As the United States government became more involved in the control of drugs, the Native American Church faced possible legal issues regarding their use of the substance.
The Indian Religious Freedom Act of 1978, also called the American Indian Religious Freedom Act, was passed to provide legal protection for the Church’s use of peyote.
The controversy over peyote resulted in its legal classification as a controlled drug. Thus, only card-carrying members of the Native American Church are allowed to transport, possess, and use peyote for religious purposes.
Federal Exemption 21 cfr 1307.31 – 1993
Listing peyote as a controlled substance in Schedule 1 does not apply to the non-drug use of peyote in bonafide religious ceremonies of the ANNAC however, so members of the All Nations Native American Church using peyote are exempt from registration. Anyone who makes peyote for or distributes it to a Native American Church is required to obtain registration annually however and has to to comply with all other requirements by law.
While peyote is listed as a controlled substance in the act, a separate federal regulation 21 cfr 1307.31 (1989) exempts non drug use of peyote in religious ceremonies of a Native American Church. In light of Employment Division v. Smith 494 U.S. 872, 108 L. Ed.2d 876, 110 S.Ct 1595 (1990), states should consider including in Schedule 1 an exemption similar to that found in 21 cfr 1307.31 of the Uniform Controlled Substances Act of 1990 (U.L.A.) sec, 204.
These exemptions for religious (or spiritual) use do not insure freedom from prosecution however because the burden of proof still fall on the defendant, and providing of evidence of a spiritual practice is still often called into court. In Arizona, where the exemption has been upheld and is well known Native people are still subject sometimes persecuted due the scrutiny caused by the War on Drugs.
Possession and Sale of Peyote
In a prosecution for violation of this section, it is a defense that the peyote is being used or is intended for use:
1. In connection with the bonafide practice of a religious belief, and
2. As an integral part of a religious exercise, and
3. In a manner not dangerous to public health, safety or morals.
State by state Comparison
- Following is a state by state comparison of peyote statutes adapted from “The Entheogen Law Reporter”.
(If a state is not appearing below no explicit legislative exemptions were found concerning peyote)
With a Bonafide Religious Organization
AZ, CO, MN, NV, NM, OR
Within a Native American Church Ceremony
ID, IA, KS, OK, SD, WI
Native American Church Membership Required
KS, TX, WY
Native American Descent Required
On Reservation Only
Incarcerated Persons Not Exempt