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Legality, United States, Federal Law

Members of the Native American Church are exempt from federal criminal penalties for religious use of peyote. Where there is exclusive federal jurisdiction or state law is not racially limited, peyote use by NAC members is legal under a racially neutral regulation. This exemption is as old as federal criminal penalties against peyote use and predates the Controlled Substances Act.

Code Of Federal Regulations


Section 1307.31 Native American Church. The listing of peyote as a controlled substance in Schedule I does not apply to the nondrug use of peyote in bona fide religious ceremonies of the Native American Church, and members of the Native American Church so using peyote are exempt from registration. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law.[1]

U.S. v. BOYLL, 774 F.Supp. 133 (D.N.M. 1991)[2] addresses this racial issue specifically and concludes:

For the reasons set out in this Memorandum Opinion and Order, the Court holds that, pursuant to 21 C.F.R. § 1307.31 (1990), the classification of peyote as a Schedule I controlled substance, see 21 U.S.C. § 812(c), Schedule I(c)(12), does not apply to the importation, possession or use of peyote for bona fide ceremonial use by members of the Native American Church, regardless of race.

The cited law in the entry, 42 USC §1996a Traditional Indian religious use of peyote [3]is a response to Employment Division v. Smith, 494 U.S. 872 (1990)[4] and protects Indian religious use of peyote (without regard to NAC membership) from prohibition of religious use of peyote or penalization by state laws and defines Indian for purposes of this section but does not protect non-Indian NAC members from state laws against religious use of peyote.Moss&Fern (talk) 20:33, 1 September 2008 (UTC)

Notwithstanding any other provision of law, the use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State. No Indian shall be penalized or discriminated against on the basis of such use, possession or transportation, including, but not limited to, denial of otherwise applicable benefits under public assistance programs.[5]

The definition of Indian does not include all ethnic Indians and includes some people who might not be called Indians in common usage of the word or might not normally use that as the English word to describe themselves.Moss&Fern (talk) 20:33, 1 September 2008 (UTC)

For purposes of this section— (1) the term “Indian” means a member of an Indian tribe; (2) the term “Indian tribe” means any tribe, band, nation, pueblo, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)),[6] which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians; (3) the term “Indian religion” means any religion— (A) which is practiced by Indians, and (B) the origin and interpretation of which is from within a traditional Indian culture or community; and (4) the term “State” means any State of the United States, and any political subdivision thereof.[7]Moss&Fern (talk) 20:33, 1 September 2008 (UTC)

Matters are much more confusing and complex than this and I've not even refered to some very important laws, court decisions and other subjects, yet I may have written more than appropriate already. At least I had the sense not to try editing the entry page when I'm such a newbie. Moss&Fern (talk) 05:56, 31 August 2008 (UTC)

Don't be nervous about being a newcomer. Your points are all great and the current version of the law section is, as you point out, in serious need of revision. Please feel free to go ahead and make major changes. I would suggest trying to cover everything that you believe to be notable, but don't go into too much depth about any one topic. Citations are very important, and if you have trouble with them just let me know and I can help out. If you would like to be more thorough, a seperate article, Legality of peyote in the United States, for example, could be easily justified in addition to a revision here as there is much on the subject. If you need any advice or if you would like me to revise your changes, drop a line at my talk page or here. Thanks for your much needed suggestions and I hope you can find some time for making the changes! DJLayton4 (talk) 07:27, 31 August 2008 (UTC)

A seperate article on Legality of peyote in the United States would take much more time and legal skills and resources than I have. Some comment on relationship of Federal and State law and the special matters often related to "Indians/Natives" due to treaties, sovereignty issues and whatnot might be appropriate with links to places that address the relevant matters involved here. At the least some paragraph splitting seems necessary for clarity.

BTW, "American jurisdictions enacted these specific statutory exemptions in reaction to ..." may be be true of some states (I don't know) but other states have had exemptions much longer. Sometimes originating as statutes, sometimes soley due to state Supreme Courts (or whatever a particular state calls its highest court)finding the prohibitions unconstitional under state and/or federal Constition, sometimes as statues enacted so the statutory law conforms to the court ruling (l'd guess often to keep as much prohibition as possible spelled out rather than to liberalize the law). Can't offer citations at the moment though People v. Woody, 394 P.2d 813 (Cal. 1964), [8] comes to mind immediately and while looking for somewhere to copy the Woody citation I found some other cases mentioned at [9]. Woody not only predates the first federal exemption but refers to exemptions in at least two other states. I'm pretty certain Woody is still controlling in California though I haven't verified that. I actually got to this Wikipedia article hoping it would point me to a reference source for current Washington State law. I'll need to spend time reading the Wikipedia guidelines and playing in the sandbox learning how to do things correctly before I'm ready to make any entry changes myself. Advice would be welcome in both getting something reasonably coherent, concise and useful whipped together and in then formatting it properly and with appropriate links and such. I've been getting interrupted so much today I can't keep a thought long enough to write it down or tell if what I do write is worth saving so I'm signing off now. Moss&Fern (talk) 22:41, 1 September 2008 (UTC)