Kathryn Kovacs has posted her draft paper, “Alleviating the Tension between Species Preservation and Religious Freedom,” on SSRN.

Here is the abstract:

The Bald and Golden Eagle Protection Act prohibits the taking or possession of eagles and eagle parts. Recognizing the centrality of eagles in many Native American religions, Congress carved out an exception to that prohibition for “the religious purposes of Indian tribes.” The problems with the administration of that exception are reaching crisis proportions. At the Fish and Wildlife Service’s National Eagle Repository, which collects dead eagles from around the country and distributes them to members of federally recognized tribes, more than 6,000 tribal members are on a waiting list for eagles. That list grows each year. The wait for a whole golden eagle is now more than four years. A growing number of people in the United States are practicing other religions, like Santeria, that require the use of bird feathers and cannot legally possess the eagle feathers they need for their religion. Frustration with the current system is feeding a burgeoning black market that threatens the viability of eagle populations. Neither of the Eagle Act’s goals are being met: eagles are not adequately protected, and tribal religious needs are not satisfied.

Scholarship in this area has neither fully elucidated the cross-cutting tensions in the administration of the Eagle Act, nor prescribed a concrete solution. This article fills that gap. First, the article examines the tension between species preservation and religious freedom; the tension between accommodating the religious needs of tribal members, but not others with the same religious needs; the tension within the case law itself; and the tension between the government’s effort to accommodate tribal religion and the deep dissatisfaction of the tribal community. This article then proposes a solution: changing the Fish and Wildlife Service’s administration of the exception from permitting individuals to permitting tribes and ultimately turning over much of the administration of the Indian tribes exception to the tribes acting collectively. The article explains how scholarship on indigenous cultural property, community property solutions to the tragedy of the commons, and tribal self-determination support this proposal. Finally, the article shows how this proposal will alleviate some of the tension in the administration of the Eagle Act’s Indian tribes exception.