Two bald eagles can be killed for use in the Northern Arapaho Tribe’s Sun Dance this summer, according to the Fish and Wildlife Service (FWS), but the issuance of the fatal-take permit was done “after careful consideration” and is a “one-time take,” the agency said in a prepared statement.
According to a report at CNN, the issuance of the permit has already stirred controversy, with some non-Indians worried that these two takes will lead to many more. "How stupid can that be?" said Robert Holden, deputy director of the National Congress of American Indians. "It's a religion. It's what we do. We're more concerned about the eagle population than any culture in this Western Hemisphere. Why would we want to kill all the eagles?"
The CNN article also quoted Matt Hogan of the Fish and Wildlife Service, who said the two takes "will not in any way jeopardize the status of the eagle population."
The permit was issued under the Bald and Golden Eagle Protection Act (Act), the FWS said, noting that in recent decades the agency “has issued a very modest number of permits for the take of bald or golden eagles to Native Americans for use as part of religious ceremonies, but only when the religious needs cannot be met by the National Eagle Repository.”
The permit, issued last week, followed lengthy litigation over restrictions placed on the Tribe’s rights under the Religious Freedom and Restoration Act (RFRA) and tribal traditional law as balanced against the federal government’s sometimes-conflicting interest in maintaining both federally recognized tribes’ religious practices and healthy eagle populations.
The FWS is focused on preventing the deaths of birds, but the agency “also must comply with other laws and obligations, including the [RFRA], the Free Exercise clause of the U.S. Constitution, and the federal government’s trust responsibilities to Native American tribes,” the statement said.
Bald eagles are protected from deliberate killing and from commercial trade in their bodies or parts under the Act. Members of federally recognized tribes may receive feathers from relatives or others or they can apply for a permit to obtain feathers or whole birds through the FWS’ Repository near Denver, where 3- to 4-year delays are not uncommon.
A member of the Northern Arapaho Council of Elders noted that killing an eagle for the Sun Dance was a matter of religious freedom that could not be replaced by obtaining an eagle carcass from the Repository because the birds are sometimes decomposed.
Up to 2008, in more than 20 years of the FWS’ permit program, no individual tribal member had applied for or received a fatal-take permit, but permits had been issued to three southwestern tribes, according to court records.
The FWS approval followed years of contention after Winslow Friday, who lived on the Wind River Reservation in Wyoming, shot a bald eagle in 2005 for use in the Tribe’s annual Sun Dance.
In United States v. Friday, he was acquitted in U.S. District Court for the District of Wyoming (District Court) of violating the Act but, on appeal by the Department of Justice (Justice) to the U.S. 10th Circuit Court of Appeals, the charges were reinstated and the case was remanded to the lower court. The Tribe unsuccessfully appealed to the U.S. Supreme Court and the District Court referred the matter to tribal court, where Friday paid a $2,500 fine and received a suspension of his tribal hunting rights for one year.
Last November, the Tribe in Northern Arapaho Tribe et al. v. United States Fish and Wildlife Service et al. contended in District Court that the agency violated the Administrative Procedures Act in its restrictive policy concerning permits for tribal religious practices.
The issuance of the two permits to the Tribe occurred in the context of a plan by FWS and Justice to align uniform practices under an existing policy—the “Morton Policy” of 1975—that calls for tribal input and a review of federal regulations “with probable changes where the legitimate needs of American Indians can be legally recognized without harming federally protected birds.”
The policy also cites the possibility of tribal ordinances to conserve federally protected birds and shared tribal/federal management and enforcement of the laws.