"The Amici Native American Church organizations do not recognize the Oklevueha Church of Hawaii, Inc., as a chapter, nor do they recognize Mr. Mooney as a member of a legitimate chapter of the Native American Church," the brief states. "To the extent that the claims of Oklevueha or Mr. Mooney rest on allegations or inferences of an affiliation with the Amici Native American Church organizations or with any legitimate chapter of the Native American Church, they should be rejected."
The amici added: "As the District Court noted, the record contains no evidence of a relationship with the Native American Church generally, nor with The Native American Church of North America in particular, and mere use of the 'Native American Church' name does not entitle Appellants to the claimed legal exemptions."
Craig Dorsay, who argued the case before the U.S. Supreme Court that led to the passage of the Religious Freedom Restoration Act in 2003 and protection of the use of peyote by members of the Native American Church, told Courthouse News he'd never heard of marijuana being used as a sacrament in the church.
"That was never mentioned when I was representing the church," Dorsay said.
That case began in 1984, when Alfred Smith, a member of the Klamath Tribe and the Native American Church, was fired from his job as a drug counselor for using peyote during a religious ceremony.
Smith sued, and the case wound up in the Supreme Court.
Dorsay described his arguments at the court.
"The State of Oregon argued that peyote was dangerous to people, although they did exhaustive research and never found one circumstance where one person had overdosed on peyote in last 100 years," Dorsay said. "So we said, 'Look at what the church is asserting and how dangerous it is.'
"We said, 'Peyote has never harmed Native Americans, but look at how alcohol has harmed Native Americans. During prohibition, if Indians had had a choice over which substance to outlaw, they would outlaw alcohol because it has ruined hundreds of thousands of native lives while peyote has never harmed a Native American.'
"Rehnquist said something like, 'That's all water under the bridge now,'" Dorsay said.
He said it had been important to exclude marijuana from his argument.
"Sandra Day O'Connor asked me how we would distinguish peyote from marijuana. She said something like, 'I bet you don't want to go down that path.' Everyone knew she was the swing vote at the time and we knew from her statement that she saw a danger in conflating the two substances."
In its 5-4 ruling in 1990, the Supreme Court found that Smith's First Amendment rights did not protect his right to participate in peyote ceremonies without fear of losing his job.
That loss is widely cited as the instigator for passage of the Religious Freedom Restoration Act of 1993, which "ensures that interests in religious freedom are protected."
The Act specifically excluded the Native American Church, until 1994 amendments to the American Indian Religious Freedom Act directed that "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 is lawful, and shall not be prohibited by the United States or by any State."
Dorsay said Smith, who died in November 2014 at 95, was vindicated.
"Al's position was that the law needed to be clarified, rather than hiding at the margins. It sort of was in that 5-4 decision, then, the Religious Freedom Restoration Act was passed to override that decision. So Al ultimately got what he was after, which was religious freedom."
Dorsay said many others had tried to get a religious exemption to use marijuana.
"At that time, there were a lot of other groups that had tried to get marijuana exempted like peyote," Dorsay said. "We were trying to exempt it based on volume and ease of enforcement. They had seized very little peyote over the last 10 years, versus the seizure of hundreds of pounds of marijuana. So the government was saying peyote was not an enforcement issue for them, but marijuana was."
Dorsay said he's heard arguments like Mooney's before.
"We've had a lot of interesting claims over the years about people who tried to form tribes to claim protected status," Dorsay said. "This is not a new or unique claim they are making. Many marijuana churches over the years have tried to get an exemption, and they've been unsuccessful. "In most cases, a lot of these people are people who either don't have much Indian blood or aren't tribal members."
However, Dorsay added: "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, said in an interview that the government should not be in charge of deciding who gets to participate in a specific church.
"You don't have to be Italian to be Roman Catholic," Pappas said. "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 said the legal exemption for the Native American Church is based on sovereign status, not on race.
"Italy isn't mentioned in the U.S. 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."
Pappas said that the law allows anyone to start a religion.
"You know what?" Pappas said. "I could go start a Native American church. I could start the Matt Pappas Church and if I had a bona fide belief in the things I was representing spiritually, I could go and do that. Religion is a belief, it's not a blood type. This country was founded in part because of religious persecution. We have made that an important part of our culture and part of our laws."
Dorsay said that was true.
"Anyone can claim to be a religion," Dorsay said. "The courts' general rule is they don't determine whether a person's religious claims are genuine or not, because the court is not qualified to make that decision. Instead, they just determine, one, whether state has a compelling reason to regulate the activity, and two, what is the least restrictive alternative that balances the various interests of the practitioner and the state?"
Sandor Iron Rope, president of the National Native American Church of North America, said Mooney and Graves are free to worship whatever they want, do long as they don't call it part of the Native American Church.
"If they want to worship marijuana, fine," Sandor said. "But just don't say that you're a Native American Church like we are. We know who we are, we know what we come from, we know the atrocities we've come from. But you have an individual that claims Native American heritage to grasp onto our indigenous ways and run with it. At no point in time has marijuana ever been a sacrament of the Native American Church."
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