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Appeals court reinstates charges in bald eagle case

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Winslow Friday, recently acquitted, now returns for prosecution

DENVER - A Northern Arapaho man who shot a bald eagle for use in his tribe;s Sun Dance failed to convince an appellate court May 8 that he is protected from prosecution by the Religious Freedom Restoration Act.

Winslow Friday, from the Wind River Reservation, had been acquitted in Wyoming federal court of violating the Bald and Golden Eagle Protection Act, but the current decision of the 10th U.S. Circuit Court of Appeals reinstates the charges and returns the case to the lower court for prosecution.

Friday, backed by the Northern Arapaho Tribe, clashed with the U.S. Department of Justice over whether procedures for eagle preservation - termed a ''compelling interest'' of government - could safely be modified to accommodate religious practices.

The appellate court agreed that the pursuit of eagle permits for religious use ''may be more burdensome than the Northern Arapaho would prefer,'' but concluded that under RFRA, ''the Eagle Act and its regulations are the least restrictive means of pursuing the government's compelling interest in preserving the bald eagle.''

Friday said in a telephone interview that he is ''very disappointed'' over the ruling. He did not elaborate.

Assistant federal public defender John T. Carlson, Friday's defense attorney, said options for further legal action include appeals to the full 12-judge panel of the 10th Circuit Court or to the U.S. Supreme Court, but he has not decided how to proceed at this time.

The appellate court in its ruling could as well have said Friday should have studied the Code of Federal Regulations (in trying to navigate the eagle permit/exemption process), Carlson said, adding that ''to hold him to this standard that makes sense to legally educated judges and lawyers seems largely unfair.''

Kathryn Kovacs, an assistant U.S. attorney who sought reinstatement of the charge against Friday, could not immediately be reached for comment.

Friday said he did not apply in 2005 for an eagle carcass from the National Eagle Repository in Colorado because his tribe's Sun Dance required an eagle from the wild, and he did not know a so-called ''take permit'' was available that might have made it lawful for him to take the eagle as he did.

Eagle carcasses obtained through the repository may be decomposed or available only after a lengthy wait, according to testimony before the appellate court. Problems also were cited with take permits, described by a U.S. Fish and Wildlife employee as granted at the national level and not generally available to individuals.

''It is important to the tribe that the offered eagle be 'pure,''' the court noted in background statements. ''This means that the tail may not be reused, and a new eagle must be sacrificed every year. It also means that the eagle must be taken with care. It cannot have died through poison, disease or electrocution, and it cannot be road kill.''

Tribal members differed over the appropriate way to take eagles for the Sun Dance, the court said.

''Nelson White Eagle, the keeper of the sacred pipe of the Northern Arapaho, testified that it was traditional to hide in a small hole on a mountain, and then trap eagles in a coyote hide as they came by. He said that while he personally would not use in the Sun Dance an eagle that had been shot, as Mr. Friday's was, he could not speak for others of the tribe,'' the court said.

''William C'Hair, a member of the Northern Arapaho Language and Culture Commission, testified that it is traditional to feed the eagle until it cannot fly and then flip it over with a pole; if the eagle grips the pole tightly, its claws will get stuck and immobilize it.

''Harvey Spoonhunter testified that 'in today's world ... it is acceptable' to shoot eagles for the Sun Dance,'' the court noted.

''Although the eagle used in the Sun Dance is typically a golden eagle, Mr. Friday's was a bald eagle,'' the court said. ''Mr. [Burton] Hutchinson testified that he had 'never seen where they used a bald eagle at a Sun Dance.' ... Mr. C'Hair, however, testified that a bald eagle is used to represent old age, because the eagle's white feathers symbolized white hair.''

Even though Friday did not use the eagle permit system, ''we are not oblivious to the possibility that the government's permit process for the religious taking of eagles may be more accommodating on paper than it is in practice. If so - if the process is improperly restrictive, burdensome, unresponsive or slow - we trust that members of the tribe will not hesitate to vindicate their rights either through petition or in a proper suit,'' the judges said.

The court deflected basic challenges to the eagle permit process as a violation of RFRA and to the need for a permit process at all, noting, ''If eagles were not protected or if there were no effective means of distinguishing between religious and nonreligious takings of eagles, it presumably would be more difficult for sponsors of ceremonials to obtain eagles for their sacred purposes.''

During an earlier hearing in the appellate court, a Northern Arapaho tribal attorney said Friday would not have been convicted under traditional tribal law, which - unlike Eurocentric law - may be unwritten and which predates the existence of the U.S.

Friday is charged with a misdemeanor violation that will not be heard until after his case is placed on the calendar in federal district court in Wyoming, a process that will take at least two weeks.