald and Golden Eagle Protection Act ( 16 U.S.C. § 668 ), the Migratory Bird Treaty Act of 1918 ( 16 U.S.C. §§ 703-711 ), and the Endangered Species Act of 1973 ( 16 U.S.C. §§ 1531-1543 ). The golden eagle is likewise covered by the BGEPA and the MBTA, but does not retain coverage under the ESA as it is not listed as an endangered or threatened species. (See, Section 6, infra.) The BGEPA is a federal law and no private right of action exists under the statute. (See, Protect our Eagles v. City of Lawrence , 715 F.Supp. 996 (D. Kan. 1989), where concerned citizens unsuccessfully sought to enjoin the destruction of a grove of cottonwood trees used as perches by eagles under the BGEPA and other statutes). The history of the BGEPA demonstrates an act that has evolved to meet the changing needs of the species and people for whom the eagle is a central figure.

A. The Bald Eagle Becomes a Ward of the Federal Government

Congressional attention first focused on the eagle in the late 1930’s. It became well known that the bald eagle was declining at an alarming rate.

The decline of bald eagle populations was first noticed in the late 1930's. Throughout the United States and Canada bald eagle populations dwindled. In several areas breeding populations disappeared entirely. A variety of causes was suspected for the decline, including loss of habitat, illegal shooting, pesticides, electrocution from high voltage lines, and other human disturbances.

Tina S. Boradiansky, Conflicting Values: The Religious Killing of Federally Protected Wildlife , 30 Nat. Resources J. 709 (1990).

In 1940, Congress acted to prevent what seemed to be the inevitable destruction of the Nation’s symbol. The purpose behind the enactment of the 1940 version of the Bald Eagle Act, as it was then known, can be explained through the words from the Acting Secretary of Agriculture in 1939:

It is apparent to this Department from its long observations with respect to the wildlife of this country that there are those in any community in which an eagle may appear who are immediately seized with a determination to kill it for no other reason than that it is an eagle and a bird of large proportions. It is equally apparent that if the destruction of the eagle and its eggs continues as in the past this bird will wholly disappear from much the larger part of its former range and eventually will become extinct.

From an esthetic point of view there can be no question as to the desirability of protecting the eagle. Its status as the emblem of the sovereignty of the United States settles that; the bird should be a ward of the National Government . Real lovers of nature, of which there are millions in this country now, count it a red-letter day when they see an eagle, and they are united in support of legislation such as is proposed in this bill. They would regret beyond expression to see the now evident process of extinction of this bird continue and fervently hope that it can be checked for all time by the Congress of the United States.

H.R.Rep.No. 2104, 76th Cong., 3d Sess. 1 (1940); See also, United States v. White , 508 F.2d 453 (8 ^th Cir. 1974). This letter formed the basis for the House and Senate’s decision to enact protective measures specific to the bald eagle.

The preamble to the original act is also illustrative of the great importance attached to this raptor.

Whereas the Continental Congress in 1782 adopted the bald eagle as the national symbol; and

Whereas the bald eagle thus became the symbolicrepresentation of a new nation under a new government in a new world; and

Whereas by that Act of Congress and by tradition and custom during the life of this Nation, the bald eagle is no longer a mere bird of biological interest but a symbol of the American ideals of freedom; and

Whereas the bald eagle is now threatened withextinction: Therefore

Be it enacted * * *, etc.

June 8, 1940, c. 278, § 1, 54 Stat. 250.; See also, White , supra.

While the words put to paper in the Eagle Act embodied a national attitude toward the bald eagle, mortality rates still climbed. It was following World War II that a new threat emerged to the eagle population. This once majestic aquatic predator had already experienced drastic mortality due to direct hunting and habitat loss. However, it was the increasing use of the insecticide DDT (dichloro-diphenyl-trichloroethane) and other organochlorine compounds that posed a unique risk to these carnivores. As the eagles consumed fish contaminated with DDT, the organic compounds bio-accumulated in their fatty tissues. This resulted in direct mortality to the eagles as well as shell thinning in eggs.

More recently high concentrations of DDT, DDE, and diedrin, all of which cause eggshell thinning and drastically reduce reproductive success, have been found in the body tissue of eagles. After Congress banned DDT in 1972, scientists noticed a rapid and unexpected decrease in DDE levels. Because DDE is one of the most persistent contaminants in the environment, they were able to determine that the surprisingly low levels of DDE were caused by a high level of turnover (deaths of adult and subadult birds) in eagle populations. [footnotes omitted]

Boradiansky , supra, at ---. This resulted in the subsequent banning of DDT. See, Kenneth P. Pitt, Eagles and Indians: The Law and the Survival of a Species,100 5 Pub. Land. L. Rev. 100 109 (1984), citing Exec. Order No. 11,643, 37 Fed. Reg. 2,875 (1972), and citing J. Grier, Ban of DDT and Subsequent Recovery of Reproduction in Bald Eagles, 218 Science 1232 (1982).

It became apparent that more had to be done to protect the bald eagle. The bird still experienced direct mortality due to hunting. Ironically, it was the protection of a related species that served to further protect the bald eagle.

B. The Golden Eagle Obtains Protected Status

In 1962, the protection of the eagle was expanded to include the related species of the golden eagle. Again, the enacting clause explained its purpose:

Joint Resolution to provide protection for the golden eagle.

WHEREAS the population of the golden eagle has declined at such an alarming rate that it is now threatened with extinction; and

WHEREAS the golden eagle should be preserved because of its value to agriculture in the control of rodents; and

WHEREAS protection of the golden eagle will afford greater protection for the bald eagle, the national symbol of the United States of America, because the bald eagle is often killed by persons mistaking it for the golden eagle: Now, therefore, be it . . .

1962 U.S. Code Cong. & Admin. News, p. 1453. Act of October 24, 1962, Pub.L. No. 87-884, 76 Stat. 1246. See also, White at --.

The amendment was adopted in part to preserve the declining golden eagle population, but also as an additional protective measure for the bald eagle, as the two species are relatively indistinguishable in the first few years of life. However, including the golden eagle under the ambit of the statute raised a new issue. Golden eagles, like bald eagles, are revered in Indian religious culture as spiritual icons or messengers. Prior to the inclusion of the golden eagle, Indian tribes ostensibly hunted or collected golden eagles as needed for religious ceremonies. Now with both birds protected by federal law, Congress became aware of the need to provide a mechanism for Indian religious use of eagles.

C. The Indian Religious Exception

Recognizing the central role the eagle plays in Native American religious culture, Congress created a specific exemption for possession of the eagle for religious purposes of Indian tribes. Thus, the 1962 amendments provided not only for the preservation of the golden eagle, but also the preservation of a cultural practice.

Congressional House debate surrounding the 1962 amendments took particular notice of the fact that the golden eagle is ‘important in enabling many Indian tribes, particularly those in the southwest, to continue ancient customs and ceremonies that are of deep religious or emotional significance to them.’ Similarly the Department of the Interior observed that ‘the eagle, by reason of its majestic, solitary, and mysterious nature, became an especial object of worship. . . . The mythology of almost every tribe is replete with eagle beings.’ Congress concluded that with the addition of golden eagles to BEPA an exception should be created for Indian religious use.

Boradiansky , supra, at --. Not only did this amendment allow for the use of eagles for Indian religious purposes, but it also allowed individuals to obtain permits for scientific or exhibition purposes. 16 U.S.C. §668a . However, it is the former aspect of the amendment that has created the greatest controversy with the Act to date. (See, Section 4, infra, for more detail).

D. The Eagle Act Falls Short

The 1972 amendments to the BGEPA were directed at the penalty component of the Act. Faced with this increased population pressure in addition to hunting and habitat destruction, Congress enhanced the penalties under the BGEPA in 1972, and provided a subsequent violation component under the statute. As a result of these amendments, violators would now face fines up to $5,000 and imprisonment up to one year for a first conviction, and fines up to $10,000 for a subsequent conviction and imprisonment up to two years. As noted in White , Congress was "again aroused by the useless destruction and possible extinction of these great birds." Id. at --. The White court noted that after the act passed the House of Representatives, the Assistant Secretary of the Interior, Nathanial P. Reed wrote to Senator Magnuson, Chairman of the Committee on Commerce, urging the passage of the amendments.

There exist but 10-20,000 golden eagles in North America, and 20-30,000 northern bald eagles. The prompt enactment of H.R. 12186 will help to protect these majestic birds, aptly described by the Congress in 1940 as ‘a symbol of the American ideals of freedom.’

1972 U.S. Code Cong. & Admin. News, pp. 4292-4293.

Even more significant was evidence that the act was not being adequately enforced. On its face, the BGEPA is directed at deterring three types of human conduct related to eagles: (1) removal of eagles from their wild or natural habitats; (2) possession and transportation of eagles acquired without a permit; and (3) acts of transfer to others in the stream of commerce. Ostensibly, the first behavior is the most difficult to prevent and apprehend those who engage in it as it is nearly impossible to patrol the vast eagle habitat. This perhaps in itself explains the paltry enforcement of the BGEPA prior to the 1972 amendments. Thus, the 1972 amendments struck at the most apparent and pervasive threat to the eagle population – commerce. Indeed, the language of the statute catalogs the specific commercial activities prohibited under the Act: "sell, purchase, barter, offer to sell, purchase or barter, transport, export or import." 16 U.S.C. §668(a). In doing so, Congress explicitly determined that incentive of demand for eagle artifacts continued to threaten the eagle’s survival. Since the process of criminal prosecution is slowed by the overburdened caseload often facing federal prosecutors, the amendments added a civil component to the statute. By creating a civil penalty and a civil forfeiture provision, the drafters sought to remedy inadequate enforcement.

Additionally, the newly enacted enhanced penalty provisions included not only increased criminal penalties, but also additional punishment in the form of cancellation of government grazing contracts. This was directed at the widespread destruction of eagles by large-scale ranch operations.

During the 1972 congressional debate, the Department of the Interior revealed that only 32 federal convictions had been obtained under the act in the previous five years, with violators averaging a $50 fine per incident . . . Congress also added civil penalties of $5,000 per violation for the first time. The Senate also took congressional notice of the continued killing of eagles by ranchers and farmers, who sometimes destroyed large numbers by aerial shooting. As a result, Congress designed a penalty designed to strike fear into the heart of ranching country: the cancellation of grazing rights.

Boradiansky , supra, at --. Moreover, to encourage enforcement of the BGEPA, the statute now provided that one-half of any fine up to $2,500 would be paid to any person giving information that leads to a conviction under the statute. 16 U.S.C. § 668(a) ; Boradiansky , supra, at --. While there is no caselaw concerning the "incentive" requirement under the amended statute, it certainly provides a unique statutory deterrent mechanism.

Criminal prosecutions were further enhanced by a change to the statutory language. The statutory definition of "take" was also broadened by the 1972 amendments to encompass a greater range of destructive activities. The term "take" as the statute currently reads includes to:

pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb; "transport" includes also ship, convey, carry, or transport by any means whatever, and deliver or receive or cause to be delivered or received for such shipment conveyance, carriage, or transportation.

This wording specifically targets activities beyond traditional hunting and poaching. (See, Section 2, infra, for more details). (Note: the 1972 amendments added the term "poison" to the definition of "take," and changed "molest" to "otherwise willfully molest" as well. 1972 - Pub.L. 92-535.) Other changes were added in 1970’s , including the proviso that the Secretary of the Interior may permit the taking, possession, and transportation of golden eagles for the purposes of falconry with exception that only golden eagles that cause depredations on livestock and wildlife may be taken for falconry. 1972 Pub.L. 92-535. The Secretary of the Interior was also empowered by a 1978 amendment to permit the taking of golden eagle nests from sites that were deemed to be interfering with resource development or recovery operations. 16 U.S.C. § 668c ; 1978 - Pub.L. 95-616.

The 1972 amendments also centered on the lack of adequate prosecution under the act. The 1940 version of the statute required proof of willful conduct for conviction. Congress amended the statute to lessen the degree of knowledge required to convict violators, from "willfully" to "knowingly or with wanton disregard for the consequences of his act." 16 U.S.C. § 668(a) . Of particular influence to the Legislature was the paltry enforcement of violations of the Eagle Act.

Over the past 5-year period, there have been only 32 Federal convictions under the Act, with fines and court costs totaling a meager $2,235. Although violators were subject to a maximum fine of $500, it appears that each violator convicted under the Act was fined an average of only about $50 per incident. In order to prevent, or deter, the taking of eagles in the future, violators should be subjected to greater penalties than allowed in the current law, and the amount of knowledge required to be proved in order to obtain a conviction in this type of case should be reduced. The committee concludes that it is only in this way that bald and golden eagles can be given the protection to which they are entitled.

Senate Report No. 92-1159, U.S. Cong. & Admin.News, 92 ^nd Cong., 2d Sess. 1972, p. 4288; See also, Hetzel , at --. This reduction in the specific intent under the Act

The forfeiture provision of the statute was also added in 1972. This section authorizes the seizing of eagle parts obtained through enforcement of the Eagle Act as well as the instrumentalities used to obtain those eagles or their parts. 16 U.S.C. § 668b(b) . This includes guns, traps, nets and any means of transportation used in obtaining the eagles (i.e., boats, cars, and aircraft). The combination of penalties combined to create one of the strictest wildlife statutes in operation.

E. The State of the Law Today

The enforcement scheme under the Act is extensive. The penalty provisions and intent component have remained unchanged since the 1972 amendments. Additionally, under the BGEPA, any employee of the Department of the Interior authorized to enforce the provisions of the statute, may arrest individuals for violations committed in the employee’s presence without a warrant. 16 U.S.C. 668b . This provision incorporated the specific language of Section 5 of the Migratory Bird Treaty Act, as amended, which was previously incorporated only by reference. White at --. Additionally, the Department of the Interior (DOI) is authorized by statute to enter into cooperative agreements with state fish and wildlife agencies to enforce the provisions of the statute. Any court with jurisdiction to hear federal cases is authorized to issue warrants under the statute. 16 U.S.C. § 668b(a) . This network of regulatory and enforcement measures have made the BGEPA one of the most successful wildlife statutes to date.

Interestingly, it is not the enforcement of the statute nor the stringent penalties associated with it that have created the most controversy for the courts. Rather, it is the limitation of the use of eagle parts to Native Americans and the concomitant constitutional challenges that target the BGEPA. The Code of Federal Regulations now explicitly lists the requirements for permits to take eagles for scientific and exhibition purposes as well as Indian religious purposes. 50 C.F.R. § 22.21-22.22 . It is that permit process that continues to spawn much of the litigation under the BGEPA today. (See, Section 4, infra). Moreover, while the amended statute lists in its definitional section the term "whoever" as including associations, partnerships, and corporations, it does not specifically include "Indians." 16 U.S.C. § 668c . This in and of itself has created controversy as early court decisions held that Indians hunting eagles on reservations were exempted from the Act due to pre-existing treaties. (See, Section 4, infra). While the Supreme Court has resolved the issue of treaty abrogation, religious challenges remain hotbeds of litigation to the BGEPA.

The following describes the pertinent components of the BGEPA:

• No one is entitled to possess a bald or its parts obtained after 1940 or a golden eagle obtained after 1962 unless he or she possesses a valid permit. However, it is lawful to possess pre-Act birds or their parts.
• The statute prohibits illegal possession where a person does so "knowingly or with wanton disregard for the consequences"; these terms are undefined in the statute.
• Any form of commerce in eagle parts, whether obtained before or after the date of the BGEPA’s enactment, is strictly prohibited. There are no exceptions to this provision.
• The statute provides both civil and criminal penalties as well as the potential for loss of grazing contracts with the federal government.
• Anything used to take or kill an eagle is subject to forfeiture under the BGEPA. This includes not only guns, traps, and nets, but also cars, boats, and other equipment.
• Only Bureau of Indian Affairs certified tribe members may obtain Indian religious permits under the BGEPA.
• The statute does not provide for any protection of habitat, save for the protection of eagle nests. The term "take" does include molesting and disturbing eagles, which could be broadly construed to protecting immediate nesting sites. This is significant because the greatest potential threat to eagle sustainability is habitat preservation.

II. Criminal Prosecution of Eagle Violations: A Question of Intent

The BGEPA provides for criminal prosecution in addition to civil fines. The severe penalties under the statute reflect an intent by Congress to deter any form of taking. However, it is the degree of criminal intent under the statute that has resulted in the most consideration by the courts.

The statute does not define the term "knowingly" or what constitutes "wanton disregard for the consequences." While the amended statute clearly states the level of intent required for conviction, the issue of "innocent possession" still remains. The intent under the statute is subject to judicial interpretation. What is clear, however, from the definition of "take" under the statute is that a Congress intended the statute to cover a broad expanse of intentional activities that result in harm to eagles. Thus, it is the intent of an individual rather than solely his or her actions that will subject him or her to liability under the BGEPA.

A. Requisite Criminal Intent

Intent forms the basis of most criminal prosecutions. The language of the BGEPA indicates Congress intended the Eagle Act to require a mens rea. The Act states that one is subject to conviction if he or she:

Knowingly, or with wanton disregard for the consequences of his act . . .

possesses or otherwise takes an eagle or its parts. This level of intent initially raises several interesting issues. How many average Americans are aware that the following could subject them to a federal crime?

• Molly Migratory pockets an interesting feather on a hiking trip in New Mexico. Upon further research, Molly discovers the feather belongs to that of Acquila chrysaetos, the golden eagle. Despite this discovery, Molly decides to use the feather in an art project.
• Harry Haliaeetus is vacationing in Arizona. After visiting a Hopi Reservation, Harry stops at a roadside stand selling Native American artifacts. Harry purchases a beautiful Kachina doll made with many feathers. Harry thinks his daughter Harriet will love the doll and is ecstatic because he doesn’t pay any tax on the doll. Harry is nearly sure the feathers are eagle feathers, but figures it’s not hurting anything. The woman tells him not to say from where he purchased the doll.
• Farmer Feather is tired of finding dead chickens on his free-range farm. As a lifelong rancher, he is familiar with bird species, both domesticated and wild. One day, he notices a large bird swoop down and snag one of his young hens. Farmer Feather takes his trusty Winchester and shoots down the bird, which he surmises is a raptor of some sort.
• Suzy Sioux inherited a large wall-hanging from her Native American great-grandmother. Suzy knows the artifact dates back at least 65 years. While she loves the idea of traditional art, Suzy’s house is strictly contemporary. Suzy decides to sell the piece to a local collector so that she can fund a new painting.

In all of these examples, each person could be subject to criminal prosecution under the Eagle Act. Each example illustrates a prohibited taking of an eagle or eagle part (i.e., possession, purchase, killing, and selling). It is the intent divined from each example that determines prosecution under the Act.

As originally enacted, the Eagle Act prohibited the "willful" possession and taking of bald eagles. This reflected the specific concern of Congress of the potential extinction of the bald eagle. Despite the inclusion of the golden eagle in 1962, the population of both species still experienced a decline. Not until 1972 did Congress amend the statutory penalties and intent. Inflamed by the senseless slaughter of hundreds of eagles by Western ranchers, Congress reduced the mens rea required for conviction from "willfully" to "knowingly" and "with wanton disregard for the consequences" and increased the penalties upon convictions.  U.S. v. Moon Lake Electric Ass'n, Inc. , 45 F.Supp.2d 1070, D.Colo., 1999); Act of October 23, 1972, Pub.L. No. 92- 535, 86 Stat. 1064.

One case illustrates the difficult application of the BGEPA’s intent provision in an individual prosecution.

In United States v. Hetzel , 385 F. Supp. 1311 (W.D. Mo. 1974), defendant appealed a $1.00 fine for possessing the talons and tarsus of an eagle he found while walking in the woods. The eagle had presumably died from other causes some days prior. Defendant intended to bring the bird parts to a Boy Scout function. The defendant readily admitted that he possessed the eagle to the federal officer present in the game refuge. He explained, however, that he was unaware it was illegal to possess the carcass.

The 1940 version of the Act included the word "willfully" in the description of those actions that would constitute a taking under the statute. In reversing the magistrate’s decision, the court found the legislative history surrounding the 1972 amendment’s to the act indicated that a specific intent was necessary for conviction under the act. The government’s reliance on the strict liability component of the Migratory Bird Treaty provisions was misplaced, as the court found the Eagle Act contained no such proviso. (See, MBTA, 16 U.S.C. § 701 ). The court determined that a literal construction of the statute, whereby a person would be convicted of a federal crime regardless of whether he or she had criminal intent, would create a non-sensible interpretation of the statute.

It is important to note that the BGEPA was modeled after the Migratory Bird Treaty Act. U.S. v. Moon Lake Electric Ass'n, Inc ., 45 F.Supp.2d 1070, D.Colo., 1999). However, as was established in Hetzel , the Eagle Act is not a strict liability crime unlike the MBTA.

The BGEPA applies only to those who act ‘knowingly, or with wanton disregard for the consequences’ of their acts. 16 U.S.C. § 668c; see also S.Rep. No. 92-1159, at 5, reprinted in 1972 U.S.C.C.A.N. 4285, 4289 (the defendant ‘must be conscious from his knowledge of surrounding circumstances and conditions that conduct will naturally and probably result in injury’ to a protected bird).

Moon Lake , supra, at --. The MBTA, on the other, provides that one is subject to conviction for merely taking protected birds.

The court in Hetzel seemed most offended by the government’s implication that defendant should have reported the finding of the eagle carcass. As the court observed, the statute contains no citizen reporting requirement, only an incentive provision. It is arguable, however, that Hetzel’s possession of the eagle was knowing. The statute does not distinguish the type of knowledge one must have to constitute criminal possession (e.g., knowledge based on some form of malice or recklessness, or simple knowledge of one’s actions). In the magistrate’s findings of facts, he noted that defendant did not know that removing the talons from the eagle for the Boy Scout function was a violation of the law. This surely brings to mind the legal maxim that ignorance of the law is no defense. One wonders whether the court would have been so sympathetic to defendant’s plight had he intended to use the talons in an offensive ritual or anti-American display of art.

The Hetzel decision is often relied upon for its analysis of the intent component under the BGEPA. However, despite the court’s ultimate finding, it is arguable under the facts that the defendant indeed possessed the eagle parts with the requisite intent. First, defendant was unequivocally aware that the carcass was that of an eagle, for he specifically removed the legs to show his Boy Scout troop. Secondly, he knowingly picked up the eagle and later dissected the eagle to obtain the desired parts. Lastly, he actually transported the eagle from its resting spot to his vehicle for exhibition purposes without first obtaining a permit. The statute does not distinguish innocent possession, or possession without knowledge of the illegality from possession with knowledge of the eagle’s protected status. As the oft-touted legal maxim statues, ignorance is no defense to the law. As with the previous examples of violations based on possession, purchase, killing, and selling, the law does not distinguish based on the type of activity. Rather, it is the intent one possesses that determines prosecution. Based on a plain reading of the BGEPA, the viability of the factual determination in Hetzel is tenuous at best.

This degree of intent under the 1972 BGEPA standard was again examined in U.S. v. Corbin Farm Service , 444 F.Supp. 510.(D.C.Cal. 1978). While the facts of the case did not implicate the BGEPA, the court used the language of the BGEPA to distinguish the degree of intent required under the MBTA. Citing the Senate Report related to the 1972 amendments, the court focused on the difference between "knowingly" and "with wanton disregard:"

The word "knowingly" means that the offender knew what he was about to do and, with such knowledge, proceeded to do the act. The additional words "with wanton disregard for the consequences of his act" were also added to lessen the degree (of) knowledge required to be proved in order to obtain a conviction under the Act. The evidence would have to show more than mere negligence; while there is no intent to injure, the person must be conscious from his knowledge of surrounding circumstances and conditions that his conduct will naturally and probably result in injury.

Id. at --. This again begs the question of whether an average person would have knowledge that his or her possession of an eagle feather would "naturally and probably result in injury." While this change in the level of intent was said to result from congressional outcry over the aerial killing of several hundred eagles by ranchers in the Southwest (See, Section 1D, supra for further details), its application to individuals remains unclear.

Recent decisions have not elaborated on the level of intent. It is quite clear, however, that innocent possession is an unlikely defense despite the court’s sympathy to the defendant in Hetzel . Interestingly, the previous examples all illustrate situations where one could face prosecution under the BGEPA. However, while an individual could be prosecuted for removing a golden eagle nest for a classroom project, resource development operators have been given special clearance. In 1983, the federal regulations were amended to allow mining operators to remove inactive golden eagle nests under certain circumstances. See, 48 F.R. 57295 (December 29, 1983) . Indeed, the regulations have often provided more contravention to the language of the statute than do judicial opinions.

B. Electrocutions and Poisoning - Beyond Hunting and Poaching

The language of the BGEPA covers a broad expanse of activities not just those associated with traditional hunting. This was intentional on Congress’ part, as it recognized the diverse nature of activities that threatened the eagle’s survival. While the statute requires a minimal level of intent, the application of this standard appears to depend on the level of knowledge a defendant should have. In the case of electric companies, this included inadequate measures to protect eagles from electrocutions on power lines. Further, in 1972, the BGEPA was amended to added the word "poison" to its definition of take. 16 U.S.C. § 668c . This specific change was directed at the responsibility of large-scale farmers to protect wildlife from poisoning by agrichemicals. (See generally, Corbin Farm Service , supra).

The intent to include electrocutions as a form of "taking" was judicially recognized in Moon Lake . The defendants in that case were charged with killing eagles under both the MBTA and the BGEPA after Moon Lake, a "rural electrical distribution cooperative," caused the death of 38 birds of prey including eagles. The death of the birds resulted from them roosting on power poles that were not equipped to prevent this mortality, despite the relatively inexpensive cost of the equipment. Moon Lake .

On appeal, Moon Lake argued that both the MBTA and the BGEPA were designed to address only those activities traditionally associated with hunting and poaching. Id. Moreover, Moon Lake further contended that the electrocutions at issue were not intentional; thus the company lacked the requisite mens rea under both statues.

The court disagreed finding the plain language of both statutes belied defendant’s argument.

Only taking, shooting, shooting at, capturing, and trapping constitute acts normally associated with hunting and poaching. By prohibiting poisoning," "killing," "possessing," "molesting," and "disturbing" in addition to the acts normally associated with hunting, the BGEPA, like the MBTA, suggests that Congress intended to regulate conduct beyond the sort engaged in by hunters and poachers. And, as does the MBTA, the BGEPA proscribes taking or killing "at any time or in any manner." 16 U.S.C. § 668(a).

Id. at --. The court also found the BGEPA legislative history instructive on the issue of intent. Perhaps the most significant piece to the court was the congressional hearings surrounding the 1972 amendments. As observed by the Moon Lake court, eagle electrocution was explicitly discussed before the Senate Committee on Commerce:

Sen. Spong: What progress is being made in protecting eagles from electrocution in the West?

Mr. Hansen: We are very gratified to report that substantial progress has been made within the past year to correct this situation. Electrocution on power transmission poles in the West has been a low grade but constant source of eagle deaths for many years . . . We are getting on top of this situation very well.

Mr. Reed: . . . As you know, the great problem is when the bird lands with his wings outspread and takes off with his wings outspread. He can make contact between two wires and that will electrocute him. And, or course, the power line is a place which a bird of prey enjoys sitting on because he has a great view of the countryside and can see his prey. So they are naturally attracted. If the stringers are placed further apart it avoids the problem of accidental electrocution.

Moon Lake , supra, at --, citing the Bald Eagle Protection Act: Hearings on S.2547, H.R.12186, and H.R.14731 Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92nd Cong. 22-24, Serial No. 92-63 (June 29, 1972) (statements of Senator William B. Spong, Jr. (Virginia) and Nathaniel P. Reed, Assistant Secretary of the Interior for Fish and Wildlife and Parks).  The court’s conclusion regarding liability for electrocution under the BGEPA was further supported in the legislative record:

We have your memorandum of July 19, 1972, inquiring as to the liability of power companies under the provisions of H.R.12186. The proposed legislation . . . means that the power companies would not be liable for acts committed prior to the date of enactment. However, since power lines have a tendency to destroy eagles, such lines erected after the date of enactment should provide such safeguards as are available in order for the power companies to avoid the charge of acting with ‘negligent disregard for the consequences’ of their acts. This obligation would be no more of a burden upon power companies than upon any other person or organization performing operations which had a tendency to destroy wildlife. In every case, reasonable precautions would have to be taken to prevent the killing of eagles.

(Ltr. from C. Brester Chapman, Jr., Associate Solicitor, U.S. Department of the Interior, to Spencer H. Smith of 7/20/92, reprinted in Hearings at 24.)

Moon Lake , at ---.

Likewise, the BGEPA also encompasses death to eagles through poisoning. The Moon Lake court indicated that the Senate hearings also addressed the issue of intent specifically with regard to poisoning:

[Mr. Reed:] For example, if an individual in placing a poison should kill an eagle we have to prove that this was a willful action. With the change in language this will indicate to us that if the person using the poison knows that the poison has the capability to kill wildlife, and is using it with negligent disregard for the consequences of his act, it makes our enforcement position much stronger.

Sen. Spong: So it would be easier to gain conviction?

Mr. Smith: Correct, sir.

Moon Lake , supra, at --.

The issue of poisoning under both the BGEPA and MBTA was also explored in Corbin Farm Service . In Corbin Farm Service , an alfalfa field owner sprayed the field with a registered pesticide were charged with misdemeanor violations of the Federal Insecticide, Fungicide, and Rodenticide Act and the Migratory Bird Treaty Act, stemming from the death of American widgeon, a waterfowl protected under the MBTA.

The court’s ruling further solidified that the BGEPA covered acts beyond traditional hunting. Indeed, the word "poison" was added to the BGEPA by the 1972 Amendments. Corbin Farm Service ; Act of Oct. 23, 1972, Pub.L.No.92-535, s 4, 86 Stat. 1065. The court observed that the primary purpose of the amendment was to reduce the scienter requirement. Corbin Farm Service ; See, S.Rep.No.1159, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.Code Cong. & Admin.News p. 4285. This was due in part to the fact that "[t]he Interior Department had taken the view that the Act did not apply to poisoning prior to the amendment unless the poison was deliberately put out to kill eagles." Corbin Farm Service , supra, at --. The court in fact used this legislative history to buttress its argument that the MBTA likewise covered poisoning. The expansive nature of activities under the BGEPA is directed at deterring reckless and negligent killing of eagles by profit-driven corporations. This feature is but one of the many deterrent mechanisms under the Act.

C. Loss of Grazing Rights is a Collateral Matter

Perhaps one of the most unique deterrent provision under the BGEPA is the grazing rights component. The BGEPA provides that, in addition to criminal and civil penalties, any person convicted under the statute may lose his or her grazing contracts with the federal government. This component was added to the BGEPA in the 1972 amendments. Faced with lax enforcement of eagle violations under the act, Congress sought to put some teeth behind the penalties. After several hundred eagles were shot by ranchers in the Western states, Congress sought to deter mass killings by large-scale livestock operations.

Senate Report No. 92-1159, U.S. Cong. & Admin.News, 92 ^nd Cong., 2d Sess. 1972, p. 4285, reflects Congressional concern with the then recent slaughter of nearly 500 rare bald and golden eagles which were gunned down from helicopters over ranches in Wyoming and Colorado during 1971. The Department of Interior's estimates of a golden eagle population of between 10,000 and 20,000 birds, and a bald eagle population of between 20,000 and 30,000 birds was noted, together with the fact that only an estimated 600 pairs of northern bald eagles and less than 400 pairs of southern bald eagles nested in the contiguous United States in 1971.

See, United States v. Hetzel , 385 F.Supp. 1311 (W.D. Missouri 1974), citing, Senate Report No. 92-1159, U.S. Cong. & Admin.News, 92 ^nd Cong., 2d Sess. 1972, p. 4285.

This penalty provision was recently deemed a "collateral" aspect of conviction by one district court. In U.S. v. Okelberry , 112 F.Supp.2d 1246 (D.Utah, 2000), the court held that counsel is not deemed ineffective for failing to advise defendant that he may lose his grazing rights with the government if convicted under the BGEPA. Defendant Okelberry was a livestock rancher in Utah. In a controlled operation by Fish and Wildlife agents to obtain further evidence against defendant who was suspected of setting out poison traps, agents set up a "ruse" site next to an existing poison trap. At this site, agents set a deceased carcass of an eagle, skunk, and deer. An agent with whom defendant was acquainted then called defendant and told him that he saw some carcasses without telling him the location of the carcasses nor what action to take. A camera set up at the ruse site then detected defendant loading the eagle carcass onto the bed of his truck. Defendant was then indicted after the eagle carcass was discovered in the bed of his truck.

Okelberry ultimately pled guilty to the violation. However, after sentencing, he challenged the basis of his plea, alleging that he was not informed of the loss of grazing rights. The court denied his motion to withdraw his plea for ineffective assistance of counsel, finding both the permissive language of the grazing provision as well as the collateral nature of the sanction made it a collateral matter. Counsel need not inform a defendant of every collateral aspect in pleading guilty. The court found the sentence fair and just in light of the circumstances and likewise found his plea need not be invalidated for the court’s failure to advise defendant of this consequence.

D. The Enhanced Penalty Provision

The enhanced penalty provision of the BGEPA is another significant deterrent feature of the statute. Section 668(a) of the BGEPA states:

Provided, That in the case of a second or subsequent conviction for a violation of this section committed after October 23, 1972, such person shall be fined not more than $10,000 or imprisoned not more than two years, or both: Provided further, That the commission of each taking shall constitute a separate violation of this section . . .

As is indicated in the language, the BGEPA was amended in 1972 to enhance the penalties for the first offense under the statute as well as second or subsequent violations. Notably, the statute explicitly provides that each taking of any eagle, part, nest, or egg constitutes a separate violation. In theory, one could suffer a separate conviction for each eagle shot on a hunting trip. Likewise, a lengthy "sting" operation, whereby federal agents pose as interested hunters or collectors of eagle artifacts could result in multiple convictions under the Act. It is unlikely that the statute would be construed to allow separate convictions for each eagle part, as the "taking" implies a separate action under the statute (e.g., a person would not be charged with forty counts under a criminal indictment for possessing 40 individual feathers).

The language regarding the enhanced penalty provision was challenged in United States v. Street , 257 F.3d 869 (8 ^th Cir. 2001). The court in Street held that the enhanced penalty provision of the Eagle Act is triggered by a second violation, not a second conviction. The defendant is Street argued that the Act requires a conviction before the commission of the second violation to fall within the ambit of the enhanced penalty provision. The court disagreed, finding that multiple convictions in a single proceeding were sufficient to trigger the enhanced penalty provision. Thus, the court affirmed defendant’s felony conviction and sentence of sixteen months imprisonment.

The comprehensive scheme of deterrent and punitive features embodies the statute’s primary directive. Within the prohibited activities under the BGEPA, it is commerce in eagle parts that captures the most attention.

III. Commerce: a Prohibited Strand in the Bundle of Property Rights  

The BGEPA strictly prohibits possession of bald and golden eagles and their constituent parts. 16 U.S.C. 668(a).   However, it is the commerce in eagle parts that courts have focused upon as a specific threat to the eagle’s survival. Commercial demand necessarily feeds the need to take more eagles. It is this cycle fostered by a monetary incentive that Congress determined particularly dangerous to the eagle. The act itself explicitly lists all forms of commerce prohibited under the Act:

Sell, purchase, barter, offer to sell, purchase or barter, transport, export or import at any time or any manner . .

The regulations go further by prohibiting the commerce in lawfully acquired eagle parts.

(2) You may not transport into or out of the United States, import, export, purchase, sell, trade, barter, or offer for purchase, sale, trade, or barter bald or golden eagles, or their parts, nests, or eggs of these lawfully acquired pre-act birds.

50 C.F.R. 22.2 . As is evident, any form of commerce or an offer to engage in commerce is strictly prohibited under the BGEPA. The only allowance under the regulations for eagle parts acquired before 1940 relate to the possession and transportation within the United States of these pre-Act birds. 50 C.F.R. §22.2 (a)(1) . However, a permit is required to transport pre-Act birds outside the United States. 50 C.F.R. § 22.2(a)(2).   Native Americans who acquire eagle parts or feathers by gift or inheritance must still receive a permit from the Department of the Interior to possess them for use in Indian religious ceremonies. 50 C.F.R. s 22.22(a)(1) (1992).

Courts have consistently defeated challenges to the Act where defendants were shown to have engaged in commerce of eagle parts. Congress explicitly enacted the BGEPA to serve as an absolute bar on commercial transactions involving eagles or their parts. The Supreme Court further solidified the issue by holding that the Act forbids the purchase and sale of all eagle parts, even those acquired before 1940. Thus, the main issue before the courts typically involves a claim of an unconstitutional taking of property by the government.

A. Pre-existing Eagle Artifacts

The Supreme Court resolved the issue of commercial transaction in eagle parts in Andrus v. Allard , 444 U.S. 51 (1979). In Allard , the United States Supreme Court unequivocally held that the act forbids commerce in eagle parts whether those parts were obtained before or after the enactment of the statute. The defendants in Allard sold artifacts that contained prohibited eagle parts. These artifacts existed prior to the establishment of the Eagle Act. The plain language of the statute provides an exception for the "possession and transportation" of eagle products taken prior to the date of the Act. Through this inference, the Court determined that Congress expressly excepted these activities for pre-existing bird parts from the overall prohibitions on taking. When the act was amended in 1962, Congress again excepted these two functions for pre-existing bird products. The Court found that any commerce in eagles was too significant a threat to the survival of the species. While the Act itself provides for the "possession and transportation" of bird parts obtained before the effective date of the Act, the plain language of the statute does not contemplate commerce in those same bird parts. 16 U.S.C. 668(a).   In fact, the court observed the language of the amendments buttressed this argument:

That this precise use of terminology was intentional is clear from the legislative history. An explanatory letter from the Department of Agriculture that was adopted in the Senate Report on the bill defines the reach of the Eagle Protection Act to make it unlawful to "take, possess, sell, purchase, transport, or otherwise deal with the bald eagle . . . with the proviso to the effect that it will not apply to the possession or transportation of any such eagle . . . taken prior to the effective date of the bill." S. Rep. No. 1589, 76th Cong., 3d Sess., 1 (1940). Further, when Congress amended the Eagle Protection Act in 1962 to cover golden eagles, it once again excepted only possession and transportation of pre-existing artifacts from the general ban. 76 Stat. 1246. And it is particularly relevant that Congress has twice reviewed and amended the statute without rejecting the Department's view that it is authorized to bar the sale of pre-existing artifacts.

Allard at --.

Significantly, "in 1962, Congress extended the Eagle Protection Act to cover golden, as well as bald, eagles, 76 Stat. 1246, and in 1972 penalties under the statute were reinforced, 86 Stat. 1064. On each occasion - especially the latter - the purposes and scheme of the bill were considered." Allard , supra, at --. Thus, it was plain to the court based on the statutory language and the legislative history that the prohibition on commerce covered pre-existing artifacts.

B. Commerce in Eagle Parts Negates Free Exercise Challenges

The Ninth Circuit later affirmed the reasoning of Allard under different factual circumstances. In U.S. v. Hugs , 109 F.3d 1375 (9 ^th Cir. 1997), the defendants invited undercover agents on a big game hunt. During the hunt, defendants successfully shot at several golden and bald eagles. Later, the agents supplied the defendants with eagle parts in exchange for cash and services. On appeal, defendants challenged their convictions under a free exercise argument. Specifically, the defendants contended that their religious freedom was abridged by the Eagle Act due to the difficulty in obtaining necessary eagle parts through the permit process.

The court first noted that defendants could only challenge the facial validity of the act. Since the Hugs did not have a permit to take eagles nor did they apply for one, they were precluded from challenging the administration of the permit process. Further, the court aligned itself with other cases, holding that a claim challenging free exercise of religion may not be asserted where the activity at issue was purely commercial.

This trend to disregard free exercises challenges on appeal where defendants sold eagle parts has continued. In U.S. v. Sandia , 188 F.3d 1215 (10 ^th Cir. 1999), the defendant was initially charged with selling a golden eagle skin and other migratory bird parts in violation of the Migratory Bird Treaty, the Bald and Golden Eagle Protection Act, and the Lacey Act. While defendant ultimately pled guilty to one violation under the Lacey Act for the sale of a migratory bird, the analysis by the court is still relevant. The district court denied defendant’s argument that he had a right under the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb-1) to possess the birds because it ruled that the statute did not apply. On appeal, the Tenth Circuit held that RFRA was not implicated, as the subsequent commercial sale of the eagle skin defeated defendant’s claim of free exercise. Defendant never alleged that the sale to the undercover agents was in any way a religious act. The court found that the sale negated a claim of possession for religious purposes and instead brought the possession under the ambit of federal law. Indeed, the court found offensive the notion that one could, "under the guise of religion, stockpile protected species for commercial sale." Id. at ---.  In the still murky jurisdprudence surrounding religious challenges to the BGEPA, it appears that commercial sale uniformly dissolves challenges on appeal.  This, in effect, upholds the underlying policy of the BGEPA:  deter a market for eagles and target those who engage in this conduct.

C. Abandoned Property

Even abandoned property is subject to the strict prohibition on the sale of eagle parts. Abandoned or seized wildlife property (e.g., animals or animal parts) are typically donated or sold by the federal government to noncommercial entities that will display or exhibit the wildlife, if no return to the wild if possible. However, the regulations specifically forbid the sale of abandoned eagle artifacts because it would contravene the policy behind the BGEPA.

Sale of migratory birds and bald or golden eagles would be prohibited because the Service believes that sale is inappropriate when possession and sale of these birds is highly regulated or prohibited by the Migratory Bird Treaty or Eagle Protection Acts in order to conserve them.

46 FR 46605, (September 21, 1981).  (See also, 50 C.F.R. 12.37(c), which incorporated this policy into the regulations).  Moreover, even donations or loans to Native Americans of abandoned wildlife property must be completed pursuant to the permits requirements of 50 C.F.R. 22.22 .  50 C.F.R. 12.36 .  The recent proposed NAFERA (Native American Free Exercise of Religion Act) (See, Section 3D, supra) legislation would create an exception to abandoned eagle parts found on Indian reservations. How this proposed change would be reflected in the regulations is undetermined.

D. Have Eagle, Will Travel?

The BGEPA prohibits any type of commerce in eagles or their parts. Moreover, the language of the Act prevents the import or export of eagles or their parts for any purpose. In 1999, the federal government sought to eliminate this transportation burden on both the scientific and Indian community by adopting an interim order allowing the transportation of eagles across the U.S. border for these limited purposes.

Since the adoption of the Eagle Act, its amendments, and its regulations, we have received requests to allow the transportation of dead bald and golden eagles, their parts, nests, or dead eggs into or out of the United States for scientific or exhibition purposes or for religious use by American Indian tribes. There were, however, no provisions within our regulations to allow such activity and the scientific and educational community and the Indian tribes effectively were prevented from crossing international borders with such items. We recognize that this situation creates some problems both in the sharing of science and in the exercise of religious freedoms. We intend to allow American Indians meeting the certification requirements in § 22.22 and public scientific or educational institutions to transport into or out of the United States on a temporary basis dead bald and golden eagles, their parts, nests, or dead eggs.

(See,  64 FR 50467 (September 16, 1999). As noted above, special permits must be obtained for any transportation of eagles outside the U.S.  50 C.F.R. § 22.22. The Act does except the possession and transportation within the United States of those eagles or eagle parts lawfully obtained prior to 1940, the original date of the statute’s enactment. 16 U.S.C. 668(a) .

The above statement, while giving more flexibility to those Native Americans traveling into or out of the U.S. with eagle parts, contravenes the plain language of the statute. In essence, it appears that the Regulations attempt to amend the statute, a legal impossibility. While the Regulations reflect a necessary action to facilitate the use of eagle parts for religious ceremonies and scientific research, the legal validity in light of the statute is questionable and possibly ripe for legal challenge.

E. Prohibition on Commerce Does Not Constitute a Taking

In 2002, the Eighth Circuit aligned itself with Allard in holding that conviction under BGEPA does not constitute an unconstitutional taking. In U.S. v. Kornwolf , 276 F.3d 1014 (8 ^th Cir. 2002), defendant Kornwolf challenged his conviction under the Eagle Act as an unconstitutional taking of property by the government. At issue was the seizure of several golden eagle items confiscated in connection with the violation. The Eighth Circuit found this case factually analogous to Allard . The only distinction was the fact defendant himself had obtained the eagle artifacts prior to the date of the amendment of the statute to include golden eagles. However, the court noted the language from Allard that strictly condemned the commercial sale of eagle items, regardless of the date they were acquired. Recent holdings in takings cases that provided greater solicitude to property owners displaced by government action were equally unpersuasive. The court found Allard directly controlling on the issue of the sale; recent takings cases did not affect the court’s determination. Significantly, defendant was compensated for the sale of the artifacts in the sum of $12,000, an amount that the trial court refused to disgorge. Thus, defendant’s argument that the seizure represented a taking was less persuasive as he received commercial compensation.

This limitation on commerce in eagle artifacts was upheld in a bankruptcy context. The Arizona Bankruptcy Court held that since the BGEPA prohibited the sale of a Sioux Indian ghost dance shield which had eagle feathers attached to it, the bankrupt, to whom the artifact was entrusted for possible sale, nor subsequent purchasers had a property interest in it. Thus, the artifact belonged to its original owner.  In re Pajarito American Indian Art, Inc. , 7 B.R. 343 Bkrtcy.Ariz., 1980.

The Pajarito holding was distinguished in a tax proceeding. In Sammons v. C.I.R. , 838 F.2d 330 (9 ^th Cir. 1988), the court upheld a charitable deduction stemming from the donation of artifacts containing eagle feathers. The court noted that while the initial purchase by the taxpayers may have violated federal law, their ownership of the artifacts created sufficient title to pass to the museum upon donation. Had the government been inclined, it could have instituted a forfeiture proceeding under the BGEPA. The failure of the government to act in accordance with the statutory requirements did not void ownership by the taxpayers, nor did it contravene public policy. The court found the government’s argument that allowance of a deduction might frustrate the policy of preserving eagles or even encourage the killing or acquisition of eagle artifacts in order to receive a tax deduction specious.

It may be true that persons who presently own artifacts of this nature might be encouraged to donate the items to museums so that they could claim a deduction on their tax returns, but we do not view this as a threat to the national policy of protecting endangered bird species. Nor do we find anything in the record to suggest that by permitting a deduction for the contribution of the Eagle Artifacts, unscrupulous sellers of Indian art are likely to hunt, capture and kill protected eagle species in an effort to manufacture 'ancient' artifacts that can be sold to collectors, unsuspecting or not, for spurious donations to charitable organizations.

Id. at --. The court's pronouncement reflects a pragmatic interpretation of the facts at hand.  It is arguable that, under these circumstances, even allowing a tax benefit to individuals who possessed the eagle parts illegally does fly in the face of the congressional intent of the act.  As noted by the court, however, the onus falls not on a tax court, but upon those responsible for enforcing the provisions of the act.

F. The BGEPA and the Commerce Clause

The Commerce Clause of the United States Constitution, Art. 1, § 8, cl. 3, allows Congress to enact laws affecting interstate commerce. Put simply, this provision allows Congress to exclusively regulate any activity that touches commerce between the states. The Eagle Act has been challenged as an overly broad exercise of commerce power by Congress. In doing so, appellants have argued that this conservation measure has nothing to do with commerce or does not substantially affect commerce.

The Supreme Court first alluded to this commerce power in Allard . While the issue raised specifically dealt with the sale of pre-existing artifacts, the Court used language that undeniably described the Act as a restriction in commerce.

It was reasonable for Congress to conclude that the possibility of commercial gain presents a special threat to the preservation of the eagles because that prospect creates a powerful incentive both to evade statutory prohibitions against taking birds and to take a large volume of birds.

Allard, at --.

In 1995, the Supreme Court further delineated the parameters of the Commerce Clause. See, United States v. Lopez , 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Specifically, the Court established that Congress’s exercise of commerce power be related to an activity that substantially affects interstate commerce. This holding spawned challenges to conservation statutes, alleging that they do not have any substantial affect on interstate commerce. In United States v. Bramble , 103 F.3d 1475 (9 ^th Cir. 1996), the Ninth Circuit rebuffed such a challenged to the BGEPA. Defendant in Bramble was charged with attempting to sell eagle feathers among with other criminal violations. On appeal, defendant contended that, under the Lopez holding, Congress overreached its commerce regulating authority in enacting the BGEPA because the Act does not extend to any commercial activity or economic enterprise.

The court disagreed, first noting that conservation statutes were routinely upheld as a valid commerce power prior to Lopez . Moreover, even after Lopez , the Eagle Act still constitutes a valid exercise of the Commerce Clause. The court noted that not only does the Act explicitly regulate both the possession and sale of eagles and eagle parts, but that this regulation preserves the species for other commercial ventures. Eagles play a role in both recreational and scientific exploration, the court observed. These activities in and of themselves comprise economic ventures. Further, in a purely pragmatic and human-centered perspectives, the preservation of species maintains a genetic pool that may be of some use to humans someday.

[T]he protection of an endangered species of wildlife with some commercial value may permit the regeneration of that species to a level where controlled exploitation of that species can be resumed. In such a case businessmen may profit from the trading and marketing of that species for an indefinite number of years, where otherwise it would have been completely eliminated from commercial channels in a very brief span of time. Potentially more important, however, is the fact that with each species we eliminate, we reduce the [genetic] pool ... available for use by man in future years . . . From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask.

Id.at --.  Thus, Congress’ enactment of the BGEPA to prevent the extinction of eagles was deemed rational or, a lawful exercise of police power by Congress, by the court under the Lopez test.

IV. The BGEPA and the Use of Eagles by Native Americans

Many Native American religions venerate the eagle as a spiritual messenger. White , supra. In fact, the eagle as a religious symbol has been said to be akin to the crucifix in Christianity. Abeyta at --. Prior to the colonization by Europeans, Native Americans were free to hunt as needed for both subsistence and ceremonial needs. This would, of course, include hunting and otherwise possessing the once prolific eagle as a source for religious artifacts.

Once Native Americans sovereignty was restricted to reservations, and treaties delineated the rights afforded to those tribes, hunting still continued by virtue of treaty. Since the adoption of the Eagle Act, Native Americans have asserted a unique status to kill or possess eagles based on several theories: (1) the right to hunt on-reservation through treaties; (2) the First Amendment derived right of free exercise of religion; and, most recently, (3) invocation of the Indian Trust Doctrine.

A. Abrogation of Treaty-Based Hunting Rights

Prior to the enactment of the Eagle Act, Native Americans possessed and sometimes hunted eagles in an unrestricted manner. When the decline of the eagle was brought to the attention of Congress in the 1930’s, no mention was made of the use of eagles by Native American tribes. Moreover, the right to hunt or fish upon reservation land was almost always afforded by treaty. The broad term "whoever" seems to imply an intent by Congress to extend the Act to all persons within the U.S. borders. However, the BGEPA does not explicitly state whether Indian treaty hunting rights were abrogated by its enactment. In fact, the only mention of Indians within the statute pertains to the exception for religious ceremonies. As a consequence, courts have grappled with the issue of whether the Eagle Act implicitly modified those hunting rights afforded to Indians by virtue of treaty. The crux of the issue lies with the semi-sovereign status of Native Americans tribes residing on reservations. In creating these Indian nations, the United States afforded certain traditional land rights to Indians. Because the BGEPA contains no language or provision regarding abrogation, one author has suggested that courts decided the issue of "whether treaty hunting rights are abrogated by implication." Boradiansky , supra, at --. Subsequent amendments to the original Act did not define the extent of treaty abrogation; hence, an examination of relevant case law is crucial.

The Eighth Circuit was the first to deal with the issue of treaty abrogation in an explicit manner. In United States v. White , 508 F.2d 453 (8 ^th Cir. 1974), the court did not find that treaty-derived hunting rights on Indian reservations were abrogated by the Eagle Act. Specifically, the court held that congressional silence is insufficient to impute an intent to abrogate these historically significant rights. The court opined that the only reference in the act was the 1962 amendment pertaining to permission to use eagles for Indian religious purposes. 16 U.S.C. § 668a . It was not persuaded by the government’s argument that the specific inclusion of an exception for religious purposes of Indians evinced a congressional intent to abrogate traditional hunting rights.

The dissent by Judge Lay prognosticated the trend in treaty interpretation under the Act. Judge Lay found the majority’s reasoning too narrow, ignoring traditional rules of treaty abrogation. While the language of an act is primary, courts must also look to the legislative history and stated purpose of the statute. By limiting its analysis to the literal wording of the Eagle Act, Judge Lay opined that the underlying purpose of the statute was overlooked. Congress, by beginning the act with the broad term "[ w]hoever ," demonstrated an intent to apply the act to all that reside in the United States. 16 U.S.C. § 668(a)

In fact, as Judge Lay stated, "[v]iewing the avowed purpose of the legislation, they [the words] leave no room for construction or interpretation."

The dissent in White was soon to become the trend in reviewing treaty-based challenges to the BGEPA. While the right to hunt on tribal lands was in dispute, courts uniformly rejected treaty-based claims where the violation concerned the sale of eagle parts. Noting the historic context of the treaty in question, the Ninth Circuit observed that the sale of eagle parts by Indians was denounced by custom and religion. Since Indian treaties are reviewed under the terms that the Indians would have understood them at the time they were drafted, the court held that it would be contrary to hold that treaties endowed a right to sell eagles. United States v. Top Sky , 547 F.2d 486 (9 ^th Cir. 1976).

It was not until 1980 that Judge Lay’s dissent was formally adopted by the Ninth Circuit in United States v. Fryberg , 622 F.2d 1010 (9 ^th Cir. 1980). Like the defendant in White , Fryberg, an enrolled member of the Tulalip Tribe, challenged his conviction for shooting an immature bald eagle on the Tulalip Reservation as a violation of established treaty hunting rights. While the court agreed with the White majority that there is no express intent on the face of the statute abrogating treaty rights, the amendment related to Indian religious purposes is but one factor to consider. The surrounding circumstances of the Act and the legislative history demonstrate a congressional intent to abrogate treaty rights. The court observed that the modification of Indian hunting rights attributed to the act is not significant, as there is no historical evidence that Indians hunted eagles for subsistence or commercial purposes. Id. Since the only reason Indians hunted eagles was for religious ceremonies, Congress’ amendment of the act to allow for taking of eagles for Indian religious purposes inherently modified treaty rights.

In addition, the court noted that conservation statutes routinely modify treaty rights in an effort to achieve their broad purposes. Congress enacted the BGEPA to assure the survival of a species in peril. Congress’ enhancement of the penalties under the Act and the inclusion of the related golden eagle support the conclusion that it intended to modify all treaty-based hunting rights as they pertain to eagles.

One criticism levied against the Fryberg opinion arose from the generalized application of treaty-based rights. In crafting its decision, the court did not specifically limit its holding to endangered resources, thus leaving open the possibility that this test could abrogate Indian rights when non-endangered species were issue. Karl Forsgaard, Statutory Construction – Wildlife Protection Versus Indian Treaty Hunting Rights – United States v. Fryberg, 622 F.2d 1010 (9 ^th Cir.); cert. Denied 449 U.S. 1004 (1980), 57 Wash. L. Rev. 225 (1981). Forsgaard advocated the use of a balancing test, whereby the court would give more weight to White’s "face of the act" test or Fryberg’s "surrounding circumstances" test depending on whether the animal in question was endangered or not. Id. This hybrid test relies on the inherent self-interest of Indians to maintain a species central to cultural activities.

Unlike the 'face of the act' test, it does not create, in the context of endangered resources, the potential for the ultimate loss of the resource through immoderate taking by Indians under a treaty right. And unlike the 'surrounding circumstances' test, it does not create, in the context of nonendangered resources, the potential for loss of treaty rights to the resource through immoderate application of the test by reviewing courts.

Forsgaard, supra, at--. Interestingly, the eventual Supreme Court resolution of the issue did employ a hybrid test. Despite Forsgaard’s concern, the treaty abrogation issue did not turn on whether the eagle was deemed endangered or not.

District courts were initially divided on treaty abrogation. In a particularly bold opinion, the New Mexico District Court held that the BGEPA did not abrogate the treaty-based rights of a Pueblo Indian tribe to take eagles. United States v Abeyta , 632 F. Supp. 1031, (D. N.M. 1986). The court held that the treaty of Guadalupe Hildago specifically afforded the Pueblo Indians a guarantee that their religious rights would be respected. Agreeing with the White court, this court found that in absence of an explicit statement by Congress abrogating treaty rights, it would not read such an abrogation into the Act. In fact, in the face of silence, the court found that Congress did not intend to infringe upon the religious practices of the pueblo people guaranteed by treaty.

In contrast, the Nevada District Court held treaty rights were abrogated by the BGEPA. In United States v 38 Golden Eagles , 649 F. Supp. 269 (D. Nev. 1986), aff’d, 829 F.2d 41 (9 ^th Cir. 1987), the defendant sold various eagle parts to undercover Fish and Wildlife Service agents in exchange for money. The court noted that Fryberg previously disposed of the question whether tribal hunting and fishing rights, accorded by treaty, were abrogated by the Eagle Protection Act. Fryberg explicitly held that Congress had the authority to enact conservation laws under its police power and this extended to Indian nations under the sovereignty rights of the United States. The court went on to opine that, even if Fryberg was not controlling in this context, defendant admitted to obtaining eagles and eagle parts from areas outside of the reservation itself.

As one author observed, however, the difference in the outcome of these two cases rests on a factual distinction versus a political divide. The New Mexico District Court did not find a compelling interest that justified abridging religious freedom because the golden eagle was not endangered in that state and permits had allegedly been issue to kill depredating eagles. Britt Banks, Birds of a Feather: Cultural Conflict and the Eagle in American Society, 59 Colo. L. Rev. 639 (1988). In contrast, the Nevada court was not presented with such evidence at trial. Id. In any event, the author duly noted that, "when this issue presents itself before the Supreme Court, the decision will turn on whether the eagle is worthy of protecting. " Id.

The Supreme Court considered the eagle’s fate in 1986, resolving the conflict in the circuits. In United States v. Dion , 476 U.S. 734 (1986), the Court relied on three traditional standards in determining whether Congress demonstrated a "clear and plain intent" to abrogate treaty rights. First, the Court found that Congress’ intent to abrogated treaty rights to hunt bald eagles is "strongly suggested" on the face of the Eagle Act. Moreover, through negative inference the Court held that the subsequent amendment to allow for the taking of eagles by Indians for religious purposes demonstrates an understanding of the hardship this would place on Indians by not exempting them from the statute. Thus, a permitting process to obtain eagle parts was promulgated.

The Court also found the legislative history instructive. The Court noted that in 1940, the ban originally encompassed only the bald eagle. There was no prohibition on the more abundant golden eagle. However, in 1962, after receiving testimony concerning the veneration of eagles by various Indian tribes, Congress included golden eagles in the ban to prevent the extinction of that species as well. Congress then crafted an exception allowing Indians to obtain permits to take eagles for religious purposes. This legislative history, the Court opined, evinced recognition by Congress that it was abrogating the rights of Indians to take eagles. Indeed, "Congress expressly chose to set in a 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." Id. at 744. The Court was unconvinced by respondent’s and the Eighth Circuit’s contention that Congress, while including Indians within the coverage of the statute, did not intend the act to extend to Indian hunting on reservations. The legislative policy showed a clear intent prohibit all hunting of eagles, including Indian hunting, except where provided by permit.

The Dion decision seemed to resolve much of the conflict concerning treaty abrogation. Subsequent additions in the Federal Register have not expanded on the issue nor do the Regulations shed light. One author suggested that Dion essentially resolved the issue.

If it is valid, the Court has placed a formidable obstacle in the path of efforts to balance and harmonize the interests and aspirations of Indian people with those of the dominant society . . . Traditions relating to the free exercise of religion and to the special relationship that exists between the United States and the Indian tribes, all embodied in American law, dictate that the opinion should not have much of an effect on the right of Indian people to obtain an adequate and constant supply of eagle feathers for use in their religious ceremonies.

Banks, supra, at --.Significantly, the dormancy of the treaty issue only fueled the next and perhaps greatest constitutional challenge to the Eagle Act:  free exercise of religion.

B. Religious Challenges to the BGEPA by Native Americans

Perhaps the greatest and most unresolved challenge to the BGEPA by Native Americans has been that of the violation of the free exercise of religion as secured by the First Amendment.

Eagle parts comprise a central role in Indian religion, much akin to the crucifix in Christianity . Thirty-Eight Golden Eagles , supra, at --. Much of the litigation stems from Native Americans failing to procure eagle parts through the federal permit process. An examination of the specific exception that allows Native Americans to possess eagles is critical.

In 1962, the Eagle Act was amended to allow eagles to be taken for the religious practices of Native Americans. Congressional record indicates an understanding of the veneration of the eagle in Native American religion and culture. As noted in a letter by Assistant Secretary of the Interior, Frank Briggs, before the Subcommittee hearing in 1962, "[I]t is evident that the Indians are deeply interested in the preservation of both the golden eagle and the bald eagle. If enacted, the bill should therefore permit the Secretary of the Interior, by regulation, to allow the use of eagles for religious purposes by Indian tribes." House Hearings, 2-3; See, White , supra, at --. As a consequence, the BGEPA provides an exception for the religious practices of Native Americans.

Whenever, after investigation, the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof for the . . . religious purposes of Indian tribes . . .

16 U.S.C. § 668a . However, it is the next portion of the Act that has caused much of the controversy:

Provided further, That bald eagles may not be taken for any purpose unless, prior to such taking, a permit to do so is procured from the Secretary of the Interior . . .

It is the procuring of the permit and the extensive regulations that govern this process that have caused much of the legal acrimony.

Federally recognized Native Americans can obtain a permit for religious purposes provided they comply with the procedural requirements set forth in the Code of Federal Regulations. See, 50 C.F.R. § 22.22 . Only those Native Americans registered with the Bureau of Indian Affairs from federally recognized tribes are able to secure permits. While this permit system was officially enacted in 1974, the regulations in 25 C.F.R. 83.7 concerning federal recognition of Indian tribes were not promulgated until 1978.  See also, In the Matter of Saenz , 2001 WL 892631, No. 00-2166, August 8, 2001, 10 ^th Cir., vac’d in U.S. v. Hardman , 260 F.3d 1199 (10 ^th Cir. 2001), at n. 2.

In order to receive a permit, the following information must be submitted to the appropriate regional United States Fish and Wildlife Service office:

• Species and number of eagles or feathers proposed to be taken, or acquired by gift or inheritance.
• State and local area where the taking is proposed to be done, or from whom acquired.
• Name of the tribe with which the applicant is associated.
• Name of tribal religious ceremony(ies) for which required.
• You must attach a certification of enrollment in an Indian tribe that is federally recognized under the Federally Recognized Tribal List Act of 1994, 25 U.S.C. 479a-1, 108 Stat. 4791 (1994). The certificate must be signed by the tribal official who is authorized to certify that an individual is a duly enrolled member of that tribe, and must include the official title of that certifying official.

50 C.F.R. § 22.22 . The Code of Federal Regulations outlines the specific requirements and the appropriate regional offices to which the permits must be directed.

Generally, the primary source of eagles for all Native Americans is through the National Eagle Repository. Native Americans receive their eagles and eagle parts for use in religious ceremonies from the National Eagle Repository. In 1999, the National Eagle Repository was moved from its home in Ashland, Oregon to Denver, Colorado. The Repository collects and maintains eagle carcasses, parts, and feathers for distribution to Native Americans for religious purposes. The Region 6 Office of the United States Fish and Wildlife Service provides answers to frequently asked questions about obtaining eagle permits as well as the addresses and phone numbers of the appropriate regional offices.  This and more information can be found at http://www.r6.fws.gov/eagle/ . Apparently, eagle parts are also stored at a repository in Commerce City, Colorado. Gibson v. Babbitt , 72 F. Supp.2d 1356, 1357 (S.D. Fla. 1999).  Permits can be filed electronically at the Fish and Wildlife Permit website at http://permits.fws.gov .  (See also, Overview of Eagle Permits ).

While Indians may apply to the USFWS to kill an eagle, the Secretary of the Interior must personally approve this action and according to one source, only one such permit has ever been issued. Boradiansky , supra, at --. (But see, Section 3D, infra, discussion on Hopi eagle kills). Thus, eagles for Indian religious use are primarily obtained from the federal repository. However, it is worth noting that even forfeited or abandoned property is subject to the restrictions outlined in the Federal Regulations.

(c) Wildlife and plants may be donated to individual American Indians for the practice of traditional American Indian religions. Any donation of the parts of bald or golden eagles may only be made to individual American Indians authorized by permit issued in accordance with § 22.22 of this title to possess such items.

50 C.F.R. Part 12.36 (September 21, 1981). Thus, if a Native American comes across an eagle feather or decaying carcass, he or she must obtain a permit to possess the eagle. In essence, no one may possess any eagle part without a permit, regardless of the nature of acquisition.

It is the inherent delay caused by demand exceeding supply at the Eagle Repository that creates the most dissatisfaction with the system. Boradiansky noted that:

[D]uring the period from October 1988 through September 1989, for example, U.S. Fish and Wildlife provided 572 whole eagles, plus many parts, such as wings. As of March 1989, 1,007 applications have been approved and are being processed, 825 of which are for entire eagles. [footnotes omitted]

Boradiansky , supra, at ---.  In addition to the delays, the lack of any prioritization policy also frustrates Indian religious practices. Eagle parts are distributed based on a first-come first-served basis. As a result, many Native Americans do not receive necessary eagle parts for ceremonies.

Since one repository supplies nearly all Native Americans with their necessary eagle parts for religious uses, the delays mount. These long delays, coupled with the immediacy of certain religious ceremonies, force some Native Americans to violate this permit procedure in order to follow their religious beliefs.

For example, a burial ceremony must be performed within one week of the deceased's death, but it is impossible for a Native American to obtain an eagle permit in this time period . Ulrich, infra note 207, at B4 (quoting Rory Fausett, Oglala Sioux, attorney for Yakima Indian Nation and former law professor specializing in Native American religious and cultural issues) [footnotes omitted].

Antonia M. De Meo, Access to Eagles and Eagle Parts: Environmental Protection v. Native American Free Exercise of Religion . 22 Hastings Const. L.Q. 771 (1995).  More recently, a decision from the Tenth Circuit notes that testimony from a United States Fish and Wildlife Official who testified in one of the district court cases stated that a successful applicant can wait up to three years for an eagle carcass and six to nine months for loose feathers.  United States v. Hardman (On Rehearing En Banc), 2002 WL 1790584 (10th Cir. August 5, 2002), at --.  However, the decision observes in a footnote that "exceptions are made for death ceremonies and other emergencies that require parts immediately."  Id. at n. 12.  On the other hand, Perkins recited a particularly vivid example of the difficulty in receiving eagle parts under the permit system:

The permit system regularly frustrates Navajo Indians because each summer they must perform a religious ceremony, the Squaw Dance, which requires the use of two eagle tail feathers. Albuquerque Hearing, supra note 6, at 117 (statement of Larry Spencer, Wildlife Conservation Officer, Navajo Nation Department of Fish and Wildlife). However, due to the long delays and the rule that only one eagle application can be pending at any given time, it is impossible for the tribe to legally obtain the necessary two feathers . . . Educational and scientific applications require only a written statement of justification, and often eagles are immediately released. Washington Hearing II, supra note 6, at 164 (statement of Karen J. Atkinson, Tribal Attorney, Confederated Salish and Kootenai Tribes); 50 C.F.R. s 22.21 (1992).

Perkins , supra, at --.

These examples, while somewhat conflicting, beg the question of why is the current distribution of eagles through the Repository so delayed? Most likely, it is a combination demand outstripping supply and the extensive procedural requirements under the regulations. Indeed, the initial certification from the Bureau of Indian Affairs results in additionally delay:

This initial review of the application takes an average of 12.2 days. The Director then forwards the forms to the Bureau of Indian Affairs (BIA), which reviews the application and certifies the applicant's Native American status. BIA holds the application for an average of 26.4 days. BIA then returns the application to FWS and officials investigate the applicant's proposed activity. Under the regulations, the Director determines if the proposed activity is ‘compatible with the preservation of the bald and golden eagle.’

Matthew Perkins, The Federal Indian Trust Doctrine and the Bald and Golden Eagle Protection Act: Could the Application of the Doctrine Alter the Outcome in U.S. v. Hugs?, 30 Envtl. L. 701 (2000), at --.  Whether the burden is truly onerous to religious practices or simply reflects a balance of conservation and religious exercise appears to be a matter of perspective. 

Other regulations also govern the issuance of Indian religious permits in addition to those articulated in 50 C.F.R. Section 22 et seq . The general permit requirements in 50 C.F.R. Section 13 related to the transportation, possession, and sale of wildlife mandates the submission of a written application; an oral representation by any government employee or agent is insufficient. 50 C.F.R. §13.21a . Moreover, this section explicitly outlines the limitations on permits when one has been convicted of a wildlife offense. Permits will be denied if the applicant has been convicted of a similar wildlife violation, he or she fails to disclose material information, if the activity is deemed to threaten the wildlife at issue, or if the applicant deviates from the terms under which the permit was issued. 50 C.F.R. §13.21 ; 50 C.F.R. § 13.29; 50 C.F.R. 13.29(e) ; § 50 C.F.R. 13.42 . For example, if a Native American applies for a permit to use eagle parts for a marriage ceremony and subsequently intends to use the parts for a burial ceremony, the application could theoretically be denied. Notably, unless the Director waives the disqualification, once a Native American has been convicted for illegally taking or possessing an eagle, even if solely for religious purposes, the Native American may never again obtain an eagle permit and, therefore, may never again legally possess an eagle. Banks, supra, at --.

While the permit process has frustrated the religious practices of many, it has been argued that a complete exception for religious use is also impracticable.

The argument for a complete religious exemption also assumes that the impact on a species would be de minimus. However, Indian use of eagles is far from de minimus; the present number of eagle requests from the unpopular permit system is 1,007. Because the permit system is unpopular, these numbers probably reflect only a fraction of the actual number of eagles sought by Indians. The Supreme Court in Dion noted that congressional reports cited the Indian demand for eagle feathers as one of the threats to the continued survival of the golden eagle which necessitated passage of the Eagle Protection Act [footnotes omitted].

Boradiansky , supra at --.

This resulting limitation on free access to eagle parts due to the permit system has spawned numerous First Amendment challenges by those Native Americans seeking eagle parts for religious rituals. While the majority of courts have held that the statutory exception for Indian religious purposes complies with constitutional standards, one court has found the BGEPA unconstitutionally restricts the free exercise of Native Americans practicing traditional Indian religions.

The New Mexico District Court unequivocally held that the BGEPA infringes upon religious freedom. In United States v Abeyta , 632 F. Supp. 1031 (D. N.M. 1986), the court noted that the process to obtain these needed eagle parts takes anywhere from 18 months to two years, and is " unnecessarily intrusive and hostile to religious privacy " according to the court. Id. at ---. The court observed that the permitting process for religious uses is apparently unnecessary, as testimony revealed the eagle is not endangered nor is its population in decline in the state of New Mexico. Further, the court noted that permits are routinely given to ranchers to kill depredating eagles. Even if the interest was deemed compelling, the court found the administrative procedure, "utterly offensive and ultimately ineffectual." Id. at ---. Thus, the infringement on free exercise was not justified in light of the evidence that such stringent conservation actions were unneeded.

The Nevada district court in Thirty-Eight Golden Eagles disagreed with Abeyta .  United States v 38 Golden Eagles , 649 F. Supp 269 (D. Nev. 1986), aff’d, 829 F.2d 41 (9 ^th Cir. 1987). In reviewing defendant’s challenge to the forfeiture proceeding, the court noted that while defendant did not apply for a permit to possess the eagle parts, he nonetheless had standing to attack the facial constitutionality of the statute. Relying on the three-part test enunciated by the Ninth Circuit in Callahan v Woods , 736 F.2d 1269 (9 ^th Cir. 1984), the court held that the Act indeed had a profound impact on the practice of defendant’s religion. Since eagle parts are relatively scarce and a lengthy time period is required to obtain the parts through the permitting process, this substantially burdens defendant’s free exercise. However, the court recognized that the government established a compelling interest in protecting the eagle from potential extinction. With regard to the third component, the court found that excepting individuals from the permitting process would have a deleterious effect on the eagle population. Moreover, the court found the permit process to be a reasonable means to regulate the process.

Of particular interest with regard to the permit process is the holding in U.S. v. Gonzales , 957 F.Supp. 1225 (D.N.M.,1997). In Gonzales , defendant failed to comply with the permit process because of the secretive nature of the Indian religious ceremony in which he was to take part. Defendant testified that the requirement to list the specific ceremony pursuant to 50 C.F.R. §§ 22.22(a)(4) and (6) were unduly intrusive into his religious practices. While the government contended that the defendant lacked standing since he failed to apply for a permit, the court held that defendant could raise a facial challenge to the permit process. In employing the Callahan test to review defendant’s RFRA challenge, the court held that the requirement to list the specific ceremony was not the least restrictive means to effectuate the government’s compelling interest.

Requiring each applicant to include the name of the religious ceremony in which the eagle will be used and religious elder certification may provide some additional indicia of reliability that the eagle will be used in a Native American religious ceremony, but those requirements are not the least restrictive means by which the government can protect its interest. Instead of imposing those two very intrusive requirements, the government can simply require each applicant to swear under penalty of criminal prosecution for perjury that the applicant will use the eagle in a Native American religious ceremony in which the applicant is qualified to participate.

While courts have generally regarded the BGEPA to impose substantial burdens on religious practices, they have not been willing to extend exceptions. By employing the Callahan test courts have found individualized exceptions would undermine the purposes of the BGEPA.

In United States v. Jim , 888 F. Supp. 1058 (D. Or. 1995), the defendant, an enrolled member of the Yakama Nation and a practitioner of two Native American religions, asserted that he killed several eagles because he needed "clean birds" – birds that had not been electrocuted, poisoned, or were otherwise "contaminated." Id. at --. Jim indicated that, under his beliefs, the "Creator" allowed Jim to kill twelve eagles a year.

In applying the Callahan test, the court found through testimony that no one had been issued a permit to kill any eagles in Oregon within the last ten years. Thus, denying Jim the ability to kill eagles would indeed be a substantial burden to his religious practices. The court distinguished Abeyta , finding that the government provided sufficient evidence that the golden eagle in Oregon could not withstand Jim’s asserted hunting needs. Hence, the court found that the government had sufficiently established its compelling interest in protecting the golden eagle.

The court finally examined whether the government employed the least restrictive means in achieving its compelling interest. Specifically, the court examined whether the government met its burden in not exempting Jim from the purview of the statute. The court held that the permit system provided the least restrictive means under which those Native Americans who require eagles for religious purposes could obtain eagles. Allowing an exception for defendant and others who subscribe to his beliefs would decimate the golden eagle population. Further, allowing defendant or anyone to kill eagles would also undermine the effectiveness of the law by leading the public to believe killing eagles was lawful.

The Eighth Circuit recently affirmed this reasoning that individualized exceptions under the BGEPA would contravene the primary purposes of the act. In United States v. Oliver , 255 F.3d 588 (8 ^th Cir. 2001), the court held that allowing a "one-man exception" to the permitting process would undermine the efforts under the statute. Indeed, the court stated that there are no safeguards to prevent similarly situated individuals from also asserting a religious entitlement to kill eagles, thereby destroying the population. The court also dismissed defendant’s argument that a proposal to remove the eagle from the endangered and threatened species list belies the government’s compelling interest. Since this action has not been taken, the court would not entertain an argument more suitable to the Fish and Wildlife Service or Congress.

In one of the most recent cases to construe free exercise of religion under the Eagle Act, the Tenth Circuit found no violation of religious exercise where a member of a Canadian tribe was denied a permit to possess eagle parts. In United States v. Antoine , 318 F.3d 919 (9th Cir. 2003), defendant, a member of the Cowichan Band of the Salish Indian Tribe in British Columbia, obtained dead eagles in Canada and brought them to the U.S. where he swapped them for money and goods. He claimed that these exchanges were part of the native custom of "potlach," which had religious significance to defendant. On appeal, defendant contended that the recent proposal to delist the eagle from the Endangered Species List lessened the government’s claim of a compelling interest. The Court disagreed, finding the weight of the proposed delisting tenuous in comparison to an issued final rule. Further, the Court found that while, in theory, such a delisting could change the compelling nature of the government’s interest, "the government cannot reasonably be expected to relitigate the issue with every increase in the eagle population." Id. at --. In essence, the court found that defendant was properly excluded under the "secular" portion of the statute; that is, the statute when applied to defendant is neutral with respect to religion.

While the court employed the Callahan test to defeat defendant's claim, the reasoning was rooted in his status as a non-federally recognized tribe member. In aligning itself with the Eleventh Circuit in  Hardman (On Rehearing En Banc) , 2002 WL 1790584, and Gibson v. Babbitt , 223 F.3d 1256 (11th Cir. 2001), infra, the court found that restricting possession of eagle parts to federally recognized tribe members was the least restrictive means of serving the government’s compelling interest. The court, however, disagreed with the Eleventh Circuit’s reasoning in the rehearing opinion in Hardman with regard to the government proving its compelling interest.

Although it [the Hardman Court] recognized a compelling interest in "preserving Native American culture and religion" and "fulfilling trust obligations to Native Americans," id. at 1129, it held, on a record no less extensive than ours, that the government had failed to prove that exclusion of nonmembers was the least restrictive means to address the interest. . . We do not believe RFRA requires the government to make the showing the Tenth Circuit demands of it. . . If the government extended eligibility, every permit issued to a nonmember would be one fewer issued to a member. This is the inescapable result of a demand that exceeds a fixed supply.

Again, the court rested its decision on the lack of any facially discriminatory language in the statute combined with the stark realities of the eagle distribution system through the federal repository.  It was defendant's membership in a foreign tribe and not a "federally recognized tribe" that weighed against his RFRA argument. 

C. Formerly Recognized Tribes

It is evident that the lengthy permit process and relatively limited supply of eagle parts has affected courts’ decisions. For the most part, the requirement that one must be a member of a federally recognized tribe has been strictly upheld. However, the initial opinion by the Tenth Circuit in In the Matter of Saenz , 2001 WL 892631, No. 00-2166, August 8, 2001, 10 ^th Cir., vac’d in U.S. v. Hardman , 260 F.3d 1199 (10 ^th Cir. 2001), determined that this requirement violates the Religious Freedom Restoration Act (RFRA).

Specifically, in In the Matter of Saenz , 2001 WL 892631, No. 00-2166 (10 ^th Cir. filed August 8, 2001), the court was presented with the issue of whether the member of a previously recognized Indian tribe is entitled to have his government-seized eagle feathers returned to him. Defendant was descended from the Chiricahua tribe of Apache Indians. The Chiricahua tribe is not a federally recognized tribe and has not been federally-recognized since at least 1886.

The government argued that limiting the permit process to obtain eagle parts to federally recognized tribes fulfills a pre-existing trust obligation to those tribes. The government’s conclusion that the number of those American who identify themselves as having Native American ancestry in relation to those who are members of federally recognized tribes would swamp the permit process was speculative to the court. Significantly, the court noted that the permit process operated for eighteen years without the requirement, and the government provided no evidence that during this time the system was overwhelmed.

Finally, the court addressed the government’s argument that opening the permit process to all Native Americans would create an impermissible classification based on race, and would create an administratively unfeasible operation. Again, the court described the historic special relationship between the government and the "quasi-sovereign tribal entities." The court was unwilling to deny a religious need based on what it termed a "political" status. This defining of Native Americans as occupying a political, rather than racial or ethnic status, has enabled courts to extend special treatment and services to Native Americans.

On August 5, 2002, the Tenth Circuit issued a consolidated opinion that addressed the vacated cases in the Hardman rehearing order.  Hardman (On Rehearing En Banc), 2002 WL 1790584.  While all three cases on appeal implicated religious challenges to the BGEPA under the Religious Freedom Restoration Act (RFRA), the court distinguished the record in  Saenz from the other two cases.  Since this case involved a motion for return of the seized eagle feathers and not a criminal prosecution, the court found the record sufficient to evaluate whether the government established the requisite showing of compelling interests effected through the least restrictive means. 

The government alleged an interest in preserving both the eagle population and Native American culture.  According to the government, expanding the pool of applicants to sincere religious practitioners who were not members of federally recognized tribes would threaten the eagle population and invalidate existing trust obligations of the federal government to Native American tribes.  The court disagreed with the government's assertions, finding the record evidence presented insufficient to support this claim.  Indeed, the court noted that, as long as the total number of permits stayed constant, this would have no effect on the eagle population.  Id. at --.  At worst, this would instead result in a further delay to applicants for permits.  Further, the alleged threat this would incur to Native American culture was speculative.  Opening the permit system to non-Native practitioners of Indian faiths could instead foster a broader interest and respect for Indian culture.  Id. at --.  The court noted that it was incumbent upon the government to present greater evidence of the effects than simply the number of federally-recognized Native Americans in relation to those Americans who identify themselves as having Native American ancestry.  Indeed, observed the court, this would be akin to comparing the number of Catholics to the overall number of Irish Americans in the U.S.  Id. at --. 

The court carefully then noted that the opinion does not express whether distributing eagles to non-tribal practitioners would foster or inhibit the compelling interest; the government just failed to build a record to demonstrate the alleged harm.  In the concurring opinion by Judge Murphy, he expresses concern that the dicta by the court on the Saenz case could misdirect the district court on remand in the Hardman and Wilgus remands.  While agreeing with the majority that the district court appropriately sustained Saenz's RFRA claim, Judge Murphy opines that the majority failed to view the regulatory scheme of the BGEPA as a whole, and, when viewing the system in its totality, the government advanced compelling means.  The record, however, was devoid of sufficient evidence that the least restrictive means have been employed to advance these interests.

One court found that an unduly burdensome system of federal recognition can also infringe on religious practices.  An unpublished Eastern District of California case held that actions by the Bureau of Indian affairs in failing to certify Indian status were arbitrary and capricious . Coyote v. U.S. Fish and Wildlife Service , 1994 WL1867790 (E.D. Cal.) (not reported in F.Supp.). In Coyote , the Bureau of Indian Affairs refused to certify that Coyote was an Indian for purposes of obtaining eagle parts because he was not a member of a federally recognized tribe. Mr. Coyote maintained without dispute from the BIA that he is 11/16 Mono/Choinumni Indian. He further maintained that the BIA has acknowledged that both the Mono's and Choinumni's are tribal Indian groups within California and descents of aboriginal California tribes indigenous to the San Joaquin Valley.

Defendant alleged that the USFWS’s actions were arbitrary and capricious. The court noted that the BIA refused to provide a certification that Plaintiff is an Indian for purposes of 50 C.F.R. § 22.22 "because Plaintiff is not enrolled as a member of a reservation or rancheria, i.e., not affiliated with a federally recognized reservation or rancheria." The USFWS rejected the application on the basis that it was incomplete without the BIA Certification, not that Coyote’s tribal ceremonies were invalid.

The court held that "the fact of federal recognition of an applicant's tribe is, at best, only one indicia of whether or not the issuance of an Eagle Feather Permit is appropriate and necessary to ‘continue ancient customs and ceremonies that are of deep religious and emotional significance.’" Coyote at --. Thus, the court agreed with the plaintiff that this interpretation for certification was indeed arbitrary and capricious. The BIA was ordered to certify plaintiff’s status as a member of a federally-recognized tribe and USFWS was authorized to process his application in the normal course of operation.

Courts have found significant whether the eagle is declassified to threatened or non-endangered status, as that impinges on the compelling interest portion of the RFRA analysis. See, Wilgus , infra and Abeyta , supra Currently, the bald eagle receives protection under the Endangered Species Act. (See, Section 6, infra). The proposed delisting of the eagle provides another argument in free exercise claims that the government interest in protecting the eagles weighed against sacred practices is diminished.

D. The Department of the Interior Succumbs to Political Pressure

In 1999, members of the Hopi Tribe in Arizona approached the National Park Service, requesting that it be allowed to remove golden eaglets from the Wupatki National Monument for religious purposes. In doing so, not only did the Park Service disregard the mandates of the BGEPA, but also park regulations prohibiting the taking of wildlife specimens on park land. It is evident from the text of the proposed rule, that the political climate demanded a greater sensitivity toward Indian religious practices. Indeed, the description of the ritualistic killing of young eagles is described in almost ethereal terms:

The practice of eagle gathering is at the heart of the Hopi religious ceremonial cycle and the Hopi culture. The eagle serves as the link between the spiritual world and the physical world of the Hopi, a connection that embodies the very essence of Hopi spirituality and belief. Golden eaglets are gathered from nests soon after birth and are kept and raised to fledglings in Hopi villages. Later, during the Niman Kachina ceremony, the golden eagles are sacrificed and ``sent'' to their spiritual home. The eagles' feathers are subsequently used in all Hopi religious ceremonies such as the Kachina, Flute, and Snake ceremonies. The cyclical relationship between the eagle and the Hopi is renewed annually through the practice of eaglet gathering, sustaining the connection between the spiritual and physical worlds for the next generation of Hopi.

66 F.R. 6516 (January 22, 2001). Relying on the language of the BGEPA the Park Service found that the Eagle Act affords the taking of eagles under circumscribed situations.

The Park Service relied on the Callahan test codified in the Religious Freedom Restoration Act. In doing so, the Service stated that the Hopis are substantially burdened by this restriction on their religious practice. Noting that this infringement is allowable if the government could justify the restriction by asserting compelling interests, the Service concluded that by virtue of its operation to protect wildlife, the NPS has a compelling interest. The question arose with whether the prohibition was the least restrictive means of implementing this purpose. Interestingly, after engaging in the RFRA analysis the NPS found it did not have to reach that question, as it has the ultimate authority to decide access to national park services.

We do not have to reach these questions here, however, if the NPS has the authority to, and has decided to accommodate, the Hopi Tribe's religious ceremonial collection of golden eaglets at Wupatki National Monument. Plainly the RFRA encourages, and does not prohibit, such accommodation.

It appears the NPS gave lip service to the RFRA analysis and, instead, issued a self-directed mandate. The policy behind the American Indian Religious Freedom Restoration Act (AIRFA) further supported this decision.

The American Indian Religious Freedom Act (AIRFA). This Act, enacted in 1978, declares 'the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express and exercise the[ir] traditional religions * * * including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.' 42 U.S.C. 1996. The second section of AIRFA, not codified in the U.S. Code, requires the President to direct the various federal agencies responsible for administering relevant laws to `evaluate their policies and procedures in consultation with native traditional religious leaders in order to determine appropriate changes necessary to protect and preserve Native American religious cultural rights and practices . . .'

Perhaps the real reason the Park Service created this exception for the Hopis can be explained by an executive order. In 1994, President Clinton signed an executive order mandating that federal agencies make all reasonable accommodations to ensure that Native Americans religious practices were not burdened. This Order also directed federal agencies to work cooperatively with tribal entities to ensure the timely collection and distribution of scarce eagle parts needed for Indian religious ceremonies. 59 F.R. 22953 (April 29, 1994) . While there is no question that the current permit system is fraught with delays and difficulties, it has become evident that the BGEPA is vulnerable to political whim.

Different perspectives on this issue of Hopi eaglet sacrifice have surfaced. In an recent Audubon Magazine article, Ted Williams, describes the ritualistic killing of the eaglets:

The eaglets are collected in early spring, then tethered to the tops of adobe buildings, where they are fed, given children's toys, and told how honored they should feel to be chosen for the ritual. In mid-July, they are ritualistically smothered in cornmeal or strangled by hand so that they may travel to the other world and explain, among other things, how well they were treated by the tribe. But the eagles may be delivering a different message. Occasionally their eyelids are sewn shut, and straps around their feet sometimes wear away the skin and sinew.

Golden Eagle for the Gods , Audubon Magazine, at --. According to Williams, the overgrazing of the reservation land has limited the natural food supply of the eagles. The ritualistic killing of the eagles (which often includes both eaglets in the nest so as not to be an "affront" to the gods) has increased the pressures already facing the population. Id. at --.

In contrast, Boradiansky , describes the sacred nature of the ritual and Hopi’s veneration of golden eagles:

An exception to this general rule is the Hopi practice of taking eaglets from nests, which are adopted into the tribe, fed by hand, and eventually sacrificed. J. Hughes, American Indian Ecology 36 (1983); H. Tyler, Pueblo Birds And Myths 52-55 (1979). According to Mr. Keith C. Frederick, of the Department of the Interior, the Hopis hold the only permit ever granted under the religious exception to the Eagle Protection Act to take live eagles. The permit is issued in the name of the tribal chairman, for twelve golden eaglets annually. The permit, first issued in 1986, is reviewed annually. Mr. Frederick stated that the taking of twelve eaglets is equivalent to taking approximately six adults, since the mortality rate is about fifty percent. Interview with Mr. K.C. Frederick, Asst. Special Agent in Charge, Division of Law Enforcement, Department of the Interior, Regional Office in Albuquerque (Oct. 1989) [footnotes omitted].

Id., at --. The golden eagle remains a non-threatened species in all fifty states, and receives protection only under the BGEPA. The continued status of the golden eagle may depend on the legislative and judicial importance attached to the species.

E. The Indian Trust Doctrine – The Next Challenge to the BGEPA?

While the issue of treaty abrogation has been essentially laid to rest, the government’s special obligation to the Native American community survives. One author suggests that the next legal challenge to the Eagle Act may derive from a challenge based on the federal government’s special obligation to Indian communities. Commonly called the "Trust Doctrine," this idea stems from the notion that "Congress, the Judiciary, and the Executive Branch each have a fiduciary obligation to Native Americans that governs the federal government's standards of conduct toward tribal resources and culture."  Perkins , supra.  While the Trust Doctrine does not derive from a legally binding source like a treaty, Perkins suggests that recent federal pronouncements demonstrate a greater trend to honor Indian culture through legislative and judicial policy. In fact, it is speculated that former President Clinton’s 1994 executive order concerning the need for greater facilitation by government agencies in expediting Indian religious permits is a step towards recognizing the trust doctrine. See, 59 F.R. 22953 (April 29, 1994).   Perkins noted that the two previous administrations demonstrated a focus on the recognition of the trust duty owed by the federal government to Indian tribes. ("President Clinton articulated an interest in reform of government practices in order to better accommodate Native American culture in a 1994 meeting of Native American and Alaskan tribal leaders at the White House." Perkins , supra, at --.)

With the trend toward increased awareness of Indian culture by the federal government, it is evident that:

[T]he trust doctrine may now represent the most formidable argument available for a successful challenge to the Act. Although shifts in Native American policy have degraded the trust obligation, the notion of a governmental duty to protect Native American culture and religion persists. Recent executive and congressional emphasis on the trust obligation indicates the intent to restore the enhanced protections to which Native Americans are entitled [footnotes omitted].

Perkins , supra, at --.

Further, the Trust Doctrine has also been employed as substantive argument against the current eagle permit system. The fiduciary relationship or trust obligation can be likewise applied to the preservation of Native American religious practices.

Thus, if the federal government fails to protect Native American religious freedom, then it violates its legal obligation to all Indian tribes. Under the Trust Doctrine, the federal government has the authority to affirmatively protect Native American religion through legislation.

De Meo , supra. 

Recent legislation has been proposed to expand the affirmative duty of the federal government under its trust obligation:

The Native American Free Exercise of Religion Act ("NAFERA"), which is currently before Congress, proposes to create a judicially enforceable policy to preserve Native American rights to exercise their traditional religion, and that would allow, among other things, Native American religious use of eagles and eagle parts. [footnotes omitted]

De Meo , supra, at --. NAFERA will affirmatively protect the use of eagle feathers by Native Americans in addition to other cultural and religious practices:

In reaction to inadequate legal protections for Native American religion, Senator Daniel K. Inouye, a Democrat from Hawaii, introduced a bill to Congress, the Native American Free Exercise of Religion Act of 1993 (NAFERA), to amend the AIRFA and strengthen First Amendment religious rights for Native Americans . . . In its substantive provisions, the NAFERA would protect . . . 4) religious use of eagles, other animals, and plants. These rights would be enforceable in federal district court by an aggrieved party against the United States for equitable or other relief.

De Meo , supra, at --. The section pertaining to eagle parts "directs the FWS to develop a plan to ensure prompt disbursement of available eagles to applicants, allocate sufficient numbers of eagles, when available, for demonstrated Native American religious needs, and simplify and shorten the permit process for religious use of eagles" and "directs the FWS to consider decentralizing the eagle disbursement process." Id., at --.

Perhaps the most controversial portion of the proposed legislation concerns the retention of eagles discovered on tribal lands.

Lastly, section 401 permits eagles discovered on tribal lands to be distributed by tribes, in accordance with tribal religious customs, provided that the tribes establish procedures by law or custom to issue tribal permits and distribute eagles for religious use. Tribes that establish such procedures would prepare and submit an annual report to the FWS summarizing their actions.

De Meo , supra, at --. Whether this legislation has an impact on the distribution of eagle feathers to Native Americans or represents political rhetoric remains to be seen. This proposed solution to distribution of eagle feathers to Native Americans may alleviate some of the burden now placed on the National Repository. The issue of tribal recognition by the federal government would also arise under this legislation unless changes were made to the Regulations. While this and other policy before Congress demonstrates a greater solicitude toward Indian nations, the same cannot be said of non-Native American use of eagle parts.

V. Challenges to the BGEPA by Non-Native Americans 

Non-Native American practitioners of Indian religions have asserted their right to possess eagle parts for use in religious rituals. Under the direct language of the BGEPA, only those groups described in the exception for possession are entitled to possess eagle parts (i.e., researchers, museums, and Indians). Thus, those non-Native Americans who do not fit within the listed criteria are not eligible to possess eagles under the statute and accompanying regulations. As eagle parts are central to many religious practices of Indian religions, non-Native Americans have raised challenges to the BGEPA based on violations of both free exercise of religion and the Establishment Clause.

A. Free Exercise Challenges

The BGEPA provides that eagles or their parts may be obtained by permit for the religious purposes of Indian tribes . The Federal Regulations go further by specifically stating that:

We will issue a permit only to members of Indian entities recognized and eligible to receive services from the United States Bureau of Indian Affairs listed under 25 U.S.C. 479a-1 engaged in religious activities who satisfy all the issuance criteria under this section.

50 C.F.R. 22.22 .  Courts have for the most part denied access to the permit system to non-Native Americans regardless of whether those individuals engage in sincere Indian practices. At first blush, this would seem a patent infringement of religious exercise. However, courts have rationalized this exception by espousing that Indian status is based on a political classification. (See, 25 U.S.C. § 479a-1 for pdf. file list of federally recognized tribes (135 KB)).

In United States v. Lundquist , 932 F.Supp. 1237 (D. Oregon 1996), defendant was a non-Native American who practiced a Native American religion. As part of his religious practices, defendant required the use of eagle parts to perform certain rituals. While defendant claimed he was descended from Cherokee and Lakota Sioux Indian grandparents, he was not an enrolled member of any tribe. The eagle parts in question were given to defendant for participating in several tribal ceremonies.

Defendant challenged his convictions under the newly enacted Religious Freedom Restoration Act (RFFA). The court employed the three-part analysis under Callahan to determine whether the BGEPA violates RFRA. While the government challenged the credibility of defendant’s religious beliefs, the court refused to impugn his sincerity of beliefs. Instead, the court held that defendant must simply show that the religious practices at issue are central to his religious beliefs. Having established that defendant’s free exercise of religion was substantially burdened, the court then turned its attention to the government’s compelling reason to justify this burden. Defendant himself did not dispute the need to protect both bald and golden eagles. Instead, defendant contended that, under Callahan , the government failed to show that there is a strong nexus between the BGEPA and the asserted government interest. Specifically, defendant attempted to distinguish the compelling interest of preventing the killing of eagles rather than the mere possession of eagle feathers. The court was unconvinced by the distinction and found that the interest in protecting the eagle was served by discouraging the demand for eagle parts, including feathers.

Finally, the court analyzed whether the government’s method for implementing its compelling interest was achieved through the least restrictive means. Defendant suggested that amending the permit process to include non-Native Americans, or subjecting him to a civil penalty instead of a criminal sentence would be less restrictive than the means employed by the government. The court found that the government provided ample evidence that excepting defendant from the permit requirements would undermine both the government’s interest in protecting a species as well as the interest in preserving Native American culture and religion based on the limited supply of eagle feathers and the high demand among Native Americans.

In general, there has been strict application of the requirement under the Federal Regulations that one must be a member of a federally recognized Indian Tribe. Employing the RFRA three part test, the court in Gibson v Babbitt , 223 F.3d 1256 (11 ^th Cir. 2000), held that the government demonstrated a compelling interest in preserving the limited supply of bald and golden eagle parts for those members of federally recognized Indian tribes. The court found the permit process the least restrictive means of effectuating its interest in fulfilling treaty obligations to recognized tribes, preserving Native American cultures, and protecting two endangered species. The court was particularly swayed by testimony showing that defendant represents a substantial pool of individuals seeking eagle parts who are not members of federally recognized tribes. In light of the demand and delays present in the existing system for distribution of eagle permits, the court found the government’s interest justified in limiting permits to recognized tribal members.

B. Establishment Clause Violations

Challenges to the BGEPA also stem from asserted violations of the Establishment Clause. In Rupert v. Director of the United States Fish and Wildlife Service , 957 F.2d 32 (1 ^st Cir. 1992), the First Circuit was presented with the issue of whether RFRA enables a non-Native American practitioner of Indian religion to obtain eagle parts for religious purposes and, alternatively, whether the BGEPA violates the Establishment Clause of the First Amendment. The court held that such an exemption is not violative of the First Amendment because it serves two critical government goals: conserving the dwindling eagle population and protecting Native American culture and religion.

Rupert was the self-proclaimed pastor of what was termed an "all-race" church that follows Native American religious customs. While the uncontroverted evidence showed that Rupert is not descended from any Native American tribe, Rupert did apply to the USFWS to have his religious sect recognized as a "tribe" for purposes of the permit requirements under 25 CFR § 83.7 . Rupert’s request was ultimately denied.

Rupert challenged the BGEPA as a violation of the Establishment Clause because the regulation was not administered even-handedly. Since all who seek to use feathers for religious purposes are not granted permits, the system operates in a manner that impermissibly favors or establishes one religious group, according to appellant. Appellant couched his argument in terms of neutrality, arguing that Native Americans are given a denomination preference in the use of eagle feathers.

The court first noted that the proper vehicle for assessing neutrality is under an equal protection framework. This is further complicated by the fact that Native Americans occupy a special status in American jurisprudence. Normally, laws that exhibit denominational preferences must be reviewed under a strict scrutiny standard. However, because of the special "guardian-ward" relationship between semi-sovereign tribes and the federal government, the standard of review to be applied is not strict scrutiny, but whether the special treatment of Indians is rationally related to the regulation at hand. Indeed, rather than a racial or denominational preference, Indian status is political in nature according to the court. Consequently, the court had no difficulty in finding the BGEPA rationally related to the government interests at hand; to wit, the protection of bald and golden eagles and the preservation of Native American religious culture. The court further noted that the "fit" between the interests served and the law is so close, that it might even withstand a strict scrutiny analysis.

In one of the cases intially vacated by the Tenth Circuit under the Hardman order, the court employed a unique analysis in determining both free exercise and Establishment Clause violations. In U.S. v. Wilgus , 2001 U.S. App. LEXIS 17700; 32 ELR 20031; 2001 Colo. J. C.A.R. 3976 (10 ^th Cir. 2001), vac’d in U.S. v. Hardman , 260 F.3d 1199 (10 ^th Cir. 2001), Wilgus was not of Native-American ancestry nor did he claim he was an official member of a federally recognized tribe. Instead, Wilgus claimed he was a strict adherent to a Native American faith that used eagle feathers ceremonially.

Under a free exercise challenge, the court noted that a law that is neutral on its face and of general applicability will pass constitutional muster even if it incidentally burdens religious practices. Employing this analysis, the court held that the Free Exercise Clause only proscribes laws that prohibit the free exercise of religion. Id. Thus, a law that is neutral will not have as its object or purpose to restrict the practice of religion. In reviewing the BGEPA, the court found that the object of the Indian religious exception to enable members of federally recognized tribes to practice traditional religious rituals. Indeed, the court found that "[s]ince the object of the exemption in the BGEPA is to accommodate the religious exercise of members of federally recognized tribes, and there is no evidence that the object or purpose of the BGEPA is to burden anyone’s religious practice, we find the Act, and its exceptions, neutral." Id. at --. The court further noted that even if a broader definition of neutrality is used, the result remains the same because of the unique status of the Indian in federal affairs. For the second part of the test, general applicability, the court observed that the BGEPA is based on a political status and not an impermissible characteristic.

With regard to the Establishment Clause challenge, neutrality for purposes of the Establishment Clause prohibits the "respecting" of religion by the government. In other words, the government is prohibited from both burdening and benefiting a religious group by effecting a denominational preference. The court again held that the BGEPA does not evince a denominational or religious preference, but rather excepts a political group (e.g., Indians). Moreover, the court noted the responsibility of the government to preserve Indian culture and religion by enacting specialized exceptions under the law. Thus, the law survives a rational relationship scrutiny.

As is evidenced by the Tenth Circuit’s decision to vacate this and the two other cases in order to resolve the issues en banc, the majority’s opinion was met with dissent. Judge Baldock wrote that the court ignored the heightened standard mandated by RFRA. Citing cases that require the three-part RFRA test whenever a free exercise challenge is raised, Judge Baldock felt the majority ignored the statute’s plain language and purpose. In reviewing this case under RFRA, Judge Baldock opined that the BGEPA does substantially burden religious practices. However, whether the statute employs the least restrictive means to achieve its purpose is a factual determination that the record does not resolve. The judge would have remanded the case for a determination under the RFRA test.

In the recently issued opinion by the Tenth Circuit for Wilgus, the court again remanded the cause for further factfinding.  Hardman (On Rehearing En Banc), 2002 WL 1790584.  While Wilgus failed to apply for a permit, the court found he had sufficient standing to challenge both the statutory and regulatory scheme where such application would have been futile.  Moreover, the court decided it would sua sponte consider the challenge under RFRA, even where it was not preserved for appeal, as it was "antecedent to . . . and ultimately dispositive of the dispute."  Id. at --.  Aligning itself with the "safe harbor" rule of Employment Division v. Smith, 494 U.S. 872 (1990), the court disposed of the establishment clause challenge, finding that the right of free exercise in this case did not relieve the appellant to comply with a valid and neutral law of general applicability.  Thus, the court applied the RFRA-based compelling interest-least restrictive means test to the government's asserted interests of protecting eagles and preserving Native American culture.

The court opined that such an analysis reflects a balance of the compelling interest and least restrictive means, and whether the government has properly set these two competing interests in equipoise.  Ultimately, the court decided that, while the interests asserted were compelling, the government failed to demonstrate that the least restrictive means were employed to effect those interests.  Thus, the Hardman (MBTA conviction) and Wilgus cases were remanded for further development of a record related to the least restrictive means of the permit system.

In all religious challenges before the courts, it is both the eagle as a symbol of the United States and as a protected species that generates the compelling interest. While the BGEPA serves as independent protection in addition to the Endangered Species Act, the status of the eagle under the ESA has figured into court decisions. Indeed, the value of the eagle may depend on its continuing listing as a threatened species.

VI. Intersection of the BGEPA and the Endangered Species Act (ESA)

The bald eagle is unique in terms of wildlife law because it receives protection under several federal laws. Under the BGEPA, violators face possible fines up to $5,000, or imprisonment for not greater than one year. Under the Endangered Species Act of 1973, violators can receive civil penalties up to $25,000 for each violation and criminal sanctions of up to $25,000 fine or six months in prison, or both. 16 U.S.C. 1540(a), (b).

In order to successfully prosecute violators under the ESA, the government need not prove the defendant had knowledge that the species taken was listed as threatened or endangered. Rather, the government must only show that the defendant had knowledge of his actions constituting the taking. All protected species, equipment, and means of transportation involved in activities prohibited by the ESA are subject to forfeiture to the United States. [footnotes omitted]

De Meo , supra, at --.

The Eagle Act appears to require a greater intent than the ESA, with the necessity of proving willfulness or wanton disregard at the very least.

As is often the case with wildlife prosecutions, violators may be charged under several statutes, including the BGEPA and ESA. This double-edged attack on those who take eagles faces an uncertain future.

The potential delisting of the bald eagle from the list of endangered and threatened species may soon remove this additional layer of protection for the bald eagle. Notably, the golden eagle has never been listed as endangered or threatened and receives no protection under the ESA. Recently, proposals have been submitted to the US Fish and Wildlife Service targeting the bald eagle for removal from the list. As it stands currently, the eagle is listed as threatened in the lower contiguous 48 states. In 1994, a proposal was submitted to remove the recovering bald eagle from the ESA list.

The U.S. Fish and Wildlife Service (Service) is reviewing the status of the bald eagle (Haliaeetus leucocephalus) in preparation of a proposal to either reclassify or delist the species. Since 1978 when the species was listed throughout its range in the conterminous States, the bald eagle has increased in several important population parameters including the number of nesting pairs and production of young. The Service has approved five regional recovery plans for the bald eagle that collectively encompass the entire conterminous 48 States. The current population data indicate that the bald eagle has met the goals for reclassification from endangered to threatened in four of these five recovery plans.

59 FR 35584 (July 12, 1994).

In 1995, the USFWS reclassified the bald eagle from endangered to threatened in the lower 48 states. 60 FR 35999 (July 12, 1995). The bald eagle remained classified as threatened in Michigan, Minnesota, Wisconsin, Oregon, and Washington where it was previously listed as threatened. Id. No measures were taken for Alaska and Canada, as the eagle is not in jeopardy in those regions. Id.

Most recently, proposals have been submitted to remove the bald eagle from the ESA list entirely. In 1999, the Fish and Wildlife Service proposed complete delisting of the bald eagle:

We, the Fish and Wildlife Service (the Service), propose to remove bald eagle (Haliaeetus leucocephalus), from the List of Endangered and Threatened Wildlife in the lower 48 States of the United States. We propose this action because the available data indicate that this species has recovered . . . Removal of the bald eagle as a threatened species under the Act will not affect the protection provided under the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act, and many other state laws.

64 F.R. 36453 (July 6, 1999).

Ironically, it is the successful recovery efforts directed toward the bald eagle over several decades that may soon result in lessened protection under the law. Moreover, the proposed delisting of the bald eagle is often used as a legal argument against a compelling interest in a free exercise challenge. (See, Section 4, supra, where, as noted in Abeyta , the court found the fact the eagle was recovering in New Mexico a factor that weighed against the government’s compelling interest.)

VII. A Model for the BGEPA: the Migratory Bird Treaty Act

The BGEPA was modeled after the MBTA. Moon Lake , supra. Both acts proscribe the taking, possessing, selling, purchasing, bartering, selling, purchasing, bartering, transporting, exporting, importing, pursuing, shooting, shooting at, poisoning, wounding, killing, capturing, trapping, collecting, molesting, and disturbing. 16 U.S.C. § 668(a) ; 16 U.S.C. § 703 . The MBTA makes it illegal for anyone to possess any migratory bird, nest, egg, or part. 16 U.S.C. § 703 . There is no requirement that the possession be done "knowingly" or "with wanton disregard." Instead, the MBTA imposes strict liability.

The MBTA was enacted on July 3, 1918 and protects all migratory birds, including the eagle. 16 U.S.C. § 701 . There are several differences between the provisions of both statutes. First, the MBTA has a lessened degree of intent, or mens rea, required for conviction. The MBTA provides:

Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product.

16 U.S.C. § 703 . This section creates a strict liability standard for violations of the Act. Notably, this same standard does not exist in the MBTA’s progeny:

Although the provisions of the BGEPA were modeled from the MBTA, the BGEPA provides a different scheme of regulation: its criminal penalties are far more severe than those under the MBTA and it provides for civil penalties of up to $5,000 with no scienter requirement. Id. § 668(b). The fact that Congress chose to require proof of knowledge or wanton disregard under the BGEPA cannot require this court to read such a standard of proof into the MBTA . . .

Corbin Farm Service , supra, at --. Other provisions differ between the two statutes. As noted in Corbin Farm Service , the penalties under the BGEPA are more severe than those under the MBTA. Moreover, the Secretary of the Interior may, pursuant to established regulations, permit some the taking of migratory birds, and Alaska natives may take migratory birds for subsistence purposes under the MBTA. 16 U.S.C § 703--. The BGEPA, on the other hand, allows the taking of eagles under proscribed circumstances and provides a religious exception for Indians. 16 U.S.C. § 668(a).

It is useful to examine a case implicating the intent requirement under MBTA to illustrate the difference between it and the BGEPA. In U.S. v Smith , 29 F.3d 270 (7 ^th Cir. 1994), defendant was convicted of violating the Migratory Bird Treaty Act after she received eagle parts in the mail from a friend in Canada for a macram� project. During a controlled delivery of the package, defendant admitted to the federal agents that she knew the contents of the package and was aware that possession of eagle parts was illegal. On appeal, defendant argued that she lacked the requisite criminal intent, or scienter, for conviction and that the statute itself fails to describe the requisite level of intent required.

The court noted that no specific level of intent or scienter was written into the statute. On its face, the statute prohibits the possession of eagles or eagle parts. Regulatory statutes that protect public health, safety, and welfare routinely prohibit conduct based on strict liability. Most crimes, the court observed, simply require that one knowingly engage in the proscribed conduct. Defendant’s admissions were sufficient for conviction.

In fact, one can be prosecuted under either statute. While the BGEPA is a more specific statute, there is no requirement that the government must proceed under the Eagle Act instead of the MBTA. United States v. Mackie , 681 F.2d 1121 (9 ^th Cir. 1982). Nothing in the language of the BGEPA mandates prosecution for eagle offenses under the more recent BGEPA for eagle takings.

Not all courts are in agreement with this analysis, however.  In U.S. v. St. Pierre , 578 F.Supp. 1424 (D.C. S.D. 1983), the court held that the lack of a specific intent in the statute negated defendant's felony indictement.  In fact, the court specifically stated that since a felony conviction can be so deliterious to one' reputation, it would not sentence defendant to a felony where the statute was ambiguous as to intent.