Church seeks probe of peyote prosecutions

Utah County: Members claim officials unduly burdened the free practice of their religion

PROVO – Less than two weeks after two of its co-founders agreed to stop using and distributing peyote in exchange for the dismissal of federal charges against them, their Oklevueha Earthwalks Native American Church called for a probe into the role of the Utah County Attorney’s Office in the prosecution of the pair.

David Lee Hamblin, a spokesman for the Benjamin-based church, contended Monday that the county attorney’s office violated federal acts that bar the government from passing laws that unduly burden the free exercise of religion, first by pressing state charges against Spanish Fork residents James “Flaming Eagle” Mooney and his wife, Linda “Bright Hawk” Mooney, and then by assisting federal authorities in their case.

“Now that the charges are dropped, we’re free to pursue the truth and the truth isn’t that pretty,” Hamblin said at a news conference outside the Utah County Administration Building, where he delivered the written request for a probe. He was joined by James Mooney and a half-dozen church members.

Hamblin said the county attorney’s office continued to insist Mooney, a medicine man, was fraudulently claiming American Indian heritage even though he has proof that his genetic ancestry is 35 percent Native American.

Peter Stirba, a lawyer for the Utah County Attorney’s Office, called the allegations “patently frivolous” and pointed out that three lawsuits filed by Mooney against prosecutors already have been thrown out by state and federal judges.

The Mooneys contend that all members of the Native American church have a right to use peyote. But federal authorities say only members of federally recognized tribes are eligible to use the hallucinogen as part of their religion.

In 2000, police raided the Oklevueha Earthwalks church and seized 12,000 peyote buttons. James, 62, and Linda,
51, were charged in 4th District Court with a dozen first-degree felony counts.

After prosecutors refused to drop the charges, the two appealed to the Utah Supreme Court. The justices ruled unanimously in 2004 that the Mooneys and other church members, regardless of race, legally can use peyote under a federal exemption passed in 1970 that is incorporated into Utah law.

However, the U.S. Attorney’s Office said the Mooneys and the non-Indian members of their church still were prohibited under federal law from possessing or using peyote. The couple and Nicholas Stark, a medicine man from Ogden, were named last year in peyote-related charges.

Stark earlier pleaded guilty to possession of coca leaves and is awaiting sentencing. Then, on Feb. 22, the Mooneys entered into a plea deal that ended the case against them.

The plea agreement was finalized the day after the U.S. Supreme Court ruled the government cannot bar a New Mexico congregation from using a hallucinogenic tea during religious rituals, but the U.S. Attorney’s Office said the issues considered in that matter do not affect peyote cases.

Kris Leonard, an assistant Utah attorney general, said the case has no effect on the Mooneys because they no longer are being prosecuted by the state. Leonard said it was based on the Religious Freedom Reformation Act, a federal law that has no application to the state.

Charges Dropped vs. Couple in Peyote Case

SALT LAKE CITY (AP) – Federal prosecutors on Wednesday dropped charges against a husband and wife accused of illegally distributing peyote after they agreed to stay away from the hallucinogenic drug.

James Mooney, 62, and his wife, Linda, 52, leaders of the Oklevueha EarthWalks Native American Church of Utah, had pleaded not guilty to multiple counts of distribution of peyote. They said they used the drug only in American Indian religious services.

The government allows limited use of peyote for ceremonies by members of federally recognized tribes. The tribe in which the Mooneys claimed membership, the Oklevueha Band of Yamassee Seminole Indians, is not federally recognized.

The couple agreed not to acquire, use or distribute peyote until they become members of a federally recognized tribe or there is a clarification of the law regarding the use of peyote through the courts or legislative action.

The announcement by the U.S. attorney’s office for Utah came a day after the Supreme Court ruled in an unrelated case involving a hallucinogenic tea. That ruling said the government cannot hinder religious practices without proof of a “compelling” need to do so.

The Mooneys and their attorneys signed the agreement last week.

Steven Killpack, James Mooney’s attorney, likened the tea used by a branch of a South American religious sect to the peyote used in ceremonies of the Native American Church.

“I’m unaware of any crime being committed by someone under the influence of tea or peyote,” he said.

Richard Lambert, the criminal division chief in the U.S. attorney’s Office, said the agreement avoided the expense of a trial.