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Feather Dust-up: Why the DOJ Feather Policy Must Change

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Native Americans have been using eagle feathers and other parts in their religious and ceremonial practices since “time immemorial.” However, as the federal government passed laws and regulations and entered into treaties to protect the eagle and migratory bird populations, Native Americans have been left with few legal options to obtain these sacred objects: File an application through U.S. Fish and Wildlife Service’s (FWS) National Eagle Repository or be given the needed feather or part by a fellow tribal member.

Adding to these challenges has been confusion within the tribal community about FWS’s and the Department of Justice’s (DOJ) positions regarding the prosecution of tribal members under wildlife laws. On October 12, 2012, the DOJ issued a memorandum clarifying the rights of members of federally recognized tribes to possess, carry, use, and wear protected bird feathers, including eagle feathers. While the memo was a welcome clarification of DOJ policy, it did not provide the complete relief the tribal community needed. Specifically, the DOJ reiterated its support for the distribution of feathers and parts through the National Eagle Repository rather than provide for increased tribal involvement in distribution. Additionally, it excluded non-federally recognized tribes and individuals from the exemptions from wildlife laws provided to members of federally recognized tribes.

The National Eagle Repository, which manages the distribution of eagle parts and feathers to members of federally recognized tribes, is administered by FWS, Office of Law Enforcement. The Repository serves as a collection point for dead eagles and parts which are then shipped to qualified applicants on a first-come, first-serve basis. According to the website of the National Eagle Repository, over 5,000 people are on the waiting list and can expect to wait approximately three and a half years for a whole eagle.

Both within and outside the tribal community, some believe that the tribes should manage the distribution of eagle feathers and parts. Many Native Americans find it humiliating to ask for permission from the federal government to obtain objects required to practice their religion. Tribal involvement is not without precedent. FWS established the first Native American managed feather repository in 2010 with the Comanche Nation Ethno- Ornithological Initiative (Sia), for the distribution of non-eagle feathers.

Sia Founder and Director William Voelker stated in a telephone interview that he believes the Native American community is in a unique position to oversee the distribution of feathers and parts within the community. He thinks that it is a difficult task for a group or agency outside the culture (such as FWS) to meet the needs of the tribal community. “Those within the tribal community are much more cognizant of the spiritual and historical significance of the parts and feathers they are distributing,” says Mr. Voelker. Sia invokes historically accurate purification rituals prior to distributing its feathers and ensures that only the proper individuals handle them in accordance with tribal traditions.

Mr. Voelker has personally viewed eagle carcasses distributed by the National Eagle Repository to tribal recipients and noted that the packaging method utilized (i.e., placing the eagle into a plastic bag and knotting it) sometimes leaves the tail of the eagle curved. This can be problematic as the condition of the feathers and parts is important for religious and ceremonial use.

Additionally, the National Eagle Repository operates strictly on a first-come, first-serve basis; however, some tribes have an immediate and unpredictable need for eagle feathers. For example, certain tribes have an important ritual requiring the use of an eagle feather which must be performed immediately following the death of an elder.

Sia additionally holds a Native American Religious Use permit which allows for the housing of eagles at their facility and permits them to distribute the naturally molted feathers of these eagles to members of any federally recognized tribe for religious purposes. Unlike the National Eagle Repository, Sia is not bound to distribute the feathers on a first-come, first-serve basis, and can disperse feathers to meet the immediate religious needs of a particular tribe.

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Clearly the details regarding tribal involvement in the eagle feather distribution process need to be discussed further. However, it is apparent that the National Eagle Repository has been unable to fulfill the needs of the Native American community. The DOJ memo failed to address these concerns and support the expansion of the role of the tribal community in the process, choosing instead to keep the status quo.

The language of the DOJ’s policy clarification additionally excludes a large class of members of the Native American community from relief from wildlife protection laws: non-federally recognized tribes such as members of state-recognized tribes and others who are not affiliated with a federally recognized tribe. Thus, those who identify as Native Americans and require certain migratory bird parts or feathers for ceremonial or religious purposes, but do not belong to a federally recognized tribe, are not protected by DOJ exemptions.

The federal government currently recognizes 566 tribes, but hundreds of other tribes await recognition by the U.S. Bureau of Indian Affairs, a process which can take years if not decades. The distinction made between members of federally recognized tribes and those who are affiliated with non-federally recognized tribes is seen by many in the community as patently unfair, leaving a large gap between the rights enjoyed by both groups. The DOJ’s most recent eagle policy pronouncement further highlighted the distinctions being drawn and the resulting disparities in treatment.

Efforts to address the exclusion are beginning to mount as non-federally recognized tribes and individuals feel that their freedom of religion is being impinged. Representatives of several non-federally recognized tribes such as the Waccamaw Tribe of South Carolina and the Lumbee Tribe of North Carolina have spoken out, claiming that their right to possess eagle feathers should not be dependent on their recognition status. Additionally, previous to the DOJ clarification, Religious Freedom with Raptors (RFR), an advocacy group dedicated to improving the eagle feather law, authored proposed amendments to the federal eagle permit regulations under 50 CFR § 22, which would grant Native Americans not affiliated with federally recognized tribes the same rights as those of federally recognized tribes with respect to eagle feathers.

DaShanne Stokes, activist and former director of RFR, stated that efforts to gain support for the RFR amendments within Congress have not been as productive as hoped. “The eagle law is such a hot button issue, so divisive, and the majority of people who stand to benefit from changing it are geographically dispersed and have little influence, resources, or power on their side,” says Stokes. “In my experience, most people who want to change the law are so afraid that they don’t want to say or do anything out of fear of arrest.”

Additionally, efforts to change the law face a significant hurdle in light of the 10th Circuit’s decision in United States v. Wilgus, which held that the government is entitled to restrict eagle feathers and parts to members of federally recognized tribes. This decision likely served as support for the DOJ’s current position.

The October DOJ memo helped to clarify the rights of federally recognized tribes to use eagle and other migratory bird feathers and parts. However, it also exposed significant gaps in DOJ policy. Native American tribes have the requisite cultural sensitivity and knowledge to participate in the distribution process in order to better meet the needs of the community. However, as part of tribal self-determination and free religious practice, the rights of all those who identify as Native American should be considered.

Halie Geller is an attorney with Cultural Heritage Partners, PLLC, a law and government affairs firm serving clients in the cultural heritage, tribal, art, museum and historic preservation communities.