On August 20, 2014, the U.S. Court of Appeals for the Fifth Circuit reviewed the lower court’s decision to grant summary judgment to the Department of the Interior in a case involving the Department’s enforcement of the Migratory Bird Treaty Act (MBTA) and the Golden Eagle Protection Act (GEPA). These laws, and the Department’s implementing rules, affect the religious practices of American Indian tribes, including “non-federally-recognized” tribes such as the plaintiffs here. The Court of Appeals concluded that the record simply did not support the lower court’s decision, and the case was remanded to the lower court for further proceedings. The case is McAllen Grace Brethren Church, et. al. v. Salazar.
The plaintiffs argued that the Department, by confiscating the feathers of Golden Eagles that are used in religious ceremonies, violated the First Amendment and their rights under the Religious Freedom Restoration Act (RFRA). Only members of federally-recognized tribes can, by rule, obtain the necessary permits to possess the feathers and other valuable materials associated with these protected species. The Court of Appeals held that the case must be remanded to the lower court to afford the government the opportunity to demonstrate that its implementation of these laws was the least restrictive means of furthering the goals of these laws consistent with the opinion of the court.
The Supreme Court’s recent decision in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2779 (2014), plays an important role in the Court of Appeal’s decision in McAllen. The Court of Appeals recognized that in Hobby Lobby, the Court recognized that “once the regulatory scheme has been shown to substantially burden a sincerely-held religious belief, the burden is on the government to establish that the regulation (1) advances a compelling government interest; and (2) is the least restrictive means of furthering that interest.” The Court of Appeal concluded that “on this record at this early, summary judgment stage, the government did not discharge that burden.”
Judge Jones filed a concurring opinion, in which she noted that “If the government sustains its position that the supply of eagle feathers is limited and that increasing access by non-recognized tribe members, or even by non-Indians, to eagle feathers for sacred purposes will endanger the eagles and the federally recognized tribes, the case becomes very close”.