Fifth Circuit grants Native Americans religious freedom to obtain permits for eagle feathers

By Anna Aguillard | Sep 8, 2014

NEW ORLEANS – In a ruling that relies heavily on the Supreme Court’s recent decision in favor of Hobby Lobby’s religious freedom, the Fifth Circuit Court of Appeals has reversed and remanded a district court’s decision to prohibit certain Native Americans from acquiring eagle feathers for religious ceremonies.

A group of Native Americans and their churches filed suit against Ken Salazar, the Secretary of the U.S. Department of the Interior, arguing that the Migratory Bird Treaty Act and the Bald and Golden Eagle Protection Act violated their right to religious freedom.

The suit began after plaintiff pastor Robert Soto, a member of the Lipian Apache Tribe, was charged with possessing eagle feathers without possessing a permit.

According to the Migratory Bird Treaty Act and the Eagle Protection Act, the “taking, possession, sale, barter, purchase, transport, export, or import” of any bald or golden eagle is forbidden, except when permitted by the Secretary of the Interior.  Because many Native American tribes hold eagle feathers to be sacred, and use them in religious ceremonies, the government provides an exception for the religious purposes of Indian tribes, and allows the secretary to issue permits to individual Indians “who are authentic, bona fide practitioners of such religion.”

However, in 1999, the Secretary of the Department of the Interior began requiring Native Americans seeking permits to prove that they are members of federally recognized tribes. Soto’s Lipian Apache Tribe, despite existing for over 300 years, is not considered a “federally recognized” tribe, according to background in the case.

The plaintiffs filed suit against the department, claiming that confiscating Soto’s feathers based solely on the fact that his tribe was not federally recognized was in violation of the religious rights due to American citizens as provided in the Free Exercise Clause of the First Amendment and the Religious Freedom Restoration Act.

The defendant filed a motion for summary judgment, which the district court granted. The plaintiffs then appealed.

The appeals court first established the plaintiff’s standing, which was attained because of the personal injury that Soto sustained when his eagle feathers were confiscated. Because one claimant had standing, the multiple other plaintiffs’ suits were maintained.

After establishing Soto’s standing, the court then addressed the application of the Religious Freedom Restoration Act (RFRA) to the situation at hand. The act prohibits the government from burdening a person’s exercise of religion, even if the “burden” is caused by a law that the government itself passes. The government is only allowed to burden a person if it has and can prove its own “compelling” interest, or that the burden imposed is the least restrictive means possible of maintaining its interest.

Both parties in the case agreed Soto practiced his religion with “sincerity,” and that the Eagle Protection Act did substantially burden his religious beliefs. However, the government argued that Soto’s burden met the requirements of the RFRA and that it was the least-restrictive means of furthering the government’s compelling interest. The appeals court did not agree.

Citing Sherbert v. Verner, the appeals court defined compelling interests as “only the gravest abuses” that “[endanger] paramount interests.” Citing the recent Hobby Lobby decision, the court acknowledged that this is a “heavy burden” to prove.

Because the department already allowed for other organizations, such as federally recognized tribes, scientific purposes, and “other interests in any particular locality” exemption from the law, the government had an even higher burden to show compelling interest.

According to the appeals court, the government did not prove the “high burden” of compelling interest. Although the department successfully argued that “protecting eagles” qualified as compelling interest, it failed to prove that its goal of protecting eagles could only be qualified by limiting permit-granting to federally recognized tribes.

The government’s arguments that allowing for “broader possession” of eagle parts would expand the black market and tax the eagle-feather repository were undermined by the appellate court, which pointed out glaring flaws in both. The court ruled that the defendants failed to address alternative hypotheses, such as “the black market exists precisely because sincere adherents to the American Indian religions cannot otherwise obtain eagle feathers”; and that the “taxation” felt by the repository was actually caused by the government’s own “inefficient system.”

The court then held that the government failed to prove that prohibiting tribes that are not federally recognized from obtaining eagle feathers was the least restrictive means of ensuring its interests. The plaintiffs provided “numerous” alternatives to the practice, which the court ruled were not addressed by the department.

The court then called for the department to provide “much better developed records” in its argument, and ruled that it did not meet its burden in demonstrating that prohibiting non-federally recognized tribes from obtaining permits is truly the least restrictive means of protecting bald eagles.

The district court’s decision was reversed and remanded by Judge Edith H. Jones, Judge Jennifer Elrod and Judge Catharina Haynes.

Case no. 13-40326.

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