Post by blackcrowheart on Oct 22, 2006 16:10:11 GMT -5
Judge: Preserve tribal religion
By BRODIE FARQUHAR
Star-Tribune correspondent
It's important for the federal government to protect bald eagles, but it also has a compelling interest in preserving Indian tribes and their cultures, a federal judge determined.
That's why U.S. District Judge William Downes dismissed a federal charge against a Northern Arapaho tribal member who killed a bald eagle last year, the judge explained in a written decision issued Friday.
The ruling was hailed by Northern Arapaho leaders on Wyoming's Wind River Indian Reservation.
"This decision shows that the rights of Native Americans are taken seriously in the federal courts of Wyoming," Northern Arapaho Business Council member Harvey Spoonhunter said in a news release. "We appreciate Judge Downes' attentive and clear-sighted approach to this issue."
Winslow W. Friday was charged with taking a bald eagle without first obtaining permission to do so from the Interior Department in violation of the Bald and Golden Eagle Protection Act. In a case that garnered wide attention among American Indian tribes, Friday argued that the bald eagle was taken for use in the Arapaho Sun Dance in 2005, as was thus a protected religious use.
Downes, based in Casper, said that although the nation's bald eagle population has increased, the U.S. Fish and Wildlife Service has done nothing to alleviate a burden on Indian religious practices.
"(I)t is clear to this Court that the Government has no intention of accommodating the religious beliefs of Native Americans except on its own terms and in its own good time," the judge ruled.
Downes found the federal government's position to be too burdensome -- that the only way for tribal members to obtain eagles and eagle parts is through application to the National Eagle Repository in Commerce City, Colo. The repository is the national salvage collection point for bald and golden eagles killed by cars and power lines, starvation, poisonings and illegal shootings. Eagle parts are then parceled out to American Indians for use in a variety of religious ceremonies.
Northern Arapaho elders have taken the position that the repository's eagles are in such bad condition, that these "carrion birds" can't be used in religious ceremonies. The elders also maintain that Arapaho religious ceremonies require that eagles be taken in a specific and traditional way.
Downes' ruling noted that American Indian demand for eagle parts far exceeds supply, resulting in delays of months and even years before requests could be met. Downes noted that while the Fish and Wildlife Service can issue lethal take permits for eagles, the agency has rarely done so.
Further, the judge said the Fish and Wildlife Service has no outreach to Indian tribes regarding the availability or even the existence of lethal take permits. Taken all together, Downes said, it was clear that Friday would not be accommodated in seeking a lethal take permit -- that it was essentially futile to try.
The competing laws in the case were the Bald and Golden Eagle Protection Act versus freedom of religion under the First Amendment and the Religious Freedom Restoration Act.
"This is an important ruling because it emphasizes the sanctity of the Sun Dance and the obligation of the Arapaho people to nurture our sacred ceremonies for future generations," said Nelson White Sr., a Northern Arapaho Business Council member.
Chris Schneider of the Baldwin & Crocker law firm in Lander -- which wrote a "friend of the court" brief in defense of Friday -- said the stage is set for a federal appeal which could take the issue to the U.S. Supreme Court for final resolution.
Schneider explained that Downes' ruling -- within the jurisdiction of the federal 10th Circuit -- is exactly opposite to an Arizona federal ruling within the jurisdiction of the 9th Circuit.
Stu Healy of the U.S. attorney's office acknowledged that there are conflicting rulings between the two circuits, but said it would be "very premature" to predict a Supreme Court showdown. He said Downes' ruling is under review by his office, and a decision will be made before the end of the month whether to appeal the case.
Sarah Krakoff, a University of Colorado law school professor who specializes in Indian law, tentatively agreed that the case could wind up before the U.S. Supreme Court -- but only after many more actions and the highest court agreeing to hear the case.