Utah judge: Federal law allowing peyote use applies only to Native Americans

By The Associated Press

05.10.01

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OGDEN, Utah — The federal law that allows American Indians to use the hallucinogenic drug peyote during religious rites does not extend to non-Native Americans, a 2nd District judge has ruled.

In his ruling yesterday against Nicholas Stark, of Ogden, Judge Roger Dutson said, "Clearly, there is a protection for the use of peyote for Native Americans, but Mr. Stark does not come under that protection."

Stark is charged with second-degree felony possession with intent to distribute for possession of peyote and a third-degree felony possession charge involving coca leaves, used to make cocaine, also found on his premises.

Defense attorney Ronald Yengich had contended that the felony drug distribution charges against Stark violated his right to religious freedom.

"Once (the government) gives an exemption to an established religion, it must be extended to everybody," Yengich said.

Deputy Weber County Attorney Richard Parmley argued that the federal law allowing peyote use was written not to protect religious freedom but to "preserve the unique cultural history of the Native American people."

Yengich said Stark was a member of the Oklevueha Earthwalks Native American Church, which he said is on file as a church with the Texas Department of Public Safety.

The state of Texas granted the Utah branch of the church a "peyote authorization permit" in mid-1999, Yengich added.

The Utah branch of the church has sued the Utah County attorney's and sheriff's office over an October drug raid at the church's site in Benjamin. Founder James Warren "Flaming Eagle" Mooney has charged that police confiscated a computer and emptied a metal vault of about 12,000 buttons of peyote.

Parmley, however, said the church does not appear on the federal government's list of officially recognized American Indian tribes.

But Yengich said that non-Indians should not be barred from the "religious sustenance" offered by Native American religions simply because they do not "bear a particular DNA in their blood."

"Mr. Stark professes those beliefs, he practices them," Yengich said.

Stark, 50, claims he is one-quarter Iroquois, which is the minimum percentage required to be considered Native American under federal law, but has no documentation. He also says he is a former drug addict who kicked his habit with the aid of peyote and then tried to use it to help others in crisis.

A scheduling hearing is set for May 29 before Dutson.

Meanwhile, Johnny Blackhorse, president of the A Shii-Be-To chapter of the Native American Church, which is based in Salt Lake City, called both Stark and Mooney impostors.

"You can't just wake up one day and say, 'I want to be this,' " Blackhorse said. "It'd be like going to the Mormon church and saying, 'I'm going to be a bishop.' "

Update

Utah high court to hear arguments on peyote use by non-Indians
Two men argue that they have same right as tribal members to use drug during religious ceremonies.  01.11.02