Deep Dive Episode 54 – Department of Interior Considers Rulemaking on the Right to Use Eagle Feathers in Religious Exercise
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It is currently a federal crime, under the Bald and Golden Eagle Protection Act, for many Native Americans to possess eagle feathers for religious use. Congress authorized the Department of the Interior (the Department) to permit an exception for eagle feather use for “the religious purposes of Indian tribes” in 1962, yet more than 50 years later the Department’s regulations exclude millions of sincere Native American religious believers. And even Native Americans who are protected (because they are enrolled members of federally recognized tribes) are forced to rely on the “Morton Policy”—an informal memorandum that could be rescinded at any time. Although Native Americans have relied on the Morton Policy for more than 40 years, the Department has never promulgated it as a rule.
In 2014, the Fifth Circuit held that the Department had failed to justify its ban on religious feather possession as required by the Religious Freedom Restoration Act (RFRA). The Department is now considering a Petition for Rulemaking, which proposes to 1) broaden the Morton Policy to include all sincere religious believers who use protected feathers in their religious exercise—as both the Constitution and RFRA require; 2) officially promulgate this policy as a formal rule rather than rely on informal guidance, ending decades of legal limbo for those who worship with feathers; and, 3) empower Native American tribes to help combat the illegal commercialization of federally protected feathers. Join Joe Davis as he addresses the proposed rulemaking and its relationship to evolving First Amendment jurisprudence.