U.S. v. Friday

• Citation: 525 F.3d 938
• Decision Date: 08 May 2008
• Docket Number: No. 06-8093.,06-8093.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Winslow FRIDAY, Defendant-Appellee, Northern Arapaho Tribe, Amicus Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

525 F.3d 938

UNITED STATES of America, Plaintiff-Appellant, v. Winslow FRIDAY, Defendant-Appellee Northern Arapaho Tribe, Amicus Curiae.

No. 06-8093.

United States Court of Appeals, Tenth Circuit.

May 8, 2008.

Kathryn E. Kovacs, United States Department of Justice, Environment and Natural Resources Division, Appellate Section (Elizabeth Ann Peterson, Elinor Colbourn, United States Department of Justice, Environment and Natural Resources Division, Appellate Section; Matthew J. McKeown and Ronald J. Tenpas, Acting Assistant Attorney Generals, Washington, D.C.; Matthew H. Mead, United States Attorney, John R. Green, Acting United

States Attorney and David Kubichek and Stuart S. Healy, III, Assistant United States Attorneys, District of Wyoming, Casper, WY, with her on the briefs), for Plaintiff-Appellant.

John T. Carlson, Assistant Federal Public Defender, Denver, CO (Raymond P. Moore, Federal Public Defender, Denver, CO and Robert R. Rogers, Assistant Federal Public Defender, Cheyenne, WY, with him on the briefs), for Defendant-Appellee.

Christopher J. Schneider, Baldwin & Crocker, P.C., Lander, WY, for Northern Arapaho Tribe as Amicus Curiae in support of Defendant-Appellee.

Before McCONNELL, SEYMOUR and EBEL, Circuit Judges.

McCONNELL, Circuit Judge.

Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming, shot a bald eagle for use in the tribe's traditional religious ceremony, the Sun Dance. He was charged under federal law with shooting an eagle without a permit, which is forbidden by the Bald and Golden Eagle Protection Act. Mr. Friday responded that the Religious Freedom Restoration Act precludes the government from prosecuting him. After an evidentiary hearing, the district court agreed and dismissed the indictment. We disagree, concluding that the Eagle Act and its regulations are the least restrictive means of pursuing the government's compelling interest in preserving the bald eagle. We therefore reverse and remand the prosecution for trial.

I. BACKGROUND

A. The Sun Dance

The Sun Dance is an important religious ritual once common to nearly all of the Plains Indian Tribes. See George A. Dorsey, The Arapaho Sun Dance 2 (1903); Albert Muntsch, The Relations Between Religion and Morality Among the Plains Indians, 4 Primitive Man 22, 25 (1931). In the last part of the Nineteenth Century, federal officials attempted to suppress the dance because they believed it to be connected with Indian militancy, and some tribes abandoned it. See Clyde Ellis, "There Is No Doubt ... the Dances Should be Curtailed": Indian Dances and Federal Policy on the Southern Plains, 1880-1930, 70 Pac. Hist. Rev. 543, 548-53, 561 (2001); Dorsey, supra, at 1-2. But it has made a comeback, and the Northern Arapaho now perform the dance every year, traditionally after the first thunder of the spring and as late as July. The details are guarded, and access by outsiders is limited. Witnesses at the hearing said they could reveal information about the ritual only with the consent of Northern Arapaho tribal elders.

We do know the following: The ceremony involves a week of preparation, instruction, prayer, and ritual dancing. Each Sun Dance has a sponsor who is responsible for acquiring the materials needed for the ceremony. A crucial element of the ceremony is the construction of a building called the "offering lodge," where the tribe makes a number of sacrifices to its deity. As part of "a protocol that's been handed down from generation to generation," the sponsor is expected to acquire an eagle for the dance. Aplee.'s Supp.App. (hereinafter "Supp.App.") 139. The eagle is seen as "a gift of the Creator." Supp.App. 139. At one point during the dance, the tribe raises up an offering to the Creator on a pole at the lodge. This offering contains the tail fan of an eagle. A Northern Arapaho named Burton Hutchinson testified that the offered eagle represents the central identity of the tribe and its adherence to tradition. As he put it, "that eagle ... has a lot of meaning to oversee us every day, every night." Supp.App. 42.

It is important to the tribe that the offered eagle be "pure." Supp.App. 122. This means that the tail may not be reused, and a new eagle must be sacrificed every year. It also means that the eagle must be taken¹ with care. It cannot have died through poison, disease, or electrocution, and it cannot be roadkill. Beyond the central requirement that the eagle be pure, tribal members disputed the most appropriate way to take an eagle for the Sun Dance, offering different accounts of tribal lore and its application today. Nelson White Eagle, the keeper of the sacred pipe of the Northern Arapaho, testified that it was traditional to hide in a small hole on a mountain, and then trap eagles in a coyote hide as they came by. He said that while he personally would not use in the Sun Dance an eagle that had been shot, as Mr. Friday's was, he could not speak for others of the tribe. Mr. Hutchinson testified that the tribe traditionally builds a small den with a hole in the roof, where the tribe's nominated "eagle catcher" places bait on top and waits until an eagle comes. William C'Hair, a member of the Northern Arapaho Language and Culture Commission, testified that it is traditional to feed the eagle until it cannot fly and then flip it over with a pole; if the eagle grips the pole tightly, its claws will get stuck and immobilize it. Harvey Spoonhunter testified that "in today's world ... it is acceptable" to shoot eagles for the Sun Dance. Supp.App. 149.

There are also tribal hunting regulations that forbid the taking of eagles. Interestingly, these make no explicit exception for the Sun Dance, even though the regulations do make exceptions for hunting "male deer and male elk before the Sundance ceremony." Gov't App. 150. However, these regulations may not necessarily be taken to define Northern Arapaho beliefs. The Northern Arapaho share the Wind River reservation with the Shoshone tribe, a relationship that has not always been amicable. See Shoshone Tribe of Indians v. United States, 299 U.S. 476, 484-92, 57 S.Ct. 244, 81 L.Ed. 360 (1937). The hunting regulations were jointly enacted by the business councils of the two tribes. Mr. Spoonhunter testified that although the tribe usually obeys the joint regulations as a matter of comity with its co-occupants of the reservation, it does not recognize the regulations as law because they were not endorsed by the Northern Arapaho General Council. At oral argument the Tribe's lawyer informed us that if an eagle were taken for the Sun Dance, Northern Arapaho tribal courts enforcing the joint regulation would recognize a defense under unwritten "traditional law" that "predates the Tribe's existence."

Although the eagle used in the Sun Dance is typically a golden eagle, Mr. Friday's was a bald eagle. Mr. Hutchinson testified that he had "never seen where they used a bald eagle at a Sun Dance." Supp.App. 28. Mr. C'Hair, however, testified that a bald eagle is used to represent old age, because the eagle's white feathers symbolized white hair. Thus, he said, "when you're an old man, that's when you qualify to use the bald eagle." Supp.App. 112. Mr. Friday is 21 years old, but Mr. C'Hair explained that "the bald eagle will represent the old people of the tribe," not merely the sponsor or his family. Supp. App. 113.

B. Federal Regulation of Eagle Taking

Both species of eagle are protected by the Bald and Golden Eagle Protection Act (the "Eagle Act"), which criminalizes taking protected birds (or possessing them, dead or alive) without a permit. 16 U.S.C. § 668(a). When it was enacted in 1940, the law applied only to bald eagles, but because golden eagles can sometimes be difficult to distinguish from juvenile bald eagles, the Act was amended in 1962 to include both. Act of June 8, 1940, ch. 278, § 1, 54 Stat. 250, 250-51; Joint Resolution of Oct. 24, 1962, Pub.L. No. 87-884, 76 Stat. 1246. Taking an eagle is punished with a fine up to $5,000 and one year in prison.

In contrast to the federal hostility to the Sun Dance a century ago, Congress and the Fish and Wildlife Service (FWS) now accommodate those Native Americans who need eagles for religious purposes in two ways: the National Eagle and Wildlife Property Repository, and a permitting process. Better known is the Repository, maintained by the FWS in Commerce City, Colorado, just outside Denver. It is a large warehouse where the government collects and freezes any potentially usable dead eagles or eagle parts it encounters. Some are confiscated contraband; some are the victims of electrocution on power lines; some are roadkill. Eagle parts are distributed by application to registered members of Native American tribes who need them for religious purposes.

The Repository does not work well for those whose religion requires the eagles to be pure. Bernadette Atencio, a government witness who is responsible for supervising the Repository, testified that "[m]ost of the time [the eagles a]re very decomposed." Supp.App. 228. Sometimes they are "full of maggots." Supp.App. 229. She also testified that the Repository will describe the bird to an applicant before sending it to make sure that it is usable, and that the Repository will replace unsatisfactory shipments. However, members of the tribe testified that they received parts from the Repository that were insufficiently pure to be usable in the Sun Dance, and were unable to get satisfactory replacements. One member was sent some type of waterfowl.

Despite these problems, parts from the Repository are in very high demand. The Repository sends out 1700-1800 shipments a year, receives few complaints, and has approximately 4000 requests outstanding. The high demand also means that there are delays. The FWS website currently estimates the wait for a "[w]hole tail" from the Repository to be 3.5 years, which is much longer than the wait for assorted smaller parts....