WPF Peyote, Conservation, and Native American Religious Freedom

By moda00 · Apr 3, 2008 ·
  1. moda00
    Thought this was a fascinating topic presented by Kevin Feeney at the WPF conference- some may be familiar with these issues already, but I was not. It is a great introduction to the unique issue of conservation of the peyote cacti, and legal precedents for such issues with regard to freedom of religion. It is a pretty comprehensive overview of these issues as they relate, and he also discussed a pretty thorough list of the options for proceeding and possible outcomes- although I would have liked to hear more about the possible solutions and have gone into a bit more detail there, it was necessary to get understand the basic background information. Also, since the Rising Researchers were given 10-15 minutes each to present, they tended to have to share what material they could at a fast pace and in a short time, relying heavily on the written PowerPoint slides to convey info as they read them or discussed the main points. I did manage to get most everything written down from the slides and verbal presentation, so this is a pretty thorough idea of what Feeney shared.

    Peyote, Conservation, and Indian Rights

    Kevin Feeney

    "Rising Researchers" March 23, 2008 Basel

    Recent History:
    1995- Native American Church of N. America declared peyote crisis- decreasing in size of buttons and increasing scarcity of plant
    Anecdotal reports suggest peyote may be in danger (no scientific studies of genetic diversity/health of current population- 90% growns
    in Texus and Mexico- issues w/ legal status, the fact that it is mainly on private property)

    Loss of Habitat:

    1. Root plowing- about 2 feet down to clear land for cattle grazing
    2. Oil development in TX
    3. Brush clearing- peyote likes other plants/brush as filter from sunlight- people clear brush to decrease snakes and scorpions for
    hunters' benefit

    Due to the limited amount of land from which to harvest, they harvest and re-harvest from same plants
    BUT peyote takes 10-12 years to mature and about 5 years to return to health and regrow crown fully- if stressed from too much
    harvesting and/or too early harvesting plant can die

    *Peyote is NOT protected under US Endangered Species Act*
    -passed in 1973 to protect animals/plants and accommodate ecosystems for their survival
    -requires research to be placed on list (peyote lacks)
    -protection of plants is only on federal land- BUT since TX as a state recognizes the ESA as well as the federal gov't, it would apply
    on both private and public lands if passed
    -protection for plants very limited compared to protections for animals

    E. S. Act was overturned, then restored
    RFRA- the Compelling Interest Test 1963 and reaffirmed 1990- Free exercise of religious issues
    Sherbert vs. Verner: 3 part test:
    1. Substantial religious interest
    2. Compelling government interest
    3. Can government's interests be met with less intrusion on religious practices and freedom?

    If peyote is listed:
    -Peyotists may rely on RFRA defense and say that its listing is an undue burden on their religious freedom

    If RFRA raised as affirmative defense:
    -Government must show compelling interest in protecting species (but also seems to have compelling interest
    to restrict the species, so this causes a conflict in many ways)

    Idea of less or least restrictive means:
    Ex. Bald Eagle- 1st listed 1940
    Permit system est. in 1962 for American Indians/Native Americans to apply to receive eagle feathers or apply to take eagles
    from the wild- the latter has never been granted/approved

    Successful exemption in above case??

    -despite this exemption, eagle resumes pop. and moved from endangered to threatened to delisted (success in this context)
    -the application process and protection of religious freedom, however, was less successful- for preserving traditions and timely
    ceremonies (such as burials in event of a death) wrong feathers sometimes given, not received in time as process could take
    months to years, as stated never approved to actually get their own birds for use

    ESA listing would be most likely be most protective option
    Listing will conflict with the practice of Peyotism
    Options -Permit system an option- but past had little success for those who were to benefit
    -Regulate harvestable size of plants (1-2 inches across?)
    -Salvage plants from lands to be developed
    -Acquire land to create a sanctuary (preserve genetic diversity)
    -Implement cultivation to lift strain on wild populations (100 Native Am. church branches- some oppose)

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