[Congressional Record Volume 140, Number 41 (Friday, April 15, 1994)]
[Extensions of Remarks]
[Page E]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: April 15, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
INTRODUCTION OF LEGISLATION PROTECTING THE RELIGIOUS USE OF PEYOTE BY
INDIANS IN TRADITIONAL CEREMONIES
______
HON. BILL RICHARDSON
of new mexico
in the house of representatives
Thursday, April 14, 1994
Mr. RICHARDSON. Mr. Speaker, today I am introducing legislation to
make statutory the protection now provided by Federal regulation and
the laws of 28 States for the religious use of peyote by Indian
practitioners. This legislation to protect the first amendment right of
Indians to use peyote as a sacrament is made necessary by the ruling of
the Supreme Court of the United States in the case of Employment
Division v. Smith, 494 U.S. 872 (1990).
Peyote, the scientific name of which is Lophophora willaimsii, is a
small, spineless cactus that grows only in the Rio Grande valley of
Texas and northern Mexico. Native American religious use of peyote was
discovered by Spanish explorers in the 1600's and has continued to the
present. Such use exists today, largely through the Native American
Church of North America [NAC], among about 50 Indian tribes in the
United States. The NAC is the present-day embodiment of one of the
oldest religious traditions in the Western Hemisphere. Anthropologists
date the sacramental use of the peyote cactus among indigenous peoples
back 10,000 years. The contemporary NAC was first incorporated in
Oklahoma in 1918, and now has chapters in 20 States. About 250,000
American Indians are affiliated with the NAC.
Mr. Speaker, the Federal District Court in New Mexico, in the 1986
case of Toledo v. Nobel-Sysco, Inc., held that the religious use of
peyote was not illegal. The court found that--
Church peyote users believe that peyote is a sacred and
powerful plant. Peyote is seen as a medicine, a protector,
and a teacher. In terms used by other religions, peyote can
be called a sacrament, something which when eaten gives
awareness of God. The use of peyote is central to the Native
American peyote religion. The religion teaches that those who
use peyote must not use alcohol. It encourages love of
parents and obedience to parents, fidelity to a spouse, and
charity towards others. The peyote religion does not prohibit
members from also practicing other religions.
While the first amendment right of Indian practitioners of the peyote
religion is endangered by the Smith decision, its religious use is
basically noncontroversial. Attempts by the Congress to recognize and
protect this right have a long history. When the House of
Representatives passed H.R. 2, which became the Drug Abuse Control
Amendments of 1965, it protected the right of Indians to use peyote in
connection with the ceremonies of a certified religious organization.
The Senate omitted that specific protection, preferring that substances
be included on such a list on a case-by-case basis. Congressman Harris
assured House members that such omissions would not prevent bona fide
religious use because courts had already upheld peyote use as a first
amendment right. The administration then added peyote to Schedule I by
administrative regulation in 1966, but provided an exemption for
nondrug use of peyote in religious ceremonies of the Native American
Church.
When Congress passed the Controlled Substance Act of 1970, it enacted
Schedule I into law. During hearings on the legislation, Congressman
Satterfield expressed concern that the religious use of peyote by
Indian practitioners be protected. The administration assured him that
this would be taken care of by regulation. The regulations adopted in
1971 to implement the act included such an exemption and provides, at
21 CFR 1307.31, that--
The listing of peyote as a controlled substance in Schedule
I does not apply to the nondrug use of peyote in bona fide
religious ceremonies of the Native American Church.
Since that time, Native American Church use of peyote as a religious
sacrament has had the limited protection of that Federal regulation.
Also, 28 States have included some degree of protection of the
religious use of peyote by Indians in their laws. Unfortunately,
neither the Federal regulations nor the State laws provide the full
range of protection needed for the unhindered religious use of peyote
by Indians, and 22 of the States still have no laws protecting that
right.
Mr. Speaker, there have been some perceptions expressed about the
religious use of peyote by Indian people as a part of the severe drug
problems of this Nation. Nothing could be further from the truth.
Officials of the Drug Enforcement Administration of the Department of
Justice testified at a House hearing in 1993 that the religious use of
peyote by Indians has nothing to do with the vast and violent traffic
in illegal narcotics that plagues this country. The NAC enjoys a good,
cooperative relationship with DEA in ensuring that peyote is lawfully
harvested and distributed solely for American Indian religious use. The
distribution of peyote is strictly controlled by Federal regulations,
and by the laws and regulations of the State of Texas, the only State
in which the sacrament grows in significant quantities. I am attaching
to my statement a chart listing the number of States which do have
protective laws and the nature of such laws.
In addition, the medical evidence, based on the opinion of scientists
and other experts, including medical doctors, former directors of the
Indian Health Service, and anthropologists, is that peyote is not
injurious to the Indian religious user, and, in fact, is often helpful
in controlling that scourge which afflicts many Indian people,
alcoholism and alcohol abuse. All courts that have made factual
findings regarding the religious use of peyote by Indians have
correctly concluded that such is not harmful.
If there already exists an exemption in Federal regulations for the
religious use of peyote by Indians, and if 28 States have some similar
protective laws, the question could be raised as to why this
legislation is necessary to protect this first amendment right of
members of the Native American Church.
First, while the church has appreciated the existence of the Federal
and State protective laws, such laws do not provide the range of
protection necessary to meet the standards of the first amendment. For
instance, in some States, the legal protection for Native Americans is
limited to the opportunity to provide the religious use of peyote is an
affirmative defense in the context of felony prosecution. This means
bona fide NAC members can be arrested, finger-printed, incarcerated,
and subjected to all the indignities of a felony prosecution before
they can hope to be vindicated and set free. Even then, they will have
a criminal record--simply for practicing a bona fide religion that
predates the founding of this country by some 10,000 years. Mr.
Speaker, it is an intolerable irony that the First Americans still do
not have the right to worship freely in our great Nation--which was
founded in large part on the fundamental democratic principle
guaranteeing religious liberty to all. We must rectify this inequity.
Second, as noted 22 States make no provision for the protection of
the religious use of peyote by Indians. As a result of the diverse
State laws governing the use of peyote, Indians in different tribes
from different States, as well as from different tribes within some
States, are treated differently regarding that use. NAC members who
have lawfully acquired the sacrament in Texas can still be arrested and
subjected to felony prosecution and imprisonment in those 22 States,
States in which they may live or through which they must travel on
their way home from Texas after lawfully acquiring the sacrament.
Legislation is therefore needed to assure comprehensive equal, and
uniform protection of the religious use of peyote by Indians throughout
the United States, without regard to State or reservation of residence,
or tribal affiliation.
Finally, the legislation remains necessary despite the recent
enactment of the Religious Freedom Restoration Act of November 16,
1993. This act, which was supported by all of the major religious
denominations of the United States, in effect reversed the ruling of
the Supreme Court in the Smith case, which rejected the longstanding
``compelling government interest'' test in determining government
infringements on religious freedom. On behalf of the Nation's
religions, the act reinstated this test. Ironically, however, the act
left endangered the very religious practice, the traditional use of
peyote by Indians, which was impaired in the Smith case. Justice
O'Connor made clear in her concurring opinion in the Smith case that,
even if the ``compelling government interest'' test was applied, she
would still find that the State of Oregon had a right to abrogate
Smith's religious right to the use of peyote. This is an unacceptable
result to the NAC and its members, particularly in light of the fact
that, as correctly pointed out by Justice Blackmun in his dissent,
Oregon's position that it has an interest in protecting its citizens
from the dangers of peyote rests on no evidentiary foundation at all,
and is therefore entirely speculative.
Mr. Speaker, the only remaining objection which could be made
regarding this legislation is one of constitutional problems. That is
easily met and answered. The granting of a religious exemption for the
sacramental use of peyote solely by American Indians presents no equal
protection or establishment clause problems. At the urging of the U.S.
Department of Justice, the long-standing rationale for special Indian
treatment by the Federal Government was recently applied by the Fifth
Circuit Court of Appeals regarding the religious use of peyote in the
case of Peyote Way Church of God v. Thornburgh, 922 F.2d 1210 (1991).
Finding that the Native American Church members were also members
of federally recognized tribes, the court upheld the constitutionality
of the DEA's protective regulation--
We hold that the federal NAC exemption allowing tribal
Native Americans to continue their centuries-old tradition of
peyote use is rationally related to the legitimate
governmental objective of preserving Native American culture.
Such preservation is fundamental to the federal government's
trust relationship with tribal Native Americans.
Last year, this Congress passed the Religious Freedom Restoration Act
to restore religious liberty to the vast majority of this great Nation.
Unfortunately, that law does not adequately protect American Indians
who worship in traditional ways. As President Clinton emphasized when
he signed the act on November 15, 1993:
The agenda for restoration of religious freedom in American
will not be complete until traditional Native American
religious practices have received the protection they
deserve. My administration has been and will continue to work
actively with Native Americans and the Congress on
legislation to address these concerns.
Mr. Speaker, it is important that we pass this legislation this
Session to secure to these American citizens the most basic of the
rights guaranteed by our Constitution, the right of religious workship.
It will be my intention to schedule early hearings on this subject and
to move expeditiously on the legislation. I invite all Members to
cosponsor the bill.