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Peyote, Religion, and the War on Drugs
Is James Mooney a drug pusher hiding behind religious freedom or a Medicine Man seeking spirituality?
The officers appearance coincided with that of a package mailed from Texas. A U.S. postal inspector had phoned Sgt. Jeff Robinson, Utah County Attorney investigations division, four days earlier warning that a package addressed to Mooney likely contained peyote. Robinson earlier had contacted the postal inspector, asking him to keep an eye out for a specific type of package addressed to Mooney. The return address on the package was confirmed to be that of a peyote distributor registered with the Drug Enforcement Administration—required by federal law as the legal source for Native Americans wishing to acquire peyote for religious purposes.
Peyote is a cactus indigenous to the southwestern United States and northern Mexico. Common belief is that southern Texas is the only place in the United States where the cactus continues to grow wildly. Peyote contains the alkaloid mescaline that when ingested produces hallucinations, heightened perception of color and an intensification of the senses—similar to LSD but much less potent. Native Americans have considered peyote sacred and have used it in ceremonies for many centuries.
On Oct. 20, 10 days after executing the initial search warrant, police took another package from Mooney that had been mailed from the same source. The package contained about 8,000 buttons of peyote. Again, no charges were filed, leaving Mooney and his attorney, Kathryn Collard, somewhat baffled. On November 3, Collard faxed and mailed a letter to the Utah County Attorney’s office requesting the return of church property. And if the county attorney declined to comply, Collard requested that the office “inform [her] of the legal authority pursuant to which [claim[s] the right to retain the church’s property ….” She received no response.
It wasn’t until November 29 that an arrest warrant was issued for James Mooney and his wife, Linda. In the arrest warrant affidavit, Sgt. Robinson wrote: “There is probable cause to believe that James and Linda Mooney violated the laws of the state of Utah … in that they distributed peyote and devised a business and a down-line of ‘medicine men’ to distribute peyote … to non-Indians. Further, there is probable cause to believe that James and Linda Mooney are a continuing threat to the community. Due to the fact that [they] are continuing their criminal enterprise, I request an arrest warrant for [both of them].”
The Mooneys were subsequently locked up. James was charged with 11 first-degree drug felonies and one count of racketeering. Linda was charged with three first-degree drug felonies. Each of the first-degree felony counts is punishable by five years to life in state prison and a fine of $10,000. Racketeering is a second-degree felony, punishable by one to 15 years in prison and up to a $10,000 fine. Both James and Linda Mooney were later released on bond.
Because James Mooney’s attorneys have advised him not to talk to news media, City Weekly has pieced together his story using letters, court documents and other communications. James Mooney was born in Grass Valley, Calif., in 1944. His grandmother on his father’s side was a full-blooded Indian and his grandfather on his father’s side was one-half Indian. His grandmother on his mother’s side was at least one-quarter Indian. When Mooney was four, his grandparents conducted an ancient and sacred sweat lodge ceremony in which they consecrated him to be a medicine man, according to his church’s website, www.earthwalks.com. It was not until he was 43, however, that he came to a full understanding of his Native American heritage and the gift that had been bestowed upon him by his grandparents so many years before.
As is the case with many Native American youth, Mooney was essentially raised to assimilate into white American society. For years, he was known as James Perkins—the last name of his Caucasian stepfather—and worked as a business consultant. James suffered from manic depression, and his business reflected it. When his wife of 15 years and the mother of his nine children died of cancer, it had a severe effect on him emotionally. His intake of lithium, he says, became upwards of 1,800 milligrams a day. The only thing that kept him alive, that gave him hope in the future was his Mormon faith and his growing understanding and acceptance of his Seminole Native American ancestry.
Within a year after his first peyote sacrament ceremony in the late 1980s—and as his appreciation for the Native American teachings and traditions increased—his lithium consumption had diminished to nil. He had taken on his given last name of Mooney. And as he became increasingly familiar with the Native American ways and the Native American Church, he felt a need to share its traditions and religious rites with all who would seek to know them. James spent the next three years learning and rekindling the sacred sweat lodge and pipe ceremonies, working almost exclusively with Native Americans. He studied the sacred peyote in both Mexico and the United States, and developed a keen understanding of its sacramental use and history.
He was asked to serve as the vice president of the A’Shii-Beto Native American Church in Salt Lake City. The tribal chief and tribal council of the Oklevueha Band of Seminole Indians, Florida, designated him as spiritual leader of his tribe, with a specific edict that, according to Mooney, he “could never refuse anyone help based on race or social status.”
With that designation, Mooney began holding ceremonies of his own. He officiated marriages and funerals. In 1991, he was asked by the Cedar Band of Paiute Indians to volunteer at the Central Utah Correctional Facility in Gunnison, Utah. According to Mooney, they had asked him specifically because he had no criminal record and was obliged to uphold the edict of not refusing help to anyone. For the next three years, Mooney conducted sacred pipe and sweat lodge ceremonies for the Native American inmates. He also counseled inmates and conducted breath ceremonies, which is not a traditional Native American ceremony but, he feels, is a very good way of releasing and controlling tension. On Sept. 19, 1993, Mooney was given the Citizen’s Award of Commendation from the State of Utah, signed by Governor Mike Leavitt.
Less than a month later, Mooney took a job with the Utah Department of Corrections at its Gunnison facility. He supervised the “Last Shot Program” and developed a Native American religious program. During his tenure there, he was awarded the Medal of Merit from the governor for his achievements in deterring inmates from returning to crime and eventually prison.
Michael Buchanan, agent with the Utah State Department of Corrections, said this about Mooney: “Not only are the parolees receiving treatment they so badly need, at the same time Mr. Mooney is helping to reduce the load in our overcrowded community correctional centers. On several occasions, we have been able to parole directly into inpatient substance abuse programs and completely bypass the halfway house. I believe his efforts have saved the state of Utah and the Department of Corrections a significant amount of money when you consider how many halfway house beds are freed up, and how many offenders will have a better chance to succeed on parole. Please congratulate him on a job well done.”
But Mooney was suddenly terminated from Corrections in March of 1997. The circumstances surrounding his dismissal are being contested in a wrongful termination and religious discrimination suit filed by Mooney and his immediate supervisor Merrilee Peterson. She has stated under oath that she was pressured from superiors to lie about Mooney’s job performance in an attempt to get him fired. She refused and was subsequently transferred to a lower position at the Gunnison facility. According to Peterson, her superior’s motives to dispel of Mooney were most likely racially motivated. The case is scheduled to go to trial in April.
Nevertheless, James Mooney continues to work with state and parole officers. In fact, many members of the Oklevueha EarthWalks Native American Church are people with troubled pasts. Many are victims of rape or reformed alcoholics and substance abusers. Many had little or no hope or faith in anything until they met James Mooney and became members of the Oklevueha EarthWalks Native American Church.
Laura van Dernoot, director of Rott-Works, a social change organization in Seattle, had this to say about Oklevueha’s influence among society’s troubled, dispossessed and disillusioned: “I have worked in the field of social change work for 13 years. I have worked with homelessness, domestic violence, child abuse, trauma, incarceration and general oppression. The work I witnessed James and Linda, and their colleagues at Oklevueha, do in regards to all levels of trauma was incredible. I have had the honor of working with many individuals during my career in many different cultures and many different settings. Oklevueha’s ability to create and provide an environment for safe and meaningful transformation for individuals and their communities is unparalleled in my experience.”
Many others have said similar things. In a letter to Mooney, church member Judy Powell writes: “I could write pages on what I have felt since the sweat lodge last Saturday. But for you it is enough to say that I have walked most of my life with combat boots on and now I’m walking in my moccasins.”
The day after the Oklevueha EarthWalks Native American Church was searched by Utah County Sheriff’s deputies, church member John Lewis wrote: “I have been involved with Oklevueha EarthWalks since 1998. I have been able to do many things in my life thanks to these sacred ceremonies and I have seen a great deal of work done in the lives of other people through these ceremonies. These ceremonies promote self-sufficiency and self-discipline. I have witnessed many people find forgiveness and great happiness through these ceremonies, including myself.
“I know James Warren Flaming Eagle Mooney and can speak well of his character. He is an upstanding citizen and member of his faith as well as a courageous man. He desires to help others in every conceivable way and has sacrificed greatly in order to achieve the success he has.”
In early September 2000, Detective Rob Riding, Utah County Sheriff’s Office, asked Sgt. Robinson for assistance on a drug distribution case involving Mooney. Riding had informed Robinson that he had a considerable amount of evidence indicating that Mooney had been acquiring peyote unlawfully since Oct. 2, 1997.
Robinson drafted an affidavit requesting a search warrant. In it, he details the evidence against Mooney. The affidavit states that Mooney had been terminated in October 1997, as a member of the A’Shii-Beto Native American Church located in Salt Lake City and as a member of the Seminole Tribe. The law requires that one be at least one-quarter Native American and belong to a federally recognized tribe to acquire peyote. According to Rider, Chief Blackhorse, president of the A’Shii-Beto Native American Church, claimed Mooney had refused to return his ID card and had been using it since October 1997 to “fraudulently obtain peyote from Texas,” the affidavit states.
As further evidence, Riding referred to a copy of a “Peyote Authorization Permit” dated June 28, 1999, signed by James W.F.E. Mooney. On the permit, Mooney uses the same membership card number that he had when he was associated with the Seminole Tribe. Furthermore, a confidential informant had reported to Robinson that 95 percent of the participants of the peyote sacrament ceremonies were non-Indians, and that at least one non-Indian witness had documented that he received peyote from Mr. Mooney for his own personal use. Robinson’s affidavit continued: “There is no allowance in the law for non-Indians to possess or partake of peyote in Indian religious ceremonies or for their own personal use.”
But Mooney argued that the evidence is invalid. In a response to the complaint, Mooney explained that he never returned his A’Shii-Beto ID card simply because he misplaced it. Oklevueha EarthWalks Native American Church is registered with both the state of Utah and the Texas Department of Public Safety, where Mooney receives the peyote. Oklevueha EarthWalks has been given the blessing of Chief Leslie Fool Bull of the Dakota Sioux Rosebud Reservation, making Mooney legally entitled to acquire the medicine through a DEA-registered peyote distributor, he contends.
The “Peyote Authorization Permit” containing Mooney’s old Seminole ID number is, Mooney claims, merely a sample permit from a book published by Oklevueha EarthWalks to demonstrate to other Native Americans the requirements for legally acquiring peyote. Further, Mooney noted that he was never “terminated” from his position as vice president of the A’Shii-Beto Native American Church. Rather, he formally resigned on Feb. 6, 1998, because he had started his own Native American Church in Benjamin and because he disagreed with Chief Blackhorse about allowing non-Indians to become members.
“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.”
But does it? Federal DEA regulations state only that peyote use is legal in ceremonies conducted by Native American Church members. “The federal law is fairly clear that it is restricted to members of the Native American Church, but the gray area has been: Who is the Native American Church and how do you become a member?” said Don Mendrala, DEA spokesman in Salt Lake City. “The law clearly doesn’t cover that.”
James Mooney prides himself in having always been a law-abiding citizen. He contends that he only allows Native American Church members to participate in peyote sacrament ceremonies. But he doesn’t turn a person away from the church because of race. “From a constitutional aspect, you cannot … dictate spirituality by race,” Mooney said under oath in a deposition from his case pending against the Utah Department of Corrections.
In 1991, Robert Boyll, a non-Indian from New Mexico, was arrested and charged with sending peyote to himself from Mexico. The defendant argued that he was a Native American Church member and that he had every right, under the laws of the United States, to possess and consume peyote for ceremonial purposes. The judge agreed, stating that Mr. Boyll was protected by the Constitution of the United States to worship God according to the dictates of his own conscience. The judge’s ruling states: “In its ‘war’ to free our society of the devastating effects of drugs, the government slights its duty to observe the fundamental freedom of individuals to practice the religion of their choice, regardless of race. Simply put, the court is faced with the quintessential constitutional conflict between an inalienable right upon which this country is founded and the response by the government to the swelling political passions of the day.
“It is one thing for a local branch of the Native American Church to adopt its own restrictions on membership,” the ruling goes on to state, “but it is entirely another for the government to restrict membership in a religious organization on the basis of race. Any such attempt to restrict religious liberties along racial lines would not only be a contemptuous affront to the First Amendment guarantee of freedom of religion but also to the 14th Amendment right to equal justice under the law.”
Mooney’s attorneys could raise questions about the search conducted at Mooney’s residence and the Oklevueha EarthWalks Native American Church, which is located at the same address. As soon as the raid began, Robinson has attested, Mooney asked him to produce the warrant. Robinson complied. The officers were there, it said, “to conduct a search of the personal residence and property of James Warren Flaming Eagle Mooney.” But nowhere in the search warrant did it mention anything about searching church grounds or property. Mooney objected. “You are on church property. The church is registered with the state of Utah.”
Robinson has explained that he stopped the search and made a phone call to Judge Anthony Scofield to discuss “certain facts relating to the execution of the search warrant.” He also called Deputy County Attorney David Wayment. Following those conversations, the search was ordered to continue.
Most of the items confiscated in the search (including the computer, church records, peyote from the safe, and the sacred ceremonial pipe) were taken from church grounds, Mooney claims.
In 1918, several peyote groups in Oklahoma incorporated to become the Native American Church. Professor Omer C. Stewart, a distinguished scholar of peyote and its religious uses, testified at the evidentiary hearing in the Boyll case, “The leaders of the [Native American Church] reasoned that an ‘incorporated’ church would provide greater protection for early attempts to suppress the use of peyote for religious purposes.” Nearly all chapters of the Native American Church are incorporated today, including the Oklevueha EarthWalks church.
“While the Oklahoma Chapter of the Native American Church is sentimentally referred to as the Mother Church,” Stewart explained that no single branch speaks for the other numerous branches throughout the United States. “Unlike more traditional churches, the Native American Church is a non-hierarchical church and has no central organization which dictates church policy. The Native American Church consists of a number of loosely affiliated local chapters. Each chapter is responsible for establishing its own charter, if it so chooses.”
Utah County authorities outlined evidence alleging that Mooney was involved in racketeering by setting up a “marketing side” of the Oklevueha EarthWalks church, known as the Oklevueha EarthWalks Foundation and Eagle Hawk Media, LLC. According to Robinson, the foundation was used so people could donate money without appearing to have donated to a church, but rather to the cause of the church. The money from this, Robinson claims, was used for the “possible purchase of 605 acres of peyote button cactus land in Texas.”
Native Americans have the right to “cultivate, harvest, or distribute peyote” for “the traditional ceremonial use of the peyote,” as written in the in the American Indian Religious Freedom Act of 1994.
Eagle Hawk Media, the affidavit states, “was set-up to aggressively market Mr. Mooney and the church through the Internet, seminars and presentations, etc.” Depending on your perspective, Mooney is either guilty of racketeering or merely attempting to expand his church through an unorthodox form of proselytizing.
Authorities allege that James Mooney charges money to members of the Oklevueha EarthWalks Native American Church wishing to engage in peyote ceremonies. Jerry Patchen, a Houston-based attorney regarded as an expert on peyote laws, says that charging money for peyote ceremonies is “never, never, never” done by authentic Native American Church chapters. “That is absolutely outrageous and violates sacred principles of the Native American Church. I cannot imagine a bona fide Native American Church charging anyone for anything.”
Mooney denies the allegation, but does admit that donations of $200 are recommended. He says the recommended donation is merely to offset church costs, and that he does not turn away anyone who cannot afford to pay it.
The case against James Mooney, his wife, and, indirectly, the members of Oklevueha EarthWalks Native American Church, raise serious questions regarding the limits of religious freedom. The prosecution claims Mooney is a “threat to the community,” a man forging a criminal enterprise by devising a business to distribute peyote to non-Indians. As a consequence, they want James Mooney and his wife, Linda, put behind the walls of the state prison.
James and Linda Mooney, and the majority of Oklevueha EarthWalks members, say James is simply a medicine man who began his own chapter of the Native American Church and has courageously gone against the grain by allowing non-Indians to become members and share in sacred ceremonies, including the peyote sacrament. Church members maintain that what James Mooney is doing is beneficial to their lives—that as a result of Oklevueha EarthWalks they have achieved a greater sense of worth, developed a spirituality that otherwise would not be there and found some form of God to believe in and by which to dictate the course of their lives.
But their sincerity has been questioned extensively. Who are these people? Why are they so interested in belonging to a Native American Church and participating in traditional Native American ceremonies when most are not of Native American descent? Did they join this church just to get high? Why must they insist on using peyote in their ceremonies?
These questions are worth considering. It does not take much to join Oklevueha EarthWalks church. One must take an interest, attend a ceremony, sign a waiver and ask the medicine man to administer the sacrament during the ceremony. It seems likely that some people could take advantage, attending one or more ceremonies simply to get high.
Ronald Garet, a professor of law and religion at the University of Southern California, says that making such an analysis on a religion could potentially violate an American’s freedom to choose his or her own religious principles. “If originality or purity is the test [of a religion’s legitimacy], then many religions will fail,” he said.
Because some people could join the church merely to get high, is the state then justified in throwing its leaders in prison and in the process condemning all those who are practicing their religious rites with sincerity? Could the whole legal situation against Mooney and others in Oklevueha EarthWalks perhaps be based upon a misunderstanding of religious views dissimilar to those typically endorsed by the dominant paradigms of our society? Is James Mooney guilty of criminal activity or simply heresy?
The issue of religious freedom becomes even more interesting in Utah because the state’s founders wanted to make sure that freedom of worship was guaranteed when they drafted Article III of the Utah Constitution: “Perfect toleration of religious sentiment is guaranteed. No inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship.”
According to the Oklevueha EarthWalks proclamation, ceremonies are conducted as a means of connecting people with their creator, “developing an appreciation for all things on this earth, and all our relations,” and to “facilitate change in [people’s] lives.” During these ceremonies, church members say, people with troubled and tortured pasts often become emotional and confessional, digging difficult memories from the place where they may lie latent within, then bringing them to light in an attempt to resolve and get beyond them.
“[Peyote] is like a truth serum,” church member Dianne Sanders said. “It shows you where you are in life.”
“Those who attend a ceremony to get high,” Mooney told television reporters in late November, “are in for a rude awakening.”
Church’s peyote use OK’d
High court ruling may clear founder of charges
Dan Lund, Associated Press
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.
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.