Limits on possession of eagle feathers ruled too restrictive

Thursday, February 19, 2009

SALT LAKE CITY — The government’s ban on the possession of eagle feathers by non-Indians is too restrictive, a federal judge has found.

U.S. District Judge Dee Benson’s finding came Feb. 17 in cases involving two men who were convicted of possessing feathers without a permit. The judge ruled on the government’s ban but didn’t overturn the convictions of Samuel Wilgus Jr. and Raymond Hardman, both of Utah.

Eagle feathers are available only to members of federally recognized American Indian tribes from a national repository in Colorado that strips feathers from eagles found dead.

Benson ruled narrowly on instructions from the Denver-based 10th U.S. Circuit Court of Appeals to decide if the government’s ban was the least-restrictive way to protect eagles, a requirement under the Religious Freedom Restoration Act. RFRA bars the government from substantially burdening a person’s free-exercise-of-religion rights unless the burden furthers a compelling government interest and is the least restrictive means of furthering that interest.

The government had argued that the ban was the least restrictive means available to protect both the eagle population and Native American culture.

Benson, however, rejected this argument, pointing out that eagles had been removed from the federal endangered species list. Benson also said the government hadn’t proved that the demand for eagle feathers would threaten the survival of Native American religions.

“There is therefore no credible evidence that either of the interests the government seeks to protect requires measures so restrictive as the ban on possession by non-Native American adherents to Native American religions,” the judge wrote. “The government has therefore failed to shoulder its burden of demonstrating that the ban is the least restrictive means of furthering its compelling interests, and the prosecution of Messrs. Wilgus and Hardman under the statutes accordingly falls afoul of RFRA.”

Attorney Joseph Orifici, who is representing Wilgus, told The Salt Lake Tribune that Benson’s ruling could lead to the return of Wilgus’ and Hardman’s feathers and that the government must now review its policy.

Hardman’s attorney, Cindy Barton-Coombs, told the Tribune that Hardman believed officials were barring him from practicing his religion.

“It was such a matter of deep religious belief that made Mister Hardman keep fighting,” she told the newspaper.

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