The Eagle Feather Law and State-Recognized Tribes

DaShanne Stokes

The 5th Circuit Court of Appeals ruling on August 20 is something for members of state-recognized tribes to celebrate.

In the ruling, the Court found that the U.S. government had failed to prove that denying Robert Soto, a member of the state-recognized Lipan Apache tribe, eagle feathers needed for his ministry advanced a compelling government interest. Soto had been arrested for having eagle feathers at a pow wow in Texas in 2006.

The Court also found that the government failed to prove that giving members of state-recognized tribes access to eagle feathers would in any way harm its relationship with federally-recognized tribes.

RELATED: Feather Dust-up: Why the DOJ Feather Policy Must Change

Under the current law, commonly referred to as the ''eagle feather law,'' referring to Title 50, Part 22 of the U.S. Code of Federal Regulations (50 CFR 22), only members of federally recognized tribes are allowed to obtain or possess eagle feathers and parts for religious or spiritual purposes. Others who are caught with eagle feathers without federal permits face imprisonment and fines of up to $250,000.

That’s what makes the Circuit Court’s decision a victory, but one that is far from complete. It is almost certain that the Department of Fish and Wildlife (USFWS) will appeal the Circuit Court’s decision.

That’s what happened in 2011 when U.S. District Judge Dee Benson ruled in US v. Wilgus (2009) that the way that the eagle law was enforced was not “the least restrictive means” for the government to advance its interests in protecting eagles. Benson’s findings would have allowed for the eagle feather permit system to be expanded to include non-Native Americans as well as members of state recognized tribes. But Benson’s decision was subsequently overturned.

Critics were quick to pounce on the 5th Circuit Court’s decision, presenting gross conjecture as fact. Recent articles by Angela Deines and Jonathan Stempel for example, claim that Court’s decision will make it harder to protect eagles.

The implication here is clear: protecting the rights of state-recognized tribes means hurting eagles.

RELATED: Eagle Feathers and the Imperialist Conquest of State Recognized Tribes

This is a not so subtle way of saying that the needs and rights of state-recognized tribes should not be observed, that the only way to protect eagles while also allowing for a Native American religious exception is to limit feathers and parts to members of federally
recognized tribes.


The government has never given actual concrete evidence that expanding the permit system would necessarily harm eagle populations. It has only asserted such claims through unfounded conjecture.

I for one think it’s high time to recognize the rights of state-recognized tribes. Those who need eagle feathers and parts for prayer and ceremony to practice and preserve their ways of life deserve the right to do so.

And federally recognized tribes should support state tribes on this. After all, if the 1940s to 1960s Termination era is any indication, federally recognized tribes are by no means immune from the threat of losing their recognition status. During Termination, over 100 tribes had their federal recognition status terminated.

Had that happened today under the current eagle law, those tribes would have faced the same situation that state tribes now face. They would have had no access to eagles.

It happened before. You can bet it can happen again.

And no one is immune.

That’s why federal tribes need to stand behind state-recognized tribes and support their access to eagles. We need to expand the eagle law to include state-recognized tribes. Because when one tribe is prevented from practicing and preserving their ways of life, all tribes are prevented from practicing and preserving their ways of life.

DaShanne Stokes is a Lakota author, speaker, and commentator. From 2005 to 2008 he was the founder and director of Religious Freedom with Raptors, a political interest group dedicated to improving the eagle feather law while maintaining its protections for eagles and federally recognized tribes. Follow DaShanne on Twitter @DaShanneStokes.

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nonfedindian's picture
Eagle feathers should be limited to federally-recognized tribes because most would agree that such tribes are actual tribes consisting of actual Native Americans and that these tribes have actual history as Indian tribes. There is no such agreement on state recognized tribes. I am sure there are legitimate state recognized tribes but there are also non-legitimate entities such as the Powhatan-Renape of New Jersey. Many of these so-called tribes obtain state recognition simply by making a lot of noise, presenting beliefs as fact and other dubious evidence, and accusing the state of racism if they don't get recognition. There is no vetting process, no one researches claims and it boils down to getting enough state legislators to side with them to get a bill passed. An example of the politicization of state recognition would be Virginia. Since the 17th century, two tribes had existed on state reservations and were treated by the state as legitimate Indian tribes (i.e. "state-recognized"). In the 80's, 6 more tribes raised enough of a fuss with the state legislature to get recognized without being subjected to any scholarly scrutiny. In the 90's those 6 tribes were in control of the state's Indian Council and recognition process. They instituted new rules that required demanding scholarly scrutiny of future recognition petitions - rules that that they were never subject to and that mirrored those of the federal government. (Those same six tribes are currently seeking federal recognition through federal legislation because they disagree with the BIA scrutiny.) Three other tribes, denied recognition via these rules, went around the Indian Council and won state-recognition from the state legislature - again, without any real scholarly scrutiny. Virginia's Indian Council has since folded. Other states scuh as Tennessee have had their own problems with recognition. My point is that states cannot be trusted and state-recognition as an Indian tribe is meaningless. As such, members of state-recognized tribes should not be allowed to own eagle feathers. It is unfortunate that real Indians who are members of state-recognized tribes will be left out but that is a reasonable price to pay to ensure the continued success of eagle population restoration efforts and to ensure that the limited amount of such feathers goes to those who truely deserve them.
Opechan's picture
@nonfedindian Oh great, another cultural imperialist (and thinly-veiled racist) talking about "Real Indians." Last time I checked, my people's creation story didn't involve any level of the U.S. Government. I hope you at least got a paycheck for writing this hit-piece. All of the groups you cited - the Powhatan Renape are descended from Virginia Indians who moved north for jobs - are those with Virginia Indian heritage, so I find your bias personally revolting. It is also substantively thin and ignorant to history. Dr. Helen C. Rountree, an actual scholar recognized for her research and expertise concerning the Virginia Tribes, supported their recognition efforts and continues to do so before Congress. In the '80s, the six non-reservated tribes were actually subjected to Dr. Rountree's scrutiny. If you actually did your research offline, or actually knew the communities you are defaming, this would be obvious. The most recently established Virginia tribal recognition process was fundamentally flawed at the outset. While I agree that the legislative recognition granted to the Patawomeck (one of the three groups) is questionable, a legislative workaround/amendment (not recognition) would have been necessary to cure the tribal and racial politics that tainted the Virginia recognition process. Your description of the dysfunctional Virginia Council of Chiefs (previously the Virginia Council on Indians) did reach its apogee with the recognition of the three recent tribes, but its problems really began before that. The VCC was excluively a Virginia tribal leadership entity, whereas the VCI represented all Native Americans in Virginia, period. Involving the VCC in the recognition process, while considerate, was an inherent conflict of interests. The mentality is that Indian or Tribal status is proprietary and creates competition for crumbs off of the state table. It would be the same conflict if in the federal process, a gaming tribe in North Carolina was allowed to determine the recognition of a North Carolina peitioner who could eventually compete with their gaming interests. (Except in real life, Lee Fleming of the Eastern Cherokee is allowed to do exactly this at the Office of Federal Acknowledgement. Zing!) Yes, states cannot be trusted with the recognition process. The federal government can't be trusted either. And anonymous internet posters, like you and me, can be trusted even less. Stokes has the right of it: If one of us isn't free, none of us are free. It's not a question of "if" you'll be next, it's "when."
nonfedindian's picture
Opechan - You at least got my point that states cannot be trusted with recognition. But you agree they can't be trusted, and you cite the Patawomeck as an example, so it stands to reason that allowing state recognized tribal members access to eagle feathers will result in non-Indians having access to eagle feathers. Other points - I know what the Powhatan-Renape claim as their history. I am not denying they have Virginia Native ancestry but they are nothing more than an extended family reunion. They became and existed as what they called a "Tribe" primarily on the work of one man, known to them as Chief Roy Crazy Horse. Their organization was little more than a cult of personality as evidenced by the fact that their organization has largely fell apart after his death without even having the power to rid themselves of a new self-proclaimed Chief, a local con-man who calls himself Crown Prince Emperor El Bey Bigbay. As for the six tribes, I guess they did have Rountree on their side. But those six tribes were in virtual control of the Council that established the stringent rules that never applied to them but did deny recognition to the three latest tribes - actions supported by Rountree who acted as an advisor to the Council. The rules they put in place are very similar to the federal rules but these six tribes never even tried the OFA route. Why is that? Because they knew they didn't stand a chance.
vandn's picture
I question how many of the Federally Recognized Tribes were granted this recognition through acts of Congress? My guess would be everyone except for those who have gained recognition since the 1970's! Anyone who has read, or studied what was done to the Indian population in Virginia understands why the current BIA process is difficult. We have suffered discrimination that no other State has placed on its ingenious people. Read what Walter Plecker did and you will gain a new understanding of our plight. The 6 tribes who gained state recognition and the 2 on reservations have kept close contact and intermarried throughout the years. The last 3 to be recognized weren't known of until the tribes began proceedings for federal recognition. Wayne Newton was a major factor for the Patawomacs gaining state recognition and the other two groups went through on their coat tails. Yes, there is a problem with state recognition process, but there is also a major one with the BIA's process. It is time for the legitimate tribes in Virginia to be federally recognized. The eight tribes you referenced are legit tribes, recognition is overdue for us. Virginia Indians; First to welcome and last to be recognized!