While carrying out researches on legal cultures, I have always strived for choosing interesting fields. As a result of this, my field of interest has turned to the cultures of the Far-East, to Japan, China and India, whose charm is embedded in their exoticism: extraordinary people, customs, religions, the magic, different law systems and languages.
In the past year I came across the psycho-anthropological works of an outstanding American researcher, Joseph D. Calabrese, and a field that is rather undiscovered within the boundaries of the Hungarian jurisprudence. Thus the idea of unifying the religious practice of peyote ingestion of the Native American Indians and Legal Anthropology was formed, and moreover, as the fruit of my research, this publication was carried out.
First I want to point out the importance of the investigations of the legal anthropologists: the resarch on the problems of the etnic and the religious minorities is significant from a legal standpoint, as legal anthropology enlightens the social aspects of various defects of legal practice.
In the second part of my paper I would like to carry out a research on the ritual use of peyote, a hallucinogenic drug employed by the members of the Native American Church. This subject has been discussed (and misunderstood) by several famous scholars. My intention is to prove my hypothesis, namely that none of these works have taken into serious consideration the fact that the approach towards ceremonial peyote custom must contain the world conception of the homo religiosi, therefore their conclusions remain void in regard of imparting a connotative synopsis of the phenomenon and misinterpret the therapeutic efficacy of the rite. The most general goal of the ceremonies is therapeutic by symbolically depicting the human life-span and embodying this depiction in a symbolic context (the changing of the moon and the dawning of the new day). The potential therapeutic efficacy manifests in the omniscience and omnipresence of the peyote that functions outside the rituals, aiding the adherents to resist excessive drinking. I think that the work of Joseph Calabrese reflects on possibly the most important characteristic features of the ritual peyote use: imparting the decoding of its symbolic structure enlightens a possible way of healing alcohol addicts in the battle against excessive drinking.
When setting forth the research, two questions arose. The first one was what Legal Anthropology is, since this discipline was rather unknown to me; never before had I met it during the course of my university studies and PhD years. And being a Hungarian jurisprudent, it had set me to think whether Hungarian legal anthropology exist. My concerns were answered in "The Main Currents of Legal Anthropology" by H. Szilágyi, István.
John Griffiths explains it as "the research of sociological phenomena in different cultures or societies primarily with the aid of comparative and micro-sociological methods".
As scholars agree upon the definition, the objective of Legal Anthropology lies between the scope of anthropology and jurisprudence. It is an interdisciplinary field: concerning methodological issues, it adopts the methods of anthropology, whereas regarding the objective, it is closer to jurisprudence. In order to understand this discipline, it is inevitable mention - as a science within the framework of cultural anthropology -ethnology that incorporates the comparison of different nations based on material culture, religion and social institutions. The three major differences between anthropology and ethnology are the following: (1) the anthropologist are evolutionists stating that societies follow the same path of evolution, while ehnologists claim the migration of cultures; (2) the anthropological methods are of comparative nature whereas the ethnological procedures are more descriptive; (3) the anthropological field of research concentrates chiefly on primitive cultures; the ethnologist focus on existing traditional cultures outside of Europe. However, from the beginning of the 1950's, the anthropologists scope of research also incorporates the study of modern cultures, therefore the clear differentiation between these disciplines diminished to the extent that their terms of research methods - "ethnological research" and "field work" - are synonyms nowadays.
In Anglo-Saxon territory, the juridical anthropology was a part of social anthropology at the turn of
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the 20[th] century; meanwhile three major directions were shaped in Europe: the German ethnological jurisprudence, the Dutch data-law and the French comparative jurisprudence. That is to say, all currents concerned with the idea of combination/coupling of social and jurisprudence evolution, therefore affected the development of Legal Anthropology to an extent that - after the Second World War -a particular fusion was set forth.
The tracks of Legal Anthropology - the legal ethnographic research - can already be traced in Hungary in the first part of the 20[th] century. The Hungarian legal ethnography develops from the bases of the historical school of Savigny and from the German legal ethnology. One of its first manifestations was the collection of the native customs around the turn of the century. Scholars like Imre Zlinszky and Lőrinc Tóth strongly supported the national legal institutions "that are fused with the life and characteristics of the nation and are deeply rooted in the certitude of the inhabitants". Moreover, they also claim that the productions of a foreign power can be removed in case/provided they suspend the "the magnificent process of native law progression". The evidence of exercising the common law (János Baross) and the Hungarian inheritance customs (Miklós Mattyasovszky) were also examined and unearthed.
The work of Károly Tagányi, titled as "The Living Hungarian Customaries" was published in 1919 with the topic of a meticulous research on the customaries in family law and inheritance law. In 1938 and in 1943, the publications of Gábor Vladár (The Divergence of law From Everyday Life) and Miklós Hofer (Contribution to the Discussion on Native Legal Research) announced - as a legal political argument - the necessity of a matter-of-fact/unbiased Hungarian customary collection that covers the entire country.
However, as a result of the significant change in the political situation, only Ernő Tárkány Szűcs carried on with the academic research that was summed in a monograph titled "Hungarian Legal Customs" in 1981. Eventually, György Bónis regarded legal ethnography as an important source for carrying out research in the field of legal history.
According to Kálmán Kulcsár, the Hungarian legal ethnography cannot be considered as an absolute and independent discipline since it has no past and future:
"The research on native legal practice - disregarding from legal politics aspects - had double face and aimed at achieving different goals. If the ethnographical approach dominates, then it is not more than a simple collection of customs and traditions having legal aspects, however, this pile cannot be regarded as law. Therefore it was a severe inconsequence to consider this compilation - that was mainly unearthed with ethnographical methods - part of the law, as it happened in the past."
The respected scholar suggests the attaching of legal anthropology to the field of legal sociology - to factors that affect the social implementation of law -supporting his idea with two arguments: as modernization progresses, the "folk" will disappear and the "folk" will not possess any right, only the state. The research eventually came to an end...
The 1980s brought a significant change with the publication of "Anthropological Legal Theory?" by Csaba Varga (in 1985); and, moreover, István H. Szilágyi performed research on theory in the past decade. He comes up with the question whether Legal Anthropology is necessary, and examines this question from a multi-faceted aspect: from the point of view of jurisprudence, legal teaching and legal practice. He refers to P. Sack according to whom, the jurisprudence was woken up from its hundred-yearlong positivist dream by Legal Anthropology. Furthermore, H. Szilágyi cites the research of John Griffiths on euthanasia and on the legal protection of tropical forests claiming that the achievements of Legal Anthropology are inevitable regarding the elaboration of strategies of legal regulation. He asserts that Legal Anthropology contributes to the exceeding of evolutionarist historical approach, to the revision of the correlation of the state, the law and the economy. As an instructor at universities, he has experienced how difficult it is for the students to understand legal theory, while the interdisciplinary nature of Legal Anthropology provides the discussion of the main issues of legal theory and legal sociology. Finally he states that for us, Hungarian jurisprudents, this discipline - beyond the boundaries of legal aspect that characterizes the practice - is of great significance in surveying the legal situation of religious and ethnic minorities.
As I have previously mentioned in the second part of my essay I would like to carry out a research on the sacramental use of peyote, a hallucinogenic drug, which is employed by the members of the Native American Church. My intention is (1) to point out the
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most general goal of the ceremonies: to enlighten a possible way of healing alcohol addicts in the battle against excessive drinking, and (2)after this to introduce the Smith case.
In the subsequent chapters I am going to introduce the historical account of peyotism; however, my intention is to provide a firm background for the further discussion of the phenomenon, therefore I aim at conferring onto its characteristic features. Nonetheless, I impart a meticulous depiction of the ritual use of peyote and, moreover, delineate the Ghost Dance Movement, as I deem it is indispensable in regard of peyotism, and after these I am going to present the also nowadays still existing Native American Church, which constitutes the largest single Native American religious tradition.
Peyote, or Lophophora williamsii is a small, low-growing spineless cactus, in a shape of carrot, is largely similar to other small cacti, however, peyote has no branches or leaves except for the young seedlings. The top part of the cactus appears alone above the ground level; normally this part of the plant is cut off and, as a popular method of preparation, it is exposed to the sun in order to dehumidify, and later it becomes the peyote-button. Psychologically, the most important characteristic of peyote is its alkaloid, the mescaline, which causes visual hallucinations or colour visions with the derangement of olfactory, auditory and touch senses.
The mescaline, a phenylethylamine compound also known as 3,4,5-trimethoxy-beta-phenylethyl-amine. Small amount of both natural and synthetized mescaline generates vision and hallucination of a period of 18-24 hours in a state of euphoria; within the first 1-2 hours the endurer suffers from headache, nausea, dizziness and ephidrosis, soon after inchoates receiving vision of colored pictures, and apparently loses the sense of orientation and the track of time while being in a state similar to schizophrenia. DeMallie characterizes the effects of peyote ingestion as: "excitement and exhilaration are sometimes followed by alternation in the sense of time and by auditory hallucinations and optical visions such as brilliance of colors".
The effects of the phenylethylamine compound are listed by Edward F. Anderson in great detail with the major effects including excessive dilation of pupils, sensations of hot and cold, nausea and vomiting, dizziness, discomfort, euphoria, synesthesia of senses and hallucinations. Moreover, he also specifies two very distinct phases of the experience of peyote: the first entails mostly discomfort when nausea and vomiting occur, accompanied with other unpleasant effects including anxiety, profound depression and fear; the second, under the influence of morphine - like alkaloids, heightened sensitivity to sounds and color, euphoria, exhilaration, intoxication and may include delusion of grandeur.
The etymology of peyote traces back to the works of Sahagún, a Cordelier who, dedicated his life to study the native inhabitants of the New World; he recorded the use of "peiotl" by the Chichimeca Indians: "the most commonly used names, 'peyote' and 'peyotl' are modifications of that ancient word". The most widely accepted etymological explanation was provided by A. de Molina:"...it comes from the Nahuatl word 'peyutl', which means, in his words: 'capullo de seda, o de gusano'. This, translated from Spanish, means 'silk cocoon or caterpillar's cocoon
The earliest European records concerning this sacred plant are provided by the above-mentioned Bernardino Sahagún. However, the first published source on peyotism is related to Juan Cardenas, whose observations on the Indies were published as early as 1591; nevertheless, Sahagún's work, Historia General de las cosas de Nueva Espana, is considered as the most reliable and credible description of all early chronicles. He gives an account of peyote use amongst Chichimeca, a desert plateau of the north tribe as "those who eat or drink peyote see visions either frightful or laughable. This intoxication lasts two or three days then ceases". According to his records, the Natives also used peyote to receive "courage to fight and not feel nor hunger nor thirst and...protection from all danger" (Nagy-Lovass).
Dr. Francesco Hernández, who, as the personal physician of King Philip II of Spain was sent to study Aztec medicine, introduced the first full description of Lophophora williamsii. In his report to the royal court Hernández provides an ethnobothanical study of peyote and claims that "wonderful properties are attributed to this root, if any credence can be extended to what is commonly said among them on this point. It causes those devouring it to be able to foresee and predict things" (Nagy-Lovass).
The first tribe on the territory of the United States of America to incorporate peyote into ritual use was the Lipan and Mescalero Apache, who are believed to have received mescaline from the Carizzo tribe of northeastern Mexico around (he turn of the 18th century. However, the majority of the ceremonial rituals were not transferred with the plant; it was rather developed within the framework of Christian rituals as a result of the strong and active missionary pursuit.
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Edward F. Anderson cites the first documented ritual peyote use in the United States of America: the Kiowa and the Comanche were introduced to peyotism by the Mescalero Apaches around 1870 (Anderson), albeit "the Kiowa and the Comanche probably contributed little or nothing definitive to the general shape of the ceremony, most of whose features were already standardized among the Lipan and Mescalero". The relatively quick spread of the peyote cult owes to two distinctive reasons, according to Weston LaBarre: (1) the intertribal wars were suspended in the reservation period, (2) the intertribal connection had already been founded by the first intertribal native religious movement, the Ghost Dance; whence the Ghost Dance paved the way, and its subsequent downfall may have established grounds for new perspectives of the dispersion of peyotism.
The diffusion of the religion was also characterized by the seminating peyote prophets, namely the most famous of them, John Wilson, who is often proclaimed as the founding father of peyotism in the United States of America. Wilson's Peyote Road accounts for the interpretation and the philosophy of the religion received directly from the peyote ingestion, whence reflects on the importance of the mélange of both Christian and traditional peyote ceremonial elements. Furthermore, it erects a moral framework to be observed by his adherents, whereas the anti-Christian Elk Hair anticipates a more traditional, strictly Native American ceremony, however, his followers were soon integrated into the flow of ceremonies and philosophies induced by Ghristianity.
The significance of peyotism reveals in its acting as a beneficial vehicle amongst various Native American groups in establishing strong bonds inasmuch as cultivating tradition within individual cult members; furthermore invigorates the decadent tribal unity and moral not only within tribesmen but also at intertribal level.
The origin of peyote is evoked in the peyote myth as Wilson Arnolith accounts:
As the story goes, this woman was participating in a hunting trip with fellow hunters from her tribe...A group of warriors attacked these hunters and in the process many were unfortunate and others ran to safety. Among the unfortunate was this one woman. She was wounded from the war party, and was left behind by her people to die. Through all of her suffering she became lost and helpless in the desert. But, out of this desolation and terror this woman heard a voice speak to her first through a dream and after she woke from the dream. The voice said to eat the sacred plant that grew beside her that was life and all of the richest blessing for her and her Indian People. Weakly, this woman turned her head against the earth's surface and saw the herb. Its head was divide into five points. These five points are the symbol of man, his belief and his religion. She searched for the plant and seemed to extend outward to meet her fingers. She pulled out the herb and partook of it. Through the partaking of this plant her strength returned and she was healed and cured from her suffering.
The Spanish Inquisition first employed persecution against peyotism, as it considered peyote and its ritual use "the work of the devil" and mainly emphasized its pagan nature and consequently, banned its use in 1660. Moreover, within the territory of the United States, numerous acts and laws were ratified in the attempt to stop peyote use; the majority of these bills was presented on misleading and often false information, and as a result, "serious opposition to the idea of a church with many Christian concepts using peyote surfaced".
The first peyote movement was organized within a framework of a church on October 18, 1918, and was "legally given a certificate of incorporation in Oklahoma City, Oklahoma" (LaBarre), in the territory of the United States. Up to present days, the Native American Church incorporates an approximate number of 250,000 devouts both in the USA and Canada.
The first laws prohibiting peyote use were only at state level in the beginning; however, numerous attempts had been made in order to generalize it to federal stage until it was finally introduced in the Food, Drug and Cosmetic Act of 1965. Soon, the Comprehensive Drug Abuse Prevention and Control Act of 1970 explicitly prohibited non-Indian peyote use. 1990 brought the first precedence case on the ritual use of peyote in the legal history, that was the Smith-case(see later); the US Supreme Court ruled against the State of Oregon on a case where a Native had been dismissed from his job as a result of his involvement in a Native American Church ceremony; or in other terms, it created a precedence where a state "may enforce laws even such enforcement infringes on the religious liberties of a minority within that state" (Anderson). Therefore, so as to avoid controversy, the Religious Freedom Act of 1993 was legislated, and established that the states must have a "compelling state interest to infringe upon religious freedom" (Anderson). Nevertheless, it remained unclear whether it applied to the Native American Church use of peyote. In 1994, the Congress finally amended the American Indian Religious Freedom Act; under its aegis, the right to use peyote by a member of a Native tribe is imparted and secured, however, this act federally protects Indian peyote practice, further legal persecution may occur.
The Peyote Religion cannot be discussed without mentioning the first religious movement that oc-
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curred at inter-tribal level and paved the Peyote Religion's path to a rapid widespread. In my work, I am following the description of Ghost Dance Religion by Raymond DeMallie and Mircea Eliade, and limit my reflection only to its characteristic features.
The Ghost Dance originates from the first half of the 19th century, however, it gained its significance in the later part of the century as being the first inter-tribal religious movement that inaugurated the new means of religious approaches cast upon a rough and elemental Christian experience. It promulgated the coming of universal palingenesis: both the living and dead Indians will be invited to inhabit the revitalized Earth; this heavenly Earth is to be approached by air flying on magic-feathers. Moreover, DeMallie alleges: "in fact, the original tenets of this particular movement promised that it was peaceful adjustment with the Whites that would hasten the restoration of days of Indian prosperity".
The sudden and éclat success and popularity of Ghost Dance owes to the simplicity of its mystical technique: during the expectance of the Redeemer, the worshippers danced continuously for 4-5 days followed by a trance that established a bond in an attempt to communicate between the living and the dead. "In trance, the dancer would be transported to the afterworld where departed relatives would be seen living the life of the prereservation era..." (DeMallie). Besides, the wearing of the ceremonial ghost-shirt implicates the participants becoming of medicine man.
According to the words of Mircea Eliade, this religion basically prophesized the immediate "doomsday", furthermore includes the demolishment of the present world and the emergence of a mixed, although temporary one; this characterizes as well the collapse of the present cosmic cycle as the procreation of a new, heavenly one. As the two visions of the end and the emergence of a world could be related to each other, the Ghost Dance Religion's eschaton manifests the mythic illud tempus, when the communication with the Creator, dead and the Sky could be obtainable by all mortals.
The Native American Church is an intertribal movement and that has spread from its origin point in Oklahoma to various tribes in the United States and Canada through this century. It now constitutes the largest single Native American religious tradition. The religion is characteriseded by the use of the psychoactive peyote cactus as a sacrament.
Sacramental use of Peyote by Native American cultures is a phenomenon that goes back several centuries. This sort of tradition of consciousness alteration was foreign to the European societies that colonized the Americas. The dominant European response was active attempts to eliminate the practice rather than attempts to understand it. The decree against Peyote issued by the Inquisition is likely the earliest piece of anti-drug legislation in the Americas (Calabrese):
Inasmuch as the use of the herb called Peyote has been introduced into these Provinces for the purpose of detecting thefts, of divining other happenings, and of foretelling future events, it is an act of superstition condemned as opposed to the purity and integrity of our Holy Catholic Faith...As our duty imposes upon us the obligation to put a stop to this vice...We order that henceforth no person of whatever rank or social condition can or may make use of the said herb, Peyote... disobedience to these decrees shall cause us...to take action against such disobedient and recalcitrant persons as we would against those suspected of heresy to our Holy Catholic Faith...Given in the Hall of our Court on the 29th day of June, 1620, Licenciado D.Pedro Nabarre
Rationalizations of Euro-American attacks on followers of the Peyote Religion have shifted over the centuries from the eradication of sinful activity, and controlling a supposedly dangerous and medically useless substance. When individual state governments began to ban Peyote, begirining with Oklahoma in the late 1890s, Native North American Peyotists formed themselves into organized churches. This process began in 1909 when the Otoe tribe created "Otoe Church of the First Born". In 1918, the Otoe church evolved into the "Native American Church" and in 1955 the "Native American Church of North America" (NACNA) became a nation-wide intertribal organization with the goal of protecting the sacramental consumption of Peyote. Native Americans succeeded in achieving recognition of their First Amendment rights at the federal level and for the last several decades this exemption for their sacrament has been relatively stable. This stability was destroyed by the Supreme Court's decision in the case of Employment Division of Oregon v. Smith. Through this decision, an activist Court gutted the First Amendment, (see later)
While ingesting peyote, the participant establishes connection with the spirit world, that is to say, through the use of peyote in the ritual, one is able to communicate with the Creator, or God; furthermore, within the framework of the ritual, a species of communion connects the worshippers. Visual and auditory hallucinations, reflections, illuminations are considered as epiphany of the Creator, namely prayers,
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ritual songs, dramming are all regarded as a form of communication on behalf of the peyotist.
The ritual peyote use is normally mustered for specific reasons; the most common is curing, however, ceremonies are also conducted for promoting future good, expressing acknowledgement to the Creator for past blessing, divining and combating sorcery, locating enemy at war, finding lost objects, soothsaying and augury, and, in the case of various tribes, on New Years Eve, Christmas and Easter. Bryce Boyer and Ruth M. Boyer argue that "ritual peyote use was acquired from personal contact with power that approached people while it was invested in peyote flowers or in buttons" (Boyer).
The ritual use of peyote tends to vary from tribe to tribe; nevertheless, a general and universal outline of the ceremonies could be delineated. It is desirable to make a distinction among the native tribes on the basis of their geographical position, thus differentiate between the tribes who live in the habitat of peyote and furthermore those tribes who normally make an errand to acquire peyote. However, the errand is ritualized only in few cases demanding fasting and pilgrimage, rather a modest ceremony is held at the site.
George Morgan accounts for two distinct ceremonies: (1) on the one hand the traditional Half-Moon ceremony that "commonly occurs inter-tribally in the United States"; (2) and on the other hand the Cross-Fire ritual, that is claimed to have adopted various Christian elements and "occurs chiefly among the Sioux of South Dakota and the Winnebago of Nebraska and Wisconsin". In my work I follow both Omer C. Stewart's and Maurice Boyd's description of the peyote ritual.
For the adequate conduct of the ceremony, preliminary essential preparation should be carefully effectuated; "a tipi with its entrance to the east, a crescent shape altar and fire...a drum, feather fan, eagle humerus whistle, gourd rattle, Bull Durham tobacco and sagebrush" (Stewart) as such; in addition to these, Boyd includes mescal bean necklace. The sponsor selects the leader, or himself acts as one; all the cost is at the sponsors expense, although, the other participants of the ceremony may help in the funding contingent upon the peyote has to be purchased, or simply are allowed to consume their own supply of buttons. Beforehand, a ritual, purifying bathe must be taken and, eventually, about nightfall, the participants of the ceremony, namely the chief, the drummer chief, the fire chief, the cedarman, gathers outside of the tipi. The ritual is conducted by the chief as being "the sole director of it; he may base his ceremony partly on visions during previous ceremonies, in other cases, he follows ceremonies that he has participated in, changing or adding details to suit his personal ideas" (Stewart). Consequently, it can be viewed as a function of leadership; the chief is given full authority in regard of the conduction of the rite, moreover, all the participants are obliged to ask permission even in little matters such as leaving the meeting temporarily; in other terms, peyote leadership is a matter of prestige within a tribal-organization owing to the limited number of recognized peyote leaders in the native world. In addition to that, he is the first one to enter the tipi as he "prepares a dirt mound which becomes the crescent-shaped altar representing the moon...[and places] Father Peyote...in the center of the altar upon a bed of sage" (Boyd).
The participants may enter into the tipi anytime after sunset, however, in strict clockwise manner. Eventually, the chief offers a prayer, then takes his designated place in the west of the fire; the fire chief sits north of the door, the drummer chief settles south of the chief "and the cedar chief, who sprinkles dried cedar incense on the fire at several points of the ceremony is seated to his right" (Stewart). Besides the male worshippers, the Water Woman is the only authorized female attendee "responsible for having a bucket of water outside and to right of the tipi" (Boyd)).
The ceremony incepts with the act of "the Bull Durham tobacco is passed and cigarettes are made and lit from the glowing candlestick" (Stewart). The chief is to smoke on the cigarette first, then it is handed over to the other worshippers who normally puff it four times; the fire chief soon "lights the fire and prepares the cedar incense,...the fire and the incense symbolically purifies the bodies and minds of the celebrants" (Boyd). However, Omer C. Stewart reports a different type of purification ritual: "sprigs of sagebush are passed and the leaves are rubbed between the hands, sniffed rubbed over the limbs, and beaten four times against the chest to purify the body" (Stewart). Eventually, the peyote buttons are consumed by the participants; the ingestion varies according to different tribal ritual, albeit, the average portion is four buttons per capita. During peyote-taking no sound is to be heard, since "the partaking of the divine plant during meeting is a sacred procedure and supposed to be accompanied by a silent prayer" (Stewart).
The next significant event is the appearance of the Messenger Bird who "carries their prayer to the Spirit Powers and...its outstretched wing symbolizes the flight to the unknown" (Boyd). The presence of the Messenger Bird is perceived "mentally flying within the tipi" (Boyd), and its phylon heavily depends on the mythology and cosmology of worship-
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pers. For example, in the case of the Kiowa, it is a cormorant as it is "strong enough to carry the heavy prayers of heartache and repentance, and swift enough to reach the outer limits of space where the mystery powers dwells" (Boyd). Moreover, the Messenger Bird is also considered as the integrated part of the Messenger Power, "who is the unifying force between...the Spirit Powers,..the Earth and Spirit Power and Sun Power " (Boyd).
In the postmeridian, the participants tend to "smoke the sacred pipe or cigarettes, sings and prays, and drops into euphoric contemplation" (Boyd), as "only four songs have to be sung at fixed times: the Opening Song, The Midnight Water Call, the Morning Water Call, and the Closing Song" (Stewart). It is the time of individual communion with the Spirit Powers whence "the door beauty opens, and the member passes trough; an inanimate plant may become suddenly alive, writhing in colorful greens... supernatural power fills the lodge as twisting figures ride with the smoke of the fire" (Boyd). Humphry Osmond gives an account of a peyote night narrating "there was a ghost of brilliant color in my eye grounds when I closed my lips, I felt remote and slightly depressed, the roof flap fluttered like a lost soul, the teepee is the microcosm, a tiny mirror of the universe" (Osmond). Havelock Ellis claims to experience similar visions induced by peyote ingestion in a non-ritual peyote rite, moreover, describes if so "the mescal produces exactly the same conditions of visual hyperesthesia, or rather exhaustion, as may be produced on the artist by the influence of prolonged visual attention" (Ellis).
Reports on extra-carnal experience were collected: "more than once during a ceremony I suddenly felt as though I had left my body, passing into a person sitting across from me and looking through his eyes at me" (Morgan). Moreover, it is interesting to note inasmuch as a non-native uses peyote within the context of non-ritual peyote ceremony, the perceived auditory and visual hallucinations are strongly related to Indian symbolism (Nagy-Lovass).
The next phase of the ritual commences at midnight; the ritual is suspended for a short period of time, the Water Woman is called and "after receiving a prayer of blessing from the Priest, she walks counterclockwise to serve water, first to the Priest and then to the other participants" (Boyd), immediately followed by "the Midnight Song...and prayers are offered through four puffs of smoke" (Stewart).
The rest of the night is dedicated to further prayers and ingestion of more peyote buttons, and in some ceremonies, namely the Kiowa, the worshippers may perform a war dance in the deepest reverence (Boyd). The morning prayer is chanted at sunrise, and finally the chief calls the Water Woman in for additional supply of water; the chief and the Fire Chief leaves the tipi indicating the termination of the ritual; eventually "women...bring food to the celebrants and a joyous reunion with the family members occurs at breakfast" (Boyd).
Calabrese's work examined the Native American Church, which is an illustrative example in the political anthropology of consciousness. Specific attention is paid to the Supreme Court's ignoring of accepted research on the sacramental use of the peyote, in the case of Employment Division of Oregon v. Smith. Peyote, as used in the Native American Church, is recognized as safe and therapeutic. It is also argued that the Supreme Court's rationale for denying Peyotist religious freedom is not supported by the ethnographic findings nor by legal precedent. The ritual use of peyote is not only the right of the Native Indians, this is a matter of freedom of religion, it also involves other "rights such as the right to raise one's children in one's own culture and the right to be treated using a culturally relevant therapeutic modality".
Calabrese alludes to the paradox, which characterized the research on consciousness. On the one hand, consciousness alteration practices are viewed by many contemporary anthropologists, as too exotic to be taken seriously. But this sort of dismissal ignores the fact that we live in such an age, in which the most intimate aspects of our privacy (sexuality, morality, and consciousness) have become matters of political debate and disruptive intrusion of the state. Thus, paradoxically, even though it is dismissed as too frivolous a topic for serious scholarship, consciousness alteration is actually one of the most important and divisive issues of the world.
The political and social significance of consciousness alteration is manifest in many fields. For example in the United States hundreds of nonviolent drug offenders crowd prisons for the victimless crimes of wanting to explore some control over their own boundaries of state of consciousness. As a result, the "Land of the Free" is now a world leader in the imprisonment of its own population. Over a million Americans are imprisoned for nonviolent crimes. Nonviolent drug offenders can be considered political prisoners, especially when one realizes that eth-
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nic minorities have been targeted for imprisonment by the dominant white culture. A critical remark: if you are a poor black substance abuser, you can spend your life in prison; if you are a rich white substance abuser, you can become President of the United States.
Being a clinician in the state mental hospital, Calabrese had experienced how deeply the hospitals and the pharmaceutical factories are politically influenced. The powerful consciousness altering medications have gained dominance as the treatment of choice. These synthetic inventions of politically powerful drug companies are pushed with television commercials, vast amounts of funding, and free lunches and gifts to clinicians. The natural plant-based psychoactives that have been used therapeutically for hundereds of years are labelled "drugs" and are outlawed with the specification that they have no possible therapeutic value. Only the most damaging psychoactive substances (alcohol and tobacco) remain legal.
That's why the therapeutic use of the psychedelic Peyote cactus by Native Americans is a fascinating case study for the jurists in the legal-political anthropology of consciousness:1..Native American Peyote use is an example of a tradition of controlled and prosocial use of a psychoactive substance that predates Euro-American psychopharmacology and the modern drug problem. 2.this tradition has been subject to attacks at control by Euro-Americans since the Spanish conquest of the Aztecs and has been at the center of contemporary politics as a result of the Supreme Court's intervention in the case of Employment Division of Oregon v. Smith, 494 U.S. 872 (1990). 3.in contemporary North America, this tradition of consciousness alteration seems to represent a paradox within a paradox: a Schedule I substance (by definition having no valid therapeutic applications according to the federal government) nevertheless at the center of a functioning therapeutic tradition within the United States and recognized and coded as a valid treatment modality by the United States government's Indian Health Service.
Of course, the paradox is only an illusion. Calabrese has done clinical work with adolescents on the Navajo Indian reservation, and had training in anthropology and cultural psychology, established, that participation in the Native American Church would have beneficial results for many persons with substance abuse and mental health problems. He has developed, through fieldwork and clinical work, of how Peyote use contributes to positive health outcomes for Native Americans. This experienses are based on ethnographic observations and on living and working among Navajo Peyotists, but it is just as much areflexive ethnography focused on aspects of my own Euro-American cultural tradition, particularly the assumptions and behaviours of the United States Supreme Court.
It seems clear that, when we discuss the Native American's right to use Peyote, we are discussing not only an issue of religious freedom, but also issues of freedom of culture and freedom of therapeutic modality.
As such, Calabrese's paper represents a call to understanding of the diverse ways that human populations have found to support their mental and physical health and maintain their cultural identities.
Alfred Smith, a member of the Klamath tribe, was born on the Klamath reservation in Oregon but was removed from his family at the age of eight and placed in a special sort of school. These schools were set up by Euro-Americans for Native Americans with the purpose of cutting out Native American children of their own cultures, languages, and identitis. The aim was to destroy the Native American cultures or, as the founder of the Carlisle Indian School Richard Pratt explained it, to "kill the Indian and save the man." It is no wonder that Mr. Smith became an alcoholic as a young adult. At the age of thirty-six he was able to stop drinking with the help of Alcoholics Anonymous, and was able to begin a new path that would lead to rediscovery of his Native American identity, including participation in sweat lodge and Native American Church ceremonies. Smith found his new life pursue: helping other Native Americans who were suffering from alcoholism.
In 1984, Mr. Smith was employed by a substance abuse treatment facility in Roseburg, Oregon to help develop services that were suited to Native American clients. It sounds ironic, but it is true, when the director of the facility heard that Mr. Smith was a member of the Native American Church, he ordered Smith to stop attending church meetings.
A non-Indian coworker, Galen Black, who had also attended the ceremony, was also fired. Smith and Black filed claims for unemployment compensation and this began six years of litigation. A long line of Supreme Court cases holds that states must pay unemployment compensation to employees who lose their jobs because of their religious beliefs. The Oregon Employment Appeals Board ruled that Smith and Black were not entitled to benefits but the Oregon Court of Appeals ruled that they were entitled to benefits. The state's Attorney General challenged this opinion but it was upheld by the Oregon Supreme Court. The Attorney General then referred the
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case to the United States Supreme Court. The U.S. Supreme Court vacated the judgment, deciding (in seeming ignorance of the First Amendment and established jurisprudence regarding Native Americans) that Peyote is illegal and if Oregon could send Smith and Black to prison for using Peyote, it could surely refuse to pay them unemployment compensation.
To the majority Justices, the religious freedom became, in the words of Justice Scalia (who wrote the majority opinion), a "luxury" we can no longer afford in an increasingly diverse society. The Native American Church member who ingested Peyote, and whose right to do so was previously given, was now to be considered guilty (Employment Division of Oregon v. Smith, 494 U.S. 872 [1990]). In order to rationalize this finding, the majority justices invented a strange "two constitutional rights is better than one" hybrid test: it was argued that religious freedom can be protected against generally applicable laws only when the case involves other constitutional protections, such as free speech or the right of parents to direct the education of their children.
This decision could only be reached by ignoring a century's worth of ethnographic research findings on the Native American Church. In the sections that follow, an anthropological response to this finding will be crafted, highlighting the evidence that was ignored by the court in three areas: evidence of the safety of Peyote, evidence of the therapeutic uses of Peyote by Native Americans, and evidence relevant to the claim that this case does not involve other constitutional protections.
Justice Scalia claims that the Supreme Court has "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law protabiting conduct that the State is free to regulate." He also claims that religious freedom is protected against generally applicable laws only in conjunction with other constitutional protections, like the right of parents to direct the education of their children (Pierce v. Society of Sisters, 268 U.S. 510 [1925], Wisconsin v. Yoder, 406 U.S. 205 [1972]).
According to Scalia, "The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right." Outlawing Peyote does interfere with the established right of parents to raise their children in their own religious tradition and the continued existence of their cultural tradition is what Smith was arguing for. Scalia states that Oregon law hinder people in "communication of religious beliefs or the raising of one's children in those beliefs" but this claim rests on Eurocentric views of "religion" as a matter of belief or faith. As Scalia writes, "The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires" (Employment Division of Oregon v. Smith, 494 U.S. 872 [1990]). In the NAC, beliefs are not simply transmitted from one member to another verbally; rather it is believed that one must come upon one's beliefs independently through the sacramental experience of Peyote consumption (Calabrese 1994). This was the essential difference between Native American religions and Christian religions identified by the Indian leader and Road Man Quanah Parker. According to Parker, when the white man goes into his church he talks about Jesus, whereas the Indian goes into his tipi and talks to Jesus. As the elderly Road Man Mike explained:
When you ask me "what do you see?," "how does it work?" - really you yourself have to be the judge of that when you partake of this medicine - when you go into a ceremony. You have to partake of it yourself [Mike]
It is well known that other cultural traditions place much more emphasis on practice and the socialization and education of children relies on traditional ritual-based modes that often involve altered states of consciousness (e.g. Grob and Dobkin de Rios 1994). The First Amendment itself does not distinguish between religious belief and religious conduct. In addition, when Scalia states that the Court has "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," he is ignoring statements of his own court such as that in Wisconsin v. Yoder. "A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion" (Wisconsin v. Yoder, 406 U.S. 205 [1972]).
Thus, Peyote use is even implicated in the transmission of religious beliefs and knowledge. According to the Supreme Court in Wisconsin v. Yoder, "the Court's holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children." But that right was not given in the Peyotist case, no doubt primarily because the majority justices are more ethnocentric towards Native Americans than to the more culturally familiar Amish who educate their children verbally rather than with communal rituals involving consciousness alteration. (The Amish are a religious group from the Netherlands which came into being in 1693, when sen. Jacob Ammann proposed stricter faith to mennonits. They arrived in North-America and Pennsylvania between 1727-1790, and they established the Pennsylvanian Dutch ethnic group. Amish are a more conservative, closed company: they speak their own dialect at home and masses. They wear their
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traditional, simple and dark clothes nowadays too: men cover their heads with black, flap hats, women with white muslin bonnet or hat. They do not use the technological inventions, equipments, electric appliances, or telephone. Amish children participate in the housework, do their share on the farms after leaving primary school. Amish do not built churches, but each Sunday 15-20 families assemble for a holy ceremony, after that comes a big lunch or business meeting at a host family.)
Peyote plays the main role in parenting, because the peyotists take it for an omniscient spirit, functioning as a teacher, healer, protector and guide for life. Peyote is referred to as "Mother Peyote" or "Father Peyote" and it acts as a sort of parental figure, enforcing moral prohibitions (especially against alcohol consumption) when parents are not present. Because "nothing is hidden from it from horizon to horizon " Peyote is often associated with Christ by Peyotists (deity made flesh) and sacramental ingestion of Peyote is required for a true communion with the spirit. This omniscient spirit obviously has a role in raising children in an alcoholfree lifestyle.
LaBarre suggests that this belief that Peyote "sees and punishes evil deeds" may go all the way back to the Huichol and Tarahumara tribes of Mexico, making it one of the most important Mexican influences on the Native American Church and thus one of the oldest features of the religion.
A narrow legal interpretation may hold that other rights such as the right to raise one's children in one's religion or the right of medical autonomy were not explicitly asserted by the Smith case. But it is clear that Smith could not foresee the Court's abandonment of the compelling interest test they had previously adhered to, or Scalia's invention of a bizarre "hybrid" test. Smith came to claim his right to religious freedom. But in a legalistic shell game, Scalia made the First Amendment right to religious freedom disappear: a right that requires another right for it to be recognized is no right at all.
Justice Blackmun described the Court's ignoring of evidence contradicting the view that sacramental use of Peyote is dangerous in his dissent to the Smith opinion:
"In this case, the State's justification for refusing to recognize an exception to its criminal laws for religious Peyote use is entirely speculative...there was no opportunity for factfinding concerning the alleged dangers of Peyote use. What has now become the State's principal argument for its view that the criminal prohibition is enforceable against religious use of Peyote rests on no evidentiary foundation at all."
The ethnographer of the Native American Church stresses, that the Court allowed itself to ignore not only:
(1) evidence contradicting the alleged danger of Peyote ingestion, but also
(2) evidence contradicting the argument that Peyote has no therapeutic use and
(3) evidence contradicting Scalia's implication that there are no other constitutional protections relevant to this case.
The Attorney General of Oregon, in his arguing against the view that Peyote use by Native Americans does no harm, claimed that the scholarly literature doesn't give us information neihter about the proper use of the peyote nor about the harm it could cause. This statement ignores much relevant research, as a large number of the literature on the Native American Church does address the question of how danger is avoided. As Calabrese wrote: specific protective factors include the positive expectations that derive from cultural beliefs about Peyote, the controlled nature of the ritual environment, cultural explanations for adverse effects, self-limiting dosage because the natural plant form is used, etc. But the most relevant piece of information that is side-stepped by the Attorney General's framing of his question concerns not how harm is avoided but the very fact that harm is avoided. An elderly Road Man whom I interviewed and who has used Peyote regularly for over 40 years stated this fact clearly:
When I first joined the Native American Church, there were a lot of people saying that when you use this herb, your life will only last - from the time you start using it -maybe 4 or 5 or 6 years and that was it. That's what people were saying at that time. And that was 40 years ago. [Mike]
The Court ignored the several research studies that have found Peyote to be harmless when used properly. The alleged safety concerns in this area have to do with emotional or behavioral disturbance, psychotic reactions, and chromosome damage. Oscar Janiger, a physician at the University of California-Irvine Medical School, and his colleagues investigated the question of chromosome damage among Native Americans who use Peyote ceremonially. They compared a group of Huichol Indians who used Peyote from childhood with another group of Huichol who did not use Peyote. They found that there was no difference in chromosome damage between them. In a similar study, Bloom and his colleagues (1970) went to the Yanomamö Indians of Venezuela and found no difference in chromosomal damage between males and females despite the fact that only males participated in ceremonial hallucinogen use.
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As was stated, Schedule I substances are believed to have no therapeutic uses. But the primary reason Native Americans take Peyote is for "healing." In fact, Peyote is typically referred to using the English word "medicine" (and the Navajo word commonly used by Navajo Peyotists to refer to the Peyote cactus is azéé, which also translates as "Medicíne"). This belief in Peyote's therapeutic efficacy is not limited to Native Americans but is also in agreement with reports from several Euro-American psychiatrists, psychologists, and ethnographers that Native American Peyote use does not produce illnesses and, in fact, seems to benefit many Native American communities. The excellent psychiatrist Karl Menninger wrote:
Peyote is not harmful to these people; it is beneficial, comforting, inspiring, and appears to be spiritually nourishing. It is a better antidote to alcohol than anything the missionaries, the white man, the American Medical Association, and the public health services have come up with.
Twenty years earlier, in 1951, five scholars who had observed and studied the Native American Church, Weston LaBarre, David McAllester, J. S. Slotkin, Omer Stewart, and Sol Tax, published a Statement on Peyote" in the journal Science supporting Peyote use by Native Americans. This protectionist stance was recently reaffirmed in a public statement by the American Anthropological Association in 1993 supporting the legitimacy of the Native American Church.
In 1994 Calabrese investigated the ways to understand the therapeutic effect, which may play a role in the positive outcomes from Peyote use. In his analysis of the symbolism and the larger cultural meaning of the Peyote ritual, he found that the Peyote ritual has the symbolic structure of a death and rebirth mediated by the Peyote spirit present in the meeting. Another important factor in the symbolism is reflexiviry or self-awareness, embodied in the crescent moon altar as a symbol of one's life-course. Many Peyotists state that the Peyote experience made visible to them their antisocial behaviors, and realised the need for change. Consider the following account of a Peyote vision:
One member of the NAC related an event that had occurred during a Peyote meeting several years before when he was attempting to resolve his long-time drinking problem. During the meeting, a tiny man appeared to walk out of the ceremonial fire and up the side of the low, crescent-shaped, earthen altar to the center of the "Peyote road" that is drawn along the top of the altar. The tiny man paused for a long time as if he were trying to decide in which direction to walk. The tiny man finally took the path that led him to the way of the Peyote religion rather than the path that led to a continuation of drinking. The patient interpreted this vision as an omen indicating that he should no longer continue drinking but should return to the Peyote religion from which he had strayed. This was a turning point in his life. At the present time, he frequently attends Peyote meetings, remains abstinent, has reestablished his family, and holds a job working with Indian alcoholics. (Albaugh and Anderson)
The tiny man in the vision described above may represent the Peyote spirit or may be considered a self symbol, modeling the desired behaviors. The symbolism of the Peyote meeting may very likely support the therapeutic goals of the ritual by symbolically depicting the human life course by natural transformative processes (gestation and birth, the changing of the moon, etc.). The Peyotists themselves are embedded in a powerfully symbolic natural transformative process, as the ritual begins at night and ends in the dawning of a new day. Peyote is well equipped to open the mind to these cultural messages by inducing a spiritually oriented self-reflection. This enables culturally valued, therapeutic cognitive and emotinal restructuring.
Calabrese mentioned in his paper the pharmaceutical research which is done on psychedelics because of the potential they show in treating addiction. Much of this research focuses on the hallucinogen ibogaine, the psychoactive component of a shrub used ritually in the African Bwiti religion (Fernandez), but it has been suggested that the effects may generalize across all major hallucinogens. Ibogaine is being used therapeutically by addict self-help groups in the United States and Europe to treat cocaine and heroin addiction and it is claimed that ibogaine allows people to quit these addictive drugs without experiencing withdrawal symptoms.
Whether we understand Peyote's therapeutic efficacy in terms of traditional anthropological understandings of ritual process and symbolism or in terms of psychopharmacological effects (or a combination of both), the ethnographer of the Native American Church invariably encounters testimonies of a substance abuse problem or other problem that has been altered by participation in the Native American Church, leading to recovery and abstinence from alcohol and drug abuse.
The case of Native American use of Peyote and the Supreme Court's response to it suggests that it would be profitable to combine legal and ethnographic knowledge . In the coming decades, the Supreme Court will likely be called to decide on many cases dealing with the rights of minority subcultures, and
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It might be better if the Court took into concideration the established anthropological knowledge. The Native American Church is a paradigmatic example of an ancient way of life struggling to survive in a modern world dominated by Euro-Americans. The Supreme Court could have used some basic understanding of Native American approaches to mental health and child rearing, the role of ritual in the evolution of human societies, and the federally recognized role of Peyote Ceremonies in contemporary healthcare services on Indian reservations. Calabreses oppinion is, that the fact ignoring of this con-sensually validated knowledge, is curious at best, but more likely an inexcusable abuse of power.
As Lawson and Morris (1991) point out, there is an "unavoidable hypocrisy" in the Smith case that derives from the fact that both the State of Oregon and the federal government continue to profit from the sale of alcohol and are now attacking a major source of strength that Indians have found in their own efforts to combat alcoholism. Alfred Smith was employed by a substance abuse treatment program and was a member of the Native American Church and there is no contradiction between these two roles. If his employers were truly interested in providing culturally relevant services for Native American clients, they would have found out that the Native American Church's approach is one of the most successful in this area, recognized by the Indian Health Service and a host of scholars.
This paper has argued that, the Smith case did not simply involve freedom of religion but also freedom of culture (e.g. raising one's children using traditional methods) and freedom of therapy (implicating a medical autonomy right). Freedom of therapeutic modality is a new concept but one that follows from the view that human societies have developed unique ways of understanding and adapting to their environments and sustaining mental health. These adaptations have included psychopharmacological traditions that cannot be reduced to "drug use".
The Native American Church is considered a mental health system with a ritual pharmacological intervention, an associated aftercare plan, a support network involving a community of non-abusers, and a philosophy of life. In either case, outlawing this tradition is thus unethical from a clinical and human rights point of view because it amounts to the disruption of a functioning therapy. If we remove the Native American's right to use Peyote, we will destabilize a fragile mental health equilibrium for hundreds of thousands of Native American people.
The objective of this part of my paper was to maintain, with arguing in favor of Calabrese's hypotesis, that the therapeutic nature of this ritual peyote use can be revealed. My main concern was that the potential therapeutic efficacy of ceremonial use manifests through its symbolism in a feedback process. In my interpretation the ritual peyote use must be viewed through the lenses of the homo religioso. In this context, ritual peyote use is considered in terms of exclusive mental health adaptations including symbols to support socially valued pattern of ceremonial experience, self-awareness and emotional control. The meaning of the ceremony is embedded in its symbolism: the potential therapeutic significance is not solely contingent upon its psychoactive action or sociological features, but it also manifests in the symbolism. The life-course of the individual is symbolized in the ritual, and furthermore, it is embedded in a symbolic context that highlights the natural transformative processes of birth, the changing of the moon, and the dawning of a new day. That is to say, the symbolism of the ritual and the benevolent therapeutic efficacy of it are in a complementary distribution; they function within the framework of a feedback process. Therefore, the symbolism in peyote rite acts as the very vehicle of the ritual procreation of self-awareness, which, in turn, is a tool of the potential therapeutic efficacy of ceremony. Moreover, as I have proved, peyote bears dual significance in this concept and it is regarded as omniscient and omnipresent. This omniscience and omnipresence manifests and is perceived by the members universally; this characteristic feature helps the adherents of the Native American Church to combat excessive drinking.
In the abstract of my essay I wrote about my intention to point out the significance of the investigations of legal anthropologists: how important the resarch on the problems of the ethnic and the religious minorities can be from the legal aspect. The case of Mr. Smith, which caused upheavel in the society and devided the legal community, reflects on the difficulty, that the rigid implementation of the law should be avoided, thus the adjustment of the rules to everyday life is indispensable. The achievements of the legal anthropological research methods are necessary in the legal practice: to enlighten the social aspects of various defects of legal practice. In the future, the courts will likely be called to decide on many cases dealing with the rights of minority subcultures, and it might be better if the courts took into concideration the anthropological knowledge, so they would not accused of abuse of power.
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Lábjegyzetek:
[1] The Author is a PhD student.
Visszaugrás
