By Gayle Highpine (*) written especially to this blog (**)
The Ayahuasca Healing Retreats (also known as Ayahuasca USA) are apparently sincere in their belief that they have a legal exemption to use ayahuasca. Their belief in that legality claim comes from their affiliation with the Oklevueha Native American Church (ONAC).
Oklevueha (pronounced OK-le-va) Native American Church openly and explicitly claims that their members have the legal right to use any plant-based sacrament — peyote, cannabis, ayahuasca, or any other plant-based entheogen. And they advertise that anyone who buys a membership card from them gains that legal right. Membership cards can be purchased online for $200, and (according to ONAC) confer the legal right to use otherwise illegal entheogens.
WHY BEING A MEMBER OF OKLEVUEHA NATIVE AMERICAN CHURCH WILL BENEFIT YOU…It Provides You A Means To Receive Your Constitutional Rights In Attending Earth Based Indigenous American Native Spiritually Empowering and Healing Ceremonies – especially Native American Church indigenous ceremonies that involve sacraments (peyote, cannabis, ayahuasca, etc) that are otherwise illegal for Non-Members to partake and or be in possession of.
The right to start an ONAC chapter and serve sacraments is reported by different sources at $2500 or $7000. (Selling religion is deeply offensive to Native Americans, and this is only one of the reasons that ONAC and its imitators are disavowed by mainstream branches of the Native American Church.)
On its web page ONAC has posted several congressional acts and court opinions, in order to make its claim to legality look legitimate — but it misrepresents the content of these documents:
It cites the Religious Freedom Restoration Act (RFRA), which makes it possible to sue for religious freedom exemptions to generally applicable laws – but which certainly does not automatically make all entheogenic sacraments legal.
It cites the American Indian Religious Freedom Act (AIRFA), which was amended in 1994 to grant the use to use peyote in a religious context to American Indian people – but which says nothing about any other sacrament.
It cites the Supreme Court UDV decision, Gonzales v. O Centro Espirita Beneficiente União do Vegetal, in which the Uniao do Vegetal won the legal right to use their sacrament Hoasca — but which applies to no other group but the UDV and to no other sacrament but ayahuasca.
It cites the Religious Land Use and Institutionalized Persons Act of 2000, a law which deals with zoning issues around churches and with religious rights of prisoners — but which says nothing about entheogenic sacraments at all.
It cites United States vs Boyll, the 1991 case that was the first victory for non-Indian right to use peyote in New Mexico — but that has no mention of any other entheogenic sacrament.
Court opinions are long and difficult reading, and most people would probably just take ONAC’s word for it on what they say – but they shouldn’t. In actual fact, most of the laws and court decisions that ONAC cites establish precedents or foundations for potential actions to try to expand entheogenic religious rights, but until someone actually goes through the court system (either by taking the offense and suing the government, as the UDV and Santo Daime did, or by using a RFRA-based defense against prosecution) and wins, these cases represent no more than a precedent on which future cases may be based.
However, ONAC did have one landmark victory for entheogenic religious rights.
In 1994, Congress passed an amendment to the 1978 American Indian Religious Freedom Act that legalized peyote consumption in a religious context to all American Indian people. However, beyond the requirement that states cannot penalize “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,” the states can decide to restrict or regulate peyote (or any other plant or drug they choose). Beyond that minimum requirement, state laws vary. Oregon and Arizona allow anyone with sincere religious intent to consume peyote; Colorado, Minnesota, Nevada and New Mexico allow anyone to take it with a bona fide religious organization (not necessarily NAC); Iowa, Oklahoma, South Dakota, and Wisconsin allow anyone to take it within an NAC ceremony; Kansas allows only NAC members to take it within an NAC ceremony only; Idaho allows it only for people of Native descent within an NAC ceremony held on a reservation; Wyoming allows it only for NAC members but not necessarily within an NAC ceremony; Texas allows it only for people who are both NAC members and of Native descent, but not necessarily within an NAC ceremony.
The state of Utah had specified that peyote consumption was legal only for Native American Church members. In 2000, James “Flaming Eagle” Mooney, the founder/leader of ONAC, was arrested with 12,000 peyote buttons. The state of Utah claimed that only members of federally recognized tribes could use peyote in Utah. In his defense, Mooney argued that legally limiting the right to take peyote to some NAC members (Indians) and not others (non-Indians) violated the Equal Protection Clause – i.e., was racial discrimination. (Mooney says that he is of Seminole descent, but nearly all members of his church are non-Indian.)
In a 2004 decision, the Utah Supreme Court granted him a unanimous victory – but it was neither on grounds of religious freedom or of equal protection. Rather, the court based its decision on plain reading of the Utah law, which simply specified Native American Church members and did not mention race. The court said:
Utah law incorporates a federal regulation exempting from prosecution members of the Native American Church who use peyote in bona fide religious ceremonies. On its face, the federal regulation does not restrict the exemption to members of federally recognized tribes. We therefore rule that the exemption is available to all members of the Native American Church. Any other interpretation is… inconsistent with the plain language of the exemption. [emphasis added]
However, the federal government said the Mooneys and the non-Indian members of their church were still prohibited under federal law from possessing or using peyote. Though they had won a victory over the state level charges, Mooney and his wife were indicted federally in 2005 on peyote-related charges. But those charges were dropped in February 2006, the day after the U.S. Supreme Court announced its decision in the UDV case.
James Mooney said that he felt the charges being dropped had everything to do with the UDV victory in the Supreme Court. And he was undoubtedly right; the potential precedent set by Gonzales v. O Centro Espirita Beneficiente União do Vegetal for the religious rights of non-Indian religious peyote users was big enough to drive a truck through. Had the case been pursued (either by the federal prosecutors or by Mooney taking the initiative to sue the government under RFRA) Mooney, using the UDV case as a precedent, would have had an excellent chance of winning a religious freedom exemption for the use of peyote.
But he didn’t pursue a religious freedom exemption of their own for peyote. The ONAC merely cites the UDV case as though it establishes their rights as a done deal.
The Supreme Court decision in Gonzales v. O Centro Espirita Beneficiente União do Vegetal applies only to the UDV, and only to their sacrament, Hoasca. It does not confer on ONAC or on any other group the legal right to use ayahuasca. Much less does it confer on ONAC a blanket right to use any illegal entheogen it chooses.
Had ONAC actually pursued a RFRA case using the UDV case as a precedent, rather than acting as though the UDV victory automatically applied to them, the ONAC might well have won a religious exemption for peyote. But their chance of winning a blanket legal right to use any and all “earth-based sacraments” would be zero. In fact, under entheogenic religious case law, a church’s use of more than one entheogenic sacrament works against their chances to gain a legal exemption for any of their sacraments.
Yet ONAC maintains that they have the legal right not only to use peyote anywhere in the US, regardless of state laws, but also that they have the legal right to use any “earth-based sacrament,” even entheogens not traditionally used by Native North Americans, such as cannabis and ayahuasca. Some ONAC branches claim the legal right to use psilocybe mushrooms, iboga, San Pedro,coca, and/or even DMT as well.
Moreover (although the Utah Supreme Court said that Utah state law at the time granted the right to religious use of peyote to any NAC member regardless of race) ONAC maintains that they have “unique constitutional rights” not possessed by rival NAC organizations like the Missouri-based New Haven Native American Church (NHNAC). ONAC became upset when the Ayahuasca Healing Retreats initially affiliated with the NHNAC, maintaining that ONAC alone could offer the AHR legal protection:
Please note that there are only two organizations off Indian Reservations that have the legal rights and authority to conduct American Native ceremonies that utilize the sacramental tea (Ayahuasca or Hoasca); 1) O Centro Espirita Beneficente Uniao do Vegetal (UDV) and 2) Oklevueha Native American Church (ONAC) and/or Blessed ONAC Independent Branch.
It is true that there are only two organizations with the legal right to hold ceremonies with ayahuasca in the US — but they are, of course, the UDV and certain Santo Daime churches, not the UDV and ONAC.
But the Ayahuasca Healing Retreats, at last report, has decided to affiliate with ONAC:
We have received legal advice from the Native American Church to ensure that our legality is unquestionable. In order to ensure our Ayahuasca Retreats are 100% legal, we are upgrading our website to be in total compliance with the Codes of Ethics and Conduct of the Oklevueha Native American Church.
However, the legal protection that ONAC claims to give to their members is fictitious. A Michigan man named Branden Barnes found this out to his sorrow. He believed that his membership in ONAC protected his marijuana grow, and as a result of believing in ONAC’s deception, he is facing 20 years to life in prison (his sentencing is on January 28). On a fundraising page (with zero contributions, although Barnes is supposed to be the leader of an ONAC church, for whom his marijuana plants were being grown – 400 plants, so his church must be huge) Barnes and his partner state:
We are protected federally and allowed to possess any earth based plant we consider sacred such as cannabis as our holy sacrament. In 2014, Branden’s home suspiciously caught on fire while he was inside. Inside the home was an approved Native American Sacrament Garden which was being grown for use as sacrament and for its medicinal properties. Branden had proper signs posted throughout the home (indoor and outdoor) with all the necessary legal documents declaring his status as a member of the church. Upon calling 911 emergency personel responded to the fire. Branden immediately stated his position in the church and showed all necessary documents to the law enforcement officials on scene. They admitted to having no knowledge of the church and proceeded to treat him and the church sacrament being grown in a standard criminal fashion. The DEA and local police have conspired against the Oklevueha Native American Church, James “Flaming Eagle” Mooney, and Branden Barnes in an attempt to unlawfully deprive us of our right to practice our religous beliefs.
Clearly, Barnes sincerely believed that he was protected and following the law, but ignorance of the law is not admissible as a defense.
But ONAC cannot similarly be credited with naive, good-faith ignorance on this matter. ONAC has already had a test case for their religious right to use cannabis, and they lost.
In 2009, ONAC Hawaii (a “Native American Church” whose members smoke marijuana in the sweat lodge) had a shipment of a pound of marijuana seized by the government and destroyed. ONAC Hawaii sued the government for compensation and for the right to use the cannabis sacrament. They had to sue as a RFRA case, like anyone else, because not for one second did the courts take seriously the idea that, as a “Native American Church,” they could automatically use any plant they wanted to.
The case went through various phases, the RFRA claim and compensation claim being first dismissed by the district court, then their grounds for a RFRA suit being upheld on appeal. Finally the Ninth Circuit Court dismissed their RFRA claim, saying:
On the bare record before the court, a jury could not reasonably find in favor of Plaintiffs without, in effect, determining that any individual could use any drug by simply asserting that he or she was part of a religion that used that drug as a sacrament. Given what little is before the court, this court grants summary judgment in favor of the Government on the RFRA claim.
ONAC Hawaii may be appealing in the hopes of getting a Supreme Court hearing. But the key point is, the court did not even consider the notion that ONAC Hawaii had an existing legal right to use cannabis religiously, by virtue of being a Native American Church or a branch of ONAC. ONAC Hawaii had to sue for a religious exemption under RFRA, just as the UDV did, and just as anyone else would — and they lost.
There have been other local cases where ONAC members have been arrested for cannabis, such as the 2010 misdemeanor conviction of ONAC member Jeff “Standing Tall” Gardner for possession of paraphernalia containing cannabis resin. There have been reports of other arrests of ONAC members for cannabis, although details are hard to come by.
ONAC recently brought suit against Sonoma County (CA) for destroying the marijuana plants of the Valley of the Moon ONAC church in the unincorporated town of Kenwood (pop 1,030). Their lawyer, Matthew Pappas (a civil rights and disability attorney who has a background in medical marijuana issues, but no apparent background in entheogenic religion law, RFRA law or American Indian law) claimed that ONAC’s constitutional rights had been violated, and filed suit to recover the value of the seized plants. The ONAC church of Kenwood is reported to have fewer than ten members. The church had had 662 marijuana plants. Even if that single crop represented the whole year’s grow, one wonders how the members manage to each consume around 66 pounds of marijuana per year, or five to six pounds of marijuana apiece per month, in their religious ceremonies.
Yet the ONAC people still haven’t realized that they do not, in actual fact, have a legal right to religious use of cannabis, much less to cultivation of marijuana in unlimited amounts. Instead, they maintain that the legal issues they have had around cannabis show that ONAC is the “target of conspiracy,” “illegal harassment,” and “misguided judicial prosecutions.” They accuse the Native American Rights Fund (NARF) of conspiring with the BIA and the DEA against them as well.
As an example of the priority that ONAC gives to fantasy wishful thinking over actual facts, ONAC offers this lesson in history:
…in the year of 1876 by United States President Ulysses S. Grant signed into law under the Dawes Act, in relationship with the Lakota Sioux Rosebud Reservation, designating the Lakota Sioux religious practices of the Rosebud Native American Church of South Dakota as an earth based healing religion and that the Temple of this religion is the planet earth and ‘every substance’ provided by the earth is sacred and is to be utilized as a Sacrament.
In actual fact, the Dawes Act was passed in 1887, not 1876; it was signed into law by Grover Cleveland, not Ulysses S. Grant; the Rosebud Reservation had no special mention in it; and, most important, its purpose was to divide up Indian lands so they could be sold on the open market to non-Indian ranchers, and to “break up the tribal mass” and facilitate the destruction of Indian culture and assimilation of the Indian people. The Dawes Act came on the heels of the 1883 Religious Crimes Code, which outlawed Indian religion and ceremonies, and which was not lifted until 1934 and not formally repealed until 1978. The US government certainly did not “designat[e] the Lakota Sioux religious practices… as an earth based healing religion and that the Temple of this religion is the planet earth and ‘every substance’ provided by the earth is sacred and is to be utilized as a Sacrament.”
This is but a small sample of the fantasy world this group appears to live in.
– Nothing in US law or court decisions allows religious exemptions for any otherwise illegal sacraments except for peyote and ayahuasca.
– ONAC has no special legal status and has no more or less legal protection to offer members than its rivals like the New Haven Native American Church of Missouri.
– Ayahuasca is legal for the two religious organizations (UDV and Santo Daime) that have sued for their rights under RFRA. Ayahuasca is NOT legal for any Native American Church chapters. Nor is it legal for anyone who simply claims ayahuasca as a sacrament who has not gone through the religious freedom exemption legal process.
The “public legal ayahuasca churches” are putting themselves at legal risk, especially the Ayahuasca Healing Retreat, because of its high profile and aggressive publicity.
The “public legal ayahuasca churches” (Ayahuasca Healings in Washington and Ayaquest Native American Church in Kentucky) would do better to prepare themselves to fight their own RFRA cases, and in order to do that, they would need to begin by studying the legal precedents around ayahuasca churches, other entheogen cases and other RFRA cases, and learning the facts rather than depending on ONAC’s fantasies.
Joining ONAC does NOT provide legal protection for any “earth-based sacraments” except for peyote in certain states. By telling members that they can legally use “any earth-based sacrament,” the ONAC is misinforming people and putting them in danger.