Appeals court denies rehearing in eagle protection case

Environment | Law

Tuesday, July 8, 2008

A member of the Northern Arapaho Tribe who took a bald eagle for use in the Sun Dance ceremony lost his chance for a rehearing on Monday.

Winslow Friday shot the sacred bird on the Wind River Reservation in Wyoming. Since he lacked a permit, he was charged by the federal government with a misdemeanor count of violating eagle protection laws.

Judge William F. Downes dismissed the charge in October 2006. In a harshly worded ruling that criticized the government for failing to respect tribal rights. "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 decision stated.

But the 10th Circuit Court of Appeals on May 8 reinstated the charge. The unanimous ruling from the three-judge panel said the government has done its best to protect eagles while addressing tribal beliefs.

"Law accommodates religion; it cannot wholly exempt religion from the reach of the law," Judge Michael W. McConnell wrote for the majority.

The court also noted that Friday lacked standing to challenge the permitting system because he never applied for one. That bypassed the ruling by Downes, who had determined that the process was so slow-moving that it would have been impossible to obtain a permit.

Backed by his tribe, media organizations and the American Civil Liberties Union, Friday asked a full panel of the 10th Circuit to rehear the case. Without comment, the court rejected the request in a short order yesterday.

Friday's only recourse now lies with the U.S. Supreme Court, which has ruled in one significant religious rights case under Chief Justice John G. Roberts, In February 2006, the court allowed a religious group in New Mexico to use a hallucinogenic tea even though it is considered an illegal substance.

Comparisons have been made between the case and others involving religious freedoms. But so far, it has not led to increased protections for Native American practitioners.

Just last week, the 9th Circuit Court of Appeals rejected a rehearing in another eagle protection case. Two California men, who use eagle feathers in Native American Church ceremonies, cited the Supreme Court ruling in hopes of avoid federal prosecution.

But neither the 10th Circuit nor the 9th Circuit have extended the reasoning adopted by the Supreme Court to eagle laws. Even though bald eagles are no longer considered endangered species, the circuit courts have noted they are still an important national symbol worthy of protection.

Prior to the Supreme Court case, the 10th Circuit did rule in favor of an Apache man who uses eagle feathers in ceremonies. Even though the man is not a member of a federally recognized tribe, the court said he could not be prosecuted because the government couldn't explain why it limits permits to recognized tribal members.

The 9th Circuit has taken a different view in its cases. A Native man from Canada and the two California men, who descend from tribes in Mexico, were unable to convince the court to free them from prosecution.

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.

Alternatively, members of recognized tribes can apply for eagle feathers and parts through the National Eagle Repository. But it can take years to receive an answer -- an issue that has not been litigated, the 10th Circuit pointed out in Friday's case.

"We are not oblivious to the possibility that the government's permit process for the religious taking of eagles may be more accommodating on paper than it is in practice," the court said. "If so -- if the process is improperly restrictive, burdensome, unresponsive or slow -- we trust that members of the tribe will not hesitate to vindicate their rights either through petition or in a proper suit."

10th Circuit Documents:
Decision: US v. Friday | US Opening Brief | Friday Response Brief | US Reply Brief