Wednesday, January 09, 2013
Failure Chronicles, Pt. 2: "Illegal Eagles"
Buoyed by the veritable stampede of academics who have come forward with their own tales of professional failure in the comment section of my last post, I will now continue on my narcissistic parade through some of my recent professional fiascoes. As I noted in that last post, before I had the idea for the ill-fated "Bleep!" I wanted to write a book about eagle feathers. After I published Holy Hullabaloos, which was about my travels to different places where big Supreme Court religion cases originated, I wanted to write something about Native American religion, a topic that I had unfortunately not gotten to in HH. Since I also teach environmental law and natural resources law, I was excited to come across the case of Sam Wilgus, a non-Indian who practices Native American religious rituals and who was arrested for possession of eagle feathers in violation of the Bald and Golden Eagle Protection Act, which prohibits the possession of eagles and their parts without a permit. Members of federally recognized Indian tribes can get permits in some circumstances; for instance, by applying to the National Eagle Repository, a macabre federal agency in Colorado that collects and distributes dead eagles and their parts to applicants in a first-come, first-served manner (I recount my visit to the Repository in a Green Bag piece that I read here). Wilgus argued that his arrest violated RFRA; the government responded that prohibiting non-Indians from possessing eagle feathers promoted compelling interests in both protecting eagles (bald eagles are no longer on the Endangered Species Act list, but they arguably are still pretty shaky, extinction-wise) and in protecting genuine Native American religion and culture. Wilgus's case went on for a dozen years; at one point he won in the district court, but ultimately in 2011 lost in the 10th Circuit, and the case did not end up going to the SCOTUS. If you're interested in the controversy over the use of eagles and their parts in religious rituals, I commend to you Professor Kati Kovacs' excellent and comprehensive article on the subject, which can be downloaded here.
I thought the case was totally fascinating, in that it sort of symbolized many of our ongoing national controversies--religious freedom, environmentalism, racial identity, Native American sovereignty, etc.--in something so ephemeral as a feather. I went out to Utah to talk to Mr. Wilgus and also his lawyer, visited the Eagle Repository, and wrote up a proposal for a book about his case. No interest. Again, that old chestnut, "this would make an interesting article, but it really isn't a book" got tossed around (I also tried to sell an article about the case, but that didn't work either). By this point, I had developed enough of an interest in American Indian law that I taught a course in it, and in the course of teaching the course, I decided to broaden the book proposal to be not just about the Wilgus case but about the controversy generally--I would talk also about US v. Dion, which is a Supreme Court case holding that Congress had abrogated a tribe's eagle hunting rights through the Bald Eagle Act, as well as some of the RFRA cases brought against the Act by Native Americans themselves. No interest. My fruitless fascination with bald eagles and their feathers was now 18 months old. It has become a bit of a joke around the law school, where at events, I'm now sometimes introduced as the guy who is obsessed with eagle feathers.
At this point, with the advice of an ex-editor friend of mine, I decided to reframe the issue once more, into a short book about the history of the bald eagle as a symbol in the United States. The thesis was going to be that the bald eagle is in fact a terrific national symbol, but not for the reasons it was originally chosen. It's a perfect symbol not because it represents freedom and grandeur but because it turns out, given all the controversies surrounding it over the past 100 years, to represent a clash of a variety of contested values, all of which are important to American identity but which are often also in conflict. This editor friend suggested that the cover could have a picture of an eagle with maybe a broken wing and kind of messed up feathers, looking kind of woozy. I was so excited about this new idea. I pitched it to my agent. He said, the problem with this book idea is too profound to be fixed by any minor tinkering. Really? I ran it by my editor at Beacon Press. Also unimpressed.
But, she did invite me to come by and drink some scotch. And that's where I'll pick up next time, in Failure Chronicles, Pt. 3, in which failure turns finally, finally, into . . . something that almost resembles non-failure.
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In case you haven't heard it, check out this clip from Stan Freberg Presents The United States of America. The bald eagle part begins at 3:45
Posted by: Steven Lubet | Jan 9, 2013 9:24:35 AM
Jay, for so many of us, failure is a part of every day life, so I'm thrilled you're blogging more about its centrality and texture. Keep the fire!
Posted by: Dan Markel | Jan 9, 2013 2:43:48 PM