Native American Church v. Navajo Tribal Council (1959)
For roughly four decades following the Big Sheep decision, the latent conflict between certain drug prohibition laws and the religious guarantees of the First Amendment manifested solely within the context of Native American users of peyote and was usually overshadowed by issues of tribal sovereignty. For example in 1959, the Navajo Tribal Council adopted a tribal ordinance making it a criminal offense to sell, use, possess or import peyote within Navajo country.
The ordinance read:
Peyote violations. Any Indian who shall introduce into Navajo country, sell, use or have in his possession within said Navajo country, the bean [sic]1 known as peyote, shall be deemed guilty of an offense and upon conviction thereof shall be sentenced to labor for a period not to exceed 9 months, or a fine not to exceed $100, or both.2
After this ordinance was enacted, a Navajo tribal police officer named Dan Garnea, without a warrant of any kind, barged into a religious peyote ceremony being held in the home of a Native American Church member. Officer Garnea arrested the resident and several other people present at the ceremony. The subsequent legal case came before Judge Joe Duncan of the Navajo court, who summarily declared the defendants guilty of violating the tribal peyote prohibition without permitting them legal counsel or a trial. The case made its way to the Tenth Circuit Court of Appeals.
Before the Tenth Circuit, the Native American Church of North America, representing its members,3 argued that the warrantless raid and arrests followed by the summary conviction by Judge Duncan, violated the NAC members’ free exercise rights guaranteed by the First Amendment of the U.S. Constitution. The NAC members sought to block enforcement of the tribal ordinance (that prohibited them from using peyote even for religious purposes) and sought damages of $5,000 against officer Dan Garnez and Judge Duncan.
In an opinion issued on November 17, 1959, the Tenth Circuit ruled that the Native American Church members could not claim protection under the federal Constitution for acts committed within Navajo country. According to the Tenth Circuit, the First Amendment’s protections, including those which guaranteed freedom of religion, only limited acts of Congress or state legislatures, not ordinances passed by Indian tribes: “No provision in the Constitution,” wrote the Tenth Circuit, “makes the First Amendment applicable to Indian nations nor is there any law of Congress doing so.”4 In short, tribal councils, held the Tenth Circuit, were free to pass tribal laws without worrying about the religious rights (or any others) guaranteed by the federal Constitution.5
Notes
1In erroneously calling peyote a “bean,” the tribal resolution appears to have confused the peyote cactus and seeds from the tree Sophora secundiflora, which were commonly called “mescal beans.” Because the psychoactive constituent of the peyote cactus was named “mescaline,” early anthropologists (and evidently the Navajo Tribal Council), routinely confused peyote with “mescal beans,” which do not contain mescaline. For more on this confusion, see Ott 1996.
2Navajo Tribal Council Resolution No. CJA-1–59.
3Native American Church v. Navajo Tribal Council (1959) 272 F.2d 131.
4Id. at p. 135.
5The same anti-peyote tribal ordinance was challenged again, three years later, by eight Navajo Indians, all members of the Native American Church (see, Oliver v. Udall (1962) 306 F.2d 819). In Oliver, the D.C. Circuit Court of Appelas did not reach the religious freedom issue except to comment that the issue had been raised and rejected by the Tenth Circuit in Native American Church v. Navajo Tribal Council. The Oliver court also noted that an earlier version of the tribal resolution recited that “during the [late spring of 1940], great quantities of peyote” had been brought into the Navajo reservation and that “the use of peyote is not connected with any Navajo religious practice and is harmful and foreign to the Navajo traditional way of life.” The resolution declared the sale, use, or possession peyote within Navajo country, ‘an offense against the Navajo Tribe.’”
