By: Tommi E. Powell with Angelica Chavis 4
On October 12, 2012, the United States Department of Justice issued an internal policy memo concerning the use and possession of protected birds and bird parts by Native Americans. The memo sought to bring enforcement of the use and possession in line with the Morton Policy. The memo includes all birds protected under current federal laws, including the Bald and Golden Eagle Protection Act, the Migratory Bird Treaty Act of 1918, the Lacey Act, the Endangered Species Act, and executive orders offering protection for certain species. The memo permits members of federally recognized Native American tribes to:
- Have or use the feathers or other parts of eagles or other migratory birds.
- Pick up naturally fallen or molted feathers found in the wild, without disturbing birds or their nests.
- Give or lend the feathers or other parts of eagles or other migratory birds to other members of federally recognized tribes.
- Exchange with other members of federally recognized tribes, without payment of any kind, the feathers or other parts of eagles or other migratory birds for other such items.
- Give the feathers or other parts of eagles or other migratory birds to craftspersons who are also members of federally recognized tribes to be fashioned into cultural or religious items. Craftspersons may be paid for their work, but no payment may be made for the feathers or other parts of the eagles or other migratory birds.
- Travel in the United States with feathers or other parts of eagles or other migratory birds.
- Travel internationally with the feathers or other parts of eagles or other migratory birds, subject to permit requirements. 5
The memo is consistent with the Morton Policy and the Department of Justice’s traditional practice of exercising discretion concerning the use of protected birds and bird parts by Native Americans. As a result of more than a year’s worth of meetings and tribal consultations, the memo clarifies aspects of the Morton Policy and attempts to provide uniformity as far as enforcement is concerned. The Department of Justice intentionally limited the memo’s guidelines to apply to federally recognized tribes only, providing that prosecutors may use their discretion when members of non-federally recognized tribes are found to be in violation of the existing laws concerning the possession and use of protected birds and bird parts. Some tribal officials and members urged that the Department of Justice reconsider the limitation and apply the policy to all indigenous peoples in the United States or, alternatively, require a tribal membership ID. But the Department of Justice said basing the “proposed policy on race or ethnicity, or on a claim or assessment of ‘legitimate’ religious need, would be inappropriate” as it would “diminish the supply available to members of federally recognized tribes.” 6
The Lumbee Tribe, the largest Native American tribe east of the Mississippi River, is one of the many tribes intentionally left out of the memo as their recognition is only at the state level. What has been deemed as a slight by many of the tribal members has not gone unnoticed. Angelica Chavis, a fellow third-year law student and member of the Lumbee Tribe, graciously agreed to co-author this article with me and provided the following:
“Receiving an eagle feather is a great honor within our tribe, and many Indian tribes around the country. I received my first eagle feather at age 7, from a tribal elder, while representing our tribe as Little Miss Lumbee. Our feathers are used in many ceremonies, and serve as a strong connection to our rich native heritage. Although eagle feathers have not always been utilized within the Lumbee tribe, for several decades, and throughout my entire life, they have been an important part in our traditions. The Department of Justice has relegated state-recognized tribes, like the Lumbee Tribe, to a position of second-class Indians. The prohibition against us possessing eagle feathers while members of federally recognized tribes can utilize the feathers for the exact same purposes is discriminatory and denies us free speech and religious freedoms. Lumbees, and members of other non-federally recognized tribes, should not be required to hide their feathers for fear of prosecution that is ‘discretionary’ in nature.”
According to Rob Jacobs, a member of the Lumbee Tribe, eagle feathers were never a traditional part of Southeastern Indian cultures, though other birds were. When powwows became popular on the east coast in the 1970s, Eagle feathers and the symbolism behind them were also quickly embraced. Eagle feathers symbolize a great honor, and they should only be given to someone who has earned them “through good works or carrying themselves in a good way,” said Jacobs. Jacobs further explained the importance of the feather to Lumbees. “The eagle feather is used in ceremonial events only. In powwows, they are worn usually on top of your head as it’s the closest part of your body to the Creator as a means to show that God is honored and guides you. It is also used in smudging ceremonies, where sage and other cleansing herbs are burned and fanned with the feather,” explained Jacobs, who likened the procedure to a Catholic Church ceremony where incense is burned and the church blessed. Jacobs is unconcerned about the policy, and he will continue to possess and use his feathers.
April Whittemore Locklear, a member of the Lumbee Tribe, has already decided she will no longer wear her feathers in public. She will keep them safe in her home, where the ceremonies and prayers they are used for take place. “I don’t see someone approaching my house with a search warrant for feathers,” said Locklear. Locklear said there are alternatives to wearing eagle feathers at powwows, indicating that if she must “appear to wear Eagle feathers, then [she] can always buy chicken feathers and dye them in tea to give them a brown look.” This process is something Locklear did when she was a child and wanted to be “like the big girls” at the powwows. They made the fake feathers because they did not know how long it would take to be honored with a real Eagle feather. Locklear was honored with her first feather, which was actually an Eagle Wing Fan, when she was 17. Her feathers are sacred to her and will be passed down to her son; she does not want them taken away.
But would a prosecutor, who is allowed by the Department of Justice to utilize his discretion when it comes to members of non-federally recognized tribes, actually pursue an action against members of a state-recognized tribe who use and possess feathers and other bird parts for ceremonial and religious purposes? “Technically, the Feds could attend our powwow and arrest every single state-recognized tribal member at our powwow, but the publicity and the sacrilege that it would portray would be more bad press than they would like and put other Indians on notice. I would compare it to the killing of ghost dancers in the middle of prayer,” said Jacobs.
The memo is long overdue, as clarification of enforcement has long been overdue. Prior to this clarification, discretion was used when any Native American was found in violation of any federal law protecting birds and bird parts. Will this memo, with a clear distinction drawn between the treatment of federally recognized tribes and non-federally recognized tribes, result in state-recognized tribes being forced to hide their feathers out of fear of the uncertainty? Or is Jacobs right? If so, and the unwritten policy concerning state-recognized tribes will continue as in the past (with no action being taken against tribal members using feathers and bird parts for ceremonial purposes), this memo did nothing more than to further separate federally recognized tribes and those that have yet to receive federal recognition.