Just ahead of Native American Heritage Month, the U.S. Department of Justice (DOJ) is issuing policies about a quintessential Native icon—the eagle—whose sacred and cultural uses, some contend, shouldn’t be under the government’s control at all, or if so, only marginally.
Nevertheless, rules clarifying American Indians’ use of eagle feathers and parts were issued on October 12 by the U.S. Attorney General’s office after more than a year of tribal meetings and consultation.
“A liaison—an Indian person who is a tribal member—would be in order rather than the government determining who gets the feathers and how they’re distributed,” said Antonio Kanip, Ute Indian Tribe of Fort Duchesne, Utah, who is a chief of the Bear Dance, a spring ceremony of the Ute nations. He does feel the government has a role in prosecuting those selling eagle feathers.
Kenny Frost, Sun Dance chief for the Southern Ute Indian Tribe, Ignacio, Colorado, said he doesn’t believe the government should be in charge of eagle feathers, but that it is the reality today.
“In the ideal world, it would be up to Native people [to distribute eagle feathers] because we’d know what to do and we only take what we need,” he said. But, he added, at present Native people are “kind of bound” by the system. He, too, agreed with the need to prosecute those who market eagle feathers or parts.
While DOJ officials stress that the rules mainly simplify existing complex issues, some changes may reflect a different perspective.
For example, if disapproved eagle practices occur, “the policy encourages prosecutors to consider whether particular cases would be more appropriately handled by tribal prosecutorial authorities,” a DOJ spokesman said. In addition, the DOJ is providing a joint federal/tribal training program next week in South Carolina on the enforcement of wildlife and other environmental laws.
Both Frost and Kanip talked about the need to streamline existing policy under which feathers are obtained by members of federally recognized Indian tribes from the National Eagle Repository near Denver, where lengthy delays are common and birds and their parts may be damaged or adversely affected by their time in storage and transit.
The DOJ memo’s inclusion of a potential tribal alternative to mainstream adjudication mirrors the transfer of a sacramental eagle-kill case on the Northern Arapaho reservation from federal to tribal court (United States of America v. Winslow Friday) but it likely would not address current intertribal issues between the Northern Arapaho and Eastern Shoshone, who share the same Wind River, Wyoming reservation yet disagree about whether eagles should be killed.
The policy released on Friday—described as “solely for the purpose of internal guidance” in a DOJ statement—doesn’t address or change the way in which the department handles cases of those who are not members of federally recognized tribes, including non-Indians or members of state-recognized tribes or other groups or organizations.
“The [DOJ] is committed to striking the right balance in enforcing our nation’s wildlife laws by respecting the cultural and religious practices of federally recognized Indian tribes with whom the United States shares a unique government-to-government relationship,” Attorney General Eric Holder said in the DOJ statement. The DOJ also noted that the policy statement was formulated to address tribal members’ uncertainty about some federal wildlife law enforcement efforts.
According to the newly issued rules, a member of a federally recognized tribe may generally possess eagle parts without a permit and engage in the following activities without being subject to prosecution:
- Possess, carry, use or wear the feathers or parts of federally protected birds
- Travel domestically with federally protected bird parts and, with required permits, travel internationally with them
- Pick up naturally molted or fallen feathers found in the wild, without disturbing federally protected birds or nests
- Give or loan federally protected bird parts to other members of federally recognized tribes, as long as it does not involve receiving compensation
- Exchange such bird parts with other members of federally recognized tribes, again without compensation
- Provide such bird parts to craftspersons who are members of federally recognized tribes to be fashioned into objects for eventual use in tribal religious or cultural activities
As described in a DOJ summary of tribal consultation, government control over eagles was called into question, recalling a statement by Harvey Spoonhunter, at the time the chairman of the Northern Arapaho Tribe, at a 2010 summit convened by the Colorado Commission of Indian Affairs. Spoonhunter asked attendees to consider that even during the Prohibition era, churches could use sacramental wine and “didn’t have to wait five years to get it like we do to get eagle feathers” from the FWS-run Eagle Repository near Denver and have to have a permit to practice religion. However, the DOJ said in current consultation that to ”move away from the permit system altogether” was outside the scope of DOJ’s policy.
Another controversial provision of the policy is reflected in the repeated use of the terms “members of federally recognized tribes” and the “unique government-to-government relationship,” a distinction to which some tribal officials and members objected. They offered a wide range of opinions, including calling for a CDIB or tribal membership ID, or both; for including all Indigenous Peoples in the U.S.; for including only those with DNA “proof,” and several others.
The DOJ said basing the “proposed policy on race or ethnicity, or on a claim or assessment of ‘legitimate’ religious need, would be inappropriate” and would diminish the supply of feathers and other parts available to members of federally recognized tribes, in turn doing a disservice to the government’s compelling interest in protecting the religion and culture of federally recognized tribes (as in United States v. Wilgus, 10th Circuit Court, 2011).
The memo issued by the DOJ covers all birds—not solely eagles—protected under federal law, including the Bald and Golden Eagle Protection Act; the Migratory Bird Treaty Act of 1918; the Lacey Act, which protects plants and wildlife from criminal acts, and the Endangered Species Act, as well as by executive orders and the Morton Policy, with which the DOJ policy now aligns. The Morton Policy is the Department of the Interior’s program for safeguarding protected birds, including outlawing their killing and the commercial use of their parts, crimes investigated by the Fish and Wildlife Service (FWS), BIA and DOJ officials.