Possible Future Circuit Split re: Bald & Golden Eagles Protection Act

An interesting question is brewing in the Ninth and Tenth Circuits — whether the administration of the National Eagle Repository (created by the USFWS as a means to create an exception to the Bald and Golden Eagles Protection Act for American Indians) is unconstitutional as applied to American Indians.

The Tenth Circuit soon will decide United States v. Friday, a prosecution of an Indian for harvesting eagle parts. The lower court in that case ruled that the underlying statute violated the Religious Freedom Restoration Act. We posted the materials in this case here and here.

The theory is this — Friday is eligible for the harvesting of eagles; under federal law, he has to get a permit from the USFWS; but Friday never bothered because less than four people have ever received a permit, making a request for permit all but futile; and prosecuting him for violation of the BGEPA violates his First Amendment right to freedom of religion.

The Ninth Circuit will soon decide United States v. Vasquez-Ramos, a similar case but one where the lower court allowed the prosecution to proceed. That court will likely affirm the lower court, largely on the strength of United States v. Antoine, a 2003 decision on the same question out of the CA9.

If the CA10 affirms its lower court, and it very well might, then there could be a circuit split on the question of the constitutionality of the implementation and administration of the BGEPA. And the probability for review would be enhanced by a vigorous cert petition from the United States (forced to defend the statute) and the factor that federal criminal prosecution authority would be at stake. Plus, it’s First Amendment freedom of religion question, something that fits within Justice Scalia’s description of issues that excite the “judicial libido.”

I think there’s a decent possibility that the Supreme Court (yes, even the Roberts Court) will declare the statute unconstitutional as applied. For, unlike Employment Division v. Smith, there’s no drug abuse or drug war prosecution in question, and even if there were, 2005’s O Centro indicates a healthy respect in the Roberts Court for RFRA as applied to the federal government. Second, the eagles are rebounding and may even be taken off the endangered species list.

But if there’s no circuit split, there’s no Supreme Court review. Moreover, there are some procedural and factual wrinkles that might scare off the court. First, the defendant in Friday never petitioned the Repository for a permit to harvest. Second, assuming the Antoine case is the relevant precedent, the defendant there was a Canadian Indian who didn’t have a relationship to a federal recognized Indian tribe and therefore, arguably, didn’t have a right under the First Amendment as a result.

5 thoughts on “Possible Future Circuit Split re: Bald & Golden Eagles Protection Act

  1. Sarah Krakoff December 17, 2007 / 10:16 pm

    I attended the Tenth Circuit Argument today in United States v. Winslow Friday. First, just to clarify, Friday’s defense is raised under RFRA, not the First Amendment, and the RFRA standard for what constitutes a religious practice is broader than what prior caselaw articulated under the First Amendment. Also, the so-called “live take” permit for killing an Eagle for religious purposes is distinct from the permit system in place to obtain eagle feathers and parts from the Repository in Denver. One of the important facts in Friday’s case was that the government itself perpetuates the confusion about this by essentially hiding the live-take permit option, and routing people instead to the repository. The only live take permits that had been issued when Friday was prosecuted were those in the Southwest, issued to tribes rather than individuals. For tribal people like the Northern Arapho, for whom taking the eagle is itself part of the religious rite, this is a serious problem, indeed we might say a “substantial burden,” which is what the practitioner has to show to trigger the government’s obligation to justify its actions by the compelling interest/least restrictive means test. At any rate, the argument was very lively. Judges McConnell and Ebel asked the Assistant U.S. Attorney hard questions about substantial burden, and at one point she in fact conceded that because the sundance is private, the permit system, which requires that government agents have access to inspect the ceremonies, is a “burden.” She tried to back-track somewhat in a later answer, saying it is not a “substanial” burden. (Judge Seymour, the third judge on the panel, was not at the argument due to a family emergency, but will be participating in the decision.) The judges were almost, though not equally, combative with Friday’s defense attorney. They pressed him on the nature of the burden, and Judge Ebel in particular wanted to know why this isn’t a case of “ignorance of the law is no defense.” The federal defender explained that the government has a trust obligation to let tribal people know about the government’s own accommondation to their religious practice, particularly given that the tribal member exceptions to the Bald and Golden Eagle Protection Act were passed to make up for abrogation of treaty rights to hunt eagles on tribal lands. The attorney for Northern Arapaho also had a few minutes of argument time, and illuminated some important aspects of Northern Arapaho law, including that Friday would not have been prosecuted at the tribal level because customary law would honor the religious practice of taking the eagle. Those are some highlights; a decision will be forthcoming eventually….

  2. Matthew L.M. Fletcher December 18, 2007 / 1:36 am

    Thanks for clarifying those points, Sarah. Any predictions?

  3. Chaska Denny December 18, 2007 / 12:50 pm

    I believe that the Federal Repository needs to be updated to handle All requests from Federally Recognized Tribal Members concerning Eagle Feathers, which in most if not all cases, predates the United States of America’s laws and government. The “Grandfather clause” should be implemented, currently what has been seen so far is that these requests are ignored, for there are so many who have had Sacred Eagle feathers handed down from anceint days to today. I believe that ALL federally recognized Tribal members should be exempt from these laws, I do believe that those non Tribally affiliated people who kill eagles for sale should be prosecuted to the fullest extent. Far too long the rights of the Original Peoples of the Western Hemisphere has been ignored and violated, it is time that the government recognize and adhere to the Ways of the Original peoples here in the Western Hemisphere.

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