THE RELIGIOUS FREEDOM RESTORATION ACT AND INDIAN LAW: FROM INDIVIDUAL ADVOCACY TO COLLECTIVE ACTION.

• Author: Keim, Adele Auxier

1. INTRODUCTION

   In March 2006, federal agents raided a Native American powwow in Texas, confronted religious dancers, and confiscated 42 sacred eagle feathers. Pastor Robert Soto, a leader of the Lipan Apache Tribe of Texas and one of the dancers caught up in the raid, was threatened with a $10,000 fine and two years in prison if he did not surrender his feathers. He spent the next ten years seeking the return of his sacred feathers and protection for his religious practices. Pastor Soto's pleas for the feathers' return went nowhere until he sued under the Religious Freedom Restoration Act ("RFRA").

   RFRA is a 1993 statute enacted by supermajorities of both houses of Congress and signed into law by President Bill Clinton. The preamble of RFRA states that "governments should not substantially burden religious exercise without compelling justification." (1) RFRA "applies to all Federal law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after" RFRA was enacted. (2) Crucially, RFRA also includes a private right of action, which allows religious believers like Pastor Soto that have had their religious exercise burdened by the government to sue for injunctive relief, attorney's fees, and money damages. (3)

   RFRA has been intertwined with Native American religious liberty from its start. RFRA was a response to the crisis created by Employment Division v. Smith, a 1990 Supreme Court decision in which the Court cut back Free Exercise law while ruling against two Native American men who were fired from their jobs for using peyote in religious ceremonies. (4) Many Native American groups--including the Native American Church of North America, Americans for Indian Opportunity, the Association on American Indian Affairs, and the Native American Rights Fund--"wholeheartedly endorse[d]" RFRA. (5) Others, however, argued that RFRA did not go far enough to protect Native American religious liberty and asked Congress to also amend the American Indian Religious Freedom Act ("AIRFA"). (6)

   AIRFA was a Congressional resolution adopted in 1978 declaring that it was the "policy of the United States to protect" Native Americans' right to "exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians," including "use and possession of sacred objects." (7) AIRFA instructed the President to have federal agencies consult with Native Americans and determine if any federal policies needed to be changed. (8) But AIRFA famously had "no teeth," (9) a fact that the Supreme Court confirmed when it held in Lyng v. Northwest Indian Cemetery Protective Association that "[n]owhere in the [AIRFA] is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights." (10)

   Mindful of this history, a coalition of Native American groups that supported RFRA nevertheless argued that more needed to be done. According to this group, RFRA was "a reactive bill which relies primarily upon litigation as a check upon government power. But in federal Indian affairs, where numerous government policies so completely pervade Indian religious life, there is a need for proactive legislation to affirmatively change problematic federal procedures to accommodate and protect Native religions." (11)

   Twenty years later, it is clear that RFRA has been a crucial tool for individual Native Americans. One study of RFRA plaintiffs in the Tenth Circuit found that Native Americans, who make up just 1% of the population in that circuit, filed 7% of the RFRA cases. (12) Pastor Soto's legal victory against the Department of the Interior is an example of this. But the question raised by Native American organizations in the 1990s still hangs in the air: can RFRA help Native Americans change the federal policies that "so completely pervade" their religious life?

   Pastor Soto sought to do just that. After winning a preliminary victory in the Fifth Circuit, he negotiated a settlement that included the promise that the Department of the Interior would consider a petition for rulemaking to change the federal regulations regarding the religious use of eagle feathers. Pastor Soto submitted that petition in 2018, (13) and in 2022 the Department of the Interior announced that it was planning to issue a Notice of Proposed Rulemaking in response to Pastor Soto's petition. (14)

   In the four years that the Soto Petition has been pending, the Supreme Court has issued three opinions that strengthen Pastor Soto's request. Little Sisters of the Poor v. Pennsylvania established that RFRA authorizes --and, in some circumstances, requires--federal agencies to consider granting religious exemptions from general rules. (15) This is true even where, as here, the authorizing statute does not mention religious exemptions. (16) Fulton v. City of Philadelphia held that, when the government grants exemptions from its policies for secular reasons, it must also grant exceptions for religious ones. (17) Ramirez v. Collier emphasized that, when the government has allowed a religious practice in the past, it may not restrict that practice without clearly explaining why it must do so now. (18)

   Taken together, these legal developments have strengthened RFRA as a tool to "affirmatively change" federal policies that burden Native American religious practice. (19) Pastor Soto's path--combining victory in the courtroom with administrative advocacy--holds great promise for the future of Native American religious freedom.

2. HOW THE GOVERNMENT REGULATES THE USE OF EAGLE FEATHERS

   Before explaining how RFRA protects Pastor Soto and other Native Americans who worship with eagle feathers, it is important to understand the scope of the federal government's regulation of eagle feathers. (20)

   Eagle feather use is central to many Native Americans' religion. (21) Recognizing this, Congress specifically allowed the use of eagle feathers "for the religious purposes of Indian Tribes" when it passed the Bald and Golden Eagle Protection Act ("BGEPA") in 1962. (22) The Department of the Interior ("Department") passed regulations in 1963, updated in 1974 and 1999, that allow Native Americans to use eagle feathers. (23) But to this day, the regulations require every Native American to apply to the Department for a permit in order to lawfully possess even a single feather. (24)

   Perhaps because it was unworkable to issue permits to each of the millions of Native Americans who exercise their faith using federally protected bird feathers, in 1975 the Department announced that Native Americans could use eagle feathers freely, without a permit. (25) This 1975 policy, known as the "Morton Policy," was issued to "ease the minds of American Indians" who experienced "confusion and concern" as a result of the "Department's enforcement activities." (26) Under the Morton Policy, Native Americans could:

   * Acquire naturally molted or fallen feathers from the wild;

   * Give, loan, or exchange federally protected birds or bird parts with other members of federally protected tribes; and

   * Possess, use, wear, carry, and transport federally protected birds or bird parts. (27)

   As long as Native Americans were not killing, buying, or selling protected birds or bird parts, they were free to do all of these things "regardless of whether they [had] a U.S. Fish and Wildlife Service permit." (28) However, the regulations requiring a permit were never amended to reflect the policy.

   More than 30 years later, the cycle of enforcement followed by protests repeated itself: An increase in Department enforcement activity in 2009 led to outcry from Native Americans, and in 2012 the Department and the Department of Justice ("DOJ") issued a memorandum reaffirming the substance of the Morton Policy. (29) This time, however, the Department made a significant change: While the 1975 policy applied broadly to "American Indians," the 2012 memorandum only protected those Native Americans who are members of federally recognized tribes. (30) Overnight and by the stroke of a pen, the many Native Americans who are not members of a federally recognized tribe lost the right to practice their faith by praying with eagle feathers.

   This abrupt and unannounced change was only possible because the Morton Policy is a policy memorandum, not a Department regulation. The Morton Policy has never been published in the Code of Federal Regulations, nor has it been subject to notice and comment rulemaking. Yet to this day, it is the only federal document protecting the millions of Native Americans who lack permits to exercise their faith using eagle feathers. Until the Morton Policy is adopted as an official regulation, every change in administration will bring new uncertainty for Native Americans.

   The Morton Policy is just part of the web of statutes, regulations, and policies that regulate eagle use in the United States. Congress authorized the Department to allow eagle feather use "for the religious purposes of Indian Tribes" in 1962. (31) But more than 50 years later, Native Americans face uncertainty and even criminal liability for exercising their faith using eagle feathers, while power companies enjoy open-ended permits that allow them to kill an undetermined number of eagles for decades at a time.

   1. Statutes

      Two statutes are most relevant here: the Migratory Bird Treaty Act ("MBTA") and the BGEPA. The first statute, MBTA, was enacted in 1918 to implement a convention between the United States and Great Britain. (32) It prohibits the harm, sale, or possession of migratory birds or their parts without a valid permit. (33) MBTA currently covers over 1,000 bird species (34)--almost every native species in the United States. (35)

      In light of MBTA's broad language, courts have concluded that "Congress intended to make the unlawful killing of even one bird an offense." (36) Felony violations require knowledge, but misdemeanor violations of MBTA are strict-liability...