Eagle-feather disputes to get hearing before full appeals court

By The Associated Press

08.10.01

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SALT LAKE CITY — The 10th U.S. Circuit Court of Appeals plans to hear arguments this fall on whether the federal government can block non-Indians from possessing eagle feathers.

Three separate three-judge panels issued decisions Aug. 8 on the issue. But the full court immediately set all three aside and said it would consolidate and rehear them later this year, with all eight circuit judges sitting en banc.

"These cases present a number of inter-related — although not identical — issues and the en banc court has determined for purposes of consistency that these three cases should be reheard by the entire en banc court," the order said.

The three orders that were vacated ruled that the federal government can prohibit non-Indians from possessing eagle feathers, but cannot restrict that right to Indians belonging to federally recognized tribes.

In a Utah case, a three-judge panel ruled 2-1 that a white member of the Native American Church did not suffer religious discrimination under the Bald and Golden Eagle Protection Act, which bans non-Indians from possessing eagle feathers.

The Utah ruling said the act does not prohibit religious freedom. Instead, the act makes a special accommodation for Indians in light of the government's "unique obligation to preserve Native American culture."

Samuel Ray Wilgus Jr., who said he is an adopted member of the Paiute Indian Peak Band, was charged with possessing 141 eagle feathers without a permit. The feathers were seized during a traffic stop near Fillmore in 1998.

Wilgus pleaded guilty, with a provision that he could appeal to the 10th Circuit in Denver. He was sentenced to 100 hours of community service.

In another Utah case, a different three-judge panel ruled 2-1 against Raymond S. Hardman's claim that he had a right to eagle feathers because he was a member of an Indian religion.

Hardman was given a bundle of prayer feathers, which included a golden eagle feather, by a Hopi religious leader in 1993. Hardman was told to keep them in his truck after transporting the body of his son's godfather to Arizona for religious services.

Hardman's feather was seized in 1996 after his estranged wife reported he had it, court documents said.

Hardman was charged with violating the Migratory Bird Treaty Act, was fined and appealed.

"It is not Mr. Hardman's religion ... that prevents him from complying with the permitting regulations. Rather, it is Mr. Hardman's political classification," Chief Judge Deanell Tacha wrote for the majority.

And in a New Mexico case, Joseluis Saenz, a descendant of Chiricahua Apaches, sued to recover eagle feathers seized in 1996.

The Chiricahua tribe is no longer recognized by the federal government.

Saenz argued the government's restriction allowing only members of federally recognized tribes to hold eagle feathers violated the Religious Freedom Restoration Act.

In his case, a three-judge panel said the federal government had an official policy between 1871 and 1928 to "attempt to eradicate Indian heritage of tribalism" by assimilating Indians into mainstream society. It was that policy that determined which tribes survived and which ones disappeared, said the ruling written by Judge Paul Kelly.

"Historical government policy toward the Chiricahua tribe may have made it impossible for that tribe to obtain federal recognition today, while on the other hand, the government now wants to use that same lack of recognition to infringe on Mr. Saenz's religious freedom," Kelly wrote.

Update

Full appeals court hears eagle-feather debate
10th Circuit weighs whether people who aren't members of federally recognized Indian tribes have right to use feathers in religious practices.  01.16.02

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