Supreme Court Denies Certiorari in Friday Case, Remands to District Court

On February 23rd, the United States Supreme Court denied review of the Tenth Circuit's May 2008 decision in United States v. Winslow Friday, a case involving an Arapaho man's challenge to the Interior Department's application of the various federal laws requiring accommodation of Indian religious and traditional uses of eagle feathers.

Winslow Friday, who shot and killed a bald eagle for use in a Sun Dance ceremony without a federal permit, will now face criminal prosecution in federal court in Wyoming and a possible one-year prison sentence and $100,000 fine.

The Supreme Court did not issue any written opinion explaining its decision not to hear the case, which began in federal district court in Wyoming with criminal charges in 2005 against Friday for the unlawful taking of an eagle on the Wind River Reservation.  In 2006, U.S. District Court Judge William Downes, however, granted Friday's pre-trial motion to dismiss because the evidence was overwhelming that the U.S. Fish and Wildlife Service, an agency in the U.S. Department of the Interior, was not acting in accordance with federal laws (notably the Religious Freedom Restoration Act and the Bald and Golden Eagle Protection Act as well as the administrative regulations promulgated pursuant to the Eagle Protection Act).

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."

In his petition for certiorari on behalf of Friday, federal public defender John Carlson also made the argument that the Tenth Circuit incorrectly applied the "constitutional facts" doctrine, which allows an appellate court to review the finding of facts by a lower court on a de novo basis (that is, without deference to the lower court's findings) when a constitutional issue is being litigated.  Despite a large circuit split amongst the federal courts of appeals on this particular issue, and despite Friday's motion to dismiss being supported by statutory law and not the First Amendment, the Supreme Court did not grant review of the Tenth Circuit's legal reasoning supporting its reversal of Judge Downe's decision.

Under federal constitutional law, the Supreme Court has the authority to grant review of cases decided by lower courts by issuing a writ of "certiorari" (a Latin term meaning "to make certain" that is used to describe the Court's discretionary appellate review) upon a petition from a party whose interests were adversely affected by a lower court, so long as a matter of federal law is at issue.  Four of the nine Supreme Court justices must vote for review (the "rule of four") but in recent years only about 100 of 7,000 or more cases submitted for review are actually heard by the Court.

Friday can now only hope that either the charge is dismissed by the U.S. Attorney's Office in Wyoming, a favorable plea bargain offer is made by the prosecution, that the jury nullifies the charge based on his religious justification, or at a last resort that President Obama grants an immediate pardon if he is convicted.