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217 lines
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Plaintext
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{ the }
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-=*/> Buzzz Bros. <\*=-
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present:
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The Supreme Bunch
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of INjustuces
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vs. Peyote
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Part II of II
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{ }
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*=-- --=*
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[8]
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-------------------------------------------------------------------------
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Exerpts from the following article analyzing the
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effects the US Supreme Court ruling on the Native
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American Church's use of peyote as being illegal:
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Native American church members stripped of their rights under the
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Constitution are now subject to the will of the legislative branch of
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our state and federal governments. Not an enviable place for Indian
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people; as a distinct racial and religious minority Indians have always
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had an uphill struggle in the halls of Congress and elsewhere to have
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their rights recognized and respected.
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The legislative branch of any government is an exceedingly unusual
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place for individuals to look to have their rights under the First
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Amendment vindicated. Courts are traditionally looked to as protectors
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of these rights, against majoritarian legislatures. Justice O'Connor,
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in a separate concurring opinion which joined the result of the majority
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but sharply criticized its method, reasoned that "the First Amendment
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was enacted precisely to protect those whose religious practices are not
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shared by the majority and may be viewed with hostility."
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As a result of "Smith," minority religions, in Justice Scalia's
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opinion, may be at a disadvantage in the political arena. But that is,
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in his estimation, "an unavoidable consequence of democratic
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government," preferable to "a system in which each conscience is a law
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unto itself." Justice Scalia had to strain to defend his decision,
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citing the need to prevent "anarchy" in our democratic society. Indian
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people simply want to be left alone in our society to worship the god of
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their choice. Is that asking too much? The Court's decision in "Smith"
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strips Indians of their pride and integrity, and makes many of them
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criminals in the eyes of the law. Only history will judge the Court's
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decision in "Smith;" but for now the remote specter of anarchy may very
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well have been the preferred choice. [end of article; more to come]
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[10]
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The following article appeared in the Spring 1990 issue of "Native American
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Rights Fund Legal Review", a publication of the Native American Rights Fund,
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1506 Broadway, Boulder, CO 80302, and is reprinted here w/permission.
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-----------------------------------------------------------------------------
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Supreme Court Deals Devastating Blow to Native American Church
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by Steve Moore
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On Tuesday, April 17, 1990, the United States Supreme Court struck a
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gut wrenching blow to the religious lives of many of this country's
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Native Americans, in a decision which invites the return to an era of
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religious persecution one would hope a presumably enlightened and
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tolerant society such as ours had left behind. In the case of "Oregon
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Department of Employment v. Alfred Smith," Justice Antonin Scalia,
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writing for a five member majority, and describing the First Amendment's
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Free Exercise Clause as little more than a "negative protection accorded
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to religious belief," held that a member of a religious faith may not
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challenge under the free exercise clause of the First Amendment to the
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United States Constitution a legislature's criminal enactment of
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otherwise general application which produces infringement on a
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particular religious practice. In the "Smith" case this amounted to a
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challenge to the constitutionality of an Oregon drug law which the Court
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interpreted as a general criminal prohibition on all uses of the drug
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peyote, considered by Indian members of the Native American Church as an
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essential sacrament, the physical embodiment of the Great Spirit.
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The Native American Church, which claims over 250,000 members
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nationwide, and additional Indian practitioners in Canada and Mexico,
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and which can be traced back archaeologically several thousand years in
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North America, was not absolutely destroyed or driven underground by the
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Court's action. The Court did not go so far as to rule that any state
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or federal law exempting the religious, sacramental use of peyote was an
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unconstitutional establishment of religion, at the other end of the
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religion clauses of the First Amendment. In the Court's terms, a peyote
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exemption, while constitutionally *permitted*, is neither
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constitutionally *required* or *prohibited*. A kind of constitutional
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limbo-land for the Native American Church and its members. [more]
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[11]
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In real terms the decision leaves the fate of the peyote religion to
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the whim of majoritarian legislatures and Congress. Eleven states
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currently have exemptions on the statute books protecting the religion;
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another twelve tie their exemption to a federal Drug Enforcement Agency
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regulation which rests on questionable foundation since the decision. A
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small handful of states, notably California and Nebraska, in which are
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located some of the largest Indian and Native American Church
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populations, have based their protection on court decisions. The
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others, and the federal government through Congress, have no statutory
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or common law protection. Indian reservation lands will provide some
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safe haven from possible prosecution, given the particular Public Law
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280 configuration in any given state, but problems of transportation of
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the sacrament into Indian country through "illegal" territory will
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reduce peyote ceremonies to complex and dangerous liaisons.
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Native American church members stripped of their rights under the
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Constitution are now subject to the will of the legislative branch of
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our state and federal governments. Not an enviable place for Indian
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people; as a distinct racial and religious minority Indians have always
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had an uphill struggle in the halls of Congress and elsewhere to have
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their rights recognized and respected.
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The legislative branch of any government is an exceedingly unusual
|
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place for individuals to look to have their rights under the First
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Amendment vindicated. Courts are traditionally looked to as protectors
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of these rights, against majoritarian legislatures. Justice O'Connor,
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in a separate concurring opinion which joined the result of the majority
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but sharply criticized its method, reasoned that "the First Amendment
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was enacted precisely to protect those whose religious practices are not
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shared by the majority and may be viewed with hostility." [more]
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[12]
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A noted scholar of Indian law and philosopher, Felix Cohen, was quoted
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several decades ago as saying: "Like the miner's canary, the Indian
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marks the shifts from fresh air to poison gas in our political
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atmosphere; and our treatment of Indians, even more than our treatment
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of other minorities, reflects the rise and fall in our democratic faith
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...." Cohen's words become even more prophetic after the Court's
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decision in "Smith." The "Smith" decision may perhaps portend even
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greater persecution for other forms of Indian religious expression.
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Examples which come to mind include: the wearing of long hair by Indian
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students in public schools, and by Indian prisoners in federal and state
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prisons; missing school on a regular basis for cultural/religious
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ceremonial purposes; the taking of game by Indians out season, when not
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otherwise protected by treaty; burning wood to heat rocks for sweat-
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lodge ceremonies, when burning is otherwise outlawed by local ordinance
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during times of high pollution; and body piercing as part of the Sun
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Dance ceremony. If these forms of religious expression are otherwise
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prohibited by general criminal laws, the First Amendment no longer
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provides a basis from which to claim protection from religious
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infringement. As with peyote use, reservation boundaries will provide a
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buffer from the application of state law, except where Public Law 280
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legitimizes intrusion.
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As a result of "Smith," minority religions, in Justice Scalia's
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opinion, may be at a disadvantage in the political arena. But that is,
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in his estimation, "an unavoidable consequence of democratic
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government," preferable to "a system in which each conscience is a law
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unto itself." Justice Scalia had to strain to defend his decision,
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citing the need to prevent "anarchy" in our democratic society. Indian
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people simply want to be left alone in our society to worship the god of
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their choice. Is that asking too much? The Court's decision in "Smith"
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strips Indians of their pride and integrity, and makes many of them
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criminals in the eyes of the law. Only history will judge the Court's
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decision in "Smith;" but for now the remote specter of anarchy may very
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well have been the preferred choice. [end of article; more to come]
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[13 of 13]
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STATEMENT FROM PACIFIC NORTHWEST CHURCH LEADERS WHO SUPPORT INDIAN RELIGIOUS
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RIGHTS Re: Employment Division, State of Oregon v. Al Smith, Galen Black,
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88-1213
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The recent U.S. Supreme Court decision regarding the sacramental use of
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peyote in Native American religious rites is unfortunate and deeply
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disappointing. We support the right of Native Americans to practice their
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religion as they have for centuries. We concur with Justice Harry Blackmun,
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who writing for the dissent, called the decision a "wholesale overturning of
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settled law concerning the religious clauses of our Constitution." The
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decision jeopardizes the fundamental right of all citizens to exercise
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freedom of religion free from government restraint. We will continue to
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work with Native Americans to help them protect their religious rights.
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The Most Rev. Raymond G. Huthausen Archbishop of Seattle Roman Catholic
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Archdiocese of Seattle
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The Right Rev. Vincent W. Warner, Bishop Episcopal Diocese of Olympia
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The Most Rev. Thomas Murphy, Coadjutor Archbishop Roman Catholic Archdiocese
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of Seattle
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The Rev. John Boonstra, Executive Minister Washington Association of
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Churches
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The Rev. Calvin D. McConnell, Bishop United Methodist Church Pacific NW
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Conference
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The Rev. W. James Halfaker, Conference Minister Washington-Idaho Conference
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United Church of Christ
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The Rev. Lowell Knutson, Bishop NW Washington Synod Evangelical Lutheran
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Church In America
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The Rev. Dr. William B. Cate, President Director Church Council of Greater
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Seattle
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The Rev. Gaylord Hasselblad, Executive Minister
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American Baptist Churches of the Northwest
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These church leaders issued an apology to Indians that was carried in the
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Winter 1988 NARF Legal Review
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----------> Buzzz Bros. <----------
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End of File
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