Edward Pielart III AKA Ed WindDancer

[earthw7]

Fla. man gets $5K fine, probation for trading bald eagle feathers
Posted on Tue, Mar. 18, 2008Digg del.icio.us AIM
The Associated Press

NASHVILLE, Tenn. -- Federal prosecutors say a Florida man who illegally possessed and traded feathers of American bald and golden eagles has been sentenced to a $5,000 fine and five years of probation.

Authorities announced the sentencing Monday of 51-year-old Ed Winddancer of Port Charlotte, Fla.

The U.S. Fish and Wildlife Service says Winddancer was arrested in Tennessee in July 2005 after he traded feathers from eagles and other protected migratory birds to an undercover agent in exchange for feathers and parts of other protected wildlife species.

Investigators say Winddancer performed Native American dances and music for civic groups, schools and summer camps. He also used the feathers to decorate his regalia.

The possession of American bald and golden eagle feathers without a permit is prohibited by the federal Bald and Golden Eagle Protection Act.

Nonrecognized man sentenced over eagle feathers
Tuesday, March 18, 2008
Filed Under: Environment

 A Florida man who is a member of non-recognized tribe was sentenced to five years of probation and fined $5,000 for illegally possessing and trading eagle feathers.

Ed Winddancer, 51, says he is a member of the Nanticoke Tribe. He was arrested in Tennessee in 2005 for trading bald and golden eagle feathers with an undercover agent from the U.S. Fish and Wildlife Service.

Winddancer sought to dismiss the charges, saying his rights under the Religious Freedom Restoration Act were violated by federal laws that protect eagles. A member of a non-recognized tribe from New Mexico won a case on similar grounds.

But a federal judge in Tennessee ruled in June 2006 that Winddancer failed to apply for a permit so he couldn't challenge the Migratory Bird Treaty Act. The judge also said the government, under the Bald and Golden Eagle Protection Act, has a compelling interest to preserve eagles and the rights of federally recognized tribes.

[AlaskaGrl]

I appreciate comments.


Online:
http://www.scam.com/showthread.php?t=36652

Article on Eagle Feathers  c2008
http://64.38.12.138/News/2008/007693.asp

http://www.nativewayproductions.com/Ed%20Winddancer.htm

Face Book
http://www.facebook.com/profile.php?id=1124432883


Time   Friday, November 26 · 6:30pm - 8:00pm
Location   The Power of One
238 W. Tampa Ave. Venice Centre Mall #258
Venice, FL
Created By   
Ed Winddancer
More Info   Ed Winddancer is an International Native American performing artist , respected educator, and Native American activist. A gifted player of the Native American flute, and Traditional Dancer, Ed has performed for audiences throughout the United States and Europe, and has dedicated his life to preserving his culture through the art of music, dance and education. Call for reservations...seating is limited!

[educatedindian]

Pielert/Winddancer has ticked off quite a few people with his claims.

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http://www.fws.gov/southeast/news/2008/images/EdWinndancerTradingAmericanBaldEagleFeathers.pdf
March 17, 2008
FOR IMMEDIATE RELEASE
CONTACT: Ed Yarbrough
United States Attorney
Byron M. Jones
Assistant U.S. Attorney
ED WINDDANCER SENTENCED TO $5,000 FINE AND 5 YEAR’S PROBATION FOR
POSSESSING AND TRADING AMERICAN BALD EAGLE FEATHERS
Nashville, TN March
17, 2008 Ed
Yarbrough, U.S. Attorney for the Middle District of
Tennessee and Steve Middleton, Resident Agent in Charge of the United States Fish and Wildlife
Service, Nashville Office, announced today that Ed Winddancer, 51, of Port Charlotte, Florida
was sentenced yesterday to a fine of $5,000 and 5 years of probation for illegally possessing and
trading feathers of American bald and golden eagles.
Mr. Winddancer was arrested in Cookeville, Tennessee in July, 2005 after he traded
feathers of American bald and golden eagles and other protected migratory birds to an undercover
agent of the U.S. Fish and Wildlife Service in exchange for feathers and parts of other protected
wildlife species. Mr. Winddancer also was found to possess more than 1,000 feathers and other
parts of various wildlife species. Mr. Winddancer performed Native American dances and music
for pow wows, civic groups, schools and summer camps. He used feathers and other wildlife
parts to decorate his Native American regalia....

------------

http://www.scam.com/showthread.php?t=36652
atsaligi  
Junior Member   Join Date: Apr 2008
Posts: 2
Re: Ed Winddancer - Native Religious Scam
Racheal - Sounds as if you really know this man! I met him in 1994 quite by accident and was romantically involved with him in a long-distance relationship off & on for over 5 yrs. Good grief...I nearly lost my business of 10 years to that creep. I also nearly lost my family relations because of him. He is a liar, big time. He at least had real hair when I met him but he creeped me out from the start. There was a hollowness, an emptiness in his eyes, like a shark's eyes. Unfeeling. I am Cherokee but because of family politics, I was never brought up the Red way. Ed grasped that fact very quickly and began posing as, you got it, a Cherokee! I bought into his lies and deceit for about a year before my questions began to be too precise and too inquisitive for him. Basically, he took me for about 11K over those five years and believe me, I no longer trust anyone who cannot look me in the eye and answer my questions. I hope he did not do a number on you but it sounds as if he did. You know what they say: if it does not look real or sound real or feel real, it probably is not real... Good luck in the future anyhow. A true Cherokee.


Devilsmane  
Junior Member   Join Date: Apr 2008
Posts: 2
Re: Ed Winddancer - Native Religious Scam
Scam artist and con men are by nature people who are able to attract other people. It's part of the scam. To say that this dude is likable only reinforces his status as a con man.

If someone would have a particular reason to state why Edward Arthur Pilert III aka Ed Winddancer (Winddancer is NOT his real name.) is not guilty of possession (There is not "single" feather rule for anyone by the way.) and bartering of Birds of Prey species feathers and parts then I would like to hear that reason.

If someone can provide documentation that there is some sort of universal Indian religion that uses Eagle feathers then I would like to see that documentation.

If somone is claiming that this person is an Indian and belongs to a legitimate tribe, state or Federal, I would like you to supply your proof.

Jimmy Boy Dial
Lumbee-Cheraw
Editor, The Spike


Devilsmane  
Junior Member   Join Date: Apr 2008
Posts: 2
Re: Ed Winddancer - Native Religious Scam
NANTICOKE INDIAN ASSOCIATION, INC.
27073 JOHN J. WILLIAMS HIGHWAY, MILLSBORO, DE 19966
PH 302.945.3400 FAX 302.947.9411
EMAIL nanticok@verizon.net
WEBSITE www.nanticokeindians.org
April 29, 2008
REGISTERED MAIL – RETURN RECEIPT
REGULAR MAIL

Mr. Edward Winddancer
5521 White Avenue
Port Charlotte, FL 33981

Dear Mr. Winddancer:

The Nanticoke Indian Association, Inc. members at the June 2007 regular monthly meeting held a vote pertaining to the status of your Associate Membership, your use of Nanticoke name and your affiliation with this Association. It was agreed by more than two-thirds vote of the members in attendance that your Associate Membership should be suspended until further notice and your affiliation with the Association should cease until further notice. As you are aware correspondence was sent to you at that time advising you of this status. Unfortunately, in the past months it has come to our attention that you have not honored this request and have continued to publicly state yourself and use your name in an affiliation with the Nanticoke Indian Association, Inc.

At the April 2008 Association regular monthly meeting the members in attendance held another vote concerning your status as an Associate Member of the Association, the outcome of this vote being that more than two-thirds of members in attendance voted that your Association Membership should be terminated and that you should be expelled from the Nanticoke Indian Association, Inc. Due to this current decision of the Association, we are advising you that you have the opportunity of a fifteen (15) day period from the date of receipt of this correspondence to be heard in your own defense of this situation.

In the event that you have any questions or concerns regarding the aforementioned matter, please do not hesitate to contact me.
Very truly yours,
James T. Norwood, Chief
And Tribal Council of the
Nanticoke Indian Association  


nativelegaljustice  
Ed Winddancer   Join Date: Jun 2009
Posts: 2  
Re: Ed Winddancer - Native Religious Scam
Like I said, if anyone is interested in the REAL truth about the case, you can contact me through my email ed@edwinddancer.com


--------------
http://www.nativewayproductions.com/Ed%20Winddancer.htm
....Ed WindDancer was paid for the community, school and pow wow performances he referred to as Cultural Work. He also promotes his CDs with his Regalia.
Mr. WindDancer changed his name legally from Edward Arthur Pielert, III to Ed WindDancer in 1992..Visit http://www.co.charlotte.fl.us/clrkinfo/clerk_...
Official records - WindDancer, Ed. He has a brother Paul Michael Pielert in Maryland.
His probation terms require that he live at his ex wife and step daughters home in Port Charlotte. If he is so committed to family why does he introduce his ex- wife Patty and her daughter Terree Grubb of Port Charlotte as an old friend from up North?
Please visit his website at www.edwinddancer.com As you peruse the site please know that Ed WindDancer was born with blue eyes and brown hair. He often wears brown contacts and dyed extensions.

--------------

http://www.powwows.com/gathering/native-issues/36454-powwows-biggest-killer-eagles-4.html
ntownn8ive
As you can see...
Join Date: Sep 2005
Location: We get a lot of sun in Ntown!
Posts: 5,953
Credits: 3,249.29
Blog Entries: 1 Haven't really read thru this thread thoroughly, but I got this in the mail, anyone know either of these dudes?:

EVENT ORGANIZER ALERT
Greetings,
Although for several years I have attempted to curtail the activities of Edward Arthur Pilert III, aka Ed Winddancer (http://www.edwinddancer.com/), my attempts have been futile due to the vast amount of shamery involved with American Indian events throughout the United States. Mr. Pilert has attempted to pass himself off as Lakota, at other times as a Cherokee and recently and most currently as a Nanticoke. He belongs to none of these nations or tribes.
In 2005 Mr. Pilert bartered eagle feathers with an undercover agent for the U.S. Fish and Wildlife Service over several occasions. Subsequently, Mr. Pilert was charged by Federal authorities and a disturbing number of protected bird parts were found in his motorhome. The bird parts and motorhome were confiscated.
Last year Mr. Pilert filed a Motion to Dismiss the Indictment. It makes for interesting reading and I have provided the link so that you can read the opinion that was rendered. I've inserted a small section of the opinion below. Please pay close attention to the second paragraph.
Shortly, Mr. Pilert will be tried in Federal Court. I sincerely hope that he receives the maximum penalties for his crimes. However, I am more concerned that this person not remain a welcome representative of American Indian culture and American Indians at any event in the United States. Mr. Pilert has sucked money and fame from his false and erroneous misrepresentations and now has blighted American Indians nationwide. The time has come for this to end. I hope you agree.
Jimmy Boy Dial
Editor, The Spike
www.thespike.com
http://www.animallaw.info/cases/causfd2006wl1722432.htm (Michigan University College of law)



Wakalapi
www.wakalapi.com
Join Date: Jun 2001
Location: East of the Mountains
Posts: 1,312
Credits: 8,132.32
Just a quick comment that according to Mr. Wind Dancer's website, he was adopted into the Medicine family at Wakpala, SD. My family is also from Wakpala, but I haven't been "back home" since I was 13 and do not know the Medicines or their reason behind making a familial adoption. Being adopted by one family, however, is not the same as being adopted by a tribe or nation. I do not have to accept Mr. Wind Dancer as "my relative" based on his adoption by the Medicine family, and neither do descendants of any other family. Though, I guess, if were to become friends I suppose that would be our choices. There appears to be no legal basis* for the man to possess eagle feathers based solely on that adoption. As far as a cultural basis or sacred reasons, I am not in the position of authority to affirm or rebuke that decision.

[White Horse]

The Nanticoke Indian Association in response to statements written on Ed Winddancer web pages wishes to clarify the following regarding Ed Winddancer.

         Ed Winddancer was an association member of this association,an associate membership is given if the person can not meet the requirements to be a regular member of this association, Mr Ed Winddancer could not prove his relation ship  to a member of the tribe. Associate membership is given to people who want to help the tribe they can be white,black are other nationally> Mr Winddancer membership was revolked several years ago, he does not represent the association in any way nor does he speak for it

PLEASE re-post in Frauds section.  I couldn't or am not allowed to post there. Thanks, White Horse

[White Horse]

Ed was kicked out of the Nanicoke tribe, officially he was an Associate member not even an actual member. Recently at a Wannabe Powwow FIHA when handed the microphone. Ed stated to people their he was now Lenape. If you are keeping count Ed winddancer was Cherokee, Lakota, Nanicoke, and now Lenape. By the way he claims he is also an activist fighting for his peoples rights? 

[Unegv Waya]

I have heard some things about Ed over this past year or so.  How and where can I find any official statements or documents regarding his true status with any tribe? 

I've never heard Ed mention any affiliation other than Nanticote (sp?) and then only once in the dozen times I've seen him.  However, others have told me they have heard him say things that would seem that he is claiming or implying a connection to other nations. 

So, has there ever been an official statement made by any council, elder or tribe that I can read?

[Unegv Waya]

All I can say is Wow.  I had no idea all this controversy surrounded Ed Winddancer.  This surprises me particularly considering the number of real NDN artists and event promoters who regularly schedule Ed for events or perform with him.  I've known a few powwow Emcees and ADs who are well known in the greater NDN community across the country who regularly work with Ed and introduce him as a mixed blood NDN artist.

I will keep my eyes and ears open and carefully observe what he says and does next time I am at an event where he is performing.  Thank you all for posting this.

dodadagohvi

[Unegv Waya]

I found the copy of the letter from the tribe in the other topic about Ed, White Horse.  Thank you.

[nemesis]

There is a piece exposing Ed Winddancer in the Daily Mail (a fairly right wing newspaper often referred to as the "Daily Hate") here:

You're a cultural thief! Ten year feud over Native American 'fraud' who performs at heritage festivals (and sells his ancestral chants on MySpace)
Ed Winddancer, 55, changed his name in 1992

With his majestic headdress and fearsome warpaint, Ed Winddancer appears to be carrying on the proud traditions of his Native American ancestors - but according to a long-standing enemy, he is nothing but a fraud in feathers. 
Winddancer, 55, traces his roots to the Nanticoke and Cherokee tribes, and often appears in full  dress at heritage festivals to play the flute, regaling crowds with ancient stories. He sells CDs of his music through his MySpace page.
However his performances are now often accompanied by the presence of Sal Serbin, 48, who has taken to appearing at Winddancer's gigs holding up signs reading 'Liar' and 'Cultural Thief'.


Read more: http://www.dailymail.co.uk/news/article-2093432/Youre-cultural-thief-Ten-year-feud-Native-American-fraud-performs-heritage-festivals-sells-traditional-chants-MySpace.html#ixzz1l1eXWDWw


It is interesting to me that the mail is covering this story as their usual strategy is to give uncritical coverage to newage frauds and cultural appropriators.  Having said that, they have on occasion run some fairly good stories on cults.  A few months back they published a piece that promoted some UK newage / "tantric" sex workers who are also deer tribe members however this seems to have been removed. 

They also ran this story

Meet Running Bear and Small Warrior (or John and Pauline) who live their lives in Coventry as native American INDIANS in the wild, wild west... Midlands

Read more: http://www.dailymail.co.uk/news/article-2021102/John-Jerzyszek-wife-Pauline-live-native-American-INDIANS-Coventry.html#ixzz1l1d4oB6T

With the removal of the deer tribe related piece and the publishing of the above piece on Ed Winddancer I'm wondering whether the Daily Mail may have discovered the NAFPS boards?

[Tami]

I have heard some things about Ed over this past year or so.  How and where can I find any official statements or documents regarding his true status with any tribe? 

I've never heard Ed mention any affiliation other than Nanticote (sp?) and then only once in the dozen times I've seen him.  However, others have told me they have heard him say things that would seem that he is claiming or implying a connection to other nations. 

So, has there ever been an official statement made by any council, elder or tribe that I can read?

Ed does not affiliate himself as a tribal member of ANY tribe. If everyone would pay attention, he says that he is of Nanticoke, and Cherokee descent. You do not have to be a member of a tribe to have heritage. Also, if everyone would pay attention to his performances, he alot of times will teach some words in both the Lenape and the Lakota language. He teaches Lenape words because the Lenape language is closest to the Nanticoke language (which by the way has been lost through the years). He was adopted into a Lakota family years ago and learned many things including some of the language. Really wish people would do the right thing and if they have questions about someone, instead of looking to the internet (where people can post any belief and view they want against anyone) they should be contacting Ed himself and get it from the horses mouth.
And yes, he was one time an associate member of the Nanticoke tribe. If all of you out there are such investigators, then I shouldnt have to tell you this, but just in case you didnt know, the Nanticoke tribe of Maryland is not the original Nanticoke tribe. It was formed by a handful of people with Nanticoke heritage who wanted to bring others with the heritage together. The way this association formed its 'rules for membership' is you had to be able to trace your heritage back to just a couple of the families that started the association. Everyone else can only be an associate member. The letter that is flying around the internet from the tribe, is a letter that was send to Ed after he was arrested for having feathers without a permit. Since the only way you can obtain a 'permit' for feathers is to be a member of a federally recognzied tribe, ALL Nanticoke tribal members can not have feathers in their possession. The tribe dismissed Ed while the case was going on. (How rude)
Ed and I are tired of all these idiots out there like Sal Serbin and Rex Begaye that purposely spread false information about people just to try to make a name for themselves. Sal has tried to spread that Ed is in violation of the Native American Arts and Crafts Act by selling his CD's and doing performances. ONCE AGAIN, it doesnt take but a few minutes to look up the act which clearly states that music, actors, entertainers, and musicans are exempt. I could go on and on with all the bullshit that is posted out there by these guys that is totally false and waiting for anyone to read and run with it before taking a moment to looking into it yourself.

[Smart Mule]

When Ed was arrested for possessing feathers without a permit it was reported that he had well over 1,000 feathers and parts which he was bartering.  He was commodifying sacred items.  This is not the type of person who should be representing themselves as indigenous, whether it is as an entertainer or educator.   

With regard to the Nanticoke language, there's been a language reclamation project going on since I think 2007.

I don't much care that you and Ed are tired of this.  I'm tired of people who profit off the culture when they have no right to.  If Ed stops what he is doing I am sure that others will stop exposing him.  It's a win win situation.

[critter - a white non-ndn person]

the Nanticoke tribe of Maryland is not the original Nanticoke tribe. It was formed by a handful of people with Nanticoke heritage who wanted to bring others with the heritage together.

A heritage group, from what I understand, is quite different than a "tribe"?  Some one can correct me on this if I'm wrong..

[Superdog]

I have heard some things about Ed over this past year or so.  How and where can I find any official statements or documents regarding his true status with any tribe? 

I've never heard Ed mention any affiliation other than Nanticote (sp?) and then only once in the dozen times I've seen him.  However, others have told me they have heard him say things that would seem that he is claiming or implying a connection to other nations. 

So, has there ever been an official statement made by any council, elder or tribe that I can read?

Ed does not affiliate himself as a tribal member of ANY tribe. If everyone would pay attention, he says that he is of Nanticoke, and Cherokee descent. You do not have to be a member of a tribe to have heritage. Also, if everyone would pay attention to his performances, he alot of times will teach some words in both the Lenape and the Lakota language. He teaches Lenape words because the Lenape language is closest to the Nanticoke language (which by the way has been lost through the years). He was adopted into a Lakota family years ago and learned many things including some of the language. Really wish people would do the right thing and if they have questions about someone, instead of looking to the internet (where people can post any belief and view they want against anyone) they should be contacting Ed himself and get it from the horses mouth.
And yes, he was one time an associate member of the Nanticoke tribe. If all of you out there are such investigators, then I shouldnt have to tell you this, but just in case you didnt know, the Nanticoke tribe of Maryland is not the original Nanticoke tribe. It was formed by a handful of people with Nanticoke heritage who wanted to bring others with the heritage together. The way this association formed its 'rules for membership' is you had to be able to trace your heritage back to just a couple of the families that started the association. Everyone else can only be an associate member. The letter that is flying around the internet from the tribe, is a letter that was send to Ed after he was arrested for having feathers without a permit. Since the only way you can obtain a 'permit' for feathers is to be a member of a federally recognzied tribe, ALL Nanticoke tribal members can not have feathers in their possession. The tribe dismissed Ed while the case was going on. (How rude)
Ed and I are tired of all these idiots out there like Sal Serbin and Rex Begaye that purposely spread false information about people just to try to make a name for themselves. Sal has tried to spread that Ed is in violation of the Native American Arts and Crafts Act by selling his CD's and doing performances. ONCE AGAIN, it doesnt take but a few minutes to look up the act which clearly states that music, actors, entertainers, and musicans are exempt. I could go on and on with all the bullshit that is posted out there by these guys that is totally false and waiting for anyone to read and run with it before taking a moment to looking into it yourself.

Hi Tami.  You might be surprised, but I find myself agreeing with you about a lot of things.  I don't see you lying about anything.  I had one slight problem with something I think you mischaracterized.

"Ed does not affiliate himself as a tribal member of ANY tribe."

I think that's true currently, but in the past that hasn't always been the case.  I've seen him state himself on youtube videos "I am a Nanticoke Indian" on videos as recent as 2008.  But anything that's relatively current with his name on it usually states it the way you described it.  I don't seem him truly mispresenting himself, but I do have another theory of why some may be put off by him.  I'm just stating my personal opinion, but I find his performances on the reallllllly cheesy side.  Cringeworthy.  One example would be the youtube commercial he has for the "Flight of the Red Tail Hawk" show upcoming for him.

http://www.youtube.com/watch?v=Dj5ykv-PfVs

Sorry....but I get put off by someone who presents themself in this way, but it doesn't matter if they're Native or not....they could be a rap artist, if they were this bad and I were another rap artist....I'd be upset at them too.

And it doesn't really end there....that video is really just the beginning.  Sorry, not trying to be mean.  I'm not perfect either, but if you're gonna put yourself out there in that way....it needs to be wayyyyy better.  He comes off more as weird and entertaining to children, but in my opinion, he's not a good educator and should think about being more honest about that.  As an entertainer, as I said, cringeworthy.  Just my thoughts.  Not saying he's a fraud or he's not, but I can certainly see why some would accuse him of being one without first getting to know him. 

Superdog

[White Horse]

Public Records of a Federal Court case when ed was caught selling Eagle Feathers, and it is documented that he sold to undercover agents not once but TWICE!

*** ed winddancer plead guilty to avoid trial after the motions were dismissed. If the case would have gone to trial ed winddancer faced 6 counts of $115,000.00 for a total of $ 690,000.00 Fine and 6 counts of 5 years in jail for a total of 30 years. ed winddancer was only fined $ 5000.00 and 5 years probation.   *** Each feather is a charge, ed winddancer had hundreds of feathers seized, too bad he was not charged properly.***
======================================================================================

Because Winddancer is not a member of a federally recognized Native American tribe, the Indictment

charges that he has violated the Bald and Golden Eagle Protection Act (“BGEPA”),
16 U.S.C. § 668(a)

, and the Migratory Bird Treaty Act (“MBTA”),
16 U.S.C. § 703, by possessing the feathers. On July

20, 2005, Winddancer traded feathers with an undercover agent for the U.S. Fish and Wildlife Service.

The agent and Winddancer *690 traded feathers on two successive days, after which two other Fish and

Wildlife agents searched Winddancer's motor home, finding many contraband feathers. (Docket No. 30.)

Winddancer was subsequently indicted on six charges: (1) possession, bartering, and offering to barter

eagle feathers on July 20, 2005, in violation of the BGEPA; (2) possession, bartering, and offering to

barter eagle feathers on July 21, 2005, in violation of the BGEPA; (3) possession, bartering, and offering

to barter migratory bird feathers on July 20, 2005, in violation of the MBTA; (4) possession, bartering,

and offering to barter migratory bird feathers on July 21, 2005, in violation of the MBTA; (5) selling and

receiving contraband wildlife in excess of $350 on July 20, 2005, in violation of both the BGEPA and the

MBTA; and (6) selling and receiving contraband wildlife in excess of $350 on July 21, 2005, in violation

of both the BGEPA and MBTA. In addition, the United States seek forfeiture of Winddancer's collection

of contraband feathers and parts, as well as his motor home, for its use in possessing and selling the items.
(Docket No. 22).
 
***This shows that recieved money in excess of $350.00 for the feathers***


==================================================================================


United States District Court,
M.D. Tennessee,
Nashville Division.
UNITED STATES of America
v.
Ed WINDDANCER.
No. 2:05-00014.
June 19, 2006.
Background: Defendant, indicted on six counts relating to possessing and bartering eagle feathers and feathers plucked from other migratory birds, moved to dismiss.

Holdings: The District Court, Trauger, J., held that:
(1) defendant lacked standing to challenge the constitutionality of regulations implementing the Migratory Bird Treaty Act (MBTA);
(2) defendant's rights under the Religious Freedom Restoration Act (RFRA) were not violated by his indictment for violating the MBTA;
(3) defendant's rights under RFRA were not violated by his indictment for, inter alia, possessing feathers of eagles in violation of the Bald and Golden Eagle Protection Act (BGEPA);
(4) defendant who engaged in feather-for-feather exchanges was properly indicted for bartering migratory bird feathers in violation of MBTA.

Motion denied.

MEMORANDUM
TRAUGER, District Judge.

This matter comes before the court on a Motion to Dismiss the Indictment filed by the defendant (Docket No. 30), to which the United States has responded (Docket No. 38). For the reasons discussed herein, the defendant's motion will be denied.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The defendant, Ed Winddancer, was indicted on six counts relating to possessing and bartering eagle feathers and feathers plucked from other migratory birds. (Docket No. 30.) Winddancer, as befits his name, performs Native American dances at pow-wows and has produced recordings of Native American flute music and traveled to Europe to perform his music and dance. While dancing, Winddancer wears the feathers of eagles, hawks and other birds. He alleges that the sacred feathers are crucial to the proper practice of his religion, which he alleges to be a Native American religion, though he does not specify which one.

Because Winddancer is not a member of a federally recognized Native American tribe, the Indictment charges that he has violated the Bald and Golden Eagle Protection Act (“BGEPA”), 16 U.S.C. § 668(a), and the Migratory Bird Treaty Act (“MBTA”), 16 U.S.C. § 703, by possessing the feathers. On July 20, 2005, Winddancer traded feathers with an undercover agent for the U.S. Fish and Wildlife Service. The agent and Winddancer *690 traded feathers on two successive days, after which two other Fish and Wildlife agents searched Winddancer's motor home, finding many contraband feathers. (Docket No. 30.) Winddancer was subsequently indicted on six charges: (1) possession, bartering, and offering to barter eagle feathers on July 20, 2005, in violation of the BGEPA; (2) possession, bartering, and offering to barter eagle feathers on July 21, 2005, in violation of the BGEPA; (3) possession, bartering, and offering to barter migratory bird feathers on July 20, 2005, in violation of the MBTA; (4) possession, bartering, and offering to barter migratory bird feathers on July 21, 2005, in violation of the MBTA; (5) selling and receiving contraband wildlife in excess of $350 on July 20, 2005, in violation of both the BGEPA and the MBTA; and (6) selling and receiving contraband wildlife in excess of $350 on July 21, 2005, in violation of both the BGEPA and MBTA. In addition, the United States seek forfeiture of Winddancer's collection of contraband feathers and parts, as well as his motor home, for its use in possessing and selling the items. (Docket No. 22).

The Secretary of the Interior has issued a set of regulations for both the BGEPA and the MBTA, creating a permit system which allows for limited possession of bird parts. 50 C.F.R. §§ 22.11(a), 22.22. The BGEPA applies only to bald and golden eagles. Under the regulations for the BGEPA, only members of Indian tribes recognized by the United States Bureau of Indian Affairs may apply for a permit to possess bald and golden eagle feathers for religious use. 50 C.F.R. § 22.22. The permits are good for life and grant the recipient access to the National Eagle Repository. Id. In general, Native Americans are not permitted to acquire eagle parts from any source other than the National Repository. However, certain tribes are allowed to take birds from private rookeries for use in religious ceremonies.

Unlike the BGEPA, the MBTA covers all migratory birds. Under the MBTA's regulations, several avenues are open for legal possession of migratory bird parts that are not available for possession of bald and golden eagle parts. Under the “Morton Policy,” promulgated by Secretary of Interior Rogers C.B. Morton, all American Indians-that is, members of federally recognized Indian tribes-“may possess, carry, use, wear, give, loan, or exchange among other Indians, without compensation” migratory birds and bird parts covered by the MBTA without a permit. (Docket No. 30, Ex. 11.) In addition, the regulations implementing the MBTA provide for permits to possess migratory bird parts for a variety of purposes. For instance, 50 C.F.R. § 21.27 provides for special purpose permits available to all citizens “for special purpose activities related to migratory birds, their parts, nests, or eggs” that are not otherwise provided for by the other permit provisions. However, Winddancer did not apply for a permit, under that section or any other permit provision.

On April 27, 2006, the defendant filed a Motion to Dismiss the Indictment, alleging that both the BGEPA and the MBTA, as implemented by the Department of Interior, violate his rights under the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. (Docket No. 30.) Specifically, the defendant alleges that both statutes as implemented substantially burden his sincere religious practices involving the feathers and parts of protected birds and that the burden does not further a compelling government interest by the least restrictive means.

[White Horse]

Part 2


ANALYSIS
I. Standard of Review
[1]  Motions to dismiss indictments are governed by *691 Rule 12 of the Federal Rules of Criminal Procedure, which states “Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.” Fed.R.Crim.P. 12(b). The Sixth Circuit guides district courts to “dispose of all motions before trial if they are capable of determination without trial of the general issue.” U.S. v. Jones, 542 F.2d 661, 665 (6th Cir.1976). Moreover, “Rule 12 vests the Court with authority ‘to determine issues of fact in such manner as the court deems appropriate.’ ” Id. (quoting Notes of the Advisory Committee to Fed.R.Crim.P. 12, reprinted in 8 Moore P 12.01(3) at 12-8). The Federal Rules of Criminal Procedure “clearly envision that a district court may make preliminary findings of fact necessary to decide the questions of law presented by pre-trial motion so long as the court's findings on the motion do not invade the province of the ultimate finder of fact.” Jones, 542 F.2d at 664; see also U.S. v. Craft, 105 F.3d 1123, 1126 (6th Cir.1997) (“District Courts may ordinarily make preliminary findings of fact necessary to decide questions of law presented by pretrial motions so long as the trial court's conclusions do not invade the province of the ultimate factfinder.”). A defense raised in a motion to dismiss indictment is “capable of determination if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” Jones, 542 F.2d at 664 (citing United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94 (1969)).

[2]  An indictment that is valid on its face may not be dismissed on the ground it is based on inadequate or insufficient evidence. United States v. Williams, 504 U.S. 36, 54, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992). Therefore, a court cannot consider a factual challenge to an indictment purporting to show a defect consisting solely of insufficient evidence to prove a particular charge. Id. Rule 12(b)(1) of the Federal Rules of Criminal Procedure, which cautions the trial judge that he may consider on a motion to dismiss the indictment only those objections that are “capable of determination without the trial of the general issue,” indicates that evidentiary questions of this type should not be determined on such a motion. United States v. Knox, 396 U.S. 77, 83 n. 7, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969). In short, “a motion to dismiss should be denied if it requires a pretrial test of the government's evidence.” U.S. v. Jones, No. 1:05-132, 2006 WL 399234, at *1 (E.D.Tenn. Feb.16, 2006).

[3]  On a motion to dismiss indictment, “the [c]ourt must view the ndictment's factual allegations as true, and must determine only whether the ndictment is ‘valid on its face.’ ” U.S. v. Campbell, No. 02-80863, 2006 WL 897436, at *2 (E.D.Mich. April 6, 2006) (citing Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956)). Accordingly, the court must resolve factual issues in this case, such as they exist, in favor of the indictment. With this standard in mind, the court turns to an analysis of the defendant's motion.

II. Defendant's RFRA Defenses
The defendant argues that he is exempt from prosecution for possessing and bartering contraband bird parts under the RFRA. That statute provides that the “[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 government interest; and (2) is the least restrictive means of furthering that compelling government interest.” 42 U.S.C. § 2000bb-1(b).FN1 The defendant alleges*692 that his activities involving the feathers hold a religious significance to him, and, though he concedes that the government has a compelling interest in preserving both the birds themselves and the cultures of recognized Indian tribes (which require access to some protected birds), he maintains that the government has not chosen the least restrictive means of furthering those interests. The court disagrees.

FN1. The RFRA was declared unconstitutional as applied to the states in City of Boerne v. Flores, 521 U.S. 507, 530-35, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). However, it remains valid as applied to the federal government. See Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418, ----, 126 S.Ct. 1211, 1216, 163 L.Ed.2d 1017 (Feb. 21, 2006); United States v. Sandia, 188 F.3d 1215, 1217 (10th Cir.1999); Adams v. CIR, 170 F.3d 173, 175 (3d Cir.1999); Alamo v. Clay, 137 F.3d 1366, 1367 (D.C.Cir.1998).

[4]  [5]  It was Congress' intention, in enacting the RFRA, to restore the compelling interest test long applied by the Supreme Court when interpreting the Free Exercise Clause of the First Amendment to the Constitution- see, e.g., Sherbert v. Verner, 374 U.S. 398, 405, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972)-and abandoned by the Court in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). See In re The Grand Jury Empaneling, 171 F.3d 826, 829 (3rd Cir.1999) (In the RFRA, Congress attempted “to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder.”). Under the RFRA, as in the compelling interest test, the defendant bears the initial burden to demonstrate a sincere religious belief that has been substantially burdened by the state. U.S. v. Meyers, 95 F.3d 1475, 1483 (10th Cir.1996) (citing Yoder, 406 U.S. at 215, 92 S.Ct. 1526) (beliefs that are “philosophical and personal rather than religious ... [do] not rise to the demands of the Religion Clauses”). Once the defendant has made that showing, the burden shifts to the state to demonstrate that the challenged regulation furthers a compelling state interest by the least restrictive means. Adams, 170 F.3d at 175; Jolly v. Coughlin, 76 F.3d 468, 478 (2d Cir.1996).

A. Defendant's Standing to Challenge the MBTA
[6]  Before performing the burden shifting analysis described above, the court must address a standing issue. The United States argues that the defendant does not have standing to challenge the regulations implementing the MBTA because, under those regulations, the defendant could have applied for a permit to possess migratory bird parts but did not do so. Indeed, courts have not typically allowed defendants to make collateral challenges to regulatory statutes where the defendant inexplicably failed to apply for a permit to perform the activity in question. Madsen v. Boise State University, 976 F.2d 1219, 1221 (9th Cir.1992) (“[A] plaintiff lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit.”); see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-71, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) (plaintiff who had never applied for membership lacked standing to challenge fraternal organization's discriminatory membership policies); Lehon v. City of Atlanta, 242 U.S. 53, 56, 37 S.Ct. 70, 61 L.Ed. 145 (1916) (non-resident who never applied for permit lacked standing to challenge licensing ordinance on ground that city officials discriminate in favor of residents in awarding licenses); Albuquerque Indian Rights v. Lujan, 930 F.2d 49, 56 (D.C.Cir.1991) (plaintiffs lacked standing to challenge failure to extend Indian hiring preferences into job categories for which *693 they never formally applied); Oil, Chemical & Atomic Workers Int'l Union v. Gillette Co., 905 F.2d 1176, 1177 (8th Cir.1990) (employee who has not filed benefits claim lacks standing to challenge employer's retirement policy); Doe v. Blum, 729 F.2d 186, 189-90 (2d Cir.1984) (plaintiffs who never requested family planning services may not challenge Medicaid distribution procedures); Brown v. Sibley, 650 F.2d 760, 770-71 (5th Cir. Unit A Jul.1981) (plaintiffs who had never participated in or been excluded from program receiving federal funding lacked standing to challenge its compliance with Rehabilitation Act); Jackson v. Dukakis, 526 F.2d 64, 65-66 (1st Cir.1975) (plaintiff who did not apply for employment with state agencies lacks standing to allege discriminatory hiring practices); Interstate Commerce Comm'n v. Appleyard, 513 F.2d 575, 577 (4th Cir.1975) (trucker who has never applied for ICC transportation permit has “suffered no legally cognizable injury” from policy), cert. denied, 423 U.S. 840, 96 S.Ct. 72, 46 L.Ed.2d 60 (1975).

This standing requirement “serves the salutary objective of ensuring that only those individuals who cannot resolve their disputes without judicial intervention wind up in court,” Madsen, 976 F.2d at 1221, for, as the United States argues, the court has no way to know whether the defendant could have been granted a “special purpose” permit under 50 C.F.R. § 21.27 without his having applied for one. In the event that the defendant were granted such a permit and could legally possess migratory bird feathers, the MBTA could not be said to burden his religious use of the feathers. See, e.g., East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 227 (6th Cir.1995) (holding that the plaintiffs lacked standing to challenge a permit provision without showing that they would have been ineligible to obtain a permit).

In similar challenges to federal bird feather regulations, courts have addressed the standing issue consistently with the above approach. In United States v. Hugs, 109 F.3d 1375, 1378 (9th Cir.1997), the court held that the defendant-a member of a federally recognized Indian tribe-did not have standing to challenge BGEPA as it applied to him personally, because he could have applied for a permit to possess the bird parts legally but did not do so. Reasoning that “failure to apply for a permit precludes challenge to the manner in which the Act is administered,” the court held that the defendant could challenge only the “facial validity of the BGEPA and its regulations” and not “the operation of the underlying administrative scheme.” Id, see also U.S. v. Lundquist, 932 F.Supp. 1237, 1242 n. 4 (D.Or.1996) (holding that the defendant “has no standing to challenge the alleged imperfections of the permit process because he has never applied for a permit”); United States v. Thirty Eight Golden Eagles or Eagle Parts, 649 F.Supp. 269, 277 (D.Nev.1986) (holding that the defendant could challenge only the “facial validity of the Act” and not “the manner in which the Act is administered” where the defendant had “not applied for a relevant permit”).

[7]  In United States v. Hardman, 297 F.3d 1116, 1121 (10th Cir.2002), the court held that the defendants did have standing to challenge the regulatory scheme at issue because applying for permits would have been futile. In Hardman, the defendants challenged only the BGEPA, which does not allow non-members of federally recognized tribes to apply for permits, and not the MBTA, which does allow for such permits. Id. at 1120-21. As in Hardman, Winddancer does have standing to challenge the regulations administering the BGEPA because-for the same reasons as in Hardman-applying for a BGEPA permit*694 would have been futile for Winddancer. However, Winddancer does not have standing to challenge the manner in which the MBTA has been administered against him, because applying for a permit under the MBTA would not have been clearly futile. Id., see also United States v. Gonzales, 957 F.Supp. 1225, 1227 (D.N.M.1997) (“permitting the defendant to mount a challenge to the permit process without having applied for a permit only where the defendant challenged the fact of the application process itself”).

Having established that Winddancer can mount only a “facial” challenge to the MBTA, it is necessary to define how exactly that “facial” challenge differs from an “as applied” challenge.FN2 The Supreme Court has held that a facial challenge requires a showing that “no set of circumstances exists under which the Act [in question] would be valid.” Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 514, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990) (O'Connor, J., concurring) (quoting Webster v. Reproductive Health Services, 492 U.S. 490, 524, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989)); see also U.S. v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”). Therefore, in order to demonstrate that the MBTA is facially invalid, the defendant would have to show that it is not capable of being applied without violating the RFRA.

FN2. The court will assume, in accordance with other federal courts to address this issue, that the RFRA-which creates statutory, and not Constitutional rights-can be called upon to mount both “facial” and “as applied” challenges to federal legislation. Hugs, 109 F.3d at 1378.

[8]  The defendant has not shown, nor has he even alleged, that the MBTA is incapable of application without violating religious rights guaranteed by the RFRA. Instead, the defendant challenges a specific facet of its application-the “Morton Policy”-under which members of federally recognized Indian Tribes are not subject to the Act. The defendant does not allege that the MBTA cannot be constitutionally enforced but rather that the “Morton Policy” should be expanded, ever so slightly, to include religious practitioners such as himself. Therefore, the defendant's MBTA challenge must fail.FN3

FN3. The defendant has not invoked the “overbreadth doctrine” in order to circumvent the standing requirement for the MBTA challenge, and for good reason. Because the defendant's challenge arises under the RFRA, and not the First Amendment, the “overbreadth doctrine” may not be invoked to expand review of the MBTA. See Coleman v. DeWitt, 282 F.3d 908, 914 (6th Cir.2002) (“Neither the Supreme Court nor this court has applied the overbreadth doctrine when the First Amendment was not implicated.”); Salerno, 481 U.S. at 745, 107 S.Ct. 2095 (“We have not recognized an overbreadth doctrine outside the limited context of the First Amendment.”).

B. Defendant's Challenge to the BGEPA
Because it would have been futile for the defendant to apply for a permit under the BGEPA, the court now turns to analyze the defendant's RFRA challenge to his prosecution under that statute. Hugs, 109 F.3d at 1378.

1. A Sincere Exercise of Religion
[9]  The defendant bears the initial burden of demonstrating that the regulations at issue substantially burden a sincere religious belief. Yoder, 406 U.S. at 215, 92 S.Ct. 1526 (beliefs that are “philosophical and personal rather than religious ... [do] not rise to the demands of the Religion *695 Clauses”). Although the defendant has shown that the BGEPA substantially burdens his ability to possess eagle feathers-under BGEPA, he may not possess them-he has not shown that his desire to possess the feathers arises from a sincere religious belief.

The defendant has identified at least some Native American ancestry on both sides of his genealogy. According to the defendant, his father had Cherokee ancestry, and his mother Nanticoke ancestry. (Docket No. 30 at p. 2-3.) In addition, he alleges to have been formally admitted as an associate member to the Nanticoke tribe (which is not federally recognized), and to have been adopted by a Lakota family. (Id.) He is not a member of the Lakota tribe, however, or the Cherokee tribe. (Id.) According to the materials attached to the defendant's brief, the Nanticoke people are indigenous to Delaware. (Docket No. 30, Ex. 2.) The Cherokee tribe and Lakota tribe are each, respectively, located in different geographic areas. The people of these tribes each practice their own religions; however, the defendant does not identify which of them, if any, he practices. Rather, he alleges to be a “sincere adherent to a bona fide Native American religion,” and that he “exercises that religion through sacred dances.” (Docket No. 30 at p. 3.) The defendant does not support that allegation with any documents or affidavits, nor does he identify to which specific Native American religion he adheres. Therefore, he has not met his initial burden under the RFRA to demonstrate that his possession of eagle feathers arises from a sincere religious belief, and not a cultural or philosophical expression. See, e.g., Diaz v. Collins, 114 F.3d 69, 72 (5th Cir.1997) (defendant bears the burden of demonstrating a substantial burden to a sincere religious belief).

2. The Least Restrictive Means
[10]  Even if the defendant had met his initial burden, the court could not grant his motion to dismiss indictment because the United States has shown that the regulations implementing the BGEPA further a compelling government interest by the least restrictive means. Because neither party disputes that the regulations implementing the BGEPA further two compelling government interests, which are actually at odds-the preservation of bald and golden eagles, and the preservation of federally recognized Indian tribes-the only issue is whether or not the regulations further those goals by the least restrictive means. The court finds that they do.

As noted, the defendant does not dispute the government's compelling interest in supporting bald and golden eagle populations. Instead, the defendant argues that the government's restrictions are unduly burdensome, because it can meet its interest simply by enforcing laws banning eagle poaching. (Docket No. 30 at p. 32.) That is, by legalizing possession of eagle parts, but maintaining the federal repository as the sole legal means of access to them, the defendant argues that the United States can protect bald and golden eagles without burdening his religious use of feathers. The United States has shown, however, that it cannot serve its interest in protecting eagles solely through anti-poaching laws, because it cannot enforce anti-poaching laws without restricting possession of eagle parts. To illustrate, the government has submitted numerous affidavits from the Department of Interior, including an affidavit from Lucinda D. Schroeder, a Special Agent with the U.S. Fish and Wildlife Service, which states:

The fact that the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act both contain possession prohibitions, and not just prohibitions *696 against killing the birds, is significant for law enforcement efforts. This is because there is no reasonable forensic method by which law enforcement can determine if a bird was accidentally or intentionally killed, killed a hundred years ago, or killed yesterday. (Docket No. 38, Ex. 2 at ¶ 8.)

That is, the government cannot enforce its eagle protection laws without banning possession, at least to some degree, because of the low probability of discovering poachers in the act. ( See Affidavit of Edgardo O. Espinoza, Docket No. 38, Ex. 3 at ¶ 4) (“There is no scientific test currently available that could determine whether the part came from the Repository or any other source.”). The situation with regard to bald and golden eagle feathers is similar to other crimes, such as child pornography, where it is difficult to prove the underlying illegal act once the item is reduced to possession. 18 U.S.C. § 2252(a)(4)(B).
One reason why enforcement of the poaching ban presents such difficulties is the existence of an extensive black market for bald and golden eagle parts, which is driven primarily by the money prizes offered at pow-wow dancing competitions. (Affidavit of Douglas Goessman, Docket No. 38, Ex. 7 at 4-5.) Due to the difficulty in stemming this black market, the government has shown that it is virtually impossible for the Fish and Wildlife Service to protect bald and golden eagles without some ban on possession. ( Id. at 9-10) (“t is my belief, any additional exemptions to the BGEPA, such as having the USFWS ... begin issuing eagle feathers to persons other than Native Americans ... would eventually devastate state, federal and tribal conservation law enforcement efforts to protect bald and golden eagles.”). Prohibiting possession of contraband is often asserted as a valid means of eliminating the fruits of an illegal act. See, e.g. Employment Division, Dept. Of Human Resources of Oregon v. Smith, 494 U.S. 872, 905, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990); Osborne v. Ohio, 495 U.S. 103, 109-110, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990).

In addition, the United States has demonstrated that poaching presents a significant challenge to bald and golden eagles, due to the low reproductive rates of those species. (Affidavit of Jody Gustisus Millar, Docket No. 38, Ex. 10.) Bald eagles, for instance, do not mature until they are between four and six years old and, once they do begin producing young, do so at an average rate of only two per year. ( Id. at ¶ 14.) Due to the low reproductive rates, bald eagle populations rely on a high survival rate for adults, as opposed to a high production of young, to ward off extinction. (Id. at ¶ 15.) If poaching were to increase-due to an increased demand for black market bird parts, which could itself be caused by the loosening of the anti-possession laws-the eagle populations would likely suffer. ( Id. at ¶ 18) (“

• n a long-term or widespread basis, unregulated take of mature bald eagles can depress, and potentially endanger the population.”)

It was against this background of enforcement difficulties in the face of a black market in eagle parts-leading to a potential loss in eagle populations-that the Department of Interior sought to fashion a rule which preserves the traditional Native American use of feathers for religious purposes. See 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....”). The United States and the defendant both agree that protecting the traditional religious customs of federally recognized Indian tribes is a compelling government interest. It was in furtherance*697 of that interest that the Department created the eagle repository system, currently under which Native Americans face a waiting period of up to two years after submitting a request before receiving feathers, depending on the size and nature of the request. The defendant argues that, were he allowed to request eagle parts through the repository system, the wait would not be significantly lengthened, and therefore, that the BGEPA regulations are not narrowly tailored. However, the court finds that the defendant takes too narrow a view of the situation.

The Department of Interior cannot limit access to the eagle repository to “sincere adherents of Native American Religions” as the defendant suggests. Such a rule would violate the Establishment Clause. See Rice v. Cayetano, 528 U.S. 495, 514-17, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000). If the eagle repository is to be opened up to all sincere adherents of Native American Religions, it must be opened up to all sincere adherents of all religions. Id. As the United States has shown, that could end up being a significant number of people, which would severely limit Native Americans' access to feathers through the repository system.FN4 It would also, as highlighted above, create enforcement problems. Before arresting any person for illegal possession of eagle feathers, federal agents would be forced to determine, on a case-by-case basis, whether the eagle feathers were indeed a necessary part of that individual's religious practice. (Docket No. 38, Ex. 2 at ¶ 13.) That is an untenable situation. (Id.) (“t is virtually impossible as a practical matter to challenge an individual's assertion that he holds a sincere religious belief that requires the use of eagle feathers or other parts.”)

FN4. For instance, the members of the Wiccan and Santeria religions would likely require feathers. (Docket No. 38, Ex. 14 at ¶ 4; Ex. 15 at ¶ 6 “t would be impossible to handle the number of eagle feather permits if virtually anyone could apply for this type of permit without increased staff and major funding.”). In particular, the Santeria religion involves a sacrifice to Osain, an “extremely important deity” who requires a “ritual preparation [which] consists in preparing a gourd which ideally should contain up to 101 heads of different birds. Selected feathers of various birds contained in Osain's [gourd] are: owl, EAGLE, turkey, vulture, hawks, parrots, canaries, etc. Again, the feathers and/or the heads of the birds symbolize the powers of Osain as the Orisha of the woods and all the magical herbs and roots contained therein.” (Docket No. 38, Ex. 18 at p. 5).

By predicating participation in the eagle repository on an ostensibly political categorization, and not a religious one, the Department of Interior deftly side-stepped the Establishment Clause and struck a careful balance between eagle preservation, and the preservation of Native American cultures. Were this category to be nullified, and the ban on eagle possession for non-official tribe-members lifted, it is possible that both government concerns would be thwarted-that is, both eagle populations and Native American cultures would suffer.

In United States v. Antoine, 318 F.3d 919, 922-23 (9th Cir.2003), the Ninth Circuit Court of Appeals addressed whether or not the BGEPA violated the RFRA by barring non-members of federally recognized Indian tribes from accessing eagle feathers-the very issue we address today. In Antoine, the court recognized that, since the government had a compelling interest in protecting eagle populations to some degree, and because those populations are finite, “the burden on religion is inescapable; the only question is who to burden and how much.” Id. at 923. In Antoine, as in this case, the defendant sought “to burden other people's religion more and his religion less,” but as the *698 Ninth Circuit pointed out, “[t]his is not a viable RFRA claim; an alternative can't fairly be called ‘less restrictive’ if it places additional burdens on other believers.” Id., see also United States v. Hugs, 109 F.3d 1375, 1379 (9th Cir.1997) (holding that the BGEPA permit scheme did not violate the RFRA); U.S. v. Sandia, 188 F.3d 1215, 1218 (holding that the defendant's prosecution for selling protected eagles under the BGEPA did not violate the RFRA); but see United States v. Hardman, 297 F.3d 1116, 1135 (10th Cir.2002) (holding that the factual record did not, at the time, support a ruling on the RFRA issue).

The BGEPA regulations strike a delicate balance. Were the BGEPA to simply ban possession for all persons, the government would have succeeded in protecting eagle parts, but failed to protect Native American culture. Were the BGEPA to allow all persons to possess the eagle parts for any religious use, it would create severe difficulties in enforcing poaching laws, because it is (1) very rare to catch poachers in the act of poaching, and (2) nearly impossible to determine whether the birds were poached or not, when confiscated. Not only would the waiting period swell, making it difficult for the recognized tribes to use birds for their ceremonies, but the black market would also increase, since more people would be able to possess eagle feathers-legally or illegally procured-without fear of prosecution. In the long run, eagle populations would suffer. In the ensuing eagle scarcity, the government would have failed at both of its objectives.

In forming its categorization on a political basis, the government has balanced its two competing objectives in the only way this court has been shown to be possible. By limiting the number of people who can possess the feathers, the government succeeds in limiting the potential customers for the black market in eagle feathers. It also keeps the waiting period for the eagle repository low. By granting access to the feathers only to members of the officially recognized tribes, the government protects those tribes in the only way possible under the Establishment Clause. The government has met its burden in showing that the regulations further a compelling government interest by the least restrictive means.

II. Defendant's Alternative Defenses Under the MBTA
Alternatively to his RFRA defenses, the defendant claims that he has not been properly charged under the MBTA because he did not actually “barter” or “possess” the contraband migratory bird feathers, as those terms are used in that statute. The court disagrees and finds that he was properly charged under the MBTA.