General situation
Ayahuasca (which contains DMT) is illegal to import, consume, possess, sell, and distribute in the United States. Two syncretic Christian churches have been granted exemptions to legally use it based on religious freedom: The União do Vegetal (UDV) through a Supreme Court ruling; the Santo Daime through a District Court in the State of Oregon and exemptions through the DEA in Los Angeles, CA and the State of Washington.
The DMT in ayahuasca is a Schedule I controlled substance regulated by the Controlled Substances Act (CSA). The statutory maximum punishment for possession or import of DMT or a substance found to contain DMT is 20 years imprisonment. There have been several legal incidents related to ayahuasca in the USA, however so far no person has ever been sentenced to prison for ayahuasca, but people have been arrested for it.
Although the Native American Church has an exemption from the CSA for the sacramental use of peyote, this exemption does not apply to sacramental use of ayahuasca.
International law
The Convention on Psychotropic Substances (1971) subjects several psychoactive compounds contained in plant species to international control. DMT (N,N-dimetyltryptamine, a tryptamine alkaloid contained in Psychotria viridis and other plants generally used in the preparation of ayahuasca) is a Schedule I controlled substance in the Convention. However, according to the International Narcotic Control Board (INCB) Report for 2010 (par. 284) ‘no plants are currently controlled under that Convention […]. Preparations (e.g. decoctions for oral use) made from plants containing those active ingredients are also not under international control’.
There is no general consensus among judges and law enforcement officials on whether ayahuasca is illegal because it contains DMT, or not. It is up to national governments to make the final decision in their own jurisdictions on whether to impose controls on these plants and preparations, including ayahuasca.
National drug legislation
DMT is regulated under Schedule I, section c), of the 2000 Controlled Substances Act (CSA), which includes hallucinogenic substances.
According to the 2006 U.S. Supreme Court decision in the case Gonzales v. O Centro Espirita Beneficente União do Vegetal (more details below) ayahuasca would be illegal to import/export to the U.S. under Article 7 of the 1971 United Nations Convention on Psychotropic Substances.
The Court interpreted ayahuasca as a “preparation” containing a substance (DMT) covered by the Convention. Also, people receiving ayahuasca may be arrested or have their shipments seized in customs. The unprepared plant ingredients of ayahuasca, Banisteriopsis caapi vine and Psychotria viridis leaves may be subject to import restrictions in the United States, even if these plants are not scheduled under the international drug control conventions. People importing B. caapi and P. viridis to make ayahuasca with have been arrested.
National CSA regulations do not apply to the plants B. caapi and P. viridis. Like some mescaline-bearing cacti including San Pedro, Trichocereus peruvianus, the plants B. caapi and P. viridis are legal to grow, buy and sell but illegal to prepare and consume.
The only group with a federal exemption from prosecution under the CSA for ayahuasca (hoasca for the UDV) is the UDV. The UDV is registered with the DEA as a legal importer, distributor and manufacturer of the controlled substance hoasca. The UDV achieved this right through a successful legal challenge decided by the United States Supreme Court (see below). Three Santo Daime churches in the State of Oregon received a federal exemption from prosecution, and there is also a registered legal Santo Daime church in Los Angeles.
Cases
Alan Thomas Shoemaker (2002)
A U.S. expat living in Iquitos (Peru) and Atlanta was arrested and imprisoned for importing 450 kilos of unprepared ayahuasca ingredients in the form of vine and leaf from Peru into the U.S. Facing the possibility of 20 years of imprisonment, Alan left the United States and is currently living and working in Iquitos where he is active in the local ayahuasca community. The charges against him have not been dismissed and Alan would likely be arrested if he ever tries to return to the US.
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal 546 U.S. 418 (2006)
Though no charges were filed, after U.S. customs seized 30 gallons of their sacrament hoasca (ayahuasca) intended for the Santa Fe, New Mexico branch of the UDV, the UDV filed a lawsuit claiming that the seizure was a violation of their right to religious freedom and seeking for the hoasca to be returned. The UDV claimed its use of hoasca was permitted under the 1993 Religious Freedom Restoration Act (RFRA). After seven years of litigation, the Supreme Court found that the government’s compelling interest in prohibiting the UDV’s use of hoasca did not stand up to the strict scrutiny required by RFRA and therefore that the UDV once registered with the DEA could use hoasca in their religious services throughout the United States.
Church of the Holy Light of the Queen v. Mukasey 615 F.Supp.2d 1210 (D.Or 2009) vacated in part by Church of the Holy Light of the Queen v. Holder 2011 WL 2784084 (9th Cir. 2011)
After judicial proceedings (triggered by a government seizure and the arrest of a church member) a group of 3 Oregon CEFLURIS (a particular branch of Santo Daime) churches achieved the right to use Daime (ayahuasca) used in the practice of their religion. Their right to import and distribute Daime is currently limited to congregations in Oregon and Los Angeles, where the individual churches proactively comply with certain DEA regulations, track their ayahuasca inventory, and have individualized permits to transport ayahuasca through customs. Their right, like the UDV’s, is based on using the Religious Freedom Restoration Act (RFRA) to get an exemption from the requirements of the Controlled Substances Act (CSA).
Taita Juan (2010)
Taita Juan Agreda Chindoy, a Cametsa traditional healer and Colombian national, was stopped in customs in the Houston International Airport, on October 19, 2010 formally arrested, and detained for possession of ayahuasca. Charged with possession and intent to distribute DMT, he faced up to 20 years in federal prison. Just five days after Taita Juan’s arrest a website was up and receiving donations for his legal defense fund as a grassroots international support network spread across Latin America, Europe, and the United States. Taita Juan’s supporters hired an attorney and charges against him were conditionally dropped on November 16, 2010. Taita Juan was deported back to Colombia. Taita Juan’s legal advisory team included Nancy Hollander, a lead attorney from Gonzales v. O Centro Espirita Benificiente Uniao do Vegetal.
Relevant documents
The legal status of indigenous peoples’ use of ayahuasca in the U.S. is unclear although the case of Taita Juan certainly indicates that the DEA considers its use subject to control. Ayahuasca use is indigenous to the Upper Amazon. At the moment of adhesion to the 1971 Convention, the United States made a reservation to Article 7 so that the peyote cultivated, distributed and used by the Native American Church could remain part of their religious rituals, but this reservation does not apply to ayahuasca.
The Native American Church has an exemption from the CSA for the sacramental use of peyote, but that exemption that does not apply to ayahuasca. Members of the Native American Church using ayahuasca as a sacrament should be aware that until one of them is arrested, brought before a court of law, and advances a successful RFRA claim, they will not be exempt from prosecution under the CSA.
The Oklevueha Native American Church’s (ONAC) RFRA claims have already failed several times for sacramental use of cannabis (see the case Oklevueha Native Am. Church of Hawaii, Inc. v. Holder). Another ONAC cannabis case from western Michigan resulted in a church member being sentenced to 18 months in prison.
Indigenous Amazonian healers and shamans entering the United States, as well as organizations facilitating their entry, should be aware that they may be arrested and their ayahuasca may be seized, as was the case of the renowned indigenous leader Taita Juan.
- Fax INCB 2001 Netherlands
- INCB letter ICEERS
- Hoasca 1971 Convention Legal Brief
- INCB Annual Report 2010
- INCB Annual Report 2012
- UN Declaration on the Rights of Indigenous Peoples
- TNI/ICEERS Ayahuasca Policy Report
- ICEERS Technical Report on Ayahuasca
- Plantaforma Ayahuasca Report Spain (Spanish)
- Declaration of Principles of the Religious Groups who consume the Tea Hoasca
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