*=-- --=* { the } -=*/> Buzzz Bros. <\*=- present: The Supreme Bunch of INjustuces vs. Peyote Part II of II { } *=-- --=* [8] ------------------------------------------------------------------------- Exerpts from the following article analyzing the effects the US Supreme Court ruling on the Native American Church's use of peyote as being illegal: Native American church members stripped of their rights under the Constitution are now subject to the will of the legislative branch of our state and federal governments. Not an enviable place for Indian people; as a distinct racial and religious minority Indians have always had an uphill struggle in the halls of Congress and elsewhere to have their rights recognized and respected. The legislative branch of any government is an exceedingly unusual place for individuals to look to have their rights under the First Amendment vindicated. Courts are traditionally looked to as protectors of these rights, against majoritarian legislatures. Justice O'Connor, in a separate concurring opinion which joined the result of the majority but sharply criticized its method, reasoned that "the First Amendment was enacted precisely to protect those whose religious practices are not shared by the majority and may be viewed with hostility." As a result of "Smith," minority religions, in Justice Scalia's opinion, may be at a disadvantage in the political arena. But that is, in his estimation, "an unavoidable consequence of democratic government," preferable to "a system in which each conscience is a law unto itself." Justice Scalia had to strain to defend his decision, citing the need to prevent "anarchy" in our democratic society. Indian people simply want to be left alone in our society to worship the god of their choice. Is that asking too much? The Court's decision in "Smith" strips Indians of their pride and integrity, and makes many of them criminals in the eyes of the law. Only history will judge the Court's decision in "Smith;" but for now the remote specter of anarchy may very well have been the preferred choice. [end of article; more to come] [10] The following article appeared in the Spring 1990 issue of "Native American Rights Fund Legal Review", a publication of the Native American Rights Fund, 1506 Broadway, Boulder, CO 80302, and is reprinted here w/permission. ----------------------------------------------------------------------------- Supreme Court Deals Devastating Blow to Native American Church by Steve Moore On Tuesday, April 17, 1990, the United States Supreme Court struck a gut wrenching blow to the religious lives of many of this country's Native Americans, in a decision which invites the return to an era of religious persecution one would hope a presumably enlightened and tolerant society such as ours had left behind. In the case of "Oregon Department of Employment v. Alfred Smith," Justice Antonin Scalia, writing for a five member majority, and describing the First Amendment's Free Exercise Clause as little more than a "negative protection accorded to religious belief," held that a member of a religious faith may not challenge under the free exercise clause of the First Amendment to the United States Constitution a legislature's criminal enactment of otherwise general application which produces infringement on a particular religious practice. In the "Smith" case this amounted to a challenge to the constitutionality of an Oregon drug law which the Court interpreted as a general criminal prohibition on all uses of the drug peyote, considered by Indian members of the Native American Church as an essential sacrament, the physical embodiment of the Great Spirit. The Native American Church, which claims over 250,000 members nationwide, and additional Indian practitioners in Canada and Mexico, and which can be traced back archaeologically several thousand years in North America, was not absolutely destroyed or driven underground by the Court's action. The Court did not go so far as to rule that any state or federal law exempting the religious, sacramental use of peyote was an unconstitutional establishment of religion, at the other end of the religion clauses of the First Amendment. In the Court's terms, a peyote exemption, while constitutionally *permitted*, is neither constitutionally *required* or *prohibited*. A kind of constitutional limbo-land for the Native American Church and its members. [11] In real terms the decision leaves the fate of the peyote religion to the whim of majoritarian legislatures and Congress. Eleven states currently have exemptions on the statute books protecting the religion; another twelve tie their exemption to a federal Drug Enforcement Agency regulation which rests on questionable foundation since the decision. A small handful of states, notably California and Nebraska, in which are located some of the largest Indian and Native American Church populations, have based their protection on court decisions. The others, and the federal government through Congress, have no statutory or common law protection. Indian reservation lands will provide some safe haven from possible prosecution, given the particular Public Law 280 configuration in any given state, but problems of transportation of the sacrament into Indian country through "illegal" territory will reduce peyote ceremonies to complex and dangerous liaisons. Native American church members stripped of their rights under the Constitution are now subject to the will of the legislative branch of our state and federal governments. Not an enviable place for Indian people; as a distinct racial and religious minority Indians have always had an uphill struggle in the halls of Congress and elsewhere to have their rights recognized and respected. The legislative branch of any government is an exceedingly unusual place for individuals to look to have their rights under the First Amendment vindicated. Courts are traditionally looked to as protectors of these rights, against majoritarian legislatures. Justice O'Connor, in a separate concurring opinion which joined the result of the majority but sharply criticized its method, reasoned that "the First Amendment was enacted precisely to protect those whose religious practices are not shared by the majority and may be viewed with hostility." A noted scholar of Indian law and philosopher, Felix Cohen, was quoted several decades ago as saying: "Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith ...." Cohen's words become even more prophetic after the Court's decision in "Smith." The "Smith" decision may perhaps portend even greater persecution for other forms of Indian religious expression. Examples which come to mind include: the wearing of long hair by Indian students in public schools, and by Indian prisoners in federal and state prisons; missing school on a regular basis for cultural/religious ceremonial purposes; the taking of game by Indians out season, when not otherwise protected by treaty; burning wood to heat rocks for sweat- lodge ceremonies, when burning is otherwise outlawed by local ordinance during times of high pollution; and body piercing as part of the Sun Dance ceremony. If these forms of religious expression are otherwise prohibited by general criminal laws, the First Amendment no longer provides a basis from which to claim protection from religious infringement. As with peyote use, reservation boundaries will provide a buffer from the application of state law, except where Public Law 280 legitimizes intrusion. As a result of "Smith," minority religions, in Justice Scalia's opinion, may be at a disadvantage in the political arena. But that is, in his estimation, "an unavoidable consequence of democratic government," preferable to "a system in which each conscience is a law unto itself." Justice Scalia had to strain to defend his decision, citing the need to prevent "anarchy" in our democratic society. Indian people simply want to be left alone in our society to worship the god of their choice. Is that asking too much? The Court's decision in "Smith" strips Indians of their pride and integrity, and makes many of them criminals in the eyes of the law. Only history will judge the Court's decision in "Smith;" but for now the remote specter of anarchy may very well have been the preferred choice. [end of article; more to come] [13 of 13] STATEMENT FROM PACIFIC NORTHWEST CHURCH LEADERS WHO SUPPORT INDIAN RELIGIOUS RIGHTS Re: Employment Division, State of Oregon v. Al Smith, Galen Black, 88-1213 The recent U.S. Supreme Court decision regarding the sacramental use of peyote in Native American religious rites is unfortunate and deeply disappointing. We support the right of Native Americans to practice their religion as they have for centuries. We concur with Justice Harry Blackmun, who writing for the dissent, called the decision a "wholesale overturning of settled law concerning the religious clauses of our Constitution." The decision jeopardizes the fundamental right of all citizens to exercise freedom of religion free from government restraint. We will continue to work with Native Americans to help them protect their religious rights. The Most Rev. Raymond G. Huthausen Archbishop of Seattle Roman Catholic Archdiocese of Seattle The Right Rev. Vincent W. Warner, Bishop Episcopal Diocese of Olympia The Most Rev. Thomas Murphy, Coadjutor Archbishop Roman Catholic Archdiocese of Seattle The Rev. John Boonstra, Executive Minister Washington Association of Churches The Rev. Calvin D. McConnell, Bishop United Methodist Church Pacific NW Conference The Rev. W. James Halfaker, Conference Minister Washington-Idaho Conference United Church of Christ The Rev. Lowell Knutson, Bishop NW Washington Synod Evangelical Lutheran Church In America The Rev. Dr. William B. Cate, President Director Church Council of Greater Seattle The Rev. Gaylord Hasselblad, Executive Minister American Baptist Churches of the Northwest These church leaders issued an apology to Indians that was carried in the Winter 1988 NARF Legal Review ----------> Buzzz Bros. <---------- End of File X-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-X Another file downloaded from: NIRVANAnet(tm) & the Temple of the Screaming Electron Jeff Hunter 510-935-5845 Rat Head Ratsnatcher 510-524-3649 Burn This Flag Zardoz 408-363-9766 realitycheck Poindexter Fortran 415-567-7043 Lies Unlimited Mick Freen 415-583-4102 Specializing in conversations, obscure information, high explosives, arcane knowledge, political extremism, diversive sexuality, insane speculation, and wild rumours. ALL-TEXT BBS SYSTEMS. Full access for first-time callers. We don't want to know who you are, where you live, or what your phone number is. We are not Big Brother. 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