The Peyote Exemption: How Indigenous Rights Shaped Drug Law

“The 1994 AIRFA amendments created a specific federal exemption for NAC peyote use. This is the only federally recognized right to use a Schedule I substance for religious purposes that was not created by litigation.”

The Native American Church's use of peyote in religious ceremonies has been legally protected since the 1994 amendments to the American Indian Religious Freedom Act, but the road to that protection was neither simple nor complete.

In 1990, the Supreme Court in Employment Division v. Smith held that the First Amendment does not require religious exemptions from neutral laws of general applicability. The case involved Alfred Smith and Galen Black, Native American members of the NAC who were fired from drug counseling jobs and denied unemployment benefits after testing positive for peyote following a religious ceremony. The Smith decision effectively removed constitutional protection for peyote use in NAC ceremonies.

Congress responded with the Religious Freedom Restoration Act (1993) and then specifically with the 1994 AIRFA amendments, which added a provision explicitly protecting the use, possession, transportation, and sale of peyote for bona fide religious ceremonies of the Native American Church. This created a statutory exemption, not a constitutional right, for NAC peyote use.

The exemption is NAC-specific. Non-Native practitioners who use peyote for spiritual purposes do not receive the same protection, even within the same ceremony. The Peyote Way Church of God, a predominantly non-Native organization that uses peyote sacramentally, challenged this restriction and lost in the Fifth Circuit in 1991: the court held that the racial classification of the NAC exemption served the compelling government interest of protecting Native American culture.

Colorado's Proposition 122 (2022) navigated this history by decriminalizing mescaline but explicitly excluding peyote from the decriminalization. The drafters made a deliberate choice: the conservation status of peyote and the specific interests of the NAC warranted keeping the plant outside a broader decriminalization framework.

Schultes documented the Huichol peyote pilgrimage with care and respect. The legal history of peyote's status reveals how complicated the relationship between indigenous plant medicine rights and broader drug policy reform has been, and continues to be.

Sources

• American Indian Religious Freedom Act Amendments (1994)
• Employment Division v. Smith (1990)
• Peyote Way Church of God v. Thornburgh (5th Cir. 1991)
• Colorado Proposition 122 (2022)