Balancing Opposing Cultural and Religious Beliefs on a Shared Reservation: Agency consideration of “Native American culture” not enough to demonstrate narrowly tailored compelling interest

May 28, 2015
By Lynn H. Slade and Sarah M. Stevenson

In Northern Arapaho Tribe v. Ashe,1 the United States District Court for the District of Wyoming contrasted two tribes’ eagle interests, the First Amendment, the Bald and Golden Eagle Protection Act, and the Supreme Court’s Hobby Lobby decision to conclude that the Fish and Wildlife’s decision to issue a bald eagle take permit, limited to the areas outside the Reservation, violated one tribe’s First Amendment right to the free exercise of religion.

Background: The Wind River Reservation (“Reservation”) has been shared by the Northern Arapaho Tribe (“NAT”) and the Eastern Shoshone Tribe (“EST”) since its creation in 1868. The two tribes, however, differ on the relationship between eagles and traditional culture and religion, as demonstrated in a recent case with roots in a decade-old killing of a bald eagle by a NAT member for use in a tribal ceremony.

After the Tenth Circuit ruled that the NAT and its members could not kill eagles for religious purposes without a permit under the Bald and Golden Eagle Protection Act (“BGEPA”),2 the NAT applied for an eagle take permit under the BGEPA to allow the taking of two eagles within “Freemont County, Wyoming, Wind River Reservation.” The EST submitted to the Director of Fish and Wildlife Services (“FWS”) (“Director”) a letter opposing the application on grounds that the EST considered eagles to be sacred, who then engaged in consultations with both tribes. When there was no action on the NAT’s application, the NAT filed suit for FWS’s failure to rule on its application.

The Challenged Permit: FWS issued the challenged permit on March 9, 2012, and it allowed the NAT to take up to two bald eagles but limited the geographic area in which the permit applied to outside the Reservation. In its Findings for Northern Arapahoe Tribe’s Permit to Take Bald Eagles for Religious Purposes (“Permit Findings”), FWS concluded the proposed take was compatible with eagle preservation goals and “within the annual take threshold established by the Service for the Northern Rocky Mountains region”; and that “the proposed take was for a bona fide religious purpose.” Limiting the take to areas outside the Reservation, however, was considered necessary to protect the EST’s religion and culture.3 The NAT amended its complaint to challenge the permit issued.

Challenge to the FWS’ Consideration of EST’s Objections: The NAT complaint raised two issues that may recur in controversies concerning claims of religious significance of eagles to tribes. First, the complaint argued that the FWS’ regulations4 only allow the agency to consider the religious ceremonies and beliefs of the tribe that seeks to use eagles or eagle parts for cultural or religious purposes. The court rejected this argument, deferring to the FWS’ interpretation of its regulation to treat consideration of other tribes’ interests as allowable as “other criteria” authorized for consideration by the regulations. The decision thus allows FWS to consider multiple tribes’ positions and beliefs in determining whether to issue a take permit.

The NAT also argued that the FWS’ decision violated the NAT’s rights under the free exercise clause of the First Amendment. The district court agreed and ruled that the permit’s limitations, allowing take only outside the Reservation, were facially discriminatory because they were expressly based on the EST’s view that eagles are sacred and, therefore, “burdened the [NAT’s] culture and religion based on the cultural or religious objection of the [EST].”5 As such, the court held that FWS was required to justify the permit limitation by a compelling interest and by demonstrating that the permit limitation was narrowly tailored to advance that interest,6 citing the Supreme Court’s controversial decision in Burwell v. Hobby Lobby Stores, Inc., in which the Court held an employer’s religious convictions can support an otherwise illegal discrimination.

The court held that FWS’ decision to allow the NAT to take up to two bald eagles per year, but to limit the right to areas outside the Reservation, was not justified by a compelling governmental interest, because the EST’s identified interest, that “eagles are sacred,” would be affected whether the take was within or outside the Reservation. The district court concluded that FWS could not justify the restriction based solely on a broadly stated interest in protecting Native American culture.7 Because FWS based its limitation on the EST’s objection that eagles are sacred, restricting the take of eagles to outside the Reservation was not narrowly tailored enough to support the limitation on place of take, particularly when the eagles are then taken back on the Reservation for use.

Take-Away: This case recognizes that federal agencies may need to consult with multiple tribes when considering a specific project or permit application, but this does not excuse an agency need to ensure any decision is narrowly tailored to advance a compelling interest when a tribe asserts an interest that may be infringed on by agency action. Because FWS is a party to the case, a notice of appeal of the district court’s ruling is not due until 60 days after March 12, 2015. Whether this ruling is affirmed or reversed by the Tenth Circuit Court of Appeals, it underscores the importance of agency adherence to the proper level of scrutiny.

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  1. 1.  2015 WL 1137487, No. 2:11-CV-00347-ABJ (D. Wyo. Mar. 12, 2015).
  2. 2.  16 U.S.C. § 668–668(d).
  3. 3.  2015 WL 1137487, at *4.
  4. 4. 50 C.F.R. § 22.22 requires FWS, when evaluating an eagle take permit application, to consider the effect the permit would have on bald or golden eagles, and “{w}hether the applicant is an Indian who is authorized to participate in bona fide tribal religious ceremonies.”
  5. 5. 2015 WL 1137487 at *16.
  6. 6.  Id. at *17-18 (citing Burwell v. Hobby Lobby Stores, Inc., ___U.S. ___, 134 S.Ct. 2751 (2014), and related precedent including Holt v. Hobbs, ___U.S. ___, 135 S.Ct. 853 (2015), and Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006)).
  7. 7.  2015 WL 1137487 at *25.

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