It's a nice gesture to reassure tribes about their religious use of eagle feathers -- but if that's the best the Administration can do for American Indians, it's not enough
President Barack Obama meets with American Indian leaders this afternoon in Washington but, on the law front, it's already been a tough year for the tribes. In February, the president nominated Arvo Mikkanen, an Ivy-educated Native American, to a spot as a federal trial judge in Oklahoma. He would be only the third documented Native American federal judge in U.S. history. But GOP Senator Tom Coburn immediately blocked the nomination and, nine months later, Mikkanen still hasn't received a hearing, much less a floor vote. Worse, no one in Washington seems to care.
Then, in June, the United States Supreme Court stuck it to American Indian interests in a case styled United States v. Jicarilla Apache Nation. In a 7-1 decision, the Court ruled that the U.S. could withhold from lawyers for the Jicarilla Apache Nation hundreds of documents that may be relevant to the tribe's long-standing mismanagement claims against the feds. Justice Samuel Alito justified the decision by reminding his audience that the relationship between the feds and the tribe was less about trusteeship and more about power.
In the first instance, Congress failed to do right by Native American interests. When asked why he so quickly denounced the Mikkanen nomination, Sen. Coburn told reporters in February, "I know plenty." Yet he has never had to explain what he knows or why it is enough to sink Mikkanen's candidacy. In the second instance, it's the judicial branch that has failed American Indian iterests. Only Justice Sonia Sotomayor called out the High Court majority in Jicarilla. She said that Justice Alito's opinion "rests on false factual and legal premises."
So what is the other branch of government, the executive branch, doing for Native Americans as 2011 comes to a close? Is the White House pushing for Mikkanen to get a hearing? No. Is it pushing Congress to help change the procedural rules in Indian trust cases so that American Indian litigants can have more access to federal documents that pertain to their claims against federal officials? No. Those things would involve the expenditure of political capital -- and the administration has shown repeatedly its unwillingness to spend in this area.
Instead, the Obama Administration is looking inward. This week came news that five American Indians have been named to an Indian Trust Commission that will help suggest reforms to the odious federal management of Indian trusts. The effort is expected to take two years, at a minimum, and of course won't be the final word. And, today, President Obama will go to the Interior Department to participate in the White House Tribal Conference, to which over 550 Native American tribes were invited. He will no doubt talk about his Administration's devotion to Indian interests.
Devotion which is quite underwhelming. Just last month, for example, the Justice Department announced that it is "considering whether to adopt a formal policy that would memorialize and clarify its practice of enforcing federal wildlife laws in a manner that respects and protects the ability of members of federally recognized tribes to use eagle feathers and other bird feathers for cultural and religious purposes." Amid the rubble of Jicarilla and Mikkanen, the feds want to quietly reassure Tribal members that they won't be prosecuted as often for dealing in eagle feathers.
Here is the full text of the government's proposal. The deadline for comments is today. The Justice Department specifically asked for comment on whether a formal new written policy would "help allay the concerns of tribal members" or at least "provide useful clarification" to them about the government's attempt at delicate balancing here between religious practices and wildlife protection. And there's another, related proposal, which aims "to develop a joint federal and tribal training program on enforcement of such laws."
Such laws as the Bald and Golden Eagle Protection Act. Enacted in 1940, it was amended in 1962 to include an exception that allowed for Native Americans to use eagles or eagle parts in their religious ceremonies. It is illegal for anyone to kill or harm these protected birds. But the market still exists for their feathers. Earlier this year, for example, the 10th U.S Circuit Court of Appeals refused to extend the religious exemption to a non-Indian who claimed he had a right to eagle feathers based upon his own American Indian religious beliefs.
From the Denver Post piece on that ruling:
Federal regulations provide the exception only to members of recognized tribes who obtain permits and feathers from the National Eagle Repository in Commerce City, which stores feathers and parts harvested from dead eagles by wildlife authorities.
Demand exceeds supply, and the waits for feathers or eagle parts are long. The feathers and parts aren't transferable, except when handed down from a generation to the next, by one Indian to another.
So what do Native American voices, or at least voices that study Native American issues, think about all the Justice Department's overture? Kenny Frost, an Elder and Sun Dance Chief with the Ute Nation, told me Thursday that he is in favor of the new rules so long as they bring a swifter pace to the legitimate eagle feather trade. "There needs to be clarification" about who can be prosecuted, Frost said, because the uncertainty helps cause great delay in getting feathers to Native people who want them for their choreographic healing ceremonies.
"It takes six or seven years to go through the Repository," Frost said. "The wait creates a hardship. There needs to be a much more streamlined process so that Native Americans who wish to do so can obtain eagle feathers or eagle parts." Frost plans to make that point in comments he intends to file with the Justice Department. "The people who sell eagle feathers for profit are the ones who ought to be prosecuted," Frost says. "We don't take lightly when we hold or carry feathers. We value them greatly."
Professor Tim Pleasant, co-director of an Indian Law program at the University of Tulsa College of Law, frames the issue in a way in which many more of us can related. When I asked I asked him to tell me if the Justice Department's move was good or bad, he replied:
Especially since, historically, the Department of Justice hasn't had a lot of respect for Indian religion and culture, the fact that it is pro-actively reaching out to Native Americans while shaping policy on this issue is very much to the credit of the Department. Of course, not every Tribe sees this issue the same way... to some, the use of eagle feathers, claws, etc., is more important than to others. But it is important to realize just how sensitive this issue can be. Asking an Indian to go to the federally controlled Repository to get eagle feathers can be like telling the Jewish side of my family that they would have to go get a federally approved menorah with which to celebrate Hanukkah, or requiring a Catholic to get a government-supplied rosary... and making them wait three years or more to get them.
Meanwhile, G. William Rice, a co-director of the Native American Law Center, took a broader view. Of the Justice Department's effort, he wrote
Perhaps the most positive statements in this release are the suggestions that the Interior and Justice Departments are willing to work separately with each Tribe, Band, and Nation on enforcement matters so that their particular practices will be respected. That respectful cooperative approach should be encouraged, and every effort made to do so in a manner that meets the minimum standards expressed in the recent United Nations' Declaration on the Rights of Indigenous Peoples
My call to the Office of Tribal Justice was not returned. I meant to ask Christopher Chaney, the deputy director there, whether the feds believe that merely reducing the current policy to writing will solve the problems Frost identified. Formalizing existing policy isn't a dramatic break from the past, after all, and the long-term solution here rests with Congress. Native Americans who want eagle feathers for religious services should not have to wait "six or seven years" to get them. But will the DoJ's bookkeeping move really help fix that? I am not sure.
Congress is no friend of the American Indian. Surely this Supreme Court isn't, either. And there was a need to clarify the rules on eagle feathers. But is this really the best President Obama can do? I hope an American Indian leader says to President Obama today at the White House: "Don't worry so much about adopting 'a formal policy that memorializes' common prosecution practice; worry more about why there are still only two federal judges in American history who were or are of Native American descent."
That, and not the trading of eagle feathers, is the sorrowful American Indian story of 2011.