U.S v. Wilgus: Eagle Feathers, Religion, and the Politics of Being American Indian

Cara Owen[1]

The Bald and Golden Eagle Protection Act (“Eagle Act”) generally prohibits the possession of eagle feathers with few narrow exceptions.[2] The Eagle Act therefore discriminates against most eagle feathers possessors including sincere practitioners of Native American religion who do not belong to a federally-recognized tribe.[3] Many individuals, both non-Native Americans and Native Americans, have brought claims against the Eagle Act through the Religious Freedom Restoration Act of 1993 (“RFRA”) on the basis that the Eagle Act substantially burdens their freedom to exercise Native American religion.[4] Several appellate courts,[5] including the Tenth Circuit in U.S. v. Wilgus,[6] have held that only American Indians, members of federally-recognized tribes, may possess feathers and then only for the purpose of religious practice.

A. United States v. Wilgus

On June 5, 1998, a Utah Highway Patrol officer pulled over a truck in which appellee Samuel Ray Wilgus was a passenger.[7] After observing what appeared to be drug paraphernalia, the officer searched the truck and found 137 eagle feathers that belonged to Wilgus.[8] At Wilgus’ home, his wife produced four additional feathers that belonged to Wilgus.[9]  Wilgus did not produce an eagle feather permit as required by the Eagle Act and was arrested.[10]

Wilgus is not a Native American, nor is he a member of a federally-recognized tribe; however, Wilgus practices Native American religion.[11] During his religious training, tribal members gave eagle feathers to Wilgus for religious purposes and as gifts.[12] Wilgus argued that the Eagle Act, as applied to a nonmember of a federally-recognized tribe, substantially burdens his freedom to sincerely practice Native American religion, which requires him to possess feathers.[13] 

Initially, the district court did not agree with Wilgus’ reasoning and held in favor of the United States.[14] On appeal, the Tenth Circuit court decided en banc on several of Wilgus’ RFRA claims; however, the court found the evidentiary record lacked sufficient facts to determine whether the Eagle Act was the least restrictive means to promote the government’s compelling interest and remanded.[15]

At the district court level, the court found that the Eagle Act, as applied to Wilgus, violated RFRA.[16]

In 2011, the majority opinion of the Tenth Circuit court, written by Circuit Judge David M. Ebel, held that the current Eagle Act effectively balances and advances the government's two compelling interests[17] through the least restrictive means[18] and neither of Wilgus’ proposed alternatives[19] fulfill the government's compelling interest in realizing a suitable balance between both compelling interests of protecting bald eagles and preserving federally-recognized tribes’ religion and culture.[20]  

The Tenth Circuit determined that the preservation of federally-recognized tribes’ religion and culture, not the preservation of Native American culture in general, is warranted because of the federally- recognized tribes’ “unique and constitutionally-protected relationship with the federal government”[21] which  “spring[s] from history and from the text of the Constitution.”[22] This special relationship is established through judicial interpretation of the government’s trust duty and the recognition in Morton v. Mancari[23] that an individual who belongs to a federally-recognized tribe has a political status different than an individual who does not belong to such a tribe.[24] Therefore, because Wilgus is not a member of a federally recognized tribe, he is not protected from conviction under the Eagle Act. 

B. Alternative to the Current Permitting System: Delegate the Permitting System to American Indians

Given the special recognition given to American Indian’s due to their political status and the United States’ trust duty, a member of a federally-recognized tribe may be in the best position to challenge the Eagle Act through a RFRA claim. Because the current permitting system requires a member of a federally-recognized tribe to wait years before receiving eagle parts, a court may decide that the wait significantly burdens the practice of religion and is not the least restrictive means to achieve its compelling interests. Therefore, the Eagle Act would be in violation of the RFRA.

However, in order to reach such a conclusion, the Tenth Circuit requires that the government need only support its current regulatory scheme and contest only those alternative schemes provided by the claimant.[25] Therefore, the prospective challenger must provide at least one alternative to the current system. 

The court acknowledged that the permitting system is not perfect and the process could be more accommodating to permit requests from federally-recognized tribal members.[26] Therefore, one way in which the permitting system may be improved is by increasing the visibility and input of its intended beneficiaries—American Indian tribal members.[27]    

The prospective challenger may propose, as an alternative to the current permitting system, that the federal government may improve such system by delegating the permit process to tribal councils and, therefore, the proposed system may allow American Indians to apply for Eagle Act on the reservation, rather than sending their applications to the Fish and Wildlife Service (“FWS”) regional office.[28]  After the tribal council decides to grant a permit, then it would send the permit to FWS for processing and eagle feather distribution.[29]  Through this process, the tribe itself would establish the criteria for and priority of granting permits.

The government’s delegation of the permitting system may also allow the tribal council to grant emergency permits to take eagles in the wild—which it also currently allows, but rarely grants.[30]   An emergency permit to kill in the wild would only be granted in a narrow exception as defined by the tribe. While such a practice may provide a slippery slope in which to grant emergency permits, the FWS could allot only a limited number of emergency permits to each tribe, just as they would set the limit on the number of permits to receive eagle parts.[31]  In this manner, the tribe would have a say in the types of activities that warrant special emergency treatment, and in turn would create its own permitting priority system.[32]

This proposal would allow American Indian tribes, not the federal government, to determine who may receive feathers for religious purposes, which may or may not include individuals like Wilgus. Also, it would mostly likely increase the speed of granting permits and obtaining eagle parts as well as alleviate the human resource constraints at the FWS.[33] Furthermore, this alternative would “require genuine, government-to-government consultation, increased education, and a sincere recognition of tribal sovereignty,” while acknowledging the sensitivity of such religious issues, and thereby fostering the much-needed respect for tribal sovereignty and self-regulation.[34]

However, until such American Indian challenger comes forth with such a proposal and the court determines that the proposed alternative is the least restrictive means of achieving the government’s dual compelling purposes, non-American Indians, such as Wilgus, will not be allowed to possess eagle feathers without fear of prosecution.  Even if the new challenger is successful and the permitting system is delegated to the tribal council, non-tribal members still will not be able to possess feathers unless the tribe allows it.  Therefore, for individuals like Wilgus, there is very remote chance of possessing eagle feathers legally.

[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.

[2] Bald and Golden Eagle Act, 16 U.S.C. § 668a (stating that the exceptions include possession by members of federally-recognized tribes for religious purposes and “for the scientific or exhibition purposes of public museums, scientific societies, and zoological parks”).

[3] Id.

[4] Non-Native American cases include:  United States v. Antoine, 318 F.3d 919 (9th Cir. 2003); United States v. Hardman, 297 F.3d 1116 (10th Cir. 2002); United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011); Gibson v. Babbitt, 223 F.3d 1256 (11th Cir. 2000) (per curiam). Native American cases include: United States v. Friday, 525 F.3d 938 (10th Cir. 2008); United States v. Oliver, 255 F.3d 588 (8th Cir. 2001); United States v. Hugs, 109 F.3d 1375 (9th Cir. 1997); United States v. Tawahongva, 456 F. Supp. 2d 1120 (D. Ariz. 2006).

[5] The appellate courts in the Ninth, Tenth, and Eleventh have held against non-American Indian claims and the Eighth, Ninth, and Tenth Circuits have upheld Eagle Act convictions of American Indians who possessed eagles without permits or took without a take permit.

[6] United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011).

[7] Wilgus, 638 F.3d at 1280.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 1277.

[14] Id.

[15] United States v. Wilgus, 606 F. Supp. 2d 1308, 1328, 1335 (D. Utah 2009).

[16] Id.

[17] The government’s two compelling (and competing) interests are the protection of eagles and preservation of Native American religion and culture. The court described the first interest of protecting the bald eagle as “straightforward” as it is “our national symbol, and the golden eagle, as its survival and the survival of the bald eagle are intimately intertwined.” The court found that the government’s second interest is the protection of the culture of federally-recognized Indian tribes, not the protection of Native American religion and culture in general. Wilgus, 638 F.3d at 1285, 1290-91.

[18] The court notes that by limiting the permitting process to only members of those recognized tribes, the United States does its best to guarantee that those tribes, which share a unique and constitutionally-protected relationship with the federal government, will receive as much of a scarce resource (eagle feathers and parts) as possible (emphasis added). Id. at 1295.     

[19] Wilgus’ first proposed alternative would allow all practitioners of Native American religion to apply for permits. The court found that this solution would reduce Wilgus’ religious burden and would not likely impact the interest in protecting eagles; however, the court felt that the open permit system would increase the waiting time for eagle parts and feathers for federally recognized tribes and thereby harm tribal members. The court rejected Wilgus’ second alternative that would have allowed tribal members to give feathers to non-members who practice Native American religion. Like the first proposed alternative, the court found that by lessening the burden for non-tribal members like Wilgus, it would harm tribal members by reducing the overall amount of feathers available to tribes. Id. at 1292-96.

[20] Id. at 1289.

[21] Id. at 1295.

[22] Id.

[23] 417 U.S. 535 (1974).

[24] Mancari, 417 U.S. at 549 n.23.  In the 1974 secular case of Morton v. Mancari, the Supreme Court determined that the Federal Bureau of Indian Affairs’ preference for employing American Indians is political rather than racial in nature. The court held that an individual’s status as “American Indian” turned on that individual’s membership in a federally recognized Indian tribe, not the ancestry or race of the individual. By emphasizing the political aspect of “being American Indian” over the ancestral aspect, the Court introduced the political classification doctrine. Today, Mancari stands for the idea that “American Indian” refers to an individual who has membership in a political category, not in a racial nor ancestral group. Therefore, preferential treatment for American Indians is solely a political matter under Mancari. Id. at 535-37.

[25] Wilgus, 638 F.3d at 1289.

[26] United States v. Friday, 525 F.3d 938, 960 (10th Cir. 2008).

[27] Jessica L. Fjerstad, The First Amendment and Eagle Feathers: An Analysis of RFRA, BGEPA, and the Regulation of Indian Religious Practices, 55 S.D. L. Rev. 528, 551 (2010).

[28] Id.

[29] Id. at 552.

[30] Id.

[31] Id.

[32] Id.

[33] Id. at 551.

[34] Id.