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.