[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
_________________________________________
AUGUST 21, 2000
THOMAS K. KAHN
CLERK
No. 99-13200
_________________________________________
D.C. Docket No. 95-08049-CV-DTKH
HARVEY (FIRE BIRD) GIBSON,
Plaintiff-Appellant,
versus
BRUCE BABBITT, as Secretary of the United States Department of Interior,
B.D. OTT, Area Director, as Acting Area Director of the Eastern Area Office
of the Bureau of Indian Affairs,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
___________________________________________
(August 21, 2000)
Before ANDERSON, Chief Judge, DUBINA and SMITH*, Circuit Judges.
PER CURIAM:
*
Honorable Edward S. Smith, U.S. Circuit Judge for the Federal Circuit, sitting by
designation.
Harvey (Fire Bird) Gibson applied to the United States Fish and Wildlife
Service for five bald or golden eagle feathers to use in religious ceremonies. Gibson's
application was denied because he is not a member of a federally recognized Indian
tribe, and thus did not qualify for the exemption to the Bald and Golden Eagle
Protection Act ("BGEPA"), 16 U.S.C. § 668a (1994), which provides:
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 . . . [the
Secretary of the Interior] may authorize the taking of such eagles
pursuant to regulations which he is hereby authorized to prescribe . . .
Provided further, That bald eagles may not be taken for any purpose
unless, prior to such taking, a permit to do so is procured from the
Secretary of the Interior . . . .
Pursuant to 50 C.F.R. § 22.22, the exemption to the BGEPA is limited to Indians who
are members of federally recognized tribes. See id. § 22.22(a)(5) (requiring that an
applicant for a permit "attach a certification of enrollment in an Indian tribe that is
federally recognized under the Federally Recognized Tribal List Act of 1994, 25
U.S.C. 479a-1").
After the denial of his application, Gibson filed suit in the United States District
Court for the Southern District of Florida, alleging that the United States'
("Government's") refusal to provide him with eagle feathers violates his rights under
the First Amendment to the United States Constitution and the Religious Freedom
Restoration Act, 42 U.S.C. § 2000bb et seq. ("RFRA"). The district court issued a
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final judgment order holding that the requirement of membership in a federally
recognized Indian tribe is a permissible agency policy which does not violate the
RFRA. See Gibson v. Babbitt, 72 F. Supp. 2d 1356 (S.D. Fla. 1999). The district
court did not directly address the issue whether the requirement violated the Free
Exercise Clause of the First Amendment. Gibson now appeals to this court. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
The test under the RFRA is the compelling interest test, which requires that all
laws that substantially burden a person's exercise of religion be (1) in furtherance of
a compelling governmental interest; and (2) the least restrictive means of furthering
that compelling governmental interest. See 42 U.S.C. § 2000bb-1.
The district court found, and the parties do not dispute, that the regulation
restricting the exemption to members of a federally recognized Indian tribe constitutes
a substantial burden on Gibson's free exercise of his religion. See Gibson, 72 F. Supp.
2d at 1360. The trial court then correctly shifted the burden to the Government to
demonstrate that the regulation was in furtherance of a compelling governmental
interest, and that the regulation furthers that compelling interest using the least
restrictive means. See id.
The Government contended that it had three compelling governmental interests
that it sought to achieve by requiring an applicant to be a member of a federally
recognized Indian tribe, consisting of the following: (1) the compelling governmental
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interest that led to the enactment of the BGEPA: the preservation of two endangered
species of eagles; (2) the preservation of Native American religions; and (3) the
obligation of the United States to fulfill pre-existing treaty commitments to federally
recognized Indian tribes. See id. The district court reasoned that in light of the
Constitution's grant of authority in the Indian Commerce Clause, U.S. Const. art. I, §
8, cl. 3, the BGEPA's religious purpose clause preserves and protects Native American
religions, and is a compelling governmental interest. See Gibson, 72 F. Supp. 2d at
1360. In addition, the district court reasoned that "by providing bald and golden eagle
parts to federally recognized Indian tribes, the United States . . . is fulfilling a pre-
existing treaty obligation to the tribes." Id. Thus, the district court found "that the
[Government] has met its burden of establishing compelling governmental interests."
Id. at 1361.
We agree with the district court's finding that the Government has met its
evidentiary burden of proving that it has a compelling governmental interest in
fulfilling its treaty obligations with federally recognized Indian tribes. Because we
have determined that the Government has met its burden of proving at least one
compelling governmental interest, we need not address the issue whether the
preservation of Native American religions is a compelling governmental interest, and
save that discussion for another day. Therefore, the issue on appeal narrows to
whether the regulation limiting applicants for eagle parts to members of federally
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recognized Indian tribes is the least restrictive means of furthering the United States'
treaty obligations with the federally recognized Indian tribes.
The record before us indicates that the demand for eagle parts exceed the
supply, and applicants for permits who are members of federally recognized Indian
tribes experience prolonged delays in receiving eagle parts. Further, the record
indicates, and the district court found, that there is a sizeable pool of individuals who
are similarly situated to Gibson. See Gibson, 72 F. Supp. 2d at 1361. Thus, it is clear
from the record that without the exemption the limited supply of bald and golden
eagle parts will be distributed to a wider population and the delays will increase in
providing eagle parts to members of federally recognized Indian Tribes, thereby
vitiating the governments efforts to fulfill its treaty obligations to federally recognized
Indian tribes. Therefore, we agree with the district court that the Government has met
its evidentiary burden of proving that the requirement restricting the exemption to the
BGEPA to members of a federally recognized Indian tribe is the least restrictive
means of furthering that compelling governmental interest, and we affirm the district
court's decision. By the same test, we hold that the membership requirement does not
violate the Free Exercise Clause of the First Amendment.
AFFIRMED.
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