Under current federal law, it’s a crime for just about anyone to possess even a single feather of a protected bird species. 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 are used to perform smudging rituals, they are held in prayer during some traditional religious dances, and they are given 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.
Needless to say, a criminal ban on an item central to many Americans’ religious practices is a major problem under federal religious-freedom law—especially since, while Native Americans are prohibited from possessing eagle feathers, big businesses like power companies are permitted to kill hundreds of eagles every year. And indeed, there are few religious-freedom conflicts more dramatic than enforcement of the feather ban. In 2006, for example, an undercover federal agent infiltrated a powwow, detained Pastor Robert Soto of the Lipan Apache Tribe of Texas, and confiscated feathers Soto had peacefully used in worship for decades. Soto got his feathers back after years of litigation and a victory before the U.S. Court of Appeals for the Fifth Circuit. But the feather ban remains in place for other Native Americans.
Fortunately, change may be on the way. The Department of the Interior is currently considering a rulemaking petition, filed by Soto and the Becket Fund for Religious Liberty (my firm), that would fix the Department’s rules and allow all who sincerely use feathers in their religious exercise to possess them without fear of criminal prosecution. If adopted, the proposal outlined in the petition would make two critical changes to the current regulatory framework necessary to align it with the Constitution and the Religious Freedom Restoration Act and secure lasting protection for Native American religious practices.
First, the proposal would expand the class of people allowed to possess feathers without a permit. When Congress first passed the law protecting golden-eagle feathers in 1962, it authorized the Department to make exceptions for “the religious purposes of Indian tribes.” But the only exceptions the Department allows under this authority apply only to members of federally recognized tribes; other Native Americans—like the nearly 200,000 who are members of state-recognized tribes, many of whom have the same beliefs about feathers as federally recognized counterparts—are entirely unprotected. It’s as though, during Prohibition, the government had carved out an exception allowing Episcopalians to use sacramental wine but not Catholics or Jews. The proposal would fix the Department’s wildly underinclusive exception, providing that all who sincerely use feathers in their religious exercise may legally possess them.
Second, the proposal would give religious believers protection they can count on by having the Department adopt the religious exception through the proper channel: notice-and-comment rulemaking. The current provision relied on by most federally recognized tribe members is just a policy memo—it isn’t binding law, and the Department could rescind it tomorrow and start prosecuting all the people who rely on it today. As DOJ has itself recently recognized, governance-by-informal-policy-guidance is deeply inconsistent with rule-of-law principles: people are supposed to be able to plan their affairs around the law, not worry that the authorities could disregard their own policies at a whim. That’s especially so when a right as important as religious freedom is at stake.
The Department is accepting public comments on the proposed rulemaking until July 1. This is a valuable opportunity for supporters of religious freedom and the rule of law to encourage the current Administration to continue making good on its laudable commitments to advance both. Everything interested readers need to take advantage of this opportunity is at https://endthefeatherban.org/.