The Supreme Bunch
of INjustuces
vs. Peyote
Part II of II
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[8]
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Exerpts from the following article analyzing the
effects the US Supreme Court ruling on the Native
American Church's use of peyote as being illegal:
Native American church members stripped of their rights under the
Constitution are now subject to the will of the legislative branch of
our state and federal governments. Not an enviable place for Indian
people; as a distinct racial and religious minority Indians have always
had an uphill struggle in the halls of Congress and elsewhere to have
their rights recognized and respected.
The legislative branch of any government is an exceedingly unusual
place for individuals to look to have their rights under the First
Amendment vindicated. Courts are traditionally looked to as protectors
of these rights, against majoritarian legislatures. Justice O'Connor,
in a separate concurring opinion which joined the result of the majority
but sharply criticized its method, reasoned that "the First Amendment
was enacted precisely to protect those whose religious practices are not
shared by the majority and may be viewed with hostility."
As a result of "Smith," minority religions, in Justice Scalia's
opinion, may be at a disadvantage in the political arena. But that is,
in his estimation, "an unavoidable consequence of democratic
government," preferable to "a system in which each conscience is a law
unto itself." Justice Scalia had to strain to defend his decision,
citing the need to prevent "anarchy" in our democratic society. Indian
people simply want to be left alone in our society to worship the god of
their choice. Is that asking too much? The Court's decision in "Smith"
strips Indians of their pride and integrity, and makes many of them
criminals in the eyes of the law. Only history will judge the Court's
decision in "Smith;" but for now the remote specter of anarchy may very
well have been the preferred choice. [end of article; more to come]
[10]
The following article appeared in the Spring 1990 issue of "Native American
Rights Fund Legal Review", a publication of the Native American Rights Fund,
1506 Broadway, Boulder, CO 80302, and is reprinted here w/permission.
Supreme Court Deals Devastating Blow to Native American Church
by Steve Moore
On Tuesday, April 17, 1990, the United States Supreme Court struck a
gut wrenching blow to the religious lives of many of this country's
Native Americans, in a decision which invites the return to an era of
religious persecution one would hope a presumably enlightened and
tolerant society such as ours had left behind. In the case of "Oregon
Department of Employment v. Alfred Smith," Justice Antonin Scalia,
writing for a five member majority, and describing the First Amendment's
Free Exercise Clause as little more than a "negative protection accorded
to religious belief," held that a member of a religious faith may not
challenge under the free exercise clause of the First Amendment to the
United States Constitution a legislature's criminal enactment of
otherwise general application which produces infringement on a
particular religious practice. In the "Smith" case this amounted to a
challenge to the constitutionality of an Oregon drug law which the Court
interpreted as a general criminal prohibition on all uses of the drug
peyote, considered by Indian members of the Native American Church as an
essential sacrament, the physical embodiment of the Great Spirit.
The Native American Church, which claims over 250,000 members
nationwide, and additional Indian practitioners in Canada and Mexico,
and which can be traced back archaeologically several thousand years in
North America, was not absolutely destroyed or driven underground by the
Court's action. The Court did not go so far as to rule that any state
or federal law exempting the religious, sacramental use of peyote was an
unconstitutional establishment of religion, at the other end of the
religion clauses of the First Amendment. In the Court's terms, a peyote
exemption, while constitutionally *permitted*, is neither
constitutionally *required* or *prohibited*. A kind of constitutional
limbo-land for the Native American Church and its members.
[11]
In real terms the decision leaves the fate of the peyote religion to
the whim of majoritarian legislatures and Congress. Eleven states
currently have exemptions on the statute books protecting the religion;
another twelve tie their exemption to a federal Drug Enforcement Agency
regulation which rests on questionable foundation since the decision. A
small handful of states, notably California and Nebraska, in which are
located some of the largest Indian and Native American Church
populations, have based their protection on court decisions. The
others, and the federal government through Congress, have no statutory
or common law protection. Indian reservation lands will provide some
safe haven from possible prosecution, given the particular Public Law
280 configuration in any given state, but problems of transportation of
the sacrament into Indian country through "illegal" territory will
reduce peyote ceremonies to complex and dangerous liaisons.
Native American church members stripped of their rights under the
Constitution are now subject to the will of the legislative branch of
our state and federal governments. Not an enviable place for Indian
people; as a distinct racial and religious minority Indians have always
had an uphill struggle in the halls of Congress and elsewhere to have
their rights recognized and respected.
The legislative branch of any government is an exceedingly unusual
place for individuals to look to have their rights under the First
Amendment vindicated. Courts are traditionally looked to as protectors
of these rights, against majoritarian legislatures. Justice O'Connor,
in a separate concurring opinion which joined the result of the majority
but sharply criticized its method, reasoned that "the First Amendment
was enacted precisely to protect those whose religious practices are not
shared by the majority and may be viewed with hostility."
A noted scholar of Indian law and philosopher, Felix Cohen, was quoted
several decades ago as saying: "Like the miner's canary, the Indian
marks the shifts from fresh air to poison gas in our political
atmosphere; and our treatment of Indians, even more than our treatment
of other minorities, reflects the rise and fall in our democratic faith
...." Cohen's words become even more prophetic after the Court's
decision in "Smith." The "Smith" decision may perhaps portend even
greater persecution for other forms of Indian religious expression.
Examples which come to mind include: the wearing of long hair by Indian
students in public schools, and by Indian prisoners in federal and state
prisons; missing school on a regular basis for cultural/religious
ceremonial purposes; the taking of game by Indians out season, when not
otherwise protected by treaty; burning wood to heat rocks for sweat-
lodge ceremonies, when burning is otherwise outlawed by local ordinance
during times of high pollution; and body piercing as part of the Sun
Dance ceremony. If these forms of religious expression are otherwise
prohibited by general criminal laws, the First Amendment no longer
provides a basis from which to claim protection from religious
infringement. As with peyote use, reservation boundaries will provide a
buffer from the application of state law, except where Public Law 280
legitimizes intrusion.
As a result of "Smith," minority religions, in Justice Scalia's
opinion, may be at a disadvantage in the political arena. But that is,
in his estimation, "an unavoidable consequence of democratic
government," preferable to "a system in which each conscience is a law
unto itself." Justice Scalia had to strain to defend his decision,
citing the need to prevent "anarchy" in our democratic society. Indian
people simply want to be left alone in our society to worship the god of
their choice. Is that asking too much? The Court's decision in "Smith"
strips Indians of their pride and integrity, and makes many of them
criminals in the eyes of the law. Only history will judge the Court's
decision in "Smith;" but for now the remote specter of anarchy may very
well have been the preferred choice. [end of article; more to come]
[13 of 13]
STATEMENT FROM PACIFIC NORTHWEST CHURCH LEADERS WHO SUPPORT INDIAN RELIGIOUS
RIGHTS Re: Employment Division, State of Oregon v. Al Smith, Galen Black,
88-1213
The recent U.S. Supreme Court decision regarding the sacramental use of
peyote in Native American religious rites is unfortunate and deeply
disappointing. We support the right of Native Americans to practice their
religion as they have for centuries. We concur with Justice Harry Blackmun,
who writing for the dissent, called the decision a "wholesale overturning of
settled law concerning the religious clauses of our Constitution." The
decision jeopardizes the fundamental right of all citizens to exercise
freedom of religion free from government restraint. We will continue to
work with Native Americans to help them protect their religious rights.
The Most Rev. Raymond G. Huthausen Archbishop of Seattle Roman Catholic
Archdiocese of Seattle
The Right Rev. Vincent W. Warner, Bishop Episcopal Diocese of Olympia
The Most Rev. Thomas Murphy, Coadjutor Archbishop Roman Catholic Archdiocese
of Seattle
The Rev. John Boonstra, Executive Minister Washington Association of
Churches
The Rev. Calvin D. McConnell, Bishop United Methodist Church Pacific NW
Conference
The Rev. W. James Halfaker, Conference Minister Washington-Idaho Conference
United Church of Christ
The Rev. Lowell Knutson, Bishop NW Washington Synod Evangelical Lutheran
Church In America
The Rev. Dr. William B. Cate, President Director Church Council of Greater
Seattle
The Rev. Gaylord Hasselblad, Executive Minister
American Baptist Churches of the Northwest
These church leaders issued an apology to Indians that was carried in the
Winter 1988 NARF Legal Review
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