Tneth Circuit Court Upholds Bald Eagle Protection Regulations Over RFRA Challenge

From Religion Clause:

Mar 30, 2011 6:10 AM

10th Circuit Upholds Bald Eagle Protection Regulations Over RFRA Challenge

from Religion Clause by Howard Friedman

In a complicated opinion yesterday, the U.S. 10th Circuit Court of Appeals upheld the current federal regulations that implement the Bald and Golden Eagle Protection Act against a claim that they infringe the religious freedom of adherents of Native American religions who are not members of federally recognized Indian tribes. In United States v. Wilgus, (10th Cir., March 29, 2011), the court gave this background:

16 U.S.C. § 668, prohibits possession of the feathers or parts of eagles, but contains an exception to the ban when the feathers are possessed "for the religious purposes of Indian tribes." Id. § 668a. The regulations implementing the exception limit its scope to members of federally-recognized tribes only, who are allowed to apply to the government for permits. 50 C.F.R. § 22.22. Wilgus is a follower of a Native American faith, but is not a member of a federally-recognized tribe, nor is he Indian by birth.

Faced with prosecution, Wilgus interposed as a defense the Religious Freedom Restoration Act ... which prohibits the federal government from substantially burdening the religious freedom of individuals, unless it does so to forward a compelling governmental interest via the least restrictive means. Wilgus argues that the government’s choice to limit legal possession of eagle feathers to members of federally-recognized tribes substantially burdens his religious exercise which, he claims, requires him to possess eagle feathers.

In an earlier en banc decision, the 10th Circuit had held that defendant's religious exercise was substantially burdened, but that the government had two compelling interests for doing so. In yesterday's decision, the 10th Circuit dealt with the remaining issue-- whether the current regulation is the least restrictive means of furthering the government's interests in protecting the bald eagle as our national symbol and in fostering Native American culture and religion. It held that it is.

In the course of its decision, the court refined the articulation of the government's compelling interests. It concluded that the interest was one of protecting the culture of federally-recognized Indian tribes, not protecting Native American religion more generally. It said that the broader formulation would run afoul of the Establishment Clause:

"When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality...." [citation omitted]. If we were to hold that the federal government has a compelling interest in fostering Native American culture generally by providing special exceptions to criminal laws for Native American religious practices, we are concerned this might run up against this principle.

By adopting the federally-recognized tribes version of the interest, however, we remain on safe ground, based on the Supreme Court’s conclusion that federally recognized tribes are political—rather than religious or racial—in nature.

AP reports on the decision

Should Christians Apologize To Native Americans?

Yes.

Should Evangelicals Apologize to Native Americans?

Dr. Warren ThrockmortonArchives

• Monday, March 14, 2011
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Yes, we should.
It is past time for evangelicals to express remorse and regret to Native Americans for the mistreatment they experienced at the hands of Christians throughout the history of the nation. Although President Obama signed a resolution of apology in 2009 on behalf of the nation, evangelical groups should also follow suit.
It is a sad fact of American history that Christianity, at times, conspired with the government to colonize and nearly eradicate a proud and free people. Sadly, in the present, those wounds have been reopened by a representative of that same belief system, in effect, blaming the native people for their demise. In February, Bryan Fischer, Issues Analyst for the American Family Association wrote on the AFA website that Native Americans were “morally disqualified from sovereign control of American soil” because of “superstition, savagery and sexual immorality.”
Fischer followed up by suggesting that Americans should be proud of the “displacement of native American tribes.” Finally, he wrote that if the native people had converted to Christianity, like Pocahontas did, then “their assimilation into what became America could have been seamless and bloodless.”
Such assertions are offensive to Native American Christians. One such leader, Rev. Emerson Falls, counters Fischer, telling me that some Indian tribes, such as the Cherokee, assimilated into white Christian ways only to be displaced by federal policy at gunpoint and marched from the deep South to Oklahoma during the Trail of Tears (1838-1839). Falls added, “It was only after their forced removal on the Trail of Tears that they began to question the validity of Christianity.”
Ironically, Fischer’s assertions about Native Americans come at a time when some Christian groups are attempting to address wounds, never fully healed, among Native Americans.
The first weekend of March, Southern Baptists hosted a conference in Oklahoma called “The Gathering” where Native American Christians reflected on reasons why their peers are not more receptive to Christianity. Randy Adams, Church Outreach Director of the Baptist General Convention of Oklahoma, described barriers past generations of Christians created for native people. “At times, mission agencies were complicit with the government mistreatment of native Americans,” referring to government removal of native people from their home lands.
Furthermore, Christians conspired with the government to Americanize native people in the name of religion. Rev. Falls, first Native American president of the Baptist General Convention of Oklahoma, explains: “The church partnered with the government to run boarding schools that took Native children out of their homes, cut their hair, changed their clothes, and denied them the right to speak in the own language. This led to an attitude that equates Christianity with cultural genocide, an attitude still prevalent today.”
Both Adams and Falls said that recent months have brought a resurgence of interest in Christianity among native people. Fischer’s views, they said, coming as a representative of the religious right, could be a significant barrier to this movement.
“Fischer has a simplistic and convoluted view of history. Native Americans were deceived and lied to. To suggest that such treatment was noble or praiseworthy is just wrong and destructive,” Adams said.
Adams said that the pain of this history is never far from the native Christians he knows, saying, “What they suffered and what they lost, it is still a part of who they are.”
There are numerous instances of deceit and trickery being used to take native lands, but perhaps the prime illustration is the policy of forced removal begun under Andrew Jackson and continued during the term of Martin Van Buren. White settlers wanted the tribal lands and pushed the Jackson administration to remove native people. Beginning with the Indian Removal Act of 1830, the United States engaged in a systematic displacement of the inhabitants from their lands.
The effort culminated in the brutal Trail of Tears which led to the deaths of approximately 4000 Cherokee as they were marched from several Southern states to what is now Oklahoma. Families were uprooted with little more than the clothes they were wearing and forced to travel through harsh conditions to a place they had never seen.
Fischer’s revision of history is offensive to Rev. Falls. Referring to Fischer’s articles, Falls asserts, “This kind of stereotyping has traditionally been used to de-humanize people so they can be treated differently. I believe Native Americans are no different than any other people created in the image of God.”
Rev. Falls is right. Stereotyping is often used to justify differential treatment. Christians should have no part in the illusion that Native Americans deserved their fate. It is time for Christians to reject historical revisionism, remove barriers and build bridges. I call on the AFA to correct the false information they have promoted and express regret for the pain they have caused.
If you want to express your agreement with the US apology to Native Americans, go to this Facebook page and hit the Like button (http://www.facebook.com/profile.php?id=69103635#!/pages/Christians-supporting-the-Native-American-Apology-Resolution/189297007773483?sk=wall).

Ancient Texas Tribe Struggles For Federal Recognition

From Native American Legal Review and Texas Public Radio:

Ancient Texas Tribe Struggles for Federal Recognition

from Native American Legal Update by Jennifer Ramirez

Texas Public Radio has published an article and podcast detailing the work of Coahuiltecan people near San Antonio to become a federally-recognized Tribe. Coahuiltecans have lived in the region for 10,000 years, but have yet to hear any positive progress on the recognition application they filed with the U.S. thirteen years ago.

Greg Guedel, Foster Pepper Native American Group Chair and Chair of the ABA's Native American Concerns Committee, is interviewed in the podcast and discusses the long and difficult bureaucratic process Tribes face when seeking federal recognition



From TPR:

Local Native American Community Seeks Tribal RecognitionHernán Rozemberg - Texas Public Radio News

Ramón Vásquez , excutive director of American Indians in Texas (left) and Ray Hernández, Tap Pilam Coahuiltecan tribal council member (right), pose in front of the site of the future Native American Interpretive Center in South Bexar County.

Photo Credit:Hernán Rozemberg (Fronteras: The Changing Americas Desk)

Despite its location in the Southwest, Texas is only home to three federally recognized Indian tribes. A little known Native American community in San Antonio is trying to be the fourth. But after more than a decade of waiting, the group has decided to revive its ancient culture on its own. From Fronteras: The Changing America Desk, Hernán Rozemberg reports.
January 13, 2011 ·San Antonio's best-known relic, The Alamo, and other neighboring Spanish missions, were built by Indian tribes who called this region home for thousands of years. Their legacy remains largely invisible to the public. But linger a while at Mission San José, founded in 1720, and you begin to learn the story of the Coahuiltecans.
"For 10,000 years, the vast region now known as South Texas was inhabited by indigenous people intimately acquainted with their environment," says the narrator of a short documentary video shown at the mission's information center.
Daniel Cantú is the head ranger here for the National Park Service. On a tour, he perks up when asked about the Mission Indians. He says their legacy is often overlooked. For Cantú, the issue is both professional and personal.
"This is bringing me back to my roots. My family came from one of these missions, so I have a personal tie through blood line. So there's a connection there for me, so that's why I like this park, that's why I came to this park, it's to try to reconnect myself to my origins," Cantú said.

Ray Hernandez has it his life's work to encourage others in South Texas to rekindle interest in their native ancestry. He's a co-founder of American Indians in Texas at the Spanish Colonial Missions. The group was formed after a handful of families realized they needed a stronger, unified voice to maintain their Coahuiltecan traditions. Their activism first surfaced in the 1960s when the Catholic Church allowed Indian remains buried at the missions to be exhumed.
"We feel that because we are sovereign, we speak government to government, as a people to another people," Hernandez said.
But according to the federal government, the Coahuiltecans are not sovereign.
The Bureau of Indian Affairs lists 564 approved tribes. Hundreds of others still await official recognition. That wait can easily take decades because applicants must meet strict requirements, such as proving they've been around since 1900.
Greg Goedel is chairman of the American Bar Association's Native American Concerns Committee.
"It takes a significant period of time, and there is certainly no guarantee that a tribe applying for federal recognition will ever receive it, let alone receive it within any particular timeframe," Goedel said.
The American Indians in Texas organization submitted its application 13 years ago. Hernández says the wait for education and health benefits that come with tribal recognition has not been nearly as insulting as having to prove to outsiders the validity of the group's ancestry.
"This government has no right to say who I am," Hernandez said,"That was determined by my grandparents, my parents, my community for which I was raised. That's who I am."



Ramón Vásquez and Ray Hernández walk the grounds of the future Native American Interpretive Center.

Photo Credit: Hernán Rozemberg (Fronteras: The Changing America Desk

The group has not withdrawn its application, but it no longer counts on federal recognition as the only way to establish a presence in the community. Members say they'll continue reaching out to people like Veronica Hernández, a San Antonio filmmaker who would like to explore her own Coahuiltecan roots.
"I'm sorry that I don't know more about this particular background in my life, but I've always loved it," she said,"I love the way I look, you know. I'm proud of it."
Hernández might get her wish to reconnect with her ancestors. Leaders of the American Indians in Texas are trying to build an outdoor interpretive center on an archaeological site south of San Antonio. It's part of a million dollar conservation project.
Ray Hernández and Ramón Vásquez, the group's current executive director, walk the property and reflect on their ancestors who hunted here centuries ago.
"When I pick up this piece right here that obviously was worked on, you got to think that you're touching something that somebody worked on and you start thinking about what times were like back then, you know, their struggles, what were they thinking," Vasquez said.
"But these days, descendants of the Coahuiltecans in San Antonio are looking forward. With plenty of ideas and energy, but few resources and community support, their quest for survival continues.