USA V. ROBERT LAWRENCE BOYLL

                    IN THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEW MEXICO


                       MEMORANDUM OPINION AND ORDER

UNITED STATES OF AMERICA,
 Plaintiff,
  v.
ROBERT LAWRENCE BOYLL,
 Defendant.

Crim. No. 90-207-JB.
Sept. 3, 1991


BURCIAGA, Chief Judge.

THERE is a genius to our Constitution.  Its genius is that it speaks to
the freedoms of the individual.  It is this genius that brings the
present matter before the Court.  More specifically, this matter
concerns a freedom that was a natural idea whose genesis was in the
Plymouth Charter, and finds its present form in the First Amendment to
the United States Constitution -- the freedom of religion.

The Government's "war on drugs" has become a wildfire that threatens to
consume those fundamental rights of the individual deliberately
enshrined in our Constitution.  Ironically, as we celebrate the 200th
anniversary of the Bill of Rights, the tattered Fourth Amendment right
to be free from unreasonable searches and seizures and the now frail
Fifth Amendment right against self-incrimination or deprivation of
liberty without due process have fallen as casualties in this "war on
drugs."  It was naive of this Court to hope that this erosion of
constitutional protections would stop at the Fourth and Fifth
Amendments.  But today, the "war" targets one of the most deeply held
fundamental rights -- the First Amendment right to freely exercise one's
religion.

To us in the Southwest, this freedom of religion has singular
significance because it affects diverse cultures.  It is as much of us
as the rain on our hair, the wind on the grass, and the sun on our
faces.  It is so naturally a part of us that when the joy of this
beautiful freedom sings in our souls, we find it hard to conceive that
it could ever be imperiled.  Yet, today, in this land of bright blue
skies and yellow grass, of dusty prairies and beautiful mesas, and
vistas of red earth with walls of weathered rock, eroded by oceans of
time, the free spirit of the individual once again is threatened by the
arrogance of Government.

The issue presented is the recurring conflict between the Native
American Church members' right to freely exercise their religion through
the ceremonial use of peyote and the Government's efforts to eradicate
illegal drugs.  To the Government, peyote is a dangerous hallucinogen.
To Robert Boyll, peyote is both a sacrament and a deity essential to his
religion.  But this matter concerns competing interests greater than
those relating to this small, spineless cactus having psychedelic
properties.  It draws forth a troublesome constitutional conflict which
arises from fundamentally different perspectives of peyote.

In its "war" to free our society of the devastating effects of drugs,
the Government slights its duty to observe the fundamental freedom of
individuals to practice the religion of their choice, regardless of
race.  Simply put, the Court is faced with the quintessential
constitutional conflict between an inalienable right upon which this
country, was founded and the response by the Government to the swelling
political passions of the day.  In this fray, the Court is compelled to
halt this menacing attack on our constitutional freedoms.

On May 10, 1990, the Federal Grand Jury indicted Robert Lawrence Boyll,
a non-Native American, for unlawfully importing through the United
States mail and possessing peyote with the intent to distribute it, in
violation of 21 U.S.C.  952(a), 960(b)(3), 843(b) & (c), & 841(a)(1)
(1981).  The three-count indictment arose out of Mr. Boyll mailing
himself a quantity of peyote front Mexico to his home in San Cristobal,
New Mexico.

In his motions to dismiss, Mr. Boyll argues that the indictment violates
his First Amendment right to freely exercise his religion.  Mr. Boyll
also claims that, pursuant to 21 C.F.R.  1307.31 (1990), the listing of
peyote as a controlled substance does not apply to him because he is a
member of the Native American Church and he imported and possessed
peyote for use in bona fide religious ceremonies of the Native American
Church.

The United States adopts a racially restrictive reading of 21 C.F.R.
1307.31, arguing that the protection contained therein applies only to
members of the Native American Church who are American Indians.  It
claims that Mr. Boyll cannot be a member of the Native American Church
because "membership is limited to persons who [sic] ethnic descent is at
least twenty- five percent derived from American Indian stock, and to
the spouses of such persons"; that, therefore, Mr. Boyll cannot be a
member of the Native American Church since neither he nor his spouse is
twenty-five percent American Indian.

The Court held an evidentiary hearing in this matter on October 18,
1990.  It immediately became apparent that an examination and
understanding of the history and present structure of the Peyote
Religion and the Native American Church, as well as of 21 C.F.R.
1307.31, is essential to a faithful resolution of the issues presented
by Mr. Boyll's motions.


The following will constitute the Court's findings of fact and
conclusions of law.

The peyote plant is a small, spineless cactus having psychedelic
properties and the experience of eating it is central to the Peyote
Religion. [footnote 1]  Unlike traditional religions which have
sacramental symbols such as bread and wine, peyote is more than a
sacrament to members of the Native American Church.  Peyote is, itself,
considered a deity which cannot be owned by any individual.  Peyote is
worshipped and eaten at a religious ceremony called a peyote meeting.
"Peyote is a sacred medicine; peyote protects; peyote allows one to see
the future, or to find lost objects; peyote gives power to the user that
may be manifest in various ways; peyote teaches; peyote may be used by
Christians or may be incorporated with Christian ideas; a pilgrimage to
gather peyote plants is viewed as an act of piety to be undertaken if
possible...."  Omer C. Stewart [footnote 2], Peyote Religion 41 (1987).
It is considered sacrilegious to use peyote for nonreligious purposes.

The peyote ceremony is unique and the very cornerstone of the Peyote
Religion.  It is always conducted by individuals who hold honored posts
which have specially assigned duties.  The leader of the ceremony is
called a "roadman."  The roadman is responsible for initiating the
participants, although worshipers who are not personally invited are
usually welcomed as well.  Other officials present at a peyote meeting
include the chief drummer, who sits on the right of the roadman; the
cedarman, who sits on the left of the roadman and sprinkles sagebrush
"incense" on the fire; and the fireman or doorman, who tends the fire
and sits near the opening of the teepee.  Each meeting also has a
sponsor who is responsible for securing a site, the roadman, the teepee
and other materials necessary for the service.  Although not all
ceremonies of the Native American Church are identical, the general
concepts have been so well defined, so established in traditional
practice, that they have not changed significantly for nearly a hundred
years.  Peyote Religion at 36, 339-75.  At these peyote meetings, the
worshipers usually gather in a teepee at dusk and the ceremony passes
through a series of ritualistic stages.  During these rituals, a staff
and a rattle are passed around and the person who receives them leads in
singing peyote hymns and prayer.  Around midnight, peyote is ingested by
the worshipers and the singing, praying and drumming continues
throughout the night until dawn.  When the "buttons" of the plant are
eaten, or brewed into tea and imbibed, the user experiences
hallucinations.  The peyote plant produces "a warm and pleasant
euphoria, an agreeable point of view, relaxation, colorful visual
distortions, and a sense of timelessness that are conducive to the all-
night ceremony of the Native American Church."  Peyote Religion at 3.
Finally, at noon of the following day, all worshipers share in a
ceremonial feast.  See generally Peyote Religion at 327-336 (description
of peyote ritual); T. Hillerman, People of Darkness 153 (1980)
(description of Navajo peyote ritual).

The Native American Church combines elements of Christianity with
traditional Native American beliefs and the sacramental use of peyote.
Peyote Religion at 33; Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1485
(10th Cir.1989), cert. denied, --- U.S. ---, 110 S.Ct. 2208, 109 L.Ed.2d
535 (1990).  Although the religious use of peyote has existed for
centuries, the Peyote Religion's corporate form, the Native American
Church, was established in Oklahoma in 1918.  At that time, the leaders
of the Peyote Religion reasoned that an "incorporated" church would
provide greater protection from early attempts to suppress the use of
peyote for religious purposes.

While the Oklahoma Chapter of the Native American Church is
sentimentally referred to as the Mother Church, no single branch speaks
for the numerous branches throughout the United States.  Unlike more
traditional churches, the Native American Church is a non-hierarchical
church and has no central organization which dictates church policy.
The Native American Church consists of a number of loosely affiliated
local chapters.  Each chapter is responsible for establishing its own
charter, if it so chooses.  "Each congregation makes its own rules, just
as each meeting is conducted by its own roadman."  Peyote Religion at
334.  Nevertheless, the teachings of all the Native American Church
chapters are essentially the same.

"Church" refers to a body of believers and their shared practices,
rather than the existence of a formal structure or a membership roll.
Membership in the Native American Church derives from the sincerity of
one's beliefs and participation in its ceremonies.  Historically, the
church has been hospitable to and, in fact, has proselytized non-
Indians.  The vast majority of Native American Church congregations,
like most conventional congregations, maintains an "open door" policy
and does not exclude persons on the basis of their race.  Racial
restrictions to membership have never been a general part of Peyote
Religion or of the Native American Church. See Peyote Religion at 333-
34; State v. Whittingham, 19 Ariz.App. 27, 28, 504 P.2d 950, 951 (1973)
(membership to non-Indians is usually not refused), review denied, 110
Ariz. 279, 517 P.2d 1275, cert. denied, 417 U.S. 946, 94 S.Ct. 3071, 41
L.Ed.2d 667 (1974).  Although one branch of the Native American Church,
the Native American Church of North America, is known to restrict
membership to Native Americans, most other branches of the Native
American Church do not.  As a result, non-Indian members are accepted
within the Native American Church. [footnote 3]

Since attending his first ceremony of the Native American Church at
Taos, New Mexico, in 1981, Mr. Boyll has been, and continues to be, an
active member of the Native American Church.  In fact, while living in
Mill Valley, California, from 1981 until 1989, Mr. Boyll participated in
ceremonies of the Native American Church an average of once every two to
three weeks.  Mr.  Boyll often sponsored these meetings or participated
as a drummer, cedarman or fireman.  He sincerely believes in the
teachings and practices of the Native American Church. [footnote 4]  He
has only used peyote in connection with bona fide religious purposes and
has never been excluded from the Native American Church because of his
non-Indian race.

In 1989, motivated in part by his commitment to the Native American
Church, Mr. Boyll moved to New Mexico.  He continues his active
participation in meetings of Native American Church congregations in
northern New Mexico and southern Colorado.  During one specific peyote
meeting, Mr. Boyll was explicitly recognized as a member of the Native
American Church by Rutherford Loneman, a well-known roadman who is also
a former Vice-Chairman of the Native American Church in Oklahoma.  Yet,
Mr. Boyll has always considered himself a member of the Native American
Church rather than of a specific branch.

The act of traveling to the place where peyote is harvested is
considered an act of piety which has its own rewards.  The long, sacred
pilgrimage to harvest peyote is considered to be one of the most
important aboriginal traditions of the Peyote Religion.  Peyote Religion
at 31-32 ("When the [peyote]-seekers arrive [back] at their homes, the
people turn out to welcome the plants with music, and a festival....").
Peyote is grown only in northern Mexico and the Rio Grande Valley of
southern Texas.  Peyote is not grown anywhere else and its growth area,
especially in the United States, is being considerably depleted.  Peyote
Religion at 334-35.

Because the peyote fields in Texas are depleted, Mr. Boyll went on a
"pilgrimage" to Mexico to obtain peyote for himself and members of the
congregations with whom he worships.  From Mexico, Mr. Boy11 mailed the
peyote to his post office box in San Cristobal, New Mexico, to avoid
violating Texas law, which restricts religious possession and use of
peyote only to Native Americans.  See Tex. Health & Safety Code Anno.
481.111 (Vernon 1989).  On April 27, 1990, Mr. Boyll picked up the
parcel of peyote from the post office in San Cristobal, New Mexico.  He
was on his way to deliver the peyote to Tellus Goodmorning, an elder of
the Taos Pueblo and nationally respected roadman, when he was arrested.

The Court will first address whether 21 C.F.R.  1307.21 applies to all
sincere menders of the Native American Church, including Mr. Boyll, or
whether it excludes non-Indian members. Stated differently, does the
federal exemption place a racial restriction on membership in the Native
American Church?

As far back as the late 18th century, efforts were being made to
restrict the ceremonial use of peyote.  See Peyote Religion at 128-147.
However, not until the popularity of psychedelic drugs in the 1960's did
Congress restrict the possession, consumption and sale of peyote.  See
Drug Abuse Control Amendments of 1965, 79 Stat. 226  3(a).  Thereafter,
for the first time, peyote was classified as a Schedule I controlled
substance.  See Controlled Substance Act of 1970, 21 U.S.C.  812(c),
Schedule I(c)(12).  But Congress never intended to prohibit the
ceremonial use of peyote.  See Kennedy v. Bureau of Narcotics &
Dangerous Drugs, 459 F.2d 415, 419 (9th Cir.1972), cert. denied, 409
U.S. 1115, 93 S.Ct. 901, 34 L.Ed.2d 699 (1973); Peyote Way Church of
God, Inc. v. Meese, 698 F.Supp. 1342, 1346 (N.D.Tex.1988); Native
American Church of New York v. United States, 468 F.Supp. 1247, 1449-51
(S.D.N.Y.1979), aff'd, 633 F.2d 205 (2d Cir.1980); People v.  Woody, 61
Cal.2d 716, 40 Cal.Rptr. 69, 73-74, 394 P.2d 813, 817-18 (1964).  In
implementing regulations, Congress exempted the religious use of peyote
by members of the Native American Church.  See 11 Cong.Rec. 14608, 15977
(1965); see also Native American Church, 468 F.Supp. at 1249-50; Peyote
Way Church of God, lnc. v. Smith, 742 F.2d 193, 197 n. 15 (5th
Cir.1984). The Drug Enforcement Administration regulation relating to
the listing of peyote as a controlled substance provides:

SPECIAL EXEMPT PERSONS

1307.31  Native American Church. The listing of peyote as a controlled
substance [under federal law) 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. 21 C.F.R.  1307.31.  As many as three states have
similar statutory or judicially crafted exemptions in their drug laws
for the religious use of peyote.  N.M.Stat.Ann. 30-31-6(D) (Supp.1989);
Colo.Rev.Stat. 12-22-317(3) (1990); Ariz.Rev.Stat.Ann. 13-3402(B)(l)-(3)
(1989); Kan.Stat.Ann. 65-4116(c)(8) (1985); Utah Code Ann. 58-37-3(3)
(1986).

"The language of a regulation or statute is the starting point for its
interpretation."  Dyer v. United States, 832 F.2d 1062, 1066 (9th
Cir.1987) (citing Consumer Product Safety Comm'n v. GTE Sylvania, Inc.,
447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)).  "The
plain meaning governs unless a clearly expressed legislative intent is
to the contrary."  Id.  "When we find the terms of a statute
unambiguous, judicial inquiry is complete." Rubin v. United States, 449
U.S. 424 (1981); see also, e.g., Wilson v. Stocker, 819 F.2d 943, 948
(10th Cir.1987).

The language of 21 C.F.R. 1307.31 is clear, unambiguous and wholly
consistent with the regulation's history and purpose.  The plain
language of 21 C.F.R. 1307.31 exempts all worshipers engaged "in bona
fide religious ceremonies of the Native American Church."  The
regulation plainly declares Congress' purpose to exempt Native American
Church members.  Nowhere is it even suggested that the exemption applies
only to Indian members of the Native American Church.  Had the intent
been to exclude non- Indian members, as the United States argues, the
language of the exemption would have so clearly provided.  Indeed, the
federal peyote exemption makes no reference whatsoever to a racial
exclusion.  Compare 21 C.F.R. 1307-31 & N.M.Stat.Ann. 30-316(D)
(Supp.1989) with Tex.Health & Safety Code Anno. 481.111 (Vernon 1989)
(including the language "[t]he 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 plain language of the
federal peyote exemption applies to all members of the Native American
Church, regardless of race.  Cf. Native American Church, 468 F.Supp. at
1251 (rejecting the argument that the exemption should apply to "Indian"
churches alone); Kennedy, 459 F.2d at 416-17 (rejecting the Government's
proposed racial reading of the exemption: "[w]e cannot say that the
Government has a lesser or different interest in protecting the health
of Indians than it has in protecting the health of non-Indians").

A racially neutral reading of the exemption is consistent not only with
the racially neutral language of the exemption but also with its
legislative history.  During hearings on the Controlled Substances Act
of 1970, a representative of the Bureau of Narcotics and Dangerous
Drugs, presently the Drug Enforcement Agency, explained the rationale
for the special exemption and assured Congress that the exemption would
not be affected by the new legislation:

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 will continue the
exemption.  (emphasis added). Native American Church, 468 F.Supp. at
1251 (quoting Drug Abuse Control Amendments of 1970, Hearing before the
Subcommittee on Public Health & Welfare of the Committee on Interstate
and Foreign Commerce, House of Representatives, 91st Cong., 2d Sess.
117-18 (1970)).

Clearly, the nature and history of the Native American Church played a
significant role in the promulgation of 21 C.F.R. 1307.31.  As the
uncontradicted evidence in this case shows, the history of the Native
American Church attests to the fact that non-Indian worshipers have
always been, and continue to be, active and sincere members of the
Native American Church.

The Government's racially restrictive reading and application of the
exemption reveals a fundamental misunderstanding of the history and
present structure of the Native American Church.  Indeed, the Drug
Enforcement Administration's own rationale acknowledges that the
exemption is not based on the racial makeup of the Native American
Church membership.  See Olsen v. Drug Enforcement Admin., 878 F.2d 1458,
1465-1468 (D.C.Cir.1989) (final order of the Drug Enforcement
Administration in connection with the exemption makes no mention of any
distinction between Indian and non-Indian members of the Native American
Church).  While there may exist some legitimate support for the argument
that Congress never intended to extend the exemption to non-Native
American Church members, see Peyote Way Church of God, Inc. v.
Thornburgh, 922 F.2d 1210 (5th Cir.1991); but see Native American
Church, 468 F.Supp. at 124951, the plain language of the exemption and
the legislative history clearly support this Court's finding that
Congress intended the exemption to apply to all members of the Native
American Church, Indian and non-Indian alike.

The Court also finds persuasive Mr. Boyll's argument that to construe
the racially neutral language of the exemption "to provide only racially
discriminatory protection would place the exemption unnecessarily in
direct conflict with the first amendment."  Such a consequence would, at
the very least, violate the canon of statutory construction that
"[f]ederal statutes are to be construed as to avoid serious doubts of
their constitutionality."  Int'l Ass'n of Machinists v. Street, 367 U.S.
740, 749, (1961); see also Hooper v. California, 155 U.S. 648 (1895);
United States v. Security Industrial Bank, 459 U.S. 70 (1982).  "[T]his
principle is fully applicable to cases such as the instant one, in which
a ... constitutionally suspect statutory interpretation is embodied in
an administrative regulation."  Rust v. Sullivan, --- U.S. ---, 111
S.Ct. 1759, 1778 (1991) (Blackmun, J., dissenting).

The Court will next address the constitutional question of whether the
indictment violates Mr. Boyll's First Amendment right to freely exercise
his religion.  It is disingenuous for the Government to contend that its
racially restrictive reading of 21 C.F.R. 1307.31 -- which would
restrict religious freedom through the imposition of a racial exclusion
-- does not give rise to valid constitutional concerns.  Since the use
of peyote by Native American Church members is the very essence of their
religious beliefs, the proposed racially restrictive reading of 21
C.F.R. 1307.31 would have the sure effect of imposing a racial exclusion
to membership in the Native American Church itself.  To exclude
individuals of a particular race from being members of a recognized
religious faith is offensive to the very heart of the First Amendment.
See Walz v. Tax Comm'n of New York, 397 U.S. 664, 668-69 (1970) (the
First Amendment's Establishment Clause ensures that governmental
interference with religion will not be tolerated).  In fact, there can
be no more excessive entanglement of Government with religion than the
Government's attempt to impose a racial restriction to membership in a
religious organization.  The decision as to who can and who cannot be
members of the Native American Church is an internal church judgment
which the First Amendment shields from governmental interference.  Cf.
Paul v. Watchtower Bible & Tract Society, 819 F.2d 875, 878, n. 1. (9th
Cir.) (constitutionally improper for government to resolve a dispute
about religious doctrine or practices), cert. denied, 484 U.S. 926
(1987).  It is one thing for a local branch of the Native American
Church to adopt its own restrictions on membership, but it is entirely
another for the Government to restrict membership in a religious
organization on the basis of race.  Any such attempt to restrict
religious liberties along racial lines would not only be a contemptuous
affront to the First Amendment guarantee of freedom of religion but also
to the Fourteenth Amendment right to equal justice under the law.

Applying the above-mentioned canon of statutory construction, we find
that the United States' racially restrictive reading of 21 C.F.R.
1307.31 does raise the sort of "grave and doubtful constitutional
questions," United States v. Delaware & Hudson Co., 213 U.S. 366, 408
(1909), that would lead this Court to assume Congress did not intend
such an interpretation.  Federal Trade Comm'n v. American Tobacco Co.,
264 U.S. 298, 305-307 (1924) (assuming Congress legislates in the light
of constitutional limitations).

The Free Exercise Clause of the First Amendment provides that "Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging of freedom, ... or
the right of the people to assemble...."  U.S. Const.Amend. I.  While
the freedom to act upon religious beliefs is not absolute, "only those
interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion."
Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 1533, 32 L.Ed.2d
15 (1972).  Traditional free exercise jurisprudence has long held that
in order for government to substantially burden religiously motivated
conduct, Government must justify such restrictions by a compelling state
interest and use means narrowly tailored to achieve that interest.  See
Hernandez v. Commisioner, 490 U.S. 680, 699 (1989); United States v.
Lee, 455 U.S. 252, 257-58 (1982); Thomas v. Review Bd. of Indiana
Employment Secur. Div., 450 U.S. 707, 717-19 (1981); Sherbert v. Verner,
374 U.S. 398, 403 (1963).

In order for government action to withstand a challenge under the Free
Exercise Clause, the action must satisfy the two- step analysis of the
compelling interest test.  The Court must first determine whether the
Government's action "imposes any burden on the free exercise of
[defendant]'s religion."  Sherbert, 374 U.S. at 403.  Then, if such
burden exists, the Court must "consider whether some compelling state
interest ... justifies the substantial infringement of [defendant]'s
First Amendment right." Id. at 405.  "The compelling interest test
reflects the First Amendment's mandate of preserving religious liberty
to the fullest extent possible in a pluralistic society."  Employment
Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872
(1990) (O'Connor, J., concurring).

Recently, the Supreme Court in Employment Division, Dept. of Human
Resources of Oregon v. Smith, 494 U.S. 872 (1990) ["Smith"], elected to
abandon the compelling interest test in cases involving a "neutral,
generally applicable [criminal] law," reasoning that the application of
such a statute does not implicate First Amendment concerns.
Accordingly, without the benefit of any constitutional scrutiny at all,
the Court held that Oregon's across-the-board prohibition against peyote
was constitutional.

This Court is convinced that 21 C.F.R. 1307.31 is "specifically directed
to religious practices and therefore not within the ambit of Smith."
Salvation Army v. Dept. of Community Affairs of State of New Jersey, 919
F.2d 183, 194, 204 (3d Cir.1990) (Becker, J., concurring).  The Drug
Enforcement Agency regulation in the present case, unlike the statute in
Smith, is neither neutral nor generally applicable.  Indeed, the plain
language of the exemption speaks directly to "bona fide religious
ceremonies of the Native American Church."  Therefore, this Court will
proceed to apply the traditional compelling interest test.  See Cf. Id.
110 S.Ct. at 1603 ("where the [Government] has in place a system of
individual exemptions, it may not refuse to extend that system to cases
of 'religious hardships' without compelling reason").

With respect to the first step of the analysis, it is uncontradicted
that the racially restrictive interpretation of 21 C.F.R. 1307.31 would
impose a substantial burden on Mr. Boyll's free exercise of religion.
On this issue, the Court's findings of fact and conclusions of law are
not very different from those in Woody, 40 Cal.Rptr. at 72, 74, which
concluded:

An examination of the record as to the nature of peyote and its role in
the religion practiced by defendants as [Indian and non-Indian] members
of the Native American Church ... compels the conclusion that the
[racially restrictive] prohibition most seriously infringes upon the
observance of the religion.

The record thus establishes that the [indictment for] ... the use of
peyote results in a virtual inhibition of the practice of defendants'
religion. Id.

Indian and non-Indian "believers who worship at the Native American
Church cannot freely exercise their religious beliefs absent the use of
peyote."  Whittingham, 19 Ariz.App. at 29.  "There is no dispute that
[the] criminal prohibition of peyote places a severe burden on the
ability of [Defendant] to freely exercise [his] religion."  Smith 110
S.Ct. at 1613 (O'Connor, J., concurring); Peyote Way Church of God, 742
F.2d at 200-01.  Additionally, the Court finds that Mr. Boyll's trip to
Mexico to obtain peyote is an integral part of the Peyote Religion
practiced by the Native American Church.  Such a substantial
infringement necessarily triggers further First Amendment scrutiny.

The Court must next "consider whether some compelling [governmental]
interest ... justifies the substantial infringement of [defendant]'s
First Amendment right."  Sherbert, 374 U.S. at 406.  While the Court is
well aware that drug abuse is "one of the greatest problems affecting
the health and welfare of our population" and, thus, "one of the most
serious problems confronting our society today," National Treasury
Employees Union v. Von Raab, 489 U.S. 656, 668, 674 (1989), this
amorphous problem, without more, cannot justify the serious infringement
on the observance of religion.

First, the United States has failed to present any evidence of a
compelling interest to justify its actions in the present case.

"In the absence of evidence, we cannot simply assume that the
psychedelic is so baneful that its use must be prohibited to a group of
[non-Indian] members but poses no equal threat when used by [Indian]
members of the Native American Church."  Peyote Way Church of God, 742
F.2d at 201.  In fact, in light of the absence of factual support and
the scarcity of legal support for the United States' opposition to
Defendant's motions to dismiss, this Court cannot help but believe that
the present prosecution is, at best, an overreaction driven by political
passions or, at worst, influenced by religious and racial insensitivity,
if not outright hostility.

Finally, the existence of 21 C.F.R. 1307.31 itself, negates the
existence of a compelling governmental interest in prosecuting non-
Indian members of the Native American Church for their religious use of
peyote.  Id. ("The exemption granted both by federal and [state] law to
the ritual use of peyote by the Native American Church tends ... to
negate the existence of a compelling [governmental] interest in the same
use of it").  Indeed, the federal exemption explicitly establishes a
governmental interest in preserving the exemption of peyote as a
controlled substance for its ritual use by Indian and non-Indian members
of the Native American Church.  The only compelling interest in the
present case is Congress' considered and continued conviction that the
use of peyote in the Native American Church is the kind of free exercise
of religion the First Amendment protects.  See, e.g., Native American
Church, 468 F.Supp. at 1249-50; Peyote Religion, 128-147.  Finding no
compelling interest to justify the constitutional infringement at issue,
the Court need not reach the often critical question of balancing two
competing interests.

Congress has articulated an unequivocal federal policy protecting the
right of the Native American Church and its members to worship, possess
and use peyote in bona fide religious ceremonies.  This policy arises
out of our country's recognition of the importance of individual
freedom.  For, the right to free religious expression embodies a
precious heritage of our history.  In a mass society, which presses at
every point toward conformity, the protection of a self-expression,
however unique, of the individual and the group become ever more
important.  The varying currents of the subcultures that flow into the
mainstream of our national life give it depth and beauty. Woody, 40
Cal.Rptr. at 77; see also 111 Cong.Rec. 15977 (1965).  The court in
Woody eloquently speaks to the freedom of the individual.

Individual freedom, whether it be freedom of religion, expression or
association, has been particularly important to maintaining the
culturally diverse character of New Mexico.  Here, we celebrate the
right of the individual to revel in the passions of the spirit.  The
survival of this right owes much to the protection afforded by the First
Amendment, which has allowed New Mexico's distinct cultures to learn
mutual respect for each other's jealously-guarded customs and
traditions.  Diversity is New Mexico's enchantment.

For the reasons set out in this Memorandum Opinion and Order, the Court
holds that, pursuant to 21 C.F.R. 1307.31 (1990), the classification of
peyote as a Schedule I controlled substance, see 21 U.S.C. 812(c),
Schedule I(c)(12), does not apply to the importation, possession or use
of peyote for bona fide ceremonial use by members of the Native American
Church, regardless of race.

Wherefore,

IT IS ORDERED, ADJUDGED AND DECREED that Defendant Robert Boyll's
motions to dismiss the indictment be and hereby are GRANTED.


[footnote 1]  This Court is mindful that "[i]t is not within the
judicial ken to question the centrality of particular beliefs or
practices to a faith, or the validity of  particular litigants
interpretation of those creeds." Hernandez v. Commissioner, 490 U.S.
680, 699 (1989).

[footnote 2]  Mr. Omer C. Stewart testified at the evidentiary hearing
in this case.  He is a distinguished scholar of the Peyote Religion.
The Court found his testimony invaluable.  Many of the Court's findings
of fact relating to the Peyote Religion and the Native American Church
can be attributed to Professor Stewart's testimony and his well-known
book on the subject which was admitted into evidence as Defendant's
exhibit 1.

[footnote 3]  See Stacy Diven's affidavit (August 17, 1990) ("During my
fifteen years as a member of the Native American Church, I have
encountered isolated instances of opposition by Indian members of the
church to non-Indian participation. However, in my experience, most
Indian members of the Native American Church accept sincere white
worshipers willingly"); John Kimmey's affidavit (August 3, 1990) ("The
attempt by some members of the Native American Church and by the
government to restrict membership in the church to Indians is foreign to
the basic beliefs of many Native American Church members in the American
Church of God [the Taos, N.M. branch] and in other branches of the
Native American Church. Non-Indians have been and continue to be full,
legitimate members both of the American Church of God and of other
branches of the Native American Church."); Alden Naranjo's affidavit
(August 15, 1990) ("As the son of practicing members of the Native
American Church, I have been taught since early childhood that the door
to our church is open to all faithful, sincere, and believing persons.
Many non-Indians in my experience are and continue to be full legitimate
members of the Native American Church.  I regard any attempt to restrict
membership to Indians as misguided").

[footnote 4]  See Lawrence Boyll's affidavit (August 2, 1990) (attesting
to his sincere participation in the Native American Church); Stacy
Diven's affidavit (Aug. 17, 1990) (same); Jimmy Reyna's affidavit (Aug.
1, 1990) (same); John Kimmey's affidavit (Aug. 3, 1990) (same); Alden
Naranjo's affidavit (Aug. 15, 1990) (same).