PROSECUTORS PROTEST PEYOTE - CHURCH SUIT

Utah County prosecutors have asked a federal judge to dismiss a lawsuit
filed against them by the founders of an American Indian church who use and
distribute the hallucinogenic drug peyote.

The civil suit was filed in November by James W. "Flaming Eagle" Mooney,
56, founder of the Oklevueha Earthwalks Native American Church of Utah and
some of his followers just three days after prosecutors filed 13 criminal
charges against them.

The private attorneys representing Utah County Attorney Kay Bryson, Utah
County Sheriff David Bateman and their staffs say the case falls under the
Doctrine of Federal Abstention - a policy against federal-court
interference in state civil or criminal cases.

"The enforcement of state laws is undeniably an interest of the state and,
traditionally, state criminal proceedings have been decided in state
courts," the document state. "Rulings from two different courts will cause
confusion and uncertainty."

On Oct. 10 county law enforcement officials raided Mooney's home in
Benjamin, a rural community west of Spanish Fork, and found "a large
quantity of peyote," as well as drug paraphernalia and church records.
Prosecutors say Mooney has developed a "down-line" marketing scheme to
distribute the drug nationally through non-Indian "medicine men." Peyote, a
bud found on certain cacti, has been part of American Indian religious
ceremonies for hundreds of years.

Mooney's attorney, Kathryn Collard, said he is legally authorized to gather
and distribute peyote and that he and his followers are being prevented
from practicing their religion.

"We are going to oppose this motion (to dismiss the case) vigorously,"
Collard told the Deseret News. "Most of the members of the Oklevueha Church
are not being criminally prosecuted, and yet all of them are being
prevented from exercising their First Amendment rights." Abstention in this
case, Collard said, is simply not appropriate. According to a
probable-cause affidavit, Mooney told a state licensing official that
anyone, Indian or not, can become a member of his church. The affidavit
says about 95 percent of church members are non-Indian. It is illegal to
ingest peyote in Utah and at least 27 other states. But Congress made an
exception in 1994 for the drug's use in traditional Indian religions by
members of federally recognized tribes. Utah County prosecutors argue
Mooney's case doesn't apply under the exemption because he is not enrolled
in a tribe and he administers peyote mostly to whites.

Mooney claims ancestry in the Oklevueha Seminole band, which is not
federally recognized. He has been criticized by some American Indians for
giving peyote to non-Indians.