10th Circuit says Wyo. man must stand trial in eagle case
CHEYENNE, Wyo. — A member of the Northern Arapaho Tribe who killed a bald eagle for use in his tribe's Sun Dance in 2005 must stand trial, a federal appeals court ruled yesterday.
A unanimous three-judge panel of the 10th Circuit Court of Appeals in Denver reversed a 2006 decision by U.S. District Judge William Downes of Wyoming that had dismissed a criminal charge against Winslow Friday of Ethete.
In dismissing the charge, Downes said the federal government had shown “callous indifference” to Native American religious beliefs. Downes said the U.S. Fish and Wildlife Service generally refuses to grant permits allowing tribal members to kill eagles, even though federal regulations say such permits should be available.
But the appeals court ruled in U.S. v. Friday that American Indians' religious freedoms are not violated by federal law protecting eagles or its policy requiring American Indians to get permits to kill eagles.
“Law accommodates religion,” Circuit Judge Michael W. McConnell wrote for the panel. “It cannot wholly exempt religion from the reach of the law.”
If convicted of killing the eagle, Friday faces a possible sentence of up to one year in jail and a fine. He declined comment on yesterday's ruling.
Friday has said he shot the eagle with a rifle on the Wind River Indian Reservation in central Wyoming. The reservation is home to both the Northern Arapaho and Eastern Shoshone tribes.
John T. Carlson, an assistant federal public defender who represented Friday, said the ruling “reflects a failure to grasp the unique nature of the Northern Arapaho religious practice surrounding the eagle.”
Carlson said he and his client hadn't yet decided how to respond to the ruling. Their options include asking the full appeals court to hear the case, appealing to the U.S. Supreme Court or allowing the case against Friday to proceed to trial in Wyoming, he said.
Friday, who is in his early 20s, said last year that he didn't know about a federal program that allows American Indians to apply for permits to kill eagles for religious purposes. Lawyers representing him and his tribe have argued that the Fish and Wildlife Service did its best to keep the program secret and only grudgingly issued the permits.
In his 2006 ruling, Downes said it was clear that Friday wouldn't have received a federal permit to kill an eagle if he had applied for one.
Downes wrote that the Fish and Wildlife Service has encouraged American Indians to apply to receive eagle parts from a Colorado repository that holds the remains of birds killed by power lines and other causes. He said the agency makes no effort to encourage American Indians to apply for permits to kill birds on their own.
The bald eagle was removed last year from the list of threatened species under the Endangered Species Act. The bird had been reclassified from endangered to threatened in 1995. However, bald and golden eagles are still protected under the federal Bald and Golden Eagle Protection Act.
John Powell, spokesman for the U.S. Attorney's Office in Cheyenne, said yesterday that the office planned to proceed with the prosecution against Friday.
Kathryn E. Kovacs, a lawyer with the U.S. Department of Justice, told the federal appeals court in arguments last December that Friday had no standing to argue about shortcomings of the federal permitting process because he never applied for a permit before killing the eagle.
In its ruling, the 10th Circuit panel agreed. The court also rejected Friday's argument that the federal Religious Freedom Restoration Act, which prohibits the government from placing undue burdens on religious practices, should block the federal government from prosecuting him for killing the eagle.
The Northern Arapaho Tribe intervened in the case in support of Friday.
“I think overall, we brought attention to the fact that there is this permit system that is out there that the feds have been concealing,” said Chris Schneider, lawyer for the tribe.
“So at least that way, it is a victory for the Northern Arapaho Tribe and Winslow Friday. He's a very courageous young man to have challenged this.”