Chapter Eleven
Employment Division v. Smith: Taking the Religion
Reuben Snake was one of the greatest tribal leaders of the twentieth century. He realized if Smith were allowed to stand, it could be the death knell of the Peyote Religion of the Native American Church. He created a coalition to go to Washington and fight for his religion. The goal seemed impossible: overturn the highest court of the land without a dime in his coffers! When asked how he proposed to do this, he replied: With a frequent flier coupon and a prayer. Then he added with a soulful smile: We’ll find good friends along the way.
THE REMARKABLE STORY about how Reuben Snake overturned a Supreme Court decision deserves to be told. He led an improbable movement in the 1990s to overturn Employment Division v. Smith (1990), one of the most unpopular cases of the twentieth century.2 This tale is about the human spirit. It will uplift freedom-loving people everywhere because it involves a quest for religious liberty. Many books and articles have been written about the Smith decision and its far-reaching implications, but little has been reported about the Native American movement that overturned Smith through the passage of the American Indian Religious Freedom Act Amendments of 1994.3 That story will go down in history as one of our nation’s finest hours. I know. I was there. This chapter tells how it was done.
In the late 1980s, the United States Supreme Court heard four Native American religion cases that changed the face of the law.4 Each of these cases refused to apply extant First Amendment principles to Native American free exercise of religion claims. The cases were decided by the conservative axis of the Ronald Reagan Court led by Chief Justice William Rehnquist. The axis backed away from the task of protecting tribal religious practices. The doctrines announced in those cases made it clear that the First Amendment will never be interpreted by the Rehnquist Court to protect tribal religions. The rulings, of course, devastated Native America. They impacted every tribal community in Indian Country—one of the most marginalized segments of our society already marked by a long history of religious discrimination. The rulings emphatically rejected any constitutional protection for them. This chapter exposes the factors that led to this anomalous situation in the “land of the free” and how Indian Country responded to the utter lack of legal protection by the courts toward the end of the twentieth century.
Historically, American courts had a poor track record in protecting Native American religious liberty during the nineteenth and twentieth centuries. In the absence of judicial protection, the government enjoyed free rein to restrict tribal religious liberty for almost two hundred years, as if no constitutional protection existed for Native America at all. By 1990, the Supreme Court gave up that task entirely in the Smith case and referred the matter to Congress. The judicial mind-set that allowed this loophole in religious liberty is puzzling because the protection of individual liberty is the defining role of the courts. In our system of government, the task of safeguarding minority rights and personal freedom from the excesses and abuses of majoritarian will expressed by the political branches falls to the judiciary. James Madison explained the special obligation of the courts as the guardian of the Bill of Rights when he presented that foundational document to Congress.
If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.5
This critical check on the balance of governmental power in our democratic system collapsed when it came to Native American worship. How can any religious faith be excluded from the ambit of the First Amendment? Was it a simple legal anomaly, or something darker?
Several forces explain the judicial system’s nearly complete failure to protect tribal worship in Native America. If viewed narrowly, the Indian religion cases are seen only as products of an insensitive court system that experienced inordinate difficulty understanding and protecting a set of religions vastly different from those more familiar to American judges. That explanation, however, is not entirely correct, as the courts have protected exotic faiths imported from other lands, such as the animal slaughter rituals of the Santeria religion, of African origin, imported from Cuba or the sacramental ingestion of the hallucinogenic hoasca tea imported from the Amazon rain forest by white Americans who belong to the O Centro Espírita Beneficente União do Vegetal Church.6 Thus, we cannot explain the courts’ failure to protect indigenous religion by the apology, “Gee, I can’t understand your religion.”
In the case of Native American religion, the courts were captive to larger, more powerful forces that resulted in the near eradication of tribal religion—that is, settler-state policies animated by religious discrimination against tribal religions. This form of discrimination and intolerance was particularly pronounced because it was propelled by the forces of conquest and the mind-set of colonialism. No other religious group in the United States has been subjected to these forces, which virtually preordained the suppression of tribal religion as a matter of government policy and pressing social imperatives in a settler-state society. Historian Patricia Limerick concluded that the government’s campaign against Indian religions was an integral part of the conquest of the American West.
By the 1890s, the wars of conquest were officially over; but the power politics of conquest remained unsettled. The actual battles were, in many ways, only a prelude to this campaign on the part of the agents to convince the Indians that…the Government is supreme, and will do what it pleases with them or theirs…In this context, the suppression of religious freedom carried down-to-earth meanings of power and dominance. To the agents of the 1890s, religion could rebuild a people’s morale; religion could make them defiant; religion could make them hard to rule. In those terms, suppressing religion was as vital a part of conquest as sending troops out to engage in direct military combat.7
The government also sought to eradicate tribal religion as part of its program to end Indian culture in the late 1800s as part of the assimilation, civilization, and tutelage policies. These policies prevailed when the federal government ruled Indian tribes by guardianship.8 Rule by guardianship was common in colonies and settler states during the age of imperialism, where it was popularly referred to as the white man’s burden. The will to suppress tribal religion during the conquest, colonization, and guardianship processes was animated by religious intolerance. Europe’s history of religious intolerance was carried to the New World by Columbus. It informed the goal of colonialism to supplant colonized people. It was easier to marginalize and dominate Native people by discounting their religion and replacing it with a supposedly superior one. The legal systems in colonized lands supported that work, or at least turned a blind eye toward the destruction of tribal religion. These forces rubbed out many tribal religions around the world in the nineteenth and early twentieth centuries.
Even after the colonial era came to a close, American courts continued to retain many nineteenth-century attitudes seen in Indian religion cases. That continuing failure to understand and respect Native American religious beliefs and practices is partially due to the progressive secularization of American society during the twentieth century, which has pushed all religions aside. Smith completed the secularization process insofar as the law is concerned by placing the sacred firmly under the control of secular political institutions. In short, against the forces of conquest, colonialism, guardianship, religious intolerance, and secularization, the courts cast aside their bulwark function during the nineteenth century and allowed the American legal system to become part of the process of marginalizing and supplanting tribal religion. Together, these potent forces molded a legal system that allowed the government to infringe upon and destroy tribal religions in ways the courts would never tolerate for other religions. The end result was a loophole in religious liberty that lingered in the courts of the conqueror many decades after those policies were repudiated by the larger society. Ultimately, that judicial mind-set produced noxious legal doctrines in Smith so out of step with mainstream values that the task of protecting religious liberty has largely been taken away from the courts and placed into the hands of Congress.
The legal doctrines of Smith spring from two Supreme Court decisions decided in 1988 and 1990. In Lyng v. Northwest Indian Cemetery Association (1988), the Supreme Court began the process of eviscerating Native religious freedom. Lyng allowed the US Forest Service to destroy a tribal vision questing site located on Forest Service land by building a dirt logging road through the holy place.9 Even though the Court conceded the road would destroy the holy place and associated religions of three tribes that were dependent upon visions and other activities performed there, it held that no burden was placed upon Indian religious practices within the meaning of the First Amendment. That astounding leap of logic was achieved by narrowing the reach of the First Amendment to almost minute proportions—the Court reasoned that government can destroy an entire religion without burdening any religious practices so long as it does not (1) punish someone for practicing his religion or (2) force a person to violate his religion. Only in those narrow circumstances does the First Amendment apply, according to the Lyng Court. Thus, the government can destroy a holy place and render worship impossible without burdening anyone’s religious worship, so long as it does not punish people for practicing their religion, nor force them to violate their religion. This remarkable judicial sophistry rests upon a pure legal fiction: that the government can destroy an entire religion without burdening any religious practices. It strips Native American holy places of any constitutional protection and frees the government to destroy religions, so long as government does not punish the practitioners nor force them to violate religious tenets. Lyng deserves (and will receive) further analysis in its very own chapter.
Smith continued the slide down the slippery slope greased by Lyng. Smith held the First Amendment does not protect the sacramental use of peyote in religious ceremonies of the Native American Church (NAC). In Smith, the controversy was over a small cactus that grows in the United States only in the Rio Grande valley of Texas. The plant has naturally derived mind-altering properties from mescaline. When ingested, it can produce psychoactive effects. Though medical studies have not documented any adverse medical or psychological problems among American Indians due to their religious use of this plant, peyote was outlawed as an illicit drug as part of the war on drugs.10 These laws have produced controversy over the ceremonial use of this plant by tribes—a religious practice that may span ten thousand years.11 Archaeological radiocarbon dating dates Peyotism in the Rio Grande valley to 5000 bc, long before Columbus arrived and the United States was founded.12 This religious tradition is much older than Christianity. Due to its antiquity, Peyotism is classified as one of the “primal” religions of the world (i.e., one of the oldest religions that came before the rise of the historical religions).13 Today, some 250,000 American Indians practice the Peyote Religion. It is perhaps the oldest, most continuously practiced religious tradition in the western hemisphere. The NAC is the modern, organized embodiment of this indigenous religion, called The Peyote Road. The central tenet is the belief that the peyote plant has a spirit, just like us. Through the Creator, peyote is a profound plant of power that can communicate with people, assist their prayers, heal the sick, and help Indians lead a better life. Because of these attributes, peyote is considered a holy sacrament given to the Native people and is part of the body of the Creator. Profound religious ceremonies have amply demonstrated the mystical powers of the peyote plant to untold thousands of American Indians over centuries of ceremonial use.
It was a tall order to exclude an entire religion with 250,000 members from the ambit of the First Amendment. That feat was accomplished only by conducting major surgery on the First Amendment and associated legal precepts. First, the Court exempted all criminal laws and all civil laws of general application that restrict religious liberty from the reach of the First Amendment. This enormous new exception rewrote the First Amendment to read: Congress shall make no law prohibiting the free exercise [of religion], except all criminal statutes and all civil statutes of general applicability. Second, Smith discarded the legal test developed by the Supreme Court in earlier cases for protecting religious liberty under the First Amendment, known as the “compelling government interest” test. Under that test, government may not infringe upon a religious practice unless it is necessary to protect a compelling government interest of the highest order and there is no less restrictive way to protect that interest. The Court was concerned that this test was too stringent—that is, too many religious practitioners might benefit from such a strict test and carve too many exceptions to general laws necessary to accommodate their religious practices. Thus, the Court scrapped the test, saying that American religious diversity is a “luxury” our nation cannot afford.14 Third, the Court raised the bar for constitutional protection of religion by adding new requirements that worship will not be protected when the government burdens religious liberty unless that action also violates some other additional First Amendment freedom, such as freedom of speech, association, or the press. This new requirement has no legal basis and was pulled out of thin air to arbitrarily place additional hurdles in front of citizens seeking to protect their religious liberty. Finally, Smith prohibited courts from accommodating religious practices. It told minority religious practitioners to go to Congress, instead of the courts, when general laws infringe upon their religious practices. The defining role of the courts as protectors of religious liberty was brought to an end in Smith, even though the Rehnquist Court knew that unpopular minority religions have little chance of securing political relief from the very institutions that threaten them.15 As noted in the dissent, religious liberty is threatened when it is placed alongside other, private interests that must be lobbied for in the political arena.
In short, the new rules announced in Lyng and Smith snuffed out hope that tribal religion will be protected by the First Amendment. Why did the Supreme Court go so far in the Indian cases to trash the First Amendment? Legal scholars have analyzed the remarkable gymnastics used by the Court to restructure and restrict First Amendment jurisprudence in the Smith line of Indian cases.16 The Court did not tiptoe through the tulips. Rather, the conservative axis brazenly ignored established legal precedent, openly abandoned legal tests that it considered too tough on the government, and carved gaping exceptions that place nearly every kind of statute beyond the protective reach of the First Amendment.
In the end, these gyrations rationalized such a diminutive view of the Constitution that almost no protection for worship remained for anyone! American Indian religion was the miners’ canary. The doctrines of the Indian religion cases threatened the rest of the nation, because they severely restricted the entire body of law that protects American religious liberty in general. Indeed, the rulings hearkened the decline and fall of the First Amendment as the primary basis for protecting freedom of worship in the United States. In so doing, Smith emphatically ended an era in American life when religious freedom was considered an inherent human right and foundational principle of the Republic.
The Indian cases thus placed the Court on a collision course with Congress in a dispute between these two branches of government over the vitality and extent of religious freedom in our modern society. After Smith, the First Amendment would no longer be the primary means for protecting religious freedom. All of America would have to depend upon politicians instead. Religious liberty is now dependent on the outcome of elections, the political vicissitudes of lawmakers, and lobbying in the dark corners of Congress. Smith precipitated a stampede to Congress. Church groups of every description immediately left their pews, toiling nights and weekends to pound down the doors of Congress for new laws to create statutory protections for their freedom of worship. The panic-stricken pilgrimage to Washington, DC, sparked an epic struggle between Congress and the Supreme Court over the nature and extent of American religious liberty—a pitched battle that lasted the rest of the twentieth century.17 Smith has never been repudiated by the Supreme Court to this date. However, the deeply divided Court remains splintered by repeated calls from numerous justices urging reconsideration of the Smith ruling.18 During that internal squabble among the justices, Congress passed laws that flatly repudiated Smith as being sorely out of step with the Bill of Rights and the needs of a modern society comprising virtually every religion known to the human race. As I will discuss, Reuben Snake led the Native American coalition that secured passage of one such law that overturned Smith and legalized the religious use of peyote by Indians in all fifty states.
The failure of the courts to protect Native American worship is very sobering. The judiciary has experienced inordinate difficulty in applying routine First Amendment principles to Native American religious freedom claims over the years. Smith epitomizes the courts’ failure to apply that body of law to tribal religions. In the absence of judicial protection, the government took tribal religion away from Native peoples with impunity in the nineteenth and twentieth centuries. In order to protect what little remains, the courts must come to grips with the forces that allowed that unjust travesty to happen and repudiate the judicial mind-set that led to Smith. Several profound questions must be addressed. First, how should we comport ourselves, as members of a modern, industrialized society, toward the surviving indigenous religions in the United States? In former colonies and settler states, what are the roles of law and the courts of the conqueror? On a larger scale, how should the modern world comport itself toward the last surviving primal religions of the world? Finding the proper balance between the sacred and the secular in the modern world is a compelling issue for all of us.
In order to provide a context for understanding the forces that led to Smith, it is necessary to remind secular minds of the nature of religion—that is, authentic faith held by people for whom religion still matters—and why religion matters in the modern world. Accordingly, we shall first examine the nature of religion and explain how indigenous religion fits into the religious traditions of the world. We shall glimpse into the mystical side of Native American life and explore the relationship between humans and the plant world in Native North America as the backdrop for understanding the sacramental use of peyote at issue in Smith. We must also trace the historical suppression of tribal religion in the United States and identify the root causes of religious intolerance and discrimination that worked their way into the machinery of government. The rise of secularism that marginalized the sacred in American life is another pathway to Smith that will be explored. Finally, after detailing Smith as one of the ten worst Indian cases ever decided, I will chronicle the amazing movement led by Reuben Snake to overturn that case with the passage of a historic law that reverses the forces that produced the Smith mind-set—a remarkable feat that gives hope for the survival of the world’s remaining primal religions.
Do Indians Have Religion?
On October 12, 1492, on his first day in the New World, Christopher Columbus recorded in his diary that Indians “would easily be made good Christians, because it seemed to me that they had no religion.”19 He was wrong. However, the early colonizers brought similar attitudes to North America. Many wondered whether Indians had souls. Most were convinced that tribal beliefs and practices were barbaric superstitions held by “heathen savages,” or at best the New World religions were inferior and needed to be replaced by Christianity. These attitudes indicate religious intolerance or religious discrimination, and they marked race relations and government policy in the United States in the nineteenth and most of the twentieth centuries. This mind-set proved to be highly injurious to Indian tribes when enforced through the machinery of government and the legal system. The goal of this chapter is to dispel misconceptions about indigenous religion, beginning with the fact that Indians do have religions.
What is religion? We think we know it when we see it, but many people cannot fathom religious beliefs and practices that are vastly different from their own. This problem blinded the early colonists, settlers, and government policy makers who were unable to see that Indians had religion, when in fact North America was teeming with profound tribal religions of great antiquity. Many federal judges in the twentieth century shared this problem. They were seemingly baffled when confronted by Native American religion claims. Despite clear testimony from practitioners themselves, courts had great difficulty discerning whether tribal beliefs and practices actually amount to a “real” religion.20 Many claims were erroneously branded as “cultural preferences” or desires “to express pride in heritage” that did not rise to the level of religion.21 Some tribal religions were described as “holistic worldviews” too broad to be a religion as Anglo Americans categorize it.22 Others were not considered a religion because medicine men did not meet regularly or often like the leaders of Christian churches do.23 Holy places, like cemeteries, were described as “cultural,” not religious places;24 and tribal attempts to protect worship at holy places were frequently seen as “property rights” claims, not religion claims.25 The problem of recognizing tribal religious activity in our midst is further compounded today by a secular mind-set, held by many, that has lost sight of authentic religious faith and the nature of religion as one path to understanding the world around us. Thus, since 1492, Native North America has been seen by many newcomers as a place of superstition, largely devoid of any real religion.
North America has never been a vast land without religion, as Columbus thought. Religion is a mark of humanity. It has shaped every human society since the beginning of time, including Native North America. The sacred is not only embedded in the human mind, but has been cherished in every age by all races and cultures, because the spiritual side of life uplifts the human spirit. Religion not only provides identity, but answers ultimate questions about life, death, and the world around us. It addresses questions about the human spirit that science cannot answer.26
Belief in the higher powers allows people to confront the supernatural, understand its magic, and peer into the Great Mystery. It is through faith alone that we are brought into contact with the spiritual realm, propelled by religious ceremonies that enrich our lives. Furthermore, for most of human history, religion was the primary path toward truth and the nature of reality—that is, it guided our understanding of the world around us. It explained the things we can see, touch, and feel and, more important, those we cannot. It gave meaning to the forces of nature and of the universe. And it allowed us to fathom the spiritual world that lies beyond our view. The articles of faith found in world religions are a treasure trove of wisdom. They provide sound advice for conduct, values, and ethics, and they espouse enduring theological and metaphysical truths. When considered collectively, this sacred knowledge is the sum of mankind’s wisdom traditions compiled by the human race over millennia.27 This is so, even though no religious belief can actually be proven by facts or other hard evidence discernable to the secular mind! For all of these reasons, individual religious conscience is widely considered inviolable in lands where Hinduism, Buddhism, Confucianism, Taoism, Islam, Judaism, and Christianity abide, as well as aboriginal places where primal religions are found.
Though long overlooked by scholars, religion obviously exists among America’s Native peoples. Huston Smith, a leading authority on world religion, classifies Native American religions among the “primal religions” of the world. In 2001, this beloved figure sheepishly explained why he revised his classic text, The World’s Religions, to include tribal religion among the religious traditions of the world:
“My God, Huston,” I heard myself saying in the car, “for three decades you have been circling the globe trying to understand the metaphysics and religions of worlds different from your own, and here’s one that has been right under your feet the entire time—and you haven’t even noticed it.” That was the moment when the significance of this totally new area of world religions, supposedly my field of study, just clicked…So thirty-five years after the first edition of my book had appeared, I added a chapter about the primal religions, making it eight, instead of seven, religions covered in the book…To omit them from the first edition of my book was inexcusable, and I am glad I will not go to my grave with that mistake uncorrected. The added chapter honors the primal religions as fully equal to the historical ones.28
Smith defines tribal religions as primal because they came first and are the oldest religious traditions of the human race. These religions, according to Smith, represent “human religiousness in its earliest mode” and allow tribal people to “retain insights and virtues that urbanized, industrialized civilizations have allowed to fall by the wayside.”29 The primal religions differ from the large historical religions in several major respects. They are tribal in nature, that is, they normally consist of small groups who practice according to the oral, not written, tradition.
The tribal religions cannot be considered in a vacuum, but must be understood within the context of the primal world, for tribes in their aboriginal places are embedded into their indigenous habitats so solidly that the line between nature and the tribe is not easy to establish. For example, when the first early explorers came into Klamath Indian Country in southern Oregon, they were amazed how closely the Indian hunters, fishers, and gatherers merged with their environment: “Almost like plants, these people seem to have adapted themselves to the soil, and to be growing on what the immediate locality afforded.”30 Unencumbered by materialism, the primal world has no sharp lines dividing humans from animals and plants—as all are thought to possess the same spirit. As Black Elk, a Lakota, put it:
All things are the works of the Great Spirit. He is within all things; the trees, the grasses, the rivers, the mountains, and the four-legged animals, and the winged peoples. He is also above all these things and peoples.31
In totemism, animals are like people who talk, plants have spirits just like us, and humans can exchange forms with their opposites in the natural world. Humans are kin to animals and plants, connected by physical, social, and spiritual ties. These close connections are illustrated by tribal names. Many Indians are commonly named after animals and plants from their tribal areas. My family members, for example, carry such Pawnee tribal names as Blue Corn Woman, Acorn, Young Buffalo Calf, Eagle Woman, Mother Corn Goes Inside, New Horse, Fighting Bear, Good Horse, Big Crow, Hill of Corn, Coming Horse, Blue Hawk, Roam Eagle, Flying Eagle, Echo Hawk, Male Elk, Eagle-Flies-High, Hawk, Screaming Eagle, Crazy Horse, Stallion, Spotted Horse Chief, White Eagle, and She-Is-Leading-A-Horse-Inside-To-Give-It-Away. In this tradition, people are relatives to the plants and animals that comprise their world.
Similarly, no sharp lines exist between this world and the next. Smith observes that “the most important single feature of living primal spirituality” is the “symbolist mentality” that “sees things of the world as transparent to their divine source.”32 He points out that “modernity recognizes no ontological connection between material things and their metaphysical, spiritual roots” like primal peoples who are “better metaphysicians” in this sense, even though their metaphysics is “naturally of mythic cast.”33 In this regard, to the primal mind physical appearances and reality are never entirely as they seem. Instead, the landscape, forces of nature, and the animals and plants in the primal world have a spiritual side; and that reality presents a “‘spiritual dimension’ which escapes modern man.”34
Smith categorizes the tribal religions in the United States among the primal religions of the world, along with indigenous religions in Africa, Australia, Oceania, Siberia, Southeast Asia, and the other Indians of North and South America; and he ranks them alongside the major historical religions. He found that no one religion is superior: “[N]o one alive knows enough to say with confidence whether or not one religion is superior to the others—the question remains an open one,” but “this book has found nothing that privileges one tradition above the others.”35 The best advice is to view all religious traditions as a single mosaic “in a stained-glass window whose sections divide the light of the sun into different colors” as the Spirit appears to different peoples, because religious differences have inherent worth and for God to be understood in all parts of the world, “divine revelations would have had to be couched in the idioms of its respective hearers.”36
Within the primal religion framework described by Smith, Native Americans are heir to religious traditions with amazing diversity that rank high among the world’s religions for their rich spirituality, ceremonial life, profound beliefs, and ritual practices.37 That includes the Peyote Religion at issue in the Smith case. Much has been lost due to the forces that have eroded the spiritual powers of nearly every religious tradition, including secularization, religious intolerance, and the lack of legal protections against infringement and religious discrimination by the government. Nonetheless, even today the surviving aboriginal religions in the United States exist on a scale that surpasses Middle Eastern diversity. Our soil is quite literally sacred ground—that is, a land that is home to older and more numerous holy places than those described in the Old Testament and the Koran. Many tribes continue traditional rites in our own land throughout the ceremonial year. The challenge is to protect what remains.
The intrinsic value of Native American religions extends far beyond the religious sphere. Based upon centuries of close observations of the natural world by a race of hunters, fishers, and gatherers with cultures that evolved from their indigenous habitats, the unique American religions bring depth and beauty to our country’s cultural heritage. These primal religions contain environmental teachings and ethics sorely needed in today’s industrialized society, which has polluted large parts of the nation, driving away the fish, animals, and plants that once inhabited those regions. That trend is the direction we are headed unless the nation finds a clear ethic for addressing the natural world. The sacred symbols, music, art, and religious objects found in Native American religion are prized cultural patrimony and intellectual property that are increasingly appreciated for their intrinsic beauty. To Native peoples, the traditional religions are the glue holding Indian tribes and Native communities together over the centuries, often in the face of great adversity. Even today, the bundle of legal rights enjoyed by Indian tribes, including casinos and bingo halls, can be quite meaningless unless their political, property, and human rights are informed by a vibrant language, culture, and traditional religion.
The Role of the Plant World in Primal Religion
To understand the Peyote Religion at issue in Smith, one must ponder the spiritual relationships between Native peoples and the Plant World found in the aboriginal American religions. What is our relationship to the plants that comprise our environment? Many in today’s secular world have become estranged from the natural world or were never in tune to the ties between humans and plants that deeply shape human cultures.
We mostly interact with plants only when they are on the dinner plate or when we water potted plants in the home, and few maintain close ties to Native plant communities in the wild. Melvin Gilmore was an early ethnobotanist who studied the extensive plant knowledge of the Plains Indians at the turn of the nineteenth century. He noted that native plants and their uses as food and medicine were largely overlooked by incoming settlers who displaced them:
The people of the European race in coming into the New World have not really sought to make friends with the native population, or to make adequate use of the plants or the animals indigenous to this continent, but rather to exterminate everything found here and to supplant it with the plants and animals to which they were accustomed to at home. It is quite natural that aliens should have a longing for the familiar things of home, but the surest road to contentment would be by way of gaining friendly acquaintance with the new environment…We shall make the best and most economical use of all our land when our population shall have become adjusted to the natural conditions. The country cannot be wholly made over and adjusted to a people of foreign habits and tastes. There are large tracts of land in America whose bounty is wasted because the plants which can be grown on them are not acceptable to our people. This is not because these plants are not in themselves useful and desirable, but because their valuable qualities are unknown.38
By contrast, the Native people were intimately familiar with the plants that lived in their tribal habitats, and the vegetation of their region was an important factor shaping their cultures. Their relationships with the plant world ran deep and were maintained on a metaphysical level.
Among indigenous peoples, it is often said that animals and plants can give knowledge and power to those who listen. As the late Vine Deloria Jr. observed, “Stories abound in which certain plants talk to people or appear in dreams to inform humans of their uses.”39 This feature of primal religion was noted by Smith. The primal mind reveres beings, such as animals and plants, according to their proximity to their divine source, and the division between animal, plant, and human is muted, “for plants have spirits like the rest of us.”40 Like animals, they can take pity on humans, place them under their protection, and teach them their secrets. As Brave Buffalo, a Lakota, explained in 1918:
All people have a liking for some special animal, tree, plant or spot of earth. If they would pay attention to these preferences and seek what is best to make themselves worthy of that to which they are attracted, they might have dreams which would purify their lives.41
These relationships in the primal world produce the kind of joy expressed by another Lakota, Standing Bear, that is rarely found in the modern world:
The Indian tried to fit in with nature and to understand, not to conquer or rule. Life was a glorious thing, for great contentment comes with the feeling of friendship and kinship with the living things around you.42
This kinship extends to all creatures great and small. As Pete Catches, Lakota, explained in 1973: “All animals have power, because the Great Spirit dwells in all of them, even a tiny ant, a butterfly, a tree, a flower, a rock.”43 Nothing is overlooked in primal religion, as Black Elk astutely observed: “One should pay attention to even the smallest crawling creature for these may have a valuable lesson to teach us, and even the smallest ant may wish to communicate to a man.”44
This spiritual relationship extends to relatives in the Plant World. As one Lakota pointed out in 1894, “The tree is like a human being, for it has life and grows; so we pray to it and put our offerings on it that God may help us.”45 When traditional Klamath Indians enter a forest, they are taught to introduce themselves by approaching the largest tree and telling that ancient being their name, tribe, and clan and asking its blessing to be welcomed into the forest and all of its surroundings. If done in a good way, the tree will grant one’s prayer. The Plant World communicated to my family members in times past. My great-grandfather Echo Hawk, who was then named Big Crow (Kaa’ka’ Raarihuuru) told this story about a cedar tree to James Murie in 1903.
In olden times a war party went out to the west to find the enemy. For many moons they traveled. At last they came to a rough country. There they made a camp. In the night these warriors heard a woman crying. Three warriors were selected to find the woman. They went in the direction of the crying, which became fainter as they drew near to it. They went away, and again the crying was heard. They followed the sound again and all came to a cedar tree. It was the cedar tree that was crying like a woman. When they found it was the cedar tree that was crying, one man said: “Warriors, let us go home.” They would not listen to the man, but continued their march. The man would not go with them, but lingered behind, for he was afraid to go on the war-path after he had heard the cedar tree weeping, for he thought it was a bad omen. The next day they were attacked by the enemy. The lone man watched from a distance. All were killed, so the lone man went home and told the story.46
For millennia, the human cultures in North America have paid close attention to the plants and animals in their habitats—just like all good hunting, gathering, and fishing societies must do in order to survive and flourish. As a result, diverse religions arose from those observations. In those religions, plants and animals are considered sacred. This continues today by aboriginal hunters, fishers, gatherers, and their descendants—that is, traditional folks who live in tribal communities and continue to maintain the close spiritual relationships that were forged long ago with the plants and animals of their world. Though little understood by non-Indians, these bonds are commonplace among tribal people around the world, especially those who continue life in aboriginal habitats. In many American Indian, Alaska Native, and Native Hawaiian communities, the spiritual side of life continues to be enriched by teachings and spiritual power received from animals and plants. As Reuben Snake explained in 1993:
When you look at all the other parts of creation, all the other living creatures—the Creator endowed them with gifts that are far better than ours. Compared to the strength of the grizzly bear, the sharp sightedness of the eagle, the fleetness of the deer, and the acute hearing of the otter, we’re pitiful human beings. We don’t have any of those physical attributes that the Creator put into everything else. For that reason, we have to be compassionate with one another and help one another—to hold each other up.47
Traditional ceremonies are held in those communities to honor these spiritual relatives, to communicate and receive blessings or knowledge from them, and to otherwise worship the Creator in the natural world.
The Makah Indian whaling culture is one striking example. For thousands of years, this seafaring tribe has looked to the ocean for food, tools, and clothing. Whaling became the core of Makah culture, art, identity, economy, and way of life. The rituals, songs, ceremonies, and legends surrounding whales have deep spiritual significance in Makah life.48 Similarly, the animals, plants, and sea life of southeastern Alaska pervasively affect Tlingit society, just like the flora and fauna in Hawaii deeply influence the Native Hawaiian communities. The Columbia River tribes revere salmon and the women of those tribes maintain close religious connections to the plants, roots, and berries that comprise ceremonial foods. Their religion holds that those creatures and plants voluntarily gave themselves to the people at the time of creation as gifts so that humans can sustain their lives in this world. The Great Plains region furnishes another example, where big-game hunters evolved into complex buffalo-hunting cultures with a rich set of rituals, songs, ceremonies, and powers related to Father Buffalo. The plant life of the prairies also deeply shaped the cultures of the Plains Indians.49
My Pawnee ancestors were deeply influenced by the plants and animals of the prairie.50 Corn, cedar, tobacco, sweetgrass, and sage are sacred plants that help humans get in touch with higher powers. Mother Corn (Atira’ rikiisu) is especially holy, since she was given to the Pawnee by the Evening Star at the time of Creation.51 The Pawnee not only revered the buffalo and other animals, but also grew crops and gathered many wild roots, berries, and plants for food, medicine, and an amazing variety of other purposes in Nebraska. During this period, animals and plants frequently communicated with the Pawnee through a power given to them by a mysterious star that stands in the northeast quadrant of the heavens—a male star named Upirit raarihuuru katitkusu (Big Black Meteoric Star).52 The Creator placed him there to hold up that portion of the sky and gave that celestial being a wonderful power—to let animal and plant spirits communicate with human beings. Through Black Star, plants could tell people their secret properties and prairie animals could teach their ceremonies and give mystical powers to Pawnee medicine men.
Examples of these mysterious communications abound in Pawnee oral traditions.53 In one, the Crows (Kaa-ka’, in Pawnee) took pity upon a man and shared their mysterious powers to find buffalo. They gave the Pawnee the Crow-Lance Society powers in hunting and war.54 In another, a female kernel of corn lying upon the ground, cried out to a man. She taught him that Mother Corn is sacred and how to place it in holy bundles, because Mother Corn represents Mother Evening Star on Earth.55 Even roots communicated directly to the Pawnee, through the power of the Black Star, to tell humans where to find them and what their secrets are.56 The animal spirits were said to reside in animal lodges in the Loup and Platte rivers—places where deserving Pawnee could go to receive knowledge and power about the spiritual side of life directly from the animal beings of the Great Plains. Our Young Dog Dance, Doctor Dance, and all society dances were given to the Pawnee from the animals, along with the power to heal the sick.
Sound incredible? All encounters with the higher powers of the supernatural world are incredible and must be taken as an article of faith. These tribal traditions are no more incredible than the burning bush that spoke to Moses as the voice of God. Most religious folks accept that encounter as true. Likewise, it is true that animals and plants can and have talked to those who listen in Native North America. Until recently, many scientists believed that animals were incapable of thought or communication—simple automatons lacking the ability to think, feel, or communicate; however, today, many are amazed as they learn more about animal intelligence.57 Indians could have told them that animals are relatives, with powers of their own, who are capable of thought, feeling, and communication to those who listen. The same can be said for roots, berries, certain trees, and plants of power, all of whom must be approached and gathered in a sacred way in order to receive their benefits and blessings according to tribal teachings. This indigenous belief system comprises what Huston Smith terms the “primal world” in Native North America and the spiritual way of life he classifies as “primal religion,” and this belief system forms the metaphysical background for the Peyote Religion at issue in the Smith case.
The Peyote Road Is a Profound Primal Religion in Native North America
One of the most remarkable primal religions found in the United States is the Peyote Religion of the NAC. It is often called the Peyote Road by practitioners, because it teaches a spiritual way of life with all of the theology, values, moral code, and ethics needed to fulfill a meaningful life—making it a complete religion in every respect. Though little known to most Americans, the history, ceremonies, teachings, beliefs, practices, and importance of this religion are well-documented.58 It may be the oldest, most continuously practiced religious observance in the New World that is still in use today. Dating back ten thousand years, the Peyote Religion dwarfs most other world religions in antiquity.59 A leading researcher, the late anthropologist Omer C. Stewart, observed:
We can assume with assurance for millennia they used [peyote] in the same manner they used it in early historic times: as a medicine to be taken internally or as a poultice on sores; to foretell the future; to find lost objects; as a stimulant in strenuous activity, such as travel or war; and in group religious ceremonies when supernatural aid was sought through group participation. At the time of the Spanish Conquest of Mexico and our first written records of its use, peyote was known far beyond its natural habitat [along the Rio Grande and in Mexico].60
One early account of the discovery of peyote comes from the Aztecan people of central Mexico, where legends says that long ago a pregnant woman went berry picking and got lost from her band.61 The woman gave birth to a child and lay helpless in the hot sun after she cut the navel cord. With buzzards flying overhead, the weakened woman heard a voice: “Eat the plant that is near you, for it is life and a blessing for you and your people.” After eating the plant, strength returned immediately to save the woman and child. Upon returning, she told her relatives about the plant, thus beginning the Native peoples’ long relationship with peyote as it is known today.
Over the centuries, many tribes discovered this plant of power. The religious use of peyote spread northward. Each tribe has stories about how the people received this religion. One in my own family says the Pawnee received it from great Comanche Chief Quanah Parker, in the 1890s. During that period, according to this family tradition, Pawnee priests and medicine men still had their traditional powers obtained from centuries of living on the open prairie. When Quanah came to the Pawnee reservation, he told the religious leaders, “I have brought you a new religion. Let me show you my powers.” Being polite, they invited Quanah to their medicine lodge. “Wait a minute,” they said, “then come into the Earth Lodge.” When Quanah entered the lodge bringing the peyote medicine and sacred instruments of the NAC, he saw the Pawnee priests assembled—but they were no longer men. Reclining on the first mat, he saw a grizzly bear; on the second mat lay a wolf; on the third, a mountain lion; and next lay a wildcat. The Earth Lodge was filled with animals! “Come on, guys,” Quanah exclaimed in sign language, “We do not do that in this religion!” Then, all at once, the animals turned back into men! And the Pawnee doctors told Quanah, “Okay, now show us your new religion.”62 In this remarkable way, our people received the Peyote Religion. It continues to be prevalent among the Pawnee and many other tribes to this date.
The early Spanish conquistadors observed Peyotism among Indians in Mexico. Spain tried to stamp it out, but the religion survived the medieval cruelties of the Spanish Inquisition. Despite nearly a hundred prosecutions over the next two hundred years, it persisted and spread. Peyote converged on the southern plains in the 1890s, during the early reservation period. By the early 1900s, the Peyote Road was firmly established on most Oklahoma reservations. It helped tribes cling to cultures that the government sought to destroy. During that troubling period, missionaries and Indian agents chipped away at tribal heritage by day. But at night, the language, songs, dress, and ceremonies returned through clandestine peyote meetings held in tipis, safely hidden from the authorities. To combat persecution in Oklahoma, tribal elders chartered a church in 1918 to make their religion more recognizable to lawmakers. They named it the NAC. By 1990, over 250,000 Indians followed the Peyote Road in scores of NAC chapters, located in twenty-four states.63 The importance of the NAC in their lives is evident in the personal testimonials provided in One Nation Under God: The Triumph of the Native American Church (1996).64
Throughout all the years that I had lived on earth, I now realized that I had never known anything holy. Now, for the first time, I knew something holy.
Vegetation and trees, the rivers, sunshine, the moon in the night, thunder and lightening, birds flying in the air—it seems like God made this world and left it just the way he made it. And we found this Medicine. I’ll be ninety-four on my next birthday, so if there’s an example of someone who’s been using Peyote all his life, I guess I’m he. I feel that I would die for this Medicine, it has meant so much to my life. My people use it and find spiritual guidance in it.
We talk to the Medicine in the same way that we talk to trees and rivers.
In the first creation God himself used to talk to people and tell them what to do. Long after, Christ came among the white people and told them what to do. Then God gave us Indians Peyote. That’s how we found God.
When you eat it, your mind turns to the Great Spirit. In one song I can learn what might take twenty or twenty-five years in school.
All of the important things that life requires are woven into the ceremony. The entire ceremony is symbolic of our dependence on and use of things in our environment: fire, water, plants, and animals.
During the meeting the singing sounded lovely, the Indian dresses looked very beautiful, and in the morning the sun rose on the best world I ever saw. I felt young and good in every way.
There are certain times in a meeting when you can feel a presence. A feeling comes in the meeting—it’s a holy feeling, the presence of the Spirit of God that’s in the midst of these people. You feel that presence. It makes you want to pray deep in your heart.
About that time in the meeting the old roadman told the story of our origins. It seemed like I lived right through it. To understand it I had to live through it.
Our music, our songs, the ceremonial objects that we use in our tepees—these are all good for us Indian peoples. I’m going to stand up for our Indian ways—that’s number one. I’m going to continue to teach my children and grandchildren our Indian culture and try to be a role model for them. Our religion is too beautiful, too refined, too rich to abandon. This is where I communicate with my Creator.
I don’t think that those who are not Native Americans can understand our Holy Sacrament. We Indians are close to fire and the fireplaces that protect the Medicine and its effect on our minds. The Medicine brings us closer to God the Spirit, who gives us good lives and good outlooks on the future.
We burn incense for purification, and we eat Peyote to come into communication with the Great Spirit. But we also have to have something to offer to the Great Spirit. He accepts our offerings through the ascending smoke of our sacred tobacco. That’s why it is so special for us. We try to keep the drum going during our sermons. We try not to talk too long, or pray too long. Just keep the heartbeat drum going. Then, through our Medicine, we have this spiritual experience.
The great beauty of the human race is found in the amazing ways that we reach for the heavens. One quarter of a million Native Americans are connected to the peyote plant through the profound religious ceremonies of the NAC. This is a remarkable display of connectivity to human religiosity in one of its earliest forms. They carry on one of the oldest religious traditions still practiced by the human race. Those who are not in tune with the Plant World may never completely understand primal religious beliefs and practices, much less the Peyote Religion. The central ritual observance in all-night NAC prayer ceremonies is the ingestion of peyote. This sacramental use is not dissimilar from other traditional cultures in aboriginal lands where hallucinogenic plants have been ingested for religious or healing purposes by tribal people for thousands of years.
While the Peyote Religion is little understood by the public, this unfamiliar faith is a bona fide religious tradition nevertheless. As such, it is entitled to the same respect and legal protections enjoyed by the better-known religions. The hallmark of religious tolerance—which is the cornerstone of a pluralistic society built upon individual liberty—is respect for every religion, especially unorthodox faiths not shared by the majority. A tolerant society recognizes that in the realm of religious belief “the tenets of one man seem the rankest error to his neighbor,” according to Cantwell v. Connecticut (1940), but the law nonetheless protects those differences as liberties necessary “for a people composed of many races and creeds.”65 The defining role of the First Amendment is to protect unfamiliar or unpopular faiths, since the majority in constitutional democracies rarely intrudes upon mainstream religion. One constitutional scholar observes:
One rarely sees laws that force mainstream Protestants to violate their consciences. Judicially enforceable exemptions under the free exercise clause [of the First Amendment] are therefore needed to ensure that unpopular or unfamiliar faiths will receive the same consideration afforded mainstream or generally respected religions by the representative branches.66
In the pre-Smith era, most courts protected the Peyote Road when Indians were charged with violating drug laws prohibiting peyote use. In the landmark case of People v. Woody (1964), three Navajo were arrested during a peyote ceremony and charged with illegal use of peyote.67 California claimed that peyote use was harmful to Indians and that a religious exemption for them would adversely impact the enforcement of state drug laws. Following a widely publicized trial, the Indians were convicted. On appeal, the California Supreme Court reversed their convictions and set them free. It ruled the First Amendment protects their right to use peyote for religious purposes. In a straightforward application of the law, the Woody Court found that the state’s case rested upon “untested assertions” and the Indians’ worship did not harm any compelling government interest.
We have weighed the competing values represented in this case on the symbolic scale of constitutionality. On the one side, we have placed the weight of freedom of religion as protected by the First Amendment; on the other, the weight of the state’s “compelling interest.” Since the use of peyote incorporates the essence of the religious expression, the first weight is heavy. Yet the use of peyote presents only a slight danger to the state and to the enforcement of its laws; the second weight is relatively light. The constitutional scale tips in favor of the constitutional protection.68
As a result, the Navajos were freed. In granting a religious exemption from the California law to protect their free exercise of religion, the Woody Court described the larger interests at stake:
We know some will urge that it is more important to subserve the rigorous enforcement of the narcotic laws than to carve out of them an exception for a few believers in a strange faith. They will say that the exception may produce problems of enforcement and that the dictate of the state must overcome the beliefs of a minority of Indians. But the problems of enforcement here do not inherently differ from those of other situations which call for the detection of fraud. On the other hand, the right to free exercise of religious expression embodies a precious 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 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 a desert Hogan near Needles, California.69
Woody is a classic example of American justice at its best. That landmark decision, which is solidly grounded in the First Amendment doctrine, was followed by other state courts in later years.70 Soon after the Woody case was decided, Congress passed the Drug Abuse Control Amendments of 1965 and in 1966 peyote was added to the list of controlled substances with an administrative exemption for the religious use of peyote by the NAC.71 Relying upon the federal Indian trust doctrine, the courts upheld the government’s power to accommodate the Peyote Religion through administrative exemptions and regulatory means, as necessary tools to protect minority religion in a tolerant society. In Peyote Way v. Thornburgh (1992), a federal court upheld the power of Texas and the Federal Drug Enforcement Administration (DEA) to grant religious exemptions from federal and state drug laws for the religious use of peyote by Indians in the religious ceremonies of the NAC and to regulate the harvest and distribution of peyote in Texas for Indian religious use.72 When non-Indians complained this was unconstitutional special treatment, the court upheld the system based upon the federal government’s trust relationship with Indian tribes, stating:
We hold that the federal NAC exemption allowing tribal Native Americans to continue their centuries-old tradition of peyote use is rationally related to the legitimate government objective of preserving Native American culture. Such preservation is fundamental to the federal government’s trust relationship with tribal Native Americans. Under [Morton v. Mancari, 417 US 535 (1974), non-Indians] are not similarly situated to…NAC [members] for purposes of cultural preservation and thus, the federal government may exempt NAC members from statutes prohibiting possession of peyote without extending the exemption to [non-Indians].73
The Peyote Way Court added that this Indian-only exemption, which was created under the federal government’s trust relationship with Indian tribes as a tool to protect their cultures, does not violate the Establishment Clause’s prohibition against the establishment of religion nor the separation of church and state requirement:
The unique guardian-ward relationship between the federal government and Native American Indian tribes precludes the degree of separation of church and state ordinarily required by the First Amendment. The federal government cannot at once fulfill its constitutional role as protector of tribal Native Americans and apply conventional separatist understandings of the establishment clause to that relationship…Thus, we hold that the federal 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.74
Unfortunately, the Woody line of cases was short-lived. It came to an end in 1990 with the Smith decision. Because Smith never disturbed the government’s legal power to voluntarily accommodate the Peyote Religion under Peyote Way’s federal Indian trust doctrine, that religion is protected today by legislative and administrative fiat, rather than as a constitutional right enforced by the courts.75 The courts’ retreat from the bulwark role envisioned in the Constitution when it came to protecting tribal religion is puzzling. How do we account for that retreat in a pluralistic society that still professes religious tolerance? The paths to the Smith mind-set are many. They will be explored, beginning with American religious history.
The Suppression of Native American Religion in the United States
Discrimination, like other forms of racism and human evil, can take many shapes. The dark side of religion is that age-old tendency toward intolerance, which sometimes takes virulent forms. This brand of discrimination can be pronounced, even in America, as explained by Justice William F. Murphy:
No chapter in human history has been so largely written in terms of persecution and intolerance as the one dealing with religious freedom. From ancient times to the present day, the ingenuity of man has known no limits in its ability to forge weapons of oppression for use against those who dare to express or practice unorthodox religious beliefs…[E]ven in this nation, conceived as it was in the ideals of freedom, the right to practice religion in unconventional ways is still far from secure…To…religious minorities, befalls the burden of testing our devotion to the ideals and constitutional guarantees of religious freedom.76
That shortfall in our mental makeup caused much of the human suffering, war, and misery found in world history. American Indians have not been spared from the forces of religious intolerance. That history of religious discrimination was described by Senator Daniel K. Inouye, chairman of the Senate Select Committee on Indian Affairs, in 1992:
Religious intolerance and suppression of tribal religions of Native Americans in the United States is not new. In fact, this form of discrimination has characterized the relationship between our indigenous population and newcomers from Europe for the past 500 years.77
The roots of American religious intolerance were planted long ago. One scholar traces the origins of Christian intolerance to the early struggles of this nascent religion to survive in a polytheistic world and to the rhetoric forged in the canonical scriptures to defend the Christian experience of monotheism.78 When Christianity was founded, the dominant religious system in the ancient world was polytheism. To survive, carve an identity, and justify its monotheistic outlook, the new cult asserted absolute truths and demonized the “false gods,” “false religions,” and “false prophets” of the day. In ancient times, conventional debate typically included slanderous attacks upon rivals, which were not necessarily taken literally in the Hellenistic culture.79 As a result of these historical circumstances and ancient rhetorical conventions, strong rhetoric of intolerance and theological absolutism found its way into the New Testament. Unfortunately, subsequent Christian readers took that language literally. They read the texts as “direct divine revelations expressing propositional truths about reality,” and not as “human writings generated by specific social and historical circumstances.”80 This misreading produced tragic consequences—the long history of Christian religious intolerance.
Whatever the root causes of intolerance may be, it is truly amazing how long it took for the Christian nations of Europe to move from base religious intolerance to bare tolerance and, finally, to authentic religious liberty and the attendant accommodation of religious differences that eventually took hold in twentieth-century Europe. That path was long and torturous, as described by one historian.
It cannot be denied that for more than a thousand years the history of Christianity was marked by intense intolerance and persecution of Jews and all religious dissenters, who were readily branded as “heretics.” It is no exaggeration to say that in the broad sweep of history more wars have been fought, more persecutions have been carried out in the name of religion than for any other single cause.81
Intolerance would also have dire implications for the peoples of the New World. In the Dark Ages, parochial notions that Christianity is the only true religion and that it is binding upon the rest of humanity took hold in Europe.82 Extreme claims were put forth by the papacy in Boniface VIII’s bull, Unam sanctam (1302), which declared: “It is altogether necessary for every human creature to be subject to the Roman pontiff.”83 In this medieval view, all other religions are inferior, if not barbarous, and should be replaced by Christianity. Much of early European history was driven by those ill-conceived ideas of religious intolerance and superiority.
By 1492, Spain was fresh from centuries of religious crusades against infidels for possession of holy places in the Middle East. It was an emergent nation filled with religious intolerance. The king expelled the Jews that year and unified Spain as a Christian nation by defeating the Moors and expelling the Muslims. The Inquisition, which lasted well into the 1800s, was in full swing in 1492. It used torturous means to rid Spain of undesirable religious influences. Heretics, Africans, Gypsies, and others faced persecution, imprisonment, torture, and death because of their spiritual beliefs. That gut-wrenching wave of religious persecution is darkly reminiscent of the medieval witch hunts that burned thousands at the stake in an effort to stamp out all vestiges of primal religion from Europe. As the evil handmaidens of intolerance, the Crusades, extreme papal claims, expulsions, witch hunts, and the Inquisition epitomize the dark side of religion. They spawned an especially virulent form of religious discrimination.
The history of European religious intolerance accompanied the colonists to the New World as their cultural baggage. It characterized their relations with Native people for centuries to come. Senator Inouye noted how the religious prejudices of early colonists became the foundation for relations with Native people:
In the minds of Europeans, tribal religions of the New World were inferior…Thus, it is not surprising—especially given Europe’s own heritage of religious discrimination among unpopular Christian denominations and against non-Christian world religions—that intolerance became a basic feature in the Pilgrims’ and other colonists’ relationship with the Indians. Indeed, although early settlers came to America to escape religious persecution, Old World prejudices were transplanted in the Colonies, where discrimination became commonplace.84
These attitudes are prominently reflected in the foundational documents of colonialism. They list the bringing of Christianity to the New World as one of the primary purposes of the colonies. The Papal Bulls of 1493 declare that indigenous people can easily be made Catholic. They expressly conveyed the hemisphere to Spain so Ferdinand and Isabella could convert Indians to the Catholic faith.85 Similarly, the royal charters that establish British colonies commanded the colonists to propagate Christianity among the North American “savages” who “live in Darkness and miserable Ignorance of the true Knowledge and Worship of God.”86
Nothing could be clearer: a central purpose of the American colonies was to convert Indians to Christianity. This imperial imperative overwhelmed the liberties later enshrined in the First Amendment for the nineteenth and most of the twentieth century. Apparently, those liberties were meant only for colonists, and not the Indians, since constitutional protection seemed to apply only to the Christian faiths during this period. Alternatively, the settlers did not see the tribal religions as religions at all and the idea of First Amendment protection did not even come up—nobody in the settler state therefore felt a tension between their religio-political values and their practices in dealing with Native religions. In any event, by the beginning of the twentieth century, colonization and the propagation of Christianity went hand in hand in the United States and other colonized lands as the age of imperialism reached its zenith around the world.87 As one religion scholar noted, “Nowhere does the name of God and justice appear more frequently than on the banner and shield of the conqueror.”88
Given these deeply rooted attitudes of pronounced religious intolerance and the use of the cross to colonize and rule the Indian tribes, it is not surprising that the practice of tribal religion would be in for hard sailing in the new republic. These attitudes and associated practices would usher in a shameful history of religious suppression carried out by the federal government, with help from fervent missionary groups. Historians have studied how the US government suppressed tribal religions in the nineteenth and twentieth centuries.89 They document a sixty-five-year period of overt government suppression, beginning with President Ulysses S. Grant’s Peace Policy in 1869, that lasted until 1934, when the commissioner of Indian Affairs John Collier lifted the ban on tribal religion and issued orders to protect Native American religious liberty and curtail government-sponsored missionary efforts. During this period, the government aimed at Christianizing Native America. The Christianization policy had two prongs, both of which were conducted in facial violation of the free exercise and establishment clauses of the First Amendment to the US Constitution.
The first prong promoted Christianity among the tribes and converted Native Americans with the active help and cooperative involvement of Christian churches. Working hand in hand with church groups, the government established Christianity among the tribes by (1) conveying Indian land to church groups to establish missions among the Indians, (2) proselytizing Indian youth in government boarding schools or church-run Indian schools operated at government expense, and (3) allotting Indian tribes among Christian groups who were appointed as Indian agents with complete power over the reservations for proselytization purposes.90 By these means, secretary of the interior Columbus Delano proclaimed in 1872 that “The missionary authorities have an entire race placed under their control, to treat with in accordance with the teachings of our higher Christian civilization.”91 These startling measures were, of course, a radical departure from constitutional principles unprecedented in the history of American church/state relations. Yet the Establishment Clause presented no obstacle to overt government entanglement with church groups, nor their joint efforts to establish Christianity among the tribes. This constitutional protection was ignored by government officials who felt it was okay to violate church/state prohibitions in Indian affairs. They simply assumed they had authority to install Christianity among the Indians. That prevailing attitude is reflected in the 1869 Report of the Board of Indian Commissioners:
The legal status of the uncivilized Indians should be that of wards of the government; the duty of the latter being to protect them, to educate them in industry, the arts of civilization, and the principles of Christianity…The establishment of Christian missions should be encouraged, and their schools fostered…The religion of our blessed Savior is believed to be the most effective agent for the civilization of any people.92
Government education was seen as a tool that “cuts the cords that binds [Indians] to Pagan life,” according to one superintendent in 1887, “places the Bible in their hands, substitutes the true God for the false one, Christianity in place of idoltry…cleanliness in place of filth, [and] industry in place of idleness.”93 As historian Limerick notes, nineteenth-century Americans were blinded by notions of religious superiority, and no thought was given to Native American religious liberty during this era:
For government officials as much as for missionaries, Christianity was so manifestly the right religion—indeed, the only religion with a claim on truth—that the question of religious liberty for Indians never entered their minds.94
Limerick explains the mind-set behind this prevailing prejudice, which seems so odd from a twenty-first-century perspective:
To nineteenth century white Americans, the First Amendment protected the exercise of religion, while what the Indians practiced was superstition, primitive rites, and peculiar customs—practices that, to the nineteenth century Anglo American mind, did not deserve the First Amendment’s guarantees of liberty.95
As a result, an unprecedented anomaly in church/state relations developed in American religious history in which an entire race was proselytized through the machinery of the government. Such a startling exception to settled constitutional principles in a democratic nation could only occur in a settler state intent upon stamping out vestiges of indigenous religion, as that conduct would never be tolerated if perpetrated against other minorities, then or now. Sadly, the courts upheld those singular practices in the rare instances when Native American church/state issues came before them, as previously discussed, in cases like In re Can-ah-couqua (1887).96 What else can a legal system do if its purpose is to sustain the system that is in place, rather than serve as a bulwark to protect personal liberty?
The second prong of the Christianization policy was much darker. It involved active government suppression of Native American religious practices through the unprecedented use of the law, incarceration, and raw military force. In 1883, secretary of interior Edward Teller promulgated the Code of Indian Offenses, which established a reservation criminal code and court system with the avowed goal to eliminate, once and for all, “heathenish practices” and bring about the end of Indian culture.97 Rule Four was a complete ban on the practice of tribal religion. It reads:
The “sun dance,” and all similar dances and so-called religious ceremonies, shall be considered “Indian offenses,” and any Indian found guilty of being a participant in any one or more of these “offenses” shall, for the first offense committed, be punished by withholding from him rations for a period not exceeding ten days; and if found guilty of any subsequent offense under this rule, be punished by withholding his rations for a period not less than fifteen days, or by incarceration in the agency prison for a period not exceeding thirty days.98
Rule Six banned the practices of medicine men and outlawed their powers, because the government feared medicine men would hinder the civilization and Christianization program. This infamous code was upheld in United States v. Clapox (1888), under the United States’ guardianship powers over Indian tribes.99 Clothed with this extraordinary power, the Bureau of Indian Affairs worked zealously throughout Indian Country until 1934 to suppress tribal religious ceremonies and ceremonial dances by arrests and other means.100 Troops were brought in to enforce the ban against the Ghost Dance, leading to the slaughter of nearly three hundred Sioux men, women, and children at Wounded Knee.101 That use of force was apparently condoned as legal, since no one was ever charged with murder or any other crime; but the mass killing at Wounded Knee was clearly illegal under the law of war, outlined in chapter six. Nonetheless, simply because the Sioux were worshipping a tribal religion on their own reservation:
The Hotchkiss guns were fired on the tepees, where the women and children were gathered, and “poured in 2-pound explosive shells at the rate of nearly fifty per minute, mowing down everything alive.” Most of the men were killed near the front of the camp, but the bodies of the women and children were scattered along a distance of two miles, evidence that many were killed while fleeing.102
This low point in American religious history shows the extreme government measures taken to suppress tribal religion in the “land of the free.” Religious genocide is frightening wherever it exists, but especially in a democratic nation.
In short, “the federal government’s efforts to convert Indians to Christianity became a cornerstone of its federal Indian policy,” according to Inouye, and “[a]s may be expected, government violation of Indian religious freedom in respect to the Establishment Clause was soon followed by an incursion on these freedoms alternatively protected by the Free Exercise Clause, which prohibits governmental intrusion on the practice of religion.”103 An administration report to Congress concluded in 1979 that separation of church and state was entirely disregarded in the government’s treatment of Indians.
That Christianity and federal interests were often identical became an article of faith in every branch of the government and this pervasive attitude initiated the contemporary period of religious persecution of the Indian religions. It was not, to be certain, a direct attack on Indian tribal religions because of their conflict with Christianity, but an oblique attack on the Indian way of life that had as its by-product the transformation of Indians into American citizens. Had a Christian denomination or sect, or the Jewish community, been subjected to the same requirements prior to receiving affirmation of their legal and political rights, the outcry would have been tremendous. But Indians, forming an exotic community which few understood, were not thought to be the proper subjects of this concern.104
John Collier lifted the outright government ban on tribal religion in 1934. However, serious government infringements continued well into the 1970s. Religious discrimination was firmly embedded in the public mind and the courts continued to describe Indian tribes as “savage.”105 Inouye observed that the history of religious discrimination continued long after 1934:
This ban was not lifted until 1934, more than one generation later. Unfortunately, our government still persisted in infringing upon tribal religious practices. Federal agents arrested Indians for possessing sacred objects such as peyote, eagle feathers, and they cut hair of Indian children. By authority of the federal government, these agents also prohibited school children from speaking their native languages, prevented native access to holy places located on public lands, destroyed Indian sacred sites, and interfered with tribal ceremonies.106
After hearings held in 1978, Congress finally recognized the need for a law to protect Native American religious freedom. To remedy this long-standing problem, Congress enacted the American Indian Religious Freedom Act of 1978 (AIRFA).107 This law sought to reverse the history of religious discrimination and suppression by establishing a new federal policy:
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.
The House and Senate committees that advanced this measure proclaimed:
America does not need to violate the religions of her native people. There is room for and great value in cultural and religious diversity. We would all be the poorer if these American Indian religions disappeared from the face of the earth.108
Although AIRFA was a landmark, it only announced a congressional “policy.” As such, AIRFA’s efficacy depended upon implementation and enforcement by all three branches of government. Regrettably, that support never materialized in the intervening years leading to Smith. In 1992, Inouye declared that the AIRFA policy proved unenforceable and inadequate:
[AIRFA] requires cooperation from all three branches of government in our system to effectively implement a Congressional policy. Unfortunately, such support was not forthcoming, and the enlightened attitudes expressed in the Act in regard to Indian religious freedom have never been effectuated. The federal courts have since ruled that this policy has no mechanism for enforcement.109
This checkered religious history demonstrates that Native Americans have shared a common fate with most indigenous societies. Since the dawn of the colonial era, the world’s indigenous peoples have suffered what amounts to religious genocide. That history springs from the dark sides of colonialism and religious prejudice. To colonize Indians, it was necessary to take their religion. That task was justified, if not mandated, by widespread religious intolerance and discrimination that animated policies of suppression carried out by settler states. This hostility raises a pressing question: can such nations adequately protect surviving tribal religions in the postcolonial era? If so, what social, structural, and legal changes will assure their survival in the modern world?
Policies alone will not strengthen the ability of primal religion to survive. It will take a fundamental social change to eradicate all vestiges of religious prejudice in every quarter, including the courts of the conqueror, and to extend the ideals and principles of religious tolerance to aboriginal religion. Those changes must be enforced by the courts through effective laws and legal doctrines with teeth. Professor Huston Smith provides an alternative, non-legalistic, and more humanistic answer to the question how industrialized peoples should comport themselves toward the primal religions in what seems the short time they have left on the planet. This gentle scholar believes we were mistaken in our assessment of tribal people: “Primal peoples are not primitive and uncivilized, much less savage. They are not backward; they are different.”110 He advises us to put aside prejudices and stereotypes and simply listen.
[P]erhaps we can live out our numbered years of planetary partnership in mutual respect, guided by the dream of one primal spokesman that “we may be brothers after all.”If we succeed in doing this, there is still time for us to learn some things from them. [As John Collier] said of his charges: They had what the world has lost: the ancient, lost reverence and passion for human personality joined with the ancient, lost reverence and passion for the earth and its web of life. Since before the Stone Age they have tended that passion as a central, sacred fire. It should be our long hope to renew it in us all.111
Unfortunately, neither paradigm has been achieved in most settler states. Hope does glimmer, however, in the United Nations Declaration on the Rights of Indigenous Peoples (2007). It beckons each nation to strengthen its laws and social policies to protect religious freedom of the world’s tribal peoples. As will be seen, Smith shows the need for the UN human-rights standard.
Given this religious history, the path to the Smith judicial mentality can be seen through the lens of conquest and colonialism in a settler-state society. In this view, propagating Christianity was the avowed purpose of the British colonies. To occupy the continent, they first had to pacify and dominate Native America. No conquest is complete until the foundation of Native culture is undermined and the people are thoroughly demoralized. In colonialism, rulers supplant, marginalize, and transform the aborigines. Founded upon these principles, it was necessary for the settler state to suppress tribal religions. The legal system could either support or curb the government’s suppression of primal religion occurring right under the nose of the courts. Since the goal of the legal system is to make everything “perfectly legal,” it had to foster suppression, or at least turn a blind eye. In this view, Smith and Lyng merely culminated the settler-state process set in motion by conquest and colonization. Irrespective of the root causes, the fate of the Peyote Religion would be determined by the courts in Smith against the ugly backdrop of religious discrimination.
The Judicial Climate for Smith Was Foreboding in the 1980s
In the late 1980s, additional factors were brewing in the marble chambers. They created a hostile judicial climate, as the Indian religion cases were making their way to the Supreme Court. Four of those factors that set the stage for the oral argument in Smith are mentioned here.
First, modernity—it supplies the contemporary social context for protecting religion in a distinctively secular world. Secularization is the cultural process by which the area of the sacred is progressively diminished and pushed aside. In traditional times, religion was the primary pathway to truth about the world around us. This human condition existed for thousands of years before the rise of the industrial world. Religious liberty was therefore considered a bedrock social principle in the 1700s, when the Constitution was written. But today, religion is just not that important!
By the late 1980s, significant social changes had diminished its overall importance in American life. The courts booted religion out of the schools in the watershed Scopes Monkey Trial in 1925.112 Increasing numbers of secularized folks began to wonder if god was dead by midcentury, when Julian Huxley pronounced, “it will soon be impossible for an intelligent or educated man or woman to believe in god as it is now to believe that the earth is flat.”113 By the end of the century, the sacred was largely banished from public life.
Progressive secularization remade hometown America. It relegated religion to the margins of society. Smith analyzed how science and technology colonized religion in the universities, strongly influenced mass media, and replaced religion with scientism as the primary path to truth and knowledge about reality. Not to be confused with science, scientism asserts that science is the only, or best, path to knowledge capable of describing all of reality, with authority over all other interpretations provided by religion, philosophy, mystical or metaphysical, or humanistic explanations.114 The legal system’s contribution to this secularization process is to help push religion to the side. The Smith decision illustrates the role of law in this process by stripping away constitutional protections for the freedom of worship and placing that liberty firmly under the control of secular political institutions.115
Though many Americans profess to hold religious beliefs, they are largely practiced in the private sphere, leaving the scientific worldview to hold sway in the public arena. In this climate, it becomes far too easy for the courts to dismiss the value of religion and subordinate worship to the secular interests of the state, no matter how trivial. Judges can pronounce doctrines that strip protection for unorthodox religions or religious minorities without ruffling many feathers. Courts might even shrink the constitutional scheme for protecting religious liberty, as done in Smith—after all, the Great Spirit cannot be proven by science.
In short, secularization created an insensitive, if not hostile, social climate for deciding Smith. In this environment, almost any governmental interest, real or imagined, can trump a fundamental religious interest. Modernity and the unprecedented growth of the state during the twentieth century have increased conflict between the secular and the sacred. As one leading constitutional scholar puts it, the state now represents the greatest threat to religious liberty:
The most important religious conflict in the United States is not the conflict of one religion against another, but of the secular against the religious. On one side are all those people who take religion quite seriously, for whom religion still makes a substantial difference in their lives. On the other side are all those people who do not take religion seriously, who cannot imagine why these superstitions persist, and who cannot understand why religious minorities are demanding special treatment from the secular administrative state.116
As government regulation of human affairs has become more detailed and pervasive, the Supreme Court notes that religious ways of life run “into conflict increasingly with requirements of modern society exerting a hydraulic insistence on conformity to majoritarian standards.”117 How that conflict is resolved by the legal system fundamentally shapes our society.
The second factor that contributed to a hostile judicial climate for the Indian religion cases was the Supreme Court’s trend toward restricting American religious liberty in general. Beginning in 1987, the trend toward eroding religious liberty began in the dark corners of American prisons. In two back-to-back cases, the Supreme Court carved out an exception for prisons to the traditional legal test for protecting religious liberty—the compelling-state-interest balancing test, which had been applied for decades to protect American worship. In its place, the Court created a new, lax reasonableness test that granted judicial deference to wardens. That watered-down test effectively stripped prison inmates of any meaningful free-exercise protections. Turner v. Safley (1987) involved prison restrictions on correspondence and the right to marry. The Turner Court announced the new test for prisons: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”118 This test was soon applied to Islamic worship in O’Lone v. Estate of Shabazz (1987).119 The weak reasonableness test empowers wardens to infringe upon religious freedom at will, based upon almost any justification.120 By allowing restrictions on worship based on speculation, rather than truly important prison concerns, O’Lone opened the door for unwarranted state intrusions upon religious liberty.
History teaches that once noxious legal doctrines are espoused for one group, they begin a life of their own and are hard to contain. Thus, whenever one segment of society falls outside the ambit of the law, others soon follow. Shielded from public view, the crack in individual freedom that began in American prisons went largely unnoticed by the public. It quickly widened. We cannot easily separate ourselves from any segment of society, however marginalized, because everyone’s freedoms derive from the same source, the US Constitution.121 The late Justice William Brennan prophetically warned that differential constitutional treatment in the prisons places the nation on a slippery slope:
Once we provide such an elastic and deferential principle of justification [for impinging upon religious freedom in prisons], “[t]he principle…lies about like a loaded weapon ready for the hand of any authority that can bring forth a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes.”122
American Indians would shortly become the next victims in the erosion of free-exercise rights.
The third factor contributing to a hostile judicial climate was the rise of judicial conservatism to dominance in the Supreme Court under the leadership of the late Chief Justice William H. Rehnquist. In the late 1980s, the conservative axis of the Reagan Supreme Court assumed control of the Court. The familiar champions of individual rights from the Warren and Burger Courts were replaced with a slew of conservative Republican appointees: William H. Rehnquist, Anthony Kennedy, Antonin G. Scalia, and Sandra Day O’Connor. By the late 1980s, the civil libertarian wing of the Supreme Court had dwindled to three dissenters: Thurgood Marshall, William Brennan, and Henry Blackmun. They comprised an articulate, but largely ineffectual minority on the Court. Thus comprised, the Supreme Court would seriously weaken the body of law protecting American religious liberty in a string of cases decided between 1987 and 1990, the very time when Smith and Lyng were working their way through the legal system. The conservative axis would hardly be sensitive to religious minorities, especially during America’s war on drugs, waged by state law enforcement officials. These justices would breathe new life into the court of the conquerors.
The fourth factor was Justice Scalia, a 1986 Reagan appointee. As a hard-core conservative, Scalia distrusted the ability of federal judges to balance individual religious conscience against the majority will expressed in laws. As part of the Court’s new majority, he could use the marble chamber as a bully pulpit to advocate his ideology. As Smith and Lyng made their way to the Court, the junior justice was poised to restrict the reach of the First Amendment. He would write a majority opinion in Smith with such a pint-sized picture of the First Amendment that an entire religion with 250,000 members would fall through the cracks.
Mr. Smith Goes to Washington (Twice) and Gets a Spanking
I made my second trip to the Supreme Court in this particular controversy in 1989. The case entailed a conflict between a protected liberty—religious freedom—and law enforcement over the use of peyote by Galen Black and Alfred Smith, a white man and his Indian sidekick. The two were alcohol counselors who got fired for ingesting the cactus plant in a religious ceremony. After they were fired, both men applied for unemployment compensation benefits and were denied by the State of Oregon. Oregon’s drug laws made peyote use illegal despite the fact that Indian peyote use is one of the oldest religious practices in the hemisphere.123 Further, since 1963, a string of Supreme Court cases made it clear that denial of unemployment compensation for persons fired for religiously motivated conduct impermissibly burdens their freedom of religion.124 Relying on that precedent, the disgruntled counselors appealed the decision, asserting that it infringed upon their religious freedom.
In a straightforward application of the law, the Supreme Court of Oregon agreed with Smith and Black.125 In so doing, it joined several other state courts in protecting the religious use of peyote in the ceremonies of the NAC under the First Amendment to the US Constitution.126 The stage was thus set for review by the US Supreme Court. It sprang into action at the insistence of Oregon’s attorney general, David B. Frohnmayer—who was notable in the 1980s for combating religious minorities like Indian Peyotists, Islamic prisoners, and sects from other lands.127 In this instance, he sought to rid Oregon of the Peyote Religion in the name of the drug war. Using that rubric, he would argue in court that peyote is a drug, its use is criminal conduct, and any exemption to Oregon’s criminal law for the religious use of peyote would undermine America’s war on drugs.
We managed to dodge a bullet on that first trip to the Supreme Court.128 When confronted with the Oregon Supreme Court’s decision protecting this indigenous religious practice under the First Amendment, the incredulous Rehnquist Court bounced the entire case back to the Oregon court, asking it: “Did you really mean to protect this religion?”129 On remand, the state court answered, “Yep, we really did,” and it reaffirmed its holding. After efforts to end the controversy at that stage broke down, the State successfully petitioned the Supreme Court to review the case a second time.130 The return of Smith to the Rehnquist Court in the wake of the Lyng decision raised mounting concerns among many onlooking NAC leaders. Though the interests of their 250,000 members were at stake, the NAC did not control the case, and neither Smith nor Black belonged to the NAC.131
So now, we were back in the marble chambers once again. And Justice Scalia was pounding Craig J. Dorsay of Oregon Legal Services—the two men’s new attorney—with hostile questions.132 Like a bull terrier, the jurist grabbed him by the pant leg and would not let go of the hard-pressed attorney: “Should the First Amendment allow human sacrifice by the Aztecs?”133 Chiming in, Justice Sandra Day O’Connor asked: “How about marijuana use by a church that uses that as part of its religious sacrament?”134 The oral argument was not going well. As concerned NAC elders watched the courtroom drama unfold, their worst fears were being confirmed: their ancient religious way of life was about to become an innocent victim of the drug war in the landmark case of Employment Division v. Smith (1990), one of the ten worst Indian law cases ever decided.135
In a 6-3 decision, a majority of the Smith Court held the First Amendment does not protect the sacramental use of peyote in religious ceremonies of the NAC. The Court went to extraordinary lengths to reach this result, going far beyond the issues necessary to decide the case. Its stunning decision departed from settled First Amendment jurisprudence and weakened religious liberty,
First, Scalia’s opinion carved a huge exception to the First Amendment by placing all criminal laws and civil laws beyond the reach of its protection. As Justice O’Connor pointed out in her concurring opinion, such a narrow reading renders First Amendment protection virtually meaningless, because “only the extreme and hypothetical situation in which a State directly targets a religious practice” is covered.136 Second, Smith discarded the compelling-state-interest test used by courts for decades to protect American religious liberty.137 According to Justice Scalia, that test is too stringent. It would court anarchy, since “many laws will not meet the test.”138 To avoid that specter, he scrapped the test. (After all, we cannot allow religion to threaten the most powerful government on Earth.) This restructuring of the law sees religion as a threat to a well-ordered society that must be reined in, controlled, and dominated by the secular. Smith’s new rule weakening religious liberty was a crowning victory of the secular over the sacred. Third, distrusting the ability and power of judges to carve exceptions to statutes to protect religious liberty, Scalia got the courts out of the business of accommodating religion altogether. Declaring religious diversity a “luxury” that our nation cannot afford, he told religious groups to go to Congress, not the courts, to protect their right to worship.139 Like Justice White in Lone Wolf v. Hitchcock (1903), Scalia believed lawmakers will “do the right thing” once freed from judicial oversight.140 Scalia wrote:
It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.141
Under Scalia’s hard-edged judicial philosophy, if you are a religious minority, tough luck—move to a more tolerant region.142 In one of the rarest displays of insensitivity in recent court history, Scalia’s opinion contained no discussion about the NAC or the importance of the peyote sacrament to Indian religious practitioners, and it did not even give lip service to the importance of religion in American life at all. The dissenters, however, voiced those values and were deeply concerned about the impacts of the decision on Native America. Justice Brennan stated that those impacts “must be viewed in light of the federal policy reached in reaction to many years of religious persecution and intolerance—of protecting the religious freedom of American Indians,” and he warned that the Court’s failure to apply well-worn rules to Indian religion claims will render the First Amendment “merely an unfulfilled and hollow promise.”143
Needless to say, the majority opinion created a firestorm of criticism. Dissenting justices ranted, legal scholars raged, and all of organized religion rushed headlong to Washington to lobby lawmakers. In the frenzy, nearly everyone forgot about the Indians directly harmed by the unpopular decision. They would have to address their plight on their own. That is exactly what they did. Left behind in the dust, a grassroots movement began brewing on Indian reservations when Rueben Snake received word about the Smith decision.
Back in Washington, four justices in Smith believed the majority went too far. The majority’s approach “dramatically departs from well-settled First Amendment jurisprudence,” wrote Justice O’Connor, “appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty.”144 She would not have granted talismanic effect to all criminal and general civil statutes to automatically restrict religious liberty, even in a drug war.145 Above all, four justices rejected Scalia’s vision of a nation that disfavors religious minorities as an “unavoidable consequence” of its system of government and leaves accommodation of their religious liberty to the political process. O’Connor wrote:
[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. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah’s Witnesses and the Amish…“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”146
The dissenters vehemently rejected the idea that preservation of religious liberty in a pluralistic society is a “luxury.”147 Justice Blackmun stated:
I do not believe the Founders thought their dearly bought freedom from religious persecution a “luxury,” but an essential element of liberty—and they could not have thought religious intolerance “unavoidable” because they drafted the Religion Clauses [of the First Amendment] precisely in order to avoid that intolerance.148
Three justices suspected the ruling might be a shortsighted overreaction to drug-war hysteria fanned by Attorney General Frohnmeyer, especially given the paucity of evidence actually offered to support his arguments. Because Oregon failed to present a compelling state interest in prohibiting the religious use of peyote in their view, they would have ruled in favor of Black and Smith under the traditional legal test normally applied in such circumstances.149 The state’s failure to justify its ban was troubling, because bare religious intolerance “harkens back to the repressive federal policies pursued a century ago” to suppress tribal religions.150 The 6-3 decision reflected the deep division that would characterize the Supreme Court throughout the remainder of the twentieth century.151
Scholars condemned Smith as “one of the most unpopular decisions in the Court’s recent history.”152 They variously described the ruling as being inconsistent with the original intent, meaning, and text of the First Amendment;153 as giving unwarranted, talismanic effect to criminal laws;154 as a troubling use of precedent “bordering on the shocking”;155 and as the case that destroyed “traditional concepts of individual liberty.”156 With one voice, they condemned Smith for wreaking havoc on the law and undermining religious freedom.157
After 1990, lower courts had to deny constitutional protections that most Americans once took for granted. One court pulled a decision protecting Hmong religious beliefs against disturbance of the dead through autopsies, stating: “It is with deep regret that I have determined that the [Smith] case mandates that I recall my prior opinion.”158 As similar cases mounted, religious liberty shrunk to tiny, unrecognizable proportions. One disgruntled judge ruefully observed: “Smith does not alter the rights of prisoners; it simply brings the free exercise rights of private citizens closer to those of prisoners.”159
When Pilgrims and Puritans began to complain, Congress took notice of the growing crisis in religious liberty. Mainstream religion and civil libertarian groups began working nights and weekends, pounding down the doors of Congress demanding a new law to overturn Smith and restore stringent legal protections for American worship. This coalition drafted the Religious Freedom Restoration Act (RFRA) bill, but that measure contained no protection for the NAC. In their rush to Congress, RFRA Coalition leaders shunned the NAC as too controversial, telling the Indians, “Form your own coalition and get your own law passed.” So two coalitions were formed—one was a Native coalition led by the late Hochunk tribal leader Reuben Snake and the NAC groups, and the other was the RFRA coalition for everyone else. Two bills were presented to Congress and both passed.160 When President Bill Clinton signed RFRA into law in 1993, he noted the need for an additional law to protect Native American religious freedom:
The agenda for restoration of religious freedom in America will not be complete until traditional Native American religious practitioners have received the protection they deserve. My administration has been and will continue to work actively with Native Americans and the Congress on legislation to address this issue.161
Sometimes, the coyote laughs last. Unfortunately for the RFRA folks who shunned the Indians in their drive to Congress, the RFRA was subsequently declared unconstitutional by the Supreme Court in 1997 as applied to the states. But the Indian law, which is described next, passed in 1994 and remains in full force and effect today.162
Mr. Snake Goes to Washington in the Battle to Overturn the Smith Decision
Have you ever worshipped with fear of a knock on the door? Without legal protection in the wake of Smith, 250,000 NAC members became subject in twenty-two states to arrest, incarceration, and discrimination solely because of their form of worship.163 One NAC leader stated, “When we want to pray, we have to look up to see if someone is watching us. That means we pray in fear.”164
The injustice of Smith slapped many Native Americans in the face. One woman tearfully decried the decision:
It’s hypocritical, this Supreme Court Decision against our Church. I have many relatives who served in Desert Storm. We prayed for them regularly. One of my cousins, a quiet man who was brought up in our Church, ran one of the computers that fired missiles in that war. For him to defend his country like that, and then have his country forbid him to pray—pray in the way he believes, which is the only way you can pray sincerely—it’s not right.165
Alienation engulfed one lifelong NAC elder, a Korean War veteran:
As I understand things, the Constitution of the United States guarantees that we all have certain human rights, among which is the right to worship as we deem right. But it has worked out that everybody seems to have these rights except Indians. That’s the part I don’t understand.166
Returning veterans from Iraq were outraged to find their faith endangered:
Now I find that my Church is in trouble. When I entered military service I took an oath. I raised my right hand and said, “I am an American fighting in the armed forces, which protect our country and our way of life. I am prepared to give my life in its defense.” I lived up to that. I laid my life on the line, in Operation Desert Shield/Desert Storm and the highway of death. I think I deserve the right to my religion—the right for it to continue the way we want it to without outside interference.167
From among these voices, a leader arose with the Great Spirit by his side—a man named Reuben Snake. In the book he coedited with Huston Smith, One Nation Under God: The Triumph of the Naive American Church (1996), he introduced himself with these remarks:
I am a Hochunk; other people refer to us as Winnebagos. My English name is Reuben Snake, but I also have an Indian name, Kikawunga, which means a great deal to me, for it is a very old traditional name for my clan of the Winnebago people. On Easter Sunday morning, 1939, my grandmother’s uncle, my great-grandfather, baptized me into the Native American Church and christened me Kikawunga, a name that is remarkable not only for its antiquity but for its connotations, for it means “To Rise Up”…I came to see that in giving me that name my great-grandfather was commissioning me to help resurrect the heritage of my people.168
Snake bore both names with dignity and they defined his mission in life.
I have tried to fulfill that commission, particularly as it relates to the Native American Church. There is a great deal of chaos and confusion in today’s world, but God’s truth (as it comes to us through our Church) is eternal and always available to us…Sitting on the ground tokens humility, and my name, Reuben Snake, makes me more conscious of that virtue than usual. Snakes are not the most exalted of creatures; they are earth-bound, they hug the earth. In playful moments, I sometimes introduce myself as Reuben Snake, your humble serpent.169
History will show that Reuben Snake lived up to all of his names. In the dark days following Smith, he put together the largest coalition of NAC organizations ever seen and led it to the halls of Congress.
Snake would devote the rest of his life to the enormous task of overturning a Supreme Court decision. During this crucial period in Native American history, he provided inspirational spiritual guidance to propel a tribal grassroots movement to Washington, DC, in an unlikely quest to overturn Smith against all odds. Snake was uniquely qualified to lead the people in this quest for religious freedom. He was at once an accomplished orator, a profound thinker, fearless warrior, humorist, religious leader, educator, diplomat/statesman, writer, ambassador, singer, and humble servant, as well as a revered spiritual leader of the NAC.170 Despite these gifts, Snake walked in deep respect while meeting the challenges of his day. All of these attributes would be needed by this humble man to transcend differences and provide vision for a people in need. Yet, Snake rose to the challenge as a truly great leader for any race in any age.
Each one of us is endowed by the Creator with his spirit. The spirit that makes you stand up and walk and talk and see and hear and think is the same spirit that exists in me—there’s no difference. So when you look at me, you’re looking at yourself—and I’m seeing me in you.171
During this crisis, the “humble serpent” became Indian Country’s Martin Luther King Jr., Nelson Mandela, and Chief Joseph—all coiled up into one remarkable Snake.
The story of how the NAC overturned Smith through Congress’s enactment of the American Indian Religious Freedom Act Amendments of 1994 is chronicled in various sources, but it is not well known to most Americans.172 From a legal standpoint, it is far more complex to secure passage of landmark legislation than to litigate a case, because there are few rules to follow in Congress and one must convince hundreds of lawmakers and their staffs, as opposed to a single judge, of the merits of one’s cause. The political process can also be daunting, because adversaries often have more resources and political pull than Indians, a distinct advantage that was normally present in the modern era of federal Indian law. What chance would Snake’s unorthodox faith have in this arena?
Immediately after news of the Smith decision arrived in Indian Country, Nebraska NAC leaders asked Snake to take the lead in overturning the ruling. He rose to the challenge, put aside his other commitments, and devoted his remaining years to that task. His first move was to establish the Native American Religious Freedom Project, staffed by his adopted brother, attorney James Botsford, an experienced Native rights veteran in First Amendment battles. After uniting the NAC organizations, Snake’s project participated over the next two years in a national grassroots campaign, along with the rest of Indian Country to address the crisis precipitated by Indian religion cases. Snake’s project joined with Chairman Peterson Zah of the Navajo Nation and Patrick Left Hand of the Salish and Kootenai Tribes of the Flathead Reservation to establish an unprecedented national coalition that powered the human rights movement from Indian reservations to Washington, DC. The movement marched through six congressional field oversight hearings, the making of a movie, and the establishment of alliances with swelling numbers of new friends along the way.
In early 1993, omnibus legislation was introduced by Senator Inouye, chairman of the Senate Select Committee on Indians Affairs. Senate Bill 1021 addressed the full array of religious problems created by the Indian religion cases, including the lack of legal protection for the Peyote Religion. That comprehensive legislation stalled in 1994 due to mounting opposition over the sacred-sites provisions. As the death of that vehicle seemed imminent in late 1993, a core team came together to develop a strategy for the enactment of stand-alone peyote legislation. This team consisted of the unprecedented NAC coalition led by the NAC of North America, tribal leaders, Navajo Nation lobbyists, NARF attorneys, and Botsford. Armed with strategic advice from Franklin Ducheneaux and Pete Taylor, two talented Beltway veterans during the modern era of Federal Indian law, the team charted the course toward passage of the law in 1994. The plan focused on House legislation developed in consultation with Congressman Bill Richardson (D-NM), the current governor of New Mexico, who was then chairman of the Native American Affairs Subcommittee. A separate bill would avoid the probable death trap of multiple committee referrals in the House, and it could move quickly if supported by the DEA and the Department of Justice.
Once the elements were in place, the process moved swiftly. In the Second Session of the 103rd Congress, Chairman Richardson introduced House Bill 4230 on April 14, 1994. This followed a March 16, 1993, hearing that laid the foundation and secured support from the DEA and Justice Department. A hearing on the bill was held on June 10, when NAC, DEA, administration, and Indian Country testimony was received. With speed that amazed Beltway insiders, the bill advanced through the committee levels and passed the House on August 8. After a number of anonymous Republican holds on the bill in the Senate were lifted, as a result of NAC lobbying over the August recess in the home states of the holdouts, the measure passed the Senate in September and was signed into law by President Clinton on October 6, 1994, in the last hours of the 103rd Congress—at a pivotal time, just before the political window of opportunity closed. The Democrats would lose control of the Congress and the White House for years to come, when the Capitol would be run by a mean-spirited bunch, preoccupied with war abroad and with little sympathy for Indian causes.
The law expressly overturned the Smith decision, legalized the religious use of peyote in all fifty states, and prohibited discrimination against Indians on account of this religious practice. It was passed pursuant to Congress’s protectorate powers as the guardian and trustee of American Indian tribes—powers emanating from Worcester v. Georgia (1832).173 In establishing stringent statutory protections for this ancient religion, the law brought to an end a prolonged epic struggle of NAC members. Its passage gave rise to victory celebrations throughout Indian Country in 1994, as relieved NAC elders counted their blessings. As the dark cloud of Smith was laid to rest, Abraham Spotted Elk Sr., president of the NAC of Wyoming, exclaimed: “It’s a great day for members of the Native American Church to finally be able to pray without fear.”174 Frank Dayish Jr., president of NARF’s client, the NAC of North America, proclaimed: “It is right and just that the First Americans will finally have the freedom to worship with the peace and dignity they deserve.”175
The American Indian Religious Freedom Act Amendments of 1994 are a Magna Carta for the NCA—a law with teeth. Beyond that, the law helps reverse a shameful religious history, repudiates intolerance, and carries the nation beyond the legacies of colonialism and conquest into a new era. It demonstrates that aboriginal religious freedom can be protected in a nation with colonial roots. As such, it signals the way to a time when America sheds the trappings of a settler state and becomes a more just society that is native to place. Looking back, the courts of the conqueror may have done the nation a favor in Smith. That is certainly true for the Peyote Religion. One Omaha elder, the late Elmer Blackbird, suggested that the NAC write a thank-you letter to the Supreme Court stating:
We were unhappy about it at the time, but in the long run you did us a favor. With all the problems that seem to be coming our way, we were beginning to wonder if we should continue to worship in our Native American ways. You sent shockwaves through our Church. The threat your decision posed—that it might do us in—made us realize how much the Church means to us. It mobilized our energies. We went to work, and in four years won back our rights through Congress. So thank you, Supreme Court. Your blow against us turned out to be a blessing in disguise.176
Reuben Snake’s untimely death in 1993 came during the latter legislative stages of the movement he set in motion. The fallen inspirational spiritual leader was sorely missed by NAC leaders who carried the campaign to its successful, historic conclusion. While Reuben did not live to see the enactment of the law, his spirit undoubtedly guided its passage from the Spirit World. Shortly after his death, I strode to the witness table in the congressional hearing room. In halting fashion, I began my testimony in support of the bill:
Mr. Richardson: Counselor Echo-Hawk, my thanks to you for all the work you have done on this issue. Probably no one—at least in this city and country—probably knows more about this issue than you do. I will ask you to please proceed. Remember that your statements are part of the record, and I look forward to your testimony.
Mr. Echo-Hawk: I appreciate those kind remarks this morning. Good Morning to you, sir, as well as to the members of the subcommittee. I am a staff attorney with the Native American Rights Fund and I am very pleased and deeply honored to appear before the subcommittee today on behalf of the Native American Church of North America. I am very pleased also to offer testimony in support of the HR 4230 on behalf of the Native American Church of North America…177
The thoughts of most witnesses in the hearing room drifted to Reuben, as it was impossible to ignore his spiritual presence. His sage wisdom filled the room. Even now, many years later, Reuben’s teachings ring true for all of us…
I believe that the foundation of all of our lives should be our spirituality. No matter what one plans to do with one’s life, one should develop a spiritual relationship with the Creator and the Divine Creation. To do so means one has to listen from the elders…They’re going to say things to us and show us things that are vital for us to develop our spirituality.178
Reuben A. Snake’s primal legacy transcends his day. His lessons in life, leadership, and love for the Creator are valuable for every people and age. They came from that small cactus plant that grows only in the Rio Grande valley, and nowhere else in the world. The beloved Humble Serpent is missed, but his legacy shines the light, as we stride toward a more just society.