Here is the opening Fifth Circuit brief in Mc Allen Grace Brethren Church v. Dept. of Interior:
Update (8/11/13): Interior Appellee Brief
No lower court opinion is available, but here is the cross-motions motion for summary judgment below:
Bald and Golden Eagles Protection Act
Ninth Circuit Affirms Conviction for Selling Eagle Parts
Here are the materials in United States v. Wahchumwah:
The court’s summary:
The panel affirmed in part and reversed in part a criminal judgment in a case in which a jury convicted the defendant of offenses relating to the sale of eagle parts. The panel held that an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect does not violate the Fourth Amendment. The panel held that Count 2 charging the defendant with offering to sell Golden Eagle tails, in violation of the Bald and Golden Eagle Protection Act, and Count 3 charging the defendant with the subsequent sale of a Golden Eagle tail, in violation of the Lacey Act, are multiplicitous because the offer to sell is a lesser included offense. The panel held that Count 4 charging the defendant with offering to sell a pair of eagle plumes from a collection of plumes and Count 5 charging him with the subsequent sale of a pair of plumes, both premised on a violation of the Bald and Golden Eagle Protection Act, are likewise multiplicitous. The panel rejected the defendant’s objection to the admission of certain photographs of eagles and other bird parts under Fed. R. Evid. 403. The panel held that the district court did not err under the Confrontation Clause by permitting officers to testify to receiving complaints from unnamed tribal members that the defendant was selling eagle parts, when the complaints were offered not to prove that the defendant was selling eagle parts, but merely to explain why federal agents began investigating him.
I found this portion of the opinion a little odd (not the opinion, but what it describes):
United States Fish and Wildlife Service agents began an undercover investigation of Wahchumwah based on anonymous complaints that he was selling eagle parts. As part of this investigation, Special Agent Robert Romero began developing a rapport with Wahchumwah in April 2008, at a powwow in Missoula, Montana. Romero claimed to have an interest in eagle feathers, and showed Wahchumwah a Golden Eagle tail he had brought with him. Later that evening, Romero bought a set of eagle wings from Wahchumwah for $400.
It just seems odd to use eagle parts for the purpose of entrapment….
Update: A related unpublished opinion in United States v. Jim is here.
DOJ Issues New Eagle Feather Policy re: Tribal Members
Here. The full policy is here.
From the press release:
The policy provides that, consistent with the Department of Justice’s traditional exercise of its discretion, a member of a federally recognized tribe engaged only in the following types of conduct will not be subject to prosecution:
· Possessing, using, wearing or carrying federally protected birds, bird feathers or other bird parts (federally protected bird parts);
· Traveling domestically with federally protected bird parts or, if tribal members obtain and comply with necessary permits, traveling internationally with such items;
· Picking up naturally molted or fallen feathers found in the wild, without molesting or disturbing federally protected birds or their nests;
· Giving or loaning federally protected bird parts to other members of federally recognized tribes, without compensation of any kind;
· Exchanging federally protected bird parts for federally protected bird parts with other members of federally recognized tribes, without compensation of any kind;
· Providing the feathers or other parts of federally protected birds to craftspersons who are members of federally recognized tribes to be fashioned into objects for eventual use in tribal religious or cultural activities.
Federal Court Denies Injunction in Desert Eagle Delisting Challenge
Here are the materials in Center for Biological Diversity v. Salazar (D. Ariz.):
Initial Thoughts on Wilgus Eagle Feather Decision
The analysis of the Tenth Circuit in United States v. Wilgus is striking. Of note, the court adopts a sort of limiting principle that it hopes meets all of the competing interests, and relies heavily on Morton v. Mancari:
By adopting the federally-recognized tribes version of the interest, however, we remain on safe ground, based on the Supreme Court’s conclusion that federallyrecognized tribes are political—rather than religious or racial—in nature. See Morton, 417 U.S. at 554. As long as the federal government takes action toward federally-recognized tribes as political entities, supported by the specific provisions of the Constitution that grant Congress exceptional powers vis-à-vis such tribes, the government can avoid unconstitutionally favoring one religion over another. See Cohen§ 14.03[2][c][iii] (noting that equal protection-based claims by non-Indians challenging religious exemptions for Indians have been rejected under the Morton reasoning).
On one hand, this formulation does, to some extent, meet the Supreme Court’s consideration of prior American Indian religious freedom cases. I count three (Bowen v. Roy, Lyng, and Employment Div. v. Smith). Only one of those cases (Lyng) involved federally-recognized tribes or members of federally-recognized Indians. But it is a lot to place on Mancari, which was a purely secular case, by the way.
Moreover, the real argument in favor of the exemption for Indian tribes and their members, according to the court, “spring[s] from history and from the text of the Constitution ….” This is what I usually refer to in my Indian law classes as a “soft trust,” a “hard trust” being a federal obligation expressly and specifically articulated in a statute, reg, or treaty. The “soft trust” largely is unenforceable against Congress, but may be used against the Executive branch to stave off negative government action and for other purposes. Ironically, the Supreme Court soon will decide U.S. v. Jicarilla Apache Nation, which at its heart appears to be an attempt by the Dept. of Justice to eliminate all forms of the “soft trust.”
NYTs/Greenwire Coverage of Wilgus Decision
Here is the article.
Omaha Tribe Member’s Challenge to the Eagle Act Fails
The lesson learned, once again, is to request a permit to take eagles. Here are the materials in U.S. v. Bertucci (D. Neb.):
Briefing in Wilgus Eagle Act/RFRA Appeal in Tenth Circuit
The Tenth Circuit briefing in United States v. Wilgus is complete:
Friday Eagle Criminal Trial to be Heard in Tribal Court
Here is the news article via Pechanga, and here are the documents:
LATs Article on Eagle Cases
From the LATs:
On Wyoming’s Wind River Indian Reservation, Winslow Friday is preparing to surrender in his long fight with the federal government.
The seeds of the conflict were planted four years ago when Friday shot a bald eagle out of a tree. His cousin needed a tail fan for an upcoming Sun Dance, the Northern Arapaho tribe’s most important religious ceremony, and Friday wanted to help.
So when Friday spotted the bird, he seized his chance.
Charged with killing a bald eagle in violation of federal law, Friday had argued that the law hinders the practice of his religion — a battle closely watched on the reservation.
“Some agreed with what he did, some didn’t,” said tribal spokesman Donovan Antelope. “But they all agree with the reason he did it — for the Sun Dance. We know he wasn’t doing it just to kill an eagle.”
Now, though, Friday is giving up. Having exhausted his legal options, he’s hoping for a plea agreement that will avoid a trial. “The attorneys say that [a trial] would be a losing battle,” said Friday, 25, a former oil field worker studying to be a civil engineer.
Friday’s case represents the latest and most high-profile fight in a string of battles over how to balance conservation with religious liberty.
Turtle Talk 
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