By Jay Harris
CrowNews.Net
In March 2005, a 22-year-old oil field worker named Winslow Friday, Jr., a Northern Arapaho tribal
member from Wyoming's Wind River Reservation, was preparing to participate in the Sun Dance ceremony that July and needed an eagle plume, feathers, and a wing.
Problem was, Friday had none of these items and knew of no other way to get them except by killing one of the eagles on the Reservation. Friday also knew that it was against the law to kill eagles, but he took a rifle and shot and killed a bald eagle anyway.
Friday felt justified because he was on his reservation and was going to use the eagle for ceremonial purposes. Friday’s uncle, a tribal fish and wildlife officer, disagreed and reported Friday to federal officials. Soon after, Friday was charged in federal court with violating the Eagle Protection Act.
Facing a possible punishment of one year in jail and a $100,000 fine, Friday’s public defender argued that Friday didn’t know about the federal laws and regulations which allow for tribal members to receive permits to take eagles or possess eagle parts. Friday’s counsel continued that the government is secretive with regards to the permit system and that the process is inefficient and unduly restrictive of religious freedom.
Interestingly, U.S. District Court Judge William Downes agreed and in Oct. 2006 he dismissed the criminal charges against Friday. The U.S. Attorney’s Office in Wyoming appealed Judge Downes’s decision and the Tenth Circuit Court of Appeals in Denver heard oral argument Dec. 17, 2007 from both Friday’s counsel and federal prosecutors from the U.S. Department of Justice.
Indeed, there are two sides to this case and a decision from the appellate court is expected sometime this year.
Though the Crow Tribe resides in the Ninth Circuit and is not bound by the upcoming decision, there is much reason for us to pay close attention to the outcome in this case. Eagles are an invaluable part of Crow culture and eagle parts (whether feather, bones, or otherwise) have an important place in virtually every significant ceremony and religious practice. And just as beef will never replace the symbolic and real importance of buffalo in our traditions and modern culture, imitation eagle feathers and other parts will never replace the symbolic and real importance of actual eagles.
Bald eagles are America’s national symbol and can be found on everything from our Great Seal of the United States to our currency. In addition, eagles (particularly bald eagles) represent an incredible success story to the entire nation. Once on the brink of extinction, bald eagles have rebounded from illegal killing and habitat degradations so successfully that in 1995 the bald eagle was removed from classification as “endangered” and was upgraded to “threatened”.
In 2007, the bald eagle was removed entirely from the Endangered Species Act protection but continues to be protected under the Eagle Protection Act – remaining something of a rarity in itself as a federal statute that specifically regulates the taking of individual species. Even in Montana, however, the sight of a bald eagle is cause to take notice.
For all of these reasons, a case involving Indians, Indian religion, and eagles is also very much cause to take notice.
What is perhaps most significant about the Friday case, legally, is that it involves a claim to the taking and use of a bald eagle for solely religious purposes. Past cases arising in the Ninth Circuit (including one involving Crow Tribal members in the late 1990’s) have not dealt solely with a religious exercise claim since nearly all cases involved the sale of eagle parts, which makes questionable the claim of non-commercial religious exercise since Congress has much broader authority to regulate commerce than religion.
Since the killing occurred on a reservation, some might wonder about the possibility of treaty rights to hunt eagles on a reservation? Simply put, that argument will not fly.
In 1858, Yankton Sioux leaders signed a treaty with the United States which reserved about 400,000 acres as their new homeland with tribal rights to the undisturbed and exclusive use of the reservation. Nothing in the treaty conditioned the hunting of the Yankton on their reservation and the general judicial rule is that omissions or ambiguities in treaties are viewed in a light most favorable to Indians. So, a century and a quarter later, in exercise of the presumed right to hunt all animals on the Yankton reservation a tribal member named Dwight Dion shot and killed four bald eagles. Dion was charged and convicted in federal court with violating both the Endangered Species Act and the Eagle Protection Act. His conviction was reversed by the Eighth Circuit. On certiorari, however, the Supreme Court held, in United States v. Dion (1986), that Congressional legislation (namely the Bald Eagle Protection Act) subsequent to the treaty which sought to protect bald eagles and which recognizes and reserves tribal member exemptions under a permit system effectively stripped Dion's treaty right to hunt eagles in an unregulated manner.
No treaty right, therefore, can be argued by Friday or anyone else today who might be interested in taking an eagle for any purpose without a permit.
According to the Bald Eagle Protection Act : “Whenever, after investigation, the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof for…the religious purposes of Indian tribes…he may authorize the taking of such eagles pursuant to regulations which he is hereby authorized to prescribe…”.
The Interior Department has promulgated regulations pursuant to this statute allowing for the permit system which makes (hypothetically at least) eagle feathers available to tribal members. But as Judge Downes said in his October 2006 bench opinion dismissing charges against Friday: "Although the government professes respect and accommodation of the religious practices of Native Americans, its actions show callous indifference to such practices … It is clear to this court that the government has no intention of accommodating the religious beliefs of Native Americans except on its own terms and in its own good time."
So if the permit system is relatively unknown and the government only begrudgingly issues permits and dispenses dead eagle parts, might Judge Downes be right in dismissing Friday’s charges on the basis of a failure on the part of the federal government to accommodate Indian ceremonies and religion?
Today, there are approximately 2,000 “whole eagle requests” submitted to the National Eagle Repository in Denver and twice that number pending. Friday’s attorneys have argued that 5,000 Indians are on the waiting list to get eagle parts and the wait time is over three years. The Justice Department, meanwhile, is arguing that there is a compelling governmental interest in conserving living eagles since the U.S. Fish and Wildlife Service estimates that there are less than 10,000 breeding pairs in the lower 48 states and it is clear that tens of thousands of American Indians use or would use eagle parts for ceremonial or cultural purposes.
In other words, there is a great demand from Indians for eagles and it is unlikely to lessen anytime soon. So how exactly does the need of the government to balance conservation and accommodation proceed?
For starters, we can look at what the government cannot do.
The First Amendment says that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” As the U.S. Supreme Court has continuously held, the Free Exercise Clause means first and foremost that all Americans (including American Indians) have a right to believe or not believe in any religion and neither the federal government nor the states can infringe upon the right to believe or not believe and to profess belief or unbelief in a particular religion or religion in general.
The Supreme Court has drawn a line when it comes to the government’s ability to regulate the actual exercise of religion through the enforcement of laws which apply generally and that are not specifically targeted at a particular religion, even if the generally applicable law has the effect of burdening an important aspect of a particular religion. In 1990, the Supreme Court held in Employment Division, Department of Human Resources of Oregon v. Smith that a state could prevent peyote use by practitioners of the Native American Church. The Court majority reasoned that to allow one religion an exception to a generally-applicable prohibition would, in effect, create anarchy since everyone might claim a religious exemption from any attempt by government at prohibiting, regulating, or compelling certain types of conduct.
With regards to what the government is required to do, we must give the Congress some credit for taking the initiative in attempting to provide for more religious freedom than the Supreme Court was prepared to recognize. In response to the Smith case, Congress passed the Religious Freedom Restoration Act of 1993 (RFRA), which sought to statutorily provide a more rigorous judicial review of all governmental actions which have the effect of burdening religious practices. However, in 1997 the Court struck down RFRA as it would apply to the states, ruling that no Constitutional authority exists by which Congress can apply judicial reviewability standards to state governmental action.
However, under RFRA’s strict scrutiny standard of review the federal government today must show a “compelling interest” in regulating religious freedom and must also show that the action taken is the “least restrictive” means of furthering that compelling interest. It remains unclear as a matter of law whether RFRA may be justified as a general prohibition against infringing upon tribal religious freedom under Congressional plenary authority concerning Indian affairs as an affirmative measure used to protect tribal integrity.
With Indian religion in particular, for thirty years there has been a federal law – the American Indians Religious Freedom Act – by which the federal government has been instructed by Congress that Indian religion is important and concerns must be recognized. The language seems very straightforward: “[It is] the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian…including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” See American Indian Religious Freedom Act of 1978, Title 42 U.S.C. § 1996.
However, as the Supreme Court has recognized, this law does not create any substantive rights for Indians but is, rather, an articulation of federal policy. So when it comes to modern Indians, is our freedom to practice (and not just believe) traditional religion itself something that cannot be believed?
The Tenth Circuit has previously held that tribal members have a right to possess and use eagle parts in religious ceremonies under RFRA and it is now upon the Tenth Circuit to determine whether or not the federal government’s practices in applying the laws and regulations making eagle feathers available is the least restrictive measure to accommodate the interest in conserving eagles.
A factor that could play against Friday's case may be that, in addition to Justice's argument that the government does have a compelling interest and is using the least restrictive means possible to meet that interest, the argument also contends that Friday has no legal ability to challenge the effectiveness of the regulations governing the permit
system since he did not attempt to attain a permit.
It is likely the particular legal analysis the Tenth Circuit applies in the Friday case will be determinate as to whether the Supreme Court will hear an appeal on certiorari. But if Friday’s dismissal is affirmed, we can be sure the case will go to Washington, D.C. and it is anyone’s guess as to what the high court will hold but Indian supporters should not hold their breath.
If Friday’s dismissal is reversed and he goes to trial for a likely conviction in District Court, it will be a defeat for Indian religious and ceremonial practitioners but perhaps a wake-up call to the Interior Department, or better yet Congress, to make greater efforts to accommodate Indian ceremonies that rely on eagle parts.
In the meantime, we’ll wait for the Tenth Circuit to rule and for possible future developments to unfold.
The Associated Press has reported that, on the advice of tribal spiritual leaders, Winslow Friday rejected the government’s offer of a plea agreement to reduce the punishment to $5,000 and two years of probation.
The following is an excerpt from a short essay titled “An Eagle Nation” by Rhodes Scholar and Osage Indian Carter Revard which is included in a collection of Indian stories appropriately titled Native American Testimony (Penguin Books, 1999):
“There was a placard on the cage’s side that said: This bald eagle was found wounded, and although its life was saved, it will never fly again … Aunt Jewell, from her
wheelchair, spoke in Ponca to him, so quietly that I could hardly
hear…Brother, she said. The eagle opened his eyes and turned his head. She said something else. He partly opened his beak and crouched and looked head-on toward her, and made a low shrill sound … [A]nd how it has all changed and the ways are strange but the voices still are singing, the drum-heart still beating here, so whatever the placards on their iron cages may have to say, we the people, as Aunt Jewell and the Sun Dancers say, are an EAGLE NATION, now.”
What judicial outcome awaits Friday’s courageous decision should be of great interest to the Crow Tribe and all others who care about what sort of “eagle nation” we are to become.
Jay Harris, an enrolled Crow Tribal member, is a second-year law student at the University of Colorado and is the Vice-President of the CU Chapter of the Native American Law Students Association.
Photo Credit: NASA/Rothstein.
