3 Jul 1994
For anyone who's interested, I'm reposting a discussion from one of
our local BBS:
DAVE: Well, I can't help you for your case, but I think the reason
that the indians recieve an exemption from the drug law is that they
aren't official citizens. I think the indian reservations are also
considered territories, not official, claimed land. Please, correct
me if I'm wrong. Thanks for the reply.
You raise some interesting and valid points. The various circuits of
U.S. Courts of Appeals haven't been able to agree on the reason for
the exemption of the sacramental use of peyote from the drug laws,
and the U.S. Supreme Court has never resolved the issue, although
Congress has considered the issue (once in 1965, again in 1978, and
again in 1993). Your view, that the exemption is tied to the special
status of Native Americans as foreign citizens of their respective
reservations, has been articulated by two courts, that I know of.
The first was in U.S. v. Warner, 595 F.Supp. 595 (D.N.D. 1984),
where a couple of white people were arrested for using peyote during
a Native American Church ceremony. After a pre-trial motion to
dismiss on Free Exercise of Religion grounds, the court ruled that
the exemption only applied to members of the Native American Church.
The bylaws of the Church state that only Native Americans, of at
least one quarter Native American ancestry, may belong to the Church.
However, at trial, the jury could not see any reason for making such
a distinction, and the Warners were acquitted.
The second ruling was in Peyote Way Church of God v. Thornburgh, 922
F.2d 1210 (5th Cir. 1991). Peyote Way Church was formed by former
members of the Native American Church who did not agree with the
Native American ancestry requirement and wanted to accept all races
into the Church. In that case, the court ruled that the exemption
was based on the special political status of Native Americans, not on
the free exercise of religion, and that only Native Americans could
use peyote legally (the court didn't explain why they had to belong
to a church to get the exemption).
Two other courts have ruled that the exemption cannot be limited to
Native Americans. Kennedy v. Bureau of Narcotics and Dangerous
Drugs, 459 F.2d 415 (9th Cir. 1972); and Native American Church of
New York v. United States, 468 F.Supp. 1247 (S.D.N.Y. 1979),
affirmed, 633 F.2d 205 (2nd Cir. 1980). When the exemption was
created in 1965, Congress attributed the exemption to a California
Supreme Court decision, People v. Woody, 394 P.2d 813 (Cal. 1964),
which held that the exemption was required because of the Free
Exercise of Religion Clause of the First Amendment. That same day,
the California Supreme Court ruled that the sacramental use of peyote
by nonmembers of the Native American Church was also constitutionally
protected. In re Grady, 394 P.2d 728 (Cal. 1964). Again, in 1978,
when Congress enacted the American Indian Religious Freedom Act, Pub.
L. 95-341, Aug. 11, 1978, 92 Stat. 469, Congress affirmed that the
peyote exemption was required by the First Amendment (no mention was
made of the unique political status of Native Americans). Indeed,
not all members of the Native American Church are non-citizens of the
United States, negating the theory that their status as non-citizens
is related to the exemption.
In 1990, the U.S. Supreme Court held that the peyote exemption was
not constitutionally required, only permissible. Employment Division
v. Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990). However, that
decision was so repugnant, that it was explicitly rejected in
November of 1993 when Congress passed the Religious Freedom
Restoration Act, Pub. L. 103-141, Nov. 16, 1993, 107 Stat. 1488.
I hope this gives you enough background to see that the special
status of Native Americans as non-citizens is not related to the
exemption of sacramental peyote use from the drug laws. The recent
decision involving the Kiryas Joel school district seems to cast
doubt on the constitutionality of the peyote exemption. The problem
with the Kiryas Joel school district is that it was defined by
religion, not geography. The same thing applies to the state and
federal peyote exemptions - they both name a specific religion, the
Native American Church, rather than giving all religions equal
Carl E. Olsen [email protected]
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