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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. You can reach Staff Writer Clark Mason at 521-5214 or clark.mason@pressdemocrat.com. On Twitter@clarkmas.