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:

By adopting the federally-recognized tribes version of the interest, however, we remain on safe ground, based on the Supreme Court’s conclusion that federallyrecognized tribes are political—rather than religious or racial—in nature.  See Morton, 417 U.S. at 554.  As long as the federal government takes action toward federally-recognized tribes as political entities, supported by the specific provisions of the Constitution that grant Congress exceptional powers vis-à-vis such tribes, the government can avoid unconstitutionally favoring one religion over another.  See Cohen§ 14.03[2][c][iii] (noting that equal protection-based claims by non-Indians challenging religious exemptions for Indians have been rejected under the Morton reasoning).

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). Only one of those cases (Lyng) 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.”

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