Eagle feather issue moves one step closer to resolution

Carol Berry, Today correspondent

DENVER – The eagle has landed – figuratively, at least – in a federal appeals court again, where attorneys argued legal issues Nov. 19 about the bird, its feathers, and their rightful possession.

It is part of litigation that could end long-standing Indians-only eagle feather mandates.

The case before the 10th U.S. Circuit Court of Appeals concerns a non-Indian Utahn who insisted on his right to possess eagle feathers for Native religious practices.

The points were argued before a three-judge panel, as attorneys for the government and for Samuel Ray Wilgus Jr. squared off over the government’s dual mandate to protect eagle populations and Native culture and religion in a way that least interferes with practitioners’ rights under the Religious Freedom Restoration Act.

In sometimes pointed questioning during oral argument, the judges accused the government of not making an adequate effort to show what a least restrictive method might be of allowing the use of feathers in Native religious practices while also protecting the birds’ survival.

“All you have shown is that it’s hard,” one of the justices said about the government’s fact-finding.

The government countered with 380 pages of documentation that addressed “everything the court suggested” and noted that its position restricting eagle feathers to federally recognized tribes stemmed from constitutional mandates and trust responsibilities.

The government charged Wilgus with illegal possession of 141 eagle feathers in 2002 in violation of the Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act, or “Eagle Act,” but on appeal justices cited a possible conflict with his rights under RFRA.

As a result, the matter went back to the lower court, with instructions to the government to get more information on eagle populations and on permitting practices. The Utah court subsequently said the government failed to show that its eagle policies were the least restrictive to Wilgus’ religious practice under RFRA, the finding the government currently disputes.

As the issue has gone back and forth between the appellate and lower courts, the Utah District Court judge indicated the government might try allowing non-Native religious adherents to apply to the National Eagle Repository to possess eagle feathers in order to widen religious freedom while possibly not harming eagle populations.

Wilgus suggested that Indians should be able to give feathers to non-Indians, or that tribal religious leaders could allow non-Natives to have the feathers for religious practices.

The Department of Justice said those involved in the litigation agree that eagles are scarce. They also agree that applications for feathers and parts exceed supply at the repository near Denver where dead eagles are kept and their feathers or parts distributed in response to increasing numbers of federally recognized tribal members who use them for religious purposes.

The Eagle Act prohibits the possession of eagle feathers and parts by those other than enrolled members of federally recognized tribes who use them for religious purposes. RFRA prohibits the government from hindering religious practices unless the interference is to meet unaddressed, compelling government needs in the least restrictive way available.

In addition, “Native Americans cannot give eagle feathers or parts to non-Native Americans as gifts,” states the Fish and Wildlife Service online.

Wilgus’ attorney said the Southern Paiute Tribe does not recognize Wilgus as a member, but he was adopted by a Southern Paiute family in the “old way.” Traditionally, because of criteria including guidance and experience, the people who taught Wilgus would be termed “chiefs” and in the Native American Church he has been recognized by the peyote chiefs as an equal, he said.

Wilgus said he took a DNA test with results that showed he had nine percent Native ancestry, but earlier he had said he could not establish Native American ancestry and the Southern Paiute Tribe did not recognize adoptions of non-Natives, it was noted.

His adopted mother, who was Southern Paiute, gave him an eagle feather, Wilgus said.

“Should it make a difference under RFRA if he is Native American at all?”one judge queried. “Aren’t we talking about RFRA?

“Should it make any difference if Wilgus is a full-blood Indian or 100 percent Irish?” he said, noting Wilgus could “just be put in line (at the repository) like everyone else.”

Wilgus would be in a “very narrow class” of those exempted from existing eagle possession rules because of his adoption and his religious stature, his attorney said.

His kind of exemption would not necessarily increase black market activity, because “The government notes that the black market is driven by powwow dance contests, which are not religious ceremonies,” his brief states. “The government should focus enforcement efforts in these arenas, particularly when a costume may include feathers from as many as 10 to 12 eagles. Samuel Wilgus is not seeking to possess eagle feathers for any reason but to practice his religious beliefs.”

Excluded from the restrictions on possession are feathers and parts of bald eagles legally obtained before the Bald Eagle Protection Act of 1940 and of golden eagles before the law was amended in 1962 to include them under what is now termed the Eagle Act, according to the FWS. It has been illegal to barter or sell eagle parts for nearly a century.

The circuit court will consider the attorneys’ arguments Nov. 19 before they issue a ruling at an unspecified future time.

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