US: The law on Peyote

[Alfa]

A TRIP DOWN PEYOTE WAY

This Southern Arizona Church Flouts Federal Law By Offering Peyote To
All--For A Price

Dust devils are swirling on the distant horizon as photographer Hugh
Dougherty and I bump down a dirt road near Klondike in an open-air
Jeep. We're potentially lost, looking for the Peyote Way Church of
God, in a desolate landscape where you're more likely to meet a cow
than a person. When we've gone farther than we should have according
to our directions, we wave down a passing pickup truck, the first
vehicle we'd seen in about half an hour.

The driver is the sort of person you would expect to find behind the
wheel, a quintessentially tawny rancher topped in a white straw hat.
He squints like Clint Eastwood as he sizes us up.

"Just up the road a bit. Make a left at the red mail box with "Mana"
painted on the side," he says. Then, shifting conversational gears, he
eases into a request: "Say, would you fellas mind doing me a favor?
Would you drop off this dog when you get up there? His name's Red, and
he lives up that way. He's a good ol' hound."

Red pokes his head over the back of the pickup. He's crusty-looking,
with burrs in his coat and a huge, fossilized turd improbably adhered
to his belly.

A couple of miles later, Dougherty, Red and I find the turnoff. At a
dry wash crossing before the main gate, we let Red out and he hobbles
off, favoring his right hind leg.

The entrance to the Peyote Way Church property is a simple wire affair
more suitable for keeping out cattle than humans. On one side of the
fence is an elaborate tile mosaic featuring images of peyote plants,
the church's name, visitor information and a government-issued
Internal Revenue Service tax ide ntification number--in case a
visiting auditor should question its legitimacy.

Just beyond the gate, in a field of undulating grass, a Mercedes-Benz
gleams in the sunlight.

At the heart of the compound are a couple of tumble-down buildings and
a few cars that appear to be permanently parked. Architecturally, it's
a mix of hippie commune and survivalist-compound paranoia, with a
splash of Green Acres chic.

But what is most striking is that there is no real "church" to speak
of. If a church by definition is a place of worship, then the actual
"church" would be a toss up between the simple gardening shack in
which hundreds of peyote plants reside and the 160 acres of
spectacular, rolling grassland that surrounds it all near Willcox.

Shaking off the road dust, we're greeted by a bevy of sage-looking
dogs. In their wake is Peyote Way Church Apostle Reverend Anne Zapf.
Zapf is a lean woman in her early 50s who wears her graying hair
pulled tightly back. She greets us with a warm, yet suspiciously
tolerant smile.

"Come on," she says, cutting to the chase after a brief introduction,
"I'll show you the peyote."

Inside a shed known as the Peyote House, every bit of available space
on the floor--and even a wall--is covered with earth-filled boxes.
Within these boxes, a miniature city of plump, sea-green and spineless
peyote cactus-buttons thrives.

As one of the Americas' slowest-growing desert plants, a peyote cactus
can take upward of 13 years to reach maturity. Collectively, there are
probably more than 1,000 years of plant growth under this single roof.

"That one there," Zapf says, pointing to a gnarled-looking plant
towering above the others, maybe 6 inches tall and 5 inches wide, with
the sad remains of a recent flower bloom drooping over the side. "That
one could be well over 100 years old."

When harvested properly, the above-ground portion of the plant
(commonly called a "button") is removed, allowing the deep root to
produce a new button in roughly five years.

As far as archeologists can tell, peyote, which grows naturally in
north-central Mexico and a small part of southwestern Texas, was
harvested and consumed by native people in these regions for thousands
of years in ceremonies that strengthened communities and promoted a
spiritual connection to the land.

Because the cactus' chemistry is a mixed bag of sense-altering
alkaloids, a peyote trip is said to include visions, hallucinations,
the "hearing" of colors, the "seeing" of sounds, and an overall
perception of inner peace and connection to the Earth. Most people
also vomit shortly before everything kicks in.

Although a skeptic by nature and nurture, when viewing these plants, I
am surprised to feel a sudden dizzying rush of adrenaline.

Maybe it's the mystic energy of the plants I had heard so much about,
or perhaps it's simply the knowledge that the room is full of a
federally controlled narcotic that could put someone away for life
under the right circumstances. Either way, it's a powerful feeling.

Under federal law, peyote is listed as a Schedule 1 narcotic, which
puts it right up there with heroin. Depending on the amount and
circumstances, to possess or possess with the intent to sell peyote
can carry a maximum fine of $4 million and a jail sentence that can
range anywhere from 20 years to life.

However, if you are a member of a federally recognized Native American
tribe, you are exempt--as long as everything is kept among tribal members.

By far, the vast majority of the known peyotists in the United States,
roughly a quarter-million, are members of the Native American Church,
an organization that incorporates peyote use with indigenous and
Christian beliefs.

Zapf, who is neither a Native American nor affiliated with a federally
recognized tribe, is essentially growing and distributing peyote
illegally, at least as far as the Drug Enforcement Agency is concerned.

"Frankly speaking, we have not come across any peyote seizures for
several years (in Southern Arizona)," says DEA Public Information
Officer Ramona Sanchez. "It is a controlled substance and is of course
on our radar, but we have not seen an alarming use of it. We have a
trusting relationship with the Native American Church (that peyote
will not be abused). As far as the DEA is concerned, there is a list
of all the tribes which can use peyote, and you must be of American
Indian heritage with federally recognized criteria to possess and use
peyote."

Sanchez says the Peyote Way Church, which advertises a stated mission
of sharing peyote with people of all races in its literature and on
its Web site ( peyoteway.org ), could be shut down by the DEA.

However, the issue of who can legally use and grow peyote in Arizona
is clouded by state law, which conflicts with federal law.

Under Arizona Revised Statute Title 13-3402: "A person who knowingly
possesses, sells, transfers or offers to sell or transfer peyote is
guilty of a class 6 felony. In a prosecution for violation of this
section, it is a defense that the peyote is being used or is intended
for use: In connection with the bona fide practice of a religious
belief, and; As an integral part of a religious exercise, and; In a
manner not dangerous to public health, safety or morals."

In other words, if it can be proven that the peyote is grown and used
for religious or spiritual purposes (a notarized public document could
constitute proof), then you are pretty much on safe ground, as far as
the state is concerned.

"(In Arizona), it is a class 6 felony, which is the lowest level of
felony," says Pima County Deputy Attorney Tom Rankin. "Lower than
marijuana. Lower than the narcotic and dangerous drugs. And we do have
a specific clause in our statute that if a defendant can establish all
those things (in the statute) ... it is a defense to the
prosecution.

"I would estimate that we see maybe one or two cases a year involving
peyote. But mostly they are prosecuted by the federal authorities. The
last one I remember was about a year ago, where an individual had a
whole suitcase full of drugs: marijuana, cocaine and some other drugs.
This person also had a baggie of about 14 peyote buttons. I do not
think he was a tribal member or a member of a church. He just had a
whole potpourri of drugs that he was selling. It happens infrequently
that our office prosecutes those cases."

Taking advantage of Arizona law, the Peyote Way Church may be the only
all-race peyote organization operating so openly in the United States.

Becoming a member of the Peyote Way Church, which has an almost
entirely non-Native American membership, is relatively simple. The
only requirements are that you be older than 18 and agree to pay a $50
membership fee, which is renewed annually for $40.

As a member, you receive a copy of the church bylaws (what to expect),
a copy of the so-called Doomsday Revelation (why the world is going to
hell in a bucket), a copy of the Revelation Concerning Entheogenic
Sacraments (plants are your friends), a Declaration of Religious
Conviction Certificate (eating peyote keeps you in touch with all that
is holy) and a membership card (useful for identifying yourself to
fellow church members and inquisitive police). You also get to spend
three to seven consecutive days at the "church" each year.

According to Zapf, the church currently has 240 associate members and
12 clergy members.

In a building adjacent to the Peyote House is the Mana pottery studio,
where church members create ceramic art decorated with peyote-inspired
images. Zapf says her family relies on the profits derived from
pottery sales. Mana pottery has purportedly wound up in the
collections of Whoopi Goldberg, Bill Walton and the Smithsonian
Institution Museum of the American Indian. Last year, Zapf estimates
that pottery sales brought in roughly $36,000.

Seated at a table piled high with porcelain in a sea of chalky dust
and old newspaper clips is the Peyote Way Church president, Rabbi
Matthew Kent. Kent, who is also in his 50s and neither Native American
nor a member of a recognized tribe, has the energy of a someone half
his age as he eagerly talks about peyote and expansion of the church.

"The seminary program of the church is the part that has been most
affected by the federal government," Kent explains. "If the federal
law did not exist, we could grow this church. And we could have the
clergy that is required to take the weight off of Annie (Zapf)."

As for the actual "religion," the Peyote Way Church Articles of Faith
are mostly a hodge-podge of ideas that include the Church of Jesus
Christ of Latter-day Saints' Word of Wisdom for clean living, the
spiritual and healing beliefs attributed to peyote by indigenous
people and a fundamental insistence that peyote is for everyone,
regardless of their ethnic background or tribal affiliation.

In the end, Kent says, the church leaves religious beliefs up to the
members. If you want to visit the church, take peyote and spend your
time reading comic books, that's fine by him. But be warned--those who
think of it as another opportunity to get high may be in for a surprise.

"If you think you are going ingest peyote and get high, fine," Kent
says. "But you're soon going to find out it's not like that. Peyote is
not recreational. Its re-creation-al. You reformat your experiences in
the world. You know with every cell of your body that there is a lot
more than three dimensions out there. I can tell you from 27 years of
experience that it is not addictive. Sure, someone can argue, 'If it's
not addictive, then why do people keep coming back?' Well, it's not
addictive just like prayer is not addictive."

In Edward Anderson's definitive book on the plant, Peyote: The Divine
Cactus, published by the University of Arizona Press, he concluded that
although peyote is listed as a controlled substance, it has more to do more
with politics than the plant itself. This claim seems to be substantiated by
Arizona's lenient law.

"Some people still contend that peyote is a narcotic despite
statements to the contrary by experts with considerable knowledge of
its physiological effect. Even early studies showed that peyote is not
addicting," Anderson wrote. "The problem for lawmakers and scientists
is one of deciding how best to classify and control the narcotics and
other drugs used by humans."

A study by pharmacologist Maurice Seevers conducted in 1958 rated the
addictive qualities of drugs in America. In that study, he placed
alcohol at the top of the list with an addiction index factor of 21.
By contrast, peyote ranked at the bottom of the list, with a rating of
1. (It would have been ranked "0," but some users described
"developing a slight tolerance" after repeated use.)

"When people take peyote, even to party, they have a spiritual
experience," says Zapf. "They'll say, 'Oh yeah, I was just partying
and then I had this spiritual experience.' That's the way peyote is.
It's a very powerful experience. You can't play with it."

Perhaps you wake up one morning and decide that today is the day you
will become a peyotist. What next? It's not like you can head down to
the Circle K for a quart of Budweiser and a bag of peyote.

If you are a member of a federally recognized Native American tribe,
you are entitled to purchase your peyote from one of roughly a dozen
federally licensed peyoteros who harvest the plants in Texas. A single
button of peyote usually retails for less than a dollar.

If you are not Native American, one option is to grow your own. Peyote
seeds are widely available on the Internet from a variety of places,
mostly in Europe, that offer handy peyote starter kits and growing
tips.

Since peyote takes more than a decade to come into its own, other
options could include seeking out your neighborhood drug dealer or
joining the Peyote Way Church and taking a three-day Spirit Walk for a
so-called donation of $200.

While indigenous ceremonies in Mexico and the United States place an
emphasis on communal gatherings often accompanied by ritual acts
during the consumption of peyote, the Peyote Way Church prefers to
dose up congregants and set them loose alone in a wilderness where
temperatures can top 100 degrees, and venomous critters live side by
side with thorn-studded plants.

Both Zapf and Kent say the church's choice of isolation is based on
the tradition of the vision quest, in which a person will spend time
alone in the wilderness seeking enlightenment.

To date, they claim there's never been an accident, aside from the
occasional guest who realized--after drug kicked in--that they did not
want to be on the drug. When that happens, Zapf and Kent say they are
both available to comfort the person until they sober up.

Typically, the first day of the Spirit Walk is spent fasting--time
well spent, considering the nausea and vomiting that usually occur.
The second day is spent ingesting peyote brewed in tea or eaten whole
as provided by the church. The third day is spent coming down and
stopping by the gift shop for souvenirs before leaving.

Considering all of the talk about peyote being a doorway to
enlightenment, paying $200 for the opportunity to touch the face of
God can appear a bit unseemly. But despite appearances, both Kent and
Zapf bristle at the notion that they have put a price on the sacred.

"How can you possibly put a price on peyote?" Kent asks, noting that
someone who could not afford to pay was coincidentally preparing for a
Spirit Walk as we spoke. "For $200, you will get space, place and
counsel on church land. But just because you paid $200, it does not
guarantee you the right to take peyote."

The Peyote Way Church Web site, however, makes no mention of anyone
being rejected, stating: "Penitence, forgiveness of self and others,
renewed confidence, desire for self improvement and improved health
and a healthy attitude are all benefits of partaking of the Holy
Sacrament Peyote. We are asking a $200 donation for this service."

The site also goes into great detail about what gear to bring while
camping, how much water will be needed and what to expect when the
peyote kicks in. They also offer the use of rooms for shelter during
the fast if the elements get to be too much.

Kent and Zapf say they were leery of being interviewed for this
article because of the interest it would generate. Currently, Kent
estimated the church is at capacity, hosting roughly 50 spirit walks
per year.

For this story, I was keen on experiencing peyote for myself. As a
teenager growing up in New Jersey during the late '70s/ early '80s,
taking LSD and going to a Grateful Dead concert was about as natural a
combination as drinking a beer and watching the Mets. Today, those
days are more memory than reality, but I was nonetheless looking
forward to giving it a try, all in the name of journalistic inquiry.

Initially through e-mail correspondence and once over the phone, Zapf
gave me the green light to visit the church and try some peyote. We
had even agreed upon a date, when the issue of paying the "donation"
came up.

"We want to discuss your visit some more," Zapf wrote via e-mail about
a month before our scheduled visit. "Members are aware of and prepared
to donate the $200 suggested donation for the Spirit Walk, but I am
not sure of your expectations. We ask this money as this
unconventional church does not have the ax of impending damnation and
weekly services to pay for church needs. You haven't said much about
it so I want to know what you want to do about that. Also, peyote is a
very powerful sacrament and has left some communicants 'speechless'
after their Spirit Walk. Speechless and exhausted. Perhaps the
interview should be part of the tour and preparation discussions
before the Spirit Walk. We feel that after a Spirit Walk, all the
communicant should 'do' is take a shower and eat a meal. I am not
saying that you will be speechless. Jon Safran, from the Australian TV
network, though exhausted did interview a few folks, but he had a
cadre of cameramen and (a) directorial woman. Think about it and get
back to me."

Tucson Weekly Editor Jimmy Boegle said he was willing to pay the $50
necessary for me to become a member of the church and keep everything
"legal," but drew the line at paying an additional $200 for the Spirit
Walk. Boegle said that paying a fee for access to a story would
violate basic journalism ethics.

Since a "donation" is certainly not a fee, I explained the conundrum
to Zapf via e-mail and asked if the donation could be waived.

The following day, which coincidentally was April Fool's Day, Kent
abruptly cancelled the interview and Spirit Walk via e-mail, stating,
"We're not interested in being part of your story. If you have
spiritual need for peyote feel free to make an appointment as an
individual. As far as we're concerned, you are a member of the church,
not the Tucson Weekly. We will serve you, not your editor. Your
article isn't going to help the church, therefore your article has
less than positive value to us. Thanks. Rabbi Matthew S. Kent."

Aside from Kent's confusion about my status as a member of the church,
which I am not nor have ever been, the abrupt turnaround was baffling.
The only logical conclusion I could deduce was that they wanted me to
pay $200 for the Spirit Walk.

However, Kent eventually recanted his position on the interview (but
held to his prohibition on the Spirit Walk), maintaining that money
was never an issue.

According to the church financial statement posted on their Web site,
last year's take was roughly $22,000 after expenses from a combination
of memberships, Spirit Walks and donations.

"The land, although it was paid for by Mana Pottery sales and
individual donations from immediate family, belongs to the Peyote Way
Church of God, a nonprofit, 501-C3 organization," the Web site reads.

"We incorporated in (19)79. We pay our corporate taxes and they send
those checks back when we over pay to the Peyote Way Church of God,"
says Kent. "We can be ruined by our success. That is why we started
with the donation. It slowed down the demand. And it made people value
what they were receiving. In this country, value is set by dollars and
cents. If you don't set a value then people tend to think it is
worthless. The funny thing is that once we started to ask for the
Spirit Walk donation, we started getting lawyers, chiropractors,
architects, software engineers. Professionals of all ages."

During the late 19th century, Native Americans were being
systematically forced off their traditional homelands and taken to
live on reservations, where the conditions often amounted to a death
sentence.

Around this time, the Ghost Dance religion--believed to have involved
peyote consumption--spread among the tribes of the American West.
Those who subscribed to the religion danced all night around fires in
the belief that it would make them invincible to the bullets of soldiers.

After a few skirmishes went horribly awry, the Ghost Dance religion
disbanded, and many of the surviving leaders became so-called "road
chiefs," who developed a new religion. This religion eventually became
the Native American Church, a mix of native and Christian beliefs
combined with peyote consumption.

The goal of this new religion was to recapture native spiritual
practices in a nonviolent form and organize peyote use into group
ritual, often involving the drinking of peyote tea during all-night
ceremonies similar to what is practiced today by the Huichol people in
Mexico.

In Peyote: The Divine Cactus, Anderson noted: "For those who were unable to
adjust to European American culture, it became a solace because it was
Native American--it had a tie to the past. It was something uniquely Native
American, and European Americans could share the experience only by
permission."

In 1948, Immanuel Pardeahtan Trujillo joined the Native American
Church but objected to the practice of what he believed was racial
exclusivity. Trujillo, the son of a French-American mother and a San
Carlos Apache father, was raised by an adoptive family in New Jersey.
Although Trujillo himself is 50 percent Native American, his children
are only 25 percent.

According to Kent, Trujillo believed the peyote experience was too
powerful to be restricted to any single group of people and he went on
to become a founding member of a so-called "all-race group" within the
Native American Church during the 1960s.

The Native American Church revoked the all-race group's charter a year
later, and Trujillo decided to start his own church in 1966. Trujillo
purchased the 160-acre Peaceful Valley Ranch in 1970, behind Mount
Graham, which the Apaches consider sacred. In 1977, the Peyote Way
Church was founded at the ranch by Trujillo, Zapf and Kent, for the
specific purpose of "stewarding, ingesting, distributing and growing
the holy sacrament peyote" as the "essential and inseparable" part of
the members' religious beliefs.

With a mission that includes legalizing the religious use of peyote
for all people and a $200 drug-induced religious experience, it's
little wonder that the Native American Church is concerned about how
the actions of the Peyote Way Church can impact their
organization.

Native American Church and Indian Law Office attorney James Botsford
of Wausau, Wis., says the current conservative political climate
regarding drugs in America means his church is constantly fighting to
keep peyote legal among Native Americans.

By trying to make peyote available to everyone, Botsford says, the
Peyote Way Church makes the fight even more difficult and erodes
Native American rights.

"In an ideal world, they are right," Botsford says. "Religious pursuit
should be accepted, and people should be allowed to pursue what they
believe in. But we do not live in an ideal world. It is a legitimate
point philosophically, but by doing so (publicly making peyote
available to everyone), they put the practice (of peyotism) at
tremendous risk."

To highlight the sort of pressure the Native American Church is under,
Botsford noted the case of the Employment Division of Oregon Vs.
Smith, which involved two tribal members who were fired from their
jobs for their religious use of peyote.

The case was heard by the Supreme Court in 1990, and it was decided by
a 6-3 margin that the First Amendment does not protect the sacramental
use of peyote in religious ceremonies. Justice Anthony Scalia, writing
for the majority, observed that the court has never held that an
individual's religious beliefs can excuse him/her from compliance with
an otherwise valid law prohibiting conduct that the government is free
to regulate.

As a result of the Supreme Court decision, Congress passed the
Religious Freedom Restoration Act of 1994, which amended the American
Indian Religious Freedom Act of 1978 to create a specific federal
statutory exemption for the bona-fide religious use of peyote by
tribal members in a traditional exercise of their religion.

"It's not about race," Botsford says. "It's about being a member or
federally recognized tribe. The Native American Church believes that
peyote is a gift from the creator to the Indian people. And as such,
it is a sacrament that needs to be treated with reverence and respect.
It is the non-Indians doing stuff that causes most of the problems."

When discussing the use of peyote by native people, both Kent and Zapf
are adamant that their beliefs are the right ones.

"We're understaffed, and we're under threat of (federal) prosecution
every day. Annie's peyote garden could put her in jail for 99 years.
But we're prepared to do that. We're prepared to give up everything
for what we believe in. Now that doesn't happen much in the United
States of America anymore," Kent says, adding, "What the church does
for the white man is it reconnects him to the Earth, which is his
mother. And if we can balance out the Heavenly Father idea with the
Earthly Mother idea, then you have a balance."

Church member Carl Hassell, who travels from California roughly four
times a year to take peyote, says he suffers from a variety of
illnesses, including cancer, that impact his bladder and prostate functions.

Hassell, who is also non-Native American, says that taking peyote has
helped him to make peace with his illness and himself.

"Life is fragile," Hassell says. "Many of the people I knew did not
make it into their 30s. Peyote made me a more peaceful person. I
became more concerned about the welfare of all people. And as a
result, I think it made me a better citizen. God either is or God
isn't. We're either all God's children or we're not. I think everyone
should have a chance to try the sacrament."

With so much devotion to the partial consumption of a slow-growing
plant, one has to wonder if it isn't being loved to death. Peyote,
which is very particular about its climate conditions, is mostly
harvested in the wild.

Like much of this country, Texas, where the majority American peyote
is harvested, is undergoing land use and development pressure. While
both Kent and Zapf say an important part of the church's mission is to
grow peyote in green houses so that it can be kept from extinction,
Elizabeth Slown, the U.S. Fish and Wildlife Service (FWS) spokesperson
for the South West Division, says she does not believe the plant is in
jeopardy. However, Slown is quick to note that her organization has
never researched the status of peyote and its habitat to determine if
it might be endangered.

"We only conduct a study when something has been proposed for listing
for threatened or endangered status, and peyote does not appear to be
that way," Slown says.

For that to happen, Slown says another governmental service or a
member of the public would have to contact the FWS about their concerns.

"From what I can tell, no one has done so to date," she adds. "I can
tell you that we do have a list of candidates (for protection), and
once they are on the list, it can be a while before they are
considered because of the budget."

Slown says that although peyote is a federally controlled substance,
it would not hinder her agency's protection of the plant if
applicable, despite Zapf and Kent's claims to the contrary.

"I just don't see where it being a controlled substance would have any
bearing," she says. "Tight budgets will have more to do with it (not
being protected properly)."

Concluding the interview, Zapf and Kent lead us from the pottery
studio through the main office of their operation. In one room, there
is a gift shop with peyote inspired art, T-shirts and baseball caps
for sale. At a table near the kitchen area sits someone whom Kent says
has just taken peyote but requested not to be interviewed. And
silently moving about is Trujillo himself. The presence of Trujillo is
unmistakable. Quiet, except for an occasional viciously
viscous-sounding cough, Trujillo says very little when we meet but
produces photos from the '70s of himself, Kent and Zapf.

There is a sweet nostalgia to the moment as all three peer out from a
faded past with the optimism of youth. The religious arguments,
spiritual convictions and perceptions of persecution seem to
temporarily melt away. For the moment, Trujillo is just another man
showing off pictures of his loved ones and remembering a time long
ago.

Taking advantage of the fading light, Dougherty hustles the group
outside and tries to set up a photo. When Kent asks me if I have
enough for the story, I tell him the only thing missing is my personal
first-person account of what it is like to take peyote.

Trujillo, who had been off to the side, looks me in the eye for the
first time and speaks clearly.

"There is a reason why bathrooms have doors," he says, and smiles
broadly. I contemplate the meaning of his Zen-like riddle as
Dougherty's camera snaps away.

On the way home, there is no sign of Red, the gimpy dog we had dropped
off at the church entrance. Even without taking peyote, it's easy to
feel a connection to this land. One can imagine that the Native
Americans who lived here until they were driven off must have felt
that connection as well.

Looking around, I am struck by the irony of a church being established
hundreds of years later on that same land, with the stated goal of not
only wrestling from Native Americans their legal exclusivity to a
plant they hold sacred, but also marketing it to the world like a
McDonald's Happy Meal for the soul.

With the evening desert sky folding into night, we pull over near a
wash reinforced with the rusting hulks of wrecked cars. On the
embankment, someone has taken the time to spray paint a punch line:
car wash. We take a few photos and leave, following the incandescent
tangerine glow over Tucson home, like moths to a flame.

When agreeing to be interviewed by the Tucson Weekly for this story,
Peyote Way Church of God members Ann Zapf and Matthew Kent stipulated
that all facts and quotes attributed to them during the interview be
submitted for their review and approval prior to publication. This


request was honored; they only requested that minor changes be made.

[Alfa]

<A name="Utah High Court OKs Non-Indian Peyote Use">Utah High Court OKs Non-Indian Peyote Use</A>


By DEBBIE HUMMEL
The Associated Press


SALT LAKE CITY (AP) - The Utah Supreme Court ruled Tuesday that non-American Indian members of the Native American Church can use peyote in religious ceremonies.


In a unanimous decision, the court found in favor of a couple charged in 2000 with drug distribution for providing peyote to members and visitors at their church in Benjamin, about 50 miles southwest of Salt Lake City. Officers confiscated about 12,000 peyote buttons from the six-acre complex that serves as home to the Oklevueha Earthwalks Native American Church.


James and Linda Mooney were charged with more than 10 first-degree felony counts of operating a controlled-substance criminal enterprise and one second-degree count of racketeering. They were never tried, and Tuesday's ruling stemmed from a defense request to dismiss the case.


Federal law allows tribal Indians and members of the Native American Church to use peyote in religious ceremonies. The Mooneys' church is affiliated with the Native American Church, though they are not members of a federally recognized tribe. Attorneys for the state argued there is no exception in state law for the use of peyote by Indians and said that even if the court ruled there was such an exception, it could not be extended to cover non-Indians.


The high court ruled that state law incorporates the federal regulation but does not specify a restriction on peyote use only by members of federally recognized tribes. Use of the hallucinogenic drug is limited to bona fide religious ceremonies as part of the Native American Church, Justice Jill Parrish wrote.


The court also said that permitting the exemption for some church members and not others would violate the equal-protection clause in the United States Constitution.


James Mooney said in a statement released by his attorney that the decision ``will help to preserve the religious diversity on which our nation and this state were founded.''


Assistant Attorney General Kris Leonard said her office had not fully reviewed the opinion

[Alfa]

<CENTER>This opinion is subject to revision before final</CENTER>
<CENTER>publication in the Pacific Reporter.</CENTER>






<CENTER>IN THE SUPREME COURT OF THE STATE OF UTAH</CENTER>






<CENTER>----oo0oo----</CENTER>



State of Utah,
Plaintiff and Appellee,
v.
James W. Mooney, aka James W.B.E. Mooney, Linda T. Mooney,
and Oklevueha Earthwalks Native American Church of Utah, Inc.,
Defendants and Appellants.
No. 20010787
F I L E D
June 22, 2004
<DIV align=center>
<CENTER>
<TABLE id=Autonumber1 style="BORDER-COLLAPSE: collapse" borderColor=#111111 cellSpacing=0 cellPadding=0 width=160 border=1>
<TBODY>
<TR>
<TD width="100%">
2004 UT 49</TD></TR></TBODY></TABLE></CENTER></DIV>



<CENTER>---</CENTER>





Fourth District, Provo Dep't


The Honorable Gary D. Stott


Attorneys: Mark L. Shurtleff, Att'y Gen., Kris C. Leonard,


Asst. Att'y Gen., Salt Lake City, and David H. T.


Wayment, Provo, for plaintiff


Kathryn Collard, Salt Lake City, for defendants



<CENTER>---</CENTER>





PARRISH, Justice:


¶1 James and Linda Mooney, along with their church, the Oklevueha Earthwalks Native American Church (collectively, the "Mooneys"), have been charged by the State with multiple felony counts of "engag[ing] in a continuing criminal enterprise" and of engaging in a "pattern of unlawful activity" by possessing and distributing peyote, a controlled substance, to members and visitors in their religious services. The State also seeks forfeiture of the church's property in connection with this alleged criminal activity. The Mooneys moved to dismiss the charges, arguing that a federal regulatory exemption incorporated into Utah law permits them to use and distribute peyote in "bona fide religious ceremonies" because they are members of the Native American Church. The Mooneys also argued that if state law is not interpreted to permit their possession and use of peyote for religious purposes, their prosecution violates their constitutional right to freely exercise their religion, as well as their constitutional rights to due process and equal protection of the law.


¶2 The trial court rejected the Mooneys' arguments, holding that the Mooneys are not entitled to the protection of any exemption for the religious use of peyote because they are not members of a federally recognized Native American tribe. We reverse the trial court's decision, holding that Utah law incorporates a federal regulation exempting from prosecution members of the Native American Church who use peyote in bona fide religious ceremonies. On its face, the federal regulation does not restrict the exemption to members of federally recognized tribes. We therefore rule that the exemption is available to all members of the Native American Church. Any other interpretation is not only inconsistent with the plain language of the exemption, but would fail to provide members of the Native American Church with constitutionally adequate notice that their religious use of peyote could expose them to criminal liability.



<CENTER>BACKGROUND</CENTER>






<CENTER>Regulation of Peyote</CENTER>





¶3 A cactus indigenous to the Rio Grande valley of southern Texas and northern Mexico, peyote contains mescaline, which can induce hallucinations and other psychedelic effects in those who consume it. There is a long tradition among some Native American groups of worshiping peyote and of consuming the cactus and experiencing its effects in religious ceremonies. See Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1212 (5th Cir. 1991); United States v. Boyll, 774 F. Supp. 1333, 1335 (D.N.M. 1991); Native Am. Church v. United States, 468 F. Supp. 1247, 1248 (S.D.N.Y. 1979); see also Christopher Parker, Note and Comment, A Constitutional Examination of the Federal Exemptions for Native American Religious Peyote Use, 16 BYU J. Pub. L. 89, 89-94 (2001).


¶4 Congress first restricted the possession and sale of peyote in the Drug Abuse Control Amendments of 1965, and classified it as a ScheduleI controlled substance in 1970. 21 U.S.C. §812(c) Schedule I(c)(12) (2004); Boyll, 774 F. Supp. at 1338; Native Am. Church, 468 F. Supp. at 1249. In 1965 and again in 1970, there were efforts in Congress to enact an explicit statutory exception for the use of peyote in bona fide religious ceremonies. Id. These efforts did not succeed, but they led the Bureau of Narcotics and Dangerous Drugs, the predecessor to the agency now known as the Drug Enforcement Agency (the "DEA"), to promulgate a regulatory exemption for the religious use of peyote. Id. That exemption provides as follows:
<BLOCKQUOTE>


The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to a Native American Church is required to register annually and to comply with all other requirements of law.</BLOCKQUOTE>


21 C.F.R. §1307.31 (2004). Throughout this opinion, we will refer to this regulatory exemption as the Religious Peyote Exemption, or simply as the federal exemption.


¶5 The religious use of peyote in Native American religious ceremonies became a frequent topic of debate after the United States Supreme Court decided the case of Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). In Smith, the Court held that the state of Oregon did not violate the Free Exercise Clause of the First Amendment to the United States Constitution when it refused unemployment benefits to certain practitioners of Native American peyote religion who had been fired for illegally using peyote. Id. at 890. The Court announced that a neutral law of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Id. at 878-80.


¶6 The Smith decision generated a great deal of controversy and motivated Congress to legislate in response. See generally MichaelW. McConnell, Religious Freedom, Separation of Powers, and the Reversal of Roles, 2001 BYU L. Rev. 611, 613-14. One of these responses was the adoption of the American Indian Religious Freedom Act Amendments (the "AIRFA Amendments") in 1994. These amendments were based on the following congressional findings:


The Congress finds and declares that--
<BLOCKQUOTE>


(1) for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life, and significant in perpetuating Indian tribes and cultures;


(2) since 1965, this ceremonial use of peyote by Indians has been protected by Federal regulation;


(3) while at least 28 States have enacted laws which are similar to, or are in conformance with, the Federal regulation which protects the ceremonial use of peyote by Indian religious practitioners, 22 States have not done so, and this lack of uniformity has created hardship for Indian people who participate in such religious ceremonies;


(4) the Supreme Court of the United States, in the case of Employment Division v. Smith, 494 U.S. 872 (1990), held that the First Amendment does not protect Indian practitioners who use peyote in Indian religious ceremonies, and also raised uncertainty whether this religious practice would be protected under the compelling State interest standard; and


(5) the lack of adequate and clear legal protection for the religious use of peyote by Indians may serve to stigmatize and marginalize Indian tribes and cultures, and increase the risk that they will be exposed to discriminatory treatment.</BLOCKQUOTE>


42 U.S.C. § 1996a(a) (2004). On the basis of these findings, Congress directed that
<BLOCKQUOTE>


[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. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.</BLOCKQUOTE>


Id. §1996a(b)(1). For the purposes of these provisions, Congress defined the term "Indian" to include members of "any tribe, band, nation, pueblo, or other organized group or community of Indians ... which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians." Id. §1996a(c)(2).



<CENTER>The Mooneys and the Native American Church</CENTER>





¶7 The Native American Church was formally established in Oklahoma in 1918. Peyote Way, 922 F.2d at 1212. The formation of this entity was motivated, at least in part, to protect the religious use of peyote from early attempts to suppress it. Boyll, 774 F. Supp. at 1336. The Native American Church has now grown to include many local branches or chapters, including, according to the Mooneys, the defendant Oklevueha Earthwalks Native American Church.


¶8 James Mooney claims to be a descendant of Native Americans, but is not a member of any federally recognized tribe. The Mooneys practiced Native American religion before founding their church, and provided religious programs and services to inmates of Utah correctional facilities, both as volunteers and, in Mr. Mooney's case, as an employee. James and Linda Mooney founded their Oklevueha Earthwalks Native American Church in April of 1997 in Benjamin, Utah. Because Texas is the only state in the nation in which peyote is grown, the Mooneys obtained peyote for use in their church services by registering and complying with the requirements of the Texas Department of Public Safety Narcotics Services.



<CENTER>ANALYSIS</CENTER>






<CENTER>I. INCORPORATION OF THE RELIGIOUS PEYOTE</CENTER>






<CENTER>EXEMPTION INTO THE UTAH CONTROLLED SUBSTANCES ACT</CENTER>





¶9 The first issue we address is whether the federal Religious Peyote Exemption has been incorporated into Utah law. The Utah Controlled Substances Act (the "Act") provides:
<BLOCKQUOTE>


"Controlled Substance" means a drug or substance included in Schedules I, II, III, IV or V of [Utah Code] Section 58-37-4, and also includes a drug or substance included in Schedules I, II, III, IV, or V of the federal Controlled Substances Act, Title II, P.L. 91-513, or any controlled substances analog.</BLOCKQUOTE>


Utah Code Ann. §58-37-2(1)(e)(i) (2002). While peyote is among the controlled substances listed in Schedule I of section 58-37-4 of the Utah Code, the preamble to Schedule I provides an exception for substances that are "specifically excepted" or "listed in another schedule." Id. §58-37-4(2)(a)(iii) (2002). We must decide whether this qualifying language incorporates the federal Religious Peyote Exemption of 21 C.F.R. §1307.31 into state law. This is a question of statutory interpretation that we review for correctness without deference to the conclusions of the trial court. See Ward v. Richfield City, 798 P.2d 757, 759 (Utah 1990).SUP face=Courier New color=#8000801/SUP


¶10 We hold that the federal exemption for the religious use of peyote in bona fide ceremonies of the Native American Church constitutes a "specific exception" to the listing of peyote as a controlled substance within the meaning of Utah Code section 58-37-4(2)(a)(iii). To interpret the statute otherwise would create a direct conflict with a preemptive federal law, and would raise substantial constitutional impediments to the State's prosecution of the Mooneys.


¶11 Our primary source of guidance in statutory interpretation is the plain and ordinary meaning of the statutory language. Dick Simon Trucking, Inc. v. State Tax Comm'n, 2004 UT 11, ¶17, 84 P.3d 1197. Unfortunately, the language of the Utah Controlled Substances Act fails to specify the source of the applicable exceptions. Although the Act explicitly provides that scheduled substances are controlled unless "specifically excepted," Utah Code Ann. §58-37-4(2)(a)(iii) (2002), it does not address whether the contemplated exceptions are found in state statutes, state regulations, federal statutes, federal regulations, or some combination of these sources.SUP face=Courier New color=#8000802/SUP Similarly, although the Act states that scheduled substances are controlled "unless listed in another schedule," id. §58-37-4(2)(a)(iii), it neither specifies the other contemplated schedules nor addresses the resolution of conflicts arising when a particular substance is listed as controlled on one schedule but listed as exempt under another schedule. In short, the statute does not address the situation presented here, where the substance in question is listed as a controlled substance under one of the state schedules but is listed as exempt under the federal schedules that have been incorporated by reference into the Utah Controlled Substances Act. See id. §58-37-3. These omissions and inconsistencies render the statutory language ambiguous and require that we turn to other accepted principles of statutory construction.



<CENTER>A. Preemption by the American Indian</CENTER>






<CENTER>Religious Freedom Act Amendments</CENTER>





¶12 In construing statutes, we are obligated to "avoid interpretations that conflict with relevant constitutional mandates." State v. Mohi, 901 P.2d 991, 1009 (Utah 1995). This canon of interpretation has sometimes been couched as a recognition that "[w]e have a duty to construe statutes to avoid constitutional conflicts." Provo City Corp. v. State, 795 P.2d 1120, 1125 (Utah 1990); see also State v. Lindquist, 674 P.2d 1234, 1237 (Utah 1983) ("[I]t is the duty of this Court to construe a statute to avoid constitutional infirmities whenever possible. We must adopt that construction which will save the statute from constitutional infirmity." (quotation and citations omitted)).


¶13 The Supremacy Clause of the United States Constitution authorizes Congress to preempt state law in areas covered by federal legislation, rendering invalid any state statute that conflicts with a federal act of preemption. U.S. Const. art. VI, cl. 2; Ray v. Atl. Richfield Co., 435 U.S. 151, 158 (1978). We therefore avoid interpreting an ambiguous state statute in a way that would render the statute invalid under an explicitly preemptive federal law. See Martin v. City of Rochester, 642 N.W.2d 1, 18 (Minn. 2002) (interpreting a state statute to avoid conflicting with a preemptive federal law).


¶14 The AIRFA Amendments' prohibition on criminalizing the religious use of peyote constitutes a clear congressional act of preemption against the laws of any state that might otherwise prohibit the use of peyote for religious purposes by Native Americans, as the AIRFA Amendments define them. The AIRFA Amendments provide that "[n]otwithstanding any other ... 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 ... shall not be prohibited by ... any State." 42 U.S.C. §1996a(b)(1) (2004). Were we to hold that the Utah Controlled Substances Act does not incorporate the federal Religious Peyote Exemption, the Act would prohibit peyote use in all circumstances, thereby running afoul of the AIRFA Amendments. We therefore are persuaded to interpret the Utah Controlled Substances Act to have incorporated the exemption for the religious use of peyote found at 21 C.F.R. §1307.31.


¶15 The State urges us to hold that the Utah Controlled Substances Act does not incorporate the federal exemption and suggests that we resolve the resulting preemption problem by holding that the AIRFA Amendments preempt Utah law only to the extent that Utah law criminalizes peyote use by members of federally recognized Native American tribes. This interpretation would leave Utah law available for prosecution of those religious peyote users, such as the Mooneys, who are not members of a federally recognized tribe. While the interpretation advocated by the State would facilitate the result it desires, such an interpretation nevertheless would require that we find the Utah Controlled Substances Act in conflict with federal law. We decline to do so in the face of an equally plausible interpretation that avoids any such conflict.



<CENTER>B. Constitutional Guarantees of Due Process</CENTER>





¶16 The statutory interpretation urged by the State is also untenable because it raises a serious question as to whether the Mooneys' constitutional due process rights would be violated by a conviction. In this regard, we are again constrained by the principle of statutory construction counseling us to avoid interpretations that are inconsistent with constitutional guarantees.SUP face=Courier New color=#8000803/SUP Mohi, 902 P.2d at 1009; Provo City Corp., 795 P.2d at 1125; Lindquist, 674 P.2d at 1237.


¶17 Both the United States and Utah Constitutions protect citizens from deprivation of liberty or property absent due process of law. U.S. Const. amends. V & XIV, §1; Utah Const. art. I, §7. The Utah Controlled Substances Act imposes substantial criminal penalties on those found guilty of violating its provisions. Our constitutional guarantees of due process require that penal statutes define criminal offenses "with sufficient definiteness that ordinary people can understand what conduct is prohibited." Kolender v. Lawson, 461 U.S. 352, 357 (1983); State v. MacGuire, 2004 UT 4, ¶¶13-14, 84 P.3d 1171; see also In re Discipline of Sonnenreich, 2004 UT 3, ¶37, 86 P.3d 712 ("Utah's constitutional guarantee of due process is substantially the same as the due process guarantees contained in the ... United States Constitution." (quotations and citations omitted)). These guarantees do not permit enforcement of a statute that forbids an act "in terms so vague that [persons] of common intelligence must necessarily guess at [the statute's] meaning and differ as to its application." United States v. Lanier, 520 U.S. 259, 266 (1997) (quotations and citations omitted); see also MacGuire, 2004 UT 4 at ¶14.


¶18 Because the Utah Controlled Substances Act does not clearly specify whether it incorporates the Religious Peyote Exemption, a holding that the exemption does not apply would give rise to serious constitutional claims under the due process clauses of the federal and state constitutions. The ambiguity in the statute is such that the scope of its peyote prohibition cannot be decisively interpreted by lawyers, to say nothing of citizens untrained in the law. This weighs strongly against any interpretation that would enable the State to initiate criminal prosecution based on arguably legitimate conduct.


¶19 In summary, we interpret the Utah Controlled Substances Act to have incorporated the Religious Peyote Exemption found at 21 C.F.R. §1307.31. This interpretation avoids a conflict with the preemptive AIRFA Amendments. It also avoids the constitutional due process claims that would be created by allowing the State to prosecute the Mooneys under a statute that may reasonably be read to have permitted their religious activities.



<CENTER>II. INTERPRETING THE PEYOTE EXEMPTION IN UTAH LAW</CENTER>





¶20 Having held that the federal exemption for religious peyote use is incorporated into Utah law, we must decide whether the terms of the exemption protect the Mooneys from prosecution. This task requires that we look first at the plain meaning of the regulatory language, and give effect to that meaning unless the language is ambiguous. Thomas v. Color Country Mgmt., 2004 UT 12 ¶9, 84 P.3d 1201.



<CENTER>A. The Plain Meaning of the Religious Peyote Exemption</CENTER>





¶21 The State argues that the Religious Peyote Exemption is available only to members of federally recognized Native American tribes. The Mooneys contend that the exemption is not so limited. The exemption states that it applies to "members of the Native American Church," provided such members are using peyote in bona fide religious ceremonies. James Mooney asserts that his church is one of many chapters or churches that make up the Native American Church, that the peyote was used in bona fide religious ceremonies and that, in acquiring peyote from Texas, his church has registered and otherwise followed the applicable regulations of the Texas Department of Public Safety and the United States DEA. These assertions remain unchallenged on appeal.


¶22 Because the text of the exemption is devoid of any reference to tribal status, we find no support for an interpretation limiting the exemption to tribal members. See Boyll, 774 F. Supp. at 1338 (holding that under the plain language of the federal Religious Peyote Exemption, the exemption applies to all members of the Native American Church, regardless of any tribal affiliation). The term "members" in the exemption clearly refers to members of the "Native American Church"--not to members of federally recognized tribes. Therefore, so long as their church is part of "[t]he Native American Church," the Mooneys may not be prosecuted for using peyote in bona fide religious ceremonies.



<CENTER>B. Deference to the Federal Agency's Interpretation</CENTER>





¶23 In arguing that we should limit the applicability of the Religious Peyote Exemption to members of federally recognized tribes, the State maintains that we should defer to the interpretation of the DEA, the successor to the federal agency that promulgated the exemption. The State argues that the DEA applies the federal exemption only to members of federally recognized tribes.


¶24 We will defer to an agency's interpretation of its own regulation only if it is a reasonable interpretation of the regulatory language. Indeed, the United States Supreme Court has required that federal courts defer to the regulatory interpretation of a federal agency only if the language of the regulation "is not free from doubt" and if the interpretation is "reasonable" and "sensibly conforms to the wording and purpose" of the regulation. Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 150-51 (1991) (citations and quotations omitted). No deference is otherwise required.


¶25 Whether a federal court must defer to the regulatory interpretation of a federal agency presents a different question from whether a state court is required to defer to a federal agency's interpretation of a federal regulation incorporated into state law. In the latter case, although we are free to consider the interpretation of a federal agency, we have no obligation to defer to that interpretation. In this case, in view of the plain language of the federal exemption and the due process concerns raised by the prosecution of Native American Church members whose activities fall within its plain language, we will not defer to any agency interpretation that would limit the federal exemption to members of federally recognized tribes.



<CENTER>C. Federal Policy Toward Native Americans</CENTER>





¶26 Finally, the State argues that an interpretation extending the federal exemption to members of the Native American Church who are not members of federally recognized tribes would violate the United States Constitution's Equal Protection Clause, because the exemption would be a religion-based preference permitting members of a particular church, and not others, to use peyote in religious ceremonies. The State maintains that an exemption for members of federally recognized tribes can survive constitutional scrutiny because it is a political preference designed to preserve tribal culture, rather than a constitutionally suspect racial preference.SUP face=Courier New color=#8000804/SUP


¶27 The State relies on Peyote Way, 922 F.2d at 1212, where the Fifth Circuit Court of Appeals held that the federal Equal Protection Clause permits the Religious Peyote Exemption's preference for Native American Church members because of the federal government's unique political relationship with Native American tribes, and that the Equal Protection Clause does not require that the exemption be extended to religious peyote users who are neither Native American Church members nor members of federally recognized tribes. See also U.S. Const. art. VIII, §8, cl. 3 (giving Congress the power to regulate commerce with the "Indian Tribes"); Morton v. Mancari, 417 U.S. 535, 551 (1974) (recognizing the "unique legal status" of Native American tribes with respect to the federal government). The State therefore urges a regulatory interpretation that would limit the peyote exemption to members of federally recognized tribes, because a preference for such tribe members receives deference under the Supreme Court's equal protection jurisprudence.


¶28 These arguments do not persuade us to interpret the Religious Peyote Exemption in a way that contravenes the plain meaning of its terms. It is particularly important, as a safeguard for our citizens' due process rights, for us to remain faithful to the plain language of a statute when it would impose criminal penalties on those who violate it. While the constitutional arguments advanced by the State may be relevant to our statutory analysis, they are speculative and remote when compared with the tangible due process claims that the Mooneys would have were they to be prosecuted in violation of the plain language of the exemption.SUP face=Courier New color=#8000805/SUP


¶29 We also recognize that this case involves a prosecution under state, rather than federal, law. It is by no means clear that the federal government's duties to Native Americans, see Mancari, 417 U.S. at 551, would legitimize state efforts to limit religious preferences to members of federally recognized Native American tribes. It is similarly unclear whether an interpretation that extended the religious peyote exemption to only some members of the Native American Church would survive scrutiny under article I, section 4 of the Utah Constitution, which provides that "the State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." Accordingly, despite the State's argument that some hypothetical equal protection claims might be leveled against the plain language interpretation we adopt today, we are constrained to interpret the incorporated regulation according to its plain meaning.



<CENTER>CONCLUSION</CENTER>





¶30 We reverse the decision of the district court. We hold that the federal Religious Peyote Exemption found at 21 C.F.R. §1307.31 has been incorporated into the Utah Controlled Substances Act. Although the statutory language governing incorporation is ambiguous, we interpret the Act in a manner that avoids a conflict with federal law and does not risk depriving the Mooneys of their constitutional rights to due process.


¶31 In interpreting the reach of the federal exemption as incorporated into Utah law, we rely on its plain language, electing not to defer to a contrary interpretation that the State argues has been adopted by the federal DEA. On its face, the exemption applies to members of the Native American Church, without regard to tribal membership. The bona fide religious use of peyote cannot serve as the basis for prosecuting members of the Native American Church under state law. We remand for reconsideration of the Mooneys' motion to dismiss in light of this opinion.



<CENTER>---</CENTER>





¶32 Chief Justice Durham, Associate Chief Justice Wilkins, Justice Durrant, and Justice Nehring concur in Justice Parrish's opinion.


<A name=N_1_>1. </A>The trial court did not expressly rule on this issue because it held that even if the Religious Peyote Exemption were incorporated into Utah law, the Mooneys would not qualify for it. This holding was based on an interpretation of the regulation that limited its applicability to members of federally recognized tribes. Like issues of statutory interpretation, we review the trial court's interpretation of a regulation for correctness, giving no deference to the trial court's conclusions. See Brendle v. City of Draper, 937 P.2d 1044, 1046 (Utah Ct. App. 1997).


<A name=N_2_>2. </A>All of these are possible sources of exemptions in light of the fact that the definition of "Controlled Substance" under the Utah Controlled Substances Act includes substances scheduled under the federal Controlled Substances Act. Utah Code Ann. §58-37-2(1)(e) (2002).


<A name=N_3_>3. </A>All of the constitutional analysis in this opinion is in the context of our attempt to interpret the statute and its incorporated regulation. Because we interpret the statute and incorporated regulation in a manner that avoids the constitutional issues raised by the Mooneys, we need not and do not consider the merits of the Mooneys' constitutional claims.


<A name=N_4_>4. </A>See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (holding that equal protection jurisprudence requires the application of "strict scrutiny" to all racial classifications).


<A name=N_5_>5. </A>Any equal protection claims arising from our plain language interpretation of the regulatory exemption would not belong to the State, but rather to religious peyote users who are not members of the Native American Church. Cf. Peyote Way, 922 F.2d at 1212-21 (considering the equal protection claim of religious peyote users who were neither Native American tribe members nor Native American Church members). Because none of the parties to this proceeding fall within this category, the State's reliance on this equal protection argument is speculative at best.

[Alfa]

PEYOTE RULING A VICTORY FOR THE FIRST AMENDMENT

The Utah Supreme Court's decision on peyote use in Native American
rituals was not only a victory for James Warren "Flaming Eagle" Mooney
and his wife, Linda. It was a reaffirmation of the First Amendment's
separation of church and state.

The Mooneys, who lead the Oklevueha Earthwalks Native American Church,
were charged in 2000 with illegally distributing peyote to
non-Indians. Utah County Sheriff's deputies seized 17,500 peyote
buttons from the church, along with computers and church records.

Federal and state law had allowed peyote, a hallucinogenic drug, to be
used only in Indian religious rites. But Utah County attorney Kay
Bryson claimed Mooney and his wife violated the law when they allowed
non-Indians to participate in ceremonies involving peyote.

Mooney and his attorney, Kathryn Collard, argued that they had the
religious right to extend church membership and participation in
peyote ceremonies to anyone regardless of race.

The state's high court made the correct analysis. If the court had
ruled against Mooney, it would have put government in the position of
dictating doctrine to churches. The First Amendment clearly prohibits
the government from interfering with faith. That means the government
cannot meddle in matters of church doctrine or membership. As long as
a church is not violating the law or putting innocent people in
danger, the government has no business meddling in dogma.

In this case, Bryson was seeking to interfere with a church's policy
on membership. Under the First Amendment, it is up to a church and its
leaders to decide to whom to extend the hand of fellowship and permit
to partake of its sacraments.

Nobody would want the courts or the government to determine who can
receive Holy Communion in the Catholic church or participate in LDS
temple ceremonies. Nor should the government dictate to the Native
American Church who can be a member, or who can partake of peyote in
religious ceremonies.

It's unlikely that Mooney's church, or any Native American church,
will see a massive influx of non-Indian congregants lured by promise
of peyote. Religious leaders do not generally allow people to
participate in sacred ceremonies for trivial reasons. Indians see
peyote as sacred medicine that provides spiritual enlightenment and
direction, not as a recreational drug to be taken casually. Moreover,
the peyote participant reportedly experiences grave illness before his
enlightenment -- something likely to keep many would-be recreationists
away.

The state's highest court has reaffirmed the separation of church and
state, and we hope Bryson will follow suit and return the seized items
to the Mooneys so they may be able to resume their religious
ceremonies under the full protection of the First Amendment.

[Alfa]

NON-AMERICAN INDIANS CAN USE PEYOTE, COURT RULES

In what is being hailed as a victory for minority religious rights in
Utah, the Utah Supreme Court on Tuesday ruled that a Utah County
couple were not guilty of felony drug charges when they distributed
peyote in church ceremonies near Spanish Fork in 2000.

James Warren "Flaming Eagle" Mooney and his wife, Linda, founded the
Utah chapter of the Oklevueha Earthwalks Native American Church in
1997 in Benjamin, near Spanish Fork. In October 2000, Utah County
Sheriff's deputies raided the church, saying Mooney was illegally
distributing peyote to non-American Indians. Deputies seized nearly
17,500 peyote buttons in addition to the church's computers and
records. Mooney and his wife were arrested the next month and posted
bond; the Utah chapter of the church has since declared bankruptcy.

In 2001, the Mooneys were charged with 10 first-degree felony counts
of operating a controlled substance criminal enterprise, and one count
of racketeering, a second-degree felony. The couple faced life in
prison for the charges.

But on Tuesday the Supreme Court reversed that decision.

Kathryn Collard, Mooney's attorney, said the case will be remanded to
4th District Court to reconsider a previous motion to dismiss the
charges. The dismissal should take less than a month.

"Once it is dismissed, these people should be able to go back to
practicing their religion, including the use of peyote and obtaining
peyote," she said. "This is not a license for people to go out and use
peyote. It is for people to use in religious ceremonies in the Native
American Church."

Utah County Attorney Kay Bryson said he had not read the court's
decision.

"I had a busy day and I haven't read the decision," he said. "I'll
study the decision when I get a chance to read it."

In an interview with the Daily Herald on Tuesday, Mooney said he first
heard the news of his victory Tuesday morning when his wife called him
at Spanish Fork Middle School, where he was serving as an election
judge.

"I feel fortunate, honored that the Great Spirit chose me to make this
stand for my heritage and my people," he said, noting he had written
documents to prove his ordination as a medicine man in the Native
American Church. "My wife called me on the phone and said 'Sweetheart,
you have won on all counts.' "

Mooney said he was not surprised by the court's decision.

"I've been a police officer and I've worked in the prison system, and
I know the law and I abide by the laws of the land," he said.

Collard, who has acted without pay while adjudicating the case, said
the decision protects individual religious rights.

"We are just so pleased with the court's decision," she said. "It is
good when a court stands up for an individual's right to practice
religion, even when that religion differs from the dominant culture.
That protection is the only thing that stands between the tyranny of
government and individuals and their sacred peyote."

The rights of Mooney's followers were violated when police "ripped
their peyote and their feathers and other sacred things out of their
church and put (the followers) under surveillance and asked them all
kinds of questions about their religious beliefs and who else they
knew who was using peyote," Collard said. "It's been a terrible ordeal
and it's decimated the church because people were afraid they would be
prosecuted. This ruling gives them back their right to practice their
religion again. You would think this kind of thing wouldn't happen in
America, but it did."

Mooney said his family has been most affected by the
charges.

"I cannot explain the horrendous things my children and wife have gone
through," he said. "You think of the trauma of a 10-year-old girl on
her birthday when a S.W.A.T. team raids her home and starts pushing
her around. People, even teachers, condemned my other child in class,
saying she was the daughter of a drug dealer."

Classified as a controlled substance, peyote is illegal to possess in
the United States, with an exception for members of the Native
American Church, who consider it sacred. Tuesday's decision sets a
precedent in Utah and perhaps in 22 other states that do not have laws
protecting the administration of peyote to non-American Indians as
part of religious ceremonies.

Used for hundreds, and perhaps thousands, of years by American
Indians, peyote is often taken in Native American Church ceremonies as
medicine to help the severely addicted and depressed. Long ignored by
traditional medicine, the silver-dollar-sized cactus is now the
subject of a five-year Harvard Medical School study, and other doctors
and scientists are examining its properties as well.

[Alfa]

CHURCH'S PEYOTE USE OK'D

High Court Ruling May Clear Founder of Charges

Members of a Utah County American Indian church, whatever their race,
can continue to use peyote as part of their religious ceremonies
without fear of state prosecution, the Utah Supreme Court ruled Tuesday.

The unanimous decision applies to all 200 members of the Oklevueha
Earth Walks Native American Church and may result in the complete
dismissal of criminal charges against the church's founder, James
"Flaming Eagle" Mooney.

"The bona fide religious use of peyote cannot serve as the basis for
prosecuting members of the Native American Church under state law,"
Justice Jill Parrish wrote in Tuesday's opinion.

Mooney's attorney, Kathryn Collard, praised the ruling as a victory
for religious freedom that affects all Utahns, not just members of
Mooney's congregation.

"For the rest of us, what it confirms is that individuals can still
rely on the courts and their state and federal constitutional rights
to protect them from this incredible power of the state. And that is a
wonderful thing," Collard said. "I think it should make all of us who
take these rights for granted think about how in every age people have
to struggle to preserve these fundamental rights."

Mooney was unavailable for comment Tuesday, but Collard said he is
grateful for the Supreme Court's decision.

"He just expressed to me what a great thing it is that the court
protected the religious diversity that is the foundation of our
country and our state," Collard said. "He just could not be happier.
It's been a very long struggle for them."

Mooney and his wife, Linda, were arrested in November 2000 and charged
with 10 first-degree felony counts of operating a controlled substance
criminal enterprise and one count of second-degree felony racketeering
for allegedly distributing peyote to non-Indians.

Collard said she will revive a motion to dismiss all charges against
the Mooneys, which 4th District Court Judge Gary Stott rejected in
October 2001 when he ruled that the exception does not apply to any
race other than American Indians.

Though Tuesday's opinion overturns Stott's ruling, Assistant Attorney
General Kris Leonard said it may still be possible for the case to go
forward.

"There are still issues that haven't been decided below that may yet
allow prosecution of the case," she said.

The court's ruling holds true only for members of a valid Native
American Church, Leonard said, and there has been no investigation
into the validity of Mooney's church.

For the purposes of its decision, the Supreme Court assumed Mooney's
representations, she said.

At issue in the case was an exemption in the Federal Controlled
Substance Act that allows the use of peyote in religious ceremonies.
The exception was enacted by the Bureau of Narcotics and Dangerous
Drugs, now known as the Drug Enforcement Administration, after peyote
was classified as a controlled substance in 1970.

The state Attorney General's Office argued on appeal that the
exemption has never been incorporated into state laws controlling drug
use. Additionally, the state argued, the exemption does not apply to
non-Indian members of the Native American Church.

The Supreme Court rejected each argument Tuesday, saying the state
statute must be interpreted to include the exemption to avoid a
conflict between state and federal law and to protect the Mooneys'
constitutional rights. Additionally, the court noted, the exemption
makes no mention of tribal status as a requirement for immunity from
prosecution.

"The term 'members' in the exemption clearly refers to members of the
'Native American Church' _ not to members of federally recognized
tribes," the opinion states. "Therefore, so long as their church is
part of the 'Native American Church,' the Mooneys may not be
prosecuted for using peyote in bona fide religious
ceremonies."

Mooney founded the Oklevueha Earth Walks Native American Church in
1997 in Benjamin, a rural community west of Spanish Fork. The Native
American Church, which was established in 1918 in Oklahoma, operates
throughout the United States and Canada. Each chapter operates


autonomously and sets its own rules.

[Alfa]

JUSTICES UPHOLD RELIGIOUS PEYOTE USE

The Utah Supreme Court on Tuesday ensured that Utah members of the Native
American Church, regardless of their race, cannot be prosecuted for using
peyote as part of their religion.

The justices unanimously ruled in favor of Oklevueha Earthwalks Native
American Church founder James "Flaming Eagle" Mooney and his wife, Linda.
The couple were charged with a dozen first-degree felony counts after
police seized 12,000 peyote buttons during an October 2000 raid.

The Mooneys and other church members legally can use the hallucinogenic
cactuses under a federal exemption passed in 1970 that is incorporated into
Utah law, the high court said. Mooney has said he is one-quarter Seminole
but is not a registered member of a federally recognized tribe.

"Because the text of the exemption is devoid of any reference to tribal
status, we find no support for an interpretation limiting the exemption to
tribal members," wrote Justice Jill N. Parrish for the court. "Therefore,
so long as their church is part of 'the Native American Church,' the
Mooneys may not be prosecuted for using peyote in bona fide religious
ceremonies."

Civil rights attorney Kathryn Collard, who represented the Mooneys and the
church in the appeal, called Tuesday's ruling a victory for religious freedom.

"In every era people have had to fight for the right to practice their
religious beliefs freely, particularly if their beliefs were not that of
the predominant culture," she said. "The great thing is that we can do
that. We have a Constitution that protects our rights to practice our
religion freely."

But Collard claims the ruling is not a license for recreational peyote use.

"It isn't like if you and I wanted to go do some peyote we could form a
church and go do some," she said. "I don't think just calling yourself a
Native American Church would do it. There is a body of teaching and
religious beliefs people recognize as being central to the Native American
Church."

Assistant Utah Attorney General Kris Leonard said it has not been decided
whether the state will appeal the ruling. The opinion, she said, assumes
the Mooneys are members of a valid branch of the Native American Church.

There are hundreds of Native American Church chapters in the United States
and Canada. James Mooney's congregation had between 200 and 300 members
before Utah County Sheriff's deputies raided the church's 6-acre property
in Benjamin. Deputy Utah County Attorney David Wayment said his office will
examine the ruling and decide if it wants to challenge the legal status of
Mooney's church or investigate whether peyote was used for bona fide
religious purposes, as the federal law that protects religious use requires.

"Several counties have done peyote prosecutions in the past," he said.
"Everybody's going to have to sit down and have a look at this to see what
it means for the future of peyote prosecution, if there is a future."

The Oklevueha, or "unstoppable river," church worships peyote as a deity
and sacrament. Mooney purchased his peyote from Texas, where the cactuses
are legally harvested and sold.

While the case has been on appeal, many members of the Oklevueha Earthwalks
have been fearful of attending services and being prosecuted, Collard said.

Another church member, Nicholas Stark, was charged with second- and
third-degree felony counts after police seized 10 pounds of peyote buttons
and 5 pounds of coca leaves from him in July 2000. His case also has been
on hold pending the outcome of the Mooneys' appeal.

Tuesday's opinion orders a judge to reconsider the Mooneys' request to have
the charges against them dismissed.

[Alfa]

PEYOTE POSSESSION CHARGE DISMISSED; ANOTHER REMAINS

Utah County prosecutors have dismissed a drug charge against peyote
user David Hamblin, who is a member of the Oklevueha Earthwalks Native
American Church. Hamblin's second-degree felony count of possession
with intent to distribute a controlled substance was dropped following
last month's Utah Supreme Court ruling that NAC members can use peyote
during religious services, regardless of their race. But drug
distribution charges against church leader James "Flaming Eagle"
Mooney and his wife, Linda, remain intact. Prosecutor David Wayment
said Friday that he is considering several options, including an


appeal to the U.S. Supreme Court.

[Alfa]

PEYOTE AND PEYOTE LAW


When Spanish explorers first stepped onto America's soil, several tribes in northern Mexico had already used peyote for a dozen generations.


Today, peyote grows chiefly in northern Mexico and south Texas. The plant is a small, woolly cactus shaped like a button and is traditionally consumed either in tea made from dried buttons or by swallowing the buttons. Along with causing its user to become violently ill, peyote eventually results in a feeling of intense well-being and produces a number of other psychological effects, including hallucinations and richly colored visions.


In federal law, peyote is listed as a Schedule 1 controlled substance.


Schedule 1 is for substances with hallucinogenic properties that are thought to have high potential for abuse.


Robert Paiz, spokesman for the Houston division of the U.S. Drug Enforcement Agency, said distributors of peyote are required to register with the DEA. "The primary restriction is that they distribute only to Native Americans and that they distribute for religious rites," he said.


The U.S. Drug Enforcement Agency reports only a handful of registered distributors who are permitted to sell peyote, and sell only to persons who can prove at least one-quarter blood lineage to a Native American tribe.


Medicine men who live too far from the Texan plains to harvest their own peyote purchase it from such distributors, who must follow regulations from the DEA and the Texas Department of Public Safety. Peyote can be mailed using the U.S. Postal Service if both the distributor and the purchaser of the peyote meet the government's requirements.


Salvador Johnson, a peyote distributor in Mirando City, Texas, said the DEA has pressured him in recent years to be more selective in deciding to whom he should sell peyote.


He said that while membership in a Native American church used to be sufficient, his clients must now prove American Indian ancestry.


"We started asking for tribal enrollment cards and certificates of Indian Blood," Johnson said. "That is the only way we can prove a person is who he says he is."


A federal statute limits peyote use to "Indians" who use it in "bona fide religious ceremonies."


In deciding James "Flaming Eagle" Mooney's case, the Utah Supreme Court had a lot of latitude. The state's drug laws prohibit a long list of controlled substances, but allowed for unspecified "exceptions" and "exemptions." The court had at least two exemptions to choose from -- one in the federal code and another in a DEA regulation. The first exemption would have limited peyote use to members of federally recognized tribe. The second -- the DEA regulation -- allows peyote use among members of the Native American Church. But despite the wording of its regulation, the DEA has traditionally interpreted its regulation to mean that only members of federally recognized tribes are exempt.


The Utah Supreme Court chose the DEA's exemption but rejected the DEA's interpretation. The court ruled that any member of a Native American church could consume peyote as part of a "bona fide religious ceremony."


The roundabout ruling -- which rejected the DEA's interpretation of it own regulation -- raised eyebrows among experts on federal Indian law like Kevin Worthen, dean of Brigham Young University's J. Reuben Clark Law School.


"The reasoning for me was a bit surprising," Worthen said of the ruling.


"The court has done it in an interesting way and not the most straight-line fashion, but it is legitimate for them to do that."


Worthen said the Utah court's ruling carries no legal weight in federal courts. In other words, a non-American Indian member of a Native American church might be free to consume peyote in religious ceremonies under Utah law, but he could still be charged in federal courts for breaking federal laws.


The U.S. Supreme Court has ruled consistently that peyote is not protected under the First Amendment's guarantee of free exercise of religion. Even Utah's Supreme Court was careful to avoid citing the First Amendment in making its ruling.


Last month, the U.S. Supreme Court agreed to hear a case that could have bearing on federal peyote law. The case pits the federal drug law against the Religious Freedom Restoration Act of 1993, a law that requires the government to show a compelling interest when limiting a person's religious freedoms.


The case will decide whether American members of the Brazilian religious sect O Centro Espirita Beneficiente Uniao Do Vegetal should be permitted to drink a hallucinogenic tea as part of their worship. Lower courts have so far sided with the church.

[Alfa]

PEYOTE ADVOCATE CHARGED WITH ILLEGAL POSSESSION, DISTRIBUTION


Indictment: He is accused of posing as an American Indian to obtain peyote


A Utah County man, who won a state court ruling that says all members of the Native American Church regardless of their race can use peyote in religious ceremonies, has been indicted on federal charges of illegal possession and distribution of the hallucinogenic cactus.


A grand jury indictment unsealed Thursday accuses James "Flaming Eagle"


Mooney, 61, of Benjamin, founder of the Oklevueha Earthwalks Native American Church, of misrepresenting himself as an American Indian in a conspiracy to get peyote.


Also indicted were Mooney's wife, Linda, 51, and church member and self-styled medicine man Nicholas Stark, 54, of Ogden.


The indictment alleges that James Mooney fraudulently obtained a membership card for the Oklevueha Band of Yamassee Seminole Indians, a tribe that is not federally recognized and one that traditionally does not use peyote. In November 1997, a few months after the Mooneys started the Oklevueha Earthwalks church, the band terminated its affiliation with James Mooney because of his activities with the hallucinogens and asked that he stop using the Oklevueha name, according to the indictment.


However, Mooney allegedly continued to use his card to obtain peyote.


The Mooneys are charged with 13 counts each of conspiracy to possess peyote with intent to distribute, conspiracy to distribute peyote, distribution of peyote and possession of peyote with intent to distribute. James Mooney also faces an additional count of attempted possession of peyote with intent to distribute. Stark is charged with one count each of distribution of peyote, possession of peyote with intent to distribute and possession of coca leaves.


The Mooneys, who were arrested Thursday, have an initial court appearance today. A summons was issued to Stark.


The indictment was applauded by the presiding elder of the Utah Native American Church. In a written statement, Jeffrey V. Merkey, who is a member of the Cherokee Nation, thanked federal prosecutors "for protecting the rights of Native Americans and Native American communities who have been preyed upon by frauds and impostors."


Forrest Cuch, executive director of the Utah Division of Indian Affairs, said his office has received complaints from tribal members about the Oklevueha Earthwalks church.


The charges are the latest round in a long legal fight over peyote.


Federal authorities argue that only enrolled members of tribes who also are members of the Native American Church can use peyote. James Mooney, who says he is part Seminole, contends that all church members have the right to use the substance.


The dispute started in 2000, when police raided the church in Benjamin and seized 12,000 peyote buttons. The Mooneys were charged in 4th District Court with a dozen first-degree felony counts.


After prosecutors refused their request to drop the charges, the two appealed to the Utah Supreme Court. The justices ruled unanimously last year that the Mooneys and other church members legally can use the hallucinogenic cactus under a federal exemption passed in 1970 that is incorporated into Utah law.


Stark was charged in a separate case in 2nd District Court with felony drug counts for allegedly possessing 10 pounds of peyote buttons and 5 pounds of coca leaves seized by police in July 2004. The charges were later dropped after the Utah Supreme Court issued its ruling in October 2004.

[mopsie]

House Committee Approves Peyote Bill
January 18th, 2006 @ 4:00pm
Richard Piatt Reporting

Today at Utah's Capitol, a House committee has approved a bill that would clarify who can legally use peyote. Right now, Utah law is out of line with a federal law and that loophole affected a recent criminal case.

Peyote is a stimulant drug that is illegal for general use, but a federal law allows limited use in American Indian religious ceremonies. Right now, there are several tribes who use peyote in ceremonies, but in the past there have been those who have exploited a loophole in the law---using or selling the drug for recreation, not religion.

A House committee today approved a bill that limits peyote use only to American Indian tribes. It would also set criteria for who qualifies as an Indian.

Carma Nez, Native American Church of North America: "We're at a point where we're saying, 'N this is wrong. It does not reflect our way f life, our belief.' It's time to let the public know that."

Kis Leonard, Assistant Utah Attorney General: e just know the state law has been out of sync with those rights, and need to be in conformance with it to protect those rights."

The case was partially spurred on by the case of James "Flaming Eagle" Mooney, who successfully won a legal case against him. Prosecutors charged Mooney with giving peyote to non-Indians. Some say he successfully used the existing loophole in the law. This bill would close it.

[dextrorotatory]

"Peyote is a stimulant drug"

That's an interesting opinion.

[dextrolevo]

Peyote is a cactus, Mescaline is the main drug active in the cactus, which is a PhenylEthylAmine, related to Amphetamines but in no way do they have the same effects.

[motorhead]

US: Quiet Case May Have Far-Reaching Impact
by K. Hollyn Hollman,, (01 Apr 2006) Liberty Magazine United States
Missing were the shouting protestors with placards, the miniature Ten Commandments tablets, and the throng of media representatives. It was almost business as usual the day the Supreme Court heard the term's sole religious liberty case. Unlike the Ten Commandments display cases that received so much media attention last term and flamed the cultural debates on religion, the case of O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzalez made its way to the Supreme Court rather quietly. At oral argument in November last year, the case drew the attention mostly of the members of the small religious sect whose central sacrament is threatened by the enforcement of federal drug laws against them. While much of the media took a pass on this one, all who are interested in the protection of religious liberty should take note, because the importance of this case may far exceed the particular religious practice at issue.

In broad terms, the case addresses the fundamental question of what the government must do to protect the free exercise of religion.

As with many of the Court's religious freedom cases, it also demonstrates how cases dealing with religious minorities and uncommon religious practices often test our country's commitment to fundamental freedoms that others may take for granted.

It is in cases arising from religious minorities that courts affirm or deny the principles of the religion clauses that apply to all. Such cases remind us that when religious liberty is denied to anyone, everyone's religious liberty is threatened.

The case began more than six years ago with the federal government's attempt to prohibit a small church from practicing its religion.

The church ( known as "UDV" ) has about 150 members in the United States and follows the teachings of a religion native to Brazil. The church's religious practices involve a central sacrament of ingesting a tea, known by its Portuguese name, hoasca, that is ritually prepared from two Brazilian plants.

Members of the church believe that hoasca, when used in UDV's religious ceremonies, brings them closer to God. A small amount of the chemical dimethyltryptamine ( DMT ) results from the preparation of the tea. DMT is on a list of chemicals regulated by the Controlled Substances Act.

The government confiscated the church's plants and records, threatened its members with prosecution, and sought to prevent further importation and use of hoasca.

When negotiations failed to resolve the dispute, UDV sued the government under the Religious Freedom Restoration Act ( RFRA ) to stop the government from using the Controlled Substances Act against them. The church presented evidence that the consumption of hoasca has caused no significant adverse health consequences and has not been diverted to illicit use. The government claimed that hoasca posed a health danger to UDV's members and was likely to be diverted to nonreligious use, and its importation from Brazil would cause the United States to violate an international treaty.

UDV was successful in the lower court proceedings, and the government appealed to the Supreme Court.

This case marks the first time an RFRA case has reached the Supreme Court since the 1997 City of Boerne case invalidated RFRA's application to state laws. RFRA, which was supported by a broad coalition of religious and civil liberties organizations, including Seventh-day Adventists, Baptists, Catholics, Jews, and Muslims, requires that the federal government have a compelling interest, exercised by the least restrictive means, when it substantially burdens religion.

The federal statute, which remains in effect as to federal laws after City of Boerne, is an essential protection for religion in light of the Supreme Court's 1990 decision in Employment Division, Oregon Department of Human Resources v. Smith, 494 U.S. 872 ( 1990 ), which has been widely criticized for reducing protections under the free exercise clause. Without RFRA, religious practices that are burdened by neutral, generally applicable laws of the federal government would not be protected. When Congress passed RFRA, it did so recognizing that many times general laws incidentally and unintentionally harm religion.

RFRA was intended to guard against such harms.

In the UDV case the federal government makes the expansive argument that it has a compelling interest in the "uniform application" of the drug laws. In other words, the Controlled Substances Act cannot allow exceptions based upon religious beliefs; uniform enforcement meets the compelling interest test without a case-by-case review.

The significance of the case to the larger religious community lies in that broad claim.

The government's analysis would sharply limit RFRA. It is that concern, and the deep investment many religious organizations had made as part of the broad Coalition for the Free Exercise of Religion that supported the passage of RFRA, that led to broad amicus support in favor of UDV.

In fact, RFRA was specifically designed to make it hard for government to impinge on the free exercise of religion without a good specific reason. The government's position, however, would allow it to be excused from making the proper statutory showing.

As Judge Michael McConnell explained in the case at the Tenth U.S. Circuit Court of Appeals, "Congress' general conclusion that DMT is dangerous in the abstract does not establish that the government has a compelling interest in prohibiting the consumption of hoasca under the conditions presented in this case."

UDV, and many religious entities that filed briefs on its side, argued forcefully that the government cannot avoid its burden under RFRA by asserting that the drug laws can bear no exemptions. To satisfy the compelling interest test, the government must show a serious harm, based on specific evidence rather than speculation or general statements.

At the Supreme Court, a senior deputy solicitor general, Edwin S. Kneedler, argued the government's case. The questions came quickly, and at least some of the questions from the bench indicated skepticism about the government's sweeping theory.

A couple of justices noted exceptions in drug laws for the use of peyote as a sacrament in the Native American Church. Justice Antonin Scalia asserted that such an exception was a "demonstration that you can make an exception without the sky falling in." Justice Ruth Bader Ginsburg had the same concern and questioned whether permitting an exception for one religious group, but not others, would raise constitutional concerns.

Questions for UDV, represented at oral argument by Albuquerque, New Mexico, attorney Nancy Hollander, however, indicated that the context of the claim in the federal drug law arena and international treaty obligations relating to those laws make this case a challenging one for the Court. Chief Justice John Roberts, hearing his first religious freedom case since his confirmation, asked questions about whether the Court's outcome should be different if UDV expanded or if later hoasca was diverted from its religious use. Others questioned how an exemption for UDV would square with United States treaty obligations.

On February 21, the Court issued a unanimous opinion in favor of UDV. The opinion was written by Chief Justice Roberts in his first religious liberty case. The Court rejected the Government's argument that it had a compelling interest in the uniform application of the Controlled Substances Act that would not allow exceptions to accommodate UDV. That argument was fatally undermined by the longstanding exemption for religious use of peyote by Native Americans. Instead, the Court read RFRA according to its terms and enforced it in a way that bodes well for religious freedom and the continuing vitality of RFRA. Because the case was decided on a preliminary injunction, the case now goes back to district court for additional proceedings.

[Nagognog2]

Utah couple claim peyote a religious right | May 18, 2006

SALT LAKE CITY --The leader of an American Indian church and his wife claim in a lawsuit that authorities tried to prevent them from practicing their religion by prosecuting the couple for consuming and distributing peyote.

| Breaking News Alerts James "Flaming Eagle" Mooney, 62, and Linda Mooney, 52, leaders of the Oklevueha Earth Walks Native American Church of Utah, have successfully fought charges involving their use of peyote.

The most recent charges were dropped in February after the Supreme Court ruled in an unrelated case involving a hallucinogenic tea that the government cannot hinder religious practices without proof of a "compelling" need to do so.

The Mooneys' federal lawsuit filed Tuesday claims that their First Amendment rights were violated. They are seeking unspecified damages and court fees from the federal, state and local governments.

"Again, it is amazing that we have been forced to this extreme just so we can worship in our Native American Church," Mooney said Wednesday.

A spokeswoman for the U.S. attorney's office said prosecutors were reviewing the Mooneys' complaint.

[Silence_Inc]

YES! this is what i'm talking about ...

and it's good that they called upon the first amendement... this means other people will have the same rigths in the future! ... jyey!

[DXMBunny]

so if i get this straight... if i start going to that church... i can freely use peyote for ceremonies... hmmmm... prolly a bit more to it... but ya

oddly enough... is what they call them news headlines lol

[rxbandit]

arent the mooneys some kind of a creepy cult though... ive heard storys of them trapping, isolating and trying to force their beliefs on people. the native american church is cool and all but the mooneys are strange.

[Nature Boy]

I don't believe in religious favouritism or justifications in these cases. All traditions aside, laws are laws and all laws should stand for all. Of course peyote shouldn't even be illegal in the first place and should be freely available to responsible users whether Native American or simply recreation seekers. The entire case is needless and a waste of time. Just another pointless piece of the war on drugs.

[Forthesevenlakes]

Originally Posted by rxbandit

arent the mooneys some kind of a creepy cult though... ive heard storys of them trapping, isolating and trying to force their beliefs on people. the native american church is cool and all but the mooneys are strange.

Actually, these mooneys that this article is written about is a family, unless swim is mistaken, and aren't the cult people are thinking of. The Moonies are members of the Unification Movement, led by Sun Myung Moon. The Moonies are in fact accused of stealing members' money, brainwashing, and the like. To swim's knowledge though, the Mooneys belonging to the Native American Church here do not employ these practices.

[Diphenhydramine]

I think Nature Boy has a good point. Government shouldn't play favorites or more importantly, make exceptions. It's a little ridiculous that only those with an Indian heritage could use peyote, but other non-Indian members couldn't. That's almost segregation when you think about it too long. But I still think it's a step in the right direction.

Reputation Comments on this post:

Spot on.

[grandbaby]

Originally Posted by Alfa

James Mooney said in a statement released by his attorney that the decision ``will help to preserve the religious diversity on which our nation and this state were founded.''


Assistant Attorney General Kris Leonard said her office had not fully reviewed the opinion

Utah was founded on religious diversity?

??!!!!?!?!

[Bajeda]

Originally Posted by Diphenhydramine

I think Nature Boy has a good point. Government shouldn't play favorites or more importantly, make exceptions. It's a little ridiculous that only those with an Indian heritage could use peyote, but other non-Indian members couldn't. That's almost segregation when you think about it too long. But I still think it's a step in the right direction.

The US is still having a guilt trip for raping the Native Americans' lands and peoples the first several hundred years after the settlers came, which is why they have casinos, pretty much non-existant taxes, and now this.

[VincentVan]

RXbandit is making some confusion here.
The followers of the Unification Church founded by Rev. Moon are sometimes referred to as "Moonies" but this bears no relation whatsoever with Mr and Mrs. Mooney´s native american church to which the article refers to.

Apart for this detail what I found specially interesting in this report is the fact that Texas is the only state in the union where peyote is legally grown and harvested for distribution and use of the native american churches that ask for it.
Since this sentence states clearly that you don´t need to be native american to partecipate in the church´s rituals and not even to start a native american church , and that in the US anybody can start a church without any permission or registration of any kind , basically any US citizen or group of citizens can decide to be a native church and legally buy and use peyote.
I think that some of the US citizens members of this forum, specially but not only if residents of a state with a substantial indian community; should ask for qualified legal advice and, if it´s the case get into business.
You could organize religious "spiritual week ends" that, I´m sure, will get very popular in a very short time.
The sentence in question refers to federally sanctioned religious protections , so in theory it should apply in all the states of the Union.
It sounds too good to be true.
And probably it is.
Anyway I´ll try to find out more about this story . If any members , specially american ones, hear some more details and/or developements of this ruling , I would be very greateful to whomever will keep me informed.
And if anyone really decides to get into business I may well be intrested in becoming a faithful member of your church.
VV.

" The only law that pushers never break is the law of offer and demand"
(Antonio Vargas Llosa. Ex president of Colombia.)

[Alfa]

Threads merged.