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?