The federal Indian trust doctrine and the Bald and Golden Eagle Protection Act: could application of the doctrine alter the outcome in U.S. v. Hugs?

• Author: Perkins, Matthew

1. INTRODUCTION

   In 1997, the Ninth Circuit Court of Appeals affirmed the conviction of Crow Indian Tribe members Frank and William Hugs for "taking, attempting to take, and purchasing eagles in violation of the Bald and Golden Eagle Protection Act (BGEPA)."(1) The BGEPA assesses both civil and criminal penalties against any person convicted of taking, possessing, selling, purchasing, or transporting any bald or golden eagle or eagle part without a permit.(2) Although intended to provide for the preservation of the national symbol of the United States, the BGEPA also interferes with the use of eagles and eagle parts in traditional Native American religious ceremonies.(3) Native Americans are permitted to possess and use eagle parts under the Act, but only after the United States Fish and Wildlife Service (FWS) verities the applicant's Indian status and participation in a valid religious ceremony.(4)

   Frank and William Hugs maintained that the BGEPA requirements restricted their free exercise of religion.(5) The unfavorable outcome in United States v. Hugs is typical of most Native American constitutional or statutory religious freedom challenges to the BGEPA,(6) and it discourages similar Native American claims in the future. Judging from the repeated failure of claims such as the Hugs', the Supreme Court has apparently foreclosed the opportunity for a successful Native American challenge to the BGEPA under traditional religious freedom arguments.(7) The Court's recent invalidation of The Religious Freedom Restoration Act (RFRA),(8) adoption of a more deferential First Amendment standard to evaluate religiously burdensome statutes,(9) and holding that the BGEPA explicitly abrogates traditional Native American Treaty Rights,(10) demonstrate the futility of the typical Native American claims against the BGEPA. The rejection of Native American constitutional, statutory, and treaty right arguments illustrates the need for an alternative argument against the BGEPA that circumvents the existing negative precedent.(11)

   This Chapter asserts that in light of the Supreme Court's invalidation of traditional Native American claims,(12) the government's obligation under the Federal Indian Trust Doctrine(13) presents the best opportunity for a successful challenge to the BGEPA and its permit process.(14) While Hugs underscores the conflict between the BGEPA and Native American religion, the limited claims raised in Hugs do not provide an adequate basis for a comprehensive discussion of the trust obligation's application to a BGEPA challenge. Therefore, this Chapter relies on the specific facts and claims of Hugs in only a small portion of its analysis.

   Part II of this Chapter outlines the BGEPA permit process to obtain a FWS Native American religious use permit. Part HI describes the judicial elimination of traditional Native American arguments against the Act and poses a hypothetical challenge to the BGEPA that illustrates the uselessness of these arguments. Part IV details the history and development of the trust doctrine and describes the current status of the doctrine in Native American law. Part V discusses how recent federal emphasis on the trust obligation promotes the doctrine as a viable foundation upon which to challenge the BGEPA. Finally, Part VI describes the basic advantages of the trust doctrine argument and explains how an argument under the trust doctrine could prevail where traditional Native American arguments have failed.

2. THE BALD AND GOLDEN EAGLE PROTECTION ACT PERMIT PROCESS

   In Native American religious practice, the eagle feather holds a sacred position, akin to Christianity's use of the cross.(15) Native Americans consider the eagle a messenger that carries the prayers of those on earth to their Creator.(16) Accordingly, the Native American Church incorporates eagles, or eagle parts, into virtually every religious ceremony.(17) Native Americans use eagle parts in religious ceremonies throughout every stage of life--from ceremonies to bestow a name on a newborn to those that mark the death and burial of an ancestor.(18) Ceremonial use of eagle feathers is necessary for Native Americans to maintain a healthy life, and such use also represents the spirituality that provides the cornerstone of Native American culture.(19) Without the ceremonial use of eagle feathers, Native American society, as it is traditionally recognized, would cease to exist.(20) Thus, any burden on the ability to procure eagle parts for use in religious ceremonies substantially burdens Native American religious practice.(21) The permit process created for the distribution of eagle parts under the BGEPA is such a burden.(22)

   Adopted by the Continental Congress as the symbol of a newly formed America in 1782, the bald eagle represents honor and dignity in American society.(23) In 1940, Congress passed the Eagle Protection Act in an effort to protect bald eagles from imminent extinction.(24) In 1962, Congress, assuming that the resemblance between bald and golden eaglets would impede the recovery of the bald eagle, extended this protection to golden eagles.(25) Additionally, the 1962 amendments permitted Native Americans to use eagle parts in religious ceremonies if the Secretary of the Interior (the Secretary) deemed the activity compatible with the Act's goals.(26) The discretion that the 1962 Amendments extended to the Secretary prompted the modern Bald and Golden Eagle Protection Act permit system.(27) This permit system allows Native Americans to apply for a permit in order to obtain eagle parts for religious ceremonial use.(28) The inefficiency of this permit system is the primary burden that the BGEPA places on Native American religious practice.(29)

   Under the BGEPA, any person found to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import ... any bald eagle ... or any golden eagle, alive or dead, ... shall be fined not more than $5,000 or imprisoned not more than one year or both."(30) The BGEPA exempts from the statutory prohibitions takes of depreciating eagle(31) for scientific or exhibition purposes,(32) for Indian religious purposes,(33) and for falconry purposes,(34) and the Act also exempts takes of golden eagle nests.(35) In order to obtain a permit to possess eagle parts for Indian religious purposes, an individual Native American must first submit an application to the appropriate FWS Regional Director.(36)

   The FWS permit application requires information such as the applicant's address, gender, physical characteristics, "association," and the location where the permitted activity will take place.(37) In addition to the generic FWS permit application requirements, Native Americans must also provide information to verify both their Native American ethnicity and their intent to use the eagle parts in a legitimate religious ceremony.(38) Specifically, the regulations require the applicant to submit three additional forms that request: 1) the species, age, and number of eagles or parts proposed to be taken or acquired by gift or inheritance; 2) the state and local area where the take would occur or from whom it would be acquired; 3) the name of the tribe with which the applicant is associated and an enrollment number, 4) the name of the tribal religious ceremony for which the parts are required; 5) a certification from the Bureau of Indian Affairs verifying that the applicant is a Native American; and 6) a certification from a duly authorized official of the religious group stating that the applicant is authorized to participate in such ceremonies.(39) Once completed, the applicant sends the appropriate forms to the Migratory Bird Permit Office in Denver, Colorado.(40)

   Based on this information, the Director reviews the application information and confirms that it is complete.(41) This initial review of the application takes an average of 12.2 days.(42) The Director then forwards the forms to the Bureau of Indian Affairs (BIA), which reviews the application and certifies the applicant's Native American status.(43) BIA holds the application for an average of 26.4 days.(44) BIA then returns the application to FWS and officials investigate the applicant's proposed activity.(45) Under the regulations, the Director determines if the proposed activity is "compatible with the preservation of the bald and golden eagle."(46) The Director assesses the BGEPA's compatibility with a particular Native American religious ceremony by considering: 1) the direct or indirect effect that issuing such a permit would likely have upon the wild populations of bald or golden eagles and 2) whether the applicant is an Indian who is authorized to participate in bona fide tribal religious ceremonies.(47) If the designated activity comports with the Act's purposes and the applicant intends to participate in a legitimate Native American religious ceremony, the Director grants the permit.(48)

   After the permit is granted, the Director sends the request for parts to the National Eagle Repository (the Repository) in Ashland, Oregon.(49) The Repository is a warehouse that stores recovered eagle remains regardless of the location or the manner in which the bird died.(50) If the requested parts are available, the Repository sends the appropriate parts to the applicant.(51) Otherwise, the Repository places the request on a waiting list prioritized according to the order in which the Repository receives the requests.(52) Because FWS may have up to 1,500 applications pending at one time, it takes an average of two weeks to fill requests for feathers, six months to a year to fill requests for eagle parts, and eighteen months to deliver an entire eagle carcass.(53)

   In addition to the generally degrading act of requesting permission to practice one's religion and subsequently having FWS investigate the request to determine if the reported religious ceremony is legitimate, the inefficiency and delay of...