Legal Status of Ayahuasca Herbs on the Line in the US

Legal Status of Ayahuasca Herbs on the Line in the USOn April 1st, 2002, U.S. ex-patriate Alan Shoemaker was arrested at Miami International Airport by agents of the United States Drug Enforcement Agency. Unbeknownst to Shoemaker, a sealed indictment had been handed down on January 24th, 2002 charging him with intent to distribute the Schedule 1 substance DMT (dimethyltryptamine). If convicted, Shoemaker may have faced up to 20 years in prison (Rankin 2002).

The charge stemmed from a plant material exportation business, Chinchillejo (Dragonfly) begun by Mariella Noriega in 1998. At the time, she and Alan Shoemaker were married and living in Iquitos, Peru, where Shoemaker was studying the shamanic use of the healing brew ayahuasca (Rankin 2002). Ayahuasca is a South American visionary tea traditionally brewed from the vine Banisteriopsis caapi (often simply called the ayahuasca vine), and an admixture plant, most commonly Psychotria viridis (chacruna), that contains DMT (ayahuasca-info.com acc. 2012; Labate 2011).

The confiscated Chinchillejo shipment contained about 200 kilos of Banisteriopsis caapi vine and 100 kilos of leafy material from Diplopterys cabrerana, a plant sometimes used as an ayahuasca admixture which is colloquially known as chaliponga or chacruponga. The DEA justified seizing the shipment on the grounds that the D. cabrerana leaves contained traces of DMT. A report from the Center for Cognitive Liberty stated that, “the seizure was extremely unusual as the plants were legal to export from Peru and had never been declared illegal here in the US. The shipment had been exported with all the necessary Peruvian and international paperwork completed” (Center for Cognitive Liberty 2003). Other than the illegal status of pure DMT in the U.S., there was no precedent for the confiscation of the shipment and the later arrest of Shoemaker; other Peruvian export companies had previously exported B. caapi and other visionary plants to the U.S. without legal incident. (CCLE 2003).

Alan Shoemaker’s lawyer Mark Sallee was successful in defending his client against the charge of trafficking in ayahuasca (marksalleelaw.com 2011). However, in 2002 when the trial against Shoemaker still loomed, the CCLE report stated that “the case has potential ramifications not only on other ayahuasca cases, but on the rights of all individuals to worship in the privacy of their homes as they see fit (CCLE 2003), referring to the growing use of ayahuasca as a spiritual sacrament in countries outside of its native South America. Indeed, Shoemaker’s case was arguably the opening shot in a discussion about the safety, abuse potential, and legitimate religious use of ayahuasca that would rise to the level of the Supreme Court a few years later (Roberts 2006; Panner 2009).

At issue is the almost globally illegal status of DMT, the entheogenic chemical present in ayahuasca tea. Pure DMT was first synthesized in 1931 by British chemist Richard Manske, who named it “nigerine” (ayahuasca-info.com 2012). Much later, in 1955, chemists first discovered DMT present in the seeds of the tree Anadenanthera peregrina, locally called “yopo”, which is native to tropical South America and parts of the Caribbean. A. peregrina would be the first of several plant species found to contain naturally-occurring DMT (ayahuasca-info.com 2012).

Naturally-occurring DMT was discovered at a time when many novel psychedelic or entheogenic substances were entering mainstream Western awareness. The revolution of the 1960s fueled a free-thinking ethos which extolled experimentation with such well-known mind-altering substances as mescaline, magic mushrooms, and the ubiquitous LSD, or “acid”. (ayahuasca-info.com 2012). The current international drug laws outlined in the Single Convention on Narcotic Drugs banned opium, coca, marijuana and other drugs with similar effects, but contained no provisions for regulating this new breed of mind-altering psychedelics. Entheogens were freely available in many parts of the Western world, and their effects were poorly understood by ordinary Americans as well as policy makers. In 1971, the UN passed the Vienna Convention on Psychotropic Substances, a new international drug law aimed at broadening the list of banned psychoactive chemicals. Along with mescaline, psilocybin, and LSD, the Vienna Convention banned DMT for human consumption, which resulted in its classification as a Schedule 1 substance in the United States (ayahuasca-info.com 2012). 

Thus the status of DMT in the United States appears to be clear cut: this is a banned psychotropic chemical, and anyone possessing plants shown to contain naturally-occurring DMT should be aware they’re going against the law. However, in the practical wording of the Vienna Convention, the law becomes more ambiguous: in his commentary on the Convention, Adolf Lande, Secretary for the United Nations Office of Legal Affairs, wrote that

“The cultivation of plants from which psychotropic substances are obtained is not controlled by the Vienna Convention. Neither the crown (fruit, mescal button) of the Peyote cactus or the roots of the plant Mimosa hostilis nor psilocybe mushrooms themselves are included in Schedule 1, but only their respective principles, mescaline, DMT, and psilocin” (Lande 1976).

This shading of the law injects unwelcome uncertainty for those who might be trying to determine whether or not it is legal for them to possess either a prepared ayahuasca brew or one of its psychotropic components.  The wording of the current law states in no uncertain terms the illegality of manufacturing pure DMT in a high-tech preparation (Lande 1976); but what about drinking a traditionally prepared brew, or eating the fresh plant?

In a case involving practitioners of the ayahuasca-based religion Santo Daime in 2005, the Paris Court of Appeal ruled that traditional preparations of ayahuasca tea did not fall under the Vienna Convention’s provisions banning DMT-containing substances, suggesting traditional ayahuasca brews consumed in a religious context might represent a loophole in the international law (ayahuasca-info.com 2012). . However, a later ruling of the court in May of that year overturned the exemption in favor of a more restrictive French law which added several species of DMT-containing plants (including P. viridis and D. cabrerana), Banisteriopsis caapi, its active compound harmaline, and several chemically related compounds to the list of banned stupéfiants in France (Houssin 2005). Alan Baverman, the U.S. Magistrate presiding over Shoemaker’s trial, argued that congressional efforts to prevent the use of illegal substances such as DMT were aimed at the human consumption of DMT in any extracted form, whether  in  a concentrated synthetic extract or the leaves of a plant such as Diplopterys cabrerana (Rankin 2002).

 However, there are notable exceptions to this rule: in the United States, the ayahuasca brew and its psychoactive constituents have now been legally recognized as the official sacrament of two different religions, the Santo Daime church and the UDV (Uñiao do Vegetal) (Roberts et al 2006; Panner 2009). Both churches have members living in the United States as well as South America, and both religions cite the consumption of the spiritually healing brew ayahuasca as central to their religious faith. ((ayahuasca-info.com 2012;  Panner 2009).

The older organization is Santo Daime, a syncretic religion that combines ritual ayahuasca consumption with Catholic Christian beliefs. The Santo Daime church originated nearly 400 years ago in Brazil, a time when Spanish Catholic priests were actually trying to eradicate traditional ayahuasceros and their cosmology (ayahuasca-info.com 2012). Santo Daime adherents treat ayahuasca, which they call “daime”, as a religious sacrament to be used in a context of spiritual exploration and healing.  There are at least 15 different types of ritual occasions at which daime tea may be consumed, including marriages, Christian and calendrical holidays such as Christmas and New Year’s, and healing sessions for church members who are unwell (ayahuasca-info.com 2012). The UDV is a modern church which treats ayahuasca along similar lines: as a magical or spiritual preparation which manifests the spirit and thus should only be used in a religious rather than recreational context (Labate 2011). 

In order to fully practice their religion, Stateside branches of  the UDV and Santo Daime argued in two separate court cases that they required a religious exemption from the law banning the importation of DMT-containing plants into the United States. A significant step forward came in 2006, when the U.S. Supreme Court ruled that the UDV’s use of ayahuasca tea was religious rather than recreational, and was surrounded by rituals controlling its appropriate use (Roberts et al 2006). Judge Owen M. Panner ruled in Santo Daime’s case three years later that banning the ritual use of ayahuasca by Santo Daime members would significantly burden their ability to practice their religion (Panner 2009). He granted Santo Daime an exemption from the ban on importation and use of DMT-containing substances under the Religious Freedom Restoration Act (Panner 2009).

The decisions to allow the UDV and Santo Daime churches to import ayahuasca built upon the Supreme Court’s finding that there is virtually no recreational market for ayahuasca in the United States, and thus little likelihood that the UDV’s ayahuasca imports would be susceptible to diversion (i.e, sale on the illegal drugs market) (Robert at al 2006). Thus the UDV was allowed to import ayahuasca for ceremonial purposes even though one of the component plants in any ayahuasca brew contains DMT.

Chief Justice John Roberts argued that the UDV’s use of sacramental ayahuasca was comparable to Southwestern Native Americans’ ritual use of the peyote cactus. Although it contains the Schedule 1 substance mescaline, a ruling passed in 1971 granted a religious exemption which enabled members of any federally recognized Native American tribe to ritually take peyote. According to Roberts, “The well-established peyote exception also fatally undermines the Government’s broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA [Religious Freedom Restoration Act]” (Roberts et al 2006, 4). 

However, the consumption of any DMT-containing plant outside the context of these judicially recognized churches is still federally illegal, as illustrated by the strict controls surrounding the UDV and Santo Daime’s importation of ayahuasca, which is carefully monitored by the DEA to ensure that not one ounce of plant material is left unaccounted for (Labate 2011). Adding to the confusion about ayahuasca’s legal status is that the brew and its component plants are legal to consume in their Amazonian countries of origin, notably Brazil and Peru, where tribes have used ayahuasca in ceremonies and healing probably for millennia (ayahuasca-info.com 2012). 

It’s still unclear what powers, if any, the United States government has to police the importation of the technically legal plants Banisteriopsis caapi and Diplopterys cabrerana into the States. The recent religious exemptions for ayahuasca churches suggest that what is really at legal issue in the United States is not so much the chemical ingredients in ayahuasca as its appropriate use. Though it represents a slim crack in the bulwark thrown up against psychedelic substances in this country, the exemption granted for ayahuasca used in a spiritual context offers at least some hope that the government will come to recognize ayahuasca as a sacramental brew with real healing value, instead of as a drug of abuse.

 

REFERENCES

“A General Introduction to Ayahuasca”, acc. March 23rd, 2012, http://www.ayahuasca-info.com/introduction/.

“A General Introduction to Ayahuasca: Rituals and Ceremonies”, acc. March 23rd, 2012, http://www.ayahuasca-info.com/ritual/

“Church of the Holy Light of the Queen v. Michael Mukasey et al.”  Ruled March 1st, 2009, filed March 19th, 2009 by Judge Owen M Panner, United States District Court for the District of Oregon

 “Gonzales, Attorney General et al v. O. Centro Espirita Beneficente Uniao do Vegetal et al”. Certiorari to the United States Court of Appeals for the Tenth Circuit. No 04-1084. Argued November 1st, 2005— Decided February 21st, 2006. Opinion delivered by Chief Justice John Roberts. 

 Houssin, D. Director General of Health. “Arrêté du 20 avril 2005 modifiant l’arrêté du 22 fevrier 1990 fixant la liste des substances classeés comme stupéfiants”. JORF No. 102, May 3rd, 2005.

 Labate, Beatriz Caiuby. “Paradoxes of Ayahuasca Expansion: The UDV-DEA agreement and the limits of freedom of religion.” Informa Healthcare Report, in series Drugs: education, prevention and policy, Informa UK Ltd. 2011.

 Lande, Adolf, “Commentary on the Convention of Psychotropic Substances, Done at Vienna 21 February 1971.” United Nations: New York, 1976

“Legal Status of Ayahuasca Herbs on the Line in U.S.”. Center for Cognitive Liberty, January 1st, 2003.

Rankin, Bill. “Trial Ordered in Case of Hallucinogenic Plants”, Atlanta Journal-Constitution, October 24th, 2002.

“Santo Daime Overview”, accessed 3/23/2012, http://www.ayahuasca.com/spirit/syncretic-movements/santo-daime-syncretic-movements/santo-daime-overview/.

“The Law Office of Mark Sallee: About Mark Sallee”, last modified 2011, http://www.marksalleelaw.com/about.php.

 

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1 Comment

  1. Rex Rudi says:

    A friend of mine have recently been arrested in Norway for importing 3 liters of ayhuasca (the shaman was kind and sent him a lot more than he ordered as he knew that is was going to a good cause) that was intended to be used in shamanic ceremonies and to cure addictions. The reason for the arrest was that it contained 1% DMT and he is beeing charged for trafficking narcotics with a risk of 21 years in prison. In United KIngdom there is a similar case that have been going on for more than 2 years now.

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