Eagle killing case belongs in tribal court

2009-10-07T00:00:00Z Eagle killing case belongs in tribal courtStar-Tribune Editorial Board Casper Star-Tribune Online
October 07, 2009 12:00 am  • 

The federal government's four-year effort to prosecute an Ethete man, Winslow Friday, for killing a bald eagle for use in his Northern Arapaho tribe's religious Sun Dance ceremony may be almost over. It's high time for it to end.

U.S. District Judge Alan Johnson of Cheyenne has ordered the transfer of Friday's case to a tribal court, which should have a special insight about the underlying issue of American Indian religious freedoms. The young man has endured a baffling turn of events as the case has made its way through the federal court system.

It all started when Friday made a promise to his dying grandmother to participate in the Sun Dance, a sacred ceremony under the Religious Freedom Restoration Act that requires an eagle. He admitted shooting a bald eagle on the Wind River Indian Reservation in March 2005, but he added that he didn't know it was illegal. Friday also didn't know about a federal process to legally obtain a permit to take one of the birds. In fact, most American Indians were unaware that it existed.

In 2006, U.S. District Judge William Downes properly dismissed all criminal charges against Friday for failing to get federal permission to shoot the eagle. The judge noted that bald eagles are thriving and no longer protected under the Endangered Species Act. A limited harvest by American Indians, he added, is not considered a threat to the species.

While federal regulations say eagle permits should be available to American Indians, Downes found that the U.S. Fish and Wildlife Service generally refuses to grant such permits to Indians. So why should anyone bother to apply, or be prosecuted for not applying?

There is also a federal repository of eagle carcasses in Colorado, but it's woefully inadequate. Birds killed illegally or by accident are supposed to be available to Indians who apply to use them in religious ceremonies. But the program has a four-year backlog of applications. Worse, tribal officials said many of the bodies of the repository's eagles have deteriorated so badly they cannot be used.

It's no wonder that Downes concluded that the federal response to American Indians' requests for eagles showed "callous indifference" to their religious practices.

But unbelievably, a three-judge panel of the 10th Circuit Court of Appeals in Denver reversed Downes' ruling and ordered that a criminal trial be held on the misdemeanor charge. The penalties are significant: If convicted, Friday could face up to a year in jail and a fine of $100,000.

Friday set his sights on the U.S. Supreme Court, hoping it would be interested in the religious freedom issues at hand. But the high court announced earlier this year that it would not hear Friday's appeal, and a trial was set to begin in Johnson's court until last week's transfer to tribal court.

The criminal charges against Friday should finally be dismissed. But that still leaves the issue of how to prevent similar problems while guaranteeing American Indians the right to practice their religion.

It makes no sense for the federal government to keep operating a phantom permit process. Why not set a quota of eagles to be used ceremonially, and let tribes allocate the birds among themselves? Since the feds are clearly not capable of properly operating the federal repository, let the tribes take control of it.

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