"(6) the United States has a unique and special historic trust responsibility for the protection and preservation of Indian tribes and cultures, and the duty to protect the continuing cultural cohesiveness and integrity of Indian tribes and cultures;

"(7) it is the duty of the United States to protect and preserve tribal values and standards through its special historic trust responsibility to Indian tribes and cultures;

"(8) existing Federal and State laws, regulations and judicial decisions are inadequate to fully protect the ongoing traditional uses of the peyote cactus in Indian ceremonies;

"(9) general prohibitions against the abusive use of peyote, without an exception for the bona fide religious use of peyote by Indians, lead to discrimination against Indians by reason of their religious beliefs and practices; and

"(10) as applied to the traditional use of peyote for religious purposes by Indians, otherwise neutral laws and regulations may serve to stigmatize and marginalize Indian tribes and cultures and increase the risk that they will be exposed to discriminatory treatment. "SEC. 202. TRADITIONAL USE OF PEYOTE.

"(a) Notwithstanding any other provision of law, the use, possession or transportation by an Indian of peyote for bona fide ceremonial purposes in connection with the practice of a Native American religion by an Indian is lawful and shall not be prohibited by the Federal Government or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.

"(b) Nothing in this section shall prohibit such reasonable regulation and registration of those persons who import, cultivate, harvest or distribute peyote as may be consistent with the purpose of this title.

WRITTEN TESTIMONY OF

ED RED EAGLE, JR.

VICE-PRESIDENT

NATIVE AMERICAN CHURCH OF OKLAHOMA

PRESENTED TO

HOUSE SUBCOMMITTEE ON NATIVE AMERICAN AFFAIRS CONGRESSMAN BILL RICHARDSON, CHAIRMAN

CONCERNING

AMERICAN INDIAN RELIGIOUS FREEDOM ACT AMENDMENTS: THE TRADITIONAL USE OF PEYOTE

PRESENTED IN CONJUNCTION WITH

A HEARING HELD IN

WASHINGTON, D.C.

ON

MARCH 16, 1993

STATEMENT

Congressman Richardson, members of the Subcommittee, thank you for this opportunity to submit testimony on a most important matter. My name is Ed Red Eagle, Jr., and I reside at Route 1, Box 1419, Barnsdall, Oklahoma. I am a member of the Osage Tribe, and I am the Vice-President of the Native American Church of Oklahoma. The Native American Church of Oklahoma supports the draft amendments to AIRFA regarding the traditional use of peyote as they have been proposed by the AIRFA Coalition on the Senate side in conjunction with Senator Inouye. There are seventeen chapters of

the NAC of Oklahoma, made up of members of 21 Oklahoma tribes. There are perhaps 3,500 Indians in our state affiliated with our church.

At the 1992 Annual Meeting of the NAC of Oklahoma, eleven of those seventeen chapters were represented. All those in attendance voted unanimously to endorse this proposed legislation in a form consistent with the substance and definitions of the bill that has been circulated in draft form. The NAC of Oklahoma has also formally joined the broad-based Coalition that is advocating for passage of this bill.

As an officer of the Native American Church of Oklahoma, however, I must tell you that not all of our chapters support the language of the draft bill. There are a few chapters of our church who would prefer an approach whereby the definition of "Indian" is linked to a 25% Indian blood quantum rather than to tribal membership. However the majority of our church favors a definition

linked to tribal membership.

As with any other religious group,

not all the members agree on everything.

There will be testimony submitted for the written record of these Hearings as to the long and rich history of this Native American Church way of life in Oklahoma and elsewhere; as well as testimony of the long and ugly history of oppression this church has faced at times in Oklahoma and elsewhere since the last century. I am attaching for the record a research article written by Virgil Franklin which serves that purpose.

But today I would like to take these few minutes to describe some of the present day problems we are facing related to what the Supreme court did to us in the Smith case of 1990.

1. The legal protection for our sacrament in Oklahoma is not found in a statute. It was assumed to be in the First Amendment, and that was affirmed by the Oklahoma courts in Whitehorn v. Oklahoma in 1977, which found specifically that this way of worship was protected by the Free Exercise Clause. However, since the Smith decision in 1990, no one knows the state of the law in Oklahoma. This has created tremendous confusion and hardship in our state as evidenced by the following examples:

2. In 1991, because of Smith, an attempt was made to get a law passed in the Oklahoma legislature to protect our sacrament. But because of the fear and misunderstanding created by Smith there was no agreement on what that law should or could now say. The result was that no law was passed.

3. Also in 1991, an older life-long member of the NAC in Oklahoma was arrested on a state felony charge for his use of peyote in the Native Americar Church. After many months, considerable expense and lengthy pre-trial negotiations, the case was ultimately dismissed. But that experience caused a great deal of anxiety for that church member who could have been sent to prison for ten years simply for exercising the religion of his life. And it also caused a great deal of anxiety for the many members of the NAC throughout the state. We do not know who might be arrested next by local, county or state officials.

His family has a

4. As another example of the immediate need for this uniform national law, as recently as January of 1993, a member of the Shawnee Tribe of Oklahoma who, along with his family, is also a member of our church enlisted in the Navy. history of serving in the armed services. During his processing at a Naval base in Florida, he was asked routine background questions. When he informed the processing officers of his membership in the Native American Church, he was summarily kicked out and sent home. 5. Finally, because of our geographical location many NAC chapter representatives from other states pass through Oklahoma when making a religious pilgrimage to the Peyote Gardens in Texas. Given the problems I've described, they may not feel free to travel through our state... they might be charged with a state felony while simply and humbly engaging in a religious practice taught to them by their parents and grandparents. These are good devout people sent by their local church chapters to Texas to lawfully