On October 12, 2012, the Department of Justice (DOJ) issued a memorandum from the Attorney General captioned “Possession or Use of the Feathers or Other Parts of Federally Protected Birds for Tribal Cultural and Religious Purposes” (herein the Policy). The Policy is, in essence, an internal DOJ guidance document on the exercise of prosecutorial discretion by U.S. attorneys and other DOJ officials. It “formalizes and memorializes the longstanding policy and practice of the Department of Justice.”
The “longstanding” policy referenced above includes a policy statement on Indian cultural and religious use of migratory bird feathers and parts, which was issued in 1975 by Secretary of the Interior Rogers C.B. Morton, and which has since come to be known as the “Morton Policy.” The Policy states that the Morton Policy “has guided the federal government’s approach to enforcement of federal laws protecting birds ever since it was issued” but also notes that there “continues to be some uncertainty” regarding enforcement of such laws in the context of cultural and religious activities of members of federally recognized tribes. The new Policy is intended to ensure that DOJ exercises prosecutorial discretion in a way that is consistent with the Morton Policy and “to clarify certain issues not expressly or fully addressed in the Morton Policy.”
The Policy includes specific standards for prosecutorial discretion, set out in five bullet points, which we quote here. A member of a federally recognized tribe will not be subject to prosecution for the following types of conduct:
• Possessing, using, wearing, or carrying federally protected birds, bird feathers, or other bird parts
• Travelling domestically with federally protected birds, bird feathers, or other bird parts or, if tribal members obtain and comply with necessary permits, traveling internationally with such items
• Acquiring from the wild, without compensation of any kind, naturally molted or fallen feathers of federally protected birds, without molesting or disturbing such birds or their nests
• Giving or loaning federally protected birds or the feathers or other parts of such birds to other members of federally recognized tribes, or exchanging federally protected birds or the feathers or other parts of such birds to 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. Although no compensation may be provided and no charge made for such feathers or other bird parts, tribal craftspersons may be compensated for their labor in crafting such objects.
The Policy expressly states that tribal members are covered regardless of whether they have a permit from the U.S. Fish and Wildlife Service. The Policy does not apply to persons who are not members of federally recognized tribes. The DOJ will continue to prosecute tribal members and non-members for violating federal laws that prohibit killing eagles or other protected birds, or the buying or selling of feathers or other parts of protected birds.
The explanation given in support of the Policy is a balancing of interests – the national interest in enforcing federal laws that protect birds, and the interests of tribes and their members to practice their religions and preserve their cultures. Federal wildlife laws cited are the Bald and Golden Eagle Protection Act; Migratory Bird Treaty Act; Lacey Act; and Endangered Species Act.
The laws and other sources of authority cited in support of protecting the cultural and religious activities of tribal members include the Bald and Golden Eagle Protection Act (Indian religious purposes exception); American Indian Religious Freedom Act; Executive Order 13007 (1996) (Indian Sacred Sites); Presidential Memorandum on Policy Concerning Distribution of Eagle Feathers for Native American Religious Purposes (1994); Executive Order 13175 (2000) (Consultation and Coordination with Indian Tribal Governments); Presidential Memorandum on Tribal Consultation (2009);
and several court decisions. The Policy also mentions treaties, the First Amendment to the U.S. Constitution, and the Religious Freedom Restoration Act. The Policy frames the tribal interests in terms of national policy, saying “accommodating these tribal interests is integral to the federal commitment to foster tribal self-determination and self-governance.”
Please let us know if we may provide additional information regarding the Department of Justice Policy.