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Religious group wins case tied to peyote use
Tuesday, November 16, 2004

A religious group that drew criticism for comparing itself to the Native American Church won a key court decision on Friday allowing its practitioners the use of a hallucinogenic tea deemed illegal by federal authorities.

O Centro Espirita Beneficiente Uniao do Vegetal, also known as UDV, is a small sect that originated in Brazil. A key part of the group's beliefs is the use of hoasca, a brew of tea that comes from a vine indigenous to the Amazon, to treat disease, commune with spirits and hold visions.

In Brazil, UDV can use the hallucinogen without breaking the law. But in the United States, its non-Indian practitioners from Santa Fe, New Mexico, found themselves in trouble for importing bottles of the tea into the country.

The federal government contends hoasca is listed under the Controlled Substances Act (CSA), making it a violation to possess the tea. Authorities said they would begin prosecuting UDV members for using the drug.

But UDV leaders said they were being denied the right to practice their religion, drawing a parallel to the Native American Church, whose practitioners are granted an exemption to use peyote, a hallucinogen also covered by the CSA.

In a lengthy decision, a panel of 13 judges on the 10th Circuit Court of Appeals could not agree whether the comparison is valid. The judges issued five different opinions to explain their varying positions but, in the end, voted 8-5 to affirm preliminary injunction that allows UDV members to use hoasca without fear of prosecution.

The majority that upheld the injunction sided with UDV's interpretation and said application of CSA was a violation of the group's religious freedoms. They judges also said the United Nations Convention on Psychotropic Substances, an international treaty, weighed in UDV's favor.

"In light of the convention's acknowledgment that the use of psychotropic substances in the course of religious rituals may warrant an exception from the treaty's terms, as well as the exemption granted to the United States for peyote, the government's argument that it will be significantly harmed by a preliminary injunction temporarily restraining it from enforcing the treaty against the UDV does not ring entirely true," Judge Stephanie K. Seymour wrote.

But another group of seven judges said the exemption for peyote was related to the government's trust responsibility to Native Americans and could not be extended to other groups on a case-by-case basis. They voted to deny the injunction on the grounds that the Religious Freedom Restoration Act (RFRA) does not allow courts to recognize "routine" religious exemptions from drug laws.

"To read the exemption for the Native American Church as an indication that Congress and the executive have not precluded 'a particularized assessment of the risks involved in specific sacramental use' of controlled substances, proves too much," Judge Michael R. Murphy wrote in a

Yet another group of four judges wrote to show that UDV could qualify for an exemption just like the Native American Church. They agreed that Congress envisioned cases like this when passing CSA and RFRA.

"[I]t may sometimes be 'consistent with the public health and safety' to exempt certain people from its requirements," Judge Michael W. McConnell wrote. "Indeed, the government evidently believed this to be true with respect to the Native American Church's peyote use," he added.

A fourth opinion by one judge rejected UDV's case outright without delving into the peyote issue. Finally, the court issued a fifth, unanimous "per curiam" opinion on a legal theory of preliminary injunctions unrelated to peyote, the Native American Church or UDV.

When the case was going to trial, three Native American Church groups opposed UDV's comparison to their religion. The Native American Church of North America, the Native American Church of Oklahoma and the Native American Church of the Kiowa Tribe of Oklahoma filed a brief pointing out that UDV practitioners were largely non-Indians who imported a religion from a different country. The brief accused UDV of "badly distorting and misrepresenting" NAC and of ignoring the trust responsibility aspect of the peyote exemption.

NAC leaders fear their rights are at risk if exemptions for peyote and other drugs are granted to non-Indians. Many cite a recent case in Utah, where a self-proclaimed medicine man who is not enrolled in any tribe was found with 13,000 "buttons" of peyote, a religious sacrament.

The Utah Supreme Court, in a controversial decision, said state law was not clear when it came to the drug. The court ruled that any NAC practitioner, regardless of enrollment or ancestry, could possess and use peyote.

Federal authorities, acting on complaints from Native advocates, are considering laying charges against James "Flaming Eagle" Mooney, who claims one-quarter Seminole ancestry. Utah officials were also debating an appeal to the U.S. Supreme Court. The Navajo Nation, the largest tribe in the county, is considering a law to limit use of peyote to members of recognized tribes.

It is possible that the UDV case could also head to the high court due the conflicting words that came out of the 10th Circuit. In 1990, the court held that NAC practitioners could be prosecuted under Oregon law, a decision that led to the peyote exemption and the Indian Religious Freedom Act Amendments of 1994.

The word hoasca is derived from ayahuasca, a Quechua word meaning "vine of the souls" or "vine of the dead." Ayahuasca

UDV Decisions:
En Banc (November 12, 2004) | Panel (September 4, 2003) | Federal Judge (September 12, 2002)

Peyote Decision:
State of Utah v. Mooney (June 22, 2004) (7/12)

Relevant Links:
Uniao do Vegetal - http://www.udv.org.br
Ayahuasca - http://www.ayahuasca.com/