210. Employment Division, Department of Human Resources of Oregon v. Smith, April 17, 1990
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327 as may be mutually agreed upon by the Administrator and the Secretary of the Smithsonian Institution. The term of the lease shall not be less than 99 years. . . . (6) Designation.—The facility to be constructed under paragraph (2)(A) shall be known and designated as the “George Gustav Heye Center of the National Museum of the American Indian.” (c) Museum Support Center Facility.— The Board of Regents shall plan, design, and construct a facility for the conservation and storage of the collections of the National Museum at the Museum Support Center of the Smithsonian Institution. (d) Minimum Square Footage.—The facilities to be constructed under this section shall have, in the aggregate, a total square footage of at least 400,000 square feet. . . . sec. 11. inventory, identification, and return of indian human remains and indian funerary objects. . . . (a) Inventory and Identification.— The Secretary of the Smithsonian Institution , in consultation and cooperation with traditional Indian religious leaders and government officials of Indian tribes, shall— (1) inventory the Indian human remains and Indian funerary objects in the possession or control of the Smithsonian Institution; and (2) using the best available scientific and historical documentation, identify the origins of such remains and objects. (b) Notice in Case of Identification of Tribal Origin.—If the tribal origin of any Indian human remains or Indian funerary object is identified by a preponderance of the evidence, the Secretary shall so notify any affected Indian tribe at the earliest opportunity. (c) Return of Indian Human Remains and Associated Indian Funerary Objects. —If any Indian human remains are identified by a preponderance of the evidence as those of a particular individual or as those of an individual culturally affiliated with a particular Indian tribe, the Secretary, upon the request of the descendants of such individual or of the Indian tribe shall expeditiously return such remains (together with any associated funerary objects) to the descendants or tribe, as the case may be. (d) Return of Indian Funerary Objects Not Associated With Indian Human Remains.—If any Indian funerary object not associated with Indian human remains is identified by a preponderance of the evidence as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe, the Secretary , upon the request of the Indian tribe, shall expeditiously return such object to the tribe. . . . [U.S. Statutes at Large, 103:1336–43.] 210. Employment Division, Department of Human Resources of Oregon v. Smith April 17, 1990 Alfred Smith and a coworker were fired by a private drug rehabilitation organization for using peyote at a ceremony of the Native American Church. Their application for unemployment compensation was denied under a state law disqualifying employees discharged for work-related “misconduct.” The United States Supreme Court, reversing the Oregon Supreme Court, decided against the Indians in a 6 to 3 decision. . . . . This case requires us to decide whether the Free Exercise Clause of the First Amendment permits the State of Oregon to include religiously inspired peyote use within the reach of its general criminal prohibition on use of that drug, and thus permits the State to deny unemployment benefits to persons dismissed from their jobs because of such religiously inspired use. . . . But the “exercise of religion” often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining 328 from certain foods or certain modes of transportation . It would be true, we think (though no case of ours has involved the point), that a State would be “prohibiting the free exercise [of religion]” if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only because of the religious belief that they display. . . . Respondents in the present case, however, seek to carry the meaning of “prohibiting the free exercise [of religion]” one large step further . They contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice, and that is concededly constitutional as applied to those who use the drug for other reasons. They assert, in other words, that “prohibiting the free exercise [of religion]” includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a...


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