Citation
Enforcing the endangered species act on tribal lands

Material Information

Title:
Enforcing the endangered species act on tribal lands the evolution of government partnerships in policymaking and implementation
Creator:
Anderson-Utley, Deserai
Publication Date:
Language:
English
Physical Description:
131 leaves : ; 28 cm

Subjects

Subjects / Keywords:
Endangered Species Act of 1973 (United States) ( fast )
Endangered species -- Government policy -- United States ( lcsh )
Wildlife conservation -- Law and legislation -- United States ( lcsh )
Indians of North America -- Government relations ( lcsh )
Indian reservations ( lcsh )
Endangered species -- Government policy ( fast )
Indian reservations ( fast )
Indians of North America -- Government relations ( fast )
Wildlife conservation -- Law and legislation ( fast )
United States ( fast )
Genre:
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

Notes

General Note:
School of Public Affairs
Statement of Responsibility:
by Deserai Anderson-Utley.

Record Information

Source Institution:
|University of Colorado Denver
Holding Location:
Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
51806354 ( OCLC )
ocm51806354
Classification:
LD1190.P86 2002m .A52 ( lcc )

Full Text
ENFORCING THE ENDANGERED SPECIES ACT
ON TRIBAL LANDS: THE EVOLUTION OF GOVERNMENT
PARTNERSHIPS IN POLICYMAKING AND IMPLEMENTATION
by
Deserai Anderson-Utley
B.S., University of Colorado, 1997
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Public Administration
2002
t---
IA L!


2002 by Deserai Anderson-Utley
All rights reserved.


This thesis for the Master of Public Administration
degree by
Deserai Anderson-Utley
has been approved
by
Tanya Settles


Anderson-Utley, Deserai (Master of Public Administration)
Enforcing the Endangered Species Act on Tribal Lands: The Evolution of
Government Partnerships in Policymaking and Implementation
Thesis directed by Associate Professor Lloyd Burton
ABSTRACT
One of the most important things that we, as a people, can do for the natural
world is to protect and conserve the bounty and diversity of species that exist on the
planet, the Endangered Species Act, passed in 1973, was designed to accomplish
these goals. Implementation and enforcement of the Endangered Species Act is often
complicated by lack of resources, political debate, and Native American needs.
Although, as a Collective, Native Americans hold nature in high esteem and
often revere wildlife and natural resources, they often debate the validity of
implementing and enforcing the ESA on tribal lands. Wildlife are frequently used in
religious and cultural ceremonies, which are central to the tribal way of life. The
importance of wildlife in Native American cultures, as well as issues of tribal
sovereignty, the trust relationship, and individual rights give rise to much conflict
concerning the implementation of the ESA.
As case law suggests, courts are beginning to alter their assessment of Native
American rights to access wildlife for religious purposes. A study of case law and
judicial trends illustrates this point. In addition, tribes and federal agencies have
IV


undertaken several important and successful partnerships in conservation. These
projects illustrate the opportunities available to tribes and the federal government if
they work toward a common goal of conservation. The successes involving Native
American partnerships with the U.S. Fish and Wildlife Service serve to demonstrate
that positive proactive work can be undertaken to a mutually beneficial end.
Education, partnerships, and resources to enable tribes to engage in the policy
process, project implementation, and land management are all needed in order to
ensure that both the goals of conservation of species and protection and preservation
of Native American culture are accomplished.
This abstract accurately represents the content of the candidates thesis^! recommend
its publication.
Signed
v


DEDICATION
I dedicate this thesis to my incredible family who has always been an invaluable
source of love and support. Your support and encouragement during this process was
a significant motivator when I needed it most. Thank you for always being my moral
compass and for showing me that we can each make a difference in this world.


ACKNOWLEDGEMENT
My thanks to my advisor and mentor, Dr. Lloyd Burton, for his guidance, insight,
and patience during this process. I gained a great deal of knowledge and maturity
during my time at the Graduate School of Public Affairs, thank you for helping me
along that journey. I also wish to thank Dr. Tanya Settles for her support and advice
in writing this thesis. Your comments helped to make this paper more complete and
thoughtful. Thank you also to the staff at the U.S. Fish and Wildlife Services
Mountain-Prairie Region office in Denver for allowing me access to the workings of
the Service and the ESA. This thesis would not have been possible without frank and
open discourse with FWS personnel.


CONTENTS
Figures.................................................xi
Tables..................................................xii
CHAPTER
1. INTRODUCTION...........................................1
Purpose of the study................................3
2. METHODS: NARRATIVE POLICY ANALYSIS.....................5
3. THE STORY: NATIVE AMERICANS AND
THE ENVIRONMENT........................................11
Tribes and the Natural World.......................13
History of Native American Tribes and the United States
Government.........................................18
The Trust Relationship.............................25
Tribal Sovereignty.................................27
Native American Views of the U.S. Government.......28
4. COUNTERSTORY: ENFORCING
THE ENDANGERED SPECIES ACT.............................31
The Endangered Species Act.........................31
Legislative History...........................33
Legislative intent............................35
Vlll


Enforcement.......................................36
Shortcomings......................................44
U.S. Fish and Wildlife Story............................47
5. LEGALISTIC NATURE OF THE DEBATE.............................51
Case law................................................52
Puyallup Trilogy..................................53
United States v. Adair............................55
United States v. Dion.............................56
United States v. Billie...........................58
Bear Lodge Multiple Use Association v. Babbitt....61
Harvey (Fire Bird) Gibson v. Babbitt..............63
United States v. Wayne Eagleboy...................65
Joseluis Saenz v. Department of Interior.:........66
United States v. Raymond Hardman..................67
6. THE METANARRATIVE:
PARTNERSHIPS AND THE FUTURE..................................74
Rhetoric................................................75
Conservation: The Metanarrative.........................76
Case studies............................................77
The Gray Wolf and the Nez Perce Tribe.............78
IX


The Grizzly Bear and the Tribes.....................82
InterTribal Bison Cooperative.......................84
The Zuni Eagle Aviary...............................86
FWS Eagle Repository................................88
Reasons for Increasing Numbers of Successful Partnerships.92
7. RECASTING THE DEBATE:
POLICY RECOMMENDATIONS........................................96
Education.................................................98
Partnerships.............................................101
Tribal resources/funding.................................103
Conclusion...............................................107
REFERENCES............................................................113
x


FIGURES
Figure
6.1 Historic Range of the Gray Wolf.......................................79
6.2 Range of the Gray Wolf at Time of ESA Listing.........................79
6.3 Current Range of the Gray Wolf.......................................81
6.4 Immature Golden Eagle Feathers.......................................87
6.5 Native American Shield Made with Eagle Feathers......................90
xi


TABLES
Table
3.1 Native American Legal History Under the U.S. Government............22
4.1 Environmental Laws and Their Penalties.............................42
5.1 Table of Cases.....................................................70
xii


CHAPTER 1
INTRODUCTION
Only within the moment of time represented by the present century
has one species- man- acquired significant power to alter the nature of
his world. During the past quarter century this power has... increased
to one of disturbing magnitude..-1
Rachel Carson presented this alarming, but realistic view of mans power
over the natural world in her groundbreaking 1962 book, Silent Spring. In the forty
years since her book was published, Carsons sentiment has only proven more
accurate as time passes. Species are being extinguished at an alarming rate, global
climate change is an ever-increasing reality, and environmental degradation exists at
never-before seen levels. This should alarm those who feel that humans have a moral
obligation to conserve and protect the species with which we share this planet.
This thesis will address some of the issues involved in the management and
implementation of species conservation efforts, particularly those under the umbrella
of the Endangered Species Act (ESA). The ESA is one of the most influential and
highly contended environmental laws in the United States. It often pits proponents of
individual rights against conservationists in an effort to save species of animals,
plants, and birds from the threat of extinction. Controversy stems from the
implementation and adjudication of ESA issues. This study attempts to shed light on
1


a particularly divisive area of ESA implementation and enforcement; enforcing the
ESA on tribal lands.
This important, but often overlooked area of debate centers on some basic
principles. Primarily, the U.S. Fish and Wildlife Service (FWS) has been assigned
the duty of enforcing and implementing the ESA. The legislative mandate handed to
the FWS says that it must protect and conserve species from the threat of extinction.
However, this often comes in direct conflict with other legislative and constitutional
mandates. Many would argue that in the realm of Native American law, the First
Amendment trumps the ESA in terms of validity. Native Americans often use
wildlife as part of their religious practices, and according to them, must be allowed
to do so under the First Amendment and treaty obligations. Others argue that Native
Americans should not, under the guise of religious freedom, be allowed to kill
federally protected wildlife, even for their spiritual purposes. These and many other
arguments will be examined through this study.
Most Native American cultures believe that humans are inextricably
connected to the entire cosmos. As a Lakota Sioux woman describes,
We Indians think of the earth and the whole universe as a never-
ending circle, and in this circle, man is just another animal. The
buffalo and the coyote are brothers; the birds, our cousins. We end
our prayers with the words all my relations and that includes
everything that grows, crawls, runs, creeps, hops, and flies.2
This illustrates the extent to which many Native American cultures revere nature and
consider it their duty to preserve and protect all species. It would seem that common
2


ground could be found in order to conserve and protect wildlife and preserve the
cultural legacies of the native tribes. This common ground is essential in order for
the two sides of this debate, and indeed all humans, to ensure the survival of both
environmental treasures such as wildlife, flora, and fauna and the cultural treasures
humans have created.
Purpose of the Study
This study will strive to find common ground by analyzing three components
necessary to understanding this complex issue. The first component involves the
history of the conflict between tribal legal status and enforcement of the ESA. This
includes an examination of the varying viewpoints of the tribes and the U.S. Fish and
Wildlife Service, which is the primary agency charged with implementing the Act.
This study will also look at the case law leading to present day enforcement of the
ESA and how this has shaped the manner in which the FWS approaches enforcement
of the statute.
Second, this study will analyze the adversarial history as well as the negative
rhetoric that has influenced much of the debate. Again, this will focus on the
litigation that has surrounded this area of ESA enforcement and implementation.
Finally, this study looks to the future of the relationship between the tribes and FWS
regarding ESA implementation. Some positive elements have been seen recently in
relations between tribes and FWS. Here, case studies are analyzed in order to provide
3


grounds for making policy recommendations and predictions about the future
enforcement of the Endangered Species Act on Native American lands.
The end result of this study is the presentation of policy recommendations in
order for the U.S. Fish and Wildlife Service to better work with tribes to ensure
cooperation as well as the conservation of species. The future of ESA
implementation must involve both the priorities of the U.S. Governments laws as
well as the freedoms of all the people it governs. I expect that this study will make a
positive contribution toward the continued improvement of this important
intergovernmental relationship. These recommendations will be based on the hope of
providing solid advice in order for the relationship between the FWS and tribes to be
more productive and positive. It is the purpose of this study to find ways in which the
FWS and tribes can accomplish the goals of conservation of species, while at the
same time maintaining freedom of religious practice and cultural preservation that is
vital to many Native Americans. Conclusions will be offered based on these policy
recommendations, concerning the future of this relationship in terms of partnerships
and intercultural education.
4


CHAPTER 2
METHODS: NARRATIVE POLICY ANALYSIS
In order to fully understand how the debate over implementation and
enforcement of the Endangered Species Act on tribal lands and in regard to Native
American tribal members has evolved, it is vital to learn the stories behind the
history and moral stance that each side has taken. To appreciate these stories, this
thesis will use the method of narrative policy analysis to describe the histories,
controversies, and litigation surrounding this issue. Narrative policy analysis will
also provide for a means by which this study can discover room for compromise and
progress.
As described by Emery Roe, narrative policy analysis allows us to engage in
a dialogue about the root causes of a conflict by examining both sides stories.3 Roe
says that, the stories commonly used in describing and analyzing policy issues are a
force in themselves, and must be considered explicitly in assessing policy options.4
These stories, under which each side in a conflict operates, can point out the
common ground in the conflict or debate when articulated in the form of a policy
narrative.5 It often takes this illustration of commonalities in order for two sides to
see the others point of view. It is due to this utility of establishing each sides
perspective and commonalities that this study will use Roes theory of narrative
5


policy analysis to establish the starting point of a policy study in enforcement of the
Endangered Species Act on Native American lands.
The issue of ESA enforcement on tribal lands has been conflict laden and
tense for many years. Both sides to the story, the U.S. Fish and Wildlife Service and
the many Native American tribes (grouped in this study not due to an assumption
that they are all identical, but because many of the tribes have similar concerns over
enforcement of environmental laws, particularly the ESA on their lands and against
their members), each have a history and a story to tell. They have staked out their
ground and compromise has been difficult. Much of this stalemate is due to a
passionate belief in each sides mission on the part of tribal members or FWS
employees. To date, there has been little room for compromise. This study is in large
part a search for examples of compromise in existing case studies, as a basis for
reflecting on how they might be better forged in the future.
In attempting to outline commonalities that will hopefully allow for
meaningful partnership and compromise, there are four steps to creating an adequate
narrative policy analysis. First, we must identify a story by which the debate is
defined.6 Here, we will begin with the story of the Native American tribes. It is their
story that has been unfolding over the past several thousand years. Theirs is a story
defined by religion, culture, history, and tenuous relations with the United States
Government. The tribal story will be told by cultural traditions involving wildlife,
the history of treaties and what they have guaranteed to tribal members, and the
6


constitutional protections promised to Native Americans. It is important to
understand this story first in order to later understand the U.S. Governments role in
this debate and why it has proven so controversial. Through this narrative process,
polarization is treated as an opportunity, not a barrier, for further analysis and
policy relevance, the chance to reread polar opposites into a different story from one
about the contraposition of opposing parties.7
The second step in the narrative policy analysis is to identify a counterstory.8
This will be the story as told by the FWS. The governments story is largely defined
by legal issues and moral aspects of preserving species and natural resources for
future generations of Americans. Much of the governments story is outlined in the
laws it has passed to protect wildlife and other species. The reasons for this
legislation as well and the history behind it will depict some of the moral arguments
underlying conserving and protecting species. This counterstory will enable us to see
the issue from both sides. After having set forth the opposing stories that have
determined the depth and breadth of this debate, a look at the legal history
surrounding Native American uses of wildlife will demonstrate that this has often
been a discourse embodied by conflict and competition between the stories,
presented here, and as outlined by the tribes and the FWS. This conflict has generally
been decided in the favor of the governments interests and has usually been framed
from the point of the federal agencies implementing the law. However, the story of
species protection and rights to access wildlife for religious purposes is slowly
7


coming to the fore, as has been demonstrated in recent litigation. This gradual shift
in jurisprudence demonstrates a shift in regard for Native American culture and
religious purposes and the rights associated with those practices.
Roe describes policy narratives as those stories... that are taken by one or
more parties to the controversy as underwriting the assumptions for policymaking in
the face of the issues uncertainty, complexity or polarization.9 Basically, the
narratives told here underscore the issues at the heart of the debate. The most
important elements of each sides argument will be presented in order to paint an
accurate picture of the partys concerns, arguments, fears, goals, and history leading
to this point.
The third step in our process of understanding this complex issue is to,
compare the two sets of narratives in what is termed a metanarrative.10 This step
will allow us to understand if there are any commonalities between the two sides in
this debate. The metanarrative is, in short, the candidate for a new policy narrative
that underwrites and stabilizes the assumptions for decision making on an issue
whose current policy narratives are so conflicting as to paralyze decision making.11
In this debate, the stories of the FWS and tribes have been so conflicting and divisive
that room for effective policy making and implementation has essentially been
absent. In order to find this room for compromise, this study will analyze several
current partnerships that the FWS and tribes have undertaken to accomplish
preservation of species while maintaining the cultural aspects of tribes and their
8


members. In addition, recent movement on the part of the Executive branch of the
U.S. Government to encourage intergovernmental agreements and negotiations with
Native American tribes demonstrates progress towards cooperation and respect for
tribal input and traditions. It is through these partnerships and cooperative
agreements that discovery of commonalities between the two sides of the debate can
be found and maximized in order to promote a healthier relationship and more
effective policy implementation.
Finally, in the last step we will determine if, based on the story, counterstory,
and metanarrative, the debate has been recast in such a way as to make it more
amenable to decision making and policymaking.12 If the debate has been
successfully recast, it will be possible to propose policy recommendations and
examples of success in order to promote a more meaningful cooperative arrangement
to ensure the conservation and protection of species as well as the protection of
Native American rights to exercise their religious practices. The end result of this
process is, a call for greater toleration of opposing views.13 It is the goal of this
study to find those commonalities in order to make policymaking a more tolerable
and efficient process in the future. The metanarrative and the recasting of the debate
serve as more conventional policy analytical tools than the previous stories that
caused paralysis and deadlock between the parties in this policymaking process.14
Narrative policy analysis is essentially the telling of two stories and the
comparison of those stories in hope of finding room for compromise through
9


commonalities between the narratives. Among the elements of these stories are
issues of morality, history, and rhetoric. The opposing narratives underwrite and
stabilize the assumptions for policymaking in situations that persist with many
unknowns, a high degree of interdependence, and little, if any, agreement,
according to Emery Roe.15 The morality and history behind the two stories of this
debate will be outlined in Chapters 3 and 4. The use of rhetoric to influence the
policy debate will be discussed in greater detail in Chapters 3 through 7. The rhetoric
of this debate has largely been based on these elements of morality and history.
There is, indeed, little agreement in the context of the stories that this study will
analyze. Colorful words are used to portray the government as an ogre wanting to
take away the rights of native peoples. Similar rhetoric is used to depict tribal
members as wasteful and uncaring with an anti-conservation ethic. This study will
show that this rhetoric does not accurately describe either side of this debate. Both
stories are much more thoughtful and complex.
10


CHAPTER 3
THE STORY:
NATIVE AMERICANS AND THE NATURAL WORLD
Native Americans have a long and storied history involving both wildlife and
the United States Government. These stories are valuable in understanding the
assertion of tribal sovereignty on their lands. To begin with, this story will depict the
Native American relationship with nature and wildlife, which is largely religious,
moral, and cultural. Secondly, it will outline the tenuous history that has haunted
most tribes with regard to intergovernmental relations with the U.S. Government and.
how these two elements have determined the nature of the debate as framed by the
Native Americans.
There are roughly five hundred and fifty-nine (or five hundred and sixty-one,
depending on ones definition) Native American tribes, bands, and groups in the
United States.16 In addition, there are some three hundred Indian reservations in the
United States covering 52.4 million acres of land in twenty-seven states.17 The
federal government does not recognize all of these, but all have unique and varied
cultural and historical perspectives. This study does not intend to characterize all
tribes as being identical. Rather, it will use some of the most common aspects of
tribal culture and religion gathered from literature and legal writings in order to
11


provide an extensive, but not comprehensive view of tribal attitudes towards wildlife,
nature, religion, culture, and intergovernmental affairs with the U.S. Government.
First, we must establish whom we are considering Native American for the
purposes of this study. Indians are a distinct race of people... Ethnologists would
classify a person as being an Indian only if that person has more than one-half Indian
blood.18 This has been called a very narrow definition of Native American heritage.
It may be easier to define Native Americans as members of tribes. This, however,
cannot be limited to those tribes recognized by the federal government. The
government has terminated some tribes; others still exist, but are not recognized for
legal purposes under federal law. The terms nation, tribe, and band have been used
interchangeably in Indian treaties... usually refers to a government independent from
any other government, possessing the power of absolute dominion over its territory
and people.19 Technically, this has changed as the U.S. Government has refused to
recognize tribes as nations with which they sign treaties and conduct similar
business. However, the notion of an independent governing body of culturally and
racially distinct people is useful in understanding the definition of Native
American and tribe.
Tribes have the authority to regulate who may become a member.20 Some
require a certain degree of tribal ancestry such as a minimum quantum of blood. The
most common blood requirement is one-quarter.21 This means that at least one
grandparent must be a full-blooded tribal member in order to qualify for
12


membership. Other tribes not only require minimum amounts of tribal blood, but
also require that it be from a particular parent. The Santa Clara Pueblo in New
Mexico will not accept children as members unless their father was a full-blooded
member of the tribe.22 The Seneca Tribe in New York requires that children be
descended from a woman of full tribal blood in order to become a member of the
tribe. As many as one-third of the tribes in the lower forty-eight states have begun
to reject minimum blood quantum as a requirement for membership. Instead, tribes
are moving towards requiring new members to be a direct descendant of a tribal
member.24 Tribes, in short, possess the power to define their citizenship through
self-generated legal definitions, and they do so in many different ways.25 Due to the
complexity of determining who is included and who is not, this study will refer to
members of Native American tribes as Native Americans.
Tribes and the Natural World
Out of the Earth
I sing for them,
A Horse nation
I sing for them.
Out of the earth
I sing for them,
The Animals
I sing for them.
-Lakota Plains26
Native American cultures often find their roots in origin stories like this song
depicts. These stories tell how the tribal ancestors were brought to (or emerged from)
13


the earth and what their connection is with the gods, nature, and each other. Many of
these origin stories contain elements of the natural world... referred to as though
they have a kinship relationship with humans, that is, as though humans are a part of
a family that also includes nonhuman entities or species.27 It is impossible to
disconnect Native Americans from nature and wildlife. Their traditions, practices,
and culture are so coupled with their natural surroundings that they think of it as part
of their identity. Indigenous peoples are not merely observers and users of the
components of biological diversity, but an integral part of it. For them, nature is an
extension of society itself.
Animals have played an enormous role in the development of Native
American cultures. From the obvious nutritional benefits to medicines, tools,
clothing, worship, and ornaments, animals have played an intrinsic role in most tribal
cultures.
The belief systems of American Indian tribes were extremely
complex. Animals were linked to one another and to other elements of
their environment through overlapping or shared powers, folktales,
ceremonies, taboos, and a wide host of symbols... The supernatural,
the medicinal, the ancestral, and the social aspects of animals as
symbols must weigh heavily in any assessment of their importance to
the Native American.
Some animals in particular have historically played important roles in Native
American culture. The eagle, bison, coyote, bear, and other birds such as the hawk
have played important roles as religious symbols.30 Although beliefs vary among
different tribes, all Native Americans share a common reverence for nature.31
14


However, despite their reverence for nature, the activities of Native Americans, as
well as European Americans and others, have drastically altered the environment.32
Several specific traditions illustrate the use of animals in religious customs
and ceremonies. The most commonly known and practiced tradition involving
animals is the Sundance. This ceremony is done in many places throughout Indian
country. The Sundance consists of various elements unique to tribes. Fasting,
dancing, singing, and secret tribal religious practices are all elements common to
Sundance ceremonies. Most of these traditions involve wildlife. In one practice, the
young men of the tribe affix eagle talons to the skin on their chest, the other end of a
tether is attached to a center pole, and then dance around a pole, until those talons rip
out of their skin.33 The eagles used for this ceremony are revered more highly than
any other animal, but are killed in order to be used in this traditional practice.
In another ceremony involving eagles, the Hopi tribe of Arizona captures
golden eaglets and raises them in captivity on their reservation until mid-summer,
when they sacrifice them to the gods. The sacrifice of smothering the eagles in
commeal has been conducted for hundreds, if not thousands of years. The practice is
done as an offering to the gods in the hope that the gods will send more eagles and
prosperity to the tribe the following year.34 This controversial practice has caused
dissention among the ranks of environmentalists and federal agencies. Currently, a
proposed rule that would specifically allow the Hopi tribe to continue this practice on
15


the Wupatki National Monument is waiting further action by the Secretary of the
Interior.35 This case will be discussed in more depth in Chapter 4.
Often, skins, feathers, and fur from animals such as fox, wolves, elk, deer,
eagles, hawks, and other birds are used for religious ceremonial dress and worship.
The feathers of eagles are also used by religious elders in ceremonies to heal people
or to bless them before they die.36 Wildlife in general and certain species, such as
eagles, in particular are a major component of native religion and culture. If asked,
most tribes would support conservation of species without the mandate imposed by
the ESA and other species protection laws.37 In fact, most tribes have internal codes,
including their own fish and game departments to enforce wildlife conservation on
tribal lands.38 However, tribes stand fast in their determination to preserve their
religious traditions involving wildlife.
While the rights bestowed by the First Amendment to the United States
Constitution do not entirely explain why Native Americans feel that they have the
right to conduct these ceremonies, it does ensure protection of Native American
religion. The First Amendment states that,
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.39
Native Americans and all other religions fall under the protection of this amendment.
It protects sacred practices not only from prohibition, but also from government
16


establishment of a single religion. This is very important because it means that the
government cannot abrogate religious freedom rights in order to protect the
environment. However, there have been few ESA takings cases that have been
argued solely under First Amendment rights to freedom of religious practice.40
This depiction of native uses of wildlife and reverence for nature does not
infer that tribes have never harmed the environment or wildlife. As have European
Americans, Native Americans have caused harm to species and resources. This is
the rhetoric of buffalo hunting on the Plains: White men wasted and exterminated the
buffalo whereas Indians were skillful, ecologically aware conservationists.41 This
was not always true. Some accounts of buffalo hunts by Native Americans describe,
whole droves of buffalo killed, but tribes taking only the best parts of the meat
and leaving the rest to rot in the field.42 It presents a very different picture (of
former accounts)- memories of the communal hunt... that omit mention of the waste
while simultaneously stressing the sacrality of the hunt.43
The Native Americans continued to shape the natural world around them.
As a people, they were neither impotent nor passive.44 The Native American tribes
across the country molded the landscape and the wildlife to their needs, as most
humans have done over the centuries. The land and its resources provided essentials
to the tribes. From fire to agriculture, Native Americans possessed the capacity and
the desire to mold the landscape to fit their needs in order to survive and develop
distinct cultures.
17


History of Native American Tribes and
The United States Government
The second important factor to understand in order to appreciate the Native
American story is the history of tribal relations with the U.S. Government. From the
start, this has been a very undependable relationship for tribes. Native Americans
inhabited North America for thousands of years prior to the establishment of the
United States. They were independent, self-sufficient nations that worshiped and
governed according to their beliefs, such as those outlined above. For the past two
hundred years the status of Native Americans has become increasingly dominated by
the United States Government. This change in status has led to the disposition of
property, disempowerment, and broken treaties.
When Europeans first came to America, they needed the help of tribes in
order to secure land and protect their homes and cities from enemies. Native
Americans had been present and culturally established on this continent for
thousands of years. Theories vary as to how long humans have inhabited North
America. According to some recent studies, indigenous people to the Americas
migrated to this continent roughly 13,500 years ago.45 By any account, their story
had been established long before Europeans settled North America.
The period of tribal independence (1492-1787) is depicted as one in which
over four hundred independent nations... had (their) own government, culture, and
language.46 Most tribes welcomed European settlers and signed treaties, traded
18


goods, and allowed them to settle on what had been tribal land.47 Native American
power and influence was great due to the vast number of tribes and the few numbers
of Europeans during this period.
This independence gave way to a period in which tribes were regarded as
foreign nations (1787-1828). The United States Government treated them as such
and signed many treaties with Native Americans. The U.S. Constitution, ratified in
1787, even outlined the duties of Congress as including the ability to regulate
Commerce with foreign Nations, and among the several States, and with the Indian
Tribes demonstrating the notion that the tribes were indeed independent nations,
to be treated like any other foreign government. Most treaties included at least two
elements. First, tribes agreed to give the United States land. Second, the United
States agreed to establish a protected reservation for the tribal members.49 Many
treaties also include the provision that a tribe has the right to care for the natural
resources and wildlife on its reservation in whichever way if sees fit, including
hunting and fishing rights.50 In 1787, the Northwest Ordinance declared, The
utmost good faith shall always be observed towards Indians; their land and property
shall never be taken from them without their consent.51 This era of equal treatment
gave way to one of hostility and relocation.
During most of the nineteenth century, the U.S. Government tried and
succeeded in moving the native tribes off of their land east of the Mississippi. With
the Indian Removal Act of 1830, most tribes were moved to the West and given
19


reservations to live on in place of their traditional homelands.52 In 1871, Congress
passed a law prohibiting the federal government from making any further treaties
with Native American tribes. From this point forward, Congress would treat them as
subjects, not independent nations.53
From 1887 through 1934, the federal government did its best to dissolve
tribal governments and abolish reservations. This was a period in which Native
Americans were forced to sell their land when they could not pay taxes, attend
missionary schools, and assimilate to white society.54 This was one of the more
abusive periods for the tribes and their members.
During the period of Indian Reorganization (1934-1953), a more humane
and considerate approach was adopted.55 Under President Roosevelt, interference
with Indian religion and culture would no longer be tolerated. Economic
rehabilitation for tribes was attempted during this time. Some of the reservation
lands, sold off under the previous period were given back to tribes.56
Termination of tribes was attempted from 1953 through 1968. Federal
benefits and services that the tribes had relied upon were thus ended. Many tribes
and reservations were dissolved during this period. States were also granted authority
over tribal members in criminal proceedings. This was a significant change since
tribal and federal courts had always maintained jurisdiction. This angered tribes and
delighted states, which had wanted more control over the Native American
populations of their states.57
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Finally, we have arrived in the period of tribal self-determination. Since 1968
when President Johnson declared, We must affirm the rights of the first Americans
to remain Indians while exercising their rights as Americans. We affirm their rights
to freedom of choice and self-determination58, the role of the federal government in
dominating tribal lands has diminished. Tribes have had more control and choice
over their own governing structures and laws. The U.S. Congress has passed laws
such as the Indian Self-Determination and Education Assistance Act, which provides
for more control over governing structures by the tribes. In addition, laws such as the
American Indian Religious Freedom Act and the Native American Graves
Repatriation Act have given tribes more control over their historical, religious, and
cultural artifacts and practices.59
Table 3.1 illustrates these periods of intergovernmental relations between the
tribes and the U.S. Government. As most will agree, Indian affairs have been
unpredictable and often dishonest. The United States has routinely broken treaties
and promises to the tribes. The relationship between governments has changed from
a level of high tribal independence to very low levels, and now it is again moving
towards tribal independence.
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Table 3.1- Native American Legal History Under the U.S. Government
Era of Tribal/U.S. relations Dates Characteristics of era Important laws passed Level of Tribal indepen- dence
Tribal Independence60 Settlement- 1787 European dependence on tribes for protection. Treaties signed between nations. None Very High
Equals61 1787-1828 Good faith and protection of the tribes from non-Indians! Treaties signed and tribal status was one of equals. -1789, Northwest Ordinance -1790, persons wanting to trade with tribes must be licensed -1793, non- Indians prohibited from settling tribal lands High
Relocation6^ 1828-1887 Tribes moved off of homeland to the West. -1830, Indian Removal Act -1871, Congress eliminated practice of signing treaties with tribes Low
Allotment and Assimilation63 1887-1934 Abolish reservations and make Native Americans assimilate into white society. -1887, General Allotment Act (Dawes Act) -1924, Congress extended citizenship to all Native Americans Extremely Low
Reorganization64 1934-1953 (some say 1928-1945) Respect the cultural history of tribes, tribes encouraged to establish governments and constitutions. - 1934, Indian Reorganization Act Low- moderate
22


Table 3.1 (Cont.)
Era of Tribal/U.S. relations Dates Characteristics of era Important laws passed Level of tribal indepen- dence
Termination65 1953-1968 Terminated tribes, federal benefits and services, and reservations. -1953, House Concurrent Resolution No. 108 (ending federal benefits and services to tribes) -1953, Public Law 280 (giving states criminal jurisdiction over tribes) Low
Tribal Self- Determination66 1968-present Affirmed the rights of Native Americans to govern themselves and benefit from the U.S. Governments laws, services, and rights bestowed upon the American people. -1968, Indian Civil Rights Act -1975, Indian Self- determination and Education Assistance Act -1988, Indian Gaming Regulatory Act -Many others giving tribes more freedom in determining governing and economic activities Moderate
Although relations between the U.S. and tribes have progressed to the current
policy of self-determination, tribes are still at the mercy of federal laws and
regulations. Within the realm of Native American law, there have been many
changes in practice and regard for tribal rights. Native Americans have even seen
their cultural heritage for sale on the internet.67 These items are illegal to possess or
23


purchase unless the possessor is a member of a federally recognized tribe (as
mentioned earlier, not all tribes are recognized by the U.S. Government, another area
of debate entirely). When found, Native American artifacts, including those with
eagle feathers, are confiscated. A gallery in New Mexico sold $200,000 worth of
artifacts, including a Cheyenne eagle feather headdress and Navajo prayer sticks,
knowing they were illegal to sell or possess.68 Unknowingly, the gallery sold the
items to undercover agents and was charged with violation of the Native American
Graves and Repatriation Act, the Golden and Bald Eagle Protection Act, and the
Migratory Bird Treaty Act. Stories like this one are common. People are making
incredible amounts of money off of Native American Artifacts. To many tribal
members, this economic windfall is a desecration of their culture and heritage.
It is not always non-Indians that are arrested for holding or transporting eagle
feathers. Some Native Americans have been detained because they carry eagle
feathers across state and international borders as part of their participation in
powwows or religious ceremonies. The powwow circuit involves elaborate dress that
is often adorned with eagle feathers, hawk feathers, and other wildlife parts.
Although Native Americans are allowed to possess the feathers, they are not allowed
to travel to other countries with them. This is seen, by some, as a major problem with
the current law in that the law does not reflect the actual needs of Native
Americans.69
24


As the twenty-first century drew closer, tribes saw relations with the U.S.
Government change again. Now, many federal agencies are mandated to take Native
American issues and opinions into consideration when making and implementing
policies.70 Indian policy now assumes a consensual, rather than overtly coercive,
posture.71 These rules and orders will be considered in the next section, as they
primarily deal with the trust relationship.
The Trust Relationship
For nearly two centuries Native American law has been defined by the
doctrine of a trust relationship between the United States Government and tribes. The
concept of the trust relationship was established when Chief Justice John Marshall
authored three groundbreaking decisions, which affected Native Americans and their
relations with the federal government. These three decisions are commonly referred
to as the Marshall Trilogy.72
The first of these decisions was articulated in the Johnson v. McIntosh case in
1823. This decision took ownership of tribal lands away from the tribes and vested it
with the federal government.73 The second case, Cherokee Nation v. Georgia, in
1831 reduced the status of tribal nations to domestic dependent nations.74 The final
of the three cases, Wocester v. Georgia, in 1832 barred state governments from
exerting any jurisdiction over tribal lands.75
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In their totality these three cases created the trust responsibility involving
tribes. There is no constitutional or legislative provision that expresses the general
trust responsibility in explicit terms. Instead, the duty arises from common law
extending back to the landmark cases.. ,76 Chief Justice Marshall concluded in
Cherokee Nation v. Georgia that Native American tribes, may, more correctly,
perhaps, be denominated domestic dependent nations... in a state of pupilage and
their relationship to the United States resembles that of a ward to his guardian.77
From this the point of this legal decision forward, tribes were under the power of the
U.S. Government. They were no longer considered to be independent nations as they
had been for thousands of years.
The trust responsibility embodies an inferred promise that was made to the
tribes in exchange for their land. This promise includes protection of tribal members,
land, individual rights, and natural resources on tribal land.78 Congress has the
authority to create further trust responsibilities as well. The Supreme Court has also
stated that Congress may wield its plenary power over Indian affairs to abrogate
treaty rights and even to diminish or extinguish the reservation land base
altogether.79 From the Native American perspective, tribes would like to see more
protection of their cultural interests as an element of the trust responsibility.80
The U.S. Government has established rules for many federal agencies to
follow in carrying out their trust responsibilities. Several Presidential and Secretarial
orders and memoranda have addressed the issue of govemment-to-govemment
26


consultation. Secretarial Order No. 3175 (November 8, 1993), Presidential
Memorandum of April 29, 1994, Executive Order 13084 (May 14, 1998), Secretarial
Order 3206 (June 5, 1997), and The Native American Policy of the U.S. Fish and
Wildlife Service (June 18,1994) all address the issue of consultation by federal
agencies with Native American tribes.81 These orders and memoranda essentially
urge agencies to consult with tribes when policies or laws will impinge upon tribal
rights or lands.82 While this trend is encouraging, Native Americans are worried that
these governmental documents are largely unenforceable since they are voluntary in
nature.83
Tribal Sovereignty
Tribal sovereignty is another important concept in understanding tribal
relations with the United States. Native American tribes believe themselves to be
governmental sovereigns and have the inherent power to make and enforce laws.
This includes the power to manage and control water and land resources, associated
natural resources, and environmental protection.84 The concept of tribal sovereignty
is a simple one; tribes have the right to govern themselves, their people, and their
land and its resources.
This has not always been such a simple concept for the U.S. Government to
accept, however. Since the time tribes were relegated to the status of domestic
dependent nations... in a state of pupilage85 by the Marshall Courts opinions, tribal
27


laws and regulations have been regarded as subordinate to federal laws. The United
States Government does not agree, for the most part, with the concept of Native
American sovereignty. It is the view of the U.S. Government that federal law applies
to all lands in the United States, regardless of whether it belongs to Native American
tribes or to private landowners.
Native American Views of the U.S. Government
As can be seen from the picture painted here, Native Americans have dealt
with a long history of deception and change with regard to their status with and
under the United States Government. From broken treaties to stolen land, tribes have
great reason for concern and distrust. The Courts have even upheld Congress
power to abrogate treaties with the tribes if such action was consistent with perfect
good faith towards the Indians.86
When the European settlers wanted to gain control over the multitudes of
natives on the new continent, they all too often did so through deceit and,
by offering liquor and credit. Liquor created exactly the insatiable
demand the traders sought while loosening cultural restraints against
overhunting. Credit put the Indians quickly into debt, and furthered
the traders control. When given full rein, the credit-liquor
combination could lead to rapid overhunting... and complete
dependence on Europeans and Americans.87
This dishonest history gives rise to distrust and uneasiness on the part of Native
American tribes.
28


In addition, most of the environmental problems and resource depletion
(have been) caused largely by non-Indian sectors of society... (and) now seriously
threaten the ability of tribes to continue a viable and separate existence.88 In the
view of many tribal members, white men have caused much of the environmental
destruction and now tribes are asked to relinquish control over their lands under the
ESA and similar laws. Yet a vast number of.. .wildlife dependent practices (sacred
ceremonies) are now imperiled because the species upon which they depend are now
on the brink of extinction.89
Two main issues are apparent with regard to how the Native American tribes
view the Endangered Species Act. First, the Act is unclear as to how it applies to
tribes.90 Courts have attempted to interpret Congress silence on the issue, as have
the federal agencies charged with implementing the Act. Nothing has been
persuasively argued to determine in a definite manner what Congress intended with
regard to the ESA and tribes. Secondly, the ESA does not take native uses of wildlife
into account.91 While left up to the FWS to promulgate regulations to deal with
tribes, the ESA does not specifically address the many issues surrounding tribal uses
of animals.
Their homes, land, and rights have been taken, abridged, and replaced. Why
should Native Americans trust the U.S. Government to do what is right for them or
for their land and resources such as wildlife? The Native American story regarding
the debate over implementation and enforcement of the ESA in relation to tribes and
29


their members is one largely depicted by tales of broken promises, disposition of
property, disempowerment, and deceit. The governments moral duty and
responsibility to tribal members, whom it harmed in so many ways, has been ignored
and ineffectively managed. To Native Americans, the issue of species protection and
conservation is also a moral issue, derived from their reverence for nature and their
beliefs in the interconnected web of life. However, the government agencies charged
with enforcing the rules and laws to protect species are associated with those that
harmed tribal cultures for the past two hundred years. It is difficult to find room for
trust based on this difficult history between the Native American tribes and the U.S.
Government.
30


CHAPTER 4
COUNTERSTORY:
ENFORCING THE ENDANGERED SPECIES ACT
The law that has caused much of the debate over species protection on tribal
lands is the Endangered Species Act. The ESA was initially passed in 197392 and is
considered by many to be one of the worlds most powerful species preservation
laws.93 The law makes it illegal for any person to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such
conduct94 in relation to a federally listed species. These actions, as well as
destruction of the habitat of a listed species, are grouped as takings under the
ESA.95 A listed species includes any of the several hundred species, which have been
determined to be threatened or endangered by the U.S. Fish and Wildlife Service,
and therefore entitled to protection under the ESA.96 This chapter is designed to give
the reader an adequate understanding of the history, intent, and enforcement of the
ESA and why it is such a morally imperative law in the minds of those charged with
passing the legislation and implementing the Act.
The Endangered Species Act
Species are listed under the ESA based upon the best scientific and
commercial data available.97 State and federal scientists collect this data in order to
31


determine if the imperiled species could survive without listing protection. An
endangered species is, any species which is in danger of extinction throughout all or
QO
a significant portion of its range. A threatened species is defined as, any species
that is likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.99 When a species can benefit
from habitat protection as well, critical habitat often is designated to help the species
recover.100 Recovery is the point at which the species no longer needs ESA
protection in order to survive and flourish in the wild.101 As of August 31, 2002,
1,260 U.S. species were listed as threatened or endangered under the ESA, including
517 animals and 743 plants.102
When a species is placed on the endangered and threatened species list,
activities that may harm or kill the species are criminalized and must be limited or
prohibited entirely. This includes activities on both public and private lands. In the
case of projects that may alter habitat of a species, in order for the project to proceed,
the land owner must initiate a consultation with the FWS to ensure that minimal
harm is done to the species and adequate protection measures are taken during the
project or development.103 The law also prohibits hunting, poaching or other illegal
taking of a listed species. This may include, significant habitat modification or
degradation where it actually kills or injures wildlife by significantly impairing
essential behavioral patterns, including breeding, feeding, or sheltering.104
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Legislative History
The ESA was not the first species protection law in the United States. There
had been several other laws passed throughout the twentieth century to ensure the
conservation of species. However, many of these laws were aimed at protecting
specific charismatic species such as the bald eagle, the bison, and wild horses.105
Prior to passage of the Endangered Species Act in 1973, U.S. laws did not address
the magnitude of species endangerment and habitat destruction that many thought
was needed in order to adequately protect all the species found in this country, not
just the charismatic few that had been protected under law to that point. The need for
a more comprehensive and powerful law had become apparent.
In the past, solutions often seemed easy. When an animal or plant
needed protection, the federal government passed laws to prohibit
. killing or destroying it, established a refuge for it, or made provisions
to feed it through the winter months... Now, far more complex factors
threaten plant and animal life.106
Due to this new complexity of issues facing species, such as development and
increased levels of pollution, criteria such as habitat destruction and reintroduction of
extinct species had to be taken into account under the ESA.
The Endangered Species Act replaced earlier laws that had been enacted in
1966 and 1969, which listed, but did not provide sufficient protection to species. The
purpose of the ESA is to conserve the ecosystems upon which endangered and
threatened species depend.107 The Act also called upon the FWS and the National
33


Marine Fisheries Service (jointly commissioned with implementing the Act) to
conserve and recover listed species.108
The ESA has been reauthorized seven times and amended on several
occasions, most recently in 1988.109 The Act was due for reauthorization again in
1993, but legislation has not yet been enacted to accomplish that. However, the law
has lived on through appropriations while waiting for reauthorization. The ESA does
not include a sunset provision and it can therefore remain law even though the Act is
not currently reauthorized.110 While this does not affect enforcement of the ESA, the
tenuous nature of the law provides a great deal of complexity with which the FWS
much deal.
Although the ESA has not been reauthorized, this does not mean that
Congress has ignored the issue. Due to the controversial nature of this law with
regard to private property rights, each time it is due for reauthorization a debate over
its value rises to the forefront of congressional attention. When the 104th Congress,
an overwhelmingly conservative legislative body, came into power, their mission
was to reduce the influence of the federal government and reduce the impact that
environmental legislation was having on private property and industry.111 To this
end, amendments were proposed in 1995 to severely limit the scope and depth of the
ESAs authority over private property owners.112 These did not become law, but
demonstrate the divisive nature of the debate relative to the ESA. Because of the
controversy that surrounds reauthorization and amendment of the ESA, supporters of
34


the ESA have chosen not to propose reauthorization until a more green Congress
can address the issue. Until that time, the Act will likely live through appropriations.
Legislative intent
The purpose of the ESA, as described by the U.S. Fish and Wildlife Service,
is to protect these endangered and threatened species and to provide a means to
conserve their ecosystems.113 Congress also expressed that, various species of fish,
wildlife, and plants in the United States have been rendered extinct as a consequence
of economic growth and development untempered by adequate concern and
conservation114 and that it was important to ensure the protection of our rich
natural heritage (that) was ofesthetic, ecological, educational, recreational, and
scientific value to our Nation and its people.115 By providing a means by which the
federal government can protect various listed species, Congress provided a tool that
would become one of the most powerful environmental laws in the world.
The law, however, is not without its flaws. Some argue that the ESA should
be broader in scope. Rather than protecting individual species from harm, it should
protect entire ecosystems, such as old-growth forests. Even under critical habitat
designation, only activities undertaken by the federal government are affected.116
Private property owners can still modify their land within reason although the
property is designated as critical habitat for a listed species.
35


The Endangered Species Act can be seen as homocentric in nature.117
While protecting species from extinction, the law does so for the benefit of future
generations of people, not for the purely moral benefits derived from conserving our
natural world. In one of the most important cases involving the ESA, TV A v. Hill, the
U.S. Supreme Court opined sheer self-interest impels us to be cautious118 about the
destruction of species. Essentially, these arguments derive from the fear that some
unknown medical cure or higher use may be found for a species, and therefore it is
vital to conserve this biodiversity for possible future human purposes.119
Enforcement
The U.S. Fish and Wildlife Service includes, under its umbrella of divisions,
a law enforcement (LE) department. LE consists of several categories of employees.
Those in charge of actually investigating and enforcing compliance with the ESA
19ft
include wildlife inspectors and agents.
The wildlife inspectors, of which there are ninety-seven nationwide are in
charge of inspecting and confiscating any illegal wildlife products that are imported
to or exported from the United States. They are trained, for example, to know the
difference between a legal reptile skin and a skin obtained from a listed species.
These inspectors are not only in charge of ESA violations, but also have to inspect
199
for violations of various other wildlife protection laws. These laws include CITES
(the Convention on International Trade in Endangered Species of Wild Fauna and
36


Flora), the Lacey Act (discussed later), the Bald Eagle Protection Act, and the
Migratory Bird Treaty Act.123
Inspectors routinely check that wildlife product imports have the appropriate
paperwork to enter the country. For example, the illegal caviar trade, involving eggs
obtained from the listed sturgeon, involves a tremendous amount of work by law
enforcement personnel. Every fifth can of caviar that is imported into the country
must be inspected to determine whether it is illegal caviar, which is banned from
import into the U.S. To accomplish all of this work, wildlife inspectors work with
customs inspectors at airports and shipping ports. FWS also operates a state of the art
forensics lab in Ashland, Oregon.124 However, since most of these wildlife inspectors
are stationed at large international ports of entry such as Los Angeles, Miami, New
York, and Chicago, it is difficult for the FWS to obtain adequate coverage of the
entire wildlife trade.125 Even at these international ports of entry, the volume of
imports far exceeds the ability of agents to inspect for illegal goods.
The forensics lab in Ashland, Oregon is charged with analyzing and
identifying skins, tusks, and other parts from various listed species from around the
world. This important work is done for FWS, U.S. Customs, and over 150 state fish
and game agencies.126 Although they are overworked and understaffed, like many of
the law enforcement divisions of conservation agencies, the lab has helped to convict
many wildlife criminals through its forensic and DNA analysis.127
37


While it may not seem to be a huge problem, Neill Hartman of the U.S. Fish
and Wildlife Services Law Enforcement division points out that, the United States
is the number one consumer of endangered species products in the world.128 The
market for illegal wildlife products, generates more profits than illegal arms sales,
and constitutes a worldwide black market second in size only to the drug trade,129
estimated at about $1.5 billion per year as early as 1990.130 In 2002, the illegal
wildlife trade is estimated to generate between $5 and 10 billion per year.131
The world wildlife market services a booming industry. It facilitates
the trade of more than twenty-five thousand live primates, two to
three million live birds, more than five million live reptiles, over ten
million reptile skins, five hundred to six hundred million live fish,
between one and two thousand tons of raw coral, and a plethora of
other animals and animal products.132
As one can imagine, with this magnitude of wildlife products crossing national and
international borders, it is virtually impossible for the handful of wildlife inspectors
to unearth all instances of such illegal trade.
In order for federal agencies to confiscate and prosecute as many wildlife
criminals as they do, FWS enlists the help of other state and federal agencies. A 1989
sting in Massachusetts illustrates the coalitions the agency builds in order to maintain
some control over illegal wildlife markets. In this sting, as many as seventy-five law
enforcement agents from three New England states combined to arrest twenty-three
people in five states.133 The accused were charged with killing upwards of four
hundred black bears in New England.134 The parts were shipped to Asian countries
38


for use in aphrodisiacs and medicinal products.135 The trade in black bear parts for
this arrest alone totaled approximately $50,000.136
FWS Region 6 (there are nine Fish and Wildlife Service regions in the
country) comprises eight states: Kansas, Nebraska, North Dakota, South Dakota,
Colorado, Wyoming, Utah, and Montana. In this one region alone there are eight
hundred and fifty miles of international border along the boundary between the
United States and Canada.137 Region 6 has only two wildlife inspectors.138 With this
lack of resources, perpetrators of wildlife crimes are often not arrested. Many others
are arrested and never prosecuted for their crimes.
The second category of law enforcement personnel under the FWS is the
special agents. These people have one of the most dangerous jobs in law
enforcement, according to Neill Hartman, Deputy Assistant Regional Director for
Law Enforcement with the FWS.139 They are given the responsibility of investigating
and obtaining evidence on people who are thought to be in the business of poaching
and profiting from endangered species. Since their job involves infiltrating these
suspected illegal operations, they must be in remote places with groups of hunters,
armed to the teeth.140 FWS special agents collect evidence to bring people involved
in the illegal wildlife trade to trial, and must collect a substantial amount of evidence
for the case to proceed to trial. Often, the cases never make it to the courts because
the accused plead out due to overwhelming evidence.141
39


The ESA carries with it the status of a Class A misdemeanor if a person is
caught breaking the law. The penalty for illegally taking a listed species under the
ESA includes up to a $100,000 fine for an individual ($200,000 for an organization)
and restitution to any person injured in the taking of the animal.142 This may seem
like a meaningful penalty to dissuade people from killing listed species, but some
illegal poaching operations can make millions of dollars off of the hide, head, or
other parts of endangered species on the black market.143 It is therefore apparent that
a $200,000 fine for an organization does not have a substantial effect on deterring
these crimes.
Many in law enforcement argue that the penalties for breaking the
Endangered Species Act laws are too light.144 In addition, there is a considerable
burden of proof put on the FWS in order to prove that a person is guilty of breaking
the law. In United States v. McKittrick, a case that proved to be a turning point in
ESA enforcement, the appellant was charged with killing a gray wolf, a listed species
under the ESA. The government argued that he knowingly killed the animal and later
hid the radio collar, skinned, and decapitated the animal, proving that he
intentionally hid the evidence of his crime from law enforcement. McKittrick argued
that the FWS had used faulty science and reasoning to reintroduce the new wolf
population to the Yellowstone region. Thus, he was not breaking the law since FWS
did not follow the correct procedures in their reintroduction of the wolf, causally
arguing that the animals were illegally placed in the region.145 The 9th Circuit court
40


found that McKittrick knowingly killed the animal simply by pulling the trigger,
and that was all the evidence that was needed to confirm his illegal act. The court
determined that the government did not need to prove that the appellant knew what
type of animal he killed in order to be considered in violation of the ESA.146
McKittrick appealed to the Supreme Court, and was denied certiorari in
1999 147 xhis was not, however, the end of Mr. McKittricks story. Although the
Supreme Court refused to hear the case, and therefore the decision stands that a
person need only know that they are killing an animal, not what type of animal it is,
to be found guilty of a taking under the ESA, the U.S. Department of Justice (DOJ)
took the case a step further. Under current internal policy dictated by the DOJ under
Attorney General John Ashcroft, FWS is restricted from bringing any case to trial
unless it can be proven that the accused knew what type of species they were killing
when they took the animal. It is now simply not enough to prove that they killed a
listed species; FWS must now prove that the person knew it was listed, according to
Neill Hartman.148
Due to this increased burden of proof as well as the limitations of criminal
penalties that can be levied against a person accused of taking a listed species, FWS
often chooses not to prosecute under the ESA. Rather, the agency may decide to
charge a person under the Lacey Act or the Bald and Golden Eagle Protection Act,
since these laws involve varying degrees of proof required to prove guilt as well as
varying penalties attached to the laws.
41


Table 4.1- Environmental Laws and Their Penalties
Title of Law Year Originally Passed into law Species protected by the law Penalties associated with breaking the law
Endangered Species Act (ESA)149 1973 All listed species, from harm, harassment, import, export, etc.150 -Class A Misdemeanor -$100,000 fine individual/ $200,000 organization Restitution151
Lacey Act152 1900 All species, from interstate transport and import/export153 -Class D Felony -Up to $250,000 individual/ $500,000 organization -5 years in prison Restitution154
Bald and Golden Eagle Protection Act155 1940 Bald and Golden Eagles and their nests and eggs, from taking, commerce and possession except by designated Native Americans156 -Felony -$250,000 individual/ $500,000 organization -2 years in 157 prison
Migratory Bird Treaty Act (MBTA)158 1918 Any migratory bird, from hunt, kill, capture, possession, except for designated Native American uses159 -$100,000 individual/ $200,000 organization Up to 1 year in prison160
Convention on International Trade in Endangered Species (CITES)161 1973 Any internationally listed species of concern from import and export162 -Enforced under the ESA163
As Table 4.1 illustrates, there is tremendous redundancy as well as a great
deal of variation among the species protection laws of the United States. Due to this
variation among the laws, FWS has some discretion regarding how they prosecute
cases. Often, if they cannot prove that a person knew what type of species they were
42


killing, but can prove that the person transported the dead animal; FWS will
prosecute under the Lacey Act.164 This has two benefits. First, there is a lesser
burden of proof with the Lacey Act and second, there is a stiffer penalty associated
with the law than under the ESA. Similarly, FWS could prosecute under the
Migratory Bird Treaty Act (MBTA) if they had no proof that the accused person
actually killed the bird. In this case, all FWS needs to prove is that the accused did
know or should have known that killing the bird was a crime.165 The MBTA
involves a $100,000 fine for individuals as well as up to one year in prison. MBTA
regulations also allow for prosecution under lesser charges, including misdemeanor
penalties up to $15,000.166
The Bald and Golden Eagle Protection Act also gives the FWS more
flexibility in enforcing wildlife laws. The government only has to prove that the
accused knowingly or wantonly disregarded the consequences of their actions.167 It
is illegal for anyone except designated Native Americans to own eagle feathers, and
therefore it is a fairly easy burden of proof for the government to prove possession of
feathers, eggs, nests, or parts.
This flexibility that FWS has increases its ability to prosecute wildlife crimes.
Since these crimes are often committed away from witnesses, as in the case of
hunters and poachers, it is often difficult to prove intent and knowledge. However, if
these elements are missing from the governments case, they can still prosecute for
possession or transportation. This web of legal authority allows for a broader
43


umbrella under which FWS can prosecute wildlife criminals. Since they are often
lacking in resources, this discretion assists in helping FWS Law Enforcement
accomplish its mission of protecting species.
Shortcomings
While the ESA has many attributes which make it an important and powerful
piece of legislation, it also has several features which illustrate its shortcomings.
Three of the most significant areas of difficulty in enforcing the ESA include the
lack of resources in order to ensure that law enforcement personnel can adequately
do their jobs, political pressures, and Native American issues.
First, lack of resources with which to implement and enforce the ESA is one
of the most important issues that is brought forth when speaking with people in the
U.S. Fish and Wildlife Service. It is clear that they are dedicated and passionate
about their work. It is also clear that they are frustrated by the continual lack of
funding, personnel, and resources.168 With only two hundred and fifty special agents
and ninety-seven wildlife inspectors169 covering the entire country, which ranks first
in the world in wildlife imports, it is impossible to imagine the FWS effectively
enforcing ESA regulations. This staff is charged with covering all fifty states and all
of the wildlife being imported and exported from the nation. They are forced to
prioritize and let smaller criminals go, in hopes of catching the big time poachers and
170
importers.
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To make their duties even more difficult, FWS special agents, along with law
enforcement officers in every federal agency, have recently been taken off of their
regular jobs in order to perform security details at the Olympic Games in Salt Lake
City and to perform homeland security details and air marshal duties in the wake of
the terrorist attacks of September 11,2001.171 Although this may seem like an odd
marriage of duties, it is not surprising considering the Bush administrations minimal
focus on environmental protection and its emphasis on homeland security issues.
Due to the public concern over terrorism and the lack of people with which to protect
the country, law enforcement personnel have been reassigned temporarily in order to
172
provide more adequate protection from terrorist threats.
The number of laws that FWS is asked to enforce has increased noticeably
since the ESA was enacted in 1973 with the advent of increased concern over
environmental issues and species protection, but the number of special agents and
wildlife inspectors has stagnated.173 What FWS needs is an infusion of law
enforcement personnel in order to more effectively investigate and prosecute the vast
number of wildlife crimes in the United States. While the federal government is
currently hiring more wildlife inspectors, these people will have to do much more
than inspect for wildlife crime. They now will also be searching luggage for weapons
and paraphernalia associated with terrorism. This infusion, in the short term, will not
make a difference in the enforcement of the ESA.174
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The second area of difficulty in implementing the ESA involves politics.
Politics plays an important role in enforcement of the ESA. As noted in the
McKittrick case, discussed above, upon denial of certiorari by the Supreme Court,
FWSs legal authority to prosecute wildlife crime involved a burden of proof that
was manageable. This burden of proof required that FWS prove that the accused
killed the animal in question. The government did not have to prove that the accused
knew the animal was listed.175 However, politics came into play when DOJ
implemented its internal policy following the McKittrick decision. DOJ made it a
requirement that the government prove the accused actually knew what type of
species was being killed in order to prosecute under the ESA. This increased
burden of proof makes it substantially more difficult to prove an ESA case.
Politics also comes into play when dealing with reauthorization and funding
of the ESA. As noted above, the ESA has not been reauthorized since it came due for
action in 1993. However, proponents of the Act do not want to address the issue in
the current political climate. Knowing that a conservative majority controls the
House of Representatives and the Executive Branch, ESA supporters do not want to
open the issue for debate, knowing that the law is likely to be gutted if reauthorized
under the current congressional makeup.177
Because of the stalemates caused by political pressures and conflicting
viewpoints, it often takes a Non Governmental Organization (NGO) to sue in order
I <70 t
for law enforcement action to be taken to benefit a species. Like many
46


environmental laws, the ESA includes a citizen suit provision. NGOs and individual
citizens can sue in order to make the government implement and enforce the laws.179
While resources are scarce and politicians create stalemates, often the only course of
action is litigation. Some argue that it will take an NGO lawsuit in order for the DOJ
internal policy that refutes the McKittrick decision to be overturned.180 Others say
that it is better to wait for the next, more ESA friendly administration to adopt a
1 ot
more reasonable policy.
The third area that causes a great deal of concern for enforcement of the ESA
is the issue of enforcing the Act on Native American lands. This area of debate
involves many facets including religious freedom, cultural preservation, species
conservation, and political and legal history. In many instances, Native Americans
argue that their traditional religious practices are infringed upon due to the ESA and
other species protection laws that prohibit any taking of wildlife for personal
religious use. While Native Americans believe that their religious purposes are of
preeminent importance, federal agencies like the FWS, charged with enforcing the
ESA, are concerned with preservation of species rather than protection of religious
practices that may harm wildlife.
U.S. Fish and Wildlife Story
To tell the story of a government agency entrusted with the responsibility of
conserving Americas wildlife it is important to first understand why they have been
47


given this duty and why Congress felt it important enough to legislate. This centers
on the multiple themes of protecting, these species of fish, wildlife, and plants (that)
are of esthetic, ecological, educational, historical, recreational, and scientific value to
the Nation and its people.182 In other words, it is valuable for both the species and
for humans that the listed species are kept from extinction.
Armed with this legislative mandate to protect and conserve Americas
wildlife, the U.S. Fish and Wildlife Service has hired some of the most passionate
and dedicated scientists and policy makers the federal government has to offer.
These people care about their mission, to conserve, protect, and enhance fish and
wildlife and their habitats for the continuing benefit of the American people.183 It is
therefore understandable that they see anyone who does not comply with the ESA as
unsympathetic.
With regard to Native American uses of wildlife, there is a lot of dissent and
controversy. While many see tribes as being conservationists, others find their
religious use of wildlife, such as eagles, abhorrent. One such case centered on
sacrificial practices of the Hopi tribe in Arizona. For centuries, this tribe has,
captured and killed young golden eagles for ritualistic sacrifice184
The eaglets are collected in early spring, then tethered to the tops of
adobe buildings, where they are fed, given childrens toys, and told
how honored they should feel to be chosen for the ritual. In mid-July,
they are ritualistically smothered in commeal or strangled by hand so
that they may travel to the other world to explain, among other things,
how well they were treated by the tribe. 185
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Hopi religion calls for this sacrifice in order to encourage mature eagle pairs to
return to mate yearly.186 The tribe, wanting to collect its yearly eaglets, went to
nearby Wupatki National Monument. For years, this practice of collecting the eaglets
on the monument was practiced in secret.187 When it came out in the media,
conservationists were outraged that the National Park Service would allow this to
take place. They argued that the wildlife sanctuary mission of these places did not
conjoin with the practices of the Hopi. Conservationists argue that, if a species is
essential to religious practices of Native Americans, why would they recklessly kill
it? And why would the Feds encourage them?188
Currently, the debate is stalled, waiting for the Department of the Interior to
take action to either permit eaglet gathering by the Hopis at Wupatki, or to ban it
altogether. Other Native Americans object to this practice as well. Some, from the
Hopi First Mesa, where the Eagle Clan lives, sometimes sneak up to the Second
Mesa and release the eaglets.190
Although this example does not involve the FWS, it does demonstrate the
divergence of opinion with regard to use of wildlife in religious ceremonies. The
FWS, entrusted with the mission to protect and conserve all species, including such
majestic creatures as the golden eagle, may very well be horrified by sacrifices such
as these performed by the Hopi. The mission of the service and its legislative
mandate involve a moral code of conservation. That morality of the conservation
ethic is the central theme in the story of the U.S. Fish and Wildlife Service.
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Not only is the U.S. Government morally obligated to protect species from
extinction due to the scientific necessity to preserve biological diversity and the
stewardship responsibility that we have to wildlife and other species to ensure their
survival, it also has a moral obligation to preserve ecological treasures for future
generations of Americans to enjoy. This responsibility includes future generations of
Native Americans. It is therefore understandable that they find conservation to be the
only moral ethic that is justifiable, regardless of cultural or religious connections
with natural resources and wildlife.
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CHAPTER 5
LEGALISTIC NATURE OF THE DEBATE
As is true for many areas of American public policy, much of the debate that
the issue of ESA enforcement on tribal lands involves centers on legalities and the
changing tides of jurisprudence. The legalistic nature of this debate is an excellent
example of the clashing of the stories, as told by the Native Americans and the FWS.
It is in the courts that these stories have unfolded as having constitutional
implications and legal ramifications. Although history provides a succinct narration
of the two stories in this debate, the Native American story being told first due to the
longevity of their habitation in North American and their continual use of wildlife
during those centuries, and the U.S. Governments story coming to light in the past
two hundred years (in the past thirty years, if considering the story as told with
regard to the ESA); the courts have followed a dissimilar pattern with regard to these
stories. It has generally been the story of the U.S. Government that has taken
precedence in the court of law. The Native American story is most often relegated to
the role of counterstory in this context, attempting to sway judicial opinion, often
with no success.
While there have been many changes in U.S. policy towards the Native
American tribes, there have also been major changes in the legal doctrines
surrounding the debate over enforcement of the Endangered Species Act on Native
51


American lands. This chapter is intended to educate the reader on the case law
surrounding this issue. As courts have changed, so has the doctrine governing this
area of law.
The body of law that comprises Endangered Species Act issues with regard to
Native Americans is immense. It consists of cases concerning the trust relationship,
property rights, takings, and many more issues. This study intends to focus on the
case law surrounding the issue of tribal and individual rights to access, possess, and
use natural resources (including wildlife) under the ESA and complimentary
environmental laws.
This study of law illustrates one point above all others; much has been spent
in the way of resources, time, and attention to fight these battles in court. As stated,
the two sides to this debate have a common goal, that of conservation of species. It is
worth noting that perhaps there is a better way to approach this policy issue than to
simply take each dispute to court. This argument will be addressed further in
Chapters 6 and 7.
Case Law
Among the cases that this study will present, some predate current species
protection laws, and therefore set the stage for modem jurisprudential theory on the
subject. Two cases are among the most famous in this area of law and illustrate the
manner in which Native American rights in relation to conservation of species were
52


treated for many years. Finally, a series of cases sets the stage for the current state of
legal reasoning. The final case presented was decided very recently and illustrates a
change in the Courts attitude towards individual Native American rights.
Puyallup Trilogy
Three cases constitute what is referred to as the Puyallup trilogy. These three
cases all concerned the aboriginal uses of Native American lands with regard to
treaty rights. Since most were heard before (the exception being Puyallup III) the
passage of the Endangered Species Act, much of this area of legal argument has
since been changed. However, it is important to understand this legal history in order
to fully understand how Native American legal rights changed in the latter half of the
twentieth century.
The issue at hand in all of these cases centers on the Treaty of Medicine
Creek, which reserved rights to fish in the traditional manner to the Puyallup Tribe.
The tribe historically had used nets to catch salmon. The State of Washington
instituted fishing regulations, which affected the tribes traditional fishing practices
by banning net fishing.
In the first case, Puyallup Tribe v. Department of Game of Washington, heard
in 1968, the Court determined that although the state did not have the power to
nullify the tribes right to fish, it did have the power to regulate the time and manner
of fishing... necessary for the conservation of fish191 since those rights were not
53


covered under the Treaty of Medicine Creek. The Court therefore affirmed the power
of the State of Washington to regulate the practices involved in fishing but stated that
any findings on the conservation issue must also cover the issue of equal
protection for the tribes.192
In the second of the Puyallup cases, Department of Game of Washington, et
al. v. Puyallup Tribe, argued in 1973, the Court determined that the manner of
fishing, the size of the take, the restriction of commercial fishing, and the like may
be regulated by the State in the interest of conservation, provided the regulation ...
does not discriminate against the Indians.193 In this case, however, the Court
reasoned that there is discrimination here because all Indian net fishing is barred
and only hook-and-line fishing entirely pre-empted by non-Indians, is allowed.194
Since net fishing is the traditional practice of the Puyallup tribe, this regulation was,
in fact, discriminatory in nature. The Court qualified their opinion with the following
statement,
We do not imply that these fishing rights persist down to the very last
steelhead in the river. Rights can be controlled by the need to
conserve a species; and the time may come when the life of a
steelhead is so precarious in a particular stream that all fishing should
be banned until the species regains assurance of survival. The police
power of the State is adequate to prevent the steelhead from following
the fate of the passenger pigeon; and the Treaty does not give the
Indians a federal right to pursue the last living steelhead until it enters
their nets.195
This case illustrated the tenuous nature of the rights of tribes to hunt and fish in their
traditional manner. Although tenuous, it was a victory for advocates of treaty rights.
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In the final case in the Puyallup trilogy, 1976 Puyallup Tribe v. Washington
Game Department, et al., the tribe argued that the doctrine of sovereign immunity
requires that the (Washington State Courts) judgment(s) be vacated196 with regard
to State of Washington regulations restricting fishing practices on their reservation.
In the opinion, the Court stated that the state courts must continue to accord full
respect to the Tribe's right to participate in the proceedings on behalf of its members
as it has in the past without treating such participation as qualifying its right to claim
immunity as a sovereign.197 Essentially, the Court agreed that states have no
jurisdiction over fishing on reservation lands.198 These three cases provide a starting
point from which we can analyze the progression of jurisprudential theory. The
Puyallup trilogy demonstrates that the states power to regulate hunting and fishing
practices is permitted, but very limited, particularly with regard to those practices on
tribal land.
United States v. Adair
Aboriginal tribal rights were further exerted in the 1983 case of United States
v. Adair. This case focused on the allotment of historic water rights on the
Williamson River. The Federal District Court of Oregon granted water rights to the
Klamath Indian Tribe, the United States Government, and its successor. In that
decision, the Court reasoned that non-Indian individuals have water rights only
subject to the paramount rights of the Tribe, sufficient to maintain agriculture on
55


their lands.199 The Court also stated that the U.S. Government did not have the right
to fully abridge Native American water rights because the Government has no
ownership interest in, or right to control the use of, the Klamath Tribe's hunting and
fishing water rights. The hunting and fishing rights from which these water rights
arise by necessary implication were reserved by the Tribe in the 1864 treaty with the
United States.200
The reasoning behind this award of water rights to the tribe stemmed from
historical facts. Primarily, the Klamath Indians have hunted, fished, and foraged in
the area... for over a thousand years.201 The Court based its decision on the
longevity of the tribes connection to the land. In this case, treaty rights were not
exerted, but the Court, nonetheless found that the Treaty of 1864 determined the
extent to which the government could exert water rights. In this case, the aboriginal
traditions associated with the tribes historical connection to the land and the
Williamson River predated any non-Indian claims to water rights.
United States v. Dion
United States v. Dion is one of the preeminent cases in this area of law. This
frequently cited case provides the ground by which many modem cases are decided.
The Supreme Court heard Dion in 1986. Dwight Dion, the appellant, was charged
with killing four bald eagles in violation of the ESA and the Bald and Golden Eagle
Protection Act. Dions defense relied on an 1858 Treaty with the Yankton Sioux,
56


which protected the right of tribal members to take eagles for non-commercial
purposes within the reservation lands.202
The Court determined that Congress abrogated these treaty rights upon
enactment of the Bald and Golden Eagle Protection Act in 1940.203 The Court stated
that Congress,
has the power to abrogate the provisions of an Indian treaty, though
presumably such power will be exercised only when circumstances
arise which will not only justify the government in disregarding the
stipulations of the treaty, but may demand, in the interest of the
country and the Indians themselves, that it should do so.204
Therefore, the Court opined that
Dion here asserts a treaty right to engage in precisely the conduct that
Congress, overriding Indian treaty rights, made criminal in the Eagle
Protection Act. Dion's treaty shield for that conduct, we hold, was
removed by that statute, and Congress' failure to discuss that shield in
the context of the Endangered Species Act did not revive that treaty
right.205
Although this argument had been presented before by government agencies trying to
justify abrogation of treaty rights, this was the first time it worked. The primary
reason it was an effective argument stemmed from the legislative history of the Act
in question.
The court declared that in this particular case, the subject of Native American
rights was specifically addressed when debating the act in Congress. The following
is an excerpt from a letter from the Department of the Interior to Congress.
Among the many birds held in superstitious and appreciative regard
by the aborigines of North America, the eagle, by reason of its
57


majestic, solitary, and mysterious nature, became an especial object of
worship. This is expressed in the employment of the eagle by the
Indian for religious and esthetic purposes only.206
The Court also made mention of a request from the Interior Department in its
reasoning. If enacted, the bill should therefore permit the Secretary of the Interior,
by regulation, to allow the use of eagles for religious purposes by Indian tribes.207
This, the Court determined was enough evidence to prove that Congress had
effectively considered the abrogation of the treaty rights in question when debating
the bill, and therefore the claim by Dion that he was justified in killing the eagles
based on treaty rights was nullified.
The Court in the Dion decision issued a comment, which has caused further
debate and consternation. Although the Court determined that Congress had
abrogated the treaty rights under the Bald and Golden Eagle Protection Act, they
opined that, the Endangered Species Act and its legislative history... are to a great
extent silent regarding Indian hunting rights.208 This has made the water even
cloudier in the debate over whether treaty rights are still in effect under the ESA.
United States v. Billie
United States v. Billie is another of the important and celebrated cases in this
area of law. Decided in 1987, Billie took the Dion decision a bit further. The Court in
Billie determined that Congress, indeed, abrogated the treaty rights of Native
Americans when enacting the Endangered Species Act.
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James Billie was charged with taking a Florida Panther in violation of the
ESA on the Seminole Indian Reservation. Since the Panther was killed on the
reservation lands, the Court was required to decide if the tribes rights to hunt and
fish on reservation lands had been abrogated in any way. The Executive Order that
established the reservation
does not expressly mention hunting and fishing rights, those rights
were included by implication in the setting aside of the lands as an
Indian reservation. As a general rule, Indians enjoy exclusive treaty
rights to hunt and fish on lands reserved to them, unless such rights
were clearly relinquished by treaty or have been modified by
Congress.209
Billie claimed that he had the right under the First Amendment and the treaty signed
by the Seminole Indians to take the panther for religious purposes. Billie was an
apprentice medicine man and, he claimed that the panther was required for him to
learn more of the traditions of the trade.
Billie asked the Court to dismiss the charges against him based on the fact
that the government had failed to use the least restrictive means possible to
accomplish its goal of protecting the panther from extinction.210 Billie also asserted
that his treaty rights were being violated as well as his First Amendment rights to
freedom of religious practice.211 The Court disagreed with Billie on all of these
assertions.
First, the Court did not agree with Billies argument that the government
failed to use the least restrictive means available to them in enforcing the ESA. In
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their minds, the government had done what was necessary to protect the species. In
addition, as mentioned above, the Court determined that treaty rights were indeed
abrogated by Congress upon the passage of the ESA. Finally, the Court reasoned that
with regard to Billies First Amendment rights, his religious interests did not
outweigh the interests the government had in protecting the panther from
212
extinction.
The primary contribution this case has made to modem jurisprudence is that
the Court reasoned that Congress did abrogate treaty rights with the passage of the
ESA in 1973. In the opinion delivered by the Court, Justice Paine stated that the
language in the ESA demonstrate(s) that Congress considered Indian interests,
balanced them against conservation needs, and defined the extent to which Indians
would be permitted to take protected wildlife.213 The legislative history of the ESA
also shows that Congress considered exempting Native Americans from portions of
the law when it considered bills similar to the ESA, containing exemptions for tribes.
Those unpassed bills contained broader exemptions encompassing the
taking of protected species for Indian religious purposes pursuant to a
treaty, executive order, or statute. In the Senate subcommittee
hearings... an Interior Department official objected to the deletion...
of the exception for consumption and ritual use by American Indians,
Aleuts or Eskimos. He urged the subcommittee to adopt language as
found in (the alternative versions to the bill), because the Department
supported such taking for cultural and survival use when the
Secretary determines, in each case, that such taking Will not lead to
extinction or otherwise irreparably damage population stocks. The
subcommittee did not comply with this request.214
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Some scholars argue that the Courts have been reading this language into
conservation laws, even when clear evidence of intent to abrogate of treaty rights is
not available.215
Bear Lodge Multiple Use Association v. Babbitt
Devils Tower is a rock formation in Wyoming, which is sacred to many
Native American tribes.
To the Kiowas and many other Plains tribes, the huge monolith rising
from the rolling hill country of northeastern Wyoming is Bears
Lodge, the place of refuge from which young Indian girls were saved
from a giant marauding bear by being lifted into the heavens and
transformed into stars. According to some tribal teachings, this is also
the place where the material world first came into being, and the place
where through vision quests and group rituals, First Natives renew the
personal connections with eachother and nature on which their
cultural survival depends.
Because of this connection to the site, tribes come to Devils Tower to worship. It is
also a world-class rock-climbing destination. With controversy looming about
whether one use should take priority over another, the National Park Service
developed a management plan for the area. Under this plan, climbers were asked to
voluntarily refrain from climbing the rock in June of each year, which is the most
popular month to climb the rock. This is the month in which Native Americans
practice their Sundance ceremony at Devils Tower.217
A coalition of rock climbers took the case to court in 1999 alleging that the
management plan was, in effect, establishing a religion, contrary to the establishment
61


clause of the First Amendment to the U.S. Constitution. The group of climbers won
an injunction to prevent the management plan from being adopted, but lost at trial on
the merits of their case.
On appeal, the Court found that the climbers lacked the standing to sue
because they had not been injured, in fact.218 However, the Court took the time to
write a brief statement about the merits of the case. The Court stated that it did not
agree with the argument that the management plan established religion. The court
argued that, although the climbers lack standing,
the plan was designed, in part, to eliminate the barriers to American
Indians free practice of religion and such accommodation is
appropriate in situations like this where impediments arise because
the sacred place of worship is found on property of the United
States.219
This case shows a departure from some of the previous cases in the latitude that the
Court was willing to grant Native American religious practices. Although this case
addressed a collective right, rather than an individual right, to access sacred places of
worship, the direction that the Court took was a large step in securing Native
Americans right to religious worship, even on public lands. This could have an
impact on cases to follow in terms of Native American access to other religious
elements, such as wildlife.
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Harvey (Fire BircD Gibson v. Babbitt
The 1999 case of Harvey (Fire Bird) Gibson was called a collision of the
heart and mind by the Court.220 Mr. Gibson was a Native American, who was also a
decorated war veteran. His case opened the door for much discussion about what
Native Americans are entitled to after centuries of being disenfranchised. At the
heart of this case was the fact that Mr. Gibson applied to the U.S. Fish and Wildlife
Service for five eagle feathers, in order to practice his religion.221 He was denied the
permit to hold feathers due to the fact that he is not a member of a federally
recognized tribe.
The Court opined that the use of this criterion is troubling.. .given the
United States role in the forcible relocation of plaintiffs ancestors, there is
reasonable possibility that the government is responsible for plaintiffs inability to
meet the requirement.222 Yet, the Court determined that the requirement mandating
that an applicant be a member of a federally recognized tribe is permissible. The
Court reasoned that it is an acceptable requirement because,
Allowing members of non-federally recognized Indian tribes to apply
for eagle feathers would create difficult issues of proof that would
significantly inhibit the implementation of the regulation and the
achievement of the compelling governmental interest... the court
finds that the regulation limiting applicants to members of federally
recognized tribes is the least restrictive means of achieving the
regulations compelling interest of preserving and protecting Native
American religions.223
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The Court came to its decision because it found that the government had three
compelling interests at stake. First, the government had the duty to preserve the
endangered species of this country, including eagles. Second, the government had
the duty to preserve Native American religions. Third, the government had the duty
to fulfill its treaty obligations to the tribes. The Court opined that it would be
impossible for the government to accomplish all of these goals if more people were
able to apply for feathers. The Court also found that
the demand for eagle parts exceed the supply, and applicants for
permits who are members of federally recognized Indian tribes
experience prolonged delays in receiving eagle parts. Further, the
record indicates, and the district court found, that there is a sizeable
pool of individuals who are similarly situated to Gibson. Thus, it is
clear from the record that without the exemption the limited supply of
bald and golden eagle parts will be distributed to a wider population
and the delays will increase in providing eagle parts to members of
federally recognized Indian Tribes, thereby vitiating the governments
efforts to fulfill its treaty obligations to federally recognized Indian
tribes.224
In addition, the decision said that the requirement of membership in a federally
recognized tribe in itself did not violate the free exercise clause of the First
Amendment.225
This case was a set back for those advocating a greater degree of freedom and
increased rights for Native Americans to practice their religion. There are roughly
five hundred and sixty Native American tribes in the United States. Only some three
hundred are recognized by the federal government.226 This disparity demonstrates the
number of tribes and individuals who are affected by the inability to access
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government services and apply for eagle feather permits based on their lack of
membership in a recognized tribe.
United States v. Wayne Eagleboy
Eagleboy was charged with possessing hawk parts, in violation of the
Migratory Bird Treaty Act. He was not a member of a federally recognized tribe, and
therefore not authorized to obtain or possess the parts. Eagleboy claimed that he was
prosecuted in a discriminatory fashion because the regulations were based on his
membership in a recognized tribe. He alleged racism on the part of the FWS in
997
prosecution of the case.
The 1999 Court decision reasoned, the United States is correct that the non-
enforcement policy distinguishes between persons on the basis of membership in a
federally recognized tribe, not on the basis of race.228 This, the Court ruled, was an
appropriate manner in which to enforce the conservation laws under FWS
jurisdiction and allow for Native American religious freedom. The Court also
agreed, with the governments argument that the exemption for tribal members does
not amount to race discrimination simply because it was adopted as an informal
99Q
policy rather than by statue, treaty, or regulation.
Eagleboy and Gibson both illustrate a minimal emphasis on individual rights
of Native Americans to possess and obtain wildlife for use in religious practices.
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Joseluis Saenz v. Department of Interior
Joseluis Saenz saw his case travel trough the court system for several years
before the issues were resolved. Saenz, like the men mentioned in the cases above,
was not a member of a federally recognized tribe. He possessed eagle feathers in
order to participate in Native American religion and dance traditions. Those feathers
were confiscated, over which he sued to have them returned. This decision,
handed down in 2001, represents a major departure injudicial opinion from the
previous cases outlined here.231
Saenz alleged that the requirement allowing only members of federally
recognized tribes to apply for eagle feathers was not the least restrictive means
available to achieve the governments compelling interests of preserving the eagle
and protecting treaty and trust rights of tribes.232 The government argued that in
order to provide access to eagle feathers to tribes, as a means of protecting their
religious practices, it is necessary to limit the pool of applicants to members of
recognized tribes.233 The Court did not agree with this argument, reasoning that in so
doing, the government was preventing many more Native Americans access to their
sacred religious articles. The judges in this case stated, We do not believe that Mr.
Saenzs free exercise rights should be conditioned on his political statuswhether
or not he is a member of a federally recognized tribe.234 In addition, the Court
admonished the governments permitting process as being unfair. At best, the eagle
permit scheme is not the least restrictive means to the necessary end. At worst, it
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may not be a means to any legitimate end. The Courts concern over the eagle
feather permitting process was grounded in the following argument:
The federal government may find it difficult, time-consuming or
bothersome to identify authentic Indian tribes... rather than simply
politically, but the present test will never provide for the individual
free exercise of religion precisely because of cases like the present
one and because whether or not a particular tribe has been formally
recognized for political purposes bears no relationship whatsoever on
whether or not an individual practitioner is of Indian heritage by birth,
sincerely holds and practices traditional Indian religious beliefs, is
dependent on eagle feathers for the expression of those beliefs.236
This decision was handed down and subsequently set aside in August
2001. It was determined that this case, along with two others, would be heard by
the tenth circuit court of appeals as one case. This case will be discussed next. The
Saenz decision in itself represented a large victory for proponents of Native
American tribal and individual rights to access wildlife parts in order to practice their
religion.
United States v. Raymond Hardman
In August of2002, the trio of cases discussed above was heard and decided
by the Tenth Circuit Court of Appeals. This compilation case involved three
appellants. Raymond Hardman, Joseluis Saenz, and Samuel Wilgus.238 Saenzs case
was the same as discussed above. Hardman and Wilgus were charged with illegally
possessing eagle feathers. Wilgus claimed that he was an adopted member of the
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Paiute tribe.239 Hardman was also a non-Indian, but had practiced the Native
American religion for many years.240
The cases, argued simultaneously, were litigated on the same grounds as
Saenzs case, above. The appellants argued that any incidental burden on the free
exercise of appellants religion (must) be justified by a compelling state interest in
the regulation.241 The Court found that the governments interest in preserving
Native American culture and religion are compelling interests. However, simply
because the government has a compelling interest does not mean that it does not
have to prove that the regulations meet the least restrictive means test.242
In deciding the case, the Court argued that Hardman and Wilgus had not
developed a record with respect to their cases. Those two cases were therefore
remanded for further consideration to the lower courts.243 The landmark element of
this decision is in regard to the Saenz case. Since he had developed an extensive
record of his case, the Court agreed to decide his case.244
The Tenth Circuit Courts decision was in agreement with the decisions
handed down by the lower courts in this case. Under the Courts reasoning,
the government has failed to show that limiting permits for eagle
feathers only to members of federally recognized tribes is the least
restrictive means of advancing the governments interests in
preserving eagle populations and protecting Native American
culture.245
Although the government had a compelling interest to both protect the eagle and to
preserve Native American religion and culture, it still had to prove that it was using
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the least restrictive means necessary to accomplish those goals in restricting Saenzs
access to eagle feathers. Refusal to find Saenz to be an Indian practicing an Indian
religion ignores plain facts, belittles sincere religious beliefs and unreasonably
restricts the access to feathers.246 The Court found that the regulations currently in
place do not constitute the least restrictive means.
This case will likely change much of the way that this area of law is decided.
It will also change how the U.S. Fish and Wildlife Service administers the eagle
feather permitting process. Native Americans of many tribes celebrated this decision
as a victory for freedom of religious practice.
Table 5.1 illustrates the course that this case law has taken since the Puyallup
Trilogy of cases was heard from 1968 through 1976. In the past two decades,
jurisprudential opinion has changed drastically. The case law in this area shows a
marked change in the past several years. Previously, courts had sided with the
government frequently. The interests of species preservation usually took precedence
over Native religious practices. This has changed since the year 2000, when the
Saenz decision was rendered for the first time. Courts are now taking individual and
tribal rights to religious access to wildlife parts very seriously. Many more Native
Americans cases can be anticipated in the future, now that there are signs of
agreement within the judiciary with regard to Native American religious rights. It
appears, from this analysis of the trends in case law, that courts are considering
rights to religious freedom more heavily than in decades past.
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Table 5.1- Table of Cases
Name of Case Date Decided Courts Decision Reasoning Degree of Individual/ Tribal Rights Bestowed by Decision
Puyallup Tribe v. Dept, of Game of Washington247; Dept, of Game v. Puyallup Tribe248; Puyallup Tribe v. Washington Game Dept.249 1968; 1973; 1976 Puyallup I: the state cannot abrogate the right to fish, but can regulate the manner. Puyallup II: the state cannot forbid all net fishing by Indians, which is discriminatory in nature. Puyallup III: states have no jurisdiction over hunting and fishing on reservation lands. All of these cases looked at the historical treaty rights and determined that conservation measures can be taken, but cannot abrogate treaty rights to hunt and fish on traditional lands. Moderate
U.S. v. Adair210 1983 On appeal, the Court determined that individual rights to water on the Klamath reservation lands were not to be held above the water rights of the Tribe. Based on treaty rights and aboriginal hunting and fishing practices, water rights were determined many generations before current law. High
U.S. v. Dion231 1986 The Court reversed a decision to vacate the conviction of a Native American man who shot four eagles. Congress abrogated treaty rights when passing the Bald and Golden Eagle Protection Act, as demonstrated by the legislative history of the bill, which included a letter specifically addressing the issue of Tribal religious practices with regard to eagles. Low
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Table 5.1 (Cont.)
Name of Case Date Decided Courts Decision Reasoning Degree of Individual/ Tribal Rights Bestowed by Decision
U.S. v. Billie"" 1987 The U.S. District Court for Southern Florida determined that Billie illegally took a Florida Panther in violation of conservation laws. Congress abrogated treaty rights when passing the ESA. In addition, Billie religious interest in possessing a panther did not outweigh the governments interest in protecting the species. Low
Bear Lodge Multiple Use Association v. Babbitt253 1999 The Court found that the climbers in this case lacked standing to sue because they had suffered no actual harm. However, the Court did address some of the issues in question. The plan to accommodate both climbing and religious ceremonies did not in effect establish a religion. It was instead, accommodating religion. Moderate
Harvey (Fire Bird) Gibson v. Babbitt254 1999 The Court found that the plaintiff was not entitled to possess eagle feathers. The governments method of distributing eagle feather permits based on affiliation with a federally recognized tribe constitutes the least restrictive means to accomplish the goal of preservation of the species. Low
U.S. v. Wayne Eagleboy255 1999 The Court found that Eagleboy was not prosecuted based on his race, and therefore had no grounds for dismissal. The requirement that individuals be a member of a federally recognized tribe is based on membership, not race. It is therefore not discrimination. Low
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Table 5.1 (Cont.)
Name of Case Date Decided Courts Decision Reasoning Degree of Individual/ Tribal Rights Bestowed by Decision
Saenz v. DOI256 2001 The Court ordered eagle feathers returned to the appellee and found that the permitting process of the FWS was not permissible. The Court determined that the government was not using the least restrictive means necessary in granting permits for eagle feathers. High
U.S. v. Raymond Hardman257 2002 The Court remanded the cases of two of the appellees, but in the case of Saenz (same as above), the Court affirmed the decision to return the eagle feathers and change the permitting process. Again, the Court determined that the governments requirement that a person be affiliated with a federally recognized tribe is too narrowly constructed and did not constitute the least restrictive means to accomplish its goals of preserving eagles. High
This study of case law also illustrates the nature of the debate over Native
American uses of wildlife. This is just one subset of the debate over enforcement and
implementation of the ESA and similar species protection laws in regard to tribal
members and tribal lands. The two stories, those of the Native Americans and the
FWS, have been traditionally set firmly against each other due to the divisive nature
of the conflict and the nature of the moral, ethical, religious, and legal debate. This is
how the stories outlined in this study have been argued for decades. However, this is
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changing. The future of this debate may see more compromise and understanding
and is the subject of the final chapters of this thesis.
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CHAPTER 6
THE METANARRATIVE:
PARTNERSHIPS AND THE FUTURE
The metanarrative is an opportunity to look at both stories and find any
commonalities between the two. This search is helpful in determining if there is any
starting point from which to work towards policy change. In the case of enforcement
of the ESA on tribal lands, both the U.S. Fish and Wildlife Service and the Native
American tribes have highly ingrained beliefs.
FWS comes to the debate with a legal mandate from the United States
Congress to conserve and protect listed species for the benefit of the nation and
future generations of Americans, and most FWS employees value this ethic. Tribal
members come into this debate with a long history of distrust and legal uncertainty
with regard to the United States Government. However, tribal members, for the most
part, also have a core value of conservation. Much of their cultures and beliefs are
based upon a reverence for nature and a belief that they are connected to the vast
web of life that includes all of the species of this planet. From this common desire to
promote conservation and protection of species, this study will now determine if
there is room for tribes and the FWS to work in unison towards making the
relationship more amenable to accomplishing the simultaneous goals of conservation
and protection of religion and culture.
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Rhetoric
The current state of the debate is clouded by conflicting rhetoric from both
parties. The Native American interests are using the issues of liberty and freedom to
further their passionate argument. Their position is that liberty can be defined in a
negative manner, specifically, lack of interference with individual action.258 Tribes
are also using the claim that harm has been done to their liberties through harm to a
group that results from harm to individuals.259 In addition, tribes have been using
symbols as a tool of rhetoric. For many Native American tribes, stories involving
wildlife as symbols depict how the world works. This passionate and
compelling rhetoric has influenced the policy debate from the tribal perspective.
Among the governments arguments there is much rhetoric as well. FWS has
staked out position opposed to tribes in a manner consistent with typical political
discourse. The sides in politics are said to be interests. They are groups that have a
stake in an issue or are affected by it. The FWS treats the interests of the
government as those that are policies a person would want if he or she has
knowledge about all the alternatives and were free to choose.262 This however,
diminishes the level of ability of the tribes to engage in intelligent and effectual
debate and policy implementation, by assuming that the government knows what is
best for the people, in a paternalistic manner.
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Conservation: The Metanarrative
It is important to move past this policy rhetoric and the judicial conflict
outlined in Chapter 5 in order for positive change to occur. The two sides of this
debate actually have more in common than one might at first believe, primarily a
common desire to preserve species and protect the natural world. This core belief
among members of both parties, that conservation of species is essential and a
morally imperative duty, is the point from which we should begin this policy
discussion. At first glance, it may seem as if the two sides of this debate have very
little in common. Yet, by understanding their stories and history, it is possible to
realize that underlying their unique stories is a desire to protect species from
extinction, whether because of religious reverence for wildlife or because of a
congressional mandate to do so.
There are many issues that underlie the metanarrative. Native Americans
often believe that the ESA should be more holistic in its approach to conservation,
protecting all species and their ecosystems instead of individual imperiled species.
It is within their belief system that the entire ecology of the planet should be
protected due to the spiritual and cultural connections that nature represents.
However, this attitude has generally been relegated to a wishful thought. Since the
ESA is the most powerful law that the United States has for preserving species and
biological diversity, it is within this context that the FWS and the tribes must learn to
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cooperate and work towards conservation jointly until a more effective and more
holistic law is passed, if that occurs.
As has been demonstrated in Chapters 3, 4, and 5, the enforcement of the
Endangered Species Act on tribal lands and in regard to Native American individuals
has been controversial and divisive at times. This chapter will demonstrate that it
does not have to be dealt with in this manner. Based on the premise that both the
U.S. Fish and Wildlife Service and the Native American tribes have a common
desired goal of conservation of wildlife, partnerships have become a successful
alternative in implementing the ESA.
This chapter will present five cases in which success has been demonstrated
with regard to partnerships between the FWS and tribes. Some have been more
successful than others, and as with any political situation, not all agree that these
cases have been a success. However, they are important in demonstrating that this
policy debate does not always have to be framed as divisive and rigid.
Case Studies
Case studies were chosen for the purposes of this study to demonstrate that
congruency can be found between these two opposed parties and that common
ground can be used in order to further the mutual goals of conservation of species
and protection of religious and cultural practices. The following case studies enable a
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discussion of the realistic possibilities of engaging in partnerships and the problems
and possibilities that accompany those partnerships.
The Gray Wolf and the Nez Perce Tribe
The Gray Wolf was historically an abundant animal throughout much of the
United States. However, by the 1930s, almost no wolves remained in the lower forty-
eight states.264 Until the 1960s, bounty hunters killed wolves across the country in
order to protect livestock. Due to the rate at which the Gray Wolf was nearing
extinction in the United States, it was listed as endangered under the ESA in 1974.266
The wolf is listed as endangered in Colorado, Idaho, Michigan, Montana, North
Dakota, South Dakota, Washington, Wisconsin, and Wyoming; and is classified as
threatened in Minnesota.267
The Gray Wolf mates for life, and is therefore difficult to recover as a
species. Due to the efforts of many government agencies and their partners, the Gray
Wolf has rebounded. Populations were reintroduced into the Yellowstone area and
Idaho in 1995.268 In 1997, the number of wolves in Idaho numbered around seventy-
five.269 This remarkable recovery has lead to the possibility of the wolf being taken
off the endangered species list within the foreseeable future.270
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Figure 6.1- Historic Range of the Gray Wolf271
Historic Range of the Gray Wolf
Figure 6.2- Range of the Gray Wolf at Time of ESA Listing272
Gray Wolf Range at Time of Listing
When the FWS reintroduced the gray wolf to the lower forty-eight states,
they asked that the states agree to manage the wolf once the animals were released.
Since it was a hot topic politically, many states were reluctant to participate. Idaho
was one state that did not want to be a part of the program.273 Knowing that the state
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government would not participate, but wanting to support the reintroduction of the
sacred wolf, the Nez Perce Tribe intervened. They contracted with the U.S. Fish and
Wildlife Service to manage the wolves in Idaho.274 The tribe is responsible for
educating the public about the animal and tracking and studying the wolf pairs
throughout its region.275 This partnership was the first of its kind, and illustrates an
example of what can be done given the resources and willingness from both parties
to conserve a species.
The tribe is a partner with the FWS as are several other state governments.
This unique partnership has provided the tribe and the FWS with unusual
opportunities. They bring a different attitude about wolves- a reverence for wildlife
is part of their heritage, said Ed Bangs, wolf recovery coordinator for the FWS in
Montana.276 Since the tribe lives in the area, they also understand the issues and
concerns that local citizens have with regard to wolf reintroduction and are able to
deal with those issues better than an outsider according to Bangs 277
The Nez Perce bring a unique perspective to the project. The traditions that
the tribe brings to the table enrich the appreciation for the wolf. The Nez Perce also
has a wealth of resources to offer in regard to its people. The tribal treasurer, Jaime
Pinkham is not only trained in the tribal ways, but he holds a forestry degree and has
worked for state and federal land management agencies.278 We dont discount the
old wisdom, but there is a way to marry that with science, said Pinkham.279
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The ability and willingness of the tribe to work with the FWS to conserve and
protect the wolf is one successful example of tribes and government agencies
working in unison to fulfill their joint mission. This example not only proves the
point that partnerships can work, when entered into jointly and agreeably, but also
shows that the tribes can add a valuable perspective to the culture of conservation in
government agencies. The gray wolf benefited incredibly from this undertaking.
Figure 6.3- Current Range of the Gray Wolf280
Current Gray Wolf Range
and Recovery Areas
Gray wolf recovery area
in the Southwest
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The Grizzly Bear and the Tribes
Another example of tribal involvement in managing endangered species is
the case of the reintroduction of the Grizzly bear. Much like the Gray Wolf, the
Grizzly bears reintroduction caused much concern among livestock owners and
local citizens. Livestock depredation control, habitat deterioration, commercial
trapping, unregulated hunting, and the perception that grizzlies threatened human life
were leading causes of the animal's decline.281 The Grizzly, a symbol of American
wilderness, was in need of serious help when it was listed as threatened in 1975.282
It is believed that there were once over fifty thousand Grizzlies in the lower
forty-eight states. By the time the bear was added to the endangered species list,
there were less than one thousand.283 Grizzly bears need a very large home range
(50 to 300 square miles for females; 200 to 500 square miles for males),
encompassing diverse forests interspersed with moist meadows and grasslands in or
near mountains. In the spring, bears usually range at lower elevations and go to
higher altitudes for winter hibernation.284 In order to ensure their survival, the FWS
recovery plan called for reintroduction of the bear in all of the ecosystems that had
the components to host Grizzly bears. The six ecosystems in the conterminous U.S.
that have been identified by biologists as suitable for grizzly bears are: Yellowstone
(northwestern Wyoming, southwestern Montana, and eastern Idaho), Northern
Continental Divide and Cabinet-Yaak (northwestern Montana), Bitterroot (central
Idaho and western Montana), Selkirks (Idaho and eastern Washington), and the
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North Cascades (Washington).285 Again, the Nez Perce stepped in to offer their
tribes assistance in the reintroduction and management of the bears in the Bitterroot.
This time, however, they were not alone. The Blackfeet tribe also offered much of its
reservation land to be used as the Grizzly bears new range.286
This was not the Blackfeets first foray into conservation management. Prior
to this, the swift fox was on the verge of being placed on the endangered species list.
The fox lived on the Blackfeet reservation, which allowed for an opportunity for
proactive conservation work. The tribe partnered with a conservation NGO,
Defenders of Wildlife, to prevent the fox from being listed. They imported foxes
from Canada and reintroduced them on the reservation land.287 When the Grizzly
bear issue came to the fore, the tribe was already experienced at the workings of
species recovery plans and management.
The Nez Perce, along with fourteen other members of the Citizen
Management Committee were charged with management decisions and duties once
the Grizzly bear was reintroduced into their region. The tribes, through whom
management of the bear is done, as well as the tribes on whose property the bear was
reintroduced, are active and essential members of the Interagency Grizzly Bear
Commission and participate in all of the decisions made with respect to the
conservation efforts of the bear.288
There has been much debate over whether this case is truly a success story.
Some tribes are asking for more latitude in controlling the bears and the ability to kill
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nuisance animals. The FWS calls the reintroduction a success in many areas and
attributes these successes largely... to a cooperative effort among several
organizations called the Interagency Grizzly Bear Committee including the
tribes. However, it illustrates another example of how tribes can work in
conjunction with government agencies in order to protect species. The Grizzly bear,
like the wolf, has been helped significantly by the recovery efforts of both the
government agencies and the tribes. Again, one of the symbols of the American
wilderness has been helped from the brink of extinction by a partnership between
Native Americans and government agencies.
InterTribal Bison Cooperative
The bison is the chief of all animals, and represents the earth, the totality of
all that is. It is the feminine, creating earth principle which gives rise to all living
forms.290 The American buffalo, or the Bison, is a symbol of a rich history for many
tribes. This majestic animal is also a spiritual symbol for many Native Americans.
The InterTribal Bison Cooperative (ITBC) has been met with mixed reviews with
regard to its success. It was formally established in 1992 in order to coordinate and
assist tribes in returning the buffalo to Indian country.291 Up to this point, each
individual tribe had conducted production of buffalo for sale, subsistence, and
cultural use alone. The ITBC was created a means to make a partnership among
many tribes in order to ensure the propagation and success of returning the buffalo to
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Native American tribes.292 The mission of the ITBC is simple, to restore bison to
Indian Nations in a manner that is compatible with their spiritual and cultural beliefs
and practices.293
Currently, fifty-one tribes participate in the program. They collaborate in
order to determine where buffalo resources are partitioned. The tribes have other
partners in their cooperative as well. The National Wildlife Federation and tribal
conservation agencies assist with consultation and advice.294 However, all of the
decisions are made based on tribal negotiations.
The ITBC had a noble purpose to start out, but recently, they have moved
towards looking at the bison issue in more of an economic rather than spiritual or
cultural manner, says David Redhorse, Native American Liaison for the U.S. Fish
and Wildlife Services Mountain-Prairie Region.295 Since the cooperative is managed
solely by the tribes that participate in and benefit from the bison that are allocated, it
has become very politicized in recent years.296 Tribes attempt to gain a monopoly
over the decisions and gain more bison in the process, with which they make more
money. However, there is a disparity once again with regard to who can benefit from
the program. As discussed earlier, there are some five hundred and sixty tribes in the
Unites Sates. Only fifty-one participate in the ITBC, and only participants are
qualified to be allocated bison.297 This disparity is at the root of much criticism of the
ITBC.
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Although opinions vary regarding ITBC purpose, motives, and actions, it has
demonstrated that tribes can work together, although their beliefs may differ in many
ways, to work for the propagation and reintroduction of a species.
The Zuni Eagle Aviary
Eagles have served many purposes for Native American tribes. The eagle is
among the most revered of the sacred animals to many tribes. The following two
cases will examine various ways in which the U.S. Fish and Wildlife Service is
attempting to work with tribes in order to provide them with access to eagle feathers
and eagle parts, while ensuring the conservation and limit the illegal killing of
eagles. The people of the Zuni pueblo in southwestern New Mexico provide an
example of self-determination and entrepreneurial spirit in attempting to benefit the
eagle and their tribes religious practices simultaneously.
The Zuni believe that many species are sacred and some are considered to
be incarnations of our ancestors. One of these is the eagle, and many aspects of
(their) religion call for the use of eagle feathers.298 The Zuni tribe submits an
unusually high number of feather requests to the Eagle Repository. This is largely
due to the fact that the Zuni is one of the most traditional tribes in North America.
Devotion to tradition is the reason for the many requests for feathers.299 In order to
get the feathers that they need for religious purposes without waiting for a long
period through the Eagle Repository, run by the FWS, the Zuni decided to go another
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route. They requested permission from the FWS to establish their own aviary for
injured or sick birds, specifically eagles. The FWS agreed, and gave the tribe the
permits required to possess the eagles.300 With a legitimate ceremonial need and the
proper permits, any tribe can have an eagle aviary. But to fulfill the various technical
requirements, it takes some innovation and a great deal of determination, said John
Antonio, FWS Native American Liaison for Region 2, in New Mexico.301
Figure 6.4- Immature Golden Eagle Feathers302
The Zuni built a state of the art facility among the sandstone mesas of their
reservation for their birds in 1999. The birds are given plenty of room to exercise in a
huge flight area, and live out their lives on the Zuni pueblo. If they had not been sent
to New Mexico, most of the eagles would have been put down since they cannot be
released back into the wild because of injury or sickness and because it is illegal for
anyone to possess the eagles in captivity without the permits that the Zuni
obtained.303 While in captivity, the eagles also provide the tribe with the feathers that
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they need for ceremonial purposes through regular molting.304 Eleven birds were
housed at the aviary as of 2000.305
Since knowledge of the Zuni aviary has spread, other tribes have considered
building facilities of their own. In Oklahoma, the tribes collectively agreed to start
the permitting and building process for an aviary in their state.306 Not all tribes may
wish to participate in projects such as this one on the Zuni reservation. Some
Northern tribes value the free and majestic nature of the eagle, and would therefore
be unlikely to want captive birds.307 However, this project illustrates the desire on
the part of many Native American tribes to work toward species conservation. This
example shows one positive way in which they can save eagles and also collect
feathers to use in ceremonies without harming the birds. Given the opportunity and
resources, many tribes would welcome the prospect of engaging in projects such as
this one. This is a fine example of self-determination for Indian people... not only
does this facility help meet the current demands for ceremonial purposes, it
represents sovereignty that will, above all, preserve native culture, according to
John Antonio.308
FWS Eagle Repository
Although managed entirely by the government through the U.S. Fish and
Wildlife Service, and therefore not a partnership, the Eagle Repository in Denver,
Colorado is an example of an attempt to accommodate the dual goals of conservation
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