Kauai Cops Raid Native American Church

Kauai police raided a Native American Church in Wailua last week.

But you wouldn't know it from the county's press release, which was issued yesterday after I called looking for more information upon interviewing Robert Pa, president of the Kauai branch of the Oklevueha Native American Church. The release, reprinted by The Garden Island passes it off as another drug bust:

Police arrested a Wailua man last week after locating drugs in his home.

Shane Johnson, age 36, was arrested on Dec. 19 for two counts of first degree Promotion a Dangerous drug, second degree Commercial Promotion of Marijuana and three counts of Drug Paraphernalia.

An initial investigation revealed that Johnson was in illegal possession of a significant amount of Peyote, a Schedule I controlled substance,” says Assistant Chief Roy Asher of the Investigative Services Bureau. “The drug was found in various forms, including: active growth, recently harvested and for immediate consumption.”         

Police also seized a large amount of marijuana that far exceeded Johnson’s allowable limit per his medicinal marijuana permit.

Due to the ongoing nature of the case, the specific amount of drugs seized will not be revealed at this time.

Johnson was released pending further investigation.

But Robert, who was present at the raid, offers quite a bit more detail. As he tells it, UPS delivered a box with peyote, which the Church uses as sacrament, that had been sent from Thailand to Shane's house. The cops had already opened the package so they could outfit it with a tracer that alerted them when it was re-opened and also stained the opener's hands, as well as the peyote buttons, with dye. “They're mixing chemicals with our sacrament,” Robert fumed.

As soon as the box was opened in the house, there was a knock on the door, and Shane opened it to find some 12-15 cops outfitted in full SWAT gear standing in the yard. They had a search warrant signed by District Judge Trudy Senda. On the front page was a reference to Shane's house, while on the second it spoke of the Native American Church.

Shane, who is an ordained minister in the Church, and also its vice president, showed police his paperwork, as well as a copy of the Church's charter.

He also pointed out that the package included a declaration stating that the peyote was destined for the Native American Church. “You have to present that paper [to the seller] to get it shipped in legally,” Robert says.“But the cops ignored it and said it doesn't count.”

According to Robert, one of the cops likened Church leaders to David Koresh, the Branch Davidian leader who was killed, along with 75 adults and children, in a federal raid on their Waco, Tex., compound back in 1993. Except, Shane pointed out, in this instance only the cops had guns, and they were using them to rob the Church of its sacrament.

The cops also nabbed two teen boys, one of whom lives in the house, as they walked out the back door, apparently unaware of the police presence in the front. The house is quite large, and sits on many acres of land. The cops reportedly asked the boys why they were trying to leave a crime scene and handcuffed them, which Robert says left them “fully traumatized.”

Meanwhile, the cops proceeded to search the residence. In one cabinet they reportedly found and confiscated both bagged and freshly harvested cannabis, which Robert says was the property of blue card (medical marijuana license) holders living in the house and well within the allowed amount.

They also found some unopened packages addressed to Touch of Aloha and asked Shane for permission to open them. Shane said he couldn't give that permission, because they weren't his. According to Robert, the cops threatened Shane, saying they would pull his family out of the house for two days and tear it apart if he didn't give them permission to open the boxes. They then reportedly told Shane that he wouldn't get in trouble if the boxes contained pot, only if they held cocaine or heroin. He still wouldn't go along.

“The cops took it upon themselves to those boxes without a search warrant,” Robert said. “That's breaking a federal law.”

At any rate, the cops allegedly found marijuana inside the two packages.

Meanwhile, Robert, Shane and the cops were having a debate over the legality of the Church and its sacrament, with the cops reportedly telling them they could only possess peyote if they had 25 percent Native American blood.

I'm not sure where the cops got the blood quantum bit. A 2004 decision by the Utah Supreme Court involving James Flaming Eagle Mooney, a founder of the Oklevueha church, held that a federal regulatory exemption that allows the use of peyote in religious ceremonies does not restrict that use solely to federally recognized tribes:

We therefore rule that the exemption is available to all members of the Native American Church.

Because the Utah Controlled Substances Act does not clearly specify whether it incorporates the Religious Peyote Exemption, a holding that the exemption does not apply would give rise to serious constitutional claims under the due process clauses of the federal and state constitutions. The ambiguity in the statute is such that the scope of its peyote prohibition cannot be decisively interpreted by lawyers, to say nothing of citizens untrained in the law. This weighs strongly against any interpretation that would enable the State to initiate criminal prosecution based on arguably legitimate conduct.

This ruling, apparently, is what the Kauai branch of the Church was going on in carrying out its own activities, which allegedly included using peyote in sacred ceremonies with its members.

The cops also reportedly confiscated peyote that was in pots, awaiting use at the solstice ceremony.

“I don't see the cops raiding the Catholic Church and taking their bread and wine,” Robert said. “They told us we cannot practice our religion until the courts decide. They are stopping all our activities until they decide if we can go forward. Isn't that genocide? It makes me nuts.”

He said the cops tracked mud throughout the house, and it took him some three hours to clean up the mess after they left, with a handcuffed Shane in tow. “They kidnapped our minister from the Church," Robert said. "The cops, they got no leash, no boundaries on them. They just do whatever they want.”

Shane, who was reportedly interrogated for several hours at the police station, without an attorney present, was then released without charge, pending further investigation.

Meanwhile, someone had called the mayor's office to complain about the raid on the Church. According to county spokeswoman Beth Tokioka:

An anonymous caller called our office and spoke with Sean [Texeira, the mayor's special assistant] to report an incident.  Sean offered to look into it but the caller did not want to leave his name and number.  He instead left the names and numbers of a few other individuals - one of whom was Shane.  Sean determined that the appropriate course of action would be for someone to file a complaint with the Police Commission if they feel something improper had occurred.  He then called Shane to relay that information and explain how to file a complaint if he wanted to do so.  A day or so later Shane and another individual came to the Mayor's office to present the complaint forms.  Sean walked them down to the Office of Boards and Commissions so that it could be filed with the Police Commission secretary.

According to Robert, Sean apologized for what happened and asked if Church members felt violated. When they said they did, he suggested they file a complaint with the Police Commission. The hearing is set for 9 a.m. Jan. 27, 2012.

“But our sacrament cannot be kept out [of soil] that long,” he said. “Our peyote is dying and we missed our solstice ceremony, our Christmas ceremony and now our New Year's ceremony coming up. They get our sacrament in prison and we're out here walking around. What's wrong with that picture?”