Department of Justice Announces New Eagle Feather Policy
Native American Legislative Update - October 2012
New Policy Clarifies Native Use of Eagle Feathers
Eagles hold a special significance for many Native Americans. Eagle feathers and other eagle parts are central to certain spiritual ceremonies, and they play an important role in Native American cultures. However, eagles are an endangered species. Congress passed legislation to protect the bald eagle (1940) and golden eagle (1962) by prohibiting the killing or taking of parts of the birds, effectively cutting off access to eagle feathers for Native Americans.
Whether a Native American could be prosecuted for possessing an eagle feather depends who in the federal government you ask. In 1975, Department of the Interior Secretary C.B. Morton issued an enforcement policy (known for the past 35 years as the “Morton policy”) declaring that his department would not enforce the laws that protect migratory birds against Native Americans who possessed eagle feathers and other parts of migratory birds for religious and cultural purposes. Until 1994, other agencies had no similar policies, so the right to possess eagle parts was still unclear. Recognizing this infringement of Native American religious expression, the Clinton administration ordered all federal agencies to accommodate Native American religious and cultural practices—including the Justice Department, which was charged with enforcing the laws.
Nearly 20 years after this order, Native nations are still concerned about the federal government’s enforcement of eagle feather policies. While the right to possess eagle parts is fairly clearly protected, the process for obtaining eagle parts legally, using them to create ceremonial regalia and objects, and transporting them to where they will be used is still unclear. To minimize the impact on the endangered species, federal policies forbid buying and selling eagle parts. Yet not all Native peoples live in a place where they might find eagle feathers in a natural setting. Federal policies have permitted the creation of repositories for eagle feathers, but the process of distribution is still unclear.
This summer, the Department of Justice responded to these concerns by holding listening sessions around the country, soliciting comments from tribal leaders about the agency’s proposed enforcement policy. Tribal leaders urged the department to state clearly that Native Americans can obtain and possess eagle feathers and other eagle parts for religious or cultural purposes without fear of prosecution or harassment.
On October 12, the Justice Department formally announced the new policy. It reaffirmed its intention to uphold Native rights of eagle feather possession. It also reaffirmed its intention to prosecute people – Native and non-Native – for killing eagles without a permit from the federal Fish and Wildlife Service in the Department of the Interior, or for exchanging eagle feathers and parts for money or bartered goods or services, rather than for religious or cultural purposes. An important improvement is greater clarity about how Native craftspeople – who create regalia and sacred objects – can access eagle feathers and parts.
The policy states an intention to follow the 1975 Morton policy, which provided that eagle feathers and other culturally significant bird parts could be given to craftspeople who would incorporate them into ceremonial regalia and objects. Although the eagle feathers themselves cannot be bought or sold, the craftsperson may compensated for the work that goes into the garment or ceremonial object. Specifically, the policy provides that Native Americans will not be prosecuted for the following:
- Possessing, using, wearing or carrying federally protected birds, bird feathers or other bird parts (federally protected bird parts);
- Traveling domestically with federally protected bird parts or, if tribal members obtain and comply with necessary permits, traveling internationally with such items;
- Picking up naturally molted or fallen feathers found in the wild, without molesting or disturbing federally protected birds or their nests;
- Giving or loaning federally protected bird parts to other members of federally recognized tribes, without compensation of any kind;
- Exchanging federally protected bird parts for federally protected bird parts with other members of federally recognized tribes, without compensation of any kind;
- Providing the feathers or other parts of federally protected birds to craftspersons who are members of federally recognized tribes to be fashioned into objects for eventual use in tribal religious or cultural activities.
The Department of Justice consultation with tribal leaders was one of several listening processes that federal departments have undertaken in the past three years. In each case, departments have improved policies, practices, and communications with Native peoples, and strengthened respectful government to government relations with Native leaders.
More information about religious freedom and sacred sites is available in FCNL's fall Indian Report. Read the Department of Justice memo about the new policy here.