Fifth Circuit decision, McAllen v. Jewell (August 29, 2014)
Settlement Agreement, McAllen v. Jewell (June 13, 2016)
Under a 2012 enforcement memo known as the Morton Policy, the Department of Interior said that it won’t prosecute members of federally recognized tribes when they possess eagle feathers for cultural or religious purposes. However, this policy is insufficient. First, the Morton Policy is just a memo, or “guidance”—it isn’t law, and it can be revoked whenever the government changes its mind. To rely solely on this memo is to be at the mercy of whoever happens to be the administration in charge at any given time.
Second, the memo is constitutionally insufficient in scope. For example, even a federally-recognized tribe member will be subject to prosecution if she gives a feather to a member of a non-federally recognized tribe. This means that a grandmother who is a member of a federally recognized tribe could not give a feather to her non-member granddaughter for graduation. State-recognized tribal members like Pastor Soto also face criminal prosecution for using eagle feathers in accordance with their faith. That’s unacceptable.
While many Native American believers are forever banned from possessing eagle feathers, the Department allows others to possess and even kill eagles for scientific, agricultural, and commercial purposes under so-called “take” permits.
For example, wind energy companies may receive a 30-year permit from the Department that covers accidental eagle deaths caused by wind turbines. Under one of these permits, a San Francisco-area wind farm alone kills between 28 and 34 golden eagles every year. Other big businesses get a pass when eagles are accidentally killed by human causes like utility infrastructure (such as power lines), road construction, building construction, operation of airports, and resource recovery (such as forestry, mining, and oil and natural gas drilling and refining). These human causes are responsible for considerably more than 2,000 golden eagle deaths each year. Even though the Department protects the operation of big businesses when it comes to eagles, it has only provided unstable and insufficient protection for Native American believers who use eagle feathers in their religion.
Under the proposed rule, the commercialization of Native American culture will continue to be just as prohibited as it is now. It will still be illegal to kill an eagle or to buy or sell its parts. In fact, the proposed rule allows law enforcement to focus its efforts on stopping unlawful killing and commercialization, rather than on raiding the powwows of people like Pastor Soto, who would never kill an eagle or sell eagle parts.
Tribal sovereignty is not altered by the proposed rule. The existing unique relationship between federally recognized tribes and the government is maintained under this proposal. In fact, grounding the right to access to eagle feathers in constitutional protections for the free exercise of religion provides stronger and more secure protection for members of federally recognized tribes to practice their faith.
The Constitution protects all sincere religious exercise, so that’s what the proposal does too. But the proposal also recognizes that Native Americans have a unique relationship to feathers, so under the proposal, Native Americans are presumed to be sincere in their religious exercise, while non-Native Americans must demonstrate their sincerity to the government. Federal courts and agencies are already experienced at determining if a religious claimant is sincere in a wide variety of contexts. One of the main things that courts look at is commercialization, which is a key indicator of insincerity. The analysis of sincerity also includes consideration of the length of time the person has engaged in the practice, the consistency of the religious practice, and whether the person is part of an established group that also shares the practice.
Current wait times at the Repository are unacceptable. The heart of the proposed rule isn’t to tell the Department exactly how it should run the Repository, but instead it’s about lifting the criminal ban on the possession of feathers for religious use. The best way to reduce pressure at the Repository is to increase supply—for instance, by requiring or incentivizing power companies to collect and provide the Repository with the birds they kill rather than just leaving them to rot. The comment period for this proposed rule is an opportunity for those with expertise about the Repository to share with the Department of Interior ideas for improving the current system.