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.

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ICT Article on the Wilgus Case

From ICT:

The time-honored and exclusive right of American Indians to use eagle feathers for religious purposes has been challenged by a Utah judge whose findings will be appealed in the Denver 10th Circuit Court.

If the challenge is upheld and implemented, non-Natives would be able to obtain eagle feathers and parts from the National Eagle Repository for religious purposes, according to a Utah District Court judge.

Allowing non-Indians to apply would end a situation in which they are “subject to criminal prosecution if they possess eagle feathers at all” even though they may be “adherents to the very same religions” as Indian practitioners, Judge Dee Benson said.

In fact, American Indian groups and individuals disagree over whether non-Natives should engage in traditional Native spiritual practices, the lower court said.

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Commentary on the Inconsistencies in American Indian Religious Freedom Cases

We’ve commented before on the irony that the Bald and Golden Eagle Protection Act sharply limits the religious freedom of American Indians as a practical matter (taking months or years before Indians can navigate the National Eagle Repository system), but at the same time, federal constitutional law virtually prohibits the federal government from prosecuting non-Indians under the Act. As the Wilgus/Hardman and the Friday cases demonstrate, non-Indians have more practical ability to exercise Indian religious practices than Indians do (our commentary here).

Another interesting twist is developing in American Indian religious freedom. Here is a short opinion in a case out of the Western District of Oklahoma (United States v. Velezquez) in which the government is successfully prosecuting non-Indians for peyote use and possession, despite their claims that it is unfair for Indians to be exempted from the law (Valazquez DCT Order & Velazquez Motion to Dismiss) — the exact same claim made by the non-Indian defendants in the Wilgus/Hardman cases.

There are a bunch of lower court cases pre-dating the Religious Freedom Restoration Act (the statute usually in question in the eagle cases, too) denying the equal protection claims of non-Indians. But that was before Gonzalez v. UDV, in which the Supreme Court applied RFRA to strike down a federal ban on hoasca. In the Velazquez case, the court made no effort to discuss UDV, but I suspect there’s a strong argument that RFRA might apply here.

And thus the irony. Why does RFRA protect non-Indians in the eagle cases, but not in the peyote cases?

National Eagle Repository Swamped

From Indianz:

The National Eagle Repository in Colorado has its hands full with about 6,000 requests for eagle feathers, eagle parts and whole eagles.

Orders are filled on a first-come, first-served basis. Workers at the center make 100 to 150 shipments of loose feathers a week and about 30 whole eagles a week.

“Some just want the tails. Some just want the wings. A lot of people are holding out for the perfect whole bird. Perfect is hard to come by,” supervisor Bernadette Atencio told The Denver Post.

The wait for loose feathers is about six months. The wait for a whole bird can be up to four years.

“There is a lot of red tape for Native Americans to practice their religion using eagles. It is a very big hindrance,” Myron Pourier, a cultural-affairs official for the Oglala Sioux Tribe of South Dakota, told the paper.

Getting a permit to possess eagle parts takes time too. The wait can be months or years.

“Everyone in Indian Country agrees the whole process needs to be streamlined,” said Don Ragona of the Native American Rights Fund. “It’s an outrageously long wait.”

Get the Story:

Eagle bodies, parts for Indian rites are collected, sent from Colo. morgue (The Denver Post 9/1)

Supreme Court Denies Cert in Winslow Friday and Mercury Cases

Here is the order. The Friday listing is on page 7. And the mercury case (Utility Air Regulatory v. New Jersey) is on page 4.

Friday v. U.S. Cert Petition — Not a “Petition to Watch” — Commentary

Tomorrow the Supreme Court likely will deny cert in the Friday v. United States petition. SCOTUSblog does not pick it as a “petition to watch”, which means something. There was a moment when the Supreme Court might have heard this case (and maybe not in a good way, since the United States would be the petitioner then), but the Tenth Circuit joined the Ninth Circuit in upholding the constitutionality of the Bald Eagle Protection Act.

The ironic, even ridiculous, result of these cases is that it is easier for non-Indians to take advantage of the American Indian religious exemptions than it is for Indians. Yesterday, Indianz reported on one such case favoring non-Indians. Here is the argument:

Samuel Wilgus Jr and Raymond Hardman were convicted of possessing feathers without a federal permit. But since they are not enrolled in a federally recognized tribe, they wouldn’t have been able to obtain one. The scheme violates the Religious Freedom Restoration Act, Judge Dee Benson ruled. The men say they are practitioners of Native American religions.  (emphasis added) [Here is the opinion — Wilgus Order]

So, what this means is that the very existence of a regulatory/statutory mechanism for Indians to acquire eagle parts under the Protection Act through the National Eagle Repository — a mechanism that is incontrovertibly useless, a fact that Indian people could conceivably prove (but apparently not a “constitutional fact”) — means that the statute does not violate the Religious Freedom Restoration Act. But for non-Indians, who can never take advantage of the Repository (and, perhaps, Indian religions), it is a constitutional violation.

I’ve convinced myself. It is ridiculous.

US v. Friday — Constitutional Challenge to National Eagle Repository Rejected

Here is the Tenth Circuit’s decision in United States v. Friday — us-v-friday-ca10 (thanks to Sarah Krakoff for the heads-up).

Judge McConnell wrote the decision. Here is our previous commentary on the case (here). Guess no circuit split….

Ninth Circuit Affirms Constitutionality of Bald Eagle Protection Act

In consolidated cases, the Ninth Circuit affirmed the constitutionality of prosecuting American Indians under the Bald and Golden Eagles Protection Act, rejecting a challenge under the Religious Freedom Restoration Act. A similar case is under review by the Tenth Circuit (United States v. Friday).

The Ninth Circuit applied a 2003 precedent, United States v. Antoine, upholding the law under similar facts. Here are the materials.



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Eagle Repository Case: United States v. Friday (CA10) — Update!

Oral argument in this very interesting case is set for December 17, 2007 in Denver. The panel consists of Ebel, Kelly, and McConnell.

Our previous post with initial briefs and the lower court opinion is here. Friday retained counsel and that attorney was given leave by the Court to file a supplemental brief (see below the fold).

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