Smoke Signals
May 1990
PageS
Peyote decision hurts all Native Americans' Freedom
By Ed Goodman
On November 6th, 1989, NAPOLS attorney Craig
Dorsay argued before the Supreme Court of the United
States in a case named Employment Division v. Smith.
The case involved two members of the Native American
Church, who were discharged from their jobs because
they had used peyote as part of religious ceremonies for
the church. The state attempted to deny the two men
(one of whom was Alfred Smith, a Klamath tribal
member) unemployment benefits, on the argument that
since they were discharged for an act that was suppos
edly illegal under Oregon law, they were not eligible for
unemployment benefits. The state's action touched off a
lawsuit that went to the United States Supreme Court,
the highest court in the land, two separate times.
The central issue of the lawsuit was whether or not the
state of Oregon could declare the use of peyote illegal
for members of the Native American Church, for whom
the use of peyote in strictly controlled religious ceremo
nies is as central to their religous practice as communion
is to Catholics. The Church members argued that the
First Amendment of the United States Constitution
prevents the state from outlawing the use of peyote by
Native American Church members in their ceremonies.
The First Amendment of the Constitution states, in part,
that the government shall pass no laws that abridge the
"free exercise" of religon. Mr. Dorsay argued the case,
urging the Supreme Court to affirm that making the use
of peyote illigal for Native American Church members
abridged the right of church members to the "free
exercise" of their religion.
On April 17th, 1990, the Supreme Court released its
decision in the Smith case. The court held, by a majority
of six to three, that the First Amendment does not
prevent the state from outlawing the use of peyote by
Native American Church members. In an opinion signed
by five members of the Supreme Court, written by
Justice Antonin Scalia, the Court overturned the legal
test that had existed for fifty years in freedom of religon
cases; thus in effect making it much easier for states to
outlaw practices that are central to religons outside the
mainstream.
The old test had required the state to prove to the
court that applying a law to a particular religon was
necessary to achieve the purpose of the law and protect
the public interest. The burden on the state was high,
since it had to justify such law as it applied to the
minority religon. The new test set out in the Smith
decision makes it much easier for states to infringe on
religious rights. If the law at issue is "neutral on its face,"
in other words, applies equally to everyone, then it
satisfies the First Amendment. This new test will have
Taming Spr
It's just not possible to avoid potential allergen. With
some planning, however, you can celebrate spring with a
drier nose. Here are 12 tips that could make this spring
a little easier:
Avoid staying outdoors between 5 a.m. and 10 a.m.
when pollen levels are highest.
Keep windows closed in your home as well as in your
car while driving.
"Keep cool but not cold, because "supcrfreezing"
indoor temperatures may aggravate allergy symptoms.
Ten degrees cooler than outside is ideal. And be sure to
keep air conditioners and humidifiers scrupulously clean
or you may end up blowing allergens around your home.
Wear glasses or sunglasses outdoors to protect your
eyes from pollen.
Kecp your lawn mowed short because most clipped
grasses can't bloom (which is what releases pollen
spores). Wear a mask while you are mowing your lawn
or gardening.
profound effects on religious minorities around the
country.
For an example, look at the peyote case. Under the old
test, the state would have had to argue that applying the
law outlawing peyote to Native American Church
members was necessary to achieve the purpose of the
law. Under that test, the Oregon Attorney General Dave
Frohnmayer had to argue that fighting the state's "war
on drugs" required that Native American Church
members' use of peyote during religious ceremonies
could not be exempt from the prohibition on illegal
drugs, including peyote, even though use of peyote was
central to their religious practice. Under the new test, all
the state would have to show is that the law outlawing
peyote is neutral on its face, in other words, applies
equally to all people in society, and that if it happened to
affect one religious minority disproportionately, that was
too bad.
Ironically, although the Smith decision is a disaster for
the First Amendment, the outcome was not too bad for
Mr. Dorsas clients and the Native American Church.
As written the decision has very little connection with
the arguments made by either Mr. Dorsay or Attorney
General Frohnmayer. Indians, peyote, the Native
American Church, and Mr. Dorsals clients are men
tioned only in passing in the majority opinion. While
Justice Scalia wrote that a constitutional exemption for
the religious use of peyote is required, it is permissible!
In those states where the religious use of peyote is
permitted, it may continue. Because of the attention
Indian religious practices receive in Congress, it is likely
that the Church will be able to secure a federal legisla
tive exemption. Other minority religions, however, may
be in deep water.
Two more points. Justice Scalia said that the Oregon
Supreme Court ruled that the religious use of peyote is
illigal under Oregon law. This is incorrect. The Oregon
Court noted that the statute on its face makes all use of
peyote illigal, but expressly refused to decide whether
the statute would hold up under the Oregon
constitution. The Oregon Court also held that the
criminality of peyote use is irrevant to a determination
of unemployment benefits. Therefore, even if the State
now asks for the benefits back, Mr. Dorsas clients
should be able to win under state law. At the moment, it
is unclear what the next legal step will be.
The bottom line of the Supreme Court decision is this:
states are not required by the United States Constitution
to exempt the religious use of peyote from their statu
ses outlawing drug use. However, the states may make
such exemptions if they wish. The 23 states in which
such exemptions exist will not be affected by the decision.
ing Allergies
Shower and shampoo if you think you've been
exposed to pollen. Wash your hands thoroughly and
rinse your eyes with warm water every time come
indoors.
Dry clothing and bedding inside, or in a drier, rather
than outdoors where they will collect pollen.
Use allergen-proof casings for pillows, mattresses,
and box springs. Vacuum all casings frequently and
store nothing under the bed.
Avoid rugs or carpets in your house; use only wood or
linoleum flooring.
Avoid pets altogether, or at least work out a compro
mise whereby pets are restricted to certain rooms -never
the bedroom.
A void cigarette smoke whenever you can, and '
certainly don't smoke yourself.
Avoid alcoholic beverages during pollen seasons; they
contribute to swelling of blood vessels in nasal passages.
Poncas Seek Recognition
LINCOLN, Neb. - Members of the Ponca Indian
Tribe, which lost federal recognition in 1962, arc trying
to have the tribe restored as an Indian nation.
The tribe lost recognition when the government during
the 1950s and 1960s under the Termination Act of 1945,
terminated 109 tribes in an effort to force American In
dians to relocate in urban areas.
Since the tribe is not recognized by the federal govern
ment it does qualify to participate in government
programs offered other tribes who are federally recog
nized. Ponca Indians living on the reservation do not qualify
for health care benefits or college education loans
available to other Indians.
Nebraska's Democratic senators, J. James Exon and
Bob Kerry, have introduced legislation restoring the
Ponca's tribal status.
Job Announcement
Title: Community Health Representative
Reports to: Community Health Supervisor
Location: The Confederated Tribes of Grand Ronde
P.O. Box 38
Grand Ronde, Oregon 97347
Salary Range: $14,000 to $16,500 annually, full time.
Indian Preference is applied. .
Responsibilities: To assist in elevating the health status
of the members of the Confederated Tribes of Grand
Ronde.
Duties:
To assist the members who have chronic and acute
disease by coordinating health services, and resources.
.To insure the continued good health of prenatal'
patients, infants and children.
- Deliver health education and disease prevention
presentations to the membership.
To coordinate health services and resources for the
membership who have requested assistance and for the
membership who the Tribal health program has identi
fied in-need of assistance.
- Maintain patient record keeping practices to assure
quality assurance and comply with reporting require
ments. - Transport patients in accordance with the tribal health
transporting guidelines.
- Conduct home visits to analyze the progress of the
health status of the individual.
- Demonstrate, instill and promote patient self-care
practices.
- Participate in on-the-job training and training semi
nars, etc.
- Serve as an advocate for patients concerning their
health care.
- Other duties as assigned.
Qualifications:
- A minimum of 1 year experience working in a care
taking capacity, i.e.: home health care, nursing home,
etc.
- A CPR and First Aid Card
- Ability to read and understand material to assist
patients.
- Knowledge of Indian culture and ability to work with
Indian elders.
- Motivated to assist and help patients resolve health
access obstacles.
- Driver's License
- Good communication skills to advocate for patients.
- Willing and ability to travel in all weather conditions.
Closing: May 15, 1990