Todd L. Tisdale*

Abstract:  Since its origination in 1916, the National Park Service has grown to manage over 370 park areas encompassing more than 80 million acres. While each park area is unique in its character and significance, experience has shown that general uniformity in regulation of the Nartional Park System is necessary to avoid a proliferation of park-by-park regulations. In this way, the NPS is able to adhere to its conservation mandate. Last year, the Department of the Interior—which oversees the NPS—proposed a special regulation that would enable members of the Hopi Tribe possessing permits granted under the Bald and Golden Eagle Protection Act to remove and sacrifice young golden eagles from the national monument. On the one hand, the proposed special regulation facilitates an important Native American cultural and religious practice. On the other, it allows for taking of park resources in a manner that could threaten the integrity of the park system. This Note argues that, amidst the tension between culture and conservation, the DOI lacks the authority to promulgate the special regulation.


On January 22, 2001, the Department of the Interior (DOI) proposed a special regulation entitled “Religious Ceremonial Collection of Golden Eaglets From Wupatki National Monument.”1 The regulation reads:

Upon terms and conditions sufficient to prevent impairment to park resources, and upon a showing that the Tribe has a [*PG112]valid permit to collect golden eaglets under the Bald and Golden Eagle Act, . . . the Superintendent of Wupatki National Monument shall grant a permit to the Hopi Tribe to collect golden eaglets from Wupatki National Monument for religious ceremonial purposes.2

The DOI bases the perceived need for this new regulation on an examination of the existing National Park Service (NPS) regulations and a need to revise them.3 The legal justification for the revision is founded on an examination of the National Park Service’s Organic Act, as well as constitutional considerations, applicable statutes, caselaw, and executive orders regarding the exercise of Native American religious practices and the collection of golden eagles.4 Further, the proposal explores the Hopi’s ancestral links to Wupatki National Monument (Wupatki) and the use of golden eagles in Hopi religious ceremonies.5

In 1924, President Calvin Coolidge declared Wupatki a national monument in order to preserve “two groups of prehistoric ruins built by the ancestors of a most picturesque tribe of Indians still surviving in the United States, the Hopi or People of Peace.”6 Wupatki , located near Flagstaff, Arizona, covers fifty-four square miles and is home to more than 2700 archeological sites and a declining number of golden eagles.7

The DOI was prompted to propose the new regulation when the Superintendent of Wupatki refused to allow members of the Hopi to gather golden eagle hatchlings within the boundaries of the monument.8 In the spring of 1999, several members of the Hopi tribe entered Wupatki to collect golden eagle hatchlings.9 The Hopi had planned to nurture the hatchlings for a month and then smother [*PG113]them in a religious ceremony that the Hopi believe will free the eagles’ spirits and enable them to carry messages between the physical and spiritual worlds.10 The Hopi men obtained a federal permit from the DOI allowing them to collect up to forty golden eagle or re-tailed hawk hatchlings for the religious ceremony.11 The permit, granted under the Bald and Golden Eagle Protection Act (BGEPA), allowed the Hopi men to take golden eagles from the Northwest region of Arizona, but was silent regarding its applicability to Wupatki.12 When they turned away the Hopi permittees, park rangers and the monument Superintendent asserted a general prohibition against taking species from NPS lands except under limited circumstances, which do not include the gathering of hatchlings for Native American religious purposes.13 In response to this authorization, the DOI drafted and proposed the new regulation which may prove to have implications well beyond the fate of certain golden eagle hatchlings at a small national monument.14 The regulation proposed on January 22, 2001 may signal a new approach to the management of NPS park areas and their resources.15

This Note examines the appropriateness of the proposed regulation for Wupatki, and its implications for other units in the National Park System (System). Section I outlines the permitting process by which Native Americans may obtain golden eagles for use in religious ceremonies. Section II outlines the evolution of the System’s management approaches by examining amendments to the NPS’s Organic Act and the subsequent regulation of activities in the System. Section III discusses the current status of Native American religious freedom. Section IV analyzes the proposed rule and concludes that the collection of wildlife for Native American religious purposes should be regulated as a consumptive activity and, as such, should not be allowed without direct and specific legislation. Section IV also examines [*PG114]the constitutional, statutory, and policy reasons on which the DOI bases the proposed regulation.

I.  The Bald and Golden Eagle Protection Act

In 1782, the Continental Congress adopted the bald eagle as the national symbol of the United States.16 At that time, an estimated 25,000 to 75,000 bald eagle pairs were nesting in the United States.17 Despite its few natural enemies, the bald eagle population dwindled to an alarmingly small number by the early part of the twentieth century.18 Reacting to this decline, in 1940 Congress passed the Bald Eagle Protection Act (BEPA), which imposed criminal and civil penalties on individuals who took, possessed, transported, or transacted in bald eagles in part or whole; dead or alive; adult, fledgling, hatchling, egg, or nest.19 Through BEPA Congress intended to preserve a species that was “no longer a mere bird biological interest but a symbol of the American ideals of freedom.”20 Due at least in part to the success of the BEPA’s and other acts’ protection of the species, the bald eagle population has rebounded, and administrators upgraded bald eagles from endangered to threatened status in 1995.21

In 1962, Congress amended BEPA to protect also golden eagles.22 Renamed the Bald and Golden Eagle Protection Act (BGEPA), the Act serves to prevent accidental killings of bald eagles, even though golden eagles are neither endangered nor threatened.23 Young bald eagles and young golden eagles are virtually indistinguishable because bald eagles do not develop their distinctive white crown and tail [*PG115]feathers until they are four to five years old.24 BGEPA, however, does not provide absolute protection for eagles because the BGEPA enables the Secretary of the Interior (Secretary) to establish regulations for the issuance of permits allowing certain individuals to take eagles.25 The Secretary may only issue permits when the taking is compatible with the preservation of the bald and golden eagles.26 Thus, the BGEPA and subsequent permitting regulations strictly limit the circumstances under which the Secretary may grant permits.27

A.  Statutory Framework

The BGEPA limits the circumstances in which the Secretary may grant permits to take bald or golden eagles.28 Congressional amendments to the BGEPA empower the Secretary to establish permit-granting regulations for public museums, scientific societies, zoological parks, as well as to protect wildlife, agriculture, or other interests in particular localities.29 The Secretary may also grant permits to individuals to take golden eagles if the eagles pose a threat to domestic flocks and herds, and the Secretary may allow eagles taken for that purpose to be used by falconers.30 Most importantly for the purposes of this Note, the BGEPA enables the Secretary to issue permits to members of Native American tribes to take eagles for use in religious ceremonies.31

The 1962 Amendment extending protection to golden eagles also recognized the special significance these birds hold for many Native American peoples.32 Consequently, Congress amended the BGEPA to include an exemption enabling the Secretary to grant permits to members of Native American tribes to take eagles for use in religious ceremonies.33 While this amendment created an exception from the proscriptions of the BGEPA, it concomitantly abrogated treaties that previously allowed Native Americans to take the birds [*PG116]without permits.34 As a result of the 1962 Amendment, Native Americans may only take, transfer, or possess golden eagles, their parts, feathers, eggs, or nests for religious purposes through BGEPA permits granted pursuant to the statute and accompanying DOI regulations.35

B.  Regulatory Framework

Pursuant to the BGEPA, the DOI promulgated regulations for the granting of golden eagle taking permits to Native Americans.36 These permits, issued by the Fish and Wildlife Service (FWS), require that applicants disclose:

1.Species and number of eagles or feathers proposed to be taken, or acquired by gift or inheritance.

2.State and local area where the taking is proposed to be done, or from whom acquired.

3.Name of tribe with which applicant is associated.

4.Name of the tribal religious ceremony(ies) for which required.37

In addition to these disclosures, the applicant “must attach a certification of enrollment in an Indian tribe that is federally recognized under the Federally Recognized Tribal List Act of 1994.”38

Applications are submitted to the FWS’s Migratory Bird Permit Office in Denver, Colorado, where they are reviewed for completeness and then forwarded to the Bureau of Indian Affairs (BIA).39 The BIA then reviews the tribal affiliations of the applicants.40 Only members of federally recognized tribes participating in bona fide ceremonies will be approved for permits.41

In Rupert v. United States Fish and Wildlife Service, a pastor and members of a congregation who were not ancestrally linked to a federally recognized Native American tribe were refused a BGEPA permit for taking and possessing eagle feathers.42 The circuit court upheld [*PG117]the rejection of the permit, refusing to extend the Native American exception to those who merely practiced a Native American religion.43 The court stated that:

[t]he exemption . . . does not merely serve the government’s interest in (1) protecting Native American religion and culture and (2) protecting a dwindling and precious eagle population; it sets those interests in equipoise. Any diminution of the exception would adversely affect the former interest, but any extension of it would adversely affect the latter.44

Thus, the court ruled that granting the applicants’ permit request would contravene the policies behind the exemption.45

If the tribal affiliation and ceremonial elements of the permit application are satisfied, the application is sent to the FWS for final approval pending a determination that the proposed taking “is compatible with the preservation of the bald and golden eagle.”46 In assessing the compatibility with species preservation, the FWS examines, inter alia, the direct and indirect effect permit issuance and subsequent taking of golden eagles will have on the wild populations of golden and bald eagles.47 The entire permitting process may take many months.48 Presently, the only way in which Native Americans may take or possess eagles, their parts, or feathers for religious use is through the DOI permitting process.49

[*PG118]C.  Challenges to the BGEPA

The permitting process has withstood a number of challenges.50 As noted in Rupert, the language of the BGEPA and subsequent regulations have been upheld by federal courts.51 In addition to challenges regarding the tribal affiliation requirement, the BGEPA has weathered facial challenges on the grounds that it abrogates treaty rights previously granted to individual tribes, and that the permit process impedes the First Amendment rights of Native Americans to exercise freely their religion.52 These challenges have been raised as affirmative defenses by individuals prosecuted under the BGEPA.53

1.  Treaty Challenges

Challenges to the BGEPA based on a theory that certain Native American treaties preserved tribal hunting rights met with some initial success.54 However, a recent decision by the Supreme Court firmly asserted that Congress, through the passage of the BGEPA, intentionally abrogated hunting treaties with Native Americans.55 Accordingly, under this precedent, treaty challenges to the BGEPA will fail.56

In United States v. Abeyta, decided prior to United States v. Dion, the District Court of New Mexico dismissed a government action against a Native American man, Jose I. Abeyta, who had hunted and killed a golden eagle within the boundaries of aboriginal lands in New Mexico.57 Abeyta successfully argued that the 1848 Treaty of Guadalupe Hidalgo afforded him protection from prosecution under the BGEPA.58 Article IX of the treaty guaranteed that Mexican nationals residing in the territory ceded to the United States would be “secured in the free exercise of their religion without restriction.”59 The treaty benefited, among other people, the residents (and descendants) of the Isleta Pueblo, of which Abeyta was a member.60 The District Court of New Mexico held in favor of Abeyta because it concluded that the [*PG119]language of the BGEPA lacked a showing that Congress intended to “repudiate its earlier undertaking to honor the religious freedom of the pueblo people.”61 Absent an explicit and express declaration of the intent to abrogate treaties, the Disctrict Court ruled that the BGEPA did not apply to Native Americans who killed golden eagles for religious purposes at the Isleta Pueblo.62

In United States v. Dion, decided the same year as Abeyta, the Supreme Court unanimously upheld the conviction of a member of the Yankton Sioux Tribe charged with killing four bald eagles on reservation land.63 Dion had asserted that the 1858 Treaty with the Yankton, which ceded 400,000 acres of tribal lands to the United States government, did not restrict the tribe’s rights to hunt on reservation lands, and that the treaty preserved the tribe’s rights to hunt bald and golden eagles for noncommercial purposes.64 However, Justice Marshall’s opinion explicitly stated that “Congress’s 1962 action . . . reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald or golden eagle, except pursuant to permit, is inconsistent with the need to preserve those species.”65 Thus, in Dion, the Supreme Court overruled the federal district court’s holding in Abeyta that Native American hunting treaties are not abrogated by the BGEPA.66

2.  Free Exercise Challenges

In United States v. Jim,67 decided prior to the Supreme Court’s invalidation of the Religious Freedom Restoration Act (RFRA), the United States District Court for the District of Oregon upheld the conviction of a Native American for killing two golden eagles and two bald eagles without a BGEPA permit.68 Jim asserted that the BGEPA was unconstitutional because it substantialy burdened the free exer[*PG120]cise of Jim’s Native American religious practices.69 The court agreed that BGEPA did indeed impose such a burden.70 However, employing the “compelling government interest” test, the court determined that the BGEPA accomplished a legitimate goal of eagle preservation through the “least restrictive means.”71 Thus the court, balancing the interest in protecting golden eagles against the burdens the BGEPA places on religious practice, rejected Jim’s First Amendment claim.72

More recently, in United States v. Hugs,73 the Ninth Circuit Court of Appeals74 affirmed a lower court’s decision that a facial challenge to the BGEPA failed to show that the burden imposed by the act overrides the compelling governmental interest in eagle preservation.75 Based on the test imposed by Congress through RFRA, the court’s unanimous decision held that while the Supreme Court’s City of Boerne decision was yet to be published,76 BGEPA would certainly pass the less stringent “general applicability” test put forth in Employment Division v. Smith.77

In sum, from its initial passage in 1940 and through subsequent amendments, most significantly in 1962, the BGEPA has served to protect important eagle populations.78 Regulations promulgated by the DOI have implemented the process by which Native Americans may obtain golden eagles pursuant to the 1962 Amendment.79 Further, the decisions of the Supreme Court and other federal courts, particularly those of the Ninth Circuit, have upheld the BGEPA in the face of treaty and “free exercise” challenges.80

[*PG121]II.  The National Park Service

In 1916, the National Park Service Act (“Organic Act”) created the NPS within the Department of the Interior.81 Congress formed the NPS to manage an emerging system of national parks that was created in 1872, when Yellowstone became the first national park.82 Today, the System includes over 370 park areas encompassing over 80 million acres.83 The Organic Act explicitly charges the NPS with the promotion and regulation of the parks, monuments, and reservations within the System in conformity with “the fundamental purpose . . . to conserve the scenery and the natural and historical objects and the wild life [sic] therein and to provide for the enjoyment of the same in such a manner and by such means as will leave them unimpaired for the enjoyment of future generations.”84

The System’s “fundamental purpose” has raised some debate as to whether it asserts a dual, and perhaps contradictory, NPS mandate.85 Congress clearly mandated that the NPS “conserve” park system resources.86 However, Cognress stated that the NPS must conserve park system resources for “enjoyment,” which may be interpreted as use.87 The perceived tension between these objectives has been reflected in changes in the NPS’s approach to managing park resources.88 In part, these changes correspond to amendments to the Organic Act and are manifested in the promulgation of subsequent regulations.89 Specifically, regulations that govern the activities [*PG122]that are permitted or prohibited within park areas evidence the NPS’s changing management philosophy.90

A.  Management of the National Park System

In the early years of the System, from the passage of the Organic Act in 1916 until the early 1960s, the NPS focused on establishing and managing a variety of park areas, ranging from recreation areas, rivers, and seashores, to cultural, historical, and battlefield parks.91 The NPS developed approximately twenty designations for the types of park areas in the System.92 These park areas, established either through congressional act or executive order,93 allow for a broad range of activities requiring a patchwork of park-by-park management procedures.94 For instance, different parks had different provisions for such seemingly basic elements as boundary delineation and management procedures.95 The fragmentation of rules and procedures produces a lack of clarity as to the purpose of the System and the mission of the NPS.96

In 1964, in an effort to bring a sense of order to the System, Secretary of the Interior Stewart Udall created three management categories for park areas: natural, historical, and recreational.97 While the categorization of park areas provided a simplified classification system, these new categories did little to change the actual regulations applied to each park area.98 For instance, park areas categorized as “recreational” maintained their openness to activities such as hunting, fishing, and camping, as previously permitted by three layers of law: federal, state, and local.99 In actuality, the creation of management categories did little to increase the protection of park system resources or to develop a uniform approach to managing the System.100

[*PG123] By 1970, Congress recognized that the diversity of management schemes employed by the NPS threatened the integrity of the System and the park resources therein.101 Responding to this situation, Congress amended the Organic Act in an effort to bring uniformity to the management of the System.102 The 1970 Amendment stated that:

[T]he [park] areas, though distinct in character, are united through their inter-related purposes and resources into one national park system as cumulative expressions of a single national heritage; . . . and that it is the purpose of the Act to include all such areas in the System and to clarify the authorities applicable to the system.103

This amendment illustrated Congress’s intent to managed parks, with varying purposes and rules, in a more uniform manner under the general umbrella of the Organic Act.104

In 1978, Congress redoubled its dedication to the preservation of the System’s resources by passing another amendment to the Organic Act.105 Congress worded the new amendment to enable the Secretary to address external threats to park resources.106 The amendment reads:

The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided for by Congress.107

Thus, activities that depredate park service resources, including wildlife, can only be allowed within park areas pursuant to “direct[] and specific[]” congressional provision.108

[*PG124] Pursuant to the 1978 Amendment, the Secretary must consider the System as a whole when promulgating regulations authorizing any activities in park areas.109 Further, commentators have read the provision that those activities must not harm the “high public value and integrity” of the System to emphasize a dictate that only Congress can create provisions deviating from the uniform protection of park areas and resources.110 When read in conjunction with the language of section 1 of the Organic Act, the amendment prohibits the Secretary from promulgating regulations that derogate the fundamental purpose of the System as stated in 1916.111 This reading is bolstered by the legislative history of the amendment that states, in part: “[t]he protection of the units of the system is to be carried out in accordance with the maintenance of the system, and the management of those areas shall not compromise these resource values except as Congress may have specifically provided.”112 Thus, even the removal of park system resources for administrative purposes, such as the culling of diseased animals, must conform to the overarching mandate of park preservation.113

B.  Regulation of Activities Taking Wildlife from Park Areas

Regulations promulgated by the Secretary regarding the removal of wildlife from park areas illustrate the implementation of the fundamental purpose of the Organic Act and its subsequent amendments.114 These regulations distinguish activities that take animals for recreational or commercial purposes and those that further the protection of the System’s resources.115 Accordingly, the former activities are generally prohibited unless explicitly allowed by a park area’s enabling act or congressional provision; the latter activities are generally permitted because they are in accord with the Organic Act’s mandate for preservation.116

[*PG125]1.  Hunting and Trapping in the National Park System

In the Organic Act, Congress stated that the authorization of any activities in park areas must be consistent with the protection, management, and administration of park areas in light of their high public value and integrity.117 Congress may provide for activities either through statute or a park area’s enabling act.118 For example, hunting and trapping are banned in all park areas except for some national recreation areas where these activities are strictly regulated.119 Since 1987, the text of 36 C.F.R.  2.2, the regulation restricting hunting and trapping in park areas, has read:

(a)The following are prohibited:

(1)The taking of wildlife, except by authorized hunting and trapping activities conducted in accordance with paragraph (b) of this section.

(2)The feeding, touching, teasing, frightening or intentional disturbing of wildlife nesting, breeding or other activities.

(3)Possessing unlawfully taken wildlife or portions thereof.

(b)Hunting and trapping

(1)Hunting shall be allowed in park areas where such activity is specifically mandated by Federal statutory law.

(2)Hunting may be allowed in park areas where such activity is specifically authorized as a discretionary activity under Federal statutory law if the superintendent determines that such activity is consistent with public safety and enjoyment, and sound resource management principles. Such hunting shall be allowed pursuant to special regulations.

(3)Trapping shall be allowed in park areas where such activity is specifically mandated by Federal statutory law.120

Thus, a specific congressional mandate or authorization is necessary before the DOI can permit hunting or trapping within park areas.121

[*PG126] In National Rifle Ass’n v. Potter, the NRA challenged the DOI’s regulation prohibiting hunting and trapping in park areas, arguing that properly regulated hunting and trapping is consistent with the conservation language in the Organic Act.122 Hence, the NRA asserted that no express congressional command is necessary to enable the Secretary to allow hunting and trapping in park areas.123 In his decision denying the challenge, Judge Thomas Penfield Jackson reviewed the Organic Act and relevant legislative history that the DOI relied on when it enacted the regulation.124 Judge Jackson concluded that because Congress had passed legislation allowing hunting and trapping in specific parks but had not addressed the System in general, it was reasonable to construe this silence as a prohibition.125 Further, because the Organic Act enumerates some permissible activities, the principle expressio unius est exclusio alternius126 led to the conclusion that the DOI was rational in its prohibition of hunting and/or trapping in other areas of the System.127 Therefore, one may infer that hunting and trapping are activities that derogate the values and purposes for which park areas have been established, and are prohibited except where directly and specifically provided for by Congress.128

In contrast to the prohibition of hunting and trapping in the absence of park-specific legislation, Congress enacted the Alaska National Interest Land Conservation Act (ANILCA), which directly and specifically enables those activities on public lands throughout Alaska.129 ANILCA, in conjunction with the Organic Act, allows for rural Alaskans to pursue “subsistence uses”130 of resources on federally-owned lands, including park areas.131 Through ANILCA, Congress directed the Secretary to accommodate rural Alaskans’ need (as dictated by regional advisory councils) to take wildlife from park areas for “customary and traditional” non-commercial uses unless the Sec[*PG127]retary determines that these activities, inter alia, violate conservation purposes, threaten the sustainability of wildlife populations, or are contrary to the purpose for which the park area was established.132 ANILCA overlies the Organic Act and obviates the need for park-by-park hunting and trapping legislation in the state of Alaska.133 However, similar legislation pertaining to the rest of the United States has not been passed. Thus, direct and specific legislation is still required to allow hunting and trapping in park areas in other states.134 Further, such a provision need not be for a particular park, rather it can encompass numerous park areas.135

2.  Species Management and Scientific Specimens

Congress has enabled the Secretary to provide for limited removal or destruction of animals in park areas in a manner that does not call for specific park-by-park authorization as required in 36 C.F.R.  2.2.136 For instance, Congress granted the Secretary general discretion to provide for the destruction of species that may be detrimental to the use of any park area.137 This provision comports with the fundamental purpose of the System because conservation necessarily involves the prevention of harms.138 By regulating the destruction of detrimental animals, the Secretary is not enabling an activity that derogates the values and purposes for which park areas exist; rather, she is eliminating the source of derogation.139

In a manner consistent with the fundamental purpose of the System but without explicit legislative authority, the Secretary has also promulgated a regulation that allows the taking of scientific specimens from park areas.140 Such takings may occur at the discretion of each park area’s superintendent.141 This is permissible because the removal of animals for scientific study or zoological display may, in fact, aid conservation by increasing knowledge of species’ biology and behavior, or by simply raising awareness and familiarity with a spe[*PG128]cies.142 Thus, the activity is not derogative and does not require direct and specific congressional provision to allow it.143

To assure adherence to the purpose of conservation, the regulation restricts the conditions under which scientific specimens may be removed from park areas so as not to adversely affect environmental or scenic values.144 A park superintendent cannot allow a park’s wildlife to be collected if collection would damage other park resources, if collection would adversely affect environmental or scenic values, or if the specimen is readily available outside of the park area.145 Under these restrictions, superintendents may allow specimen collection in any park area where a park’s enabling statute authorizes or does not expressly prohibit the killing of wildlife.146 This element differs from the hunting and trapping regulation because it generally permits, rather than prohibits, the activity.147

III.  Native American Religious Freedom

All three branches of the federal government have touched on the issue of Native American religious freedom. Congress has passed the Religious Freedom Restoration Act (RFRA), establishing that only legislation that furthers a “compelling state interest” by the least restrictive means may burden the free exercise of religion by Americans generally,148 and the American Indian Religious Freedom Act (AIRFA), stating the policy of the United States toward protecting and preserving Native American religious practices.149 Federal courts, especially the Supreme Court, have interpreted each of these acts.150 [*PG129]Through policy statements and executive orders, President Clinton strove to make the accommodation of Native American religious practices a priority for federal agencies and departments.151

A.  The Court v. the Religious Freedom Restoration Act

Over the last fifteen years, the Supreme Court and Congress have contended over the standard of review for the constitutionality of legislation that interferes with or places a burden on the exercise of religious practice.152 The Supreme Court and Congress have articulated two different tests: (1) a strict “compelling state interest” test;153 and (2) a more lenient general applicability test articulated by Justice Scalia in 1990.154 The Supreme Court continues to favor the general applicability test to determine the permissibility of legislation burdening the free exercise of religion.155

In Smith, the Supreme Court held that generally applicable criminal laws that consequently inhibit an individual’s religious practices are not unconstitutional.156 In light of the diversity of American religious beliefs, the Court noted that the “compelling state interest” test would severely limit the government’s ability to pass laws.157 Therefore the Court balked at the proposition that an individual’s religious beliefs would afford that individual an exemption from an otherwise generally applicable law.158 In a strongly worded opinion, Justice Scalia stated, “[a]ny society adopting such a system would be courting anarchy.”159

[*PG130] In 1993 Congress enacted RFRA “in direct response to the Court’s decision in . . . Smith.160 RFRA asserts that government actions that substantially burden an individual’s free exercise of religion are permissible only if they further a compelling state interest and are the least restrictive means of doing so.161 Thus, through RFRA, Congress abrogated the judicially-created general applicability test formulated in Smith.

In 1997, RFRA, came under fire in City of Boerne v. Flores.162 There, Justice Kennedy’s opinion upheld the City’s denial of the Archbishop of San Antonio’s request to expand the historic St. Peter’s Catholic Church.163 The Archbishop sought to enlarge the structure to accommodate the growing congregation attending Sunday masses.164 The City refused the request because the local Historic Landmark Commission designated the area around the church a historic district, preventing the alteration of the building.165 Petitioners argued that refusal of their request constituted a violation of their free exercise rights, claiming that the City’s rationale failed to meet the “compelling state interest” test under RFRA.166 The Court held that RFRA exceeded Congress’s authority under Section Five of the Fourteenth Amendment and was found unconstitutional.167 Further, Justice Kennedy declared that Congress did not have the authority to enact RFRA because Congress cannot substitute its own interpretation of constitutional rights for the Supreme Court’s.168 Justice Kennedy pointed out that the Court had already decided that generally applicable laws that burden religious practices are constitutional.169 Congress cannot ef[*PG131]fectively decide otherwise by requiring that the tougher “compelling state interest” test be satisfied before finding a law constitutional.170 Thus, Justice Kennedy concluded that RFRA’s “compelling state interest” test was not appropriate for determining the constitutionality of the City’s permit denial; rather, the Court’s own “general applicability” test was the appropriate standard.171 Although RFRA is still on the books, the Smith standard was reaffirmed by City of Boerne.172

B.  American Indian Religious Freedom Act

In 1978, Congress enacted the American Indian Religious Freedom Act (AIRFA). AIRFA simply reads:

Henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.173

By its plain language, AIRFA simply states policy and creates no new rights for Native Americans.174 As such, AIRFA has “no teeth in it”175 and AIRFA-based challenges to administrative acts have met with disappointing results.176

In Wilson v. Block, members of the Hopi and Navajo tribes appealed a lower court decision that the Forest Service had not violated Native American rights articulated in AIRFA.177 The Forest Service had granted permission for the expansion of a ski area in the San Francisco Peaks, a site that some Native Americans believe to be the [*PG132]home of their gods.178 The petitioners asserted that AIRFA should be read broadly so as to “proscribe all federal land uses that conflict with or interfere with traditional Indian religious beliefs or practices, unless such uses are justified by compelling governmental interests.”179 The Court of Appeals for the District of Columbia refused to read the Act as bropadly and held, that the Forest Service fulfilled its AIRFA obligations by taking into account Native American concerns through public hearings.180 The Court noted that the Forest Service need not defer to those concerns.181 The Court relied in part on Representative Udall’s statement which illustrated that AIRFA does not supersede the many laws governing federal land management.182

C.  Executive Orders & Policy

During his term in the White House, President Clinton issued a policy statement and a number of executive orders pertaining to the rights of Native Americans in the practice of their religious ceremonies and culture. In directives issued in 1994,183 1996,184 1998,185 and 2000,186 President Clinton directed agencies and departments to accommodate Native Americans, respectively: in the acquisition of golden eagle parts and feathers;187 in accessing sacred sites;188 by considering applications for waiver of federal statutes and regulations;189 and by considering the input of Native Americans when promulgating regulations and policies.190 While these statements by the past Administration established a general policy approach for departments [*PG133]and agencies in the Executive Branch, they do not carry the force of law; nor can they override existing laws.191

IV.  The Proposed Regulation

On January 22, 2001, the DOI published a proposed rule that would allow members of the Hopi tribe possessing valid BGEPA permits to collect golden eagle hatchlings from nesting areas and to remove them from Wupatki. 192 The DOI has asserted that the proposed special regulation addresses a narrow and legitimate need to accommodate Hopi religious practices, and that the promulgation of the regulation falls within the authority of the DOI as delineated by the Organic Act.193 These assertions are vulnerable for two reasons. First, although the proposal is limited to Wupatki, by setting a precedent for the rest of the System, the proposal may open other areas of the System to a greater range of consumptive activities. 194 Second, the DOI lacks a reasonable foundation to promulgate the regulation.

A.  The Need for Consistency with the Current Approach to
Park System Management

In the supplementary material accompanying the proposed regulation in the Federal Register, the DOI explicitly states that the proposed regulation applies only to the narrow situation at Wupatki.195 However, the DOI acknowledges that other tribes may submit similar requests for the taking of wildlife from other park areas.196 When, not if,197 this occurs, the DOI has explained that such requests “will be addressed on their merits.”198 This statement intimates that, in addition to previously–regulated activities such as hunting and trapping,199 scientific collection,200 and species management,201 the DOI is consid[*PG134]ering a new type of takings for the System.202 Hence, the proposed regulation raises two questions: (1) how the ceremonial collection of wildlife from park areas should be classified; and (2) how the activity should be managed under the current philosophy of the NPS.

As previously detailed in this Note,203 the DOI’s regulation of activities that take wildlife from park areas may be classified into two primary categories, namely consumptive activities204 and administrative takings.205 Consumptive activities include, for instance, hunting and trapping,206 while the culling of diseased or detrimental animals is an example of an administrative taking.207 The taking of animals for scientific or exhibition purposes is a subset of the latter category.208 The categorization of these activities dictates the degree to which an activity is permitted.209 The categorization of an activity is defined by the impact the taking will have on a park area and the resources therein contained.210

1.  Consumptive Activities

The language and legislative history of the Organic Act illustrate that consumptive activities are strictly managed and generally prohibited within the System.211 The rationale for this restriction arises from the “fundamental purpose” of the System as articulated in the Organic Act: “to conserve the scenery and natural and historical objects and the wild life [sic]” in park areas.212 Further, the Organic Act has been amended in order to articulate more acutely the need for the preservation of park resources.213 To this end, the language of the 1978 Amendment eliminated the discretion of the DOI, NPS, and park superintendents for allowing any activities that harm “the values and purposes for which . . . various [park] areas have been established.”214 Such activities are permitted only if “directly and [*PG135]specifically provided for by Congress.”215 For example, hunting is prohibited throughout the park system unless provided for by a park area’s enabling act or by subsequent legislation.216

When the language of the 1978 Amendment focusing on individual park areas is considered together with the need for uniformity expressed in the 1970 Amendment, it becomes evident that regulators must consider the impact of those activities on the System as a whole, not just within the borders of a particular park.217 Following this principle, the DOI must consider that consumptive activities allowed in one park may have a detrimental effect on all parks by eroding the preservation mandate first put forth by Congress in 1916.218 Therefore, absent congressional provision for regulations that otherwise run counter to prior legislation, the DOI should not permit consumptive activities within park areas.219

As noted above, Congress may directly and specifically provide for consumptive takings either through a park area’s enabling act or through subsequent legislation.220 This subsequent legislation may address a single park, or, as in the case of park areas in Alaska, it may encompass many units of the System.221 Whatever vehicle is employed, the provision must be direct and specific.222 For instance, in Michigan United Conservation Clubs, the Sixth Circuit Court of Appeals held that a park’s enabling act that permitted hunting could not be expanded to include trapping.223 Thus, courts will interpret such provisions very narrowly.224

2.  Administrative Takings

The reasoning that requires the prohibition of consumptive activities unless directly and specifically provided for by Congress explains why administrative takings are allowed unless specifically pro[*PG136]hibited.225 Administrative takings are performed for the protection of wildlife and other park resources.226 Protecting wildlife and park resources from harm fulfills the preservation mandate articulated in the Organic Act.227 Therefore, activities such as eliminating diseased animals or culling surplus herds that might harm a park area may be regulated by the DOI with broad discretion.228

Similar to the regulation of detrimental animals takings, the DOI also regulates the taking of wildlife from the System for scientific specimens or for exhibition purposes, but in a more restrictive manner.229 Section 2.5(c) of the regulation pertaining to specimen collection dictates that wildlife “listed pursuant to the Endangered Species Act, or similarly identified by the States,” cannot be taken from park areas “unless the species cannot be obtained outside of the park area and the primary purpose for the collection is to enhance the protection and management of the species.”230 If these conditions are satisfied, the removal of specimens from park areas is viewed as part of a greater preservation effort.231 Thus, these takings comport with the fundamental purpose of the Organic Acts and the DOI may regulate them with broad discretion.232

3.  Ceremonial Taking of Wildlife

The DOI should regulate the gathering of golden eagle hatchlings from Wupatki and similar takings of wildlife for ceremonial use as a consumptive activity.233 Like hunting and trapping, ceremonial takings serve the needs of individuals outside of the System. In the present situation, that need is identified as the accommodation of the religious practices of the Hopi tribe.234 Because the Wupatki regulation was not proposed for the purpose of eliminating detrimental wildlife or protecting other park resources, it can be distinguished [*PG137]from regulations regarding administrative takings.235 Thus, the taking of wildlife for Native American religious ceremonies should only be permitted if Congress has directly and specifically provided for such takings through a park area’s enabling act or through subsequent legislation.236

As stated in the Introduction of this Note, President Coolidge proclaimed Wupatki a national monument in 1924.237 Wupatki’s Enabling Act unambiguously states that the monument’s purpose is the preservation of prehistoric ruins built by the ancestors of the Hopi, but it does not mention the allowance of any takings, ceremonial or otherwise.238 Given that court decisions such as Michigan United Hunt Clubs have read park enabling acts narrowly, only allowing consumptive activities that are directly and specifically provided for by Congress, the DOI should follow suit and not extrapolate from Wupatki’s Enabling Act a provision for the taking of golden eagle hatchlings by the Hopi.239

The precedent set at Wupatki will most certainly be followed in other park areas.240 In fact, Native Americans have already made ceremonial takings requests or demands at other park areas.241 It is critical, therefore, that the DOI adhere to a strict interpretation of enabling acts and its own existing regulatory practice regarding takings.242 Categorizing and regulating these takings as consumptive activities comports with established System management practices and will help ensure the continued preservation of park resources.243 This approach should not be interpreted as completely precluding Native Americans from taking wildlife from the System for ceremonial use. However, if such activities are to be permitted, Congress, not the DOI, should provide for them.244

[*PG138]B.  An Examination of the DOI’s Foundation for Promulgating
the Wupatki Regulation

The proposed regulation states that it allows only Hopi tribe members with valid BGEPA permits to take golden eagle hatchlings, and that Wupatki is the only national park at which such takings may occur.245 In the supplementary material accompanying the proposed regulation, the DOI argues that constitutional considerations, and statutes, court decisions, and executive orders provide a reasonable foundation for promulgating the regulation.246 A need to accommodate Native American religious practices serves as a common thread running through these foundations.247 However, when closely examined, each basis for the proposal falls short of directly and specifically providing for ceremonial takings from park areas.

1.  Constitutional Considerations and Court Decisions

The DOI acknowledges that the First Amendment’s provision for the free exercise of religion is not a sufficient basis to require the NPS to allow Native Americans or others to take park system resources for religious ceremonial purposes.248 Nonetheless, the DOI justifies accommodatingt the Hopi members’ collection of golden eagle hatchlings from Wupatki because the current state of System regulation impedes access to golden eagles—a species central to Hopi religious practices.249 The DOI recognizes the impediment imposed by the current state of regulations, and thus the DOI should facilitate the Hopi’s procurement of golden eagles.250 From this, it may be inferred that the proposed regulation is a corrective measure.251 However, because no unconstitutional impediment to the Hopi’s free exercise of religion currently exists, this reasoning is internally inconsistent.

The DOI fails to consider, in more than a cursory manner, the fact that Congress has already accommodated the Hopi’s need to procure golden eagles through the BGEPA, but that Congress has not provided for the taking of golden eagles from park areas.252 Court de[*PG139]cisions in Jim and Hugs upheld the provisions and restrictions of the BGEPA stating that, even under a strict RFRA test, the compelling government interest in protecting golden eagles justifies the substantial burden on the free exercise of Native American religion.253 Given the extent and reasoned limit of legislation regarding the taking of golden eagles, the DOI’s assertion of a need for further accommodation of the Hopi has little force.

2.  Statutes and Court Decisions

The DOI asserts that RFRA encourages the promulgation of regulations that accommodate Native American religious practices.254 RFRA requires that federal actions substantially burdening religious practices may only further a compelling government interest by the “least restrictive means.”255 The DOI implicitly argues that the government interest at stake here, specifically the preservation of park system resources as articulated in the Organic Act, can be achieved in a less restrictive manner by making an exception to the general prohibition of consumptive takings for the Hopi.256 However, this argument is strikingly similar to the argument rejected by the Supreme Court in Smith.257 In Smith, Justice Scalia vehemently opposed the creation of religion-specific exceptions to generally applicable laws.258 A special regulation for Wupatki creating a religion-specific exception to the general prohibition against activities that deplete park resources would be the functional equivalent of the failed arguments of the terminated employees in Smith—that their religion should exempt them from laws criminalizing peyote consumption.259 Thus, the DOI should not base the reasonableness of its proposal, at least in part, on the premise that “RFRA encourages, and does not prohibit, such accommodation,” because the argument this implies has already failed in the Supreme Court.260

The DOI also mentions that the American Indian Religious Freedom Act (AIRFA) illustrates a policy of considering Native [*PG140]American religious concerns when promulgating regulations.261 Arguably, AIRFA provides justification for regulations addressing those concerns, and it can be employed to bolster the reasonableness of the DOI’s proposed regulation.262 However, AIRFA does not create any justiciable rights.263 As stated by Representative Morris Udall (D-AZ), co-sponsor of the bill, AIRFA does not supersede laws governing the management of federal lands.264 Thus, AIRFA cannot be relied upon as a foundation for promulgating a regulation that would supersede the proscription of removing wildlife from park areas.

3.  Executive Orders

Similarly, the DOI relies on policy statements articulated in executive orders to establish the reasonableness of the proposal.265 Most significantly, the DOI cites former President Clinton’s 1998 executive order directing agencies to consider, “to the extent practicable and permitted by law,” applications by Native Americans for waiver of federal statutes and regulations.266 The DOI argues that this order speaks directly to situations such as that at Wupatki.267 However, while President Clinton’s executive orders encapsulate general policy statements, they do not override existing laws.268 The current statutes and regulations, as articulated above, prohibit the removal of golden eagles from Wupatki for reasons other than park area administration.269 Therefore, where the DOI could not grant a waiver to violate federal laws, it follows that they should not be able to promulgate a narrowly-tailored regulation that seeks to end-run the same laws.

In sum, none of the DOI’s arguments provide an adequate foundation for the promulgation of the proposed regulation. While the DOI should be commended for recognizing the burden that current laws and regulations have on Native American religious practices, the proposed regulation is not the proper way to address this situation. Further, where the legal bases are tenuous, the DOI should not [*PG141]promulgate a regulation that will open a park area to a generally prohibited activity. Rather, Congress should directly and specifically provide for ceremonial takings.


Since its inception in 1916, the NPS has been charged with the preservation of natural and historical objects and wildlife throughout the National Park System.270 Today, the System has grown to encompass a wide variety of park areas, including units of natural, historical, and cultural significance. Because of the complexity of the System, a ‘one size fits all’ approach is obviously impractical. However, experience has shown that general uniformity in regulation is necessary to avoid an unmanageable proliferation of park-by-park regulations. Through amendments to the Organic Act, Congress has attempted to achieve a balance between uniformity and the specific needs of individual parks.271 Thus, the DOI, on its own initiative, must not circumvent the strictures of the Organic Act’s fundamental purpose: “to conserve the scenery and the natural and historical objects and the wild life therein . . . .”272

The DOI should not promulgate a special regulation allowing the Hopi to gather golden eagle hatchlings at Wupatki because, without a direct and specific provision by Congress, they lack the authority to do so. Congress included an exception to the prohibitions of the BGEPA for Native Americans to obtain permits to take eagles, but it has not stated that the permits override laws and regulations prohibiting consumptive takings from park areas.273 Congress and the White House have also sought to accommodate Native American religious practices through other legislation, orders, and proclamations. Each of these are important steps in addressing the needs of Native Americans seeking to preserve their heritage. However, each falls short of the type of provision necessary to allow the consumptive activity contemplated by the proposal. For the DOI to allow the Hopi to gather golden eagle hatchlings from Wupatki—or for any people to take park resources for religious purposes from a park area where consumptive takings are not permitted—Congress must first directly and specifically provide for the DOI to regulate the activity.

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