A Theological Inventory of American Jurisprudence: 1st Amendment, Legislative Response to Smith

There were probably insurmountable political obstacles that made it prudent for the Coalition for the Free Exercise of Religion (CFER) to limit itself to creating a statutory platform for free-exercise strict scrutiny, and this is probably why the RFRA failed to adequately address the needs of the Native American Church. 2 One of CFER’s biggest political obstacles was probably the ignorance, arrogance, and bigotry of ordinary Americans towards Native religions. One of the biggest obstacles to addressing such bigotry is getting the bigot to admit that he’s a bigot, and then to allow the alien religion to exist without being afraid of it. Towards that end, it’s necessary here to address American Indian issues in general, even if it’s in a very limited way. But since Smith was the fire that motivated the CFER into action, it’s especially important for us to examine the legal status of peyotism, and the general legal status of American Indians.

The refusal to allow an exemption from controlled substance laws for the Native American Church could conceivably be founded on a variety of different premises. All such premises deserve some scrutiny. Because of limitations in time and space, we’ll only examine a couple of such moral arguments. It’s important to examine motives and the premises that spring therefrom – motives for repudiating a religion – in order to know whether the motives / premises are good. It’s important to know whether they’re good or bad because such information is crucial to understanding valid human law.

Moral Arguments:

A moral argument in favor of repudiating the Native American Church by making it illegal and refusing to exempt it from neutral, generally applicable laws against peyote, might be put forward by Christians, something like this: Peyote is a hallucinogen. Hallucinogens are used in witchcraft and sorcery. Scripture clearly teaches that sorcery is evil. We therefore believe that all hallucinogens should be illegal, without any exceptions or exemptions. — Our response as Christian adherents to a specific biblical hermeneutic: God split humanity into numerous nations, tribes, families, and tongues in response to human iniquity. Now we have a mandate to minister God’s grace through Jesus Christ to all nations, tribes, families, and tongues. Through common grace, before ever hearing of Jesus Christ, God’s truth has been trumpeted to all people (Psalm 19:1-4; Romans 1:20). All people thereby have some grasp of some truth. When we minister in God’s special grace through Jesus Christ to nations, tribes, families, and tongues, it’s not only foolish, but also irrational and unscriptural for us to demand that such nations, tribes, and families abandon the truth of their culture in order to accept the truth of Jesus Christ. Such a demand is foolish because it fails to acknowledge that God operates in nations, families, tribes, and cultures through common grace as well as special grace. Furthermore, He operates in both forms of grace through individuals. He operates on individuals through the renewing of the mind, as well as through the renewing of the spirit. Introduction of the truth of Jesus Christ and His divine law to a nation, tribe, family, tongue, culture, etc., is inevitably a process of renewing the truths embedded in nation, tribe, family, etc., with the truth of Jesus Christ and His divine law. History and personal experience show any observer that the process of such mind-renewal / culture-renewal can be arduous. 3 When arrogant, ignorant outsiders impose their biases on this process, it makes the renewal process that much more difficult. The fact is that there is no conclusive evidence either in Scripture or outside of Scripture, to prove conclusively (i)that peyote is used only in sorcery, and (ii)that it has no scripturally reliable use outside of sorcery. So no one has any business imposing that bias on anyone else through secular human law.

A moral argument against exempting the Native American Church from neutral, generally applicable laws against peyote, might be put forward by non-Christians with an argument like this: Because of the drug laws, nobody else can use peyote, so why should Indians be exempted from laws against using peyote? — The easy way to answer this question is like this: Because Congress designed the drug laws with exemptions for Indian use of peyote, from first enactment of such laws. This easy answer begs the question: Why did Congress (via DEA) create the exemption? Answer: Because Indians have a special status in American jurisprudence, and anthropological studies prove conclusively that NAC is a genuine and vital aspect of Native culture. Of course that begs another question: Why do Indians have a special status? Answering that question correctly is crucial to establishing the context of this free exercise crisis. So what follows is (1st)a brief, chronological overview of the status of Native Americans, (2nd)a brief, chronological overview of the legality of peyote consumption before the American Indian Religious Freedom Act Amendments (AIRFAA) of 1994. 4

Legal Status of American Indians:

In Thomas Jefferson’s Second Inaugural Address, he tells the nation that free exercise "is placed by the constitution independent of the powers of the general government", meaning that religion exists outside the scope, purview, and jurisdiction of the general government. 5 Two paragraphs later, Jefferson "laments that ‘aboriginal inhabitants of these countries’ have been misled by those among them who ‘inculcate a sanctimonious reverence for the customs of their ancestors’ and teach ‘that their duty is to remain as their Creator made them’". 6 This attitude expressed by a President is a vignette of what Americans almost universally thought during the de facto Protestant establishment, specifically: We believe in religious freedom for ourselves. But it doesn’t apply to you natives. — The de facto Protestant establishment engaged in explicit, un-Christian mismanagement of relations with American Indians. It was an exposition of non-Indian arrogance and abuse. If Jefferson cared genuinely about free exercise, then, as leader of the general secular social compact, he would not, as a public official, have openly expressed his bias for one religion over another.

Now that the above generalization has been articulated, the most obvious place for this theological inventory to start an examination of Indian status is in the Bible. To do so, it’s critical to understand, (i)that all people, including American Indians, are created with the imago Dei (Genesis 9:6); (ii)that all people are subject to the Genesis 9:6 mandate against bloodshed; and (iii)that after God divided humanity into numerous nations, tribes, families, and tongues (Genesis 10:1-11:9), He continued lavishing common grace on his fallen creatures (Psalm 19:1-4; Romans 1:20). With this said, and with the hermeneutical prologue as a biblical foundation for this inventory, it’s possible to examine Indian status from the Constitution’s perspective, as long as the Constitution is understood by way of the hermeneutical prologue’s metaconstitution. The Constitution mentions Indians in three places: Article I § 2 cl 3 ("excluding Indians not taxed"); Article I § 8 cl 3 ("The Congress shall have Power . . . To regulate Commerce . . . with the Indian tribes"); 14th Amendment § 2 ("excluding Indians not taxed"). "Indian tribes" and Indians that are "not taxed" clearly had a status different from ordinary American citizens in the original intent of the framers (and also in the 14th Amendment). In all subsequent American jurisprudence, the Commerce Clause is generally understood to be the basis for the general government’s special treatment of Indians.

According to the definition of social compact, Indian tribes and nations were / are composed of jural compacts, ecclesiastical compacts (narrowly defined), and ecclesiastical compacts (broadly defined), like all societies. But as in most societies, compacts are poorly defined within the specific tribe / nation. Since there was no distinction articulated between religious and secular social compacts, within such tribes / nations, such tribes / nations were by default religious social compacts. In contrast, the general government articulated a claim in the establishment and free exercise clauses that it was, in effect, a social compact that acts as an umbrella over multiple religious social compacts. At the time of the ratification of the Constitution, the States were largely religious social compacts, based on their charters. At that time, by way of adoption of establishment and free exercise clauses similar to the Constitution’s, the States were generally changing their statuses as religious social compacts towards being secular social compact. In effect, the States were trying to be both religious and secular social compacts. This is obvious by way of the following facts: (i)The States generally adopted religion clauses in their constitutions similar to the general Constitution’s religion clauses. (ii)The States continued exercising religious police powers. Because both the States and the general government failed to clearly distinguish the nature of the religious social compact from the nature of the secular social compact, and to confine themselves strictly to one or the other, both the States and the general government were jurisdictionally dysfunctional. In contrast to these facts, American Indian tribes and nations were inherently religious social compacts, evidenced by the fact that none of them ever volunteered to be social compacts that encompass multiple religions. They may have been jurisdictionally dysfunctional religious social compacts, but that dysfunction doesn’t change their fundamental status as religious social compacts. It merely means that within their loosely defined religious social compacts, jural sub-compacts, narrowly defined ecclesiastical sub-compacts, and the broadly defined ecclesiastical sub-compacts existed in largely unarticulated form. The non-Indian social compacts had similar lack of internal articulation. But there is a huge difference between social compacts that presume to encompass multiple religions and social compacts that only presume to encompass a single religion. The extent to which Indian tribes / nations volunteered to be religious social compacts under the general umbrella is extremely difficult to measure, largely because coercion has marked almost the entire 500-year history of Indian / non-Indian relations.

In 1789, the Indian agents who were appointed to act as liaisons between the general government and Indian tribes were made functionaries of the War Department. This says clearly that Indian social compacts were considered foreign, and potentially inimical. In 1790, Congress passed the "Indian Trade and Commerce Act". This act placed virtually all interactions between Indians and non-Indians under the control of the general government. It delineated boundaries with Indian territory, regulated trading with Indians, made delicts perpetrated by non-Indians against Indians a crime under general jurisdiction, and left delicts perpetrated by Indians against Indians in Indian territory under Indian jurisdiction. — From the perspective of the global covenant, this act was as close to perfection as America has ever gotten in defining its relationship with American Indians. Since regulation of commerce, as we know it, is inappropriate for a secular social compact, it was inappropriate in this act. That was the most outstanding problem with it. The act largely recognized Indian sovereignty. We say "largely" instead of "fully" because it didn’t allow Indians to execute justice against non-Indians who were suspected of perpetrating delicts against Indians. But other than this, Indian tribes were legally almost as sovereign as other foreign nations, according to the words in this act. 7

In 1817 Congress passed the "Indian Country Crimes Act". This act reiterated the posture towards delicts established by the 1790 act. It left Indian-on-Indian delicts, perpetrated in Indian territory, under Indian jurisdiction. In it, the general government again took jurisdiction over delicts perpetrated by non-Indians against Indians. It reiterated tribal sovereignty. 8

In 1823, the nation’s feudal conception of land ownership manifested itself in Johnson v. McIntosh. 9 In this unanimous decision, Chief Justice Marshall "held that the principle of discovery gave European nations an absolute right to New World lands. Once established, Native Americans had only a lesser right of occupancy that could be abolished. . . . He . . . declared that a conquered people’s rights to property could not be applied to Native Americans because Indians were ‘fierce nomadic savages’ (p. 590).". 10 In other words, this case held that the general government held legal title to native lands by way of the "doctrine of discovery". This doctrine is an extension of the claim to eminent domain, a feudal posture taken by monarchs towards their dominion, i.e., towards all the land over which they claimed geographical jurisdiction. 11 This doctrine held that the government that discovered a piece of land automatically had title to it. Land-hungry non-Indians considered Indian tribes to be collections of savages who had no government. Indian claims to land were therefore conveniently irrelevant. The customs by which they ordered their social interactions were also conveniently negligible. The supreme Court therefore ruled that Indian "rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil . . . was denied by the original fundamental principle, that discovery gave exclusive title to those who made it." 12 — Thus the commerce clause here combined with feudal concepts of land ownership to lay a contrived foundation for massive land theft. 13

With the legal road conveniently paved with the supreme Court’s rationalizations, Congress passed the "Indian Removal Act" of 1830. This act mandated the removal of all Indians from east of the Mississippi to west of the Mississippi. 14

In 1831 the supreme Court ruled in Cherokee Nation v. Georgia: The Cherokees sued Georgia for enforcing laws and policies that were forbidden by the general Constitution, and which thereby threatened Cherokee sovereignty. The opinion identified Indians as neither citizens, nor independent nations. They were identified as "domestic dependent nations". The Court claimed that the relationship between Indian tribe and general government "resembles that of a ward to his guardian". — The correct relationship between an Indian tribe and the general government is the same as the relationship between a religious social compact and a secular social compact, respectively, where each operates by consent. But since Indian social compacts consisted mostly of unwritten – and perhaps unarticulated – customs, it’s reasonable that the general government would be extra-careful in its relationships with Indians. But they neglected to take such care. In fact, the supreme Court in essence said this: We intend to steal all your land and destroy your culture. But we don’t want posterity to think we were criminals. So we’re going to make you wards of the State who will receive special benefits from us. We intend to execute major takings against you, and you’ll have to be satisfied with the paltry benefits that we give as just compensation. — A year later, in Worcester v. Georgia, the supreme Court reiterated this "trust relationship" by clarifying to Georgia that the general government, not the State, had jurisdiction over Indian land.

In 1834, by way of the "Indian Intercourse Act", Congress allocated land claimed by Mexico in what would later be Oklahoma, Kansas, Nebraska, Colorado, and Wyoming, to be Indian Territory. This act officially ended the more benign policies that started in the 1790 "Indian Trade and Intercourse Act".

There were numerous Indian wars and broken treaties between 1824 (when the Indian Office was officially created in the War Department) and 1849 (when the Indian Office was moved from the War Department to the Department of the Interior, and was renamed to the "Bureau of Indian Affairs"). Even so, the migration of the BIA from War to Interior is consistent with the change in status of Indian tribes from sovereign nations to "domestic dependent nations". Wars and treaty-breaking by invaders was continuing when the "Homestead Act" was passed in 1862. The latter act opened land previously allocated to Indians to non-Indians for settlement.

More wars and broken treaties occurred between 1862 and the passage of the "Indian Appropriation Act" in 1870. By way of this act, Congress established that it would thenceforth refuse to make treaties with Indians. By adopting this policy, Congress was in essence claiming that Indian tribes were no longer really nations. The general government’s dealings with Indian nations would thenceforth be by way of general statutes and executive orders. In essence Congress was claiming that Indians were such disabled wards that their consent was negligible. This was consistent with the policy of national consolidation / repudiation of the compact theory of government, that was adopted during the War Between the States. Now not only was the consent of ex-slaves and ex-secessionists negligible, but so was the consent of Indians. Thenceforth, they would be forced to do whatever government wanted them to do. Even so, the treaties ratified up to 1870 were lawfully and often legally recognized. Ample evidence in recent decades proves that these treaties are still viable, at least when they are not subjected to the fiat powers of the fickle "federal" legislature. — A major discrepancy exists in this claim, between the Anglo-American conception of land ownership and the American Indian conception of land ownership. According to the Crusoe economics that’s rudimentary in the hermeneutical prologue, neither the American Indian nor the Anglo-American conception is correct. Both must be massaged significantly in order to get to a conception of land ownership that properly honors natural rights, and is thus viable.

In 1880, Congress established the "Civilization Regulations". These essentially outlawed native religions and ceremonies, and made leaving the reservation without government permission a crime. These regulations existed until 1936. The supreme Court in Ex Parte Crow Dog contrived partial moderation of this oppression. An Indian, Crow Dog, killed another Indian on a reservation. A "federal" court found Crow Dog guilty. Crow Dog appealed to the supreme Court based on the contention that the "federal" court lacked jurisdiction. The jurisdictional claim was based on tribal sovereignty that had been recognized as early as 1790, in the "Indian Trade and Intercourse Act". The Court found in Crow Dog’s favor, thereby acknowledging tribal sovereignty, at least within this limited context.

In response to Ex Parte Crow Dog, Congress passed the "Major Crimes Act" in 1885. This act modified the tribal` sovereignty expounded by the Court in Ex Parte Crow Dog. It did so by giving the general government original jurisdiction over certain heinous crimes – each of which being what we call a gross delict. It thereby left the tribes with original jurisdiction over subtle delicts and contract disputes. It thereby continued to recognize an element of tribal sovereignty. — In 1886 the Major Crimes Act was challenged in United States v. Kagama. The supreme Court upheld the Major Crimes Act and Congress’s power to pass it. In the majority opinion, the Court reiterated that Indian tribes are wards of the general government. It acknowledged that the general government had a duty to protect Indians from the hostile non-Indians by whom they were surrounded. — From the perspective of the global covenant, Indian communities, as religious social compacts, have original jurisdiction over gross delicts as well as subtle delicts and contracts. An umbrella jural society would take jurisdiction over bloodshed committed on tribal territory only when the tribal social compact showed itself incompetent to do so, or chose to be deferential to the outside jural society. Since religious social compacts are not streamlined to focus exclusively on jural issues, it’s reasonable that tribes might admit a lack of capacity with regard to some delicts. But it’s not appropriate for such an umbrella to make an a priori assumption of incompetence. That a priori assumption of incompetence is precisely what the general government was making when it insisted that Indians were wards of the State. That insistence on the ward status is comparable to putting sane people into mental hospitals.

In 1887 Congress passed the "General Allotment Act" (a.k.a. "Dawes Act"). In this act Congress allocated to the President the authority to carve reservations into 160-acre and 80-acre portions, distributing the portions to the people on the reservations, and encouraging Indians to accept these portions as their private, non-tribal farms. Any excess land was to be sold by the Secretary of the Interior to non-Indians. "The federal government was to hold title to the land in trust for 25 years, preventing its sale until allottees could learn to treat it as real estate." 15 In other words, the general government would hold legal title to this Indian land, allowing Indians to have equitable possession, and this arrangement was intended to exist until Indians adopted the feudal approach to land that was a cornerstone of American jurisprudence. 16 — In 1898 Congress passed the "Curtis Act". The Curtis Act terminated through coercion the practice among tribal governments of refusing allotments. It would be 1934 before such oppression ended by way of the repeal of the Dawes Act.

In Lone Wolf v. Hitchcock (1903), "the Supreme Court recognized a near-absolute plenary congressional power over Indian affairs, virtually exempt from judicial oversight.". 17 In this case the "Kiowa and Comanche sued the Secretary of the Interior to stop the transfer of their lands without consent of tribal members". 18 In essence the Court responded like this: If we believed you were fully human, we would acknowledge that what Congress is doing is nothing less than extortion and grand larceny. But we don’t. Congress either agrees or considers you perpetual prisoners-of-war. Either way, they have plenary power over you, and we’re not going to do anything to help you. In this post-Civil War world, consent means nothing in government affairs. Anyone who dares question the authority of the exalted nationally consolidated sovereign will be treated like cattle, also known as wards of the mega-state.

In 1906 Congress passed the "Burke Act". This act changed the point at which the general government would grant citizenship to Indians from the time of the allotment to the time that legal title was transferred to the Indian. It also empowered the Secretary of the Interior to decide when Indians that had equitable possession of allotted land had "adopted the habits of civilized life". 19 Allotments owned by such "civilized" Indians were removed from the government’s "trust", and title was transferred to the Indian. — From the perspective of the global covenant, this was essentially the situation: General government to Indian: Regardless of whether you are a citizen or not, we will treat you like cattle. If you are cooperative cattle, we will give you legal title to your land, and we will grant you the privileges and duties of citizenship. If you don’t cooperate, we’ll give you neither title nor citizenship.

In 1924, Congress passed the "Indian Citizenship Act". With this act Congress gave automatic citizenship to all Native Americans. Even so, many Indians preferred to remain exclusively tribal members.

In 1934, Congress passed the "Indian Reorganization Act". This act was accompanied by repeal of the Dawes Act. It prohibited new allotments and thereby ended the hemorrhage of land from Indian possession. The act was intended to promote tribal self-government by encouraging tribes to write tribal constitutions.

In 1953, Congress started the "termination era", via "House Concurrent Resolution 108" (67 Stat. B132). 20 This was a process of terminating the "trust" / guardian-ward relationship between the general government and Indian tribes. Terminated tribes automatically became subject to State laws. Their lands were usually sold to non-Indians. Before termination was ended, Congress had terminated over 100 tribes – generally the smallest and least powerful. 21 — In termination, Congress essentially said to the tribes, Now that we’ve stolen your land and sucked the marrow out of your culture, we’re throwing you to the dogs. — In addition to termination, Congress passed Public Law 83-280 in 1953. 22 This law removed tribal lands from the general government’s original jurisdiction in five States, allowing such States to have original jurisdiction. It also indicated that any State could assume the same jurisdiction through proper modification of State law.

In 1968, Congress passed the "Indian Civil Rights Act". This was essentially the incorporation doctrine applied to Indian reservations. It was also a revision of Public Law 83-280. This revision required States to acquire tribal consent before extending "any legal jurisdiction over an Indian reservation". 23 What a novel idea!

In 1970 President Nixon persuaded Congress to formally end the termination policy that it started in 1953. In 1975 Congress passed the "Indian Self-Determination and Education Assistance Act". Regarding Indian status, the crux of this act was a declaratory commitment by the general government to maintain the "trust relationship" between itself and Indians. In essence, this act said this: We have stolen most of your land, and we have almost totally ruined your cultures. We’re sorry. We’ve been rotten guardians to you. We’re not going to throw you to the dogs. From henceforth, we intend to be good stewards of our relationship with you. This guardian-ward relationship between the general government and the tribes will not end until you choose, out of your own strength and good health, for it to end.

In 1978 Congress passed the "American Indian Religious Freedom Act" (AIRFA). 24 The 1880 "Civilization Regulations" had been in effect until 1936. They were aimed specifically at destroying Indian religions. The AIRFA of 1978 was implicitly an attempt at remedying the damage done by the 1880 act. But the AIRFA had no enforcement provisions, and was therefore more a declaration of policy than an enactment of positive law. 25

Under the 1968 Indian Civil Rights Act, "federal courts came to review matters central to tribal self-government, including . . . proper qualifications for tribal membership". 26 But in Santa Clara Pueblo v. Martinez (1978), the supreme Court opined that Indian tribes are "‘distinct, independent political communities retaining their original natural rights’ in matters of local self-government". 27 The supreme Court thereby essentially vacated its presumed jurisdiction over issues that are primarily tribal. It established that "the Court did not have the right to interfere in tribal self-government issues.

Tribal sovereignty was defined further in United States v. Wheeler (1978) "The controlling question" in this case was "the source of an Indian tribe’s power to punish tribal offenders, i.e., whether it is a part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government that has been delegated to the tribes by Congress" (435 U.S. 313, synopsis at (a)). The Court’s opinion was that "The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." (435 U.S. 313, Justice Stewart’s opinion, Part III-A).

In Bowen v. Roy (1986) the supreme Court decided a case that’s important here both because it’s a free exercise case and because it’s relevant to defining Indian status. Members of the Abenaki Indian tribe were receiving welfare from the State of Pennsylvania. It was an entitlement program under which "federal" statutes required States to use Social Security numbers. These tribal members sued the State because they wanted to receive the benefits without use of Social Security numbers. "They contended that the requirement was a violation of the exercise of their religion because they could not control the state’s use of the number, and, according to their faith, ‘Control over one’s life is essential to spiritual purity’". 28 This case essentially sends the following message to Indians: If you want to receive welfare benefits that non-Indians receive, then you will be treated with the same disrespect with which we treat non-Indians. Indians lawfully receive special benefits. If you don’t want to fall into the same traps that everyone else falls into, thereby inviting us to treat you not merely as special wards, but as branded cattle, then stick to your special benefits and don’t ask for these others. But of course we know that we have polluted your special benefits with the same encumbering numbers with which we pollute non-Indian religions. But that’s too bad. We care little to none about the American Indian Religious Freedom Act of 1978.

Two years later the Court rendered another abnegation of the American Indian Religious Freedom Act of 1978. This was also both a free exercise case and an Indian status case. This case arose when three Indian tribes in northern California challenged a Forest Service plan to build a paved logging road through sacred land. In Lyng v. Northwest Indian Cemetery Protective Association (1988) the "Court . . . agreed that the government’s plans would devastate the traditional belief systems of the Yurok, Karok, and Tolowa tribes; but it . . . said the government could carry out its plan". 29 O’Connor wrote the majority opinion. The free exercise claimants in Lyng relied not only on free exercise jurisprudence, but also upon the American Indian Religious Freedom Act (AIRFA). 30 O’Connor: "Respondents . . . suggest that AIRFA . . . in effect enacts their interpretation of the First Amendment into statutory law. . . . The argument is without merit. . . . What is obvious from the face of the statute is confirmed by numerous indications in the legislative history. The sponsor of the bill that became AIRFA . . . called it ‘a sense of Congress joint resolution’ . . . Representative Udall emphasized that the bill . . . ‘has no teeth in it’." (485 U.S. 439; O’Connor’s Part III-B) — Lyng made it undeniably obvious that AIRFA was unenforceable, and therefore changed Indian status little to none. "The American Indian Religious Freedom Act, which was supposed to protect Indian religious freedom, had been relegated to a policy statement. Any possibility that the resolution could be used for protection of Indian religious freedom was lost in Lyng when O’Connor ruled that AIRFA did not create any judicially enforceable rights." 31 In spite of the fact that Lyng repudiated the AIRFA, "Thus far, the road has not been built due to an administrative decision.". 32

Summary:

According to what’s lawful under the global covenant, Indian tribes are generally religious social compacts that retain the full sovereignty that accrues by unalienable Rights to such compacts. Because such sovereignty is lawful, it exists regardless of whatever Congress may say or do. Also, because of treaty obligations and numerous other contractual / compactual duties of the general government, Indian tribes are rightfully the beneficiaries of many general privileges that are not, or should not be, available to non-Indians and to non-Indian religious social compacts. This, even at the beginning of the 21st century, is the general status of Indian tribes, and of the lawful members of such tribes. But all the mismanagement of these relationships over the last two hundred plus years still leaves us with a major jurisprudential cleanup operation,. This cleanup operation is mostly the problem of the general, State, and local governments. But there are cautions in this arena that Indians would be wise to heed:

(1)Secular government is still claiming property to which it has no lawful right: In Bowen v. Roy, it mandates Social Security participation. In Lyng, it claims huge tracts of western land. In Smith, it claims the right to control what other people eat and the right to dispense unemployment compensation.

(2)When Indians who desire equitable benefits from unlawful secular programs, while simultaneously claiming that their special status applies to such programs and such benefits, they inevitably have their special status repudiated by the judiciary. In Bowen v. Roy, Lyng, and Smith, Indians claimed that their special status applied to such secular programs, via free exercise, even though the programs were designed for citizens generally (or persons generally), and not specifically for Indians. In Bowen v. Roy, it was a demand to be relieved from having a Social Security account even while receiving Social Security-related benefits. In Lyng, it was a demand to use "federal" land for religious purposes without having the "federal" government destroy the religious value of the land. In Smith it was unemployment compensation. In each case, the Indian’s claim was repudiated.

(3)In Bowen v. Roy and Lyng, Indian free exercise claims were repudiated via the same judicial rationale, namely that there was a failure to prove that free exercise had been burdened because the claimant failed to prove that they were being coerced to act contrary to their religion. This may be the excuse given by the Court, and this excuse may be idiotic. But the probable though unarticulated reason the justices at the Court rejected these claims was because they knew that the Welfare state is already bloated, and making entitlement programs more difficult to administer would make the mega-state that much more bloated. In Smith the Court used a different excuse. The Court in effect argued that peyotists who were also drug rehabilitation counselors didn’t deserve unemployment compensation because they could believe whatever they wanted but the Court would do everything within its power to make peyote illegal.

(4)Each of these three cases was wrongly decided. To decide these cases correctly: (a)Bowen v. Roy: Secular governments need to stop perpetrating confiscatory taxation to fund unlawful programs (SSA included), and Indians need to stop participating in such programs, and need especially to stop expecting to be treated special while participating in such programs. Indians have a special status and receive special benefits as a result of such status. They should confine themselves to such special programs, and should avoid participation in entitlement programs set up for the general population. This is especially true since the entitlement programs should be abolished. (b)Lyng: Secular governments need to stop claiming land to which they lack lawful title. 33 Such claims are essentially government-perpetrated theft. Indians should continue practicing their religions to whatever extent they see fit, and should, if they choose, do everything within reason to gain use, possessory, equitable, and / or legal title to lands important to their religions. Such efforts should be peaceful and should be informed by the property guidelines expounded in the hermeneutical prologue, and in "5th Amendment (Free Market Economics)". 34 (c)Smith: Secular governments need to stop perpetrating confiscatory taxation to run unemployment compensation programs, and they need to stop claiming a right to control what people eat. Both are government-perpetrated bloodshed. Indians should generally demand all their treaty rights from Congress, but they should also avoid participation in entitlement programs that have been set up for the general population. Even so, by way of AIRFAA of 1994, NAC members are able to legally participate in such programs without fear of religion-based harassment, even though such participation might not be lawful from the hermeneutical prologue’s perspective. 35

It’s been necessary to review the general status of Indian tribes because it’s essential for all Americans to understand that Indians have a status that is unique. It’s lawful that they have a special, unique status. This has huge implications for both Indians and non-Indians. Even though it’s true that such special status exists by way of centuries of treaty mismanagement by the general and State governments, it’s also imperative to understand that each Indian tribe and nation is essentially a religious social compact. This means that as government in the united States transitions from jurisdictional dysfunction into better conformity to basic jurisdictional principles, these secular social compact need to also be transitioning into giving the same deference to American Indian religious social compacts that it gives to any other kind of religious social compact.

Legal Status of Peyote Consumption before Smith (1990):

⇨ For American Indians:

Under the Civilization Regulations Act of 1880, the peyote religion, like all aspects of Native religions, was persecuted and legally banned until 1936. Along with all the many serious mistakes made during the New Deal, there was also then a partial liberation of tribal societies. During the 1930s Yale law professor, Felix Cohen, vetted and categorized laws pertinent to American Indians into the Handbook of Federal Indian Law. He once stated,

The Indian plays much the same role in our American society that the Jews played in Germany. Like the miner’s canary, the Indian marks the shift from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities marks the rise and fall of our democratic faith. 36

According to Cohen, "democratic government sometimes turned toxic, poisoned by the impatience of the majority with any group that got in its way; the first sign that freedom was in trouble was often an assault on Native people.". 37 — The harassment of peyotists in the early 20th century has been well documented. 38 In fact, there has been non-Indian persecution of the peyote religion practically since Columbus.

Since the 1930s, persecution of American Indian peyotism has sometimes been intense. It has also generally been less blatant than during the de facto Protestant establishment.

The last Congressional attempt to legislate against peyote occurred in 1963, but by this time anthropologists were siding with the Indians and the bill died in committee. Two years later Congress passed the Drug Abuse Control Amendments with express intent to protect Indian ceremonial use of peyote, and when in the following year the Administration moved peyote into the category of Schedule I controlled substances, the Drug Enforcement Administration expressly stipulated that ‘this does not apply to the non-drug use of peyote in bona fide religious ceremonies of the Native American Church’ (21 C.F.R. Section 1307.31). 39

After the "federal" controlled substance acts were passed, all States eventually adopted similar statutes, and some also adopted exemptions for NAC. 40 Then the peyote control laws were subjected to a decades-long testing process. Although there were "federal" laws governing peyote prior to 1970, "The federal law dealing with peyote is Public Law 91-513, Comprehensive Drug Abuse Prevention and Control Act of 1970. This law supercedes all other federal legislation dealing with peyote as a drug and establishes five schedules of controlled substances" (84 Stat. 1247). 41 But before 1970, there was also an exemption for NAC, at 21 C.F.R. § 1307.31: 42

The listing of peyote as a controlled substance in schedule I does not apply to the non-drug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of the law. 43

By 1990, twenty-eight States had varying degrees of statutory, judicial, or administrative exemptions for NAC, leaving twenty-two States with no protection whatever. 44 Before Smith (1990), NAC’s existence was legally precarious. After Smith, NAC was pushed into the catacombs.

⇨ For non-Indians:

Ever since secular governments categorized "hallucinogens" as "dangerous" and "controlled", there have been non-Indians who attempted to procure exemptions for their usage of this class of controlled substances. "Section 404 of Public Law 91-513 states that no person can knowingly or intentionally ‘possess a controlled substance’ . . . Thus simple possession of . . . peyote . . . is unlawful, and violators are subject . . . to ‘imprisonment of not more than one year, a fine of not more than $5,000, or both (84 Stat. 1264)." 45 Alleged religions that have sought such exemptions for non-Indians have ranged from the ridiculous to the admirable. Examples:

(1)The United States v. Kuch: A non-Indian, Judith H. Kuch, was indicted for possession of LSD under the Food, Drug, and Cosmetic Act of 1965. She claimed to be a member of the "Neo-American Church". This "church . . . was organized and incorporated by Art Kleps . . . and Timothy Leary". It promoted the use of "psychedelic substances". Kuch claimed that it was a violation of equal protection for the Native American Church to have an exemption for peyote while her "church" had no such exemption for its use of LSD. Some facts that came before the court were that the head of her church was "Chief Boo Hoo"; its symbol was a three-eye toad; and its motto was "Victory over Horseshit!". The District Court found that her church was not a bona fide religion, but was instead a front for drug abuse. Her motion to dismiss the indictment was denied. 46 — These people were obviously fools. But it’s not the job of a secular social compact to protect fools from their foolishness.

(2)Kennedy v. the Bureau of Narcotics and Dangerous Drugs: In May of 1969 the organizer / incorporator of the "Church of the Awakening" petitioned the Narcotics Bureau of Kent County, Michigan, "for an exemption to antidrug laws covering psychedelics". The court rejected the petition by claiming that the "Church of the Awakening" was not a real church, but was instead a "loose confederation of kindred souls whose purpose is to explore the mystical boundaries". 47 — If Kuch and company were insincere fools, the leaders of the "Church of the Awakening" were sincere fools. It’s critical to bear Justice Jackson’s attitude in mind: "I would . . . have done with this business of judicially examining other people’s faiths" (United States v. Ballard, 1944; Jackson’s dissent).

(3)Peyote Way Church of God, Inc. v. the Attorneys General of the United States and Texas: In Denver in 1967 a man who claimed to be Indian, but who was "of questionable Indian heritage", won a case which allowed him to conduct a form of worship similar to the Native American Church, at least in Colorado. His church is known as the "Peyote Way Church of God". Besides practicing NAC-like worship services, this church also "adheres to the dietary laws of the Mormon’s sacred book". In the late 1980s this man brought this case in "U.S. District Court in Dallas, Texas", suing "for the right of Indians with less than one-quarter Indian blood and non-Indians to obtain peyote in Texas". His suit failed. As far as we know, all of his subsequent suits have likewise failed. 48

(4)United States v. Warners (1984) (U.S. District Court for North Dakota Southeastern Div.; Criminal No. C2 84-51): A non-Indian couple, Mr. and Mrs. John D. Warner, was arrested by the FBI for possession of peyote in Grand Forks, North Dakota, in October of 1984. The two were long-time members of the NAC of Tokio, North Dakota. "Mrs. Warner was custodian of the supply of peyote for the Tokio congregation". When the case went to trial in "Grand Forks Federal Court", the jury acquitted the couple, finding that they were "members in good standing of the local congregation of peyotists". 49 — This case shows that at least prior to AIRFAA of 1994, it was possible for non-Indians to be members in good standing of a chapter of NAC. 50

Conclusion: In each of these examples, it’s critical to remember first what’s lawful within a secular social compact, and second, that American jurisprudence has precedents – like Justice Jackson’s dissent in Ballard – that support the hermeneutical prologue’s hands-off approach to free exercise. It’s critical to remember why this approach to secular positive law is important theologically, but it’s also important to remember why it’s important from a secular perspective:

The chief wrong which false prophets do to their following is not financial [or an obvious delict]. . . . The wrong of these things . . . is not in the money the victims part with [or other physical damage they suffer indirectly] half so much as in the mental and spiritual poison they get. But that is precisely the thing the Constitution put beyond the reach of the prosecutor, for the price of freedom of religion or of speech or of the press is that we must put up with, and even pay for, a good deal of rubbish. — (United States v. Ballard (1944), Justice Jackson’s dissenting opinion.)

Justice Douglas had a similar perspective:

[If] religious views . . . are subject to a trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. — (United States v. Ballard (1944), Justice Douglas’s majority opinion.)

It’s not the job of secular governments to judge the truth, goodness, or beauty of anyone’s religion. If a religion claims consumption of any animal, mineral, or vegetable as important to its exercise, this doesn’t create a reasonable exception to the rule outlined by Justices Jackson and Douglas. On the other hand, even if the peyote religion and the Native American Church were the best religion ever to exist on planet earth, this is not a good enough reason to establish it, because establishing it means that it will at best warp the judicial playing field, and at worst be crammed down people’s throats. The Native American Church deserves protection because all religions deserve protection. This is primary. NAC also deserves protection as a function of the special legal status of Native Americans. But the latter motive for protection is secondary.

Legal Status of Peyote Consumption from Smith (1990) through AIRFAA (1994):

⇨ For American Indians:

When Smith and Black’s predicament came to the attention of the Oregon Board of Pharmacy in 1987, the Board "amended its controlled substance rules to exempt ‘the non-drug use of peyote by members of the Native American Church.’". 51 Later the same year, under heavy pressure from the Oregon Attorney General, the Board revamped the rule again, returning to non-exemption. After Smith II (1990), "the Oregon Legislature amended Oregon’s Controlled Substance Act to exempt from prosecution any defendant who possessed peyote as part of . . . a ‘good-faith religious belief.’". 52 Oregon’s repentance became law in June of 1991.

While Oregon was mending its ways, Indian Country – especially people of the Native American Church and the Native American Rights Fund – prepared itself for an all-or-nothing defense. NAC asked HoChunk (Winnebago) elder, Reuben Snake, "to lead the battle to protect the sacramental use of peyote.". 53 Less than a month after the supreme Court published Smith (1990), Reuben Snake and company had developed the Native American Religious Freedom Project (NARFP). NARFP was an outgrowth of the American Indian Religious Freedom Coalition (AIRFC). AIRFC had been formed by the Native American Rights Fund (NARF) in response to the Court’s decision in Lyng (1988). AIRFC’s focus was on preserving American Indian religious freedom in general. As an adjunct to AIRFC, NARFP was focused especially on Native American peyotism, although it also included other goals.

"Although the American Indian Religious Freedom Coalition did support the Religious Freedom Restoration Act, it was also critical of CFER’s inattention to Indian religious rights." 54 On September 29, 1990, NARFP sponsored a rally on the Mall in Washington, D.C. "The rally had been timed to coincide with the House Subcommittee on Civil and Constitutional Rights congressional hearings on the proposed Religious Freedom Restoration Act. . . . The rally culminated in an all-night Native American Church ceremony attended by hundreds of worshipers." 55 Prior to the NAC prayer service, Reuben Snake gave a speech on the Mall in D.C. The speech appears in the Congressional Record. 56 Here are excerpts:

Last April, in the case of Oregon v. Smith, . . . the U.S. Supreme Court threw out its longstanding precedents and declared that no longer does the Government have to show that laws which burden and restrict religious liberty must be justified by a compelling Government interest. . . . [C]onsider the implications of this case from our perspective. The U.S. Supreme Court reversed a long line of settled cases in order to rule that the use of the sacrament of native American worship, the holy medicine, peyote, is not protected under the first amendment . . . The Court said that native Americans . . . are no longer entitled to religious liberty. This trampling of native American religious liberty is intolerable. Our people have been using the holy medicine, peyote, for thousands of years. . . . In the name of the war on drugs, our use of our holy medicine is restricted. In the name of the war on drugs, our guarantee of free exercise of religion has been violated. In the name of the war on drugs, the religious freedom of every American has been placed in jeopardy. The consequences are outrageous. For decades native Americans have endured the harassment and persecution of law enforcement authorities ignorant of, or indifferent to, our ancient ways of worship. The law reports are filled with tragic cases of our men and women dragged from worship, or from their homes, to jail cells and to courtrooms, forced to defend themselves, to justify themselves to the ignorant and the callous. But in those degrading circumstances, we could always point, confidently, to the first amendment's guarantees of free exercise of religion, and know that ultimately we would prevail. Now, unbelievably, we are no longer assured that we will prevail. This . . . is intolerable to every American who treasures their right to worship God without Government interference. . . . [T]oday the 250,000 members of the Native American Church are not free to worship God without fear of Government harassment. Church president Emerson Jackson has declared tomorrow a day of prayer for peace. Today, hundreds of our people are preparing for a night-long Native American Church service and prayer for peace. But many of our elders, who have traveled thousands of miles to be here to worship in our Nation's capital, who have experienced the indignities of religious persecution, expressed to the organizers of this worship service a great fear--will we be arrested? Will we be arrested? . . . I ask my brothers and sisters who are Christians, . . . Moslem, . . . Hindus, . . . Buddhists, . . . Jewish, do any of you worry that your worship services will be raided by the police? Do any of you feel it necessary to call the police in order to set up a worship service? Do any of you have to explain to law enforcement officers that you have a right to worship your God in your own manner? . . . I ask the American people, does this sound like the religious life we expect to live in the United States of America? Well, my brothers and sisters, this unbelievable condition burdens our worship. This relic of prejudice burdens our worship. This Government involvement in our religion burdens our worship, and it is intolerable. Today, at the highest point in Washington, overlooking our little press conference, the National Cathedral is being dedicated. . . . It is profoundly ironic that just as that glorious cathedral is being completed and dedicated in our Nation's Capital, the U.S. Supreme Court has jeopardized the status of every minority religion, and it has done so in a case involving Native American Church members using the holy sacrament of our church. We are here today with one simple message--we demand that our use of our sacrament, the holy medicine peyote, be fully protected by law without qualification. We ask no more, we expect no more, and we are entitled to nothing less! Why must we stand here and defend our religion? Why must we tell you that our church is a good church? Why must we tell you that we do not tolerate drug abusers or alcoholics in our church? We are reduced to this posture because of laws passed and enforced in an atmosphere of almost total ignorance about native Americans. . . . We are here today to tell the American people that our worship is sacred, it is legitimate, it is profound, it is good, it is wonderful in the eyes of God, it is wonderful for our people, and we must, we must pray the way God has taught us. Americans, you have taken much from us. You have benefited from us in many ways. You have left us little land, you have taken away our traditional livelihoods. Do not allow the Government to take our religious freedom away. We urge you to join us in supporting the 'Religious Freedom Restoration Act of 1990,' H.R. 5377. But this is only a first step. The bill does not go far enough. It does not specifically protect our worship, the one that the Supreme Court chose to disregard and deny protection. We urge that the bill be amended to specifically protect native American religion freedom. 57

Reuben Snake tried to get CFER to address the Indian rights in their bill, especially Indian peyotism. But "Leaders of the Coalition rejected his plea, . . . saying that its constituency was so diverse in its persuasions that reinstatement of the ‘compelling state interest’ test was the only thing they could agree on; if a single sentence were added to that, the Coalition would collapse.". 58 Peyote was too "controversial" for CFER. "‘They asked the church to basically get their own coalition, get their own law,’ Walter Echo-hawk [(NARF lawyer)] recalled later. ‘We felt snubbed.’" 59

"The Smith decision was devastating for the Native American Church. For four and a half years that decision forced it underground in a way reminiscent of the catacombs." 60 — "Reuben Snake . . . realized . . . that if Smith were allowed to stand it could be the death knell of a crucial dimension of Native American life, . . . destroying a spiritual tradition that extended back thousands of years. With the endorsement of elected Church leaders, he created the strongest coalition in Native American Church history, the Native American Religious Freedom Project" 61

Reuben Snake, NARFP, AIRFC, and NARF together developed the Native American Free Exercise of Religion Act. This bill (S 1021) addressed both issues related to Lyng and issues related to Smith. Senate hearings on the bill started in September, 1993, the bill being sponsored by Senator Inouye. "After the 1993 hearings . . . [p]rotection for the religious use of peyote was fairly uncontroversial . . . On the other hand, it was very clear that the section of the bill protecting sacred sites did not enjoy broad-based support.". 62 Objections to the bill at the Senate hearings came mostly from representatives of the forestry and mining industries. They claimed the bill would violate the establishment clause, the equal protection clause, and the takings clause. Parts of the bill pertinent to peyotism posed no economic threats. But parts of the bill pertinent to sacred sites "could potentially interfere with how people used their private property". 63 To remedy this situation, "In . . . spring 1994 Representative Richardson made a decision, with the support of AIRFC members, to introduce two separate measures, one to protect access to sacred sites, and the other to protect religious use of peyote[:] . . . HR 4155 . . . would amend AIRFA to protect federal lands considered sacred to Native Americans. . . . HR 4230 [would] add a new section to AIRFA to allow the sacramental use of peyote in Indian religious ceremonies.". 64

The House passed House measure HR4230, also known as American Indian Religious Freedom Act Amendments (AIRFAA), in August, 1994, by unanimous voice vote. 65 The Senate passed the same measure in September of that year. The sacred sites bill, HR4155, died in committee. The President signed the AIRFAA (PL 103-344; 108 Stat. 3125) in October, 1994. These amendments to AIRFA "provide that peyotists who are members of Indian tribes may not be ‘penalized or discriminated against’ by state or federal governments on the basis of ‘use, possession, or transportation’ of peyote ‘in connection with the practice of a traditional Indian religion.’". 66 They prohibit "discrimination for use of peyote, including denial of benefits from public assistance programs. Under the bill, the Drug Enforcement Administration and State of Texas would continue to regulate the distribution of peyote.". 67 "For the first time in its history, the Native American Church stood on firm statutory ground." 68 "[T]he centuries-long era of persecution and oppression of Native American peyotism was ended." 69 "Congress successfully enacted comprehensive legislation that protected this ancient religious ritual in all fifty states of the Union." 70 "The law, however, also gave the federal government the right to decide who could be a member of the Church. Al Smith would be protected by the new law; Galen Black would not." 71

⇨ For non-Indians:

It may seem a bit of poetic justice that a religion that has been oppressed by non-Indians for centuries is now absolutely legal for American Indians, while it is now more illegal than ever for non-Indians. But poetic justice is a thoroughly inadequate form of justice for a legal system that aspires to be the best in the world. The entire human race exists in a state of fallenness. If we aspire to the best, there is little room for recrimination, because beyond the bare necessity of executing justice against delicts and enforcing contracts, the blaming and shaming game is an impediment to all of us.

Under AIRFAA of 1994, Galen Black’s attendance at an NAC service is more precarious than ever. 72 The man was invited to a meeting, attended, fell in love with the church, considered himself a member, participated in years of legal haggling to defend his participation in NAC, and is now mandated by law to be a legal outcast. If the Native American Church wants him outcast, that’s their prerogative as surely as it’s the prerogative of any church to choose who attends their services. But if American positive law mandates his outcast status, this is something else entirely. This is not poetic justice. This is plain and simple injustice.

According to the hermeneutical prologue, drug laws that are "generally applicable" directly under the jurisdiction of a secular social compact, are violations of rights, and are therefore religious bigotry. In contrast, drug laws that exist under the specific jurisdiction of a religious social compact are perfectly lawful, as long as they exist by the consent of the parties to the religious social compact. This is consistent with a rational definition of religion. Also implicit in the hermeneutical prologue, secular positive law that favors some people while disfavoring others is inherently hideous. American Indians have a special legal status that results from contracts, compacts, and treaties that are foundational to the existence of the American social compact. The indigenous people are the only people in the United States who have this status. This status is both lawful and legal. This doesn’t mean that everyone else should be disabled, the way Galen Black is presently disabled. It means that everyone else should live on the level playing field mandated by the hermeneutical prologue. American Indians should live on the same level playing field except to the extent that lawful contracts, compacts, and treaties give them benefits that the rest of us don’t deserve, because our ancestors didn’t surrender lands that allow the nation to exist.

Exemption from peyote laws is only necessary if peyote laws exist. Since peyote laws are unlawful under a secular social compact, so is the exemption. But the way to start eliminating these injustices is not with elimination of the exemption to bad laws, but with the elimination of the bad laws. On this front, it’s critical for Bible-believing Christians to stand first for the continued exemption of Native Americans from laws against peyote, and second, for the repeal and total elimination of such bad laws.

Section 3(b)(1) of the AIRFAA says that "the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States, or any State". 73 Section 3(c)(1) says that "the term ‘Indian" means a member of an Indian tribe". Section 3(c)(2) says that "the term ‘Indian tribe’ means any tribe, band, nation, . . . of Indians . . . which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians". Clearly, anyone who is not a member of an "Indian tribe" is not exempt from the drug laws.

Non-Indian peyote-using ‘churches’ that have sprung up in recent years have argued that this exemption discriminates against them, but in 1991 the Fifth Circuit Court of Appeals ruled that the U.S. government’s trust relationship with tribal Native Americans places them in a special category that makes their exemption in order.

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 governmental objective of preserving Native American culture. [Non-Indians] are not similarly situated [with respect to] cultural preservation. 74

We hold that "drug laws" under a secular social compact are inherently evil, because they are government-perpetrated bloodshed. We hold that all these laws under the general and State governments must be repealed. Then the kind of establishment that appears in this 5th Circuit ruling ceases to be an issue, at least to the extent that it derives from drug law exemptions.

Conclusion:

It’s a genuine good that the Native American Church is able to continue its normal activities without being harassed by statist officials. It’s too bad that the only way it has been able to obtain that status is by becoming exempt from the bad laws. By being exempt, it has in some respects become established. It makes no sense for anyone to threaten that exemption. On the other hand, it is monumentally sensible for us to recognize those bad laws as the core wrong, and to eliminate them.

Footnotes

116 American Jurisprudence 2d Constitutional Law § 256.

2RFRA URL: https://www.congress.gov/103/bills/hr1308/BILLS-103hr1308eas.pdf.

3In fact, the danger of syncretism is real. But we believe that syncretism, as an act of heresy, is the mixing of the "laws of nature" (which is NOT equivalent to natural law) with divine law as though the two were equally valid, or as though the "laws of nature" were superior to divine law. We believe the two can be mixed safely only by holding the "laws of nature" subservient to divine law, and divine law subordinate to natural law. To do otherwise is to fail to acknowledge the holiness of Scripture, is to fail to honor divine law as divine, and is to fail to acknowledge that natural law is primarily unchanging Moral Law written on the heart of every human being as the "image of God".

4AIRFAA URL: https://www.law.cornell.edu/uscode/text/42/1996a.

5See Jefferson’s Second Inaugural Address at Yale’s Avalon Project, URL: http://avalon.law.yale.edu/19th_century/jefinau2.asp.

6To an Unknown God, p. 57.

7See history of U.S. Indian policy embedded in "North American Indian Timeline", URL: http://www.thelatinlibrary.com/imperialism/notes/nativeamericanchron.html.

8See history of U.S. Indian policy embedded in "North American Indian Timeline", URL: http://www.thelatinlibrary.com/imperialism/notes/nativeamericanchron.html.

9For more about the historical conflict between Native and Euro-American land claims, see 5th Amendment (Free Market Economics), URL: ./0_A_2_Am_V_(Free_Market).htm#FifthAm.

10The Oxford Companion to the Supreme Court of the United States, pp. 450-451, "Johnson and Graham’s Lessee v. McIntosh", by John R. Wunder. — Marshall made a factual error in claiming that all Indians were nomadic. He made a moral error in claiming that they were all savages. He made another moral error in claiming the "doctrine of discovery".

11For more about this, see the 5th Amendment (Original Intent) regarding takings, URL: ./0_A_1_Am_V_(Original_Intent).htm#FifthAm.

12See history of U.S. Indian policy embedded in "North American Indian Timeline", URL: http://www.thelatinlibrary.com/imperialism/notes/nativeamericanchron.html.

13Regarding acquisition of lawful land ownership under the global covenant, see the 5th Amendment, URL: ./0_A_0_Am_V_(Intro).htm#FifthAm.

14See history of U.S. Indian policy embedded in "North American Indian Timeline", URL: http://www.thelatinlibrary.com/imperialism/notes/nativeamericanchron.html.

15See history of U.S. Indian policy embedded in "North American Indian Timeline", URL: http://www.thelatinlibrary.com/imperialism/notes/nativeamericanchron.html.

16See our analysis of real estate in 5th Amendment (Original Intent), URL: ./0_A_1_Am_V_(Original_Intent).htm#FifthAm.

17The Oxford Companion to the Supreme Court of the United States, p. 511, "Lone Wolf v. Hitchcock", by Jill Norgren.

18History of U.S. Indian policy embedded in "North American Indian Timeline", URL: http://www.thelatinlibrary.com/imperialism/notes/nativeamericanchron.html.

19History of U.S. Indian policy embedded in "North American Indian Timeline", URL: http://www.thelatinlibrary.com/imperialism/notes/nativeamericanchron.html.

20This was essentially adoption of a specific public policy, rather than enactment of new positive law. This is evidenced by the fact that this resolution doesn’t appear in the U.S. Code.

21It ended officially after a speech by President Nixon, URL: http://www.presidency.ucsb.edu/ws/index.php?pid=2573&st=&st1, on July 8, 1970, in which he asked, among other things, for Congress to "repeal the termination policy" because "the historic relationship between the Federal Government and the Indian communities cannot be abridged without the consent of the Indians". This speech is often credited with instigating a series of new laws that focused on Indian "economic self-sufficiency and political self-determination." (See, for example, 42 U.S.C. 2992d et seq.; 25 U.S.C. 1451 et seq.; 25 U.S.C. 455 et seq.; and 25 U.S.C. 450 et. seq.)

2267 Stat. 588 (1953) – codified in scattered sections of 18 USC, 25 USC, and 28 USC.

23History of U.S. Indian policy embedded in "North American Indian Timeline", URL: http://www.thelatinlibrary.com/imperialism/notes/nativeamericanchron.html.

24AIRFA URL: https://www.law.cornell.edu/uscode/text/42/1996.

25The AIRFA of 1978 is encoded at 42 USC § 1996, URL: https://www.law.cornell.edu/uscode/text/42/1996, and therefore stands as positive law. Nevertheless, subsequent judicial, legislative, and administrative decisions make it obvious that this law lacked enforceability. See especially Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) and regarding Lyng herein, URL: #Lyng.

26The Oxford Companion to the Supreme Court of the United States, p. 755, "Santa Clara Pueblo v. Martinez", by Paul L. Murphy.

27We are quoting Justice Thurgood Marshall’s majority opinion in Santa Clara Pueblo v. Martinez (1978), but Justice Marshall was quoting Chief Justice John Marshall’s majority opinion in Worcester v. Georgia (1832). In other words, the later Marshall is reviving a 150-year old doctrine that had been repudiated by Congress. It was in essence judicial acknowledgment of how fickle and self-serving Congress had been in Indian affairs.

28Religious Freedom and Indian Rights, p. 131.

29To an Unknown God, p. 190.

3042 USC § 1996, URL: https://www.law.cornell.edu/uscode/text/42/1996.

31Religious Freedom and Indian Rights, p. 222.

32History of U.S. Indian policy embedded in "North American Indian Timeline", URL: http://www.thelatinlibrary.com/imperialism/notes/nativeamericanchron.html.

33Regarding takings in general, see 5th Amendment (Free Market Economics), URL: ./0_A_2_Am_V_(Free_Market).htm#FifthAm.

34URL: ./0_A_2_Am_V_(Free_Market).htm#FifthAm.

35 AIRFAA, 42 USC § 1996a, (b)(1): "No Indian shall be penalized or discriminated against on the basis of use, possession or transportation [of peyote], including but not limited to, denial of otherwise applicable benefits under public assistance programs." — URL: https://www.law.cornell.edu/uscode/text/42/1996a.

36Quoted at Religious Freedom and Indian Rights, p. 3.

37To an Unknown God, p. 193.

38See The Peyote Religion’s ample index on this subject.

39One Nation Under God, pp. 128-129, "The Legal Tango: The Native American Church v. The United States of America", by James Botsford and Walter B. Echo-Hawk.

40See Religious Freedom and Indian Rights, pp. 16-18, for a summary of this process.

41One Nation Under God, p. 117, "The Legal Tango: The Native American Church v. The United States of America", by James Botsford and Walter B. Echo-Hawk.

42URL: http://www.gpo.gov/fdsys/pkg/CFR-2015-title21-vol9/pdf/CFR-2015-title21-vol9-sec1307-31.pdf.

43One Nation Under God, p. 118, "The Legal Tango: The Native American Church v. The United States of America", by James Botsford and Walter B. Echo-Hawk.

44See Religious Freedom and Indian Rights, p. 222. — Twelve States "have an exemption similar to the federal law"; "seven states . . . have full exemptions for the religious use of peyote"; "[t]hree states . . . do not limit the religious exemption to members of the Native American Church but extend an exemption to any bona fide religious use of the substance"; "Idaho exempts peyote use only on reservations"; and the "remaining two dozen states have laws prohibiting peyote . . . even if used for religious purposes.". Some States that "have laws prohibiting peyote . . . even if used for religious purposes" nevertheless have a "judicially created exemption". — Religious Freedom and Indian Rights, p. 17.

45One Nation Under God, p. 118, "The Legal Tango: The Native American Church v. The United States of America", by James Botsford and Walter B. Echo-Hawk.

46Quotes are from The Peyote Religion, pp. 325-326.

47Quotes are from The Peyote Religion; p. 326.

48Quotes are from The Peyote Religion; p. 326.

49The Peyote Religion; pp. 333-334.

50AIRFAA URL: https://www.law.cornell.edu/uscode/text/42/1996a.

51To an Unknown God, p. 154.

52Religious Freedom and Indian Rights, p. 225.

53Religious Freedom and Indian Rights, p. 223.

54Religious Freedom and Indian Rights, p. 224.

55Religious Freedom and Indian Rights, pp. 224-225.

56Search the 103rd Congress at the Library of Congress website, URL: http://thomas.loc.gov/home/LegislativeData.php?&n=Record, for "Reuben Snake", click the hyperlink by "IN MEMORY OF REUBEN A. SNAKE, JR.", then click "Statement of Reuben A. Snake , Jr., Coordinator, Native American Religious Freedom Project".

57Inserted into the Congressional Record as part of Senator Inouye’s tribute to Reuben Snake, upon his death in 1993.

58One Nation Under God, p. 138.

59To an Unknown God, pp. 230-231.

60One Nation Under God, p. 138.

61One Nation Under God, p. 140.

62Religious Freedom and Indian Rights, pp. 246-247.

63Religious Freedom and Indian Rights, pp. 244-246.

64Religious Freedom and Indian Rights, p. 247.

65AIRFAA URL: https://www.law.cornell.edu/uscode/text/42/1996a.

66To an Unknown God, p. 235.

67Religious Freedom and Indian Rights; p. 249.

68To an Unknown God, p. 235.