[Hunter Gray February 10 2002]
Note by Hunterbear:
This is an extremely dangerous Federal attempt to intermeddle in the
religious beliefs and institutions and affairs of Native Americans -- and,
like all efforts to hatchet civil liberty, it threatens everyone. Using the
flimsy, spurious excuse -- I repeat, excuse -- that a relatively few number
of non-Indians have used the mildly mescaline cactus substance peyote for
their religious purposes -- or for whatever -- Bush/Ashcroft/DEA now wants
to establish a network of control over the entire Native American Church
complex [which has a number of autonomous, related branches -- or, to use a
roughly Anglo analogy, "denominations" or "synods."]
This bizarre thrust by the Bush/Ashcroft administration -- wrapped up in
cunningly twisted disingenuous language -- is something not only out of
Orwell but is part and parcel of the whole hideous American historical
legacy of bigotry and intolerance toward all Native American religious
beliefs. It runs counter, not only to the deepest rivers of morality, but
also to the First Amendment, the Fourteenth Amendment, the policy thrust of
respect for all Native theological perspectives which began with John
Collier in 1933, the national Indian Religious Freedom Act of 1978 [and the
intent of the Act's subsequent amendments], and much, much else.
This is part and parcel of the whole Bush/Ashcroft authoritarian assault on
the deepest civil libertarian foundational dimensions of the United States
and all of the people.
Not only is the Bush/Ashcroft administration attempting to define what is a
religion -- but it's trying to dictate membership policy to private
There will be a major fight on this issue for sure.
The Native American Church movement is broadly pan-Indian [inter-tribal and
transcendent of tribalism] and uses peyote in a very carefully precious
sacramental sense. From that perspective, its use of peyote is precisely
comparable to the use of wine in Catholic or Anglican [Episcopal] communions
or in the Lutheran denominations.
Native religious beliefs cover a very wide range: from the respective and
pure tribal traditional to Christian-mixed-with-tribal traditional-elements.
[My own "Jesuit Catholicism" and that of my family is very heavily mixed
with tribal traditionalism.] The Native American Church, whose roots reach
back into the latter 19th century, developed in large part as a Native
effort to circumvent the constant Federal attacks on all Native traditional
faiths -- attacks which continued in full totalitarian force until the
Indian New Deal of FDR and John Collier. Some NAC branches admit
non-Indians and some do not.
And that, and everything else of religious nature, is solely up to the
members of the particular church involved. It sure as hell isn't the
business of Bush and Ashcroft and DEA -- or anyone or anything else,
including any government.
Several weeks ago, mid-November 2001, I posted a long piece which dealt in
substantial part with the Native American Church movement, its sacramental
use of peyote, and a major North Dakota/Federal Native American Church
religious freedom case in 1984 -- United States v. Warner -- for which I was
privileged to coordinate legal defense. National ACLU provided full support.
The case was won -- with the verdict delivered by 12 Anglo jurors [half of
whom were Catholic and the other half Lutheran -- and all of whom certainly
recognized the precise parallels between the sacramental usage of peyote and
that of communion wine.] See that discussion on our Website via
Much, much more on this as we travel along the River of No Return. I remain,
as always, an optimist -- convinced that success will be ours in the long
Feds plan to change name of Native American Church and other regulations
The Drug Enforcement Administration (DEA) is proposing a change in the
language of their regulation regarding peyote use to conform with the American Indians Religious Freedom Act of 1994 (AIRFA). Peyote, which is used by Native Americans in religious practice, is considered a "Schedule 1" drug by the agency, along with heroin, LSD, XTC, marijuana, Quaaludes, and Psilocybin.
In a letter dated December 18, 2001, The DEA's Deputy Assistant
Administrator for the Office of Diversion Control, Laura Nagel, noted that the agency is proposing to "delete all references to the 'Native American Church' and to 'members of the Native American Church' in the regulation." The letter goes on to state that the DEA "would then add language identical to the language used in AIRFA that protects the use of peyote by members of federally recognized tribes for bona fide traditional ceremonial purposes in connection with the practice of traditional Indian Religion." Nagel's letter notes that the Department of Justice's "protection is not limited to the Native American Church, but is extended to any member of a federally recognized Indian tribe who is engaged in the practice of a traditional Indian religion." The change in the language purports to clear up any confusion in the law.
In addition to the change in language, the DEA is also looking into
"promulgating a comprehensive substantive rule" that would provide
regulatory guidelines for peyote distributors and "members of Indian tribes who possess, transport, and use peyote for religious purposes as permitted by AIRFA." This comprehensive rule would "cover a broad range of matters related to peyote use.
Including, but not limited to, establishing how a peyote distributor will
verify tribal membership, establishing how a peyote distributor will verify
that a tribal member is purchasing or receiving peyote for bona fide
traditional ceremonial purposes in connection with the practice of a
traditional Indian religion, and providing general regulatory guidance that
limits peyote use to its traditional religious use in the practice of Indian
religions." The letter solicits input from Native Americans, preferably
before January 31.
Teresa Murray, secretary of the Native American Church for the State of
Oklahoma is opposed to the change in the language and the proposed new
regulations. In her written response to the letter, she states "The
Christian churches made the peyote illegal for the Native American to use in their peyote ceremonials. They had holy medicine, peyote, classified as a dangerous drug."
"It really bothers me because we have the government getting into our
religion," Murray told Native American Times. "We talked to some lawyers who
said they're trying to make our medicine men like pharmacists, with the
peyote under lock and key."
Murray's misgivings also come from the language of Nagel's letter,
especially in the references to "members of federally recognized tribes." Murray's husband is a non-Indian who is a member of the Native American Church, and she realizes that the Indian blood quantum of her family will be diluted over the generations. Murray's fear is that as more and more Indians are being disenfranchised from their tribes due to blood quantum the religion will die out if only tribal members are allowed to participate. Furthermore, as it is now possible to be a full-blood Indian, but not be a member of any tribe
(for example, an Indian who is 1/8th of eight different tribes.) Such a person
could face federal drug charges if they were to participate in peyote ceremonies.
Murray notes that not allowing non-tribal members exemption from prosecution is a violation of basic freedom of religion rights. That very concept was successfully argued over a decade ago in New Mexico.
In 1990, a Federal Grand Jury indicted Robert Lawrence Boyll, a non-Native
American member of the Native American Church for unlawfully importing
peyote through the United States mail and possessing peyote with the intent to distribute; Boyll went to Mexico to obtain peyote for himself and members if
his congregation. In September of 1991 Judge Juan Burciaga, Chief Federal
Judge of the District of New Mexico granted Boyll's motions to dismiss on the
grounds that the indictment violated the defendant's First Amendment right to freely exercise his religion and also because the listing of peyote as a controlled substance did not apply to the defendant because he is a member of the Native American Church.
The judge's decision stated that "'Church' refers to a body of believers and
their shared practices, rather than the existence of a formal structure or a
membership roll. Membership in the Native American Church derives from the
sincerity of one's beliefs and participation in its ceremonies.
Historically, the church has been hospitable to and, in fact, has
proselytized non-Indians. . It is one thing for a local branch of the Native
American Church to adopt its own restrictions on membership, but it is
entirely another for the Government to restrict membership in a religious
organization on the basis of race. Any such attempt to restrict religious liberties along racial lines would not only be a contemptuous affront to the First Amendment guarantee of freedom of religion but also to the Fourteenth Amendment right to equal justice under the law." The decision was appealed and upheld in the 10th Federal District Court in Denver.
Despite the Boyll decision, another case is currently going on in Utah.
Earlier this month, The Utah Supreme Court has agreed to decide whether non-Indians can use peyote legally during religious ceremonies. The issue arose from the prosecutions of a self-styled medicine man charged with drug distribution: James Mooney in Utah County.
Mooney is the founder the Oklevueha Native American Church in Benjamin,
Utah. He and his wife, Linda, were charged with twelve first-degree felony counts after police seized 12,000 peyote buttons during an October 2000 raid.
While Mooney says he is of American Indian ancestry, he can not document his
claim. He contends, however, that the U.S. and Utah constitutions guarantee
freedom of religion to everyone -- regardless of tribal ties - meaning
everyone has the right to participate in the ceremonial use of peyote.
Mooney's attorney, Kathryn Collard, stated "It's a terrible irony that a
state founded on religious freedom . . .would try to regulate a church's
membership." Weber County Attorney Richard Parmley countered that the federal law allowing peyote use was not written to protect religious freedom, but rather to "preserve the unique cultural history of the Native American people."
The DEA's Linden Barber, to whom all responses for the purposed change in
the agency's regulation are to be addressed, was contacted by Native American
Times for comment, but he deferred comment to the public relations department. The Public Relations Department was contacted, but they could not make a comment until they conferred with Mr. Barber.
Hunter Gray [Hunterbear]