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Law
Trust relationship not convincing to Supreme Court


The U.S. Supreme Court refused to block a small religious group from using a hallucinogenic tea in a unanimous decision on Tuesday that included some potentially hostile language about the trust relationship.

By an 8-0 vote, with new Justice Samuel Alito not participating, the court said the Bush administration failed to demonstrate why the sect cannot use the leaves of the hoasca plant in ceremonies. The tea leaves contain an illegal drug known as DMT, a substance that is listed under the same federal law as peyote.

As part of the case, the Department of Justice argued that the federal Indian trust relationship provided a basis to allow members of the Native American Church to use peyote, a hallucinogenic plant, in ceremonies without violating the law. But Chief Justice John G. Roberts, another new arrival on the court, wrote that the political status of tribes can't be used to justify why non-Indians should be excluded from the same religious protections.

"If such use is permitted ... for hundreds of thousands of Native Americans exercising their faith, it is difficult to see how those same findings alone can preclude any consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs," Roberts wrote in reference to the members of the O Centro Espirita Beneficiente Uniao do Vegetal, or UDV.

Roberts said the government "never explains what about that 'unique' relationship" gives the U.S. the right to carve out an exception for Native American Church practitioners. Both peyote and hoasca, listed under Schedule I of the Controlled Substance Act, pose the same health and safety risks, the court reasoned.

"In other words, if any Schedule I substance is in fact always highly dangerous in any amount no matter how used, what about the unique relationship with the tribes justifies allowing their use of peyote?" Roberts asked "Nothing about the unique political status of the tribes makes their members immune from the health risks the government asserts accompany any use of a Schedule I substance, nor insulates the Schedule I substance the tribes use in religious exercise from the alleged risk of diversion."

Members of the Native American Church had protested such a comparison. As the case was going to trial, the Native American Church of North America, the Native American Church of Oklahoma and the Native American Church of the Kiowa Tribe of Oklahoma filed a brief pointing out that UDV practitioners were largely non-Indians who imported a religion from Brazil.

Their brief accused UDV of "badly distorting and misrepresenting" the Native American Church and of ignoring the trust responsibility aspect of the peyote exemption.

Church leaders fear their rights are at risk if exemptions for peyote and other drugs are granted to non-Indians. Some cite a recent case in Utah, where a self-proclaimed medicine man who is not enrolled in any tribe escaped prosecution for possession of peyote.

State lawmakers are now considering amending state law to limit peyote use to members of federally recognized tribes. Meanwhile, federal prosecutors are preparing a case against the medicine man.

It is not immediately clear whether the Supreme Court's decision will have an effect on efforts to protect peyote and Native religious rights. But in another religious freedom case, the 10th Circuit Court of Appeals ruled that terminated Indians who lack a federal relationship with the government can use eagle feathers and parts under the same exception applied to federally recognized Indians.

A majority of 10th Circuit judges also went so far as to suggest non-Indians should be allowed to use eagles for their religious practices, rejecting the same trust relationship argument raised in UDV case. "[T]he government has not shown that broader permit eligibility [for eagle feathers and parts] would damage the government's ability to fulfill its trust obligations," the court wrote in August 2002 in a case that is still pending.

During oral arguments for the UDV, a number of Supreme Court justices had indicated they weren't satisfied with the government's trust relationship defense. "The problem of preferring one religious group over another, it seems to me, arises once there is an exception for the Native American Church," Justice Ruth Bader Ginsburg said on November 1, 2005. "And I heard you say, 'Well, the Indian tribes are special,' but is that -- that's it."

The UDV, based in Santa Fe, New Mexico, had obtained a preliminary injunction to allow continued use of hoasca while the case was proceeding. The Supreme Court upheld the injunction, meaning the case can now go to trial, but given the language in yesterday's decision, is it highly likely the group will win its case.

Supreme Court Decision:
Gonzales v. UDV (February 21, 2006)

Supreme Court Briefs:
Tribal Supreme Court Project

Lower Court Decisions:
En Banc (November 12, 2004) | Panel (September 4, 2003) | Federal Judge (September 12, 2002)

Relevant Links:
Uniao do Vegetal - http://www.udv.org.br
Ayahuasca - http://www.ayahuasca.com