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5th Cir. Allows Religious Exemption for Collecting Eagle Feathers

By Mark Wilson, Esq. | Last updated on

Remember the good old days before Hobby Lobby, when free exercise cases didn't impact reproductive freedom? Boy, do I yearn for a little harmless fun with Santeria in Florida, Hare Krishnas at the airport, or nativity scenes at Christmas.

Prepare to be taken back in time as the Fifth Circuit upholds a Free Exercise challenge to the Migratory Bird Treaty Act, which the petitioners in McAllen Grace Brethren Church v. Salazar said prevented them from collecting bald eagle feathers to be used in religious ceremonies.

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Protecting Eagles

Federal law prohibits the possession, sale, or transportation of migratory bird feathers -- including bald eagle feathers -- without a license. Ostensibly, the purpose of the law is to protect endangered birds by preventing the creation of a market for their feathers. One problem, though: Certain American Indian tribes' religious ceremonies require these types of bird feathers.

Thanks to the Religious Freedom Restoration Act (RFRA), the standard for federal Free Exercise cases comes from Sherbert v. Verner: A substantial burden on religion has to fill a compelling interest and must be the least-restrictive means of achieving that interest.

The Sherbert Test

Protecting eagles is certainly a compelling interest, so the only remaining question is whether this was the least-restrictive means of doing so. Even though the petitioner isn't a member of a federally recognized tribe, that in itself isn't dispositive: Membership in a tribe isn't important for the Free Exercise analysis, only that the person believes a Native American religion, as in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal.

Though the government argued that broadening the class of people who can possess eagle feathers would be a "slippery slope" to criminality, the exact same case was made -- and rejected -- by the Supreme Court in O Centro, where the respondent wanted to import hallucinogenic tea for a religious purpose. And the existence of exemptions for other purposes undermined the government's claim here that there would be more eagle hunting.

Conservation ... for Whom?

The case presents an interesting challenge, pitting Native American religious practices against conservationists. It's a part of American history that's often overlooked. Setting aside places like Yosemite and Yellowstone as national parks early in the 20th century was great for environmentalists like John Muir, who believed nature should be set apart from humans. But Muir is criticized for ignoring the fact that humans -- Native Americans -- were already living there. Setting aside land for national parks involved evicting Indians, on the premise that "conservation" and "environmentalism" meant looking at nature, not co-existing with it.

The Fifth Circuit's ruling recognizes that not everyone views "conservation" in the same way.

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