United States v. Hardman
297 F.3d 1116 (10th Cir. 2002)

U.S. Fish and Wildlife Service (Service) regulations for obtaining permits to possess eagle feathers may not exclude an Indian practitioner of a Native American religion who is not a member of federally-recognized tribes, according to a recent en banc decision of the U.S. Court of Appeals for the Tenth Circuit. The Court held that the Service had failed to demonstrate that its regulatory distinction in favor of members of Indian tribes (50 C.F.R. ' 22.22) is the least restrictive means of furthering a compelling governmental interest, and thus violated the Religious Freedom Restoration Act (RFRA), 42 U.S.C. ' 2000bb-1(b). This is a consolidated case involving a civil forfeiture in New Mexico and two prosecutions in Utah. See United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002).

The decision affirmed a judgment of the U.S. District Court of New Mexico, allowing a non-member Chiricahua Apache man to retrieve feathers seized by the Service for failure to possess a permit. In re Saenz, No. 99-21-M (D.N.M. 2000). The Circuit also reversed two Utah convictions of non-Indians for possessing eagle feathers without a permit and remanded the cases to the District Court for findings on whether the Service could justify, under RFRA, excluding non-Indian practitioners of religions which involve use of eagle feathers from the permitting process. As a result, the Service could still prove that its regulation meets the least restrictive means test under RFRA.

The Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. '' 668-668d, provides for exemptions for Indian religious uses, among scientific and other uses, which are addressed by Service regulations implementing both the BGEPA and the Migratory Bird Treaty Act (MBTA), 16 U.S.C. ' 703-711. This decision not only impacts the permitting process for possession of eagle feathers for religious purposes to many persons who are not members of Indian tribes but possess some quantum of Indian blood, it also portends the opening of that process to non-Indians. Appellant Hardman had raised equal protection claims, but the Court found it unnecessary to address them.