The bald eagle (image) is currently protected by three acts of Congress: the Bald and Golden Eagle Protection Act (16 U.S.C. § 668), the Migratory Bird Treaty Act of 1918 (16 U.S.C. §§ 703-711), and the Endangered Species Act of 1973 (16 U.S.C. §§ 1531-1543). The golden eagle is likewise covered by the BGEPA and the MBTA, but does not retain coverage under the ESA as it is not listed as an endangered or threatened species. (See, Section 6, infra.) The BGEPA is a federal law and no private right of action exists under the statute. (See, Protect our Eagles v. City of Lawrence, 715 F.Supp. 996 (D. Kan. 1989), where concerned citizens unsuccessfully sought to enjoin the destruction of a grove of cottonwood trees used as perches by eagles under the BGEPA and other statutes). The history of the BGEPA demonstrates an act that has evolved to meet the changing needs of the species and people for whom the eagle is a central figure.

A. The Bald Eagle Becomes a Ward of the Federal Government

Congressional attention first focused on the eagle in the late 1930’s. It became well known that the bald eagle was declining at an alarming rate.

The decline of bald eagle populations was first noticed in the late 1930's. Throughout the United States and Canada bald eagle populations dwindled. In several areas breeding populations disappeared entirely. A variety of causes was suspected for the decline, including loss of habitat, illegal shooting, pesticides, electrocution from high voltage lines, and other human disturbances.

Tina S. Boradiansky, Conflicting Values: The Religious Killing of Federally Protected Wildlife, 30 Nat. Resources J. 709 (1990).

In 1940, Congress acted to prevent what seemed to be the inevitable destruction of the Nation’s symbol. The purpose behind the enactment of the 1940 version of the Bald Eagle Act, as it was then known, can be explained through the words from the Acting Secretary of Agriculture in 1939:

The preamble to the original act is also illustrative of the great importance attached to this raptor.

Whereas the Continental Congress in 1782 adopted the bald eagle as the national symbol; and

Whereas the bald eagle thus became the symbolic representation of a new nation under a new government in a new world; and

Whereas by that Act of Congress and by tradition and custom during the life of this Nation, the bald eagle is no longer a mere bird of biological interest but a symbol of the American ideals of freedom; and

Whereas the bald eagle is now threatened with extinction: Therefore

Be it enacted * * *, etc.

June 8, 1940, c. 278, § 1, 54 Stat. 250.; See also, White, supra.

While the words put to paper in the Eagle Act embodied a national attitude toward the bald eagle, mortality rates still climbed. It was following World War II that a new threat emerged to the eagle population. This once majestic aquatic predator had already experienced drastic mortality due to direct hunting and habitat loss. However, it was the increasing use of the insecticide DDT (dichloro-diphenyl-trichloroethane) and other organochlorine compounds that posed a unique risk to these carnivores. As the eagles consumed fish contaminated with DDT, the organic compounds bio-accumulated in their fatty tissues. This resulted in direct mortality to the eagles as well as shell thinning in eggs.

More recently high concentrations of DDT, DDE, and diedrin, all of which cause eggshell thinning and drastically reduce reproductive success, have been found in the body tissue of eagles. After Congress banned DDT in 1972, scientists noticed a rapid and unexpected decrease in DDE levels. Because DDE is one of the most persistent contaminants in the environment, they were able to determine that the surprisingly low levels of DDE were caused by a high level of turnover (deaths of adult and subadult birds) in eagle populations. [footnotes omitted]

Boradiansky, supra, at ---. This resulted in the subsequent banning of DDT. See, Kenneth P. Pitt, Eagles and Indians: The Law and the Survival of a Species,100 5 Pub. Land. L. Rev. 100 109 (1984), citing Exec. Order No. 11,643, 37 Fed. Reg. 2,875 (1972), and citing J. Grier, Ban of DDT and Subsequent Recovery of Reproduction in Bald Eagles, 218 Science 1232 (1982).

It became apparent that more had to be done to protect the bald eagle. The bird still experienced direct mortality due to hunting. Ironically, it was the protection of a related species that served to further protect the bald eagle.

B. The Golden Eagle Obtains Protected Status

Joint Resolution to provide protection for the golden eagle.

WHEREAS the population of the golden eagle has declined at such an alarming rate that it is now threatened with extinction; and

WHEREAS the golden eagle should be preserved because of its value to agriculture in the control of rodents; and

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: Now, therefore, be it . . .

1962 U.S. Code Cong. & Admin. News, p. 1453. Act of October 24, 1962, Pub.L. No. 87-884, 76 Stat. 1246. See also, White at --.

The amendment was adopted in part to preserve the declining golden eagle population, but also as an additional protective measure for the bald eagle, as the two species are relatively indistinguishable in the first few years of life. However, including the golden eagle under the ambit of the statute raised a new issue. Golden eagles, like bald eagles, are revered in Indian religious culture as spiritual icons or messengers. Prior to the inclusion of the golden eagle, Indian tribes ostensibly hunted or collected golden eagles as needed for religious ceremonies. Now with both birds protected by federal law, Congress became aware of the need to provide a mechanism for Indian religious use of eagles.

C. The Indian Religious Exception

Recognizing the central role the eagle plays in Native American religious culture, Congress created a specific exemption for possession of the eagle for religious purposes of Indian tribes. Thus, the 1962 amendments provided not only for the preservation of the golden eagle, but also the preservation of a cultural practice.

Congressional House debate surrounding the 1962 amendments took particular notice of the fact that the golden eagle is ‘important in enabling many Indian tribes, particularly those in the southwest, to continue ancient customs and ceremonies that are of deep religious or emotional significance to them.’ Similarly the Department of the Interior observed that ‘the eagle, by reason of its majestic, solitary, and mysterious nature, became an especial object of worship. . . . The mythology of almost every tribe is replete with eagle beings.’ Congress concluded that with the addition of golden eagles to BEPA an exception should be created for Indian religious use.

Boradiansky, supra, at --. Not only did this amendment allow for the use of eagles for Indian religious purposes, but it also allowed individuals to obtain permits for scientific or exhibition purposes. 16 U.S.C. §668a. However, it is the former aspect of the amendment that has created the greatest controversy with the Act to date. (See, Section 4, infra, for more detail).

D. The Eagle Act Falls Short

The 1972 amendments to the BGEPA were directed at the penalty component of the Act. Faced with this increased population pressure in addition to hunting and habitat destruction, Congress enhanced the penalties under the BGEPA in 1972, and provided a subsequent violation component under the statute. As a result of these amendments, violators would now face fines up to $5,000 and imprisonment up to one year for a first conviction, and fines up to $10,000 for a subsequent conviction and imprisonment up to two years. As noted in White, Congress was "again aroused by the useless destruction and possible extinction of these great birds." Id. at --. The White court noted that after the act passed the House of Representatives, the Assistant Secretary of the Interior, Nathanial P. Reed wrote to Senator Magnuson, Chairman of the Committee on Commerce, urging the passage of the amendments.

There exist but 10-20,000 golden eagles in North America, and 20-30,000 northern bald eagles. The prompt enactment of H.R. 12186 will help to protect these majestic birds, aptly described by the Congress in 1940 as ‘a symbol of the American ideals of freedom.’

1972 U.S. Code Cong. & Admin. News, pp. 4292-4293.

Even more significant was evidence that the act was not being adequately enforced. On its face, the BGEPA is directed at deterring three types of human conduct related to eagles: (1) removal of eagles from their wild or natural habitats; (2) possession and transportation of eagles acquired without a permit; and (3) acts of transfer to others in the stream of commerce. Ostensibly, the first behavior is the most difficult to prevent and apprehend those who engage in it as it is nearly impossible to patrol the vast eagle habitat. This perhaps in itself explains the paltry enforcement of the BGEPA prior to the 1972 amendments. Thus, the 1972 amendments struck at the most apparent and pervasive threat to the eagle population – commerce. Indeed, the language of the statute catalogs the specific commercial activities prohibited under the Act: "sell, purchase, barter, offer to sell, purchase or barter, transport, export or import." 16 U.S.C. §668(a). In doing so, Congress explicitly determined that incentive of demand for eagle artifacts continued to threaten the eagle’s survival. Since the process of criminal prosecution is slowed by the overburdened caseload often facing federal prosecutors, the amendments added a civil component to the statute. By creating a civil penalty and a civil forfeiture provision, the drafters sought to remedy inadequate enforcement.

Additionally, the newly enacted enhanced penalty provisions included not only increased criminal penalties, but also additional punishment in the form of cancellation of government grazing contracts. This was directed at the widespread destruction of eagles by large-scale ranch operations.

During the 1972 congressional debate, the Department of the Interior revealed that only 32 federal convictions had been obtained under the act in the previous five years, with violators averaging a $50 fine per incident . . . Congress also added civil penalties of $5,000 per violation for the first time. The Senate also took congressional notice of the continued killing of eagles by ranchers and farmers, who sometimes destroyed large numbers by aerial shooting. As a result, Congress designed a penalty designed to strike fear into the heart of ranching country: the cancellation of grazing rights.

Boradiansky, supra, at --. Moreover, to encourage enforcement of the BGEPA, the statute now provided that one-half of any fine up to $2,500 would be paid to any person giving information that leads to a conviction under the statute. 16 U.S.C. § 668(a) ; Boradiansky, supra, at --. While there is no caselaw concerning the "incentive" requirement under the amended statute, it certainly provides a unique statutory deterrent mechanism.

Criminal prosecutions were further enhanced by a change to the statutory language. The statutory definition of "take" was also broadened by the 1972 amendments to encompass a greater range of destructive activities. The term "take" as the statute currently reads includes to:

pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb; "transport" includes also 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.

This wording specifically targets activities beyond traditional hunting and poaching. (See, Section 2, infra, for more details). (Note: the 1972 amendments added the term "poison" to the definition of "take," and changed "molest" to "otherwise willfully molest" as well. 1972 - Pub.L. 92-535.) Other changes were added in 1970’s , including the proviso that the Secretary of the Interior may permit the taking, possession, and transportation of golden eagles for the purposes of falconry with exception that only golden eagles that cause depredations on livestock and wildlife may be taken for falconry. 1972 Pub.L. 92-535. The Secretary of the Interior was also empowered by a 1978 amendment to permit the taking of golden eagle nests from sites that were deemed to be interfering with resource development or recovery operations. 16 U.S.C. § 668c; 1978 - Pub.L. 95-616.

The 1972 amendments also centered on the lack of adequate prosecution under the act. The 1940 version of the statute required proof of willful conduct for conviction. Congress amended the statute to lessen the degree of knowledge required to convict violators, from "willfully" to "knowingly or with wanton disregard for the consequences of his act." 16 U.S.C. § 668(a). Of particular influence to the Legislature was the paltry enforcement of violations of the Eagle Act.

Over the past 5-year period, there have been only 32 Federal convictions under the Act, with fines and court costs totaling a meager $2,235. Although violators were subject to a maximum fine of $500, it appears that each violator convicted under the Act was fined an average of only about $50 per incident. In order to prevent, or deter, the taking of eagles in the future, violators should be subjected to greater penalties than allowed in the current law, and the amount of knowledge required to be proved in order to obtain a conviction in this type of case should be reduced. The committee concludes that it is only in this way that bald and golden eagles can be given the protection to which they are entitled.

Senate Report No. 92-1159, U.S. Cong. & Admin.News, 92^nd Cong., 2d Sess. 1972, p. 4288; See also, Hetzel, at --. This reduction in the specific intent under the Act

The forfeiture provision of the statute was also added in 1972. This section authorizes the seizing of eagle parts obtained through enforcement of the Eagle Act as well as the instrumentalities used to obtain those eagles or their parts. 16 U.S.C. § 668b(b). This includes guns, traps, nets and any means of transportation used in obtaining the eagles (i.e., boats, cars, and aircraft). The combination of penalties combined to create one of the strictest wildlife statutes in operation.

E. The State of the Law Today

The enforcement scheme under the Act is extensive. The penalty provisions and intent component have remained unchanged since the 1972 amendments. Additionally, under the BGEPA, any employee of the Department of the Interior authorized to enforce the provisions of the statute, may arrest individuals for violations committed in the employee’s presence without a warrant. 16 U.S.C. 668b. This provision incorporated the specific language of Section 5 of the Migratory Bird Treaty Act, as amended, which was previously incorporated only by reference. White at --. Additionally, the Department of the Interior (DOI) is authorized by statute to enter into cooperative agreements with state fish and wildlife agencies to enforce the provisions of the statute. Any court with jurisdiction to hear federal cases is authorized to issue warrants under the statute. 16 U.S.C. § 668b(a). This network of regulatory and enforcement measures have made the BGEPA one of the most successful wildlife statutes to date.

Interestingly, it is not the enforcement of the statute nor the stringent penalties associated with it that have created the most controversy for the courts. Rather, it is the limitation of the use of eagle parts to Native Americans and the concomitant constitutional challenges that target the BGEPA. The Code of Federal Regulations now explicitly lists the requirements for permits to take eagles for scientific and exhibition purposes as well as Indian religious purposes. 50 C.F.R. § 22.21-22.22. It is that permit process that continues to spawn much of the litigation under the BGEPA today. (See, Section 4, infra). Moreover, while the amended statute lists in its definitional section the term "whoever" as including associations, partnerships, and corporations, it does not specifically include "Indians." 16 U.S.C. § 668c. This in and of itself has created controversy as early court decisions held that Indians hunting eagles on reservations were exempted from the Act due to pre-existing treaties. (See, Section 4, infra). While the Supreme Court has resolved the issue of treaty abrogation, religious challenges remain hotbeds of litigation to the BGEPA.

The following describes the pertinent components of the BGEPA:

1. No one is entitled to possess a bald or its parts obtained after 1940 or a golden eagle obtained after 1962 unless he or she possesses a valid permit. However, it is lawful to possess pre-Act birds or their parts.
2. The statute prohibits illegal possession where a person does so "knowingly or with wanton disregard for the consequences"; these terms are undefined in the statute.
3. Any form of commerce in eagle parts, whether obtained before or after the date of the BGEPA’s enactment, is strictly prohibited. There are no exceptions to this provision.
4. The statute provides both civil and criminal penalties as well as the potential for loss of grazing contracts with the federal government.
5. Anything used to take or kill an eagle is subject to forfeiture under the BGEPA. This includes not only guns, traps, and nets, but also cars, boats, and other equipment.
6. Only Bureau of Indian Affairs certified tribe members may obtain Indian religious permits under the BGEPA.
7. The statute does not provide for any protection of habitat, save for the protection of eagle nests. The term "take" does include molesting and disturbing eagles, which could be broadly construed to protecting immediate nesting sites. This is significant because the greatest potential threat to eagle sustainability is habitat preservation.

2. Criminal Prosecution of Eagle Violations: A Question of Intent

The BGEPA provides for criminal prosecution in addition to civil fines. The severe penalties under the statute reflect an intent by Congress to deter any form of taking. However, it is the degree of criminal intent under the statute that has resulted in the most consideration by the courts.

The statute does not define the term "knowingly" or what constitutes "wanton disregard for the consequences." While the amended statute clearly states the level of intent required for conviction, the issue of "innocent possession" still remains. The intent under the statute is subject to judicial interpretation. What is clear, however, from the definition of "take" under the statute is that a Congress intended the statute to cover a broad expanse of intentional activities that result in harm to eagles. Thus, it is the intent of an individual rather than solely his or her actions that will subject him or her to liability under the BGEPA.

A. Requisite Criminal Intent

Intent forms the basis of most criminal prosecutions. The language of the BGEPA indicates Congress intended the Eagle Act to require a mens rea. The Act states that one is subject to conviction if he or she:

possesses or otherwise takes an eagle or its parts. This level of intent initially raises several interesting issues. How many average Americans are aware that the following could subject them to a federal crime?

1. Molly Migratory pockets an interesting feather on a hiking trip in New Mexico. Upon further research, Molly discovers the feather belongs to that of Acquila chrysaetos, the golden eagle. Despite this discovery, Molly decides to use the feather in an art project.
2. Harry Haliaeetus is vacationing in Arizona. After visiting a Hopi Reservation, Harry stops at a roadside stand selling Native American artifacts. Harry purchases a beautiful Kachina doll made with many feathers. Harry thinks his daughter Harriet will love the doll and is ecstatic because he doesn’t pay any tax on the doll. Harry is nearly sure the feathers are eagle feathers, but figures it’s not hurting anything. The woman tells him not to say from where he purchased the doll.
3. Farmer Feather is tired of finding dead chickens on his free-range farm. As a lifelong rancher, he is familiar with bird species, both domesticated and wild. One day, he notices a large bird swoop down and snag one of his young hens. Farmer Feather takes his trusty Winchester and shoots down the bird, which he surmises is a raptor of some sort.
4. Suzy Sioux inherited a large wall-hanging from her Native American great-grandmother. Suzy knows the artifact dates back at least 65 years. While she loves the idea of traditional art, Suzy’s house is strictly contemporary. Suzy decides to sell the piece to a local collector so that she can fund a new painting.

In all of these examples, each person could be subject to criminal prosecution under the Eagle Act. Each example illustrates a prohibited taking of an eagle or eagle part (i.e., possession, purchase, killing, and selling). It is the intent divined from each example that determines prosecution under the Act.

As originally enacted, the Eagle Act prohibited the "willful" possession and taking of bald eagles. This reflected the specific concern of Congress of the potential extinction of the bald eagle. Despite the inclusion of the golden eagle in 1962, the population of both species still experienced a decline. Not until 1972 did Congress amend the statutory penalties and intent. Inflamed by the senseless slaughter of hundreds of eagles by Western ranchers, Congress reduced the mens rea required for conviction from "willfully" to "knowingly" and "with wanton disregard for the consequences" and increased the penalties upon convictions.  U.S. v. Moon Lake Electric Ass'n, Inc., 45 F.Supp.2d 1070, D.Colo., 1999); Act of October 23, 1972, Pub.L. No. 92- 535, 86 Stat. 1064.

It is important to note that the BGEPA was modeled after the Migratory Bird Treaty Act. U.S. v. Moon Lake Electric Ass'n, Inc., 45 F.Supp.2d 1070, D.Colo., 1999). However, as was established in Hetzel, the Eagle Act is not a strict liability crime unlike the MBTA.

The BGEPA applies only to those who act ‘knowingly, or with wanton disregard for the consequences’ of their acts. 16 U.S.C. § 668c; see also S.Rep. No. 92-1159, at 5, reprinted in 1972 U.S.C.C.A.N. 4285, 4289 (the defendant ‘must be conscious from his knowledge of surrounding circumstances and conditions that conduct will naturally and probably result in injury’ to a protected bird).

Moon Lake, supra, at --. The MBTA, on the other, provides that one is subject to conviction for merely taking protected birds.

The court in Hetzel seemed most offended by the government’s implication that defendant should have reported the finding of the eagle carcass. As the court observed, the statute contains no citizen reporting requirement, only an incentive provision. It is arguable, however, that Hetzel’s possession of the eagle was knowing. The statute does not distinguish the type of knowledge one must have to constitute criminal possession (e.g., knowledge based on some form of malice or recklessness, or simple knowledge of one’s actions). In the magistrate’s findings of facts, he noted that defendant did not know that removing the talons from the eagle for the Boy Scout function was a violation of the law. This surely brings to mind the legal maxim that ignorance of the law is no defense. One wonders whether the court would have been so sympathetic to defendant’s plight had he intended to use the talons in an offensive ritual or anti-American display of art.

The Hetzel decision is often relied upon for its analysis of the intent component under the BGEPA. However, despite the court’s ultimate finding, it is arguable under the facts that the defendant indeed possessed the eagle parts with the requisite intent. First, defendant was unequivocally aware that the carcass was that of an eagle, for he specifically removed the legs to show his Boy Scout troop. Secondly, he knowingly picked up the eagle and later dissected the eagle to obtain the desired parts. Lastly, he actually transported the eagle from its resting spot to his vehicle for exhibition purposes without first obtaining a permit. The statute does not distinguish innocent possession, or possession without knowledge of the illegality from possession with knowledge of the eagle’s protected status. As the oft-touted legal maxim statues, ignorance is no defense to the law. As with the previous examples of violations based on possession, purchase, killing, and selling, the law does not distinguish based on the type of activity. Rather, it is the intent one possesses that determines prosecution. Based on a plain reading of the BGEPA, the viability of the factual determination in Hetzel is tenuous at best.

This degree of intent under the 1972 BGEPA standard was again examined in U.S. v. Corbin Farm Service, 444 F.Supp. 510.(D.C.Cal. 1978). While the facts of the case did not implicate the BGEPA, the court used the language of the BGEPA to distinguish the degree of intent required under the MBTA. Citing the Senate Report related to the 1972 amendments, the court focused on the difference between "knowingly" and "with wanton disregard:"

The word "knowingly" means that the offender knew what he was about to do and, with such knowledge, proceeded to do the act. The additional words "with wanton disregard for the consequences of his act" were also added to lessen the degree (of) knowledge required to be proved in order to obtain a conviction under the Act. The evidence would have to show more than mere negligence; while there is no intent to injure, the person must be conscious from his knowledge of surrounding circumstances and conditions that his conduct will naturally and probably result in injury.

Id. at --. This again begs the question of whether an average person would have knowledge that his or her possession of an eagle feather would "naturally and probably result in injury." While this change in the level of intent was said to result from congressional outcry over the aerial killing of several hundred eagles by ranchers in the Southwest (See, Section 1D, supra for further details), its application to individuals remains unclear.

Recent decisions have not elaborated on the level of intent. It is quite clear, however, that innocent possession is an unlikely defense despite the court’s sympathy to the defendant in Hetzel. Interestingly, the previous examples all illustrate situations where one could face prosecution under the BGEPA. However, while an individual could be prosecuted for removing a golden eagle nest for a classroom project, resource development operators have been given special clearance. In 1983, the federal regulations were amended to allow mining operators to remove inactive golden eagle nests under certain circumstances. See, 48 F.R. 57295 (December 29, 1983). Indeed, the regulations have often provided more contravention to the language of the statute than do judicial opinions.

B. Electrocutions and Poisoning - Beyond Hunting and Poaching

The language of the BGEPA covers a broad expanse of activities not just those associated with traditional hunting. This was intentional on Congress’ part, as it recognized the diverse nature of activities that threatened the eagle’s survival. While the statute requires a minimal level of intent, the application of this standard appears to depend on the level of knowledge a defendant should have. In the case of electric companies, this included inadequate measures to protect eagles from electrocutions on power lines. Further, in 1972, the BGEPA was amended to added the word "poison" to its definition of take. 16 U.S.C. § 668c. This specific change was directed at the responsibility of large-scale farmers to protect wildlife from poisoning by agrichemicals. (See generally, Corbin Farm Service, supra).

The intent to include electrocutions as a form of "taking" was judicially recognized in Moon Lake. The defendants in that case were charged with killing eagles under both the MBTA and the BGEPA after Moon Lake, a "rural electrical distribution cooperative," caused the death of 38 birds of prey including eagles. The death of the birds resulted from them roosting on power poles that were not equipped to prevent this mortality, despite the relatively inexpensive cost of the equipment. Moon Lake.

On appeal, Moon Lake argued that both the MBTA and the BGEPA were designed to address only those activities traditionally associated with hunting and poaching. Id. Moreover, Moon Lake further contended that the electrocutions at issue were not intentional; thus the company lacked the requisite mens rea under both statues.

The court disagreed finding the plain language of both statutes belied defendant’s argument.

Only taking, shooting, shooting at, capturing, and trapping constitute acts normally associated with hunting and poaching. By prohibiting poisoning," "killing," "possessing," "molesting," and "disturbing" in addition to the acts normally associated with hunting, the BGEPA, like the MBTA, suggests that Congress intended to regulate conduct beyond the sort engaged in by hunters and poachers. And, as does the MBTA, the BGEPA proscribes taking or killing "at any time or in any manner." 16 U.S.C. § 668(a).

Id. at --. The court also found the BGEPA legislative history instructive on the issue of intent. Perhaps the most significant piece to the court was the congressional hearings surrounding the 1972 amendments. As observed by the Moon Lake court, eagle electrocution was explicitly discussed before the Senate Committee on Commerce:

Sen. Spong: What progress is being made in protecting eagles from electrocution in the West?

Mr. Hansen: We are very gratified to report that substantial progress has been made within the past year to correct this situation. Electrocution on power transmission poles in the West has been a low grade but constant source of eagle deaths for many years . . . We are getting on top of this situation very well.

Mr. Reed: . . . As you know, the great problem is when the bird lands with his wings outspread and takes off with his wings outspread. He can make contact between two wires and that will electrocute him. And, or course, the power line is a place which a bird of prey enjoys sitting on because he has a great view of the countryside and can see his prey. So they are naturally attracted. If the stringers are placed further apart it avoids the problem of accidental electrocution.

Moon Lake, supra, at --, citing the Bald Eagle Protection Act: Hearings on S.2547, H.R.12186, and H.R.14731 Before the Subcomm. on the Environment of the Senate Comm. on Commerce, 92nd Cong. 22-24, Serial No. 92-63 (June 29, 1972) (statements of Senator William B. Spong, Jr. (Virginia) and Nathaniel P. Reed, Assistant Secretary of the Interior for Fish and Wildlife and Parks).  The court’s conclusion regarding liability for electrocution under the BGEPA was further supported in the legislative record:

We have your memorandum of July 19, 1972, inquiring as to the liability of power companies under the provisions of H.R.12186. The proposed legislation . . . means that the power companies would not be liable for acts committed prior to the date of enactment. However, since power lines have a tendency to destroy eagles, such lines erected after the date of enactment should provide such safeguards as are available in order for the power companies to avoid the charge of acting with ‘negligent disregard for the consequences’ of their acts. This obligation would be no more of a burden upon power companies than upon any other person or organization performing operations which had a tendency to destroy wildlife. In every case, reasonable precautions would have to be taken to prevent the killing of eagles.

(Ltr. from C. Brester Chapman, Jr., Associate Solicitor, U.S. Department of the Interior, to Spencer H. Smith of 7/20/92, reprinted in Hearings at 24.)

Moon Lake, at ---.

Likewise, the BGEPA also encompasses death to eagles through poisoning. The Moon Lake court indicated that the Senate hearings also addressed the issue of intent specifically with regard to poisoning:

[Mr. Reed:] For example, if an individual in placing a poison should kill an eagle we have to prove that this was a willful action. With the change in language this will indicate to us that if the person using the poison knows that the poison has the capability to kill wildlife, and is using it with negligent disregard for the consequences of his act, it makes our enforcement position much stronger.

Sen. Spong: So it would be easier to gain conviction?

Mr. Smith: Correct, sir.

Moon Lake, supra, at --.

The issue of poisoning under both the BGEPA and MBTA was also explored in Corbin Farm Service. In Corbin Farm Service, an alfalfa field owner sprayed the field with a registered pesticide were charged with misdemeanor violations of the Federal Insecticide, Fungicide, and Rodenticide Act and the Migratory Bird Treaty Act, stemming from the death of American widgeon, a waterfowl protected under the MBTA.

The court’s ruling further solidified that the BGEPA covered acts beyond traditional hunting. Indeed, the word "poison" was added to the BGEPA by the 1972 Amendments. Corbin Farm Service; Act of Oct. 23, 1972, Pub.L.No.92-535, s 4, 86 Stat. 1065. The court observed that the primary purpose of the amendment was to reduce the scienter requirement. Corbin Farm Service; See, S.Rep.No.1159, 92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.Code Cong. & Admin.News p. 4285. This was due in part to the fact that "[t]he Interior Department had taken the view that the Act did not apply to poisoning prior to the amendment unless the poison was deliberately put out to kill eagles." Corbin Farm Service, supra, at --. The court in fact used this legislative history to buttress its argument that the MBTA likewise covered poisoning. The expansive nature of activities under the BGEPA is directed at deterring reckless and negligent killing of eagles by profit-driven corporations. This feature is but one of the many deterrent mechanisms under the Act.

C. Loss of Grazing Rights is a Collateral Matter

Perhaps one of the most unique deterrent provision under the BGEPA is the grazing rights component. The BGEPA provides that, in addition to criminal and civil penalties, any person convicted under the statute may lose his or her grazing contracts with the federal government. This component was added to the BGEPA in the 1972 amendments. Faced with lax enforcement of eagle violations under the act, Congress sought to put some teeth behind the penalties. After several hundred eagles were shot by ranchers in the Western states, Congress sought to deter mass killings by large-scale livestock operations.

Senate Report No. 92-1159, U.S. Cong. & Admin.News, 92^nd Cong., 2d Sess. 1972, p. 4285, reflects Congressional concern with the then recent slaughter of nearly 500 rare bald and golden eagles which were gunned down from helicopters over ranches in Wyoming and Colorado during 1971. The Department of Interior's estimates of a golden eagle population of between 10,000 and 20,000 birds, and a bald eagle population of between 20,000 and 30,000 birds was noted, together with the fact that only an estimated 600 pairs of northern bald eagles and less than 400 pairs of southern bald eagles nested in the contiguous United States in 1971.

See, United States v. Hetzel, 385 F.Supp. 1311 (W.D. Missouri 1974), citing, Senate Report No. 92-1159, U.S. Cong. & Admin.News, 92^nd Cong., 2d Sess. 1972, p. 4285.

This penalty provision was recently deemed a "collateral" aspect of conviction by one district court. In U.S. v. Okelberry, 112 F.Supp.2d 1246 (D.Utah, 2000), the court held that counsel is not deemed ineffective for failing to advise defendant that he may lose his grazing rights with the government if convicted under the BGEPA. Defendant Okelberry was a livestock rancher in Utah. In a controlled operation by Fish and Wildlife agents to obtain further evidence against defendant who was suspected of setting out poison traps, agents set up a "ruse" site next to an existing poison trap. At this site, agents set a deceased carcass of an eagle, skunk, and deer. An agent with whom defendant was acquainted then called defendant and told him that he saw some carcasses without telling him the location of the carcasses nor what action to take. A camera set up at the ruse site then detected defendant loading the eagle carcass onto the bed of his truck. Defendant was then indicted after the eagle carcass was discovered in the bed of his truck.

Okelberry ultimately pled guilty to the violation. However, after sentencing, he challenged the basis of his plea, alleging that he was not informed of the loss of grazing rights. The court denied his motion to withdraw his plea for ineffective assistance of counsel, finding both the permissive language of the grazing provision as well as the collateral nature of the sanction made it a collateral matter. Counsel need not inform a defendant of every collateral aspect in pleading guilty. The court found the sentence fair and just in light of the circumstances and likewise found his plea need not be invalidated for the court’s failure to advise defendant of this consequence.

D. The Enhanced Penalty Provision

The enhanced penalty provision of the BGEPA is another significant deterrent feature of the statute. Section 668(a) of the BGEPA states:

Provided, That in the case of a second or subsequent conviction for a violation of this section committed after October 23, 1972, such person shall be fined not more than $10,000 or imprisoned not more than two years, or both: Provided further, That the commission of each taking shall constitute a separate violation of this section . . .

The language regarding the enhanced penalty provision was challenged in United States v. Street, 257 F.3d 869 (8^th Cir. 2001). The court in Street held that the enhanced penalty provision of the Eagle Act is triggered by a second violation, not a second conviction. The defendant is Street argued that the Act requires a conviction before the commission of the second violation to fall within the ambit of the enhanced penalty provision. The court disagreed, finding that multiple convictions in a single proceeding were sufficient to trigger the enhanced penalty provision. Thus, the court affirmed defendant’s felony conviction and sentence of sixteen months imprisonment.

The comprehensive scheme of deterrent and punitive features embodies the statute’s primary directive. Within the prohibited activities under the BGEPA, it is commerce in eagle parts that captures the most attention.

3. Commerce: a Prohibited Strand in the Bundle of Property Rights

The BGEPA strictly prohibits possession of bald and golden eagles and their constituent parts. 16 U.S.C. 668(a).  However, it is the commerce in eagle parts that courts have focused upon as a specific threat to the eagle’s survival. Commercial demand necessarily feeds the need to take more eagles. It is this cycle fostered by a monetary incentive that Congress determined particularly dangerous to the eagle. The act itself explicitly lists all forms of commerce prohibited under the Act:

Sell, purchase, barter, offer to sell, purchase or barter, transport, export or import at any time or any manner . . .

The regulations go further by prohibiting the commerce in lawfully acquired eagle parts.

(2) You may not transport into or out of the United States, import, export, purchase, sell, trade, barter, or offer for purchase, sale, trade, or barter bald or golden eagles, or their parts, nests, or eggs of these lawfully acquired pre-act birds.

50 C.F.R. 22.2. As is evident, any form of commerce or an offer to engage in commerce is strictly prohibited under the BGEPA. The only allowance under the regulations for eagle parts acquired before 1940 relate to the possession and transportation within the United States of these pre-Act birds. 50 C.F.R. §22.2 (a)(1). However, a permit is required to transport pre-Act birds outside the United States. 50 C.F.R. § 22.2(a)(2).  Native Americans who acquire eagle parts or feathers by gift or inheritance must still receive a permit from the Department of the Interior to possess them for use in Indian religious ceremonies. 50 C.F.R. s 22.22(a)(1) (1992).

Courts have consistently defeated challenges to the Act where defendants were shown to have engaged in commerce of eagle parts. Congress explicitly enacted the BGEPA to serve as an absolute bar on commercial transactions involving eagles or their parts. The Supreme Court further solidified the issue by holding that the Act forbids the purchase and sale of all eagle parts, even those acquired before 1940. Thus, the main issue before the courts typically involves a claim of an unconstitutional taking of property by the government.

A. Pre-existing Eagle Artifacts

The Supreme Court resolved the issue of commercial transaction in eagle parts in Andrus v. Allard, 444 U.S. 51 (1979). In Allard, the United States Supreme Court unequivocally held that the act forbids commerce in eagle parts whether those parts were obtained before or after the enactment of the statute. The defendants in Allard sold artifacts that contained prohibited eagle parts. These artifacts existed prior to the establishment of the Eagle Act. The plain language of the statute provides an exception for the "possession and transportation" of eagle products taken prior to the date of the Act. Through this inference, the Court determined that Congress expressly excepted these activities for pre-existing bird parts from the overall prohibitions on taking. When the act was amended in 1962, Congress again excepted these two functions for pre-existing bird products. The Court found that any commerce in eagles was too significant a threat to the survival of the species. While the Act itself provides for the "possession and transportation" of bird parts obtained before the effective date of the Act, the plain language of the statute does not contemplate commerce in those same bird parts. 16 U.S.C. 668(a).  In fact, the court observed the language of the amendments buttressed this argument:

That this precise use of terminology was intentional is clear from the legislative history. An explanatory letter from the Department of Agriculture that was adopted in the Senate Report on the bill defines the reach of the Eagle Protection Act to make it unlawful to "take, possess, sell, purchase, transport, or otherwise deal with the bald eagle . . . with the proviso to the effect that it will not apply to the possession or transportation of any such eagle . . . taken prior to the effective date of the bill." S. Rep. No. 1589, 76th Cong., 3d Sess., 1 (1940). Further, when Congress amended the Eagle Protection Act in 1962 to cover golden eagles, it once again excepted only possession and transportation of pre-existing artifacts from the general ban. 76 Stat. 1246. And it is particularly relevant that Congress has twice reviewed and amended the statute without rejecting the Department's view that it is authorized to bar the sale of pre-existing artifacts.

Allard at --.

Significantly, "in 1962, Congress extended the Eagle Protection Act to cover golden, as well as bald, eagles, 76 Stat. 1246, and in 1972 penalties under the statute were reinforced, 86 Stat. 1064. On each occasion - especially the latter - the purposes and scheme of the bill were considered." Allard, supra, at --. Thus, it was plain to the court based on the statutory language and the legislative history that the prohibition on commerce covered pre-existing artifacts.

B. Commerce in Eagle Parts Negates Free Exercise Challenges

The Ninth Circuit later affirmed the reasoning of Allard under different factual circumstances. In U.S. v. Hugs, 109 F.3d 1375 (9^th Cir. 1997), the defendants invited undercover agents on a big game hunt. During the hunt, defendants successfully shot at several golden and bald eagles. Later, the agents supplied the defendants with eagle parts in exchange for cash and services. On appeal, defendants challenged their convictions under a free exercise argument. Specifically, the defendants contended that their religious freedom was abridged by the Eagle Act due to the difficulty in obtaining necessary eagle parts through the permit process.

The court first noted that defendants could only challenge the facial validity of the act. Since the Hugs did not have a permit to take eagles nor did they apply for one, they were precluded from challenging the administration of the permit process. Further, the court aligned itself with other cases, holding that a claim challenging free exercise of religion may not be asserted where the activity at issue was purely commercial.

This trend to disregard free exercises challenges on appeal where defendants sold eagle parts has continued. In U.S. v. Sandia, 188 F.3d 1215 (10^th Cir. 1999), the defendant was initially charged with selling a golden eagle skin and other migratory bird parts in violation of the Migratory Bird Treaty, the Bald and Golden Eagle Protection Act, and the Lacey Act. While defendant ultimately pled guilty to one violation under the Lacey Act for the sale of a migratory bird, the analysis by the court is still relevant. The district court denied defendant’s argument that he had a right under the Religious Freedom Restoration Act (RFRA) (42 U.S.C. § 2000bb-1) to possess the birds because it ruled that the statute did not apply. On appeal, the Tenth Circuit held that RFRA was not implicated, as the subsequent commercial sale of the eagle skin defeated defendant’s claim of free exercise. Defendant never alleged that the sale to the undercover agents was in any way a religious act. The court found that the sale negated a claim of possession for religious purposes and instead brought the possession under the ambit of federal law. Indeed, the court found offensive the notion that one could, "under the guise of religion, stockpile protected species for commercial sale." Id. at ---.  In the still murky jurisdprudence surrounding religious challenges to the BGEPA, it appears that commercial sale uniformly dissolves challenges on appeal.  This, in effect, upholds the underlying policy of the BGEPA:  deter a market for eagles and target those who engage in this conduct.

C. Abandoned Property

Even abandoned property is subject to the strict prohibition on the sale of eagle parts. Abandoned or seized wildlife property (e.g., animals or animal parts) are typically donated or sold by the federal government to noncommercial entities that will display or exhibit the wildlife, if no return to the wild if possible. However, the regulations specifically forbid the sale of abandoned eagle artifacts because it would contravene the policy behind the BGEPA.

Sale of migratory birds and bald or golden eagles would be prohibited because the Service believes that sale is inappropriate when possession and sale of these birds is highly regulated or prohibited by the Migratory Bird Treaty or Eagle Protection Acts in order to conserve them.

46 FR 46605, (September 21, 1981).  (See also, 50 C.F.R. 12.37(c), which incorporated this policy into the regulations).  Moreover, even donations or loans to Native Americans of abandoned wildlife property must be completed pursuant to the permits requirements of 50 C.F.R. 22.22.  50 C.F.R. 12.36.  The recent proposed NAFERA (Native American Free Exercise of Religion Act) (See, Section 3D, supra) legislation would create an exception to abandoned eagle parts found on Indian reservations. How this proposed change would be reflected in the regulations is undetermined.

D. Have Eagle, Will Travel?

The BGEPA prohibits any type of commerce in eagles or their parts. Moreover, the language of the Act prevents the import or export of eagles or their parts for any purpose. In 1999, the federal government sought to eliminate this transportation burden on both the scientific and Indian community by adopting an interim order allowing the transportation of eagles across the U.S. border for these limited purposes.

Since the adoption of the Eagle Act, its amendments, and its regulations, we have received requests to allow the transportation of dead bald and golden eagles, their parts, nests, or dead eggs into or out of the United States for scientific or exhibition purposes or for religious use by American Indian tribes. There were, however, no provisions within our regulations to allow such activity and the scientific and educational community and the Indian tribes effectively were prevented from crossing international borders with such items. We recognize that this situation creates some problems both in the sharing of science and in the exercise of religious freedoms. We intend to allow American Indians meeting the certification requirements in § 22.22 and public scientific or educational institutions to transport into or out of the United States on a temporary basis dead bald and golden eagles, their parts, nests, or dead eggs.

(See, 64 FR 50467 (September 16, 1999). As noted above, special permits must be obtained for any transportation of eagles outside the U.S.  50 C.F.R. § 22.22. The Act does except the possession and transportation within the United States of those eagles or eagle parts lawfully obtained prior to 1940, the original date of the statute’s enactment. 16 U.S.C. 668(a).

The above statement, while giving more flexibility to those Native Americans traveling into or out of the U.S. with eagle parts, contravenes the plain language of the statute. In essence, it appears that the Regulations attempt to amend the statute, a legal impossibility. While the Regulations reflect a necessary action to facilitate the use of eagle parts for religious ceremonies and scientific research, the legal validity in light of the statute is questionable and possibly ripe for legal challenge.

E. Prohibition on Commerce Does Not Constitute a Taking

In 2002, the Eighth Circuit aligned itself with Allard in holding that conviction under BGEPA does not constitute an unconstitutional taking. In U.S. v. Kornwolf, 276 F.3d 1014 (8^th Cir. 2002), defendant Kornwolf challenged his conviction under the Eagle Act as an unconstitutional taking of property by the government. At issue was the seizure of several golden eagle items confiscated in connection with the violation. The Eighth Circuit found this case factually analogous to Allard. The only distinction was the fact defendant himself had obtained the eagle artifacts prior to the date of the amendment of the statute to include golden eagles. However, the court noted the language from Allard that strictly condemned the commercial sale of eagle items, regardless of the date they were acquired. Recent holdings in takings cases that provided greater solicitude to property owners displaced by government action were equally unpersuasive. The court found Allard directly controlling on the issue of the sale; recent takings cases did not affect the court’s determination. Significantly, defendant was compensated for the sale of the artifacts in the sum of $12,000, an amount that the trial court refused to disgorge. Thus, defendant’s argument that the seizure represented a taking was less persuasive as he received commercial compensation.

This limitation on commerce in eagle artifacts was upheld in a bankruptcy context. The Arizona Bankruptcy Court held that since the BGEPA prohibited the sale of a Sioux Indian ghost dance shield which had eagle feathers attached to it, the bankrupt, to whom the artifact was entrusted for possible sale, nor subsequent purchasers had a property interest in it. Thus, the artifact belonged to its original owner.  In re Pajarito American Indian Art, Inc., 7 B.R. 343 Bkrtcy.Ariz., 1980.

The Pajarito holding was distinguished in a tax proceeding. In Sammons v. C.I.R., 838 F.2d 330 (9^th Cir. 1988), the court upheld a charitable deduction stemming from the donation of artifacts containing eagle feathers. The court noted that while the initial purchase by the taxpayers may have violated federal law, their ownership of the artifacts created sufficient title to pass to the museum upon donation. Had the government been inclined, it could have instituted a forfeiture proceeding under the BGEPA. The failure of the government to act in accordance with the statutory requirements did not void ownership by the taxpayers, nor did it contravene public policy. The court found the government’s argument that allowance of a deduction might frustrate the policy of preserving eagles or even encourage the killing or acquisition of eagle artifacts in order to receive a tax deduction specious.

It may be true that persons who presently own artifacts of this nature might be encouraged to donate the items to museums so that they could claim a deduction on their tax returns, but we do not view this as a threat to the national policy of protecting endangered bird species. Nor do we find anything in the record to suggest that by permitting a deduction for the contribution of the Eagle Artifacts, unscrupulous sellers of Indian art are likely to hunt, capture and kill protected eagle species in an effort to manufacture 'ancient' artifacts that can be sold to collectors, unsuspecting or not, for spurious donations to charitable organizations.

The court's pronouncement reflects a pragmatic interpretation of the facts at hand.  It is arguable that, under these circumstances, even allowing a tax benefit to individuals who possessed the eagle parts illegally does fly in the face of the congressional intent of the act.  As noted by the court, however, the onus falls not on a tax court, but upon those responsible for enforcing the provisions of the act.

F. The BGEPA and the Commerce Clause

The Commerce Clause of the United States Constitution, Art. 1, § 8, cl. 3, allows Congress to enact laws affecting interstate commerce. Put simply, this provision allows Congress to exclusively regulate any activity that touches commerce between the states. The Eagle Act has been challenged as an overly broad exercise of commerce power by Congress. In doing so, appellants have argued that this conservation measure has nothing to do with commerce or does not substantially affect commerce.

The Supreme Court first alluded to this commerce power in Allard. While the issue raised specifically dealt with the sale of pre-existing artifacts, the Court used language that undeniably described the Act as a restriction in commerce.

It was reasonable for Congress to conclude that the possibility of commercial gain presents a special threat to the preservation of the eagles because that prospect creates a powerful incentive both to evade statutory prohibitions against taking birds and to take a large volume of birds.

Allard, at --.

In 1995, the Supreme Court further delineated the parameters of the Commerce Clause. See, United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Specifically, the Court established that Congress’s exercise of commerce power be related to an activity that substantially affects interstate commerce. This holding spawned challenges to conservation statutes, alleging that they do not have any substantial affect on interstate commerce. In United States v. Bramble, 103 F.3d 1475 (9^th Cir. 1996), the Ninth Circuit rebuffed such a challenged to the BGEPA. Defendant in Bramble was charged with attempting to sell eagle feathers among with other criminal violations. On appeal, defendant contended that, under the Lopez holding, Congress overreached its commerce regulating authority in enacting the BGEPA because the Act does not extend to any commercial activity or economic enterprise.

The court disagreed, first noting that conservation statutes were routinely upheld as a valid commerce power prior to Lopez. Moreover, even after Lopez, the Eagle Act still constitutes a valid exercise of the Commerce Clause. The court noted that not only does the Act explicitly regulate both the possession and sale of eagles and eagle parts, but that this regulation preserves the species for other commercial ventures. Eagles play a role in both recreational and scientific exploration, the court observed. These activities in and of themselves comprise economic ventures. Further, in a purely pragmatic and human-centered perspectives, the preservation of species maintains a genetic pool that may be of some use to humans someday.

[T]he protection of an endangered species of wildlife with some commercial value may permit the regeneration of that species to a level where controlled exploitation of that species can be resumed. In such a case businessmen may profit from the trading and marketing of that species for an indefinite number of years, where otherwise it would have been completely eliminated from commercial channels in a very brief span of time. Potentially more important, however, is the fact that with each species we eliminate, we reduce the [genetic] pool ... available for use by man in future years . . . From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask.

Id.at --.  Thus, Congress’ enactment of the BGEPA to prevent the extinction of eagles was deemed rational or, a lawful exercise of police power by Congress, by the court under the Lopez test.

4.  The BGEPA and the Use of Eagles by Native Americans

Many Native American religions venerate the eagle as a spiritual messenger. White, supra. In fact, the eagle as a religious symbol has been said to be akin to the crucifix in Christianity. Abeyta at --. Prior to the colonization by Europeans, Native Americans were free to hunt as needed for both subsistence and ceremonial needs. This would, of course, include hunting and otherwise possessing the once prolific eagle as a source for religious artifacts.

Once Native Americans sovereignty was restricted to reservations, and treaties delineated the rights afforded to those tribes, hunting still continued by virtue of treaty. Since the adoption of the Eagle Act, Native Americans have asserted a unique status to kill or possess eagles based on several theories: (1) the right to hunt on-reservation through treaties; (2) the First Amendment derived right of free exercise of religion; and, most recently, (3) invocation of the Indian Trust Doctrine.

A. Abrogation of Treaty-based Hunting Rights

Prior to the enactment of the Eagle Act, Native Americans possessed and sometimes hunted eagles in an unrestricted manner. When the decline of the eagle was brought to the attention of Congress in the 1930’s, no mention was made of the use of eagles by Native American tribes. Moreover, the right to hunt or fish upon reservation land was almost always afforded by treaty. The broad term "whoever" seems to imply an intent by Congress to extend the Act to all persons within the U.S. borders. However, the BGEPA does not explicitly state whether Indian treaty hunting rights were abrogated by its enactment. In fact, the only mention of Indians within the statute pertains to the exception for religious ceremonies. As a consequence, courts have grappled with the issue of whether the Eagle Act implicitly modified those hunting rights afforded to Indians by virtue of treaty. The crux of the issue lies with the semi-sovereign status of Native Americans tribes residing on reservations. In creating these Indian nations, the United States afforded certain traditional land rights to Indians. Because the BGEPA contains no language or provision regarding abrogation, one author has suggested that courts decided the issue of "whether treaty hunting rights are abrogated by implication." Boradiansky, supra, at --. Subsequent amendments to the original Act did not define the extent of treaty abrogation; hence, an examination of relevant case law is crucial.

The Eighth Circuit was the first to deal with the issue of treaty abrogation in an explicit manner. In United States v. White, 508 F.2d 453 (8^th Cir. 1974), the court did not find that treaty-derived hunting rights on Indian reservations were abrogated by the Eagle Act. Specifically, the court held that congressional silence is insufficient to impute an intent to abrogate these historically significant rights. The court opined that the only reference in the act was the 1962 amendment pertaining to permission to use eagles for Indian religious purposes. 16 U.S.C. § 668a. It was not persuaded by the government’s argument that the specific inclusion of an exception for religious purposes of Indians evinced a congressional intent to abrogate traditional hunting rights.

Whoever, within the United States or any place subject to the jurisdiction thereof . . .

In fact, as Judge Lay stated, "[v]iewing the avowed purpose of the legislation, they [the words] leave no room for construction or interpretation."

The dissent in White was soon to become the trend in reviewing treaty-based challenges to the BGEPA. While the right to hunt on tribal lands was in dispute, courts uniformly rejected treaty-based claims where the violation concerned the sale of eagle parts. Noting the historic context of the treaty in question, the Ninth Circuit observed that the sale of eagle parts by Indians was denounced by custom and religion. Since Indian treaties are reviewed under the terms that the Indians would have understood them at the time they were drafted, the court held that it would be contrary to hold that treaties endowed a right to sell eagles. United States v. Top Sky, 547 F.2d 486 (9^th Cir. 1976).

It was not until 1980 that Judge Lay’s dissent was formally adopted by the Ninth Circuit in United States v. Fryberg, 622 F.2d 1010 (9^th Cir. 1980). Like the defendant in White, Fryberg, an enrolled member of the Tulalip Tribe, challenged his conviction for shooting an immature bald eagle on the Tulalip Reservation as a violation of established treaty hunting rights. While the court agreed with the White majority that there is no express intent on the face of the statute abrogating treaty rights, the amendment related to Indian religious purposes is but one factor to consider. The surrounding circumstances of the Act and the legislative history demonstrate a congressional intent to abrogate treaty rights. The court observed that the modification of Indian hunting rights attributed to the act is not significant, as there is no historical evidence that Indians hunted eagles for subsistence or commercial purposes. Id. Since the only reason Indians hunted eagles was for religious ceremonies, Congress’ amendment of the act to allow for taking of eagles for Indian religious purposes inherently modified treaty rights.

In addition, the court noted that conservation statutes routinely modify treaty rights in an effort to achieve their broad purposes. Congress enacted the BGEPA to assure the survival of a species in peril. Congress’ enhancement of the penalties under the Act and the inclusion of the related golden eagle support the conclusion that it intended to modify all treaty-based hunting rights as they pertain to eagles.

One criticism levied against the Fryberg opinion arose from the generalized application of treaty-based rights. In crafting its decision, the court did not specifically limit its holding to endangered resources, thus leaving open the possibility that this test could abrogate Indian rights when non-endangered species were issue. Karl Forsgaard, Statutory Construction – Wildlife Protection Versus Indian Treaty Hunting Rights – United States v. Fryberg, 622 F.2d 1010 (9^th Cir.); cert. Denied 449 U.S. 1004 (1980), 57 Wash. L. Rev. 225 (1981). Forsgaard advocated the use of a balancing test, whereby the court would give more weight to White’s "face of the act" test or Fryberg’s "surrounding circumstances" test depending on whether the animal in question was endangered or not. Id. This hybrid test relies on the inherent self-interest of Indians to maintain a species central to cultural activities.

Unlike the 'face of the act' test, it does not create, in the context of endangered resources, the potential for the ultimate loss of the resource through immoderate taking by Indians under a treaty right. And unlike the 'surrounding circumstances' test, it does not create, in the context of nonendangered resources, the potential for loss of treaty rights to the resource through immoderate application of the test by reviewing courts.

Forsgaard, supra, at--. Interestingly, the eventual Supreme Court resolution of the issue did employ a hybrid test. Despite Forsgaard’s concern, the treaty abrogation issue did not turn on whether the eagle was deemed endangered or not.

District courts were initially divided on treaty abrogation. In a particularly bold opinion, the New Mexico District Court held that the BGEPA did not abrogate the treaty-based rights of a Pueblo Indian tribe to take eagles. United States v Abeyta, 632 F. Supp. 1031, (D. N.M. 1986). The court held that the treaty of Guadalupe Hildago specifically afforded the Pueblo Indians a guarantee that their religious rights would be respected. Agreeing with the White court, this court found that in absence of an explicit statement by Congress abrogating treaty rights, it would not read such an abrogation into the Act. In fact, in the face of silence, the court found that Congress did not intend to infringe upon the religious practices of the pueblo people guaranteed by treaty.

In contrast, the Nevada District Court held treaty rights were abrogated by the BGEPA. In United States v 38 Golden Eagles, 649 F. Supp. 269 (D. Nev. 1986), aff’d, 829 F.2d 41 (9^th Cir. 1987), the defendant sold various eagle parts to undercover Fish and Wildlife Service agents in exchange for money. The court noted that Fryberg previously disposed of the question whether tribal hunting and fishing rights, accorded by treaty, were abrogated by the Eagle Protection Act. Fryberg explicitly held that Congress had the authority to enact conservation laws under its police power and this extended to Indian nations under the sovereignty rights of the United States. The court went on to opine that, even if Fryberg was not controlling in this context, defendant admitted to obtaining eagles and eagle parts from areas outside of the reservation itself.

As one author observed, however, the difference in the outcome of these two cases rests on a factual distinction versus a political divide. The New Mexico District Court did not find a compelling interest that justified abridging religious freedom because the golden eagle was not endangered in that state and permits had allegedly been issue to kill depredating eagles. Britt Banks, Birds of a Feather: Cultural Conflict and the Eagle in American Society, 59 Colo. L. Rev. 639 (1988). In contrast, the Nevada court was not presented with such evidence at trial. Id. In any event, the author duly noted that, "when this issue presents itself before the Supreme Court, the decision will turn on whether the eagle is worthy of protecting. " Id.

The Supreme Court considered the eagle’s fate in 1986, resolving the conflict in the circuits. In United States v. Dion, 476 U.S. 734 (1986), the Court relied on three traditional standards in determining whether Congress demonstrated a "clear and plain intent" to abrogate treaty rights. First, the Court found that Congress’ intent to abrogated treaty rights to hunt bald eagles is "strongly suggested" on the face of the Eagle Act. Moreover, through negative inference the Court held that the subsequent amendment to allow for the taking of eagles by Indians for religious purposes demonstrates an understanding of the hardship this would place on Indians by not exempting them from the statute. Thus, a permitting process to obtain eagle parts was promulgated.

The Court also found the legislative history instructive. The Court noted that in 1940, the ban originally encompassed only the bald eagle. There was no prohibition on the more abundant golden eagle. However, in 1962, after receiving testimony concerning the veneration of eagles by various Indian tribes, Congress included golden eagles in the ban to prevent the extinction of that species as well. Congress then crafted an exception allowing Indians to obtain permits to take eagles for religious purposes. This legislative history, the Court opined, evinced recognition by Congress that it was abrogating the rights of Indians to take eagles. Indeed, "Congress expressly chose to set in a place a regime in which the Secretary of the Interior had control over Indian hunting, rather than one in which Indian on-reservation hunting was unrestricted." Id. at 744. The Court was unconvinced by respondent’s and the Eighth Circuit’s contention that Congress, while including Indians within the coverage of the statute, did not intend the act to extend to Indian hunting on reservations. The legislative policy showed a clear intent prohibit all hunting of eagles, including Indian hunting, except where provided by permit.

The Dion decision seemed to resolve much of the conflict concerning treaty abrogation. Subsequent additions in the Federal Register have not expanded on the issue nor do the Regulations shed light. One author suggested that Dion essentially resolved the issue.

If it is valid, the Court has placed a formidable obstacle in the path of efforts to balance and harmonize the interests and aspirations of Indian people with those of the dominant society . . . Traditions relating to the free exercise of religion and to the special relationship that exists between the United States and the Indian tribes, all embodied in American law, dictate that the opinion should not have much of an effect on the right of Indian people to obtain an adequate and constant supply of eagle feathers for use in their religious ceremonies.

Banks, supra, at --.Significantly, the dormancy of the treaty issue only fueled the next and perhaps greatest constitutional challenge to the Eagle Act:  free exercise of religion.

B. Religious Challenges to the BGEPA by Native Americans

In 1962, the Eagle Act was amended to allow eagles to be taken for the religious practices of Native Americans. Congressional record indicates an understanding of the veneration of the eagle in Native American religion and culture. As noted in a letter by Assistant Secretary of the Interior, Frank Briggs, before the Subcommittee hearing in 1962, "[I]t is evident that the Indians are deeply interested in the preservation of both the golden eagle and the bald eagle. If enacted, the bill should therefore permit the Secretary of the Interior, by regulation, to allow the use of eagles for religious purposes by Indian tribes." House Hearings, 2-3; See, White, supra, at --. As a consequence, the BGEPA provides an exception for the religious practices of Native Americans.

Whenever, after investigation, the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof for the . . . religious purposes of Indian tribes . . .