Narcotics case dismissed

LIHUE — In what members are calling a victory for human rights, a narcotics case against the minister of a Native American church who uses ceremonial peyote was dismissed Thursday in 5th Circuit Court.

Jesse Shane Johnson, 38, minister for Beauty Way of the Four Directions of the Native American Church of Hawaii, said he was happy that federal laws to protect religious and ceremonial rights prevailed.

“I have been praying ceaselessly this whole time and trusting in God that this would come out right with recognizing the laws that are there to protect us,” Johnson said.

Chief Judge Randal Valenciano dismissed the case with prejudice. The defendant’s right to a speedy and public trial were violated for a second time and the prosecution cannot bring charges again.

“Given the facts and circumstances, it became apparent that we did not have a viable case to move forward with, and we agreed that dismissal was appropriate,” said County Prosecuting Attorney Justin Kollar.

In court, First Deputy Prosecuting Attorney Kevin Takata said the state did not object to dismissing the case as the 180-day limit to bring the defendant to trial expired. He asked the court to dismiss without prejudice and allow possible charges in the future.

Johnson’s attorney, Gregory Meyers, said the case should be dismissed with prejudice. He said the defendant is an ordained minister who is licensed to practice the ceremonial use of peyote. His rights are protected under the First Amendment and U.S. Code Title 42 on Traditional Indian religious use of peyote.

The code notes that ceremonial use of peyote by Indians is protected by federal regulation as a centuries-old religious sacrament when it is integral to a way of life and perpetuates tribes and cultures, he said. When 28 states enacted similar protections, Congress acted in the interest of uniformity and to ensure a national standard of religious practice under the First Amendment.

Hawaii does not have its own protection, Meyers said, but federal law clarifies the legal protections for religious use of peyote to avoid marginalizing and discrimination of Indian tribes and cultures.

The U.S. Code of Federal Regulations concerning food and drugs lists the Native American Church as a special exemption regarding drug enforcement. Peyote is a controlled substance but not for non-drug use in native religious ceremonies.

“After more than two years since initially being arrested, Mr. Johnson is happy to put this case behind him,” Meyers said. “He is most thankful that Native American Church members’ constitutional right to practice their religious beliefs, without governmental interference, has been recognized by the Court.

“Credit should also go to Deputy Prosecuting Attorney Kevin Takata who thoroughly researched the pertinent issues in this case and presented a fair and balanced argument to the Court regarding Mr. Johnson’s right to freedom of religion,” he added.

In December 2011, Kauai police officers raided Johnson’s residence and reported peyote cacti and dried byproducts along with processed marijuana. Police said the marijuana exceeded Johnson’s medicinal permit, but did not mention if the peyote was in violation of his rights to religious possession.

In May 2013, a felony information complaint was issued and Johnson was charged with first-degree promotion of a dangerous drug, unlawful use of drug paraphernalia, and second-degree commercial promotion of marijuana.

Being charged as a drug dealer resulted in Johnson’s eviction when his landlord feared that he would lose his land. His massage therapy practice also suffered as clients read news of the arrests.

Eventually, people saw through it and things got back to normal, Johnson said. The case was dismissed without prejudice, but a year later he was arrested again for mescaline possession after offering a prayer at a GMO rally.

It was the same confiscated peyote that was sent to be tested. It melted over time and naturally processed into mescaline and something they don’t do with the church, he said. The church uses fresh peyote or will dry it for use as a tea powder.

“For us this was offensive but it was a misunderstanding and I am glad it is over with a peaceful resolution,” Johnson said

The residence was registered as a church with the Department of Public Safety, and Johnson claimed that police violated his charter that is recognized by the federal government.

The Department of Public Safety takes Johnson’s peyote orders and in turn sends them to remaining peyote growers in Texas. It is shipped back with a chain of receipts to follow.

Ceremonies continued despite what Johnson said was a police order to cease until the investigation was complete. It became a civil and human rights matter, he said, and they continue to meet using a teepee tabernacle at various locations to perform many ceremonies and services that do not always involve peyote.

The confusion came with Hawaii not having its own law protecting peyote use, he said. The federal law ensures all states recognize protections and a peyote case could be challenged all the way to the Supreme Court.

Albert Lopez, president of the church executive organization, said they are grateful for the outcome of the case. He said federal and state laws prevailed concerning the articles of religious freedom.

“We have been praying for a peaceful resolution from the beginning,” Lopez said.

Until the decision Thursday, church members were fearful that something could happen again, he said. Now there is a feeling of unity and a spirit that the community will return to normal.

Lopez said the late Sen. Daniel Inouye is also to thank for co-authoring the Religious Freedom Restoration Act in 1993. Inouye also wrote the forward to Huston Smith’s book, “One Nation Under God, the Triumph of the Native American Church.”

“The church experienced persecution for decades and (Inouye) was a leader who understood the things that we are going through as a church,” Lopez said. “He understood about us having our medicines and keeping our sacraments sacred and not being used in a profane way.”

There are hundreds of charters around the United States. The Hawaii church started on the Big Island more than 22 years ago. Johnson moved to Kauai four years ago but was on the Big Island for over 20 years.

The challenge now is to ensure that all members are protected regardless of race or ethnicity, Johnson said. To require blood quantum percentiles for protections of native rights is like requiring all Buddhists to be Asian.

The third generation would lose their religious and cultural rights to medicines and their way of life, he said. It is ultimately genocide.

“This is a freedom of religion issue,” he said. “If you want to come to a native American church then you should be protected under the Constitution.”