FROM BIRTH CONTROL TO EAGLE FEATHERS: HOW THE FIFTH CIRCUIT INCORRECTLY APPLIED THE SUPREME COURT’S REASONING IN BURWELL V. HOBBY LOBBY TO EAGLE FEATHERS ELIZABETH M . LITTLE* INTRODUCTION How far must the government go to accommodate an individual’s religious practices? W hat happens when that accommodation clashes with other important values? A person wishes to participate in a religious ceremony by possessing eagle feathers. U nder the Bald and Golden Eagle Protection Act (“Eagle Protection Act”), only members of federally recognized Indian tribes (“FRT1 members”) may possess eagle feathers. Thus, persons who are not members of2 federally recognized tribes (“non-FR T members”) are unable to claim an exception to the Eagle Protection Act and engage in religious practices that require eagle feathers.3 The Eagle Protection Act, enacted in 1940, prohibits possession of bald eagle and golden eagle parts and feathers and imposes penalties for violations. Yet4 several American Indian tribes use eagle feathers for cultural and religious purposes. Recognizing the importance of the government-to-governm ent5 relationship between federally recognized tribes and the federal government, Congress in 1962 provided an exception to the prohibition on the possession of eagle parts and feathers “for the religious purposes of Indian tribes.” The United6 States Fish and W ildlife Service (“FW S”) interprets this exception as applicable only to members of federally recognized tribes. Thus, non-FRT members remain7 unable to legally possess eagle feathers for religious purposes.8 These persons denied an exception have attempted to use the Religious Freedom Restoration Act (“RFRA”) to claim the sam e exception as FRT members. RFRA, enacted in 1993, provides that the federal government may not9 * J.D. Candidate, 2016, Indiana University Robert H. McKinney School of Law; B.A., 2011, Indiana University-Purdue University Indianapolis. I would like to thank my husband, Justin Little, and my family for their endless patience, support, encouragement, and enthusiasm in all of my endeavors. I would also like to thank Professor Eric Dannenmaier for his invaluable guidance and feedback throughout the development of this Note. 1. 16 U.S.C. § 668(a) (2012). 2. Id. 3. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 468-69 (5th Cir. 2014). 4. 16 U.S.C. § 668(a). 5. McAllen Grace, 764 F.3d at 468-69; United States v. Wilgus, 638 F.3d 1274, 1280 (10th Cir. 2011). 6. 16 U.S.C. § 668(a). 7. 50 C.F.R. § 22.22(a)(5) (2014). 8. McAllen Grace, 764 F.3d at 468-69; Wilgus, 638 F.3d at 1280. 9. McAllen Grace, 764 F.3d at 468; Wilgus, 638 F.3d at 1277. http://dx.doi.org/10.18060/4806.0067 242 INDIANA LAW REVIEW [Vol. 49:241 “substantially burden a person’s exercise of religion.” Under RFRA, the10 government may substantially burden the exercise of religion only if the government “demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”11 In 2011, the Tenth Circuit in United States v. Wilgus held that the Eagle Protection Act, by excluding non-FRT members, does not violate RFRA. Three12 years later, on August 20, 2014, the Fifth Circuit in M cAllen Grace Brethren Church v. Salazar found that RFRA does require a religious exception in the E agle Protection Act for a broader class of persons. W hile the Tenth Circuit13 found that the government’s current regulation was the least restrictive means for furthering the government’s compelling interests, the Fifth Circuit found that14 the government had not met its burden of demonstrating that the government’s current regulation was the least restrictive means. One of the principle reasons15 for the Fifth Circuit’s departure was its dependence on the intervening decision of the Supreme Court in Burwell v. Hobby Lobby Stores, Inc.16 The Hobby Lobby decision addressed a mandate to include contraceptive coverage in health plans under the Patient Protection and Affordable Care A ct of 2010 (“ACA”) and reinforced the strict scrutiny analysis courts should apply when evaluating a RFRA claim. The Supreme Court reiterated that the standard17 courts should apply to determine whether a regulation is the least restrictive means of furthering the government’s compelling interest “is exceptionally demanding.” In Hobby Lobby, the very presence of an exception in the statute18 authorizing a waiver of the contraceptive mandate demonstrated that there was a less restrictive means for furthering the government’s compelling interests.19 The Fifth Circuit found the Supreme Court’s reasoning in Hobby Lobby regarding the significance of an exception to be dispositive. The Fifth Circuit20 then reevaluated the Eagle Protection Act exceptions in light of Hobby Lobby to find that the exception for federally recognized tribes may not demonstrate a less restrictive means of advancing the government’s interests. However, the Fifth21 Circuit failed to recognize the differences between providing an exception for tribes based upon political and cultural considerations and providing an exception for classes of religious adherents based on individual beliefs. This Note examines 10. 42 U.S.C. § 2000bb-1(a) (2012). 11. Id. § 2000bb-1(b) (2012). 12. Wilgus, 638 F.3d at 1296. 13. McAllen Grace, 764 F.3d at 480. 14. Wilgus, 638 F.3d at 1296. 15. McAllen Grace, 764 F.3d at 480. 16. 134 S. Ct. 2751 (2014). 17. Id. at 2780. 18. Id. 19. Id. at 2781-82. 20. McAllen Grace, 764 F.3d at 472-73 (citing Hobby Lobby, 134 S. Ct. at 2782). 21. Id. at 477. 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 243 the flaws in the Fifth Circuit’s reasoning in M cAllen Grace. Part I of this Note provides background on the Eagle Protection Act and RFRA. It examines the interplay between the two acts prior to Hobby Lobby, as demonstrated by Wilgus. It then examines Hobby Lobby and its implications, as applied in M cAllen Grace. Part II discusses the differences between the Fifth Circuit’s decision in M cAllen Grace and the Tenth Circuit’s decision in W ilgus. It explains how the Fifth Circuit, by applying the reasoning from Hobby Lobby, arrived at a different conclusion than the Tenth Circuit. The Fifth Circuit should have examined how the limited supply of eagle feathers and Congress’s efforts to recognize political and cultural duties in the Eagle Protection Act distinguishes M cAllen Grace from Hobby Lobby. Part III examines the compelling interests of the Eagle Protection Act and challenges the finding in M cAllen Grace that the Eagle Protection Act violated RFRA. This Note argues that the Fifth Circuit in M cAllen Grace incorrectly discounted the government’s compelling interest in fulfilling responsibilities to federally recognized tribes as unique political and cultural entities. FW S regulations implementing the Eagle Protection A ct’s exception for “religious purposes of Indian tribes” interpret “Indian tribes” as federally recognized tribes. This interpretation is entitled to deference under Chevron, U.S.A., Inc. v. National Resources Defense Council. The Fifth Circuit should have performed a Chevron22 analysis to defer to FW S’s determination that Congress enacted the exception in the Eagle Protection Act “for the religious purposes of Indian tribes” for political rather than religious reasons. I. B ACKGROUND A. The Eagle Protection Act Congress enacted the Eagle Protection Act in 1940 in an effort to protect and preserve the bald eagle. Congress recognized that protecting bald eagles was a23 matter of conservational as well as cultural importance. The enacting clause on24 June 8, 1940, provided, “the bald eagle is no longer a mere bird of biological interest but a symbol of the American ideals of freedom . . . and whereas the bald eagle is now threatened with extinction. The Eagle Protection Act provides that25 it is illegal to “take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner, any bald eagle commonly known as the A m erican eagle, or any golden eagle, alive or dead, or any part, nest, or egg thereof of the foregoing eagles.” Violators of the act are26 subject to a fine of “not more than $5,000 or imprisoned not more than one year 22. 467 U.S. 837 (1984). 23. Bald Eagle Protection Act, ch. 278, 54 Stat. 250 (1940). 24. Id. 25. 16 U.S.C. § 668 (2012). 26. Id. § 668(a). 244 INDIANA LAW REVIEW [Vol. 49:241 or both.”27 In 1962, the Eagle Protection Act was amended to add protections for the golden eagle as well as provide for exceptions to the prohibition on the taking, possession, and transportation of bald and golden eagle: W henever, after investigation, the Secretary of the Interior shall determine that it is compatible with the preservation of the bald eagle or the golden eagle to permit the taking, possession, and transportation of specimens thereof for the scientific or exhibition purposes of public museums, scientific societies, and zoological parks, or for the religious purposes of Indian tribes, or that it is necessary to permit the taking of such eagles for the protection of wildlife or of agricultural or other interests in any particular locality, he may authorize the taking of such eagles pursuant to regulations which he is hereby authorized to prescribe.28 Pursuant to the amendments, FW S, under the authority of the Secretary of the Interior, drafted regulations providing for these exceptions. The regulations29 were codified in section 22.22 of title 50 of the Code of Federal Regulations and provide a framework pursuant to which FW S issues permits for eagle parts for the religious purposes of federally recognized Indian tribes.30 1. FWS Procedures to Legally Possess Eagle Feathers.— The process for an applicant to obtain a permit from FW S to possess eagle parts for religious purposes of Indian tribes is lengthy. The applicant must first prove membership31 in a federally recognized tribe by attaching “a certification of enrollment in an Indian tribe that is federally recognized under the Federally Recognized Tribal List Act of 1994.” FW S then considers if issuing the permit “is compatible with32 the preservation of the bald and golden eagle.” T o make that determination,33 FW S considers the “direct or indirect effect” of the permit on bald and golden eagle populations and “whether the applicant is an Indian who is authorized to participate in bona fide tribal religious ceremonies.” FW S focuses on whether34 the tribal ceremony is “bona fide,” not whether an applicant’s religion is “bona fide.”35 Once FW S approves a permit, it is forwarded to the National Eagle Repository (“Repository”) in Commerce City, Colorado. The Repository36 27. Id. 28. Id. (emphasis added). 29. 50 C.F.R. § 22.22(a)(5) (2014). 30. Id. § 22.22. 31. Id. 32. Id. § 22.22(a)(5). 33. Id. § 22.22(c). 34. Id. § 22.22(c)(1)-(2). 35. Id. § 22.22(c)(2). 36. Kyle Persaud, A Permit to Practice Religion for Some but Not for Others: How the Federal Government Violates Religious Freedom When It Grants Eagle Feathers Only to Indian 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 245 provides American Indians with parts of deceased eagles for religious purposes.37 The Repository collects dead eagles, most often those that “have died as a result of electrocution, vehicle collisions, unlawful shooting and trapping, or from natural causes.” The Repository then distributes the parts of the eagles to the38 next individual on the waiting list. The wait for an applicant to receive the39 requested eagle parts is lengthy because of the large demand and limited supply.40 The current wait to receive a whole eagle is three and a half years. For eagle41 feathers, the current wait is approximately six months.42 2. Problems in Obtaining a Permit.— The Eagle Protection Act allows FRT members to obtain feathers for religious purposes, but it provides no exception for non-FRT m embers, even where they are religiously motivated. Some of43 these persons are members of the more than 200 tribes that are not federally recognized and others are not members of any tribe. They may wish to practice44 45 their beliefs by possessing feathers of eagles, but they have no recourse under the Eagle Protection Act.46 Some of those non-FRT members claim that the Eagle Protection Act violates their free exercise of religion by prohibiting them from possessing eagle feathers for their religious ceremonies. They also claim the Eagle Protection Act violates47 RFRA.48 B. RFRA Congress enacted RFRA in 1993 “to provide very broad protection for religious liberty.” RFRA provides greater protection for religious free exercise49 than the Free Exercise Clause in the First A mendment. The Supreme Court has50 indicated that under the Free Exercise Clause, “neutral, generally applicable laws Tribe Members, 36 OHIO N.U. L. REV. 115, 124 (2010). 37. National Eagle Repository, U.S. FISH & WILDLIFE SERV., http://www.fws.gov/mountain- prairie/law/eagle/ [http://perma.cc/HX85-UJXF] (last updated Jan. 10, 2010). 38. Id. 39. Id. 40. Id. 41. Id. 42. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 470 (5th Cir. 2014). 43. See id. at 468-69; United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011). 44. Alexa Koenig & Jonathan Stein, Federalism and the State Recognition of Native American Tribes: A Survey of State-Recognized Tribes and State Recognition Processes Across the United States, 48 SANTA CLARA L. REV. 79, 82 (2008); see also McAllen Grace, 764 F.3d at 468- 69. 45. See McAllen Grace, 764 F.3d 465; Wilgus, 638 F.3d 1274. 46. See McAllen Grace, 764 F.3d at 472; Wilgus, 638 F.3d 1274. 47. See McAllen Grace, 764 F.3d at 468. 48. See id. 49. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014). 50. Id. 246 INDIANA LAW REVIEW [Vol. 49:241 may be applied to religious practices even when not supported by a com pelling governmental interest.”51 RFRA, however, provides that the federal government may not “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” If a court finds that a federal governmental action52 substantially burdens an individual’s exercise of religion, the court grants the individual an exception from the burdensome law. T he individual will not be53 granted an exception if the federal government “demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”54 C. Interplay Between the Eagle Protection Act and RFRA Prior to Hobby Lobby as Demonstrated by W ilgus Samuel Ray W ilgus sought to possess eagle feathers for religious purposes, but he was not a member of a federally recognized tribe. Although not born55 American Indian, W ilgus became a “follower of a Native American Faith”56 57 later in his life and was welcomed by members of the Southern Paiute N ation.58 He ultimately became a “blood brother” after living with members. Several59 m em bers of the Southern Paiute Nation and members of other tribes gave eagle feathers to W ilgus for religious purposes and gifts. Because Paiute law “does60 not permit the adoption of non-Native American persons,” he was never a formally recognized member of the tribe. He thus possessed the eagle feathers61 in violation of the Eagle Protection A ct. H e pleaded guilty to two misdemeanor62 counts due to his possession of 141 eagle feathers without a permit after he was pulled over for a traffic stop. His feathers were confiscated and he received a63 penalty of twelve months probation and a $50 fine.64 After pleading guilty, W ilgus appealed what he viewed as a violation of his rights under RFRA. In 2011, the Tenth Circuit in Wilgus evaluated whether65 51. City of Boerne v. Flores, 521 U.S. 507, 514 (1997). 52. 42 U.S.C. § 2000bb-1(a) (2012). 53. Id. 54. Id. § 2000bb-1(b). 55. United States v. Wilgus, 638 F.3d 1274, 1280 (10th Cir.2011). 56. Id. 57. Id. at 1277. 58. Id. at 1280. 59. Id. 60. Id. 61. Id. 62. Id. 63. Id. 64. Id. 65. Id. 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 247 W ilgus’s conviction violated RFRA. The Tenth C ircuit found that the Eagle66 Protection Act substantially burdened W ilgus’s exercise of religion. Because the67 court found that the Eagle Protection Act substantially burdened W ilgus’s exercise of religion, the court was required under RFRA to determine whether the Eagle Protection Act exception for religious purposes of Indians applying solely to FRT members was “in furtherance of a compelling governmental interest; and [was] the least restrictive means of furthering that compelling governmental interest.” Before determining whether the existing interpretation was the least68 restrictive means, the court analyzed the government’s compelling interests: (1) protecting eagles and (2) “the protection of the culture of federally-recognized69 Indian tribes.” T he court first accepted the government’s argument that it had70 a compelling interest in the protection of bald and golden eagles. It recognized71 that protection of the bald and golden eagles is necessary to protect the national symbol of the bald eagle.72 The court discussed in more detail the government’s second compelling interest. Instead of accepting the more general interest of protecting all Native73 American culture and religion, the court found the government’s second compelling interest was in “protection of the culture of federally-recognized Indian tribes.” First, the court acknowledged that Congress has an “obligation74 of trust to protect the rights and interests of federally-recognized tribes and to promote their self-determination.” Second, the court found this formulation of75 the government’s interest was consistent with the Eagle Protection Act. The76 court indicated that Congress could have provided an exception for Native American religions, but instead provided an exception for “religious purposes of Indian tribes.” The court found that this indicated that Congress intended to77 protect the religious purposes of federally recognized tribes instead of Native American religion: Congress specifically chose to tie the exception to ‘Indian tribes,’ rather than individual practitioners. From this [the court] infer[red] that Congress saw the statutory exception not as protecting N ative A merican religion qua religion, but rather as working to preserve the culture and 66. Id. at 1274. 67. Id. at 1283-84. 68. Id. at 1279. 69. Id. at 1285. 70. Id. at 1285-86. 71. Id. at 1285. 72. Id. 73. Id. 74. Id. 75. Id. at 1285-86 (quoting United States v. Hardman, 297 F.3d 1116, 1128 (10th Cir. 2002) (en banc)). 76. Id. at 1286. 77. Id. (emphasis added). 248 INDIANA LAW REVIEW [Vol. 49:241 religion of federally-recognized tribes.78 The court found FW S’s formulation to be consistent with the Supreme Court’s recognition of the special relationship the federal government has with federally recognized tribes. Quoting M orton v. M ancari, the court found a79 special obligation exists to federally recognized tribes because “Congress was empowered ‘to single out for special treatment a constituency of tribal Indians.’” Finally, the court found this formulation best because of its concern80 with an Establishment Clause problem if the government provided an exception to Native American religions rather than an exception for religious purposes of federally recognized tribes.81 Turning to the second RFRA question, the Tenth Circuit found that the existing regulatory structure was the least restrictive means of promoting the government’s compelling interests. The court rejected two alternatives offered82 by W ilgus that he claimed were less restrictive than the absolute ban on possession: “opening the permitting process to all adherents of N ative American Religion” and “allowing members of Tribes to give feathers to [non-FRT members] who practice Native American Religion.” T he court found that the83 first alternative of allowing non-FRT members to obtain a permit “would likely not affect the government’s compelling interest in eagle protection.” However,84 it would fail to advance the government’s interest in protecting the culture and religion of federally recognized tribes. If the permit process were opened up to85 all religious persons, then members of federally recognized tribes would be burdened with even longer wait times to receive their feathers. There would also86 be enforcement problems with policing individuals and facing possible questions regarding their religious sincerity.87 The court found that the second alternative of allowing tribe members to give feathers to non-members would likely not have an effect on eagle protection.88 However, it would fail to advance the government’s interest of protecting the 78. Id. 79. Id. (citing Morton v. Mancari, 417 U.S. 535, 537-39 (1974)). 80. Id. (quoting Morton, 417 U.S. at 552). 81. Id. at 1287. 82. Id. at 1295. 83. Id. at 1292-95. 84. Id. at 1292. 85. Id. at 1294. 86. Id. at 1293. 87. Id. The Supreme Court has been hesitant to allow the government to examine an adherent’s sincerity of religion. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2805 (2014) (Ginsburg, J., dissenting); United States v. Lee, 455 U.S. 252, 263 n.2 (1982) (Stevens, J., concurring) (“The risk that governmental approval of some [religions] and disapproval of others will be perceived as favoring one religion over another is an important risk the Establishment Clause was designed to preclude.”). 88. Wilgus, 638 F.3d at 1294. 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 249 culture and religion of federally recognized tribes. The court found that this89 option would again create problems with wait times for FRT members and problems with enforcement. The court thus held, unanimously, that the existing90 regulatory schem e was the least restrictive means of advancing both of the government’s compelling interests, and the Eagle Protection Act did not violate RFRA.91 D. Hobby Lobby and its Implications as Applied in M cAllen Grace 1. Hobby Lobby.— In the June 2014 case, Hobby Lobby, the Supreme Court was asked to determine whether the contraceptive mandate of the Patient Protection and Affordable Care Act of 2010 (“ACA”) violated RFRA when applied to a closely held corporation controlled by persons with religious beliefs in opposition to covered contraceptive. The ACA mandates that employers92 provide for women “all Food and Drug Administration approved contraceptive m ethods, sterilization procedures, and patient education and counseling.”93 Included in these contraceptive methods were four alternatives that may prevent a fertilized egg from attaching to the uterus. Health and Human Services94 (“HHS”) provides exceptions under this contraceptive m andate for religious employers, such as churches, and some religious nonprofit organizations. H HS95 also provides exceptions for employers that provide “grandfathered health plans,” those existing and unaltered since M arch 23, 2010, and for em ployers that have fewer than fifty employees.96 Constega W ood Specialties, Hobby Lobby, and M ardel, all closely held businesses owned by religious families, sued HHS claiming the contraceptive mandate violated RFRA. The families who owned the three for-profit businesses97 asserted that providing certain contraceptives to their employees would violate their religious beliefs.98 The Suprem e Court found that the absence of an exception for religious purposes of closely held businesses imposed a substantial burden on the businesses’ religious beliefs. After finding a substantial burden, the Court99 considered whether HHS demonstrated that the mandate: “(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of 89. Id. at 1295. 90. Id. at 1294. 91. Id. at 1296. 92. Hobby Lobby, 134 S. Ct. at 2785. 93. Id. at 2762. 94. Id. 95. Id. at 2763. 96. Id. at 2764. 97. Id. at 2764-66. 98. Id. at 2766. 99. Id. at 2779. 250 INDIANA LAW REVIEW [Vol. 49:241 furthering that compelling governmental interest.” On the first question, the100 C ourt “assumed” that providing contraceptives to women without cost sharing was a compelling interest, finding it “unnecessary to adjudicate this issue.”101 On the second issue, the Court found that H H S failed to satisfy the least restrictive means test. HHS failed to show that the plaintiffs’ proposed102 alternatives to providing these contraceptives would not further HHS’s goals.103 The Court found this to be evidence that “HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs” by providing an exception for religious organizations and religious non-profit organizations.104 Thus, the Court held that the contraceptive mandate of the ACA violated RFRA, as HHS did not show that its regulation was the least restrictive means of furthering its compelling interests.105 2. M cAllen Grace.— The Fifth Circuit decided M cAllen Grace less than two months after Hobby Lobby and relied heavily on the Supreme Court’s RFRA analysis. M cAllen Grace involved two non-FRT members wishing to possess106 eagle feathers for religious purposes. They were found in possession of eagle107 feathers at a religious powwow and charged with violating the Eagle Protection Act. One of the accused, Robert Soto, was a member of the Lipan Apache108 Tribe, which is not federally recognized. The second accused, M ichael Russell,109 was not a m ember of a tribe, but participated in American Indian religious ceremonies. W hile Soto and Russell participated in a religious powwow110 ceremony, a federal agent seized eagle feathers in their possession and charged them with unlawful possession of bald and golden eagle feathers without a permit. After paying a fine and unsuccessfully petitioning FW S for the return111 of their feathers, Soto and Russell filed suit in the United States District Court for the Southern District of Texas challenging the Eagle Protection Act under RFRA.112 The district court granted summary judgment for the government, finding the Eagle Protection Act did not violate RFRA. The court found that FW S’s113 application of the Eagle Protection Act was the least restrictive means of 100. Id. (quoting 42 U.S.C. § 2000bb-1(b) (2012)). 101. Id. at 2780. 102. Id. 103. Id. 104. Id. at 2782. 105. Id. at 2785. 106. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465 (5th Cir. 2014). 107. Id. 108. Id. at 468. 109. Id. 110. Id. 111. Id. 112. Id. at 469. 113. Id. 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 251 furthering the government’s compelling interest. The Fifth Circuit reversed the114 district court’s grant of summary judgment and remanded the case to determine whether FW S is able to show that its current permitting scheme does not violate RFRA. The Fifth Circuit found the government did not carry its burden of115 demonstrating that the FW S permit regulation does not violate RFRA.116 In beginning its RFRA analysis, the Fifth Circuit recognized that the Eagle Protection Act did substantially burden Soto and Russell’s religion. The court117 then “assumed” the government’s compelling interests were the same as in Wilgus: (1) protecting eagles and (2) “fulfilling responsibilities to federally recognized tribes.” As the Tenth Circuit had in Wilgus, the Fifth Circuit118 accepted, with little comment, that protecting bald eagles and golden eagles was a compelling interest “because of [the eagle’s] status as our national symbol, regardless of whether the eagle still qualifies as an endangered species.” The119 court also recognized that “the Supreme Court has suggested that protecting migratory birds in general might qualify as a compelling interest.”120 In contrast to the Tenth Circuit, the Fifth Circuit did not com pletely accept, but assumed for the purposes of the RFRA analysis, the government’s second compelling interest in fulfilling the government’s unique responsibility to federally recognized tribes. The fact that “C ongress did not define ‘Indian121 tribes’ in [16 U.S.C. § 668a], and the fact that the Department’s approach has not been entirely uniform on this, [the court could not] definitively conclude that Congress intended to protect only federally recognized tribe member’s religious rights in this section.” The court rejected the government’s argument that the122 unique relationship between the government and federally recognized tribes justifies granting religious exceptions only to these tribes.123 After “assuming” that protecting eagles and the relationship of the government and federally recognized tribes were compelling interests, the Fifth Circuit found that the government failed to demonstrate “that there are no other means of enforcement that would achieve the same goals.” The court relied124 heavily on the Suprem e C ourt’s reasoning in Hobby Lobby to hold that the government failed to meet its burden of proving that the Eagle Protection Act is 114. Id. at 468. 115. Id. at 480. 116. Id. 117. Id. at 472. 118. Id. at 475, 478. 119. Id. at 473. 120. Id. (citing Missouri v. Holland, 252 U.S. 416, 435 (1920)). The Supreme Court in Holland more than suggested that protecting migratory birds is a compelling interest. Justice Holmes noted that migratory birds were “a national interest of very nearly the first magnitude.” Holland, 252 U.S. at 435. 121. McAllen Grace, 764 F.3d at 473-75. 122. Id. at 473. 123. Id. at 474. 124. Id. at 477. 252 INDIANA LAW REVIEW [Vol. 49:241 in furtherance of the government’s compelling interests by the least restrictive means: “Recent Supreme Court cases . . . have reaffirmed that the burden on the government in demonstrating the least restrictive means test is a heavy burden.”125 In explaining the government’s burden, the court provided that “the Department must provide actual evidence, not just conjecture, demonstrating that the regulatory fram ework in question is, in fact, the least restrictive means.” The126 court stated that “the very existence of a government-sanctioned exception to a regulatory scheme that is purported to be the least restrictive means can, in fact, demonstrate that other, less restrictive alternatives could exist.”127 The government argued that providing exceptions to non-FRT members would harm the compelling interest of protecting eagles. However, the court128 rejected that these exceptions would weaken enforcement aimed at preventing the illegal trade of eagle parts and that enforcement would be disadvantaged by the lack of methods to verify an individual’s heritage. The court found first that the129 government provided no evidence that allowing broader exceptions would increase illegal poaching because “it is not necessary for an eagle to die in order to obtain its feathers.” Second, the government was relying on interviews with130 American Indians to determine whether the feathers in their possession were legal. Third, the government did not offer evidence that the black market would131 grow if the government broadened the exceptions. Fourth, the broad exception132 in the Eagle Protection Act allowing permits for “other interests” suggested that a broad religious exception would not be adverse to its goals. Fifth, the133 government had not carried its burden in demonstrating there are no other methods to accomplish the same goals. Finally, the court rejected the134 government’s argument that enforcement agents would have to be “religious police” if a broad exception were permitted because there is no evidence that these individuals would not be able to prove their religious purpose.135 The court also found that the government did not demonstrate how allowing individuals with sincere religious beliefs to possess eagle feathers would threaten the government’s interest in fulfilling its responsibilities to federally recognized tribes. The court rejected the government’s argum ent that broadening the136 125. Id. at 475 (citing Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2780-82 (2014); McCullen v. Coakley, 134 S. Ct. 2518, 2540 (2014)). 126. Id. at 476 (citing Hobby Lobby, 134 S. Ct. at 2780-81) (emphasis in original). 127. Id. at 475. 128. Id. at 477. 129. Id. at 476. 130. Id. 131. Id. 132. Id. at 477 (“[I]t is also possible to hypothesize that the black market exists precisely because sincere adherents to American Indian religions cannot otherwise obtain feathers.”). 133. Id. 134. Id. 135. Id. 136. Id. at 478. 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 253 exception would increase the time an FRT member must wait to receive a feather. The court found that the government had not provided specific137 evidence demonstrating the number of individuals wishing to possess eagle feathers for religious purposes that will apply for a permit if it broadens the exception. The court also found that the wait times result from the138 government’s creation of an inefficient permitting system and that the government cannot develop an inefficient system and then fail to accommodate because of those inefficiencies. In the court’s view, the government did not139 demonstrate that alternatives offered by the plaintiffs, “collecting molted feathers from zoos or allowing tribes to run aviarie,” would not achieve its goals.140 Because the government did not demonstrate that the existing regulation was the least restrictive means of furthering its compelling interests, the court reversed the grant of summary judgment for the government and remanded for the government to better develop its records.141 II. D IFFERENCES B ETW EEN W ILGUS AND M CALLEN G RACE The Tenth Circuit decided Wilgus in 2011 and the Fifth Circuit decided142 M cAllen Grace only three years later in 2014. Although both decisions143 considered whether the Eagle Protection Act violated RFRA by prohibiting non- FRT members from possessing eagle feathers, the circuits decided the issue differently. The facts of the cases differ slightly, but materially, they involve144 analogous claims.145 A. The Plaintiffs and the Courts’ Understanding of the Compelling Interests One of the most significant differences between the cases is the identity of the challengers and how the courts viewed the government’s compelling interests. In Wilgus, the challenger to the Eagle Protection Act was a person, who was not a member of any tribe, wishing to possess eagle feathers for religious purposes.146 M cAllen Grace primarily involved a member of a non-federally recognized tribe, as well as a person wishing to possess eagle feathers for religious purposes not a m ember of any tribe. W hen the Fifth Circuit discussed the government’s147 interest in protecting the culture and religion of federally recognized tribes, the court stated that it could not “definitively conclude that Congress intended to 137. Id. at 478-79. 138. Id. at 478. 139. Id. at 479. 140. Id. 141. Id. at 480. 142. United States v. Wilgus, 638 F.3d 1274 (10th Cir. 2011). 143. McAllen Grace, 764 F.3d 465. 144. Id. at 480; Wilgus, 638 F.3d at 1274. 145. McAllen Grace, 764 F.3d 465; Wilgus, 638 F.3d 1274. 146. Wilgus, 638 F.3d at 1277. 147. McAllen Grace, 764 F.3d at 468. 254 INDIANA LAW REVIEW [Vol. 49:241 protect only federally recognized tribe members’ religious rights.” The court148 recognized that the Texas Senate has acknowledged the Lipan Apache Tribe as having a “government to government” relationship with Texas.149 Based on the evidence provided by the government, the Fifth Circuit was not convinced the government had a compelling interest in only protecting the relationship with federally recognized tribes and not with all American Indians.150 The court questioned whether the plaintiffs fell within the class of persons the Eagle Protection Act was designed to protect and thus expanding the Eagle Protection Act to include them would actually continue to advance the government’s compelling interest. Quoting United States v. Hardman, the court151 considered that “[a]llowing a wider variety of people to participate in Native American religion could just as easily foster Native American culture and religion by exposing it to a wider array of persons.”152 This understanding of the government’s compelling interest in protecting the religion and culture of all who practice a religion of American Indians differs from the T enth Circuit’s understanding of the compelling interest in Wilgus.153 The Tenth Circuit in Wilgus explicitly rejected a “general protection of Native American Religion.” Instead, the Tenth Circuit found there was a compelling154 interest in the protection of the culture and religion of only federally recognized tribes. The court discussed at length the importance of protecting the unique155 government-to-government relationship the federal government has with federally recognized tribes. Because Congress included the exception for the “religious156 purposes of Indian tribes” and not for individuals, the Tenth Circuit found that “Congress saw the statutory exception not as protecting Native American religion qua religion, but rather as working to preserve the culture and religion of federally-recognized tribes.” The court viewed the exception for federally157 recognized tribes as political instead of religious. Thus, the Tenth Circuit found158 that including non-FRT members would fail to advance the government’s interest 148. Id. at 473. 149. Id. This understanding is in contrast to the Supreme Court’s understanding of the relationship between the federal government and Indian tribes. Cherokee Nation v. Georgia, 30 U.S. 1, 16 (1831). The Supreme Court in Cherokee Nation noted that the “relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else.” Id. Thus, the federal government recognizing Indian tribes imposes a special duty to Indian tribes that state recognition does not. 150. McAllen Grace, 764 F.3d at 475. 151. Id. at 473. 152. Id. at 472 (quoting United States v. Hardman, 297 F.3d 1116, 1133 (10th Cir. 2002) (en banc) (emphasis in original)). 153. United States v. Wilgus, 638 F.3d 1274, 1285-88 (10th Cir. 2011). 154. Id. at 1287. 155. Id. at 1287-88. 156. Id. at 1285-88. 157. Id. at 1286 (emphasis added). 158. Id. at 1287-88. 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 255 in protecting its unique government-to-government relationship with federally recognized tribes. This distinction is critical.159 As a result of viewing the government’s compelling interest to tribes differently, the courts in the two cases reviewed the proposed alternatives differently. The Tenth Circuit in Wilgus considered two alternatives: (1) expanding the Repository perm itting process to all persons wishing to possess eagle feathers for religious purposes and (2) “allowing tribal members who lawfully possess eagle parts to give those parts as gifts to non-tribal-members who are nevertheless sincere practitioners.” The Tenth Circuit rejected both of160 these alternatives as failing to advance the government’s compelling interests.161 The Fifth Circuit in M cAllen Grace also considered whether the government’s argument that expanding the Repository permitting process to all persons wishing to possess eagle feathers for religious purposes would be less restrictive. Unlike the Tenth Circuit, the Fifth Circuit found that the162 government failed to show in the summary judgment stage that this was not a “viable alternative.” The Fifth Circuit first found that expanding the permitting163 process would not increase poaching because an eagle does not have to die for non-members to possess its feathers. Second, the court found that the expansion164 would not threaten the enforcement of the Eagle Protection Act because enforcement agents would continue to interview persons who possess the eagle feathers to determine the legality of the feathers. Third, the court did not agree165 with the government’s argument that the black market would grow if m ore individuals were able to possess eagle feathers. Instead, the court noted that “it166 is also possible to hypothesize that the black market exists precisely because sincere adherents to American Indian religions cannot otherwise obtain eagle feathers.” Fourth, the court found that since the statute already contains an167 extensive provision for issuing permits for “other interests,” it is likely not adverse to the statute’s goal of allowing an exception for a religious person.168 Further, the court found that, to accomplish the same objectives, there are other possible means to enforce the Eagle Protection Act. One such alternative was169 for individuals possessing eagle feathers to hold a permit, which would prove their legality. Finally, the court found that the government’s argument that170 159. Id. at 1293-94. 160. Id. at 1290. 161. Id. at 1295. 162. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 476 (5th Cir. 2014). 163. Id. at 477. 164. Id. at 476. 165. Id. 166. Id. at 477. 167. Id. 168. Id. 169. Id. 170. Id. 256 INDIANA LAW REVIEW [Vol. 49:241 agents would have to be “religious police” was not supported by evidence. The171 court found that persons wishing to possess eagle feathers for religious purposes could “demonstrate their religious need for eagle feathers.”172 The Fifth Circuit also discounted the government’s argument that opening up the Repository to all persons for religious purposes, regardless of whether they are members of a federally recognized tribe, would not advance the government’s interest in fulfilling its responsibilities to federally recognized tribes. The court173 found there was not sufficient evidence to establish that the Repository would be overwhelmed by requests and that the government would not be able to continue fulfilling its responsibilities to tribes.174 B. Ramifications of Hobby Lobby’s Least Restrictive M eans Standard A second decisive distinction between Wilgus and M cAllen Grace is the emergence of the Supreme Court’s decision in Hobby Lobby. The Supreme Court decided Hobby Lobby in June 2014 and the Fifth Circuit decided M cAllen175 Grace less than two months later in August 2014. The Fifth Circuit in M cAllen176 Grace relied heavily on the Supreme Court’s reasoning in Hobby Lobby.177 W here the government's argument in Wilgus was sufficient for the Tenth Circuit to find the government's implementation of the Eagle Protection Act was the least restrictive means, the government's argument in M cAllen Grace was178 not sufficient. In Hobby Lobby, the Supreme Court found that the alternative179 proposed by the plaintiffs would still advance the government’s interest in providing contraceptives to women cost-free. The alternative was for the180 federal government to pay for the contraceptives rather than mandating that businesses with religious objections pay. The existing exception provided for181 the government to pay for contraceptives of employees of religious non-profits or churches who religiously object to providing these contraceptives to their employees. Thus, the Court found that the government could also pay for the182 contraceptives for the employees of for-profit closely held businesses to advance its compelling interest in providing contraceptives to women without cost.183 Relying on this understanding, the Fifth Circuit in M cAllen Grace found that 171. Id. 172. Id. 173. Id. at 478. 174. Id. 175. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). 176. McAllen Grace, 764 F.3d 465. 177. Id. at 475-76. 178. United States v. Wilgus, 638 F.3d 1274, 1296 (10th Cir. 2011). 179. McAllen Grace, 764 F.3d at 480. 180. Hobby Lobby, 134 S. Ct. at 2782. 181. Id. 182. Id. 183. Id. 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 257 the presence of exceptions under the Eagle Protection Act demonstrated that the government was able to advance its compelling interests with the presence of exceptions. The court found that a less restrictive means for advancing its184 compelling interests existed by allowing the plaintiffs to possess eagle feathers for religious purposes.185 The Fifth Circuit further found that the alleged government harm was one of its own making because the Repository runs inefficiently. The court referred186 to Hobby Lobby to hold that the government “cannot infringe on [an individual’s] rights by creating and maintaining an inefficient system and then blaming those inefficiencies for its inability to accommodate [the individual].” The court187 noted that other circuits that have found the Eagle Protection Act does not violate RFRA “have done so in contexts not assessing the questions of whether the government’s own inefficiencies can be considered ‘the least restrictive means’ and whether other avenues that put the burden on plaintiffs (like collecting feathers from zoos) would be less restrictive.”188 The Fifth Circuit, however, failed to recognize the differences between the resources in Hobby Lobby and in M cAllen G race. Providing eagle feathers for189 non-FRT members is distinguishable from providing contraceptives for employees in Hobby Lobby. Eagle feathers are a lim ited resource. If more190 individuals are able to obtain eagle feathers from the eagle repository, there will be less eagle feathers. There is already a six-month waiting period to receive191 eagle feathers from the Repository. Any increase in the applications for eagle192 parts would make less available for federally recognized tribes. In Hobby Lobby, there was not a resource scarcity problem. If the exception to providing193 contraceptives was expanded to closely held businesses, it would not impose upon the government’s compelling interest of providing contraceptives cost-free because the government could also pay for them. However, if the permitting194 process under the Eagle Protection Act were expanded, then FRT members would be prevented or delayed in receiving their feathers. The burden would then shift195 from the non-FRT members to FRT members. This would directly impede the196 184. McAllen Grace, 764 F.3d at 477. 185. Id. 186. Id. at 479. 187. Id. 188. Id. 189. See Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014); McAllen Grace, 764 F.3d 465. 190. United States v. Wilgus, 638 F.3d 1274, 1291 (10th Cir. 2011). 191. Id. at 1294. 192. McAllen Grace, 764 F.3d at 470. 193. Hobby Lobby, 134 S. Ct. at 2782. 194. Id. 195. Wilgus, 638 F.3d at 1293. 196. See Kathryn E. Kovacs, Hobby Lobby and the Zero-Sum Game, 92 WASH. U. L. REV. 255, 267 (2014) (“Providing an exemption to people who are not members of federally recognized 258 INDIANA LAW REVIEW [Vol. 49:241 government’s compelling interest of fulfilling responsibilities to federally recognized tribes.197 This scarcity could also lead to a natural resources problem if individuals take it upon themselves to possess eagle feathers through illegal m eans, including poaching. A line must be drawn somewhere.198 C. Stage of Litigation An additional distinction between the two cases is the stage of litigation in which the courts decided the cases. The Tenth Circuit in Wilgus decided the199 issue after more than a decade of pending litigation. The Tenth Circuit reversed200 the district court’s decision that the E agle Protection Act was not the least restrictive means to advance the government’s compelling interests. This201 decision was based on a complete record after the hearings had taken place.202 The Fifth Circuit, on the other hand, decided M cAllen Grace on an appeal from a motion for summary judgment to the district court. In fact, the Fifth Circuit203 recognized the difference, noting that Wilgus involved “in most instances much better-developed records.” After the Fifth Circuit rejected the government’s204 arguments that the existing regulation of the Eagle Protection Act was the least restrictive means of furthering the government’s compelling interests, the court remanded the case for the government to establish a better record and evidence in support of its position. T he court stated that the government must provide205 actual evidence of how the eagles would be harmed and how many non-members wishing to possess eagle feathers for religious purposes would apply for a perm it. The government needed to prove, with specific evidence, that the206 alternatives would not advance the government’s compelling interests.207 Indian tribes would not simply alleviate their religious burden; instead, it would shift their religious burden to tribal members. RFRA requires the government to pursue its compelling interests using the means that are least restrictive of religious exercise; it does not require the government to shift those burdens from person to person. Thus, even after Hobby Lobby, challenges to the Eagle Act under RFRA should continue to fail.”). 197. Wilgus, 638 F.3d at 1293. 198. Id. at 1294. 199. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 472 (5th Cir. 2014); Wilgus, 638 F.3d 1274. 200. Wilgus, 638 F.3d at 1296. 201. Id. 202. Id. at 1277. 203. McAllen Grace, 764 F.3d at 472. 204. Id. at 479. 205. Id. at 480. 206. Id. at 478. 207. Id. at 479. 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 259 III. H OW A NALOGOUS IS THE FEDERALLY R ECOGNIZED TRIBE EXCEPTION IN THE EAGLE PROTECTION A CT TO A RELIGIOUS EXCEPTION? The Fifth Circuit in M cAllen Grace conflates religion and politics when determining the government’s com pelling interest in protecting the “religious purposes of Indian tribes.” The Fifth Circuit provided, “Given the fact that208 Congress did not define ‘Indian tribes’ in this particular section, and the fact that the Department’s approach has not been entirely uniform on this, we cannot definitively conclude that Congress intended to protect only federally recognized tribe members’ religious rights in this section.” FW S, however, did limit209 protection only to federally recognized tribes, and that interpretation is entitled to deference under Chevron.210 The Eagle Protection Act is clear that Congress’s purpose in including the phrase “for the religious purposes of Indian tribes” was to respect the quasi- sovereign federally recognized Indian tribes, not to recognize the religion of those who practice a “Native American religion.” Even if there is ambiguity in the211 Eagle Protection Act, the Fifth Circuit should have deferred to FW S’s interpretation under Chevron. This interpretation shows that there are no less restrictive means to further this compelling interest, contrary to the Fifth Circuit’s interpretation. A. The Fifth Circuit Should Have Performed a Chevron Analysis FW S has interpreted “for the religious purposes of Indian tribes” in the Eagle Protection Act to indicate for the religious purposes of federally recognized tribes. The Fifth Circuit, however, declined to accept FW S’s interpretation and212 instead recognized ambiguity in the statute. To qualify for Chevron deference,213 the court first must determine whether “Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.” If the rules do carry the force of law, the court should move through214 the Chevron analysis. The Supreme Court in Chevron provides the standard215 courts should apply when reviewing an agency’s interpretation of a statute it administers: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter . . . If, however, the court determ ines Congress has not 208. Id. at 473-76. 209. Id. at 473. 210. See Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837, 842-43 (1984). 211. S. REP. NO. 87-1986, at 6 (1962). 212. 50 C.F.R. § 22.22 (a)(5) (2014). 213. McAllen Grace, 764 F.3d at 473. 214. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). 215. Id. 260 INDIANA LAW REVIEW [Vol. 49:241 directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.216 1. FWS Regulations Carry the Force of Law.— The regulations promulgated in section 22.22 of title 50 of the Code of Federal Regulations carry the force of law. First, Congress delegated authority to the Secretary of the Interior to217 promulgate regulations determining whether exceptions should be made under the Eagle Protection Act. Pursuant to this authority, the Secretary of the Interior218 promulgated regulations regarding “the requirements concerning permits for Indian religious purposes.” The Supreme Court established that the “agency’s219 power to engage in . . . notice-and-comment rulemaking” indicates that the rules promulgated in that power carry the force of law. Thus, the Secretary of the220 Interior’s interpretation of the exception in 16 U.S.C . § 668a “for religious purposes of Indian tribes” carries the force of law because it was promulgated under notice-and-comm ent rulemaking. The interpretation is entitled to the221 Chevron deference.222 2. Congress Intended the Eagle Protection Act to Accommodate Federally Recognized Tribes.— Congress intended the exception “for the religious purposes of Indian tribes” to accommodate federally recognized tribes. To determine223 what the intent of Congress was in a statute, courts look to the statute’s plain meaning and its legislative history. A plain reading of the Eagle Protection Act224 shows that the Secretary of the Interior may permit the taking of eagle feathers “for the religious purposes of Indian tribes.” Unfortunately, the only instance225 the phrase “for the religious purposes of Indian tribes” appears in federal statutes is in the Eagle Protection Act. The Fifth Circuit found ambiguity in the phrase226 “Indian tribes.”227 However, a thorough evaluation of the phrase “Indian tribes” shows the intent of Congress was clear. First, courts should look at the plain meaning of the phrase “Indian tribe.” The phrase “Indian tribe” is not located in the M erriam-W ebster Dictionary. However, Black’s Legal Dictionary defines “Indian tribe” as: 216. Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837, 842-43 (1984). 217. 50 C.F.R. § 22.22. 218. 16 U.S.C. § 668(a) (2012). 219. 50 C.F.R. § 22.22. 220. Mead Corp., 533 U.S. at 227. 221. 50 C.F.R. § 22.22. 222. See Mead Corp., 533 U.S. at 226-27. 223. 16 U.S.C. § 668(a). 224. Id. 225. Id. 226. Id. 227. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 473 (5th Cir. 2014). 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 261 A group, band, nation, or other organized group of indigenous American people . . . that is recognized as eligible for the special programs and services provided by the U.S. government because of Indian status . . . [especially], any such group having a federally recognized governing body that carries out substantial governmental duties and powers over an area.228 Black’s Dictionary also includes a quote from W illiam C. Canby Jr. warning that “there is no all-purpose definition of an Indian tribe . . . Definitions must accordingly be used with extreme caution.” Other federal statutes have229 attempted to define “Indian tribe,” but have not been consistent in their definition. The definition in Black’s Legal Dictionary clearly shows that230 “Indian tribe” is best interpreted as a federally recognized tribe, so the Fifth Circuit should have deferred to FW S’s interpretation of the same. Even if the dictionary definition of “Indian tribe” is ambiguous, a look at the Constitution and legislative history further uncovers Congress’s intention. In the United States Constitution, the founders acknowledged federally recognized tribes as having a special status. The Tenth Circuit in Wilgus231 identified that “[a]long with Congress’s power to ‘regulate Commerce . . . with the Indian Tribes’ [in article I, section 8 of the Constitution] comes an obligation of trust to protect the rights and interests of federally recognized tribes and to promote self-determination.” T he founders recognized the sovereignty of232 Indian tribes similar to the sovereignty of foreign nations and states. Further,233 “Congress has ‘plenary power’ to legislate concerning the tribes, springing from both the Indian Commerce Clause of Article I of the Constitution, U.S. Const. art. I, § 8, cl.3, and the treaty power of [A rt II, § 2, cl.2].” Pursuant to this power234 and responsibility to tribes, the Supreme Court has held that C ongress has the power to “single out for special treatment a constituency of tribal Indians.”235 The legislative history of the exception further indicates that Congress intended to provide a political accommodation to federally recognized tribes rather than an accommodation for religious purposes. In amending the Eagle236 Protection Act to include the exception “for the religious purposes of Indian tribes,” the Committee on Commerce submitted a report indicating the need for the exception. The report recognized that eagle “feathers are an important part237 228. Indian Tribe, BLACK’S LAW DICTIONARY (10th ed. 2014). 229. Id. 230. 25 U.S.C. §§ 450b(e), 479a-1(a) (2014); 42 U.S.C. § 13743 (2014). 231. U.S. CONST. art. I, § 8, cl. 3; U.S. CONST. art. II, § 2, cl. 2. 232. United States v. Wilgus, 638 F.3d 1274, 1285 (10th Cir. 2011) (quoting United States v. Hardman, 297 F.3d 1116, 1128 (10th Cir. 2002) (en banc) (emphasis in original)). 233. U.S. CONST. art I, § 8, cl. 3. 234. Wilgus, 638 F.3d at 1286 (citing Morton v. Mancari, 417 U.S. 535, 551-52 (1974)). 235. Morton, 417 U.S. at 552. 236. See S. REP. NO. 87-1986, at 3-4. 237. Id. 262 INDIANA LAW REVIEW [Vol. 49:241 of Indian religious rituals.” This conclusion followed the submission of the238 Secretary of Interior’s agency report. The agency report indicated that “[t]he239 golden eagle is important in enabling many Indian tribes . . . to continue ancient customs and ceremonies that are of deep religious or emotional significant to them .” The report focused on providing accommodation for American Indian240 tribes instead of providing a religious exception. The report only mentioned the241 importance of eagle feathers in religious practices of American Indian tribes, even though other religious traditions use eagle feathers in their religious practices.242 By excluding from the conversation other religious traditions, Congress intended to provide a political accommodation for American Indian tribes rather than a religious exception. Because Congress’s intent to provide an exception only for federally recognized tribes is clear, the Fifth Circuit should have accepted the government’s argument. 3. The Court Should Defer to FWS’s Implementation of the Eagle Protection Act.— Even if the Fifth Circuit finds there is ambiguity in the exception, FW S is entitled to deference. The Fifth Circuit should accept FW S’s interpretation of the exception for federally recognized tribes because FW S’s interpretation is reasonable. Here, FW S defined “Indian tribes” to indicate those tribes243 “federally recognized under the Federally Recognized Tribal List Act of 1994, 25 U.S.C. 479a-1.” FW S interprets this exception as primarily a political244 accommodation for federally recognized tribes. FW S’s interpretation is245 reasonable in light of the federal government’s history of a unique government- to-government relationship with federally recognized Indian tribes and the potential Establishment Clause problems had Congress instead intended a religious exception. As discussed in the first step, FW S’s interpretation is reasonable in light of the Constitution’s special status afforded to Indian tribes. The United States246 Supreme Court has further recognized the special trust relationship between the federal government and Indian tribes: “Under a humane and self-imposed policy which has found expression in many acts of Congress and numerous decisions of this Court, [the federal government] has charged itself with moral obligations of the highest responsibility and trust.”247 Courts also find historical precedent important when determining whether an 238. Id. 239. Id. at 5-7. 240. Id. at 6. 241. Id. at 5-7. 242. United States v. Wilgus, 638 F.3d 1274, 1294 (10th Cir. 2011) (explaining that eagle feathers are also important to some Afro-Caribbean religions). 243. Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837, 842-43 (1984). 244. 50 C.F.R. § 22.22 (a)(5) (2014). 245. Kovacs, supra note 196, at 106. 246. U.S. CONST. art. I, § 8, cl .3; U.S. CONST. art. II, § 2, cl. 2. 247. Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942). 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 263 agency’s interpretation of a statute is reasonable. Presidents of the United248 States have recognized the importance of the federal governm ent’s relationship with federally recognized tribes and how the exception in the Eagle Protection Act provides an accommodation for political purposes. In a memorandum sent249 to the heads of executive departments and agencies, President Clinton stressed the importance of recognizing the governments of federally recognized tribes: Today, as part of an historic meeting with all federally recognized tribal governments, I am directing executive departments and agencies (hereafter collectively 'agency' or 'agencies') to work cooperatively with tribal governments and to reexamine broadly their practices and procedures to seek opportunities to accommodate Native American religious practices to the fullest extent under the law.250 President Clinton recognized a duty to federally recognized tribal governments, not necessarily an accommodation for the religious practices of all “American Indian religions.” Thus, it is permissible for FW S to interpret the Eagle251 Protection Act as providing exceptions only to federally recognized tribes rather than providing exceptions for religious purposes of individuals not members of federally recognized tribes. In his Special M essage on Indian Affairs, President Nixon also recognized the important relationship between the federal government and federally recognized Indian tribes: The special relationship between Indians and the Federal government is the result of solemn obligations which have been entered into by the United States Government . . . [T]he special relationship . . . continues to carry immense moral and legal force. To terminate this relationship would be no more appropriate than to terminate the citizenship rights of any other American.252 President Nixon recognized the importance of accommodating federally recognized tribes as an obligation of the federal government.253 Congress’s intent for the exception to be more like a political accommodation for federally recognized tribes rather than a religious exception also avoids potential Establishment Clause problems that would arise if it were a religious exception. The Establishment Clause of the First Am endment to the254 248. See Ghaleb Nassar Al-Bihani v. Obama, 619 F.3d 1, 51 (D.C. Cir. 2010). 249. Policy Concerning Distribution of Eagle Feathers for Native American Religious Purposes, 59 Fed. Reg. 22,953 (Apr. 29, 1994). 250. Id. 251. Id. 252. Special Message to the Congress on Indian Affairs, 1 PUB. PAPERS 213 (July 8, 1970), available at http://www.presidency.ucsb.edu/ws/?pid=2573 [http://perma.cc/K6YU-R8NC]. 253. Id. 254. United States v. Wilgus, 638 F.3d 1274, 1287-88 (10th Cir. 2011); Kovacs, supra note 196, at 108-11. https://advance.lexis.com/document/?pdmfid=1000516&crid=c2a4c08b-7c5b-4330-bab1-6 264 INDIANA LAW REVIEW [Vol. 49:241 Constitution directs that “Congress shall make no law respecting an establishment of religion.” Had Congress intended to protect generally the practices and255 individuals of all “American Indian religions,” it would be favoring the “American Indian religions” over other religions. The Supreme Court has established that the government may not favor one religion over another.256 Surely, Congress did not intend to violate the Establishment Clause when drafting this exception. The Tenth Circuit in Wilgus warned against adopting an interpretation that favored a more general “protection of Native American religion.” The court warned, “[i]f [the court] were to hold that the federal257 government has a compelling interest in fostering Native American culture generally by providing special exceptions to criminal laws for Native American religious practices, we are concerned this might run up against [the Establishment Clause].”258 The recognition of federally recognized tribes is not the same as the recognition of a specific religion. The Supreme Court has established that259 federally recognized tribes are political entities rather than religious or racial entities. Federally recognized tribes are distinct from religions. Had the260 261 exception in the Eagle Protection Act provided an exception for the religious purposes of the Roman Catholic Church, it would clearly run afoul of the Establishment Clause. Instead, federally recognized tribes are political and Congress is permitted to accommodate them based on their government-to- government relationship. It is thus, at the least, a permissible interpretation262 under the Eagle Protection Act for FW S to provide a political accommodation for federally recognized tribes rather than an accommodation for one religion.263 C ONCLUSION The Supreme Court in Hobby Lobby “clarified how heavy the burden is on the [government] to demonstrate that the regulatory framework is the least restrictive means” in a RFRA analysis. Yet the Eagle Protection Act should still264 survive RFRA scrutiny post-Hobby Lobby. Under Hobby Lobby, the proposed alternatives furthered the government’s compelling interests. The alternatives proposed to the Eagle Protection Act, on265 255. U.S. CONST. amend. I. 256. McCreary Cnty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005). 257. Wilgus, 638 F.3d at 1287. 258. Id. 259. See Morton v. Mancari, 417 U.S. 535, 554 (1974). 260. Id. 261. Id. 262. Wilgus, 638 F.3d at 1286-88. 263. Id. at 1287-88; see Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, 467 U.S. 837, 842- 43 (1984). 264. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 479 (5th Cir. 2014). 265. Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2782 (2014). 2015] FROM BIRTH CONTROL TO EAGLE FEATHERS 265 the other hand, do not advance the government’s compelling interests of protecting eagles and fulfilling responsibilities to federally recognized tribes.266 By expanding the permitting process to all religious people, there would be less feathers available to the federally recognized tribes. Unlike the interest in267 Hobby Lobby, eagle feathers are a limited resource. Any increase in permits268 would fail to advance the government’s compelling interest of fulfilling responsibilities to federally recognized tribes.269 The Fifth C ircuit in M cAllen Grace recognized the Eagle Protection Act as simply providing feathers to tribe members for individual religious beliefs.270 However, the exception for Indian tribes does much more than provide a commodity for religious practices. The exception instead demonstrates the federal government’s duty to the quasi-sovereign federally recognized tribes. The271 federal government recognized the special status of federally recognized tribes as sovereign states in the Eagle Protection Act.272 By failing to recognize this important relationship between the federal government and federally recognized tribes, the Fifth Circuit found a less restrictive means of furthering what it saw as the government’s compelling interest. If the Fifth C ircuit, however, properly deferred under Chevron to273 FW S’s interpretation of providing an exception to recognize the special status of tribes as sovereign states, then the Fifth Circuit would have been unable to find a less restrictive means of furthering this special political and cultural exception. The Fifth Circuit should have recognized the exceptions provided for in the Eagle Protection Act were based on political motivations and thus different than the exceptions provided for in the ACA that were based on individual religious beliefs. These distinctions show that the emergence of Hobby Lobby should not alter the court’s examination of the Eagle Protection Act under RFRA. 266. Wilgus, 638 F.3d at 1292-95. 267. Id. at 1293. 268. Kovacs, supra note 196, at 267. 269. Id. 270. McAllen Grace Brethren Church v. Salazar, 764 F.3d 465, 478 (5th Cir. 2014). 271. S. REP. NO. 87-1986, at 5-7. 272. Morton v. Mancari, 417 U.S. 535, 552 (1974). 273. See McAllen Grace, 764 F.3d 465.