Here is the opinion in State v. Fluewelling.
Defendant relies upon the phrase, “nor shall any preference be given by law to any religious denomination or mode of worship.” He contends that a preference has been granted to another religion by Idaho Code § 37-2732A. That statute exempts from the criminal sanctions in the Uniform Controlled Substances Act the transporting, delivery, or possession of peyote by“persons of native American descent who are members or eligible for membership in a federally recognized Indian tribe” when such peyote is “to be used as the sacrament in religious rites of a bona fide native American religious ceremony conducted by a bona fide religious organization.” Defendant argues that “[t]he government may not allow the use of peyote as ‘the sacrament inreligious rites of a bona fide native American religious ceremony’ while at the same time punishing [Defendant] for his sacramental use of marijuana in the privacy of his home.”
Assuming that Idaho Code § 37-2732A grants a preference to certain native Americans in the practice of their religion, that would be a basis for invalidating that statute. It is not a basis for invalidating Idaho Code § 37-2732(a)(1)(B) under which Defendant was convicted. The statute under which he was convicted is of general application and it does not proscribe any conduct because it is engaged in for religious reasons or because of the religious belief it portrays. It is entirely neutral with respect to religion. It does not directly or indirectly give a preference to any religious denomination or mode of worship. The district court did not err in denying Defendant’s motion to dismiss.
We’ve commented before on the irony that the Bald and Golden Eagle Protection Act sharply limits the religious freedom of American Indians as a practical matter (taking months or years before Indians can navigate the National Eagle Repository system), but at the same time, federal constitutional law virtually prohibits the federal government from prosecuting non-Indians under the Act. As the Wilgus/Hardman and the Friday cases demonstrate, non-Indians have more practical ability to exercise Indian religious practices than Indians do (our commentary here).
Another interesting twist is developing in American Indian religious freedom. Here is a short opinion in a case out of the Western District of Oklahoma (United States v. Velezquez) in which the government is successfully prosecuting non-Indians for peyote use and possession, despite their claims that it is unfair for Indians to be exempted from the law (Valazquez DCT Order & Velazquez Motion to Dismiss) — the exact same claim made by the non-Indian defendants in the Wilgus/Hardman cases.
There are a bunch of lower court cases pre-dating the Religious Freedom Restoration Act (the statute usually in question in the eagle cases, too) denying the equal protection claims of non-Indians. But that was before Gonzalez v. UDV, in which the Supreme Court applied RFRA to strike down a federal ban on hoasca. In the Velazquez case, the court made no effort to discuss UDV, but I suspect there’s a strong argument that RFRA might apply here.
And thus the irony. Why does RFRA protect non-Indians in the eagle cases, but not in the peyote cases?
The Arizona Court of Appeals, Division 1, recently decided State v. Hardesty, an appeal of a conviction for marijuana possession based on the state religious freedom law. There is some discussion of peyote law.
Here is the opinion — hardesty-arizona-coa-opinion
From the NYTs:
“It all began with an Indian who wanted to eat peyote.
“His name was Alfred Smith. He belonged to the Klamath tribe in Oregon and was a member of the North American Church, whose sacramental rites included ingesting peyote buds.
“On March 2, 1984, when he told his boss at the alcohol and drug treatment center where he worked that he would be attending a church meeting the following day, he was told that if he used peyote there he would be fired. He did, and he was.
“It’s a circuitous road from there to a federal appeals court ruling last week that the village of Mamaroneck had improperly denied an application by the Westchester Day School, an Orthodox Jewish school, for a new $12 million classroom building.
“Peyote or no peyote, land-use planning and zoning board decisions aren’t made for thrilling public debate — unless it’s your backyard that’s involved. But the path from the North American Church to the Orthodox day school does have an Alice in Wonderland quality. It has brought the federal government someplace it has almost never been — the realm of local land use, planning and zoning decisions.”
From the Leelanau Enterprise: “Leelanau County Family Court Judge Joseph E. Deegan last week ordered that the parents of three children who are members of the Grand Traverse Band of Ottawa and Chippewa Indians must refrain from giving their children hallucinogenic peyote as part of Native American religious rituals.”
This appears to be an emerging issue in Michigan and perhaps elsewhere. Naturally, these cases arise when the families split and custody and visitation questions are decided in court. Interestingly, because there is relatively little trust land in Michigan, I would imagine that few (if any) of these cases are heard in tribal court. I wonder if the outcomes would be different.