Here is the opinion.
Here is the NYTs article describing the opinion.
NCAI and Huy filed briefs in this matter, here.
Of note, perhaps, Justice Sotomayor authored a separate concurring opinion quoting from two lower court decisions involving Indian or Indian-related claims, Yellowbear and Wilgus.
Here is the article, a description of the inside of the National Eagle Repository.
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.”
Here is the article.
Here is today’s decision in United States v. Wilgus.
The conclusion:
We are sensitive to the sincerity of Wilgus’ religious beliefs, and we do not question either the authenticity or the weight of his religious experience among Native Americans. We recognize that this litigation has now been pending for more than a decade, and that both sides have put forward many meritorious arguments and reams of evidence. The district court performed yeoman’s service in sorting through that evidence in an attempt to determine whether the Eagle Act permitting requirements are the least restrictive means of forwarding the government’s dual compelling interests. The district court concluded in the negative, and we respect the work that went into it, but we cannot agree. We are convinced that, in light of the options before the federal government, the regulations at issue are the least restrictive means available to advance its compelling interests. We therefore REVERSE the conclusion of the district court to the contrary and hold that Wilgus’ conviction did not violate RFRA.
The Tenth Circuit briefing in United States v. Wilgus is complete:
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.
Here is the government’s opening brief in U.S. v. Wilgus (CA10) — US Opening Brief in Wilgus
Wilgus, you may recall, is a non-Indian who took eagle parts in violation of the Eagle Act, but avoided conviction by arguing under the Religious Freedom Restoration Act any application of the Eagle Act to him, as a non-Indian, would destroy his right to practice a “Native American” religion (lower court opinion is here). As we noted then, Indians like Winslow Friday get prosecuted because the Eagle Act theoretically allows them to use eagle parts, but non-Indians are immune because they can’t. Huh?
We’ll be watching to see how this plays out.
Turtle Talk 