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Historical aspects
As early as the 1500s, escaped slaves, whites and other non-indigenous people were able to participate in indigenous religious customs (including the use and possession of eagle feathers) and join and be accepted as full tribal members of different tribes. The list of tribal adoptees includes many historical and notable figures, including Daniel Boone, Kevin Costner, former California Governor Gray Davis, Montana Governor Brian Schweitzer, and former Secretary of the Interior and Arizona Governor Bruce Babbitt. (11, 13, 17, 22, 25, 26, 32, 36, 40, 42, 43, 60, 61)
Constitutionality
The constitutionality of the eagle feather law has often been called into question due to the First Amendment (1791) prohibition of laws that affect the establishment or free practice of religion:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…"
The law’s constitutionality has also been subject to extensive criticism on grounds that the law creates racial preferences and racial segregation by denying religious freedom in the use of eagle feathers due to an individual’s race or ethnicity. (4, 5, 35, 38, 39, 43, 44, 45, 52, 53, 54, 55, 56, 57)
Effects on religious freedom
The effects of the eagle feather law on religious freedom have been an ongoing matter of contention in the general Native American community due to the incomplete legal protections within the present law. While legal protections of eagle possession are afforded members of federally recognized tribes, there are numerous Native Americans who are forbidden from possessing eagle feathers because they are members of non-federally recognized tribes. (43, 45)
Individuals of Native American ancestry who are unable to prove their ancestry often cite "paper genocide," the historical falsification of state records in which many Native Americans were recorded as "colored" or "other" in state and census records, as having artificially decreased the true number of indigenous people in the U.S. and terminated the "official" existence of many tribes. Consequently, many Native Americans cannot be found on the Dawes Rolls, many Native Americans are unable to prove their ethnicity, and many tribes are unable to win state or federal recognition. (43, 45)
Native Americans and non-Native Americans frequently contest the value and validity of the eagle feather law on grounds of its racial preferences and infringements on tribal sovereignty. The law does not allow Native Americans to give eagle feathers to non-Native Americans, a custom commonly practiced today. Many non-Native Americans have been adopted into Native American families, made tribal members and given eagle feathers. Many Indians do not have permits.(43, 45)
Various controversies have surrounded the recipients of eagle feathers. For example Senator and former First Lady Hillary Rodham Clinton gained national media attention when she was given a dream catcher adorned with eagle feathers by Clinton supporter Peggy A. Bargon in 1994. An investigation found that Bargon was selling migratory bird feathers and Bargon later plead guilty to the misdemeanor of violating Lacey Act and Bald Eagle protection Act and was fined $1,200. Clinton’s dreamcatcher was later turned over to agents from the USFWS by the White House. Ms. Bargon was later pardoned by outgoing President Bill Clinton. (19)
Eagle feather controversy
The eagle feather controversy is an ongoing debate over the criteria of ownership and possession of eagle feathers and parts based on race or ethnicity and Native American tribal membership.
There have been several legal challenges to the eagle feather law in which the law’s constitutionality and effects of racial segregation and racial preferences have been called into question.
Presently there are a number of Native and non-Native American individuals and organizations dedicated to amending the language of the law to allow Native American tribes and tribal members greater opportunity to include select non-Native Americans as acceptable owners of eagles feathers for religious and spiritual use.
Typical reasons given for contesting changes to the eagle feather law include:
- The eagle feather law is the only legal protection of Native American spirituality;
- Eagle supplies are limited. Increasing number of people who can have them may make feathers more scarce;
Typical reasons given in support of amending the eagle feather law include:
- Eagle feather laws impose racial preferences & segregation not traditionally found amongst Native American societies;
- The race requirement of tribal enrollment to possess eagles undermines tribal sovereignty rights to fully welcome and include others in tribal customs involving eagle feathers, and in so doing harms the preservation of traditional values and practices woven into indigenous societies that have welcomed non-Native Americans for centuries;
- Restricting access to religious objects on the basis of ethnicity promotes the belief that unequal protection of civil rights is acceptable--that laws do not have to be applied equally to all races;
- Eagle permit certification restrictions based on race impede the ability of people with Native American ancestry, but who may be unable to prove their ancestry, from exploring their heritage;
- Many Native American people have given feathers to non-Native Americans who have been deemed to have earned the feathers;
- Forbidding religious participation on the basis of race encourages those who are approved to participate in Native American customs, but who are unable to obtain an eagle feathers through existing federal channels, to break the law in order to follow their beliefs;
- Eagle laws promote unequal access to eagle feathers as religious objects;
- The law may encourage eagle poaching by not providing a legally protected avenue of acquiring eagles to those who are approved to participate in Native American customs but who are not able to become enrolled in a federally recognized tribe;
- Eagle laws forbid people from fully participating in bona fide Native American religions;
- The eagle feather law instills artificial values on race, blood quantum and certifiable ancestry;
- The law harms Native American families and individuals who have adopted or wish to adopt or welcome non-Native Americans into their families and spiritual practices;
- Granting access to eagle feathers for approved participants of bona fide Native American customs may actually help in raptor conservation as this may translate into more people who revere raptors and who will want to protect them;
- Removing racial requirements from 50 CFR 22 will enable all U.S. citizen to apply for feathers to the National Eagle Repository, overseen by the United States Fish and Wildlife Service. This would extend the ability of government-regulated programs and agencies to better protect raptors by decreasing the appeal and profitability of raptor poaching and trafficking;
(References for this section include: 4, 5, 7, 8, 10, 12, 15, 16, 28, 30, 31, 33, 35, 38, 39, 43, 44, 45, 52, 53, 54, 55, 56, 57, 60)
See also
- Human Rights
- Bald Eagle
- Golden Eagle
- Wildlife Conservation
- Civil Rights
- Native Americans in the United States
- United States Constitution
References
1. 59 F.R. 22953. Policy Concerning Distribution of Eagle Feathers for Native American Religious
2. American Indian Religious Freedom Act (1978)
3. American Indian Religious Freedom Act (1994)
4. Associated Press. 1999. "Eagle Feathers Debated." The Las Vegas Review Journal. Retrieved July 3, 2006 from http://www.lvrj.com/cgi-bin/printable.cgi?/lvrj_home/1999/Aug-12-Thu-1999/news/11734182.html
5. Associated Press. 2001. "Eagle-feather disputes to get hearing before full appeals court." Retrieved July 3, 2006 from http://www.firstamendmentcenter.org/news.aspx?id=4742
6. Associated Press. 2004. Interior Ordered to Pay Legal Fees Over Seizure of Eagle Feathers. June 9. Retrieved November 21, 2007 from: http://www.hocakworak.com/archive/2004/wl_2004_06_09/HW-060409-16.htm
7. Associated Press. 2002. "Native American gets ok to use eagle feathers in religious practices." August 6. Retrieved November 21, 2007 from: http://www.freedomforum.org/templates/document.asp?documentID=16684
8. Associated Press. 2004. "Residents fight to use eagle feathers." December 8. Retrieved November 21, 2007 from: http://www.wwrn.org/article.php?idd=4949&sec=73&cont=6
9. Bald and Golden Eagle Protection Act 16 U.S.C. 668a-d (1962)
10. Bodzin, Steven. 2005. "A Troubling Chapter in the Bald Eagle's Success Story." The Los Angeles Times
11. Bonner, T.D., The Life and Adventures of James P. Beckwourth. University of Nebraska Press, Lincoln, 1972.
12. Boradiansky, Tina S. 1990. Conflicting Values: The Religious Killing of Federally Protected Wildlife
13. Brulte, James. L. 1999. Senate Republican Caucus Daily Briefing. Sept. 9. Retrieved November 1, 2007 from: http://www.sen.ca.gov/ftp/sen/GOP/DAILY_BRIEFINGS/DB990909.HTM
14. Chicago Tribune. 2007. Bald Eagle v. Freedom of Religion on Wyoming Indian Reservation. January 31. Retrieved November 21, 2007 from: http://www.constitutioncenter.org/education/TeachingwithCurrentEvents/ConstitutionNewswire/17236.shtml
15. Cook, Stephen. 2003. Feather Law. Retrieved August 6, 2006 from: http://www.pequotmuseum.org/Home/CrossPaths/CrossPathsSpring2003/FeatherLaw.htm
16. DeMeo, Antonia M. 1995. Access to Eagles and Eagle Parts: Environmental Protection v. Native American Free Exercise of Religion
17. Drimmer, Frederick. Captured by the Indians : 15 Firsthand Accounts, 1750-1870 (1985) Dover Publications
18. Electronic Code of Federal Regulations (e-CFR), Title 50: Wildlife and Fisheries PART 22—EAGLE PERMITS
19. Ellis, Kevin. 2001. Unprecedented Presidential Pardon!
20. Endangered Species Act (1973).
21. Farquhar, Brodie. 2006. "Tribal religion trumps eagle protection." High Country News, November 13. Retrieved November 21, 2007 from: http://www.hcn.org/servlets/hcn.Article?article_id=16679
22. Gladue, Yvonne. 2003. Patch Adams Named Honorary Chief at Pow Wow. Alberta Sweetgrass, July 7. Retrieved August 6, 2006 from: http://www.ammsa.com/sweetgrass/topnews-July-2003.html#anchor12378402
23. Harjo, Susan S. 2003 "Harjo: American Indian Religious Freedom Act at 25." Indian Country Today. August 01.
24. Horwich, Jeff. 2001. How Indian are you?
25. Hull, Michael. 2000. "Sun Dancing: A Spiritual Journey on the Red Road." Inner Traditions International, Rochester, VT.
26. Katz, W.L. 1986. Black Indians: A Hidden Heritage. Aladdin Paperbakcs: New York, N.Y.
27. Kracht, Benjamin R. 1994. "Kiowa Powwows: Continuity in Ritual Practice." American Indian Quarterly, Vol. 18, No. 3., pp. 321-348.
28. KRGV, 2006. "Eagle Feathers Confiscated." Retrieved July 3, 2006 from http://www.newschannel5.tv/2006/3/30/7039/Eagle-feathers-confiscated-
29. The Lacey Act (1900).
30. Lieberman, Stuart. "Not all religious activity at home is legally protected." Retrieved November 21, 2007 from: http://www.ired.com/news/lieberman/010826.htm
31. Livesay, Nora. 2005. "Understanding the History of Tribal Enrollment." American Indian Policy Center, Retrieved March 10, 2005 from http://www.airpi.org/pubs/enroll.html
32. Lodge, David. 1997. Daniel Boone. Retrieved August 6, 2006 from: http://www.shelbycountyhistory.org/schs/indians/17761783dboone.htm
33. Melmer, David. 2000. "Dialogue opens on Black Indians in Indian country." Indian Country Today. Retrieved July 1, 2006 from http://www.indiancountry.com/content.cfm?id=531
34. Migratory Bird Treaty Act (1918). 16 U.S.C. 703-712
35. Murtaugh, Elizabeth. 2001. "Man Charged with Violating Bald Eagle Act." Missoulian. October 23. Retrieved November 21, 2007 from: http://www.hocakworak.com/archive/2004/wl_2004_06_09/HW-060409-16.htm
36. Negral, Ory M. 1980. Houston: city of Destiny. New York, Macmillian Publishing Co.
37. Religious Freedom Restoration Act (1993)
38. Roubidous, Vic, DaShanne Stokes and Manfred Guina. 2006. "The Sanctity of Eagles." Native America Calling, December 19, Albuquerque, NM.
39. Saenz v. Dept. of the Interior (2001)
40. Shulz, J. W. 1907. My Life as an Indian, by J.W. Shulz. Dover Publications: Mineola, N.Y.
41. Smelmer, Donald. 2001. "Babbitt Officially Adopted by Wealthy Calif. Tribe." Indian Country Tomorrow. Retrieved November 21, 2007 from: http://www.indianz.com/ict/show.asp?id=babbitt
42. Stark, Mike. 2005. "Schweitzer adopted into Crow Nation." Billings Gazette. Retrieved November 1, 2007 from: http://www.billingsgazette.com/newdex.php?display=rednews/2005/05/20/build/state/25-gov-crow.inc
43. Stokes, DaShanne. 2007. "Time for new eagle feather law." Indian Country Today, February 21, pp. A2. http://www.indiancountry.com/content.cfm?id=1096414511
44. Stokes, DaShanne. 2006. "Monday is Launch Date of Website Lobbying Against Eagle Feather Possession Law." The Yankton Press & Dakotan, February 25, (http://yankton.net/stories/022506/neighbors_20060225011.shtml).
45. Stokes, DaShanne. 2007. "The Eagle Feather Law: How Religious Freedom in America is Restricted for Native Americans." First Voices Indigenous Radio, WBAI 99.5 FM. March 1, New York, NY. http://firstvoices.typepad.com/my_weblog/2007/03/the_eagle_feath.html
46. Taliman, Valerie, Native Currents: Termination by Bureaucracy (2003)
47. Title 50 Part 22 Code of Federal Regulations.
48. University of Colorado. 2004. Indian Law Clinic Awarded Attorneys' Fees for Successful Eagle Feather Recovery Case. Retrieved November 21, 2007 from: http://lawweb.colorado.edu/news/showArticle.jsp?id=7
49. US Fish and Wildlife Service. 2006. "Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife." Federal Register 71 (32): 8238-8251. Retrieved July 8, 2006 from http://www.fws.gov/migratorybirds/issues/BaldEagle/Reopening.Comments.06.pdf
50. US Fish and Wildlife Service. "Eagle Parts for Native American Religious Purposes Permit Application and Shipping Request." Retrieved August 6, 2006 from: http://www.fws.gov/permits/forms/eaglereligious.pdf.
51. US Fish and Wildlife Service. 2001. Native American Activities: Migratory Bird Feathers. Retrieved November 21, 2007 from: http://library.fws.gov/Pubs2/nativeamerican01.pdf
52. U.S. v. Thirty Eight Golden Eagles (1986)
53. US v. Hardman D. Ct. Nos. 99-CR-166-B, 99-21-M & 2:99-CR-00047W (2002)
54. US v. Lundquist (1996)
55. US v. Oliver (2000)
56. US v. Saenz D.C. No. 99-21-M (2001)
57. US v. Wilgus D.C. No. 2:99-CR-00047W (2001)
58. Whitehead, Louis. Denying Assistance to Mixed Bloods Perpetuates Genocide (2006)
59. Whiting, Lezlee. 2006 "Feather confiscation has family fuming" Desert Morning News. Retrieved July 2, 2006 from http://deseretnews.com/dn/view/0,1249,600100469,00.html
60. Wilson, Elinor, 1972. Jim Beckwourth. University of Oklahoma Press, Norman,
61. Wyman, M. 1998. The Wisconsin Frontier. Indiana University Press: Bloomington, I.N.
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