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Bald eagle case raises issue of religious liberty

Charged with killing a bald eagle, a Native American faces a 'losing battle' against a law that he says limits practice of his religion.

September 21, 2009|DeeDee Correll | Correll writes for The Times.

COMMERCE CITY, COLO. — On Wyoming's Wind River Indian Reservation, Winslow Friday is preparing to surrender in his long fight with the federal government.

The seeds of the conflict were planted four years ago when Friday shot a bald eagle out of a tree. His cousin needed a tail fan for an upcoming Sun Dance, the Northern Arapaho tribe's most important religious ceremony, and Friday wanted to help.

So when Friday spotted the bird, he seized his chance.

Charged with killing a bald eagle in violation of federal law, Friday had argued that the law hinders the practice of his religion -- a battle closely watched on the reservation.

"Some agreed with what he did, some didn't," said tribal spokesman Donovan Antelope. "But they all agree with the reason he did it -- for the Sun Dance. We know he wasn't doing it just to kill an eagle."

For The Record
Los Angeles Times Saturday, September 26, 2009 Home Edition Main News Part A Page 4 National Desk 2 inches; 96 words Type of Material: Correction
Bald eagle killing: An article in Monday's Section A about a Native American facing criminal charges for killing a bald eagle reported that federal laws protecting eagles provide an exception for Native Americans, who can acquire dead birds from a national repository or may apply for a permit to "take," or kill, an eagle for a ceremony. The U.S. Fish and Wildlife Service issues such permits only when the person can demonstrate that the taking of the bird is part of the ceremony. If the ceremony only requires eagle body parts, a permit is not issued.

Now, though, Friday is giving up. Having exhausted his legal options, he's hoping for a plea agreement that will avoid a trial. "The attorneys say that [a trial] would be a losing battle," said Friday, 25, a former oil field worker studying to be a civil engineer.

Friday's case represents the latest and most high-profile fight in a string of battles over how to balance conservation with religious liberty.

A federal official summed up the dilemma.

"You have a precious commodity. It's precious to Native Americans, but it's also precious to the American people. How do you balance that? We're trying our best," said Bernadette Atencio, who supervises the National Eagle Repository in Commerce City, Colo., which collects dead eagles and provides them to Indians for religious use.

Once endangered, the bald eagle has rebounded in recent decades but remains under the protection of the federal Bald and Golden Eagle Protection Act. The law provides an exception for Native Americans who want eagles for ceremonies: They can acquire birds from the repository or may apply for a permit to "take," or kill, an eagle.

But many tribes eschew both options, saying the former can take years and yield unsuitable specimens.

The latter, they say, is a process so obscure that even some federal officers have been unaware of it.

In Wyoming, Friday didn't pursue either option before he killed the eagle, which carries a maximum penalty of one year in jail and a $100,000 fine. He argued that a repository bird was unacceptable and that his tribe didn't even know a permit system existed.

In 2006, a federal judge sided with Friday, dismissing the case. Prosecutors appealed to the 10th U.S. Circuit Court of Appeals, saying the permit system was adequate and used regularly by some tribes, such as the Hopi.

Last year, the appellate court ruled in favor of the government and ordered Friday to stand trial. This year, the U.S. Supreme Court declined to hear his appeal, prompting his willingness to negotiate with prosecutors. Prosecutors declined to comment on Friday's case.

(At least one person a year is convicted of killing an eagle, though most are not Native Americans, according to media reports.)

In cases like Friday's, the courts generally have held that the U.S. Fish and Wildlife Service's methods -- the repository and permit system -- do not hamper religious practices, said Sarah Krakoff, a University of Colorado law professor.

That's a source of frustration for many tribes, said Suzan Shown Harjo, president of the Morning Star Institute in Washington, which advocates for traditional and cultural rights.

"Restrictions are a way of controlling the religions themselves," she said.

Antelope echoed that view: "People are fed with up with the federal government telling them: 'This is what you have to do for your religion. This is how we feel you should do it.' "

Federal officials said they've tried to make the permit process more accessible.

"We recognized we weren't getting the word out very well, and we've made more of an effort," said Eliza Savage, a Fish and Wildlife regulatory analyst.

Yet the agency doesn't wish to publicize the process too much. "We're not in the business of trying to generate interest in the taking of wildlife," Savage said.

The agency typically receives two or three applications a year and approves all but those in which the applicants don't meet the criteria, such as not belonging to a federally recognized tribe or acknowledging they don't "need" the bird, Savage said.

Founded in the 1970s, the repository every year receives about 2,000 carcasses of eagles struck by cars, electrocuted or killed by natural causes; it has a waiting list of 6,000 requests from Native Americans, Atencio said. Some orders -- such as those for talons or heads -- can be filled quickly, but it can take years to receive a whole bird in good condition.

"Those are pretty few and far between," Atencio said as co-worker Dennis Wiist opened an ice chest shipped from Tennessee.

It contained a frozen eagle whose head was rotted and tail feathers broken, but whose wings seemed usable.

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