The possession and ceremonial use of eagle feathers will remain in the hands of Indians from federally recognized tribes under a ruling handed down March 29 by the U.S. 10th Circuit Court of Appeals, which noted the balancing act required between laws to conserve eagle populations and those protecting religious practices.
In litigation spanning a decade, the courts have attempted to weigh preserving the culture of American Indian tribes with the desire of non-Natives or those not federally enrolled to use eagle feathers and parts, triggering fears of greater pressure on the overburdened National Eagle Repository, the primary means of legally obtaining the feathers, or on a potentially burgeoning black market.
The current ruling turned on an appeal by Samuel Ray Wilgus, of Utah, who was charged by the government in 1998 with the illegal possession of 141 eagle feathers in violation of the Bald and Golden Eagle Protection Act (Eagle Act).
The District Court in Salt Lake City had cited a possible conflict with Wilgus’ rights under the Religious Freedom Restoration Act (RFRA) and, after back-and-forth litigation, said the government failed to show its eagle policies were the least restrictive to Wilgus’ religious practice under RFRA, a finding the government then appealed, leading to the current ruling.
But Wilgus’ conviction did not violate RFRA and current government regulations on the possession and distribution of eagle feathers and parts are “the least restrictive means available to advance its (government’s) interests,” a three-judge panel ruled.
Although Wilgus was “a follower of a Native American faith, (he) is not a member of a federally recognized tribe, nor is he an Indian by birth,” the court said, noting Wilgus said his religion required him to possess eagle feathers.
Wilgus earlier had said he was adopted by a Southern Paiute family in the “old way” and his attorney said that because of criteria including guidance and experience, Wilgus would be recognized in the Native American Church by the peyote chiefs as an equal.
Unmoved, the 10th Circuit noted Wilgus “previously conceded before this court, however, that Paiute tribal law does not recognize adopted non-Indian members of the tribe.’”
“I’m extremely angry,” Wilgus told ICTMN after the ruling. “I believed the Native Americans who gave me the eagle feathers, and I think the ones who gave me the eagle feathers should be the ones to decide—not the federal government.”
His attorney, Joseph F. Orifici, said he plans to take the case to the Supreme Court. “My client and I are very disappointed,” he said, adding he had not had the opportunity to read the ruling.
Indian people who are not from federally recognized tribes cannot possess the feathers, Wilgus noted, “and that’s not right.”
Wilgus said he is “fighting for everybody—not just for me to have eagle feathers. If they can do this to me and to non-federally recognized Indians, they can do it to anybody, yet we’re supposed to have religious freedom under the Constitution.”
Although bartering and selling eagle parts have been unlawful for nearly a century, it was not illegal for Indians or non-Indians to possess or gift bald eagle feathers lawfully obtained before enactment of the Bald Eagle Protection Act in 1940 and golden eagle feathers before the law’s expansion to include golden eagles in l962. Throughout, Indian people have legally gifted family members and other Natives with feathers, Fish and Wildlife Service officials have said.
The court said that eagle feather regulations did represent a substantial burden on Wilgus’ religious beliefs but that, as required under RFRA, the burden advanced a compelling government interest—the protection of eagles and preservation of American Indian culture and religion for sovereign tribal nations—in the least restrictive way, the government’s current regulatory system that involves feathers and permits obtained from the Repository near Denver.
“By allowing only members of federally-recognized tribes an essential though otherwise prohibited commodity (eagle feathers and parts), the United States ensures that those tribes are able to continue to practice their traditional culture to the greatest extent possible,” the panel ruled.
“And by limiting the permitting process to only members of those recognized tribes, the United States does its best to guarantee that those tribes, which share a unique and constitutionally-protected relationship with the federal government, will receive as much of a very scarce resource (eagle feathers and parts) as possible,” they said.
The justices said they did not “question either the authenticity or the weight of (Wilgus’) religious experience among Native Americans,” but dismissed the District Court’s preferred alternative, which would have opened the permitting process “to all sincere practitioners of Native American religion,” or another suggestion to allow tribal members to give feathers to non-members who practice Native religions.
The FWS operates the National Eagle Repository, which receives the bodies of dead eagles from around the U.S. and distributes their feathers or parts to qualified applicants, sometimes after lengthy delays. Applications far outnumber availability, particularly for feathers of the immature golden eagle for which the wait can be more than four years.
FWS officials were not available for comment after the ruling was announced March 29.