with whom Judge BRISCOE joins, concurring in part and concurring in the judgment.
By looking narrowly at a particular provision of the regulatory scheme at issue in this case,1 i.e., the permitting process, the majority concludes in Saenz that the “government has failed to demonstrate how the permitting process advances its compelling interests.” See Majority Op. at 1134. I disagree. The regulatory scheme, when properly viewed in its entirety, clearly advances both the government’s compelling interest in protecting eagles and its compelling interest in preserving Native American culture. Nevertheless, because the government failed to carry its burden of demonstrating that the regulatory scheme is the least restrictive means of setting its two compelling yet competing interests in equipoise, I would also affirm the district court in Saenz. This difference in approach is not pedantic. It is, instead, likely to have real significance in light of this court’s remand- of Hardman and Wilgus to the district court for further proceedings. Unfortunately, I fear the majority opinion in Saenz will misdirect the -district court upon remand in Hard-man and Wilgus.
The regulatory scheme represents an attempt by Congress to harmonize, to the extent practicable, two competing interests: protection of eagle populations and preservation of Native American cultural practices. See United States v. Dion, 476 U.S. 734, 743-44, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986) (“Congress ... considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statute, and provided a specific, narrow exception....”). The majority quite correctly recognizes that each of these interests is compelling in its own right. See Majority Op. at 1128-29. Under RFRA, the question then becomes whether the regulatory scheme furthers these two compelling yet competing interests and whether it is the “least restrictive means” of doing so. See’ 42 U.S.C. § 2000bb-1(b).
The majority concludes in Saenz that it need not decide whether the regulatory scheme is' the least restrictive means of advancing the government’s compelling yet competing interests because “[t]he government has failed to demonstrate how the permitting process advances its compelling interests.” Majority Op. at 1134; see also 42 U.S.C. § 2000bb-1(b) (“Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”).2 As set forth more fully below, I disagree both *1137with the analytical approach utilized by the majority to reach this conclusion and with the conclusion itself.
The majority begins its analysis by “consider[ing] how excluding sincere practitioners of Native American religions who are not members of federally recognized tribes from applying for permits advances the government’s interest in preserving eagle populations.” Majority Op. at 1132. The majority ultimately concludes that the government has failed to adduce any record evidence that the permitting process advances the government’s interest in protecting eagles. See id. at 1132-33. This conclusion is not at all surprising, nor is it even remotely relevant. By the end of its opinion, the majority seems to have forgotten that the permitting process set out at 50 C.F.R. § 22.22 is part of a broader regulatory scheme — BGEPA, MBTA, and their shared regulations- — designed to further two compelling yet competing interests. See Majority Op. at 1121-23 (setting out as background entire regulatory scheme); United States v. Dion, 476 U.S. 734, 743-44, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986) (“Congress ... considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statute, and provided a specific, narrow exception.... ”). In furtherance of one of those compelling interests, the interest in protecting eagles, the regulatory scheme prohibits the possession of eagles and eagle parts. See 16 U.S.C. § 703; id. § 668. In furtherance of the competing interest, the interest in preserving Native American culture, the regulatory scheme empowers the Secretary of the Interior to allow possession of eagles and eagle parts for the “religious purposes of Indian tribes.” Id. § 668a; see also id. § 704. Accordingly, the relevant question is whether the entire regulatory scheme as a whole, not just one selected portion of it, advances the government’s compelling interest in the preservation of eagles. There can be absolutely no question that the general prohibition on the taking or possession of eagles or eagle parts advances the government’s interest in the preservation of eagles.
The majority’s determination that the regulatory scheme does not advance the government’s interest in protecting Native American culture is equally flawed. The majority “consider[s] to what degree excluding non-tribal members from the permitting scheme advances the government’s interest in preserving Native American cultures and fulfilling trust obligations” and ultimately concludes that “[t]he government has failed to demonstrate how the *1138permitting process advances-its compelling interests.” Majority Op. at 1133, 1134. As set forth below, the majority’s analysis of this claim improperly mixes two separate questions. Furthermore, the majority is simply incorrect in concluding that the regulatory scheme does not advance the government’s interest in protecting Native American culture.
First, although the majority purports to analyze whether the permitting process furthers the government’s interests in protecting Native American culture, the bulk of the majority’s discussion in Section II. F.2.b. is actually directed to the analytically distinct question of whether the permitting process is the least restrictive means of advancing that interest. For instance, the majority concludes that the government has failed to carry its burden of demonstrating that “broader eligibility would result in an increased wait substantial enough to endanger Native American cultures.” Majority Op. at 1133. Although I agree with this statement and would thus affirm the district court in Saenz on the ground that the government failed to carry its burden of proving that the regulatory scheme is the least restrictive means of setting its compelling yet competing interests in equipoise, see infra, I fail to see how this evidentiary deficiency relates to the question whether the regulatory scheme advances the government’s interest in protecting Native American culture. At this stage of the analysis, the question is not whether a less restrictive regulatory scheme would advance the government’s interest; the question is whether the current regulatory scheme does advance those interests.
Second, in contrast to the conclusion reached by the majority, the regulatory exception as implemented through the permitting process most surely advances the government’s interest in protecting Native American culture. Without the exception, Native Americans would fall under the general prohibition against the possession of eagles and eagle parts. Without access to eagles and eagle parts, Native Americans could not engage in them traditional way of life. Accordingly, the permitting process, which allows Native Americans to access sacred items that they would otherwise be banned from possessing, advances the government’s interest in protecting Native American culture.3
*1139Because it is absolutely clear the regulatory scheme advances the government’s dueling interests in preserving eagles and protecting Native American culture, it is necessary to proceed to RFRA’s least-restrictive-means requirement. As noted above, the rather unique regulatory scheme at issue in this case is an effort to accommodate two compelling yet competing interests. It would therefore seem that the relevant question is whether the scheme is the least restrictive means to further the government’s interest in setting those interests in equipoise. Indeed, the First Circuit has described this regulatory scheme, albeit in the context of an Establishment Clause challenge, as follows:
The exemption, therefore, does not merely serve the government’s interests in (1) protecting Native American religion and culture and (2) protecting a dwindling and precious eagle population; it sets those interests in equipoise. Any diminution of the exemption would adversely affect the former interest, but any extension of it would adversely affect the latter. In equal protection terms, the “fit” between classification and legislative purpose is snug;, indeed, given the nature of the governmental interests at stake and the close fit between the exemption and those interests, we would be hard put to say that the exemption could not survive even “strict scrutiny.”
Rupert v. Dir., United States Fish & Wildlife Serv., 957 F.2d 32, 35-36 (1st Cir.1992).
For this exact reason, any analysis of whether the regulatory scheme is the least restrictive means of advancing either compelling interest, when considered in isolation, necessarily leads to the conclusion that the regulatory scheme conflicts with RFRA. If, for instance, the regulatory scheme is measured solely against the government’s interest in protecting eagles, it is clear that the scheme is not the least restrictive means of advancing that interest. In that scenario, distributing the available parts and feathers from dead eagles to all individuals with a sincere religious need for the items is a less restrictive, but equally effective, means of protecting eagle populations. If, on the other hand, the regulatory scheme is measured solely against the government’s interest in protecting Native American culture, that interest can be furthered in a less restrictive way by increasing the supply of eagle parts through the hunting of eagles. This analytical approach, although certainly easy to conceptualize and apply, fails to truly capture the essence of the government’s interest in setting dueling compelling interests in equipoise.
*1140Accordingly, it is not relevant to this court’s resolution of Saenz that the government failed to show “that statutory protections for eagles (apart from the exception for religious purposes) were motivated by trust obligations.” Majority Op. at 1134. It is clear that the statutory protections afforded- eagles are not in any way related to the government’s compelling interest in protecting Native American culture. Instead, the statutory prohibition is designed to protect the viability .of the species and the exception for Native American religious practices is an attempt to reconcile the interest in eagle conservation with the interest in preserving Native American culture. Unfortunately, the statements from the majority opinion cited above, although made in the context of its apparent resolution of this case at the antecedent step of whether the regulatory scheme advances the government’s interests at all, diminish the magnitude of the government’s interests and, more importantly, misdirect the district court as to its task on remand in Hardman and Wilgus.
The majority correctly opines that each of the interests advanced by the government is compelling and that the record is simply too sparse to engage in any meaningful analysis of Hardman’s and Wilgus’ RFRA claims. Although I agree that the district court appropriately sustained Saenz’s RFRA claim, I reach that conclusion on a basis significantly different than that of the majority. Although I would conclude the record clearly demonstrates that the regulatory scheme advances each of the government’s compelling yet competing interests, the government has failed to demonstrate that the scheme is the least restrictive means of placing its dueling interests in equipoise. In particular', the record on appeal is so sparse that it is impossible to determine whether expanding eligibility for eagles and eagle parts would compromise the government’s interest in protecting Native American culture. Unless the government can present evidence demonstrating that the answer to this question is affirmative, the regulatory scheme is not the least restrictive means of setting the government’s interests in equipoise. Accordingly, the extraordinary task for the district court on remand in Hard-man and Wilgus is to determine, on a proper evidentiary record, whether there is any possible scheme which places the government’s interests in equipoise in a less restrictive manner, i.e., places the interests in equipoise while, at the same time, providing eagle parts to sincere believers who are not members of a federally recognized tribe.
. The relevant regulatory scheme is comprised of the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act, and their shared implementing regulations.
. In light of the majority’s conclusion in Saenz that the government failed to demonstrate that the regulatory scheme advances its compelling interests and the conclusion in Hardman and Wilgus that the record is insuf*1137ficient to undertake any RFRA analysis at all, the entire extensive discussion of RFRA's least-restrictive-means requirement set out at Section II.E.2. of the majority opinion appears to be dicta. Admittedly, however, the exact basis for affirming the district court in Saenz is not clear from the majority opinion. Compare Majority Op. at 1132 ("Here, as we explain below, the government has failed to demonstrate how the current regulations serve each of its asserted interests — a necessary step in the process of showing that the regulations are the least restrictive means of serving the government’s interests.”), and id. at 1134 ("The government has failed to demonstrate how the permitting process advances its compelling interests.”), with id. at 1131 ("The government did build a record in the district court with respect to Mr. Saenz. Therefore, we examine the record to determine if the government has carried its burden of proving the least restrictive means of carrying out its interests.”), id. at 1131 ("We move on, then, to the question of whether the government has met its burden of proving that the permitting scheme is the least restrictive means of advancing its compelling interests.”), and id. at 1132 ("We therefore find that, on the record presented in Saenz, the government has failed to show that limiting permits for eagle feathers only to members of federally recognized tribes is the least restrictive means of advancing the government’s interests in preserving eagle populations and protecting Native American cultures.”).
. It is unclear from the majority opinion exactly what are the contours of the, government's compelling interest in protecting Native American culture. The majority intimates that the interest can be limited to the maintenance of the viability of Native American cultural practices as a historical legacy within the contours of our modern culture. See Majority Op. at 1133 ("Moreover, the government offers no evidence on the threshold question of whether allowing sincere practitioners who are not members of federally recognized tribes to possess eagle feathers, in addition to those who are members, truly threatens 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."). If that were truly the nature of the government’s compelling interest, however, I cannot imagine what evidence the government could produce on remand in Hardman and Wilgus to demonstrate that the current regulatory scheme is the least restrictive means of balancing its compelling yet competing interests. Under this view, the government's interest in protecting Native American culture would be furthered to the exact same extent if the available supply of eagle parts were distributed equally to all adherents of relevant Native American religions, without regard to whether the adherents were, in fact, Native Americans.
I see the contours of the government’s compelling interest a little differently: guaranteeing members of sovereign and semi-autonomous Indian nations the ability to carry on their traditional way of life. Accordingly, the government's task on remand is to adduce evidence, if possible, demonstrating that any *1139further delay in the provision of eagle parts and feathers occasioned through expanding the pool of eligibility would hinder the ability of Native Americans to engage in their traditional way of life.
Despite the language from the majority opinion quoted above, the majority disclaims expressing any opinion "on whether distributing eagle feathers to sincere adherents of Native American faiths irrespective of whether they were members of federally recognized tribes or not, or of Native American lineage or not, would foster or inhibit” the government’s compelling interest. Id. at 1133 n. 23. It also disclaims any suggestion that it takes "too cramped a view” of the government’s compelling interest. Id. If, however, the government's compelling interest lies in guaranteeing that members of sovereign and semi-autonomous Indian nations have the ability to carry on their traditional ways of life, I fail to see how distributing eagle feathers outside of that class could ever "foster” the government's interest. This is an entirely different question, however, from whether the government could further its competing interests in a less restrictive manner. Unfortunately, footnote 23 of the majority opinion fails to clarify the nature of the government’s compelling interest.