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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.

I.

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).

III.

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.⁽¹⁾ 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.

IV.

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.

A.

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.⁽²⁾ 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.

B.

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. Hardman has raised, briefed, and argued constitutional claims only and we are obligated to decide them as such. Were we to do otherwise, the very constitutional questions the parties have come to us to have answered would remain unresolved.

We have previously applied RFRA to a First Amendment claim even when it was not raised by the parties. Werner v. McCotter, 49 F.3d 1476 (10th Cir. 1995). However, in Werner, decided prior to City of Boerne, we were laboring under the false understanding that RFRA "legislatively overturned a number of recent Supreme Court [free exercise] decisions" and that it created a new rule of constitutional law. Id. at 1479. Thus, we concluded that because the language of RFRA made it applicable to "all cases where free exercise of religion is substantially burdened," 42 U.S.C. § 2000bb(b)(1), its standard ought to control a Free Exercise Clause claim even when not raised. Id. Because the Supreme Court has made it clear that the Werner court's assumptions about RFRA were faulty, its rationale is no longer convincing. Therefore, we decline to exercise our discretion in the same manner as it was exercised in Werner and will not consider the language or standard of RFRA in connection with Mr. Hardman's constitutional claims.

C.

As discussed above, in deciding any free exercise challenge we must begin with the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872 (1990). In Smith, the Court held that "the right to free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability." Id. at 879 (internal quotation marks omitted). The Smith Court allowed for two exceptions to its general rule. See infra, Section IV.C.1. Mr. Hardman, however, has not argued that either of the Smith exceptions apply to the permitting regulation. We therefore do not consider the Smith exceptions.

Mr. Hardman argues only that the permitting regulation is not neutral and cannot withstand strict scrutiny. The government, in turn, asserts that the permitting regulation is neutral. Further, it argues that even if the regulation is not neutral, the unique guardian-ward relationship between the government and Native American tribes prevents ordinary compliance with the dictates of the First Amendment, and thus the permitting regulation need only pass the "rational basis" test. Thus, in evaluating Mr. Hardman's free exercise claim, we are presented with a two-fold question⁽³⁾: first, in the generic sense, does a generally applicable law containing an accommodation for a specific religious group, to the exclusion of others, violate the Smith requirement of neutrality; and second, if such a law is non-neutral, does the fact that the accommodation is for a Native American religion trump the generic rule, thereby requiring only the application of the rational basis test, rather than strict scrutiny? We take up each question in turn, answering the first in the affirmative, infra, Section IV.C.2, and the second in the negative, infra, Section IV.C.3. In so doing, we distinguish the underlying purpose and function of the Free Exercise Clause from that of the Establishment Clause. Because we conclude that the free exercise right is an affirmative individual religious right to the unimpeded practice of religion and the antiestablishment right is primarily a negative civil right to a government free from religious entanglement, we conclude that a challenge under the Free Exercise Clause cannot always be resolved in the same manner as it might be under the Establishment Clause. Finally, we apply the strict scrutiny test set forth in Smith and conclude that the permitting provision is supported by a compelling government interest and is narrowly tailored to further that interest, infra, Section IV.C.4. First, however, it is appropriate to discuss briefly the history of First Amendment neutrality and the development of its application to free exercise claims in Supreme Court case law.⁽⁴⁾

1.

In 1655, Roger Williams, the founder of Rhode Island, penned perhaps the first concise expression of what we now know as the religion clauses of the First Amendment. In a letter to the town of Providence, R.I., he wrote:

It hath fallen out sometimes that both Papist and Protestants, Jews, and Turks may be embarked in one ship; upon which supposal I affirm that all the liberty of conscience that ever I pleaded for turns upon that two hinges--that none of the Papists, Protestants, Jews, or Turks be forced to come to the ship's prayers or worship, nor compelled from their own particular prayers or worship, if they practice any.

1 Stokes, Church and State in the United States 197 (1950). Ever since this dual formulation of protection for religion was codified in the First Amendment, it has been alternatively praised for its genius and damned for its vexing complications. In either case, the kind of separation of church and state embodied in the religion clauses of the First Amendment is central to the structure of ordered liberty upon which this nation was founded.⁽⁵⁾ John Locke thought it "above all things necessary to distinguish exactly the business of civil government from that of religion and to settle the just bounds that lie between the one and the other." John Locke, A Letter Concerning Toleration, quoted in Sch. Dist. v. Schempp, 374 U.S. 203, 231 (1963) (Brennan, J., concurring). However, finding the precise line and degree of "the just bounds" between religion and civil government has been "elusive," Schempp, 374 U.S. at 231 (Brennan, J., concurring), and a "most difficult and sensitive task, calling for the careful exercise of both judicial and public judgment and restraint," id. at 305 (Goldberg, J., concurring).

One of the central difficulties encountered by courts lies in the interrelationship between the two clauses. On the one hand, laws "respecting an establishment of religion" are prohibited; while on the other, laws "prohibiting the free exercise thereof" are equally unconstitutional. Herein lies the central paradox of the religion clauses: either clause, taken to its extreme, would tend to eviscerate the other. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 82 (1985) (O'Connor, J., concurring) ("It is obvious that either of the two Religion Clauses, 'if expanded to a logical extreme, would tend to clash with the other.'" (quoting Walz v. Tax Comm'n, 397 U.S. 664, 668-69 (1970))). Thus, early understandings of the Free Exercise Clause required so many government accommodations to religion that they "produced in the aggregate what may fairly be described as a de facto establishment of religion." Mark DeWolfe Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History 11 (1965).

The Supreme Court was confronted with this difficulty in Reynolds v. United States, 98 U.S. 145 (1878). There, the petitioner appealed his conviction for polygamy on the grounds that any prohibition against polygamy violated his free exercise right to practice the Mormon religion. Id. at 161-62. Quoting Jefferson's preamble to the Virginia Bill for Religious Freedom, the Court held that the Free Exercise Clause did not prohibit laws constraining "'overt acts against peace and good order.'" Id. at 163. The Court went on to declare: "[A]s a law of the organization of society . . . it is provided that plural marriages shall not be allowed. . . . To permit [a person to excuse practices contrary to law because of religious belief] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances." Id. at 166-67. Therefore, the Court recognized that strict application of free exercise principles would establish, by default, religious law above civil law. This general principle was again articulated by the Court in Cantwell v. Connecticut, 310 U.S. 296 (1940). There, the Court held that the First Amendment

embraces two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. . . . It is . . . clear that a state may by general and non-discriminatory legislation . . . safeguard the peace, good order and comfort of the community, without unconstitutionally invading the liberties protected by the [First Amendment through the] Fourteenth Amendment.

Id. at 303-04 (footnote omitted). Thus, the scope of free exercise of religion is limited by the general enforcement of valid, neutral laws.⁽⁶⁾

On the other hand, early antiestablishmentarians seeking to enforce strict antiestablishment rules ended up clashing with the free exercise protection. Jefferson, in his draft of the Virginia Constitution, opposed clergymen serving in the legislature.⁽⁷⁾ Virginia refused to allow the incorporation of Catholic churches for the purposes of receiving charitable gifts, again on antiestablishment grounds. Gallego v. Atty. Gen., 30 Va. 450 (1832) (Tucker, P., concurring in part and dissenting in part) ("No man at all acquainted with the course of legislation in Virginia, can doubt, for a moment, that decided hostility of the legislative power to religious incorporations. Its jealousy of the possible interference of religious establishments in matters of government, if they were permitted to accumulate large possessions . . . is doubtless at the bottom of this feeling.").⁽⁸⁾ Thus, strict application of establishment principles can result in the infringement of individual free exercise.

The Supreme Court realized that such an extreme form of antiestablishmentarianism could not be reconciled with the Free Exercise Clause. For example, in Walz v. Tax Comm'n., 397 U.S. 664 (1970), the Supreme Court held that the Establishment Clause did not prohibit the City of New York from exempting from taxation "property used exclusively for religious, educational or charitable purposes." Id. at 666. The Court held that the Establishment Clause does not prohibit neutral government accommodations to religion that constitute "neither sponsorship nor hostility." Id. at 672; see also Everson, 330 U.S. at 18 (holding that legislation providing public money to "help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools" does not violate the Establishment Clause even if the program assists parochial schools). Therefore, the scope of the Establishment Clause is limited by the general application of neutral accommodations to religion.⁽⁹⁾

As a result of this pattern of case law development in both the establishment and free exercise contexts, neutrality became the touchstone for courts sorting out the various church/state relationships. See, e.g., Agostini v. Felton, 521 U.S. 203, 231 (1997) (holding that the First Amendment is not violated where "aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis"); Rosenberger v. Rectors & Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995) ("A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion."); Id. at 846 (O'Connor, J., concurring) ("Neutrality, in both form and effect, is one hallmark of the Establishment Clause."); Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 667, 696 (1994) ("'A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of 'neutrality' toward religion.'" (quoting Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973))). Therefore, the general principle has emerged that, where the government remains neutral, accommodations to religion are not, of necessity, an impermissible establishment; and non-accommodation is not, of necessity, an impermissible infringement on the free exercise. Neutrality is thus the Court's answer to the paradoxical relationship between the two religion clauses,⁽¹⁰⁾ acting as the restraining principle holding each clause in check and maintaining the appropriate equilibrium between the two.⁽¹¹⁾

In light of this history, the Smith majority apparently viewed their rule focusing on neutrality as nothing but a concise restatement of long-standing First Amendment principles. While it is clear that neutrality has long underlain all First Amendment religion jurisprudence,⁽¹²⁾ the precise contours of the requirements of neutrality are "not self-revealing," Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 561 (Souter, J., concurring), and have been the subject of considerable judicial ink. The Smith concurrers and dissenters, contrary to the majority view, did not think the rule of Smith merged so seamlessly with established law. See, e.g., Smith, 494 U.S. at 891 (O'Connor, J., concurring) ("In my view, today's holding dramatically departs from well-settled First Amendment jurisprudence . . . and is incompatible with our Nation's fundamental commitment to individual religious liberty."); see also Church of the Lukumi Babalu Aye, Inc. 508 U.S. at 571 (Souter, J., concurring) ("[W]hatever Smith's virtues, they do not include a comfortable fit with settled law."). Of particular concern to the Smith concurrers and dissenters were two lines of cases represented by the Court's two opinions in Wisconsin v. Yoder, 406 U.S. 205 (1972) and Sherbert v. Verner, 374 U.S. 398 (1963).

In Yoder, the Supreme Court held that a Wisconsin compulsory public school attendance law was not neutral because it placed undue burdens on the practice of the Amish religion and on the parenting rights of Amish parents. 406 U.S. at 234. In mandating an accommodation to the Amish religion freeing its adherents from the compulsory attendance laws, the Yoder Court noted that the result reflected "nothing more than the governmental obligation of neutrality in the face of religious differences." Id. at 234 n.22 (internal quotation marks omitted). Thus, the Yoder rule (as opposed to the Smith rule) would require, for example, a secular law, applicable to all, that prohibited the consumption of alcohol, to provide religious accommodation to Catholics for the use of sacramental wine in order to be neutral. Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 561 (Souter, J., concurring).

In Sherbert, the Court had already applied strict scrutiny to a neutral law challenged under the Free Exercise Clause. There, the statute challenged "provided that a person was not eligible for unemployment compensation benefits if, 'without good cause,' he had quit work or refused available work. The 'good cause' standard created a mechanism for individualized exemptions." Bowen v. Roy, 476 U.S. 693, 708 (1986) (discussing Sherbert). The Court held that when faced with this kind of statutory scheme, strict scrutiny applied when the government used the 'good cause' standard to deny a person unemployment benefits because his religion prevented him from working on Saturday. Sherbert, 374 U.S. at 403-04. The decisions in Sherbert and its progeny thus "stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without a compelling reason." Smith, 494 U.S. at 884.

A series of cases in the late 1980s, however, indicated a clear shift in Free Exercise Clause jurisprudence. In these cases, the Supreme Court refused to apply strict scrutiny to free exercise challenges to prison regulations, internal government activities, and military regulations. See O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-50 (1987) (prison regulations); Bowen, 476 U.S. at 707-08 (internal government activities); Goldman v. Weinberger, 475 U.S. 503, 507-08 (1986) (military regulations). Instead, the Court used a rational basis test to evaluate these government actions, despite their clear impact on the free exercise of religion. The trend culminated in the rule announced in Smith. There, the Court was asked by practitioners of a Native American religion to follow Yoder and Sherbert and apply strict scrutiny to a statute restricting the use of peyote that had no religious accommodation allowing for its sacramental use. Not only did the Court refuse to create the accommodation, it ruled, as noted, that "the right of free exercise [of religion] does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability," Smith, 494 U.S. at 879, and that such a law need not be justified by a compelling interest even where religious practice is substantially burdened. Id. at 888-89.⁽¹³⁾

In order to reconcile the apparent conflict, the Smith majority allowed for two exceptions to the general Smith rule. The first exception, the so-called 'hybrid-rights exception,' preserved the Court's holding in Yoder, and the second, the 'individualized exemption exception,' preserved the Court's holding in Sherbert. See id. at 882-85. Thus, the Smith Court distinguished the two earlier lines of cases applying strict scrutiny to neutral and generally applicable laws. Whatever the continued viability of Yoder and Sherbert might be in certain limited circumstances, we can only conclude that the Supreme Court's holding in Smith rejects the basic concepts of neutrality embodied in those cases. As such, we now turn to examine the precise requirements of neutrality in the free exercise context pursuant to Smith.

2.

The clearest Supreme Court exposition of the kind of government neutrality required by Smith is found in Church of the Lukumi Babalu Aye, Inc.. There, a city ordinance prohibiting the ritual sacrifice of animals was challenged under the Free Exercise Clause by a religious sect desiring to sacrifice animals in the bona fide pursuit of their religious beliefs. Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 527-28. After reiterating the Smith rule that "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice," id. at 531, the Court outlined the general contours of the neutrality required by Smith, id. at 532-40. "At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Id. at 532. The Court made it clear, however, that reviewing a law for obvious religious discrimination is only the first step of the inquiry. "Facial neutrality is not determinative." Id. at 534. A law is also rendered non-neutral pursuant to Smith if it contains a "subtle departure[ ] from neutrality" or a "covert suppression of particular religious beliefs." Id. (internal quotation marks omitted). Thus, "[t]he Free Exercise Clause protects against governmental hostility which is masked, as well as overt. 'The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.'" Id. (quoting Walz, 397 U.S. at 696 (Harlan, J., concurring)). Applying this standard, the Court had no difficulty concluding that the ordinances in question were not neutral as they clearly targeted religious practice. Id. at 542.

This court has also explored the requirements of governmental neutrality in the wake of Smith. See Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135 F.3d 694 (10th Cir. 1998). In Swanson, home-schooling parents sued their local school district claiming that the district's policy against part-time school attendance violated their free exercise rights. Id. at 696-97. The Swansons claimed that their religion required them to home school their daughter in certain subjects, and that the part-time attendance ban burdened the exercise of their religion by, in effect, restricting their ability to do so. Id. We found that the part-time attendance policy was "neutral and of general application" and thus not subject to strict scrutiny. Id. at 698. The Swansons had argued that because the part-time attendance ban had accommodations for certain students, but not for home-schooled children, it was non-neutral. Id. Because the issue was not presented to the district court, we did not ultimately decide the question. Id. We did, however, note that while the policy provided exceptions to fifth-year students and special-education students, such accommodations did not render the policy non-neutral because they were based on a secular purpose rather than a religious one (accommodations were made for certain students who counted as full-time students for state-aid purposes). Id. at 698 n.3, 701. Thus, we held that the Swansons were not being discriminated against on the basis of their religion.

Church of the Lukumi Babalu Aye, Inc. contemplated violations of neutrality in the form of government action that formally discriminated against a particular religion. The instant case requires us to address the opposite circumstance: where government neutrality is brought into question as a result of an exemption granted only to the practitioners of a specific religion. In such a circumstance, government hostility to religion is not as clear-cut. However, we are not called upon to judge the hostility level of a particular regulation, but rather its neutrality. As such, we cannot see any basic difference pertaining to neutrality between a law that formally restricts a certain activity only when practiced by members of a specific religion for religious reasons and one that formally permits a certain activity only when practiced by members of a specific religion for religious reasons. Indeed, both create the sort of "religious gerrymander" that the religion clause of the First Amendment is designed to guard against.

Moreover, regardless of our opinion of Justice O'Connor's view of the Court's heavy reliance on neutrality as a First Amendment barometer, we are instructed by her assessment of such a reliance: "A government that confers a benefit on an explicitly religious basis is not neutral toward religion." Wallace, 472 U.S. at 82-83 (O'Connor, J., concurring). While it is clear that Smith does not require such extreme neutrality that any religious accommodation at all is non-neutral, we think Smith does embody the lesser requirement that should a statute or regulation contain an accommodation for religion, it must be cast broadly enough so as to encompass all religious claims for exemption. See, e.g., Nyquist, 413 U.S. at 794 (holding that "the narrowness of the benefitted class" is an important factor in determining neutrality). Further, the Supreme Court has specifically held that when religious accommodations are made to a generally applicable statute, "it is clear that neutrality as among religions must be honored." Bd. of Educ. of Kiryas Joel Vill. Sch. Dist., 512 U.S. at 707; see also KDM v. Reedsport Sch. Dist., 196 F.3d 1046, 1053 (9th Cir. 1999) (Kleinfeld, J., dissenting) (agreeing with the majority that when the government "treats people of one or all religions better or worse than others, the constitutional question [of neutrality] is traditionally formulated so that the answer has to be 'No!'"). Finally, contrary to Swanson, the instant case involves accommodations that are made expressly for religious purposes.

Therefore, when the government creates a generally applicable law or policy for secular purposes, yet grants a religiously motivated accommodation exclusively to a specific religious group, the law or policy is non-neutral. As such, we hold that the accommodation made by the Migratory Bird Treaty Act and its attendant regulations for practitioners of Native American religions violates the standard of neutrality announced in Smith. This holding, however, is not fully dispositive of the neutrality analysis in this case. Mr. Hardman is not claiming to be a practitioner of a non-Native American religion using eagle feathers for religious purposes. In fact, it is undisputed that Mr. Hardman is a devoted practitioner of a Native American religion. Therefore, it is not Mr. Hardman's religion, per se, that prevents him from complying with the permitting regulations. Rather, it is Mr. Hardman's political classification (as a non-member of a federally recognized Indian tribe) as it impacts the practice of his religion that renders him in violation of the statute. In this respect, to our knowledge, this case is unique in Free Exercise Clause jurisprudence.

In effect, the statute and regulations at issue mandate that only members of a particular political subdivision may participate fully in Native American religions requiring the use of eagle feathers. It is central to the concepts of ordered liberty embodied in the First Amendment that the "[f]reedom of conscience and freedom to adhere to such religious organization . . . as the individual may choose cannot be restricted by law." Cantwell, 310 U.S. at 303. Where formal neutrality forbids religious accommodations that are contingent on adhering to a specific religion, as we have held here, we have no difficulty finding that such neutrality extends to forbid religious accommodations contingent on membership in a particular political subdivision. Accordingly, we hold that both qualifying requirements of the permitting process--the religious requirement and the political requirement--violate Smith neutrality.

3.

We now turn to the question raised by the government: whether the fact that this case arises in the context of the guardian-ward relationship between the government and Native American tribes relieves the government of its burden to comply with the neutrality requirements of the free exercise clause. The government relies almost entirely on a line of cases arising in the Fifth and First Circuits, notably Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210 (1st Cir. 1991), and Rupert v. Dir., United States Fish & Wildlife Serv., 957 F.2d 32 (1st Cir. 1992). These cases applied only a 'rational relationship' test to Establishment Clause claims arising in the Native American context. See, e.g., Rupert, 957 F2d at 35 ("[W]e . . . see no reason not to use the 'rational relationship' analysis here.").

In Thornburgh, members of the Peyote Way Church challenged federal and state statutes that prohibited the use of peyote, but exempted members of the Native American Church. 922 F.2d at 1212. The court found that the exemption regulation, which stated that "[t]he listing of peyote as a controlled substance . . . does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church," id. at 1213-14, did not violate the Establishment Clause.⁽¹⁴⁾ Id. at 1216-17. The court held:

The unique guardian-ward relationship between the federal government and Native American tribes precludes the degree of separation of church and state ordinarily required by the First Amendment. The federal government cannot at once fulfill its constitutional role as protector of tribal Native Americans and apply conventional separatist understandings of the establishment clause to that same relationship.

. . . Thus, we hold that the federal [Native American Church] exemption represents the government's protection of the culture of quasi-sovereign Native American tribes and as such, does not represent an establishment of religion in contravention of the First Amendment.⁽¹⁵⁾

Id. at 1217.

In Rupert, the First Circuit reviewed the very regulation at issue in the instant case: 50 C.F.R. § 22.22. Rupert, 957 F.2d at 33. The court reviewed the regulation for possible violation of the Establishment Clause, but again, not for violation of the Free Exercise Clause. Id. at 34-36. Relying on the precedent established in Thornburgh, the Rupert court acknowledged that in most circumstances, "an exemption that frees one religious group from the prohibition but leaves another bound by it offends the principle of neutrality," but held that "where the government has treated Native Americans differently from others in a manner that arguably creates a religious classification" the First Amendment is not violated because of "Congress' historical obligation to respect Native American sovereignty and to protect Native American culture." Id. at 34-35.

It is not necessary, today, for us to pass on the appropriateness of the Thornburgh and Rupert approach. That is because we hold that, whatever the merits of Thornburgh and Rupert, they do not extend outside the confines of cases decided pursuant to the Establishment Clause. Thus, for the reasons discussed below, we decline the government's invitation to extend the holding in Rupert to cases arising under the Free Exercise Clause in this circuit.

As discussed above, supra, section VI.B.1, the history of the interrelationship between the Establishment Clause and the Free Exercise Clause is a complex one. One thing, however, has remained clear. While the two clauses overlap to a degree, "the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause." Smith, 494 U.S. at 901 (O'Connor, J., concurring) (citing Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141-42 (1987)).

The unique values protected by the Establishment Clause can be seen clearly in James Madison's classic Memorial and Remonstrance Against Religious Assessments where he urged the Virginia General Assembly to reject a proposed "Bill establishing a provision for Teachers of the Christian Religion." He remonstrated:

What influence, in fact have ecclesiastical establishments had on civil society? In some instances they have been seen to erect a spiritual tyranny on the ruins of civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the publick liberty, may have found an established clergy, convenient auxiliaries. A just government, instituted to secure and perpetuate it, needs them not.

James Madison, Memorial and Remonstrance Against Religious Assessments, ¶ 8, reprinted in The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 49 (Neil Cogan ed., 1997). Thus, Madison, the architect of the First Amendment, understood the antiestablishment principle to protect against "political tyranny" and the "subversion of civil authority." McGowan v. Maryland, 366 U.S. 420, 430 (1961); see also Everson, 330 U.S. at 15 ("The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference." (internal quotation marks omitted)). The primary purpose of antiestablishment is to protect "society from the threat of political division along religious lines." Hall v. Bradshaw, 630 F.2d 1018, 1021 (4th Cir. 1980).⁽¹⁶⁾

This general principle of antiestablishment is seen clearly in the history of the Establishment Clause itself. Specifically, the Establishment Clause was meant as a protection against the corruption of the federal government by religion. The Clause did more than prohibit congressional establishment of religion, it "prohibited the national legislature from interfering with, or trying to dis-establish, churches established by state and local governments." Amar, supra at 32. Justice Story wrote that "the whole power over the subject of religion is left exclusively to the state governments." Joseph Story, Commentaries on the Constitution of the United States § 1873, quoted in Amar, supra at 33; see also Barron v. Baltimore, 32 U.S. 243, 247-48 (1833).⁽¹⁷⁾ Indeed, in 1789, six states had established state churches and four prohibited non-Christians from serving in state government. Amar, supra at 32-33. Thus, originally, "state governments [were] . . . the rights holders under the clause." Id. at 33. Therefore, the Establishment Clause was meant to protect the corporate right of groups of citizens, i.e., states, to have a federal government free of religious entanglements.

In Everson, the Supreme Court incorporated the Establishment Clause into the Due Process Clause of the Fourteenth Amendment, thus making it applicable against state governments. As such, the Establishment Clause has been recognized as protecting an individual right, and even as a "coguarantor, with the Free Exercise Clause, of religious liberty." Schempp, 374 U.S. at 256 (Brennan, J., concurring).⁽¹⁸⁾ Despite incorporation, however, the auspices under which the Establishment Clause became a part of our Constitution serve as more than mere historical curiosities; they serve to instruct us that the Establishment Clause, in its fundamental character, does not protect religious rights, but rather, protects the civil right to have a government free from the vexing entanglements of religious establishment, whether that civil right is held corporately (pre-incorporation) or individually (post-incorporation).

Courts have consistently recognized this fact. Indeed, while free exercise is clearly an individual religious right, Lyng v. Northwest Indian Cemetary Protective Ass'n, 485 U.S. 439, 451 (1988) ("[T]he Free Exercise Clause is written in terms of what the government cannot do to the individual." (internal quotation marks omitted)); Tarsney v. O'Keefe, 225 F.3d 929, 936 (8th Cir. 2000) (holding that the Free Exercise Clause is "a constitutional guarantee on non interference by the government with religious practice"), "the purposes underlying the Establishment Clause go much further than" the protection of individual religious liberty. Engle, 370 U.S. at 431. Specifically, the Establishment Clause protects the civil right of citizens to have a government free from religious entanglement. "[T]he Establishment Clause creates in each citizen a 'personal Constitutional right' to a government that does not establish religion. . . . [F]reedom from establishment is a right that inheres in every citizen." Americans United for Separation of Church & State, Inc. v. United States Dep't of Health, Educ. & Welfare, 619 F.2d 252, 265 (3rd Cir. 1980), rev'd on other grounds, Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) (reversing on the grounds that the citizen taxpayers lacked standing because they could not show any injury due to the fact that the property transfer complained of was not an exercise of the authority conferred on Congress by the Taxing and Spending Clause of the Constitution); see also Tarsney, 225 F.3d at 936 ("When the government spends public money in violation of the Establishment Clause, a taxpayer suffers a direct injury because the government is improperly promoting religion.").

Because the two religion clauses protect different values, and because they require different things from the government, we cannot analyze them in the same way. If "the purpose of the 'establishment' clause was only to insure protection for the 'free exercise' of religion" the clauses would be repetitive and dual analysis would not be required. McGowan, 366 U.S. at 430. As it is, our analysis of 50 C.F.R. § 22.22 pursuant to the Free Exercise Clause in this case mandates a different result from the one reached by the First Circuit analyzing the same regulation pursuant to the Establishment Clause in Rupert. Rupert was concerned with the inability of the government to maintain strict non-entanglement with religion when it was executing its trust duties toward Native American tribes. This aspect of Rupert is simply not present here. The Free Exercise Clause is not concerned with non-entanglement, but rather with protecting individual religious freedom. Thus, the Free Exercise Clause cannot be trumped by the guardian-ward relationship between the government and Native American tribes. While the relationship may temper the values protected by the Establishment Clause, it cannot negate the values protected by the Free Exercise Clause. Accordingly, we decline to follow the rule of Rupert in the context of a free exercise challenge.

4.

"A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny." Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 546. Strict scrutiny requires that a law be "justified by a compelling governmental interest and must be narrowly tailored to advance that interest." Id. at 531-32.

We are unaware of any circuit court case applying First Amendment strict scrutiny to the permitting process outlined in 50 C.F.R. § 22.22.⁽¹⁹⁾ The government asserts a compelling interest in protecting migratory birds in compliance with treaty agreements. The purpose of the MBTA was, in part, to "aid in the restoration of such birds in those parts of the United States adapted thereto where the same have become scarce or extinct." 16 U.S.C. § 701. Originally, the Act implemented an agreement between Great Britain and the United States. Now, the Act implements similar treaties between the Untied States and other nations. See Andrus v. Allard, 444 U.S. 51, n.11 (1979) (citing Coggins & Patti, The Resurrection and Expansion of the Migratory Bird Treaty Act, 50 Colo. L. Rev. 165, 169-174 (1979)).

Eagles were brought within the Act by a 1972 Presidential agreement entered into pursuant to the 1936 Convention with Mexico. Agreement Supplementing the Convention of Feb. 7, 1936, Mar. 10, 1972, U.S.-Mex., 23 U.S.T. 260. The 1936 Convention, by its terms, explicitly contemplated that the Convention could be modified by Presidential agreement between the two countries. Convention Between the United States of America and Mexico for the Protection of Migratory Birds and Game Mammals, Feb. 7, 1936, 50 Stat. 1311. "The 1936 Convention indicates congressional policy with regard to migratory birds . . . . The power to determine the specific terms required to effectuate congressional purpose is lawfully delegated to the President when the terms must be agreeable among several foreign nations." United States v. Mackie, 681 F.2d 1121, 1124 (9th Cir. 1982) (citing United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 329 (1936)). The dissent would remand this case to district court for a factual inquiry into whether some eagle species may be recovering. We are extremely hesitant to inject court found facts into treaty making procedures that are rightly within the purview of the President and the Congress. The United States therefore has a compelling interest in enforcing its treaty obligations as they are defined by agreements lawfully entered into by the President of the United States with foreign nations.⁽²⁰⁾

The government further asserts that it has a compelling interest in protecting the unique culture and religion of Native Americans. The historical abuses Native American religion has suffered at the hands of the United States government have been thoroughly catalogued. See, e.g., Jack F. Trope, Protecting Native American Religious Freedom: The Legal, Historical, and Constitutional Basis for the Proposed Native American Free Exercise of Religion Act, 20 N.Y.U. Rev. L. & Soc. Change 373 (1993). However, beginning in the 1930s, federal policy, recognizing the government's unique trust relationship with Indian tribes, began to value and actively protect Native American culture. Bear Lodge Multiple Use Ass'n. v. Babbitt, 175 F.3d 814, 817 (10th Cir. 1999). It has long been an accepted tenet of federal Indian law that the government's trust obligation to Indian tribes imposes an obligation to protect Native American culture. See, e.g., Kickapoo Tribe v. Rader, 822 F.2d 1493, 1500-01 (10th Cir. 1987) ("[P]art of the trust responsibility of the United States is" to protect the interests of Indian foster children by "'placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.'" (quoting 25 U.S.C. § 1902)); Rupert v. Director, United States Fish & Wildlife Serv., 957 F.2d 32, 35 (1st Cir. 1992) (Congress has a "historical obligation to respect Native American sovereignty and to protect Native American culture."). Moreover, Congress has clearly enshrined this trust duty in the American Indian Religious Freedom Act. 42 U.S.C. § 1996 (declaring a policy to "protect and preserve for American Indians their inherent right of freedom to believe . . . traditional religions . . . and the freedom to worship through ceremonials and traditional rites"). Thus, the government has a compelling interest in protecting the culture and religion of Native Americans.

The permitting process set forth in 50 C.F.R. § 22.22 stands at the center of a careful balance between the government's compelling interest in fulfilling its treaty obligations pursuant to the 1936 Convention with Mexico and its compelling interest in protecting Native American religion. Congress "considered the special cultural and religious interests of Indians, balanced those needs against the conservation purposes of the statute, and provided a specific, narrow exception." Dion, 476 U.S. at 743. Therefore, we find that the government has two compelling interests that are vindicated by 50 C.F.R. § 22.22, each of which is uniquely at cross-purposes with the other. A narrowly tailored rule furthering both interests requires that they be set in careful equipoise. "Any diminution of the exemption would adversely affect the former interest, but any extension of it would adversely affect the latter." Rupert, 957 F.2d at 35. We hold that a permitting process which does not allow non-Native Americans such as Mr. Hardman to qualify for an exception to the MBTA meets the First Amendment compelling interest test.⁽²¹⁾

D.

In addition to making a free exercise claim, Mr. Hardman has challenged the permitting process as a violation of the First Amendment's Establishment Clause. Mr. Hardman asserts that the permitting process creates a denominational preference for Native American religion as practiced by members of federally recognized tribes. It is true that, where a law permits one denominational group to act in a certain way and prohibits another religious group from the same conduct, a denominational preference is present and strict scrutiny is applied. Larson v. Valente, 456 U.S. 228, 244-46 (1982). It is also true, however, that the "unique guardian-ward relationship between the federal government and Native American tribes precludes the degree of separation of church and state ordinarily required by the First Amendment." Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1217 (5th Cir. 1991). Further, the government "cannot at once fulfill its constitutional role as protector of tribal Native Americans and apply conventional separatist understandings of the establishment clause to that same relationship." Id. As a result, the Supreme Court has "repeatedly held that the peculiar semisovereign and constitutionally recognized status of Indians justifies special treatment on their behalf when rationally related to the Government's 'unique obligation toward the Indians.'" Wash. v. Wash. State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 673 n.20 (1979) (quoting Morton v. Mancari, 417 U.S. 535, 555 (1974)).

Following Washington, as discussed above, supra section IV-B-3, one circuit court reviewing an Establishment Clause challenge to 50 C.F.R. § 22.22 has applied a rational relationship analysis to the permitting process. Rupert v. Director, United States Fish & Wildlife Serv., 957 F.2d 32, 35 (1st Cir. 1992) ("[W]e . . . see no reason not to use the 'rational relationship' analysis here, where the government has treated Native Americans differently from others in a manner that arguably creates a religious classification."). But cf. Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1220-21 (5th Cir. 1991) (Clark, C.J., dissenting) (stating that the "government's paternalistic interest in American Indians" is not sufficient to trump the Constitution's ban on laws "respecting an establishment of religion"); Olsen v. Drug Enforcement Admin., 878 F.2d 1458, 1468-69 (D.C. Cir. 1989) (Buckley, J., dissenting) (strict scrutiny should be applied where the government has treated Native Americans differently on religious grounds). Because we have already determined that the permitting process meets the compelling interest test, we need not decide today which level of scrutiny to apply to governmental action that treats Native Americans differently on religious grounds. Under either test, 50 C.F.R. § 22.22 passes constitutional muster.

V.

Mr. Hardman has additionally claimed that, as applied to him, the Migratory Bird Treaty Act and its permitting process violate his equal protection rights because he has been selectively and discriminatoraly prosecuted. "[T]here is a presumption that prosecution for violation of the criminal law is in good faith." United States v. Blitstein, 626 F.2d 774, 782 (10th Cir. 1980). "To demonstrate unconstitutionally selective prosecution a defendant must show (1) he was singled out for prosecution while others similarly situated were not generally prosecuted; and (2) the prosecution was invidiously based on racial, religious, or other impermissible considerations." United States v. Bohrer, 807 F.2d 159, 161 (10th Cir. 1986). Furthermore, where there has been no factual showing that the statute has not been enforced evenhandedly, the statute is not unconstitutional as applied to the defendant. United States v. Guerrero, 667 F.2d 862, 869 (10th Cir. 1981).

"When addressing an issue other than the accused's guilt or innocence, the clearly erroneous standard of review applies to appellate review of trial court fact findings." United States v. Johnson, 941 F.2d 1102, 1108 (10th Cir. 1991). Mr. Hardman's claim that the Act has been enforced uneven-handedly is not supported by the record. The magistrate judge found, as a factual matter, that Mr. Hardman had failed to present evidence sufficient to establish a pattern of non-enforcement by the tribal officers. This finding is not clearly erroneous. Thus, as applied to Mr. Hardman, the Act does not violate his equal protection rights.

VI.

Once again, we will review the factual findings of the trial court for clear error only. Johnson, 941 F.2d at 1108. The trial court found, as a factual matter, that the citing officer was a Federal Bureau of Indian Affairs officer who was acting within the exterior perimeter of the reservation. These findings are not clearly erroneous. As a matter of law, the Bureau of Indian Affairs has jurisdiction over all of the lands within the exterior boundaries of the reservation. See 18 U.S.C. § 1151; 25 U.S.C. § 2. Thus, there exists no defect in the manner in which Mr. Hardman was cited for violating the Migratory Bird Treaty Act.

VII.

The Migratory Bird Treaty Act and C.F.R. § 22.22 do not violate either the First Amendment's protection of the free exercise of religion or its prohibition against the establishment of religion. Further, as applied to Mr. Hardman, neither the Act nor the permitting process have violated Mr. Hardman's right to equal protection of the law under the Fourteenth Amendment. Finally, the tribal officer citing Mr. Hardman for violating the Migratory Bird Treaty Act was within his jurisdiction to do so. AFFIRMED.

No. 99-4210, United States v. Hardman

HENRY, Circuit Judge concurring:

Cognizant of other cases that our court is conflicting in this area, I am uncertain as to whether RFRA applies when not raised. But I do agree that the dual interests of the government, i.e., protecting the golden eagle and protecting the culture and religion of Native American religion, are compelling governmental interests. I also agree that the permitting system is narrowly tailored and is the least restrictive means of advancing these interests (in the meaning of our case law in this area) in that the system enables the government to protect the family of birds containing one of our national symbols, to fulfill its unique obligations to federally recognized Indian tribes, and to fulfill its international treaty obligations as well.

Further, although my decision does not cause me to have to examine current data that may suggest a recovery of some eagle species, I have concerns with the dissent's suggestion to remand for factual determinations that in effect have already been made and signed into treaties by the President and ratified by the Senate. We must recognize Congress' "'plenary power . . . based on a history of treaties . . . to legislate on behalf of federally recognized Indian tribes.'" Rupert v. Director, United States Fish & Wildlife Serv., 957 F.2d 32, 34 (1st Cir. 1992) (quoting Morton v. Mancari, 417 U.S. 535, 551-52 (1974)). In addition, my reservations stem from a "long history of judicial deference to the exclusive power of the Executive over conduct of relations with other sovereigns," as well as semi-sovereign powers. First Nat'l City Bank v. Banco Nacionale de Cuba, 406 U.S. 759, 765 (1972) (addressing the act of state doctrine). Finally "[r]esolution of the instant issue turns on the unique legal status of Indian tribes under federal law and upon the plenary power of Congress, based on a history of treaties and the assumption of a 'guardian-ward' status, to legislate on behalf of federally recognized Indian tribes. The plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself." Morton v. Mancari, 417 U.S. 535, 549 (1974),

I believe the suggested factual determinations have been made within treaty making procedures in accordance with international law and by the regulatory bodies empowered to make determinations regarding the recovery of te eagle family. See 50 C.F.R. §§ 10.13 (list of migratory birds); 17.11 (list of endangered and threatened wildlife, updated regularly (665 times) since its enactment). I do not believe it is the court's place to take further evidence affecting treaties. Furthermore, neither party has requested additional factfinding on these issues. While it may be within the judicial power to address these facts, I do not believe it is advisable, nor within the realm of particular judicial expertise.

Thus, with the exception of the majority's treatment of the RFRA issue, of which I am unsure, I fully join the opinion.

No. 99-4210, United States v. Hardman

McKAY, Circuit Judge dissenting:

Background

Appellant is a bona fide practitioner of a Native American religion. His ex-wife and children are enrolled members of the federally recognized S'Kallum Tribe, but Appellant is not himself of Native American descent. In 1993, a Hopi religious leader conveyed to Appellant a prayer bundle containing eagle feathers as part of his performance in a funeral ritual. The Migratory Bird Treaty Act makes it illegal for any person to possess the parts of migratory birds, except "as permitted by regulations . . . ." 16 U.S.C. § 703. The regulation that authorizes a permit requires an applicant to (1) be an actual practitioner of a Native American religion and (2) be a member of a federally recognized tribe. 50 C.F.R. § 22.22.

When Appellant inquired about obtaining a permit to possess the feathers, which had continuing religious significance, he was instructed not to apply because he was not a member of a federally recognized tribe. After effectively being denied the right to apply for a permit, he was convicted under the Migratory Bird Treaty Act for possessing eagle parts without a permit. The question on appeal is whether the federal government impermissibly deprived him of free exercise of religion by subjecting his religious practice to a permit process that excludes him while allowing applications from other adherents to the same religion.Free Exercise

In Smith, 494 U.S. 872, the Supreme Court held that a distinct constitutional analysis guides our review of neutral and generally applicable laws. It is clear that a criminal statute that is neutral and generally applicable does not violate the free exercise clause. Because this scheme makes an exemption for the religious practice of recognized tribal members, it is not, in my view, generally applicable. The regulation at issue distinguishes between members of the same religion and effectively favors one person's religious belief and practice over another's.

Although there is generally room to argue the meaning of neutral and generally applicable, see Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 561 (1993) (Souter, J., concurring), any such argument must square with the rule that when a law contains "a system of individualized exemptions, it may not refuse to extend that system to cases of religious hardship without compelling reason." Smith, 494 U.S. at 884. Unlike the statute reviewed in Smith, the regulation at issue here creates a system of individualized exemptions for religious practice. It is well established that a law cannot favor one religious practitioner over another without compelling reason. See Lukumi Babalu, 508 U.S. at 532-33; Fowler v. Rhode Island, 345 U.S. 67, 69-70 (1953); see also Larson v. Valente, 456 U.S. 228, 244 (1982). Thus, because it creates individualized exemptions for religious practice, I agree with the majority that the regulation at issue is subject to the compelling interest test under Smith. The district court decided this case under the principle of Smith neutrality. Because we are reversing that conclusion, I would remand for full consideration of the required compelling interest analysis.

Regardless of whether the statute and exemption are deemed neutral and generally applicable, in enacting the Religious Freedom and Restoration Act ("RFRA") Congress required that courts apply the compelling interest test to any infringement on free exercise of religion. In Flores, 521 U.S. at 516, the Supreme Court held that Congress lacked power under the Fourteenth Amendment to impose the compelling interest test on state action. However, we recently joined other circuits in holding that "the separation of powers concerns expressed in Flores do not render RFRA unconstitutional as applied to the federal government." Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir. 2001).⁽¹⁾ RFRA does not apply against the states, but it applies to the federal government, and by its own language it applies "in all cases where free exercise of religion is substantially burdened." 42 U.S.C. § 2000bb(b)(1).

The majority characterizes RFRA as a statutory cause of action separate from a constitutional claim. I cannot. Because RFRA applies to the federal government in all free exercise cases, I understand RFRA to be a required statutory supplement to those constitutional claims. Therefore, our disposition of this case must account for RFRA. While courts have diverged on whether RFRA applies when a party fails to raise it, we have considered RFRA regardless. See Werner v. McCotter, 49 F.3d at 1476, 1478-79 (10th Cir. 1995). That reasoning is still valid.

While three circuits have held that 50 C.F.R. § 22.22 survives strict scrutiny, I am not persuaded. See Gibson v. Babbitt, 223 F.3d 1256 (11th Cir. 2000); United States v. Hugs, 109 F.3d 1375 (9th Cir. 1997); Rupert v. U.S. Fish & Wildlife Serv., 957 F.2d 32 (1st Cir. 1992). Even in the absence of a record, I am persuaded that, as a matter of law, the federal government has a compelling interest generally in accommodating the religious practices of Native Americans. However, it is not at all obvious to me that this interest leads to the conclusion that the government may draw distinctions between adherents to the same religion and practices. Clearly, the government has a special duty to the Native American tribes, but I fail to find support in the cases cited or in my own research for the majority's assertion that this duty justifies violations of the First Amendment. Conversely, in cases where the Supreme Court has considered religious liberty of Native Americans, the Court's reasoning and implication suggests that our holdings are to be dictated by the First Amendment. See Lyng v. Northwest Indian Cemetery Protective Assoc., 485 U.S. 439, 451 (1987); Smith, 494 U.S. at 874, 883.

The absence of any record leaves me unable to even preliminarily judge whether the government has a compelling interest in protecting eagles. Because research suggests that neither bald nor golden eagles are endangered or even threatened, I cannot find the interest asserted in this case compelling as a matter of law. See Proposed Rule to Reclassify Remove the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife, 64 Fed. Reg. 36454 (July 6, 1999); see also Final Rule to Reclassify the Bald Eagle from Endangered to Threatened in All of the Lower 48 States, 60 Fed. Reg. 36000 (July 12, 1995). In fact, the bald eagle is no longer listed as an endangered or even threatened species in the lower forty-eight states. See 50 C.F.R. § 17.ll (fact-based listing as distinguished from 50 C.F.R. § 10.13, which merely identifies eagles as a species to be managed).

Under the treaty, the implementing legislation, and the regulatory scheme, whether the government's interest is strong enough to deny free exercise of religion appears contingent on the actual population status of the birds, not on the bald assertion of a governmental interest. The treaty authorizes distribution of eagle parts "as permitted by [domestic] regulations." 16 U.S.C. § 703. It is certainly true that domestic regulations must comply with the Constitution.

At this stage, it is impossible without a fully developed record to do the kind of close scrutiny required when determining that the federal interest is so compelling that it overbalances the individual interest in free exercise. Ultimately, the consideration of the necessary balancing necessarily requires the application of the narrowly tailored or least restrictive means test, even if the federal interest is considered generally compelling. Again, those determinative issues were not addressed by the district court. There is no way this court can apply that standard without the full development of a factual record.

For these reasons, I would reverse and remand for a full development of facts which may bear on whether the government's interest in protecting eagles is compelling; if so, is it so compelling as to require discrimination among adherents to the same religion; and finally, whether the statute and regulatory scheme at issue satisfy either the narrowly tailored or the least restrictive means tests for achieving whatever interests may ultimately prove to be so compelling as to justify the denial of free exercise of religion.

^1. Mr. Hardman did actually apply for a permit after Officer Murray seized the feathers. Such a post hoc application is not sufficient to establish standing.

^2. See Morton v. Mancari, 417 U.S. 535, 553-54 (1974) (holding that treating members of federally recognized tribes differently from non-members was not subject to strict scrutiny because the distinction was a political classification rather than a racial one).

^3. Because this case presents a unique set of facts, formulation of the threshold questions concerning neutrality is both difficult and critical to the analysis. Although we do not choose to superimpose an equal protection analysis on a free exercise claim, infra, note 15, the granting of an exemption to one group and not another resembles equal protection concerns regarding suspect classifications. Mr. Hardman essentially argues the classifications in this case burden the free exercise of his religion while impermissibly establishing the religious practices of another group.

In order to decide the free exercise claim, we must, however, focus on the burdening of Mr. Hardman's religious practice. In determining whether a generally applicable law is neutral, we therefore ask whether the "object of [the] law is to infringe upon or restrict practices because of their religious motivation." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (conducting a Smith neutrality analysis). Simply stated, if the object, or purpose, of the law is secular, it is neutral. Id. Without the exemption, the Act is clearly neutral: its purpose--protection of the eagles--is secular and the Act applies to everyone. It is, therefore, the exemption for Native Americans practicing certain religions that places the neutrality of the act in question. Therefore, the object or purpose of the exemption, rather than that of the Act, becomes the necessary focus of our analysis. However, the facts of this case complicate that analysis because we must decide whether to focus on the exemption itself or the denial of the exemption.

In analyzing the object of 50 C.F.R. § 22.22, we could ask whether Mr. Hardman has been denied an exemption for secular or religious reasons. Conversely, we could look to the exemption itself and ask whether it has a secular or religious purpose--either on its face or in its application. Which path we choose influences our analysis largely because of the underlying presence of both religious and political classifications. Viewing neutrality through the former lens, focusing on the denial, or absence, of an exemption rather than the exemption itself, may, for example, favor a finding of secular purpose: Mr. Hardman was arguably denied an exemption not because of his religion but because he is not a member of a federally recognized tribe.

On the other hand, viewing the issue through the latter lens focuses our inquiry properly on the language and history of the law in question. It is through this lens that we choose to analyze free exercise neutrality in the context of an exemption. To do otherwise would subject one law to varying neutrality determinations depending on the peculiarities of any particular plaintiff's position. We choose instead a mode of analysis that will result in one neutrality determination applicable to everyone.

^4. At first blush, Mr. Hardman's allegations of religious discrimination seem to fit more snugly with his Establishment Clause claim than his Free Exercise Clause claim. This is because a legal challenge "founded on disparate treatment of 'religious' claims invokes . . . the central purpose of the Establishment Clause." Gillette v. United States, 401 U.S. 437, 449 (1971). It is true that where the "gist of the constitutional complaint is . . . impermissibl[e] discriminat[ion] among types of religious belief," id., the Establishment Clause is typically the focus. Even so, we are not free to ignore the "free exercise overtones," id., of such a claim, particularly when the claimant has expressly framed his complaint in free exercise language. Even assuming that Mr. Hardman's Establishment Clause claim will fail, the regulation does not thereby receive a free pass on free exercise grounds. Indeed, the Supreme Court has "recognized that the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause." Smith, 494 U.S. at 901 (O'Connor, J., concurring) (citing Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141-42 (1987)). Mr. Hardman has experienced a clear and undisputed restraint on the free exercise of his religion, and we remain bound to decide his free exercise challenge according to the Constitution and the various precedents of the Supreme Court and of this circuit.

^5. While the word separation appears nowhere in the text of the First Amendment, its importance as a guiding principle of First Amendment jurisprudence cannot be denied. For example, in the now famous letter to the Baptist convocation at Danbury, Connecticut, Jefferson wrote: "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and state." T. Jefferson, 16 Writings of Thomas Jefferson 281-82 (1903). One-and-a-half centuries earlier, Williams, the political grandfather of the First Amendment, argued that religious persons have always been called to be "separate from the world" and that "when they have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the candlestick, and made His garden a wilderness." Roger Williams, Mr. Cotton's Letter Lately Printed, Examined and Answered (quoted in Perry Miller, Roger Williams: His Contribution to the American Tradition 98 (1953)). This notion of separation has permeated modern Supreme Court jurisprudence. See e.g., Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) ("In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'" (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878))); Id. at 31-32 (Rutledge, J., dissenting) ("The Amendment's purpose . . . was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion."). We are mindful that "rule[s] of law should not be drawn from a figure of speech," McCollum v. Bd. of Educ., 333 U.S. 203, 247 (1948) (Reed, J., dissenting), and that the Constitution does not "require complete separation of church and state," Lynch v. Donnelly, 465 U.S. 668, 673 (1984); however, it is clear that separation, in all its guises, remains a guiding principle of the First Amendment. See, e.g., Catholic Bishop of Chicago v. N.L.R.B., 559 F.2d 1112, 1119 (7th Cir. 1977) ("[I]rrespective of the height, breadth, straightness, or fissures in the Religion Clauses separation wall, the Court's numerous precedents in this area are firmly rooted and now provide substantial guidance.").

^6. This principle, of course, and "the distinction between belief and behavior, are susceptible of perverse application." Schempp, 374 U.S. at 249 n.14 (Brennan, J., concurring). For example, Oliver Cromwell's mandate to Irish Catholics: "As to freedom of conscience, I meddle with no man's conscience; but if you mean by that, liberty to celebrate the Mass, I would have you understand that in no place where the power of the Parliament of England prevails shall that be permitted." Quoted in id.

^7. 6 Papers of Thomas Jefferson 297 (J. Boyd ed. 1952):

Of this General Assembly the Treasurer, Attorney General, Register, Ministers of the Gospel, officers of the regular armies of this state or of the United states, persons receiving salaries or emoluments from any power foreign to our Confederacy, those who are not resident in the counties for which they are chosen Delegates or districts for which they are chosen Senators, persons who shall have committed treason, felony or such other crime as would subject them to infamous punishment or who shall have been convicted by due course of law of bribery or corruption in endeavouring to procure an election to the said assembly, shall be incapable of being members.

^8. Despite the fact that Gallego was overruled some fifty-seven years later in Trustees of the Gen. Assembly of the Presbyterian Church in the United States v. Guthrie, 10 S.E. 318, 325-26 (Va. 1889), it remains an example of extreme antiestablishmentarianism.

^9. As noted above, supra, note 6, this limiting principle is subject to abuse where legislatures, intending to sponsor religion, create facially neutral laws or accommodations to religion.

^10. While it has been argued by no less an authority than Justice O'Connor that the "solution to the conflict between the Religion Clauses [does not lie] in 'neutrality,'" Wallace, 472 U.S. at 83 (O'Connor, J., concurring), the Court has clearly taken a different path; and we are obliged to follow.

^11. Furthermore, it is worth noting that while neutrality solves the primary conflict between the two religion clauses by holding them in tension--it further solves the problem of religious discrimination or religious establishment based on extreme readings of either clause. See supra, notes 6, 8. Indeed, the legislative purpose of laws may be neither the advancement nor the inhibition of religion. "State power is no more to be used so as to handicap religions, than it is to favor them." Everson, 330 U.S. at 18; see also Walz, 397 U.S. at 669, 672. The Supreme Court has struck down facially neutral laws on both free exercise and establishment grounds. See, e.g., Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 527, 534-36 (holding that a facially neutral city ordinance prohibiting the killing of "an animal in a public or private ritual or ceremony not for the primary purpose of food consumption" violated the Free Exercise Clause because the clause "extends beyond facial discrimination" and the "exclusive legislative concern" of the ordinance was a specific religion's practices); Edwards v. Aguillard, 482 U.S. 578, 586-87, 593 (1987) (holding that the Establishment Clause was violated by a law with a purported secular purpose to treat religious and non-religious origin theories equally because the government's "articulation of a secular purpose" is required to be "sincere and not a sham" and the purpose of the law was "to restructure the science curriculum to conform with a particular religious viewpoint"). One scholar has argued that the roots of this aspect of First Amendment neutrality can be found in the federalism concern that Congress could not "'under the pretext of executing its power, pass laws for the accomplishment of objects not entrusted to the government.'" Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 37-38 (1998) (quoting McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 423 (1819)). This strict federalism understanding of "enumerated powers in terms of their natural 'objects' or 'purposes'" resembles pre-1776 colonists' arguments that "Parliament could enact bills to regulate trade for the overall benefit of the empire but could not use this power pretextually to raise revenues." Id. at 38 n.*.

^12. First Amendment neutrality, as discussed in Supreme Court opinions, is rarely explicitly differentiated into the categories Free Exercise Clause neutrality and Establishment Clause neutrality. In fact, the Court allows the principles of neutrality to flow from Establishment Clause cases to Free Exercise Clause cases intact. See, e.g., Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 532-33 (applying neutrality principles from Establishment Clause cases in the Free Exercise Clause context). Indeed, "[b]ecause of the overlap" between the two clauses, decisions under one clause "bear considerable relevance" to decisions under the other. Schempp, 374 U.S. at 249 (Brennan, J., concurring). As a result, we do not differentiate between Free Exercise Clause neutrality and Establishment Clause neutrality herein, but rather refer to First Amendment neutrality as a requirement that adheres to both of the religion clauses equally. Even so, it is clear that the dictates of neutrality may require different government action depending on which clause is implicated.

^13. One explanation of the Smith holding as it relates to earlier Supreme Court precedent relies on a distinction between 'substantive neutrality' and 'formal neutrality.' See generally Douglas Laycock, Formal, Substantive, and Disaggregated Neutrality Toward Religion, 39 DePaul L. Rev. 993 (1993). Smith neutrality, termed 'formal neutrality,' distinguishes between "laws whose 'object' is to prohibit religious exercise and those that prohibit religious exercise as an 'incidental effect.'" Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 562 (Souter, J., concurring). "Smith placed only the former within the reaches of the Free Exercise Clause; the latter, laws that satisfy formal neutrality, Smith would subject to no free-exercise scrutiny at all, even when they prohibit religious exercise in application." Id. (citing Smith, 494 U.S. at 878).

^14. The court also found that the Free Exercise Clause was not violated by the statutes criminalizing the use of peyote. Thornburgh, 922 F.2d at 1213. The court did not, however, review the exemption regulation for possible violation of the Free Exercise Clause, but only for violation of the Establishment Clause.

^15. In addition, the Thornburgh court (and subsequently the Rupert court) looked to Justice Harlan's statement that "[n]eutrality in its application requires an equal protection mode of analysis," Walz, 397 U.S. at 696 (Harlan, J., concurring), to find additional support for its reliance on the equal protection cases of Morton v. Mancari, 417 U.S. 535 (1974), and Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Those cases held that laws treating Native American's differently were not based on an impermissible racial classification, but rather on a political classification, Morton, 417 U.S. at 554, and that determining whether Native Americans were similarly situated to others required cognizance of the fact that "tribes remain quasi-sovereign nations," Santa Clara Pueblo, 436 U.S. at 71. It is unnecessary for us to decide today the proper use of equal protection jurisprudence in First Amendment cases because the decisions in Thornburgh and Rupert rested primarily on a particular understanding of the Establishment Clause, and only secondarily on the equal protection cases. However, without deciding the issue, we express reservations about the wisdom and usefulness of importing equal protection concepts into First Amendment cases. This approach has never been endorsed by a majority of the Supreme Court or by this circuit. Framing the ultimate question in terms of "equality of treatment" distances a court from its obligation to discern whether the constitutionally mandated neutrality has been maintained. See Doe v. Beaumont Indep. Sch. Dist., 240 F.3d 462, 2001 WL 69499, *17 (5th Cir. Jan. 26, 2001) (plurality opinion of Wiener, J., dissenting) ("[S]ubtly substitut[ing] the Equal Protection Clause for the Establishment Clause, impermissibly frame[s] the ultimate issue in terms of 'equality of treatment' rather that the neutrality that the Constitution demands.").

^16. For many of the Founders, Madison included, antiestablishment also served as a necessary protection of the institutions of religion. This is well described by Roger Williams in his The Bloudy Tenent, of Persecution, for cause of Conscience: "The unknowing zeale of Constantine and other Emperours, did more to hurt Christ Jesus his Crowne and Kingdome, then the raging fury of the most bloody Neroes. In the persecutions of the later, Christians were sweet and fragrant, like spice pounded and beaten in morters: But those good Emperours, persecuting some erroneous persons, Arrius, &c. and advancing the professours of some Truths of Christ (for there was no small number of Truths lost in those times) and maintaining their Religion by the materiall Sword, I say by this meanes Christianity was ecclipsed, and the Professors of it fell asleep." (quoted in Engle v. Vitale, 370 U.S. 421, 434 n.20 (1962)). Thus, to be complete, it should be noted that antiestablishment principles served to prevent the union of church and state from "destroy[ing] government and . . . degrad[ing] religion." Engle, 370 U.S. at 431.

^17. In holding that any constitutional provision "obviously intended for the exclusive purpose of restraining the exercise of power by [the federal government]" was not enforceable against the various states, Chief Justice Marshall wrote:

The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for different purposes.

Barron, 32 U.S. at 247.

^18. Scholars then and now have argued that this direction is problematic at best. See, e.g, Corwin, A Constitution of Powers in a Secular State 113-116 (arguing that the Establishment Clause does not protect any individual freedom); Amar, supra at 33 ("[T]he nature of the states' establishment-clause right against federal disestablishment makes it quite awkward to mechanically 'incorporate' the clause against the states via the Fourteenth Amendment.").

^19. However, at least two circuit courts have heard challenges to the permitting process in 50 C.F.R. § 22.22 and have applied the RFRA compelling interest test. In Gibson v. Babbitt, 223 F.3d 1256 (11th Cir. 2000), and United States v. Hugs, 109 F.3d 1375 (9th Cir. 1997), the courts held that 50 C.F.R. § 22.22 did not violate RFRA. Gibson 223 F.3d at 1258 (holding that the permitting system was the least restrictive means of advancing the government's compelling interest in "fulfilling its treaty obligations with federally recognized Indian tribes"); Hugs, 109 F.3d at 1378 ("We are also satisfied the statute and permit system provide the least restrictive means of conserving eagles while permitting access to eagles and eagle parts for [Native American] religious purposes."). Because we do not apply a RFRA analysis in this case, however, neither Gibson nor Hugs are apposite.

^20. Furthermore, though not implicated by the instant case, eagles are also protected by the Bald and Golden Eagle Protection Act. 16 U.S.C. § 668a. In setting out the need for the Bald and Golden Eagle Protection Act, the House Committee explained that "[c]ertain feathers of the golden eagle are important in religious ceremonies of some Indian tribes and a large number of the birds are killed to obtain these feathers . . . . As a result of these activities . . . there is grave danger that the golden eagle will completely disappear." H.R. Rep. No. 87-1450 at 2 (1962). Thus, action has repeatedly been taken by Congress because of the "need to preserve [eagle] species." United States v. Dion, 476 U.S. 734, 745 (1986).

^21. We do not reach more specific questions which may arise later under 50 C.F.R. § 22.22 such as whether a bona fide Native American who is not a member of a federally recognized tribe may constitutionally be excluded from the exemption.

^1.In Kikumura, we based our decision on the federal government's remedial power and did not independently evaluate whether RFRA remains constitutional when applied to a federal criminal law that is neutral and generally applicable. Because the establishment clause checks the enforcement of the free exercise clause, it is conceivable that at some point too much religious protection becomes itself unconstitutional. If that constitutional ceiling on religious exercise is inherent in the Court's reasoning in Smith, then RFRA suffers an additional constitutional defect. I depart from portions of the majority's establishment clause analysis, but disposition of this case does not necessitate that I elaborate my argument.

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