After Kenwood drug bust, branch of Oklevueha Native American Church seeks court ruling on pot use
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.