## Facts

- Federal law generally prohibits possession of eagle feathers under the Migratory Bird Treaty Act (MBTA), 16 U.S.C. § 703, and the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. § 668(a).
- Regulations allow limited possession through permits administered by the U.S. Fish and Wildlife Service; religious-use permits were limited to members of federally recognized Native American tribes.
- Raymond S. Hardman, a non-Indian practitioner of Native American religion, possessed eagle feathers used in ceremonies, was denied a permit because he lacked tribal membership, and was convicted for unlawful possession under the MBTA/BGEPA.
- Samuel Ray Wilgus, Jr. possessed bald and golden eagle feathers for religious purposes, was not a member of a federally recognized tribe (despite claiming adoption), was denied a permit, and was convicted after a conditional guilty plea preserving RFRA claims.
- Joseluis Saenz, a lineal descendant of the Chiricahua Apache (not federally recognized as a separate tribe), had his eagle feathers seized; he was not criminally prosecuted and sought return of the feathers through a Fed. R. Crim. P. 41(e) motion, which the district court granted.
- The Tenth Circuit reheard the consolidated matters en banc to decide whether RFRA permitted possession notwithstanding the permit restriction.

## Issues

1. Whether RFRA applies to federal enforcement and permitting actions under the MBTA/BGEPA eagle-feather scheme.
2. Whether denying access to eagle feathers under the scheme substantially burdens the religious exercise of nonmembers and descendants of nonrecognized tribes.
3. Whether restricting religious-use permits to members of federally recognized tribes is the least restrictive means of furthering compelling interests in eagle conservation and protection of Native American culture.

## Decision

- RFRA applied to the prosecutions and the seizure/permit-related actions at issue.
- The court accepted that the claimants’ religious exercise was substantially burdened by the denial of lawful access to eagle feathers.
- The government asserted compelling interests in protecting eagle populations and preserving Native American culture by prioritizing limited feather supplies.
- As to Hardman and Wilgus, the court remanded for further fact-finding on whether limiting permits to members of federally recognized tribes was the least restrictive means under RFRA.
- As to Saenz, the court affirmed the order requiring return of the seized feathers because the government did not carry its RFRA burden to justify the restriction as the least restrictive means.
- Hardman waived any Establishment Clause challenge at oral argument; the decision turned on RFRA.

## Legal Principles

- RFRA governs federal government action that substantially burdens a person’s exercise of religion, including enforcement of federal wildlife-protection statutes and related permitting decisions.
- Once a substantial burden is shown, the government must prove (1) a compelling governmental interest and (2) that applying the burden to the person is the least restrictive means of furthering that interest.
- The least-restrictive-means requirement places the burden on the government to show that no less restrictive alternative would adequately serve its interests.
- When the record does not permit a reliable least-restrictive-means determination in a criminal case, remand for additional factual development may be required.
- In a property-return proceeding, if the government cannot justify continued retention under RFRA’s test, the claimant is entitled to relief.

## Conclusion

The en banc court held RFRA applicable to the eagle-feather regulatory scheme and required strict scrutiny of the tribal-membership permit limitation: it remanded the criminal cases for additional fact-finding on least restrictive means and affirmed the return of seized feathers where the government failed to justify the restriction under RFRA.


United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002) (en banc)