WPF Peyote, Conservation, and Native American Religious Freedom

By moda00 · Apr 3, 2008 ·
Rating:
3/5,
  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)

    CAUSES
    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

    Over-harvesting:
    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

    Summary:
    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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