Part 3: Legality (or lack thereof)
(In the last post, I promised to start this one with some explanation of what goes into ayahuasca that makes it the concern of the US Drug Enforcement Agency, and why some people in the U.S. can drink it legally while others can’t. Here goes.)
Ayahuasca is most commonly defined in the literature both lay and academic as a brew made from the combination of two plants: a vine, ayahuasca (Banistseriopsis caapi); and a leaf, usually chacruna (Psychotria viridis) but sometimes chaliponga, chagroponga or yáji (Diplopterys cabrerana). Although this definition obscures the myriad historical and contemporary iterations of brews that use the ayahuasca vine as a base, the ayahuasca-chacruna dyad is the basis for the spread of ayahuasca usage in the Amazon and around the world.
The leaves that go into the ayahuasca brew contain a substance, dimethyltryptamine or DMT, that has a number of interesting characteristics. It is produced in the healthy human body and brain, and recent research (here, here, and here) suggests that it modulates the immune system and may provide other biologically protective functions as well. DMT is also produced in numerous other plant and animal species. When extracted, purified, and smoked (or injected, as it was in a series of clinical experiments that jump-started the current wave of psychedelic research), DMT produces prodigious if short-lived hallucinations. When ingested orally, however, it does nothing at all. That’s because an enzyme in the human digestive system, monoamine oxidase or MAO, breaks down the DMT before it can get into the bloodstream and through the blood-brain barrier.
On the other hand, ayahuasca the vine (and subsequently the brew) contains substances that inhibit the monoamine oxidase (we call them mono-amine oxidase inhibitors, or MAOIs), thus rendering the DMT orally active and, therefore, hallucinogenic.
The legal problem arises over the fact that DMT is a Schedule 1 substance, a classification reserved for drugs that the US government defines as having no legitimate medical use and a high potential for abuse. Possession of Schedule 1 substances is illegal. Therefore, possession of ayahuasca is, ostensibly, illegal as well.
This picture is complicated by the fact that unlike most Schedule 1 substances such as LSD, marijuana, heroin, and ecstasy, ayahuasca is almost always used in a ceremonial or ritual setting with religious or spiritual overtones. These ceremonies are modeled to a greater or lesser extent on the collective ayahuasca ritual that is common among indigenous people throughout parts of the Western Amazon. Common elements include a ritual leader, often someone with special training in modulating and interpreting the effects of the brew; the use of special ceremonial songs that are reserved for the occasion; and the circumscription of a controlled setting through the use of darkness (or conversely, light) and limits placed on participation (both who is allowed to participate, and how they are expected to act).
In the shamanic setting, as practiced in the indigenous and mestizo communities of the Amazon, the ayahuasca ceremony may be oriented toward physical, spiritual or psychological healing, it can be held for the purposes of divination, or it can be held as a sort of collective celebration. In all cases, the lack of a strict Cartesian divide between spirit and matter in indigenous culture blurs the line between religion and medicine and (more problematically in the contemporary context) between spiritual pursuits and financial ones. Within the historic Amazonian milieu, shamanic healing was often sought and provided across ethnic lines. Payment for shamanic services was akin to paying a doctor. Basic services may have been rewarded with food or a modest financial contribution. A major service such as shamanic training may have required a gift of something as expensive as a hunting rifle. In today’s internationalized and highly monetized shamanic environment, however, fees for shamanic services have become exorbitant, though the bulk of the payment is likely to go to the lodge owner and/or tour organizer, neither of whom are likely to be local people.
In addition to the shamanic use of ayahuasca, two syncretic religions have emerged in Brazil that use ayahuasca as a religious sacrament. These religions, the União do Vegetal (UDV) and the Santo Daime, combine Christianity and indigenous shamanic practice with various other elements of the rich spiritual landscape of Brazil. With their doctrines and their hierarchies of religious specialists, these religions conform more closely to the standard European conception of religion. The UDV, apparently in response to rapid growth, public visibility and the concomitant need for institutional legitimacy, has largely eliminated any practices that may be construed as medical, at least in part to avoid accusations of practicing medicine without a license. While membership in the UDV is contingent on regular payment of financial dues, tight accounting and transparency assure that dues pay only for the logistical costs of church activities—not for the sacrament, and not for the services of the religious leaders, who perform their substantial duties strictly as volunteers.
Ayahuasca in the United States
In the United States, there are four primary contexts for the collective consumption of ayahuasca: within the sessions of the UDV or the Santo Daime; in ceremonies conducted by a traveling South American shaman; in neo-shamanic ceremonies conducted by a gringo who has trained in the Amazon or with a traveling shaman (or possibly not at all); and to a more limited extent, in newly formed ayahuasca churches that claim to have affiliated themselves with the Native American Church and that advertise their services on the internet.
In the US, users of ayahuasca for any purpose—religious, psycho-spiritual, medical, or recreational—have to contend with the fact that DMT is a controlled substance. The UDV came face to face with this reality the hard way, when in 1999 a shipment of hoasca addressed to Jeffrey Bronfman, a mestre (leader) in the church, was seized by the US DEA. Thanks largely to Mr. Bronfman’s deep pockets (he is an heir to the Seagrams fortune), as well as the dedication and perseverance of the US members of the UDV (they were forced to drink water rather than hoasca in their rituals for years while their case wound its way through the court system), the church took their case to the Supreme Court where, in 2006, they won the right to drink and serve hoasca legally. However, even the Supreme Court ruling did not pave the way for the UDV to import and distribute the tea: It would be three more years before the church and the DEA finalized negotiations on an agreement that requires strict record-keeping and security measures to ensure that the tea can not be diverted to non-religious use (Labate 2011). Since then, at least three Santo Daime congregations have also signed agreements with the DEA to import and distribute the tea.
A central tenet of the UDV’s argument was the precedent set by the Native American Church (NAC) for the sacramental use of peyote, as encoded in the Religious Freedom Restoration Act of 1993 (RFRA) (Bullis 2008). However, the UDV made no claims to the NAC’s exemption from the Controlled Substances Act. Rather, as the current legal framework requires, they argued their case on its own merit, as an independent bona-fide religion. Indeed, as noted above, some scholars have argued that the processes of institutionalization and legalization have driven the UDV farther from its indigenous roots (Labate 2011). Regarding the Santo Daime, both the Native American Church and the UDV cases created legislative and judicial precedents for the legalization of entheogenic sacraments, but the Santo Daime, similar to the UDV, was required to press their individual case for legalization. The Daime sacrament was not automatically legalized as a corollary of the UDV case, much less that of the Native American Church.
Several excellent articles, blog posts and webinars have already been posted on the complexities of legislation and legalization of psychoactive substances used for religious or spiritual purposes. I will provide links to several of them shortly. However, let me just summarize a few of the salient points:
- The First Amendment to the US Constitution does not categorically legitimate any and all practices that may be construed as religious. A balance must exist between public welfare and individual or community practice. Issues of sincerity are also at play.
- The Supreme Court decision and subsequent DEA agreement with the UDV permits only the UDV to use ayahuasca in their religious sessions. No other groups outside of the UDV are covered by these decisions.
- While each court ruling helps set a judicial precedent for following groups, each group or individual that seeks protection under these precedents and a subsequent exemption with the DEA must prove to the government that it is indeed a bona-fide religion, or in the case of an individual, that his or her beliefs are religious. A set of standards known as the “Meyers Criteria” are used to define what is religious and what is not. These criteria were defined in a case in which a charge for marijuana possession and intent to distribute was countered with claims for protection as a religious practice. Michael Meyers lost his case and his appeal when the court ruled that his beliefs were philosophical rather than religious.
- Even if an individual or group were to convince the government of the legitimacy and sincerity of their religious beliefs, they would have to convince the DEA of their ability to maintain control over their sacramental substance so as to preclude diversion of a controlled substance to unauthorized use. As the case of the UDV shows, these requirements can be fairly onerous and require a level of organization and a willingness to submit to DEA scrutiny that many groups, especially those associated with a countercultural movement, may not have.
The Meyers Criteria are important in a discussion of religion, shamanism and the legalization of these sacraments. The court’s job in this case was to delimit, not expand, what could be considered a religion, and it is unclear whether shamanic activity or practice would be construed as “religious.” The five criteria, as summarized in Bullis (2008:196) are:
- Ultimate ideas: They address fundamental questions about the meaning and purpose of life.
- Metaphysical beliefs: These beliefs are not only fundamental, but must be transcendental.
- Moral and ethical systems: Religion proposes a system or organized moral and ethical codes.
- Comprehensiveness of beliefs: These beliefs are also encyclopedic and reach a broad array of issues.
- The accoutrements of religion: These include a founder or prophet, sacred writings, specified gathering places, keepers of knowledge (ministers, clergy) ceremonies and ritual and holidays.
The courts sought to be inclusive in their definition of religion while avoiding an “anything goes” approach:
Under this low-threshold “inclusion test,” the Court presumes that the following sets of beliefs are “religious”: Judaism, Christianity, Islam, Hinduism, Buddhism, Shintoism, Confucianism, and Taoism. Undoubtedly, the test also would lead to the conclusion that the beliefs of the following groups are “religious”: Hare Krishnas, Bantus, Mormons, Seventh Day Adventists, Christian Scientists, Scientologists, Branch Davidians, Unification Church Members, and Native American Church Members (whether Shamanists or Ghost Dancers). More likely than not, the test also includes obscure beliefs such as Paganism, Zoroastrianism, Pantheism, Animism, Wicca, Druidism, Satanism, and Santeria. And, casting a backward glance over history, the test assuredly would have included what we now call “mythology”: Greek religion, Norse religion, and Roman religion…All of this probable inclusion leads to an obvious question: Is anything excluded? Purely personal, political, ideological, or secular beliefs probably would not satisfy enough criteria for inclusion…Examples of such beliefs are: nihilism, anarchism, pacifism, utopianism, socialism, libertarianism, Marxism, vegetism, and humanism. (US v. Meyers, 906 F. Supp. 1494 – Dist. Court, D. Wyoming 1995:1504)
Note that the court specifically mentions shamanism in the context of the Native American Church as a religion that would likely merit inclusion under the Meyers Criteria. To my knowledge, no forms of shamanism have at this time been tested specifically against the Meyers’ Criteria. However, on April 4, 2016, Ayahuasca Healings submitted to the DEA a petition for exemption from the Controlled Substances Act. A copy of the petition was obtained through the Freedom of Information Act and has been posted here. Their petition is signed by Christopher [Trinity] de Guzman, the public face of AHNAC, and two other individuals whose names were withheld in the FOIA documents. The petition addresses the Meyers Criteria one by one. The ayahuasca community is waiting with bated breath for the DEA’s verdict, though many observers believe that, for various reasons, AHNAC has little chance of success.
In the next couple of posts, I’ll tell the Ayahuasca Healings story, and readers can consider for themselves what choice the DEA might make in this case.
Other resources on the complexities of entheogenic law:
Dec. 7, 2015: “Don’t believe the hype about the ‘Legal Ayahuasca USA Church’ going around Facebook—it’s not legal, it’s dangerous, and here’s why,” by J. Hamilton Hudson. http://www.bialabate.net/news/dont-believe-the-hype-about-the-legal-ayahuasca-usa-church-going-around-facebook-its-not-legal-its-dangerous-and-heres-why
December 12, 2016: “The ‘Legality’ of Ayahuasca Churches Under the Oklevueha Native American Church,” by Gayle Highpine. http://www.bialabate.net/news/the-legality-of-ayahuasca-churches-under-the-oklevueha-native-american-church
December 22, 2016: “Is Ayahuasca Actually Illegal in the United States?” by Gayle Highpine. http://www.bialabate.net/news/is-ayahuasca-actually-illegal-in-the-united-states
April 3, 2016: “The Religious Freedom Restoration Act, the DEA Exemption Process, and Ayahuasca Healings.” by Gayle Highpine. http://www.bialabate.net/news/the-religious-freedom-restoration-act-the-dea-exemption-process-and-ayahuasca-healings.
“Webinar #1: Winning the Right to Religious Use of Ayahuasca,” hosted by ICEERS and featuring Jeffrey Bronfman. Feb. 20, 2017. https://youtu.be/Ac3Ok22UkGM
“Webinar #2: Myths and Realities About the Legality of Ayahuasca in the USA.” Hosted by ICEERS and Bia Labate, featuring Jeffrey Bronfman, Rob Heffernan, and J. Hamilton Hudson. March 2, 2017. https://youtu.be/VCwoE2Wutf4. Also, the registration page provides an overview of the webinar as well as links to some other useful resources on the subject: http://news.iceers.org/2017/02/adf_webinar_2_ayahuasca_legality_usa/
Works Cited and/or Linked
Bullis, Ronald K. 2008. “The ’Vine of the Soul’ vs. The Controlled Substances Act: Implications of the Hoasca Case.” Journal of Psychoactive Drugs 40(2):193-199.
CEB UDV v. Holder. 2010.”UDV – DEA Agreement.” Accessed March 21, 2017, http://www.bialabate.net/wp-content/uploads/2010/07/UDV_Settlement_Agreement_DEA_20101.pdf.
DEA. n.d. “Drug Scheduling.” Accessed March 18, 2017, https://www.dea.gov/druginfo/ds.shtml.
DEA. 2017. “List of Controlled Substances, Alphabetical Order.” Updated March 2, 2017, https://www.deadiversion.usdoj.gov/schedules/orangebook/c_cs_alpha.pdf.
Frecska, Ede, Attila Szabo, Michael J Winkelman, Luis E Luna, and Dennis J McKenna. 2013. “A Possibly Sigma-1 Receptor Mediated Role of Dimethyltryptamine in Tissue Protection, Regeneration, and Immunity.” Journal of Neural Transmission 120:1295.
Labate, Beatriz Caiuby. 2011. “Paradoxes of Ayahuasca Expansion: The Udv-Dea Agreement and the Limits of Freedom of Religion.” Drugs: Education, Prevention and Policy 19(1):e19-e26.
McGivern, Blaine Bailey, and Christopher de Guzman. 2016. “AHNAC’s Petition for CSA Exemption Under RFRA.” Accessed March 21, 2017, http://heartenergymedicine.blogspot.com/2016.
Strassman, Rick. 2001. DMT, the Spirit Molecule: A Doctor’s Revolutionary Research Into the Biology of Near-Death and Mystical Experiences. Rochester, VT: Park Street Press.
Szabo, A., A. Kovacs, E. Frecska, and E. Rajnavolgyi. 2014. “Psychedelic N,N-Dimethyltryptamine and 5-Methoxy-n,n-dimethyltryptamine Modulate Innate and Adaptive Inflammatory Responses Through the Sigma-1 Receptor of Human Monocyte-Derived Dendritic Cells.” PLOS ONE 9(8):e106533.
Szabo, A. 2015. “Psychedelics and Immunomodulation: Novel Approaches and Therapeutic Opportunities.” Frontiers in Immunology 6:358.