United States v. Wilgus, No. 09-4046 (10th Cir. 2011)Annotate this Case
Wilgus was arrested for violating the Bald and Golden Eagle Protection Act, 16 U.S.C. 668, which prohibits possession of eagle feathers, but excepts possession for religious purposes of Indian tribes. Wilgus is a follower of a Native American faith and blood-brother to a Paiute, but not a member of a recognized tribe, nor is he Indian by birth. He received at least one feather for religious purposes. Following a remand, the district court held that application of the Eagle Act to Wilgus would violate the Religious Freedom Restoration Act, 42 U.S.C. 2000bb-1 (RFRA), which prohibits government from substantially burdening religious freedom, except to forward a compelling governmental interest via the least restrictive means. The Tenth Circuit reversed. The government has competing compelling interests in protecting eagles and in preserving Native American religion and culture. The RFRA exception is intended to protect the religion and culture of tribes, not individual practitioners. Tribes are quasi-sovereign political entities; protection of faith practices among the general public might violate the Establishment Clause. The government need not refute every option to satisfy the least restrictive means prong of RFRA; the RFRA exception balances the competing interests. Proposed alternatives, involving creation of a feather repository, opening permits to all sincere adherents to Native American religion, or allowing Native Americans to gift feathers, would either be impractical or have a negative impact on governmental goals.