Indigenous peyote use: 5 Questions for attorney Steven C. Moore

Moore discusses the history and future of peyote use and legal access for Indigenous people in the United States.

In 1985, two years after Steven C. Moore joined the Native American Rights Fund (NARF) as a staff attorney, NARF was contacted by special counsel representing Texas. The U.S. Department of Justice and the state of Texas had been sued by the Peyote Way Church of God, a religious organization based in Arizona that was blocked from buying peyote from Texas because they were not Indigenous. Under federal law, only members of the Native American Church are authorized to ingest peyote. NARF did not represent a client in the case, but Moore worked with the special counsel for the state of Texas to uphold the law restricting peyote purchases to the Native American Church. 

The Peyote Way Church of God eventually lost their case in what was Moore’s first introduction to the complex legal battles over Indigenous peyote use. Since then, Moore has spent decades working to protect Indigenous peyote rights, among other Indigenous legal issues including sacred places and water rights. Moore was involved in Employment Division, Department of Human Resources of Oregon v. Smith, a 1989 Supreme Court case over the state’s denial of unemployment benefits to an Indigenous man named Al Smith after he was fired for using peyote. As described in the episode of WNYC’s podcast More Perfect “The Supreme Court v. Peyote,” there was tension between NARF, which was representing the Native American Church, and Smith. Some Native American Church members worried that Smith was putting their religion at risk by bringing his case to the U.S. Supreme Court. Those fears were realized when Smith lost his case. 

In the aftermath of the Smith decision, NARF helped advocate for the 1994 amendments to the American Indian Religious Freedom Act that protected traditional Indigenous peyote use. And for the last decade or so, Moore has served as a legal advisor to the Indigenous Peyote Conservation Initiative (IPCI), a nonprofit organization that purchased over 600 acres in south Texas to create a hub for Indigenous peyote harvesting, ceremony, and reconnection. 

What is the history of legal protections—or lack thereof—for Indigenous peyote use? 

In the 1500s when the Spanish first came to Mexico, papal edicts were issued outlawing peyote use among the Indigenous population. They realized that there were these powerful plant medicines being used by Indigenous peoples, and that it was antithetical to Christianity to let these ‘heathen savages’ continue to practice their spiritual ways they had practiced for thousands of years. Among other atrocities, the Catholic Church ran roughshod over and persecuted Indigenous peoples in Mexico for using peyote. 

That tradition of persecuting Indigenous peoples moved north into what became the United States. The federal government outlawed the possession and use of peyote and other religious practices. And then states began to follow suit. So, to capsulize it, we’ve experienced more than a century of persecution of the Native American Church in the United States. 

And then, of course, there's the enactment of the Federal Controlled Substances Act in the early 1970s. Mescaline/peyote became a Schedule 1 listed substance, the most highly regulated and dangerous in the eyes of the federal government.  (Editor’s Note: mescaline is the psychoactive compound in the peyote cactus but it can also be produced synthetically in a lab without any plant input.) And then all the states followed suit with state controlled substances laws, including Texas. When Texas passed its drug laws, it eventually, after being sued, put in place a provision that allowed for the purchase, possession, and transportation of peyote by members of the Native American Church. The effort in Texas in the early years of their drug enforcement system, to accommodate the purchase and sale of peyote, was necessary because in the United States peyote is only found in south Texas. 

Native Americans then, for the past 50 years, have gone through licensed distributors under Texas law to purchase peyote. Prior to that, it had been a more direct access system where informal distributors had relationships with ranchers and would connect Native Americans on pilgrimages to Texas with the ranches where the cacti grows. With the installation of the formal distributor system, Indian people could then start buying peyote through the U.S. mail. And that system’s still in place. But it’s never been prohibited for Native Americans to come down to Texas and harvest their own peyote on ranch lands with the permission of the landowner.

Could you explain what the landscape looks like today for organized Indigenous peyote use? 

Generally speaking, as religions, the Native American Churches and its Navajo counterpart, Azee' Bee Nahagha' of Dine Nation (ABNDN), are decentralized, with religious activities and practices organized along chapter lines. The chapters vary from maybe an extended family group in one situation to 75 members or more in other locations. There are Native American Church/ABNDN organizations throughout many states west of the Mississippi, and some in the Northeast. 

There has been over time some effort to create more regional kinds of political structures to the Church. And there is an organization called the Native American Church of North America, which maybe has about 30 chapters who are members of the organization, and a couple of those chapters are in Canada, so they have some presence in North America beyond the United States. But it's not a huge organization, especially when you compare it to ABNDN, which is the largest organization in terms of raw numbers. There are more Navajo practitioners of the religion than any other tribe. So, there are some places where it's more prevalent or prominent than others, but generally I would characterize it as primarily decentralized, established and organized under the chapter structure. 

And on the subject of organization, it seems like a lot of these big national Indigenous rights protection issues often come down to a question of tribal sovereignty. So I wanted to ask what role tribal sovereignty plays here. It seems like a lot of this is dependent on these individual Church chapters rather than Navajo Nation itself, for example. 

It is different. In the religion itself, you don't see tribes exerting any actual regulatory control over the peyote religion. For the most part, tribes are very respectful of their members who practice that way of life. And there are other forms of traditional religion that are respected on Indian reservations as well, and Christian religions that are respected or tolerated. There's a lot of tolerance of a variety of religions on most reservations. As a matter of federal law, members of Indian tribes have rights under the Indian Civil Rights Act to religious freedom, so tribal governments can't intrude upon or frustrate or prohibit the practice of religion on their reservations. 

But on occasion tribes are involved in peyote matters.  On an issue like decriminalization, for example, the Navajo Nation has convened a group to help advise the president of the Navajo Nation on the position that the Nation should take with respect to decriminalization. In an instance like that, we're seeing a tribe that's going to, I think, make a very strong public statement against decriminalizing peyote. I expect there will be other tribes that will get involved in that space, too, following Navajo. There's a national organization, the National Congress of American Indians, that has passed resolutions strongly supporting the Native American Church in this whole area of decriminalization and Big Pharma.

What are the ongoing issues with decriminalization and some of the other threats or challenges to Indigenous peyote use? 

(Editor’s Note: Native American Church leadership has called for psychedelic decriminalization efforts to exclude peyote, which they say should be preserved for Indigenous use, given the historical and ongoing threats to Indigenous peyote users.)

The Indigenous Peyote Conservation Initiative (IPCI) and other people worked very closely with California State Senator Weiner's staff on what we think is an effective position for peyote on the decriminalization issue. Basically, Senate Bill 58 in a nutshell doesn't remove the current status of peyote under California law. So, in California, it would remain a Schedule 1 drug. Under California law, it would not be decriminalized. The current law would remain intact,  the whole purpose for doing so would be out of respect for the hard and long fought rights of Native people under the federal 1994 American Indian Religious Freedom Act amendments. And out of respect for the fragile nature of the population of peyote in South Texas and the increasingly limited supply of peyote for Native American people. 

The Decriminalize Nature organization, I think, still strongly opposes that position on peyote. I think they’d like to decriminalize peyote for everyone. What we’ve heard is “let’s decriminalize peyote for everyone, let’s legalize cultivation of peyote for personal use by anyone to foster conservation in south Texas.” Given the nature of the cactus and the fact that from germination it could take a dozen or more years before that cactus can be harvested for human consumption, most people are not going to wait a dozen or more years in growing their own peyote to use it as a plant medicine for healing purposes and spiritual connection. 

We have already seen an uptick in recent years in the trespassing and poaching on private ranch lands in south Texas. We think that's a direct result of the broader psychedelic renaissance that's coming back to life now. These plants can help humanity in very profound ways, but it needs to be done right so there's not abuse. 

Several NAC organizations, and ABNDN, came together several years ago to form a non-profit known as IPCI, to begin to work more systematically on peyote habitat protection and conservation issues in south Texas.  Creating and fostering rancher relationships— all the peyote is on private ranch lands— and working on land management practices are central priorities of IPCI.  IPCI is also working to rebuild the traditional pilgrimage and harvesting system that had existed for decades, in close consultation with affected Native American Church chapters and organizations.

You talked about the history of persecution and now this psychedelic renaissance. What are the next steps? Is the next fight going to be over state legislation? 

I think it'd be nice if we had a Congress that would support some kind of silver bullet approach to fixing this problem of protecting peyote at all times in all places. But that is an exceedingly complex undertaking, especially with such a polarized political climate we’re facing.  There are people working on psychedelic reform in Congress, and having some interesting early success, but none of that effort has gotten anywhere close to peyote. I think it's going to have to be slogged out on a state and local basis. And what we try to do is spread information about how IPCI and its allies want to position peyote so that peyote is respected and protected under current law. 

Prop 122 in Colorado, I think, is a useful recent example. It's a psilocybin and mescaline decriminalization state law and it expressly exempts peyote. So current law stands in place for peyote. It's not decriminalized or legalized. I think we've had some positive inroads educating legislators of the need to protect peyote for Native peoples. And we hope the example of Senate Bill 58 in California and Prop 122 in Colorado will become the template for other states to follow in dealing with peyote. Local city governments should also follow suit and take the same approach to protecting peyote.

This interview has been edited and condensed for clarity and length.