Court Cites 'Hobby Lobby' in Fight over Eagle Feathers

Court Cites 'Hobby Lobby' in Fight over Eagle Feathers Photo: Mary Lynn Stephenson via Wikimedia Commons Bald Eagle drying out his feathers in Kodiak, Alaska.

A federal appeals court on Wednesday invoked the U.S. Supreme Court’s June Hobby Lobby decision in a long-running legal battle over the possession of bald eagle feathers by members of an Indian tribe that is not federally recognized.

A panel of the U.S. Court of Appeals for the Fifth Circuit unanimously ruled that the U.S. Interior Department violated the religious rights of the Lipan Apache Tribe by not giving members the same privileges to obtain eagle feathers and carcasses for religious ceremonies that recognized tribes are allowed.

The Fish and Wildlife Service confiscated feathers from Lipan tribe members in 2006, and the case now titled McAllen Grace Brethren Church v. Salazar has been in the courts ever since.

The panel said that, under the Burwell v. Hobby Lobby Stores ruling, because the department made an exception from the federal Eagle Protection Act for recognized tribes, the government had to meet a “high burden” to prove that its enforcement of the law against the Lipan tribe furthered a compelling state interest and was the least restrictive means for doing so.

The Supreme Court in Hobby Lobby upheld the right of the retail chain under the Religious Freedom Restoration Act to refuse to include contraceptive coverage in its employee health-benefit package. One reason the high court said the government’s mandate requiring contraceptive coverage was flawed was that it had already made exceptions for other employers including religious nonprofit corporations.

“The very existence of a government-sanctioned exception to a regulatory scheme that is purported to be the least restrictive means can, in fact, demonstrate that other, less restrictive alternatives could exist,” Judge Catharina Haynes wrote for the panel, citing Hobby Lobby. She described the government’s rationale for clamping down on nonrecognized tribes were “mere speculation” and insufficient under the Hobby Lobby decision.

Other members of the Fifth Circuit panel were judges Jennifer Elrod and Edith Jones.

Contact Tony Mauro at tmauro@alm.com.

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