ND Law School Alum Counsels in Appellate Court Religious Freedom Case

Author: Denise Wager

Marisa Salazar, NDLS ‘00, was recently involved in an appellate court case victory for Native Americans and their right to religious freedom. Salazar, counsel for the Civil Rights Legal Defense Fund, represented Robert Soto, a member of the Lipan Apache Tribe, who had sought to use eagle feathers in a tribal religious ritual.  Understanding golden and bald eagles are essential for the religious practices of many Native American tribes, Congress amended the Eagle Protection Act in 1962, adding an exception "for the religious practices of Indian tribes." However, since Soto’s tribe was not a “federally recognized tribe” as understood by the Eagle Protection Act, he was not entitled to use of the feathers.   Soto and several other plaintiffs sued claiming that prohibiting them from using the feathers violated their rights under the First Amendment free exercise clause and Religious Freedom Restoration Act.

The case was eventually brought to the 5th Circuit appellate court who ruled that the Interior Department was violating the religious freedom of Native Americans by prohibiting those who are not members of federally recognized tribes from possessing eagle feathers. The court found the government had not carried out its burden of showing its regulations are the least restrictive means of protecting what it claimed were its compelling interests: protecting eagles and fulfilling its responsibility to federally recognized tribes. Noting that the 1962 Amendment to the Eagle Protection Act "did not define 'Indian Tribes,'" the court said that they "cannot definitively conclude that Congress intended to protect only federally recognized tribe members' religious rights in this section."