NAC-SNM. Vigilance remains essential.

History shows us that government policies and public attitudes can change. History also shows us that laws and regulations can change. We also know that written history is sometimes misconstrued or misinterpreted. This is one of those moments.

In a matter unrelated to the Native American Church, the Department of Education (Dept. of Ed.) recently asked their lawyer, the U.S. Department of Justice (DOJ), for advice about whether the Dept. of Ed. administered programs based on race or ethnicity meet constitutional standards. Dept. of Ed. wanted to know which of their programs met constitutional standards and which ones did not so they could determine which programs would continue to exist and those programs that would be terminated.

Interestingly, in 1981, a similar question was asked about whether a federal agency regulation met constitutional legal standards. In 1981, the federal agency seeking legal advice was the Drug Enforcement Agency (DEA).  At that time, the DEA asked their lawyer, the DOJ, whether their 1965 federal regulation[1] that exempts the ceremonial use of Peyote in religious ceremonies of the Native American Church was constitutional.

In their recent advice to the Dept. of Ed., the DOJ lawyers referenced the 1981 opinion discussing the Peyote Exemption. In their advice to the Dept. of Ed., the DOJ used the Peyote Exemption as an example that protections based on culture or religion—rather than on the political relationship between tribes and the federal government—may be unconstitutional.  DOJ’s reference to the Peyote Exemption in this context directly conflicts with current federal law and long‑standing legal decisions.

Things have changed since 1981. In 1994, Congress addressed the constitutionality concerns about the Peyote Exemption raised by DOJ in 1981. Through the American Indian Religious Freedom Act Amendments of 1994, Congress clearly tied peyote protection to tribal political status. Congress recognized the Native American Church as an Indigenous ceremonial practice that is deeply connected to tribal identity, land, and culture. Further, AIRFA 1994 established a statutory right protecting the traditional ceremonial use of Peyote by a member of an Indian Tribe.[2] This protection is based on political status, not religion.

The protections that the Native American Church community fought hard to secure are not unconstitutional. A U.S. House of Representatives report explained this clearly. It stated that because of the special relationship between the United States and federally recognized tribes, Congress has the authority to pass AIRFA 1994. The report also confirmed that the law does not violate the Constitution and does not raise equal protection or religious establishment concerns. It reads,

“Based on the special relationship between the United States and federally recognized tribes, the U.S. Department of Justice testified that Congress has the requisite authority to enact [AIRFA 1994 Amendments], and that it is constitutionally sound.  Accordingly, the [House] Committee is confident that the granting of 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.”

Even though AIRFA 1994 is based on the federal government trust responsibility to protect tribal culture and traditions being informed and staying alert is still necessary. The 2025 DOJ memo will likely be shared with other federal agencies, beyond the Dept. of Ed., and may influence how these other federal agencies interpret and apply the law.For this reason, defending tribal sovereignty remains critical. So does honoring the federal trust responsibility, engaging in meaningful consultation with tribes, and respecting the protections of AIRFA 1978 and AIRFA 1994. In keeping with the mission of NAC-State of New Mexico to support and safeguard American Indian religious, ceremonial and traditional practices held sacred since time immemorial, we stand in solidarity with the Native American Rights Fund, the National Congress of American Indians, the Coalition of Large Tribes, the NAC community and with Tribal Nations across Indian Country. Together, we remain committed to honoring and safeguarding tribal culture and ceremonial traditions as essential parts of tribal sovereignty.

Vigilance remains essential.

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