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Eagle feather law
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In the United States, there are a number of federal wildlife laws pertaining to eagles and their feathers (e.g. The Lacey Act, The Migratory Bird Treaty Act, the Endangered Species Act, and the Bald and Golden Eagle Protection Act), however the
"eagle feather law" in its most common usage refers to Title 50 Part 22 of the United States Code of Federal Regulations (50 CFR 22), the federal law governing the use and possession of eagles (and other migratory bird species) and their body parts, including feathers, as religious objects.
The eagle feather law provides certain exceptions to federal wildlife laws regarding eagles and other migratory birds to enable Native Americans to continue to practice traditional indigenous religious and spiritual customs, of which the use and possession of eagle feathers is central.
Under the current language of the eagle feather law, only individuals of certifiable Native American ancestry enrolled in a federally recognized tribe are legally authorized to obtain eagle feathers.
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Encyclopedia
In the United States, there are a number of federal wildlife laws pertaining to eagles and their feathers (e.g. The Lacey Act, The Migratory Bird Treaty Act, the Endangered Species Act, and the Bald and Golden Eagle Protection Act), however the
"eagle feather law" in its most common usage refers to Title 50 Part 22 of the United States Code of Federal Regulations (50 CFR 22), the federal law governing the use and possession of eagles (and other migratory bird species) and their body parts, including feathers, as religious objects.
The eagle feather law provides certain exceptions to federal wildlife laws regarding eagles and other migratory birds to enable Native Americans to continue to practice traditional indigenous religious and spiritual customs, of which the use and possession of eagle feathers is central.
Under the current language of the eagle feather law, only individuals of certifiable Native American ancestry enrolled in a federally recognized tribe are legally authorized to obtain eagle feathers. Unauthorized persons found with an eagle or its parts in their possession can be fined up to $25,000.
To legally possess eagle feathers for use in Native American spiritual practices, citizens must be able to legally prove their ethnicity. This is generally accomplished by providing documentation of Native American ancestry officially recorded in the original Dawes Rolls (or Final Rolls of Citizens and Freedmen of the Five Civilized Tribes, or the Dawes Commission of Final Rolls) and documentation of current membership in a federally recognized tribe. Tribal membership often requires a minimum blood quantum of ¼ Native American ancestry (having at least one grandparent who was full-blood Native American), although blood quantum requirements for tribal membership vary widely. The eagle feather law allows for individuals who are adopted members of federally recognized tribes to obtain eagle feathers and eagle feather permits. All applicants for eagle permits must submit an application to the United States Fish and Wildlife Service (USFWS) for religious use of eagle feathers.
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 criticism on the 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.
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. 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. A 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)
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 law has incited ongoing debate over the criteria of ownership and possession of eagles and eagle 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.
Defenders of the law have argued it is the only legal protection of Native American spirituality, and that because eagle supplies are limited, increasing the number of people who can have them may make feathers more scarce. Arguments in favor of amending the law have been made on the grounds that it imposes racial preferences & segregation not traditionally found amongst Native American societies, and additionally that 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, thus harming the preservation of traditional values and practices of indigenous societies that have welcomed non-Native Americans for centuries. It is also argued that eagle permit certification restrictions based on race impede people with Native American ancestry, but who may be unable to prove their ancestry, from exploring their heritage. Supporters advocate removing racial requirements from 50 CFR 22, stating that because it will enable all U.S. citizens to apply for eagles or parts from the National Eagle Repository, (overseen by the United States Fish and Wildlife Service it would extend the ability of government-regulated programs and agencies to protect raptors by decreasing the 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)
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