US v. Jim

• Decision Date: 13 March 1995
• Docket Number: No. CR 92-87-RE.,CR 92-87-RE.
• Citation: 888 F. Supp. 1058
• Parties: UNITED STATES of America, Plaintiff, v. Nathan S. JIM, Jr., Defendant.
• Court: U.S. District Court — District of Oregon

888 F. Supp. 1058

UNITED STATES of America, Plaintiff, v. Nathan S. JIM, Jr., Defendant.

No. CR 92-87-RE.

United States District Court, D. Oregon.

March 13, 1995.

Kristine Olson Rogers, U.S. Atty., D. Or., Robert B. Ross, Asst. U.S. Atty., Portland, OR, Joseph R. Perella, Wildlife & Marine Resources Section, Environment & Natural Resources Div., U.S. Dept. of Justice, Washington, DC, for U.S.

Celeste C. Whitewolf, Portland, OR, for Nathan S. Jim, Jr.

OPINION

REDDEN, District Judge:

The Ninth Circuit Court of Appeals remanded this case for consideration of Nathan S. Jim, Jr.'s religious freedom claim under the newly enacted Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-2000bb-4 (1993). An evidentiary hearing was held on October 20 and 21, 1994, and briefing was completed on February 17, 1995.

PROCEDURAL BACKGROUND

In December 1992, Jim was arrested for killing two golden and two bald eagles in eastern Oregon. Following this court's denial of his motion to dismiss under the test set forth by the Supreme Court in Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), Jim pled guilty to violating the Bald and Golden Eagle Protection Act (BGEPA), 16 U.S.C. § 668(a) (1988) and the Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1543 (1988).

After Jim's plea, Congress passed RFRA, restoring the compelling interest test that had been applied by the Court before Smith. In this case, the government does not contest that RFRA can be applied retroactively. The purpose of this remand is to consider whether prosecution of Jim violates RFRA.

FACTUAL BACKGROUND

Jim, an enrolled member of the federally recognized Confederated Tribes and Bands of the Yakama Nation, has been arrested twice for killing bald and golden eagles. In 1990, Jim was arrested for killing seven golden eagles. In both instances, Jim told law enforcement officials that he killed the birds for religious purposes.

Jim is a practitioner of three religions: Washaat, Feather (Was-lick-i) and the First Native American Church. Jim Affidavit, 2. Uncontradicted testimony at the hearing revealed that the use of eagle feathers and parts (e.g. wing bones) is necessary for the practice of these religions. See Testimony of Wilson Bob Wewa, Jr., Robert Olney, Nathan Jim, Jr. and Prosanna Williams.

At the hearing, Jim testified that he killed the eagles in 1992 to fulfill the request of his religious elders to obtain eagle feathers for burial use. Tr. 90-92, 133. He needed "clean" birds that had not been electrocuted, poisoned or "contaminated," and that had been "gathered by someone who asked for their lives." Id. at 92. To Jim, killing eagles is a religious ceremony involving prayer. Id. at 92-93. He later admitted that any eagle can be used for religious purposes, but he reaffirmed that killing eagles is a religious ceremony. Id. at 115-116. Jim testified that the Creator allows him to kill 12 eagles per year, enough to satisfy his elders' annual requests for burials. Id. at 133-34.

Each of the Indians who testified at the hearing agreed that eagle feathers are necessary for religious exercise and are in short supply. Unlike Jim, however, Wilson Bob Wewa's religious practices do not require the killing of eagles, nor do they require "clean" eagles. Id. at 35. To him, feathers from an eagle that has been electrocuted or poisoned can be used, but greater care and prayer is required to bless the feathers for religious use. Id. at 35-36, 162. As Wewa testified, cleaning "unclean" feathers can lead to greater blessing from the Creator because of the time and energy sacrificed in cleaning. Id. at 36.

Wewa criticized Jim's killing of four eagles as "wanton destruction which is against the principle of the Creator to have reverence for all living things." Id. at 48. Wewa believes that the killing of four eagles is inconsistent with a religious duty to be a steward of the Earth. Id. at 48-50.

STATUTORY FRAMEWORK

The BGEPA prohibits, among other things, taking or possessing bald or golden eagles without a permit. 16 U.S.C. § 668(a). The ESA also prohibits the possessing or taking of bald eagles, a threatened species in Oregon, without a permit. 16 U.S.C. § 1538(a); 50 C.F.R. §§ 17.41, 17.32, 17.21.

An Indian may receive golden or bald eagle carcasses, parts or feathers through a permit system run by the U.S. Fish and Wildlife Service (FWS). The permit application requires an Indian to list: the species and number of eagles requested; where the eagle will come from; name of tribe the applicant belongs to; name of the tribal religious ceremony; certification from the Bureau of Indian Affairs (BIA) of Indian status; and certification from the applicant's religious group that the applicant is authorized to participate in ceremonies.

The permit application is submitted to the FWS. There, it is reviewed for completeness. FWS does not make any inquiry into the religious certification, but merely confirms that it has been signed. On average, the Portland FWS reviews the application in 12.2 days. Tr. 285.

Next, the application is sent by the FWS to the BIA. The BIA confirms the applicant's status as an Indian. If the certification is not signed by the proper BIA official, the BIA sends the application to the appropriate official for signing. On average, the application remains with the BIA for 26.4 days. Id.

The application is then returned to the FWS. The FWS sends an order to the national eagle repository in Ashland, Oregon. Dead eagles are collected from FWS agents throughout the nation and sent to the repository. The director logs the requests on a first-come, first-served basis. On average, the repository fills requests for feathers in two weeks, for parts in six months to one year, and for carcasses in 18 months. Informally, the director will expedite "emergency" feather requests.

A permit to take a bald or golden eagle can only be issued if the FWS determines that the kill is "compatible with the eagle's preservation." 50 C.F.R. § 22.22(c)(1). According to the testimony of David McMullen, the District FWS Director, only the Director of FWS has the authority to grant such a permit.

DISCUSSION

With the enactment of RFRA, Congress intended that the courts apply pre-Smith case law in determining whether a statute interferes with free expression of religion. 42 U.S.C. §§ 2000bb(a)(5), (b)(1).

In determining whether the BGEPA or the ESA violates Jim's rights under RFRA, three elements are considered: whether the laws substantially interfere with Jim's free exercise of religious beliefs; whether the laws promote a compelling state interest; and the extent to which recognition of an exemption from the statute would impede the objectives that the state seeks to advance. Callahan v. Woods, 736 F.2d 1269, 1273-74 (9th Cir.1984). Jim bears the burden of establishing the first element, while the government bears the burden on the second and third elements.

1. Substantial Burden on Jim's Free Exercise

A. Standing

The government argues that Jim does not have standing because Jim's religious practice has not been burdened. Specifically, the government contends that Jim is not credible in claiming that he killed the eagles as a religious act to provide feathers to his elders.

Jim testified at the hearing that obtaining the birds for his elders and the act of shooting were religious practices. Prosanna Williams, an elder, testified that she would not have asked Jim specifically to "kill" eagles, but that she would have asked Jim to get her feathers. The testimony of Wewa and Williams established that obeying the requests of elders is fundamental in Indian religious practices.

While no other Indian testified that he or she personally believes that the act of shooting eagles is religious, Jim need not establish that his religious beliefs are shared with others. See Thomas v. Review Bd. of Indiana Empl. Sec. Div., 450 U.S. 707, 715-16, 101 S.Ct. 1425, 1430-31, 67 L.Ed.2d 624 (1981). Nonetheless, there is some corroboration of Jim's professed belief in the record. Robert Olney testified that there are religious ceremonies to kill eagles. Tr. 74-76.

While I agree with the government that Jim's testimony was, at times, contradictory and confused, I credit his claimed beliefs. The evidence is sufficient to establish that his religious practices — shooting eagles and providing eagles to his elders upon request — are at issue in this case.

2. Illegal Possession

Jim argues that he pled guilty to possessing, but not taking, eagles. I agree with the government that Jim pled guilty to illegally possessing eagles, which includes possessing eagles taken without a proper permit. 16 U.S.C. § 668(a); 16 U.S.C. § 1538(a)(1)(D); 50 C.F.R. § 17.21(d). He did not have a permit to take eagles. Therefore, his possession of illegally taken eagles was prohibited by the BGEPA and ESA.

3. Substantial Burden

The government argues that Jim's free exercise was merely inconvenienced and not substantially burdened by the law. It contends that Jim made no effort to determine if the permit system could accommodate his religious needs.

The government correctly notes that mere inconvenience is insufficient. Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir.1987), aff'd, 490 U.S. 680, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989). The laws must interfere with a tenet or belief that is central to religious doctrine. Id.

In United States v. Thirty-Eight Golden Eagles, 649 F.Supp. 269 (D.Nev.1986), aff'd, 829 F.2d 41 (9th Cir.1987), the court held that because eagle feathers hold such an exalted status within Indian religions, "any scheme which limits the access of the faithful to their talisman must be seen as having a profound effect on the exercise of religious belief." Id. at 276.

Thirty-Eight Golden Eagles is too broad. The particular facts of this case must be examined in light of the BGEPA and the ESA to determine if the law...