Think your religious freedom is protected? Think again. As many people across Indian country are aware, American Indians are the only ethnic group in the United States that require a federal permit for religious freedom. The law upholding this is commonly referred to as the ''eagle feather law,'' referring to Title 50, Part 22 of the U.S. Code of Federal Regulations (50 CFR 22), and it governs the possession and use of eagle feathers.
Many people don't know how problematic the eagle feather law really is. To possess eagle feathers, citizens must be able to legally prove their ethnicity and only individuals of certifiable American Indian ancestry enrolled in a federally recognized tribe are authorized to obtain permits. Those caught without permits face imprisonment and fines up to $25,000 - for practicing their religion.
But there's a problem. Falsification of state records in what has been termed ''paper genocide'' has artificially decreased the true number of indigenous people in the United States and terminated the ''official'' existence of many tribes. Consequently, many Native Americans cannot be found on the Dawes Rolls (the major determinant of tribal enrollment and application for an eagle permit) and many tribes are unable to win federal recognition. As a result, many people lose access to eagles and the ability to practice and preserve traditional customs otherwise protected for ''recognized'' tribes and their members.
There are consequences to breaking these rules. In one case, Robert Soto, a Lipan Apache, had his feathers confiscated at a Texas pow wow in March 2006. As a member of a non-federally recognized tribe, Soto did not possess an eagle permit. Soto remains in a legal battle for the return of his feathers.
In another case last year, Winslow Friday, a member of the Northern Arapaho Tribe, was arrested for shooting a bald eagle without a permit. Friday needed the feathers for use in his tribe's Sun Dance, for which only ''clean eagles'' (that had not died by electrocution or vehicle collision) could be used. Speaking in his defense, the tribe argued that the taking of eagles is a protected act of religious belief and the tribe had repeatedly attempted to obtain a permit from the U.S. Fish and Wildlife Service. In U.S. v. Friday, the court dismissed the case - a victory for tribal sovereignty - but federal prosecutors are determined to appeal the decision.
In 1996, Raymond Hardman, a Caucasian living in Utah, was arrested for possessing eagle feathers given to him by a Hopi tribal member. Hardman's wife and children were members of the federally recognized S'Kallum Tribe. In 1993 Hardman's son's godfather died and Hardman transported the body to Arizona so that appropriate services could be performed. As part of the cleansing ritual, a Hopi religious leader gave Hardman a bundle of prayer feathers, which included several eagle feathers, to be kept in the truck that had transported the deceased body.
After returning home, Hardman contacted the Utah Division of Wildlife to obtain a permit to keep the feathers. However, he was informed that he would not be allowed to apply because he was not a member of a federally recognized tribe. Hardman later separated from his wife, after which she informed Ute tribal officials that he was in possession of the feathers. Hardman was found guilty of violating the Migratory Bird Treaty Act, even though there was no question that his religious beliefs were sincerely held. Hardman's case remains on appeal.
Of course, many people believe only enrolled tribal members should be allowed to possess eagle feathers. While this feeling is easily understood after centuries of genocide and marginalization of Native people in American society, the value for blood quanta and tribal enrollment is of relatively recent import. Historically, many tribes and nations shared their spiritual practices with other tribes and non-Native people have been welcomed into indigenous familial and spiritual lives since the early 1500s, including runaway slaves and historical figures such as Daniel Boone, Gen. Sam Houston, Gov. Gray Davis and former Secretary of the Interior Bruce Babbitt.
Now consider the irony. Tribal enrollment wasn't so heavily valued until the passage of the 1887 Dawes Act (Dawes Rolls), which was instituted to assimilate indigenous people into an Anglo value system and seize tribal lands. The Dawes Rolls became a major criterion for tribal enrollment and helped form the basis of CDIB (Certificate of Degree of Indian Blood) numbers used to determine tribal membership and eligibility for eagle permits.
The problems of the eagle feather law are immeasurable. The law creates a value system for bloodlines that creates and sustains in-fighting that is rampantly tearing apart families and cultural ties on many reservations. The law creates racial barriers for those who have or wish to adopt non-Natives into Native families. The law also makes it impossible for tribes that remain officially ''unrecognized'' since the 1950s ''termination era'' to preserve traditional customs.
Like many people, I believe it's time for new and improved eagle feather law. It was for this reason that I founded Religious Freedom with Raptors, dedicated to changing the law. RFR was founded on Feb. 27, 2006, to coincide with the occupation of Wounded Knee in 1973a major historical event in which Native and non-Native people stood together and in a unified voice demanded fair treatment from the governmentan event forever symbolic of racial and cultural unity in support of indigenous rights.
While there are many forms this new law might take, it is critical that we replace the race requirement of tribal enrollment. One promising option would be the creation of a Certificate of Religious Participation endorsed by a tribal member or spiritual leader. This certificate would replace the tribal enrollment requirement while ensuring that only approved participants in bona fide Native American customs are eligible to receive eagle permits. This allows for direct oversight of eagle feathers to ensure that feathers and ceremonies will not be abused.
The certificate would also give legal protection to those Native Americans who wish to exercise their right to include others of their choosing in traditional customs involving eagle feathers. The certificate would also ensure that applications for eagles are reviewed on a case-by-case basis - ensuring that applicants are judged on factors that have traditionally governed eagle feather distribution, such as personal merit and individual character - rather than skin color.
The time for a new eagle feather law is now. Let it be one in which we stand united around traditional indigenous values and say in one voice that we will not be undone by our skin color. Let that be our legacy.
DaShanne Stokes, M.A., is director of the public interest advocacy group, Religious Freedom with Raptors (www.geocities.com/eaglefeatherlaw).