Current Legal Status Of Peyote And Mescaline

The Comprehensive Drug Abuse Prevention and Control Act of 1970 (also called the Controlled Substances Act) made peyote and mescaline illegal by classifying them as Schedule I controlled substances. Schedule I substances are deemed to have no medical value (see Appendix 1 for further description of controlled substance classifications). This law, however, made the NAC exempt from its restrictions, allowing the use of peyote and mescaline for religious purposes. Specifically, the law allowed "use of peyote in bona fide religious ceremonies of the Native American Church."

There is controversy, though, over what exactly the NAC is. It is not centrally organized, and its leadership and membership are not well defined. Regulations regarding NAC membership vary from state to state; for example, Texas requires someone to be of at least 25 percent Native American heritage in order to participate in an NAC religious ceremony. Many other states may have no such restrictions (see Table 3.1). As a result, a person (Native American or not) can claim to be a member of the NAC and use peyote, asserting his or her right to exercise religious freedom. But there is no guarantee that a person's religious claim is sincere. The use of hallucinogens or other controlled substances during religious ceremonies remains an item of intense debate among state and federal lawmakers in the United States today.

In Texas, peyoteros must be registered with the state government and keep careful records of the quantities of peyote buttons they sell. As of 1996, there were approximately a dozen registered peyoteros in Texas. Each peyotero harvests and sells approximately 200,000 to 300,000 peyote buttons per year. Peyoteros often must seek permission or pay leasing fees to harvest peyote that is grown on private land.

According to the Controlled Substances Act, the punishment for possessing or selling peyote (or synthesizing mescaline with the intent to sell) is up to a $15,000 fine and/or five years in prison for the first offense. However, first offenders, if convicted, often get a more lenient punishment of one year's probation. The second offense is punishable by a fine of up to $30,000 and/or up to 10 years in prison. Only peyoteros and members of the NAC are exempt from this law.

Criteria for allowing use of peyote among the states with peyote laws.

State

Sincere religion intent

With a bona fide religious organization

Within an NAC ceremony

NAC membership required

Native American descent required

On reservations 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

Source: Boire, Richard Glen. "The Legal Root: State by state comparison of peyote statutes." The Entheogen Law Reporter vol. 1, no. 3. Available online at: http://www.peyote.net/archive/law.htm.

Certain states have expanded the right to use peyote beyond what the federal government allows; for example, Arizona exempts from prosecution members of the Peyote Way Church of God and the Peyote Foundation in addition to members of the NAC. Minnesota exempts the American Indian Church, in addition to the NAC. Currently, there are 14 states with their own laws concerning peyote.

Native Americans assert their right to use peyote as part of their religious ceremonies under several laws, including the American Indian Religion Freedom Act of 1978, which bars the government from passing laws that "prohibit the use and possession of sacred objects necessary to the exercise of religious rites and ceremonies." Although this law did not mention peyote specifically, in 1994, the American Indian Religion Freedom Act Amendments were passed, which stated that, "for many Indian people, the traditional ceremonial use of the peyote cactus as a religious sacrament has for centuries been integral to a way of life, and significant in perpetuating Indian tribes and cultures." This act also states that, "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 of transportation..." Despite this freedom, the United States retained its right to impose "reasonable regulation and registration of those persons who cultivate, harvest or distribute peyote." This is the reason that peyoteros must be registered with state governments, such as that of Texas.

For non-Native Americans, smuggling peyote or mescaline into or out of the United States is illegal. Since peyote buttons are relatively large, however, and the demand for them is relatively low, peyote trafficking is not currently a significant problem for the Drug Enforcement Administration.

In recent years, there has been a surge of lawsuits at the local, state, and federal government levels filed by people asserting that their religious freedom guarantees them the right

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  • baillie
    Is the peyote cactus legal?
    3 months ago
  • marco
    Are peyote plants legal?
    4 months ago
  • Linda
    Is mescalin legal in the states?
    1 year ago