Peyote Peace Pipe: To toke, or not to toke…

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As a Columbus, Ohio criminal lawyer, clients routinely ask me some unusual questions. Recently, a client contacted me with an interesting one.

He wanted to smoke sacramental peyote, but wondered if he legally could. Sacramental peyote is an ancient tradition of some American Indian tribes that involves ingesting peyote which the United States Government and most states consider to be a dangerous drug.

My client is not an American Indian, but he wanted to know if he joined a Native American church, if that would exempt him from the legal prohibition against peyote use on religious grounds.

I was not immediately certain how to answer his question.

I recalled from my study of constitutional law that the Supreme Court has held that laws of general applicability (laws not targeting a particular religion) would be enforced even if the law offended particular religious practices.

However, I also remembered that the U.S. Supreme Court had recently ruled that some employers did not have to offer employees Obama care plans that conflicted with the employers’ deeply held religious beliefs regarding contraception and abortion.

This recent decision seemed to conflict with the Supreme Court’s former holding that non-discriminatory laws would be applied equally despite religious objections.

Because of this apparent conflict, I advised my client that I would need to research his question and get back with him.

What follows is my researched response. Because I am an Ohio attorney and the question pertains to Ohio law, some of the information is specific to Ohio drug laws. But the answer also address broader federal and constitutional questions.

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Dear Client:

I wanted to follow up with you regarding your question about the legality of sacramental peyote in the United States and in the State of Ohio.

From my review of the law, it appears that federal law has created an exception to the general prohibition of the sale and use of peyote with respect to Native Americans.

Under federal law, both the U.S. Supreme Court and the Congress agree that, it is currently legal for Indians to use peyote for bona fide religious purposes.

However, it is presently not clear that this protection must be afforded by the States, nor extended to non-Indian Native American Church members.

Ohio law continues to criminalize the use and trafficking of peyote without exception based upon tribal or church affiliation.

Under the evolving state of the law, there certainly is an opportunity to construct a defense to criminal charges in Ohio or federal courts. However, this would be a novel and relatively risky defense. This would be especially dangerous in the more conservative Ohio counties.

One number to pay attention to is thirty grams or ten unit doses. Exceeding this “bulk amount” turns either fifth degree felony possession or fourth degree felony trafficking into a third degree felony or higher level offense depending on the actual quantity. Click here for more details on quantities and offenses levels.

Background:

In 1990, in a case called Employment Div., Dept. of Human Resources of Ore. v. Smith, the US Supreme Court decided that, because laws criminalizing peyote were non-discriminatory and generally applicable to everyone, Native Americans’ use of peyote was not protected under the Free Exercise (of Religion) Clause of the First Amendment. 494 U. S. 872

In 1993, the US Congress responded to the Smith case by enacting the Religious Freedom Restoration Act or “RFRA.”

RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” §2000bb-1(a).

In 1997, in case called City of Boerne v. Flores, the U.S. Supreme Court held that the Congress overstepped its authority and that the RFRA was unconstitutional as applied to States. 521 U.S. 507.

Earlier this year, in a case called Burwell v. Hobby Lobby Stores, Inc., the US Supreme Court enforced the RFRA against Health and Human Services Department regulations that required closely held Corporations with Pro-life Christian owners to offer health care plans that included post-fertilization contraceptives. 573 U.S. 22 (2014).

However, the Supreme Court warned that the Burwell case should be narrowly construed to interpreting these regulations, as applied to certain types of contraceptives and closely held corporations.

In 1994, also in response to the Smith case, the US Congress passed an amendment to the American Indian Religious Freedom Act (AIRFAA), that states:

“the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.” 42 U.S.C. 1996A(b)(1).”

With respect to federal law, this federal statute effectively legalizes peyote for Native American Church members who are Indians.

The statute defines an Indian as “a member of an Indian tribe” and the term “Indian tribe” means any tribe… which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Currently, the United States does not consider the Native American Church to be an Indian tribe.

Despite the language that sacramental peyote use shall not be prohibited by any state, it is not clear that this language is constitutionally enforceable against the states.

At least one federal court has held that non-Indian members of the Native American Church are exempted from prosecution under federal peyote drug laws.

In 1991, in case called US v. Boyll, a federal district court in New Mexico ruled that federal regulations (21 C.F.R. § 1307.31) exempted not only Indian, but also Non-Indian members of the Native American Church who use peyote for a bona fide ceremonial purpose. 774 F. Supp. 1333.

However, the Boyll case has been called into question if not expressly overruled. In 2002, the same district court held that: “This Court also observes that the Boyll opinion preceded Congress’s enactment of AIRFAA in 1994. AIRFAA clarified that the peyote exemption is rooted in the trust relationship between Indian tribes and the federal government. 42 U.S.C. § 1996a.[4] This Court has been unable to locate any federal court opinions decided after the enactment of AIRFAA which have found the federal peyote exemption to extend to non-Indians.” O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 282 F. Supp. 2d 1271 (D.N.M. 2002).

Conclusion:

Federal law provides only limited exemptions to some members of the Native American Church from prosecution under federal drug laws. These protections do not necessarily extend to State drug laws nor to Non-Indian Native American Church members.

Therefore, Non-Indians interested in participating in Native American Church ceremonial use of sacramental peyote should proceed with extreme caution with understanding of the very real possibility of prosecution under federal and state peyote laws.

Thank you for the opportunity to study the law on the issue. I am happy to discuss these matters in more detail with you in the future.

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