http://www.sbs.uab.edu/history/varticles/Nacsac.htm


Persecution or Protection?: The Historic Role of State Concerning Native American Church Sacraments

by Jonathan L. Foster

The Vulcan Historical Review 4 (Spring 2000)

Ó Jonathan L. Foster, 2000. All Rights Reserved.





One can easily imagine the overzealous missionaries of Leonard Crow Dog’s childhood forcefully conveying peyotism’s satanic nature to the impressionably young American Indian. With equal ease, images are brought to mind of the militant missionaries and reservation officials of his father’s era crashing into peyote rituals and desecrating the worshipers’ sacraments. Such distant memories of the Crow Dogs are, unfortunately, true enough.[1] They are not, however, representative of the modern issue concerning American Indian religious freedom. The days of the stereotypical image of white missionaries and reservation officials imposing Christianity upon American Indians are gone. The notion of religious oppression, nevertheless, remains a serious issue among today’s American Indian population. In their view, along with that of a new and ironic set of allies ranging from conservative Christian-fundamentalists to members of the American Civil Liberties Union, religious oppression is still very much alive. Such feelings of persecution arise as several sacraments of a popular American Indian religious practice conflict with state and federal laws intended to protect the public well-being. As a result, a battle exists in which American Indians seek legal exemptions, on religious grounds, for actions denied the remaining public. This is a complex and confusing issue, in which former enemies are now allies and former allies are now enemies. It is a battle between proponents of religious freedom and proponents of public safety.



Many areas of this issue are worthy of discussion. One such area concerns the Native American Church’s (NAC) sacramental use of the hallucination-inducing peyote cactus and American bald eagle for ceremonial purposes. This is troublesome, as drug laws prohibit use or possession of the mescaline-based peyote nationwide. Only recently have confusing exemptions to such laws appeared for religious practice. Likewise, until the eagle’s recent and dramatic resurgence, federal law protected it under the Endangered Species Act. At present, both the Migratory Bird Treaty and the Bald and Golden Eagle Protection Act still ban the killing, possessing, and transporting of eagles and eagle bi-products.[2] During the past half-century, NAC usage of such banned products developed into a major constitutional issue concerning the role of state in religious practice. It remains a highly contested issue with equally relevant points emerging from its history on both the state and American Indian sides.

The NAC ritual requiring peyote and eagle sacraments is not a long-held tradition among North American Indians. According to such former NAC members as John Lame Deer, the practice only came to his Lakota people within the last seventy years.[3] In fact, it was not until the latter part of the nineteenth century that NAC ritual spread into North America from its suspected Aztec roots.[4] Sown by traveling teachers or roadmen, the new religion found fertile ground among American Indian tribes of the era. It served to fill the void created by the United States’ brutal crush of the Ghost Dance religion in the 1890s.[5] Soon, the new practice emerged as a Christian/traditional mix. It then received official charter as the Native American Church in 1918.[6] Unlike traditional American Indian religions, the NAC fully embraced missionary work among the Indian people. It has, in turn, gradually grown to claim some 250,000 members.[7]



These NAC members view ritual peyote and eagle sacraments as absolutely necessary elements in the practice of their faith. They hold these items in the utmost sanctity. Evidence of this is found in NAC mythology concerning peyote’s emergence. This myth contends that a southern Indian tribe was suffering greatly from a deadly illness. In a dream, an elderly member of the tribe saw a healing plant. The woman quickly set out with her granddaughter to find the medicine of her dream. Eventually they became lost and nearly succumbed to thirst and exposure. As they lay near death, an eagle flew over prompting the elderly woman to pray. During her prayer, a voice emerged from a nearby peyote cactus. This voice informed the woman of peyote’s healing power. As instructed, the two women consumed the peyote’s buds and miraculously recovered. Over several days, the peyote instructed the women on its proper spiritual use and revealed their way home. Upon reaching their village, the women used the peyote to cure their dying tribe. To NAC members, this marks the origin of peyote’s sacred nature and spread throughout the American Indian population.[8] Also evident, due to its primary role in this myth, is the importance of the eagle as a peace-inducing object to NAC followers.

Regardless of how the peyote ritual actually came to the American Indian people, the fact remains that Christian missionaries and government officials brutally suppressed it in its embryonic years. It was not until President Franklin Roosevelt’s Indian Restoration Act of 1934 (IRA) that this persecution began to ease. The IRA called for, among its many provisions, greater religious toleration on Indian reservations. It effectively ended the policy of assimilation established by the Dawes Act of 1887 and sought to give reservation Indians a greater sense of autonomy.[9] The IRA laid the basis, despite the infringements of Eisenhower-era urbanization, for the modern notion of Indian sovereignty to emerge. This notion of sovereignty played and continues to play greatly in the issue over the state’s appropriate role in regulating Indian religious freedom.



In 1959, a prime example of the modern Indian religious freedom issue erupted. Ironically, the conflict arose from within the Indian population. That year a rift between the NAC and the Navajo Nation over the sacramental use of peyote climaxed with the court case Native American Church v. Navajo Tribal Council. This case stemmed from a 1940 ban on peyote by the Navajo Tribal Council. NAC members saw this ban as an infringement upon their First Amendment guarantee of religious freedom. Espousing such a belief, they eventually filed suit against the tribal council.[10] Leading up to the court case that followed, many outspoken proponents of the ban aligned themselves with the Navajo Tribal Council’s position.

The arguments in favor of the ban ranged widely. Within the Navajo tribe, modernists and traditionalists alike joined in condemning peyote use. Many viewed the drug as a dangerous force, leading neither to useful modernization nor to a return to traditionalism. Others, such as members of the tribal council, believed that widespread use of the drug would lead to increased violence and economic difficulty. To them, the NAC peyote ritual was merely drug abuse that promoted laziness and robbed Navajos of initiative.[11]



In the Native American Church v. Navajo Tribal Council, a federal court found the tribal council within its rights in suppressing religious peyote use. Labeling Indian reservations as “domestic dependent nations,” the court ruled them beyond constitutional reach unless mentioned by name in the wording therein. As the First Amendment made no specific mention of Indian tribes in its guarantee of religious freedom, the court saw matters of religious practice as falling to the reservation’s discretion.[12] The court, by labeling reservations in such a quasi-sovereign manner, denied reservation Indians the religious protection assured all other American citizens by the federal government. This case did not, however, address the issue of NAC peyote use off reservation land. The legal system found itself forced to address this issue a mere five years later.

In 1964, the California Supreme Court heard a case directly dealing with the issue of non-reservation peyote use by NAC members. The case arose following the arrest of several Navajo NAC members for taking part in a Needles, California, peyote ceremony. In the State v. Woody, the State of California alleged that peyote use contributed to more potent drug use, instilled poor values in children, and impeded proper medical care. Thus, California claimed the right to restrict the men’s religious freedoms for the common good of the state.[13] Yet the question remained whether ceremonial peyote use actually threatened the common well-being. According to longtime NAC roadman Leonard Crow Dog, peyote use constituted no such threat.

Leonard Crow Dog, a member of the Lakota Sioux tribe, has practiced religious peyote use his entire life. In fact, his father Henry Crow Dog was instrumental in bringing the ritual to the Lakota people. The younger Crow Dog shares the common view of NAC members that peyote is not a drug. He insists that NAC members do not attend peyote ceremonies simply to get high. Instead, members partake of the substance in an effort to transcend the physical realm and gain a clearer understanding of the spiritual realm. To Crow Dog, the peyote represents a sacred link between the worshiper and the Great Spirit.[14]

Crow Dog further believes that peyote use promotes rather than threatens the public good. He feels that the substance acts as a unifying and stabilizing force in the lives of those who consume it. For example, he contends that NAC members should introduce children to the peyote sacrament early in life. If this is done, the children will develop a sense of purpose that will not allow them to succumb to alcohol and drug abuse later in life. Without the influence of alcohol, Crow Dog believes that the violence common to reservation life will diminish greatly.[15]

In its deliberations, the court closely studied pro-peyote arguments similar to those later espoused by Crow Dog. It subsequently agreed with the NAC that peyote use is an integral part of NAC religious practice that should be allowed. In doing so, it admitted that ceremonial peyote use did not constitute a sufficient public threat to justify religious suppression.[16] While many states conform to this California precedent and make allowances for peyote rituals, exceptions abound.



Meanwhile, in the twenty years following the State of California v. Woody, the position of the NAC improved considerably. This betterment resulted from two legislative acts that seemed to champion the NAC’s right to practice as it saw fit. First, in 1968, the Indian Civil Rights Act became law. This law specifically forbade reservations from interfering with religious practice.[17] It did not, however, address the issue of state suppression. Then, in 1978, President Jimmy Carter signed the American Indian Religious Freedom Act (AIRFA). AIRFA recognized the right of American Indians to practice their religion as they deemed necessary, without government interference. Unfortunately for NAC members, AIRFA lacked effect as it contained no means of enforcement.[18] Regardless, with AIRFA, the federal government seemed to take the NAC’s side of the issue. It recognized that questionable practices were integral parts of NAC worship and therefore deserving of federal protection. The resulting NAC optimism was, nevertheless, soon diminished.



As previously mentioned, not all states accepted the liberal precedent set by 1964's State of California v. Woody. One such state was Oregon. As a result, the NAC’s bright outlook changed considerably in 1990 with the United States Supreme Court case Employment Division v. Smith. This case and its subsequent ruling contained major implications for the NAC’s religious ambitions.

Employment Division v. Smith stemmed from the 1984 firing of Galen Black and Alfred Smith from their jobs as alcohol and drug abuse counselors for American Indians. After the men attended a NAC ceremony and consumed sacramental peyote, the non-profit organization for which they worked terminated their employment.[19] The state of Oregon subsequently denied the two unemployment compensation, as their dismissal was drug related. The men then brought their case to the United States Supreme Court. In a very controversial 1990 decision, the Court ruled in favor of the Employment Division. In its ruling, the Court relied on the historical attitude that questions of religious practice fall solely to the state’s discretion. While all previous rulings stated that such intervention must be a last resort and based upon the protection of citizens, this ruling went further. It declared that state interference in religion was acceptable as long as it did not attack specific groups.[20]

Outrage from a wide variety of religious and civil organizations exploded following Employment Division v. Smith. The groups saw this ruling as a great threat to the religious freedom of all individuals belonging to uncommon religions. In effect, these groups believed the Court’s decision would allow state legislatures to censure, at will, any practice they deemed fit. According to these dissenters, gaining a majority in state legislatures would be impossible for members of irregular religions. They would, therefore, have no say in religious lawmaking. These people’s religious freedom would subsequently face great peril.[21]



Many in favor of the ruling saw it as an example of how the nation’s founders intended democracy to work. Among those hailing the decision was columnist George Will. Will believed the judgment rightfully placed religious questions firmly in the hands of individual states. In his view, this is exactly how the Court should interpret the constitution.[22] After all, the Supreme Court was merely allowing individual states to make and enforce their own laws as they saw fit. As Supreme Court Justice Antonin Scalia pointed out, the First Amendment only applies to religious belief and profession. Issues of practice lie entirely in the hands of state legislators. Scalia did address the concern of minorities’ inability to gain a majority in state legislatures. Like those who protested his Court’s ruling, Scalia realized that it gave practitioners of uncommon religions virtually no say in their religious fortunes. While he did see this as a legitimate problem, he firmly related it as the price of democracy. He steadfastly maintained that such infringements on certain religious beliefs were far superior to the anarchy that would result from an absence of law.[23]

As mentioned, many within public interest and religious circles rigorously disagreed with such logic. They viewed the Court’s decision as potentially threatening to the religious freedom of all Americans. In an ironic alliance, groups ranging from the Southern Baptist Association to the United States Catholic Conference to the American Civil Liberties Union, fought alongside the NAC in pushing for federal action to reinstate their perceived loss in freedom. They commonly sought an act that would protect uncommon religious practice from state scrutiny.[24] One can view the alliance’s mainstream religious member’s efforts as aimed at blocking any possible future oppression of their own religious freedom. Meanwhile, trouble was brewing on the endangered species’ front that would contribute to the materialization of such a law.



To members of the NAC eagles are considered as sacred and as integral to worship as peyote. Within NAC ceremony eagle products play a primary role. One use of the bird’s feathers is to make ceremonial fans. According to Crow Dog, the fans are representative of peace and are thus extemely sacred. In fact, NAC members so highly regard the fans that they allow no one other than the ceremonial leaders to touch them. Of equal importance to the ceremony are the eagle bones used to make sacred whistles. NAC members believe that without such whistles, the Great Spirit cannot hear their prayers.[25] A problem exists with such a dependence on eagle products, as the government has long classified the bird as an endangered species. Many American Indians charged for violating federal law, such as Nathan Jim Jr. and Dwight and Lyle Dion, have claimed religious persecution. A legal controversy has subsequently emerged concerning the issue of religious freedom.

In December of 1992, game officers arrested Yakima Indian Nathan Jim Jr., off reservation land, for possessing the carcasses of five hawks and one bald eagle. He also had in his possession various golden eagle parts. Jim insisted that he possessed the birds strictly for religious purposes. He claimed that peaceful burial of the dead required the use of the protected birds’ feathers. Unfortunately for Jim, he had only recently completed a ten-month sentence for possession of ten dead eagles. For this second offense, Jim faced a three-year prison term and a $300,000 fine.[26] Many environmentalists, such as the Audubon Society’s Ted Williams, find comfort in such stiff penalties.



Williams contends that there is no need for American Indians to continue killing the endangered eagles. According to him, Indians have several alternatives to such action. Among these alternatives, Williams lists better preservation of eagle products already in possession and a greater reliance on the U.S. Fish and Wildlife’s Service Repository of Eagle Carcass Feathers.[27] Using recovered eagle carcasses, the service repository donates eagle remains to Indian religious organizations upon request. In 1994 alone, the service donated 870 eagle carcasses and filled more than 28,000 requests for feathers. In contention to burial claims, such as the one put forth by Nathan Jim, the repository’s policy calls for expediting all requests involving funerals.[28]

Williams asserts that purely religious motivation does not drive many eagle killers. As an example, he uses the case of Dwight and Lyle Dion. Game officials charged this Lakota father and son with killing and selling some 300 eagles in the mid-eighties. The Dions claimed that their membership in the NAC required such activity. Thomas, however, alleges that the $5,000 selling price of eagle-feather war bonnets was the true cause of the killing. He therefore disagrees with the federal court decision that exonerated the Dions. This decision stated that an 1858 treaty gave Lakota full hunting rights on reservation land. Therefore, because the killing took place on reservation land, the Endangered Species Act did not apply. To many environmentalists this was a very dangerous decision, as reservation lands are home to a great variety of endangered species.[29]

In an attempt to curtail the eagle killing on reservation land, U.S. Representative John Breaux of Louisiana introduced an amendment to the Endangered Species Act. This amendment promoted enlarging the act to cover reservation land. It did, however, make provision for American Indian religious practice. The proposed amendment stated that members of religious organizations could obtain permits for taking endangered species. American Indians, nonetheless, viewed this as potentially oppressive. The resulting uproar forced Representative Breaux to let the amendment die.[30]



Such outrage joined with the already loud voice of the before-mentioned religious and civil alliance to overturn the Employment Division v. Smith decision. In Washington, D.C., policy makers clearly received the message. The result was the Religious Freedom Restoration Act of 1993 (RFRA). Introduced in the Senate by Democrat Edward Kennedy and Republican Orrin Hatch, the bill passed by an astoundingly non-partisan margin of ninety-seven to three on October 27, 1993. President Bill Clinton then signed it into law on November 16, 1993.[31]

The RFRA basically returned federal religious policy to its earlier position, prior to Employment Division v. Smith. It declared that states could only interfere with religious practice as a last resort, when public protection demanded it. Even then, the RFRA limited state interference to the least restrictive manner. This applied to all religious practice, including NAC peyote and eagle sacraments.[32] NAC practitioners are, therefore, under less threat of state intervention for the time being. As shown by this issue’s history, however, this is subject to change with the next court ruling.



Through their adherence to the peyote and eagle sacraments, NAC members have ignited a firestorm of controversy over the past fifty years. At the basis of this conflict is not merely the use of illegal drugs and protected species, but rather the state’s role in controlling Native American religious practice. It is an issue with valid points of contention on both sides. As for the state, it is true, as Justice Scalia stated following Employment Division v. Smith, that a society must have the rule of law to avoid anarchy. His contention that democratic rule is based on the opinion of the majority, which all too often infringes upon the rights of the minority, is also true. Likewise, the claims of NAC members such as Leonard Crow Dog establish that NAC sacramental use of peyote and eagle products are a required part of their religion. To infringe upon such sacraments, on or off the reservation, is an act of religious oppression. This is an extemely important issue, as religious freedom is a perceived cornerstone of American society. If the federal government allows states to impede this right simply on whim, what freedoms will fall next? In oppressing the rights of even the smallest and weakest elements of society does the government endanger the rights of all? But then again, if absolute freedom under the guise of religious practice is allowed, does the door open for such evils as human sacrifice, indiscriminate drug abuse, and unchecked environmental degradation? There is no easy solution. This is the system under which Americans live.

what would Great Spirit do?


buffalos getting feisty? good on them

"The notion of religious oppression, nevertheless, remains a serious issue among today’s American Indian population. In their view, along with that of a new and ironic set of allies ranging from conservative Christian-fundamentalists to members of the American Civil Liberties Union, religious oppression is still very much alive."


and in the end, the love you take....

Indeed, any time the word "heathen" is used as a "politely" offensive slam against any non-Christian faith, religious oppression is rearing its ugly head and demonstrating the degree to which these statements are true.

Indeed, any time the word "heathen" is used as a "politely" offensive slam against any non-Christian faith, religious oppression is rearing its ugly head and demonstrating the degree to which these statements are true.

But, of course, those kinds of attacks are "civil" so they are tolerated--even by "born-again liberals".