There Is Nothing Light About Feathers: Finding Form in the Jurisprudence of Native American Religious Exemptions

I. INTRODUCTION The First Amendment's protection of religious freedom is among the most cherished, most fundamental, and most debated facets of modern American constitutional law.1 The Amendment and the often fierce debate surrounding its reach are colored by deeply rooted American traditions of faith and spirituality. For example, the first permanent European settlers in America braved the Atlantic for the express purpose of finding religious freedom-truly leaving a legacy of faith.2 Their faith and their presence in North America, however, were preceded by the first Americans, the Indians,3 whose spirituality was not only a religion, but a way of life.4 And while the Native American legacy has the suggestive tincture of religion, the heart of Indian spirituality is not adherence to a strict doctrine, but is, rather, a profound cultural "reverence for nature and for life."5 Both legacies have enriched the American cultural landscape. However, the treatment of Native Americans and the protections afforded them have not historically been consistent with the general treatment of non-Indians.6 One of the principal questions that arises in this context is whether the tribal cultural identity and the Indian system of ancient beliefs and indigenous spiritual values can be "reconciled with the subsequently introduced system of individuals rights intended to protect the most cherished liberties supposedly belonging to all United States citizens."7 Nowhere is this more apparent than in the current debate surrounding special Indian religious exemptions to federal laws protecting bald and golden eagles.8 In adopting and amending the Bald and Golden Eagle Protection Act ("BGEPA"),9 Congress created an express Native American religious exemption to the general prohibition on the use and possession of eagles and eagle parts (i.e., feathers, talons, etc.).10 However, the exemption has been interpreted and administered such that it applies only to those practicing the Native American religion and who are not only Indian by blood but also members of federally recognized Tribes.11 This special treatment has led to a variety of constitutional challenges by Indians and non-Indians claiming violations of the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments, as well as violations of the Free Exercise and Establishment Clauses of the First Amendment.12 Under normal constitutional analysis, the special treatment of one individual over another because of race or religion would be patently unconstitutional unless the preference is narrowly tailored to achieve some compelling governmental interest.13 However, if the preference or infringement of free exercise is not the result of a facially discriminatory law, but rather is the incidental effect of one that is generally applicable, the Constitution requires only that the government have a rational basis for its action.14 When one further considers the Religious Freedom Restoration Act15 and intricacies of Federal Indian law, the discussion becomes even more complicated. Generally, if Congress were to create an express exemption or preference for a specific religion, the act would violate the Establishment Clause.16 Indian Tribes, however, are unique in that they are both political sovereigns and religious groups. Does this classification matter? Are Indians nothing more than a political class, subject to the plenary power of Congress? Are they not also a racial and religious minority, beneficiaries of the protections of the Bill of Rights and the Fourteenth Amendment? How do considerations of Congress's plenary power over17 and fiduciary obligations to Indian tribes18 factor in? These questions underlie the controversy over Indian religious exemptions to generally applicable laws. This Comment argues that there are legitimate reasons to treat Indians differently and that Congress and the courts should honor both treaties and trust responsibilities, so far as it is legal and practicable. …