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Peyote vs. The State: Religious Freedom on Trial

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The story of the constitutional showdown over Native Americans’ religious use of peyote

With the grace of a novel, this book chronicles the six-year duel between two remarkable men with different visions of religious freedom in America.

Neither sought the conflict. Al Smith, a substance-abuse counselor to Native Americans, wanted only to earn a living. Dave Frohnmayer, the attorney general of Oregon, was planning his gubernatorial campaign and seeking care for his desperately ill daughters. But before this constitutional confrontation was over, Frohnmayer and Smith twice asked the U.S. Supreme Court to decide whether the First Amendment protects the right of American Indians to seek and worship God through the use of peyote. The Court finally said no.

Garrett Epps tracks the landmark case from the humblest hearing room to the Supreme Court chamber—and beyond. This paperback edition includes a new epilogue by the author that explores a retreat from the ruling since it was handed down in 1990. Weaving fascinating legal narrative with personal drama, Peyote vs. the State offers a riveting look at how justice works—and sometimes doesn’t—in America today.

ISBN-13: 9780806140261

Media Type: Paperback

Publisher: University of Oklahoma Press

Publication Date: 03-01-2009

Pages: 296

Product Dimensions: 5.40(w) x 8.40(h) x 0.70(d)

Garrett Epps, the author of four books and a former reporter for the Washington Post, is Professor of Law at the University of Baltimore.

Read an Excerpt

Chapter One


No one who sees Al Smith doubts that he is a full-blooded Native American. He is compact, wiry, and athletic; his face is a study of light and angles; and his skin is the color of rust. His hair (black when he was young, iron-gray now) hangs nearly to his waist, thick and straight even though, a decade after the Supreme Court case that bears his name, he is eighty years old. His eyes have a distant look, as if he is seeing something others cannot. The overall effect is formidable, almost iconic.

But the bland name—Al Smith—clashes with his appearance. Al knows it, and he senses that strangers are disappointed when they hear it. In order to live up to his appearance, Al Smith long ago chose what he calls his "restaurant name"—Red Coyote. In public, among strangers, he will give that name, so that when the hostess calls "Red Coyote, table for four," onlookers will not be disappointed.

Alfred Leo Smith Jr. is a member of the Klamath tribe of southern Oregon—a people who have lived by the great Klamath Lake since Kamukamts, the Ancient Old Man who made the earth and the sky, brought them forth to win a bet with Pocket Gopher. Anthropologists say the Klamath people have lived there at least ten thousand years, making them one of the oldest settled tribes in the New World. But in the nineteenth century, federal Indian agents took away the Klamath people's descriptive names and gave them "American" names to make them easier to keep track of. One historian recorded the renaming process, in which a government clerk, who didnotspeak Klamath, made up new names for Klamaths and wrote them down on documents the Klamaths could not even read. "'This is your name,' he would say through an interpreter, writing it on a card, 'and if you forget what it is, ask anyone who can read, and he will tell you."'

Al Smith's "true" name, like so much about his culture and his language, is lost. In fact, he sometimes imagines arriving in the spirit world after he dies. The spirit people ask his name, and when he gives it, the answer comes back: We never heard of any. "They don't even know my Indian name in the spirit world," he once said.

Al Smith's Indian roots run deeper than his appearance, however. He is a kind of twentieth-century Indian Everyman; his lined face bears the scars of every betrayal and false turning of post-"frontier" Indian history. He was born into a largely intact culture but—like thousands of other young Indian boys and girls—was torn away from his home and sent to boarding school to learn to be "American." Religious schools and government teachers made sure he did not learn his own language, the history of his people, or the rituals that Klamaths had used to mark the seasons for more than ten thousand years. Stripped of these things, he graduated from boarding school to alcoholism, petty crime, prison, and disease. Finally, the federal government "terminated" his people and sold off the rich timberlands of the Klamath reservation.

White Americans have long regarded Indians as the "Vanishing Americans"—and when America's aboriginal people show a distressing reluctance to disappear, whites have often been eager to hasten the "inevitable" process. But Al Smith, like Native America generally, has refused to vanish. Drinking didn't kill him; neither did tuberculosis nor the army nor the federal penitentiary. And the wonder is that, like many other Indian people, he not only refused to disappear but began to recover, and then even to thrive, until, as he grew older, he began to live a "normal" middle-class family life. Most of his early years were marked by struggle—often violent and blind—against the forces that were trying to write him and those like him out of American history. And in the end Al Smith won; he wrote himself in. When Americans in the 1990s talk about religious freedom, they are, whether they know it or not, talking about Al Smith.

He was born on November 6, 1919, in Modoc Point, Oregon—a tree-shaded landing where the Williamson River flows down out of the mountains and into Upper Klamath Lake. For someone with a metaphorical cast of mind, Modoc Point might mark the dividing point between the heavens and the marshy earth of the Klamath cosmos. Twenty miles northwest, up the Cascade Range, is Crater Lake—the eeriest landmark in Oregon's stark geography. The lake is what remains of a volcano called Mount Mazama. More than six thousand years ago, the top blew off the mountain. Klamath legend—which geologists regard as a startlingly accurate record of the eruption—tells how the tribe sought shelter in caves from the lethal rain of fire and ash. Today, what remains is a dazzling clear lake, the deepest in North America, six thousand feet above sea level, with ice-blue water that reflects the colors of the sky. As late as a hundred years ago, Klamaths did not like to go near Crater Lake; it held bad memories.

But just below Modoc Point is the vast expanse of Upper Klamath Lake, which has been the center of Klamath life for thousands of years. Twenty miles long, as wide as eight miles at some points, it is the largest body of water in Oregon. At its deepest, though, it is barely four feet deep, and for much of its expanse it is more like a marsh than a lake—broken by the green of glistening reeds and the mud brown of sandbars. Upper Klamath Lake makes the area the largest refuge for migratory birds in the continental United States; each spring, thousands of eagles, ducks, geese, and other birds gather on or near it, along with ghostly white pelicans, often six feet from wingtip to wingtip, that nest there, a hundred miles from the sea. Like the birds, the Klamath people lived off the lake. It was the source of the wocus, which is what they call the butter-yellow seeds of the floating pond lily. Millions of seeds appeared each spring, and the Klamaths harvested them in dugout canoes. Dried and boiled, the wocus was their staple food—so important in their culture that the Klamath language has five different words for wocus, depending on how ripe the seeds are when the harvesters come by.

The lake and the rivers that feed it were home to the suckerfish, who came upstream like salmon each spring to spawn and to feed the Klamath people, who caught them in dip nets and dried them in the sun. The Klamath people had a rich traditional diet: wocus, camas root, and suckerfish; antelope and mule deer; pine nuts, sweet resin, blackberries, cherries, wild plums, gooseberries, and huckleberries that grew wild in the summer in their lush home country. They ate them fresh in summer and dried them in the sun or made them into jam to eat during the long, wet winter nights.

Twelve miles south of Modoc Point is the city of Klamath Falls, which is the center of the other culture Al Smith grew up with—the white Americans who had come down the Applegate Trail beginning in the 1840s to fish, mine, and log the rich hills and streams of the Klamath Basin. Twenty miles from the California line, Klamath Falls was and is a tough frontier town, with more than its share of saloons and dance halls, built by people with a taste for home-brewed law enforcement. Even today, Main Street in Klamath Falls looks a bit like the set for High Noon, and much of the city's social life revolves around institutions like the Leatherneck Club and the Bum Steer Saloon.

The white people of Klamath Falls did not have much interest in the Klamath, Modoc, and Yahooskin Indians who lived in the hills around them—or much love, either. Oregon in general is not a state that has opened its heart to nonwhite people. Its first territorial constitution barred black people, "Chinamen," and Hawaiian natives from its borders—an official proscription the state repealed only in 1922. But even other Oregonians regard the white people of Klamath Falls as a bit harsh in their racial attitudes. As late as 1957 an investigator for the American Friends Service Committee reported to his headquarters in Portland that he was stunned by the readiness of respectable white people in the town to express their contempt for Indians—and to express it in earthy terms that weren't polite even forty years ago. "One gets the feeling of very intense feelings just below the surface here," he wrote.

As late as 1974 Indian-white relations boiled over into what many people called an "Indian war." Native people marched through town to protest mistreatment of Indian customers by local bartenders. A few months later Klamaths were charged with two separate murders, both of customers at downtown bars. The Oregonian reported that gun sales were on the increase and that some diners were afraid to go downtown at night. The mayor of Klamath Falls was nonchalant about the situation: "Indians as a whole—with a few exceptions—are a pretty irresponsible group," he told a reporter.

The whites of the Klamath Basin resented the easy life they saw the Indians living. Because of a treaty signed at the time of the Civil War, the Klamath people held title to hundreds of thousands of acres of prime old-growth forest; they logged a part of it each year and allotted the proceeds to tribal members. As more and more of the valley was fenced off for ranches and farms, the Klamaths found it hard to pursue their traditional nomadic occupations; each generation came to depend more heavily on the timber allotments as their means of support.

But to white people, this way of living was wrong; indeed, it was pretty close to immoral. Even when Al Smith was young,there were mutterings about what people today would call "welfare" or the "culture of dependency." It was time for the Indians to stop sitting around and living on timber checks, people said; it was time for the Indians to make something of themselves, to become Americans. If that meant selling off the reservation for commercial logging, so much the better.

Al Smith knew little of this as a child. Even today when he speaks of his childhood, a wistful note creeps into his voice; he sounds like an Indian Adam remembering Eden. He lived with his mother, Delia, and his grandparents in a small wood-frame house beside the Williamson River. He played by the riverbank and hunted birds and squirrels with his slingshot. He had a dog named Pal and a fishing rod, and he spent the long, bright summer days on the river in his grandmother's dugout, "fishing," though today he can't remember catching much of anything. The family would pile into his grandfather's old Ford and travel down to the lake to gather the wocus; Al's job was to spread the seeds in the sun and keep birds from eating them while they dried. They would go over the mountains to catch suckerfish or pick huckleberries and apples or wild plums for jam. Every now and then they would hire out—the whole family, little Al, too—to help a white farmer in the Willamette Valley to the north pick his hops.

But otherwise, Al Smith spent his first seven years in a Klamath world. He had little awareness of the white culture, or of the forces that were closing in on the Klamath way of life. There were some troubling signs; his grandparents would talk to each other in Klamath, but they wouldn't teach him the language. It would hold him back, they said. When the men got together to play the traditional gambling games or to hold a traditional sweat in a wooden lodge at the riverbank, they were secretive about it; white people didn't approve of these "primitive" ways.

None of this prepared Al Smith for what happened to him at the age of seven. He was sent away from home to live at St. Mary's Academy, the Catholic parochial school in the middle of Klamath Falls. The Indian agents at the Klamath Agency had told Klamath parents to send the children to boarding school to prepare them for futures as real Americans—futures that didn't involve sweat lodges, wocus-gathering, or traditional religion. Writing a few years after Al Smith entered St. Mary's, a Catholic historian explained the mission of Oregon's Catholic boarding schools: to "take the child away from the barbaric surroundings of the teepee and...mold him in the ways of civilization."

Eden was over. Years later Al Smith remembered Catholic school as a kind of prison. There were high walls and locked doors, and white women in strange black robes gliding silently around. But it was at St. Mary's that Al Smith's true character began to emerge. To put it simply, he was a stubborn boy. He did not back down, and he did not give up. He began to resist the new life the nuns had planned for him.

His first act of resistance was passive but profound: when the nuns asked him whether he had been baptized, he lied. By telling his teachers that he was already baptized, he avoided the formal entry into white religion. But there was still compulsory chapel and catechism class and the switch for Indian boys who did not learn their lessons to the nuns' satisfaction. Very soon Al Smith began to runaway, trying to get home to the happiness he remembered beside the Williamson River.

Most of the time he didn't get far; the sheriff's men would spot the small Indian boy on the street and lead him back to St. Mary's. As he grew older, he was transferred to a school in Beaverton, nearly two hundred miles to the north, but that didn't stop him. He lit out for the highway over and over, and the state police would bring him back. After one attempt when he was twelve, an angry priest beat Al and a friend with a leather strap. The other boy went back to his room, so bruised and humiliated that he would not even look Al in the eye. But Al Smith took his whipping and just lit out again, and this time he caught a freight train south through the Willamette Valley, then over the Cascades and down to Klamath Falls. Yard bulls would catch him and throw him off the train, and he'd hide and wait for another southbound freight, until he finally made it home. After that, he enrolled at the Stewart Indian School, a boarding school in Nevada run by the Bureau of Indian Affairs (BIA).

The Indian boarding schools of the 1930s were better than Catholic school—but not much. Their purpose was still to assimilate their students, to teach them "American" ways; but at least Al Smith was now among Native students, even though they were mostly Paiutes from Nevada, who tended to look down on the Klamaths. Al determined to show them that he was someone to be taken seriously. He and a few other students from Oregon sneaked off one night to a neighboring farm. The farmer kept gallons of homemade wine in his barn, and Al and his friends hoisted a few jugs over their shoulders, carried them back to Stewart, and hosted a campfire and drinking party for the student body. He got in trouble, of course; but he also got respect from the southwestern Indian students. And there was something about the taste of that homemade wine that stuck with him. It was as haunting, in a different way, as the memories of fishing the Williamson River.

Al Smith did well at Indian school—first at Stewart and then at Chemawa, another BIA school in Oregon. He played basketball and ran track, and in his senior year he was captain of the football team, an undersized but scrappy tight end. He got good grades in math. But he was also sneaking beer and cheap wine whenever he could, getting drunk, getting into fights. The dark side of white life was growing more and more important to him.

When he left Chemawa in 1938, he was drawn irresistibly to the big-city skid row of Portland, near the docks where the river barges tied up. He and his friends lived by panhandling, cadging drinks, and rolling drunks. He would first hear the word alcoholic five years later, after he was drafted, when an army doctor diagnosed him as one. By then he was on his way to federal prison for drinking on duty; when he got out in 1946, he hit the street again.

It got harder, though, as the years went on. In 1950 Al's mother, Delia, fell to her death over a banister and through a skylight in a Portland hotel. His sister had died eight years before. He married, for the first of three times; still, like most alcoholics, he was always alone. He got sick, too; in the early 1950s he ended up in a tuberculosis sanitarium near Salem, Oregon,where doctors collapsed one lung and removed two ribs. Nothing stopped the progression of the disease until they tried a new "miracle drug" called streptomycin. Slowly Al began to regain his health and strength—enough to walk one step, then two, then enough to visit the bathroom alone, and finally enough to go outside and sit in the sunshine. But though he got well, he wasn't a model patient:

I was sitting out in the sun. I just got there it seems like, I was there maybe five minutes, ten minutes. But they says, "You got to get back inside," and I says, "Screw you people, I'm sitting outside." The doctor came along later on and told me that if I couldn't abide by the rules there that I could leave. I said, "Oh, okay, thanks," so I just got up, asked for my clothes, phoned my wife to come down and get me. And that was it.

He stayed sober for a year or two, but after that it was back to the street. Things were getting worse, though: the streptomycin had affected his inner ear, so when he drank he staggered and sometimes fell. Meanwhile, the federal government sent him a notice that he wasn't an Indian anymore.

The 1950s were the "termination era" in federal Indian policy. Congress, like the good people of Klamath Falls, had decided that it was time to get Indian people off the reservations and into the "mainstream." Their approach was simple. Tribes who were considered "ready" for assimilation were "terminated": the federal government closed their tribal rolls, sold off their tribal lands, and sent each tribal member a check for his or her share of the proceeds. The Klamaths were one of the first tribes selected for termination. Advocates of termination argued that the Klamaths were ready—educated, acculturated, Christianized. Opponents claimed that the zeal for termination was less a cultural judgment than an appraisal of the acres of virgin timber that would be opened for private exploitation when the tribe's land was sold. Some tribal members wanted their lump-sum checks, and some white timber barons wanted the chance to clear-cut the Klamath old growth.

After a bitter battle that split the tribe and the town, the advocates of "Americanism" prevailed; 70 percent of the tribe agreed to accept a $40,000 per capita payment for their timberland. Al Smith was one of them. Termination might have been the end of him; white society had taken his history, his language, his tribe, and his religion. Any further down, and Al Smith, like his mother and sister, would be dead.

But Al Smith had begun to turn himself around. One day in early 1957, he woke up in an alley in Sacramento, bruised and broke and hung over, and decided that he wasn't ready to die yet. If America wanted him out of its history, he wouldn't go along. He would live. He had been around enough to know that AA offered the only hope of survival for a man who had been drinking on the street for nearly twenty years. He had heard the Twelve Steps read out at meetings, and now he decided to try them. On January 15, 1957, he went back to AA. Four decades later he still celebrates the date as a solemn anniversary.

"I had to learn to live all over again," he recalled. "How to behave different. How to treat people. How to treat myself. Learn about different values I knew about but was not really practicing until I was sober. It was a whole new ball game called life. I finally decided to play by the rules, and the rules were that you had to work the Twelve Steps of Alcoholics Anonymous."

But that was a problem, because the Twelve Steps weren't just about not drinking, they were about filling the emptiness inside him; Al Smith didn't know how to do that, or even whether he wanted to—particularly since Step Two required him to turn to some kind of god, some"higher power." Inside himself he couldn't find one; just an angry, stubborn void, a memory of fighting off the nuns and the Christian God. He knew nothing of his people's religion. His only memory was of his grandmother; every night before going to bed, she would walk through the house by the Williamson chanting a prayer in Klamath. Al didn't know what she had been saying; he didn't know who she was saying it to. But he had no time to find out; he needed help now. And so he decided to turn to that power, that Indian Creator, or perhaps merely to the sound of the words and the memory of a time when the sun had sparkled on the river and his life and his people had seemed whole. For the first time in his life, Al Smith began to pray. "That will be my God," he said to himself. "A God that I didn't even understand."