Tomorrow the Supreme Court likely will deny cert in the Friday v. United States petition. SCOTUSblog does not pick it as a “petition to watch”, which means something. There was a moment when the Supreme Court might have heard this case (and maybe not in a good way, since the United States would be the petitioner then), but the Tenth Circuit joined the Ninth Circuit in upholding the constitutionality of the Bald Eagle Protection Act.
The ironic, even ridiculous, result of these cases is that it is easier for non-Indians to take advantage of the American Indian religious exemptions than it is for Indians. Yesterday, Indianz reported on one such case favoring non-Indians. Here is the argument:
Samuel Wilgus Jr and Raymond Hardman were convicted of possessing feathers without a federal permit. But since they are not enrolled in a federally recognized tribe, they wouldn’t have been able to obtain one. The scheme violates the Religious Freedom Restoration Act, Judge Dee Benson ruled. The men say they are practitioners of Native American religions. (emphasis added) [Here is the opinion — Wilgus Order]
So, what this means is that the very existence of a regulatory/statutory mechanism for Indians to acquire eagle parts under the Protection Act through the National Eagle Repository — a mechanism that is incontrovertibly useless, a fact that Indian people could conceivably prove (but apparently not a “constitutional fact”) — means that the statute does not violate the Religious Freedom Restoration Act. But for non-Indians, who can never take advantage of the Repository (and, perhaps, Indian religions), it is a constitutional violation.
I’ve convinced myself. It is ridiculous.