Abstract
This chapter will seek to outline the parameters of the “trust responsibility” as it relates to protections for the religious use of peyote by American Indians, to explain the significance of this doctrine in the preservation of tribal entities and American Indian culture, and to examine its shortcomings in relation to the preservation of the cultural institution of peyotism. Since American Indians first received a federal exemption for religious use of peyote in 1965, many groups seeking legal protection for the religious use of psychoactive substances have sought to capitalize on this exemption in the form of an Equal Protection challenge, arguing that their religious use of psychoactive drugs is parallel to the American Indian use of peyote. Challenges to the exemption are largely premised on the notion that “special” treatment of American Indians is based upon a fundamentally racial categorization, and is therefore constitutionally intolerable. The trust responsibility, while frequently misconstrued, has been applied in ways that raise legitimate questions regarding the use of racial criteria by the federal government when dealing with Native peoples. The importance of the trust responsibility will be examined in light of these race based Equal Protection challenges, and further critical examination of this doctrine will be made to understand how race has played a role in regulating religious use of peyote, and also how the static views of culture and cultural identity inherent in the racial application of this doctrine may ultimately threaten, rather than preserve, traditional American Indian practices such as peyotism.
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Notes
- 1.
See Lander, this volume, for a discussion of how the NAC came to be seen as a model for others, including Timothy Leary and the Neo-American Church, for establishing a religious right to protect controlled substance use.
- 2.
Peyotism generally refers to the sacramental use of peyote as practiced among some American Indian groups. Peyotist, a variant of this term, refers to one who practices peyotism, or the peyote religion.
- 3.
The agency title Bureau of Indian Affairs was only adopted in 1947, but the title is used here, for simplicity sake, to refer to all previous permutations of the agency, including the Office of Indian Affairs and Indian Services.
- 4.
In retribution for his participation in the incorporation of the NAC, Mooney was subsequently banned from returning to the Kiowa reservation by the BIA (Moses 2002).
- 5.
Little has been written about the history or activities of the NAC in Canada or Mexico. References to the NAC in Mexico have been generally obscure, but for a brief history of the NAC in Canada, see Dyck and Bradford (2012).
- 6.
While race continues to be used as a legal category, and has some significant applications in protecting traditionally marginalized groups, the concept of race continues to be problematic. Specifically, the concept of race tends to equate biology with behavior and culture. For purposes of this paper, I have attempted to restrict my use of “race” to contexts where it is used as a legal category or principle, and to use the term “ethnicity” in all other places. Ethnicity has the advantage of acknowledging traits shared within a group, such as language, custom, dress, religion, and cuisine, without implying a biological basis to these traits.
- 7.
NACNA is known to be staunchly opposed to the participation of non-Indians, even to the extent of encouraging members to report non-Indian participants for potential prosecution (Maroukis 2010).
- 8.
Termination was implemented as a policy in the 1950s, with the goal of eliminating tribal self-government and of integrating Indians into the general population. During this period, a series of acts were passed by Congress eliminating the governmental status and federal recognition of approximately 109 different tribes.
- 9.
See Brown, this volume, for a further discussion of the current statutory and constitutional bases for freedom of religion.
- 10.
It is important to note that the UDV’s argument is premised upon an understanding of political classifications under the trust responsibility as inherently race-based.
- 11.
AIRFAA would not be passed for another 3 years (1994).
- 12.
While the UDV lost their Equal Protection argument, they would go on to win the right to use their religious sacrament, ayahuasca, under the Religious Freedom Restoration Act of 1993 (Gonzales v. UDV 2006).
- 13.
Interestingly, James “Flaming Eagle” Mooney reports that he is a descendant of the ethnologist James Mooney, discussed earlier in this chapter.
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Feeney, K. (2014). Peyote, Race, and Equal Protection in the United States. In: Labate, B., Cavnar, C. (eds) Prohibition, Religious Freedom, and Human Rights: Regulating Traditional Drug Use. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40957-8_4
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