More than a century ago, a young Arapaho warrior murmured a prayer under his breath as he killed the rabbit he had captured earlier, then propped the dead animal onto a pile of sticks perched atop a large rock. He hunkered down next to the boulder, covered himself with a hide, and patiently waited for a bald eagle to investigate. As the eagle landed on the rabbit, the young warrior reached up and snatched the eagle’s talons, threw another hide over it and swiftly killed it with his hands. The raptor’s feathers, wings and hollow bones would play an important part in the tribe’s Sun Dance ceremony.
The description of this ancient ritual was passed on to Northern Arapaho tribal elder Jerry Redman by his grandfather, harkening back to when his tribe lived in northern Colorado near what is now Estes Park. Today, the Arapaho are divided into northern and southern branches, confined to reservations in Wyoming and Oklahoma. But tribal traditions endure, and although the eagles are now shot, rather than killed by hand, their ceremonial importance remains paramount.
The U.S. Fish and Wildlife Service has different priorities, however. Last year, the agency charged Winslow W. Friday, a Northern Arapaho, with violating the Bald and Golden Eagle Protection Act by shooting a bald eagle on the Wind River Indian Reservation in Wyoming for use in the Sun Dance. Congress banned killing bald eagles in 1940, then updated the law in 1962 to protect golden eagles as well, because they look like immature bald eagles.
In October, U.S. District Judge William Downes dismissed the charges against Friday, saying that while the government must protect eagles, it also has a compelling interest in preserving Indian tribes and their cultures. The ruling could set the stage for a Supreme Court battle pitting American Indian culture against the government’s mandate to protect the national bird.
Tribes across the West use eagle feathers for ceremonial purposes. Yet for the most part, the only legal way to obtain the feathers is from the National Eagle Repository in Commerce City, Colo. The repository is the collection point for eagles killed by cars, power lines, starvation, poisonings and illegal shootings. American Indians can apply to receive feathers or whole birds for use in a variety of religious ceremonies.
Using these "carrion birds" for ceremonies, though, is unacceptable to many Arapaho tribal elders. The elders maintain that religious ceremonies require that eagles be taken in a prayerful and traditional way. The fact that Friday shot rather than trapped the eagle is irrelevant, says Redman: "We live in the modern day and don’t use bow and arrow." The rifle was simply a tool, he says; Friday’s prayer and attitude are what mattered.
Besides, the demand for eagle parts and carcasses far exceeds the supply at the repository, meaning tribes may have to wait six months for feathers and three and a half years for whole bodies. And although the U.S. Fish and Wildlife Service has the power to issue lethal take permits for eagles, it has made little effort to inform American Indians about the availability of such permits, which are rarely issued to tribes and never to individuals.
In August 2006, Berra Neil Tawahongva, a Hopi who was charged with violating the Migratory Bird Act by possessing a golden eagle, argued that requiring him to get a permit infringed upon his right to freely exercise his religion. But the 9th Circuit Court in Arizona rejected the argument.
The federal government argued that requiring permits is not an undue burden, and that the unrestrained killing of eagles by American Indians could result in too many killings, given the high demand and limited supply.
Ceremony vs. conservation
But Downes, who is based in Casper, said that although the nation’s bald eagle population has increased to the point that the U.S. Fish and Wildlife Service is considering delisting the bird, the agency has done nothing to alleviate the law’s burden on Indian religious practices.
"(It) is clear to this Court that the Government has no intention of accommodating the religious beliefs of Native Americans except on the law’s own terms and in its own good time," the judge ruled.
"This is an important ruling because it emphasizes the sanctity of the Sun Dance and the obligation of the Arapaho people to nurture our sacred ceremonies for future generations," says Nelson White Sr., a Northern Arapaho Business Council member.
Redman and White emphasize that there is no danger of an unrestrained "open season" on eagles. "The Creator gave the eagle to the Arapaho," says Redman. "We want more eagles. We want them to flourish." The tribe might take a single eagle for a Sun Dance ceremony in a year, then re-use feathers, wings and bones turned into ceremonial whistles.
Because Downes’ ruling within the jurisdiction of the 10th Circuit conflicts with the 9th Circuit’s ruling in the Hopi case, the stage is set for a showdown in the U.S. Supreme Court, says Chris Schneider of the Baldwin & Crocker law firm in Lander, which wrote a "friend of the court" brief in defense of Friday.
Stu Healy, assistant U.S. attorney, acknowledges the conflict, but says it would be "very premature" to predict a Supreme Court showdown. The case must first go through the appeals process, and the government is still considering an appeal.
Meanwhile, the Iowa Tribe of Oklahoma and the Zuni Pueblo of New Mexico have sidestepped the legal hassles by building and operating their own eagle aviaries. The Wildlife Service supplies the aviaries with eagles that have been injured to the extent that they cannot be released back into the wild. The Iowa and Zuni then rehabilitate and care for the birds, collecting feathers as the eagles molt, much as tradition dictates. Other tribes, like the Arapaho, need the entire bird for ceremonies, so the aviary approach doesn’t work for them.
The author is based in Casper, Wyoming, and covers natural resource issues in the West.