PEYOTE AND PEYOTE LAW

When Spanish explorers first stepped onto America's soil, several tribes in
northern Mexico had already used peyote for a dozen generations.

Today, peyote grows chiefly in northern Mexico and south Texas. The plant
is a small, woolly cactus shaped like a button and is traditionally
consumed either in tea made from dried buttons or by swallowing the
buttons. Along with causing its user to become violently ill, peyote
eventually results in a feeling of intense well-being and produces a number
of other psychological effects, including hallucinations and richly colored
visions.

In federal law, peyote is listed as a Schedule 1 controlled substance.
Schedule 1 is for substances with hallucinogenic properties that are
thought to have high potential for abuse.

Robert Paiz, spokesman for the Houston division of the U.S. Drug
Enforcement Agency, said distributors of peyote are required to register
with the DEA. "The primary restriction is that they distribute only to
Native Americans and that they distribute for religious rites," he said.

The U.S. Drug Enforcement Agency reports only a handful of registered
distributors who are permitted to sell peyote, and sell only to persons who
can prove at least one-quarter blood lineage to a Native American tribe.

Medicine men who live too far from the Texan plains to harvest their own
peyote purchase it from such distributors, who must follow regulations from
the DEA and the Texas Department of Public Safety. Peyote can be mailed
using the U.S. Postal Service if both the distributor and the purchaser of
the peyote meet the government's requirements.

Salvador Johnson, a peyote distributor in Mirando City, Texas, said the DEA
has pressured him in recent years to be more selective in deciding to whom
he should sell peyote.

He said that while membership in a Native American church used to be
sufficient, his clients must now prove American Indian ancestry.

"We started asking for tribal enrollment cards and certificates of Indian
Blood," Johnson said. "That is the only way we can prove a person is who he
says he is."

A federal statute limits peyote use to "Indians" who use it in "bona fide
religious ceremonies."

In deciding James "Flaming Eagle" Mooney's case, the Utah Supreme Court had
a lot of latitude. The state's drug laws prohibit a long list of controlled
substances, but allowed for unspecified "exceptions" and "exemptions." The
court had at least two exemptions to choose from -- one in the federal code
and another in a DEA regulation. The first exemption would have limited
peyote use to members of federally recognized tribe. The second -- the DEA
regulation -- allows peyote use among members of the Native American
Church. But despite the wording of its regulation, the DEA has
traditionally interpreted its regulation to mean that only members of
federally recognized tribes are exempt.

The Utah Supreme Court chose the DEA's exemption but rejected the DEA's
interpretation. The court ruled that any member of a Native American church
could consume peyote as part of a "bona fide religious ceremony."

The roundabout ruling -- which rejected the DEA's interpretation of it own
regulation -- raised eyebrows among experts on federal Indian law like
Kevin Worthen, dean of Brigham Young University's J. Reuben Clark Law School.

"The reasoning for me was a bit surprising," Worthen said of the ruling.
"The court has done it in an interesting way and not the most straight-line
fashion, but it is legitimate for them to do that."

Worthen said the Utah court's ruling carries no legal weight in federal
courts. In other words, a non-American Indian member of a Native American
church might be free to consume peyote in religious ceremonies under Utah
law, but he could still be charged in federal courts for breaking federal
laws.

The U.S. Supreme Court has ruled consistently that peyote is not protected
under the First Amendment's guarantee of free exercise of religion. Even
Utah's Supreme Court was careful to avoid citing the First Amendment in
making its ruling.

Last month, the U.S. Supreme Court agreed to hear a case that could have
bearing on federal peyote law. The case pits the federal drug law against
the Religious Freedom Restoration Act of 1993, a law that requires the
government to show a compelling interest when limiting a person's religious
freedoms.

The case will decide whether American members of the Brazilian religious
sect O Centro Espirita Beneficiente Uniao Do Vegetal should be permitted to
drink a hallucinogenic tea as part of their worship. Lower courts have so
far sided with the church.