The 1994 Amendments to American Indian Freedom Act and other Relative Information My Two Beads Worth
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House Report Excerpts on '94 Amendments
to American Indian Religious Freedom Act
PURPOSE
The purpose of H.R. 4230 is to amend the American Indian Religious
Freedom Act to provide for the traditional use of peyote by Indians for
religious purposes, and for other purposes.
BACKGROUND AND NEED
Peyote, the scientific name of which is Lophophora williamsii, is a
small, spineless cactus that grows only in the Rio Grande valley of
southern Texas and northern Mexico. Anthropologists date the
sacramental use of the peyote cactus among indigenous peoples back
10,000 years. Native American religious use of peyote was discovered by
Spanish explorers in the 1600's and has continued to the present. Such
use exists today, largely through the Native American Church (NAC),
among more than 50 Indian tribes in the United States. The NAC is the
present- day embodiment of one of the oldest religious traditions in the
western hemisphere. The contemporary NAC was first incorporated in
Oklahoma in 1918, and now has chapters in 25 States. Approximately
250,000 American Indians are affiliated with the NAC.
The Federal District Court in New Mexico, in the 1986 case of Toledo v.
Nobel-Sysco, Inc., 651 F.Supp. 483 (D.N.M. 1986) held that the religious
use of peyote was not illegal. The court found that;
Church peyote users believe that peyote is a sacred and powerful plant.
Peyote is seen as a medicine, a protector, and a teacher. In terms used
by other religions, peyote can be called a sacrament, something which
when eaten gives awareness of God. The use of peyote is central to the
Native American peyote religion. The religion teaches that those who
use peyote must not use alcohol. It encourages love of parents and
obedience to parents, fidelity to a spouse, and charity towards others.
The peyote religion does not prohibit members from also practicing other
religions.
Medical evidence, based on scientific studies and opinions of
scientific and other experts, including medical doctors, former
directors of the Indian Health Service and Enthropologists, clearly
demonstrates peyote is not injurious to the Indian religious user, and,
in fact, is often helpful in controlling alcoholism and alcohol abuse
among Indian people. Ingested as a solid or tea in strictly prescribed
and controlled religious ceremonies, the sacrament is neither addictive
nor habit forming. Courts which have made factual findings regarding
the religious use of peyote by Indians have concluded that such use is
not harmful.
While the First Amendment right of Indian practitioners of the peyote
religion is endangered by the Smith decision, its religious use is
basically non-controversial. Attempts by the Congress to recognize and
protect this right have a long history. When the House of
Representatives passed H.R. 2, which became the "Drug Abuse Control
Amendments of 1965", it protected the right of Indians to use peyote in
connection with the ceremonies of a certified religious organization.
The Senate omitted that specific protection, preferring that substances
be included on such a list on a case-by-case basis. Congressman Harris
assured House members that such omissions would not prevent bona fide
religious use because courts had already upheld peyote use as a First
Amendment right. The Administration then added peyote to Schedule I by
administrative regulation in 1966, but provided an exemption for non-
drug use of peyote in religious ceremonies of the Native American
Church.
When Congress passed the Controlled Substance Act of 1970, it enacted
Schedule I into law. During hearings on the legislation, Congressman
Satterfield expressed concern that the religious use of peyote by Indian
practitioners be protected. The Administration assured him that this
would be taken care of by regulation. The regulations, adopted in 1971
to implement the Act, provide at 21 CFR 1307.31:
The listing of peyote as a controlled substance in Schedule I does not
apply to the nondrug use of peyote in bona fide religious ceremonies of
the Native American Church.
Since that time, Native American Church use of peyote as a religious
sacrament has had the limited protection of Federal regulation.
Officials of the Drug Enforcement Administration of the Department of
Justice testified at House hearings in 1993 and 1994 that the religious
use of peyote by Indians has nothing to do with the vast and violent
traffic in illegal narcotics that plagues this country. The DEA further
testified that it is unaware of the diversion of peyote to any illicit
market. The NAC has a good, cooperative relationship with the DEA in
ensuring that peyote is lawfully harvested and distributed solely for
American Indian religious use. The distribution of peyote is strictly
controlled by Federal regulations, and by the laws and regulations of
the State of Texas, the only State in which the sacrament grows in
significant quantities.
In addition to the Federal regulatory exemption of the DEA, 28 States
provide some degree of legal protection for the religious use of peyote
by Indians. However, neither the Federal regulation nor the State laws
provide the full range of protection needed for the unhindered religious
use of peyote by Indians, and 22 States still have no legal protection
at all. In some States, the legal protection for Indians is limited to
the opportunity to assert the religious use of peyote as an affirmative
defense in the context of felony prosecution. Thus, bona fide NAC
members can be arrested, finger-printed, incarcerated and subjected to
all the indignities of a felony prosecution before they can be
vindicated and set free. Even then, they will have a criminal record--
simply for practicing a bona fide religion that predates the founding of
this country by some 10,000 years.
As a result of the diverse State laws governing the use of peyote,
Indians in different tribes from different States, as well as from
different tribes within some States, are treated differently regarding
the traditional religious use of peyote. [Footnote 1] NAC members who
have lawfully acquired the sacrament in Texas can still be arrested and
subjected to felony prosecution and imprisonment in 22 States, States in
which they may live or through which they must travel on their way home
from Texas after lawfully acquiring the sacrament. This current State-
by-State patchwork of laws has a chilling effect on the freedom of many
Indian people to travel in this country and to practice their religion.
Legislation is therefore needed to assure comprehensive, equal and
uniform protection of the religious use of peyote by Indians throughout
the United States, without regard to the State or reservation of
residence, or tribal affiliation.
While 28 States do provide varying legal protections for the religious
use of peyote by Indians, the U.S. Supreme Court ruled in 1990 in the
Smith case that it is constitutionally permissible for States to
prohibit such use. This legislation is made necessary by the Smith
ruling.
NEED FOR H.R. 4230 NOTWITHSTANDING THE RELIGIOUS FREEDOM RESTORATION ACT
OF 1993
The Committee recognizes that H.R. 4230 remains necessary
notwithstanding the recent enactment of the Religious Freedom
Restoration Act of 1993. Justice O'Connor agreed with the judgment of
the majority in Smith that Oregon's prohibition of the sacramental use
of peyote was constitutionally permissible. However, she thought it
unnecessary to discard the compelling government interest test in order
to reach this result. Instead, Justice O'Connor would have retained and
applied the traditional test to rule that the religious use of peyote by
Indians is not protected by the first Amendment, since in her view the
"State in this case has a compelling interest in regulating peyote use
by its citizens-- * * *" [Footnote 4] In Justice O'Connor's view,
Oregon would have met the compelling government interest test solely on
the judgment of the State legislature to list peyote as a Class 1
controlled substance, and notwithstanding factual considerations.
The Supreme Court's reliance on Oregon's position in Smith that the
State has an interest in protecting the health and safety of its
citizens from the "dangers" of peyote is highly questionable. As
pointed out by Justice Blackmun in his dissent in Smith, Oregon's
position "rests on no evidentiary foundation at all," and is therefore
entirely speculative". [Footnote 5] As underscored by the dissent, the
majority agreed with Oregon's assertion, notwithstanding that Oregon
failed to offer any "evidence that the religious use of peyote has ever
harmed anyone." [Footnote 6] To the contrary, the record in Smith amply
showed that:
(1) Factual findings of other courts contradict Oregon's as sumption
that the religious use of peyote is harmful;
(2) Medical evidence, based on the opinion of scientists and other
experts, including medical doctors and anthropologists, is that peyote
is not injurious;
(3) The distribution and use of peyote has nothing to do with the vast
and violent traffic in illegal narcotics that plagues this country;
(4) There is virtually no illegal trafficking in peyote--Drug
Enforcement Administration (DEA) data indicates that between 1980 and
1987, only 19.4 pounds of peyote was confiscated, while during the same
period the DEA seized over 15 million pounds of marijuana;
(5) The distribution of peyote is strictly controlled by Federal and
Texas State regulations--the only State where peyote grows in
significant quantities;
(6) The carefully circumscribed religious context in which peyote is
used by Indians is far removed from the irresponsible and unrestricted
recreational use of unlawful drugs, and is similar to the sacramental
use of wine by the Roman Catholic Church, which was exempted from the
general statutory ban on possession and use of alcohol during
Prohibition;
(7) The Federal Government and 23 States [now 28] provide an exemption
from respective drug laws for the religious use of peyote by American
Indians;
(8) Native American Church doctrine forbids the non-religious use of
peyote, and also advocates self-reliance, familial responsibility and
abstinence from alcohol;
(9) Spiritual and social support provided by the Native American Church
has been effective in combatting the tragic effects of alcoholism among
the Native American population;
(10) Oregon's assertion that granting a religious exemption for the use
of peyote would open the floodgates to claims for the religious use of
controlled substances by other religious denominations is not an issue
because the Supreme Court and lower courts over the years have
consistently rejected similar arguments in past free exercise cases,
having held that the religious use of peyote by American Indians is the
sole circumstance warranting claims for a religious exemption for any
controlled substance; and
(11)granting a religious exemption solely for the sacramental use of
peyote by American Indians presents no equal protection problems.
Notwithstanding the above-referenced record in Smith, Justice O'Connor
felt Oregon had a compelling interest to prohibit the religious use of
peyote, even though Oregon had never evinced a concrete interest in
enforcing its drug laws against religious users of peyote--including Al
Smith, the plaintiff in the Smith case. The committee recognizes that
traditional Indian religions, including the peyote religion, are highly
unique in nature and are little understood by the courts and other
government officials. Given this backdrop, the Committee believes that
the traditional religious use of the peyote sacrament by Indians
requires statutory protection. H.R. 4230 responds to the Supreme
Court's invitation in Smith to accommodate this ancient religious
practice through the political process.
Absent Federal legislation, the question of whether a given State has a
compelling interest to prohibit the religious use of peyote by Indians
is one that would necessarily be determined by the courts on a State-by-
State basis. The Committee recognizes that such determination could
require numerous State supreme court decisions and a corresponding
number of U.S. Supreme Court opinions--with varying results possible, as
well as numerous lower State and Federal court decisions. Such
piecemeal judicial resolution to this issue is not likely to produce
uniform, just or equal results, and would be unduly burdensome, costly
and time consuming. The Committee recognizes that uniform and equal
protection of Indians without regard to State or reservation of
residence, or tribal affiliation, can only be accomplished by Congress
through comprehensive legislation.
CONSTITUTIONALITY
Since the creation of the United States, the treaty relationship between
Indian tribes and the United States government has engendered a long-
standing political relationship under the Constitution. This
relationship includes a Federal trust responsibility for Indian tribes
which has resulted in hundreds of separate Federal statutes dealing with
all aspects of Indian life, including health, education, religion,
economic development, children, employment, language and culture,
gaming, and a host of other subject matter areas. An entire title of
the United States Code (25 U.S.C.) is devoted exclusively to Indian
legislation. Because Indians and Indian tribes occupy a sui generis
legal status in Federal law under the U.S. Constitution and enjoy a
special political relationship with the United States Government,
separate Indian legislation has consistently been upheld by the U.S.
Supreme Court under the legal principles set forth in Morton v. Mancari,
417 U.S. 535, 551-55 (1974). At the urging of the U.S. Department of
Justice, the long-standing rationale for special Indian treatment by the
Federal Government was recently applied by the Fifth Circuit Court of
Appeals regarding the religious use of peyote in Peyote Way Church of
God v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991). Finding that the
Native American Church (NAC) members were also members of federally
recognized tribes, the Fifth Circuit upheld the constitutionality of the
DEA's protective regulation against an equal protection challenge:
We hold that the federal NAC exemption allowing tribal Native Americans
to continue their centuries-old tradition of peyote use is rationally
related to the legitimate governmental objective of preserving Native
American culture. Such preservation is fundamental to the Federal
Government's trust relationship with tribal Native Americans. Under
Morton, [non-Indians] are not similarly situated to--NAC [members] for
purposes of cultural preservation and thus, the Federal Government may
exempt NAC members from statutes prohibiting possession of peyote
without extending the exemption to [non-Indians]. [Footnote 8]
The Fifth Circuit also ruled that the DEA exemption for NAC members did
not violate the establishment clause of the First Amendment:
The unique guardian-ward relationship between the Federal Government and
Native American Indian tribes precludes the degree of separation of
church and state ordinarily required by the First Amendment. The
Federal Government cannot at once fulfill its constitutional role as
protector of tribal Native Americans and apply conventional separatist
understandings of the establishment clause to that relationship.
* * * Thus, we hold that the Federal NAC exemption represents the
Government's protection of the culture of quasi-sovereign Native
American tribes and as such, does not represent an establishment of
religion in contravention of the First Amendment. [Footnote 9]
Based on the special relationship between the United States and
Federally recognized tribes, and on Peyote Way Church of God, the U.S.
Department of Justice testified that Congress has the requisite
authority to enact H.R. 4230, and that it is constitutionally sound.
Accordingly, the Committee is confident that the granting of a statutory
religious exemption for the sacramental use of peyote solely by American
Indians presents no equal protection or establishment clause problems,
and therefore stands on a solid constitutional footing.
[Footnote 1] For example, there are three Indian reservations in
Nebraska where Native Americans reside: the Winnebago, Omaha and Santee
Sioux. Nebraska state law does not provide for an exemption for the
religious use of peyote by Indians. Therefore, Native American Church
members transporting the sacrament to any of the three Nebraska
reservations could be arrested, prosecuted and incarcerated if caught in
possession of the sacrament anywhere in the state before they enter the
reservation. As a result of federal Indian policy and related
jurisdictional matters, the State of Nebraska does not have criminal
jurisdiction over the Winnebago or Omaha reservations, but does have
such authority over the Santee Sioux Reservation.
Thus, Omaha and
Winnebago Indians may lawfully use peyote for religious purposes on
their own reservations, because state law is not applicable there and
such use is protected by the federal exemption of the DEA. However,
Indians using the sacrament on the Santee Sioux Reservation could be
prosecuted under state law since Nebraska criminal law is applicable at
Santee and there is no state law exemption for the religious use of the
sacrament. Such anomalous situations are not uncommon and underscore
the need for a uniform national law that will provide American Indians
with equal protection throughout the nation.
[Fn 2] 494 U.S. at 890.
[Fn 3] Id. at 894 (citations omitted).
[Fn 4] 494 U.S. at 907.
[Fn 5] 494 U.S. at 911.
[Fn 6] 494 U.S. at 911-l2.
[Fn 7] 494 U.S. at 911-18 for precise citations
of enumerated paragraphs.
[Fn 8] Id. at 1216.
[Fn 9] Id. at 1217.
COMMITTEE AMENDMENT
The Committee Amendment to Hl.R. 4230 provides that Federal departments
or agencies are not prohibited from promulgating regulations
establishing reasonable time limitations on the use or ingestion of
peyote prior to performance of official duties by active military
personnel, sworn law enforcement officers, or personnel directly
involved in public safety or safety-sensitive positions where the
performance of such duties may be adversely affected by such use or
ingestion. While the committee is unaware of any such problems in the
past, it intends to accommodate prospective concerns articulated
principally by the Department of Transportation and Department of
Defense.
An official of the Native American Church testified at the June 10, 1994
hearing of the Native American Affairs Subcommittee that the effects of
peyote do not persist more than 6 hours. The Committee recognizes the
medical literature and related studies indicate that mescaline, the
psychoactive component of peyote, may persist in the brain for up to 9
to 10 hours, [Footnote 10] and that the physiological effects of peyote
can last up to 12 hours. [Footnote 11] The committee therefore deems a
period of 6 to 24 hours to be "reasonable" as to authorized time
limitations regarding the use or ingestion of peyote, pursuant to
regulations the departments or agencies may promulgate under H.R. 4230.
The committee further believes that, where an agency proposes a time
limitation exceeding 24 hours, it should be prepared to show such
limitation meets the balancing test set forth in the Religious Freedom
Restoration Act. The Committee is confident that the bill and the 6 to
24 hour range for time limitations will adequately and amply meet the
needs of affected departments, and will not adversely impact the ability
of U.S. military personnel, law enforcement officers or persons directly
involved in positions related to public safety to maintain good order,
discipline, security and safety.
The Committee does not intend the act to impose requirements that would
exacerbate the difficult and complex challenges of operating the
Nation's prisons and jails in a safe and secure manner. Accordingly,
the Committee does not intend the Act to require prison officials to
either prescribe or proscribe the religious use of peyote by Indian
inmates. Rather, the Committee expects that these matters will be
addressed under the Religious Freedom Restoration Act of 1993, and that
the courts will continue the tradition of giving due deference to the
experience and expertise of prison and jail administrators in
establishing necessary rules and procedures to maintain good order,
security and discipline.
U.S. DEPARTMENT OF JUSTICE,
DRUG ENFORCEMENT ADMINISTRATION,
Washington, DC, August 3, 1994.
Mr. TADD JOHNSON,
Chief Counsel, Subcommittee on Native American Affairs, House of
Representatives, Washington, DC.
DEAR MR. JOHNSON:
It is my understanding that H.R. 4230, "American Indian Religious
Freedom Act of 1994", is nearing floor consideration in the House. You
will recall that while the Drug Enforcement Administration (DEA) was
unable to have a witness at your hearing regarding this matter on June
10, 1994, that we did submit a statement for the record. That statement
succinctly puts forth the history of DEA's regulation of peyote and the
exemption for its use in traditional Native American ceremonies. DEA has
encountered no problems with the use of peyote in these traditional
ceremonies nor has diversion of peyote been a problem.
DEA has had a long and cooperative association with the Native American
Church, working with them since the early 1970's to assure that our
mutual concerns relating to peyote are met. We have worked with its
representatives to assure that the bill language effectively addresses
these matters. DEA supports the passage of H.R. 4230 as it was reported
by the Committee on Natural Resources with the amendments that address
public safety concerns.
If I can provide you with any other information pertaining to DEA'a
experience regarding peyote, please let me know.
Sincerely,
DAVID A. MELOCIK, DEA, Congressional Affairs.
STATEMENT OF GENE R. HAISLIP, DEPUTY ASSISTANT ADMINISTRATOR, OFFICE OF
DIVERSION CONTROL, DRUG ENFORCEMENT ADMINISTRATION
Chairman Richardson and Members of the Subcommittee:
The Drug Enforcement Administration (DEA) appreciates the opportunity to
comment regarding H.R. 4230 "American Indian Religious Freedom Act of
1994." This bill seeks to statutorily provide for the traditional use
of peyote by Indians for religious purposes.
Almost 25 years ago when Congress began hearings pertaining to the
Controlled Substances Act (CSA) they decided that the traditional,
historic use of peyote by members of the Native American Church (NAC) as
a sacrament in traditional religious ceremonies warranted a specific
exemption. Congress determined, to be consistent with past Federal
practice, this exemption should be specified in regulation rather in
law. Consequently, an exception was created for the NAC to use peyote
for religious purposes. Although the NAC is not defined in the subject
regulations, the members of this church are required to be Native
American.
The regulation has worked very well for both DEA and the NAC with only
minor difficulties from time to time concerning the natural supply of
the drug and the difficulties obtaining peyote outside of the area where
it grows locally. In fact, our experience over the years in enforcing
this regulation has revealed no particular problems of abuse of this
substance by the NAC or its members. Unfortunately there will always be
individuals who seek to circumvent the regulations for their own
purposes and on occasion, DEA has dealt with groups who have attempted
to expand the exemption to authorize the use of peyote or other
controlled substances in what they claimed to be religious ceremonies.
On occasion, peyote, who primary active ingredient is mescaline, a
hallucinogen similar to LSD, has been found in the illicit traffic. It
has not been reported by DEA, State or local enforcement agencies to be
anything other than a sporadic problem. Despite the fact that the
regulation allows for the legal use of the drug and the registration of
legitimate distributors, DEA at this time is not aware of the diversion
of the drug to any illicit market.
Although we at DEA feel that the regulation that has been in place for
almost 25 years has worked well, we would prefer a statutory exemption
over an administrative exemption. We have reviewed H.R. 4230 and could
support the bill if amended to: (1) restrict the use, possession, or
transportation of peyote to bona fide traditional ceremonial purposes
only; and (2) to make clarifying amendments to address public safety
concerns.
DEA and the NAC have maintained a close working relationship to allow
the use of peyote for religious ceremony without diversion or abuse.
DEA believes the passage of this legislation will serve to strengthen
the uniform application throughout all of the states without reprisal to
NAC members of this religious exception. Mr. Chairman, this concludes
my statement. I will be pleased to answer any questions that you may
have.
excerpted from material contributed to the Library by Tom Leonard, a
member and director of the Ponca Chapter of the Native American Church
of Oklahoma.
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