Opinion
No. CR99-0010.
March 9, 2000.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's February 1, 2000, motion to dismiss the indictment (docket number 26). The matter was referred to the undersigned United States Magistrate Judge for the issuance of a report and recommendation. It is recommended that the court find in favor of the government, and the defendant's motion be denied.
Background
Gerald William Oliver Jr. is a 32-year-old resident of Toledo, Iowa, and an enrolled member of the Rosebud Sioux Tribe, headquartered in Rosebud, South Dakota. Oliver has been an adherent of traditional Native American religious faith, participating in sweat purification ceremonies, healing ceremonies, sun dances, and other secret rituals. Most of these religious practices involve the use of eagle feathers and other eagle parts. In 1940, Congress passed the Bald and Golden Eagle Protection Act (BGEPA) which prohibits the taking, possession, purchase, sale, barter or transport of bald or golden eagles without a permit. 16 U.S.C. § 668(a). In 1967, the Secretary of the Interior listed the bald eagle as endangered.
In 1983, at age 15, the defendant applied for a permit from the Fish and Wildlife Service, and he requested two whole eagles ("I need the feathers, head, claws, and wing bones and tail feathers.") His application was approved and on January 14, 1985, the defendant received one adult golden eagle from the Wildlife repository in Pocatello, Idaho. He continues to hold a wildlife permit of indefinite duration, and during the last 15 years, he has received whole eagles, eagle feathers and other eagle parts from the Fish and Wildlife Service.
On November 16, 1999, the grand jury returned a two-count indictment against the defendant for violating 16 U.S.C. § 668(a): Count One alleges that in late January 1998 or early February 1998, the defendant knowingly possessed the head of an adult bald eagle, in violation of 16 U.S.C. § 668(a). Count Two alleges that in late January 1998 or early February 1998, the defendant knowingly possessed and transported an immature bald eagle, in violation of 16 U.S.C. § 668(a).
As an enrolled member of a Native American tribe, and as a permit holder, the defendant challenges the impact of BGEPA on religious freedom grounds. The BGEPA provides:
Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do as provided in this subchapter, shall knowingly, or with wanton disregard for the consequences of his act, take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time of in any manner, any bald eagle commonly known as the American Eagle, or any golden eagle, alive or dead, or any part, nest or egg thereof of the foregoing eagles, or whoever violates any permit or regulation issued pursuant to this subchapter, shall be fined not more than $5,000 or imprisoned not more than one year or both.
The BGEPA specifically allows the Secretary of the Interior to issue permits for the religious purposes of Indian tribes. 50 C.F.R. § 22.21, 22.22(c)(1), 22.23(c)(1). A properly enrolled Indian may receive bald and golden eagle carcasses, parts and feathers after applying for a permit and being approved by the Fish and Wildlife Service. According to 50 C.F.R. § 22.22, a permit application requires the following information:
1) The species and number of eagles requested;
2) The name of the tribe to which the applicant belongs;
3) The name of the tribal religious ceremony for which the eagles are required;
4) Certification from the Bureau of Indian Affairs of Indian status;
5) Certification from the applicant's religious group that the applicant is authorized to participate in ceremonies.
Analysis
The United States has adopted a policy under which enrolled members of federally-recognized Indian tribes may possess migratory bird parts, while non-members may not and may be prosecuted for such possession. United States v. Eagleboy, 200 F.3d 1137 (8th Cir. 1999). Special programs and exemptions for members of Indian tribes have long been upheld because of the federal government's special obligations toward Indians. Id.In this case, the defendant argues that his prosecution violates the Religious Freedom Restoration Act (RFRA) 42 U.S.C. § 2000bb which states that the government may substantially burden a person's exercise of religion only if it is in the furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling interest. 42 U.S.C. § 2000bb-1(b)12. The purpose of RFRA was to restore the "compelling interest test" ofSherbert v. Verner, 374 U.S. 398 (1963), to judge the constitutionality of regulation that burdens free exercise of religion. The compelling interest test was recently described as the most demanding test known to Constitutional law. City of Boerne v. Flores, 521 U.S. 507, 534 (1997). The determination of whether the BGEPA violates the defendant's rights under RFRA requires a three-step analysis. First, the defendant must show that the regulation of bald eagle parts substantially interferes with his free exercise of religious beliefs. If the defendant meets that burden, the government must then show that the BGEPA serves a compelling government interest. Third, the government must show that the objectives cannot be advanced through a regulation that is less intrusive of the defendant's religious practices; that the government is using the least restrictive means to preserve the eagle population.
The RFRA was declared unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507 (1997). It is still applicable to the federal government. In Re Young, 141 F.3d 854 (8th Cir. 1998); Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826 (9th Cir. 1999).
1) Substantial Burden on Free Exercise of Religion
The defendant must demonstrate that his ability to practice his religion has been substantially burdened by the government's procedure of distributing eagle parts to qualified members of a federally recognized tribe who are permit-holders.
In order to be considered a "substantial" burden, the governmental action must `significantly inhibit or constrain conduct or expression that manifests some central tenet of a [person's] individual [religious] beliefs; must meaningfully curtail a [person's] ability to express adherence to his or her faith; or must deny a [person] reasonable opportunities to engage in those activities that are fundamental to a [person's] religion.'Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997). The defendant must show that these burdened religious practices are central to his religious beliefs, and that his inability to practice them is more than an inconvenience to his right to free exercise. United States v. Lundquist, 932 F. Supp. 1237, 1240 (D. Ore. 1996). See United States v. Jim, 888 F. Supp. 1058 (D.Oregon 1995) (mere inconvenience is insufficient; the law must interfere with a tenet or belief that is central to religious doctrine). The government concede that the defendant has met his burden in this regard.
The defendant uses eagle feathers and eagle parts for religious purposes only; eagle parts and feathers are central to practicing Native American religion. The defendant equated an eagle feather with a crucifix, the symbol of all that is sacred and holy. The defendant testified he did not use eagle feathers for any other purpose. "I have never been taught to use them for art," the defendant said. "Art to me means that you go display it in a bank . . . when it's hung up on walls, like that, it has no respect." The defendant described the permit process — requesting eagle parts and feathers and explaining which religious ceremony they would be used for — as "offensive" and "inconvenient." He said waiting two to three years for eagle parts and feathers "belittles me." Also, the defendant complained that, at times, the Federal repository has been unable to meet his specific requests. As a result, the defendant testified, he has been burdened by his inability to help people who need help, and the delay in obtaining eagle parts and feathers from the government affected his ability to carry out his vows to "my creator and my people." For example, the defendant is a tribal pipe carrier or pipe keeper and a dancer, with duties and responsibilities for using feathers and knowing sacred songs to help other people in prayer. "Once somebody comes to you, it could be in the middle of the night, and they might have a daughter or son going into the emergency room, and they need to be prayed for, they'll wake you up, and when they ask you to do this, you know, it's your duty to go and do this," he said.
The defendant has participated in sweat purification ceremonies, healing ceremonies and sun dances. Also, the defendant has participated in "secret" initiation ceremonies, such as the warrior society, and the Red Feather Society which is equivalent to the military's purple heart for bravery and courage. The defendant uses the wing bones of an eagle for ceremonial whistles; claws and heads are attached to staffs with some claws used for body piercings and necklaces; eagle wings are used for bustles; plumes are worn by girls; and feathers are used in crowns, on peace pipes, and for healing ceremonies. Feathers are given as gifts to Native Americans to celebrate accomplishments and successes in life, such as graduating from high school or becoming the most valuable player on a sports team. "Nothing is wasted," the defendant testified. While some feathers are given away as gifts or rewards; other feathers are used in religious ceremonies for long periods of time, and handed down from father to son.
Since 1985, the defendant has received four shipments of eagle parts from the Federal Wildlife repository in Idaho. The defendant has experienced delays of roughly two years between the time his request was made and the actual shipment of eagle parts was received. One delay was three years. The government states that currently there is a 3.5 year wait for whole eagles, with a six-month delay for eagle feathers. The defendant says the unpredictability in timing, response and poor quality of the eagles (birds are shipped in dry ice and picked up at the nearest Greyhound bus station) poses a substantial burden to his religious practice.
The defendant testified that he did not always get what he requested from the Wildlife repository, and that he was not always satisfied with the quality of the eagles he received, describing one of them as "rotted," "eaten" or "frayed." He did not complain formally, however, because he was concerned that he would be required to return the eagle parts and feathers and be again placed on a long waiting list. In April 1985, for example, the defendant requested two bald eagle tails, with all the feathers on them, white with black tips. In response to that request, on December 12, 1986, the defendant received one golden eagle. In May 1987, the defendant requested a spotted eagle, two wings, two talons, a tail, or Golden eagle parts. On May 27, 1988, he received what he requested from the Pocatello repository. Approximately three years after making his next request to the government for a golden adult eagle carcass, the defendant received a golden adult eagle carcass on February 13, 1996. Finally, the defendant's fifth request, made in April 1997, was pending when these criminal charges arose in February 1999.
The defendant claims the inability of the repository system to respond to his religious needs is the substantial burden identified in Jim. Because the repository demands to know the nature and occasion of each religious practice for which eagle parts are sought, the defendant believes this inquiry is an intrusion into his religious practice. However, the government only asks the applicant to identify the nature of the ceremony. The defendant did not identify any religious secrets that he had been forced to reveal. Many Sioux cultural and religious traditions involve the acquisition and exchange of eagle feathers, and the defendant claims that the very process required to obtain these feathers (including revealing the nature of the ceremony or practice) is hostile to the defendant's religious privacy. The defendant complained of the Wildlife Service's retention of the right to attend Sioux religious ceremonies to ascertain that the feathers and eagle parts are used in the manner in which the applicant described. However, the defendant admitted that representatives of the Wildlife Service have never asked to attend any of his religious ceremonies.
In order to obtain a permit, a Native American who is a member of a federally recognized tribe must have the tribal medicine man sign a form which attests to the applicant's religious intentions and sincerity. The tribal president must also sign the form. Then, the form is sent to the government and once an applicant has been approved, the applicant can make specific requests for eagle carcases and feathers. The filing of the necessary paperwork itself is not difficult or burdensome to religious belief.
In United States v. Thirty-Eight Golden Eagles, 649 F. Supp. 269 (D.Nev. 1986), aff'd, 829 F.2d 41 (9th Cir. 1987), the court held that because eagle feathers hold such an exalted status with Indian religions, any scheme which limits the access of the faithful to their talisman must be seen as having a profound effect on the exercise of religious belief. It is clear that eagle feathers and parts of eagles are integral parts of Indian religious practices, and that this defendant uses them only for the free exercise of his religion. See United States v. Dion, 762 F.2d 674, 679 (8th Cir. 1985) (killing eagles and other protected birds for commercial gain, not for religious purposes, is not protected).
It is the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, including but not limited to, possession of sacred objects. American Indian Religious Freedom Act (AMRFA), 42 U.S.C. § 1996 (1982). This defendant has met his burden, convincing this court that his ability to freely exercise his religion is substantially burdened by the long delays in obtaining the sacred objects he needs to perform the ancient religious ceremonies of his faith, as well as the uncertainty as to whether he will obtain the eagle parts and feathers he requests.
2) Compelling Government Interest
The defendant acknowledges the BGEPA has legitimately sought to further the government's interest in protecting bald eagles. In fact, the courts have consistently found the government's interest in regulating the taking or possession of eagles or eagle parts to be compelling. United States v. Dion, 476 U.S. 734, 740-42 (1986);United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir. 1997); United States v. Lundquist, 932 F. Supp. at 1241; United States v. Jim, 888 F. Supp. 1058, 1063 (D. Ore. 1995); United States v. Thirty Eight (38) Golden Eagles or Eagle Parts, 649 F. Supp. 269, 276-77 (D. Nevada 1986).
The United States Fish and Wildlife Service is the principal federal agency responsible for conserving, protecting and enhancing fish and wildlife and their natural habitats. Among the responsibilities of the Fish and Wildlife Service: enforcing Federal wildlife laws, administering the Endangered Species Act, and managing migratory bird populations. In 1999, the President announced a proposal to remove the bald eagle from the list of threatened and endangered species, citing the fact that the bald eagle population has risen to 5,748 nesting pairs. Proposed Rule 64 FR 36454. A decision on the de-listing is expected in July 2000. Even if the bald eagle is de-listed, the species will still be protected by BGEPA, and will be monitored closely by the Wildlife Service. Id. Also, the Wildlife Service will be able to re-list the species at any time if the need becomes evident.
When the American bald eagle was adopted as the national symbol in 1782, as many as 100,000 nesting bald eagles could be found in the lower 48 states. By 1963, only 417 nesting pairs were found in the same region. Bald eagles have low reproductive rates, averaging less than two eaglets per year, and it takes four to five years before an eagle reaches sexual maturity and takes a mate. Eagles are monogamous, mating for life, and the death of one adult eagle significantly delays the reproduction of the surviving eagle. Also, the death of one parent decreases the survival chances for the eaglets.
The government states that the proposed rule to de-list the bald eagle is not intended to signal that the bald eagle population no longer needs protection from unregulated taking. All the cases in which the courts have found the government's interest in protecting the bald eagle to be compelling were decided at a time when the eagle population was very much in danger. Now, after three decades of preservation efforts, including the ban on the use of DDT, the bald eagle population is increasing. While the numbers of eagles are up, this court is not suggesting that it is appropriate to declare open season on bald eagles for Native Americans. As the law stands now, bald eagles still are a federally protected species, despite the encouraging increases in the eagle population.
What is at issue here is the important and delicate balancing act of the government's interest in wildlife preservation, against this defendant's right to exercise his religion. While the defendant has shown that his religious practices are substantially burdened, the government also has shown that it has a compelling interest in preserving the bald and golden eagle populations.
3) Least Intrusive Means
While the government suggests that allowing Native Americans who practice their faith to take or kill bald eagles would have a dramatic effect on the bald eagle population, the defendant claims his religious practices pose no threat to the bald eagles, and the government could invoke regulations that would be less restrictive to him. The defendant identifies the application process as burdensome, and the long wait for eagle parts and feathers as a restriction on his free exercise of religion.
A test for the least restrictive means inquiry where the citizen simply asked to be exempted from regulation was formulated inCallahan v. Woods, 736 F.2d 1269, 1272-73 (9th Cir. 1984):
If the compelling state goal can be accomplished despite the exemption of a particular individual, then a regulation which denies an exemption is not the least restrictive means of furthering the state interest. A synthesis of two prongs is therefore the question whether the government has a compelling interest in not exempting a religious individual from a particular regulation.
In this case, the defendant has been asked on a simple form to name the religious ceremony in which he wishes to participate with the eagle parts or feathers he is requesting from the government. The government seeks no details, no secrets need be exposed. In fact, the defendant's in-court description of religious ceremonies was far more detailed and revealing than the government requires the defendant to be on his application. In his testimony, the defendant described the government's requirements as an "intrusion" and an "inconvenience." For 15 years, the defendant has freely exercised his religion within the parameters set up by the government.
Jerome Kills Small, a defense witness who teaches Native American culture and philosophy at the University of South Dakota Santee and other area colleges, and who holds the titles of feather keeper and traditional singer of the seven sacred rights of the Lakota, estimated that 120 eagles are needed every three years (or 40 eagles each year) by the tribal persons in South Dakota authorized to perform religious ceremonies. This court cannot determine what impact this demand would have on the eagle population. The simple fact that South Dakota's Native American religious leaders need approximately 120 eagles every three years, coupled with the backlog at the Idaho Wildlife repository as evidenced by the long wait for eagle parts and feathers experienced by permit-holders indicates that the demand for eagle parts and feathers far outnumbers the supply of eagles.
Not all burdens on religion are unconstitutional; rather, even substantial burdens on religious exercise may be justified by a showing that a regulation's restrictions are necessary to the achievement of some compelling state interest. Thomas v. Anchorage Equal Rights Com'n, 165 F.3d 692 (9th Cir. 1999). While the court honors the defendant's right to practice his religion freely, without interference from the government, the court must recognize and support the government's compelling interest in protecting the eagle population. In this case, the means used to achieve that compelling interest — the registration, application, and distribution process — is narrowly tailored to achieve the compelling government interest in preserving the bald eagle.
The questionnaire is a necessary safeguard to ensure that precious eagle parts and feathers go only to those who are authorized and qualified to use them in sacred religious ceremonies. The government interest is in preserving eagles and preserving access to eagle parts by those Native Americans who meet the criteria for and have acquired the appropriate permit. The means employed are the least restrictive available for preserving and protecting the eagle population while not unreasonably restricting the religious freedom of the defendant. United States v. Lundquist, 932 F. Supp. 1237, 1242 (D. Ore. 1996).
Conclusion
The defendant is substantially burdened in his free exercise of religion, yet the government has a compelling interest in preserving the eagle population. The government is employing the least restrictive means to advance the government's compelling interest. It is recommended that the court find in favor of the government and the defendant's motion be denied.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, that the defendant's February 1, 2000, motion to dismiss the indictment (docket number 26) be denied.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).