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United States v. Wilgus

ELR Citation: 32 ELR 20031
Nos. No. 00-4015, 260 F.3d 1199/(10th Cir., 08/08/2001)

The court holds that the Bald and Golden Eagle Protection Act (BGEPA) does not violate the Free Exercise or Establishment Clauses of the U.S. Constitution and, therefore, affirmed an individual's conviction for possessing eagle feathers without a permit. The BGEPA prohibits the taking or possession of bald or golden eagles or their parts unless authorized by regulation for the religious purposes of Native Americans. The individual in this case adheres to Native American religion, but he is not a member of any federally recognized tribe. The court first holds that the BGEPA does not violate the Free Exercise Clause because it is neutral and generally applicable. It is neutral because its primary purpose is to protect eagles and because its exception for Native Americans is intended to benefit a political group, not a particular religion. Moreover, it is generally applicable because its proscription against possessing eagle feathers applies to almost all of society. The court also holds that the BGEPA does not violate the Establishment Clause by permitting members of federally recognized tribes to possess eagle feathers but not others. Allowing tribal members to possess eagle feathers for purposes of worship according to the Native American traditions is rationally related to the government's obligation to preserve tribes' heritage and culture. Therefore, the court upholds the individual's conviction.

Counsel for Plaintiff
Christopher B. Chaney, Ass't U.S. Attorney
U.S. Attorney's Office
350 S. State St., B-36, Salt Lake City UT 84101
(801) 524-5682

Counsel for Defendant
Joseph F. Orifici
Law Offices of Joseph F. Orifici
64 E. Winchester St., Salt Lake City UT 84107
(801) 264-1164

Ebel, J. Before Baldock, J., dissenting, and McWilliams, J.