Why eagle feathers could land this Native American pastor in prison

Nearly a decade after a federal agent with the U.S. Fish and Wildlife Service entered a sacred powwow in McAllen, Tex., to confiscate them, pastor Robert Soto finally has his eagle feathers back.

But a cloud of fear still hangs over his congregation. Attendance is down at the McAllen Grace Brethren Church, where worshipers are Christian but express their faith through Native American traditions. And no one will risk talking about any eagle feathers they might possess — let alone wear them.

This is what years of litigation and fear of criminal prosecution has done to his community, says Soto, who is vice chairman of the Lipan Apache Tribe of Texas. And it’s not over yet.

Soto and other members of the church have been locked in a legal battle with federal officials over their right to use eagle feathers in Native American religious ceremonies as their people have done for centuries. Today, they will appear before a federal judge in the latest chapter of this legal drama that observers have called “one for the ages.”

‘Operation Powwow’

It began in March 2006, when an undercover federal agent attended a powwow and noticed that Soto was wearing a ceremonial headdress with two golden eagle feathers in it. His brother-in-law, Michael Russell, wore a traditional bustle fashioned with feathers loaned to him by Soto.

Federal agents confiscated Russell’s feathers and cited him for violating the Eagle Protection Act. They later ordered Soto to surrender his feathers under the threat of being criminally prosecuted. In total, 42 feathers were confiscated by the federal government. According to Soto, it was called “Operation Powwow.”

“I think if I remember anything of that day, it was the children running around. And some were crying and some were trying to hide,” Soto said, recalling the 2006 raid. “My wife, she was running in the kitchen, she goes ‘hide our bustles, hide our feathers because the government is here to take them all.’ ”

“It wasn’t just coming in and doing their job. It was violating everything we were as Native people,” he added.

The Lipan Apaches — and many other Native American religions — hold eagles to be sacred because of their physical and spiritual closeness to God. Eagle feathers and parts are considered sacred objects that are used in prayer, worship and for ceremonial cleansing.

The case has become not just a battleground over religious freedom, but also highlights the arbitrary and sometimes adversarial nature of the relationship between the U.S. government and tribal people.

The Lipan Apache Tribe dates its history back more than 300 years — longer than Texas has been a part of the United States. They are a legally recognized tribe by that state, Spain and Mexico — just not the U.S. government. (Neither a 2009 nor a 2012 petition for federal recognition — in the midst of Soto’s legal battle over the feathers — were accepted.)

And according to the federal government, only Native Americans from federally recognized tribes can possess and use eagle feathers in religious ceremonies. Anyone else caught with them could be fined or imprisoned — and that includes Soto and members of his tribe.

Permits for religious expression

The distinction between federally recognized tribes and non-recognized tribes is a fairly recent one. Only in 1999 did the Department of the Interior use its regulatory authority to make that clear — nearly three decades after federal regulations were amended to specify that Native Americans using the feathers for religious purposes were exempted.

Luke Goodrich, an attorney with the Becket Fund for Religious Liberty, which is representing Soto and other plaintiffs in the case against the Department of the Interior, said that he suspects that the government is seeking to limit eagle permits to members of federally recognized tribes to aid agents in the field.

“It just makes it much easier to figure out who is a Native American and who is not,” Goodrich said. “If the test was ‘are you a bona fide practitioner of a Native American religion,’ there’s no ID for that.”

Bald eagles and golden eagles are stringently protected by the Migratory Bird Treaty Act and the Eagle Protection Act. In addition to potentially prosecuting anyone found buying, selling or killing eagles, the government also keeps an inventory of eagle feathers and parts in a repository in Colorado.

Native American petitioners seeking parts or feathers for ceremonies can request them from the repository. However, there is a wait list that takes about six months for individual feathers and about three and a half years for requests for whole birds.

Goodrich notes that limiting petitioners to federally recognized tribes also helps prevent the repository wait list for bird parts from ballooning.

“It’s handing out permits for people to exercise their religion,” Goodrich said.

That raises some pretty broad religious freedom questions, he added. But in the case, which will be heard before a Federal District Court judge in Texas this afternoon, they are hoping for a more limited judgement that, at the very least, gives Soto and his tribe the ability to keep or acquire feathers without fear of future prosecution.

The government, on the other hand, has filed to have the case dismissed on the grounds that the feathers have already been returned.

A cloud of suspicion

When the Department of the Interior returned the tribe’s confiscated feathers in March 2015, they told Soto that he could have them in his possession but couldn’t loan them to anyone — Native American or otherwise. Thirty-six of them, which had been fashioned into a bustle, could only be used in a type of dance that Soto no longer performs. Because he can’t loan them to anyone, they now sit in his home, unused.

According to a declaration filed by Soto in federal court, the once-growing congregation is now dwindling. Just before the raid, the church planned to pay Soto a salary for the first time — afterward, those plans were put on hold indefinitely.

The church’s ministry has been curtailed, and Soto developed heart problems that he attributes to stress associated with this case.

The cloud of suspicion also means that anyone else with feathers in the community is hesitant to wear them. And Soto’s decision to wear two of the once-confiscated feathers on his headdress have sparked controversy in his own family.

“[Soto] has other feathers that he is afraid to use in public. And other members of the community … some are afraid and they have either placed their feathers in hiding or gotten rid of them and are taking a wait-and-see approach,” Goodrich said.

Yet others have been more defiant.

“There’s one guy in particular who says: We have a right to wear these feathers and I’m not going to dance with imitation feathers. I’m going to keep exercising my religion whether the the government comes after me or not,” Goodrich said.