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Native American church schism sues for right to cannabis

cannabisA seemingly schismatic Oregon branch of the Native American Church claims the US government illegally seized its sacramental cannabis—and is fighting in court to get it back. Oklevueha Native American Church leaders James "Flaming Eagle" Mooney and Joy Graves brought the case Jan. 15 in a US district court in Portland. Graves says she mailed five ounces of cannabis to a church member in Ohio on Dec. 10, but it never arrived. The Postal Service tracking website reported that the package had been seized by law enforcement. A postal inspector in Portland told her cannabis is illegal under federal law and was unimpressed by her claim that she sent the herb to a church member with esophageal cancer for use in healing rituals, according to Courthouse News Service. Oregon legalized medical marijuana in 2007 and approved recreational cannabis through a ballot measure last year. Both remain illegal in Ohio, although small quantities are decriminalized there. Sending cannabis through the mails is a federal crime.

Mooney and Graves say Native Americans have used cannabis ritually for centuries. They want Graves' five ounces back, and an injunction prohibiting the government from seizing their herbal sacrament, claiming ceremonial use as a right under the 1978 American Indian Religious Freedom Act

But they may have a difficult legal battle. Graves does not appear to claim enrollment with any federally recognized Indian tribe. Mooney says he is a descendant of Osceola, a medicine man and war chief of Florida's Seminole Tribe. He claims membership in the Crow clan of the Cox Osceola Seminole Indian Reservation in Orange Springs, Fla. But Ruth Hopkins, chief judge of the Spirit Lake Tribe of Dakota Sioux in Fargo, ND, had a scathing piece in Indian Country Today in December, "Pot and Pretendians," accusing the Oklevueha Native American Church of being wannabe pretend-Indians. She accuses Mooney of creating a "veritable maze" of identities, "desperately trying to prove he's native." She added: "When non-Natives steal ceremonies from us, it creates a spiritual harm. These sacred rites have real power, and that’s not to be taken lightly." While making clear she does not oppose cannabis use per se, she blasted the Oklevueha crew for reckless litigation that could undermine genuine struggles for Native American spiritual rights: "Now don’t misinterpret me here. Marijuana is medicinal, as are many plants utilized by Indigenous people. However, claiming its [sic] part of our spirituality to avoid catching a case threatens the rights of actual Natives who deserve protection under the American Indian Religious Freedom Act."

Mooney has been pressing his claims about cannabis since his son, Michael Rex "Raging Bear" Mooney, sued the federal government in Hawaii in 2009, claiming it illegally seized five pounds he sent through the mail. That case is now pending before the Ninth Circuit Court of Appeals in San Francisco. But five major affiliates of the Native American Church filed an amicus brief with the Ninth Circuit, disavowing any connection with Oklevueha and Mooney. The National Council of Native American Churches, Native American Church of North AmericaAzzee' Bee Nahaga of Diné NationNative American Church of the State of Oklahoma and Native American Church of the State of South Dakota told the court they "do not recognize Oklevueha as a chapter, nor...recognize Mr. Mooney as a member." They additionally stated that the organizations "do not recognize, condone, or allow the religious use of marijuana, or any other substance other than peyote... To the contrary, the only plant that serves as a sacrament in the NAC is peyote, and without peyote, the NAC services could not take place."

In November last year, two members of the Oklevueha Native American Church in California's Sonoma County sued the state and county in federal court for seizing cannabis plants from their church basement in Kenwood. Claims of spiritual use are again being rejected by authorities. Said a County Counsel statement quoted by the Santa Rosa Press Democrat: "There is not a federally recognized tribe in Kenwood, nor is there Indian trust land. The over 600 mature marijuana plants seized from the property appear more consistent with a drug sale operation than local church sacraments."

Craig Dorsay, who argued the case before the US Supreme Court that led to passage of the Religious Freedom Restoration Act and protection of peyote use by the Native American Church, told Courthouse News he'd never heard of cannabis being used as a sacrament in the church. "That was never mentioned when I was representing the church," Dorsay said. That case was launched in 1984, when Alfred Smith, a member of Oregon's Klamath Tribe, was fired from his job as a drug counselor for using peyote during a Native American Church ceremony. In its 5-4 ruling in 1990, the Supreme Court found that the First Amendment did not protect Smith's right to use peyote without fear of losing his job. That decision prompted Congress to pass RFRA in 1993. The following year, the American Indian Religious Freedom Act was amended to protect the "use, possession, or transportation of peyote by an Indian who uses peyote in a traditional manner for bona fide ceremonial purposes in connection with the practice of a traditional Indian religion." Dorsay is skeptical this applies to Mooney and his followers, telling Courthouse News: "The Native American Church has been a very identifiable and discrete entity. It looks like this group is just trying to trade on their name."

Matthew Pappas, attorney for Mooney, Graves and Oklevueha, countered: "You don't have to be Italian to be Roman Catholic. There's no blood test for religion. There is no requirement that you be Chinese to be Buddhist or Indian to be Hindu. Religion is not a blood type." But Dorsay countends that the legal exemption for the Native American Church is based on sovereign status, not on race. "Italy isn't mentioned in the US Constitution," Dorsay said. "Indian tribes are. Tribes are one of the three sovereigns mentioned in the Constitution. So the Supreme Court has upheld special treatment for Indian tribes for 200 years, not based on racial status but based on political status under the Constitution."

Sandor Iron Rope, president of the National Native American Church of North America, told Courthouse News that Mooney and Graves are free to worship as they wish, so long as they don't claim to be part of the Native American Church. "If they want to worship marijuana, fine. But just don't say that you're a Native American Church like we are... At no point in time has marijuana ever been a sacrament of the Native American Church."

The Oklevueha church does claim affiliation with a bona fide Amerindian cannabis tradition. In 2000, the church became affiliated with the Huichol tribe of northern Mexico. The Huichol not only use peyote, but also what they call "mariguana or rosa maria (Cannabis sativa) in their religious ceremonies," according to the Oklevueha suit against Sonoma County.  

"There are many of these tribes that used cannabis in their traditional ceremonies for years. They use it in spiritual healing practices," attorney Pappas told the Press Democrat. "Laws that substantially burden religions are held to a higher standard of strict scrutiny."

But the Huichol are not affiliated with the Native American Church, nor recognized by the US Constitution. These cases could be critical—both in determining whether there is a First Amendment right to sacramental use of cannabis, and in defining the limits of Native American identity. 

Cross-post to High Times

Photo by Drome

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