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Judge's Opinion Could Affect Use of Peyote
By Mark Engler, Navajo Times Correspondent
May 14, 1998
Navajo Times
FLORENCE, Ariz. - A Pinal County Superior Court Judge is in the process of rendering an opinion in a case that could prove significant for practitioners of peyote religion in Arizona.

The ruling Judge William J. O'Neil issues in the case - a contested drug forfeiture dubbed "Part of a Peyote Plant" - may ultimately undergo scrutiny in a higher court, and is likely to prompt disagreement in legal and religious circles, perhaps most sharply among fellow peyotists themselves.

The case, heard by O'Neil on April 14, represents the latest confrontation in an on-going dispute between a rural Arizona man and local police officials over his use and home propagation of *Lophophora williamsii*, otherwise known as peyote.

On Jan. 19, 1997 Leonard Mercado was returning from a trip to Mexico when he was pulled over just outside his hometown of Kearny, Ariz. He was subsequently detained on an outstanding child-support enforcement warrant. During the booking process officers discovered Mercado was carrying a small cloth pouch that contained a single dried peyote button.

Over Mercado's protestations police seized the button and refused to return it to him upon his release from custody later that evening after he raised the child-support payment.

No criminal charges were filed against him.

Mercado, 37, says peyote is central to his belief system and that practicing his religion without peyote is unthinkable.

But county and local law enforcement officials don't buy it.

Peyote is just dope, they contend. Or at least it is when Mercado is using it.

Mercado, they say, "simply likes to get high."

Arizona's statutes addressing the subject of peyote indicate possession and use of the mescaline-producing plant is illegal unless in keeping 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."

State law also dictates that peyote is among those "dangerous drugs" in Arizona to be "summarily forfeited" if it "come(s) into the possession of a law enforcement agency."

Mercado - a non-Indian - took the witness stand to defend his beliefs and contest the police seizure of his peyote button during the "Part of a Peyote Plant" trial earlier this month.

He testified he is a "believer in God and God's creation" and is an undocumented member of the Native American Church. Mercado said he regularly attends and hosts NAC prayer meetings and that he has been baptized in sacred NAC ritual.

Mercado also said he uses peyote as a sacrament in both ceremonial settings and in a fasting vision quest on the desert. He testified he always consumes peyote as a form of divine worship and carries a button with him at all times, as a "powerful amulet - chiefly as a reminder, but also to be (eaten) in dire emergency."

Mercado testified he never tries to hide his religion and that "my home is just not complete without the visible and living presence of the peyote plant."

He said he is not a federally authorized peyote dealer. He suggested "only God" issues licenses to handle and use peyote.

He testified, however, that he has never sold peyote and said he has no intention to unless awarded a license by the federal government - something he said he doesn't anticipate will happen.

Under questioning by the judge, Mercado defined "sacrament" as "something that you ingest as a form of prayer."

Mercado testified that he believes all plants are sacred, but described peyote as "the Grandfather."

"Peyote can teach you about all plants," said Mercado.

Mercado's use of peyote and his beliefs regarding the sanctity of all plants - even currently illegal ones - have gotten him into legal scuffles with Pinal County law enforcement officials in the past.

In October 1995 a Pinal County anti-drug task force raided Mercado's home along the Gila River in central Arizona and seized 1,000 living peyote plants, along with a small amount of marijuana, a marijuana seedling, several capsules of a drug called Ecstasy and a number of ceramic smoking pipes.

Mercado and his wife were arrested at the time of the raid and ultimately pleaded guilty to a single count each of possessing drug paraphernalia, but not before they successfully petitioned then-Pinal County Attorney Gilbert Figueroa to return the peyote plants police had seized from the property.

The Mercados later sued local and county police agencies for their respective roles in the raid, claiming their civil rights had been violated, but that case was ultimately dismissed by a state court earlier this year.

Since the time of the peyote's return, the Mercados have continued to openly propagate their "Medicine," which they argue is becoming endangered in its natural habitat because of over-harvesting. They operate a peyote awareness and advocacy organization called the Peyote Foundation which publishes a periodical newsletter and a website on the Internet.

But not all peyotists are comfortable with what the Mercados are doing, and the perceived manner in which they are doing it.

Victor Clyde, who is vice president for the NAC of Navajoland and also serves as chief Chinle District Prosecutor, testified during the "Part of a Peyote Plant" trial that he thinks Mercado is an insincere person who has "a lot to learn about the (peyote) religion."

Clyde bases his opinions of Mercado on the prospect that Mercado uses and attaches spiritual significance to psychoactive plants and substances in addition to just peyote.

Clyde worries that if Mercado's use of peyote is seen to be endorsed by the court it will "open the doors for people to possess peyote for other than religious purposes" - a trend Clyde indicated may already be on the rise, at least on the Navajo Nation.

The Chinle Prosecutor told the court that in the past year, in at least three instances on Navajoland, police have discovered peyote being used in a manner not protected by Navajo law - that is to say, not in connection with NAC practices.

Clyde also disagrees with the manner in which Mercado tends his peyote garden, or rather that he tends a peyote garden at all.

"Peyote grows only in a special area," said Clyde. "I don't think it's right to replant the Medicine elsewhere, other than where it grows. Traditional herbs are planted in a special way."

What Mercado is doing "takes away from the spirituality of the Medicine," said Clyde.

Upon taking the stand later, Mercado - under direct examination from his attorney, Tucson lawyer Lynn Goar - indicated he wasn't angry with Clyde for expressing opinions critical of him and his beliefs.

"Although I would like to think he might stop pre-judging others he doesn't know," Mercado added.

Deputy Pinal County Attorney Ray Addington, the government's lawyer in the case, later argued Mercado has had an "unusual interest in altered states of consciousness" nearly all his life - and that that interest is what accounts for Mercado's fascination with peyote.

"Since childhood he's used marijuana, he's used Ecstasy, he's used peyote," Addington said. "Peyote just happens to be the one that is protected by the law if you claim it's your religion."

Other government witnesses testified Mercado is very public about his views, and that he makes no secret of his legal disagreements with authorities among the Kearny locals.

"People are watching," said Kearny Police Detective Ed Morgan.

Morgan testified it has been his experience that Mercado "thinks everyone should use peyote."

"He thinks it's a cure for everything," Morgan told the court. "He's told me I should use it, I'd feel better."

On the stand later Mercado denied he thinks "everyone" should use peyote, but acknowledged he believes Morgan might benefit from ingesting some - and that he has indeed expressed such notions to the Kearny police detective on past occassions.

Ultimately both sides agreed Mercado's willingness to make his views and actions public is a central element to the case, though they approached that assessment from different points of view.

"If Mr. Mercado were the type of individual who had a sincere belief in peyote and felt it was necessary to practice this belief, and he practiced it quietly somewhere, without going out of his way to attract attention to himself - attracting it in every conceivable way that can be imagined - then this case would probably never have been brought," Addington remarked during his closing statement. He concluded by accusing Mercado of spending too little time "providing for his family," and too much trying to become the "peyote guru of the Western World."

"We don't think ...it's impossible to have a sincere belief in peyote," Addington said. "I would submit that Mr. Clyde is such a person. We do not believe that person is Leonard Mercado."

Goar responded that were Mercado not sincere he would have "cut and run from the case and the publicity long ago," and that at any rate the government has no business punishing persons based on how prominently they display their religious beliefs.

"What bothers the state about Mr. Mercado is the fact that Mr. Mercado is very vocal about his religion," said Goar. "He's not afraid to write a letter to the editor, he's not afraid to put something on his electronic bulletin board, and he's not afraid to write something in his (Peyote Foundation) newsletter. It looks to me as though the state is not only antagonistic to the freedom of religion aspect of this case, there's a freedom of speech issue here as well. ‘Mr. Mercado, if you would just shut up and stop talking about your religion, we'll leave you alone.' That's what this case is about: They just don't like Leonard Mercado. They don't like that he believes things differently than the rest of us do."

The court has until mid-June to render a verdict in the case "Part of a Peyote Plant," though the deadline may be extended if the judge determines he needs more time to reach a decision.