Religion
Related: About this forumPotential circuit split over the right to possess eagle feathers for religious purposes
By Will Baude
August 20 at 5:07 PM
Federal law generally forbids the possession of eagle feathers. Theres a regulatory exception for members of federally-recognized tribes, reflecting an accommodation of Native American religious practices. But what about those who are members of non-recognized tribes, but who have similar religious needs? Today, the Fifth Circuit decided that such claimants may well have a right, under the Religious Freedom Restoration Act, to possess eagle feathers.
To justify the prohibition under RFRA, the government had to show that it had a compelling government interest. The Fifth Circuit was willing to assume that there were compelling interests in both eagle preservation and in preserving the trust relationship with recognized tribes. But it concluded that the government had not shown that the law was narrowly tailored to serve either interest:
As to preservation, the court noted that eagle feathers do not have to come from dead eagles, and the government had not shown that broader permitting of feather possession would make it harder to fight poaching.
As to the trust relationship, the court concluded that on the state of this record, it appears that this argued harm is one of the governments own making: the alleged harm to members of federally recognizes tribes is caused by the system the government has created because the repository that it established and runs is inefficient. Instead, the claimants could be allowed to collect molted feathers from zoos or to run aviaries.
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/20/potential-circuit-split-over-the-right-to-possess-eagle-feathers-for-religious-purposes/
okasha
(11,573 posts)Its very narrow construction has resulted in making it illegal for even a Native American shaman to keep molted feathers, which in turn has made a good many holy men and women into "criminals."
I think it's reasonable to allow possession of molted feathers gathered in the wild, from zoos or rehab facilities. I really don't care for the idea of keeping these birds in captivity just to have access to festhers, though.
rug
(82,333 posts)okasha
(11,573 posts)to declare what does or does not constitute a legitimate tribe. A good deal of the contention has to do with registration under the Dawes Act. Some families and communities simply didn't know they needed to register to be.recognized. Others declined because "then they'll know where we are."
Long answer short, I'd include the unrecognized groups among those that have a right to keep the feathers or receive them in any way that doesn't involve killing or restraining the bird.
rug
(82,333 posts)issues of native sovereignty.
Which is why my own position with regard to the feds pretty much boils down to "Honor the treaties and get out of our way."