Us v. Hardman, 10

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Docket Number99-4210,10
Decision Date08 August 2001

UNITED STATES OF AMERICA, Plaintiff - Appellee,

No. 99-4210


August 8, 2001


(D. Ct. No. 99-CR-166-B)

Cindy Barton-Coombs, Roosevelt, Utah, appearing for Appellant.

Christopher B. Chaney, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the brief), Office of the United States Attorney, Salt Lake City, Utah, appearing for Appellee.

Tod J. Smith, Whiteing & Smith, Boulder, Colorado, and Robert S. Thompson, III, Office of the General Counsel, Ute Indian Tribe, Fort Duchesne, Utah, filed an amicus curiae brief for the Ute Indian Tribe of the Uintah and Ouray Reservation.

Before TACHA, Chief Judge, McKAY, and HENRY, Circuit Judges.

TACHA, Circuit Judge.

Appellant Raymond Hardman appeals his conviction for violating the Migratory Bird Treaty Act. Mr. Hardman alleges that the Act violates the First Amendment; that the Act is enforced in a discriminatory fashion in violation of his equal protection rights; and that the tribal authority citing Mr. Hardman for violating the Act had no jurisdiction to do so. We exercise jurisdiction pursuant to 28 U.S.C. 1291 and AFFIRM.


Mr. Hardman has been a practitioner of a Native American religion for many years. He resides on fee land in Neola, Utah that lies within the boundaries of the Uintah and Ouray Ute Reservation. Though Mr. Hardman is not of Native American descent, his ex-wife and two children are. Further, his ex-wife and children are enrolled members of the S'Kallum Tribe, a federally recognized tribe located in Washington State.

In 1993, when Mr. Hardman was still married to and living with his ex-wife, his son's godfather died. Subsequently, Mr. Hardman transported the body to Arizona so that appropriate religious services could be performed. As a part of the religious cleansing ritual, a Hopi tribal religious leader gave Mr. Hardman a bundle of prayer feathers--which included golden eagle feathers--to be kept in the truck that had transported the deceased body. After returning to his home, Mr. Hardman contacted the Utah Division of Wildlife Resources in order to obtain a permit to possess the feathers. However, he was informed that he would not be allowed to apply as he was not a member of a federally recognized tribe.

Years later, when Mr. Hardman and his wife were separated, Ute tribal officers were informed by Mr. Hardman's estranged wife that he possessed golden eagle feathers without a permit. On September 24, 1996, Ute tribal fish and game officer Cleveland Murray went to Mr. Hardman's home and demanded the surrender of the eagle feathers. In addition to being a tribal officer, Officer Murray was a cross-commissioned federal law enforcement officer acting under the authority of the United States Bureau of Indian Affairs. Under protest, Mr. Hardman surrendered the eagle feathers, which were hanging from the rear view mirror of his truck.

On March 10, 1997, Mr. Hardman was issued a federal violation notice for possessing golden eagle feathers without a permit in violation of the Migratory Bird Treaty Act, 16 U.S.C. 703. On February 25, 1999, a bench trial was held before a magistrate judge. Mr. Hardman was found guilty of violating the Migratory Bird Treaty Act and sentenced to pay a small fine. Mr. Hardman appealed to the district court where his conviction was affirmed. This appeal followed.II.

We review questions of constitutional law de novo. United States v. Wynne, 993 F.2d 760, 764 (10th Cir. 1993). The extent of a federally authorized law enforcement officer's jurisdiction presents a question of law which we review de novo. See United States v. Hill, 197 F.3d 436, 445 (10th Cir. 1999).


Before reaching the merits of Mr. Hardman's claims, we must first consider whether he has standing to make them. The government asserts that Mr. Hardman has no standing because he never actually applied for a permit.(FN1) Several courts have addressed this question finding that, where an individual never actually applied for a permit, he cannot thereafter complain that the permitting process harmed his constitutional rights. See, e.g., United States v. Lundquist, 932 F. Supp. 1237, 1242 n.5 (D. Or. 1996). In this case, however, while Mr. Hardman did not technically apply, he did make a good faith effort to do so, and he was rebuffed in exactly the same manner he would have been had he actually applied. This is sufficient to establish standing.


The religion clause of the First Amendment to the Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Mr. Hardman challenges his conviction under both the Establishment Clause and the Free Exercise Clause of the First Amendment. We first consider Mr. Hardman's free exercise claim and then turn to his Establishment Clause claim.


The Migratory Bird Treaty Act makes it illegal for any person to "possess . . . any migratory bird, any part, nest, or egg of any such bird" except "as permitted by regulations made as hereinafter provided." 16 U.S.C. 703. The Act was passed for the purpose of fulfilling our treaty obligations to Great Britain and other nations and to protect migratory birds. See Andrus v. Allard, 444 U.S. 51, 52-53, 60 n.11 (1979). To that end, regulations were promulgated as provided by the Act. See generally 50 C.F.R. 10-24. The golden eagle is defined by those regulations as a migratory bird protected by the Act. 50 C.F.R. 10.13. Further, the regulations set forth circumstances wherein a permit for the lawful possession of a migratory bird or part thereof may be obtained.

Specifically, 50 C.F.R. 22.22 provides that "a permit authorizing the . . . possession . . . of lawfully acquired bald eagles or golden eagles, or their parts, nests, or eggs for Indian religious use" may be issued if certain criteria are met. In order to obtain a permit under this provision, an individual must be an enrolled member of a federally recognized tribe and must show that the eagles or parts are used for a tribally authorized and bona fide religious ceremony. Thus, the statute and regulations at issue in this case are laws of general applicability, promulgated for secular purposes, but contain a religious accommodation in favor of persons meeting two distinct qualifying criteria: (1) that the person be an actual practitioner of a bona fide Native American religion requiring the use of migratory bird feathers, and (2) that the person be a member of a certain political classification, i.e., a member of a federally recognized tribe.(FN2) 50 C.F.R. 22.22 ("We will issue a permit only to members of Indian entities recognized and eligible to receive services from the United States Bureau of Indian Affairs listed under 25 U.S.C. 479a-1 engaged in religious activities."). Mr. Hardman contends that both of the qualifying criteria for religious accommodation contained in 50 C.F.R. 22.22 are subject to strict scrutiny, and further, that neither can meet that test.


The question arises whether we should apply the standard of review set forth by Congress in the Religious Freedom and Restoration Act ("RFRA") to Mr. Hardman's First Amendment claims even though he has not raised RFRA, either in the district court or on appeal. The essential requirement of RFRA is that: "Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." 42 U.S.C. 2000bb-1(b). RFRA was intended by Congress to overturn the Supreme Court's interpretation of the Free Exercise Clause of the First Amendment as set forth in Employment Division v. Smith, 494 U.S. 872 (1990). However, the Court, in City of Boerne v. Flores, 521 U.S. 507 (1997), held that Congress lacked such authority. To hold otherwise would have allowed Congress to "determine what constitutes a constitutional violation." Id. at 519.

After City of Boerne, it remained an open question whether RFRA created an extra-constitutional statutory claim against the federal government. Recently, we have answered that question in the affirmative. Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001) (holding that Congress had the authority to craft an extra-constitutional protection for religious freedom applicable to the federal government and that RFRA thus created a valid statutory "standard for suits against the federal government"). Thus, a RFRA claim for relief from federal burdening of religion is clearly distinct from a First Amendment claim for identical relief. A constitutional free exercise claim against the federal government remains subject to Smith, while a statutory RFRA claim against the federal government is exempt from Smith and governed wholly by the dictates of RFRA itself.

It is a long-standing rule of appellate law that "new claims may not be considered for the first time on appeal." Four Sons Bakery, Inc. v. Dulman, 542 F.2d 829, 833 (10th Cir. 1976). While the appellate court retains the discretion to consider new claims or issues on appeal in unusual circumstances or where clear injustice would otherwise result, we have rarely done so. Likewise, this case presents no unusual circumstances that would justify our departure from the general rule. Were we to apply RFRA to Mr. Hardman's exclusively constitutional claim we would be significantly altering the issues he seeks to have decided. RFRA is a statutory claim and is not relevant in the context of Mr. Hardman's First Amendment claims. We will not transform his constitutional claim into a statutory one. Mr...

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