Deep Dive Episode 54 – Department of Interior Considers Rulemaking on the Right to Use Eagle Feathers in Religious Exercise

Operator:  Welcome to Free Lunch, the podcast of The Federalist Society’s Regulatory Transparency Project. All expressions of opinion are those of the speakers. On May 20th, RTP co-sponsored a call with The Federalist Society Religious Liberties Practice Group, which provided a litigation update regarding a federal lawsuit to return confiscated sacred eagle feathers to a state-recognized Indian tribe. This case resulted in a settlement in which the Department of Interior agreed to propose new rulemaking to protect all Native Americans from criminal penalties from possessing sacred eagle feathers.

Joe Davis, counsel for the Becket Fund for Religious Liberty, joined us to discuss the case and possible regulatory changes. Please send your feedback to RTP at regproject.org.

Wesley Hodges:  My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at The Federalist Society.

Today we are very fortunate to have with us, Mr. Joe Davis, who’s counsel for the Becket Fund for Religious Liberty. After our speaker gives his remarks today, we will move to an audience Q &A, so please keep in mind what questions you have for this subject or for our speaker. Thank you very much for sharing with us today, Joe. The floor is yours.

Joe Davis:  Thanks very much Wesley, and welcome to today’s call everyone. As Wesley said, I’m Joe Davis, and I’m an attorney at the Becket Fund for Religious Liberty where we work to protect the free expression of all religious faith. So before we open it up for questions toward the end of the call, I would like to try to cover four different things. First, the big picture of what this rulemaking petition we filed is about. Second, the litigation that gave rise to the petition. Third, what exactly the petition is asking for. And fourth, where the petition is now and what any listeners who are so inclined can do to help get it passed.

So first, what is the rulemaking petition about? My firm, Becket, along with Pastor Robert Soto of the Lipan Apache Tribe of Texas, we found the rulemaking petition seeking to change the Department of the Interiors regulations regarding the religious use of protected bird feathers. These regulations in their current form present one of the most unjust religious freedom problems on the landscape today. Under current federal law, it’s a crime for just about anyone to possess even a single feather of a protected bird species. Now, this doesn’t pose much of a problem for most Americans in their everyday lives. But for many Native Americans, this criminal ban on feather possession is a major obstacle to the exercise of their religion.

Eagle feathers are essential to many important Native American religious practices. They’re used to perform smudging rituals. Native Americans pray with them during some traditional religious dances. Some Native Americans give them as gifts to mark significant religious occasions. So for many Native Americans, the criminal ban on possessing feathers is the equivalent of a ban on bibles or rosaries for Christians.

Recognizing this, Congress wrote into the relevant statute back in 1962 that the Department of the Interior could make exceptions to the ban for the religious purposes of Indian tribes. But here more than 50 years after that statute was passed, the Department still hasn’t gotten around to actually protecting the ability of all Native Americans to use feathers in their religion. The Department has passed regulations allowing people to ask for a permit to possess feathers for religious use, but these regulations apply only to members of federally recognized tribes and not the many other Native Americans who aren’t members of federally recognized tribes, but who none the less sincerely use eagle feathers for their religious exercise.

Second, perhaps recognizing that it’s not feasible to issue permits to each of the millions of Native Americans who use feathers in their religious exercise, the Department has announced in a policy memo, which is referred to as the Morton Policy, that members of federally recognized tribes don’t have to have a permit to possess feathers and other protected bird parts. But there are several problems with this Morton Policy. First, it’s just a policy memo. It isn’t binding law, and the Department can rescind it tomorrow and start prosecuting all the people who are relying on it today.

Second, like the permit regulations, it applies only to members of federally recognized tribes. So the many other Native Americans who aren’t members of federally recognized tribes remain prohibited from ever possessing even a single feather.

Third, it doesn’t even cover all common religious use. So, the protection of the Morton Policy switches off if a member of a federally recognized tribe gives a feather to someone who is not a member of a federally recognized tribe. This means, for example, if a grandmother who’s a member of a federally recognized tribe, gives a feather to her grandson for graduation, and the grandson isn’t a member of a federally recognized tribe, then both the grandmother and the grandson become subject to prosecution again under the general criminal ban and you know, that’s a pretty common religious practice.

So our rulemaking petition is aimed at fixing these problems with the current policy. We’re asking the Department to expand the policy to cover all who sincerely use feathers as part of their religion. And that will fix the religious freedom problem. And we’re asking it to formally promulgate the policy as a rule, which will fix the rule-of-law problem that comes from having millions of people staking their religious freedom on an informal policy that can be rescinded on a whim. So that’s an overview of the rulemaking petition.

Now, I want to back up a minute and talk about the litigation that gave rise to it. The events that gave rise to the petition started back in 2006. Our co-petitioner, Robert Soto, is a nationally recognized feather dancer and religious leader of his tribe, the Lipan Apache Tribe of Texas. The Lipan Apaches date their history back more 300 years, and they’re legally recognized by the State of Texas, by the foreign governments of Spain and Mexico, but they aren’t recognized by the United States, so their members aren’t allowed to access feathers under the Department’s regulations. One morning in 2006, Soto was leading a worship ceremony using eagle feathers. As it turns out, the ceremony had been infiltrated by an undercover agent from the Department of the Interior’s Fish and Wildlife Service, as part of a crackdown on feather possession called Operation Powwow. The agents raided the ceremony, confiscating Soto’s feathers and threatening him with criminal prosecution. Soto’s feathers had been given to him as gifts and he had had some of them for over 40 years.

So Soto ultimately sued to get his feathers back. His claim was under a statute that the people in this call I’m sure will be familiar with, the Religious Freedom Restoration Act. The basic upshot of RFRA is that the government has to have a really good reason for interfering with people’s religious exercise. So to use the language of the statute, if a government action substantially burdens someone’s religious exercise, the government has to show that it has a compelling interest in taking the action and that there are no less restrictive means by which it can accomplish its interests. Soto lost on summary judgment at the district court.

At the Fifth Circuit, however, the court reversed and ruled in his favor. The Fifth Circuit said it was obvious that a criminal ban on possessing an essential religious item is a substantial burden, and the court said that the government had failed to show that it had a compelling reason for limiting its regulations and policies allowing for feather use only to federally recognized tribes.

The government had offered up several allegedly compelling interests that the Fifth Circuit rejected. And it’s worth going into these in a bit of detail because these are at the heart of whether the Department will decide to act on the current petition that’s in front of them. First, the government said that it had to prevent non-federally recognized tribe members from possessing feathers in order to protect eagles. But this argument falls apart on closer inspection. Pastor Soto and his tribe didn’t want to harm the eagles, and no one has to harm an eagle to get feathers. Often, they are just picked up off the ground in the wild or received as gifts from someone else who likewise got them in a peaceful way. In light of this, the government was forced to say that it needs a prohibition on feather possession, because otherwise there would be increased poaching in order to satisfy what it called a black-market demand for eagle feathers. But as the Fifth Circuit pointed out, this is the sort of mere speculation that isn’t good enough for RFRAs demanding compelling interest test. In fact, it’s equally possible that any black market that exists exists precisely because sincere religious believers of Native American religions can’t otherwise get feathers.

And this argument about protecting eagles also runs into another big problem. One of the key factors that cuts against the burden on religious exercise satisfying RFRA is if the government allows other exceptions from the law. So the idea here is if the government doesn’t pursue its compelling interests against all of the people that it would make sense to pursue it against, then there’s probably not a compelling reason why it couldn’t make an exception for the religious people too. And here it turns out that the government allows lots of exceptions to the general ban on taking and possessing the parts of protected bird species.

So just to give a few examples, museums, scientists, and zoos can get a permit to possess eagles and eagle parts for educational purposes. Falconers are allowed to possess eagles and train them as hunting birds just for sport. And most strikingly, big businesses like power companies are allowed to get permits allowing them to kill eagles in the process of carrying on their business. Some power companies kill dozens of eagles every year because the eagles get electrocuted by power lines or killed in collisions with wind turbines. So, the government simply can’t plausibly say that it has a compelling interest in denying people who would never harm an eagle from simply possessing feathers for use in religious worship when it allows all of these groups not just to possess but sometimes to harm the eagles for other purposes, including commercial purposes. This point also cuts against the least restrictive means part of the RFRA test. Even if the government’s compelling interests in protecting eagles were actually advanced by stopping sincere believers from using feathers, a less restrictive means might be for the government to simply cut back on the number of killings it allows for non-religious reasons.

Second, the government said it had a compelling interest in preventing non-federally recognized tribe members from possessing feathers because it had to respect the unique relationship between the federal government and federally recognized tribes. But religious freedom isn’t a zero-sum equation. Just as a logical matter, it doesn’t help federally recognized tribes at all to punish Native Americans who aren’t members of federally recognized tribes merely for using feathers they already possess or that they just pick up from the wild. Instead allowing those believers to access feathers simply increases religious freedom for everybody.

This argument is really like saying that during prohibition, the government could pick one Christian denomination and say that that denomination had a protected religious liberty interest and keeping all the others from using wine for communion. It just doesn’t follow. In fact, the Supreme Court rejected a very similar argument in a RFRA case called Gonzales vs O Centro. In that case, you had a small religious group with origins in the Brazilian rainforest, and they sought a religious exemption allowing them to be able to use hoasca, which is a tea used by this group in its primary religious sacrament, but it contains a hallucinogen that’s listed in the Controlled Substances Act.

The group pointed at the fact that the government has long recognized an exemption for Native Americans to use sacramental peyote, and that it was just seeking a similar exemption. The government, meanwhile, responded to this argument about pointing to the same unique relationship with the federally recognized tribes that had pointed to in Soto’s case. But the Supreme Court rejected the argument. It found that that unique relationship was not furthered by denying all other groups the right to practice their religions. And precisely the same reasoning applies here, and that’s what the Fifth Circuit held in Soto’s case.

And third, the government said it would put too much of a strain on the National Eagle Repository to allow members of non-federally recognized tribes to access feathers. Now to back up for a moment, the repository is one of the ways that federally recognized tribe members can get feathers under the current policy, the Morton Policy. It’s a physical place in Colorado where the government collects and freezes dead eagles and eagle parts and distributes them to members of federally recognized tribes who ask for them. The problem is that the repository is really inefficient and poorly run. Current wait times for an eagle from the repository, for example, are around two years. So this argument was effectively an argument from bureaucratic incompetence. The government was saying that because it’s already so bad at running the repository, it shouldn’t have to respect the religious freedom of non-federally recognized Native Americans by allowing them to get feathers.

The Fifth Circuit correctly rejected this argument, too, and explained that the Department cannot infringe on religious believers’ rights by creating and maintaining an inefficient system and then blaming those inefficiencies for its inability to accommodate the believers. So after rejecting the government’s showing on each of its allegedly compelling interests under RFRA, the Fifth Circuit ultimately held that the government had to go back to the district court and try again to prove why it was really necessary to stop people like Soto from possessing feathers.

Rather than trying to do that, the Department agreed to settle the case. Under the settlement, Soto got his feathers back, and he and the other members of his tribe, more than 400 people, were allowed to possess feathers. And as part of the settlement, the Department also agreed to consider a rulemaking petition from Soto as to whether to change its current rules. So that brings us back around where we started to the petition which we filed last summer and which was just published in the Federal Register on April 30th.

Now, I think we’ve already touched on the petition’s basic proposal, but just to reiterate, the petition proposes that the Department takes its current informal Morton Policy, expand it to cover all who sincerely use feathers in their religious exercise, and then make it into a formal rule issued after notice and comment. This will fix the religious freedom problem by no longer excluding Native Americans who happen not to be members of federally recognized tribes, and it will fix the rule-of-law problem by making the informal policy into a formal rule that the public can really rely on. This is very much consistent with some of the positions already taken by this administration, which has quite laudably vowed to protect religious freedom for all, and it’s in the constitutionally questionable practice of governing by way of informal policy documents and dear colleague letters and that kind of thing.

Now, the basic argument for why the Department should enact our proposal is that the current policy is illegal, and the rule change is required to bring the Department into line with RFRA, the APA, and the Constitution. We’ve already touched on the RFRA argument in covering the Fifth Circuit’s decision in Pastor Soto’s case, so I’ll just briefly run through the other reasons why the current policy is inconsistent with federal law.

First, in addition to violating RFRA, the current policy also violates the religion clauses of the First Amendment.  For one, there’s, of course, lots of dispute about how to properly interpret one of those clauses, the Establishment Clause. But this case is actually pretty straightforward under just about any of the competing theories Establishment Clause that are out there. For one thing, although the Supreme Court’s Establishment Clause case law is a bit of a mess, the Court has actually been very consistent in saying that the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another. That language comes from a case called Larson v. Valente, but for our purposes probably the best example of a case applying this principle is, where a city attempted to prohibit one type of religious animal killing sacrificed by practitioners of the Santeria faith, while allowing another type of religious animal killing, kosher Lukumi slaughter. The Supreme Court, on that case applying the principle that the government can’t officially prefer any one religious denomination, said that this would be an Establishment Clause violation.

This type of a visual preference is exactly what we have here. The government has selectively imposed its ban on feather possession on some denominations, those affiliated with non-federally recognized tribes, while not imposing it on others, those affiliated with federally recognized tribes. More recently, the Court’s Establishment Clause cases have started a shift toward a historical analysis, where the Court has looked back to the Founding to see what sorts of government actions were associated with the religious establishment that the Founders wanted to get away from when they ratified the Establishment Clause in the first place. Right now, in fact, the Supreme Court has a case before it about a war memorial cross on public land, and in that case it could decide to definitively break with some of its earlier cases in the display area and adopt an historical approach.

So it’s important to note that this case is the easy end of the historical approach too. At the time of the Founding, one element of a historical establishment is that the government would license the established church to engage in religious practices while barring other religions from doing so. To give an example, at the time of the Founding, many state establishments limited preaching to clergy in the established church and would prosecute the sinners for preaching without a license. That’s effectively what we’ve got here with feathers. Again, the government allows some religious groups, those associated with federally recognized tribes, to practice their religion using feathers, but it prohibits all others from engaging in precisely the same religious practice. That’s a clear Establishment Clause violation.

The petition also explains how the current policy violates the Free Exercise Clause. Before 1990, the free exercise analysis was effectively the same as the RFRA analysis we talked about earlier. Any substantial burden on religious exercise was subject to strict scrutiny. In 1990, though—I’m sure most listeners will know—in a case called Employment Division v. Smith, the Court changed the rule. It held that laws that are neutral toward religion and generally applicable no longer have to pass strict scrutiny to apply to religious exercise. That still means that a law has to actually be generally applicable to avoid strict scrutiny. The current eagle feather rules are anything but generally applicable.

Again, as discussed earlier with respect to the RFRA claim, the current rules allow all sorts of exemptions from the general prohibition of possessing eagle parts and feathers. Museums, scientists, and zoos can get eagles and eagle parts for educational purposes. Falconers can capture eagles and hunt with them. Big businesses like power companies can get permits to kill eagles in the conduct to their business. There’s a very influential free exercise opinion that was written by then-Judge Alito when he was on the Third Circuit, and he explained that if the government makes even a single exception from some general prohibition for secular conduct without exempting similar religious conduct, the law isn’t generally applicable, and thus has to survive strict scrutiny under the Free Exercise Clause. Here the eagle feather rules are riddled with exceptions for secular conduct and these exceptions endanger eagles much more than allowing sincere believers to possess feathers would. This sort of disfavoring of religious conduct is exactly what the Free Exercise Clause prohibits.

So that’s RFRA and the First Amendment. But as the petition explains, the current rules present not just these sort of substantive religious freedoms concerns but also procedural rule-of-law concerns that arise under the Administrative Procedure Act. Under the APA, binding agency regulations are supposed to go through notice-and-comment rulemaking and not simply be issued in an informal letter like the Department has done with the Morton Policy. This general requirement of notice-and-comment rulemaking serves really critical goals. It makes for better agency decision making by ensuring that agencies have more complete information, that they hear from members of the public that will be affected by their actions. More importantly, it prevents agencies from arbitrarily disregarding their own rules. And so, it allows people whose rights and duties are affected by those rules to plan their affairs around them with the assurance that the agency can’t just change them on a whim.

The Morton Policy has never been through notice-and-comment rulemaking, even though it says on its face that its whole purpose is to relieve uncertainty and concern regarding enforcement of federal bird protection laws. So the government can simply change its mind about the policy tomorrow and start prosecuting all the federally recognized tribe members who are currently relying on it to possess feathers without a permit. In fact, this concern isn’t just hypothetical. The Morton Policy was first issued in 1975, and at that time, it applied to all Native Americans, not just federally recognized tribes. Nonetheless, in 2009 there was a rash of enforcement activity in which the Department disregarded the 1975 policy and arrested and harassed Native Americans for practicing their faith. This period of harsh enforcement ended with the reaffirmation of the Morton Policy in the form we have it today where it’s limited to federally recognized tribes but there’s little to stop something similar from happening again in the future, even to the federally recognized tribe members that currently fall within the policies terms.

So that’s an overview of the legal arguments the petition makes for why the Department needs to change its rules. In addition to bringing the Department policies into alignment with civil rights law and the Constitution, our proposal would actually have another really important effect. It would help protect eagles. It costs the Department valuable time and resources to conduct undercover raids and seize feathers from people using them for religious exercise. Lifting the criminal ban on religious feather possession for all Native Americans then will allow the Department to focus its limited resources on preventing the activities that actually endanger protected birds, like unlawful killings and the commercialization of bird parts and feathers. It seems pretty clear that this would be a much better use of the Department’s time than raiding the ceremonies of peaceful worshippers, like Pastor Soto.

Last, I wanted to touch on one important limitation on the proposal. Our proposal would extend only to people whose beliefs about feathers are sincere. The government of course can’t decide whether a person’s religious beliefs are true or false, but it can determine whether a particular claimant genuinely holds the belief that he claims he holds. And indeed sincerity, this element of sincerity is a critical part of any religious freedom claim because without it people could abuse religious freedom to get regulatory exemptions that they want for other reasons.

Fortunately, the government has lots of experience policing the sincerity requirement. Courts enforce the requirement every time they decide a RFRA or free exercise case. For example, Justice Gorsuch had a very well-known opinion while he was on the Tenth Circuit in which the court denied on sincerity grounds an exemption from drug loss to plaintiffs who said that they were part of a church in which they said marijuana was their sacrament. And agencies, too, are used to enforcing the sincerity requirement. The military, for example, grants exemptions to conscientious objectors, but only after first confirming that their beliefs are sincere and that they’re not just trying to get out of serving.

Our eagle feather proposal would have the Department of the Interior apply this same sincerity test to confirm that the only people protected by the religious exemption are those who sincerely use feathers to practice their faith. That said, in light of the long-standing and unique role of feathers in Native American faiths, our proposal would include a presumption of sincerity for people who are members of federally or state-recognized tribes, or who are members of a Native American church or other Native American religious association.

With that, I’ll transition over into what people on this call who are interested can do to help this proposal get enacted. The Department, like I said, is currently accepting comments on the proposal, and the comment period will run until July 1st. If you’re interested in religious freedom, if you’re interested in ensuring that the Executive Branch governs through clear, fair rules rather than informal policies, this is a great opportunity to encourage a federal agency to make some desperately needed strides in both of those areas. There’s a website set up called endthefeatherban.org where you can find all the information you would need to submit a comment along with lots of other background information about Pastor Soto’s case and the petition. I think that in addition to hearing from the Native American community, the Department would be very interested to hear from Federalist Society members whose interests are a more general one in promoting the rule of law and protecting religious freedom. Comments submitted for the proposal certainly don’t have to be long. Again, the website is endthefeatherban.org, and with that, I think we can turn it over to questions to the extent that folks have some.

Wesley Hodges:  Very good. Thank you so much, Joe. While we wait for any audience questions, I do have one question for you Joe. What do you find are the primary arguments on the other side of the issue?

Joe Davis:  Sure, yeah, that’s a good question. I think we ran through a couple of them when we talked about the Fifth Circuit’s decision in the case that triggered the petition. But you know, this issue had been litigated and several other cases, too, before the Fifth Circuit case came down, and the only argument the Department has ever really gotten any success with is its argument about the National Eagle Repository where it says it would tax the repository to allow people who aren’t currently able to request feathers from it to request feathers from it.

I gave a similar answer to that during the discussion earlier, but really, it’s changing the subject because there are lots of ways that people can get eagle feathers that don’t have anything to do with the repository at all. Many feathers are just picked up. They’re naturally molted, and they’re found in the wild. And they are picked up and used in religious exercise or they are gifted from other people who already had them. So the repository is no answer to why Native Americans who aren’t members of federally recognized tribes should be forever banned from possessing a feather by any means.

Our proposal actually agrees that the repository is very poorly run at the moment, and we think this comment period is a great opportunity for people to weigh in about how the Department can run the repository better and increase the supply of feathers. I think by no means can an answer to the poorly run repository be that Native Americans who aren’t members of federally recognized tribes should continue having their religious exercise suppressed.

Wesley Hodges:  Very good. Thank you, Joe. Well seeing no immediate questions, Joe, is there any part of this case that you want to go into more detail before we wrap up today?

Joe Davis:  Wesley, I really appreciate again the time to present to this audience. I hope to be able to do so again soon.

Wesley Hodges:  Wonderful. Well Joe, even if we don’t have questions from the audience, there are quite a few people here listening to you. And quite a few people I’m sure are very grateful for your remarks. So on behalf of The Federalist Society, I would like to thank you for the benefit of your very valuable time and expertise today.

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