The Becket Fund for Religious Liberty: Government infiltrates native pow wow, takes eagle feathers

Eagle feather petition draws intense interest in Indian Country

A petition that could lead to major changes in the way eagle feathers are eagle parts are handled by the federal government has divided Indian Country as the Trump administration closes the comment period on the controversial proposal.

The eagle is central to many tribal traditions but non-Indian exploitation nearly drove the American symbol to extinction. As a result, use of feathers and parts is strictly regulated under federal law, with citizens of federally recognized tribes able to possess and transport them as part of their religious practices.

Indigenous people who belong to non-recognized nations or to terminated tribes, those who are unable to meet tribal citizenship requirements, or even the ones who choose not to become enrolled, have long been hindered by the system. A petition under review in Washington, D.C., could change that by opening the door for them to obtain eagle feathers and parts just like other Native Americans.

“After fighting in court for almost a decade to defend our centuries-old religious practices, I am thankful that Native Americans are one step closer to freely worshipping with eagle feathers,” said Robert Soto, a spiritual leader and vice chairman of the Lipan Apache Tribe, whose status is not recognized by the U.S.

“It is time for the government to recognize that feathers are a gift of the Creator, not the government, and Native Americans deserve lasting legal protections that can’t be revoked at the government’s whim," said Soto, who serves as pastor of the McAllen Grace Brethren Church in Texas.

Robert Soto blesses eagle feathers that were returned to him after being seized by a federal agent. Photo: Becket Fund for Religious Liberty

But the End the Feather Ban campaign is not drawing universal acclaim. After the petition was released at the end of April -- it's not yet a formal rule at this point -- other tribal religious practitioners and advocates started mobilizing opposition in Indian Country.

The National Council of Native American Churches, which advocates on behalf of more than 100,000 members of Native American Church groups throughout the United States, is among the most prominent critics. The group believes the petition, if it moves forward, will lead to an increase in fraudulent activities by those with no real connections to tribal traditions and will make it even harder for Native people to obtain eagle feathers and eagle parts from the federal government's overburdened repository.

"People will fake religious beliefs so that they can obtain feathers for reasons of profit, curiosity, 'playing Indian' at 'Pocahontas pageants,' or other disingenuous reasons," the council said in public comments that were presented to the U.S. Fish and Wildlife Service, the federal agency handling the petition, during a listening session last month.

Members of the Native American Church, whose practices depend not just on access to eagle feathers and eagle parts but to peyote, a sacrament that is also regulated by the government, aren't alone in expressing concern. The Confederated Tribes of the Umatilla Indian Reservation said the petition undermines the federal trust relationship and will create even longer wait times for items from the National Eagle Repository, or NER, a facility in Colorado with a wait list of thousands.

"The foundation of the current regulatory exemption for tribes and tribal members is the government-to-government relationship between the United States and federally recognized tribes," Gary Burke, the chair of the Umatilla board of trustees, said in a comment submitted July 1. "To expand this exemption to individuals who are not members of federally recognized tribes would be disastrous for tribal members who rely upon the NER for access to eagle feathers."

The Becket Fund for Religious Liberty: Eagle feathers returned to Lipan Apache tribal leader

So far, nearly 450 comments have been submitted in response to the petition. More than 150 of them came as the Fish and Wildlife Service agreed to extend the comment period through Tuesday, an indication of the efforts that opposing groups have put into getting the word out in Indian Country.

The comments tend to fall into two categories. Federally recognized tribes and citizens of recognized nations are concerned about non-Indian abuse of eagles while those who belong to non-recognized groups believe moving forward with the petition will eliminate the barriers -- including criminal prosecution -- they face in practicing their traditions.

"As a member of The Texas Band Of Yaqui Indians who believes in religious freedom for Native Americans, I support this proposal to provide lasting protection for the religious use of federally protected eagle feathers," Fernando Hurtado Jr. wrote in a comment submitted June 28, before the original comment period was due to close.

Five years ago, Robert Soto and the McAllen Grace Brethren Church secured a major legal victory when the 5th Circuit Court of Appeals held that the existing system of prohibiting citizens of non-recognized tribes from possessing eagle feathers and parts was not legally justified. The pastor was able to reclaim his regalia, which contained eagle feathers and had been seized by an undercover U.S. Fish and Wildlife agent during a powwow in March 2006.

A settlement reached a year later required the agency to accept Soto's petition and consider changing existing regulations governing eagle feathers and eagle parts. The settlement further called on the government to make a decision on the petition "within 2 years of receipt.'

According to a July 2 notice published in the Federal Register, the petition was received in July 2018. That gives the agency till sometime in July 2020 decide whether the objections raised by recognized tribes and their citizens outweigh other Indigenous voices.

The timing is crucial because the June 2016 settlement, as entered into court, expires in five years, or in June 2021. If it lapses without changes in existing regulations, the Lipan Apache people who are able to possess eagle feathers and eagle parts and submit applications to the National Eagle Repository will lose their abilities and rights under the agreement.

Should the Fish and Wildlife Service, which is part of the Department of the Interior, move forward with the petition, a formal rule will be proposed. Such an action would trigger more public comment.

"Any changes to existing rules will be subject to a public comment period, and tribal consultation," an April 30 notice in the Federal Register stressed.

Soto isn't the only Indigenous person who has successfully challenged the existing system. In 2001, the 10th Circuit Court of Appeals held that the government could not deny Joseluis Saenz, who belongs to the Chiricahua Apache Tribe in neighboring New Mexico, the ability to possess eagle feathers. His eagle items, which had been seized, were returned him and the government was ordered to pay him $50,000 in legal fees.

Note: Thumbnail photo from The Becket Fund for Religious Liberty.

Members and friends, The Dept of Interior Fish & Wildlife has decided to extend the comment period on changing the Eagle...

Posted by Lipan Apache Tribe: Tribal Council Page on Tuesday, July 2, 2019

Federal Register Notices
Bald and Golden Eagle Protection Act and Migratory Bird Treaty Act; Religious Use of Feathers (April 30, 2019)
Bald and Golden Eagle Protection Act and Migratory Bird Treaty Act; Religious Use of Feathers; Extension of Comment Period (July 2, 2019)

Department of Justice Policy
Memorandum: Possession or Use of the Feathers or Other Parts of Federally Protected Birds for Tribal Cultural and Religious Purposes (October 12, 2012

5th Circuit Court of Appeals Decision
McAllen Grace Brethren Church v. Salazar (August 20, 2014)

Join the Conversation

Related Stories
Robert Soto: Lipan Apache Tribe wins long fight for eagle feathers (July 8, 2016)
Spiritual leader of Lipan Apache Tribe back in court over feathers (May 28, 2015)
Non-recognized tribe in Texas hails ruling in eagle feather case (August 26, 2014)
Trending in News
More Headlines