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Court Rejects Free Exercise Defense To Bald Eagle Act Prosecution

By Howard M. Friedman

In United States v. Bertucci, 2009 U.S. Dist. LEXIS 119228 (D NE, Dec. 22, 2009), a Nebraska federal district court accepted the recommendations of a federal magistrate (2009 U.S. Dist. LEXIS 119230, Nov. 25, 2009) and denied a motion to dismiss charges under the Bald and Golden Eagle Protection Act that had been brought against defendant. Defendant, a member of the Omaha Tribe and the Native American Church, claimed that the charges violated his free exercise rights under the Religious Freedom Restoration Act. Without a permit, he killed two bald eagles to use in a feathering ceremony for his children that he wished to conduct while his grandfather was still alive. Eagle parts are available to members of recognized tribes from the National Eagle Repository. The court held:

[T]he repository and permit processes, while arguably inconvenient, do not impose a substantial burden on the defendant's right to practice his religion. The evidence established that a tribal member would have to wait ninety days to six months for delivery of feathers from the repository. This moderate delay does not deny the defendant a reasonable opportunity to practice his religion. Alternatively, the court finds that even if the Eagle Protection Act imposed a substantial burden, the government has met its burden to show that the repository and permit process are the least restrictive means to further the government's compelling interest in protecting and preserving the bald eagle population.

Full post as published by Religion Clause on December 26, 2009 (boomark / email).