By Gayle Highpine (*) written especially to this blog (**)

This article is part of the series of controversies raised by the Ayahuasca Healing Retreats (see here, here and here.)

Ayahuasca Healing Retreats founder Trinity de Guzman shows a misunderstanding of the law when he tells an interviewer:

[Ayahuasca is] an uncontrolled substance. But DMT, which can be extracted from the plants, is a controlled Schedule 1 drug by the DEA. Ayahuasca itself is not a scheduled drug, but it’s legal in a religious and spiritual setting. So, simply stated, ayahuasca is legal if your intentions are sincerely religious. And it’s legal under a church. You have to be a member of a church which has that legal protection.   

On the contrary, ayahuasca IS illegal in the United States; it is covered by the scheduling of DMT.  The US Supreme Court, in the UDV decision, clarified that, in the US, ayahuasca (if it contains DMT) is included in the laws prohibiting DMT:

[T]he 1971 United Nations Convention on Psychotropic Substances… signed by the United States and implemented by the Controlled Substances Act, calls on signatories to prohibit the use of hallucinogens, including DMT. …The Convention provides that “a preparation is subject to the same measures of control as the psychotropic substance which it contains,” and defines “preparation” as “any solution or mixture, in whatever physical state, containing one or more psychotropic substances.” Hoasca is a “solution or mixture” containing DMT; the fact that it is made by the simple process of brewing plants in water, as opposed to some more advanced method, does not change that. To the extent the commentary suggests plants themselves are not covered by the Convention, that is of no moment — the UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a “preparation” under the Convention.  (citations omitted)

Some background on the laws:

In 1970, the United States Congress passed the Controlled Substances Act (CSA), which included DMT in Schedule 1, the list of substances with the highest legal penalties.

The following year, the United Nations passed a treaty called the Convention on Psychotropic Substances, with provisions very similar to the CSA. DMT was again included in the list of Schedule 1 drugs.

And every country in the world that was a UN member signed this treaty.

As a result, every country in the world has a law against DMT.

However, when the Convention was being adopted, objections were raised about traditional uses by indigenous populations of plants containing substances that were being outlawed. Mexico, in particular, argued that it should not apply to wild-growing plants such as peyote cacti or psilocybin mushrooms. Ultimately no plants were included in the schedules of the 1971 Convention. Only drugs were scheduled, not the plants containing them, in their natural form.

The drug schedules in the Convention are considered to be the minimum prohibitions that each country must have. A country can outlaw more substances, but is required to outlaw at least the substances listed in the Convention. So countries were not required to outlaw plants and natural plant materials, but they did have the option of outlawing them.

When the Netherlands Santo Daime was preparing its case in 2001, the International Narcotics Control Board of the UN (INCB) was contacted to ask if ayahuasca would be considered natural plant material and thus exempt from the drug scheduling. After all, ayahuasca had a long history of traditional indigenous usage, just like peyote and psilocybe.

A factor in the Court’s decision in the Santo Daime’s favor was a fax from the INCB secretary, Herbert Schaepe, to the Netherlands Ministry of Public Health, which stated that, at least as far as the UN was concerned, the exemption for plants extended to ayahuasca, and, therefore, countries were not required to include ayahuasca in the prohibition of DMT:

[P]reparations (e.g. decoctions) made of these plants, including ayahuasca are not under international control and, therefore, not subject to any of the articles of the 1971 Convention.

This meant that countries were not required to consider ayahuasca to be covered by the laws against DMT, but they could — it was up to each country to interpret the laws against DMT and decide whether those laws covered ayahuasca or not.

But most countries of the world have not had any ayahuasca legal cases or passed a specific law about ayahuasca. That means that in most countries of the world, ayahuasca is in a legislatively undefined area.   If someone were to be arrested for ayahuasca in most countries, it would be up to the individual judge to decide if their country’s laws against DMT apply to ayahuasca or not.

Ayahuasca had had this same ambiguous, or rather contested, legal status in the United States before the UDV case. In the UDV case, one of the issues was whether the United States laws against DMT actually covered ayahuasca. The government argued that it had a treaty obligation under the 1971 Convention to outlaw ayahuasca. The UDV countered that the INCB had said that the laws against DMT did not have to apply to ayahuasca because the treaty covered only “preparations,” not plants in their natural form.

The Supreme Court responded:

To the extent the commentary suggests plants themselves are not covered by the Convention, that is of no moment — the UDV seeks to import and use a tea brewed from plants, not the plants themselves, and the tea plainly qualifies as a “preparation.”

So, the question was settled. According to the Supreme Court ruling, ayahuasca is a “preparation,” and if that preparation includes DMT, ayahuasca is covered by the laws prohibiting DMT.

Fortunately, although the UDV lost on this question, this did not sink their case, since it was based on several foundations. The UDV ultimately prevailed on the religious freedom argument.

But the exemption granted to the UDV does not automatically apply to other groups simply because they claim to be “churches” or their use “religious.” Each case is evaluated on its own merits.

But without such an exemption, the use of ayahuasca (that contains DMT) is illegal in the United States.

Note from the editor:

(*) Gayle Highpine is an indigenous rights activist and a moderator of the Ayahuasca forums at Contact: [email protected].
From the editor:
(**) This note does not necessarily reflect the position of this site. Other perspsectives are also welcomed.




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