statelaws
From our Journal, Vol. 1 No. 3
THE LEGAL ROOT
State by State comparison of peyote statutes
Adapted from The Entheogen Law Reporter, compiled and edited by Richard Glen Boire, Esq.


State by state chart

Peyote has been a religious sacrament on the North American continent for well over 6000 years. As early as the Spanish Conquest, up through the times the United States spread westward, peyotists have suffered persecution. During the prohibition era, many substances fell under the scrutiny of legislators enacting laws designed for the public welfare. The Native Americans feared their peyote sacrament would become subject to proscription under these laws. With the help of James Mooney, an anthropologist from the Smithsonian, Quanah Parker and many others, the Native American Church organized in 1918 with the intention of protecting their sacrament and preserving their religion.

In 1970, Congress passed the Controlled Substance Act which specifically prohibited the use of peyote. Although the Native American Church was automatically issued an exemption, the possession of peyote became subject to federal regulation. The trade of medicine became commercialized and heavily monitored.

The Federal Exemption (21 cfr 1307.31 (1993)) The listing of peyote as a controlled substance in Schedule 1 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 to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of the law.

Most states follow the federal guidelines laid out by the Uniform Controlled Substances Act of 1990 for a religious exemption, but a few states with noticeable N.A.C. activity felt it was necessary to specifically outline requirements for the use of peyote. Perhaps this is because this act does not contain an express exemption for the religious use of peyote or any other controlled substance. The drafters of the Uniform Act only included a “comment” admonishing:

Although peyote is listed as a Schedule 1 controlled substance in the act and under Schedule 1 of the federal act, a separate federal regulation (21 cfr 1307.31 (April 1, 1989)) exempts the nondrug use of peyote in bona fide religious ceremonies of the Native American Church. In light of Employment Division v. Smith 494 U.S. 872, 108 L. Ed.2d 876, 110 S.Ct 1595 (1990), states should consider including in Schedule 1 an exemption similiar to that found in 21 cfr 1307.31 (Uniform Controlled Substances Act (1990) (U.L.A.) sec, 204 “comment”.)


As laws evolved and court cases further the molded peyote’s legal position, the prospects for non-Native American peyote based organizations arose. In Arizona, The Peyote Way Church of God and The Peyote Foundation can operate because of the exemption from prosecution is based on religious sincerity, not on race, denomination, or physical boundaries. Oregon has a similar statute with the exception of that it is specifically not applicable to the residents of correctional facilities.

Four other states have slightly more stringent requirements. Peyotists in Nevada, New Mexico, Colorado and Minnesota must be members of a bona fide religious organization, including the N.A.C. or the American Indian Church. (Minnesota.) Some state’s statutes could legally permit a non-Native American to sit a peyote meeting if it was run by the N.A.C. Others require actual N.A.C. membership, some even of Native Americans. Unfortunately, Texas, the native habitat of the peyote cactus, has the strictest requirements for exemption from prosecution. Texas exceeds the federal guidelines by requiring that a person be not only a member of the N.A.C., but of at least 25% Native American descent.

Peyote’s religious exemptions do not insure freedom from prosecution as the burden of proof still rests with the defendant. Evidence of a spiritual practice is often called for in a court of law. Even in Arizona, where the exemption has been upheld and is well known, we are still subject to persecution due to the over-handed and unconstitutional scrutiny applied by the War on Drugs.

If the state does not appear below, there
were no explicit legislative exemptions found concerning peyote.
-
Sincere
religious
intent
With a
bonafide
religious
organization		Within
NAC
ceremony
 NAC
membership
required
 Native
American
descent
required		 On
reservation
only
 Incarcerated
persons
not
exempt
AZ
X
--- ---
CO-
X
-- ---
ID--
X
 -
X
X
 -
IA--
X
- ---
KS--
X
X
--
X
MN-
X
- ----
NV-
X
- ----
NM-
X
- ----
OK--
X
 ----
OR
X
-- ----
SD--
X
 ----
TX---
X
X
--
WI--
X
 ----
WY---
X
 ---

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