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1333
U.S. v. BOYLL
Cite as 774 F.Supp. 133 (D.N.M. 1991)

                UNITED STATES of America, Plaintiff,
                                v.
                 Robert Lawrence BOYLL, Defendant.
                      Crim. No. 90-207-JB.
                   United States District Court,
                          D. New Mexico.
                          Sept. 3, 1991
     Non-Indian member of Native American church was indicted for
importing peyote through mail and possessing it with intent to
distribute.  He moved to dismiss.  The District Court, Burciaga,
Chief Judge, held that: (1) permitting Indians' nondrug use of
peyote in bona fide religious ceremonies of Native American
church, but prohibiting such use by non-Indians, would violate
free exercise and equal protection clauses; (2) compelling
interest test applied to free exercise challenge to prosecution
of non-Indian member, and (3) prosecution would violate free
exercise clause.
     Motions granted.
1.   Drugs and Narcotics 46
     Exemption permitting nondrug use of peyote in bona fide
religious ceremonies of Native American Church applies to all
members regardless of race.  Comprehensive Drug Abuse Prevention
and Control Act of 1970,  202(c), Schedule I(c)(12), as amended,
21 U.S.C.A.  812(c), Schedule I(c)(12); U.S.C.A. Const.Amends.
1, 14.
2.   Constitutional Law  84.5(19), 250.1(1)
     Drugs and Narcotics  46
     Permitting non-drug use of peyote in bona fide religious
ceremonies by Indian members of Native American church, but
prohibiting the same use by non-Indian members, would violate
free exercise and equal protection clauses; such an
interpretation of exemption for nondrug use of peyote would have
effect of imposing racial exclusion to membership in the church
itself.  U.S.C.A. Const.Amends. 1, 14.

1334
774 FEDERAL SUPPLEMENT

3.   Constitutional Law 84.5(19)
     Exemption permitting nondrug use of peyote in bona fide
religious ceremonies of Native American Church is specifically
directed to religious practices, is not neutral or generally
applicable, and, therefore, is not within United States Supreme
Court's Smith decision abandoning free exercise clause's
compelling interest test if the challenged law is neutral and
generally applicable.  U.S.C.A. Const.Amend. 1.
4.   Constitutional Law 84.5(19)
     Drugs and Narcotics 46
     Prohibiting non-Indian member of Native American Church from
importing peyote through mail and possessing it with intent to
distribute would impose substantial burden on free exercise of
religion, was not justified by compelling governmental interest,
and would violate free exercise clause.  U.S.C.A. Const.Amend. 1;
Comprehensive Drug Abuse Prevention and Control Act of 1970, 
202(c), Schedule I(c)(12), as amended, 21 U.S.C.A.  812(c),
Schedule I(c)(12).
     David N. Williams, Asst. U.S. Atty., Albuquerque, N.M., for
plaintiff.
     Peter Schoenburg, Asst. Federal Public Defender,
Albuquerque, N.M., for defendant.
MEMORANDUM OPINION
AND ORDER
     BURCIAGA, Chief Judge.
     THERE is a genius to our Constitution.  Its genius is that
it speaks to the freedoms of the individual.  It is this genius
that brings the present matter before the Court.  More
specifically, this matter concerns a freedom that was a natural
idea whose genesis was in the Plymouth Charter, and finds its
present form in the First Amendment to the United States
Constitution -- the freedom of religion.

     The Government's "war on drugs" has become a wildfire that
threatens to consume those fundamental rights of the individual
deliberately enshrined in our Constitution.  Ironically, as we
celebrate the 200th anniversary of the Bill of Rights, the
tattered Fourth Amendment right to be free from unreasonable
searches and seizures and the now frail Fifth Amendment right
against self-incrimination or deprivation of liberty without due
process have fallen as casualties in this "war on drugs."  It was
naive of this Court to hope that this erosion of constitutional
protections would stop at the Fourth and Fifth Amendments.  But
today, the "war" targets one of the most deeply held fundamental
rights -- the First Amendment right to freely exercise one's
religion.

     To us in the Southwest, this freedom of religion has
singular significance because it affects diverse cultures.  It is
as much of us as the rain on our hair, the wind on the grass, and
the sun on our faces.  It is so naturally a part of us that when
the joy of this beautiful freedom sings in our souls, we find it
hard to conceive that it could ever be imperiled.  Yet, today, in
this land of bright blue skies and yellow grass, of dusty
prairies and beautiful mesas, and vistas of red earth with walls
of weathered rock, eroded by oceans of time, the free spirit of
the individual once again is threatened by the arrogance of
Government.

     The issue presented is the recurring conflict between the
Native American Church members' right to freely exercise their
religion through the ceremonial use of peyote and the
Government's efforts to eradicate illegal drugs.  To the
Government, peyote is a dangerous hallucinogen.  To Robert Boyll,
peyote is both a sacrament and a deity essential to his religion.
But this matter concerns competing interests greater than those
relating to this small, spineless cactus having psychedelic
properties.  It draws forth a troublesome constitutional conflict
which arises from fundamentally different perspectives of peyote.

     In its "war" to free our society of the devastating effects
of drugs, the Government slights its duty to observe the
fundamental freedom of individuals to practice the religion of
their choice, regardless of race.  Simply put, the Court is faced
with the quintessential constitutional conflict between an
inalienable right upon which this

1335
U.S. v. BOYLL
Cite as 774 F.Supp. 1333 (D.N.M. 1991)

country, was founded and the response by the Government to the
swelling political passions of the day.  In this fray, the Court
is compelled to halt this menacing attack on our constitutional
freedoms.

     On May 10, 1990, the Federal Grand Jury indicted Robert
Lawrence Boyll, a non-Native American, for unlawfully importing
through the United States mail and possessing peyote with the
intent to distribute it, in violation of 21 U.S.C.  952(a),
960(b)(3), 843(b) & (c), & 841(a)(1) (1981).  The three-count
indictment arose out of Mr. Boyll mailing himself a quantity of
peyote front Mexico to his home in San Cristobal, New Mexico.

     In his motions to dismiss, Mr. Boyll argues that the
indictment violates his First Amendment right to freely exercise
his religion.  Mr. Boyll also claims that, pursuant to 21 C.F.R.
 1307.31 (1990), the listing of peyote as a controlled substance
does not apply to him because he is a member of the Native
American Church and he imported and possessed peyote for use in
bona fide religious ceremonies of the Native American Church.

     The United States adopts a racially restrictive reading of
21 C.F.R.  1307.31, arguing that the protection contained
therein applies only to members of the Native American Church who
are American Indians.  It claims that Mr. Boyll cannot be a
member of the Native American Church because "membership is
limited to persons who [sic] ethnic descent is at least twenty-
five percent derived from American Indian stock, and to the
spouses of such persons"; that, therefore, Mr. Boyll cannot be a
member of the Native American Church since neither he nor his
spouse is twenty-five percent American Indian.

     The Court held an evidentiary hearing in this matter on
October 18, 1990.  It immediately became apparent that an
examination and understanding of the history and present
structure of the Peyote Religion and the Native American Church,
as well as of 21 C.F.R.  1307.31, is essential to a faithful
resolution of the issues presented by Mr. Boyll's motions.
     The following will constitute the Court's findings of fact
and conclusions of law.
     The peyote plant is a small, spineless cactus having
psychedelic properties and the experience of eating it is central
to the Peyote Religion. [footnote 1]  Unlike traditional
religions which have sacramental symbols such as bread and wine,
peyote is more than a sacrament to members of the Native American
Church.  Peyote is, itself, considered a deity which cannot be
owned by any individual.  Peyote is worshipped and eaten at a
religious ceremony called a peyote meeting.  "Peyote is a sacred
medicine; peyote protects; peyote allows one to see the future,
or to find lost objects; peyote gives power to the user that may
be manifest in various ways; peyote teaches; peyote may be used
by Christians or may be incorporated with Christian ideas; a
pilgrimage to gather peyote plants is viewed as an act of piety
to be undertaken if possible...."  Omer C. Stewart [footnote 2],
Peyote Religion 41 (1987).  It is considered sacrilegious to use
peyote for nonreligious purposes.

     The peyote ceremony is unique and the very cornerstone of
the Peyote Religion.  It is always conducted by individuals who
hold honored posts which have specially assigned duties.  The
leader of the ceremony is called a "roadman."  The roadman is
responsible for initiating the participants, although worshipers
who are not personally invited are usually welcomed as well.
Other officials present at a peyote meeting
--------------------
  [footnote 1]  This Court is mindful that "[i]t is not within
  the judicial ken to question the centrality of particular
  beliefs or practices to a faith, or the validity of
  particular litigants interpretation of those creeds."
  Hernandez v. Commissioner, 490 U.S. 680, 699, 109 S.Ct.
  2136, 2149, 104 L.Ed.2d 766 (1989).
  [footnote 2]  Mr. Omer C. Stewart testified at the
  evidentiary hearing in this case.  He is a distinguished
  scholar of the Peyote Religion.  The Court found his
  testimony invaluable.  Many of the Court's findings of fact
  relating to the Peyote Religion and the Native American
  Church can be attributed to Professor Stewart's testimony
  and his well-known book on the subject which was admitted
  into evidence as Defendant's exhibit 1.

1336
744 FEDERAL SUPPLEMENT

include the chief drummer, who sits on the right of the roadman;
the cedarman, who sits on the left of the roadman and sprinkles
sagebrush "incense" on the fire; and the fireman or doorman, who
tends the fire and sits near the opening of the teepee.  Each
meeting also has a sponsor who is responsible for securing a
site, the roadman, the teepee and other materials necessary for
the service.  Although not all ceremonies of the Native American
Church are identical, the general concepts have been so well
defined, so established in traditional practice, that they have
not changed significantly for nearly a hundred years.  Peyote
Religion at 36, 339-75.  At these peyote meetings, the worshipers
usually gather in a teepee at dusk and the ceremony passes
through a series of ritualistic stages.  During these rituals, a
staff and a rattle are passed around and the person who receives
them leads in singing peyote hymns and prayer.  Around midnight,
peyote is ingested by the worshipers and the singing, praying and
drumming continues throughout the night until dawn.  When the
"buttons" of the plant are eaten, or brewed into tea and imbibed,
the user experiences hallucinations.  The peyote plant produces
"a warm and pleasant euphoria, an agreeable point of view,
relaxation, colorful visual distortions, and a sense of
timelessness that are conducive to the all-night ceremony of the
Native American Church."  Peyote Religion at 3.  Finally, at noon
of the following day, all worshipers share in a ceremonial feast.
See generally Peyote Religion at 327-336 (description of peyote
ritual); T. Hillerman, People of Darkness 153 (1980) (description
of Navajo peyote ritual).

     The Native American Church combines elements of Christianity
with traditional Native American beliefs and the sacramental use
of peyote.  Peyote Religion at 33; Toledo v. Nobel-Sysco, Inc.,
892 F.2d 1481, 1485 (10th Cir.1989), cert. denied, --- U.S. ---,
110 S.Ct. 2208, 109 L.Ed.2d 535 (1990).  Although the religious
use of peyote has existed for centuries, the Peyote Religion's
corporate form, the Native American Church, was established in
Oklahoma in 1918.  At that time, the leaders of the Peyote
Religion reasoned that an "incorporated" church would provide
greater protection from early attempts to suppress the use of
peyote for religious purposes.

     While the Oklahoma Chapter of the Native American Church is
sentimentally referred to as the Mother Church, no single branch
speaks for the numerous branches throughout the United States.
Unlike more traditional churches, the Native American Church is a
non-hierarchical church and has no central organization which
dictates church policy.  The Native American Church consists of a
number of loosely affiliated local chapters.  Each chapter is
responsible for establishing its own charter, if it so chooses.
"Each congregation makes its own rules, just as each meeting is
conducted by its own roadman."  Peyote Religion at 334.
Nevertheless, the teachings of all the Native American Church
chapters are essentially the same.

     "Church" refers to a body of believers and their shared
practices, rather than the existence of a formal structure or a
membership roll.  Membership in the Native American Church
derives from the sincerity of one's beliefs and participation in
its ceremonies.  Historically, the church has been hospitable to
and, in fact, has proselytized non-Indians.  The vast majority of
Native American Church congregations, like most conventional
congregations, maintains an "open door" policy and does not
exclude persons on the basis of their race.  Racial restrictions
to membership have never been a general part of Peyote Religion
or of the Native American Church. See Peyote Religion at 333-34;
State v. Whittingham, 19 Ariz.App. 27, 28, 504 P.2d 950, 951
(1973) (membership to non-Indians is usually not refused), review
denied, 110 Ariz. 279, 517 P.2d 1275, cert. denied, 417 U.S. 946,
94 S.Ct. 3071, 41 L.Ed.2d 667 (1974).  Although one branch of the
Native American Church, the Native American Church of North
America, is known to restrict membership to Native Americans,
most other branches of the Native American Church do not.  As a
result, non-Indian

1337
U.S. v. BOYLL
Cite as 774 F.Supp. 1333 (D.N.M. 1991)

members are accepted within the Native American Church. [footnote
3]

     Since attending his first ceremony of the Native American
Church at Taos, New Mexico, in 1981, Mr. Boyll has been, and
continues to be, an active member of the Native American Church.
In fact, while living in Mill Valley, California, from 1981 until
1989, Mr. Boyll participated in ceremonies of the Native American
Church an average of once every two to three weeks.  Mr.  Boyll
often sponsored these meetings or participated as a drummer,
cedarman or fireman.  He sincerely believes in the teachings and
practices of the Native American Church. [footnote 4]  He has
only used peyote in connection with bona fide religious purposes
and has never been excluded from the Native American Church
because of his non-Indian race.

     In 1989, motivated in part by his commitment to the Native
American Church, Mr. Boyll moved to New Mexico.  He continues his
active participation in meetings of Native American Church
congregations in northern New Mexico and southern Colorado.
During one specific peyote meeting, Mr. Boyll was explicitly
recognized as a member of the Native American Church by
Rutherford Loneman, a well-known roadman who is also a former
Vice-Chairman of the Native American Church in Oklahoma.  Yet,
Mr. Boyll has always considered himself a member of the Native
American Church rather than of a specific branch.

     The act of traveling to the place where peyote is harvested
is considered an act of piety which has its own rewards.  The
long, sacred pilgrimage to harvest peyote is considered to be one
of the most important aboriginal traditions of the Peyote
Religion.  Peyote Religion at 31-32 ("When the [peyote]-seekers
arrive [back] at their homes, the people turn out to welcome the
plants with music, and a festival....").  Peyote is grown only in
northern Mexico and the Rio Grande Valley of southern Texas.
Peyote is not grown anywhere else and its growth area, especially
in the United States, is being considerably depleted.  Peyote
Religion at 334-35.

     Because the peyote fields in Texas are depleted, Mr. Boyll
went on a "pilgrimage" to Mexico to obtain peyote for himself and
members of the congregations with whom he worships.  From Mexico,
Mr. Boy11 mailed the peyote to his post office box in San
Cristobal, New Mexico, to avoid violating Texas law, which
restricts religious possession and use of peyote only to Native
Americans.  See Tex. Health & Safety Code Anno.  481.111 (Vernon
1989).  On April 27, 1990, Mr. Boyll picked up the parcel of
peyote from the post office in San Cristobal, New Mexico.  He was
on his way to deliver the peyote to Tellus Goodmorning, an elder
of the Taos Pueblo and nationally respected roadman, when he was
arrested.

     The Court will first address whether 21 C.F.R.  1307.21
applies to all sincere menders of the Native American Church, in-
--------------------
  [footnote 3]  See Stacy Diven's affidavit (August 17, 1990)
  ("During my fifteen years as a member of the Native American
  Church, I have encountered isolated instances of opposition
  by Indian members of the church to non-Indian participation.
  However, in my experience, most Indian members of the Native
  American Church accept sincere white worshipers willingly");
  John Kimmey's affidavit (August 3, 1990) ("The attempt by
  some members of the Native American Church and by the
  government to restrict membership in the church to Indians
  is foreign to the basic beliefs of many Native American
  Church members in the American Church of God [the Taos, N.M.
  branch] and in other branches of the Native American Church.
  Non-Indians have been and continue to be full, legitimate
  members both of the American Church of God and of other
  branches of the Native American Church."); Alden Naranjo's
  affidavit (August 15, 1990) ("As the son of practicing
  members of the Native American Church, I have been taught
  since early childhood that the door to our church is open to
  all faithful, sincere, and believing persons.  Many
  non-Indians in my experience are and continue to be full
  legitimate members of the Native American Church.  I regard
  any attempt to restrict membership to Indians as misguided").
  [footnote 4]  See Lawrence Boyll's affidavit (August 2, 1990)
  (attesting to his sincere participation in the Native
  American Church); Stacy Diven's affidavit (Aug. 17, 1990)
  (same); Jimmy Reyna's affidavit (Aug. 1, 1990) (same); John
  Kimmey's affidavit (Aug. 3, 1990) (same); Alden Naranjo's
  affidavit (Aug. 15, 1990) (same).

1338
774 FEDERAL SUPPLEMENT

cluding Mr. Boyll, or whether it excludes non-Indian members.
Stated differently, does the federal exemption place a racial
restriction on membership in the Native American Church?
     [1]  As far back as the late 18th century, efforts were
being made to restrict the ceremonial use of peyote.  See Peyote
Religion at 128-147.  However, not until the popularity of
psychedelic drugs in the 1960's did Congress restrict the
possession, consumption and sale of peyote.  See Drug Abuse
Control Amendments of 1965, 79 Stat. 226  3(a).  Thereafter, for
the first time, peyote was classified as a Schedule I controlled
substance.  See Controlled Substance Act of 1970, 21 U.S.C. 
812(c), Schedule I(c)(12).  But Congress never intended to
prohibit the ceremonial use of peyote.  See Kennedy v. Bureau of
Narcotics & Dangerous Drugs, 459 F.2d 415, 419 (9th Cir.1972),
cert. denied, 409 U.S. 1115, 93 S.Ct. 901, 34 L.Ed.2d 699 (1973);
Peyote Way Church of God, Inc. v. Meese, 698 F.Supp. 1342, 1346
(N.D.Tex.1988); Native American Church of New York v. United
States, 468 F.Supp. 1247, 1449-51 (S.D.N.Y.1979), aff'd, 633 F.2d
205 (2d Cir.1980); People v.  Woody, 61 Cal.2d 716, 40 Cal.Rptr.
69, 73-74, 394 P.2d 813, 817-18 (1964).  In implementing
regulations, Congress exempted the religious use of peyote by
members of the Native American Church.  See 11 Cong.Rec. 14608,
15977 (1965); see also Native American Church, 468 F.Supp. at
1249-50; Peyote Way Church of God, lnc. v. Smith, 742 F.2d 193,
197 n. 15 (5th Cir.1984). The Drug Enforcement Administration
regulation relating to the listing of peyote as a controlled
substance provides:
  SPECIAL EXEMPT PERSONS
   1307.31  Native American Church.
     The listing of peyote as a controlled substance
  [under federal law) does not apply to the nondrug
  use of peyote in bona fide religious ceremonies of
  the Native American Church, and members of the
  Native American Church so using peyote are exempt
  from registration.
21 C.F.R.  1307.31.  As many as three states have similar
statutory or judicially crafted exemptions in their drug laws for
the religious use of peyote.  N.M.Stat.Ann.  30-31-6(D)
(Supp.1989); Colo.Rev.Stat.  12-22-317(3) (1990);
Ariz.Rev.Stat.Ann.  13-3402(B)(l)-(3) (1989); Kan.Stat.Ann. 
65-4116(c)(8) (1985); Utah Code Ann.  58-37-3(3) (1986).

     "The language of a regulation or statute is the starting
point for its interpretation."  Dyer v. United States, 832 F.2d
1062, 1066 (9th Cir.1987) (citing Consumer Product Safety Comm'n
v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056,
64 L.Ed.2d 766 (1980)).  "The plain meaning governs unless a
clearly expressed legislative intent is to the contrary."  Id.
"When we find the terms of a statute unambiguous, judicial
inquiry is complete."  Rubin v. United States, 449 U.S. 424, 430,
101 S.Ct. 698, 701-02, 66 L.Ed.2d 633 (1981); see also, e.g.,
Wilson v. Stocker, 819 F.2d 943, 948 (10th Cir.1987).

     The language of 21 C.F.R.  1307.31 is clear, unambiguous
and wholly consistent with the regulation's history and purpose.
The plain language of 21 C.F.R.  1307.31 exempts all worshipers
engaged "in bona fide religious ceremonies of the Native American
Church."  The regulation plainly declares Congress' purpose to
exempt Native American Church members.  Nowhere is it even
suggested that the exemption applies only to Indian members of
the Native American Church.  Had the intent been to exclude non-
Indian members, as the United States argues, the language of the
exemption would have so clearly provided.  Indeed, the federal
peyote exemption makes no reference whatsoever to a racial
exclusion.  Compare 21 C.F.R.  1307-31 & N.M.Stat.Ann. 30-31-
6(D) (Supp.1989) with Tex.Health & Safety Code Anno.  481.111
(Vernon 1989) (including the language "[t]he exemption granted to
members of the Native American Church under this section does not
apply to a member with less than 25 percent Indian Blood").  The
plain language of the federal peyote exemption applies to all
members of the Native American Church, regardless of race.  Cf.
Native American Church, 468

1339
U.S. v. BOYLL
Cite as 774 F.Supp. 1333 (D.N.M. 1991)

F.Supp. at 1251 (rejecting the argument that the exemption should
apply to "Indian" churches alone); Kennedy, 459 F.2d at 416-17
(rejecting the Government's proposed racial reading of the
exemption: "[w]e cannot say that the Government has a lesser or
different interest in protecting the health of Indians than it
has in protecting the health of non-Indians").

     A racially neutral reading of the exemption is consistent
not only with the racially neutral language of the exemption but
also with its legislative history.  During hearings on the
Controlled Substances Act of 1970, a representative of the Bureau
of Narcotics and Dangerous Drugs, presently the Drug Enforcement
Agency, explained the rationale for the special exemption and
assured Congress that the exemption would not be affected by the
new legislation:
  We consider the Native American Church to be sui
  generis.  The history and tradition of the church
  is such that there is no question but that they
  regard peyote as a deity as it were, and we will
  continue the exemption.  (emphasis added).
Native American Church, 468 F.Supp. at 1251 (quoting Drug Abuse
Control Amendments of 1970, Hearing before the Subcommittee on
Public Health & Welfare of the Committee on Interstate and
Foreign Commerce, House of Representatives, 91st Cong., 2d Sess.
117-18 (1970)).  Clearly, the nature and history of the Native
American Church played a significant role in the promulgation of
21 C.F.R.  1307.31.  As the uncontradicted evidence in this case
shows, the history of the Native American Church attests to the
fact that non-Indian worshipers have always been, and continue to
be, active and sincere members of the Native American Church.

     The Government's racially restrictive reading and
application of the exemption reveals a fundamental
misunderstanding of the history and present structure of the
Native American Church.  Indeed, the Drug Enforcement
Administration's own rationale acknowledges that the exemption is
not based on the racial makeup of the Native American Church
membership.  See Olsen v. Drug Enforcement Admin., 878 F.2d 1458,
1465-1468 (D.C.Cir.1989) (final order of the Drug Enforcement
Administration in connection with the exemption makes no mention
of any distinction between Indian and non-Indian members of the
Native American Church).  While there may exist some legitimate
support for the argument that Congress never intended to extend
the exemption to non-Native American Church members, see Peyote
Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210 (5th
Cir.1991); but see Native American Church, 468 F.Supp. at 1249-
51, the plain language of the exemption and the legislative
history clearly support this Court's finding that Congress
intended the exemption to apply to all members of the Native
American Church, Indian and non-Indian alike.

     The Court also finds persuasive Mr. Boyll's argument that to
construe the racially neutral language of the exemption "to
provide only racially discriminatory protection would place the
exemption unnecessarily in direct conflict with the first
amendment."  Such a consequence would, at the very least, violate
the canon of statutory construction that "[f]ederal statutes are
to be construed as to avoid serious doubts of their
constitutionality."  Int'l Ass'n of Machinists v. Street, 367
U.S. 740, 749, 81 S.Ct. 1784, 1789-90, 6 L.Ed.2d 1141 (1961); see
also Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 211,
39 L.Ed. 297 (1895); United States v. Security Industrial Bank,
459 U.S. 70, 78, 103 S.Ct. 407, 412, 74 L.Ed.2d 235 (1982).
"[T]his principle is fully applicable to cases such as the
instant one, in which a ... constitutionally suspect statutory
interpretation is embodied in an administrative regulation."
Rust v. Sullivan, --- U.S. ---, 111 S.Ct. 1759, 1778, 114 L.Ed.2d
233 (1991) (Blackmun, J., dissenting).
     [2]  The Court will next address the constitutional question
of whether the indictment violates Mr. Boyll's First Amendment
right to freely exercise his religion.  It is disingenuous for
the Government to contend that its racially restrictive reading
of 21 C.F.R.  1307.31 -- which would restrict

1340
774 FEDERAL SUPPLEMENT

religious freedom through the imposition of a racial exclusion --
does not give rise to valid constitutional concerns.  Since the
use of peyote by Native American Church members is the very
essence of their religious beliefs, the proposed racially
restrictive reading of 21 C.F.R.  1307.31 would have the sure
effect of imposing a racial exclusion to membership in the Native
American Church itself.  To exclude individuals of a particular
race from being members of a recognized religious faith is
offensive to the very heart of the First Amendment.  See Walz v.
Tax Comm'n of New York, 397 U.S. 664, 668-69, 90 S.Ct. 1409,
1411-12, 25 L.Ed.2d 697 (1970) (the First Amendment's
Establishment Clause ensures that governmental interference with
religion will not be tolerated).  In fact, there can be no more
excessive entanglement of Government with religion than the
Government's attempt to impose a racial restriction to membership
in a religious organization.  The decision as to who can and who
cannot be members of the Native American Church is an internal
church judgment which the First Amendment shields from
governmental interference.  Cf. Paul v. Watchtower Bible & Tract
Society, 819 F.2d 875, 878, n. 1. (9th Cir.) (constitutionally
improper for government to resolve a dispute about religious
doctrine or practices), cert. denied, 484 U.S. 926, 108 S.Ct.
289, 98 L.Ed.2d 249 (1987).  It is one thing for a local branch
of the Native American Church to adopt its own restrictions on
membership, but it is entirely another for the Government to
restrict membership in a religious organization on the basis of
race.  Any such attempt to restrict religious liberties along
racial lines would not only be a contemptuous affront to the
First Amendment guarantee of freedom of religion but also to the
Fourteenth Amendment right to equal justice under the law.

     Applying the above-mentioned canon of statutory
construction, we find that the United States' racially
restrictive reading of 21 C.F.R.  1307.31 does raise the sort of
"grave and doubtful constitutional questions," United States v.
Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 535, 53
L.Ed. 836 (1909), that would lead this Court to assume Congress
did not intend such an interpretation.  Federal Trade Comm'n v.
American Tobacco Co., 264 U.S. 298, 305-307, 44 S.Ct. 336, 337-
338, 68 L.Ed. 696 (1924) (assuming Congress legislates in the
light of constitutional limitations).

     The Free Exercise Clause of the First Amendment provides
that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
of freedom, ... or the right of the people to assemble...."  U.S.
Const.Amend. I.  While the freedom to act upon religious beliefs
is not absolute, "only those interests of the highest order and
those not otherwise served can overbalance legitimate claims to
the free exercise of religion."  Wisconsin v. Yoder, 406 U.S.
205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d 15 (1972).  Traditional
free exercise jurisprudence has long held that in order for
government to substantially burden religiously motivated conduct,
Government must justify such restrictions by a compelling state
interest and use means narrowly tailored to achieve that
interest.  See Hernandez v. Commisioner, 490 U.S. 680, 699, 109
S.Ct. 2136, 2148-49, 104 L.Ed.2d 766 (1989); United States v.
Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055-56, 71 L.Ed.2d
127 (1982); Thomas v. Review Bd. of Indiana Employment Secur.
Div., 450 U.S. 707, 717-19, 101 S.Ct 1425, 1431-32, 67 L.Ed.2d
624 (1981); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790,
1793-94, 10 L.Ed.2d 965 (1963).

     In order for government action to withstand a challenge
under the Free Exercise Clause, the action must satisfy the two-
step analysis of the compelling interest test.  The Court must
first determine whether the Government's action "imposes any
burden on the free exercise of [defendant]'s religion."
Sherbert, 374 U.S. at 403, 83 S.Ct. at 1794.  Then, if such
burden exists, the Court must "consider whether some compelling
state interest ... justifies the substantial infringement of
[defendant]'s First Amendment right."  Id. at 406, 83 S.Ct. at
1795.  "The compelling

1341
U.S. v. BOYLL
Cite as 774 F.Supp. 1333 (D.N.M. 1991)

interest test reflects the First Amendment's mandate of
preserving religious liberty to the fullest extent possible in a
pluralistic society."  Employment Division, Dept. of Human
Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 1613,
108 L.Ed.2d 876 (1990) (O'Connor, J., concurring).
     [3]  Recently, the Supreme Court in Employment Division,
Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110
S.Ct. 1595, 1603, 108 L.Ed.2d 876 (1990) ["Smith"], elected to
abandon the compelling interest test in cases involving a
"neutral, generally applicable [criminal] law," reasoning that
the application of such a statute does not implicate First
Amendment concerns.  Accordingly, without the benefit of any
constitutional scrutiny at all, the Court held that Oregon's
across-the-board prohibition against peyote was constitutional.
     [4]  This Court is convinced that 21 C.F.R.  1307.31 is
"specifically directed to religious practices and therefore not
within the ambit of Smith."  Salvation Army v. Dept. of Community
Affairs of State of New Jersey, 919 F.2d 183, 194, 204 (3d
Cir.1990) (Becker, J., concurring).  The Drug Enforcement Agency
regulation in the present case, unlike the statute in Smith, is
neither neutral nor generally applicable.  Indeed, the plain
language of the exemption speaks directly to "bona fide religious
ceremonies of the Native American Church."  Therefore, this Court
will proceed to apply the traditional compelling interest test.
See Cf. Id. 110 S.Ct. at 1603 ("where the [Government] has in
place a system of individual exemptions, it may not refuse to
extend that system to cases of 'religious hardships' without
compelling reason").

     With respect to the first step of the analysis, it is
uncontradicted that the racially restrictive interpretation of 21
C.F.R.  1307.31 would impose a substantial burden on Mr. Boyll's
free exercise of religion.  On this issue, the Court's findings
of fact and conclusions of law are not very different from those
in Woody, 40 Cal.Rptr. at 72, 74, 394 P.2d at 816, 618, which
concluded:
  An examination of the record as to the nature of
  peyote and its role in the religion practiced by
  defendants as [Indian and non-Indian] members of
  the Native American Church ... compels the
  conclusion that the [racially restrictive]
  prohibition most seriously infringes upon the
  observance of the religion.
     ....
  The record thus establishes that the [indictment
  for] ... the use of peyote results in a virtual
  inhibition of the practice of defendants'
  religion.
Id.  Indian and non-Indian "believers who worship at the Native
American Church cannot freely exercise their religious beliefs
absent the use of peyote."  Whittingham, 19 Ariz.App. at 29, 504
P.2d at 952.  "There is no dispute that [the] criminal
prohibition of peyote places a severe burden on the ability of
[Defendant] to freely exercise [his] religion."  Smith 110 S.Ct.
at 1613 (O'Connor, J., concurring); Peyote Way Church of God, 742
F.2d at 200-01.  Additionally, the Court finds that Mr. Boyll's
trip to Mexico to obtain peyote is an integral part of the Peyote
Religion practiced by the Native American Church.  Such a
substantial infringement necessarily triggers further First
Amendment scrutiny.

     The Court must next "consider whether some compelling
[governmental] interest ... justifies the substantial
infringement of [defendant]'s First Amendment right."  Sherbert,
374 U.S. at 406, 83 S.Ct. at 1795.  While the Court is well aware
that drug abuse is "one of the greatest problems affecting the
health and welfare of our population" and, thus, "one of the most
serious problems confronting our society today," National
Treasury Employees Union v. Von Raab, 489 U.S. 656, 668, 674, 109
S.Ct. 1384, 1392, 1395, 103 L.Ed.2d 685 (1989), this amorphous
problem, without more, cannot justify the serious infringement on
the observance of religion.
     First, the United States has failed to present any evidence
of a compelling interest to justify its actions in the present
case.

1342
774 FEDERAL SUPPLEMENT

"In the absence of evidence, we cannot simply assume that the
psychedelic is so baneful that its use must be prohibited to a
group of [non-Indian] members but poses no equal threat when used
by [Indian] members of the Native American Church."  Peyote Way
Church of God, 742 F.2d at 201.  In fact, in light of the absence
of factual support and the scarcity of legal support for the
United States' opposition to Defendant's motions to dismiss, this
Court cannot help but believe that the present prosecution is, at
best, an overreaction driven by political passions or, at worst,
influenced by religious and racial insensitivity, if not outright
hostility.

     Finally, the existence of 21 C.F.R.  1307.31 itself,
negates the existence of a compelling governmental interest in
prosecuting non-Indian members of the Native American Church for
their religious use of peyote.  Id. ("The exemption granted both
by federal and [state] law to the ritual use of peyote by the
Native American Church tends ... to negate the existence of a
compelling [governmental] interest in the same use of it").
Indeed, the federal exemption explicitly establishes a
governmental interest in preserving the exemption of peyote as a
controlled substance for its ritual use by Indian and non-Indian
members of the Native American Church.  The only compelling
interest in the present case is Congress' considered and
continued conviction that the use of peyote in the Native
American Church is the kind of free exercise of religion the
First Amendment protects.  See, e.g., Native American Church, 468
F.Supp. at 1249-50; Peyote Religion, 128-147.  Finding no
compelling interest to justify the constitutional infringement at
issue, the Court need not reach the often critical question of
balancing two competing interests.

     Congress has articulated an unequivocal federal policy
protecting the right of the Native American Church and its
members to worship, possess and use peyote in bona fide religious
ceremonies.  This policy arises out of our country's recognition
of the importance of individual freedom.  For,
  the right to free religious expression embodies a
  precious heritage of our history.  In a mass society,
  which presses at every point toward conformity, the
  protection of a self-expression, however unique, of
  the individual and the group become ever more
  important.  The varying currents of the subcultures
  that flow into the mainstream of our national life
  give it depth and beauty.
Woody, 40 Cal.Rptr. at 77, 394 P.2d at 821; see also 111
Cong.Rec. 15977 (1965).  The court in Woody eloquently speaks to
the freedom of the individual.

     Individual freedom, whether it be freedom of religion,
expression or association, has been particularly important to
maintaining the culturally diverse character of New Mexico.
Here, we celebrate the right of the individual to revel in the
passions of the spirit.  The survival of this right owes much to
the protection afforded by the First Amendment, which has allowed
New Mexico's distinct cultures to learn mutual respect for each
other's jealously-guarded customs and traditions.  Diversity is
New Mexico's enchantment.

     For the reasons set out in this Memorandum Opinion and
Order, the Court holds that, pursuant to 21 C.F.R.  1307.31
(1990), the classification of peyote as a Schedule I controlled
substance, see 21 U.S.C.  812(c), Schedule I(c)(12), does not
apply to the importation, possession or use of peyote for bona
fide ceremonial use by members of the Native American Church,
regardless of race.
     Wherefore,
     IT IS ORDERED, ADJUDGED AND DECREED that Defendant Robert
Boyll's motions to dismiss the indictment be and hereby are
GRANTED.
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