Bald and Golden Eagle Protection Act
Rebecca F. Wisch (2002)
In 1940, Congress passed a law to protect our national symbol, the Bald Eagle. This act, called the Bald and Golden Eagle Protection Act, made it illegal to possess, sell, hunt, or even offer to sell, hunt or possess bald eagles. This includes not only living eagles, but also their feathers, nests, eggs, or body parts. The act allows a person to possess or transport eagles or eagle parts obtained before the act was established (1940). A farmer or rancher who leases land from the United States for grazing livestock can also lose his or her lease with the government. Under the Act, a person can face criminal prosecution or a civil penalty (a fine). The act was amended, or changed, in 1972 to increase the penalty a person will face for violating the Act. Under the criminal penalty portion, a person convicted of violating the Act can be fined up to $5,000 or imprisoned up to a year, or both can occur. If a person is convicted for two violations under the act, he or she can face an enhanced penalty of up to $10,000 or imprisonment up to two years, or both. If a person is convicted, up to $2,500 will be paid to the person who gave the information that led to the conviction. A Department of the Interior employee who is authorized to do so may arrest anyone who is seen violating the Act without a warrant. Any eagles or eagle parts that are seized as the result of arrest will be forfeited, or taken, by the government. This also includes anything used to possess or trap the birds, including vehicles used in the process. The act was amended in 1962 to include the related species of golden eagle. This was done in part to protect the dwindling population of golden eagles as well as to protect the bald eagle itself, since bald and golden eagles are difficult to distinguish in the wild. In addition to adding the golden eagle, Congress also created an exception in the statute to allow people to obtain eagles or their parts for zoos, exhibitions or Native American religious purposes. A person must first apply for a permit before permission will be given to possess eagle parts. This last part has created the most controversy. The eagle is a central figure in many Native American religions. As a result of this change, Native Americans now had to apply for a permit to obtain eagle parts or feathers to use in their religious rituals. Courts are now faced with deciding whether this violates a person’s free exercise of religion.
Overview of the Bald and Golden Eagle Protection Act
Rebecca F. Wisch (2002)
The Bald and Golden Eagle Protection Act makes it illegal to possess or sell an eagle or any part of an eagle (i.e., feathers, talons, eggs, or nests). [the statute prohibits "taking" of an eagle which includes killing, harassing, disturbing, or even poisoning an eagle] In 1940, Congress enacted the statue in response to declining numbers of bald eagles due to hunting and habitat encroachment. [Congress enacted the BGEPA in 1940 after the decline was first observed in the 1930’s] Faced with the prospect of the extinction of the national symbol, Congress specifically sought to protect this national treasure. Any form of taking or killing an eagle would subject an individual to criminal prosecution and civil penalties.
The Eagle Protection Act prohibits any commerce in eagles or their parts, regardless of when the birds were originally taken. [the U.S. Supreme Court held that the plain language of the statute and legislative history is clear on the prohibition] While the statute provides a narrow exception for the possession and transportation of eagles or eagle parts obtained before 1940 when the statute was enacted, this does not extend to the sale of those parts [the sale of eagle parts will negate a religious challenge to the act] . Not only does legislative history demonstrate a strict prohibition on the sale of eagle parts, but the danger a commercial incentive would place upon the species’ survival has uniformly silenced any challenges to the statute based on the sale of eagles.
In 1962, Congress extended the protection under the statute to include the related golden eagle. This was done in part to curb population pressures on golden eagles and to limit the destruction of the bald eagle, which is often mistaken for a golden eagle when it is immature. [Congress heard testimony that the bald eagle and golden eagle are relatively indistinguishable in the first few years of life] In addition to expanding the protection to golden eagles, Congress also added a provision that allows eagles to be taken for scientific, exhibition, or religious purposes of Indian tribes. The last exception has created the most controversy within the law.
Initially, the religious use of eagle parts by Native Americans resulted in a challenge to the BGEPA based on whether the Act modified the rights Native Americans to hunt eagles on their tribal lands. [initially, courts were divided on whether the Act modified treaty rights since the Act did not explicitly say whether it did] The BGEPA does not specifically state whether it abrogates, or modifies those treaty-based hunting rights. However, in 1986, the U.S. Supreme Court resolved any confusion on this issue by ruling that the BGEPA modified those treaty rights such that no one is allowed to take eagles absent a permit. As a result of this holding, the legal challenges by Native Americans shifted from arguments based on treaty rights to the exercise of religious freedoms.
Native Americans use eagles in religious ceremonies and, in fact, eagles play a central role in Native American religions. Thus, Congress crafted an exception to the prohibition on possession of eagles for Native Americans. In order to possess eagles for Indian religious purposes, a Native American religious practitioner must first obtain a permit. According to the Federal Regulations, only a member of a federally recognized tribe can obtain a permit for eagles to use in religious ceremonies. [in order to raise a challenge to the permit process, a Native American must usually apply for a permit first] Applicants must list the name of the tribe associated, [non-Native Americans have routinely been denied the right to obtain eagle parts through the permit system] the species and number of eagles needed, a certification of enrollment in a tribe, among other things. [a federal regulation lists the permit requirements] Courts have recognized that the process does burden the religious practices of Native Americans and those who practice Indian religions. However, most courts agree that the government’s interest in conserving eagles and protecting the limited supply of eagle parts for recognized Native Americans provides a compelling reason to deny access to eagle parts without a valid permit. [courts have stated that the permit system is the best way to protect the eagle and provide access to Native Americans who need the eagle in cultural or religious practices]
When the statute was again amended in 1972, the court increased the penalties under the statute and created enhanced penalties for second or subsequent convictions [second conviction within same proceeding is sufficient to trigger the enhanced penalty provision]. The amendment also reduced the required intent under statute, from willful possession to "knowingly" or, "with wanton disregard for the consequences." This essentially means that a person must have knowledge that what he or she is doing could result in a violation of law, or at least is reckless in his or her actions that lead to the death of an eagle. [the Eagle Act is not a strict liability law; there must be some intent on the part of the person taking the eagle]. The penalty for taking an eagle now stands at a fine of not more than $5,000 or imprisonment for not more than one year for a first conviction or both, and a fine of not more than $10,000 or imprisonment for not more than two years or both for a second violation or conviction. Interestingly, the statute provides a reporting incentive, such that up to $2,500 shall be paid to the person giving information that leads to a conviction. The civil penalty involves a potential $5,000 fine for each violation under the Act as well as cancellation of grazing agreements with the United States. [the cancellation of grazing agreements is considered a collateral, or secondary penalty]
In 1994, President Clinton issued an executive order that recognized the administrative delays and difficulties in obtaining eagle parts from the federal repository. President Clinton urged the relevant agencies to streamline the application process and continue the effort to obtain eagle parts to distribute to Native Americans. [Clinton’s order is said to reflect a change in the executive branch’s treatment of Indian issues] This order reflects an understanding of the importance of the eagle to Native American religions. Courts continue to grapple with this issue on how best to preserve the species and uphold the fundamental practices of sacred religions.
The eagle is also protected under the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA). [the MBTA protects migratory birds] [the ESA protects those species listed as threatened or endangered] Recent proposals to remove the eagle from the list of threatened species under the Endangered Species Act have been suggested. However, at this time, the eagle still remains protected as a threatened species in the lower 48 states. Notably, a person illegally possessing an eagle may be prosecuted under either the BGEPA or the MBTA. [there is nothing in either the MBTA or the BGEPA that requires prosecutors to bring a charge under one statute over the other] . Ironically, it is the eagle’s success story that may soon result in its lessened protection under law.