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MONDAY, AUGUST 26, 2002

A federal appeals court on Friday refused to reinstate a discrimination lawsuit involving a self-described medicine man who faces criminal charges for possession of peyote.

But James "Flaming Eagle" Mooney, a controversial Native American Church figure, will still get money for his ordeal. After being fired from his job at the Utah Department of Corrections more than five years ago, he settled for $50,000 in March 2001.

That left Merrilee Petersen, a former prison employee who worked with Mooney, to pursue her claims of bias. She accused a superior of making racial remarks about Mooney, who used to work with Native inmates.

A superior referred to Mooney as a "lazy Indian" and made war whoops and other racial comments, the suit alleged. Petersen says she lost her job for defending Mooney.

But in a unanimous decision, the 10th Circuit Court of Appeals said Petersen failed to provide substantial evidence of retaliation. A three-judge panel affirmed a lower court's dismissal of her suit.

"In short, the record before us is replete with general claims of retaliation but no specifics," Circuit Judge Paul J. Kelly wrote for the majority.

The dispute reaches back to 1997 but Mooney's legal problems are far from over. After being fired from his job as a Native American Career Rehabilitative Specialist at a Utah prison, he ran into trouble for holding Native American Church ceremonies at his home.

Mooney was arrested in October 2000 after state law enforcement authorities were tipped off. About 13,000 buttons of peyote, a hallucinogenic drug, were confiscated from his home.

As founder of the Oklevueha EarthWalks Native American Church, Mooney claims he can possess and distribute peyote. He cites federal law authorizing the practice for church members.

But Utah prosecutors say the law only applies to members of federally recognized tribes. Mooney claims Seminole, Creek, Choctaw and Cherokee descent.

The case is currently before Utah's Supreme Court. A lower state court already ruled against one of Mooney's colleagues, Nicholas Stark, who also calls himself a medicine man.

"Clearly, there is a protection for the use of peyote for Native Americans, but Mr. Stark does not come under that protection," Judge Roger Dutson ruled in May 2001.

Leaders of the Native American Church who are federally recognized often oppose the use of peyote by non-Indians and non-federally recognized Indians. They believe it can lead to abuse and limits to their own rights.

Get the Case:
PETERSEN v. UTAH DEP'T OF CORR., No. 01-4090 (10th Cir. August 22, 2002)

Relevant Links:
Oklevueha EarthWalks Native American Church - http://www.earthwalks.com

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