The First Amendment and eagle feathers: an analysis of RFRA, BGEPA, and the regulation of Indian religious practices.

• Author: Fjerstad, Jessica L.
• Position: Religious Freedom Restoration Act of 1993, Bald and Golden Eagle Protection Act

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.

1. 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)

2. 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. (19) For that reason, this section briefly surveys the evolution of the First Amendment's free exercise doctrine, including how courts define religion and the history of religious exceptions in the United States. (20) This section introduces early tests for evaluating Free Exercise claims as well as the standards that emerge from Employment Division v. Smith (21) and RFRA. (22)

   1. THE FIRST AMENDMENT AND FREEDOM OF RELIGION

   The First Amendment to the United States' Constitution states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[]...." (23) These two clauses, commonly known as the Establishment Clause and the Free Exercise Clause, protect individual rights by limiting Congress's power and guaranteeing religious freedom. (24) They apply not only to the federal government but also to the states through the Due Process Clause of the Fourteenth Amendment. (25)

   The majority of constitutional challenges to BGEPA are grounded in free exercise principles. (26) The Free Exercise Clause prohibits the government from burdening an individual's religious beliefs or punishing an individual for his or her religious beliefs. (27) Therefore, before assessing a free exercise claim, courts must determine if a claimant's belief is, in fact, religious. (28)

   1. Defining Religion

      In 1961, the Supreme Court decided Torcaso v. Watkins (29) and struck down a provision in a state constitution that required any person serving as a public officer to declare "a belief in the existence of God." (30) Four years later, the Supreme Court again addressed the issue of defining religion in the case of United States v. Seeger. (31) In Seeger, the Universal Military Training and Service Act exempted individuals from draft laws if their belief in a Supreme Being conflicted with participation in war. (32) The Supreme Court explained that the test to determine one's belief in a Supreme Being "is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." (33)

      The concept of defining religion applies to constitutional challenges to BGEPA. (34) To prove BGEPA infringes upon free exercise rights and violates RFRA, a claimant must prove that a government action "substantially burden[ed]" his or her wish to possess eagle feathers. (35) In addition, a claimant must demonstrate that his or her desire to possess eagle feathers is a "sincere religious belief." (36) Generally, claimants challenging BGPEA's religious exception meet this burden. (37)

   2. The History of Religious Exceptions

      Most challenges to BGEPA are, in fact, challenges to the permit system and its implementation of the religious exception. (38) Therefore, understanding how requests for religious exceptions have been treated historically under the Free Exercise Clause is important. (39) The following section explores the history and evolution of religious exceptions in the United States. (40)

      1. Pre-Smith Standards

         Before 1963, the Supreme Court typically denied those seeking a religious exception to a generally applicable law. (41) In 1963, however, the Supreme Court granted a religious exception to a generally applicable law in Sherbert v. Verner. (42) In Sherbert, the claimant, a member of the Seventh-Day Adventist Church, refused to work on Saturdays because it was the Sabbath Day of her religion. (43) Unable to find work, she applied for but was subsequently denied unemployment benefits. (44) The Supreme Court held in Sherbert that the denial of unemployment benefits substantially burdened the claimant's free exercise of her religion, (45) that the government did not justify this burden with any "compelling state interest," and that, even if it had, the government must also show "no alternative forms of regulation" were available. (46) This method of analysis utilized by the Supreme Court in Sherbert is commonly known as the strict scrutiny standard of judicial review. (47)

         Nine years later, in Wisconsin v. Yoder, (48) the Supreme Court granted another religious exception to a state law required all children to attend public or private school until the age of sixteen. (49) The claimants refused to send their children to public or private school after the eighth grade because of their Amish religious principles. (50) The Supreme Court determined the state law had a severe and unavoidable effect on the claimants' religious beliefs--the claimants were forced to either violate the law or abandon certain aspects of their religion. (51) Furthermore, the Court found that the state's interest in educating students and preparing them for society did not justify the substantial burden on the claimants' religious principles. (52) Although the Supreme Court's analysis did not directly embrace the strict scrutiny standard utilized in Sherbert, the notion of weighing religious burdens against state interests certainly appeared throughout the Court's analysis. (53)

      2. Employment Division v. Smith

         The Supreme Court abandoned the standard established in Sherbert and Yoder when it decided the case of Employment Division v. Smith. (54) In Smith, two Indians were fired after using peyote for religious purposes. (55) The Indians were later denied unemployment benefits because their employment loss involved "misconduct." (56) When the claimants asserted that this government action violated their free exercise rights, the government countered that the burden was justified because peyote use violated state criminal law. (57) In a six-to-three decision written by Justice Scalia, (58) the Supreme Court reversed the Oregon Supreme Court, holding "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his [or her] religion prescribes...