Incredible opinion: Arocha Opinion July 9, 2010.
Here are the materials.
Religious Freedom Restoration Act
Oklevueha Native Am. Church v. Holder — Federal Court Declines to Dismiss RFRA Claim
Interesting case. Not sure if it will go anywhere. The claim is about the federal government’s seizure of cannabis from this organization based in Hawaii. Claims for an injunction against future prosecution and for tort claims related to the seizure were dismissed.
Here are the materials:
An earlier motion to dismiss on the first complaint was granted (materials here).
Tenth Circuit Rejects RFRA Claim re: Autopsy of American Indian
Opinion in Ross v. Board of Regents for the University of New Mexico here:
Hawaii Native American Church Cannabis Claims Dismissed
Here is the opinion in Oklevueha Native Am. Church of Haw. v. Holder: Oklevueha v Holder.
Plaintiff Michael Rex “Raging Bear” Mooney and the Oklevueha Native American Church of Hawaii, Inc., seek a declaration that they be allowed to grow, use, possess, and distribute cannabis free from federal drug-crime prosecution. Plaintiffs allege that cannabis is used in their religion and assert that their right to religious freedom is being infringed on by United States drug laws, specifically 21 U.S.C. § 841.
Defendants have moved for dismissal of the Complaint, arguing that, on the face of the Complaint, the claims asserted are not ripe, that Oklevueha lacks standing to assert claims on behalf of its members, and that Plaintiffs fail to allege sufficient claims in any event. Because this court agrees that the Complaint fails to allege ripe claims on the face of it, Defendants’ motion is granted and Plaintiffs’ Complaint is dismissed with leave to amend.
Omaha Tribe Member’s Challenge to the Eagle Act Fails
The lesson learned, once again, is to request a permit to take eagles. Here are the materials in U.S. v. Bertucci (D. Neb.):
Briefing in Wilgus Eagle Act/RFRA Appeal in Tenth Circuit
The Tenth Circuit briefing in United States v. Wilgus is complete:
Friday Eagle Criminal Trial to be Heard in Tribal Court
Here is the news article via Pechanga, and here are the documents:
ICT Article on the Wilgus Case
From ICT:
The time-honored and exclusive right of American Indians to use eagle feathers for religious purposes has been challenged by a Utah judge whose findings will be appealed in the Denver 10th Circuit Court.
If the challenge is upheld and implemented, non-Natives would be able to obtain eagle feathers and parts from the National Eagle Repository for religious purposes, according to a Utah District Court judge.
Allowing non-Indians to apply would end a situation in which they are “subject to criminal prosecution if they possess eagle feathers at all” even though they may be “adherents to the very same religions” as Indian practitioners, Judge Dee Benson said.
In fact, American Indian groups and individuals disagree over whether non-Natives should engage in traditional Native spiritual practices, the lower court said.
Commentary on the Inconsistencies in American Indian Religious Freedom Cases
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?
Student Note on the Arizona Snowbowl Case
Here is “Making Snow in the Desert: Defining a Substantial Burden under RFRA,” published in the Ecology Law Quarterly. An excerpt:
Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to
reconcile the statutory provisions of RFRA with the Supreme Court’s
ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded,
RFRA was not intended to remedy the disparate treatment of sacred site claims
in free exercise doctrine and thus, it does not provide any more protection for
these claims than the Free Exercise Clause. Both of the Ninth Circuit’s
decisions, however, may ultimately lead to a more equitable framework for
analyzing free exercise challenges.
Judge Fletcher’s opinion in Navajo Nation reflected a determined effort to reconcile the statutory provisions of RFRA with the Supreme Court’s ethnocentric decision in Lyng. Unfortunately, as the en banc panel concluded, RFRA was not intended to remedy the disparate treatment of sacred site claims in free exercise doctrine and thus, it does not provide any more protection for these claims than the Free Exercise Clause. Both of the Ninth Circuit’s decisions, however, may ultimately lead to a more equitable framework for analyzing free exercise challenges.
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