Written By Cynthia S. Mazur 

                           TABLE OF CONTENTS



       A.   The Native American Church.............................2 
       B.   Peyote.................................................4 
       C.   The Controlled Substances Act..........................5 
       D.   The Native American Church Exemption...................7 


       AMERICAN CHURCH.............................................15 

       A.   Olsen Proceeds Pro Se..................................15 
       B.   Amicus is Appointed to Represent Olsen.................22 
       C.   Remand to the DEA......................................23 
       D.   The DEA Denies the Exemption...........................28 
       E.   The Court of Appeals Denies the Exemption..............30 
            1.   The Majority......................................30 
            2.   Judge Buckley's Dissent...........................32 

       THE CONSTITUTION............................................36 

       A.   Comparing The Two Exemptions...........................37 
       B.   Comparing the Law Enforcement Problems.................39 
       C.   Comparing the Churches' Rituals........................42 
       D.   Comparison of the Drugs................................46 
       E.   Comparison of Attitudes Towards the Two Churches.......48 

  V.   CONCLUSION..................................................50 

                     MARIJUANA AS A HOLY SACRAMENT:

"And God said, Behold, I have given you every herb bearing seed." 
Genesis 1:29 (King James). 

     This past April, within one week, the Supreme Court: 1) denied 

certiorari to Carl Eric Olsen, an Ethiopian Zion Coptic priest appealing 

the denial of a DEA exemption for the sacramental use of marijuana; 

[footnote 1] and 2) held that the State of Oregon could deny unemployment 

compensation to two Native Americans who had been fired for the 

sacramental use of peyote. [footnote 2]  Similarities between the two 

cases end there.  The Supreme Court's latter holding does not change the 

fact that Congress and the Drug Enforcement Administration ("DEA"), have 

decided to accommodate the religious practices of the Native American 

Church ("NAC"), and accord it a preferential position by establishing, 

pursuant to regulation, its right to religious drug use over against all 

other churches. {footnote 3]  Part I of this article will set forth the 

favorable treatment which the federal government extends to the NAC 

regarding its unlimited exemption to use peyote in religious ceremonies. 

[footnote 4]  Part II of this article will 

     [footnote 1]  Olsen v. Drug Enforcement Admin., 110 S. Ct. 1926 

     [footnote 2]  Employment Div., Dep't of Human Resources v. Smith, 
110 S. Ct. 1595 (1990).  The Court determined that the U.S. Constitution 
does not mandate a free exercise right to the sacramental use of peyote.  

     [footnote 3]  See infra notes 36-39 and accompanying text. 

     [footnote 4]  See infra notes 8-39 and accompanying text. 


examine the basic tenets of the Ethiopian Zion Coptic Church ("EZCC") , 

related to the sacramental use of marijuana. [footnote 5]  Part III of 

this article will detail the responses of the DEA and the courts to the 

EZCC's requests for an exemption similar to that held by the NAC. 

[footnote 6]  Finally, Part IV of this article will analyze the 

constitutionality of the differing treatment of the two religions. 

[footnote 7] 


     A. The Native American Church 

     When one tries to solidify a definition of the NAC, it must be 

remembered that America has 307 Native American tribes living within its 

borders. [footnote 8]  There is no majority control of the NAC and as a 

result, the only statement "that is safe to make is that there is, in 

many places and in many ways, a concept of a Native American Church." 

[footnote 9]  How the NAC conducts its rituals and celebrates its 

sacrament is subject to myriad differences." [footnote 10] 

     [footnote 5]  See infra notes 40-60 and accompanying text. 

     [footnote 6]  See infra notes 61-140 and accompanying text. 

     [footnote 7]  See infra notes 141-201 and accompanying text. 

     [footnote 8]  This number includes in its definition federally 
recognized bands, villages, groups, and pueblos but does not include 
tribes located in Alaska.  The World Almanac & Book of Facts 1991 394 

     [footnote 9]  A. Marriott & C. Rachlin, Peyote at 105, 107-08 
(1971).  Marriott and Rachlin cite the two, prior definitive studies in 
this area as Weston La Barre's The Peyote Cult, and J.S. Slotkin's The 
Peyote Religion: A Study in Indian-White Relations.  A. Marriott, supra, 
at ix. 

     [footnote 10]  See id. at 105-08. 


     While the NAC has no recorded theology, members combine certain 

Christian teachings with the belief that peyote embodies the Holy Spirit. 

[footnote 11]  It is believed that those who partake of peyote enter into 

direct contact with God and experience a heightened sense of 

comprehension which includes a deep feeling of compassion for others. 

[footnote 12] 

     Worship in the NAC centers around the "peyote meeting" which begins 

at sundown and continues at least until day break. [footnote 13] 

Normally, the ceremony is conducted to give thanks or to receive 

guidance. [footnote 14]  Participants sit in a circle around a fire, 

[footnote 15] consume peyote during the ceremony, and may pray, sing, or 

use a drum. [footnote 16]  Other accouterments can include a fan, eagle 

bone or feather, whistle, rattle, and/or a prayer cigarette. [footnote 

17]  While the membership of the NAC is estimated to consist of between 

250,000 and 400,000 people, [footnote 18] there are no official 

prerequisites to 

     [footnote 11]  People v. Woody, 61 Cal. 2d 716, 720, 40 Cal. Rptr. 
69, 73, 394 P.2d 813, 817 (1964). 

     [footnote 12]  See id. 

     [footnote 13]  Id. at 720-21, 40 Cal. Rptr. at 73, 394 P.2d at 817. 

     [footnote 14]  Id. at 721, 40 Cal. Rptr. at 73, 394 P.2d at 817. 

     [footnote 15]  A. Marriott, supra note 9, at 121. 

     [footnote 16]  Woody, 61 Cal. 2d at 721, 40 Cal. Rptr. at 73, 394 
P.2d at 817. 

     [footnote 17]  Id. 

     [footnote 18]  Peyote Way Church of God v. Smith, 742 F.2d 193, 198 
(5th Cir. 1984). 


membership and no written membership rolls. [footnote 19]  In fact, there 

are wide differences of opinion within the NAC regarding what constitutes 

a member. [footnote 20] 

     B. Peyote 

     Peyote, an hallucinogenic cactus, [footnote 21] has effects similar 

to lysergic acid diethylamide ("LSD"). [footnote 22]  "The major active 

ingredient in peyote is mescaline." [footnote 23]  The precursor of the 

DEA, the Bureau of Narcotics and Dangerous Drugs ("BNDD"), [footnote 24] 


     [footnote 19]  Woody, 61 Cal. 2d at 720, 40 Cal.  Rptr. at 73, 394 
P.2d at 817. 

     [footnote 20]  id. 

     [footnote 21]  Peyote, which is native to the region of the Rio 
Grande Valley and southward, is a plant classified botanically as 
Lophorphora Williamsii Lemaire.  It is a small, spineless, low growing 
cactus and is carrot or turnip-like in shape and size.  Only the fleshy, 
rounded top grows above ground.  After the pincushion top is sliced off 
and dried, it becomes a hard and brittle disk-like button, which is used 
ceremoniously to produce "profound sensory and psychic phenomena."  35 
Fed. Reg. 14789-90 (1970). 

     [footnote 22]  Id.  LSD is a "Psychedelic" which refers to a class 
of drugs including mescaline and marijuana, among others, whose primary 
effect is to expand consciousness, heighten intellectual activity, and 
increase sensory awareness.  Leary v. United States, 383 F.2d 851, 858, 
860 (5th Cir. 1967), rev'd on other grounds, 395 U.S. 6 (1969).  
Researchers have found that religious reactions in those partaking of 
psychedelic drugs are present in varying degrees from about 25% to 90% of 
all users.  United States v. Kuch, 288 F. Supp. 439, 444 (D.D.C. 1968).  
A "religious reaction" is defined as a sharpening of the senses and a 
mixed feeling of awe and fear.  There may be a sense of mystery, peace, 
and a sharpening of impressions as to all natural objects, perhaps 
something like the vision Moses had of the burning bush.  Id. 

     [footnote 23]  Peyote Way Church of God v. Smith, 742 F.2d 193, 197 
(5th Cir. 1984). 

     [footnote 24]  For a discussion of the dissolve of the BNDD and the 
creation of the DEA, see the notes to 21 U.S.C. § 881 (1988). 


reported that mescaline may produce an altered consciousness marked by: 

1) confused mental states and dreamlike revivals of past traumatic 

events; 2) alteration of sensory perception evidenced by visual illusions 

and distortion of space and perspective; 3) alteration of mood with 

anxiety, euphoria, or ecstacy; 4) alteration of ideation with impairment 

of concentration and intelligence; and 5) alteration of personality with 

impairment of conscious functioning and the deterioration of inhibitions. 

[footnote 25]  Indeed, ingestion of peyote may result in such severe 

reactions as psychosis and suicide. [footnote 26]  The federal drug laws 

which prohibit peyote use, however, do not apply to participants who 

ingest peyote as part of the NAC religious ritual. [footnote 27] 

     C. The Controlled Substances Act 

     The Controlled Substances Act of 1970 ("CSA"), provides a 

comprehensive system of federal drug control laws in the United States. 

[footnote 28]  The CSA establishes five schedules of controlled 

     [footnote 25]  See 35 Fed. Reg. 14,791 (1970) (in addition, 
ingestion of peyote may result in fetal abnormalities, incurable 
psychosis, and personality disintegration); 742 F.2d at 197. 

     [footnote 26]  See id.  On the other hand, some report that through 
the use of peyote: 1) euphoria and good feelings are heightened; 2) 
colors and music are more vivid and more pleasing; 3) prayers take on an 
intense philosophical and ethical quality; and 4) a state of inner peace 
takes place where the individual may experience visions or sensations of 
the supernatural.  A. Marriott, supra note 9, at 70.  Peyote is not 
thought to be addictive.  Amicus Memorandum Before DEA, July 1988, App. 
16, at 415 n.27. 

     [footnote 27]  21 U.S.C. § 812 (1988); 21 C.F.R. S 1307.31 (1990). 

     [footnote 28]  See 21 U.S.C. §§ 801-971 (1988). 


substances, with Schedule I containing those substances subject to the 

most restrictive control. [footnote 29]  Schedule I substances are 

defined as those which meet the following three criteria: 

     1)  "a high potential for abuse"; 

     2)  "no currently accepted medical use in treatment in 
     the United States"; and 

     3)  "a lack of accepted safety for use ... under 
     medical supervision." [footnote 30] 

Peyote is classified as a Schedule I controlled substance [footnote 31] 

of the CSA which prohibits its distribution, its possession with intent 

to distribute, and its possession without a prescription. [footnote 32] 

     Section 1307.03 of the Code of Federal Regulations allows a 

petitioner to apply for an exception to "any provision" of the 

     [footnote 29]  21 U.S.C. § 812 (1988). 

     [footnote 30]  21 U.S.C. § 812(b)(1) (1988). 

     [footnote 31]  Other Schedule I substances include marijuana, LSD, 
and heroin.  21 U.S.C. § 812(c) (1988). 

     [footnote 32]  21 U.S.C. §§ 812(c)(c)(12), 841, 844 (1988).  The 
manufacture and distribution of peyote were first prohibited by federal 
law in the Drug Abuse Control Amendments of 1965, which were superseded 
by the CSA.  21 U.S.C. § 812(c), Schedule I(c)(12) cited in Native Am.  
Church of N.Y. v. United States, 468 F. Supp. 1247, 1249 (S.D.N.Y. 1979) 
(also citing 79 Stat. 226 § 3(a)). 

          "Peyote was classified as a 'narcotic' in the Narcotic Farm Act 
of 1929, 45 Stat. 1085, to enable peyote 'addicts' to seek treatment at 
federal facilities.  The Food, Drug and Cosmetic Act of 1938 also 
classified peyote as a narcotic or hypnotic substance, 52 Stat. 1050, and 
imposed certain labeling requirements.  Neither statute prohibited the 
manufacture or distribution of peyote."  Amicus Memorandum before DEA, 
July 1988, App. 16, at 404 n.3 (Memorandum Opinion for the Chief Counsel, 
DEA, Dec. 22, 1981). 


drug prohibitions. [footnote 33]  Indeed, evidence may be presented to 

the Attorney General by any interested party in order to determine 

whether a particular drug should be reclassified, added, or removed from 

the schedules. [footnote 34]  The CSA also authorizes the Attorney 

General to establish registration procedures to permit persons to 

manufacture, distribute, or dispense controlled substances and confers 

broad authority to grant and waive registration requirements. [footnote 


     D.  The Native American Church Exemption 

     The language of the CSA contains no exemptions from its 

prohibitions; nonetheless, in 1965, Congress passed the Drug 

     [footnote 33]  21 C.F.R. § 1307.03 (1990).  The regulations 
implementing the CSA's provisions concerning the scheduling of controlled 
substances, registration of manufacturers, labeling of substances, 
issuance of prescriptions, record-keeping and reporting requirements, and 
similar matters are codified at 21 C.F.R. §§ 1300-1316 (1990). 

     [footnote 34]  See 21 U.S.C. § 811(a) (1988); see also National Org. 
for the Reform of Marijuana Laws v. DEA, 559 F.2d 735, 737-38 (D.C. Cir. 
1977) ("Recognizing that the results of continuing research might cast 
doubts on the wisdom of initial classification assignments, Congress 
created a procedure by which changes in scheduling could be effected.").  
Citing marijuana as an example, Congress noted the need for flexibility 
when it enacted the CSA: 
     The extent to which marihuana should be controlled is a 
     subject upon which opinions diverge widely.  There are 
     some who not only advocate its legalization but would 
     encourage its use; at the other extreme there are some 
     States which have established the death penalty for 
     distribution of marihuana to minors. 
H.R. Rep. No. 91-1444, 91st Cong., 2d Sess. 12, reprinted in 1970 U.S. 
Code Cong. and Ad. News 4566, 4577. 

     [footnote 35]  21 U.S.C. §§ 821-23 (1988).  Section 823(b), which is 
entitled "Registration requirements," sets forth the bases for granting 
registration to distribute a controlled substance under Schedule I.  
Public health and safety comprise one relevant factor.  Id. 


Abuse Control Amendments with the understanding that bona fide religious 

use of peyote was exempt from regulation. [footnote 36]  The 

     [footnote 36]  After the Drug Abuse Control Amendments of 1965, 79 
Stat. 226 § 3(a) ("H.R. 2"), passed the Senate and were being debated in 
the House, Congressman Harris stated the following: 
          Mr. Harris:  The last amendment of substance made 
     by the Senate deletes the provisions of the House bill 
     which provided that the term "depressant or stimulant 
     drug" does not include peyote used in connection with 
     ceremonies of a bona fide religious organization. 
          Some concern has been expressed by many of the 
     religious groups affected, and by certain civil 
     liberties organizations concerning the possible impact 
     of this amendment on religious practices protected by 
     the first amendment to the Constitution. 
          Two court decisions have been rendered in this 
     area in recent years.  One, a decision by Judge Yale 
     McFate in the case of Arizona v. Attakai, No. 4098, in 
     the superior court of Maricopa County, Phoenix, 
     Arizona, July 26, 1960; and a California decision, 
     People against Woody, decided August 24, 1964, in the 
     Supreme Court of California.  Both these cases held 
     that prosecutions for the use of peyote in connection 
     with religious ceremonies was a violation of the first 
     amendment to the Constitution. 
          In view of all this, I requested the views of the 
     Food and Drug Administration and have been assured that 
     the bill, even with [sic without] the peyote exemption 
     appearing in the House-passed bill, cannot forbid bona 
     fide religious use of peyote. 
          Mr. Speaker, I ask for unanimous consent to 
     include the letter from the Food and Drug 
     Administration at this point in my remarks. 
          Dear Mr. chairman: In response to your 
          request we are stating the position the Food 
          and Drug Administration expects to take if 
          H.R. 2 becomes law as it passed the Senate 
          with respect to the use of peyote in 
          religious ceremonies. 
          We have been advised by a representative of 
          the North [sic Native] American Church that 
          this church is a bona fide religious 
          organization and that peyote has bona fide 
          use in the sacrament of the church.  The 
          representative has agreed to document both of 
          these statements. 
          If the church is a bona fide religious 
          organization that makes sacramental use of 
          peyote, then it would be our view that H.R. 


Attorney General in 1966, adopted a regulation effectuating Congress' 

intent. [footnote 37]  In 1970, when Congress passed the CSA, the BNDD 

assured Congress that a peyote use exemption would be carried forward by 

regulation. [footnote 38]  After the passage of the CSA, 

          2, even without the peyote exemption which 
          appeared in the House-passed version, could 
          not forbid bona fide religious use of peyote. 
          We believe that the constitutional guarantee 
          of religious freedom fully safeguards the 
          rights of the organization and its 
               Sincerely yours, 
                                   George P. Larrick, 
                         Commissioner of Food and Drugs 
     Mr. Speaker, in view of the foregoing, I recommend that 
     the House agree to the Senate amendments to H.R. 2. 
111 Cong.  Rec. 15,977-78 (1965).  Shortly after these remarks were 
concluded, the House concurred in the Senate amendments.  Amicus  
Memorandum before DEA, July 1988, App. 16 at 405-407 (Memorandum Opinion 
for the Chief Counsel, DEA, December 22, 1981) (footnote omitted).  
Responsibility for enforcing the 1965 Amendments was transferred from 
HEW, of which FDA is a part, to the BNDD, pursuant to Reorganization Plan 
No. 1 of 1968.  Government Brief, Jan. 4, 1989, at 4 n.4. 

     [footnote 37]  31 Fed. Reg. 565, 4679 (1966).  Congress' delegation 
of this authority to the Attorney General is a lawful delegation of 
legislative power.  Government Brief, Jan. 4, 1989, at 11 n.9 (citing 
United States v. Gordon, 580 F.2d 827, 837-40 (5th Cir. 1978), and United 
States v. Pastor, 557 F.2d 930, 939-41 (2d Cir. 1981)).  The Attorney 
General has delegated responsibility under the CSA to the DEA 
Administrator pursuant to 28 C.F.R. § 0.100 (1990). 

     [footnote 38]  The CSA hearings contain the following: 
     Mr. [Congressman] Satterfield.  I have one other 
     question.  I recall when we were discussing dangerous 
     drugs a few years ago, the question came up about the 
     Native American Church involving Indians in the west 
     who use and have for centuries used peyote in 
     connection with religious services.  It is my 
     understanding that they enjoy an exemption under the 
     current law. 
     My question is whether in any of the bills we have 
     before us, if passed, would in any way affect this 
     present exemption? 
     Mr. Sonnenreich.  [Deputy Chief Counsel of BNDD]. 


the BNDD promulgated the current regulation which provides: 

          § 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. [footnote 39] 

     In the first instance, Mr. Satterfield, the Native 
     American Church did ask us by letter as to whether or 
     not the regulation, exempting them by regulation, would 
     be continued and we assured them that it would because 
     of the history of the church.  We presently are 
     involved in another hearing regarding another church 
     that is a non-Indian church that is seeking the 
     exemption and the order is going to be published, I 
     believe, either today or tomorrow denying them the same 
     exemption as the Native American Church. 
     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'll continue the exemption. 
     Mr. Satterfield.  You do not see anything in the Senate 
     bill that would make this impossible? 
     Mr. Sonnenreich.  No.  Under the existing law 
     originally the Congress was going to write in a 
     specific exemption but it was then decided that it 
     would be handled by regulation and we intend to do it 
     the same way under this law. 
     Mr. Satterfield.  Thank you.  I have no other 
Drug Abuse Control Amendments of 1970 Hearings before the Subcommittee on 
Public Health & Welfare of the House of Representatives, 91st Cong. 2d 
Sess. 117-18 (1970). 

     [footnote 39]  21 C.F.R. § 1307.31 (1990).  For further discussion 
of the legislative history of the peyote exemption, see Toledo v. Nobel-
Sysco, Inc., 651 F. Supp. 483, 490 (D.N.M. 1986), and Native Am. Church 
of New York v. United States, 468 F. Supp. 1247, 1249-51 (S.D.N.Y. 1979). 
          In addition to the federal regulation, several states exempt 
the non-drug use of peyote from criminal prohibition.  See Whitehorn v. 
State, 561 P.2d 539 (Okla. 1977); State v.