Supreme Court's decision in Smith.

Because there is no proof of harm to Native Americans who use peyote sacramentally, the DEA regulation exempting NAC members from prosecution under it has remained in force. Because there is no proof of harm to Native Americans who use peyote sacramentally, the "compelling interest" test could not reasonably be invoked to curtail NAC religious freedom. In deciding Smith, the Supreme Court announced that as long as laws are neutral and generally applicable, governments no longer need to justify abridging religious freedom.

The notion that the listing of peyote as a Schedule 1 Controlled Substance in the 1970 Controlled Substances Act is a neutral and generally applicable law is questionable. For the NAC, whose sacrament may now be banned, any claim that anti-peyote laws are neutral provides little consolation. The truth is that the overwhelming majority of peyote used today is eaten as a sacrament by members of the NAC. Without national legislation exempting sacramental peyote use from prosecution under allegedly neutral and generally applicable state laws, the effect of laws banning peyote use would be discriminatory.

Prior to the Smith case lawmakers in some 27 states and drafters of the federal regulation protecting sacramental peyote use from anti-drug legislation had assumed the exemption for the NAC was constitutionally required. But the Smith decision declared that although it is Constitutionally permissible to exempt the NAC's religious use of peyote from anti-drug laws, it is not Constitutionally required. Thus individual state legislatures can

now ban sacramental peyote use of NAC members whenever they see fit. DEA officials familiar with NAC rituals have no desire to dispense with the NAC's regulatory exemption. They favor national legislation which grants the NAC a specific statutory exemption for their sacramental use of peyote. Currently 27 states have an exemptive law protecting the religious use of peyote by NAC members.

The Smith decision clearly threatens NAC religious liberty. It also heralds a chilling curtailment of religious freedom for all Americans. Accordingly, an unusually broad coalition of America's churches feel their own religious freedom is jeopardized by the precedent set in Smith. Led by Congressman Steven Solarz (NY), they have persuaded over 125 Representatives to co-sponsor legislation to reinstate the "compelling interest" test for freeexercise claims against a federal, state or local authority. Since the Smith decision, the Amish in Minnesota have been forced to comply with state laws requiring them to place bright orange reflectors on their buggies. Jews in Michigan, and Laotian immigrants (of the Hmong faith) in Rhode Island, have been forced to allow the state to perform autopsies on their sons. Religious practices long considered safe are imperiled.

The Occupational Safety and Health Administration on the basis of Smith canceled an exemption from wearing hard hats dating back for many years, that had been granted to Old Amish and Sikhs (Franklin 1991).

Because the Smith decision discarded the "compelling interest" test, there is now no justification for exempting sacramental use of wine from prosecution under "neutral, generally applicable laws" outlawing alcohol.

WHAT THE NAC WANTS CONGRESS TO DO

Passage of the proposed Religious Freedom Restoration Act advocated by the Solarz coalition is supported by the NAC. The NAC recognizes, however, that a specific statutory exemption for sacramental peyote use is needed to protect NAC religious liberty. In the 1964 California Supreme Court case, People vs. Woody, the court relied on the "compelling governmental interest" test of religious freedom cases which had just been proclaimed in 1963 by the U.S. Supreme Court in Sherbert vs. Verner. The California high court ruled that NAC members had a First Amendment right to use peyote reasoning that:

The

[T]he right to free religious expression embodies a
previous heritage of our history. In a mass society,
which presses at every point toward conformity, the
protection of a self-expression, however unique, of the
individual and group becomes ever more important.
varying currents of the subcultures that flow into the
mainstream of our national life give it depth and beauty.
We preserve a greater value than an ancient tradition
when we protect the rights of the Indians who honestly
practiced an old religion in using peyote one night at a
meeting in a desert hogan near Needles, California.
People v. Woody, 394 P.2d 813, 821-22.

That California Supreme Court decision was made by justices whose orientation differed from those who sit on the current U.S. Supreme Court. In fact, some members of Congress and legal analysts speculate that even if the "compelling state interest" test abandoned in the Smith case were to be restored by passage of

the Solarz bill, today's U.S. Supreme Court would still rule against the NAC (Fikes 1992: 221).

To safeguard the religious freedom of the NAC either of two federal laws could be amended: 1. The American Indian Religious Freedom Act of 1978, Public Law 95-441, could provide specific statutory protection for sacramental peyote use of Native Americans by incorporating the existing regulatory exemption found at 21 C.F.R. $1307.31. 2. The Controlled Substances Act of 1970, Title 21 $841 can be amended to specifically incorporate the existing C.F.R. exemption.

The NAC is confident that Congressional hearings featuring expert testimony on the historical, religious, anthropological and scientific aspects of sacramental peyote use among NAC members will amply justify passage of national

legislation specifically

protecting the NAC's religious freedom. We stand ready to help Congress renew this country's commitment to promoting freedom of religion by allowing all its citizens to worship, in their own manner, the Creator who granted each of us those inalienable rights whose defense gave birth to this great nation.

TREATING FIRST AMERICANS AS FULL AMERICANS

NAC members feel their manner of worshiping the Creator is proper and worthy of the same First Amendment protection which has always been extended to immigrant-American religions (e.g., Christianity, Judaism). But for First Americans the right to

worship their Creator is also an issue of self-determination. The 371 treaties ratified between sovereign Native American nations and

the U.S. Senate indicate that Native Americans enjoy a unique legal and political status. After the era of treaty-making ended, in 1871, the special status of first Americans was acknowledged in the "trust responsibility" the federal government proclaimed it would exercise over Indian lands. Because Native Americans are now simultaneously U.S. citizens, and members of semi-sovereign nations, their right to worship with a sacrament illegal for immigrant-Americans has been protected by some 27 states and by DEA regulations. The treaties, the trust relationship the federal government has assumed with Native Americans, the uniqueness of Indian languages and religions, all suggest that legal accommodations to protect Indian cultures are justifiable and important. To treat Native Americans as if they were ordinary Americans denies U.S. history and abrogates legal precedents.

Prompt enactment of federal legislation exempting NAC members from anti-drug laws is required to live up to the obligation intrinsic to the federal government's special historic trust responsibility with Native American nations. Protecting Native American lands and culture is part of this trust responsibility. Failure to pass federal legislation protecting the rights of Native American peyotists violates the trust responsibility and may encourage states to pass and enforce laws which will coerce Native Americans into assimilating into the culture created by immigrantAmericans.