103d CONGRESS                                                     REPORT 
2d Session              HOUSE OF REPRESENTATIVES                  103-675 
 
        AMERICAN INDIAN RELIGIOUS FREEDOM ACT AMENDMENTS OF 1994 
 
AUGUST 5, 1994.--Committed to the Committee of the whole House on the 
State of the Union and ordered to be printed 
 
Mr. MILLER of California, from the Committee on Natural Resources,  
submitted the following 
 
REPORT 
[To accompany H.R. 4230] 
 
[Including cost estimate of the Congressional Budget Office] 
 
  The Committee on Natural Resources, to whom was referred the bill (H.R.  
4230) to amend the American Indian Religious Freedom Act to provide for 
the traditional use of peyote by Indians for religious purposes, and for 
other purposes, having considered the same, report favorably thereon with 
an amendment and recommend that the bill as amended do pass. 
  The amendment is as follows: 
  Strike out all after the enacting clause and insert in lieu thereof the  
following: 
 
SECTION 1. SHORT TITLE. 
  This Act may be cited as the "American Indian Religious Freedom Act  
Amendments of 1994". 
 
SEC. 2. TRADITIONAL INDIAN RELIGIOUS USE OF THE PEYOTE SACRAMENT. 
  The Act of August 11, 1978 (42 U.S.C. 1996), commonly referred to as 
the American Indian Religious Freedom Act", is amended by adding at the 
end thereof the following new section: 
  "Sec. 3. (a) The Congress finds and declares that-- 
       "(1) for many Indian people, the traditional ceremonial 
     use of the peyote cactus as a religious sacrament has for 
     centuries been integral to a way of life, and significant 
     in perpetuating Indian tribes and cultures; 
       (2) since 1965, this ceremonial use of peyote by Indians 
     has been protected by Federal regulation; 
       (3) while at least 28 States have enacted laws which are 
    similar to, or are in conformance with, the Federal 
    regulation which protects the ceremonial use of peyote by 
    Indian religious practitioners, 22 States have not done so, 
    and this lack of uniformity has created hardship for Indian 
    people who participate in such religious ceremonies; 
 
    79-006 

 
                                 2 
 
      "(4) the Supreme Court of the United States, in the case 
    of Employment Division v. Smith, 494 U.S. 872 (1990), held 
    that the First Amendment does not protect Indian practitioners 
    who use peyote in Indian religious ceremonies, and also raised 
    uncertainty whether this religious practice would be protected 
    under the compelling State interest standard; and 
       "(5) the lack of adequate and clear legal protection for 
    the religious use of peyote by Indians may serve to stigmatize 
    and marginalize Indian tribes and cultures, and increase the 
    risk that they will be exposed to discriminatory treatment. 
  "(b)(1) Notwithstanding any other provision of law, 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.  No Indian shall be penalized 
or discriminated against on the basis of such use, possession or 
transportation, including, but not limited to, denial of otherwise 
applicable benefits under public assistance programs. 
  "(2) This section does not prohibit such reasonable regulation 
and registration by the Drug Enforcement Administration of those 
persons who cultivate, harvest, or distribute peyote as may be 
consistent with the purposes of this Act. 
  "(3) This section does not prohibit application of the provisions 
of section 481.111(a) of Vernon's Texas Health and Safety Code 
Annotated, in effect on the date of enactment of this section, insofar 
as those provisions pertain to the cultivation, harvest, and distribu- 
tion of peyote. 
  "(4 Nothing in this section shall prohibit any Federal depart- 
ment or agency, in carrying out its statutory responsibilities and 
functions, from promulgating regulations establishing reasonable 
limitations on the use or ingestion of peyote prior to or during 
the performance of duties by sworn law enforcement officers or 
personnel directly involved in public transportation or any other 
safety-sensitive positions where the performance of such duties 
may be adversely affected by such use or ingestion.  Such regulations 
shall be adopted only after consultation with representatives of 
traditional Indian religions for which the sacramental use of peyote 
is integral to their practice.  Any regulation promulgated pursuant 
to this section shall be subject to the balancing test set forth 
in section 3 of the Religious Freedom Restoration Act (Public Law 
103-141; 42 U.S.C. 2OOObb-1). 
  "(c) For purposes of this section-- 
        "(1) the term 'Indian' means a member of an Indian tribe; 
        "(2) the term 'Indian tribe' means any tribe, band, nation, 
    pueblo, or other organized group or community of Indians, 
    including any Alaska Native village (as defined in, or estab- 
    lished pursuant to, the Alaska Native Claims Settlement Act 
    (43 U.S.C. l601 et seq.)), which is recognized as eligible for 
    the special programs and services provide by the United States 
    to Indians because of their status as Indians; 
        "(3) the term 'Indian religion' means any religion-- 
              "(A) which is practiced by Indians; and 
              "(B) the origin and interpretation of which is from 
          within a traditional Indian culture or community; and 
        "(4) the term 'State' means any State of the United States 
      and any political subdivision thereof. 
  "(d) Nothing in this section shall be construed as abrogating, 
diminishing, or otherwise affecting-- 
              "(1) the inherent rights of any Indian tribe; 
              "(2) the rights, express or implicit, of any Indian 
            tribe which exist under treaties, Executive orders, and 
            laws of the United States; 
              "(3) the inherent right of Indians to practice their 
            religions; and 
              "(4) the right of Indians to practice their religions 
            under any Federal or State law.". 
 
                           PURPOSE 
 
  The purpose of H.R. 4230 is to amend the American Indian Religious  
Freedom Act to provide for the traditional use of peyote by Indians for  
religious purposes, and for other purposes. 

 
                                 3 
 
                     BACKGROUND AND NEED 
 
  Peyote, the scientific name of which is Lophophora williamsii, is a  
small, spineless cactus that grows only in the Rio Grande valley of  
southern Texas and northern Mexico.  Anthropologists date the sacramental  
use of the peyote cactus among indigenous peoples back 10,000 years.   
Native American religious use of peyote was discovered by Spanish 
explorers in the 1600's and has continued to the present.  Such use 
exists today, largely through the Native American Church (NAC), among 
more than 50 Indian tribes in the United States.  The NAC is the present-
day embodiment of one of the oldest religious traditions in the western 
hemisphere.  The contemporary NAC was first incorporated in Oklahoma in 
1918, and now has chapters in 25 States.  Approximately 250,000 American 
Indians are affiliated with the NAC. 
  The Federal District Court in New Mexico, in the 1986 case of Toledo v.  
Nobel-Sysco, Inc., 651 F.Supp. 483 (D.N.M. 1986) held that the religious  
use of peyote was not illegal.  The court found that; 
 
     Church peyote users believe that peyote is a sacred and 
   powerful plant.  Peyote is seen as a medicine, a protector, 
   and a teacher.  In terms used by other religions, peyote can 
   be called a sacrament, something which when eaten gives 
   awareness of God.  The use of peyote is central to the Na- 
   tive American peyote religion.  The religion teaches that 
   those who use peyote must not use alcohol.  It encourages 
   love of parents and obedience to parents, fidelity to a 
   spouse, and charity towards others.  The peyote religion 
   does not prohibit members from also practicing other reli- 
   gions. 
 
  Medical evidence, based on scientific studies and. opinions of 
scientific and other experts, including medical doctors, former directors 
of the Indian Health Service and Enthropologists, clearly demonstrates 
peyote is not injurious to the Indian religious user, and, in fact, is 
often helpful in controlling alcoholism and alcohol abuse among Indian 
people.  Ingested as a solid or tea in strictly prescribed and controlled 
religious ceremonies, the sacrament is neither addictive nor habit 
forming.  Courts which have made factual findings regarding the religious 
use of peyote by Indians have concluded that such use is not harmful. 
  While the First Amendment right of Indian practitioners of the peyote  
religion is endangered by the Smith decision, its religious use is  
basically non-controversial.  Attempts by the Congress to recognize and  
protect this right have a long history.  When the House of 
Representatives passed H.R. 2, which became the "Drug Abuse Control 
Amendments of 1965", it protected the right of Indians to use peyote in 
connection with the ceremonies of a certified religious organization.  
The Senate omitted that specific protection, preferring that substances 
be included on such a list on a case-by-case basis.  Congressman Harris 
assured House members that such omissions would not prevent bona fide 
religious use because courts had already upheld peyote use as a First 
Amendment right.  The Administration then added peyote to Schedule I by 
administrative 

 
                             4 
 
regulation in 1966, but provided an exemption for non-drug use of peyote 
in religious ceremonies of the Native American Church. 
  When Congress passed the Controlled Substance Act of 1970, it enacted  
Schedule I into law.  During hearings on the legislation, Congressman  
Satterfield expressed concern that the religious use of peyote by Indian  
practitioners be protected.  The Administration assured him that this 
would be taken care of by regulation.  The regulations, adopted in 1971 
to implement the Act, provide at 21 CFR  1307.31: 
 
     The listing of peyote as a controlled substance in Sched- 
   ule I does not apply to the nondrug use of peyote in bona 
   fide religious ceremonies of the Native American Church. 
 
  Since that time, Native American Church use of peyote as a religious  
sacrament has had the limited protection of Federal regulation.  
Officials of the Drug Enforcement Administration of the Department of 
Justice testified at House hearings in 1993 and 1994 that the religious 
use of peyote by Indians has nothing to do with the vast and violent 
traffic in illegal narcotics that plagues this country.  The DEA further 
testified that it is unaware of the diversion of peyote to any illicit 
market.  The NAC has a good, cooperative relationship with the DEA in 
ensuring that peyote is lawfully harvested and distributed solely for 
American Indian religious use.  The distribution of peyote is strictly 
controlled by Federal regulations, and by the laws and regulations of the 
State of Texas, the only State in which the sacrament grows in 
significant quantities. 
  In addition to the Federal regulatory exemption of the DEA, 28 States  
provide some degree of legal protection for the religious use of peyote 
by Indians.  However, neither the Federal regulation nor the State laws  
provide the full range of protection needed for the unhindered religious  
use of peyote by Indians, and 22 States still have no legal protection at  
all.  In some States, the legal protection for Indians is limited to the  
opportunity to assert the religious use of peyote as an affirmative 
defense in the context of felony prosecution.  Thus, bona fide NAC 
members can be arrested, finger-printed, incarcerated and subjected to 
all the indignities of a felony prosecution before they can be vindicated 
and set free.  Even then, they will have a criminal record--simply for 
practicing a bona fide religion that predates the founding of this 
country by some 10,000 years. 
  As a result of the diverse State laws governing the use of peyote,  
Indians in different tribes from different States, as well as from  
different tribes within some States, are treated differently regarding 
the traditional religious use of peyote. [Footnote 1]  NAC members who 
have 
 
  [Footnote 1] For example, there are three Indian reservations in 
Nebraska where Native Americans reside: the Winnebago, Omaha and Santee 
Sioux.  Nebraska state law does not provide for an exemption for the 
religious use of peyote by Indians.  Therefore, Native American Church 
members transporting the sacrament to any of the three Nebraska 
reservations could be arrested, prosecuted and incarcerated if caught in 
possession of the sacrament anywhere in the state before they enter the 
reservation.  As a result of federal Indian policy and related 
jurisdictional matters, the State of Nebraska does not have criminal 
jurisdiction over the Winnebago or Omaha reservations, but does have such 
authority over the Santee Sioux Reservation.  Thus, Omaha and Winnebago 
Indians may lawfully use peyote for religious purposes on their own 
reservations, because state law is not applicable there and such use is 
protected by the federal exemption of the DEA.  However, Indians using 
the sacrament on the Santee Sioux Reservation could be prosecuted under 
state law since Nebraska criminal law is applicable at Santee and there 
is no state law exemption for the religious use of the sacrament.  Such 
anomalous situations are not uncommon and underscore the need for a 
uniform national law that will provide American Indians with equal 
protection throughout the nation. 

 
                            5 
 
lawfully acquired the sacrament in Texas can still be arrested and  
subjected to felony prosecution and imprisonment in 22 States, States in  
which they may live or through which they must travel on their way home  
from Texas after lawfully acquiring the sacrament.  This current State-
by-State patchwork of laws has a chilling effect on the freedom of many 
Indian people to travel in this country and to practice their religion.   
Legislation is therefore needed to assure comprehensive, equal and 
uniform protection of the religious use of peyote by Indians throughout 
the United States, without regard to the State or reservation of 
residence, or tribal affiliation. 
  While 28 States do provide varying legal protections for the religious  
use of peyote by Indians, the U.S. Supreme Court ruled in 1990 in the 
Smith case that it is constitutionally permissible for States to prohibit 
such use.  This legislation is made necessary by the Smith ruling. 
 
  THE SMITH DECISION AND RESTORATION OF THE COMPELLING 
             GOVERNMENT INTEREST TEST 
 
  The Smith case began as an unemployment compensation dispute involving  
Alfred Smith, a Native American employee of a private drug and alcohol  
rehabilitation facility.  Smith was fired and denied unemployment 
benefits after acknowledging he had ingested the peyote sacrament during 
a traditional religious ceremony of the Native American Church.  The 
Oregon Employment Division believed that the State had a compelling 
interest in proscribing the use of certain drugs pursuant to a controlled 
substance law. 
  Smith filed a case disputing the denial of unemployment benefits and  
questioning the constitutionality of the controlled substance law as it  
applied to his religious practice.  Following protracted litigation, the  
Oregon Supreme Court ruled that the prohibition on the sacramental use of  
peyote violated the free exercise clause of the First Amendment. 
  The U.S. Supreme Court reversed, holding that the free exercise clause 
of the First Amendment did not prohibit the State of Oregon from banning 
the sacramental use of peyote through its general criminal prohibition 
laws, or from denying unemployment benefits to persons dismissed from 
their jobs for such religiously inspired use.  In an opinion written by 
Justice Scalia (joined by Chief Justice Rehnquist and Justices White, 
Stevens, and Kennedy), the Court discarded the long-standing compelling 
interest test, holding that facially neutral laws of general 
applicability that burden the free exercise of religion require no 
special justification to satisfy free exercise scrutiny. 
  Finally, the Court asserted that the free exercise of religion may be  
protected through the political process.  According to the majority, its  
inability to find constitutional protection for religiously inspired 
action burdened by generally applicable laws does not mean statutory 
exemptions to such laws are not permitted or even desired.  However, the 
majority noted: 
 
     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 

 
                             6 
 
   unavoidable consequence of democratic government must 
   be preferred to a system in which each conscience is a law 
   unto itself or in which judges weight the social importance 
   of all laws against the centrality of all religious beliefs.  
   [Footnote 2] 
 
  To reach its decision, the majority had to strain its reading of the  
First Amendment and ignore years of precedent in which the compelling  
government interest test was applied in a variety of circumstances.  In a  
strongly worded concurrence, Justice O'Connor took sharp issue with the  
Court's abandonment of the compelling government interest test.  Justice  
O'Connor reviewed the Court's precedents and found that they confirmed 
that the compelling interest standard is the appropriate means to protect 
the religious liberty guaranteed by the First Amendment: 
 
     To say that a person's right to free exercise has been 
   burdened, of course, does not mean that he has an abso- 
   lute right to engage in the conduct.  Under our established 
   First Amendment jurisprudence, we have recognized that 
   the freedom to act, unlike the freedom to believe, cannot 
   be absolute.  Instead, we have respected both the First 
   Amendment's express textual mandate and the govern- 
   mental interest in regulation of conduct by requiring the 
   government to justify any substantial burden on reli- 
   giously motivated conduct by a compelling state interest 
   and by means narrowly tailored to achieve that interest. 
   [Footnote 3] 
 
  This controversial decision by a divided Court has been heavily  
criticized by constitutional law scholars, religious leaders, and civil  
libertarians.  In 1993, Congress overturned portions of the Smith 
decision by enacting the Religious Freedom Restoration Act of 1993 
(RFRA), Pub. L. 103-141, 107 Stat 1488 (42 U.S.C.  2OOObb et seq.,).  
However, RFRA left open the question of whether the reinstated compelling 
government interest test would provide adequate legal protection for the 
traditional religious use of peyote by American Indians--the precise 
religious practice at issue in Smith.  As President Clinton emphasized 
when he signed the Religious Freedom Restoration Act on November 16, 
1993: 
 
     The agenda for restoration of religious freedom in Amer- 
   ica will not be complete until traditional Native American 
   religious practices have received the protection they de- 
   serve.  My Administration has been and will continue to 
   work actively with Native Americans and the Congress on 
   legislation to address these concerns. 
 
  NEED FOR H.R. 4230 NOTWITHSTANDING THE RELIGIOUS FREEDOM 
                 RESTORATION ACT OF 1993 
 
  The Committee recognizes that H.R. 4230 remains necessary 
notwithstanding the recent enactment of the Religious Freedom Restoration 
Act of 1993.  Justice O'Connor agreed with the judgment of the majority 
in Smith that Oregon's prohibition of the sacramental use of peyote was 
constitutionally permissible.  However, she thought it unnecessary to 
discard the compelling government inter- 
 
  [Footnote 2] 494 U.S. at 890. 
  [Footnote 3] Id. at 894 (citations omitted). 

 
                            7 
 
est test in order to reach this result.  Instead, Justice O'Connor would  
have retained and applied the traditional test to rule that the religious  
use of peyote by Indians is not protected by the first Amendment, since 
in her view the "State in this case has a compelling interest in 
regulating peyote use by its citizens-- * * *" [Footnote 4]  In Justice 
O'Connor's view, Oregon would have met the compelling government interest 
test solely on the judgment of the State legislature to list peyote as a 
Class 1 controlled substance, and notwithstanding factual considerations. 
  The Supreme Court's reliance on Oregon's position in Smith that the 
State has an interest in protecting the health and safety of its citizens 
from the "dangers" of peyote is highly questionable.  As pointed out by 
Justice Blackmun in his dissent in Smith, Oregon's position "rests on no  
evidentiary foundation at all," and is therefore entirely speculative".  
[Footnote 5]  As underscored by the dissent, the majority agreed with  
Oregon's assertion, notwithstanding that Oregon failed to offer any  
"evidence that the religious use of peyote has ever harmed anyone." 
[Footnote 6]  To the contrary, the record in Smith amply showed that: 
 
     (1) Factual findings of other courts contradict Oregon's as- 
   sumption that the religious use of peyote is harmful; 
     (2) Medical evidence, based on the opinion of scientists and 
   other experts, including medical doctors and anthropologists, is 
   that peyote is not injurious; 
     (3) The distribution and use of peyote has nothing to do with 
   the vast and violent traffic in illegal narcotics that plagues this 
   country; 
     (4) There is virtually no illegal trafficking in peyote--Drug 
   Enforcement Administration (DEA) data indicates that be- 
   tween 1980 and 1987, only 19.4 pounds of peyote was con- 
   fiscated, while during the same period the DEA seized over 15 
   million pounds of marijuana; 
     (5) The distribution of peyote is strictly controlled by Federal 
   and Texas State regulations--the only State where peyote 
   grows in significant quantities; 
     (6) The carefully circumscribed religious context in which pe- 
   yote is used by Indians is far removed from the irresponsible 
   and unrestricted recreational use of unlawful drugs, and is 
   similar to the sacramental use of wine by the Roman Catholic 
   Church, which was exempted from the general statutory ban 
   on possession and use of alcohol during Prohibition; 
     (7) The Federal Government and 23 States [now 28] provide 
   an exemption from respective drug laws for the religious use 
   of peyote by American Indians; 
     (8) Native American Church doctrine forbids the non-reli- 
   gious use of peyote, and also advocates self-reliance, familial 
   responsibility and abstinence from alcohol; 
     (9) Spiritual and social support provided by the Native 
   American Church has been effective in combatting the tragic 
   effects of alcoholism among the Native American population; 
 
  [Footnote 4] 494 U.S. at 907. 
  [Footnote 5] 494 U.S. at 911. 
  [Footnote 6] 494 U.S. at 911-l2. 
  [Footnote 7] 494 U.S. at 911-18 for precise citations of the enumerated  
paragraphs. 

 
                          8 
 
     (10) Oregon's assertion that granting a religious exemption 
   for the use of peyote would open the floodgates to claims for 
   the religious use of controlled substances by other religious de- 
   nominations is not an issue because the Supreme Court and 
   lower courts over the years have consistently rejected similar 
   arguments in past free exercise cases, having held that the re- 
   ligious use of peyote by American Indians is the sole cir- 
   cumstance warranting claims for a religious exemption for any 
   controlled substance; and 
     (11)granting a religious exemption solely for the sac- 
   ramental use of peyote by American Indians presents no equal 
   protection problems. 
 
  Notwithstanding the above-referenced record in Smith, Justice O'Connor  
felt Oregon had a compelling interest to prohibit the religious use of  
peyote, even though Oregon had never evinced a concrete interest in  
enforcing its drug laws against religious users of peyote--including Al  
Smith, the plaintiff in the Smith case.  The committee recognizes that  
traditional Indian religions, including the peyote religion, are highly 
unique in nature and are little understood by the courts and other 
government officials.  Given this backdrop, the Committee believes that 
the traditional religious use of the peyote sacrament by Indians requires 
statutory protection.  H.R. 4230 responds to the Supreme Court's 
invitation in Smith to accommodate this ancient religious practice 
through the political process. 
  Absent Federal legislation, the question of whether a given State has a  
compelling interest to prohibit the religious use of peyote by Indians is  
one that would necessarily be determined by the courts on a State-by-
State basis.  The Committee recognizes that such determination could 
require numerous State supreme court decisions and a corresponding number 
of U.S. Supreme Court opinions--with varying results possible, as well as 
numerous lower State and Federal court decisions.  Such piecemeal 
judicial resolution to this issue is not likely to produce uniform, just 
or equal results, and would be unduly burdensome, costly and time 
consuming.  The Committee recognizes that uniform and equal protection of 
Indians without regard to State or reservation of residence, or tribal 
affiliation, can only be accomplished by Congress through comprehensive 
legislation. 
 
                   CONSTITUTIONALITY 
 
  Since the creation of the United States, the treaty relationship 
between Indian tribes and the United States government has engendered a 
long-standing political relationship under the Constitution.  This 
relationship includes a Federal trust responsibility for Indian tribes 
which has resulted in hundreds of separate Federal statutes dealing with 
all aspects of Indian life, including health, education, religion, 
economic development, children, employment, language and culture, gaming, 
and a host of other subject matter areas.  An entire title of the United 
States Code (25 U.S.C.) is devoted exclusively to Indian legislation. 
  Because Indians and Indian tribes occupy a sui generis legal status in  
Federal law under the U.S. Constitution and enjoy a special political  
relationship with the United States Government, separate 

 
                           9 
 
Indian legislation has consistently been upheld by the U.S. Supreme Court  
under the legal principles set forth in Morton v. Mancari, 417 U.S. 535,  
551-55 (1974).  At the urging of the U.S. Department of Justice, the 
long-standing rationale for special Indian treatment by the Federal 
Government was recently applied by the Fifth Circuit Court of Appeals 
regarding the religious use of peyote in Peyote Way Church of God v. 
Thornburgh, 922 F.2d 1210 (5th Cir. 1991).  Finding that the Native 
American Church (NAC) members were also members of federally recognized 
tribes, the Fifth Circuit upheld the constitutionality of the DEA's 
protective regulation against an equal protection challenge: 
 
     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 govern- 
   mental objective of preserving Native American culture. 
   Such preservation is fundamental to the Federal Govern- 
   ment's trust relationship with tribal Native Americans. 
   Under Morton, [non-Indians] are not similarly situated 
   to--NAC [members] for purposes of cultural preservation 
   and thus, the Federal Government may exempt NAC mem- 
   bers from statutes prohibiting possession of peyote without 
   extending the exemption to [non-Indians]. [Footnote 8] 
 
  The Fifth Circuit also ruled that the DEA exemption for NAC members did  
not violate the establishment clause of the First Amendment: 
 
     The unique guardian-ward relationship between the 
   Federal Government and Native American Indian tribes 
   precludes the degree of separation of church and state or- 
   dinarily required by the First Amendment.  The Federal 
   Government cannot at once fulfill its constitutional role as 
   protector of tribal Native Americans and apply conven- 
   tional 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. [Footnote 9] 
 
  Based on the special relationship between the United States and 
Federally recognized tribes, and on Peyote Way Church of God, the U.S. 
Department of Justice testified that Congress has the requisite authority 
to enact H.R. 4230, and that it is constitutionally sound.  Accordingly, 
the Committee is confident that the granting of a statutory religious 
exemption for the sacramental use of peyote solely by American Indians 
presents no equal protection or establishment clause problems, and 
therefore stands on a solid constitutional footing. 
 
  [Footnote 8] Id. at 1216. 
  [Footnote 9] Id. at 1217. 

  
                           10 
  
                COMMITTEE AMENDMENT 
  
  The Committee Amendment to Hl.R. 4230 provides that Federal departments  
or agencies are not prohibited from promulgating regulations establishing  
reasonable time limitations on the use or ingestion of peyote prior to  
performance of official duties by active military personnel, sworn law  
enforcement officers, or personnel directly involved in public safety or  
safety-sensitive positions where the performance of such duties may be  
adversely affected by such use or ingestion.  While the committee is  
unaware of any such problems in the past, it intends to accommodate  
prospective concerns articulated principally by the Department of  
Transportation and Department of Defense. 
  An official of the Native American Church testified at the June 10, 
1994 hearing of the Native American Affairs Subcommittee that the effects 
of peyote do not persist more than 6 hours.  The Committee recognizes the  
medical literature and related studies indicate that mescaline, the  
psychoactive component of peyote, may persist in the brain for up to 9 to  
10 hours, [Footnote 10] and that the physiological effects of peyote can  
last up to 12 hours. [Footnote 11]  The committee therefore deems a 
period of 6 to 24 hours to be "reasonable" as to authorized time 
limitations regarding the use or ingestion of peyote, pursuant to 
regulations the departments or agencies may promulgate under H.R. 4230.  
The committee further believes that, where an agency proposes a time 
limitation exceeding 24 hours, it should be prepared to show such 
limitation meets the balancing test set forth in the Religious Freedom 
Restoration Act.  The Committee is confident that the bill and the 6 to 
24 hour range for time limitations will adequately and amply meet the 
needs of affected departments, and will not adversely impact the ability 
of U.S. military personnel, law enforcement officers or persons directly 
involved in positions related to public safety to maintain good order, 
discipline, security and safety. 
  The Committee does not intend the act to impose requirements that would  
exacerbate the difficult and complex challenges of operating the Nation's  
prisons and jails in a safe and secure manner.  Accordingly, the 
Committee does not intend the Act to require prison officials to either 
prescribe or proscribe the religious use of peyote by Indian inmates.  
Rather, the Committee expects that these matters will be addressed under 
the Religious Freedom Restoration Act of 1993, and that the courts will 
continue the tradition of giving due deference to the experience and 
expertise of prison and jail administrators in establishing necessary 
rules and procedures to maintain good order, security and discipline. 
  
              SECTION-BY-SECTION ANALYSIS 
  
                 SECTION 1. SHORT TITLE 
  
  Section 1 provides that the Act may be cited as the "American Indian  
Religious Freedom Act Amendments of 1994". 
  
  [Footnote 10] See e.g., Oakley and Ksir, "Drugs, Society and Human  
Behavior," Times Mirror/Mosby, St. Louis, 1990, pp. 309-311. 
  [Footnote 11] See e.g., Dorrance, Janiger, and Teplitz, "Effect of 
Peyote on Human Chromosomes--Cyto-genetic Study of the Huichol Indians of 
Northern Mexico," "Journal of the American Medical Association," Vol. 
234, No. 3, October 20, 1975, pp. 299-302. 

  
                           11 
  
  SECTION 2. TRADITIONAL INDIAN RELIGIOUS USE OF THE PEYOTE 
                       SACRAMENT 
  
  Section 2 amends the American Indian Religious Freedom Act of 1975 by  
adding a new "Section 3" as follows: 
      Subsection (a) provides the findings of the Congress. 
  Subsection (b)(1) provides that the use, possession or transportation 
of peyote by an Indian for ceremonial purposes is lawful and is not to be  
prohibited by the United States or any State Government.  It further  
provides that no Indian is to be penalized or discriminated against on 
the basis of the use, possession or transportation of peyote and benefits 
under public assistance programs are not to be denied. 
      Subsection (b)(2) provides that this section does not prohibit 
    the regulation and registration by the Drug Enforcement Ad- 
    ministration of persons who cultivate, harvest or distribute pe- 
    yote under this Act. 
      Subsection (b)(3) provides that this section is not to impact 
    a Texas law governing the growing and distribution of peyote. 
      Subsection (b)(4) provides that departments or agencies are 
    not prohibited from promulgating regulations establishing rea- 
    sonable time limitations on the use or ingestion of peyote prior 
    to the performance of official duties by certain personnel.  This 
    subsection also provides that affected departments or agencies 
    are not prohibited from establishing reasonable limitations on 
    the transportation of peyote on military bases or overseas.  The 
    regulations are to be adopted only alter consultation with rep- 
    resentatives of traditional Indian religions for which the sac- 
    ramental use of peyote is integral. 
      Subsection (c) provides for definitions for terms used in this 
    section. 
  
                 LEGISLATIVE HISTORY 
  
  H.R. 4230 was introduced by Representatives Richardson on April 14, 
1994.  The Subcommittee on Native American Affairs held a hearing on H.R. 
4230 on June 10, 1994.  The Subcommittee considered and unanimously 
passed a substitute amendment to H.R. 4230, which was reported to the 
Committee on Natural Resources.  On July 27, 1994, the Committee on 
Natural Resources considered H.R. 4230 and ordered it to be reported to 
the House with an amendment. 
  
             COMMITTEE RECOMMENDATIONS 
  
  The Committee on Natural Resources, by voice vote, approved the bill 
with amendments and recommends its enactment by the House. 
  
  CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED 
  
  In compliance with clause 3 of rule XIII of the Rules of the House of  
Representatives, changes in existing law made by the bill, as reported, 
are shown as follows (existing law proposed to be omitted is enclosed in 
black brackets, new matter is printed in italics, existing law in which 
no change is proposed is shown in roman): 

  
                                12 
  
      SECTION 3 OF THE ACT OF AUGUST 11, 1978 
  (POPULARLY KNOWN AS THE AMERICAN INDIAN RELIGIOUS 
                    FREEDOM ACT) 
  
SEC. 3. (a) The Congress finds and declares that-- 
     (1) for many Indian people, the traditional ceremonial 
   use of the peyote cactus as a religious sacrament has for cen- 
   turies been integral to a way of life, and significant in 
   perpetuating Indian tribes and cultures; 
     (2) since 1965, this ceremonial use of peyote by Indians 
   has been protected by Federal regulation; 
     (3) while at least 28 States have enacted laws which 
   are similar to, or are in conformance with, the Federal regula- 
   tion which protects the ceremonial use of peyote by Indian 
   religious practitioners, 22 States have not done so, and this 
   lack of uniformity has created hardship for Indian people who 
   participate in such religious ceremonies; 
     (4) the Supreme Court of the United States, in the case 
   of Employment Division v. Smith, 494 U.S. 872 (1990), held 
   that the First Amendment does not protect Indian practitioners 
   who use peyote in Indian religious ceremonies, and also raised 
   uncertainty whether this religious practice would be protected 
   under the compelling State interest standard; and 
      (5) the lack of adequate and clear legal protection for 
   the religious use of peyote by Indians may serve to stigmatize 
   and marginalize Indian tribes and cultures, and increase the 
   risk that they will be exposed to discriminatory treatment. 
  (b)(1) Notwithstanding any other provision of law, 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.  No Indian shall be penalized or discriminated 
against on the basis of such use, possession or transportation, 
including, but not limited to, denial of otherwise applicable benefits 
under public assistance programs. 
  (2) This section does not prohibit such reasonable regulation and  
registration by the Drug Enforcement Administration of those persons who  
cultivate, harvest, or distribute peyote as may be consistent with the  
purposes of this Act. 
  (3) This section does not prohibit application of the provisions of  
section 481.111(a) of Vernon's Texas Health and Safety Code Annotated, in  
effect on the date of enactment of this section, insofar as those  
provisions pertain to the cultivation, harvest, and distribution of 
peyote. 
  (4) Nothing in this section shall prohibit any Federal department or  
agency, in carrying out its statutory responsibilities and functions, 
from promulgating regulations establishing reasonable limitations on the 
use or ingestion of peyote prior to or during the performance of duties 
by sworn law enforcement officers or personnel directly involved in 
public transportation or any other safety-sensitive positions where the  
performance of such duties may be adversely affected by such use or  
ingestion.  Such regulations shall be adopted only after consultation 
with representatives of traditional Indian religions for which the 
sacramental use of peyote is integral to their practice.  Any regulation 
promulgated pursuant to this section shall be subject to the balancing 
test set forth in section 3 of the Religious Freedom Restoration Act 
(Public Law 103-141; 42 U.S.C. 2OOObb-1). 
  (c) For purposes of this section-- 
     (1) the term 'Indian' means a member of an Indian tribe; 
     (2) the term 'Indian tribe' means any tribe, band, nation, 
   pueblo, or other organized group or community of Indians, 
   including any Alaska Native village (as defined in, or estab- 
   lished pursuant to, the Alaska Native Claims Settlement Act 
   (43 U.S.C. l601 et seq.)), which is recognized as eligible for 
   the special programs and services provide by the United States 
   to Indians because of their status as Indians; 
     (3) the term 'Indian religion' means any religion-- 
          (A) which is practiced by Indians; and 
          (B) the origin and interpretation of which is from 
       within a traditional Indian culture or community; and 
     (4) the term 'State' means any State of the United States 
   and any political subdivision thereof. 
  (d) Nothing in this section shall be construed as abrogating, 
diminishing, or otherwise affecting-- 
     (1) the inherent rights of any Indian tribe; 
     (2) the rights, express or implicit, of any Indian tribe 
  which exist under treaties, Executive orders, and laws of the 
  United States; 
     (3) the inherent right of Indians to practice their religions; 
  and 
     (4) the right of Indians to practice their religions under 
  any Federal or State law. 
  
                OVERSIGHT STATEMENT 
  
  The Committee on Natural Resources will have continuing responsibility  
for oversight of the implementation of H.R. 4230 after enactment.  No  
reports or recommendations were received pursuant to rule X, clause 2 of  
the rules of the House of Representatives. 
  
                INFLATIONARY IMPACT STATEMENT 
  
  Enactment of H.R. 4230 will have no inflationary impact. 
  
               COST AND BUDGET ACT COMPLIANCE 
  
  The cost and budgetary analysis of H.R. 4230, as evaluated by the  
Congressional Budget Office is set forth below: 

  
                           14 
  
                                   U.S. CONGRESS, 
                      CONGRESSIONAL BUDGET OFFICE, 
                            Washington, DC, August 3, 1994. 
Hon. GEORGE MILLER, 
Chairman, Committee on Natural Resources, 
House of Representatives, Washington, DC. 
  DEAR MR. CHAIRMAN: The Congressional Budget Office has reviewed H.R.  
4230, the American Indian Religious Freedom Act Amendments of 1994, as  
ordered reported by the House Committee on Natural Resources on July 27,  
1994.  We estimate the implementation of the bill would have no effect on  
the Federal budget or on the budgets of State or local governments.   
Enactment of H.R. 4230 would not affect direct spending or receipts.   
Therefore, pay-as-you-go procedures would not apply to this bill. 
  H.R. 4230 would amend the American Indian Religious Freedom Act of 1978  
by adding a new section that would permit the use, possession, or  
transportation of peyote by Indians for sacramental purposes.  However, 
the bill would not prohibit the Drug Enforcement Administration from 
regulating peyote cultivation or distribution, nor would it prohibit 
Federal agencies from regulating peyote use by certain types of Federal 
personnel prior to performing their official duties. 
  If you wish further details on this estimate, we will be pleased to  
provide them.  The CBO staff contact is Rachel A. Robertson. 
    Sincerely, 
                                       JAMES T. BLUM, 
                                (For Robert D. Reischauer). 
  
                      U.S. DEPARTMENT OF JUSTICE, 
                 DRUG ENFORCEMENT ADMINISTRATION, 
                            Washington, DC, August 3, 1994. 
Mr. TADD JOHNSON, 
Chief Counsel, Subcommittee on Native American Affairs, House of 
  Representatives, Washington, DC. 
DEAR MR. JOHNSON: It is my understanding that H.R. 4230, "American Indian  
Religious Freedom Act of 1994", is nearing floor consideration in the  
House.  You will recall that while the Drug Enforcement Administration  
(DEA) was unable to have a witness at your hearing regarding this matter 
on June 10, 1994, that we did submit a statement for the record.  That  
statement succinctly puts forth the history of DEA's regulation of peyote 
and the exemption for its use in traditional Native American ceremonies.  
DEA has encountered no problems with the use of peyote in these 
traditional ceremonies nor has diversion of peyote been a problem. 
  DEA has had a long and cooperative association with the Native American  
Church, working with them since the early 1970's to assure that our 
mutual concerns relating to peyote are met.  We have worked with its  
representatives to assure that the bill language effectively addresses  
these matters.  DEA supports the passage of H.R. 4230 as it was reported 
by the Committee on Natural Resources with the amendments that address 
public safety concerns. 

  
                           15 
  
  If I can provide you with any other information pertaining to DEA'a  
experience regarding peyote, please let me know. 
    Sincerely, 
                                 DAVID A. MELOCIK, 
                                 DEA, Congressional Affairs. 
  
STATEMENT OF GENE R. HAISLIP, DEPUTY ASSISTANT ADMINIS- 
  TRATOR, OFFICE OF DIVERSION CONTROL, DRUG ENFORCEMENT 
  ADMINISTRATION 
  
Chairman Richardson and Members of the Subcommittee: 
  The Drug Enforcement Administration (DEA) appreciates the opportunity 
to comment regarding H.R. 4230 "American Indian Religious Freedom Act of  
1994."  This bill seeks to statutorily provide for the traditional use of  
peyote by Indians for religious purposes. 
  Almost 25 years ago when Congress began hearings pertaining to the  
Controlled Substances Act (CSA) they decided that the traditional, 
historic use of peyote by members of the Native American Church (NAC) as 
a sacrament in traditional religious ceremonies warranted a specific 
exemption.  Congress determined, to be consistent with past Federal 
practice, this exemption should be specified in regulation rather in law.  
Consequently, an exception was created for the NAC to use peyote for 
religious purposes.  Although the NAC is not defined in the subject 
regulations, the members of this church are required to be Native 
American. 
  The regulation has worked very well for both DEA and the NAC with only  
minor difficulties from time to time concerning the natural supply of the  
drug and the difficulties obtaining peyote outside of the area where it  
grows locally.  In fact, our experience over the years in enforcing this  
regulation has revealed no particular problems of abuse of this substance  
by the NAC or its members.  Unfortunately there will always be 
individuals who seek to circumvent the regulations for their own purposes 
and on occasion, DEA has dealt with groups who have attempted to expand 
the exemption to authorize the use of peyote or other controlled 
substances in what they claimed to be religious ceremonies. 
  On occasion, peyote, who primary active ingredient is mescaline, a  
hallucinogen similar to LSD, has been found in the illicit traffic.  It 
has not been reported by DEA, State or local enforcement agencies to be  
anything other than a sporadic problem.  Despite the fact that the  
regulation allows for the legal use of the drug and the registration of  
legitimate distributors, DEA at this time is not aware of the diversion 
of the drug to any illicit market. 
  Although we at DEA feel that the regulation that has been in place for  
almost 25 years has worked well, we would prefer a statutory exemption 
over an administrative exemption.  We have reviewed H.R. 4230 and could 
support the bill if amended to: (1) restrict the use, possession, or 
transportation of peyote to bona fide traditional ceremonial purposes 
only; and (2) to make clarifying amendments to address public safety 
concerns. 
  DEA and the NAC have maintained a close working relationship to allow 
the use of peyote for religious ceremony without diversion or abuse.  DEA  
believes the passage of this legislation will serve to 

  
                           16 
  
strengthen the uniform application throughout all of the states without  
reprisal to NAC members of this religious exception.  Mr. Chairman, this  
concludes my statement.  I will be pleased to answer any questions that 
you may have. 
  
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