If Obama Is Serious About American Indians, He'll Offer More Than Eagle Feathers

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

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Reuters

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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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