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United States v. Wilgus

ELR Citation: 41 ELR 20125
Nos. No. 09-4046, (10th Cir., 03/29/2011) conviction upheld

The Tenth Circuit held that an individual's conviction under the Bald and Golden Eagle Protection Act for unlawfully possessing 141 eagle feathers does not violate the Religious Freedom Restoration Act of 1993. The individual is a follower of a Native American faith but is neither a member of a federally recognized tribe nor Indian by birth. Contrary to the decision of the lower court, the existing scheme for issuing eagle feather possession permits and enforcing the Eagle Act is the least restrictive means of forwarding the government's compelling interests. By allowing only members of federally recognized tribes an essential though otherwise prohibited commodity (eagle feathers and parts), the United States ensures that those tribes are able to continue to practice their traditional culture to the greatest extent possible. And 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 very scarce resource as possible. The lower court's preferred alternative regulation scheme—opening the permitting process to all sincere practitioners of Native American religion—would fail to advance the government's compelling interest in preserving the religion and culture of federally recognized Indian tribes. And the individual's proffered alternative regulatory scheme—allowing members of tribes to give feathers to non-members who practice Native American religion—also fails to advance the government's compelling interest in protecting and fostering the religion and culture of federally recognized Indian tribes.