JUDGE SETS HEARING ON SEIZED PEYOTE : WITNESSES TO TESTIFY ABOUT INDIANS' RELIGIOUS USE OF HALLUCINOGENS.

Byline: Christopher Noxon Daily News Staff Writer

A pair of American Indians seeking the return of more than 250 pounds of peyote seized by Ventura County sheriff's deputies last month won a partial victory Monday when a judge set a hearing to begin today.

Prosecutors had sought a weeklong postponement, but Ventura Superior Court Judge Frederick Jones ruled that hearings would start as scheduled. The public defender representing Paul Skyhorse Durant and Buzz Berry said he will call two out-of-state witnesses to testify on the religious use of hallucinogens by the Native American Church.

Sheriffs seized more than 10,000 buds of the cactus after pulling over a van they said was weaving in traffic in Oak View. No charges have been filed against either Durant or Berry, but the county Sheriff's Department refuses to return the peyote because officials for the county District Attorney's Office contend the case is still under investigation.

Durant and Berry maintain they purchased the peyote from a licensed grower in the southern Rio Grande Valley in Texas and were passing through the area on their way to deliver it to the Squawmish nation in Washington.

Federal law classifies peyote as a drug on the same level as heroin or opium but protects its use by members of the Native American Church. Public defender Michael Schwartz said the continuing refusal to release the material is a clear violation of Durant and Berry's religious freedom.

``If they don't get it back, they have a good case in federal court,'' Schwartz said. ``This isn't a drug they go out and get high on because of their birthright - this is the equivalent of withholding the holy sacrament from the Pope.''

But Deputy District Attorney Bill Redmond said authorities are justified in keeping the peyote until investigators confirm how it was obtained and who the rightful owner is.

Jones agreed that prosecutors are entitled to an extension so they can prepare for the hearing on a motion filed by Schwartz seeking a court order to release the peyote to Durant and Berry. But the judge said hearings should begin today so a Municipal Court judge can hear from witnesses who traveled to Ventura to testify. After their testimony, however, the hearing may be postponed.

The repeated delays anger the two men, who have led a drum circle in the courthouse courtyard for the past week to protest the confiscation of what they call sacred medicine.

Berry, a member of the Siletz nation, said he has become frustrated with the legal system.

``We've abided by all their laws, and still they won't give it back,'' he said. ``We've gone along with everything they have asked for, and still they drag their feet.''

Peter Garcia, one of the witnesses scheduled to testify today, said he checked the buyers' tribal registration numbers before arranging the purchase in November. Garcia, president of the Southwest Learning Center in New Mexico, said the court should act quickly and release the drug.

``If it's a sacrament, to allow it to rot is a desecration,'' he said.

Durant, a member of the Ojibwa nation, has a history of run-ins with law enforcement agencies and contends prosecutors are treating him unfairly.

In a 1978 trial prosecuted by Michael Bradbury, who is the current District Attorney, both Durant and Richard Mohawk were acquitted in the stabbing death of an Inglewood cab driver in Box Canyon. Marvin Redshirt later admitted to the killing.

Two years later, Durant and Mohawk were convicted for a Los Angeles bank robbery.

But Durant's criminal record doesn't disqualify him from handling or using peyote, Schwartz said.

``If this was in any other county, the peyote would be released by now,'' he said. ``This is a lot of cultural ignorance and prejudice.''