Indian Country Today
DENVER – The time-honored and exclusive right of American Indians to use eagle feathers for religious purposes has been challenged by a Utah judge whose findings will be appealed in the Denver 10th Circuit Court.
If the challenge is upheld and implemented, non-Natives would be able to obtain eagle feathers and parts from the National Eagle Repository for religious purposes, according to a Utah District Court judge.
Allowing non-Indians to apply would end a situation in which they are “subject to criminal prosecution if they possess eagle feathers at all” even though they may be “adherents to the very same religions” as Indian practitioners, Judge Dee Benson said.
In fact, American Indian groups and individuals disagree over whether non-Natives should engage in traditional Native spiritual practices, the lower court said.
The Justice Department confirmed Aug. 14 that the government has filed its opening brief appealing the Utah judge’s finding, paving the way for legal arguments over laws that preserve eagles, protect the practices of federally recognized tribes, and safeguard religion from undue government interference.
Two laws are central to the dispute. The Bald and Golden Eagle Protection Act, the “Eagle Act,” prohibits the possession of eagle feathers and parts but exempts enrolled members of federally recognized tribes who use them for religious purposes. The Religious Freedom Restoration Act prohibits the government from hindering religious practices unless the interference is to meet compelling government needs in the least restrictive way available.
The government’s appeal from the lower court’s challenge to its eagle feather policies centers on the case of Samuel Ray Wilgus Jr., a non-Native Utah resident, who was charged with illegal possession of feathers in 2002 under the Migratory Bird Treaty Act and the Eagle Act.
Wilgus lived with a Paiute family and received religious training in the Native American Church. According to the court, he was gifted with eagle feathers by an individual and several groups, but after a traffic stop revealed eagle feathers in a truck he was riding in, he was charged with illegal possession.
He appealed to the 10th Circuit, which sent the case back to the lower court in Utah, asking the government to determine whether its eagle feather program is the least restrictive method under RFRA of protecting eagles and fulfilling tribal obligations.
The court also questioned whether eagle populations would be threatened if non-Indians were allowed to have eagle feathers for religious purposes, noting that the bald eagle has been removed from the Endangered Species Act list.
“This presents a problem for those non-Native Americans who have adopted the religious beliefs and practices of Native Americans, but who cannot legally possess the eagle feathers that play a significant role in many Native American religions,” Benson said.
According to the lower court, the 10th Circuit originally suggested that widening the ranks of non-Indian religious practitioners could foster, rather than hinder, Native American religions.
But in its appeal, the government said the lower court incorrectly held that the United States’ “compelling interest is in fostering Native American religion generally instead of accommodating federally recognized Indian tribes,” citing the government’s historical obligation to respect Native American sovereignty.
The Eagle Act is the least restrictive means of achieving the government’s need to preserve the eagle population and protect tribal culture given that eagles are a limited resource threatened by an increase in demand for feathers by non-tribal members, the appeal said.
An already overtaxed eagle repository, a probable increase in the existing years-long wait for tribal members to receive feathers, possible increases in the illegal sale of eagles and eagle parts, and the likelihood that eagle populations would decline if non-Indians were allowed feather permits were also noted.
Fish and Wildlife Service records show there have been crimes involving 24,984 eagle parts over the last decade. FWS contends black market prices and activity are increasing “because there is a very high demand and a relatively short supply.”
Whole golden eagles sell for up to $1,200 and immature golden eagle central tail feathers for up to $200, the FWS said, with prices driven up in part by the lure of prize money from powwow dance contests, judged partially by the quality of contestants’ regalia.
Allowing non-Indian practitioners of Native religions to possess eagle feathers would require FWS to be responsible for determining which practices stem from Native American religions, the government said.
Allowing non-Indians to apply to the repository “is not a less restrictive means of furthering the government’s compelling interests, but is instead a means of defeating those interests.”
Another option considered by the lower court – allowing non-Indians to obtain feathers from tribal members – would also increase the black market and poaching.
The government requested the 10th Circuit Court schedule oral arguments to assist in resolving the questions raised on appeal. It asks the appellate court to reverse the lower court, which also found that Wilgus’ prosecution is constrained by RFRA.