A judge on Tuesday threw out a lawsuit filed by an American Indian church and its founder that sought return of peyote seized by Utah County authorities five years ago.
U.S. District Judge Dale Kimball said the Oklevueha Earthwalks Native American Church of Utah and James “Flaming Eagle” Mooney had failed to serve the defendants official notice of the suit within the required 120-day limit.
In addition, the judge noted that the plaintiffs had filed a motion to stop court proceedings in the lawsuit while a separate criminal prosecution related to their alleged peyote possession is pending, “which indicates that they have no intention to pursue the case at this time.”
Kimball dismissed the legal action without prejudice, meaning it can be refiled.
The suit, filed in April, centered on the seizure of 12,000 buttons of peyote from the church in a 2000 raid. Mooney and his wife, Linda, were charged in state court with a dozen first-degree felonies involving possession of the hallucinogenic.
The charges were dismissed after the Utah Supreme Court ruled unanimously in 2004 that members of the Native American Church, regardless of race, cannot be prosecuted for using peyote as part of their religion.
Despite that ruling, the seized peyote has remained in the custody of state authorities. Meantime, federal authorities, saying that only enrolled members of tribes who also are members of the Native American Church can use peyote, started their own investigation.
That probe led to an indictment in June on charges of illegal possession and distribution of the hallucinogenic against the Mooneys and church member Nicholas Stark of Ogden.
Mooney claims membership in a Seminole tribe that is not federally recognized.
Sep. 21, 2005