(May 2, 2008) On May 8, 2008, the U.S. Court of Appeals for the Tenth Circuit ruled that notwithstanding the Religious Freedom Restoration Act (“RFRA”), a member of the Northern Arapaho Tribe of Wyoming can be criminally charged for shooting a bald eagle without a permit.
An individual named Winslow Friday shot an eagle in preparation for the Sun Dance, an annual ritual event for his tribe. He was charged with violating the Bald and Golden Eagle Protection Act (“Eagle Act”). The Eagle Act allows persons to obtain a permit for taking an eagle for Native American religious uses, but Friday did not attempt to obtain a permit. Friday moved to dismiss the charge under the RFRA, which states that the government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability. A federal district court dismissed the charge on this basis. The Tenth Circuit reversed. It noted that under RFRA, the government can impose a burden on religion “only if it demonstrates that application of the burden . . . is in furtherance of a compelling governmental interest; and . . . is the least restrictive means of furthering that compelling governmental interest.” The court found that in the Eagle Act the government has tried to accommodate Native American religions while still achieving its compelling interest in protecting eagles. The Tenth Circuit remanded the case to allow the prosecution to proceed to trial. (United States v. Friday (10th Cir. May 8, 2008), available at http://www.ca10.uscourts.gov/opinions/06/06-8093.pdf).