For many Americans, a mere rendering of an eagle can prompt patriotism. But for thousands of Native American tribal members, only an actual eagle can serve as an irreplaceable sacred connection to an ancient spiritual realm. Several tribal customs can survive only with real eagle feathers, talons, and parts: natural religious resources that are in high demand and burdened by an unsustainable governmental system.
Kathryn Kovacs, an assistant professor at Rutgers Law–Camden, where she teaches a course on natural resources law, has not only researched the legal and religious implications of this uniquely American problem, but has proposed a solution for the federal government that involves returning authority to tribal governments.
“If the people who run the system put their minds to it, they can make it work,” says Kovacs. “This could have benefits to tribes and the government.”
In her article, “Eagles, Indian Tribes, and the Free Exercise of Religion,” which will be published in the Loyola of Los Angeles Law Review this month, Kovacs delves into the complexities surrounding why more than 6,000 tribal members are on a waiting list for eagles for religious purposes and how this backup is contributing to a now thriving black market.
Established in 1940 by the U.S. Congress, the Bald Eagle Protection Act, amended in 1962 to include protection for golden eagles, addresses the species’ limited population by making it illegal for anyone without a permit to possess them or their parts. The Act includes an exception for “the religious purposes of Indian tribes.” “Under that exception, the Fish and Wildlife Service National Eagle Repository collects dead eagles from around the country and distributes them to members of federally recognized Indian tribes,” Kovacs writes. “The National Eagle Repository – the only legal source for new eagles and feathers in the United States – answers request for a few feathers promptly. But tribal members who need a whole eagle (to perform the annual Sun Dance, for example) must wait years for their requests to be filled.”
What is in place to police their distribution, Kovacs says, is “reaching crisis proportions.” She continues, “Neither of the Eagle Act’s goals are being met: eagles are not adequately protected, and tribal religious needs are not satisfied.”
The Rutgers Law scholar isn’t coming to this issue as solely as an academic. Before joining Rutgers, she worked for more than a decade at the U.S. Department of Justice’s Environment and Natural Resources Division, where she handled several cases under the Eagle Act.
“I saw problems with the ways the act was administered. The administration of the exception is broken. At Rutgers, I could offer a more in-depth, academic approach and offer a solution. That’s what this article tries to do.”
While Kovacs acknowledges what the government is trying to do with limited staff, she proposes altering the exception to extend permits for eagle take and possession to tribes instead of tribal members, giving tribes the authority to distribute eagles amongst their own members. Kovacs points out that this solution could empower tribes without existing governance structures to better define their own set of guidelines on the issue.
“Tribal sovereignty is eroding,” says Kovacs. “Sovereignty over land is shifting against tribes at the moment. This resource, it is theirs. They ought to be given a significant hand in managing it.”
While at the DOJ, the Rutgers Law scholar wrote more than 100 appellate and U.S. Supreme Court briefs, and argued more than 60 appeals in all 13 of the federal circuit courts of appeals, and in three state supreme courts. She defended the Navy's use of low frequency active sonar and the display of a Latin cross in the Mojave National Preserve; prosecuted crimes under the Bald and Golden Eagle Protection Act; pursued a claim to compensate the Oneida Indians for the State of New York's unlawful purchase of their land in the early 19th century; and defended the Endangered Species Act against Fifth Amendment takings claims. A cum laude graduate of Yale University and the Georgetown University Law Center, Kovacs served as an attorney in the Baltimore City Law Department and clerked for the Honorable Robert C. Murphy, former Chief Judge of the Maryland Court of Appeals.