The Early Entheogen Cases (1926–1964)
State v. Big Sheep
In 1923, Montana and four other states outlawed possession of the visionary cactus peyote (Lophophora williamsii).1 Three years later, on January 26, 1926, the Montana Supreme Court became the first North American court to issue a published decision in a case involving the religious use of a psychotropic plant.2 The case involved a Crow Indian known by the name of “Big Sheep” who was arrested for possessing peyote while visiting the home of his friend Austin Stray Calf, who lived on the Crow Indian Reservation.
Although Big Sheep was arrested on the Crow Reservation and it was never alleged that he possessed or used peyote off of the reservation, he was charged with violating the Montana law making it a crime for any person “to sell, furnish, or give away, or offer to sell, furnish or give away, or to have in his possession, peyote.”3 If convicted under the state law, Big Sheep faced a maximum fine of $500 and imprisonment in the county jail.
Big Sheep argued that the State of Montana had no jurisdiction over events that occurred on the reservation. In addition, Big Sheep argued that even if the State of Montana did have jurisdiction, he had a constitutional right to possess and use peyote in his religious practices. At that time, questions of jurisdiction over Indians and Indian tribes were a confusing cacophony of rules entwining federal, state, and tribal jurisdiction. The federal government had reversed its own pronouncements on Indian jurisdictional issues numerous times, leaving state courts little guidance on the matter.
Even by 1924, when Big Sheep was arrested, the question of whether the government (state or federal) had jurisdiction over Indians who allegedly committed crimes on Indian reservations remained unresolved. In Big Sheep’s case, the confusion was further exacerbated by the fact that although the Crow Tribe had been around much longer than the State of Montana, the Crow Reservation, which was located within the State of Montana, was not created until 1868, four years after Montana became a state.
Big Sheep was taken before Judge O.F. Goddard of the Big Horn County District Court. Judge Goddard rejected Big Sheep’s argument that the Montana courts had no jurisdiction and, furthermore, Goddard flatly refused to let Big Sheep present a religious defense to the peyote-possession charges. Big Sheep made numerous attempts to prove that he was a long-standing member of the Native American Church. He sought to introduce evidence that members of the Native American Church used peyote “for sacramental purposes only in the worship of God according to their belief and interpretation of the Holy Bible, and according to the dictates of their conscience.”4 Judge Goddard, however, refused to consider such evidence, and at the conclusion of the trial Big Sheep was found guilty of unlawfully possessing peyote and sentenced to a pay a fine of $100.
Big Sheep appealed his conviction and the case was eventually heard by the Montana Supreme Court, which focused almost entirely on trying to unravel the complicated question of whether the state courts had jurisdiction over crimes committed on Indian Reservations. The answer, said the court, depended on whether or not Big Sheep was “an emancipated Indian, clothed in the full panoply of citizenship.” If Big Sheep were an emancipated Indian, then, despite the fact that he only possessed peyote on the Crow Reservation, the State of Montana would have jurisdiction. The court explained: “A white man could not commit the act with impunity there, and neither can Big Sheep [assuming he’s emancipated] simply because he is of Indian blood.”5 Since it was not clear whether or not Big Sheep was an emancipated Indian, the court remanded the case to the trial court for additional hearings.
For the guidance of the trial court, the Montana Supreme Court then went on to briefly examine whether Judge Goddard erred by barring Big Sheep from presenting a religious defense. The Montana Supreme Court explained that if the trial court concluded that it did have jurisdiction over the case, that court would next have to decide, “whether the fact that defendant had peyote in his possession for religious purposes in conformity with his religious belief justified his act.”6
Having thus framed the issues, the Montana Supreme Court let lose a scatterblast of comments all targeted at discouraging religious protection for peyote-using Native Americans. The court began by reciting the religion clause of Montana’s Constitution, disclaiming protection for “practices inconsistent with the good order, peace and safety of the state.”7 The religious guarantee, said the court, was never intended to shield “acts inimical to the peace, good order, and morals of society.”8 Next, the court noted that the Montana Legislature was fully within its powers when it determined that the use of peyote was contrary to the good order, peace and safety of the state, and that ingesting or possessing the cactus — for any reason — should be a crime.9
After noting that Big Sheep had sought to present evidence that the Bible supported religious use of peyote by Native Americans, the Montana Supreme Court then proceeded to conduct its own Biblical exegesis, blind to the fact that it was grossly overstepping its judicial powers. In short shrift, the Montana Supreme Court declared that Big Sheep’s biblical interpretations in support of his religious peyote use were erroneous. The biblical passages that Big Sheep relied on, pontificated the court, did not speak of peyote:
We do not find peyote or any like herb mentioned by Isaiah, or by Saint Paul in his epistle to the Romans, nor does it seem from the language employed that Saint John the Divine has any such in mind. It is true that Isaiah speaks of a root out of a dry ground. There is a slight resemblance here, as peyote is said to be a product of the cactus plant. The fourteenth chapter of Romans is a lesson concerning brotherly charity. It teaches that men should not condemn one the other, but take heed that they give no offense. Second verse:
For one believeth that he may eat all things; another, who is weak, eateth herbs.
Third verse:
Let not him that eateth despise him that eateth not; and let not him which eateth not judge him that eateth10.
While pharisaically remarking that that these biblical precepts were “worthy of much greater observation than they receive,” the court expressed concern that if the passages were read to sanction the religious use of peyote, they would countenance all sorts of drug abuse under the pretense of religion. The court explained: “If [the biblical passages were] carried to the length defendant insists upon, the use of opium, cocaine, and even ‘moonshine’ might be justified under the guise of religious observance.”11 As we will see in many of the entheogen cases that followed in the decades after the decision in Big Sheep, the “slippery slope” fear expressed by the Montana Supreme Court — that sanctioning one defendant’s religious use of a controlled substance would inexorably lead to widespread nonreligious drug abuse — would be echoed in many entheogen cases.
Before closing its opinion in Big Sheep, the Montana Supreme Court emphasized that the religious protections of the First Amendment are not absolute. Citing a famous US Supreme Court case12 in which a Morman man sought an exemption from state laws criminalizing polygamy, the Montana Supreme Court distinguished religious belief from religious actions; “…while laws cannot interfere with mere religious belief and opinions, they may inhibit acts or practices which tend toward the subversion of the civil government, or which are made criminal by the law of the land.”13 Thus, the Montana Supreme Court ruled that Judge Goddard was correct when he refused to consider Big Sheep’s religious defense. Big Sheep was free to believe that ingesting peyote was necessary for his worship, but taking any action in that regard would be considered a criminal offense.
NOTES
1 In addition to Montana, Arizona, Kansas, North Dakota and South Dakota outlawed possession of peyote in 1923. (See Stewart 1987).
2State v. Big Sheep (Mont. 1926) 243 P. 1067.
3Chapter 22, Montana Session Laws 1923, p.40.
4Id. at p. 1068.
5Id. at p. 1072.
6Ibid.
7 The judge quoted Section 4 of Article III of the Montana Constitution, which at that time provided the following guarantees for religious freedom:
The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed, and no person shall be denied any civil or political right or privileged on account of his opinions concerning religion, but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, by bigamous or polygamous marriage, or otherwise, justify practices inconsistent with the good order, peace, or safety of the state, or opposed to the civil authority thereof, or of the United States. No person shall be required to attend any place of worship or support any ministry, religious sect, or denomination, against his consent; nor shall any preference be given by law to any religious denomination or mode of worship.
8Id. at p. 1073.
9Ibid.
10Ibid.
11Ibid.
12Reynolds v. United States (1878) 98 U.S. 145.
13Ibid.
