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Judge's ruling on peyote button ‘chief' to be appealed
by Mark Engler, Navajo Times Correspondent
Jun 11, 1998
Navajo Times
FLORENCE, Ariz - A state court judge here has likened a Kearny man's professed belief in the spiritual power of the peyote cacti to a "carny's" belief in "cotton candy" and has ordered local law enforcement officers in Pinal County to destroy a peyote button confiscated from the man last year.

But a spokesman for the county attorney's office said law enforcement officials have no desire to offend the Native American Church, and may hold off disposing the mescaline-containing cactus top until deciding on a manner to rid themselves of it that is at the same time legal and unoffensive to NAC leadership.

Pinal County Attorney Carter Olson plans to "consult with Native American Church" authorities on the matter, said Charles Ratliff, communications manager for the prosecutor.

Ratliff added that law enforcement authorities will likely hold on to the button until appeals in the case have run their course.

During the April 14 drug forfeiture trial titled "Part of a Peyote Plant," Leonard Mercado, 37, petitioned Pinal County Superior Court Judge William J. O'Neil for return of his peyote "chief," claiming Kearny police officers had taken it from him without cause following a traffic stop last year.

Peyote is illegal in Arizona unless used in connection with "bona-fide practice of a religious belief ... as an integral part of a religious exercise ... and in a manner not dangerous to public health, safety or morals," according to state law.

O'Neil ruled in an opinion released last week that Mercado didn't convince him he was sincere in his religious beliefs during the civil trial addressing the issue.

"(Mercado) failed to demonstrate to any satisfactory degree that the carrying of the peyote button is a required tenet of his faith," O'Neil wrote in a five-page judgement.

The superior court judge rejected Mercado's assertion that the button should be returned.

"Mr. Mercado has failed to demonstrate to this Court's satisfaction that peyotism or the peyote religion, however referred to, is a religion that is embraced by him," O'Neil wrote. "Instead, he presents himself far more as some carny offering cotton candy for any and all to use."

Mercado promptly issued a written statement blasting O'Neil's opinion as "spiritual bigotry" and "blasphemy" and indicates he plans to press the matter in an Arizona appeals court.

"It strikes us as plainly un-American to make a value judgement over another person's religious beliefs," Mercado wrote. "With all due respect to the Honorable William O'Neil, his decision that we are not sincere in our religious beliefs concerning peyote is akin to saying the sun does not shine brightly in Arizona, the sky is not blue, and the Gila River does not flow past our property. In fact, his decision is similar to saying we have no First Amendment in our Constitution."

Mercado, who is of Mexican descent, holds that he uses peyote as a religious sacrament and that he is an undocumented member of the Native American Church.

Mercado wrote, "We pray to God that religious freedom might resurface in the American heart and look forward to the outcome of our appeal (both to the Creator and the courtroom) of this case."

Some Native American Church members are questioning Mercado's sincerity, though, and also the wisdom of his decision to appeal ruling.

"We don't need the visibility right now, especially with the conservatism that's in the high court and our lawmaking bodies," said Parr Decorah, an NAC Roadman and member of the Hochunk Tribe of Wisconsin. "They want to get rid of this peyote the first chance they get and if something like this is brought up then it will provoke their ire and they'll go after peyote."

Decorah, who conducted an NAC healing ceremony Mercado hosted for a friend at his home outside Kearny last month, said he is concerned an appeal in the case might "jeopardize" the right of Native Americans to continue to use peyote.

"I'm afraid that should Leo pursue this any further he's going to bring attention to the plant, endangering it's use for those people who believe in it - where they (won't be able to) legally and comfortably use it as they do now," said Decorah, an uncle to the late Native American rights activist, Reuben Snake.

NAC of Navajoland Vice Chairman Victor Clyde testified against Mercado during the trial. Clyde indicated he is generally pleased with the judge's ruling.

"Our's is a unique situation," said Clyde, who also serves as the Chinle District Prosecutor. "Native Americans need protection so that people don't try to use peyote for other than religious purposes. If we don't have legal protection then peyote will be open to all kinds of abuse by people who are not familiar with these ceremonies and don't have respect not only for Native Americans within the United States, but also in Mexico."

Mercado said he flatly disagrees with both Decorah's and Clyde's assessments of the situation, and said anyone who sincerely believes in "the goodness of peyote medicine" has nothing to fear from an honest discussion as to the nature of both the plant and the laws that punish certain people for possessing it.

"It's pretty sad when someone comes across a case that is as primary to religious freedom as this one is, and they don't want it seen or heard," Mercado said in a telephone interview Wednesday. "I guess I just have more faith in our justice system than someone who thinks that way. Not only that, but it sickens me to hear someone suggest that the government is going to take away the right to worship in this way. No government is going to ‘take away' my right to worship."

And, Mercado said, "ludicrous" is the idea that "government is the protector of our religion, and that it (gives or takes away) our religious beliefs."

"There is a fundamental misunderstanding not only of the role of government in this country, but also a fundamental misunderstanding of peyote," Mercado said. "They think peyote is so strong that you don't have to plant it to save it from extinction, but it's not strong enough to prevent itself from being abused by people who are insincere. Perhaps this is the real difference here: I ultimately believe this medicine is stronger than they do."

Asked how determined he is to pursue the case through the appeals process, Mercado responded "How determined are salmon to swim upstream and spawn?"