Thus, as exception to the virtual ban or any use of the drug conferred by its placement in Schedule I of the CSA was provided for in 21 CFR 1307.31. This paragraph provides for the nondrug use of peyote in bona fide religious ceremonies of the Native American Church. Such use is not subject to the applicable law regarding Schedule I controlled substances. Although the NAC is not defined in the regulation, the members of this Church are required to be native Americans.

I believe the Federal regulation has worked and is working effectively not only from the viewpoint of DEA, but also from the viewpoint of the NAC. For many years DEA has had an excellent relationship with this group, and I am not aware of any instance in which the NAC has expressed concern about this regulation restricting supply to Church members. In fact, the only complaints we have heard from the NAC have concerned short natural supply of the drug and difficulty in obtaining peyote outside the areas where peyote grows indigenously.

A problem DEA has experienced in the past that other groups have attempted to expand the exemption to authorize their use of peyote or other controlled substances in what they claim to be religious ceremonies. In fact, the NAC advised us of a non-Native American individual seeking to establish a chapter of the NAC in his Northeastern state in order to legitimize his use of and potential trafficking in peyote. Unfortunately, there will always be individuals who seek to use any loopholes in the law of their own purpose. It has been DEA's position to strictly adhere to the limited exception of nondrug peyote use as defined in CFR 1307.31, that is, to allow such use only by NAC members. To do otherwise might ultimately discredit those individuals in the NAC who truly have a valid claim to historical cultural use of this drug for religious purposes.

Mr. Chairman, this concludes my statement. I will be pleased to answer any questions that you may have.

Mr. RICHARDSON. Thank you, Mr. Haislip.

The chair recognizes the ranking minority member.

Mr. THOMAS. Thank you, Mr. Chairman.

Thank you, sir. That is very much to the point.

I don't have a feel for the volume you are talking about. Is it a very small amount? How many people are involved? Do you have any idea?

Mr. HAISLIP. Well, there are certainly tens of thousands of people involved in the Native American Church and its activities. I don't really have an exact count, but I have some idea because, as I have said, this cactus only grows in the State of Texas and we are required to register those who supply the cactus for these religious purposes. I can tell you that we have registered now, I think, eight individual suppliers who are licensed, who are permitted under the law to supply this cactus in this way. So I think that shows that the number of people involved is not a very great number, probably tens of thousands.

Mr. THOMAS. Do you have problems with people who are suppliers apparently that are not registered, or has that been a problem? Mr. HAISLIP. The only problems that we have had are with a few individuals over the years who have actually harvested the cactus

themselves for distribution in the illicit drug traffic having nothing to do with the Native American Church or, as far as I'm aware, nothing to do with any of its members. These were not people who were operating in that fashion or for those reasons, and we haven't had many such cases, but we have had a few.

Mr. THOMAS. And you have brought action against those?
Mr. HAISLIP. Yes, we did.

Mr. THOMAS. I suppose the difficulty is in defining an exception. Are there other kinds of substances that people would bring to you to utilize this same opportunity for an exception?

Mr. HAISLIP. Well, certainly the effort has been made before on the part of various individuals seeking such exceptions for all different kinds of drugs. As I say, this drug has effects somewhat similar to LSD. But here I think it is important to note that the exception is grounded in a very long-standing tradition. I don't really think that people outside of that particular milieu really have any basis to make claims for such exception because they have no such traditions, and in fact, we regard those claims as entirely bogus.

So I think here what we have is a unique circumstance relating to the cultural history of a particular group of Americans, and I think it is not difficult to identify that cultural history and that group of Americans.

Mr. THOMAS. Some Jamaicans, I understand, have made an effort to have an exemption for some kinds of drugs. Are you familiar with that?

Mr. HAISLIP. That particular I am not familiar with at the moment, but of course the Rastafarian sect, some of them have been users of cannabis, and I suspect that they have made such claims in the past.

Mr. THOMAS. So you are comfortable with the fact that you can identify the legitimate exemption here and not let that extend itself.

Mr. HAISLIP. Well, I am quite comfortable with our regulation, which is quite specific, and it has existed now for quite a long time, over 20 years in its present form and with very little change. We have had no problem in administering that regulation, and as I say, I am pleased also to report, I don't believe that the members of the Native American Church have had any problem with our administration either.

Mr. THOMAS. Do you think that is what we will hear from the panelists this morning?

Mr. HAISLIP. I believe it is.

Mr. THOMAS. Thank you very much, and thank you, Mr. Chair

man.

Mr. RICHARDSON. The gentleman from South Dakota.

Mr. JOHNSON. Are there Native Americans or tribes that historically have not used peyote that have adopted this, and can they do that under your regulations? Are there tribes in other parts of the country that

Mr. HAISLIP. I think this is a little more difficult to answer with precision. I would like to point out again the fact that this cactus grows only in the State of Texas. The traditional use has been among the Native Americans of the southwestern United States

and areas adjacent to that. The cactus in past history would not have shown up in some other parts of the country because of the great distance involved.

This does not seem to represent a problem to us. Certainly with the mobile society that we have, it is entirely possible that people who have their cultural heritage or cultural roots in one part of the country may now reside actually in another. So I think we can't dismiss that possibility.

But as a practical matter at least, we haven't experienced any problems, we haven't experienced any illicit traffic deriving from this kind of a source, we haven't seen any problems, but I can't give you exact answers.

Mr. JOHNSON. You haven't seen efforts to organize this particular religious practice outside the geographic areas for it?

Mr. HAISLIP. Yes, there is one case that comes to mind, where there was an attempt to organize in the form of some sort of affiliation or branch of this church. I believe that was by non-Native Americans, by the way, and I don't think it was a legitimate or bona fide exercise. I think it was another effort to seek to obtain religion as a color or disguise for drug abuse, and in the particular case I have in mind that was wisely rejected by the church authorities here. But that was one case. There may be others as well.

Mr. JOHNSON. Are practitioners of this religion which uses peyote permitted to have use of peyote if they are incarcerated in a Federal facility?

Mr. HAISLIP. I would have to say that that is an area we have not addressed before or felt the necessity to address. I think it would be better if you addressed that kind of question to a representative from the Bureau of Prisons because that is a special type of environment, special kind of problem, and I wouldn't feel comfortable in responding without their expertise.

Mr. JOHNSON. Thank you.

I have no further questions.

Mr. RICHARDSON. I thank the gentleman.

Mr. Haislip, let me see if I understand the main thesis of your testimony. Is it the DEA's opinion that the use of peyote by the Native American Church is not related to the serious drug problem in this country?

Mr. HAISLIP. That is correct. We have no evidence that it is.

Mr. RICHARDSON. Have you taken a position as to whether or not regulation of the Controlled Substances Act pertaining to the Native American Church should be written into law? As you know, this is one of the pieces of legislation that is currently floating around. Have you taken an official position?

Mr. HAISLIP. We have not taken a position.

Mr. RICHARDSON. Have you been asked to take one?

Mr. HAISLIP. I think we have seen drafts of previous legislation, but at this point we are not in a position to address anything specifically because we don't have anything specific before us.

Mr. RICHARDSON. Well, let me say that this subcommittee would want to work with you as we move ahead with this legislation. It is our intent to move ahead a piece of legislation, and as I said earlier in my opening statement, the cooperation of your agency has been noted, and we appreciate it.

You did say in your testimony that there was no problem at this stage in the federal regulation of peyote. Is that correct?

Mr. HAISLIP. Yes, that is my opinion. I know of no problems with regard to it, and I would only say about legislation that, if there is such legislation, it would be useful to study our regulation because we have had no problems with it. I think although we want to be sure to protect the bona fide interests of this particular group of Americans in the manner that I have spoken of, we do want to be careful not to create, by accident, loopholes which others might seek to take advantage of under color of religion or in some other fashion.

Mr. RICHARDSON. Great. Well, Mr. Haislip, thank you very much for appearing this morning, and we appreciate the efforts of you and your agency. We will keep you apprised of our progress, and again, our thanks for your cooperation.

Mr. HAISLIP. Thank you, Mr. Chairman and members, and we will certainly be pleased to work with you in the future in any way

we can.

Thank you.

Mr. RICHARDSON. The subcommittee will now hear the second panel, and I would ask Mr. Craig Dorsay, Attorney at Law, from Portland, Oregon to step up; Mr. Douglas Long, the President of the Native American Church of North America, Osseo, Wisconsin; Mr. Robert Whitehorse, President of the Native American Church of Navajoland, Cortez, Colorado; Mr. Gus Palmer, an elder of the Kiowa and Apache Chapter, Native American Church, Anadarko, Oklahoma; and Mr. Palmer will be accompanied by Mr. Henry Ware, a member of the Kiowa Chapter of the Native American Church, Anadarko, Oklahoma.

Gentlemen, welcome to the subcommittee.

As you know, we ask that you summarize your statement in five minutes because we get the most out of our questions that we ask you. We want to start first with Mr. Craig Dorsay.

Mr. Dorsay, welcome. Please proceed.

PANEL CONSISTING OF CRAIG DORSAY, ATTORNEY AT LAW, PORTLAND, OR; DOUGLAS LONG, PRESIDENT, NATIVE AMERICAN CHURCH OF NORTH AMERICA, OSSEO, WI; ROBERT WHITEHORSE, PRESIDENT, NATIVE AMERICAN CHURCH OF NAVAJOLAND, CORTEZ, CO; AND GUS PALMER, ELDER, KIOWA AND APACHE CHAPTER, NATIVE AMERICAN CHURCH, ANADARKO, OK, ACCOMPANIED BY HENRY WARE, MEMBER, KIOWA CHAPTER, NATIVE AMERICAN CHURCH, ANADARKO, OK

STATEMENT OF CRAIG DORSAY, ESQ.

Mr. DORSAY. Thank you, Congressman.

I don't know if I have a lot to add to the written statement I have submitted. I was involved in the Employment Division v. Smith case. That case had a 5- or 6-year history, and I only came in at the very end of the case in the second review by the U.S. Supreme Court.

As you are aware, in that decision the majority held that the Native American Church was not subject to the protections of the

First Amendment, and Justice Scalia left protection of Native American religion specifically to Congress and said that Congress does have the authority to pass legislation if it so wishes to protect Native American and other religions.

I have practiced Indian law for close to 20 years, and it is my opinion that there is a close connection between Native American religion and the protection of tribal sovereignty, and the Congress does have specific authority to take action as in the pending legislation that will protect particularly the Native American Church and other Native American religions.

The experience in Oregon since the Smith case has been somewhat difficult. After the Smith case came down, there was introduction of legislation in Oregon to protect the Native American Church, but what we ended up with was only a bill which provided an affirmative defense to a prosecution for possession and use of peyote. So what that means is, you still have to be charged and prosecuted with a criminal violation, and then if you use bona fide use, religious use, of peyote as a defense, then you will not be convicted. It still subjects members of the church to the stigma of prosecution in the State.

It also does not take care of the situation that led to the Smith case, which was the denial of unemployment compensation because the U.S. Supreme Court ruled that you can be denied unemployment compensation if you engage in an illegal act, and possession or use of peyote is still an illegal act, so an employer can, with impunity, fire a member of the church from his or her employment, and then the State will deny that person unemployment benefits even if they have engaged in the use of peyote for bona fide religious purposes.

In the Smith case, we attempted to resolve the problem by getting a State exemption from the Oregon Pharmacy Board for religious use of peyote. That move was blocked by the Attorney General of Oregon on the basis that an exemption would be unconstitutional, one, if it selected out only the Native American Church instead of all users of peyote; and, two, if it selected out peyote and did not include all hallucinogenic substances.

We believe that both those objections to the administrative rule were improper, but his ruling on that issue controlled while the Smith case was going on, and it appeared to be more of a strategic move than to have much of a legal basis.

That administrative rule has been resubmitted, but again, it still appears to be blocked based on whether you could give an exemption just for the Native American Church and not for all users of peyote, but that is the State's interpretation of the law, and they have not been that kind towards Indian rights and Indian affairs in general. So unless there is Federal protection there will continue to be problems in Oregon. That is our opinion.

Thank you.

[Prepared statement of Mr Dorsay follows:]

WRITTEN STATEMENT OF CRAIG J. DORSAY, ESQ.

My name is Craig J. Dorsay. I am the attorney who represented Al Smith in the United States Supreme Court case Employment Division v. Smith, 494 U.S. 872, 108 L.Ed.2d 876, 110 S.Ct. 1595