Court backs church's use of peyote

There is presently a misleading and prejudicial effort among some lawmakers seeking to restrict religious peyote use (HB306). Certain legislators, embarrassingly (for Utah), referred to "peyote puffers" and sarcastically to smoking "the peace pipe" to gain enlightenment. This is either woefully ignorant or evidence of narrow religious parochialism or just plain disrespectful or all of the above. Peyote is ingested orally like other Christian sacraments.

The Utah Supreme Court ruled unanimously last July that the Native American Church had substantial rights under state and federal laws. In paragraphs 30 and 31 of their ruling, they held "that the federal religious peyote exemption found at (state code) 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.

"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." The Utah Supreme Court simply brought the official interpretation of state law into conformity with existing federal law. But now, state officials are fraudulently claiming that Utah is out of conformity with federal law.

The reason that it is false -- that HB306 conforms to federal law -- is because there is no such federal law. The stunning truth is that the DEA did try to change their rules in 2002, but the new rules were never adopted due to the outcry from the Native American Church. A good many of the 300,000 Native American Church members do not belong to federally recognized tribes nor do they have any Native American blood flowing through their veins. A large percentage of the 300,000 NAC members in the United States and Canada do not belong to U.S. federally recognized tribes.

This attempted law change occurred after the Mooneys were arrested in October 2000, lasted for about a month in 2002, claimed before the high court in 2004 and is still being dishonestly pushed now in 2005. It shows a lack of respect (not to mention integrity) on the part of state officials to argue that a law was adopted before the Utah Supreme Court in 2004, when there was merely an attempted implementation, only to be withdrawn a month later. So when deputy attorney general Chris Leonard represents that the proposed bill conforms to federal law -- we say "show us this law." So should thoughtful state legislators, who should also require proof of its actual adoption.

These same state officials eagerly point to the U.S. Attorney's Office warning James Flaming Eagle Mooney not to proceed in practicing his religion or face possible federal prosecution. Though asked to provide a legal basis for this bald claim by the Oklevueha NAC's legal counsel, they have never done so. In a personal communication by phone, our attorney Kathryn Collard was flippantly told "we are doing this because we can."

If the federal officials could have provided a legal basis for their warning, they would have. The religious rights of Utahns are still being illegally denied but now by federal law enforcement officials. This is the same kind of manipulative behavior that the Oklevueha NAC faced from Utah County Attorney Kay Bryson's office. It would be prudent for responsible members of the Utah Legislature to obtain an actual legal finding from the U.S. Attorney's Office before considering giving any credence to unfounded legal claims from that quarter. House Bill 306 is merely a cover-up to justify the Utah County attorney's illegal conduct in his attempted prosecution of a legitimate Native American Church. He is straining to provide a rationale to deny religious freedom based on race and political affiliation, where there can be none.

David Hamblin is a spiritual leader of Oklevueha EarthWalks for the Native American Church of Utah.

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