Lawrence Hurley, E&E reporter
Tackling a complicated legal issue, a federal appeals court confirmed yesterday that only American Indians can own eagle feathers for religious purposes.
Eagles are protected under the Bald and Golden Eagle Protection Act, which bans the possession of feathers and other eagle parts but includes an exception for Indian tribes.
In 1998, Samuel Wilgus was arrested in Utah for possessing 141 feathers, but he claimed in defense that, as a long-term follower of an American Indian faith, he was practicing his religion and therefore shouldn't be prosecuted.
Wilgus, who is not a member of a tribe or an American Indian by birth, pled guilty to two misdemeanor violations of the eagle act and agreed to a $50 fine, on the condition that he could appeal on the religous issue.
Although born a Baptist, Wilgus lived with members of the Southern Paiute Nation in Utah and became a blood brother to a member of the tribe. During that period, he became interested in the tribe's religious customs and was given some eagle feathers.
Upon his arrest, Wilgus initially claimed he was an adopted member of the tribe, but tribal authorities said that under Paiute law, non-American Indians could not be adopted.
In yesterday's ruling, the Denver-based 10th U.S. Circuit Court of Appeals held that Wilgus could not prevail under the Religious Freedom Restoration Act, which puts limits on the ability of the federal government to restrict religious freedom.
It was the second time the court had tackled Wilgus' case. In 2001, the court held that the government had a compelling interest in protecting both eagles and American Indian religious practices but remanded the case back to the district court for further proceedings.
U.S. District Judge Dee Benson of the District of Utah subsequently ruled that, under RFRA, the way the exception for American Indians is enforced was not "the least restrictive means" for the government to advance its interest in protecting eagles.
Benson found fault with the process by which eagle parts are made available.
American Indians can access the parts via the National Eagle Repository, based in Commerce City, Colo. The parts are provided by the U.S. Fish and Wildlife Service when agents or members of the public recover eagle carcasses.
Tribe members are required to apply for a permit in order to obtain feathers or other eagle parts.
Benson ruled that the government had failed to show that limiting applications to members of tribes was the most restrictive means of enforcing the eagle protection statute.
A unanimous three-judge panel of the appeals court disagreed.
Senior Judge David Ebel noted in yesterday's opinion that the alternatives to restricting eagle parts to tribe members -- such as making them available to anyone who practices an American Indian religion -- created new problems.
Requests for feathers already outstrip supply, he noted, so if non-tribe members could apply, American Indians would be negatively affected.
Ebel pointed to evidence that the increased population of eagles in recent years does not necessarily mean there will be more eagle parts sent to the repository.
Furthermore, such a process would make life difficult for an FWS agent, who would be "cast in the role of 'religion cop' and would be forced to decide whether the suspect is being truthful about his religious beliefs or is in fact a black marketeer using Native American religion as a smokescreen," Ebel wrote.
The court also rejected Wilgus' suggestion that there be an exception for those who receive feathers as gifts by American Indians.
The Justice Department declined to comment on the ruling, and Wilgus' attorney could not be reached.
Click here to read the ruling.
