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.
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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.