Susan Lettis

September 13, 2010

The National Eagle Repository, headquartered in Commerce City, Colorado, is the one-stop shop for all eagle feathers and parts in the United States. For centuries, Native Americans have used eagle feathers for religious and cultural reasons. Under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act, an eagle cannot be taken or killed, even if stumbled upon already dead. Under the Acts, only the federal government can salvage dead eagles.

However, both Acts contain exceptions giving the Secretary of Interior authority to authorize Native Americans to possess eagle feathers. Native Americans wishing to obtain eagle feathers must apply to the repository. The repository is run by the U.S. Fish and Wildlife Service. As of September 2009, approximately 6,000 applications were pending at the repository. A Native American must wait from six months to several years, depending on the request. While a Native American's wait period is often uncertain, under both Acts, a non-Native American will wait forever.

The Secretary of the Interior may only authorize qualified Native Americans to posses eagle feathers. A non-Native American practicing a Native American religion is not permitted to posses eagle feathers or eagle parts under the acts. This may change, however, due to a 2009 decision by the U.S. District Court of Utah, U.S. v. Hardman, heard on remand from the 10th Circuit Court of Appeals. The Hardman court held that the government did not employ the least restrictive means possible in enacting the ban on possession of eagle feathers by non-Natives, as required under the Religious Freedom Restoration Act (RFRA).

In 1993 Congress passed RFRA, which prohibits the government from substantially burdening a person's exercise of religion. An exception to the rules applies if federal law is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that governmental interest. In Hardman, the government argued that it had two compelling interests: 1) to protect and maintain the eagle population in North America and 2) to foster Native American religions by providing eagle feathers to Native American practitioners. The defendants, both non-Native practitioners of Native American religions, argued that the government did not use the least restrictive means available of furthering its interest by imposing a flat ban on possession of eagle feathers by anyone but federally recognized Native American practitioners of Native American religions.

The court recognized the compelling interests of the government, but pointed out that allowing non-Native practitioners of Native American religions could help promote Native American religions, furthering the government's interest even more. The government contended that allowing non-Native participants to apply to the repository to obtain eagle feathers would further exacerbate the already slow repository system and overwhelm the supply of eagle feathers and eagle parts. The Court dismissed these concerns for lack of certainty in how many non-Native Americans would apply to the repository, and because eagles are no longer protected by the Endangered Species Act.

This decision leaves many questions left unanswered. How can the government further their interests of protecting the fragile eagle population while promoting and protecting indigenous religion and culture? If non-Natives are allowed to apply for permits to possess eagle feathers, how will it affect the eagle population? Will the black market trade of eagle feathers increase or decrease? How will the Native community react? The court acknowledged the number of variables that affect the answers to these questions, and remarked how unlikely it is that a court, the legislature, or administrative agency could fashion an "adamantine and eternal solution that will allocate scarce resources appropriately for all time."

Sources:

United States v. Hardman, 622 F.Supp. 2d 1129, (D.Utah 2009).

Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb-1 (a,b).