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
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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.
•2-
137
APPETTOTTL
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25
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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5
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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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145
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
PAGE 3
146
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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147
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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148
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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149
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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150
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
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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.
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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
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IN REPLY REFER TO: Onwr. Cobxwlo S022S
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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
unuea States Department, of ibe- Interior
freH.AMQ W1LOCI*T SCWVMTE
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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
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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
FWS/LE ENF 4
(Revised 11/8/78)
Page 1 of 2
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
(Revised 11/8/78)
Page 2 of 2
spo ••*-«••
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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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yU^HO lligfj
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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.
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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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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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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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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
302
The Native American Church
Position Paper
March 9, 1991
Page 11
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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The Native American Church
Position Paper
March 9, 1991
Page 12
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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The Native American Church
Position Paper
March 9, 1991
Page 13
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
90000
I