Peyote case unlikely to hit D.C.

PROVO — James "Flaming Eagle" Mooney's fight to give peyote to non-American Indians may reach the U.S. Supreme Court, but it's not likely.

The Utah Attorney General's Office is considering whether it should ask the nation's highest court to hear Mooney's case, which was recently dismissed by the Utah Supreme Court.

The court ruled last month that Mooney could give peyote, a mind-altering drug, to members of his church regardless of race, contradicting a 1994 federal law that made peyote use legal only among members of federally recognized American Indian tribes.

Utah's Attorney General's Office has 90 days from the date of the ruling to ask the U.S. Supreme Court to hear the case.

No decision has been made on whether the case will be sent to the Supreme Court for review, said Fred Voros, chief of appeals for the attorney general's office.

"The odds-on bet is it's not going to the Supreme Court," said Dave Wayment, a deputy Utah County Attorney who first prosecuted the case. "The Supreme Court is asked to hear about 8,000 cases a year, and they only hear about 2 percent of those."

If the case does not go to the Supreme Court, it will return to Provo's 4th District Court, but Wayment isn't sure he would try to prosecute Mooney again. He would have to show that Mooney's distribution of peyote was not for a bona fide religious use.

"It would be difficult to prove," he said. "It would be an uphill battle."

Wayment said he could call witnesses from the Native American Church who would decry Mooney's acceptance of money for peyote, but he said the defense could call NAC members who see nothing wrong with charging money for peyote ceremonies.

Mooney said he never charged for his religious ceremonies and only made a suggested donation of $200 per ceremony after he had been repeatedly pressed by his followers to do so. He said he will never again ask for money for peyote.

"The Great Spirit will take care of me," he said. "I never asked for (money), they just gave it."

Mooney said he will wait for the courts to make a definitive ruling before he again distributes peyote, which is considered a hallucinogenic drug by the Drug Enforcement Administration but a sacrament by the Native American Church.

"It makes no difference to me if it goes to the U.S. Supreme Court," Mooney said. "But if it did, and the court ruled in our favor, no state in the union will ever question the integrity of our ceremonies."

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