ANCIENT RITE - PEYOTE RITUAL STIRS TROUBLE IN UTAH

At the state crime lab in Taylorsville, 3,500 peyote buttons rest
inside a metal vault.

Nick Stark, a medicine man in the Oklevueha Earth Walks chapter of
the Native American Church in Benjamin, owned the buttons before
police confiscated them July 8. Claiming he is entitled to use and
share the hallucinogenic plant as an American Indian spiritual leader,
he wants them returned.

Weber County police and prosecutors, investigating Stark for possible
drug distribution charges, say they would destroy the peyote if a
court rules Stark had them illegally.

However, leaders of the A Shii-Be-To chapter of the Native American
Church (NAC), based in Salt Lake City, dismiss Stark as an imposter
and decry the idea of destroying the peyote, which is eaten and used
to brew a tea during religious ceremonies.

They want the buttons.

"We do not want anything to happen to the peyote," said President
Johnny Blackhorse. "It is so sacred, so precious to us. We call it
'Mother Peyote' because that is how we feel about it. If somebody
damages it, it would be like somebody hurting your mother."

Blackhorse contends the 10 pounds of peyote should be given to "a real
church. . . . It should never be given back to [Stark]."

For thousands of years, American Indians have considered peyote -- a
hallucinogenic cactus that grows in the limestone soils of the
Chihuahuan desert in southern Texas and northern Mexico -- integral to
traditional religious ceremonies.

Such ceremonial usage is protected. Under federal law, use of peyote
during "bona fide" ceremonies in "traditional" American Indian
religions is lawful.

But the tug-of-war over Stark's buttons highlights the difficulty law
enforcement faces in interpreting just whose religion is sufficiently
"traditional" or "real" to enjoy protection from prosecution for using
peyote during worship.

Ronald Garet, a professor of law and religion at the University of
Southern California, says such an analysis raises serious questions
about potential violations of Americans' freedom of religion.

"If originality or purity is the test" of a religion's validity, Garet
said, "then many religions will fail."

Asking a judge to determine the correctness of a church's religious
practices would probably be unconstitutional, he added. "Once a court
is asked to adjudicate . . . it's put into a position where it might
run afoul of the First Amendment," Garet said.

Federal Drug Enforcement Administration regulations state only that
peyote use is legal in ceremonies conducted by Native American Church
members.

"The federal law is fairly clear it is restricted to the members of
the Native American Church, but the gray area has been: Who is the NAC
and how do you become a member?" said Don Mendrala, DEA spokesman in
Salt Lake City. "The law clearly doesn't cover that."

Squabbling Chapters: The rift between Blackhorse's church in Salt Lake
City and Stark's church in Benjamin, which is led by president James "Flaming
Eagle" Mooney, was sparked by debate over traditional American Indian
religious practices.

The A Shii-Be-To chapter is part of the Native American Church of
North America. Blackhorse, who is DinZ, or Navajo, estimates his
church has 60 members, many of whom come from American Indian
reservations to find temporary work and are seeking a place to worship
while in Salt Lake City.

Two years ago, Mooney was a vice president in the A Shii-Be-To church.
But he resigned after its leaders protested that his newly formed
Oklevueha Earth Walks church had abused tradition and flouted national
bylaws of the NAC of North America by including non-Indians in peyote
ceremonies, and by charging admittance.

"We do not say that [non-Indians] could not benefit from the medicine
[peyote]," Blackhorse said. "Anybody can benefit spiritually from it,
but we have to stay within the law. The law forbids it."

Almost all of the more than 90 churches that claim to be Native
American churches in the U.S. are comprised of members with American
Indian ancestry, said Jerry Patchen, a Houston-based attorney regarded
as an expert on peyote laws.

"I'd say over 95 percent of the members are Native American," Patchen
said.

And accepting money in any form for peyote ceremonies is "never,
never, never" done by authentic Native American Church chapters,
Patchen said. "That is absolutely outrageous and violates sacred
principles of the Native American Church," he said. "I cannot imagine
a bona fide Native American Church charging anyone for anything."

Mooney's view of who can participate in peyote ceremonies is
dramatically less exclusive. Mooney, who traces his ancestry to a
Seminole tribe in Florida, has said his 4-year-old church has about
3,000 members, the majority of whom are white.

Although he declined comment for this story, he explained his beliefs
under oath in February 1999. Mooney is suing Utah Department of
Corrections officials over his 1997 termination from its facility at
Gunnison, where he was a rehabilitation specialist and created its
sweat lodge as part of a drug treatment program.

"From a constitutional aspect, you cannot . . . dictate spirituality
by race, and that's what I follow, is the Constitution of our
country," he said.

His tribal chief in Florida instructed him to share peyote with
anyone who seeks it, Mooney said. Assistant Attorney General Jennifer
Falk asked, "So, if I were to ask you for peyote right now, do you
feel you'd have to give it to me?"

Mooney answered: "I have to. It's a mandate. I cannot refuse
anybody."

Stark, who says his ancestry is Iroquois, has a similar view. "They
just got off the street, out of prison -- we don't care," Stark said.
"We're here to serve; we're here to help anybody."

Mooney and Stark have denied charging their church members, saying
that requests for donations of $200 or more for peyote ceremonies are
optional. Mooney said he has disciplined Stark, but declined to
elaborate on how Stark had violated his church's practices or reveal
the consequences.

Stark's ceremonies, held in a rainbow-colored tepee in his Ogden
Canyon back yard, outraged A Shii-Be-To leaders, who question his
authority as a medicine man in Mooney's church and his ancestry.

Arnold Thomas, a Shoshone NAC member who serves as a spiritual advisor
to American Indians at the Utah State Prison, said, "If you start
having non-Indians conduct the sacred ceremonies, there is a lot that
can be lost."

He added: "You cannot just wake up one day and decide you are a
medicine man. The ceremony cannot be held by just anybody. It would be
like somebody who one day just decided he was an LDS bishop and
started running a Mormon church. Think of the outcry then."

Ancient Traditions: To Blackhorse, who works in Salt Lake City as a
welder, Stark's ceremonies demonstrate insolence toward ancient traditions.

"Our service always takes place in a white tepee, and we never invite
multicolored people," Blackhorse said. "[Stark's ceremony] abused our
sacred religion and our medicine."

Blackhorse worries that opening peyote ceremonies to everyone will
dilute the power of the medicine, and erode American Indians' right to
maintain their own traditions.

"Our elders are afraid that if the white people start using the
medicine they will suddenly know what is what," he said. "They will
make new laws."

Peyote grows in the United States only in Texas, where Mooney's church
is on a Department of Public Safety (DPS) registry of Native American
churches, considered the legal gatherers of the plant. Harvesters
travel to the Holy Peyote Gardens around Rio Grande City, Texas,
year-round, where the plant is growing scarcer as development
encroaches on its habitat.

Before harvesters arrive, they must obtain permission from the Texas
DPS.

"If [peyote] is in the ground, it is just a plant. But as soon as it
is harvested it becomes a controlled substance," said Jody Patterson,
controlled substances registration supervisor for the Texas DPS. "If
you are an Indian you have the right to possess, use and transport it,
but to buy it you have to show registration documents."

Mooney met the requirements for the harvesting and purchasing permit:
his Native American church is incorporated; he belongs to the Seminole
tribe and is at least one-quarter American Indian. While Mooney points
to the registry as proof of his church's legal ability to use and
distribute peyote, Patchen, the peyote expert, said Texas officials
have no way to verify whether a church is truly a Native American church.

"There is no official registry of Native American churches," Patchen
said.

The Utah Attorney General's Office says the debate over "bona fide"
Native American churches is irrelevant, contending Utah's peyote law
makes no distinction.

State law considers the plant a drug equivalent to heroin or LSD, with
a high potential for abuse, no acceptable medicinal uses and -- in
conflict with federal law -- no exceptions for American Indian
religious ceremonies.

State attorneys assert the federal peyote exemption only supersedes
state law when the peyote use occurs on federal property, such as an
American Indian reservation, said Tracey Tabet, deputy chief of staff
for Utah Attorney General Jan Graham.

Otherwise, Tabet said, state law prevails -- leaving the door open to
charge Stark, no matter how authentic his Native American church or
American Indian ancestry.

Police began investigating Stark after a woman at a July 8 ceremony
said she had been forced to eat peyote and held against her will.

Garet argues the state's jurisdictional scenario is incorrect. Under
the U.S. Constitution, federal law always trumps state law unless the
federal law can be proven unconstitutional, he said. "Congress has the
ultimate authority to determine the special legal status of American
Indians," Garet said.

On Friday, Weber County Attorney Mark R. De Caria said his office is
still awaiting results of tests to confirm the buttons taken from
Stark are peyote, and is investigating laws on use of the plant.

De Caria said: "My office is working to determine if prosecution will
result from the investigation. . . . If prosecution goes forth, my
belief is there will be significant arguments made over the freedom of
religion issue."