The First Amendment to the U.S. Constitution guarantees all citizens the free exercise of religion and freedom of speech.

Given all that, the answer to the question of whether a student may wear a sacred eagle feather in her cap at graduation seems obvious. But it’s not.
The school year was barely under way in Oregon’s Reynolds School District and Mykillie Driver, Assiniboine/Lakota Sioux, had already begun thinking ahead nine months to June 11, 2012, when she would become the first in her family to graduate from high school. Mykillie wanted to mark the culmination of so many years of hard work by wearing an eagle feather in her cap for the graduation ceremony.

Her mom, Tonie Driver, is a 41-year-old single mother of four with three teenagers—a seventh grader, a sophomore and senior Mykillie—still at home in Troutdale, Oregon. Tonie has recently started taking classes at Mount Hood Community College, and she knows the value of the education she was not able to complete when she became a teen mother. Of her daughter’s upcoming graduation, Tonie practically shouts with excitement, “I’ve been waiting 18 years for this day!”

Tonie liked Mykillie’s idea about wearing the feather, and she consulted with her tribal elders at the Fort Peck Reservation in Montana, who told her she had to apply to the U.S. Fish & Wildlife Service (FWS) with the proper documentation for the feather. Once she had that, they said, her daughter should be able to wear an eagle feather however she wanted.

Tonie filed the papers with FWS on September 19, 2011. Then she checked with Reynolds High School to make sure that Mykillie wearing an eagle feather would not be a problem. A vice principal told her there was a policy of not allowing graduates to wear any adornments on their caps or gowns in order to prevent disruptions during the graduation ceremony. He said Mykillie could only wear the eagle feather in her hair, under her cap.

“The eagle feather is part of our heritage,” Mykillie says, explaining why wearing it in her cap was important. “We wear eagle feathers in our hair for everyday things like pow wows. Wearing it in the graduation cap shows high achievement.”

Tonie asked the school to give her a copy of the “no-adornment” policy in writing. She says the vice principal told her that this was the rule and always had been, but he was unable to produce it in writing. Tonie says his voice became firmer and louder as she continued to question him about where she could get a copy of this rule. “He embarrassed me in front of the staff and the students by the aggressive tone of voice he used,” she says.

Tonie then went back to her tribal elders, who agreed with her that Mykillie should be able to wear an eagle feather. Then she got to work. “I wrote to everyone, and I read everything I could find,” she says. Included on her mailing list were tribal members, friends and family, most of the administration of the Reynolds School District, the school board, the Oregon Department of Education, the mayors of Troutdale and Portland, the Native American Rights Fund (NARF), and the FWS—everyone she could think of who might support her and her daughter. “I wasn’t trying to break any rules,” says Tonie. “I just wanted to see the rule.”

Mykillie was in favor of wearing her eagle feather even if the school was against it, but Tonie was determined that her daughter’s graduation day would not be marred by an argument with school officials. “I didn’t want her to be running across the stage,” says Tonie, citing instances she had heard of in other states in which a Native American student’s display of an eagle feather had led to a confrontation with teachers or school administrators.

Philibert took the issue to the school superintendent and on September 30 Tonie received an e-mail from Henstrand: “You are correct in that there is no policy that would preclude your daughter from wearing an eagle feather. In fact, I am very familiar with the honor that Native students feel when they wear an eagle feather at graduation and federal laws related to this issue. We would be proud to have her wear her eagle feather.”Many people responded to Tonie’s call for help. Within days, she met with Connie Philibert in the office of Reynolds School District Superintendent Joyce Henstrand. Philibert assured Tonie that this was not going to be a problem, adding that she, as a member of the school board, could not remember ever having a conversation about a graduation dress code for Native students.

Henstrand explains why she granted permission so readily. “It’s my belief it is our responsibility to be respectful of each student’s spiritual and cultural beliefs. Not just to enable [cultural expression] but to respect and honor their heritage. Mykillie will become an example to other Native American students. Her wearing the eagle feather will say, ‘This is a goal you can reach and be a member of your tribe at the same time.’ ”

Andrea Watson, communications coordinator for Reynolds School District, says that Philibert will bring this issue up at the next school board meeting to ask if the board wants to set a model policy. This is “groundbreaking for the school district,” Watson says. “We’re really excited about this. It’s a great honor to participate in the discussion.”

Things worked out well for Mykillie and her mom, but had they been dealing with a less enlightened school system, or had Tonie been less dogged, or Mykillie less determined to express pride in her culture at her graduation, things could have been much more difficult. “A student wearing an eagle feather in her graduation cap is a First Amendment issue. But if she had had to take it to court she might not have won,” says Stephen Pevar, senior staff attorney with the American Civil Liberties Union (ACLU) Racial Justice Program. “The U.S. Supreme Court decided 15 years ago that First Amendment claims would be analyzed on a rational basis rather than an interest path, which means the government only needs some legitimate reason to say no. The school would have to have a legitimate reason to require that students not wear anything in their caps. While the student has a right to have an eagle feather, school officials also have certain rights, including forbidding adornments.”

Some school districts have given Native students permission to wear eagle feathers. “In 2009 the Sacramento City Unified School District granted a student the right to wear an eagle feather in her cap,” says Pevar. A year earlier the ACLU of North Carolina and NARF helped senior Corey Bird, an enrolled member of the Sisseton Wahpeton Tribe of South Dakota, get permission to wear an eagle feather in his cap at his high school graduation. NARF senior staff attorney Steven Moore said at the time, “Given the Native American reverence for eagles, and the high honor represented by a school graduation, we at NARF cannot imagine a more appropriate setting for the dignified wearing of an eagle feather. Most schools in America that have struggled with this issue in the past few decades have understood that permitting the wearing of eagle feathers at graduation is not only good policy but the right thing to do from a human perspective.”

In a June 5, 2008, letter to Bird’s school district, the ACLU and NARF said, “When asked about the rationale for prohibiting Corey to wear his feather, school officials have cited the need for the mandatory policy in order to prevent disruption and the display of gang colors.… There is no evidence that Corey’s eagle feathers are in any way related to gang symbols. Equating the wearing of eagle feathers with gang symbols is highly offensive to the Bird family, as well as to the Native American community generally.”

Moore did not say that Bird had a right to wear an eagle feather at his graduation under AIRFA.

“The American Indian Religious Freedom Act would apply [to Mykillie’s request], but it’s not really an act in the sense that it is a law,” Pevar says. “It’s a joint resolution of Congress, setting forth the feeling of Congress, but there is no enforcement provision. You cannot use it to compel officials to do anything. It’s a recommendation.”

In the landmark case Lyng v. Northwest Indian Cemetery Protective Association, Natives used AIRFA to argue that the Forest Service should not be allowed to build a road through federal land that included the Chimney Rock area of the Six Rivers National Forest in California where sites sacred to the Yurok, Karok and Tolowa tribes—known collectively as the High Country—are located. The U.S. Supreme Court ruled against the association, despite the religious importance of the area and the acknowledged harm the road would do to American Indians’ religious practice. The court said, in part, “Representative [Morris K.] Udall, [D-Arizona, sponsor of the 1978 AIRFA legislation] emphasized that the bill would not ‘confer special religious rights on Indians,’ would ‘not change any existing State or Federal law,’ and in fact ‘has no teeth in it.’ ”

Lyng nonetheless ended up changing federal policies. After 15 years of acrimony, wrote the Forest Service’s Thomas S. Keter in a 25-year history of cultural resources management on the Six Rivers National Forest in a paper presented at a meeting of the Society for California Archeology in 1998, “Although the final verdict was in favor of the Forest Service the final section of the [Gasquet-Orleans] Road was never constructed.” Marcia Yablon, in The Yale Law Journal, wrote: “Since Lyng, agencies like the Park Service, the Forest Service, and the Bureau of Land Management have all increasingly sought ways to protect many of the Indian sacred sites located on federal lands and to accommodate the religious and cultural practices associated with them.”

Moore notes that Mykillie’s rights in this matter may be protected under other laws. For example, he says, “The Oregon Constitution might well operate to protect Mykillie’s rights. And if Oregon has enacted a state law similar to [the Religious Freedom Restoration Act], which Congress enacted in 1993, such a law would require that a school district prove that its interests in prohibiting the wearing of an eagle feather at graduation are compelling. We at NARF think this would be highly unlikely. The eagle feather would not be disruptive of the graduation (as many other instances around the U.S. have proven), it is not a gang symbol, and many school district dress codes contain exceptions for sincerely held religious beliefs. Indeed, we have found that it is a practice to allow the wearing of crosses at public school graduations.”

Tonie says this experience has proven to her—and she hopes to others—that times have changed and attitudes and policies can be changed, even though much work remains to be done in reconciling the right of federal agencies to determine how federal land will be used and Natives’ right to use and protect their sacred sites.

Through respect, common sense and a willingness to listen on all sides, Tonie, Mykillie, the Reynolds School District and the state of Oregon in 10 days reached an outcome and forged a path to the future that have taken others years to accomplish.

Times are indeed changing, and in June, Mykillie will be the first Native high school graduate in the Reynolds School District to be able to display an eagle feather in her cap at graduation.