United States v. Hardman

TACHA, Chief Judge.^**

Appellants Raymond S. Hardman and Samuel Ray Wilgus, Jr. were convicted for unrelated counts of illegally possessing eagle feathers in violation of sections 703 and 668(a) of Title 16 of the United States Code, respectively. Appellee Joseluis Saenz had eagle feathers in his possession seized by the Bureau of Indian Affairs, but was not criminally prosecuted.¹ He made a motion pursuant to Fed.R.Crim.P. 41(e) for the return of the feathers, and the district court granted the motion. The cases initially came to three separate panels of this court. Because of the conflicting panel outcomes and the factual and legal similarities among the cases, we simultaneously issued and vacated the panel opinions, and then sua sponte ordered that the cases be reheard en banc. United States v. Hardman, 260 F.3d 1199 (10th Cir.2001); see United States v. Wiles, 102 F.3d 1043, 1047 n. *, 1056 (10th Cir.1996) (hearing issue as an en banc court before release of the panel decisions). We exercise jurisdiction pursuant to 28 U.S.C. § 1291, hold that the Religious Freedom Restoration Act controls all three cases, REMAND to the district court with respect to Mr. Hardman and Mr. Wilgus, and AFFIRM with respect to Mr. Saenz.

I. Background

A. Hardman

Mr. Hardman has been a practitioner of a Native American religion for many years. Although Mr. Hardman is not of Native American descent, his ex-wife and two children are enrolled members of the S’Kallum Tribe, a federally recognized tribe located in Washington State. Mr. Hardman resides within the boundaries of the Uintah and Ouray Reservation in Neo-la, Utah.

In 1993, when Mr. Hardman was still married to and living with his ex-wife, his son’s godfather died. 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 he had used to transport the body. Mr. Hardman claims that the feathers “hold a special prayer for me, my family, and the automobile they were in.” After returning to his home, Mr. Hardman contacted the Utah Division of Wildlife Resources in order to obtain a permit to possess the feathers. He was informed, however, that he would not be allowed to apply because he was not a member of a federally recognized tribe.

Several years later, after Mr. Hardman and his wife separated, Mr. Hardman’s estranged wife informed Ute tribal officers 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.² 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 (“MBTA”), 16 U.S.C. § 703. Mr. Hardman was not charged with a violation of the Bald and Golden Eagle Protection Act (“BGEPA”). On February 25, 1999, a bench trial was held before a magistrate judge. The court found Mr. Hard-man guilty of violating the MBTA, sentenced him to pay a small fine, and placed him on two years’ bench probation. Mr. Hardman appealed to the district court, which affirmed his conviction.

Mr. Hardman then appealed to this court. Mr. Hardman argued that he had been prosecuted in a selective and discriminatory manner that violated his equal protection rights, and that the citing officer was acting outside the scope of his authority when he demanded that Mr. Hardman surrender the eagle feathers. Mr. Hardman also argued that the regulations violated his free exercise rights and ran afoul of the Establishment Clause. In oral argument before the en banc court, however, he waived the Establishment Clause issue. While Mr. Hardman argued in his motion to dismiss before the magistrate judge that the regulations violated the Religious Freedom Restoration Act (“RFRA”), he did not argue this on appeal to the district court or to this court. A divided panel of this court affirmed his conviction.

B. Wilgus

Like Mr. Hardman, Mr. Wilgus is not of Native American descent and is not a member of any federally recognized tribe, although he practices a Native American religion.³ Mr. Wilgus resides in Layton, Utah.

In June 1998, a Utah Highway Patrol Officer pulled over a speeding Mazda pickup truck in which Mr. Wilgus was a passenger. After arresting the driver for driving on a suspended license, the officer searched the truck and discovered 187 bald and golden eagle feathers that belonged to Mr. Wilgus.⁴ Mr. Wilgus’s wife later produced an additional four bald and golden eagle feathers. Mr. Wilgus admits that he knowingly possessed all 141 eagle feathers and did not have a permit from the U.S. Fish and Wildlife Service authorizing possession of the feathers.

In February 1999, the Government charged Mr. Wilgus with two counts of possessing bald and golden eagle feathers without a permit in violation of the BGE-PA, 16 U.S.C. § 668(a). Mr. Wilgus entered a conditional plea of guilty, subject to resolution of his constitutional claims. He received a small fine and twelve months’ probation. Mr. Wilgus then appealed to this court, citing the Free Exercise Clause and the Establishment Clause as grounds for appeal. In oral argument before the en banc court, however, he waived the Establishment Clause issue. While Mr. Wilgus raised RFRA in his motion to dismiss, the district court dismissed this claim in light of City of Boerne v. Flores, 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (holding that RFRA was not a valid exercise of Congress’s Enforcement Clause powers). He did not appeal this issue. A divided panel of this court affirmed his conviction.

C. Saenz

Joseluis Saenz is a lineal descendant of the Chiricahua Apache. Chiricahua have been included as members of other, federally recognized Apache tribes, and there was once a Chiricahua Reservation. Since at least 1886, however, the Chiricahua have not been a federally recognized tribe.

Mr. Saenz follows the beliefs and traditions of the Chiricahua Apache religion. Eagle feathers are an integral part of his religious practices. In 1996, while New Mexico state officials were executing a search warrant at Mr. Saenz’s home as part of an investigation unrelated to this case, the officers noticed items with eagle feathers hanging on the walls. Mr. Saenz had obtained these feathers as gifts in connection with various ceremonies. After contacting the U.S. Fish and Wildlife Service and determining that Mr. Saenz did not have a permit for the feathers, the officers seized the items and sent them to the Fish and Wildlife Service office in Albuquerque.⁵ In March 1997, the government brought criminal charges against Mr. Saenz under the BGEPA, 16 U.S.C. § 668(a), but the charges were dismissed on the government’s motion in July 1997. After attempting to retrieve his feathers through administrative proceedings,⁶ Mr. Saenz filed a motion in federal district court under Fed.R.Crim.P. 41(e) for the return of property seized by a search warrant. Mr. Saenz initially brought his claims under the BGEPA and RFRA, the Free Exercise Clause, and the Equal Protection Clause. The government moved to have the 41(e) motion treated as a civil complaint, but the district court denied the government’s motion. The district court granted Mr. Saenz’s motion and ordered the return of the feathers. The court did not consider the constitutional grounds, and based its decision entirely upon the BGEPA and RFRA. The United States appealed, arguing that the district court’s analysis under RFRA was erroneous. The United States also argued on appeal that the district court failed to give deference to the Secretary of the Interior’s interpretation of the BGEPA’s exception for “Indian tribes,” as required by Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).⁷ A panel of this court found for Mr. Saenz under RFRA, and affirmed.

We now consider the parties’ arguments en banc.

II. Discussion

A Standard of Review

We review questions of law de novo. United States v. Smart, 278 F.3d 1168, 1172 (10th Cir.2002). We review a district court’s factual determinations for clear error. United States v. Callarman, 273 F.3d 1284, 1287 (10th Cir.2001).

We review the grant of a Rule 41(e) motion for an abuse of discretion. United States v. Grover, 119 F.3d 850, 851 (10th Cir.1997). Under this standard we do not defer to the district court’s legal conclusions. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) (“A district court by definition abuses its discretion when it makes an error of law.... The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.”).

B. Standing

Before reaching the merits, we must first consider whether claimants have standing to bring suit in federal court. The government asserts that none of the claimants has standing because they never actually applied for permits.⁸ 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. E.g., United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir.1997) (per curiam); United States v. Lundquist, 932 F.Supp. 1237, 1242 n. 5 (D.Or.1996). When, however, it would have been futile for a claimant to apply for a benefit, courts have not denied the claimant standing because of his failure to apply. Jackson-Bey v. Hanslmaier, 115 F.3d 1091, 1096 (2d Cir.1997) (“Th[e] threshold requirement for standing may be excused only where a plaintiff makes a substantial showing that application for the benefit ... would have been futile”) (but denying standing because facts did not show futility) (citing Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 363-67, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)); see also, e.g., Ellison v. Connor, 153 F.3d 247, 255 (5th Cir.1998) (finding standing where claimants had not applied for a permit to build, but had been told previously that no construction of any structure would be permitted on their land); Desert Outdoor Adver., Inc. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir.1996) (claimants had standing to challenge permitting process for signs, because City had previously sued for removal of signs, and because ordinance “flatly prohibited” signs). The government acknowledges that each claimant would have been denied a permit based on his failure to fulfill the requirement of membership in a federally recognized tribe.⁹ Indeed, the application itself requires certification of membership. Because it would have been futile for these individuals to apply for permits, we find that they have standing to challenge the statutory and regulatory scheme.

C. The Statutory Protection of Bald and Golden Eagles

The Migratory Bird Treaty Act (“MBTA”) and the Bald and Golden Eagle Protection Act are two of our nation’s oldest conservation statutes. Congress enacted these statutes against the background of the Migratory Bird Treaties.¹⁰

To fulfill the obligations of these treaties, Congress enacted the Migratory Bird Treaty Act, which provides that “it shall be unlawful ... to ... possess [or] purchase ... any migratory bird, any part, nest, or egg of any such bird, or any product ... which consists ... of any such bird or any part, nest, or egg thereof.” 16 U.S.C. § 703. Section 704 of the Act authorizes the Secretary of the Interior to promulgate necessary regulations to allow hunting or possession of migratory birds “in order to carry out the purposes of the conventions.” Section 707 provides for fines of up to $15,000 and/or imprisonment for up to six months for violations of the MBTA, the conventions, or the regulations.

The Bald and Golden Eagle Protection Act makes clear in its enacting clause that its purpose is to protect the bald eagle from extinction. Bald Eagle Protection Act, ch. 278, 54 Stat. 250 (1940) (codified as amended at 16 U.S.C. §§ 668-668d); see also Andrus v. Allard, 444 U.S. 51, 52-53, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979) (noting that the BGEPA and the MBTA are “designed to prevent the destruction of certain species of birds”). While the original 1940 Act only protected the bald eagle, it was extended in 1962 to protect golden eagles, which are easily confused with bald eagles, and to allow Indians to use eagle parts in religious ceremonies. Matthew Perkins, The Federal Indian Trust Doctrine and the Bald and Golden Eagle Protection Act: Could Application of the Doctrine Alter the Outcome in U.S. v. Hugs?, 30 Envtl. L. 701, 705 (2000). The text of the Act provides that “[w]hoever, without being permitted to do so ... shall knowingly ... take, possess, sell, [or] purchase ... any bald eagle commonly known as the American eagle, or any golden eagle ... or any part, nest, or egg thereof ... shall be fined not more than $5,000 or imprisoned not more than one year or both.” 16 U.S.C. § 668. Section 668a grants the Secretary of the Interior a broader permitting power than does the MBTA. The Secretary may authorize permits — so long as they are compatible with the preservation of the eagles — for public museums, scientific societies, zoos, Indian religious uses, wildlife protection, and agricultural protection. The Secretary may also permit the taking of golden eagle nests that interfere with resource development.

The two acts share regulations. Under these regulations, eagles are migratory birds covered by the treaties. 50 C.F.R. § 10.13. An individual may not possess or transport bald or golden eagle parts, nests, or eggs, unless a permit is obtained from the Federal government. Id. § 22.11.¹¹ Rather, dead eagle parts and feathers are sent to the National Eagle Repository in Commerce City, Colorado. The Repository receives eagles and eagle parts and distributes them to permit holders on a first-come first-served basis.¹² Demand exceeds supply, however, and, according to a Fish and Wildlife Service official who testified in Mr. Saenz’s case, successful permit applicants wait three years for an eagle carcass and six to nine months for loose feathers.

The Secretary of the Interior may grant permits to “members of Indian entities recognized and eligible to receive services from the United States Bureau of Indian Affairs ... engaged in religious activities ....” Id. § 22.22. A permit is not automatically issued if these criteria are met, however, as the government will still consider the effect that the permit would have upon the wild populations of bald or golden eagles and whether the applicant is participating in bona fide tribal religious ceremonies. Id. § 22.22(c)(1)-(2). The regulations also create permit exemptions for scientific and exhibition purposes, id. § 22.21, for eagles that prey upon livestock or damage agriculture, id. § 22.23, and for falconry purposes, id. § 22.24. The regulations further indicate.that eagles or eagle parts possessed under such a permit may not be transferred, except to be handed down from generation to generation or from Indian to Indian in accordance with tribal or religious custom. Id. § 22.22(b)(1).

D. Sua Sponte Consideration of RFRA

Having examined the scope 'of the BGEPA and the MBTA, we must next consider whether to apply RFRA to Mr. Hardman and Mr. Wilgus, who did not preserve this issue for appeal. “The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.” Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976). However, the general rule is that this court will not exercise that power, and will not consider issues not raised by the parties on appeal. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720 (10th Cir.1993) (citing Singleton, 428 U.S. at 120, 96 S.Ct. 2868). The overriding rationale for this policy is that it is “essential in order that parties may have the opportunity to offer all the evidence that they believe relevant to the issues ... [and] in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.” Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1538-39 (10th Cir.1996) (quoting Singleton, 428 U.S. at 120, 96 S.Ct. 2868).

Our cases have also made clear, however, that “in some circumstances, resolution of issues not raised below is justified.” Id. at 1538. Assuming that the constitutional requirement of a “case and controversy” would still be met by considering the issue,¹³ the rule is prudential, and “a court may consider an issué ‘antecedent to ... and ultimately dispositive of the dispute before it, even an issue the parties fail to identify and brief.” U.S. Nat’l Bank v. Indep. Ins. Agents, 508 U.S. 439, 447, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993) (citing Arcadia v. Ohio Power Co., 498 U.S. 73, 77, 111 S.Ct. 415, 112 L.Ed.2d 374 (1990)).¹⁴ In light of these concerns, we consider whether to apply RFRA to Mr. Hardman’s and Mr. Wilgus’s cases.

We conclude that the unique procedural posture of this case makes sua sponte consideration of RFRA appropriate. The order of this court mandating that the cases be reheard en banc requested that all parties brief the RFRA issue— including whether the court should consider RFRA in Mr. Hardman’s and Mr. Wilgus’s eases at all. The RFRA issue was raised in all three trial courts, and was briefed and argued by the United States before the Saenz panel of this court. All parties were thus put on notice that the RFRA issue would be raised, and all had an opportunity to brief the issue. Therefore, “[i]t would not satisfy any policy behind the rule to turn our back on this significant question.” Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1229 (10th Cir.1996) (finding that where the issue was raised in a reply brief in the district court, where both parties had briefed the issue on appeal, and where judicial resources would be conserved by considering the issue sua sponte, that such action was warranted).

Moreover, several other concerns weigh in favor of considering the issue. It is well-established that “the proper administration of the criminal law cannot be left merely to the stipulation of parties.” Young v. United States, 315 U.S. 257, 259, 62 S.Ct. 510, 86 L.Ed. 832 (1942); see also DeRoo v. United States, 223 F.3d 919, 926 (8th Cir.2000) (“Although [defendant] has not raised this issue, appellate courts can examine a critical issue affecting substantial rights sua sponte in criminal cases under Federal Rule of Criminal Procedure 52(b).”). Both Mr. Hardman’s and Mr. Wilgus’s cases are criminal in nature. In addition, it is well-settled that federal courts should avoid deciding constitutional issues when statutory issues are dispositive. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 112, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (Stevens, J., concurring) (citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 346, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring)); Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (“Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.”). Deciding this case on RFRA grounds allows us to avoid the First Amendment issue.

The holding here is extremely narrow. We consider this issue sua sponte only because all parties were put on notice by the en banc order, and then only because the adversely affected party — the United States — had an opportunity ho develop a factual record in the district court in one of the consolidated cases. Thus, the prudential concerns that normally weigh against sua sponte consideration are not present here. Moreover, the fact that the cases are criminal in nature and present a statutory question that allows us to avoid complex constitutional issues adds prudential concerns in support of considering the RFRA issue. In these somewhat unique circumstances, we exercise our discretion, and consider the RFRA issue.¹⁵

E. The Religious Freedom, Restoration Act of 1993

Congress enacted the Religious Freedom Restoration Act against the background of Free Exercise Clause law. The “religion clauses” of the First Amendment provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. In Sherbert v. Verner, the Court determined that “any incidental burden on the free exercise of appellant’s religion [must] be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.’ ” 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)).¹⁶ Although the precise language of the test has changed somewhat, the essence of the inquiry remained the same throughout the 1970’s and 80’s: The state must demonstrate that the law in question is narrowly tailored to achieve a compelling government interest. Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989) (“The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.”); Thomas v. Review Bd., 450 U.S. 707, 718, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”); Gillette v. United States, 401 U.S. 437, 462, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971) (“The incidental burdens felt by persons in petitioners’ position are strictly justified by substantial governmental interests that relate directly to the very impacts questioned.”).

A series of cases in the late 1980s, however, indicated a 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, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (prison regulations); Bowen v. Roy, 476 U.S. 693, 707-08, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986) (internal government activities); Goldman v. Weinberger, 475 U.S. 503, 507-08, 106 S.Ct. 1310, 89 L.Ed.2d 478 (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 Employment Division v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). There, practitioners of a Native American religion asked the Court to apply strict scrutiny to a statute restricting the use of peyote. Not only did the Court refuse to create the accommodation, it ruled 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, 110 S.Ct. 1595 (quoting United States v. Lee, 455 U.S. 252, 263 n. 3, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (Stevens, J., concurring)), and that such a law need not be justified by a compelling interest even where religious practice is substantially burdened, id. at 888-89, 110 S.Ct. 1595. In effect, Smith creates a “safe harbor” — if the law is “a valid and neutral law of general applicability,” then it must simply be rationally related to a legitimate government end.

In response to the Court’s decision in Smith, Congress passed the Religious Freedom Restoration Act of 1993. S. Rep. 103-111, 1993 U.S.C.C.A.N. 1892, 1893 (“[T]he Religious Freedom Restoration Act of 1993[ ] responds to the Supreme Court’s decision in Employment Division, Department of Human Resources of Oregon v. Smith by creating a statutory prohibition against government action substantially burdening the exercise of religion.”). RFRA states: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.” 42 U.S.C. § 2000bb-1(a). Subsection (b) provides that “[g]overnment 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.” Id. § 2000bb-1(b).

The Supreme Court, in City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), held that Congress lacked authority to enact such a law through the Enforcement Clause of the Fourteenth Amendment, thus making RFRA inapplicable to actions against the states. After City of Boeme, however, it remained an open question whether RFRA created an extra-constitutional statutory claim against the federal government, justified through its Article I, section 8 “necessary and proper” powers. We recently answered that question in the affirmative. Kikumura v. Hurley, 242 F.3d 950, 959 (10th Cir.2001) (“[T]he separation of powers concerns expressed in Flores do not render RFRA unconstitutional as applied to the federal government.”). Because claimants challenge federal law, it is appropriate to consider RFRA, even in light of City of Boerne.

Here, the government does not dispute that claimants’ beliefs are sincerely held or that the regulations represent a substantial burden upon claimants’ religious beliefs. The eagle feather is sacred in many Native American religions, including claimants’.¹⁷ Any scheme that limits their access to eagle feathers therefore must be seen as having a substantial effect on the exercise of religious belief. United States v. Thirty-Eight Golden Eagles, 649 F.Supp. 269, 276 (D.Nev.1986), aff'd 829 F.2d 41 (9th Cir.1987). Given this, we next consider whether the regulations governing the BGEPA and MBTA: (1) advance a compelling government interest; and (2) are the least restrictive means of furthering that interest.

1. Compelling Interests

Whether something qualifies as a compelling interest is a question of law. Citizens Concerned About Our Children v. School Bd., 193 F.3d 1285, 1292 (11th Cir.1999); Concrete Works of Colo., Inc. v. City and County of Denver, 36 F.3d 1513, 1522 (10th Cir.1994). There is, however, little guidance from the Supreme Court in determining what qualifies as a compelling interest. In Wisconsin v. Yoder, the Court defined a compelling interest as “only those interests of the highest order.” 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“[O]nly those interests of the highest order and not otherwise served can overbalance legitimate claims to the free exercise of religion.”). In Sherbert v. Verner, the Court stated that “[o]nly the gravest abuses, endangering paramount interest, give occasion for permissible limitation.” 374 U.S. 398, 406, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (quoting Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945)). Examples of compelling interests include maintaining the tax system, Hernandez v. Comm’r, 490 U.S. 680, 699, 109 S.Ct. 2136, 104 L.Ed.2d 766 (1989), enforcing participation in the social security system, United States v. Lee, 455 U.S. 252, 258-59, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982), and protecting children’s welfare, Prince v. Massachusetts, 321 U.S. 158, 166-67, 64 S.Ct. 438, 88 L.Ed. 645 (1944). We have held, however, that a desire for federal funds is not a compelling interest, Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1280 (10th Cir.1996), while the Eighth Circuit has held that the interests advanced by the bankruptcy system are not compelling. In re Young (Christians v. Crystal Evangelical Free Church), 82 F.3d 1407, 1420 (8th Cir.1996).

Given these broad contours, we consider the interests that the United States argues are compelling: (a) protecting eagles and (b) preserving Native American culture and religion and pursuing the federal government’s trust obligations to Native American tribes.

a. Protecting Eagles

There is dicta from the Supreme Court indicating that the protection of migratory birds might qualify as a compelling interest. Missouri v. Holland, 252 U.S. 416, 435, 40 S.Ct. 382, 64 L.Ed. 641 (1920) (referring to the protection of migratory birds as “a national interest of very nearly the first magnitude.”). We cannot ignore that the migratory bird in question here is the symbol of our nation, heightening the government’s interest in keeping the species viable.¹⁸ Moreover, most other courts that have addressed this issue have agreed that the preservation of eagle species represents a compelling interest. United States v. Oliver, 255 F.3d 588, 589 (8th Cir.2001); United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir.1997) (per curiam); Gibson v. Babbitt, 72 F.Supp.2d 1356, 1360 (S.D.Fla.1999), aff'd, 223 F.3d 1256 (11th Cir.2000).

Claimants assert that the increased number of bald and golden eagles undercuts the compelling nature of the government’s interest. This view finds some limited support in the case law. United States v. Abeyta, 632 F.Supp. 1301, 1307 (D.N.M.1986) (finding that the record did not support a compelling interest in golden eagle preservation); cf. Horen v. Commonwealth, 23 Va.App. 735, 479 S.E.2d 553, 559-560 (1997) (finding that, because the state had not shown that owls were endangered, there was no compelling interest in their preservation). We disagree. The bald eagle would remain our national symbol whether there were 100 eagles or 100,000 eagles. The government’s interest in preserving the species remains compelling in either situation. What might change depending on the number of birds existing is the scope of a program that we would accept as being narrowly tailored as the least restrictive means of achieving its interest. Thus, we agree that the government’s interest in preserving eagle populations is compelling.

b. Protecting Native American Culture/Treaty Obligations

The government also asserts a compelling interest in preserving Native American culture and religion. The government is correct that it has a longstanding obligation to preserve Native American cultures. Along with Congress’s power to “regulate Commerce ... with the Indian Tribes” comes an obligation of trust to protect the rights and interests of federally recognized tribes and to promote their self-determination. Morton v. Mancari, 417 U.S. 535, 552, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) (quoting U.S. Const. art. I, § 8, cl. 3); see also Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557, 8 L.Ed. 483 (1832); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16, 8 L.Ed. 25 (1831). Thus, we have little trouble finding a compelling interest in protecting Indian cultures from extinction, growing from government’s “historical obligation to respect Native American sovereignty and to protect Native American culture.” Rupert v. Director, U.S. Fish & Wildlife Serv., 957 F.2d 32, 35 (1st Cir.1992); see also Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1216 (5th Cir.1991) (noting that preservation of Indian culture is “fundamental to the federal government’s trust relationship with tribal Native Americans”).

In a closely related argument, the government urges that the “unique guardian-ward relationship between the federal government and Native American tribes” allows the permitting scheme to avoid strict scrutiny altogether. It is true that, based on this trust relationship, Congress possesses an “extraordinarily broad” power to legislate with respect to Indian tribes, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978), and categories respecting Native Americans are sometimes political, rather than religious or racial distinctions, United States v. Antelope, 430 U.S. 641, 645-46, 97 S.Ct. 1395, 51 L.Ed.2d 701 (1977). As a result, laws that “might otherwise be constitutionally offensive” might be acceptable if they are enacted pursuant to the United States’ trust relationship. Washington v. Confederated Bands & Tribes of the Yakima Indian Nation, 439 U.S. 463, 501, 99 S.Ct. 740, 58 L.Ed.2d 740 (1979) (citing Mancari, 417 U.S. at 551-52, 94 S.Ct. 2474). The Supreme Court has therefore held that limited hiring preferences for Native Americans at the Bureau of Indian Affairs did not constitute unlawful race discrimination. Mancari, 417 U.S at 553-54, 94 S.Ct. 2474. Other circuits have extended this principle to the Establishment Clause context. Rupert, 957 F.2d at 35 (rejecting a non-Native American’s Establishment Clause challenge to permit regulations under the BGEPA); Thornburgh, 922 F.2d at 1217 (finding no Establishment Clause violation where federal law exempted members of the Native American Church from a prohibition on peyote possession); see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 540, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (Kennedy, J., and O’Connor, J.) (“In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases.”).

However, such analysis is irrelevant in the RFRA context. RFRA plainly commands that a federal program that substantially burdens religion must be the least restrictive means of achieving a compelling government interest. Our focus here, under RFRA, is not whether the government may set up a different system for tribal adherents of Native American religions than for non-tribal adherents. Rather, it is whether the government may burden the religious beliefs of non-tribal adherents in the first place.

In sum, the government’s general interests in preserving Native American culture and religion in-and-of-themselves and in fulfilling trust obligations to Native Americans remain compelling interests.¹⁹ The government’s plenary power to legislate with respect to Native American Tribes does not, however, in the context of a RFRA challenge, reheve the government of its burden to prove that the statute and regulations constitute the least restrictive means of achieving its goals.

2. Least Restrictive Means

The two dispositive questions under RFRA are whether application of the permitting process to claimants furthers the government’s compelling interests, and whether it is the “least restrictive means” of furthering those interests. 42 U.S.C. § 2000bb-1(b). This statutory language must guide our analysis.

The statute directs that, in interpreting “least restrictive means,” courts should view the Act as “restor[ing] the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15.” 42 U.S.C. § 2000bb(b); see also S. Rep. 103-111, 1993 U.S.C.C.A.N. 1892, 1898 (“The Religious Freedom Restoration Act of 1993 is intended to restore the compelling interest test previously applicable to free exercise cases.... The committee expects that the courts will look to free exercise cases decided prior to Smith for guidance in determining whether the exercise of religion has been substantially burdened and the least restrictive means have been employed in furthering a compelling governmental interest.”); id. at 1898 (“Therefore, the compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”). In the context of these cases, “least restrictive means” is a severe form of the more commonly used “narrowly tailored” test. Sherbert, 374 U.S. at 407, 83 S.Ct. 1790 (“[E]ven if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work, it would plainly -be incumbent upon the appellees [i.e., the government] to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights.”) Id. at 407, 83 S.Ct. 1790 (emphasis added); Yoder, 406 U.S. at 215, 92 S.Ct. 1526 (“The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”) (emphasis added); see also Hialeah, 508 U.S. at 546, 113 S.Ct. 2217 (“The proffered objectives are not pursued with respect to analogous non-religious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. The absence of narrow tailoring suffices to establish the invalidity of the ordinances.”). Given these contours, we evaluate the regulatory scheme for the BGEPA and MBTA to determine whether they are sufficiently narrowly tailored and represent the least restrictive means of achieving a compelling interest.

We next address the proper standard of review for evaluating a trial judge’s determination that a law represents the least restrictive means of achieving a compelling interest. We are aware of only one circuit that has addressed whether “least restrictive means” in the context of RFRA is a legal issue, a factual issue, a mixed question of law and fact, or a question of constitutional fact.²⁰ However, due to the dearth of factual findings on the records before us, we need not address that question today. Irrespective of which particular standard of review we use, the burden of building the record.for our review falls upon the United States. Werner v. McCotter, 49 F.3d 1476, 1480 n. 2 (10th Cir.1995). Mere speculation is not enough to carry this burden. Sherbert, 374 U.S. at 407, 83 S.Ct. 1790 (“The[State] suggests no more than a possibility that the filing of fraudulent claims by unscrupulous claimants feigning religious objections to Saturday work might not only dilute the unemployment compensation fund but also hinder the scheduling by employers of necessary Saturday work.... [T]here is no proof whatever to warrant such fears of malingering or deceit as those which the [State] now advanee[s].”); Yoder, 406 U.S. at 224-25, 92 S.Ct. 1526 (calling for “specific evidence” of the interests advanced and how accommodation would affect them); Werner, 49 F.3d at 1480 (stating that “the state must do more than simply offer conclusory statements” to satisfy its burdens) (citation omitted).

For the reasons set forth below, in the absence of any factual record in Hardman and Wilgus, it is appropriate to remand for factfinding under any standard of review. Similarly, it is appropriate to affirm the district court in Saenz whether we subject a district court’s determination on the least restrictive means to de novo review, or merely for clear error.

F. Application to Hardman, Wilgus, and Saenz

1. Hardman and Wilgus

The government bears the burden of budding a record that proves that the statutory and regulatory scheme in question is the least restrictive means of advancing the government’s compelling interests. In these two cases, the RFRA claims were dismissed in light of City of Boerne as a matter of law before trial. The government thus has not had an opportunity to build a record with respect to either case. We therefore REMAND these cases to afford both parties an opportunity to develop a record, and for a determination as to whether these regulations represent the least restrictive means of advancing the government’s interests.

2. Saenz

We are in a different situation with regard to Mr. Saenz. The government did build a record in the district court with respect to Mr. Saenz. Therefore, we examine the record to determine if the government has carried its burden of proving the least restrictive means of carrying out its interests. First, however, the government claims at oral argument that we should remand because the district court failed to convert Mr. Saenz’s action, which was brought under Rule 41 of the Federal Rules of Criminal Procedure, into a civil action. Such a conversion would require that the suit be governed by the Federal Rules of Civil Procedure, giving the government access to full discovery, depositions, and the like.

It is true that when criminal charges have been dismissed, a court should treat a Rule 41(e) motion as a civil complaint. United States v. Clark, 84 F.3d 378, 381 (10th Cir.1996). However, the government raised this argument for the first time on appeal in a footnote in its en banc brief. Arguments raised in a perfunctory manner, such as in a footnote, are waived. United States v. White, 879 F.2d 1509, 1513 (7th Cir.1989). Unlike the broader RFRA question, we did not direct briefing on this argument, and Mr. Saenz was not put on notice at any other point during this appeal or through the Hardman or Wilgus briefs that we might consider this issue on appeal. Additionally, we cannot say that the government was substantially prejudiced by the lower court’s denial of the government’s motion to treat the 41(e) motion as a civil complaint, as the lower court conducted a thorough two day evidentiary hearing, with witnesses called by both sides. We therefore decline to consider the question sua sponte, and we consider the record as it stands before us. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720 (10th Cir.1993) (citing Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976)) (noting that the general rule is not to consider issues that a party has not raised on appeal).

We move on, then, to the question of whether the government has met its burden of proving that the permitting scheme is the least restrictive means of advancing its compelling interests. We note at the outset that the government relies in part upon a number of cases in which courts have held that the regulations at issue here are the least restrictive means of advancing the government’s interests. See, e.g., Rupert, 957 F.2d at 35-36 (“The exemption, therefore, does not merely serve the government’s interests ... it sets them in equipoise.... Any diminution of the exemption would adversely affect the former interest [in protecting Native American culture], but any extension of it would adversely affect the latter [in protecting eagles].”). While we would generally give weight to such persuasive authority, we are unable to do so given the poorly developed record in the cases at hand. Here, as we explain below, the government has failed to demonstrate how the current regulations serve each of its asserted interests — a necessary step in the process of showing that the regulations are the least restrictive means of serving the government’s interests. The record is devoid of hard evidence indicating that the current regulations are narrowly tailored to advance the government’s interests, and it does not address the possibility of other, less restrictive- means of achieving these interests. We therefore find that, on the record presented in Saenz, the government has failed to show that limiting permits for eagle feathers only to members of federally recognized tribes is the least restrictive means of advancing the government’s interests in preserving eagle populations and protecting Native American culture.

a. Protecting Eagles

We first consider how excluding sincere practitioners of Native American religions who are not members of federally recognized tribes from applying for permits advances the, government’s interest in preserving the eagle population. Presumably, expanding the permit. process to include non-Native American adherents would have no effect on bird populations- — as long as the total number of permits available stayed constant, such an expansion would at worst create a longer wait list for parts. We do not, however, make rulings on presumptions. Instead, it is incumbent upon the government to build a record that either contradicts or confirms these presumptions.

Here, the government has not carried its burden. The government offers two arguments. First, the government presented an estimate- of the number of members of federally-recognized tribes versus . the number of Americans who identify themselves as having Indian ancestry. The apparent purpose of these estimates is to support an extrapolation that expanding the permitting process would expand the number of permit applicants, thereby further endangering eagle populations. The record contains no evidence indicating that increased permit applications would place increased pressure on eagle populations. Such a result seems highly unlikely, especially since the impact upon eagle populations is an explicit consideration in determining whether or not to grant a permit. Moreover, the data provided are largely irrelevant. The relevant comparison is between members of federally recognized tribes who hold the eagle feather as sacred and other persons who hold a sincere religious belief that the eagle feather is sacred. The government’s estimation process is akin to attempting to extrapolate the number of practicing Catholics in the country by identifying the number of Irish-Americans. We will not engage in such extrapolation here.

Second, the government argues that increasing the wait for parts will increase poaching. As evidence, it cites cases in which practitioners from federally recognized tribes poached eagles rather than waiting for parts. From this, the government asks us to extrapolate that more applicants will lead to longer waits, which will lead to more poaching and further endanger the eagle. Assuming arguendo that there will be an increased wait for parts, the government’s poaching argument misses the mark. The fact that some members of federally recognized tribes have poached eagles rather than waiting for parts does hot, absent additional evidence, lead to the conclusion that increased waits will result in sufficient poaching to frustrate the government’s interest in protecting eagle populations. In the absence of additional evidence, the opposite conclusion seems equally plausible. While the wait might increase for members of federally recognized tribes, it would decrease for sincere practitioners who are not members of federally recognized tribes, who currently have no legal access to eagle parts for religious purposes. This approach could result in an offsetting decrease in poaching by people who are not members of federally recognized tribes. People with no opportunity to receive eagle feathers might be more likely to poach than those who must simply wait. At any rate, these questions remain unanswered in the record in this case, and it was incumbent upon the government to answer them.²¹

b. Protecting Native American Culture

We next consider to what degree excluding non-tribal members from the permitting scheme advances the government’s interest in preserving Native American cultures and fulfilling trust obligations. We find that the United States has failed to build an adequate record on this question. The only evidence offered by the government that Native American culture would be endangered by expanding the permitting process to include all bona fide practitioners of Native American faiths is the speculative testimony of a Fish and Wildlife Service official, similar testimony from a member of the Mescale-ro Apache tribe, and evidence that there is currently a wait for parts.²² The government cannot carry its burden through mere speculation. The government has failed to present any hard evidence that there are substantial numbers of individuals who are not members of federally recognized tribes, but who are sincere practitioners of Native American faiths that hold eagle feathers to be sacred and could be expected to apply for permits. Thus, it has failed to show that broader eligibility would result in an increased wait substantial enough to endanger Native American cultures. The government gives no consideration to any offsetting increase in available parts from any recovery of bald and golden eagle population. Moreover, the government offers no evidence on the threshold question of whether allowing sincere practitioners who are not members of federally recognized tribes to possess eagle feathers, in addition to those who are members, truly threatens Native American culture. Allowing a wider variety of people to participate in Native American religion could just as easily foster Native American culture and religion by exposing it to a wider array of persons.²³

Finally, the government has offered insufficient evidence regarding its trust obligations to federally recognized Native American tribes. It has not shown, for instance, that statutory protections for eagles (apart from the exception for religious purposes) were motivated by trust obligations. Nor has it shown precisely how restricting personal, individual permits for religious purposes to members of federally recognized tribes is connected to the government’s sovereign-to-sovereign relationships with tribes. Thus, the government has not shown that broader permit eligibility would damage the government’s ability to fulfill its trust obligations.

The government has failed to demonstrate how the permitting process advances its compelling interests. It leaves far too many questions unanswered. We therefore find that it has failed to carry its burden.

c. Setting the Interests in Equipoise

As the First Circuit recognizes, and as Judge Murphy’s opinion concurring in the judgment emphasizes, the ultimate task for the district court is not to compartmentalize the interests as we do above. The First Circuit and Judge Murphy rightly point out that there is a great deal of interplay between the two compelling interests and that the ultimate test is whether the balance between the two interests struck by the government is achieved by the least restrictive means available. Infra at 1136 (Murphy, J., concurring); Rupert v. Director, U.S. Fish & Wildlife Serv., 957 F.2d 32, 35 (1st Cir.1992); see also United States v. Dion, 476 U.S. 734, 743-44, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986) (“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.... ”).

This can be conceptualized as something of a sliding scale: At one extreme is a situation where nobody can hold eagle feathers, which would maximize eagle protection and set protection of Native American cultures at zero. At the other extreme is a situation where members of federally recognized tribes who are sincere practitioners of Native American religion are given full access to all the eagle feathers they desire, which minimizes protection of eagles.²⁴ The government has essentially chosen a point somewhere along this continuum which attempts to strike some type of balance between the two extremes. The ultimate question for the court, then, is whether the point that the government has chosen constitutes means that minimize the impact on religious adherents who are not members of federally recognized tribes.

Before that ultimate question can be addressed, however, we must first determine where along that continuum the government’s present solution lies, and where other, less restrictive means would he. This analysis is a necessary predicate to determining whether the government has properly set the interests in equipoise, and it requires that we compartmentalize our analysis somewhat. On appeal, it was the government’s burden to show us how it was balancing the interests and that no other, less restrictive means existed to achieve a similar balance. From the record, we do not know how much, if at all, the government’s regulatory scheme advances the interest in protecting eagles. Judge Murphy is correct in pointing out that, viewed as a whole, the BGEPA and MBTA surely advance the interest in eagle protection; no one is questioning the constitutionality of the MBTA/BGEPA as such. Similarly, allowing only a specified number of people to apply for permits also surely advances the government’s interest. That is not questioned here either. What is questioned is how those permits are distributed. The question at the heart of this case is why an individual who is not a member of a federally recognized tribe is foreclosed from applying for a permit that may be used as a defense to criminal prosecution for possession of eagle feathers, while an identically situated individual may apply for a permit if she is a member of a federally recognized tribe. The government’s interest in preserving eagles might have something to do with the total number of people who are allowed to acquire eagle feathers, but it quite possibly has little to do with the question here, which is how those permits are distributed. We do not, however, have a sufficient factual record to state even that conclusion with certainty, and this requires us to remand in Wilgus and Hardman and is fatal to the government’s case in Saenz. The government also has not shown how many eagles exist, in what direction the eagle population is trending, how many people can be expected to apply for permits if the regulations change, how much additional delay in delivering eagle feathers to applicants could be expected under various alternative schemes, and how much such delays might impact Native American culture.

Thus, it is impossible for us to address whether the government has offered the least restrictive means of balancing the questions, because it has not established where on the above-described continuum of interests the current regulatory scheme lies, nor has it described where other, less restrictive alternatives lie on that continuum. In the end, the approach that this opinion takes is not particularly dissimilar from that contained in Judge Murphy’s concurrence; we are simply attacking the question from different ends. On remand, if the district court is presented with sufficient factual evidence to enable it to determine that the government is indeed balancing two interests, then it must proceed to an examination of the scheme under the Rupert framework as laid out in Judge Murphy’s concurring opinion and this opinion. It should determine how the government has balanced the interests and should examine whether potentially broader, less burdensome regulations would allow it to strike a similar balance. But for the purposes of this appeal, we are simply not presented with adequate factual findings to make the necessary predicate determinations before proceeding to that step in the analysis.

III. Conclusion

We have reached these conclusions on statutory grounds, which we addressed in part in order to avoid constitutional issues. See also Lyng v. Northwest Indian Cemetery Prot. Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) (“A fundamental and longstanding , principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them”). We therefore find -it Unnecessary to address Mr. Wilgus’s free exercise claim or Mr. Hardman’s free exercise and equal protection claims.

We therefore REMAND with respect to Mr. Hardman and Mr. Wilgus, and AFFIRM with respect to Mr. Saenz.

** The opinion is unanimous with respect to all but parts II.E.l.b and II.F. Judges MURPHY and BRISCOE do not join those portions of the opinion.

1 . Mr. Hardman and Mr. Wilgus are appellants, and Mr. Saenz is an appellee. For the sake of brevity we will refer to these three individuals collectively as "claimants.”

2 . In addition to being a tribal officer, Officer Murray was a cross-commissioned federal conservation officer acting under the authority of the U.S. Bureau of Indian Affairs.

3 . Mr. Wilgus claims that he is an adopted member of the Paiute Tribe of Utah. Mr. Wilgus concedes, however, that Paiute tribal law does not recognize adopted non-Indians as members of the tribe.

4 . It appears that Mr. Wilgus received his feathers as gifts oil a number of occasions from various Native Americans.

5 . The items seized included three eagle feathers, one staff with an eagle foot and seven eagle feathers, one eagle feather with a beaded shaft, one shield with horsehair and four eagle feathers, one fan with twelve eagle feathers, six eagle feathers tied together with rawhide, one small dream catcher with four generic bird "fluffies,” one quiver and four arrows with one eagle feather and twelve raptor feathers, one bustle with ninety-four eagle feathers and ten "fluffies,” and a framed print with one eagle feather.

6 . The United States admits that the only requirement for a permit that Mr. Saenz cannot fulfill is the requirement that the applicant must be a member of a federally recognized tribe.

7 . Because we conclude that the district court correctly concluded that the regulations as applied to Mr. Saenz violate RFRA, we do not reach this latter question.

8 . 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, however. Mr. Wilgus asserted in his brief on appeal that he had applied for a permit, but he provided no evidence of his application. Mr. Saenz does not contest that he never applied for a permit.

9 . In fact, Mr. Hardman made a good faith effort to apply, and he was rebuffed in exactly the same manner he would have been had he actually applied.

10 . The Migratory Bird Treaty was initially signed by the United States and Great Britain (on behalf of Canada) in 1916, and the United States has since concluded similar treaties with Mexico (1936), Japan (1972), and the former Soviet Union (1976). Larry Martin Corcoran & Elinor Colbourn, Shocked, Crushed and Poisoned: Criminal Enforcement in Non-Hunting Cases Under the Migratory Bird Treaties, 77 Denv. U.L.Rev. 359, 361 (1999). While the treaty initially listed only the economic benefits of protecting the birds as its purposes, later protocols included sport, aesthetic, scientific, and cultural purposes. See id. at 362; see also Missouri v. Holland, 252 U.S. 416, 435, 40 S.Ct. 382, 64 L.Ed. 641 (1920) (describing the need to protect birds as food sources and to consume insect pests). The convention with Great Britain provides that “as an effective means of preserving migratory birds there shall be established ... close seasons during which no hunting shall be done except for scientific or propagating purposes under permits issued by proper authorities.” Convention for the Protection of Migratory Birds, Aug. 16, 1936, U.S.-Gr. Brit., art. II, 39 Stat. 1702, 1703. The treaty with Mexico requires the protection of migratory birds by means "which will permit, in so far as the respective high contracting parties may see fit, the utilization of said birds rationally for purposes of sport, food, commerce and industry.” Convention for the protection of migratory birds and game mammals, Feb. 1; 1936, U.S.-Mex., art. I, 50 Stat. 1311, 1312. Article II of that treaty provides, inter alia, for the establishment of seasons when the taking of migratory birds is not permitted, and a limitation of hunting seasons to four months. Id., art. II, 50 Stat. at 1312. The convention with the Soviet Union provides: “Each Contracting Party shall prohibit the taking of migratory birds ... [S]ale, purchase or exchange of these birds, whether dead or alive, or their nests or eggs, and any sale, purchase or exchange of their products or parts, shall be prohibited.” Convention Concerning the Conservation of Migratory Birds and Their Environment, Nov. 19, 1976, U.S.U.S.S.R., art. 11(1), 29 U.S.T. 4647. The treaties with Mexico and the former Soviet Union cover bald and golden eagles, while the treaty with Great Britain (Canada) apparently does not. Agreement Supplementing the Agreement of February 7, 1936, Mar. 10, 1972, U.S.-Mex., 23 U.S.T. 260, 260; U.S.U.S.S.R. Treaty, app., 29 U.S.T. at 4661; U.S.-Gr. Brit. Treaty, art. I, 39 Stat. at 1702-1703; Protocol Amending the 1916 Convention for the Protection of Migratory Birds, Dec. 5, 1995, U.S.-Can., art. I, S. Treaty Doc. 104-28 (1996).

11 . Permits are not required, however, for bald eagle parts, nests, or eggs that were acquired prior to June 8, 1940, or for golden eagle parts, nests, or eggs that were acquired prior to October 24, 1962. 50 C.F.R. § 22.2.

12 . Exceptions are made for death ceremonies and other emergencies that require parts immediately.

13 . No party disputes that this requirement is satisfied here.

14 . While the Court in Singleton v. Wulff identified situations where "injustice might otherwise result” and where "the proper resolution is beyond any doubt” as situations where sua sponte consideration of issue not briefed was appropriate, it also made clear that those scenarios were not exhaustive. 428 U.S. at 121 & n. 8, 96 S.Ct. 2868.

15 . Because we decide to address the RFRA issue on these grounds, we do not consider whether courts must necessarily apply RFRA in all cases involving Free Exercise claims. Compare Diaz v. Collins, 114 F.3d 69, 71 & n. 7 (5th Cir.1997) (holding that RFRA applies in Free Exercise cases whether it is raised by the parties or not), with First Assembly of God of Naples, Florida, Inc. v. Collier County, 27 F.3d 526, 526 (11th Cir.1994) (per curiam) (declining to apply RFRA when it was not raised by a party), denying reh’g in 20 F.3d 419 (11th Cir.1994).

We have previously indicated that RFRA applies to all First Amendment claims 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 Boeme, 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 clear that the Werner' court's assumptions about RFRA were faulty, its rationale is no longer convincing.

16 . The Supreme Court has offered an alternate explanation for Sherbert in Employment Div. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Under this interpretation, Sherbert and its progeny “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, 110 S.Ct. 1595.

17 . We acknowledge that Native American religions are rich in variety, and that lumping any particular belief system under the term "Native American” religion is somewhat akin to lumping all the sects of Judaism, Christianity, and Islam together under the term "Western” religions. We acknowledge that not all Native American tribes believe that the eagle feather is sacred. Freddie Kaydahzinne, a member of the Mescalero Apache, testified at Mr. Saenz's hearing that turkey feathers are sacred to the Pueblo, water birds to some of the Oklahoma tribes, caribou to others, etc. We do not belittle this diversity. For the sake of simplicity only we refer to those Native American religions that hold the eagle feather as sacred under a collective "Native American religions.”

18 . The prohibition on hunting golden eagles is intrinsically related to the prohibition on hunting bald eagles. It is difficult to distinguish between golden and bald eagles under three years of age. United States v. Lund-quist, 932 F.Supp. 1237, 1241 (D.Ore.1996). In order to prevent accidental shooting, and because golden eagles were also in decline, Congress banned the hunting of both bird species.

19 . The government asserts that it has a compelling interest in fulfilling treaty obligations to Native Americans. This argument lacks merit. As the government acknowledges in its brief, the Supreme Court has held that the BGEPA abrogated prior treaties granting Native Americans hunting rights with respect to bald and golden eagles. United States v. Dion, 476 U.S. 734, 745, 106 S.Ct. 2216, 90 L.Ed.2d 767 (1986). The government argues that the regulations at issue here replace the prior treaty obligations. We are unpersuaded. It does not follow from the BGEPA’s abrogation of certain treaty rights that the “Indian tribes” exception was meant to replace those rights. Moreover, the exception is limited to “religious purposes,” whereas the rights that Dion held Congress had abrogated involved hunting. Thus, the government has not shown that fulfillment of treaty obligations is a compelling interest.

20 . In re Young, 82 F.3d 1407, 1419 (8th Cir.1996), vacated. & remanded on other grounds, 521 U.S. 1114, 117 S.Ct. 2502, 138 L.Ed.2d 1007 (1997), reinstated, 141 F.3d 854 (8th Cir.1998). Several district courts have found least restrictive means to be a purely factual question. Sledge v. Cummings, 1996 WL 665450, at *4 (D.Kan.1996) ("[W]hether the head wear [sic] restrictions represent the least restrictive means of furthering their legitimate security- goals remains a question of fact. Rust v. Clarke, 851 F.Supp. 377, 380 (D.Neb.1994) (“Moreover, all of the defense affidavits appear to have been drafted without the Act’s substantive provisions in mind, particularly ignoring the factual question of whether the Defendants have employed 'the least restrictive means of furthering th[e] compelling governmental interest.’ ’’).

21 . The government's statistic that there are only 40 nesting pairs of eagles in the Southwest is largely irrelevant. 64 Fed.Reg. 36,458. What is more relevant is whether the numbers are increasing or decreasing, and what the overall status of eagle populations throughout the country is. Finally, the crucial and unanswered question remains what the effect would be of expanding the register to include all Native Americans who are sincere practitioners of Native American religions.

22 . The government also points to Gibson v. Babbitt, 223 F.3d 1256 (11th Cir.2000), where the Eleventh Circuit found that “it is clear from the record that without the exemption the limited supply of bald and golden eagle parts will be distributed to a wider population and the delays will increase in providing eagle parts to members of federally recognized Indian Tribes....” Id. at 1258. However, as the quotation itself illustrates, this ruling was made on a different record. The record that we have today is practically barren as to the impact of a potential expansion of the permitting process to include all sincere practitioners of Native American faith who hold the eagle feather to be sacred. This is the key distinction between the instant cases and Gibson.

23 . Footnote 2 of the concurrence suggests that this example confuses the possible scope of the compelling interest in preserving Native American culture. The concurrence questions whether we view the compelling interest as "limited to the maintenance of the viability of Native American cultural practices as a historical legacy within the contours of our modern culture," or as "guaranteeing that members of sovereign and semi-autonomous Indian nations have the ability to carry on their traditional way of life." Infra, at 1136-37 (Murphy, J., concurring).

We agree that simply guaranteeing that Native American cultural practices are somehow a part of our modern culture is too cramped a view of the compelling interest, and we wish to dispose of any notion that such a view is advanced by this opinion, or by Supreme Court jurisprudence. See United States v. Kagama, 118 U.S. 375, 381-85, 6 S.Ct. 1109, 30 L.Ed. 228 (1886) (describing the government’s interest in protecting Native American culture as guaranteeing that the weakened Native American nations could survive). We do not express an opinion on whether distributing eagle feathers to sincere adherents of Native American faiths irrespective of whether they were members of federally recognized tribes or not, or of Native American lineage or not, would foster or inhibit this compelling interest. We simply emphasize that it is the government’s burden to build a record clarifying how the regulations serve its interests. It may well be that it can do so on remand in Hardman and Wilgus. It has not, however, done so in Saenz.

24 . Of course, one might question whether this is really the other extreme; this would presumably result in the extinction of eagles, defeating both of the government’s interests.