The 5th Circuit Court of Appeals ruling on August 20 is something for members of state-recognized tribes to celebrate.
In the ruling, the Court found that the U.S. government had failed to prove that denying Robert Soto, a member of the state-recognized Lipan Apache tribe, eagle feathers needed for his ministry advanced a compelling government interest. Soto had been arrested for having eagle feathers at a pow wow in Texas in 2006.
The Court also found that the government failed to prove that giving members of state-recognized tribes access to eagle feathers would in any way harm its relationship with federally-recognized tribes.
Under the current law, 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), only members of federally recognized tribes are allowed to obtain or possess eagle feathers and parts for religious or spiritual purposes. Others who are caught with eagle feathers without federal permits face imprisonment and fines of up to $250,000.
That’s what makes the Circuit Court’s decision a victory, but one that is far from complete. It is almost certain that the Department of Fish and Wildlife (USFWS) will appeal the Circuit Court’s decision.
That’s what happened in 2011 when U.S. District Judge Dee Benson ruled in US v. Wilgus (2009) that the way that the eagle law was enforced was not “the least restrictive means” for the government to advance its interests in protecting eagles. Benson’s findings would have allowed for the eagle feather permit system to be expanded to include non-Native Americans as well as members of state recognized tribes. But Benson’s decision was subsequently overturned.
Critics were quick to pounce on the 5th Circuit Court’s decision, presenting gross conjecture as fact. Recent articles by Angela Deines and Jonathan Stempel for example, claim that Court’s decision will make it harder to protect eagles.
The implication here is clear: protecting the rights of state-recognized tribes means hurting eagles.
This is a not so subtle way of saying that the needs and rights of state-recognized tribes should not be observed, that the only way to protect eagles while also allowing for a Native American religious exception is to limit feathers and parts to members of federally
The government has never given actual concrete evidence that expanding the permit system would necessarily harm eagle populations. It has only asserted such claims through unfounded conjecture.
I for one think it’s high time to recognize the rights of state-recognized tribes. Those who need eagle feathers and parts for prayer and ceremony to practice and preserve their ways of life deserve the right to do so.
And federally recognized tribes should support state tribes on this. After all, if the 1940s to 1960s Termination era is any indication, federally recognized tribes are by no means immune from the threat of losing their recognition status. During Termination, over 100 tribes had their federal recognition status terminated.
Had that happened today under the current eagle law, those tribes would have faced the same situation that state tribes now face. They would have had no access to eagles.
It happened before. You can bet it can happen again.
And no one is immune.
That’s why federal tribes need to stand behind state-recognized tribes and support their access to eagles. We need to expand the eagle law to include state-recognized tribes. Because when one tribe is prevented from practicing and preserving their ways of life, all tribes are prevented from practicing and preserving their ways of life.
DaShanne Stokes is a Lakota author, speaker, and commentator. From 2005 to 2008 he was the founder and director of Religious Freedom with Raptors, a political interest group dedicated to improving the eagle feather law while maintaining its protections for eagles and federally recognized tribes. Follow DaShanne on Twitter @DaShanneStokes.