1333
U.S. v. BOYLL
Cite as 774 F.Supp. 133 (D.N.M. 1991)

 
                UNITED STATES of America, Plaintiff, 
 
                                v. 
 
                 Robert Lawrence BOYLL, Defendant. 
 
                      Crim. No. 90-207-JB. 
 
                   United States District Court, 
                          D. New Mexico. 
 
                          Sept. 3, 1991 
 
     Non-Indian member of Native American church was indicted for 
importing peyote through mail and possessing it with intent to 
distribute.  He moved to dismiss.  The District Court, Burciaga, 
Chief Judge, held that: (1) permitting Indians' nondrug use of 
peyote in bona fide religious ceremonies of Native American 
church, but prohibiting such use by non-Indians, would violate 
free exercise and equal protection clauses; (2) compelling 
interest test applied to free exercise challenge to prosecution 
of non-Indian member, and (3) prosecution would violate free 
exercise clause. 
 
     Motions granted. 
 
1.   Drugs and Narcotics 46 
     Exemption permitting nondrug use of peyote in bona fide 
religious ceremonies of Native American Church applies to all 
members regardless of race.  Comprehensive Drug Abuse Prevention 
and Control Act of 1970,  202(c), Schedule I(c)(12), as amended, 
21 U.S.C.A.  812(c), Schedule I(c)(12); U.S.C.A. Const.Amends. 
1, 14. 
 
2.   Constitutional Law  84.5(19), 250.1(1) 
     Drugs and Narcotics  46 
     Permitting non-drug use of peyote in bona fide religious 
ceremonies by Indian members of Native American church, but 
prohibiting the same use by non-Indian members, would violate 
free exercise and equal protection clauses; such an 
interpretation of exemption for nondrug use of peyote would have 
effect of imposing racial exclusion to membership in the church 
itself.  U.S.C.A. Const.Amends. 1, 14. 

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774 FEDERAL SUPPLEMENT

 
3.   Constitutional Law 84.5(19) 
     Exemption permitting nondrug use of peyote in bona fide 
religious ceremonies of Native American Church is specifically 
directed to religious practices, is not neutral or generally 
applicable, and, therefore, is not within United States Supreme 
Court's Smith decision abandoning free exercise clause's 
compelling interest test if the challenged law is neutral and 
generally applicable.  U.S.C.A. Const.Amend. 1. 
 
4.   Constitutional Law 84.5(19) 
     Drugs and Narcotics 46 
     Prohibiting non-Indian member of Native American Church from 
importing peyote through mail and possessing it with intent to 
distribute would impose substantial burden on free exercise of 
religion, was not justified by compelling governmental interest, 
and would violate free exercise clause.  U.S.C.A. Const.Amend. 1; 
Comprehensive Drug Abuse Prevention and Control Act of 1970,  
202(c), Schedule I(c)(12), as amended, 21 U.S.C.A.  812(c), 
Schedule I(c)(12). 
 
     David N. Williams, Asst. U.S. Atty., Albuquerque, N.M., for 
plaintiff. 
 
     Peter Schoenburg, Asst. Federal Public Defender, 
Albuquerque, N.M., for defendant. 
 
MEMORANDUM OPINION 
AND ORDER 
 
     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 

1335
U.S. v. BOYLL
Cite as 774 F.Supp. 1333 (D.N.M. 1991)

 
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 
 
-------------------- 
 
  [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, 109 S.Ct. 
  2136, 2149, 104 L.Ed.2d 766 (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. 

1336
744 FEDERAL SUPPLEMENT

 
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  

1337
U.S. v. BOYLL
Cite as 774 F.Supp. 1333 (D.N.M. 1991)

 
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, in- 
 
-------------------- 
 
  [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). 

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774 FEDERAL SUPPLEMENT

 
cluding 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? 
 
     [1]  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, 430, 
101 S.Ct. 698, 701-02, 66 L.Ed.2d 633 (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. 30-31-
6(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 

1339
U.S. v. BOYLL
Cite as 774 F.Supp. 1333 (D.N.M. 1991)

 
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 1249-
51, 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, 81 S.Ct. 1784, 1789-90, 6 L.Ed.2d 1141 (1961); see 
also Hooper v. California, 155 U.S. 648, 657, 15 S.Ct. 207, 211, 
39 L.Ed. 297 (1895); United States v. Security Industrial Bank, 
459 U.S. 70, 78, 103 S.Ct. 407, 412, 74 L.Ed.2d 235 (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, 114 L.Ed.2d 
233 (1991) (Blackmun, J., dissenting). 
 
     [2]  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 

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774 FEDERAL SUPPLEMENT

 
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, 90 S.Ct. 1409, 
1411-12, 25 L.Ed.2d 697 (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, 108 S.Ct. 
289, 98 L.Ed.2d 249 (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, 29 S.Ct. 527, 535, 53 
L.Ed. 836 (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, 44 S.Ct. 336, 337-
338, 68 L.Ed. 696 (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, 109 
S.Ct. 2136, 2148-49, 104 L.Ed.2d 766 (1989); United States v. 
Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055-56, 71 L.Ed.2d 
127 (1982); Thomas v. Review Bd. of Indiana Employment Secur. 
Div., 450 U.S. 707, 717-19, 101 S.Ct 1425, 1431-32, 67 L.Ed.2d 
624 (1981); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 
1793-94, 10 L.Ed.2d 965 (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, 83 S.Ct. at 1794.  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 406, 83 S.Ct. at 
1795.  "The compelling 

1341
U.S. v. BOYLL
Cite as 774 F.Supp. 1333 (D.N.M. 1991)

 
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, 110 S.Ct. 1595, 1613, 
108 L.Ed.2d 876 (1990) (O'Connor, J., concurring). 
 
     [3]  Recently, the Supreme Court in Employment Division, 
Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 
S.Ct. 1595, 1603, 108 L.Ed.2d 876 (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. 
 
     [4]  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, 394 P.2d at 816, 618, 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, 504 
P.2d at 952.  "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, 83 S.Ct. at 1795.  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, 109 
S.Ct. 1384, 1392, 1395, 103 L.Ed.2d 685 (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. 

1342
774 FEDERAL SUPPLEMENT

 
"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, 394 P.2d at 821; 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.