Appeals court reinstates charges in eagle taking case

Environment | Law | National

Friday, May 9, 2008

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