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Turtle Talk: The 'soft trust' in 10th Circuit's eagle feather case
Thursday, March 31, 2011
Filed Under: Environment | Law | Opinion

"The analysis of the Tenth Circuit in United States v. Wilgus is striking. Of note, the court adopts a sort of limiting principle that it hopes meets all of the competing interests, and relies heavily on Morton v. Mancari.

On one hand, this formulation does, to some extent, meet the Supreme Court’s consideration of prior American Indian religious freedom cases. I count three (Bowen v. Roy, Lyng, and Employment Div. v. Smith). None of those cases involved federally-recognized tribes or members of federally-recognized Indians. But it is a lot to place on Mancari, which was a purely secular case, by the way.

Moreover, the real argument in favor of the exemption for Indian tribes and their members, according to the court, “spring[s] from history and from the text of the Constitution ….” This is what I usually refer to in my Indian law classes as a “soft trust,” a “hard trust” being a federal obligation expressly and specifically articulated in a statute, reg, or treaty. The “soft trust” largely is unenforceable against Congress, but may be used against the Executive branch to stave off negative government action and for other purposes. Ironically, the Supreme Court soon will decide U.S. v. Jicarilla Apache Nation, which at its heart appears to be an attempt by the Dept. of Justice to eliminate all forms of the “soft trust.”"

Get the Story:
Initial Thoughts on Wilgus Eagle Feather Decision (Turtle Talk 3/31)

Also Today:
Only Indians Can Use Eagle Feathers for Religious Practices, Court Rules (Greenwire 3/30)

10th Circuit Decision:
US v. Wilgus (March 29, 2011)

Related Stories:
10th Circuit allows charges in non-Indian eagle feather case (3/30)

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