A judge ruled Tuesday that a federal ban on the possession of eagle feathers by non-Indians is too restrictive, a victory for two Utah men who have fought for a decade to use the feathers as part of their practice of Native American religion.
The decision could lead to the return of feathers to the men, who are not federally recognized tribal members, and open the door for others like them to apply to get the feathers, according to attorney Joseph Orifici.
"The government has to revisit its policy," said Orifici, a Holladay lawyer representing Samuel Wilgus Jr., one of the litigants.
Andrew Ames, a spokesman for the Department of Justice, said Tuesday the government is studying the ruling and has not determined its next step.
U.S. District Judge Dee Benson said Tuesday making non-tribal members ineligible to apply for feathers at a national repository and subjecting them to possible criminal prosecution -- the way chosen by the government to protect both eagles and the Native American culture -- puts a burden on the free exercise of religion.
The judge also said the government failed to prove the ban was the least restrictive method possible to achieve those goals, a requirement under the Religious Freedom Restoration Act (RFRA). The act requires that religious practices be accommodated unless a compelling governmental interest can be demonstrated.
Benson pointed out that bald eagles have been moved off the federal list of threatened and endangered species. In addition, the judge said, there is no relevant evidence that the demand for feathers will threaten the survival of Native American religions.
Wilgus and Raymond Hardman were convicted in separate cases of possessing feathers without a permit.
Authorities seized 141 eagle feathers from Wilgus, an adopted member of the Paiute Indian Peak Band in southern Utah, during a traffic stop near Fillmore in June 1998, according to court records. He entered a guilty plea under the Bald and Golden Eagle Protection Act, with a condition that he could appeal, and was sentenced to probation and community service.
Hardman, a northern Utah resident, was given a bundle of prayer feathers, which included a golden eagle feather, by a Hopi tribal religious leader in 1993 after transporting the body of his son's godfather to Arizona.
He was charged with violating the Migratory Bird Treaty Act after his estranged wife, an enrolled member of the S'Kallum Tribe, reported he had the feather. He was convicted in 1999 and ordered to pay a small fine.
Wilgus and Hardman claimed their rights were violated under the religious clause of the First Amendment, as well as the RFRA, and appealed to the 10th U.S. Circuit Court of Appeals in Denver. The entire court eventually heard their cases, which were combined for appeal, and sent the matter back to Utah for a determination on whether possession restrictions violated the RFRA.
Attorney Cindy Barton-Coombs, who represents Hardman, said her client believed the government was forbidding him from practicing his religion.
"It was such a matter of deep religious belief that made Mister Hardman keep fighting," she said.
To provide feathers for use in religious ceremonies by American Indians, the National Eagle Repository in Colorado collects dead eagles and distributes their parts to eligible applicants.
Most of the eagles are salvaged by state and federal wildlife personnel. Many die of natural causes; others die by electrocution when they hit a power line or from collisions with vehicles. Birds that were unlawfully trapped or shot are held as evidence in criminal cases.
Other sources of eagle parts include bird sanctuaries, where personnel collect feathers when eagles molt and send them to the registry.
