                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                   PUBLISH
                                                                       AUG 8 2001
                  UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                           Clerk
                                TENTH CIRCUIT



 In the Matter of: JOSELUIS SAENZ,

       Claimant - Appellee,
 vs.                                                 No. 00-2166

 DEPARTMENT OF INTERIOR,

       Defendant - Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW MEXICO
                         (D.C. No. 99-21-M)


Peter Schoenburg (Jerilyn DeCoteau and Larane Arbaugh, Student Attorney,
University of Colorado at Boulder, School of Law, Indian Law Clinic, Boulder,
Co., on the brief), Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg &
Enfield, Albuquerque, New Mexico, for Claimant - Appellee.

Jared A. Goldstein (Lois J. Schiffer, Assistant Attorney General, Sasha Siemel
and E. Ann Peterson, U.S. Department of Justice, Washington, D.C.; Of Counsel:
John D. Leshy, Solicitor, Mary Anne Kenworthy, Benjamin C. Jesup and Janet
Spaulding, Department of the Interior, Washington, D.C., on the briefs), for
Defendant - Appellant.


Before KELLY, MCKAY, and MURPHY, Circuit Judges.


KELLY, Circuit Judge.
      Defendant-appellant, the United States Department of Interior (“the

government”) appeals from the district court’s order granting Joseluis Saenz’s

Fed. R Crim. P. 41(e) motion requesting the return of Mr. Saenz’s eagle feathers

and other related religious items. We have jurisdiction pursuant to 28 U.S.C. §

1291 and we affirm.



                                    Background

      Mr. Saenz, the plaintiff-appellee, is descended from the Chiricahua tribe of

Apache Indians. Although originally recognized as a tribe by the United States

government and restricted to a reservation, the Chiricahua reservation was

dissolved in 1886 after the outbreak of warfare between the Apache and the U.S.

Aplee. App. at 66-69. After many leaders of the Apache surrendered to the U.S.,

many Chiricahua, including Mr. Saenz’s ancestors, refused to surrender and fled

to Mexico. Mr. Saenz’s family returned to the U.S. in the 1930s. Aplee. Br. at 5.

The Chiricahua Indians are not currently a federally-recognized Indian tribe.

      Mr. Saenz follows the beliefs and traditions of the Chiricahua Apache

religion and “has traveled throughout North America to dance and participate in

Native religious events.”   Id. Mr. Saenz estimates that before the summer of

1996, he danced in approximately fifteen pow-wows per year. Aplt. App. at 74

(testimony of Mr. Saenz). Eagle feathers are an integral part of his religious


                                         -2-
practices. Id. at 61, 75-77. In 1996, while New Mexico state officials were

executing a search warrant at Mr. Saenz’s home, the officers noticed items with

eagle feathers hanging on the walls.   1
                                           Mr. Saenz had obtained these feathers as

gifts. See e.g. , id. at 77, 79, 81-82. After contacting the United States Fish and

Wildlife Service (“FWS”) and determining that Mr. Saenz did not have a permit

for the feathers, as required by regulations issued under the Bald and Golden

Eagle Protection Act (“BGEPA”), 16 U.S.C. § 668, the officers seized the items

with eagle feathers and sent them to the FWS office in Albuquerque. After

attempting to get his feathers back through administrative proceedings, Mr. Saenz

filed a motion in federal district court under Fed. R. Crim. P. 41(e) for the return

of property seized by a search warrant. In his motion, Mr. Saenz argued that he

had a right to possess the eagle feathers under the BGEPA and the Religious

Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb-2000bb-4, as well as

under the Free Exercise and Equal Protection Clauses.

       The BGEPA prohibits the taking or possession of any bald or golden


      1
        Mr. Saenz testified that all the eagle feathers that were seized were golden
eagle feathers. Aplt. App. at 63-64. The items seized from Mr. Saenz were: three
eagle feathers, one staff with an eagle foot and seven eagle feathers, one eagle
feather with a beaded shaft, one shield with horsehair and four eagle feathers, one
fan with twelve eagle feathers, six eagle feathers tied together with rawhide, one
small dream catcher with four generic bird “fluffies,” one quiver and four arrows
with one eagle feather and twelve raptor feathers, one bustle with ninety-four
eagle feathers and ten “fluffies,” and a framed print with one eagle feather. Id. at
201-02.

                                            -3-
eagles or parts of bald or golden eagles except as permitted by the Secretary of

the Interior (“the Secretary”). 16 U.S.C. § 668. The BGEPA authorizes the

Secretary to permit the taking, possession, and transportation of eagles and eagle

parts in certain circumstances (e.g. scientific and exhibition purposes), including

“for the religious purposes of Indian tribes.”          § 668a. The Secretary is authorized

to promulgate regulations for when such permits shall issue, as long as the

Secretary has determined that the permits are “compatible with the preservation

of the bald eagle or the golden eagle . . . .”         Id. The statute does not define the

terms “religious purposes” or “Indian tribes.”

       In 1963, the Secretary first issued regulations establishing a permit

program under the “Indian tribes” exception. As originally issued, the

regulations provided that permits could be issued “to those individual Indians

who are authentic, bona fide practitioners of such religion.”           See 50 C.F.R. §

11.5 (1964). In 1974, the Secretary revised the regulations, requiring that

applicants “attach a certification from the Bureau of Indian affairs that the

applicant is an Indian.”    See 50 C.F.R. § 22.22(a)(5), (6) (1975).

Not until 1981, eighteen years after the regulations were first enacted, was the

requirement that an applicant be a member of a federally-recognized Indian tribe




                                                 -4-
clearly articulated.   2
                           In 1981, after a member of an Indian tribe that was not

federally recognized requested a permit for eagle feathers, the Deputy Solicitor of

the Interior issued a memorandum which stated that only federally-recognized

Indian tribes constituted “Indian tribes” under the BGEPA.        Id. at 3-4; Aplt. App.

at 189. It was only in 1999 that the regulatory language was changed to clearly

reflect the requirement that an applicant must be a member of a federally-

recognized Indian tribe.       See 50 C.F.R. § 22.22 (1999).

       In 1996, the year the FWS seized Mr. Saenz’s eagle feathers, the

regulations stated that an applicant under the “Indian tribes” exception must

provide the FWS: (1) the species and number of eagles or feathers proposed to be

taken or acquired by gift or inheritance; (2) the state and local area where the

taking is proposed to be done, or from whom acquired; (3) the name of the tribe



       2
         At oral argument and in its reply brief, the government stated that the
requirement that an applicant be a member of a federally-recognized Indian tribe
has been in place since 1974. See Aplt. R. Br. at 17. The government asserts that
since 1974 the BIA has only issued certificates to those applicants who are
members of federally-recognized Indian tribes. However, the government’s initial
brief implies that the “federally-recognized” requirement was only articulated in
1981, see Aplt. Br. at 3, and the only evidence the government submits on this
topic, a 1981 opinion letter from the Office of the Solicitor, see Aplt. App. at 189,
supports this latter interpretation. Therefore, we will assume for the purposes of
this opinion, that the “federally-recognized” requirement was put in place in
1981, eighteen years after the Secretary first issued regulations under the “Indian
tribes” exception to the BGEPA. We also note that, even if the “federally-
recognized” requirement had been implemented in 1974, the permit system had
already operated for eleven years without such a requirement.

                                             -5-
with which the applicant is associated; (4) the name of the tribal religious

ceremony(ies) for which the feathers are required; (5) a certification from the

BIA that the applicant is an Indian; and (6) a certification from a duly authorized

official of the religious group that the applicant is authorized to participate in

such ceremonies.   See 50 C.F.R. § 22.22 (1996). It is uncontested that in 1996

the BIA would only issue the required certification to members of federally-

recognized Indian tribes.

       In 1999, the regulations were amended to clearly reflect the requirement

that the applicant be a member of a federally-recognized Indian tribe. In

addition, the requirement that an applicant submit certification from a duly

authorized official of the religious group that the applicant is authorized to

participate in the religious ceremonies was dropped.   3
                                                           See 50 C.F.R. § 22.22

(1999). The current regulations state that in addition to the first four

requirements listed in the 1996 regulations, the applicant must attach “a

certification of enrollment in an Indian tribe that is federally recognized under

the Federally Recognized Tribal List Act of 1994 (“List Act”), 25 U.S.C. 479a-1,

108 Stat. 4791 (1994).    See 50 C.F.R. § 22.22 (2001). The only requirement that


      3
        The FWS regional director for the southwest region testified that in New
Mexico, a permit applicant may voluntarily send in a “Certificate of
Participation” from a tribal elder which states that the applicant is qualified to
participate in the religious ceremony, but that such a certificate is not required.
Aplt. App. at 108-09 (testimony of Nancy Kaufman).

                                          -6-
the government asserts Mr. Saenz cannot meet is the requirement that the

applicant must be a member of a federally-recognized Indian tribe. Neither the

government nor Mr. Saenz distinguishes the 1996 version from the current

version of the regulations, nor will we. We will assume, for the purposes of this

opinion, that in order for Mr. Saenz to have obtained a permit during the relevant

time period, he must have been a member of an Indian tribe that is federally

recognized under the List Act.

      In evaluating requests, the FWS considers: (1) “[t]he direct or indirect

effect which issuing such permit would be likely to have upon the wild

populations of bald or golden eagles”; and (2) “[w]hether the applicant is an

Indian who is authorized to participate in bona fide tribal religious ceremonies.”

Id. 4 Applications are processed at FWS’s regional migratory bird permit offices,

and, when approved, are forwarded to the National Eagle Repository in

Commerce City, Colorado. The Repository receives eagles and eagle parts and

distributes them to persons with valid permits on a first-come, first-serve basis,

although some exceptions are made for death ceremonies requiring eagle parts

immediately. FWS distributes eagle parts within days of receiving them, but the

demand exceeds the supply. On average, successful permit applicants wait three



      4
          These evaluation criteria were in place throughout the relevant time
period.

                                         -7-
years for a whole eagle carcass and six to nine months to receive loose feathers.

Aplt. Br. at 6; Aplt. App. at 112 (testimony of FWS regional director Nancy

Kaufman).

      The other statute at issue in this case, RFRA, provides:

      Government may substantially burden a person’s exercise of religion only
      if it 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(b). Under RFRA, the plaintiff must first prove that the

government’s action has substantially burdened a sincerely-held religious belief.

United States v. Meyers , 95 F.3d 1475, 1482 (10th Cir. 1996). If the plaintiff

meets that standard, the burden shifts to the government to prove that recognition

of an exception from the statute would impede the government’s compelling

interests and that the statute furthers those interests by the “least restrictive

means.” Id.

      In March 2000, the district court issued an order granting Mr. Saenz’s Rule

41(e) motion. Aplt. App. at 194. The district court based its decision solely on

the BGEPA and RFRA and did not reach the constitutional issues.         Id. at 194-95.

As for the “Indian tribes” exception under the BGEPA, the district court found

that “[w]hile the exception can be read, as argued in this case, as Congress

protecting the sovereign-to-sovereign relationship due those Indian tribes the


                                          -8-
United States has recognized as politically independent, it can also be viewed as

Congress (a) recognizing the importance of the eagle to Indian religious practices

generally and (b) taking steps not to inhibit the individual free exercise of

religion where the eagle is essential to religious expression and total restriction is

unnecessary.” Id. at 204. Based on this latter view, the district court held that

“[t]he government’s refusal to find Saenz to be an Indian practicing an Indian

religion ignores plain facts, belittles sincere religious beliefs and unreasonably

restricts the access to eagle feathers intended by the exception to the BGEPA.”

Id. at 208.

      As for the permit system itself, the district court found that:

      In the end, it appears the present permit system is designed not to enhance
      the government’s position with federally-recognized tribes, to serve tribes’
      governmental purposes, to implement the statutory exception in the fairest
      manner possible, or to place the least constraint on the free exercise of
      religion; the present permit system appears designed to minimize the work
      Congress has handed the agency. Administrative expediency, however,
      does not constitute a compelling governmental interest that justifies either
      intrusion into religious beliefs or regulations which unreasonably restrict
      express statutory provisions. None of what the government presents in this
      case justifies denying an Indian practitioner of an Indian tribal religion
      access to eagle feathers.


Id. at 213.

      Under the district court’s RFRA analysis, the court found that the

government had a single compelling interest, the preservation of bald and golden

eagles. Id. at 216. The court held that this compelling interest was not being

                                         -9-
furthered by the least restrictive means, stating that:

      [i]n many respects, what the government proposes as justification for its
      eagle permit regulations does not address the interests of conservation at
      all. In all respects, the government’s approach makes no attempt to
      accommodate the right of an individual to the free exercise of religion or to
      recognize the fundamental nature of the eagle to   all Native Americans who
      practice a traditional Indian religion. At best, the eagle permit scheme is
      not “the least restrictive means” to the necessary end. At worse, it may not
      be a means to any legitimate end. It fails to take into account mandatory
      considerations. It constrains the free exercise of religion without cause
      and it violates [RFRA].

Id. at 217 (emphasis in original).

      The government raises two issues. First, the government argues that the

district court failed to give deference to the Secretary’s reasonable interpretation

of the BGEPA’s “Indian tribes” exception as required by       Chevron, U.S.A., Inc. v.

Nat’l Resources Defense Council, Inc.    , 467 U.S. 837 (1984). Aplt. Br. at 27.

Second, the government asserts that restricting eagle permits to members of

federally-recognized Indian tribes is the least restrictive means of furthering the

government’s compelling interests.      Id. at 30. The government does not contest

that Mr. Saenz is a Chiricahua Indian, a sincere practitioner of the Chiricahua

Apache religion, or that the BGEPA substantially burdens his religious beliefs.

Id. at 8, 15, 31 n.8. The government’s argument is simply that restricting the

“Indian tribes” exception to members of federally-recognized tribes is     the least

restrictive means of furthering the government’s compelling interests in eagle

conservation and fulfilling its treaty obligations to Indian tribes under RFRA.

                                          - 10 -
Because we hold that the current regulations violate RFRA, we do not reach the

Chevron analysis.



                                         Discussion

       We review the grant of a Rule 41(e) motion for an abuse of discretion.

United States v. Grover , 119 F.3d 850, 851 (10th Cir. 1997);      United States v.

Deninno , 103 F.3d 82, 84 (10th Cir. 1996). Under this standard, we do not defer

to the district court’s legal conclusions.     See Koon v. United States , 518 U.S. 81,

100 (1996) (“A district court by definition abuses its discretion when it makes an

error of law. . . . The abuse-of-discretion standard includes review to determine

that the discretion was not guided by erroneous legal conclusions.”). The

government states that it “solely challenges the district court’s legal conclusions .

. . .” Aplt. Br. at 13.

I. Standing

       At the outset, the government argues that Mr. Saenz does not have standing

to bring an as-applied challenge to the permit process itself as he failed to

actually apply for a permit. Aplt. Br. at 16 (citing    United States v. Hugs , 109

F.3d 1375, 1378 (9th Cir. 1997)). Mr. Saenz does not contest that he did not

apply for a permit. However, Mr. Saenz argues that because it would have been

futile for him to apply for a permit, he nonetheless has standing to bring an as-


                                             - 11 -
applied challenge.    See Prayze FM v. FCC , 214 F.3d 245, 251 (2d Cir. 2000)

(“This threshold requirement for standing may be excused only where a plaintiff

makes a substantial showing that application for the benefit . . . would have been

futile.”) (internal quotations and citation omitted);   Ellison v. Connor , 153 F.3d

247, 255 (5th Cir. 1998) (same);     Desert Outdoor Adver., Inc. v. City of Moreno

Valley , 103 F.3d 814, 818 (9th Cir. 1996) (“[Appellants]. . . have standing to

challenge the permit requirement, even though they did not apply for permits,

because applying for a permit would have been futile.”) (citation omitted);     see

also Lac Vieux Desert Band of Lake Superior Chippewa Indians v. Michigan

Gaming Control Bd. , 172 F.3d 397, 406 (6th Cir. 1999) (“The law recognizes . . .

that a plaintiff need not make costly futile gestures simply to establish standing,

particularly when the First Amendment is implicated.”) (citations omitted).

       We agree. As the district court stated, “nothing Saenz presents to the

government can establish to the government’s satisfaction that he is genuinely

Indian. . . .[E]ven though Saenz has produced credible proof that he is Indian and

uses eagle feathers as an essential part of the exercise of an Indian religion, the

FWS will not consider his evidence.” Aplt. App. at 200. Permits are only given

to members of federally-recognized Indian tribes–there are no discretionary

exceptions. Because Mr. Saenz is not a member of a federally-recognized tribe,

his application would have been futile. Therefore, we hold that Mr. Saenz has


                                            - 12 -
standing to bring an as-applied challenge.




II. RFRA

       Under RFRA,     5
                           Mr. Saenz “must establish, by a preponderance of the

evidence, three threshold requirements to state a prima facie free exercise claim.”

Meyers , 95 F.3d at 1482. Mr. Saenz must show that the government has (1)

substantially burdened (2) a sincerely-held (3) religious belief.         Kikumura , 242

F.3d at 960; Meyers , 95 F.3d at 1482. In this case, the government concedes that

Mr. Saenz has established his prima facie case.        See Aplt. Br. at 31 n.8 (“The

United States does not contest that Mr. Saenz sincerely seeks to possess eagle

feathers for religious purposes or that the seizure of his eagle feathers

substantially burdens his exercise of religion.”). Therefore, the burden shifts to

the government to “demonstrate that the challenged regulation furthers a

compelling state interest in the least restrictive manner.”         Meyers , 95 F.3d at 1482

(citation omitted). It is important to note that “under RFRA, a court does not

consider the . . . regulation in its general application, but rather considers



       5
        Although the Supreme Court found RFRA to be unconstitutional as
applied to the states, City of Boerne v. Flores, 521 U.S. 507, 536 (1997), we have
upheld its constitutionality when applied to the federal government. Kikumura v.
Hurley, 242 F.3d 950, 958-59 (10th Cir. 2001).

                                            - 13 -
whether there is a compelling government reason, advanced in the least

restrictive means, to apply the . . . regulation to the   individual claimant.”

Kikumura , 242 F.3d at 962 (emphasis added).

       A. Compelling Interests

       In this case, the government asserts two compelling interests on appeal:

eagle conservation and the fulfillment of trust and treaty obligations to the

federally-recognized Indian tribes.     6
                                            Aplt. Br. at 31. The district court held that

the government only had a single compelling interest in the context of the

BGEPA–the conservation of golden and bald eagles. Although we agree that the

government has failed to prove its compelling interest in trust and treaty

obligations, we disagree with the district court to the extent that we find the

record insufficient to determine whether the government still has a compelling



       6
        Mr. Saenz argues that the government did not assert its alleged
compelling interest in the fulfillment of its trust and treaty obligations to the
federally-recognized Indian tribes in the district court and, therefore, has waived
this argument on appeal. Aplee. Br. at 30. We disagree. Although the
government may have phrased its alleged compelling interest in fulfilling treaty
obligations to the federally-recognized tribes differently below, the substance of
the argument is there and there is no waiver. See Aplt. App. at 214-215
(government’s assertion that it had compelling interests “in preserving Indian
religious practices by limiting the scarce supply of eagle feathers and parts to the
religious practices of members of federally recognized tribes,” “preserving and
supporting the ‘unique legal status’ of Indian tribes,” and in “[e]nsuring that
members of federally recognized Indian tribes continue to have access to eagle
feathers”) (district court opinion, internal quotations omitted, alteration in
original).

                                             - 14 -
interest in eagle conservation.

              1. Asserted Interest in Trust and Treaty Obligations

       In its brief, the government simply asserts that it has a compelling interest

in fulfilling trust and treaty obligations to the federally-recognized Indian tribes.

The government cites to three Supreme Court cases,         Bd. of County Com’rs of

Creek County v. Seber , 318 U.S. 705 (1943); Worcester v. Georgia , 31 U.S. 515

(1832); Cherokee Nation v. Georgia , 30 U.S. 1 (1831), all of which support the

proposition that the federal government has a general duty to protect the

federally-recognized tribes as “domestic dependent nations,”         Cherokee Nation ,

30 U.S. at 17, but do not delineate that duty in any detail.    See , e.g. , Seber , 318

U.S. at 715 (“In the exercise of the war and treaty powers, the United States

overcame the Indians and took possession of their lands, sometimes by force,

leaving them an uneducated, helpless and dependent people needing protection

against the selfishness of others and their own improvidence. Of necessity the

United States assumed the duty of furnishing that protection and with it the

authority to do all that was required to perform that obligation and to prepare the

Indians to take their place as independent, qualified members of the modern body

politic.”).

       The government primarily relies on       Gibson v. Babbitt , 223 F.3d 1256,

1258 (11th Cir. 2000), which held that      the government had a compelling interest


                                            - 15 -
in “fulfilling its treaty obligations with federally recognized Indian tribes” in the

context of the BGEPA. The Eleventh Circuit based this result on the district

court’s analysis that the BGEPA was meant to be a substitute for tribes’

abrogated hunting treaty rights.     Id. (citing Gibson v. Babbitt , 72 F. Supp. 2d

1356, 1360-61 (S.D. Fla. 1999)). The district court had reasoned that, “by

providing bald and golden eagle parts to federally recognized Indian tribes, the

United States–albeit in a substituted fashion–is fulfilling a pre-existing treaty

obligation to the tribes.” 72 F. Supp. 2d at 1360. The district court cited no

authority for this conclusion.     See 72 F. Supp. 2d at 1360-61. We disagree with

this analysis .

       We do not think that the purpose of the BGEPA’s “Indian tribes” exception

is to serve as a statutory substitute for certain abrogated treaty hunting rights. In

United States v. Dion , 476 U.S. 734, 743-45 (1986), the Court held that the

BGEPA abrogated Native American treaty rights to hunt eagles. Just because the

BGEPA abrogated certain rights does not mean that the “Indian tribes” exception

to the BGEPA was meant to replace those rights. The plain language of the

exception supports this interpretation. The exception is for “the religious

purposes of Indian tribes,” not for “the hunting purposes of Indian tribes.”

        It is clear in Dion that the Court was only addressing the issue in front of

it–whether the BGEPA had abrogated certain treaty hunting rights,        not whether a


                                           - 16 -
member of a federally-recognized tribe should have priority over other Native

Americans in obtaining eagle feathers for religious purposes. The Court stated:

      Congress expressly chose to set in place a regime in which the Secretary of
      the Interior had control over Indian hunting, rather than one in which
      Indian on-reservation hunting was unrestricted. Congress thus considered
      the special cultural and religious interests of Indians, balanced those needs
      against the conservation purposes of the statute, and provided a specific,
      narrow exception that delineated the extent to which Indians would be
      permitted to hunt the bald and golden eagle.

Id. at 743-44. We do not think that    Dion can be read to give a religious

preference to one group of Native Americans over another, especially as the

Court specifically stated that it was not considering any religious freedom issues.

Id. at 736 n.3. In addition, as the analysis of the legislative history behind the

BGEPA makes clear, Congress was concerned only with the hardship a complete

ban on possessing eagle parts would impose on Native American religious

ceremonies, not on treaty hunting rights.      See Dion , 476 U.S. at 740-44

(discussing legislative history).

      Other than citing to the above cases in its brief, the government introduces

no record evidence to prove what the federal government’s “trust and treaty”

obligations actually are, or whether they encompass providing federally-

recognized Indian tribes with eagle parts for religious practices. As the district

court points out, the government’s trust and treaty obligations usually encompass

“a duty to tribal government and a need to acknowledge tribal sovereignty . . . .”


                                            - 17 -
Aplt. App. at 215. However, in this case, “[t]he issue to be decided is not the

legitimacy of sovereign-to-sovereign relationships. This is an end only

tangentially tied to the BGEPA in the first place. The ultimate issue in this case

centers on the rights of an individual, not as against tribal governments, but as

against the United States.”     Id. Because we are not persuaded by the Eleventh

Circuit’s reasoning in   Gibson and because the government offers us no evidence

to the contrary, we hold that the government has failed to prove that it has a

compelling interest in fulfilling trust and treaty obligations in this context.

              2. Alleged Interest in Eagle Conservation

       The district court found the government’s compelling interest in eagle

conservation undisputed. Aplt. App. at 214. Certainly, case law seems to

support this proposition.     See , e.g. , Gibson , 72 F. Supp. 2d at 1360 (finding a

compelling interest in eagle preservation),       aff’d , 223 F.3d 1256 (11th Cir. 2000)

(failing to reach the issue but affirming on other grounds);       United States v. Hugs ,

109 F.3d 1375, 1378 (9th Cir. 1997);      United States v. Lundquist , 932 F. Supp.

1237, 1241 (D. Ore. 1996);      United States v. Thirty Eight (38) Golden Eagles or

Eagle Parts , 649 F. Supp. 269, 276-77 (D. Nev. 1986),         aff’d , 829 F.2d 41 (9th

Cir. 1987); see also Rupert v. Director, United States Fish & Wildlife Serv.        , 957

F.2d 32, 35 (1st Cir. 1992) (finding that the government has a “legitimate

governmental interest[]” in “protecting a dwindling and precious eagle


                                              - 18 -
population”). However, the above cited cases, with the possible exception of

Lundquist , 7 assumed the compelling governmental interest in eagle conservation

existed without evidentiary analysis.   8
                                            The record in this case is insufficient to

allow us to conduct a thorough inquiry. However, because this issue is

unnecessary to our disposition of the case, the inadequacy of the record is not

dispositive. Even if the government has a compelling interest in eagle

conservation, the government is not furthering that interest by the “least

restrictive means.” 42 U.S.C. § 2000bb-1(b)(2).

       B. Least Restrictive Means

       Assuming that the government has a compelling interest in eagle

conservation, under RFRA the government must prove that denying Mr. Saenz


       7
         The court in Lundquist based its finding that the government had a
compelling governmental interest in eagle preservation on a 1995 case, United
States v. Jim, 888 F. Supp. 1058, 1064 (D. Ore. 1995). According to the Jim
court, the fact “[t]hat the bald eagle is making a rebound does not mean that the
government does not maintain a compelling interest in its protection. There is no
proposal to delist the bald eagle anywhere in the country . . . .” Id. (citations
omitted). As discussed in note 8, there is now such a proposal.
       8
         We note two things. First, the golden eagle is not endangered. However,
because young golden eagles are very difficult to distinguish from young bald
eagles, and the two species are frequently confused, Congress included the golden
eagle within the protection of the BGEPA. See Aplt. Br. at 2 (citing Jim, 888 F.
Supp. at 1063). Second, in 1999, the FWS proposed a rule to remove the bald
eagle from the List of Endangered and Threatened Wildlife in the lower forty-
eight states. Proposed Rule to Remove the Bald Eagle in the Lower 48 States
from the List of Endangered and Threatened Wildlife     , 64 Fed. Reg. 36454 (July
6, 1999) (stating that “available data indicate that this species has recovered”).

                                            - 19 -
his eagle feathers “is the least restrictive means of furthering that compelling

governmental interest.”    Id. The government argues that restricting permits to

members of federally-recognized tribes meets this test for two reasons: (1)

“[a]llowing all persons of Indian heritage to possess eagle feathers, without

regard to membership in a recognized tribe, would undermine the United States’

obligations to the recognized tribes,” Aplt. Br. at 33; and (2) “significantly

increasing the number of persons authorized by law to possess eagle parts and

feathers would harm the United States’ interest in protecting eagle populations,

as it would likely lead to increased numbers of illegal eagle kills and increased

reliance on a black market for eagle parts.”        Id. at 35. Finally, the government

contends that deleting the federal recognition requirement from the permit

process would lead to equal protection and administrative concerns. We are not

persuaded by any of these arguments.

              1. Obligation to Federally-Recognized Tribes

       As we have already stated, the government has failed to define the United

States’ obligations to the recognized tribes in this context. As the district court

succinctly summarized, “the government has no compelling interest in preferring

the practices of any one Indian tribe over another on the basis of unrelated

distinctions in political status.” Aplt. App. at 218. Therefore, this argument

cannot serve as a justification for the current permit system.


                                           - 20 -
      Furthermore, we note that even if the government had proved that it had an

obligation to favor federally-recognized tribes in this context, the government

failed to prove at the motion hearing that this interest would be undermined if

Mr. Saenz prevails. The government’s basic argument is that opening the permit

process to all Native Americans, regardless of the political status of their

respective tribes, would swamp the permit process and create much longer delays

than already exist for eagle parts and feathers. Aplt. Br. at 33-34. However, the

government offered very little proof on this issue, and the district court found

that the government was not arguing from “a factual basis.” Aplt. App. at 217.

Because the government only appeals the district court’s legal conclusions,       see

Aplt. Br. at 13, the district court’s factual findings stand unchallenged.

      Other than speculative opinion testimony by an FWS regional director and

a member of the Mescalero Apache tribe that the deletion of the federally-

recognized requirement would cause the wait for eagle parts and feathers to

substantially increase, Aplt. App. at 112-13; Aplee. App. at 37-38, the

government offered two other items of evidence: (1) an estimate of the number of

members of federally-recognized tribes versus the number of Americans who

identify themselves as having Indian ancestry,     9
                                                       see Aplt. App. at 134 (testimony


      9
        According to testimony at the motion hearing, there are approximately 1.7
million members of federally-recognized Indian tribes. There are approximately
8.7 million Americans who identify themselves as having Native American

                                          - 21 -
of Iris Drew, Bureau of Indian Affairs), and (2) a report showing the number of

eagle orders filled for a one-year period from 1997 to 1998.    Id. at 187. The

government seems to believe that showing that there are substantially more

Americans who identify themselves as having Native American ancestry than

there are members of federally-recognized Indian tribes proves that the permit

process would be overwhelmed with applications in the absence of the federal

recognition requirement. It does not. As the district court stated, this is simply

“conjecture.” Aplt. App. at 209.

       Not all of the millions of Americans who identify themselves as having

Native American ancestry are sincere practitioners of Native American religions

that require eagle parts and feathers. We note that the permit process operated

for eighteen years without the requirement that the applicant be a member of a

federally-recognized tribe.   See supra , note 2. If that method of operation led to

such great demand that the permit system was overwhelmed, the government

should have been able to offer evidence to that effect from that period. No such

evidence is included in the record. Finally, the report showing the number of

eagle orders filled in a one-year period from 1997 to 1998 sheds no light on how

circumstances would change if the requirement that an applicant be a member of




ancestry. Aplt. Br. at 34 (citing 60 Fed. Reg. 44,674, 44,679 (1995) (census
data)).

                                          - 22 -
a federally-recognized tribe were eliminated.      10



             2. Illegal Eagle Kills and Black Market Transactions

      Turning to the government’s argument that the current permit system is

necessary to prevent an increase in illegal killings of eagles and black market

transactions, the government has failed to offer any proof on either point, nor

have they shown that a black market in eagle parts even exists. At base, the

government’s argument is that the permit system affects the overall demand for

eagle feathers. Common sense points to the flaws in this argument. At any one

point in time, there are a fixed number of Native Americans who are sincere

practitioners of Native American religions and who consider eagle feathers to be

an integral part of their religious practices. It is these Native Americans–some of

whom are members of federally-recognized tribes and some of whom are not–that

create the demand for eagle feathers for religious purposes. The way the permit

system is structured does not affect that demand, which exists regardless of

whether the Secretary’s permit system encompasses all Native Americans or only

a specific subset ( i.e. , members of federally-recognized tribes). Allowing Native



      10
         Although the FWS regional director testified that the FWS has an average
of 4,500 permit applications pending at any one time, Aplt. App. at 112, the
report seems to indicate a more rapid rate of order fulfillment. During the one-
year period covered by the report, the FWS received 1,070 new requests for
eagles and eagle parts. The report indicates that during that same time period, the
FWS filled 1,190 orders for eagles and eagle parts. Aplt. App. at 187.

                                          - 23 -
Americans, regardless of their tribal status, who are sincere practitioners of a

Native American religion, to obtain a permit would result in a   redistribution of

eagle permits–not in increased demand for them. Given that the demand for

eagles and eagle parts is constant regardless of the permit system, it does not

follow that the number of illegal kills and transactions on the alleged black

market would increase if the system were altered.

      In fact, one could just as easily argue that opening up the permit process to

all Native Americans, instead of just those who are members of federally-

recognized tribes, would   decrease the number of illegal eagle kills and black

market transactions. Currently, a Native American who is not a member of a

federally-recognized tribe has no method within his or her control of obtaining

eagles for religious ceremonies other than through the black market. By

changing the permit system, these same Native Americans would be eligible to

obtain eagle parts in a legal way.

             3. Equal Protection and Administrative Concerns

      The government asserts two final arguments against the conclusion that

restricting the permit process to members of federally-recognized Indian tribes

does not meet the “least restrictive means” test under RFRA. The government

argues that opening up the permit process to all Native Americans who are

sincere practitioners of a Native American religion will not only raise equal


                                          - 24 -
protection problems, but will make the permit process administratively

unfeasible. See Aplt. Br. at 24-26, 34 n.10. We disagree.

       The government asserts that opening up the permit process to all Native

Americans, regardless of membership in a federally-recognized tribe, would

result in a permit system that relied on an impermissible racial classification.

The government bases this argument on        Morton v. Mancari , 417 U.S. 535 (1974),

in which the Court held that a BIA employment preference for applicants that

were “one-fourth or more degree Indian blood and . . . a member of a Federally-

recognized tribe” was “political rather than racial in nature.”        Id. at 553 n.24

(internal quotations and citation omitted). As the Court explained, “[t]he

[employment] preference, as applied, is granted to Indians not as a discrete racial

group, but, rather, as members of quasi-sovereign tribal entities whose lives and

activities are governed by the BIA in a unique fashion.”          Id. at 554. Therefore,

the government argues that, in this case, removing the requirement that an

applicant be a member of a federally-recognized tribe would lead to an

impermissible racial classification.    However, we believe the context to be

critical here. The Morton Court was solely concerned with issues of tribal

sovereignty, stating that the preference was “rationally designed to further Indian

self-government . . . .”   Id. at 555. In this case, we are dealing with an

individual’s free exercise rights. Accordingly,      Morton does not dictate our


                                            - 25 -
result.

          Even the government admits that “there may be occasions when it is

defensible for the government to rely on ancestry in determining a person’s status

as an Indian . . . .” Aplt. Br. at 25. We believe that this is one of those

occasions. As the district court in   Gibson stated, “Congress is very aware of its

trust obligation to Native Americans and, in fulfillment of this obligation, often

confers benefits on Indians irrespective of their membership in a federally

recognized tribe.” 72 F. Supp. 2d at 1358.

          The definition of “Indian” contained within the Indian Reorganization Act

of 1934 (“IRA”), 25 U.S.C. § 476 et seq., for example, “shall . . . include all

other persons of one-half or more Indian blood.” 25 U.S.C. § 479. Native

Americans meeting this definition are eligible for tuition loans for vocational and

trade schools, § 471, and receive certain federal service employment preferences.

§ 472. Scholarship and grant programs for Native Americans under the Indian

Health Care Improvement Act (“IHCIA”), 25 U.S.C. § 1603 et seq., broadly

define the term “Indian” to include “any individual who . . . irrespective of

whether he or she lives on or near a reservation, is a member of a tribe, band, or

other organized group of Indians, including those tribes, bands, or groups

terminated since 1940 [ i.e. , no longer federally-recognized] and those recognized

now or in the future by the State in which they reside, or who is a descendent, in


                                          - 26 -
the first or second degree, of any such member, . . . .”       § 1603(c). If Congress

may include Native Americans who are not members of federally-recognized

tribes within the scope of educational and federal employment programs, surely

Congress may do the same when it comes to protecting Native Americans’ ability

to practice their traditional religions.

       Although the government admits that restricting the eagle permit program

to members of federally-recognized tribes can result in a “collision of the heart

and the mind,” Aplt. Br. at 15 (quotations and citation omitted       ), underlying the

government’s entire argument is the premise that this restriction is justifiable

because it provides an independent, neutral criteria in determining which Native

Americans are allowed to possess eagle feathers. We take issue with this

contention. For approximately sixty years (1871-1928), the federal government

conducted an official policy of “assimilation” towards Native Americans, which

resulted in a “systematic attempt to eradicate Indian heritage and tribalism.”

Felix S. Cohen, Handbook of Federal Indian Law             127-143 (1982 ed.). The 1950s

saw an official policy of “termination,” in which the federal government sought

to end the “trust relationship” between the federal government and Indian tribes,

and Congress voted to “terminate” numerous tribes.           Id. at 152-75. An

“important practical effect of termination was to remove the sovereignty of

terminated tribes. Although the termination acts did not expressly extinguish the


                                            - 27 -
governmental authority of such tribes, most were not able to exercise their

governmental powers after the loss of their land base.”    Id. at 175.

      Overall, “[f]ederal policy toward the recognition of Indian tribes has been

by no means consistent with ‘real’ ethnological principles: Congress has

frequently consolidated previously distinct groups into a single tribe for

recognition purposes, or has divided an individual tribe into two or more groups,

recognizing each in turn as a ‘different’ Indian ‘nation.’ Congress has also

occasionally ‘terminated’ tribes’ federal recognition, in some cases only to

‘restore’ it thereafter . . . .” Christopher A. Ford, “Executive Prerogatives in

Federal Indian Jurisprudence: The Constitutional Law of Tribal Recognition,” 73

Denv. U. L. Rev. 141, 156 (1995) (citations omitted),     quoted in Aplt. App. at 207

(district court opinion). Mr. Saenz’s tribe, the Chiricahua Indians, was once a

federally-recognized tribe with its own reservation. That status was revoked,

however, when the federal government dissolved the Chiricahua reservation in

1886 after the outbreak of warfare between the Apache and the United States.

Aplee. App. at 66-69 (Executive Orders creating and dissolving Chiricahua

reservation). It has largely been the federal government’s policies toward the

Indian tribes over the years that have determined which tribes have survived and

which tribes have not. On the one hand, historical government policy toward the

Chiricahua tribe may have made it impossible for that tribe to obtain federal


                                          - 28 -
recognition today, while on the other hand, the government now wants to use that

same lack of recognition to infringe on Mr. Saenz’s religious freedom. We

refuse to base Mr. Saenz’s free exercise rights on such tenuous ground.

       Congress has explicitly declared a policy “to protect and preserve for

American Indians their inherent right of freedom to believe, express, and exercise

the traditional religions of the American Indian, . . . including but not limited to

access to sites, use and possession of sacred objects, and the freedom to worship

through ceremonials and traditional rites.” The Indian Religious Freedom Act,

42 U.S.C. § 1996. Against this background, we do not believe that Mr. Saenz’s

free exercise rights should be conditioned on his “political” status–whether or not

he is a member of a federally-recognized tribe.

       Finally, the government alleges that allowing Mr. Saenz and others like

him to obtain eagle permits will result in a permit system that is administratively

unfeasible. As explained, the government has offered no proof that the number

of permit applicants would substantially increase in the absence of the challenged

restriction, and we cannot ignore the fact that the government operated the permit

system for eighteen years without requiring an applicant to be a member of a

federally-recognized tribe.   See supra , note 2. The government operates

programs for Native Americans under the IRA and IHCIA that do not require

participants to be members of federally-recognized tribes. Presumably, the


                                         - 29 -
government has found a way to allocate the limited resources in those programs

(scholarship funds and grants) among the programs’ applicants. The government

will have to do the same here. As the district court stated, “[t]he federal

government may find it difficult, time-consuming or bothersome to identify

authentic Indian tribes ethnologically rather than simply politically, but the

present test will never provide for the individual free exercise of religion

precisely because of cases like the present one and because whether or not a

particular tribe has been formally recognized for political purposes bears no

relationship whatsoever to whether or not an individual practitioner is of Indian

heritage by birth, sincerely holds and practices traditional Indian religious

beliefs, is dependent on eagle feathers for the expression of those beliefs, and is

substantially burdened when prohibited from possessing eagle parts.” Aplt. App.

at 218.

      AFFIRMED.




                                        - 30 -
