AIFRA Amendments of 1994 do not include Marijuana

By Vi Waln

The American Indian Religious Freedom Act (AIRFA) Amendments of 1994 were established to protect members of federally-recognized Indian tribes who attend Native American Church (NAC) ceremonies and ingest peyote. The AIRFA also allows members of federally recognized tribes to obtain permits to buy, possess and transport peyote for use in bona fide ceremonies.

According to Wikipedia, Section 2 of the Act speaks to the “Traditional Indian Religious Use of the Peyote Sacrament,” and reads in part:

(c) 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. . .(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.

People must be enrolled members of federally recognized tribes to either possess peyote or attend NAC services. Consequently, this law applies only to peyote. The AIRFA Acts of 1994 were not created to recognize religious organizations where other controlled substances, such as marijuana or ayahuasca, are used.

James “Flaming Eagle” Mooney, who has been in the news many times over the last several years, made headlines again last month with claims that sacramental marijuana was seized by officials. Mooney, along with Joy Graves, claim to be leaders of the bogus Oklevueha NAC based in Gunnison, Utah. According an article published on January 26, 2016 on the Court House News website, the pair is suing the US government, along with the US Postal Service, in Federal Court for seizing the marijuana.

Consequently, Mooney, along with his wife Linda, were caught with 12,000 peyote buttons, which were seized by law enforcement, in 2000. The non-Indian couple subsequently agreed to stop using peyote as a condition of the dismissal of several charges involving a controlled substance. So, the Oklevueha chapter is not affiliated with any bona fide NAC which considers peyote as a sacrament.

The article also states that “Graves says she mailed 5 ounces of marijuana to a church member in Ohio on Dec. 10 last year, but it never arrived. A week after she mailed it, she says, the Post Office’s tracking website reported that her package had been seized by law enforcement.”

Mooney and Graves claim that their marijuana is considered a sacrament and was seized illegally. Marijuana is legal in Oregon, where Graves heads up a bogus NAC chapter. However, it is illegal to send marijuana through the mail. Again, the AIRFA Amendments of 1994 don’t apply to marijuana.

Consequently, a Brief of Amici Curiae was filed in 2014 with the Ninth Circuit Court by the National Council of Native American Churches, The Native American Church of North America, The Azzee’ Bee Nahaga of Diné Nation and both The Native American Churches of Oklahoma and South Dakota. This brief was filed in Docket No. 14-15143: Oklevueha Native American Church of Hawaii, Inc.; Michael Rex “Raging Bear” Mooney (Plaintiff/Appellants) v. Eric H. Holder, Jr., as US Attorney General, et al. The brief states:

The Amici NAC organizations do not recognize Oklevueha as a chapter, nor does it recognize Mooney as a member. In addition, Amici organizations do not recognize, condone, or allow the religious use of marijuana, or any other substance other than peyote in any of its religious services. To the contrary, the only plant that serves as a sacrament in the NAC is peyote, and without peyote, the NAC services could not take place. The Amici organizations fully reject Appellants’ contention that marijuana serves as a substitute for peyote in services of any Native American Church.

Similarly, the AIRFA Amendments do not apply in this case. The statute expressly and exclusively provides an exemption to federal and state drug laws for members of federally-recognized Indian tribes who use peyote in traditional Indian religious practices. Mr. Mooney, by his own admission, not a member of a federally-recognized tribe, and in this case, neither he nor Oklevueha seeks legal protection for the use of peyote. The AIRFA Amendments do not apply in a case like this one where an individual who is not a member of a federally recognized tribe seeks legal protection for the possession, use, and distribution of marijuana.

Mooney has a website where he claims to have been given a blessing in 1998 by the late Leslie Fool Bull, who served as the Chairman of the Native American Church of South Dakota. Mooney alleges that he was told by the late Fool Bull to “take this medicine to the white man.” He also claims on his website that this “blessing” was witnessed by Kirk Fool Bull, son of the late spiritual leader.

However, in an affidavit dated January 28, 2016, Kirk Fool Bull denies witnessing his late father giving Mooney any kind of blessing to distribute peyote to non-Indians. The late Leslie Fool Bull only wished Mooney safe travels, after the non-Indian paid the late Fool Bull an impromptu visit in the Rapid City Regional Hospital. Kirk also states in his affidavit he only gave Mooney his phone number so the non-Indian could call when he returned home safely.

Mooney is dangerous. He puts our right to use and possess the sacred peyote at risk with his attempt to include the use of marijuana in the AIRFA. Our medicine people fought hard to guarantee our freedom to attend our sacred NAC ceremonies and use peyote as a sacrament. Mooney, as well as countless non-Indians like him, are a threat to that freedom.