CHURCH'S PEYOTE USE OK'D

High Court Ruling May Clear Founder of Charges

Members of a Utah County American Indian church, whatever their race,
can continue to use peyote as part of their religious ceremonies
without fear of state prosecution, the Utah Supreme Court ruled Tuesday.

The unanimous decision applies to all 200 members of the Oklevueha
Earth Walks Native American Church and may result in the complete
dismissal of criminal charges against the church's founder, James
"Flaming Eagle" Mooney.

"The bona fide religious use of peyote cannot serve as the basis for
prosecuting members of the Native American Church under state law,"
Justice Jill Parrish wrote in Tuesday's opinion.

Mooney's attorney, Kathryn Collard, praised the ruling as a victory
for religious freedom that affects all Utahns, not just members of
Mooney's congregation.

"For the rest of us, what it confirms is that individuals can still
rely on the courts and their state and federal constitutional rights
to protect them from this incredible power of the state. And that is a
wonderful thing," Collard said. "I think it should make all of us who
take these rights for granted think about how in every age people have
to struggle to preserve these fundamental rights."

Mooney was unavailable for comment Tuesday, but Collard said he is
grateful for the Supreme Court's decision.

"He just expressed to me what a great thing it is that the court
protected the religious diversity that is the foundation of our
country and our state," Collard said. "He just could not be happier.
It's been a very long struggle for them."

Mooney and his wife, Linda, were arrested in November 2000 and charged
with 10 first-degree felony counts of operating a controlled substance
criminal enterprise and one count of second-degree felony racketeering
for allegedly distributing peyote to non-Indians.

Collard said she will revive a motion to dismiss all charges against
the Mooneys, which 4th District Court Judge Gary Stott rejected in
October 2001 when he ruled that the exception does not apply to any
race other than American Indians.

Though Tuesday's opinion overturns Stott's ruling, Assistant Attorney
General Kris Leonard said it may still be possible for the case to go
forward.

"There are still issues that haven't been decided below that may yet
allow prosecution of the case," she said.

The court's ruling holds true only for members of a valid Native
American Church, Leonard said, and there has been no investigation
into the validity of Mooney's church.

For the purposes of its decision, the Supreme Court assumed Mooney's
representations, she said.

At issue in the case was an exemption in the Federal Controlled
Substance Act that allows the use of peyote in religious ceremonies.
The exception was enacted by the Bureau of Narcotics and Dangerous
Drugs, now known as the Drug Enforcement Administration, after peyote
was classified as a controlled substance in 1970.

The state Attorney General's Office argued on appeal that the
exemption has never been incorporated into state laws controlling drug
use. Additionally, the state argued, the exemption does not apply to
non-Indian members of the Native American Church.

The Supreme Court rejected each argument Tuesday, saying the state
statute must be interpreted to include the exemption to avoid a
conflict between state and federal law and to protect the Mooneys'
constitutional rights. Additionally, the court noted, the exemption
makes no mention of tribal status as a requirement for immunity from
prosecution.

"The term 'members' in the exemption clearly refers to members of the
'Native American Church' _ not to members of federally recognized
tribes," the opinion states. "Therefore, so long as their church is
part of the 'Native American Church,' the Mooneys may not be
prosecuted for using peyote in bona fide religious
ceremonies."

Mooney founded the Oklevueha Earth Walks Native American Church in
1997 in Benjamin, a rural community west of Spanish Fork. The Native
American Church, which was established in 1918 in Oklahoma, operates
throughout the United States and Canada. Each chapter operates
autonomously and sets its own rules.