Hedgewitch

I saw a story recently on 2 non-Native Americans and a NA from a tribe that is no longer federally recognized who are in a suit over the use of eagle feathers.

See this link for info on aquiring eagle feathers for religious use: <a href="http://www.iwchildren.org/permit.htm" target="_blank">http://www.iwchildren.org/permit.htm</a>

What I'm wondering is whether this is constitutional or not. I'm not a lawyer, but from what little I know of Chruch/State laws:
1. A law cannot favor one religion or the lack of one
2. A law must have secular purpose
3. It can't excessively entangle the gov't w/ religion.

It doesn't seem like NA exceptions would qualify. I've asked about it before elsewhere, but the one person who answered was NA, and said "we were here first, you can't have my feathers." Well, I didn't want her feathers, I just wanted to understand

I could see it working under the fact that federally recognized tribes are considered separate nations within this one, but I haven't really been able to find anything in the few searches I've done.

Does anyone have any knowledge in this area, or can anyone point me to some good resources which explain this topic?

Thanks!
Hedgewitch

Toto

This is a good question, but there is not a good answer.

The US Constitution guarantees the free exercise of religion, and prohibits an establishment of religion. The three part test that you listed is roughly the Lemon test, which was discussed in the law review note that you posted in another post. The Lemon test was developed in the context of aid to parochial schools, and is used for deciding when a legistlative act would tend to establish a religion.

With the Native American religious use of eagle feathers, the question is whether a prohibition on eagle feathers is interfering with the free exercise rights of the Native Americans (or others who follow their religion.) The proponents of the law would regard themselves as accomodating a religious practice and guaranteeing the free exercize of religion, rather than tending to establish a religion. A number of court decisions and the US law on employment discrimination require that religious beliefs and practices be accomodated where they can be, although the Supreme Court has cut back on the requirements for accomodation.

I don't have the time right now to go into the detail this deserves. Your best resource in general for understanding these issues is Americans United for Separation of Church and State ( <a href="http://www.au.org" target="_blank">www.au.org</a> ), although I didn't find anything on their site about the eagle feather case.

You want to search on these terms: peyote (several of the most important cases involved peyote), RFRA (which stands for the Religious Freedom Restoration Act). (RFRA was struck down by the Supreme Court, but understanding the controversy over it might make the eagle feather case clearer.)

I did a <a href="http://www.google.com/advanced_search" target="_blank">Google</a> seach on the terms "religion eagle feather native american" and found some articles, such as <a href="http://www.press-on.net/articles/religous_freedom.htm" target="_blank">this one.</a>

<a href="http://www.au.org/flores.htm" target="_blank">This AU analysis</a> gives some history of the general controvery. For a contrary view, <a href="http://writ.news.findlaw.com/books/reviews/20010727_hamilton.html" target="_blank">this book review</a> by Marci Hamilton is interesting.

Hedgewitch

Thank you very much Toto. I'll be looking those over today