From: [c--o--n] at [dsm1.dsmnet.com]
Newsgroups: talk.politics.drugs
Subject: Sacramental use of peyote
Date: 3 Jul 1994 18:49:22 GMT

For anyone who's interested, I'm reposting a discussion from one of our
local BBS:

DAVE: Well, I can't help you for your case, but I think the reason 
DAVE: that the indians recieve an exemption from the drug law is 
DAVE: that they aren't official citizens.  I think the indian reservations 
DAVE: are also considered territories, not official, claimed land.

DAVE: Please, correct me if I'm wrong.

	Thanks for the reply.
	You raise some interesting and valid points.  The various circuits 
of the U.S. Courts of Appeals haven't been able to agree on the reason for 
the exemption of the sacramental use of peyote from the drug laws, and the 
U.S. Supreme Court has never resolved the issue, although Congress has 
considered the issue (once in 1965, again in 1978, and again in 1993).  Your 
view, that the exemption is tied to the special status of Native Americans 
as foreign citizens of their respective reservations, has been articulated 
by two courts, that I know of.
	The first was in U.S. v. Warner,  595 F.Supp. 595 (D.N.D. 1984), 
where a couple of white people were arrested for using peyote during a 
Native American Church ceremony.  After a pre-trial motion to dismiss on 
Free Exercise of Religion grounds, the court ruled that the exemption only 
applied to members of the Native American Church.  The bylaws of the Church 
state that only Native Americans, of at least one quarter Native American 
ancestry, may belong to the Church.  However, at trial, the jury could not 
see any reason for making such a distinction, and the Warners were 
acquitted.
	The second ruling was in Peyote Way Church of God v. Thornburgh, 922 
F.2d 1210 (5th Cir. 1991).  Peyote Way Church was formed by former members 
of the Native American Church who did not agree with the Native American 
ancestry requirement and wanted to accept all races into the Church.  In 
that case, the court ruled that the exemption was based on the special 
political status of Native Americans, not on the free exercise of religion, 
and that only Native Americans could use peyote legally (the court didn't 
explain why they had to belong to a church to get the exemption).
	Two other courts have ruled that the exemption cannot be limited to 
Native Americans.  Kennedy v. Bureau of Narcotics and Dangerous Drugs, 459 
F.2d 415 (9th Cir. 1972); and Native American Church of New York v. United 
States, 468 F.Supp. 1247 (S.D.N.Y. 1979), affirmed, 633 F.2d 205 (2nd Cir. 
1980).  When the exemption was created in 1965, Congress attributed the 
exemption to a California Supreme Court decision, People v. Woody, 394 P.2d 
813 (Cal. 1964), which held that the exemption was required because of the 
Free Exercise of Religion Clause of the First Amendment.  That same day, the 
California Supreme Court ruled that the sacramental use of peyote by 
nonmembers of the Native American Church was also constitutionally 
protected.  In re Grady, 394 P.2d 728 (Cal. 1964).  Again, in 1978, when 
Congress enacted the American Indian Religious Freedom Act, Pub. L. 95-341, 
Aug. 11, 1978, 92 Stat. 469, Congress affirmed that the peyote exemption was 
required by the First Amendment (no mention was made of the unique political 
status of Native Americans).  Indeed, not all members of the Native American 
Church are non-citizens of the United States, negating the theory that their 
status as non-citizens is related to the exemption.
	In 1990, the U.S. Supreme Court held that the peyote exemption was 
not constitutionally required, only permissible.  Employment Division v. 
Smith, 494 U.S. 872, 110 S.Ct. 1595 (1990).  However, that decision was so 
repugnant, that it was explicitly rejected in November of 1993 when Congress 
passed the Religious Freedom Restoration Act, Pub. L. 103-141, Nov. 16, 
1993, 107 Stat. 1488.   
	I hope this gives you enough background to see that the special 
status of Native Americans as non-citizens is not related to the exemption 
of sacramental peyote use from the drug laws.  The recent decision involving 
the Kiryas Joel school district seems to cast doubt on the constitutionality 
of the peyote exemption.  The problem with the Kiryas Joel school district 
is that it was defined by religion, not geography.  The same thing applies 
to the state and federal peyote exemptions - they both name a specific 
religion, the Native American Church, rather than giving all religions equal 
treatment.
	Carl E. Olsen
	[c--o--n] at [dsmnet.com]