Ninth Circuit Rejects RFRA Money Claims in Hawaii-Based Native American Church Case Involving Marijuana

Here are the materials in today’s opinion in Oklevueha Native American Church v. Holder:

Oklevueha Opening Brief

US Appellee Brief

Oklevueha Reply Brief

CA9 Opinion

Lower court materials here.

This entry was posted in Author: Matthew L.M. Fletcher, Criminal, cultural resources, Research and tagged , , , . Bookmark the permalink.

10 Responses to Ninth Circuit Rejects RFRA Money Claims in Hawaii-Based Native American Church Case Involving Marijuana

  1. Blue Hawk says:

    Native American Church of North America does not include marijana or canabis under its charter and federal statutes (peyote exemption), which are illegal to use and possess for all people. Thus, NAC of Hawaii is either bogus or is a separate religions organization that should not come under NAC of N. America since it could jeopardize the religious use of peyote. There is .

  2. One of the founders of Oklevueha Native American Church (ONAC) at one time was the vice president of the Salt Lake City Branch of the Native American Church of North America
    (NACNA). Because of the racial discrimation, of only allowing federally recognized American Native People into its ceremonies, policy of NACNA was the determining factor in incorporating ONAC, with Lakota Sioux President Leslie Fool Bull of the Rosebud Reservation Native American Church blessing.

  3. Blue Hawk says:

    The Native American Church (NAC) within the U.S. is granted a federal peyote exemption under 21 C.F.R. part §1307.31 (4-1-08). This statute is exclusively limited to peyote and does not mention anywhere marijuana or cannabis. See also Religious Freedom Restoration Act (RFRA), 42 USC §200066 and American Indian Religious Freedom Act (AIRFA), 25 U.S.C. §1996(a)-(d). RFRA & AIRFA also do not mention the religious use of marijuana. I do not know of any NAC road chief within the U.S. and Canada who uses marijuana religiously or simultaneously with peyote. Furthermore, the Mexican Indians such as the Huichol do not use marijuana religiously. The Jamaicans and Africans do use marijuana religiously within the Rastafarian religion. The majority of French Polynesian Islands throughout the Pacific Ocean have outlawed marijuana.

    • Blue Hawk, living and being associated with the Huichole culture and their Elders for more than 20 years, I know for a fact that the Huichole do use cannabis for religious purposes. Also, the Native American Church, is the only indigenous American Native Culture organization, that is accepted by the United States Government as an Earth Based Healing Religion.

      This unique legal distinction of the Native American Church states very clearly through the state of Utah Supreme Court, 10th federal circuit court of appeals and the United States Supreme Court ruling’s, ‘all’ cactuses, plants, herbs, mushrooms and etc. grown by mother earth are all considered sacred and are utilized as Sacraments within the confines of the Native American Church.

      This Ninth Circuit Court of appeals is simply another federal court ruling that substantiate three other higher court ruling proceeding this particular order.

      • Blue Hawk says:

        The Federal peyote exemption statute specifically states: § 1307.31 Native American Church. “The listing of peyote as a controlled substance in Schedule I 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. Any person who manufactures peyote for or distributes peyote to the Native American Church, however, is required to obtain registration annually and to comply with all other requirements of law.” 21 CFR §1307.31. This federal CFR statute is the foundations of the NAC’s legal use of peyote for religious purposes. Nothing within this law mentions the religious use of “cannabis sativa L.” or “marijuana.” Indeed marijuana is a Schedule I controlled substance act (CSA) under federal law, 21 USC §802 (16) and 21 USC §812 ( C)(10). Although various western states law have enacted exemptions for marijuana medical use, marijuana remains illegal under federal law and the CSA could void state law exemptions under the supremacy clause of the U.S. Constitution. State and federal case law concerning Native American Church cases of the past hundred years within the United States do not mention or make no reference to the religious use of marijuana or cannabis sativa L. within NAC. See Native American Church of Navajoland, Inc. v. Arizona Corp. Comm., 405 U.S. 901, 92 S. Ct. 934, 30 L. Ed. 2d 775 (U.S. 1972); Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 879, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (U.S. 1990); Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); Toldeo v. Nobel-Sysco, Inc., 651 F. Supp. 483 (D.N.M. 1986); United States v. Boyll, No. 91-2235, LEXSEE 1992 U.S. App. LEXIS 14537 (10th Cir. June 16, 1992); Warner v. Graham, 845 F.2d 179, 46 Empl. Prac. Dec. (CCH) P38,000 (8th Cir. 1988); United States v. Boyll, 774 F. Supp. 133 (1991); Peyote Way Church of God v. Smith, 556 F. Supp. 632 (D. Tex. 1983); Peyote Way Church of God v. Thorngood, 922 F.2d 1210 (5th Cir. 1991); Native American Church of New York v. United States, 468 F. Supp. 1247 (S.D.N.Y. 1979); State v. Whittingham, 504 P.2d 950, 19 Ariz. App. 27 (Ariz. Ct. App. 1973); People v. Woody, 61 Ca.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (Cal. 1964); Utah v. James Mooney, 2004 UT 49, 98 P.3d 420 (Utah 2004); Whitehorn v. State, 1877 OK CR 65, 561 P.2d 539 (Okla. Crim. App. 1977); Arizona v. Attakai, Criminal No. 4098, Coconino County (July 26, 1960); and State v. Big Sheep, 75 Mont. 219, 243 P. 1067 (Mont. 1926). None of these cases mention marijuana being used religiously within the Native American Church. The only NAC cases mentioning marijuana being used in NAC are the Mooney cases. See Okleveha NAC of Hawaii v. Holder, No. 10-17687 (9th Cir. April 9, 2012).

      • Blue Hawk,

        In 1876 within the Dawes Act concerning the Rosebud Reservation of South Dakota, then President Grant signed into law that the Indigenous American Native Culture is an earth based healing religion. Thus when the first Native American Church was incorporated in 1918, it ushered in a protective umbrella, under the first amendment for the entire indigenous American Native Culture belief system that honors all plants, cactus, herbs and etc. in its use as a Sacrament for the Native American Church.

        Prior to 1918 the influences upon the Bureau of Indian Affairs have done everything under the son to brain wash the American Citizenship that one, the Native American Church ‘only’ allows Reservation American Native Members to worship in its Sacred Circles (Totally and completely against the principles of the first amendment of the bill of rights) and attempted to distort the fact that the incorporation (1918) of the Native American Church was not just about utilizing Peyote in its religious services but gave constitutional protection for ‘all’ indigenous American Native Cultures ceremonies and practices.

        With this understanding it is not difficult to know the reasoning for UDV and ONAC of Hawaii federal court systems successes.

        All elements under Grandfather Sky that surrounds Grandmother Earth are sacred, including cannabis.

  4. Blue Hawk says:

    A majority of American Indian tribal laws include statutes specifically prohibiting the possession, manufacturing, cultivation, distribution, selling, and using of marijuana within their jurisdictions. For example, the Crow Tribe’s Criminal Code specifically states –“8B-9-102. Criminal possession of dangerous drugs. (1) A person commits the offense of criminal possession of dangerous drugs if he/she possesses any dangerous drug. (2) Ultimate users and practitioners and agents under their supervision acting in the course of a professional practice, are exempt from this section. (3) (a) A first conviction of criminal possession of marijuana or its derivatives in an amount the aggregate weight of which does not exceed 60 grams of marijuana or 1 gram of hashish is a Class C offense for which the offender shall be imprisoned in the Crow Tribal Jail for any term not to exceed 6 months or be fined an amount not to exceed $500.00 payable to the Crow Tribal Court, or both. “ The Eastern Shoshone and Northern Arapaho Tribal Code of Tribal Offenses states — “Section 7-4-5 Drugs – Unlawful Sale or Delivery, (1) No person shall knowingly or intentionally sell, barter, give away, or deliver a controlled substance to another unless acting as a licensed practitioner in the course of his professional practice. (2) As used in this Section: . . . (c) “Marijuana” includes all parts of the plant, cannabis sativa L., whether growing or not, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil, or cake made from the seeds of such plant, or any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, fiber, oil, or cake except the resin extracted therefrom“ (Amended 9-1-03). See other examples – Bay Mills Indian Community Law and Order Tribal Code, Dangerous Drug Offenses, Section 540; Confederate Salish and Kootenai Tribe Law and Order Code, 2-1-1401, Drug Violations; Cheyenne-Arapaho Tribes of Oklahoma, Law & Order Code, Section 540(b) and (f) – Dangerous Drug Offenses; Tohono O’Odham Nation Tribal Code, Section 13.1, Unlawful Possession of Marijuana (less than 1 ½ Oz.) through 13.3; Navajo Nation Criminal Code, 10 NNC §391, Possession of Marijuana; Colorado Indian Tribes Law & Order Code, 354(a)(1) – Possession or Furnishing of Narcotics; White Mountain Apache Tribe Criminal Code, Section 2.56 – Possession of Marijuana; Siletz Tribal Code, §12.145(e) and Assiniboine and Sioux Tribal Code, Section 413, Unlawful Sale of Dangerous Drugs. None of these tribes provide an exemption for the religious use of marijuana. Some of the tribes have enacted their own tribal peyote exemptions for their own people and jurisdictions. See Cheyenne-Arapaho Tribes of Oklahoma Tribal Law & Order Code, Sec. 540 (f); Yankton Sioux Tribal Code, Sec. 3-34-3; and Navajo Nation Criminal Code, 10 N.N.C. §395(C)(2005).

    • Blue Hawk,

      With the institution of the United States Constitution, even with the Iroquois Nations Great Council “League of Peace and Power” – Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora (Hemp gatherers) advisement, of May 14, 1787, started three atrocities perpetrated upon the indigenous American Native Culture, sponsored by the United States Government.
      The first United States atrocity policy was the extermination order to kill every American Native person, “The only good Indian I ever saw were dead” United States General Philip Sheridan. This policy over a period of time instigated bounties paid out by different government agencies, raging from $2.00 to $200 for the severed heads of American Native People. The last United States Governments sanctioned murder of American Native people was December 30, 1890, known as the Wounded Knee Massacre.
      Knowing that the reservation system was actually a prison system to incarcerate all American Indians. And understanding that any Indian that was not imprisoned on a reservation was considered to be a war criminal, gives an understanding why an entire culture became fearful to admit that their heritage was based with the American Native Culture.
      “After the end of the Indian Wars, in the late 19th and early 20th centuries, the government outlawed the practice of traditional religious ceremonies” on Indian Reservations. With this unethical judicial policy the United States Indian School system was devised to condition American Native Children to be ashamed and reject their American Native Culture. Because of the tenacious behavior of the American Native Spiritual Leaders, on and off Indian reservations, to maintain their indigenous beliefs and traditions, the Bureau of Indian Affairs (BIA) submitted a law, in an attempt to outlawing the practicing of any and all American Native ceremonies (Culture), to the Congress of the United States in 1918.
      In front of congress my Great Grandfather James Mooney, Smithsonian Institute Ethnologist argued successfully against this proposed law. However he knew this laws defeat would not stop the ‘influences’ of the BIA from renewing their efforts to exterminate the entire indigenous American Native Culture. Knowing that the reservation system were sovereign nations and / or prisons, that disqualified them from receiving constitution rights and privileges, guaranteed by the United States Constitution. He rightfully surmised that the only way to save the entire American Native Culture from being exterminated, the Native American Culture needed to be incorporated as a religion and or church, this enabling it to receive its rights to exist and receive protection under the First Amendment of the Bill of Rights. Thus the founding of the first Native American Church (NAC) was incorporated in 1918, in which James Mooney wrote the By-Laws for this NAC.
      Since 1918 there has been a conspiracy perpetrated by the controlling factors working through the Bureau of Indian Affairs and involving the entire United States Judicial System to deny or limit the American Native Culture (Native American Church) of receiving its constitutional rights and privileges.
      The War on Drugs is in reality a War on the Indigenous American Native Culture.

      http://www.nativeamericanchurches.org/onaccomplaint-endraciestwar

  5. Pingback: Federal Court Dismisses Most Claims by Oklevueha Native American Church re: Cannabis | Turtle Talk

  6. Pingback: Ninth Circuit Briefs in Oklevueha Native American Church v. Holder | Turtle Talk

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