Mescaline - The Law

The Law

The legal history of mescaline and its primary source, peyote, is long and somewhat complicated. The ban on its use for recreational purposes is clear. It is classified as a Schedule I hallucinogen, meaning that there is no medical reason it may be possessed, sold, or used. Doing so may result in severe penalties, including imprisonment and heavy fines. However, peyote is a long-established part of the religious rituals of Native Americans. The founding of the NAC in the early twentieth century gave support to this practice by making peyote use part of an established religion, rather than just a cultural tradition. Declaring peyote use illegal in its religious setting puts the federal drug laws in opposition to First Amendment rights that guarantee freedom to practice one's religion. Because of these conflicts, the legal status of peyote use by Native Americans has changed several times since it first became an issue during the American Civil War era.

Religious Rights and Mescaline Regulations

New Mexico became the first state to outlaw the use of peyote, doing so in the 1920s. This law was changed in 1959 to allow Native Americans to use the substance during their religious ceremonies. Most states had no laws against peyote use or possession even into the 1950s and 1960s. At that time, dried buttons from the peyote cactus were available for purchase through mail-order catalogs. This sort of free marketing of the psychoactive cacti and their components slowed drastically after peyote was declared illegal throughout the United States in 1967. This decision was strengthened by the Comprehensive Drug Abuse Prevention and Control Act in 1970. The passage of the act identified peyote as a Schedule I hallucinogen. At that point, buying, selling, or using it became a serious crime for anyone except a member of the NAC participating in a legitimate religious ceremony. Even members of the NAC could be held accountable to the law for using peyote in any other setting or distributing it to people outside the church.

Peyote Law in Individual States

The role of peyote in the ancient religions of Native Americans makes for a confusing legal situation in modern times. Federal law allows the use of peyote in Native American religious ceremonies, but each state government has documented its own interpretation of the law. In Oregon and Arizona, the law exempts use with "sincere religious intent." Colorado, Minnesota, Nevada, and New Mexico require that users must be "members of a bona fide religious organization" in order to be exempt. Idaho, Texas, and Wyoming require that users be members of the NAC. Iowa, Idaho, Kansas, Oklahoma, South Dakota, and Wisconsin state that the peyote must be used "only within an NAC ceremony." Idaho and Texas require that in addition to NAC membership, users must be of Native American descent. In Kansas, the law adds that prisoners are not protected by the exemption, even if they are members of the NAC.

Texas requires people to be at least 25 percent Native American. This situation raises various issues, including the fact that some tribes are not recognized officially by both state and federal authorities. Also, there is a controversy about what percentage of Native American ancestry should be required or if any should be required at all. Such issues remind people of the so-called Jim Crow laws, now struck down, that once determined who was considered to be African American and who was not.

Another controversial issue is whether a non-native person can become a member of the NAC church. Some chapters of the NAC allow non-Native Americans to join, while others do not. Non-Native Americans who join the NAC are not protected from federal law even if state laws would allow them exemption. Both state and federal laws on this topic continue to be challenged, reconsidered, and changed. Cases involving the law and its exemptions often go all the way to the U.S. Supreme Court.

In 1978 the American Indian Religious Freedom Act was adopted. It was intended to protect the religious traditions of Native Americans. However, almost from the start, there were many challenges to it. In 1990 the U.S. Supreme Court heard the case Employment Division v. Smith. Ultimately, the court ruled that religious use of peyote by Native Americans was not protected by the First Amendment. Many religious groups and civil liberties activists protested this decision.

Eventually, the ruling was contradicted by the Religious Freedom Restoration Act of 1993 and the American Indian Religious Freedom Act Amendments (AIRFA). AIRFA, which was amended again in 1996, protected the rights of American Indians to use peyote in traditional, ceremonial ways in all of the fifty states. It states that the "use, possession, or transportation of peyote by an Indian for bona fide traditional ceremonial purposes in connection with the practice of a traditional Indian religion is lawful, and shall not be prohibited by the United States or any State."

In Texas, where the peyote cactus grows, the state government supervises its cultivation and hires a crew of experienced people, called peyoteros, to properly harvest, dry, and distribute the buttons to Native American churches. Many complex questions have come up about this conflict between enforcing drug laws and protecting freedom of religion. The various states continue to try to sort out these complexities, as they make their own laws and decisions about the transportation, possession, and use of peyote.

Penalties for Nonreligious Use

Aside from the exemptions made for members of the NAC, possession of peyote, mescaline, or any other Schedule I substance can result in a prison sentence ranging from one to twenty years, and fines ranging between one thousand to several thousand dollars. Selling peyote or mescaline, or possessing with the intent to sell, can result in fines ranging from $250,000 to several million dollars and prison sentences ranging from five years to life, depending on the circumstances. In Mexico, peyote is illegal even for use in religious ceremonies. In Canada, peyote and mescaline are restricted, and possession or use may lead to prison sentences of up to three years and fines of up to $4,000. Penalties for trafficking the drug are even more severe. The 1971 Convention on Psychotropic Substances declared an international ban on mescaline.