Peyote, Race, and Equal Protection in the United States

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.