indianz.com your internet resource indianz.com on facebook indianz.com on twitter indianz.com on Google+ indianz.com on soundcloud
phone: 202 630 8439
Indian Law Online Master Degree - University of Tulsa College of Law
Advertise on Indianz.Com
Home > News > Headlines
Print   Subscribe
Appeals court reinstates charges in eagle taking case
Friday, May 9, 2008
Filed Under: Law

Tribal religious ceremonies are not exempt from the reach of the law, a federal appeals court ruled on Thursday.

In a case being watched closely across Indian Country, the 10th Circuit Court of Appeals reinstated misdemeanor charges against a member of the Northern Arapaho Tribe who shot a bald eagle for use in the Sun Dance. Winslow Friday never obtained a permit to take the sacred bird, which is protected under federal law.

Friday argued that the permitting process infringed on his religious rights. In the history of the Bald Eagle and Golden Eagle Protection Act, which was first passed in 1940, only four permits to take eagles for tribal ceremonies have been processed.

Tribal spiritual leaders also testified about the burdens they face in trying to obtain eagle feathers and parts under an exemption in federal law aimed at protecting Indian rights. The National Eagle Repository has a several-year backlog and doesn't always provide birds in suitable condition for ceremonies like the Sun Dance.

Despite the flaws, the 10th Circuit ruled that the scheme complies with the Religious Freedom Restoration Act. The law bars federal agencies from taking actions that "substantially" burden a person's exercise of religion without a "compelling governmental interest."

Agencies must also demonstrate that they are taking such action by the "least restrictive means" possible.

In Friday's case, the appeals court said he conceded that the government has a compelling interest in protecting eagles. So even though the permitting process is not well publicized and even though the repository moves slowly, the system does not infringe on tribal religious rights, Judge Michael W. McConnell wrote for the majority.

"By enacting a law banning the taking of eagles and then permitting religious exceptions, the government has tried to accommodate Native American religions while still achieving its compelling interests," the 44-page decision stated. "That accommodation may be more burdensome than the Northern Arapaho would prefer, and may sometimes subordinate their interests to other policies not of their choosing."

"Law accommodates religion; it cannot wholly exempt religion from the reach of the law," McConnell, a Bush nominee, continued.

The decision reverses one made by a federal judge in Wyoming, who had dismissed the charges against Friday. In a sometimes scathing critique, Judge William F. Downes blasted the Interior Department for failing to truly accommodate the rights of Indian people.

"Although the government professes respect and accommodation of the religious practices of Native Americans, its actions show callous indifference to such practices," Downes wrote in an October 2006 decision that won praise in Indian Country. "It is clear to this court that the government has no intention of accommodating the religious beliefs of Native Americans except on its own terms and in its own good time."

The 10th Circuit, however, left open the possibility for future challenges. Since Friday never actually applied for a permit to take an eagle, the court wasn't able to determine whether the process is "improperly restrictive, burdensome, unresponsive or slow," McConnell noted.

In an earlier case, Saenz v. DOI, the 10th Circuit dismissed charges against Joseluis Saenz, a Chiricahua Apache man who was carrying eagle feathers without a permit. But since the Chiricahua Apaches were terminated in the late 1800s, the court said Saenz wouldn't have able to apply for a permit since permits are restricted to members of federally recognized tribes.

Congress passed the Religious Freedom Restoration Act in 1993 after the U.S. Supreme Court ruled that practitioners of the Native American Church could be charged for violating laws against the use of peyote.

10th Circuit Briefs:
US Opening Brief | Friday Response Brief | US Reply Brief

Related Stories:
10th Circuit to hear Arapaho eagle killing case (11/26)
Appeal filed in Northern Arapaho eagle case (3/28)
Appeal planned in Arapaho eagle shooting case (01/29)
Editorial: Respect tribal religious beliefs (11/16)
DOJ to appeal ruling in Arapaho eagle killing case (11/13)
Judge issues ruling in Arapaho eagle killing case (10/17)
Charges dismissed in Northern Arapaho eagle killing (10/9)
Arizona man charged for having eagle feathers (07/26)
Arapaho man seeks dismissal of eagle shooting case (05/26)
More than 4,000 waiting for eagles, eagle parts (5/24)
Northern Arapaho Tribe argues for religious rights (5/23)
Bald eagle faces removal from endangered species list (02/14)
Eagle feather repository has just five employees (12/09)
Non-Indian eagle feather case returns to federal court (07/19)
>DOI to pay Apache man $50K for seized feathers (04/12)
Eagle feather ruling leaves open questions (08/06)
Appeals court upholds eagle protection laws (1/17)
Man denies crime for selling artifacts (11/16)
Indian man convicted of eagle violations (10/29)
Court to rehear eagle protection cases (8/9)
Minn. man sentenced for eagle violation (5/31)



Copyright © Indianz.Com
More headlines...
Stay Connected:
On Facebook

On Twitter

On Google+

On SoundCloud
Local Links:
Federal Register | Indian Gaming | Jobs & Notices | In The Hoop | Message Board
Latest News:
Indian Health Service discusses LGBT issues at 'historic' meeting (7/28)
Haskell students to study fracking on North Dakota reservation (7/28)
Erica Pinto makes history as first woman leader of Jamul Village (7/28)
Native Sun News: Young artist wins top award at Native market (7/28)
Lakota Country Times: Oglala Sioux Tribe hosts war pony races (7/28)
Steve Russell: The hypocrisy of race and Cherokee citizenship (7/28)
Terese Marie Mailhot: I was raised to be angry at White women (7/28)
Dina Gilio-Whitaker: Indian Country stuck with bad Republican (7/28)
Aaron Angerman: Alaska Natives not consulted about mine plan (7/28)
IHS hired physician who was sanctioned by Justice Department (7/28)
Cherokee Nation candidate emerges victorious in new election (7/28)
Ponca Tribe reclaims small part of ancestral lands in Nebraska (7/28)
Tuscarora Nation returns to ancestral home in North Carolina (7/28)
9th Circuit sides with Suquamish Tribe in fishing rights dispute (7/28)
10th Circuit affirms convictions of former Paiute Tribe employee (7/28)
Warm Springs Tribes welcome early start to huckleberry season (7/28)
Young man from Omaha Tribe sentenced for sexual abuse of child (7/28)
Makah Nation man charged for assault during attempted escape (7/28)
Miami Nation stays out of public school mascot debate in Indiana (7/28)
Tohono O'odham Nation wins round in casino battle with Arizona (7/28)
Wisconsin asks Supreme Court to rule on Ho-Chunk Nation poker (7/28)
Navajo Nation Council passes tax on alcohol at gaming facilities (7/28)
Seminole Tribe reiterates request for mediation in casino dispute (7/28)
Mohegan Tribe fired worker who helped casino regular break rules (7/28)
War of words escalates on mine at sacred Apache site in Arizona (7/27)
Senate Committee on Indian Affairs to take up land-into-trust fix (7/27)
Senate panel sets hearing on substance abuse in Indian Country (7/27)
Red Lake Nation schedules August 19 referendum on liquor sales (7/27)
Poarch Creeks win injunction blocking county from imposing tax (7/27)
Native Sun News: Indian elders suffer from higher dementia risk (7/27)
Lakota Country Times: Lawmakers hear about tribal economies (7/27)
Mark Trahant: Press the Republican candidates on Indian issues (7/27)
Brandon Ecoffey: Race remains an issue for police in Rapid City (7/27)
Cynthia Dunne: Justice has been served in Leonard Peltier case (7/27)
Carly McIntosh: Native name brings me closer to Mother Earth (7/27)
Mississippi Choctaw family seeks answers for county jail death (7/27)
Judge can't reopen Keepseagle case after $380M goes unspent (7/27)
Eastern Pequot Tribal Nation won't drop federal recognition bid (7/27)
Editorial: New Jersey governor quietly obliterates three tribes (7/27)
Aquinnah Wampanoag Tribe wins approval for liquor ordinance (7/27)
Seminole Tribe reports lack of progress in casino pact dispute (7/27)
Catawba Nation in talks to bring Hard Rock into gaming plans (7/27)
Graton Rancheria to break ground this fall on hotel at casino (7/27)
Sen. Barrasso defends quick movement on transportation bill (7/24)
Tribal gaming industry sees modest growth to $28.5B in 2014 (7/24)
House lawmakers introduce new version of land-into-trust fix (7/24)
Special Trustee Vince Logan reaching out to Indian Country (7/24)
Native Sun News: Deadwood mayor welcomes Native culture (7/24)
Lakota Country Times: Police aim to improve race relations (7/24)
James Giago Davies: Mixed-race Indians shamed over blood (7/24)
more headlines...

Home | Arts & Entertainment | Business | Canada | Cobell Lawsuit | Education | Environment | Federal Recognition | Federal Register | Forum | Health | Humor | Indian Gaming | Indian Trust | Jack Abramoff Scandal | Jobs & Notices | Law | National | News | Opinion | Politics | Sports | Technology | World

Indianz.Com Terms of Service | Indianz.Com Privacy Policy
About Indianz.Com | Advertise on Indianz.Com

Indianz.Com is a product of Noble Savage Media, LLC and Ho-Chunk, Inc.