Jurisprudence, Peyote

State v. Big Sheep: When The Montana Supreme Court Interpreted the Bible for the Native American Church

Peyote is a fascinating study in American drug law for several reasons.

For one, unlike many drugs, the plant that peyote is derived from (Lopohora Williamsii) is native to the American landscape. It grows wild in the deserts of the southwestern states and Northeast Mexico. The plant precedes the country, and native usage of the plant for its consciousness-altering properties dates back several millennia. In fact, it is possible that on top of predating any American laws, peyote usage by Natives predates any written law the modern world knows of.

For another, peyote bore considerably less public frenzy over its usage than other drugs did  – it is one of the few drugs to enter the realm of the prohibited without a media clamor preceding it. There was “reefer madness,” but very few tales of “morbid mescaline.” Actually, at points, quite the opposite occurred. An effusive 1902 Popular Science report on the drug describes the effects of peyote as an introduction to “the world in which Wordsworth lived,” that “leaves the intellect almost unimpaired, even in large doses.” This report closes with a conclusion that “the Indians who raised this remarkable plant to divine rank, and dedicated to it a cult, have in some measures been justified, and even in civilization there remains some place for the rites of mescal.”

For a third, while the racial basis of most drug prohibitions tends to lie just below the surface, in the case of peyote, the racial element is right on top, debated and discussed directly. For example, certain states currently maintain laws that require a certain percent of Native blood to qualify for sacramental usage.

And finally, peyote prohibition has a strong religious component – the ceremonial usage of the drug bumps up against American religious values in a way that no other drug does, forcing a balancing of priorities that requires an objective and wider-lensed evaluation.

This religious aspect of peyote prohibition is where its surrounding jurisprudence wiggles the most interestingly when poked. You may know of Employment Division v. Smith, America’s preeminent peyote case, in which the United States Supreme Court upheld the State of Oregon’s denial of unemployment benefits to a religious user of peyote who lost a job as a consequence of his usage. The implications that this case had on American religious freedom inspired, in part, the Religious Freedom Restoration act of 1993.

However, Smith is far from the first time religious usage of peyote was evaluated in an American courtroom.

One of the earliest cases published addressing the peyote prohibition comes in 1926, when the Supreme Court of Montana reversed and remanded the conviction of a man named Big Sheep, a member of the Crow tribe, who had been charged with the crime of “unlawfully having in his possession peyote.” The case is State v. Big Sheep 243 P. 1067.

Big Sheep’s appeal was based on two grounds. The first was a jurisdictional ground, contesting that the State government lacked the authority to prosecute him for actions limited to the Crow reservation (i.e. Federal land). The discussion of this contention is long, couched in language of the Indians being “wards” of the Feds, and it is the argument through which Big Sheep wins and gets his case sent back down for re-evaluation.

Big Sheep’s second ground for appeal was that he “was at the time alleged, and for many years theretofore had been, a member in good standing of the Native American Church, and that peyote is used by the members of that church ‘for sacramental purposes only in the worship of God according to their belief and interpretation of the Holy Bible.” Thus, Big Sheep argues, to punish him for using peyote ceremoniously is to infringe on his freedom of religion.

Montana’s Justice Callaway, writing the opinion, clarifies the Native America Church’s tenets and approach to peyote usage, writing, “They ground their faith upon the fourteenth Chapter of Romans, the fifty-third chapter of Isaiah, second verse, and the second chapter of revelations, seventeenth verse, King James’ Version.”

Here are links to those Bible sections:

Romans 14 (Can be interpreted as being about not judging people for the practices of their faith, specifically dietary practices, that give no offense.)

Isaiah 53:2 (Can be interpreted as being about finding meaning in desert growth.)

Revelations 2:17 (Mentions eating “hidden manna” and receiving “white stones.”)

In the opinion, Callaway first decides in Big Sheep’s favor on the jurisdiction challenge. This is grounds enough to reverse and remand, and get the case out of the court, making Big Sheep’s freedom of religion argument at least temporarily superfluous. However, showing either impressive judicial efficiency or an equally impressive lack of judicial restraint, Callaway decides to just go ahead and address Big Sheep’s second claim, this religious argument.

He ultimately rejects Big Sheep’s second contention with the argument that the legislature is free prohibit religious practices that are “inconsistent with the good order, peace, and safety of the state,” and that “tend toward the subversion of the civil government.”

However, rather than citing legislative history attesting to the negative social impact of peyote usage to support this argument, Callaway decides to justify his rejection by interpreting the Bible for the Big Sheep and the Native American Church.

Callaway explains that that peyote is not explicitly mentioned in Isaiah or Romans, even if the growth out of dry ground in Isaiah bears a “slight resemblance.” He then declares that it does not “seem from the language employed that Saint John the Divine had any such in mind.”

He goes on to define the lesson in Romans 14 as being about brotherly charity, and bidding that men “should not condemn one another, but take heed that they give no offense.”

While Callaway explains that this sentiment from Romans is “worthy of much greater observation” than it receives, in the very same sentence he scoffs at the notion that it be applied to sacramental peyote usage, because then “the use of opium, cocaine, and even moonshine” might get the same pass.

In other words, Callaway puts up a wall because he is afraid that he may have to draw a line if he doesn’t. He cries of the dangers of governmental misinterpretation in a block of unadulterated governmental interpretation. Rather than addressing the societal consequences of a certain interpretation of the Bible, he elects to assert a “correct” interpretation.

Putting aside the fact that ceremonial peyote usage among Native Americans predates the Bible, and the likelihood that the Native American Church attempted to ground their faith in these chapters only because they had learned since the time of the conquistadors that they had to fit their traditions into a Biblical framework to be allowed to maintain them – even putting aside the absurdity of an American Judge serving as a biblical interpreter – this is still an outrageous approach to resolving an American legal issue.

By simply saying “Sorry guys, you got it wrong with your religion,” Callaway personifies what was the initial approach to regulating religious usage of peyote in America. Something along the lines of “We may not know, but c’mon, are we really gonna act like these Injuns know better than us?”

This approach, this attitude of “If this was right we would have been doing it too,” comports with the general approach to American drug law during this era – “Not white, not right.” While peyote laws in this country have evolved more than other drug laws have, the drug initially suffered the same racist reception as marijuana and opium.


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