The federal Indian trust doctrine and the Bald and Golden Eagle Protection Act: could application of the doctrine alter the outcome in U.S. v. Hugs?

I. INTRODUCTION

In 1997, the Ninth Circuit Court of Appeals affirmed the conviction of Crow Indian Tribe members Frank and William Hugs for "taking, attempting to take, and purchasing eagles in violation of the Bald and Golden Eagle Protection Act (BGEPA)."(1) The BGEPA assesses both civil and criminal penalties against any person convicted of taking, possessing, selling, purchasing, or transporting any bald or golden eagle or eagle part without a permit.(2) Although intended to provide for the preservation of the national symbol of the United States, the BGEPA also interferes with the use of eagles and eagle parts in traditional Native American religious ceremonies.(3) Native Americans are permitted to possess and use eagle parts under the Act, but only after the United States Fish and Wildlife Service (FWS) verities the applicant's Indian status and participation in a valid religious ceremony.(4)

Frank and William Hugs maintained that the BGEPA requirements restricted their free exercise of religion.(5) The unfavorable outcome in United States v. Hugs is typical of most Native American constitutional or statutory religious freedom challenges to the BGEPA,(6) and it discourages similar Native American claims in the future. Judging from the repeated failure of claims such as the Hugs', the Supreme Court has apparently foreclosed the opportunity for a successful Native American challenge to the BGEPA under traditional religious freedom arguments.(7) The Court's recent invalidation of The Religious Freedom Restoration Act (RFRA),(8) adoption of a more deferential First Amendment standard to evaluate religiously burdensome statutes,(9) and holding that the BGEPA explicitly abrogates traditional Native American Treaty Rights,(10) demonstrate the futility of the typical Native American claims against the BGEPA. The rejection of Native American constitutional, statutory, and treaty right arguments illustrates the need for an alternative argument against the BGEPA that circumvents the existing negative precedent.(11)

This Chapter asserts that in light of the Supreme Court's invalidation of traditional Native American claims,(12) the government's obligation under the Federal Indian Trust Doctrine(13) presents the best opportunity for a successful challenge to the BGEPA and its permit process.(14) While Hugs underscores the conflict between the BGEPA and Native American religion, the limited claims raised in Hugs do not provide an adequate basis for a comprehensive discussion of the trust obligation's application to a BGEPA challenge. Therefore, this Chapter relies on the specific facts and claims of Hugs in only a small portion of its analysis.

Part II of this Chapter outlines the BGEPA permit process to obtain a FWS Native American religious use permit. Part HI describes the judicial elimination of traditional Native American arguments against the Act and poses a hypothetical challenge to the BGEPA that illustrates the uselessness of these arguments. Part IV details the history and development of the trust doctrine and describes the current status of the doctrine in Native American law. Part V discusses how recent federal emphasis on the trust obligation promotes the doctrine as a viable foundation upon which to challenge the BGEPA. Finally, Part VI describes the basic advantages of the trust doctrine argument and explains how an argument under the trust doctrine could prevail where traditional Native American arguments have failed.

II. THE BALD AND GOLDEN EAGLE PROTECTION ACT PERMIT PROCESS

In Native American religious practice, the eagle feather holds a sacred position, akin to Christianity's use of the cross.(15) Native Americans consider the eagle a messenger that carries the prayers of those on earth to their Creator.(16) Accordingly, the Native American Church incorporates eagles, or eagle parts, into virtually every religious ceremony.(17) Native Americans use eagle parts in religious ceremonies throughout every stage of life--from ceremonies to bestow a name on a newborn to those that mark the death and burial of an ancestor.(18) Ceremonial use of eagle feathers is necessary for Native Americans to maintain a healthy life, and such use also represents the spirituality that provides the cornerstone of Native American culture.(19) Without the ceremonial use of eagle feathers, Native American society, as it is traditionally recognized, would cease to exist.(20) Thus, any burden on the ability to procure eagle parts for use in religious ceremonies substantially burdens Native American religious practice.(21) The permit process created for the distribution of eagle parts under the BGEPA is such a burden.(22)

Adopted by the Continental Congress as the symbol of a newly formed America in 1782, the bald eagle represents honor and dignity in American society.(23) In 1940, Congress passed the Eagle Protection Act in an effort to protect bald eagles from imminent extinction.(24) In 1962, Congress, assuming that the resemblance between bald and golden eaglets would impede the recovery of the bald eagle, extended this protection to golden eagles.(25) Additionally, the 1962 amendments permitted Native Americans to use eagle parts in religious ceremonies if the Secretary of the Interior (the Secretary) deemed the activity compatible with the Act's goals.(26) The discretion that the 1962 Amendments extended to the Secretary prompted the modern Bald and Golden Eagle Protection Act permit system.(27) This permit system allows Native Americans to apply for a permit in order to obtain eagle parts for religious ceremonial use.(28) The inefficiency of this permit system is the primary burden that the BGEPA places on Native American religious practice.(29)

Under the BGEPA, any person found to "take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import ... any bald eagle ... or any golden eagle, alive or dead, ... shall be fined not more than $5,000 or imprisoned not more than one year or both."(30) The BGEPA exempts from the statutory prohibitions takes of depreciating eagle(31) for scientific or exhibition purposes,(32) for Indian religious purposes,(33) and for falconry purposes,(34) and the Act also exempts takes of golden eagle nests.(35) In order to obtain a permit to possess eagle parts for Indian religious purposes, an individual Native American must first submit an application to the appropriate FWS Regional Director.(36)

The FWS permit application requires information such as the applicant's address, gender, physical characteristics, "association," and the location where the permitted activity will take place.(37) In addition to the generic FWS permit application requirements, Native Americans must also provide information to verify both their Native American ethnicity and their intent to use the eagle parts in a legitimate religious ceremony.(38) Specifically, the regulations require the applicant to submit three additional forms that request: 1) the species, age, and number of eagles or parts proposed to be taken or acquired by gift or inheritance; 2) the state and local area where the take would occur or from whom it would be acquired; 3) the name of the tribe with which the applicant is associated and an enrollment number, 4) the name of the tribal religious ceremony for which the parts are required; 5) a certification from the Bureau of Indian Affairs verifying that the applicant is a Native American; and 6) a certification from a duly authorized official of the religious group stating that the applicant is authorized to participate in such ceremonies.(39) Once completed, the applicant sends the appropriate forms to the Migratory Bird Permit Office in Denver, Colorado.(40)

Based on this information, the Director reviews the application information and confirms that it is complete.(41) This initial review of the application takes an average of 12.2 days.(42) The Director then forwards the forms to the Bureau of Indian Affairs (BIA), which reviews the application and certifies the applicant's Native American status.(43) BIA holds the application for an average of 26.4 days.(44) BIA then returns the application to FWS and officials investigate the applicant's proposed activity.(45) Under the regulations, the Director determines if the proposed activity is "compatible with the preservation of the bald and golden eagle."(46) The Director assesses the BGEPA's compatibility with a particular Native American religious ceremony by considering: 1) the direct or indirect effect that issuing such a permit would likely have upon the wild populations of bald or golden eagles and 2) whether the applicant is an Indian who is authorized to participate in bona fide tribal religious ceremonies.(47) If the designated activity comports with the Act's purposes and the applicant intends to participate in a legitimate Native American religious ceremony, the Director grants the permit.(48)

After the permit is granted, the Director sends the request for parts to the National Eagle Repository (the Repository) in Ashland, Oregon.(49) The Repository is a warehouse that stores recovered eagle remains regardless of the location or the manner in which the bird died.(50) If the requested parts are available, the Repository sends the appropriate parts to the applicant.(51) Otherwise, the Repository places the request on a waiting list prioritized according to the order in which the Repository receives the requests.(52) Because FWS may have up to 1,500 applications pending at one time, it takes an average of two weeks to fill requests for feathers, six months to a year to fill requests for eagle parts, and eighteen months to deliver an entire eagle carcass.(53)

In addition to the generally degrading act of requesting permission to practice one's religion and subsequently having FWS investigate the request to determine if the reported religious ceremony is legitimate, the inefficiency and delay of the BGEPA permit process impose a formidable burden on Native American religious practice.(54) FWS officials acknowledge that the delay between the time that an applicant files a Native American Religious Use Permit application and actual receipt of the parts can extend up to two or three years.(55) This delay is largely attributed to the sheer number of Native American permit applicants, each of whom may only have one request pending at any time.(56) Indeed, even the FWS Eagle Permit instructions admonish the applicant to "keep in mind that the repository serves Native Americans, throughout the fifty states [and that] supply is limited."(57) The extended delay created by the backlog of pending requests and inadequate supply of parts prevents Native Americans lawful participation in religious ceremonies that require immediate access to eagle parts.(58) Although courts have acknowledged the burden the permit process places on Native American religion, these decisions have had no effect in changing the process under current constitutional doctrine.(59)

III. JUDICIAL ELIMINATION OF ALTERNATIVE ARGUMENTS

A. The Evolution of Native American Religious Freedoms

1. Sherbert v. Verner: The Compelling Government Interest Era

In Sherbert v. Verner,(60) the Supreme Court invalidated a South Carolina Supreme Court decision that declared a member of the Seventh-Day Adventist Church ineligible for unemployment benefits under the South Carolina Unemployment Compensation Act.(61) The Court stated that the South Carolina statute was valid under the compelling government interest test if it did not burden Sherbert's religious prohibition against Saturday work, or if a compelling government interest justified the burden.(62) Because the Court found that South Carolina had not demonstrated that its action was supported by such an interest, the Court concluded that the statute was invalid and that Sherbert's compensation denial was unwarranted.(63)

Under Sherbert, Native American First Amendment challenges to alleged religiously burdensome statutes enjoyed minimal success.(64) The favorable Native American decisions witnessed under the compelling government interest test were the minority view.(65) Despite the minimal positive results of this period, the Court eliminated the compelling government interest test in Lyng v. Northwest Indian Cemetery Protective Association(66) and Employment Division, Department of Human Resources of Oregon v. Smirk.(67)

2.The End of an Era: Lyng and Smith

In Lyng, the Court struck a blow to Native American rights to prevent development near sacred Native American religious sites.(68) The Supreme Court rejected the Ninth Circuit's determination that the construction of a logging road near traditional Native American burial sites constituted an unreasonable burden on Native American religion because the government had not demonstrated a compelling government interest.(69) Focusing on whether the government action prohibited a religious activity,(70) the Court stated that Sherbert does not require the government to put forth a compelling interest for neutral, generally applicable laws that do not "coerce individuals into acting contrary to their religious beliefs."(71) Under this standard, an individual must establish that a governmental action is intended to "penalize" a particular religion in order for that action to unconstitutionally burden an individual's religious freedom.(72)

In 1990, the Smith Court affirmed the Lyng decision.(73) Smith involved the First Amendment claims of two Native American Church members who were denied unemployment compensation after their termination for sacramental peyote ingestion.(74) The Court reiterated the abandonment of Sherbert and stated that it would not apply the compelling government interest test to create an individual right to ignore a "generally applicable criminal law."(75) The Court emphasized the opportunity for the state legislature to create such an exemption but acknowledged that reliance on the legislature's discretion to adopt an exemption for specific religious practices left minority religions at a "relative disadvantage."(76) However, the Court characterized this concern as an "unavoidable consequence"(77) in a religiously diverse population supported by a democratic government.(78) This hasty dismissal of protection for minority religions typifies both the treatment that religious claimants can expect under Lyng and Smith and the insensitivity toward Native American religion inherent in the BGEPA.(79)

3. Congressional Restoration of the Compelling Government Interest Test

In an effort to strengthen First Amendment protection of minority religions after Lyng and Smith,(80) Congress enacted the Religious Freedom and Restoration Act of 1993 (RFRA).(81) Congress passed RFRA to specifically counteract the results in Lyng and Smith and to "restore the compelling government interest test set forth in Sherbert v. Verner."(82)

Even with the compelling government Interest test reinstated, Native Americans witnessed only one successful challenge to the BGEP.(83) In United States v. Gonzales, the district court of New Mexico held that, although the government had a compelling interest to protect eagles, the BGEPA violated RFRA because the permit process's informational requirements were not the least restrictive means to further that interest.(84) Despite the promise of this result, the Court invalidated RFRA and reinstated the Lyng/Smith standard in City of Boerne v. Flores.(85)

4. Supreme Court Reaction in Flores 

In Flores, the Archbishop of San Antonio sought relief under RFRA from the City of Boerne's denial of the Archbishop's request to expand the chapel of St. Peter's Catholic Church, a historical landmark.(86) The Supreme Court held that both the Fourteenth Amendment and separation of powers principles prohibited Congress's enactment of RFRA in order to restore the compelling government interest test, thus creating a substantive change in constitutional protections.(87) The Court's invalidation of RFRA diminishes Native American religions protections in two ways: First, Flores eliminates the RFRA requirement that the government put forth a compelling interest for any statute found to burden an individual's religious freedom.(88) Second, Flores reinstates the more lenient Lyng/Smith test, under which religious claimants must prove that a government action intended to "penalize" their particular religion in order for that action to violate the First Amendment.(89) For First Amendment religious freedom doctrine, Flores represents the end of nearly thirty years of compelling government interest precedent under Sherbert.(90) For Native Americans, Flores represents the foreclosure of First Amendment arguments against the overly burdensome requirements of the BGEPA.(91)

B. Hypothetical: A Facial Challenge to the BGEPA

Native Americans have traditionally challenged the BGEPA 1) as a violation of First Amendment freedoms,(92) 2) as an abridgment of a specific Native American treaty right,(93) or 3) as violating a religious freedom statute such as RFRA.(94) After the Court's invalidation of RFRA, Native Americans were left with only constitutional or treaty right challenges to the BGEPA.(95) A consideration of a hypothetical constitutional and treaty right claim against the BGEPA demonstrates the ineffectiveness of these arguments. Consequently, the hypothetical furthers the assertion that the Federal Indian Trust obligation now represents the most viable Native American argument against the BGEPA.

Assume that Crow Indian Tribe member Frank Williams applies for a permit to obtain a golden eagle carcass for use in a Native American rite of passage ceremony for a relative. Knowing about the permit process delay, Williams applies for the eagle carcass twelve months in advance. Williams submits the forms that confirm his authorization to participate in the stated religious ceremony and BIA certifies his enrollment in a recognized Indian tribe. FWS investigates the proposed activity and grants Williams's request. FWS then forwards the application to the National Eagle Repository and officials place Williams on the waiting list. Meanwhile, months pass and Williams still does not receive the eagle carcass. In response to the government's failure to provide the requested eagle carcass, Williams shoots a golden eagle out of religious necessity and is prosecuted under the Act.

At trial, Williams claims that the BGEPA is facially invalid and that the permit application process delay violates his First Amendment rights to conduct ceremonies that are vital to his religion. Additionally, Williams claims that the BGEPA violates certain rights held under a treaty between the federal government and the tribe. Would Williams's claim in this hypothetical be successful? Under the current caselaw, Williams would fail under either a First Amendment or a treaty right claim. The reasons for this failure are discussed below. However, as described in Parts V and VI of this Chapter, the recent federal promotion of the trust obligation indicates that a claim based on the obligation owed to Native Americans under the trust doctrine provides a more encouraging opportunity for success.

1. Challenge Based on a Native American Treaty Right

Until 1986, Native American treaty right challenges to the BGEPA had enjoyed limited--but encouraging--success.(96) Generally, these arguments relied on the principle that if Congress intended to abrogate a Native American treaty right, that intention must have been made explicitly clear in the statute.(97) Despite some jurisdictions' acceptance of this argument,(98) the Supreme Court foreclosed the treaty right argument in United States v. Dion.(99) In Dion, the Court held that the legislative history and the plain meaning of the BGEPA depicted a congressional intent to abrogate Native American treaty rights to hunt eagles.(100) The Dion Court's elimination of the previously successful treaty right argument represented a significant blow to future Native American challenges to the Act.(101)

2. First Amendment Challenge of the BGEPA Permit Process

With RFRA invalidated, a court will evaluate Williams's First Amendment challenge to the BGEPA permit process under the Lyng/Smith standard.(102) Under this test, a government action with an "`incidental' effect[] on religious practice does not violate the Free Exercise Clause if `neutral' and of `general applicability.'"(103) The Lyng/Smith standard gives more deference to allegedly burdensome statutes than those statutes received under the compelling government interest test that Lyng and Smith replaced.(104) Accordingly, because the BGEPA has been found facially valid under the more stringent compelling government interest standard, (105) and because the BGEPA is a neutral--generally applicable--statute, the BGEPA is presumptively valid under Lyng and Smith as well.(106)

The deference given to the statute or governmental action by the Lyng/Smith test poses a seemingly insurmountable burden for religious claimants to meet.(107) The Court made clear that even actions that "'virtually destroy the... Indians' ability to practice their religion'" would be valid so long as it did not coerce Native Americans to violate their beliefs.(108) The BGEPA permit process delay does not coerce Native Americans to violate any religious belief, nor does it destroy their religious practice,(109) Thus, under the Lyng/Smith test, the BGEPA imposes only an incidental burden on Native American religion and is a valid government action. The caselaw established under this test indicates that courts will strictly interpret and apply the Lyng/Smith standard.(110)

3. The Necessity of the Trust Doctrine Argument

In light of the apparent facial validity of both the BGEPA and its underlying permit scheme, Native Americans must develop an alternative argument to attack the BGEPA. Although not traditionally asserted as an independent basis for review, recent federal applications of the Federal Indian Trust Doctrine appear to favor elevating the trust obligation to a more prominent position in contemporary Native American law.(111) A review of the trust doctrine's origins and development demonstrates the legitimacy of the Native American fights held under the trust and outlines the Native American arguments that overcome the current barriers to a successful BGEPA challenge.

IV. THE FEDERAL INDIAN TRUST DOCTRINE

A. Introduction: The Cherokee Cases 

The Federal Indian Trust Doctrine originated from Chief Justice John Marshall's opinions in Cherokee Nation v. Georgia(112) and Worcester v. Georgia,(113) commonly referred to as the "Cherokee Cases."(114) These cases created the notion that Congress, the Judiciary, and the Executive Branch each have a fiduciary obligation to Native Americans that governs the federal government's standards of conduct toward tribal resources and culture,(115) Despite the strong foundation and longstanding recognition of the trust responsibility, application of the doctrine to Native American claims is plagued with inconsistency.(116) This inconsistency discourages Native American claimants from asserting the trust obligation as an independent basis for statutory review.(117) However, scholars attribute the variation in judicial trust doctrine interpretations to historical shifts in national policy rather than to discernible legal changes in Native American law.(118) Thus, although trust doctrine applications have traditionally been wrought with uncertainty, this uncertainty is advantageous in that longstanding precedent does not prohibit future doctrinal shifts in favor of Native Americans.(119) An examination of the cases that spawned the trust doctrine illustrates the doctrine's benefit to future Native American claims. Marshall's Cherokee Nation and Worcester opinions originally outlined the federal/tribal relationship and modern courts should return to the Cherokee Cases' language in order to appropriately interpret and apply the contemporary trust doctrine.(120)

1. Domestic Dependent Nations: Cherokee Nation and Worcester

a. Cherokee Nation v. Georgia

In Cherokee Nation, the Court held that the Cherokee Nation was not a "foreign state" and therefore could not invoke the court's original jurisdiction to request injunctive relief from a Georgia law that extended the state's jurisdiction over Cherokee territory.(121) Marshall acknowledged the unique relationship between the United States and Native Americans and maintained that the Cherokee Nation should be thought of as a "domestic dependent nation" within the United States.(122) Marshall's opinion avoided a conflict with Georgia in a period of particularly contentious states' rights issues, and it simultaneously established the Cherokee Nation's limited sovereign status.(123) Although Marshall's notion of limited sovereignty withdrew the tribes' power to either declare war or to form international treaties,(124) Marshall indicated that this was only a minimal constraint on tribal sovereignty and that the federal government, rather than the states, could impose this constraint. (125)

b. Worcester v. Georgia

In Worcester, Marshall addressed Georgia's intent to enforce a state statute that prohibited white settlers from residing in Cherokee Territory.(126) Under this legislation, Georgia prosecuted white missionaries sent to help the Cherokee translate ancient scriptures into their written language.(127) The Court pronounced the law "repugnant" to the laws of the United States, and the Court relied on rights that the Cherokee held previously under treaties with both the United States and European governments in order to strengthen the notion of limited tribal sovereignty.(128)

Marshall characterized tribal nations as "distinct political communities"(129) within the United States that submit to the federal government in order to procure protection from outside interference.(130) Marshall maintained that these treaties represented "a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, and submitting as subjects to the laws of a master."(131) The Court confirmed the treaties' preservation of tribal sovereignty and indicated that their terms did "not imply the destruction of the protected," but that both parties entered into the relationship "without ... a surrender of their national character."(132)

2. "Sovereign Trusteeship"(133)

Cherokee Nation and Worcester formulate a federal/tribal relationship under which the federal government must protect Native American interests, but the tribes remain a sovereign power.(134) This relationship has best been characterized as the "sovereign trusteeship" model.(135) However, as the following discussion will show, despite the Cherokee Cases' protection of Native American interests, later courts inexplicably abandoned Marshall's original description of the federal/tribal relationship, (136) This abandonment marked the beginning of policies intended to assimilate Native Americans and dilute the trust obligation in order to accommodate larger national policies of westward expansion.(137)

B. Plenary Power: United States v. Kagama 

The Supreme Court dramatically altered the Federal Indian Trust Doctrine in United States v. Kagama.(138) In Kagama, the Court held that federal criminal jurisdiction could be extended into Indian Territory under the Major Crimes Act.(139) The decision blatantly intruded into Native American sovereignty established under the Cherokee Cases(140) and patently contradicted Ex Parte Crow Dog,(141) a Supreme Court decision issued three years prior to Kagama.(142) Undoubtedly prompted by political and social trends,(143) the Kagama decision characterized the tribal-government relationship in a markedly different fashion than the Cherokee opinions.(144) Kagama rejected the notion of the retention of tribal power and described the tribes as "a race once powerful, but now weak and diminished in number."(145) In contrast to the Cherokee Cases, the Court emphasized the tribes' "weakness and helplessness" and asserted that the "tribes are wards of the nation," completely dependent on the United States.(146) The establishment of this dependence-based, guardian-ward relationship eliminated the sovereign-trusteeship model and asserted widespread federal power over Native American affairs.(147) The Kagama decision is generally regarded as the origin of Congress's plenary power, under which the government subjects tribes to complete federal authority.(148) The plenary power era marks the beginning of the interpretation of the trust to facilitate the education and assimilation of Native Americans.(149)

During this period, the government began to severely restrict Native American rights in accord with larger national goals.(150) In a tragic attempt to promote contemporary Christian ideals, federal policies criminalized traditional Native American religious practices,(151) ceded "surplus" tribal land to the government,(152) and sent Native American children to Christian boarding schools for up to eight years at a time.(153) The plenary power era's adverse Native American policies continued with only minor exceptions(154) until the 1960s, when Congress began to re-emphasize the federal government's duty to the tribes,(155) This renewed interest in Native Americans' self-determination(156) characterizes present federal Native American policy and is manifested in increased executive and congressional recognition of tribal fights under the trust doctrine.(157) However, federal action in the plenary power era continues to constrain the trust doctrine, and Native Americans have correspondingly never received the doctrine's full benefit in application to contemporary Native American affairs.(158)

C. The Current Status of the Trust

The modern trust doctrine languishes in a wholly amorphous and erratic form.(159) Court opinions that refer to the trust obligation consistently reach radically different conclusions regarding the duty that the federal government owes W Native Americans.(160) Others do not mention the trust obligation.(161) Despite the historically unpredictable applications of the trust obligation, the federal duty owed to the tribes has gained renewed prominence in recent years.(162) Executive and legislative action in the last twenty years reflects an intent to increasingly rely on the government's trust obligation to more actively protect Native American interests.(163) Historically, judicial shifts in trust doctrine interpretation designed to reflect executive and congressional Native American policies are not unusual.(164) Late nineteenth and early twentieth century judicial decisions reinforced the Native American assimilation and termination policies of the federal government and also reflected societal attitudes toward the duty owed to Native Americans during the height of westward expansion.(165) This judicial reinterpretation and application of the trust doctrine diminished the duty owed to Native Americans under the trust in order to accommodate the manifest destiny goals set out by the President and Congress.(166) Accordingly, the recent executive and congressional emphasis on Native American religions freedoms under the trust doctrine(167) invites a contemporary strengthening of the doctrine to relieve Native Americans from the BGEPA.

V. FEDERAL PROMOTION OF THE TRUST DOCTRINE

A. Executive Promotion of the Trust Obligation

In the 1990s, both the Bush and Clinton administrations emphasized a greater focus on governmental recognition of the trust duty.(168) President Clinton articulated an interest in reform of government practices in order to better accommodate Native American culture in a 1994 meeting of Native American and Alaskan tribal leaders at the White House.(169) At this meeting, Clinton demanded increased government respect for the Native American way of life in fulfilling the government's trust obligation.(170) Specifically, the President called for legislation "to protect Native American religious practices threatened by Federal action," and he signed a directive that instructed governmental agencies "to accommodate wherever possible the need for eagle feathers in the practice of Native American religion."(171) This presidential call for reform of agency action to satisfy the government's trust obligation implies that religiously restrictive statutes such as the BGEPA somehow breach the federal duty owed to the tribes. Although one must infer this message from the President's statements, the advancement of Native American interests under the trust doctrine remains a common theme in contemporary Native American law,(172) and it is not limited to the executive branch. Recent congressional activity reflects this sentiment as well.(173)

B. Congressional Promotion of the Trust Doctrine

Echoing the executive branch's desire to empower the trust doctrine, recent Native American legislation indicates congressional intent to protect Native American interests in fulfillment of the trust obligation.(174) For example, the 1994 Amendments to the American Indian Religious Freedom Act (AIRFA)(175) provide a federal exemption from criminal peyote possession statutes for the Native American Church and indicate congressional willingness to take action that specifically protects Native American religious practice.(176) AIRFA and its companion statute, the Religious Freedom Restoration Act of 1993 (RFRA),(177) demonstrate a concerted congressional effort in the 1990s to defend Native American religious practices.(178)

Congress enacted RFRA in response to Lyng and Smith, two Native American religious freedom cases where Congress felt that First Amendment doctrine did not provide adequate religious protection,(179) Moreover, statutes intended to promote Native American cultural and economic prosperity, such as the Native American Housing Assistance and Serf-Determination Act of 1996,(180) cite the government's "unique trust responsibility to protect and support Indian Tribes and Indian people" as the purpose behind the Act.(181) Implicit in these declarations is the notion that Congress supports a greater prominence of the trust obligation to protect Native American rights. Although Congress itself could remedy the BGEPA's burden on Native American religion, it has chosen not to do so. Nevertheless, recent congressional reliance on the trust obligation to justify certain statutes invites a judicial shift in the doctrine in order to reinstate the protection of Native American interests originally envisioned in the Cherokee Cases.

C. Judicial Interpretation of the Trust Doctrine

Although the Supreme Court has recently restricted Native American constitutional and treaty right freedoms, judicial interpretation of the government's trust obligation in the last twenty years suggests an intent to apply the doctrine to defend Native American rights. In certain cases, courts have evaluated Native American claims under different standards from those applied to the population at large.(182) Presumably, the government's trust obligation permits this application of alternative standards in Native American claims.(183)

Traditionally, courts have invoked the trust doctrine to hold the government to a fiduciary duty in managing tribal financial or natural resources,(184) In United States v. Mitchell,(185) the Supreme Court solidified the trust obligation and held that a breach of the government's duty to manage Quinault Indian forest resources required compensation.(186) However, the Mitchell court's notion of a compensable trust obligation is not limited to the natural resource context.(187) As discussed below in Part IV.B.1., the doctrine has recently been applied to protect Native American cultural values as well.

The trust obligation's extension into non-proprietary matters demonstrates that current judicial trust doctrine interpretation envisions a link between the trust obligation and Native American cultural and religious preservation.(188) When combined with the Mitchell court's notion of a compensable trust obligation,(189) the application of the trust doctrine to protect Native American cultural interests creates a framework under which a court could invoke the trust obligation to provide Native Americans relief from the BGEPA. A discussion of the trust doctrine argument's advantages in relation to the BGEPA outlines this framework.

VI. APPLICATION OF THE TRUST DOCTRINE TO THE BALD AND GOLDEN EAGLE PROTECTION ACT

Created by the judiciary, the trust doctrine embodies an overriding federal duty to protect Native American resources and the Native American way of life against governmental intrusion.(190) The trust-based argument's superiority to those traditionally advanced in Native American BGEPA challenges derives from the doctrine's unique nature. Without any well-defined boundaries, the malleable trust doctrine addresses Native American issues with a timelessness and breadth that proves advantageous to Native American religious claimants.(191) As discussed below, the trust obligation's legal advantages range from the liberation of Native American claims from examination under adverse constitutional precedent(192) to the doctrine's applicability to Native American claims regardless of substance or time period.(193) Consideration of the trust doctrine as applied to the BGEPA reveals the generally beneficial virtues of the doctrine.

A. The Transcendent Nature of the Trust Obligation

One of the trust obligation's primary benefits is its application to Native American claims irrespective of the particular facts or circumstances.(194) This characteristic is best described as the trust obligation's transcendent power.(195) Whereas Native Americans previously based claims against the BGEPA on individual constitutional, statutory, or treaty rights, the trust obligation transcends these individual rights and requires examination of a Native American claim in the context of a generalized federal obligation to preserve Native American way of life.(196) While courts have demonstrated willingness to find that Congress abrogated a particular treaty right(197) and have upheld statutes despite their burden on an individual's religion,(198) the elimination of a right held by all Native Americans under the trust doctrine is less likely. Removal of the BGEPA claim examination from a small-scale review of a particular individual's religious rights requires judicial consideration of the statute's restriction of Native American religious practice as a whole.(199) Therefore, a court confronted with a claim that the government has breached its trust obligation is presumptively faced with either the elimination of the trust obligation altogether or the decision that the trust obligation does not encompass the particular Native American right at issue.(200)

Additionally, despite federal policy intended to subjugate and even eliminate Native American culture during the assimilation and termination eras, the government continues to acknowledge the fiduciary duty owed to the tribes.(201) Regardless of the historical variation in governmental interpretation and fulfillment of the trust duty, an indiscriminate elimination of the trust doctrine is unlikely. The persistent governmental recognition of the trust obligation demonstrates the doctrine's power to transcend individual Native American claims and provide a comprehensive duty to protect Native American interests from the BGEPA.

Although cultural protection is not traditionally included under a trust obligation, Chief Justice Marshall originally characterized the federal/tribal trust relationship as "unlike that of any other."(202) Thus, a court's outright declaration that the doctrine included no duty to preserve Native American religion would deviate from the current federal application of the doctrine.(203) The Cherokee Cases reflect a general intent to preserve the Native American way of life,(204) and later decisions have applied the trust obligation to Native American religion.(205) Based on these decisions, certain courts envision a trust obligation that encompasses Native American cultural and religious preservation.(206)

Although the trust obligation provides an umbrella-like argument that extends to most Naive American claims, courts have rarely relied on the trust obligation in the religious preservation context Although the current federal promotion of the doctrine appears to incorporate religious interests under the trust obligation,(207) this incorporation is by no means a foregone legal conclusion. A successful Native American BGEPA challenge must first convince a court to recognize the fiduciary governmental duty to preserve Native American religion under the trust doctrine. Despite the difficulty of this argument, both the First and Fifth Circuits have recently invoked the trust obligation to distinguish the protection that Native American religion deserves under the doctrine. These decisions not only definitively connect the trust doctrine with Native American religion, but they also provide an excellent outline of the potential application of the trust doctrine to relieve Native Americans from the BGEPA.

B. The Rupert and Peyote Way Model

In Rupert v. Director, United States Fish and Wildlife Service,(208) the First Circuit struck down an establishment clause challenge to the BGEPA Native American permit scheme.(209) In Rupert, the pastor of a church that had adopted Native American religious customs and formed its own tribe applied for a FWS eagle feather permit.(210) FWS denied the pastor's application after the Bureau of Indian Affairs refused to certify the pastor's membership in a recognized Native American tribe.(211) The pastor sued FWS and claimed that the refusal to grant permits to parties not "descended from a specific historical tribe" violated the First Amendment Establishment Clause.(212) The First Circuit disagreed and cited the Peyote Way Church of God, Inc. v. Thornburgh(213) rational relation test to justify the alternative treatment that the trust obligation affords Native American tribes under the BGEPA.(214)

In Peyote Way, members of the Peyote Way Church sued for a declaratory judgment that Texas and federal laws that exempted Native American Church members from criminal peyote possession statutes violated the Fourteenth Amendment's Equal Protection Clause.(215) The Fifth Circuit struck down this claim based on the exemptions' rational relation "to the legitimate governmental objective of preserving Native American culture."(216) This objective, the court stated, "is fundamental to the federal government's trust relationship with Tribal Native Americans."(217)

Rupert extended the Peyote Way rational relation test to the BGEPA context and demonstrated that the BGEPA's allowance of Native American use of eagle parts is partially based on the government's trust obligation.(218) Although Rupert partially relied on the trust doctrine for the constitutionality of the permit system's exclusive extension to Native American tribal members,(219) the court was not confronted with the question of whether or not the BGEPA burden on Native American religion violated the government's trust obligation.(220) Nevertheless, the Rupert court's introduction of the trust obligation in the BGEPA context encourages the chances for a successful trust-based claim against the BGEPA in the future.

The Rupert court's reliance on the trust obligation to sustain the BGEPA's Native American permit provisions is instrumental to Native American trust obligation claims for several reasons. First, Rupert legitimizes the preservation of Native American religion under the trust obligation and establishes precedent for this connection that other jurisdictions may follow. Additionally, the decision upholds a narrowly tailored, Native American exception to a generally applicable law--an action that concerned the Smith Court.(221) Finally, Rupert builds on Peyote Way's analysis and demonstrates that the judiciary should evaluate Native American trust interests under more protective standards than those applied to non-Native Americans.

1. The Trust Doctrine Encompasses Native American Religious Practice

Both Rupert and Peyote Way establish a judicially recognized link between Native American religious practice and the government's trust responsibilities.(222) Although Native American cultural and religious preservation is often implicitly included under the trust obligation, courts most frequently apply the trust doctrine in the Native American finance or natural resource context.(223) However, the Rupert and Peyote Way reliance on the doctrine, when upholding the exclusive Native American exemptions from the statute, indelibly links Native American religious practices with the government's trust obligation. Moreover, the Rupert court's application of the trust obligation in the BGEPA context explicitly connects the trust obligation's protective standards to Native American religious practitioners' access to eagle parts.(224) Rupert and Peyote Way legitimize the trust doctrine's protection of Native American religious interests and disregard judicial reluctance to rely on the trust obligation as an essential basis for decision. The federal courts should now extend the Rupert justification of the BGEPA permit provisions to grant Native Americans narrowly focused relief from the BGEPA permit process.

2. The Trust Obligation Allows Narrowly-Tailored Decisions to Preserve Native American Religious Practice

The narrowly tailored permit process upheld in Rupert addresses the Smith(225) court's reluctance to create a "private right to ignore generally applicable laws."(226) The Smith court feared that a Native American exemption to a religiously burdensome statute would dilute the value of an established constitutional standard.(227) The Court warned that the arbitrary application of a constitutional test leads to anarchy and eventually degenerates into a lack of protection for anyone.(228)

The Rupert Court's reliance on the Native American permit scheme's rational relation to the trust obligation allowed it to fulfill its duty to protect Native American religion, while simultaneously avoiding detriment to the existing constitutional doctrine.(229) Because the trust responsibility removes the deliberation from the constitutional context, relief granted under the trust will not effect constitutional standards. Furthermore, because "no other group of people [is] favored in this manner,"(230) a court's reliance on the trust obligation to provide relief from the BGEPA will not allow non-Native Americans to argue that they too should receive the trust doctrine's heightened protective standards. Relief granted to a BGEPA claimant based on the singular duty owed to Native Americans under the trust doctrine satisfies the Smith Court's anarchy concerns and also provides Native Americans narrowly tailored relief from the Act.

3. The Trust Obligation Mandates More Protective Standards in Evaluation of Native Americans Claims

In Peyote Way, the Fifth Circuit noted the longstanding federal application of alternative constitutional and statutory standards to Native Americans.(231) The Supreme Court previously established the notion that Native Americans enjoy enhanced protection under the trust obligation in Morton v. Mancari.(232) In Morton, the Court upheld the Bureau of Indian Affairs' preferential requirement in hiring and promoting Native Americans.(233) The Court characterized tribal nations as quasi-sovereign political entities rather than as a specific racial group, and partially relied on the government's trust obligation to uphold the requirement, even though it "single[d] out Indians for particular and special treatment."(234)

Peyote Way invokes this heightened protection and applies it to Native American religion.(235) The Fifth Circuit dismissed the Peyote Way Church's Establishment Clause(236) argument and noted a court's inability to fulfill its "role as protector of tribal Native Americans and apply conventional separatist understandings of the establishment clause to that same relationship."(237) Thus, in Peyote Way, the Fifth Circuit endorses an approach that applies alternative standards to claims where Native American interests protected under the trust doctrine are at stake.

Rupert expands these protections to a constitutional claim against the BGEPA and demonstrates that Native American trust doctrine considerations are entitled to a level of protection that non-Native Americans will not receive. Thus, if the trust doctrine affords Native Americans religious protection that non-Native Americans do not enjoy, the extension of this enhanced trust doctrine protection indicates that courts should consider Native American trust doctrine claims with more deference than the current First Amendment Lyng/Smith standard provides.(238) Protection of Native American religious and cultural interests reflects the recent promotion of the trust obligation by Congress and the Executive and also marks a return to the "domestic dependent nation[]" status that Chief Justice Marshall envisioned under the Cherokee Cases.(239) When judged under the appropriate trust-based standards, Native American claims against the BGEPA should prevail where the traditional Native American arguments have failed.

VII. CONCLUSION

A creation of the judiciary, the Federal Indian Trust Doctrine exists independent of constitutional, statutory, or treaty rights, and the doctrine spawns a broad federal duty to protect Native American resources and culture.(240) The dramatic fluctuation in the historical interpretation and application of the doctrine mirrors the general inconsistencies inherent in Native American law. Nevertheless, in light of the failure of traditional Native American arguments against the BGEPA, the trust doctrine may now represent the most formidable argument available for a successful challenge to the Act. Although shifts in Native American policy have degraded the trust obligation, the notion of a governmental duty to protect Native American culture and religion persists.(241) Recent executive and congressional emphasis on the trust obligation indicates the intent to restore the enhanced protections to which Native Americans are entitled. Traditionally, judicial interpretation of the Trust Doctrine has followed Congress and the executive, even through the damaging allotment and assimilation periods. Historical precedent dictates that judicial decisions reflect the current perceptions of trust.(242) Because current trust doctrine applications involve enhanced protection of Native American religious practices, courts should invoke the doctrine to grant Native Americans relief from the religiously burdensome BGEPA. Only when Native Americans can practice their religion without a permit and without delay will the government fulfill its role as a fiduciary. Only then will Native Americans realize the full force of the duty to which they are entitled.

(1) United States v. Hugs, 109 F.3d 1375, 1377 (9th Cir. 1997); 16 U.S.C. [subsections] 668-668d (1994).

(2) 16 U.S.C. [sections] 668 (1994).

(3) Antonia M. De Meo, Access to Eagles and Eagle Parts: Environmental Protection v. Native American Free Exercise of Religion, 22 HASTINGS CONST. L.Q. 771, 772-73 (1995).

(4) 16 U.S.C. [sections] 668a (1994).

(5) Hugs, 109 F.3d at 1377.

(6) See De Meo, supra note 3, at 802-07.

(7) See De Meo, supra note 3, at 802-10 (discussing Native American religious claims based on either the First Amendment or The American Indian Religious Freedom Act, 42 U.S.C. [sections] 1996 (1994), and stating that these claims do not provide "effective religious protection").

(8) The Religious Freedom Restoration Act of 1993, 42 U.S.C. [sections] 2000bb (1994). The Court declared The Act unconstitutional in City of Boerne v. Flores, 521 U.S. 507 (1997). However, the reach of this effect remains in dispute. See infra note 89.

(9) See Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988); Employment Div., Dept of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (eliminating the need for government action to be supported by a "compelling government interest" in order to justify the burden of an individual's religion).

(10) United States v. Dion, 476 U.S. 734, 745 (1986).

(11) See De Meo, supra note 3, at 808.

(12) See id.

(13) See Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471, 1495; see also Sharon L. O'Brien, Freedom of Religion in Indian Country, 56 MONT. L. REV. 451, 474 (1995); Janice Aitken, The Trust Doctrine in Federal Indian Law: A Look at Its Development and How Its Analysis Under Social Contract Theory Might Expand Its Scope, 18 N. ILL. U.L. REV. 115, 115 (1997).

(14) See De Meo, supra note 3, at 808.

(15) United States v. Thirty-Eight Golden Eagles, 649 F. Supp. 269, 276 (D. Nev. 1986). For a more in-depth discussion of both the importance of the eagle in Native American religion and the effects of the BGEPA permit process on Native American religious practices, as described in the legislative history of the Amendments to the American Indian Religious Freedom Act of 1994 (AIRFA), see De Meo, supra note 3, at 774-94.

(16) De Meo, supra note 3, at 775; Propped Amendments to the American Indian Religious Freedom Ach--Part I: Hearing Before the Senate Select Comm. on Indian Affairs, 103rd Cong. 36 (1993) [hereinafter Proposed AIRFA Amendments--Part I]; American Indian Religious Freedom Act--Part II: Oversight Hearing Before the Subcomm. on Native American Affairs of the House Comm. on Natural Resources, 103rd Cong. 159 (1993) [hereinafter AIRFA--Part II).

(17) Proposed AIRFA Amendments-Part I, supra note 16, at 317.

(18) AIRFA--Part II, supra note 16, at 235.

(19) Id. at 159.

(20) Religious Freedom Act: Hearing Before the Senate Select Comm. on Indian Affairs, 102nd Cong. 4 (1992).

(21) Proposed Amendments to the American Indian Religious Freedom Act--Part II: Hearing before the Senate Select Comm. on Indian Affairs, 103rd Cong., 1st Sess. 282 (1993) [hereinafter Proposed AIRFA Amendments-Part II].

(22) Gibson v. Babbitt, 72 F. Supp.2d 1356, 1361 (S.D. Fla. 1999); De Meo, supra note 3, at 789; see also United States v. Abeyta, 632 F. Supp. 1301, 1307 (D.N.M. 1986) (stating that the BGEPA permit process was "cumbersome, intrusive, and demonstrates a palpable insensitivity to Indian religious beliefs").

(23) See De Meo, supra note 3, at 773 (citing the enacting clause of the Eagle Protection Act of 1940, 16 U.S.C. [sections] 668 (1940)).

(24) 16 U.S.C. [subsections] 668-668d (1940).

(25) Eagle Protection Act Amendments of 1962, Pub. L. 87-884, 76 Stat. 1246 (Oct. 24, 1962).

(26) Id.; 16 U.S.C. [sections] 668a (1994).

(27) 16 U.S.C. [sections] 668a (1994); Eagle Permits, 50 C.F.R. [sections] 22 (1998).

(28) 16 U.S.C. [sections] 668a; 50 C.F.R. [sections] 22 (1998).

(29) See AIRFA--Part H, supra note 16, at 156-57. Native Americans describe the extended delay with the permit process, the poor condition of the eagles once received, and the general disregard for Native American Religion inherent in the process as the major problems with the BGEPA permit and eagle distribution system.

(30) 16 U.S.C. [sections] 668(1994).

(31) 50 C.F.R. [sections] 22.23 (1998).

(32) Id. [sections] 22.21.

(33) Id. [sections] 22.22.

(34) Id. [sections] 22.24.

(35) Id. [sections] 22.25.

(36) Id. [sections] 22.22(a).

(37) Id. [sections] 13.12(a).

(38) Id. [sections] 22.22(a)(1)-(6).

(39) Id.; see Department of the Interior, U.S. Fish and Wildlife Service, Division of Law Enforcement Service Eagle Permit Instructions [hereinafter FWS Eagle Permit Instructions], at http://www.r6.fws.gov/law/le59.html (last visited Jan. 15, 2000). The site includes the Native American Religious Purposes Permit Application and Shipping Request (FWS form 3-200EP), the USDI/FWS Certificate of Enrollment (FWS form 3-200E), and the USDI/FWS Certificate of Participation (FWS form 3-200P).

(40) 50 C.F.R. [sections] 22.21(a) (1998); see FWS Eagle Permit Instructions, supra note 39.

(41) United States v. Jim, 888 F. Supp. 1058, 1060 (D. Or. 1995).

(42) Id.

(43) Id.

(44) Id.

(45) Id.; 50 C.F.R. [sections] 22.22(c) (1998). The certification by BIA and the investigation of the proposed activity may be conducted concurrent, l&

(46) 50 C.F.R. [sections] 22.22(c) (1998).

(47) Id. [sections] 22.22(c)(1)-(2).

(48) Jim, 888 F. Supp. at 1060.

(49) Id. Eagle parts are also stored at the National Eagle and Wildlife Repository in Commerce City, Colorado. Gibson v. Babbitt, 72 F. Supp.2d 1356, 1357 (S.D. Fla. 1999).

(50) AIRFA--Part II, supra note 16, at 196.

(51) Id.

(52) Jim, 888 F. Supp. at 1060, AIRFA--Pert H, supra note 16, at 163-64; Proposed Amendments to the American Indian Religious Freedom Act: Hearing Before the Senate Select Comm. on Indian Affairs, 102nd Cong. 28 (1992).

(53) Jim, 888 F. Supp. at 1060, AIFRA--Part II, supra note 16, at 163-64. See also Gibson, 72 F. Supp.2d at 1361 (stating that, as of February 1999, a three to three and a haft year delayexisted to receive an entire eagle carcass).

(54) AIRFA--Part H, supra note 16, at 159, 50 C.F.R. [sections] 22.22 (c)(l) (1998). See also De Meo, supra note 3, at 789 (stating that, in addition to the processing delay, the poor condition of the eagles received, the lack of processing priority, the governmental failure to recognize Indian sovereignty, and general governmental insensitivity toward Native American religion also plague the BGEPA permit process).

(55) AIRFA--Part II, supra note 16, at 195-96.

(56) Id. at 163-64; FWS Eagle Permit Instructions, supra note 39.

(57) FWS Eagle Permit Instructions, supra note 39.

(58) See De Meo, supra note 3, at 790 (describing the impossibility of a Tribe obtaining eagle feathers for burial ceremonies required to be performed within a week of a Tribal member's death through a permit process that takes years to complete).

(59) United States v. Jim, 888 F. Supp. 1058, 1062-63 (D. Or. 1995) (holding that while the BGEPA permit process burdened the defendant's religion, that burden was justified by a compelling government interest); United States v. Abeyta, 632 F. Supp. 1301, 1307 (D.N.M. 1986) (holding that "the federal administrative apparatus erected to accommodate Indian religious needs is utterly offensive and ultimately ineffectual" and not supported by a compelling government interest). But see City of Boerne v. Flores, 521 U.S. 507 (1997) (effectively overruling both Jim and Abeyta by holding that Congress's attempt to restore the compelling government interest test in the Religious Freedom Restoration Act of 1993, 42 U.S.C. [sections] 2000bb (1994), was unconstitutional).

(60) 374 U.S. 398, 403 (1963). Although Sherbert v. Verner was not the first decision to recite the "compelling state interest" test, along with Wisconsin v. Yoder, 406 U.S. 205 (1972), it is specifically referenced in the RFRA provisions as the precedent to apply rather than Lyng v. Northwest Indian Cemetery Protective Ass'n. 485 U.S. 439 (1988), and Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

(61) Sherbert, 374 U.S. at 400; S.C. CODE TIT. 68, [subsections] 68-114 (1962).

(62) Sherbert, 374 U.S. at 400.

(63) Id. at 410.

(64) See Abeyta, 632 F. Supp. at 1307 (holding that the government had not demonstrated a compelling interest in protecting eagles, and, even if such an interest existed, the BGEPA scheme did not represent the least restrictive means of pursuing that interest).

(65) See United States v. Thirty-Eight Golden Eagles, 649 F. Supp. 269 (D. Ney. 1988) (holding that the Bald and Golden Eagle Protection Act does not violate the First Amendment under the compelling government interest test).

(66) 485 U.S. 439 (1988).

(67) 494 U.S. 872 (1990).

(68) Lyng, 485 U.S. at 441-42.

(69) Id. at 450 (reversing Northwest Indian Cemetery Protective Ass'n v. Peterson, 764 F.2d 581, 596 (9th Cir. 1985)), aff'd in part, 795 F.2d 688 (9th Cir. 1986).

(70) Lyng, 485 U.S. at 451.

(71) Id. at 450.

(72) Id. at 449; see also Michael J. Simpson, Accommodating Indian Religions: The Proposed 1993 Amendment to the American Indian Religious Freedom Act, 54 MONT. L. REV. 19, 20 (1993).

(73) Smith, 494 U.S. 872 (1990).

(74) Id. at 874.

(75) Id. at 884, 886.

(76) Id. at 890.

(77) Id.

(78) Id.

(79) Id.; See De Meo, supra note 3, at 793-94.

(80) Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. at 439; Smith, 494 U.S. at 872.

(81) 42 U.S.C. [sections] 2000bb (1994).

(82) Id. [sections] 2000bb(b)(1)-(2). The statute states that one of the purposes of RFRA is "to provide a claim or defense to persons whose religious exercise is substantially burdened by government." Id.

(83) See United States v. Gonzales, 957 F. Supp. 1225 (D. N.M. 1997).

(84) See id. at 1228. The Gonzales court focused on 50 C.F.R. [sections] 22.22(a)(4) and (a)(6), which require disclosure of the tribal ceremony to be conducted and certification from a tribal elder that the applicant is authorized to conduct the ceremony. The court held that these informational requirements were not the least restrictive means of furthering the government's interest in protecting eagles. Id. at 1228.

(85) 521 U.S. 507 (1997).

(86) Id. at 512; 42 U.S.C. [sections] 2000bb (1994).

(87) Flores, 521 U.S. at 532, 535.

(88) Id. Additionally, under Flores, Native Americans lost the benefit of any RFRA legislative history that cites protection of Native American religious values as the intent behind the statute. See generally Religious Freedom Restoration Act of 1990: Hearing on H.R. 5377 Before the House Subcomm. on Civil and Constitutional Rights of the House Judiciary Comm., 101st Cong. 49 (1990); Religious Freedom Restoration Act of 1991: Hearing on H.R. 2797 Before the House Subcomm. on Civil and Constitutional Rights of the House Judiciary Comm., 102nd Cong. 331-34 (1992).

(89) Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 449 (1988). Certain courts have found that Flores invalidated RFRA as applied to state statutes under the Fourteenth Amendment but nonetheless did not overrule the statute as applied to federal statutes. See, e.g., Adams v. Commissioner of Internal Revenue, 170 F.3d 173 (3rd Cir. 1998); Alamo v. Clay, 137 F.3d 1336 (D.C. Cir. 1998). A court that adopts this rationale will apply the compelling government interest test as codified in RFRA to a BGEPA challenge. See, e.g., Gibson v. Babbitt, 72 F. Supp.2d 1356, 1359 (S.D. Fla. 1999) However, the continued applicability of RFRA remains in debate. See generally Simpson, supra note 72, at 20 (requiring penalizing governmental intent to establish a particular action as unconstitutional). Because Native Americans did not experience widespread success under either the compelling government interest test or the Lyng and Smith test, this debate has little impact on the success of a challenge to the BGEPA. Accordingly, this Chapter applies the Flores decision as if it invalidated RFRA in both the state and federal context

(90) Sherbert v. Verner, 374 U.S. 398, 403 (1963).

(91) See also Simpson, supra note 72, at 20, 21.

(92) See United States v. Hugs, 109 F.3d 1375 (9th Cir. 1997).

(93) See United States v. Dion, 476 U.S. 734 (1986).

(94) See U.S. v. Jim, 888 F. Supp. 1058 (D. Or. 1995).

(95) See supra Part III.A.4.

(96) See United States v. White, 508 F.2d 453, 457 (8th Cir. 1974) (affirming that the Red Lake Band of Chippewa Indians have an implicit treaty right to hunt eagles on Tribal land). See also United States v. Abeyta, 632 F. Supp. 1301, 1306-07 (D. N. M. 1986) (upholding a hunting right granted by the Treaty of Guadalupe Hidalgo).

(97) Washington v. Washington Commercial Passenger Fishing Vessel Ass'n., 443 U.S. 658, 690 (1979); see also White, 508 F.2d at 456; Abeyta, 632 F. Supp. at 1307.

(98) See supra note 96.

(99) 476 U.S. 734 (1986).

(100) Id. at 745.

(101) See generally id. (upholding Native American treaty fights to hunt eagles).

(102) See Simpson, supra note 72, at 20. Certain courts have found that RFRA is still valid as applied to federal statutes, and these courts would apply the compelling government interest test to a religious freedom challenge to the BGEPA. See supra note 89.

(103) U.S. v. Hugs, 109 F.3d 1375, 1378 n.1 (9th Cir. 1997), quoting Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 878-79, 884-85 (1990).

(104) See supra Part III.A.

(105) See United States v. Jim, 888 F. Supp. 1058, 1065 (D. Or. 1995) (holding that while the BGEPA permit process did burden Jim's religion, the burden was justified by the government's interest in preserving the eagle).

(106) See supra Part III.A.2; see also Simpson, supra note 72, at 20. Simpson describes the chances of satisfying the Lyng/Smith standard as "virtually impossible." Id.

(107) See Simpson, supra note 72, at 20.

(108) Lyng v. Northwest Indian Protective Ass'n, 485 U.S. 439, 449, 452-53 (1988), 485 U.S. at 449, 452-53 quoting Northwest Indian Cemetery Protection Ass'n v. Peterson, 795 F.2d 688, 693 (9th Cir. 1986).

(109) See generally supra note 16. Although a complete denial of all access to eagle parts would likely destroy Native American religion, the BGEPA does provide an avenue through which Native Americans can obtain eagle parts for religious purposes. Regardless of how the permit process burdens Native American religion, it provides Native Americans with eagle parts. Thus, under Lyng/Smith, Native American religion has not been "destroy[ed]." Lyng, 485 U.S. at 451.

(110) See Thiry v. Carlson, 78 F.3d 1491, 1496 (10th Cir. 1996). In a case that demonstrates the harshness of the Lyng/Smith test, the Tenth Circuit upheld the condemnation of the burial site of Marc and Diane De Fries Thiry's recently stillborn child to create a turn-around area along the highway. The couple claimed that their religion required them to remain near the spirit of their deceased child, that the road improvements would require them to relocate their child's remains, and that Diane De Fries Thiry had used the site for religious purposes since she was seven years old. The court held that because the Thirys would retain their religious beliefs even if the condemnation took place, and because the exhumation of the remains was not strictly forbidden by their faith, the condemnation would not burden their religious practice. See also Havasupai Tribe v. United States, 752 F. Supp. 1471, 1485 (D. Ariz. 1990) (Forest Service plan for a mining operation on sacred Havasupai grounds did not penalize the tribe for their beliefs and did not violate the First Amendment).

(111) See infra Part V.

(112) 30 U.S. (5 Pet.) 1 (1831).

(113) 31 U.S. (6 Pet.) 515 (1832).

(114) Aitken, supra note 13, at 115. The exact origins of the trust doctrine are debated even after centuries of scholarly research. See Wood, supra note 13, at 1495. Some scholars maintain that Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823), or State v. Tassels, I Dud. (Ga) 229 (1830), should also be included in the "Cherokee Cases." See Ray Torgerson, Sword Wielding and Shield Bearing: An Idealistic Assessment of the Federal Indian Trust Doctrine in American Indian Law, 2 TEX. F. ON C.L & C.R. 165, 187 (1996); JILL NORGREN, THE CHEROKEE CASES, THE CONFRONTATION OF LAW AND POLITICS 5 (1996). The dispute is understandable because these cases are all part of the struggle of the Court to deal with Indian issues in the early 19th century. However, because Cherokee Nation and Worcester are most commonly referred to as the basis for the fiduciary duty of the federal government, these are the cases discussed in this Part.

(115) Aitken, supra note 13, at 115; Wood, supra note 13, at 1495.

(116) Wood, supra note 13, at 1495.

(117) See id.

(118) See generally Torgerson, supra note 114, at 174-75 (describing the allotment and assimilation policies of the federal government in second half of the 19th century).

(119) See id. at 180-81 (discussing the alternative approach to Native American claims that the trust doctrine might allow).

(120) Aitken, supra note 13, at 115; see Wood, supra note 13, at 1499-1500.

(121) Cherokee Nation v. Georgia, 30 U.S. (5 Pet) 1, 20 (1831); NORGREN, supra note 114, at 99.

(122) NORGREN, supra note 114, at 101; Cherokee Nation, 30 U.S. (5 Pet.) at 17.

(123) NORGREN, supra note 114, at 102; Cherokee Nation, 30 U.S. (5 Pet.) at 16.

(124) NORGREN, supra note 114, at 102-03.

(125) Id.

(126) Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 538 (1832).

(127) Id.

(128) Worcester, 31 U.S. (6 Pet.) at 557, 551; NORGREN, supra note 114, at 117.

(129) Worcester, 31 U.S. (6 Pet.) at 557.

(130) Id.

(131) Id. at 555.

(132) Id. at 552.

(133) See Wood, supra note 13, at 1498. Wood coined the term "sovereign trusteeship" to describe the early relationship between the federal government and the tribes under Cherokee Nation and Worcester. Id.

(134) See id. at 1496-99.

(135) Id. at 1498.

(136) See infra Part IV.B.

(137) See generally Simpson, supra note 72, at 27-29 (discussing federal assimilationist policies and the resultant harm to Native Americans).

(138) 118 U.S. 375 (1886).

(139) Kagama, 118 U.S. at 376; Wood, supra note 13, at 1502; Major Crimes Act, ch. 341, sec. 9, 23 stat. 362, 385 (1885) (codified at 18 U.S.C. [sections] 1153 (1994)).

(140) See Wood, supra note 13, at 1499-1501.

(141) 109 U.S. 556 (1883). In Crow Dog, the Court freed a Native American accused of a murder on an Indian Reservation. The Major Crimes Act was passed in the midst of the public outcry after the Crow Dog decision. Torgerson, supra note 114, at 175 n.52.

(142) Wood, supra note 13, at 1502; see Torgerson, supra note 114, at 175.

(143) See supra note 114. Additionally, this period marks the beginning of the U.S. government's allotment and assimilation plans for Native Americans. See Simpson, supra note 72, at 27-30.

(144) See Torgerson, supra note 114, at 175.

(145) United States v. Kagama, 118 U.S. 375, 384 (1886).

(146) Id. at 383-84.

(147) Id; Torgerson, supra note 114, at 175-76.

(148) Wood, supra note 13, at 1503.

(149) Torgerson, supra note 114, at 175-76.

(150) Simpson, supra note 72, at 28-30.

(151) See id. Simpson states that a 1921 Office of Indian Affairs circular advised that the sundance and other Native American religious ceremonies were prohibited under the current regulations and subject to corrective penalties.

(152) See id. Under the General Allotment Act of 1887, ch. 119, sec. 1, 24 Stat 388 (1887), tribal members were each given 160 acres of land with any excess land ceded to the federal government to be distributed to homesteaders or mining and timber operations.

(153) See id.

(154) See id. at 30. The Indian Reorganization Act, (codified as amended at 25 U.S.C.[subsections] 461-79 (1982)), attempted to curtail Congress' seemingly unlimited exercise of its plenary power. However, the benefits received under the Act were by Congress's "termination" period of the 1950s. Under this policy, Congress terminated some tribes and took away benefits received under federal statutes based on the belief that federal involvement was hindering Indian prosperity. Id.

(155) Id.

(156) See Wood, supra note 13, at 1474.

(157) Simpson, supra note 72, at 30-31.

(158) Wood, supra note 13, at 1506.

(159) See id. at 1504; O'Brien, supra note 13, at 478 (describing the uncertainty and confusion associated with the trust doctrine, its origins, and its applications).

(160) Compare Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 886 (1990) (holding that the Court would not create a Native American "right to ignore generally applicable laws") with Peyote Way Church of God v. Thornburgh, 922 F.2d 1210, 1216, 1220 (5th Cir. 1991) (holding that both the federal and state exemption from statutes prohibiting peyote possession given exclusively to members of the Native Americans Church did not violate the equal protection clause based on the rational relation of the exemption to the government's trust obligation).

(161) See generally Torgerson, supra note 114, at 77-78.

(162) See infra Part V.

(163) See O'Brien, supra note 13, at 474-84.

(164) See Simpson, supra note 72, at 28-31.

(165) See id.

(166) Chadwick Smith & Faye Teague, The Response of the Cherokee Nation to the Cherokee Outlet Centennial Celebration' A Legal and Historical Analysis, 29 TULSA L.J. 263, 293 (1993).

(167) Infra Part V.A.-B.

(168) Statement Reaffirming the Government-to-Government Relationship Between the Federal Government and Indian Tribal Governments, 27 Pub. Papers 662 (June 14, 1991); see also O'Brien, supra note 13, at 483.

(169) O'Brien, supra note 13, at 483; see Statement Announcing a Meeting With Native American Leaders, 30 Pub. Papers 541 (Mar. 23, 1994); Memorandum: Policy Concerning Distribution of Eagle Feathers for Native American Religious Purposes, 59 Fed. Reg. 22,953 (Apr. 29, 1994); Statement Announcing a Meeting With Native American Leaders, 30 Pub. Papers 541 (Mar. 23, 1994); Interview with Larry King in Culver City, California, 31 Pub. Papers 1427, 1436 (Sept. 21, 1995).

(170) See Remarks to Native American and Native Alaskan Tribal Leaders, 30 Pub. Papers 800, 801 (Apr. 29, 1994). See also 59 Fed. Reg. at 22,953.

(171) Remarks to Native American and Native Alaskan Tribal Leaders, 30 Pub. Papers 800, 801 (Apr. 29, 1994). See also 59 Fed. Reg. at 22,953.

(172) Julian Schriebman, Developments in Policy: Federal Indian Law, 14 YALE L. & POL'Y REV. 353, 374 (1996).

(173) See discussion infra Part V.B.

(174) O'Brien, supra note 13, at 484.

(175) American Indian Religious Freedom Act Amendments, Pub. L No. 103-344, [sections] 2, 108 Stat. 3125 (Oct. 6, 1994); (amending 42 U.S.C. [sections] 1996 (1994)).

(176) O'Brien, supra note 13, at 482.

(177) 42 U.S.C. [subsections] 2000bb (1994); see supra Part III.A.3.

(178) See supra Part m.A.3. Although RFRA provided additional protection for all religions, its enactment--in response to two cases involving Native American religion (i.e. Lyng and Smith)-- supports the inference that Congress had Native American interests in mind to some extent.

(179) See supra Parts 111.A.2, III.B.2.

(180) 25 U.S.C. [subsections] 4101-4212 (1994).

(181)Id. [sections] 4101(3).

(182) See O'Brien, supra note 13, at 478.

(183) Id.

(184) See Wood, supra note 13, at 1506.

(185) 463 U.S. 206 (1983).

(186) Id. at 228.

(187) Torgerson, supra note 114, at 187.

(188) See id.

(189) Mitchell, 463 U.S. at 228.

(190) Wood, supra note 13, at 1495, 1506.

(191) See id. at 1491, 1506.

(192) See infra Part VI.B.3.

(193) See Wood, supra note 13, at 1506. Not all actions taken by Native Americans are encompassed by the protective standards inherent in the trust obligation. Actions patently unrelated to Native American status, culture, or resources fall under traditional legal standards. The lack of definition regarding which rights the trust obligation encompasses provides an uncertain basis for relief at best. O'Brien, supra note 13, at 478-81. However, because Indian treaties provided the basis for Chief Justice Marshall's original outline of the doctrine, the trust duty should at least encompass typical Native American treaty rights, including the right to retain the Native American culture and way of life. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 551-63 (1883). This author envisions the trust obligation as incorporating all rights generally granted in Indian treaties, including implicitly granted rights. However, the transcendent nature of the trust doctrine bestows these rights on Native Americans as a class, rather than on one particular tribe or tribal member.

(194) See Wood, supra note 13, at 1506.

(195) Id.

(196) See generally id. (revitalizing The Federal Indian Trust Doctrine to address Native American claims against the BGEPA).

(197) United States v. Dion, 476 U.S. 734, 745 (1986).

(198) United States v. Jim, 888 F. Supp. 1058, 1062-43 (D. Or. 1996).

(199) See generally Wood, supra note 13, at 1506.

(200) See infra Part VI.B.3.

(201) Simpson, supra note 72, at 28-33; see also supra notes 188-89.

(202) Cherokee Nation v. Georgia, 30 U.S. (5 Pat.) 1, 16 (1831).

(203) See infra Part VI.B.1. The protections included under the trust doctrine are debatable, and a specific definition of the rights that the trust doctrine protects does not exist See O'Brien, supra note 13, at 478.

(204) See Worcester v. Georgia, 31 U.S. (6 Pet) 515, 553-63 (1883) (describing, in part, the Native American right to retain traditional hunting and agricultural practices under treaties formed with the United States).

(205) See Rupert v. Director U.S. Fish & Wildlife Serv., 957 F.2d 32, 35 (1st Cir. 1992); Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1216 (5th Cir. 1991); see also infra Part VI.B.1.

(206) See infra Part VI.B.1.

(207) See id.

(208) 957 F.2d 32 (1st Cir. 1992).

(209) Id. at 34-36.

(210) Id. at 33.

(211) Id. at 33-34.

(212) Id. at 34.

(213) 922 F.2d 1210 (5th Cir. 1991).

(214) Rupert, 957 F.2d at 35. The Rupert court relied on both the semi-sovereign status of Native American tribes and the "unique obligation" owed to Native Americans to justify the exemption of only Native Americans under the BGEPA. Id, Many modern courts have distinguished the treatment that Native Americans receive based on a designation as a distinct political group from a social or cultural distinction. See, e.g., Morton v. Mancari, 417 U.S. 535, 554 (1974); Washington v. Washington State Passenger Fishing Vessel Ass'n, 443 U.S. 658, 673 n. 20 (1979). However, the Court indicates that the trust obligation underlies the alternative treatment of Native American issues by consistently referring to the "unique obligation toward the Indians" as the partial basis for this distinct political status. Washington State Passenger Fishing Vessel Ass'n, 443 U.S. at 673 n. 20.

(215) Peyote Way, 922 F.2d at 1210.

(216) Id. at 1216.

(217) Id.

(218) Rupert, 957 F.2d at 35.

(219) Id. at 34-35.

(220) Id.

(221) See supra Part III.A.2; infra Part VI.B.2.

(222) See Simpson, supra note 72, at 48; Rupert, 957 F.2d at 35.

(223) See United States v. Mitchell, 463 U.S. 206, 207 (1983); United States v. Sioux Nation of Indians, 448 U.S. 371 (1980).

(224) See Rupert, 957 F.2d at 34-35.

(225) Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990); see supra Part III.A.2.

(226) Smith, 494 U.S. at 886.

(227) Id. at 888.

(228) Id.

(229) Id.

(230) Morton v. Mancari, 417 U.S. 535, 554 (1974).

(231) Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1214 (5th Cir. 1994).

(232) 417 U.S. 535 (1974); see also O'Brien, supra note 13, at 478.

(233) Morton, 417 U.S. at 555.

(234) Id. at 554-55.

(235) Peyote Way, 922 F.2d at 1217.

(236) U.S. CONST. amend. I.

(237) Peyote Way, 422 F.2d at 1217.

(238) See supra Part III.A.2.

(239) Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831); see supra Part V.A-B.

(240) See Wood, supra note 13, at 1495, 1506.

(241) See Simpson, supra note 72, at 28-31.

(242) Id.

MATTHEW PERKINS, Articles Editor, Environmental Law, 2000-2001; J.D. expected May 2001, Northwestern School of Law of Lewis and Clark College; B.S., Texas A&M University. The author would like to thank Professor Susan F. Mandiberg for her invaluable comments and guidance in completing this Chapter. The author would also like to thank Michelle McIsaac and the entire staff of Environmental Law for their patience in revising this Chapter and for their unparalleled editing work