Will an Inventive Legal Strategy Succeed in Turning OC Marijuana Dispensaries Into Cannabis-Friendly Churches?

The sacred blessing ceremony of Orange County’s first cannabis-friendly Native American church is being held up by Mother Nature.

It’s late in the morning of Feb. 24, and Joy Graves squats before a bush on the side of a mini-mall parking lot along Huntington Beach’s heavily trafficked Beach Boulevard. A medicine woman with the Oklevueha Native American Church (ONAC), which celebrates peyote and cannabis as religious sacraments, Graves has traveled south today to rid the former High Tide marijuana dispensary of bad vibes and evil spirits. But first she must obtain a handful of mother earth to use in the blessing ceremony, and actual dirt, at least in this area of Orange County, is in short supply.

The bush in the landscaping strip provides the only option, but it’s as hard as cement, perhaps from drought-related underwatering. Graves is dressed in a long, un-hemmed white robe, its jagged ends evoking an animal hide, and marijuana leaf-adorned socks tucked into leather moccasins. She is unable to pry any dirt loose with her fingers, so she scrapes at the dirt with her ceremonial abalone shell. “I’m not really supposed to do this,” Graves says, “but it’s the only way.”

Unlike traditional Native American churches that use peyote in tightly controlled ceremonies on tribal land, ONAC is open not only to members of federally recognized tribes, but also to prospective members of all races and creeds. In fact, pretty much the only requirement to join ONAC is that you make a $200 donation. (Actual tribal members only have to pay $30.) There’s a plastic banner hanging above the tinted windows of the former dispensary, marking it as a branch of ONAC, and the organizers of this private ceremony say it will be open for business—i.e., selling cannabis to members—in just a matter of days.

Back inside the dispensary, Graves spreads her ceremonial kit—pheasant feathers, a rattle, a hand broom and a bundle of sage—atop an empty marijuana display case next to a poster of Mona Lisa smoking a joint. Also present in the room are David and Marla James, a prominent pair of marijuana-legalization activists in Orange County and brand-new members of ONAC, and Pat McNeal, an ONAC member and former lawyer who is working with ONAC’s chief counsel, Matthew Pappas, to build the church. (McNeal suffers from leukemia.)

Marla, whom the Weekly profiled in its 2015 People issue, is a legally blind, wheelchair-bound amputee whose disability was insulted by a Santa Ana police officer during a May 2015 pot-club raid that was caught on videotape. (Security footage also showed the officers stealing what appear to be marijuana edibles, throwing darts at a wall and joking about feeling “light-headed”; three officers now face charges of petty theft and vandalism from the incident.)

Having worked to build the medical-marijuana movement in Orange County for the past two decades, only to see every city with the exceptions of Santa Ana and Laguna Woods ban cannabis collectives and carry out countless raids to shut down dispensaries, the Jameses see ONAC as the last chance to protect patients who, for medical or economic reasons, can’t drive to Santa Ana to obtain their medicine. With legal help from Pappas, ONAC hopes to convert as many shuttered dispensaries as possible in Orange County into churches that can legally dispense marijuana to members under federal religious law.

It’s an ambitious, untested strategy—desperate measures for desperate times—but Marla is willing to give it a shot. “If this is what we have to do,” she says, “then this is what we’ll do.”

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The story of how the High Tide medical-marijuana dispensary became a Native American church starts not in Orange County, but in Utah with a charismatic and controversial Native American church leader named James “Flaming Eagle” Mooney, the great-grandson of the Smithsonian ethnologist of the same name. In an interview, Mooney said that although he had fuzzy childhood memories involving his grandparents in Missouri putting him in a sweat lodge and “dedicating” him as a medicine man, he had no connection to his Native American heritage until much later in life.

In 1987, after a long career as a businessman, Mooney was a practicing Mormon, living in Utah with a wife and seven children. Things weren’t going as well as they should have. “I developed a bipolar manic depression and was taking 1800 milligrams of lithium a day,” he explains. “Then my wife died of cancer, and I lost custody of all my children because my wife’s family thought I was going crazy. I was devastated, non-functioning.”

That’s when Mooney says he received a telephone call that changed his life. “Is this James Mooney?” the voice asked. When Mooney affirmed his identity, the voice on the other end of the line replied, “Welcome home. We have found you.” The caller, Mooney says, was none other than Chief Little Dove of the Oklevueha Band of Seminole Indians in Orange Springs, Florida.

“They had been searching for me for 20 years because of my heritage,” Mooney says, adding that he is a direct descendant of Osceola, a renowned Seminole leader of mixed-race background who led resistance efforts against U.S. troops in Florida until his capture and imprisonment in the 1830s. “They needed someone other than the chief who was a direct descendant of Osceola and wanted to get recognized as a tribe.”

He told Chief Little Dove about his depression, and at her direction, he began researching the healing powers of peyote, ultimately seeking out a healer in Utah named Clifford Jake, whom Mooney says cured him of his condition via a rigorous series of peyote rituals. Mooney says he was so amazed by peyote’s power that he tried to convince Jake to train non-Native Americans in its usage. “I went to him and said, ‘You cured something that is afflicting our entire culture; you’ve got to take it to the white man,'” Mooney recalls. “He said, ‘I don’t like them. They deserve to wallow in their misery. I can’t do it, but I will train you.'”

Mooney also traveled to Mexico, where, along with fellow peyote worshiper Robert Boyll, he met with Huichol leaders who agreed to provide them with peyote. Boyll ended up being indicted for importing peyote. However, in a 1990 ruling, a panel of federal judges in New Mexico dismissed the case. As a result of that ruling, any member of a Native American church that celebrates peyote as a religious sacrament is allowed to use the drug, regardless of whether or not the person is actually Native American. “Membership in the Native American Church derives from the sincerity of one’s beliefs and participation in its ceremonies,” the ruling states. “Historically, the church has been hospitable to and, in fact, has proselytized non-Indians. The vast majority of Native American Church congregations, like most conventional congregations, maintains an ‘open door’ policy and does not exclude persons on the basis of their race.”

In 1997, Mooney formally registered the Oklevueha Native American Church as a nonprofit church in Benjamin, Utah. He also got a job counseling inmates with the Utah Department of Corrections. Three years later, on Oct. 10, 2000, a squad of sheriff’s deputies raided the church, confiscating 12,000 peyote buttons that had been sent to Mooney by a DEA-registered supplier in Texas. After confiscating another package of peyote containing 8,000 buttons, authorities charged Mooney and his wife, Linda, with 10 felony counts of possessing peyote with the intent to distribute, charges that could have easily put him behind bars for the rest of his life.

After a brief stint in jail, however, Mooney made bail and fought the charges. In 2001, he won a $50,000 settlement from the Utah Department of Corrections, claiming his post-arrest firing was a product of religious discrimination, and in 2004, the Utah State Supreme Court ruled that Mooney couldn’t be prosecuted in a state court, agreeing that it was a violation of his religious liberties. “The bona-fide religious use of peyote cannot serve as the basis for persecuting members of the Native American Church under state law,” Justice Jill Parrish wrote in the ruling.

Although the feds indicted Mooney in 2005, they dropped the case a year later, one day after the U.S. Supreme Court upheld another Native American church’s right to use a psychoactive substance, called hoasca. Federal prosecutors knew it would be a losing battle, not only because of that case, but also because of two laws that were upheld by the U.S. Supreme Court: the Religious Land Use and Institutionalized Persons Act and the Religious Freedom Restoration Act, both of which severely curtail the government’s ability to restrict religious freedoms.

There are numerous examples of this newly enhanced federal protection of religious freedom, but none is more illuminating than the case of the Church of the Flying Spaghetti Monster. Also known as “Pastafarianism,” this comedy-centric church worships what looks like an octopus made of spaghetti and its members like to walk around with colanders on their heads. In November 2015, a Massachusetts resident named Lindsay Miller won the right to wear such a strainer on her head in her driver’s-license photograph.

Buoyed by his legal victory, Mooney set about building his church, expanding it into other states and expanding its sacraments to include cannabis. This is how Mooney came to meet Graves, who wears literally dozens of plastic bracelets from various marijuana expos on both forearms. At the High Tide dispensary shortly before the blessing ceremony begins, Graves explains that after moving to Oregon from Santa Ana in 1985, she became a pot activist and confidante of the legendary cannabis and hemp activist Jack Herer, author of the 1985 marijuana manifesto, The Emperor Wears No Clothes, which has sold 600,000 copies.

“I had a heat stroke, and he took care of me,” Graves recalls of the day she met Herer. “And I owed him, apparently for the rest of my life, to get people medicine because that’s how Jack works.” Graves was with Herer in September 2009 when he suffered a heart attack during the Hempstalk Festival in Eugene, Oregon. After he died the following year, Graves says she made it her mission to spread the word of his unfinished book, The Most High, in which, Graves claims, Herer argued that the original Christian sacrament administered by Jesus to his disciples was not wine, but psychedelic mushrooms.

“He spent 20 years decoding the bible,” Graves says in a whisper as other members of the church arrive for the blessing ceremony. “He told me that when the corporations take over cannabis, the first thing they are going to do is throw the patients to the wolves. I said, ‘What are we supposed to do?’ And he said religion is the only way.” This revelation led Graves on a path of religious discovery, one that, in 2013, took her to Seattle, where she met Mooney, who, she says, blessed her and asked for her help in creating an ONAC branch in Oregon.

“I’ve been trying to figure out for months how the church can help protect the sacrament,” Graves says Mooney told her, adding that he needed someone like her with more experience with cannabis to help make that happen. Mooney instructed Graves to go to the tribe of her great-grandmother, the Narragansett, to get its blessing. Although the tribe was reluctant at first, Graves says, she got the blessing and returned to Oregon, where marijuana is now legal, to help ONAC spread the “sacrament” of cannabis.

On Dec. 10, 2015, Graves tried to mail a package of cannabis to a terminally ill ONAC member in Ohio who has since died. After the package was seized, ONAC filed a lawsuit seeking the return of the marijuana. The lawsuit, filed on Jan. 15, 2016, in Portland’s U.S. District Courthouse, alleges “The sacramental cannabis included in the package was, in part, sent for healing purposes as part of the church’s healing sacraments for a woman suffering from esophageal cancer. Each day the sacrament is delayed, the healing process provided through the church is denied to its member suffering from esophageal cancer as well as is denied for other of church’s spiritual healing rituals, practices and ceremonies.”

The lawsuit, which drew national attention, quickly raised the ire of ONAC’s critics in the mainstream Native American church community. To them, providing peyote to non-Native Americans was bad enough; calling cannabis a sacrament and selling it under the guise of a Native American church was sacrilege. Vi Waln, a nationally published Lakota Sioux journalist, argued that Mooney is “dangerous” and called ONAC a “bogus” church. “He puts our right to use and possess the sacred peyote at risk with his attempt to include the use of marijuana,” she wrote. “Our medicine people fought hard to guarantee our freedom to attend our sacred [Native American Church] ceremonies and use peyote as a sacrament. Mooney, as well as countless non-Indians like him, are a threat to that freedom.”

The lawyer who filed the lawsuit is Orange County’s most controversial medical-marijuana attorney, Pappas. By the time Mooney heard about him, Pappas, a relentless legal activist who has appeared in numerous Weekly articles over the past several years, had already made a name for himself by taking on Southern California cities that were busy banning marijuana dispensaries. In September 2015, after joining ONAC, Pappas met with Mooney in the desert near Las Vegas to take peyote. The pair hiked up a canyon; Mooney put a blanket on the ground, and they sat down.

“At first, I was a bit fearful of it,” Pappas recalls. “There was a slight, warm wind blowing, and as we sat down, it stopped. Everything was silent. I was very at ease. I took the peyote during the ceremony, and after that, for almost a day, I was in a very peaceful mode. It was very peaceful. I think, for me, the experience put into me this belief that there is something to this [religion].”

A month later, Pappas was visiting his son in Germany when he had an unusual dream, one that he believes foretold the filing of his lawsuit on behalf of Mooney and Graves. “It was about being in the snow with James Mooney and some issue he was dealing with,” he recalls. “The moment I woke up, I called James, and he picked up the phone.”

Pappas told Mooney that he had to meet with him but didn’t know why. As soon as he returned to the U.S., he flew to Salt Lake City, where it was snowing. “It was really weird,” he says. “In the dream, I knew that there was some issue he was dealing with, but I didn’t know until I met with him that it involved cannabis being sent from Portland to a woman in Ohio who had esophageal cancer. I had this epiphany, and since that time, I have had a greater strength in dealing with these cases, especially the ONAC cases.”

Mooney believes that Pappas has found a legal end-run around the federal ban on marijuana and that it is ONAC’s mission to carry it out and make cannabis available to anyone who shares the church’s New Age beliefs: People must love and respect the Earth, which in return can provide all our natural and sacramental needs. “Matt and I got together through my desire to help out the cannabis people,” Mooney says. “Matt is tough as nails. He is like a pit bull, plus he’s crazy. He fits right along with me.”

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The handful of brand-new members of ONAC’s first Orange County chapter have arrived at the defunct High Tide dispensary. Graves, the medicine woman, is ready to bless the building. This will be accomplished by sending everyone out of the facility while she uses her pheasant feathers to waft the cleansing fumes of a burning sage bundle around the interior. Her assistant, McNeal, explains what’s happening. “The blessing process is to really take out the evil spirits and bad karma, and there is a symbolic blessing as you come back in.” Thus, McNeal continues, the ceremony converts the ex-dispensary into a “protected” place. “If you can all go outside for a moment,” he asks.

There must have been a lot of bad karma inside the building because that “moment” McNeal referred to lasts more like 20 or 30 minutes. The group of ONAC members, along with a security guard, a journalist and photographer who is constantly snapping photographs makes for an odd scene, drawing the attention of onlookers. Then, to everyone’s great relief, McNeal opens the door, and Graves comes outside with her burning sage bundle. One by one, we walk to the door and stand still so Graves can bless us before entering the building. When it’s my turn, I try to not cough as the fumes waft over me. It seems to be taking Graves forever to wash away my evil spirits.

Why is this taking so long? I wonder. “He isn’t cooperating,” someone says behind me, as if reading my mind. I turn around and realize that Graves, who hasn’t said a word the entire time, is bent over with her sage bundle and waiting for me to lift my feet so she can blow smoke under the soles of my shoes. Once everyone is safely back inside, McNeal addresses the room. “Before this church opens up to the public, there will be a circle of fire ceremony, but it only involves members of the church, and we don’t have enough members to do that yet,” he announces. “There is going to be a blessing ceremony that includes all the people that will be members of the church and the people staffing it and those meetings are traditionally private to the members of the church. This basically concludes the blessing of the facility.”

Flash forward three weeks. By press time, Huntington Beach officials have yet to do anything to stop the ONAC church from operating. “They haven’t said or done anything one way or the other,” Pappas says, adding that he is currently in negotiations with landlords in both Costa Mesa and Anaheim to open two more branch locations in Orange County.

Whether Pappas’ inventive legal strategy—converting dispensaries into churches that claim cannabis as a religious sacrament—will ultimately work is unclear, but it is applauded by legalization backers such as Kandice Hawes, president of OC NORML. “Under the current circumstances, where cities are suing their policing powers to zone out and ban collective locations, I believe Mr. Pappas is trying a new, clever tactic to protect patients’ ability to receive safe access,” Hawes says.

“I think it’s a great idea in essence,” agrees Christopher Glew, an attorney with years of experience representing medical-marijuana collectives in Orange County. “But I am afraid that the length of time it will take to litigate this issue will vastly exceed the amount of time it will take to legalize marijuana. It will be fully legal by the time this issue is resolved.”

Pappas concedes that this may be more of a stalling tactic than a legal revolution. “Let’s say the cities come in and attack,” he says. “Even if the cities sue us, during that time, our members will have access to their sacrament. For people who have used medical cannabis for whatever ailment they have, when you don’t have it available, when every city in Orange County with the exception of Santa Ana and Laguna Woods is banning what can help them, that’s a big problem. The church is a way to make it available.”