February 10, 2002

Feds plan to change name of Native American Church and other regulations


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 purposing 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 purposed 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, 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. 

Author: Wilhelm Murg

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