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Supreme Court refusal in eagle case may criminalize religious practices

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DENVER – The U.S. Supreme Court declined to review the case of a Northern Arapaho man who shot an eagle for use in his tribe’s Sun Dance, and a Colorado attorney long familiar with indigenous religious and sacred sites issues said it is “very frustrating for Indian country to be labeled as criminals for practicing their religions and ceremonies.”

Winslow Friday, from the Wind River Reservation in Wyoming, acknowledged shooting the bald eagle in 2005 for tribal religious use, which required an eagle taken from the wild.

Although a district court judge dismissed charges of violating eagle protection laws, the 10th Circuit Court in Denver reinstated the charges against Friday, contending that the government’s compelling need to preserve the bald eagle population outweighed hindrances to Friday’s religious rights and practices. After the 10th Circuit refused Friday a hearing before its full panel of judges, the case was taken to the high court.

“There is a more honorable approach to all of this – the United States working with tribes to come up with a better solution – not to criminalize what is traditional religious conduct,” said Steve Moore, a senior staff attorney with the Native American Rights Fund, in Boulder, Colo., who was asked to comment on the overall issues raised by the case.

The Supreme Court was asked to hear Friday’s appeal concerning whether there should be independent judicial review of facts previously presented in lower courts. The high court’s refusal Feb. 23 to allow the appeal followed an analysis by the solicitor general, who proposed that the 10th Circuit did not err in its independent review of Friday’s case after a lower trial court had ruled in Friday’s favor.

Friday initially appealed under the Religious Freedom Restoration Act, contending that federal eagle-protection laws and policies placed an undue burden on his religious practice, but the federal appellate court found that existing mandates were the least restrictive way to protect eagle populations and that they provided for an imperfect, but possible, way to obtain eagle parts.

At present, eagle carcasses or parts are obtained by enrolled members of federally recognized tribes from the National Eagle Repository near Denver, usually after a lengthy wait. Although “fatal-take” permits issued at the Fish and Wildlife Service’s national level are theoretically available to Native individuals, Friday said he was unaware of the practice and there is some question as to whether any significant numbers of such permits have been issued to individuals, as opposed to tribes.

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“Why not put tribes in a co-management relationship with the Fish and Wildlife Service for monitoring the permitting of eagles or coming up with arguments as far as obtaining carcasses and parts and the distributing of those cultural materials,” Moore said. “It is a well-known fact that it takes several years to get a complete eagle carcass and then that carcass is often in a state of decomposition such that much or all of it cannot be used for the purposes for which it was sought in the first place.”

Many applications to the repository are for immature golden eagles, whose white, black-tipped tail feathers are highly prized, and for immature bald eagles, whose tail feathers are mottled. The wait time for feathers can range from two to five years, according to repository officials, and thousands are on the waiting list.

Traditional issues as well as U.S. laws came into play as Friday’s case wended its way through the courts.

During a hearing in 2007 in 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. A federal attorney said Friday took one of only two bald eagles nesting at the time on the joint Northern Arapaho/Shoshone reservation area. A tribal leader asserted that the Northern Arapaho Sun Dance would continue unchanged despite the courts’ rulings.

The bald eagle has been de-listed under the Endangered Species Act because of its increased numbers nationwide, but it remains shielded by the Bald and Golden Eagle Protection Act.

Since the Supreme Court has declined to review his case, Friday could receive a sentence of up to a year in jail and fines on the reinstated charges.

Neither Friday nor his attorney, John Carlson, an assistant federal public defender in Denver, was immediately available for comment.