Full Title Name:  Detailed Discussion of Indiana Great Ape Laws

I. INTRODUCTION

In Indiana, the importation, possession, and sale of certain species of apes are restricted under the state’sEndangered Species laws, the Department of Natural Resources’ (DNR) Exotic Mammal rules, or both. In some cases those laws and rules overlap in terms of the species of apes that are covered and the activities that are restricted; in other cases those laws and rules may actually conflict with each other. In most cases, those laws and rules are ambiguous and are open to various legal interpretations. It appears that because of their status as federally listed endangered species, it is illegal to transport, possess, and sell gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees in Indiana. DNR has the authority to permit the possession and transportation of those endangered apes for certain specified purposes, but the agency has not developed any regulations addressing the issue, nor does it issue any type of permits for primates. In addition to their status as federally listed endangered species, apes are also considered exotic mammals under the Fish and Wildlife Act. DNR regulates certain exotic mammals, including apes in the family Pongidae. Under the agency’s Exotic Mammal rules, it is generally illegal to take, possess, or sell those apes (though it is not clear which species of apes are included); however apes in the family Pongidae may be possessed and sold with a U.S. Department of Agriculture license; no state permits are required.

The following discussion begins with a general overview of the state statutes and regulations affecting Great Apes. It then applies those laws to the possession and use of apes for specific purposes, including their possession as pets, for scientific research, for commercial purposes, and in sanctuaries. Because of the issues highlighted throughout the discussion, there is a high degree of uncertainty in the interpretation and application of Indiana’s laws and regulations as applied to Great Apes. 

II. STATE STATUTES AND REGULATIONS

Indiana has a variety of laws affecting the importation, possession, sale, and treatment of apes. The state’s Fish and Wildlife Act restricts certain activities involving federally listed endangered species and authorizes the Department of Natural Resources to regulate endangered species and exotic mammals. The Agriculture and Animals Law creates the Board of Animal Health and directs the Board to regulate the importation of animals in order to protect the public health. Finally, the state’s general anti-cruelty laws include a few provisions which protect apes from some types of mistreatment.

A. FISH AND WILDLIFE ACT

There are two portions of Indiana’s Fish and Wildlife Act that apply to the importation, possession, and sale of apes. The state’s Endangered Species laws restrict activities involving federally listed endangered species and authorize the Department of Natural Resources (DNR) to permit some restricted activities (transportation and possession) for certain listed purposes. Chapter 2 of the Fish and Wildlife Act authorizes DNR to regulate exotic mammals. The state’s Endangered Species laws and DNR’s Exotic Mammal rules overlap in their applicability to Great Apes, and as explained below, may conflict and/or create some ambiguity in terms of what is - and is not - allowed in Indiana.

1. ENDANGERED SPECIES LAWS

Section 12 of Indiana’s Nongame and Endangered Species Conservation laws makes it illegal to possess, transport, or sell any species that appears on the U.S. list of endangered wildlife,[1] except as authorized elsewhere in those laws.[2] Gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees are federally listed endangered species so this law applies to those species of apes.[3] Section 15 of the Nongame and Endangered Species Conservation laws authorizes DNR’s Division of Fish and Wildlife (DFW) to permit – under the terms and conditions that the agency establishes[4] - the possession and transportation (but not sale) of any species that appears on the U.S. list of endangered species,[5] for scientific, zoological, or educational purposes, for propagation in captivity of the wildlife, or for other special purposes.[6] According to IN ST § 14-22-34-12(c), it is a Class A misdemeanor to sell an endangered ape in Indiana or to fail to procure - or violate the terms of - a permit (issued under IN ST § 14-22-34-15) to possess or transfer an endangered ape.[7]

The Division of Fish and Wildlife does not issue permits to transport or possess endangered apes (or any other primates).[8] In fact, DNR’s Fish and Wildlife regulations only address DFW’s own list of endangered native species,[9] which currently includes six species.[10] No other endangered species, whether foreign or native, are covered under DNR’s regulations.[11]

2. EXOTIC MAMMAL RULES

IN ST § 14-8-2-87 defines an “exotic mammal” as a species that is “not native to Indiana…and either a wild animal[12] or a feral animal other than a cat or dog.”[13] All gorillas, chimpanzees, bonobos, orangutans, and gibbons fall within the state’s definition of an exotic mammal. IN ST § 14-22-2-6 authorizes the Department of Natural Resources (DNR) to regulate exotic mammals within Indiana.[14] Accordingly, the Natural Resources Commission (NRC) and DNR have developed certain exotic mammal rules, which – in terms of their application to apes – apply only to those apes in the family Pongidae.

 Under 312 IAC 9-3-18.5, the following rules apply to apes in the family Pongidae:

(1) It is illegal to take (meaning harm, harass, or kill)[15] any ape in the Pongidae family.[16]

(2) Apes in the family Pongidae may be possessed without a DNR permit, but must be possessed under a U.S. Department of Agriculture (USDA) license.[17]

(3) Apes in the family Pongidae may be sold without a DNR permit, but must be sold under a USDA license.[18]

DNR does not issue permits for the possession of apes or any other primates,[19] so under this regulation only USDA licensed individuals or facilities may possess or sell apes in the family Pongidae.[20]

It is unclear whether 312 IAC 9-3-18.5 applies to orangutans. Virtually all taxonomic resources that recognize the family Pongidae include the following species within that family: gorillas, chimpanzees, bonobos, and orangutans. When DNR listed the family Pongidae in its Exotic Mammal rules, it also listed the following species in parentheses after the term Pongidae: chimpanzee, bonobo, and gorilla.[21] It is unclear whether DNR intentionally excluded orangutans from the list (and it meant its list of species to be exhaustive) or whether the Department’s failure to include orangutans was an administrative oversight (and it meant the list of species to be illustrative only).

The Exotic Mammal rules conflict with certain provisions of Indiana’s Endangered Species laws (see Section II(A)(1), above). First, IN ST § 14-22-34-12 prohibits the sale of any animal on the U.S. list of endangered species (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees) while 312 IAC 9-3-18.5 authorizes the sale of apes in the family Pongidae (gorillas, chimpanzees, bonobos, and possibly orangutans) by USDA licensees. Second, IN ST § 14-22-34-12 prohibits the possession of any animal on the U.S. list of endangered species (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees), but IN ST § 14-22-34-15 authorizes DNR’s Division of Fish and Wildlife to permit the possession of those animals for scientific, zoological, or educational purposes, for propagation in captivity of the wildlife, or for other special purposes. In contrast, DNR’s Exotic Mammal rules (312 IAC 9-3-18.5) authorize the possession of apes in the family Pongidae (gorillas, chimpanzees, bonobos, and possibly orangutans) by USDA licensees for any purpose (including strictly commercial purposes), rather than ensuring that endangered apes are possessed for only those purposes approved under IN ST § 14-22-34-15.

B. ANIMAL HEALTH RULES

The Indiana Board of Animal Health (BOAH) is responsible for preventing and eradicating diseases that affect the health of animals in Indiana.[22] To meet that end, the Board is authorized to prohibit or regulate the importation and sale of animals.[23] However, BOAH has not established any requirements (such as import permits or health certificates) for the importation of apes and other exotic or wild animals. The only applicable rule is Section 1-3-2 of the Board’s regulations, which makes it illegal to import any animal with a reportable disease (except as authorized by the state veterinarian).[24] Also, under IN ST § 15-17-15-1, it is illegal to sell any animal when the seller knows or suspects that the animal has an infectious or contagious disease (except as directed by the state veterinarian).[25]

C. STATE GENERAL ANTI-CRUELTY LAWS

Some of the state’s anti-cruelty laws,[26] which prohibit the neglect or mistreatment of animals,[27] apply to Great Apes in Indiana. Because all captive apes are necessarily dependent on their keepers, the provision requiring custodians to provide their animals with food and drink is particularly relevant.[28] Other portions of the law requiring keepers to provide shade from excessive heat, protection from excessive cold, and veterinary care only apply to dogs and cats, not apes or other exotic animals.

In addition, apes are sometimes trained or induced to perform for public entertainment by chemical, electrical, mechanical, and manual devices that inflict physical or psychological injuries. Under IN ST § 35-46-3-12, it is illegal to beat[29] a vertebrate animal. This section may protect apes from being physically abused in the course of training, to induce performances, or for other reasons, except that it does not prohibit “reasonable training or disciplinary techniques.”[30]

The state’s anti-cruelty laws do not apply to the following:

(1) Conduct not resulting in serious injury or illness to the animal that is incidental to exhibiting an animal for show, competition, or display, or that is incidental to transporting the animal for show, competition, or display;

(2) Conduct authorized by a local ordinance;

(3) Veterinary practices authorized by standards adopted under state law;

(4) Research facilities that are registered with the U.S. Department of Agriculture under the Federal Animal Welfare Act;

Any state or local law enforcement officer may enforce the state’s anti-cruelty laws and may impound an animal when there is probable cause to believe that a violation has occurred.[31] Anyone who fails to provide a captive ape with food or drink, or beats the animal, is guilty of either a Class A misdemeanor or a Class D felony, depending on the defendant’s past history of similar convictions and other aggravating factors.[32]

D. LOCAL LAWS

While the importation and possession of apes are regulated under both federal and state laws, county and municipal governments may also regulate animals within their jurisdictions.[33] Typically, those local ordinances either restrict the possession of animals, regulate activities involving animals, or set minimum standards for the housing and care of animals. The following examples demonstrate how some towns, cities, and counties in Indiana have addressed the possession of apes (and other wild or exotic animals) within their communities:

Griffith 10-1, 10-5: It is illegal to own, harbor, or possess any wild animal, including any ape, on one’s premises or in one’s vehicle for any purpose (including but not limited to: training, exhibition, or keeping as a pet). (Ord. No. 94-21, 6-14-94; Ord. No. 01-19, § II, 5-1-01); 10-7: No person may sponsor, promote, train a wild animal to participate in, contribute to the involvement of a wild animal in, or attend as a spectator any activity or event in which any wild animal engages in unnatural behavior or is wrestled, fought, mentally or physically harassed, or displayed in such a way that the animal is abused or stressed mentally or physically or is induced or encouraged to perform through the use of chemical, mechanical, electrical, or manual devices in a manner that will cause or is likely to cause physical injury or suffering. This prohibition applies to events and activities taking place on either public or private property, and applies regardless of the purpose of the event or activities and irrespective of whether or not a fee is charged to spectators. (Ord. No. 94-21, 6-14-94)  (This latter provision is included for educational purposes only. It appears to be superseded by Griffith’s more recent ban on the possession of wild animals for exhibition, or any other purpose, within the town limits.)

Knox 3-146: It is illegal to keep, maintain, or possess any apes within the city limits. The ban does not apply to zoos and circuses, subject to local zoning, licensing, sanitation, and safety requirements. (Ord. No. 923, 10-25-94)

South Bend 5-22: It is illegal to own, buy, sell, or offer for sale any animal that appears on the endangered species list designated by the U.S. Secretary of the Interior, pursuant to the Endangered Species Act, as amended. This list includes gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees. This ban does not apply to any institute of higher learning, zoo, or licensed circuses/carnival; 5-23: It is illegal to keep, maintain, or possess any ape within the city limits. This ban does not apply to certain institutions of higher learning, zoos, and circuses, subject to local zoning, licensing, sanitation, and safety requirements. (Ord. No. 7505-85, § 1; Ord. No. 8467-94, § 8; Ord. No. 8667-96, § IV)  

III. POSSESSORS OF GREAT APES

In the U.S., captive apes are generally possessed for use as pets, scientific research subjects, for exhibition or other commercial purposes, or they are retired and live in sanctuaries. The remainder of this section discusses how the state’s laws affect apes that are possessed for each of those purposes.

A. PETS

Although Indiana’s laws do not directly address the issue of keeping apes as pets, the practice appears to be illegal under the state’s Endangered Species laws (Section II(A)(1), above) and the Department of Natural Resources’ (DNR) Exotic Mammal rules (Section II(A)(2), above). As discussed above, IN ST § 14-22-34-12 outlaws the sale, possession, and transportation of federally listed endangered species (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees), but IN ST § 14-22-34-15, authorizes DNR’s Division of Wildlife to permit the possession of those animals for scientific, zoological, or educational purposes, for propagation in captivity of the wildlife, or for other special purposes. Unless the term “special purposes” includes the keeping of endangered animals as pets, IN ST § 14-22-34-15 does not authorize DNR to permit the keeping of those animals as pets. In any event, the agency does not issue permits to possess endangered apes, and it has not developed any regulations governing the possession of federally listed foreign endangered species. There is one exemption: animals that were possessed in Indiana on July 26, 1973 are not protected under the state’s Endangered Species laws, so the possession of endangered apes that were in the state prior to that date is not restricted under those laws. However, DNR’s Exotic Mammal rules (312 IAC 9-3-18.5) also prohibit the possession of apes in the family Pongidae (gorillas, chimpanzees, bonobos, and possibly orangutans) by anyone other than USDA-licensed exhibitors and animal dealers. Unlike the state’s Endangered Species laws, there is no exemption under the Exotic Mammal rules for apes in the family Pongidae that were possessed prior to a certain date. As read together, the Endangered Species laws and the Exotic Mammal rules leave virtually no legal avenue to possess gorillas, chimpanzees, bonobos, and possibly orangutans as pets. Gibbons (and possibly orangutans) that were possessed in Indiana prior to July 26, 1973 are not restricted under the Endangered Species laws or regulated under the Exotic Mammal rules.

The following list outlines what pet owners can and can’t do under the law:

Importation: Prohibited by IN ST § 14-22-34-12. See possible exemptions above.

Transportation: Prohibited by IN ST § 14-22-34-12. See possible exemptions above.

Possession: Prohibited by IN ST § 14-22-34-12 and 312 IAC 9-3-18.5. See possible exemptions above.

Sale: Prohibited by IN ST § 14-22-34-12. See possible exemptions above.

Breeding: Not addressed, but not possible for pet owners to do legally if possession of the animals is illegal.

B. ZOOS

See Section III(C), below.

C. EXHIBITORS (USDA CLASS C LICENSEES)

There are various types of exhibitors that display apes, including: zoos, circuses, wild animal parks, sanctuaries, and performing animal acts. The importation, possession, and sale of apes by exhibitors is governed by the state’s Endangered Species laws (Section II(A)(1), above) and the Department of Natural Resources’ (DNR) Exotic Mammal rules (Section II(A)(2), above). IN ST § 14-22-34-12 prohibits the sale, possession, and transportation of federally listed endangered species (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees). Under IN ST § 14-22-34-15, DNR’s Division of Wildlife may permit the possession of those animals for scientific, zoological, or educational purposes, for propagation in captivity of the wildlife, or for other special purposes. Currently, the agency does not issue permits to possess endangered apes, and it has not developed any regulations governing the possession of federally listed foreign endangered species. There is one exemption: animals that were possessed in Indiana on July 26, 1973 are not protected under the state’s Endangered Species laws, so the possession, sale, and exhibition of endangered apes that were in the state prior to that date is not restricted under those laws.  

DNR’s Exotic Mammal rules (312 IAC 9-3-18.5) authorize USDA-licensed exhibitors and animal dealers to possess and sell apes in the family Pongidae (gorillas, chimpanzees, bonobos, and possibly orangutans). No DNR permit is required and the possession, maintenance, and use of those apes are not regulated by the agency.  This rule may conflict with the state’s Endangered Species laws because it does not expressly restrict the purposes for which endangered apes may be possessed by USDA licensees, as required underIN ST § 14-22-34-15.[34] Also, IN ST § 14-22-34-12 prohibits the sale of federally listed endangered animals (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees) and IN ST § 14-22-34-15 does not authorize DNR to permit the sale of those animals.

Indiana has no minimum standards for the keeping of apes by exhibitors and few laws governing the treatment of those animals. DNR does have minimum standards for the housing, maintenance, and care of wild animals that are held under a permit;[35] however, those standards do not apply to wild/exotic animals that are possessed without a permit or to zoos, carnivals, circuses, nature centers, or animal dealers.[36] Under DNR’s Exotic Mammal rules (312 IAC 9-3-18.5), it is illegal to “take” (meaning harm, harass, or kill)[37]any ape in the family Pongidae (gorillas, chimpanzees, bonobos, and possibly orangutans). Also, the state’s general anti-cruelty laws require exhibitors to give their captive apes food and water and make it illegal to beat those animals in a manner that causes serious injury or illness (see Section II(C), above). In addition, all exotic animal exhibitors are regulated by the U.S. Department of Agriculture under the Federal Animal Welfare Act[38] and those facilities must comply with the federal minimum standards of care for primates.

D. SANCTUARIES

Indiana has no laws governing the establishment of exotic animal sanctuaries, nor are there any unique provisions within the state’s Endangered Species laws or DNR’s Exotic Mammal rules for such facilities. Sanctuaries are subject to the same laws as exhibitors. See Section III(C), above.

E. RESEARCH FACILITIES

The importation, possession, and sale of apes by research facilities is governed by the state’s Endangered Species laws (Section II(A)(1), above) and the Department of Natural Resources’ (DNR) Exotic Mammal rules (Section II(A)(2), above). IN ST § 14-22-34-12 prohibits the sale, possession, and transportation of federally listed endangered species (gorillas, bonobos, orangutans, gibbons, and wild populations of chimpanzees). Under IN ST § 14-22-34-15, DNR’s Division of Wildlife may permit the possession of those animals for scientific, zoological, or educational purposes, for propagation in captivity of the wildlife, or for other special purposes. Currently, the agency does not issue permits to possess endangered apes, and it has not developed any regulations governing the possession of federally listed foreign endangered species. As a result, it unclear how research facilities could legally possess endangered apes in Indiana. Captive born chimpanzees and apes that were possessed prior to July 26, 1973 are not restricted under the state’s Endangered Species laws. 

DNR’s Exotic Mammal rules (312 IAC 9-3-18.5) also prohibit the possession of apes in the family Pongidae (gorillas, chimpanzees, bonobos, and possibly orangutans), unless those animals are possessed with a license issued by the United States Department of Agriculture (USDA). Again, these rules are unclear as to their applicability to research facilities. Currently, the USDA issues three types of licenses (Class A, Class B, and Class C); those licenses authorize animal dealers and exhibitors to possess certain animals for commercial purposes. While the USDA does regulate research facilities, it does not issue licenses to those types of facilities. Also, DNR’s Exotic Mammal rules (312 IAC 9-3-18.5) make it illegal to “take” (meaning harm, harass, or kill)[39] any ape in the family Pongidae (gorillas, chimpanzees, bonobos, and possibly orangutans). There is no exception for apes that are used in scientific research.

IV. CONCLUSION

It is a bit challenging to summarize Indiana’s laws as they apply to the importation, possession, and sale of Great Apes. The State’s Endangered Species laws prohibit the transportation, possession, and sale of federally listed endangered species (gorillas, bonobos, orangutans, gibbons, and wild chimpanzees), but authorize DNR to permit the transportation and possession of those animals for certain listed purposes. DNR has not developed any regulations governing the possession of federally listed foreign endangered species, and does not issue permits for any species of primate. As a result, there appears to be no legal avenue to import or possess those endangered apes in Indiana. Also, DNR’s Exotic Mammal rules prohibit the possession or sale of apes in the family Pongidae, except with a USDA license. It is unclear which species of apes are actually covered by those rules, which activities DNR actually intended to allow, and whether DNR had the authority to allow the sale of endangered apes. As a result of these ambiguities and potential conflicts between the laws and regulations, legal questions involving the importation, possession, and sale of apes may have to be resolved by Indiana’s courts.