United States v. Abeyta, Crim. No. 85-79-JB.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtS. James Anaya, Albuquerque, N.M., for defendant
Citation632 F. Supp. 1301
PartiesUNITED STATES of America, Plaintiff, v. Jose I. ABEYTA, Defendant.
Decision Date09 April 1986
Docket NumberCrim. No. 85-79-JB.

632 F. Supp. 1301

UNITED STATES of America, Plaintiff,
v.
Jose I. ABEYTA, Defendant.

Crim. No. 85-79-JB.

United States District Court, D. New Mexico.

April 9, 1986.


632 F. Supp. 1302

Jennifer A. Salisbury, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff.

S. James Anaya, Albuquerque, N.M., for defendant.

MEMORANDUM OPINION

BURCIAGA, District Judge.

THIS CASE requires the court to consider competing claims to a treasured bird, the eagle: the claim of the American people to the eagle as the symbol of their national unity, strength, and purpose, and the claim of the Indian people of the New Mexico pueblos to the eagle as the overseer of human life and the messenger to the spirit world. In this action, the government's legitimate cultural and conservation interests in the eagle are in conflict with the eagle's veneration as a religious symbol. For the reasons set out in this opinion, the court concludes that the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668, does not apply to the taking solely for religious purposes of a golden eagle within the exterior boundaries of the Isleta Pueblo. The government's action against the defendant for killing a golden eagle for use of its feathers in a religious ceremony therefore must be dismissed.

I. INTRODUCTION

On January 4, 1985, an investigative officer of the Department of the Interior filed with the court a violation notice charging the defendant Jose I. Abeyta (Abeyta) with knowing possession of parts of a golden eagle without a permit in violation of the Bald and Golden Eagle Protection Act, 16 U.S.C. § 668. On May 14, 1985, Abeyta filed a motion to dismiss the action for the reason that the act does not apply to him. This is so, he contends, because of protections afforded to him under the Treaty of Guadalupe Hidalgo, 9 Stat. 922 (1848). Even if this were not so, Abeyta maintains, application of the act to him under the circumstances presented by this case would be in derogation of his right, secured by the first amendment to the United States Constitution, to exercise his religion freely. Both the government and Abeyta have briefed the facts and the law extensively and on August 9, 1985 the court held an evidentiary hearing on issues presented.

For the reasons set out in this opinion, the court concludes that the act does not apply to Abeyta. Were this not so, prosecution of Abeyta for the acts here alleged, under all the circumstances here presented, would unlawfully constrain Abeyta's free exercise of his religion. Accordingly, Abeyta's motion to dismiss the action against him will be granted.

II. FACTS

In 1940, Congress passed the Eagle Protection Act, 16 U.S.C. § 668 et seq., prohibiting the knowing possession or sale of any bald eagle, alive or dead, or any part, nest, or egg of the protected birds. The act was amended in 1962 to extend its protection to golden eagles and was further amended in 1972 to increase the punishment for violations and to reduce the degree of knowledge required for conviction.

The 1962 amendments to the act also authorized the Secretary of the Interior to permit, when permission is compatible with preservation of the protected birds, the taking of eagles for various reasons including "for the religious purposes of Indian

632 F. Supp. 1303
tribes." 16 U.S.C. § 668a. In furtherance of this provision, the Secretary has promulgated regulations controlling the taking of eagles for religious purposes. 50 C.F.R. § 22.22 (1984). The regulations establish a labyrinthine application procedure by which individual Indians may apply for permits to take or possess eagle parts for ceremonial use. As part of the Secretary's administrative apparatus, the United States Fish and Wildlife Service has established at Pocatello, Idaho a depository for eagle parts and feathers. Applications from Indians for feathers for ceremonial use are, in theory, to be filled from the depository. No eagles are harvested for their parts or feathers. Indeed, no application to kill or otherwise harm a golden eagle has ever been granted. The inventory at the depository is constituted of carcasses of eagles that were killed by accident or that died of natural causes

Abeyta is a lifelong resident and member of Isleta Pueblo. The pueblo stands within the lands conveyed to the United States under the Treaty of Guadalupe Hidalgo. Abeyta is also a member of the Katsina Society, an independent and sometimes secretive religious society that engages in traditional ceremonial practices deeply rooted in ancient pueblo religion. The tradition and lore of the Katsina Society, like others of its kind, require the ceremonial use of eagle feathers and parts.

In its ritual and reverent use of eagles and their feathers in religious ceremony, the Katsina Society is indistinguishable from myriad pueblo religious fellowships. The central tenets of ancient Indian religious faith are shared among New Mexico's pueblos and, of all birds, the eagle holds an exalted position in all pueblo religious societies. The use of their feathers, particularly from the tail and wings, is indispensable to the ceremonies of the Katsina Society and other pueblo rituals.

The ceremonial use of the feathers is especially important at the winter solstice. Then, the Katsina, or spirit of life, and the eagle, the embodiment of the overseer of life, are the central forces in pueblo religious belief. The eagle is the primary messenger to the spirit world and the ceremonial use of its feathers permits the living to communicate with the spirit world beyond. At the solstice, a fresh set of eagle feathers, including those from the tail, is required to finish costumes used in the Katsina solstice ritual. For the Katsina Society at Isleta Pueblo, it is of religious significance that these feathers be of a bird taken from aboriginal Isleta lands. Without such feathers, the religious purposes of the solstice ceremonies are defeated and a cardinal sacrament of the Isleta people is forfeited.

On or about January 4, 1985, Abeyta killed a golden eagle upon the aboriginal lands and within the exterior boundaries of the Isleta Pueblo, about five miles east of the central Isleta village. Abeyta's sole purpose in killing the eagle was to procure its feathers for use of them in the religious ceremonies of the Katsina Society.

Abeyta did not avail himself of the procedures established by the Secretary to procure feathers for ceremonial purposes. In any event, it would not have been fruitful for him to have done so. The federal eagle depository established and operated by the Fish and Wildlife Service does not effectively fulfill the pueblos' need for eagle feathers for ceremonial use. The life span of the golden eagle is 15 to 20 years. Each breeding pair, of which there are currently approximately 150 in New Mexico, produces an average of one young per year. Few golden eagles die of natural causes each year and, although some die of unnatural causes such as trapping, poisoning, electrocution, shootings, collision with power lines, and loss of habitat, there are nevertheless insufficient carcasses to meet the religious needs of the pueblo societies. Thus, the depository takes 18 months to two years to fill requests from the pueblos for carcasses, tail feathers, and full sets of wing feathers for ceremonial use. As of August, 1985 there were 527 pending applications for eagle feathers or parts, nationwide. Of these, 55 percent, or 274, were pending in Fish and Wildlife Service Region II which comprises New Mexico, Arizona,

632 F. Supp. 1304
Texas, and Oklahoma. Four of these pending applications were from members of Isleta Pueblo. It is clear that the depository does not provide applicants with fresh feathers annually for the solstice ceremonies. Despite the shortage, federal authorities have never issued a permit to kill a golden eagle for Indian religious purposes in New Mexico or anywhere else

Moreover, the intricate application procedure, as it currently operates, is itself unnecessarily intrusive and hostile to religious privacy when viewed in light of the conservation goals it seeks to achieve. The applicant must certify that he is an Indian and will use the feathers or parts for religious purposes. He must identify religious leaders and ceremonies to federal officials so that the government may gauge the religious character of the proposed use. These procedures invade the private, even secret, province of Indian religious conviction and...

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12 practice notes
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...exempting Native Americans from the Act's regulations would have threatened the eagle population. But see United States v. Abeyta, 632 F.Supp. 1301 (D.N.M.1986) (criminal prosecution of Native American under Bald Eagle Protection Act subject to free exercise challenge because less burdensom......
  • U.S. v. Hardman, No. 99-4210.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 5, 2002
    ...the compelling nature of the government's interest. This view finds some limited support in the case law. United States v. Abeyta, 632 F.Supp. 1301, 1307 (D.N.M.1986) (finding that the record did not support a compelling interest in golden eagle preservation); cf. Horen v. Commonwealth, 23 ......
  • U.S. v. Tawahongva, No. 06 MJ 4013 PCT MEA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • September 11, 2006
    ...to that court, that the government does not have a compelling interest in protecting golden eagles. See United States v. Abeyta, 632 F.Supp. 1301, 1306 (D.N.M.1986). The Court notes this decision was issued in 1986 and that every federal court which has subsequently considered this issue, i......
  • Havasupai Tribe v. US, No. Civ. 88-971 PHX-RGS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • April 18, 1990
    ...Treaty") on February 2, 1848 ceasing hostilities between the two nations. 9 Stat. 922 (1848). Relying on United States v. Abeyta, 632 F.Supp. 1301 (D.N.M.1986), plaintiffs contend that this Treaty secures them the religious right of access to the Canyon Mine site. Article IX of the Tre......
  • Request a trial to view additional results
12 cases
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...exempting Native Americans from the Act's regulations would have threatened the eagle population. But see United States v. Abeyta, 632 F.Supp. 1301 (D.N.M.1986) (criminal prosecution of Native American under Bald Eagle Protection Act subject to free exercise challenge because less burdensom......
  • U.S. v. Hardman, No. 99-4210.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • August 5, 2002
    ...the compelling nature of the government's interest. This view finds some limited support in the case law. United States v. Abeyta, 632 F.Supp. 1301, 1307 (D.N.M.1986) (finding that the record did not support a compelling interest in golden eagle preservation); cf. Horen v. Commonwealth, 23 ......
  • U.S. v. Tawahongva, No. 06 MJ 4013 PCT MEA.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • September 11, 2006
    ...to that court, that the government does not have a compelling interest in protecting golden eagles. See United States v. Abeyta, 632 F.Supp. 1301, 1306 (D.N.M.1986). The Court notes this decision was issued in 1986 and that every federal court which has subsequently considered this issue, i......
  • Havasupai Tribe v. US, No. Civ. 88-971 PHX-RGS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • April 18, 1990
    ...("the Treaty") on February 2, 1848 ceasing hostilities between the two nations. 9 Stat. 922 (1848). Relying on United States v. Abeyta, 632 F.Supp. 1301 (D.N.M.1986), plaintiffs contend that this Treaty secures them the religious right of access to the Canyon Mine site. Article IX of the Tr......
  • Request a trial to view additional results

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