(1990), which held that the right of Native Americans to practice the peyote religion is not protected against state infringement by the United States Constitution.

Because of the short time between when I was contacted about appearing at this hearing and today, I am restricting my written comments to a few points. The chronology of the Al Smith case is exceedingly tortuous and complex. Rather than repeating that history, I refer to you to the law review article I wrote shortly after the decision for the University of Missouri-Kansas City Law Review entitled "Employment Division v. Smith: Just say 'No' to the Free Exercise Clause." I did not choose the title of this article. I have attached a copy of it for the Committee's record. The article describes in detail the chronology of the case, which had continued on for over five years before I was asked to represent Al Smith in the second United States Supreme Court review of the case.

The Al Smith decision is quite clear and does not need additional explanation from me when such decision has been provided by local scholars in the field. I have two points to make about my experience in the case. The first is the complete lack of respect accorded to Native American religion by the dominate non-Indian society, from State law enforcement officials to Supreme Court justices. The sad thing about this attitude is the lack of comprehension these persons had about the degrading effect of comments they made. For example, the Attorney General of Oregon was shocked at the level of public opposition he encountered when he persisted in prosecuting this case, when he expected all of the "mainstream" churches to agree with his position that the Native American Church was an extreme religion that did not deserve protection. His attitude changed dramatically when representatives of large Christian denominations informed him that there was no theological difference between their churches and the Native American Church that he was pursuing vigorously.

Statements made about the Native American Church or comparisons made to other churches illustrate the ethnocentrism displayed by the government in this case. The State's brief in the case made a point of comparing the Native American Church to religions that used poison snakes or engaged in self-mutilation. Justice Scalia during oral argument compared the Church to the practice of human sacrifice in the Aztec religion at the time of the Spanish conquest. The State made unfounded assertions about the dangers of ingesting peyote and the amount of peyote taken at one time, relying on one or two anecdotal comments and extending these unverified statements to the entire religion.

For me, the most startling example of this attitude occurred during oral argument in the case before the Supreme Court. Attorney General Forhnmayer was arguing the dangers of allowing any exemption for peyote and the Native American Church, relying on the argument that no analytical distinction could be drawn between peyote and drug based religions which used marijuana, heroin, LSD and other illegal substances. He was arguing that if you allowed Indians to use peyote, you would have to allow all persons to use all kinds of drugs under all kinds of conditions. Justice Stevens then asked the Attorney General whether the use of alcohol in religious ceremonies presented a similar example, such that the use of

alcohol and its ingestion by minors in religious ceremonies could be outlawed by a neutral law prohibiting such use. Frohnmayer replied that alcohol presented a completely different question because alcohol was not classified as a dangerous drug, and that alcohol presented a religious accommodation argument of an entirely different order because the legislature provided a "religion indifferent" exemption for the use of sacremental wine during Prohibition. I was flabbergasted by the ignorance and arrogance displayed by these comments. They prove my ethnocentrism argument. The only reason alcohol is not treated as a "drug" thousands of times more dangerous than peyote is because the majority, non-Indian society tolerates its use and abuse. Hundreds of thousands if not millions of Native Americans (as well as all other citizens, not to mention priests) have been devastated by alcohol use in their families. I think it safe to say that none or very few Indians have been adversely affected by peyote. And of course the sacramental use of wine was protected during Prohibition by a religion "neutral" law; of course the Christian majority is going to act to protect its own practices. But to argue that there is an intellectually honest distinction between alcohol and peyote and to ignore the cultural bias inherent in the entire argument is beyond my comprehension. To give Justice Stevens credit, he did ask Mr. Frohnmayer whether the real constitutional difference between alcohol and peyote was not the fact that alcohol is associated with a better known religion. The second point I have to make about the Smith case is that if you thought Smith was bad, you haven't seen anything yet. From my experience in the case the majority of the Court, and particularly Justice Scalia, wanted to go further in dismantling protection for individuals under the First Amendment, but were prevented from doing so by a lack of votes. This is why I think Justice Scalia's scathing attack on Justice O'Conner's dissenting legal theory goes on at such length; I think he had depended on her for his fifth vote in a wider ranging opinion. Instead, the fifth vote was Justice Stevens, and the majority opinion follows Justice Steven's view of the First Amendment as set out in footnote three of his concurring opinion in United States v. Lee, 455 U.S. 252 (1982), an earlier First Amendment "accommodation" decision.

Now, of course, one of the dissenters in Smith, Justice Marshall, is gone and his replacement, Clarence Thomas, is much more likely to follow the views of Justice Scalia. We also have the perfect case, involving an animal-sacrificing religion which is unlikely to elicit much sympathy from the Court. See Church of the Lukumi Babalu Aye v. City of Hialeah. In this climate I would not be surprised to see an opinion directly overturning Wisconsin v. Yoder, 406 U.S. 205 (1972), which confirmed protection of the Amish religion. I would not even be surprised to see Cantwell v. Connecticut, 310 U.S. 296 (1940), the decision which applied the First Amendment of the United States Constitution to the States, limited or overturned. If this scenario plays out, statutory protection for Native American religious practices will be the critical lifeline preserving and protecting Native American religions.

In my opinion the Solarz bill does not go far enough. It reestablishes the compelling state interest balancing test as a matter of federal statutory law, but this standard may not protect Native

American religions. For example, Justice O'Conner, applying this test in the Smith decision, found that the legislative judgment contained in the law classifying peyote as a Class I Controlled Substance was enough to justify limitations on Native American Church practices. This test still leaves Native American religious practices under the control of subjective value judgments by nonIndian judges. Native American religious practices should not be subject to the permission of the dominant society.

In my opinion Congress clearly has the authority to enact legislation which singles out Native American religious practices for protection. Native American religions are such an integral piece of the identify of Indian tribes themselves, and of the expression of tribal sovereignty through the tribal government, that the proposed legislation clearly falls under the umbrella of legislation upheld as constitutional even though it singled Indians out for special treatment as rationally related to the protection of Indian tribes, sovereignty and tribal government. In the area of peyote and the Native American Church, there are a number of cases which upheld a special exemption for the Native American Church based on this principle. See Peyote Way Church of God v. Thornburgh, 922 F.2d 1210 (5th Cir. 1991). The Subcommittee would be justified in relying expressly on these opinions and the factual findings contained therein as the constitutional basis for enacting the present legislative proposal.

The final point I wanted to make in my written statement is to briefly discuss what has occurred in Oregon since the Smith decision. There have been no prosecutions of peyote use by Native American Church members. Attorney General Frohnmayer stated during the Smith case that he did not intend to prosecute bona fide use of peyote by members of the Native American Church no matter what the outcome of the Smith case, which led more than one Justice to ask Mr. Frohnmayer why he was bringing the case to begin with. Frohnmayer replied that it was the principle that was important. This was just another example of Indian rights being trampled for the convenience of an outside agenda.

Soon after the Smith opinion came out, the Oregon legislature passed legislation making bona fide religious use of peyote a statutory defense to possession or use of peyote. This legislation does not make peyote use legal; you can still be prosecuted but cannot be convicted. Obviously, religious use of peyote carries around the stigma of illegality. In addition, the legislation does not correct the problem which was the heart of the Smith case-unemployment benefits. Since the Court ruled that a State may deny unemployment benefits to someone engaged in "illegal" conduct, even if for religious reasons, a member of the Native American Church can still be fired from his job in Oregon for practicing his religion, even if it did not affect his or her job performance, and the State will deny that person unemployment benefits because he or she engaged in conduct prohibited by law. This is surely a sad result if persons can be denied benefits available to all other United States citizens only because they have engaged in conduct which is not familiar to the majority society.

This concludes my written remarks.I would be glad to answer any questions members of the Subcommittee or staff might have.

Mr. RICHARDSON. Thank you very much.

President Douglas Long, welcome to the subcommittee. Please proceed.

STATEMENT OF DOUGLAS J. LONG

Mr. LONG. Good morning, Mr. Chairman.

Members of the subcommittee, I am Douglas Long, a member of the Winnebago Tribe of Wisconsin and president of the Native American Church of North America. Thank you for allowing me to testify at this important hearing. I am pleased to offer testimony on behalf of the Native American Church of North America on the need for a new Federal law to protect freedom of worship by the estimated 250,000 members of the Native American Church of North America.

I have submitted 100 copies of my written testimony together with exhibits and ask that my written testimony be made a part of the hearing record. I will only summarize my written testimony today. I would like to cover two areas. First, I would like to give a background on the national efforts of America's Native American Church community to organize and address the religious crisis caused by the Smith decision. Second, I will state the reasons why the Native American Church of North America supports the need for a new religious freedom law along the lines that are being proposed by Senator Inouye.

Mr. Chairman, the Indian religious use of peyote has existed for 10,000 years. This ancient way of worship ranks among the oldest, largest, most continuously practiced indigenous religions in this hemisphere, predating the founding of this Nation. To achieve American legal status early in this century, beginning in 1918, Indians began to organize this peyote religion into formal, Statecharted church organizations using the general name of the Native American Church. Today, there are many major, autonomous Native American Church organizations, such as my nationwide organization, the Native American Church of North America, the Native American Church of Navajoland, the Native American Church of Oklahoma, of Wyoming, of Idaho, of South Dakota, and so on. Although our beliefs and practices are similar, we enjoy a diverse tribal religious community with autonomy in each organizations.

The Native American Church of North America is the only nationwide and international Native American Church organization. We were established in 1950. Today we have 46 affiliated chapters in 24 States, Canada, and Mexico. Our Native American Church estimate, according to low estimates, is 250,000.

Mr. Chairman, the Smith decision was devastating to our ancient church. It stripped us of all legal protection under American law and social policy. It created a loophole in the First Amendment for Indians. It created a heart-breaking human rights crisis in our tribal communities that is seen in a recent Oklahoma felony prosecution, courts martial law, employment discrimination, widespread fear among elders, and deep psychological scars among our young children.

As such, the Native American Church is deeply concerned about the frightening religious crisis caused by the Smith decision. The stark reality in our lives is that today, according to the Supreme

Court, America is no longer based upon freedom of worship, and this is intolerable. Furthermore, there is a need for a uniform national law protecting the sacramental use of peyote for religious purposes by Indians that essentially codified the existing administrative regulatory exemption of the U.S. Drug Enforcement Agency. And, by the way, I would like to thank the representative for his testimony from the DEA.

The DEA has an Indian religious exemption. So do 28 states. However, the exemptions are not uniform in their provisions or their protections, some of which are inadequate, and 22 states have no protection whatsoever. Attachment 6 to my testimony is a chart summarizing these laws and exemptions. Attachment 7 is a DEA letter to me supporting the need for a uniform law.

The Native American Church of North America strongly supports the need for a new religious freedom law. Attachment 2 is our resolution of support. Specifically, the Native American Church of North America supports the legislative proposal being developed by Senator Inouye protecting the religious use of peyote by Indians. Mr. Chairman, I respectfully urge you and the members of this committee to develop, sponsor, and champion identical, companion legislation in the House of Representatives to address this paramount human rights crisis facing American Indians today.

Since the 1990 Smith decision, Native American Church members, chapters, and organizations have been coordinating with each other in an unprecedented way to address this crisis. Attachment 3 is a 1990 Native American Church of North America resolution that established the Religious Freedom Project of the Native American Church. The purpose of this project, headed by Mr. Reuben Snake, is to inform our community about the Smith decision, to work with members, chapters, and organizations to develop support for the need for a legislative solution and develop specific legislation that can be supported by the Native American Church nationwide community, such as that being proposed by Senator Inouye. In short, our community is close to a unanimous view on the need for Federal legislation as any church could hope to be on a given issue.

Let me make one final closing point. The Native American Church is primarily concerned about the need to protect traditional religious use of peyote by Indians. However, the Native American Church is also deeply concerned about other religious issues being considered by this committee and by the Senate Indian Affairs Committee, such as religious use of eagle feathers, which plays an important role in the Native American Church beliefs and ceremonies; gathering of natural products from Federal lands in appropriate instances for religious purposes, such as tipi poles needed in our Native American Church ceremonies; and protection of sacred sites in appropriate instances.

In conclusion, Mr. Chairman and the members of the subcommittee, the Native American Church stands ready to work with you on urgently needed religious freedom legislation. We commend to the subcommittee the American Indian Religious Freedom Act amendments being developed by Senator Inouye and recommend that similar, companion legislation be sponsored by you. Time is long