IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT. MICHAEL REDWING, Appellant, UNITED STATES, Appellee.

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1 IN THE UNITED STATES COURT OF APPEALS FOR THE TWELFTH CIRCUIT No MICHAEL REDWING, Appellant, v. UNITED STATES, Appellee. Appeal from the United States District Court for the Central District of DePaulia. No. 16 X 145 Marcia Carpentier, Judge. ARGUED August 11, 2016 DECIDED October 14, 2016 Before OLMSTEAD, REYES, and SIMON, Circuit Judges. OLMSTEAD, Circuit Judge. Appellant Michael Redwing was convicted on one count of knowingly possessing bald eagle feathers without a permit to do so, in violation of the Bald and Golden Eagle Protection Act (BGEPA). Mr. Redwing was sentenced to 3 months of probation and ordered to pay a fine of $2,000. He brings this appeal, in which he contends that, as applied to members of State-recognized Indian groups engaged in religious activities, the prohibition by BGEPA and the regulations interpreting BGEPA on the possession of bald eagles or their parts for the Indian group s religious use violates the Religious Freedom Restoration Act (RFRA). Mr. Redwing alleges that BGEPA imposes a substantial burden on his free exercise of religion and is not the least restrictive means of furthering a compelling governmental interest. In addition, he asserts that the Native American Graves Protection and Repatriation Act (NAGPRA), not

2 BGEPA, governs the instant case. While this case involves a difficult weighing of respect for American Indian religious practices against important government interests, for the reasons that follow, we reject Mr. Redwing s arguments and affirm the judgment of the District Court. I. Factual Background Michael Redwing is a member of the Niobrara Band. The Niobrara Band (Band) is an Indian group recognized by the State of DePaulia 1 and has a state reservation. Mr. Redwing is recognized by members of the Niobrara Band as being responsible for performing cultural duties relating to the ceremonial and religious traditions of the Niobrara Band and exercising a leadership role in the Indian group. The DePaulia Indian Tribe (Tribe) is a federally-recognized Indian tribe, i.e., it is an Indian entity recognized and eligible to receive services from the United States Bureau of Indian Affairs because it is acknowledged to exist as an Indian tribe pursuant to the Federally Recognized Indian Tribe List Act of Pub. L. No , 108 Stat [see 25 U.S.C. 479a, 479a-1]. The Tribe s reservation and the Band s reservation border each other. Mr. Redwing s residence, which he owns, is located within the exterior boundaries of the reservation belonging to the Tribe. 1 While the Band is not recognized as an Indian tribe by the Federal government, it has a long history in the area that is now the State of DePaulia, tracing its existence in the region back several hundred years, and is recognized by the State of DePaulia. State recognition operates as a means for states to establish a government-to-government relationship to coordinate and communicate with Indian groups. In addition, by providing some benefits to Indian groups that have state recognition, and leaving it largely to the states to determine who those tribes are, the Federal government has acknowledged the authority of states to recognize Indian groups within their borders. See Alexa Koenig and Jonathan Stein, Federalism and the State Recognition of Native American Tribes: A Survey of State- Recognized Tribes and State Recognition Processes across the United States, 48 SANTA CLARA L. REV. 79, 86 (2008) (citations omitted). We note that the term tribe is typically used only for American Indian groups that are recognized as tribes by the Federal government, with all others referred to as Indian groups. We follow this terminology. 2

3 The Band and the Tribe practice traditional American Indian religions. Both the Band and the Tribe associate the bald eagle with their traditional creation stories and consider it to be a progenitor of their peoples. In order for their traditional religious leaders to conduct one particular traditional religious ceremony, each Indian entity needs bald eagle parts, including eagle feathers, which they hold to be sacred. On November 16, 2014, Mr. Redwing found a dead bald eagle under a tree on his property. Mr. Redwing took the bald eagle into his custody in order to protect it from possible depredation by scavengers and natural forces. Knowing that the Tribe s traditional religious leader needs bald eagle parts for the practice of a traditional religious ceremony by its presentday adherents, later that day, Mr. Redwing contacted Winton Brown, the Chair of the Tribe s governing body. Mr. Redwing informed Mr. Brown of the discovery of the dead bald eagle now in his custody, and Mr. Redwing later transported the dead bald eagle to the Tribe s headquarters. In recognition of Mr. Redwing s actions, the Tribe s governing body decided to give three of the dead bald eagle s feathers to Mr. Redwing so that he could carry out the Band s traditional religious practice for which the bald eagle feathers were required. On November 21, 2014, five days after Mr. Redwing was given the three bald eagle feathers, the U.S. Fish and Wildlife Service (USFWS) learned that Mr. Redwing had the feathers in his possession. The USFWS ascertained that Mr. Redwing had not sought and did not possess a permit for the bald eagle feathers, as required under BGEPA, 16 U.S.C. 668(a). The feathers were seized and sent to the USFWS office in DePaulia City, DePaulia. In December 2014, the United States brought criminal charges against Mr. Redwing under BGEPA, 668(a). In March 2015, Mr. Redwing was convicted on one count of knowingly possessing bald eagle feathers 3

4 without receiving a permit to do so, in violation of BGEPA. He was sentenced to one month in prison and ordered to pay a $2,000 fine. Mr. Redwing challenges his conviction on two grounds. First, he contends that, as applied to members of State-recognized Indian groups engaged in religious activities such as himself, the prohibition on the possession of bald eagles or their parts for the Indian group s religious use by BGEPA and the regulations interpreting BGEPA violates the Religious Freedom Restoration Act (RFRA), 42 U.S.C. 2000bb bb4 (2006), because it imposes a substantial burden on his free exercise of religion and is not the least restrictive means of furthering a compelling governmental interest. Second, he asserts that the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C et seq., not BGEPA, governs the instant case. 2 We address each of Mr. Redwing s arguments in turn. II. Legal Background The statutes and regulatory schemes involved in this appeal are complex. We first set forth the requirements of BGEPA, pursuant to which Mr. Redwing was charged and convicted. We next explain RFRA, which Mr. Redwing asserts was violated by the operation of BGEPA. Finally, we set forth the relevant provisions of NAGPRA, which Mr. Redwing asserts governs the case before us. 2 Neither Mr. Redwing nor the government brings any claims pursuant to other State or Federal laws or treaties protecting birds (or bird parts), such as the Migratory Bird Treaty Act, 16 U.S.C , the Lacey Act, 16 U.S.C , and the Endangered Species Act, 16 U.S.C et seq. Further, there are no treaties between the Niobrara Band or the DePaulia Indian Tribe and the Federal government or the State of DePaulia that apply to the present case. 4

5 A. Standard of Review None of the facts are disputed in the case before us. We review questions of law de novo. See Highmark, Inc. v. Allcare Health Management System, Inc., U.S., 134 S. Ct. 1744, 1748 (2014) ( [D]ecisions on questions of law are reviewable de novo. ). B. Bald and Golden Eagle Protection Act Originally enacted in 1940, BGEPA s clear purpose is to protect the bald eagle from extinction due to the bald eagle s status as no longer a mere bird of biological interest but a symbol of the American ideals of freedom. 76 Pub. L. No. 567, 54 Stat. 250 (1940), codified at 16 U.S.C d; see also U.S. v. Hardman, 297 F.3d 1116, 1122 (10th Cir. 2002) (citing Andrus v. Allard, 444 U.S. 51, (1979)). As one of the cornerstones of our nation s efforts to protect and preserve the bald eagle[,] United States v. Wilgus, 638 F.3d 1274, 1278 (10th Cir. 2011), BGEPA prohibits any person from knowingly, or with wanton disregard for the consequences of his act, taking, possessing, selling, purchasing, bartering, offering to sell, purchase or barter, transporting, exporting or importing, at any time or in any manner, any bald eagle commonly known as the American Eagle, or any golden eagle, alive or dead, or any part, nest or egg thereof of the foregoing eagles. 16 U.S.C. 668(a). BGEPA also prohibits any person from violating any permit or regulation issued pursuant to this statute. Id. BGEPA was amended in 1962 to create an exception from BGEPA s blanket ban on taking and possessing eagles and eagle parts, declaring Whenever, after investigation, the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof... for the religious purposes of Indian tribes,... he may authorize the taking of such eagles pursuant to regulations which he is hereby authorized to prescribe.... 5

6 16 U.S.C. 668a; 3 see also Wilgus, 638 F.3d at The Secretary of the Interior promulgates the regulations necessary to implement 16 U.S.C. 668a at 50 C.F.R Under the current regulations, a person wishing to take, possess or transport bald eagles or their parts for the religious purposes of an Indian tribe must submit an application for a permit, which is issued by the USFWS. 50 C.F.R (a). The USFWS employs certain criteria in evaluating the permit application under this religious purpose exception. Under these criteria, a permit is available only to a person enrolled in a federally recognized Indian tribe. 50 C.F.R C. Religious Freedom Restoration Act RFRA was enacted against a background of First Amendment jurisprudence culminating in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990). Prior to Smith, the Court had established a compelling interest test for laws which imposed on religious freedom. The compelling interest test was first described in Sherbert v. Verner, 374 U.S. 398 (1963). In Sherbert, the Supreme Court determined that any incidental burden on the free exercise of appellant s religion may be justified by a compelling state interest in the regulation of a subject within the State s constitutional power to regulate. Sherbert, 374 U.S. at 403 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)); see also Hardman, 297 F.3d at While the precise language of the test has varied over time, throughout the 1970s and 80s, the nature of the inquiry remained stable, calling for the government to demonstrate that the law in 3 This provision also makes an exception from the general provisions of BGEPA for: the scientific or exhibition purposes of public museums, scientific societies, and zoological parks... the protection of wildlife or of agricultural or other interests in any particular locality... for the purpose of seasonally protecting domesticated flocks and herds and, with more limitations, for the purposes of falconry. 16 U.S.C. 668a. This provision also allows permits to be granted for the taking of golden eagle nests which interfere with resource development or recovery operations. Id. 6

7 question is narrowly tailored to achieve a compelling government interest. Hardman, 297 F.3d at In the late 1980s, however, the Supreme Court began to decline to apply strict scrutiny to challenges to generally applicable laws such as prison regulations, regulations governing the administration of government programs, and military regulations based on the free exercise of religion. In these cases, the Supreme Court applied instead a rational basis test to evaluate the government actions, despite their clear impact on the free exercise of religion. Hardman, 297 F.3d at ; see also Wilgus, 638 F.3d at This trend culminated in Employment Division v. Smith. 494 U.S. 87 (1990). In Smith, two Native Americans who worked as drug rehabilitation counselors ingested peyote as part of a religious ritual in the Native American Church and were subsequently fired. Smith, 494 U.S. at 872. The U.S. Supreme Court upheld the firing, with Justice Antonin Scalia concluding that in most circumstances, generally applicable laws that impose a burden on religious practice such as Oregon s criminal prohibition on the use of peyote are not subject to the compelling interest test. Justice Scalia stated that allowing a religious exemption to presumptively invalidate regulations would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind. Id. at 888. The Smith Court s rejection of the traditional strict scrutiny test for laws that burdened the free exercise of religion caused widespread criticism, with Congress characterizing the Smith decision as having virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion. 42 U.S.C. 2000bb(a)(4). In response to Smith, Congress passed RFRA, creating a statutory prohibition against government action substantially burdening the exercise of religion. S. Rep , as reprinted in 1993 U.S.C.C.A.N. 1892, 1893; see also Burwell v. Hobby Lobby Stores, 134 S. Ct. 2751, 2791 (2014) 7

8 (Ginsburg, J., dissenting) ( In RFRA, Congress adopted a statutory rule comparable to the constitutional rule rejected in Smith. ). RFRA was specifically intended to restore the pre-smith compelling interest test for laws that burden religion, 4 prescribing that Government shall not substantially burden a person s exercise of religion even if the burden results from a rule of general applicability unless the government demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. 2000bb-1(a)- (b). D. Native American Graves Protection and Repatriation Act Enacted in 1990, the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C , represented the culmination of a process by which Congress sought to reconcile four major areas of law affecting American Indians civil rights law, Indian law, property law, and administrative law. 5 NAGPRA addresses the rights of Indian tribes and Native Hawaiian organizations in ancestral human remains, associated and unassociated funerary objects, sacred objects, and objects of cultural patrimony. While NAGPRA has three main provisions, only one is relevant to the case before us: section 3 of the Act, 25 U.S.C. 3002, which addresses the discovery or intentional excavation on Federal lands or tribal land of cultural items after November 16, 1990 (the effective date of 4 As stated explicitly in the text of RFRA, its purpose is to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened. 42 U.S.C. 2000bb(b)(1); see also Hobby Lobby, 134 S. Ct. at 2791 (Ginsburg, J., dissenting). 5 See C. Timothy McKeown and Sherry Hutt, In the Smaller Scope of Conscience: The Native American Graves Protection & Repatriation Act Twelve Years Later, 21 UCLA J. ENVTL. & POL Y 153 ( ). 8

9 the Act) and the ownership or right of control of those cultural items. 6 In particular, 25 U.S.C. 3002(a)(2)(A) provides that ownership of sacred objects excavated or discovered after November 16, 1990 on tribal lands shall be in the Indian tribe or Native Hawaiian organization on whose tribal land such objects were discovered. NAGPRA defines sacred objects as specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents. 25 U.S.C. 3001(3)(C). NAGPRA further defines tribal land to include all lands within the exterior boundaries of any Indian reservation. 25 U.S.C. 3001(15)(A). III. Analysis A. RFRA Claim We consider first whether BGEPA s prohibition on possession by State-recognized American Indian groups of bald or golden eagle parts violates RFRA, where the eagle parts are needed by a traditional religious leader of the group for the practice of a traditional American Indian religion by present-day adherents. The United States does not challenge Mr. Redwing s assertion that BGEPA and its regulations impose a substantial burden on the exercise of his religion. Thus, the inquiry into Mr. Redwing s claim that BGEPA and its regulations violate RFRA 7 requires us to consider whether BGEPA passes the strict scrutiny test, i.e. whether the substantial burden imposed on Mr. Redwing by BGEPA and its regulations is in furtherance of a compelling governmental interest and, if so, whether BGEPA is the least restrictive means of achieving that compelling interest. 6 As NAGPRA applies only to Federally-recognized Indian tribes, 25 U.S.C. 3001(7), any reference to tribal land in NAGPRA similarly refers only to the tribal lands of Federally-recognized Indian tribes. 7 We note that Mr. Redwing does not challenge his conviction on the grounds that BGEPA violates his free exercise rights under the First Amendment. Accordingly, we consider only his claim under RFRA. 9

10 1. Compelling Interest Under RFRA, if a statute substantially burdens a person s exercise of religion, the government must show that application of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. 2000bb-1(b). The United States asserts two compelling interests that are furthered by BGEPA and its regulations: (1) protecting and preserving bald eagles, and (2) protecting the interests of federally recognized American Indian tribes. Mr. Redwing concedes that the government has a compelling interest in preserving and protecting bald eagles. 8 We hold that the government s second asserted interest is indeed a compelling interest and that BGEPA and its regulations represent the least restrictive means of achieving this interest. 9 We recognize that many American Indian groups consider the eagle to be sacred and important to their religious practices 10 and note that the U.S. government does not contest that both the Niobrara Band and the DePaulia Indian Tribe consider the eagle to be sacred and require the use of eagles for religious ceremonies. However, as recognized repeatedly by the Supreme Court, the government has an obligation to protect the interests of federally recognized tribes. Morton v. Mancari, 417 U.S. 535, 552 (1974). Numerous courts have held that this interest is a compelling one, see Wilgus, 638 F.3d at 1285; Gibson v. Babbitt, 223 F.3d 1256, 1258 (11th Cir. 8 We note that several circuits have held that protecting bald eagles qualifies as a compelling interest because of its status as our national symbol, regardless of whether the eagle still qualifies as an endangered species. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 473 (5th Cir. 2014) (citations omitted). 9 While Mr. Redwing concedes that the government s first asserted interest is a compelling one, we must still examine whether the government s second asserted interest is also a compelling one, as the government argues that BGEPA is the least restrictive means of achieving its second asserted interest in particular. 10 See Kristin A. Carpenter, Limiting Principles and Empowering Practices in American Indian Religious Freedoms, 45 CONN. L. REV. 387, 460 (2012). 10

11 2000), and today we follow suit in holding that the government has a compelling interest in protecting the interests of federally recognized tribes, including preserving and protecting their cultures and religions. The federal government is given the power to regulate and protect federally recognized American Indian tribes. Wilgus, 638 F.3d at A compelling interest in protecting federally recognized American Indian tribes, as opposed to protecting American Indian culture generally, very easily arises from that power and obligation. Id. at 1286 (citing Hardman, 297 F.3d at ). Moreover, while the dissent in this case argues that the restriction to federally recognized tribes stems from the government s policy and not the language of BGEPA itself, this is not an accurate reading, as noted by the U.S. Court of Appeals for the Tenth Circuit: Congress could easily have worded the section [stating the exception for the religious purposes of Indian tribes] differently; the exception could have read, for example, for the purposes of Native American 11 religion. Wilgus, 638 F.3d at Thus, BGEPA itself elucidates that Congress viewed its duty as one of protecting specifically the religious practices of federally recognized tribes, not American Indian religions in general. This formulation of the government s compelling interest is supported by the long history the government has with federally recognized tribes and its special relationship with and obligations to such tribes. As the Supreme Court noted, due to its often-times shameful history with American Indians, the government assumed the duty of furnishing... protection [to the Native Americans], and with it the authority to do all that was required to perform that obligation. Morton v. Mancari, 417 U.S. 535, 552 (1974)) (quotation marks omitted). As the 11 While some statutes and courts use the term Native American, it is our understanding that American Indian is the preferred term and as such we use the preferred terminology. 11

12 Tenth Circuit noted, [p]ursuant to this obligation to the tribes, Congress was empowered to single out for special treatment a constituency of tribal Indians. Wilgus, 638 F.3d at 1286 (quoting Morton, 417 U.S. at 552) (quotation marks omitted). Accordingly, we hold that the government has a compelling interest in protecting the interests of federally recognized tribes, including preserving their cultural and religious practices. 2. Least Restrictive Means We further hold that BGEPA and its regulations, specifically the limitation of granting permits to take eagles and eagle parts to only members of federally recognized tribes, are the least restrictive means of furthering both of the government s compelling interests. First, there are legitimate and compelling reasons to draw distinctions between members of federally and non-federally recognized tribes. As noted by President Bill Clinton in 1994, the exceptions and policies for members of federally recognized American Indian tribes are in place in part to be consistent with and show due respect for the government-to-government relationship between the Federal and Native American tribal governments WL Second, allowing persons who are not members of federally recognized American Indian tribes to apply for permits to take and possess eagles and eagle parts would obliterate the government s efforts to fulfill its compelling interest in protecting the rights of federally recognized tribes. The U.S. Court of Appeals for the Eleventh Circuit, in holding that the regulation limiting applicants for eagle parts to members of federally recognized Indian tribes is the least restrictive means of furthering the United States treaty obligations with the federally recognized Indian tribes, stated: The record before us indicates that the demand for eagle parts exceeds the supply, and applicants for permits who are members of federally recognized Indian tribes experience prolonged delays in receiving eagle parts. Further, the record indicates 12

13 ... that there is a sizable pool of individuals who are similarly situated to Gibson [the appellant who was not a member of a federally recognized Indian tribe]... Thus, it is clear from the record that without the exemption the limited supply of bald and golden eagle parts will be distributed to a wider population and the delays will increase in providing eagle parts to members of federally recognized Indian tribes, thereby vitiating the governments [sic] efforts to fulfill its treaty obligations to federally recognized Indian tribes. Gibson v. Babbitt, 223 F.3d 1256, 1258 (11th Cir. 2000); see also Wilgus, 638 F.3d at Accordingly, opening up the permit applications to anyone who desires eagles and eagle parts would have a severe negative impact on the government s ability to fulfill its special obligation to federally recognized American Indian tribes. Mr. Redwing has failed to put forth an alternative to BGEPA and its regulations that would further the government s compelling interests in protecting bald eagles and protecting the interests of federally recognized American Indian tribes. Accordingly, we hold that BGEPA and its governing regulations do not violate RFRA. B. NAGPRA Claim We now consider whether NAGRPA, not BGEPA, governs the present case. We note that Mr. Redwing s argument appears to be one that no other court has addressed. Mr. Redwing raises a multilayered argument in support of his claim that NAGPRA governs this case. First, under NAGPRA, 25 U.S.C. 3001(15)(A), the dead bald eagle was discovered on the tribal land of the Tribe because it was discovered on land within the exterior boundaries of the Tribe s reservation. Second, under NAGPRA, 25 U.S.C. 3001(3)(C), the dead bald eagle is a sacred object because it fits the NAGRPA definition of sacred objects: specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents. Third, under 3002(a)(2)(A), the legal ownership or control of the dead bald eagle is vested with the 13

14 Tribe because it is a sacred object that was discovered on the Tribe s tribal land after November 16, Fourth, under 3002(e), the Tribe s governing body was permitted to expressly relinquish the Tribe s control of three of the dead bald eagle s feathers to Mr. Redwing. Finally, Mr. Redwing argues that, as the Tribe legally owns or controls the dead bald eagle, and as the Tribe s governing body was permitted to relinquish the Tribe s control of the three bald eagle feathers to Mr. Redwing under NAGPRA, Mr. Redwing was permitted to possess the feathers. Based on the above, Mr. Redwing asserts that his possession of the bald eagle feathers without a permit to do so was lawful and his conviction must be overturned. We agree that the dead bald eagle was discovered on land that, under NAGPRA, is the tribal land of the Tribe. However, we disagree with Mr. Redwing that the dead bald eagle is a sacred object under NAGPRA. It is a cardinal principle of interpretation that courts must give effect, if possible, to every clause and word of a statute. Loughrin v. U.S., 134 S. Ct. 2384, 2390 (2014) (citing Williams v. Taylor, 529 U.S. 362, 404 (2000)). Moreover, a court is reluctant to treat statutory terms as surplusage in any setting. Duncan v. Walker, 533 U.S. 167, 174 (2001) (citing Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U.S. 687, 698 (1995)). Per the definition of sacred objects under NAGPRA, it is not enough that an item be a ceremonial object in order to qualify as a sacred object. It must be a specific ceremonial object. 25 U.S.C. 3001(3)(c). Consequently, with the above principles of statutory interpretation in mind, we must determine whether, in the instant case, the dead bald eagle is a specific ceremonial object. 14

15 A bald eagle is an animal. Animals have been held by the courts to constitute goods within the scope of Article 2 of the Uniform Commercial Code (U.C.C.). 12 Indeed, the Uniform Commercial Code specifically defines goods as including the unborn young of animals. U.C.C (1). Goods of which any unit is, by nature or usage of trade, the equivalent of any other like unit or goods that by agreement are treated as equivalent are fungible goods. U.C.C (18); see also Fungibles, BLACK S LAW DICTIONARY. Specific, by its very definition, refers to a thing that is not fungible. See Specific, MERRIAM WEBSTER DICTIONARY, (last visited Oct. 13, 2016) (defining specific as meaning special or particular). In the instant case, the dead bald eagle is fungible. Any dead bald eagle is, by usage in the Tribe s traditional religious practice, the equivalent of any other dead bald eagle. Being fungible, the dead bald eagle is devoid of the individuality that would require it to be delivered to the Tribe in specie and, accordingly, it cannot be a specific ceremonial object. As the dead bald eagle is not a specific ceremonial object, it is not a sacred object under NAGPRA. Moreover, we find that Mr. Redwing s reading of NAGPRA is a tortured understanding of that statute and its purpose. The stated purpose of NAGPRA is to protect Native American burial sites and the removal of human remains, funerary objects, sacred objects, and objects of cultural patrimony on Federal, Indian and Native Hawaiian lands. H.R. Rep (1990), as reprinted in 1990 U.S.C.C.A.N. 4367, The tone and language used throughout NAGPRA 12 Hefley v. Jones, 687 F.2d 1383 (10th Cir. 1982) (cattle); Mattern Hatchery, Inc. v. Bayside Enterprises, Inc., 775 F. Supp. 803 (M.D. Pa. 1991) (applying Pennsylvania law) (breed of chicken suited kosher processing techniques); Deaver v. Auction Block Co., 107 P.3d 884 (Alaska 2005) (fish); Midwest Hatchery & Poultry Farms, Inc. v. Doorenbos Poultry, Inc., 783 N.W.2d 56 (Iowa Ct. App. 2010) (livestock); Trad Industries, Ltd. v. Brogan, 246 Mont. 439, 805 P.2d 54 (1991) (elk); Rotunda v. Haynes, 33 Misc. 3d 68, 933 N.Y.S.2d 803 (App. Term 2011)(dog); Leal v. Holtvogt, 123 Ohio App. 3d 51, 702 N.E.2d 1246 (2d Dist. Miami County 1998) (Arabian stallion). 15

16 and evident in the legislative history would not seem to indicate that NAGPRA was meant to encompass wildlife or undermine statutes such as BGEPA. Federal wildlife laws are essential to preserving natural resources including the eagle and other migratory birds that are vitally important to the Nation. Memorandum from the Office of the Att y Gen. to Assistant Att y Gen., Env t and Natural Res. Div., Memorandum on Possession or Use of the Feathers or Other Parts of Federally Protected Birds for Tribal Cultural and Religious Purposes (Oct. 12, 2012), available at (last visited Oct. 13, 2016). Were we to interpret NAGPRA as the dissent in this case does, as vesting dispositive power over eagles found on tribal land in American Indian tribes, we would completely invalidate BGEPA. Further, while the dissent in the instant case argues that statutes passed for the benefit of American Indians should be liberally construed in their favor, [a] canon of construction is not a license to disregard clear expressions of... congressional intent. Montana v. Blackfeet Tribe, 471 U.S. 759, (1985) (White, J., dissenting); see also South Carolina v. Catawba Indian Tribe, 476 U.S. 498, 506 (1986); Cherokee Nation of Okla. v. United States, 73 Fed. Cl. 467, 478 (2006). We thus hold that BGEPA controls the disposition of eagles and eagle parts, including those found within the exterior boundaries of an American Indian reservation. 13 Accordingly, the ruling of the district court is AFFIRMED, and Mr. Redwing s conviction and sentence stand. SIMON, Circuit Judge, dissenting. The government has often acknowledged the importance that eagles play in the cultural and religious lives of many, but not all, American 13 As we do not believe that NAGPRA applies in the instant case, we do not address the issue raised by the dissent as to whether the Tribe can determine in whom to vest ownership of a sacred object over which the tribe relinquishes possession under 3002(e). 16

17 Indian groups. In a memo to Congress, then-assistant Secretary of the Interior Frank Briggs wrote: The golden eagle is important in enabling many Indian tribes... to continue ancient customs that are of deep religious or emotional significance to them. U.S. v. Dion, 476 U.S. 734, (1986) (quoting Miscellaneous Fish and Wildlife Legislation: Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 87th Cong., 2d Sess., 1 (1962)). He further noted that [t]here are frequent reports of continued veneration of eagles and of the use of eagle feathers in religious ceremonies of tribal rites. Id. This is no less the case with respect to American Indian groups that, while not recognized by the Federal government, are sincere adherents to and practitioners of traditional American Indian religions that revere eagles and require the use of eagles to perform religious practices. In the instant case, Mr. Redwing has asserted that the Niobrara Band, of which he is a member, considers eagles to be sacred and uses bald eagle parts, including feathers, to conduct their particular religious ceremonies. The government does not contest that and concedes that a substantial burden is imposed on Mr. Redwing s exercise of religion. However, the government asserts that compelling interests are served by burdening Mr. Redwing s free exercise of religion and that BGEPA is the least restrictive means of furthering those interests. While the majority agrees with the government s argument, I cannot find that the government s asserted interest is a compelling one or that BGEPA is the least restrictive means of achieving either of the government s asserted interests. Nor can I agree with the majority that NAGPRA does not govern the case before us. As such, I respectfully dissent. 17

18 A. RFRA Claim 1. Compelling interest Once a substantial burden has been shown to exist, the government bears the burden of demonstrating that imposing the burden is the least restrictive means of achieving a compelling governmental interest. 42 U.S.C. 2000bb(b); see also McAllen Grace, 764 F.3d at 472. I note that pursuant to the precise words of RFRA, it is not enough that the government demonstrate the substantial burden on a person s exercise of religion is justified by the compelling interest test, but rather that application of the burden to the person bringing the challenge is justified under the compelling interest test. Id. (emphasis added). The Supreme Court emphasized this in a series of recent cases, noting that RFRA contemplates a more focused inquiry and requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the person the particular claimant whose sincere exercise of religion is being substantially burdened. Holt v. Hobbs, 135 S. Ct. 853, 863 (2015) (citing Hobby Lobby, 134 S. Ct. at 2779) (quotation marks omitted). This is an exacting test and the government carries a high burden. The Supreme Court has defined a compelling interest as only those interests of the highest order. McAllen Grace, 764 F.3d at 472 (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)) (quotation marks omitted). Here, the government asserts, and the majority agrees, that the burden placed on Mr. Redwing by BGEPA and its regulations is in furtherance of its compelling governmental interest to fulfill the Federal government s obligation to protect the interests of federally recognized tribes. However, while I would find that the government has a compelling interest in preserving and protecting the cultural and religious practices of American Indians, I cannot find that the much narrower 18

19 interest of protecting only members of federally recognized tribes rises to the level of a compelling interest. First, the government misreads the compelling interest that the exemptions in BGEPA were enacted to serve: protecting the ability of American Indians to freely practice their traditional religions. This encompasses all American Indians with sincere religious beliefs, not only members of federally recognized tribes, as reflected in the very language of BGEPA. The restriction of BGEPA s exception for the religious practices of Indian tribes to members of only federally recognized tribes does not stem from the text of BGEPA itself, but rather reflects how the government has chosen to interpret BGEPA. As the U.S. Court of Appeals for the Fifth Circuit noted, it was not until 1999, over three decades after the amendment [creating an exception to BGEPA for the religious purposes of Indian tribes] was enacted, that the Secretary [of the Interior] promulgated regulations requiring that individuals seeking permits must demonstrate that they are members of federally recognized Indian tribes. McAllen Grace, 764 F.3d at 470, 474 (citing 50 C.F.R (a)(5)(2000)); see also Gonzales, 957 F. Supp. at 1228 n.5 ( I do note, however, that the statutes do not compel the government to obtain the information the regulations exact from an applicant ). However long-standing this government policy may be, 14 there is no compelling reason behind it. Second, while some courts have held that the government s interest in specifically protecting federally recognized tribes is a compelling one, others have arguably recognized that the compelling interest behind BGEPA encompasses an interest in protecting American Indian cultures and religions more broadly. See Hardman, 297 F.3d at 1129; see also Wilgus, 638 F.3d 14 See Memorandum from the Office of the Att y Gen. to Assistant Att y Gen., Env t and Natural Res. Div., supra page

20 at (discussing Hardman and acknowledging that Hardman recognized a broader iteration of the government s compelling interest). I would hold that the government s asserted interest is too narrowly defined to amount to a compelling interest that would justify the imposition of a substantial burden on Mr. Redwing s free exercise of religion. 2. Least Restrictive Means Even if I were to agree with the majority that the government has a compelling interest in protecting the ability specifically of federally recognized American Indian tribes to practice their religion, BGEPA and its regulations, limiting permits for the taking of eagles to members of federally recognized tribes, are not the least restrictive means of furthering that interest. In strict scrutiny cases, the government bears the burden of demonstrating that the alternative measures would fail to achieve their interests, not simply that the chosen route is easier. McAllen Grace, 764 F.3d at 479 (citing McCullen, 134 S. Ct. at 2540, and noting that [a]lthough a free speech case, McCullen makes clear that the Department s burden is heavier than simply showing that the current regulation works to effectuate its interests. ). In the case before us, the government argues in part that it must restrict the issuance of permits for eagles and eagle parts to members of federally recognized tribes because otherwise the limited supply of eagles and eagle parts and the delays in obtaining permits will be significantly exacerbated. Other courts have rightfully rejected this argument and this court should similarly reject it. The potential harm asserted by the government is one of the government s own making: the alleged harm to members of federally recognized tribes is caused by the system the government has created because the repository that it established and runs is inefficient. McAllen Grace, 764 F.3d at 479. The government thus cannot claim that BGEPA and its regulations are the least restrictive means of achieving its compelling interests simply 20

21 because other alternatives will exacerbate a problem of the government s making or would require more effort and the development of a better system to carry out the statute. Finally, as the Tenth Circuit has noted, the Supreme Court, while recognizing the government s relationship with federally recognized tribes, has not embraced the concept that such a relationship alone can justify granting religious exceptions for them while denying other religious groups the same, or similar, accommodations. McAllen Grace, 764 F.3d at 474 (citing Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, (2006)). Moreover, [t]he very existence of a government-sanctioned exception to a regulatory scheme that is purported to be the least restrictive means, can, in fact, demonstrate that other, lessrestrictive alternatives could exist. McAllen Grace, 764 F.3d at 476 (citing Hobby Lobby, 134 S. Ct. at ). While the majority recognized that this case involved the delicate balancing of respect for American Indian religious practices and important government functions, I believe it erroneously held that BGEPA and its regulations achieves an acceptable balance. As Professor Tim Pleasant, an expert on Indian law, stated, Asking an Indian to go to the federally controlled Repository to get eagle feathers can be like telling the Jewish side of my family that they would have to go get a federally approved menorah with which to celebrate Hannukah, or requiring a Catholic to get a government-supplied rosary... and making them wait three years or more to get them. Andrew Cohen, If Obama is Serious About American Indians, He ll Offer More than Eagle Feathers, THE ATLANTIC, Dec. 2, 2011, Here, Mr. Redwing is completely excluded from even that problematic process, unable to legally obtain eagle feathers that the government does not dispute he requires for the practice of his religion. That 21

22 would seem to be far from the least restrictive means of achieving the government s stated interests. Accordingly, I would find that, even if BGEPA furthers compelling governmental interests, it is not the least restrictive means of doing so as applied to members of Staterecognized Indian groups, and as such BGEPA is in violation of RFRA. B. NAGPRA Claim I disagree with the majority that the dead bald eagle is not a sacred object under NAGPRA and that, consequently, BGEPA controls this case, rather than NAGPRA. The dead bald eagle is a sacred object. We give the words of a statute their ordinary, contemporary, common meaning absent an indication Congress intended them to bear some different import. William v. Taylor, 529 U.S. 420, 431 (2000) (citing Walters v. Metropolitan Ed. Enterprises, Inc., 519 U.S. 202, 207 (1997) (quoting Pioneer Investment Services Co. v. Brunswick Associated Ltd. Partnership, 507 U.S. 380 (1993)). Sacred objects are defined under NAGPRA as specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents. 25 U.S.C. 3001(3)(c). Nowhere in NAGPRA, the legislative history of NAGPRA, the regulations implementing NAGPRA, or the preamble to the final NAGPRA regulations is the expression specific ceremonial objects further defined or otherwise explained. While the majority argues that the common definition of specific encompasses only non-fungible goods, by its dictionary definition, specific also refers to a particular item. See Specific, MERRIAM-WEBSTER DICTIONARY, (last visited Oct. 13, 2016). Moreover, sacred objects is intended to include both objects needed 22

23 for ceremonies currently practiced by traditional Native American religious practitioners and objects needed to renew ceremonies that are part of traditional religions and the operative part of the definition [of sacred objects] is that there must be present day adherents in either instance U.S.C.C.A.N. at Per the uncontested facts, both the Tribe and the Band specifically require eagle parts to perform traditional religious ceremonies. Thus, by common understanding and usage, in the instant case, the dead bald eagle is a specific ceremonial object, and as it is needed by the Tribe s traditional religious leader for the practice of the Tribe s traditional religion by its present-day adherents, it is a sacred object under NAGPRA. Even if the meaning of the sacred object were merely in doubt, I would still find that NAGPRA governs the instant case. According to longstanding canons of statutory construction, statutes passed for the benefit of American Indian tribes, such as NAGPRA, are to be liberally construed, with doubtful expressions being resolved in favor of American Indians. South Dakota v. Bourland, 508 U.S. 679, 687 (1993); County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 269 (1992); Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Eng g, 467 U.S. 138, 149 (1984); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985); Wilson v. Omaha Indian Tribe, 442 U.S. 653, 666 (1979); Bryan v. Itasca County, 426 U.S. 373, 392 (1976); Alaska Pacific Fisheries v. U.S., 248 U.S. 78, 89 (1918). The Tribe understands the dead bald eagle to be a sacred object. Consequently, if there is any doubt about the meaning of this expression, it should be construed according to the Tribe s understanding. Accordingly, consistent with NAGPRA, the ownership or control of the dead bald eagle is with the Tribe because the dead eagle is a sacred object that was discovered on the tribal land of the Tribe after November 16, 1990 and all the other requisite elements of 25 U.S.C are likewise satisfied. In light of the fact that NAGPRA controls, it is also clear that the Tribe, which 23

24 relinquishes control of a sacred object under 3002(e), also has the authority to determine the disposition of such object. Pursuant to the Indian canon of construction and in light of NAGPRA s purpose to return control over cultural items, including sacred objects, to Tribes, the Tribe should have the ability to decide to whom such control will be relinquished. Thus, I would find that Mr. Redwing s possession of the bald eagle feathers is permitted, and his conviction must be reversed and dismissed Finding that NAGPRA, not BGEPA, applies in the instant case, and allowing the tribe on whose reservation an eagle was taken to determine for itself how to proceed, is in line with current policies towards American Indians set forth by Congress and the Executive. Today, Congress and the agencies treat tribes as governments for whom religious cultural traditions are constitutive elements and work with them to negotiate accommodations. The Clinton, Bush, and Obama administrations have ordered agencies to develop procedures and policies for accommodating tribal needs, and have issued special directives on Indian sacred sites and eagle feathers. 45 Conn. L. Rev. at , (footnotes and citations omitted). The actions taken by the agencies and federal officials charged with upholding BGEPA continue to demonstrate a shifting interpretation of the governmental purpose behind BGEPA and the relationship between the government and American Indians. As one commentator noted, Given that many... religious uses of eagles occur in reservation communities, it seems particularly appropriate to defer to tribal government jurisdiction. 45 CONN. L. REV. at 464. Since the 1970s, Congress has repudiated its historical suppression of Indian religions and mobilized its plenary power and trust duties in support of tribal self-determination and religious freedoms. 45 CONN. L. REV. at 399. In recent times, this has led to a reevaluation of longstanding, and often 24

25 discriminatory, policies and increased cooperation with, and deference and respect shown to, American Indians. The decision reached by the majority is not only contrary to current law, but it is also a violation of the spirit of this increased cooperation with American Indians. Consequently, for all the foregoing reasons, I would reverse Mr. Redwing s conviction. 25