                                                                                        [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                     FILED
                            FOR THE ELEVENTH CIRCUIT                         U.S. COURT OF APPEALS
                                                                               ELEVENTH CIRCUIT
                              _________________________________________
                                                                                 AUGUST 21, 2000
                                                                                THOMAS K. KAHN
                                                                                     CLERK
                                         No. 99-13200
                              _________________________________________



                         D.C. Docket No. 95-08049-CV-DTKH

HARVEY (FIRE BIRD) GIBSON,
                                                                            Plaintiff-Appellant,

                                              versus

BRUCE BABBITT, as Secretary of the United States Department of Interior,
B.D. OTT, Area Director, as Acting Area Director of the Eastern Area Office
of the Bureau of Indian Affairs,
                                                         Defendants-Appellees.

                             ____________________________________________




                      Appeal from the United States District Court
                          for the Southern District of Florida
                             ___________________________________________




                                      (August 21, 2000)


Before ANDERSON, Chief Judge, DUBINA and SMITH*, Circuit Judges.
PER CURIAM:

   *
     Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting by
designation.
      Harvey (Fire Bird) Gibson applied to the United States Fish and Wildlife

Service for five bald or golden eagle feathers to use in religious ceremonies. Gibson's

application was denied because he is not a member of a federally recognized Indian

tribe, and thus did not qualify for the exemption to the Bald and Golden Eagle

Protection Act ("BGEPA"), 16 U.S.C. § 668a (1994), which provides:

         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 . . . [the
      Secretary of the Interior] may authorize the taking of such eagles
      pursuant to regulations which he is hereby authorized to prescribe . . .
      Provided further, That bald eagles may not be taken for any purpose
      unless, prior to such taking, a permit to do so is procured from the
      Secretary of the Interior . . . .

Pursuant to 50 C.F.R. § 22.22, the exemption to the BGEPA is limited to Indians who

are members of federally recognized tribes. See id. § 22.22(a)(5) (requiring that an

applicant for a permit "attach a certification of enrollment in an Indian tribe that is

federally recognized under the Federally Recognized Tribal List Act of 1994, 25

U.S.C. 479a-1").

      After the denial of his application, Gibson filed suit in the United States District

Court for the Southern District of Florida, alleging that the United States'

("Government's") refusal to provide him with eagle feathers violates his rights under

the First Amendment to the United States Constitution and the Religious Freedom

Restoration Act, 42 U.S.C. § 2000bb et seq. ("RFRA"). The district court issued a


                                            2
final judgment order holding that the requirement of membership in a federally

recognized Indian tribe is a permissible agency policy which does not violate the

RFRA. See Gibson v. Babbitt, 72 F. Supp. 2d 1356 (S.D. Fla. 1999). The district

court did not directly address the issue whether the requirement violated the Free

Exercise Clause of the First Amendment. Gibson now appeals to this court. We have

jurisdiction pursuant to 28 U.S.C. § 1291.

      The test under the RFRA is the compelling interest test, which requires that all

laws that substantially burden a person's exercise of religion be (1) in furtherance of

a compelling governmental interest; and (2) the least restrictive means of furthering

that compelling governmental interest. See 42 U.S.C. § 2000bb-1.

      The district court found, and the parties do not dispute, that the regulation

restricting the exemption to members of a federally recognized Indian tribe constitutes

a substantial burden on Gibson's free exercise of his religion. See Gibson, 72 F. Supp.

2d at 1360. The trial court then correctly shifted the burden to the Government to

demonstrate that the regulation was in furtherance of a compelling governmental

interest, and that the regulation furthers that compelling interest using the least

restrictive means. See id.

      The Government contended that it had three compelling governmental interests

that it sought to achieve by requiring an applicant to be a member of a federally

recognized Indian tribe, consisting of the following: (1) the compelling governmental


                                          3
interest that led to the enactment of the BGEPA: the preservation of two endangered

species of eagles; (2) the preservation of Native American religions; and (3) the

obligation of the United States to fulfill pre-existing treaty commitments to federally

recognized Indian tribes. See id. The district court reasoned that in light of the

Constitution's grant of authority in the Indian Commerce Clause, U.S. Const. art. I, §

8, cl. 3, the BGEPA's religious purpose clause preserves and protects Native American

religions, and is a compelling governmental interest. See Gibson, 72 F. Supp. 2d at

1360. In addition, the district court reasoned that "by providing bald and golden eagle

parts to federally recognized Indian tribes, the United States . . . is fulfilling a pre-

existing treaty obligation to the tribes." Id. Thus, the district court found "that the

[Government] has met its burden of establishing compelling governmental interests."

Id. at 1361.

      We agree with the district court's finding that the Government has met its

evidentiary burden of proving that it has a compelling governmental interest in

fulfilling its treaty obligations with federally recognized Indian tribes. Because we

have determined that the Government has met its burden of proving at least one

compelling governmental interest, we need not address the issue whether the

preservation of Native American religions is a compelling governmental interest, and

save that discussion for another day. Therefore, the issue on appeal narrows to

whether the regulation limiting applicants for eagle parts to members of federally


                                           4
recognized Indian tribes is the least restrictive means of furthering the United States'

treaty obligations with the federally recognized Indian tribes.

       The record before us indicates that the demand for eagle parts exceed 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, and the district court found, that there is a sizeable pool of individuals who

are similarly situated to Gibson. See Gibson, 72 F. Supp. 2d at 1361. 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 efforts to fulfill its treaty obligations to federally recognized

Indian tribes. Therefore, we agree with the district court that the Government has met

its evidentiary burden of proving that the requirement restricting the exemption to the

BGEPA to members of a federally recognized Indian tribe is the least restrictive

means of furthering that compelling governmental interest, and we affirm the district

court's decision. By the same test, we hold that the membership requirement does not

violate the Free Exercise Clause of the First Amendment.

                                      AFFIRMED.




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