The History of the Federal Peyote Exemption
While there was no general discussion of the roles that some of the prohibited entheogens played in ancient and modern religions, a handful of lawmakers did recognize that the nation’s new drug prohibition laws could potentially impact the religious use of peyote by some Native Americans. When the Drug Abuse Control Amendments of 1965 were introduced in the House of Representatives, a provision exempted peyote “insofar as its use is in connection with the ceremonies of a bona fide religious organization.”1 In the Senate, however, this exemption was deleted.
When the bill returned to the House, Representative ______ Harris noted that the Senate had deleted the religious exemption for peyote. Representative Harris informed his colleagues that “the religious groups affected” and “certain civil liberties organizations” had expressed concern of the deletion of the peyote exemption:
Citing Woody, and an unpublished case from the Superior Court in Maricopa County, Arizona,2 Representative Harris argued that failing to legislatively accommodate the religious use of peyote would violate the First Amendment. Representative Harris included in the Congressional Record, a letter he received from the Food and Drug Administration, which stated that the FDA had no intention of forbidding the bona fide religious use of peyote.
In the letter, George P. Larrick, then-Commissioner of the FDA, wrote Representative Harris:
Dear Mr. Chairman: In response to your request we are stating the position the Food and Drug Administration expects to take if H.R. 2 becomes law as it passed the Senate, with respect to the use of peyote in religious ceremonies.
We have been advised by a representative of the North [sic] American Church that this church is a bona fide religious organization and that peyote has bona fide use in the sacrament of the church. The representative has agreed to document both of these statements.
If the church is a bona fide religious organization that makes sacramental use of peyote, then it would be our view that H.R. 2, even without the peyote exemption which appeared in the House-passed version, could not forbid bona fide religious use of peyote. We believe that the constitutional guarantee of religious freedom fully safeguards the rights of the organization and its communicants.
Sincerely yours,
George P. Larrick
Commissioner of Food and Drugs.
With such assurances on the record, the House of Representatives proceeded to pass the Drug Abuse Control Amendments of 1965 as amended by the Senate (i.e., without the religious peyote exemption). A specific exemption for peyote-using members of the Native American Church was later included in the Code of Federal Regulations. The exemption stated:
The listing of peyote in this subparagraph does not apply to non-drug use in bona fide religious ceremonies of the Native American Church; however, persons supplying the product to the Church are required to register and maintain appropriate records of receipts and disbursements of the article.3
What effect drug prohibition laws might have on Native American users or peyote (but not with regard to any other races or religious organizations) was again raised during hearings on the Controlled Substances Act of 1970 (CSA). During one hearing, Representative Satterfield asked Mr. Sonnenreich (a representative from the then-existing Bureau of Narcotics and Dangerous Drugs) whether including peyote in Schedule I of the CSA would impact the Native American Church’s religious use of that cactus. Mr. Sonnenreich responded:
. . . the Native American Church did ask us by letter as to whether or not the regulation exempting them by regulation, would be continued and we assured them that it would because of the history of the church. We are presently involved in another hearing regarding another church that is a non-Indian church that is seeking the exemption and the order is going to be published. I believe, either today or tomorrow denying them the same exemption as the Native American Church.4
We consider the Native American Church to be sui generis. The history and tradition of the church is such that there is no question but that they regard peyote as a deity as it were, and we will continue the exemption.5
A federal regulatory exemption for the religious use of peyote by members of the Native American Church (which remains in effect today) was then adopted. The regulation states:
The listing of peyote as a controlled substance in Schedule I 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 peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law.6
This regulation provided Native American Church members with a defense if charged with violating the federal peyote prohibition. It did nothing to protect them from prosecutions brought under state peyote prohibitions, and it applied only to members the Native American Church. It was not until 1994, with the enactment of the American Indian Religious Freedom Act Amendment, that Native American religious users of peyote gained legal protection in all fifty states and regardless of their church affiliation.7 Non-Indian peyotists, however, remain subject to prosecution under federal law and in all but a handful of states that have enacted non-race/non-denominational statutory exemptions, or which have broad common-law protections.
Notes
1 ____
2 Arizona v. Attakai, №4098, July 26, 1960.
3 Ibid. (31 FR 4679) 21 CFR 166.3 ©(3) (1968).
4 Mr. Sonnenreich was speaking of the administrative hearing regarding the Church of the Awakening’s petition to amend 21 CFR 1307.31. This case will be discussed shortly.
5 Drug Abuse Control Amendments of 1970, Hearings Before the Subcommittee on Public Health & Welfare of the Committee on Interstate and Foreign Commerce, House of Representatives, 91st Cong., 2d Sess. 117–18 (1970).
621 CFR 1307.31. As discussed in more detail in the chapters to follow various federal courts have construed the scope of the exemption differently. (Compare Warner, infra, 595 F.Supp. 595 [Congress intended to exempt religious use of peyote only by NAC members) with, NAC of New York, infra, 468 F.Supp. 1247 [Congress meant to exempt all bona fide religious peyote use regardless of race or denomination].)
7See The American Indian Religious Freedom Act, 1994 Amendment ____ USC ____
