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Non-Native eagle feather issues return to court

DENVER – Eagle-feather possession laws unnecessarily restrict non-Natives’ legal application for feathers, even though federal eagle policy itself has shortcomings and a black market in eagle feathers feeds on the “opportunistic greed of American society,”according to a brief filed Oct. 27 in the 10th Circuit Court of Appeals.

The argument disputes the government’s support of present laws designed to preserve eagles, protect tribal practices, and shield religion from undue government interference. It cites eagle feather use at high school graduations and at powwows as non-religious.

“An eagle fan has over 137 feathers and an average adult eagle has over 3,000 feathers,” according to court testimony concerning the scarcity of feathers, noting that prayer ceremonies could be conducted with a single feather.

Samuel Ray Wilgus Jr., a non-Native Utah resident, was charged with illegal possession of eagle feathers in 2002 under the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act, or “Eagle Act.”

He appealed to the 10th Circuit, which sent his case back to the lower court in Utah, requiring the government to demonstrate that its eagle feather policies were the least restrictive way under the Religious Freedom Restoration Act of protecting eagles and fulfilling obligations to Indian tribes.

The lower court judge’s subsequent findings, if upheld and implemented, would allow non-Natives to apply for eagle feathers from the National Eagle Repository without fear of prosecution as “adherents to the very same religion” as Native practitioners.

But the government’s argument, contested in the current brief, remains that the Eagle Act is the least restrictive means of achieving the government’s need to preserve the eagle population and protect tribal culture given that eagles are a limited resource that would be threatened further by an increase in demand for feathers by non-tribal members.

In addition to noting that prayer ceremonies could be conducted with a single feather, Wilgus disagreed that “the government’s methods of excluding him from legally applying for feathers is the least restrictive means of “furthering those interests especially in light of the Indian tribes exception.”

Wilgus does not argue that the government has no compelling interest in eagle preservation or treaty obligations with federally recognized tribes, but “the government could do a better job of educating the public about the existence (of the National Eagle) Repository and what to do in the event that feathers/carcasses are found,” the brief states.

The government could also offer an eagle feather/parts amnesty program to “help increase availability without fear of prosecution” and increase scrutiny of eagle feather practices of Native people.

“Who knows how many federally recognized tribal members actually practice tribal religions,” Wilgus’ argument states. “Yet all are able to apply for and receive feathers. This could be another potential area of improvement through better enforcement.”

The bald eagle has been removed from the Endangered Species Act list, which “makes it more difficult to show that measures impinging on religious practices are justified – at least in part – as essential to the protection of eagles are the least restrictive means of achieving the goal of protecting eagles,” the court record notes.

Further, the government “has also allowed the distribution of eagle feathers to high school graduates of federally recognized tribes. Thus, the government has allowed distribution of feathers for non-religious purposes,” it states in part.

Wilgus “received religious training (his blood brother was a spiritual leader of the Southern Paiute Tribe), he was adopted into a Paiute family and should be entitled to the same religious privileges as a result,” according to the brief.

He had been gifted with eagle feathers by an individual and several groups, but he was charged with illegal possession after a traffic stop revealed feathers in the truck in which he was riding.

“The root of evil appears not to be Samuel Wilgus, whose beliefs are pure, but in the inherent nature of capitalism which by its very nature corrupts,” the brief states. “Capitalism has corrupted apparently for the most part, legal possessors of feathers, who sell them on the black market and thus have capitalized on the opportunistic greed of American society who is reduced (to) the seduction of paying for a piece of history and a story to tell.”

“The government notes that the black market is driven by powwow dance contests, which are not religious ceremonies,” it states, contending that federal authorities “should focus enforcement efforts in these arenas, particularly when a costume may include ‘feathers from as many as 10 to 12 eagles.’”

The brief noted that many tribal members do not receive feathers from the repository, maintained by the Fish and Wildlife Service near Denver, and the “fact that there is Indian tribes exception for the transfer of feathers to non-federally recognized tribal members” contradicts the government’s apparent position.

Wilgus was selectively singled out for prosecution, the brief states, because the government allowed a similar conviction to be overturned without appeal.

The lower court determined that “This (ban on non-Indians’ eagle feather possession) presents a problem for those non-Native Americans who have adopted the religious beliefs and practices of Native Americans but who cannot legally possess the eagle feathers that play a significant role in many Native American religions.”

Wilgus “not only deserves to have his conviction overturned but requests an affirmative declaration by this (10th Circuit) Court that he can apply and legally possess the implements to practice his religious beliefs,” the current brief concludes. Oral arguments are expected to address the questions raised on appeal.