Rosecan: A Meaningful Presentation

A MEANINGFUL PRESENTATION:
PROPOSING A LESS RESTRICTIVE

WAY TO DISTRIBUTE EAGLE
FEATHERS
Stephen Rosecan
Abstract: Under the Religious Freedom Restoration Act ("RFRA"), a

federal law that substantially burdens an individual's religious practices must
be the least restrictive way to foster a compelling governmental interest.
Despite the RFRA, individuals who are not members of federally recognized
American Indian tribes have generally not been able to possess eagle feathers
for religious purposes. Most federal courts have considered the current
federal regulation of eagle feathers to be the least restrictive way to promote
the government's interests in protecting eagles and preserving Native
American culture. This Note, however, offers a less restrictive means of
distributing eagle feathers that does not adversely affect the government's
interests. This Note proposes that the government, by allowing American
Indians to present eagle feathers to deserving non-Indians or individuals of
American Indian descent who are not members of federally recognized
tribes, can foster Native American culture without any additional threat of
harm to the eagle population.
INTRODUCTION
In 2002, the Tenth Circuit considered the appeal of Samuel Wilgus
who was convicted of possessing eagle feathers in violation of the Bald and
Golden Eagle Protection Act ("BGEPA"). 1 Wilgus, who is not an
American Indian but who participated in American Indian religious
practices, claimed to have received the eagle feathers from Native
* Candidate for Juris Doctor, New England School of Law (2008); A.B.D., Cultural
Anthropology, University of Chicago; M.A., History, University of Mississippi (1996);
A.B., Duke University (1991).
1. United States v. Hardman, 297 F.3d 1116, 1118-20 (10th Cir. 2002) (en banc).
NEW ENGLAND LA W REVIEW [Vol. 42:891
Americans. 2 While American Indians from federally recognized American

Indian tribes (collectively, "Member Indians," "American Indians," or
"Native Americans") are eligible under federal regulations to use eagle
feathers for religious purposes, 3 there is no eligibility for non-Indians like
Wilgus or for individuals of American Indian descent who are not enrolled
members of federally recognized Indian tribes (collectively, "Non-
Members").4
In Wilgus's appeal, one of three cases consolidated in Hardman v.
United States,5 the Tenth Circuit considered sua sponte whether the
Religious Freedom Restoration Act of 1993 ("RFRA") granted Wilgus
authority to use eagle feathers for religious purposes.6 The RFRA applies a
statutorily defined strict scrutiny test to federal laws that substantially
burden religious practices. 7 Under the RFRA, a federal law that
substantially burdens an individual's religious practices must8 be the least
restrictive way to advance a compelling governmental interest.
In Wilgus's case, the Tenth Circuit recognized that the restriction on
eagle feather possession placed a substantial burden on Wilgus's religious
practices. 9 The Tenth Circuit also recognized that the restriction on eagle
feather possession for religious purposes was associated with two
compelling interests-the protection of eagles and the preservation of
2. See Brett Anderson, Note, Recognizing Substance. Adoptees andAffiliates of Native

American Tribes ClaimingFree Exercise Rights, 7 WASH. & LEE RACE & ETHNIC ANCESTRY
L.J. 61, 64-65 & n.34 (2001).
3. Removing the Bald Eagle in the Lower 48 States from the List of Endangered and
Threatened Wildlife, 72 Fed. Reg. 37,346, 37,353 (July 9, 2007) (noting that the regulations
limiting eagle feather possession to members of federally recognized American Indian tribes
are authorized by the BGEPA). See also 50 C.F.R. 22.22 (2005) (granting permits to use
eagle feathers for religious purposes exclusively to members of Indian tribes that are
determined by the Secretary of the Interior to be eligible for federal services). There are
currently 561 federally recognized Indian tribes in the United States. Bureau of Indian
Affairs, http://www.doi.gov/bureau-indian-affairs.html (last visited Apr. 27, 2008).
4. See Hardman,297 F.3d at 1123.
5. In Hardman, the Tenth Circuit considered Wilgus's case along with two other cases
involving individuals who were not members of federally recognized American Indian
tribes and who possessed eagle feathers. Id. at 1118-20. The facts of the other two cases
considered in Hardman are discussed in a subsequent section. See discussion infra Part
I.D.2.a.
6. See id. at 1123-24.
7. See Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb to 2000bb-4
(2000).
8. 42 U.S.C. 2000bb-l(a)-(b). The RFRA is unconstitutional with respect to state law
but not federal law. See discussion infra Part II.C.
9. Hardman,297 F.3d at 1126-27.
2008] A MEANINGFUL PRESENTATION
Native American culture.' 0 Since these two interests were also competing
interests (i.e., American Indians used eagle parts in religious ceremonies),
the Federal Government had the burden of establishing that the federal
restriction on eagle feather possession balanced the two interests in the
least restrictive way." The Tenth Circuit concluded that the government
failed to carry its burden.12 Nonetheless, the Tenth Circuit did not advance
a less restrictive way to distribute eagle feathers; rather the court remanded
Wilgus's case, requesting that the government provide additional facts so
that the district court could determine whether the restriction on eagle
feather possession balanced the competing interests in the least restrictive
way. 13
Recent federal court decisions have not embraced Hardman's
reasoning and have considered the government's restrictions on eagle
feather use to be the least restrictive way of advancing the government's
interests under the RFRA.' 4 This Note, however, proposes a less restrictive
distribution scheme that would allow some Non-Members-including
perhaps Wilgus-to possess eagle feathers without undermining the
government's compelling interests to protect eagles and preserve Native
American culture. The less restrictive distribution scheme involves
allowing American Indians to present eagle feathers to Non-Members who
are actively involved in Native American religious practices. The
presentation of eagle feathers to individuals is a common cultural practice
among American Indians.' 5 This Note argues that allowing Non-Members
to possess eagle feathers when (1) they are presented with the feathers by
American Indians and (2) they are actively involved in Native American
religious practices fosters Native American cultural practices without
adversely affecting the eagle population.' 6 As a result, Non-Members who
10. Id. at 1134-35.

11. Id.
12. See id. at 1135.
13. See id.
14. See United States v. Antoine, 318 F.3d 919, 922-24 (9th Cir. 2003); United States v.
Winddancer, 435 F. Supp. 2d 687, 697-98 (M.D. Tenn. 2006).
15. See discussion infra Part II.A.
16. See discussion infra Part II.B-C. Law review articles that have discussed
Non-Members and the federal restriction on eagle feather possession have not focused
specifically on the presentation of eagle feathers to Non-Members by American Indians as
an exclusive means of distributing eagle feathers. See James R. Dalton, There Is Nothing
Light About Eagle Feathers: Finding Form in the Jurisprudence of Native American
Religious Exemptions, 2005 BYU L. REv. 1575, 1617-18 & n.256 (2005) (focusing
specifically on whether exemptions for eagle feathers should be based on the political status
of Native Americans and thus not considering whether Non-Members have legitimate rights
under the RFRA to possess eagle feathers); Francis X. Santangelo, A Proposalfor the Equal
Protection of Non-Members Practicing Native American Religions: Can the Religious
NEW ENGLAND LAW REVIEW [Vol. 42:891
are so honored with eagle feathers by Member Indians should be eligible to

maintain those feathers under the RFRA.
This Note is divided into three parts. The first part examines the
current legal framework that generally excludes Non-Members from
accessing eagle feathers for religious purposes. The first and second sub-
parts analyze the statutory and regulatory framework that allows Member
Indians to access eagle feathers for religious purposes but bans Non-
Members from possessing such feathers for similar purposes. 7 The third
and fourth sub-parts discuss the RFRA and its intersection with federal case
law.' 8 The Note describes how Non-Members have generally been
unsuccessful in relying on the RFRA to gain access to eagle feathers.' 9
Most courts have considered the current regulation of eagle feathers to be
the least restrictive way of advancing the government's compelling
interests. 0
Freedom Restoration Act Finally Remove the Existing Deference Without a Difference?, 69
ST. JOHN's L. REv. 255, 279-82 (1995) (arguing that Non-Members should be able to
possess eagle feathers under the RFRA, but not discussing the presentation of eagle feathers
to Non-Members by American Indians as an exclusive means of distribution to
Non-Members); Anderson, supra note 2, at 81-84 (recognizing that Non-Members who are
tribal adoptees or affiliates should be eligible to possess eagle feathers, but not arguing that
the presentation of eagle feathers to Non-Members by American Indians should be an
exclusive means of distributing eagle feathers to Non-Members). While law review articles
have not focused on eagle feather presentations as an exclusive method of distributing eagle
feathers to Non-Members, one author, Brett Anderson, has similarly proposed that Non-
Members who are religiously associated with Native American tribes should be eligible to
possess eagle feathers. Id. at 83. Anderson's argument, however, pre-dates Hardman and
does not focus on some of the core issues that arise from Hardman and comprise this Note.
For instance, Anderson does not expressly analyze how Native American cultural practices
can be furthered when Non-Members possess eagle feathers. See id. at 71 ("The second
mischief, although not discussed in this article, is visited upon the tribe when a non-Native
American with whom the tribe seeks to enjoy religious association is denied access to
feathers for ceremonial purposes. When this happens the tribe is not free to religiously
associate with other adherents of its religion."). Anderson also does not consider whether
the regulation of eagle feathers properly balances the government's compelling interests in
the preservation of Native American culture and the protection of eagles. Id. at 80
(discussing the protection of eagles as the only the compelling interest under the RFRA).
Furthermore, Anderson only cursorily deals with the question of whether allowing
Non-Members to possess eagle feathers will result in harm to the eagle population. See id. at
81-82 ("Because a presumably small number of individuals are [tribal adoptees or
affiliates], the fear of substantially increasing demand for an already scarce supply of
feathers is unfounded.").
17. See discussion infra Part I.A-B.
18. See discussion infra Part I.C-D.
19. See discussion infra Part I.D.1.
20. See discussion infra Part I.D. 1.
The second part sketches out a less restrictive way of distributing

eagle feathers. Initially, the Note examines how federal case law has
neglected to explicitly consider an alternate means of eagle feather
distribution-allowing Non-Members to possess eagle feathers only when
American Indians present such feathers to Non-Members. 21 This Note then
argues that Native American culture is fostered by such presentations so
long as the Non-Member is an active participant in Native American
religious practices.2 2 This Note also argues that such presentations
23
should
not result in any additional depredations to the eagle population.
The third part proposes a new scheme that would allow
Non-Members who are active participants in Native American religious
practices to acquire permits for eagle feather possession if they are to be
presented with an eagle feather by a Member Indian. The permits would be
jointly submitted by a Non-Member and a Member Indian and would
specify the ways in which the Non-Member participates in Native
American religious life.2 4
I. BACKGROUND: THE EXCLUSION OF NON-MEMBERS FROM POSSESSING

EAGLE FEATHERS FOR RELIGIOUS PURPOSES
Since the 1940s, the Federal Government has restricted the possession
and use of eagle feathers.25 In the early 1960s, Congress created an
exception to the eagle feather restriction for Native American religious
practitioners. 6 The exception recognized the significance of the eagle for

22. See discussion infra Part II.B.
23. See discussion infra Part II.C.
24. See discussion infra Part III. Brett Anderson has also proposed allowing a joint
application for eagle feathers. See Anderson, supra note 2, at 83-84. The joint permit
application proposed here, however, differs in a couple of ways from Anderson's proposal.
First, Anderson fails to specify how Non-Members would acquire eagle feathers once they
receive a permit. Id. at 83-84. Presumably, under Anderson's proposal, Non-Members
would be able to apply directly to the National Eagle Repository for eagle feathers. See Part
IB, for a discussion of the National Eagle Repository. By contrast, this Note only allows
American Indians to distribute eagle feathers to eligible Non-Members. See discussion infra
Part III. The explicit restriction on eagle feather distribution proposed here is intended to
protect the eagle population and advance Native American culture. See discussion infra Part
II.B.3-C. Second, Anderson's proposal requires a tribal official to act as a middleman in the
permit application process. Anderson, supra note 2, at 83. By contrast, this Note proposes
allowing any American Indian and qualified Non-Member to jointly submit an application
for an eagle feather permit and, thus, avoids any potential tribal political entanglements that
could arise if a tribal political official is involved.
25. See discussion infra Part I.A. 1.
26. See discussion infra Part I.A.2.
NEW ENGLAND LA WREVIEW [Vol. 42:891
Native American religious ceremonies. This exception was subsequently

interpreted in the federal regulation to only apply to Member Indians-
individuals from federally recognized American Indian tribes.28
In recent years, a number of Non-Members have challenged the
validity of the eagle feather restrictions by relying on the Religious
Freedom Restoration Act.29 Courts have generally upheld the restriction on
eagle feather possession, considering it to be the least restrictive means of
fostering the government's compelling interests.30 Only one court has
seriously questioned the validity of the eagle feather regulations as applied
to Non-Members. 3 1 This court, however, did not advance a less restrictive
way of distributing eagle feathers. 32
A. The Federal Statutory Protection of Eagles

There are two main statutes that protect eagles-the Bald and Golden
Eagle Protection Act ("BGEPA") and the Migratory Bird Treaty Act
("MBTA").3 3 The BGEPA is a successor to the Bald Eagle Protection Act
("BEPA"). All three acts are discussed below.
1. The Bald Eagle Protection Act of 1940

In 1940, the United States enacted the BEPA.34 The BEPA recognized
that the bald eagle was of national significance and that the bald eagle was
35
not a "mere bird" but a "symbol of the American ideals of freedom.,
27. See discussion infra Part I.A.2.

28. See discussion infra Part I.B.
31. See discussion infra Part I.D.2.
32. See discussion infra Part I.D.2.b.
33. The bald eagle was formerly protected by the Endangered Species Act but was
removed from the list of endangered and threatened wildlife in July 2007. Endangered and
Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States from the
List of Endangered and Threatened Wildlife, 72 Fed. Reg. 37346, 37346 (July 9, 2007) (to
be codified at 50 C.F.R. pt. 27), available at http://www.fws.gov/migratorybirds/
issues/BaldEagle/baldeaglefinaldelisting.pdf; see also Press Release, U.S. Dep't of the
Interior, Bald Eagle Soars off Endangered Species List, http://www.fws.gov/
migratorybirds/issues/BaldEagle/FINALEagle%20release.pdf. The bald eagle is also
protected by the Lacey Act which prohibits acquiring, transporting, or possessing wildlife in
violation of federal law. See Div. of Migratory Bird Mgmt., The Bald Eagle: Other
Protection Following Delisting from the Endangered Species Act of 1973 (Jan. 4, 2007),
http://www.fws.gov/migratorybirds/issues/BaldEagle/FactSheetJan 1806.pdf.
34. Bald Eagle Protection Act, ch. 278, 54 Stat. 250 (1940) (codified as amended at 16
U.S.C. 668-668d (2000)).
35. Bald Eagle Protection Act, 54 Stat. at 250.
Noting that the bald eagle was facing extinction, the BEPA prohibited
anyone to take, possess, transport, or buy and sell bald eagles or their parts
without a permit. 6 The meaning of to "take" a bald eagle was broadly
defined to include to "pursue, shoot, shoot at, wound, kill, capture, trap,
collect, or otherwise willfully molest or disturb. 37 The meaning of to
"transport" a bald eagle was similarly broadly defined to include to "ship,
convey, carry, or transport by any means whatever, and deliver, or receive
or cause to be delivered or received for such shipment, conveyance,
carriage, or transportation. 3 8 The Secretary of the Interior was authorized
to develop regulations to issue permits for taking, possessing, or
transporting bald eagles or their parts. 39 The permits were limited to
specific purposes, including the promotion of science and the protection of
agriculture. 40 The permits were to be issued so long as the Secretary of the
Interior considered the permit to complement the continued existence of the
bald eagle.4 '
2. The 1962 Amendment to the BEPA: Providing an Exception

for Native American Religious Purposes
In 1962, Congress extended the protections of and the exceptions to
42
the BEPA. The changed
1962 amendment, which
and resulted in the Protection
popular name
the BEPA being to the Bald Golden Eagle Act,of
43
36. Id. at 250-5 1. The BEPA provided that:

[W]hoever, within the United States or any place subject to the
jurisdiction thereof.., without being permitted so to do as hereinafter
provided, shall take, possess, sell, purchase, barter, offer to sell,
purchase or barter, transport, export or import, at any time or in any
manner, any bald eagle, commonly known as the American eagle, alive
or dead, or any part, nest, or egg thereof, shall be fined not more than
$500 or imprisoned not more than six months, or both ....
Id. at 251.
37. Id. at 251 (codified as amended at 16 U.S.C. 668c).
38. Id.
39. Id. 2.
40. Bald Eagle Protection Act 2 (codified as amended at 16 U.S.C. 668a) ("[T]he
taking, possession, and transportation of [eagles or eagle parts may be permitted] for the
scientific or exhibition purposes of public museums, scientific societies, and zoological
parks . . . [or] for the protection of wildlife or of agricultural or other interests in any
particular locality .....
41. Id.
42. Bald and Golden Eagle Protection Act, Pub. L. No. 87-884, 76 Stat. 1246 (1962)
(codified as amended at 16 U.S.C. 668-668a).
43. See Roberto Iraola, The Bald and Golden Eagle Protection Act, 68 ALB. L. REV.
973, 973 (2005).
included a statutory protection for golden eagles as well as for bald

eagles." Congress extended .protection to the golden eagle in part because
the golden eagle was considered to be declining in numbers and facing
extinction.4 5 In addition, the protection of the golden eagle was considered
to provide greater protection to the bald eagle since bald eagles were
sometimes killed when mistaken for golden eagles. a6
As part of the 1962 amendment to the BEPA, Congress also
broadened the exceptions to the original BEPA by authorizing the use of
bald or golden eagles "for the religious purposes of Indian tribes. 4 7 Eagles
and eagle parts have generally been considered of great significance for
American Indian religious and cultural practices.4 8 Congress recognized the
significant role that the eagle played in Native American religious
ceremonies during House and Senate hearings leading up to the BGEPA. a9
As a result, under the BGEPA, the Secretary of the Interior is authorized to
allow the use of bald or golden eagle specimens for Indian religious
purposes when the possession is compatible with the "preservation of the
bald eagle or the golden eagle." 50
Both criminal and civil penalties exist for violation of the BGEPA.51
An initial criminal conviction under the BGEPA includes a fine of up to
$5000 and imprisonment for up to a year.52 A civil 53 violation includes a
penalty of up to $5000 for each separate infraction.
44. Bald and Golden Eagle Protection Act, 76 Stat. at 1246 (codified as amended at 16
U.S.C. 668-668a).
45. Id.
46. Id. ("Whereas protection of the golden eagle will afford greater protection for the
bald eagle, the national symbol of the United States of America, because the bald eagle is
often killed by persons mistaking it for the golden eagle ....
47. Id. (codified as amended at 16 U.S.C. 668a).
48. See Antonia M. De Meo, Access to Eagles and Eagle Parts: Environmental
Protection v. Native American Free Exercise of Religion, 22 HASTINGS CONST. L.Q. 771,
777 (1995) ("The religious use of eagles is essential to the practice of Native American
religion. Native Americans cannot pray or perform their religious ceremonies without
utilizing eagle feathers and eagle parts.").
49. See United States v. Dion, 476 U.S. 734, 741-44 (1986) (discussing some of the
legislative history of the BGEPA).
50. Bald and Golden Eagle Protection Act, 76 Stat. at 1246 (codified as amended at 16
U.S.C. 668a).
51. 16 U.S.C. 668(a)-(b).
52. Id. 668(a). To meet the criminal standard, an individual must act either
"knowingly" or "with wanton disregard for the consequences of [his or her] act." Id.
53. Id. 668(b).
3. The Migratory Bird Treaty Act

Like the BGEPA, bald eagles and golden eagles are also protected
under the MBTA.54 The MBTA prevents the unlawful taking or possession
of species of birds that have received protections as part of international
agreements." The first such agreement in 1916 was between the United
States and Great Britain. 6 The agreement protected specified migratory
game birds, migratory birds that fed on insects, and some migratory
non-game birds. 7 Eagles were subsequently added to the list of migratory
birds protected under the MBTA.58
The MBTA imposes penalties for violations. 5 9 A violation of any
provision of the MBTA is a misdemeanor and includes fines up to $15,000
and imprisonment up to six months. 60 However, under the MBTA, to take a
protected bird and to trade or intend to trade the bird is a felony,
61
subject to
a fine of up to $2000 and imprisonment for up to two years.
B. The Permitting Process, the National Eagle Repository, and

Restricting Eagle Feather Access to Members of Federally
Recognized American Indian Tribes
The BGEPA and the MBTA both "share regulations. 6 2 Under federal
regulations, an individual must receive a permit in order to use or acquire
eagles or eagle parts for American Indian religious purposes.6 3 Only
54. 50 C.F.R. 10.13 (2005) (listing all the species that are protected under the MBTA).
55. See Migratory Bird Treaty Act, 16 U.S.C. 703 (2000).
56. Convention for the Protection of Migratory Birds, U.S.-Gr. Brit., Aug. 16, 1916, 39
Stat. 1702.
57. Id. at 1702-03. The agreement between the United States and Great Britain was
designed to protect migratory birds that, despite being "in danger of extermination," were
"of great value as a source of food or in destroying [injurious] insects." Id.at 1702.
58. See Protection of Birds and Their Environment, U.S.-Japan, Mar. 4, 1972, 25 U.S.T.
3329 (providing protections for the golden eagle and the southern bald eagle that is south of
the 40th parallel); 50 C.F.R. 10.13.
59. 16 U.S.C. 707 (2000).
60. Id. 707(a).
61. Id. 707(b).
62. United States v. Hardman, 297 F.3d 1116, 1122 (10th Cir. 2002) (en banc).
63. See 50 C.F.R. 22.22 (granting permits to use eagle feathers for religious purposes
exclusively to members of Indian tribes that are determined by the Secretary of the Interior
to be eligible for federal services); see also id. 22.11 ("You may not ... possess ... any
bald eagle ... or any golden eagle ... or the parts, nests, or eggs of such birds, except as
allowed by a valid permit ....").A permit is not necessary to "possess or transport within
the United States" bald eagles or bald eagle parts acquired before 1940 or golden eagles or
golden eagle parts acquired before 1962 so long as the eagles or eagle parts were "lawfully
acquired." Id. 22.2(a)(1)(i)-(ii).
individuals who are members of federally recognized American Indian

tribes are eligible to receive permits for religious purposes.64 American
Indians from federally recognized tribes must submit an application to the
United States Fish and Wildlife Service ("FWS") to receive a permit. 65 The
application must include the name of the applicant's tribe, the name of the
religious ceremonies for which the eagle or eagle parts will be used, and an
attached certificate of enrollment in a federally recognized tribe.66 The
FWS evaluates the applications based on the effect of the permit on the
bald and golden eagle populations 67 and with respect to whether the
applicant is engaged in "bonafide tribal religious ceremonies. 68
Applications for eagles or eagle parts that meet the regulatory criteria
are sent to the National Eagle Repository in Colorado. 69 The National Eagle
Repository stores dead eagles and eagle parts that have been collected
throughout the United States, 70 and applicants can specify whether they
want to receive a whole eagle or specific parts. 7 1 Today, there is a
significant waitlist for whole eagles.72 Applicants may have to wait more
than three years.73 Applicants can only submit one application at a time.74
64. Id. 22.22 (providing that permits will only be issued to "members of Indian entities
recognized and eligible to receive services from the . . .Bureau of Indian Affairs listed
under 25 U.S.C. 479a-l"). The Secretary of the Interior is responsible for annually
publishing a list of all Indian tribes that are "eligible for the special programs and services
provided by the United States to Indians because of their status as Indians." 25 U.S.C.
479a-1(a)-(b) (2000).
65. 50 C.F.R. 22.22(a).
66. Id. 22.22(a)(3)-(5).
67. Id. 22.22(c)(1).
68. Id. 22.22(c)(2).
69. Amie Jamieson, Note, Will Bald Eagles Remain Compelling Enough to Validate the
Bald and Golden Eagle ProtectionAfter ESA Delisting?,34 ENvTL. L. 929, 938 (2004).
70. National Eagle Repository: U.S. Fish & Wildlife Service, http://www.fws.gov/
mountain-prairie/law/eagle/ (last visited Apr. 27, 2008) ("Most of the dead golden and bald
eagles received by the U.S. Fish and Wildlife Service ...have been salvaged by State and
Federal wildlife personnel. Many of these birds have died as a- result of electrocution,
vehicle collisions, unlawful shooting and trapping, or from natural causes.").
71. Id.("On the application, you must specify whether you want a golden or bald eagle,
a mature or immature bird, a whole bird or specific parts, or have no preference.").
72. See id
73. Id.In 2007, there were 5000 applicants on the waitlist. Id.The National Eagle
Repository, however, receives only about 1000 dead eagles annually. Id.The demand for
eagles and eagle parts far exceeds the supply. United States v. Hardman, 297 F.3d 1116,
1123 (10th Cir. 2002) (en banc). In addition to criticisms concerning the long wait for eagles
or eagle parts, the National Eagle Repository has also been criticized for delivering eagles in
an unacceptable condition. De Meo, supra note 48, at 790-91 ("When Native Americans do
finally receive eagles or eagle parts ... the birds and feathers are frequently in 'deplorable
shape;' tail and wing feathers may be broken, birds may be burnt, or parts may be
Once an individual has acquired an eagle or eagle parts under a

government-issued permit, the eagle or eagle parts cannot generally be
transferred to another individual. However, an American Indian may
under specific circumstances give an eagle or eagle parts to another
American Indian. 76 American Indians who receive eagle feathers from
another American Indian are also required to have a permit. 7
C. The Religious Freedom Restoration Act

In an attempt to combat the federal statutory and regulatory scheme
that prevents Non-Members from using eagle feathers for religious
purposes, Non-Members have relied on the Religious Freedom Restoration
Act ("RFRA"). 78 The RFRA is a congressional attempt to re-implement a
compelling interest test for laws that substantially burden religious
practices.79 In its findings accompanying the Act, Congress noted that the
Framers of the Constitution had recognized religious freedom as an
"unalienable right." 80 However, that right had been undermined by the U.S.
Supreme Court in Employment Division v. Smith.81 In Smith, Congress
noted that the U.S. Supreme Court had "virtually eliminated the
requirement that the government justify burdens on religious exercise
imposed by laws neutral toward religion."8 2 The RFRA was an attempt to
"override" Smith.83
To override Smith, Congress relied on the RFRA to restore the
compelling interest test that the Supreme Court had articulated in cases pre-
dating Smith.84 Under the compelling interest test codified in the RFRA, the
missing.").
74. National Eagle Repository: U.S. Fish & Wildlife Service, supra note 70.
75. 50 C.F.R. 22.22(b)(1) (2006).
76. Id. ("[E]agles or their parts ... may be handed down from generation to generation
or from one Indian to another in accordance with tribal or religious customs.").
77. See id. 22.11 (stating that in general a permit is needed to possess eagle parts).
78. E.g., United States v. Lundquist, 932 F. Supp. 1237, 1238 (D. Or. 1996).
79. See Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb(a)-(b) (2000).
80. Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 2, 107 Stat.
1488 (codified at 42 U.S.C. 2000bb).
81. Id. (citing Employment Div. v. Smith, 494 U.S. 872 (1990) as "virtually
eliminat[ing] the requirement that the government justify burdens on religious exercise
imposed by laws neutral toward religion").
82. Id.
83. 63 AM. JUR. PROOFOF FACTS 3d 195, 3 (2001).
84. Religious Freedom Restoration Act of 1993 2 (codified at 42 U.S.C. 2000bb)
("The purposes of this chapter [include] ... 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
85
government cannot "substantially burden a person's exercise of religion"
unless the government demonstrates that the "application of the burden to
the person ...is in furtherance of a compelling governmental interest" and
"is the least
86
restrictive means of furthering that compelling governmental
interest., 87
As applied, the RFRA test is a two-pronged, burden-shifting test.
First, the party raising a RFRA defense or claim has the "initial burden" to
show that "a sincere religious belief... has been substantially burdened by
the state. 88 Second, if the initial showing is made, the government then has
the burden to show that the federal law is the "least restrictive means" of
advancing the government's compelling interests.8 9
In 1997, the U.S. Supreme Court declared the RFRA to be
unconstitutional in City of Boerne v. Flores.9 However, the Court's
holding in City of Boerne specifically related to the RFRA's applicability to
state law. 91 The RFRA has subsequently been considered constitutional
when applied to federal law. 92 Therefore, the RFRA still applies to federal
laws regulating the possession of eagle feathers by Non-Members. 93
D. Non-Members and the Largely Unsuccessful Use of the RFRA to

Gain Possession of Eagle Feathers
Despite the RFRA providing protection from laws that substantially
burden religious practices,94 Non-Members have been largely unsuccessful
substantially burdened .... ).

85. 42 U.S.C. 2000bb-l(a).
86. Id. 2000bb-l(b)(l)-(2).
87. See United States v. Winddancer, 435 F. Supp. 2d 687, 692 (M.D. Tenn. 2006).
88. Id. at 692. The RFRA was specifically intended to provide parties with either a
defense or claim when government action substantially burdened religious practices. 42
U.S.C. 2000bb(b)(2).
89. Winddancer,435 F. Supp. 2d at 692.
90. 521 U.S. 507, 536 (1997).
91. See United States v. Hardman, 297 F.3d 1116, 1126 (10th Cir. 2002) (en banc)
("The Supreme Court, in City ofBoerne v. Flores,. . . held that Congress lacked authority to
enact [the RFRA] through the Enforcement Clause of the Fourteenth Amendment, thus
making RFRA inapplicable to actions against the states.").
92. See Gonzales v. 0 Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, 423
(2006) (affirming a district court's determination that the Federal Government failed to
show a compelling interest under the RFRA to ban the sacramental use of a tea that contains
a hallucinogen).
93. See, e.g., United States v. Antoine, 318 F.3d 919, 920, 924 (9th Cir. 2003) (relying
on the RFRA to determine the lawfulness of the federal permitting process for eagle
feathers).
94. See Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb-l(a) (2000).
in gaining access to eagle feathers for religious purposes. 95 While there is

some divergence of opinion among the federal courts concerning whether
the regulation of eagle feathers are valid at all times under the RFRA,96 the
federal decisions have largely upheld the federal regulation of eagle
feathers on the grounds that the current regulations strike an appropriate
balance between the protection of eagles and the preservation of Native
American religious or cultural practices. 97 In so doing, however, the case
law has not expressly considered whether a specific alternate form of
distribution-namely, exclusively allowing American Indians to present
eagle feathers to Non-Members who substantially participate in Native
American religious practices-affects the RFRA analysis.98
This section is divided into two parts. The first part examines how the
majority of courts have articulated the balance that the regulation of eagle
feathers strikes with respect to protecting the eagle and preserving Native
American culture. The second part examines how the Tenth Circuit in
United States v. Hardman questioned the validity of the federal regulations
in light of the RFRA. Although the regulations were questioned in
Hardman, the Tenth Circuit did not adopt or propose a less restrictive way
of distributing eagle feathers.
1. Upholding the Federal Regulation of Eagle Feather

Possession Under the RFRA
a. United States v. Lundquist: Preventinga Non-Member

from Using Eagle Feathersfor Religious Purposes
In 1992, David Lundquist was charged with illegally possessing eagle
parts in violation of the BGEPA. 99 Lundquist, who claimed to be
part-Cherokee and part-Lakota Sioux, 100 alleged that he had received an
"[eagle] feather as a gift from a Native American following participation in
an Indian religious rite."'' 1 Lundquist used the eagle feather during prayers
95. See, e.g., United States v. Winddancer, 435 F. Supp. 2d 687, 689-90, 695-99 (M.D.
Tenn. 2006). But see Hardman, 297 F.3d at 1120, 1136 (affirming district court's decision
to order the return of eagle feathers to a Non-Member after criminal charges were dropped).
96. Compare discussion infra Part I.D. 1 (describing three federal decisions that have
upheld the restrictions on eagle feather possession), with discussion infra Part I.D.2
(discussing United States v. Hardman, which questioned the validity of the eagle feather
regulations as applied to Non-Members).
99. United States v. Lundquist, 932 F. Supp. 1237, 1238 (D. Or. 1996).
100. Id. at 1239.
101. Id. Lundquist also "received a golden eagle head as a gift from an individual in
and during "vision quest[]" ceremonies.102

The United States District Court for the District of Oregon denied
Lundquist's motion to dismiss the charges for eagle feather possession on
the basis that his rights under the RFRA were violated.10 3 The court
determined that the government had two interests: a compelling interest 0to4
protect eagles and an interest in preserving Native American religion.!
The current method of distributing eagle feathers was 10considered
5
the least
restrictive way of balancing the government's interests.
The court rejected Lundquist's alternative distribution scheme that
would have allowed an exemption from the eagle feather restrictions for
Non-Members such as himself. 10 6 The court concluded that the proposed
exemption would "seriously undermine" the congressional objective to
protect eagles. 0 7 Though the court did not explicitly state how the
congressional objective to protect eagles would be undermined, the court
implied that such a broad exemption would place a corresponding burden
on Native American religious practitioners who already faced long waits
for eagle parts. 0 8 Thus, the court suggested that the eagle population would
be threatened at least in part since Native American religious practitioners
would be 09more likely to illegally take eagles to support their religious
1
practices.
b. United States v. Antoine: Upholding the Federal

Regulation of Eagle Feathersas the Least Restrictive
Means ofAllocating Burdens on Religious Practices
In United States v. Antoine, the Ninth Circuit considered a similar
issue involving whether the BGEPA's restrictions on eagle feather
possession violated an individual's rights under the RFRA. 110 In Antoine,
the defendant, who was a member of a Canadian Indian tribe, had brought
dead eagles and eagle parts into the United States."' The Ninth Circuit
Arizona." Id.Since it is not clear whether the eagle head was received from a Native
American, see id, this Note is most concerned with the gifting of the eagle feather.
102. Id.at 1240.
103. Id.at 1239, 1243, 1245.
104. Id. at 1243.
105. Lundquist, 932 F. Supp. at 1243.
106. Id.at 1242-43.
107. Id.at 1243.
108. See id
109. See id.at 1242-43.
110. See United States v. Antoine, 318 F.3d 919, 920-21 (9th Cir. 2003).
111. Id.at 920 ("[Antoine] obtained dead eagles in Canada and brought feathers and
other eagle parts into the United States, where he swapped them for money and goods.").
Antoine argued that the exchanges were part of potlatch ceremonies and had religious
determined that the government had a compelling interest to protect eagles,

and that the National
12
Eagle Repository was a justified means of limiting the
supply of eagles.'
Furthermore, the court argued that the current allocation of eagle
feathers was valid because any alternative allocation of eagle feathers to
Non-Members would place a corresponding burden on the religious
practices of American Indians from federally recognized tribes. 1 3 Although
the Ninth Circuit recognized that permitting Non-Members to possess eagle
feathers might relieve the burden on the defendant's religious practices, the
change in the permitting process would burden American Indians.1 14 This
shifting of religious burdens was considered inescapable.' 15 Noting that the
permit system was based on a permissible means of discrimination, 1'6 the
court concluded that the permit system was the least restrictive way to
allocate "religious burdens ... because [any] reconfiguration would
necessarily restrict someone's free exercise."" 7
significance. Id.
112. See id at 924. The Ninth Circuit's determination that the protection of the eagle was
a compelling interest appears to rest in part on the bald eagle's then-status as a threatened
species. See id at 921-22. Since the bald eagle has been removed from the endangered
species list, see supra note 33, there has been some concern that its protection may no
longer be a compelling interest, see Jamieson, supra note 69, at 949. However, this is
unlikely. Not only has one federal appeals court noted that the protection of the bald eagle
would always represent a compelling interest, see United States v. Hardman, 297 F.3d 1116,
1128 (10th Cir. 2002) (en banc) ("The bald eagle would remain our national symbol
whether there were 100 eagles or 100,000 eagles. The government's interest in preserving
the species remains compelling in either situation."), but if the protection of the bald eagle
was no longer a compelling interest, the result could be the unregulated taking of eagles-a
process that could ultimately result in the re-listing of the bald eagle as a threatened or
endangered species. See Jamieson, supranote 69, at 949.
113. See Antoine, 318 F.3d at 923 ("If the government extended eligibility, every permit
issued to a nonmember would be one fewer [permit] issued to a member.").
114. Id.("[A]n alternative can't fairly be called 'less restrictive' if it places additional
burdens on other believers.").
115. Id.
116. Id. at 924. In Antoine, the court argued that the permit process did not discriminate
based on religion but based on a political categorization. See id. at 924 & n.8. The court
appears to be suggesting that, by discriminating between member Indians and Non-
Members based on political classification and not religion, the permit program does not
violate the Establishment Clause. See id
117. Id. at 924.
c. United States v. Winddancer: The FederalPermitting

Processas the Least Restrictive Means to Balance
Competing CompellingInterests
In 2006, Ed Winddancer was indicted inter alia for the possession of
eagle feathers. 118 Winddancer, who was not a member of a federally
recognized Indian tribe, claimed to have been descended from the
Cherokee and the Nanticoke." 9 Winddancer also claimed to have been
adopted by a Lakota Indian family.120 Winddancer used eagle feathers
during his pow-wow dancing.' 2' He claimed that his use of the feathers was
"crucial to the proper practice of his religion.' 22
Winddancer raised the RFRA as a defense to the charges of illegally
possessing eagle feathers. 23 The court recognized that the government had
two compelling interests in maintaining the eagle permitting system under
the BGEPA. 2 4 First, the government had a compelling interest to preserve
eagles.125 Second, the government had a compelling interest to preserve
federally recognized Indian tribes. 26 The existing BGEPA regulations were
considered the least restrictive
127
means of balancing the government's "two
competing objectives."'
The court rejected two alternative approaches. First, the court rejected
a complete ban on all individuals possessing eagle parts since such a ban
would harm Native American culture. 28 Second, the court considered
whether any religious practitioner who relies on eagle parts in his or her
religious practices should be eligible to use them. 1 The court reasoned
that if all such religious practitioners were allowed to use eagle parts for
religious purposes, then American Indians would experience a greater wait
time for eagle parts and, thus, American Indian religious practices would be
burdened. 30 Furthermore, the court argued that making all such persons
118. United States v. Winddancer, 435 F. Supp. 2d 687, 689 (M.D. Tenn. 2006).
119. Id. at 695. The Nanticoke are not a federally recognized tribe, id., though the
Nanticoke have received state recognition from Delaware, see DEL. CODE ANN. tit. 29, 105
(2003).
120. Winddancer, 435 F. Supp. 2d at 695.
121. Id. at 689.
122. Id.
123. Id.at 691.
124. Id. at 695.
125. Id.
126. Winddancer, 435 F. Supp. 2d at 695.
127. Id.at 698.
128. Id.
129. Id.
130. See id at 698.
eligible for eagle feathers would expand the black market in eagle3 parts-
resulting in increased illegal depredations to the eagle population.'
2. United States v. Hardman and the Questioning of the Federal

Regulation of Eagle Feather Possession Under the RFRA
In United States v. Hardman, the Tenth Circuit questioned whether
the regulation of eagle feathers was valid under the RFRA. While the Tenth
Circuit's decision stands in opposition to Lundquist, Antoine, and
Winddancer with respect to the legitimacy of the federal regulations, the
Tenth Circuit did not 3advocate
2
or propose a less restrictive way to
distribute eagle feathers.
a. Breaking Down the Three FactualScenarios in

Hardman
In Hardman, the Tenth Circuit, sitting en banc, considered together
three separate cases that involved eagle feather possession by Non-
Members. 33 Two of the cases involved individuals who were not of
American Indian descent.' 34 The third case involved an individual who was
descended from an American Indian35
tribe but was not an enrolled member
of a federally recognized tribe.
Raymond Hardman, a non-Indian who was charged with illegally
possessing eagle feathers, 36 claimed to have received the eagle feathers
from a Hopi religious leader following the death of a close relative. 137 At
the time that Hardman received the eagle feathers, he practiced an
American Indian religion and was married to a woman who was enrolled in
a federally recognized Indian tribe.' 38 Hardman and his wife39 had two
children, who were also enrolled members of the mother's tribe. 1
In 1993, the godfather of one of Hardman's children died. 140 Hardman
drove the body of the godfather from Utah to Arizona "so that appropriate
religious services could be performed."' 14 1 As part of a religious cleansing
ceremony, a Hopi religious leader provided Hardman with "prayer
131. Id.
132. See United States v. Hardman, 297 F.3d 1116, 1134-35 (10th Cir. 2002) (en banc).
133. Id. at 1118-20.
134. Id. at 1118-19.
135. Id. at 1118-20.
136. Id. at 1118.
137. Id.
138. Hardman, 297 F.3d at 1118.
139. Id.
140. Id.
141. Id
feathers," including eagle feathers. 142 The feathers were to be kept in the
car that transported the dead body. 143 Hardman considered the feathers to
"hold a special prayer for [him], [his] family, and the automobile they were
1
in."' 44
Hardman, who had unsuccessfully sought to receive a permit for the
feathers, had the eagle feathers confiscated from him by federal officials
several years later, after his estranged wife told authorities that Hardman
possessed the eagle feathers without a permit. 145 Hardman was charged and
convicted under46
the MBTA and eventually appealed his conviction to the
Tenth Circuit. 1
Like Hardman, Samuel Wilgus was charged with illegally possessing
eagle feathers. 147 Wilgus, who claimed to be "an adopted member of the
Paiute Tribe of Utah,"' 148 was not of American Indian descent, 149 though he
practiced a Native American religion.' 50 Wilgus, who used the eagle
feathers during religious ceremonies, 15 apparently "received his [eagle]
feathers as 52gifts on a number of occasions from various Native
Americans.'
153
Joseluis Saenz, who was a descendant of the Chiricahua Apache,
had his eagle feathers confiscated during a search of his home by New
Mexico officials. 154 Saenz practiced "the beliefs and traditions of the
Chiricahua Apache religion.', 155 The Chiricahua Apache were once a
142. Id.
143. Id.
144. Hardman, 297 F.3d at 1118.
145. Id.
146. Id.
147. See id.at 1119. Unlike Hardman, Wilgus was charged with violating the BGEPA.
Id.
148. Id.at lll9 n.3.
149. Id.at 1119.
150. Hardman, 247 F.3d at 1119. Wilgus was apparently a member of the Native
American Church. Anderson, supra note 2, at 65. See infra Part II.A, for an expanded
discussion of the facts involving Wilgus.
15 1. See Anderson, supra note 2, at 66.
152. Hardman, 297 F.3d at 1119 n.4.
153. Id. at 1119.
154. Id.at 1119-20 & n.5 ("The items seized [from Saenz] included 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 quiver and four arrows with one eagle
feather . . . one bustle with ninety-four eagle feathers[,] . . .and a framed print with one
eagle feather.").
155. Id.at 1119.
federally recognized tribe but lost recognition by the late nineteenth

century. 156 Eagle feathers were considered to be "an integral part of
[Saenz's] religious practices."' 15 7 Saenz' 58had received his feathers "as gifts in
connection with various ceremonies."'
Saenz was charged under the BGEPA, but the government
subsequently agreed to dismiss the charges. 159 After the dismissal, Saenz
was able to retrieve the eagle feathers that had been seized from his house
by filing a motion in the district court for return of seized property. 160 The
government subsequently appealed the district court's decision to the Tenth
Circuit. 161
b. The RFRA Analysis in Hardman
i. The Government Failed to Show That the

Current Regulations Furthered the Compelling
Interests.
In Hardman, the Tenth Circuit considered whether the federal 162
permitting process for eagle feathers was valid under the RFRA.
Acknowledging that the religious beliefs of all three claimants were
substantially burdened, 163 the court recognized that the government had two
main compelling interests.' 64 One compelling interest was the protection of
eagles. 165 A second
66
compelling interest was the preservation of Native
American culture.1
156. Id.
157. Id.
158. Hardman, 297 F.3d at 1120.
159. Id. The Tenth Circuit does not explain why the government moved to dismiss the
charges against Saenz. See id.
160. Id.
161. Id.
162. Id.at 1129.
163. Id. at 1126-27.
164. Hardman, 297 F.3d at 1127-29. The Tenth Circuit also recognized a third
compelling interest to fulfill trust obligations to American Indians. Id. at 1129. However, the
Tenth Circuit stated that the government had "not shown that broader permit eligibility
would damage the government's ability to fulfill its trust obligations." Id. at 1134. Since the
argument concerning the fulfillment of trust obligations was cursorily dealt with by the
court, see id., it is not considered in this Note.
165. Id. at 1128.
166. Id. at 1128-29. In Hardman, the Tenth Circuit does not always clearly articulate the
precise language of the compelling interest to protect Native American culture. Compare id.
at 1128 ("protecting Indian cultures from extinction") (emphasis added), with id. at 1129
("preserving Native American culture and religion") (emphasis added), and id. at 1133
The Tenth Circuit found that the government failed to demonstrate

that its compelling interests were necessarily furthered by the federal
permitting process.' 67 The court was not convinced that an increase in
permit applications would harm the eagle population 168 or result in a greater
poaching of eagles. 169 The court rejected the government's argument that
an increase in applications for eagle feather permits would necessarily lead
to increased illegal depredations of the eagle population since there was no
specific evidence presented to support the argument.' 70 Similarly, the court
rejected the argument that an increase in wait times to receive eagle parts
would necessarily lead to increased illegal poaching of eagles by American
Indians:
Assuming arguendo that there will be an increased wait for parts,
the government's poaching argument misses the mark. The fact
that some members of federally recognized tribes have poached
eagles rather than waiting for parts does not, absent additional
evidence, lead to the conclusion that increased waits will result
in sufficient poaching to frustrate the government's interest in
protecting eagle populations. In the absence of additional
evidence, the opposite conclusion seems equally plausible. While
the wait might increase for members of federally recognized
tribes, it would decrease for sincere practitioners who are not
members of federally recognized tribes, who currently have no
legal access to eagle parts for religious purposes. This approach
could result in an offsetting decrease in poachin by people who
are not members of federally recognized tribes.
The court also was not convinced that Native American culture would
be harmed if Non-Members who practiced a Native American religion
were included in the federal permitting process for eagle feathers. 172 The
court stated that there was no "hard evidence" that an increased demand for
eagle permits would "result in an increased wait substantial enough to
("preserving Native American cultures") (emphasis added). This Note uses preserving
Native American culture to describe the government's compelling interest. The term culture
is broad enough to include the categories of Native American cultures and Native American
religion. See THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th ed.
2000), available at http://dictionary.reference.com/browse/culture.
167. Hardman, 297 F.3d at 1132-33.
168. Id.at 1132.
169. Id.
170. Id. ("The record contains no evidence indicating that increased permit applications
would place increased pressure on eagle populations.").
171. Id. at 1132-33.
172. id.at 1133-34.
endanger Native American cultures.' ' 173 Furthermore, the court suggested
that the possession of eagle feathers by Non-Members who practiced a
Native American religion could advance Native American culture:
"Allowing a wider variety of people to participate in Native American
religion could just as easily foster Native American culture and religion by
exposing it to a wider array of persons."' 174 Thus, the Tenth Circuit went a
step further than Lundquist and subsequent decisions in Antoine and
Winddancer by acknowledging the possibility that the possession of eagle
feathers by Non-Members could conceivably foster Native American
culture, though the court did not argue whether
175 or not such possession
actually did foster Native American culture.
ii. Recognizing That Ultimately the Interests Must

Be Balanced to Satisfy the RFRA
While the Tenth Circuit argued that the government had not
demonstrated how its compelling interests were furthered by the regulation
of eagle feathers, the Tenth Circuit recognized that ultimately the two
compelling government interests had to be set in equipoise in the least
restrictive manner:
This [balancing] can be conceptualized as something of a sliding
scale: At one extreme is a situation where nobody can hold eagle
feathers, which would maximize eagle protection and set
protection of Native American cultures at zero. At the other
extreme is a situation where members of federally recognized
tribes who are sincere practitioners of Native American religion
are given full access to all the eagle feathers they desire, which
minimizes protection of eagles. The government has essentially
chosen a point somewhere along this continuum which attempts
173. Hardman, 297 F.3d at 1133.

174. Id.
175. Despite suggesting a connection between the allocation of eagle feathers and the
fostering of Native American culture, however, the Tenth Circuit ultimately "[did] not
express an opinion on whether distributing eagle feathers" to Non-Members would advance
the government's compelling interest to preserve Native American culture. Id.at 1133 n.23.
A concurring opinion sharply disagreed with the majority opinion's logic concerning the
preservation of Native American culture. See id. at 1138 n.3 (Murphy, J., concurring). The
concurring opinion suggested that the scope of the government's compelling interest to
preserve Native American culture should be restricted to ensuring that individuals from
federally recognized tribes can engage in "their traditional way of life." Id.By implying that
maintaining a "traditional" way of life was associated with providing eagle parts to
American Indians without additional delay, the concurring opinion "fail[ed] to see how
distributing eagle feathers [to Non-Members] could ever 'foster' the government's interest."
Id.
to strike some type of balance between the two extremes. The

ultimate question for the court, then, is whether the point that the
government has chosen constitutes means that minimize the
impact on religious176adherents who are not members of federally
recognized tribes.
The burden on the government was to describe how the current
regulatory scheme advanced its compelling interests and "where other, less
restrictive means would lie." 177 Since the government had failed to meet its
evidentiary burden, the court could not determine whether the regulations
were the least restrictive way to balance the competing interests. 178
Therefore, with respect to Hardman and Wilgus, the Tenth Circuit
remanded the cases to the district court to allow the government to present
additional information to support its claims. 179 In the case of Saenz, the
Tenth Circuit
80
affirmed the district court's determination to return the eagle
feathers.
II. A DIFFERENT METHOD FOR DISTRIBUTING EAGLE FEATHERS TO NON-

MEMBERS
The federal case law involving eagle feathers possession and Non-
Members has considered a limited number of alternatives with respect to
the distribution of eagle feathers. In United States v. Lundquist, United
States v. Antoine, and United States v. Winddancer, the courts generally
compared maintaining the status quo with allowing Non-Members to
possess eagle feathers for religious purposes.'81 These courts suggested that
allowing Non-Members to use eagle feathers for religious purposes would
place a burden on Native American religious practices and, at least in the
cases of Lundquist and Winddancer, the court determined that the eagle
population would be threatened with harm.' 82 In United States v. Hardman,
the Tenth Circuit determined that the government had failed to put forward
sufficient evidence to show that the regulation of eagle feathers balanced
176. Id.at 1134-35 (majority opinion) (internal citation omitted).

177. Id.at 1135.
178. Id.
179. Hardman, 297 F.3d at 1135.
180. Id.at 1131-32. With respect to Saenz, the Tenth Circuit's holding is the only
example of a federal appeals court relying on RFRA to grant possession of eagle feathers to
an individual who is not an enrolled member of a federally recognized Indian tribe. Since
Saenz may not have prevailed if the government had developed a more adequate record, see
id. at 1132, and since Saenz was seeking the return of seized items after the underlying
charges had been dismissed, id at 1120, the Tenth Circuit's holding with respect to Saenz
appears to be limited in scope.
181. See discussion supraPart I.D.l.a-c.
182. See discussion supraPart I.D.l.a-c.
the government's compelling interests in the least restrictive way.' 83 By

remanding the case, the Tenth Circuit sought in part a discussion of other
alternative means of distribution in order to help the court determine
whether
RR .184
the current regulations met the compelling interest test under the
This section takes on the task laid out in Hardman to outline an

alternative and less restrictive means for distributing eagle feathers. The
discussion here focuses on (1) outlining an alternative method for
distributing eagle feathers, (2) demonstrating that this method can foster, as
opposed to burden, Native American religious practices, and (3) showing
that this method of distribution should not result in additional harm to the
eagle population. The alternative method proposed here involves allowing
American Indians to choose whether to distribute eagle feathers to Non-
Members who substantially participate in Native American religious
practices. Thus, Non-Member religious practitioners would not have an
unqualified right to eagle possession; rather, to legally possess eagle
feathers, they would have to be presented with such feathers by American
Indians.
A. Allowing American Indians to Distribute Eagle Feathers to Non-

Members
The factual circumstances in Lundquist and Hardman point to an
alternative method of eagle feather distribution that has not been
substantially considered in the RFRA analyses conducted by federal courts.
In both Lundquist and Hardman, the Non-Member defendants, who
claimed to participate in native religious practices, alleged that they had
been presented with eagle feathers by Native Americans. 185 When
considered in a proper cultural context, such presentations are not
surprising. Eagle feathers have historically circulated among American
Indians 186 and are often presented to individuals to mark socially valued
acts. 187 Furthermore, eagle feathers are used in various Native American
183. See discussion supra Part I.D.2.b.2.

184. See discussion supra Part 1.D.2.b.2.
185. See discussion supra Part I.D. 1-2.
186. American Eagle & Native American Indian, http://www.eagles.org/
nativeamerican.htm (last visited Apr. 27, 2008) ("Eagle feathers were [historically]
awarded to Indian Braves, warriors and Chieftains for extreme acts of valor and bravery.
These feathers were difficult to come by, and were earned one at a time.").
187. See De Meo, supra note 48, at 777 (stating that eagle feathers are "given to military
veterans as a symbol of extraordinary bravery and courage"); Jim Hughes, Ruling Could
Ease Limits on Possession of Eagle Feathers,DENV. POST, Aug. 13, 2002, at BO1, available
at 2002 WLNR 468047 (noting that eagle feathers are "often used as rewards for good
deeds"); Paul Woody, Removing Feathers Right Move, RICH. TIMES DISPATCH, May 28,
religious practices. 188

It is possible that the defendants in Hardman and Lundquist were
presented with eagle feathers by American Indians to mark socially valued
practices. For instance, Samuel Wilgus, a defendant in Hardman, claimed
to be an adopted member of the Paiute and to have received eagle feathers
as gifts from various Native Americans. 189 Though not mentioned in
Hardman,'9" Wilgus was apparently a Native American Church 91 ("NAC")
participant and stated that he used the feathers during ceremonies on the
Paiute reservation.192 Furthermore, Wilgus spent a number of years learning
American Indian ways' 93 and did not engage in Indian religion in a
haphazard fashion. 194 Thus, it seems possible that Wilgus was honored with
eagle feathers for deeds that he had accomplished among the Paiute.
Likewise, Raymond Hardman, another defendant in Hardman, may have
been presented with eagle feathers for performing a noteworthy deed since
Hardman was presented with eagle feathers by a Native American after
driving a dead body from Utah to Arizona so that proper religious services
2006, at C4, available at 2006 WLNR 9476849 (quoting a representative of the American
Indian Cultural Exchange as saying that, for "American Indians, an eagle feather is earned
for an extraordinary deed . . . [and] is a mark of honor"); Personal Histories of Some
Mi'kmaq People, http://mrc.uccb.ns.ca/oralhis.html (last visited Apr. 27, 2008) ("It is an
honour to receive an eagle feather in recognition of helping one's people.").
188. See, e.g., DAVID F. ABERLE, THE PEYOTE RELIGION AMONG THE NAVAHO 127-29
(1966) (noting that eagle feathers are used in NAC ceremonies); De Meo, supra note 48, at
777.
189. United States v. Hardman, 297 F.3d 1116, 1119 nn.3-4 (10th Cir. 2002); see also
Legality of Search May Decide Religious Freedom Case, LAS VEGAS REv.-J., July 14, 1999,
at 13A, available at 1999 WLNR 527337 (hereinafter Religious Freedom Case). At least
one of the individuals who presented eagle feathers to Wilgus appears to have been a
member of the Paiute. See Anderson, supra note 2, at 64 n.34 (noting that Wilford Jake and
other Native Americans allegedly provided eagle feathers to Wilgus); see Jim Hughes,
supra note 187 (describing Wilford Jake as a "Paiute holy man").
190. See Hardman, 297 F.3d at 1119.
191. For a discussion of the practices of the Native American Church, see discussion
infra Part II.B. 1.a.
192. See Anderson, supra note 2, at 66. Wilgus apparently associated himself with the
Paiute Tribe of Utah. Hardman, 297 F.3d at 1119 n.3. The Paiute Tribe of Utah was
federally recognized in 1980. Paiute Indian Tribe of Utah, http://indian.utah.gov/utah-tribes
_today/paiute.html (last visited Apr. 27, 2008).
193. Wilford Jake, a Paiute, stated that Wilgus had lived with him for five or six years
and learned "a lot of things about the Indian ways." Hughes, supra note 187.
194. See id. Wilgus appears to have worked closely with some members of the Paiute.
See Religious Freedom Case, supra note 189 (mentioning that Wilgus claimed to have been
adopted by a Paiute family); Hughes, supra note 187 (noting that Wilgus had lived with a
Paiute holy man).
could be conducted. 95 Though there is less evidence, David Lundquist, the

Non-Member defendant in Lundquist, may have also received an eagle
feather in recognition of a noteworthy deed. Lundquist claimed to have
participated in a native religious 1 ceremony
96 and to have received an eagle
feather from an American Indian.
As these examples illustrate, the ability of Non-Members to gain
access to eagle feathers for religious purposes does not necessarily entail
Non-Members applying to the National Eagle Repository and presumably
directly increasing the current wait list for eagle parts. Instead, American
Indians can and, as this Note argues, should be sources of eagle feathers for
Non-Members. As mentioned, such a method of distribution fits well
within the existing cultural context in which eagle197feather presentations are
recognized and valued among Native Americans.
In the following two subsections, this Note sketches out the basic
RFRA aspects of a distribution model of eagle feathers that permits
American Indians to present eagle feathers to Non-Members who actively
participate in Native American religious practices. As discussed in the next
subsection, such presentations further Native American culture when the
Non-Member actively engages in native religious ceremonies. Furthermore,98
such presentations should not adversely affect the eagle population.'
B. Eagle Feather Possession by Non-Members Is Not Always

Antithetical to Native American Culture.
To demonstrate that the presentation of eagle feathers can benefit
Native American cultural practices, this Note examines two prevalent
Native American religious practices-Native American Church religious
practices and Native American sweat lodge religious practices. These
practices appear to be particularly appropriate to a discussion of eagle
feather possession and Non-Members. First, Non-Members are often
permitted to participate in these practices. 199 For instance, Samuel Wilgus,
one of the defendants in Hardman, claimed to be a NAC 200 participant and
may have received eagle feathers through that participation. Second, both
of these religious practices involve the use of eagle feathers. 20 1
195. See discussion supra Part I.D.2.a.

196. United States v. Lundquist, 932 F. Supp. 1237, 1239 (D. Or. 1996).
197. See supra notes 186-87187 and accompanying text.
198. See discussion infra Part II.C.
199. See discussion infra Part II.B.1.
201. See, e.g., ABERLE, supra note 188, at 127-29; RAYMOND A. BUCKO, THE LAKOTA
RITUAL OF THE SWEAT LODGE: HISTORY AND CONTEMPORARY PRACTICE 226 (1998); Chetty
Chapko, About the Sweat Lodge and Its Use, http://www.tfn.net/Museum/culture/
916 NEW ENGLAND LAW REVIEW [Vol. 42:891
The argument here-that the presentation of eagle feathers to Non-

Members who actively participate in native religious practices supports
Native American cultural practices-is based on the premise that the NAC
and sweat lodges encourage a particular kind of sociality among
participants, both American Indian and Non-Member participants. To
become a participant in these religious practices is to pray and sacrifice for
others. It is within such a context that, this Note argues, the presentation of
eagle feathers to Non-Members by American Indians fosters Native
American cultural practices.
Below, this Note describes the social obligations and bonds that help
shape NAC and sweat lodge practices. The Note then discusses how Non-
Member participants contribute to the production and reproduction of such
religious practices. Finally, the Note describes how-in the religious
context of giving, sacrifice, and sociality-the presentation of eagle
feathers to Non-Member participants can further Native American culture.
1. NAC and Sweat Lodge Basics

The NAC and Native American sweat lodges are both religious
practices that are associated with religious or spiritual healing.20 2 Both the
NAC and sweat lodges involve practices that are meant to permeate the
everyday lives of participants. 0 3 As with other kinds of sacred Native
American practices, 20 4 eagle feathers can be used during both NAC and
sweat lodge practices. 205
In the following subsection, this Note describes some of the basic
practices associated with the NAC and sweat lodges. 20 6 Special attention is
paid to how both the NAC and sweat lodges authorize a set of practices in
which participants are expected to be emotional and to be oriented toward
sweat lodge.html (last visited Apr. 27, 2008).

202. See ABERLE, supra note 188, at 11 ("A peyote meeting must be held for a purpose-
to cure, to avert evil, to promote future good, to thank God for past blessings.") (internal
quotation marks omitted); BUCKO, supra note 201, at 90-92 ("In the contemporary sweat
lodge, different people attribute healing to a variety of sources: intercession of the spirits
with God, the power and recommendations of the spirits themselves, the power of
Tunkashila or Wakan Tanka, the powers of the rocks (themselves seen as spirits or
grandfathers) or the steam, or the physical effects of the lodge itself.").
203. See ABERLE, supra note 188, at 12-14 ("The Peyotist ethical code constitutes a way
of life called the 'Peyote Road,' and conforming to the ethic is following the Peyote Road.")
(internal quotation marks omitted); see, e.g., BUCKO, supra note 201, at 189-93 (discussing
an American Indian woman's transformation through experiences with the sweat lodge).
204. See, e.g., De Meo, supra note 48, at 777.
205. See, e.g., ABERLE, supra note 188, at 127-29; BUCKO, supra note 201, at 226;
Chapko, supra note 201.
206. See discussion infra Part Il.B. .a-b.
20081 A MEANINGFUL PRESENTATION 917
one another.20 7 In addition, this section notes how the NAC and sweat
lodges are generally open to participation by Non-Members. 0 8
a. The Native American Church

The NAC is the incorporated form of the peyote religion. 20 9 The
principal practice of the peyote or NAC religion is an all-night ceremony in
which participants ingest peyote, pray, and sing.2 1 Among members of the
church, peyote is considered to be divine.' Peyote ceremonies are
generally held for a particular purpose, such as "to cure, to avert evil, to
promote future good, [or] to thank God for past blessings. 2 1 2 The
ceremonies are conducted by a roadman and several other officials. 21 3 The
ceremonies also include a sponsor, who secures the location, materials, and
officials for the ceremony.
For the purposes of this Note, what is significant about NAC religious
practices is how particular modes of feeling and sociality are authorized.2 15
The descriptions of prayers for NAC ceremonies indicate a heavy
emotionality.2 16 Through prayer and tears, participants seek divine aid.21 7 In
207. See discussion infra Part II.B.l.a-b.

208. See discussion infra Part II.B.1.a-b.
209. See United States v. Boyll, 774 F. Supp. 1333, 1336 (D.N.M. 1991). The Native
American Church was initially incorporated as part of an attempt to "provide greater
protection from early attempts to suppress the use of peyote for religious purposes." Id.The
NAC, however, is not a hierarchically organized church. Id. Instead, the NAC consists of
"loosely affiliated local chapters . .. [that are] responsible for establishing [their] own
charter." Id.
210. Id.at 1335-36. "Peyote is a small, low-growing, hairy cactus, whose flesh and roots
are eaten by [religious practitioners]." ABERLE, supra note 188, at 5. Individuals who have
taken peyote have experienced wakefulness, euphoria, nausea, heightened sensitivity, and,
at times, visions. See id.at 5-6.
211. ABERLE, supra note 188, at 13 ("Peyote was given to the Indians by God because he
took pity on them for being a subject people-poor, weak, helpless, and ignorant .... God
made the Peyote cactus .. . . and put some of his power into it,in order to help the
Indians.") (internal quotation marks omitted).
212. Id.at 11.
213. Boyll, 774 F. Supp. at 1335-36. Besides the roadman, NAC ceremonies generally
include a drummer, a cedar man, and a fireman or doorman. Id.
214. Id. at 1336.
215. ABERLE, supra note 188, at 334-35 (discussing how a goal of the NAC is to bring
about an "inner transformation" among participants).
216. Id.at 153.
217. Id.at 153-54. Aberle focuses on the NAC practices of the Navaho. See, e.g., id.at
125 ("Peyotism among the Navaho is like peyotism elsewhere. Every American Indian
group probably has some minor variations in ritual and ideology ....But these variations
are [relatively] small ....).
addition, the prayers of individual participants often recognize the

assistance that has been provided by other church members.21 8 These
prayers demonstrate "the strength of solidarity between members of the
church, 21 9 and they reflect the "heavy stress" that the church places on
"reciprocity [and] cooperation" among members. 220
The obligation of cooperation, reciprocity, assistance, and solidarity
among church members is also made explicit in the ethical code that
members of the peyote religion are expected to follow. 22 1 To follow the
church's ethical code (i.e., to walk the "Peyote Road"), an individual is
obligated to demonstrate "brotherly love," and, 222 as a result, to "be honest,
truthful, friendly and helpful to one another."
Furthermore, the NAC is generally open to participation by Non-
Members.223 Most NAC churches "maintain[] an 'open door' policy and
do[] not exclude persons on the basis of their race. 224
b. The Native American Sweat Lodge

Sweat lodges have a long history in Native North America.225
Participation in sweat lodges is often associated with healing, prayer, and a
physical and spiritual cleansing of the participant.2 26 Though there are
different sweat lodge traditions,227 sweat lodges are generally covered
structures within which heated rocks are brought.228 Water is poured on the
218. Id.at 155.

219. Id.
220. Id.at 156.
221. See ABERLE, supra note 188, at 13.
222. Id.
223. United States v. Boyll, 774 F. Supp. 1333, 1336 (D.N.M. 1991).
224. Id. Though peyote is considered a Schedule I controlled substance under federal law,
21 U.S.C. 812(c) (2006), the use of peyote is not considered a Schedule I controlled
substance when "used in bona fide religious ceremonies of the Native American Church,
and members of the [NAC] ...are exempt from registration [requirements]," 21 C.F.R.
1307.31 (2006). Courts have recognized that the exemption for NAC members applies to
Non-Members. See Boyll, 774 F. Supp. at 1338-39, 1342; State v. Mooney, 98 P.3d 420,
427 (Utah 2004). But see, Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210,
1216 (5th Cir. 1991) (holding that the special exemption for NAC members extends only to
members of federally recognized Indian tribes who have an established degree of American
Indian ancestry).
225. JOSPEH BRUCHAC, THE NATIVE AMERICAN SWEAT LODGE: HISTORY AND LEGENDS 2
(1993).
226. See id. at 4, 6, 8.
227. See id. at 2. This Note focuses generally on the sweat lodge practices of the Lakota
Sioux. The sweat lodge tradition of the Lakota Sioux is the most widespread. Id.at 2.
228. See id.at 2, 11.
rocks, creating a hot steam that engulfs the participants. 229

Sweat lodges are intensely physical experiences. 230 While the leader
of a ceremony pours water onto the hot rocks, the participants can
experience an intense heat. 23 1 It is during the experience of this heat that
prayers are usually offered.232 While some participants seek cures for
personal ills through their prayers in sweat lodges,233 there is also a strong
communal aspect to how participants act in a sweat lodge.2 34 Participants
are socially authorized to sacrifice themselves for others in the sweat
lodge.2 35 For example, prayers are offered: for other participants, for
individuals who are not present at the ceremony, and for the "people" in
general.236
By engaging in sweat lodges, participants often experience a re-
birth.237 One Lakota described the sweat lodge experience as initiating a
transformation among the participants: "the people you enter the lodge
with, you become their spiritual brothers and sisters.,, 23 ' The sweat lodge
thus helps to establish strong relationships between participants: "[t]he
relationships established through communal prayer and suffering are strong
ones, because to suffer with people (and for others, if you are in the lodge
on behalf of other people) is to form a deep bond with them., 239 The bonds
229. See BUCKO, supra note 201, at 6-8. A sweat ceremony in which water is poured on
hot rocks is referred to as a "vapor-bath" sweat. BRUCHAC, supra note 225, at 11. Though
not the subject of this Note, there are also "direct-fire" sweats in Native North America that
do not include vapor steam. Id.
230. See BUCKO, supra note 201, at 6-8.
231. See id. at 6.
232. See id. at 7.
233. Id. at 92-93.
234. See, e.g., id. at 195.
235. See, e.g., id.
236. See BUCKO, supra note 201, at 7. Cultural anthropologist Raymond Bucko recorded
the following quote from one of the participants:
You experience heat and sweat. Your experience deepens your prayer,
your faith. You feel fortunate you're here. Old people can't be here.
Pray for them. When my mind slips away I remember those who want to
be here, the unfortunate. I can experience and pray. We love and respect
and have compassion for our people, so we are there. In other rounds
only a small part of our prayers are for ourselves; most are for the
people. In winter and summer, the elderly and children suffer the
most-extreme. So now we pray for the children and elderly. We pray
for each other as well in the sweat lodge.
Id. at 213-14.
237. Id. at 199, 201-02.
238. Id. at 201.
239. Id. at216.
that form between sweat lodge participants are "potential kinship" bonds.24
In addition, groups of individuals who participate together in sweat
lodges can include individuals who are Non-Members.2 4 1 Moreover, the
bonds that form among sweat lodge participants can extend beyond praying
for others. 242 For example, the relationship between whites and American
Indians that form around sweat lodge participation can "establish bonds of
mutual aid-spiritual, emotional, and economic.' 243
2. Non-Member Participation in Native American Religions

and the Fostering of Native American Culture
Courts have not clearly defined the meaning of Native American
culture. 244 A general definition of culture, however, points to the term's
broad scope.245 For instance, culture has been defined as "[t]he totality of
socially transmitted behavior patterns, arts, beliefs, institutions, and all
other products of human work and thought., 246 Within such a broad scope,
the practices (i.e., the "behavior patterns" and "beliefs") associated with the
NAC and Native American 247
sweat lodges should be considered part of
Native American culture.
The participation of Non-Member practitioners in practices like the
NAC or sweat lodges helps perpetuate native culture in a couple of
interrelated ways. First, the NAC and sweat lodges authorize and produce 248
social bonds and obligatory relationships of giving between members.
240. Id.
241. Id. at 220. "[W]hites who are viewed as capable of promoting a harmonious
environment within a specific sweat are acceptable ceremonial companions." Id. at 225.
242. See BUCKO, supra note 201, at 225.
243. Id. at 225, 235. Though outside the scope of this Note, the participation of whites in
Lakota ceremonies can also create controversy among Lakotas. Id.
244. See, e.g., United States v. Hardman, 297 F.3d 1116, 1133 n.23 (10th Cir. 2002) (en
banc) (agreeing that the mere survival of Native American cultural practices within the
larger modem culture does not describe the government's compelling interest to protect
Native American culture but, nonetheless, failing to define the nature of the government's
compelling interest); Rupert v. U.S. Fish and Wildlife Serv., 957 F.2d 32, 35 (1st Cir. 1992)
(discussing governmental obligations to protect Native American culture but not analyzing
the scope of the term Native American culture).
245. See THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE, supra note
166.
246. See id.
247. There does not appear to be any question that NAC ceremonies and sweat lodge
ceremonies, at least to the extent that they involve participation by American Indians, are
considered to be Native American. See, e.g., ABERLE, supra note 188, at 125; BRUCHAC,
supra note 225, at 2.
248. See discussion supra Part II.B. 1.
By fostering networks of reciprocity, avenues are created in which Non-

Members provide support that helps perpetuate native ceremonies and, as a
result, native culture.2 49 Support for native ceremonies by Non-Members
includes providing economic aid,250 spiritual support,2 5 and conducting
native ceremonies for Native Americans.252 Since the perpetuation of
religious practices is inseparable from the perpetuation of cultural
practices, 253 the support provided by Non-Members helps perpetuate
American Indian religious practices and, thus, American Indian cultural
practices.
Second, as previously mentioned, NAC and sweat lodge practices
authorize participants to become oriented towards other participants.2 54 To
engage in sweat lodges is to learn to sacrifice oneself for others. 255 For
instance, participants pray for others and develop strong relationships with
their fellow sweat lodge participants. 256 Similarly, NAC members are
expected to show solidarity for one another and, in order to walk the
"Peyote Road," to show "brotherly love" for fellow members.2 1' To the
extent that sweat lodges and the NAC inspire solidarity and relationships
between participants, they create new kinds of communities of cooperation
that are shaped through native religious practices. Since these communities
emerge in and through Native American religious practices, they can be
understood as an extension of and a fostering of Native American culture.
249. See, e.g., United States v. Boyll, 774 F. Supp. 1333, 1337 (D.N.M. 1991)
(discussing how Boyll, a Non-Member who had traveled to Mexico to obtain peyote for use
in NAC services, was arrested while trying to deliver the peyote to an American Indian);
Alcohol and Peyote and Native Americans, http://www.hunterbear.org/alcoholand
_peyote and nativeam.htm (last visited Apr. 27, 2008) (discussing how two Non-
Members, John Warner and Frances Warner, were accepted into a Sioux NAC congregation
and served as "Keepers of the Sacrament"). See United States v. Warner, 595 F. Supp. 595
(D.C.N.D. 1984), for a discussion of the case that was brought against John and Frances
Warner.
250. See BUCKO, supra note 201, at 225 (noting that Non-Members who participate in
sweat lodges sometimes provide economic aid for those Lakotas who sponsor the
ceremonies).
251. Id. at 225-26, 235.
252. See id. at 227-29, 232-34 (discussing how a Jesuit priest ran a sweat lodge for
medicine men and how a Non-Member, who learned the sweat lodge from an American
Indian, conducted sweat lodges).
254. See supra Part ll.B. 1.
255. See discussion supra Part lI.B. 1.
256. See discussion supra Part II.B. 1.b.
257. See ABERLE, supra note 188, at 155; see also discussion supra Part Il.B. .a.
NEW ENGLAND LA WREVIEW [Vol. 42:891
3. Eagle Feathers, Non-Members, and the Fostering of

American Indian Cultural Practices
As mentioned above, eagle feathers are part of NAC and sweat lodge
religious practices 25 8 and are often presented to mark socially valued
acts. 259 Furthermore, it appears that eagle feathers circulate among NAC
participants 260 and sweat lodge participants. 261 Thus, it seems likely that
individuals, including Non-Members, who participate actively in Native
American religious practices like the NAC or sweat lodges and who
properly give of themselves for others, may be honored with eagle feathers.
It is this honoring-both (1) the act of presentation and (2) the subsequent
use of the eagle feathers by Non-Members-that should be understood to
contribute to Native American culture.
a. The Act of Eagle FeatherPresentationand the
Fosteringof Native American Culture
By permitting American Indians to present eagle feathers to Non-
Members who participate substantially in Native American religious
practices, American Indian cultural practices are fostered in three ways.
First, by presenting an eagle feather to a Non-Member, the Native
American presenter enacts the culturally valued practice of thinking about
others and sharing with them. 262 Thus, the practice of presenting an eagle
feather to another, including a Non-Member, orients, in a properly cultural
way, a donor to a recipient. Second, and in a closely related fashion, the
exchange of eagle feathers mirrors the kinds of supportive relationships
that are expected to be constitutive of proper NAC and sweat lodge
religious practices.263 Like exchanges within the NAC and sweat lodges,
258. See supra text accompanying note 205.

259. See supra note 187 and accompanying text.
260. See Anderson, supra note 2, at 66 (noting that Samuel Wilgus participated in NAC
ceremonies and received eagle feathers from American Indians).
261. See Chapko, supra note 201 (describing how an American Indian from Oklahoma
taught the "basics of Indian sweats" to another individual and provided that individual with
sacred items including an eagle feather).
262. See discussion supra Part II.B. 1 (discussing how the NAC and sweat lodges
authorize participants to be oriented towards others); cf PIERRE BOURDIEU, OUTLINE OF A
THEORY OF PRACTICE 72-73 (Richard Nice trans., Cambridge Univ. Press 1977) (critiquing
mechanical models of everyday practices and representations and, instead, offering a theory
of individual dispositions being produced and reproduced through everyday activity). In line
with Bourdieu's overall theory, see id., this Note suggests that the act of presentation of
eagle feathers should not be considered a mere mechanical reproduction of Native American
cultural practices, but a productive act that helps foster the reproduction of Native American
cultural practices.
263. See supra Part 1IB. 1, for a discussion of how, through prayers and other acts,
the act of presenting an eagle feather can be understood as an act that is

supportive of another person.264 Third, to the extent that an eagle feather is
presented to a Non-Member who has properly sacrificed for others, the
presentation of the eagle feather recognizes socially valued Native
American cultural practices. 265 As a result, the presentation of an eagle
feather likely marks a practice that is worthy of social recognition.2 66
Thus, the values of giving, supporting, and sacrifice-practices that
are part of Native American religious ceremonies like the NAC and sweat
lodges-are specifically marked and extolled through the presentation of
the eagle feather.26 7 The specific act of presenting the eagle feather fosters
Native American cultural values through the manifestation of the act
26
itself.
b. The Use of Eagle Feathersby Non-Members and the

Fosteringof Native American Culture
The presentation of eagle feathers to Non-Members who are
participants in Native American religious practices also enables the eagle
feathers to be used in ways that are supportive of Native American
communities and culture. First, the possession of an eagle feather allows an
individual to engage in particular practices that foster Native American
spirituality. 269 For instance, eagle feathers are used to help purify
individuals or spaces during ceremonial practices.2 70 In addition, eagle
participants in the NAC and Native American sweat lodges are expected to be supportive of
others.
264. The eagle feather can be considered supportive of another since it enables prayer.
See, e.g., Pete V. Catches, Zintkala Oyate, 6 HEYoKA MAGAZINE (2006), http://
www.heyokamagazine.com/HEYOKA.6.MEDICINE.PeteCatches.htm ("The eagle feather
is used to cleanse the mind and bring you to a higher state.").
265. Eagle feathers are often given to mark socially valued acts. See Hughes, supra note
187 (noting that eagle feathers are "often used as rewards for good deeds").
266. See supra note 186.
267. Cf. Janie Blankenship, Marine Killed in Iraq Receives Tribal Rites, VFW
MAGAZINE, May 2006, at 42 ("[An American Indian marine killed in Iraq] had an eagle
feather placed on his chest-something done for all those who return from war. His people
consider it to be the highest honor for bravery.").
268. Cf. BOURDIEU, supra note 262, at 72-73. Under a theory of practice, individual acts
both emerge from a social context and help reshape the reproduction of that social context.
See id.
269. See Jill Burcum, Seeking Healing in the Old Ways at Red Lake, Elders Comfort the
Young with Ojibwe Rituals, STAR TRIB. (Minneapolis-St. Paul), Apr. 2, 2005, at 8A; Jessica
Ravitz, Traditional Native American Sweat Ceremonies at a Veterans' Medical Center in
Salt Lake City Offer Patientsan Alternative Path to Healing, SALT LAKE TRIB., Nov. 10,
2006.
270. See Burcum, supra note 269 (describing the ceremonial use of eagle feathers and
feathers help individuals in religious ceremonies offer strong and

supportive prayers for others since the eagle feather is considered strongly
associated with the Creator. 27' As a result, by allowing Non-Members who
participate in American Indian religious practices to possess eagle feathers,
Native American cultural practices are fostered since Non-Members would
be able to use the eagle feathers to assist and support American Indians in
prayer and other ceremonial practices.
Furthermore, the possession of eagle feathers can engender an added
responsibility to be oriented towards American Indian people.2 72 Since
Non-Members who practice an American Indian religion like the NAC or
Native American sweat lodges with American Indians are already expected
to be oriented towards American Indians, 273 the possession of eagle feathers
may increase the degree to which Non-Members feel compelled to
participate in communities of giving with Native Americans. Therefore,
Non-Members may feel even more obligated to assist American Indians
and American Indian communities-thus fostering American Indian
cultural practices.
C. Allowing American Indians to Present Eagle Feathers to Non-
Members Who Actively Participate in Native American
Religious Life Should Not Adversely Affect the Eagle
Population.
While the presentation of eagle feathers to Non-Members may in the
circumstances described above foster Native American culture, the
other materials to help individuals and families discuss a recent tragedy); Ravitz, supra note
269 (describing how eagle feathers, prayers, and cedar were used to help another participant
during a sweat lodge).
271. See American Eagle & Native American Indian, supra note 186 ("The Eagle is
considered to be a messenger to God. It was given the honor of carrying the prayers of man
between the World of Earth and the World of Spirit, where the Creator and grandfathers
reside. To wear or hold an Eagle feather causes the Creator to take immediate notice. With
the Eagle feather, the Creator is honored in the highest way.").
272. Cf Sara Jean Green, 'A New Way of Doing Church Event Brings Together Pastors,
Native Elders, SEATTLE TIMES, Oct. 10, 2001, at BI, available at 2001 WLNR 1351121
(suggesting that a religious leader who was presented with an eagle feather and a ceremonial
shirt by American Indians felt a special responsibility to assist Indian peoples); Stephanie
Irwin, American Indians Honor, Educate at IntertribalEvent, DAYTON DAILY NEWS (Ohio),
June 18, 2006, at A6, available at 2006 WLNR 10588087 (describing how an outfit that
included eagle feathers was used to honor tribal ancestors); Rob Martindale, Smith to Be
Sworn in Saturday, TULSA WORLD, Aug. 13, 1999, at A15, available at 1999 WLNR
7763903 (discussing how the passing of an "eagle tail feather fan" from one Cherokee tribal
chief to another represented "the passing of tribal responsibilities from one chief to
another").
273. See discussion supra Part II.B.1-2.
possession of eagle feathers by Non-Members should only be exempt under

the RFRA if there is not a corresponding burden placed on the eagle
population. As mentioned earlier, a couple of federal courts have expressed
an underlying fear concerning the relationship between allowing Non-
Members to possess eagle feathers and the resulting harm to the eagle
population.7 4 For instance, as suggested in United States v. Lundquist,
there is a fear that allowing Non-Members to apply for eagle feathers
would produce greater waits among American Indians for eagle parts-
thus, increasing the likelihood that there will be an illegal taking of
2 75
eagles.
This Note, however, proposes that allowing American Indians to
present eagle feathers to Non-Members who substantially participate in
native religious practices like the NAC and sweat lodges will not place a
corresponding burden on the eagle population.
1. While There May Be Some Increase in Wait Times for Eagle

Feathers, the Overall Threat to the Eagle Population Should
Decline.
The fear that the eagle population will suffer if Non-Members are
allowed to possess eagle feathers appears to rest on the proposition that the
only threat to the eagle population emanates from the demand for eagles by
American Indians. However, American Indians do not represent the only
category of people who may engage in illegal depredations against the
eagle population. Non-Members who desire to use and pray with eagle
feathers for religious purposes also represent a potential threat to the
existing eagle population. As the court in United States v. Hardman noted,
Non-Members who are strictly banned from accessing eagle feathers
"might be more likely to poach than those who must simply wait. ' '27 6 Thus,
if Non-Members are allowed to receive eagle feathers from American
Indians, there would appear to be a subsequent decrease in the overall
desire for Non-Members to illegally take eagle feathers. The question is
274. See discussion supra Part l.D.l.a, c.

275. See discussion supra Part I.D.l.a. The same fear also appears to be present in
Winddancer. United States v. Winddancer, 435 F. Supp. 2d 687, 698 (M.D. Tenn. 2006)
(noting that "eagle populations would suffer" if among other things the waiting period for
eagle feathers increased). The court in Winddancer also feared that expanding the eligible
recipients of eagle feathers to any religious practitioner, not merely practitioners of a Native
American religion, would increase the black market trade in eagle feathers and thus threaten
the eagle population. See id.Since the change proposed here would only allow a particular
class of Non-Members to access eagle feathers, the concern in Winddancer over an increase
in black market trade arising from a substantial elimination of barriers to eagle feather
possession does not seem relevant.
276. United States v. Hardman, 297 F.3d 1116, 1133 (10th Cir. 2002) (en banc).
whether this decrease in demand for eagle parts that results when American
Indians are allowed to honor Non-Members with eagle feathers is
outweighed by some corresponding increase in demand. This Note argues
that it should not be.
The effect of allowing Non-Members to receive eagle feathers from
American Indians should not have a significant impact on the wait times
that American Indians currently experience when they apply for eagle
feathers. First, since Non-Members will only be eligible to receive eagle
feathers from American Indians, Non-Members will not be applying
directly to the National Eagle Repository for eagle parts.277 Thus, since
Non-Members could only receive eagle feathers from American Indians,
there would not be a situation where hundreds or thousands of Non-
Members would be applying to the National Eagle Repository for eagle
feathers-resulting in the kind of substantial increases in the waits for eagle
parts that the court in Lundquist appeared to fear.278 Second, since eagle
feathers are generally only distributed to deserving individuals, 279 even if
Non-Members receive eagle feathers, those same eagle feathers may not
have been distributed to American Indians.2 80 Thus, there is not necessarily
a one-to-one correspondence in which each eagle feather presented to a
Non-Member is one less feather presented to an American Indian.
Third, in a related sense, since American Indians who obtain eagles or
eagle parts through the National Eagle Repository receive either an entire
eagle or multiple parts of an eagle,2 1 these American Indians may have a
significant number of eagle parts, including eagle feathers, to distribute to
deserving Non-Members and American Indians. Thus, while Non-
Members would be eligible to receive eagle feathers from American
Indians, the feathers may in certain circumstances be "surplus" eagle parts
and, thus, not result in a corresponding increase in demand for eagle parts
among American Indians. Fourth, since Non-Members would be allowed to
bring eagle feathers to Native American religious ceremonies, there may be
a corresponding decrease in the need for American Indians to procure eagle
feathers for such ceremonies.
While allowing American Indians to present eagle feathers to
deserving Non-Members should lessen the Non-Member demand for eagle
parts, there may incidentally be a slight increase in the wait times for
277. See supra Part II.A.

278. See supra text accompanying notes 106-09.
280. Cf Hughes, supra note 187 (noting that eagle feathers "are often used as rewards for
good deeds"); Woody, supra note 187 (quoting a representative of the American Indian
Cultural Exchange as saying that, for "American Indians, an eagle feather is earned for an
extraordinary deed... [and] is a mark of honor").
281. See National Eagle Repository: U.S. Fish & Wildlife Service, supra note 70.
American Indians to receive eagle parts through the National Eagle

Repository. For instance, some American Indians who otherwise would
have received eagle feathers from another American Indian may have to
wait slightly longer to receive such feathers if Non-Members are permitted
to possess eagle feathers. This category of American Indians thus may be
slightly more likely to apply to the National Eagle Repository for eagle
parts than they otherwise would have been. In addition, American Indians
who distribute eagle feathers to others may run out of the eagle parts more
quickly if they are permitted to distribute eagle feathers to Non-Members.
As a result, American Indians who distribute eagle feathers to others may
be more likely to apply more quickly or more often to the National Eagle
Repository for eagle parts than they otherwise would have-though, under
the current structure, American Indians can immediately get back on the
wait list once they have received an eagle or eagle parts, regardless of
whether they have distributed those parts to others.2 82
Thus, there could be a slight increase in wait times to obtain eagle
parts through the National Eagle Repository if American Indians are
permitted to distribute eagle feathers to Non-Members. At the same time,
however, there should be a noticeable decrease in the demand to illegally
take eagles if Non-Members know that they are at least eligible to receive
eagle feathers from American Indians. As a result, there would appear to be
an overall decrease in the demand to illegally take eagles. The fear implicit
in Lundquist that allowing Non-Members to possess eagle feathers would
necessarily increase the vulnerability of the eagle population to illegal
depredations thus appears unfounded with respect to a distribution scheme
that allows American Indians to present eagle feathers to Non-Members
who are substantial participants in Native American religious life.
III. MAKING THE DISTRIBUTION SCHEME A REALITY: CHANGING THE
REGULATIONS TO PERMIT AMERICAN INDIANS TO PRESENT EAGLE
FEATHERS TO A PARTICULAR CLASS OF NON-MEMBERS
The argument here-that there is a less restrictive way to distribute

eagle feathers pursuant to the RFRA-is premised upon American Indians
being able to present eagle feathers to Non-Members who are substantial
participants in Native American religious practices. To help ensure that
only such presentations to Non-Indians are authorized, the federal
regulations should be changed to allow Non-Members and Member Indians
to jointly apply for eagle feather permits for Non-Members. The permit
would allow a Non-Member to possess an eagle feather only if (1) the
feather was presented to him or her by a Member Indian and (2) the
Member Indian possessed a permit to possess the presented eagle feather.
282. Id.
Additionally, in the permit application, the Non-Member and the Member

Indian would have to attest to the role that the Non-Member plays in Native
American religious ceremonies. As a result, there would still be an overall
restriction with respect to whom could possess eagle feathers-but, now,
American Indians could make choices concerning who should carry such
feathers. American Indians would thus be given the opportunity to more
fully expand their religious practices by incorporating Non-Members.
Furthermore, the change in the permitting regulations should not raise
an Establishment Clause problem. The current regulations do not conflict
with the Establishment Clause since eagle feather eligibility is considered
to be based on a political, not religious, classification.28 3 Similarly, the
proposed change here would in essence be based on the same political
classification. Non-Members would not independently be eligible to
receive eagle feathers; instead, Non-Members would only be eligible to
possess eagle feathers if the feathers came through a Member Indian. Thus,
for Establishment Clause purposes, the political status of the Member
Indian would ultimately authorize eligibility, not the religious identity of
the Non-Member.
CONCLUSION: A NEW WAY OF BALANCING THE GOVERNMENT'S

COMPETING INTERESTS
Federal courts have generally upheld the current federal regulations
that prevent Non-Members from possessing eagle feathers for religious
purposes. The current approach of distributing eagle feathers only to
Member Indians has frequently been considered the least restrictive way to
balance the government's interest in preserving Native American culture
and protecting the eagle population. This Note, however, proposes a more
inclusive distribution scheme in which American Indians would be
authorized to present eagle feathers to Non-Members who participate
substantially in Native American religious practices. Such a means of
distribution will promote Native American cultural practices and should not
adversely affect the eagle population. As a result, American Indians will be
able to make their own choices about how they want to expand their
religious practices. In addition, Non-Members who actively participate in
native religious practices will be eligible to use eagle feathers to support
their religious practices and the practices of American Indians.
283. United States v. Winddancer, 435 F. Supp. 2d 687, 697 (M.D. Tenn. 2006) ("By
predicating participation in the eagle repository on an ostensibly political categorization, and
not a religious one, the Department of Interior deftly side-stepped the Establishment Clause
and struck a careful balance between eagle preservation, and the preservation of Native
American cultures.").

Rosecan: A Meaningful Presentation

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Rosecan: A Meaningful Presentation

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A MEANINGFUL PRESENTATION:

PROPOSING A LESS RESTRICTIVE

Abstract: Under the Religious Freedom Restoration Act ("RFRA"), a

Americans. 2 While American Indians from federally recognized American

2. See Brett Anderson, Note, Recognizing Substance. Adoptees andAffiliates of Native

10. Id. at 1134-35.

are so honored with eagle feathers by Member Indians should be eligible to

The second part sketches out a less restrictive way of distributing

I. BACKGROUND: THE EXCLUSION OF NON-MEMBERS FROM POSSESSING

21. See discussion infra Part II.A.

Native American religious ceremonies. This exception was subsequently

A. The Federal Statutory Protection of Eagles

1. The Bald Eagle Protection Act of 1940

27. See discussion infra Part I.A.2.

2. The 1962 Amendment to the BEPA: Providing an Exception

36. Id. at 250-5 1. The BEPA provided that:

included a statutory protection for golden eagles as well as for bald

3. The Migratory Bird Treaty Act

B. The Permitting Process, the National Eagle Repository, and

individuals who are members of federally recognized American Indian

Once an individual has acquired an eagle or eagle parts under a

C. The Religious Freedom Restoration Act

D. Non-Members and the Largely Unsuccessful Use of the RFRA to

substantially burdened .... ).

in gaining access to eagle feathers for religious purposes. 95 While there is

1. Upholding the Federal Regulation of Eagle Feather

a. United States v. Lundquist: Preventinga Non-Member

and during "vision quest[]" ceremonies.102

b. United States v. Antoine: Upholding the Federal

determined that the government had a compelling interest to protect eagles,

c. United States v. Winddancer: The FederalPermitting

2. United States v. Hardman and the Questioning of the Federal

a. Breaking Down the Three FactualScenarios in

federally recognized tribe but lost recognition by the late nineteenth

b. The RFRA Analysis in Hardman

i. The Government Failed to Show That the

The Tenth Circuit found that the government failed to demonstrate

ii. Recognizing That Ultimately the Interests Must

173. Hardman, 297 F.3d at 1133.

to strike some type of balance between the two extremes. The

II. A DIFFERENT METHOD FOR DISTRIBUTING EAGLE FEATHERS TO NON-

176. Id.at 1134-35 (majority opinion) (internal citation omitted).

the government's compelling interests in the least restrictive way.' 83 By

This section takes on the task laid out in Hardman to outline an

A. Allowing American Indians to Distribute Eagle Feathers to Non-

183. See discussion supra Part I.D.2.b.2.

religious practices. 188

could be conducted. 95 Though there is less evidence, David Lundquist, the

B. Eagle Feather Possession by Non-Members Is Not Always

195. See discussion supra Part I.D.2.a.

The argument here-that the presentation of eagle feathers to Non-

1. NAC and Sweat Lodge Basics

sweat lodge.html (last visited Apr. 27, 2008).

a. The Native American Church

207. See discussion infra Part II.B.l.a-b.

addition, the prayers of individual participants often recognize the

b. The Native American Sweat Lodge

218. Id.at 155.

rocks, creating a hot steam that engulfs the participants. 229

2. Non-Member Participation in Native American Religions

By fostering networks of reciprocity, avenues are created in which Non-

3. Eagle Feathers, Non-Members, and the Fostering of

258. See supra text accompanying note 205.

the act of presenting an eagle feather can be understood as an act that is