American Indian Sovereignty and the U.S. Supreme Court

by David E. Wilkins

  The next case to be reviewed, Smith II, corroborates this statement fully and shows that even individual Indians remain outside the protection of the Constitution and only have minimal protections of their basic religious rights as American citizens.

  Employment Division, Department of Human Resources v. Smith (Smith II)

  UP AND DOWN THE JUDICIAL STAIRCASE

  Contrasted with our earlier cases, which ascended to the Supreme Court in typical linear fashion—from lower courts (either state or federal trial courts to federal appellate courts or state supreme courts)—and were settled, the route Smith took more closely resembles a judicial yo-yo. Let us quickly capsulize the major events leading to Justice Antonin Scalia’s decision.

  HISTORICAL BACKGROUND

  Alfred Smith (a Klamath Indian) and Galen Black (a non-Indian) were both members of the Native American Church (NAC), the largest and only formally chartered American Indian religious institution, with an estimated 250,000 to 500,000 members (definitions vary as to who may be a member).98 The core element of the NAC service is the sacramental use of peyote, which is a small cactus found in southern Texas and in northern Mexico. While it can be harvested by registered individuals who may be non-Indian, actual use of peyote is restricted to those who are “bona fide” members of the NAC.99 Peyote, according to its adherents, is a living deity and, as such, it is the foundation of the NAC members’ faith. The traditional ceremonial use by Indians of the peyote cactus, dating back thousands of years, is integral to the perpetuation and enhancement of a unique way of life.100 This ceremonial usage is essential for sacramental purposes, and for healing and curing, especially of alcoholism and drug addiction. In some NAC bodies, elements of Christianity have been introduced into the service, although many other branches avoid the integration of Christian elements or symbols into their ceremonies.

  From a western scientific perspective, peyote contains several alkaloids, the most important of which is mescaline, which, when ingested, tends to produce a hallucinatory effect in the user. The federal government has defined peyote as a “controlled substance,” classified it as a “drug,” and listed it on Schedule I of the Federal Controlled Substance Act. The tension between these two diametrically opposite views of peyote—a sacred deity (Indian) and a hallucinogenic drug (western)—is an excellent microcosm in which to view the ongoing religious contentions between tribal peoples and some state and federal policymakers. In this case, as in Lyng, the organic tribal understanding and use of peyote were completely overwhelmed by the Court’s secular/scientific understanding. Furthermore, the evidence that both Smith and Black had prior histories of drug and alcohol abuse that had been corrected by the religious use of peyote and membership in the NAC seemed to be of no consequence to the Court.

  Both men had become substance abuse counselors for a private, nonprofit drug rehabilitation organization, Alchohol and Drug Abuse Prevention and Treatment (ADAPT) in the early 1980s. ADAPT had a zero-tolerance philosophy toward drug and alcohol use that it expected its employees to follow. It was inevitable that a conflict would arise, since ADAPT at the time had classified peyote as a “drug,” whereas Smith and Black recognized it as a holy sacrament. Conflict erupted in the mid-1980s when the rehabilitation firm discovered that Smith and Black had participated, on their own time, in an NAC meeting. They were summarily fired, though on different dates; Black was released on October 3, 1983, Smith on March 5, 1984. The two men applied to the Employment Division of the State of Oregon for unemployment benefits. The agency, however, declared them ineligible because they had been fired for “misconduct.” This was based on the agency’s perception that Smith and Black had willfully violated ADAPT’s standards of behavior, entailing a disregard of the employer’s interests, which were held to be sacrosanct while Smith and Black’s religiously motivated arguments were rebuffed.

  The discharged counselors challenged the state’s denial of unemployment compensation as an unconstitutional infringement on their religious rights. In 1985, the Oregon Court of Appeals reversed the Employment Division’s decision and held that the denial was a violation of the claimants’ free exercise rights.101 The Oregon Supreme Court affirmed this decision the following year.102 The Oregon High Court rejected the agency’s argument that the state’s law enforcement interest in proscribing peyote was relevant in unemployment proceedings. The court relied heavily on the “balancing test” developed by the Supreme Court in an earlier case, Sherbert v. Verner,103 and reinforced in Thomas v. Review Board, Indiana Employment Security Division.104

  The balancing test requires the state to show that any law imposing a heavy burden on a person’s free exercise of religion is the “least restrictive means of achieving a ‘compelling’ state interest.”105 The Oregon Supreme Court held that the state’s interest in preserving the unemployment insurance fund for “deserving” individuals was not compelling enough to allow the state to restrict the claimants’ right to practice their religion.

  The Employment Division of the Department of Human Resources appealed to the United States Supreme Court. The Court granted certiorari on the grounds that the Oregon Supreme Court had ignored the state’s law-enforcement interests. In Smith I, decided in 1988, the Court remanded the case back to the Oregon Supreme Court and forced the Oregon High Court to determine whether the Oregon statute criminalizing peyote provided an exception for religious use.106 But Oregon’s Supreme Court, said Brennan in dissent, had already disavowed “any State interest in enforcing its criminal laws through the denial of unemployment benefits. . . .”107 “Perhaps more puzzling,” said Brennan, “than the imagined ambiguity is the Court’s silence as to its relevance. The Court merely remands these cases to the Oregon Supreme Court for further proceedings after concluding that a ‘necessary predicate’ to its analysis is a pronouncement by the state court on whether respondents’ conduct was criminal.”108 Brennan, joined by Marshall and Blackmun, concluded: “Today’s foray into the realm of the hypothetical will surely cost us the respect of the State Supreme Court whose words we misconstrue. That price is particularly exorbitant where, as here, the state court is most likely to respond to our efforts by merely reiterating what it has already stated with unmistakable clarity.”109

  As Justice Brennan had predicted, on remand the Oregon Supreme Court was constrained to answer the Supreme Court’s question regarding the legality of peyote under Oregon law: no, the Oregon statutes did not make any exceptions for the use of peyote, but the court affirmed its earlier ruling that “outright prohibition of good faith religious use of peyote by adult members of the NAC would violate the First Amendment directly and as interpreted by Congress. We therefore reaffirm our holding that the First Amendment entitles petitioners to unemployment compensation.”110

  This plain statement was the rough equivalent of Justice Brennan’s prediction. As Brennan put it: “I must assume that the [Supreme] Court has tacitly left the Oregon Supreme Court the option to dispose of these cases by simply reiterating its initial opinion and appending, ‘and we really mean it,’ or words to that effect.”111

  Despite the reiterated state court ruling, it was clear that the Supreme Court still intended to have the final say. When it again granted certiorari to the persistent state employment agency, the table was set for Scalia’s First Amendment revolution.

  THE “MOOTNESS” OF SMITH

  This case, which like Lyng should have been considered moot because the issue involved sacramental use of peyote, had already been resolved between the actual parties long before it was decided by the Supreme Court. On March 5, 1986, Smith and Black entered into a federal consent decree with ADAPT. In this federally sponsored agreement, known as Equal Employment Opportunity Commission v. ADAPT, ADAPT agreed that religious use of peyote by NAC members would no longer be considered work-related misconduct and Smith and Black agreed to withdraw their suit. This arrangement affirmed that individuals in similar situations would never again be fired for engaging in the same kind
of “alleged misconduct”112 that occurred in this case.113

  On September 25, 1987, the Oregon State Board of Pharmacy adopted a permanent rule exempting the nondrug use of peyote in “bona fide ceremonies” of the NAC. The exemption was necessary since possession of peyote is considered a class B felony on schedule I of Oregon’s Controlled Substances Act. However, a few weeks later, at the urging of the state attorney general’s office, a temporary rule was issued to suspend the permanent exemption. The attorney general asserted that the exemption might be unconstitutional on the grounds that it gave exemption to a particular church. Ruth Vandever, executive director of the Pharmacy Board, concluded that the Board should seek further advice on the constitutionality of the rule before it became effective.114

  Such “advice” issued from both the Oregon Court of Appeals and two Oregon Supreme Court opinions which, in analyzing the constitutional question, found that although peyote was “illegal” under state law as worded, such prohibition was invalid and violated the free exercise rights of Smith and Black.

  MASKING WITHIN THE DECISION: THE OPINION

  Justice Antonin Scalia, a 1986 Reagan appointee, filled the seat vacated by newly appointed Chief Justice William Rehnquist. And while Rehnquist had long been considered the most doctrinaire conservative, by the end of his first term, Scalia had assumed that mantle.115 Considered by many an intellect of probing logic, Scalia is regarded in other circles as one willing to make imaginative use of the hypothetical in making his points. He has strongly supported starkly conservative ideological positions on the policymaking discretion of the executive, on questions of criminal law, on the rights of property owners, and on the scope of personal and minority rights. Scalia’s raw intellectual prowess, moreover, has led some to refer to him as the “Great Right Hope.”116 His decisions have a particular clarity and consistency because he deifies the legal text or legal statute, avoiding, wherever possible, balancing tests or compromises. Such a focus, however, on legal text alone often means avoiding or denying the real-world impact of the Court’s decisions.

  Scalia began the decision by discounting the Court’s earlier free exercise cases on the basis that the conduct at issue in those cases was not “prohibited by law.” In other words, from Scalia’s viewpoint, peyote had been confirmed to be “illegal,” and it was now the task of the Court to determine whether that prohibition was lawful under the Free Exercise Clause. But, as brought out in Smith and Black’s briefs, in the Oregon Court’s opinion, and in the dissent by Blackmun, the state had never prosecuted Indians for religious use of peyote. Blackmun noted:

  I have grave doubts, however, as to the wisdom or propriety of deciding the constitutionality of a criminal prohibition which the state has not sought to enforce, which the state did not rely on in defending its denial of unemployment benefits before the state courts, and which the Oregon courts could, on remand, either invalidate on state constitutional grounds, or conclude that it remains irrelevant to Oregon’s interest in administering its unemployment program.117

  For Scalia, this reality was irrelevant. He moved to separate and distinguish the right to “believe and profess” religious doctrines from the right to “exercise” religion. Building upon the language of Lyng and citing Sherbert, Scalia agreed that the First Amendment absolutely excluded any governmental regulation of “beliefs as such.” However, he declared that the “exercise of religion,” on the other hand, as carried out by Smith and Black, was a different matter because they sought to go “beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons.”118 In Scalia’s opinion, “[i]t would doubtless be unconstitutional, for example, to ban the casting of ‘statues that are to be used for worship purposes,’ or to prohibit bowing down before a golden calf.” Scalia maintained that governments are justified in enacting “concededly constitutional” laws which in this case only “incidentally” affected the religious practices of NAC members. “We have,” said Scalia, “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”119

  Justice O’Connor vigorously argued against this interpretation of the First Amendment and the effects of generally applicable laws on religious beliefs. As she noted, the First Amendment makes no distinction between religious belief and religious practice. “Conduct motivated by sincere religious belief,” said O’Connor, “like the belief itself, must therefore be at least presumptively protected by the Free Exercise Clause.”120 It is curious that O’Connor chose not to make this point in connection with the Lyng case, in which the exercise of religion was especially important since practitioners of traditional Indian beliefs must travel to religious sites, whereas the NAC ceremony is transportable.

  Moreover, O’Connor attacked Scalia’s allowance of government conduct which manifestly prohibited respondents’ religious practices—without justification—as long as the prohibition was generally applicable. O’Connor asserted, “[A] law that prohibits certain conduct—conduct that happens to be an act of worship for someone—manifestly does prohibit that person’s free exercise of his religion. A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion.”121 Finally, O’Connor opined that the clause makes no distinction between laws “that are generally applicable” and laws that specifically target certain religious practices. “Indeed,” she observed, “few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such.”122

  Scalia, confronted by the precedents in Cantwell and Yoder in which the Supreme Court held that the First Amendment categorically forbade governmental regulation of religious beliefs and that religious beliefs and actions cannot be easily compartmentalized, declared them “hybrid” cases that involved not only the Free Exercise Clause but other constitutional provisions as well. “The present case,” said Scalia, “does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.”123 But there is little denying upon a close reading that those “hybrid” opinions clearly relied on the Free Exercise Clause. And despite Scalia’s effort to marginalize those decisions, O’Connor stated, “. . . we have consistently regarded those cases as part of the mainstream of our free exercise jurisprudence.”124

  Justice Scalia’s primary legal support for this denial of the Indians’ right to practice their religion was the century-old decision Reynolds v. United States.125 In that case, the constitutionality of a congressional law which had outlawed polygamy in the Mormon church, even though the Mormons believed the practice was divinely inspired, was upheld. Apart from the inherently prejudicial nature of the Reynolds decision—why, after all, is polygamy necessarily wrong and monogamy necessarily right?—and the inconsistent reasoning used by Justice Morrison Waite, who argued that if polygamy were allowed on religious grounds, Congress would ultimately be asked to sanction “human sacrifice” or to allow a wife to burn herself upon the funeral pyre of her deceased husband, this decision was inappropriate for two fundamental reasons. First, polygamy, while it had historically been a basic tenet of Mormonism, was not essential to the practice of their religion. Peyote, by contrast, is the “sine qua non” of the NAC members’ faith.126 Second, the Reynolds Court perceived polygamy as a real threat to “democratic institutions and injurious to the morals and well-being of its practitioners.”127 With the exception of one unsuccessful attempt to outlaw it in the early 1900s, peyote has not been perceived in such a threatening light. Nevertheless, Reynolds, not the intervening and more pertinent cases of Cantwell and Yoder, new federal policy directives like the AIRFA, or the exempt status of peyote under federal law and that of more than half the states, was the principal case Scalia relied upon.

  The Mask of Neutrality: A “Compelling” Ouster of the Free Exerc
ise Clause

  The right of individuals to freely exercise their religion, unlike their right to religious beliefs, is not an absolute right with no bounds. Before a state can establish boundaries on the free exercise of religion, the Court has held in a line of cases, but especially in Sherbert v. Verner,128 that the government must “justify any substantial burden on religiously motivated conduct by a ‘compelling state interest’ and by means narrowly tailored to achieve that interest.”129 This test meets the First Amendment guarantee that “religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests. . . .”130

  Scalia, however, drawing heavily from two other decisions which also involved Indians, Bowen v. Roy and Lyng, began by incorrectly asserting, “We have never invalidated any governmental action on the basis of the Sherbert test except the denial of unemployment compensation.”131 He was forced to acknowledge, however, that “we have sometimes purported to apply the Sherbert test in contexts other than that. . . .”132 And, as O’Connor and Blackmun would note in their dissents, Cantwell and Yoder are obvious free exercise cases that explicitly apply the compelling interest test in areas other than unemployment compensation cases.