Full appeals court hears eagle-feather debate

By The Associated Press

01.16.02

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DENVER — Lawyers for three people who want to use eagle feathers in religious practices argued before an appeals court yesterday that a law limiting the use of the feathers to members of federally recognized Indian tribes is too restrictive.

The cases before the 10th U.S. Circuit Court of Appeals weigh freedom of religion against the government's right to protect bald and golden eagles. One case involves a descendent of the Chiricahua Apaches in New Mexico, a tribe no longer recognized by the federal government. The other two involve non-Indians from Utah. All say they practice American Indian religion.

"We don't deny there is a compelling state interest in protecting eagles," said Cindy Barton-Coombs, lawyer for Raymond Hardman of Neola, Utah. "We do not believe there is a compelling state interest in keeping Mr. Hardman or other practitioners of American Indian religion from keeping eagle feathers."

The use of eagle feathers is central to American Indian religion, she added.

Hardman and Samuel Ray Wilgus Jr. of Davis County, neither of Indian descent, were cited for having eagle feathers, which are restricted to tribal members who have permits.

Each appealed U.S. District Court rulings that rejected arguments they were entitled to the feathers because of their religion.

The New Mexico case involves Joseluis Saenz, a descendant of the Chiricahua Apaches. Prosecutors appealed a lower court ruling that seizure of his eagle feathers violated the Religious Freedom Restoration Act.

Lawyers for the Utah men said they based their claims in the lower court on the First Amendment because the Religious Freedom Restoration Act's constitutionality was in question at the time. The law was later struck down by the U.S. Supreme Court.

Lawyers for the three men contended the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act are too restrictive.

But Kathryn Kovacs, a lawyer for the federal government, argued that the demand for eagle feathers exceeds the federal government's supply. They are kept in a repository in the Denver area.

"The government has to provide exemptions for religion only if it doesn't undermine the statutes' purpose," Kovacs said.

Federal officials have suggested removing the bald eagle from the Endangered Species List because its numbers have increased, but Kovacs urged caution.

"There are only 40 pairs (of eagles) in the Southwest region, so I urge you not to overestimate its alleged rebound," she said.

She argued the demand for the feathers might grow if the courts allow non-Indians to have them.

Some of the judges questioned that. Judge Bobby Baldock asked why the government couldn't just approve permits until the feathers run out.

"The government doesn't have a compelling interest in who gets them. The government has a compelling interest in how many are out there in distribution, isn't that right?" Baldock asked.

The arguments were heard by the full 10th Circuit, which set aside the rulings of three separate three-judge panels and consolidated the cases in August. The cases were combined because they raise the same questions. The judges will issue a ruling later.

Update

Native American gets OK to use eagle feathers in religious practices
10th Circuit upholds lower court ruling that seizure of feathers violates Religious Freedom Restoration Act.  08.06.02

Previous

Eagle-feather disputes to get hearing before full appeals court
Separate three-judge panels had issued rulings this week on the issue of whether non-Indians have right to feathers.  08.10.01

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