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Peyote

Peyote is the name given to a small cactus that grows in the southwestern United States and the northern and central reaches of Mexico. The plant, which contains natural hallucinogenic substances, the most well known of which is mescaline, is very slow growing and is in danger of extinction in the wild because of demand caused by its growing use among Native American Church groups and natives in Mexico. This entry looks at its use and related legal issues.

Historical Background

When Spaniards first came to the New World, they found peyote being used by native groups throughout what is now central Mexico. Some scholars now think, based on archaeological evidence from Mexican and Texas sites, that peyote has been used in religious rituals for up to 3,000 years in the region. After the Europeans arrived, peyote use by natives became a major controversy in Spanish-occupied territories as the Catholic Church fought to suppress its use. However, given the strong traditions surrounding peyote use in native groups and its status as a sacrament, these efforts usually succeeded only in driving practitioners underground.

Use of peyote in religious rituals spread north from Mexico well over 100 years ago, with its use diffusing first to the Kiowa and Comanche tribes in the southwestern United States and later to other Native American groups in the United States and Canada. The spread of peyote use across North America led to considerable opposition from religious groups attempting to proselytize among Native Americans as well as from local government authorities. The liquor industry also opposed use of peyote, apparently preferring that natives use its product instead of naturally occurring peyote.

The opposition to peyote use prompted some Native American groups to formally organize the Native American Church so that their peyote rituals could gain some protection usually afforded religious groups in U.S. society. The church was organized in 1885, grew slowly, and now claims more than 250,000 participants from many different tribes across North America. Practitioners in North America seldom do their own gathering of peyote because of problems of distance and the increasing scarcity of the plant in the wild. Instead, peyote is now being cultivated by some individuals who sell it to church groups and do so legally given protections that have developed for its use by Native American Church groups over the years.

Legal Issues

Peyote use has played a significant role in defining the meaning of religious freedom in the United States, particularly for those participating in minority faiths. As it became increasingly used in religious rituals across North America beginning in the mid-1800s, a “crazy quilt” pattern developed where peyote use was legal among Native American Church members in some states but not in others. The problematic nature of this pattern was demonstrated in 1990 by the famous Employment Division, State of Oregon v. Smith decision deriving from developments in Oregon.

In Smith, two members of the Native American Church who worked as drug counselors for the State of Oregon were fired from their jobs for using peyote, which was illegal under Oregon's drug statutes. The two sought unemployment benefits and were denied by the state. They then sued and won at the trial court and Oregon Supreme Court levels on due process grounds because the law had never been enforced against members of the church. However, the State of Oregon appealed to the U.S. Supreme Court, which unexpectedly ruled against the plaintiffs and, in so doing, overturned decades of jurisprudence dealing with unemployment claims and religious freedom in the United States.

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