[Federal Register: June 15, 2007 (Volume 72, Number 115)]
[Proposed Rules]               
[Page 33188-33190]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Fish and Wildlife Service

50 CFR Part 21

RIN 1018-AV14

Migratory Bird Permits; Religious or Spiritual Use of Feathers by 
Native Americans

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Advance notice of proposed rulemaking; notice of intent to 
prepare an environmental assessment; request for comments and 


SUMMARY: The U.S. Fish and Wildlife Service is considering amending its 
migratory bird regulations to allow Native Americans to acquire parts 
and feathers from birds other than eagles for religious or spiritual 
use. No current regulations govern the acquisition and possession of 
migratory bird parts and feathers of birds other than eagles for Native 
American religious or spiritual use. We have a compelling interest in 
protecting the traditional religious and spiritual resource values of 
Native Americans as part of our trust relationship with federally 
recognized Native American tribes. We recognize the need to balance 
this compelling reason against the equally compelling basis for the 
Migratory Bird Treaty Act. We seek information necessary to prepare an 
environmental assessment under the National Environmental Policy Act 
and its implementing regulations for a possible proposed rule.

[[Page 33189]]

DATES: To ensure consideration, we must receive your written comments 
and suggestions on or before August 14, 2007.

ADDRESSES: Viewing Comments: If you wish to view the complete file for 
this action, including comments and materials submitted by others, you 
may call (612) 713-5436 to make an appointment, during normal business 
hours, to view materials at the U.S. Fish and Wildlife Service, 1 
Federal Drive, Ft. Snelling, MN 55111.
    Submitting Comments: When submitting comments, refer to RIN 1018-
AV14 and please include your name and return address. Please submit 
your comments by only one of the following methods:
    1. U.S. Mail: Andrea Kirk, Permits Administrator, Migratory Birds 
(use address above);
    2. E-mail: otherfeathers@fws.gov;
    3. Submit comments via http://www.regulations.gov and reference RIN 

1018-AV14; or
    4. Fax: (612) 713-7179.

FOR FURTHER INFORMATION CONTACT: Andrea Kirk, Permits Administrator, 
Migratory Birds--Region 3, U.S. Fish and Wildlife Service, 1 Federal 
Drive, Fort Snelling, MN 55111.



    We, the U.S. Fish and Wildlife Service (Service), are the Federal 
agency with the primary responsibility for managing migratory birds. 
Our authority is based on the Migratory Bird Treaty Act (MBTA) (16 
U.S.C. 703 et seq.), which implements conventions with Great Britain 
(for Canada), Mexico, Japan, and the Soviet Union (Russia). Activities 
with migratory birds are prohibited unless specifically authorized by 
regulation. Regulations governing the issuance of permits for migratory 
bird use are authorized by the MBTA and are found in title 50, Code of 
Federal Regulations, parts 10, 13, 21, and 22. According to 50 CFR 
21.11, permits are required for most actions involving ``any migratory 
bird, or the parts, nests, or eggs of such bird.''
    The MBTA contains no express provisions regarding the religious/
spiritual use of migratory bird feathers. However, we recognize the 
significance of the parts and feathers to Native American religious/
spiritual practices under the American Indian Religious Freedom Act (42 
U.S.C. 1996; AIRFA), a policy statement issued by Secretary of the 
Interior C.B. Morton in 1975, and our 1994 Native American Policy. The 
American Indian Religious Freedom Act (AIRFA), passed in 1978, 
clarifies U.S. policy pertaining to the protection of Native American 
religious freedom. AIRFA acknowledges prior infringement on the right 
of freedom of religion for Native Americans and clearly states that 
laws passed for other purposes are not meant to restrict the rights of 
Native Americans. The Morton policy statement provides Native Americans 
protection from Federal prosecution, harassment, or other interference 
for their possession, transport, use, donation, exchange, or loan of 
the feathers of federally protected species without compensation. The 
Morton policy statement also protects Native Americans who wish to 
possess bird parts and/or feathers to be worked on by tribal craftsmen 
for eventual use in religious/spiritual activities and allows the 
transfer of parts and/or feathers to tribal craftsmen without charge.
    Our 1994 Native American Policy states that we must expedite 
processing and distribution of animal parts to Native Americans. 
Between 1990 and 2000, our National Eagle Repository distributed eagle 
parts and feathers to enrolled tribal members. Regulations governing 
permits for use of eagle parts and feathers are in 50 CFR Part 22. The 
Repository also distributed migratory bird parts and feathers from 
birds other than eagles to enrolled tribes. We conducted this 
distribution on an ad-hoc basis under the authority of 50 CFR 21.27, 
Special Purpose Permits, with no criteria or conditions specific to 
Native American religious or spiritual use. In 1999, we temporarily 
suspended distribution of non-eagle feathers, due to administrative 
resource constraints. We now intend to prepare an environmental 
assessment for a possible proposed regulation for the legal acquisition 
by Native Americans of non-eagle feathers for religious/spiritual use.

Environmental Assessment

    We intend to prepare an assessment in order to analyze the 
potential impacts of various alternatives for establishing a legal 
mechanism for the acquisition of non-eagle feathers by Native Americans 
for religious/spiritual purposes. We will assess potential impacts on 
the natural and human environment that may result from different 
alternatives for legalizing the acquisition of these feathers, 
including impacts to Native American culture and religion. We 
particularly solicit comments on the following topics (most of these 
are discussed further following the list):
    (1) The source(s) of the parts and feathers that we would make 
    (2) What criteria or conditions we should establish for individuals 
to be eligible to receive the migratory bird parts and feathers;
    (3) How different means of legal acquisition may affect Native 
American tribes;
    (4) How Native American tribes could be affected if we extend such 
authorization to other persons in addition to enrolled members of 
federally recognized Native American tribes;
    (5) The extent of Native American demand for the parts and 
    (6) Whether the types of feathers being requested should be limited 
to those historically significant to the tribe acquiring them;
    (7) Which species of migratory birds are most valuable for Native 
American religious/spiritual purposes;
    (8) Potential impacts to migratory bird populations and other 
wildlife; and
    (9) Other concerns the public may have related to this initiative.
    Further discussion of selected items from above list follows:
    (1) Sources. The sources of the parts and feathers to be made 
available is one of the primary concerns of this notice. The merits of 
centralized availability, such as the National Eagle Repository, versus 
decentralized availability, the extent to which tribes will have access 
and input into the source availability and eventual acquisition, and 
the various avenues for acquiring the feathers and parts are issues 
upon which we seek comments, suggestions, and guidance from interested 
    (2) Eligibility. The MBTA, unlike the Bald and Golden Eagle 
Protection Act (16 U.S.C. 668a), does not provide for possession of 
migratory birds for religious/spiritual purposes by Native American 
tribes, regardless of whether or not they are members of recognized 
tribes. However, we have traditionally limited access to migratory 
birds and their parts to enrolled members of recognized tribes. We seek 
input on the potential impacts of providing legal access to non-eagle 
feathers for religious/spiritual use to individuals other than enrolled 
members of recognized tribes, including impacts to enrolled tribal 
members, members of non-recognized tribes, or other affected parties.
    (3) Means. We will look favorably upon methods that involve 
decentralized availability and recognize tribal autonomy. We seek a 
solution that will uphold the MBTA without placing a burden on our 
    (4) Demand. We seek input, suggestions, and comments on possible 
uses, the frequency and pervasiveness of these uses, and an estimation 
of the

[[Page 33190]]

demand upon the resource for these uses.
    (5) Wildlife Population and Habitat Impacts. We do not expect to 
authorize any means of acquisition that would affect migratory bird or 
wildlife populations or impact wildlife habitat. We do not anticipate 
take from the wild of live birds through hunting or any other method. 
However, we seek input, comments, and suggestions on this issue.

    Authority: The authorities for this notice are the Migratory 
Bird Treaty Act of 1918, as amended (16 U.S.C. 703-712), and the 
Bald and Golden Eagle Protection Act (16 U.S.C. 668a).

    Dated: May 29, 2007.
David M. Verhey,
Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E7-11559 Filed 6-14-07; 8:45 am]