With its traditions steeped in modesty, the Native American Church faces an existential dilemma from the aggressive movement in its name to treat marijuana as a church sacrament.
The Ninth Circuit just rejected one such challenge, but the issue’s fate is far from certain.
Continue reading for a closer look the church’s delicate history, and the legal protections some say are attracting outsiders. To return to Part I of this series, click here.
Old Traditions, New Structure
The future of a cultural institution founded to protect participants of an ancient tradition from genocide is making its way through half a dozen courts. Resolution will require unified rules to follow and define a religion that spans hundreds of independent sovereign nations.
The first Native American Church was founded in 1918, but this institution served to safeguard the religions its members have observed for thousands of years.
Archeological evidence places peyote use in the Americas as far back as 8,000 B.C., but the Bureau of Indian Affairs historically seized and destroyed peyote, and denied food to Indians on reservations for participating in peyote ceremonies.
At one particularly heinous confrontation in 1890, the Seventh Calvary killed more than 200 Lakota Sioux as they prayed while participating in the Ghost Dance ceremony.
With more than 300,000 members today, the name “Native American Church” matters, said Sandor Iron Rope, the president of the National Council of Native American Churches and the Native American Church of North America.
This name represents the sacrifices of past generations and their foresight to protect specific religious practices, Iron Rope said. For new generations or outsiders to bring new practices under this umbrella, he added, is an affront to native elders.
“Calling ourselves a Native American Church in the beginning — we chose that name for a reason, and it was for protection,” Iron Rope said. “Back then, we had no rights. Our grandma and grandpa had no rights. In order to preserve our rights at that time we had to call it a church.”
This generational gap is evident in voting, a practice not guaranteed for Indians in all the states until 1948. This came 24 years after Congress extended citizenship to all Native Americans with the Indian Citizenship Act.
Iron Rope said the elders understood that “one of the things the white government recognizes is a church.”
“So that’s why we chose the name ‘church’ and that was supposed to protect our people,” Iron Rope said. “And now you have outsiders calling themselves a Native American Church. Anybody could just say they’re a Native American Church, but that doesn’t mean there’s an indigenous tradition, a teaching or foundation behind it.”
Authenticity or Exclusivity?
One of the so-called outsiders drawing the ire of Iron Rope’s council is James Mooney, who founded a Native American Church that includes marijuana as a central sacrament.
Mooney’s attorney, Matt Pappas, called it racist to restrict church membership to only Native Americans.
“You don’t have to be Italian to be part of the Roman Catholic Church,” Pappas said. “You don’t have to be Chinese to be Buddhist. Religion is an idea. It’s a belief. It’s not based on blood type. That blood-oriented idea is brought to us from the federal government, the same government that brought us the Trail of Tears. And the Bureau of Indian Affairs? For years and years, their job was to kill Native Americans.”
Pappas said it shouldn’t matter to the courts whether the Mooneys have native ancestry or whether the Native American Church has a history of using marijuana as a sacrament.
“It’s not up to the court to determine whether their beliefs are valid,” he said. “Only whether they are sincere about it. I could go out tomorrow and I could form a church just as long as I sincerely believe in it. Just like the Church of the Flying Spaghetti Monster. I could wear a strainer on my head and say that’s a central tenant, as long as I truly believe that. There doesn’t have to be 700 years of history or a certain blood type or anything else, as long as the beliefs are sincerely held.”
A U.S. graduate student founded the Church of the Flying Spaghetti Monster as a satiric exercise against creationists in 2005, but courts have resisted efforts to grant it protected status. Just last week, a federal judge shot down claims from a so-called Pastafarian inmate who said Nebraska prison officials violated his rights.
Mooney’s fight to obtain federal protections for his church parallels that of his son, Michael Rex “Raging Bear” Mooney, who split off with his own faith, the Native American Church of Hawaii.
Discussing the family fallout over the phone, Michael Mooney said his father’s church has “cheapened itself” by letting go of traditional customs and by charging people to participate in ceremonies.
Anyone can join James Mooney’s Oklevueha Native American Church online by paying $200 and filling out a form, regardless of their membership status with a native tribe.
Michael Mooney called it “taboo” to charge for participation in church ceremonies.
“My father is a good man but I believe that, in order to be a member, you need to actually be involved in ceremonies and not just get on the computer and become a member of the church,” Michael Mooney said in an interview. “I believe there’s a lack of sincerity and authenticity in that.”
And James Mooney had harsh words for his son.
“He’s a thug,” the elder Mooney said. “I love my son, but the facts are the facts.”
Ninth Circuit Steps In
Michael Mooney and his church filed a federal complaint in 2009 against the U.S. attorney general, the head of the U.S. Drug Enforcement Administration and the U.S. attorney for Hawaii.
They claimed one of their church members was unfairly targeted for federal prosecution after police seized his sacred marijuana, but Chief U.S. District Judge Susan Oki Mollway threw out the case.
Finding that that Mooney espoused nothing more than “a strongly held belief in the importance or benefits of marijuana,” Mollway said Mooney failed to show that a prohibition on the use of marijuana would create a “substantial burden” on his religion.
The U.S. Court of Appeals for the Ninth Circuit affirmed that decision earlier this month.
Though Mooney said he uses marijuana daily and in twice-monthly moon ceremonies, the court emphasized his other testimony that marijuana was only a substitute for peyote, rather than an irreplaceable sacrament.
“We fail to see how prohibiting a substance that Mooney freely admits is a substitute would force them to act at odds with their religious beliefs at least when they have made no showing that their primary sacramental substances are otherwise unavailable,” Judge Diarmuid O’Scannlain for a three-judge panel in Honolulu.
Discussing his intent to appeal, Michael Mooney said the court “had it wrong.”
“Our chief sacrament is cannabis,” Mooney said in an interview. “It’s not peyote or ayahuasca.”
Mooney, who calls peyote the “grandfather spirit” of his church, and cannabis “chief mother medicine,” said he agrees with native elders who say various psychoactive-plant medicines should not be mixed together during ceremony.
That distinction may have been where the court got the idea that peyote could take the place of marijuana, Mooney said.
“I have a relationship with Mescalito, the spirit of peyote, so much so that I don’t even believe you should mix tobacco in a peyote ceremony,” Mooney said. “The only offering I like to make in a peyote ceremony is putting cedar on the fire.”
Mooney said he doesn’t even drink water “when sitting with grandfather.”
“I believe when Mescalito has his time, he likes it to be just his time,” Mooney said. “But each medicine has its time. Before you enter teepee, cannabis is like a kind of warning for grandfather. And when you exit in the morning when the sun is coming up, cannabis can be a beautiful experience. But during ceremony I don’t believe they should be mixed.”
Mooney’s attorney, Michael Glenn of Honolulu, called the Ninth Circuit ruling “a terrible decision, unsupported by fact.”
“They didn’t seem to understand that the Native American Church has no books and it has no tenants,” Glenn said. “The Native American Church doesn’t even have a building. It’s just a way of life that has existed for thousands of years.”
Glenn said the ruling came as a surprise, given the decision in Burwell v. Hobby Lobby, where the U.S. Supreme Court found that a for-profit corporation could use religion as a reason to refuse to pay for contraception for employees.
“But a church that has been using peyote and cannabis for thousands of years being prevented from religious ceremony is not substantially burdened?” Glenn said. “I guess if we mentioned abortion or said we wanted to discriminate against gays that would have been protected.”
Five major players in the Native American Church had wanted the Ninth Circuit to address broader themes, but the panel did not reach those arguments.
Courthouse News takes a look at these questions in the final part of this series, which also explores the controversy’s timing amid nationwide momentum to decriminalize marijuana. Check back Tuesday for Part III.
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