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Full text of "American Indian Religious Freedom Act : oversight hearing before the Subcommittee on Native American Affairs of the Committee on Natural Resources, House of Representatives, One Hundred Third Congress, first session, on effectiveness of P.L. 95-346--the American Indian Religious Freedom Act of 1978 (AIRFA)"

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ffl     AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT- 
PART  II 


<H.ft3l/2>: 


^      -/    OVERSIGHT  HEARING 

BEFORE  THE 

SUBCOMMITTEE  ON 
NATIVE  AMERICAN  AFFAIRS 

OF  THE 

COMMITTEE  ON 

NATURAL  RESOURCES 

HOUSE  OF  REPRESENTATIVES 

ONE  HUNDRED  THIRD  CONGRESS 

FIRST  SESSION 

ON 

EFFECTIVENESS  OF  P.L.  95-346— THE  AMERICAN  INDIAN  RELIGIOUS 

FREEDOM  ACT  OF  1978  (AIRFA) 


HEARING  HELD  IN  WASHINGTON,  DC 
MARCH  16,  1993 


Serial  No.  103-7  Part  II 


Printed  for  the  use  of  the  Committee  on  Natural  Resources 


^o^t 


JUL  3 


0  1993 


■ 


U.S.   GOVERNMENT  PRINTING  OFFICE 
68-366  WASHINGTON  :  1993 

For  sale  by  the  U.S.  Government  Printing  Office 
Superintendent  of  Documents,  Congressional  Sales  Office,  Washington.  DC  20402 
ISBN   0-16-040964-0 


ffi     AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT- 
PART  II 


lM/p»3l/'2>'. 


°         '    OVERSIGHT  HEARING 

BEFORE  THE 

SUBCOMMITTEE  ON 
NATIVE  AMERICAN  AFFAIRS 

OF  THE 

COMMITTEE  ON 

NATURAL  RESOURCES 

HOUSE  OP  REPRESENTATIVES 

ONE  HUNDRED  THIRD  CONGRESS 

FIRST  SESSION 

ON 

EFFECTIVENESS  OF  P.L.  95-346— THE  AMERICAN  INDIAN  RELIGIOUS 

FREEDOM  ACT  OF  1978  (AIRFA) 


HEARING  HELD  IN  WASHINGTON,  DC 
MARCH  16,  1993 


Serial  No.  103-7  Part  II 


Printed  for  the  use  of  the  Committee  on  Natural  Resources 


JUL30®3 


U.S.  GOVERNMENT  PRINTING  OFFICE 
68-366  WASHINGTON  :  1993 


For  sale  by  the  U.S.  Government  Printing  Office 
Superintendent  of  Documents,  Congressional  Sales  Office.  Washington,  DC  20402 
ISBN   0-16-040964-0 


COMMITTEE  ON  NATURAL  RESOURCES 


House  of  Representatives 

GEORGE  MILLER,  California,  Chairman 


PHILIP  R.  SHARP,  Indiana 
EDWARD  J.  MARKEY,  Massachusetts 
AUSTIN  J.  MURPHY,  Pennsylvania 
NICK  JOE  RAHALL  II,  West  Virginia 
BRUCE  F.  VENTO,  Minnesota 
PAT  WILLIAMS,  Montana 
RON  DE  LUGO,  Virgin  Islands 
SAM  GEJDENSON,  Connecticut 
RICHARD  H.  LEHMAN,  California 
BILL  RICHARDSON,  New  Mexico 
PETER  A.  DeFAZIO,  Oregon 
ENI  F.H.  FALEOMAVAEGA, 

American  Samoa 
TIM  JOHNSON,  South  Dakota 
LARRY  LaROCCO,  Idaho 
NEIL  ABERCROMBIE,  Hawaii 
CALVIN  M.  DOOLEY,  California 
CARLOS  ROMERO-BARCELO,  Puerto  Rico 
KARAN  ENGLISH,  Arizona 
KAREN  SHEPHERD,  Utah 
NATHAN  DEAL,  Georgia 
MAURICE  D.  HINCHEY,  New  York 
ROBERT  A.  UNDERWOOD,  Guam 
HOWARD  BERMAN,  California 
LANE  EVANS,  Illinois 
PATSY  T.  MINK,  Hawaii 
THOMAS  J.  BARLOW  III,  Kentucky 
THOMAS  M.  BARRETT,  Wisconsin 

Daniel  P.  Beard,  Staff  Director 

RICHARD  Meltzer,  General  Counsel 

Daniel  Val  Kish,  Republican  Staff  Director 


DON  YOUNG,  Alaska, 

Ranking  Republican  Member 
JAMES  V.  HANSEN,  Utah 
BARBARA  F.  VUCANOVICH,  Nevada 
ELTON  GALLEGLY,  California 
ROBERT  F.  SMITH,  Oregon 
CRAIG  THOMAS,  Wyoming 
JOHN  J.  DUNCAN,  Jr.,  Tennessee 
JOEL  HEFLEY,  Colorado 
JOHN  T.  DOOLITTLE,  California 
WAYNE  ALLARD,  Colorado 
RICHARD  H.  BAKER,  Louisiana 
KEN  CALVERT,  California 
SCOTT  MCINNIS,  Colorado 
RICHARD  W.  POMBO,  California 
JAY  DICKEY,  Arkansas 


Subcommittee  on  Native  American  Affairs 

BILL  RICHARDSON,  New  Mexico,  Chairman 

PAT  WILLIAMS,  Montana  CRAIG  THOMAS,  Wyoming, 

SAM  GEJDENSON,  Connecticut  Ranking  Republican  Member 


ENI  F.H.  FALEOMAVAEGA, 

American  Samoa 
TIM  JOHNSON,  South  Dakota 
NEIL  ABERCROMBIE,  Hawaii 
KARAN  ENGLISH,  Arizona 


DON  YOUNG,  Alaska 
RICHARD  H.  BAKER,  Louisiana 
KEN  CALVERT,  California 


Tadd  Johnson,  Staff  Director 

Steven  J.W.  Heeley,  Counsel 

Marie  Howard,  Professional  Staff  Member 

Barbara  Robles,  Clerk 

Richard  H.  Houghton  III,  Republican  Counsel  on  Native  American  Affairs 


(ID 


CONTENTS 


Page 

Hearing  held:  March  16,  1993  1 

Background  information 2 

Member  statements: 

Bill  Richardson  1 

Craig  Thomas 3 

Tim  Johnson 3 

Witness  statements: 

Gene  R.  Haislip,  Deputy  Assistant  Administrator,  Office  of  Diversion 
Control,  Drug  Enforcement  Administration,  U.S.  Department  of  Jus- 
tice    4 

Panel  consisting  of: 

Craig  Dorsay,  attorney  at  law,  Meyer  &  Wyse,  Portland  OR,  on 

behalf  of  Confederated  Salish  and  Kootenai  Tribes,  Pablo,  MT  9 

Douglas  J.  Long,  president,  Native  American  Church  of  North  Amer- 
ica (NACNA),  Winnebago,  Canada 14 

Robert     Whitehorse,     president,     Native     American     Church     of 

Navajoland  (NACNL),  Cortez,  CO 73 

Gus  Palmer,  elder,  Koawa  and  Apache  Chapter,  Native  American 
Church,  Anadarko,  OK,   accompanied  by  Henry  Ware,  member, 

Iowa  Chapter,  Native  American  Church  139 

Panel  consisting  of: 

Karen  Atkinson,  tribal  attorney,  Confederated  Salish  and  Kootenai 

Tribes  of  the  Flathead  Nation,  Pablo,  MT  156 

Hon.  Vernon  Masayesva,  chairman,  Hopi  Tribe,  Kykotsmovi,  AZ  230 

Mark  A.  Powless,  tribal  advocate,  Oneida  Tribe  of  Indians  of  Wiscon- 
sin        235 

Panel  consisting  of: 

Ben  Carnes,  Chahta  Nation,  director,  Spiritual  Alliance  for  Native 

Prisoners,  Oklahoma  City,  OK  240 

Bud  Johnston,  enrolled  member,  Bad  River,  Northern  Wisconsin, 
Chippewa,  on  behalf  of  the  Pipestone  Native  American  Community, 

Sioux  Falls,  SD  246 

Additional  material  submitted  by  witnesses  during  the  hearing: 
Douglas  Long: 

1.  Jay  Fikes,  Ph.D.,  "Native  American  Church  Background  Informa- 
tion Concerning  the  History,  Legal  Status  and  the  Need  for  Federal 
Legislation,"  (February  1992)  26 

2.  NACNA  Resolution  (August  3,  1991)  in  support  of  Federal  legisla- 
tion          48 

3.  NACNA  Resolution  (May  11,  1990)  establishing  the  Religious 
Freedom  Project  of  the  Native  American  Church  49 

4.  Resolutions  and  exhibits  of  support  for  Federal  legislation  50 

5.  Membership  list  for  American  Indian  Religious  Freedom  Coalition         69 

6.  Chart  of  State  and  Federal  exemptions  for  religious  use  of  peyote  .        70 

7.  Letter  from  DEA  to  NACNA  71 

Robert  Whitehorse: 

1.  Testimony  of  Sergeant  Shawn  Arnold  84 

2.  Testimony  of  Troy  Nakai  88 

3.  Letter  to  Chief  Justice  of  the  United  States  92 

4.  Testimony  of  Wilson  Aronilth,  Jr 96 

5.  Statement  of  Emery  A.  Johnson,  MD,  MPH  112 

6.  Statement  of  Dr.  Everett  Rhoades  113 

7.  Resolution  of  the  Navajo  Nation  Council  116 

(HI) 


IV 

Page 

Additional  material  submitted  by  witnesses  during  the  hearing — Continued 
Robert  Whitehorse — Continued 

8.  Resolution  of  the  Intergovernmental  Relations  Committee  of  the 
Navajo  Nation  Council  „ 118 

9.  Statement  of  Peterson  Zah,  president  of  the  Navajo  Nation  127 

10.  Resolution  of  the  Dine  Traditional  Healing  Science  Practitioners  .  134 

11.  State  of  Arizona  Senate  Concurrent  Memorial  1001 135 

12.  State  of  New  Mexico  Joint  Memorial  15  137 

Karen  Atkinson,  Esq.: 

1.  Copies  of  the  application  form  and  guidelines  from  Region  Two 
and  Region  Six,  Fish  and  Wildlife  Service,  on  "How  to  obtain 
eagles,  feathers  or  parts  for  religious  use"  167 

2.  Acknowledgment  letter  from  the  Fish  and  Wildlife  Service  notify- 
ing applicant  of  24-month  delay  on  eagle  feathers  requests  228 

Bud  Johnston: 

1.  Resolution  of  the  Pipestone  Dakota  Indian  Community  requesting 
exemption  from  future  amendments  to  P.L.  95-314  253 

2.  Letter  to  the  National  Congress  of  American  Indians  (N.C.A.I.) 
from  the  Pipestone  Dakotah  Community  254 

3.  Statement  in  support  of  resolution  proposed  by  the  Minnesota 
State  Indian  Affairs  Counsel  255 

4.  Listing  of  quarriers  from  different  Tribal  groups  from  1971 
through  1990  and  quarry  photographs  259 

APPENDDC 

March  16,  1993 

Additional  material  submitted  for  the  record  from: 

Native  American  Church  of  North  America  and  Native  American  Church 
of  Navajoland,  Inc.:  Supplemental  testimony  of  Douglas  J.  Long,  presi- 
dent, NACNA,  and  Robert  Billy  Whitehorse,  president,  NACNL,  re- 
garding the  traditional  use  of  peyote  265 

Confederated  Salish  and  Kootenai  Tribes  of  The  Flathead  Nation,  St. 
Ignatius,  MT:  Prepared  statement  of  Clarence  Woodcock,  director,  Flat- 
head Culture  Committee  274 

The  Temple  of  Lono,  Hawaii:  Prepared  statement  of  Clive  L.  Cabral, 
Secretary,  regarding  proposed  amendments  to  the  American  Indian 
Religious  Freedom  Act 277 

Native  American  Religious  Freedom  Project:  Prepared  statement  of  Reu- 
ben A.  Snake,  Jr.,  coordinator  280 

Native  American  Church  of  Oklahoma:  Prepared  statement  of  Ed  Red 
Eagle,  Jr.,  vice  president,  concerning  the  traditional  use  of  peyote  287 

Ka  Lahui  Hawaii:  Prepared  statement  of  Mililani  B.  Trask,  Kia'aina, 
Hilo,  Hawaii,  regarding  the  joint  resolution  American  Indian  Religious 
Freedom  Act  of  1993  305 

David  S.  Clark,  Navajo  Reservation,  Teesto,  Arizona:  Prepared  statement 
on  traditional  use  of  peyote  in  Native  American  Church  307 


AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT 


TUESDAY,  MARCH  16,  1993 

House  of  Representatives, 
Subcommittee  on  Native  American  Affairs, 

Committee  on  Natural  Resources, 

Washington,  DC. 

The  subcommittee  met,  pursuant  to  call,  at  9:35  a.m.,  in  room 
1324,  Longworth  House  Office  Building,  Hon.  Bill  Richardson 
(chairman  of  the  subcommittee)  presiding. 

OPENING  STATEMENT  OF  CHAIRMAN  BILL  RICHARDSON 

Mr.  Richardson.  The  subcommittee  will  come  to  order.  Good 
morning. 

Today's  hearing  is  the  second  oversight  hearing  the  subcommit- 
tee will  hold  on  the  effectiveness  of  the  American  Indian  Religious 
Freedom  Act  of  1978. 

In  1988,  the  Supreme  Court  held  in  the  Lyng  case  that  the 
American  Indian  Religious  Freedom  Act  did  not  confer  a  cause  of 
action  to  Indians  for  the  protection  of  religious  sites  from  Federal 
land  management  decisions  and  therefore  could  not  be  used  by  In- 
dians to  challenge  such  decisions. 

In  1990,  the  Supreme  Court  further  frustrated  Native  Americans 
in  the  case  of  Smith  when  it,  in  essence,  threw  out  the  long-stand- 
ing practice  of  courts  that  in  order  for  the  Government  to  restrict 
or  curtail  an  individual's  right  to  religious  practice,  the  Govern- 
ment had  to  show  it  had  an  overriding  "compelling  interest"  to  do 
so. 

In  the  hearing  held  on  February  23,  the  subcommittee  received 
testimony  focused  on  land  access  and  sacred  site  preservation  is- 
sues. This  morning,  we  will  hear  from  several  tribal  and  religious 
leaders  on  concerns  relating  to  access  and  availability  of  sacred  ob- 
jects and  the  rights  of  Native  American  prisoners  to  practice  their 
religion  while  incarcerated. 

At  present,  no  legislation  amending  the  American  Indian  Reli- 
gious Freedom  Act  is  before  the  subcommittee  and  no  decisions 
have  been  made  as  to  what  amendments  should  look  like.  We  are 
willing  to  look  at  all  proposals  at  this  time. 

I  encourage  anyone  who  is  interested  to  submit  testimony  for  the 
official  record,  which  will  remain  open  for  two  weeks  for  this  pur- 
pose. 

For  our  witnesses  today,  your  entire  statements  will  be  made  a 
part  of  the  permanent  record,  and  we  will  be  asking  you  to  summa- 
rize in  five  minutes  your  prepared  remarks. 

(1) 


At  this  time,  I  ask  that  the  Background  be  made  part  of  the 
record. 

[Background  information  follows:] 

Background  for  Oversight  Hearing 

HISTORY 

In  1978,  Congress  enacted  the  American  Indian  Religious  Free- 
dom Act,  which  states: 

"Henceforth  it  shall  be  the  policy  of  the  United  States  to  protect 
and  preserve  for  American  Indians  their  inherent  right  of  freedom 
to  believe,  express,  and  exercise  the  traditional  religions  of  the 
American  Indian,  Eskimo,  Aleut,  and  Native  Hawaiians,  including 
but  not  limited  to  access  to  sites,  use  and  possession  of  sacred  ob- 
jects, and  the  freedom  to  worship  through  ceremonials  and  tradi- 
tional rites."  (P.L.  95-341;  42  USCS  1996). 

During  debate  on  the  Act  the  Chairman  of  the  then  House  Inte- 
rior and  Insular  Affairs  Committee,  Representative  Morris  Udall, 
stated  that  the  Act  has  "no  teeth".  To  the  chagrin  of  many  Native 
American  religious  leaders  and  practitioners,  that  quote  has  been 
repeated  consistently  in  reference  to  the  Act. 

In  Lyng  v.  Northwest  Indian  Cemetery  Protection  Association 
(1988),  the  Supreme  Court  held  that  the  American  Indian  Religious 
Freedom  Act  (AIRFA)  did  not  confer  a  cause  of  action  to  Indians 
for  the  protection  of  religious  sites  from  federal  land  management 
decisions  and,  therefore,  could  not  be  used  by  Indians  to  challenge 
such  decisions.  The  Court  further  held  that  under  the  Free  Exer- 
cise Clause  of  the  Constitution,  the  government  could  not  be  pre- 
vented from  destroying  sites  held  sacred  by  Indians  and  necessary 
to  the  practice  of  traditional  religious  ceremonies  because  the 
Clause  as  written  is  in  terms  of  what  the  government  cannot  do 
to  the  individual  and  not  in  terms  of  what  the  individual  can  ex- 
tract from  the  government.  The  Court's  decision  meant  that  the  ac- 
tion in  this  case  of  the  Forest  Service  to  allow  logging  and  to  build 
a  logging  road  in  the  area  of  an  Indian  cemetery  was  not  unconsti- 
tutional because,  (1)  AIRFA  did  not  confer  a  cause  of  action  and, 
(2)  the  Forest  Service  was  not  forcing  an  individual  to  act  in  oppo- 
sition to  his  or  her  religious  beliefs. 

A  second  Supreme  Court  decision  has  raised  additional  concerns 
in  Native  as  well  as  non  Native  religious  communities.  In  Employ- 
ment Division  of  Oregon  v.  Smith  (1990),  the  Supreme  Court  aban- 
doned the  practice  used  by  courts  for  30  years  that  in  order  for  the 
government  to  restrict  or  curtail  an  individual's  right  to  practice 
his  or  her  religious  freedom,  the  government  had  to  show  that  it 
had  an  overriding  "compelling  interest"  (such  as  the  public's  health 
and  safety)  to  do  so.  The  Court  held  that  as  long  as  the  government 
was  applying  a  law  generally  to  the  public  and  not  targeting  a  spe- 
cific religious  group,  the  government  did  not  have  to  demonstrate 
a  compelling  interest. 

PURPOSE  OF  HEARING 

The  Subcommittee  has  received  voluminous  correspondence  lend- 
ing to  the  belief  that  the  American  Indian  Religious  Freedom  Act 
has  become  little  more  than  a  statement  of  policy  directing  federal 


agencies  to  consider  the  views  of  Native  American  religious  leaders 
when  making  land  management  decisions.  Numerous  tribes  have 
expressed  frustration  and  concern  over  their  inability  to  protect 
their  most  sacred  sites  and  practices.  The  Supreme  Court  cases 
named  above  have  only  exacerbated  the  situation. 

Several  tribal  and  religious  leaders  will  testify  before  the  Sub- 
committee on  their  views  and  experiences  regarding  the  effective- 
ness of  the  American  Indian  Religious  Freedom  Act. 

Mr.  Richardson.  Before  I  call  the  first  panel,  I  would  like  to  rec- 
ognize the  ranking  minority  member,  Mr.  Thomas  of  Wyoming. 

OPENING  STATEMENT  OF  HON.  CRAIG  THOMAS 

Mr.  Thomas.  Thank  you,  Mr.  Chairman. 

I  don't  have  a  prepared  statement.  I  am  pleased  to  participate  in 
this  second  hearing.  I  guess  I  would  like  to  suggest  that  you  and 
all  of  us  begin  to  look  at  some  remedies.  It  is  important,  of  course, 
to  preface  it  with  what  the  difficulties  are,  what  the  experiences 
have  been,  with  what  we  currently  have.  But  it  seems  to  me,  there 
is  a  limit  to  how  much  value  there  is  in  that,  and  there  ought  to 
come  a  time  soon  when  we  say,  "Here's  the  experience;  here's  what 
we  think  we  ought  to  do  about  it,"  and  start  to  recommend  some 
specific  remedies.  I  think  that  would  be  useful. 

Thank  you,  Mr.  Chairman. 

Mr.  Richardson.  I  thank  the  gentleman. 

The  gentleman  from  South  Dakota. 

OPENING  STATEMENT  OF  HON.  TIM  JOHNSON 

Mr.  Johnson.  Thank  you,  Mr.  Chairman,  and  again  I  commend 
you  for  holding  the  hearing  and  providing  some  badly  needed  lead- 
ership relative  to  Native  Americans  in  general  and  certainly  on 
this  religious  rights  issue. 

I  regret  that  I  will  not  be  able  to  stay  for  the  duration  of  the 
hearing.  I  have  overlapping  hearings,  including  one  that  meets 
shortly,  that  I  am  going  to  have  to  attend  and  participate  in.  But 
this  is  an  important  follow-up  hearing  on  a  prior  hearing  we  held 
on  this  issue. 

I  want  to  especially  welcome  Mr.  Bud  Johnston  of  the  Pipestone 
Indian  Community  of  Sioux  Falls,  South  Dakota,  and  I  am  looking 
forward  to  reviewing  his  testimony.  But  I  think  all  the  panel  mem- 
bers are  excellent  and  will  contribute,  I  think,  in  a  substantial  way. 

Again,  one  of  the  ongoing  concerns  that  I  have  and  I  think  that 
I  share  with  other  members  of  this  panel  is  that,  on  the  one  hand, 
we  want  to  do  what  we  can  to  assure  the  right  of  religious  practice 
for  all  peoples.  On  the  other  hand,  there  is  a  certain  amount  of  bal- 
ancing that  goes  on. 

I  note,  for  instance,  in  some  proposals  that  areas  that  are  tens 
of  thousands  of  square  miles  would  be  denominated  a  religious  site. 
Unlike  the  Lyng  case,  which  dealt  with  logging  near  a  very  specific 
cemetery  area,  when  thousands  of  square  miles  are  designated  a 
religious  site,  then  we  have  questions  about  what  kind  of  litigation 
and  what  kind  of  participatory  process  is  involved,  the  decisions 
dealing  with  logging  and  mining  and  recreation  development,  and 
all  the  other  multiple  uses  that  the  national  forests  in  particular 


are  used  for.  That  kind  of  balancing  is  something  that  no  doubt  we 
are  going  to  have  to  deal  with. 

But  I  am  looking  forward  not  only  to  this  additional  background 
and  the  problems  we  face,  but  as  the  gentleman  from  Wyoming 
notes,  moving  on  hopefully  to  deal  with  some  specific  remedies  that 
may  accommodate  all  parties. 

Thank  you,  Mr.  Chairman. 

Mr.  Richardson.  I  thank  the  gentleman. 

For  the  first  panel,  I  would  like  to  ask  Mr.  Gene  Haislip,  Deputy 
Assistant  Administrator,  Office  of  Diversion  Control,  from  the  DEA 
in  the  Department  of  Justice. 

Mr.  Haislip,  let  me  say  that  on  behalf  of  our  subcommittee  and 
the  staff,  we  want  to  thank  you  for  your  cooperation  as  we  initiated 
this  hearing  and  your  good  work  in  cooperation  with  the  Native 
American  Church.  Let  me  say  that  from  the  beginning,  you  and 
your  office  have  been  very  responsive.  I  look  forward  to  your  state- 
ment. As  I  said  earlier,  wc  would  appreciate  your  summarizing  it. 
The  full  statement  is  inserted  in  the  record.  Please  proceed. 

STATEMENT  OF  GENE  R.  HAISLIP,  DEPUTY  ASSISTANT  ADMIN- 
ISTRATOR, OFFICE  OF  DIVERSION  CONTROL,  DRUG  EN- 
FORCEMENT ADMINISTRATION,  U.S.  DEPARTMEI^'  OF  JUS- 
TICE 

Mr.  Haislip.  Thank  you,  Mr.  Chairman  and  members  of  the  com- 
mittee. I  am  pleased  to  have  this  opportunity  to  appear  before  you. 
I  will  try  to  summarize  my  statement  very  briefly. 

I  am  here  to  comment  on  one  specific  matter  of  interest,  and  that 
is  the  use  of  the  cactus  called  peyote  in  certain  religious  practices 
of  the  Native  American  Church.  First  let  me  say  that  this  cactus, 
peyote,  contains  an  active  principal  called  mescaline,  which  is  a 
powerful  hallucinogenic  drug.  As  such,  the  cactus  is  classified  as  a 
Schedule  1  substance  under  the  Federal  Controlled  Substances  Act, 
which  I  am  responsible  for  administering. 

This  simply  means  that  there  is  no  legitimate  medical  use  for  the 
drug  and  it  cannot  normally  be  consumed  for  any  legal  purpose 
other  than  research.  It  grows  only  in  the  State  of  Texas,  by  the 
way,  and  we  have  on  a  few  occasions  actually  seen  some  illicit  traf- 
fic in  this  cactus.  But  I  think  it  is  important  to  point  out  that  for 
a  great  many  years,  more  than  we  know,  it  has  been  also  used  as 
a  religious  article  or  sacrament  or  in  a  manner  as  to  facilitate  cer- 
tain religious  rights  of  American  Indians,  particularly  in  the  south- 
western United  States,  and  today  that  is  represented  by  the  prac- 
tices of  the  Native  American  Church,  which  uses  this  cactus  for  re- 
ligious purposes.  We  have  provided  under  our  law,  since  the  very 
first  enactment  when  this  cactus  was  brought  under  drug  controls, 
a  special  exception  within  the  Federal  regulations  to  permit  this 
particular  type  of  non-medical  use  because  of  the  fact  that  it  does 
represent  a  traditional  religious  practice  among  certain  Native 
American  peoples,  especially  as  they  are  now  represented  by  the 
Native  American  Church. 

I  would  like  to  say  that  we  have  been  cooperating  with  this  Na- 
tive American  Church  and  its  members  for  a  great  many  years.  We 
have  had  no  complaints  from  them,  that  I  am  aware  of,  with  regard 


to  our  administration  and  our  practices  under  this  regulation,  and 
by  the  same  token,  we  have  no  complaints  of  their  practice  as  well. 

I  should  point  out  that  on  occasion  we  have  seen  others,  non-Na- 
tive American  individuals,  sometimes  seek  to  obtain  access  to  this 
or  other  similar  drugs,  claiming  religious  practice  where  they  have 
no  such  bona  fide  claims  in  fact  and  no  affiliation  whatsoever  with 
the  Native  American  Church. 

We  have  always  denied  such  claims  as  unjustified  and  really  tak- 
ing advantage  of  the  legitimate  practices  of  members  of  the  Native 
American  Church,  and  that  is  the  only  problem  that  we  have  en- 
countered with  administering  our  law.  We  have  had  no  problems 
whatsoever  with  those  legitimate  members  of  the  church,  and  I 
would  like  to  think  that  they  have  had  no  problems  with  our  ad- 
ministration of  the  law  as  well. 

Mr.  Chairman,  that  really  concludes  a  brief  summary  of  my 
statement.  I  think  these  are  the  salient  points,  but  if  you  have 
some  specific  questions  with  regard  to  our  policy  or  practices  or  ex- 
periences, I  would  be  more  than  happy  to  try  to  answer  them  for 
you. 

Thank  you. 

[Prepared  statement  of  Mr.  Haislip  follows:] 

Statement  of  Gene  R.  Haislip,  Deputy  Assistant  Adminis- 
trator, Office  of  Diversion  Control,  Drug  Enforcement 
Administration 

Chairman  Richardson  and  Members  of  the  Committee: 

Thank  you  for  this  opportunity  to  appear  before  you  to  discuss 
the  experience  of  the  Drug  Enforcement  Administration  (DEA)  en- 
forcing the  Controlled  Substances  Act  (CSA)  as  regards  peyote,  and 
implementing  21  CFR  1307.31  relating  to  the  Native  American 
Church  (NAC). 

Peyote  is  a  cactus  whose  primary  active  ingredient  is  mescaline, 
a  drug  which  produces  hallucinogenic  effects  similar  to  those  of 
LSD  in  the  user.  Along  with  a  number  of  other  hallucinogenic 
drugs,  peyote  (mescaline)  has  on  occasion  been  found  in  the  illicit 
traffic. 

Although  in  recent  years  DEA  and  state  and  local  law  enforce- 
ment agencies  across  the  country  have  reported  a  resurgence  in  the 
trafficking  in  and  abuse  of  LSD,  the  same  cannot  be  said  for  pe- 
yote. Nor  has  the  abuse  problem  with  peyote  historically  ever  ap- 
proached the  magnitude  or  prevalence  of  LSD.  That  any  abuse  and 
trafficking  problems  with  this  drug  have  been  negligible  in  recent 
years  attests  to  the  fact  that  the  CSA  controls  have  worked  well 
for  peyote.  Despite  the  fact  that  Federal  regulation  allows  for  the 
legal  use  of  this  drug  in  specific  circumstances  and  indeed  for  the 
registration  of  legitimate  distributors,  DEA  is  not  aware  of  diver- 
sion of  this  drug  to  any  illicit  market  at  this  time. 

As  with  any  Schedule  I  controlled  substance,  peyote  has  no  cur- 
rently accepted  medical  use.  In  hearings  on  the  CSA  over  20  years 
ago,  Congress  decided  that  the  traditional,  historic  use  of  peyote  by 
the  NAC  as  a  sacrament  in  traditional  religious  ceremonies  for 
many  generations  warranted  a  specific  exemption.  Congress  deter- 
mined, consistent  with  past  Federal  practice  regarding  the  issue, 
that  it  should  be  addressed  in  the  regulations  rather  than  the  law. 


Thus,  as  exception  to  the  virtual  ban  or  any  use  of  the  drug  con- 
ferred 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  effec- 
tively not  only  from  the  viewpoint  of  DEA,  but  also  from  the  view- 
point of  the  NAC.  For  many  years  DEA  has  had  an  excellent  rela- 
tionship with  this  group,  and  I  am  not  aware  of  any  instance  in 
which  the  NAC  has  expressed  concern  about  this  regulation  re- 
stricting 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  reli- 
gious 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  poten- 
tial trafficking  in  peyote.  Unfortunately,  there  will  always  be  indi- 
viduals who  seek  to  use  any  loopholes  in  the  law  of  their  own  pur- 
pose. 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  re- 
quired 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  suppli- 
ers 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  dif- 
ferent 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  en- 
tirely 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  ef- 
fort 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  mo- 
ment, 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  it- 
self. 

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  ad- 
ministration 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  histori- 
cally 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 


8 

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  affili- 
ation 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  authori- 
ties 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  Fed- 
eral 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  rep- 
resentative 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  Na- 
tive 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  Na- 
tive 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  spe- 
cifically 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  ear- 
lier 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  be- 
cause 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  AMER- 
ICAN 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.  Su- 
preme Court. 

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


10 

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  legis- 
lation that  will  protect  particularly  the  Native  American  Church 
and  other  Native  American  religions. 

The  experience  in  Oregon  since  the  Smith  case  has  been  some- 
what difficult.  After  the  Smith  case  came  down,  there  was  intro- 
duction 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  con- 
victed. It  still  subjects  members  of  the  church  to  the  stigma  of  pros- 
ecution 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  unemploy- 
ment compensation  if  you  engage  in  an  illegal  act,  and  possession 
or  use  of  peyote  is  still  an  illegal  act,  so  an  employer  can,  with  im- 
punity, 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  reli- 
gious purposes. 

In  the  Smith  case,  we  attempted  to  resolve  the  problem  by  get- 
ting a  State  exemption  from  the  Oregon  Pharmacy  Board  for  reli- 
gious use  of  peyote.  That  move  was  blocked  by  the  Attorney  Gen- 
eral of  Oregon  on  the  basis  that  an  exemption  would  be  unconstitu- 
tional, one,  if  it  selected  out  only  the  Native  American  Church  in- 
stead 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  exemp- 
tion 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  Di- 
vision v.  Smith,  494  U.S.  872,  108  L.Ed.2d  876,  110  S.Ct.   1595 


11 

(1990),  which  held  that  the  right  of  Native  Americans  to  practice 
the  peyote  religion  is  not  protected  against  state  infringement  by 
the  United  States  Constitution. 

Because  of  the  short  time  between  when  I  was  contacted  about 
appearing  at  this  hearing  and  today,  I  am  restricting  my  written 
comments  to  a  few  points.  The  chronology  of  the  Al  Smith  case  is 
exceedingly  tortuous  and  complex.  Rather  than  repeating  that  his- 
tory, I  refer  to  you  to  the  law  review  article  I  wrote  shortly  after 
the  decision  for  the  University  of  Missouri-Kansas  City  Law  Re- 
view entitled  "Employment  Division  v.  Smith:  Just  say  'No'  to  the 
Free  Exercise  Clause."  I  did  not  choose  the  title  of  this  article.  I 
have  attached  a  copy  of  it  for  the  Committee's  record.  The  article 
describes  in  detail  the  chronology  of  the  case,  which  had  continued 
on  for  over  five  years  before  I  was  asked  to  represent  Al  Smith  in 
the  second  United  States  Supreme  Court  review  of  the  case. 

The  Al  Smith  decision  is  quite  clear  and  does  not  need  additional 
explanation  from  me  when  such  decision  has  been  provided  by  local 
scholars  in  the  field.  I  have  two  points  to  make  about  my  experi- 
ence in  the  case.  The  first  is  the  complete  lack  of  respect  accorded 
to  Native  American  religion  by  the  dominate  non-Indian  society, 
from  State  law  enforcement  officials  to  Supreme  Court  justices.  The 
sad  thing  about  this  attitude  is  the  lack  of  comprehension  these 
persons  had  about  the  degrading  effect  of  comments  they  made. 
For  example,  the  Attorney  General  of  Oregon  was  shocked  at  the 
level  of  public  opposition  he  encountered  when  he  persisted  in  pros- 
ecuting this  case,  when  he  expected  all  of  the  "mainstream"  church- 
es to  agree  with  his  position  that  the  Native  American  Church  was 
an  extreme  religion  that  did  not  deserve  protection.  His  attitude 
changed  dramatically  when  representatives  of  large  Christian  de- 
nominations informed  him  that  there  was  no  theological  difference 
between  their  churches  and  the  Native  American  Church  that  he 
was  pursuing  vigorously. 

Statements  made  about  the  Native  American  Church  or  compari- 
sons made  to  other  churches  illustrate  the  ethnocentrism  displayed 
by  the  government  in  this  case.  The  State's  brief  in  the  case  made 
a  point  of  comparing  the  Native  American  Church  to  religions  that 
used  poison  snakes  or  engaged  in  self-mutilation.  Justice  Scalia 
during  oral  argument  compared  the  Church  to  the  practice  of 
human  sacrifice  in  the  Aztec  religion  at  the  time  of  the  Spanish 
conquest.  The  State  made  unfounded  assertions  about  the  dangers 
of  ingesting  peyote  and  the  amount  of  peyote  taken  at  one  time,  re- 
lying on  one  or  two  anecdotal  comments  and  extending  these 
unverified  statements  to  the  entire  religion. 

For  me,  the  most  startling  example  of  this  attitude  occurred  dur- 
ing oral  argument  in  the  case  before  the  Supreme  Court.  Attorney 
General  Forhnmayer  was  arguing  the  dangers  of  allowing  any  ex- 
emption for  peyote  and  the  Native  American  Church,  relying  on  the 
argument  that  no  analytical  distinction  could  be  drawn  between  pe- 
yote and  drug  based  religions  which  used  marijuana,  heroin,  LSD 
and  other  illegal  substances.  He  was  arguing  that  if  you  allowed 
Indians  to  use  peyote,  you  would  have  to  allow  all  persons  to  use 
all  kinds  of  drugs  under  all  kinds  of  conditions.  Justice  Stevens 
then  asked  the  Attorney  General  whether  the  use  of  alcohol  in  reli- 
gious ceremonies  presented  a  similar  example,  such  that  the  use  of 


12 

alcohol  and  its  ingestion  by  minors  in  religious  ceremonies  could  be 
outlawed  by  a  neutral  law  prohibiting  such  use.  Frohnmayer  re- 
plied that  alcohol  presented  a  completely  different  question  because 
alcohol  was  not  classified  as  a  dangerous  drug,  and  that  alcohol 
presented  a  religious  accommodation  argument  of  an  entirely  dif- 
ferent order  because  the  legislature  provided  a  "religion  indiffer- 
ent" exemption  for  the  use  of  sacremental  wine  during  Prohibition. 

I  was  flabbergasted  by  the  ignorance  and  arrogance  displayed  by 
these  comments.  They  prove  my  ethnocentrism  argument.  The  only 
reason  alcohol  is  not  treated  as  a  "drug"  thousands  of  times  more 
dangerous  than  peyote  is  because  the  majority,  non-Indian  society 
tolerates  its  use  and  abuse.  Hundreds  of  thousands  if  not  millions 
of  Native  Americans  (as  well  as  all  other  citizens,  not  to  mention 
priests)  have  been  devastated  by  alcohol  use  in  their  families.  I 
think  it  safe  to  say  that  none  or  very  few  Indians  have  been  ad- 
versely affected  by  peyote.  And  of  course  the  sacramental  use  of 
wine  was  protected  during  Prohibition  by  a  religion  "neutral"  law; 
of  course  the  Christian  majority  is  going  to  act  to  protect  its  own 
practices.  But  to  argue  that  there  is  an  intellectually  honest  dis- 
tinction between  alcohol  and  peyote  and  to  ignore  the  cultural  bias 
inherent  in  the  entire  argument  is  beyond  my  comprehension.  To 
give  Justice  Stevens  credit,  he  did  ask  Mr.  Frohnmayer  whether 
the  real  constitutional  difference  between  alcohol  and  peyote  was 
not  the  fact  that  alcohol  is  associated  with  a  better  known  religion. 

The  second  point  I  have  to  make  about  the  Smith  case  is  that 
if  you  thought  Smith  was  bad,  you  haven't  seen  anything  yet.  From 
my  experience  in  the  case  the  majority  of  the  Court,  and  particu- 
larly Justice  Scalia,  wanted  to  go  further  in  dismantling  protection 
for  individuals  under  the  First  Amendment,  but  were  prevented 
from  doing  so  by  a  lack  of  votes.  This  is  why  I  think  Justice  Scalia's 
scathing  attack  on  Justice  O'Conner's  dissenting  legal  theory  goes 
on  at  such  length;  I  think  he  had  depended  on  her  for  his  fifth  vote 
in  a  wider  ranging  opinion.  Instead,  the  fifth  vote  was  Justice  Ste- 
vens, and  the  majority  opinion  follows  Justice  Steven's  view  of  the 
First  Amendment  as  set  out  in  footnote  three  of  his  concurring 
opinion  in  United  States  v.  Lee,  455  U.S.  252  (1982),  an  earlier 
First  Amendment  "accommodation"  decision. 

Now,  of  course,  one  of  the  dissenters  in  Smith,  Justice  Marshall, 
is  gone  and  his  replacement,  Clarence  Thomas,  is  much  more  likely 
to  follow  the  views  of  Justice  Scalia.  We  also  have  the  perfect  case, 
involving  an  animal-sacrificing  religion  which  is  unlikely  to  elicit 
much  sympathy  from  the  Court.  See  Church  of  the  Lukumi  Babalu 
Aye  w.^City  of  Hialeah.  In  this  climate  I  would  not  be  surprised  to 
see  an  opinion  directly  overturning  Wisconsin  v.  Yoder,  406  U.S. 
205  (1972),  which  confirmed  protection  of  the  Amish  religion.  I 
would  not  even  be  surprised  to  see  Cantwell  v.  Connecticut,  310 
U.S.  296  (1940),  the  decision  which  applied  the  First  Amendment 
of  the  United  States  Constitution  to  the  States,  limited  or  over- 
turned. If  this  scenario  plays  out,  statutory  protection  for  Native 
American  religious  practices  will  be  the  critical  lifeline  preserving 
and  protecting  Native  American  religions. 

In  my  opinion  the  Solarz  bill  does  not  go  far  enough.  It  reestab- 
lishes the  compelling  state  interest  balancing  test  as  a  matter  of 
federal  statutory  law,  but  this  standard  may  not  protect  Native 


13 

American  religions.  For  example,  Justice  O'Conner,  applying  this 
test  in  the  Smith  decision,  found  that  the  legislative  judgment  con- 
tained in  the  law  classifying  peyote  as  a  Class  I  Controlled  Sub- 
stance was  enough  to  justify  limitations  on  Native  American 
Church  practices.  This  test  still  leaves  Native  American  religious 
practices  under  the  control  of  subjective  value  judgments  by  non- 
Indian  judges.  Native  American  religious  practices  should  not  be 
subject  to  the  permission  of  the  dominant  society. 

In  my  opinion  Congress  clearly  has  the  authority  to  enact  legisla- 
tion which  singles  out  Native  American  religious  practices  for  pro- 
tection. Native  American  religions  are  such  an  integral  piece  of  the 
identify  of  Indian  tribes  themselves,  and  of  the  expression  of  tribal 
sovereignty  through  the  tribal  government,  that  the  proposed  legis- 
lation clearly  falls  under  the  umbrella  of  legislation  upheld  as  con- 
stitutional even  though  it  singled  Indians  out  for  special  treatment 
as  rationally  related  to  the  protection  of  Indian  tribes,  sovereignty 
and  tribal  government.  In  the  area  of  peyote  and  the  Native  Amer- 
ican Church,  there  are  a  number  of  cases  which  upheld  a  special 
exemption  for  the  Native  American  Church  based  on  this  principle. 
See  Peyote  Way  Church  of  God  v.  Thornburgh,  922  F.2d  1210  (5th 
Cir.  1991).  The  Subcommittee  would  be  justified  in  relying  ex- 
pressly on  these  opinions  and  the  factual  findings  contained  therein 
as  the  constitutional  basis  for  enacting  the  present  legislative  pro- 
posal. 

The  final  point  I  wanted  to  make  in  my  written  statement  is  to 
briefly  discuss  what  has  occurred  in  Oregon  since  the  Smith  deci- 
sion. There  have  been  no  prosecutions  of  peyote  use  by  Native 
American  Church  members.  Attorney  General  Frohnmayer  stated 
during  the  Smith  case  that  he  did  not  intend  to  prosecute  bona  fide 
use  of  peyote  by  members  of  the  Native  American  Church  no  mat- 
ter what  the  outcome  of  the  Smith  case,  which  led  more  than  one 
Justice  to  ask  Mr.  Frohnmayer  why  he  was  bringing  the  case  to 
begin  with.  Frohnmayer  replied  that  it  was  the  principle  that  was 
important.  This  was  just  another  example  of  Indian  rights  being 
trampled  for  the  convenience  of  an  outside  agenda. 

Soon  after  the  Smith  opinion  came  out,  the  Oregon  legislature 
passed  legislation  making  bona  fide  religious  use  of  peyote  a  statu- 
tory defense  to  possession  or  use  of  peyote.  This  legislation  does  not 
make  peyote  use  legal;  you  can  still  be  prosecuted  but  cannot  be 
convicted.  Obviously,  religious  use  of  peyote  carries  around  the 
stigma  of  illegality.  In  addition,  the  legislation  does  not  correct  the 
problem  which  was  the  heart  of  the  Smith  case — unemployment 
benefits.  Since  the  Court  ruled  that  a  State  may  deny  unemploy- 
ment benefits  to  someone  engaged  in  "illegal"  conduct,  even  if  for 
religious  reasons,  a  member  of  the  Native  American  Church  can 
still  be  fired  from  his  job  in  Oregon  for  practicing  his  religion,  even 
if  it  did  not  affect  his  or  her  job  performance,  and  the  State  will 
deny  that  person  unemployment  benefits  because  he  or  she  en- 
gaged in  conduct  prohibited  by  law.  This  is  surely  a  sad  result  if 
persons  can  be  denied  benefits  available  to  all  other  United  States 
citizens  only  because  they  have  engaged  in  conduct  which  is  not  fa- 
miliar to  the  majority  society. 

This  concludes  my  written  remarks.I  would  be  glad  to  answer 
any  questions  members  of  the  Subcommittee  or  staff  might  have. 


14 

Mr.  Richardson.  Thank  you  very  much. 

President  Douglas  Long,  welcome  to  the  subcommittee.  Please 
proceed. 

STATEMENT  OF  DOUGLAS  J.  LONG 

Mr.  LONG.  Good  morning,  Mr.  Chairman. 

Members  of  the  subcommittee,  I  am  Douglas  Long,  a  member  of 
the  Winnebago  Tribe  of  Wisconsin  and  president  of  the  Native 
American  Church  of  North  America.  Thank  you  for  allowing  me  to 
testify  at  this  important  hearing.  I  am  pleased  to  offer  testimony 
on  behalf  of  the  Native  American  Church  of  North  America  on  the 
need  for  a  new  Federal  law  to  protect  freedom  of  worship  by  the 
estimated  250,000  members  of  the  Native  American  Church  of 
North  America. 

I  have  submitted  100  copies  of  my  written  testimony  together 
with  exhibits  and  ask  that  my  written  testimony  be  made  a  part 
of  the  hearing  record.  I  will  only  summarize  my  written  testimony 
today.  I  would  like  to  cover  two  areas.  First,  I  would  like  to  give 
a  background  on  the  national  efforts  of  America's  Native  American 
Church  community  to  organize  and  address  the  religious  crisis 
caused  by  the  Smith  decision.  Second,  I  will  state  the  reasons  why 
the  Native  American  Church  of  North  America  supports  the  need 
for  a  new  religious  freedom  law  along  the  lines  that  are  being  pro- 
posed by  Senator  Inouye. 

Mr.  Chairman,  the  Indian  religious  use  of  peyote  has  existed  for 
10,000  years.  This  ancient  way  of  worship  ranks  among  the  oldest, 
largest,  most  continuously  practiced  indigenous  religions  in  this 
hemisphere,  predating  the  founding  of  this  Nation.  To  achieve 
American  legal  status  early  in  this  century,  beginning  in  1918,  In- 
dians began  to  organize  this  peyote  religion  into  formal,  State- 
charted  church  organizations  using  the  general  name  of  the  Native 
American  Church.  Today,  there  are  many  major,  autonomous  Na- 
tive American  Church  organizations,  such  as  my  nationwide  orga- 
nization, the  Native  American  Church  of  North  America,  the  Na- 
tive American  Church  of  Navajoland,  the  Native  American  Church 
of  Oklahoma,  of  Wyoming,  of  Idaho,  of  South  Dakota,  and  so  on. 
Although  our  beliefs  and  practices  are  similar,  we  enjoy  a  diverse 
tribal  religious  community  with  autonomy  in  each  organizations. 

The  Native  American  Church  of  North  America  is  the  only  na- 
tionwide and  international  Native  American  Church  organization. 
We  were  established  in  1950.  Today  we  have  46  affiliated  chapters 
in  24  States,  Canada,  and  Mexico.  Our  Native  American  Church 
estimate,  according  to  low  estimates,  is  250,000. 

Mr.  Chairman,  the  Smith  decision  was  devastating  to  our  ancient 
church.  It  stripped  us  of  all  legal  protection  under  American  law 
and  social  policy.  It  created  a  loophole  in  the  First  Amendment  for 
Indians.  It  created  a  heart-breaking  human  rights  crisis  in  our 
tribal  communities  that  is  seen  in  a  recent  Oklahoma  felony  pros- 
ecution, courts  martial  law,  employment  discrimination,  wide- 
spread fear  among  elders,  and  deep  psychological  scars  among  our 
young  children. 

As  such,  the  Native  American  Church  is  deeply  concerned  about 
the  frightening  religious  crisis  caused  by  the  Smith  decision.  The 
stark  reality  in  our  lives  is  that  today,  according  to  the  Supreme 


15 

Court,  America  is  no  longer  based  upon  freedom  of  worship,  and 
this  is  intolerable.  Furthermore,  there  is  a  need  for  a  uniform  na- 
tional law  protecting  the  sacramental  use  of  peyote  for  religious 
purposes  by  Indians  that  essentially  codified  the  existing  adminis- 
trative regulatory  exemption  of  the  U.S.  Drug  Enforcement  Agency. 
And,  by  the  way,  I  would  like  to  thank  the  representative  for  his 
testimony  from  the  DEA. 

The  DEA  has  an  Indian  religious  exemption.  So  do  28  states. 
However,  the  exemptions  are  not  uniform  in  their  provisions  or 
their  protections,  some  of  which  are  inadequate,  and  22  states  have 
no  protection  whatsoever.  Attachment  6  to  my  testimony  is  a  chart 
summarizing  these  laws  and  exemptions.  Attachment  7  is  a  DEA 
letter  to  me  supporting  the  need  for  a  uniform  law. 

The  Native  American  Church  of  North  America  strongly  supports 
the  need  for  a  new  religious  freedom  law.  Attachment  2  is  our  reso- 
lution of  support.  Specifically,  the  Native  American  Church  of 
North  America  supports  the  legislative  proposal  being  developed  by 
Senator  Inouye  protecting  the  religious  use  of  peyote  by  Indians. 
Mr.  Chairman,  I  respectfully  urge  you  and  the  members  of  this 
committee  to  develop,  sponsor,  and  champion  identical,  companion 
legislation  in  the  House  of  Representatives  to  address  this  para- 
mount human  rights  crisis  facing  American  Indians  today. 

Since  the  1990  Smith  decision,  Native  American  Church  mem- 
bers, chapters,  and  organizations  have  been  coordinating  with  each 
other  in  an  unprecedented  way  to  address  this  crisis.  Attachment 
3  is  a  1990  Native  American  Church  of  North  America  resolution 
that  established  the  Religious  Freedom  Project  of  the  Native  Amer- 
ican Church.  The  purpose  of  this  project,  headed  by  Mr.  Reuben 
Snake,  is  to  inform  our  community  about  the  Smith  decision,  to 
work  with  members,  chapters,  and  organizations  to  develop  support 
for  the  need  for  a  legislative  solution  and  develop  specific  legisla- 
tion that  can  be  supported  by  the  Native  American  Church  nation- 
wide community,  such  as  that  being  proposed  by  Senator  Inouye. 

In  short,  our  community  is  close  to  a  unanimous  view  on  the 
need  for  Federal  legislation  as  any  church  could  hope  to  be  on  a 
given  issue. 

Let  me  make  one  final  closing  point.  The  Native  American 
Church  is  primarily  concerned  about  the  need  to  protect  traditional 
religious  use  of  peyote  by  Indians.  However,  the  Native  American 
Church  is  also  deeply  concerned  about  other  religious  issues  being 
considered  by  this  committee  and  by  the  Senate  Indian  Affairs 
Committee,  such  as  religious  use  of  eagle  feathers,  which  plays  an 
important  role  in  the  Native  American  Church  beliefs  and  cere- 
monies; gathering  of  natural  products  from  Federal  lands  in  appro- 
priate instances  for  religious  purposes,  such  as  tipi  poles  needed  in 
our  Native  American  Church  ceremonies;  and  protection  of  sacred 
sites  in  appropriate  instances. 

In  conclusion,  Mr.  Chairman  and  the  members  of  the  subcommit- 
tee, the  Native  American  Church  stands  ready  to  work  with  you  on 
urgently  needed  religious  freedom  legislation.  We  commend  to  the 
subcommittee  the  American  Indian  Religious  Freedom  Act  amend- 
ments being  developed  by  Senator  Inouye  and  recommend  that 
similar,  companion  legislation  be  sponsored  by  you.  Time  is  long 


16 


overdue  for  our  Nation  to  guarantee  the  same  freedom  of  religion 
to  those  who  were  here  first. 

My  family  is  a  family  of  military  veterans  who  have  fought  on 
foreign  shores  to  defend  the  Bill  of  Rights.  Our  plea  to  Congress 
is  to  quickly  pass  the  religious  freedom  law  for  Native  Americans. 

I  hank  you  Mr.  Chairman.  This  concludes  my  oral  testimony  I 
am  available  for  questions.  " 

[Prepared  statement  of  Mr.  Long,  including  appendices,  follows:] 


17 


-  tacurivt  omcttt  - 

rUSIDEKT 
DOUCLAS  J.  LOKC  -  VIKXUACO 

na  rwsiotsT 

TOKT  LEX  -  KAVAJO 
TUASVUR 

hajuxt  ccomeax  -  kakdax-kidatsa 
secret  am 

lOfE  I.  SMITH  -  WIKKE1ACO 
EDITOR 
RIV.AKTJOKT  SKITH.SR.   -  WIKNEBACO 


Document 


Native  American  Church  of  North  America 

United  Slatei.  Canada  and  Mexico 

TESTIMONY  OF  DOUGLAS  J.  LONG  ON  BEHALF  OF  THE 
NATIVE  AMERICAN  CHURCH  OF  NORTH  AMERICA  BEFORE 
THE  NATIVE  AMERICAN  AFFAIRS  SUB-COMMITTEE  OF 
THE  NATURAL  RESOURCES  COMMITTEE 

March  16,  1993 

Table  of  Contents 

I.    Introduction l 


II. 


Interest  and  Background  of  the 
Native  American  Church  of  North 
America   


III.  The  need  for  federal  legislation  — 

Native  American  Church  Organizational 
Efforts  and  support   4 


IV.   Conclusion 
Appendices 


Exhibit  No. 


Jay  Fikes,  Ph.  D. ,  "Native  American  Church 
Background  Information  Concerning  the  History, 
Legal  Status  and  the  Need  for  Federal  Legislation," 
(Feb.,  1992)     


NACNA  Resolution  (Aug.  3,  1991)  supporting  the 
need  for  federal  legislation    


NACNA  Resolution  (May  11,  1990)  establishing  the 
Religious  Freedom  Project  of  the  Native  American 
Church   


Resolutions  and  exhibits  of  support  for  federal 
legislation  from  Native  American  Church  of  Navajoland, 
Native  American  Church  of  South  Dakota,  Native 
American  Church  of  Wisconsin,  Native  American  Church 
of  Wyoming,  Crov;  Indian  Peyote  Ceremonies,  Sac  &  Fox 
Chapter  Native  American  Church,  Native  American  Church  of 
Idaho,  Native  American  Church  of  Oklahoma  


Membership  list  for  American  Indian  Religious  Freedom 
Coalition     


Chart  of  state  and  federal  exemptions  for  religious 
use  of  peyote  


Letter  From  DEA  to  NACNA 


18 


I.  introduction.  Good  morning,  Mr.  Chairman  and  members  of  the 
Sub-Committee.  I  am  Douglas  J.  Long,  a  member  of  the  Winnebago 
Indian  Tribe  of  Wisconsin  and  President  of  the  Native  American 
Church  of  North  America.  Thank  you  for  the  invitation  to  offer 
testimony  in  this  important  hearing.  I  am  pleased  to  offer 
testimony  on  behalf  of  the  Native  American  Church  of  North  America 
on  the  need  for  a  new  federal  law  to  protect  freedom  of  worship  by 
250,000  estimated  members  of  the  Native  American  Church  of  North 
America. 

Native  American  religious  use  of  peyote  has  existed  for  10,000 
years.  As  such,  this  ancient  way  of  worship  ranks  among  the 
oldest,  largest,  most  continuously  practiced,  indigenous  religions 
in  this  Hemisphere,  predating  the  founding  of  this  Nation  and  the 
writing  of  the  First  Amendment.  Nonetheless,  in  a  sweeping  retreat 
from  established  legal  precedent,  the  Supreme  Court  in  Employment 
Division  v.  Smith.  494  U.S.  872  (1990),  ruled  that  the  First 
Amendment  does  not  protect  the  sacramental  use  of  peyote  in  bona 
fide  religious  ceremonies  of  the  Native  American  Church.  This 
decision  has  created  a  frightening  loophole  in  the  First  Amendment 
and  a  human  rights  crisis  for  members  of  our  religion  presently 
seen  in  a  recent  Oklahoma  felony  prosecution,  court  martials, 
employment  discrimination,  and  widespread  fear. 

My  testimony  addresses  efforts  by  the  national  Native  American 
Church  community  to  respond  to  the  Smith  crisis  and  its  support  for 
a  new  law  to  protect  our  religion.  Other  witnesses  will  address: 
1)   the  theological  importance  of  the  sacramental  use  of  peyote  in 


19 


bona  fide  religious  ceremonies  of  the  Native  American  Church;  2) 
the  need  for  legislation  and  power  of  Congress  from  a  legal 
standpoint;  and  3)  examples  of  persecution  of  Native  American 
Church  members  in  the  wake  of  the  Smith  decision. 

II.  Interest  and  Background  of  the  NACNA.  Religious  use  of  peyote 

in  traditional  Native  religious  ceremonies  is  an  ancient  practice 

with  a  10,000  year  history  in  Mexico  and  a  7,000  year  history  in 

the  United  States.   Attachment  1  to  my  testimony  is  a  background 

paper  concerning  the  history  and  legal  status  of  this  religion  by 

Dr.   Jay   Fikes,   a   post-doctoral   Fellow   at   the   Smithsonian 

Institution.    See.   Also  Generally.   Omer  C.   Stewart,   Peyote 

Religion — A  History  (Univ. Okla. Press,  1987)  .    As  noted  by  the 

California  Supreme  Court  in  People  v.  Woodv.  394  P.  2d  813,  817 

(1964)  : 

Peyotism  discloses  a  long  history.  A  reference  to  the 
religious  use  of  peyote  in  Mexico  appears  in  Spanish 
historical  sources  as  early  as  1560.  Peyotism  spread  from 
Mexico  to  the  United  States  and  Canada:  American 
anthropologists  describe  it  as  well  established  in  this 
country  during  the  latter  part  of  the  nineteenth  century. 
Today,  Indians  of  many  tribes  practice  Peyotism. 

[Quoted  by  Sen.  Daniel  K.  Inouye,  "Discrimination  and  Native 

American  Religious  Rights,"  23  UWLA  L  REV  1,  16  (1992)] 

Today,  this  ancient  American  religion,  centered  upon  the 

sacramental  use  of  peyote,  claims  an  estimated  membership  of  about 

250,000  Indians  in  the  membership  of  the  NACNA  alone  —  excluding 

the  members  of  the  many  other  autonomous  Native  American  Church 

organizations.   To  achieve  legal  status  in  the  United  States,  the 


20 


modern  embodiment  of  this  indigenous  religion,  beginning  in  1918, 

began   to   organize   into   formal,    state-chartered   church 

organizations.  Today,  major  Native  American  Church  groups  are:   1) 

Native  American  Church  of  North  America;  2)  Native  American  Church 

of   Navajoland;  3)  Native  America  Church  of  Wyoming;  4)  Native 

American  Church  of  Oklahoma;  5)  Native  American  Church  of  the  State 

of  South  Dakota;  6)  Crow  Indian  Peyote  Ceremonies  (no  state 

charter) . 

The  Native  American  Church  of  North  America  ("NACNA")  is  the 

only  nation-wide  and  international  NAC  organization.   Our  purpose 

is  stated  in  Article  2  of  the  Articles  of  Incorporation: 

The  purpose  of  the  Native  American  Church  of  North  America 
(NACNA)  shall  be  to  foster  and  promote  religious  belief  in 
Almighty  God  and  the  customs  of  the  several  tribes  of  Indians 
throughout  North  America  in  the  worship  of  a  Heavenly  Father; 
to  promote  morality,  sobriety,  industry,  charity  and  right 
living;  and  to  cultivate  a  spirit  of  self-respect  and 
brotherly  love  and  union  among  the  members  of  the  several 
tribes  throughout  North  America  .  .  . 

Originally,  NACNA  was  incorporated  in  1950  under  the  laws  of  the 

State  of  Oklahoma  as  the  "Native  American  Church  of  the  United 

States".   By  1955,  13  NACNA  chapters  were  incorporated  under  laws 

of  their  respective  states.   The  Church  name  was  changed  to  its 

present  form  to  accommodate  increased  membership  in  Canada  and 

Mexico.    Today,  the  NACNA  is  composed  of  46  affiliated  chapters 

located  in  24  states,  Canada  and  Mexico.  1   Though  a  comprehensive 


1  NACNA  Chapters  are  located  in:  Arizona  (2  Chapters), 
California,  Colorado,  Canada  (Chapters  in  British  Columbia, 
Alberta,  Manitoba,  and  Saskatchewan),  Idaho  (2  chapters),  Iowa, 
Illinois,  Kansas,  Mexico  (2  Chapters),  Missouri,  Montana,  Maryland, 
Minnesota,  New  Mexico  (2  chapters),  Nebraska  (3  Chapters),  Nevada, 
North  Dakota,  North  Carolina,  Oklahoma,  Oregon,  South  Dakota, 


21 


NACNA  membership  list  is  not  maintained  by  our  Church,  there  are 
250,000  members  of  the  NACNA,  according  to  low  estimates. 
Membership  criteria  are  one  quarter  decree  Indian  blood  quantum  or 
membership  in  a  federally  recognized  Indian  tribe,  within  which 
each  chapter  may  determine  its  own  local  membership  criteria. 

III.  The  Need  for  Federal  Legislation  —  Native  American  Church 
Orqaniiational  Efforts  and  Support:  From  a  national  perspective, 
the  NACNA  is  deeply  concerned  about  the  lack  of  legal  protection 
for  the  sacramental  use  of  peyote  in  bona  fide  religious  ceremonies 
of  the  Native  American  Church  under  American  law  and  social  policy. 
The  Smith  decision  has  opened  a  new  era  of  government  persecution 
against  traditional  religious  practitioners  and  discrimination 
against  Indians  solely  on  the  basis  of  their  religion.  See. 
Inouye,  "Discrimination  and  Native  American  Religious  Rights," 
supra.  See  also.  Native  American  Church  testimony  in  Senate  Indian 
Affairs  Committee  Field  Hearings  in  Portland  (Mar.  7,  1991),  Los 
Angeles  (Nov.  16,  1992),  Scottsdale  (Feb.  7,  1993),  Albuquerque 
(Feb.  8,  1993),  Minneapolis  (Mar.  16,  1993). 

Though  the  DEA  and  28  states  presently  exempt  Native  religious 
use  of  peyote  from  federal  and  state  drug  laws  ,  the  exemptions  are 
not  uniform  and  some  state  exemptions  are  inadequate.  Attachment 
6  is  a  chart  summarizing  these  exemptions.  Further,  no  legal 
protection  exists  in  22  states  whatsoever.   Therefore,  there  is  a 


Texas,  Washington,  Wisconsin  (7  Chapters) ,  Wyoming,  and  Utah  (2 
chapters) . 


22 


need  for  a  uniform  national  law  that  essentially  codifies  the 
existing  religious  exemption  of  the  U.S.  Drug  Enforcement  Agency 
(DEA) ,  21  C.F.R.  1307.31  (1984).  Attachment  7  is  a  letter  from  the 
DEA  to  me  indicating  its  support  for  such  legislation. 

Attachment  2  is  an  NACNA  Resolution  supporting  the  need  for  a 
new  federal  law  to  protect  our  religious  freedom.  More 
specifically,  NACNA  supports  the  language  presently  proposed  by 
Senator  Daniel  K.  Inouye's  Indian  Affairs  Committee  to  amend  the 
American  Indian  Religious  Freedom  Act,  42  USC  1996. 

To  help  secure  passage  of  such  urgently  needed  legislation, 
Attachment  3  is  an  NACNA  Resolution,  dated  May  11,  1990, 
establishing  the  Native  American  Religious  Freedom  Project  of  the 
Native  American  Church.  This  Project,  headed  by  Mr.  Reuben  Snake, 
has  worked  with  Native  American  Church  organizations  and  chapters 
around  the  country  to  educate  members  about  the  need  for  a  new 
federal  law  and  to  develop  support  for  specific  legislation  such  as 
that  now  being  developed  by  Senator  Inouye's  Indian  Affairs 
Committee  to  protect  the  sacramental  use  of  peyote. 

The  written  testimony  of  Mr.  Snake  filed  in  this  hearing  on 
behalf  of  the  Native  American  Religious  Freedom  Project  discusses 
the  significant  work  and  progress  of  that  Project  to  date.  As 
discussed  therein,  much  work  has  been  done  throughout  Indian 
country  since  the  date  of  the  Smith  decision  to  inform  NAC  members, 
chapters  and  organizations  about  this  issue.  Through  this  process, 
the  following  NAC  organizations,  through  their  duly  elected 
officers,   have  joined  the  American  Indian  Religious  Freedom 


23 


Coalition  and  are  working  together  to  develop  and  support 
amendments  to  the  American  Indian  Religious  Freedom  Act  being 
developed  by  Senator  Inouye:  1)  NACNA;  2)  Native  American  Church 
of  Navajoland;  3)  Native  American  Church  of  Oklahoma;  4)  Native 
American  Church  of  Wyoming;  5)  Native  American  Church,  Half -Moon 
Fireplace,  State  of  Wisconsin,  Inc.;  6)  Native  American  Church  of 
the  State  of  South  Dakota;  7)  Crow  Indian  Peyote  Ceremonies;  and  8) 
Religious  Freedom  Project  of  the  Native  American  Church.  See, 
Attachments  4-5. 

America's  NAC  community  is  a  diverse  and  autonomous  community, 
which  is  true  for  most  religious  faiths.  Nonetheless,  to  its 
credit,  significant  NAC  consensus  has  developed  supporting  the  need 
for  a  new  federal  law.  Indeed,  general  agreement  has  been  reached 
by  all  major  NAC  organizations  regarding  specific  legislative 
language  being  proposed  by  Senator  Inouye,  with  the  exception  of  3 
or  4  Chapters  of  the  Native  American  Church  of  Oklahoma  who, 
according  to  written  testimony  of  Ed  Red  Eagle  filed  in  this 
hearing  (pp. 1-2),  prefer  the  Texas  standard  limiting  statutory 
protection  to  Indians  with  quarter  degree  or  more  blood  quantum, 
rather  than  the  tribal  membership  criteria  favored  by  the  rest  of 
the  NAC  community  that  is  presently  proposed  in  Senator  Inouye ' s 
draft  legislation.2 


2-  With  the  sole  exception  of  Texas,  neither  the  federal  DEA 
regulatory  exemption  nor  any  of  the  other  27  states  maintain  a 
Native  religious  exemption  based  upon  a  blood  quantum  requirement. 
See.  Attachment  6.  The  Texas  statute  (12C  REV  STAT  TX  Art.  4476- 
15,  Sec.  4.11),  adopted  at  the  end  of  the  Termination  Era  in  1967, 
is  out  of  step  with  modern  federal  legislation  and  the  deference 
now  paid  to  tribal  membership  as  the  criteria  for  federal  Indian 


24 


Even  as  to  the  small  minority  which  prefers  the  Texas 
standard,  we  hope  that  further  discussions  can  help  resolve  their 
concerns.  While  NACNA  respects  their  view  (the  Texas  blood  quantum 
criteria  may  meet  the  membership  preference  of  their  chapters  — 
and  nothing  in  Senator  Inouye's  proposed  bill  would  interfere  with 
their  membership  criteria) ,  we  must  respectfully  disagree  with  it 
as  a  criteria  for  federal  legislation.  Additionally,  the  NACNA 
does  not  intend  to  diminish  Texas  regulatory  authority  over  peyote 
and  will  continue,  as  it  has  in  the  past,  to  work  closely  with 
Texas  officials  to  protect  the  harvest  and  distribution  of  peyote. 
In  short,  the  NAC  community  is  as  close  to  a  unanimous  view  on  the 
need  for  federal  legislation  as  any  church  could  hope  to  be  on  a 
given  issue,  with  all  of  the  community,  except  for  three  or  four 
chapters,  adopting  a  specfic  legislative  proposal. 

IV.  Conclusion  The  NACNA  —  including  its  attorneys  of  the  Native 
American  Rights  Fund  —  stands  ready  to  work  with  the  Subcommittee 
on  urgently  needed  legislation  to  protect  the  sacramental  use  of 
peyote  in  religious  ceremonies  of  our  faith.  We  commend  to  the 
Subcommittee  the  AIRFA  amendments  being  developed  by  Senator 
Inouye.  Chairman  Richardson,  we  request  that  similar,  if  not 
identical,  legislation  be  introduced  in  the  House  sponsored  by  you 
and  members  of  your  Subcommittee.  I  appreciate  your  leadership  on 
this  human  rights  issue. 


legislation  that  is  observed  by  Congress  out  of  respect  for  tribal 
soveriegnty  considerations. 


25 


In  closing,  while  the  NACNA  is  principally  concerned  with  the 
need  for  legislation  to  protect  the  traditional  use  of  peyote, 
NACNA  is  also  deeply  concerned  about  other  Native  religious  issues 
before  this  Subcommittee  and  the  Senate  Indian  Committee,  such  as: 

1)  religious  use  of  eagle  and  other  feathers  —  which  are 
important  aspects  of  Native  American  Church  beliefs  and  practices; 

2)  the  right  to  gather  natural  products  from  federal  lands,  such  as 
tipi  poles  needed  for  NAC  prayer  ceremonies;  3)  and  protection  of 
sacred  sites,  such  as  the  peyote  gardens  located  in  the  State  of 
Texas.  For  these  reasons,  we  commend  and  support  Congress  for 
addressing  these  important  aspects  of  Native  American  religious 
freedom. 

Coming  from  a  family  of  military  veterans,  who  has  defended 
the  American  Bill  of  Rights  on  foreign  shores,  it  is  my  plea  that 
Congress  acts  quickly  to  pass  a  law  extending  these  fundamental 
protections  to  Native  Americans.  1993  marks  500  years  since 
Columbus'  descendants  began  immigration  to  this  Hemisphere  seeking 
religious  freedom  and  the  time  is  now  appropriate  for  our  Nation  to 
guarantee  that  freedom  to  those  who  were  here  first.   Thank  you. 


26 

NATIVE  AMERICAN  CHURCH 

BACKGROUND  INFORMATION 


CONCERNING  THE  HISTORY,  LEGAL  STATUS  AND 
THE  NEED  FOR  FEDERAL  LEGISLATION 


By:   JAY  COURTNEY  FIKES,  Ph.D, 
February,  1992 


27 


TABLE  07   CONTENTS 

SUMMARY  x 

OUR  INALIENABLE  RIGHT  TO  WORSHIP  THE  CREATOR  3 

HISTORY  OF  MODERN  PEYOTE  MEETINGS  4 

SACRAMENTAL  PEYOTE  USE  IS  NOT  HARMFUL  7 

ANTHROPOLOGISTS  SUPPORT  THE  NAC  8 

ENDURING  EFFORTS  TO  GAIN  SELF-DETERMINATION  9 

PEYOTE  LISTED  AS  A  FEDERALLY  CONTROLLED  SUBSTANCE  11 
SUPREME  COURT  ABANDONS  FIRST  AMENDMENT  PROTECTION  OF  NAC     12 

WHAT  THE  NAC  WANTS  CONGRESS  TO  DO  16 

TREATING  FIRST  AMERICANS  AS  FULL  AMERICANS  17 

BIBLIOGRAPHY  19 


28 


NATIVE  AMERICAN  CHURCH 
BACKGROUND  INFORMATION 

Prepared  by  Jay  Courtney  Fikes,  Ph.D. 

"The  only  thing  necessary  for  the  triumph  of  evil 
is  for  good  men  to  do  nothing."  Edmund  Burke 

SUMMARY 

The  Native  American  Church  is  the  largest  indigenous  religion 
in  this  country.  Estimates  range  to  a  quarter  of  a  million 
members.  Indigenous  people  have  treated  the  peyote  cactus  as  a 
sacrament  for  at  least  10,000  years  in  Mexico,  and  at  least  7,000 
years  in  the  United  States.  The  Native  American  Church  (NAC)  is  the 
modern  embodiment  of  this  ancient  religious  way  of  life. 

The  NAC  is  in  a  crisis  situation.  Its  legal  existence  is 
jeopardized.  The  U.S.  Supreme  Court  in  1990  ruled  in  Employment 
Division  of  Oregon  v.  Smith  (493  U.S.  378)  that  the  First  Amendment 
does  not  protect  the  ritual  life  of  this  church  (i.e.,  the 
sacramental  use  of  peyote) . 

There  is  no  record  of  danger  or  harm  associated  with  the 
religious  practices  of  the  NAC.  The  Federal  Drug  Enforcement 
Administration  and  the  NAC  work  cooperatively  in  protecting  the 
distribution  and  use  of  peyote. 

Yet,  since  the  Smith  decision,  NAC  members  have  been 
unnecessarily  hindered  in  the  exercise  of  their  religion  by  the 
removal  of  the  constitutional  underpinning  that  had  protected  them. 
Indeed,  at  least  one  NAC  member  is  currently  being  prosecuted  for 
a  felony  for  practicing  what  earlier  courts  had  held  was  a 
constitutionally  protected  religion. 


29 


For  these  reasons  a  coalition  of  NAC  leaders,  advocates  and 

supporters  from  around  the  country  are  asking  Congress  to  put  back 

what  the  Supreme  Court  took  away  by  amending  the  American  Indian 

Religious  Freedom  Act  of  1978  to  create  a  specific  federal 

statutory  exemption  for  the  bona  fide  religious  use  of  peyote  by 

Indian  people  in  the  traditional  exercise  of  their  religion. 

FOR  MORE  INFORMATION  CONTACT: 

Reuben  A.  Snake,  Jr.,  Coordinator 

Native  American  Religious  Freedom  Project 

2329  Calle  Luminoso 

Santa  Fe,  New  Mexico  87505 

505  988-6431 

Jay  C.  Fikes,  Ph.D. 

Smithsonian  Institution  Post-doctoral  Fellow 

4023  Peppertree  Lane 

Silver  Spring,  MD  20906-2586 

301  460-7907 

James-  Botsford,  Director 
Indian  Law  Office 

P.O.  Box  6100 

Wausau,  HI  54402 

715  842-1681 

Walter  Echo-Hawk,  Senior  Attorney 

Native  American  Rights  Fund 

1506  Broadway 

Boulder,  CO  80302 

303  447-8760 


68-366  -  93  -  2 


30 


OUR  INALIENABLE  RIGHT  TO  WORSHIP  THE  CREATOR 

More  than  appreciation  for  diversity  of  religious  expression 

led  the  authors  of  our  First  Amendment  to  insist  that  "Congress 

shall  make  no  law  prohibiting  free  exercise  of  religion."   Their 

commitment  to  religious  freedom  was  based  on  their  conviction  that 

each  of  us  is  a  child  of  God.  Ever  since  we  declared  our 

independence  from  Great  Britain,  the  United  States  has  been 

sustained  by  faith  in  a  few  "self-evident  truths."  Is  the  right  to 

freely  worship  the  Creator  who  endowed  each  of  us  with  certain 

"inalienable  rights"  still  self-evident?   If  it  is,  no  member  of 

Congress  should  be  reluctant  to  enact  legislation  to  protect  the 

religious  liberty  of  over  250,000  members  of  the  NAC. 

Legal  protection  for  sacramental  peyote  use  of  NAC  members 

seemed  assured  in  1960,  when  the  Arizona  Supreme  Court  decided  that 

a  statute  prohibiting  possession  of  peyote  was  unconstitutional 

when  applied  to  Mary  Attakai,  a  Navajo  peyotist.   The  Arizona 

Supreme  Court  ruled  that: 

There  are  no  harmful  after-effects  from  the  use  of 
peyote.  Peyote  is  not  a  narcotic.  It  is  not  habit- 
forming.  ...  There  is  no  significant  use  of  peyote  by 
persons  other  than  Indians  who  practice  peyotism  in 
connection  with  their  religion.  ...  The  peyote  rite  is 
one  of  prayer  and  quiet  contemplation.  ...The  manner  in 
which  peyote  is  used  by  the  Indian  worshiper  is  ... 
entirely  consistent  with  the  good  morals,  health  and 
spiritual  elevation  of  some  225,000  Indians"  (Stewart 
1987:  307). 

In  1964,  the  California  Supreme  Court  ruled,  in  People  vs. 

Woody .  that  Navajo  railroad  workers  using  peyote  in  "honest 

religious  rites"  were  protected  by  the  First  Amendment  of  the 

United  States  Constitution  (Anderson  1980:  168). 

3 


31 


Since  1964,  nothing  in  the  beliefs  or  conduct  of  NAC  members 
has  changed.  Yet  in  1990  the  Supreme  Court  ruled,  in  Oregon 
Employment  Division  v.  Smith,  that  individual  states  could  outlaw 
peyote  use,  even  the  NAC's  bona  fide  religious  use,  without 
violating  the  First  Amendment  of  our  Constitution.  Scholars 
familiar  with  the  legislative  history  of  the  NAC  believe  non-Indian 
abuse  of  psychedelic  drugs  clouded  the  Supreme  Court's  judgment  in 
the  Smith  case.  It  is  now  up  to  Congress  to  champion  religious 
freedom  for  First  Americans. 

HISTORY  OF  MODERN  PEYOTE  MEETINGS 

Native  American  veneration  of  peyote  may  be  10,000  years  old 
(Stewart  1987) .  Peyote  cactus  buttons  discovered  in  Shumla  Cave  in 
southern  Texas  have  been  radiocarbon  dated  to  5000  B.C.  (Franklin 
1991)  .  The  Huichol  Indians  of  northwestern  Mexico  still  practice 
an  essentially  non-Christian,  but  clearly  sacramental,  use  of 
peyote.  Their  peyote  pilgrimage  may  have  been  introduced  by  2  00 
A.D.  (Fikes  1992).  Scholars  consider  it  the  oldest  aboriginal 
American  expression  of  reverence  for  peyote  in  North  America 
(LaBarre  1989:  256-259). 

The  exact  route  and  time  of  diffusion  of  the  Peyote  religion 
is  unclear  (LaBarre  1989;  Stewart  1987).  The  Carrizo  culture  which 
once  occupied  the  area  from  Laredo,  Texas  east  to  the  Gulf  of 
Mexico  is  evidently  the  one  whose  pre-Columbian  peyote  rituals  were 
first  observed  in  1649  (Stewart  1987:  45).  After  learning  the 
peyote  ceremony  from  the  Carrizo,  the  Lipan  Apache  probably  taught 
it  to  the  Kiowa,  Kiowa-Apache,  and  Comanche.   By  1874,  the  Kiowa 


32 


and  Comanche,  once  proud  warriors  of  the  southern  Plains,  had  been 
confined  to  reservations  in  Oklahoma.  The  loss  of  liberty 
entailed  by  reservation  life  brought  great  pain  and  suffering  to 
all  Native  Americans.  By  1890,  two  new  religious  movements  were 
spreading  rapidly  among  Native  Americans.  One,  the  Ghost  Dance,  has 
all  but  disappeared.  The  other,  the  Peyote  religion,  has  become  the 
most  popular  meeting  in  Native  America  except  for  the  pow-wow. 

In  the  early  1880's,  after  the  railroads  reached  Laredo,  Texas 
(a  town  in  the  area  where  peyote  is  gathered) ,  the  stage  was  set 
for  rapid  communication  between  various  tribes  of  North  America. 
The  railroads  also  made  it  easier  for  Native  American  tribes  who 
had  recently  been  confined  in  Indian  territory  (Oklahoma)  to  obtain 
their  sacrament.  Quanah  Parker  (Comanche) ,  the  most  famous  of  all 
Oklahoma  peyotists,  helped -bring  peyote  meetings  to  members  of  the 
Delaware,  Caddo,  Cheyenne,  Arapaho,  Ponca,  Oto,  Pawnee,  Osage,  and 
other  tribes  (Stewart  1987:  79).  John  Wilson,  a  Caddo,  is  credited 
with  disseminating  a  slightly  more  Christian  form  of  peyote  meeting 
(LaBarre  1989:  151-161;  Stewart  1987:  86-93).  From  these  and  other 
Oklahoma  peyotists,  two  slightly  different  types  of  peyote  meeting 
evolved.  Peyotists  are  sometimes  active  members  in  other  Christian 
churches . 

The  Peyote  meeting  spread  rapidly  to  tribes  north  of  Oklahoma. 
By  1908,  Albert  Hensley,  a  Winnebago  educated  at  Carlisle,  was 
defending  eloquently  his  Christian  religion.  For  Hensley  and  the 
Winnebago,  Peyote  was  a  Holy  Medicine. 


33 


...to  us  it  is  a  portion  of  the  body  of  Christ,  even  as 
the  communion  bread  is  believed  to  be  a  portion  of 
Christ's  body  by  other  Christian  denominations.  ... 
Christ  spoke  of  a  Comforter  who  was  to  come.  ...  it  never 
came  to  Indians  until  it  was  sent  by  God  in  the  form  of 
this  Holy  Medicine"  (Stewart  1987:  157). 

The  steady  proliferation  of  NAC  membership  among  diverse  North 
American  tribes  has  made  the  NAC  Native  America's  largest  church. 
Singing  accounts  for  approximately  sixty  per  cent  of  ritual 
devotions  in  NAC  meetings.  Each  of  about  twenty-five  worshipers 
seated  inside  the  tepee  has  ample  opportunity  to  sing,  accompanied 
by  a  small  drum  and  gourd-rattle.  Singing  often  occurs  in  Native 
American  languages,  but  English  phrases  like  "Jesus  only"  and  "He's 
the  Savior"  are  common.  Worshipers  sing,  drum,  pray,  meditate,  and 
consume  peyote  during  all-night  meetings.  Most  meetings  are  held 
for  healing,  baptism,  funerals,  and  birthdays.  The  NAC  has  no  full- 
time  paid  clergy.  However,  there  are  recognized  leaders  called 
"Roadmen"  who  have  been  given  the  authority  to  conduct  peyote 
prayer  services  by  predecessor  Roadmen.  Members  are  free  to 
interpret  Scripture  according  to  their  own  understanding.  Their 
morality  is  Christian  and  emphasizes  the  need  for  abstinence  from 
alcohol,  fidelity  to  one's  spouse,  truthfulness,  meeting  family 
obligations,  economic  self-sufficiency,  praying  for  the  sick  and 
for  peace.  Peyote  is  regarded  as  a  gift  from  God.  It  eliminates 
the  craving  for  alcohol,  the  most  widely  abused  drug  in  Indian 
country.  It  is  not  eaten  to  induce  visions.  It  heals  and  teaches 
righteousness.  Peyote  is  eaten,  or  consumed  as  a  tea,  according  to 
a  very  formal  ritual.  It  is  reverently  passed  clockwise  around  the 


34 


circle  of  church  members  on  several  occasions  during  the  course  of 
all-night  prayer  services. 

SACRAMENTAL  PEYOTE  USE  IS  NOT  HARMFUL 

Scientific  studies  of  sacramental  peyote  use  have  produced  no 
evidence  that  it  is  harmful.  In  fact,  there  is  some  scientific 
evidence  suggesting  that  peyote  may  have  antibiotic  properties 
(Anderson  1980:  96).  Eminent  psychiatrists,  including  the  late  Karl 
A.  Menninger,  M.D.,  Abe  Hoffer,  "Ph.  D.  and  M.D.,  Humphry  Osmond, 
M.D.,  Robert  L.  Bergman,  M.D.,  and  Bernard  C.  Gorton,  M.D.,  have 
all  reported  that  Native  American  sacramental  peyote  use  is 
beneficial,  or  certainly  not  at  all  harmful  (Anderson  1980:  165-66; 
Franklin  1991;  Stewart  1987:  306).  A  similar  opinion  has  been 
expressed  by  Everett  Rhoades,  M.D. ,  Director  of  the  Indian  Health 
Service. 

Dr.  Maurice  H.  Seevers'  (1958)  scientific  studies  clearly 
demonstrate  that  peyote  is  not  addicting.  Of  all  substances  tested 
by  Seevers,  alcohol  was  the  most  addicting.  Dr.  Seevers  stated 
that  "no  cases  of  (human)  addiction  to  peyote  have  ever  been  found" 
at  the  Federal  Narcotic  Farm  in  Lexington,  Kentucky.  His  laboratory 
experiments  proved  it  was  impossible  to  addict  dogs  or  monkeys  to 
peyote  (Franklin  1991) .  A  chromosome  damage  study  conducted  by  a 
group  of  California  physicians  on  the  Huichol  Indians  (whose 
unfaltering  tradition  of  sacramental  peyote  use  was  mentioned 
above)  showed  that  "no  serious  chromosome  damage  had  occurred" 
(Dorrance,  Janiger,  and  Teplitz  1975:  301). 


35 


ANTHROPOLOGISTS  SUPPORT  THE  NAC 

Anthropologists  have  steadfastly  defended  the  religious 
freedom  of  Native  American  peyotists  since  1890,  when  their  rituals 
were  first  observed  by  James  Mooney  of  the  Smithsonian.  In  1918, 
after  testifying  in  favor  of  Native  American  peyotists  at 
Congressional  hearings,  Mooney  helped  peyotists  of  various  Oklahoma 
tribes  obtain  a  legal  charter.  With  Mooney 's  help,  the  Native 
American  Church  was  officially  incorporated  in  1918  (LaBarre  1989: 
217,  260)  .  Another  anthropologist,  James  Slotkin  (1956)  became  a 
NAC  officer  and  legal  advocate.  Following  Slotkin 's  death  in  1958, 
Omer  Stewart  (1987:  xv)  became  the  leading  expert  witness  for  the 
NAC. 

In  1991  ninety-six  percent  of  those  members  of  the  American 

Anthropological  Association  who  voted  on  a  resolution  supporting 

the  Native  American  Church  approved.  The  resolution  states  that: 

...use  of  peyote  as  a  sacrament  is  in  no  sense 
harmful...  there  is  no  compelling  interest  that  justifies 
restricting  the  first  amendment  rights  of  members  of  the 
NAC  to  practice  their  religion;  therefore  be  it  resolved 
that  the  American  Anthropological  Association  supports 
NAC  efforts  to  protect  their  sacramental  use  of  peyote, 
and  calls  upon  the  federal  and  state  governments  to 
assure  that  NAC  members  have  full  legal  protection  for 
their  way  of  worship. 

Anthropologists  define  NAC   rituals   as   a   synthesis   of 

aboriginal  and  Christian  elements,  and  find  considerable  continuity 

between  peyote  paraphernalia  used  in  Mexican  Indian  rituals  and 

sacred  artifacts  in  NAC  meetings.   The  use  of  a  staff,  tobacco, 

feather  fans,  gourd  rattle,  incense,  fireplace,  and  emphasis  on  the 

four  directions  are  some  of  the  shared  elements  (LaBarre  1989; 


36 


Stewart  1987)  .  There  is  also  a  common  ceremonial  core  shared  by 
peyotists  in  both  types  of  NAC  meeting.  These  two  are  called  Half- 
Moon  (or  Tipi  Way)  and  Big-Moon  (or  Cross  Fire)  .  The  primary 
difference  seems  to  be  that  the  Bible  is  preferred  over  tobacco  in 
the  Cross  Fire  tradition  as  a  catalyst  for  prayer  (Steinmetz  1990; 
Stewart  1987:  91-93,  339). 

ENDURING  EFFORTS  TO  GAIN  SELF-DETERMINATION 

Native  American  respect  for  peyote  has  always  been 
misunderstood  by  European  immigrants  to  the  "New  World."  In  1620 
the  Spanish  Inquisition  denounced  peyote  as  diabolic  and  made  use 
illegal  (Anderson  1980:  2-7;  Stewart  1987:  20-30).  Persecution  of 
Mexican  Indian  peyotists  included  torture  and  death  (Stafford  1983: 
104)  .  After  nearly  three  centuries  of  Catholic  condemnation  of 
peyotists,  peyote  meetings  began  permeating  Indian  reservations 
north  of  the  Mexican  border.  It  was  during  an  era  of  agonizing 
cultural  disintegration,  which  became  acute  around  1880,  that 
peyote  was  accepted  as  a  remedy  and  inspiration  by  members  of  many 
Native  American  tribes. 

Once  sacramental  peyote  use  among  Oklahoma  tribes  was 
discovered,  zealous  missionaries  began  agitating  to  outlaw  it. 
Vigorous  anti-peyote  activity  was  organized  by  Christian 
missionaries  and  federal  Indian  agents  (Stewart  1987) .  Peyotists 
bravely  defended  their  religious  freedom  in  several  states  and  in 
Congress.  In  1933,  when  John  Collier  became  the  Commissioner  of  the 
BIA,  it  seemed  Native  American  religious  freedom  might  finally  be 
respected. 


37 


In  1945,  the  BIA  recognized  the  Native  American  Church.  In 
1954,  sacramental  peyote  use  was  legalized  in  South  Dakota.  In 
1957,  Montana  removed  a  34  year  old  ban  against  peyote.  In  1959, 
religious  use  of  peyote  was  legalized  in  New  Mexico.  This  trend 
toward  religious  tolerance  was  soon  eclipsed  by  fears  about  non- 
Indian  abuse  of  chemical  psychedelics. 

Responding  to  non-Indian  experimentation  with  psychedelic 
drugs,  peyote  became  illegal  in  California  in  1959  and  in  New  York 
in  1965.  In  1967  Texas  outlawed  peyote.  After  Judge  Kazan  found 
Texas  law  unconstitutional  when  applied  to  Native  Americans,  the 
Texas  legislature  amended  its  law.  Provisions  of  the  Texas  Narcotic 
Law  of  1969  exempt  only  persons  having  at  least  one-quarter  "Indian 
blood"  who  possess  a  valid  NAC  membership  card  (Stewart  1987:  246- 
247,  333)  .  This  exemption,  still  in  force  today,  is  of  vital 
significance  inasmuch  as  Texas  is  the  only  state  in  the  United 
States  where  peyote  is  plentiful. 

The  Texas  Department  of  Public  Safety  and  the  Justice 
Department  license  Peyote  dealers  that  may  lawfully  sell  Peyote  to 
members  of  the  Native  American  Church  who  have  appropriate 
certificates  of  membership  and  have  permits  to  possess,  harvest, 
purchase  and  transport  peyote  issued  by  Native  American  Church 
custodians  from  Churches  that  are  enrolled  with  the  Texas 
Department  of  Public  Safety  (Franklin  1991) . 

NAC  members  have  always  cooperated  with  officials  of  the  Texas 
Department  of  Public  Safety  and  the  D.S.  Justice  Department.  Those 
entities  enjoy  a  good  working  relationship  and  a  mutuality  of 

10 


38 


interest  in  seeing  that  peyote  does  not  come  into  unauthorized 

hands  and  become  abused. 

PEYOTE  LISTED  AS  A  FEDERALLY  CONTROLLED  SUBSTANCE 

In  1965,  the  Drug  Abuse  Control  Amendments  to  be  administered 

by  the  United  States  Department  of  Health,  Education,  and  Welfare, 

through  the  Food  and  Drug  Administration,  added  peyote  to  the  list 

of  controlled  drugs.     The  Commissioner  of  the  Food  and  Drug 

Administration  informed  the  Native  American  Church: 

on  the  basis  of  the  evidence  you  have  submitted,  we 
recognize  that  peyote  has  a  non-drug  use  in  bona  fide 
religious  ceremonies  of  the  Native  American  Church.  It 
is  not  our  purpose  to  bring  regulatory  action  based  on 
the  shipment,  possession,  or  use  of  peyote  in  connection 
with  such  ceremonies  (Franklin  1991) . 

In  1970,  Congress  passed  the  Controlled  Substances  Act  which, 

in  Section  202,  classified  peyote  as  a  "Schedule  1  Controlled 

Substance."   In  hearings  on  that  bill,  Congressman  Satterfield 

asked  if  passage  of  the  bill  would  imperil  the  NAC's  ancient 

religious  use  of  peyote.   The  Director  of  the  Bureau  of  Narcotics 

and  Dangerous  Drugs   (BNDD)   assured  him  that  the  regulatory 

exemption  protecting  the  religious  freedom  of  NAC  would  continue. 

We  consider  the  Native  American  Church  to  be  sui  generis. 
The  history  and  tradition  of  the  church  is  such  that 
there  is  no  question  but  that  they  regard  Peyote  as  a 
deity  as  it  were,  and  we'll  continue  the  exemption 
(Franklin  1991) . 

The  BNDD  Director  also  told  Satterfield  that  in  1965: 

Congress  was  going  to  write  in  a  specific  exemption,  but 
it  was  then  decided  that  it  would  be  handled  by 
regulation  and  we  intend  to  do  it  the  same  way  (Franklin 
1991) . 


11 


39 


This  regulatory  exemption  continues  today  and  is  found  at  21 

C.F.R.  §1307.31  (1984): 

The  listing  of  peyote  as  a  controlled  substance  in 
Schedule  1  does  not  apply  to  the  non-drug  use  of  peyote 
in  bona  fide  religious  ceremonies  of  the  Native  American 
Church.  Any  person  who  manufactures  peyote  for  or 
distributes  peyote  to  the  Native  American  Church, 
however,  is  required  to  obtain  registration  annually  and 
to  comply  with  all  other  requirements  of  law  (Anderson 
1980:  208). 

It  must  be  noted  that  Texas  dealers  cannot  "manufacture" 
Peyote,  which  is  a  small  spineless  cactus  (Lophophora  williamsii) . 
These  dealers  do  collect  and  sell  peyote  to  members  of  the  NAC.  To 
do  so  legally,  they  must  be  registered  with  the  Texas  Department  of 
Public  Safety  and  the  U.S.  Justice  Department. 

SUPREME  COURT  ABANDONS  FIRST  AMENDMENT  PROTECTION  OP  NAC 
From  1963  (in  Sherbert  vs.  Verner)  ,  to  1990  (in  Smith)  , 
whenever  compliance  with  state  or  federal  law  involved  a 
restriction  of  any  citizen's  religious  freedom,  the  government  was 
required  to  prove  it  had  a  "compelling  interest"  (e.g.,  public 
health  or  safety) .  After  a  government  demonstrated  it  had 
sufficient  cause  for  curtailing  religious  freedom,  it  was  obliged 
to  seek  the  least  restrictive  method  for  making  citizens  comply 
with  the  state  or  federal  law  at  issue.  In  Smith .  the  Supreme  Court 
abandoned  the  compelling  interest  test,  ruling  that  as  long  as  a 
law  is  allegedly  neutral  and  generally  applicable  the  Supreme  Court 
need  not  determine  whether  the  state  has  a  compelling  interest.  To 
the  NAC,  the  Supreme  Court's  ruling  in  Smith  seems  tantamount  to 
punishing  the  NAC  for  the  rebellious  and  bizarre  behavior  of  non- 
Indians. 

12 


40 


In  1984,  Al  Smith  and  Galen  Black  were  fired  after  telling 
their  employer  they  had  eaten  peyote  as  participants  in  NAC 
rituals.  Their  employer,  a  private  substance  abuse  treatment 
organization  in  Oregon,  claimed  that  the  firing  was  defensible 
because  of  its  policy  that  employees  be  "drug-free."  Smith's 
unemployment  benefits  were  denied  because  the  state  of  Oregon 
defines  peyote  as  a  "Schedule  1  Controlled  Substance"  (a  harmful 
drug)  instead  of  a  sacrament.  "  Although  sacramental  peyote  use 
could  be  considered  a  crime  in  Oregon,  the  Oregon  Supreme  Court, 
thinking  First  Amendment  protection  of  NAC  rituals  was 
constitutionally  required,  ruled  in  favor  of  Smith.  When  Oregon's 
Attorney  General  appealed,  the  U.S.  Supreme  Court,  thinking  that 
the  classification  of  peyote  as  a  "Schedule  1  Controlled  Substance" 
represented  a  neutral  and  .generally  applicable  law,  ruled  against 
Smith. 

From  1980  to  1988,  the  quantity  of  peyote  confiscated 
nationwide  by  the  DEA  was  only  19.4  pounds.  DEA  agents  confiscated 
a  grand  total  of  5.6  kilograms  (about  12  pounds)  of  peyote  in  1981. 
No  peyote  was  seized  in  1980,  1982,  or  1983.  In  1987,  only  two 
kilos  were  confiscated  (Fikes  1992:  215).  But  the  facts  have  not 
erased  the  memories  of  sensational  media  coverage  of  psychedelic 
use  by  non-Indians.  The  psychedelic  craze  of  the  1960 's  is  still 
ingrained  in  the  minds  of  most  Americans.  It  was  non-Indian 
experimentation  with  psychedelics  which  passage  of  the  1970 
Controlled  Substances  Act  was  designed  to  deter.  This  federal  law, 
and  state  laws  modeled  upon  it,  played  a  decisive  role  in  the 

13 


41 


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 

14 


42 


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  free- 
exercise  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) . 


15 


43 


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  Solar z  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: 

[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.  The 
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.  Woodv.  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 

16 


44 


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 

17 


45 


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  immigrant- 
Americans  . 


18 


46 


President  Johnson's  March  6,  1968  statement  to  Congress  speaks 

to  the  unmet  need  for  Indian  self-determination.  It  is  a  fitting 

preamble  for  the  national  legislation  the  NAC  seeks. 

the  Federal  government  can  best  be  a  responsible 

partner  in  Indian  progress  by  treating  the  Indian 
himself  as  a  full  citizen,  responsible  for  the  pace  and 
direction  of  his  development.  But  there  can  be  no 
question  that  the  government  and  the  people  of  the  United 
States  have  a  responsibility  to  the  Indians.  In  our 
efforts  to  meet  that  responsibility,  we  must  pledge  to 
respect  fully  the  dignity  and  the  uniqueness  of  the 
Indian  citizen. 

That  means  partnership — not  paternalism. 

We  must  affirm  the  right  of  the  first  Americans  to  remain 
Indians  while  exercising  their  rights  as  Americans. 

We  must  affirm  their  right  to  freedom  of  choice  and  self- 
determination. 

And  we  must  assure  the  Indian  people  that  it  is  our 

desire  and  intention  that  the  special  relationship 
between  the  Indian  and  his  government  grow  and  flourish. 
For  the  first  among  us  must  not  be  last  (Prucha  1990:  249). 

The  NAC  urges  all  Americans  to  join  us  in  asking  Congress  to 

honor   its   trust   responsibility   with   first   Americans,   and 

simultaneously  fulfill  our  First  Amendment  guarantee  of  religious 

liberty  for  citizens  of  all  creeds  and  cultures.   The  national 

legislation  we  propose  is  imperative  to  establish  First  Americans 

as  fully  American. 

BIBLIOGRAPHY 

Aberle,  D.F.  The  Pevote  Religion  Among  the  Navajo.  Chicago:  Aldine 
Publishing  Co.,  1966. 

Anderson,  Edward  F.  Peyote:  The  Divine  Cactus.  Tucson:  University 
of  Arizona  Press,  1980. 

Dorrance,  David  L. ;  Janiger,  Oscar;  and  Teplitz,  Raymond  L.  "Effect 
of  Peyote  on  Human  Chromosomes."  Journal  of  the  American  Medical 
Association  234  (1975):  299-302. 

19 


47 


Fikes,  Jay  C.  Huichol  Indian  Identity  and  Adaptation.  Unpublished 
doctoral  dissertation.  University  of  Michigan.  Ann  Arbor: 
University  Microfilms,  1985. 

Fikes,  Jay  C.  Carlos  Castaneda.  Academic  Opportunism,  and  the 
Psychedelic  Sixties.   Lanham,  MD:  Madison  Books,  1992. 

Franklin,  Virgil.  "An  Overview  of  the  Native  American  Church  from 
its  Inception  To  The  Present  Date."  Essay  reprinted  from  the 
Cheyenne  and  Arapaho  Bulletin.  Distributed  on  March  9,  1991  to  the 
Senate  Select  Committee  on  Indian  Affairs. 

LaBarre,  Weston.  The  Peyote  Cult.  Norman:  University  of  Oklahoma 
Press,  1989. 

Prucha,  Francis  P.   Documents  of  United  States  Indian  Policy. 

Lincoln:  University  of  Nebraska  Press,  1990. 

Slotkin,  J.S.  The  Peyote  Religion:  A  Study  in  Indian-White 
Relations.   Glencoe,  IL. :  Free  Press,  1956. 

Stafford,  Peter.  Psvchedelics  Encyclopedia.  Los  Angeles:  J. P. 
Tarcher,  1983. 

Steinmetz,  P.B.   Pipe.  Bible,  and  Pevote  Among  the  Oolala  Lakota. 

Knoxville,  TN.:  University  of  Tennessee  Press,  1990. 

Stewart,  Omer  C.  Peyote  Religion:  A  History.  Norman,  OK. : 
University  of  Oklahoma  Press,  1987. 


20 


48 


Native  American  Church  of  North  America 


-  EXECUTIVE  OFFICERS  - 
PRESIDENT 
DOUCLAS  J.   LOHC  -  UINNE3AC0 
VICE  PRESIDENT 
TOKT  LEE  -  NAVAJO 
TREASURER 
HARLEY  COODBEAR  -  HANDAS-KIDAISA 
SECRET  AXY 
HOPE   J.   SKTia  -  VTNNEBACO 
EDITOR 
REV.AKTBOKT  SX1TH.SR.   -  VINNEJACO 


United  States.  Canada  and  Mexico 


RESOLUTION 

WHEREAS,    The  Native  American  Church  of  North  America 
(NACNA)  is  a  duly  constituted  organization 
representing  the  interests  of  many  Native 
American  Church  chapters  and  members,  and 

WHEREAS,   those  interests  include  the  prote^ion  and 

preservation  of  our  traditional  religious  U6e 
of  the  Sacrament  Feyote,  and 

WHEREAS,    our  sacramental  use  of  Peyote  is  seriously 

jeopardized  by  the  U.  S.  Supreme  Court  decision 
in  Employment  Division  of  Oregon  v.  Smith  (1990) 
which  removed  constitutional  protections  for 
the  free  exercise  of  our  religion,  and 

WHEREAS,    the  Native  American  Church  of  Navajoland  is 

intending  to  articulate  these  concerns  to  the 
National  Conference  of  State  Legislatures  in 
Orlando,  Florida  on  August  Ik,   1991; 

NOW,  THEREFORE  BE  IT  RESOLVED  that  NACNA  does  hereby  endorse 
and  fully  support  the  efforts  of  the  Native 
American  Church  of  Navajoland  to  seek  the  under 
standing  end  support  of  the  National  Conference 
of  State  Legislatures  in  an  effort  to  secure 
Federal  legislation  to  protect  our  Native 
American  Church  by  amending  the  American  Indian 
Religious  Freedom  Act  for  the  purpose  of  protecting 
our  sacramental  use  of  Peyote  in  our  bonafide 
religious  services  and  ceremonies. 


CERTIFICATION 
I,  the  undersigned,  certify  that  the  foregoing  resolution 
was  duly  adopted  by  an  affirmative  vote  of  10  for,  0 
against,  and  0  abstaining,  by  the  duly  called  Special 
Summit  Conference  and  Officers  Meeting  held  on  August  J» 
1991.  at  Winnebago,  Nebraska. 


ATTEST: 


HopeVB.  Smith,  Secretary 

Native  American  of  North  America 


49 


Resolution  of  the 
Native  American  Church  of  North  America 


Resolution  #  1 


the  recent  Oregon  V.  Smith  decision  the 


hereas,  In  the  recent  Oregon  V.  Smith  decision  the  U.S.  Supreme 
ourt  continued  its  attack  of  Native  Americans  right  to  freedom 
f  religion  under  the  First  Amendment,  in  a  ruling  that  has 
hilling  implications  for  all  religions 


Whereas,  The  Rehnquist  Court  for  lack   of  • 
withdrew  constitutional  protection  for  the 


spiritual  enlightenment 
sacramental  use  of  the 
divine  herb,  Peyote  in  the  Native  American  Church 


Whereas,  The  court  ruled  that  the  Constitution  does  not  exempt 
any  religious  practices  from  state  laws  that  don't  single  out  a 
particular  religion  or  practice  for  regulation 

I 
i 

Whereas,  this  ruling  could  eventually  affect   mainline  faiths,  it 

is   now   an   immediate   threat   to  the  Native  American  Church  and 

other  minority  faiths 

Whereas,  the  Native  American  Church  is  a  Christian  church  that 
uses  the  divine  herb,  Peyote,  as  a  sacrament  in  the  same  way  that 
other  churches  use  bread  and  wine 


Now  therefore  be  it  resolved  that  the  Native  American  Church 
establishes  the  Native  American  Religious  Freedom  Project  to  work 
to  alert,  educate  and  organize  religious  and  moral  leaders,  and 
the  media  in  this  country,  around  this  clear  and  present  threat 
to  the  very  existence  of  the  Native  American  Church,  and  to  basic 
religious  freedom  for  all. 

Be  it   further  resolved  that  the  Native  American  Church  actively 

solicits  the  endorsement  and   the   support   of   all   national  and 

international  religious,  human  and  civil  rights  organizations  to 
assist  in  this  process. 

Be  it  finally  resolved  that  the  Native  American  Church 
emphatically  asserts  that  the  American  public  must  expand  jts 
awareness  of  the  positive  and  beneficial  uses  of  the  sacrament 
Peyote  among  Native  American  Church  Members,  and  enact  laws  which 
reflect  that  expanded  awareness. 

Certification 

This  Resolution  is  approved  by  a  vote  of  ,17  for  and  0   against  at 

a  duly   called  meeting   held  on  May  11,  1990  at  the  Denver  Indian 

Center  in   Denver,   Colorado   with   two   Executive  officers,  six 

Delegates-at-large  and  thirteen  chapters  officially  represented. 


Si  gned 

,4— 


■EXS. 


_(k^*i 


Jeanet te  Rice, 
Recording  Secretary 


50 


NATIVE  AMERICAN  CHURCH  OF  NAVAJOLAND,  INC. 

P.O.  BOX  1570  •  CHINLE.  ARIZONA  86503 


POSITION  STATEMENT 
OF 
NATIVE  AMERICAN  CHURCH  OF  NAVAJOLAND,  INC. 
ROBERT  B.  WHITEHORSE,  PRESIDENT 


mStOtXT 
■.1 

ojf*o«boawu 

sccketut 
(■lcuchato 

TOASUUft 

Oman  c  luaoM 


ubv«  o»nct» 

LOJT*  Vf  HCI« 


We,  members  of  the  Native  American  Church  of  Navajoland,  Inc. 
contend  that  our  human  rights  shall  be  guaranteed  and  protected  by  the 
Bill  of  Rights  through  the  United  States  Constitution. 

The  Native  American  Church  of  Navajoland,  Inc.  further  contend 
the  use  of  such  items  as  the  sacrament  'peyote',  eagle  feathers,  sissor- 
tails,  feathers  of  other  spirrual  birds  and  sacred  objects  necessary  to 
the  survival  and  preservation  of  Navajo  religion  and  culture. 

We  believe,  our  sacrament  peyote  as  being  an  integral  part  of  the 
Navajo  culture  which  is  protected  by  P.L.  95-341,  92  Stat.  469  (American 
Indian  Religious  Freedom  Act);  P.L.  91-513  (Comprehensive  Drug  Abuse 
Prevention  &  Control  Act  of  1970);  Texas  Controlled  Substance  Act  of 
1983  and  Title  17,  Section  394(c)  of  the  Navajo  Tribal  Code. 

It  is  to  no  surprise  that  we,  the  Indian  people  still  maintain  a 
rich  heritage,  culture,  language  and  tradition  in  our  everyday  lives. 
Our  belief  in  religion  has  linked  us  to  tie  these  richness  together  to 
firmley  believe  in  our  religious  ceremonies.   It  is  for  this  purpose  that 
our  use  of  the  sacrament  peyote  has  become  an  integral  part  of  our  tradi- 
tional religions. 

The  Native  American  Church  of  Navajoland,  Inc.  have  shared  their 
legends  of  the,  "Fifth  Sacred  Herb"  known  as  the  sacrament  peyote.  We 
have  shared  this  legend  with  the  honorable  Chief  Justice  of  the  United 
States,  William  Rehnquist  in  March,  1990.  It  is  our  hope  that  we  will 
bring  a  better  world  of  understanding  to  others  including  the  federal 
government  to  know  and  trust  in  our  belief  of  the  sacrament  peyote  as 
a  bona  fide  religious  ceremony. 


51 


Through  Indian  Treaty  Rights,  it  has  been  stated  by  the  federal 
courts  that  the  United  States  Congress  would  oversee  and  be  given  the 
responsibility  to  preserve  our  rich  heritage  and  culture  in  every  aspects. 
The  United  States  Congress  has  recognized  and  responded  to  its  duty  by  the 
enactment  of  Public  Law  95-341  (American  Indian  Religious  Freedom  Act). 
It  has  afforded  our  Indian  nations,  the  best  opportunity  to  correct  past 
injustices  and  has  also  begun  to  reanew  to  those  who  adhere  to  tenets  of 
traditional  native  religions. 

Recently,  the  Native  American  Church  of  Navajoland,  Inc.  has  been 
reassured  its  recognition  as  a  non-profit  Native  American  Church  organi- 
ation  accommodating  the  practice  of  the  sacrament  peyote  in  a  bona  fide 
religious  ceremony  through  Navajo  Tribal  Council  Resolution  CF- 14-90  and 
State  Memorial  Bills  — New  Mexico  Senate  Joint  Memorial  15  and  Arizona 
Senate  Consurrent  Memorial  1001.   The  passage  of  these  two  Memorial  Bills 
will  suffice  our  legislative  presentation  at  the  National  State  Legisla- 
ture Conference  in  Orlando,  Florida.   Our  request  is  to  amend  the  exist- 
ing American  Indian  Religious  Freedom  Act  (P.L.  95-341)  to  exclusively 
specify  the  sacrament  peyote  as  a  bona  fide  religious  ceremony. 

The  Native  American  Church  of  Navajoland,  Inc.  further  requests 
for  your  efforts  and  support  to  propose  another  legislative  bill  that 
will  encompass  the  United  States  Congress  to  make  necessary  provisions 
in  the  American  Indian  Religious  Freedom  Act  to  include  the  sacrament 
peyote  as  a  bona  fide  religious  ceremony. 


B.  Whitehorse>~JExesrdent 
Native  American  Church  of  Navajoland,  Inc. 


&Mcuiiv«  Of  fie 

PrasidBrrt 
Scott  S.    Aaaric 


«,  Sr. 


52 


Native  American  Church  Of  South  Dakota,  Inc. 
Post  Office  Box  560 
Pine  Ridge,  South  Dakota   57770 
State  Minister 
Rev.  Emerson  Spider,  Sr. 


RESOLUTION 


Whereas,  The  Native  American  Church  of  State  of  South  - 
Dakota  is  a  duly  constituted  organization  re- 
presenting the  interests  of  many  Native  American 
Church  chapters  and  members,  and 


a  sho*  Whereas, 


last. 

TTd  Lay*  tod,  Sr. 


those  interests  include  the  protection  and 
preservation  of  our  traditional  religious  use 
of  the  sacrament,  peyote,  and 


Ol.rl«  s 


Whereas,  our  sacrament  use  of  peyote  is  seriously  jeopardize 
by  the  O.S.  Supreme  Court  decision  in  Employment 
Division  of  Oregon  vs.  Smith;  ( 1990) , . vhich  re- 
moved constitutional  protections  for. '.the  free 
exercise  of  our  religion,  and 

Whereas,  The  Native  American  Church  of  Navajoland  is  intend- 
ing to  articulate  these  concerns  to  the  National 
Conference  of  State  Legislatures  in  Orlando, Fla. 
on  August  14,  1991; 

NOW  THEREFORE  BE  IT  RESOLVED;  that  the  Native  American  Church  of  South  - 

Dakota  does  hereby  endorse  and  fully  support  the 
efforts  of  the  Native  American  Church  of  Navajo- 
land, to  seek  the  understanding  and  support  of 
the  National  Conference  of  State  Legislatures  in 
an  effort  to  secure  Federal  legislation  to  protect 
our  Native  American  Church,  by  amending  the 
American  Indian  Religious  Freedom  Act  for  the  ■ 
purpose  of  protecting  our  sacramental  use  of 
peyote  in  our_bona  fide  religious  services  and 
ceremonies. 


L/Jackie  Never  Miss  A  Shot, 
Secretary,  N.A.C.  of  State 


South  Dakota 


A-T-T-E-S-T 


3cott  American  Horse,  President 
N.A.C.  State  of  South  Dakota 


53 


NATIVE  AMERICAN  CHURCH,  HALF-MOON  FIREPLACE 
STATE  OF  WISCONSIN.  INC. 


STATEMENT  OF  SUPPORT 

FOR 

AIRFA  AMENDMENTS 

The  Native  American  Church,  Half -Moon  Fireplace,  State  of 
Wisconsin,  Inc. ,  supports  the  proposed  amendments  to  the  American 
Indian  Religious  Freedom  Act  concerning  the  traditional  use  of 
peyote.  We  are  aware  of  the  significance  of  the  April  17,  1990 
Supreme  Court  decision,  Employment  Division  of  Oregon  v.  Smith. 
(493  U.S.  378)  and  the  adverse  affect  upon  the  Native  American 
Church.  The  impact  of  the  Supreme  Court  decision  has  varied 
negative  implications  for  members  in  all  states.  Even  among  the 
states  with  exemptions  the  risk  of  reversal  exists. 

Additionally,  our  church  members  run  the  risk  of  felony 
prosecution  when  transporting  the  lawfully  acquired  peyote  from 
Texas  to  our  home  church  chapter;  and  we  are  also  legally 
prohibited  from  joining  with  our  friends  and  relatives  in  other  NAC 
chapters  for  the  purpose  of  prayer  in  other  states  which  may  not 
have  a  law  that  is  respectful  of  our  tradition. 

Although  the  State  of  Wisconsin  enacted  in  its  1978  drug  law 
an  exemption  for  the  bona  fide  religious  use  of  peyote,  uniform 
legal  protection  through  the  federal  legislative  process  is  well- 
advised.  We  call  upon  Congress  to  exercise  its  trust 
responsibility  by  responding  to  the  need  to  safeguard  the 
traditional  use  of  peyote. 

Following  the  lead  of  the  Native  American  Church  of  the  United 
States,  subsequently  changed  to  the  Native  American  Church  of  North 
America,  our  organization  filed  Articles  of  Incorporation  under 
Wisconsin  Statutes,  Chapter  181,  on  November  13,  1953.  The  Native 
American  Church,  Half-Moon  Fireplace,  State  of  Wisconsin,  Inc., 
organized  "to  promote  the  Christian  religious  belief  of  the 
Winnebago  and  other  tribes  and  all  Indians  within  the  United 
States;  to  teach  the  scriptures,  morality,  kindly  charity  and  right 
living,  and  to  cultivate  a  spirit  of  respect  and  brotherly  love  and 
union  among  all  Indians;  and  other  benevolent  charitable  and 
reformatory  purposes." 

The  American  Indian  Religious  Freedom  Act  (AIRFA)  passed  in 
1978,  was  signed  into  law  by  President  Carter,  who  stated  in 
signing  it,  "to  protect  and  preserve  the  inherent  right  of  American 
Indian...  people  to  believe  express  and  exercise  their  traditional 
religions."  As  a  policy  law,  with  no  specific  protections  and 
enforcement  mechanisms  for  the  Native  American  Church,  AIRFA 
requires  an  amendment  to  give  specificity  and  enforcement 
mechanisms  to  it.  The  speedy  passage  of  the  proposed  amendment 
will  correct  the  current  neglect  of  legal  protection  of  an 
estimated  one  quarter  of  a  million  Native  American  Church  members 


54 


for  the  bona  fide  religious  use  of  peyote.  Moreover,  the  proposed 
protections  will  serve  to  preserve  and  protect  Indian  cultures  and 
the  traditional  use  of  the  peyote  cactus  in  Indian  ceremonies. 
Among  Winnebago  tribal  members  the  cultural  cohesiveness  is 
manifested  in  the  maintenance  of  a  complex  kinship  system,  tribal 
values  and  the  ancestral  language.  The  practice  of  the  Native 
American  Church  has  contributed  to  the  maintenance  of  cultural 
integrity  and  cohesiveness.  Winnebago  tribal  members  will  provide 
testimony  to  the  significant  role  of  the  use  of  the  sacrament 
peyote  in  combatting  alcohol  and  drug  abuse.  Thus,  all  of  the 
foregoing  is  highlighted  in  support  of  the  amendment  proposed  to 
the  new  Congress. 

We  recommend  the  passage  of  the  proposed  Amendment  to  the 
American  Indian  Religious  Freedom  Act  concerning  the  traditional 
use  of  peyote.  In  addition,  we  recommend  the  provision  for  the 
hiring  and  employment  of  American  Indians  in  federal  agencies 
dealing  with  issues  identified  in  the  amendment. 

Dated:  / -   9  -  ?<3 BY :  ^\J  Am^i (_     A£*L^t)^ 

GEORGE  H^NDSLEY,    Presj^/nt 


55 


NATIVE  AMERICAN  CHURCH,  HALF-MOON  FIREPLACE 
STATE  OF  WISCONSIN,  INC. 


WHEREAS,  the  Native  American  Church,  Half-Moon  Fireplace, 
State  of  Wisconsin,  Inc.,  is  a  bona  fide  church  organization  filed 
under  Wisconsin  Statutes,  Chapter  181,  on  November  13,  1953;  and 

WHEREAS,  the  Native  American  Church,  Half -Moon  Fireplace 
convened  a  special  meeting  on  December  27,  1992,  at  Tomah, 
Wisconsin;  and 

WHEREAS,  the  cultural  and  spiritual  survival  of  Native 
American  people  is  closely  tied  to  the  continuation,  preservation 
and  well-being  of  our  tribal  religious  traditions;  and 

WHEREAS,  the  right  to  worship  is  a  fundamental  human  right 
that  most  Americans  take  for  granted;  and 

WHEREAS ,  in  Lvnq  v.  Northwest  Indian  Cemetery  Protective 
Association,  and  in  Employment  Division.  Department  of  Human 
Resources  v.  Smith,  the  Supreme  Court  ruled  that  the  First 
Amendment  does  not  protect  traditional  Native  American  sacred  sites 
from  destruction  (Lvnq) ,  or  the  peyote  religion  of  the  Native 
American  Church  (Smith) ;  and 

WHEREAS,  the  American  Indian  Religious  Freedom  Act  has  not 
prevented  the  federal  government  from  unnecessarily  engaging  in 
activities  which  impair  or  disturb  Native  American  religious 
practices  on  federal  lands. 

THEREFORE,  BE  IT  RESOLVED,  that  the  Native  American  Church, 
Half -Moon  Fireplace  urges  Congress  to  enact  legislation  that  will 
protect  Native  American  religions  and  basic  religious  freedom, 


56 


similar  to  that  recently  circulated  to  tribal  leaders  by  Senator 
Inouye. 

BE  IT  FURTHER  RESOLVED,  that  to  that  end,  the  Native  American 
Church,  Half -Moon  Fireplace  petitions  Congress  to  immediately  hold 
hearings  on  legislative  proposals  that  have  been  developed  to 
protect  Native  American  religious  freedom,  with  the  goal  of  passing 
legislation  by  the  end  of  1993;  and 

BE  IT  FURTHER  RESOLVED,  that  the  United  States  Government, 
through  its  deportments,  apprcpriata  mcr.ay  and  Indian  personnel  to 
implement  the  American  Indian  Religious  Freedom  Act. 

CERTIFICATION 

I,  the  undersigned,  as  Secretary  of  the  Native  American 

Church,  Half-Moon  Fireplace,  State  of  Wisconsin,  Inc.,  hereby 

certify  that  the  Native  American  Church,  Half -Moon  Fireplace,  State 

of  Wisconsin,  Inc. ,  of  whom  3  constituting  a  guorum  were  present  at 

the  meeting  duly  called  and  convened  the  27th  day  of  December, 

1992,  and  the  foregoing  resolution  was  duly  adopted  at  said  meeting 

by  an  affirmative  vote  of  8  members,  0  opposed,  0  abstaining,  and 

that  said  resolution  has  not  been  rescinded  or  amended  in  any  way. 

NATIVE  AMERICAN  CHURCH, 
HALF-MOON  FIREPLACE, 
STATE  OF  WISCONSIN,  INC. 


Dated 


JkaawxteAs^g,  J99A. 


HELENE  C.  LINCOLN,  Secretary 


57 


for  Arapahoes  &  other  tribes 


14 1»< 


lu.  No.  1 


mm?** 


WHEREAS,  The  use  of  Peyote,  also  known  as  Lophophora  Williamsii  as 
a  sacrament,  and  other  herbs  and  plants,  Is  widespread 
among  American  Indians;  and 

WHEREAS,  The  said  position  paper  discusses  the  problems 
surrounding  the  use  of  Peyote,  also  known  as  Lophophora 
Williamsii,  as  a  sacramental  herb,  and  other  herbs  and 
plants  of  the  Native  American  Church,  and  Critical 
Issues;  and 

WHEREAS,  In  Lvnq  v.  Northwest  Indian  Cemetery  Protective 
Association,  and  in  Employment  Division,  Dept.  of  Human 
Resources  v.  Smith  the  Supreme  Court  ruled  that  the  First 
Amendment  does  not  protect  traditional  Native  American 
sacred  sites  from  destruction  (Lyng) ,  or  the  peyote 
religion  of  the  Native  American  Church  (Smith) : 

NOW,  THEREFORE,  BE  IT  RESOLVED,  That  this  Organization  has  a  State 
Charter  to  deal  with  other  organ! 2 at ions,  including 
Federal,  State,  and  local  governments,  toward  the 
solution  of  the  problems  surrounding  the  acquisition, 
possession,  and  use  of  Peyote,  also  known  as  Lophophora 
Williamsii,  as  a  sacrament,  and  the  use  of  other  herbs 
and  plants,  in  the  Native  American  Church  rituals  and 
ceremonials;  and 

BE  IT  FURTHER  RESOLVED,  That  the  Organisation  is  authorized  and 
hereby  directed  to  seek  all  manner  of  solution  to  the 

.  ..  issues  surrounding  Peyote,  including  administrative 
relief  and  judicial  and  legislative  remedies,  and  to  seek 
and  obtain  the  advocacy  and  support  of  all  agencies, 
including  Federal,  State,  and  local  governments,  with  the 
First  Amendment  of  the  Constitution  of  the  United  States 
of  America,  with  appropriate  exemptions. 


-ft 


Tie  foregoing  resoloUoo,  was  adopted   by  a  majority  vote  or  the  Native   American   Church 
"« — QAaaAUuutj.    4      '*<?? . 

Abraham  Spotted  'Elk,  Sr.,  rrcsfflHt 
Native  American  Church  of  Wyoming 
for  Arapahoes  &  Other  Tribes 


58 


That  tba  Bati-re  American  Church  of  Wyoming  for  Arapahoe s  a 
othar  Tribes  nrgee  Congress  to  enact  proposed  legislation,  similar 
to  that  recently  circulated  to  tribal  leaders  by  6eaator  Daaial 
Xnouye,  that,  will  protect  Satire  American  religions  and  basic 
religious  freedom,  and  to  that  end  the  Satire  American  Church  of 
Wyoming  for  Arapahoe*  a  Othar  Tribes  petitions  Congreae  to 
immediately  hold  bearings  on  legislative  proposals  that  ha-re  been 
developed  to  protect  Sative  American  religious  freedom,  with  the 
goal  of  passing  legislation  by  the  and  of  1992. 


59 


DATE:  /—  /,-?_2- 

m 


*m«rican  Indian  culture,  tradition/  and  history  are  the  basis  for 
Indian  identity,  values,  and  uniqueness  in  the  United  States  of 
America.  There  is  a  common  background  for  Indian  culture, 
tradition,  and  values,  particularly  in  the  area  of  worship,  life- 
styles, and  the  perception  of  the  Indian  to  his  environment.  This 
is  to  the  extent  that  it  has  been  correctly  represented  that  the 
"American  Zadian  lived  in  harmony  with  nature."  This  was  and 
continues  to  be  true  witb  the  traditional  Indian  in  his  manner  and 
style  of  worship,  which  manner  extends  into  practically  erery  facet 
of  the  Indian  way,  including  culture,  social,  economic,  and  other 
areas  of  the  Indian  life-style. 

Similarly,  Indian  worship  is  not  readily  divided  among  many  forms 
as  it  is  with  Christianity  and  other  religions.  The  separation  of 
church  and  state  generally  does  not  apply  to  traditional  Indian 
situations,  although  there  is  exception  to  this,  as  with  any  rule. 

Also  unique  are  the  sites,  mediums,  and  methods  of  Indiaa 
meditation  and  worship.  The  Indiaa  uses  permanent  sites,  semi- 
permanent sites,  and  almost  every  location  for  his  worship.  Be 
uses  every  form  of  nature,  including  animals,  plants,  birds,  and 
every  form  of  living  and  non-living  things  in  his  worship,  which 
practices  frequently  extend  to  other  areas  of  the  Indian  life- 
style. The  known  is  extended  to  the  unknown,  such  as  the  relating 
of  worship  to  the  morning  star. 

In  view  of  this  complex  but  common  background,  it  is  now  time  for 
the  American  Indian  peoples  of  this  country  to  be  considering  a 
position  from  which  the  contemporary  Indian  who  has  been  away  from 
the  traditional  Indian  patterns,  as  well  as  the  rest  of  the 
country,  can  better  understand,  respect,  and  relate  to  the  Indian 
culture,  tradition,  and  values,  particularly  in  the  light  of  some 
current  and  critical  issues. 

To  this  end,  this  paper  was  offered  to  the  members  of  the  KATXVS 
AMERICAS  CHURCH  OP  WYOMING  FOR  ARAFAHOBS  S  OTHER  TRIBES,  and 
Critical  issues,  DATED;  &*~*.    &    /<*"??-  It  was  unanimously 

adopted  as  the  position  piper  of  the  continuing  organization,  which 
is  known  as  NATIVE  AMERICAN  CHURCH  OF  WYOMING  FOR  ARAPABOES  &  OTHER 
TRIBES.  Some  actions  by  the  Indians  are  necessary  to  preserve 
Indiaa  tradition,  culture,  worship,  and  the  Indian  way  of  life. 

In  spite  of  common  backgrounds  and  similarities,  there  are  a  great 
variety  of  methods  of  tradition,  culture,  and  worship  among 
Indians.  There  is  no  common  value  system  which  can  be  applied  in 
total  across  Indian  peoples  or  even  among  tribes.  This  variety  and 


60 


difference  does  not  lessen  the  authenticity  nor  the  peace  of  Bind 
it  brings  to  tribal  and  individual  practitioners  of  Indian  worship. 
This  worship  is  Mentioned  in  that  it  is  an  integral  part  of  the 
Indian  way  of  life  and  culture  which  cannot  be  separated  from  the 
whole.  This  oneness  of  Indian  life  seems  to  be  the  basic 
difference  between  the  Indian  and  non-Indians  of  the  dominant 
society.  It  may  be  noted  that  under  the  precept  of  separating 
"church  from  state",  the  churches,  thence  the  religious  practices 
of  the  United  States  people,  on joy  immunity  from  regulations, 
enforcement  agencies,  and  eniov  equal  protection  —  under  the  laws 
of  the  United  States.  Recent  events  indicate  that  Indians  do  not 
en-toy  this  equal  protection  in  their  ceremonial  and  traditional 
worship.  If  this  is  the  case....  it  follows  that  the  entire 
culture  of  the  American  Indian  is  vulnerable  to  regulation, 
suppression,  and  liquidation  by  imposing  over-control  measures  upon 
Indians  ....  which  is  inimical  to  the  principle  of  Indian  self- 
determination  and  the  separation  of  church  and  state. 


Recent  events  clearly  identify  a  critical  need  for  Indians  to  act 
now  to  protect,  preserve,  and  revitalise  Indian  culture,  including 
life-styles,  worship,  and  equal  protection  under  United  States  law 
and  the  Government.  The  understanding  support,  protection,  and 
advocacy  of  the  United  States  and  all  of  the  subdivisions  of  the 
Government  are  needed. 

In  Lvng  v.  Horthwest  Indian  Cemetery  Protective  Association,  and  in 
Employment  Division,  Dept.  of  Human  Resources  v.  Smith,  The  Supreme 
Court  rules  that  the  First  Amendment  does  not  protect  traditional 
Rative  American  sacred  sites  from  destruction  (Lyng),  or  the  peyote 
religion  of  the  Rative  American  Church  (Smith) . 

At  the  same  time,  Indians  must  now  share  their  sensitivities, 
concerns,  and  aspirations  with  one  another,  in  order  that  common 
positions,  may  be  established;  then  to  share  some  of  these  concerns 
with  the  rest  of  the  country. 

Row  for  some  comments  on  current  issues: 

American  Indians  have  used  sites,  and  all  forms  of  natural  and 
living  things  in  their  culture  and  worship  since  time  immemorial. 
Indians  must  now  exert  every  effort  to  protect  their  God-oiven 
right  to  use  all  living  forms  in  their  culture,  including  their 
traditional  acts  of  worship,  which  practices  sometimes  predate  the 
United  States  of  America,  its  laws,  and  even  the  so-called 
discovery  of  this  continent  BY  KBSTERH  EUROPEANS! 

Peyote  -  Its  Use  and  Acquisition.  The  use  of  peyote  (Lopbophora 
Williamsii)  a  sacrament,  is  widespread  among  American  Indians, 
although  it  is  not  universal  in  any  sense.  It  is  mentioned  here 
because  the  users  of  peyote,  which  is  another  critical  issue  today 
facing  the  Indian  way  of  life,  including  tradition,  culture,  and 
native  worship. 


61 


The  Hative  American  Church  is  a  chartered  organisation  to 
facilitate  the  use  of  peyote  as  a  part  of  Indian  ceremonial*.  The 
■stive  American  Church  recognises  and  sanctions  all  "fire-places" 
. . .  which  is  another  way  of  recognising  that  there  is  no  particular 
orthodoxy  within  the  use  of  peyote,  as  there  is  no  common  orthodoxy 
in  native  Indian  worship. 

Becausa  of  its  organisation  ( native  American  Church),  the  use  of 
peyote  has  been  extanded  soma  exceptions  to  laws  which  govern 
peyote  and  its  sale,  and  «m,  particularly  under  Taxas  law.  (The 
plant  is  peculiar  to  some  areas  of  the  Stata  of  Taxas  and  the 
northern  part  of  Mexico.) 

The  peyote  issue  is  critical  for  several  reasons: 

Its  acquisition  is  becoming  more  difficult  end 
enforcement  of  regulations  is  contributing  to  a  rise  in 
prices  and  a  shortage  of  supply. 

Lands  where  the  plant  is  available  ere  rapidly  falling 
into  control  of  parties  who  do  not  share  a  sensitivity 
for  the  Zsdian-way. 

Lands  where  the  plant  grows  are  being  subjugated  to  other 
uses,  which  further  diminishes  the  supply  or  its 
availability  for  sacramental  purposes. 

A  continued  supply  of  the  plant  is  necessary  for  the 
continued  capacity  of  many  Indians  to  continue  their 
native  worship  and  life-styles. 

Present  sanctions  and  exceptions  to  the  law  are  not 
adequate...  there  needs  to  be  more  protection  and  more 
support  from  the  United  States  and  all  levels  of 
Government,  including  the  designation  of  lands  amendable 
for  harvest  of  the  plant  for  sacramental  use. 

The  issues  surrounding  the  peyote  issue  are  symptomatic  of  the 
circumstances  surrounding  native  Indian  culture,  worship,  and  the 
Indian  way  of  life.  The  Government  does  not  similarly  regulate 
culture  of  the  rest  of  the  American  society,  particularly  in  the 
areas  of  worship. 

Government  enforcement  officials  do  not  confiscate  wines 
and  other  unlicensed  property  of  churches  of  all 
denominations,  races,  and  languages,  except  American 
Indians. 

Government  offers  protection  for  the  use  of  churches, 
accessories  and  all  that  is  used  in  the  name  of  the 
church,  to  the  extent  of  rationalising  fund-raising  and 
non-taxable  funds,  property,  and  other  exemptions. 


68-366  -  93  -  3 


62 

Because  of  tbe»c,  regulation  of  any  «eg«ent  ef  this mtg  of  life  is 

rl^a^uBt  t*  »  .nnnlUaaK™  »*  «*•  Indian  way  of  life  Mfl  culturet 


Shis  paper  recognises  that  there  are  nany  alteraatiTes  open  to 
Indians  of  all  tribes,  beliefs,  and  disciplines.  It  does  not 
pretend  to  speak  for  all  Indians  nor  for  any  particular  way  of  life 
among  the  aany  life-styles  of  American  Indians.  It  recognises  that 
there  is  no  particular  orthodoxy  which  can  adequately  govern  all 
forms  of  worship  or  culture.  More  importantly,  it  recognises  that 
there  is  unprecedented  threat  through  recent  events  which  giro  rise 
to  a  critical  issue  in  the  Indian  way  of  life. 

To  the  purpose  of  maintaining,  preserving,  and  perpetuating  the 
Aaerican  Indian  way  of  life,  this  position  paper  is  respectfully 
adopted. 


««  TOTPL  PAGE. 007  »* 


63 


CROW  TRIBAL  COUNCIL 

P.O.  Box  159 
Crow  Agency,  MT  59022 

(406)  638-2601 


November    18,    1991 


Crow  Country 


Senator   Daniel   K.    Inouye,    Chairman 
Senate    Select    Committee   On   Indian   Affairs 
United    States    Senate 
828    Hart    Building 
Washington,    D.C.       20510-6450 

Dear    Senator: 

I    have    reviewed   proposed   bills   affecting   Indian    tribes   distributed 
by   your    office. 

Although  we   all    share    the  concerns    and   the   intentions   of 
the   proposed   bills,    I   have    more   concern    in   the    area    of   Native 
American   religious   freedom,    i.e.    the   use    of   peyote    as    religious 
sacrament   by    Indian   people.      The   Crow   Indian   Peyote    Ceremonies 
of    the    Crow   Nation,    thus,    took  action    to   authorize    our   officers 
to    fully   assist    and    support   your    efforts    on    this   measure, 
as    well   as   authority    to   join  other    organizations,    copy   of 
resolution   attached. 

Since   my   organization    has    adopted    a   resolution   on   this   matter, 
I    will    present    another    resolution   to  the   full    Crow   Tribal 
Council    at    its    next   quarterly   session   on   January    11,    1992. 
I    foresee   no   problem   from   the   Crow   Tribal   Council. 

I    share   the   same   concern   with   you  on   this    very    important 
matter.       Should    you  have  any   questions,    please   do   not   hesitate 
to    contact   me   at   406-638-2601,    ext.    105. 

With   regards,    I    remain 


Sincerely   yours, 

Arlo   Dawes,    President 

Crow    Indian   Peyote    Ceremonies 

Crow   Nation 


64 


RESOLUTION 


A   Resolution    Of    The  Crow  Indian  Peyote    Ceremonies   To  Authorize 
The    Officers   To   Join   The    Senate  Select    Committee    On    Indian 
Affairs,    As  Well   As   Other   Organizations    To   Urge  The  United 
States    Congress  To   Pass  Legislation  To  Protect   Native   American 
Religious   Freedom/ 

Whereas,    it   has  become  necessary    for   the  Crow  Indian  Peyote 
Ceremonies   and   its    Officers    to   join  efforts  with   the    Senate 
Select   Committee  on  Indian  Affairs    and  other   organizations 
in   an  effort   to  urge   the   United   States   Congress  to  pass 
legislation   protecting   Native   American   religious   freedom, 

Therefore,    Be    It   Resolved,    by  the  Officers    and   the   authorities 
of   the    Crow   Indian  Peyote   Ceremonies    that    the   present    Officers 
are   hereby   authorized   to  join   with   any    and   all   organizations 
on  behalf   of   the    Crow    Indian   Peyote  Ceremonies    in  the   efforts 
of    urging    the   United    States   Congress   to  pass    legislation 
in  regard    to    the  use  of   peyote, 

Be   It    Further   Resolved,    that    the   Officers   are   also   authorized 
to    solicit   or    obtain  any    fundings    from  any  source    and   expend 
such   monies    for    this   purpose. 

Passed   and   Adopted   on    this   18th  day  of   November,    1991. 


Arlo   Dawes  ,~  res  ident 

Crow   Indian   Peyote   Ceremonies 


'j^Z-JsuS 


£ 


irew  'Russell,  >»tice-Presn 
Crow    Indian  Peyote    Ceremonies 


65 


RESOLUTION 


SAC  AND  FOX  CHAPTER 
NATIVE  AMERICAN  CHURCH 


A  RESOLUTION  ty.??Ze"J^O  S'.TPQP.T:  OP  THE  PROPOSED  AMENDMENTS  TO  THE 
AMERICAN  INDIA:,'  T.T.l  T  c.  I C"  S  FREEDOM  ACT  OF  1978;  REQUESTING 
FAVORABLE  CONSIDE?:.\TiT':-:  BY  TITS  U.S.  CONGRESS  POR  THE  ENACTMENT  OF 

THE  proposed  m-itvs::r ■.:■:?■ . 


WHEREAS. 

the  Sac  ?. 

-  j 

official! 

■       £ 

in  Ofclsh: 

"   ~ 

WHEREAS, 

the  Arrcr: 

-=.-, 

provides 

th- 

the  First 

Rs 

WHEREAS . 

the  Ameri 
fcr  *,;-.-: 

e  f  t  r  -  r : 
Chu:  ::.  :■  ;  . 

and  r  :-:■.-, 

r  a  «■, 

WHEREAS. 

the  s  -:  r 

i  ?  r -  :  :  .; 

trad:-..-. 

me:r.b?rr  : 

; 

fcr  t :-.  • 

'• 

Axeri  c:.r. 

v  . 

f/6  r  t :-.  • 

C  *'  _  c  "  -  '  - 

WHEREAS, 

t  h  s  :•  ~  -  - 

r  r  c  r  :  r  :  '. 
F  r  £  cdt: 

9  r  e  :  '.  ;  r 
thr  :;:..:  . 

NOW  THEREFORE  E.  I  . 

American 

amendment 

S  I  ;  :';•.-■■  ' 

x  Charter,  Native  American  Church,  was 
-t-. -rid  and  chartered   October  11.  1918 


-?-?n  Religious  and  Freedom  Act  of  1978 
zn    and  insures  the  rights  under 


.  i  .•  - , 


FURTHER   BE    L? 
American    Chu: 
considerat  lcr. 
proposed   arrsr.-i 
Of    1978. 


to   free   exercise  of   religion,    and 

'.*    religious    and    Freedom   Act    provides 
;.r t-tection    on    the    use    and    possession 

- ..-.  i   members    of    the    Native   American 
.  :•    possess   peyote   and   eagle   feathers 
rt    destruction   of   sacred   sites,    and 

":tion's    government    recognizes. 

:  -  .    and    guarantees    the    rights    and 

:is    of    its    members    to    worship    as 

/?   American   Church,    and   has    adopted 

:..r:   r.r.d   laws  providing   for   exemptions 

-?rs    and    members    of    the    Native 

. :hin    their    respective    jurisdiction 

-.'.rion    of    peyote,    per    Resolution 


rr     Daniel     Inouye    will     introduce 

to     the    American    Indian    Religious 

ich    will    strenghten    and    provide 

for    Native    American    Churches 

.   states. 


.'.'T  the  Sac  and  Fox  Chapter  Native 
•srejs  full  support  of  the  proposed 
:ir.   P.eligious  Freedom  Act  1978. 

:  3=c  and  Fox  Chapter  of  the  Native 

respectfully   request  favorable 

rr.cress  for  the  enactment  of  the 

::'can  Indian  Religious  Freedom  Act 

i  2-1  CATION 


We,  the  under  a; 
Chapter  of  Lh; 

Resolution  •..•-? 
Ji£* day  of  .K  • 


Mary  ButlV: 


r.r.d  Secretary  of  the  Sac  and  Fox 
Church  do  hereby  attest  that  this 
-  -..itnessed  by  our  signature  this 

Larry  Butler,  Chairman 


66 


Native  American  Church  December  26,  1991 

State  of  Idaho 

Fort  Hall,  Idaho  83203 

Willard  Ballard,  President 

The  Honorable  Daniel  K.  Inouye,  Chairman 
Senate  Select  Committee  on  Indian  Affairs 
SH-838  Hart  Senate  Office  Building 
Washington,  D.C.  20510-6540 

RE:  Amendments  to  the  American  Indian  Religious 

Freedom  Act 


Dear  Chairman  Inouye: 

The  State  of  Idaho,  Native  American  Church,  Board 
of  Directors  have  received  a  copy  of  the  draft  legislation 
you  sent  to  Indian  Tribes.   We  strongly  support  and  urge 
your  endeavors  to  sponsor  legislation  protecting  Indian 
religion,  culture  and  tradition. 

Freedom  of  religion,  under  the  First  Amendment  of 
the  Unitted  States  Consitution,  a  citizen's  right,  sanctions 
the  Native  American  to  practice  our  spiritual  belief 
without  fear  and  bondage  of  laws  imposed  by  the  Federal, 
State  and  Tribal  Governments.  Al thought,  we  fully  abide 
by  ALL  laws,  our  way  of  survival  as  Native  Americans 
is  still  in  question. 

American  Indian  Religious  Freedom  Act  of  1978, 
42  U.S.C.  Sec.  996  and  the  American  Indian  Civil  Rights 
Act  of  1978  are  protections  of  our  inherent  rights  for 
Native  Americans.   Still,  with  the  two  (2)  Acts,  we 
are  challenged  through  the  U.S.  Supreme  Court,  constantly 
fighting  for  freedom  of  religion.  Wording  has  to  be 
changed  and  made  stronger  for  our  protection  to  be  more 
benificial  for  Native  Americans. 

With  this  letter,  our  support  is  with  you  during 
your  legislative  hearings  on  the  draft  Indian  Religious 
Freedom  Act  and  may  Congress  enact  legislation  for  the 
beat  interest  of  our  people.   May  our  plea  be  heard  and 
the  protection  and  preservation  of  our  Indian  religion, 
culture  and  tradition  be  granted  for  ALL  Native  Americans. 
Thank  you,  NAC  Board  of  Directors  1991-92. 

c 


Willard  Ballard,  President 


Page  two 
December  26,  1991 


67 


Alvin  Buckskin,  Vice-president 


Allen  Tindore,  Treasurer 


Adeline  M.  Tonzo,  Secretary 


4C 


^ . 


t.  jL 


-^ 


Fred'Auck,  Board  of  Director 


Carlino  Broncho,  Board  of  Director 


Leonard  Mosho,  Boaro  of  Director 


cc:  file 


68 


AMERICAN  INDIAN  RELIGIOUS  FREEDOM  COALITION 

FOR  THE  AMENDMENTS  TO  THE 

AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT 


yes.  Our  organization  supports  the  proposed  amendments  to 
AIRFA,  and  we  would  like  to  be  included  in  the  following 
ways: 

(2        Add  our  name  to  the  list  of  AIRFA  Coalition  members. 

|~~1  Active  involvement  in  the  legislative  advocacy  process  in 
Senate  and  House. 

f~~|  Endorsement  of  AIRFA  amendments,  but  cannot  formally  join 
the  AIRFA  Coalition  at  this  time. 

NAME  OF  ORGANIZATION:       Native  American  Church  of  Oklahoma 

1006  East  Lee  


ADDRESS: 


Sapulpa,  Oklahoma  7^066 


TELEPHONE:  (91B)  224  -  6674 


FAX; 


CONTACT   PERSON:  Melvin  George,  Chairman 

AUTHORIZATION   SIGNATURE:    _ 


TITLE:  State  Cnairman 


12-24-92 


DATE: 

ORGANIZATION  NAME  AS  YOU  WISH  IT  TO  APPEAR  ON  COALITION  MEMBER  LIST 

(IF  APPLICABLE)  :  Native  African  Church  Of  Oklahoma 

Please  complete  this  form  and  send  it  to: 

James  Botsford,  Indian  Law  Office  Director 

Wisconsin  Judicare,  Inc. 

408  Third  Street,  Suite  #408 

P.O.  Box  6100 

Wausau,  WI  54402-6100 

Tel:   (715)  842-1681   FAX:   (715)  848-1885 


69 


Rev.  02/19/93 


AMERICAN  INDIAN 

RELIGIOUS  FREEDOM  COALITION 

FOR  THE  AMENDMENTS 

TO  THE  AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT 


MEMBERS 


American  Baptist  Churches,  U.SA. 
American  Civil  Liberties  Union 
American  Ethical  Union, 

Washington  Ethical  Action  Office 
American  Indian  Anti-Defamation  Council 
American  Indian  Ritual  Object  Repatriation 
Foundation 

American  Jewish  Committee 
Americans  for  Indian  Opportunity 
Apache  Survival  Coalition 
Association  on  American  Indian  Affairs 
Confederated  Salish  and  Kootenai  Tribes, 

Flathead  Reservation,  Montana 
Congressional  Human  Rights  Foundation 
Conservation  International 
Council  for  American  Indian  Ministry, 

United  Church  of  Christ 
Crow  Indian  Peyote  Ceremonies  (CIPC) 
Cultural  Conservancy 
Cultural  Survival 

Episcopal  Council  of  Indian  Ministries 
Friends  Committee  on  National  Legislation 
Friends  of  the  Earth 
Greenpeace 
Heart  of  the  Earth  Survival  School 

Prison  Program 
Hollywood  Policy  Center  Foundation 
Honor  Our  Neighbors  Origins  &  Rights  (HONOR) 
Keepers  of  the  Treasures 
K1FARU  Productions  -  San  Francisco 
Learning  Circle,  The 
Lutheran  Office  for  Governmental  Affairs, 

Evangelical  Lutheran  Church  in  America 
Maryknoll  Fathers  and  Brothers, 

Justice  and  Peace  Office 
Medicine  Wheel  Coalition 
Mennonite  Central  Committee,  U.S. 
Morning  Star  Foundation 
National  Audubon  Society 
National  Conference  of  Christians  and  Jews, 

Inc.  ~  Minnesota-Dakotas  Region 
National  Congress  of  American  Indians 
National  Indian  Education  Association 


National  Parks  and  Conservation  Association 
Native  American  Church,  Half-Moon  Fireplace, 

State  of  Wisconsin,  Inc. 
Native  American  Church  of  Navajoland 
Native  American  Church  of  North  America 
Native  American  Church  of  Oklahoma 
Native  American  Church  of  Wyoming 
Native  American  Church  of  the  State  of 

South  Dakota 
Native  American  Prisoners'  Rehabilitation 

Research  Project 
Native  American  Religious  Freedom  Project 

of  the  Native  American  Church 
Native  American  Rights  Fund 
Native  Lands  Institute 
Native  Spiritual  Cultural  Councils,  Inc. 
Natural  Resources  Defense  Council 
Navajo  Corrections  Project 
Navajo  Nation  (Support  in  principle) 
Presbyterian  Church  U.SA. 
Sealaska  Corporation 
Seventh  Generation  Fund 
Sierra  Club 

Student  Environmental  Action  Coalition 
Unitarian  Universalis!  Association  of 

Congregations,  Washington  Office 
United  Church  of  Christ,  Office  for  Church 

in  Society 
United  Methodist  Church,  General  Board  of 

Church  and  Society 
Wilderness  Society 
Winds  of  Life 

Wisconsin  Tribal  Judges  Association 
Women's  International  League  for  Peace 

and  Freedom 
Writers  Guild  of  America,  West 


70 


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71 


<^  VS.  Department  of  Justice 

Drug  Enforcement  Administration 


■9 


Waihmpon.  D.C.  20337 

AUG  0  8  1991 


Mr.  Douglas  J.  Long 

President 

Native  American  Church  of  North  America 

Route  1,  Box  67 

Osseo,  Wisconsin  54758 

Dear  Mr.  Long: 

This  is  in  response  to  your  letter  of  July  13,  1991,  with 
which  you  enclosed  a  copy  of  your  proposed  amendment  to  the 
American  Indian  Religious  Freedom  Act.   The  proposed  amendment: 
would  create  a  statutory  exemption  for  the  sacramental  use  of 
peyote  in  ceremonies  of  the  Native  American  Church.   As  such, 
it  would  replace  the  Drug  Enforcement  Administration ' s  (DEA) 
regulatory  exemption  found  at  21  c.F.R.  1307.31. 

As  you  know,  the  Bureau  of  Narcotics  and  Dangerous  Drugs 
DEA's  predecessor  agency,  issued  the  regulation  in  response  to 
Congress'  documented  direction  that  it  do  so.   While  we  were 
sleased  that  in  Pevote  Way  church  of  God  v.  Thenburoh. 
922  F.2d  1210  (1991),  the  regulation  was  upheld  by  the  United 
States  Court  of  Appeals  for  the  Fifth  Circuit,  DEA  has  long 
preferred  a  statutory  exemption  over  an  administrative  one. 
Accordingly,  DEA  personnel  who  participated  in  your  recent 
meeting  with  representatives  of  several  Department  of  Justice 
Offices  and  Divisions  supported  your  proposed  statutory 
amendment.   Within  the  past  few  weeks,  the  Department  of  Justice 
requested  that  DEA  formally  state  its  views  with  respect  to  the 
proposed  amendment.   As  our  representatives  did  during  the 
aforementioned  meeting,  DEA  strongly  supported  the  legislation 
while  suggesting  some  minor  changes  which  would  make  clear  that 
the  exemption  applied  only  to  Native  Americans  and  would 
recognize  DEA's  legitimate  role  in  regulating  those  persons  who 
import  or  harvest  peyote  and  distribute  the  material  to  the 
designated  representatives  of  the  Native  American  Church.   We 
anticipate  that  Congress  will  also  be  interested  in  our  views 
as  your  amendment  moves  through  the  legislative  process. 


72 


Mr.  Douglas  J.  Long  page  Two 

I  have  been  advised  that  since  the  enaetaant  of  the 
Controlled  Substance*  Act,  DEA  and  the  Native  Aaerican  Church 
have  maintained  a  close  working  relationship  with  respect  to  the 
handling  of  peyota.   DEA's  registration  and  regulation  of  peyote 
distributors  and  the  Church's  self-regulation  of  the  handling  of 
the  substance  have  combined  to  insure  the  availability  of  peyote 
witbout  diversion  or  abuse.   I  look  forward  to  a  continuation  of 
this  cooperative  environaent  and  wish  you  well  in  your  term  as 
president  of  the  Native  Aaerican  Church  of  North  America. 


Very  truly  yours, 


Robert  C.  Bonner 

Administrator  of  Drug  Enforcement 


73 

Mr.  Richardson.  Thank  you,  President  Long. 
The  chair  recognizes  President  Robert  Whitehorse. 

STATEMENT  OF  ROBERT  WHITEHORSE 

Mr.  Whitehorse.  Thank  you,  Mr.  Chairman,  members  of  the 
subcommittee.  I  appreciate  the  time  this  morning. 

My  name  is  Robert  (Billy)  Whitehorse.  I  reside  in  Cortez,  Colo- 
rado. I  am  the  president  of  the  Native  American  Church  of 
Navajoland,  representing  the  Navajo  people  from  Arizona,  New 
Mexico,  Utah,  and  Colorado.  I  appreciate,  Mr.  Chairman — Mr. 
Richardson — that  you  took  this  upon  yourself  to  introduce  the  bill 
on  the  House  side,  and  I  would  like  to  say  a  word  for  the  Navajo 
Tribe.  We  would  like  to  thank  you  and  this  subcommittee  for  tak- 
ing this  giant  step  for  the  Navajo  people,  not  only  the  Navajo  Tribe 
but  also  the  Navajo  Indians  across  the  Nation  here. 

Mr.  Chairman,  my  position  as  the  president  of  the  Native  Amer- 
ican Church  of  Navajoland  is  that  we  have  full  support  from  our 
members  of  the  tribe,  meaning  that  we  have  registered  members 
of  30,000  currently  of  the  Navajo  people,  and  we  are  whole- 
heartedly supported  by  the  Navajo  Tribal  Council  and  our  presi- 
dent, Mr.  Peterson  Zah,  his  administration,  and  the  Council  and 
the  present  administration  have  supported  wholeheartedly  the  pro- 
duction of  the  amendment  of  the  bill  to  the  State  legislature.  We 
currently  have  a  bill  with  this  position,  and  the  New  Mexico  State 
legislature  has  wholeheartedly  supported  us,  and  so  has  the  State 
of  Arizona.  By  going  this  route,  we  are  now  united  by  all  the  In- 
dian tribes  across  the  United  States  and  then  beyond — Alaska,  et 
cetera. 

I  would  like  to  say  here  that  being  members  of  the  Native  Amer- 
ican Church,  I  think  this  is  the  last  resort  that  the  Indian  tribes 
are  holding  on  to  as  a  holy  sacrament.  In  history,  we  have  found 
out  that  this  medicine,  the  holy  sacrament,  will  come  back  to  us, 
as  the  Navajo  Tribe  says.  I  think  we  are  in  the  stage  where  we 
need  to  hold  on  to  our  sacrament  for  us  to  have  freedom  and  rights 
to  practice  religion. 

Also,  on  this  route,  we  found  out  that  there  are  hard  obstacles 
that  we  are  currently  facing,  meaning  that  our  youngsters,  when 
they  enroll  in  education,  our  church  members,  members  of  the  Na- 
tive American  Church,  are  not  fully  recognized.  This  is  true  with 
the  American  soldiers  and  veterans.  Our  tribes  across  the  United 
States  serve,  and  we  come  across  hard  obstacles  indicating  that 
recognizing  the  peyote  is  not  really  there. 

Also,  in  any  type  of  religious  ceremony  that  the  Indian  people  are 
used  to,  I  think  we  are  still  feeling  that  the  United  States  Govern- 
ment is  not  fully  protecting  us  to  the  extent  where  we  will  have 
freedom  of  religion.  I  think  what  we  are  saying  here  is  that  we  are 
only  repressing  the  freedom  of  religion  that  is  recognized  in  the 
United  States  where  we  have  a  provision  for  the  Native  American 
to  have  the  same  rights. 

I  think  not  only  going  this  route  and  recognizing  the  medicine, 
the  peyote,  the  holy  sacrament,  but  I  think  this  bill  entails  oth- 
ers— Titles  1,  2,  3,  4,  and  5 — which  we  wholeheartedly  support,  and 
in  one  way  or  another  they  are  related. 


74 

So,  Mr.  Chairman,  just  as  I  indicated,  the  Navajo  Tribe  does 
have  stature  with  our  own  tribal  government,  and  we  are  also  es- 
tablished with  Arizona  and  New  Mexico,  and  we  do  have  a  charter 
of  places  in  each  State,  and  Texas  recognizes  our  way  of  religion; 
the  bill  has  been  in  place  for  us. 

So  in  the  interests  of  your  time,  Mr.  Chairman,  I  would  like  to 
have  my  written  statement  in  the  record.  We  have  several  attach- 
ments included  for  your  information  that  show  the  long  history  we 
have,  meaning  that  we  have  opposition  when  the  Supreme  Court 
came  down  with  the  Smith  decision,  and  we  want  our  position  to 
be  answered.  Through  our  prayers,  I  think  the  answer  was  that 
this  bill  needs  to  be  amended. 

So,  Mr.  Chairman,  in  conclusion,  I  would  like  to  thank  you  and 
your  subcommittee  for  this  opportunity  to  speak.  The  Native  Amer- 
ican Church  of  Navajoland  supports  the  Congressional  legislation 
to  amend  the  American  Indian  Religious  Freedom  Act  that  would 
solve  these  problems  by  creating  a  uniform  national  law  that  would 
remove  these  obstacles  and  legal  cloud  and  allow  our  religion  to 
continue,  perhaps  finally  free  of  the  long  history  of  oppression  and 
persecution  and  misunderstanding  that  has  troubled  us  for  so  long. 

On  behalf  of  the  Native  American  Church  of  Navajoland,  I  urge 
you  and  your  colleagues  to  do  everything  you  can  to  cut  through 
this  wall  of  misunderstanding,  to  introduce  and  forward  legislation 
that  will  protect  the  traditional  use  of  peyote.  I  plea  before  this 
subcommittee  that  Congress  should  restore  our  rights  to  freely 
practice  our  Native  traditions  and  religion. 

Thank  you,  Mr.  Chairman. 

[Prepared  statement  of  Mr.  Whitehorse  follows:] 


75 


NATIVE  AMERICAN  CHURCH  OF  NAVAJDLAND,  INC. 

P.O.  BOX  1570   •   CHINLE,  ARIZONA  86503 


PRESIDENT 

ROBERT  B.  WHrTEMORSE 

VICE  PRESIDENT 

JESSE  THOMPSON 

SECRETARY 

HELENA  CHATO 

TREASURER 

JOHNNY  C.  BAR  BONE 

SERVICE  OFFICER 

VICTOR  CLYDE 


STATEMENT  BY 

ROBERT  BILLY  WHITEHORSE,  PRESIDENT 

NATIVE  AMERICAN  CHURCH  OP  NAVAJOLAND,  INC. 

PRESENTED  TO 

SUBCOMMITTEE  ON  NATIVE  AMERICAN  AFFAIRS 

■ 

OF  THE  HOUSE  NATURAL  RESOURCES  COMMITTEE 
BILL  RICHARDSON,  CHAIRMAN 


CONCERNING  THE 

AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT 

THE  TRADITIONAL  USE  OF  PEYOTE 

March  16,  1993 


76 


Introduction 

Congressman  Richardson,  members  of  the  Subcommittee,  thank  you  for  inviting  me  to 
present  views  about  the  traditional  use  of  sacrament  peyote.  My  name  is  Robert  Billy 
Whitehorse,  President  of  the  Native  American  Church  of  Navajoland  (NACNL),  Inc.  I  reside 
on  the  Navajo  Reservation  in  the  great  Four  Corners  region  of  the  United  States.  My  home 
address  is  Box  503,  Cortez,  Colorado. 

I  come  before  you  with  mixed  feelings  about  the  U.S.  Government's  protection  of  our 
traditional  religious  belief  and  practices.  Prior  to  enactment  of  American  Indian  Religious 
Freedom  Act  (AIRFA)  of  1978,  my  people  have  long  suffered  persecution  in  many  forms  from 
those  who  do  not  understand  the  beliefs,  practices  and  use  of  sacrament  peyote.  NACNL 
members  have  believed  that  AIRFA  gave  us  protection  in  the  use  of  sacrament  peyote  and  to 
freely  practice  our  religion.  This  trust  in  the  federal  government's  fiduciary  duty  to  protect  and 
preserve  our  traditional  use  of  peyote  is  greatly  hindered  by  the  Lyng  and  particularly  the  Smith 
court  decisions. 

Our  Navajo  people  travel  all  over  this  country  and  attend  Native  American  Church  (NAC) 
prayer  services  in  many  states.  Some  of  those  states  have  no  protective  laws  for  our  sacrament. 
This  makes  our  people  fearful  of  persecution,  and  places  a  discriminatory  burden  on  their 
religious  practices  —  even  though  those  practices  harm  no  one  and  are  rooted  deep  in  history. 

It  was  Navajos  working  on  railroad  lines  in  California  in  the  early  1960's  who  were 
arrested  for  praying  in  a  hogan  near  Needles,  California.  Those  arrests  led  to  the  well  known 
People  v.  Woody  case  from  the  California  Supreme  Court  in  1963,  which  upheld  their  right  to 
worship  based  on  the  constitutional  principle  of  Freedom  of  Religion.  Now,  since  the  Smith 
case,  that  constitutional  underpinning  has  been  stripped  away.    Once  again  Indian  people  may 


77 


be  subject  to  a  felony  arrest  if  they  gather  in  our  traditional  prayer  services  in  that  state  and  many 
other  states  where  our  religious  practice  is  considered  a  crime. 

An  example  of  continued  persecution  is  best  described  by  the  recent  threat  of  two  court 
martial  of  Sergeant  Shawn  Arnold,  a  Navajo  member  of  the  U.S.  Marine  Corps,  cited  with 
possession  of  peyote  in  the  State  of  California  (see  Appendix  A).   The  court  martial  has  been 
dismissed  with  support  from  the  Navajo  Nation  Council,  NACNL,  State  of  Arizona,  State  of 
California  and  the  Comprehensive  Drug  Abuse  Prevention  and  Control  Act  of  1970.  Sergeant 
Arnold  is  an  example  of  fine  young  individuals  that  hold  prestigious  positions  in  today's  society 
that  are  consistently  discriminated  against  for  their  use  of  peyote.  People  like  Sergeant  Arnold 
and  Troy  Nakai,  another  Navajo  member  of  the  U.S.  Army  that  participated  in  Operation  Desert 
Storm,  who  testified  before  the  Senate  Committee  on  Indian  Affairs  hearing  in  Portland,  Oregon 
last  year,  defended  this  country  and  the  Constitution  in  order  that  the  citizens  of  this  country 
including  Native  Americans  have  the  freedom  to  express  their  basic  rights  and  the  right  to 
practice  their  traditional  religious  beliefs  without  being  threatened  or  persecuted  (Appendix  B) 
There  are  also  the  risks  and  indignities  for  our  people  in  the  neighboring  state  of  Arizona 
because  of  the  way  their  law  is  structured.    Under  the  Arizona  law,  our  only  protection  is 
proving  an  "Affirmative  Defense"  to  a  criminal  charge  in  use  of  peyote.  We  are  forced  to  prove 
that  the  use  of  peyote  is:  in  connection  with  the  bonafide  practices  of  a  religious  belief;  as  an 
integral  part  of  a  religious  exercise;  and  in  a  manner  not  dangerous  to  public  health,  safety  or 
morals.    Such  laws  places  an  enormous  and  unfair  burden  upon  members  of  NAC.    Since  the 
Smith  decision,  the  likelihood  of  arrests  and  harassment  are  dramatically  increased  in  states  with 
that  type  of  law.  This  is  not  only  undignified,  but  can  be  very  expensive  and  hard  to  prove  in 
court. 


78 


In  this  mobile  society  our  people  travel  and  work  in  the  four  corners  of  this  land.  We 
are  a  spiritual  people.  We  cannot  be  asked  to  leave  our  religion  at  home.  Nor  can  we  be  asked 
to  restrict  our  travel  or  our  employment  options  based  on  a  patchwork  of  dangerous  state  laws. 
With  these  kinds  of  laws,  it  all  points  clearly  to  the  need  for  a  uniform  federal  law  that  would 
allow  protection  for  the  possession,  transportation,  harvest  and  use  of  the  peyote. 
Theological  Role  in  Traditional  Use  of  Pevote 

While  most  members  of  NAC  have  similar  beliefs  in  the  religious  use  of  peyote,  I  will 
focus  on  the  Navajo  beliefs  and  practices.  The  sacramental  use  of  peyote  for  bonafide  religious 
purposes  has  been  in  existence  for  many  generations.  Navajos  believe  that  this  devine  herb  is 
a  gift  of  the  Creator,  as  old  as  the  emergence  of  the  Dine'  (Navajo)  into  this  world.  This  is  best 

4 

exemplified  in  my  interview  with  Navajo  Medicine  Man  Harvey  Johnson,  stated  in  my  letter  to 
Chief  Justice  of  the  United  States  (Appendix  C).  The  peyote  is  used  as  a  sacrament  and  medicine 
to  maintain  one's  balance  with  the  universe  and  natural  forces.  This  use  of  sacrament  peyote 
embraces  the  principles  of  the  universe  and  its  elements  (earth,  water,  air  and  light)  as  a 
continual  process  in  one's  life  and  communication  with  the  Creator.  This  use  is  one  of  prayer, 
quiet  contemplation,  discipline,  and  seeking  guidance  in  a  never-ending  search  for  righteousness 
to  remain  in  a  constant  and  consistent  relationship  with  the  Creator.  This  belief  and  practice  is 
our  way  of  life  that  we  want  preserved  and  protected.  I  have  appended  the  statement  of  Wilson 
Aronilth,  Jr.  which  details  the  traditional  use  of  peyote  in  his  testimony  before  the  Senate 
Committee  on  Indian  Affairs  on  February  8,  1993  (see  Appendix  D). 

Native  American  Church  of  Navajoland 
The  Native  American  Church  of  Navajoland  (NACNL),  Inc.  is  chartered  through  the 
states  of  Arizona,  New  Mexico  and  Utah.   NACNL  has  its  bylaws  and  is  governed  by  a  Board 


79 


of  Directors  and  elected  officers  comprised  of  a  President,  Vice-President,  Secretary,  Treasurer, 
an  Administrative  Service  Officer  and  Liaison  Officer.  The  executive  officers  are  elected  by  the 
Board  of  Directors  whom  are  elected  from  the  90  local  chapters  across  the  Navajo  Reservation. 
The  local  chapters  are  responsible  in  the  safekeeping  of  the  use  and  possession  of  the  sacrament 
herb.  NACNL  promotes  and  has  held  good  working  relationships  with  other  Native  American 
Church  organizations  across  the  nation.  NACNL  represents  the  interests  of  our  people  who  pray 
to  the  creator  using  this  divine  peyote  in  a  way  that  has  existed  for  thousands  of  years. 

My  written  testimony  submitted  at  the  Senate  Committee  on  Indian  Affairs  field  hearing 
in  Portland,  Oregon,  nearly  one  year  ago  indicated  25,000  Navajos  have  membership  cards  for 
our  organization.    Most  other  religions  do  not  have  membership  cards.    The  vast  majority  of 

« 

Navajo  people  who  are  affiliated  with  the  Native  American  Church  do  not  have  any  official 
membership  document. 

Because  of  the  cultural  ways  of  our  people,  who  are  quite  different  from  the  western 
society,  it  would  be  unreasonable  to  require  our  members  to  be  registered  as  such  and  carry 
cards.  Therefore  AIRFA  amendments  should  not  require  a  comprehensive  list  of  all  members. 
However,  amendments  should  allow  for  the  State  of  Texas  to  continue  to  require  proof  of 
membership  in  an  Indian  tribe  and  in  the  NAC,  and  to  require  an  Authorization  Permit  harvest 
and  transport  sacrament  peyote  in  Texas.  This  is  also  good  because  in  addition  to  protecting  our 
right  to  worship,  we  also  want  to  protect  the  peyote  itself  which  the  Texas  regulations  does. 

Peyote  -  Not  a  Medical  Problem 

In  the  hundreds  of  years  of  known  American  Indian  religious  use  of  peyote,  there  is  no 
documented  evidence  of  any  problems  associate  with  it.  Dr.  Emery  A.  Johnson,  a  physician, 
issued  a  statement  recently  (Attachment  E),  that  he  had  not  found  any  evidence  in  abuse  of 


80 

peyote  while  working  with  Indian  health  for  38  years.  Dr.  Robert  Bergman,  also  experienced 
with  Indian  health  programs,  found  similar  conclusions.  Dr.  Everette  Rhodes  in  his  statement 
(Attachment  F)  has  supported  the  use  of  peyote  in  the  healing  practices  in  context  of  religious 
rituals. 

Support  for  Religious  Use  of  Pevote 
The  Navajo  Nation  has  supported  strengthening  of  AIRFA.  The  Navajo  Nation  Council, 
on  October  24,  1991,  passed  resolution  CO-73-91  (Appendix  G)  "to  protect  and  preserve  the 
inherent  right  and  freedom  of  religion  of  all  members  of  the  Navajo  Nation."  On  February  1, 
1993,  the  Intergovernmental  Relations  Committee  of  the  Navajo  Nation  Council  passed 
Resolution  IGRF-28-93  (Appendix  H),  further  supporting  the  strengthening  of  AIRFA  when  it 

# 

approved  the  Navajo  Nation's  statement.  President  Peterson  Zah  delivered  the  Navajo  Nation's 
statement  before  the  Senate  Committee  on  Indian  Affairs  on  February  9,  1993  in  Albuquerque, 
New  Mexico  (see  Appendix  I).  The  Intergovernmental  Relations  Committee  stated  that 
"[RJeligious  issues  affecting  the  Navajo  Nation  include  protection  of  the  sovereignty  of  the 
Navajo  Nation  over  its  own  land  and  people,  which  issue  largely  encompasses  the  matter  of 
regulatory  authority;  further,  the  Navajo  Nation  government  is  wholly  committed  to  the 
protection  of  the  rights  of  its  individual  Navajo  members  and  all  Native  Americans  to  live  and 
practice  their  religion  in  accordance  with  individual  religious  convictions."  With  this  Navajo 
policy,  I  am  positive  that  our  views  and  comments  will  assure  amendments  of  the  American 
Indian  Religious  Freedom  Act  of  1978  to  protect  our  traditional  use  of  peyote. 

The  Dine'  (Navajo)  Traditional  Healing  Science  Practitioners  (Medicine  men)  also 
supports  the  traditional  use  of  peyote  when  it  passed  its  resolution  on  November  1,  1991 
(Appendix  J),  stating  "the  cultural  and  spiritual  survival  of  Native  American  people  is  closely  tied 


81 


to  the  continuation,  preservation  and  well-being  of  our  tribal  religious  traditions." 

The  states  have  supported  the  sacramental  use  of  peyote.  The  State  of  Arizona,  in  1991 , 
passed  Senate  Concurrent  Memorial  1001  (Appendix  K)  urging  the  President  of  the  United  States 
to  amend  the  American  Indian  Religious  Freedom  Act  to  protect  the  sacramental  use  of  peyote. 
The  State  of  New  Mexico,  in  1991,  passed  the  Senate  Joint  Memorial  15  (Appendix  L)  that 
supports  amendment  of  the  American  Indian  Religious  Freedom  Act  "so  that  the  exercise  of 
Native  American  ceremonial  and  traditional  rites  are  protected  and  the  use  of  peyote  as  a 
sacramental  right  is  preserved" .  The  state  of  California  has  similar  statutues.  The  State  of  Utah 
has  considered  similar  protection  measures  and  the  State  of  Utah  does  abide  by  the  federal  peyote 
exemption  in  the  Comprehensive  Drug  Abuse  Prevention  and  Control  Act  of  1970. 

The  Drug  Enforcement  Administration  (DEA)  of  the  U.S.  Department  of  Justice  also 
helps  us  protect  the  use  of  peyote.  DEA  has  an  exemption  from  the  Comprehensive  Drug  Abuse 
Prevention  and  Control  Act  of  1970  for  our  religious  use  of  peyote  in  the  Code  of  Federal 
Regulations  (21  C.F.R.  Section  1307.31).  That  application  has  been  in  place  since  1965  when 
peyote  was  first  listed  in  the  Controlled  Substances  Act.  Since  that  time,  and  even  before  then, 
the  Native  American  Church  has  enjoyed  a  good  relationship  with  the  federal  authorities.  In  fact, 
D.E.A.  has  written  a  letter  supporting  of  this  effort  and  to  put  their  regulation  into  a  federal 
statute.  That  letter  was  submitted  for  the  record  of  these  hearings  at  the  Portland  Hearing  on 
March  7,  1992.  President  Zah  in  his  statement  before  the  Senate  Commttee  on  Indian  Affairs 
in  Albuquerque  on  February  9,  1993,  stated  support  for  a  statutory  exemption  over  a  regulatory 
exemption. 

Conclusion 
Thank  you  for  this  opportunity  to  speak.  NACNL  supports  Congressional  legislation  to 


82 


amend  the  American  Indian  Religious  Freedom  Act  that  would  solve  these  problems  by  creating 
a  uniform  national  law  that  would  remove  these  obstacles  and  legal  clouds,  and  allow  our  religion 
to  continue,  perhaps  finally  free  of  the  long  history  of  oppression,  persecution  and 
misunderstanding  that  has  troubled  us  for  so  long.  On  behalf  of  the  Native  American  Church 
of  Navajoland,  Inc.,  I  urge  you  and  your  colleagues  to  do  everything  you  can  to  cut  through  this 
wall  of  misunderstanding  to  introduce  and  forward  legislation  that  will  protect  the  traditional  use 
of  peyote.  I  plea  before  this  Subcommittee  that  Congress  should  restore  our  right  to  freely 
practice  our  native  traditional  religion. 

Respectfully  submitted  this  16th  day  of  March,  1993. 

NATIVE  AMERICAN  CrfURCH  OF  NAVAJOLAND,  INC. 


ROBERT  BILLY  WHITEHORSE,  President 


83 
APPENDIX 


A.  Testimony  of  Sergeant  Shawn  Arnold 

B.  Testimony  of  Troy  Nakai 

C.  Letter  to  Chief  Justice  of  the  United  States 

D.  Testimony  of  Wilson  Aronilth,  Jr. 

E.  Statement  of  Emery  A.  Johnson,  MD,  MPH 

F.  Statement  of  Dr.  Everette  Rhoades 

G.  Resolution  of  the  Navajo  Nation  Council 

H.  Resolution  of  the  Intergovernmental  Relations  Committee 

of  the  Navajo  Nation  Council 

I.  Statement  of  Peterson  Zah,  President  of  the  Navajo  Nation 

J.  Resolution  of  the  Dine'  Traditional  Healing  Science  Practitioners 

K.  State  of  Arizona  Senate  Concurrent  Memorial  1001 

L.  State  of  New  Mexico  Joint  Memorial  15 


84 
APPENDIX  A 


TESTIMONY 

OF 

STAFF  SERGEANT  SHAWN  ARNOLD,  U.S.M.C.  (NAVAJO) 

NATIVE  AMERICAN  CHURCH  MEMBER 

PRESENTED 
TO 
SENATE  SELECT  COMMITTEE 'ON  INDIAN  AFFAIRS- 
SENATOR  DANIEL  K.  INOUYE,  CHAIRMAN 

CONCERNING 

AMERICAN  INDIAN  RELIGIOUS  FREEDOM: 

THE  SACRAMENTAL  USE  OF  PEYOTE 

PRESENTED 

AT  A  HEARING  HELD  IN 

LOS  ANGELES,  CALIFORNIA 

ON 

NOVEMBER  12,1992 


85 


Before  I  begin,  I  would  like  to  acknowledge  my  appreciation  to  you 
Senator  Inouye,  and  fellow  Senators  and  Committee  staff  members  for 
giving  me  this  opportunity  and  honor  to  come  before  your  Committee 
to  express  my  thoughts  and  testimony  concerning  the  Discussion 
Draft  called  "American  Indian  Religious  Freedom  Resolution".  Even 
though  there  are  five  titles  to  the  Bill  the  main  focus  of  my 
testimony  will  center  on  Title  Two  of  the  Bill  which  is 
"Traditional  Use  of  Peyote". 

These  three  American  flags  before  you  Sir,  belong  to  my  immediate 
family.  The  first  flag  belongs  to  my  grandfather  who  serviced  in 
WWII,  the  second  flag  belong  to  my  father  who  served  during  the 
Korean  conflict  and  the  third  flag  belongs  to  my  brother  who 
recently  passed  away  in  July  of  this  year  and  who  served  honorably 
from  1977-81  in  the  United  States  Marine  Corps.  These  flags 
represent  three  generations  of  veterans  who  have  passed  on  into  the 
spirit  world  like  the  countless  other  honorable  veterans  through 
out  this  great  country.  I  just  have  one  younger  brother  left  who 
also  served  honorably  in  the  Corps  from  1983-86  and  distinguished 
himself  in  combat  both  in  Lebanon  and  Grenada.  My  grandfather, 
father  and  brother  were  active  membecs  in  the  Native  American 
Indian  Church  too. 

From  WWl  up  to  the  present  date  Native  American  Veterans  have 
always  distinguished  themselves  honorably  on  the  battlefield  and 
during  peacetime  so  it  goes  to  say  as  veterans  our  feelings  are 
deeply  rooted  in  what  the  United  States  Constitution  stands  for. 
Recent  decisions  in  the  last  several  years  made  in  the  Supreme 
Court  concerning  Protection  of  Sacred  sites  (Lyng  V.  Northwest 
Indian  Cemetery  Ass.  1988)  and  Traditional  use  of  Peyote  (Oregon  V. 
Sixth  1990)  bring  us  here  today.  These  decisions  have  had  a 
devastating  impact  on  a  lot  of  Native  Americans  starting  from  the 
Hawaiian  Islands  to  our  far  Northern  State  Alaska  and  from  the  West 
to  the  East  coast.  The  Supreme  Court  is  not  sympathetic  towards 
Native  American  Rights,  and  these  two  decisions  have  had  the  most 
discriminatory  impact  concernig  our  inherent  right  to  freely 
exercise  or  express  our  traditional  (religious)  beliefs  as  afforded 
to  all  American  Citizens  under  the  First  and  Fourteenth  Amendment 
of  the  United  States  Constitution  of  American. 

In  1982,  after  being  honorably  discharged  following  four  years  of 
faithful  service  to  our  great  country,  I  departed  the  military  and, 
eight  months  later,  I  decided  to  come  back  into  the  service. 
During  that  time,  I  informed  the  Marine  Corps  that  I  was  an  active 
member  of  the  Native  American  Indian  Church  and  that  "peyote"  was 
used  as  a  sacrament  in  our  ceremonies.  Because  of  this,  the  Marine 
Corps  sent  a  request  for  a  waiver  to  Headquarters  Marine  Corps  in 
Washington,  D.C..  The  waiver  came  back  approved,  about  two  to 
three  weeks  after  the  request  was  sent  from  Albuquerque,  New 
Mexico.  Along  with  the  waiver,  the  authorization  for  my 
reenlistment  was  granted  October  1,1982.  In  return,  as  I  did  in 
January  1978,  October  1982,  December  1985  and  June  1991,  I  raised 
my  right  arm  and  took  an  oath  to  defend  and  give  my  life,  if 
necessary,  in  defense  of  our  Constitution  in  order  that,  not  only 


86 


all  Native  American  Indian  people,  but  all  other  nationalities  from 
all  walks  of  life  can  have  the  freedom  to  express  their  basic  human 
rights,  including  the  right  to  practice  their  traditional  religious 
beliefs  without  being  threatened  or  prosecuted. 

From  January  1991,  to  June  1991,  my  religious  beliefs  (faith)  were 
put  to  the  test  by  the  United  States  Marine  Corps.  During  that 
time  I  endured  two  Court  Martials.  On  January  31,1991,  the  Marine 
Corps  sent  me  up  for  my  first  court  martial.  Within  two  months 
into  the  court  martial  the  Marine  Corps  dropped  the  court  martial 
against  me  and  told  me  that  I  was  cleared  of  all  charges  and 
signed  the  authorization  sheet  for  my  fourth  reenlistment .  Within 
three  weeks  of  being  cleared  of  my  first  court  martial  the  Marine 
Corps  charged  me  with  another  Court  Martial,  and  without  the 
intervention  of  yourself  and  your  colleagues,  I  don't  know  what 
would  have  happened.  Ultimately  the  second  court  martial  was  also 
dismissed.  However,  I  have  no  guarantee  that  the  military  will  not 
again  take  action  against  myself  or  another  of  our  church  members 
serving  in  the  Armed  Forces  because  of  our  way  of  worship. 

Under  the  American  Constitution  we  ajlow  people  the  right  to  burn 
the  American  flag,  but  as  a  Native  American  Indian  who  has  been 
faithfully  defending  our  Constitution,  as  I  sit  before  you  Senator 
giving  my  testimony,  I  have  to  wake  each  day  knowing  that  I'm  being 
threatened  by  fear  of  prosecution  if  I  practice  my  traditional 
belief  in  the  Native  American  Indian  Church  and  that's  a  very  hard 
f eel ing . 

The  issue  of  my  religious  freedom  does  not  just  concern  me,  but  all 
Native  American  Indians,  both  male  and  female,  who  are  serving  in 
the  Armed  Forces  all  over  the  world  today,  as  well  as  the  future 
generations  who  will  put  their  lives  on  the  line  as  you  and  I  have, 
unselfishly,  done  and  continue  to  do. 

In  April  of  1992,  I  had  an  opportunity  to  briefly  express  to  you 
Senator,  the  legal  difficulties  concerning  different  traditional 
beliefs  which  the  military  does  not  recognize,  or  is  not 
sympathetic  about  when  it  concerns  basic  human  rights  and  religious 
freedom  for  active  duty  Native  Americans  in  the  Armed  Forces,  even 
though  our  warriors  both  male  and  female  are  out  there  defending 
that  right  for  everyone  in  the  United  States. 

When  we  spoke  Senator  I  personally  asked  that  all  Native  Americans 
serving  on  active  duty  in  the  Armed  Forces  be  included  in  the 
writing  structure  of  the  Bill.  By  doing  this  Senator  it  would 
leave  no  misinterpretation  in  the  military  judicial  system  as  to 
how  they  will  interpret  this  legislation. 

In  conclusion,  Senator,  I  speak  for  my  family  and  the  many  other 
families  and  veterans  across  this  great  country,  for  we  have  all 
talked  and  prayed  many  times  about  this  issue  concerning  our  basic 
human  rights  as  Native  Americans  to  practice  our  religious  and 
traditional  values  without  having  to  be  threatened  or  prosecuted  by 
the  laws  which  govern  the  Constitution  of  the  United  States.   I 


87 


respectfully  ask  as  a  citizen  of  the  United  States  of  America  that 
all  of  our  words  through  these  testimonies  be  heard  by  you,  the  law 
makers  of  this  Country,  and  that  you  all  grant  your  support  in 
defending  our  right  to  religious  freedom,  a  right  this  country  was 
founded  upon. 

As  a  veteran  of  the  Marine  Corps  for  over  fifteen  years,  it  gives 
me  great  hope  to  know  we  have  outstanding  political  leaders  such  as 
your  self  and  the  other  honorable  members  who  are  also  with  the 
United  States  Senate  and  sit  on  your  Committee  with  a  dedication  to 
fairness  for  all  humankind.  To  me,  what  makes  our  country  what  it 
is  today  is  exceptional  leaders  like  yourself  and  your  Committee 
members.   Thank  you. 


As  attachments  to  my  testimony  I  would  like  to  submit  for  the 
record  of  this  Hearing  the  following  supportive  documentation: 

1.  Department  of  the  Army  Pamphlet  ^No.  165-13  dated  April,  1978 
entitled  "Religious  Requirements  and  Practices  of  Certain  Select 
Groups  ,  A  Handbook  for  Chaplains".  I  am  submitting  that  portion 
which  describes  the  Native  American  Indian  Church. 

2.  A  Memorandum  from  the  Congressional  Research  Service,  Library  of 
the  Congress  to  the  Senate  Select  Committee  on  Indian  Affairs  dated 
April  20,1990,  and  entitled  "Native  American  Church:  Background 
I nf ormat  ion" . 

3.  Copies  of  portions  of  my  military  record  which  corroborate  my 
testimony  with  regard  to  my  1992  reenlistment  and  subsequent  court- 
martial  actions  taken  against  me. 

4.  Resolution  of  the  Navajo  Tribal  Council  (CF-14-90)  entitled 
"Declaring  the  Navajo  Nation's  Opposition  to  the  Persecution  of  the 
Native  American  Church  and  Urging  Other  Governments  to  Recognize  as 
a  Religion  an  To  Accommodate  the  Practice  of  the  Religion  of  the 
Native  American  Church. 

5.  Petition  signatures  of  866  registered  voters  from  numerous 
states  who,  after  listening  to  my  story,  and  hear ing " about  the 
proposed  amendments  to  AIRFA  wanted  to  voice  their  support. 

Shawn  Arnold 

SSgt     USMC 


88 


TESTIMONY 

OF  TROY  NAKAI 

MEMBER,  NATIVE  AMERICAN  CHURCH 

U.S.  ARMY  COMBAT  VETERAN,  DESERT  STORM 

PRESENTED 

TO 

SENATE  SELECT  COMMITTEE  ON  INDIAN  AFFAIRS 

SENATOR  DANIEL  K.  INOUYE,  CHAIRMAN 

CONCERNING 

AMERICAN  INDIAN  RELIGIOUS  FREEDOM: 

THE  SACRAMENTAL  USE  OF  PBVOTR 

PRESENTED 

AT  A  HEARING  HELD   IN 

PORTLAND,    OREGON 

ON 

MARCH    7,    1992 


89 


Senator  Inouye,  representatives  from  the  Congress  of  the 
United  States,  I  am  honored  to  be  invited  to  speak  to  you  today  on 
a  subject  that  is  of  the  deepest  importance  in  my  life. 

My  name  is  Troy  Kakai.  I  am  Navajo  and  Winnebago  and  live  in 
Navajo,  New  Mexico.  I  have  been  a  member  of  the  Native  American 
Church  all  my  life.  I  was  baptized  into  this  church  as  an  infant. 
My  family  has  always  been  active  members  of  the  Native  American 
Church . 

I  joined  the  Army  in  December  of  1987.  My  family  had  Native 
American  Church  services  for  me  when  1  left  for  the  Army.  My 
family  also  sponsored  Native  American  Church  prayer  meetings  for  me 
when  I  was  in  the  service,  for  instancy  when  I  was  first  sent  to  be 
stationed  in  Europe. 

When  I  was  stationed  in  Germany  I  got  orders  for  Saudi  Arabia 
during  Desert  Shield.  I  was  sent  there  in  November  of  1990.  I  was 
there  when  on  January  15,  1991  Desert  Shield  became  Desert  Storm. 

I  was  in  a  front  line  combat  unit  until  May  of  1991,  after  the 
conclusion  of  Desert  Storm.  I  was  there  on  that  "Highway  of  Death" 
on  the  road  to  Baghdad.  I  suffered  there  with  those  people  in  my 
own  way.  Then  I  was  sent  back  to  Germany  and  subsequently 
discharged  honorably. 

I  had  a  hard  time  adapting  to  civilian  life.  It  was  like  I 
had  too  much  freedom  all  at  one  time.  I  couldn't  sleep  lying  down. 
I  couldn't  sleep  near  anyone.  People  asked  me  if  I  was  O.K.  I  was 
qetting  on  the  bad  side  of  my  family.  Things  got  worse  for  me.  I 
•  :>ul.":  drink  and  party  a  let. 


90 


One  day  I  was  talking  to  my  dad.  I  told  him  I  didn't  want  to 
go  on  this  way.  He  offered  to  help  me.  He  put  up  a  Native 
American  Church  prayer  service  for  me.  I  really  helped  me  out  all 
around.  I  don't  drink,  smoke... none  of  that  stuff.  I'm  working 
every  day  and,  as  a  single  parent,  I'm  taking  care  of  my  son. 

I  had  forgotten  about  taking  care  of  myself.  Through  the 
prayer  services  of  the  Native  American  Church,  I  got  control  of  my 
life  again. 

When  I  joined  the  Army  I  raised  my  hand  and  took  an  oath.  The 
First  Article  of  the  Army  Code  of  Conduct  says:  "I  am  an  American 
fighting  in  the  Armed  Forces  which  guard  our  country  and  our  way  of 
life,  and  I  am  prepared  to  give  my  life  in  their  defense." 

I  was  thinking  about  the  Native  American  Church  and  how  that 
falls  within  the  meaning  of  this  Article.  That  is  what  that 
Article  meant  to  me.  Religion  is  a  part  of  the  way  we  live.  I  was 
doing  what  I  had  to  do  so  people  back  home  will  have  this 
right.... to  pray  as  they  are  taught  to  pray  and  choose  to  pray. 

When  I  came  back  from  the  Army  and  realized  the  United  States 
Supreme  Court  said  that  the  Constitution  doesn't  protect  this 
Native  American  Church  way  of  life  and  our  way  of  praying  with  the 
sacrament  of  peyote...l  felt  disappointed. 

If  it's  going  to  be  like  that  why  do  they  say  what  they  do  in 
the  First  Article  of  the  Code  of  Conduct  to  protect  "our  way  of 
life'1"   Religion  is  the  heart  of  our  way  of  lif^. 

I  ver;t  into  the  military  and  sacrificed  that  time  of  my  life. 
-*  ahiost  makes  ne  fee]  like;  1    wasted  my  time.   I  sacrificed  my 


91 


time  and  effort  to  not  only  better  myself  physically  and  mentally, 
but  to  do  this  on  behalf  of  my  family  and  relatives.  I  went  as  far 
as  actually  laying  my  life  on  the  line  for  what  I  believed. 

Therefore,  if  I  was  to  ask  for  anything  I  would  ask  for  this 
law  to  be  passed  for  the  Native  American  Church  because  our  way  of 
life  is  basically  what  I  joined  the  military  for. 

A  long  time  ago  I  prayed  that  someday  if  I  could  do  something 
on  behalf  of  my  church,  I  would  do  or  say  it  without  a  second 
thought.  And  now  I've  been  awarded  this  opportunity  to  do  so.  SO 
I'm  here  now.  Before  I  came  here  I  also  prayed  for  a  positive 
outcome.  Hopefully  my  prayers  will  be  answered  again. 


92 


APPENDIX  C 


NATIVE  AMERICAN  CHURCH  OF  NAVAJOLAND.  INC.  -bJTZHSU 

PO.  BOX  1570*  CHINLE,  ARIZONA   86503  "^HSr^r1 

KUHtOWTH 

nnnumn 
jflw rrc  •**•» 


■UNCI  OTFCW 


The  Chief  Justice  of  the  United  Slates,  J  ^  p»* 

William  H.  Rehmquist  "**-— 

and  The  Associate  Justices  of  the  Supreme 
Court  of  the  United  States 
Washington,  D.C.  20543 

Dear  Mr.  Chief  Justice  and  Associate  Justices 

This  letter  is  in  regard  to  the  sacred  ceremonies  and  use  of  sacred  herbs  by  the 
Dine',  the  Navajo.  The  contents  are  based  upon  an  interview  with  Harvey 
Johnson.  He  told  this  story  in  his  native  Navajo  language.   It  is  retold  here  in 
English  by  his  sons.    Mr.  Johnson,  85  years  old,  is  one  of  the  prominent 
Medicine  Men  in  the  Navajo  Nation.  He  is  relied  upon  by  the  Navajo  people 
because  of  his  vast  knowledge  of  Navajo  history,  culture,  and  ceremony.   But  he 
is  more  than  an  historian,  he  is  a  Man  of  Medicine,  a  healer,  a  holy  man  who  has 
devoted  his  life  to  the  well  being  of  the  Navajo.   The  interview  begins  with  Mr. 
Johnson  relating  the  creation  story  of  the  Dine'.   Very  few  Medicine  Men  have 
his  knowledge. 

In  order  for  me  to  explain  this,  so  that  it  will  make  sense  and  tie  together,  I  can't 
just  tell  you  about  how  we  got  the  medicines,  sacred  herbs,  I  must  tell  you  the 
story  of  our  creation.  This  is  difficult  for  me  because  I  am  Dine',  Navajo.   My 
language,  religion,  the  way  I  think  is  different  from  most  of  the  people  in 
America.   It  may  be  difficult  for  you  because  I  do  not  know  you,  know  your 
language  or  your  God.   But  we  must  try  to  understand  each  other  because  this  is  a 
matter  of  great  important  to  all  Dine'.   In  another  way,  this  is  a  matter  of  great 
importance  to  all  people.   Maybe  in  our  understanding  we  will  come  to  know  and 
trust  each  other. 

Before  the  Dine',  i.e.,  present  day  Navajo  people,  were  created,  there  were  holy 
people  who  lived  on  earth.  They  were  made  by  the  Great  Spirit.  They  were 
created  for  the  purpose  of  laying  out  the  plans  to  create  the  earthly  Dine'.   They 
created,  "First  Man  and  First  Woman,"  and  with  the  assistance  of  the  first  man 
and  woman  the  Holy  People  created  the  first  children,  four  of  them. 


93 


The  first  earthly  people  (Dine')  would  not  flourish  and  multiply  as  the  holy 
people  had  intended  because  the  earth  was  a  hostile  place  with  many  dangers. 
So,  the  Great  Spirit  created,  "Changing  Woman."  She  was  raised  on  earth  by 
First  Man  and  First  Woman.  They  were  instructed  by  the  Holy  People  as  to  how 
to  raise  her.  The  Changing  Woman  (Asdza'a'  Na'dleehe)  was  brought  up  in 
accordance  with  the  primal  law  of  the  Great  Spirit  (Diyin  Ayo'at'ef ).  The  way 
she  was  raised  has  remained  a  model  for  raising  Navajo  girls  to  this  day.  When 
the  Changing  Woman  reached  adulthood  she  conceived  twin  males  for  the  Sun 
(Johonaa'ei). 

The  Holy  Twins  were  to  be  called,  Enemy  Slayer  (Nayee  Neizghahi )  and  Born 
for  Water  (Tobaji'schinf).  The  Changing  Woman  and  the  Holy  People  raised  the 
Twins  in  accordance  with  principles  set  forth  by  the  Great  Spirit.  These 
principles  were  to  be  a  model  for  raising  future 'Navajo  boys  (Nohookaa'Dine'e" ) 
who  would  live  on  the  surface  of  the  earth.  These  principles  are  still  followed 
today  as  the  way  of  preparing  Navajo  males  to  live  on  earth. 

When  the  Holy  Twins  became  young  men,  they  journeyed  to  their  Father  Sun 
(Johonaa'ei)  in  quest  for  refuge  and  salvation  which  neither  had  been  able  to  find 
on  earth.  They,  along  with  earthly  Navajos  (Dine')  were  in  constant  danger  on 
earth.  Many  had  been  hunted  down  and  devoured  by  Giant  Monsters  (Naayee  ). 
As  the  Holy  Twins  journeyed  along  the  trail  to  their  Fathers  they  had  to  endure 
numerous  hardships  and  dangers.  Upon  arrival  at  their  Father's  house  they  had 
to  endure  one  last  test  so  Father  Sun  was  completely  assured  that  the  Holy  Twins 
were  truly  his  sons. 

Upon  this  assurance,  they  Holy  Twins  received  a  purification  ceremony  in  which 
they  were  dressed  in  proper  ceremonial  attire.  This  practice  is  continued  in  our 
ceremonies  of  today.  After  the  purification  ceremony  the  Holy  Twins  were 
called  into  the  house  of  the  Sun  (Johonaa'ei).  There,  in  his  house,  Father  Sun, 
asked  the  Holy  Twins  the  purpose  of  their  journey  and  he  opened  the  vast  door  of 
his  house  to  the  east.  The  opened  door  to  the  East  revealed  all  of  the  turquoise 
on  earth.  The  Holy  Twins  answered,  "Yes,  we  want  this."  Then  Father  sun 
opened  the  great  door  to  the  West  and  great  herds  of  horses  were  seen.  To  this 
door  the  Holy  Twins  answered,  "Yes,  this  too."  Father  Sun  then  opened  the  door 
to  the  South  and  they  were  shown  the  Holy  Herbal  Medicines.  To  this  door  they 
answered,  "Yes,  this  too."  The  final  door  to  the  North  exposed  wild  animals. 
They  answered,  "Yes,  we  have  come  for  this  too." 


68-366  -  93  -  4 


94 


They  also  asked  for  weapons.  Father  Sun  refused  at  first  because  these  were 
powerful  weapons  that  were  not  to  be  used  by  anyone  but  himself.  The  Holy 
Twins  finally  persuaded  their  Father  and  received  the  weapons  with  specific 
instructions  for  use  against  the  Giant  Monsters  only. 

As  the  Holy  Twins  were  departing  Father  Sun  gave  them  the  five  spirits  of  the 
Holy  Herbal  Medicines  that  dwelled  in  his  house.  He  told  them  to  take  the 
medicines  to  the  earthly  people  (Dine')  to  heal  their  bodies,  minds,  emotions,  and 
spirits;  to  restore  them  a  state  of  harmony  (Ho'zho  ).  Father  Sun  cautioned 
against  misuse  of  these  Holy  Herbal  Medicines.  He  gave  each  medicine  a  name. 
He  also  prescribe  specific  ways  to  administer  them  to  the  people.  He  detailed 
particular  prayers  and  songs  that  must  accompany  the  medicines  as  well  as 
offerings  that  must  be  made  prior  to  their  use. 

« 
With  the  gifts  from  their  Father  the  Holy  Twins  returned  to  earth  and  made  it  a 
safe  place  for  the  Navajo  (Dine')  to  live.  The  Holy  People  formulated  the  events 
of  the  entire  journey,  The  Holy  Trail,  (Atiin  Diyinii)  into  a  healing  ceremony. 
This  ancient  ceremony  is  practiced  today  as  it  was  upon  the  Holy  Twins  return  to 
earth. 

When  the  earth  was  a  safe  place  to  live  the  Holy  People  prepared  to  depart  for 
their  holy  places  in  the  highest  mountains  of  the  East,  South,  West,  and  North. 
As  they  left  they  sent  four  of  the  Sacred  Herbs  in  all  four  directions  and 
proclaimed  that  these  medicines  were  to  used  in  holy  ceremonies  for  the  well 
being  of  the  Dine'.  The  fifth  Sacred  Herb,  Azee'ba'nat'aah  (Peyote),  designated 
as  chief  of  the  five  Sacred  Herbs,  was  sent  further  south,  where  it  was  to  remain 
until  a  special  time  when  it  was  needed.  The  Holy  People  prophesized  that 
someday  the  Dine'  would  depart  from  their  religious  ways  and  ignore  the 
teachings  of  the  Holy  People.  Their  departure  from  the  Sacred  Ways  would 
bring  chaos  and  turmoil  in  many  forms.  And  there  would  be  religious 
suppression. 

The  prophesy  was  fulfilled  with  the  westward  expansion  of  the  19th  and  20th 
century.  In  the  1800's,  the  Holy  Herb,  Azee'ba'nafaah  (Peyote),  came  first  to  the 
Plains  Indians  whose  way  of  life  had  been  almost  totally  destroyed  by  westward 
expansion.  The  Plains  people  desperately  needed  this  new  faith  to  survive. 
Shortly  after  Peyote  came  to  the  Plains  People  the  Sacred  Herb  made  its  way  back 
to  the  Dine'  who  were  trying  to  recover  from  their  captivity  at  Fort  Sumner. 


95 


The  Sacred  Herb  returned  to  the  Dine'  in  a  religious  ceremony  called  the  Native 
American  Church.  However,  it  was  met  with  opposition  by  US,  Anti-Peyote,  and 
Tribal  Officials.  And  Native  American  Church  members  were  persecuted  and 
jailed  for  practicing  their  relgion.  In  1967  Tribal  Officials  reversed  their 
opposition  and  passed  laws  allowing  the  Dine'  to  practice  their  religion. 
However,  Native  Americans,  the  Dine'  included,  did  not  enjoy  full  freedom  of 
religion  until  the  Native  American  Religion  Act  was  passed  in  1978. 

Now,  in  1990,  we  find  our  religious  freedom  threatened  again  because  of  our  use 
of  the  Sacred  Herb,  Azee'ba'nat'aah  (Peyote),  in  our  sacred  ceremonies.  This 
medicine  was  given  to  us  before  the  beginning  of  time.  It  was  given  to  us  by  our 
God,  The  Great  Spirit.  It,  along  with  the  other  four  Sacred  Herbs,  is  essential  to 
the  well  being  of  the  Dine'.  We  are  a  nation  of  people  within  a  nation.  We  obey 
the  laws  of  the  land.  We  know  there  are  many  problems  with  drug  abuse  in 
America.  We  see  the  effects  and  dangers  of  misuse,  especially  alcohol.  But 
Peyote  is  not  misused  or  abused  by  the  Dine'  in  Sacred  Ceremonies.  In  fact,  it  is 
only  when  it  is  not  used  by  the  Dine'  that  it  becomes  dangerous,  because  in  not 
using  it  we  cannot  heal  ourselves. 

The  Holy  Medicine  was  given  to  us  by  God.  When  we  use  it  we  are  in  a  sense 
taking  God  into  our  bodies.  The  Catholic  people  of  the  world  drink  wine  and  eat 
bread.  They  believe  the  wine  to  be  the  actual  blood  and  the  bread  to  be  the  actual 
body  of  their  God.  Wine  is  harmful  when  misused  but  no  one  is  proposing  to 
take  this  Sacred  Ceremony  from  them.  We  ask  for  the  same  consideration  and 
respect  for  our  Sacred  Ceremonies. 

We,  the  members  of  the  Native  American  Church  Of  Navajoland,  Inc.  hope  this 
letter  brings  about  better  understanding  regarding  the  practice  of  our  religion.   If 
you  require  additional  information  please  contact  us. 

Respectfully, 


Robert  B.  Whitehorse, 

Native  American  Church  of  Navajoland  INC. 


96 


APPENDIX  D 


Amendment  to  the 


American  Indian  Religious  Freedom  Act  of  1978 
(P.L.    95-341) 

Title  II:     Traditional  Use  of  Peyote 


TESTIMONY  submitted  by:    Mr.  Wilson  Aronilth,  Jr. 

Native  American  Church  Member 
Navajo  Nation 

submitted  to:      Senator  Pete  Domenici 
Senior  Member 
Select  Committee  on  Indian 

Affairs 
08  February  1993 
Albuquerque,  New  Mexico 


97 

Table  of  Contents 


I.  The  Native  American  Church 

and  Holy  Medicine  (Peyote)  Teachings 

II.  The  Dine  Cultural  History  of  Peyote 

III.  Native  Amercian  Church  and  Arizona  Law 


Note  to  reader: 

1.  Holy  Medicine  =  Peyote 

2.  Sacramental  Herb  =  Peyote 

3.  Divine  Herb  =  Peyote 

4.  Divine  Medicine  =  Peyote 

5.  N.A.C.  =  Native  American  Church 

6.  Dine  =  The  Navajo  People 


98 


I.     THE  NATIVE  AMERICAN  CHURCH 

AND  THE 
HOLY   MEDICINE   (PEYOTE)    TEACHING 


Before  I  begin  [this  longer  talk],  I  want  to  tell  you  I  truly  believe  in  the 
N.A.C.,  Native  American  Church,  way  of  life.  I  believe  in  the  Medicine 
(Peyote),  its  prayers,  songs  and  its  foundation  which  is  hope,  faith,  love 
and  charity. 

I  believe  in  the  foundation  and  philosophy  of  the  Fire  Place,  the  heart  and 
life  of  our  religion,  from  my  heart  and  my  mind.  I  believe  in  the  lifestyle 
and  education  that  goes  with  the  N.A.C.,  the  Fire  Place  and  its  teaching. 
Why?    Because  I  grew  up  with  it  and  the  N.A.C.  gave  me  a  good  mind, 
courage,  strength  and  a  very  good  and  beautiful  spiritual  life  to  make  my 
life  complete  up  to  this  time.   My  grandfolks  said  to  me,  "Please  learn  to 
listen  and  to  have  good  discipline  within  yourself,  then  you  will  learn  to 
understand  the  N.A.C.   way  of  teaching  which  will  beautify  your  life  with 
love,  faith,  hope  and  charity  to  achieve  the  true  principles  of  life."    The 
N.A.C,  Holy  Medicine  (Peyote)  and  the  Fire  Place  can  give  you  a  positive 
mind  to  understand  your  spiritual  being  and  your  spiritual  image.   The 
N.A.C.  and  Holy  Medicine  (Peyote)  will  help  you  to  believe  in  yourself  and 
help  you  to  believe  in  everything  that  you  do  [cc  as]  to  live  a  good  spiritual 
life  and  social  life.    Myself,  I  am  committed  to  the  maintenance  and 
survival  of  the  N.A.C  way  of  praying,  singing  and  all  of  its  beliefs  and 
values.     I  believe  in  perpetuating  and  protecting  and  enhancing  my 
grandfather's  belief  and  his  discipline  in  the  Medicine  Way  (Peyote  Way) 
of  teaching.    I  am  truthfully  convinced  that  the  N.A.C.  and  the  Holy 
Medicine  can  positively  provide  the  foundation  of  life  for  my  young  people 
and  my  elders.    This  is  to  discipline  them  to  walk  on  the  Corn  Pollen 
Road  of  Life  of  the  Holy  Medicine.    When  we  go  with  the  N.A.C,  we  go 
with  the  Holy  Medicine,  the  Holy  Spirit,  the  Fire  Place  and  the  Creator. 
When  we  do  this,  there  will  be  a  positive  gain  of  spiritual  power  and 
strength  to  walk  in  beauty  to  keep  our  soul,  spirit,  mind  and  body  pure 
and  clean.   The  Native  American  Church  and  the  Holy  Medicine  teaching 
cannot  be  poured  upon  you  like  water  on  thirsty  ground,  but  the  spiritual 


99 


feeling  of  wanting  to  achieve  the  teaching  and  happiness  must  come  from 
within  your  own  creative  Being,  like  a  spring  of  living  water.  The  N.A.C. 
way  of  teaching  is  the  spiritual  art  of  being  taught  through  the  Holy  Spirit 
of  the  Holy  Medicine  so  the  art  of  spiritual  learning  can  be  discovered,  then 
positive  understanding  can  take  place.  The  N.A.C.  can  prepare  a  person's 
life  by  instilling  the  proper  elements  in  the  mind  to  make  a  person  think 
worthy  of  himself  or  herself  and  to  wear  a  positive  image  and  identity. 
The  N.A.C.  and  the  Holy  Medicine  can  instill  a  spiritual  awareness  in  one's 
self  and  motivate  and  direct  one  to  a  good  place.  The  N.A.C.  and  the  Holy 
Medicine  can  condition  us  to  build  a  firm  structural  foundation  to  stand 
upon.  This  is  a  way  of  life  to  respect  and  a  way  to  appreciate  your  own 
values  and  beliefs,  and  to  learn  to  display  self-pride  in  a  good  way  by 
showing  love,  and  compassion  for  all  walks  of  life.  This  way  of  life  can 
motivate  your  mind,  attitude  and  behavior  on  the  right  path  of  life.  It  can 
take  care  of  you  and  protect  you  in  your  life.  Finally,  the  N.A.C.  and  the 
Holy  Medicine  will  make  you  do  the  right  thing  because  it  is  right.  Now, 
when  this  happens,  there  is  an  honest  suggestion  coming  from  the  Holy 
Medicine  to  you  and  me. 

As  a  member  of  the  N.A.C.  we  have  to  believe  in  the  Holy  Medicine  and  the 
Holy  Spirit,  so  that  our  direction  of  life  is  good  and  then  evil  and  the 
tragedies  of  life  are  not  there.  We  do  not  look  for  evil  or  magic.  We,  as 
members,  have  to  take  care  of  our  Medicine,  our  prayers  and  our  songs 
and  what  goes  with  them,  which  is  our: 

1.  Stave  =  Bow 

2.  Gourd 

3.  Eagle  Feather,  all  feathers,  etc. 

4.  Sage  that  goes  with  stave  and  medicine 

5.  Drum  and  drum  stick 

6.  Drum  hide  and  drum  rope  and  drum  rocks 

7.  Drum  water  -  charcoal  inside  the  drum  =  water 

8.  Fire  Place  -  din  moon,  sage  on  moon  -  road  on  the  moon 

9.  Fire  Poker  -  wood  we  use  for  meetings 

10.  Medicine  and  Medicine  Tea  -  we  use  for  meetings 

11.  Tobacco  and  Corn  Husk  we  use 

12.  Cedar  we  use  and  special  tobacco  we  use  for  offering 

13.  Water  we  use  and  the  basic  food  we  use 


100 


14.  Hogan  we  use  and  Teepee,  teepee  poles,  ropes,  stakes,  and  teepee 
pines 

We  should  understand  that  the  essence  and  interpretation  of  all  that  we 
use  in  the  N.A.C  ceremony  is  what  we  are  all  part  of  and  this  essence  is  the 
most  powerful  and  highest  intellectual,  spiritual,  physical,  emotional,  and 
moral  achievement  to  which  we  set  our  faith  and  our  pattern  of  life. 

As  a  member  of  the  N.A.C.  using  this  Holy  Medicine,  [we  know  that]  this 
Medicine  can  make  you  see  yourself  as  you  really  are  and  understand  that 
the  way  you  talk  is  important  to  your  self-image.  How  you  say  things  is 
important,  [and]  by  this  your  body  has  a  language  of  its  own.  The  Good 
Medicine  can  help  you  develop  a  positive  attitude  and  behavior  and  it  will 
make  you  realize  and  recognize  that  there  will  be  both  good  and  bad  in 
this  road  of  life.  This  Medicine  will  teach  you  how  to  decide  to  choose  the 
good  road  of  life.  This  is  how  you  decide  to,  emphasize  the  good  over  the 
bad.  When  you  do  this,  you  will  see  the  beauty  of  life  increase.  But  if  you 
use  this  medicine  the  wrong  way,  you  will  concentrate  on  the  bad  and  you 
will  see  unhappiness  and  failure  increase. 

As  a  member  of  the  N.A.C,  the  power  of  the  Holy  Medicine  and  Holy  Spirit 
becomes  your  spiritual  feeling  and  thinking,  [and]  then  this  is  how  it  gives 
strength  to  your  attitude  and  behavior  to  determine  the  uirection  in  which 
your  life  will  go.  Holy  Medicine's  teaching  says  [that]  this  spiritual, 
positive  attitude  will  move  your  body  forward  on  the  good  road  of  life 
which  we  call,  the  Sacred  Corn  Pollen  Road  of  Life 

The  Holy  Medicine  (Peyote)  will  make  us  see  facts,  ideas,  our  own 
emotions,  the  truth  and  our  fellow  man  as  they  all  are.  It  will  make  us  see 
the  whole  universe  in  such  a  way  that  we  understand  that  everything  goes 
together  to  make  more  sense,  and  that  we  are  a  part  of  the  whole  universe. 

The  Holy  Medicine  (Peyote)  is  created  on  wholeness  to  keep  our  soul, 
spirit,  mind  and  body  pure  and  clean.  This  is  to  say  that  [it  helps  us]  seek 
the  understanding  of  internal  unity  and  internal  life  as  Dine. 


101 


The  Native  American  Church  stands  on  the  strong  foundation  of  humanity, 
and  we,  the  Dine,  stand  together  with  the  spiritual  power  of  the  faith  of 
love.  The  Native  American  Church  is  a  house  of  ethics,  a  house  of  worship, 
a  house  of  prayers,  a  house  of  singing,  and  a  house  of  meditation  of  love 
and  understanding.  The  Native  American  Church  is  a  beautiful  echo  of 
spiritual  music  going  across  our  land  to  all  the  sacred  mountains  and 
sacred  places  of  the  Holy  People.  It  is  built  on  the  foundation  of  positive 
understanding  and  forgiveness.  The  Native  American  Church  knows  each 
prayer,  song,  laughter  and  each  tear  -  it  knows  each  peace  of  mind,  and  all 
troubled  times  and  happy  times.  The  Native  American  Church  and  the 
Holy  Medicine  (Peyote)  will  never  turn  away  or  get  tired  of  you.  We 
should  never  turn  away  from  the  N.A.C.  It  is  our  most  favorite  place  and 
our  most  favorite  scenery.  The  Native  American  Church  is  the  Great  Spirit, 
the  Holy  People,  and  you.  The  N.A.C.  is  built  on  faith,  love,  hope,  and 
charity  and  it  is  organized  by  us.  It  is  dedicated  to  the  Great  Spirit  in  the 
hope  of  peace  and  happiness  in  this  worM.  The  N.A.C.  and  the  Holy 
Medicine  (Peyote)  should  be  our  rule  of  life. 

Nobody  is  to  harm  our  Holy  Medicine.  It  was  put  here  for  religious 
purposes  and  for  healing.  This  Medicine  Way  is  one  way  that  our 
civilization  as  Indian  people  of  this  continent  existed  and  exist.  The  way 
we  were  given  these  sacraments,  plants,  and  herbs  was  through  the  Divine 
Spirit,  or  what  we  as  Navajos  call  the  Holy  People.  And  through  this 
Medicine  (Peyote),  we  would  understand  how  to  keep  our  body,  mind, 
spirit  and  soul  clean,  and  we  would  learn  to  understand  why  we  are  born 
into  this  world,  how  to  survive  in  it,  and  how  to  follow  the  natural,  cosmic 
law.  As  of  now  today,  Indian  people  -  our  people  -  our  younger 
generation,  our  daughters,  sons,  nephews,  nieces,  grandchildren  and  those 
who  are  not  born  yet  will  need  this  [Way]  to  follow  the  natural  law  [so  as] 
to  survive  and  pray  and  have  communication  with  our  Maker.  That  way 
our  generations  would  not  be  harmed  and  would  not  perish.  But  if  some 
man-made  law  tries  to  control  the  way  my  people  -  our  people-  believe, 
then  they  are  trying  to  correct  the  natural  order  and  cosmic  law  itself. 

So  today  that  is  where  we  are  and  we  want  to  caution  each  other  to 
understand  one  another  in  peace  and  harmony.  This  is  one  way  our  people 


102 


understand  life  and  living.  This  Medicine  Way  (Peyote  Way)  is  spirituality. 
It  is  wholeness  and  purposefulness  within  the  natural  cosmic  order  of  life. 
The  [Holy  Medicine]  Way  will  help  us  follow  that  natural  order  of  life  [so 
that]  we  protect  ourselves  from  harm,  danger,  evil  and  other  sickness  for 
generations  to  come. 

If  somebody's  going  to  tell  us  how  to  pray,  how  to  sing,  what  to  eat,  how  to 
dress  and  how  to  think  -  then  that's  totally  wrong.  And  it's  totally  wrong 
to  tell  us  how  to  pracdce  what  we  believe  because  we  as  Indian  people 
don't  tell  the  other  society,  "Hey,  you're  using  your  religion  the  wrong  way. 
This  is  the  law  you  have  to  use  to  control  what  you  believe."  If  we  ever 
did  that,  there  would  be  severe  jealousy  and  hatred.  I  think  we  would  be 
abusing  a  society. 

This  call  to  you  for  understanding  of  who  we  are  and  how  we  live  our  lives 
within  this  cosmic,  natural  order  is  all  for  the  protection  of  the  Holy 
Medicine  Way,  the  Sacramental  Herb  Way,  the  Peyote  Way  and  its 
teachings,  values,  its  healing  power  and  for  the  sake  of  our  children, 
grandchildren  and  the  unborn  and  for  [the  protection]  of  all  vegetation  and 
paraphernalia  that  we  use  to  pray.  This  call  for  your  understanding  is  for 
the  protection  of  Eagle  Feathers  and  other  feathers,  and  for  the  protection 
of  the  types  of  animal  we  use  ceremonially,  like  deer.  And  for  the  type  we 
use  for  food  in  our  ceremony  and  also  for  the  water  we  use.  And  for  the 
trees  and  wood  we  use.  There  are  many  things  we  use  as  Indian  people 
and  we  want  to  protect  those  things  the  way  we  were  told  to  by  the  Great 
Spirit  and  not  by  other  people.  We  want  to  protect  our  lives  and  our  living 
system  and  the  lives  of  all  the  generations  to  come. 

The  Native  American  Church  and  the  Holy  Medicine  stand  on  the  strong 
foundation  of  humanity.  We,  the  Dine,  stand  together  with  the  spiritual 
power  of  the  faith  of  love. 


103 


II.     THE  DINE  CULTURAL  HISTORY  OF  PEYOTE 

Native  American  Church  of  Navajoland 

Native  American  Church  Education  Day 

August  2,  1980 

Story  by:  Wilson  Aronilth,  Jr. 

As  a  Navajo  student  and  member  of  the  Native  American  Church,  it  is  very 
important  to  know  the  foundation  of  your  religion.  It  is  true  what  our 
forefathers  used  to  say  -  that  you  identify  yourself  to  the  Great  Spirit  and 
his  Divine  Nature  through  religion.  I  was  told  that  if  you  know  your 
religion,  you  would  identify  yourself  as  to  who  you  are,  where  you  came 
from,  and  what  direction  you  are  going. 

I  was  told  that  our  religion  and  our  ways  of  communicating  to  the  Great 
Spirit  were  created  and  developed  ahead  of  us  by  the  Great  Spirit.  The 
Great  Spirit  did  this  through  his  loving  care  so  that  we,  the  Indian  people, 
would  not  be  lost.  Also,  if  you  understand  your  religion  you  will  have 
respect  for  people  and  all  creations  If  you  take  this  religion  as  a 
foundation,  you  will  walk  in  beauty. 

The  Great  Spirit,  in  the  beginning,  gave  us  a  way  of  glorifying  Him.  He  also 
gave  us  sacred  paraphernalia  to  use  to  communicate  with  Him.  He  gave  us 
certain  things  to  eat;  to  survive.  And  he  gave  us  a  certain  way  to  dress;  to 
show  our  identity.  He  gave  us  certain  ways  to  live  on  earth.  Some  of  these 
creations  we  use,  as  Indians,  other  individual  races  of  people  cannot  use. 
So,  there  are  certain  laws  set  by  the  Great  Spirit  and  nature  to  control  this. 

The  Great  Spirit  created  peyote,  in  the  beginning,  when  He  created  all 
other  herbs  and  plants.  As  I  was  told  by  my  grandfolks,  the  Great  Spirit 
created  peyote  for  a  good  purpose  and  cause.  He  created  four  different 
kinds  of  herbs  in  the  beginning  that  were  going  to  be  useful  in  His  creation. 


104 


The  first  herb  created  by  the  Great  Spirit  was  identified  by  the  color  white 
and  He  put  it  in  the  direction  of  the  east.  This  herb  is  used  only  for  food; 
for  mankind  today  to  survive. 

The  second  herb  created  by  the  Great  Spirit  was  the  color  of  bluish-green. 
He  put  it  in  the  direction  of  the  south.  This  was  created  only  for 
ceremonial  purposes.  It  is  used  to  glorify  His  name,  for  healing  purposes, 
and  for  spiritual  guidance.  When  He  created  this  certain  herb,  He  said  that 
some  day  His  children,  the  Indian  people,  would  use  it  for  religious 
purposes.  This  is  what  most  European  people  call  peyote.  We,  as  the 
Indian  people,  have  our  own  name  for  it. 

The  third  herb  was  identified  by  the  color  yellowish-orange.  The  Great 
Spirit  placed  it  in  the  direction  of  the  west.  This  was  created  only  for  His 
other  creations  so  they  could  use  it  and  survive,  which  are  the  animals, 
birds,  insects,  etc.  - 

The  fourth  herb  was  the  color  black  which  was  placed  in  the  north 
direction.  He  created  this  herb  only  for  the  Mother  Earth's  purposes,  the 
Father  Sky's  purposes,  and  His  Divine  Helpers,  so  that  they  could  benefit 
by  it. 

"Peyote"  What  is  peyote  to  you?  Think  about  it  for  awhile.  To  some  of  us 
peyote  is  a  sacrament.  It  is  divine  herb  and  a  divine  medicine.  The  Great 
Spirit  created  this  divine  herb  in  the  beginning  and  when  He  did  this  he 
put  His  love,  spiritual  healing,  comfort,  knowledge,  wisdom,  and  the 
characteristics  of  life  for  mankind  to  enjoy.  This  is  a  blessing.  This  is  the 
reason  why  we  say  that  no  man  made  this  divine  herb. 

The  Great  Spirit  foretold  that  one  of  His  creations,  His  children  were  going 
to  lose  out  on  their  religion,  beliefs,  identity,  language,  and  direction.  For 
this  reason  He  created  this  divine  herb  for  His  children,  the  Indian  people, 
to  use  to  refresh  their  minds,  identities,  and  to  put  them  back  on  the  right 
road  of  life  upon  which  the  Great  Spirit  intended  for  them  to  travel.  Also, 
[He  created  this  divine  herb]  to  gain  love,  comfort,  and  spiritual  healing. 


105 


The  Great  Spirit  said  that  He  is  everywhere.  He  said  He  walks  with  you 
every  minute  of  your  life,  no  matter  what  kind  of  person  you  are  or  what 
you  do.  For  this  reason  the  Great  Spirit  has  to  be  in  the  divine  herb.  His 
power  and  spirit  is  in  the  divine  herb.  For  this  reason,  the  divine  herb  is 
alive,  it  can  see,  it  moves,  it  talks,  it  sings,  its  grows,  it  can  hear  ,  and  so  it 
listens. 

We,  the  Dine,  have  a  name  for  peyote.  We  call  it,  "The  divine  herb  who 
lives  with  the  Mother  Earth's  flesh",  "The  divine  herb  that  travels  by  the 
holy  spirit  of  the  rainbow  and  the  sunbeam."  "The  divine  herb  that  makes 
his  home  with  the  early  twilight  dawn,"  and  "The  divine  herb  that  can  give 
you  life  and  materialistic  things  of  value."  This  is  the  closest  I  can 
translate  from  the  Navajo  language  to  English.  There  are  the  four  names 
that  the  Navajos  call  peyote,  other  tribes  have  different  names  for  it. 

The  divine  herb  has  its  own  culture  and  story.  These  are  controlled  by  the 
Great  Spirit  and  his  divine  nature.  This  herb  can  talk  to  you  through 
mysterious  ways  and  show  you  something  good.  It  was  foretold  by  our 
forefathers  that  this  herb  was  going  to  come  back  to  us  someday  when  we 
are  in  need.  It  will  always  be  remembered  that  the  coming  of  this  herb 
was  found  by  an  Indian  woman.  It  didn't  say  what  tribe  she  was  from.  We 
were  told  that  we  were  all  one  people  in  the  beginning. 

When  the  woman  found  this  herb  it  was  a  pretty  flower.  This  woman 
recognized  this  plant  and  flower  as  the  Holy  Spirit's  flower  because 
through  this  plant  the  Holy  Spirit  talked  to  this  woman  and  gave  her  a 
direction  to  survive. 

Peyote  is  taken  only  as  a  holy  sacrament  at  a  place  prepared  for  this 
religious  ceremony,  either  in  a  hogan  or  a  teepee.  It  has  to  be  at  a  quiet 
place,  away  from  all  the  noise  that  goes  on.  Peyote  is  adrninistered  raw,  or 
in  a  grinded  form,  or  in  a  warm  tea.  It  can  be  used  for  colds,  pneumonia, 
tuberculosis,  and  other  health  related  diseases.  If  you  take  this  medicine 
with  a  sincere  humble  thought  it  can  clear  your  physical  being  and  purify 
and  cleanse  your  mind  and  soul  from  evil  things.  In  other  words,  it  can 
chase  the  evil  spirit  out  of  you  and  put  the  holy  spirit  within  you.  In  this 


106 


way  you  will  have  to  discipline  yourself  to  live  like  a  humble  christian 
person.  By  doing  this,  the  door  of  beauty  and  you  perception  of  beauty 
will  be  opened.  And  then  you  will  step  through  this  door  of  beauty  into  a 
better  life. 

In  the  old  days,  in  peyote  meetings,  only  traditional  clothes  were  worn  by 
the  members.  Today  we  cannot  do  that,  but  we  try.  There  is  a  saying, 
"Come  as  you  are  to  pray  to  the  Great  Spirit." 

If  you  find  peyote  for  what  it  is,  you  will  find  God  for  what  He  is.  Then  the 
door  will  open  for  you  towards  the  beauty  of  life. 

Any  members  attending  peyote  meetings  are  not  or  should  not  be  looking 
for  magic,  searching  for  witchcraft,  or  for  the  power  of  being  better  than 
his  follow  person.  Also,  he  should  not  criticize  and  talk  about  other 
people's  beliefs  and  other  churches  and  their  ways.  If  you  play  around 
with  peyote  or  use  it  in  any  other  way  other  than  for  its  religious  purpose, 
it  will  take  its  revenge  and  punish  you. 

If  you  believe  in  this  divine  herb  you  will  understand  your  faith,  belief, 
and  religion.  By  doing  this,  it  will  protect  you  from  poverty,  harm,  evil, 
and  danger.  A  lot  of  people  try  to  abuse  it  and  use  it  in  a  harmful  way. 
They  make  false  stories  and  talk  against  it,  but  all  in  all  they  either  don't 
understand  it  or  don't  know  what  its  religious  purposes  are  for. 

Peyote  cannot  be  smoked  or  mixed  with  other  things. 

Peyote  has  made  a  great  contribution  to  education,,  Indian  art  in  general, 
the  health  of  the  Indian  people,  and  in  the  life  of  the  Indian  people. 

The  foundation  of  the  Native  American  Church  of  Navajoland  is  love,  faith, 
hope  and  charity.  In  this  religion,  brotherly  love  and  friendship  is 
practiced  and  it  is  believed  that  it  is  good  to  forgive  one  another. 

The  significant  values  and  meanings  behind  the  sacred  paraphernalia  are 
these: 


107 


"Fire"  -  Fireplace 

It  is  the  heart  and  life  of  our  religion. 

"Tobacco  lighter" 

Our  religion  carries  a  light  of  life  for  our  family  and  our  people. 
It  is  our  protector  and  shield. 

"The  Altar"  -  (moon) 

Our  grandfolks  said  that  we  came  into  this  world  as  a  seed  through 
the  cycle  and  changes  of  the  moon.  This  is  where  we  came  from. 
The  road  on  the  moon  represents  the  road  of  everlasting  life,  this  is 
what  we  are  traveling  on.  From  childbirth  to  old  age  it  represents  a 
footprint  of  mankind. 

"Sage" 

Sage  represents  the  growth  of  life. 

"Pevote"  -  "Divine  Herb"  •« 

We  do  not  pray  to  the  divine  herb  or  any  other  divine  nature. 
Rather,  we  talk  to  them,  just  like  to  the  Holy  People.  Through  this 
divine  herb  we  communicate  to  the  Great  Spirit.  It  is  the  key  to  His 
Kingdom. 

"Staff' 

A  bow,  arrow,  spear  or  a  cane  is  used.  It  keeps  away  harm  and  evil 
from  us.  It  identifies  us  and  we  survive  accordingly  t^  it. 

"Gourd' 

This  represents  the  earth  and  heaven.  Through  this  gourd,  when  we 
use  it,  we  communicate  with  the  earth  and  heaven  and  with  the 
divine  nature  and  the  Great  Spirit. 

"Eagle  feather" 

The  eagle  feather  identifies  us  as  an  Indian.  We  use  it  only  in  our 
religious  ceremony.  We  hold  it  when  we  pray  and  sing  to  glorify  the 
Great  Spirit's  name.  It  represents  our  faith,  our  courage,  our  dignity 
and  our  strength. 

"Eagle  bone"  or  "Bamboo  Whistle" 

This  we  blow  to  attract  the  Great  Spirit's  attention  for  blessings  and 
spiritual  guidance  in  life. 


108 


"Sacred  Drum" 

Represents  the  Mother  Earth  and  the  Father  Sky.  There  is  life  within 
it.  That  is  why  there  is  water  in  it,  which  represents  the  male  and 
female  rain.  The  embers  within  it  represent  life  and  air.  The  drum 
cover  represents  the  first  sacred  animal,  the  deer,  which  partook  of 
the  water  in  the  beginning  of  the  creation.  The  rope  around  the 
drum  represents  the  everlasting  sunbeam  which  is  our  path  and  our 
direction.  The  seven  rocks  around  the  drum  represents  the  seven 
"knowledge"  of  the  human  beings,  the  seven  parts  and  color  of  our 
body,  the  seven  senses  of  the  human  body,  and  the  seven  days  of  the 
week  with  which  the  four  seasons  change. 

"Cedar" 

Represents  everlasting  life.  We  use  it  to  communicate  to  the  Great 
Spirit  for  His  richest  blessings.  It  also  represents  male  and  female  as 
well  as  materialistic  things. 

"Tobacco" 

This  Indian  Tobacco  is  used  for  cleansing  your  mind  and  thoughts. 
By  doing  this  you  will  have  a  clear  mind  and  positive  thoughts  and 
use  this  as  a  holy  instrument  to  communicate  with  Him.  It  is  the  key 
to  the  Great  Spirit's  Kingdom. 

"Water" 

Water  is  also  the  life  of  the  ceremony.  It  gives  you  life,  it  helps  you 
grow,  and  it  can  heal  you  and  comfort  you.  It  is  one  of  the  greatest 
helpers  of  the  Great  Spirit.  You  can  be  blessed  with  what  this  holy 
Divine  Nature  is  dressed  with. 

"Morning  Food" 

The  principle  foods  are  corn,  fruit,  and  meat. 

a)  Corn  is  for  your  brain,  your  mind  and  intelligence. 

b)  Fruit  is  for  a  fruitful  life  and  a  normal  heart  beat  and  normal 
blood  circulation. 

c)  Meat  is  your  flesh,  your  human  nature,  and  your  looks  which 
the  Great  Spirit  gave  you. 

"Songs" 

Peyote  songs  are  used  only  for  sincere  and  humble  ways  of  thinking 
to  glorify  the  Great  Spirit's  creation  and  His  Divine  Nature  and  Him. 
There  are  various  kinds  of  songs.  There  are  straight  prayer  songs, 
healing  songs,  seasonal  songs,  protection  songs,  comforting  songs, 


109 


future  path  songs,  education  songs,  appreciation  songs,  birthday 
songs,  etc. 

I  have  used  this  holy  sacrament  all  my  life  and  this  is  the  way  I 
understand  a  little  bit  of  it.  I  hope  it  will  be  beneficial  to  you  young 
youths.  Dwell,  prosper,  and  walk  on  the  road  of  beauty  so,  when 
opportunity  knocks  once  in  your  lifetime,  you  will  never  get  confused  or 
frustrated  with  he  things  that  may  come  your  way.  You  will  step  into  the 
doorway  of  opportunities.  You,  as  an  individual,  will  gain  courage, 
strength,  and  faith  and  use  these  things  as  a  foundation  and  believe  in 
them,  understand  them.  Do  it  and  it  will  take  you  in  the  right  direction. 
With  this  in  mind,  as  you  go  into  a  new  horizon,  you  will  meet  your 
objectives  and  goals  and  have  a  better  understanding  with  a  better  self- 
positive  concept.  In  this  way  you  will  see  the  pretty  value  of  home,  the 
good  foundation  of  livelihood  and  the  survival  of  this  generation.  This  is 
my  wish  for  all  of  you  young  people.  Try  your  best. 


110 


ffl.      NATIVE  AMERICAN  CHURCH  TESTIMONY:   REFERENCE  TO 

ARIZONA    LAW 

As  an  example  of  how  the  law  does  not  respect  the  Native  American 
Church  way  of  life,  we  can  look  at  the  law  of  Arizona  regarding  our 
sacrament.  Under  the  Arizona  law  our  only  protection  is  proving  an 
"Affirmative  Defense"  to  a  criminal  charge,  the  way  I  understand  it  and 
was  told  about  it. 

This  type  of  law  places  an  enormous  arid  unfair  burden  upon  members  of 
the  N.A.C.  We  are  believed  to  be  guilty  and  are  forced  to  prove  the 
following  three  things  about  our  use  of  peyote.    That  we  use  the  Holy 

Medicine,  Peyote, 

« 

1.  in  connection  with  the  bona  fide  practices  of  a  religious  belief,  and 

2.  as  an  integral  part  of  a  religious  exercise,  and 

3.  in  a  manner  not  dangerous  to  public  health,  safety  or  morals. 

Failure  to  prove  all  three  of  these  things  can  result  in  conviction  of  a 
felony. 

This  is  an  indignity;  it  can  be  very  expensive  to  prove  and  can  even  be 
very  hard  to  prove  to  a  court.  It  subjects  honest  N.A.C.  members  to  arrest 
and  incarceration  and  for  these  reasons  it  has  the  effect  of  discriminating 
against  member  of  this  particular  religion  -  my  religion. 

Both  the  nature  of  the  Arizona  law,  and  the  fact  that  various  states  have 
different  kinds  of  protective  laws  (or  none  at  all)  all  points  clearly  to  the 
need  for  a  uniform  federal  law,  under  the  Trust  Doctrine,  that  would  allow 
us  as  practitioners  of  this  religious  way  of  life  to  feel  secure  in  our  homes 
and  in  our  travels. 

No  other  historic  bona  fide  religion  in  this  country  is  subjected  to  such 
threatening  treatment  under  a  patchwork  of  state  criminal  laws. 


Ill 


We  are  not  criminals.  We  are  practitioners  of  our  Medicine  Way  (Peyote 
Way)  of  life. 


112 


APPENDIX  E 


EMERY  A.  JOHNSON,  (ID. 


MPH 


13826  Dowlais  Drive 

Rockville,  Maryland  20853 

(301  )  4G0-47G6 


March  7,  1993 


Honorable  Bill  Richardson 

United  States  House  of  Representatives 

Washington,  DC  20510 


Dear  Mr.  Richardson: 


I  have  been  requested  by  representatives  of  the  Native  American  Church  to  share 
with  you  my  experiences  with  the  use  of  peyote  by  American  Indian  people.  My 
experience  is  based  on  nearly  38  years  of  involvement  in  Indian  health  - 
reservation  physician  in  Minnesota  and  Nebraska,  Assistant  Area  Director  and 
Medical  Of f icer-in-Charge  of  the  Phoenix  Indian  Medical  Center,  Indian  Health 
Area  Director  in  Billings,  Montana,  twelve  years  as  Director  of  the  Indian 
Health  Service  (IHS)  and,  since  my  retirement  from  active  duty  in  1981, 
consultant  to  Indian  tribes  and  Indian  interest  organizations. 

As  a  practicing  physician,  I  had  patients  who  were  active  members  of  the  Native 
American  Church  and  in  no  instance  did  I  find  any  evidence  of  abuse  of  peyote. 
As  a  medical  care  and  public  health  administrator,  I  was  auare  of  Indian  Health 
Service  staff  experiences  with  members.  For  example,  Dr.  Robert  Bergman, 
Senior  Clinician  in  Psychiatry  and  Director  of  the  IHS  Mental  Health  Program, 
reviewed  the  use  of  peyote  in  the  Church  and  came  to  a  similar  conclusion. 

In  a  recent  computer  search  of  the  last  ten  years  of  medical  literature  at  the 
National  Library  of  Medicine,  I  found  no  report  of  abuse  of  peyote  in  the 
sacraments  of  the  Native  American  Church.  Peyote  has  been  used  for  over  a 
thousand  years  and  has  been  a  part  of  traditional  Indian  religious  ceremonies 
since  the  early  ninteenth  century.  Within  the  context  of  the  Church,  the  use 
of  peyote  is  carefully  controlled  and,  rather  than  a  drug  of  abuse,  peyote  is 
actually  used  in  the  treatment  of  other  substance  abuse. 

In  summary,  it  is  my  view  that  peyote,  as  used  in  the  Native  American  Church, 
is  not  a  drug  of  abuse  but  is  a  component  of  the  traditional  sacraments  of  the 
Church. 


Sincerely  yours, 


Emery  ft J  Johnson,  MO,  MPH 
Assistant  Surgeon  General,  Retired 
United  States  Public  Health  Service 


113 


APPENDIX  F 


OBSERVATIONS  ON  THE  RELIGIOUS  USE  OF  PEYOTE  BY  AMERICAN  INDIANS 
EVERETT  R.  RHOADES ,  M.O. 


114 


My  name  is  Everett  Ronald  Rhoades.   I  am  a  member  of  the  Kiowa 
Tribe  of  Oklahoma.   I  completed  medical  school  in  1956  and  have 
worked  as  a  physician  since  that  time  with  expensive  experience 
in  academic,  military,  private,  and  public  medicine.   I  have 
been  trained  as  a  scientist,  and  have  published  a  number  of 
original  investigations.   I  am  currently  the  Director  of  the 
Indian  Health  Service,  one  of  the  agencies  of  the  United  States 
Public  Health  Service.   However,  this  statement  is  purely 
personal  and  is  not  offered  in  any  official  capacity  whatsoever. 
It  is  not  to  be  construed  as  an  official  position  of  the  Public 
Health  Service. 

In  addition  to  my  now  extensive  medical  experience,  I  have  had  a 
certain  amount  of  direct  experience  with  the  Native  American 
Church  and  the  sacramental  use  of  peyote  in  its  religious 
observances.   Further,  I  have  some  knowledge  of  the  medicinal 
uses  of  peyote  in  traditional  Indian  healing  practices.   It 
might  be  of  some  interest  to  know  of  my  experience  and 
observations  relating  to  the  use  of  peyote  in  religious  and 
healing  activities  in  religious  practices  carried  out  in  the 
Native  American  Church. 

The  practices  of  the  Native  American  CJiurch  in  which  I  have 
participated  in  both  Oklahoma  and  Montana  have  been  conducted  in 
the  most  serious,  solemn,  and  devout  manner.   The  basic  worship 
is  night  long  singing  and  praying,  with  the  use  of  peyote  as  an 
essential  sacramental  element.   The  use  of  peyote  is 
eucharistic,  equivalent  to  the  use  of  sacramental  elements  in 
communion  services  in  Christian  religions,  specifically,  the  use 
of  wine  and  bread.   In  the  case  of  peyote,  it  is  not  a 
representation  of  the  body  and  blood  of  Christ  as  such,  but  a 
representation  of  the  things,  plant,  animal,  and  inanimate,  that 
God  has  placed  in  the  world,  many  of  which  are  available  for  use 
by  Man.   In  this  sense,  the  "Chief"  peyote  is  taken  as  symbolic, 
but  very  spiritual.   The  fact  that  the  peyote  has 
psychopharmacologic ,  and  therefore  mind  altering,  properties  is 
not  of  primary  importance.   Never  is  it  incumbent  upon  the 
participants  to  use  peyote  for  the  mind  altering  characteristics 
it  possesses,  even  though  some  participants  may  choose  to  do  so. 
Likewise,  my  experience  has  been  that  the  frivolous  or 
•"recreational"  use  of  peyote  outside  the  rather  strict 
observances  of  Native  American  Church  worship  is  regarded  as 
inappropriate  and  socially  proscribed  by  the  general  membership 
of  the  church. 


115 


Participation  in  Native  American  Church  worship,  with  or  without 
pharmacologic  effects  of  the  peyote  eucharist,  inculcates  a 
sense  of  worth  and  dignity  as  human  beings  and  brings  about  a 
harmonious  relationship  between  the  individual  and  the  rest  of 
the  universe.   It  is  precisely  in  this  sense  that  it  is  so 
spiritual.   I  can  personally  attest  to  this  essential  spiritual 
nature  of  the  use  of  peyote  in  religious  and  healing  procedures. 
I  have  never  known  of  any  habituation  or  addiction  to  it.   In 
fact,  there  has  always  been  a  strong  implication  that  the  use 
and  abuse  of  alcohol,  or  other  drugs,  is  contrary  to  belief  and 
the  tenets  of  the  Native  American  Church,  and  this  fact  has  been 
one  of  the  reasons  that  the  Native  American  Church  remains  an 
important  resource  in  dealing  with  the  ma]or  scourge  of  Indian 
people,  alcoholism.   In  my  experience,  those  with  alcohol  abuse 
problems  are  discouraged  from  participation  while  they  are 
dependent  upon  alcohol,  unless  participation  in  the  church  is 
part  of  an  active  program  of  sobriety.   In  this  regard,  the 
Native  American  Church  is  an  important  source  of  strength  in 
efforts  to  remove  the  terrible  affliction  of  alcoholism  from 
Indian  communities. 

I  am  aware  of  the  concern  about  the  use  of  any  mind  altering 
drug  and  the  fact  that  the  alkaloids  of  peyote  are  Class  I 
controlled  substances.   I  am  aware  of  the  dilemma  posed  oetween 
the  religious  use  of  such  a  substance  and  the  need  for 
protection  of  the  public's  health.   Further,  in  some  instances 
it  may  be  nearly  impossible  to  distinguish  between  religious  and 
secular  use  of  any  sacrament.   However,  in  the  case  of  peyote 
and  its  centuries  old  religious  use  by  American  Indians,  there 
is  a  real  possibility  of  infringement  of  the  freedom  of 
religious  expression. 

It  is  important  that  my  remarks  not  be  construed  as  condoning  or 
supporting  the  frivolous  or  other  use  of  peyote  outside  the 
Native  American  Church,  or  as  part  of  some  other  cultural 
movement.   I  speak  only  of  my  experience  with  the  Native 
American  Church.    I  have  been  impressed  with  the  organizational 
aspects  of  the  Church  and  the  efforts  of  the  Church  to  control 
the  membership,  and  the  inappropriate  use  of  its  elements.   I 
believe  there  may  be  an  opportunity  to  insure  that  control 
measures  are  available  to  the  Church  and  to  the  respective 
tribes  so  that  the  cultural  and  spiritual  use  of  peyote  in  a 
sacramental  and  healing  way  may  be  strengthened.   I  hope  that 
the  United  States  Congress  and  the  American  people  will  give 
urgent  attention  to  measures  that  would  clearly  allow  the  free 
exercise  of  the  religion  of  the  Native  American  Church. 


APPENDIX  G 


116 


•  CO-73-91 

Class  "C"  Resolution 
No  BIA  Action  Required. 

RESOLUTION  OF  THE 
NAVAJO  NATION  COUNCIL 

Requesting  the  Congress  of  the  United  States  of  America 


to  Enact  Le 

CIS 

Ucion  AcceDtabi 

e  to 

the  Navaio 

Nation 

to 

Strenathen 

the 

American  Indian 

Reliaious  Freedom  Act 

of 

1978   and 

Urging   the  New 

Mexico 

Arizona 

and   Utah 

Congressional 

Delegations 

to 

SuQoort  Such   Legislation 

WHEREAS: 

1.  The  Navajo  Nation  Council  is  the  governing  body  of 
the  Navajo  Nation,  pursuant  to  Navajo  Tribal  Code,  Title  2,  Section 
102  (a);  and 

2.  The  Navajo  Nation  deems  it  necessary  and  appropriate 
to  protect  and  preserve  the  inherent  right  and  freedom  of  each 
member  of  the  Navajo  Nation  to  believe,  express  and  exercise  his  or 
her  religion,  whether  that  religion  be  the  traditional  Navajo 
religion,  the  Native  American  Church  religion  or  any  other 
religion;  and 

3.  In  1978,  Congress  enacted  the  American  Indian 
Religious  Freedom  Act  declaring  that  it  was  "the  policy  of  the 
United  States  to  protect  and  preserve  for  American  Indians  their 
inherent  right  of  freedom  to  believe,  express  and  exercise  the 
traditional  religions  of  the  American  Indians  .  .  .  including  but 
not  limited  to  access  to  sites,  use  and  possession  of  sacred 
objects,  and  the  freedom  to  worsnip  through  ceremonial  and 
traditional  rites";  and 

4.  The  United  States  Supreme  Court  has  severely  limited 
Native  American  religious  freedom  with  its  holdings  in  recent 
decisions;  and 

5.  The  Navajo  Nation  believes,  in  principal,  that  there 
is  a  need  for  federal  legislation  to  strengthen  the  American  Indian 
Religious  Freedom  Act  of  1978  and  to  protect  traditional  Native 
religious  freedom. 

NOW  THEREFORE  3E  IT  RESOLVED  THAT: 

1.  The  Navajo  Nation  Council  hereby  affirms  the  policy 
of  the  Navajo  Nation  to  protect  and  preserve  the  inherent  right  and 
freedom  of  religion  of  all  members  of  the  Navajo  Nation. 

2.  The  Navajo  Nation  Council  requests  the  United  States 
Congress  to  enact  legislation  acceptable  to  the  Navajo  Nation  to 
strengthen  the  American  Indian  Religious  Freedom  Act  of  1978. 


117 


3.  -  The-  Navajo— Na-t-ion-  Council  urge's "  ~t"fte   New"'  "Mexico, 

Arizona   and  Utah  Congressional  Delegations  to  support   appropriate 
legislation. 

4.  The  Navajo  Nation  Council  directs  and  authorizes  the 
Navajo  Nation  President,  Attorney  General,  the  Navajo  Nation 
Washington  Office  Director  and  other  appropriate  tribal  officials 
to  do  all  things  necessary  and  proper  to  support  passage  of  Native 
American  religious  freedom  legislation  that  is  appropriate  for  the 
members  of  the  Navajo  Nation  in  conjunction  with  the 
Intergovernmental  Relations  Committee  of  the  Navajo  Nation  Council. 

5.  Further,  the  Navajo  Nation  Council  directs  and 
authorizes  said  officials  to  consult  with  the  Religious  Freedom 
Coalition  composed  of  the  National  Congress  of  American  Indians, 
the  Native  American  Rights  Fund,  the  Association  on  American  Indian 
Affairs  and  other  concerned  Native  groups  and   Indian  tribes. 

CERTIFICATION 

I  hereby  certify  that  the  foregoing  resolution  was  duly 
considered  by  the  Navajo  Nation  Council  at  a  duly  called  meeting  at 
Window  Rock,  Navajo  Nation  (Arizona),  at  which  a  quorum  was  present 
and  that  same  was  passed  by  a  vote  of  60  in  favor,  3  opposed  and  5 
abstained,  this  24th  dav  of  October  1991*. 


Speaker  '  (_y 

Navajo  Nation  Council 

October  25,  1991 
Date  Signed 


ACTION  BY  THE  EXECUTIVE  BRANCH 


Pursuant  to  2  N.T.C. ,  Section  1005 
(c)(1),  I  hereby  sign  into  law  the 
foregoing  legislation  this  2, 5"~  day 
of    ^(T^/6^^1991: 


Qii^t^ 


Peterson    Zah,    Pir^-sident 
Navajo    Nation 


Pursuant  to  2  N.T.C. 


Section  1005 


(c)(10),     I    hereby    veto    the 

foregoing   legislation  this   

day   of   1991   for   the 

reason(s)  expressed  in  the  attached 
letter  to  the  Speaker: 


Peterson  Zah,  President 
Navajo  Nation 


118 


APPENDIX  H 


IGRF-28-93 

Class  "C"  Resolution 
No  BIA  Action  Required. 

RESOLUTION  OF  THE 

INTERGOVERNMENTAL  RELATIONS  COMMITTEE 

OF  THE  NAVAJO  NATION  COUNCIL 

Supporting  the  Testimony  of  the  Navaio  Nation  Before 

the  Senate  Select  committee  on  Indian  Affairs  in 

Reference  to  Native  American  Religious  Freedom 

WHEREAS : 

1.  Pursuant  to  2  N.T.C.,  Section  821,  the 
Intergovernmental  Relations  Committee  ("the  Committee"  hereafter) 
is  a  standing  committee  of  the  Navajo  Nation  Council;  and 

2.  Pursuant  to  2  N.T.C.,  Section  822  (2),  the 
Intergovernmental  Relations  Committee  of  the  Navajo  Nation  Council 
is  authorized  to  ensure  the  voice'«and  presence  of  the  Navajo 
Nation;  and 

3.  Pursuant  to  2  N.T.C.,  Section  824  (b)  (2),  the 
Intergovernmental  Relations  Committee  of  the  Navajo  Nation  Council 
is  authorized  to  assist  and  coordinate  all  requests  for 
information,  appearances  and  testimony  related  to  proposed  county, 
state  and  federal  legislation  impacting  the  Navajo  Nation;  and 

4.  Pursuant  to  2  N.T.C. ,  Section  824  (b)  (5),  the 
Intergovernmental  Relations  Committee  of  the  Navajo  Nation  Council 
is  further  authorized  to  coordinate  with  all  committees,  chapters, 
branches  and  entities  concerned  with  all  Navajo  appearances  and 
testimony  before  Congressional  committees,  departments  of  the 
United  States  Government,  state  legislatures  and  departments  and 
county  and  local  governments;  and 

5.  Religious  issues  affecting  the  Navajo  Nation  include 
protection  of  the  sovereignty  of  the  Navajo  Nation  over  its  own 
land  and  people,  which  issue  largely  encompasses  the  matter  of 
regulatory  authority;  further,  the  Navajo  Nation  government  is 
wholly  committed  to  the  protection  of  the  rights  of  its  individual 
Navajo  members  and  all  Native  Americans  to  live  and  practice  their 
religion  in  accordance  with  individual  religious  conviction;  and 

6.  To  this  end,  the  Navajo  Nation  supports  proposed 
amendments  to  the  federal  law,  enacted  August  11,  1978,  the 
American  Indian  Religious  Freedom  Act,  which  will  change  the  law 
from  mere  policy  and  high  sounding  rhetoric  to  one  which  contains 
substantive  protections  for  Native  Americans.    The  United  States 


119 


Supreme  Court  has  made  it  patently  clear,  both  in  Lvnq  v.  Northwest 
Indian  Cemetery  Associations.  484  U.S.  439  (1988),  and  in 
Employment  Division  of  Oregon  v.  Smith.  494  U.S.  872  (1990),  that 
in  its  present  form  federal  legislation  which  addresses  Native 
American  religion,  fails  entirely  to  provide  protection  for  Native 
American  sacred  sites  or  protection  for  traditional  Native  American 
religious  activity.  Because  the  survival  of  Native  American  ways 
of  life  is  founded  in  the  spiritual,  threats  to  Native  American 
spiritual  foundations  must  necessarily  be  understood  as  threats  to 
the  very  existence  of  Native  Americans. 

NOW  THEREFORE  BE  IT  RESOLVED  THAT: 

1.  The  Intergovernmental  Relations  Committee  of  the 
Navajo  Nation  Council  approves  the  testimony  of  the  Navajo  Nation 
before  the  United  States  Senate  Select  Committee  on  Indian  Affairs 
which  proposes  amendments  to  the  American  Indian  Religious  Freedom 
Act,  enacted  August  11,  1978,  as  set  forth  and  incorporated  herein 
as  Exhibit  "A". 

2.  The  Intergovernmental  Relations  Committee  of  the 
Navajo  Nation  Council  authorizes  the  Speaker  of  the  Navajo  Nation 
Council  to  ensure  that  the  testimony  is  submitted  to  the  United 
States  Senate  Select  Committee  on  Indian  Affairs. 

CERTIFICATION 

I  hereby  certify  that  the  foregoing  resolution  was  duly 
considered  by  the  Intergovernmental  Relations  Committee  of  the 
Navajo  Nation  Council  at  a  duly  called  meeting  at  Window  Rock, 
Navajo  Nation  (Arizona)  ,  at  which  a  quorum  was  present  and  that 
same  was  passed  by  a  vote  of  8  in  favor,  0  opposed  and  0  abstained, 
this  1st  day  of  February,  1993. 


ations  Committee 


120 

Testimony  of   the 

Navajo  Nation 

before  the 

Senate  Select  Committee  on  Indian  Affairs 

in  reference  to 

Native  American  Religious  Freedom 

February  8  -  9,  1993 

The  Navajo  Nation  appreciates  the  opportunity  to  address 
issues  of  grave  concern  to  the  Navajo  Nation,  to  the  Nation's 
individual  members,  and  to  all  Native  Americans. 

Religious  issues  affecting  the  Navajo  Nation  include 
protection  of  the  sovereignty  of  the  Navajo  Nation  over  its  own 
land  and  people,  which  issue  encompasses  the  matter  of  regulatory 
authority,  and  the  continuation  of  the  Navajo  Nation  as  a  People  in 
perpetuity.  In  addition,  the  Navajo  Nation  government  is  wholly 
committed  to  the  protection  of  the  rights  of  its  individual  Navajo 
members  and  all  Native  Americans  to  live  and  practice  their 
religions  in  accordance  with  individual  religious  convictions. 

To  this  end,  the  Navajo  Nation  supports  proposed 
amendments  to  the  federal  law,  enacted  August  11,  1978,  the 
American  Indian  Religious  Freedom  Act,  which  will  change  the  law 
from  mere  policy  and  high  sounding  rhetoric,  to  a  one  which 
contains  substantive  protections  for  Native  Americans.  The  United 
States  Supreme  Court  has  made  it  patently  clear,  both  in  Lyna  v. 


121 


Northwest  Indian  Cemetery  Associations.  484  U.S.  439  (1988),  and  in 
Employment  Division  of  Oregon  v.  Smith.  494,  U.S.  872  (1990)  that 
in  its  present  form,  federal  legislation  which  addresses  Native 
American  religion,  fails  entirely  to  provide  protection  for  Native 
American  sacred  sites  or  protection  for  traditional  Native  American 
religious  activity.  Because  the  survival  of  Native  American  ways 
of  life  are  founded  in  the  spiritual,  threats  to  Native  American 
spiritual  foundations  must  necessarily  be  understood  as  threats  to 
the  very  existence  of  Native  Americans. 

Sacred  sites  have  since  time  immemorial  been  an  integral 
part  of  Native  American  religious  activities.  Protection  of  such 
sites  from  federal  and  state  government  activities  is 
unquestionably  essential.  The  proposed  amendments  which  require 
notice  consultation  and  development  of  written  alternatives 
documents  to  tribal  governments  as  well  as  to  traditional  leaders, 
and  no  commencement  of  action  or  decision  making  when  federal 
action  may  result  in  changing  the  character  or  use  of  religious 
sites  is  admirable. 

However,  one  wonders,  considering  the  checkered  history  of 
the  Environmental  Impact  Statement  experience,  under  the 
Environmental  Protection  Act,  and  the  reluctance  and  ignorance  of 
federal  agencies  to  be  supportive  of  Native  American  claims,  and 
agency  institutional  bias  for  development,  whether  this  approach 
simply  forces  Native  Americans  to  seek  court  action  for  relief.  A 
court  remedy  is  hardly  comforting  these  days  to  Native  Americans, 


122 


considering  the  cost  and  with  the  prospect  of  a  judge  uneducated  in 
Native  American  religious  practice  determining  whether  or  not  a 
federal  action  is  posing  or  will  pose  both  a  substantial  and  a 
realistic  threat  to  a  Native  American  religion  or  religious 
practice.  Nevertheless,  reinstating  the  compelling  interest  test 
for  government  action,  previously  available  but  taken  away  by  the 
Supreme  Court,  affords  protection.  The  Navajo  Nation  supports 
that  approach  for  protection  of  sacred  sites  located  off  Indian 
lands. 

The  Navajo  Nation  supports  wholeheartedly  the  recognition 
in  the  proposed  amendments  that  tribal  governments  and  their  law  or 
customs  preempt  federal  law  pursuant  to  the  inherent  retained 
sovereignty  of  tribal  governments.  It  should  be  made  clear  that  the 
tribal  law  or  custom  to  be  followed  is  that  of  the  tribal 
government  whose  land  base  is  directly  affected.  Statements 
supporting  tribal  sovereignty  are  critical  to  this  legislation 
because  such  federal  policy  statement  recognizes  tribal 
governmental  authority  over  land  and  people. 

In  furtherance  of  this  recognition,  it  is  respectfully 
suggested  that  the  matter  of  what  is  ccnf idential  and  subject  to 
deletion  from  the  record  should  be  determined  in  some  manner  by 
Tribes  and  by  Native  American  traditiona?.  practitioners  and  not  by 
the  federal  agency  or  court  which  has  the  material.  The 
determination  of  the  need  for  confidentiality  should  be  established 
by  knowledgeable  persons.  Such  determination  may  be  helpful  to  the 


123 


federal  agents  responsible  for  handling  requests  for  information, 
particularly  in  light  of  the  heavy  criminal  sanctions  imposed  for 
"knowing"  release.  The  defense  suggested  is  "I  didn't  know"  or 
"I'm  not  knowledgeable  about  Native  American  religion",  which 
defense  would  be  less  likely  where  prior  determination  is  made  by 
proper  persons. 

Another  area  where  tribal  sovereignty  can  be  greatly 
enhanced  by  the  proposed  amendments  to  the  American  Indian 
Religious  Freedom  Act  is  the  issue  of  Eagle  feathers,  animal  parts 
or  plants.  While  studying  the  matter  and  developing  a  plan  for 
prompt  disbursal  and  sufficient  allocation  may  eventually  result  in 
simplifying  the  process  for  individuals,  the  approach  taken  seems 
to  depart  rather  sharply  from  the  strong  approach  favoring  tribal 
sovereignty  found  in  the  sections  related  to  sacred  sites.  Rather 
than  rely  on  creating  additional  federal  institutions  such  as 
another  "Advisory  Council"  for  disbursal  and  allocation,  it  would 
be  more  in  keeping  with  recognition  of  tribal  sovereignty  for  the 
law  to  provide  that  tribal  government  entities  may  be  recognized  as 
repositories  and  disbursing  agents.  This  matter  is  clearly  one  of 
regulatory  control  and  should  properly  rest  with  tribal 
governments. 


The  proposed  amendments  do  suggest  that  tribal 
governments  "may  "  distribute  where  the  objects  are  discovered  on 
Indian  lands  and  the  Tribe  has  established  or  establishes  by  law  or 


124 


custom  a  permit  and  distribution  system.    This  discretionary 
language  should  be  strengthened  to  assure  that  the  Department  of 
the  Interior  Fish  and  Wildlife  Service  is  mandated  to  recognize 
tribal  government  regulatory  authority  in  this  matter.   The 
Secretary  of  Interior  presently  has  regulatory  authority  to  give 
permits.   The  regulations  related  to  Indian  religious  purposes 
should   be   redrafted   to   make   special   provision   for   tribal 
governments.     This   would   require   removing   the   regulatory 
restriction  that  applications  be  accepted  only  from  individuals. 
As  provided  for  under  the  present  law  the  Secretary's  authority  to 
enter  into  cooperative  agreements  with  State  agencies  and  the 
delegation  of  authority  attendant  to  said  agreements  should  be 
extended  to  tribal  governments.   Far  flung  regional  depositories 
delay  disbursement  to  Native  American  practioners.  Disbursement  by 
tribal   government   entities   through  agreements   and  delegated 
authority  would  result  in  a  more  effective  and  efficient  process, 
while   at   the   same   time   recognizing   and   enhancing   tribal 
sovereignty. 

Many  sacred  sites  are  no  longer  situated  on  Indian  land. 
The  Navajo  Nation  supports  access  by  Native  American  practitioners 
to  religious  sites  located  on  Federal  lands  at  all  times  and 
believes  that  National  security  and  motorized  vehicle  access 
exceptions  are  reasonable. 

The  rights  of  individual  Native  Americans  to  practice 
their  religion  must  be  protected.  Thousands  of  Navajo  people 
practice  the  centuries  old  Native  American  peyote  religion.  While 


125 


some  states  exempt  peyote  use  for  religious  purposes  from  criminal 
and  drug  enforcement  laws  and  federal  regulations  allow 
transportion  and  distribution  of  peyote  for  Native  American 
religious  ceremonies,  these  protections  are  limited.  After  the 
Supreme  Court  ruling  in  Oregon  v.  Smith,  supra,  first  amendment 
rights  of  all  Native  American  traditional  religious  practioners  are 
endangered.  Reinstating  the  "compelling  State  interest"  test  for 
determining  whether  or  not  there  is  government  infringement  on 
religious  practices  and  not  just  beliefs  is  important  to  all 
religions.  The  Congress  can  lead  the  way  to  stronger  protections 
for  all  Americans  who  practice  religious  which  have  minority  status 
by  protecting  the  first  Americans  rights  to  practice  their 
traditional  beliefs. 

There  is  no  evidence  that  the  sacramental  use  of  peyote 
in  religious  ceremonies  is  harmful  or  habit  forming.  In  fact  there 
is  substantial  evidence  that  the  religions  practices  and  beliefs  of 
the  peyote  religion  are  an  effective  means  of  combatting  alcohol 
abuse,  an  unquestionably  devastating  disease  in  Indian  country. 

Those  sections  of  the  proposed  amendments  which  address 
the  rights  of  individual  Native  Americans  in  prison  to  have  the 
same  privileges  and  access  to  practice  their  religion  as  any  other 
prisoners  are  supported  by  the  Navajo  Nation.  Since  1980,  the 
Navajo  Nation  Council  has  funded  the  Navajo  Nation  Correction 
Project,  an  effort  which  has  resulted  in  successful  negotiated 
agreements  with  states  to  permit,   American  Indian  Religious 


68-366  -  93  -  5 


126 


ceremonies  in  prisons.  Federal  recognition  by  statute  of  the 
rights  of  Native  American  prisoners  who  practice  a  Native  American 
religion  to  access  to  traditional  elders  and  materials  for 
religious  practice  and  to  sweat  lodges  is  simply  an  equal 
protection  matter.  Native  American  prisoners  should  have  the  same 
rights  as  Judeo-Christians  or  others  to  practice  their  religion. 

A  consistently  applied  federal  law  and  policy  designed  to 

protect  and  preserve  the  inherent  right  of  all  Native  Americans  to 

practice  traditional  religions  is  clearly  needed  if  the  promise  of 

freedom  of  religion  is  be  meaningful  in  Indian  country.  The  Navajo 

Nation  urges  the  United  States  Congress  to  move  expeditiously  and 

« 
aggressively  to  enact  meaningful  amendments  to  the  American  Indian 

Religious  Freedom  Act. 


127 


APPENDIX    I 


STATEMENT  OF  PRESIDENT  PETERSON  ZAH 

OF  THE  NAVAJO  NATION 

BEFORE  THE  SENATE  SELECT  COMMITTEE  ON  INDIAN  AFFAIRS 

ON  THE  AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT 


February  9,  1993 

Chairman  Inouye,  Senator  Domenici,  members  of  the  Committee,  I  thank  you 
for  this  opportunity  to  state  the  Navajo  Nation's  position  on  strengthening  the 
American  Indian  Religious  Freedom  Act  (AIRFA).  I  come  before  you  because  the 
fundamental  law  of  this  county,  the  right  of  freedom  of  religion,  does  not  protect 
Native  Americans  freedom  to  practice  native  traditional  ceremonies  and  rituals. 

The  current  policy  as  expressed  in  the  1978  Joint  Resolution  on  American 
Indian  Religious  Freedom  (Public  Law  95-341,  92  Stat.  469)  states: 

it  shall  be  the  policy  of  the  United  States  to  protect  and  preserve  for 
American  Indians  their  inherent  right  of  freedom  to  believe,  express,  and 
exercise  the  traditional  religions  of  the  American  Indian,  Eskimo,  Aleut, 
and  Native  Hawaiians,  including  but  not  limited  to  access  to  sites,  use 
and  possession  of  sacred  objects,  and  the  freedom  to  worship  through 
ceremonial  and  traditional  rites. 

This  current  policy,  a  policy  statement,  provides  no  legal  cause  of  action  to 
aggrieved  practitioners.  Simply,  this  policy  cannot  be  enforced.  This  has  been 
affirmed  by  the  recent  Supreme  court  decisions  in  the  Employment  Division  of  Oregon 
v.  Smith  (493  U.S.  378)  and  Lynq  v.  Northwest  Indian  Cemetery  Association  (485 
U.S.  439)  cases  which  make  it  clear  that  there  is  limited  Federal  protection  for  the 


128 


right  of  Native  Americans  to  practice  their  traditional  religions. 

The  Navajo  Nation  Council  resolution  CO-73-91  "affirms  the  policy  of  the 
Navajo  Nation  to  protect  and  preserve  the  inherent  right  and  freedom  of  religion  of  all 
members  of  the  Navajo  Nation.  The  Navajo  Nation  believes,  in  principle,  that  the 
American  Indian  Religious  Freedom  Act  should  be  strengthened  to  protect  traditional 
Native  religious  freedom. 

On  February  1,  1993,  Intergovernmental  Relations  Committee  of  the  Navajo 
Nation  Council  by  Resolution  IGRF-28-93,  approved  the  Navajo  Nation's  testimony 
before  the  United  States  Senate  Select  Committee  on  Indian  Affairs.  Through  the 
efforts  of  the  AIRFA  Coalition,  this  bill  has  been  greatly  improved.  I  believe  the 
current  legislation  will  provide  the  Navajo  Nation  and  the  many  tribes  throughout  the 
Nation  a  mechanism  to  further  protect  and  preserve  our  practice  of  traditional  religion. 
An  important  change  we  support  is  Section  501  that  will  provide  legal  protection  in 
the  practice  of  Native  religions  and  places  a  barrier  in  the  exercise  of  governmental 
authority  which  might  interfere  with  those  practices.  In  addition,  it  reinstates  the  First 
Amendment  test,  stripped  from  Indian  and  all  Americans  in  the  Smith  decision. 

It  is  the  policy  of  the  Navajo  Nation  to  protect  the  inherent  rights  embodied  in 
our  sovereign  status,  including  our  right  to  self  governance  and  our  right  to  individual 
liberty,  The  amendments  strengthen  the  current  law  by  acknowledging  the  inherent 
rights  of  Indian  tribal  governments  and  the  right  of  individual  Native  Americans  to  their 
beliefs  and  to  practice  their  religions. 


129 


Protection  of  Sacred  Sites 

The  Navajo  people  has  a  strong  cultural  and  religious  base.  The  Navajo 
philosophy  evolves  around  living  in  harmony  with  the  universal  laws  of  the  four  sacred 
elements,  the  earth,  water,  air  and  light.  Navajos  were  placed  within  the  four  sacred 
mountains;  Mount  Blanco,  Mount  Taylor,  San  Francisco  Peaks  and  Hesperus 
Mountains.  The  entire  region  within  the  four  sacred  mountains  is  considered  sacred 
and  holy  to  the  Navajo  people.  It  is  on  this  land  there  are  places  of  special  power, 
locations  of  special  natural  or  cultural  processes,  events  and  immortal  beings.  The 
interaction  of  natural  forces  with  the  earth  create  sacred  areas  that  are  most  powerful. 
It  is  these  sacred  Navajo  visit  using  prayers,  songs  and  ceremonies  to  interact  with 

fig 

these  powers.    These  sacred  sites  and  areas  provide  the  ways  of  Navajo  life  that  it 
rightfully  protect. 

Federal  laws  protect  special  places  and  historic  sites  that  are  important  to  the 
American  people  such  as  Civil  War  battlefields.  Though  many  natural  areas  such  as 
the  Grand  Canyon  in  Arizona  are  preserved,  the  cultural  traditions  including  religious 
practices  associated  with  them  are  not  protected.  Currently,  the  National  Park  Service 
policies  and  regulations  (36  CFR  2.1  (a)(ii)  and  36  CFR  2.1  (d)  prohibit  American 
Indians  from  gathering  or  collecting  natural  resources  (plants,  animals  and  minerals) 
for  ceremonial  uses,  thus,  infringing  on  Native  American  religious  practices  and 
interfering  with  religious  beliefs.  In  contrast,  scientific  collecting,  gathering  of 
firewood  while  visiting  the  park  and  collecting  nuts,  fruits  and  berries  are  permissible. 
If  the  collecting  is  for  religious  purposed,  however,  it  is  prohibited. 


130 


It  is  the  policy  of  the  Navajo  Nation  to  protect  and  preserve  sacred  areas  for 
religious  offerings,  pilgrimages,  and  herb  gathering.  Recently,  a  company  proposed 
to  build  an  asbestos  storage  facility  near  Dzilth-Na-O-Dithle,  New  Mexico.  This  is  a 
sacred  area  called  Dinetah,  the  site  of  the  Navajo  emergence.  This  area  has  always 
been  considered  sacred  Navajo  land  despite  the  mixture  of  state  and  federal  land 
holdings.  Such  a  proposed  asbestos  storage  facility  as  well  as  any  federal  or 
federally-assisted  undertaking  violates  Navajo  belief  and  doctrine  of  protecting  our 
mother  earth  from  destruction,  alteration  or  desecration.  The  Navajo  Nation  was 
successful  in  blocking  the  building  of  this  facility  based  on  arguments  including 
interference  with  religious  practice  and  desecretion  of  a  religious  site. 

The  Navajo  Nation  Council  enacted  the  Cultural  Resources  Protection  Act  of 
1 988  to  protect  sacred  places  and  other  cultural  resources  important  to  Navajos  and 
other  Indian  communities.  These  laws  cover  only  lands  now  under  jurisdiction  of  the 
Navajo  Nation  government.  The  traditional  Navajo  homeland  is  a  much  larger  area 
that  surrounds  present  Navajoland  and  is  full  of  sacred  places  on  lands  controlled  by 
federal  and  state  governments,  private  parties,  and  other  Indian  tribes.  The  proposed 
amendments  to  AIRFA  together  with  strong  implementing  regulations  would  help 
protect  many  more  of  these  places  than  existing  laws  and  policies  currently  allow. 

Traditional  Use  of  Peyote 

The  sacramental  use  of  peyote  for  bona  fide  religious  purposes  is  not  foreign 
to  the  Navajos.  Traditional  Navajo  medicine  men  account  for  the  origin  of  this  sacred 
herb  on  Navajo  land.  The  Smith  decision  has  clearly  stated  that  the  first  amendment 
of  the  United  States  Constitution  does  not  protect  the  traditional  use  of  peyote  by 


131 

Native  Americans.  American  Indians  including  Navajo  should  not  be  penalized  or 
discriminated  against  on  the  basis  of  such  use,  possession,  harvest  or  transportation. 

Sergeant  Shawn  Arnold,  a  Navajo  member  of  the  U.S.  Marine  Corps,  has  twice 
been  threatened  with  court  martial  because  of  possession  of  peyote  and  for  being  a 
member  of  the  Native  American  Church.  This  kind  of  oppression,  persecution  and 
discrimination  are  consistently  experienced  by  members  of  the  Native  American 
Church. 

Currently,  the  U.S.  Department  of  Justice,  Drug  Enforcement  Administration's 
(DEA)  regulatory  exemption,  21  C.F.R.  1  307.31 ,  provides  for  the  sacramental  use  of 
peyote  in  ceremonies  of  the  Native  American  Church.   The  Navajo  Nation  supports  a 

« 

statutory  exemption  over  a  regulatory  exemption,  which  this  legislation  will  provide. 
In  a  letter  dated  August  08,  1991  the  DEA  has  stated  their  preference  for  such  a 
statutory  exemption  over  an  administrative  one. 

Prisoner's  Rights 

The  Navajo  Nation  has  a  Corrections  Project  to  provide  counseling  and  advocate 
on  behalf  of  Navajo  inmates  incarcerated  in  federal  and  state  prisons.  Navajo  and 
Native  American  inmates  are  discriminated  against  when  they  wish  to  practice  their 
native  religion. 

An  integral  part  of  the  Corrections  program  is  providing  opportunity  for  religious 
and  spiritual  ceremonies  in  counseling  and  treatment  of  these  inmates.  The  traditional 
Navajo  counseling  and  healing  of  an  individual  involves  treatment  of  the  body  and 
mind  which  ought  to  be  afforded  to  our  Navajo  inmates.  The  proposed  amendments 
will  allow  our  fellow  Native  American  inmates  to  exercise  their  traditional  religious 


132 


practices. 

Religious  Use  of  Eagles  and  Other  Animals  and  Plants 

Eagle  feathers  and  their  parts,  and  other  animals  and  plants  are  important 
elements  in  the  practice  of  Navajo  religious  ceremonies.  The  use  of  these  elements 
are  sacred  and  are  used  only  by  proper  procedures  in  religious  ceremonies  as  carried 
through  many  generations. 

Federal  statutes  have  placed  restrictions  on  the  taking  and  the  use  of  eagle 
feathers  and  its  parts  because  they  have  been  identified  as  protected  species  under 
the  Federal  Endangered  Species  Act.  The  proposed  AIRFA  amendments  provides  that 
the  existing  procedures  for  obtaining  and  the  use  of  eagle  feather  or  eagle  parts, 
nests,  or  eggs  for  traditional  use  be  streamlined  and  strengthened.  However,  the  bill 
does  not  state  on  how  the  government  will  simplify  and  strengthen  thp  process  for 
eagle  feathers  or  eagle  parts  permits. 

The  Navajo  Nation  supports  the  legislation's  part  that  empowers  Indian  tribes 
to  administer  collection  and  distribution  of  bald  or  golden  eagles  or  their  part,  nest,  or 
eggs  which  are  discovered  on  Indian  lands  by  issuance  of  tribal  permits  to  Native 
American  practitioners  and  for  direct  distribution  of  bald  or  golden  eagles  or  their 
parts,  nest,  or  eggs  in  accordance  with  tribal  religious  custom.  This  section  of  the  law 
will  allow  our  tribe  to  directly  control  and  distribute  those  articles  to  Native  American 
practitioners  once  the  tribe  has  established,  by  tribal  law  or  custom,  a  procedure  for 
that  process.  The  Navajo  Department  of  Fish  and  Wildlife  under  the  Division  of 
Natural  Resources,  except  as  limited  by  Federal  Endangered  Species  Act,  manages 
wildlife  resources  and  has  enacted  fish  and  wildlife  codes  and  which  are  enforced. 


133 


The  proposed  AIRFA  amendments  should  recognize  this  tribal  authority. 

Conclusion 

The  Navajo  philosophy  and  religious  belief  is  deeply  rooted  in  a  balanced  co- 
existence with  the  natural  environment  and  its  laws.  The  traditional  religious  practices 
and  ceremonies  are  in  existence  to  maintain  this  balance.  It  is  important  that  sacred 
sites,  the  use  of  eagle  feathers  and  parts,  animals,  and  gathering  of  herbs  are 
preserved  and  protected  for  Native  Americans.  I  appreciate  this  moment  to  present 
to  you  concerns  of  the  Navajo  Nation  in  the  protection  and  preservation  of  our  way 
of  life.  I  urge  you  and  you  colleagues  to  do  all  in  your  authority  to  pass  this  important 
legislation. 


134 


APPENDIX  J 


RESOLUTION  OF  DINE' 
TRADITIONAL  HEALING  SCIENCE  PRACTITIONERS 

WHEREAS,  the  cultural  and  spiritual  survival  of  Native  American  people  is  closely  tied  to 
the  continuation,  preservation  and  well-being  of  our  tribal  religious  traditions;  and 

WHEREAS,  the  right  to  worship  is  a  fundamental  human  right  that  most  Americans  take 
for  granted;  and 

WHEREAS,  in  Lvng  v.  Northwest  Indian  Cemetery  Protective  Association,  and  in 
Employment  Division.  Department  of  Human  Resources  v.  Smith,  the  Supreme  Court 
ruled  that  the  First  Amendment  does  not  protect  traditional  Native  American  sacred  sites 
from  destruction  (Lvng).  or  the  peyote  religion  of  the  Native  American  Church  (Smiths 
and 

WHEREAS,  the  American  Indian  Religious  Freedom  Act  has  not  prevented  the  Federal 
Government  from  unnecessarily  engaging  in  activities  which  impair  or  disturb  Native 
American  religious  practices  on  federal  lands; 

WE  RESOLVE  AS  FOLLOWS: 

1 .  The  Dine'  (Navajo)  Traditional  Healing  Science  Practitioners  urges  Congress  to  enact 
legislation  that  will  protect  Native  American  religions  and  basic  religious  freedom,  similar 
to  that  recently  circulated  to  tribal  leaders  by  Senator  Inouye;  and 

2.  To  that  end,  the  Dine'  (Navajo)  Traditional  Healing  Science  Practitioners  petitions 
Congress  to  immediately  hold  hearings  on  legislative  proposals  that  have  been  developed  to 
protect  Native  American  religious  freedom,  with  the  goal  of  passing  legislation  by  the  end 
of  1992. 

CERTIFICATION: 

I  hereby  certify  that  the  foregoing  resolution  was  duly  considered  by  the  Traditional 
Healing  Science  Practitioners  at  a  duly  called  meeting  at  Window  Rock,  Navajo  Nation 
(Arizona)  at  which  a  quorum  was  present  and  that  same  was  passed  by  a  vote  of  33  in 
favor  and     0     opposed,  this  la  day  of  November.  1991. 


lit|WtertYr* 


Representative  of  Traditional 
Healing  Science  Practitioners 

MOTION:   fctlw  >Jiu*~tt> 
SECOND:      Ltul     ^jjjUJ^^- 


135 


Arizona  state  senate      tel:542-5429 


APPENDIX  K 


STATE  Of  AAI20NA 

4<Xh  LEGISLATURE 

FIRST  REQULAA  SeSStON 


SENATE 


REFERENCE  TTflJE:  rtfgloui  fr^dom  rwtorabon  tot 


SCM  1001 

Introduced 
February  11, 1991 


Altered  on  fjfioaoaajaL 
Rule* 


ti&slacL 


Introduced  By 
Senators  Henderson,  R1os:  Blanchard,  Pent,  w*1k«r 

A  CONCURRENT  MEMORIAL 

URGING  THE  PRESIDENT  OF  THE  UNITED  STATES  TO  AMEND  THE  AMERICAN  INDIAN 
RELIGIOUS  FREEDOM  ACT  TO  PROTECT  THE  SACRAMENTAL  USE  OF  PEYOTE. 

1  To  the  President  of  the  United  States  of  AmHc*: 

2  Your  memorialist  respectfully  represents: 

3  Whereas,  the  Navajo  Nation  Council  Is  the  governing  body  of  the 

4  Navajo  Nation;  and 

5  Whereas,  the  Navajo  Nation  Government  is  based  on  and  operated 

6  pursuant  to  the  Navajo  Bill  of  Rights  and  the  Navajo  Nation  Council 

7  desires  to  protect  those  basic  rights  and  freedom;  and 

8  Whereas,  the  Native  American  Church  of  Navajoland,  Inc.,  Is  a  unique 

9  Indian  religious  organization  that  uses  peyote  as  a  sacrament  In  Its 

10  religious  practices  and  that  has  long  suffered  persecution  in  many  forms 

11  from  those  who  do  not  understand  the  beliefs  and  practices  of  the  church. 

12  Thousands  of  Navajos  are  members  of  the  Native  American  Church  of 

13  Navajoland,  Inc.  It  Is  Incumbent  on  the  Navajo  Ration  to  assist  and 

14  protect  Us  citizens  1n  practicing  their  religion;  and 

15  Whereas,  the  Native  American  Church  of  Navajoland,  Inc.,  has  existed 

16  1n  the  Navajo  Nation  for  many  years.   The  Native  American  Church  of 

17  Navajoland,  Inc.,  believes  that  the  church  and  the  gift  of  the  sacrament 

18  peyote  Is  as  old  as  the  emergence  of  the  Dine'  Into  this  world.  The 

19  beliefs  and  practices  of  the  Native  American  Church  of  Navajoland,  Inc., 

20  are  so  Intimately  intertwined  with  Navajo  tradition  and  culture  that  to 

21  attack  the  Native  American  Church  Is  to  attack  Navajo  life  Itself;  and 

22  Whereas,  the  Navajo  Nation  Council  declares  Its  support  of  the 

23  Native  American  Church  of  Navajoland,  Inc.,  1n  requesting  that  the 

24  religious  use  of  peyote  be  exempt  from  all  tribal,  state  and  federal 

25  criminal  laws  and  that  this  exemption  apply  to  members  of  recognized 


136 


ARIZONA  STATE  SENATE   TEL:542-3429  Mar  14. 


S.C.N.  1001 


1  Indian  tribes  who  an  members  of  the  Nitlvt  American  Church  and  art  at 

2  least  one-quarter  Indian;  and 

3  Whereas,  in  Oreoon  Employment  Division  v.  Smith,  the  United  Statat 

4  Supraaa  Court  dealt  a  crippling  blow  to  frtMol  or  religion  and  to  tht 
6  right  of  tht  Moban  of  the  Metivt  AMrlcan  Church  of  Ravejolend,  Inc.,  to 

6  autre  Ha  the  tacraMnt  of  tht  utt  of  ptyott  In  tht  practice  of  thtlr 

7  religion;  and 

•       Whtrtas,  the  Religious  Freedom  Restoration  Act  of  1990  would 

9  require  that  •  government  cannot  impose  a  burden  on  tht  free  exercise  of 

10  religion  except  in  furtherance  of  a  compelling  state  interest  and  by  ust 

11  of  tht  least  restrictive  aeans  to  that  tnd;  and 

12  whereas,  tht  proposed  Religious  Freedom  Restoration  Act  of  1990  1s 

13  an  important  and  ntctssary  response  to  a  serious  threat  to  tht  practice  of 

14  religion  1n  the  United  States;  and 

15  Whereas,  becaust  tht  ust  of  ptyott  as  a  religious  sacrament  1s 

16  unique  to  the  Native  American  Church,  the  religious  practices  of  tht 

17  Nativt  A»er lean  Church  of  Navajoland,  Inc.,  art  in  grtattr  jeopardy  than 

18  the  practices  of  mainstream  religions;  and 

19  Whtrtas,  tht  united  States  Congress,  should  amend  the  American 

20  Indian  Religious  Freedom  Act,  (Title  42  United  States  Code)  to  protect  tht 

21  right  of  members  of  the  Native  American  Church  of  Hevajolend,  Inc..  to 

22  practice  their  religion  fret  from  governmental  interference  and  to  engage 

23  legally  m  tht  sacramental  ust  of  ptyott. 

24  Wherefore  your  memorialist,  tht  Senate  of  tha  State  of  Arizona,  tht  House 

25  of  Representatives  concurring,  prays: 

26  1.  That  tht  President  of  tht  united  States  Instruct  tht  united 

27  States  Congress  to  amend  the  American  Indian  Religious  Frttdom  Act  to 
2t  allow  members  of  the  Native  American  Church  of  Ntvajoland,  Inc.,  to  engage 

29  legally  m  the  sacramental  use  of  ptyott. 

30  2.  That  tht  Secretary  of  Statt  of  tht  Stttt  of  Arizona  transmit 

31  copies  of  this  concurrent  Memorial  to  the  President  of  tht  united  States 

32  and  to  each  Member  of  tht  Arizona  Congressional  Delegation. 


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INDIAN  AFFAIRS  COMMITTEE 
WHENCE 

RULES  COMMITTEE 
SENATE  JOINT  MEMORIAL   O 

10th  legislature    -    STATE  OF  NEW  MEXICO    -    first  session.  1991 

INTRODUCE. 

J 
5fit' 


4-&«£? 


A  JOINT  MEMORIAL 
REQUESTING  THE  NEW  MEXICO  CONGRESSIONAL  DELEGATION  TO  CONSIDER  AMENDING 
THE  AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT  TO  PROTECT  THE  SACRAMENTAL 
USE  OF  PEYOTE  BY  MEMBERS  OF  THE  NATIVE  AMERICAN  CHURCH  OF  NAVAJOLAND, 
INC. 

WHEREAS,  the  Native  American  church  of  Navajoland,  Inc.,  Is  a  duly 
authorized  New  Mexico  corporation  with  over  two  hundred  thousand  mem- 
bers in  four  states  and  uses  peyote  as  a  sacranent  In  its  religious 
practices;  and 

WHEREAS,  the  right  of  the  Native  American  church  of  Navajoland, 
Inc.,  to  practice  its  religion  free  from  government  Interference  Is 
Jeopardized  by  Oregon  employment  division  v.  Smith,  a  recent  supreme 
court  case  handed  down  on  April  17,  1990.  Under  Smith,  the  Native 
American  church's  use  of  peyote  as  a  sacrament  is  not  protected  by  the 
first  amendment  of  the  constitution  of  the  United  States;  and 


138 


SJM  IS 


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WHEREAS,  the  United  States  house  of  representatives  has  Introduced 
a  bill,  H.R.  5377,  the  Religious  Freedom  Restoration  Act  of  1990,  which 
would  reinstate  the  legal  test  prior  to  Oregon  employment  division  v. 
Smith;  and 

WHEREAS,  because  the  United  States  congress,  following  their  fid- 
uciary duty  to  protect  and  preserve  Native  American  religious  rights 
and  practices,  has  enacted  the  American  Indian  Religious  Freedom  Act, 
U2  U.S.C.  1996,  It  should  also  consider  amending  this  act  to  allow  the 
sacramental  use  of  peyote  for  the  Native  American  church  of  Navajoland, 
Inc.,  and  to  continue  to  protect  the  religious  rights  and  freedoms  of 
these  members; 

NOW,  THEREFORE,  BE  IT  RESOLVED  BY  THE  LEGISLATURE  OF  THE  STATE  OF 
NEW  MEXICO  that  it  request  the  New  Mexico  congressional  delegation  to 
support  enactment  of  federal  legislation  that  amends  the  American 
Indian  Religious  Freedom  Act,  12  U.S.C.  1996,  so  that  the  exercise  of 
Native  American  ceremonial  and  traditional  rites  are  protected  and  the 
use  of  peyote  as  a  sacramental  right  is  preserved;  and 

BE  IT  FURTHER  RESOLVED  that  copies  of  this  memorial  be  transmitted 
to  the  New  Mexico  congressional  delegation. 

-  2  - 


.82931.1 


139 

Mr.  Richardson.  Thank  you  very  much. 
Mr.  Gus  Palmer,  please  proceed. 

STATEMENT  OF  GUS  PALMER 

Mr.  Palmer.  Mr.  Chairman  and  committee  members,  my  name 
is  Gus  Palmer,  Senior,  from  the  Kiowa  Tribe.  It  is  indeed  a  pleas- 
ure to  have  this  opportunity  to  come  before  you  and  discuss  our 
concern  about  our  Native  American  Church. 

My  father  and  my  mother  took  me  into  the  Native  American 
Church  when  I  was  really  young,  nine  years  old.  The  experience  I 
want  to  tell  you  about  our  Native  Americans  is  quite  a  bit,  how  I 
came  about  and  why  I  do  respect  this  church  of  ours.  It  is  an  In- 
dian religious  organization,  and  they  are  the  only  people  that  un- 
derstand this  church. 

We  have  songs  pertaining  to  God,  and  we  all  believe  in  God,  the 
creator  of  Heaven  and  Earth  and  you  and  I.  In  there,  within  the 
tipi,  you  could  see  his  creation.  Members  of  this  organization  are 
in  there,  my  father  and  my  mother,  my  grandparents,  my  in-laws, 
my  father-in-law,  all  my  relations.  I  saw  them  in  there,  how  they 
prayed.  They  prayed  for  the  welfare  of  their  family,  their  imme- 
diate family.  They  were  mostly  concerned  about  that  each  time 
when  they  have  their  Native  American  Church  right  on  the  Mother 
Earth.  They  have  there  the  altar,  the  moon,  the  sage,  then  the  tipi. 
The  tipi  is  the  home,  it  is  the  temple  of  our  Native  American 
Church. 

This  was  back  in  1918.  There  was  a  man  that  lived  with  our 
tribe  and  studied  our  tribe.  He  was  an  anthropologist  by  the  name 
of  James  Mooney.  He  so  helped  our  tribe  in  the  southwestern  part 
during  that  time  to  establish  or  incorporate  a  charter  for  them, 
knowing  that  these  Indians  didn't  know  that  you  have  to  have  a 
law,  but  he  explained  to  them  that  you  must  during  that  time,  and 
they  accepted  that.  He  helped  them  create  this  charter  for  them  to 
protect  their  church;  this  was  the  main  reason.  This  is  what  my 
grandfather  told  me. 

Today,  part  of  this  that  we  are  testifying  to  here  in  behalf  of  our 
church,  within  that  church,  when  we  go  in  there  we  feel  like  we 
are  closely  related,  because  the  non-Indian  doesn't  understand  this 
religion.  They  don't  understand  this  peyote.  It  is  even  called  a 
drug.  I  say  it  is  a  sacrament  that  God  has  created  for  the  Indian 
people.  How?  Through  the  spirit,  they  were  told,  "If  you  believe  in 
God,  you  will  find  this  out  through  the  spirit.  He  will  guide  you." 
This  is  our  Indians;  this  came  about  years  and  years  ago.  Way  be- 
fore the  non-Indian  was  ever  here,  they  knew  of  God,  that  this  sac- 
rament was  made  purposely — I  always  say  this — for  the  Indian, 
this  poor  Indian,  and  through  that  he  spoke  to  us. 

My  daughter  a  while  back— she  lived  in  Dallas — called  me  and 
said,  "Daddy,  I'm  going  to  tell  you  something.  In  spirit,  he  spoke 
to  me,  and  here's  what  I  said:  Ts  the  Native  American  Church  all 
right?'  and  he  said,  'It's  all  right.'  Ts  the  peyote  religion  all  right?' 
and  he  said,  'All  right,  because  I'm  in  there  also  in  spirit.' ' 

And  this  I  want  to  testify  today,  that  the  laws  of  Texas— it  is  a 
good  thing  that  they  have  established  the  law  there  to  protect  this 
sacrament  that  has  been  blessed  by  God.  They  call  it  peyote  be- 
cause it  grows  in  Mexico,  all  over  there,  but  there  is  just  a  small 


140 

portion  of  land  there  next  to  the  Rio  Grande  Valley  where  it  grows. 
I  am  glad  that  they  have  made  a  law  whereas  the  only  people  that 
can  go  there  and  receive  this  peyote  must  be  a  bona  fide  chapter 
member  of  the  Native  American  Church,  and  it  requires  fourth-de- 
gree blood  Indian  at  least,  and  this  is  how  we  want  it  to  be  kept, 
in  our  Indian  tribe,  because  we  are  the  only  ones  that  understand 
it,  no  one  else  understands  it. 

Before  that  law,  the  non-Indian  was  abusing  it.  How?  They  cut 
it  and  sold  it  for  money;  they  were  after  the  money.  I'm  glad  that 
they  made  a  law  there  that  only  Indians,  bona  fide  Native  Amer- 
ican Church  members,  could  receive  that. 

Also,  what  we  need  is  the  protection  of  this  sacrament  to  trans- 
port it,  to  use  it,  and  have  possession  of  it.  We  need  the  help  of 
your  committee  to  protect  our  Native  American  Church. 

[Prepared  statement  of  Mr.  Palmer  follows:] 


141 


WRITTEN  STATEMENT  OF  GDS  PALMER 

DULY  APPOINTED  REPRESENTATIVE  OF  THE 

KIOWA  AND  APACHE  CHAPTERS 

NATIVE  AMERICAN  CHURCH 


March  16,  1993 

Dear  Mr.  Chairman  and  Committee  members, 

We  thank  you  for  this  opportunity  to  come  before  you  and  to 
discuss  our  concerns.  I  am  here  on  behalf  of  the  Kiowa  and  Apache 
Chapters  of  the  Native  American  Church.  We  have  here  my  written 
statment  and  a  short  position  paper,  along  with  attachments.  We 
would  like  to  submit  these  materials  for  the  hearing  record  at  this 
time. 

My  name  is  Gus  Palmer,  Sr.  and  I  am  Kiowa  tribal  member.  I 
served  as  Kiowa  Native  American  Church  Chapter  President  from  1960 
to  1962.  I  served  as  Chairman  of  the  Kiowa  Tribe  in  1970-72. 
Currently,  I  am  serving  as  the  Kiowa  Veterans  Association  Commander 
a.k.  a.  the  Kiowa  Black  Leggins  Warrior  Society  and  have  served  in 
this  capacity  since  1958.  I  am  a  veteran  of  World  War  II  with  the 
U.S.  Army  Air  Force  where  I  was  stationin  in  England  with  the  96th 
Bomb  Group,  413  Heavy  Bombardment  Squardron.  As  a  waiste  Gunner  on 
the  Famous  Flying  Fortress,  the  B-17,  I  received  two  Air  Medals, 
two  Campaign  Battle  Stars  for  Rineland  and  Central  Europe,  European 
Theatre  Operation  Medal,  Presidential  Unit  Citation,  Sharp-Shooter 
Medal,  and  the  Good  Conduct  Medal. 

I  have  attended  the  Native  American  Church  with  my  father  and 
mother  since  I  was  9  years  old.  Today,  I  am  74  years  old.  My 
wife,  Alice  Tenadooah  Palmer,  and  I  have  been  married  53  years.  We 
have  6  grown  children,  14  grandchildren  and  6  great-grandchildren. 

The  Kiowa  and  Apache  Chapters  of  the  Native  American  Church 
have  been  using  the  sacrament  peyote  for  several  generations. 
Indeed,  it  is  well  documented  in  Anthropological  and  Archaeological 
studies.  Our  forefathers  along  with  James  Mooney  helped  to 
incorporate  the  Native  American  Church  under  corporate  charter,  in 
1918.  Our  forefathers  knew  at  that  time  that  we  would  need  to 
organize  ourselves  in  a  way  that  would  perpetuate  this  form  of 
religious  practice.  You  should  be  aware  that  several  tribes 
including  the  Comanches,  were  worshipping  in  this  manner  even 
before  Oklahoma  became  a  state.  Our  tribesman  likewise  were 
practicing  this  way  of  worship  before  1918  and  so  we  feel 
knowledgeable  about  the  subject  of  peyote.  We  are  not  to 
comfortable  talking  about  it  as  that  is  not  our  way  but  we  will  try 
to  do  the  best  we  can.  We  realize  that  a  federal  law  on  the 
subject  will  impact  not  only  the  Chapters  we  represent,  today,  but 
all  the  other  Native  American  Church  (NAC)  organizations  that  have 
adopted  this  form  of  religious  practice. 


142 


The  NAC  realizes  that  you  will  be  stormed  with  many  tribal 
governmental  concerns.  Let  me  begin  by  stating,  this  is  not  an 
issue  revolving  around  federal  funds  or  tribal  jurisdiction,  so  it 
is  not  necessarily  a  tribal  concern.  But,  we  would  suggest  to  you 
that  in  formulating  this  law,  that  you  draft  it  to  conform  to  the 
needs  of  the  religious  practitioners  and  not  to  lobbyists  or 
lawyers  who  may  have  a  different  agenda.  We  as  practioners  of  this 
peyote  religion  want  to  keep  what  little  we  have  left,  with  an  eye 
toward  keeping  it  for  our  next  generation  of  Indian  practioners. 
recommendations  for  protection  of  our  religion. 

Back. in  the  .late. 1970 's. the  American  Indian -Religious  Freedom 
Act  was  hailed  as  the  ultimate  protection  for  our  NAC,  now  we  find 
that  it  has  no  enforcement  mechanism.  We  have  found  that  it  is  a 
statement  of  policy  but  does  not  create  a  way  to  protect  us  in 
court.  We  firmly  believe  that  there  needs  to  be  a  specific 
provision  to  protect  our  religious  sacrament  and  there  needs  to  be 
protections  for  our  NAC  members  as  well.  We  have  enjoyed  a 
cordial  relationship  with  the  State  of  Texas,  through  the  years, 
even  before  the  Texas  law  gave  specific  exemptions  to  the  NAC. 
Even  before  the  Smith  decision,  there  was  fear  the  State  of  Texas 
would  close  the  fields  down  altogether.  This  threat  continued 
until  after  the  Peyote  Church  of  God  v.  Thornburq  case  was  finally 
decided.  The  Texas  law  is  a  good  law  because  it  is  restrictive, 
NAC  members  must  provide  documentation  from  their  respective 
chapters,  show  other  proof  including  blood  quantum  (  25%  or  more) 
in  order  to  have  access.  These  laws  protect  our  interests  as  NAC 
members  because  it  provides  a  minimal  safequard  for  possible  abuse 
from  Indian  and  non-Indian  alike.  We  feel  that  the  Texas  law  or 
its  standards  are  best,  if  our  religious  practices  are  to  survive 
into  the  next  century.  Is  the  best  standard  for  our  NAC. 

A  detailed  discussion  of  our  position  is  outlined  in  the 
Position  Statement  that  I  have  just  presented  to  you.  We  have  also 
attached  documentation  in  support  of  our  position. 

We  thank  you  for  allowing  us  to  address  you  today. 

Sincerely, 

Gus  Palmer,  Sr. 

Route  #3 

Carnegie,  Oklahoma  73015 

1-405-654-2351 


143 


POSITION  PAPER 

NATIVE  AMERICAN  CHURCH 
KIOWA  AND  APACHE  CHAPTERS 


I .   INTRODUCTION 

The  Native  American  Church  Chapters  (NAC)  located  in  Southwest 
Oklahoma  have  not  had  an  opportunity,  prior  to  this  hearing,  to 
officially  present  their  views  on  the  proposed  amendments  to  the 
American  Indian  Religious  Freedom  Act.  The  statements  included 
herein  are  the  official  positions  of  two  chapters.  Many  members  of 
other  chapters  share  the  same  concern.  The  Senate  has  held 
oversight  hearings  on  the  AIRFA  amendments  and  these  Chapters  thus 
far  have  not  had  an  opportunity  to  participate.  We  appreciate  the 
opportunity  to  do  so  now 

It  has  been  well  established,  in  historical  studies  and  court 
decisions,  that  the  Native  American  Church  as  a  religious 
organization  had  its  beginning  in  Southwest  Oklahoma  in  1918.  The 
tribes  represented  here  today  along  with  the  Comanche  and  Caddo 
Chapters  have  had  significant  influence  on  traditional  practices  of 
the  Native  American  Church  even  before  formal  incorporation.  It  is 
further  established  that  the  tribes  in  Southwest  Oklahoma  passed  on 
these  religious  practices  and  teachings  to  other  tribes,  including 
tribes  in  the  Northern  Plains  and  Canada.  Although  the  Kiowa  and 
Apache  Chapters  are  concerned  about  the  other  religious  freedom 
issues  that  have  been  negatively  effected,  through  judicial 
decisions,  namely,  eagle  feathers,  sacred  sites  and  prisoner's 
rights,  the  fact  that  a  federal  law  may  soon  be  introduced  which 
will  effect  the  traditional  use  of  the  sacrement,  peyote,  in  the 
Native  American  Church,  has  promoted  us  to  come  forward. 

A  draft  version  of  a  Senate  Bill,  which  includes  an  exemption 
for  the  traditional  use  of  peyote  in  Title  II  thereof,  was 
circulated  to  the  tribal  chapters  and  was  rejected  because  it  did 
not  show  enough  sensitivity  to  the  needs  of  the  Native  American 
Church  as  a  religious  institution.  We  are  alarmed  that  if  the 
Senate  bill  becomes  law,  it  would  allow  non-NAC  groups  to  organize, 
call  themselves  "bona  fide  religious  organizations"  and  thereby 
exempt  themselves  from  the  control  substance  laws  of  each  state  and 
the  federal  government.  In  addition,  in  places  like  Oklahoma  (and 
other  non-PL  280  States),  where  the  traditional  practices  take 
place  in  Indian  Country,  the  current  Senate  version  would  open  the 
door  to  other  organizations,  where  the  law  up  to  this  time  had 
forbidden  altogether.  More  horrifying  is  the  idea  that  these  same 
organizations  could  then  go  to  Texas  and  legally  gather  the 
sacrament.  We  feel  that  the  law  was  overbroard  and  appears  to 
create  more  problems  than  it  answers.  In  our  view,  the  Senate 
version  seeks  to  expand  the  federal  exemptions  currently  in  place 
in  the  Drug  Enforcement  Agency  regulations  and  will  preempt  and 
therefore  expand  the  current  Texas  exemption.  This  Senate  bill  if 
passed,  would  eliminate  the  legal  rights  the  NAC  has  gained  in  the 

PAGE  1 


144 


Courts,  as  will  be  discussed  later  in  this  paper.  The  NAC  Chapters 
here  today,  while  being  members  of  the  Native  American  Church  of 
Oklahoma,  do  not  belong  to  the  organization  that  supports  the 
Senate  draft,  American  Indian  Religious  Freedom  Coalition. 

In  our  opinion,  any  law  drafted  must  not  only  address  the 
hysteria  created  by  the  now  infamous  Oregon  Division.  Department  of 
Human  Resources  v.  Smith,  494  U.S.  872  (1990)  decision,  but  measure 
also  must  be  taken  to  insure  survival  of  a  religious  practice  that 
began  in  Western  Oklahoma.  It  is  our  belief  and  therefore  our 
position  that  a  strict  law  can  be  passed  that  would  not  only 
protect  the  sacrament,  but  foster  -protection  -for-  a  centuries  old 
religious  practice,  the  Native  American  Church,  to  insure  its 
survival  into  the  Twenty  First  Century  and  beyond. 

There  are  no  guarantees  that  a  federal  law  that  would  expand 
or  protect  a  larger  class  of  religious  observers,  would  lead  to 
less  litigation.  From  a  practical  standpoint,  legislation  purely 
aimed  at  expanding  the  legal  exemption  now  accorded  the  Native 
American  Church  would  make  a  mockery  of  the  very  ancient  religious 
practice  sought  to  be  protected.  Moreover,  a  more  liberal  law 
would  increase  the  use  of  the  sacrament.  We  must  be  mindful  that 
our  primary  emphasis,  as  Indian  advocates  and  NAC  members,  should 
be  to  protect  the  religious  practices  of  the  Native  American 
Church.  It  is  important  to  note  that  the  Smith  case  dealt  with  an 
Indian,  who  practiced  the  religion  of  the  Native  American  Church. 
Any  legislation  which  deals  with  more  than  the  legal  predicament 
faced  by  the  NAC,  as  a  result  of  the  Smith  decision,  should  be 
viewed  with  caution  and  suspicion. 

The  Native  American  Church,  prior  to  the  Smith  decision,  had 
always  thought  their  religious  practices  were  protected  by  the 
First  Amendment,  freedom  of  religion.  Prior  to  Smith .  the 
sacramental  use  of  peyote  in  Oklahoma  was  protected  by  judicial 
decision.  See  Whitehorn  v  State,  561  P. 2d  539  (Ok.  Crim.  1977). 
The  court  in  Whitehorn  held  that  although  there  was  no  specific 
statutory  exemption  for  religious  practices,  under  state  law,  the 
sacramental  use  of  peyote  by  a  member  of  the  Native  American  Church 
was  still  protected  by  the  First  Amendment.  Recently,  a  felony 
prosecution  took  place  in  Caddo  County,  State  of  Oklahoma  v 
Konuite.  CRF  91-80  (6th  Jud.  Dist.  Okla.  1991).  This  has  caused 
some  concern  among  Kiowa,  Comanche,  Apache,  Wichita,  Caddo, 
Cheyenne-Arapaho  NAC  members  since  many  live  in  Caddo  County, 
Oklahoma  or  the  surrounding  area. 

The  Kiowa  and  Apache  Chapters  agree  there  is  a  need  for  a 
legislative  cure  to  the  Smith  decision  and  discuss  this  issue  in 
Section  II  herein.  However,  without  good  reason,  the  protections 
heretofore  judicially  afforded  the  Native  American  Church  are 
sought  to  be  stripped  away  by  the  language  in  the  proposed  bill  for 
a  far  more  liberal  and  dangerous  language.  These  issues  are 
discussed  further  in  Sections  III,  IV,  and  V  herein. 

II.   THE  NEED  FOR  FEDERAL  LEGISLATION  TO  OVERTURN  SMITH . 


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It  is  now  beyond  debate,  that  a  legislative  solution  is  needed 
to  overcome  the  harm  caused  by  the  Smith  decision.  Judicial 
decisions  now  give  protection  to  the  NAC,  but  legislation  is  of 
course  preferable.  The  American  Indian  Religious  Freedom  Act  of 
1978,  is  the  foundation  for  accomplishing  this.  Section  1  of 
AIRFA  states: 

Henceforth  it  shall  be  the  policy  of  the 
United  States  to  protect  and  preserve  for 
American  Indians  their  inherent  right  of 
freedom  to  believe,  express,  and  exercise  the 
.  ...  traditional_religions.of_  the  American  Indian, 
Eskimo,  Aleut,  and  Native  Hawaiian,  including 
but  not  limited  to  access  to  sites,  use  and 
possession  of  sacred  objects,  and  the  freedom 
to  worship  through  ceremonials  and  traditional 
rites. 

Since  AIRFA  was  passed,  there  has  been  no  movement  to  expand 
or  address  the  policies  covered  by  the  act.  As  it  currently 
stands,  there  are  no  remedies  under  AIRFA  for  a  cause  of  action  and 
it  has  been  labeled  as  a  law  without  teeth. 

The  Smith  case,  while  dealing  with  an  interpretation  of  Oregon 
unemployment  laws,  has  sent  a  chill  down  the  backs  of  many  minority 
religions.  It  declared  that  an  Indian  NAC  member  would  not  be 
entitled  to  a  criminal  exemption  under  Oregon  law,  even  when 
sacramental  use  of  peyote  was  an  integral  part  of  his  religious 
practice.  Members  of  the  NAC  do  not  ridicule  the  beliefs  or 
practices  of  other  religions.  We  wonder  how  it  can  be  that  a  bona 
fide  religion  that  pre-dates  the  United  States  Constitution,  whose 
history  shows  an  existence  on  this  continent  for  several  thousand 
years,  and  which  is  one  of  a  few  religions  native  to  the  western 
hemisphere  can  mean  something  less  than  other  religions  brought 
here.  The  creator  gave  the  sacrament  to  the  Indian,  to  use  it 
with  respect  and  the  NAC  has  done  the  very  best  it  can  to  protect 
the  sacrament  and  the  sanctity  of  the  religious  practice. 

III.  THE  NATIVE  AMERICAN  CHURCH  MUST  BE  SPECIFICALLY  MENTIONED    IN 
THE  NEW  AIRFA  LEGISLATION. 

The  Native  American  Church  since  the  1960 's  have  had  its  share 
of  defending  itself  in  litigation.  In  the  very  early  cases,  the 
church  had  to  legitimize  its  religious  practices  to  the  courts  and 
remove  any  doubt  that  it  was  indeed  a  religious  movement,  not 
simply  some  cult.  See  People  v.  Woody.  394  P. 2d  813  (Cal.  1964); 
State  v.  Whittinqham,  504  P. 2d  950  (Ariz.  App.  1973);  White"horn  v. 
State.  561  P. 2d  539  (Okla.  Crim.  App.  1974).  In  recent  years,  due 
to  NAC  popularity  among  other  Indian  tribes,  legal  protections  were 
extended  undei  both  federal  law  and  state  law.  See  generally  21 
C.F.R.  1371.31;  21  U.S.C.  821;  Texas  Stat.  Ann.  Art.  4476-15 
(1976).  The  NAC  has  been  attacked  by  both  non-Indian  religious 
groups  and  non-NAC  religious  organizations  who  have  tried  to  claim 
the  same  exclusion  status.  These  groups  have  sued  the  United 
States  and  states  in  efforts  to  compel  those  governments  to  give 

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their  organizations  the  same  religious  protections  given  to  the 
Native  American  Church.  These  groups  claim  that  since  an  exemption 
from  the  various  Control  Substances  Acts  are  accorded  the  NAC,  they 
are  also  entitled.  See  Wisconsin  v.  Pock.  422  N.W.  2nd  160  (Ct. 
App.  Wise.  1988);  Olson  v.  PEA.  878  F.  2d  1458  (D.C.  Cir.  1989)  A 
number  of  federal  courts  have  rejected  their  arguments  and  have 
affirmed  the  special  status  given  to  the  NAC  based  on  the  political 
relationship  between  the  United  States  and  Indian  people.  The 
Courts  have  uniformly  held  that  Congress  could  pass  legislation  to 
protect  the  unique  culture  and  traditions  of  American  Indians. 
Peyote  Way  Church  of  God  v.  Moose.  698  F.  Supp.  1342  (N.D.  Tex. 
1988;  Rupert  v .  Fish  and  Wildlife  Dept . .  .957  F.2d  32  (1st  Cir. 
1992). 

Recent  court  decisions  in  the  Circuit  Courts  have  laid  ground 
work  for  suitable  legislation.  The  most  recent  of  these  decisions 
is  the  Pevote  Wav  Church  of  God  v.  Thornburq.  922  F.2d  1210  (5th 
Cir.  1991).  (Attachment  I)  The  Fifth  Circuit  amid  Establishment 
Clause  and  Equal  Protection  arguments,  upheld  the  constitutionality 
of  the  federal  DEA  regulation  which  provides  as  follows: 

The  listing  of  peyote  as  a  controlled  substance  in 
Schedule  1  does  not  apply  to  the  non-drug  use  of  peyote 
in  bona  fide  religious  ceremonies  of  the  Native  American 
Church. 

21  C.F.R.  1307.31  (1984).   [Emphasis  added.] 

Texas  Stat.  Ann.  Art.  4476-15  (1976)  (Attachment  II)  also 
designates  specific  exemptions  from  criminal  prosecution  for 
possession  and  use  of  peyote,  while  in  the  connection  and  exercise 
of  bona  fide  religious  practices  by  Native  American  Church  members 
of  one  quarter  (1/4)  blood  quantum  or  more.  The  plaintiffs,  Peyote 
Way  Church  of  God,  represented  a  group  comprising  predominantly 
non-Indians.  The  disturbing  facts  concerning  this  decision  are 
that  not  only  did  these  people  challenge  the  federal  law  as  being 
too  narrow,  but  attempted  to  strike  down  the  federal  and  state  laws 
altogether. 

The  practical  effects  of  a  Peyote  Wav  victory  would  have  been 
disastrous  to  the  Native  American  church.  During  the  time  of  the 
Peyote  Way  litigation  rumors  spread  throughout  Indian  County  that 
if  the  Texas  laws  were  invalidated,  the  peyote  gardens  would  have 
been  closed  down.  We  are  all  painfully  aware  that  this  could  be 
done,  under  the  holding  of  Smith ♦  Luckily,  the  Court  in  Peyote  Wav 
rationalized  the  specific  exemptions  as  being  consistent  with 
federal  policy  of  passing  laws  to  promote  the  political  status  of 
American  Indians,  not  as  favoring  one  race  over  another.  See  also 
Morton  v  Mancari.  417  U.S.  535  (1974).  What  is  more  frightening, 
is  this  attitude  of,  "If  I  can't  do  it,  you  can't  do  it,"  evident 
from  the  way  the  constitutional  arguments  progressed.  There  are 
competing  interests  between  the  civil  libertarian  view  and  the 
Indian  point  of  view.  If  the  decisions  of  Smith  and  Peyote  Way 
were  decided  differently,  they  would  have  given  satisfaction  to 
civil  libertarians  but  would  have,  from  a  practical  standpoint, 

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destroyed  the  Native  American  Church's  access  by  possibly  drying  up 
the  supply.  In  a  sense,  a  solid  victory  for  civil  libertarians 
would  be  a  defeat  for  and  spell  the  demise  of  the  Native  American 
Church  which  is  anticipated  in  the  current  version  of  the  proposed 
AIRFA  amendment  bill. 

The  shocking  realities  of  these  court  decisions  are  important 
to  shaping  a  remedy  for  the  Native  American  Church.  The  remedy, 
is  of  course  a  federal  law  that  would  amend  the  American  Indian 
Religious  Freedom  Act,  to  extend  specifically  to  NAC  members,  but 
most  important,  protect  the  source  of  the  sacrament,  in  Texas.  In 
deciding  which.is.to.be  accorded -the  most  protection,  the  latter  is 
most  important,  since  the  individual  rights  mean  nothing  without  a 
protected  religious  practice.  When  considering  legislative 
alternatives,  including  amendments  to  AIRFA  the  federal  law  must  be 
tailored  to  fit  the  needs  of  the  Native  American  Church.  A  blanket 
law,  protecting  "bona  fide  religious  practices"  would  be  a  mistake 
and  open  up  accessibility  to  a  sizeable  unknown  pool.  When  you 
couple  this  factor  with  a  law  that  has  no  restrictions  on  blood 
quantum,  then  the  risks  increase  for  abuse.  This  is  surely  not 
what  we  want  from  a  law  meant  to  protect  the  Native  American 
Church.  The  only  questions  that  remain  is  whether  legislation  that 
singles  out  the  Native  American  church  and  blood  quantum 
requirements,  can  pass  constitutional  muster.  The  Courts  have 
already  dealt  with  these  issues  and  the  questions  can  be  answered 
in  the  affirmative. 

IV.  SPECIFIC  DESIGNATION  OF  THE  NATIVE  AMERICAN  CHURCH  IN  A 
FEDERAL  STATUTE  DOES  NOT  VIOLATE  THE  EQUAL  PROTECTION 
CLAUSE. 

The  Fifth  Circuit  Court  of  Appeals  in  Peyote  Way  Church  of 
God,  ruled  that  the  regulation  exempting  only  the  Native  American 
Church  was  constitutional  in  addressing  equal  protection  challenges 
to  the  Drug  Enforcement  Agency  regulation,  21  C.F.R.  Section 
1371.31  (1990).   The  courts  said: 

We   hold   that   the   record   conclusively 
demonstrates  that  NAC  membership  is  limited  to 
%  Native   American   membership   of   federally 

recognized  tribes  who  have  at  least  25%  Native 
American  ancestry,  and  therefore  represents  a 
political  classification.  Thus,  under  Morton , 
we  must  now  consider  whether  the  preference 
given  the  NAC  'can  be  tied  rationally  to  the 
fulfillment  of  Congress'  unique  obligation 
toward  Indians.  94  S.Ct.2485.  "As  [the 
Supreme  Court  has]  repeatedly  emphasized, 
Congress'  authority  over  Indian  matters  is 
extraordinary  broad" .  Santa  Clara  Pueblo  v. 
Martinez.  436  U.S. 49, 72  S.Ct.1670,  1684,  56 
L.Ed. 2d.  106  (1978). 

Peyote  Way.  922  F.2d  at  1216.   [Emphasis  added.] 

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The  Court  in  Peyote  Way  held  that  the  NAC  exemption,  which 
allowed  Native  Americans  to  continue  their  centuries  old  tradition 
of  peyote  use  for  ceremonial  purposes,  is  rationally  related  to  the 
legitimate  governmental  objective  of  preserving  Native  American 
culture.   Most  importantly  the  court  stated: 

Under  Morton ,  the  Peyote  Way's  members  are  not 
similarly  situated  to  those  of  the  NAC  for 
purposes  of  cultural  preservation  and  thus, 
the  federal  government  may  exempt  NAC  members 
from  statutes  prohibiting  peyote  possession 
.without,  extending -the -exemption  to -Peyote 
Way's  exemption. 

Peyote  Way,  922  F2d  at  1216. 

The  Peyote  Way  decision  came  after  Smith  and  is  one  of  the 
latest  cases  dealing  with  21  C.F.R.  Section  1371.31.  It  appears 
that  as  far  as  the  Fifth  Circuit  is  concerned,  a  regulation  or 
federal  statute,  that  singles  out  the  Native  American  Church, 
whether  with  or  without  the  blood  quantum  (1/4)  requirement  will 
pass  constitutional  muster.  The  Peyote  Way  decision  relied 
primarily  on  the  historical  information  and  the  fact  that  all  of 
the  Native  American  Church  Chapters  had  maintained  a  blood  quantum 
limitation: 

During  his  tenure  as  NAC  National  Chairman, 
Emerson  Jackson  testified  that  the  NAC  is  made 
up  of  approximately  36  chapters,  each 
separately  incorporated  by  different  tribes 
and  that  all  NAC  members  are  of  25%  Native 
American  ancestry. 

Peyote  Way.  922  F.2d  at  1215. 

The  Smith  and  Pevote  Way  cases  when  read  together  indicate 
that  Congress  may  pass  legislation  for  the  benefit  of  the  Native 
American  Church,  specifically.  One  way  of  insuring  that  the 
legislation  is  passed  to  benefit  Indian  peyote  practitioners,  is  to 
include  the  degree  of  blood  (  1/4  or  more)  in  the  legislation, 
since  blood  quantum  is  rationally  related  to  membership  in  the 
Native  American  Church. 

The  Kiowa  and  Apache  Chapters  of  the  Native  American  Church 
have  always  adhered  to  a  blood  quantum  (  25%  or  more)  as  a 
prerequisite  for  membership.  The  strict  membership  furthers  the 
interests  of  the  NAC  by  insuring  that  abuse  will  not  occur.  The 
practice  of  sending  individuals  (1/4  or  more)  to  get  the  sacrament 
in  Texas,  has  worked  well  and  should  not  be  changed.  From  the 
cultural  standpoint,  the  NAC  and  its  blood  quantum  requirement 
encourages  the  preservation  of  language,  culture  and  religion  which 
is  the  cornerstone  of  this  religion.  Our  elders  can  attend  and 
not  have  to  worry  about  having  to  communicate  in  English,  as  it  is 
a  second  language  for  many.  Many  of  our  prayers  and  songs  are  in 
our  tribal  language  and  having  to  translate,  would  create  an 

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unacceptable  burden.  When  NAC  members  of  other  tribes  attend, 
they  are  aware  of  the  strict  requirements,  but  there  appears  to  be 
more  understanding  and  respect  for  the  practice  from  those  1/4  or 
more  blood  quantum. 

These  are  legitimate  concerns,  because  depending  on  how  the 
law  is  drafted,  these  practices  may  have  to  change.  It  is  not  our 
desire  to  change  these  practices,  because  the  practices  are  all  a 
part  of  a  centuries  old  religion  that  has  been  basically  unchanged, 
at  least  in  Southwest  Oklahoma. 

V.    LEGISLATION -SPECIFYING  -AN  -EXEMPTION  TO  THE  NATIVE  AMERICAN 
CHURCH  HILL  NOT  VIOLATE  THE  ESTABLISHMENT  CLAUSE. 

Recent  drafts  of  the  Senate  bill  suggest  that  limiting  the  law 
to  just  the  Native  American  Church  would  create  Establishment 
Clause  problems.  Testimony  taken  from  many  well  known  Native 
American  Church  practitioners,  during  oversight  hearings,  held 
before  the  Senate  Select  Committee  on  Indian  Affairs, 
overwhelmingly  suggests  that  an  exemption  designating  the  NAC  is 
the  preferred  choice.  Under  the  case  law,  it  currently  appears 
that  such  a  designation  is  legal  and  not  a  violation  of  the 
Establishment  clause. 

The  Fifth  Circuit  in  the  Pevote  Way  court  dealt  with  this 
issue  and  can  give  us  some  guidance.  The  court  began  its  analysis 
of  First  Amendment  law  by  observing  that  issues  of  this  kind  are 
generally  accorded  Equal  Protection  analysis.  The  court 
emphasized  that  based  upon  the  unique  guardian-ward  relationship 
between  the  Indian  tribes  and  the  United  States,  traditional 
notions  of  1st  Amendment  law  do  not  necessarily  apply.  Indeed, 
Smith  is  testament  to  that  notion.  The  Peyote  Way  court  in 
upholding  the  DEA  regulation,  21  C.F.R.  Section  1371.31 
(1990) ,  which  singles  out  the  Native  American  Church,  stated: 

While  the  exemption  facially  singles  out  one 
religion,  we  accept  the  government's 
explanation  that  this  was  done  because  the  NAC 
is  the  only  tribal  Native  American 
organization  of  which  the  government  is  aware 
that  uses  peyote  in  a  bona  fide  religious 
ceremonies.  We  know  of  no  evidence  to  the 
contrary.  Thus,  we  hold  that  the  NAC 
exemption  represents  the  government's 
protection  of  the  culture  of  quasi  sovereign 
Native  American  tribes  and  as  such,  does  not 
represent  an  establishment  of  religion  in 
contravention  of  the  First  Amendment. 

Peyote  Way.  922  F.2d  at  1217. 

Most  recently,  in  Rupert  v.  Director  of  United  States  Fish  and 
Wildlife.  957  F.2d.32  (1st  Cir.1992),  a  non-Indian  group  calling 
itself  an  all  race  church,  challenged  a  Fish  and  Wildlife 
regulation  that  limited  accessibility  to  eagle  feathers,  to  only 

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people  who  were  members  of  an  Indian  tribe.  The  plaintiffs  sued 
the  United  States  claiming  regulation  violated  the  Establishment 
Clause.  The  Second  Circuit  adopted  the  analysis  and  rationale 
previously  laid  in  Pevote  Way  and  found  the  regulation  to  be 
constitutional  because  the  government  was  not  only  protecting 
Indian  culture  and  traditions  but  protecting  a  dwindling  supply  of 
the  eagle  population. 

There  are  no  guarantees  that  lawsuits  will  be  any  less  by 
passage  of  a  statutory  exemption  but,  it  seems  to  be  quite  clear 
under  the  case  law,  that  if  the  government  wanted  to  pass 
legislation  that  singled  out  the  Native  American  Church.  It  could 
do  so.  It  also  seems  clear  that-  a  blood  quantum  could  be  used  if 
in  fact  it  is  rational  to  protect  and  preserve  the  culture  of  the 
Native  American  Church.  The  Pevote  Way  case,  is  good  law  and 
definitely  favors  the  Native  American  Church,  why  forsake  its 
holding?  The  only  real  unfortunate  reality  of  Peyote  Way,  is  that 
the  Native  American  Church  may  have  to  continue  to  be  involved  in 
litigation  in  order  to  protect  its  special  status,  a  reality 
certainly  to  be  exacerbated  by  the  proposed  bill. 

VI.  RECOMMENDATIONS 

1.  That  a  practical  assessment  be  done  on  any  legislative 
proposal  drafted  to  address  the  Smith  decision  to  determine  whether 
the  legislative  remedy  will  hinder  the  practices  of  the  Native 
American  Church. 

2.  If  a  state  is  said  to  have  both  civil  and  criminal 
jurisdiction  in  Indian  Country  pursuant  to  Public  Law  280, 
legislation  should  specifically  protect  NAC  members  in  those 
states.  A  "blanket"  law  is  not  appropriate  because  of  the  obvious 
distinctions  between  P.L.  280  and  non-P.L.  280  states.  Further,  a 
general  law  would  create  a  mechanism  for  formation  of  non-NAC 
religious  organizations  and  would  open  accessibility.  Such  broad 
language  would  create  problems  in  states  like  Oklahoma  where  P.L. 
280  has  no  application.  Specific  language  should  be  developed 
addressing  the  needs  of  non-P.L.  280  states. 

3.  Incorporate  into  federal  legislation,  the  specific  provisions 
of  Texas  law  or  incorporate  by  reference  the  language  thereof.  A 
more  restrictive  federal  law  relating  to  the  accessibility  of  the 
sacrament  will  help  to  maintain  the  tradition  and  culture 
heretofore  safeguarded  by  the  NAC  and  will  further  insure  that  the 
sacrament,  peyote,  stays  in  the  right  hands  for  bona  fide  religious 
practices  of  the  NAC. 

4.  Any  federal  law  relating  to  the  distribution,  use,  possession, 
and  transportation  should  be  codified  to  exempt  NAC  members  with 
25%  or  more  Indian  Blood  pursuant  to  the  holding  in  Peyote  Way 
Church  of  God  v.  Thornburo.  922  F.  2d  1210  (5th  Cir.  1991). 

5.  The  House  of  Representatives  are  urged  to  support  the 
initiatives  of  the  Kiowa  and  Apache  Chapters  of  the  Native  American 
Church  to  protect  the  holy  sacrement  from  becoming  extinct  as  would 

PAGE  8 


151 


the  religion  itself. 


VII.   CONCLUSION 


The  Kiowa  and  Apache  Chapters  of  the  Native  American  Church 
and  individual  members  of  other  chapters,  would  support  legislation 
that  would  favor  the  needs  of  the  Native  American  Church.  This 
should  include  legislation  that  specifically  excludes  from  criminal 
prosecution,  religious  use  of  peyote  by  members  of  the  Native 
American  Church  who  possess  at  least  1/4  Indian  blood.  A  federal 
law  that  would  .protect  the- sacrament,,  similar  to  the  Texas  law, 
would  be  acceptable.  As  mentioned  earlier  in  this  paper,  this  form 
of  legislation  has  already  been  upheld  in  the  Courts  and  would  go 
far  in  protecting  our  culture  and  religious  rights.  Legislation 
that  would  put  more  protections  for  individual  rights  than 
protection  for  our  traditional  Indian  church  is  not  acceptable  and 
will  lead  to  demise  of  the  Native  American  Church.  We  respectfully 
request  your  serious  consideration  of  our  views  and  rights  and 
strongly  urge  your  support  of  our  position. 


PAGE  9 


152 

Mr.  Richardson.  Thank  you  very  much. 

The  chair  recognizes  the  gentleman  from  Wyoming. 

Mr.  Thomas.  Thank  you,  Mr.  Chairman. 

Thank  you,  gentlemen,  for  your  testimony. 

Mr.  Dorsay,  the  purpose  and  the  focus  of  this  hearing,  of  course, 
is  on  Native  American  religious  rights.  Is  this  broader  than  that? 
Does  it  affect  other  religious  groups  as  well? 

Mr.  Dorsay.  Well,  I  think  that  was  really  the  only  advantage  of 
the  Smith  decision,  that  it  didn't  single  out  the  Native  American 
Church,  it  really  affects  every  minority  religion  in  the  country. 

Justice  Scalia  ruled  that  protection  of  religious  diversity  is  a  lux- 
ury that  we  cannot  afford  in  a  democratic  society  and  it  is  subject 
to  the  majority  will,  and  so  all  religions  are  subject  to  possible  dis- 
crimination, and  the  only  advantage  of  the  Smith  decision  is  that 
it  galvanized  activity  by,  I  think,  all  religious  groups  in  the  coun- 
try. 

Mr.  Thomas.  You  have  not  had  any  experience  with  other  reli- 
gious groups  specifically,  though? 

Mr.  Dorsay.  I  have  not,  no. 

Mr.  Thomas.  President  Long,  let  me  ask  you  this.  The  Drug  En- 
forcement Agency  has  apparently  handled  this  to  your  liking.  Is 
that  true? 

Mr.  Long.  Yes.  We  have  had  a  long-standing  working  relation- 
ship with  the  Drug  Enforcement  Agency.  Since  my  being  a  member 
and  an  officer  of  the  Native  American  Church  of  North  America 
since  1962,  since  that  time,  we  have  had  a  really  good  working  re- 
lationship with  the  Drug  Enforcement  Agency  and  the  United 
States  Customs  Service  in  our  crossing  the  border  from  the  United 
States  into  Canada,  and  also  we  have  a  good  working  relationship 
with  the  United  States  Justice  Department. 

In  1982,  when  I  was  the  president  of  the  Native  American 
Church  of  North  America  for  my  first  term,  the  Justice  Department 
is  the  one  that  suggested  to  us  that  if  we  would  fully  organize  the 
Native  American  Church  in  these  continental  United  States  that 
we  would  have  one  of  the  largest  Indian  religious  organizations, 
and  through  that  they  encouraged  us  to  make  an  amendment  to 
the  Controlled  Substances  Act  of  1970,  which  at  that  time  we  tried, 
but  as  you  know,  we  failed. 

Mr.  Thomas.  Not  all  of  your  250,000  members  are  involved  with 
the  use  of  this  particular  substance.  Isn't  that  true? 

Mr.  Long.  That  is  true.  That  is  a  low  estimate,  sir.  Of  the 
960,000  Native  Americans  that  are  registered  by  the  Bureau  of  In- 
dian Affairs,  there  are  more  than  250,000  of  us  that  partake  of  our 
sacrament,  peyote,  because  this  is  a  low  count,  and  we  have  several 
large  Native  American  Church  organizations  within  the  continental 
United  States,  such  as  Navajoland  and  Oklahoma  and  North  and 
South  Dakota,  sir. 

Mr.  Thomas.  So  you  are  suggesting  that  more  than  250,000  Na- 
tive Americans  use  this  substance? 

Mr.  Long.  Yes. 

When  we  went  to  take  a  census  of  our  membership,  we  did  not 
go  below  the  age  of  12  years,  and  I,  myself,  was  born  into  this  Na- 
tive American  Church  and  I  have  been  using  peyote  since  I  was 
nine  months  old. 


153 

Mr.  Thomas.  Really? 

President  Whitehorse,  I  assume  we  would  all  agree  that  if  this 
substance  is  available  for  religious  rights  and  uses  that  it  ought  to 
be  limited  to  that.  How  do  you  do  that?  What  do  you  do  within 
your  church,  for  example,  to  ensure  that  if  the  use  is  made  avail- 
able for  religious  purposes,  that  that  is  what  it  is  available  for  and 
only  used  for  that? 

Mr.  Whitehorse.  Yes,  thank  you  for  the  question. 

How  we  members  know  when  our  limit  is — that  is  your  question, 
sir? 

Mr.  Thomas.  Well,  it  seems  to  me,  if  you  are  requesting  the  use 
of  a  substance  that  is  otherwise  probably  illegal,  except  for  the  use 
in  your  historic  procedures  and  processes  and  religious  rites,  that 
you  have  some  responsibility  also  to  ensure  that  it  is  used  for  that 
purpose.  How  do  you  do  that? 

Mr.  Whitehorse.  Other  than  that  the  Indian  people  know  the 
uses  of  the  peyote,  if  we  know  that  the  sacrament  there  is  really 
not  for  only,  say,  healing  of  a  patient  but  you  know  that  it  will 
cover  other  areas,  like  praying  for  our  ancestors,  paying  for  our  vet- 
erans, elderly,  handicapped,  just  like  if  you  were  going  to  a  church, 
that  it  covers  a  lot  of  areas  for  the  good  family  standing.  Those  are 
some  of  the  examples  that  are  pointed  out  as  the  ones  covered 
when  we  get  into  the  circle  and  pray  throughout  the  nights. 

Mr.  Thomas.  I  see. 

Does  anyone  else  want  to  take  a  shot  at  that? 

Mr.  Long.  Yes,  sir. 

The  way  that  we  control  the  use  of  our  sacrament  in  the  Native 
American  Church  of  North  America  is  like,  for  instance,  in  the 
State  of  Wisconsin  we  have  one  buying  custodian.  The  Drug  En- 
forcement Agency  representative  who  was  here  this  morning  told 
us  and  verified  that  we  do  have  eight  custodian  persons  that  are 
able  to  harvest,  procure,  distribute,  and  sell  peyote  under  the  law 
in  the  State  of  Texas,  whereby  then  we  are  able  to  have  only  one 
custodian  from  the  State  of  Wisconsin  to  service  five  Native  Amer- 
ican Church  chapters  within  our  State. 

Also,  I  know  that  this  is  true  with  the  Native  American  Church 
of  North  America.  We  have  only  one  buying  custodian,  and  we  have 
authorization  permits  that  are  given  to  us  by  the  Texas  Depart- 
ment of  Public  Safety.  Those  are  the  only  authorization  permits 
that  we  can  give  to  one  of  our  members  to  make  a  journey  into  the 
Rio  Grande  Valley  to  approach  one  of  these  dealers  and  buy  peyote 
from  them,  and  then  we  can  transport  it  back  to  our  respective  res- 
ervations. 

Mr.  Thomas.  I  see.  Okay.  Thank  you  very  much. 

Yes,  sir. 

Mr.  Whitehorse.  Along  with  what  my  brother,  Douglas  Long, 
indicated,  the  90  chapters  that  we  have  within  the  four  corners  of 
the  Navajo  Tribe,  the  way  we  control  it  is  also  similar  to  what  my 
brother  indicated.  We  have  authorized  the  border  director  or  custo- 
dian which  is  established  with  Texas,  and  those  are  the  only  per- 
sons who  are  authorized  to  transport  the  peyote.  Also,  along  with 
it,  in  this  bill  that  is  now  before  the  subcommittee  here,  it  is  also 
identified  that  the  distributor  within  Texas  will  serve  the  Indian 
tribe,  not  elsewhere.  So  we  support  this. 


154 

Mr.  Thomas.  All  right.  Thank  you  very  much. 

Thank  you,  Mr.  Chairman. 

Mr.  Richardson.  Thank  you. 

I  would  like  to  ask  Mr.  Dorsay:  In  your  opinion,  if  the  current 
Federal  regulatory  exception  becomes  statutory  and,  therefore,  pre- 
cludes any  kind  of  Federal  prosecution,  could  NAC  members,  in 
your  judgment,  still  be  prosecuted  under  State  law,  or  would  the 
Federal  law  preempt  that  State  law? 

Mr.  Dorsay.  If  the  current  legislation  is  passed? 

Mr.  Richardson.  If  the  exception  becomes  statutory. 

Mr.  Dorsay.  If  the  current  exception  becomes  statutory? 

Mr.  Richardson.  Right,  if  we  pass  a  law. 

Mr.  Dorsay.  I  think  that  would  preempt  State  prosecutions — in 
my  opinion. 

[Additional  information  on  this  question  follows:] 

Supplement  to  Written  Testimony  of  Craig  Dorsay,  Esq. 

I  was  asked  a  question  by  Chairman  Richardson  which  requires 
farther  explanation.  Representative  Richardson  asked  me  whether 
it  would  be  sufficient  protection  for  Native  American  religious  prac- 
tices if  Congress  enacted  the  current  regulatory  exemption,  codified 
at  36  CFR  §307.31,  into  federal  statutory  law.  I  said  at  the  hearing 
that  I  believed  that  such  action  would  provide  national  protection 
for  the  Native  American  Church. 

Upon  review  of  the  actual  language  of  section  307.31,  I  am  not 
sure  that  my  statement  was  correct.  This  administrative  regulation 
says  only  that  the  listing  of  peyote  as  a  controlled  substance  in 
schedule  I  does  not  apply  to  the  non-drug  use  of  peyote  in  NAC 
ceremonies.  Since  most  states  tie  their  drug  proscription  laws  to 
the  federal  schedule,  a  federal  law  removing  NAC  religious  use  of 
peyote  from  schedule  I  will  automatically  transfer  to  each  state's 
law. 

It  will  not  however,  transfer  to  state  laws  which  have  not  tied 
criminality  of  specific  substances  to  the  federal  schedule.  In  these 
states  religious  use  of  peyote  would  still  be  illegal  under  state  law 
unless  that  state  provided  its  own  independent  exemption  for  the 
NAC.  Based  on  information  provided  by  the  State  during  the  Smith 
case  before  the  United  States  Supreme  Court,  there  were  at  that 
time  (1989)  six  states  which  either  did  not  list  peyote  as  schedule 
I  under  their  act  or  had  not  adopted  the  uniform  controlled  sub- 
stances act:  Alaska,  Maine,  Massachusetts,  Nevada,  Texas,  and 
Vermont. 

I  hope  this  clarifies  this  issue. 

Mr.  Richardson.  Okay. 

Now,  as  you  know,  before  the  Smith  decision,  the  Government 
needed  the  compelling  interest  to  take  away  its  religious  right. 
Now  the  test  is  that  the  statute  must  only  be  "rationally  related" 
to  the  Government  interest. 

In  your  judgment,  if  we  are  to  fix  this,  should  we  start  by  restor- 
ing the  compelling  Government  interest  test?  Would  this  be 
enough? 

Mr.  Dorsay.  I  do  not  believe  the  compelling  interest  test  would 
be  enough.  As  you  may  know,  from  the  Smith  decision,  Justice 
O'Connor,  who  joined  the  minority  in  dissenting  with  Justice  Scalia 


155 

on  the  overturning  of  the  test,  still  found  that  the  State  proscrip- 
tion of  peyote  would  be  upheld  under  the  compelling  interest  test, 
and  that  was  based  solely  on  the  legislative  judgment  in  making 
peyote  a  Class  1  Controlled  Substance.  So  I  think  you  need  to  go 
further  than  the  compelling  interest  test  and  make  a  specific  excep- 
tion for  peyote  for  the  Native  American  Church. 

Mr.  Richardson.  Thank  you. 

I  would  like  to  ask  a  few  questions  of  my  friends  from  the  Native 
American  Church.  These  are  mainly  just  factual  questions.  Regard- 
ing membership  in  the  Native  American  Church,  if  membership  is 
limited  to  those  with  a  quarter-quantum  blood,  blood  quantum  or 
tribal  membership,  does  the  tribal  membership  include  non-Feder- 
ally  recognized  tribes? 

Mr.  Long.  No.  It  only  includes  Federally  recognized  tribes. 

Mr.  Richardson.  Okay. 

Do  you  see  the  use  of  peyote  by  members  of  the  Native  American 
Church  the  same  as  Christians  who  use  wine  during  their  services? 

Mr.  Long.  Yes. 

Mr.  Richardson.  Do  each  of  you  consider  yourselves  members  of 
the  American  Religious  Freedom  Coalition? 

Mr.  Ware.  That  is  correct. 

Mr.  Whitehorse.  No. 

Mr.  Richardson.  No?  That  is  the  coalition  that  is  involved  in 
drafting  the  legislation.  Mr.  Whitehorse,  you  are  not  a  member? 

Mr.  Whitehorse.  No,  I'm  not  a  member  of  the  coalition,  but 

Mr.  Richardson.  But  you  support  the  legislation? 

Mr.  Whitehorse.  I  support  the  legislation  and  then  concur  with 
them. 

Mr.  Richardson.  Now,  some  have  suggested  that  peyote  use  be 
limited  to  a  quarter-blood  quantum.  In  your  judgment,  is  this  racial 
classification  a  problem  under  the  Equal  Protection  Clause?  Aren't 
Indians  generally  categorized  under  a  political  classification,  and 
are  we  treading  on  dangerous  ground  when  we  draw  these  kinds 
of  racial  distinctions? 

Mr.  Ware.  I  don't  think  so,  Mr.  Chairman.  There  are  a  long  line 
of  cases  since  Morton  v.  Mancari  that  have  held  that  if  Congress 
decides  to  pass  legislation  that  would  single  out  Indians,  that  as 
long  as  they  had  a  rational  basis  for  it,  that  it  could  be  done. 

Our  feeling  is  that  the  Native  American  Church  has  been  here 
for  a  long  time.  I  think  testimony  to  that  effect  has  been  estab- 
lished here.  It  has  also  been  established  that  the  DEA  themselves 
have  not  had  any  problems  with  the  Native  American  Church,  and, 
based  upon  that  and  based  upon  Morton  v.  Mancari,  a  case  came 
out  of  Texas  called  Peyote  Way  Church  of  God  that  has  upheld  sec- 
tion 1507.31  that  you  were  referring  to  in  the  DEA  regulations,  and 
I  might  add  that  that  particular  regulation  passed  both  the  First 
Amendment  and  the  Equal  Protection  arguments  that  were  pre- 
sented at  that  time. 

I  would  just  like  to  add  that  our  reason  for  wanting  the  one- 
quarter  in  it  is  basically  to  separate  possession,  use,  and  transpor- 
tation from  distribution.  Texas  has  a  separate  law  on  distribution. 
The  only  protection  that  we  have  is  the  Texas  law  that  is  in  effect 
right  now,  and  it  goes  to  help  us  to  at  least  have  something  in 
there  that  would  protect  our  membership,  protect  our  ability  to  re- 


156 

ceive  the  sacrament.  That  is  why  we  felt  like  the  Texas  law  ought 
to  be  codified  as  part  of  the  distribution  section  of  any  law  that 
would  be  drafted. 

Mr.  DORSAY.  And  I  would  concur  in  that  statement  also.  You  are 
much  stronger  when  you  base  the  protection  on  the  political  rela- 
tionship. There  is  a  half-blood-quantum  requirement  in  the  Indian 
Reorganization  Act,  and  that  was  upheld  in  one  case,  I  believe, 
United  States  v.  John  by  the  U.S.  Supreme  Court,  but  even  in  that 
case  they  tied  the  blood  quantum  to  the  political  relationship 
through  descendancy,  and  you  are  much  stronger  on  that  basis. 

Mr.  Richardson.  Well,  let  me  thank  this  panel.  It  has  been  a 
very  good,  substantive  panel,  and  I  appreciate  very  much  your 
traveling  to  appear  before  our  subcommittee.  Again,  our  thanks. 

Mr.  Richardson.  Our  third  panel  is:  Ms.  Karen  Atkinson,  Attor- 
ney at  Law,  Confederated  Salish  and  Kootenai  Tribes,  Pablo,  Mon- 
tana; the  Honorable  Richard  Hill,  Chairman  of  the  Oneida  Tribe  of 
Indians,  Wisconsin;  and  the  Honorable  Vernon  Masayesva,  Chair- 
man of  the  Hopi  Tribe,  who  I  understand  may  be  represented  by 
someone;  I  don't  see  the  chairman  here;  and  I  understand  Richard 
Hill  may  be  represented  by  somebody  else  also. 

Let  me  also  extend  the  same  welcome  as  I  have  to  all  the  panels. 
All  of  your  statements  are  inserted  in  the  record.  I  will  ask  you  to 
observe  the  five-minute  rule,  and  if  you  are  substituting  for  any- 
body, if  you  would  please  identify  yourselves  when  I  call  you  to  tes- 
tify. 

So  first  let  us  start  with  Ms.  Karen  Atkinson. 

Please  proceed,  Ms.  Atkinson. 

PANEL  CONSISTING  OF  KAREN  ATKINSON,  TRIBAL  ATTORNEY, 
CONFEDERATED  SALISH  AND  KOOTENAI  TRIBES,  PABLO, 
MT;  HON.  VERNON  MASAYESVA,  CHAHtMAN,  HOPI  TRIBE, 
KYKOTSMOVI,  AZ;  AND  MARK  A.  POWLESS,  TRD3AL  ADVO- 
CATE, ONEBDA  TRIBE  OF  ESfDIANS  OF  WISCONSttJ 

Statement  of  Karen  Atkinson,  Esq. 

Ms.  Atkinson.  Thank  you,  Mr.  Chairman.  I  would  like  to  thank 
you  for  the  opportunity  for  providing  this  testimony  today. 

I  am  going  to  talk  about  the  eagle  feather  permit  system  and 
how  that  permit  system  frustrates  Indian  religious  practices  be- 
cause of  the  cumbersome  nature  of  the  system  and  the  delays  in- 
volved in  obtaining  eagle  feathers  and  eagle  parts. 

Most  Indian  religious  practices  are  based  on  the  natural  environ- 
ment. For  many  Indian  people  to  practice  their  religions,  they  rely 
on  natural  substances  such  as  wildlife,  plants,  and  minerals.  These 
items  can  be  worn,  carried,  or  merely  present  in  a  religious  cere- 
mony. For  most  Indian  people,  the  eagle  feather  is  held  in  the  high- 
est regard  and  respect.  The  sacred  nature  of  eagle  feathers  is  deep- 
ly rooted  in  religious  beliefs.  The  eagle  feather  is  the  messenger  to 
the  spirit  world,  and  it  allows  Indians  to  communicate  with  their 
creator. 

These  Indian  religious  practices  and  the  use  of  eagle  feathers  are 
frustrated  by  current  laws  and  regulations  which  protect  the  bald 
and  golden  eagles.  In  1940,  Congress  passed  the  Eagle  Protection 
Act,  making  it  a  Federal  crime  to  use,  possess,  or  transport  eagle 


157 

feathers  or  eagle  parts.  In  1962,  Congress  amended  the  Eagle  Pro- 
tection Act  to  include  the  protection  of  gold  eagles  and  also  pro- 
vided for  religious  exemption  for  the  use  of  eagle  feathers  by  Indian 
people  in  religious  ceremonies. 

Pursuant  to  the  statutory  authority,  the  Department  of  the  Inte- 
rior has  issued  regulations  establishing  an  eagle  permit  system  to 
distribute  eagle  parts  to  Indian  practitioners  for  religious  uses. 
This  permit  system  is  administered  by  the  U.S.  Fish  and  Wildlife 
Service  in  its  seven  regional  offices  nationwide. 

The  permit  system  has  established  an  elaborate  application  proc- 
ess whereby  Indian  practitioners  can  obtain  eagle  feathers  for  reli- 
gious purposes  by  applying  with  the  U.S.  Fish  and  Wildlife  Service. 
To  obtain  eagle  feathers  to  use  in  religious  ceremonies,  Indian 
practitioners  must  fill  out  an  application  form.  This  form  requires 
them  to  identify  the  religious  ceremony  in  which  the  eagle  feathers 
are  going  to  be  used.  It  requires  them  to  attach  two  certifications. 
The  first  certification  is  from  the  Bureau  of  Indian  Affairs  which 
certifies  that  the  individual  is  indeed  an  enrolled  member  of  a 
tribe.  The  second  certification  is  from  a  traditional  religious  leader 
who  certifies  that  the  eagle  feathers  are  going  to  be  used  in  a  reli- 
gious ceremony. 

Once  the  applications  are  submitted  to  the  regional  offices,  they 
are  verified  by  the  regional  offices  and  then  transmitted  to  a  na- 
tional repository  which  is  located  in  Ashland,  Oregon.  The  reposi- 
tory stores  eagles  that  are  found  from  across  the  Nation.  The  repos- 
itory distributes  the  eagle  feathers  to  Indians  for  religious  purposes 
and  to  schools  and  institutions  for  educational  purposes. 

The  current  system  fills  the  applications  or  requests  for  eagle 
feathers  in  the  chronological  order  received.  Right  now,  there  is  ap- 
proximately a  2-year  delay  from  the  time  an  Indian  applies  and 
submits  his  form  to  the  time  that  eagle  feathers  are  actually  re- 
ceived. I  have  heard  of  instances  where  this  delay  can  be  up  to  3 
or  4  years  or  where  applications  are  simply  lost  in  the  system  and 
eagle  feathers  are  never  received. 

Currently,  there  is  no  method  or  procedure  to  expedite  requests 
if  there  is  a  need  for  eagle  feathers  immediately  or  a  ceremony 
needs  to  be  conducted  and  you  can't  wait  the  2  years  that  it  takes 
to  apply  for  the  system.  There  is  no  method  to  expedite  that  re- 
quest. This  is  simply  left  up  to  the  discretion  of  the  regional  offices. 

There  are  severe  criminal  and  civil  penalties  for  anyone  who  ob- 
tains or  uses  eagle  feathers  that  are  not  obtained  through  the  per- 
mit system  or  who  does  not  have  a  valid  permit.  A  lot  of  these 
delays  are  a  result  of  the  permit  system  being  low  on  the  priority 
list  by  the  Fish  and  Wildlife  Service.  The  number  of  employees  that 
administer  the  system  nationwide  is  very  small.  They  tend  to  be 
understaffed.  There  seem  to  be  problems  getting  eagles  that  are 
found  nationwide  to  the  repository  in  a  timely  manner.  This  proc- 
ess is  very  insensitive  to  the  needs  of  Native  Americans  who  rely 
on  eagle  feathers  for  their  ceremonies. 

Many  Native  Americans  find  it  very  humiliating  to  have  to  ask 
the  Federal  Government  for  these  objects  which  they  need  in  order 
to  practice  their  religion.  While  the  purpose  of  the  Bald  Eagle  Pro- 
tection Act  is  commendable  in  protecting  eagles  and  eagle  parts, 
Congress  didn't  fully  understand  the  impacts  it  would  have  on  In- 


68-366  -  93  -  6 


158 

dian  religious  practices.  This  elaborate  and  cumbersome  process  re- 
sults on  the  Indian  practitioners  due  to  the  amount  of  paperwork 
that  is  necessary  to  process  a  permit  and  due  to  the  delays  inher- 
ent in  the  system. 

Congress  has  already  attempted  to  accommodate  Indian  religious 
values  by  providing  for  a  statutory  exemption  in  the  Eagle  Protec- 
tion Act.  I  hope  that  Congress  takes  this  time  and  that  this  com- 
mittee takes  time  to  review  the  permit  process  and  to  look  at  ways 
to  provide  better  accommodation  for  Indian  religious  use  of  eagle 
feathers.  This  can  be  done  by  streamlining  the  current  permit  sys- 
tem to  reduce  the  amount  of  paperwork  that  is  necessary  to  process 
a  permit,  to  reduce  the  delays  in  giving  eagle  parts  and  eagle  feath- 
ers to  Indian  practitioners,  and  by  providing  tribal  input  into  the 
permit  process. 

To  provide  this  type  of  accommodation  would  assure  that  Indian 
people  can  continue  to  use  eagle  feathers  in  a  manner  which  they 
have  used  them  for  centuries. 

That  concludes  my  testimony.  Thank  you. 

[Prepared  statement  of  Ms.  Atkinson  including  exhibits  follows:] 


159 


Joseph  E.  Dupuis  •  Executive  Secretary 
Vem  L  Clairmont  •  Executive  Treasurer 
Bemice  Hewantom  -  Sergeant-at-Arms 


THE  CONFEDERATED  SALISH  AND  KOOTENAI  TRIBES 

OF  THE  FLATHEAD  NATION 

P.O.  Box  278 

Pablo,  Montana  59855 

(406)  675-2700 
FAX  (406)  675-2806 

Testimony  of  Karen  J.  Atkinson 

Tribal  Attorney 

Confederated  Salish  and  Kootenai  Tribes 

House  of  Representatives  Committee  on  Natural  Resources 
Subcommittee  on  Native  American  Affairs 


Religious  Freedom 
Oversight  Hearing 

March  16,  1993 
Washington,  D.C. 


TRIBAL  COUNCIL  MEMBERS 
Michael  T  "Mickey'  Pablo   Chairman 
Laurence  Kenmille  -  Vice  Chairman 
Elmer  "Sonny"  Mongeau.  Jr     Secretary 
Antotne  Tony'  Incashola  -  Treasurer 
Louis  Adams 
Uoyd  Irvine 
Patnck.  Letthand 
Henry  "Hank"  Baylor 
John  "Chris"  Lozeau 
D  Fred  Man 


Introduction 

Good  morning  Chairman  Richardson  and  members  of  the  Native  American  Sub- 
Committee.  My  name  is  Karen  Atkinson,  I  am  Mandan/Hidatsa/Tsimshian  and  an  attorney  for 
the  Confederated  Salish  and  Kootenai  Tribes.  I  represent  the  Salish  and  Kootenai  Culture 
Committees  on  cultural  and  religious  issues.  Thank  you  for  holding  this  hearing  on  the 
effectiveness  of  the  Indian  Religious  Freedom  Act,  and  for  the  opportunity  to  provide  this 
testimony.  I  wish  to  express  my  sincere  appreciation  to  the  Chairman  for  considering 
sponsoring  religious  freedom  legislation  and  to  Representative  Pat  Williams  for  considering 
co-sponsoring  legislation  to  protect  age-old  religious  practices. 

In  my  testimony  I  will  provide  a  legal  background  on  the  current  federal  laws  and 
regulations  which  protect  bald  and  golden  eagles,  and  the  current  administration  of  the  eagle 
feather  permit  system.  I  will  also  discuss  the  manner  in  which  the  current  administration  of  the 
eagle  feather  permit  system  interferes  with  the  free  exercise  of  religion  by  Indian  practitioners. 
Lastly,  1  will  address  the  need  for  a  law  which  reforms  and  streamlines  the  current  eagle  feather 
permit  system  and  which  is  more  sensitive  to  the  needs  of  Indian  religious  practitioners. 

Religious  Use  of  Eagle  Feathers  by  Indians 

Indian  traditional  religions  are  based  on  the  natural  environment.  Indian  practitioners  rely 
on  natural  substances  for  their  religious  observances.  Certain  wildlife,  plants  and  minerals- 
which  may  be  worn,  be  carried  or  simply  be  present-are  considered  sacred  and  fundamental  to 
religious  practices. 

For  most  Indian  people,  eagles  and  eagle  feathers  are  held  in  the  highest  regard  and 
respect.  The  eagle  represents  power  and  has  significant  meaning.  The  sacred  nature  of  eagles 
is  deeply  rooted  in  Indian  religious  beliefs.  In  many  traditional  practices,  the  eagle  serves  as  a 
messenger  to  the  spirit  world.  The  ceremonial  use  of  eagle  feathers  allows  the  living  to 
communicate  with  their  Creator.  Many  Indian  practitioners  believe  that  ceremonial  use  of  eagle 
feathers  can  bring  about  blessings  to  an  individual  and  his  family  and  can  provide  good  health 
and  a  positive  and  constructive  life. 


160 


Indian  religion  is  the  glue  which  binds  a  tribal  community  and  provides  for  its  well- 
being.  The  continuance  of  many  tribal  ceremonies  is  dependent  on  the  availability  of  eagles 
and  eagle  feathers.  Indian  people  who  practice  their  traditional  ways  must  have  the  freedom  to 
use  eagle  feathers  as  they  have  since  time  immemorial. 

Federal  Laws  Protecting  Eagles 

Currently,  there  are  three  federal  statutes  which  severely  impact  upon  Indian  religious 
use  of  bald  and  golden  eagle  feathers  and  eagle  parts  for  ceremonial  purposes,  they  are:  the 

Migratory  Bird  Treaty  Act  of  19 18,1  Protection  of  Bald  and  Golden  Eagles  Act,2  and  the 

Endangered  Species  Act  of  1973.3  While  these  laws  are  commendable  in  their  purpose  of 
protecting  various  wildlife  species.  Congress  did  not  adequately  consider  their  impact  on 
Indian  religious  practices  when  they  were  enacted. 

Migratory  Bird  Treaty  Act 

To  comply  with  international  treaty  obligations  and  in  response  to  declining  bird 
populations,  Congress  enacted  the  Migratory  Bird  Act  of  1918  ("MBTA").  MBTA  prohibits 
the  taking,  killing,  possession,  import,  export,  sale,  or  offer  for  sale  of  all  wild  birds 
commonly  found  in  the  United  States  except  the  house  sparrow,  starling,  rock  dove  or  pigeon, 

and  resident  game  birds  such  as  pheasant,  grouse,  quail,  wild  turkeys.4  The  MBTA 
provides  for  both  misdemeanor  and  felony  convictions.  Both  bald  and  golden  eagles  are 
protected  by  the  provisions  of  MBTA  pursuant  to  the  United  States-Mexico  Convention  of 

1936.5  There  are  no  statutory  exemptions  for  the  use  of  migratory  bird  feathers  by  Indians 
for  religious  purposes.  Certain  treaties  and  conventions,  however,  provide  exemptions  for 

subsistence  takings  of  migratory  birds  by  Alaska  natives.6 

Endangered  Species  Act  of  1973 

In  1973,  Congress  enacted  the  Endangered  Species  Act  which  established  a 
comprehensive  and  integrated  approach  to  preserve  species  listed  as  threatened  (species  likely 
to  become  endangered  in  the  near  future)  or  endangered  (species  which  are  in  danger  of 

becoming  extinct).7  The  Act  prohibits  the  "taking"  of  any  endangered  species.8  'Taking" 
is  broadly  defined  to  include  harass,  harm,  pursue,  hunt,  shoot,  wound,  kill,  trap,  capture, 

collect,  or  attempt  to  engage  in  such  conduct9  Presendy,  bald  eagles  in  all  but  five  of  the 

1  16  U.S.C.A.  §§  703-15  (1985  &  Supp.  1992). 

2  16  U.S.C.A.  §§  668-668d  (1985  &  Supp.  1992).  The  Bald  Eagle  Protection  Act  was  originally  passed  in 

1940.  In  1962  it  was  amended  to  include  golden  eagles  and  the  provision's  official  title  is  the  Protection  of  Bald  and 
Golden  Eagles. 

3  16  U.S.C.A.  §§  1531-1543  (1985  &  Supp.  1992). 

4  16  U.S.C.A.  §  703.  A  reference  list  of  migratory  birds  can  be  found  at  50  C.F.R.  §  10  (1991). 
Convention  for  the  Protection  of  Migratory  Birds  and  Game  Mammals,  Feb.  7,  1936,  United  States-Mexico, 

50  Stat  1311,  T.S.  No.  912. 

6  16  U.S.C.A.  §712(1985). 

7  16  U.S.C.A.  §  1532(6)  &  (20)  (1985). 

8  I&  at  §§  1531-1543  (1985  &  Supp.  1992). 

9  M.  at  §1532(14)(1985). 


161 


conterminous  United  States  are  listed  as  endangered.  In  Washington,  Oregon,  Minnesota, 

Wisconsin,  and  Michigan,  bald  eagles  are  listed  as  threatened.10  Golden  eagles,  however,  are 

not  listed  as  threatened  or  endangered.1  *  The  ESA  does  not  provide  for  any  exemption  for 
use  of  threatened  or  endangered  species  by  Indians  for  religious  purposes.  The  only  Indian 
exemption  provides  for  subsistence  takings  by  Indians,  Aleuts  or  Eskimos  who  are  Alaska 

Natives  residing  in  Alaska.12 

Protection  of  Bald  and  Golden  Eagles  Act 

Recognizing  that  the  bald  eagle  is  America's  symbol  of  "ideas  of  freedom"  and  that  the 
bald  eagle  has  special  significance  to  many  people.  Congress  enacted  the  Bald  Eagle  Protection 
Act  in  1940.  At  this  time,  the  decline  in  the  bald  eagle  population  was  drastic  in  many  areas. 
For  many  decades  prior  to  1940,  the  bald  eagle  population  decreased  in  numbers  largely  due  to 
drastic  habitat  changes  as  human  population  increased  and  due  to  human  induced  mortality, 
including,  bounties  on  eagle  carcasses  and  legs,  defense  of  livestock  and  agriculture,  and 
industrial  chemicals.  A  significant  contributor  to  the  decline  of  the  bald  eagle  population  was 
the  use  of  man-made  chemicals  and  pollutants-especially  DDT-which  increased  susceptibility 
to  death  and  diminished  reproductive  success.  Bans  on  the  use  of  DDT  in  the  United  States 

have  resulted  in  fewer  deaths  attributable  to  this  chemical. 13 

In  1962,  Congress  amended  the  Bald  Eagle  Protection  Act  to  include  golden  eagles.  This 
is  largely  because  golden  eagles  are  difficult  to  distinguish  from  juvenile  bald  eagles  and 
because  their  populations  were  declining.  Accordingly,  Congress  changed  the  official  title  of 
the  act  to  the  Protection  of  Bald  and  Golden  Eagles.  This  statute  makes  it  a  federal  crime  to 
take,  possess,  sell,  purchase,  barter,  offer  to  sell,  purchase,  or  barter,  transport,  export,  or 

import  bald  or  golden  eagles,  or  any  part,  nest,  or  egg  of  an  eagle.14  The  statute  establishes 
severe  criminal  and  civil  penalties  for  any  one  who  violates  any  permit  or  regulation  issued 
thereunder.  Criminal  penalties  under  the  statue  are  a  $5,000  fine  and/or  imprisonment  of  not 
more  than  one  year,  for  a  subsequent  violation  the  fine  is  $10,000  and/or  imprisonment  of  not 

more  than  two  years.15  In  addition,  due  to  the  continued  killing  of  eagles  by  ranchers  and 
farmers.  Congress  established  a  penalty  to  cancel  grazing  leases  on  Federal  lands  for  anyone 

convicted  for  violating  the  provisions  of  this  statute.16 

The  statute  provides  an  exception  for  the  taking,  possessing  and  using  of  the  bald  and 
golden  eagle  for  scientific  purposes,  exhibition  purposes,  and  for  the  religious  purposes  of 

Indian  tribes  when  it  is  compatible  with  the  preservation  of  the  bald  and  golden  eagle.17 
Pursuant  to  statutory  authority,  the  Secretary  of  the  Interior  promulgated  regulations  which 
create  a  permit  process  for  obtaining  eagle  parts  and  feathers  for  these  specific  purposes. 


10 


59C.F.R.  §  17.11  (1991). 


11  Id. 

12  16  U.S.C.A.  §  1539(e)  (1985  &  Supp.  1992).  This  exemption  is  subject  to  the  determination  by  the  Secretary 
of  Interior  that  such  subsistence  takings  do  not  materially  and  negatively  affect  the  threatened  or  endangered  species. 

13  See  Generally.  Handbook  of  North  American  Birds.  Vol.  4.  pp.  226-228,  (R.  Palmer  ed.  1988). 

14  16  U.S.C.A.  §  668(a)  (1985  &  Supp.  1992). 

15  Id. 

16  LL  at  §  668(c). 

17  Id-  at  §  668a.  These  exceptions  were  included  in  the  1962  amendments  to  the  Bald  Eagle  Protection  Act. 


162 

Eagle  Permit  Regulations 


Administration 


The  law  enforcement  branch  of  the  U.S.  Fish  and  Wildlife  Service  (hereinafter  "the 
Service")  administers  the  eagle  permit  system  pursuant  to  regulations  implemented  by  the 

Secretary  of  Interior. 18  The  Service's  law  enforcement  division  is  divided  into  seven  regions 
nation-wide.  The  eagle  permit  system  is  administered  at  the  regional  level  by  the  Assistant 
Regional  Director  of  each  law  enforcement  district.  Although  there  are  seven  separate  law 
enforcement  districts,  there  is  only  one  repository  for  salvaged  eagles,  parts  and  feathers.  The 
National  Repository,  located  in  Ashland,  Oregon,  serves  Indians  throughout  the  United  States. 
Eagles,  parts  and  feathers  are  acquired  by  the  Service  in  connection  with  law  enforcement  and 
other  official  activities  nation-wide  and  are  sent  to  the  repository  for  distribution  to  Indians  for 
religious  purposes  and  to  schools  for  educational  purposes  through  the  permit  process. 

Although  the  perception  of  many  people  is  that  decline  in  the  eagle  population  was 
caused  by  Indians'  use  and  killing  of  live  eagles,  most  traditional  practitioners  use  eagle  parts 
and  feathers  from  dead  eagles.  The  vast  majority  of  eagles  and  eagle  parts  obtained  by  Indians 
from  the  Service  are  from  dead  birds  that  have  been  salvaged  from  across  the  nation. 
Currently,  the  major  cause  of  death  for  eagles  is  electrocution  from  power  lines.  Eagles  are 
generally  not  harvested  or  killed  to  fulfill  the  demand  for  Indian  religious  purposes.  The  one 
exception  of  which  I  am  aware  is  the  Hopi  Tribe,  who  has  a  permit  directly  from  the  Secretary 

of  the  Interior  to  take  twelve  golden  eaglets  for  ceremonial  purposes. 19  The  Hopi  must  apply 
for  this  permit  every  year. 

The  Application  Process 

The  regulations  establish  a  intricate  and  complicated  application  procedure  by  which 
Indians  can  acquire  bald  and  golden  eagles  or  parts  for  use  in  religious  ceremonies.  Indian 
practitioners  are  required  to  fill  out  an  application  form  with  their  regional  Service  office  to 

obtain  bald  or  golden  eagle  parts  or  feathers  for  use  in  religious  ceremonies/"  Applicants 
must  be  a  member  of  a  federally  recognized  tribe.  This  status  must  be  certified  by  a 
representative  of  the  Bureau  of  Indian  Affairs.  In  addition,  the  applicant  is  required  to  identify 
the  ceremony  in  which  the  feathers  are  going  to  be  used,  and  a  duly  authorized  official  of  the 
tribal  religious  group  must  certify  that  the  applicant  is  authorized  to  participate  in  tribal 
ceremonies. 

On  the  application  form,  the  applicant  must  specify  the  species  of  the  eagle  and  the 
number  of  parts  requested.  At  most,  an  applicant  may  request  only  one  eagle  or  the  equivalent 
of  one  eagle  per  order  and  may  submit  only  one  order  at  a  time.  The  application  packet  for 

Region  two  informs  the  applicant  that  it  will  take  up  to  two  years  to  fill  the  request,''1 

The  regulations  governing  the  issuance  of  permits  to  Indians  for  the  possession  of  eagle 


18  The  regulations  are  codified  at  50  C.F.R.  §  22.21  (1991).  Much  of  the  information  on  the  administration  of 
the  eagle  permit  system  was  obtained  through  interviews  with  Service  personnel  from  the  Assistant  Regional 
Director's  Offices  from  Region  two  and  six. 

19  This  information  was  provided  by  Region  two.  Assisiant  Regional  Director  Law  Enforcement 

20  Copies  of  the  application  form  and  guidelines  from  Region  two  and  six  are  attached  as  Exhibit  "A". 

21  See  also  Exhibit  "B."  Acknowledgement  letter  from  the  Service  notifying  the  applicant  of  the  24-month 
delay. 


163 


feathers  for  religious  purposes  provide  the  permits  will  be  granted  upon  a  showing  of  the 
following: 

(1)  Species  and  number  of  eagles  or  feathers  proposed  to  be  taken,  or  acquired  by  gift 
or  inheritance. 

(2)  State  and  local  area  where  the  taking  is  proposed  to  be  done,  or  from  whom 
acquired. 

(3)  Name  of  tribe  with  which  applicant  is  associated. 

(4)  Name  of  tribal  religious  ceremony(ies)  for  which  required. 

(5)  Applicant  must  attach  a  certification  from  the  Bureau  of  Indian  Affairs  that  the 
applicant  is  an  Indian. 

(6)  Applicant  must  attach  a  certification  from  a  duly  authorized  official  of  the  religious 
group  that  the  applicant  is  authorized  to  participate  in  such  ceremonies.22 

The  regulations  further  provide  that  a  permit  shall  not  be  granted  until  an  investigation 
has  been  conducted  and  it  is  determined  that  the  taking,  possession  and  transportation  is 
compatible  with  the  preservation  of  the  bald  or  golden  eagle.  In  making  this  determination,  the 
following  are  considered: 

(1)  The  direct  or  indirect  effect  which  issuing  such  permit  would  be  likely  to  have  upon 
the  wild  populations  of  bald  or  golden  eagles;  and 

(2)  Whether  the  applicant  is  an  Indian  who  is  authorized  to  participate  in  bona  fide  tribal 
religious  ceremonies.23 

Applicants  are  also  required  to  provide  a  home  and  work  phone  number  or  a  list  of 
phone  numbers  where  they  can  be  reached  in  approximately  two  years,  so  their  addresses  can 
be  verified  before  their  eagle  parts  or  feathers  can  be  shipped  to  them  from  the  repository.  If 
the  repository  is  unable  to  contact  the  applicant  to  verify  the  mailing  address  at  the  time  the 
eagle  parts  are  ready  to  be  shipped,  the  applicant's  request  will  be  placed  on  inactive  status  and 
considered  abandoned.  Each  time  eagle  parts  or  feathers  are  needed  for  a  ceremony,  an  Indian 
practitioner  must  re-apply  to  obtain  the  necessary  parts  and  permits. 

Delays 

When  Indian  practitioners  apply  for  eagle  parts  or  feathers  from  the  federal  government, 
they  are  told  that  they  will  have  to  wait  at  least  two  years  before  their  request  is  shipped.  There 
is  approximately  a  1500  person  waiting  list  for  applicants  who  meet  the  issuance  criteria.  All 
requests  are  filled  in  the  chronological  order  received.  There  is  no  special  procedure  for 
expediting  requests  when  a  ceremony  must  be  conducted  immediately.  Often,  the  eagle  parts 
or  eagle  feathers  shipped  to  applicants  are  not  in  very  good  physical  shape  and  are  considered 
"impure"  because  of  all  the  handling  they  have  received.  If  an  Indian  practitioner  is  required  by 
his  religious  beliefs  to  conduct  a  specific  ceremony  that  requires  the  use  of  eagle  feathers,  he 
must  wait  two  years  until  he  has  received  eagle  feathers  through  the  permit  process.    An  Indian 
who  obtains  and  uses  eagle  feathers  by  other  means  runs  the  risk  of  severe  criminal  or  civil 

22  50C.F.R.  §  22.22(a)(l)-(6)  (1991). 

23  Id.  at  22.22(c)(1)  &  (2). 


164 


penalties.  For  many  tribes,  the  eagle  enjoys  such  an  exhalted  status  in  its  religious  practices 
that  any  regulatory  process  which  limits  the  access  to  eagle  parts  or  feathers  has  a  profound 
effect  on  the  exercise  of  their  religious  beliefs. 

Supply  Problems 

Presently,  the  requests  for  eagle  parts  and  feathers  clearly  outnumber  the  amount  on 
hand  at  the  repository.  Part  of  the  supply  problem,  however,  is  created  by  lack  of  Service  law 
enforcement  agents  in  the  field  nation-wide.  According  to  the  staff  at  Region  six,  there  are 
only  two  Service  law  enforcement  agents  in  each  state  who,  among  many  other  official  duties, 
have  the  responsibility  of  picking  up  dead  eagles  when  they  are  discovered  and  sending  them  to 
the  repository.  Such  understaffing  results  in  eagles  not  being  picked  up  and  sent  to  the 
repository  in  a  timely  manner.  In  one  instance,  the  Salish  and  Kootenai  Tribes  notified  one  of 
the  Montana  agents  of  two  dead  eagles  that  were  found  on  the  Flathead  Indian  Reservation,  it 
took  almost  two  years  for  the  agent  to  pick  them  up  and  send  them  to  the  repository-during 
this  time  there  were  numerous  Salish  and  Kootenai  applicants  requesting  eagle  parts  pending  in 
the  regional  office. 

The  supply  of  eagle  parts  or  feathers  could  be  increased  by  educating  state  game 
wardens,  wildlife  refuge  managers,  and  law  enforcement  agents  on  the  provisions  of  the  Eagle 
Protection  Act.  The  Service  could  also  prioritize  the  tagging  and  picking  up  of  eagles  by 
placing  a  time  limit  on  the  agents  in  which  they  have  to  respond  to  someone  who  has 
discovered  a  dead  eagle. 

Regional  Discretion 

Though  each  region  is  under  the  same  federal  directives,  there  does  seem  to  b    room  for 
a  certain  amount  of  regional  discretion.  There  was  a  disparity  among  the  two  regions  I 
interviewed,  in  how  much  flexibility  is  given  to  special  requests  made  by  Indian  individuals  or 
requests  to  expedite  the  process  for  a  specific  ceremony  that  needed  to  take  place  immediately. 
These  types  of  requests  seem  to  be  evaluated  on  a  case-by-case  basis  by  the  Assistant  Regional 
Director  without  tribal  input.  Depending  on  the  circumstances,  the  Assistant  Regional  Director 
may  allow  a  request  to  be  expedited.  In  addition,  at  one  time  in  Region  two,  there  was  an 
informal  policy  to  allow  tribes  to  keep  and  distribute  dead  eagles  found  on  their  own 
reservation  to  tribal  members  who  had  applications  pending. 

Permits  for  Educational  and  Other  Uses 

There  are  two  different  application  procedures  depending  on  whether  the  request  is  for 
religious  purposes  or  for  scientific  and  educational  purposes.  There  is  no  standard  application 
form  used  for  educational  requests  similar  to  the  application  used  for  Indian  religious  requests. 
Both  Region  two  and  six  require  only  a  written  statement  of  justification  by  applicants  for 

educational  and  scientific  requests.24  In  some  instances,  eagles  found  in  the  field  are  simply 
turned  over  to  educational  institutions  and  an  application  for  educational  use  is  submitted  after- 
the-fact,  completely  by-passing  the  lengthy  delay  involved  in  having  the  application  filled  by 
the  national  repository.  Most  requests  from  schools  are  for  whole  eagles  which  can  be 
mounted  and  put  on  display. 

Distribution  Problems 

A  major  distribution  problem  exists  at  the  national  repository.  There  is  only  one  Service 


24  Application  requirements  listed  in  50  C.F.R.  §  22.21. 


165 


employee  staffed  at  the  repository.  He  is  responsible  for  receiving  all  of  the  eagle  parts  and 
feathers  discovered  nation-wide,  filling  all  of  the  requests  as  they  are  sent  to  him  by  each  of  the 
seven  regional  offices,  preparing  the  eagle  parts  and  feathers  for  each  individual  request,  and 
verifying  the  mailing  address  of  each  applicant  when  the  request  is  ready  to  ship.  If,  after  two 
years  or  longer,  the  repository  employee  cannot  reach  the  applicant  by  phone  or  mail  to  arrange 
delivery,  the  application  is  considered  abandoned. 

Once  eagle  parts  or  feathers  are  ready  to  be  shipped,  the  repository  employee  must  call 
the  applicant  to  arrange  a  delivery  point.  The  applicant  pays  for  all  shipping  costs.  The 
applicant  receives  a  temporary  permit  with  the  eagle  parts  or  feathers  shipped  from  the 
repository.  The  applicant  is  then  required  to  return  another  form  to  the  Service  in  order  to 
receive  a  final  permit.  Failure  to  do  so  could  result  in  action  by  the  Service  to  recover  the  eagle 

parts  or  feathers.25 

Education 

The  personnel  who  administer  the  permit  system  lack  general  information  on  the  tribes 
within  their  region.  After  thirty  years  of  administering  the  permit  system,  the  regions  do  not 
seem  to  have  developed  any  regular  working  relationships  with  tribes  in  attempting  to  expedite 
the  process  or  to  request  tribal  input  on  how  the  process  can  be  improved. 

Need  to  Reform  the  Permit  System 

At  best,  the  permit  process  for  Indian  religious  uses  can  be  described  as  cumbersome 
and  insensitive  to  the  needs  of  Indian  practitioners,  at  worst,  as  one  federal  court  found  the 
"federal  administrative  apparatus  erected  to  accommodate  Indian  religious  needs  is  utterly 

offensive  and  ultimately  ineffectual."26  For  many  Indian  people  it  is  unthinkable  that  they 
need  to  obtain  a  federal  permit  to  use  an  eagle  feather  in  a  religious  ceremony  that  has  been 
practiced  since  time  immemorial.  Many  Indian  practitioners  have  described  the  permit  process 
as  "humiliating,"  and  view  it  as  having  to  obtain  permission  from  the  federal  government  to 
continue  to  practice  their  age-old  religions. 

In  enacting  the  regulations,  the  Department  of  Interior  attempted  to  develop  an 
administrative  system  to  accommodate  Indian  religious  practices.  In  establishing  such  a 
complex  system,  the  Department  has  unknowingly  infringed  on  the  religious  rights  of  Indians. 
The  complicated  and  intricate  permit  system  intrudes  on  Indian  religious  beliefs  and  practices. 
The  system  requires  Indians  to  identify  ceremonies  to  a  federal  agency  that  are  generally 
regarded  as  very  personal  and  usually  not  revealed  to  anyone.  In  addition,  it  subjects  these 
ceremonies  and  the  religious  leader  who  must  "certify"  that  the  applicant  requires  an  eagle 
feather  to  participate  in  tribal  ceremonies  to  scrutiny  by  federal  employees  and  it  causes  lengthy 
delays  in  the  time  it  takes  to  obtain  eagle  parts  or  feathers  from  the  repository. 

There  is  clearly  a  need  to  reform  this  permit  system  to  better  accommodate  Indian 
religious  practices.  Congress  has  already  established  precedent  for  accommodating  Indian 
religious  practices  in  this  area  by  providing  for  a  statutory  exemption  for  the  use  of  eagle  parts 
or  feathers  by  Indian  practitioners  in  the  Eagle  Protection  Act  This  exemption  permits  the 

25  See  Exhibit  "C". 

26  United  Stales  v.  Ahevta.  632  F.Supp.  1301,  1307  (D.N.M.  1986).  In  this  decision  the  court  held  a 
prosecution  for  possession  of  a  golden  eagle  without  a  permit  was  barred  because  the  taking  of  a  golden  eagle  solely 
for  religious  purposes,  by  an  Isleta  Pueblo  member,  on  aboriginal  lands  was  a  lawful  and  protected  liberty  under  the 
Treaty  of  Guadalupe  Hidalgo  and  by  the  first  amendment  to  the  United  Stales  Constitution. 


166 


Secretary  of  Interior  to  establish  regulations  which  authorize  the  taking,  possession  and 
transportation  of  eagle  feathers  for  the  religious  purposes  of  tribes.  In  addition,  the  American 
Indian  Religious  Freedom  Act  of  1978  established  a  United  States  policy  to  protect  and 
preserve  Native  American  religious  freedom.  Section  1  of  this  Act  provides: 

Henceforth  it  shall  be  the  policy  of  the  United  States  to  protect 
and  preserve  for  American  Indians  their  inherent  right  of 
freedom  to  believe,  express,  and  exercise  the  traditional  religions 
of  the  American  Indian,  Eskimo,  Aleut,  and  Native  Hawaiians, 
including  but  not  limited  to  access  to  sites,  use  and  possession 
of  sacred  objects,  and  the  freedom  to  worship  through 
ceremonials  and  traditional  rites. 

Section  2  of  this  Act  required  a  review  and  report  to  Congress  of  all  federal  practices 
interfering  with  Indian  religious  freedom  along  with  recommendations  for  administrative  and 
legislative  change  necessary  to  protect  and  preserve  Indian  religious  cultural  rights  and 
practices.  In  this  report  to  Congress,  522  incidents  of  infringements  upon  Indian  religious 
freedom  were  documented,  1 1  recommendations  for  administrative  changes  were  made,  5 
legislative  proposals  were  made  (none  of  which  were  ever  acted  upon  by  the  Executive  Branch 

or  by  Congress).27 

In  1979  when  this  report  was  made  to  Congress,  the  above-described  problems  with  the 
eagle  feather  permit  system  were  not  documented  by  the  task  force.  Since  this  time,  however, 
the  permit  system  for  Indian  religious  use  has  become  unworkable  and  the  effect  on  Indian 
religious  practices  has  become  intolerable. 

Congress  should  take  this  opportunity  to  reform  and  streamline  the  current  permit 
system  to  better  accommodate  Indian  religious  practices.  Congress  can  accomplish  this  by 
establishing  a  procedure  to  reduce  the  "red  tape"  necessary  to  obtain  a  permit,  to  reduce  the 
lengthy  delays  which  result  in  hardship  on  Indian  practitioners,  to  establish  a  mechanism  to 
allow  more  tribal  input  into  the  application  process,  and  to  provide  for  tribal  management  of  the 
permit  system  on  Indian  lands. 

Conclusion 

The  Eagle  Protection  Act  was  designed  to  conserve  a  species,  however,  when  it  was 
enacted,  the  impact  it  would  have  on  traditional  religious  practices  was  not  fully  understood. 
The  lack  of  a  simple,  workable,  consistent  policy  regarding  Indian  use  of  eagle  parts  and 
feathers  for  religious  purposes  has  resulted  in  the  infringement  on  Indian  religious  practices. 

Now  is  the  time  for  Congress  to  act  to  accommodate  traditional  religious  use  of  eagle  feathers 
so  Indians  like-all  Americans-can  practice  their  religion  freely. 

Respectfully  submitted, 

.^ '. ' '  '■"■ ..■ 


Karen  J.  Atkinson 

Tribal  Attorney 

Confederated  Salish  and  Kootenai  Tribes 


27  American  Indian  Relif  inus  Freedom  Act  Report.  PI.  9?-341.  Federal  Agencies  Task  Force,  (U.S.  Dept  Int., 
August  1979)  pp.  62-63.  71.  72,  81. 

8 


167 


United  States  Department  of  the  Interior 

Fish  and  Wildlife  Service 
Division  of  L-iw  Enforcement 


HOW  TO  OBTAIN  EAGLES.  FEATHERS  OR  PARTS  FOR  RELIGIOUS  USE 

The  Federal  law  protecting  bald  and  golden  eagles  makes  provision  for  the  use 
of  easies,  feathers  and  parts  bv  Native  Americans  for  religious  purposes.    This 
law  is"  administered  by  the  U.S.  Fish  and  Wildlife  Service."  This  agency  acquires 
eagies  and  parts  in  connection  with  law  enforcement  and  other  official  activities 
and  these  items  are  provided  to  Native  Americans  for  religious  use  under  a 
valid  Federal  Fish  and  Wildlife  Permit. 

Application  for  a  permit  to  acquire  eagies  and  parts  for  religious  use  may  be 
made  by  completing  the  attached  Federal  Fish  and  Wildlife  License,  Permit 
application  form.    In  addition  to  this  permit  application  form,  you  must  also 
provide  the  information  requested  on  the  enclosed  forms  entitled  Certification 
of  Enrollment  and  Participation  AND  Request  to  Receive  Eagle  Feather;  for 
Use  in  Religious  Ceremonvfies). 

Return  the  completed  forms  to: 

United  States  Fish  and  Wildlife  Service 
.  Assistant  Regional  Director 
Law  Enforcement,  MS-69400 
P.O.  Box  25486,  Denver  Federal  Center 
Denver  CO  80225 


Please  keep  in  mind  that  the  National  Eagle  Repository  in  Ashland.  Oregon 
serves  Native  Americans  throughout  the  entire  50  states.    Due  to  the  number  of 
reauests  for  eagles  and  parts,  each  reauest  is  LIMITED  TO  ONE  (1) 'EAGLE 
OR  THE  EQUIVALENT  OF  ONE  (1)  EAGLE.    Please  note  that  you  may  only 
have  one  authorized  request  pending  at  one  time.    Shipments  from  the 
Repository  are  made  according  to  the  date  the  application  is  received,  so 
applicants'  are  encouraged  to  return  the  completed  forms  as  soon  as  possible. 
In  addition,  please  keep  us  advised  of  any  address  or  phone  number  changes  in 
order  to  avoid  delay  in  processing  your  request. 

Copies  of  the  Bald  Eagle  Protection  Act  and  Federal  regulations  concerning 
permit  procedures  (50  "CFR  Pans  13  and  22)  are  enclosed  for  your  information. 

For  further  information  or  assistance,  contact  the  Assistant  Regional  Director 
for  Law  Enforcement  at  the  above  address. 


168 


LUCE', 

United  States  Department  of  the  Interior  um\ 

FISH  AND  WILDLIFE  SERVICE  "" 


MA1WC  ADDRESS:  STREET  LOCATION 

Pott  Oifot  Bai  2HK 
haiar  Ftdtnl  Ctnttr 
IN  REPLY  REFER  TO:  Onwr.  Cobxwlo    S022S 


D**utr  Ftdml  C*u*r 


October  9,  1991 


REGION  6  INFORMATION  SHEET 
FEATHERS  AND  FEDERAL  LAW 


This  information  sheet  is  designed  to  answer  the  most  frequently 
Isked  questions  concerning  Federal  laws  regulating  co^ercxa 
traffic  in  items  made  from  the  feathers  and  parts  of  certain 
federally  protected  birds.  It  is  especially  directed  at  persons 
engaged  in*  the  sale,  trade,  or  barter  of  £  eathered  njmart 
objects,  artifacts,  antiques,  curios,  and  other  goods  fro„ f trading 
posts,  curio  shops,  antique  shops,  pawn  shops,  and  other  retail 
outlets. 
What  species  of  birds  are  protected  bv  Federal  law? 

The  Migratory  Bird  Treaty  Act  offers  protection  to  all  wild  birds 
Sun2  S«Sy  in  the  United  States,  except  the  ^ouje  -Pjrro-s 
starling;  feral  pigeon;  and  resident  game  birds  such  as  pheasant, 
gro"use?9quail,  wild  turkeys,  etc.  Resident  ««  *^™£T23 
by  the  separate  states,  and  may  be  taken  and  their  feathers  and 
plrts  utilized  as  prescribed  by  State  law.  A  reference  hst 
mioratory  birds  can  be  found  in  Title  50,  Code  of  Federal 
£g"at£ns.  Part  10.  The  Bald  Eagle  l™^™*?*^**1 
additional  protection  to  all  bald  and  golden  eagles.  Additionally, 
tome  Secies  of  migratory  birds  are  provided  further  protection  by 
the  Endangered  Species  Act  of  1973. 

What  activities  do  these  laws  prohibit? 

The  Migratory  Bird  Treaty  Act  makes  it  unlawful  for  anyone  to  kill, 
capture"  collect,  possess,  buy,  sell,  trade,  ship,  import  or  export 
any  migratory  bird,  including  fathers,  parts,  nests  or  eggs, 
unless  9the  person  first  obtains  an  appropriate  *.f ^  JJ™^ 
compliance  with  Federal  regulations  on  migratory  birds  j ™J  «  JFR 
Part  21).  The  Bald  Eagle  Protection  Act  likewise  prohibits  all 
commercial  activities  including  import  and  export,  involving  bald 
or  golden  eagles,  their  feathers,  parts  and  products. 

Some  migratory  game  birds-may  be  lawfully  hun^  during  specif ied 
periods  but  may  not  be  sold.  Annually  published  ^f*™*  l^^* 
hunting  regulations  impose  limits  on  the  number  and  k^*0*^^ 
that  can  be  taken,  and  control  the  manner,  means  and  op«n  seasons 
within  which  such  taking  is  lawful.  Be  advised  ^r  ^e 
Migratory  Bird  Treaty  Act,  states  may  impose  more  restrictive 
regulations  than  the  Federal  government. 


169 


What  types  of  traditional  Indian  curios  and  artifacts  are  affected 
by  these  prohibitions? 

Any  Indian  curios  or  artifacts  that  are  made  of  or  decorated  with 
migratory  bird  feathers  are  included  within  these  prohibitions. 
Among  the  more  common  articles  decorated  with  feathers  or  parts  of 
birds,  but  by  no  means  all  such  items,  are:  headdresses,  bonnets, 
hats,  fans,  pipes,  necklaces,  Kachina  dolls,  lances,  bustles, 
musical  instruments,  and  various  articles  of  clothing. 

Why  does  the  Federal  government  prohibit  commercial  traffic  in  the 
feathers  and  parts  of  eagles  and  migratory  birds? 

Because  migratory  birds  cross  international  boundaries  in  many 
cases,  they  are  considered  an  international  resource  that  must  be 
protected  from  commercial  exploitation.  The  Migratory  Bird  Treaty 
Act,  passed  in  1918  and  subsequently  amended,  implements  treaties 
for  the  protection  for  migratory  species  signed  with  Great  Britain 
(for  Canada),  Mexico,  Russia  and  Japan.  The  Bald  Eagle  Protection 
Act  was  passed  in  1940  to  protect  our  national  bird,  which  at  the 
time  was  rapidly  declining  in  numbers.  The  golden  eagle  was  given 
protection  under  the  Bald  Eagle  Protection  Act  in  1962.  In  1972, 
an  amendment  to  the  treaty  with  Mexico  also  included  eagles  as 
migratory  birds,  and  afforded  these  birds  protection  under  the 
Migratory  Bird  Treaty  Act. 

As  the  popularity  of  American  Indian  artifacts  has  increased  in 
recent  years,  a  lucrative  black  market  has  developed  for  the  eagle 
and  migratory  bird  feathers  used  to  make  or  decorate  any  Indian 
curios  and  art  objects.  The  result  has  been  the  slaughter  of 
thousands  of  birds  to  fill  this  demand  for  feathers,  and  other 
parts  such  as  beaks,  bones,  and  talons.  The  prohibitions  against 
commercial  traffic  in  eagles  and  migratory  birds  are  intended  to 
eliminate  any  market  for  the  birds  themselves,  or  for  their 
feathers  and  parts. 

Can  permits  be  obtained  to  sell  curios  and  artifacts  made  with  the 
feathers  and  parts  of  protected  birds? 

NO.  The  Department  of  the  Interior  firmly  believes  that  to  carry 
out  the  objectives  of  the  law,  it  must  totally  deny  a  marketplace 
for  migratory  birds  including  eagles.  If  such  markets  were  allowed 
to  exist,  individuals  would  be  prompted  to  supply  the  demand  for 
protected  birds  by  killing  them  illegally. 


170 


What  if  an  item  is  a  genuine  antique? 

The  sale,  purchase  or  barter  of  any  protected  bird,  or  article  made 
from  the  feathers  or  parts  of  protected  birds,  is  prohibited  no 
matter  when  the  bird  was  killed  or  possessed.  Thus ,  even  genuine 
antique  Indian  art  objects,  if  they  are  made  with  feathers  or  parts 
of  protected  birds,  may  not  be  sold  or  purchased. 

Some  manufacturers  of  Indian  curios,  in  order  to  increase  the  value 
of  their  merchandise,  have  been  known  to  clip  or  otherwise  alter 
the  appearance  of  feathers  to  make  them  look  old.  The  item  is  then 
sold  as  an  "antique."  A  fraudulent  "history"  may  even  be 
fabricated  to  further  enhance  its  value.  Once  the  appearance  of 
bird  feathers  has  been  so  altered,  it  is  extremely  difficult  to 
tell  thera  from  genuine  antiques.  This  is  one  very  telling  reason 
for  prohibiting  the  sale  of  antique  Indian  articles  made  with  the 
feathers  or  parts  of  protected  birds. 

Can  a  person  sell  items  made  from  feathers  of  birds  found  dead  in 
the  wild,  or  which  are  killed  accidently? 

No  exception  from  the  prohibitions  of  the  law  is  made  for  the 
commercial  use  of  feathers  or  parts  of  protected  birds  found  dead 
in  the  wild,  those  killed  accidentally  (such  as  road  kills),  or 
those  electrocuted  by  power  lines ,  even  though  large  numbers  of 
birds  that  die  from  such  causes  could  probably  be  salvaged.  This 
prohibition  ensures  that  individuals  will  not  deliberately  kill 
birds  for  their  own  personal  use,  under  the  guise  that  "they  were 
found  dead."  The  fact  that  increasing  numbers  of  protected  birds 
are  being  killed  each  year,  and  their  feathers  or  parts  sold'  for 
personal  gain,  makes  it  imperative  that  the  Federal  Government 
prohibit  the  possession  of  salvaged  dead  specimens  without  the 
proper  permits. 

Are  there  any  legally  recognized  commercial  uses  of  feathers  or 
parts  of  protected  birds? 

As  a  general  rule,  feathers  or  parts  of  migratory  birds  or  eagles 
may  not  be  sold,  traded,  or  bartered  or  offered  for  sale.  However, 
these  items  may  be  displayed  (without  price  tags)  in  shops  or  at 
shows  and  pow-wows.  In  addition,  any  person  may  possess,  purchase; 
sell,  barter,  or  transport  for  the  making  of  fishing  flies,  bed 
pillows,  mattresses,  and  for  similar  commercial  uses,  the  feathers 
of  migratory  waterfowl  (wild  ducks,  geese,  brant,  and  swans) 
legally  taken  in  accordance  with  50  CFR  Part  20. 


171 


What  other  kinds  of  feathers  can  be  legally  bought  and  sold? 

Feathers  obtained  from  the  following  sources  could  be  used  to 
manufacture  items  for  sale,  provided  that  manufacturers  comply  with 
all  applicable  State  laws: 

1.  Domesticated  species  such  as  chickens,  turkeys,  and  guinea 

fowl.   Also,  some  species  of  ducks  and  geese  are 
considered  "domestic"  and  are  not  protected  by  Federal 
law. 

2.  Resident  game  birds  such  as  pheasant,  grouse,  quail,  wild 
turkey,  etc.,  when  taken  with  the  appropriate  license 
during  game  season. 

3.  Non-native  species,  not  protected  under  Federal  or  State 
law,  held  in  zoos  or  private  collections. 

4.  Unprotected  species  such  as  the  house  sparrow,  starling, 
and  rock  dove  (pigeon). 

Please  check  with  the  office  of  the  Assistant  Regional  Director  of 
the  U.S.  Fish  and  Wildlife  Law  Enforcement  District  serving  your 
area  if  you  are  unsure  whether  a  particular  species  is  protected. 

Can  an  individual  make  items  from  the  feathers  of  protected  birds 
for  his  own  personal  use? 

Any  person  for  his  own  use  may  possess,  transport,  and  ship, 
without  a  permit,  the  feathers,  parts,  and  skins  of  lawfully  taken 
migratory  game  birds.  A  permit  is  required  for  import  or  export. 
While  feathers  and  parts  of  migratory  nongame  birds,  bald  eagles 
and  golden  eagles  may  not  be  possessed  by  any  person  without 
appropriate  Federal  permits  .  unless  the  feathers  or  parts  were 
acquired  prior  to  the  date  when  Federal  protection  was  provided  for 
individual  species  (see  below). 

As  noted  above  all  persons  are  allowed  to  possess  or  transport,  but 
not  sell,  feathers  or  parts  of  protected  birds,  if  the  birds, 
feathers  or  parts  were  lawfully  obtained  prior  to  the  date  the 
species  in  question  was  first  protected  by  Federal  law.  The  bald 
eagle  has  been  protected  since  1940;  the  golden  eagle  since  1962. 
The  first  migratory  birds  were  protected  in  1918;  however,  numerous 
amendments  to  the  Migratory  Bird  Treaty  Act  have  since  protected 
additional  species.  '  Please  check  with  the  Assistant  Regional 
Director  of  the  O.S.  Fish  and  Wildlife  Law  Enforcement  District 
serving  your  area  to  find  out  when  a  particular  species  was  first 
afforded  protection. 


172 


Is  there  any  other  way  in  which  an  individual  can  legally  acquire 
migratory  bird  feathers? 

Permits  are  obtainable  which  authorize  the  taking  of  migratory 
birds,  and  their  feathers,  parts,  nests,  or  eggs  for  bona  fide 
scientific  or  educational  purposes.  Such  projects  must  be  amply 
justified  and  the  collector's  ornithological  qualifications 
established.  No  such  permits  are  issued  for  personal  or  hobby 
purposes.  In  addition,  there  are  certain  other  activities 
involving  migratory  birds,  such  as  the  salvage  of  sick,  injured  or 
dead  birds;  experimental  breeding  of  migratory  game  birds  other 
than  waterfowl;  or  unusual  possession,  transportation,  or  display 
requirements  for  which  special  purpose  permits  may  be  issued. 
Migratory  bird  permit  applications  should  be  directed  to  the 
Assistant  Regional  Director  of  the  Fish  and  Wildlife  Service  Law 
Enforcement  District  serving  your  area. 

Important  Note:  All  States  have  identical  or  similar  protective 
provisions  for  most  migratory  birds.  In  most  cases.  States 
likewise  require  permits  to  take,  possess,  buy,  or  sell  captive 
raised  migratory  birds.  Federal  permits  are  not  valid  without  a 
corresponding  State  permit,  if  required.  It  is  important, 
therefore,  to  check  with  Sta.te  wildlife  or  conservation  authorities 
concerning  their  restrictions,  before  applying  for  a  Federal 
permit,  because  they  may  be  more  restrictive. 

Indians  require  the  feathers  of  protected  birds  for  use  in  their 
religious  or  cultural  activities.  How  can  they  obtain  feathers  for 
these  purposes? 

American  Indians  may  possess,  carry,  use,  wear,  give,  loan,  or 
transfer  among  other  Indians,  but  without  compensation,  all  legally 
acquired  federally  protected  birds,  as  well  as  their  parts  or 
feathers  (under  some  circumstances  a  Federal  permit  may  be 
required) .  American  Indians  who  wish  to  possess  bird  feathers  or 
parts  to  be  worked  on  by  tribal  craftsmen  for  eventual  use  in 
Indian  religious  or  cultural  activities  may  transfer  such  feathers 
or  parts  to  tribal  craftsmen  without  charge,  but  such  craftsmen  may 
be  compensated  for  their  work. 

In  addition,  American  Indians  can  obtain  feathers,  whole  carcasses, 
and  parts  of  bald  or  golden  eagles  for  use  in  bona  fide  religious 
ceremonies.  Permits  which  authorize  possession  of  eagles  feathers, 
received  from  the  National  Repository,  by  tribal  enrolled  Native 
Americans  for  religious  purposes  are  issued  by  the  O.S.  Fish  and 
Wildlife  Service.  The  Service  salvages  the  remains  of  eagles 
killed  in  the  wild,  or  which  die  naturally  in  zoos,  for 
distribution  to  Indians  for  religious  purposes  from  a  newly 
established  repository  in  Ashland,  Oregon.  NATIVE  AMERICANS 
MAY  NOT  SALVAGE  EAGLES  OR  MIGRATORY  BIRDS  FODND  DEAD/ALIVE  FOR 
RELIGIODS  OR  ANY  OTHER  PORPOSES. 


173 


Information  on  how  to  apply  for  eagle  feather  permits  can  be 
obtained  by  writing  to  the  Assistant  Regional  Director  of  the  Fish 
Wildlife  Service  Law  Enforcement  District  serving  your  area. 

What  other  bird  feathers  could  be  used  by  Indians  for  religious  or 
cultural  purposes? 

Feathers  from  the  following  sources  are  also  available  to  Indians 
for  religious  or  cultural  use,  but  they  cannot  be  sold: 

1.  Wild  migratory  game  species  such  as  ducks,  geese,  swans, 
doves  pigeons,  rails,  snipe,  woodcock,  and  cranes.  These 
birds  could  be  taken  during  open  seasons  with  the  proper 
license,  and  their  feathers  utilized. 

2.  Captive-reared  migratory  game  birds  such  as  ducks,  geese, 
swans,  doves,  and  pigeons. 

3.  Various  species  taken  in  accordance  with  Federal 
regulations  on  depredation  control  (see  section  21.43  of 
50  CFR  Part  21),  such  as  blackbirds,  cowbirds,  grackles, 
crows,  and  magpies. 

Can  any  other  individuals  obtain  eagle  feathers? 

Yes.  Permits  are  available  authorizing  qualified  individuals  to 
take  possess,  or  transport  bald  or  golden  eagles  or  their  parts, 
nests,  or  eggs,  for  the  scientific  or  exhibition  purposes  of  public 
museums,  public  scientific  societies,  or  public  zoological  parks. 

What  are  the  penalties  for  violating  Federal  laws  protecting  eagles 
and  migratory  birds? 

The  Migratory  Bird  Treaty  Act  provides  for  penalties  of  up  to 
$250,000  and  2  years  imprisonment  for  persons  convicted  of  selling 
protected  birds,  or  their  feathers,  or  parts.  For  first  offenses, 
the  Bald  Eagle  Protection  Act  carries  a  maximum  criminal  penalty  of 
a  $100,000  fine  and  1  year  in  prison  for  persons  convicted  of 
selling  eagles,  or  their  feathers  or  parts.  The  penalty  for  second 
offenses  is  up  to  a  $250,000  fine  and  2  years  imprisonment. 

The  Endangered  Species  Act  of  1973  carries  a  maximum  penalty  of 
$100,000  and  1  year  imprisonment  for  criminal  offenses. 


174 


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FOR  MORE  COMPLETE  INFORMATION.  CONTACT  THE  ASSISTANT  REGIONAL 
DIRECTOR  OF  THE  U.S.  FISH  AND  WILDLIFE  SERVICE'S  LAW  ENFORCEMENT 
DISTRICT  SERVING  YOOR  AREA. 


If  you  reside  in: 


Region  1 

California,  Hawaii,  Idaho, 
Nevada,  Oregon,  Washington, 
Guan,  and  Che  Trust  territories 

Region  2 

Arizona,  New  Mexico, 

Oklahoma  and  Texas 


Please  contact: 

Assistant  Regional  Director 

Law  Enforcement 

O.S.  PJ3D  and  Wildlife  Service 

911  N.E.  11th  Avenue 
Portland,  Oregon   97232-4181 
<S03)  231-6125 


P.O.  Box  329 

Albuquerque,  New  Mexico   87103 

(505)  766-2091 


Region  3 

Illinois,  Indiana,  Iowa, 

Michigan , Minnesota , 

Missouri,  Ohio  and 

Wisconsin 

Region  4 

Alabama,  Arkansas,  Georgia, 
Florida,  Kentucky,  Louisiana, 
Mississippi,  North  Carolina, 
Puerto  Rico,  South  Carolina, 
Tennessee,  Virgin  Islands 

Region  5 

Connecticut,  Delaware, 
District  of  Columbia,  Maine, 
Maryland,  Massachusetts, 
New  Hampshire,  New  Jersey, 
New  York,  Pennsylvania, 
Rhode  Island,  Vermont, 
Virginia,  West  Virginia, 

Region  6 

Colorado,  Kansas,  Montana, 
Nebraska,  North  Dakota, 
South  Dakota,  Utah,  Wyoming 

Region  7 
Alaska 


P.O.  45-Fed.  Bldg,  Ft.  Snellinc 
Twin  Cities,  Minnesota   5  5111 
(612)  725-3530 


P.O.  Box  4839 

Atlanta,  Georgia   30302 

(404)  331-5872 


P.O.  Box  129,  New  Town  Branch 
Boston,  Massachusetts   02258 
(617)  965-2298 


P.O.  Box  25486,  DFC 
Denver,  Colorado   80225 
(303)  236-7540 


P.O.  Box  92597 
Anchorage,  Alaska 
(907)  786-3311 


99509-2597 


175 


BALD  EAGLE  PROTECTICN  ACT 
16  U.S-C.  668-668c 


{  668.  Bald  mnd  golden  titles 

(a)  Prohibited  ac'-s:  criminal  penalties 

Whoever,  within  the  United  States  or  any 
place  subject  to  the  jurisdiction  thereof,  with- 
out being  permitted  to  do  so  as  provided  In  this 
subchapter,  shall  knowingly,  or  with  wanton 
disregard  for  the  consequences  of  his  act  '.alec. 
possess,  sell,  purchase,  barter,  offer  to  sell,  pur- 
chase or  barter,  transport,  export  or  import,  at 
any  time  or  in  any  manner  any  bald  eagle  com- 
monly known  as  the  American  eagle  or  any 
golden  eagle,  alive  or  dead,  or  any  part.  nest,  or 
egg  thereof  of  the  foregoing  eagles,  or  whoever 
violates  any  permit  or  regulation  Issued  pursu- 
ant to  this  subchapter,  shall  be  fined  not  more 
than  $5,000  or  Imprisoned  not  more  than  one 
year  or  both:  Provided.  That  in  the  case  of  a 
second  or  subsequent  conviction  for  a  violation 
of  this  section  committed  after  October  23. 
1972.  such  person  shall  be  fined  not  more  than 
$10,000  or  imprisoned  not  more  than  two  years, 
or  both:  Provided  further.  That  the  commission 
of  each  talcing  or  other  act  prohibited  by  this 
section  with  respect  to  a  bald  or  golden  eagle 
shall  constitute  a  separate  violation  of  this  sec- 
tion: Provided  further,  That  one-half  of  any 
such  fine,  but  not  to  exceed  $2,500.  shall  be 
paid  to  the  person  or  persons  giving  Informa- 
tion which  leads  to  conviction:  Provided  fur- 
ther. That  nothing  herein  shall  be  construed  to 
prohibit  possession  or  transportation  of  any 
bald  eagle,  alive  or  deao.  or  any  part.  nest,  or 
egg  thereof,  lawfully  taken  prior  to  June  8. 
1940.  and  that  nothing  herein  shall  be  con- 
strued to  prohibit  possession  or  transportation 
of  any  golden  eagle,  alive  or  dead,  or  any  part, 
nest,  or  egg  thereof,  lawfully  taken  prior  to  the 
addition  to  this  subchapter  of  the  provisions  re- 
lating to  preservation  of  the  golden  eagle. 

(b)  Civil  penalties 

Whoever,  within  the  United  States  or  any 
place  subject  to  the  Jurisdiction  thereof,  with- 
out being  permitted  to  do  so  as  provided  in  this 
subchapter,  shall  take,  possess,  sell,  purchase. 
barter,  offer  to  sell,  purchase  or  barter,  trans- 
port, export  or  import,  at  any  time  or  in  any 
manner,  any  bald  eagle,  commonly  known  as 
the  American  eagle,  or  any  golden  eagle,  alive 
or  dead,  or  any  part.  nest,  or  egg  thereof  of  the 
foregoing  eagles,  or  whoever  violates  any 
permit  or  regulation  Issued  pursuant  to  this 
subchapter,  may  be  assessed  a  civil  penalty  by 
the  Secretary  of  not  more  than  $5,000  for  each 
such  violation.  Each  violation  shall  be  a  sepa- 
rate offense.  No  penalty  shall  be  assessed 
unless  such  person  is  given  notice  and  opportu- 
nity for  a  hearing  with  respect  to  such  viola- 
tion. In  determining  the  amount  of  the  penalty, 
the  gravity  of  the  violation,  and  the  demon- 
strated good  faith  of  the  person  charged  shall 
be  considered  by  the  Secretar..  For  good  cause 


shown,  the  Secretary  may  remit  or  mitigate 
any  such  penalty.  Upon  any  failure  to  pay  the 
penalty  assessed  under  this  section,  the  Secre- 
tary may  request  the  Attorney  General  to  Insti- 
tute a  civil  action  In  a  district  court  of  the 
United  States  for  any  district  In  which  such 
person  Is  found  or  resides  or  transacts  business 
to  collect  the  penalty  and  such  court  shall  have 
Jurisdiction  to  hear  and  decide  any  such  action. 
In  hearing  any  such  action,  the  court  must  sus- 
tain the  Secretary's  action  If  supported  by  sub- 
stantial evidence. 

(e)  Cancellation  of  grazing  agreemenu 

The  head  of  any  Federal  agency  who  has 
Issued  a  lease,  license,  permit,  or  other  agree- 
ment authorizing  the  grazing  of  domestic  live- 
stock on  Federal  lands  to  any  person  who  Is 
convicted  of  a  violation  of  this  subchapter  or  of 
any  permit  or  regulation  issued  hereunder  mav 
Immediately  cancel  each  such  lease,  license, 
permit,  or  other  agreement.  The  United  States 
shall  not  be  liable  for  the  payment  of  any  com- 
pensation, reimbursement,  or  damages  in  con- 
nection with  the  cancellation  of  any  lease,  li- 
cense, permit,  or  other  agreement  pursuant  to 
this  section. 

(June  8.  1940.  ch.  278.  5  I.  54  Stat.  250:  June  25 
1959.  Pub.  L.  86-70.  ?  14.  73  Stat.  143:  Oct.  24. 
1982.   Pub.   L.   87-884.   76   Stat.    1246:   Oct    23 
1972.  Pub.  L.  92-535,  j  1.  86  Stat.  1064.) 


5  668a.  Taking  and  using  of  the  bald  and  golden  eagle 
for  scientific  exhibition  and  religious  purposes 

Whenever,  after  Investigation,  the  Secretary 
of  the  Interior  shall  determine  that  it  is  com- 
patible with  the  preservation  of  the  bald  eagle 
or  the  golden  eagle  to  permit  the  taking,  pos- 
session, and  transportation  of  specimens  there- 
of for  the  scientific  or  exhibition  purposes  of 
public  museums,  scientific  societies,  and  zoolo- 
gical  parks,   or  for  the   religious   purposes  of 
Indian  tribes,  cr  that  it  is  necessary  to  permit 
the  taking  of  such  eagles  for  the  protection  of 
wildlife  or  of  agricultural  or  other  interests  in 
any  particular  locality,  he  may  authorize  the 
taking  of  such  eagles  pursuant  to  regulations 
which  he  is  hereby  authorized  to  prescribe:  Pro- 
vided. That  on  request  of  the  Governor  of  any 
State,  the  Secretary  of  the  Interior  shall  autho- 
rize the  taking  of  golden  eagles  for  the  purpose 
of   seasonally    protecting    domesticated    flocks 
and  herds  in  such  State,  in  accordance  with  reg- 
ulations  established    under   the   provisions   of 
this  section,  in  such  part  or  parts  of  such  State 
and  for  such  periods  as  the  Secretary  deter- 
mines to  be  necessary  to  protect  such  interests: 
Provided  further.  That  bald  eagles  may  not  be 
taken   for  any  purpose   unless,   prior  to  such 


FWS/LE  ENr  4 


(Revised  11/8/78) 


Pace  1  of  2 


176 


taking.  a  permit  to  do  so  is  procured  from  the 
Secretary    of    the    Interior.    Provxded   further, 
That  the  Secretary  of  the  Interior,  pursuant  to 
such    regulations    as    he    may    prescribe,    may 
permit  the  taking,  possession,  and  transporta- 
tion of  golden  eagles  for  the  purposes  of  falcon- 
ry, except  that  only  golden  eagles  which  would 
be  taken  because  of  depredations  on  livestock 
ox  vildliii  umy  be  taken  for  purposes  of  "nlmn- 
tyi     Provided  further.  That  the  Siciur/  of  the 
Interior,   pursuant  to  such  regnUr-cna  is  he  nay 
prescribe,  ray  perm;  the  talcing  of  golden  eagle 
nests  which  interfere  with  resource  developsenc 
or  recovery  operations. 

(June  I.  1340.  eh.    778.  S3,   S4  Stat.  231;  Oct.   24, 
1361,   Pud.1.  17-984,   76  Stat.  1246:  Oct.   23,   1372. 
Puo.l.   92-535.   S2,   86  Stat.   1065:  Nov.  8,  1378, 
P\c.L.   95-616,   S3,  92  Stac   3114.) 

3  MSb.  Enforcement 

(a)  Arrest:  search:  iasuance  and  execution  of  war- 
ranis  and  process 

Any  employee  of  the  Department  of  the  Inte- 
rior authorized  by  the  Secretary  of  the  Interior 
to  enforce  the  provisions  of  this  subchapter 
may.  without  warrant,  arrest  any  person  com- 
mitting in  his  presence  or  view  a  violation  of 
this  subchapter  or  of  any  permit  or  regulations 
issued  hereunder  and  take  such  person  immedi- 
ately for  examination  or  trial  before  an  officer 
or  court  of  competent  jurisdiction:  may  execute 
any  warrant  or  other  process  issued  by  an  offi- 
cer or  court  of  competent  jurisdiction  for  the 
enforcement  of  the  provisions  of  this  sub- 
chapter, and  may.  with  or  without  a  warrant,  as 
authorized  by  law.  search  any  place.  The  Secre- 
tary of  the  Interior  is  authorized  to  enter  into 
cooperative  agreements  with  Stale  fish  and 
wildlife  agencies  or  otner  appropriate  State  au- 
thorities to  facilitate  enforcement  of  this  sub- 
chapter, and  by  said  agreements  to  delegate 
such  enforcement  authority  to  State  law  en- 
forcement personnel  as  he  deems  appropriate 
for  effective  enforcement  of  this  subchapter. 
Any  judge  of  any  court  established  under  the 
laws  of  the  United  States,  and  any  United 
States  magistrate  may.  within  his  respective  ju- 
risdiction, upon  proper  oath  or  affirmation 
showing  probable  cause,  issue  warrants  in  all 
such  cases. 

(b)  Forfeiture 

All  bald  or  golden  eagles,  or  parts,  nests,  or 
eggs  thereof,  taken,  possessed,  sold,  purchased, 
bartered,  offered  for  sale,  purchase,  or  barter, 
transported,  exported,  or  Imported  contrary  to 
the  provisions  of  this  subchapter,  or  of  any 
permit  or  regulation  Issued  hereunder,  and  all 
guns,  traps,  nets,  and  other  equipment,  vessels, 
vehicles,  aircraft,  and  other  means  of  transpor- 
tation used  to  aid  in  the  taking,  possessing,  sell- 
ing, purchasing,  bartering,  offering  for  sale, 
purchase,  or  barter,  transporting,  exporting,  or 
Importing  of  any  bird,  or  part.  nest,  or  egg 
thereof,  in  violation  of  this  subchapter  or  of 
any  permit  or  regulation  Issued  hereunder  shall 
be  subject  to  forfeiture  to  the  United  States. 


(c)  Customs  law*  applied 

All  provisions  of  law  relating  to  the  seizure, 
forfeiture,  and  condemnation  of  a  vessel  for  vio- 
lation of  the  customs  laws,  the  disposition  of 
such  vessel  or  the  proceeds  from  the  sale  there- 
of, and  the  remission  or  mitigation  of  such  for- 
feitures, shall  apply  to  the  seizures  and  forfei- 
tures incurred,  or  alleged  to  have  been  in- 
curred, under  the  provisions  of  this  subchapter. 
Insofar  as  such  provisions  of  law  are  applicable 
and  not  inconsistent  with  the  provisions  of  this 
subchapter.  Provided.  That  all  powers,  rights, 
and  duties  conferred  or  imposed  by  the  customs 
laws  upon  any  officer  or  employee  of  the  Trea- 
sury Department  shall,  for  the  purposes  of  this 
subchapter,  be  exercised  or  performed  by  the 
Secretary  of  the  Interior  or  by  such  persons  as 
he  may  designate. 

(June  8.  1940.  ch.  278.  5  3.  54  Stat.  251:  Oct.  17. 
1968.  Pub.  L.  90-578.  title  IV.  5  402(b)(2).  82 
Stat.  1118:  Oct.  23.  1972.  Pub.  L.  92-535.  }  3.  86 
Stat.  1065.) 


5  668c.  Definitions 

As  used  In  this  subchapter  "whoever"  in- 
cludes also  associations,  partnerships,  and  cor- 
porations: "take"  includes  also  pursue,  shoot, 
shoot  at.  poison,  wound,  lull,  capture,  trap,  col- 
lect, molest  or  disturb:  "transport"  includes 
also  ship,  convey,  carry,  or  transport  by  any 
means  whatever,  and  deliver  or  receive  or  cause 
to  be  delivered  or  received  for  such  shipment. 
conveyance,  carriage,  or  transportation. 

(June  8.  1940.  ch.  278.  5  4.  54  Stat.  251;  Oct.  23. 
1972.  Pub.  L.  92-535.  5  4.  86  Stat.  1065.) 


FWS/LE  ENF  4 


(Revised  11/8/78) 


Page  2  of  2 


5PO  ••*-«•■ 


177 

PART  13  -  GENERAL  PERMIT  PROCEDURES     [Updated  10/1/89] 

Subpart  A  —  Introduction 

Sec 

13.1    General. 

132    Purpose  of  regulations. 

13.3  Scope  of  regulations. 

13.4  Emergency  variation  from  requirements. 

13.5  Information  collection  requirements. 
Subpart  B  -  Application  for  Permits 

13.11  Application  procedures. 

13.12  General  information  requirements  on  applications  for  permits. 
Subpart  C  --  Permit  Administration 

13.21    Issuance  of  permits. 

1322    Renewal  of  permits. 

13.23    Amendment  of  permits. 

1324    Right  of  succession  by  certain  persons. 

13.25    Permits  not  transferable;  agents. 

1326    Discontinuance  of  permit  activity. 

13.27    Permit  suspension. 

1328  Permit  revocation. 

1329  Review  procedures. 
Subpart  D  -  Conditions 

13.41  Humane  conditions. 

13.42  Permits  are  specific. 

13.43  Alteration  of  permits. 


178 


13.44  Display  of  permit. 

13.45  Filing  of  reports. 

13.46  Maintenance  of  records. 

13.47  Inspection  requirement. 

13.48  Compliance  with  conditions  of  permit. 

13.49  Surrender  of  permit. 

13.50  Acceptance  of  liability. 

Authority:     16  U.S.C.  668a;  16  U.S.C.  704,  712;  16  U.S.C.  742J-1;  16  U.S.C 
1382;  16  U.S.C.  1538(d);  16  U.S.C.  1539,  1540(f);  16  U.S.C.  3374;  18  U.S.C.  42;  19 
U.S.C.  1202;  E.O.  11911,  41  FR  15683;  31  U.S.C.  9701. 

Source:    39  FR  1161,  Jan.  4,  1974;  54  FR  38147,  Sept.  14,  1989,  unless 
otherwise  noted. 

Subpart  A  —  Introduction 

§13.1    General. 

Each  person  intending  to  engage  in  an  activity  for  which  a  permit  is  required 
by  this  Subchapter  B  shall,  before  commencing  such  activity,  obtain  a  valid  permit 
authorizing  such  activity.  Each  person  who  desires  to  obtain  the  permit  privileges 
authorized  by  this  subchapter  must  make  application  for  such  permit  in  accordance 
with  the  requirements  of  this  Pan  13  and  the  other  regulations  in  this  subchapter 
which  set  forth  the  additional  requirements  for  the  specific  permits  desired.  If  the 
activity  for  which  permission  is  sought  is  covered  by  the  requirements  of  more  than 
one  pan  of  this  subchapter,  the  requirements  of  each  pan  must  be  met.  If  the 
information  required  for  each  specific  permitted  activity  is  included,  one  application 
will  be  accepted  for  all  permits  required,  and  a  single  permit  will  be  issued. 

§  13.2    Purpose  of  regulations. 

The  regulations  contained  in  this  pan  provide  uniform  rules,  conditions,  and 
procedures  for  the  application  for  and  the  issuance,  denial,  suspension,  revocation,  and 
general  administration  of  all  permits  issued  pursuant  to  this  Subchapter  B. 


179 


§  13J    Scope  of  regulations. 

The  provisions  in  this  pan  are  in  addition  to,  and  are  not  in  lieu  of,  other 
permit  reeulations  of  this  subchapter  and  apply  to  all  permits  issued  thereunder, 
including  "'Import  and  Marking"  (Pan  14),  "Feather  Imports"  (Pan  15),  "Injurious 
Wildlife"  (Pan  16),  "Endangered  Wildlife  and  Plants"  (Pan  17),  "Marine  Mammals" 
(Pan  18),  "Migratory  Birds"  (Pan  21),  "Eagles"  (Pan  22)  and  "Endangered  Species 
Convention"  (Pan  23).  As  used  in  this  Pan  13,  the  term  permit"  shall  refer  to  either 
a  license,  permit,  or  certificate  as  the  context  may  require. 

[42  FR  10465,  Feb.  22,  1977,  as  amended  at  42  FR  32377,  June  24,  1977;  45  FR 
56673,  Aug.  25,  1980] 

§  13.4    Emergency  variation  from  requirements. 

The  Director  may  approve  variations  from  the  requirements  of  this  pan 
when  he  finds  that  an  emergency  exists  and  that  the  proposed  variations  will  not 
hinder  effective  administration  of  this  Subchapter  B,  and  will  not  be  unlawful. 

§  13.5    Information  collection  requirements. 

(a)  The  information  collection  requirements  contained  within  this  Part  13 
have  been  approved  by  the  Office  of  Management  and  Budget  under  44  U.S.C.  3507 
and  assigned  Clearance  Number  1018  •  0022.  This  information  is  being  collected  to 
provide  Information  necessary  to  evaluate  permit  applications.  This  information  will  be 
used  to  review  permit  applications  and  make  decisions,  according  to  criteria 
established  in  various  Federal  wildlife  conservation  statutes  and  regulations,  on  the 
issuance,  suspension,  revocation  or  denial  of  permits.  The  obligation  to  respond  is 
required  to  obtain  or  retain  a  permit. 

(b)  Tne  public  reporting  burden  for  these  reporting  requirements  is  estimated 
to  vary  from  15  minutes  to  4  hours  per  response,  with  an  average  of  0.803  hours  per 
response,  including  time  for  reviewing  instructions,  gathering  and  maintaining  data, 
and  completing  and  reviewing  the  forms.    Comments  regarding  the  burden  estimate  or 
anv  other  aspect  of  these  reportine  requirements  should  be  directed  to  the  Service 
Information  Collection  Clearance  Officer,  MS-224  ARLSQ,  Fish  and  Wildlife  Service, 
Washineton,  D.C.    20240,  or  the  Office  of  Management  and  Budget,  Paperwork 
Reduction  Project  (1018-0022),  Washington,  D.C    20503. 

[47  FR  30785,  July  15,  1982;  as  amended  54  FR  38147,  Sept  14,  1989] 


180 


Subpart  B  -  Application  for  Permits 

§13.11  Application  procedures. 

The  Service  may  not  issue  a  permit  for  any  activity  authorized  by  this 
Subchapter  B  unless  the  applicant  has  filed  an  application  in  accordance  with  the 
following  procedures.    Applicants  do  not  have  to  submit  a  separate  application  for 
each  permit  unless  otherwise  required  by  this  subchapter. 

(a)  Forms.  Applications  must  be  submitted  in  writing  on  a  Federal  Fish  and 
Wildlife  License/Permit  Application  (Form  3  -  200)  or  as  otherwise  specifically 
directed  by  the  Service. 

(b)  Forwarding  instructions.  Applications  for  permits  in  the  following 
categories  should  be  forwarded  to  the  issuing  office  indicated  below. 

(1)  Migrator)'  bird  banding  permits  (50  CFR  21.22)  -  Bird  Banding 
Laboratory,  Office  of  Migratory  Bird  Management,  U.S.  Fish  and  Wildlife  Service, 
Laurel,  Maryland  2070S.  "(Special  application  forms  must  be  used  for  bird  banding 
permits.  They  may  be  obtained  by  writing  to  the  Bird  Banding  Laboratory). 

(2)  Exception  to  designated  port  (50  CFR  Pan  14),  import/export  license 
(50  CFR  14.93),  migrator.'  bird" permit,  other  than  banding  (50  CFR  Pan  21)  and 
Bald  or  Golden  eagle  permits  (50  CFR  Pan  22)  -  Assistant  Regional  Director  for 
Law  Enforcement  of  the  Law  Enforcement  District  in  which  the  applicant  resides  (see 
50  CFR  10.22  for  addresses  and  boundaries  of  the  Law  Enforcement  Districts). 

(3)  Feather  quota  (50  CFR  Pan  15),  injurious  wildlife  (50  CFR  Pan  16), 
endangered  and  threatened  species  (50  CFR  Pan  17),  marine  mammal  (50  CFR  Pan 
18)  and  permits  and  cenificates  for  the  Convention  on  International  Trade  in 
Endangered  Species  (CITES;  (50  CFR  Pan  23)  -  U.S.  Fish  and  Wildlife  Service, 
Federal  Wildlife  Permit  Office,  P.O.  Box  3654,  Arlington,  Virginia  22203. 

(c)  Time  notice.  The  Semce  will  process  all  applications  as  quickly  as 
possible.    However,  it  cannot  guarantee  final  action  within  the  time  limits  the 
applicant  requests.    Appiicants  for  endangered  species  and  marine  mammal  permits 
should  submit  applications  to  the  Office  of  Management  Authority  which  are 
postmarked  at  least  90  calendar  days  prior  to  the  requested  effective  date.    Applicants 
for  all  other  permits  should  submit  applications  to  the  issuing  office  which  are 
postmarked  at  least  60  days  prior  to  the  requested  effective  date. 

(d)  Permit  fees.  (1)  Unless  otherwise  exempted  by  this  paragraph,  applicants 
for  issuance  or  renewal  of  permits  must  pay  the  required  permit  processing  fee  at  the 
time  of  application.    Appiicants  should  pay  fees  by  check  or  money  order  made 
payable  to  "U.S.  Fish  and  Wildlife  Service."    The  Service  will  not  refund  any 
application  fee  under  any  circumstances  if  the  Service  has  processed  the  application. 


181 


However,  the  Service  may  return  the  application  fee  if  the  applicant  withdraws  the 
application  before  the  Service  has  significantly  processed  it. 

(2)  Except  as  provided  in  paragraph  (d)(4)  of  this  section,  the  fee  for 
processing  any  application  is  $25.00.    If  regulations  in  this  subchapter  require  more 
than  one  type  of  permit  for  an  activity,  and  the  permits  are  issued  by  the  same  office, 
the  issuing  office  may  issue  one  consolidated  permit  authorizing  the  activity.    The 
issuing  office  may  charge  only  the  highest  single  fee  for  the  activity  permitted. 

(3)  A  fee  shall  not  be  charged  to  any  Federal,  State  or  local  government 
agency,  nor  to  any  individual  or  institution  under  contract  to  such  agency  for  the 
proposed  activities.  The  fee  may  be  waived  or  reduced  for  public  institutions  (see  50 
CFR  10.12).  Proof  of  such  status  must  accompany  the  application. 

(4)  Nonstandard  fees. 

Tvpe  of  Permit  Fee 

Import/Export  License  (Section  14.93) $125   and  inspection  fees. 

Marine  Mammal  (Section  18.31) 100 

Migratory  Bird-Banding  or  Marking  (21.22)...  None 

Bald  or  Golden  Eagles  (Part  22) None 

(e)    Abandoned  or  incomplete  applications.    Upon  receipt  of  an  incomplete 
or  improperly  executed  application,  or  if  the  applicant  does  not  submit  the  proper 
fees,  the  issuing  office  will  notify  the  applicant  of  the  deficiency.    If  the  applicant  fails 
to  supply  the  correct  information  to  complete  the  application  or  to  pay  the  required 
fees  within  45  calendar  days  of  the  date  of  notification,  the  Service  will  consider  the 
application  abandoned.    The  Service  will  not  refund  any  fees  for  an  abandoned 
application. 

[47  FR  30785,  Julv  15,  1982;  50  FR  52889,  Dec.  26,  1985,  as  amended  at  54  FR 
38147,  Sept.  14,  1989.] 

§  13.12    General  information  requirements  on  applications  for  permits. 

(a)  General  information  required  for  all  applications.    All  applications  must 
contain  the  following  information: 

(1)    Applicant's  full  name,  mailing  address,  telephone  number(s),  and, 


182 


(i)    If  the  applicant  is  an  individual,  the  date  of  birth,  height,  weight,  hair 
color,  eye  color,  sex,  and  any  business  or  institutional  affiliation  of  the  applicant 
related  to  the  requested  permitted  activity;  or 

(ii)    If  the  applicant  is  a  corporation,  firm,  partnership,  association, 
institution,  or  public  or  private  agency,  the  name  and  address  of  the  president  or 
principal  officer  and  of  the  registered  agent  for  the  service  of  process; 

(2)  Location  where  the  requested  permitted  activity  is  to  occur  or  be 
conducted; 

(3)  Reference  to  the  part(s)  and  section(s)  of  this  Subchapter  B  as  listed  in 
paragraph  (b)  of  this  section  under  which  the  application  is  made  for  a  permit  or 
permits,  together  with  any  additional  justification,  including  supporting  documentation 
as  required  by  the  referenced  part(s)  and  section(s); 

(4)  If  the  requested  permitted  activity  involves  the  import  or  re-export  of 
wildlife  or  plants  from  or  to  any  foreign  country,  and  the  country  of  origin,  or  the 
country  of  export  or  re-export  restricts  the  taking,  possession,  transportation, 
exportation,  or  sale  of  wildlife  or  plants,  documentation  as  indicated  in  §   14.52(c)  of 
this  Subchapter  B; 

(5)  Certification  in  the  following  language: 

I  hereby  certify  that  I  have  read  and  am  familiar  with  the  regulations  contained 
in  Title  50,  Pan  13,  of  the  Code  of  Federal  Regulations  and  the  other  applicable 
parts  in  Subchapter  B  of  Chapter  I  of  Title  50,  Code  of  Federal  Regulations,  and  I 
further  certify  that  the  information  submitted  in  this  application  for  a  permit  is 
complete  and  accurate  to  the  best  of  my  knowledge  and  belief.    I  understand  that  any 
false  statement  herein  may  subject  me  to  suspension  or  revocation  of  this  permit  and 
to  the  criminal  penalties  of  18  U.S.C.  1001. 

(6)  Desired  effective  date  of  permit  except  where  issuance  date  is  fixed  by 
the  part  under  which  the  permit  is  issued; 

(7)  Date; 

(8)  Signature  of  the  applicant;  and 

(9)  Such  other  information  as  the  Director  determines  relevant  to  the 
processing  of  the  application. 

(b)  Additional  information  required  on  permit  applications.  As  stated  in 
paragraph  (a)(3)  of  this  section  certain  additional  information  is  required  on  all 
applications.  These  additional  requirements  may  be  found  by  referring  to  the  section 
of  this  Subchapter  B  cited  after  the  type  of  permit  for  which  application  is  being 
made: 


183 


Tvpe  of  Permit  SSSSIOL 

Importation  at  non-designated  ports: 

Scientific 1431 

Deterioration  prevention 14.32 

Economic  hardship 1433 

Marking  of  package  or  container. 

Symbol  marking 14.83 

Import/export  license 14.93 

Feather  import  quota:  Importation  or  entry 15.21 

Injurious  wildlife:  Importation  or  shipment 16.22 

Endangered  wildlife  and  plant  permits: 

Similarity  of  appearance 1732 

Scientific,  enhancement  of  propagation  or  survival, 

incidental  taking  for  wildlife 17.22 

Scientific,  propagation,  or  survival  for  plants 17.62 

Economic  hardship  for  wildlife 1723 

Economic  hardship  for  plants 17.63 

Threatened  wildlife  and  plant  permits: 

Similarity  of  appearance 1732 

General  for  wildlife 1732 

American  alligator  -  buyer  or  tanner 17.42(a) 

General  for  plants 17.72 


184 


Marine  mammals  permits: 

Scientific  research 1831 

Public  display 1831 

Migratory  bird  permits: 

Banding  or  marking 21.22 

Scientific  collecting 2123 

Taxidermist 2124 

Waterfowl  sale  and  disposal 2125 

Special  aviculrurist 2126 

Special  purpose 2127 

Falconry 2128 

Raptor  propagation  permit 2130 

Depredation  control 21.41 

Eagle  permits: 

Scientific  or  exhibition 2221 

Indian  religious  use 2222 

Depredation  control 22.23 

Falconry  purposes 22.24 

Take  of  golden  eagle  nests  22.25 

Endangered  Species  Convention  permits 23.15 


[39  FR  1161,  Jan.  4,  1974,  as  amended  at  42  FR  10465,  Feb.  22,  1977;  42  FR  32377, 
June  24,  1977;  44  FR  54006,  Sept.  17,  1979;  44  FR  59083,  Oct.  12,  1979;  45  FR 
56673,  Aug.  25,  1980:  45  FR  78154,  Nov.  25,  1980;  46  FR  42680,  Aug.  24,  1981;  48 
FR  31607,  July  8,  1983;  48  FR  57300,  Dec.  29,  1983;  50  FR  39687,  Sept.  30,  1985;  50 
FR  45408,  Oct.  31,  1985;  54  FR  38147,  Sept.  14,  1989.] 

8 


185 


Subpart  C  -  Permit  Administration 
§  1321    Issuance  of  permits. 

(a)  No  permit  may  be  issued  prior  to  the  receipt  of  a  written  application 
therefor,  unless  a  written  variation  from  the  requirements,  as  authorized  by  §  13.4,  is 
inserted  into  the  official  file  of  the  Bureau.  An  oral  or  written  representation  of  an 
employee  or  agent  of  the  United  States  Government,  or  an  action  of  such  employee 
or  agent,  shall  not  be  construed  as  a  permit  unless  it  meets  the  requirements  of  a 
permit  as  defined  in  50  CFR  10.12. 

(b)  Upon  receipt  of  a  properly  executed  application  for  a  permit,  the 
Director  shall  issue  the  appropriate  permit  unless: 

(1)  The  applicant  has  been  assessed  a  civil  penalty  or  convicted  of  any 
criminal  provision  of  any  statute  or  regulation  relating  to  the  activity  for  which  the 
application  is  filed,  if  such  assessment  or  conviction  evidences  a  lack  of  responsibility. 

(2)  The  applicant  has  failed  to  disclose  material  information  required,  or  has 
made  false  statements  as  to  any  material  fact,  in  connection  with  his  application; 

(3)  The  applicant  has  failed  to  demonstrate  a  valid  justification  for  the 
permit  and  a  showing  of  responsibility, 

(4)  The  authorization  requested  potentially  threatens  a  wildlife  or  plant 
population,  or 

(5)  The  Director  finds  through  further  inquiry  or  investigation,  or  otherwise, 
that  the  applicant  is  not  qualified. 

(c)  Disqualifying  factors.    Any  one  of  the  following  will  disqualify  a  person 
from  receiving  permits  issued  under  this  Part. 

(1)  A  conviction,  or  entry  of  a  plea  of  guilty  or  nolo  contendere,  for  a 
felony  violation  of  the  Lacey  Act,  the  Migratory  Bird  Treaty  Act,  or  the  Bald  and 
Golden  Eagle  Protection  Act  disqualifies  any  such  person  from  receiving  or  exercising 
the  privileges  of  a  permit,  unless  such  disqualification  has  been  expressly  waived  by 
the  Director  in  response  to  a  written  petition. 

(2)  The  revocation  of  a  permit  for  reasons  found  in  §§  1328(a)(1)  or  (a)(2) 
disqualifies  anv  such  person  from  receiving  or  exercising  the  privileges  of  a  similar 
permit  for  a  period  of  five  years  from  the"  date  of  the  final  agency  decision  on  such 
revocation. 


186 


(3)  The  failure  to  pay  any  required  fees  or  assessed  costs  and  penalties, 
whether  or  not  reduced  to  judgement  disqualifies  such  person  from  receiving  or 
exercising  the  privileges  of  a  permit  as  long  as  such  moneys  are  owed  to  the  United 
States.    This  requirement  shall  not  apply  to  any  civil  penalty  presently  subject  to 
administrative  or  judicial  appeal;  provided  that  the  pendency  of  a  collection  action 
brought  by  the  United  States  or  its  assignees  shall  not  constitute  an  appeal  within  the 
meaning  of  this  subsection. 

(4)  The  failure  to  submit  timely,  accurate,  or  valid  reports  as  required  may 
disqualify  such  person  from  receiving  or  exercising  the  privileges  of  a  permit  as  long 
as  die  deficiency  exists. 

(d)  Use  of  supplemental  information.    The  issuing  officer,  in  making  a 
determination  under  this  subsection,  may  use  any  information  available  that  is  relevant 
to  the  issue.    This  may  include  any  prior  conviction,  or  entry  of  a  plea  guilty  or  nolo 
contendere,  or  assessment  of  civil  or  criminal  penalty  for  a  violation  of  any  Federal  or 
State  law  or  regulation  governing  the  permitted  activity.    It  may  also  include  any  prior 
permit  revocations  or  suspensions,  or  any  reports  of  State  or  local  officials.    The 
issuing  officer  shall  consider  all  relevant  facts  or  information  available,  and  may  make 
independent  inquiry  or  investigation  to  verify  information  or  substantiate  qualifications 
asserted  by  the  applicant. 

(e)  Conditions  of  issuance  and  acceptance.  (1)    Any  permit  automatically 
incorporates  within  its  terms  the  conditions  and  requirements  of  Subpart  D  of  this 
pan  and  of  any  part(s)  or  section(s)  specifically  authorizing  or  governing  the  activity 
for  which  the  permit  is  issued. 

(2)    Any  person  accepting  and  holding  a  permit  under  this  Subchapter  B 
acknowledges  the  necessity  for  close  regulation  and  monitoring  of  the  permitted 
activity  by  the  Government.    By  accepting  such  permit,  the  permittee  consents  to  and 
shall  allow  entry  by  agents  or  employees  of  the  Service  upon  premises  where  the 
permitted  activity  is  conducted  at  any  reasonable  hour.    Service  agents  or  employees 
may  enter  such  premises  to  inspect  the  location;  any  books,  records,  or  permits 
required  to  be  kept  by  this  Subchapter  B;  and  any  wildlife  or  plants  kept  under 
authority  of  the  permit. 

(f)  Term  of  permit.    Unless  otherwise  modified,  a  permit  is  valid  during  the 
period  specified  on  the  face  of  the  permit.    Such  period  shall  include  the  effective 
date  and  the  date  of  expiration. 

(g)  Denial.    The  issuing  officer  may  deny  a  permit  to  any  applicant  who 
fails  to  meet  the  issuance  criteria  set  forth  in  this  section  or  in  the  part(s)  or 
section(s)  specifically  governing  the  activiry  for  which  the  permit  is  requested. 

[39  FR  1161,  Jan.  4,  1974,  as  amended  at  42  FR  32377,  June  24,  1977;  47  FR  30785, 
July  15,  1982;  54  FR  38148,  Sept.  14,  1989.] 


10 


187 


§  13.22       Renewal  of  permits. 

(a)  Application  for  renewal.    Applicants  for  renewal  of  a  permit  must 
submit  a  written  application  at  least  30  days  prior  to  the  expiration  date  of  the  . 
permit.    Applicants  must  certify  in  the  form  required  by  §   13.12(a)(5)  that  all 
statements  and  information  in  the  original  application  remain  current  and  correct, 
unless  previously  changed  or  corrected.    If  such  information  is  no  longer  current  or 
correct,  the  applicant  must  provide  corrected  information. 

(b)  Renewal  criteria.    The  Service  shall  issue  a  renewal  of  a  permit  if  the 
applicant  meets  the  criteria  for  issuance  in  §   1321(b)  and  is  not  disqualified  under  § 
13.21(c). 

(c)  Continuation  of  permitted  activity.    Any  person  holding  a  valid, 
renewable  permit,  who  has  complied  with  this  section,  may  continue  the  activities 
authorized  by  the  expired  permit  until  the  Service  has  acted  on  such  person's 
application  for  renewal. 

(d)  Denial.    The  issuing  officer  may  deny  renewal  of  a  permit  to  any 
applicant  who  fails  to  meet  the  issuance  criteria  set  forth  in  §  13.21  of  this  part,  or  in 
the  part(s)  or  section(s)  specifically  governing  the  activity  for  which  the  renewal  is 
requested. 

§  13.23       Amendment  of  permits. 

(a)  Permittee's  request    Where  circumstances  have  changed  so  that  a 
permittee  desires  to  have  any  condition  of  his  permit  modified,  such  permittee  must 
submit  a  full  written  justification  and  supporting  information  in  conformity  with  this 
pan  and  the  part  under  which  the  permit  was  issued. 

(b)  Service  reservation.    The  Service  reserves  the  right  to  amend  any  permit 
for  just  cause  at  any  time  during  its  term,  upon  written  finding  of  necessity. 

(c)  Change  of  name  or  address.    A  permittee  is  not  required  to  obtain  a 
new  permit  if  there  is  a  change  in  the  legal  individual  or  business  name^  or  in  the 
mailing  address  of  the  permittee.    A  permittee  is  required  to  notify  the  issuing  office 
within  10  calendar  days  of  such  change.    This  provision  does  not  authorize  any  change 
in  location  of  the  conduct  of  the  permitted  activity  when  approval  of  the  location  is  a 
qualifying  condition  of  the  permit. 

§  13.24       Right  of  succession  by  certain  persons. 

(a)    Certain  persons,  other  than  the  permittee  are  granted  the  right  to  carry 
on  a  permitted  activity  for  the  remainder  of  the  term  of  a  current  permit  provided 
they  comply  with  the  provisions  of  paragraph  (b)  of  this  section.    Such  persons  are 
the  following: 

11 


188 


(1)  the  surviving  spouse,  child,  executor,  administrator,  or  other  legal 
representative  of  a  deceased  permittee;  and 

(2)  A  receiver  or  trustee  in  bankruptcy  or  a  court  designated  assignee  for 
the  benefit  of  creditors. 

(b)    In  order  to  secure  the  right  provided  in  this  section  the  person  or 
persons  desiring  to  continue  the  activity  shall  furnish  the  permit  to  the  issuing  officer 
for  endorsement  within  90  days  from  the  date  the  successor  begins  to  carry  on  the 
activity. 

[39  FR  1161,  Jan.  4,  1974,  as  amended  at  47  FR  30786,  July  15,  1982;  54  FR  38148, 
Sept.  14,  1989.] 

§  13.25       Permits  not  transferable;  agents. 

(a)  Permits  issued  under  this  pan  are  not  transferable  or  assignable.    Some 
permits  authorize  certain  activities  in  connection  with  a  business  or  commercial 
enterprise  and  in  the  event  of  any  lease,  sale,  or  transfer  of  such  business  entity,  the 
successor  must  obtain  a  permit  prior  to  continuing  the  permitted  activity.    However, 
certain  limited  rights  of  succession  are  provided  in  §   13.24. 

(b)  Except  as  otherwise  stated  on  the  face  of  the  permit,  any  person  who  is 
under  the  direct  control  of  the  permittee,  or  who  is  employed  by  or  under  contract  to 
the  permittee  for  purposes  authorized  by  the  permit,  may  carry  out  the  activity 
authorized  by  the  permit,  as  an  agent  for  the  permittee.- 

§  1326       Discontinuance  of  permit  activity. 

When  a  permittee,  or  any  successor  to  a  permittee  as  provided  for  by  § 
13.24,  discontinues  activities  authorized  by  a  permit,  the  permittee  shall  within  30 
calendar  days  of  the  discontinuance  return  the  permit  to  the  issuing  office  together 
with  a  written  statement  surrendering  the  permit  for  cancellation.    The  permit  shall 
be  deemed  void  and  cancelled  upon  its  receipt  by  the  issuing  office.    No  refund  of 
any  fees  paid  for  issuance  of  the  permit  or  for  any  other  fees  or  costs  associated  with 
a  permitted  activity  shall  be  made  when  a  permits  surrendered  for  cancellation  for 
any  reason  prior  to  the  expiration  date  stated  on  the  face  of  the  permit. 

§  13.27       Permit  suspension. 

(a)    Criteria  for  suspension.    The  privileges  of  exercising  some  or  all  of  the 
permit  authority  may  be  suspended  at  any  time  if  the  permittee  is  not  in  compliance 
with  the  conditions  of  the  permit,  or  with  any  applicable  laws  or  regulations  governing 
the  conduct  of  the  permitted  activity.    The  issuing  officer  may  also  suspend  all  or  pan 
of  the  privileges  authorized  by  a  permit  if  the  permittee  fails  to  pay  any  fees, 
penalties  or  costs  owed  to  the  Government.    Such  suspension  shall  remain  in  effect 
until  the  issuing  officer  determines  that  the  permittee  has  conected  the  deficiencies. 

12 


189 


(b)    Procedure  for  suspension. 

(1)  When  the  issuing  officer  believes  there  are  valid  grounds  for  suspending 
a  permit  the  permittee  shall  be  notified  in  writing  of  the  proposed  suspension  by 
certified  or  registered  mail.    This  notice  shall  identify  the  permit  to  be  suspended,  the 
reason(s)  for  such  suspension,  the  actions  necessary  to  correct  the  deficiencies,  and 
inform  the  permittee  of  the  right  to  object  to  the  proposed  suspension.    The  issuing 
officer  may  amend  any  notice  of  suspension  at  any  time. 

(2)  Upon  receipt  of  a  notice  of  proposed  suspension  the  permittee  may  file 
a  written  objection  to  the  proposed  action.    Such  objection  must  be  in  writing,  must 
be  filed  within  45  calendar  days  of  the  date  of  the  notice  of  proposal,    must  state  the 
reasons  why  the  permittee  objects  to  the  proposed  suspension,  and  may  include 
supporting  documentation. 

(3)  A  decision  on  the  suspension  shall  be  made  within  45  days  after  the  end 
of  the  objection  period.    The  issuing  officer  shall  notify  the  permittee  in  writing  of 
the  Service's  decision  and  the  reasons  therefore.    The  issuing  officer  shall  also  provide 
the  applicant  with  the  information  concerning  the  right  to  request  reconsideration  of 
the  decision  under  §   1329  of  this  part  and  the  procedures  for  requesting 
reconsideration. 

§  13.28       Permit  revocation. 

(a)    Criteria  for  revocation.    A  permit  may  be  revoked  for  any  of  the 
following  reasons: 

(1)  The  permittee  willfully  violates  any  Federal  or  State  statute  or 
regulation,  or  any  Indian  tribal  law'  or  regulation,  or  any  law  or  regulation  of  any 
foreign  country,  which  involves  a  violation  of  the  conditions  of  the  permit  or  of  the 
laws  or  regulations  governing  the  permitted  activity;  or 

(2)  The  permittee  fails  within  60  days  to  correct  deficiencies  that  were  the 
cause  of  a  permit  suspension;  or 

(3)  The  permittee  becomes  disqualified  under  §   1321(c)  of  this  part;  or 

(4)  A  change  occurs  in  the  statute  or  regulation  authorizing  the  permit  that 
prohibits  the  continuation  of  a  permit  issued  by  the  Service;  or 

(5)  The  population(s)  of  the  wildlife  or  plant  that  is  subject  of  the  permit 
declines  to  the  extent  that  continuation  of  the  permitted  activity  would  be  detrimental 
to  maintenance  or  recovery  of  the  affected  population. 


13 


68-366  -  93  -  7 


190 


(b)    Procedure  for  revocation. 

(1)  When  the  issuing  officer  believes  there  are  valid  grounds  for  revoking  a 
permit,  the  permittee  shall  be  notified  in  writing  of  the  proposed  revocation  by 
certified  or  registered  mail     This  notice  shall  identify  the  permit  to  be  revoked,  the 
reason(s)  for  such  revocation,  the  proposed  disposition  of  the  wildlife,  if  any,  and 
inform  the  permittee  of  the  right  to  object  to  the  proposed  revocation.    The  issuing 
officer  may  amend  any  notice  of  revocation  at  any  time. 

(2)  Upon  receipt  of  a  notice  of  proposed  revocation  the  permittee  may  file 
a  written  objection  to  the  proposed  action.    Such  objection  must  be  in  writing,  must 
be  filed  within  45  calendar  days  of  the  date  of  the  notice  of  proposal,    must  state  the 
reasons  why  the  permittee  objects  to  the  proposed  revocation,  and  may  include 
supporting  documentation. 

(3)  A  decision  on  the  revocation  shall  be  made  within  45  days  after  the  end 
of  the  objection  period.    The  issuing  officer  shall  notify  the  permittee  in  writing  of 
the  Service's  decision  and  the  reasons  therefore,  together  with  the  information 
concerning  the  right  to  request  and  the  procedures  for  requesting  reconsideration. 

(4)  Unless  a  permittee  files  a  timely  request  for  reconsideration,  any  wildlife 
held  under  authority  of  a  permit  that  is  revoked  must  be  disposed  of  in  accordance 
with  instructions  of  the  issuing  officer.    If  a  permittee  files  a  timely  request  for 
reconsideration  of  a  proposed  revocation,  such  permittee  may  retain  possession  of  any 
wildlife  held  under  authority  of  the  permit  until  final  disposition  of  the  appeal 
process. 

§  13.29       Review  procedures. 

(a)    Request  for  reconsideration.    Any  person  may  request  reconsideration  of 
an  action  under  this  pan  if  that  person  is  one  of  the  following: 

(1)  An  applicant  for  a  permit  who  has  received  written  notice  of  denial; 

(2)  An  applicant  for  renewal  who  has  received  written  notice  that  a  renewal 
is  denied; 

(3)  A  permittee  who  has  a  permit  amended,  suspended,  or  revoked,  except 
for  those  actions  which  are  required  by  changes  in  statutes  or  regulations,  or  are 
emergency  changes  of  limited  applicability  for  which  an  expiration  date  is  set  within 
90  days  of  the  permit  change;  or 

(4)  A  permittee  who  has  a  permit  issued  or  renewed  but  has  not  been 
granted  authority  by  the  permit  to  perform  ail  activities  requested  in  the  application, 
except  when  the  activity  requested  is  one  for  which  there  is  no  lawful  authority  to 
issue  a  permit. 


14 


191 


(b)  Method  of  requesting  reconsideration.    Any  person  requesting 
reconsideration  of  an  action  under  this  pan  must  comply  with  the  following  criteria: 

(1)  Any  request  for  reconsideration  must  be  in  writing,  signed  by  the  person 
requesting  reconsideration  or  by  the  legal  representative  of  that  person,  and  must  be 
submitted  to  the  issuing  officer. 

(2)  The  request  for  reconsideration  must  be  received  by  the  issuing  officer 
within  45  calendar  days  of  the  date  of  notification  of  the  decision  for  which 
reconsideration  is  being  requested. 

(3)  The  request  for  reconsideration  shall  state  the  decision  for  which 
reconsideration  is  being  requested  and  shall  state  the  reason(s)  for  the 
reconsideration,  including  presenting  any  new  information  or  facts  pertinent  to  the 
issue(s)  raised  by  the  request  for  reconsideration. 

(4)  The  request  for  reconsideration  shall  contain  a  certification  in 
substantially  the  same  form  as  that  provided  by  §   13.12(a)(5).    If  a  request  for 
reconsideration  does  not  contain  such  certification,  but  is  otherwise  timely  and 
appropriate,  it  shall  be  held  and  the  person  submitting  the  request  shall  be  given 
written  notice  of  the  need  to  submit  the  certification  within  15  calendar  days.    Failure 
to  submit  certification  shall  result  in  the  request  being  rejected  as  insufficient  in  form 
and  content. 

(c)  Inquiry  by  the  Service.    The  Service  may  institute  a  separate  inquiry  into 
the  matter  under  consideration. 

(d)  Determination  of  grant  or  denial  of  a  request  for  reconsideration.    The 
issuing  officer  shall  notify  the  permittee  of  the  Service's  decision  within  45  days  of  the 
receipt  of  the  request  for  reconsideration.    This  notification  shall  be  in  writing,  shall 
state  the  reasons  for  the  decision,  and  shall  contain  a  description  of  the  evidence 
which  was  relied  upon  by  the  issuing  officer.    The  notification  shall  also  provide 
information  concerning  the  right  to  appeal,  the  official  to  whom  an  appeal  may  be 
addressed,  and  the  procedures  for  malting  an  appeal. 

(e)  Appeal.    A  person  who  has  received  an  adverse  decision  following 
submission  of  a  request  for  reconsideration  may  submit  a  written  appeal  to  the 
Regional  Director  for  the  region  in  which  the  issuing  office  is  located,  or  to  the 
Director  for  offices  which  report  directly  to  the  Director.    An  appeal  must  be 
submitted  within  45  davs  of  the  date  of  the  notification  of  the  decision  on  the  request 
for  reconsideration.    The  appeal  shall  state  the  reason(s)  and  issue(s)  upon  which  the 
appeal  is  based  and  may  contain  any  additional  evidence  or  arguments  to  support  the 
appeal. 


15 


192 


(f)    Decision  on  appeal. 

(1)  Before  a  decision  is  made  concerning  the  appeal  the  appellant  may 
present  oral  arguments  before  the  Regional  Director  or  the  Director,  as  appropriate, 
if  such  official  judges  oral  arguments  are  necessary  to  clarify  issues  raised  in  the 
written  record. 

(2)  The  Service  shall  notify  the  appellant  in  writing  of  its  decision  within  45 
calendar  days  of  receipt  of  the  appeal,  unless  extended  for  good  cause  and  the 
appellant  notified  of  the  extension. 

(3)  The  decision  of  the  Regional  Director  or  the  Director  shall  constitute 
the  final  administrative  decision  of  the  Department  of  the  Interior. 

[47  FR  30786,  July  15,  1982,  as  amended  54  FR  38148,  Sept.  14,  1989.] 

Subpart  D  -  Conditions 

§13.41     Humane  conditions. 

Any  live  wildlife  possessed  under  a  permit  must  be  maintained  under  humane 
and  healthful  conditions. 

[47  FR  30786,  July  15,  1982,  as  amended  54  FR  38150,  Sept.  14,  1989.] 

§  13.42    Permits  are  specific. 

The  authorizations  on  the  face  of  a  permit  which  set  forth  specific  times, 
dates,  places,  methods  of  taking,  numbers  and  kinds  of  wildlife  or  plants,  location  of 
activity,  authorize  certain  circumscribed  transactions,  or  otherwise  permit  a  specifically 
limited  matter,  are  to  be  strictly  construed  and  shall  not  be  interpreted  to  permit 
similar  or  related  matters  outside  the  scope  of  stria  construction. 

[39  FR  1161,  Jan.  4,  1974,  as  amended  at  42  FR  32377,  June  24,  1977] 

§  13.43        Alteration  of  permits. 

Permits  shall  not  be  altered,  erased,  or  mutilated,  and  any  permit  which  has 
been  altered,  erased,  or  mutilated  shall  immediately  become  invalid.  Unless 
specifically  permitted  on  the  face  thereof,  no  permit  shall  be  copied,  nor  shall  any 
copy  of  a  permit  issued  pursuant  to  this  Subchapter  B  be  displayed,  offered  for 
inspection,  or  otherwise  used  for  any  official  purpose  for  which  the  permit  was  issued. 


16 


193 


§  13.44       Display  of  permit. 

Any  permit  issued  under  this  part  shall  be  displayed  for  inspection  upon 
request  to  the  Director  or  his  agent,  or  to  any  other  person  relying  upon  its  existence. 

§  13.45       Filing  of  reports. 

Permittees  may  be  required  to  file  reports  of  the  activities  conducted  under 
the  permit.  Any  such  reports  shall  be  filed  not  later  than  March  31  for  the  preceding 
calendar  year  ending  December  31,  or  any  portion  thereof,  during  which  a  permit  was 
in  force,  unless  the  regulations  of  this  Subchapter  B  or  the  provisions  of  the  permit 
set  forth  other  reporting  requirements. 

§  13.46       Maintenance  of  records. 

From  the  date  of  issuance  of  the  permit,  the  permittee  shall  maintain 
compiete  and  accurate  records  of  any  taking,  possession,  transportation,  sale,  purchase, 
barter,  exportation,  or  importation  of  plants  obtained  from  the  wild  (excluding  seeds) 
or  wildlife  pursuant  to  such  permit.  Such  records  shall  be  kept  current  and  shall 
include  names  and  addresses  of  persons  with  whom  any  plant  obtained  from  the  wild 
(excluding  seeds)  or  wildlife  has  been  purchased,  sold,  bartered,  or  otherwise 
transferre'd,  and  the  date  of  such  transaction,  and  such  other  information  as  may  be 
required  or  appropriate.  Such  records  shall  be  legibly  written  or  reproducible  in 
English  and  shall  be  maintained  for  five  years  from  the  date  of  expiration  of  the 
permit. 

[39  FR  1161,  Jan.  4,  1974,  as  amended  at  42  FR  32377,  June  24,  1977;  54  FR  38150, 
Sept.  14,  1989.] 

§  13.47    Inspection  requirement. 

Any  person  holding  a  permit  under  this  Subchapter  B  shall  allow  the 
Director's  agent  to  enter  his  premises  at  any  reasonable  hour  to  inspect  any  wildlife 
or  plant  held  or  to  inspect,  audit,  or  copy  any  permits,  books,  or  records  required  to 
be  kept  by  regulations  of  this  Subchapter  B. 

[39  FR  1161,  Jan.  4,  1974,  as  amended  at  42  FR  52377,  June  24,  1977] 

§   13.48      Compliance  with  conditions  of  permit. 

Anv  person  holding  a  permit  under  Subchapter  B  and  any  person  acting 
under  authority  of  such  permit  must  comply  with  all  conditions  of  the  permit  and  with 
all  applicable  laws  and  regulations  governing  the  permitted  activity. 


17 


194 


§  13.49       Surrender  of  permit. 

Any  person  holding  a  permit  under  Subchapter  B  shall  surrender  such  permit 
to  the  issuing  officer  upon  notification  that  the  permit  has  been  suspended  or  revoked 
by  the  Service,  and  all  appeal  procedures  have  been  exhausted. 

§  13.50      Acceptance  of  liability. 

Any  person  holding  a  permit  under  Subchapter  B  assumes  all  liability  and 
responsibility  for  the  conduct  of  any  activity  conducted  under  the  authority  of  such 
permit. 

[54  FR  38150,  Sept.  14,  1989.] 


18 


195 


United  States  Department  of  the  Interior 

IISH  AND  WILDLIFE  SERVICE 

DIVISION  OP  LAW  ENFORCEMENT 

Post   Offlee  Box  929 
Albuquorquo.  Now  Mexico  97109 

(505)    766-2091 


Federal  regulations  require  that  each  person  applying  for  eagle 
feathers  complete  three  (3)  forms.   These  are: 

1)  Federal  Fish  &  Wildlife  License/Permit  Application  (3-200) 

2)  Request  to  Receive  Eagle  Feathers  for  Use  in  Religious 
Ceremony (ies) 

3)  Certification  of  Enrollment  and  Participation 

These  three  (3)  forms  are  enclosed  for  you  to  complete  and  return  to 
this  office.  We  have  also  enclosed  the  regulations  that  pertain  to 
these  forms. 

r 
Due  to  the  number  of  requests  for  eagle  feathers,  each  order  is'limited 
to  one  (1)  eagle  or  the  equivalent  of  one  (1)  eagle.  Please  keep  in 
mind  that  there  are  usually  between  500  to  700  persons  on  the  waiting 
list  to  receive  a  whole  eagle.  It  may  take  up  to  24  months  to  fill  your 
order.  Please  note  that  you  may  only  have  one  order  pending  at  one 
time.  Any  other  requests  for  eagle  feathers  will  be  returned  to  the 
applicant.  In  addition,  please  keep  us  advised,  in  writing,  of  any 
address  or  phone  number  changes  so  that  we  can  contact  you  faster  when 
your  order  is  ready  to  be  shipped. 

If  you  have  any  questions  at  all  regarding  this  application  procedure, 
please  contact  this  office  at  the  above  address  or  phone  number. 

Sincerely  yours, 


[\£r»vJe 


Kamile.  McKeever 

Permits/Licenses  Administrator 
Law  Enforcement,  Region  2 


Enc 


196 


U.S.  DEPARTMENT  OF  INTERIOR 
FISH  AND  WILDLIFE  SERVICE 


HOW  EAGLE  FEATHERS  MAY  BE  OBTAINED  BY  INDIANS  FOR  RELIGIOUS  USE 

The  Federal  law  protecting  bald  and  golden  eagles  makes  provision  for 
use  of  eagle  .feathers  by  Indians  for  religious  purposes.  This  law  is 
administered  by  the  U.S.  Fish  and  Wildlife  Service.  From  time  to  time 
this  agency  acquires  eagle  feathers  in  connection  law  enforcement  and 
other  official  activities  and  these  feathers  may  be  provided  td  Indians 
for  religious  use  under  the  terms  of  a  valid  Federal  Fish  and  Wildlife 
permit. 

Application  for  a  permit  to  acquire  eagle  feathers  for  religious  use 
may  be  made  by  completing  the  enclosed  Federal  Fish  and  Wildlife 
License/Permit  application  form.  In  addition  to  this  permit  application 
form  you  must  also  provide  the  information  requested  on  the  enclosed 
forms  entitled  Request  to  Receive  Eagle  Feathers  for  Use  in  Religious 
Ceremony(ies)  AND  Certification  of  Enrollment  and  Participation. 

Please  return  completed  forms  to:   U.S.  Fish  and  Wildlife  Service 

Division  of  Law  Enforcement 
P.O.  Box  329 

Albuquerque,  New  Mexico   87103 
(505)  766-2091 

Please  keep  in  mind  that  the  National  Eagle  Repository  in  Ashland, 
Oregon  serves  Native  Americans  throughout  the  entire  50  states.  Due 
to  the  number  of  requests  for  eagles  and  parts,  each  request  is  LIMITED 
TO  ONE  (1)  EAGLE  OR  THE  EQUIVALENT  OF  ONE  (1)  EAGLE.  Please  note  that 
you  may  only  have  one  (1)  authorized  request  pending  at  one  time. 
Shipments  from  the  Repository  are  made  according  to  the  date  the 
application  is  received,  so  applicants  are  encouraged  to  return  the 
completed  forms  as  soon  as  possible.  In  addition,  please  us  advised  of 
any  address  or  phone  number  changes  in  order  to  avoid  delay  in 
processing  your  request. 

Copies  of  the  Bald   Eagle  Protection  Act  and  Feaeral  Regulations 
concerning   general  permit  procedures  and  eagle  permits 
(50  CFR  13  ana  22)  are  enclosed  for  your  information. 

For  further  information  or  assistance  contact  the  Assistant  Regional 
Director  for  Law  Enforcement  (ARD/LE)  at  the  above  address. 


197 


OMB  NO.  42-OI670 


^  U.S. 

FIHH  A  W1 LM  JFE 

SERVICE 


DEPARTMENT  OF  THE  INTERIOR 

U.S.  FISH  AND  WILDLIFE  SF.IVICF. 

FEDERAL  FISH  AND  WILDLIFE 
LICENSE/PERMIT  APPLICATION 


1    APPLICANT.   (Ifmma     comgfta  tddr*,*  and  pAorto  nvaUr  at  mdindutl. 
iuiitdi,   *|«nc»,   or  mifKoiio"  /or  vAicA  marmtt  ta  roqw**f*rf> 


1       APPLICATION    FOR   iVnd.c...  ori/p  on«, 


a 


MPORT  O  1  EXPORT  LICENSE 


& 


2.    BRIEF  DESCRIPTION  OF  ACTIVITY  FOR  WHICH  REOuESTED  LICENSE 
OR  PERMIT  IS  NEEDED. 


4.    IF  "APPLICANT"   IS  AN  INDIVIDUAL.  COMPLETE  THE  FOLLOWING- 


□  MR.      □  MRS.      □  MISS     Q  MS. 

HEIGHT 

WEIGHT 

OATE  OF  81RTH 

COLOR  HAIR 

COLOR  EYES 

phone  number  where  employed 

SOCIAL  SECURITY  NUMBER 

OCCUPATION 

5,    IF  '•APPLICANT'*  IS  A  BUSINESS.  CORPORATION.  PUBLIC  AQENpr. 
OR  INSTITUTION,  COMPLETE  THE  FOLLOWING 

EXPLAIN  TYPE  OR  KINO  OF  BUSINESS^   AGENCY.  OR    INSTITUTION 


ANY  BUSINESS.  AGENCY.  OR  INSTITUTIONAL  AFFILIATION  HAVING 

TO  DO  WITH  THE  WILDLIFE  TO  BE  COVERED  BY  THIS  LICENSE/PERMIT 


N/A 


NAME.  TITLE,  ANO  PHONE  NUMBER  OF  PRE5I0ENT,   PRINCIPAL 
OFFICER.  OIRECTOR,  ETC. 


IF  "APPLICANT"  IS  A  CORPORATION.   INDICATE  STATE  IN  WHICH 
INCORPORATED 


5     I.OCATION  WHERE  PROPOSED  ACTIVITY  15  TO  BE  CONDUCTED 


7.    DO  YOU  HOLD  ANY  CURRENTLY  VALID  FEDERAL  FISH  ANO 
WILDLIFE  LICENSE  OR  PERMIT?  Q  YES  □  MO 

III  fa,   hat  heanaa  or  aarmil  numbmrti 


8-    IF  REQUIRED  BY  Any  STATE  OR  FOREIGN  GOVERNMENT.  DO  YOU 
HAVE  THEIR  APPROVAL  TO  CONDUCT  THE  ACTIVITY  YOU 
PROPOSE?  O  VE5  Q  n0 

HI  r •*.    Im  imriadictioma  and  tjpa  of  documental 


9.    CERTIFIED  CHECK  OR  MONEY  ORDER  hi  lapt.cabt.,  PAYABLE  TO 
THE  U.S.  FISH  ANO  WILDLIFE  SERVICE  ENCLOSED  IN  AMOUNT  OF 


10.    DESIRED  EFFECTIVE 
OATE 


II.   DURATION  NEEDED 


12.    ATTACHMENTS     THE  SPECIFIC  INFORMATION  REOutRED  FOR  THE  TYPE  OF  LICENSE/ PERMIT  REQUESTEO  (Sam  SO  CfK  tl.MbU  MUST  BE 
ATTACMEO.   IT  CONSTITUTES  AN  INTEGRAL  PART  OF  THIS  APPLICATION.   LIST  SECTIONS  OF  SO  CFR  UNDER  WHICH  ATTACHMENTS  ARC 


PROviOEO. 


50  CFR  22.22 


CERTIFICATION 

I  HEREBY  CERTIFY  THAT  I  HAVE  REAO  AMD  AM  FAMILIAR  WITH  THE  REGULATIONS  CONTAINED  IN  TITLE  SO    PART I J   OF  THE  CODE  OF  FEDERAL 
REGULATIONS  AND  THE  OTHER  APPLICABLE  PARTS  IN  SUBCHAPTER  B  OF  CHAPTER  I  °/J"TLE  SO^AND  I  FUR™" CERTIFY  ™T  ™E J^*- 
MATION  SUBMITTED  IN  THIS  APPLICATION  FOR  A  LICENSE/PERMIT  IS  COMPLETE  AND  ACCURATE  TO  THE  BEST  OF  MY  KNOWLEDGE  ANO  BELIEF. 
I  UNDERSTAND  THAT  ANY  FALSE  STATEMENT  HEREIN  MAT  SUBJECT  ME  TO  THE  CRIMINAL  PENALTIES  OF  18  U.S.C  1001. 


SIGNATURE    {la  |»«) 


XX 

3-200 

16/741 


XX 


198 

Application  for  Federal  Fish  and  Wildlife  License/Permit 

NOTICE 

In  accordance  with  the  Privacy  Act  of  1974  (PL  93-579) ,  please  be  advised 
that: 

1.  The  gathering  of  information  on  fish  and  wildlife  is  authorized  by: 
(a)  Bald  Eagle  Protection  Act  (16  U.S. C.  663a),  (b)  Endangered 
Species  Act  of  1973  (16  U.S.C.  1539) ,  (c)  Migratory  Bird  Treaty 
Act  (16  U.S.C.  703-711),  (d)  Marine  Mammal  Protection  Act  of  1972 

(16  U.S.C.  1371-1383),  (e)  Iacey  Act  (18  U.S.C.  42  &  44),  (f) 
Tariff  Classification  Act  of  1962  (19  U.S.C.  1202),  and  (g)  Title 
50,  Part  13,  of  the  Code  of  Federal  Regulations. 

2.  The  disclosure  of  the  requested  information  is  required  in  order  to 
process  applications  for  licenses  or  permits  authorized  under  the 
above  acts.  With  the  exception  of  your  social  security  number, 
failure  to  disclose  all  of  the  requested  information  may  be  sufficient 
cause  for  the  U.S.  Fish  and  Wildlife  Service  to  deny  you  a  permit. 

3.  Applications  for  licenses  or  permits  authorized  under  the  Endangered 
Species  Act  of  1973  (16  U.S.C.  1539)  and  the  Marine  Mammal  Protection 
Act  of  1972  (16  U.S.C.  1371-1383)  will  be  published  in  the  Federal 
Register  as  required  by  the  two  acts. 

4.  In  the  event  there  is  indicated  a  violation  of  a  statute,  regulation, 
rule,  order,  or  license,  whether  civil,  criminal,  or  regulatory 

in  nature,  the  requested  information  may  be  transferred  to  the 
appropriate  Federal,  State,  local,  or  foreign  agency  charged  with 
investigating  or  prosecuting  such  violations. 

5.  In  the  event  of  litigation  involving  the  records  or  the  subject 
matter  of  the  records,  the  requested  information  may  be  transferred 
to  the  U.S.  Department  of  Justice. 

U.S.   mvrBNWNT  printinc,  orrici:   :    198?  n  -  36G-7M1 


199 


200 


RRQJIEST  TO  RECEIVE  EAGLE  PARTS/ FEATHERS  FOR  USE  IN  RELIGIOUS  CEREMONY ( IES) 


Please  provide  ALL  the  following  requested  information: 

1)  Species  (bald  or.  golden  eagle) ,  or  feathers  or  parts  requested.  Only 
OME  eagle  or  the  equivalent  of  ONE  eagle  per  order.  ONLY  ONE  ORDER  PENDING 
AT  A  TIME. 


ITEM 


]  Whole  Eagle 

]  Eagle  Tail 

]  Wing(s) 

]  Talon(s) 

]  Feathers 


SPECIES 

[  1  Golden 

[  1  Bald 

[  ]  Either 

[  ]  Other 


AGE 

[  ]  Adult 
I  ]  Immature 
[  ]  Either 


AMOUNT 

[  1  Pair 
[  ]  One 
[  1  


2)    Name  of  your  tribe. 


3)    Name  of   tribal  religious  ceremony ( ies)  in  which  eagle  or  parts  will  be 
used. 


4)  Certification  from  the  Bureau  of  Indian  Affairs  that  you  are  an  Indian 
has  been  submitted,  (see  Page  3)  YES^   ML. 

5)  Certification  from  a  duly  authorized  official  of  your  religious  group 
that  you  are  authorized  to  participate  in  ceremonies  has  been  submitted, 
(see  Page  3)       YES.  NO. 

6)  Name  of  TOWN  of  nearest  major  bus  line   (Greyhound,  Trailways)  where 
eagle  can  be   shipped. 

7)  Telephone  numbers   (yours,  friends,  relatives)  where  you  can  be  reached 
or  a  message  left  for  you  Monday  through  Friday,  between  8  and  4.   When  we 
are  ready   to  ship,  we  can  make  arrangements  much  faster  and  easier  by  phone 
than  by  mail.   Indicate  next  to  number,  the  location/person  to  which  phone 
number  belongs  (work,  home,  wife's  name) 

(INCLUDE  AREA  CODE  OF  PHONE  NUMBERS) 


YOU  MUST  NOTIFY  THIS  OFFICE,  IN  WRITING,  OF  ANY  ADDRESS  OR  TELEPHONE  NUMBER 
CHANGES.  IF  THE  REPOSITORY  IS  UNABLE  TO  CONTACT  YOU,  YOUR  ORDER  WILL  BE 
PLACED  ON  INACTIVE/ ABANDONED  STATUS. . . 


201 

U.S.  DEPARTMENT  OF  INTERIOR 
FISH  AND  WILDLIFE  SERVICE 

CERTIFICATION  OF  ENROLLMENT  AND  PARTICIPATION 


The  Federal  law  protecting  bald  and  golden  eagles  makes  provision  for 
the  use  of  eagle  feathers  by  Indians  for  religious  purposes.  This  law 
is  administered  by  the  U.S.  Fish  and  Wildlife  Service.  From  time  to 
time  this  Agency  acquires  eagle  feathers  in  connection  with  law 
enforcement  and  other  official  activities  and  these  feathers  may  be 
provided  to  Indians  for  religious  use  under  the  terms  of  a  valid  Fish 
and  Wildlife  Service  permit. 

Application  for  a  permit  to  acquire  eagle  feathers  for  religious  use 
requires  certification  from  the  Bureau  of  Indian  Affairs  that  the 
person  requesting  feathers  is  an  enrolled  member  of  a  tribe.  As  a 
representative  of  the  BUREAU  OF  INDIAN  AFFAIRS.  please  complete  the 
following  certification  statement  and  return  it  to  the  applicant  for 
submission  with  his/her  application. 

I  hereby  certify  that  is  an 

enrolled  member   of  the  Tribe.   I 

understand  that  the  making  of  a  false  statement  may  subject  me  to  the 
criminal  penalties  of  18  USC  1001. 

SIGNED:    

BIA   TITLE:     

DATE:      


Application  for  a  permit  to  acquire  eagle  feathers  to  religious  use 
also  requires  certification  from  a  DULY  AUTHORIZED  OFFICIAL  OF  THE 
TRIBAL  RELIGIOUS  GROUP  that  the  applicant  is  authorized  to 
participate  in  tribal  ceremonies.  As  an  official  of  the  tribal 
religious  group,  please  complete  the  following  certification  statement 
and  return  it  to  the  applicant  for  submission  with  his/her  application. 

I  hereby  certify  that is  a 

member  of   the  Tribe,  and  requires 

eagle  feathers  to  participate  in  religious  ceremonies  of  the  Tribe.  I 
understand  that  the  making  of  a  false  statement  may  subject  me  to  the 
criminal  penalties  of  18  USC  1001. 


SIGNED: 
RELIGIOUS  TITLE: 
DATE: 


202 


United  States  Department  of  the  Interior 

FISH  AND  WILDLIFE  SERVICE 

0IVI8ION  Of   LAW  ENFORCEMENT 

Post  Offlo*  Box  320 
Albuqu«rqu«,  New  Mexico  87103 


INFORMATION  ON  EAGLES  AND  EAGLE  PARTS  POSSESSED  AND  USED  BY 
NATIVE  AMERICANS  FOR  RELIGIOUS  PURPOSES 


BACKGROUND;  Both  species  of  North  American  eagles,  the  bald  eagle 
(Haliaeetus  leucoceohalus)  and  the  golden  eagle  (Aquila  chrysaetos)  are 
protected  by  several  federal  laws  and  regulations.  They  are  afforded 
protection  under  the  Migratory  Bird  Treaty  Act  (18  USC  703-712)  and  the 
Eagle  Act  (16/USC  668).  In  addition,  the  bald  eagle  is  also  protected 
under  the  Endangered  Species  Act  of  1973  (16  USC  1531-1543) .  Even 
though  the  eagles  are  fully  protected  under  these  federal  laws,  there 
are  exceptions  or  exemptions  within  several  of  these  statutes  that 
allow  or  permit  certain  activities  by  Native  American  Indians  when  such 
activities  are  related  to  a  religious  use  or  purpose. 

What  can  and  cannot  be  done  regarding  eagles  and  eagle  parts  is 
outlined  below.  These  authorized  activities  are  either  permitted  by 
federal  law  and/or  authorized  by  implementing  regulations  or 
enforcement  policies  of  the  U.S.  Fish  and  Wildlife  Service. 

WHAT  YOU  "CAN*  DO:  If  you  are  a  Native  American  Indian  and  are  using 
eagle  feathers  or  other  eagle  parts  for  a  bona  fide  religious  purpose, 
you  may: 

1)  Possess,  receive  from  or  transfer  to  other  Native  American 
Indians  who  reside  within  the  United  States,  eagle  feathers  or 
parts  that  are  currently  lawfully  possessed.  NO  PERMIT  IS 
REQUIRED  FOR  SUCH  POSSESSION,  RECEIPT  OR  TRANSFER. 

2)  Request  and  receive  eagle  feathers  or  their  parts  from 
the  Fish  and  wildlife  Service  by  contacting  the  appropriate 
office  for  the  state  in  which  you  reside.  Each  of  these 
office  oversees  a  program  of  eagle  feather  and  part 
distribution  to  Native  American  Indians  for  religious 
purposes.  The  attached  list  shows  the  office  locations  and 
states  under  their  jurisdiction. 

This  program  of  providing  eagles  or  eagle  feathers  to  Native  American 
Indians  utilizes  feathers  from  eagles  that  have  died  of  natural  causes 
or  which  have  been  confiscated  as  a  result  of  some  illegal  activity. 
While  some  delays  exist  from  time  of  request  to  actual  receipt  of  these 
feathers  and  parts,  the  program  does  provide  a  source  of  eagle  feathers 
and  eagle  parts  for  religious  purposes  without  having  to  kill  eagles. 


203 


WHAT  YOU  'CANNOT*  DO;     No  one,  Indian  or  non-Indian,  may: 

1)  Kill   eagles,   either   on  or  off  a  reservation,  without 
first  applying  for  and  obtaining  a  permit  from  the  Fish  and 
Wildlife  Service.    Since   the  Fish  &  Wildlife  Service  has  in 
place  a  program  to  provide  eagle  carcasses  and  feathers  to 
Native  American  Indians,  permits  to  kill   eagles   are   seldom,  if 
ever,  issued. 

2)  Sell  to  or  purchase  from  any  person,  Indian  or  non- 
Indian,  eagle  feathers  or  other  eagle  parts,  or  items 
containing  eagle  feathers  or  parts,  such  as  prayer  feathers, 
Kachina  dolls,  bustles,  fans,  etc. 

3)  Transfer  or  give  eagles,  eagle  feathers,  or  other  eagle 
parts  t'o  non-Indian  even  though  they  may  be  members  of  the 
Native  American  Church  of  North  AMerica. 

4)  Import  into  or  export  from  the  United  States,  eagles, 
eagle  feathers  or  other  eagle  parts.  Some  exceptions  are 
made  for  ceremonial  and  religious  items  that  are  taken  out  of 
the  United  States  and  then  returned  in  connection  with  a  bona 
fide  exhibition.  The  Fish  and  Wildlife  Service  office  for 
your  state  can  provide  specific  information.  You  may  not 
lawfully  take  prayer  feathers  or  other  items  containing  eagle 
feathers  out  of  the  United  States  as  gifts  for  persons  in 
foreign  countries,  nor  may  you  receive  as  gifts  and  return  to 
the  United  States  from  a  foreign  country  any  eagle  feathers 
or  any  items  containing  eagle  feathers. 

The  same  general  prohibitions,  or  what  you  "can*  do  and  "cannot"  do 
with  eagle  feathers  or  other  eagle  parts  also  applies  to  the  feathers 
or  parts  of  all  hawks,  owls,  scissor-tailed  flycatchers,  flickers,  and 
other  migratory  birds.  Again,  your  Fish  and  wildlife  Service  office 
can  give  you  specific  information. 

THE  ABOVE  INFORMATION  IS  VERY  GENERAL  AND  IS  INTENDED  TO  PROVIDE 
GUIDELINES  ONLY. 

This  is  not  a  legal  document  and  any  specific  questions  regarding  the 
Migratory  Bird  Treaty  Act,  Eagle  Act,  or  Endangered  Species  Act  as  they 
apply  to  Native  American  Indians  should  be  directed  to  the  appropriate 
Fish  and  Wildlife  Service  office  as  shown  on  the  attached  list. 

REMEMBER,  the  Fish  and  Wildlife  Service  has  an  active  program  in  place 
whereby  Native  American  Indians  may  obtain  eagles  and  eagle  feathers 
for  religious  purposes.  You  can  receive  details  about  this  program  by 
contacting  the  appropriate  Fish  and  Wildlife  office  as  shown  on  the 
attached  list. 


204 


United  States  Department  of  the  Interior    fs-ii   April  75 


FISH  ANO  WILDLIFE  SERVICE 
WASHINGTON,  DC  20240 


Feathers  and  Federal  Law 


This  fact  sheet  is  designed  to  answer  the  most  frequently  asked  ques- 
tions concerning  Federal  laws  regulating  commercial  traffic  in  items 
m?-.,e  from  the  feathers  and  parts  of  certain  Federally  protected  birds. 
It  is  especially  directed  at  persons  engaged  in  the  sale,  trade  or 
barter  of  feathered  Indian  art  objects,  artifacts,  antiques,  curios  and 
other  goods  from  trading  posts,  curio  shops,  antique  shops,  pawn  shops 
and  other  retail  outlets. 

What  species  of  birds  are  protected  by  Federal  law? 

The  Migratory  Bird  Treaty  Act  offers  protection  to  all  wild  birds  found 
commonly  in  the  United  States,  except  the  house  sparrow,  starling,  feral 
pigeon,  and  resident  game  birds  such  as  pheasant,  grouse,  quail,  wild 
turkeys,  etc.  Resident  game  birds  are  managed  by  the  separate  States, 
and  may  be  taken  and  their  feathers  and  parts  utilized  as  prescribed  by 
State  law.  A  reference  list  of  migratory  birds  can  be  found  1n  Title 
50,  Code  of  Federal  Regulations,  Part  10.  The  Bald  Eagle  Protection  Act 
affords  additional  protection  to  all  bald  and  golden  eagles.  Addition- 
ally,  some  species  of  migratory  birds  are  provided  further  protection  by 
the  Endangered  Species  Act  of  1973. 

What  activities  do  these  laws  prohibit? 

The  Migratory  Bird  Treaty  Act  makes  it  unlawful  for  anyone  to  kill, 
capture,  collect,  possess,  buy,  sell,  trade,  ship,  Import  or  export  any 
■igratory  bird,  Including  feathers,  parts,  nests  or  eggs,  unless  the 
person  first  obtains  an  appropriate  Federal  permit  in  compliance  with 
Federal  regulations  on  migratory  birds  (see  50  CFR  Part  21).  The  Bald 
Eagle  Protection  Act  likewise  prohibits  all  commercial  activities  in- 
volving bald  or  golden  eagles,  including  their  feathers  or  parts. 

Some  migratory  game  birds  may  be  lawfully  hunted  during  specified  periods 
but  may  not  be  sold.  Annually  published  Federal  hunting  regulations  (50 
CFR  Part  20)  impose  limits  on  the  number  and  kinds  of  birds  that  can  be 
taken,  and  control  the  manner,  means  and  open  seasons  within  which  such 
taking  Is  lawful. 


205 


What  types  of  tr^ditiona 1  Indian  curios  and  artifacts  are   affected  by 
these  prohibitions? 

Any  Indian  curios  or  artifacts  that  art:   made  of  or  decorated  with  migra- 
tory bird  feathers  are  included  within  these  prohibitions.  Among  the 
mere  cannon  articles  decorated  with  feathers  or  parts  of  birds,  but  by 
no  means  all  such  items,  are:  headdresses,  bonnets,  hats,  fans,  pipes, 
necklaces,  Kachina  dolls,  lances,  bustles,  musical  instruments  and 
various  articles  of  clothing. 

Why  does  the  federal  government  prohibit  commercial  traffic  in  the 
feathers  and  parts  of  eagles  and  migratory  birds? 

Because  migratory  birds  cross  International  boundaries  in  many  cases, 
they  are  considered  an  international  resource  that  must  be  protected 
from  commercial  exploitation.  The  Migratory  Bird  Treaty  Act,  passed  in 
1918  and  subsequently  amended,  implements  treaties  for  the  protection  of 
migratory  species  signed  with  Great  Britain  (for  Canada),  Mexico  and 
Japan.  The  Bald  Eagle  Protection  Act  was  passed  in  1940  to  protect  our 
national  bird,  which  at  the  time  was  rapidly  declining  in  numbers.  The 
golden  eagle  was  given  protection  under  the  Bald  Eagle  Protection  Act  In 
1962.  In  1972,  an  amendment  to  the  treaty  with  Mexico  also  included 
eagles  as  migratory  birds,  and  afforded  these  birds  protection  under  the 
Migratory  Bird  Treaty  Act.  ' 

As  the  popularity  of  American  Indian  artifacts  has  increased  in  recent 
years,  a  lucrative  market  has  developed  for  the  eagle  and  migratory  bird 
feathers  used  to  make  or  decorate  many  Indian  curios  and  art  objects. 
The  result  has  been  the  slaughter  of  thousands  of  birds  to  fill  this 
demand  for  feathers,  and  other  parts  such  as  beaks,  bones  and  talons. 
The  prohibitions  against  commercial  traffic  in  eagles  and  migratory 
birds  are  intended  to  eliminate  any  market  for  the  birds  themselves,  or 
for  their  feathers  and  parts. 

Can  permits  be  obtained  to  sell  curios  and  artifacts  made  with  the 
feathers  and  parts  of  protected  birds? 

No.  The  Department  of  the  Interior  firmly  believes  that  to  carry  out 
the  objectives  of  the  law,  it  must  totally  deny  a  marketplace  for  mi- 
gratory birds  Including  eagles.  If  such  markets  were  allowed  to  exist. 
Individuals  would  be  prompted  to  supply  the  demand  for  protected  birds 
by  killing  them  Illegally. 

What  If  an  Item  is  a  genuine  antique? 

The  sale,  purchase  or  barter  of  any  protected  bird,  or  article  made  from 
the  feathers  or  parts  of  protected  birds,  is  prohibited  no  matter  when 
the  bird  was  killed  or  possessed.  Thus,  even  genuine  antique  Indian  art 
objects,  if  they  are  made  with  feathers  or  parts  of  protected  birds,  may 
not  be  sold  or  purchased. 


206 


Some  manjfacturers'of  Indian  cjrics,  -n  order  to  increase  the  value  of 
their  merchandise,  have  been  known  to  clip  or  otherwise  alter  the  ap- 
pearance of  feathers  to  make  then  look  old.  The  1tsm  1s  then  sold  as  an 
"antique."  A  fraudulent  "history"  may  even  be  fabricated  to  further 
enhance  Its  value.  Once  the  appearance  of  bird  feathers  has  been  so 
altered,  1t  >s  extremely  difficult  to  tell  them  from  genuine  antiques. 
This  1s  one  very  telling  reason  for  prohibiting  the  saie  of  antique 
Indian  artii^os  mete  w'ti  Iht  ts-.thers  or  parts  of  protected  bini;. 

Can  a  person  sell  items  maoe  fror.  feathers  of  birds  found  dead  in  the 
wile,  or  which  »..-e  killeJ  accdei'tally? 

Mo  exception  frvra  the  prohibitions  of  the  law  Is  made  for  the  commercial 
use  of  featners  or  parts  of  protected  biros  found  dead  in  the  wild, 
those  killed  accidentally  (sucli  as  road  kills),  or  those  electrocuted  by 
power  lines,  even  though  large  numbers  of  birds  that  die  from  such  causes 
could  probably  be  salvaged.  This  prohibition  ensures  that  individuals 
will  not  deliberately  kill  birds  for  their  own  personal  use,  under  the 
gui-Je  that  "they  were  found  dead."  The  fact  tnat  increasing  numbers  of 
protected  birds  are  being  killed  each  year,  and  their  feathers  or  parts 
sold  for  personal  gain,  makes  it  Imperative  that  the  Federal  government 
prohibit  the  possession  of  salvaged  dead  specimens  without  the  proper 
penrlts. 

Are  there  any  legally  recognized  commercial  uses  of  feathers  or  parts 
of  protected  bird s~P 

As  a  general  rule,  feathers  or  parts  of  migratory  birds  or  eagles  may 
not  be  sold,  traded  or  bartered  or  offered  for  sale.  However,  these 
items  nay  be  displayed  (wltnoui  price  tags)  In  shops  or  at  shows  and 
powwows.  In  addition,  any  person  may  possess,  purchase,  sell,  barter, 
or  transport  for  the  making  of  fishing  flies,  bed  pillows  and  mattresses 
and  for  similar  totnmercial  uies,  the  feathers  of  migratory  watorfcwl 
(wild  ducks,  geese,  brant  and  swans)  legally  taken  in  accordance  with  50 
CFR  Part  20. 

What  other  Kinds  of  feathers  can  be  legally  bought  and  sold? 

Feathers  obtained  from  the  following  sources  could  be  used  to  manufacture 
Items  for  sale,  provided  that  manufacturers  comply  with  all  applicable 
itate  laws: 

1.  Domesticated  species  ?uch  as  chickens,  turkeys,  ducks,  geese 
and  guinea  fowl. 

2.  Resident  game  birds  such  as  pheasant,  grouse,  quail,  wild 
turkey,  ate,  when  taken  with  the  appropriate  license  during 
game  season. 


-  3 


207 


3.  Non-native  species  held  in  zoos  or  private  collections. 

4.  Unprotected  species  such  as  the  house  sparrow,  starling,  and 
rode  dove  (pigeon). 

Can  an  individual  wake  items  from  the  feathers  of  protected  birds  for 
his  own  personal  use"? 

Any  person  for  his  own  use  may  possess,  transport,  and  ship,  without  a 
permit,  the  feather? ,  parts  and  skins  of  lawfully  taken  migratory  game 
birds.  A  permit  is  required  for  import  or  export.  While  feathers  and 
ports  of  migratory  nonqame  birds,  bald  eagles  and  golden 'eagles  may  not 
be  possessed  by  any  person  without  appropriate  Federal  permits  unless 
the  feathers  or  parts  were  acquired  prior  to  the  date  when  Federal  pro- 
tection was  provided  for  individual  species  (see  below),  it  is  the 
current  policy  of  the  Department  of  the  Interior  not  to  take  legal 
action  against  any  American  Indian  who  merely  possesses  migratory  bird 
or  eagle  feathers.  This  is  1n  recognition  of  the  role  that  migratory 
bird  feathers  have  in  American  Indian  religious  practices.  We  stress, 
however,  that  the  Department  is  not  authorizing  commercial  traffic  in 
protected  birds  and  their  parts,  even  among  Indians. 

As  noted  above  all_  persons  are  allowed  to  possess  or  transport,  but  not 
sell,  feathers  or  parts  of  protected  birds,  if  the  birds,  feathers  or 
parts  were  lawfully  obtained  prior  to  the  date  the  species  in  question 
was  first  protected  by  Federal  law.  The  bald  eaglp  has  been  protected 
since  1940;  the  golden  eagle  since  1962.  The  firs,  migratory  birds  were 
protected  in  19]8;  however,  numerous  amendments  to  the  Migratory  Bird 
Treaty  Act  have  since  protected  additional  species.  Please  check  with 
the  Special  Agent  in  Charge  of  the  U.S.  Fish  and  Wildlife  Service  Law 
Enforcement  District  serving  your  area,  to  find  out  when  a  particular 
species  was  first  afforded  protection. 

Is  there  any  oti\er  way  In  which  an  individual  can  legally  acquire 
■iqratory  bird  feathers 7  ~ 

Permits  are  obtainable  which  authorize  the  taking  of  migratory  birds, 
and  their  feathers,  parts,  nests  or  eggs,  for  bona  fide  scientific  or 
educational  purposes.  Such  projects  must  be  amply  justified  and  the 
collector's  ornithological  qualifications  established.  No  such  permits 
are  issued  for  personal  or  hobby  purposes.  In  addition,  there  are 
certain  other  activities  involving  migratory  birds,  such  as  the  salvage 
of  sick,  injured  or  dead  birds;  experimental  breeding  of  migratory  game 
birds  other  than  waterfowl;  or  unusual  possession,  transportation  or 
display  requirements,  for  which  special  purpose  permits  may  be  Issued. 
Migratory  bird  permit  applications  should  be  directed  to  the  Special 
Agent  In  Charge  of  the  Fish  and  Wildlife  Service  Law  Enforcement  01str1ct 
serving  your  area. 


208 


Important  Note:  All  States  have  identical  or  similar  protective  pro- 
7isions  for  most  migratory  birds.  In  most  cases,  States  likewise  re- 
quire permits  to  take,  possess,  buy  or  sell  migratory  birds' and  tneir 
feathers  or  parts.  Federal  permits  are  not  valid  without  a  corresponding 
State  permit,  1f  required.  It  is  important,  therefore,  to  check  with 
State  wildlife  or  conservation  authorities  concerning  their  restrictions, 
before  applying  for  a  Federal  permit. 

Indians  require  the  feathers  of  protected  birds  for  use  in  their  religious 
or  cultural  activities.  How  can  they  obtain  fcathers~fo"r  these  purposes? 

American  Indians  may  possess,  carry,  use,  wear,  give,  loan  or  exchange 
a^ong  other  Indians,  but  without  compensation,  all  Federally  protected 
birds,  as  well  as  their  parts  or  feathers.  American  Indians  who  wish  to 
possess  bird  feathers  or  parts  to  be  worked  on  by  tribal  craftsmen  for 
eventual  use  in  Indian  religious  or  cultural  activities  may  transfer 
such  feathers  or  parts  to  tribal  craftsmen  without  charge,  but  such 
craftsmen  may  be  compensated  for  their  work. 

In  addition,  American  Indians  can  obtain  feathers  and  parts  of  bald  or 
golden  eagles  for  use  In  bona  fide  religious  ceremonies.  Free  permits 
for  distribution  of  eagle  feathers  for  religious  purposes  are  available 
froa  the  U.S.  Fish  and  Wildlife  Service.  The  Service  salvages  the 
remains  of  eagles  killed  in  the  wild,  or  which  die  naturally  in  zoos, 
for  distribution  to  Indians  for  religious  purposes  from  a  ne\/ly  estab- 
lished repository  in  Pocatello,  Idaho.  Eagle  fcatKirs.  howevor,  «vc  ret 
obtainable  from  this  source  for  sale  or  other  com:  . c i a  1  activities. 

Information  on  how  to  apply  for  eagle  feather  permits  can  be  obtained  by 
writing  to  the  Special  Agent  in  Charge  of  the  Fish  and  Wildlife  Service 
Law  Enforcement  District  serving  your  area. 

What  other  bird  feathers  could  be  used  by  Indians  for  religious  or 
cultural  purposes?- 

Feathers  from  the 'following  sources  are  also  available  to  Indians  for 
religious  or  cultural  use,  but  they  cannot  be  sold: 

1.  Wild  migratory  game  species  such  as  ducks,  geese,  swans, 
doves,  pigeons,  rails,  snipe,  woodcock  and  cranes.  These 
birds  could  be  taken  during  open  seasons  with  the  proper 
license,  and  their  feather?  utilized. 

2.  Captive- reared  migratory  game  birds  such  as  ducks,  geese, 
swans,  doves  and  pigeons. 

3.  Various  species  taken  in  accordance  with  Federal  regulations 
on  depredation  control  (see  section  20.43  of  50  CFR  Part  20), 
such  as  blackbirds,  cowbirds,  grackles,  crows  and  magpies. 


209 


Can  any  other  individuals  obtain  eagle  feathers? 

Yes.  Permits  are  available  authorizing  qualified  individuals  to  take, 
possess,  or  transport  bald  or  golden  eagles  or  their  parti,  nests  or 
eggs,  for  the  scientific  or  exhibition  purposes  of  public  .ituseums, 
pub'ic  scientific  societies,  or  public  zoological  parks. 

Wl.at  are  the  penalties  for  violating  Federal  laws  protecting  eagles  and 
migratory  birds? 

The  Miu"atory  Bird  Treaty  Act  provides  for  penalties  of  up  to  $2,000  and 
twu  years  imprisonment  for  persons  convicted  of  selling  protected  birds, 
or  their  feathers  or  parts.  For  first  offenses,  the  Bala  Eagle  Protection 
Act  carries  a  maximum  criminal  penalty  of  a  $5,000  fine  and  one  year  in 
prison  for  persons  convicted  of  selling  eagles,  or  their  feathers  or 
parts.  The  penalty  for  second  offenses  is  a  $10,000  fine  and  two  years 
imprisonment. 

The  Endangered  Species  Act  ov  1973  carries  a  maximum  penalty  of  $20,000 
and  one  year  imprisonment  for  criminal  offenses. 

FOR  MORE  COMPLETE  INFORMATION,  CONTACT  THE  SPECIAL  AGENT  IN  CHARGE  OF 
THE  U.S.  FISH  AND  WILDLIFE  SERVICE'S  LAW  ENFORCEMENT  DISTRICT  SERVING 
YOUR  AREA. 


If  you  reside  in: 


Please  contact: 


DISTRICT  OVIOS 

assistant  rhtickal  director/lait  BffCRCwxr  urdajd 


DISTRICT  1. 
California.  Hawaii,  Idaho 
Nevada,  Oregon,  Washington: 
911  NE  HUi  Avenue 
Portland,  OR    97232-4181 
(503)  231-6125 


DISTRICT  5. 
Connecticut,  District  of 
Columbia,  Delaware,  Maine, 
Maryland,  Massachusetts, 
Nev  Hampshire,  New  Jersey, 
Hew  York,  Pennsylvania. 
Rhode  Island,  Vermont, 
Virginia,  West  Virginia: 
P.O.  Box  129 
lev  Town  Branch 
Soston.  MA    02258 
(617)   965-2298 


DISTRICT  2. 
Arizona,  New  Mtxico 
Oklahoma,  Texas 
P.O.  Box  329 
Albuquerque.  SM    87103 
(505)  766-2091 


DISTRICT  6. 
Colorado,  Kansas,  Montana, 
Nebraska.  North  Dakota. 
South  Dakota,  Utah,  Wyoming: 
P.O.  Box  25486 
Denver  Federal  Center 
Denver.  00    80225 
(303)  236-7540 


DISTRICT  3. 
Illinois,  Indiana,  Iowa, 
Michigan,  Minnesota, 
Missouri,  Ohio,  Wisconsin: 
P.O.  Box  45 
Fed.  Bldg.,  Ft.  Snell 
Twin  Cities,  HN    55111 
(612)  725-3530 

DISTRICT  7. 
Alaska: 

P.O.  Box  92597 
Anchorage,  AX     99509-2597 
(907)  786-3311 


DISTRICT  4. 
Alabama,  Arkansas,  Florida, 
Georgia.  Kentucky,  Louisiana, 
Mississippi,  North  Carolina, 
Puerto  Rico,  South  Carolina, 
Tennessee: 
P.O.  Box  4839 
Atlanta,  GA    30302 
(404)  331-5872 


210 


BALD  EAGLE  PFCTECTION  ACT 
16  U.S.C.   668-668c 


5  668.  Bold  and  golden  eaglee 

(a)  Prohibited  acts;  criminal  penalties 

Whoever,  within  the  United  States  or  any 
place  subject  to  the  Jurisdiction  thereof,  with- 
out being  permitted  to  do  so  as  provided  in  this 
subchapter,  shall  knowingly,  or  with   wanton 
disregard  for  the  consequences  of  his  act  take, 
possess,  sell,  purchase,  barter,  offer  to  sell,  pur- 
chase or  barter,  transport,  export  or  Import,  at 
any  time  or  In  any  manner  any  bald  eagle  com- 
monly  known  as   the   American  eagle  or  any 
golden  eagle,  alive  or  dead,  or  any  part.  nest,  or 
egg  thereof  of  the  foregoing  eagles,  or  whoever 
violates  any  permit  or  regulation  Issued  pursu- 
ant to  this  subchapter,  shall  be  fined  not  more 
than  $5,000  or  Imprisoned  not  more  than  one 
year  or  both:  Provided,  That  In  the  case  of  a 
second  or  subsequent  conviction  for  a  violation 
of   this   section   committed   after   October   23. 
1972.  such  person  shall  be  fined  not  more  than 
J  10.000  or  imprisoned  not  more  than  two  years, 
or  both:  Provided  further.  That  the  commission 
of  each  taking  or  other  act  prohibited  by  this 
section  with  respect  to  a  bald  or  golden  eagle 
shall  constitute  a  separate  violation  of  this  sec- 
tion:  Provided  further.  That  one- half   of  any 
such  fine,  but  not  to  exceed  82.500.  shall  be 
paid  to  the  person  or  persons  giving  Informa- 
tion which  leads  to  conviction:  Provided  fur- 
ther. That  nothing  herein  shall  be  construed  to 
prohibit  possession  or  transportation   of   any 
bald  eagle,  alive  or  dead,  or  any  part.  nest,  or 
egg  thereof,  lawfully   taken  prior  to  June  8. 
1940.  and  that  nothing  herein  shall  be  con 
strued  to  prohibit  possession  or  transportation 
of  any  golden  eagle,  alive  or  dead,  or  any  part, 
nest,  or  egg  thereof,  lawfully  taken  prior  to  the 
addition  to  this  subchapter  of  the  provisions  re- 
lating to  preservation  of  the  golden  eagle. 

lb)  Civil  penaltie* 

Whoever,  within  the  United  Slutes  or  any 
place  subject,  to  the  Jurisdiction  thereof,  with- 
out being  permitted  to  do  so  as  provided  In  this 
subchapter,  shall  take,  possess,  sell,  purchase, 
barter,  offer  to  sell,  purchase  or  barter,  trans- 
port, export  or  import,  at.  any  time  or  In  any 
manner,  any  bald  eagle,  commonly  known  as 
the  American  eagle,  or  any  golden  eagle,  alive 
or  dead,  or  any  part.  nest,  or  egg  thereof  of  the 
forrgolng  eagles,  or  whoever  violates  any 
permit  or  regulation  Issued  pursuant  to  this 
subchapter,  may  be  assessed  a  civil  penalty  by 
the  Secretary  of  not  more  than  J5.000  for  each 
sueh  violation.  Each  violation  shall  be  a  sepa- 
rate offense.  No  penalty  shall  be  "assessed 
unless  such  person  is  given  notice  and  opportu- 
nity for  a  hearing  with  respect  to  such  viola- 
tion. In  determining  the  amount  of  the  penalty, 
the  gravity  of  the  violation,  and  the  demon- 
strated good  faith  of  the  person  charged  shall 
be  considered  by  the  Secrctarv.  For  good  cause 


shown,  the  Secretary  may  remit  or  mitigate 
any  sueh  penalty.  Upon  any  failure  to  pay  the 
penalty  assessed  under  this  section,  the  Secre- 
tary may  request  the  Attorney  Oeneraj  to  Insti- 
tute a  civil  action  In  a  district  court  of  the 
United  States  for  any  district  In  which  such 
person  Is  found  or  resides  or  transacts  business 
to  collect  the  penalty  and  such  court  shall  have 
Jurisdiction  to  hear  and  decide  any  such  action. 
In  hearing  any  such  action,  the  court  must  sus- 
tain the  Secretary's  action  If  supported  by  sub- 
stantial evidence. 

(c)  Cancellation  of  grazing  agreements 

The  head  of  any  Federal  agency  who  has 
Issued  a  lease,  license,  permit,  or  other  agree- 
ment authorizing  the  grazing  of  domestic  live- 
stock on  Federal  lands  to  any  person  who  Is 
convicted  of  a  violation  of  this  subchapter  or  of 
any  permit  or  regulation  issued  hereunder  may 
Immediate!:'  «-ancel  each  such  lease,  license, 
permit,  or  other  agreement.  The  United  States 
shall  not  be  liable  for  the  payment  of  any  com- 
pensation, reimbursement,  or  damages  In  con- 
nection with  the  cancellation  of  any  lease,  li- 
cense, permit,  or  other  agreement  pursuant  to 
this  section. 

(June  8.  1940.  ch.  278.  1 1.  94  Stat.  280:  June  25. 
1969.  Pub.  L.  88-70.  ?  14.  73  Stat.  143:  Oct.  24. 
1962.  Pub.  L.  87-884.  78  Stat.  1248:  Oct  23 
1»72.  Pub.  L.  92-535.  f  1.  88  Stat.  1084.) 


f  ***«.  Taking  and  uaing  of  the  bald  and  golden  eagle 
for  acienUAc.  exhibition)  and  nrilgioua  pwrpoece 

Whenever,  after  Investigation,  the  Secretary 
of  the  Interior  shall  determine  that  it  is  com- 
patible with  the  preservation  of  the  bald  eagle 
or  the  golden  eagle  to  permit  the  taking,  pos- 
session, and  transportation  of  specimens  there- 
of for  the  scientific  or  exhibition  purposes  of 
public  museums,  scientific  societies,  and  zoolo- 
gical parks,  or  for  the  religious  purposes  of 
Indian  tribes,  or  that  it  Is  necessary  to  permit 
the  taking  of  such  eagles  for  the  protection  of 
wildlife  or  of  agricultural  or  other  Interests  In 
any  particular  locality,  he  may  authorize  the 
taking  of  such  eagles  pursuant  to  regulations 
which  he  Is  hereby  authorized  to  prescribe:  Pro- 
vided, That  on  request  of  the  Oovemor  of  any 
State,  the  Secretary  of  the  Interior  shall  autho- 
rise the  taking  of  golden  eagles  for  the  purpose 
of  seasonally  protecting  domesticated  flocks 
and  herds  In  such  State,  in  accordance  with  reg- 
ulations established  under  the  provisions  of 
this  section.  In  such  part  or  parts  of  such  State 
and  for  such  periods  as  the  Secretary  deter- 
mines to  be  necessary  to  protect  such  interests: 
Provided  further.  That  bald  eagles  may  not  be 
taken   for  any   purpose   jnless.   prior   to  such 


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211 


taking,  a  permit  to  '!<>  so  Is  procured  from  the 
Secretary    of    the    Interior:    Provided    /urcher. 
That  the  Secretary  of  the  Interior,  pursuant  to 
such    regulations    as    he    may    prescribe,    may 
permit  the  taking,  possession,  and  transporta- 
tion of  golden  eagles  for  the  purposes  of  falcon- 
ry, except  that  only  golden  eagles  which  would 
be  taken  because  of  depredations  on  livestock 
or  wildlife  may  be  taken  for  purposes  of  falcon- 
ry:    Provl/V-xl  further.  That  the  Secretary  of  trie 
Interior,   t>ur:*uAnr   to  such  regulations  a.i  he  may 
prcs<.T Lbu ,  may  permit  tho  taking  of  qoldan  eaqlt.. 
nests  wrach  interim  with  re  sour  »  develacxnent 
or  reaovery  OfKraluonr.. 

(June  8.    1940.  oh.   278.   52.  54  Sut.   251i  Oct.   24, 
1962.   Pub. I..    87-884,    71,  Stat.    1246;  Oct.    2J,    1»72. 
Pul).L.    92-'.  15.    $2.    86  Stat.    IO6S1    Nov.    8,    197B, 
Pub.L.  90-616,   |9,   92  Stat.   3114.) 

5  Wab.  Enforcement 

lal   Arrest:   search:   issuance  and   execution   of  war- 
rant! and  process 

Any  employee  of  the  Department  of  the  Inle 
nor  authorized  by  the  Secretary  of  the  Interior 
to  enforce  the  provisions  of  this  subchapter 
may.  without  warrant,  arrest  any  person  com- 
mitting in  his  presence  or  view  a  Violation  of 
this  subchapter  or  of  any  permit  or  regulations 
issued  hereunder  and  lake  such  person  Immedi- 
ately for  examination  or  trial  before  an  officer 
or  court  of  competent  Jurisdiction,  may  execute 
any  warrant  or  other  process  Issued  by  an  offi- 
cer or  court  of  competent  Jurisdiction  for  the 
enforcement  of  the  provisions  of  this  sub- 
chapter: and  may.  with  or  without  a  warrant,  as 
authorized  by  law.  search  any  place  The  Secre- 
tary nf  the  Interior  is  authorized  to  enter  Into 
cooperative  agreements  with  State  fish  and 
wildlife  agencies  or  other  appropriate  State  au- 
thorities to  facilitate  enforcement  of  this  sub- 
chapter, and  by  said  agreements  to  delegate 
such  enforcement  authority  to  State  law  en- 
forcement personnel  as  he  deems  appropriate 
for  effective  enforcement  of  this  subchapter 
Any  judge  of  any  court  established  under  the 
laws  of  the  United  States,  and  any  United 
Stairs  magistrate  may.  within  his  respective  Ju- 
risdiction, upon  proper  oath  or  affirmation 
showing  probable  cause,  issue  warrants  In  all 
such  cases. 
'b»  r'lirfeiture 

Ail  bald  or  golden  eagles,  or  parts,  nests,  or 
eggs  thereof,  taken,  possessed,  sold,  purchased, 
bartered,  offered  for  sale,  purchase,  or  barter, 
transported,  exported,  or  Imported  contrary  to 
the  provisions  nf  this  subchapt-r.  or  of  any 
permit  or  regulation  Issued  hereunder,  and  all 
guns,  traps,  nets,  and  other  equipment,  vessels, 
vehicles,  aircraft,  and  other  means  of  transpor- 
tation u.sed  to  aid  in  the  taking,  possessing,  sell- 
ing, purchasing,  bartering,  offering  for  sale. 
purchase,  or  barter,  transporting,  exporting,  or 
importing  of  any  bird,  or  part.  nest,  or  egg 
thereof.  In  violation  o(  this  subchapter  or  of 
any  permit  or  regulation  Issued  hereunder  shall 
be  subject  lu  forfeiture  to  the  United  States. 


<C)  Customs  lava  applied 

All  provisions  of  law  relating  to  the  seizure, 
forfeiture,  and  condemnation  of  a  vessel  for  vio- 
lation of  the  customs  laws,  the  disposition  of 
such  vessel  or  the  proceeds  from  the  sale  there- 
of, and  the  remission  or  mitigation  of  such  for- 
feitures, shall  apply  to  the  seizures  and  forfei- 
tures incurred,  or  alleged  to  have  been  In- 
curred, under  the  provisions  of  this  subchapter. 
Insofar  as  such  provisions  of  law  are  applicable 
and  not  Inconsistent  with  the  provisions  of  this 
subchapter:  Provided,  That  all  powers,  rights, 
and  duties  conferred  or  Imposed  by  the  customs 
laws  upon  any  officer  or  employee  of  the  Trea- 
sury Department  shall,  for  the  purposes  of  this 
subchapter,  be  exercised  or  performed  by  the 
Secretary  of  the  Interior  or  by  such  persons  as 
he  may  designate 

(June  8.  1940.  ch.  278.  |  3.  54  Stat.  251:  Oct.  17. 
1M8.  Pub.  L-  90-578.  title  IV.  5  402(b)(2),  82 
Stat.  1118;  Oct.  23.  1972.  Pub.  L.  92-538.  J  3.  86 
Stat.  1088.) 


!  e**e.  Definitions 

As  used  in  this  subchapter  "whoever"  in- 
cludes also  associations,  partnerships,  and  cor- 
porations: "take"  Includes  also  pursue,  shoot, 
shoot  at.  poison,  wound,  kill,  capture,  trap,  col- 
lect, molest  or  disturb:  "transport"  Includes 
also  ship,  convey,  carry,  or  transport  by  any 
means  whatever,  and  deliver  or  receive  or  cause 
to  be  delivered  or  received  for  such  shipment, 
conveyance,  carriage,  or  transportation. 

(June  8.  1940.  ch.  278.  1 4.  54  Stat.  251:  Oct.  23. 
1972.  Pub.  L.  92-535.  f  4.  86  Stat  106S.) 


FWS/LE  f-NF  4 


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50   CFR   22 


PAIT  22— EAGIE  PERMITS 

Suaaarl  A—  Um-Mtoctla* 

Sec 

22.1  Purpose  of  regulations. 

22.2  Scope  of  refutation*. 

22.3  Definitions 

5uaaart  | Oanaral  tea.wlr*m«nT I 

22.11  General  permit  requirements. 

22.12  Oeneral  restrictions. 

22.13  [Reserved] 

Jvkaart  C — tool*  ••rrwit. 

22.21  Permits    for    scientific    Or   rxhlblLion 
purptwws. 

22.22  Permit    for     Indian     reunion*    pur 
POMS. 

22.23  Permits  10  lake  depredatlnii  cmIcs 

22.24  Permit*  for  Falconry  purpose*.  (R,-. 
*er\ ed  I 

22. 21    •»»»»«  «>  «**■  ooM"1  •*»»»«"  "•""• 


22.31  Golden    eagle    depredations    control 
order  on  request  of  Governor  of  a  Slate. 

22.32  Condmoru  and  limitations  on  taklnn 
under  depredation  control  order. 

Authority:  Sec.  2.  Act  of  |uiw  a.  1 940. 
chapter  271.  M  Ski.  251;  Pub.  L  87-444.  76 
Sut  124ft  lection  2.  Pub.  L  92-53}.  «  Stat. 
1065;  MCtlon  9.  Pub  L  95-616.  82  Slat.  3114 
(16  U.S.C  66SBI. 

Souacc:   39  FH   1183.  Jan.  4.   1914.  unless 
ollurwuie  noted. 


Subpart  A — Introduction 

9  22.1     Purpoae  of  rrfulatlona. 

The  regulations  contained  In  this 
pari  govern  the  taking,  possession,  and 
transportation  of  bald  and  golden 
eagles  for  scientific,  educational,  and 
depredations  control  purposes  and  for 
the  religions  purposes  of  Indian  tribes. 
The  import,  export,  purchase,  sale,  or 
barter  of  bald  or  golden  eagles,  their 
parts,  nests,  or  eggs  Is  not  permitted 
by  any  regulation  of  this  Subchapter 
B. 


KWS/LF.   ENF  4-REC-22 


9  ti.t     Scope  of  rerulallons. 

(a)  Bald  eagles,  alive  or  dead,  or 
their  parts,  nests,  or  eggs  lawfully  ac- 
quired prior  to  June  8.  1940.  and 
golden  eagles,  alive  or  dead,  or  their 
parts,  nests,  or  eggs  lawfully  acquired 
prior  to  October  24.  1962.  may  be  pos- 
sessed, or  transported  without  a  Fed 
eral  permit,  but  may  not  be  imported 
exported,  purchased,  sold,  traded,  bar 
tered.  or  offered  for  purchase,  sale 
trade  or  barter,  and  all  shipments  con 
tainlng  such  birds,  parts,  nests,  or  eggs 
must  be  marked  as  provided  by  18 
U.S.C.  44  and  I  14.81  of  this  sub- 
chapter: Provided.  That  no  exemption 
from  any  statute  or  regulation  shall 
accrue  to  any  offspring  of  such  birds. 

(b)  The  provisions  In  this  part  are  In 
addition  to.  and  are  not  in  lieu  of. 
other  regulations  of  this  Subchapter  B 
which  may  require  a  permit  or  pro- 
scribe additional  restriction*'  or  condi- 
tions for  the  Importation,  exportation, 
and  interstate  transportation  CI  wtld- 
lifr  tart-  also  Part  13  of  this  sub- 
chapter) 

'.'•-'. I      DiTiniiinn.. 

Ill  addition  to  definition.*  contained 
in  Pari  10  of  Ihix  subchapter,  and 
lllllow  thi'  context  oil  hi  wist-  requires, 
in  I  his  l'nrl  22 

"Area  nesting  pof  ulailon"  means  iht 
number  of  pairs  of  golden  eagles  known 
to  have  a  nesting  attempt  during  the 
preceding  12  months  within  a  10-mile 
radius  of  a  golden  eagle  nesL 

"Golden  eagle  nest"  means  any 
readily  identifiable  structure  built, 
maintained  or  occupied  by  golden  eagles 
for  propagation  purposes. 

"Inactive  nest"  meant  a  golden  eagle 
neat  that  is  not  currently  used  by  golden 
eagles  as  determined  by  the  absence  of 
any  adult,  egg.  or  dependant  young  at 
tha  neat  during  the  10  days  be/or*  the 
nest  Is  taken. 

"Nesting  aitompt"  means  any  activity 
by  golden  eagles  involving  egg  laying 
and  incubation  as  determined  by  the 
presence  of  an  egg  attended  by  an  adult, 
an  adult  In  Incubation  poitura,  or  other 
evidence  indicating  recent  use  of  a 
golden  eagle  nest  for  incubation  of  eggs 
or  raaring  of  young. 

"Person"  meana  an  Individual, 
corporation,  partnership,  trust 


(Rev.    1/6/84) 


association,  or  any  other  privals  entity, 
or  any  officer,  employee,  agent, 
department  or  instrumentality  of  any 
Slate  or  political  subdivison  of  a  State. 
"Reaource  development  or  recovery" 
includes,  but  la  not  limited  to.  mining, 
timbering,  extracting  oil.  natural  gas  and 
geo  thermal  energy,  construction  of  - 
roads,  dama,  reservoirs,  power  plants, 
power  transmission  lines,  and  pipelines, 
aa  well  sa  facilities  and  access  routes 
"•sential  to  these  operations,  and 
reclamation  following  any  of  these 
operations. 

"Take"  Includes  also  pursue,  shoot, 
shoot  at.  poison,  wound,  kill,  capture, 
trap,  collect,  or  molest  or  disturb. 

[a  r*  57300,   Dae.    29.   19(31 
Subpart  I     General  Requirement! 

I22.lt      General  permit  requirement*. 

No  person  shall  take,  possess,  or 
transport  any  bald  ea«le  iHaluuetuj 
leucocrphaliu)  or  any  golden  eagle 
f^Quilacnrysaefos).  or  the  parts,  nests, 
or  eg gs  of  such  birds  except  as  may  be 
permitted  under  the  terms  of  a  valid 
permit  Issued  pursuant  to  the  provi- 
sions of  this  part  and  Part  13  and 
under  I  21.22  (banding  or  marking  per- 
mits), or  under  a  depredation  order 
issued  under  Subpart  D  of  this  part. 

122.12    General  restrictions. 

No  person  shall  sell,  purchase, 
barter,  trade,  or  offer  for  sale,  pur- 
chase, barter,  or  trade,  export  or 
Import,  at  any  time  or  in  any  manner, 
any  bald  eagle  (Haliaeetuilev  cocep/io- 
fus).  or  any  golden  eagle  Mguifa  enry- 
jaefoji.  or  the  parts,  nests,  or  eggs  of 
such  birds,  and  no  permit  will  be 
issued  to  authorize  such  acts. 

9  22.13    IKraervedl 

SubfMrt  C— f  oole  Permits 

»  22.;! I  Permit*  Tor  scientific  or  eahibmnn 
purpoae*. 
The  Director  may.  upon  receipt  of 
an  application  and  In  accordance  with 
the  Issuance  criteria  of  this  section. 
Issue  a  permit  authorizing  taking,  pos- 
session, or  transportation  of  bald 
eagles  or  golden  eagles-  or  their  parts. 


page   1   of    5 


68-366  -  93  -  8 


222 


nests,  or  eggs  for  the  scientific  or  exhl- 
billon  purposes  of  public  museums, 
public  scientific  societies,  or  public  zo- 
ological parks 

mi  Application  procedure.  Applica- 
tions for  permits  lo  take,  possess,  or 
transport  bald  or  golden  eagles,  their 
parts,  nests  or  eggs  for  scientific  or  ex- 
hibmon  purposes  shall  be  submitted 
to  i  he  appropriate  Special  Agent  In 
Charm-  (See:  113.11(b)  of  this  sub- 
chapter). Each  such  application  must 
contain  the  general  information  and 
certification  required  by  i  13.12(a)  of 
ihis  subchapter  plus  the  followinK  In 
formation: 

(1)  Species  of  eagle  and  number  of 
such  birds,  nests,  or  eggs  proposed  to 
be  taken,  possessed,  or  transported: 

(2)  Specific  locality  in  which  taking 
is  proposed,  if  any; 

(3)  Method  taking  proposed.  If  any: 
(4i  If  not  taken,  the  source  of  eagles 

and  other  circumstances  surrounding 
the  proposed  acquisition  or  transpor- 
tation: 

(5)  Name  and  address  of  the  public 
museum,  public  scientific  societies,  or 
public  zoological  park  for  which  they 
are  intended: 

(8)  Complete  explanation  and  Justifi- 
cation of  request,  nature  of  project  or 
study,  number  of  specimens  now  at  In- 
stitution, reason  these  are  inadequate, 
and  other  appropriate  explanations. 

<bj  Additional  permit  conditions.  In 
addition  to  the  general  conditions  set 
forth  in  Part  13  of  this  Subchapter  B. 
permits  to  lake,  possess,  or  transport 
bald  or  golden  eagles  for  scientific  or 
exhibition  purposes,  shall  be  subject 
to  the  following  condition:  In  addition 
to  any  reporting  requirement  set  forth 
in  the  permit,  the  permittee  shall 
submit  a  report  of  activities  conducted 
under  the  permit  to  the  Special  Agent 
in  Charge  within  30  days  after  expira- 
tion of  the  permit. 

(O  Issuance  criteria.  The  Director 
shall  conduct  an  investigation  and  nol 
issue  a  permit  to  take,  possess,  or 
transport  bald  or  golden  eagles  for  sci- 
entific or  exhibition  purposes  unless 
he  has  determined  that  such  taking, 
possession,  or  transportation  Is  com- 
patible with  the  preservation  of  ihe 
bald  or  golden  eagle.  In  making  such 
determination,  the  Director  shall  con- 
sider, among  other  criteria,  the  follow- 
ing: 

(1)  The  direct  or  Indirect  effect 
which  Issuing  such  permit  would  be 
likely  to  have  upon  the  wild  popula- 
tions of  bald  and  golden  eagles: 

(2)  Whether  the  expertise,  facilities, 
or  other  resources  available  to  the  ap- 
plicant appear  adequate  to  successful- 
ly accomplish  the  objectives  stated  In 
the  application: 

(3)  Whether  ihe  Justification  of  the 
purpose  for  which  Ihe  permit  Is  bring 


requested  in  adequate  io  Justify  the  re- 
moval oi  Ihe  eagle  from  the  wild  or 
otherwise  change  its  slatua:  and 

(4)  Whether  the  applicant  has  dem- 
onstrated thai  the  permit  Is  being  re- 
quested for  bona  fide  scientific  or  ex- 
hibition purposes  of  public  museums, 
public  scientific  societies,  or  public  zo- 
ological parks. 

(d)  Tenure  o/  permits.  The  tenure  of 
permits  to  take  bald  or  golden  eagles 
for  scientific  or  exhibition  purposes 
shall  be  that  shown  on  the  face  of  the 
permit. 

I  llJil     Permits  for  Indian   rtllgious  pur- 

aoaea. 

The  Director  may.  upon  receipt  of 
an  application  and  In  accordance  with 
the  Issuance  criteria  of  this  section. 
Issue  a  permit  authorizing  the  taking, 
possession,  and  transportation  of  bald 
or  golden  eagles,  or  their  parts,  nests, 
or  egga  for  the  religious  use  of  Indians. 

(a)  Application  procedure.  Applica- 
tions for  permits  to  take,  possess,  and 
transport  bald  or  golden  eaglet,  their 
partis,  nests,  or  eggs  for  the  religious 
use  of  Indians  shall  be  submitted  to 
the  appropriate  Special  Agent  In 
Charge  (See:  I  13.11(b)  of  this  sub- 
chapter). Only  applications  from  indi- 
vidual Indians  will  be  accepted.  Each 
such  application  must  contain  the  gen- 
eral Information  and  certification  re- 
quired by  1 13.12(a)  of  this  subchapter 
plus  the  following  additional  Informa- 
tion: 

(1)  Species  and  number  of  eagles  or 
feathers  proposed  to  be  taken,  or  ac- 
quired by  gift  or  inheritance. 

(2)  State  and  local  area  where  the 
taking  is  proposed  to  be  done,  or  from 
whom  acquired. 

(3)  Name  of  tribe  with  which  appli- 
cant Is  associated. 

(4)  Name  of  tribal  religious 
ceremony(les)  for  which  required. 

(5)  Applicant  must  attach  a  certifica- 
tion from  the  Bureau  of  Indian  Affairs 
that  the  applicant  Is  an  Indian. 

(6)  Applicant  must  attach  a  certifica- 
tion from  a  duly  authorized  official  of 
the  religious  group  that  the  applicant 
Is  authorized  to  participate  In  such 
ceremonies. 

(bt  Additional  permit  conditions.  In 
addition  to  the  general  conditions  set 
forth  In  Part  13  of  this  Subchapter  B. 
permits  to  lake,  poaaeas.  and  transport 
bald  or  golden  eagles,  their  parts, 
nests  or  eggs,  for  the  religious  uae  of 
Indiana  shall  be  subject  to  the  follow- 
ing conditions: 

(1)  Bald  or  golden  eagles  or  their 
parts  possessed  under  permits  issued 
pursuant  to  this  section  are  not  trans- 
ferable, except  such  birds  or  their 
parts  may  be  handed  down  from  gen- 
eration to  generation  or  from  one 
Indian  to  another  In  accordance  with 


tribal  or  religious  customs:  and 

(2)  Permittees  shall  make  such  re 
ports  or  submit  inventories  of  eagle 
feathers  or  parts  on  hand  as  may  be 
requested  by  the  Special  Agent  in 
Charge. 

(c)  Issuance  criteria.  The  Director 
shall  conduct  an  investigation  and  not 
issue  a  permit  to  take,  possess,  and 
transport  bald  or  golden  eagles,  their 
parts,  nests  or  eggs,  for  ihe  religious 
use  of  Indians  unless  he  has  deter- 
mined that  such  taking,  possession, 
and  transportation  is  compatible  with 
the  preservation  of  the  bald  or  golden 
eagle.  In  making  such  determination, 
the  Director  shall  consider,  among 
other  criteria,  the  following: 

(1)  The  direct  or  indirect  effect 
which  Issuing  such  permit  would  be 
likely  to  have  upon  the  wild  popula- 
tions of  bald  or  golden  eagles:  and 

(2)  Whether  the  applicant  is  an 
I.-.dlan  who  is  authorized  to  partici- 
pate in  bona  /ia>  tribal  religious  cere- 
monies. 

(d)  Tenure  0/  permits.  Any  permit 
Issued  pursuant  lo  this  section  under 
which  the  applicant  is  authorized  to 
lake  eagles  shall  be  valid  during  the 
period  specified  on  the  face  thereof 
which  shall  in  no  case  be  longer  than  1 
year  from  dale  of  Issue.  Any  permit 
issued  pursuant  to  this  part  which  au- 
thorizes the  permittee  to  transport 
and  possess  eagles  or  their  parts  shall 
be  valid  for  the  life  of  the  permittee  ' 
unless  sooner  revoked. 

«  11M  Hermit*  (a  lake  depredmni  <nxir> 
The  Director  may.  upon  receipt  of 
an  application  and  In  accordance  with 
the  Issuance  criteria  of  this  section, 
issue  a  permit  authorizing  the  taking 
of  depredating  bald  or  golden  eagles. 

■  a)  Application  procedure.  Applica- 
tions for  permits  to  take  depredating 
bald  or  golden  eagles  shall  be  submit- 
led  (o  Ihe  appropriate  Special  Agent 
in  Charge  (Sec:  h  13.11(b)  of  this  sub- 
chapter). Each  such  application  must 
contain  the  general  Information  and 
certification  required  by  I  13.12(a)  of 
this  subchapter  plus  the  following  ad- 
ditional information: 

(1)  Species  and  number  of  eagles 
proposed  to  be  taken: 

(2)  Location  and  description  of  prop- 
erty where  taking  is  proposed: 

(3)  Inclusive  dates  for  which  permit 
Is  requested: 

(4)  Method  of  taking  proposed: 

(5)  Kind  and  number  of  livestock  or 
domestic  animals  owned  by  applicant: 

(6)  Kind  and  amount  of  alleged  dam- 
aged: and 

(T)  Name,  address,  age.  and  business 
relationship  with  applicant  of  any 
person  the  applicant  proposes  to  act 
for  him  as  his  agent  in  the  taking  of 
such  eagles. 


FVS/LE   EKF  4-REG-22 


(rev.    1/6/84) 


page  2  of    5 


223 


<b>  Additional  permit  conditions.  In 
addition  to  the  general  conditions  set 
forth  in  Part  13  of  this  Subchapter  B 
permiu  to  take  depredating  bald  or 
golden  eagles  shall  be  subject  to  the 
following  conditions: 

(1)  Bald  or  golden  eagles  may  be 
taken  under  permit  by  firearms,  traps, 
or  other  suitable  means  except  by 
poison  or  from  aircraft: 

>2i  The  taking  of  eagles  under 
perm  may  be  done  only  by  the  per- 
mittee or  his  agents  named  In  the 
permit: 

(3)  Any  eagle  taken  under  authority 
of  such  permit  will  be  promptly 
turned  over  to  a  Service  agent  or  other 
game  law  enforcement  officer  desig- 
nated in  the  permit:  and 

>4i  In  addition  to  any  reporting  re- 
quirement set  forth  in  the  permit,  the 
permittee  shall  submit  a  report  of  ac- 
tivities conducted  under  the  permit  to 
the  Special  Agent  in  Charge  within  10 
days  following  completion  of  the 
taking  operations  or  the  expiration  of 
the  permit  whichever  occurs  first. 

(ci  luuance  criteria.  The  Director 
shall  conduct  an  Investigation  and  not 
issue  a  permit  to  take  depredating 
bald  or  golden  eagles  unless  he  has  de- 
termined thai  such  taking  Li  compati- 
ble with  the  preservation  of  the  bald 
or  colden  eagle.  In  making  such  deter- 
mination the  Direrlor  shall  consider 
I  he  following: 

(1)  The  direct  or  Indirect  effect 
which  issuing  such  permit  would  be 
likely  to  have  upon  the  wild  popula- 
tion of  bald  or  golden  eagles: 

(2)  Whether  there  la  evidence  to 
show  that  bald  or  golden  eagle*  have 
In  fact  become  seriously  Injurious  to 
wildlife  or  to  agriculture  or  other  In- 
terests In  the  particular  locality  to  be 
covered  by  the  permit,  and  the  Injury 
complained  of  Is  substantial:  and 

(3)  Whether  the  only  way  to  abate 
the  damage  caused  by  the  bald  or 
golden  eagle  is  to  take  some  or  all  of 
the  offending  birds. 

(d)  Tenure  of  permit*.  The  tenure  of 
any  permit  to  take  bald  or  golden 
eagles  for  depredation  control  pur- 
poses shall  be  that  shown  on  the  face 
thereof,  and  shall  In  no  case  be  longer 
than  SO  days  from  date  of  issue 


|2U4 

The  Director  may.  upon  receipt  of  an 
application  nnJ  In  accordance  with  the 
Issuance  criteria  of  this  taction.  Issue  a 
permit  authorizing  the  possession  and 
transportation  of  golden  tag'**  for 
falconry  purposes. 

No**.— The  information  collections 
contained  In  this  I  22.24  are  cleared  by  the 
Office  of  Management  and  Budget  under  the 
Paperwork  Railuctlon  Act  of  1M>  and 
tangoed  approval  number  1018-0022.  Tht 
information  la  naoanary  to  determine 


potential  penmttta's  qualification*  and  >• 
required  lo  obtain  a  panniL 

(a)  Application  procedure. 
Applications  for  permits  to  possess  and 
transport  golden  eagles  for  falconry 
purposes  shall  be  submitted  to  the 
appropriate  special  agent  in  charge  (see 
1 13.11(b)  of  this  subchapter).  Each 
application  must  contain  the  general 
information  and  certification  required 
by  1 13.12(a)  of  this  subchapter  plus  the 
following  additional  information: 

(1)  A  copy  of  the  applicant'!  master 
(or  equivalent)  class  permit  issued  in 
accordance  with  50  CFR  21  28. 

(2)  A  statement  of  the  applicant's 
experience  in  handling  large  raptors, 
including  the  ipecies.  type  of  experience 
end  duration  of  the  activity  in  which  the 
experience  was  acquired. 

(3)  At  least  two  (2)  letters  of  reference 
from  individuals  with  recognized 
experience  In  handling  and/or  flying 
eagles.  Each  letter  must  contain  a 
concise  history  of  the  author's 
experience  with  eagles.  Eagle  handling 
experience  Is  defined  as,  but  Is  not 
limited  to.  the  handling  of  pre-Act  birds, 
zoological  specimens,  rehabilitating 
eagles,  or  scientific  studies  Involving 
eaglet.  Each  letter  mutt  also  attest  the 
applicant's  capability  to  properly  care 
for  the  fly  golden  eagles  in  falconry,  and 
recommend  the  Ittuance  or  deniel  of  the 
permit 

(4)  A  description  of  the  facilities  in 
which  golden  eaglet  will  be  housed 

(5)  If  requesting  an  eagle(t)  from  the 
Service,  applicants  mult  specify  the  tax. 
age  and  condition  of  the  eagle(t)  they 
will  accept. 

(6)  For  eaglet  already  legally 
possessed,  t  copy  of  the  permit  or  other 
documentation  authorl-jng  possession 
of  said  birds,  and  the  procedures  to  be 
used  to  minimize  or  eliminate  hazards 
associated  with  the  use  of  imprinted 
birds  In  falconry. 

(7)  Name,  address,  sge  and  experience 
in  handling  raptors  of  any  person  the 
eppllcant  proposes  to  act  at  an 
authorized  agent  In  taking  possession  of 
golden  eaglet  provided  by  the  Sendee. 

(8)  To  obtain  additional  or 
replacement  golden  eagle*,  a  raquett  in 
writing  to  the  appropriate  tpecial  agent 
In  charge  mutt  be  tendered.  Identifying 
the  existing  permit  and.  for  replacement 
eaglet,  the  reason  for  such  replacement. 

(b)  Permit  conditions.  In  addition  lo 
the  general  conditions  tat  forth  in  Part 
13  of  this  Subchapter  a  permiu  to 
possets  and  transport  golden  eaglet  for 
falconry  purpotet  art  subject  to  the 
following  conditions: 

(1)  Golden  eagle*  pu A  for 


falconry  purposes  sre  considered  as 
raptore  tnd  mutt  be  maintained  in 
accordance  with  Federal  falconry 
standards  described  in  ||  21.28  and 
ZV28  of  this  subchapter. 

(2)  Only  golden  eaglet  legally 
obtained  may  be  possessed  end 
transported  for  falconry  purposes. 

(3)  Captive  breeding  of  golden  eagles 
possessed  for  falconry  purposes  is 
prohibited. 

(4)  The  applicant  or  authorized  agent, 
must  agree  to  take  possession  of  a 
requested  golden  eagle(s)  within  72 
hours  of  notification  of  availability. 
Expenses  incurred  by  the  applicant  in 
taking  possession  of  said  eegie(s)  will 
be  the  applicant!  responsibility 

(5)  The  golden  eegle(s)  must  be 
banded  with  a  numbered  eagle  marker 
provided  by  the  Service. 

(8)  All  permiu  issued  pursuant  to  this 
section  shall  state  on  their  face  that 
•«a'.?t  possessed  for  falconry  purposes 
under  authority  of  thia  permit  may  not 
be  transferred  or  otherwise  intentionally 
disposed  of  by  sny  means,  including 
release  to  the  wild,  without  written 
approval  from  the  appropriate  regional 
director. 

(7)  All  permits  issued  pursuant  to  this 
section  shall  Hate  on  their  face  that  the 
appropriate  special  agent  In  charge  mutt 
be  notified  no  later  than  ten  (10)  days 
after  the  death  of  a  permit  holder. 

(c)  More  restrictive  State  laws. 
Nothing  in  this  section  shall  be 
construed  to  prevent  a  State  from 
making  and  /or  enforcing  more 
restrictive  law*  and  regulations  as 
regard*  tha  at*  of  golden  eaglet  in 
falconry. 

(d)  /nuance  criteria.  The  Director 
(hall  conduct,  an  invettiganon  and  thai] 
not  ittue  a  permit  to  posse**  and 
transport  golden  eagles  for  falconry 
purposes  unlet*  ha  ha*  determined:  that 
tuck  possession  and  transportation  it 
compatible  with  tha  preservadon  of 
golden  eagles  mat  tht  proposed 
pottattlon  and  transportation  of  golden 
ta gl e*  for  falconry  Is  not  otherwii* 
proMbitsd  by  law*  and  regulation* 
withi-J  tha  Sort*  where  the  activity  la 
proposed;  asjd  that  that  applicant  is 
qualified  to  poitsnt  and  transport 
guldaii  *sglai  fryfilrnrnTfiiiniisiit  In 
maicuzfths  UttsrdatarmmaUan.  die 
DUacna  shall  coroBrlar.  hot  shall  not 
nacasaanrf  ba  Undtsd  to.  the  following: 

(1)  Tha  applicant' t  qimtiltave 
falconry  expert  enea. 

(2)  Tha  applicant's  damonstratad 
ability  to  handl*  and  car*  for  Large 


(3)  Insdosatioo  contained  in  the 


FWS/LE  T.NF  4-REG-22 


(Rev.    1/6/84) 


page 


3  of    5 


224 


applicant's- lettesT  of  i 

(e)  Tenure  of  permits.  Any  permit  to 
possess  and  transport  golden  eaglea  for 
falconry  purposes  i»  valid  for  aa  long  aa 
the  holder  maintain*  a  valid  maiter  (or 
equivalent!  claas  falconry  permit  or  until 
revoked  in  writing  by  the  Service. 

(0  Permission  to  trap  golden  eogles 
for  falconry  purposes.  Applicant! 
desiring  to  trap  golden  eaglea  from  the 
w.: !  for  use  in  falconry  must  request 
and  obtain  permission  from  the  Service 
prior  to  exercising  this  privilege.  The 
following  appliea  to  requests: 

(1 )  Only  golden  eaglea  from  a 
specified  depredation  area  may  ba 
trapped  for  falconry  purposes. 

(2)  Permission  to  trap  golden  eaglea 
must  be  requested  in  writing  from  the 
appropriate  State  Animal  Damage 
Control  (ADC)  supervisor  subsequent  to 
iasmmoca  of  the  parmit  to  possess  and 
transport  golden  eaglea  for  falconry 
purposes 

(3)  Permeation  to  trap  will  not  ba 
granted  until  the  permittee  suitably 
demonstrates  to  the  Stat*  ADC 
supervisor  oc  a  designated  protect 
laartar  ma/hat  rnaaliflrersrrrlf  and 
capabilities  to  trap  golden  eagles  from 
the  wild. 

(4)  All  such  trapping  must  be 
conducted  under  the  direct  supervision 
of  the  State  ADC  supervisor  or 
designated  pro|ect  leader  in  the 
specified  depredation  area. 

|S|  Any  permission  to  trap  golden 
eagles  from  the  wild  pursuant  to  this 
section  shall  in  no  case  extend  more 
than  90  daya  from  the  data  of  iaaue. 

(6)  Upon  issuance  of  permission  to 
trap  in  accordance  with  the  above 
condition*,  the  appropriate  special  agent 
in  charge  will  be  notified  in  writing  by 
the  State  ADC  supervisor  of  the 
individual's  name,  address,  location  of 
the  specified  depredation  area  and 
tenure  of  permission  to  trap  golden 
eaglea. 

(49  nt  an,  Jan.  «,  19t4) 
JM-M    Permits  Is  tsaei 


The  Director  may,  upon  receipt  of  an 
application  end  in  accordance  with  the 
issuance  criteria  of  thia  section.  Iaaue  e 
permit  authorizing  any  person  to  take 
golden  eagle  nests  during  a  resource 
development  or  recovery  operation 
when  the  nests  are  Inactive,  if  the  taking 
la  compatible  with  the  preservation  of 
ihe  aree  neating  population  of  golden 
•  jgles.  The  information  collection 
requirements  contained  within  this 
section  have  been  approved  by  the 


Office  of  Management  end  Budget  under 
44  U.S.C.  3507  and  assigned  clearance 
number  1018-OOZ2.  This  information  is 
being  collected  to  provide  information 
necessary  to  evaluate  permit 
applications.  Thia  information  will  be 
used  to  review  permit  applicationa  and 
make  decisions,  according  to  the  criteria 
established  in  this  section  for  the 
issuance  or  denial  of  such  permits.  The 
obligation  to  respond  is  required  to 
obtain  or  retain  e  permit. 

(a)  Application  procedure. 
Applications  for  permits  to  teke  golden 
eagle  nests  must  be  submitted  to  the 
appropriate  Speciel  Agent  In  Charge 
(see  I  13.11(b)  of  this  chapter). 
Applicationa  are  only  accepted  from 
persons  engaged  in  a  resource 
development  or  recovery  operation, 
including  the  planning  and  permitting 
stages  of  an  operation.  Each  application 
must  contain  the  general  information 
and  certification  required  by  1 13.12(a) 
of  this  chapter  plus  the  following 
additional  information: 

(1)  A  description  of  the  resource 
development  or  recovery  operation  in 
which  the  applicant  is  engaged: 

(2)  The  number  of  golden  eagle  nests 
proposed  to  be  taken; 

(3)  A  description  of  the  property  on 
which  Ihe  taking  is  proposed,  with 
reference  made  to  its  exact  geographic 
location.  An  appropriately  scaled  as*; 
or  plat  must  be  included  which 
delineates  the  area  of  the  resource 
development  or  recovery  operation  and 
identifies  the  exact  location  of  each 
golden  eagle  nest  proposed  to  ba  taken. 
The  map  or  plat  must  contain  enough 
detail  so  that  each  golden  eagle  natt 
proposed  to  be  taken  cen  be  readily 
located  by  the  Service. 

(4)  Por  each  golden  eaght  treat 
proposed  to  be  taken,  the  applicant  must 
calculate  the  area  nesting  papulation  of 
golden  eagles  and  identify  on  an 
appropriately  scaled  map  or  plat  the 
exact  location  of  each  golden  eagle  nest 
used  to  calculate  the  erea  nesting 
population  unless  the  Service  has 
sufficient  data  to  independently 
calculate  the  area  nesting  population. 
The  map  or  plat  must  camtam  enough 
detaiU  so  that  each  golden  eagle  neat 
used  te  calculate  the  area  neating 
population  can  ba  readily  located  by  the 
Service. 

(5)  A  description  of  each  activity  to  be 
performed  dosing  the  reasniraa 
development  or  recovery  operation 
which  involves  the  taking  of  a  golden 
eagle  nest: 

(0)  A  statement  with  any  supporting 
documents  from  ornithologists 
experienced  with  golden  eagles  or  other 


qualified  persons  who  have  made  on 
site  inspections  and  can  verify  the 
applicant's  calculation  of  the  area 
nesting  population: 

(7)  The  length  of  time  for  which  the 
permit  is  requested,  including  the  dates 
on  which  the  proposed  resource 
development  or  recovery  operation  is  to 
begin  and  end: 

(8)  A  statement  indicating  the 
intended  disposition  of  each  nest 
proposed  to  be  taken.  Applicants  should 
state  whether  they  are  willing  to  collect 
any  nest  for  scientific  or  educational 
purposes:  and 

(9)  A  statement  indicating  any 
proposed  mitigation  measures  that  are 
compatible  with  the  resource 
development  or  recovery  operation  to 
encourage  golden  eagles  to  reoccupy  the 
resource  development  or  recevery  site. 
Mitigation  measures  msy  include 
reclaiming  disturbed  land  to  enhance 
s-.'r'en  eegle  nesting  and  foraging 
habitat,  relocating  in  suitable  habitat 
any  inactive  golden  eagle  nest  taken,  or 
establishing  one  or  more  nest  sites.  If 
the  establishment  of  one  or  more  nest 
sites  Is  proposed,  a  description  of  the 
matenals  and  methods  to  be  used  and 
the  exact  location  of  each  artificial  neat 
site  must  be  included. 

(b)  Additional  permit  conditions.  In 
addition  to  Ihe  general  conditions  set 
forth  in  Part  13  of  this  chapter,  permits 
to  take  golden  eagle  nests  are  subject  to 
the  following  additional  conditions: 

(f)  Only  inactive  golden  eagle  nests 
may  ba  taken. 

(2)  The  permittee  shall  submit  a  report 
of  activitiea  conducted  under  the  permit 
to  the  Director  within  ten  (10)  days 
following  the  permit's  expiration: 

(3)  The  permittee  shall  notify  the 
Director  in  writing  at  least  10  daya  but 
not  more  than  30  daya  before  any  go+den 
eagle  nest  is  taken: 

(4)  The  permittee  shall  comply  with 
any  mitigation  measures  determined  by 
the  Damctor  to  be  ieaaieae  and 
compatible  with  the  resource 
development  or  recovery  operation:  and 

(5)  Any  permit  iaaued  before  the 
commencement  of  a  resource 
development  or  recovery  operation  is 
invalid  if  tha  activity  which  required  a 
permit  ia  not  performed. 

(c)  Issuance  criteria.  The  Director 
shall  conduct  an  investigation  and  not 
issue  a  permit  to  take  any  golden  eagle 
nest  unless  such  taking  Is  compatible 
with  the  preservation  of  the  area  nesting 
popuhHion  of  golden  eagles.  In  making 
such  determination,  the  Director  shall 
consider  the  following: 

(1)  Whether  the  applicant  can 


FWS/LE  ENF  4-REC-22 


(Rev.    1/6/84) 


page 


4  of   5 


225 


reasonably  conduct  (he  resource 
development  or  recovery  operation  in  a 
manner  that  avoids  taking  any  golden 
eagle  nest: 

(2)  The  total  number  of  golden  eagle 
nests  proposed  to  be  taken: 

(3)  The  size  of  the  area  nesting 
population  of  golden  eagles: 

(4)  Whether  suitable  golden  eagle 
nesting  and  foraging  habitat  unaffected 
by  the  resource  development  or 
recovery  operation  is  available  to  the 
area  nesting  population  of  golden  eagles 
to  accommodate  any  golden  eagles 
displaced  by  the  resource  development 
or  recovery  operation: 

(5)  Whether  feasible  mitigation 
measure*  compatible  with  the  resource 
development  or  recovery  operation  are 
available  to  encourage  golden  eagles  to 
rcoCwupy  the  resource  development  or 
recovery  site.  Mitigation  measures  may 
include  reclaiming  disturbed  land  to 
enhance  golden  eagle  nesting  and 
foraging  habitat,  relocating  in  suitable 
habitat  any  golden  eagle  nest  taken,  or 
establishing  one  or  more  nest  sites:  and 

18]  Whether  the  area  nesting 
population  is  widely  dispersed  or  locally 
concentrated. 

|d)  Tenure  ofpirmits.  The  tenure  of 
any  permit  to  take  golden  eagle  nests  is 
2  years  from  the  date  of  issuance,  unless 
a  shorter  period  of  time  is  prescribed  on 
the  face  of  the  permit.  Permits  may  be 
renewed  in  accordance  with  Part  13  of 
this  chapter. 

141   FR  57300,    Dae.    2).    1M3I 


during  which  the  taking-  of  such  birds 
is  recommended,  and  Including  a  map 
of  Che  Slate  Indicating  the  boundaries 
of  the  proposed  area  of  taking.  Such 
requests  should  include  a  statement  of 
the  facts  and  the  source  of  such  facts 
that  in  the  Governor's  opinion  justi- 
fies the  request.  After  a  decision  by 
the  Director,  the  Governor  will. be  ad- 
vised in  writing  concerning  the  request 
and  a  notice  will  be  published  in  the 
Federal  Rigisttr 

1 22.32  Conditions  and  limitations  on 
taking  under  depredation  control 
order. 

(a)  Whenever  the  talcing  of  golden 
eagles  without  a  permit  is  authorized 
for  the  seasonal  protection  of  live- 
stock, such  birds  may  be  taken  by  fire- 
arms, traps,  or  other  suitable  means 
except  by  poison  or  from  aircraft. 

(b)  Any  person  exercising  any  of  the 
privileges  granted  by  this  Subpart  O 
must  permit  all  reasonable  times.  In- 
cluding during  actual  operations,  any 
Service  agent,  or  other  game  law  en- 
forcement officer  free  and  unrestrict- 
ed access  over  the  premises  on  which 
such  operations  have  been  or  are  being 
conducted:  and  shall  furnish  promptly 
to  such  officer  whatever  Information 
hr  may  require  concerning  such  oper- 
ations. 

(O  The  authority  to  take  golden 
eagles  under  a  depredations  control 
order  Issued  pursuant  to  this  Subpart 
D  only  authorizes  the  taking  of  golden 
eagles  when  necessary  ;o  seasonally 
protect  domesticated  flocks  and  herds, 
and  all  such  birds  taken  must  be  re- 
ported and  turned  over  to  a  local 
Bureau  Agent. 


Subpart  0 — Depredation  Control 
Orders  on  Golden  EogUs 

%  22.-11  (iulden  eagle  depredalium  control 
order  on  reu.ue*i  of  <tO*erm»r  uf  a 
Slate, 
(a)  Whenever  the  Governor  of  any 
Slate  requests  permission  to  take 
golden  eagles  to  seasonally  protect  do- 
mesticated flocks  and  herds  In  such 
Slate,  the  Director  shall  make  an  in- 
vestigation and  if  he  determines  that 
such  taking  is  necessary  to  and  will 
seasonally  protect  domesticated  flocks 
and  herds  In  such  States  he  shall  au- 
thorize such  taking  In  whatever  part 
or  parts  of  the  State  and  for  such  peri- 
ods as  he  determines  necessary  to  pro- 
tect such  interests. 

<b)  Requests  from  the  Governor  of  a 
State  to  take  golden  eagles  to  season- 
ally protect  domesticated  flocks  and 
herds  must  be  submitted  in  writing  to 
the  Director  listing  the  periods  of  time 


rVS/LE   ENF     4-REC-22 


(Rev.    1/6/84) 


page  5  of   5 


226 


ASSISTANT  REGIONAL  DIRECTOR/ LAW  ENFORCEMENT  (ARD/LE) 
P.O.  BOX  329 
ALBUQUERQUE,  NEW  MEXICO  87103 
(505)  766-2091 

REQUEST  TO  RECEIVE  EAGLE  PARTS/ FEATHERS  FOR  USE  IN  RELIGIOUS  CEREMONY ( IES) 

NOT  TO  BE  USED  FOR  FIRST/ INITIAL  APPLICATION.  ALL  ITEMS  MUST  BE  COMPLETED 
AS  REQUESTED. 

Species  (bald  or  golden  eagle) ,  or  feathers  or  parts  requested.  Only  ONE 
eagle  or  the  equivalent  of  ONE  eagle  per  order.  ONLY  ONE  ORDER  PENDING  AT  A 
TIME. 


ITEM 


]  Whole  Eagle 

]  Eagle  Tail- 

]  Wing(s) 

]  Talon(s) 

]  Feathers 


SPECIES 

[  ]  Golden 

[  ]  Bald 

[  ]  Either 

[  ]  Other 


AGE 

[  ]  Adult 
[  ]  Immature 
[  ]  Either 


AMOUNT 

I  ]  Pair 
[  ]  One 

[  ]  


NAME: 


FULL  ADDRESS: 


TELEPHONE  NUHBER(S) 


DATE  OF  BIRTH: 


NEAREST  MAJOR  BUS  LINE  (CITY/TOWN) 
PERMIT  NO:      


(if  available) 


SIGNATURE: 


YOU  MUST  NOTIFY  THIS  OFFICE,  IN  WRITING,  OF  ANY  ADDRESS  OR  PHONE  NUMBER 
CHANGES.  IF  THE  REPOSITORY  IS  UNABLE  TO  CONTACT  YOU,  YOUR  ORDER  WILL  BE 
PLACED  ON  INACTIVE/ABANDONED  STATUS. . 


FOR  REGIONAL  OFFICE  USE  ONLY 


REQUEST  RECEIVED  BY  LE: 

REQUEST  APPROVED  BY  LE: 

REQUEST  APPROVED  BY: 
REQUEST  NUMBER: 


227 


United  States  Department  of  the  Interior 

PISH  AND  WILDLIFE  8EKVICZ 

DIVISION  OF  LAW  ENFORCEMENT 

Post   Offloo  Box  328 
Albuquorquo,  Now  Mexico  87103 

(505)766-2091 


This  letter  constitutes  a  request  for  all  individuals/organizations 
holding  a  federal  migratory  bird  permit  to  forward,  on  a  timely  basis, 
feathers  as  well  as  whole  carcasses  of  raptors  and  eagles  to: 

U.S.  Fish  and  Wildlife  Service 
Division  of  Law  Enforcement 

National  Fish  &  Wildlife  Forensics  Laboratory 
1490  E.  Main  Street 
Ashland,  OR  97520 
ATTENTION:   JIM  KNIFFEN 
(503)  482-4383 

These  feathers  and  carcasses  are  distributed  from  the  Forensics 
Laboratory  to  Native  Americans  for  use  in  religious  ceremonies. 

Please  separate,  label  and  bundle  all  feathers,  whenever  possible. 
Feathers  necessary  for  imping  may  be  retained. 

Please  contact  the  Forensic  Laboratory  for  instructions  on  shipping 
whole  carcasses. 

REMINDER:  All  eagle  acquisitions  and/or  mortalities  must  be  reported  to 
this  office  at  the  above  address  or  telephone  number  within  48  hours. 


Thank  you  for  your  continued  cooperation. 


Permits/Licenses  Section 
Region  2 


228 


United  States  Department. of  the  Interior 

FISH  AND  WILDLIFE  SERVICE 


IN  REPLY  REFER  TO: 
USFWS/LE 

EAGLE  FEATHER 


MA1UNC  ADDRESS: 

Pail  Otfcr  Box  2343S 
DtniMf  FetUral  CtrUtr 
Onw.  Colorado     30223 


STREET  LOCATION: 

124  Union  Blvd. 
Lonrunoi.  Colorado    30223 


Re:  A  letter  of  information  and 
IMPORTANT  INSTRUCTIONS. 


EXHIBIT  jg. 


Dear  Applicant: 

We  have  received  your  recent  request  for  eagle  feathers.  Only  one 
whole  bird  or  parts/feathers  equivalent  to  one  bird,  can  be  sent  at 
a  time.  The  national  supply  is  very  limited  and  the  requests  for 
feathers  far  exceed  the  the  supply.  Additionally,  these  requests 
are  filled  on  a  first-come  first-served  basis. 

Your  request  will  be  forwarded  to  the  eagle  repository  in  ^ihland, 
Oregon.  The  shipping  agent  in  Ashland  will  call  you,  in 
approximately  24  months,  when  your  request  is  ready  to  be  filled. 
If  the  eagle  repository  cannot  contact  you  by  telephone  when 
shipment  is  ready,  your  request  will  automatically  be  placed  in  an 
inactive  status,  so  it  is  very  important  for  you  to  notify  this 
office  of  any  address  and  telephone  cnances. 

When  you  receive  the  feathers,  a  receipt  will  be  included  in  the 
shipment.  You  must  sign  this  receipt  and  return  it  to  this  office. 
After  this  office  receives  the  signed  receipt,  a  permit  will  be 
issued  certifying  legal  possession.  At  this  time  if  more  feathers 
are  necessary,  you  may  request  a  "re-order  form"  specifying  the 
feathers  needed  and  for  what  ceremony  they  will  be  used. 

If  you  have  any  questions,  please  contact  this  office  at  (303)  236- 
7540. 


Sincerely  yours. 


A 


^fytyuiAjb^-P  "^xA&toir) 


3ernadette  Hilbourn 
Chief,  Permit  Section 


229 


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230 

Mr.  Richardson.  Let  me  welcome  the  chairman  of  the  Hopi 
Tribe  and  apologize  to  him  also  for  not  putting  him  first  as  protocol 
dictates.  I'm  still  recovering  from  the  storm  that  hit  us  this  week- 
end, stuck  in  an  airport,  and  I  apologize  for  not  recognizing  him. 

Mr.  Chairman,  welcome,  and,  again,  my  thanks  to  you  and  my 
commendations  for  your  efforts  to  deal  with  the  Navajo-Hopi  issue. 
I  know  that  has  taken  up  a  lot  of  your  time.  I  know  how  busy  you 
are.  I  want  to  again  welcome  you  to  the  subcommittee. 

STATEMENT  OF  HON.  VERNON  MASAYESVA 

Chairman  MASAYESVA.  Thank  you  very  much.  Good  morning,  Mr. 
Chairman  and  members  of  the  subcommittee. 

My  name  is  Vernon  Masayesva,  chairman  of  the  Hopi  Tribe.  I 
am  certainly  glad  to  be  here  to  be  part  of  this  occasion. 

As  I  was  listening  to  the  testimony  provided  by  my  brothers  and 
sisters  here  this  morning,  I  was  struck  by  the  fact  that  this  country 
was  founded  in  part  by  people  who  sought  to  escape  religious  per- 
secution in  their  native  lands.  Now,  300  years  later,  the  Native 
Americans,  the  first  Americans,  are  still  petitioning  Congress  for 
religious  freedom  and  protection  from  persecution.  So  the  commit- 
tee will  move  rapidly  to  guarantee  Native  Americans  their  basic 
rights  afforded  to  all  religious  organizations  in  the  United  States. 

Of  course,  there  are  many  issues  that  I  would  like  to  address, 
but  the  specifics  have  been  prepared  in  written  document  which 
has  been  submitted  to  your  committee,  and  I  hope  they  become 
part  of  the  record.  This  morning,  I  also  would  like  to  address  spe- 
cifically the  use  of  eagles  by  the  Hopis  and  the  concern  that  the 
Lyng  decision  has  created  for  our  right  to  use  and  gather  eagles, 
which  has  been  carried  on  by  our  ancestors  from  time  immemorial. 

As  I  was  sitting  here,  I  was  looking  behind  you,  where  you  see 
the  flag  of  the  United  States,  the  symbol  of  our  country,  and  the 
colors  that  you  see  there — red,  white,  and  blue,  and  yellow — rep- 
resents the  types  of  corn  that  my  ancestors  have  been  raising  for 
hundreds  and  hundreds  of  years.  The  yellow  tassels  to  the  Hopis 
represent  the  tassels  of  the  corn,  and,  if  you  notice,  at  the  very  top 
sits  and  eagle.  So  the  eagle  is  also  very  important  to  our  Constitu- 
tion and  to  our  Government,  and  certainly  to  the  Native  Americans 
who  must  use  the  eagles  to  carry  on  their  ancient  traditional  cere- 
monies. 

The  use  of  eagles  is  so  important  to  the  Hopis  that  the  founding 
fathers  who  drafted  the  Hopi  Constitution  put  in  a  provision  for 
the  protection  of  eagle  gathering  territories  and  the  right  to  gather 
eagles.  The  United  States  acknowledged  our  right  to  gather  eagles, 
and  through  an  agreement  exempted  the  Hopi  Tribe  from  "all  rules 
and  regulations  that  may  be  incompatible  with  any  of  the  provi- 
sions of  said  Hopi  Constitution  and  byelaws." 

The  Hopi  gathering  of  eagles  has  also  been  acknowledged  in 
many  legal,  anthropological,  and  other  sources.  Recently,  for  exam- 
ple, the  United  States  Supreme  Court  took  note  of  Hopi  gathering 
in  upholding  the  Federal  regulations  of  eagle  taking  by  Indians  for 
commercial  purposes  in  United  States  v.  Dion.  So  I  hope,  that  given 
these  provisions,  the  amendments  being  proposed  will  build  on  the 
foundation  rather  than  threaten  it. 


231 

I  would  also  like  to  say  this  morning  that  on  my  way  here  I  was 
reading  a  paper,  an  article  which  appeared  in  Arizona  Republic, 
which  I  think  depicts  graphically  how  Indian  religions  are  being 
eroded  and  destroyed  by  people  who  deal  in  the  theft  and  sale  of 
religious  objects,  and  I  would  like  to  also  enter  that  for  the  record 
because  it  is  a  graphic  depiction  of  what  can  happen  to  a  culture. 

So  thank  you  very  much  for  giving  me  this  opportunity,  and  the 
Hopi  Tribe  stands  ready  to  assist  you  in  any  way  they  can.  Thank 
you  very  much. 

[The  prepared  statement  of  Chairman  Masayesva  follows:] 

Chairman  Vernon  Masayesva,  the  Hopi  Tribe 

Good  morning,  Mr.  Chairman,  Members  of  the  Subcommittee.  I 
am  Vernon  Masayesva,  Chairman  of  the  Hopi  Tribe. 

On  behalf  of  the  Hopi  Tribe,  I  would  like  to  thank  the  Sub- 
committee for  inviting  me  to  present  testimony  on  the  American 
Indian  Religious  Freedom  Act  (AIRFA),  and  the  statute's  effective- 
ness in  protecting  our  rights  to  continue  the  practice  of  our  tradi- 
tional religion. 

At  the  outset,  I  must  inform  the  Subcommittee  that  my  remarks 
relative  to  the  Hopi  religion  must  be  general  in  nature.  Some 
things  should  only  be  discussed  in  certain  settings  and  only  by  reli- 
gious authorities.  However,  I  recognize  the  need  to  bring  certain 
matters  to  your  attention  in  order  for  you  to  understand  the  Hopi 
people's  concern  and  interest  in  protecting  our  religious  freedom. 

I  would  like  to  emphasize  that  religious  freedom  concerns  the  be- 
lief that  people  have  an  inherent  right  to  practice  their  particular 
religion.  This  right  includes  the  places  and/or  sacred  objects  in- 
volved in  the  practice  of  the  religion.  This  United  States  govern- 
ment was  founded,  in  part,  by  people  who  came  to  this  country  to 
escape  religious  persecution  in  their  own  countries.  The  fathers  of 
the  United  States  Constitution  recognized  the  need  for  protecting 
the  religious  freedom  of  the  individual  from  governmental  inter- 
ference and  adopted  the  freedom  of  religion  clause  in  the  First 
Amendment  to  the  United  States  Constitution. 

In  addition  to  the  First  Amendment,  the  Congress  sought  to  pro- 
tect and  preserve  the  rights  of  Indian  and  Native  American  people 
through  the  enactment  of  AIRFA.  However,  the  Act  failed  to  spe- 
cifically provide  a  judicially  enforceable  right.  This  failure  became 
apparent  with  the  recent  Supreme  Court's  decision  in  Lyng  v. 
North  West  Indian  Cemetery  Association. 

The  Supreme  Court  held  that,  in  spite  of  the  freedom  of  religion 
clause  of  the  First  Amendment  and  the  American  Indian  Religious 
Freedom  Act,  did  not  provide  Native  Americans  with  any  legal 
cause  of  action.  The  practical  result  of  the  Court's  decision  was  that 
Native  Americans  had  no  enforceable  right  to  have  their  religious, 
ceremonial  and  sacred  sites,  located  on  federal  land,  protected  from 
governmental  action  that  threatens  the  site. 

This  ruling  has  the  potential  of  allowing  the  incidental  destruc- 
tion or  desecration  of  sacred  sites  and  sacred  objects  thereon,  with- 
out giving  the  Native  American  people  any  recourse.  Therefore,  the 
Hopi  Tribe  would  support  legislation  to  amend  the  American  In- 
dian Religious  Freedom  Act,  to  provide  the  Native  American  people 


232 

a  mechanism  to  protect  sacred  sites  and  ceremonial  objects  on  pub- 
lic and  private  lands. 

Let  me  emphasize  that  sacred  sites  and  ceremonial  objects  are 
inseparable  when  discussing  the  issue  of  American  Indian  religious 
freedom  protections.  In  fact,  ceremonial  objects  are  the  first  aspect 
of  care  and  concern  in  carrying  out  religious  rituals  and  practices. 

Today,  our  religious  leaders  and  elders  are  saddened  by  the  lack 
of  concern  non-Hopi  people  have  for  our  ceremonial  and  sacred 
sites  and  objects.  We  are  continually  faced  with  the  destruction  and 
desecration  of  many  of  our  ceremonial  and  sacred  sites,  and  sacred 
objects. 

One  of  the  most  important  customs  of  the  Hopi  Tribe  is  the  use 
of  eagles  and  eagle  feathers  in  the  practice  of  our  religion.  The 
eagle  and  eagle  feathers  are  fundamental  to  our  religious  beliefs. 
Hence,  the  gathering  of  eagles  for  religious  practice  is  an  indispen- 
sable part  of  our  religion.  The  Hopis  have  been  practicing  eagle 
gathering  since  time  immemorial.  So  important  are  eagles  to  our 
religion  and  our  traditional  land  base  that  in  1936  the  Hopis  in- 
cluded eagle  territories  and  the  right  to  gather  eagles  in  their  Hopi 
Constitution  and  By-Laws  (Article  IV).  The  U.S.  Government  ac- 
knowledged the  importance  of  eagles  to  Hopi  religion  by  exempting 
the  Hopi  Tribe  from  "all  rules  and  regulations  that  may  be  incom- 
patible with  any  of  the  provisions  of  said  Constitution  and  By- 
Laws."  (Hopi  Constitution  and  By-Laws.  Art.  IV). 

Hopi  gathering  of  eagles  of  sacred  religious  purposes  is  also  ac- 
knowledged in  many  legal,  anthropological  and  other  sources.  See 
for  example  Healing  v.  Jones.  210  F.  Supp.  at  160  N.  45;  Wilson 
v.  Block.  708  F  2d  735,  740  (D.C.  Cir.  1983)  and  "Inside  the  Sacred 
Hopi  Homeland."  162  National  Geographic  607,  609,  626-629  (No- 
vember 1982).  Recently,  even  the  U.S.  Supreme  Court  took  note  of 
Hopi  gathering  in  upholding  federal  regulation  of  eagle  taking  by 
Indians  for  commercial  purposes.  United  States  v.  Dion.  106  S.  Ct. 
2216.2221.  (1986). 

The  right  of  Hopis  to  take  eagles  for  religious  purposes  is  further 
secured  by  the  First  Amendment  of  the  U.S.  Constitution,  the 
Treaty  of  Guadalupe  Hidalgo,  the  Act  of  June  14,  1934  (PL  73- 
352),  the  Settlement  Act  of  1974  and  1980  Amendments,  and  25 
U.S.C.  S1802U). 

Today,  the  Hopis  hold  a  Federal  Fish  and  Wildlife  Permit  (16 
U.S.C.  668a.  PRT-707073)  to  gather  eagles  within  the  Hopi  Tradi- 
tional Land  base,  which  includes  both  Navajo  and  Hopi  Reserva- 
tions, as  well  as  private  and  public  lands  within  Coconino,  Navajo 
and  Apache  Counties.  The  Lyng  decision  clearly  threatens  our  abil- 
ity to  gather  eagles  and  eagle  feathers  on  public  lands. 

We  need  a  legislative  vehicle  that  provides  a  legal  course  of  ac- 
tion enforcing  religious  rights  when  Native  Americans  are  denied 
access  to  sacred  sites  and/or  are  disturbed  during  the  practice  of 
their  religious  ceremonies  and  rites  and/or  access  to  sacred  objects. 
At  the  very  least,  such  a  proposal  should  require  that  Native  Amer- 
icans be  consulted  whenever  their  religious  beliefs  or  sites  are  af- 
fected or  could  be  affected  by  federally-funded  or  assisted  action. 

Further,  we  are  deeply  concerned  that  ceremonial  objects  so  criti- 
cal to  Hopi  religion  are  being  lost  to  thieves  and  collectors.  Hun- 
dreds of  Hopi  religious  and  ceremonial  objects  held  by  public  muse- 


233 

urns  and  private  collectors  must  be  returned  to  the  proper  societies 
and  authorities  at  Hopi.  Sadly,  missing  are  some  of  the  more  sig- 
nificant, irreplaceable  objects.  Theft  alone  has  been  the  sole  reason 
for  discontinuing  some  important  religious  rituals  and  practices. 

Many  ceremonial  objects  are  known  to  be  held  by  certain  collec- 
tors. Others  are  missing,  but  there  whereabouts  are  unknown. 
They  are  believed  to  be  held  by  collectors  throughout  the  United 
States  and  the  world.  The  Native  American  Graves  protection  and 
Repatriation  Act  (NAGPRA)  provides  establishes  a  system  by 
which  sacred  objects  are  returned  to  the  Tribe  of  origin.  The  Act 
has  enforcement  provisions.  Thus,  in  protecting  basic  religious 
rights,  the  American  Indian  Religious  Freedom  Act  should  be  co- 
ordinated with  NAGPRA  provisions. 

We  must  warn  the  Subcommittee,  however,  while  supporting  the 
concept  of  a  legislative  solution,  I  am  concerned  that  it  must  be 
carefully  crafted  to  not  affect  the  complicated  state  of  affairs  in 
Northern  Arizona  relating  to  the  historic  Hopi-Navajo  land  dispute. 
Arguably,  there  are  Hopi  religious  sites  on  Navajo  and  vice-versa. 
Certain  of  these  sites  are  already  the  subject  matter  of  important 
litigation  pending  in  Arizona  and  having  a  direct  impact  on  the  re- 
location process.  It  strikes  me,  with  all  respect,  that  it  would  be  in- 
appropriate for  Congress  to  inadvertently  affect  the  disposition  of 
such  cases  already  proceeding  before  the  federal  courts. 

In  closing,  let  me  express  my  appreciation  to  present  testimony 
on  this  important  issue.  As  the  Chairman  of  a  Tribe  whose  people 
believe  protection  of  religious  customs  lies  at  the  very  core  of  our 
continued  existence,  I  applaud  this  undertaking.  The  Hopi  Tribe  is 
prepared  to  work  with  the  Committee  to  develop  a  proposal  that 
addresses  the  problems  created  by  the  Lyng  decision  and  ensures 
the  protection  of  our  religious  freedom. 

I  sincerely  thank  the  Subcommittee  for  providing  this  oppor- 
tunity to  testify  on  this  very  important  topic. 

[Editor's  note. — News  article,  "Curse  of  the  Taalawtuma,"  may 
be  found  in  its  entirety  in  the  hearing  file.] 

[Introductory  paragraphs  of  the  newspaper  article  follow:] 


234 


ATE 
ITION 


THE  ARIZONA  Rl 


Copyright  1993.  The  Arizona  Republic 


da\.  March  14.  1993 


Phoenix,  Arizona 


™.l  CURSE 

rSI  TAALAWTUMSI 


*  he  thoughtless  act  of  (wo 
i      Arizona  pothunters  15 
years  ago  devastated  an 
entire  generation  of  young 
Hopis,  and  nearly 
destroyed  their  centuries-old  reli- 
gion. 

It  happened  when  two  Safford 
men.  looking  for  Indian  artifacts, 
stumbled  upon  a  cave  in  which 
four  large  wooden  idols  were 
"asleep"  on  a  bed  of  feathers. 
The  objects  were  the  taalawtumsi, 
(pronounced  tah-LAO-toom-see) 
the  Hopis'  most  sacred  and  secret 
deities,  whose  presence  is 
required  for  Hopis  to  be  initiated 
into  manhood. 

With  visions  of  making  thou- 
sands of  dollars  on  the  Indian  arts 
black  market,  the  pothunters 
grabbed  the  taalawtumsi  and  ran. 
(A  portion  of  the  idol  Dawn 
Woman  is  seen  at  right.) 
Tragically,  the  collector  who 
bought  the  idols,  fearing  arrest, 
says  he  chopped  them  up  and 
burned  them.  Under  U.S.  law,  it 
was  theft.  To  the  Hopis.  it  was 
kidnapping  and  murder. 

Tragedy  and  misfortune,  even 
death,  have  followed  those  who 


How  the  thieves 

of  time  stole  the 

Hopis'  religion 


mistreated  the  taalawtumsi  —  a 
curse,  some  of  them  believe. 

A  rizona  Republic  reporters 
Richard  Robertson  and  Paul 
Brinkley-Rogers  spent  four 
months  investigating  the  15- 
year  mystery  of  the 
taalawtumsi,  piecing  together 
for  the  first  time  the  story  of  the 
deities'  journey. 

The  reporters  picked  up  the 
trail  in  Shungopavi,  the  Hopi 
village  that  suffered  the  loss, 
and  began  the  difficult  task  of 
tracking  down  and  confronting 
people  who  were  often 
unknown  even  to  one  another. 

The  Hopis,  who  for  centuries 
had  refused  to  even  acknowl- 
edge the  existence  of  the 
taalawtumsi,  agreed  to  talk 
about  how  the  disappearance 
affected  their  whole  society. 
Some  of  them  believe  the 
taalawtumsi  were  not 
destroyed.  They  say  they  hear 
the  taalawtumsi  s  cries  in  the 
w  ind,  asking  to  come  home. 

This  fascinating  tale  of 
crimes  against  society  and  the 
clash  of  cultures  starts  on 
Page  A 16. 


235 

Mr.  Richardson.  I  understand  that,  Mr.  Powless,  you  are  rep- 
resenting the  Oneida  Tribe. 

STATEMENT  OF  MARK  A  POWLESS 

Mr.  Powless.  Yes,  sir.  Mr.  Chairman,  I  would  like  to  thank  you 
for  this  opportunity  to  be  here  today,  and  I  would  like  to  extend 
greetings  to  you  on  behalf  of  the  Oneida  Tribe  of  Indians  of  Wiscon- 
sin. I  am  here  on  behalf  of  our  Chairman  Richard  Hill. 

Today,  I  want  to  talk  to  you  about  the  eagle  and  how  it  relates 
to  us  Indian  people.  We  as  Native  American  people  have  under- 
stood that  we  are  related  to  the  animals.  As  far  back  as  we  could 
remember,  we  have  always  held  the  animal  world  with  the  highest 
regard  as  the  animals  are  our  helpers  and  our  relatives.  It  is  with- 
in this  regard  that  we  have  come  here  today  to  speak  on  behalf  of 
our  right  to  exercise  our  religious  beliefs. 

We  have  been  given  original  instructions  on  how  we  are  to  live 
while  here  on  Mother  Earth.  These  instructions  come  from  our  Cre- 
ator and  have  been  handed  down  from  generation  to  generation. 
We  have  always  worshiped  our  Creator  with  the  utmost  respect 
and  sincerity.  Additionally,  the  animal  world  has  always  been  part 
of  our  spiritual  way  of  life.  We  hope  and  pray  that  this  way  of  wor- 
ship may  continue  for  generations  to  come. 

Mr.  Chairman,  in  our  way  of  life,  we  believe  that  we  must  rep- 
resent future  generations.  I  am  here  today,  and  I  am  representing 
seven  generations  of  my  tribe  that  are  yet  to  come,  and  it  is  with 
those  thoughts  and  those  feelings  that  I  come  here  today  and  want 
to  speak  to  you  about  the  eagle. 

To  the  Indian  people,  the  eagle  is  the  most  sacred  animal  on  our 
Mother  Earth,  and  the  eagle  itself  is  the  one  that  is  the  closest  to 
the  Creator.  In  our  teachings  in  our  traditional  way  of  life,  the 
eagle  sits  on  our  tree  of  peace  and  watches  over  our  people  and 
warns  us  of  any  harm  or  any  danger  that  might  come  to  our  peo- 
ple. 

To  us,  the  eagle  is  very  sacred.  It  is  very  sacred  in  that  it  has 
a  spiritual  strength  and  power  for  us.  The  eagle  can  do  many 
things  for  us  and  is  a  helper  to  us.  We  have  a  ceremony  in  our 
tribe  that  when  a  person  passes  away  and  dies,  there  is  a  lot  of 
grief  that  goes  with  that,  from  the  loss  of  a  loved  one,  and  we  have 
a  bald  eagle  feather  that  we  use  to  wipe  away  the  tears  from  the 
eyes  of  the  individual,  to  wipe  away  the  hearing,  that  they  could 
hear  again. 

When  you  are  in  grief  and  you  are  in  mourning  for  the  death  of 
a  person,  it  is  kind  of  hard  for  you  to  talk;  you  have  a  lump  in  your 
throat,  and  you  can't  really  talk,  or  you  really  can't  see,  or  you  real- 
ly can't  hear.  Well,  this  eagle  feather  is  used  to  help  the  individual 
in  a  spiritual  sense  to  once  again  put  together  their  mind,  body, 
and  spirit.  The  eagle  is  a  part  in  a  way  of  our  life  and  our  spiritual- 
ity. 

Mr.  Chairman,  I  would  like  to  relate  a  story  to  you,  and  I  will 
deviate  from  my  testimony  for  a  minute.  I  think  it  is  important.  I 
come  from  Wisconsin,  and  in  northern  Wisconsin  we  have  got  about 
as  much  snow  as  you  guys  got  here,  and  I  was  reminded  of  a  friend 
of  mine.  He  is  a  traditional  man,  and  he  was  raised  in  our  tradi- 
tional Indian  way.  He  uses  Indian  tobacco  to  pray  to  the  Creator, 


236 

and  he  used  this  tobacco  to  hunt  for  deer.  He  lived  way  up  in  the 
northern  part  of  Wisconsin,  and  he  and  his  family  lived  off  the 
land. 

He  made  a  prayer  one  morning  to  go  out  and  get  a  deer  to  feed 
his  family,  and  he  went  out  in  the  woods  on  a  winter  morning,  and 
about  the  middle  of  the  day  the  clouds  started  coming  in  and  it 
started  to  snow,  and  the  snow  got  heavier.  During  the  latter  part 
of  the  day  he  shot  a  deer,  and  he  wasn't  able  to  get  that  deer  out 
of  the  woods  that  evening  because  of  the  storm.  He  had  to  leave 
it  there.  Later  on,  he  found  out  that  it  was  left  there  for  a  reason, 
but  at  the  time  he  didn't  know  what  that  reason  was. 

The  next  day  he  went  back  to  get  that  deer,  and  when  he  re- 
turned he  found  that  there  was  a  large  number  of  eagles  that  were 
feasting  on  this  deer,  and  through  his  spirituality  and  through  his 
belief  in  the  Creator  he  came  to  understand  that  this  deer  that  he 
caught  was  for  the  eagles;  this  deer  was  food  for  them  because  of 
the  harsh  winter  that  they  had  that  particular  year.  Through  that, 
an  eagle  gave  itself  to  him;  an  eagle  presented  itself  to  him. 

The  way  that  things  are  today  and  the  way  that  the  laws  are 
written  today,  I  guess  it  would  be  an  illegal  activity,  I  guess  it 
would  be  against  the  law  for  him  to  take  this  eagle.  However,  he 
did  take  this  eagle  in  a  spiritual  sense,  and  today  they  use  it  in 
their  ceremonies,  they  pray  with  it,  and  they  use  it  in  their  every- 
day life. 

I  would  like  to  thank  you  for  this  time  to  present  this  testimony 
to  you,  and  I  submit  it  for  the  record  on  behalf  of  the  Oneida  Tribe 
of  Indians  of  Wisconsin. 

[Prepared  statement  of  Mr.  Powless  follows:] 

Testimony  of  the  Oneida  Tribe  of  Indians  of  Wisconsin 

I  would  like  to  take  this  opportunity  to  extend  the  greetings  on 
behalf  of  the  Oneida  Tribe  of  Indians  of  Wisconsin.  I  would  also 
like  to  thank  you  for  the  opportunity  to  offer  testimony  on  behalf 
of  my  people  on  the  need  for  Federal  legislation  to  protect  our 
rights  and  the  free  exercise  of  our  religious  beliefs  as  Native  Amer- 
ican people. 

In  1978,  the  United  States  Government  passed  the  American  Re- 
ligious Freedom  Act  for  the  purpose  of  protecting  and  preserving 
the  right  of  tribal  religious  freedom.  It  has  become  very  evident 
that  policies  alone  are  not  sufficient  in  the  protection  of  our  rights. 
We  are  therefore  recommending  in  the  strongest  terms  possible 
that  the  Congress  amend  the  American  Indian  Religious  Freedom 
Act  to  help  protect  and  preserve  our  basic  human  right  to  exercise 
our  religious  beliefs  without  fear  from  the  dominant  society. 

Today,  it  is  ironic  that  we  must  convey  these  words  on  behalf  of 
our  people  as  the  early  settlers  and  immigrants  known  as  colonists 
came  to  our  country  because  in  Europe  they  had  been  persecuted 
for  exercising  religious  beliefs.  In  fact,  they  came  here  in  search  of 
religious  freedom.  We  have  suffered  many  times  over  at  the  hands 
of  the  Europeans.  The  ultimate  insult  is  the  harm  to  our  spiritual 
being  that  we  have  endured  for  centuries,  we  can  cite  many  injus- 
tices as  I  am  sure  my  brothers  will.  However,  we  come  here  today 
to  extend  our  hand  in  peace  so  that  we  might  make  a  better  day 
for  our  children.  Let  it  be  known  that  the  Oneida  Tribe  of  Indians 


237 

of  Wisconsin  strongly  encourages  this  Subcommittee  to  swiftly  take 
action  to  amend  the  1973  Act  to  protect  our  religious  freedom. 

We  are  told  as  Oneida  that  we  must  act  on  behalf  of  the  next 
seven  generations  of  people  yet  to  come.  It  is  with  that  thought 
that  we  convey  these  good  words  to  you.  We  hope  and  pray  that 
these  words  will  be  received  with  the  utmost  sincerity  of  our  hearts 
and  minds. 

RELIGIOUS  USE  OF  EAGLE  FEATHERS 

As  you  all  may  know,  the  eagle  is  perhaps  the  most  sacred  of  all 
animals  to  Indian  people.  It  is  the  only  animal  that  is  closest  to  the 
Creator.  Through  the  generations  the  eagle  has  watched  over  the 
Iroquois  people  and  has  warned  us  of  any  danger  and  has  cured  us 
of  many  ills. 

There  are  three  types  of  eagles  which  are  held  to  be  sacred  by 
Indian  people,  the  Bald,  the  Golden,  and  the  Spotted.  Tail  feathers 
are  a  frequently  used  in  ceremonial  rights  including  curing  the  in- 
dividual spiritually,  physically,  and  mentally. 

For  example,  it  is  often  the  case  that  tribal  members  seek  more 
traditional  ways  to  help  alleviate  the  pain  caused  from  a  loved  one 
passing  away.  Eagle  feathers  are  rubbed  on  the  grieving  persons 
ears,  around  the  eye  lids,  the  mouth,  and  over  ones  head  to  help 
the  individual  overcome  their  loss. 

Eagle  feathers  are  also  used  during  the  burial  ceremony.  Often 
times  feathers  are  placed  in  the  casket  of  the  deceased  helping  the 
spirit  of  the  deceased  persons'  journey  to  the  creators  land. 

Often  it  is  the  case  that  Native  American  vets  are  honored  with 
presentations  of  eagle  feathers  in  recognition  of  their  heroic  deeds 
in  the  service  of  their  country.  These  feathers  have  generally 
passed  on  from  generation  to  generation. 

Now  Mr.  chairman,  you  ask  "How  do  the  Indians  come  across 
such  eagle  feathers?"  In  the  traditional  way  a  person  would  fast  for 
four  days  and  nights  in  a  place  of  solitude — generally  out  in  the 
wild.  At  some  point  during  the  fasting  period  the  person  would  be 
blessed  with  an  eagle.  Through  the  sincerity  of  the  prayer,  an  eagle 
would  give  themselves  to  the  person. 

It  is  this  ceremony  which  has  most  often  been  misunderstood  by 
the  general  public.  To  some  people  this  act  would  be  considered 
contrary  to  the  preservation  of  the  eagle,  and  therefore,  against  the 
law.  However,  in  our  religious  practices  such  ceremony  is  consid- 
ered to  be  the  highest  form  of  sacrifice.  These  are  not  illegal  ac- 
tions, but  the  continuation  of  our  spiritual  way  of  life.  These  are 
the  actions  which  you  in  Congress  are  obligated  to  uphold  on  behalf 
of  the  Native  American  people. 

CONCLUSION 

As  you  may  know  the  Senate  has  introduced  legislation  amend- 
ing the  1978  Act.  The  Oneida  Tribe  of  Indians  of  Wisconsin  has  re- 
viewed the  amendment  and  fully  supports  its  passage.  We  would 
strongly  encourage  this  Subcommittee  to  follow  a  similar  path. 

We  as  Native  American  people  have  understood  that  we  are  re- 
lated to  the  animals.  As  far  back  as  we  can  remember  we  have  al- 
ways held  the  animal  world  with  the  highest  regard,  as  the  ani- 
mals are  our  helpers  and  relatives.  It  is  within  this  regard  that  we 


238 

have  come  here  today  to  speak  in  behalf  of  our  right  to  exercise  our 
religious  beliefs.  We  have  been  given  original  instructions  on  how 
we  are  to  live  while  here  on  Mother  Earth.  These  instructions  come 
from  our  creator  and  have  been  handed  down  from  generation  to 
generation,  we  have  always  worshipped  our  creator  with  the  ut- 
most respect  and  sincerity.  Additionally,  the  animal  world  has  al- 
ways been  a  part  of  our  spiritual  way  of  life.  We  hope  and  pray 
that  this  way  of  worship  may  continue  for  generations  to  come. 

Mr.  Richardson.  Thank  you  very  much. 

Chairman  Masayesva,  let  me  ask  you  a  delicate  question.  I  know 
that  with  your  tribe  and  the  large  concentration  of  Native  Amer- 
ican tribes  in  Arizona,  you  are  aware  many  tribes  have  sacred  sites 
which  are  on  the  reservation  of  a  different  tribe.  Do  you  have  any 
suggestions  for  us  as  to  how  this  subcommittee  and  the  Congress 
should  address  this  delicate  issue,  or  should  we  stay  out  of  it? 

Chairman  Masayesva.  I  believe  the  way  to  handle  that — and 
this  is  the  way  we  are  handling  it  with  the  president  of  the  Navajo 
Nation — is,  we  feel  that  rather  than  writing  rules  and  regulations 
that  protect  the  rights  of  religious  leaders'  access  to  their  sacred 
sites,  that  it  is  critical  that  the  leaders  of  both  nations  bring  the 
elders  of  both  nations  together,  educate  each  other,  to  remind  each 
other  of  the  importance  of  the  religious  pilgrimages  that  Hopis  un- 
dertake annually  to  their  sites.  Through  this  type  of  dialogue,  re- 
spect would  be  established,  and  that,  to  us,  is  a  better  approach 
than  through  a  legislative  resolution. 

But  wherever  there  are  flagrant  incidents  of  interference  with 
the  religious  rights  of  the  elders,  there  ought  to  be  some  type  of 
penalty,  and  I  think  this  would  be  acceptable  to  both  Hopis  and 
Navajos. 

But  we  are  planning  to  hold  a  meeting  of  the  elders  very  shortly 
because  we  will  be  starting  our  eagle  pilgrimages  in  about  another 
couple  of  months.  We  have  done  this  for  a  couple  of  years,  and  last 
year  for  the  first  time  there  was  no  incident  reported  anywhere 
where  Hopis  went  out  on  pilgrimage,  and  we  hope  that  the  dia- 
logue between  the  two  nations  will  put  to  permanent  rest  any  kind 
of  interruptions  with  the  pilgrimages. 

So  I  feel  that,  let's  sit  down  face  to  face  and  talk  and  understand 
each  other,  and  then  tell  our  people,  educate  our  kids,  so  they  can 
carry  on  that  respect.  To  me,  that  is  the  best  way. 

Mr.  Richardson.  That  is  a  very  good  suggestion,  Mr.  Chairman. 

Mr.  Powless,  do  you  have  any  views  on  that  issue? 

Mr.  Powless.  Mr.  Chairman,  I  believe  that  the  tribes  that  have 
these  sacred  sites  within  their  lands  ought  to  have  the  freedom  to 
exercise  utilization  of  these  sites. 

I  was  related  a  story  a  while  back  about  one  of  these  sacred  sites. 
A  university  wanted  to  put  a  telescope  on  top  of  this  mountain 
where  the  sacred  site  was. 

Mr.  Richardson.  Was  that  Mount  Graham? 

Mr.  Powless.  Yes. 

In  the  course  of  putting  this  telescope  on,  they  had  to  put  a  huge 
cement  foundation  down,  and  apparently  through  the  efforts  of  the 
construction  people  there  they  bulldozed  over  the  sacred  site  to  lay 
down  this  concrete  block  to  set  this  telescope  on.  I  think  that  is  a 
travesty,  and  I  think  it  is  a  dereliction  of  the  United  States'  respon- 


239 

sibility  to  protect  our  sacred  sites,  and  I  think  we  need  legislation 
to  protect  that. 

Mr.  Richardson.  A  very  good  point. 

Let  me  ask  Ms.  Atkinson:  How  do  we  resolve  the  current  access 
problem  to  bald  eagles?  Do  you  think  we  should  do  it  through  legis- 
lation, or  should  we  do  it  through  regulations  and  agency  policy 
changes?  What  would  be  your  view  on  how  we  resolve  the  access 
issue? 

Ms.  Atkinson.  Probably  the  most  effective  way  would  be  through 
legislation  directing  the  current  administration  or  the  current  Fish 
and  Wildlife  Service  to  review  its  policies  and  looking  at  ways  that 
it  can  streamline  the  current  process.  I  fear  that  if  we  leave  it  just 
to  regulation  that  it  may  not  get  done  without  some  sort  of  direc- 
tive that  this  sort  of  review  and  modification  of  policy  needs  to 
occur. 

Mr.  Richardson.  Mr.  Powless,  is  that  your  view  also?  You 
touched  on  the  eagles  issue. 

Mr.  Powless.  Yes.  I  would  like  to  add  that  I  also  feel  that  there 
should  be  a  provision  that  would  allow  the  tribe  also  to  regulate 
an  activity,  and  I  believe  that  they  should  have  the  authority  also 
through  their  governmental  authorities  to  provide  access  to  eagles 
within  their  jurisdiction  through,  I  believe,  legislation  that  would 
be  compatible  with  that. 

Mr.  Richardson.  Chairman  Masayesva,  does  the  tribe  currently 
have  any  major  access  problems  relating  to  the  eagle  issue  right 
now? 

Chairman  Masayesva.  Not  in  public  lands  like  national  forests. 
The  Bureau  of  Land  Management,  we  have  an  agreement  with 
them  where  they  cooperate  with  the  Hopi  religious  leaders  in  gath- 
ering eaglets,  and  we  have  an  arrangement  where  we  are  allowed 
to  take  only  a  certain  number  every  year.  So  we  have  close  coopera- 
tive relations  with  the  United  States  Government. 

The  area  where  we  had  problems  was  primarily  on  Hopi  parti- 
tioned lands,  Navajo  partitioned  lands,  and  in  the  Navajo  1934  res- 
ervation where  several  of  our  people  were  arrested  by  the  Navajo 
police  about  3  years  ago,  but  those,  hopefully,  are  incidents  that 
have  now  been  put  to  rest  through  a  dialogue  between  the  two 
tribes. 

Mr.  Richardson.  Let  me  again  thank  you  for  appearing.  It  has 
been  a  very  good,  strong  panel,  and  again,  my  apologies  to  the  Hopi 
chairman.  My  thanks  to  all  of  you,  and  please  extend  our  best  to 
Chairman  Hill.  I  think,  Mr.  Powless,  you  represented  him  very 
well. 

Mr.  Powless.  Thank  you. 

Mr.  Richardson.  Ms.  Atkinson,  thank  you  very  much  panel 
number  three. 

Now,  panel  number  four.  We  would  like  to  call  Mr.  Ben  Carnes 
from  Oklahoma  City,  Oklahoma;  and  Mr.  Bud  Johnston  of  the 
Pipestone  Indian  Community  in  Sioux  Falls,  South  Dakota,  I  un- 
derstand a  constituent  of  Mr.  Johnson.  Mr.  Johnson  has  recognized 
you.  I  want  to  thank  both  of  you  for  coming. 

As  you  know,  the  subcommittee  will  insert  your  full  statements 
in  the  record,  and  we  ask  that  you  summarize,  observing  the  five- 
minute  rule. 


240 
Mr.  Carnes,  please  proceed. 

PANEL  CONSISTING  OF  BEN  CARNES,  CHAHTA  NATION,  DI- 
RECTOR, SPIRITUAL  ALLIANCE  FOR  NATIVE  PRISONERS, 
OKLAHOMA  CITY,  OK;  AND  BUD  JOHNSTON,  ENROLLED 
MEMBER,  BAD  RIVER,  NORTHERN  WISCONSIN,  CfflPPEWA, 
ON  BEHALF  OF  THE  PD7ESTONE  NATIVE  AMERICAN  COMMU- 
NITY, SIOUX  FALLS,  SD 

Statement  of  Ben  Carnes 

Mr.  Carnes.  My  name  is  Ben  Carnes.  I  am  of  the  Chahta  Na- 
tion, from  a  place  that  we  call  the  Native  Territories  and  other  peo- 
ple call  Oklahoma. 

On  August  11,  1978,  we  thought  we  had  time  and  reason  to  cele- 
brate because  they  had  passed  a  law  guaranteeing  us  our  right  to 
f>ractice  and  pray  in  our  traditional  ways.  It  seems  like  within  the 
ast  few  years  we  have  an  attack  upon  our  religious  beliefs.  So  we 
thank  you  for  this  opportunity  to  fix  an  Act  that  has  not  worked 
for  us. 

Myself,  I  am  a  convicted  felon,  and  also  as  a  juvenile  I  spent  al- 
most two-thirds  of  my  past  life  in  juvenile  and  adult  detention  fa- 
cilities. Throughout  those  times  in  these  places,  I  began  to  discover 
my  identity  as  a  Native  person  and  also  began  to  discover  the  his- 
tory of  my  people  and  all  my  relatives  from  across  this  country 
here,  about  the  abuses  that  went  on  early  in  the  1800s  with  the 
land  thefts.  Everything  that  went  on  there  was  terrible,  and  it  had 
such  a  very  devastating  effect  upon  me,  discovering  who  I  am,  that 
I  began  to  indulge  in  several  years  of  drug  abuse  and  alcoholism 
and  also  justified  my  criminal  activities  by  stating  that  it  was  be- 
cause the  white  man  stole  my  land  from  my  and  I've  got  a  right 
to  take  whatever  I  want.  That  was  my  rationalization  for  whatever 
I  did  during  that  time. 

In  1978,  I  entered  the  Oklahoma  Department  of  Corrections  for 
a  2-year  sentence  for  second-degree  burglary,  and  it  was  there  that 
I  met  more  of  my  relatives  from  the  western  parts  of  the  United 
States,  or  Oklahoma,  our  Native  Territories,  and  these  were  the 
people  who  were  of  the  Kiowa  Nation,  Cheyenne  Nation,  Apaches, 
Comanches,  and  from  them  I  learned  about  our  ceremonies,  about 
the  Native  American  Church,  and  I  learned  about  the  beauty  of  the 
traditional  pow-wows  or  dances  there,  where  people  come  to  social- 
ize and  celebrate  the  birth  of  somebody's  family  or  the  passing  of 
somebody's  family.  These  were  things  that  were  not  taught  to  me 
because  I  was  raised  in  a  non-Indian  atmosphere  with  their  val- 
ues, and  I  was  baptized  as  a  Presbyterian  when  I  was  two  years 

At  that  time,  when  I  began  to  discover  all  my  religious  identity 
as  a  Native  person,  Christianity  meant  nothing  to  me  then,  but  I 
was  very  angry  that  I  had  no  identity.  I  was  on  this  path  of  self- 
destruction  for  a  number  of  years  until  I  entered  the  prison  system 
in  1981  with  a  12-year  sentence  for  second-degree  burglary  and  a 
10-year  sentence  for  knowingly  selling  stolen  property,  which  were 
concurrent. 

I  was  sent  to  Younger  Prison  in  Oklahoma  until  I  was  involved 
in  a  barricade  riot  in  the  east  cell  house  of  the  state  reformatory, 
and  I  was  sent  to  the  state  penitentiary  in  McAlester  and  put  in 


241 

solitary  confinement  for  a  period  of  90  days.  During  that  time,  I 
had  a  lot  of  anger  from  all  those  years.  The  abuses  I  saw  in  the 
prison  system  that  were  going  on  just  on  that  unit  alone  caused  me 
a  lot  of  anger  and  a  lot  grief — the  way  Indians  were  being  treated, 
being  handcuffed  and  being  beaten  by  several  prison  guards — and 
there  was  nothing  we  could  do  but  kick  the  guards  just  to  irritate 
them. 

One  night,  I  was  lying  there,  and  I  kept  thinking  about,  there 
has  got  to  be  another  way  to  do  these  things,  and  I  began  to  find 
out  from  other  inmates  how  to  do  legal  research,  and  I  eventually 
became  a  jail  house  lawyer  there.  That  is  when  I  began  to  find  out 
that,  as  a  Native  prisoner  inside  any  State  or  Federal  prison,  we 
had  a  right  to  practice  in  our  traditional  way.  I  researched  the  case 
law  that  supported  our  right.  This  was  in  the  1970s,  right  about 
the  time  of  the  Religious  Freedom  Act,  and  it  still  had  some  effect 
on  a  lot  of  the  State  and  Federal  agencies  in  which  they  began  to 
recognize  our  religious  rights. 

As  time  went  on  during  my  second  incarceration,  the  Department 
of  Correction  implemented  the  Grooming  Code  that  prohibited  the 
wearing  of  long  hair,  and  we  ended  up  in  a  lawsuit  over  this  right. 
By  the  time  we  went  to  jury  trial,  the  Supreme  Court  had  issued 
a  decision  in  the  case  of  Shabazz  v.  Alone,  which  is  the  rationally 
related  test,  that  type  of  thing,  which,  in  fact,  the  prison  officials 
deemed  as  a  security  threat;  that  is  all  they  had  to  say;  they  didn't 
have  to  prove  that.  So  the  basis  of  the  burden  of  proving  our  reli- 
gious belief  and  our  sincerity  was  upon  us. 

The  current  situation  in  Oklahoma  is  that  if  we  want  to  wear  our 
hair  long  we  have  to  prove  our  sincerity,  and  they  have  not  told 
us  how  much  proof  we  need  for  sincerity.  They  can't  give  us  a 
measurement — you  know,  is  this  much  sufficient  sincerity  or  this 
much  here? 

You  know,  a  lot  of  our  people  are  not  very  well  educated  as  far 
as  writing  down  essays,  which  is  required  of  them,  and  in  their 
writing  they  speak  of,  you  know,  "It's  our  culture,  it's  our  custom, 
it's  our  tradition,  to  wear  our  hair  long."  This  committee  was  made 
up  of  maybe  a  security  major  or  a  chaplain,  and  the  case  manager 
says,  "Well,  you  say  tradition,  so  it  is  not  religious;  we  are  denying 
you  an  exemption."  Another  inmate  who  filed  for  an  exemption  who 
was  visibly  Indian — you  could  tell  by  looking  at  him — the  security 
major  asked  him,  "How  long  have  you  been  an  Indian?" 

These  people  have  no  understanding  of  our  beliefs,  our  religion, 
and  our  ways,  and  we  cannot  have  this.  This  is  not  how  you  judge 
our  religion.  Our  religion  is  not  a  privilege  that  we  have  to  earn 
and  conduct  ourselves  in  a  certain  way  to  hold  on  to. 

We  need  this  type  of  legislation  that  would  put  the  burden  back 
on  the  Department  of  Corrections  or  any  prison  system.  Now,  if 
they  have  a  valid  security  threat,  you  know,  show  it  to  us,  show 
us  that  threat,  and  we  will  work  with  them  to  try  to  find  an  alter- 
native, and  if  there  is  not  an  alternative  then  we  will  have  to  go 
to  court,  but  as  it  is,  it  is  on  us.  That  is  not  right,  that  is  not  how 
it  should  be.  There  is  great  difficulty  put  on  us. 

Some  of  the  things  we  have  had  problems  with  in  Oklahoma  are 
that,  we  have  not  had  a  sweat  lodge  until  the  last  two  years,  and 
at  some  of  the  institutions  that  we  have  been  trying  to  get  them 


242 

at,  they  have  refused  to  allow  us  to  have  that.  Their  claims  are  al- 
ways the  same,  that  they  are  afraid  that  we  are  going  to  sit  in 
there  and  plan  escapes,  plan  murders,  or  engage  in  homosexual  ac- 
tivities. 

Such  ideas  and  fallacies  are  repulsive  to  us  and  make  us  very 
angry  when  we  hear  these  things  from  so-called  educated  men  who 
are  representing  the  State  of  Oklahoma  or  any  other  State,  because 
we  have  evidence  and  documents  from  other  correctional  adminis- 
trators who  have  allowed  sweat  lodges  and  say  there  has  been 
nothing  but  good  results  that  come  from  those.  Native  inmates  who 
had  been  a  problem  before  but  who  had  participated  in  sweat  lodge 
ceremonies  had  a  total  change  in  their  behavior.  They  become  more 
positive,  more  productive,  more  concerned  about  their  self-appear- 
ance. It  is  a  change  that  has  never  been  achieved  in  correction  be- 
fore on  any  prisoner.  Our  Native  belief  is  a  positive  and  effective 
rehabilitation  that  must  be  allowed. 

One  of  the  last  things  I  want  to  mention  before  I  close  is  that 
people  who  say  that  the  person  should  have  thought  about  his  reli- 
gion before  he  went  to  prison — that  is  not  the  point.  The  point  is 
that  this  person  gets  into  prison  and  discovers  his  religion  right 
there,  by  all  means  he  should  be  encouraged,  not  denied,  harassed, 
and  punished,  because  these  people  who  have  been  punished, 
locked  up,  had  additional  years  put  on  their  sentence  for  defending 
the  right  to  wear  their  hair  long,  to  me,  does  not  indicate  a  person 
who  is  antisocial.  This  indicates  a  person  who  has  found  his  iden- 
tity and  who  is  willing  to  fight  to  hold  on  to  that. 

So  when  you  do  some  things  with  this  resolution,  this  bill,  pro- 
tect these  people.  I  think  one  of  the  strongest  incentives  that  any 
bill  could  have  is  deny  Federal  aid  to  any  State  or  agency  that  has 
not  complied  with  the  provisions  of  this  law.  I  think  there  are  no 
other  teeth  we  could  put  in  that  would  be  as  effective  as  that. 

Thank  you. 

[Prepared  statement  of  Mr.  Carnes  follows:] 

Statement  of  Ben  Carnes,  Director,  Spiritual  Alliance  for 
Native  Prisoners,  Oklahoma  City,  OK 

introduction 

I  am  Ben  Carnes  of  the  Chahta  Nation.  I  am  the  person  that 
many  people  have  looked  down  upon  and  cursed.  I  am  someone 
that  represented  the  criminal  element  in  this  country  who  society 
felt  should  be  locked  away  forever.  Not  it  is  those  people  who  look 
to  me  with  respect  and  call  me  friend  or  brother 

Between  the  date  of  November  7,  1972,  to  January  3,  1991, 1  was 
in  the  custody  of  juvenile  and  adult  correctional  systems,  except  for 
those  times  I  was  able  to  liberate  myself  from  captivity. 

Throughout  those  periods  I  was  held  in  custody.  I  was  in  con- 
stant struggle  with  my  self  and  my  keepers  for  my  identify  and 
spirituality  as  a  Native  person.  I  have  presented  the  Senate  Select 
Committee  on  Indian  Affairs  with  a  very  detailed  statement  about 
the  history  of  religious  suppression  in  the  prisons  of  this  country. 
In  a  phone  conversation  with  Marie  Howard,  she  suggested  that 
my  statement  point  out  the  problems  and  recommend  solutions  to 


243 

those  problems  dealing  with  the  religious  rights  of  Native  pris- 
oners. 

PROBLEMS  WITHIN  THE  PRISONS 

There  is  nothing  that  comes  close  to  dramatizing  the  plight  of 
Native  prisoners,  than  a  quote  by  Chahta  elder,  Standing  Deer, 
who  said  the  "the  McAlester  prison  has  absolutely  nothing  for  us 
Indian  prisoners.  It  is  a  spiritual  wastebasket." 

It  is  those  spiritual  wastebaskets  where  our  people  exists  today, 
praying  that  trie  proposed  amendments  to  the  1978  American  In- 
dian Religious  Freedom  Act  will  address  their  concerns.  The  1978 
Act  did  give  rise  to  the  belief  that,  for  the  first  time  in  a  two  hun- 
dred year  period,  Native  prisoners  would  be  able  to  practice  their 
traditional  religious  beliefs  without  hindrance. 

However,  as  we  have  seen  in  the  majority  of  the  prisons,  the  Na- 
tive religious  beliefs  was  met  with  resistance  by  prison  officials. 
That  resistance  was  based  upon  ignorance  and  intolerance  of  a  be- 
lief completely  foreign  to  them.  Our  religious  practices  was  not  af- 
forded the  same  respect  as  other  "established  beliefs"  of  different 
faiths.  The  prison  officials  would  determine  what  constituted  a  sig- 
nificant religious  practice  and  who  was  sincere  adherent. 

A.  Long  hair 

Such  proofs  of  sincerity  have  denied  many  Native  prisoners  the 
opportunity  to  uphold  or  began  to  practice  a  traditional  religion. 
For  example,  the  proposed  amendments  provide  that  in  order  for 
a  Native  prisoner  to  wear  his  hair  long  for  religious  purposes  he 
must  show  that  the  practice  is  deeply  rooted  in  tribal  religious  be- 
liefs and  that  these  beliefs  are  sincerely  held  by  the  Native  pris- 
oner. In  Oklahoma,  the  process  required  for  proof  of  sincerity  is 
that  the  Native  prisoner  must  submit  a  written  statement  as  to 
why  he  should  be  granted  an  exemption  to  the  grooming  code.  Then 
a  committee  of  prison  officials  determine  the  depth  of  sincerity 
from  the  written  document. 

Any  committee  of  this  nature  are  made  up  of  people  who  have 
absolutely  no  working  knowledge  of  Native  beliefs  or  rituals.  In 
some  cases,  a  prisoner  may  be  denied  an  exemption  to  the  groom- 
ing code  if  he  was  not  articulate  enough  to  prepare  a  written  state- 
ment. Sometimes  the  statement  may  make  references  to  a  religious 
practice  being  a  tradition  and  be  denied  an  exemption  to  the 
grooming  code  because  the  wearing  of  long  hair  is  a  cultural  prac- 
tice and  not  a  religious  one.  Another  Native  prisoner  was  denied 
an  exemption  because  if  he  held  such  religious  beliefs  he  would  not 
have  came  to  prison. 

The  practice  of  a  First  amendment  right  should  not  be  based  on 
how  well  a  person  is  able  to  make  an  essay  of  his  court  convictions 
or  institutional  misconduct.  Obviously,  a  Christian  prisoner  would 
not  be  denied  the  right  to  attend  congregate  worship  in  the  chapel 
or  possess  a  Bible  if  he  has  been  found  guilty  of  an  institutional 
misconduct.  Nor  are  they  denied  the  choice  to  become  a  Christian 
or  Muslim  because  of  their  criminal  convictions. 

Racism  and/or  ethnocentric  views  held  by  prison  officials  have 
been  the  road  block  to  understanding  and  respect  needed  to  resolve 
many  of  the  problems.  It  is  alien  to  the  Western  school  of  thought 


244 

that  our  religion  and  culture  are  one  and  the  same,  which  is  evi- 
dent by  the  structure  of  tribal  governments  through  the  Indian  Re- 
organization Act.  We  have  an  alien  form  of  government  imposed 
upon  our  indigenous  nations,  which  goes  against  the  beliefs  of  our 
people. 

The  solution  to  the  issue  of  long  hair  in  prisons  is  to  guarantee 
this  practice  to  all  Native  prisoners.  It  should  be  the  burden  of  the 
prison  officials  to  prove  that  the  wearing  of  long  hair  is  a  'Valid 
and  significant  threat  to  security"  and  not  the  burden  of  Native 
prisoners  to  prove  there  sincerity. 

A  supporting  fact  is  that  the  Oregon  Department  of  Corrections 
have  allowed  the  wearing  of  long  hair  since  1968,  all  Canadian 
prisons  have  allowed  long  hair,  and  most  if  not  all  the  federal  pris- 
ons permit  the  wearing  of  long  hair.  To  my  knowledge  and  those 
of  other  Spiritual  Advisers  in  this  country  there  is  not  one  docu- 
mented case  of  a  Native  prisoner  with  long  hair  that  has  resulted 
in  a  significant  security  threat. 

B.  Feathers  I  animal  parts  and  sacred  objects. 

Recently,  a  hawk  wing  was  confiscated  by  guards  during  a  rou- 
tine shakedown  of  housing  units  in  a  minimum  security  prison.  A 
group  of  Native  prisoners  went  to  speak  to  the  duty  office  in  an  at- 
tempt to  have  it  returned.  However,  this  prison  official  a  Captain 
said  that  it  was  "the  Indian's  fault  that  eagles  and  hawks  were  be- 
coming extinct,"  he  also  remarked  that  the  Indians  weren't  here 
first  since  the  Indians  "traveled  over  to  this  continent  with  the  Vi- 
kings." 

In  our  beliefs,  it  is  an  honor  to  be  given  an  eagle  feather  in  a 
traditional  way.  This  is  usually  done  in  a  ceremonial  manner.  Once 
the  ceremony  is  completed  the  feather  has  been  blessed  and  is  sa- 
cred. Our  sacred  objects  are  not  be  handled  by  anyone  without  the 
"owner"  designating  someone  to  hold  it.  The  person  selected  is  usu- 
ally someone  whom  the  "owner"  feels  would  show  the  proper  re- 
spect to  the  feather  or  sacred  object  which  it  is  in  their  physical 
possession. 

One  prison  Chaplain,  who  has  condemned  Native  practices  as 
"pagan  beliefs"  has  refused  to  allow  the  current  Spiritual  Advisor 
to  bring  in  eagle  feathers  from  the  families  of  Native  prisoners, 
even  though  he  would  allow  security  officers  to  inspect  the  feather 
by  holding  it  in  full  view  of  officers.  Many  Native  prisoners  object 
to  the  Chaplain  handling  their  feathers  at  all,  due  to  his  prejudice. 

A  solution  to  the  inspection  of  eagle  feathers  or  other  sacred  ob- 
jects in  the  prison  environment,  is  to  ask  the  Native  prisoner  to 
present  the  item  in  question  for  visual  inspection.  A  process  which 
is  not  difficult  to  perform  since  there  is  nowhere  to  conceal  contra- 
band within  a  feather.  Pipes  can  be  inspected  in  this  manner  also, 
without  anyone  other  than  the  "owner"  handling  it. 

C.  Religious  facilities 

The  use  of  sweat  lodge  ceremonies  is  one  of  the  most  effective 
ceremonies  for  Native  prisoners  to  deal  with  the  despair  of  impris- 
onment. Despite  the  positive  effects  many  correctional  administra- 
tors have  observed  in  prisons  where  sweat  lodges  exist,  there  are 
still  many  prisons  where  the  sweat  lodges  are  not  permitted. 


245 

In  those  cases  where  prison  officials  have  denied  that  a  sweat 
lodge  would  be  a  threat  to  prison  security,  it  has  never  been  shown 
that  a  valid  threat  ever  existed.  Nor  has  any  prison  that  has  a 
sweat  lodge  shown  that  there  was  ever  an  incident  that  would  sup- 
port a  "security  concern." 

D.  Access  to  spiritual  advisors  and  group  ceremonies 

Native  prisoners  have  been  denied  access  to  Spiritual  Advisors  or 
participate  in  group  ceremonies,  because  they  have  not  been  able 
to  prove  that  they  are  Indian.  In  another  example,  the  Chaplain  at 
the  Oklahoma  State  Penitentiary  has  refused  admittance  to  a  Spir- 
itual Advisor  who  has  entered  several  prisons  across  the  country 
for  years.  He  told  the  current  Spiritual  Advisor  that  the  Indian 
prisoners  only  needed  one  Spiritual  Advisor,  although  several  min- 
isters and  lay  persons  of  the  same  faiths  can  be  found  throughout 
the  prison  at  any  given  time. 

CONCLUSION  AND  RECOMMENDATIONS 

In  a  report  on  crime  and  the  administration  of  justice  in  the  mi- 
nority communities,  The  Inequality  of  Justice,  prepared  by  the  Na- 
tional Minority  Advisory  Council  on  Criminal  Justice  (1982),  re- 
searchers found  that  the  "lack  of  alcohol  rehabilitation  programs, 
and  the  lack  of  cultural  identity  within  the  prison  setting  all  con- 
tribute to  the  recidivism  rate,  which  sometimes  reaches  54  percent 
among  (Native)  offenders."  In  contrast,  Chief  Archie  Fire  Lame 
Deer  testified  in  a  court  case  that  with  the  100  prisoners  he  had 
worked  with  in  a  five  year  period,  only  two  returned  to  prison. 

It  must  be  recognized  that  not  all  religious  practices  are  covered 
here,  but  they  are  some  of  the  most  predominant  in  all  the  prison, 
and  some  allowances  must  be  allowed  for  other  religious  practices 
not  mentioned  here  or  in  the  proposed  amendments. 

I  would  support  the  section  on  prisoners  rights,  if  the  solutions 
to  the  wearing  of  long  hair  were  to  be  adopted,  and  that  our  reli- 
gion would  not  be  viewed  from  the  perspectives  of  a  non-native  per- 
son. 

I  would  also  recommend  that  incentives  for  "encouraging"  prison 
systems  to  comply  with  the  provisions  of  this  proposed  amend- 
ments be  included.  One  incentive  that  would  give  this  Act  real 
teeth  is  for  any  state  that  is  found  to  be  in  non-compliance  with 
these  amendments  to  withhold  all  Federal  funding  to  the  offending 
state,  except  such  funding  that  directly  affects  Native  people.  This 
would  discourage  prison  administrators  from  placing  the  practice  of 
religion  in  the  category  of  "privileges"  which  a  Native  prisoner 
must  earn. 

The  Bill  should  also  require  prison  systems  that  have  salaried 
Chaplains  or  contract  volunteers  to  provide  equitable  funding  to 
Spiritual  Advisors.  In  Oklahoma,  all  ministers  or  contract  volun- 
teers are  compensated,  except  Spiritual  Advisors. 

A  final  recommendation  to  this  committee  is  that  the  Commis- 
sion that  is  to  investigate  all  the  state  and  federal  prisons  to  en- 
sure compliance  with  this  Bill  should  also  be  empowered  with  the 
authority  to  mediate  with  prison  officials  to  secure  religious  prac- 
tices for  Native  prisoners. 


246 

Mr.  Richardson.  Mr.  Carnes,  thank  you  for  some  very  compel- 
ling testimony.  I  want  to  make  sure  members  of  the  subcommittee 
get  a  copy  of  your  testimony. 

I  know  you  submitted  something  for  the  record.  Is  what  you  just 
stated  extemporaneously  in  your  statement? 

Mr.  Carnes.  There  is  basically  a  part  of  my  statement  there.  I 
could  have  made  it  longer,  but  I  just  got  your  letter  on  Saturday 
about  the  100  copies,  and  I  had  to  borrow  a  printer,  so  I  only  made 
it  three  pages,  to  try  to  keep  it  short  and  concise.  But  I  submitted 
one  to  the  Senate  Select  Committee  which  is  19  pages  with  ap- 
proximately 52  pages  of  documents  and  exhibits. 

Mr.  Richardson.  Well,  make  sure  we  get  all  the  copies  the  Sen- 
ate got  over  here,  because  I  think  you  have  made  some  very  inter- 
esting points  that  I  want  to  make  sure  our  subcommittee,  on  both 
sides,  is  made  aware  of. 

Mr.  Carnes.  Okay.  I  will  do  that. 

Mr.  Richardson.  Mr.  Bud  Johnston,  welcome  to  the  subcommit- 
tee. 

STATEMENT  OF  BUD  JOHNSTON 

Mr.  Johnston.  Thank  you  for  allowing  me  to  testify  on  behalf  of 
the  Pipestone  Indian  Community  in  Pipestone,  Minnesota. 

My  name  is  Bud  Johnston.  I  am  an  enrolled  member  of  Bad 
River,  Northern  Wisconsin,  Chippewa,  and  the  total  focus  of  my 
discussion  today  will  be  access  to  a  sacred  site,  mainly  the  pro- 
posed addition  of  the  Pipestone  Quarries  of  Minnesota  as  one  of  the 
44  proposed  sites. 

At  this  time,  there  are  approximately  44  tribes  who  have  actively 
quarried  in  Pipestone  in  the  last  20  years,  with  about  175  different 
people.  That  is  just  the  registered  ones  who  are  quarrying.  That 
doesn't  include  anybody  who  went  there  to  pray,  or  to  sweat,  or  to 
participate  in  a  sun  dance. 

But  I  would  like  to  read  a  letter  from  our  community  regarding 
the  situation.  We  are  asking  for  an  exemption  because  of  the  prob- 
lems with  access  to  it. 

"We,  the  Pipestone  Indian  Community,  feel  compelled  to  issue  a 
statement  regarding  proposed  amendments  to  the  American  Indian 
Religious  Freedom  Act,  specifically,  title  I.  The  Great  Pipestone 
Quarries  of  Minnesota  is  listed  as  one  of  44  sites  designated  to  be 
protected  by  the  proposed  amendments.  Some  individuals  have  ini- 
tiated petitions  and  resolutions  and  are  encouraging  support  from 
Indian  people  to  return  the  administration  of  the  Pipestone  Quar- 
ries to  the  Yankton  Sioux  Tribe.  It  is  a  further  wish  that  the  Na- 
tional Park  Service  and  the  Pipestone  Indian  Shrine  Association 
vacate  the  premises  of  the  Pipestone  National  Monument.  These 
individuals  contend  that  pipestone  is  being  marketed  in  an  unethi- 
cal manner.  We,  pipe  makers  in  the  Pipestone  Indian  Community, 
felt  that  we  should  offer  our  views  in  the  spirit  of  understanding. 

"The  Pipestone  National  Monument  was  established  in  1937  by 
an  Act  of  Congress.  The  Yankton  Sioux  Tribe,  in  part,  had  relin- 
quished their  title  to  these  quarries  and  the  Pipestone  Reservation. 
In  1929,  an  appropriated  settlement  with  the  Yankton  Sioux  Tribe 
in  the  amount  of  $328,558.90,  which  compensated  the  tribe  for  the 
surrender  of  their  sole  claim  to  the  Pipestone  Reservation.  We  In- 


247 

dian  people  realize  that  these  issues  are  secondary  to  our  belief 
that  the  only  'true'  owner  of  the  quarries  is  the  Creator.  As  is  the 
case  with  every  other  tribe,  individual  members  of  the  Yankton 
Sioux  Tribe  have  the  right  to  use  the  quarries,  but  the  United 
States  Department  of  the  Interior  has  legal  title  to  them. 

"The  care  of  the  Pipestone  Quarries  was  placed  in  the  hands  of 
the  Department  of  the  Interior  in  order  to  preserve  and  protect  the 
Sioux  quartzite  and  the  pipestone  from  being  destroyed  during  the 
turn  of  the  last  century.  In  essence,  Indian  peoples'  interest  in  the 
Pipestone  Quarries  nearly  ceased  to  exist  in  the  early  1900s,  and 
non-Indian  commercial  ventures  threatened  their  very  existence.  In 
the  1920s,  local  people  started  a  drive  to  preserve  the  area  for  the 
Native  Americans  since  no  tribe  was  here  to  protect  the  quarries. 
Without  this  effort,  the  ecology  of  the  area  would  have  been 
changed  forever  and  the  quarries  undoubtedly  despoiled. 

"The  Pipestone  Indian  Shrine  Association  is  a  nonprofit  organiza- 
tion. Its  purpose  is  to  assist  the  Indian  pipe  makers.  All  revenues 
generated  by  these  efforts  are  reinvested  into  the  local  Indian  com- 
munity. All  employees  of  the  Indian  Pipestone  Shrine  Association 
are  Native  Americans.  In  fact,  some  of  the  individuals  who  are  gen- 
erally raising  concerns  were  themselves  past  employees  of  the 
Pipestone  Indian  Shrine  Association.  Additionally,  Pipestone  Na- 
tional Monument  and  Shrine  Association  provide  the  sole  means  of 
making  a  living  for  95  percent  of  the  Indian  adults  in  our  commu- 
nity. 

"Our  Indian  community  is  composed  of  tribal  members  from  all 
over  the  country.  We  have  not  been  fortunate  enough  to  enjoy  the 
support  of  a  tribal  government,  we  have  had  to  be  on  our  own. 
Many  of  us  have  lived  here  for  several  generations,  where  our  fa- 
thers' fathers  have  taught  us  the  significance  of  being  pipe  makers. 
We  have  had  conversations  with  medicine  people  over  the  past  50 
years,  and  they  always  expressed  joy  that  there  were  still  Native 
people  here  to  work  the  quarries  so  that  they  could  obtain 
pipestone  for  their  use.  Many  of  these  healers  are  happy  to  buy  the 
stone  or  finished  pipes  from  our  pipe  makers  as  they  realize  the 
great  amount  of  physical  effort  and  time  that  is  involved  in  quarry- 
ing pipestone.  When  we  have  asked  medicine  people  about  our 
craft,  we  were  told  that  a  pipe  becomes  a  sacred  object  only  when 
it  has  been  touched  by  the  spirits,  and  this  is  done  in  a  ceremonial 
manner. 

'This  brings  us  to  the  point  about  trading  in  Pipestone.  History 
notes  that  as  long  as  200  to  300  years  ago,  American  Indians  were 
distributing  Pipestone  pipes  in  a  flourishing  inter-tribal  trade  econ- 
omy. Since  all  our  ancestors  were  at  that  time  traditional  people, 
clearly  trade  in  Pipestone  must  have  been  an  approved  custom 
among  our  tribes.  As  to  the  increased  interest  of  non-Indians  in 
Pipestone,  all  we  pipe  makers  know  is  that  we  have  not  been  re- 
sponsible for  the  spread  of  traditional  Indian  spirituality  among 
non-Indians.  What  we  do  know  is  that  one  cannot  know  the  mo- 
tives of  another  person  unless  that  person  chooses  to  share  them 
with  you.  If  a  person  wishes  to  obtain  a  pipe  because  they  believe 
it  is  correct  for  them,  it  is  not  our  place  to  be  self-righteous  and 
judge  them.  If  a  pipe  is  not  used  for  the  reason  that  it  was  made 
and  intended  for,  then  the  Creator  will  judge  that  person.  It  is  not 


248 

for  us  to  do  so.  We  only  trust  to  the  beliefs  that  we  were  taught 
by  our  elders. 

"In  closing,  we  believe  that  support  for  this  recent  movement  will 
take  food  from  the  mouths  of  young  children  and  beloved  elders  in 
our  community.  Support  for  this  movement  will  impede  the  desire 
for  a  good  education,  constrict  the  ability  for  Indian  adults  to  be 
responsible  providers,  and  eventually  depress  Indian  pride  and  self- 
sufficiency.  Most  profoundly,  support  for  this  movement  goes 
against  the  primary  spiritual  taboo  for  Indians  who  wish  to  quarry 
here.  That  is,  it  is  tantamount  to  an  act  of  war  and  aggression 
against  peaceful  people  on  the  most  spiritual  land  in  Indian  coun- 
try. This  above  all  has  been  forbidden  by  the  Creator,  and  we  pipe 
makers  do  not  understand  this  behavior. 

"Thank  you  for  the  opportunity  to  voice  our  opinions. 

"In  peace,  the  Pipestone  Native  American  Community." 

I  also  would  like  to  enter  into  testimony  a  two-minute  videotape 
that  we  took  of  one  of  the  guys  quarrying. 

[Editor's  note. — The  videotape  may  be  found  in  the  hearing 
file.] 

Mr.  Richardson.  Without  objection. 

[Prepared  statement  of  Mr.  Johnston  follows:] 


249 

-  1  - 

STATEMENT  OF  BUD  JOHNSTON: 

We,  the  Pipestone  Native  American  community,  feel  compelled  to 
issue  a  statement  regarding  proposed  amendments  to  the  american 
Indian  Religious  Freedom  Act,  specifically,  Title  I.  The  Great 
Pipestone  Quarries  of  Minnesota  is  listed  as  one  of  forty-four 
sites  designated  to  be  protected  by  the  proposed  amendments. 
Some  individuals  have  initiated  petitions  and  resolutions  and  are 
encouraging  support  from  Indian  people  to  return  the  administration 
of  the  Pipestone  Quarries  to  the  Yankton  Sioux  Tribe,  It  is  a 
further  wish  that  the  National  Park  Service  and  the  Pipestone 
Indian  Shrine  Association  vacate  the  premises  of  the  Pipestone 
National  Monument,  These  individuals  contend  that  pipestone  is 
being  marketed  in  an  unethical  manner.  We,  pipe  makers  in  the 
Pipestone  Indian  community,  felt  that  we  should  offer  our  views 
in  the  spirit  of  understanding, 

The  Pipestone  National  Monument  was  established  in  1937  by  an  act 
of  Congress.  The  Yankton  Sioux  Tribe,  in  part,  had  relinquished 

THEIR  TITLE  TO  THESE  QUARRIES  AND  THE  PlPESTONE  RESERVATION .   In 
1929,  AN  APPROPRIATED  SETTLEMENT  WITH  THE  YANKTON  SlOUX  TRIBE  IN 
THE  AMOUNT  OF  $328,558.90,  WHICH  COMPENSATED  THE  TRIBE  FOR  THE 
SURRENDER  OF  THEIR  SOLE  CLAIM  TO  THE  PlPESTONE  RESERVATION.   We 

Indian  people  realize  that  these  issues  are  secondary  to  our  belief 
that  the  only  "true"  owner  of  these  quarries  is  the  creator.  as 
is  the  case  with  every  other  tribe,  individual  members  of  the 
Yankton  Sioux  have  the  right  to  use  the  quarries.  But,  the  United 
States  Department  of  the  Interior  has  legal  title  to  them. 


250 


The  care  of  the  Pipestone  Quarries  was  placed  in  the  hands  of 
the  Department  of  Interior  in  order  to  preserve  and  protect  the 
Sioux  quartzite  and  the  pipestone  from  being  destroyed  during 
the  turn  of  the  last  century,  In  essence,  Indian  peoples' 
interest  in  the  pipestone  quarries  nearly  ceased  to  exist  in 
early  1900  and  non-Indian  commercial  ventures  threatened  their 

VERY  EXISTENCE.   In  THE  1920'S,  LOCAL  PEOPLE  STARTED  A  DRIVE  TO 

preserve  the  area  for  the  native  american,  since  no  tribe  was 
here  to  protect  the  quarries.  without  this  effort,  the  ecology 
of  the  area  would  have  been  changed  forever,  and  the  quarries 
undoubtedly  despoiled. 

The  Pipestone  Indian  Shrine  Association  is  a  non-profit  organization. 
It's  purpose  is  to  assist  the  Indian  pipe  makers.  All  revenues 
generated  by  these  efforts  are  re-invested  into  the  local  Indian 
community.  All  employees  of  the  Pipestone  Indian  Shrine  Association 
are  Native  American.  In  fact,  some  of  the  individuals  who  are 
currently  raising  concerns,  were  themselves  past  employees  of  the 
Pipestone  Indian  Shrine  Association.  Additionally,  Pipestone  National 
Monument  and  Shrine  Association  provide  the  sole  means  of  making  a 
living  for  95  percent  of  the  indian  adults  in  our  community. 

Our  Indian  community  is  composed  of  tribal  people  from  all  over 

THE  COUNTRY.   We  HAVE  NOT  BEEN  FORTUNATE  ENOUGH  TO  ENJOY  THE  SUPPORT 
OF  A  TRIBAL  GOVERNMENT.   We  HAVE  HAD  TO  BE  ON  OUR  OWN.   MANY  OF  US 
HAVE  LIVED  HERE  FOR  SEVERAL  GENERATIONS  WHERE  OUR  FATHER'S  FATHERS 
HAVE  TAUGHT  US  THE  SIGNIFICANCE  OF  BEING  PIPE  MAKERS.   We  HAVE  HAD 


251 

3  - 


conversations  with  medicine  people  over  the  past  50  years,  and 
they  always  expressed  joy  that  there  were  still  native  people 
here  to  work  the  quarries,  so  that  they  could  obtain  pipestone 
for  their  uses.  flany  of  these  "healers"  are  happy  to  buy  the 
stone  or  finished  pipes  from  our  pipe  makers,  as  they  realize 
the  great  amount  of  physical  effort  and  time  that  is  involved 
in  quarrying  pipestone.  when  we  have  asked  medicine  people 
about  our  craft,  we  were  told  that  a  pipe  becomes  a  sacred  object 
only  when  it  has  been  "touched  by  the  spirits,  and  this  is  done 
in  a  ceremonial  manner". 

This  brings  us  to  the  point  about  trading  in  pipestone.  History 
notes  that  as  long  as  200  to  300  years  ago,  american  indians  were 
distributing  pipestone  pipes  in  a  flourishing  inter-tribal  trade 
economy.  Since  all  of  our  ancestors  were  at  that  time  "traditional 
people",  clearly,  trade  in  pipestone  must  have  been  an  approved 
custom  among  our  tribes.  as  to  the  increasing  interest  of  non- 
indians  in  pipestone,  all  we  pipe  makers  know  is  that  we  have  not 
been  responsible  for  the  spread  of  traditional  indian  spirituality 
among  non- Indians.  What  we  do  know  is  that  one  cannot  know  the 
motives  of  another  person  unless  that  person  chooses  to  share  them 
with  you.  if  a  person  wishes  to  obtain  a  pipe  because  they  believe 
it  correct  for  them,  it  is  not  our  place  to  be  self-righteous  and 

JUDGE  THEM.   If  A  PIPE  IS  NOT  USED  FOR  THE  REASONS  THAT  IT  WAS  MADE 
AND  INTENDED  FOR,  THEN  THE  CREATOR  WILL  JUDGE  THE  PERSON.   h  IS 
NOT  FOR  US  TO  DO  THIS.   We  CAN  ONLY  TRUST  TO  THE  BELIEFS  THAT  WE 
WERE  TAUGHT  BY  OUR  ELDERS. 


252 

4  - 


In  closing,  we  believe  that  support  for  this  recent  movement 
will  take  food  from  the  mouths  of  young  indian  children  and 
beloved  elders  in  our  community.  support  for  this  movement 
will  impede  the  desire  for  a  good  education,  constrict  the 
ability  for  indian  adults  to  be  responsible  providers,  and 
eventually  depress  indian  pride  and  self-sufficiency.  most 
profoundly,  support  for  this  movement  goes  against  the  primary 
spiritual  taboo  for  indians  who  wish  to  quarry  here.  that  is, 
it  is  tantamount  to  an  act  of  war  and  aggression  against  peaceful 
people  on  the  most  spiritual  land  in  indian  country.  this  above 
all  has  been  forbidden  by  the  creator  and  we  pipe  makers  do  not 
understand  this  behavior. 

Thank  you  for  the  opportunity  to  voice  our  opinions. 

In  Peace, 

The  Pipestone  Native  American  Community. 


253 


WHEREAS.  the  Pipestone  Dakota  Indian  Community  is  comprised  of 
Indian  people  enrolled  in  various  tribes  in  and  out  of  the  state  of 
Minnesota.  Their  sustenance  in  many  aspects  is  derived  from  the 
Great  Pipestone  Quarries  of  Minnesota;  and 

WHEREAS,  the  right  to  subsist  is  a  fundamental  human  right  that 
most  Americans  take  for  granted;  and 

WHEREAS,  the  Great  Pipestone  Quarries  of  Minnesota  have  been 
historically  utilized  by  all  tribal  nations;  and 

WHEREAS,  no  single  tribe  or  coalition  of  tribal  nations  may  assert 
entitlement  or  domain  over  the  Great  Pipestone  Quarries  of 
Minnesota;  and 

WHEREAS,  the  proposed  amendments  to  Public  Law  95-341,  known  as 
the  Indian  Freedom  of  Religion  Act  of  1978;  and 

WHEREAS,  such  proposed  amendments  may  restrict  the  historical 
access  of  the  Great  Pipestone  Quarries  by  all  tribes;  and 

WHEREAS,  such  restrictions  may  no  longer  accomodate  the  diversity 
of  indigenous  religious  practices  of  all  tribes  and  tribal  members 
seeking  access  to  the  Great  Pipestone  Quarries;  and 

WHEREAS,  given  that  historical  custom  affords  unrestricted  access 
to  the  Great  Pipestone  Quarries  by  all  tribes;  and 

WHEREAS,  a  prohibition  of  the  manufacturing  and  distribution  of 
pipes  and  pipestone  articles  will  have  a  devastating  negative 
impact  of  revenues  and  income  to  the  citizens  of  the  Pipestone 
township  and  county. 


THEREFORE,   BE  IT  RESOLVED,   that  the  Pipestone  Dakota   Indian 
Community  of  Pipestone,  Minnesota  requests  that  EXEMPTION  STATUS 
FROM  ANY  AND  ANY  FUTURE  AMENDMENTS  TO  PUBLIC  LAW  95-3  41  (KNOWN  AS 
THE  INDIAN  FREEDOM  OF  RELIGION  ACT  OF  1978),  BE  CONFERRED  UPON  THE 
GREAT  PIPESTONE  QUARRIES  OF  MINNESOTA. 


68-366  -  93  -  9 


254 


Dear  N. C.A.I. 

The  Pipestone  Dakotah  Indian  Community  disagrees  with  the  actions  of  the 
National  Congress  of  American  Indians,  on  the  passage  of  Resolution  #DC92-40. 
The  resolution  was  passed  at  the  49th  annual  convention,  October  11-16,  1992, 
Crystal  City,  Virginia. 

In  the  1851  Treaty  with  the  Sisseton/Wahpeton  Sioux  Tribe,  they  were 
recognized  as  owners  of  the  Pipestone  Quarry  and  ceded  all  their  lands  in 
southern  Minnesota,  which  encompassed  the  Pipestone  Quarry. 

In  the  Treaty  of  1858,  the  Yankton  Sioux  Tribe,  ceded  all  their  lands  in 
eastern  South  Dakota  in  exchange  for  400,000  acres,  in  southeast  South  Dakota 
and  unrestricted  use  of  the  Pipestone  Quarry  in  Minnesota. 

The  Yankton  Tribe  was  compensated  $328,558.90  by  a  land  sale  agreement, 
in  1928.  The  Superintendent  of  Yankton  Agency  made  per  capita  payments  to 
each  tribal  member  on  the  1920  rolls. 

The  National  Park  Service's  responsibility  is  to  preserve  and  protect  the 
lands  which  encompasses  the  Pipestone  Quarry  and  are  reserved  for  Native 
Americans  of  all  tribes.  The  Pipestone  Indian  Shrine  Association  is  a  non- 
profit cooperating  association  of  the  National  Park  Service,  which  was 
organized  to  perpetuate  the  dying  art  of  pipemaking.   Only  Native  Americans 
are  employed  by  the  Pipestone  Indian  Shrine  Association.  The  Red  Pipestone 
Quarries  are  void  of  descreation  due  to  the  fact  that  no  commercial  mining 
operations  exist.  The  quarrying  operations  are  a  labor  intensive,  time 
consuming  task  consisting  of  the  use  of  hand  tools  only.  Where  as  only  small 
amounts  are  removed. 

Historically,  the  Yankton  Sioux  Tribe  had  many  tribal  members  who 
participated  in  the  selling  of  pipes  and  other  trinkets  made  from  the 
pipestone  since  the  1700's  and  up  to  1912.  The  Yankton  Sioux  Tribes 
involvment  with  the  Quarries  has  been  minimal  since  1912.  There  has  been  no 
Yankton  Sioux  Tribal  member,  who  has  sought  to  excercise  their  right  to  use 
the  Quarries,  since  1972. 

Our  understanding  is  that  your  organization  is  chartered  to  help  all 
Native  Americans,  and  the  Pipestone  area  has  always  had  a  population  of  Native 
Americans  since  1891.   The  trading  and  bartering  of  pipestone  dates  back  to 
the  early  1600's. 

Certain  amendments,  such  as  Title  I  of  the  proposed  amendments  to  the 
American  Indian  Religious  Freedom  Act  would  prohibit  some  Native  Americans 
from  expressing  their  Religious  belief.  Many  Native  American  Tribes  practice 
their  religion  with  the  Red  Stone  Pipe. 

Not  all  Native  Americans  possess  the  resources  to  make  the  journey  to  the 
Pipestone  Quarries  and  excercise  their  right  to  procure  the  Red  Stone.  The 
Local  Native  American  people  have  made  it  possible  for  them  to  obtain  these 
pipes,  through  bartering,  so  they  can  continue  to  practice  their  religion.  We 
must  preserve  this  religious  freedom  for  future  generations. 

We  request  your  organization,  to  recind  Resolution  #DC-92-40.  Your 
decision  will  affect  the  livelihood  of  51  Native  American  craftpersons  and 
their  families  whose  numbers  exceed  over  100  people. 

Sincerely, 

Pipestone  Dakotah  Community 


255 


STATEMENT  IN  SUPPORT  OF  RESOLUTION  PROPOSED  BY 
THE  MINNESOTA  STATE  INDIAN  AFFAIRS  COUNSEL 

At  Regular  Meeting,  dated  September  18,  1991 

The  Resolution  asks:  Exemption  status  from  all  applications  of 
Title  I  and  the  proposed  amendments  to  the  American  Indian 
Religious  Freedom  Act  of  1978,  Public  Law  95-341,  be  conferred  upon 
the  Great  Pipestone  Quarry  of  Minnesota. 

PURPOSE  OF  RESOLUTION:  To  ensure  an  open  policy  for  all  Indian 
people . 

LEGISLATIVE  HISTORY:  The  following  is  a  brief  summary  of  the 
proposed  federal  legislation  amending  the  American  Indian  Religious 
Freedom  Act.  Accompanying  this  summary  is  an  issue  and  positional 
statement  by  representatives  of  the  Pipestone  Dakotah  Community. 

Over  the  past  several  years,  a  group  called  the  Religious 
Freedom  Coalition  has  drafted,  submitted  to  Congress  and  is 
currently  lobbying  for  the  passage  of  their  proposed  amendments  to 
the  American  Indian  Religious  Freedom  Act  of  1978  (Public  Law  95- 
341).  This  coalition  is  comprised  of  elements  of  the  National 
Congress  of  American  Indians,  National  Indian  Education 
Association,  Native  American  Church,  Native  American  Rights  Fund 
and  the  interests  of  a  private  group  known  as  the  Association  of 
American  Indian  Affairs.  Only  one  of  the  three  sections  of  TITLE 
I  "Protection  of  Sacred  Sites"  is  addressed  in  this  summary;  chat 
being: 

The  preservation  of  "Native  American  Religious  Sites". 
Outlined  in  this  section  \re  the  processes  by  which  "...tribes, 
bands,  nations,  or  other  organized  groups  or  communities  of 
Indians..."  may  petition  and  potentially  obtain  from  federal 
agencies  the  jurisdiction  over  lands  where  it  has  been  evaluated 
that  the  "..affected  site  should  be  transferred  into  the  trust  of 
a  tribe...".  This  section  details  claim  processes,  legal  cause  of 
action  and  transfer  processes. 

HISTORY  STATEMENT:  The  Pipestone  Dakotah  Community  was 
established  in  1930  and  for  generations,  our  Indian  craftspeople 
and  artisans  have  quarried  and  fashioned  pipestone  articles.  As 
such,  pipe  crafting  is  the  primary  economic  and  cultural  vehicle 
for  the  approximate  50  Indian  families  who  live  in  the  vicinity  of 
the  Pipestone  Quarries.  Although  many  Indians  living  in  Pipestone 
are  enrolled  in  non-Minnesota  reservations,  several  Minnesota 
tribal  enrolles  also  utilize  the  quarries. 

ISSUE  STATEMENT:  Recently,  the  Yankton  Sioux  Tribal  Council  of 
South  Dakota  has  passed  resolutions  to  use  the  proposed  amendments 
to  the  American  Indian  Religious  Freedom  Act  to  suppress  or  deny 
open  access  to  the  Pipestone  Quarries.   Their  criterion  for  which 

(1) 


256 


individuals  would  then  be  permitted  to  quarry  pipestone  is 
ambiguous  and  unclear  at  best.  The  Yankton  Sioux  Tribe  claim 
special  privilege  by  their  own  oral  mythology,  citing  treaty  right 
obligations  and  finally,  the  justification  of  God's  will.  The 
Yankton  Sioux  have  also  expressed  interest  in  preventing  the 
Pipestone  Dakotah  Community  from  continuing  its  activities.  These 
arguments  suggest  the  following  inquiries  and  responses  by  the 
Pipestone  Dakotah  Community. 

Issue  1)  Whether  it  is  not  contrary  to  tradition  to  sell 
pipestone,  yet  to  permit  the  trading  for  the  pipestone? 

Response:  The  distinction  between  trading  and  selling  is 
questionable.  Historically,  evidence  suggests  that  tribes  and 
individual  members  have  exchanged  pipestone  for  the  "currency  of 
the  times",  i.e.,  horses,  flint,  corn,  tobacco,  money,  etc.  for 
hundreds  of  years.  This  has  been  done  with  full  knowledge  of  the 
tribal  elders,  leaders  and  medicine  people  and  has  been  sanctioned 
as  appropriate. 

Issue  2)  Whether  the  Yankton  tribe  have  exclusive  possession  of 
the  quarries,  whether  they  were  the  last  tribe  to  occupy  this 
region  and  whether  negotiated  treaty  terms  provide  them  with  access 
to  the  quarries? 

Response:  Although  several  different  tribes  have  occupied  the 
hunting  territories  in  the  vicinity  of  the  quarries,  the  Great 
Pipestone  Quarry  has  never  been  the  exclusive  property  of  any  one 
tribe  or  group.  It  is  common  belief  of  all  tribal  people  that  the 
Pipestone  Quarries  were  given  to  all  Indian  nations  by  the  Creator. 
Traditional  spiritual  philosophy  would  suggest  that  the  Creator 
owns  the  pipestone.  In  response  to  treaty  claims,  the  National 
Park  Service  does  not  deny  any  Indian  the  privilege  of  quarrying 
pipestone.  Members  of  the  Yankton  Sioux  tribe  share  in  this 
privilege,  although  none  has  exercised  their  treaty  rights  for  over 
twenty-five  years. 

Issue  3)  Whether  the  distribution  of  pipestone  items  and  in 
particular  pipestone  pipes  to  "non-believers"  is  a  form  of 
religious  sacrilege? 

Response:  The  traditional  pipemakers  of  Pipestone  are  not  in  any 
way  responsible  for  the  wide  dissemination  of  traditional  Indian 
ideology,  ceremony,  ritual  or  practice  among  non-Indian  peoples. 
The  pipemakers  simply  respond  to  a  growing  need  for  these  items. 
The  pipemakers  have  discovered  that  they  are  unable  to  detect  the 
non-believers  among  all  of  those  who  purchase  pipestone  pipes. 
Since  the  distinction  between  true  believers  and  non-believers  is 
difficult,  the  pipemakers  have  determined  that  perhaps  it  is  better 
to  leave  this  determination  to  the  Creator. 

Issue  4)  Whether  the  question  of  the  character  of  the  individuals 
who  currently  quarry  pipestone  is  a  consideration? 

(2) 


257 


Response:  Many  of  the  contemporary  traditional  pipemakers  are 
descendants  of  a  long  family  history  of  pipemaking .  In  Historic 
times,  these  artisans  were  considered  to  be  an  asset  to  the  people. 
In  recent  years,  bona  fide  medicine  people  have  lived  in  Pipestone 
and  have  conferred  with  the  local  Indian  craftspeople.  They  have 
never  suggested  that  there  is  the  least  impropriety  in  the 
quarrying  and  fashioning  of  pipestone  items.  Frequently, 
traditional  Indian  practitioners  and  healers  are  the  recipients  of 
these  finished  pipes.  The  pipemakers  believe  that  each  individual 
must  first  reconcile  his  action  with  the  Creator.  Having  done 
this,-  he  may  honor  his  contributions  to  his  people.  The 
traditional  pipemakers  humbly  seek  to  do  this  according  to  their 
own  visions  . 

Issue  5)  Whether  mining  (quarrying)  of  the  pipestone  may 
unnecessarily  exhaust  a  limited  resource,  i.e.,  pipestone? 

Response:  Geological  survey  and  core  sampling  obtained  by  the 
National  Park  Service  has  confirmed  that,  contrary  to  popular 
belief,  there  exists  a  "double"  layer  of  deposits'  of  pipestone  at 
the  Great  Pipestone  Quarries  of  Minnesota.  It  must  also  be 
understood  that  strict  restrictions  apply  to  the  quarrying  process. 
All  quarrying  must  be  done  by  hand  tools.  No  power  tools  or  any 
kind  of  contemporary  machinery  is  permitted  in  removing  pipestone 
deposits.  These  protocols  are  explicitly  designed  to  minimize  the 
ecological  disturbances  to  the  site,  to  protect  the  pipestone 
deposits  and  to  preserve  the  time  honored  integrity  of  quarrying. 

ADDITIONAL  CONSIDERATIONS:  One  must  consider  the  political  and 
social  impact  of  enacting  legislation  with  the  federal  framework  as 
a  means  of  preserving  indigenous  spiritual  practice.  The  Pipestone 
Dakotah  Community  has  no  interest  in  obstruction  the  utilization  of 
lands  by  specific  tribes  within  their  own  geographical  context. 
Indeed,  we  support  these  efforts  as  a  national  agenda.  However, 
the  Great  Pipestone  Quarries  of  Minnesota  is  in  a  classification  in 
and  of  itself.  It  belongs  to  all  the  people  and  no  tribe  may 
mistakenly  claim  exclusive  control. 

It  occurs  to  us  that  our  strength  as  tribal  people  is 
supported  by  our  diversity  as  nations.  We  do  not  share  mother 
tongues.  Our  conventions  and  social  etiquette  are  dissimilar.  Our 
spiritual  practice  is  as  diverse  as  our  dreams.  We  question  the 
wisdom  of  shaping  a  pan-indian,  Indian  religious  framework.  Who 
can  possibly  construct  legislation  that  accommodates  our  religious 
diversity?  An  additional  consideration  is  legal  in  nature.  We  can 
envision  a  "worst  case  scenario"  where  an  individual  may  contest 
his/her  right  to  practice  their  religion.  Class  action  suits  could 
place  that  which  we  consider  our  heritage  into  the  political  arena 
of  the  United  States  judicial  system.  To  our  thinking  this  should 
be  avoided.  Precedent  has  been  established  by  a  higher  law. 
Tribal  custom  has  already  shaped  appropriate  processes  for  conflict 
resolution  among  our  nations. 

(3) 


258 


CLOSING  STATEMENT:  Traditional  pipemakers  who  live  near  the 
quarries,  have  everyday  been  aware  of  two  primary  laws  govern^ no 
the  use  of  pipestone.  First,  that  these  quarries  are  to  benefit 
all  mankind  and  as  such  are  open  to  all  Indian  nations.  Secondly, 
under  no  circumstances  is  conflict  to  be  displayed  or  facilitated 
at  the  quarries.  The  Pipestone  Dakotah  Community  of  Pipestone, 
Minnesota  wishes  to  honor  these  ancient  laws  of  our  people.  We 
believe  that  this  may  best  be  accomplished  by  removing  this  sacred 
site  from  any  controversy,  thus  preserving  its  decorum. 

THEREFORE,  we  are  requesting  an  "Exemption  for  the  Great 
Pipestone  Quarries  of  Minnesota  from  all  and  any  future  amendments 
to  the  American  Indian  Religious  Freedom  Act  of  1978,  P.L.  95-341". 

Contact:   Chuck  Derby 

Little  Feather  Indian  Center 
925  Second  Street  Southwest 
Pipestone,  MN  56164 

Telephone:      507/825-5464  (work) 

507/825-2623  (residence) 
507/825-3317  (fax) 

March  4,  1993 


(4) 


259 


Listing  of  quarriers  from  different  Tribal  groups  from  1971  thru 


1990 


Sisseton  Wahpeton 

Harrison  Crow 
Lloyd  Crow 
Quentin  Crow 
Jack  Crow 
Ethel  Derby 
Chuck  Derby 
Jeff  Derby 
Marge  Parsons 
Betty  Tellinghuisen 
Alice  Krickson 
Carol  Derby 
Maddie  Redwing 
Aileen  Bird 
Colleen  Bird 
Adrienne  Bird 
Shirley  Erks 
Faye  Brune 
Randy  Stevens 
Dale  Stevens 
Mike  Stevens 
Steven  Brady 
Tim  Brady 
Bill  Bryan 
Clara  Bryan  (Winona) 
Mark  Pederson 
Kevin  Pederson 
Travis  Erickson 
Todd  Tellinghuisen 
Joel  He in 
Pete  Musil 
Tim  Blue 
Todd  Parsian 
Duane  Wika 
Herbert  IronHeart 
George  Renville 
Darlene  Tester 
Carol,  Iron  Moccasin 
Greg  Maestas 
Willard  Greeley 
Joseph  Genia 
Doyle/John  Robertson 

Ogilala  Sioux 

Roy  Weston 
Marvin  Red  Elk 
Douglas  Fasthorse 
Duane  Blindman 
Mabel  Shangreau 


Santee  Sioux 

George  Allen  Sr 

Ted  Taylor 

Myron  Taylor 

Sam  Gurnoe 

Donald  Gurnoe 

Donna  Moose (Rederth) 

Ray  Redwing 

Gary  Kills  A  Hundred 

Fred  Love joy 

Linda  Rodefer 

Lauren  Herrick  Jr 

Colin  Cavender 

Brenda  Crow 

Lee  Taylor 

Rocky  Shopbell 

Roger  Trudell 

Mato  Wilch 


3  Yankton  Sioux 

Joseph  Dudley 
Joe,  Dan,  and  Elijah 
Packard 

Alphonse  Gerken 
Gary  Gullikson 
Zeph  Zephier 
Edward  Zephier 
Edward  Redlightning 
Loren  Zephier 

£  Chevenne  River  Sioux 

George  Kane 
Robert  Hale 
Jim  Marshall 
Mona  Grey  Bear 
Richard  Stands 
Jim  Garrett 


Lower  Sioux 
David  Larsen 
Dennis  Blue 


H 


Mdewakanton 


Crooks  Family-Norman 
Robert,  Clarence, 

Rosebud  Sioux  Amos  Owen 

Moses  Big  Crow         Amos  Crooks 

Alvin  looking  Horse  / 1 7 1 

Silas  Eagfe  Elk  Ut>><H  A.o»<i'*f 

Lessert  Moore 

Phyllis  Stone 

Paul  Szabo 

Eugene  Leroy  Sr 

Tim  Whitebird 


Teton  Sioux 
Wallace  Black  Elk 


Sinn*  THhal  ID  ? 

Martin  High  Bear 

Mona  Dupris 

Rene  Whiting 

Joseph  Flying  By 

C  W  Hart 

Clinton  Turgeon 

Walter  Lakota 

Jerome  DeWolfe  ' 

Ralph  Whitehorse 

Daryl  No  Heart 

Virgil  Charging  Hawk 

Cody  Enoch  and  Michael  Erickson 


5  Winnebago  Sioux 

James  Funmaker 
Willard  LaMere 

\    Crowcreek  Sioux 
Mr  &  Mrs  George  Tuttle 

3  Standing  Rock  Sioux 


Ken  One  Feather 
James  One  Feather 
Nick  Halsey 


Devils  Lake  Sioux 
Sylvester  DeMarce 

Santee/Rosebud  Sioux 
Harvey  Ross 


260 


Listing  of  quarriers  from  different  Tribal  groups  from  1971  thru  1990 


O.i  ibway  ' 

George  Bryan 
Zona  Busae 
Bill  Hallett 
Edward  Thomas 
Betty  Rand 
Keith  Lussier 
Mushkooub 
Jeff  Savage 
Elmer  Sunn 
Leonard  Vetternick 
Larry  Devlin 
Gena  Bel garde 
Robert  Thompson 
Littlecreek  Family- 
Thomas,  Russell,  Hollis 
Marvin  French 
Louis  Boyd 
Robert  Rosebear 
Sam  Morris 
Bruce  Savage 
Jean  Aquash 
Brian  Wichern 
Jim  Weaver 
Gordon  Le Garde 
Joe  King  Bird 
Francis  Johnson 
Myron  Rosebear 
David  Hoagland 
Larry  Goose 
Norman  Blakely 
Jack  Chambers 
Charles  Robertson 
Terri  Jackson 
Donald  Wright 

i  Creek 

Freeman  Mitchell 

t  Ottawa 
William  King 


I  Northern  Cheyenne 

Michael  Joseph 

/  Nez  Perce 
David  Penny 

,  Arapaho  Wind  River 
Willis  Whiteman 

I  Pottawatomie 
Paul  Nadjewan 

;  Papaeo 

Manny  Two  Feathers 

i  Menominee 
Max  Dixon 

i    Navaio 
Paul  Begaye 

/  Mandan-Hidatsa 
Gordon  Bird 

.  Iroquois/Seneca 
John  Crazy  Bear 

i  Osaee 

Tim  Tall  Chief 

I  Paiute 

Richard  Burchett 

,3  Arikara 

Daryl/Leo  Lockwood 

1  Chevenne 
Robert  Garrison 

1  Peepeekeesis 
Dwight  Pinay 


Cheyenne  Arapaho 


Marvin  Tasso     )  ->     ,  y-s* 
Mitch  Walking  Elk7  r 


$■ 


,  Athabaskan 
William  Dominic 


i  Pottawatomie/Ottawa 
Lee  Sprague 

,  Blackfeet 
Charles  Hirst 
Ted  Guardipee 
Merle  Yellow  Kidney 

I  Comanche 
Ed  Yates 

I  Dine-Nava.io 
Tom  Goldtooth 

I  Ponca 
John  Williams 

,  Eskimo. 
Frank  Alby 

l  Gros-Ventre 
Bernard  Cliff 

^  Oneida 

Maisie  Schenandoah 
Don  Deny   > 

!  Pennobscot 
Fred  Nicola 

>  Conkow  Maidu 
Robert  Mullins 

/  Ye llowknife /Canada 
Tim  Sikyea 


261 


262 

Mr.  Richardson.  Thank  you,  Mr.  Johnston. 

Let  me  ask  Mr.  Carnes:  As  I  understand  from  your  testimony,  is 
it  your  contention  that  Native  American  religious  practitioners  are 
treated  differently  by  prison  officials  than  practitioners  of  non-Na- 
tive religions? 

Mr.  Carnes.  They  most  definitely  are  in  many  places.  It  is  based 
a  lot  on  the  ignorance  of  the  correction  officers,  security  line  offi- 
cers, who  have  no  understanding  or  ideas  about  our  religious  ob- 
jects or  things,  because  they  may  come  into  our  cell  during  a 
shakedown  or  in  the  prison  yard  and  come  and  handle  our  feather 
and  play  with  these  things — you  know,  make  a  lot  of  jokes  or  re- 
marks they  feel  like.  It  is  not  hurting  nobody.  Well,  you  know,  it 
creates  a  sense  of  anger  or  tension  within  the  prison  system,  and 
there  is  already  too  much  there  anyway. 

Mr.  Richardson.  Is  it  your  view,  Mr.  Carnes,  that  giving  access 
to  Native  American  prisoners  to  their  religious  practices  would 
make  them  better,  law-abiding  citizens  when  they  are  released? 

Mr.  Carnes.  Yes,  only  for  those  who  have  that  sincere  interest 
to  participate.  There  may  be  a  few  who  attend  out  of  curiosity  be- 
cause they  never  had  that  opportunity.  They  may  also  be  deeply  af- 
fected and  choose  to  pursue  that  way  of  life.  Even  these  people  who 
have  never  had  this  spirituality  before  they  went  to  prison,  they 
pick  it  up  there,  and  they  are  going  to  need  help  when  they  get  out. 
They  need  some  post-assistance  or  a  support  group  when  they  get 
out,  which  is  one  of  the  things  I  have  been  hoping  to  develop,  this 
spiritual  camp  for  people  who  are  paroled  or  discharged  from  pris- 
on, because  in  a  sense  they  are  just  like  babies  learning  how  to 
walk  again,  their  spirituality.  They  need  to  be  surrounded  by  these 
people,  pray  at  the  pipe,  the  sun  dance,  go  to  the  stomp  dance  cere- 
monies, participate  in  all  these  other  traditional  ways. 

Mr.  Richardson.  Mr.  Carnes,  what  are  you  doing  now  profes- 
sion-wise? Are  you  counseling? 

Mr.  Carnes.  Yes,  I  am  trying  to  get  back  into  the  prisons  in 
Oklahoma.  I  have  had  problems  with  some  of  the  institutions  be- 
cause I  was  not  very  popular  once  we  started  a  lawsuit,  because 
I  brought  national  attention  to  the  Oklahoma  Department  of  Cor- 
rections. At  the  same  time,  the  person  who  was  the  warden  that 
started  a  policy  had  been  confirmed  as  the  director  of  the  Depart- 
ment of  Corrections  the  same  week  that  I  received  the  1987  Okla- 
homa Human  Rights  Award  for  my  efforts  in  trying  to  create  an 
understanding  about  the  religious  rights  of  Native  prisoners  in 
Oklahoma,  and,  to  my  knowledge,  I  have  been  the  only  person  in 
this  country  who  has  ever  received  such  a  distinguished  award 
while  I  was  incarcerated. 

Mr.  Richardson.  Well,  make  sure  you  stay  in  touch  with  us,  be- 
cause we  want  to  work  with  you  as  we  move  this  legislation. 

Mr.  Johnston,  you  related  concerns  about  how  one  defines  a  tra- 
ditional leader.  Who  do  you  think  should  make  that  determination? 

Mr.  Johnston.  I  think  that  is  best  left  to  the  people,  but  that 
doesn't  fit  the  criteria  for  what  this  wants  to  do. 

So  many  people  say  that  they  are  a  traditional  person.  Whatever 
that  means  to  them  is  what  it  means.  Every  tribe  has  their  own 
idea  of  what  a  traditional  person  is,  and  every  individual  has  their 
own  idea  of  what  a  traditional  person  is.  The  same  thing  with  the 


263 

spiritual  person.  The  tribes  recognize  one  or  two,  usually  represent- 
ing the  tribe,  but  they  don't  even  attempt  to  try  to  define  whether 
each  enrolled  member  is  a  traditional  person  or  a  spiritual  person. 

Mr.  Richardson.  I  believe  the  provision  in  the  Senate  makes  a 
definition  of  a  traditional  leader. 

Mr.  Johnston.  That  is  true;  they  try  to. 

Mr.  Richardson.  Right.  So  your  view  is  that  we  should  basically 
leave  that  up  to  the  tribes? 

Mr.  Johnston.  I  don't  know  how  the  other  sacred  sites  that  are 
off  the  reservation  are  going  to  be  administered,  but  in  relation  to 
what  I'm  saying  in  regard  to  Pipestone,  if  you  put  that  in  control 
of  any  one  tribe — and  I  wouldn't  really  care  which  tribe  it  was — 
then  they  would  be  in  a  position  to  define  who  was  traditional  and 
who  should  quarry  stone  in  what  they  decide  was  the  proper  man- 
ner, and  if  they  decide  an  individual  who  is  enrolled  somewhere 
but  doesn't  believe  in  the  Lakota  traditions,  he  may  not  be  allowed 
to  go  in  there.  I  don't  know  how  anybody  can  define  spirituality  or 
traditionalism  for  any  individual  or  group.  That  is  really  difficult. 

We  have  got  a  lot  of  our  spiritual  people  today,  like  Mr.  Carnes 
was  saying,  who  have  been  in  prison.  We  grew  up  in  a  time  when 
being  Indian  was  not  the  thing  to  be.  We  couldn't  even  find  people 
at  home  that  would  talk  about  spiritualism  or  traditionalism.  We 
had  to  go  back  to  our  grandfathers  and  hope  that  they  were  still 
alive  and  try  to  talk  to  them,  and  these  same  people  are  now  listed 
as  spiritual  advisors  for  our  tribes. 

Mr.  Richardson.  You  have  raised  an  issue  that  we  are  going  to 
have  to  grapple  with  very  seriously.  I  think  you  make  a  very  good 
point. 

Let  me  again  thank  panel  number  four.  I,  regrettably,  have  to 
run  off.  I  think  we  have  had  a  very  good  hearing — four  panels,  very 
excellent  testimony,  especially  those  that  came  from  long  distances. 
These  hearings  are  very  useful  as  we  prepare  our  legislation.  As 
everybody  knows,  we  want  to  make  sure  our  legislation  has  a  good 
bipartisan  focus.  We  want  to  work  with  the  administration.  We 
want  to  work  with  the  tribes  especially  because  we  are  very  serious 
about  making  this  very  important  piece  of  legislation  law. 

So,  with  that,  the  hearing  is  adjourned,  and  we  want  to  thank 
all  the  witnesses  here  today. 

[Whereupon,  at  11:26  a.m.,  the  subcommittee  was  adjourned.] 


APPENDIX 


March  16,  1993 


Additional  Material  Submitted  for  the  Hearing  Record 
SUPPLEMENTAL   TESTIMONY   OF 

DOUGLAS    J.    LONG,    PRESIDENT 
NATIVE   AMERICAN   CHURCH   OP   NORTH   AMERICA 

AND 

ROBERT  BILLY  WHITEHORSE,  PRESIDENT 
NATIVE  AMERICAN  CHURCH  OF  NAVAJOLAND,  INC 

SUBMITTED  TO 

CONGRESSMAN  RICHARDSON  AND  MEMBERS  OF 

NATIVE  AMERICAN  AFFAIRS  SUBCOMMITTEE 

FOLLOWING  AN 

OVERSITE  HEARING  ON  THE  AMERICAN  INDIAN 

RELIGIOUS  FREEDOM  ACT 

ON 

MARCH  16,  1993  IN  WASHINGTON,  D.C. 

REGARDING 
THE  TRADITIONAL  USE  OF  PEYOTE 

SUBMITTED  ON 
March  26.  1993 

(265) 


266 


Dear  Congressman  Richardson  and  Members  of  the  Subcommittee: 

First  of  all  we  would  like  to  thank  you  and  the  Committee 
staff  for  conducting  a  fine  Hearing  on  the  critical  issues  of 
Native  American  religious  liberty.  For  many  of  us,  these  are  the 
most  significant  issues  affecting  our  cultural  survival. 

During  the  March  16th  Oversite  Hearing,  you  and  your 
colleagues  posed  several  very  good  questions  which  we  would  like  to 
respond  to  more  elaborately  than  time  permitted  during  the  Hearing 
itself.  We  discussed  the  following  paraphrased  questions  after  the 
Hearing  and  the  accompanying  responses  reflect  our  views. 

QUESTION  #1.  Do  all  members  of  the  Native  American  Church 
take  peyote  during  the  course  of  a  typical  NAC  prayer  service? 

Generally  speaking,  yes  they  do.  Peyote  is  taken  either  as  a 
tea  or  eaten  when  passed  clockwise  around  the  congregation  during 
the  ceremony.  There  is  no  requirement  that  the  congregant  take 
peyote,  and  typically  children  accompanying  the  parents  will  simply 
sit  quietly  beside  the  parents,  listen  to  the  prayers  and  songs, 
and  eventually  lay  down  to  sleep  beside  their  parents. 

QUESTION  #2.  Does  the  proposed  legislation  affect  other 
religions? 

The  proposed  bill,  circulated  by  the  AIRFA  Coalition  and 
Senator  Inouye,  is  Indian-specific  legislation.  It  is  an  exercise 
of  the  federal  trust  responsibility  to  protect  and  preserve  Indian 
cultures  (as  described  in  the  existing  AIRFA) .  It  applies  only  to 
Indian  or  Native  American  people  as  defined  in  the  draft  bill,  and 
only  to  traditional  Native  American  religions  as  defined  in  the 
draft  bill.   It  does  not  say  specifically  "Native  American  Church" 


267 


because  some  groups  that  meet  the  above-referenced  definitions  do 
not  use  that  name.  For  instance,  Crow  Indian  Peyote  Ceremonies  is 
a  Native  American  Church  organization  acknowledged  by  other  NAC 
organizations  and  duly  registered  in  Texas  for  lawful  procurement 
of  our  sacrament,  but  preferring  its  own  name.  Non-Indians  are  not 
intended  to  be  covered  by  this  legislation. 

ODESTION  #3.  How  do  you  ensure  that  peyote  is  used  only  for 
religious  purposes  within  the  NAC? 

First  of  all,  among  our  members  peyote  is  a  Holy  Sacrament,  it 
is  the  flesh  of  God,  so  it  would  be  a  sacrilege  to  use  peyote  in 
any  way  inconsistent  with  its  spiritual  significance. 

Secondly,  the  NAC,  the  D.E.A.  and  the  Texas  Department  of 
Public  Safety  share  a  mutual  interest  in  protecting  the  peyote  to 
ensure  that  it  doesn't  get  abused  or  fall  into  the  wrong  hands. 
These  organizations  all  have  regulatory  apparatus  in  place  that 
creates  these  safeguards.  For  instance,  NAC  chapters  typically 
have  an  appointed  "Custodian"  who  is  the  person  responsible  for 
securing  peyote  under  the  Texas  regulatory  scheme.  The  Custodian 
then  has  the  duty  to  keep  the  sacrament  for  the  chapter  and  make  it 
available  for  the  bona  fide  prayer  services  conducted  within  that 
chapter. 

This  self-regulatory  system  works  well  as  is  evidenced  by  the 
uncontroverted  record  established  in  the  Smith  case  that  between 
the  years  1980  and  1987,  the  D.E.A.  confiscated  and  analyzed  19.4 
pounds  of  peyote  nationwide...  about  the  equivalent  of  one  grocery 
bag  for  the  entire  country.   (In  contrast,  during  that  same  period, 


268 


D.E.A.  confiscated  and  analyzed  over  15  million  pounds  of 
marijuana.)  These  figures  help  explain  why  the  D.E.A.  in  their 
testimony  at  the  Hearing  stated  that  the  NAC's  sacramental  use  of 
peyote  is  in  no  way  part  of  this  country's  drug  problem. 

OOESTION  #4.  If  the  current  C.F.R.  exemption  (§1307.31)  were 
simply  enacted  as  a  statute,  would  that  prohibit  state 
prosecutions? 

This  question  was  posed  to  Hearing  witness  Craig  Dorsay  who 
will  be  responding  more  elaborately  in  his  own  Supplemental  letter. 
We  would  essentially  like  to  codify  the  current  C.F.R.  exemption. 
However,  certain  modifications  may  need  to  be  made  to  that  C.F.R. 
language  in  order  to  clarify  that  this  is  intended  to  be  a  uniform 
national  law,  constitutionally  sound,  within  the  ambit  of  the 
federal  Trust  Doctrine,  superseding  inconsistent  state  laws  and 
prohibiting  discrimination  based  on  NAC  membership  or  participation 
in  NAC  activities.  We  believe  that  the  language  in  Senator 
Inouye's  draft  bill  would  accomplish  these  purposes. 

The  discrimination  problems  plaguing  the  NAC  arise  in  various 
contexts;  for  instance  in  the  area  of  employment  discrimination  see 
Smith,  and  in  the  area  of  military  service  exclusion  and  court 
martials  see  the  testimony  of  Ed  Red  Eagle,  Jr. ,  Vice-President  of 
the  NAC  of  Oklahoma  submitted  for  the  written  record  of  this 
Hearing,  and  the  testimony  of  Marine  Corps.  Sgt.  Shawn  Arnold 
before  the  Senate  Select  Committee  on  Indian  Affairs,  Hearing  in 
Los  Angeles,  November  12,  1992,  copy  attached. 


269 


QUESTION  #5.  Would  restoring  the  "compelling  state  interest" 
test  abandoned  in  Smith  (ala  the  current  pending  "Religious  Freedom 
Restoration  Act")  solve  the  NAC's  problem? 

No.  For  a  comprehensive  analysis  of  this  question,  please  see 
the  attached  "Religious  Freedom  Restoration  Act"  testimony 
submitted  to  the  House  Subcommittee  on  Civil  and  Constitutional 
Rights,  May  14,  1992. 

Briefly  stated,  the  answer  can  be  found  in  Justice  O'Connor's 
concurring  opinion  in  Smith,  wherein  she  describes  how  she  would 
have  preferred  to  keep  the  "compelling  state  interest"  test  and 
simply  rule  that  the  NAC's  use  of  peyote  flunks  that  test.  Her 
view  points  clearly  to  the  need  for  specific  statutory  protection. 

QUESTION  #6.  If  the  applicability  of  relevant  AIRFA 
amendments  was  limited  to  those  of  1/4  degree  Indian  blood,  would 
that  include  non-f ederally  recognized  tribes? 

That  would  depend  on  the  definition  of  "Indian"  for  purposes 
of  establishing  what  constitutes  "Indian  blood." 

On  the  broader  question  of  defining  "Indian"  by  blood  quantum 

rather  than  tribal  membership,  we  would  offer  the  following 

considerations : 

1.  Nearly  all  contemporary  federal  Indian  law  uses  a  * tribal 
membership'  rather  than  x blood  quantum'  definition  for 
Indian.   There  are  at  least  two  reasons  for  this: 

A.  In  order  to  avoid  Equal  Protection  problems  (and  in 
this  case  Establishment  Clause  problems  as  well) ,  a 
tribal  membership  definition  is  used  to  squarely 
ground  such  legislation  in  the  Trust  Doctrine,  the 
unique  legal  and  political  relationship  between  the 
United  States  and  Tribes  and  their  members.  This 
politically  based  classification  is  permissible 
constitutionally,   whereas   a   ^blood   quantum' 


68-366  -  93  -  10 


270 


definition  alone,  without  linking  it  to  tribal 
membership,  may  be  susceptible  to  challenge  as 
being  a  racial  classification.  Justice  Scalia  in 
writing  for  the  majority  in  Smith  said: 

"But  to  say  that  a  nondiscriminatory 
religious-practice  exemption  is  permitted,  or 
even  that  it  is  desirable,  is  not  to  say  that 
it  is  constitutionally  required. . .  (emphasis 
added)  (494  U.S.  at  890  (1990))." 

B.  The  right  to  decide  who  is  an  Indian  belongs  to  the 
tribes  as  a  matter  of  inherent  sovereignty  and 
self-determination.1  Once  the  tribes  define  their 
membership  criteria  (which  varies  from  tribe  to 
tribe)  then  it  is  the  responsibility  of  the  United 
States  to  fulfil  its  Trust  responsibility  to  those 
politically  identified  members. 

Some  tribes  with  active  NAC  chapters  have  their  tribal 
membership  criteria  set  at  a  blood  quantum  level  that  is 
lower  than  25%.  A  '25%  blood  quantum'  definition  of 
Indian  would  paint  those  people  out  of  the  ambit  of  this 
law.  This  raises  a  legal  question  of  those  excluded 
people,  although  legally  and  politically  Indian  by  virtue 
of  their  membership  in  a  tribe,  not  being  equally 
protected  by  the  Trust  Doctrine.  This  question  was  also 
raised  in  a  footnote  in  the  Pevote  Way  case.2 

NAC  organizations  are  and  should  remain  free  to  set  their 
own  membership  criteria  (such  as  additionally  requiring 
2  5%  Indian  blood  if  they  so  choose)  provided  that  the 


1  "The  courts  have  consistently  recognized  that  one  of  an 
Indian  tribe's  most  basic  powers  is  the  authority  to  determine 
questions  of  its  own  membership.  A  tribe  has  power  to  grant,  deny, 
revoke,  and  qualify  membership.  Membership  requirements  may  be 
established  by  usage,  by  written  law,  by  treaty  with  the  United 
States,  or  even  by  intertribal  agreement."  The  power  of  an  Indian 
tribe  to  determine  questions  of  its  own  membership  derives  from  the 
character  of  an  Indian  tribe  as  a  distinct  political  entity." 
(Footnotes  Omitted) .  Cohen,  Handbook  of  Federal  Indian  Law,  1982 
ed . ,  p .  2  0. 

2  "The  federal  defendant  explains  that  Section  1307.31  exempts 
only  NAC  members  because  that  is  the  only  bona  fide  tribal  Native 
American  peyotist  religion  of  which  the  government  is  aware.  While 
this  explanation  satisfies  us  as  to  the  exception's  rationality,  we 
note  that  another  bona  fide  tribal  Native  American  peyotist 
organization  may  well  have  a  valid  equal  protection  claim  based  on 
the  federal  NAC  exemption.  Peyote  Way,  not  being  a  tribal  Native 
American  organization,  is  not  the  proper  plaintiff  to  raise  this 
claim."  (Citations  Omitted).  5  Pevote  Way  Church  of  God  v. 
Thornburgh,  922  F.2d  1210,  at  1218,  Fn.4  (5th  Cir.  1991). 


271 


members  must  be  Indian'  to  be  protected  within  this 
proposed  law  and  the  Trust  Doctrine. 

4.    The  various  NAC  organizations  have  differing  membership 
criteria. 

ODESTION  #7.    Is  the  sacramental  use  of  peyote  similar  to  the 

sacramental  use  of  wine  in  other  churches? 

Yes  it  is  similar.  And  just  as  during  Prohibition  there  was 
a  federal  law  passed  to  protect  the  sacramental  use  of  wine... 
similarly,  there  needs  to  be  a  federal  law  passed  to  protect  the 
sacramental  use  of  peyote.  The  analogy  is  striking:  The 
sacramental  use  of  wine  was  not  related  to  the  nation's  alcohol 
problem  —  and  the  sacramental  use  of  peyote  is  not  related  to  the 
nation's  drug  problems  (as  stated  unequivocally  by  the  D.E.A.  at 
the  March  16th  Hearing) .  A  legal  accommodation  to  religious  needs 
is  appropriate  in  both  cases. 

QUESTION  #8.  (To  Mr.  Whitetaorse.)  Do  you  consider  yourself 
a  member  of  the  AIRFA  Coalition? 

Mr.  Whitehorse  wishes  to  clarify  for  the  record  that  although 
it  has  been  logistical ly  prohibitive  for  him  to  personally 
participate  in  many  of  the  AIRFA  Coalition's  meetings,  conferences 
and  Hearings  he,  as  President  of  the  Native  American  Church  of 
Navajoland,  has  eagerly  supported  this  legislative  initiative  and 
successfully  led  his  church  to  become  an  organizational  member  of 
the  AIRFA  Coalition. 

QUESTION  #9.    Is  the  NAC  primarily  located  in  the  Southwest? 

Although  this  ancient  religious  tradition  originally  entered 
the  United  States  through  the  Southwest,  it  has  expanded  throughout 


272 


much  of  Indian  Country  and  now  has  one  or  more  chapters  in  24 
states,  as  well  as  several  chapters  among  the  Indian  tribes  of  both 
Canada  and  Mexico. 

QUESTION  #10.  Do  these  proposed  AIRFA  amendments  require  that 
peyote  be  permitted  in  prisons? 

No.  It  is  the  general  feeling  among  NAC  leaders  that  prison 
is  not  an  appropriate  environment  for  their  Holy  Sacrament.  The 
liturgy  of  the  NAC  contains  a  ceremony  typically  called  "Devotional 
Services"  which  is  similar  to  a  full  NAC  prayer  service  except  that 
it  is  considerably  shorter  in  duration  (often  1  to  2  hours)  and 
does  not  include  ingesting  peyote.  NAC  leaders  generally  agree 
that  these  Devotional  Services  are  appropriate  ceremonies  in  a 
prison  setting. 

The  x Prisoner's  Rights'  section  of  the  proposed  AIRFA 
amendments  specifically  states  in  §301(a)(2): 

In  no  case,  however,  shall  the  provisions  of  paragraph  (1)  be 

construed  as  requiring  prison  authorities  to  permit  (nor 

prohibit  them  from  permitting)  access  to  peyote  or  Native 

American  religious  sites. 

We  hope  we  have  adequately  paraphrased  the  questions  the 
Committee  posed  at  the  Hearing  regarding  our  Native  American 
Church,  and  that  these  responses  are  helpful  to  your  understanding 
of  the  problems  we  are  attempting  to  redress. 

Thank  you  again  for  conducting  a  fine  Oversite  Hearing  on 
these  issues  that  are  at  the  very  heart  of  our  spiritual  and 
cultural   life.    We  look  forward  to  working  with  your  new 


273 


Subcommittee  and  all  of  Congress  so  that  our  human  dignity  might  be 

reflected  in  the  laws  of  this  land. 

Respectfully  submitted  this  ZXxd  day  of  March,  1993. 

NATIVE  AMERICAN  CHURCH  OF  NATIVE  AMERICAN  CHURCH  OF 

NORTH  AMERICA  NAVAJOLAND,  INC. 

DOUGLAS  J.  LONG,  ROBERT  BILLY  WHITEHORSE, 

President  President 


274 


The  Confederated  Salish  and  Kootenai  Tribes  of  the  Flathead  Nation 

FLATHEAD  CULTURE  COMMITTEE 
P.O.  Box  418  -  St  Ignatius,  MT  59865 
(406)  745-4572 


Clarence  Woodcock  -  Director 

Tony  Incashola  -  Assistant  Director 

Lucy  Vanderburg  -  Language  Specialist 

Felicite  McDonald  -  Translator  and  Advisor 

Harriet  Whitworth  -  Advisor 

Germaine  DuMontier  -  Cultural  Resource  Protection  Manager 

Terry  Tanner  -  Cultural  Resource  Protection  Assistant 

Marie  Torosian  -  Historical  Collections  Manager 

Gloria  Whitworth  -  Secretary 

United  States  House  of  Representatives 
Native  American  Affairs  Subcommittee 
Rep.  Bill  Richardson,  Chairman 

RE:   House  Oversight  Hearings  on  American  Indian  Religious  Freedom  Act 
March  16, 1993 

Written  testimony  of  Clarence  Woodcock 

Director,  Flathead  Culture  Committee 

Confederated  Salish  and  Kootenai  Tribes  of  the  Flathead  Nation 


Mr.  Chairman  and  Members  of  the  Committee: 

Thank  you  for  this  opportunity  to  testify  before  the  Indian  Affairs  Committee 
on  the  crucial  matter  of  the  American  Indian  Religious  Freedom  Act.   No  other 
issue  before  Congress  is  of  such  profound  concern  to  my  people  or  of  such  great 
importance  to  the  survival  of  our  traditional  ways. 

My  name  is  Clarence  Woodcock.  My  address  is  Box  523,  St.  Ignatius,  MT 
59865.  I  am  the  Director  of  the  Flathead  Culture  Committee,  which  is  a  branch  of 
the  tribal  government  of  the  Confederated  Salish  and  Kootenai  Tribes  of  the 
Flathead  Nation.  Our  program  was  established  in  1975  and  charged  with  the 
mission  of  "preserving,  protecting,  and  perpetuating  the  traditional  way  of  life  and 
living  culture"  of  our  people.  In  doing  this  work,  we  are  given  our  guidance  and 
direction  by  the  elders  of  the  Salish  speaking  tribes  of  the  Flathead  Indian 
Reservation,  and  we  serve  as  their  representatives  and  liasons.  Our  elders  guide  us 
in  all  matters.   We  strive  in  all  ways  to  ensure  that  their  wisdom  and  their 
knowledge  is  passed  on  to  the  generations  to  come.  Over  the  past  18  years,  we  have 
gradually  and  painstakingly  built  a  strong  program  in  both  archival  preservation 
and  the  holding  of  cultural  activities  among  our  people  that  now  serves  as  a  model 
for  many  other  tribes  across  the  nation.  Our  current  staff  of  seven  full-time 


275 


Testimony  of  Clarence  Woodcock,  page  2 

employees  now  maintain  a  vast  archives  of  cassette  and  video  recordings  of  oral 
history  and  culture,  a  vibrant  and  growing  program  in  the  revitalization  of  our 
language,  a  priceless  collection  of  several  thousand  photographs,  a  sophisticated 
program  in  Cultural  Resource  Protection,  and  an  extensive  body  of  geneology 
records.   Our  young  people  are  now  participating  in  ever-growing  numbers  in  our 
language  programs  and  in  all  of  our  cultural  doings,  from  the  Jump  Dances  of  the 
New  Year,  to  the  first  Bitterroot  ceremony  of  the  spring,  to  the  celebrations  and 
dances  of  the  summer  season. 

The  heart  of  all  of  this  is  our  spiritual  ways,  and  central  to  our  spiritual  ways 
is  the  importance  of  eagle  feathers,  which  I  have  come  to  comment  on  today. 

It  is  difficult  for  me  to  communicate  to  you  in  such  a  short  time  the 
importance  of  these  things  to  our  people.  In  order  for  you  to  understand  fully  the 
sacredness,  the  power  of  eagle  feathers,  of  the  eagle  and  its  spirit  and  the  power  of 
other  animals  and  birds  as  well,  it  would  be  necessary  for  each  of  you  to  immerse 
yourselves  in  our  cultural  ways  for  many  years.  So  today  I  will  only  try  to  express  to 
you  that  these  things  mean  everything  to  us;  they  are  our  life.  It  is  as  sacred  to  us,  as 
crucial  a  part  of  our  world,  as  the  most  sacred  cross  in  your  church  or  the  most 
sacred  altar  in  your  synagogue.  One  of  our  most  esteemed  elders,  Pete  Beaverhead 
(1900-1975),  said  that  it  was 

"as  if  the  eagle  is  sitting  on  top,  and  is  given  to  the  medicine  men  to  be  their 
strength  in  their  medicine  power.   All  the  animals  that  speak  to  you,  the 
eagle  always  plays  a  big  part.. ..That  is  why  the  Indians. ...do  not  play  with  the 
eagle  feathers,  They  respected  it  very  highly.  They  used  the  feathers  in  their 
Indian  medicine  power.   They  regarded  this  very  highly." 
In  our  traditional  ways,  not  just  anyone  can  be  the  keeper  of  an  eagle  feather.  As 
Pete  Beaverhead  said,  it  is  "the  highest  honor."   It  is  something  that  marked  the 
feats  of  courage  by  which  our  warriors  defended  our  people  from  great  dangers. 
Feathers  hung  from  coup  sticks  and  warrior  shields,  the  "flags"  of  our  tribal  nations. 
Even  the  gathering  of  the  feathers  was  done  by  very  specific,  careful,  prayerful  ways. 
At  certain  times,  certain  medicine  men  would  construct  eagle  pits  in  which  they 
would  hide  to  capture  eagles  in  order  to  use  the  feathers  for  these  special  purposes. 
Everything  about  the  eagle  feathers  -  how  they  are  acquired,  how  they  are  regarded, 
how  they  are  used,  how  they  are  taken  care  of  -  is  surrounded  with  the  greatest  care, 
respect,  and  spiritual  attention. 

All  of  this  has  made  it  at  times  difficult  and  painful  for  our  people  to  secure 
eagle  parts  and  feathers  through  the  federal  bureaucratic  channels  that  have  now 
been  in  place  for  some  years.  The  eagle  seems  to  be  handled  as  just  another 
bureaucratic  matter,  to  be  handled  through  endless  forms  and  paper  shuffling.  It  is 
not  treated  as  the  powerful  sacred  matter  that  it  is.  Furthermore,  some  of  our 
people  do  not  feel  as  comfortable  speaking  English  and  they  become  intimidated  by 
the  language  barrier,  particularly  when  dealing  with  the  seemingly  endless  forms 
that  are  required.   Much  of  our  reservation  consists  of  rural  areas  without  street 
addresses  or  telephones;  this  at  times  has  presented  more  difficulties  in  filling  out 
the  forms.   The  forms  also  request  very  sensitive  information  about  the  purpose  for 
which  the  eagle  will  be  used.   And  finally,  there  is  often  an  extremely  long  waiting 
period  before  receiving  the  eagle,  in  spite  of  an  apparent  backlog  of  deceased  birds  in 


276 


Testimony  of  Clarence  Woodcock,  page  3 

cold  storage  at  federal  facilities.  It  is  not  uncommon  for  people  to  wait  two  years  or 
more  before  receiving  an  eagle.  Sometimes,  when  the  birds  do  arrive,  they  are  in  a 
badly  decomposed  condition,  having  been  cared  for  very  poorly. 

All  of  this  adds  up  to  an  extremely  discouraging  situation  for  a  vitally 
important  part  of  our  spiritual  life. 

We  think  that  we  have  a  recommendation  that  would  provide  a  good, 
workable  solution  to  these  problems.  This  is  to  streamline  the  process  and  make 
use  of  the  well-established  tribal  institutions  that  are  now  in  place  among  many 
tribes,  including  our  own.  On  our  reservation,  for  example,  it  would  be  ideal  if  our 
Flathead  Culture  Committee  -  which,  as  described  above,  is  a  duly  established 
branche  of  the  tribal  government  and  serves  as  the  liason  for  the  tribal  elders  — 
could  serve  as  the  reviewing  board  for  requests  for  eagles  and  feathers  among  our 
Salish-speaking  tribes.  We  would  have  a  much  closer  knowledge  of  the  legitimacy 
of  the  request  than  any  federal  agency,  and  a  much  greater  sensitivity  to  the  cultural 
issues  involved;   furthermore,  there  would  be  no  problems  associated  with 
language  barriers  or  unknown  addresses  or  telephone  numbers.   The  Culture 
Committee  would  then  pass  on  approved  requests  directly  to  the  federal  repositories 
and  also  serve  as  the  recipient  of  the  shipments,  and  of  course  be  held  responsible 
for  them  until  turned  over  to  the  individual  applicant. 

We  think  that  this  solution  would  not  only  be  the  best  expression  of  the  just 
principal  of  tribal  self-rule,  but  also  a  smoother,  better  functioning  bureaucratic 
process.   And  it  would  help  make  real  the  promise  of  American  Indian  religious 
freedom. 

There  is  one  final  matter  we  would  like  to  mention  here.  The  eagle  is  of 
great  importance  and  sacredness  to  our  people  -  and  so  are  many  other  birds  and 
animals.  We  understand  that  many  of  these  are  also  held  in  federal  storage 
facilities.  We  would  like  to  explore  the  possibility  of  expanding  the  request  form  to 
include  these  other  birds  and  animals. 


tlaUtUL  JljfTtCJC^ 


277 


March  8,  1993 


Representative  Nell  Abercromble 
U.  S.  House  of  Representatives, 
Committee  on  the  Interior 
Sub-Committee  on  Indian  Affairs 


TESTIMONY  REGARDING  PROPOSED  AMENDMENTS  TO  THE  AMERICAN  INDIAN 

RELIGIOUS  FREEDOM  ACT 

Aloha  Representative  Abercromble  and  Members  of  the  Sub  Committee. 

Thank  you  for  the  opportunity  to  submit  testimony  on  proposed  Amendments 
to  the  American  Indian  Religious  Freedom  Act  As  Representative 
Abercromble  knows,  The  Temple  of  Lono  Is  a  non-profit  Traditional 
Hawaiian  Religious  Organization  whose  members  would  be  greatly  affected 
by  the  Amendments  you  are  considering.  As  one  of  the  first  groups  to  test 
Public  Law  95-341  by  gaining  access  through  federal  lands  for  rededlcatlon 
of  the  temple  of  Ku  and  Hlna  at  Mo'okapu,  O'ahu  In  1981,  we  have  since  seen 
our  rights  and  freedoms  abridged  and  restricted.  These  amendments  are 
essential  to  guarantee  the  promise  of  freedom  of  religion  for  Native 
Americans. 

We  are  pleased  that  many  of  our  concerns  with  previous  drafts  have  been 
addressed  in  the  latest  proposal.  However,  we  offer  the  following 
suggestions  and  comments: 

1 .  In  Section  3,  Definitions.  Paragraph  7,  a  Native  Hawaiian  Organization  is 
defined.  In  our  view,  such  an  organization  should  be  comprised  of 
members  who  both  practice  or  conduct  ritual  and  utilize,  preserve  and 
protect  religious  sites.  We  suggest  that  the  conjunction  "or"  at  the  end 
of  sub-paragrapn  A  be  replaced  with  the  conjunction  "and". 

2.  There  Is  no  definition  for  Native  American  Traditional  Religious 
Organization.  As  this  legislation  is  Intended  to  preserve  and  protect  the 
rights  of  Native  Americans  to  worship  in  their  traditional  way.  we  would 


TUTmokvtlont     P.0.Sw627e     HoMiw  Shoppy  Cantor     HoncMu,  H»wiii  9MI8 


278 


think  that  religious  organizations  would  be  the  first  to  be  consulted.  We 
offer  the  following  definition: 

-  serves  and  represents  the  Interest  of  Native  Americans  In  the  area  of 
traditional  religion  (spirituality) 

-  has  a  primary  and  stated  purpose  the  provision  of  services  to  Native 
Americans 

-  has  natives  In  its  membership 

-  practices  traditional  religion  or  conducts  traditional  ceremonial 
rituals 

-  utl llzes,  preserves  and  protects  native  sacred  sites  and  areas. 

in  addition.  Section  103.  Notice,  should  state  that  Native  American 
Traditional  Religious  Organizations  will  t>e  consulted  and  notified 
whenever  a  situation  falls  within  the  scope  of  the  law. 

3   Title  III  -  Prisoners  Rights  establishes  a  commission  to  investigate  the 
conditions  of  Native  American  prisoners  In  the  Federal  and  State  prison 
systems.  In  Hawaii  a  large  percentage  of  the  prison  population  are 
Native  Hawaiian.  We  suggest  that  an  additional  requirement  be  placed  on 
the  makeup  of  the  Commission:  "At  least  one  (1)  of  the  Native  American 
Commission  members  shall  be  a  Native  Hawaiian." 

A,  We  strongly  suggest  that  there  be  some  public  notice  requirement 
(publish  in  the  newspaper)  so  that  all  Native  Americans  will  be  advised 
or  undertakings  affected  by  this  law. 

5    It  appears  that  there  Is  no  specific  process  or  procedure  that  addresses 
an  inadvertent  discovery  of  a  sacred  site  after  a  complete  survey  and 
development  of  land  management  plans.  There  is  a  need  to  ensure  that 
the  undertaking  which  resulted  In  an  Inadvertent  discovery  will 
immediately  be  suspended  and  a  process  will  be  followed  that  will 
ensure  the  preservation  of  Native  American  rights  with  respect  to  the 
sacred  site. 

6.  in  the  past,  we  have  found  that  the  Federal  government  has  been  more 
responsive  than  State  and  County  governments  to  the  needs  of  Native 
Americans  who  wish  to  practice  their  traditional  religion.  Ideally,  we 
would  like  to  see  these  amendments  and  the  American  Indian  Religious 
Freedom  Act  respected  at  all  levels  of  government.  We  suggest  that  the 
American  Indian  Religious  Freedom  Act  apply  to  all  undertakings  which 
receive  any  Federal  funding,  including  State.  City.  County  or  private 
undertakings. 


Th»r«mpl«ofloi»     P.0.Bok6278     Momtk*  Shopping  CtnUr     HoncWg.Hww«  96818 


279 


The  aforementioned  comments  and  suggestions  are  based  on  the  latest  draft 
of  the  Senate  version  of  the  Amendments.  We  were  unaware  that  the  House 
was  considering  similar  Amendments  and  hope  our  comments  and 
suggestions  are  relevant  to  your  deliberations,  we  have  found  that  the  State 
Office  of  Hawaiian  Affairs  (OHA)  and  Hawaiian  political  organizations  fail 
to  dispense  Information  on  activities  in  Congress  to  all  Interested  parties. 
Through  Representative  Abercromble's  office  we  will  keep  abreast  of  this 
legislation  and  will  submit  future  testimony  in  a  more  timely  manner. 


THE  TEMPLE  OF  LONO 
imua  makouj  malama  pono, 


TTveLCabral 
Secretary 


oc  (F  AX)  Senetor  DnW  K.  Inouxt 


280 

NATIVE  AMERICAN  RELIGIOUS  FREEDOM  PROJECT 


Reuben  A.  Snake.  Jr.,  Coordiralor,  P.O.  Box  685.  Winnebago.  Nebraska  68071 
Telephone:    (402)878-2837 


WRITTEN  TESTIMONY  OF 
REUBEN  A.  SNAKE,  JR. 
COORDINATOR 
NATIVE  AMERICAN  RELIGIOUS  FREEDOM  PROJECT 


PRESENTED  TO 

HOUSE  SUBCOMMITTEE  ON  NATIVE  AMERICAN  AFFAIRS 

CONGRESSMAN  BILL  RICHARDSON.  CHAIRMAN 


PRESENTED  IN  CONJUNCTION  WITH 

A  HEARING  HELD  IN 

WASHINGTON,  D.C. 

ON 

MARCH  16,  1993 


281 


Congressman  Richardson  and  other  Honorable  members  of  the 
United  States  House  of  Representatives,  my  name  is  Reuben  A.  Snake, 
Jr.,  and  my  address  is  P.O.  Box  685,  Winnebago,  Nebraska  68071. 
This  statement  is  being  presented  for  the  record  of  hearings  held 
in  the  Native  American  Affairs  Subcommittee  of  the  Natural 
Resources  Committee  of  the  U.S.  House  of  Representatives  in  support 
of  the  need  to  amend  the  American  Indian  Religious  Freedom  Act  in 
order  to  create  a  uniform  national  law  to  protect  the  traditional 
use  of  peyote  by  Indian  people  in  our  ceremonies  and  services. 

The  Native  American  Religious  Freedom  Project  (NARFP)  was 
created  in  April,  1990,  immediately  after  the  devastating  decision 
in  the  U.S.  Supreme  Court  case  Employment  Division  of  Oregon  v. 
Smith,  494  U.S.  872  (1990).  I  was  first  asked  by  the  Native 
American  Church  of  the  Omaha  Tribe  and  then  by  the  Native  American 
Church  of  the  Winnebago  Tribe  of  Nebraska  to  pursue  their  interests 
in  overcoming  the  impact  of  that  decision  so  that  Native  American 
Church  members  could  be  made  whole,  and  be  legally  accommodated  so 
that  the  stigmas,  risks  of  prosecution  and  other  discriminatory 
effects  that  came  with  the  Smith  decision  would  no  longer  be  a 
burden  upon  us. 

Since  NARFP  was  created,  we  have  received  the  endorsement  of 
the  Native  American  Church  of  North  America,  and  have  organized  or 
participated  in  literally  dozens  of  meetings  and  conferences 
involving  Native  American  Church  leaders  and  members  from 
throughout  the  country. 

For  instance,  there  was  a  meeting  with  constitutional  law 
scholars  and  theologians  at  the  Harvard  Divinity  School  in  November 


282 


of  1990;  a  Native  American  Church  Leaders  Summit  meeting  in  August 
of  1991  on  the  Winnebago  Indian  Reservation  in  Nebraska;  an 
American  Indian  Religious  Freedom  Summit  in  Albuquergue  in  November 
of  1991;  lengthy  discussions  at  the  annual  meetings  of  every  major 
Native  American  Church  organization  in  America;  numerous 
presentations  to  the  Tribal  Leaders  Forum  and  the  National  Congress 
of  American  Indians  during  this  post-Smith  era;  and  to  date  five 
Field  Hearings  before  the  renamed  Senate  Committee  on  Indian 
Affairs. 

In  virtually  each  and  every  one  of  those  forums  and  many 
others  we  have  found  overwhelming  support  for  the  need  to  amend  the 
American  Indian  Religious  Freedom  Act  to  protect  our  sacrament,  our 
churches  and  our  way  of  life. 

In  addition,  we  have  held  briefing  sessions  with  the 
Department  of  Justice,  the  Drug  Enforcement  Administration  and  the 
Texas  Department  of  Public  Safety.  We  consider  those  entities 
friends  of  our  Native  American  Church  and  look  forward  to  working 
with  them  in  resolving  this  crisis  in  fundamental  human  rights. 

Interest  in  and  sympathy  for  our  current  debilitating  and 
unnecessary  plight  has  spread  beyond  our  nation's  shores.  I  have 
personally  appeared  on  German  national  television,  and  been 
interviewed  in  three  French  magazines  as  well  as  a  newsletter 
circulated  throughout  South  America  serving  the  Indigenous  peoples 
of  those  lands. 


283 


Every  major  Native  American  Church  organization  in  the  country 
has  officially  joined  the  American  Indian  Religious  Freedom 
Coalition  for  the  purpose  of  supporting  comprehensive  amendments  to 
AIRFA  as  proposed  by  the  Coalition.  Those  groups  include  the 
Native  American  Church  of  North  America,  the  Native  American  Church 
of  Navajoland,  the  Native  American  Church  of  Oklahoma  and  the 
Native  American  Church  of  South  Dakota.  In  addition  to  those 
multi-chapter  organizations,  independent  NAC  organizations  such  as 
Crow  Indian  Peyote  Ceremonies  and  the  Native  American  Church  of 
Wyoming  have  also  joined  the  Coalition. 

The  degree  of  support  for  comprehensive  federal  legislation  to 
protect  and  preserve  the  Native  American  Church  is  truly 
remarkable.  Nearly  every  single  chapter  of  the  NAC  is  in  support 
of  the  specific  language  which  appears  as  Title  II  of  proposed 
AIRFA  amendments  that  have  been  circulated  by  the  AIRFA  Coalition 
and  by  Senator  Inouye's  office.  I  have  attached  a  copy  of  that 
text  to  this  testimony. 

As  with  any  religious  tradition,  there  are  a  few  NAC  chapters 
who  would  prefer  a  different  approach  to  the  language  of  the  bill, 
but  I  think  it  is  safe  to  say  that  virtually  every  NAC  group 
supports  the  need  for  remedial  legislation  in  light  of  the  Smith 

decision. 

This  problem,  which  the  Native  American  Church  did  not  create, 
is  immediate  and  critical.  Our  elders  and  our  children  are  looking 


284 


to  the  legislative  branch  of  the  federal  government  to  undo  the 
damage  done  by  the  judicial  branch.  We  call  upon  you  with  a  strong 
and  clear  voice  to  find  the  time  to  understand  and  the  courage  to 
do  the  right  thing.   Then  we  can  all  walk  in  a  dignified  manner. 

We  will  pray  for  you. 

Respectfully  Submitted  on  this  16th  day  of  March,  1993. 

BY: 

REUBEN  A.  SNAKE,  JR.,  Coordinator 
NATIVE  AMERICAN  RELIGIOUS 
FREEDOM  PROJECT 


285 


PROPOSED  AMENDMENT 

TO  THE 

AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT 

REGARDING 
THE  TRADITIONAL  USE  OF  PEYOTE 

"TITLE  H  -  TRADITIONAL  USE  OF  PEYOTE 

"SEC.  201.  FINDING. 
"The  Congress  finds  that  - 

"(1)  some  Indian  people  have  used  the  peyote  cactus  in  various  ceremonies  for 
sacramental  and  healing  purposes  consistently  for  many  generations,  and  such  uses  have  been 
significant  in  perpetuating  Indian  tribes  and  cultures  in  that  such  ceremonies  promote  and 
strengthen  the  unique  cultural  cohesiveness  of  Indian  tribes; 

"(2)  since  1965,  this  ceremonial  use  of  peyote  by  Indians  has  been  protected  by  Federal 
regulation,  which  exempts  such  use  from  Federal  laws  governing  controlled  substances,  and  the 
Drug  Enforcement  Administration  has  manifested  its  continuing  support  of  this  Federal 
regulatory  system; 

"(3)  the  State  of  Texas  encompasses  virtually  the  sole  area  in  the  United  States  in  which 
peyote  grows,  and  for  many  years  has  administered  an  effective  regulatory  system  which  limits 
the  distribution  of  peyote  to  Indians  for  ceremonial  purposes; 

"(4)  while  numerous  States  have  enacted  a  variety  of  laws  which  protect  the  ceremonial 
use  of  peyote  by  Indians,  many  others  have  not,  and  this  lack  of  uniformity  has  created 
hardships  for  Indian  people  who  participate  in  such  ceremonies; 

"(5)  the  traditional  ceremonial  use  by  Indians  of  the  peyote  cactus  is  integral  to  a  way 
of  life  that  plays  a  significant  role  in  combating  the  scourge  of  alcohol  and  drug  abuse  among 
some  Indian  people; 


286 


"(6)  the  United  States  has  a  unique  and  special  historic  trust  responsibility  for  the 
protection  and  preservation  of  Indian  tribes  and  cultures,  and  the  duty  to  protect  the  continuing 
cultural  cohesiveness  and  integrity  of  Indian  tribes  and  cultures; 

"(7)  it  is  the  duty  of  the  United  States  to  protect  and  preserve  tribal  values  and  standards 
through  its  special  historic  trust  responsibility  to  Indian  tribes  and  cultures; 

"(8)  existing  Federal  and  State  laws,  regulations  and  judicial  decisions  are  inadequate  to 
fully  protect  the  ongoing  traditional  uses  of  the  peyote  cactus  in  Indian  ceremonies; 

"(9)  general  prohibitions  against  the  abusive  use  of  peyote,  without  an  exception  for  the 
bona  fide  religious  use  of  peyote  by  Indians,  lead  to  discrimination  against  Indians  by  reason  of 
their  religious  beliefs  and  practices;  and 

"(10)  as  applied  to  the  traditional  use  of  peyote  for  religious  purposes  by  Indians, 
otherwise  neutral  laws  and  regulations  may  serve  to  stigmatize  and  marginalize  Indian  tribes  and 
cultures  and  increase  the  risk  that  they  will  be  exposed  to  discriminatory  treatment. 
"SEC.  202.  TRADITIONAL  USE  OF  PEYOTE. 

"(a)  Notwithstanding  any  other  provision  of  law,  the  use,  possession  or  transportation  by 
an  Indian  of  peyote  for  bona  fide  ceremonial  purposes  in  connection  with  the  practice  of  a 
Native  American  religion  by  an  Indian  is  lawful  and  shall  not  be  prohibited  by  the  Federal 
Government  or  any  State.  No  Indian  shall  be  penalized  or  discriminated  against  on  the  basis  of 
such  use,  possession  or  transportation,  including,  but  not  limited  to,  denial  of  otherwise 
applicable  benefits  under  public  assistance  programs. 

"(b)  Nothing  in  this  section  shall  prohibit  such  reasonable  regulation  and  registration  of 
those  persons  who  import,  cultivate,  harvest  or  distribute  peyote  as  may  be  consistent  with  the 
purpose  of  this  title. 


287 


WRITTEN  TESTIMONY  OP 
ED  RED  EAGLE,  JR. 
VICE-PRESIDENT 
NATIVE  AMERICAN  CHURCH  OF  OKLAHOMA 


PRESENTED  TO 

HOUSE  SUBCOMMITTEE  ON  NATIVE  AMERICAN  AFFAIRS 

CONGRESSMAN  BILL  RICHARDSON,  CHAIRMAN 


CONCERNING 
AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT  AMENDMENTS 
THE  TRADITIONAL  USE  OF  PEYOTE 


PRESENTED  IN  CONJUNCTION  WITH 

A  HEARING  HELD  IN 

WASHINGTON,  D.C. 

ON 

MARCH  16,  1993 


288 


STATEMENT 

Congressman  Richardson,  members  of  the  Subcommittee,  thank  you 
for  this  opportunity  to  submit  testimony  on  a  most  important 
matter.  My  name  is  Ed  Red  Eagle,  Jr.,  and  I  reside  at  Route  1,  Box 
1419,  Barnsdall,  Oklahoma.  I  am  a  member  of  the  Osage  Tribe,  and 
I  am  the  Vice-President  of  the  Native  American  Church  of  Oklahoma. 

The  Native  American  Church  of  Oklahoma  supports  the  draft 
amendments  to  AIRFA  regarding  the  traditional  use  of  peyote  as  they 
have  been  proposed  by  the  AIRFA  Coalition  on  the  Senate  side  in 
conjunction  with  Senator  Inouye.  There  are  seventeen  chapters  of 
the  NAC  of  Oklahoma,  made  up  of  members  of  21  Oklahoma  tribes. 
There  are  perhaps  3,500  Indians  in  our  state  affiliated  with  our 
church . 

At  the  1992  Annual  Meeting  of  the  NAC  of  Oklahoma,  eleven  of 
those  seventeen  chapters  were  represented.  All  those  in  attendance 
voted  unanimously  to  endorse  this  proposed  legislation  in  a  form 
consistent  with  the  substance  and  definitions  of  the  bill  that  has 
been  circulated  in  draft  form.  The  NAC  of  Oklahoma  has  also 
formally  joined  the  broad-based  Coalition  that  is  advocating  for 
passage  of  this  bill. 

As  an  officer  of  the  Native  American  Church  of  Oklahoma, 
however,  I  must  tell  you  that  not  all  of  our  chapters  support  the 
language  of  the  draft  bill.  There  are  a  few  chapters  of  our  church 
who  would  prefer  an  approach  whereby  the  definition  of  "Indian"  is 
linked  to  a  25%  Indian  blood  quantum  rather  than  to  tribal 
membership.  However  the  majority  of  our  church  favors  a  definition 


289 


linked  to  tribal  membership.   As  with  any  other  religious  group, 
not  all  the  members  agree  on  everything. 

There  will  be  testimony  submitted  for  the  written  record  of 
these  Hearings  as  to  the  long  and  rich  history  of  this  Native 
American  Church  way  of  life  in  Oklahoma  and  elsewhere;  as  well  as 
testimony  of  the  long  and  ugly  history  of  oppression  this  church 
has  faced  at  times  in  Oklahoma  and  elsewhere  since  the  last 
century.  I  am  attaching  for  the  record  a  research  article  written 
by  Virgil  Franklin  which  serves  that  purpose. 

But  today  I  would  like  to  take  these  few  minutes  to  describe 
some  of  the  present  day  problems  we  are  facing  related  to  what  the 
Supreme  court  did  to  us  in  the  Smith  case  of  1990. 

1.  The  legal  protection  for  our  sacrament  in  Oklahoma  is  not 
found  in  a  statute.  It  was  assumed  to  be  in  the  First  Amendment, 
and  that  was  affirmed  by  the  Oklahoma  courts  in  Whitehorn  v. 
Oklahoma  in  1977,  which  found  specifically  that  this  way  of  worship 
was  protected  by  the  Free  Exercise  Clause.  However,  since  the 
Smith  decision  in  1990,  no  one  knows  the  state  of  the  law  in 
Oklahoma.  This  has  created  tremendous  confusion  and  hardship  in 
our  state  as  evidenced  by  the  following  examples: 

2.  In  1991,  because  of  Smith,  an  attempt  was  made  to  get  a 
law  passed  in  the  Oklahoma  legislature  to  protect  our  sacrament. 
But  because  of  the  fear  and  misunderstanding  created  by  Smith  there 
was  no  agreement  on  what  that  law  should  or  could  now  say.  The 
result  was  that  no  law  was  passed. 


290 


3.  Also  in  1991,  an  older  life-long  member  of  the  NAC  in 
Oklahoma  was  arrested  on  a  state  felony  charge  for  his  use  of 
peyote  in  the  Native  Americar  Church.  After  many  months, 
considerable  expense  and  lengthy  pre-trial  negotiations,  the  case 
was  ultimately  dismissed.  But  that  experience  caused  a  great  deal 
of  anxiety  for  that  church  member  who  could  have  been  sent  to 
prison  for  ten  years  simply  for  exercising  the  religion  of  his 
life.  And  it  also  caused  a  great  deal  of  anxiety  for  the  many 
members  of  the  NAC  throughout  the  state.  We  do  not  know  who  might 
be  arrested  next  by  local,  county  or  state  officials. 

4.  As  another  example  of  the  immediate  need  for  this  uniform 
national  law,  as  recently  as  January  of  1993,  a  member  of  the 
Shawnee  Tribe  of  Oklahoma  who,  along  with  his  family,  is  also  a 
member  of  our  church  enlisted  in  the  Navy.  His  family  has  a 
history  of  serving  in  the  armed  services.  During  his  processing  at 
a  Naval  base  in  Florida,  he  was  asked  routine  background  questions. 
When  he  informed  the  processing  officers  of  his  membership  in  the 
Native  American  Church,  he  was  summarily  kicked  out  and  sent  home. 

5.  Finally,  because  of  our  geographical  location  many  NAC 
chapter  representatives  from  other  states  pass  through  Oklahoma 
when  making  a  religious  pilgrimage  to  the  Peyote  Gardens  in  Texas. 
Given  the  problems  I've  described,  they  may  not  feel  free  to  travel 
through  our  state...  they  might  be  charged  with  a  state  felony 
while  simply  and  humbly  engaging  in  a  religious  practice  taught  to 
them  by  their  parents  and  grandparents.  These  are  good  devout 
people  sent  by  their  local  church  chapters  to  Texas  to  lawfully 


291 


purchase  the  peyote  sacrament,  just  as  they  have  done  for  many 
years.  Many  of  these  people  are  elders,  are  leaders  in  their 
tribal  communities.  They  may  have  their  children  or  their 
grandchildren  with  them.  What  are  they  to  do  when  they  come  to  the 
border  of  Oklahoma,  or  any  other  state  that  may  either 
inadvertently  or  intentionally  consider  them  criminals? 

CONCLUSION 

Congressman,  these  problems  are  real  and  immediate.  We  cannot 
go  on  in  a  dignified  manner  subjected  to  such  treatment.  How  can 
we  be  expected  to  live  like  this  in  America? 

So  this  is  a  national  problem  for  Indian  people,  and  it  is  a 
human  rights  crisis  in  a  country  that  prides  itself  on  religious 
freedom.  On  behalf  of  the  Native  American  Church  of  Oklahoma,  I 
urge  you  to  do  everything  you  can  to  move  these  AIRFA  amendments 
through  Congress  with  all  deliberate  speed.  Thank  you  for  this 
opportunity  to  address  your  Committee. 

Respectfully  submitted  this  16th  day  of  March,  1993. 

BY: 

ED  RED  EAGLE,  JR. ,  Vice-President 
NATIVE  AMERICAN  CHURCH  OF  OKLAHOMA 


292 


ADMINISTRA  TION 

& 

MANAGEMENT 


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V 


P.O.  Box  38 

Concho.  Oklahoma  73022 

U>05)  262-0345 


III! K.  \ 


PEYOTE 

AN  OVERVIEW  OF  THE  NATIVE  AMERICAN  CHURCH  FROM  ITS  INCEPTION  TO 
THE  PRESENT  DATE  WITH  DEVELOPMENT  OF  A  NATIONAL  INDIAN  LEGISLATIVE 
AGENDA  FOR  THE  102ND  CONGRESS  OF  THE  UNITED  STATES  AND  THE  1990s 


PRESENTED  BY:   VIRGIL  FRANKLIN,  ARAPAHO  CHIEF 
NATIVE  AMERICAN  CHURCH  OF  OKLAHOMA 


TO:  Oklahoma  Tribal  Leaders  Forum,  Conducted  by  Senator  Daniel  K.  Inouye,  Hawaii, 
Chairman,  and  Senator  Don  Nickels,  Oklahoma,  Select  Committee  on  Indian  Affairs, 
United  States  Senate 


DATE:   March  9,  1991 

The  Peyote  Religion  is  probably  the  oldest  religion  on  the  North  American  continent 
Its  ancient  roots  are  lost  in  time.  The  Witte  Museum  of  San  Antonio,  Texas,  possesses 
Peyote  specimens  recovered  from  the  Shumla  cave,  overlooking  the  Rio  Grande  River,  five 
miles  north  of  the  Pecos  River  confluence.  These  Peyote  specimens  were  recovered  in  a 
hunter-gatherer  Indian  archeological  context,  and  were  carbon- 14  dated  to  the  date  of  5,000 
B.C.  The  evidence  suggests  that  Native  American  people  have  continuously  used  Peyote  for 
over  10,000  years,  from  the  era  of  late  Pleistocene  Palo-Indian  hunters  of  mammoth, 
mastodon,  giant  bison,  and  other  now  long  extinct  animals,  to  the  present  day. 

.'  «  > 

The  use  of  the  Peyote  cactus  for  religious  purposes  was  occurring  on  this  continent 
before  Columbus  was  born.  The  Spanish  Conquerors  of  the  16th  Century  chronicled  Indians 
using  various  plants  including  what  was  described  as  the  curious  tasting  Peyote.  The  name 
Peyote  is  derived  from  the  Aztec  language. 

The  Spanish  Conquistadors  issued  an  edict  in  1620  forbidding  the  Indians  from  using 
Peyote  as  it  was  considered  "pagan"  and  "opposed  to  the  purity  and  integrity  of  our  Holy 
Catholic  Faith".  At  that  time,  many  Taos  Pueblo  Indians  were  publicly  flogged  for  the  use 
of  Peyote.  The  Pueblo  Indians  undoubtedly  shared  Peyote  with  the  Navajo  Indians. 


293 


The  Native  American  Church 
Position  Paper 
March  9,  1991 
Page  2 


The  traditional  range  of  the  Plains  Indians  extended  south  into  the  area  of  the  Rio 
Grande  where  the  Peyote  cactus  naturally  occurs.  The  Plains  Indian  culture  adopted  the 
religious  use  of  Peyote  from  southern  Indian  cultures  that  they  traded  with.  The  location 
of  the  Southern  Plains  Indians  in  Oklahoma  in  the  latter  part  of  the  19th  century  further 
disbursed  the  religious  use  of  Peyote  among  the  many  tribes  removed  to  and  concentrated 
in  Oklahoma.  From  Oklahoma,  the  Peyote  religion  extended  north  throughout  the  Rocky 
Mountains  and  northern  plains  and  into  Canada. 

In  the  early  20th  century,  the  Peyote  religion  was  well  established  among  all  of  the 
Oklahoma  Indians,  with  the  exception  of  a  few  southeast  tribes.  Today,  Peyote  has  become 
a  unifying  influence  in  Indian  life.  It  provides  the  basis  for  prayer  services,  friendships, 
relationships,  social  gatherings,  travel,  marriage,  and  much  more.  It  is  a  source  of  comfort, 
inspiration  and  healing  and  of  means  of  expression  for  the  Indian  people.  Peyote  has 
brought  together  all  of  the  Indian  tribes  and  has  produced  the  strongest  Pan-Indian 
movement  in  the  United  States.  Through  Peyote,  Indians  have  been  able  to  find  some 
answers  to  their  condition  in  white  America  and  to  do  so  in  their  own  traditional  way,  at 
their  own  pace,  on  their  own  ground.  Activities  of  the  Native  American  Church  have  also 
assisted  non-Indian  people  spiritually  and  given  them  sanctuary  from  drugs  and  alcohol  and 
increased  the  success  and  productivity  of  their  lives. 

Peyote  has  sometimes  been  an  object  of  controversy.  The  prohibition  era  raised 
concern  among  the  Indians  that  their  Holy  Sacrament  Peyote  would  be  prohibited.  In  fact, 
anti-Peyote  activity  had  been  occurring  by  federal  Indian  agents. 

James  Mooney,  an  ethnologist  with  the  Smithsonian  Institution's  Bureau  of  American 
Ethnology,  had  spent  many  years  with  the  Kiowi  tribe.  He  was  sent  among  the  Kiowas  by 
the  Smithsonian  to  study  their  interesting  and  colorful  pictorial  calendar  and  Peyote  ritual. 
James  Mooney  was  honored  to  participate  in  their  religious  ceremony  involving  the  use  of 
Peyote.  James  Mooney  recognized  that  the  ceremony  was  an  ancient  religion  deserving  of 
official  sanction  and  entitled  to  legislative  and  Constitutional  protection.  Various  Indian 
tribes  with  the  assistance  of  James  Mooney  first  formally  chartered  the  Native  American 
Church  in  Oklahoma  in  1918.  Mooney  drafted  the  Articles  of  Incorporation  that  were 
signed  by  the  Chiefs  of  various  tribes  and  filed  with  the  Oklahoma  Secretary  of  State. 

The  Native  American  Church  is  a  Christian  religion.  The  Indians  accepted  the  Bible 
and  the  teachings  of  Christ.  This  transition  was  easier  than  one  might  assume  for  the 
Indians.  Indian  people  are  very  spiritual  and  are  traditionally  mono-theistic.  Indians 
believed  in  one  Creator  that  was  the  mother/father  of  all  creation.  They  readily  accepted 
and  revered  the  Creator's  son,  Jesus  Christ.   Indian  people  have  used  prayer  for  several 


68-366  -  93  -  11 


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The  Native  American  Church 
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March  9,  1991 
Page  3 


thousand  years.  Indians  knew  how  to  humbly  and  earnestly  pray  and  communicate  with  the 
great  spirit  long  before  the  "discovery"  of  America.  The  Christian  religion  involves  prayer. 
It  was  easy  for  Indian  people  to  accept  the  Christian  tradition  of  prayer  since  it  had  always 
been  a  part  of  their  religion  and  daily  lives. 

Since  its  "official"  beginning  in  1918,  the  Native  American  Church  membership  has 
grown  to  an  estimated  250,000,  to  perhaps  as  many  as  400,000,  members.  Precise  numbers 
are  impossible  to  determine,  in  that  membership  roles  are  not  maintained  by  many  state 
chapters.  The  Native  American  Church  is  not  a  monolith.  Like  the  European  Christian 
faith  that  experienced  schisms  from  the  Roman  Catholic,  Greek  Orthodox,  Anglican  and 
various  Protestant  faiths,  the  Native  American  Church  has  divided  into  various  official 
organizations.  Although,  the  dynamic  of  schism  sometimes  produces  conflict  and  rivalry,  it 
is  a  positive  growth  process  of  religious  institutions. 

The  Native  American  Church  of  Oklahoma  is  the  original  Native  American  Church 
and  one  of  the  primary  Native  American  Churches  existant  today.  There  are  many  other 
independent  state  and  local  Native  American  Church  organizations. 

The  Native  American  Church  has  generally  enjoyed  legal  sanction  and  Constitutional 
status  in  the  various  Indian  states  in  which  its  membership  primarily  resides.  In  1945  the 
Bureau  of  Indian  Affairs  recognized  the  Native  American  Church.  In  1954  Peyote  was 
legalized  in  South  Dakota  for  religious  use.  In  1957  Montana  removed  a  34  year  Peyote 
ban.  In  1957  the  first  official  importation  of  Peyote  was  made  into  Canada;  in  1989  Canada 
fully  legalized  Peyote.  In  1959  Peyote  was  legalized  by  the  New  Mexico  state  legislature  for 
religious  use.  Peyote  is  legalized  for  religious  adherents  and  members  of  the  Native 
American  Church  in  the  state  of  Oklahoma,  Colorado,  Wyoming,  Nevada,  Texas  and  various 
other  states. 

In  1960,  the  Marv  Attikai  case  was  decided  in  Arizona.  The  state  judge  ruled  that 
Ms.  Attikai,  a  Navajo,  had  a  First  Amendment  Constitutional  right  to  use  Peyote.  The 
Native  American  Church  assisted  Ms.  Attikai  in  this  case.  Shortly  thereafter,  several  Navajo 
railroad  workers  were  charged  in  California  with  illegal  possession  of  Peyote  when  a  Native 
American  Church  prayer  service  was  raided.  In  1964,  in  the  case  of  People  vs.  Woody,  the 
California  Supreme  Court  in  an  eloquently  worded  opinion  held  that  the  railroad  workers, 
who  were  members  of  the  Native  American  Church,  had  a  First  Amendment  constitutional 
right  to  use  Peyote  and  declared: 

"In   a   mass  society,   which  presses   at   every  point  toward 
conformity,  the  protection  of  a  self-expression,  however  unique, 


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Position  Paper 

March  9,  1991 

Page  4 

of  the  individual  and  the  group  becomes  ever  more  important. 
The  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  the  Woody  case,  the  California  Supreme  Court  relied  on  the  "compelling 
governmental  interest"  doctrine  that  had  been  announced  in  1963  by  the  United  States 
Supreme  Court  in  the  case  of  Sherbert  vs.  Verner.  In  the  compelling  interest  test,  the  state 
or  Government  was  required  to  show  that  in  overruling  a  bona  fide  invocation  of  the  First 
Amendment  free  exercise  of  religion  clause  that  the  practice  posed  a  serious  threat  to  a 
governmental  function.  The  interest  that  the  state  or  government  sought  to  protect  by  the 
religious  restriction  had  to  out  weigh  the  interference  with  the  religious  practice  of  the 
individual  or  group  that  was  being  restricted  from  their  religious  practice. 

In  1965,  The  Drug  Abuse  Control  Amendments  to  be  administered  by  the  United 
States  Department  of  Health,  Education,  and  Welfare,  through  the  Food  and  Drug 
Administration,  added  Peyote  to  the  list  of  controlled  drugs.  The  commissioner  of  the  Food 
and  Drug  Administration  informed  the  Native  American  Church  "that  on  the  basis  of  the 
evidence  you  have  submitted,  we  recognize  that'Peyote  has  a  non-drug  use  in  bona  fide 
religious  ceremonies  of  the  Native  American  Church.  It  is  not  our  purpose  to  bring 
regulatory  action  based  on  the  shipment,  possession,  or  use  of  Peyote  in  connection  with 
such  ceremonies." 

The  evidence  submitted  by  the  Native  American  Church  concerning  Peyote  was 
impressive.  Anthropologists,  Weston  La  Barre,  Ph.D.  of  Duke  University,  David  McAllester, 
Ph.D.  of  Wesleyan  University,  J.  S.  Slotkin,  Ph.D.  of  the  University  of  Chicago,  Oraer 
Stewart,  Ph.D.  of  the  University  of  Colorado  and  Sol  Tax,  Ph.D.  of  the  University  of 
Chicago  jointly  authored  a  "Statement  on  Peyote"  printed  in  Science  concluding  "(T]he 
Native  American  Church  of  the  United  States  is  a  legitimate  religious  organization  deserving 
of  the  same  right  to  religious  freedom  as  other  churches;  also,  that  Peyote  is  used 
sacramentally  in  a  manner  corresponding  to  the  bread  and  wine  of  white  Christians." 

The  late  Karl  A  Menninger,  M.D.,  who  passed  away  in  July  of  1990,  at  age  96  and 
who  founded  the  world's  first  psychoanalytic  hospital,  the  Menninger  Clinic,  and  the  world 
famous  Menninger  Foundation  in  Topeka,  Kansas,  for  psychiatric  treatment,  education  and 
research  was  an  ardent  supporter  of  the  Native  American  Church.  Dr.  Menninger  was  once 
hailed  by  the  American  Psychiatric  Association  as  the  nation's  greatest  living  psychiatrist. 
Dr.  Menninger  supported  the  Native  American  Church  by  writing  regarding  Peyote,  "We 
have  taken  so  many  things  from  the  Indians  that  we  should  not  also  take  away  this  ancient 
boon." 


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M.  H.  Seever,  Ph.D.  of  the  University  of  Michigan,  Department  of  Pharmacology, 
testified  for  the  Native  American  Church  in  an  Arizona  case.  Dr.  Seever  did  extensive 
research  regarding  Peyote.  Dr.  Seever  authored  a  report  for  the  Native  American  Church 
that  stated: 

"We  have  done  a  considerable  amount  of  work  in 
the  animal  area  with  respect  to  Peyote,  both  in 
the  dog  and  the  monkey  and  find  that  we  cannot 
create  a  problem  of  addiction  like  one  is  able  to 
do  with  alcohol  and  drugs  which  are  ordinarily 
considered  to  be  in  this  class  of  substances.  This 
is  also  the  case  at  the  Federal  Narcotic  Farm  at 
Lexington  where  no  cases  of  addiction  to  Peyote 
have  ever  been  found.  We  actually  tested 
mescaline,  the  active  principal  of  Peyote,  in 
addicts  at  the  United  States  Public  Health 
Service  hospital  at  Lexington  and  found  that  they 
neither  like  the  drug  nor  were  interested  in  using 
it  as  a  substitute  for  morphine  or  drugs  of  known 
addicting  properties." 

A.  Hoffer,  Ph.D.,  M.D.  the  Director  of  Psychiatric  Research  of  the  University 
Hospital  in  the  Province  of  Saskatchewan,  Canada  attended  a  Native  American  Church 
prayer  service  in  1956,  along  with  several  colleagues,  including  his  Superintendent,  Humphry 
Osmond,  M.D.  Dr.  Osmond  later  became  Director  of  the  Bureau  of  Research  in  Neurology 
and  Psychiatry  for  the  State  of  New  Jersey  at  the  New  Jersey  Neuro-Psychiatric  Institute  in 
Princeton.  In  1962  while  Director  of  the  Institute,  Dr.  Osmond  wrote  the  President  of  the 
Native  American  Church  reflecting  on  the  Peyote  prayer  service  that  he  had  attended  with 
Dr.  Hoffer  12  years  earlier  and  stated,  "It  remains  one  of  the  most  vivid  and  remarkable 
experiences  of  my  life." 

In  1966,  John  Finlator,  the  Director  of  the  Bureau  of  Drug  Abuse  Control  of  the 
Food  and  Drug  Administration  that  had  jurisdiction  of  the  Drug  Abuse  Control 
Amendments  in  addressing  an  annual  convention  of  the  Native  American  Church  stated: 

"When  the  Congress  passed  the  Drug  Abuse  Control 
Amendments  in  1965  to  take  effect  last  February  1,  we  felt 
strongly  about  not  interfering  in  your  use  of  peyote  so  much 
that  we  specifically  designated  the  members  of  your  church  as 
legal  purchasers  of  peyote  in  the  regulations.  The  history  of  the 


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Page  6 

use  of  peyote  or  peyote-like  substances  as  sacraments  is  as  old 
as  written  history.  In  studying  the  literature  of  this  history  I 
found  myselfreferred  back  from  one  age  to  another  to  its 
beginning;  as  far  as  I  can  tell,  the  beginning  lies  in  its  use  by 
the  ancient  Persians.  Their  Bible,  called  the  Zend-Avesta, 
contains  many  references  to  medicinal  plant  "Haoma."  It 
should  be  significant  to  you  that  the  Three  Wise  Men  of  the 
east  who  came  bearing  gifts  to  the  Christ  Child  in  Bethlehem 
were  Persians  of  the  Avesta  religion.  The  Zend-Avesta,  the 
loftiest  thoughts  ever  uttered  by  man,  was  the  basis  of  religion 
three  thousand  years  ago  comparable,  in  many  ways,  to  the 
beliefs  and  practices  recognized  by  your  more  than  300,000 
members. 

We  know,  also,  that  Peyote  to  your  church  is  the 
material  representation  of  a  spirit-force,  much  as  the 
consecrated  wafer  or  unleavened  bread  and  wine  are  believed 
to  be  the  blood  and  body  of  Christ  in  other  churches.  It  is 
mentioned  as  "Teo-Nacatl"  or  "God  Flesh"  in  the  fragmentary 
writings  of  the  ancient  Aztecs  among  whom  it  was  used  since 
time  immemorial  both  as  a  medicine  and  as  a  sacrament.  As 
the  ancient  Persians  founded  a  great  religion,  so  did  the  ancient 
Aztecs.  Their's  today  represents  not  only  one  of  the  oldest 
religious  groups  in  America,  but  one  of  the  most  devout,  the 
Native  American  Church." 

In  1967,  the  State  of  Texas  passed  legislation  prohibiting  the  possession  of  Peyote. 
In  1968,  Judge  Kazen  of  Laredo,  Webb  County,  Texas,  declared  the  Texas  legislation 
unconstitutional  based  on  the  First  Amendment,  religious  freedom  clause  of  the  United 
States  Constitution.  Immediately  thereafter,  in  1969  the  Texas  State  Legislature  passed  an 
exemption  for  the  Native  American  Church  that  continues  in  effect  today. 

Texas  is  the  only  state  which  possesses  an  abundance  of  Peyote.  The  natural  habitat 
of  the  spineless  Peyote  cactus  extends  approximately  30  miles  east  of  Laredo,  Texas,  and 
then  south  to  the  Rio  Grande  River  located  near  the  city  of  Rio  Grande  City,  Texas.  A 
large  abundance  of  Peyote  exists  in  northern  Mexico.  Members  of  the  Native  American 
Church  traditionally  harvest  or  purchase  Peyote  from  licensed  Peyote  dealers  in  south  Texas. 

The  Texas  Department  of  Public  Safety  and  the  Justice  Department  license  Peyote 
dealers  that  may  lawfully  sell  Peyote  to  members  of  the  Native  American  Church  who  have 
appropriate  certificates  of  membership  and  have  permits  to  possess,  harvest,  purchase  and 
transport  Peyote  issued  by  Native  American  Church  custodians  from  Churches  that  are 


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enrolled  with  the  Texas  Department  of  Public  Safety.  The  Texas  Department  of  Public 
Safety  has  promulgated  regulations  that  regulate  the  harvesting,  possession,  purchasing,  and 
transportation  of  Peyote  in  Texas.  Texas  D.P.S.  has  always  enjoyed  a  good  working 
relationship  with  the  various  Native  American  Churches.  According  to  representatives  of 
Texas  D.P.S.  the  administration  of  Peyote  practices  and  regulations  with  the  Native 
American  Church  have  been  "problem  free". 

In  1968,  U.S.  President  Johnson  signed  the  1968  Civil  Rights  Bill  which  contained  6 
Titles  granting  rights  to  American  Indians  which  were  secured  to  all  other  Americans  except 
the  Indians.  The  Act  extended  the  Bill  of  Rights  to  the  reservation  and  provided,  "No 
Indian  tribe  in  exercising  powers  of  self-government  shall  (1)  make  or  enforce  any  law 
prohibiting  the  free  exercise  of  religion.  .  .  ."  Senator  Sam  Ervin,  of  North  Carolina  sitting 
on  the  Senate  Committee  on  the  Judiciary  and  Chairman  of  the  Subcommittee  on 
Constitutional  Rights  requested  various  members  of  the  Native  American  Church  to  testify 
before  the  Subcommittee  regarding  their  need  for  First  Amendment  Constitutional 
protection  regarding  the  religious  use  of  Peyote.  One  important,  specific  reason  why  the 
1968  Civil  Rights  Act  was  passed  was  to  extend  protection  to  the  Native  American  Church. 
The  Native  American  Church  archives  possesses  correspondence  from  Senator  Ervin 
establishing  this  fact. 

In  1970,  Congress  passed  the  Controlled  Substances  Act  of  1970  which  prohibits  the 
possession  and  distribution  without  prescription  of  a  number  of  substances  including  Peyote. 
Peyote  is  classified  as  a  Schedule  1  controlled  substance.  During  hearing  before  the 
Subcommittee  on  Public  Health  and  Welfare  of  the  House  of  Representatives,  91st  Cong. 
2nd  Sess.  117-118,(1970),  Congressman  Satterfield  inquired  regarding  the  Peyote  exemption 
as  follows: 

"I  have  one  other  question.  I  recall  when  we  were 
discussing  dangerous  drugs  a  few  years  ago,  the  question  came 
up  about  the  Native  American  Church  involving  Indians  in  the 
west  who  use  and  have  for  centuries  used  Peyote  in  connection 
with  religious  services.  It  is  my  understanding  that  they  enjoy 
an  exemption  under  the  current  law.  My  question  is  whether 
in  any  of  the  bills  we  have  before  us,  if  passed,  would  in  any 
way  affect  this  present  exemption?" 

The  Director  of  the  Bureau  of  Narcotics  and  Dangerous  Drugs,  Mr.  Sonnenreich, 
replied: 


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"In  the  first  instance,  Mr.  Satterfield,  the  Native  American 
Church  did  ask  us  by  letter  as  to  whether  or  not  the  regulation, 
exempting  them  by  regulation,  would  be  continued  and  we 
assured  them  that  it  would  because  of  the  history  of  the  church. 

We  consider  the  Native  American  Church  to  be  sui  generis. 
The  history  and  tradition  of  the  church  is  such  that  there  is  no 
question  but  that  they  regard  Peyote  as  a  deity  as  it  were,  and 
we'll  continue  the  exemption.  [Note  by  author:  sui  generis  is 
defined  by  Black's  Law  Dictionary  as  a  Latin  term  meaning,  "Of 
its  own  kind  or  class;  i.e.,  the  only  one  of  its  kind;  peculiar." 

Congressman  Satterfield  then  inquired: 

"You  do  not  see  anything  in  the  Senate  bill  that  would  make 
this  impossible?" 

B.N.D.D.  Director  Sonnenreich  responded: 

"No.  Under  the  existing  law  originally  the  Congress  was  going 
to  write  in  a  specific  exemption  but  it  was  then  decided  that  it 
would  be  handled  by  regulation  and  we  intend  to  do  it  the  same 
way  under  this  law." 

Congressman  Satterfield: 

"Thank  you.   I  have  no  other  questions." 

Pursuant  to  the  assurance  delivered  to  Congress  by  drug  enforcement  authorities  the 
Native  American  Church  was  given  an  exemption  pursuant  to  regulations  prorogated  by  the 
B.N.D.D.  The  exemption  continues  today  and  is  found  at  21  C.F.R  §  130731  (1984)  and 
reads: 

The  listing  of  Peyote  as  a  controlled  substance  in  Schedule  1 
does  not  apply  to  the  nondrug  use  of  Peyote  in  bona  fide 
religious  ceremonies  of  the  Native  American  Church,  and 
members  of  the  Native  American  Church  so  using  Peyote  are 
exempt  from  registration.  Any  person  who  manufactures 
Peyote  for  or  distributes  Peyote  to  the  Native  American 


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Church,  however,  is  required  to  obtain  registration  annually  and 
to  comply  with  all  other  requirements  of  law. 

In  1978,  Congress  passed  the  American  Indian  Religious  Freedom  Act,  public  law 
95-341.  The  American  Indian  Religious  Freedom  Act  is  found  at  42  U.S.C.  §  1996.  The 
Act  is  as  follows: 

Protection  and  preservation  of  traditional  religious  of  Native 
Americans 

On  and  After  August  11,  1978,  it  shall  be  the  policy  of  the 
United  States  to  protect  for  American  Indians  their  inherent 
right  of  freedom  to  believe,  express,  and  exercise  the  traditional 
religious  of  the  American  Indian,  Eskimo,  Aleut,  and  Native 
Hawaiians,  including  but  not  limited  to  access  to  sites,  use  and 
possession  of  sacred  objects,  and  the  freedom  to  worship 
through  ceremonials  and  traditional  rites. 

Although  this  statute  expressly  contains  an  important  guarantee  of  religious  freedom 
for  American  Indians  it  has  not  yet  been  interpreted  to  provide  protection  for  the  Native 
American  Church  and  its  sacrament,  Peyote.  By  clear  and  reasonable  interpretation  this 
statute  should  provide  protection  for  the  Native  American  Church. 

In  order  to  make  the  matter  absolutely  beyond  dispute  the  American  Indian 
Religious  Freedom  Act  should  be  amended  to  specifically  include  the  Native  American 
Church's  sacramental  us-  of  Peyote. 

The  United  States  Department  of  the  Interior  has  a  long  standing  practice  of 
supporting  the  Native  American  Church.  In  May  of  1944,  the  Commissioner  of  Indian 
Affairs,  of  the  Department  of  the  Interior  advised  and  encouraged  the  desirability  of  the 
Native  American  Church  formally  organizing  a  national  Native  American  Church 
organization. 

Secretary  of  the  Interior,  Stewart  Udall,  in  February  of  1966,  wrote  John  Gardner, 
Secretary  of  Health,  Education,  and  Welfare,  and  urged  providing  exemptions  for  the  Native 
American  Church  under  the  1965  Drug  Abuse  Control  Amendments,  "[W]hich  is  recognized 
by  the  Bureau  of  Indian  Affairs  as  a  bona  fide  religious  organization." 

Continued  present  day  support  of  the  Native  American  Church  from  the  Department 
of  the  Interior  is  needed.  In  April  of  1990,  the  United  State  Supreme  Court  announced  a 
decision  in  the  case  of  Employment  Division.  Oregon  vs.  Smith  involving  the  use  of  Peyote 


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by  two  members  of  the  Native  American  Church.  The  Supreme  Court  held  the  Free 
Exercise  Clause  of  the  First  Amendment  permits  the  State  of  Oregon,  or  by  implication  any 
other  state  or  the  Government,  to  prohibit  sacramental  Peyote  use.  The  Supreme  Court 
abandoned  the  "compelling  governmental  interest"  test  and  held  that  the  test  is  inapplicable 
in  the  context  of  Peyote  and  criminal  statutes.  Thus,  although  it  is  Constitutionally 
permissible  to  exempt  sacramental  Peyote  use  from  the  operation  of  drug  laws,  it  is  not 
constitutionally  required. 

The  Supreme  Court  in  the  final  paragraphs  of  the  Oregon  vs.  Smith  held  that 
althrough  the  religious-practice  exemption  is  permitted,  and  even  maybe  desirable;  it  is  not 
a  matter  for  the  Courts.  The  exemption  is  left  up  to  the  political  process,  Congress  and  the 
legislatures. 

The  Smith  case  was  an  obscure  and  seemingly  insignificant  case  arising  in  Oregon 
and  involving  a  question  regarding  unemployment  benefits  for  two  individuals  who  had  been 
terminated  from  their  employment  as  drug  abuse  counselors  for  ingesting  Peyote  at  a  Native 
American  Church  service.  The  case  grew  out  of  an  administrative  hearing  that  had  little, 
if  any,  evidentiary  record.  There  were  no  expert  witnesses;  there  was  no  scientific  evidence. 
The  case  was  presented  by  an  understaffed  free  legal  services  clinic  that  had  never 
presented  a  case  to  the  Supreme  Court.  Oregon  has  a  very  small  Native  American  Church 
group  and  traditionally  has  not  been  considered  a  Peyote  state.  The  Oregon  case  sneaked 
in  the  Supreme  Court  without  the  knowledge,  preparation  or  support  of  the  mainstream 
Native  American  Church  groups.  Caught  off  guard  and  unprepared  and  fearing  a  negative 
decision  as  a  result,  the  Native  American  Church  of  North  America  unsuccessfully  attempted 
to  persuade  Al  Smith  to  dismiss  the  appeal. 

The  Native  American  Church  is  a  poor  church.  It  owns  no  property.  Native 
American  people  are  disadvantaged  people.  Their  unemployment  rate,  infant  mortality  rate, 
suicide  rate,  and  poverty  rate  is  substantially  higher  than  that  of  the  average  American. 
Never-the-less,  the  Native  American  Church  could  have  presented  a  much  better 
coordinated  and  historically  and  scientifically  documented  case  if  the  litigation  had  arisen 
in  a  different  set  of  circumstances.  Much  of  the  information  presented  in  this  report  was 
not  contained  in  the  record  of  the  Smith  case  before  the  Supreme  Court. 

At  its  official  inception,  the  Native  American  Church  was  founded  upon  the  premiss 
that  this  ancient  Indian  religion  was  protected  by  the  Free  Exercise  Clause  of  the  First 
Amendment  of  the  United  States  Constitution.  Various  legal  precedents,  some  referred  to 
in  this  paper,  have  consistently  held  that  the  Native  American  Church  enjoyed  First 
Amendment  protection.  Legislation  has  been  passed  based  upon  the  underlying  assumption 


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that  religious  freedom  protection  was  Constitutionally  required  for  the  Native  American 
Church. 

The  Supreme  Court  case  casts  a  shadow  on  the  legal  status  of  the  Native  American 
Church.  Concern  exists  that  a  Drug  Enforcement  Administration  official  could  with  a  pen 
stroke  nullify  the  existing  Native  American  Church  Exemption  at  21  C.F.R.  §  130731. 
Congress  did'  not  include  a  Peyote  exemption  for  the  Native  American  Church  in  the  drug 
statute  based  on  expressed  representations  by  the  BNDD,  predecessor  of  the  DEA  that  the 
drug  enforcement  authorities  would  provide  for  the  exemption  by  regulation.  Legislation 
is  vitally  needed  by  Congress  to  amend  the  Control  Substance  Act  to  specifically  include  the 
present  C.F.R.  exemption  in  the  actual  statute.  The  Native  American  Church  cannot 
reasonably  rely  on  a  regulation;  the  Native  American  Church  needs  a  specific  statutory 
exemption  for  the  sacramental  use  of  Peyote. 

The  shadow  occasioned  by  the  abandoning  of  the  compelling  interest  test  by  the 
Supreme  Court  is  of  concern  to  all  churches.  Oliver  S.  Thomas,  General  Counsel  for  the 
Baptist  Joint  Committee  observed  in  June  1990,  immediately  after  the  Smith  case  that  the 
"Church  leaders  and  their  attorneys  dropped  their  jaws  in  disbelief  as  Supreme  Court  Justice 
Antonin  Scalia,  with  a  stroke  of  his  pen,  transformed  the  nation's  'first  liberty'  into  a 
Constitutional  stepchild."  Thomas  predicted  that  "mainstream"  religions  would  be  impacted 
by  the  decision  which  he  characterized  the  decision  as  "a  dangerous  one  that  has  serious 
implications  for  all  laws  affecting  churches." 

Indeed,  two  days  after  the  Smith  case,  the  case  was  cited  by  the  Supreme  Court  as 
the  rationale  for-vacating  an  order  of  the  Minnesota  Supreme  Court  upholding  the  rights 
of  the  Amish  to  adorn  their  buggies  with  silver  reflector  tape  rather  than  the  orange  signs 
the  state  had  sought  to  force  upon  them.  In  November  of  1990,  in  response  to  the  Smith 
case  a  U.S.  District  Court  in  Rhode  Island  reversed  an  earlier  decision  holding  that  the  state 
of  Rhode  Island  had  no  "compelling  reason"  to  perform  an  autopsy  on  the  son  of  a  Laotian 
couple.  After  Smith  the  Rhode  Island  Court  "with  deep  regret"  was  forced  to  hold  that  the 
free  exercise  clause  did  not  protect  the  right  of  members  of  the  Hmong  faith  to  be  free  from 
autopsies  that  violated  their  deeply  held  religious  beliefs.  The  same  result  was  reached  in 
U.S.  District  Court  in  Michigan  regarding  a  Jewish  woman  after  the  state  performed  an 
autopsy  on  her  son  without  her  consent. 

Practices  accommodated  for  years  without  problems  are  no  longer  safe.  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. 


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In  the  words  of  Justice  Sandra  O'Conner,  "[T]he  First  Amendment  was  enacted 
precisely  to  protect  the  rights  of  those  whose  religious  practices  are  not  shared  by  the 
majority  and  may  be  viewed  with  hostility."  In  response  to  the  Smith  case,  last  summer  and 
fall,  groups  of  Congressmen  and  Senators  led  by  Representative  Steven  Solarz,  D-N.Y. 
introduced  the  Religious  Restoration  Act  in  congress.  The  proposed  statute  reinstates  the 
"compelling  interest"  test  for  free-exercise  claims  against  a  Federal,  State,  or  local 
authority;it  does  not  dictate  the  outcome  of  any  particular  claim.  Congress  lacked  sufficient 
time  to  consider  the  Religious  Freedom  Restoration  Act  before  the  101st  Congress 
adjourned.  The  bill  enjoyed  broad  support  and  will  be  reintroduced  with  more  than  100 
sponsors  in  1991.  By  once  again  requiring  Government  to  justify  restrictions  it  places  on 
religious  practices,  the  Religious  Freedom  Restoration  Act  would  return  the  law  to  where 
it  stood  for  nearly  30  years. 

If  given  the  benefit  of  balancing  the  "compelling  governmental  interest"  against  the 
enforcement  of  Peyote  restrictions  against  the  Native  American  Church,  the  religious 
historical  background,  scientific  evidence  and  practices  of  the  Native  American  Church 
should  tilt  the  balance  substantially  in  favor  of  the  Church.  Indeed,  the  California  Supreme 
Court  in  the  Woody  Case  regarded,  "the  moral  standards  of  members  of  the  Native 
American  Church  as  higher  than  those  of  Indians  outside  the  Church." 

All  Indian  people  call  on  their  Congressman  and  Senators  and  the  United  States 
Department  of  the  Interior  to  support  the  Religious  Freedom  Restoration  Act  on  behalf  of 
the  oldest  religion  existing  on  the  North  American  continent,  the  Native  American  Church. 

Althoughahe  proposed  Religious  Freedom  Restoration  Act  is  helpful  and  its  passage 
is  supported  by  the  Native  American  Church,  the  Act  does  not  go  far  enough.  The  Native 
American  Church  needs  a  specific  statutory  exemption  for  the  sacrament  Peyote. 


In  order  to  provide  the  Native  American  Church  with  the  specific  statutory  protection 
that  it  needs  to  protect  its  sacrament,  Peyote,  three  (3)  alternatives  are  possible: 

1.)  The  Religious  Freedom  Restoration  Act  should  be  redrafted  to  dictate  the 
outcome  of  the  Peyote  exemption  for  the  Native  American  Church  after 
Congressional  hearings  where  historical,  religious,  sociological  and  scientific 
evidence  can  be  presented  to  demonstrate  to  Congress  that  the  continuation 
of  the  Native  American  Church  exemption  is  desirable  and  important. 


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2.)        The  Native  American  Religious  Freedom  Act  can  be  amended  to  specifically 
incorporate  the  existing  C.F.R.  exemption  after  appropriate  hearings. 

3.)        The  Controlled  Substance  Act,  Title  21  §  841  can  be  amended  to  specifically 
incorporate  the  existing  C.F.R.  exemption  after  appropriate  hearings. 


305 


Mililani  B.  Trask,  Kia'aina 

Ka  Lahui  Hawai'i 

152  B  Koula  Street 

Hilo,  HI  96720 

February  3, 1993 

To:       Representative  Bill  Richardson 

Chair,  Sub-Committee  Native  American  Affairs 
1522  Longworth  Bldg. 
Washington,  D.C.  20515 

TESTIMONY  OF  KA  LAHUI  HAWAII  REGARDING 

THE  TOINT  RESOLUTION  AMERICAN 

INDIAN  RELIGIOUS  FREEDOM  ACT  (AIRFA)  OF  1993 

Aloha  Members  of  the  House  of  Representatives: 

This  testimony  is  submitted  in  behalf  of  the  16,000  enrolled  citizens  of  Ka 
Lahui  Hawaii,  a  native  Hawaiian  initiative  for  self-governance.  Several  of  our 
citizens  have  been  arrested  engaging  in  religious  practice  or  acts  of  civil  disobedience 
undertaken  to  protect  traditional  religious  sites.  In  light  of  the  Lyng  case  and  the 
subsequent  ruling  of  the  U.S.  Supreme  Court  in  the  Smith  case,  there  has  been  a 
substantial  erosion  of  native  rights  to  worship,  protected  by  the  First  Amendment  of 
the  U.S.  Constitution.  Consequently,  we  welcome  and  support  the  proposed 
amendments  to  AIRFA  with  the  following  additions  and  changes. 

New  language  proposed: 

1.  Title  I,  Section  101  (6)  -  line  21  -  The  term: 

Indians"  should  be  deleted  and  the  term  "Native  Americans"  should  be  used. 

lustification:  The  provision  refers  to  the  fact  that  many  religious  sites 

were  part  of  the  original  territory  of  Indians  but  are  now  held  by  the  U.S.  This 
is  also  true  of  the  aboriginal  lands  of  Hawaiian  people.  The  substitution  of 
the  term  "Native  American"  for  "Indian"  makes  the  provision  applicable  to 
Hawaiians. 

2.  Title  I,  Section  102  -  Notice: 

A  new  section  (b)  should  be  added  which  states 


"(b)      The  government  agency  involved  shall  also  publish  notice  of 
the  proposed  undertaking  in  a  newspaper  of  general  circulation  for  four 
consecutive  weeks." 


306 


Justification:  The  Federal  Agency  involved  may  not  know  who  to 

contact  and  may  not  know  whether  any  Native  Hawaiian  organization 
(ohana)  may  consider  a  site  to  have  religious  importance.  In  order  to 
maximize  the  opportunity  for  interested  parties  to  be  informed  in  a  timely 
manner,  notice  should  be  published. 

Title  I  -  Protection  of  Sacred  Sites: 

The  bill  as  drafted  anticipates  that  the  Federal  agency  will  know  that 
sites  will  be  impacted  before  it  begins  its  undertaking.  This  may  not  be  the 
case.  If  a  Federal  agency  commences  and  undertaking  and  later  sites  are 
discovered,  the  activity  should  be  halted  until  proper  notice  is  sent  and 
consultation  (Section  102  &  103)  occurs. 

A  new  section  needs  to  be  added  to  Title  I  to  cover  this  situation. 

With  these  added  changes  we  believe  the  AIRFA  Amendments  will  provide 
adequate  protection  for  native  rights  to  worship  and  the  protection  of  native 
sacred  sites. 

Sincerely, 
\ 


^ 


V  _.    \    \.-  ^1 


MILILANI  B.  TRASK 
KIA'AINA,  KA  LAHUI  HAWAI'I 


cc:        Island  Po'o 
Executive 
Ali'i  Nui 
Denise 


307 


UNITED  STATES  HOUSE  COMMITTEE 
ON  NATURAL  RESOURCES 


THE  NATIVE  AFFAIRS  SUB-COMMITTEE 


WRITTEN  TESTIMONY  OF 

DAVID  S.  CLARK 

ON 

TRADITIONAL  USE  OF  PEYOTE  IN 

NATIVE  AMERICAN  CHURCH 


SUPPORTING  THE 

PROPOSED  AMENDMENTS  TO 

AMERICAN  INDIAN  RELIGIOUS  FREEDOM  ACT  OF  1987 


308 


Mr.  Chairman  and  Members  of  the  Committee,  my  name  is  David 
Clark  and  I  am  from  Teesto,  Arizona,  on  the  Navajo  Reservation.  My 
father  has  been  a  well  known  peyote  practitioner  for  about  forty  (40) 
years  in  our  area.  I.  myself,  am  a  Native  American  Church  practitioner 
as  was  my  father. 

I  am  pleased  to  have  this  opportunity  to  submit  my  testimony  to 
you  on  the  proposed  amendments  to  the  American  Indian  Religious 
Freedom  Act  of  1978. 

I  would  like  to  begin  by  giving  you  a  brief  explanation  of  the 
Native  American  Church  and  our  use  of  peyote.  Peyote  is  the  central 
part  of  our  Native  American  Church  religion.  Without  peyote,  we 
would  not  have  a  complete  and  genuine  Native  American  religious 
church  ceremony. 

In  some  situations,  the  Native  American  Church  ceremony 
combines  certain  elements  of  Christianity  with  traditional  Native 
American  beliefs.  Although  the  religious  use  of  peyote  has  existed 
among  our  people  long  before  Columbus  came  to  this  country,  the 
Native  American  Church  was  formally  established  in  Oklahoma  in 
1918.  James  Mooney,  an  ethnologist  with  Smithsonian  Institution's 
Bureau  of  American  Ethnology  spent  many  years  with  the  Plains  Tribes 
in  Oklahoma  and  eventually  assisted  the  Indians  in  filing  for  a  charter 
with  the  Oklahoma  Secretary  of  State.  At  that  time,  the  leaders  of  the 
Native  American  Church  believed  that  by  creating  a  formal  church-like 
structure,  they  would  be  entitled  to  greater  protection  in  the  exercise 
of  their  religion. 

Unlike  traditional  Christian  religion,  which  have  sacramental 
symbols  like  bread  and  wine,  peyote  is  more  than  a  sacrament  to  those 
of  us  in  the  Native  American  Church. 

Peyote  as  it  is  consumed  in  a  religious  church  meeting  is 
regarded  as  the  most  sacred  and  divine  spiritual  power.  It  is  a  guide 
and  gives  direction  comparable  to  the  Holy  Bible.  The  spiritual  powers 
of  peyote  heals  and  produces  the  right  and  true  psychological  state  of 
mind.     Peyote  brings  out  the  truth  in  a  person  and  guides  one  to 


309 


distinguish  between  right  and  wrong  in  human  behavior.  It  establishes 
the  mental,  spiritual  and  psychological  balance  of  a  human  life  to 
harmonize  with  nature. 

We  know  that  under  the  influence,  the  human  conscience  is 
awaken  to  the  highest  level  to  understand  nature  as  it  actually  is.  It 
re-enforces  the  ability  of  human  mind  to  spiritually  get  in  tune  with 
mother  nature  and  universe  as  it  is  the  bases  for  all  life  form. 

Peyote  provides  and  instills  in  a  human  life  that  one  sees  one  self 
as  a  child  and  becomes  humble  to  God  the  Great  Spirit.  That 
everything  that  grows  is  a  living  life  in  various  forms,  that  there  is  a 
purpose  in  every  life  and  there  is  order  in  the  spiritual  life  of  which 
we  are  a  part  of. 

Our  traditional  Navajo  medicine  man  have  informed  us,  and  we 
know  that  in  the  beginning  of  time,  the  Great  Spirit  made  various 
plants  and  herbs.  Earthly  plants  and  herbs  are  used  in  very  special 
ways  in  our  traditional  religious  ceremonies.  These  particular  herbs 
consumed  by  patients  especially  in  "the  Life  Way"  ceremonies  are 
stronger  than  peyote.  Each  herb  used  has  a  spiritual  and  sacred  name, 
hence  herbs  may  not  be  used  openly  by  anyone  and  their  names  cannot 
be  mentioned  just  anytime.  Offerings  of  either  corn  pollen  or  sacred 
stones  are  given  for  their  spiritual  power  and  blessing  by  bonafide 
medicine  man.  Consequently,  peyote  can  only  be  harvested  through  a 
religious  pilgrimage  to  Texas  where  peyote  grows.  When  one  decides 
to  harvest  and  procure  peyote,  one  does  not  leave  without  any  religious 
ceremonies.  It  is  most  sacred  to  travel  to  peyote  garden  and  where 
peyote  sacrament  grows,  the  land  is  considered  sacred  and  highly 
respected. 

At  the  garden,  before  harvesting  peyote,  one  must  make  an 
offering  of  mountain  tobacco,  corn  pollen,  or  sacred  stones,  to  the 
Mother  Earth  in  thanksgiving  and  spiritual  blessing  of  the  sacrament 
peyote. 


310 


The  studies  of  scientific  facts  has  long  been  established  by  well 
known  doctors  from  various  schools  of  thought;  the  historians  and 
anthropologists,  including  Western  LaBarre,  Ph.D.,  David  McAllester, 
Ph.D.,  J.S.  Slokin,  Ph.D.,  Omer  C.  Stewart,  Ph.D.,  Sol  Tax,  Ph.D.,  David 
F.  Aberle,  Ph.D.,  and  Jay  C.  Fikes,  Ph.D.,  have  concluded  that  the  use  of 
peyote  by  American  Indians  in  their  religious  ceremonies  predates  the 
written  history  of  this  country.  The  use  of  peyote  in  the  religious 
practices  of  Native  American  Church  is  a  legitimate  religion  and 
should  not  be  harmed  and  be  denied  to  the  Native  Americans. 

In  their  studies  and  research  of  the  well  known  psychiatrists; 
Karl  A.  Menninger,  M.D.,  Abe  Hoffer,  M.D.,  Robert  L.  Bergman,  M.D., 
and  Bernard  C.  Gorton,  M.D.,  have  determined  that  human 
consumption  of  peyote  will  not  have  any  detrimental  affect  mentally  or 
physically.  They  have  concluded  that  there  is  a  great  deal  of  positive 
benefits  the  American  Indians  do  receive  from  this  ancient  medicine. 
The  findings  are  that  self  respect,  self  reliance,  obedience  and 
sobriety  is  received  and  the  enjoyment  of  life  is  truly  obtained  from 
the  use  of  peyote  in  their  religious  practices. 

Dr.  Maurice  H.  Seevers  (1958)  who  is  one  of  the  leading 
pharmacologists  in  this  country  has  done  an  extensive  studies 
research  and  analysis  and  has  concluded  that  the  consumption  of 
peyote  by  an  individual  was  safe.  The  peyote  is  not  habit  forming  and 
certainly  not  a  narcotic.  His  laboratory  experiments  proved  that 
peyote  was  harmless  and  the  use  of  alcohol  was  more  addicting  and 
dangerous  to  the  health  than  the  latter. 

The  Native  American  Indian  elderlies,  our  forefathers,  our 
ancestors,  and  long  time  members  of  Native  American  Church,  have 
testified  that  they  have  witnessed  that  peyote  does  possess  a  unique 
spiritual  healing  power.  We  realize  and  do  acknowledge  many  benefits 
from  the  use  of  peyote  as  a  divine  sacrament  including  healing  the  sick 
--  psychologically  and  physiologically.  God  is  the  only  one  that  knows 
and  he  created  peyote  along  with  other  herbs  to  be  consumed  by  the 
Indian  people  in  their  religious  ceremonies.    Native  American  Indians 


311 


who  use  peyote  know  and  understand  that  it  does  possess  spiritual 
healing  powers. 

In  this  day  and  age.  in  America,  we  are  confound  by  liquor  and 
alcohol.  It  is  commonplace  for  use  of  alcohol,  a  habit  forming  and 
dangerous  chemical  substance.  Thousands  of  deaths  are  related  to  use 
of  alcohol.  It  is  the  number  one  killer  of  people.  Every  minute  in 
America,  a  life  is  lost  because  of  a  drunk  driver,  one  of  many  incidents 
that  are  related  to  death  by  use  of  alcohol.  Alcohol  and  all  its  negative 
ramifications  has  been  protraged  by  the  media  to  serve  as  a  medical 
resolution. 

You  will  note  that  my  affiliation  with  the  use  of  peyote  in  Native 
American  Church  is  quiet  extensive  and  my  experience  in  some  court 
litigation  on  the  use  of  peyote  does  qualify  me  to  some  degree  as  an 
authority  in  dealing  with  peyote  issues. 

I  have  an  attachment  to  my  statement  an  Exhibit  "A"  about  my 
involvement  with  Native  American  Church  to  demonstrate  the  many 
obstacles  which  we  have  had  to  overcome  in  our  struggle  for  the 
federal  government  to  recognize  our  First  Amendment  Rights  to  the 
free  exercise  of  religion.  As  I  look  back  over  the  long  difficult  years  of 
this  struggle,  I  asked  myself  "Why  is  this  so".  "Why  are  Indian  people 
treated  differently  than  the  non-Indians?"  I  asked  myself  "Why". 
When  the  White  Man  says  that  his  religion  is  sacred,  everyone  accepts 
that  and  believes  him.  But  when  an  Indian  says  that  his  religion,  the 
peyote  and  ceremonies  are  sacred,  the  Courts  and  Congress  does  not 
believe  him.  The  Courts  and  Congress  always  want  to  know  why  the 
peyote  is  sacred.  They  always  want  to  know  how  our  religion  is 
practiced.  They  want  to  dissect,  analyze,  and  study  our  Indian 
religion.  Now  after  all  these  years,  we  learned  that  we  must  again 
struggle  to  overcome  obstacles  which  are  not  inflicted  upon  non- 
Indians. 

The  use  of  peyote  for  religious  purposes  are  allowed  on  the 
Navajo  Nation.    In  the  State  of  Arizona,  the  state  law  also  allows  for  the 


312 


use  of  peyote  for  religious  purposes.  Arizona  revised  statutes,  Section 
13-3402,  makes  it  a  crime  for  anyone  to  possess,  sell,  transfer  or  offer 
to  sell  or  transport  peyote.  At  the  same  time,  that  same  state  law 
allows  a  person  to  use  peyote  as  long  as  it  is  in  connection  with  a  bona 
fide  practice  of  a  religious  belief.  While  the  Navajo  Nation  and  the 
State  of  Arizona  recognize  our  religion,  most  of  the  states  in  this 
country  do  not.  For  those  of  us  who  are  members  of  the  Native 
American  Church,  we  can  still  be  arrested  and  jailed  in  most  states  in 
this  country  simply  for  performing  our  religion.  This  is  true  even 
though  the  Federal  Drug  Enforcement  Administration  (DEA)  itself  has 
created  a  regulation  which  allows  for  the  religious  use  of  peyote.  The 
21  Code  of  Federal  Regulations  (CFR)  Section  1307.31  says: 

"The  listing  of  peyote  as  a  controlled  substance  (under  federal 
law)  does  not  apply  to  the  non-drug  use  of  peyote  in  a  bona  fide 
religious  ceremonies  of  the  Native  American  Church,  and  members  of 
the  Native  American  Church  so  using  peyote  are  exempted  from 
registration." 

There  is  a  unique  legal  and  political  relationship  established 
between  the  Federal  Government  and  Native  American  Church 
members.  The  Drug  Abuse  Control  Act  of  1965  listed  peyote  as  a 
controlled  substance.  This  Federal  exemption  recognized  the  use  of 
peyote  as  a  sacrament  in  the  Bona  fide  ceremonies  of  Native  American 
Church  (21  CFR  SSI 307).  This  cooperative  relationship  has  been 
respected  ensuring  that  peyote  is  lawfully  harvested  and  distributed 
for  Native  American  religious  use.  This  important  relationship  is 
enjoyed  by  both  and  it  continues  to  the  present  day. 

In  1967,  the  State  of  Texas  completely  outlawed  the  use  of 
peyote.  Texas  is  the  only  state  in  the  United  States  where  peyote 
grows  plentiful.  On  April  26,  1968,  Judge  Kazen  of  Laredo,  Texas 
declared  the  Texas  legislation  unconstitutional  based  on  Religious 
Freedom  of  the  United  States  Constitution. 

In  1969,  the  Texas  legislatures  enacted  an  exemption  for  Native 
American  Church  recognizing  their  use  of  peyote  as  a  sacrament  in 


313 


their  religious  services.  Since  this  enactment,  the  Texas  Department 
of  Public  Safety  has  incorporated  in  their  regulations,  clear  provisions 
as  to  who  has  the  right  to  harvest,  transport,  sell  and  use  peyote. 

The  Native  American  Churches  across  the  country  are  required 
to  enroll  with  the  Department  of  Public  Safety  in  the  State.  The  Texas 
Department  of  Public  Safety  and  the  Justice  Department  recognizes 
and  requires  all  peyote  dealers  to  be  license  authorizing  them  to 
harvest  and  sell  to  Native  American  Church  members  who  have 
appropriate  membership  authorization  and  hauling  permit  to  harvest, 
possess,  transport  and  use  peyote. 

The  major  Native  American  Church  organizations  have  an  annual 
meeting  with  the  Texas  Department  of  Public  Safety  officials  to  discuss 
any  major  or  minor  problems  surrounding  the  implementation  of  the 
regulations  or  any  issues  requiring  immediate  attention. 

The  Texas  Department  of  Public  Safety  has  established  a  very 
good  cooperative  working  relationship  enjoyed  by  all  concerned. 
Obviously,  this  implementation  of  Texas  substance  control  regulation  is 
an  assurance  to  the  use  of  peyote  for  religious  use  of  Native  Americans 
is  not  abused.  According  to  Texas  Department  of  Public  Safety  officials 
is  that  this  working  relationship  has  been  "problem  free"  to  date. 

Despite  the  fact  that  several  states  and  the  Federal  Drug 
Enforcement  Agency  recognized  our  rights  to  possess  and  use  peyote, 
we,  as  Native  Americans,  still  find  that  we  have  no  real  protection 
under  the  U.S.  Constitution.  This  sad  fact  became  clear  in  1990.  when 
the  United  States  Supreme  Court  issued  its  decision  in  the  Oregon  vs. 
Smith  case.  In  Smith,  the  Supreme  Court  ignored  long  standing  legal 
precedent  and  created  an  enormous  exemption  to  the  First 
Amendment  for  all  criminal  statutes  and  civil  statutes  or  regulations  as 
long  as  they  were  not  expressly  hostile  to  religion.  It  is  our 
understanding  that  the  Supreme  Court  ruled  in  Smith  that  a  state  such 
as  Arizona  can  pass  any  law  it  wishes,  which  outlaws  the  use  of  peyote 
so  long  as  they  are  doing  it  for  non-religious  reasons.    In  Smith,  the 


314 


Supreme  Court,  in  the  name  of  the  war  on  drugs,  ruled  it  was  all  right 
to  deny  First  Amendment  protection  to  Native  Americans  who  use 
peyote  only  for  religious  purposes.  The  United  States  Supreme  Court 
ruled  in  Smith  that  protecting  Native  Americans  and  religion  was 
"luxury"  that  this  country  can  no  longer  afford. 

The  Smith  case  was  in  many  Native  American  Church  members 
opinion,  an  obscure  and  unfavorable  case.  Majority  of  Native  American 
Church  members  across  the  country  deeply  regret  that  this  case  was 
tried  at  a  time  and  the  way  it  did.  The  Court  proceeding  over  passed 
Native  American  Church  experts,  crucial  evidences  and  expert 
witnesses.  The  State  of  Oregon  has  very  little  traditional  Native 
American  Church  members.  The  mainstream  Native  American  Church 
people  were  caught  off  guard  and  unprepared.  This  case  would  have 
been  litigated  better  under  a  different  set  of  circumstances.  In  this 
Supreme  Court  decision,  the  Court  abandoned  the  "compelling 
governmental  interest"  test  that  is  of  great  concern  to  all  religious 
churches.  The  court  decision  undermined  the  fundamental  religious 
freedom,  guaranteed  to  all  citizens  under  the  United  States 
Constitution. 

Discrimination  against  Native  Americans  and  our  traditional 
religion  is  a  problem  we  have,  since  the  arrival  of  Columbus  on  this 
Continent.  It  is  difficult  for  me  to  understand  how  500  years  later 
Native  American  Indians  are  continuing  to  be  discriminated  against. 
How,  in  1993,  can  the  United  States  government  continue  to  deny  us 
the  equal  protection  of  the  Constitution,  especially  the  freedom  of 
expression  and  religion  upon  which  this  government  is  built  on.  The 
time  has  come  for  the  United  States  government  to  begin  rectifying 
injustices  of  the  past.  Many  of  us  have  struggled  for  so  long  trying  to 
protect  our  fundamental  rights.  We  thought  we  finally  achieved 
equality  with  non-Indian  religion  and  we  wake  up  to  find  the  Smith 
decision  of  the  United  States  Supreme  Court.  So  now  we  must  pick 
up  where  we  left  off  and  began  the  struggle  again  for  justice  and 
equality.  It  is  most  frustrating  when  we  could  be  enjoying  the  fruits  of 
the  Constitution  like  any  citizen. 


315 


Statistically,  28  states  have  laws  protecting  Native  American 
Church  to  use  peyote  as  a  sacrament  and  the  rest  of  the  states  either 
have  laws  against  or  no  law  at  all  to  protect  the  use  of  the  peyote  by 
Native  Americans. 

There  is  a  great  deal  of  inconsistency  existing  among  the  states. 
The  current  administrative  policy  is  virtually  inadequate  as  indicated 
by  the  Smith  decision.  The  present  policy  (AIRFA)  lacks  any  type  of 
legal  recourse  and  enforcement  mechanism  for  protection  of  Native 
Americans  to  use  peyote  in  the  religious  ceremonies.  The  Native 
American  Church  needs  a  specific  statutory  exemption  for  the  peyote 
sacrament.  Native  American  Church  members  does  support  the 
amendments  to  AIRFA  to  specifically  incorporate  a  statutory 
exemption  to  provide  a  uniform  protection  across  these  United  States. 

I,  and  the  Native  American  Church  members,  do  strongly 
support  the  amendments  to  the  American  Indian  Religious  Freedom 
Act  and  to  include  the  restoration  of  the  "compelling  governmental 
interest"  test  in  the  court  proceeding  in  this  country  to  protect  the 
religious  guarantees  of  the  United  States  Constitution  for  every  citizen 
of  this  Nation. 

Chairman  and  Committee  Members,  I  thank  you  for  all  the  work 
that  you  have  devoted  to  our  struggle  and  I  pray  that  we  will  continue 
to  work  together  until  we  are  successful  in  this  effort.  May  the  Great 
Spirit  be  with  you. 

Respectfully  submitted  this  26thday  of  March       .  1993. 


David  S.  Clark 


316 
BIBLIOGRAPHY 


Aberle,  D.F.   The  Pevote  Religion  Among  the  Navaio. 
Chicago:  Aldine  Publishing  Co.,  1966. 

Anderson,  Edward  F.     Pevote:  The  Divine  Cactus. 
Tucson  University  of  Arizona  Press,  1980. 


LaBarre,  Weston.   The  Pevote  Cult.     Hamden, 

Connecticut,  Shoe  String  Press,  1964,  1959. 


Menninger,  Karl  A.   The  Vital  Balance:  The  Life  Process  in 
Mental  Health  and  Illness. 
New  York,  Viking  Press,  1963. 


Mooney,  James.  The  Ghost  Dance  Religion  and  the  Sioux 
Outbreak  of  1890.  Washington  Government  Printing 
1896,  Glorieta,  N.M.  Grande  Press,  1973. 


Osmond,  Humphry,  joint  author  by  Hoffer,  Abe.    New  Hope 
for  Alcoholics  and  How  to  Live  with  Schizophrenia. 
New  Hyde  Park,  N.Y.,  University  Books,  1966,  1968. 


Slokin,  J.S.,     The  Pevote  Religion.    Glencoe,  Illinois, 
Free  Press,  1956. 


Stewart,  Omer  C.     Navajo  and  Ute  Peyotism.   Boulder, 
University  of  Colorado  Press,  1957. 


317 


Exhibit  "A" 


MY  INVOLVEMENT  WITH  THE  NATIVE  AMERICAN  CHURCH 

by 

David  S.  Clark 


This  is  a  brief  overview  on  my  participation  in  major  events  which  has 
resulted  in  the  legalization  of  peyote  as  a  sacrament  on  the  Navajo  Indian 
Reservation  and  several  other  States. 

I  have  used  the  sacrament  in  the  Native  American  Church  since 
childhood.  I  am  now  fifty  seven  years  old.  and  my  parents.  Jack  and  Marie 
Clark  have  been  Peyote  Yana-halihe  (traditional  practitioners)  for  the  past 
fifty  years.  My  beloved  father  passed  away  recently.  I  was  oriented  and 
reared  through  the  traditional  teachings  of  the  principles;  values,  and  beliefs 
of  the  Native  American  Church. 

My  first  involvement  with  the  church  issue  was  at  an  early  age.  In  the 
summer  of  1955,  just  fresh  out  of  high  school,  an  incident  took  place  at  my 
parent's  resident.  A  Native  American  Church  prayer  service  was  in  progress 
on  behalf  of  my  parents.  The  Navajo  Police  came  carrying  a  number  of 
armed  Police  Officers.  They  disrupted  the  ceremony  by  force,  during  the 
forceful  intervention  by  the  police,  an  argument  erupted,  resulting  into  a 
physical  fight.  There  were  women  and  children  participating  in  the  services 
at  the  time.  We  voluntarily  stopped  fighting  for  the  safely  and  concern  for 
the  women  and  children. 

We  were  all  arrested  including  the  children  and  were  taken  to  jail  for 
prosecution.  During  those  years  the  Judges  showed  no  mercy  whatsoever 
towards  any  violators  of  the  Navajo  Tribal  law  which  prohibited  the  religious 
use  of  peyote.  This  particular  anti-Peyote  Code  was  established  by  the  Navajo 
Tribal  Council  in  1940.  with  the  support  of  the  Bureau  of  Indian  Affairs  and 
Christian  Missionaries. 

The  Judge  sentenced  virtually  everyone  to  the  fullest  extent  of  the  law, 
however,  a  few  of  us  were  released  on  probation.  This  gave  us  the  time  to 
seek   legal   representation,    and  we   hired   two   attorneys   from   Flagstaff, 


318 


Arizona.  This  incident  was  the  beginning  of  the  nationwide  legal  fight  for 
the  legalization  of  the  religious  use  of  peyote. 

Mr.  Frank  Takesgun,  a  Crow  Indian  from  Montana,  was  the  newly 
elected  National  President  of  Native  American  Church  of  North  America. 
Mr.  Hola  Tso.  a  Navajo  was  elected  as  the  Vice-President;  Mr.  Tales  Romero, 
a  Taos  Indian  from  New  Mexico  as  Secretary;  and  Mr.  Ruben  DeRoan  of 
Oklahoma,  as  Treasurer  (who  died  a  year  later).  Mr.  Anson  Damon,  Sr.,  a 
Navajo  was  appointed  to  replace  Mr.  DeRoan. 

This  historic  incident  captured  the  attention  of  the  Navajo  general 
public  and  more  importantly,  the  national  Native  American  Church  leaders. 
As  a  result,  a  meeting  was  arranged  to  be  held  in  Flagstaff,  Arizona.  Prior  to 
this  meeting,  the  newly  elected  Native  American  Church  leaders  met  with 
our  attorneys.  After  some  discussion,  an  agreement  was  made  to  unite  and 
fight  towards  the  legalization  of  peyote  for  religious  purposes  on  the  Navajo 
Reservation,  and  in  States  where  existing  anti-peyote  laws  had  been  enacted. 

Mr.  Frank  Takesgun  temporarily  set  up  the  Nation  Headquarters  in 
Albuquerque,  New  Mexico,  while  the  plans  for  amending  Navajo  and  other 
anti-peyote  laws  were  being  formulated. 

I  am  grateful  for  being  at  the  right  place  and  at  the  right  time  to  play 
an  important  role  in  preserving  the  rights  of  Native  Americans  to  worship  as 
they  see  fit. 

The  following  are  some  of  the  events  of  which  I  was  involved.  Through 
out  those  years  in  our  struggle  to  preserve  peyote  for  our  religious 
sacrament.  I  translated  for  the  non-English  speaking  Navajos  and  Mr. 
Takesgun. 

1.  In  1958,  with  consistency  and  continuing  persistence  of  Mr. 
Takesgun  in  his  attempt  to  legalize  the  use  of  peyote  in  New  Mexico,  he 
made  friends  with  Governor  John  Burrough.  Governor  Burrough  not  only 
became  a  good  friend  of  the  Native  American  Church,  but  was  also 
sympathetic  to  Indian  causes.  He  supported  legislation  amending  the  anti- 
peyote  law  in  his  state.  In  those  struggling  years,  I  participated  in  lobbying 
efforts  to  reverse  the  law  prohibiting  peyote. 

2.  In  1959,  Mr.  Takesgun  filed  a  lawsuit  against  the  Navajo  Tribal 
Council  in  the  Federal  District  Court  in  Albuquerque,  New  Mexico.  This  was 
the  Native  American  Church  vs  Navaio  Tribal  Council  case,  which  asserted 
the  denial  of  First  Amendment  rights  under  the  United  States  Constitution. 


319 


The  case  was  denied  by  the  Court  due  to  lack  of  jurisdictional  because  of 
Navajo  Tribal  Sovereignty  at  the  time.  This  was  an  attempt  to  force 
amendments  of  the  Navajo  Tribal  law  which  prohibited  religious  use  of 
peyote. 

3.  During  the  year  of  1960,  in  the  case  of  Mary  Attakai  vs  Arizona.  I 
interpreted  for  Mrs.  Attakai  during  the  Court  proceedings.  I  assisted  Mr. 
Takesgun  and  the  attorney  in  building  the  case,  interpreting  and  in 
explaining  the  laws  and  court  procedures  to  Mrs.  Attakai.  In  Mr.  Takesgun' s 
meetings  with  Navajo  church  members  regarding  this  case,  I  interpreted 
and  explained  the  court  proceedings  to  them.  This  case  is  now  widely 
regarded  as  one  of  the  historic  landmark  cases  of  the  Native  American 
Church. 

4.  In  1962,  I  also  served  as  an  interpreter  for  Mr.  Takesgun  in  the 
James  Oliver  vs  Udall  litigation  in  the  10th  Circuit  Court  of  Appeals  in 
Denver,  Colorado.  I  assisted  in  filing  the  necessary  legal  forms  for  Mr.  Oliver 
in  this  proceedings.  Mr.  Oliver  at  the  time  was  a  member  of  the  Navajo 
Tribal  Council.  He  was  a  traditional  Navajo  Medicineman  and  Peyote  Yana- 
halihe  (practitioner)  in  the  church.  Again,  the  court  ruled  against  the 
church  due  to  the  fact  that  Navajos  were  a  Sovereign  Nation  and  that  no 
State  or  Government  had  the  authority  to  interfere  with  their  governmental 
decisions  on  procedures.  The  three-Judge  Court  also  informed  the  church 
that  the  United  States  Constitution  did  not  apply  on  the  Navajo  reservation 
and  that  this  was  a  political  decision  to  be  made  by  the  Navajo  Tribal  Council. 
From  this  Court  decision,  it  was  realized  that  the  Navajo  issue  on  peyote  was 
an  internal  affair,  and  that  the  Native  American  Church  of  North  American  as 
a  non-Navajo  organization  was  not  recognized  by  our  Tribal  Council. 
Therefore,  the  Native  American  Church  of  Navajoland  was  established. 

5.  In  1964,  in  the  People  vs  Woody  case,  which  was  heard  in  the 
California  Supreme  Court.  I  assisted  our  national  President.  Mr.  Takesgun. 
This  particular  case  also  became  one  of  the  landmark  decisions  favoring  the 
Native  American  Church  in  its  battle  to  legalize  peyote. 

6.  In  1965,  the  Navajo  people  were  involved  in  assisting  Mr. 
Takesgun  in  having  the  sacrament  peyote  recognized  and  approved  by  the 
Federal  Food  and  Drug  Administration  in  Washington,  D.C.  The  Food  and 
Drug  Administration  provided  an  exemption  for  the  bonafide  religious  use  of 
peyote  by  American  Indians  in  Native  American  Church  ceremonies.     Mr. 


320 


Takesgun  maintained  a  close  communication  with  Congressional  leaders  and 
Washington  officials  to  establish  the  cooperative  working  relationship. 

7.  During  the  years  1964-65,  I  toured  the  Navajo  Reservation 
organizing  to  communities  in  establishing  the  Native  American  Church  of 
Navajoland  (NACNL).  It  required  multiple  visits  to  these  communities  to 
explain  the  legal  need  for.  and  purpose  of  a  constitution  and  governing  By- 
laws for  this  proposed  church  organization.  These  documents  were 
subsequently  approved  by  the  members  which  authorized  the  official 
establishment  of  the  Native  American  Church  of  Navajoland. 

8.  On  June  11.  1966.  the  Native  American  Church  of  Navajoland 
members  approved  the  Constitution  and  By-laws.  I  was  elected  as  its  first 
President,  and  served  eight  years  in  this  capacity.  During  those  years,  we 
closely  cooperated  with  the  Native  American  Church  of  North  America.  I  am 
happy  and  thankful  to  God  for  my  role  in  the  establishment  of  the  Native 
American  Church  of  Navajoland. 

9.  Between  1966-68,  we  continued  in  our  efforts  to  incorporate 
the  Native  American  Church  in  the  states  of  Arizona.  New  Mexico.  Utah  and 
Texas.    The  Native  American  Church  established  a  good  working  relationship 

with  these  states. 

10.  After  the  10th  Circuit  Court  decision  was  rendered  in  Denver. 
Colorado,  the  Native  American  Church  of  Navajoland  undertook  the  strategy 
of  electing  members  of  the  Church  to  the  Navajo  Tribal  Council.  This 
decision  was  made  because  the  Native  American  Church  of  Navajoland  was  at 
the  mercy  of  the  Tribal  Council.  The  solution  to  legalize  peyote  was  to 
amend  the  Navajo  law.  At  that  time,  the  Navajo  Nation  did  not  have  a  Bill  of 
Rights.  The  rights  guaranteed  under  the  Constitution  of  the  United  States 
did  not  apply  on  the  reservation  and  the  Federal  Courts  also  did  not  have  any 
jurisdiction  on  the  reservation.  Therefore,  the  only  recourse  available  to  the 
Native  American  Church  of  Navajoland  was  to  gain  political  strength  by 
electing  church  members  to  the  Tribal  Council.  We  diligently  campaigned 
to  elect  Native  American  Church  members  to  the  Tribal  Council.  These 
efforts  resulted  in  the  successful  election  of  one  half  of  the  Navajo  Tribal 
Council  who  were  Native  American  Church  members. 

11.  On  October  11.  1967,  the  Tribal  Council  approved  the 
amendments  of  the  Navajo  anti-peyote  code  by  which  the  religious  use  of 
Peyote  was  legalized  for  members  of  Native  American  Church.    This  outcome 


321 


was  made  possible  by  the  active  participation  in  the  Navajo  political  arena 
which  led  to  the  successful  amendment  of  the  Navajo  Tribal  Code. 

12.  In  1968.  I  was  arrested  for  possession  of  peyote  in  the  State  of 
Texas.  At  that  time,  the  Texas  legislature  had  adopted  laws  which 
prohibited  harvesting,  possessing,  transporting  and  sale  of  peyote.  This 
Texas  case  was  also  important  because  Texas  is  the  only  State  where  the 
peyote  plant  grows.  This  was  an  "arranged"  case  met  to  test  Texas  law 
against  the  First  Amendment  rights  of  religious  freedom  guaranteed  under 
the  United  States  Constitution.  The  lawsuit  was  filed  by  Native  American 
Church  of  North  America,  and  the  American  Civil  Liberty's  Union 
represented  the  church  in  this  litigation.  On  April  22.  1968.  the  Webb 
County  District  Court  of  the  State  of  Texas  heard  the  case.  Subsequently,  the 
District  Court  found  me  "Not  Guilty"  and  declared  that  Texas  peyote  law  was 
unconstitutional.  Later  in  the  same  year,  the  legislature  amended  Texas  law 
to  permit  the  religious  use  of  peyote  for  American  Indians  in  their  religious 
ceremonies.  The  Texas  Department  of  Public  Safety  has  created  one  of  the 
finest  regulatory  system  in  the  entire  country  regarding  peyote.  The  Navajo 
Nation  has  also  developed  an  exemplary  system  second  to  none. 

13.  On  April  9.  1993.  I  had  the  opportunity  to  meet  with  June  Tracy 
and  another  staff  (legal)  member  of  Senator  Dennis  DeConcini.  regarding  the 
possibilities  of  the  Senator  to  sponsor  and  introduce  legislation  in  the 
Senate  to  establish  a  statutory  law  to  protect  the  use  of  peyote  for  the  Native 
American  Church  religious  ceremonies.  This  attempt  was  made  after  some 
discussions  with  Native  American  Church  National  President  Douglas  Long, 
because  there  obviously  was  a  need  for  stronger  protection  and  authority 
then  the  present  administrative  exemption.  The  Senator's  staff  members 
advice  was  that  this  was  riot  the  right  time  because  of  problems  with  drugs 
in  the  country,  that  United  States  Congress  would  never  support  any 
legislation  of  this  nature. 

14.  On  April  10.  1993.  our  legal  representative  Mr.  Martin  Senecca. 
the  National  Native  American  Church  President  Mr.  Douglas  Long,  Mrs.  Mary 
Natani.  delegate  at-large  of  Wisconsin.  June  Tracy.  Staff  Assistant  of  Senator 
Dennis  DeConcini  of  Arizona,  and  I  met  with  the  United  States  State 
Department's  staff  and  legal  advisor  and  the  staff  and  legal  advisor  of  the 
Food  and  Drug  Administration,  to  discuss  the  possibilities  of  developing  an 
agreement  between  the  United  States  and  the  Republic  of  Mexico  so  that 


BOSTON  PUBLIC  LIBRARY 


32; 


3  9999  05983  433  1 


Native  Americans  may  procure  and  transport  peyote  supplies  from  Mexico 
into  the  United  States  for  religious  ceremonies.  This  policy  would  be 
developed  by  both  Countries  and  implemented  with  strict  administrative 
and  legal  procedures.  This  would  allow  Native  American  Church  members 
to  obtain  their  peyote  supplies  and  eliminate  any  unnecessary  legal 
punishments  and  penalties  by  members.  We  were  informed  that  the  timing 
was  not  right  because  of  tremendous  drug  traffic  in  both  countries. 


Respectfully  submitted  by: 


^b^-< 


David  S.  Clark 


r^rument  was  acknowledged  before  me  this/A  :l 


''OT.ini    P  J^L    - 


«6l  ie  jeqojoo 
8ajiax3  uoiwiuiuioo  % 

My  Commission  Expires- 
October  31,  1994 


323 


The  Laredo  Times,  Wed.,  Apr.  24, 1968. 


Peyote     Possession 
Trial     Set 

Test  Case  To  Be  Held 
In  49th  District  Court 


By  TOM  GREEN 

Laredo  Times  Staff 

An  American  Indian  group 
is  attempting  to  test  the  Texas 
law  against  the  possession  of 
peyote,  in  a  case  set  before 
Judge  E.  James  Kazen  for 
Friday  in  48th  District  Court 

The  trial  is  set  for  9:30  a.m. 

David  S.  Clark,  about  33,  is 
free  on  bond  following  his  ar- 
rest at  Mirando  City  February 
9.  He  bad  possession  of  peyote, 
which  a  law  passed  by  the  le- 
gislature last  year  classes  as  a 
dangerous  drug,  police  said 

Clark  is  president  of  the  Na- 
tive American  Church  of  Nava- 
joland,  Ariz.  He  was  freed  on 
$500  personal  recognizance  bond 
In  the  misdemeanor  case. 

A  SPOKESMAN  FOR  THE 
Indian  group  has  said  their 
purpose  is  to  test  the  constitu- 
tionality of  the  state  statute, 
ejaiaaiBg  that  peyote  is  used  in 
religious  ceremony  and  the 
new  law  violates  religious  free- 
dom provided  in  both  the  U.S. 
and  state  constitutions. 

The  defense  is  represented  by 
Sam  Houston  Clinton  Jr.  of 
Austin,  general  counsel  far  the 
Tens  Civil  Liberties  Union. 

In  an  answer  already  filed  in 
the  case,  Clinton  claims  the 
state  law  abridges  the  free 
exercise  of  religion  as  granted 
by  the  First  Amendment  to  the 


US.  Constitution  and  also  by 
the  Bin  of  Rights  of  the  state 
constitution. 

He  Castas  Clark  had  peyote 
in  bis  possession,  "incident  to 
its  non-drug  use  in  bona  fide 
religious  ceremonies  of  the 
Native  American  Church,  and 
therefore  permitted  by  the  Con- 
stitution and  laws  of  the  United 
States  and  in  those  circum- 
stances the  State  of  Texas  may 
not  validly  prohibit  that  which 
federal  law  permits." 

THE  COURT  IS  ASKED  TO 

take  judicial  notice  of  the  fact 
that  statutes  against  peyote 
have  been  successfully  chal- 
lenged in  higher  court  deci- 
sions in  such  states  as  Arizona, 
California,  Colorado,  New  Me- 
xico and  Montana,  as  well  as 
federal  court  decisions. 

District  Attorney  Carlos  Cas- 
tillon  says  he  will  prosecute 
vigorously. 

"The  only  position  that  I  can 
take  at  the  trial  is  the  enforce- 
ment of  the  state  law  as  it 
reads,  which  makes  possession 
of  peyote  a  violation  of  the  pe- 
nal law  and  provides  no  exemp- 
tions for  religious  purposes," 
Castillon  said 

The  defense  will  introduce 
depositions  from  Dr.  Weston  La 
Ban,  of  Duke  University  in 
Durham,  N.C.,  and  Dr.  Hump- 
hry Osmond,  New  Jersey  Neu- 
ro-Psycbiatric  Institute,  Prince- 
ton, N  J.,  who  have  made  stu- 
dies and  are  the  authors  of 
works  on  the  Indian  religion  in 
which  peyote  is  part  of  the  tri- 
bal 


Chnrdi  Official 
In  Peyote  Case 

AUSTIN,  Tex.  «i  -  A  Native 
American  Church  official  from 
Window  Rock,  Ariz.,  charged 
with  possession  of  peyote,  win 
be  defended  in  court  by  the 
Texas  Civil  Liberties. 

Sam  Houston  Clinton  Jr., 
union  general  counsel,  said 
Friday  be  will  seek  to  establish 
a  recently  amended  Texas  law 
unctnstitutional  in  that  it  in- 
fringes upon  the  free  exercises 
of  the  group's  religion. 

Clinton  said  David  S.  Clark, 
bead  of  the  Native  American 
Church  in  Window  Rock,  was 
arrested  in  Mirsnrin  City,  Tex., 
and  charged  under  a  new  state 
1  a  w  defining  peyote  as  a 
dangerous  drug. 

Peyote  comes  from  cactus.  It 
is  eaten  by  members  of  the 
church  as  part  of  a  religious 
ritual  The  peyote  is  considered 
■acred  Clinton  said 

The  new  law  says  possession 
or  sale  of  the  cactus  Is 
punishable  by  fines  up  to  O000 
and  a  year  in  JsiL, 


o 


68-366   (328) 


ISBN   0-16-040964-0 


9  780160"409646 


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I