Eagle Feathers and Equality: Lessons on Religious Exceptions from the Native American Experience

Abstract

The legality and propriety of exempting religiously motivated conduct from otherwise applicable legal norms is the subject of ongoing scholarly, judicial, and legislative debate. The issue is particularly thorny when it arises in a legal system deeply committed to the concept of equality. The Eagle Protection Act, which exempts Native Americans religious practitioners who are members of federally recognized tribes from its general prohibition on the taking and use of bald and golden eagle feathers, provides an interesting context in which to examine that debate. Not only does the Act exempt religiously motivated conduct from the otherwise applicable norms, it prefers some religious users (Native Americans who are members of federally recognized tribes) over other religious users, and does so on the basis of ancestry and political affiliation. A statutory scheme which discriminates on the basis of such important matters as religious preference, ancestry, and political affiliation would seem to run counter to the concept of equality in a number of respects. Yet a closer examination of the unique history and status of Native American religions and Native American tribal sovereignty indicate that the preferential scheme in the statute is, in fact, compatible with the core concepts of equality.

Keywords: Bald Eagle Protection Act, Native Americans, eagle feathers, religious exemptions, discrimination, law and religion