Legal Commentary

In 2002, Samuel Wilgus, a non-Indian, was prosecuted for illegal possession of eagle feathers under the Migratory Bird Treaty Act and the Eagle Act.  Wilgus received training in the Native American Church and was given the feathers as a gift. Eagle feathers are an important part of many native religions, but currently, only American Indians have the right to use and posses eagle feathers. This poses a problem for non-native followers of Indian religions.  Should someone like Wilgus have the same right to posses eagle parts as Indian practitioners?

The problem with increasing the number of people who may posses eagle parts is that there are already more requests than available parts.  American Indians who want eagle parts must place requests with the National Eagle Repository and the Repository's waiting list is already extensive.  Currently, there are over 6000 Indians on the waiting list. Requests for feathers can take up to half a year and requests for whole eagles can be as long as four years.  Opening the list up to non-Indians could effectively bar many Indians from ever receiving eagle parts

At the same time however, criminalizing a person?s practice of their religion based on race is obviously concerning. Whether such regulations are permissible depends on whether they serve a compelling governmental interest and use the least restrictive means possible to further that interest. What this compelling interest is however, is the question that is currently being appealed to the 10th circuit.

According to the Utah district court, the compelling interest served by the regulations is the fostering of native religions generally.  Consequently, the district court found that limiting eagle parts to Indians was not narrowly tailored to serve this interest.  On appeal the government argues that the district court erred in its definition of the compelling interest.  According to the government, the compelling interest is the accommodation of federally recognized tribes and the protection of Indian culture.

It seems to me that the government?s characterization of the interest is the correct one.  It doesn?t strike me as right that the protection of Indian religions can be used as the basis for a decision that would prevent Indian people from being able to practice their religion.  Such catch 22s are all too frequent in the field of Indian law, hopefully this will not become another example.