Eagle feather ruling leaves open questions

TUESDAY, AUGUST 6, 2002

A federal appeals court on Monday raised significant doubts about laws meant to protect bald and golden eagles but came no closer to resolving a thorny religious and cultural dispute it first addressed a year ago.

In a set of cases with widespread implications, the full panel of the 10th Circuit Court of Appeals was only able to settle the outcome of one, albeit with some grumbling. A unanimous ruling ordered the return of eagle feathers and items to Joselius Saenz, whose Chiricahua Apache Tribe of New Mexico was terminated in the late 1800s.

"[T]he government has failed to show that limiting permits for eagle feathers only to members of federally recognized tribes is the least restrictive means of advancing the government's interests in preserving eagle populations and protecting Native American culture," wrote Chief Judge Deanell R. Tacha for the majority.

Less clear were the fates of Raymond S. Hardman and Samuel Ray Wilgus, Jr., two non-Indians who claim to hold Native religious beliefs and were convicted for illegal possession of eagle feathers and parts. The full panel returned their cases to a lower court to determine whether their rights under the Religious Freedom Restoration Act (RFRA) were violated.

"We cannot ignore that the migratory bird in question here is the symbol of our nation, heightening the government's interest in keeping the species viable," cautioned the court.

The ruling places the burden on the federal government to uphold its bald and golden eagle protections. The Department of Interior, through the U.S. Fish and Wildlife Service, has promulgated regulations that restrict eagle feathers and parts to federally-recognized tribes and their members. Other exceptions are granted for research and educational uses.

The basis for the limits is two-fold. The government cites the protected and endangered status of bald and golden eagles and its Indian trust responsibility.

The court struck at both assertions and said�the government failed to provide enough evidence to show that eagle populations would be threatened if opened up to non-Indians and non-federally recognized tribal members. "Here, the government has not carried its burden," the ruling stated.

The court also said there was no proof that the regulations were based on honoring treaty or other Indian rights. "Thus, the government has not shown that broader permit eligibility would damage the government's ability to fulfill its trust obligations," the court wrote.

The majority ruling was accompanied by two separate opinions that agreed with the result but offered differing reasons. In one, Circuit Judge Michael Murphy said the court was "flawed" to conclude that the Interior regulations don't protect Indian Country.

"Without access to eagles and eagle parts, Native Americans could not engage in their traditional way of life," he wrote in an opinion joined by Circuit Judges Mary Beck Briscoe and Robert H. Henry.

Circuit Judge Harris L. Hartz also agreed with the majority opinion but diverged on the government's burden of proof. "In my view, the government's practice of permitting members of recognized tribes to possess eagle parts is largely irrelevant to the analysis," he wrote.

Get the Case:
US v. HARDMAN, No. 99-4210 (10th Cir. August 05, 2002)

Related Cases:
SAENZ v. DEP'T OF INTERIOR, No 00-2166 (10th Cir. August 08, 2001)
US v. WILGUS, No 00-4015 (10th Cir. August 08, 2001)
US v. HARDMAN, No 99-4210 (10th Cir. August 08, 2001)

Relevant Links:
The Bald Eagle and Golden Eagle Protection Act - http://laws.fws.gov/lawsdigest/baldegl.html
Migratory Bird Treaty Act - http://www.usbr.gov/laws/mbta.html