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THURSDAY, AUGUST 9, 2001

In a set of legal disputes with nationwide implications, the 10th Circuit Court of Appeals on Wednesday simultaneously issued, then set aside, decisions in three cases challenging federal protection of bald and golden eagles.

Until the court can resolve the disputes, the protection of eagles -- perhaps the single most sacred animal to many American Indians and Alaska Natives -- is left in doubt.

At stake is the possession of eagle feathers and parts. The Bald and Golden Eagle Protection Act, first passed in 1940, makes it illegal to sell, take, possess or trade bald and golden eagle parts. Eagles are also protected under the Migratory Bird Treaty Act, first passed in 1918.

Exceptions are allowed, however, for "religious purposes of Indian tribes." Through US Fish and Wildlife, an agency of the Department of Interior, American Indians and Alaska Natives may apply for a permit to possess eagle feathers and parts.

But several disputes have arisen over the years. Under existing regulations, last modified in 1999 by the Clinton administration, only members of federally recognized tribes qualify for a permit.

Members of terminated and non-recognized tribes are shut out. Anyone who can prove they have Indian blood but are unable to, or choose not to, enroll in a tribe are also disqualified.

Joselius Saenz, a member of the Chiricahua Apache Tribe of New Mexico, raised the issue after he was cited for possession of eagle feathers and parts without a permit. Since Saenz's tribe was terminated in the late 1800s, he would have been denied a permit anyway.

A federal court sided with Saenz, ordering US Fish and Wildlife officials to return his property. Yesterday, a three-judge panel of the 10th Circuit agreed, stating that the federal government has no "compelling interest" to limit permits to members of federally recognized tribes.

"[W]e do not believe that Mr. Saenz's free exercise rights should be conditioned on his 'political' status -- whether or not he is a member of a federally recognized tribe," the court wrote.

Yet the dispute stretches beyond non-recognized Indians to anyone who claims to practice a Native religion. Two non-Indian men in Utah who say they use eagle feathers for religious purposes are fighting their convictions under federal law.

In the past, courts have dismissed challenges raised by non-Indians. Trust and treaty obligations to Indian tribes allow the federal government to make exceptions not just in eagle possession but in federal hiring practices, courts have ruled.

But as the government acknowledges neither the golden or bald eagle are threatened or endangered, some judges are questioning why non-Indians cannot possess them. If the government has no "compelling interest" to protect the eagles, the religious rights of non-Indians may be be violated by the restrictive permit process.

"Clearly, the government has a special duty to the Native American tribes, but I fail to find support in the cases cited or in my own research for the majority's assertion that this duty justifies violations of the First Amendment" rights of non-Indians, wrote Judge Monroe G. McKay in one case.

Another member of the 10th Circuit, Judge Bobby R. Baldock, had similar concerns. Until the courts can weigh the recent declassification of bald and golden eagles against religious freedom, it is premature to uphold the conviction of non-Indians under the law, he said in another case.

Accordingly, the three cases will be argued jointly before all the judges on the 10th Circuit. A trial is expected within the next year.

Since a similar case is making its way through the 8th Circuit, the dispute has the potential to reach the Supreme Court. If the two circuits come up with different conclusions, the nation's highest court may step in and resolve the issue.

If the 10th Circuit allows non-recognized Indians to obtain permits, there is evidence it would not impact the existing rights of federally recognized tribes, said the court. Up until 1981, anyone who could prove he or she had Indian blood, regardless of enrollment, could have received a permit and the government "has offered no proof that the number of permit applicants would substantially increase" if the practice were re-instated, said the court

Should non-Indians be allowed, it could affect the already limited supply of eagle feathers and parts. In his dissent, Baldock noted there is evidence of a "sizeable pool" of non-Indians who want eagle parts.

Non-Indian possession also has the potential to affect repatriation. If federal authorities cannot prosecute non-Indians for selling artifacts with eagle parts -- an issue in the 8th Circuit case -- they might not be able to return seized property to tribes.

Get the Cases:
SAENZ v. DEP'T OF INTERIOR, No 00-2166 (10th Cir. August 08, 2001)
US v. WILGUS, No 00-4015 (10th Cir. August 08, 2001)
US v. HARDMAN, No 99-4210 (10th Cir. August 08, 2001)

Relevant Links:
Eagle Feathers, BIA - http://www.doi.gov/bia/information/eaglepermit.htm
The Bald Eagle and Golden Eagle Protection Act - http://laws.fws.gov/lawsdigest/baldegl.html
Migratory Bird Treaty Act - http://www.usbr.gov/laws/mbta.html

Related Stories:
Minn. man sentenced for eagle violation (5/31)
Man pleads guilty to selling artifacts (11/2)