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The New York Times, USA
Aug. 14, 2004
Mindy Sink
www.nytimes.com

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ReligionNewsBlog.com • Item 8345 • Posted: Monday August 16, 2004  

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What makes someone a member of a religion? Is it something gained as a birthright, at a baptism, a result of devotional church attendance or even race? A case in Utah over peyote use has unearthed such questions, and the discussion seems to be just getting started.

Peyote, a small cactus whose buttonlike tops can cause hallucinations when eaten, is considered a sacrament and a deity in American Indian religion, and the American Indian Religious Freedom Act was designed to make a legal exemption for its use in religious ceremonies by Indians who are members of tribes.

But a unanimous ruling this summer by the Utah Supreme Court allowed members of the Native American Church who are nontribal members to use peyote as well. The court ordered the case remanded to a lower court for reconsideration, but the state is considering an appeal to the United States Supreme Court.

“The First Amendment protects the rights of each person to worship according to their own beliefs,” said Kathryn Collard, a civil rights lawyer who represented James Mooney, the defendant in the case.

Mr. Mooney founded the Oklevueha Earthwalks Native American Church in 1997 with his wife, Linda Mooney, in Benjamin, Utah. Mr. Mooney claims to be at least one-quarter Seminole and a medicine man, but he is not a registered member of a federally recognized tribe. In 2000, state and county officials raided his property and charged him, his wife and another church member with 10 felonies related to peyote use and distribution.

“Even if you are a valid Native American Church member, you still cannot use peyote legally unless you are a member of a federally recognized tribe,” said Kris Leonard, an assistant Utah attorney general, referring to the federal law. Controlled-substance laws vary by state, and Utah’s law is among those that do not address a peyote exemption.

For some Indians it is not a legal matter but a traditional and spiritual one. “These non-Indians, they invite themselves and want to become members,” said Andrew Tso, president of the chapter of the Native American Church in Aneth, Utah. “I don’t think they should be.”

Mr. Tso said that his religion was part of who he was, and who his family had been for generations, and that therefore people who were not born into a clan or tribe could not be of the same creator or religion.

“We really don’t call it a church or religion,” he said. “It’s our way of life that we intertwine with this divine nature every day.”

Some tribal representatives will meet this month at the Native American Rights Fund offices in Boulder, Colo., to discuss how to prevent nontribal members from using peyote.

The Native American Church is a nonhierarchical church that was formed in Oklahoma in 1918 as a way for Indians to structure their religion in a way that more resembled that of Christian churches and therefore avoid persecution for using peyote. There is no governing body for the church to issue guidelines or dictate membership. There are estimated 1,800 chapters in the United States and Canada.

Writing for the Utah Supreme Court, Justice Jill N. Parrish, said: “We reverse the trial court’s decision, holding that Utah law incorporates a federal regulation exempting from prosecution members of the Native American Church who use peyote in bona fide religious ceremonies. On its face, the federal regulation does not restrict the exemption to members of federally recognized tribes.”

Ms. Collard, Mr. Mooney’s lawyer, said it was not the role of government to decide who could practice a particular religion. “When you stop to think about it, what other church does the state tell who its members can be?” she asked. “Or attempt to restrict its membership by race?”

She said that it was one thing for a church to dictate membership based on sex or race, but that it was a violation of the First Amendment if the state did so. “These people are charged with enough felony counts to spend the rest of their lives in prison just for practicing their religion,” Ms. Collard said.

Mr. Mooney dismissed the idea of the Indians’ religion being limited to registered tribal members. “Certain people think Christ was a white guy, some think he was black,” he said. “Race means nothing to me. If you found a seat inside one of our teepees, the great Spirit made that for you, and who am I to tell you that you don’t belong there?”

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