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A nightmarish childhood experience moved James Warren "Flaming Eagle" Mooney to take up one of the oldest jobs in North American history. Once charged with a dozen felonies for giving peyote to 'non-Native Americans' in religious ceremonies, Mooney's legal battle culminated in a landmark court ruling that protected him from prosecution in
Utah courts. But Mooney's legal troubles are not over. The latest swords to hang over him are a brewing federal criminal case and a bill that could change Utah's drug law to forbid peyote use by non-American Indians.

James and Linda Mooney remember the date -- Oct. 10, 2000 -- because their youngest daughter was celebrating her 10th birthday. They returned from an afternoon lunch to a find a half-dozen patrol cars parked on the front lawn. Officers swarmed around the home the Mooneys also used as a church. A surprise search by the Utah County Major Crimes Task Force was well under way.

Amid the flurry of uniforms, badges and flashing lights, parents began to pull up in minivans and SUVs to drop off their kids for the birthday party. Linda Mooney remembers shuttling the children to a relative's house, trying to salvage the special day.

"I was just trying to keep the continuity for my daughter," she said. "She was scared to death that we were going to be taken away. She was crying in the car."

James Mooney watched as officers walked in and out of doors, upstairs then downstairs. "They ransacked our entire church. They took our donation slips and our donation records," Mooney said of the raid.

But what the officers were really after was inside a locked safe in the building's basement. According to Mooney, an officer said he would cut the safe open with a blow torch if Mooney wouldn't open it.

When Mooney acquiesced and opened the safe, officers found several paper sacks of dried cactus, harvested from southern Texas and shipped to Mooney by mail. They seized the more than 12,000 buttons of peyote, a plant classified by federal law as acontrolled substance.

The search of Mooney's home and church was a drug raid.

A medicine man's call

Mooney said he was in his 40s when Chief Little Dove called late one night and introduced herself as a Seminole tribal leader from Florida -- and a relative. She told Mooney he had been dedicated in his infancy to be a medicine man.

It was a tough sell to Mooney, who had been raised amid the Friday-night football games and homecoming dances of Californian suburbia. He later worked as a business consultant in Hawaii before settling in Utah. Mooney had been a member of the Church of Jesus Christ of Latter-day Saints since his baptism in 1971.

But Mooney said the chief's call came when his life was at its lowest point. He had lost his wife to cancer and slipped into manic-depression. He had acquired an addiction to prescribed lithium and lost his nine children to the state of Utah. At any other time in his life, Mooney might have just hung up the phone. That night, he listened.

Chief Little Dove told him that she came to know Mooney's grandparents during their annual visits to Orange Springs, Fla., for the tribe's Green Corn Ceremonies. She told Mooney his great-great-grandparents had been Seminole warriors who were uprooted in the 1830s from their native land in Florida and forced along the Trail of Tears through Tennessee and Missouri toward Oklahoma. They escaped from the trail and hid out in southern Missouri, eventually settling in the city of Washburn, about 10 miles north of the Arkansas border.

The chief said Mooney's grandparents had often spoken of a grandson who as a child was brutally killed and then miraculously brought back from the dead. The chief's words evoked in Mooney images and feelings -- mostly pain.

Mooney was born in a military hospital in Grass Valley, Calif. ; he was sent to live with his grandparents in Washburn at age 3 because of family problems in California. But the chief told Mooney that one day, as he played near a pond in Washburn, three young men attacked him. They beat him, sexually assaulted him, then dumped his body in the pond to drown the evidence of their crime. Mooney's grandmother discovered his lifeless body and fished it from the pond.

As the chief recounted the details, flickers of memory that Mooney had long attributed to hellish nightmares began to make sense.

"I remember hovering over my body," Mooney said of the incident. "My grandmother, who was a short, squat woman, was pounding on my chest."

Mooney said he also remembered a sudden, intense pain when he briefly regained consciousness as his grandmother repeatedly struck his chest like a bass drum. Then, Little Dove told him, he again passed out, breathing but unconscious. It wasn't until later that night, when his grandfather conducted a medicine ceremony in a smoky, earthen sweat lodge that Mooney finally opened his eyes.

Little Dove related that when the grandfather observed this miracle, he took the child in his arms, walked over coals he had taken from the fire, and then, standing in the center of the lodge, lifted the child to each of the cardinal directions, dedicating his grandson to the medicine of the sweat lodge.

Young James Mooney was to be a medicine man.

After pondering the story, Mooney believed it. He accepted the chief's charge to dedicate himself to the medicine of the sweat lodge. Beginning in the early 1990s, Mooney began to learn how to use the sweat lodge to treat various illnesses. He was counseled by LDS Church leaders in southern Utah on how to conduct the ceremonies in a way that did not conflict with his LDS beliefs or church doctrine.

And he gradually came to consider himself a medicine man.

'The medicine'

Mooney credits peyote with helping him overcome his lithium addiction and with hoisting him from manic-depression. He said first experiences with the small cactus were satisfying but did little to ease his condition.

"I didn't see any visions and I didn't have any magical experience other than that it heightened my awareness of myself and nature," Mooney said. "You could see the trueness of colors -- not hallucinations but things in their essence."

Mooney says his depression and addiction remained for a time because he was not being sufficiently sincere. "Peyote is like a truth serum," he said. "It forces you to be honest and open with yourself, and I wasn't willing or ready to confront things." He said it took him several weeks and four ceremonies to achieve that honesty, but he finally did so on a Navajo reservation in Page, Ariz.

"I went into that ceremony with the intention of overcoming the manic-depression," he said. When a Navajo medicine man gave him peyote that day, Mooney said he became violently ill and acutely aware of his weaknesses and insecurities. "The medicine first goes into your body and it shows you how sick you are," Mooney said. "Then you take the medicine when you are feeling the sickest, and it will heal you." But Mooney couldn't bring himself to accept the peyote a second time because "everything in me told me it was the peyote that had made me sick."

After three more ceremonies in which he vomited violently after ingesting peyote, he finally accepted the additional peyote that was intended to cure his physical and spiritual sickness.

"I remember grudgingly taking the medicine into my hand and placing it into my mouth," he said. "It takes an incredible amount of courage to take that medicine because it tastes so bad. But the moment I put it in my mouth I felt a peace that I've had ever since."

Mooney said the experience restored the balance he had been seeking in his life.

"Since that day, I have never used lithium again." He said the peyote cured the "chemical imbalance" that caused his depression.

Intrigued by his own experience with the medicine, Mooney began conducting peyote ceremonies, adding them to his repertoire of medicine skills. Though peyote is not a traditional Seminole medicine, Mooney said Chief Little Dove was "very supportive" of his use of the cactus in ceremonies before she died in 1996.

Mooney said the chief had charged him with three responsibilities: Learn and master the medicine of the sweat lodge; learn the making and use of the sacred prayer pipe; and never refuse anyone asking for help.

It was this last charge that would get Mooney into trouble with the law.

Fallen from grace

Mooney began volunteering his sweat lodge skills on behalf of the Utah Department of Corrections. He performed dozens of ceremonies in the same kind of squat, smoke-filled dwelling he credits with saving his own life as a toddler. He constructed a sweat lodge in a field near the chapel at the Central Utah Correctional Facility in Gunnison. He treated convicted drug addicts, rapists and murderers.

And he got results.

In 1993, then-Gov. Michael Leavitt honored Mooney with the Governor's Citizen's Award of Commendation. So successful was Mooney at reforming criminals through his ceremonies that he accepted a full-time job at the Department of Corrections in 1994, the same year he married longtime friend Linda Stone. The next year, the department awarded Mooney a Medal of Merit for his success in lowering recidivism -- the rate at which criminals return to prison after being released.

But Mooney said that his superiors disapproved of his use of peyote, as well as other elements of his American Indian culture. Though he said he never used peyote in connection with his state job, Mooney often conducted peyote ceremonies outside his home in Benjamin and on some private land near Heber for anyone who made a request.

Mooney was fired in 1997 for allegedly failing to return to work after a meeting. He promptly filed a wrongful termination suit against the state, later settling the suit for $50,000.

The same year he was fired, Mooney founded Oklevueha EarthWalks Native American Church of Utah. He continued to administer peyote to dozens of people of various races.

In 1994, Jareth McCarey was released from the Texas State Department of Corrections and met Mooney soon after. "This medicine helped me change my life," McCarey said. He said that with his demons quieted, he married, had children and otherwise grew up. "Everybody comes together in these ceremonies to overcome our fears, our past. The medicine we take helps us overcome them."

McCarey said he is of Choctaw Indian descent but, like most of Mooney's followers, is not a member of a federally recognized tribe. Mooney treated people from all walks of life. For six months, he administered peyote to a relative of a wealthy former Novell executive. People flocked to Mooney with their marital problems, their addictions and their insecurities.

Mooney treated them all. He had been charged to turn no one away.

Search and seizure

Mooney said the executive donated $500,000 to the church because he was so pleased with the results of the treatment. Mooney's decision to spend nearly all of that donation on a large home on six acres in Benjamin angered many of his followers and caused about half to leave. Mooney says he intended the 5,000 square-foot home, with its vast fields, its indoor swimming pool and its tennis court, to be a refuge for his followers. He paid $25,000 to have plans drawn up for a retreat that was to be built on the property.

"I estimated that we could have about 1,000 people coming there for help at a time," he said.

The Utah County Sheriff's Office was wary of Mooney and the Oklevueha EarthWalks when they first arrived. Deputy Tracy Jones said she investigated Mooney in 1997 after reports that he was administering peyote illegally.

"A gentlemen called and said his daughter had suffered what sounded like a bad trip after Mooney gave her peyote," Jones said. "I contacted her and she said that no, she was doing the best she ever had."

Jones conducted her investigation anyway and concluded that Mooney was indeed a member of a registered Native American church and that he was authorized to distribute peyote.

But a report from a second investigation, conducted three years later after a similar tip of illegal peyote use, concluded that Mooney's status as an authorized distributor of peyote had changed. Detective Robert Riding of the Utah County Sheriff's Office Major Crimes Task Force reported in an investigation in 2000 that Mooney had apparently lost his membership in the Florida Seminole tribe.

Mooney disputes this claim, saying that a schism within the tribe left some denying his membership and others still accepting him warmly. He said the Sheriff's Office had simply happened to speak with a member of the unfriendly faction.

Chief Turtle Dove, daughter of the chief who revealed Mooney's call to the medicine, currently heads the Osceola Band of the Seminole Tribe in Orange Springs, Fla., and said she supports Mooney. "Some people consider him a member and others do not," she said. "He is a member of my tribe."

Nevertheless, based on the negative findings in Riding's report, the Utah County Attorney's Office requested a warrant to search Mooney's home and seize peyote and other items.

Detective Jeff Robinson, who heads the investigations division of the Utah County Attorney's Office, stated in the warrant request that U.S. Postal Inspector Bill Susha had helped him identify a package addressed to Mooney from Texas that he suspected contained peyote. With the judge's approval and with warrant in hand, the Major Crimes Task Force coordinated its raid with the arrival of the package.

Officers stormed the Mooney home in Benjamin at about 1:30 p.m. They seized the newly arrived package, along with computers, donation slips and the peyote Mooney kept in a safe. Mooney said he warned the officers they were making a mistake.

Mooney told them the land and building were church property. The computers, the records and even the peyote were purchased with church funds. Utah County property records confirm Mooney's claim. Oklevueha EarthWalks Native American Church of Utah is listed as the owner of the property.

Robinson, who participated in the search, said he remembers calling a 4th District judge to decide whether to continue. "He confirmed the go-ahead," Robinson said.

Ancient rites, modern laws

Mooney and his wife Linda were charged in late November of 2000 with 15 drug felonies. Mooney was arrested at work; Linda was arrested as she drove to pick up her children from school.

Utah County Attorney Kay Bryson had hired a genealogist to research Mooney's ancestry. The Daily Herald's request for a copy of the report was denied, but Robinson said the report "did not find any evidence that (Mooney) was an Indian at all."

Mooney, however, knows his own roots. While he chooses not to affiliate with any federally recognized tribe, he says his American Indian lineage is secure. His ancestors simply chose, for good reason, not to declare it on birth certificates and census reports. He says that because his particular tribe had fair skin, and males developed chest and facial hair, some of his ancestors were able to pass as whites, and they did so deliberately to avoid anti-American Indian sentiment.

Rather than argue Mooney's lineage, prosecutors charged him with administering peyote to non-American Indians.

"There were really two issues," Robinson said, "the fact that he's not an Indian and that fact that he's giving peyote to non-Indians." Mooney was ultimately charged on grounds that those who received peyote from him were not American Indians. Mooney counters that because his non-American Indian followers were members of a Native American church, their use of peyote as a religious sacrament was justified. A racial test for religious experience is inappropriate, he believes.

With charges pending against him, Mooney sued the attorney's office in federal court over what he said was an illegal invasion of his home. But a federal judge refused to hear the case until the criminal charges were resolved.

Mooney remembers this time as especially hard on his family. "They labeled my wife and me as drug dealers," he said. "My children had to quit school. It's been pure hell on my children." Though his wife Linda remains a member with full fellowship in the LDS Church, Mooney was excommunicated shortly after he was charged with a crime.

He said he received several death threats. Spooked by the charges, Mooney's congregation dwindled. Donors quit giving money to what was being called a drug trafficking enterprise. The church declared bankruptcy.

A 4th District judge ruled in September 2001 that the couple could be prosecuted for illegally distributing peyote. The judge rejected Mooney's claim that a federal exemption that allowed members of a Native American church to use peyote in religious ceremonies applied to non-American Indians as well.

But the Utah Supreme Court agreed in early 2002 to hear Mooney's case. Mooney's attorney, Kathryn Collard, argued that membership in a Native American church -- not race -- should determine whether a person could use peyote in religious worship.

The court agreed.

"The bona fide religious use of peyote cannot serve as the basis for prosecuting members of the Native American Church under state law," the court stated in its opinion. The court interpreted Utah's vague drug law to mean that membership in a Native American church alone is grounds for peyote use in religious ceremonies.

With that ruling from its highest court, Utah joined a handful of states, including New York and Arizona, that allow the distribution of peyote to non-American Indians in religious ceremonies.

Within days of the ruling, several members of Oklevueha EarthWalks sat in a circle in downtown Salt Lake City and smoked sage bark in a peace pipe to celebrate the legal victory. The charges against the Mooneys were formally dropped the next month. Utah County Deputy Attorney David Wayment said he and Bryson decided not to appeal to the U.S. Supreme Court.

"We thought it was probably not an interesting enough federal question for them to take a look at," he said. "We decided not to spend any more time and money on it." Wayment said he disagreed with the Utah court's ruling because it left the state's anti-peyote law essentially unenforceable.

"If police pull a person over and find peyote, the person can just claim to be a member of the Native American Church," he said. "That is not a verifiable or even investigatable fact. Many of these Native American churches have no central record of membership."

Bureau of Indian Affairs Spokesman Gary Garrison agreed, describing the NAC as an informal amalgamation of local churches. "There is no larger governing bodies that keeps records," he said. "It's not like Baptists or Catholics where there's a formal structure."

Bryson and the Attorney General's Office vowed to propose legislation that would effectively do what the Utah Supreme Court did not -- prohibit an American Indian from administering peyote to a non-American Indian. The Utah Attorney General's Office drafted House Bill 306, which would amend Utah's Controlled Substances Act and shut down medicine men like Moody.

The bill passed the House shortly before the end of the 2005 legislative session but stalled in the Senate. It died when the session ended.

On the offensive

On April 27 of this year, Mooney filed a civil lawsuit in federal court against Utah County and several of its employees, demanding the return of his property. He also sought economic and punitive damages.

"When the SWAT team was removing those things from my house," Mooney said, "I told them that if they would put all the stuff back and just leave, I would pretend it never happened. They didn't listen, and now I've got to hold them accountable for it."

The lawsuit claims Utah County prosecutors "falsely, maliciously and in bad faith" charged the Mooneys as drug dealers and violated numerous state and federal laws. "The invasion of privacy was just so immense," said Linda Mooney, who is also a plaintiff in the suit.

But Wayment said because Utah law was ambiguous before the court's ruling in June, he and other prosecutors had made a fair interpretation of state law. He said prosecutorial immunity protected him and Bryson. "If we were to prosecute him now we would be in clear violation of the law," Wayment said. "At the time, we made a good-faith interpretation of the law."

But Randall Marshall, the Mooneys' attorney in the most recent lawsuit, said prosecutorial immunity only goes so far. "I think Mr. Wayment and Mr. Bryson have tried to hide behind prosecutorial immunity to do things that are out of line," he said. "They are thinking they can get away with it."

Attorneys from both sides are currently working toward a settlement.

Fight continues

Mooney may have prevailed in the state courts, but he may face a greater challenge if he is now charged under federal law.

Wayment said that while the Utah high court ruling protects Mooney against future prosecution from state agencies, Mooney may still be charged for breaking federal laws. "The Utah Supreme Court's decision is not binding on the federal system," he said.

And the federal system is apparently hard at work.

Months after the Utah Supreme Court's ruling, prosecutors still haven't returned the items they seized in the raid of Mooney's home and church. Mooney filed a petition in early April for the return of property seized during the raid, but Wayment said the issue is now out of his hands. He said that within weeks of the Utah Supreme Court's ruling in Mooney's favor, the Utah County Attorney's Office received a subpoena from a federal grand jury for most of the items seized in the 2000 raid.

"If we had the peyote, we would have turned it over," Wayment said.

Detective Jeff Robinson said Mooney can expect an indictment from a federal grand jury soon as culmination of a Drug Enforcement Agency investigation. "They're just about done with their investigation," he said. "We feel confident they will indict."

Few who are familiar with the grand jury system would disagree. Grand jury proceedings consider only the prosecution's side; lawyers for the accused are typically not even present. Only evidence against a person is considered. As a result, the standard for attaining an indictment is low. Whether charges can hold up is another matter entirely.

Robinson said federal officials were "not happy" with the Utah Supreme Court's ruling.

Wayment says federal law is more stringent than Utah's regarding peyote use. He said it allows only members of a recognized federal tribe to possess or consume peyote.

Marshall, Mooney's attorney, said that if the fight goes federal, the definition of "Indian" will be at the center of the debate.

"Do you have to be a member of a federally recognized tribe -- which is nothing but political designation -- to practice your religion?" he said. "There are plenty of people with Native American blood who are not members of federally recognized tribes. Does that mean they are not Indians?" Marshall said that if Mooney is charged, the case could end up before the U.S. Supreme Court, which has been cool to the religion argument. Past rulings classified peyote ceremonies as "cultural," which may make it more difficult to defend.

That court ruled in 1990 that states could restrict religious practices like peyote use that might conflict with state law. It also denied First Amendment protection to people who, like Mooney, use peyote on religious grounds. If the U.S. Supreme Court were to decide differently in Mooney's case, it would indeed be a landmark and revolutionary ruling from the court.

In addition to a possible federal fight, Mooney faces the prospect of another peyote-related bill at Utah's 2006 legislative session. Dave Johnson, legislative liaison from the Utah Attorney General's Office, said his office would almost certainly push for such legislation.

"I'd say there's about a 95 percent chance that we will," he said. "The bill passed the Utah House by a wide margin and just didn't pass the Senate. You don't get much closer than that."

Mooney said he simply wants to be left alone.

"I just want to sit in circles and do the medicine I've been dedicated to," he said. "I want to honor my heritage by fulfilling the commitments I've made to my grandparents, tribal leaders, and to the people who have allowed me to have such a wonderful life. When I realized how powerful the ceremony was in my own life, I immediately wanted to take it to everyone to share it. Manic-depression is one of the underlying reasons for people being addicted or incarcerated. I want people to know there is a way to be cured of the afflictions that most people think cannot be cured or changed."

Nick Nelson can be reached at 344-2559 or nnelson@heraldextra.com.

Peyote and peyote law

When Spanish explorers first stepped onto America's soil, several tribes in northern Mexico had already used peyote for a dozen generations.

Today, peyote grows chiefly in northern Mexico and south Texas. The plant is a small, woolly cactus shaped like a button and is traditionally consumed either in tea made from dried buttons or by swallowing the buttons. Along with causing its user to become violently ill, peyote eventually results in a feeling of intense well-being and produces a number of other psychological effects, including hallucinations and richly colored visions.

In federal law, peyote is listed as a Schedule 1 controlled substance. Schedule 1 is for substances with hallucinogenic properties that are thought to have high potential for abuse.

Robert Paiz, spokesman for the Houston division of the U.S. Drug Enforcement Agency, said distributors of peyote are required to register with the DEA. "The primary restriction is that they distribute only to Native Americans and that they distribute for religious rites," he said.

The U.S. Drug Enforcement Agency reports only a handful of registered distributors who are permitted to sell peyote, and sell only to persons who can prove at least one-quarter blood lineage to a Native American tribe.

Medicine men who live too far from the Texan plains to harvest their own peyote purchase it from such distributors, who must follow regulations from the DEA and the Texas Department of Public Safety. Peyote can be mailed using the U.S. Postal Service if both the distributor and the purchaser of the peyote meet the government's requirements.

Salvador Johnson, a peyote distributor in Mirando City, Texas, said the DEA has pressured him in recent years to be more selective in deciding to whom he should sell peyote. He said that while membership in a Native American church used to be sufficient, his clients must now prove American Indian ancestry.

"We started asking for tribal enrollment cards and certificates of Indian Blood," Johnson said. "That is the only way we can prove a person is who he says he is."

A federal statute limits peyote use to "Indians" who use it in "bona fide religious ceremonies."

In deciding James "Flaming Eagle" Mooney's case, the Utah Supreme Court had a lot of latitude. The state's drug laws prohibit a long list of controlled substances, but allowed for unspecified "exceptions" and "exemptions." The court had at least two exemptions to choose from -- one in the federal code and another in a DEA regulation. The first exemption would have limited peyote use to members of federally recognized tribe. The second -- the DEA regulation -- allows peyote use among members of the Native American Church. But despite the wording of its regulation, the DEA has traditionally interpreted its regulation to mean that only members of federally recognized tribes are exempt.

The Utah Supreme Court chose the DEA's exemption but rejected the DEA's interpretation. The court ruled that any member of a Native American church could consume peyote as part of a "bona fide religious ceremony."

The roundabout ruling -- which rejected the DEA's interpretation of it own regulation -- raised eyebrows among experts on federal Indian law like Kevin Worthen, dean of Brigham Young University's J. Reuben Clark Law School.

"The reasoning for me was a bit surprising," Worthen said of the ruling. "The court has done it in an interesting way and not the most straight-line fashion, but it is legitimate for them to do that."

Worthen said the Utah court's ruling carries no legal weight in federal courts. In other words, a non-American Indian member of a Native American church might be free to consume peyote in religious ceremonies under Utah law, but he could still be charged in federal courts for breaking federal laws.

The U.S. Supreme Court has ruled consistently that peyote is not protected under the First Amendment's guarantee of free exercise of religion. Even Utah's Supreme Court was careful to avoid citing the First Amendment in making its ruling.

Last month, the U.S. Supreme Court agreed to hear a case that could have bearing on federal peyote law. The case pits the federal drug law against the Religious Freedom Restoration Act of 1993, a law that requires the government to show a compelling interest when limiting a person's religious freedoms.

The case will decide whether American members of the Brazilian religious sect O Centro Espirita Beneficiente Uniao Do Vegetal should be permitted to drink a hallucinogenic tea as part of their worship. Lower courts have so far sided with the church.

This story appeared in The Daily Herald on page A1.
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