The First Amendment and Eagle Feathers: An Analysis of RFRA, BGEPA, and the Regulation of Indian Religious Practices

By Fjerstad, Jessica L. | South Dakota Law Review, Fall 2010 | Go to article overview

The First Amendment and Eagle Feathers: An Analysis of RFRA, BGEPA, and the Regulation of Indian Religious Practices


Fjerstad, Jessica L., South Dakota Law Review


In 1990, the United States Supreme Court decided Employment Division v. Smith. This decision significantly changed the legal analysis of First Amendment claims under the United States Constitution, including Free Exercise Clause claims made by those practicing minority religions. Thus, the Smith decision affected the debate surrounding the possession of eagle feathers for religious purposes. Unless an individual has a government-issued permit, federal law prohibits the possession of eagle feathers. Currently, the United States Circuit Courts of Appeals have split as to the constitutionality of the permit system and the system itself strains from excess demand for eagle feathers. This article examines the complex legal issues associated with having both Indian and non-Indian religious practitioners as well as the procedural issues surrounding the federal permit scheme for possessing eagle feathers.

I. INTRODUCTION

The First Amendment to the United States Constitution protects the free exercise of religion. (1) In defining the contours of the free exercise doctrine, the Supreme Court of the United States has reviewed claims made by religious minorities seeking protection for their religious exercise from laws that they allege to impede such exercise. (2) In the case of Indians, (3) there is ongoing conflict concerning the First Amendment and religious free exercise of religion, and the "legal battles involving Indian religions have involved four distinct areas: the use of peyote, protection of sacred sites, possession of eagle feathers, and the rights of Indian inmates." (4) This article focuses on the multifaceted procedural and legal issues surrounding the possession of eagle feathers for religious purposes. (5)

The Bald and Golden Eagle Protection Act (BGEPA) establishes criminal and civil penalties for the possession or taking of eagle feathers or eagle parts. (6) In 1962, however, Congress created a religious exception to BGEPA. (7) Indians who are enrolled members of federally recognized tribes are authorized to apply for a permit to possess or possibly take a bald or golden eagle or their parts. (8) Many individuals (both Indian and non-Indian) have challenged this religious exception to BGEPA claiming it infringes upon their free exercise rights. (9) The majority of claimants rely on the Religious Freedom Restoration Act (RFRA) for relief. (10) These cases often reach the federal courts of appeals, but the Supreme Court of the United States has not yet determined whether the religious exception to BGEPA and its permit system violates RFRA. (11) Without direction from the Supreme Court, and given the complexities of the government's obligations and relationship with Indian tribes, the issue of whether the BGEPA religious exception violates RFRA can seem convoluted. (12) Moreover, the BGEPA religious exception affects the First Amendment rights of both Indians and non-Indians. (13)

Part II of this article examines the relationship between religion and the United States Constitution, focusing on the First Amendment, the evolution of religious exceptions, and RFRA. (14) Part III reviews the federal statutory protection of bald and golden eagles and the applicable permit system and procedure. (15) Part IV summarizes challenges to the BGEPA permit system within the past decade. (16) Part V analyzes the procedural problems individuals encounter when applying for a permit under the BGEPA permit system and offers a possible remedy. (17) Part V also discusses the complex legal issues associated with challenges to the BGEPA permit system. (18)

II. RELIGION, THE CONSTITUTION, AND THE RELIGIOUS FREEDOM RESTORATION ACT

Challenges to the BGEPA permit system are based upon First Amendment principles, and although the courts' decisions are primarily reached solely on statutory grounds under RFRA, a review of First Amendment law is foundational to a discussion of the religious exception to BGEPA and the free exercise fights of Indians. …

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