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Conservation Clash and the Case for Exemptions: How Eagle Protection Conflicts With Hopi Cultural Preservation

Published online by Cambridge University Press:  08 November 2007

Sarah Fenstemaker
Sarah Fenstemaker
Affiliation:
Princeton University. Email: sfenstem@princeton.edu
Rights & Permissions [Opens in a new window]

Abstract

A divide has emerged between traditional allies as environmental protections increasingly constrict efforts to support the preservation of cultural heritage. The U.S. Fish and Wildlife Service addressed this debate by hosting an open forum on the current policies for the hunting of migratory birds. Proposed changes could end the granting of exemptions to Native American tribes, who use golden eagles and feathers in religious ceremonies, and would destroy the cultural and religious significance of the birds for the tribes. Such stringent environmental legislation not only threatens to undermine the importance of cultural preservation but also neglects an opportunity to strengthen the broader conservation movement by increasing involvement through the valuing of both the physical existence of a species and also its broader cultural significance. A study of the Hopi tribe of Arizona demonstrates the importance of flexibility and exemptions.ACKNOWLEDGEMENTS: I would like to thank Alexander Bauer for his guidance and support throughout the process of researching and writing this article.

Information

Type
Research Article
Information
International Journal of Cultural Property , Volume 14 , Issue 3: Special Issue: Hunting as Heritage , August 2007, pp. 315 - 328
Copyright
© 2007 International Cultural Property Society

INTRODUCTION

For generations, young male members of the Hopi Native American tribe have scaled the cliffs in Arizona's Wupatki National Monument in search of golden eaglets to use in a long-practiced religious ceremony that is vital to the tribe's cultural identity. After years of exclusion from their traditionally sacred grounds, the Hopis attempted to regain admittance in 1999 but were again denied access to the park's eaglets. Park officials argued that the general hunting permit the tribe members presented did not apply to national parks or monuments, where the taking of wildlife is prohibited except when it contributes to the preservation of a species. The Hopis withdrew their application, but the Department of the Interior's assistant secretary for the Fish and Wildlife Service rescinded the rejection and announced a plan that would allow the Hopis to take and kill a limited number of golden eagles for their religious ceremonies despite the legal protections provided by the wildlife reserve status of national parks.1

A draft detailing this proposal was released as the Clinton administration left office in January of 2001 and heralded a shift toward the consideration of cultural preservation in conservationist legislation. The proposal did more than signal an increasingly inclusive system of protection, however; it also brought national attention to the Wupatki case when it alarmed many ecological conservationists, who feared that allowing the tribe to hunt on nationally protected land would set a dangerous precedent. The conservationists' concerns about the handling of future requests stemmed primarily from the draft's concession that “it is possible that the National Park Service (NPS) could receive requests from other Native American tribes or other groups to collect resources from Wupatki National Monument or other units of the national park system.”2

NPS Environmental Assessment, Religious Ceremonial Collection.

The U.S. Fish and Wildlife Service, the federal agency responsible for managing and preserving the nation's wildlife, recently addressed the debate by hosting an open forum in 2006 and inviting public comment on the current policies for the hunting of migratory birds.3

U.S. Department of the Interior, Notice of Intent to Prepare.

A draft proposal for a Supplemental Environmental Impact Statement will be created from the initial public response and is scheduled to be released for further comment in the fall of 2007. Among the proposed changes for the draft is an end to the secretary of the Interior's authority to regulate the hunting of migratory birds and to grant exemptions to tribes, like the Hopis, who use and sometimes kill golden eagles in religious ceremonies.4

U.S. Department of the Interior, Migratory Game Bird Hunting Regulations.

Under the current system, the Migratory Bird Act and the U.S. Fish and Wildlife Improvement Act empower the secretary of the Interior to determine when the “hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage or export of any … bird, or any part, nest or egg” can take place.5

U.S. Department of the Interior, Notice of Intent to Prepare.

If certain management alternatives are accepted and the secretary of the Interior loses the ability to grant religious exemptions, tribes like the Hopis will be denied their only available route for obtaining the eagle parts and feathers so essential to sustaining their traditional practices, thus destroying the cultural and religious significance that the birds hold for the tribes. This potential change is a radical shift from the 2001 proposal. Instead of expanding the areas where eagles can be collected to include national parks, which often have a long-standing significance as sacred land, some proposed changes would effectively eliminate all access to eagles and end even the use of feathers that have been passed down among generations in religious tribal ceremonies.6

At the heart of this division and the subsequent debate is the struggle between the seemingly irreconcilable ecological interests of protecting wildlife and preserving the national park system, and the cultural interest of ensuring religious freedom and Native American rights. The strict posturing is reflected in the interpretation employed by Wupatki park officials to keep Hopi tribe members out of the park; they decided that the preservation of species exemption applied only to continued physical existence or increasing biological knowledge. The Hopis, however, hold a more intangible view in which the eagles are believed to possess spiritual significance beyond their physical being.7

For this tribe the continued use of the birds in their religious ceremonies is an essential part of maintaining their beliefs about the birds, and through them, their relationship with the spirit world. Although removing the golden eagles from the protected land would not increase objective scientific knowledge, it would certainly preserve the Hopi's culture and the tribe's unique understanding of the birds. As such, the Hopi take of golden eagles is arguably an expanded form of preservation.

Extending the current concept of conservation beyond environmental constancy and toward the incorporation of cultural preservation may give greater meaning to the conservationist movement. Provisions like those created in the 2001 draft rule, which may now be threatened by the upcoming proposal, provide a route for the careful consideration of individual cases. They help prevent the unfortunate contortion of well-intentioned conservationist legislation, which can be used to undermine its original protective purpose.

Although a direct line can be drawn between the Hopi decision and the movement for a new draft proposal, ironically, the Hopi case itself is a prime example of the need for exemptions and the reasons to be wary of potential changes. Without the possibility of a special permit granted by the secretary of the Interior, there is a serious risk of undermining the true meaning of hundreds of years of well-intentioned legislation and irrevocably damaging cultural history in the process.

A BRIEF HISTORY OF THE HOPIS AND EAGLE PROTECTION

Although the Hopi case has reinvigorated recent debate about imbuing animals with a meaning beyond their physical existence, the general concept is nothing new, even in mainstream American culture. In 1783, filled with pride for their newly independent nation, the Continental Congress adopted the bald eagle as America's national symbol. By 1940 the bald eagle's once flourishing population had dwindled to such a dangerously low level that the U.S. Congress again allocated a special significance and protection to the birds. The legislative result was the Bald Eagle Protection Act of 1940 that served to guard from extinction a species which had achieved significant cultural meaning and was, according to the act, “no longer a mere bird biological interest but a symbol of the American ideals of freedom.”8

Bald Eagle Protection Act of 1940, 16 U.S.C. 668-668d, 54 Stat. 250, as amended—approved June 8, 1940, and amended by P.L. 86-70 (73 Stat. 143) June 25, 1959; P.L. 87-884 (76 Stat 1346) October 24, 1962, P.L. 92-535 (86 Stat. 1064) October 23 1972; and P.L. 95-616 (92 Stat. 3114) November 8, 1978.

For the Hopis eagles are not a merely a source of nationalistic pride; they represent an essential link between the tribe and the spirit world.9

Every spring young men brought the golden eaglets they gathered in Wupatki back to their reservation where the eaglets were nurtured until summer. Once they mature, the eaglets are smothered in a religious ceremony that the Hopis believe frees the spirits of the eagles and enables them to carry messages between the physical and spiritual worlds.10 The cyclical relationship between eagle and tribe must be renewed annually through the practice of eagle gathering to sustain a connection between the two worlds for the next generation of Hopis.11 This link is so essential to the tribe's cultural and religious identity that Eugene Kay, chief of staff for the Hopi chairman, insisted that the gathering of these eagles is “the most important of the ceremonial obligations of the clans and religious societies at Hopi.”12

Ironically, one of the main obstacles for the Hopis in using golden eagles for their own cultural ceremonies is a link between the birds and America's national symbol, the bald eagle. In 1962 Congress amended the Bald Eagle Protection Act to include golden eagles.13

Eagle Amendments Act of 1962.

The change was not a reaction to diminished golden eagle populations, or any special significance of the birds, but was only a means of preventing the accidental killing of bald eagles, which are virtually indistinguishable from golden eagles until the former mature and develop their distinctive white crown and tail feathers.14 In effect, the act protected the culturally insignificant golden eagles only to protect the bald eagles, which were culturally significant to Americans. Nonetheless, it legally prohibits the “take, possession, sale, purchase, barter, offer to sell, purchase or barter, transport, export, or import, of any bald or golden eagle, alive or dead, including any part, nest, or egg, unless allowed by permit.”15

Bald Eagle Protection Act of 1940.

Based on the rigorous definition of take, which includes shoot, shoot at, poison, wound, kill, capture, trap, collect, molest, or disturb, many tribes were prevented from using even eagle feathers in their cultural ceremonies.16

Bald Eagle Protection Act of 1940.

Restricting the use of eagles and eagle parts has a profound affect on the culture and religion of many Native American tribes. The Hopis, for example, use golden eagles' feathers in all their religious ceremonies and rituals.17 In ruling on an earlier related case, Judge Edward C. Reed emphasized the traditional religious significance of eagles throughout Native American tribes, “experts in comparative religion have likened the status of the eagle feather in Indian religion to that of the cross in the Christian faith.”18

U.S. v. Thirty-Eight Golden Eagles or Eagle Parts, 649 F. Supp. 269 (D. Nev. 1986).

Along with the Bald and Golden Eagle Protection Act (BGEPA), the main eagle protection is the Migratory Bird Treaty Act of 1918. Both specifically protect the bald eagle, whereas BGEPA also extends to golden eagles.19

However, BGEPA allows the secretary of the Interior to grant special exemptions to certain individuals by issuing permits. The permits allow for the possession of eagles and eagle parts for scientific and exhibition purposes or to protect wildlife and agricultural interests such as the seasonal protection of domesticated flocks and herds.20 A 1962 amendment, which extended protection to golden eagles, also recognized the special significance of these birds for Native American tribes and allowed the secretary to grant permits to members of these tribes to take eagles for use in religious ceremonies. Although the amendment granted an exemption from the regulations of BGEPA, it simultaneously abrogated all earlier treaties granting Native Americans permission to hunt the birds and therefore limited the available channels of access to the birds.21

In 1994, President Clinton recognized the important role of the eagle feather in many Native American religious and cultural practices. In a Memorandum to the Heads of Executive Departments and Agencies, he directed the leaders to “work cooperatively with tribal governments and to reexamine broadly their practices and procedures to seek opportunities to accommodate Native American religious practices to the fullest extent of the law.”22

There is currently a repository for eagle feathers in Colorado managed by the U.S. Fish and Wildlife Service. All eagles found dead are sent to the facility from which eagles, eagle parts, and eagle feathers are distributed to the Native American tribes who request them for their religious and ceremonial purposes.23 Because permits to take new eagles are rare, most eagle remains are obtained through this federal repository. All forfeited or abandoned eagles are subject to the federal property regulations, and even gifts and inheritances of eagle feathers require a permit. Essentially, no one can possess any eagle part without a permit regardless of how they acquire the part. Even with this restriction, only members of federally recognized tribes may use eagle parts in religious ceremonies.24 Although the permit process is relatively speedy, the high demand for feathers and limited supply can lengthen the entire procedure. In a recent year, there were more than 5000 requests for the 1000 eagles the repository receives annually.25

Despite these strict standards, the Hopi Indians still held a valid permit for the annual take of 40 golden eagles in northeastern Arizona; but the permit did not specifically mention Wupatki.26

The permit was effectively an exception to the protections provided by the Bald and Golden Eagle Protection Act and the Migratory Bird Act of 1919, which covers not only eagles but all migratory birds. The only remaining hurdle for the tribe was presented by the park rangers who denied the young men access to the park grounds and the eagles within because the permit did not apply to a national monument or park, except for the purpose of research that would contribute to the preservation of a species.

The power to “provide for the destruction of a species that may be detrimental to the use of any park area” invests park officials with the authority to exterminate an entire species from park grounds if they feel that other species in the area need more protection and therefore undermines the contention that national reserves must be left completely untouched. Defenders of such authority argue that active conservation requires the prevention of harms; the secretary is not destroying the values for which the park exists in eliminating harmful animals but is instead eliminating a source of harm.27

If this is accepted practice, it is not out of line to suggest that the elimination of roughly a dozen golden eagles a year is not harming the purpose of the park but is in fact preserving the culture of the Hopis and continuing the purposes for which the park was protected.

To understand the Hopi ritual, it is also necessary to recognize the essential role of the Wupatki grounds, which could not be meaningfully substituted for unprotected terrain. The Hopi collect eagles from the park because it encompasses their traditionally sacred land and is as much a part of religious rituals as the eagles themselves.

The tribe believes that golden eagles embody the spirits of their ancestors. Accordingly, sacred clan areas are often close to ancient Hopi ruins and burial grounds.28

Wupatki is no exception; and in fact, Calvin Coolidge declared the grounds a national monument in 1924 to preserve “two groups of prehistoric ruins built by the ancestors of a most picturesque tribe of Indians still surviving in the United States, the Hopi or People of Peace.”29 This pronouncement has led to an ironic warping of intentions: Although purportedly protecting Hopi history from the intrusion of modern America by declaring the sacred grounds a national monument, the U.S. government separated the tribe from the land and prohibited them from continuing rituals that are essential to their conception of their past and present. If the true purpose of the declaration was the protection and preservation of Hopi culture, it should not be used to prevent the tribe from continuing these traditions, especially because the federal government has no special interest in prohibiting the take of golden eagles in the larger Wupatki region (as evidenced by the granting of a permit for forty eagles in northeastern Arizona). The only remaining dispute in 1999 was over the use of Wupatki lands because of the wildlife reserve status that comes with designation as a national park.

The physical structures of the 900-year-old red-rock settlements are federally protected and have become a tourist attraction, but they will maintain greater purpose and meaning if they continue to be used by their creators' direct descendents, the Hopis. Ironically, some Wupatki park officials point out that this may all soon become a moot point because many longstanding nesting sites have not been used by eagles in recent years, possibly as a result of the tourist intrusion into the nearby ruins.30

THE LEGAL PRECEDENT FOR SPECIAL EXEMPTIONS

Although the potentially precedent-setting response to the Hopi case helped it gain national exposure, it was not the first of its kind. Earlier cases, involving BGEPA and other conservationist legislation, established the legal framework in which the Hopi case must be considered. Although not every case has been successful, the precedents demonstrate both the need for and success of a system of case-by-case consideration.

MAKAH WHALING

The Hopi struggle is particularly reminiscent of the legal battle faced by the Makah tribe of Washington State only a few years earlier. The Hopis sought clearance to hunt eagles in a national park, whereas the Makah desired rights to hunt whales in the Pacific Ocean. Archaeological evidence indicates that the Makah have hunted whales for at least 2000 years, whereas tribal elders claim they have hunted the animals forever. At some points during this long history, the whale hunt provided as much as 80% of the tribe's subsistence needs. Like that of the Hopis, the hunt was marked by ritualized ceremonies; hunters prepared themselves for their journey by bathing themselves in the cold Pacific waters and rubbing their skin raw with barnacles and mussels, and hunting rituals were used to pay tribute to the deceased. Just as the whole Hopi village was involved in nurturing the eaglets before sacrifice, the entire Makah community played a role in the whale hunting ceremonies. While their husbands were away on the hunt, the Makah wives remained motionless in their beds, neither eating, sleeping, nor talking.31

Progressive Animal Welfare Society (PAWS). “Gray Whales in Peril.”

By the early twentieth century, the Makah tribe virtually ended their traditional hunt and eventually abandoned it completely because commercial whaling threatened the animal's population. Still, the tribe maintained special rights to the whales because of the Treaty of Neah Bay, the only Native American treaty explicitly granting the right to hunt whales, signed with Washington territorial governor Isaac Stevens in 1855. In 1980s, after years of financial strain, Makah elders sought to return to a source of earlier prosperity: the whale trade.32

The tribe had recently undergone a cultural renaissance spurred by the excavation of Ozette village in the 1970s and the discovery of more than 50,000 artifacts pointing to the Makah's past as whalers. Members took a renewed interest in a return to whaling as well as a revival of their language and culture; a desire that led to the creation of the Makah Cultural and Research Center.33 However, tribe members were prevented from recommencing their hunt by both the U.S. Endangered Species Act, which protected both the humpback and grey whales, and the International Whaling Commission, which in 1986 has issued a world ban on all commercial whaling.34

The Makah found themselves limited by the whale's placement on the endangered species list despite a near historic high gray whale population of 22,000 in 1994 (compared to between 4000 and 5000 in the 1960s).35

David Sones, the assistant Makah Fisheries director, successfully appealed to the U.S. government to have the gray whale removed from the Endangered Species List, and the population is currently estimated around 27,000, with a sustainable annual yield of 407 to 670 individuals.36

Many whaling opponents have been quick to protest the Makah's legal right to hunt by dismissing their treaty and political sovereignty. However, the allowances provided by the Treaty of Neah Bay are not simply special allowances benevolently granted by the U.S. government. Members of the Makah tribe are not solely U.S. citizens, they are also members of the Makah Indian Tribe, and as such they possess the additional rights particular to that standing, including the right to hunt whales. Native American treaties have the same legal standing in the United States as treaties with foreign nations, and these rights extend indefinitely unless specifically abrogated by Congress, such as when the species in question is protected as endangered. Once the whale was removed from the endangered species list, the Makah tribe had every right to complete their hunt. In fact, the Treaty of Neah Bay was signed before the United States worked with the International Convention for the Regulation of Whaling.37

A similar respect for the independence of Native American tribes should be a factor when considering the Hopi case, and their legal autonomy increases the practicality of a channel for the consideration of individual circumstances.

CHANGES TO BGEPA

Native Americans met with some initial success in their attempts to circumvent BGEPA restrictions by claiming they had preserved hunting rights with early treaties. In United States v. Abeyta, New Mexico's district court dismissed a government action against Jose I. Abeyta, a Native American who hunted and killed a golden eagle in aboriginal land. Abeyta argued that he was protected by article IX of the 1948 Treaty of Guadalupe Hidalgo, which guaranteed that Mexican nationals residing in lands ceded to the United States would be “secured in the free exercise of their religion without restriction.”38

However, a similar claim was denied later that same year in United States v. Dion in which the Supreme Court upheld the conviction of a member of the Yankton Sioux tribe who was charged with killing four golden eagles on reservation land. Like Abeyta, Dion relied on an earlier treaty, the 1858 treaty with the Yankton, for protection. The treaty ceded 400,000 acres of tribal land to the United States but did not restrict tribe member's rights to hunt on the land and even preserved the tribe's rights to hunt bald and golden eagles for noncommercial purposes.39 In his opinion Justice Marshall stated, “Congress's 1962 action … reflected an unmistakable and explicit legislative policy choice that Indian hunting of the bald and golden eagle, except pursuant to permit is inconsistent with the need to preserve those species.”40

U.S. v. Dion, 762 F.2nd 674 (8th Cir. 1985), 476 US 734 (1986).

The justices decided that in passing the BGEPA, Congress intentionally abrogated existing treaties between Native American tribes and the U.S. government. With their earlier arrangements voided, the same tribes whose rights to take golden eagles for religious purposes were affirmed in BGEPA also lost any legal channel for obtaining the eagles and eagle parts except through the U.S. Department of the Interior.41 This broad interpretation of the act clearly demonstrates the advantage of the Secretary of the Interior's exemption.

Even after the treaty issue was decided, complaints remained that the restrictions imposed on the tribes' religious rights. Congress passed the Religious Freedom Restoration Act, which establishes that government can only burden the free exercise of religion when it has a “compelling state interest” and is using the least restrictive means possible.42

The act was eventually invalidated by the supreme court but not before the “least restrictive means” clause was challenged in United States v. Jim. The supreme court upheld the conviction of a Native American who had killed two golden eagles and two bald eagles without a BGEPA permit. Although the court agreed with Jim that BGEPA significantly burdened the free exercise of Jim's religion, it ruled that such restrictions were employed for a “compelling government interest,” the preservation of eagles.43

RETURN TO THE HOPIS: CONCERNS ADDRESSED

By the time the Hopi case emerged, it was clear that the tribe would not be able to avoid the BGEPA regulations or wildlife reserve status because of their earlier treaties with the U.S. government. The court has set a precedent of strict compliance to these regulations; and if the secretary's exemptions are eliminated, tribes like the Hopi will have no other legal options. Despite the irony of denying the Hopi's use of Wupatki, the case would likely have disappeared if the U.S. Fish and Wildlife Service had not overturned the park superintendent's decision. The rescinded rejection and the subsequent draft changes have opened a multifaceted debate involving both questions of Native American religious and cultural rights and concerns over ecological conservation. Interestingly, the debate pits traditional conservationist allies against each other by bringing into question which preservation is more essential: the cultural continuation of a tribe or the pristine physical existence of an animal species?

In weighing the values of the respective forms of preservation, it may be necessary to step back and study the larger picture. The purpose of conservationist legislation is to prevent damage to an animal species, but the golden eagle population was not threatened by the loss of a few eagles in a ritual that has continued for so long that the small hunt has essentially developed into a part of the ecological landscape. A more significant human threat to the golden eagle population comes from intense shooting and poisoning by ranchers in the western United States. In 1969 it was determined that “for over 20 years at least 1000 and perhaps 2000 golden eagles have been killed from airplanes each winter and spring in far-western Texas and southeastern New Mexico.” More eagles are killed annually through accidental electrocution from contact with power lines and unintentional poisoning from the ingestion of lead bullets in prey than die from Native American harvest.44

Although a dozen or so golden eagles seem insignificant when compared with the hundreds that are killed through accidental contact with humans each year, ecologists present an important concern about the potential long-range effects of granting exemptions to the national park system. A significant portion of the ecologically based distress, however, is rooted in the unfortunate link between bald and golden eagles created when the later was included in the BGEPA. Before the passage of the Endangered Species Act of 1973, there were only 417 breeding pairs of bald eagles. Estimates today put the number at around 10,000 pairs, a dramatic change that led to the bald eagle's removal from the endangered list.45

U.S. Department of the Interior, Bald Eagle Soars Off Endangered Species List.

Recent population counts for the golden eagle are unavailable, probably because they are so abundant. A 1975 estimate put the North American population at around 100,000.46 Still, the Hopis are not seeking to take advantage of their special permission; although they hold a standing federal permit to gather up to 40 eaglets a year, the Hopis take only what they need, usually around 15 of the young birds annually.

Even so, the 2001 draft rule and the protections provided for endangered species ensure that if the golden eagle's population dropped low enough to require federal protection, it would be provided and the Hopis would lose permission to hunt the birds. Moreover, as the environmental assessment states, “before a permit could be issued, the Superintendent would conduct appropriate analyses under the National Environmental Policy Act, the NPS Organic Act, and related acts to ensure that this activity would not impair park resources.” The investigation into potential effects on the park and the eagles would be thorough and “would likely include an evaluation of local (in-park) and regional golden eagle populations and trends; golden eagle breeding status, activity, and productivity, and available breeding habitat.”47

Rosalyn Fennell, the director of national parks programs at the Wilderness Society, voiced the broader ecological concern that the Hopi case could portend “the opening of the floodgates, where any tribe with ancestral connection to any part of a national park can take some animal.”48

Jeffrey Ruch, executive director of Public Employees for Environmental Responsibility, similarly warned, “It may be Wupatki today, but it's likely to be Yellowstone tomorrow.”49 Again, this concern is drawn from the 2001 draft proposal; but the draft itself specifically states that the rule applies exclusively to the Hopi Tribe and “any other similar requests received in the future to allow collection of resources in other national park system units by Indian tribes for religious ceremonial purposes are beyond the scope of this environmental assessment. Such proposals would be addressed individually on a case-by-case basis on their own merits.”50

Given the U.S. Fish and Wildlife Service's conservative history, the assumption that granting the Hopis their take threatens overall conservation is unfounded. Pursuant to the BGEPA, the Department of the Interior established regulations for the granting of golden eagle taking permits to Native Americans. Among the strictly enforced requirements for each applicant is “a certification of enrollment in an Indian tribe that is federally recognized under the Federally Recognized Tribal list of 1994.”51

50 C.F.R. 22.22.

Applications for the use of any eagle part, including feathers, are submitted to the Fish and Wildlife Service's Migratory Bird Permit Office where they are reviewed and forwarded to the Bureau of Indian Affairs, which again reviews the tribal affiliations of applicants. Only those who can demonstrate membership in federally recognized tribes, and who are participating in ceremonies, are granted permits.52 The entire permit process for the use and return of a single feather can take many months; but it is the only way in which Native Americans may possess eagles, their parts, or their feathers.53

Furthermore, in Rupert v. United States Fish and Wildlife Service, the circuit court upheld the limited opportunity for exemption under the act by refusing to extend the Native American exemption to those who merely practice a Native American religion. Accordingly, a pastor and members of his congregation were denied a BGEPA permit for the possession of even golden eagle feathers because they were not ancestrally linked to a federally recognized tribe.54

In its decision, the court again emphasized the need to maintain the delicate balance between culture and ecology:

The exemption … does not merely serve the government's interest in (1) protecting Native American religion and culture and (2) protecting a dwindling and precious eagle population; it sets those interests in equipoise. Any diminution of the exception would adversely affect the former interest, but any extension of it would adversely affect the latter.55

Rupert v. U.S. Fish and Wildlife Service, 957 F.2d 32 (1st Cir. 1992)

A system of strict regulation has been established, and by all accounts would continue. As a last precaution, the final step in the permitting process lies with the Fish and Wildlife Service, which is referred all applications that have passed the affiliation and ceremonial requirements. Final approval is granted only after a determination is made that the proposed taking “is compatible with the preservation of the bald and golden eagle.”56

50 C.F.R. 22.22.

On the other side of the debate are those who voice concerns that denying the Hopis the right to take the golden eaglets of Wupatki national park shows a disregard for legislative intentions concerning religious freedoms. In the 1978 American Indian Religious Freedom Act, congress made it clear that it had a vested interest in preserving Native American culture wherever possible:

Henceforth it shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise traditional religions … including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites.

Although this legislation created no judicially enforceable rights, it does encourage federal agencies to make reasonable accommodations for the practice of Native American religions.57

The ideal is based in the Free Exercise Clause of the First Amendment of the Constitution, which allows the granting of religious exemptions for generally applicable laws in the interest of accommodating freedom.

Yet another faction has emerged, and its proponents present a potential resolution to the current divide. Supporters endorse a view based on proposals created for the coexistence of parks and people in less developed nations and seek to accommodate the needs of local people within a strict protectionist model. A number of social scientists warn that one of the major problems facing national parks and general biodiversity is the U.S. park system model, which they term the Yellowstone model. They claim that this model excludes the local and indigenous people from use of and involvement in the parks.58

The system benefits the developed country's broader interests, but only at the expense of the local people, and often results in ineffective biodiversity protection.

Instead, a parks and people approach seeks to accommodate both the parks and locals by incorporating community-based conservation that promotes local involvement and control in park decision making, and ensures conservation “by meeting social and economic needs of local people through agroforestry, forestry, tourism, water projects, extractive reserves, and wildlife utilization.”59

Involving local people, like the Hopis, in the care of the park would serve two purposes. First, it would help preserve Hopi culture and tradition by maintaining the link between the current tribe members and their past. This connection between the park and surrounding people would in turn foster a desire to protect and care for the park's resources, and therefore serve a preservationist purpose.

CONCLUSION

In 1924 President Coolidge protected the Wupatki ruins because “the public interest would be promoted by reserving these prehistoric remains as a National Monument together with as much land as may be necessary for the proper protection thereof.”60

The public interest must again be served, and the Hopi's interests protected, through the preservation of the tribe's tradition as a new sort of national monument, one that is given value and purpose through its continued existence. As long as the proper ecological protections are in place, as they are in this case, there is value in looking beyond ecological resources. Cultural heritage and diversity are valuable resources in their own right, and it is time to consider the preservation of these cultural resources.

Those who propose radical changes to the permitting process cite the need to support strong environmental legislation. However, before we blindly follow a strict and widely applied approach to ecological conservation, we must take a moment to consider the affect of these regulations on cultural and religious preservation for Native Americans. The same protectionist ideals awarded to early Americans in ensuring the physical continuation of a national symbol may now be threatened for Native American tribes who desire the cultural continuation of one of their most important symbols, the golden eagle. At issue in this case is not only the exemptions granted for a single tribe but the establishment of a critical way of approaching conservationist decisions. Although the focus on physical preservation is both admirable and necessary, the chance has emerged to strengthen the preservation movement by expanding the resources we choose to protect. The golden eagle can again follow the path of the bald eagle and once more take on an important symbolic meaning. As U.S. Fish and Wildlife Service Director H. Dale Hall noted when the bald eagle was recently removed from the endangered species list, “It's fitting that our national symbol has also become a symbol of the great things that happen through cooperative conservation.”61

U.S. DOI, Bald Eagle Soars.

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