PEYOTE WAY CHURCH OF GOD, INC. v. WILLIAM F. SMITH, ATTORNEY GENERAL OF THE UNITED
STATES, and JIM MATTOX, ATTORNEY GENERAL OF THE STATE OF TEXAS
No. CA 3-82-0778-C
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS DIVISION
556 F. Supp. 632
February 7, 1983
COUNSEL: Richard A. Allen & Raymond E. White, American Civil
Liberties Union, Dallas Chapter, Dallas, Texas, for Plaintiff.
John T. Bannon, Jr., (for Wm. F. Smith), General Litigation & Legal Advice Section,
Criminal Division, Dept. of Justice, Washington, District of Columbia, James A.
Rolfe, U.S. Attorney, Paula Mastropieri-Billingsley, Assistant, Dallas, Texas, for
William F. Smith.
Jim Mattox, Attorney General of Texas, Gilbert J. Pena, Chief, Enforcement Section,
Douglas M. Becker, Assistant, Leslie A. Benitez, Assistant, Austin, Texas, for Jim
Mattox.
James G. Abourezk, Attorney General of Navajo Nation, Lawrence A. Aschenbrenner,
Deputy, Elizabeth Bernstein, Staff Attorney, Dept. of Justice of the Navajo Nation,
Window Rock, Arizona, for Amicus Curiae.
JUDGES: Taylor, District Judge.
OPINION BY: TAYLOR
OPINION
[*633] Plaintiff is an Arizona non-profit religious organization
with its headquarters in Arizona. It has sued on its own behalf and on behalf of
its members to have Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.11(a), 4.032, 4.042
& 4.051 (Vernon 1976 & Supp. 1982, 21 U.S.C. §§ 841 & 844 (1976) and
21 C.F.R. § 1307.31 (1981) declared unconstitutional under, variously, 42 U.S.C.
§ 1983, the First, Fifth and Fourteenth Amendments to the United States Constitution
and Article 1, § 3 of the Texas Constitution. Also, a preliminary and permanent
injunction is sought to vindicate the alleged deprivation of Plaintiff and its members
rights under 42 U.S.C. §§ 1981 & 1983 (1976) the First, Fifth, Ninth and Fourteenth
Amendments to the United States Constitution and Article 1, § 6 of the Texas Constitution.
[Footnote 1] Essentially, Plaintiff wants to have the right to possess and use peyote
buttons as part of the sacraments which is presently illegal under both Texas and
Federal law except for members of the Native American Church. [Footnote 2]
Defendant Smith is charged with the enforcement of the Federal drug laws in Part
E of Chapter 13 of Title 21 of the United States Code, 21 U.S.C. § 871 et seq. So
he is the logical federal defendant.
Art. 4476-15, Tex.Rev.Civ.Stat.Ann. (Vernon 1976 & Supp. 1982), the Texas Controlled
Substances Act, does not give similar powers and responsibilities to Defendant Mattox
but to the Commissioner of Health of the Texas Department of Health and the Director
of the Texas Department of Public Safety. A perusal of the Texas statutes does not
show that the Attorney General of the State of Texas has any control over any law
enforcement agency of the State or any of its political subdivisions or over the
[*634] County and District Attorneys of the 254 counties of Texas.
But as he is the chief legal officer of the State of Texas, his defense of the questioned
Texas statutes is vigorous and he has raised no question as to his being a proper
defendant in this civil action, we find that there is sufficient case or controversy
between Plaintiff and Defendant Mattox, leaving the question of ripeness as raised
by him aside for the moment, for this Court to have jurisdiction over these parties.
The Defendants have moved for dismissal and summary judgment. These motions are
ripe for decision. Also, a hearing on the Motion for Preliminary Injunction has
been had and is ripe for decision, if the motions of the Defendants are not granted.
Abstention
Defendant Mattox has moved for the Court to abstain under the doctrine of Younger
v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971). That doctrine
states, in short, that federal courts should not interfere with ongoing state criminal
proceedings.
Plaintiff's attorneys have apprised the Court that subsequent to the hearing on
the Motions on December 1 and 2, 1982, they were informed that a member of Plaintiff
was arrested in Webb County, Texas for possession of peyote on November 19, 1982.
No evidence has been adduced as to this incident but there does not seem to be any
dispute between the Parties as to whether Plaintiff's member was arrested for possession
of peyote.
The question is whether this arrest is sufficient cause for this Court to abstain.
The guiding case is Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281, 45
L. Ed. 2d 223 (1974). The Supreme Court said in that case, at page 349, ".
. . we now hold that where state criminal proceedings are begun against the federal
plaintiffs after the federal complaint is filed but before any proceedings of substance
on the merits have been taken place in the federal court, the principles of Younger
v. Harris should apply in full force." [Footnote 3] The complaint
in this civil action was filed on May 20, 1982, a date anterior to the member's
arrest.
Defendant Mattox contends that the arrest of the member was the start of a state
criminal proceeding. It is true that the Texas Speedy Trial Act specifies in the
pertinent part of Vernon's Ann.C.C.P. art. 32A.02:
[A] criminal action commences for purposes of this article when an indictment, information
or complaint against the defendant is filed in court, unless prior to the filing
the defendant is either detained in custody or released on bail or personal bond
to answer for the same offense arising out of the same transaction in which event
the criminal action commences when he is arrested.
As to that member, undoubtedly Younger v. Harris would be of great force.
But that is not necessarily so as to Plaintiff.
Plaintiff has a ranch in Arizona which is the home of the Church. Only five members
of Plaintiff reside there. The remaining, non-resident members are scattered to
the four winds. The arrested member is one of the non-resident members. The lack
of control over and even of communication with the non-resident members is best
shown by the lack of knowledge of the arrest on the part of Plaintiff's officers
and counsel from November 19, 1982 until the end of the hearing in this Court on
December 1 and 2, 1982.
Also no evidence has been brought forth showing exactly the posture of that Texas
criminal proceeding.
The arrested member is said to be a white male. This is important in that Plaintiff,
among other things, is making separate claims for its members who have no Indian
blood and for those who have Indian blood [*635] but less than
25%. [Footnote 4] The Fifth Circuit said in Morial v. Judiciary Com'n. of State
of La., 565 F.2d 295, 297 (1977), cert. den. 435 U.S. 1013, 56
L. Ed. 2d 395, 98 S. Ct. 1887:
. . . Younger dismissal is called for only in those circumstances where
successful defense of a state enforcement proceeding, initiated before substantial
federal proceedings on the merits had occurred, would fully vindicate the federal
plaintiff's federal right.
It has not been shown that Plaintiff would have an opportunity to fully vindicate
its rights in whatever the state criminal proceedings that may be had against the
Plaintiff's non-resident member.
The provisions of this Act relating to the possession and distribution of peyote
shall not apply to the use of peyote by members of the Native American Church in
bona fide religious ceremonies of the church. However, persons who supply the substance
to the church are required to register and maintain appropriate records of receipts
and disbursements in accordance with rules promulgated by the director. The 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 comparable Federal exemption is stated in 21 C.F.R. § 1307.31 as:
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.
The testimony at trial by a distinguished member of the Native American Church is
that a person must have 25% Indian blood to be a member of the Native American Church.
Also, abstention in this case as to the Texas defendant would not terminate this
proceeding. Assuming ripeness and standing which will be discussed below, a decision
on the merits would still have to be made as to the Federal defendant. For our purposes,
the state and federal laws are the same, they both make possession and use of peyote
illegal with an exemption for use in Native American Church ceremony (and other
non-germane exemptions of a medical nature). Surely, the analysis of Plaintiff's
federal rights vis-a-vis one set of laws will be the same as vis-a-vis the other
statute. No judicial economy could be had by dismissing Defendant Mattox and going
forward with Defendant Smith.
Ripeness and Standing
Both Defendants have moved for summary judgment on the ground that Plaintiff has
not presented a ripe controversy so as to have standing to challenge the constitutionality
of the state and federal drug laws on their face and as applied to Plaintiff and
its members.
The reason that the Texas laws, not Arizona laws, are being challenged in this suit
is that the only major source of peyote in this country is in Texas. So Plaintiff's
members, if they are to obtain peyote domestically, must come to Texas to purchase
it.
The Supreme Court announced in Steffel v. Thompson, 415 U.S. 452, 39 L.
Ed. 2d 505, 94 S. Ct. 1209 (1974), that potential defendants need not expose themselves
to arrest in order to challenge the constitutionality of a criminal statute. In
our Fifth Circuit, the case of Intern. Soc. For Krishna Consciousness v. Eaves,
601 F.2d 809 (1979), is an exhaustive explication on standing or justiciability
as they relate to anticipatory challenges to the constitutionality of statutes,
the Fifth Circuit set out at p. 819 of that opinion a short statement of the applicable
test, which reads:
When we decide whether a case or controversy exists, then, we must focus on the
plaintiff's interest in "engag[ing] in a course of conduct, arguably affected
with a constitutional interest, but proscribed by a statute." Babbitt v. UFW,
442 U.S. 289, 298, 99 S. Ct. 2301, 60 L. Ed. 2d 895 (1979).
Both of the officers of Plaintiff who testified at the preliminary injunction hearing
[*636] stated that the use of peyote is central to their religion.
Moreover, they stated that Plaintiff had some 200 peyote buttons on hand at that
time at the Plaintiff's site in Arizona and that peyote was used on a regular basis
by them and their fellow members there at that site.
One of the two officers has no Indian blood so he most certainly cannot avail himself
of the exemptions accorded members of the Native American Church. The other officer
is 50% American Indian so he could possibly avail himself of those exemptions. But
he, personally, as an officer and as the founder of Plaintiff expressed concern
that his grandson who lives at Plaintiff's site in Arizona would not be covered
by the state and federal exemptions as the grandson is only 12 1/2% American Indian.
[Footnote 5]
Plaintiff's testifying non-Indian officer along with two other members of Plaintiff
were arrested here in Dallas County, Texas for possession of peyote in November,
1980 while on a trip to South Texas to obtain peyote. Since then, Plaintiff's members
have attempted to grow or purchase peyote in Arizona but have found these to be
unsatisfactory sources of supply.
It is apparent that Plaintiff and its members do meet the first and third parts
of the Fifth Circuit's test.
As to an "arguably affected . . . constitutional interest," Plaintiff's
members' possession and use of peyote is in their religious sacraments. There was
considerable testimony at the preliminary injunction hearing as to just how peyote
is used in Plaintiff's sacraments. So Plaintiff has raised serious allegations as
to its members' religious rights guaranteed by the First and Fourteenth Amendments
to the United States Constitution.
Preliminary Injunction
A plaintiff must make four showings in order to obtain a preliminary injunction
in this Circuit as set down in Canal Authority of the State of Florida v. Callaway,
489 F.2d 567 (5th Cir. 1974). Those four showings are:
1. a substantial likelihood the plaintiff will prevail on the merits,
2. a substantial threat that plaintiff will suffer irreparable injury if the injunction
is not granted,
3. that the threatened injury to plaintiff outweighs the threatened harm the injunction
may do to defendant, and
4. that granting the preliminary injunction will not disserve the public interest.
It is quite apparent that showings 2, 3 and 4 are conditioned upon a ruling favorable
to a plaintiff on number 1. Also, it appears to be true that a showing of substantial
likelihood by a plaintiff in a fundamental freedoms case will leave little to be
discussed as to the three other showings. In any event, any discussion of numbers
2, 3 and 4 will be omitted because of the Court's view of Plaintiff's likelihood
of prevailing on the merits.
Plaintiff makes two arguments on the merits. First, it says that its Free Exercise
Clause of the First Amendment's rights as applied to the pertinent federal statutes
and regulations and as applied through the Fourteenth Amendment to the state statutes
free him from the strictures of those respective statutes. Second, Plaintiff says
that the Establishment Clause of the First Amendment, applicable to the federal
government and to the state government through the Fourteenth Amendment, are violated
by the respective exemptions accorded the Native American Church. As the other side
of this argument, Plaintiff sees that its members' equal protection rights have
been violated under the Fifth and Fourteenth Amendments by not being accorded the
same exemption.
Plaintiff's first contention has been rejected by the Fifth Circuit in Leary v. United States,
383 F.2d 851 (1967), rev'd on other grounds, 395 U.S. 6, 23 L. Ed. 2d 57,
89 S. Ct. 1532 [*637] (1969). The Fifth Circuit reaffirmed this
decision in United States v. Spears, 443 F.2d 895 (1971), cert. den.
404 U.S. 1020, 30 L. Ed. 2d 669, 92 S. Ct. 693. [Footnote 6]
Leary's other contention that the federal exemption for the Native American Church
amounted to religious discrimination is partially or even to a great extent based
on two California Supreme Court cases,
People v. Woody, 61 Cal 2d 716, 40 Cal. Rptr. 69, 394 P.2d 813 (1964) and
In Re Grady,
61 Cal 2d 887, 39 Cal. Rptr. 912, 394 P.2d 728 (1964). Plaintiff, here, also relies
heavily on these two cases.
The Fifth Circuit declined in
Leary to follow the ruling of these two cases. But that declination
was not all encompassing. A distinction was made between Leary's use of marihuana
as ". . . an aid to attain conscious expansion by which an individual can more
easily meditate or commune with his god" (Leary,
p. 860) and the Native American Church's "'ceremony marked by the sacramental
use of peyote, composes the cornerstone of the peyote religion.'" So it would
appear that the Fifth Circuit has left open the question of religious discrimination
under the Establishment and Equal Protection Clauses.
Plaintiff has cited
Kennedy v. Bureau of Narcotics and Dangerous Drugs, 459 F.2d 415
(9th Cir., 1972), cert. den. 409 U.S. 1115, 93 S. Ct. 901, 34 L. Ed. 2d
699, in support of its religious discrimination claim. Plaintiff in that case won
the battle but lost the war. Two members of the Court in
Kennedy found unconstitutional discrimination as the Native American
Church is afforded an exemption but Kennedy's Church of the Awakening was not afforded
exemption. Kennedy lost though, because he proposed a two church exemption which
those two members of the Court found to be infected with the same vice of unconstitutional
discrimination.
Moreover, the third member of that Court found
Leary, above, to be applicable as:
Peyote therefore appears to be a means to an end in the realm of the Church of the
Awakening, whereas the Indians worship the drug itself. (p. 418)
The thrust of the majority's decision in
Kennedy was that the Federal Government could only be concerned
with the health of American citizens when it controls dangerous drugs such as peyote.
This was no doubt true when both the Congress and the Texas Legislature passed the
federal and state drug control laws. But this is only one side of the coin.
The American Indian Religious Freedom Act, Public Law 95-341, 92 Stat. 469, became
effective August 11, 1978. Section 1 of Pub. Law 95-341 enacted 42 U.S.C. § 1996
which reads as follows:
On and after August 11, 1978, it shall be the policy of the United States to protect
and preserve for American Indians their inherent right of freedom to believe, express,
and exercise the traditional religions of the American Indian, Eskimo, Aleut, and
Native Hawaiians, including but not limited to access to sites, use and possession
of sacred objects, and the freedom to worship through ceremonials and traditional
rites.
The legislative history of the American Indian Religious Freedom Act, found at 1978
U.S.Code Cong. and Adm.News, p.1262, is clear in finding that religion is an integral
part of Indian culture and that the use of such items as peyote are necessary to
the survival of Indian religion and culture.
[*638] No doubt this public policy is also applicable to the Texas
exemption for the Native American Church.
As Plaintiff is seeking the use of peyote for its members, it would be incongruous
for Plaintiff to argue that the members of the Native American Church should not
be granted an exemption from the prohibitions of the state and federal drug laws.
So the question to be answered is whether or not it is permissible that the state
and federal governments allow only exemptions from their respective drug laws to
the members of the Native American Church and not to others who also profess a belief
in peyote as a central sacrament. [Footnote 7]
Plaintiff argues that the United States and the State of Texas are treating the
members of the Native American Church as members of a racial group and that singling
them out as such is unconstitutional invidious discrimination under the Fifth Amendment
(Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed 884 [1954]) and
the Fourteenth Amendment (Brown v. Board of Education, 347 U.S. 483, 98
L. Ed. 873, 74 S. Ct. 686 [1953]).
The Parties have made much over the case of Morton v. Mancari, 417 U.S.
535, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1973). The Court in that case held that the
hiring preference for Indians in Section 12 of the Indian Reorganization Act, 25
U.S.C. § 472, was not impermissible racial discrimination. In footnote 24, at page
553, the Court found that that preference was not racial in nature but political
in nature as it was not directed at Indians as a race but members of "federally
recognized" tribes. At pages 554 & 555, the Court listed other legislation
that treats Indians differently that have been upheld by the Court. The penultimate
paragraph of the opinion, at page 555, concludes with these two sentences:
As long as the special treatment can be tied rationally to the fulfillment of Congress's
unique obligation toward the Indians, such legislative judgments will not be disturbed.
Here, where the preference is reasonable and rationally designed to further Indian
self-government, we cannot say that Congress's classification violates due process.
Plaintiff would have Morton v. Mancari limited to the Indians who live
on reservations or near to reservations. It is true that Morton v. Mancari
and the cases cited in it at pages 554 & 555 do relate to Indians who live on
or near a reservation so that the precedent may not be exact in the present case.
But the reasoning is applicable.
One of the cases cited by the Court in Morton v. Mancari at p. 555 is Worcester
v. Georgia, 31 U.S. 515, 8 L. Ed. 483 (1832). Chief Justice John Marshall
explained the legal position of the Indians as had been recognized by the earliest
European explorer nations. He said, at p. 559: "The Indian nations had always
been considered as distinct, independent, political communities, retaining their
natural rights . . . . The very term 'nation,' so generally applied to them, means
'a people distinct from others.' One year before Worcester v. Georgia,
Chief Justice Marshall in Cherokee Nation v. Georgia, 30 U.S. 1, 11 &
12, 8 L. Ed. 25 (1831) discussed the status of Indians in the United States. He
said in pertinent part: "The condition of the Indians in relation to the United
States is, perhaps, unlike any other two people in existence . . . . The relation
of the Indians to the United States is marked by peculiar and cardinal distinctions
which exist nowhere else . . . . They may, more correctly, perhaps, be denominated
domestic dependent nations."
A little over 30 years after these cases, the Court relied upon them in the case
of United States v. Holliday, 70 U.S. 407, 18 L. Ed. 182 (1865). The essential
holding in this case is that Congress can legislate with respect to Indian tribes
or their members wherever that tribe or member may be.
[*639] So we see that Indian rights and preferences exist whether
or not a person asserting an Indian right or preference lives on or near a reservation.
The proper question is really more whether or not the individual is asserting a
right or preference as a member of a tribe? So what is a tribe?
The Supreme Court held in Menominee Tribe v. United States, 391 U.S. 404,
20 L. Ed. 2d 697, 88 S. Ct. 1705 (1967) that treaty rights of Indians survive the
termination of supervision over a tribe unless Congress clearly abrogates those
treaty rights which are being asserted which would also leave the United States
subject to claims for compensation. The Court specifically reserved the question
of who could assert those rights. There were two entities proposed by the real parties
in interest as the proper party to assert the tribal rights. One was a corporation
that had received all of the Menominee's tribal assets that had been held in trust
by the United States before the termination of supervision. The other was another
corporation which was made up of the members of the Menominee tribe.
The Ninth Circuit has held that some sort of such an organized tribal structure
must exist before treaty rights may be asserted. United States v. State of Washington,
641 F.2d 1368 (1981), cert. den. 494 U.S. 1143, 102 S. Ct. 1001, 71 L.
Ed. 2d 294 (1982). That Court's explanation for this test is found at pp. 1372 &
1373 where the Court said:
This single condition reflects our determination that the sole purpose of requiring
proof of tribal status is to identify the group asserting treaty rights as the group
named in the treaty. For this purpose, tribal status is preserved if some defining
characteristic of the original tribe persists in an evolving tribal community.
The Court went on to further explain that the organization need not take the same
form as was present when the tribe came under the supervision of the United States.
Indeed, a tribe may have been no more than a cultural group without a political
structure. 641 F.2d at 1373.
This Court sees the Ninth Circuit's reasoning to be sound. The Congress has a power
or duty to the Indians to preserve their dependent nations until such a time as
they may become so assimilated so as to not be "a people apart." The exercise
of power or duty is not over or to Indians as legalistic "tribes" but
as people who have a distinctive culture. Congress in the American Indian Religious
Freedom Act has recognized this duty owed. The Federal Government and the State
of Texas are furthering this policy by granting an exemption for the use of peyote
in the rituals of the Native American Church.
Is there sufficient structure so that it may be determined who is entitled to the
State and Federal exemptions? The proof on this point is not overwhelming, to say
the least. But Plaintiff has attempted to show its legitimacy by comparing itself
to the Native American Church of Navajoland, Incorporated, an organization whose
members are exempt. It is not clear that all Indian peyoteists belong to such an
organized church. [Footnote 8] But as to those who do, under the reasoning of the
Ninth Circuit in United States v. State of Washington, above, there is
sufficient structure so that the right of a member to avail himself or herself of
the exemptions afforded by the State of Texas and the Federal Government may be
determined. [Footnote 9]
To put this another way, Congress has the power or duty to preserve our Native American
Indians (also our Eskimos & Aleuts) as a cohesive culture until such time, if
ever, all of them are assimilated in the main stream of American culture. Second,
some sort of a formal organization [*640] or community must be
extant so that it may be determined who is a member of the culture to be preserved.
In the present case, both criteria have been met so that it cannot be said that
the Federal Government and the State of Texas have treated the members of the Native
American Church as members of a racial group but as part of those dependent nations,
"a people apart," that were found here by the earliest European settlers.
[Footnote 10]
As the Court has weighed the evidence presented orally at the Motion for Preliminary
Injunction hearing in deciding that motion and the Motions for Summary Judgment,
it would be improper to grant those motions. Therefore, Counsel for the Defendants
are requested to propose a form of order denying all three motions.