Turtle Talk

The analysis of the Tenth Circuit in United States v. Wilgus is striking. Of note, the court adopts a sort of limiting principle that it hopes meets all of the competing interests, and relies heavily on Morton v. Mancari:

By adopting the federally-recognized tribes version of the interest, however, we remain on safe ground, based on the Supreme Court’s conclusion that federallyrecognized tribes are political—rather than religious or racial—in nature.  See Morton, 417 U.S. at 554.  As long as the federal government takes action toward federally-recognized tribes as political entities, supported by the specific provisions of the Constitution that grant Congress exceptional powers vis-à-vis such tribes, the government can avoid unconstitutionally favoring one religion over another.  See Cohen§ 14.03[2][c][iii] (noting that equal protection-based claims by non-Indians challenging religious exemptions for Indians have been rejected under the Morton reasoning).

On one hand, this formulation does, to some extent, meet the Supreme Court’s consideration of prior American Indian religious freedom cases. I count three (Bowen v. Roy, Lyng, and Employment Div. v. Smith). Only one of those cases (Lyng) involved federally-recognized tribes or members of federally-recognized Indians. But it is a lot to place on Mancari, which was a purely secular case, by the way.

Moreover, the real argument in favor of the exemption for Indian tribes and their members, according to the court, “spring[s] from history and from the text of the Constitution ….” This is what I usually refer to in my Indian law classes as a “soft trust,” a “hard trust” being a federal obligation expressly and specifically articulated in a statute, reg, or treaty. The “soft trust” largely is unenforceable against Congress, but may be used against the Executive branch to stave off negative government action and for other purposes. Ironically, the Supreme Court soon will decide U.S. v. Jicarilla Apache Nation, which at its heart appears to be an attempt by the Dept. of Justice to eliminate all forms of the “soft trust.”

Additionally, the court notes that federal officials asserted that the “black market” in eagle feathers is driven by the “powwow circuit”:

Further complicating the supply-and-demand issue is the black market for eagle feathers and parts.  Several FWS agents testified to the existence of a thriving black market in eagle feathers, driven in part by the “pow-wow circuit,” in which Native Americans compete in traditional performances.  (See, e.g., Apl’t App at 86-87.)  Participants compete for cash prizes, and the more decorated with eagle feathers a competitor’s costume, the more likely he is to win.  Other sources of demand in the black market include Native Americans who need the feathers for religious purposes but who are stymied by the delays in the permitting system, and non-Native American collectors of Native American art and artifacts.  No government witness, however, provided hard data on the volume of traffic in black-market eagle parts.

Interesting. FWS’s concern about powwow Indians sure does generate a conflict with the overall government position that the Eagle Act ban is required to protect American Indian religions. I suppose many would argue that powwows are not exactly religious ceremonies, but many others would disagree. The Obama Justice Dept. has initiated prosecutions against members of the “powwow circuit” (here, though I haven’t researched how these cases are going).

All in all, the Tenth Circuit’s formulation is going to face opponents from two directions: those that think Mancari’s “days are numbered,” to quote Judge Kozinski, and those who think the Eagle Act exemption is being too rigidly interpreted.