Potential circuit split over the right to possess eagle feathers for religious purposes

August 20

Federal law generally forbids the possession of eagle feathers. There’s a regulatory exception for members of federally-recognized tribes, reflecting an accommodation of Native American religious practices. But what about those who are members of non-recognized tribes, but who have similar religious needs? Today, the Fifth Circuit decided that such claimants may well have a right, under the Religious Freedom Restoration Act, to possess eagle feathers.

To justify the prohibition under RFRA, the government had to show that it had a compelling government interest. The Fifth Circuit was willing to assume that there were compelling interests in both eagle preservation and in preserving the trust relationship with recognized tribes. But it concluded that the government had not shown that the law was narrowly tailored to serve either interest:

As to preservation, the court noted that eagle feathers do not have to come from dead eagles, and the government had not shown that broader permitting of feather possession would make it harder to fight poaching.

As to the trust relationship, the court concluded that “on the state of this record, it appears that this argued harm is one of the government’s own making: the alleged harm to members of federally recognizes tribes is caused by the system the government has created because the repository that it established and runs is inefficient.” Instead, the claimants could be allowed to “collect[] molted feathers from zoos” or “to run aviaries.”

The decision potentially creates a split with other circuits that had rejected RFRA claims by similar claimants. I say “potentially” because the Fifth Circuit remanded the case rather than ruling outright and the government has a chance to build a stronger record on remand. On page 21 of its opinion, the Fifth Circuit therefore seems to distinguish the cases from other circuits on the grounds that they “involved in most instances much better-developed records.”

I’m not sure whether the questions are ones of “legislative fact” or “adjudicative fact” so I’m not sure how much the case-specific record is really supposed to matter. But in any event, as a practical matter the important split will exist if the government loses after remand and appeal. Worth watching for those of us who are interested in the interaction between eagle protection and religious liberty.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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