E7-11559. 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 information.

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.

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 [phone] 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: [e-mail];

3. Submit comments via http://www.regulations.gov and reference RIN 1018-AV14; or

4. Fax: [phone].

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.

SUPPLEMENTARY INFORMATION:

Background

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 available;

(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 feathers;

(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 parties.

(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 resources.

(4) Demand. We seek input, suggestions, and comments on possible uses, the frequency and pervasiveness of these uses, and an estimation of the 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.