February 19, 1992
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No. 91-1861
ERWIN L. RUPERT, CLERGYMAN, NATIVE AMERICAN
CHURCH OF THE U.S.A.,
Plaintiff, Appellant,
v.
DIRECTOR, UNITED STATES FISH AND WILDLIFE
SERVICE,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate-Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Erwin L. Rupert on brief pro se.
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Barry M. Hartman, Acting Assistant Attorney General, Jacques
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B. Gelin, Peter Van Tuyn, Katherine W. Hazard, Attorneys,
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Department of Justice, Environment and Natural Resources
Division, Michael Mason, Office of Solicitor, U.S. Department of
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the Interior, and Robin Lepore, Office of Regional Solicitor,
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U.S. Department of the Interior, on brief for appellee.
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Per Curiam. The question in this appeal is whether the
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federal government can, without violating the Establishment
Clause of the First Amendment, (a) prohibit the possession of
eagle feathers, but (b) allow members of Native American tribes
to use eagle feathers for religious purposes, and (c) refuse to
extend that exemption to people who are not Native Americans but
who also seek to use eagle feathers for religious purposes. We
hold that, under these circumstances, the government can craft an
exemption that is limited to Native Americans because such an
exemption serves two important governmental goals.
The Eagle Protection Act, 16 U.S.C. 668 et. seq.,
prohibits the possession of bald eagles and golden eagles, or of
any parts of those eagles, such as their feathers. 16 U.S.C.
668a, however, creates an exemption to the general prohibition;
it authorizes the Secretary of the Interior to give permits for
the possession of eagles or eagle feathers for, among other
things, "the religious purposes of Indian tribes," whenever such
possession is "compatible with the preservation of the bald eagle
or the golden eagle." The Secretary has issued regulations that
describe the criteria for obtaining a permit. They require that
the applicant be "an Indian who is authorized to participate in
bona fide tribal religious ceremonies." 50 C.F.R. 22.22.
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The appellant, Erwin L. Rupert, is the pastor of an "all-
race" church which follows Native American religious customs,
including the ceremonial use of eagle feathers. (The government
does not, at least for purposes of this appeal, dispute the
sincerity of Mr. Rupert's beliefs.) Mr. Rupert has also
organized a "tribe" called the "Tribe of the Pahana," which means
the tribe of "returned white brothers and sisters." It is clear,
however, that Mr. Rupert does not descend from Native Americans
and is not a member of any officially recognized Native American
tribe. See 25 C.F.R. 83.7 (in order to obtain recognition as
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an "Indian tribe," group must show that it "has been identified
from historical times until the present on a substantially
continuous basis, as 'American Indian', or 'aboriginal'").
Mr. Rupert applied to the United States Fish and Wildlife
Service for a permit to use eagle feathers. He asked the Service
either to recognize his Tribe of Pahana as an "Indian tribe"
within the meaning of Section 668a, or to grant him dispensation
from the requirement that applicants for a permit be members of
Native American tribes. The Service refused to grant his
application, but passed it on to the Bureau of Indian Affairs as
the agency best capable of deciding whether the Tribe of Pahana
deserved recognition as a bona fide tribe. The Bureau refused to
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recognize Mr. Rupert's group as a tribe because it did "not
consist of Native American Indian descendants who are descended
from a specific historical tribe . . . ."
Mr. Rupert then sued the Director of the Fish and Wildlife
Service. He claimed that Section 668a, as the Director had
construed it, violated the Establishment Clause of the First
Amendment, which commands that Congress shall make "no law . . .
respecting an establishment of religion. . . ." The magistrate-
judge before whom the parties consented to proceed granted
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summary judgment to the defendant, and this appeal followed.
Mr. Rupert does not challenge the government's power to ban
the use of eagle feathers for all purposes, including religious
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ceremonies. See Employment Div., Dept. of Human Resources of
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Oregon v. Smith, 494 U.S. 872 (1990) (generally applicable,
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neutral criminal prohibition does not violate Free Exercise
Clause even if it proscribes conduct that litigant's religion
prescribes). But, he contends, once the government decides to
create an exemption for religious purposes, it must do so even-
handedly. An exemption for all who use eagle feathers for
religious purposes would not be an impermissible establishment of
religion, see Sherbert v. Verner, 374 U.S. 398, 409 (1963)
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(general religious exemption "reflects nothing more than the
governmental obligation of neutrality in the face of religious
differences"), but an exemption that frees one religious group
from the prohibition but leaves another bound by it offends the
principle of neutrality that is at the core of the Establishment
Clause. See Larson v. Valente, 456 U.S. 228, 244 (1982) ("The
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clearest command of the Establishment Clause is that one
religious denomination cannot be officially preferred over
another.").
Although Mr. Rupert's claim is rooted in the Establishment
Clause, "[n]eutrality in its application requires an equal
protection mode of analysis." Walz v. Tax Com. of City of New
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York, 397 U.S. 664, 696 (1970) (Harlan, J., concurring). See
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also Greenawalt, Religion as a Concept in Constitutional Law, 72
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Cal.L.Rev. 753, 797 (1984) (equal protection principles
"overarch" the tests of the religion clauses). And in fact a
number of federal appellate courts, including this court, have
used an equal protection analysis to scrutinize exemptions from
the drug laws that give some Native Americans the right to use
peyote for religious purposes. See Peyote Way Church of God,
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Inc. v. Thornburgh, 922 F.2d 1210, 1216-17 (5th Cir. 1991); Olsen
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v. Drug Enforcement Administration, 878 F.2d 1458, 1463 n.5 (D.C.
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Cir. 1989) ("in cases of this character, establishment clause and
equal protection analyses converge"); United States v. Rush, 738
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F.2d 497, 513 (1st Cir. 1984). See also Kennedy v. Bureau of
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Narcotics & Dangerous Drugs, 459 F.2d 415, 416-17 (9th Cir. 1972)
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(using a Fifth Amendment "substantive due process" analysis).
Laws that grant "denominational" preferences are generally
subject to "strict scrutiny," under which the preference "must be
invalidated unless it is justified by a compelling governmental
interest . . . and unless it is closely fitted to further that
interest. . . ." Larson v. Valente, 456 U.S. at 247. However,
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the matter is complicated here by the fact that the preference at
issue is directed toward Native Americans. Native Americans have
"unique legal status under federal law," and Congress has
"plenary power . . . based on a history of treaties and the
assumption of a 'guardian-ward' status, to legislate on behalf of
federally recognized Indian tribes." Morton v. Mancari, 417 U.S.
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535, 551-52 (1974). In a series of equal protection cases
involving laws attacked as treating Native Americans in ways that
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created racial classifications, the Supreme Court has "repeatedly
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held that the peculiar semisovereign and constitutionally
recognized status of Indians justifies special treatment on their
behalf when rationally related to the Government's 'unique
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obligation toward the Indians.'" Washington v. Washington State
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Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 673 n.20
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(1979) (emphasis added and citation omitted). See also United
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States v. Antelope, 430 U.S. 641, 645-46 (1977) (upholding
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federal jurisdiction over crimes committed by Native Americans on
reservations); Moe v. Confederated Salish & Kootenai Tribes of
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Flathead Reservation, 425 U.S. 463, 479-81 (1976) (striking down
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state's attempt to tax property and sales on reservation); Morton
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v. Mancari, 417 U.S. at 554 (upholding statute and regulation
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that gave preference to Native Americans in hiring and promotions
at Bureau of Indian Affairs).
The principles affirmed in these cases "point . . . broadly
to the conclusion that federal regulation of Indian affairs is
not based upon impermissible classifications", United States v.
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Antelope, 430 U.S. 641, 646 (1977), and we therefore see no
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reason not to use the "rational relationship" analysis here,
where the government has treated Native Americans differently
from others in a manner that arguably creates a religious
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classification. As we observed in United States v. Rush, such
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special treatment (in that case, an exemption from the drug laws
for religious use of peyote by members of the Native American
Church) also finds its source in Congress' historical obligation
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to respect Native American sovereignty and to protect Native
American culture, and "is uniquely supported by the legislative
history and congressional findings underlying the American Indian
Religious Freedom Act, [42 U.S.C. 1996,] which declares a
federal policy of 'protect[ing] and preserv[ing] for American
Indians their inherent right of freedom to believe, express and
exercise the[ir] traditional religions . . . , including but not
limited to access to sites, use and possession of sacred objects,
and the freedom to worship through ceremonials and traditional
rites.'" 738 F.2d at 513. See also Peyote Way Church of God,
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Inc. v. Thornburgh, 922 F.2d at 1217 ("unique guardian-ward
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relationship between the federal government and Native American
tribes precludes the degree of separation of church and state
ordinarily required by the First Amendment"); United States v.
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Warner, 595 F. Supp. 595, 600 (D.N.D. 1984) (peyote exemption
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valid given "governmental duty to preserve Indian culture and
religion"). But see Olsen v. Drug Enforcement Administration,
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878 F.2d at 1469 (Buckley, J., dissenting) (exemption for Native
American religious use of peyote not grounded in unique political
status of Native Americans but in their special culture and
religion, in which respect Native Americans cannot be treated
differently from others similarly situated without violating
Establishment Clause).
There is no question that the exemption at issue here is
"rationally related" to legitimate governmental interests. In
crafting Section 668a's religious-use exemption from the Eagle
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Protection Act (which otherwise abrogated Native American treaty
and aboriginal rights to hunt eagles), "Congress . . . considered
the special cultural and religious interests of Indians, balanced
those needs against the conservation purposes of the statute, and
provided a specific, narrow exception that delineated the extent
to which Indians would be permitted to hunt the bald and golden
eagle." United States v. Dion, 476 U.S. 734, 743-44 (1986). The
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exemption, therefore, does not merely serve the government's
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interests in (1) protecting Native American religion and culture
and (2) protecting a dwindling and precious eagle population; it
sets those interests in equipoise. Any diminution of the
exemption would adversely affect the former interest, but any
extension of it would adversely affect the latter. In equal
protection terms, the "fit" between classification and
legislative purpose is snug; indeed, given the nature of the
governmental interests at stake and the close fit between the
exemption and those interests, we would be hard put to say that
the exemption could not survive even "strict scrutiny."
Affirmed.
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