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76 U. Colo. L. Rev. 989 (2005)
Eagle Feathers and Equality: Lessons on Religious Exceptions from the Native American Experience

handle is hein.journals/ucollr76 and id is 999 raw text is: EAGLE FEATHERS AND EQUALITY: LESSONS ON RELIGIOUS EXCEPTIONS FROM THE NATIVE AMERICAN EXPERIENCE KEViN J. WORTHEN* The legality and propriety of exempting religiously motivated con- duct 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 con- cept of equality. The Eagle Protection Act, which exempts Native Americans religious practitioners who are members offederally rec- ognized 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 relig- iously 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 reli- gious 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 Ameri- can religions and Native American tribal sovereignty indicate that the preferential scheme in the statute is, in fact, compatible with the core concepts of equality. INTRODUCTION The bald eagle has been a revered symbol of American values for two centuries. As Congress has noted, the bird is a symbolic represen- tation of a new nation under a new government in a new world... a symbol of the American ideals of freedom.1 The bald eagle and its * Dean and Professor of Law, J. Reuben Clark Law School, Brigham Young Univer- sity. 1. Bald Eagle Protection Act, ch. 278, 54 Stat. 250, 250 (1940) (codified as amended at 16 U.S.C. § 668 (2000)). See Antonia M. De Meo, Access to Eagles and Eagle Parts: Envi- ronmental Protection v. Native American Free Exercise of Religion, 22 HASTINGS CONST. L.Q. 771, 773 (1995). The bald eagle is so much a symbol of American values that it is com- monly referred to as the American eagle. See id. at 773 n.3 (citing THE RANDOM HOUSE

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