Constitutional Law

10th Circuit: Eagle feathers only for American Indians

By By The Associated Press

SALT LAKE CITY ? Restricting use of eagle parts and feathers to members of federally recognized American Indian tribes for religious purposes does not violate the religious freedom of non-Indians seeking the same right, a federal appeals court ruled yesterday.

The Denver-based 10th U.S. Circuit Court of Appeals found that such a prohibition, under the Bald and Golden Eagle Protection Act, does not violate the federal Religious Freedom Restoration Act.

Yesterday's ruling in U.S. v. Wilgus comes after several cases in which non-Indians, and one man from a tribe that is no longer recognized by the federal government, sought the right to use feathers in their religious practices.

Eagle feathers are believed by many Native Americans to be sacred.

Federal law requires that eagle carcasses be sent to the National Eagle Repository in Denver and that any tribe member wishing to use eagle feathers or parts in ceremonies apply for a permit to do so. The unanimous three-judge panel noted that the repository "receives significantly more requests than it has available eagle carcasses" so there is already a long waiting period to fulfill permits.

All the cases noted in yesterday?s ruling weighed freedom of religion against the government's ability to protect the eagles and help maintain the centuries-old religious practices of Native Americans.

Federally recognized tribe members agree the law should restrict access to eagle parts to those whose ancestors have been practicing such ceremonies for centuries.

"As native people, we appreciate that others want to understand our philosophies, understand the sacredness of things. And I understand that many non-natives are looking for spirituality and looking for something sacred to hold onto," said Lacee A. Harris, a Northern Ute medicine man and mental health therapist in Salt Lake City.

However, Harris likened non-Indians' wanting to possess indigenous sacred objects to an outsider entering a Christian church and trying to perform that religion's ceremonies.

"To us, this is a very sacred thing," he said.

The cases cited in yesterday's ruling include that of Samuel Ray Wilgus Jr., who claims to be an adopted member of Utah's Paiute Indian Peak Band.

During a traffic stop in 1998 near the town of Fillmore, about 150 miles south of Salt Lake City, authorities seized more than 100 eagle feathers from Wilgus. He was later charged with possessing the feathers without a permit, and pleaded guilty with the provision that he could appeal.

Wilgus was sentenced to 100 hours of community service, but maintained that it was a violation of his religious freedom.

A federal district court disagreed, but the 10th Circuit at the time reversed the decision and ordered a hearing on whether the Bald and Golden Eagle Protection Act was "the least restrictive means of serving the government's interests."

The district court then found that the act did indeed violate Wilgus' rights to religious freedom.

The appeals court has now overturned that ruling.

"We are sensitive to the sincerity of Wilgus' religious beliefs, and we do not question either the authenticity or the weight of his religious experience among Native Americans," Senior Judge David M. Ebel wrote for the 10th Circuit.

However, Ebel noted that "in light of the options before the federal government, the regulations at issue are the least restrictive means available."

Wilgus says he is, in essence, being banned from practicing his religion.

"It's totally discriminatory to say I don't have the right to practice my religion the way I have been taught, and by the rights I have been given by Native American spiritual leaders because I can't prove that I am Indian under the law, because I am white," Wilgus said yesterday. "I thought we all had the right to religious freedom in this country."

Wilgus' lawyer, Joseph Orifici, says he will appeal the 10th Circuit decision to the U.S. Supreme Court.

"It not only discriminates against my client, but it discriminates against any Native American who lives in this country who is not a member of a federally recognized tribe," Orifici said.

The U.S. Justice Department had no immediate comment on the ruling.

However, Justice Department lawyers previously have argued that demand for eagle feathers far exceeds the federal government's supply, and that exemptions to the law should only be provided if they don't undermine the intent of the statute.

Other similar cases in the last decade included a New Mexico man who is a descendant of Chiricahua Apaches, a tribe no longer recognized by the federal government, and another Utah man who claimed he was given an eagle feather by a Hopi religious leader. Both men had their feathers seized and were prosecuted.

Full post as published by First Amendment Center on March 29, 2011 (boomark / email).