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Federal appeals court hears bald eagle case

DENVER - Balancing the government's method of safeguarding eagle populations with the rights of American Indians to use eagles for religious purposes occupied a federal court in Denver Dec. 17.

The issue was brought before a three-judge panel in the 10th U.S. Circuit Court of Appeals as federal prosecutors sought to overturn the acquittal of Winslow Friday, a 23-year-old Northern Arapaho man from the Wind River Reservation in Wyoming who acknowledged shooting a bald eagle in 2005 for use in a Sun Dance.

Friday was acquitted of violation of the federal Bald and Golden Eagle Protection Act in federal court in Wyoming, but the U.S. Department of Justice sought to reinstate the charges against him. A conviction against an individual can carry a maximum penalty of a $100,000 fine and one year in prison.

The appellate judges heard arguments as to why the charges should not be reinstated and also heard clarification on issues raised in the lower courts. The court could reinstate the charges, deny reinstatement, uphold a lower court finding that the U.S. Fish and Wildlife Service's administration of eagle permitting is flawed, rule on the existence of the FWS permit system itself, or rule otherwise.

A ruling is not expected in the immediate future.

At odds are the FWS' methods of protecting eagle populations and the rights of Native people to freely use eagles and eagle parts in religious ceremonies such as the Sun Dance under protections of the Religious Freedom Restoration Act and the U.S. Constitution.

In Denver, Friday said he did not apply for an eagle permit from the FWS because the Northern Arapaho Sun Dance required an eagle from the wild, and he did not know a so-called ''take permit'' was available that would have made it lawful for him to take the eagle as he did.

The FWS permits commonly known in the Indian community are not take permits, but permits to possess eagle carcasses or feathers from the National Eagle Repository. Application for these permits involves a waiting period of from two to nearly five years for immature birds, depending on whether they are bald or golden eagles.

Even if Friday had applied for a take permit, apparently it would not have been granted, according to a FWS spokesman who said Dec. 17 that take permits are granted at the national level and not available to individuals.

That position is disputed by Friday's defense attorney, who points to statutes that he says allow individuals' taking of eagles. The attorney, assistant federal public defender John T. Carlson, said he believes the government misleads people by telling them they cannot apply for take permits and by not informing FWS employees themselves of the law.

The appellate court heard arguments that the trust responsibility of the government toward tribal nations involves accommodating indigenous religious practices in a manner that would not preclude preserving viable eagle populations.

The government had the burden to show that the FWS permit system was the least restrictive way of meeting the competing interests, Carlson said.

Because of increased numbers, the bald eagle has been removed from protection under the Endangered Species Act, although it remains listed under other federal laws. Its removal from ESA status, taken together with the mass occurrence of eagles electrocuted yearly on non-raptorproof power lines, indicates that American Indians should not have to go through the cumbersome or little-known provisions of the FWS permit process, he said.

Kathryn Kovacs, an assistant U.S. attorney, said the system of permits is ''burdensome'' and inconvenient, making the religious use of eagles more difficult, but not ''impossible.''

During the 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 United States.

A change in permitting from a possible ruling by the court would not result in a ''flood'' of applications for take permits, he said, because although the FWS seems to hold out a ''pan-Indian religion,'' in fact there are more than 500 tribal nations, most of whose religious practices differ, and the Arapaho are one of few tribes to take eagles from the wild.

The government's position is that doing away with the permitting system could threaten the viability of the eagle species, and the courts have held that some regulation is necessary, Kovacs said.

The Northern Arapaho and Shoshone tribal nations inhabit the same reservation area and tribal code prohibits all takes, she said, noting that Friday took one of only two eagles nesting at the time on the reservation.

If the 10th Circuit Court of Appeals reinstates the charges against Friday, the matter could be taken to the U.S. Supreme Court. Depending on the court's ruling, if any, concerning the permit process itself, the National Eagle Repository could be affected.

In addition to obtaining eagle carcasses or feathers from the repository, American Indians can obtain eagle feathers from each other and from tribal aviaries, and in some instances can take eagles on reservation lands when treaties permit that, a spokesman for the repository said.

The FWS operates the National Eagle Repository at the Rocky Mountain Arsenal National Wildlife Refuge in northeast Denver as part of an eagle preservation program begun in the 1970s.

The waiting period for applicants for eagles from the repository varies according to whether they are adult or young birds and bald or golden eagles.

Many applications are for immature golden eagles, whose white, black-tipped tail feathers are prized, and for immature bald eagles, whose tail feathers are speckled and mottled. The wait time for the former is now from four to four and a half years, while for the latter it is from two to two and a half years.

Eagle carcasses are generally obtained by the repository from state and federal wildlife employees after the birds have been electrocuted on power lines or have been killed by poisoning, vehicle collisions, unlawful shooting and trapping, disease or other causes.

According to the FWS, at present only enrolled members of federally recognized tribes can obtain permits authorizing them to receive and possess eagle feathers from the repository for religious purposes.