Pubdate: Sun, 17 Jan 2016
Source: Press Democrat, The (Santa Rosa, CA)
Copyright: 2016 The Press Democrat
Contact:  http://www.pressdemocrat.com/
Details: http://www.mapinc.org/media/348
Author: Clark Mason

AFTER KENWOOD DRUG BUST, BRANCH OF OKLEVUEHA NATIVE AMERICAN CHURCH 
SEEKS COURT RULING ON POT USE

In what could be a test case to create a legal category of 
"sacramental marijuana," a Kenwood branch of a church co-founded by a 
man claiming Native American heritage is suing Sonoma County, 
contending that the branch's cannabis was wrongfully seized by 
deputies because its members are entitled to it for religious 
purposes, similar to exemptions made for peyote and ayahuasca use by 
some native groups.

Is marijuana central to the tenets of the Oklevueha Native American 
Church, or are its members simply looking for a convenient cover to 
get high and grow lots of pot? The question is at the heart of a 
federal civil lawsuit, as well as a pending criminal prosecution 
stemming from a raid last year at the church's newly established 
Sonoma County branch, located off a rural road in the Kenwood area.

Two members of the church claim that sheriff's deputies violated 
their civil rights by confiscating marijuana used in their religious 
ceremonies.

When sheriff's deputies raided the property off Lawndale Road in 
September and arrested the resident, who is also the president of the 
branch of the church, the deputies dismissed it as a "bogus" front 
for drug trafficking, according to a federal lawsuit filed Nov. 24 in 
San Francisco by the church.

The county and sheriff's officials knew the property was the site of 
a religious operation, according to the lawsuit, "however based on 
stereotypes about Native Americans and the lack of knowledge about 
the religious ceremonies, practices and spirituality of church 
members concluded on their own that (the) church was illegitimate."

In the raid, approximately 600 marijuana plants were confiscated and 
the church branch president, Saul A. Garcia, 39, was arrested on 
suspicion of cultivating marijuana illegally and possession for sale.

Garcia spent more than a day in jail before posting bail, but so far, 
charges have not been filed against him by Sonoma County prosecutors, 
who requested more time for investigation. His arraignment is 
scheduled for Tuesday at 8:30 a.m. in Sonoma County Superior Court.

County officials said they have not been served with the lawsuit and 
declined to be interviewed, but gave an indication of how they view 
the church's claim.

"There is not a federally recognized tribe in Kenwood, nor is there 
Indian trust land. The over 600 mature marijuana plants seized from 
the property appear more consistent with a drug sale operation than 
local church sacraments," County Counsel Bruce Goldstein stated in an email.

It isn't the first time that members of the church or its founder, 
James Warren "Flaming Eagle" Mooney, 72, of Utah, have run afoul of 
law enforcement over the use of substances they consider sacramental, 
including peyote and cannabis.

Federal law protects the ceremonial use of peyote by Indian religious 
practitioners.

But in 2000, authorities seized 12,000 peyote buttons from Mooney's 
church in Benjamin, Utah, claiming that he wasn't a member of a 
federally recognized tribe.

Mooney is a medicine man descended from Seminole Indians in Florida 
and his church serves the Oglala Sioux Tribe of Pine Ridge South 
Dakota, according to the church's court filings in the San Francisco 
case. In court filings in the Utah case, Mooney claimed that his 
forefathers deliberately avoided enrollment in tribal organizations 
to avoid negative consequences such as discrimination, forced 
migration, denial of property rights and various civil liberties, 
according to the Deseret News.

In 2004 drug charges were dismissed against him and his wife after 
the Utah Supreme Court ruled that church members, regardless of race, 
can use the hallucinogenic cactus - a natural form of mescaline - 
under a federal exemption incorporated into Utah law.

Besides the peyote exemption for Native American religion, a New 
Mexico church with Brazilian origins prevailed in 2006 at the U.S. 
Supreme Court for the sacramental use of hoasca, a hallucinogen also 
known as ayahuasca, found in the Amazonian rainforest.

But all, or nearly all litigants seeking protection for religious use 
of marijuana have lost, according to Douglas Laycock, who teaches 
constitutional law at the University of Virginia. He said marijuana 
is a huge recreational market and the government's enforcement 
interests would be badly damaged if people could claim they were 
using it religiously.

"Most the cases have been Rastafarians, some of whom claim a 
religious duty to be high all the time, as compared to the very 
tightly controlled use in the Native American peyote service and the 
hoasca service," he stated in an email.

He said the marijuana cases could change as legalization proceeds, 
"but I don't think we're far enough along that path yet to change the 
mind of many judges. Marijuana is still federally illegal, and 
illegal under California law except for medical use."

Matt Pappas, the Long Beach attorney who represents the Oklevueha 
Native American Church, acknowledged in a phone interview that he is 
seeking a groundbreaking court ruling to recognize the sacramental 
use of marijuana by its members.

He said the Religious Freedom Restoration Act passed by Congress in 
1993, which was cited to uphold the use of hoasca by a native church, 
should also exempt Oklevueha members from California's marijuana 
prohibition laws.

In 2000, the church became affiliated with the Huichol tribe, an 
indigenous people of Sonora, Mexico.

The Huichol not only use peyote, but for centuries used a common form 
of hemp called "mariguana or rosa maria (Cannabis sativa) in their 
religious ceremonies," according to the lawsuit.

"There are many of these tribes that used cannabis in their 
traditional ceremonies for years. They use it in spiritual healing 
practices," Pappas said.

"Laws that substantially burden religions are held to a higher 
standard of strict scrutiny," he said, adding that the government has 
to show a compelling reason when it impinges on a 400-year-old 
religious practice that incorporates marijuana.

"The law is too broad if it doesn't provide an exception for those 
religious rights," he said.

Although nationally the church is said to have thousands of members, 
the branch in Kenwood has only a handful of members, according to 
Scott Richard Bates, one of the plaintiffs in the lawsuit and chief 
executive officer of the branch.

"We just opened it and immediately started having trouble. We never 
really got to the point where we were able to start helping people," 
Bates said in an interview.

In August, after the members put up a church sign at the driveway off 
their Lawndale Road location, they were visited by county inspectors 
who insisted they cease operations until they complied with zoning, 
business license and sign ordinances, according to the lawsuit.

Then came the sheriff's raid the next month.

"Our church got wrecked by the planning (department) and the 
sheriff's before we could really become established," Bates said.

He said the purpose of the church "is to feed the hungry and heal the 
sick," and its rituals and ceremonies require many marijuana plants 
to supply edible fresh cannabis, fresh vegetative leaf and flowers.

The church website, nativeamericanchurches.org, indicates membership 
is open to anyone who makes a $200 contribution and agrees to a code 
of ethics and conduct, such as spending time each day in meditation 
and prayer "drawing closer to the Great Spirit and all of creation, 
the two leggeds and the four leggeds."

Bates, 50, who described himself as an unemployed ornamental 
horticulturist, said church members "have to deal with a medicine 
person. We have to judge that they are legitimate. We're not just 
open to every Tom, Dick and Harry who walk in off the street and say 
'give me some weed.' We're a legitimate church."

"If they use sacramental cannabis as part of their meditation, we 
would strive to make their sacrament available," he continued. "If 
they're in need of healing to pursue their paths, then we would try 
to make that healing available to them through our sacraments." It's 
not intended for people to "pick up their sacraments and make some 
donation, like a retail transaction," he insisted. "We're trying to 
be involved in people's lives and help them heal and pursue God in 
their own spiritual path according to their manner of choosing."

In a video posted on You Tube, church founder Mooney said "We're not 
focused on drugs. We're focused on people that have severe damage ... 
what you would go to a psychiatrist for."

Mooney credited peyote with helping him overcome manic depression and 
bipolar disorder.

"We have ceremonies that will cure downright everything," he said in the video.

The civil lawsuit is scheduled for a case management conference March 
2 in U.S. District Court in San Francisco.

News Researcher Janet Balicki contributed to this story.
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MAP posted-by: Jay Bergstrom