There has been some blog attention (see, e.g., here) recently to a pair of U.S. District Court rulings that the federal Fish and Wildlife Service did not meet legal standards when it limited permission to possess eagle feathers for religious purposes to members of recognized Indian tribes only. (U.S. v. Wilgus & U.S. v. Hardman).

There has been less attention to the constitutionality of the government eagle-feather restrictions.

If you believe that the Constitution, like virtually every other legal document, should construed according to its original meaning, you might well question whether the federal government has power to ban possession of eagle feathers at all. The Constitution gives Congress power to regulate interstate commerce, but the Founding-Era record makes it clear that this did not authorize flat bans on particular kinds of property. So to justify such a ban under the Commerce Power, the government must rely on the very strained interpretations of that power adopted by the modern Supreme Court.

Another possible basis for a federal ban are statutes adopted under migratory bird treaties. The notion that treaties allow Congress to adopt laws outside its enumerated powers was adopted by the Supreme Court in the 20^th century. But it, too, has been challenged recently by a top constitutional scholar writing in the nation’s leading law journal.

Still more importantly, the First Amendment prohibits the federal government from creating an “establishment of religion.” And both under the original meaning of the First Amendment and under modern Supreme Court interpretations, the federal government may not favor some religions over others. If a statute directly hampers religious exercise, the government may exempt religious adherents. But the government cannot exempt some of the hampered religions and refuse to exempt others.

While I can’t claim to have researched the subject exhaustively, a rule that limits an exception to Indians in recognized tribes — thereby excluding religions of non-recognized tribes as well as non-Indian religions — certainly looks like a constitutional violation to me.

(Rob Natelson, a leading scholar of the American Founding, teaches Constitutional Law and First Amendment Law at the University of Montana; his opinions, of course, are his own.)