winslow-4Wind River Sun Dance and Religious Freedom
Laramie – For centuries, the Northern Arapaho Tribe has conducted the Sun Dance, of which the centerpiece is the offering of an eagle to the Creator. Dancers, wearing eagle feathers, chant and blow whistles made from eagle wing bones. The eagle’s tail is placed at the top of a pole in the center of the offering lodge. The wings carry the Tribe’s prayers to the Creator.

Winslow Friday’s family was chosen to “sponsor” – prepare the sacraments for – the 2005 Sun Dance. Friday, who lives in Ethete, WY, now faces a fine of up to $5,000 and imprisonment for one year for shooting and killing a bald eagle on the Wind River Reservation, an eagle he believes was given to his family by the Creator for the Sun Dance.

The Bald and Golden Eagle Protection Act prohibits “taking” an eagle without a permit from the U.S. Fish & Wildlife Service. Mr. Friday argues, under the Religious Freedom Restoration Act, that the Eagle Act impermissibly burdens exercise of his religion. U.S. District Judge William Downes agreed and dismissed the case against Mr. Friday, but in May a federal appeals court in Denver reversed that decision.

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the federal government from “substantially burdening” a person’s exercise of religion unless the government can demonstrate that the regulation that causes the burden is “the least restrictive means of furthering” a “compelling government interest.” Judge Downes found a compelling interest in preserving eagle populations, but he ruled that the FWS permit process is not the least restrictive means of furthering it.

The “biased and protracted” permit process, Downes wrote, reveals “callous indifference” to the religious practices of Native Americans. “It is clear to this Court that the Government has no intention of accommodating the religious beliefs of Native Americans except on its own terms and in its own good time.”

Government treatment of the Sun Dance – indeed, of Native American religious beliefs in general – has ranged from “callous indifference” to violent suppression. At least until the 1960s the U.S. repeatedly attempted to “remove” Native Americans or “assimilate” them into the dominant society – that is, to civilize and Christianize them. Warfare, starvation, land dispossession, forced education of children, outlawing religious practices – all were employed to put an end to tribalism.

Then in the 1978 American Indian Religious Freedom Act Congress announced a national policy to “protect and preserve for American Indians their inherent right to believe, express and exercise [their] traditional religions.” The U.S. Supreme Court, however, held that the Act created no judicially enforceable rights against the government action, noting that even its sponsor, Rep. Morris Udall, had admitted the bill had “no teeth.” (Lyng v. Northwest Indian Cemetery Protective Assoc., 1988). The Lyng Court also ruled that the First Amendment, which forbids Congress from “prohibiting the free exercise of religion,” did not bar logging or road construction on lands in the Six Rivers National Forest in California, long held sacred by the Yurok, Karok, and Tolowa Tribes, even if those activities would “virtually destroy … the Indians’ ability to practice their religion.”

The 1993 RFRA was Congress’s reaction to another First Amendment decision by the Supreme Court, Employment Division v. Smith (1990). In Smith two state employees, Alfred Smith, a Klamath Indian, and Galen Black, a non-Indian, both members of the Native American Church, had been fired for sacramental use of peyote in violation of a state law. They were then denied unemployment compensation because they had been fired for “misconduct.” The Oregon Supreme Court ruled that application of the state law violated their rights under the First Amendment’s Free Exercise Clause. The U.S. Supreme Court reversed, ruling that the First Amendment does not bar “application of a neutral, generally applicable law to religiously motivated action.”

Four members of the Smith Court objected that the “holding dramatically departs from well-settled First Amendment jurisprudence,” and Congress agreed with them. RFRA reinstated the “compelling interest” test (so-called “strict scrutiny”) in all cases where government action substantially burdens religious exercise. Upon signing RFRA in 1993, President Clinton stated that “this Act reverses [Smith] and reestablishes a standard that better protects all Americans of all faiths in the exercise of their religion.”

The Supreme Court subsequently held RFRA unconstitutional as applied to the states, but courts continue to apply it to the federal government.
As the Friday case reveals, however, RFRA does not ensure that an Indian’s free exercise of religion will not be suppressed by federal bureaucrats.
According to Mr. Friday and his attorney John Carlson, the government is operating “what amounts to a secret permit program” under the Eagle Act. They point to these facts, all of which were established at (or at the time of) the evidentiary hearing:

  • Neither Mr. Friday nor any Arapaho elders knew that a take permit was available.
  • One veteran FWS official testified that “there’s no provision for Native Americans to obtain a permit to kill eagles.”
  • The FWS does not train or advise field-level employees about the permit.
  • The “FAQ” (Frequently Asked Questions) tab, “How can I obtain eagle feathers or parts?,” on the FWS website said nothing about a take-permitting process.
  • Instead, the site linked to the website of the National Eagle Repository, a government warehouse where dead eagles and parts are collected and from which they are distributed, upon application, to tribes and tribal members.
  • Most birds and bird parts at the Repository are “very decomposed,” and demand exceeds supply. The waiting period for a whole bird is 3-4 years.
  • A clean, or “pure,” whole bird is required for the Sun Dance.
  • In more than 20 years of the permit program’s existence, no individual tribal member had applied for or received a permit. Only three had been issued, to tribes in the Southwest represented by legal counsel.

Judge Downes conceded that “some regulation of the taking of eagles is necessary,” but he condemned the “biased and protracted” implementation of the permitting process. A three-judge panel of the Tenth Circuit simply adopted the rulings of other courts that “on its face the permitting system is permissible,” and then considered Mr. Friday’s “challenges to aspects of the permitting process that affected him.” The opinions leave the reader to wonder whether the courts actually examined the regulations.

If they had, they would have discovered a maze of rules:

  • Only enrolled members of federally recognized “Indian entities” are eligible to receive a take permit.
  • Applicants must meet “all issuance criteria” of 50 CFR § 22.22, including submission of a signed tribal enrollment certificate, date of birth, and social security number. The applicant also must show that he “is authorized to participate in bona fide tribal religious ceremonies.”
  • Applicants are further subject to 50 CFR Part 13, including the requirement to certify in writing: “I have read and am familiar with the regulations contained in title 50, part 13, of the Code of Federal Regulations and the other applicable parts in subchapter B of chapter I of title 50, Code of Federal Regulations ….”
  • Permits are valid for no longer than a year. Thus, in the case of the Arapaho Sun Dance, a new permit must be applied for every year, by the sponsor of that year’s ceremony.
  • A permit recipient is required by 50 CFR § 13.47 to allow a FWS agent “to enter his premises at any reasonable hour to inspect” the eagle and any records required to be kept.
  • 50 CFR § 22.22(c) allows the FWS to consider unspecified “other criteria” in addition to those stated in the rules.
  • A FWS official explained to the district court that, in practice, “special circumstances” must demonstrate that the Eagle Repository “could [not] satisfy the need” for the bird. This seems to allow the agency, rather than the religious practitioner, to determine the “need” for the eagle.
  • The “other criteria” provision gives the FWS broader latitude to deny an Indian a permit for religious reasons than to deny a rancher a permit to take “depredating eagles” under 50 CFR § 22.23(c).
  • The rule directs permit applicants to apply “to the appropriate Regional Director.” According to FWS testimony, however, applications have been handled not by regional offices but centrally by the Washington office, at least since 2003.

With little or no analysis of these provisions, the Tenth Circuit panel ruled “that the Eagle Act and its regulations are the least restrictive means of pursuing the government’s compelling interest in preserving the bald eagle.”

The court conceded that the “government’s permit process … may be more accommodating on paper than it is in practice,” and “more burdensome than the Northern Arapaho would prefer, and [it] may sometimes subordinate their interests to other policies not of their choosing.” But this is acceptable, the court continued, because “law accommodates religion; it cannot wholly exempt religion from the reach of the law.”

Winslow Friday <br>Photo Courtesy of the Friday Family

Winslow Friday Photo Courtesy of the Friday Family

Mr. Friday did not ask for an exemption. He asked only for the protection spelled out in RFRA: that government not substantially burden his exercise of religion unless it uses the “least restrictive means” to achieve its purpose. The court’s analysis of the program falls far short of the “strict scrutiny” Congress intended.

According to the court, the government’s interest in protecting bald and golden eagles is “compelling as regards small as well as large impacts on the eagle population. … The bald eagle would remain our national symbol whether there were 100 eagles or 100,000 eagles.” But the facts belie the notion that a restrictive permitting system is necessary to protect eagles. The FWS had proposed removing the bald eagle from the endangered species list, and in fact did so in June 2007. Moreover, thousands of (mostly golden) eagles are electrocuted on power lines every year – a fact the FWS concedes. Only once, apparently, has the agency prosecuted electric company officials under the Eagle Act. Instead, it “encourages companies to enter voluntary ‘avian protection plans.'” Failing to offer similar leniency to Indians who need eagles for religious purposes makes a mockery of RFRA and the First Amendment.

Moreover, the initial need for strict protection of eagles was due to predominantly non-Indian activities – pesticide use, bounty hunting, poisoning, land development, etc. When the Act was amended in 1962 to cover golden eagles, a congressional committee reported: “it is evident that the Indians are deeply interested in the preservation of both the golden and the bald eagle.”

The inference is inescapable: non-Indian economic and political interests trump the religious traditions of this continent’s first peoples.

Wind River Reservation Wind River Reservation <br>Image Courtesy of the Northern Arapaho Tribe.

Wind River Reservation Wind River Reservation Image Courtesy of the Northern Arapaho Tribe.

The Tenth Circuit panel also made short shrift of Mr. Friday’s argument that the federal-tribal trust relationship required the government to “engage in outreach about the permitting process.” The court’s response – “there is no trust obligation in a legal sense” – ignores the unique, centuries-old relationship between the federal government and tribes.

The relationship is elaborated in Secretarial Order 3206, “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act.” This 1997 order recognizes a “federal trust responsibility, involving the legal responsibilities and obligations of the United States toward Indian tribes and the application of fiduciary standards of due care with respect to Indian lands, tribal trust resources, and the exercise of tribal rights.” It directs all Interior Department agencies, including the FWS, to:

  • “be sensitive to Indian culture, religion and spirituality,” and
  • “make available to Indian tribes information related to tribal trust resources and Indian lands.”Simply informing tribes that they can apply for permits to take eagles for religious purposes would reduce the burden on Indians and lessen the restrictiveness of the permit program. This failure alone should have invalidated the program and led the court to dismiss the government’s case against Mr. Friday.

According to the late Vine Deloria, Jr. (Standing Rock Sioux, lawyer, philosopher, and Lutheran clergyman), the “great gulf that exists between traditional Western thinking about religion and the Indian perspective” is “the difference between individual conscience and commitment (Western) and communal tradition (Indian).” (For This Land, 1989: 205)

Justice William Brennan understood this difference. Dissenting in Lyng, he wrote that “tribal religions regard creation as an ongoing process in which they are morally and religiously obligated to participate.” Indians fulfill this duty through ceremonies and rituals that “are communal efforts,” and “the entire tribe’s welfare hinges on the success of individual practitioners.” Deloria attests that the “traditional motivation” for the Sun Dance was “always to sacrifice for the benefit of the people.” (Ibid.)

Northern Arapaho Tribal Flag

Northern Arapaho Tribal Flag

The problem, for Native Americans, thus stems in part from the First Amendment itself. As Deloria wrote: “In the West we have assumed that religion is an individual matter, primarily because the Bill of Rights purports to guarantee individual conscience, and partially because the Protestant version of Christianity has always been the dominant religious paradigm.” (Ibid., 281)

The First Amendment and RFRA purport to guarantee to all persons the right to believe, express and exercise their chosen religions. But unless and until federal agencies and the courts are willing to interpret these documents with greater understanding for Native Americans, they will be just two more broken promises.

Postscript: Generally, an appellate court will accept a district court’s factual findings unless they are “clearly erroneous.” The Tenth Circuit panel, however, decided to treat the facts in the Friday case “as constitutional facts, subject to our independent examination.” The purpose of an independent review, according to the Supreme Court in Bose Corp. v. Consumers Union of U.S., Inc. (1984), is “to avoid ‘a forbidden intrusion’ on First Amendment rights.” Federal appellate courts have been deeply divided as to whether they should independently review “district court findings that favor as well as disfavor the First Amendment claimant.”

Later this month Mr. Friday plans to petition for rehearing, asking the entire Tenth Circuit to reconsider only this issue. It’s impossible to predict whether the Friday case is headed to the Supreme Court, but the “constitutional facts” doctrine surely is. The American Civil Liberties Union has recently asked the Court to review another case in which it argues, as does Mr. Friday, that an independent review of the facts should be permissible only where the lower court’s decision does not protect First Amendment rights. A decision by the Supreme Court would affect all claimants in all free speech and free exercise cases.

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Published on June 16, 2008

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