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Eagle Feathers and U.S. Permit Process (Various Nations)

 
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Introduction

For ages numerous Native American peoples have used the feathers, bones, claws, and heads of eagles for religious and ceremonial purposes. Blessed eagle feathers and body parts are often prominent, even necessary, paraphernalia for ceremonial purification, prayer, dance, healing. The gifting of an eagle feather by an elder or spiritual leader can confer honor and blessing on an individual. Eagle feathers and bones are also densely symbolic. Ron Rader, a powwow dancer whose traditional garb includes feathers and parts of golden eagles said of the permit process: "It's the same as having to have a permit to carry a cross." (Los Angeles Times) This sentiment is echoed by many Native Americans of various Nations. As urban and agricultural encroachment and the industrialization of the North American continent threatened bald and golden eagle populations over the past century, the United States government has passed various laws restricting the hunting and possession of eagle parts, including feathers. These laws have placed a significant burden on Native American tribes as many of their religious practices depend on the use of eagle parts. Currently only members of federally recognized tribes are allowed to possess eagle parts and are only able to do so by obtaining permits from the federal government. Native Americans of non-recognized tribes and non-Native religious practitioners are not allowed to apply for permits to obtain eagle feathers. However, even those who are legally able to apply for a permit find the process to be overly burdensome to their free exercise rights. These groups have brought their cases before the law with mixed, but mostly negative, results.

Religious Significance of Eagle Feathers

It is well documented that for centuries Native communities across the continent have and continue to use eagle feathers and parts as part of various ceremonies and dances. The few select individuals who trapped eagles were greatly admired and eagle catching sites were regarded as sacred. Now, trapping of eagles is considered a federal offense. Eagle feathers are used in regalia for traditional dances and ceremonies. Eagle feathers and parts are often used to convey the sacredness and symbolism of the eagle itself to the wearer. Additionally, being given an eagle feather is considered a great honor and marks many important moments in life for young people. During a Lakota naming ceremony, an eagle feather is given to the person being named. Currently, many young people are awarded eagle feathers upon graduation from High School. Eagle feathers play a significant role in the modern "pow wow," with the traditional Grand Entry a way of showing respect for the feathers: Pow wows begin with a grand entry. An eagle staff bearer and flag attendants enter the arbor-or dance arena-followed by all the dancers who will compete and participate in the pow wow. Courtesy demands that everyone stand during the grand entry to show respect for the eagle feathers. Likewise, if an eagle feather falls from a dancer's headdress during the dancing, everything stops and the audience stands until the feather has been properly returned. According to legend, this tradition harkens back to a time when the Plains Indians were still following the path of the bison. During a large battle between two tribes, an eagle feather fell from the headdress of an invading warrior. The invaders fled, accidentally leaving the feather behind. The war chief stopped pursuit and told his warriors, "If these people are truly warriors, they will respect the feather and return to retrieve it."

Sure enough, the invaders returned that night to look for the feather. They were captured, blindfolded and taken to their enemy's camp, where rather than be put to death as they expected, they were treated to a feast and showered with gifts. The chief explained his behavior by saying, "Even though we are bitter enemies, the respect and meaning of the eagle feather is the same. We are all taught by the same Great Spirit and should respect his teaching." Today, modern tribes believe that if their ancestors could stop an entire war to retrieve an eagle feather, they should be able to stop a pow wow. Eagle feathers were often given to warriors after what was considered to be a brave act and were received only after intense preparation and fasting. Eagle feathers could only be earned. Eagle feather fans are also commonly used in ceremonies in conjunction with sage smoke to bless individuals and actions as well as to give thanks to the Creator. The eagle also figures prominently in many stories told by Native Americans and many noble qualities are attributed to the bird in stories used to teach to young people how to act. In the Lakota Creation Story, as told by the Lakota holy man Lame Deer, describes an eagle saving a Lakota girl from a flood that destroyed her people, and then making her his wife. The result of this union being the Lakota people. Clearly, the importance of eagles and eagle feathers to Native peoples is undisputed.

History

In 1918, the federal government passed the Migratory Bird Treaty Act of 1918 to fulfill international treaty obligations concerning the migratory birds, including eagles. This act prohibits the kill, capture, trading, selling, and receiving of migratory birds without a permit. Under this act permits are not restricted to only Native Americans. The restrictions placed on the taking and possessing of bald eagles under the Migratory Bird Treaty Act were not enough to protect the bald eagle population from becoming endangered. Illegal hunting for sport and to protect farms, pesticides, the loss of habitat, and the construction of high voltage power lines led to the rapid decline of the bald eagle population. In 1940, the government took action by passing the Bald Eagle Protection Act of 1940. This act prohibits the taking and possessing of bald eagles by any person, including Native Americans. However, the bald eagle population continued to decline after the passage of this act. Many ranchers and farmers continued to kill the eagles because they believed protecting their crops outweighed getting caught breaking this law. More ominous was the extensive use of the pesticide DDT in the 1950’s and 1960’s. Eventually, it was discovered that DDT remains birds which eat the insects sprayed with DDT and is concentrated as it moves up the food chain, eventually reaching raptors like eagles. Scientists discovered that in raptors DDT caused eggs to have soft shells, thus dramatically reducing reproduction. Notably, these threats to the existence of eagle species in the U.S. did not come from the traditional practices of Native Americans. The government responded with the Bald and Golden Eagle Protection Act in 1962, which extended the prohibition on the take, transport, sale, barter, trade, import and export, and possession of bald to golden eagles as well. The government realized that the passage of this act would severely impinge on the religious practices of many Native American tribes, for whom the use of eagle parts is essential to many ceremonies. In order to allow Native Americans to be able to continue to include both bald and golden eagle parts in their religious ceremonies, the government made room for certain exemptions. Under this act members of federally recognized tribes can apply for a permit that would allow them to possess eagle parts for religious ceremonies. It is important to note that the permit does not allow Native Americans to hunt or capture eagles, which was at one time a sanctified and highly regulated process among many native peoples. While Indians may apply to the US Fish and Wildlife Service to kill an eagle, the Secretary of the Interior must personally approve this action and according to one source, only one such permit has ever been issued. Instead, the permit allows only Native Americans from federally recognized tribes to request the shipment of eagle parts from the National Eagle Repository in Denver, Colorado. This is a tedious and highly exclusive process; there are currently 5000 requests per year for the 1000 eagles that the repository receives each year. However, the permit does not allow the Native American to use the eagle feathers in ways that are allowed culturally, such as in barter, or as gifts to non-Native Americans, or even bestowed to non-Native Americans in ceremonies.

Legislation

Since the passage of the BGEPA, Native Americans and others have challenged its infringements on traditional indigenous practices. Native Americans on reservations have gone to court to determine if the BGEPA abrogates treaties made with the federal government that allowed for Native Americans on reservations to capture and kill eagles on the reservation. After several conflicting decisions at the district court level, the Supreme Court agreed to hear case and finally decided in United States v. Dion that BGEPA does abrogate all prior treaties allowing for the killing and possession of eagles. More recently, members of the many Native American tribes that are not recognized by the federal government have appealed to the court that they should be allowed to apply for permits to obtain eagle parts. One recent incident in Texas even documents a Federal Fish and Wildlife agents interrupting a powwow to inquire about the legality of, and even confiscating, eagle feathers from non-recognized Native Americans. Native Americans in this position have made claims under the First Amendment of the Constitution and under the Religious Freedom Restoration Act of 1993, with which Congress sought to restore the placing of burden on government to demonstrate its "compelling state interest" and its use of "least restrictive means" in matters that infringe on the free exercise of religion. The test demands that the court first determine whether or not the issue at hand is indeed a religious one. This can prove difficult in cases involving Native American religious traditions, as many Native Americans do not always distinguish between their religion, their way of life, and their livelihood. Native Americans have been forced to adopt Western religious terms in order to define their ceremonies to judges and courts. In the cases on eagle feathers the issue has not been about whether or not a certain practice involving eagle feathers should be considered a religious belief under RFRA, rather one of the issues has been the list of “approved” ceremonies on the government’s permit. If the practitioner’s ceremony on the list, eagle feathers are approved for use in the ceremony, if not, the government does not deem eagle feathers necessary for the ceremony. The central conflict has become the permit process itself, particularly its exclusion of non-Native Americans and Native Americans in non-recognized tribes. The next step under RFRA is to determine if the government is putting a substantial burden on this religious belief. The permit process has generally been seen by courts as a substantial burden. The third step is to determine whether or not the government has a “compelling interest” in the issue at hand. In the case of eagle feathers, the courts have always stated that the government has a compelling interest in the protection of the wildlife for the public good. The final step is to determine if the action of the government is the least restrictive means for furthering the interest of the government. Native Americans and non-Natives have had mixed results in the courts with this final step.

Court Cases

In 1996, the first significant case was tried that questioned the permit process. In U.S. v. Lundquist a federal court determined that restricting the permit process to Native Americans of federally recognized tribes was indeed a substantial burden on the defendant’s religious practices. However, the court decided that the limitations in the permit process were indeed the least restrictive means for the government’s interests. The court cited the government’s compelling interests as protecting eagle populations and preserving Native American cultures. The permit process was again challenged in 1997, in U.S. v. Hugs. In this case the defendant was a member of a federally recognized Native American tribe. He chose to hunt, trade, and possess eagle feathers on an Indian reservation without a permit. Hugs claimed that the permit process was burdensome to even those who were able to apply for it. The court decided that he had no standing to challenge the permit process, as he did not apply for one. More importantly, the court determined that the BGEPA passed the test put forth by RFRA, meaning it was still considered the least restrictive means for protecting the government’s interests. In 2000, the issue was again brought to court in Gibson v. Babbitt. Harvey Gibson applied for a permit to obtain eagle parts but was denied because although he is Native American, his tribe, the Muscogee (Creek) tribe, is not federally recognized. The majority of the Muscogee were forcibly removed to Indian Territory in Oklahoma in the early 19th century. However, a small number remained east of the Mississippi, and without federal recognition. On March 21, 1973, the Florida branch of the Muscogee East of the Mississippi, the tribe of which Gibson is a member, filed for recognized status, on December 21, 1981, that recognition was denied, and the Muscogee in Florida remained unrecognized. Gibson brought suit claiming that the permit process denied his religious rights under the First Amendment and RFRA. The First Amendment claims were thrown out, and the court focused again on the RFRA. The judge acknowledged both Gibson’s sincere religious belief and the fact that he was Native American. The judge even went so far as to acknowledgement that Harvey Gibson’s use of turkey feathers instead of eagle feathers was, "akin to using colored water for sacramental wine." However, the court again found in favor of the government, stating that the government had three valid compelling interests to limit the permit process. The three interests were: the enactment of BGEPA, preservation of Native American cultures under the federal government's trust responsibility, and treaty obligations made to federally recognized tribes. A significant contradicting decision was made in the 2002 case U.S. v. Hardman. The case incorporated the cases of three claimants, two non-Native Americans and one Native American of a non-recognized tribe. All three cases had previously been heard in the 10th Circuit, and in all of them permit process was upheld, but the 10th Circuit elected to rehear the cases en banc, which means all the circuit judges sitting together, in order to examine more deliberately whether the permitting process would withstand a review based on RFRA. The two non Native Americans, Raymond Hardman and Samuel R. Wilgus, had not made claims under RFRA in their initial cases but instead had made claims under the First Amendment. The court decided in this retrial that the defendants and the government did not have proper time to develop cases under RFRA, so the cases were remanded to a lower court. Because the third claimant, Joselius Saenz, was Native American, his initial case had involved RFRA. The court decided that in the case of Saenz, the government failed the compelling interest test. The government argued its interests were protecting eagle populations and preserving Native American culture. The decision was based on the fact that expanding the permit pool to include non-recognized Native Americans would not have an effect on the eagle populations because it was only allowing more people to apply for eagle parts. Also, allowing Native Americans of non-recognized tribes to apply would not interfere with the government’s interest in protecting Native American culture because the permit process would still be limited to Native Americans in general. In 2003, the 9th Circuit decided this issue differently than the 10th Circuit. In U.S. v. Antoine the 9th Circuit Court of Appeals decided that limiting permits to members of federally recognized tribes was the least restrictive means. Antoine was a member of a Native American tribe in Canada who had brought eagle feathers into the United States. He claimed that the government’s interest in protecting eagle populations was no longer valid because there have been proposals to take the eagle off the endangered species list. The court quickly dismissed this claim because the eagle had not yet been removed from the list; it had merely been proposed. Until the eagle is removed from the endangered species act, the opinion stated, the government’s interest in protecting eagle populations remains valid. Further, the 9th Circuit Court did not believe that applying RFRA to the permit process should result in non-recognized Native Americans being included in the process (U.S. v. Antoine). The court stated that allowing non-recognized Native Americans to be included in the permit process would put a burden on the practice of religious beliefs of others (U.S. v. Antoine). Most recently, on June 5, 2006 the Northern Arapaho tribe filed a brief in the case of Winslow Friday, a member of a federally recognized tribe, who was charged with shooting a bald eagle without a permit in March of 2005. The case was heard in a U.S. District in Wyoming and decided in favor of Friday on November 24, 2006, the judge writing, "Although the government professes respect and accommodation of the religious practices of Native Americans, its actions show callous indifference to such practices. It is clear to this court that the government has no intention of accommodating the religious beliefs of Native Americans except on its own terms and in its own good time." Currently, no permit exists for the taking of an eagle by even a registered member of a Native American Tribe. The decision is particularly significant because the court did not decide that the defendant was not guilty because he did not commit the crime, but rather because the Federal Government was not fulfilling its obligations to accomodate the religious traditions of Native practitioners. Federal officials filed noticed in November that they planned to appeal the decision.

The Future

Winslow Friday's victory is important as it may precipitate an alteration of the permit process for obtaining eagle parts. Currently, the killing of eagle's is prohibited, even by most Native American tribe members, even for ceremonial purposes. The appeal is to be heard in the federal appeals court in Denver. Additionally, U.S. v. Antoine is the most recent case dealing with the permit process for non-Native practioners or members of non-recognized tribes. As part of the decision in U.S. v. Hardman, both Hardman and Wilgus are able to return their argument to the 10th Circuit Court of Appeals. Some articles have stated that Hardman and Wilgus will again be included in one case along with Christopher and Faye Beath, also non-Native Americans. It is not known when this case will be heard, but it will seek to determine if non Native Americans should be included in the permit process. No other Native Americans of non-recognized tribes have gone to court over the issue since Antoine in 2003. Drafted by Allison Dwyer and edited by Nate Chappelle Updated on November 7, 2011