April 19, 2012
Double-Binding Eagle Feathers
— Brendan Q. Swagerty
The Associated Press released two stories concerning the important and controversial March 9, 2012 permit issued by the U.S. Fish and Wildlife Service to the Northern Arapaho Nation allowing them to kill or capture up to two bald eagles a year for religious uses. This excludes unlawful commercial or decorative uses. The Northern Arapaho, an Algonquian language-speaking people, live on the Wind River Reservation in Wyoming, which they share with the Eastern Shoshone, a Uto-Aztecan language-speaking people. Note, too, that the Eastern Shoshone likewise use bald eagle feathers and other body parts for religious purposes, preferring however alternative forms of collection to those of their reservation partners. In what is a further source of tension between the two nations, the Eastern Shoshone resist the Northern Arapaho killing of bald eagles on the reservation, calling it a violation of their joint laws and codes. The permit, as a result, requires that the capture of bald eagles must occur off the reservation, in accordance with Eastern Shoshone concerns, as well as federal and state laws, and therefore outside Northern Arapaho jurisdiction and control. As can be expected, then, this outcome dissatisfies the Northern Arapaho, who consequently filed new legal objections on March 30.
While the U.S. Fish and Wildlife Service has issued other permits to tribes in the past regarding the religious capturing of golden eagles, this is the first bald eagle permit issued. Last fall, the Northern Arapaho filed an application with, and a lawsuit against, the Service following the conclusion of the 2005 Winslow Friday case. The Northern Arapaho then filed a new lawsuit March 30: (1) in response to the language of the permit; (2) in defense of the tribe's religious rights to capture--on tribal lands--a certain number of bald eagles, which have been off the federal threatened species list since 2007; and (3) to prevent any other future Winslow Friday cases from emerging.
In the same lawsuit filed March 30, the Northern Arapaho contend that the March 9 permit does not clearly specify the space and jurisdiction within which the lawful taking of eagles can occur. In what is yet another twist in this story, the permit requires the Northern Arapaho to adhere to state law. Consequently, according to Northern Arapaho Nation lawyer, Andy Baldwin, "Any tribal member taking an eagle pursuant to the March 9, 2012 permit is subject to arrest and prosecution by the State of Wyoming, whether the take occurs on federal, state or other lands." In short, the language of the permit makes it incoherent and indeterminate: (1) the Northern Arapaho can kill two bald eagles a year off the reservation and in the state of Wyoming, which subjects them to an outside authority and jurisdiction; (2) the state of Wyoming does not permit the killing of bald eagles; and (3) the permit requires the Northern Arapaho to follow state law. Seemingly, then, the Northern Arapaho are caught in a legal double, even triple, bind where they cannot win for compromising—on the one hand, they can exercise their sovereign and religious rights, on the other, they must do so in a space which seemingly does not permit the exercising of those rights. In response, U.S. Fish and Wildlife Service assistance director, Matt Hogan tried clarifying the permit's language stressing, "Permission for take of eagles would not be required by the State of Wyoming...[O]ne of the permit conditions [though] is consent from the landowner from where the bird will be taken." Thus, if the government succeeds, the permit will subject the Northern Arapaho to a kind of shell game of authority. Is it the Northern Arapaho Nation, the federal government, the state, or private landowners to whom they must answer? Until this matter is satisfactorily resolved, according to Baldwin, the risk of future cases involving Northern Arapaho people, like that of Friday's, still putatively exists.
Weighing in on this matter, too, are of course various conservation and humane societies. Wayne Parcell, the president of The Humane Society of the United States, for example, is on record arguing, "We hold bald eagles in great esteem as well, and as a humane organization, we don't want to see them killed." He continued, "In this case, we had hoped they would use feathers and carcasses that they could obtain from trustworthy sources and not resort to direct killing."
There are several points worth highlighting here. One, it must be considered that perhaps the Northern Arapaho do not want eagle feathers collected, for instance, from birds raised in captivity, killed by power lines or cars, or in other ways they find disagreeable, undesirable, etc., and instead prefer feathers taken in a manner they find commensurate with their religious values, discourses, and practices. The first amendment's free exercise clause as well as this new type of permit, moreover, putatively protect and make lawful these Northern Arapaho ways of collection. Is it necessary, then, to frame this as an either / or situation? If the Northern Arapaho do not want to collect eagle feathers in the ways in which other groups want them to, should they not be allowed any bald eagles or feathers at all? This seems to be a rather unfair, possibly illegal, and even jejune position to maintain.
Two, if conservationists maintain that the permit will ultimately cause a decline in bald eagle populations or even their extinction, then is not the burden of proof on conservationists to demonstrate precisely how this catastrophic turn of events will happen based on the relatively fair compromise of taking only two eagles a year?
Three, and related to the former, fears can be allayed, for the Northern Arapaho taking two bald eagles a year is not a "slippery slope" to species endangerment or extinction. After all the permit was only issued to the Northern Arapaho Nation, and not everyone in the tribe can hunt, capture, kill, possess, or use bald eagle feathers and parts; rather the situation is far more legally and culturally complicated than that.
Four, we should presume that the Northern Arapaho are negotiating and acting in good faith—until such time their practices warrant otherwise—and that they will conform to the legal strictures of the agreement, taking only their allotted share.
Lastly, if the Northern Arapaho are not (a) unlawfully capturing bald eagles and their feathers, or (b) returning the bald eagle to the endangered list as a result of their practices, then is it not a matter of governmental balance between the protection of the bald eagle, on the one hand, and the protection of Northern Arapaho culture and sovereign rights, on the other? Indeed, the U.S. government is required to seek such a balance, until such time that their interests to preserve the eagle population outweighs their commitment to preserve and protect indigenous cultures and rights. Without such cause, however, the government does not have a compelling case to interfere with the Northern Arapaho's religious taking of the eagle, a right which in fact predates the constitution and American history, and ought be considered as part and parcel of the inherent sovereignty conceded to Native American governments.
If the competing discourses outlined in this essay are successful then the Northern Arapaho can look forward to more litigation ahead of them. As a result they will continue to face further pressures and processes of assimilation placed upon them by other Indian tribes, federal and state governments, and conservationists, among others. Indeed, there is much more on the horizon concerning this case, such as the complaints of non-Indians wanting bald eagle feathers, and so on, and of those first amendment watchdogs interested in issues not only regarding the free-exercise clause but the establishment one, as well, and whether or not the permit violates the latter.
Notwithstanding these realities, Suzan Shown Harjo, president of the D.C. based Morning Star Institute, still feels the permit is moving the debate in the right direction, one toward upholding Tribal sovereignty, Indian religious freedom and animal rights, as well as promoting healing between the U.S. and Indian peoples. "They've done the correct thing, the proper thing. It's a good step in the direction of the United States trying to make amends for things that they did all too well to suppress Native American religious freedom for so long." The term "amends" could imply a kind of correction leading to closure. Given, however, the many loose ends of this case, it appears this process is just beginning.
Associated Press, "Tribe Allowed to Kill Bald Eagle Celebrates Its Tradition," USA Today, March 17, 2012.
"Wyoming Tribe that Received First Bald Eagle Permit Presses Lawsuit Over Limits," The Washington Post, March 30, 2012.
Brendan Swagerty is a PhD candidate in the History of Religions.