In a case pitting religious freedom against preservation of wildlife and tribal culture, the U.S. Court of Appeals 10th Circuit ruled Tuesday that a non-Indian practitioner of a Native American faith tradition could be prosecuted for possessing eagle feathers.

The ruling is foremost a victory for the U.S. government’s efforts to protect eagles, but it’s also a positive result for Indian tribes, said Richard Guest of the Native American Rights Fund.

The case required the court, “to navigate the dangerous terrain at the intersection of the federal government’s obligations … to refrain from imposing burdens on the individual’s practice of religion and, on the other (hand), to protect key aspects of our natural heritage and preserve the culture of Native American tribes,” the ruling said.

Samuel Ray Wilgus, a non-Indian resident of Utah, was arrested in June 1998 for possessing 141 feathers of bald and golden eagles.

The Eagle Act of 1940 (amended in 1962) bans the possession of eagle feathers or parts except for certain uses, including scientific studies and “the religious purposes of Indian tribes.”

Federal regulations provide the religious exception only to members of recognized tribes who obtain permits and feathers from the National Eagle Repository in Commerce City, which stores feathers and parts harvested from dead eagles by federal wildlife authorities.

Demand greatly exceeds supplies, and permittees typically wait a long time for their requests for feathers to be filled. The feathers aren’t transferable, although they may be handed down from generation to the next by one Indian to another.

“There is a real scarcity of these items, and this ruling, by limiting them to tribal members, will not make the current shortage any worse,” said Jack Trope, executive director of Association of American Indian Affairs.

Wilgus’ defense was the Religious Freedom Restoration Act of 1993, which prohibits the federal government from “substantially burdening religious freedom” unless there is a compelling government interest. And that interest must be served using the “least restrictive means.”

Wilgus appealed his conviction, saying the exercise of his religion requires him to possess eagle feathers. U.S. District Court in Utah held in 2009 that prosecution of Wilgus violated the religious freedom act. The Appeals Court Tuesday reversed that decision.

Wilgus, raised a Baptist, moved to Utah and lived with members of the Southern Paiute Nation, where he received training in native spiritual practices and received eagle feathers as gifts.

There was no question, the court said, that Wilgus’ beliefs were sincerely held or that the law placed a burden on those beliefs.

Thus, the Eagle Act could only be enforced in the face of RFRA if the government advanced a compelling interest and used the least restrictive means.

The bald eagle is rare, though no longer listed as endangered, and it is one of the enduring symbols of our nation, the court said. And immature golden eagles, while less scarce, are virtually indistinguishable from bald eagles.

The courts recognized in previous cases that the federal government has a historical obligation and interest in preserving Native American culture but “left the precise contours of that interest in this situation undefined,” the Appeals Court stated.

The Utah District Court in the Wilgus case found that the U.S. hadn’t established that limiting permits to Indians was the least restrictive means for implementing the protections of the Eagle Act.

The District Court considered opening the permitting process to all sincere practitioners of native traditions regardless of ethnicity or tribal membership. It also considered, as Wilgus asked, allowing tribal members to legally give eagle parts as gifts to non-tribal members.

The Appeals Court said that Congress, as a consequence of the forcible seizure of Indian lands by the U.S., could give special treatment to sovereign tribal entities, not as a function of their race or of Native American spritual traditions, but because of their tribal or political identity.

The Appeals Court found that no one can reliably estimate how many non—Indian adherents of Native American religions are out there or how many would apply for the limited supply of repository feathers. The court also noted that pracitioners of Afro-Caribbean religions might demand eagle feathers. And there is a thriving black market in feathers.

The court said it can’t be demonstrated that opening the application process to non-tribal members would lessen the government’s ability to protect eagles by increasing eagle mortality. The repository’s feathers are found or taken from eagle carcasses.

However, the court said, it could drastically impact the access of tribal members to those feathers.

And, the court said, allowing tribal members to give feathers to non-tribal “sincere” practitioners would create an impossible law-enforcement situation for wildlife officals, turning them into “religion cops,” and ultimately reducing the supply of feathers available to tribes.

“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 court wrote.

Electa Draper: 303-954-1276 or edraper@denverpost.com