Feds make it easier for Native Americans to collect eagle feathers, but Utes fear change could go too far

Acting on requests brought by Utah’s Utes and other American Indian tribes, the U.S. Fish and Wildlife Service announced it is loosening some restrictions on Native Americans’ ability to collect feathers of bald and golden eagles, iconic birds that are protected under federal law.

Although pleased with the rule change, the Ute Indian Tribe remained concerned the federal government could extend religion-based feather-possessing privileges to those who are not enrolled in federally recognized tribes.

For millennia, indigenous Americans have worn and used feathers and other parts of the charismatic raptor that many consider a sacred animal, symbolizing honor and strength. In more recent times, namely 1962, American Indians have been exempted from federal bans on possessing eagle parts, although they have remained subject to regulations many tribes find onerous and vexing. Last week, the feds relented, releasing a rule change authorizing tribal members to gather eagle remains found on tribal lands.

Under the old rule, tribal members would have to contact federal wildlife authorities, who would dispatch an officer to collect the carcass and deliver it to the National Eagle Repository near Denver. That’s assuming that the bird was not illegally killed, in which case it would be retained as evidence of a crime.

The Ute Indian Tribe’s governing council praised the change, yet it fears the Fish and Wildlife Service could go too far. Under court order, the service is weighing a formal petition filed earlier this year by a renowned feather dancer seeking feather-possession rights to Native Americans who are not enrolled in federally recognized tribes, as well as to “sincere religious believers” whether or not they are Indians.

Robert Soto is a pastor of McAllen Grace Brethren Church in Texas and a leader of the Lipan Apache, a tribal group recognized by Texas but not the federal government.

While the Ute Tribe endorses some aspects of the Soto petition, it objects to its central request, which it argues would “fundamentally violate” the government’s treaty obligations to tribes and invite pretenders to profit off tribal religious customs.

“The third and main proposal also violates and would jeopardize the entirety of federal law and policy governing tribal-federal relations, and would irreparably harm all Indian tribes by incentivizing the appropriation and commercialization of not only eagle feathers, but Native American culture and religious beliefs,” the Ute Tribe wrote in its formal comments dated June 18.

Soto garnered national headlines in 2006 when undercover federal agents raided a powwow he helped organize and seized dozens of eagle feathers. The pastor ultimately prevailed in the courts, which concluded his 400-member church was entitled to the same rights as other Native Americans when it came to eagle feathers. As part of a settlement, his church was invited to petition Fish and Wildlife to develop rules to apply the logic of his case more broadly.

The recently amended rule still fails to account for the profound spiritual significance Native American religious adherents place on eagles, according to the Becket Fund for Religious Liberty, a nonprofit law firm working on Soto’s case and petition.

“Under the law, power companies are allowed to kill thousands of eagles every year, as are wind farms and airports. Zoos can possess eagles, and scientists can obtain eagle parts for research, but folks likes Pastor Soto are criminally barred from possessing a single eagle feather,” said Luke Goodrich, Becket’s senior attorney who is based in Salt Lake City. “Current federal policy treats eagle parts as a gift from the government rather than a core element of Native American religious practice and a right for Native Americans to religious freedom.”

Since 1975, the Department of Interior has been guided by the so-called Morton Policy, which generally discourages the prosecution of Native Americans caught possessing eagle feathers without a permit, as long as they were not exchanging them for compensation.

“Morton is just a policy. It could be revoked tomorrow,” Goodrich said. “We are asking it to be made a permanent rule.”

The Utes agree the Morton rule should become permanent but want limits kept in place restricting non-Indians from trafficking in eagle feathers.

Goodrich counters that some restrictions stifle Native American culture. Here’s an example how:

Say you are an American Indian elder who gives a feather to a grandchild upon graduating from high school and entering adulthood, but the grandchild is not an enrolled member of the tribe. Under current law, both people could be prosecuted for felonies, according to Goodrich. One for gifting the feather; the other for receiving it.

“That deeply interferes with the ability to pass on tribal traditions from generation to generation,” Goodrich said. “It’s nonsensical. [Feathers] are a gift from the creator. Every Native American should be free to [possess them] without threat of prosecution.”

The Ute Tribe, however, contends the Soto petition lumps federally recognized tribes with “Native American religious associations” and grants them the presumption of sincerity in religious beliefs.

“Purporting to judge the sincerity of a tribal member’s religious beliefs is as insulting as it is outrageous,” the tribe states in its official comments. “The open-ended classifications proposed in the petition invites nonmembers from all walks of life to fabricate Indian heritage, culture, and religion for personal and commercial [gain].”

Granting the petition would put even more pressure on the government’s backlogged system for distributing features.

“Members of federally recognized Indian tribes would also be made to compete against non-Indians in an already broken system that currently requires members of federally recognized Indian tribes to wait months, if not years, before obtaining eagle feathers or parts from the National Eagle Repository, many times in a state of unusable decay,” state the tribe’s comments.

While Soto prevailed in his quest to get his seized feathers back, one Utah man was not so fortunate. In the late 1990s, police seized 141 eagle feathers from Samuel Wilgus Jr., who had been adopted by enrolled Paiute members and practiced the religion, during a traffic stop near Fillmore. Wilgus was convicted of violating the 1940 Bald And Golden Eagle Protection Act and appealed.

A 2011 ruling by the 10th U.S. Circuit Court of Appeals affirmed the conviction, holding that the federal government’s obligation is to protect the interests of Native American tribes, not necessarily Native American culture. The three-judge panel concluded that allowing all believers to possess feathers would create enforcement problems.

“If an ... agent catches a suspect in possession of eagle feathers, that suspect can then claim that he is a sincere follower of Native American religion,” the opinion states, anticipating some of the concerns the Ute Tribe is now raising. “The unlucky ... agent would then be cast in the role of ‘religion cop’ and would be forced to decide whether the suspect is being truthful about his religious beliefs.”

Fish and Wildlife is obligated to review Soto’s petition, which could provide hope for people in Wilgus’ situation, and has until April 2021 to act.

In the meantime, Ute leaders are elated with their constituents’ newfound ability to keep eagle parts found on tribal lands.

Under the new policy, a tribal member who discovers eagle remains is to first report it to Fish and Wildlife law enforcement, which will examine the eagle to ensure it had not been illegally killed. If no evidence of foul play is found, the tribal member may take direct possession of the carcass without having to go through the national repository.

This new streamlined and more direct process grants tribal members access to deceased eagles for use in religious and cultural ceremonies without having to run through the repository’s gantlet of bureaucratic obstacles, the Ute tribal committee said in a statement last week.