Court orders American Indian to trial for shooting eagle

By Ben Neary • The Associated Press • updated May 9, 2008 7:58 am

Cheyenne, Wyo. – An American Indian who shot a bald eagle for use in a tribal religious ceremony must stand trial, a federal appeals court has ruled.

A three-judge panel of the 10th Circuit Court of Appeals in Denver on Thursday reversed a 2006 lower court ruling that dismissed a criminal charge against Winslow Friday, a Northern Arapaho Indian who has acknowledged shooting a bald eagle in 2005 during the tribe's Sun Dance.

In dismissing the charge, U.S. District Judge William Downes of Wyoming said the federal government has shown "callous indifference" to American Indian religious beliefs. Eagle feathers are a key element of ceremonies of the Northern Arapaho and many other tribes.

The appeals court ruled that American Indians' religious freedoms are not violated by federal law protecting eagles or the government's policy requiring American Indians to get permits to kill the birds.

"Law accommodates religion," the court said in its ruling. "It cannot wholly exempt religion from the reach of the law."

Friday declined to comment on the court's ruling. If convicted, he faces up to one year in jail and a $100,000 fine.

Friday's public defender, John T. Carlson, 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 haven't decided how to respond to the ruling. Their options are 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.

John Powell, spokesman for the U.S. Attorney's Office in Cheyenne, said the office planned to proceed with the prosecution.

Friday, who's in his early 20s, said last year 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 U.S. Fish and Wildlife Service did its best to keep the program secret and only grudgingly issued permits.

In his 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.

The judge 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 of their own.

The bald eagle was removed last year from the list of threatened species. It had been reclassified from endangered to threaten in 1995. However, the species is still protected under the federal Bald and Golden Eagle Protection Act.

Kathryn E. Kovacs, a lawyer with the U.S. Department of Justice, told the federal appeals court in arguments in 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.

The appeals court agreed. It also rejected Friday's argument that the federal Religious Freedom Restitution Act, which prohibits the government from placing undue burdens on religious practices, should block the federal government from prosecuting him for killing the eagle.