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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 the 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 treatment.

Carl E. Olsen carlolsen@dsmnet.com

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