AGO 97043.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97043. DATE: August 25, 1997SUBJECT: Due Process Requirements REQUESTED BY: Jean A. Lovell, Chair, Nebraska Board of ParoleWRITTEN BY: Don Stenberg, Attorney General Marie C. Pawol, Assistant Attorney General You have inquired whether the Nebraska Board of Parole ("Board") is obligated to conduct an evidentiary hearing to consider a parolee's request to use peyote in the course of Native American religious services. Presumably, the parolee's current conditions of parole preclude the use of controlled substances. Particular reference is made in your inquiry to 1994 amendments to the American Indian Religious Freedom Act ("AIRFA"), which provide in pertinent part that [n]otwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. 42 U.S.C. § 1996a(b)(1). You note that the 1994 amendments to this federal legislation contain the following exemption, which the Board has construed as extending to inmates under parole supervision: This section shall not be construed as requiring prison authorities to permit, nor shall it be construed to prohibit prison authorities from permitting, access to peyote by Indians while incarcerated within Federal or State prison facilities. 42 U.S.C. § 1996a(b)(5). As a preliminary matter, we agree that Congress did not intend to extend AIRFA's protections to inmates or parolees, particularly those who, like the parolee in question, are under parole supervision for a crime relating to substance abuse. See also, State v. Thomas, 236 Neb. 553, 462 N.W.2d 618 (1990)(restrictions imposed upon a prisoner who is paroled...