Chip Taylor

Is your church approved by the government?

Do you have federally-approved membership in a federally-approved church?

It's no secret that when the War on Drugs and the Constitution collide, the WoD is the clear winner. Nowhere is this more clear than in regulations on the use of peyote in religious ceremonies.

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.

The American Indian Religious Freedom Act seems to me to be in direct conflict with the first amendment since it seems to be a case in which Congress has made a law "respecting an establishment of religion, or prohibiting the free exercise thereof". Enforcing it requires government definitions of "religion," "ceremony," "Indian," and "member." The definition of member is at issue in a Utah case. In this case, the question is whether you have to be a member of the tribe in order to be a bona-fide member of the religion.

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.

Native American members of the "religion" don't necessarily welcome participation of those from outside the tribe.

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.

I put "scare quotes" around "religion" above because the Native Americans don't necessarily view it as a "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.''

So why do Native Americans style their beliefs in the form of religion? I guess it seemed to be the only way to get the government off their backs with respect to 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.

Now, it's the "nonhierarchical" part that seems to be giving them trouble. With no hierarchy, presumably anyone can start a Native American Church, even those not recognized by the feds as Native Americans, and start wolfing down the peyote buttons. Having signed on to the notion that they have to form a religion in order to get an exemption from drug laws, they now have to protect the religion from interlopers who might be using the religion as a ruse to take peyote. (I'm not saying that's what the Mooneys are doing.) Otherwise, the government, having asserted the authority to define who and how a certain religion can be practiced, could decide that the whole mess makes it too easy for "non-legitimate" users of peyote to get high under the guise of religious practice.

It seems repugnant to the First Amendment that the government would be so intimately involved in deciding:

a) what constitutes a legitimate religion,
b) what ceremonies a religion may observe, (and don't trot out the human sacrifice example; you know what I'm talking about),
c) who may be a member of a given religion and thus, authorized to practice the ceremonies.

I can't imagine any Judeo-Christian denomination being subjected to or tolerating the same sort of interference. But then they don't present the same threat to the oh-so-important War on Drugs.