NALSA Moot Court Team Application Materials 2010-11
Due: Thursday, September 30, 2010 at 5:00 p.m.
Email to Kyle Kolb, kyle.kolb@gmail.com
Instructions:
Thanks for your interest in NALSA Moot Court! Please complete the following short statement of interest (Part I) and a
short argument introduction (Part II) based on the included closed research.
Please email your materials to kyle.kolb@gmail.com by 5:00 p.m. on Thursday, September 30, and include your name
and contact info.
Part I – Statement of Interest
(one page, double spaced)
Please describe why you are interested in joining the NALSA Moot Court team and what attributes you feel you can
bring to the team. In particular, please describe any relevant debate or moot court experience, as well as any
background in Native American or indigenous issues.
Part II – Short Argument Introduction
(one to three pages, double spaced)
Please read the included problem and case law. DO NOT DO ANY OUTSIDE RESEARCH. Choose to represent
either the appellant (Isaac Grey Eagle) or appellee (United States), and write a short introduction to the argument you
might give on their behalf. Though other issues are mentioned in the record, the only question you should be addressing
is whether the government’s policy of granting eagle feather permits to members of federally recognized tribes
promotes religion in contravention of the establishment clause of the First Amendment. Your introduction can include
legal points from the case law, factual distinctions, policy arguments, or anything else you think may support your
position. Be sure to treat this as an introduction - there is no need to delve into fine doctrinal points, etc. Simply
present an introduction which describes the best argument you can make.
1
National NALSA Moot Court Competition Problem
[All sources appear as endnotes at the end of the problem.]
In October 2007, pursuant to a federal grand jury indictment, FBI agents arrested Frances Blue Coat, Isaac Grey Eagle
and Gene Smith for the illegal possession of eagle feathers in violation of the Bald and Golden Eagle Act, 16 U.S.C. §
668(a)1 and the Migratory Bird Treaty Act, 16 U.S.C. § 707.2 At the time of their arrest, all three individuals were in
physical possession of eagle feathers and the eagle feathers were thus properly seized incident to their lawful arrest. At
the time of their arrest and at all subsequent times, neither the bald eagle nor golden eagle was on the Endangered
Species List.3
The arrests took place on the Red River Sioux Reservation, which is located in the State of New Dakota. Ms. Blue Coat
is an enrolled member of the Red River Sioux Tribe, which is a federally recognized Tribe. Ms. Blue Coat is a long‐time
practitioner within the traditional religion of the Red River Sioux people and there is a stipulated recognition that her
possession of eagle feathers was for the sole purpose of religious expression within the traditional religion of the Red
River Sioux Tribe.
Mr. Grey Eagle is a full‐blooded (four‐fourths, 4/4) Red River Sioux Indian, but he is not a member of the Red River
Sioux (or any other) Tribe. He was born in Paris, France when his full‐blooded parents (who were members of the Red
River Sioux Tribe),4 Isadore and Kate Grey Eagle, were guest artists as traditional Sioux singers and dancers at the Paris
Repertory Theater of the Arts. The Red River Sioux Tribal Constitution in force when Mr. Grey Eagle was born in 1964
required anyone seeking membership in the Tribe to be at least one‐fourth (1/4) Red River Sioux blood and to have been
born on the Reservation or taken up residence there within three years of his or her birth. Isaac and his parents did not
return to the reservation until 1969. Thus Mr. Grey Eagle was not eligible for membership in the Tribe at that time.
Isaac has resided continuously on the Reservation since 1969. The Tribe also amended its Constitution in 1980 and
removed the residency requirement as a condition of enrollment. However that amendment was not retroactive and it is
therefore true that Mr. Grey Eagle has never been eligible for enrollment. As with Ms. Blue Coat, there is a stipulated
recognition that Mr. Grey Eagle’s possession of eagle feathers was for the sole purpose of religious expression within
the traditional religion of the Red River Sioux People. At the request of various Tribal Chairmen over the years, Mr.
Grey Eagle often offered a traditional Red River Sioux prayer to bless important proceedings of the Red River Sioux
Tribal Council.
Gene Smith is a non‐Indian, who is a teacher and long‐time resident of the Reservation. He is a good friend of both Ms.
Blue Coat and Mr. Grey Eagle. While he has attended many traditional religious ceremonies on the Red River Sioux
Reservation, Mr. Smith does not consider himself a practitioner of the Red River Sioux Religion. It is stipulated that the
eagle feathers in his possession were gifts from the families of Ms. Blue Coat and Mr. Grey Eagle to honor his
contribution to the education of their children.
Of these three individuals, only one, Frances Blue Coat was eligible to apply for a federal permit to possess eagle
feathers for religious purposes. These requirements, which are set out at 50 C.F.R. § 22.22, 5 require, inter alia, that any
applicant be a member of a federally recognized tribe. Ms. Blue Coat never applied for a permit. Despite his apparent
ineligibility, Mr. Grey Eagle did apply for a permit with the federal Migratory Bird Permit Office sometime before his
arrest in 2007, but has never received a decision concerning his application. Mr. Smith never applied for a permit, since
he understood as a non‐ Indian that he was not eligible to receive one.
All three defendants were prosecuted together in a bench trial before the Honorable Judge Jane Roubideaux. Both Ms.
Blue Coat and Mr. Grey Eagle asserted defenses relative to an improper infringement on their First Amendment right to
the free exercise of religion.6 Mr. Grey Eagle also asserted an equal protection argument, contended that the Religious
Freedom Restoration Act barred his prosecution and claimed that the permit system violated the Establishment Clause.
Mr. Smith argued that he had done no wrong, but merely accepted with gratitude a gift that honored him in a culturally
significant way.
Judge Roubideaux found all three defendants guilty as charged. The only portion of her decision that was made part of
the record was her finding that the federal government had a legitimate and compelling interest to protect the existence
of bald and golden eagles, as unique exemplars of our national existence.
2
All three defendants have appealed to the XI Circuit Court of Appeals. 7 Ms. Blue Coat’s appeal was dismissed on the
motion of the United States for her failure to apply for a permit under 50 C.F.R. § 22.22 and thus not exhausting her
administrative remedies. Mr. Smith’s appeal was likewise dismissed on the motion of the United States for failure to
assert any free exercise claim as a matter of law. Therefore, the sole appeal that remains before the circuit court is that
of Mr. Isaac Grey Eagle.
NOTES:
1. 16 U.S.C. § 668 states: (a) Prohibited acts; criminal penalties
Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do so as
provided in this subchapter, shall knowingly, or with wanton disregard for the consequences of his act 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 American eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof of the
foregoing eagles, or whoever violates any permit or regulation issued pursuant to this subchapter, shall be fined not
more than $5,000 or imprisoned not more than one year or both: Provided, That in the case of a second or subsequent
conviction for a violation of this section committed after October 23, 1972, such person shall be fined not more than
$10,000 or imprisoned not more than two years, or both: Provided further, That the commission of each taking or other
act prohibited by this section with respect to a bald or golden eagle shall constitute a separate violation of this section:
Provided further, That one‐half of any such fine, but not to exceed $2,500, shall be paid to the person or persons giving
information which leads to conviction: Provided further, That nothing herein shall be construed to prohibit possession
or transportation of any bald eagle, alive or dead, or any part, nest, or egg thereof, lawfully taken prior to June 8, 1940,
and that nothing herein shall be construed to prohibit possession or transportation of any golden eagle, alive or dead, or
any part, nest, or egg thereof, lawfully taken prior to the addition to this subchapter of the provisions relating to
preservation of the golden eagle.
2. 16 U.S.C. § 707 states:
(a) Except as otherwise provided in this section, any person, association, partnership, or corporation who shall violate
any provisions of said conventions or of this subchapter, or who shall violate or fail to comply with any regulation made
pursuant to this subchapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not
more than $15,000 or be imprisoned not more than six months, or both.
(b) Whoever, in violation of this subchapter, shall knowingly— (1) take by any manner whatsoever any migratory bird
with intent to sell, offer to sell, barter or offer to barter such bird, or (2) sell, offer for sale, barter or offer to barter, any
migratory bird shall be guilty of a felony and shall be fined not more than $2,000 or imprisoned not more than two
years, or both.
(c) Whoever violates section 704 (b)(2) of this title shall be fined under title 18, imprisoned not more than 1 year, or
both.
(d) All guns, traps, nets and other equipment, vessels, vehicles, and other means of transportation used by any person
when engaged in pursuing, hunting, taking, trapping, ensnaring, capturing, killing, or attempting to take, capture, or kill
any migratory bird in violation of this subchapter with the intent to offer for sale, or sell, or offer for barter, or barter
such bird in violation of this subchapter shall be forfeited to the United States and may be seized and held pending the
prosecution of any person arrested for violating this subchapter and upon conviction for such violation, such forfeiture
shall be adjudicated as a penalty in addition to any other provided for violation of this subchapter. Such forfeited
property shall be disposed of and accounted for by, and under the authority of, the Secretary of the Interior.
See also 16 U.S.C. § 703:
(a) In general
Unless and except as permitted by regulations made as hereinafter provided in this subchapter, it shall be unlawful at
any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess,
offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to
be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be
carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or egg of any such
bird, or any product, whether or not manufactured, which consists, or is composed in whole or in part, of any such bird
or any part, nest, or egg thereof, included in the terms of the conventions between the United States and Great Britain
for the protection of migratory birds concluded August 16, 1916 (39 Stat. 1702), the United States and the United
Mexican States for the protection of migratory birds and game mammals concluded February 7, 1936, the United States
and the Government of Japan for the protection of migratory birds and birds in danger of extinction, and their
3
environment concluded March 4, 1972 and the convention between the United States and the Union of Soviet Socialist
Republics for the conservation of migratory birds and their environments concluded November 19, 1976.
Note also that both bald and golden eagles are considered ‘migratory birds’ under the relevant statute and treaty
convention provisions.
3. 16 U.S.C. § 1531 et seq. For a list of endangered and threatened species, see 50 C.F.R. § 17.11.
4. Mr. Grey Eagle’s parents passed away in 2004 and 2005.
5. 50 C.F.R. § 22.22 states:
What are the requirements concerning permits for Indian religious purposes?
We will issue a permit only to members of Indian entities recognized and eligible to receive service from the United
States Bureau of Indian Affairs listed under 25 U.S.C. 479a‐1 engaged in religious activities who satisfy all the issuance
criteria of this section. We may, under the provisions of this section, issue a permit authorizing the taking, possession,
and transportation within the United States, or transportation into or out of the United States of lawfully acquired bald
eagles or golden eagles, or their parts, nests, or eggs for Indian religious use. We will not issue a permit under this
section that authorizes the transportation into or out of the United States of any live bald or golden eagles, or any live
eggs of these birds.
(a) How do I apply if I want a permit for Indian religious purposes? You must submit applications for permits to take,
possess, transport within the United States, or transport into or out of the United States lawfully acquired bald or golden
eagles, or their parts, nests, or eggs for Indian religious use to the appropriate Regional Director. Attention: Migratory
Bird Permit Office. You can find addresses for the appropriate Regional Directors in 50 CFR 2.2. If you are applying
for a permit to transport into or out of the United States, your application must contain all the information necessary for
the issuance of a CITES permit. You must comply with all the requirements in part 23 of this subchapter before
international travel. Your application for any permit under this section must also contain the information required under
this section. §13.12(a) of this subchapter, and the following information:
(1) Species and number of eagles or feathers proposed to be taken, or acquired by gift or inheritance.
(2) State and local area where the taking is proposed to be done, or from whom acquired.
(3) Name of tribe with which applicant is associated.
(4) Name of tribal religious ceremony(ies) for which required.
(5) You must attach a certification of enrollment in an Indian tribe that is federally recognized under the Federally
Recognized Tribal List Act of 1994, 25 U.S.C. 479a‐1, 108 Stat. 4791 (1994). The certificate must be signed by the
tribal official who is authorized to certify that an individual is a duly enrolled member of that tribe, and must include the
official title of that certifying official.
(b) What are the permit conditions? In addition to the general conditions in part 13 of this subchapter B, permits to take,
possess, transport within the United States, or transport into or out of the United States bald or golden eagles, or their
parts, nests or eggs for Indian religious use are subject to the following conditions:
(1) Bald or gold eagles or their parts possessed under permits issued pursuant to this section are not transferable, except
such birds or their parts may be handed down from generation to generation or from one Indian to another in accordance
with tribal or religious customs; and
(2) You must submit reports or inventories, including photographs, of eagle feathers or parts on hand as required by the
issuing office.
(c) How do we evaluate your application for a permit? We will conduct an investigation and will only issue a permit to
take, possess, transport within the United States, or transport into or out of the United States bald or golden eagles, or
their parts, nests or eggs for Indian religious use when we determine that the taking, possession, or transportation is
compatible with the preservation of the bald and golden eagle. In making a determination, we will consider, among
other criteria, the following:
(1) The direct or indirect effect which issuing such permit would be likely to have upon the wild populations of bald or
golden eagles; and
(2) Whether the applicant is an Indian who is authorized to participate in bona fide tribal religious ceremonies.
(d) How long are the permits valid? We are authorized to amend, suspend, or revoke any permit that is issued under this
section (see §§ 13.23, 13.27, and 13.28 of this subchapter.
(1) A permit issued to you that authorizes you to take bald or golden eagles will be valid during the period specified on
the face of the permit, but will not be longer than 1 year from the date it is issued.
(2) A permit issued to you that authorizes you to transport and possess bald or golden eagles or their parts, nests, or eggs
4
within the United States will be valid for your lifetime.
(3) A permit authorizing you to transport dead bald eagles or golden eagles, or their parts, nests, or dead eggs into or out
of the United States can be used for multiple trips to or from the United States, but no trip can be longer than 180 days.
The permit will be valid during the period specified on the face of the permit, not to exceed 3 years from the date it is
issued.
6. The First Amendment provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances.
7. All parties concede that the Fort Laramie Treaty of 1868 (to which the Red River Sioux were a signatory) was
abrogated by both the Bald and Golden Eagle Act and the Migratory Bird Treaty Act and thus provides no defense or
applicable issue on appeal. See, e.g. United States v. Dion, 476 U.S. 734 (1986).
5
PEYOTE WAY CHURCH OF GOD, INC., Plaintiff-Appellant, v. Richard THORNBURGH,
Attorney General of the United States, et al., Defendants-Appellees
No. 88-7039
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
922 F.2d 1210; 1991 U.S. App. LEXIS 1563
February 6, 1991
SUBSEQUENT HISTORY:
As Corrected.
PRIOR HISTORY: [**1] Appeal from the United States District Court for the Northern District of Texas. No.
CA3-82-0778-T; Robert B. Maloney, Judge.
DISPOSITION:
Affirmed.
JUDGES: Clark, Chief Judge, Reavley and King, Circuit Judges. Clark, Chief Judge, dissenting.
OPINION BY: REAVLEY
OPINION
[*1212] REAVLEY, Circuit Judge
The Peyote Way Church of God, Inc. (Peyote Way) sued for a declaratory judgment that federal and Texas laws
prohibiting peyote possession by all except members of the Native American Church of North America (NAC) are
unconstitutional. Peyote Way also requested that the district court enjoin the defendants, the Attorneys General of Texas
and the United States, from enforcing the peyote prohibition laws against it or its members. The district court upheld the
constitutionality of the federal and state laws challenged by Peyote Way. On appeal, Peyote Way challenges the district
court's legal conclusions and the sufficiency of the court's fact findings to support those conclusions. We affirm the
district court's dismissal of Peyote Way's constitutional claims on their merits.
I. BACKGROUND
[Peyote Way Church challenges the constitutionality of federal and Texas statutes which criminalize the distribution and
possession of peyote, but exempt bona fide religious use of peyote by Native American Church members from such
criminalization. The majority of Peyote Way's approximately 150 members are not of Native American descent. Peyote
Way has promulgated detailed bylaws concerning its members' access to peyote during its religious ceremonies, and
Peyote Way subscribes to many tenets similar to those of the NAC.
The district court found that Peyote Way uses peyote in connection with religion, and sincerely believes that the use of
peyote for other than religious purposes is sacrilegious. The court also found that the clear intent of Congress was to
exempt the nondrug religious use of peyote by members of the Native American Church, not to exempt the use of
peyote by other religious groups, no matter how sincere these other religious groups are in their beliefs. Still, the court
rejected Peyote Way's equal protection and establishment clause challenges to the NAC exemptions.]
II. DISCUSSION
A. FREE EXERCISE CLAUSE
[omitted]
6
B. EQUALITY WITH THE NATIVE AMERICAN CHURCH
Under the heading "Special Exempt Persons," a Drug Enforcement Administration regulation provides:
ß 1307.31 Native American Church. The listing of peyote as a controlled substance [under federal law] does
not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church. . . .
21 C.F.R. ß 1307.31 (1990) citing as authority 21 U.S.C. ßß 821, 822(d), 871(b). The Commissioner of Food and Drugs
first promulgated what is now section 1307.31 in March 1966 with apparent congressional approval. 31 Fed.Reg. 4679
(1966); compare United States v. Warner, 595 F. Supp. 595, 598 (D.N.D.1984) (Congress intended [**7] to exempt
religious use of peyote only by NAC members) with Native American Church of New York v. United States, 468 F.
Supp. 1247, 1249, 1251 (S.D.N.Y.1979) (Congress meant to exempt all bona fide religious peyote use), aff'd without op.,
633 F.2d 205 (2d Cir. 1980). Texas law contains a similar exemption for the NAC:
the provisions of [the] chapter relating to the possession and distribution of peyote do not apply to the use of
peyote by a member of the Native American Church in bona fide religious ceremonies of the church. . . . An
exemption granted to a member of the Native American Church under this section does not apply to a member
with less than 25 percent Indian blood.
TEX. HEALTH & SAFETY CODE ANN. ß 481.111(a) (Vernon 1991).
These laws unambiguously exempt only NAC members from federal and Texas statutes prohibiting peyote possession.
Peyote Way argues that the Constitution requires us to accord its members the same exemption. [**8]
1. The Federal NAC Exemption
a. Equal Protection
The equal protection principle, applicable to federal regulations through the due process clause of the Constitution's
Fifth Amendment, mandates similar treatment under the law for those similarly situated. Bolling v. Sharpe, 347 U.S.
497, 498-99, 74 S. Ct. 693, 694, 98 L. Ed. 884 (1954). Section 1307.31 accords NAC members different treatment than
other members of our society. Thus, whether section 1307.31 violates the equal protection principle depends on whether
NAC members are similarly situated to other members of our society.
In Morton v. Mancari, 417 U.S. 535, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974), the Supreme Court rejected an equal
protection challenge to a statutory employment preference for Native Americans in the Bureau of Indian Affairs (BIA).
The Court based its decision on: (1) the historically unique guardian-ward trust relationship of the federal government
with quasi-sovereign Native American tribes; (2) Congress' plenary power to "regulate Commerce . . . with the Indian
Tribes" under the Constitution's Article I, section 8; (3) the federal government's Article II, section 2 treaty power; and
(4) a line [**9] of cases in which the Court has upheld legislation preferentially treating Native Americans who are
tribal members or live on or near a reservation. Id. 94 S. Ct. at 2483, 2485.
The Court applies strict scrutiny to any racial classification, requiring the government to show that such a classification
is the least restrictive means of achieving a [*1215] compelling governmental objective. See, e.g., Hunter v. Erickson,
393 U.S. 385, 391-92, 89 S. Ct. 557, 561, 21 L. Ed. 2d 616 (1969). But the Morton Court characterized the BIA
employment preference as a political rather than racial classification because the BIA regulations implementing the
preference limit eligibility to members of federally recognized tribes who have at least 25% Native American blood. 94
S. Ct. at 2484 n. 24. Thus, only the constituencies of the quasi-sovereign nations over whom the federal government
considers itself guardian enjoy the preference. Id. And "as long as the special treatment can be tied rationally to the
fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed." 94 S.
Ct. at 2485.
The district court in this case followed Warner, 595 F. Supp. at 600 [**10] in holding that the federal NAC exemption
effects a political classification. Peyote Way contends that section 1307.31 effects a racial classification.
On its face, section 1307.31 classifies people according to the single criterion of whether they are NAC members.
Similarly, the statute at issue in Morton, 25 U.S.C. ß 472, accords its hiring preference to "Indians" without requiring
tribal affiliation. Only the BIA regulations under ß 472 contain the 25% Native American ancestry and tribal affiliation
requisites relied on by the Court. Morton, 94 S. Ct. at 2484 n. 24. We must look to the evidence to determine whether
7
NAC membership presupposes tribal affiliation and Native American ancestry, and thus effects a political classification
under Morton.
[**11] During his tenure as NAC National Chairman, Emerson Jackson testified that the NAC is made up of
approximately 36 chapters, each separately incorporated by a different tribe and that all NAC members are of 25%
Native American ancestry. The record contains articles of incorporation filed by the Native American Church of
Navajoland, Inc. and a "Certificate of Authorization" to transport peyote that requires a tribal enrollment number,
corroborating this testimony. See also Kennedy v. Bureau of Narcotics and Dangerous Drugs, 459 F.2d 415, 416, 418
(9th Cir. 1972) ("the Native American Church is a religious organization of American Indians drawn from a variety of
western tribes;" "membership in the Native American Church is limited to those of at least one-quarter Indian blood"),
cert. denied, 409 U.S. 1115, 93 S. Ct. 901, 34 L. Ed. 2d 699 (1973). Jackson repeatedly testified that tribal membership
and 25% Native American ancestry are prerequisites to NAC membership and although Peyote Way's counsel crossexamined him, Peyote Way offers nothing to impeach his testimony.
In arguing that the NAC admits spouses of Native Americans regardless of ancestry, Peyote Way cites the Articles
[**12] of Incorporation of the Native American Church of Navajoland:
Membership in this Corporation shall be limited to persons with at least twenty-five percent Indian blood;
provided, that any non-Indian spouse of a member is eligible for membership. Other qualifications for
membership may be set out in the Bylaws.
Art. VIII, ß 2 (emphasis added). But Jackson testified that "in our bylaws, we stipulate that they be 25 percent Indian."
See also Warner, 595 F. Supp. at 601-02 ("the government has filed the by-laws of the Native American Church of
North America, which require members to have at least one-quarter Native American blood").
Peyote Way also cites Trujillo's testimony that he was an NAC member without ever having a tribal enrollment number
and that during his NAC membership he saw many who are not Native Americans participate [*1216] in NAC rites
and vote for NAC leadership. But Trujillo left the NAC before or during 1966, and peyote possession was not a federal
offense until May 1966. See 79 Stat. 226 ß 11; 31 Fed.Reg. 4679-80 (1966). Trujillo himself testified that in 1964 the
NAC's leadership accepted and almost immediately thereafter rejected an "All-Race Group" within the [**13] NAC.
Trujillo's testimony does not establish that the NAC has admitted members who are not tribal Native Americans since
the federal government outlawed peyote possession and promulgated the NAC exemption.
We hold that the record conclusively demonstrates that NAC membership is limited to Native American members of
federally recognized tribes who have at least 25% Native American ancestry, and therefore represents a political
classification. Thus, under Morton, we must now consider whether the preference given the NAC "can be tied rationally
to the fulfillment of Congress' unique obligation toward the Indians." 94 S. Ct. at 2485. "As [the Supreme Court has]
repeatedly emphasized, Congress' authority over Indian matters is extraordinarily broad." Santa Clara Pueblo v.
Martinez, 436 U.S. 49, 72, 98 S. Ct. 1670, 1684, 56 L. Ed. 2d 106 (1978).
We hold that the federal NAC exemption allowing tribal Native Americans to continue their centuries-old tradition of
peyote use is rationally related to the legitimate governmental objective of preserving Native American culture. Such
preservation is fundamental to the federal government's trust relationship with tribal Native Americans. [**14] Under
Morton, Peyote Way's members are not similarly situated to those of the NAC for purposes of cultural preservation and
thus, the federal government may exempt NAC members from statutes prohibiting peyote possession without extending
the exemption to Peyote Way's membership.
b. Establishment Clause
Peyote [**15] Way also contends that the federal NAC exemption contravenes the First Amendment's admonition that
"Congress shall make no law respecting an establishment of religion." The Supreme Court has "repeatedly emphasized
[its] unwillingness to be confined to any single test or criterion in [the] sensitive area" of establishment clause
jurisprudence. Lynch v. Donnelly, 465 U.S. 668, 679, 104 S. Ct. 1355, 1362, 79 L. Ed. 2d 604 (1984).
In Larson v. Valente, 456 U.S. 228, 244-51, 102 S. Ct. 1673, 1683-87, 72 L. Ed. 2d 33 (1982) the Court struck down a
Minnesota statute imposing registration and reporting requirements on religious organizations that solicit more than
50% of their income from non-members because the statute represented a denominational preference that was
8
unnecessary to achieve a compelling state interest. Yet in Marsh v. Chambers, 463 U.S. 783, 795, 103 S. Ct. 3330,
3338, 77 L. Ed. 2d 1019 (1983), the Court's majority did not mention Larson and did not apply strict scrutiny in
upholding against an establishment clause challenge Nebraska's practice of paying a chaplain to open each legislative
session with a prayer. The Court upheld Nebraska's chaplaincy practice notwithstanding [**16] its recognition that the
same Presbyterian clergyman was selected as chaplain for 16 years and the chaplain prayed in the Judeo-Christian
tradition. Id. 103 S. Ct. at 3337. The Marsh majority reached its decision based on the "unambiguous and unbroken
history of more than 200 years . . . of opening legislative sessions with prayer" and the framers' participation in this
practice. Id. 103 S. Ct. at 3335-36. Still, Lynch cites both Larson and Marsh with approval in consecutive sentences.
104 S. Ct. at 1362.
[*1217] The markedly different approaches the Court takes to answering establishment clause questions remind us that
the course of constitutional neutrality in [First Amendment jurisprudence] cannot be an absolutely straight line;
rigidity could well defeat the basic purpose of these provisions. . . . The general principle deducible from the
First Amendment and all that has been said by the Court is this: that we will not tolerate either governmentally
established religion or governmental interference with religion. Short of those expressly proscribed
governmental acts there is room for play in the joints productive of a benevolent neutrality which will permit
religious [**17] exercise to exist without sponsorship and without interference.
Walz v. Tax Com. of City of New York, 397 U.S. 664, 669, 90 S. Ct. 1409, 1411-12, 25 L. Ed. 2d 697 (1970). While we
recognize that the establishment clause exists to ensure government neutrality toward religion, we agree with Justice
Harlan that "neutrality in its application requires an equal protection mode of analysis." Id. 90 S. Ct. at 1425 (Harlan, J.,
concurring); accord Olsen v. Drug Enforcement Administration, 279 U.S. App. D.C. 1, 878 F.2d 1458, 1463 n. 5
(D.C.Cir. 1989), cert. denied, 495 U.S. 906, 110 S. Ct. 1926, 109 L. Ed. 2d 290 (1990). And in determining whether the
NAC is similarly situated to other religions, we will not ignore the fact that "tribes remain quasi-sovereign nations
which, by government structure, culture, and source of sovereignty are in many ways foreign to the constitutional
institutions of the federal and state governments." Santa Clara Pueblo, 98 S. Ct. at 1684 (emphasis added).
The unique guardian-ward relationship between the federal government and Native American tribes precludes the
degree of separation of church and state ordinarily required by the First Amendment. The federal government [**18]
cannot at once fulfill its constitutional role as protector of tribal Native Americans and apply conventional separatist
understandings of the establishment clause to that same relationship.
Above, we relied on Supreme Court precedent to hold that the federal NAC exemption represents a political
classification as to Peyote Way. While the exemption facially singles out one religion, we accept the government's
explanation that this was done because the NAC is the only tribal Native American organization of which the
government is aware that uses peyote in bona fide religious ceremonies. We know of no evidence to the contrary. Thus,
we hold that the federal NAC exemption represents the government's protection of the culture of quasi-sovereign Native
American tribes and as such, does not represent an establishment of religion in contravention of the First Amendment.
III. CONCLUSION
Because we find that 21 U.S.C. ßß 841, 844, 21 C.F.R. ß 1307.31, and Texas Health and Safety Code ßß 481.111(a),
481.114, 481.117, 481.122 do not violate any constitutional provision cited by Peyote Way, we AFFIRM the district
court's judgment denying Peyote Way declaratory and injunctive relief.
9
LARSON, COMMISSIONER OF SECURITIES, MINNESOTA DEPARTMENT
OF COMMERCE, ET AL. v. VALENTE ET AL.
No. 80-1666
SUPREME COURT OF THE UNITED STATES
456 U.S. 228; 102 S. Ct. 1673; 72 L. Ed. 2d 33; 1982 U.S. LEXIS 98; 50 U.S.L.W. 4411
December 9, 1981, Argued
April 21, 1982, Decided
PRIOR HISTORY:
CIRCUIT.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
JUSTICE BRENNAN delivered the opinion of the Court.
The principal question presented by this appeal is whether a Minnesota statute, imposing certain registration and
reporting requirements upon only those religious organizations that solicit more than fifty per cent of their funds from
nonmembers, discriminates against such organizations in violation of the Establishment Clause of the First Amendment.
1
1 The Clause provides that "Congress shall make no law respecting an establishment of religion . . . ." It is
applied to the States by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
I
Appellants are John R. Larson, Commissioner of Securities, and Warren Spannaus, Attorney General, of the State of
Minnesota. They are, by virtue of their offices, responsible for the implementation and enforcement of the Minnesota
charitable solicitations Act, Minn. Stat. §§ 309.50-309.61 (1969 and Supp. 1982). This Act, in effect since 1961,
provides for a system of registration and disclosure respecting charitable organizations, and is designed to protect the
contributing public and charitable beneficiaries against fraudulent practices in the solicitation of contributions for
purportedly charitable purposes. A charitable organization subject to the Act must register with the Minnesota
Department of Commerce before it may solicit contributions within the State. § 309.52. With certain specified
exceptions, all charitable organizations registering under § 309.52 must file an extensive annual report with the
Department, detailing, inter alia, their total receipts and income from all sources, their costs of management,
fundraising, and public education, and their transfers of property or funds out of the State, along with a description of
the recipients and purposes of those transfers. § 309.53. The Department is authorized by the Act to deny or withdraw
the registration of any charitable organization if the Department finds that it would be in "the public interest" to do so
and if the organization is found to have engaged in fraudulent, deceptive, or dishonest practices. § 309.532, subd. 1
(Supp. 1982). Further, a charitable organization is deemed ineligible to maintain its registration under the Act if it
expends or agrees to expend an "unreasonable amount" for management, general, and fund-raising costs, with those
costs being presumed unreasonable if they exceed thirty per cent of the organization's total income and revenue. §
309.555, subd. 1a (Supp. 1982).
From 1961 until 1978, all "religious organizations" were exempted from the requirements of the Act. But effective
March 29, 1978, the Minnesota Legislature amended the Act so as to include a "fifty per cent rule" in the exemption
provision covering religious organizations. § 309.515, subd. 1(b). This fifty per cent rule provided that only those
religious organizations that received more than half of their total contributions from members or affiliated organizations
would remain exempt from the registration and reporting requirements of the Act. 1978 Minn. Laws, ch. 601, § 5.
Shortly after the enactment of § 309.515, subd. 1(b), the Department notified appellee Holy Spirit Association for the
Unification of World Christianity (Unification Church) that it was required to register under the Act because of the
newly enacted provision. Appellees Valente, Barber, Haft, and Korman, claiming to be followers of the tenets of the
Unification Church, responded by bringing the present action in the United States District Court for the District of
Minnesota. Appellees sought a declaration that the Act, on its face and as applied to them through § 309.515, subd.
1(b)'s fifty per cent rule, constituted an abridgment of their First Amendment rights of expression and free exercise of
religion, as well as a denial of their right to equal protection of the laws, guaranteed by the Fourteenth Amendment;
10
appellees also sought temporary and permanent injunctive relief. Appellee Unification Church was later joined as a
plaintiff by stipulation of the parties, and the action was transferred to a United States Magistrate.
After obtaining a preliminary injunction, appellees moved for summary judgment. Appellees' evidentiary support for
this motion included a "declaration" of appellee Haft, which described in some detail the origin, "religious principles,"
and practices of the Unification Church. App. A-7 -- A-14. The declaration stated that among the activities emphasized
by the Church were "door-to-door and public-place proselytizing and solicitation of funds to support the Church," id., at
A-8, and that the application of the Act to the Church through § 309.515, subd. 1(b)'s fifty per cent rule would deny its
members their "religious freedom," id., at A-14. Appellees also argued that by discriminating among religious
organizations, § 309.515, subd. 1(b)'s fifty per cent rule violated the Establishment Clause.
Appellants replied that the Act did not infringe appellees' freedom to exercise their religious beliefs. Appellants also
contended that the Act did not violate the Establishment Clause. . . .
On the merits, the Magistrate held that the Act was facially unconstitutional with respect to religious
organizations, and was therefore entirely void as to such organizations. . . . The Magistrate therefore recommended,
inter alia, that appellees be granted the declarative and permanent injunctive relief that they had sought -- namely, a
declaration that the Act was unconstitutional as applied to religious organizations and their members, and an injunction
against enforcement of the Act as to any religious organization. Accepting these recommendations, the District Court
entered summary judgment in favor of appellees on these issues. . . .
On appeal, the United States Court of Appeals for the Eighth Circuit affirmed in part and reversed in part. . . . the Court
of Appeals affirmed the District Court's holding that the "inexplicable religious classification" embodied in the fifty per
cent rule of § 309.515, subd. 1(b) violated the Establishment Clause. . . .
III
A
The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred
over another. . . . Since Everson v. Board of Education, 330 U.S. 1 (1947), this Court has adhered to the principle,
clearly manifested in the history and logic of the Establishment Clause, that no State can "pass laws which aid one
religion" or that "prefer one religion over another. . . .In short, when we are presented with a state law granting a
denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in
adjudging its constitutionality.
B
The fifty per cent rule of § 309.515, subd. 1(b), clearly grants denominational preferences of the sort consistently and
firmly deprecated in our precedents. Consequently, that rule must be invalidated unless it is justified by a compelling
governmental interest, cf. Widmar v. Vincent, 454 U.S. 263, 269-270 (1981), and unless it is closely fitted to further
that interest, Murdock v. Pennsylvania, 319 U.S. 105, 116-117 (1943). With that standard of review in mind, we turn to
an examination of the governmental interest asserted by appellants.
. . . we will . . . assume, arguendo, that the Act generally is addressed to a sufficiently "compelling" governmental
interest. But our inquiry must focus more narrowly, upon the distinctions drawn by § 309.515, subd. 1(b), itself:
Appellants must demonstrate that the challenged fifty per cent rule is closely fitted to further the interest that it
assertedly serves.
Appellants argue that § 309.515, subd. 1(b)'s distinction between contributions solicited from members and from nonmembers is eminently sensible. They urge that members are reasonably assumed to have significant control over the
solicitation of contributions from themselves to their organization, and over the expenditure of the funds that they
contribute, as well. . . .
We reject the argument, for it wholly fails to justify the only aspect of § 309.515, subd. 1(b), under attack -- the
selective fifty per cent rule. Appellants' argument is based on three distinct premises: that members of a religious
organization can and will exercise supervision and control over the organization's solicitation activities when
membership contributions exceed fifty per cent; that membership control, assuming its existence, is an adequate
safeguard against abusive solicitations of the public by the organization; and that the need for public disclosure rises in
proportion with the percentage of nonmember contributions. Acceptance of all three of these premises is necessary to
appellants' conclusion, but we find no substantial support for any of them in the record.
Regarding the first premise, there is simply nothing suggested that would justify the assumption that a religious
organization will be supervised and controlled by its members simply because they contribute more than half of the
organization's solicited income. Even were we able to accept appellants' doubtful assumption that members will
11
supervise their religious organization under such circumstances, the record before us is wholly barren of support for
appellants' further assumption that members will effectively control the organization if they contribute more than half of
its solicited income. Appellants have offered no evidence whatever that members of religious organizations exempted
by § 309.515, subd. 1(b)'s fifty per cent rule in fact control their organizations. . . . In short, the first premise of
appellants' argument has no merit.
Nor do appellants offer any stronger justification for their second premise -- that membership control is an adequate
safeguard against abusive solicitations of the public by the organization. This premise runs directly contrary to the
central thesis of the entire Minnesota charitable solicitations Act -- namely, that charitable organizations soliciting
contributions from the public cannot be relied upon to regulate themselves, and that state regulation is accordingly
necessary. 26 Appellants offer nothing to suggest why religious organizations should be treated any differently in this
respect. And even if we were to assume that the members of religious organizations have some incentive, absent in
nonreligious organizations, to protect the interests of nonmembers solicited by the organization, appellants' premise
would still fail to justify the fifty per cent rule: Appellants offer no reason why the members of religious organizations
exempted under § 309.515, subd. 1(b)'s fifty per cent rule should have any greater incentive to protect nonmembers
than the members of nonexempted religious organizations have. Thus we also reject appellants' second premise as
without merit.
26 This thesis is evident in the Act's treatment of nonreligious organizations that might solicit within the State:
With exceptions not relevant here, such organizations are exempted from the registration and reporting
requirements of the Act only if their solicitations of the public are de minimis, § 309.515, subds. 1(a)(1), (f), or if
they are subject to independent state regulation, § 309.515, subd. 1(c).
Finally, we find appellants' third premise -- that the need for public disclosure rises in proportion with the
percentage of nonmember contributions -- also without merit. The flaw in appellants' reasoning here may be illustrated
by the following example. Church A raises $ 10 million, 20 per cent from nonmembers. Church B raises $ 50,000, 60
per cent from nonmembers. Appellants would argue that although the public contributed $ 2 million to Church A and
only $ 30,000 to Church B, there is less need for public disclosure with respect to Church A than with respect to Church
B. We disagree; the need for public disclosure more plausibly rises in proportion with the absolute amount, rather than
with the percentage, of nonmember contributions. 27 The State of Minnesota has itself adopted this view elsewhere in §
309.515 . . .
27 We do not suggest, however, that an exemption provision based upon the absolute amount of nonmember
contributions would necessarily satisfy the standard set by the Establishment Clause for laws granting
denominational preferences.
We accordingly conclude that appellants have failed to demonstrate that the fifty per cent rule in § 309.515, subd.
1(b), is "closely fitted" to further a "compelling governmental interest."
IV
In sum, we conclude that the fifty per cent rule of § 309.515, subd. 1(b), is not closely fitted to the furtherance of any
compelling governmental interest asserted by appellants, and that the provision therefore violates the Establishment
Clause. Indeed, we think that § 309.515, subd. 1(b)'s fifty per cent rule sets up precisely the sort of official
denominational preference that the Framers of the First Amendment forbade. Accordingly, we hold that appellees
cannot be compelled to register and report under the Act on the strength of that provision.
The judgment of the Court of Appeals is
Affirmed.
12