Religious Freedom and the Global Regulation of Ayahuasca 9780367028756, 9781032439327, 9780429001161

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Religious Freedom and the Global Regulation of Ayahuasca

This book offers a comprehensive view of the legal, political, and ethical challenges related to the global regulation of ayahuasca, bringing together an international and interdisciplinary group of scholars. Ayahuasca is a psychoactive brew containing N,N-Dimethyltryptamine (DMT), which is a Schedule I substance under the United Nations Convention on Psychotropic Substances, and the legality of its ritual use has been interpreted differently throughout the world. The chapters in this volume reflect on the complex implications of the international expansion of ayahuasca, from health, spirituality, and human rights impacts on individuals, to legal and policy impacts on national governments. While freedom of religion is generally protected, this protection depends on the recognition of a religion’s legitimacy, and whether particular practices may be deemed a threat to public health, safety, or morality. Through a comparative analysis of different contexts in North America, South America, and Europe in which ayahuasca is consumed, the book investigates the conceptual, philosophical, and legal distinctions among the fields of shamanism, religion, and medicine. It will be particularly relevant to scholars with an interest in indigenous religion and in religion and law. Beatriz Caiuby Labate (Bia Labate) is a queer Brazilian anthropologist based in San Francisco. She has a PhD in social anthropology from the University of Campinas (UNICAMP), Brazil. Her main areas of interest are the study of plant medicines, drug policy, shamanism, ritual, religion, and social justice. She is Executive Director of the Chacruna Institute for ­Psychedelic Plant Medicines and serves as Public Education and Culture Specialist at the Multidisciplinary Association for Psychedelic Studies (MAPS). She is also Visiting Scholar at Naropa University’s Center for Psychedelic ­Studies and Advisor at the Veteran Mental Health Leadership Coalition. Dr. Labate is a co-founder of the Interdisciplinary Group for Psychoactive Studies (NEIP) in Brazil and editor of its site. She is author, co-author, and co-editor of twenty-six books, two special-edition journals, and several peer-reviewed articles (https://bialabate.net).

Clancy Cavnar has a doctorate in clinical psychology (PsyD) from John F. Kennedy University in Pleasant Hill, CA. She currently works in private practice in San Francisco, and is Co-Founder and a member of the Board of Directors of the Chacruna Institute for Psychedelic Plant Medicines. She is also a research associate of the Interdisciplinary Group for Psychoactive Studies (NEIP). She combines an eclectic array of interests and activities as clinical psychologist, artist, and researcher. She has a master of fine arts in painting from the San Francisco Art Institute, a master’s in counseling from San Francisco State University, and she completed the Certificate in Psychedelic-Assisted Therapy program at the California Institute of Integral Studies (CIIS). She is author and co-author of articles in several peer-reviewed journals and co-editor, with Beatriz Caiuby Labate, of eleven books. For more information see: http://www.drclancycavnar.com

Routledge Studies in Religion

Muslims of Post-Communist Eurasia Edited by Galina M. Yemelianova and Egdūnas Račius Christian Orthodox Migrants in Western Europe Secularization and Modernity through the Lens of the Gift Paradigm Maria Hämmerli Domestic Demons and the Intimate Uncanny Edited by Thomas G. Kirsch, Kirsten Mahlke and Rijk van Dijk Jews and Muslims in London and Amsterdam Conflict and Cooperation, 1990–2020 Sipco J. Vellenga and Gerard A. Wiegers Alternative Spirituality, Counterculture, and European Rainbow Gatherings Pachamama, I’m Coming Home Katri Ratia Religious Freedom and the Global Regulation of Ayahuasca Edited by Beatriz Labate and Clancy Cavnar Interreligious Encounters in Europe Sites, Materialities and Practices Edited by Jan Winkler, Laura Haddad, Julia Martínez-Ariño and Giulia Mezzetti

For more information about this series, please visit: https://www.routledge.com/ religion/series/SE0669

Religious Freedom and the Global Regulation of Ayahuasca Edited by Beatriz Caiuby Labate and Clancy Cavnar

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 selection and editorial matter, Beatriz Caiuby Labate and Clancy Cavnar; individual chapters, the contributors The right of Beatriz Caiuby Labate and Clancy Cavnar to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 9780367028756 (hbk) ISBN: 9781032439327 (pbk) ISBN: 9780429001161 (ebk) DOI: 10.4324/9780429001161 Typeset in Sabon by codeMantra

Contents

List of Contributors

Introduction: The Regulation of Ayahuasca and Its Challenges: From the Global to the Local

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1

B E AT R I Z C A I U BY L A B AT E , C L A N C Y C AV N A R A N D H EN R IQU E F ER NA N DE S A N T U N E S

1 Ayahuasca Vision 2021: Legal Status of Ayahuasca in the United States

17

S E A N T. M c A L L I S T E R

2 Church of the Holy Light of the Queen v. Mukasey: The Regulation of a Santo Daime Church in the State of Oregon

38

H EN R IQU E F ER NA N DE S A N T U N E S

3 Intersecting Cultures: Exploring Ayahuasca’s Legal and Ethical Journey in Canada

51

E M M A G A R RO D A N D K AT R I N A B L O M M A E RT

4 Regulating Ayahuasca in the United Kingdom: Proactive Approaches

69

C H A R L O T T E WA L S H

5 Santo Daime in Belgium and the Netherlands: Prejudice, Pluralism, and the Daunting Quest for Religious Freedom in Europe BEN MEEUS

85

viii Contents

6 The Landscapes of Ayahuasca in Contemporary France

106

C L A R A N OVA E S A N D M A R I E RO S E M O RO , T R A N S L AT E D F RO M F R E N C H BY J O A N N C A H N

7 Ayahuasca and Freedom of Religion in Australia: Entheogens in a Post-Colonial Shadow

122

A M A R DH A LL , TORST EN W I EDE M A N N A N D M A N AV S AT I J A

8 A Genealogy of the Ayahuasca Cultural Heritage Registration Process in Brazil

142

B E AT R I Z C A I U BY L A B AT E A N D G L AU B E R LOU R E S DE ASSIS

9 “Authorization? That’s Outrageous:” Ayahuasca Environmental Legislation and Indigenous Populations in Brazil

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B E AT R I Z C A I U BY L A B AT E , H E N R I Q U E F E R N A N D E S A N T U N E S A N D IGOR F ER NA N DE S A N T U N E S

10 Debates on the Legality and Legitimacy of Yage in Colombia 177 A LH ENA CA ICEDO F ER NÁ N DEZ

11 Ayahuasca in Uruguay: Legal Aspects and Public Debates on Drugs and Religion

193

J UA N S C U RO , I S M A E L A P U D A N D S E B A S T I Á N T O RT E RO L A

12 Mystics or Criminals? “Cults,” Religion, and Drugs

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M A S S I M O I N T ROV I G N E

13 A Defense Expert Witness on Ayahuasca: An Interview with José Carlos Bouso

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B E AT R I Z C A I U BY L A B AT E

Afterword: A Call for Public Support against the Current Demonization of Ayahuasca Practices in Spain

239

B E AT R I Z C A I U BY L A B AT E , H E N R I Q U E F E R N A N D E S A N T U N E S , G L AU B E R L O U R E S D E A S S I S A N D C L A N C Y C AV N A R

Index

249

Contributors

Dr. Henrique Fernandes Antunes is a postdoctoral researcher at the Centre d’Étude des Mouvements Sociaux (CEMS) of the École des Hautes Études en Sciences Sociales (EHESS). He has a PhD in Anthropology from the University of São Paulo (2019), with a research internship as a visiting scholar at the University of California Berkeley. He holds a MA degree in Anthropology from the University of São Paulo (2012) and a BA in Social Sciences (2006) and Anthropology (2008) from the Universidade Estadual Paulista Júlio de Mesquita Filho (UNESP-FFC). He is a member of the research group Religion in the Contemporary World of the Brazilian Center of Analysis and Planning (CEBRAP). He is also a member of the Ayahuasca Community Committee of the Chacruna Institute for Psychedelic Plant Medicines, and a researcher at the Interdisciplinary Group for Psychoactive Studies (NEIP). He specialized in the fields of urban anthropology, anthropology of religion, anthropology of secularism, and sociology of public problems. Igor Fernandes Antunes is a master’s candidate in the Sustainability Program at University of São Paulo. He has a degree in Environmental Management from the University of São Paulo (2020). During his undergraduate studies, he developed research on the relationship between religion, society, and environment, focusing on the socio-environmental impacts linked to the expansion of the religious use of ayahuasca. His current research focuses on the management of the plant species that make up ayahuasca and forms of sustainability of ayahuasca groups in Brazil. He is an associated researcher of the Research Center for Religions in the Contemporary World of the Brazilian Center for Analysis and Planning (CEBRAP) and the Interdisciplinary Group for Psychoactive Studies—(NEIP). Katrina Blommaert is a research consultant and midwife in training, living, and working on the traditional, unceded territory of the xwmeθkwey’em (Musqueam) Nation. Katrina has worked in psychedelic research for eight years, and managed the successful completion of phase II and phase III clinical trials for 3,4-Methylenedioxymethamphetamine (MDMA)-assisted psychotherapy for post-traumatic stress disorder

x Contributors (PTSD) in Canada. She has worked in her community with youth experiencing mental health and substance use challenges, as well as in family program planning, facilitation, and evaluation. She is passionate about ethical research, community autonomy, and accessible care. José Carlos Bouso is a psychologist and has a PhD in pharmacology. His areas of interest are psychopharmacology and the therapeutic properties of entactogens, psychedelics, and cannabis. He developed the first authorized clinical trial to study the therapeutic effects of MDMA (“ecstasy”) in the treatment of post-traumatic stress disorder in female victims of sexual assault. He has done neuroimaging and neuropsychiatric studies with long-term users of substances such as cannabis, cocaine, and ayahuasca, as well as studies of the acute effects of different natural and synthetic drugs. He participated in the regulation process of cannabis in Uruguay, giving educational and scientific conferences in different contexts and institutions there. Currently, he is Director of Scientific Projects at the ICEERS Foundation, where he conducts studies on the therapeutic effects of ayahuasca, the medical properties of cannabis, and the potential anti-addictive benefits of ibogaine. Ismael Apud is adjunct professor at the Facultad de Psicología, Universidad de la República (UdelaR, Uruguay). He is a researcher included in the National System of Researchers, Agencia Nacional de Investigación e Innovación (SNI-ANII, Uruguay) and co-director of Arche, Interdisciplinary Group of Psychedelic Studies (UdelaR). He has a PhD in anthropology from Universitat Rovira I Virgili (URV, Spain), a master’s degree in the methodology of scientific research from the Universidad Nacional de Lanús (UNLa, Argentina), and degrees in psychology and in social anthropology, both from UdelaR. His research areas include mental health, religious and spiritual practices, and psychedelics. He is author and co-author of several books, chapters of books, and scientific articles about these topics. Some of the articles address the use of ayahuasca in spiritual, religious, and clinical settings. His theoretical approach combines medical anthropology, cognitive science of religion, and psychology. Clancy Cavnar has a doctorate in clinical psychology (PsyD) from John F. Kennedy University in Pleasant Hill, CA. She currently works in private practice in San Francisco, and is Co-Founder and a member of the Board of Directors of the Chacruna Institute for Psychedelic Plant Medicines. She is also a research associate of the Interdisciplinary Group for Psychoactive Studies (NEIP). She combines an eclectic array of interests and activities as clinical psychologist, artist, and researcher. She has a master of fine arts in painting from the San Francisco Art Institute, a master’s in counseling from San Francisco State University, and she completed the Certificate in Psychedelic-Assisted

Contributors  xi Therapy program at the California Institute of Integral Studies (CIIS). She is author and co-author of articles in several peer-reviewed journals and co-editor, with Beatriz Caiuby Labate, of eleven books. For more information see: http://www.drclancycavnar.com Dr. Amar Dhall has degrees in Law, Construction Management and Economics along with professional training as a psychotherapist, counselor and coach. He has published and presented work in a number of fields including law, shamanism, and trauma. Dr. Amar currently works with individuals and groups to support the blossoming of human potential. He is the Centre Director for The Trauma and Well-Being Centre and a Director of Primal Intelligence, both of which are based in Australia and The Lawyers’ Center Performance and Well-Being in the United States. Glauber Loures de Assis has a PhD in sociology from the Federal University of Minas Gerais (UFMG), Brazil. He is Research Associate at the Interdisciplinary Group for Psychoactive Studies (NEIP), coordinator of the communication department of the New Age Institute, and technical coordinator of ICEFLU, the largest institution of the Santo Daime religion in the world. He has developed research on Santo Daime groups from Brazil and Europe and has also studied the sociology of religion from a wider perspective. His main interests include the ayahuasca religions, New Religious Movements (NRMs), the internationalization of the Brazilian religions, and drug use in contemporary society. He is also Associate Director of Chacruna Latinoamérica in Brazil. Alhena Caicedo Fernández  is Associate Professor at the Department of Anthropology at Universidad de los Andes, Bogotá, Colombia. She completed her BA in anthropology at Universidad Nacional de Colombia; her first MA in social anthropology at the École des Hautes Études en Sciences Sociales (EHESS) in France; her second MA in ethnographic and documentary film at Paris X—Nanterre; and, finally, her PhD in social anthropology at EHESS, France. She is a member of the Latin American think tank RaizAL. Her research has focused on the expansion of the yagecero field in Colombia and Latin America; the transformation of yagé neoshamanism, heritage processes, and the social uses of traditional indigenous medicine. Emma Garrod,  RN, MSN, is an educator, researcher, and co-director of the BC Centre on Substance Use Addiction Nursing Fellowship. In twelve years of nursing, Emma has worked in many settings, including emergency departments, street outreach, research and education, specializing in HIV, harm reduction, and substance use. She is committed to enhancing patient care by creating safer spaces in healthcare for people who use drugs, creating sensible drug policy, expanding treatment and harm reduction options, and scaling up healthcare provider expertise.

xii Contributors Massimo Introvigne,  a law and philosophy graduate, was, until 2016, a professor of sociology of religions at Pontifical Salesian University in Torino, Italy. He is the managing director of CESNUR, the Center for Studies on New Religions, also in Torino. In 2011, he served as the representative of OSCE (Organization for Security and Cooperation in Europe) for combating racism, xenophobia, and intolerance and discrimination against Christians and members of other religions, and from 2012 to 2015 as Chairperson of the Observatory of Religious Liberty, created by the Italian Ministry of Foreign Affairs. He is the author of some 70 books on religious pluralism and new religious movements. Dr. Beatriz Caiuby Labate (Bia Labate) is a queer Brazilian anthropologist based in San Francisco. She has a Ph.D. in social anthropology from the University of Campinas (UNICAMP), Brazil. Her main areas of interest are the study of plant medicines, drug policy, shamanism, ritual, religion, and social justice. She is Executive Director of the Chacruna Institute for Psychedelic Plant Medicines and serves as Public Education and Culture Specialist at the Multidisciplinary Association for Psychedelic Studies (MAPS). She is also Visiting Scholar at Naropa University’s Center for Psychedelic Studies and Advisor at the Veteran Mental Health Leadership Coalition. Dr. Labate is a co-founder of the Interdisciplinary Group for Psychoactive Studies (NEIP) in Brazil and editor of its site. She is author, co-author, and co-editor of twenty-six books, two special-­edition journals, and several peer-reviewed articles (https://bialabate.net). Sean T. McAllister is an attorney specializing in the intersection of regulatory and corporate law, and also is an experienced commercial litigator. He has been a leader in the emerging industries of cannabis, hemp, and psychedelic medicines. Sean is licensed to practice law in Colorado and California. His work in psychedelics has included: Advised clients on what is allowed in cities that have decriminalized psychedelics; Advised clients looking to obtain a religious exemption from criminal law for the use of psychedelics under the Religious Freedom Restoration Act; Seeking Drug Enforcement Administration (DEA) licensure for companies to manufacture Schedule I drugs lawfully in the United States; Steering committee member on Colorado’s Natural Medicine Health Act; Executive Officer of the Denver Psilocybin Mushroom Policy Review Panel, 2020; Chair of the Board of Directors for the Chacruna Institute for Psychedelic Plant Medicines and member of Chacruna’s Council for the Protection of Sacred Plants. Ben Meeus holds a master’s degree in international and European law (cum laude) from the Free University of Brussels and a second master’s degree in Latin American studies at the Centre for Latin American Research and Documentation (CEDLA) in Amsterdam. His main areas of work relate to the rights of Indigenous Peoples and minorities, with a special

Contributors  xiii focus on land rights, environmental protection, culture, and spirituality. Among others, he has written about the transnationalization of Santo Daime and has spoken on various occasions about the ethical and legal implications of the expansion of the traditional use of ayahuasca by religious minorities and Indigenous Peoples, including during the World Ayahuasca Conference (AYA2019) and the Indigenous Ayahuasca Conferences. Ben has worked with and for Amnesty International, the United Nations High Commissioner for Human Rights (OHCHR) and—at the time of writing—works for the United Nations Environment Program (UNEP) in support of the Interfaith Rainforest Initiative (IRI), a global multi-faith alliance working to bring the commitment, influence, and moral authority of religions to efforts to protect the world’s rainforests and the Indigenous Peoples that serve as their guardians. He also serves as an Advisor to the Yorenka Tasorentsi Institute (YTI), presided by Asháninka leader Benki Piyãko. Marie Rose Moro is a child and adolescent psychiatrist and professor of child and adolescent psychiatry at University Paris Descartes. After completing a degree in philosophy, she obtained degrees in medicine and psychology. A doctor of medicine and in human sciences, she is also a psychoanalyst and writer. For 25 years, first in Avicenne Hospital in the suburbs of Paris, and then in the center of Paris, in Cochin Hospital, she has been developing a transcultural clinic that tries to adapt mental healthcare settings, techniques, and research methods to immigrant families and their children. She is also developing a new pluridisciplinary way of taking care of adolescents. Head of the Department of Child and Adolescent Psychiatry of Cochin Hospital, Technical Advisor for Doctors Without Borders, director of a research team in transcultural psychiatry at Unité INSERM 669 and at the Laboratoire de psychologie of Paris Descartes University, Editor-in-Chief of the journal L’autre, she is one of today’s leading figures in transcultural psychiatry in France. Clara Novaes  is a clinical psychologist and psychoanalyst, she holds a doctorate in clinical psychopathology from the University of Paris Descartes Sorbonne. She worked at the Clinique De La Borde founded by Jean Oury with the presence of Felix Guattari for 15 years with people suffering from psychosis. Now she combines her clinico-political work with work around early childhood and her interest in the productions of contemporary subjectivity related to ayahuasca experiences, psychoanalysis, anthropology, politics, and literature. She wrote articles on the urban experience of ayahuasca after successfully completing a doctoral thesis entitled: The Urban Experience of Ayahuasca. Landscape of Contemporary Subjectivities [Ethnopsychoanalytical Approach], in 2011. The thesis combined clinical work (17 semi-structured interviews were

xiv Contributors conducted with people who use ayahuasca in an urban ritual context in Brazil, France and the Netherlands) and research field (mapping of an urban agency that has carried out ayahuasca in eastern Amazonia, São Paulo, and the Netherlands). She is also a member of the International Association for Ethnopsychoanalysis and of the Interdisciplinary Group for Psychoactive Studies (NEIP). For more information, see: http://neip. info/pesquisadores/clara-novaes/ Manav Satija is a lawyer and consultant with extensive experience in human rights, indigenous rights, social justice and environmental law. Manny worked in Geneva, Switzerland as a human rights advisor before returning to Australia to focus on justice for First Nations communities, including in bush courts in remote communities across the Northern Territory. Manny was part of the Royal Commission into Institutional Responses to Child Sexual Abuse and was involved in conducting over 400 historic private sessions with survivors across Australia. Manny is currently consulting to a range of environmental, human rights, and indigenous justice organizations and has been intimately involved in developing and implementing reparations and healing initiatives for Stolen Generations Survivors across New South Wales. Manny was an expert legal panel member of the 2019 Citizen’s Inquiry into the Health of the Darling River and Menindee Lakes, a special hearing of the Australian Peoples’ Tribunal for Community and Nature’s Rights. Manny has published and presented papers relating to earth rights, earth ethics, drug policy, and human rights and facilitates novel experiential workshops at conferences and in the corporate environments. Manny’s passion for non-adversarial justice, healing, and reparations has led him to training as a coach and gestalt psychotherapist. Alongside his legal and consulting work Manny now runs a private coaching and therapy practice and is passionate about infusing emotionally intelligent and therapeutic approaches into the practice of law. Juan Scuro  is adjunct professor at Facultad de Humanidades y Ciencias de la Educación, Universidad de la República (UdelaR, Uruguay). He is a researcher included in the National System of Researchers, Agencia Nacional de Investigación e Innovación (SNI-ANII, Uruguay), and co-director of Arche, Interdisciplinary Group of Psychedelic Studies (UdelaR). He has a PhD and a master’s degree in social anthropology from the Universidade Federal do Rio Grande do Sul (UFRGS, Brazil), and degree in anthropology from the UdelaR. His research areas are religion, spirituality, and drugs. He is author and co-author of several chapters of books, and articles about ayahuasca, cannabis, secularism, neoshamanism, and Afro-Brazilian religions. Sebastián Torterola  is a translator, journalist, and researcher. He has a master’s degree in Compared Literature and Theory of Literature from

Contributors  xv the Universidade do Estado do Rio de Janeiro (UERJ, Brazil), and a degree in Communication Sciences from Universidad de la República (UdelaR). His research areas combine literature, drugs, and spirituality. He is author and co-author of articles about hashish, ayahuasca, entheogens, and neoshamanism in Latin America. Charlotte Walsh  (LLB; MPhil) is a Lecturer in Law at Leicester Law School, where she runs an undergraduate course on Criminology, largely concerned with drug policy. Her main research focus is on the interface between psychedelics and the law, viewed from a liberal, human rights-based perspective; she has published widely on this subject, in both journals and edited collections, along with being a regular speaker at psychedelic conferences. Over the years, Charlotte has been involved in advising people who are being prosecuted for activities involving plant psychedelics. Torsten Wiedemann is a consultant on legal issues relating to plant drugs and new psychoactive substances in Australia. His background in ethnopharmacology and decades of work in drug law reform provide a comprehensive insight into the Australian legal landscape on plant medicines. Torsten organized ethnobotany conferences in Australia, owns Shaman Australis Botanicals, and runs The Corroboree (SAB) internet forums as well as many other plant community and research projects.

Introduction The Regulation of Ayahuasca and Its Challenges: From the Global to the Local Beatriz Caiuby Labate, Clancy Cavnar and Henrique Fernandes Antunes This volume is an initiative of the Chacruna Institute of Psychedelic Plant Medicines; in particular, the Ayahuasca Community Committee and the Council for the Protection of Sacred Plants, two groups that work on documentation, education, and advocacy for the legality of sacred plants, as well as consultation in legal cases. One of the main goals of the Institute is to promote the cultural legitimacy of plant medicines; hence, the aim of the chapters gathered here is to shed light on the consequences and controversies around the regulation processes of ayahuasca in a global context. We would like to add that the book took several years to reach publication and faced many challenges. Many of the original chapters were commissioned from non-academic authors due to the lack of a specialized literature, and, due to changing laws and policies, some of these were hard to complete. In addition, many lawyers, religious scholars, sociologists, and others are unfamiliar with the specific topics addressed here, as they are novel and broadly interdisciplinary. These obstacles testify to the difficulties of editing a volume such as this one, and to the fact that this is such a nascent field. The interest of the academic field in the ritual use of ayahuasca is not new; quite the opposite. The year 2022 marks the 50th anniversary of Marlene Dobkin de Rios’ (1972) pioneering work, Visionary Vine: Hallucinogenic Healing in the Peruvian Amazon, devoted to the study of the practices of vegetalistas in Iquitos, Peru. Besides the seminal work of Dobkin de Rios, one of the first anthropological studies on ayahuasca, we cannot fail to mention works such as Luna’s (1986), also on Peruvian vegetalistas, or the first publications on ayahuasca religions in Brazil, such as the important books by Fróes (1983) and MacRae (1992) on Santo Daime, which attest to the beginning of a growing interest in the historical, sociological, and anthropological aspects of ayahuasca consumption. In addition to these innovative works, and many other articles, dissertations, and theses that marked the emergence of a socio-anthropological academic debate on ayahuasca in Brazil (Monteiro, 1983; La Rocque Couto, 1989; Groisman, 1991; Dias, 1992; Guimarães, 1992; Pelaez, 1994; Andrade, 1995; Goulart, 1996; Cemin, 1998; Sena Araújo, 1999; Brissac,

DOI: 10.4324/9780429001161-1

1

2  Beatriz Caiuby Labate et al. 1999), and internationally (Harner, 1973; Kesinger, 1973; Henman, 1986; Langdon, 1986; McKenna et al., 1986; Naranjo, 1986), the consolidation of ayahuasca studies as an important academic field took place only in the 2000s. In this regard, the I Congresso sobre o Uso Ritual da Ayahuasca (I Conference on the Ritual Use of Ayahuasca [I CURA]), in 1997, among the first interdisciplinary academic conferences dedicated to the ritual use of ayahuasca at a distinguished university, and the publication of O uso ritual da ayahuasca (The Ritual Use of Ayahuasca) (Labate & Sena Araújo, 2002), a large volume dedicated entirely to ayahuasca, were, without a doubt, landmarks of the rising interest in the public debate on ayahuasca in Brazil. Since then, rivers of ink have been written about ayahuasca and its uses, and there has been an undeniable boom of academic works on the subject; particularly in the last two decades, with the publication of a growing number of collections, books, theses, dissertations, and academic articles on the subject. In the wake of this broad and important academic movement that has now reached a half century of existence, it is necessary to ask ourselves: What is the need for, and, beyond that, the relevance of, another collection that focuses on ayahuasca? The answer to this question is two-fold. First, this volume is important because the practices and groups that consume ayahuasca are not inert. On the contrary, the use of ayahuasca has seen increased expansion and re-signification in recent decades, since it left the Amazon rainforest and reached a global scale, arriving in several countries in Latin America, Europe, and North America, as well as in countries like South Africa, Australia, and Japan (Sáez, 2018; for the globalization of ayahuasca, see: Labate & Jungaberle, 2011; Labate & Cavnar, 2014; Labate et al., 2017; Labate & Cavnar, 2018). This unprecedented expansion has imposed the need for studies that address issues that emerge when the use of ayahuasca departs from its geographical and cultural contexts of origin and inserts itself into new social, historical, and cultural settings. This new scenario is inevitably accompanied by concerns regarding new identity processes, new forms of legitimacy, and the proliferation of social stigmas, as well as new configurations of the use of ayahuasca (Labate  2004). These issues often revolve around controversial themes, such as the reinterpretation of traditional beliefs and practices in ways that not only lead to reinventions through a process of hybridization, but that also create new traditions, rituals, beliefs, and values previously absent from the Amazonian imaginary (Labate et al., 2017). Second, it is necessary to emphasize that the present collection is dedicated to a topic greatly unexplored in the academic debate on ayahuasca, the legal one. Thus, a substantial analysis of ayahuasca regulation processes is not only relevant, but necessary. This is due to the fact that the global expansion of ayahuasca and its reinventions have been accompanied by a series of public controversies, as ayahuasca religious or therapeutic groups have often encountered legal restrictions, confiscation of ayahuasca shipments, and threats of imprisonment, among other problems that call

Introduction  3 into question the practices and even the existence of groups that consume ayahuasca in a ritual context. As Labate and Feeney (2014) point out, the reaction to the growth of this phenomenon has often been one of unease among countries where religious use of ayahuasca is present. Responses to these groups, often based on accusations of “illicit drug use and drug trafficking,” raise complex questions about law, culture, and religion in a world setting increasingly marked by transnational cultural flows. These accusations are frequently based on the fact that one of the plants used in the making of ayahuasca, Psychotria viridis, contains DMT (N,N-dimethyltryptamine), a Schedule I controlled substance according to the United Nations Convention on Psychotropic Substances (CPS) of 1971. As McAllister states in this volume, although ayahuasca, per se, is not regulated by international conventions, one of its components is considered a controlled substance under international treaties. Notwithstanding the fact that the laws governing the use of psychoactive substances vary from one country to another, it is important to stress that the majority of national States adhere to the CPS, which includes DMT on their list of controlled substances. This creates a conundrum concerning the regulation of ayahuasca, since, in the majority of cases, the plants are not subject to any type of regulation, but one of them contains a substance controlled worldwide, inserting ayahuasca and its drinkers in a legal gray area. In light of this, this edited volume is an important milestone in the ayahuasca debate, since it is the first book focused exclusively on ayahuasca regulation processes on a global scale. This initiative is especially crucial in the current political context, where the rise of authoritarian regimes and extreme right-wing political movements in various parts of the world have been undermining and jeopardizing the rights of numerous religious, ethnic, and gender minority groups. Therefore, the works gathered here seek to face this new setting of political uneasiness, documenting an unprecedented collective effort by researchers from various parts of the world and from diverse fields of knowledge to understand the legal implications of the global expansion of ayahuasca, as well as the dilemmas, controversies, and political, social, and cultural consequences for ayahuasca groups. This volume presents a rich array of reflections on the complex implications of this expansion, ranging from health, spiritual, and human rights impacts on individuals, to legal and policy impacts on governments. The chapters reveal that the legality of the ritual use of ayahuasca has been interpreted differently throughout the world. Our focus, therefore, is not solely on the countries in which the ritual use of ayahuasca is a long-standing practice and an integral part of traditional cultural systems, but also on countries where ayahuasca has only recently appeared and has become the object of governmental scrutiny and public policies. Through a comparative analysis of the different contexts in which ayahuasca is consumed, this work investigates the conceptual, philosophical, and legal distinctions among the fields of shamanism, religion, and medicine.

4  Beatriz Caiuby Labate et al. The diversity of cultural and regional influences is reflected in, for e­xample, different traditions of governmental regulation of ayahuasca consumption: While Brazil permits religious, but not therapeutic, use of ayahuasca, Peru has enshrined indigenous medical traditions surrounding ayahuasca as part of its national heritage. In Colombia, there is no direct legislation regarding ayahuasca and the legitimacy of its use is related to the constitutional rights of the Indigenous Peoples to live according to their cultural background. On the other hand, there are countries that do not recognize the religious nature of the Brazilian ayahuasca religions, such as Portugal, while others, like France and Belgium, consider ayahuasca traditions potentially dangerous cults. Although Spain has liberal drug legislation, and ayahuasca is considered “personal drug use,” arrests have recently increased substantially. Also, in an interesting turn of events, the Netherlands suddenly revoked the previously established religious freedom of ayahuasca churches after 17 years of lawful presence and practice, presenting a crucial setback for the regulation of ayahuasca in the country and, in a broader perspective, in Europe. In the United States and Canada, the religious use of ayahuasca by Brazilian ayahuasca religions is allowed in some cases, but the traditional and shamanic uses of the brew are not permitted. In Uruguay, despite the governmental recognition of a Santo Daime church, ayahuasca is not regulated, and its import is frequently a source of problems, as an increasing number of shipments are seized at the Brazilian boarder by federal authorities. One can see, thus, that this book provides the most up-to-date collection of informed academic writing currently available on this topic, touching upon classic and contemporary anthropological concepts such as ethnicity, identity, and tradition, while also presenting new theoretical and empirical problems, as the worldwide expansion of traditional practices raise a number of legal issues. This volume also sheds light on other controversies related to the globalization of ayahuasca, such as the commodification of the beverage; unauthorized uses, such as the recreational use of the drink and ayahuasca tourism; and even biopiracy and the acquisition by third parties of intellectual property rights on traditional knowledge. This volume also has the merit of demonstrating that, amid different regulatory contexts, certain issues and controversies are recurrent in the debate over the regulation of ayahuasca. The chapters support Saba Mahmood’s trailblazing hypothesis that, aside from the ways in which the regulation of religious practice takes shape across different geographical landscapes, there is a globally shared form of secular national-political structuration adopted by all modern states that has two fundamental paradoxical features: first, the state’s claim to religious neutrality and the defense of the principle of religious freedom, despite its involvement in the regulation and management of religious life to an unprecedented degree, and, second, its embroilment in issues regarding religious practices and doctrines. They are thus committed to leveling religious differences in the political sphere,

Introduction  5 notwithstanding the fact that modern secular governance transforms and, in some cases, intensifies pre-existing inequalities (Mahmood, 2015). Following this insight, several chapters attest that, although the principle of religious freedom is widely accepted as a fundamental human right in the legal framework of the countries analyzed here, its claim depends on the recognition of a religion’s legitimacy and whether particular practices can be considered a threat to public health, security, morality, or public order. Hence, while religious freedom, in the sense of the right to hold one’s belief, is granted, the freedom to manifest one’s religion or beliefs is frequently subject to a number of restrictions prescribed by law. That being said, one can note that, despite the different outcomes, the legal frameworks of these countries share a hegemonic secular device forged to regulate the cultural and social practices of their respective populations. These devices are frequently used by public authorities and State agencies in order to challenge the possibility of regulating the use of ayahuasca, demonstrating that the legal principles promoted by national states and international agencies— such as religious freedom, human rights, and the rights of minorities and Indigenous Peoples—do not have an absolute status. On the contrary, they are repeatedly put in check by legal decisions. Before addressing specific forms of regulation, however, we must assess the impacts of the lack of regulation when it comes to the ritual use of ayahuasca. Garrod and Blommaerte, for example, argue that ayahuasca tourism in Canada is partly due to ayahuasca’s legal status in the country, or lack thereof. According to the authors, many Canadians who want to attend ayahuasca ceremonies choose to visit retreat centers in South America. Some of these centers are owned by Canadians who advertise them online. The occasional negative incidents and health-associated problems that derive from these activities can be considered, in part, as an indirect consequence of the criminalization of ayahuasca in Canada, forcing Canadians to seek healing experiences abroad that are unavailable in their own country. Nevertheless, this pattern of ayahuasca consumption is often seen as belonging to a colonial practice in which individuals who act out of their own self-interest consume ayahuasca as a new form of “spiritual tourism.” This controversial new trend has often been implemented with little consideration of its impact on local communities, their culture, and their environment. Moreover, the illegality of ayahuasca creates a number of unexpected problems, making it difficult to obtain information on the source of ayahuasca, the importation process, the impacts on the community where the ayahuasca comes from, etc. Besides focusing on controversies associated with a lack of regulation, another merit of this book concerns the inquiry on the different paths utilized to acquire legitimacy in a legal sphere. As the authors indicate, this can come to fruition through legal disputes, drug policies, or even through policies affirming cultural heritage. As Labate and Assis show, several South American countries, including Peru, Colombia, Bolivia, and Brazil, have invested in affirmative policies of cultural recognition but with different

6  Beatriz Caiuby Labate et al. approaches. In an innovative decision without precedent anywhere else in the world, Peru developed an affirmative policy that recognizes ayahuasca as national cultural heritage, while Colombia opted to develop a public policy of indirect recognition in relation to yagé. Brazil, in turn, presents a somewhat unique scenario. The particularity of the Brazilian case is due to the fact that Brazil is the birthplace of the Brazilian ayahuasca religions, and due to the way in which the National Council on Drug Policy (CONAD) regulated ayahuasca, recognizing solely the legitimacy of the religious use of ayahuasca, in an innovative collective effort that involved a collaboration between anthropologists, psychologists, psychiatrists, and jurists, along with representatives of the ayahuasca religions. This book makes another important contribution to the debate on affirmative policies regarding the use of ayahuasca, demonstrating that, beyond the differences at the state level, these are not unanimous nor consensual processes. In fact, the patrimonialization of ayahuasca is frequently accompanied by tensions and conflicts. The disputes that erupt throughout these processes not only illuminate important cultural differences between the ayahuasca groups but, at the same time, spark the establishment of new alliances, the questioning of well-established categories, and the repositioning of actors in the public debate. In Brazil, the shift of ayahuasca regulation from the legal to the cultural sphere, therefore, transforms the notion of cultural heritage into a political “language” in which the disputes within the ayahuasca field take place. This increasingly diverse scenario— especially with the progressive insertion of indigenous groups with their own political agenda on cultural heritage policies—brings to light questions on authenticity, tradition, and cultural legitimacy. This volume also demonstrates that, besides granting social legitimacy to traditional populations, the recognition of ayahuasca use as cultural heritage does not entail numerous rights concerning these populations, such as the protection of their territories or the right to circulate freely with ayahuasca. In addition, these regulations frequently are not able to counteract the problems associated with the insertion of traditional cultural practices into the global economy, such as the commodification of ayahuasca. Despite political tensions and controversies, it is increasingly clear that cultural policies are presenting themselves as a new path to gain public legitimacy, moving beyond the realm of drug policies and shifting the public debate toward affirmative actions. Nevertheless, it is worth noting that, besides granting legitimacy and legal protection, all forms of regulation, whether through drug policies, judicial decisions, or cultural policies, imply forms of standardization that regulate specific institutional frameworks, and that are accompanied by restrictions that end up circumscribing the use of ayahuasca to particular models. This becomes clear in the case of environmental legislation analyzed by Labate, Antunes, and Antunes. The fact that ayahuasca comes from the Amazon region and the plants used to make it only grow in tropical climates, limits its production to certain

Introduction  7 ecosystems. Consequently, the growing pressure on the plant species that comprise ayahuasca, particularly as a result of the expansion of ayahuasca use throughout Brazil and internationally, and also from the increasing deforestation of the Amazon over the last decades, has caused Brazilian environmental agencies to focus on developing environmental legislation for the harvest and transport of the plant species. Beyond the legitimate initiative to grant rights, not only to traditional populations and religious groups that consume ayahuasca, but also to the plant species themselves, the development of environmental legislation aimed at the religious use of ayahuasca has created new forms of control and restriction on the practices of ayahuasca groups in Brazil. Moreover, the legislation in question has created a special burden for the Indigenous Peoples who have become a part of the growing urban circuits of ayahuasca consumption in Brazil, as they find it difficult to fit into the regulatory parameters focused on the religious use of ayahuasca (Labate et al., 2022) Conversely, as the authors demonstrate, the growing visibility of indigenous actors in the public debate on ayahuasca has given rise to new demands, such as the right to transport ayahuasca and the freedom to produce and administer the beverage beyond their territories. This recent indigenous protagonism has its most forceful result in the contestation of the protocols and bureaucracies stipulated by the regulation of the religious use of ayahuasca in Brazil, and the questioning of some of the endeavors of the Brazilian State concerning public policies that contemplate the demands of Indigenous Peoples. This kind of political articulation among Indigenous Peoples is also present in Colombia, as the chapter of Caicedo Fernández demonstrates. The expansion of yagé circuits in the urban centers of Colombia and the social, economic, and political effects of this new economy regarding traditional communities has led to the development, in the 2000s, of the Union of Indigenous Yagé Medics of the Colombian Amazon (UMIYAC) Medical Code of Ethics, which established a number of guidelines to prevent the commodification of traditional forms of yagé use. In a unique way, Colombia has witnessed the escalating role of indigenous organizations, not only as key actors in the legitimation of new uses of the beverage, but also as a new political force in defending the rights of indigenous traditions. The chapters gathered here also indicate the importance of employing distinctive strategies suitable to the different arenas in which the regulation of ayahuasca takes place. Whether it is in courts, drug agencies, or in the cultural heritage domain, the legal and rhetorical strategies vary according to the actors involved, the audience, and the expected results. For instance, Introvigne’s chapter highlights the problematic association of ayahuasca with terms such as “cult” and “sect.” Commonly associated with “brainwashing,” these categories have usually a derogative connotation and are frequently used by governments and public agencies as accusatory categories and as tools to discriminate against ayahuasca groups.

8  Beatriz Caiuby Labate et al. The choice of terms is not limited to the classification of ayahuasca groups, but involves the beverage as well, since the categories employed by ayahuasca drinkers, scholars, and State agencies also vary to a great extent. In that regard, the range of terms goes from categories with religious connotations, such as “sacrament” and “divine being,” to terms derived from folk practices, such as “traditional Indigenous medicine”; anthropological concepts, like “shamanism,” and “entheogens”; medical notions, including “alternative medicine therapy”; or even categories directly associated with the debate on psychoactive substances, like “drug,” “hallucinogen,” and “psychedelic.” The book also demonstrates that the inclusion of plants such as the ones used to produce ayahuasca in the scheduling systems depends on a classificatory effort to include these species in the “narcotic” category, equating them discursively to psychoactive substances like cocaine or heroin. As Rebollo (2019) reminds us, even though these plants are not usually categorized as “illegal” per se, their production, cultivation, and trade are subject to the same legal and linguistic productions devoted to the classification of other controlled substances. This categorization process walks hand-in-hand with the development of control mechanisms and legal devices. In fact, the repressive measures aimed at ayahuasca groups depend on the previous classification of ayahuasca as a drug that contains a controlled substance. As Fassin (2012) points out, a semantic configuration does not appear out of nowhere. Its origins are always related to specific social worlds, such as academic, legal, or cultural that, at a given moment, become recognized as authorized sources of social facts. Hence, the development of public policies and laws necessarily involves the stabilization of an institutional analytical framework and the establishment of procedures and protocols recognized by conventions. Such a process implies, in turn, the articulation of a particular set of actors, giving rise to the construction of a new lexicon and, consequently, a new horizon of public actions. When it comes to psychoactive substances, therefore, the use of certain terms and categories is not random. They reveal both the different conceptualizations and the disputes and intricate power relations revolving around their regulation. As Bouso’s interview shows, legal, popular, and toxicological languages are not always interchangeable, and a degree of translation is always necessary when it comes to trials. According to Bouso, the performance of an expert during a trial on ayahuasca involves not only scientific knowledge, but also legal strategies. The choice of categories, the type of analogy employed, the choice to avoid the excessive use of technical terms, the ways of producing certain comparisons and metaphors while avoiding others, are crucial to the outcome of a trial. Through these strategies that go beyond strictly scientific knowledge, expert witnesses seek to disassociate, for instance, the altered states of consciousness provoked by ayahuasca from pathological states, as well as to avoid the association of the beverage with the stigma related to the abusive use of psychoactive substances.

Introduction  9 Notwithstanding the importance of the legal defense of ayahuasca use worldwide by different players—including academics, lawyers, and non-profits—the legitimacy of this approach and proposals are far from being a consensus among ayahuasca groups. These disputes not only reveal the existing tensions surrounding the debate on ayahuasca use, but they highlight, as well, the important issue of who has legitimacy and authority to speak on behalf of ayahuasca and the populations that consume it. A good example is the organization of the II World Ayahuasca Conference by the non-profit International Center for Ethnobotanical Education, Research & Service (ICEERS). This conference led to a number of controversies, especially regarding the predominant focus on academic knowledge, to the detriment of the experience of traditional ayahuasca groups and Indigenous populations. As the chapter by Labate and Assis stresses, during the event, held in Rio Branco, Acre, Brazil, in 2016, ICEERS arranged a parallel private meeting to discuss proposals for the recognition of ayahuasca as a cultural heritage of humanity. However, this universalist stance was questioned by a number of participants, exposing some of the controversies that had already become evident in the Brazilian public debate, such as the exclusion of Indigenous Peoples from the request for recognition of ayahuasca as intangible cultural heritage. In conclusion, we would like to briefly sum up some of the major dilemmas arising from the global expansion of ayahuasca: Is regulation a desirable path for ayahuasca? Is it necessarily something beneficial for religious groups and traditional populations? Do national States have the legitimacy and also the appropriate means to regulate practices that have ancestral origins? What should the limits be to government actions when it comes to fundamental rights, such as religious freedom and the rights of Indigenous Peoples? What are the burdens for ayahuasca religions and Indigenous Peoples that arise from regulatory processes? One approach that warrants consideration is the development of models based on the principle of self-regulation, an option considered by Walsh, one of the contributors to this collection. The author recognizes, however, that these proposals might seem overly optimistic since, as the chapters in this volume demonstrate, there is no clear stance nor agreement on the best ways to recognize and legitimize the use of ayahuasca, nor to guarantee the rights of groups and populations who consume it. In any case, the current advancement of drug reform in the United States, especially the decriminalization of psychedelics in several states, shows unexpected and promising developments in relation to the current medical or religious freedom models. In our view, there are no easy answers to the dilemmas that emerge from the global regulation of ayahuasca, or the lack thereof. This volume does not intend to present a solution to such problems and disputes, but to bring to light power relations, conflicts, controversies, and problems that arise as the expansion of ayahuasca reaches a global level. In a broader perspective,

10  Beatriz Caiuby Labate et al. this collection also serves as a call, not only to the scientific community, but to ayahuasca groups themselves, and also State agencies, to accept the challenges and face the dilemmas presented here, reformulating the debate on the use of ayahuasca through new lenses and opening new possibilities for these cultural practices and traditions to continue to exist, to change, and to promote harm reduction toward the problems resulting from the globalization of ayahuasca.

A Global Issue: An Overview of the Regulation of Ayahuasca Worldwide As stated above, this collection presents an unprecedented academic initiative to shed light on the global regulation of ayahuasca, addressing multiple contexts. McAllister’s chapter discusses the legal protections and uncertainties around the status of ayahuasca in the United States, especially regarding the establishment of the Religious Freedom Restoration Act (RFRA). The chapter explorers the cases of the two churches that have been granted exceptions to use ayahuasca under US law: Santo Daime and the União do Vegetal (UDV), and also looks at the Supreme Court’s Hobby Lobby decision and its impact on the recognition of ayahuasca churches under federal law. McAllister also presents a detailed analysis of the Drug Enforcement Administration (DEA) administrative process for obtaining an exemption from the Controlled Substances Act (CSA) for the religious use of ayahuasca, and a review of current lawsuits against the DEA regarding the religious use of ayahuasca. Still focusing on the US context, Antunes’ chapter analyzes the legal dispute between the US government and a Santo Daime church—the Church of the Holy Light of the Queen (CHLQ), located in Ashland, Oregon—that culminated in the regulation process of ayahuasca in that state. The chapter describes the insertion of the Santo Daime into the United States, the beginning of tensions with the governmental institutions, and the development of the dispute between CHLQ and the federal government. Following McAllister’s contributions, the case study in question is valuable in reinforcing the analysis of the US government’s modus operandi in dealing with ayahuasca groups, as well as the orientation of its courts as they face the challenge of mediating disputes between such institutions and the government. Garrod and Blommaert’s chapter focuses on ayahuasca’s legal and ethical journey in Canada. The authors address the problems associated with ayahuasca’s legal status, since the possession, sale, and use of ayahuasca in Canada are criminalized, except for exemptions from the Office of Controlled Substances (OCS). The chapter discuss the specific regulations proposed by the Canadian government for a Santo Daime church, Céu do Montréal. It also addresses the implications of criminalization and the lack of regulation of ayahuasca in Canada, as well as the resultant rise in the number of Canadians who travel to South and Central America to

Introduction  11 experience the use of ayahuasca. The authors analyze the implications and possible social, cultural, and economic impacts of this new form of tourism, not only on Canada, but also on foreign communities that provide ayahuasca ceremonies and who export the beverage. Focusing on the various proactive approaches that may be taken in the quest to regulate plant medicines, Walsh’s chapter presents a legal analysis of the recent refusal by the secretary of state in the United Kingdom to grant an ayahuasca-using church, the União do Vegetal (UDV), license to import, possess, and supply ayahuasca. This case study is followed by a broader discussion of the ways in which plant medicines might be regulated were prohibition to end, from a consideration of strict legal regulation through to the recommended model of decriminalization, with this latter approach ideally supplemented by practitioner-generated best practices guidelines, voluntarily ascribed to, drawing lessons from indigenous cultural practices. Novaes and Moro’s chapter provides an overview of the contemporary landscape of ayahuasca use in France. The chapter situates the discourse and representations around the transcultural/urban uses of ayahuasca in relation to the complex political, social, and cultural contexts of the country. The authors present an analysis of the treatment of ayahuasca by the French state, focusing on the public anti-cult organ called “Miviludes,” whose main purpose is to fight against the dangers and expansions of movements perceived as “sects.” The chapter addresses the consequences of Miviludes’ surveillance circle regarding ayahuasca and social movements linked to neoshamanism, and the implications of the governmental decree that included all components of the Amazonian brew on the list of banned drugs in the country. Interestingly, during the writing stage of this chapter, Italy also included ayahuasca, and the plants used to make it, on its list of controlled substances. Dhall, Wiedemann, and Satija’s chapter examines the legal framework that regulates ayahuasca in Australia in its federal, state, and territory dimensions. The chapter contemplates the complex relationships that exist between various agencies and legislation across these jurisdictions, presenting the current state of ayahuasca regulation in that country. The authors also provide a brief review of unsanctioned ayahuasca use, outlining the implications of imported, alternative, and local ingredients, as well as exploring the dynamics of their poorly understood and widely ignored legal status. In a broader perspective, the chapter demonstrates the complexities of the regulatory framework in Australia that applies to ayahuasca and the difficulties associated with the employment of freedom of religion-based arguments in the legal sphere there. Caicedo Fernández explores the case of Colombia and seeks to account for the diversity of existing uses of yagé in the country; from the traditional uses of the Indigenous and mestizo Peoples, to the new and diverse urban uses and the existing forms of social representation that legitimize them. The chapter seeks to understand the normative and legal frameworks

12  Beatriz Caiuby Labate et al. that regulate these uses in relation to the multiculturalism adopted by the Colombian state in the 1990s, and the policies of patrimonialization and medicalization of yagé that have been proposed in the country. The author demonstrates how the institutionalization of yagé is tied with social representations of indigenous diversity and to a legislative framework that legitimizes and legalizes cultural differences. The author also explores the ways in which the legal framing focused on the therapeutic uses and the association with traditional indigenous medicine, which led to the array of alternative health therapies that comprise the spiritual practices of the urban audience. Caicedo Fernández also explores the controversies regarding the commercialization of yagé and the financial gains of certain sectors that promote themselves as yagecero healers through the use of the imaginaries of the Amazon Indigenous Peoples. The chapter by Apud, Scuro, and Torteola analyzes a series of ayahuascarelated controversies in Uruguay. They describe the arrival of ayahuasca groups in Uruguay in the historical period of the 1980s, which marked the end of the dictatorship regime in the country and the beginning of globalization, when different religious and spiritual movements appeared. The chapter explores controversial issues that have arisen in the country recently, such as the growing cases of Santo Daime confiscation at the Brazilian border. The authors also present a critical analysis of characterizations disseminated by local TV shows and newspapers against ayahuasca groups, characterized as “dangerous religious cults” that use “drugs” to recruit followers. Besides the important contributions regarding the media’s portrayal of ayahuasca in Uruguay, the chapter also explores the relations between the State and the ayahuasca groups vis-à-vis drug policies and the legislation concerning religious rights in the country. Entering the arena of the categorization and the classification of religious practices, Introvigne’s chapter presents an analysis on the uses and implications of the notions of “cult” and “sect” regarding the use of ayahuasca. The author stresses the high frequency at which movements whose rituals include the consumption of ayahuasca and other so-called “entheogenic” substances are accused of being “cults,” as seen in the previous chapter about Uruguay. Interestingly, Introvigne’s stance is that, not only are ayahuasca groups not cults, but that the category, per se, is problematic, since it is used as a label to discriminate against religious and spiritual movements that present unusual practices in regard to public opinion and State agencies. Introvigne’s chapter also serves as a manifesto for religious tolerance, advocating for the rejection of notions that stigmatize legitimate religious movements, and developing new categories to address the intersection between religious organizations and criminal activities. The chapter by Labate and Assis focuses on affirmative actions regarding the use of ayahuasca in Brazil. Specifically, the authors analyze the process of registering ayahuasca as cultural heritage in Brazil, identifying its key actors, alliances, and disputes. Labate and Assis propose the development of a “genealogy” concerning the historical processes and social relations

Introduction  13 influencing the movement to register ayahuasca as cultural heritage in that country. The author’s analysis demonstrates that the cultural registration of ayahuasca is not a teleological project following a linear path, but it unfolds as a correlation of forces and a historical construction around the discursive notions of legitimacy, authenticity, and identity. Interestingly, the authors demonstrate that the shift in public policies on ayahuasca, from the legal sphere of psychoactive substances to the cultural sphere, has made it possible for the rise of cultural heritage as a new political “idiom” in which the disputes within the ayahuasca field are developed. Still focusing on the Brazilian context, the chapter by Labate, Antunes, and Antunes explores the environmental legislation on the use of ayahuasca in Brazil and its recent implications for Indigenous Peoples. The piece analyzes the state legislation of Acre and Rondônia that sought to regulate the extraction and transportation of plant species, as well as the production and circulation of ayahuasca in the national territory. The authors highlight the pioneering and innovative character of the legislation, which involved the establishment of a number of procedures to preserve the plant species in their natural habitat, as well as providing guidelines for ayahuasca groups regarding the production of the brew. However, the authors note that, beyond the legitimate initiative to preserve the plant species that make up ayahuasca, and the worry concerning the progressive extraction and commercialization by different groups in the Northern Amazonian states, this new environmental legislation ended up creating new forms of control and restriction on the practices of ayahuasca groups in Brazil, with special burdens on small urban churches and indigenous groups. Meeus’ chapter explores the Belgium and the Netherlands cases, highlighting that the religious use of ayahuasca within the context of Santo Daime has been criminalized for public health reasons, based on a particular interpretation the European Convention of Human Rights. Initially, the author shows that the lack of legal recognition in Belgium has led some churches to seek exile in the Netherlands. However, the recent events in the Netherlands, where the previously established religious freedom of ayahuasca churches has been revoked after 17 years of lawful presence and practice, have compromised the legal status of ayahuasca churches and created possible legal problems for them. The author associates the position of European countries regarding ayahuasca to the long history in Western civilization of promoting values or ideas that lead to the persecution of alternative practices of minority groups. According to Meeus, both the Dutch and Belgian judiciary have manifestly failed to consider the less restrictive measures available to mitigate perceived concerns related to the safeguarding of public health when it comes to the use of ayahuasca. As a result of this public stance, the stigma related to its categorization, as seen elsewhere, as a “sect” or its practitioners as “drug users,” has a detrimental and unjustifiable impact on existence of Santo Daime groups, as the persisting context of prohibition and criminalization pushes religious minority groups into clandestinity.

14  Beatriz Caiuby Labate et al. There is also an interview with José Carlos Bouso, a clinical psychologist based in Spain, and Scientific Director of ICEERS. Bouso shares his first-hand knowledge and experiences as an expert witness for the defense in several trials of people arrested for possessing and receiving ayahuasca, especially in Spain. The interview provides an important account of the type of role experts play in courts and the circumstances that usually arise in cases involving ayahuasca groups and drinkers, highlighting the importance of the adoption of certain discursive strategies and the employment of particular categories. In this sense, Bouso’s testimony provides a novel immersion in the type of interaction, disputes, and outcomes revolving around the criminalization of ayahuasca, granting the public at large access to uncharted territories. Finally, there is a short afterword that closes the book. Since the beginning of the endeavor to publish this volume in 2018, a lot has changed; sadly, for the worse. In light of this, the afterword addresses the backlash on ayahuasca in Europe; more specifically, in Spain. This piece—written in early 2023 by Labate, Cavnar, Antunes, and Assis—contests the growing criminalization of ayahuasca and the alarming stigmatization and persecution of ayahuasca groups. This chapter is a testament to the current struggles and growing challenges that the world ayahuasca diaspora faces, and a call for a change in the landscape of the global regulation of ayahuasca. One can thus note that the collection of works gathered here, from different disciplines and geographic areas, provides an inestimable contribution to the academic debate regarding the global regulation of ayahuasca. In this regard, this edited volume not only addresses important and controversial issues around religious freedom, drug policies, cultural heritage, and social stigmatization, but it also provides the most complete account of the issues that arise when ayahuasca becomes the concern of public authorities and media outlets. Through a comparative analysis of the different contexts in which this psychoactive substance is consumed, this work also investigates the conceptual, philosophical, and legal distinctions among the fields of shamanism, religion, and medicine. In the midst of many approaches and disputes, one thing seems sure: The global expansion of ayahuasca is here to stay, and the legal controversies will certainly be an increasing concern for ayahuasca groups. We hope, therefore, that our initiative can not only provide a better understanding of the challenges that ayahuasca groups and drinkers face in a global context, but may also serve as a plea for an open public debate on the use of ayahuasca between ayahuasca groups and state agencies, as well as between ayahuasca groups themselves. We conclude by expressing our solidarity with the many people victimized by legal abuse due to their religious practices and hope this book will help promote equitable legal developments worldwide.

References Andrade, A. P. (1995). O fenômeno do chá e a religiosidade cabocla [The phenomenon of tea and cabocla religiosity] (Master’s thesis). Instituto Metodista de Ensino Superior.

Introduction  15 Araújo, W. (1999). Navegando sobre as ondas do Daime. História, cosmologia e ritual na Barquinha [Sailing on the waves of Daime. History, cosmology and ritual in Barquinha]. Unicamp. Brissac, S. (1999). A Estrela do Norte iluminando até o Sul. Uma etnografia da União doVegetal em um contexto urbano [The North Star lighting up the South: An ethnography of União do Vegetal in an urban context (Master’s thesis). UFRJ/ Museu Nacional. Cemin, A. B. (1998). Ordem, xamanismo e dádiva. O poder do Santo Daime [Order, shamanism and gift: The power of Santo Daime] (Doctoral dissertation). USP. Dias, Jr., W. (1992). O império de Juramidam nas Batalhas do Astral: uma cartografia do imaginário no culto do Santo Daime [The empire of Juramidam in the Battles of the Astral: A cartography of the imaginary in the Santo Daime cult] (Master’s thesis). PUC-SP. Dobkin de Rios, M. (1972). Visionary vine: Hallucinogenic healing in the Peruvian Amazon. Chandler. Fassin, D. (2012). On humanitarian reason: A moral history of the present. University of California Press. Fróes, V. (1983). História do Povo Juramidam: a cultura do Santo Daime [History of the People of Juramidam: The Santo Daime culture]. Suframa. Goulart, S. L. (1996). As raízes culturais do Santo Daime [The cultural roots of Santo Daime] (Master’s thesis). USP. Groisman, A. (1991). Eu venho da floresta: ecletismo e práxis xamânica daimista no Céu do Mapiá [I come from the forest: Eclecticism and Daimist shamanic praxis in Céu do Mapiá (Master’s thesis). UFSC. Guimarães, M. B. L. (1992). A “Lua Branca” de Seu Tupinambá e de Mestre Irineu: estudo de caso de um terreiro de umbanda [The “white moon” of Seu Tupinambá and Mestre Irineu: A case study of an Umbanda terreiro] (Master’s thesis). UFRJ. Harner, M. J. (1973). The sound of rushing water. In Harner, M. J. (Ed.), Hallucinogens and shamanism (pp. 15–27). Oxford University Press. Henman, A. (1986). Uso del Ayahuasca en un contexto autoritario. El caso de la União do Vegetal en Brasil [Use of ayahuasca in an authoritarian context: The case of the União do Vegetal in Brazil]. América Indígena, 46(1), 219–234. Kesinger, K. M. (1973). Banisteriopsis usage among the Peruvian Cashinahua. In M. J. Harner (Ed.), Hallucinogens and shamanism (pp. 9–14). Oxford University Press. Labate, B. C. (2004). A reinvenção do uso da ayahuasca nos centros urbanos [A  reinvention of the use of ayahuasca in urban centers]. Mercado de Letras, FAPESP. Labate BC, Antunes H, de Assis GL, Gomes B, Smith M, Cavnar C (2022). On epistemic injustices, biomedical research with Indigenous people, and the legal regulation of ayahuasca in Brazil: The production of new injustices? Transcultural Psychiatry, 59(5), 705–-710. doi:10.1177/13634615221120869. Labate, B. C., & Cavnar, C. (Eds.). (2014). Ayahuasca shamanism in the Amazon and beyond. Oxford University Press. Labate, B. C., & Cavnar, C. (Eds.). (2018). The expanding world ayahuasca diaspora: Appropriation, integration and legislation. Routledge. Labate, B. C., Cavnar, C., & Gearin, A. K. (Eds.). (2017). The world ayahuasca diaspora: Reinventions and controversies. Routledge.

16  Beatriz Caiuby Labate et al. Labate, B. C., & Feeney, K. (2014). The expansion of Brazilian ayahuasca religions: Law, culture and locality. In B. C. Labate & C. Cavnar (Eds.), Prohibition, religious freedom, and human rights: Regulating traditional drug use (pp. 111–130). Springer. Labate, B. C., & Jungaberle, H. (Eds.). (2011). The internationalization of ayahuasca. Lit Verlag. Labate, B. C., & Sena Araújo, W. (Eds.). (2002). O uso ritual da ayahuasca [The ritual use of ayahuasca]. Mercado de Letras. Langdon, E. J. (1986). Las clasificaciones del yajé dentro del grupo Siona: etnobotânica, etnoquímica e historia [Classifications of yajé within the Siona group: Ethnobotany, ethnochemistry and history]. América Indígena, 46(1), 101–116. La Rocque Couto, F. (1989). Santos e Xamãs – Estudos do uso ritualizado da ayahuasca por caboclos da Amazônia, e, em particular, no que concerne sua utilização sócio-terapêutica na doutrina do Santo Daime [Saints and shamans: Studies on the ritualized use of ayahuasca by caboclos of the Amazon, and, in particular, regarding its socio-therapeutic use in the Santo Daime doctrine (Master’s thesis). UNB. Luna, L.E. (1986). Vegetalismo: shamanism among the mestizo population of the Peruvian Amazon. Almqvist and Wiksell International. MacRae, E. (1992). Guiado pela Lua: Xamanismo e uso ritual da Ayahuasca no culto do Santo Daime [Guided by the Moon: Shamanism and the ritual use of ayahuasca in the Santo Daime cult]. Editora Brasiliense. Mahmood, S. (2015). Religious difference in a secular age: A minority report. Princeton University Press. McKenna, D. J., Luna, L. E., & Towers, G. H. N. (1986). Ingredientes biodinámicos en las plantas que se mezclan al ayahuasca: Uma farmacopea tradicional no investigada [Biodynamic ingredients in plants mixed with ayahuasca. an unresearched traditional pharmacopoeia]. América Indígena, 46(1), 73–99. Monteiro, C. (1983). O Palácio Juramidam – Santo Daime: um ritual de transcendência edespoluição [The palace of Juramidam – Santo Daime: A ritual of transcendence and depollution. (Master’s thesis). Universidade Federal de Pernambuco. Naranjo, P. (1986). El ayahuasca en la arqueologia equatoriana [Ayahuasca in Ecuadorian archeology]. América Indígena, 46(1), 117–127. Pelaez, M. C. (1994). No mundo se cura tudo. Interpretações sobre a “cura espiritual” no Santo Daime [In the world, everything can be healed: Interpretations on “spiritual healing” in Santo Daime (Master’s thesis). UFSC. Rebollo, N. (2019). Plantas psicoactivas, fronteras e (i)legalidade [Psychoactive plants, borders and legality]. Revista Cultura y Droga, 24(28), 62–80. doi: 10.17151/culdr.2019.24.28.4 Sáez, Ó. C. (2018). Foreword. In B. C. Labate & C. Cavnar (Eds.), The expanding world ayahuasca diaspora: Appropriation, integration and legislation (pp. ­x ii–xvii.). Routledge. Sena Araújo, W. (1999). Navegando sobre as ondas do Daime. História, cosmologia e ritual na Barquinha [Sailing on the waves of the Daime: History, cosmology and ritual in Barquinha]. Unicamp.

1 Ayahuasca Vision 2021 Legal Status of Ayahuasca in the United States Sean T. McAllister

Ayahuasca exists as a legal dichotomy in the United States, as demonstrated by the fact that the following two sentences are both true: (a) ayahuasca contains a Schedule I compound, dimethyltryptamine (DMT), that makes it criminally illegal in the United States to import, possess, manufacture, distribute, or assist anyone to do any of the above; and (b) at the same time, ayahuasca is legal in the United States if its importation, possession, manufacture, and distribution constitutes religious exercise under the Religious Freedom Restoration Act (RFRA) and under analogous state law protections. The legal dichotomy with ayahuasca continues with the following statements, both of which are true: (a) the US Drug Enforcement Administration (DEA), a federal law enforcement agency within the US Department of Justice, has crafted an administrative process for religious adherents using ayahuasca to apply for a religious exemption from criminal sanctions and prohibitions under the Controlled Substances Act (CSA); and (b) the DEA has never voluntarily granted such an administrative exemption absent a court order to do so. As explained below, the legal status of ayahuasca in the United States remains contradictory, confusing, and unclear. This chapter discusses the legal protections and uncertainties around the legal status of ayahuasca in the United States. In particular, RFRA is examined in detail to understand what protections it provides regarding ayahuasca. The Courts have developed a complex set of factors for assessing the sincerity of religious practices under RFRA, which the DEA applies as part of its administrative assessment of applications for religious exemption to the CSA. Next, the chapter reviews the two churches that have been granted exceptions to use ayahuasca under US law: Santo Daime and the União do Vegetal (UDV). The Supreme Court’s Hobby Lobby decision is also reviewed to assess its impact on the recognition of ayahuasca churches under federal law. The chapter also takes a detailed look at the DEA administrative process for obtaining an exemption from the CSA for the religious use of ayahuasca, including assessing the Meyers’ factors created by the Courts in the criminal context and applied by the DEA.

DOI: 10.4324/9780429001161-2

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18  Sean T. McAllister Current lawsuits against the DEA regarding the religious use of ayahuasca are reviewed: the Soul Quest and Arizona Yage Assembly cases. The DEA’s plan for formal agency rulemaking around the granting of religious exemptions for ayahuasca use is discussed in this context as well. The chapter also covers a recent trend of ayahuasca shipments being seized at the border and concerns around importation of the substance. State-level protections for ayahuasca use, or the lack thereof, are also reviewed. Finally, the chapter reviews the impact of state- and city-level drug decriminalization measures on ayahuasca use. As this chapter outlines, the law in the United States around ayahuasca is complex, often confusing, and contradictory. The complexity suggests that adherents whose religious exercise involves ayahuasca need to proceed with extreme caution, fully understanding the risks and legal protections surrounding their activities. Proceeding without extreme caution with ayahuasca may trigger seizure, civil asset forfeiture, or even criminal prosecutions.

The First Amendment Does Not Protect Ayahuasca Use The most common misunderstanding in the United States about ayahuasca is that its use is protected under the First Amendment of the Constitution, under the free exercise of religion clause, which famously states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” (US Const. Amend I). Prior to passage of the RFRA in 1993, the US Supreme Court, in 1990, held that the protections for religious liberty in the First Amendment do not prohibit the government from burdening or criminalizing religious practices through laws of general applicability, such as laws prohibiting the use, manufacturing, or distribution of controlled substances (Employment Div., Dept. of Human Resources of Ore. v. Smith, 1990). Following the Supreme Court’s decision in the Smith case, it became clear that the use of controlled substances such as ayahuasca for religious purposes was not protected from government interference under the First Amendment.

Religious Freedom Restoration Act In response to the Smith case, in 1993, Congress passed and President Clinton signed into law RFRA. RFRA mandates that the “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” (42 USC § 2000bb-1[a]). The exercise of religion is defined broadly to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief” (42 USC § 2000bb-2[4]). RFRA mandates that the government may only substantially burden the free exercise of religion if it demonstrates: (1) a compelling governmental

Ayahuasca Vision 2021  19 interest, and (2) it is the least restrictive means of furthering that interest (42 USC § 2000bb-1[b]). A “substantial burden” is imposed when individuals are forced to choose between following the tenets of their religion and receiving a governmental benefit or being coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions (Navajo Nation v. U.S. Forest Serv, 2008). Seizing shipments of ayahuasca or criminalizing the use, possession, and distribution of ayahuasca for religious purposes have been successfully argued as government actions that constitute a substantial burden to the exercise of religion. If a person or group has ayahuasca seized, or is criminally prosecuted by the government, that person or group would have the initial burden of showing that they qualify for the protections under RFRA (i.e., that their exercise of religion was substantially burdened). Once that showing is made, the burden shifts to the government to substantiate a compelling governmental interest to justify such burden on religious use of ayahuasca and why the government’s actions were the least restrictive means of pursuing that interest. RFRA states, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government” (42 USC § 20000bb-1[c]). It is important to note that RFRA contemplates the defense being asserted “in a judicial proceeding” to obtain relief and RFRA does not explicitly grant the DEA any role in assessing these claims. The government’s main arguments about why it has a compelling government interest to burden the religious practice of using ayahuasca have been (a) the need to prevent diversion of ayahuasca for non-religious use; (b) the need to protect users from the harmful effects of ayahuasca, given its Schedule I status; and (c) compliance with international drug treaties. To date, the government has been unable to show there is a compelling interest to substantially burden the religious use of ayahuasca. As a result, RFRA is a strong tool and ally available to those who seek use ayahuasca for religious purposes.

UDV Exemption In 2006, after several years of litigation, an American branch of the Brazilian UDV church prevailed in its case under RFRA to obtain an exemption from the CSA for the sacramental use of ayahuasca (Gonzales v. O Centro Espirita Beneficente União do Vegetal, 2006). Importantly, the government did not challenge the fact that the UDV was a valid religion or that its use of ayahuasca constituted religious exercise. Instead, the government claimed it had three compelling interests that justified interfering with the UDV’s religious practice of using ayahuasca; namely, (1) preventing the diversion of ayahuasca for non-religious purposes, (2) protecting the users themselves from the health risks of ayahuasca, and (3) adhering to a 1971 UN Convention prohibiting the use of certain drugs, including DMT.

20  Sean T. McAllister The Supreme Court found no compelling evidence that ayahuasca was dangerous for users. Further, the government failed to present sufficient evidence of health risks or diversion risks in order to demonstrate a compelling governmental interest that would justify interference with the UDV’s use of ayahuasca. Finally, the Court found that the government had not shown that allowing the religious use of ayahuasca would somehow undermine the 1971 UN Convention. Following the decision, the UDV and the DEA negotiated a detailed stipulated settlement agreement laying out the church’s rights and obligations. Specifically, the settlement requires any UDV branch to: (1) notify the DEA two weeks in advance of all shipments of ayahuasca to the United States, including the amounts being shipped (Labate, 2012); (2) provide the DEA with a detailed security plan articulating how the church will ensure there is no diversion of the sacrament (Labate, 2012); (3) keep detailed records, including, but not limited to: quantities consumed, number of participants in each ceremony, and identifying who stores the ayahuasca and under what conditions; (4) seek DEA licensure should any UDV branch cultivate the plants needed to produce ayahuasca; and (5) allow the DEA to conduct inspections to ensure compliance with the agreement at any time other than ceremony times (Labate, 2012). The agreement between the DEA and the UDV would likely be difficult to comply with for smaller and less organized groups. As a result of the agreement with DEA, the UDV is the only ayahuasca church entitled to use ayahuasca all across the United States (Feeney et al., 2018).

Santo Daime Exemption The Santo Daime Church (Santo Daime) is the only other church that has been successful in obtaining the legal right to use ayahuasca for religious exercise after the UDV, and they did so by obtaining a permanent injunction against the DEA in the state of Oregon (Church of the Holy Light of the Queen v. Mukasey, 2012). The case started when Santo Daime’s spiritual leader was arrested following his acceptance of a shipment of the Church’s sacramental tea (Haber, 2011). Santo Daime brought suit against the Department of Justice and the DEA seeking a permanent injunction preventing the enforcement of the CSA against their ayahuasca use in bona fide religious ceremonies (Church of the Holy Light of the Queen v. Mukasey, 2010). In January 2012, the Court granted Santo Daime’s injunction. The Court found, similar to the UDV case, that the government failed to meet its burden to show that the potential health effects of ayahuasca, and the potential for diversion to non-religious users, were compelling interests that justified interfering with Santo Daime’s religious activities. Unlike the UDV, Santo Daime did not engage in negotiation with the DEA to set out a detailed program for tracking and record keeping of the ayahuasca. Instead, Santo

Ayahuasca Vision 2021  21 Daime simply asserts it has broad rights pursuant to the Court’s injunction, which read the government was “enjoined from prohibiting plaintiffs’ [Santo Daime’s] importation, storage, distribution, and use of Daime tea for plaintiffs’ religious ceremonies” (Church of the Holy Light of the Queen v. Mukasey, Injunction, 2012). As a result of this ruling, and subsequent notifications to DEA, Santo Daime has authorization to legally use ayahuasca as part of ceremonies in Oregon, California, and Washington State. Outside of these states, new Santo Daime congregations must apply separately to DEA for permits and are not automatically recognized as exempt from CSA prohibitions and criminal sanctions.

Hobby Lobby Case In addition to the UDV and Santo Daime cases, another important case is the US Supreme Court decision in Burwell v. Hobby Lobby (2018). In this case, Hobby Lobby, a privately held, for-profit American arts and crafts retail company, invoked RFRA, arguing that it was not required to comply with the government’s contraceptive mandate embedded in the Affordable Care Act for its employees due to the sincere religious belief of the company’s founders that life begins at conception. Hobby Lobby argued that requiring it to provide birth control medication to employees violated its sincere religious beliefs (Burwell v. Hobby Lobby, 2014). Like the Supreme Court’s decision in the UDV case, the Court assumed the religious beliefs of the Hobby Lobby plaintiffs were sincere without question, inquiry, or argument. More importantly, the Court declared that federal courts have no business assessing whether “a religious belief asserted under RFRA is reasonable” (Burwell v. Hobby Lobby, 2014). The Court explained “it is not for the court to say that their religious beliefs are mistaken or insubstantial. Instead, our narrow function in this context is to determine whether the line drawn reflects an honest conviction” (Burwell v. Hobby Lobby, 2014). This shows that Courts are not supposed to decide if a religious belief is mistaken or unreasonable (Thomas v. Review Bd. of Indiana Employment Security Div., 1981). The Court’s “narrow function… is to determine” whether the asserted religious belief reflects “an honest conviction” (Thomas v. Review Bd. of Indiana Employment Security Div., 1981). This line of cases is important because it explains that the government should not attempt to second guess sincerely held religious beliefs. This should provide some optimism for ayahuasca churches that their ultimate beliefs, if sincerely held, should not be second guessed by Courts or government agencies. Despite the extreme caution the Courts have taken in assessing the sincerity of belief, the DEA has regularly delved into the reasonableness of religious beliefs when assessing claims under RFRA. The inconsistency between these court precedents and the DEA’s aggressive approach suggests that DEA’s position may be inappropriate. However, as

22  Sean T. McAllister shown below, the DEA’s scrutiny of religious sincerity is a real obstacle for those seeking protections under RFRA.

DEA Interim Guidance In 2009, in response to the UDV case, the DEA published an interim guidance document entitled “Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration Act” (the “Guidance”) (DEA Interim Guidance, 2009). The Guidance set out the requirements and process for obtaining a religious exemption from the CSA. As others have noted, the “Interim” Guidance has been in place 11 years without amendment and without ever going through a formal rulemaking process (Bartlett, 2019). Given DEA’s failure to comply with basic administrative law that requires public notice and comment on any agency rules, the Guidance is very likely unenforceable (Bartlett, 2019). Even if the Guidance is unenforceable, practitioners are not protected from prosecution or government interference if they do not have recognition from the DEA. There are numerous problems in practice and in principle with the Guidance that have dissuaded many ayahuasca churches from attempting to obtain such an exemption. First, the Guidance requires churches to stop their consumption of ayahuasca while their petition is being considered by the DEA. This is arguably an illegal prior restraint on religious activity and RFRA itself does not require the granting of an exemption to protect the use of ayahuasca for religious purposes. Next, the Guidance essentially empowers the DEA to determine the validity of the religion petitioning for an exemption by requiring detailed information about the basic tenets of the petitioning religion. Some argue this is an overreach of the DEA’s powers and point to the fact that there is nothing in the CSA that empowers the DEA to determine the sincerity of any religious activity (Bartlett, 2019). Finally, there is no deadline in the Guidance by which DEA must respond to such petitions. Since issuing the Guidance in 2009, the DEA has not issued religious exemptions to any petitioner under the CSA outside of the Court orders and settlements with Santo Daime and the UDV. In most cases, the DEA has simply failed to respond to petitions, given the lack of a deadline in the Guidance, and forced petitioners to sue the agency before seriously engaging on the merits of the petition. If a petitioner is successful in obtaining an exemption from the DEA under the Guidance, the DEA will likely demand the church enter into a detailed agreement with the DEA similar to the UDV agreement described above. Given the burden of the DEA exemption process, many groups have opted to forego seeking an administrative exemption. Instead, these groups have taken other measures to formalize their groups activities, including incorporating as religious non-profits at the state and federal level, documenting their religious beliefs, and operating in a discreet manner so as to not draw

Ayahuasca Vision 2021  23 attention to themselves. However, a few groups have sued the DEA in an attempt to force the DEA to grant them an exemption. As explained in the next section, the DEA applies an extraordinarily rigorous test to determine if plant medicine groups qualify as a religion under US law.

DEA’s Use of Meyers and Quaintance Factors Several court cases over the years have attempted to fashion a test for what qualifies as a bona fide religion or sincere religious belief, but the DEA relies primarily on two cases when assessing whether a religion is valid: U.S. v. Meyers and U.S. v. Quaintance (United States v. Meyers, 95 F.3d 1475 [10th Cir.] 1996; United States v. Quaintance, 471 F.Supp.2d 1153 [D.N.M], 2006. See also, Wisconsin v. Yoder, 406 U.S. 205, 1972; Alvarado v. City of San Jose, 94 F.3d 1223, 1229 [9th Cir.] 1996; and Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1032 [3d Cir.] 1981). As explained below, these cases present significant challenges for plant medicine communities seeking recognition from the DEA, in spite of arguments suggesting these cases should have limited applicability. However, the case law also provides a potential road map, albeit flawed in some respects, to help religious users of ayahuasca respond to the government’s investigation of their religious sincerity. In U.S. v. Meyers, David Meyers appealed his conviction of conspiracy with intent to distribute marijuana on the grounds that his activities were based on his religious beliefs around marijuana. Importantly, the Court held that the “threshold for establishing the religious nature of his beliefs is low,” suggesting that Courts and the DEA should not apply a rigorous test to any of these factors (U.S. v. Meyers, 1996, at 1482–1483). The Court explained that an aggrieved party must make an initial showing that a sincere religious belief was substantially burdened before the burden shifts to the government to show why the government had a compelling state interest to impair such a right. The Court then employed the following factors to assess whether the criminal defendants’ set of beliefs could properly be considered a religion, explaining them as follows: 1 Ultimate Ideas: Religious beliefs often address fundamental questions about life, purpose, and death. 2 Metaphysical Beliefs: Religious beliefs often address a reality which transcends the physical world and believe there is another dimension or temporality that is inhabited by spirits, souls, forces, deities, and other sorts of intangible entities. 3 Moral or Ethical System: Religious beliefs often set moral or ethical standards that delineate right and wrong, good and evil, or just and unjust. These moral or ethical beliefs may create duties imposed by a higher power, force, or spirit that may require a believer to abnegate self-interest.

24  Sean T. McAllister 4 Comprehensiveness of Beliefs: Religious ideas should be comprehensive and provide the believer with answers to many, if not most, of the problems and concerns that confront humans. In other words, religious beliefs generally are not confined to one question or a single teaching. 5 Accoutrements of Religion: The following indicators also may indicate a particular set of beliefs is religious. a Founder/Prophet/Lineage: Whether the religion has a founder, prophet, teacher, or lineage that followers believe is divine, enlightened, gifted, or blessed. b Important Writings: Whether the religion has fundamental or sacred writings, prayers, chants, rites, or mantras. c Gathering Places: Whether the religion designates a particular structure or location as sacred, holy, or significant. These sites often serve as gathering places for believers and can include physical structures or natural places, such as springs, rivers, forests, plains, or mountains. d Keepers of Knowledge: Whether the religion has clergy, ministers, shamans, teachers, or sages who are keepers of religious knowledge. e Ceremonies and Rituals: Whether the religion includes some forms of ceremony, ritual, sacrament, or protocol that are prescribed by the religion and are imbued with transcendent significance. f Structure or Organization: Whether the religion has an internal hierarchy to lead believers. g Holidays: Whether the religion celebrates important holidays. h Diet or Fasting: Whether the religion prescribes or prohibits the eating of certain foods and the drinking of certain liquids on particular days or during particular times. i Appearance and Clothing: Whether the religion prescribes believers’ physical appearance or clothing. j Propagation: Whether the religion attempts to propagate their views and persuade others of their correctness (U.S. v. Meyers, 1996, 1483–1484). After enumerating the above test, the lower court in the Meyers case expounded upon it in the following passage: 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,

Ayahuasca Vision 2021  25 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 (U.S. v Meyers, 1996 [internal quotations omitted]). (See also, Africa, 662 F.2d at 1036 [holding that beliefs are secular, not religious]; Berman, 156 F.2d at 380–81 [holding that beliefs are moral and social, not religious]; Jacques, 569 F. Supp. at 736 [holding that beliefs are personal, not religious]; Church of the Chosen People, 548 F. Supp. at 1253 [holding that beliefs are sexual and secular, not religious]). Applying these factors, the Meyers Court found that Meyers had failed to meet the test for religious sincerity for the following reasons: While Meyers may sincerely believe that his beliefs are religious, this Court cannot rely on his sincerity to conclude that his beliefs rise to the level of a religion and therefore trigger RFRA’s protections. Meyers is, of course, absolutely free to think or believe what he wants. If he thinks that his beliefs are a religion, then so be it. No one can restrict his beliefs, and no one should begrudge him those beliefs. None of this, however, changes the fact that his beliefs do not constitute a religion as that term is uneasily defined by law. Were the Court to recognize Meyers’ beliefs as religious, it might soon find itself on a slippery slope where anyone who was cured of an ailment by a medicine that had pleasant side-effects could claim that they had founded a constitutionally or statutorily protected religion based on the beneficial medicine. … Meyers’ professed beliefs have an ad hoc quality that neatly justify his desire to smoke marijuana. … Meyers’ beliefs more accurately espouse a philosophy and/or way of life rather than a religion. (U.S. v Meyers, 1996, at 1484) There are several noticeable limitations, lessons, and implications of the Meyers case. First, it should be noted that the case was decided by a US Circuit Court of Appeals for the Tenth Circuit, covering Colorado, New Mexico, Oklahoma, Kansas, Wyoming, and Utah. The case is not binding legal precedent all across the United States, though it would likely be seen as an instructive decision in other circuits. The only US Supreme Court case regarding ayahuasca, the UDV case discussed above, did not assess the sincerity of the UDV religion and therefore there is not a uniform, nationwide standard on how to assess religious sincerity at this point.

26  Sean T. McAllister Next, the factors set out in the Meyers case show a judicial bias and a strong preference for Western stylized religious motifs like a holy text, hierarchy, and detailed doctrines, rules, dogma, and punishments for poor behavior. Many of these concepts are foreign to the indigenous traditions from which ayahuasca use derived. For example, for many people, ayahuasca is a revelatory religious experience, where the meaning is not set out in advance, but only revealed in the depth of the experience. Nevertheless, the Meyers factors provide a loose framework for ayahuasca churches to assess their practices in light of Court’s factors, but certainly should not be viewed as an end to the debate over what constitutes protected religious exercise in the United States. Next, balancing out the detailed list of Meyers factors is the explanation in RFRA itself that the exercise of religion includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” which reinforces the finding in the Meyers case that the threshold for showing a certain practice is religious in nature is low (42 USC § 2000bb-2[4]). This expansion of RFRA’s definition of religious exercise was passed in 2000 as part of the Religious Land Use and Institutionalized Persons Act and postdates the Myers decision (42 USC § 2000cc et seq). The expanded definition suggests that, so long as the use of ayahuasca is religious in nature, even if it is not central to a religious belief, then it can qualify as a religious practice. Any practitioner could also point to the fact that ayahuasca is a recognized religious practice for both the UDV and Santo Daime, though this recognition alone does not ensure all future ayahuasca-based churches would otherwise meet judicial factors for assessing religious exercise. Finally, the DEA relies on the Quaintance case to assess the sincerity of religious practices (U.S. v Quaintance, 2006). In Quaintance, members of the marijuana Church of Cognizance sought to set aside a conviction for possession of more than 50 kilograms of marijuana with intent to distribute. The Court applied RFRA and the Meyers factors in this case and found that the alleged marijuana church failed to qualify as a religion (U.S. v Quaintance, 2006). One defendant in the Quaintance lower courts testified the “purpose of life is to live a good life and help others. … the church teaches that the main thing in life is extending life and to live as long a life as possible” (U.S. v Quaintance, 2006, at 1157). The Quaintance Court found there was nothing “ultimate, profound, or imponderable” about the church’s explanation of the meaning of life and therefore it did not meet the “ultimate idea” standard of the Meyers factors (U.S. v Quaintance, 2006, at 1157). For example, the Court found “Defendants’ beliefs also ignore existential or cosmological concerns, such as an individual’s existence, his or her place in the universe, the nature or natural order of the universe, and the origin, structure, and space-time relationships of the universe” (U.S. v Quaintance, 2006, at 1157).

Ayahuasca Vision 2021  27 In terms of metaphysical beliefs, the Court stated, “The fact that cannabis has helped [the defendants] focus before,” or that marijuana makes “many people feel more alive, more aware, more in tune, likewise is not metaphysical or religious” (U.S. v Quaintance, 2006 at 1158– 1159). However, the Court found that, because the Defendants noted that marijuana is a “spiritual force that has the ability to accomplish things in the physical world,” they had minimally met the metaphysical belief criteria, noting the threshold should be low (U.S. v Quaintance, 2006 at 1159). In terms of a moral and ethical system, the Court found that A spiritual or ethical system is not comprised of simply one vague and unspecific motto. A simple phrase may sum up a morality, but the phrase alone cannot be the extent of the morality. The phrase must be underpinned by a more elaborate ethics. (U.S. v Quaintance, 2006, at 1161) Because the defendants’ moral and ethical system was summed up as “good thoughts, good words, good deeds,” the Court concluded that the defendants had not demonstrated that their beliefs were a moral or ethical system within the meaning of Meyers (U.S. v Quaintance, 2006, at 1161). In this case, each member of the church was entitled to adopt his or her own individual beliefs. The Court found this meant that the church’s beliefs were not comprehensive, stating, “the singular belief in the power of marijuana (even if that belief allegedly provides Defendants with a comprehensive set of answers to life’s problems) is insufficient as a matter of law to constitute a comprehensive set of religious beliefs” (U.S. v Quaintance, 2006, at 1164). Therefore, the defendants’ beliefs were found to be mono-faceted and centered around marijuana. In addition to these formal Meyers factors, the Court addressed several other considerations including: (1) Ad Hoc Beliefs, (2) Quantity of the Substance Involved, (3) Evidence of Commerce, (4) Lack of Ceremony or Ritual, and (5) Other Illegal Substances. The Court found that the Defendants previously viewed marijuana as a non-religious recreational endeavor, and therefore later claims to religious activity were ad hoc and undermined the sincerity of the religion (U.S. v Quaintance, 2006, at 1164). The Court noted the quantity of marijuana involved (equivalent of 229,000 marijuana cigarettes), suggested the Defendants possessed far more cannabis than needed to supply their members. The Court found the evidence of commerce, where the Defendant would be paid to transport cannabis, created a motive for profit, not religious activity. The Court noted there was no ceremony or questioning of a members’ beliefs before they became a member of the cannabis church, indicating membership was a convenience to justify criminal behavior and not a religious practice. Finally, the Court found that the fact the Defendants used cocaine on a regular basis undermined their

28  Sean T. McAllister claim they used cannabis for religious, and not secular purposes (U.S. v Quaintance, 2006, at 1174). Similar to the Meyers case, the Quaintance case is not binding law across the United States and pre-dates the expansion of RFRA’s definition of religious exercise when Congress passed the Religious Land Use and Institutionalized Persons Act in 2000. That said, and generally speaking, the case also provides potential guidance of practices for ayahuasca churches to avoid in order to be recognized as a bona fide religion. This includes avoiding practices or doctrine that make the religion look like a guise to avoid criminal prosecution, limiting the quantity of ayahuasca possessed to a reasonable amount needed to supply the church members, properly screening and indoctrinating church members, and avoiding the use of multiple controlled substances.

Soul Quest Church of Mother Earth Case Soul Quest is perhaps the most well-known ayahuasca church in the United States. It is incorporated as a non-profit in Florida and is located in Orlando. Ayahuasca is Soul Quest’s core sacrament, but it has admitted to members using multiple plant-based sacraments over the years, including ibogaine and mescaline. Soul Quest’s religious doctrine asserts that ayahuasca elevates users closer to the divine and ayahuasca’s use is commanded by God (See Soul Quests’ doctrine, available at https://www.ayahuascachurches. org/). Among other doctrine focusing on the divine elements of and interrelationship to Mother Earth, Soul Quest has also adopted the Ayahuasca Manifesto as part of its liturgy (Ayahuasca Manifesto, 2012). The DEA has been aware of and has been monitoring Soul Quest for several years. In August 2016, the DEA sent a warning letter to Soul Quest’s founder and spiritual leader, Chris Young, requesting he cease and desist in his use and distribution of ayahuasca (DEA Warning Letter, 2016). The DEA requested that Young submit a petition so that it may evaluate it “based on the specific facts regarding your plans to distribute controlled substances” (DEA Warning Letter, 2016). In response, Soul Quest submitted a 157-page petition to the DEA seeking an exemption to the CSA under the DEA’s Guidance in August of 2017. After waiting nearly three years without a response from the DEA, Soul Quest filed suit in the spring of 2020 seeking the Court to order the DEA to grant it an exemption from the CSA for its use of ayahuasca (Soul Quest Church of Mother Earth, Inc. v. Barr, 2020; See also, Hartney &Bartlett, 2020). Soul Quest’s lawsuit is a direct frontal assault on the DEA’s process for petitioning for a religious exemption. Soul Quest asserts its activities are protected under RFRA. It states that the DEA’s threats to arrest and prosecute its activities violate the Constitution and RFRA. The lawsuit seeks a permanent injunction prohibiting the DEA from prosecuting Soul Quest members for their religious activities. The lawsuit notes that the DEA’s

Ayahuasca Vision 2021  29 Guidance was adopted without proper procedure and that the DEA has never granted an exemption to anyone other than the UDV and Santo Daime and absent judicial relief. In response to the lawsuit, the DEA and Soul Quest agreed to stay the litigation while the DEA evaluated Soul Quest’s petition for an exemption from the CSA. As part of this assessment of Soul Quest’s church, the DEA sent Soul Quest a detailed letter asking them to explain many aspects of their history and religious doctrine. Among the topics addressed by the DEA’s inquiry was asking Soul Quest to address the following subjects: (a) Soul Quest’s relationship with the Oklevueha Native American Church (ONAC), (b) whether Soul Quest conducts any ceremonies outside of Florida with other organizations; (c) explaining its varying descriptions of its theology as either syncretic Christian, or based on Mother Earth concepts of Indigenous Peoples of South America, (d) identifying all controlled substances other than ayahuasca used since August 2017, (e) Soul Quest’s pricing structure for ceremonies; (f) identifying the source and quantity of the imported ayahuasca materials, and the quantity imported each year since January 2017; (g) whether Soul Quest has written policies for security, recordkeeping, and storage of controlled substances; and (h) requesting Soul Quest’s medical screening form and the names of all medical personnel providing medical services on site. In addition to the questionnaire, the DEA conducted site visits and interviewed Church leaders and members as part of its assessment of Soul Quest’s claims. Following its investigation, on April 16, 2021, the DEA issued a formal denial of Soul Quest’s petition for an exemption for its ceremonial use of ayahuasca under the CSA. While the DEA did not make a determination of whether Soul Quest is a bona fide religion, the DEA’s denial shows it intends to engage in a very rigorous assessment of any applications for exemptions. In the Soul Quest denial, the DEA noted that Soul Quest cites the Ayahuasca Manifesto as a sacred text to the church, but during DEA interviews, only one staff member mentioned this document. The DEA also noted that it doesn’t appear participants in church activities are required to understand church doctrine. The DEA noted participants generally visit once, or a few times, and don’t actively participate in the church. Next, the DEA claimed that the repeated focus on ayahuasca being a healing medicine, or therapeutic, cut against claims of religious exercises. In other words, in the DEA’s opinion, if you are doing therapeutic practices, and not religious ones, that undermines claims of religious exemptions. The DEA suggested that Soul Quest’s prior affiliation with ONAC, which subsequently ended, was done simply to cloak its activities with religiosity. Finally, the DEA found that the convoluted shipment route of the ayahuasca to Soul Quest (from South America to Europe, to New York, to Iowa, and then to Florida) showed that there was a real potential for diversion. Despite the DEA’s denial, Soul Quest’s litigation is ongoing as of the winter 2022. The group has filed an amended complaint and asked for an

30  Sean T. McAllister emergency injunction to prevent any prosecution of its leaders or members. However, the Soul Quest case shows that if you turn yourself over for an assessment to DEA, they are likely to apply very rigorous standards to the ayahuasca churches in an effort to minimize the number of exemptions granted. For this reason, many groups likely will avoid this DEA exemption process. On the other hand, the DEA’s decision provides yet another list of instructive concerns that could help guide future ayahuasca churches.

Arizona Yage Assembly Case Shortly after Soul Quest initiated its lawsuit, another set of plaintiffs filed suit on similar grounds. In May 2020, the Arizona Yage Assembly (AYA), North American Association of Visionary Churches (NAAVC), and Clay Villanueva (collectively, “AYA”) filed suit against the US Attorney General Barr, the DEA, and the DOJ in federal district court in California claiming the laws prohibiting importation, distribution, and possession of ayahuasca substantially burdened their religious practices (Arizona Yage Assembly et al. v. Barr, 2020). The complaint states it is the law of the land under RFRA that a sincere religious practitioner may consume ayahuasca tea for sacramental purposes, and that the DEA must exempt that conduct from criminal and administrative sanction. Importantly, and unlike Soul Quest, AYA did not file a petition or seek an administrative exemption for religious exercise with the DEA. It went right to federal court. The complaint asserted the very activity of drinking ayahuasca confirms their religious intent, because it is a demanding visionary experience that delivers rewards commensurate with sincerity. The founder of AYA expressed it: “Ayahuasca is the holy Sacrament of AYA, of which congregants must partake to receive the blessing of Communion” (AYA Complaint, 2020). AYA’s doctrine teaches that sharing ayahuasca sacramentally in ceremony is sharing a sacred substance that is not merely physical, and has the capacity to heal the entire human being, body, spirit, and mind, so that congregants can extend this healing to others and our entire world environment (AYA Complaint, 2020). The complaint explains that the NAAVC is an interdenominational association of visionary churches, formed as a religious non-profit corporation in the State of California. The complaint explains that NAAVC would like to import sacramentally prepared ayahuasca from South American sources, and to distribute ayahuasca to visionary churches, but that the DEA’s threats to enforce the CSA substantially burden NAAVC’s rights because they cannot import ayahuasca without fear of prosecution (AYA Complaint, 2020). The complaint argues that the DEA has no statutory authority under either the CSA or RFRA to judge the sincerity of religious practices. It argues that the DEA Guidance imposes an unconstitutional prior restraint

Ayahuasca Vision 2021  31 on religion exercise. The complaint states the DEA Guidance violates the Fifth Amendment by compelling them to self-incriminate themselves and admit illegal behavior. Based on these concerns, AYA sought a decree establishing its right to an exemption from the CSA prohibitions on manufacturing, distributing, importing, or dispensing ayahuasca. The complaint also asked the Court to invalidate the DEA Guidance as unconstitutional (AYA Complaint, 2020). Following the filing of the complaint, the case took several unexpected turns. First, 14 days after the complaint was filed, a joint state/federal drug task force raided the home of Plaintiff Clay Villanueva and seized 91 pounds of ayahuasca paste, 15 bottles of ayahuasca liquid, over 260 grams of psilocybin mushrooms, and more than $14,000 in cash (AYA Order Granting Defendants’ Motion to Dismiss, 2020). Plaintiffs quickly amended their complaint to allege a violation of Villanueva’s civil rights. While AYA viewed the raid as a direct result of Villanueva asserting his rights, the defendants in the Court claimed the raid was merely the result of a routine tip and was not taken as retaliation for the lawsuit. In the summer of 2021, Clay Villanueva was arrested and charged with numerous felonies related to his plant medicine work. In the fall of 2020, the federal judge in the civil case agreed with the government and dismissed the civil rights claim, along with other claims in the case, due to defects in the complaint (AYA Order Granting Defendants’ Motion to Dismiss, 2020). In this case, like in the Soul Quest case, the DEA offered to consider a request for exemption of the Plaintiffs. So far, the Plaintiffs have declined this offer, believing the DEA’s process is fatally flawed and illegal. As of this writing, the Plaintiffs have decided to transfer venue to the federal district court in Arizona and amend the complaint to address the issues identified with the initial judge in the case. Clay Villanueva’s criminal case remains open.

Announcement of DEA Rulemaking Process As part of a request for an extension of time in the AYA case, the government submitted a declaration to the Court that created significant hope and concern in the ayahuasca community. The DEA declaration explained that DEA is also actively engaged in updating and revising DEA’s existing regulations to incorporate consideration of issues arising under the Religious Freedom Restoration Act (RFRA) and to lay out the procedures by which applications for religious exemptions are to be handled. Revised regulations, when implemented, would supersede the document entitled Guidance Regarding Petitions for Religious Exemption from the Controlled Substances Act Pursuant to the Religious Freedom Restoration

32  Sean T. McAllister Act (2009 Guidance) (Declaration of Scott A. Brinks, Staff Coordinator, Policy Section, Import-Export Section, DEA, filed on July 16, 2020). (Arizona Yage Assembly et al. v. Barr, 2020) The DEA’s announcement that it would engage in rulemaking has created another opportunity and challenge for the ayahuasca community in the United States. In the declaration, the DEA explained the rulemaking process as follows, DEA expects to publish a Notice of Proposed Rulemaking in the Federal Register to obtain the views of the regulated community and the public. … DEA will open a public comment period, likely of 60 days, in accordance with DEA’s typical practice. DEA will consider any comments received, make any needed revisions, and then publish a Final Rule in the Federal Register (Declaration of Scott A. Brinks, Staff Coordinator, Policy Section, Import-Export Section, DEA, filed on July 16, 2020). (Arizona Yage Assembly et al. v. Barr, 2020) The DEA has, to date, given no indication of what the proposed rule would look like. Further, and with Joe Biden assuming the presidency in January of 2021, it remains to be seen if the DEA will actually carry forward with the proposed rulemaking. Once the new leadership is in place, in the bestcase scenario, the DEA could begin rulemaking as soon as the summer of 2021, but likely much later than that. If the DEA promulgates new rules, whether they will be more or less favorable to the ayahuasca community than the Guidance remains to be seen. Either way, it is essential that affected communities and stakeholders monitor this process and provide public comment to ensure the DEA consider the ayahuasca religious community’s voice during this process.

Seizures of Ayahuasca Shipments from South America When an ayahuasca church attempts to import ayahuasca, these shipments may be seized by US Customs Border Patrol (CBP) as suspected controlled substances (19 C.F.R. 145.59). In 2020, the ayahuasca community in the United States saw a significant increase of seizures of ayahuasca being shipped into the United States, primarily from South America (Chacruna Council for the Protection of Sacred Plants, 2020). Public information released by CBP indicates there were over 200 ayahuasca seizures at the border in 2020. As a result, many practitioners are seeking alternative sources of ayahuasca within the United States to avoid the problems around the seizure of packages from South America. For non-ayahuasca shipments, if a package is seized, the CBP is required to give the recipient formal notice of the seizure (See § 19 C.F.R. 162,

Ayahuasca Vision 2021  33 et. seq.). However, when a package contains a suspected Schedule I drug, such as ayahuasca, containing DMT, CBP will summarily destroy the package without providing any formal notice of seizure. As a result, parties who have ayahuasca seized currently have no way to contest or prevent the destruction of their property, raising both religious freedom and due process concerns. As of this writing, there has been at least one instance where an individual in Washington State sought return of ayahuasca seized upon importation and was subsequently arrested for a criminal violation. This highlights the risks of unrecognized religious practitioners importing ayahuasca. It should be noted that the legality of exporting ayahuasca from Brazil or Peru to the United States remains unclear and ambiguous. The Brazilian government requires a special permit to export ayahuasca out of the country that is rarely sought or granted (Labate, 2005). From Peru, export of ayahuasca is legal if it is exported from a recognized church to another recognized ayahuasca church; but very few ayahuasca churches in the United States have been formally recognized. Therefore, shippers in Peru are often unwilling to ship to the United States and those who are will not label these shipments as ayahuasca as required under federal customs law.

State-Level RFRAs and Constitutional Exemptions While federal law protects sincere religious practice from the federal government, ayahuasca users and practitioners could still be subject to state criminal prosecutions. In 1997, the Supreme Court held that RFRA’s protections for religious liberty only applied to the federal government and not state governments (City of Boerne v. Flores, 1997). Since this decision, 32 states have passed their own RFRA equivalent laws or have state supreme court decisions adopting the RFRA standards protecting religious liberty in these states.1 In each of these states, the state government would have to show it has a compelling governmental interest and is using the least restrictive means necessary to burden a religious practice. Similar to RFRA, at the state level, ayahuasca practitioners would still have to meet a threshold showing that they were engaged in protected religious exercise as defined by state law. To date, no state courts have had the opportunity to address religious exercise with ayahuasca. Assuming they can show their practices are religious in nature, ayahuasca users should be protected in these states under both state and federal law. At this time, at least six states have explicitly not adopted protections similar to RFRA: Maryland (Montrose Christian Sch. Corp. v. Walsh, 2001), Nebraska (In re Interest of Anaya, 2008), New Jersey (S. Jersey Catholic Sch. Teachers Org. v. St. Teresa of the Infant Jesus Church Elementary Sch, 1997), North Carolina (State v. Carignan, 2006), Oregon (Meltebeke v. Bureau of Labor & Indus, 1995), and Vermont (Office of Child Support, ex rel. Stanzione v. Stanzione, 2006). In each of these states, state courts

34  Sean T. McAllister have interpreted their respective Constitutional provisions for religious protections to not exempt practitioners from laws of general applicability, such as drug prohibition laws. As a result, while practitioners might be immune from federal prosecution in these states, they could still be prosecuted under state law. Therefore, practitioners in these states are more vulnerable. The law remains unclear in the following states: California, 2 Colorado, Delaware, Georgia, Iowa, Montana, Nevada, North Dakota, South Dakota, Utah, West Virginia, and Wyoming. In these states, the Courts and legislature have not directly decided what standard should apply to religious activities, such as the use of ayahuasca, that otherwise violate drug laws. Therefore, in these states, ayahuasca practitioners should proceed with caution.

Decriminalized Cities and States In 2019, Denver became the first city in the nation to decriminalize a psychedelic substance: psilocybin. Denver did not decriminalize other psychedelics, such as ayahuasca (McAllister, 2020). Therefore, the psilocybin decriminalization in Denver does not help ayahuasca practitioners. Following Denver’s lead, Oakland went further and decriminalized all entheogenic plants in May 2019 (McAllister, 2020). Oakland’s law decriminalized the personal possession, use, cultivation, non-commercial distribution, and manufacturing of ayahuasca within the city limits (McAllister, 2020). The measure also prohibited law enforcement in Oakland from spending any resources to prosecute these crimes (McAllister, 2020). Importantly, the City’s ordinance does not make “engaging in practices” with ayahuasca per se legal under the City code; it simply makes it the “lowest law enforcement priority” for the City. Further, the city’s resolution does not impact ayahuasca’s continued illegality under California or federal law. Other cities have adopted similar measures decriminalizing all entheogens, including ayahuasca, at the city level, including Santa Cruz, California; Washington, D.C.; and Ann Arbor, Michigan. Like Oakland, caution is also warranted in these decriminalized cities. Nothing prevents state or federal law enforcement agents from prosecuting someone in a decriminalized city for a crime associated with ayahuasca—though, again, religious users may have potential defense under federal law (RFRA) or under state law in states that have adopted their own RFRA protections. Finally, nothing about these city decriminalization measures explicitly authorizes the import or export of ayahuasca into those cities. In November 2020, Oregon voters approved Measure 110, the Drug Addiction Treatment and Recovery Act. The Measure is commonly referred to as a decriminalization of all personal possession of controlled substances. However, in reality, the Measure created a low-level offense related to the possession of controlled substances. If caught with a controlled substance

Ayahuasca Vision 2021  35 such as ayahuasca, people in Oregon could either be fined up to $100 or be required to do a drug and alcohol assessment. While this is decriminalization because there are no possible jail penalties, it is not accurate to say possession of ayahuasca is legal in Oregon. In addition, the Measure merely decriminalized possession and not distribution. As noted above, Oregon is also one of the states that has not adopted a state law version of RFRA that could be argued to protect religious exercise with ayahuasca. Therefore, practitioners in Oregon should proceed with caution regarding ayahuasca.

Conclusion As shown, the laws in the United States around the legality of ayahuasca are complex, detail oriented, and dichotomous in many ways. Anyone considering engaging in spiritual or religious practices with ayahuasca should proceed with extreme caution to minimize their risks. With the Soul Quest and AYA cases continuing to be litigated in 2021, federal courts will continue to be the battleground for expansion of protections for religious communities and adherents working with ayahuasca. Perhaps most importantly, if the DEA engages in new rulemaking as promised around obtaining an exemption from criminal law for the religious use of ayahuasca, the ayahuasca religious community will have a significant opportunity to influence government regulations and policy for years to come. Finally, as decriminalization measures gain momentum at the state level, the next few years are likely to be truly historic in terms of the legality of ayahuasca in the United States. For all these reasons, interested parties should keep a close eye on developments in the field and seek the help of qualified lawyers to advise them on these complicated issues.

Notes 1 Alabama, see Alabama Const. Art. 1, Section 3.01; Alaska, see Larson v. Cooper, 90 P.3d 125 (Alaska 2004); Arizona, see Arizona Revised Statute 41-1493.01; Arkansas, see A.C.A. 16-123-401, et seq.; Connecticut, see Conn. Gen. Stat. 52-571b; Florida, see Fla. Stat. 761.03; Hawaii, see State v. Armitage, 319 P.3d 1044 (Hawaii 2014); Idaho, see Idaho Code 73-402; Illinois, see 775 ILCS 35/15.; Indiana, see Ind. Code Ann. 34-13-9-8; Kansas, see K.S.A. 60-5303; Kentucky, see KRS 446.350; Louisiana, see La. R.S. 13:5233; Maine, see Rupert v. Portland, 605 A.2d 63 (Maine 1992); Massachusetts, see Rasheed v. Comm’r of Corr., 845 N.E.2d 296 (Mass. 2006); Michigan, see McCready v. Hoffius, 586 N.W.2d 723 (Mich. 1998); Minnesota, see Odenthal v. Minn. Conf. of Seventh-Day Adventists, 649 N.W.2d 426 (Minn. 2002); Mississippi, see Miss. Code Ann. 11-61-1; Missouri, see 1.302 R.S.Mo; New Hampshire, see State v. Mack, Case No-2019-0171 (N.H. 2020), available at https://www.courts.state.nh.us/supreme/opinions/2020/2020072Mack.pdf; New Mexico, see N.M. Stat. Ann. 28-22-3; New York, see Catholic Charities v. Serio, 859 N.E.2d 459 (N.Y. 2006); Ohio, see Humprey v. Lane, 728 N.E.2d 1039 (Ohio 2000); Oklahoma, 51 Okl. St. 253; Pennsylvania, see 71 P.S. 2404; Rhode Island, see R.I. Gen. Laws 42-80.1-3; South Carolina, see

36  Sean T. McAllister S.C. Code Ann. 1-32-40; Tennessee, see Tenn. Code Ann. 4-1-407; Texas, see Tex. Civ. Prac. & Rem. Code 110.003; Virginia, see Va. Code Ann. 57-2.02; Washington, see State v. Arlene Flowers, 389 P.3d 543 (Wash. 2017); Wisconsin, see Coulee Catholic Sch. v. Labor & Indus. Review Comm’n, 768 N.W.2d 868 (Wis. 2009). 2 Many observers believe California Courts would likely apply a heightened standard equivalent to the RFRA standard to protect religious exercise based on People v. Woody, 394 P.2d 813 (Cal. Sup. Ct. 1964), applying the compelling interest test to the government’s attempted prosecution of Native Americans using peyote for religious purposes.

References § 19 C.F.R. 162, et. seq. 19 C.F.R. 145.59. 42 U.S.C. § 2000bb–1(a) 42 U.S.C. § 2000bb-1(c). 42 U.S.C. § 2000bb–1(b). 42 U.S.C. § 2000cc et seq. 42 USC § 2000bb-2(4). Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981). Alvarado v. City of San Jose, 94 F.3d 1223, 1229 (9th Cir. 1996). Arizona Yage Assembly et al. v. Barr. (2020). Declaration of Scott A. Brinks, Staff Coordinator, Policy Section, Import-Export Section, DEA, filed on July 16, 2020, 20-cv-03098 (D. Ct. N. Dist. CA). Arizona Yage Assembly et al. v. Barr, 20-cv-03098 (D. Ct. N. Dist. CA) (May 5, 2020). AYA Complaint. (2020). https://www.bialabate.net/wp-content/uploads/2020/07/ Arizona-Yage-Assembly_1_2020.pdf AYA Order Granting Defendants’ Motion to Dismiss. (2020). https://www.bialabate. net/wp-content/uploads/2020/11/AYA-Order-to-Dismiss-Sept-2020.pdf Anonymous. (2012). Ayahuasca Manifesto. https://doorofperception.com/wpcontent/uploads/Ayahuasca-Manifesto_Anonymous_May-1st-2012.pdf Bartlett, B. (2019). The U.S. Drug Enforcement Administration problematic process for religious exemption for use of prohibited psychoactive substances. Chacruna.net. https://chacruna.net/the-u-s-drug-enforcement-agencysproblem at ic-pro c e s s -for -rel ig iou s - exempt ion-for -u s e - of-proh ibitedpsychoactive-substances/ Burwell v. Hobby Lobby, 573 U.S. 682 (2014). Chacruna Council for the Protection of Sacred Plants. (2020, May 14). Warning: Increase in recent seizures by Homeland Security in the US. Chacruna.net. https:// chacruna.net/warning-increase-in-recent-seizures-by-homeland-security-inthe-us/ Church of the Holy Light of the Queen v. Mukasey, 615 F. Supp. 2d 1210 (D. Or. 2009); Second Amended Judgment. (2012). https://www.bialabate. net/wp-content/uploads/2009/04/Santo_ Daime_Oregon_ Panner_Order_ Enjoining_Jan_6_2012.pdf Church of the Holy Light of the Queen v. Mukasey, Injunction. (2012). https:// www.bialabate.net/wp-content/uploads/2009/04/Santo-Daime_Oregon_ Panner_New_Order_Jan_6_121.pdf

Ayahuasca Vision 2021  37 City of Boerne v. Flores. (1997). 521 U.S. 507. DEA Interim Guidance. (2009). https://www.deadiversion.usdoj.gov/GDP/(DEADC-5)%20Guidance%20Regarding%20Petitions%20for%20Religious% 20Exemptions.pdf DEA Warning Letter. (2016). https://www.bialabate.net/wp-content/uploads/ 2017/03/Letter_DEA_Soul_Quest_Aug_2016.pdf Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990). Feeney, K., Labate, B. C., & Hudson, J. (2018). Bubbling with controversy: Legal challenges for ceremonial ayahuasca circles in the United States. In B. C. Labate and C. Cavnar (Eds.), Plant medicines, healing and psychedelic science (pp. 87–108). Springer. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006). Haber, R. (2011). The Santo Daime road to seeking religious freedom in the USA. In B. C. Labate & H. Jungaberle (Eds.), The internationalization of ayahuasca (pp. 301–318). Lit Verlag. Hartney, M., & Bartlett, B. (2020, October 13). DEA and the religious exemption: A fox guarding the henhouse. https://chacruna.net/dea-prohibitionreligious-freedom-ayahuasca-ceremonies/ In re Interest of Anaya, 758 N.W.2d 10, 19 (Neb. 2008). Labate, B. C. (2005). Legal, ethical, and political dimensions of ayahuasca consumption in Brazil. In B. C. Labate & S. L. Goulart (Eds.), O uso ritual das plantas de poder (pp. 397–457). Mercado de Letras. Labate, B. C. (2012). Paradoxes of ayahuasca expansion: The UDV-DEA agreement and the limits of freedom of religion. Drugs: Education, Prevention and Policy, 19(1), 19–26. doi: 10.3109/09687637.2011.606397 McAllister, S. T. (2020, May 18). Myths and realities about the decriminalization of psychedelics in the US. Chacruna.net. https://chacruna.net/ myths-and-realities-about-the-decriminalization-of-psychedelics-in-the-us/ Meltebeke v. Bureau of Labor & Indus., 903 P.2d 351, 361 (Or. 1995). Montrose Christian Sch. Corp. v. Walsh, 770 A.2d 111, 123 (Md. 2001). Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1070 (9th Cir. 2008). Office of Child Support, ex rel. Stanzione v. Stanzione, 910 A.2d 882, 887 n.1 (Vt. 2006). S. Jersey Catholic Sch. Teachers Org. v. St. Teresa of the Infant Jesus Church Elementary Sch., 696 A.2d 709, 715 (N.J. 1997). Soul Quest Church of Mother Earth, Inc. v. Barr, 20-cv-00701-WWB-DCI (D. Ct. Middle Dist. FL) (April 22, 2020). State v. Carignan, 178 N.C. App. 562, 2006 WL 1984426 (N.C. Ct. App. July, 18, 2006). Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 (1981). United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996); United States v. Quaintance, 471 F.Supp.2d 1153 (D.N.M. 2006). Wisconsin v. Yoder, 406 U.S. 205 (1972).

2 Church of the Holy Light of the Queen v. Mukasey The Regulation of a Santo Daime Church in the State of Oregon1 Henrique Fernandes Antunes In Brazil, besides the vast quantity of Amazonian Indigenous Peoples that consume ayahuasca, one can also highlight the presence of three ayahuasca groups founded between the 1930s and 1960s in the Amazon region, Santo Daime, Barquinha, and the União do Vegetal (UDV), known in the academic literature as the “Brazilian ayahuasca religions” (Labate & Araújo, 2002). In the late 1970s and beginning of the 1980s, the expansion of ayahuasca use throughout Brazil created new dynamics, as churches linked to Santo Daime and UDV were founded in some of the country’s largest cities. In the following decades, those groups started to expand abroad, establishing branches in Europe, North America, South America, and Asia. The first Santo Daime church in the United States, Céu do Beija-flor, was founded in 1988 in Boston. Two years later, Rex Beynon, the leader of the group, was arrested and detained for four months when a shipment of Santo Daime from Brazil was intercepted. However, at the time of the trial, the prosecution withdrew the charges and Beynon was permanently deported to Wales. Those events led to the closure of Santo Daime activities in the United States for three years. According to Jonathan Goldman, one of the members of the church, this decision was the result of a mutual agreement between members in the United States and Brazil. This agreement emerged because, at that time, there was no Santo Daime available in the country, and both parties did not want to risk sending or receiving new shipments. A few years later, in 1993, Goldman asked Padrinho Alfredo— the leader of Igreja do Culto Eclético da Fluente Luz Universal (ICEFLU), one of the major Santo Daime branches in Brazil—for permission to bring Santo Daime to Oregon. From 1993 to 1999, Goldman lead the Church of the Holy Light of the Queen (CHLQ) and received shipments of Santo Daime from Brazil without any complications with the US authorities (personal communication, Jonathan Goldman, December 9, 2016). This changed in 1999, when a Santo Daime shipment was seized, which sparked disputes between the federal government and CHLQ members. On May 20, 1999, a shipment of Santo Daime from Brazil addressed to Jonathan Goldman was intercepted by US federal agents. With the help from the Treasury and Justice Department, the Drug Enforcement Agency

38

DOI: 10.4324/9780429001161-3

Church of the Holy Light of the Queen v. Mukasey  39 (DEA) obtained a search warrant for Goldman’s residence. The agents entered his home carrying guns, searched his residence and confiscated the Santo Daime. At the time, Goldman was arrested, and remained 12 hours in custody until he was released on bail (United States. District Court of Oregon, 2008, p. 8). Shortly thereafter, the CHLQ contacted the State of Oregon’s Board of Pharmacy (SOBP), which has jurisdiction over the matter of the distribution of controlled substances in the state, seeking permission to perform their ceremonies in a religious context (Haber, 2011). The SOBP held a hearing in November 2000, and decided that the state of Oregon “does not consider sacramental use of the Santo Daime tea in the Church’s religious ceremonies to constitute abuse of a controlled substance,” and stated that the board, “neither possesses nor plans to exercise regulatory authority with regard to the religious practices of the Santo Daime Church in Oregon” (United States. District Court of Oregon, 2008, p. 9). Despite the decision of the SOBP that, according to the principles of US federalism, would have primary responsibility for deciding on public health issues, the federal government threatened to bypass the findings of the board. They declared that the tea was not only unsafe, but also posed a threat to the country’s public health (United States. District Court of Oregon, 2008, p. 10). According to the church representatives, although Goldman and the rest of the members of the church were not formally prosecuted, the institution was notified by a former Oregon state attorney in October 2001 that “the decision to prosecute [their] client for his conduct remains an open question pending the decision of the United States Department of Justice regarding [their] request for a controlled substance exemption” (United States District Court of Oregon, 2008, p. 8). Eight days later, the US Department of Justice issued a statement arguing that it “believes the prohibition on the importation, distribution, and possession of ayahuasca tea is the least restrictive means of furthering a compelling government interest” (United States. District Court of Oregon, 2008, p. 9). According to Goldman, the CHLQ assumed that the government’s refusal to reach an agreement regarding the importation of the tea put its members under the constant threat of being arrested and prosecuted for practicing their religion. Despite the decision to not exercise regulatory authority at the state level, the threat of arrest by the federal agencies remained. In light of this, the CHLQ members decided to continue to practice their ceremonies in secret, as they stopped keeping records of daime shipments and church activities (United States District Court of Oregon, 2008, p. 8).

The CHLQ’s Complaint against the US Government The attempts to reach an agreement ended in 2001. Years later, in 2008, the CHLQ decided to file a complaint against the federal government. According to Goldman, that gap between the beginning of the tensions with the

40  Henrique Fernandes Antunes government and the decision to file a complaint were due to differences of opinion between the CHLQ and other Santo Daime churches in the United States, and also ICEFLU’s disagreement with the decision to sue the US government. The lawsuit was filed by the CHLQ, which presented itself as a Christian religion. Jonathan Goldman, the CHLQ Board, and other church members stated that the federal government violated a number of legal principles, depriving them of their rights, privileges, and immunities guaranteed by law. They accused the government of violating the 1993 Religious Freedom Restoration Act (RFRA), which prohibits any agency, department or official of the United States, or any state from substantially burdening a person’s religion, even if the burden results in a rule of general application. The only alternative for the government is to demonstrate that the application of the burden to the person or institution promotes a compelling governmental interest and is the least restrictive means of promoting that interest. In addition, the CHLQ stated that the government violated the rights provided in the First, Fifth, and Fourteenth Amendments of the US Constitution. Specifically, the plaintiffs attempted to obtain a court order stating that government threats to arrest and prosecute members of Santo Daime for importing their sacrament into the United States and consuming it in their religious ceremonies would be unconstitutional and illegal, insofar as they burdened the religious practice of its members. Finally, the CHLQ sought an injunction ordering the federal government to allow the importation and consumption of Santo Daime in religious ceremonies, and to stop threatening to arrest or prosecute church members seeking to consume the tea in a religious context (United States District Court of Oregon, 2008, pp. 1–2). Following União do Vegetal’s (UDV) legal strategy, the CHLQ also described itself as a Brazilian religion with ancestral origins linked to Amerindian traditions, emphasizing how such traditions were incorporated into Christian beliefs. This was, in part, due to the actions of missionaries in the region, creating a legitimate Brazilian syncretic religion in the heart of the Amazon. After this brief introduction on the historical context, the complaint focused mainly on the centrality of ayahuasca to the beliefs and practices of Santo Daime, as well as its relationship with Christianity. According to the CHLQ, the sacrament Santo Daime is required for church ceremonies because it is believed that, by taking the tea, a member of the church could have a direct experience with Jesus Christ, considered as their savior. The institution also argued that Santo Daime was not only a vehicle for direct communion with God, but the very personification of the Holy Spirit, as stated in the hymns of the church. According to the CHLQ, the church doctrine that affirms Santo Daime as the presence of Christ is taught through hymns received by their religious leaders throughout the last century and sung during ceremonies in which the sacramental tea was

Church of the Holy Light of the Queen v. Mukasey  41 consumed. Thus, without the tea, the religion ceases to exist, considering it is an essential element of the church’s rituals and where church members would enact their faith, consuming Santo Daime as a form of communion (United States District Court of Oregon, 2008, pp. 4–5). The CHLQ also addressed the question of the plants used in the production of the tea and its chemical composition. It was pointed out that Banisteriopsis caapi, one of the plants used in the making of ayahuasca, contains three alkaloids, none of which were listed in the Controlled Substances Act (CSA), the federal statute which regulates the manufacture, possession, importation, distribution, and use of controlled substances in the United States. The other plant, Psychotria viridis has a small percentage of dimethyltryptamine (DMT), considered a controlled substance. The institution highlighted that a variety of trees, shrubs, and plants found in the American continent also contained DMT, but none of these species were listed as controlled substances. Thus, the CHLQ recognized that DMT is listed as a controlled substance in some chemical forms, particularly synthetic forms, and that it could be considered as a substance with potential for abuse. This was not the case with ayahuasca, which was considered by the church a natural, organic sacrament. In addition to discussing the chemical composition and legal framework of ayahuasca, the church also mentioned the regulation process of ayahuasca in Brazil as an exemplary model for public policy of the religious use of psychoactive substances. The institution emphasized that, in the late 1980s, the Federal Council of Narcotics (CONFEN) initiated an extensive two-year study of the religious practices of ayahuasca churches, which concluded that ayahuasca should not be considered a controlled substance. The CHLQ then focused on presenting the main arguments of UDV’s case against the US government. The institution stressed that, according to all courts in which the matter was examined, the government did not demonstrate that it had a compelling interest in preventing the importation, distribution, and consumption of ayahuasca in religious ceremonies. Thus, they failed to demonstrate that the tea was hazardous to the health of UDV members and the general public, or that there would be a likelihood of diversion to recreational use. The CHLQ argued that, likewise, the government did not have a compelling interest in banning the importation of Santo Daime. In addition, the CHLQ underlined that, with regard to health and safety issues, the government was unable to revisit these issues, since in November 2007, it admitted that it had no evidence to support its position. Furthermore, the church argued that the federal government had no additional evidence of an intent to divert ayahuasca to illicit markets. Therefore, the CHLQ claimed that the constant threats of persecution and seizure of daime in the United States had the effect of violating its members’ right to practice their religion. The institution highlighted that some of its members had dual citizenship, having the right to practice their religion in Brazil,

42  Henrique Fernandes Antunes but subject to arrest in the United States (United States District Court of Oregon, 2008, pp. 17–18). The church also claimed that the government’s actions not only violated their fundamental rights, but were illegal acts practiced on the margins of the law. Hence, the government’s insistence on pursuing and intimidating the CHLQ members for practicing their religious beliefs created an abuse of authority that did not have the support of the law. In order to reaffirm such a position, the institution referred to the US Commission on International Religious Freedom, established under the International Religious Freedom Act of 1998. In the Commission’s “Year 2000” report, they recognized and honored Brazil’s tolerance of “syncretic religions.” Santo Daime was one of the groups recognized by the Brazilian government and by other civil and religious institutions, such as the Brazilian Catholic Church. Based on this position, the CHLQ reasoned that the government’s actions to arrest and confiscate Santo Daime was not only illegal, but a particularly blatant violation of the doctrine of comity—which urges states and nations to mutually recognize their judicial, executive, and legislative acts—adopted by both countries, in view of CONFEN’s decision to allow the religious use of ayahuasca in Brazil in the 1980s (United States District Court of Oregon, 2008, p. 19). Finally, the CHLQ questioned the decision to allow UDV members to consume ayahuasca for religious purposes while the same right was denied to members of Santo Daime. According to the church, that constituted a violation of the rights of equal protection guaranteed by the Fourteenth Amendment of the Constitution of the United States. Thus, the institution argued that the balance of damages weighed in favor of the CHLQ, and that the government did not have an adequate remedy in law regarding their case. The church representatives argued that its members would continue to suffer irreparable damages and losses unless the court prevented the government from taking any further action against the group. Consequently, the church members filed a request for a preliminary injunction against the US government to ensure that their rights were not violated again. In addition to the injunction, the institution also requested a permanent injunction prohibiting the government from detaining, judging, or threatening to arrest members of the CHLQ for importing or consuming their sacrament (United States District Court of Oregon, 2008, pp. 20–25).

The Decision from the US District Court for the District of Oregon In March 2009, the US District Court for the District of Oregon issued its decision. One of the first topics addressed by the court was the credibility of the testimony of Jonathan Goldman, presented as the spiritual leader of the church, or “padrinho,” highlighting that he has been going to Brazil to participate in and study Santo Daime ceremonies. Judge Panner stressed that

Church of the Holy Light of the Queen v. Mukasey  43 Goldman learned Portuguese in order to receive instructions from leaders and to understand the hymns of Santo Daime, which constitute the doctrine of the church. The judge also pointed out that Goldman had been part of Santo Daime for nearly 20 years, founding the CHLQ in 1993, with authorization from one of the main branches of Santo Daime in Brazil, ICEFLU. Finally, the judge emphasized Goldman’s conduct over the years, claiming that he had demonstrated his sincerity and dedication to Santo Daime and its members (United States District Court of Oregon, 2009, pp. 1–2). In addition to briefly highlighting the trajectory of the CHLQ leader, the court mentioned the history of Santo Daime in Brazil. Panner based his argument on the categorization of Santo Daime as a syncretic religion that combines elements of folk Catholicism with indigenous beliefs of the Amazon region and African-Brazilian traditions. The same argument is recurrent in the anthropological literature on ayahuasca in Brazil, and was incorporated into public policies on the religious use of ayahuasca (Labate & Araújo, 2002; Goulart, 2004, 2008; MacRae, 2008). Thus, Panner stressed that Santo Daime has its origins in the jungles and rainforests of South America, where, for many centuries, the indigenous tribes of the Amazon manufactured a psychoactive tea from a vine that they used as medicine and in religious rituals. Panner pointed out that the vine and the tea made from it were called “ayahuasca,” meaning “vine of souls” or “vine of the dead.” As the name implies, it is believed that ayahuasca has the power to allow communication with the spiritual world. The judge noted that, according to the Santo Daime tradition, the founder of the religion, an African-Brazilian man named Raimundo Irineu Serra (later known as Mestre Irineu), worked as a rubber tapper in the remote Amazon region of northern Brazil, where he met a shaman who taught him about ayahuasca. Panner briefly detailed some of the stories about the origins of Santo Daime, when Mestre Irineu had his vision of a woman who was called the Queen of the Forest (Rainha da Floresta), who would later be identified as the Virgin Mary. He was then given instructions to start a new religion using ayahuasca as a sacrament, and was told that ayahuasca should be called “Daime” (Give me), as in a prayer, “give me light, give me strength, give me wisdom.” It was also noted that the followers of Santo Daime considered the tea as being the blood of Christ, analogous to wine in Catholic communion. The tea itself was considered a sacred being of great power. Hence, a church like the CHLQ could not endure without drinking the tea (United States District Court of Oregon, 2009, pp. 3–4). Ultimately, Panner concluded his argument on the history of Santo Daime by presenting a brief background of the regulation process in Brazil. He noted that the Brazilian government recognized the institution as a legitimate religion, and allowed the sacramental use of the tea. The judge also highlighted Santo Daime’s friendly relationship with other religions, especially the Catholic Church in Brazil, which considers it a legitimate religion and treats it as a full-fledged partner on humanitarian and environmental

44  Henrique Fernandes Antunes issues. In addition, the judge mentioned UDV’s status, which is also recognized by the Brazilian government as a syncretic religion that uses ayahuasca as a sacrament in its religious ceremonies, although it differs from the Santo Daime in doctrinal matters and its practices (United States District Court of Oregon, 2009, p. 5). In addition to the historical background of Santo Daime and the ayahuasca regulation process in Brazil, the decision also focused on health issues regarding ayahuasca consumption. According to Panner, both parties discussed the extent of the danger represented by the consumption of Santo Daime during church ceremonies. For the judge, there was no doubt that the tea could be dangerous if used improperly. Nevertheless, according to information included in the testimony of Jimmy Gurulé—an ex-federal and state prosecutor in drug trafficking cases and a professor in the field of criminal law—presented by CHLQ as an expert on the issue of narcotics trafficking, Panner highlighted that Church members usually consume a small dose of ayahuasca (United States District Court of Oregon, 2009, p. 8). Moreover, the judge emphasized excerpts from Goldman’s testimony in which he stated that, in all his years with the CHLQ, he did not observe any case in which someone had suffered a serious physical or mental harm as a result of the consumption of Santo Daime. Also, no apparent harmful effects were found in Brazilians who regularly consumed tea during religious services for more than 30 years. In addition, Panner argued that a number of experts presented by CHLQ suggested that the tea could have benefits for the physical and mental health of church members, although they warned that more extensive and stricter scientific studies were necessary to confirm possible health benefits. Furthermore, the court pointed out that the government did not provide evidence that ayahuasca was addictive or that it could cause long-term health problems. Regarding this matter, the judge referred to the testimony of two government experts in neurosciences and pharmacology, Frankenheim and Tella, that were based on studies on LSD and DMT in its pure state. In Panner’s view, studies concerning the intravenous use of LSD and DMT in their pure form were only marginally relevant in assessing the risks of Santo Daime consumption in religious ceremonies (United States District Court of Oregon, 2009, pp. 9–10). The court cited a study by psychiatrist John H. Halpern that was endorsed by the CHLQ members. Judge Panner emphasized that Halpern wrote extensively about the consumption and abuse of hallucinogenic drugs, including research on the health of members of the Native American Church (NAC) who use peyote as a sacrament (Halpern et al., 2005). Panner highlighted Halpern’s report on the CHLQ, published in August 2008, as the only study conducted among members of Santo Daime in the United States (Halpern et al., 2008). While stressing that Halpern recognized the limitations of the study, Panner found the research relevant and useful in assessing the health risks of Santo Daime among the CHLQ

Church of the Holy Light of the Queen v. Mukasey  45 members. According to Panner, the results presented by Halpern were similar to research conducted in the late 1990s on Santo Daime and the UDV (Callaway et al., 1999) that concluded that members of these religions usually lost interest in the use of alcohol, cocaine, and other addictive psychoactive substances (United States. District Court of Oregon, 2009, pp. 10–11). The court also mentioned the testimony of George Gerding, one of the experts presented by the CHLQ, who stated that the set (the intent of the user and their expectations) and the setting (the environment in which the substance is consumed) are important in determining the effects of a drug on the individual. In light of this, Panner argued that the set of members and the setting presented in the CHLQ ceremonies would be able to reduce the potential danger posed by the tea (United States District Court of Oregon, 2009, p. 12). Another point raised by Panner concerns the prohibition of proselytism by the Santo Daime churches, especially regarding the screening of new members. The judge emphasized that new members generally hear about the church from friends or relatives, and that candidates generally must have a member of the church as their sponsor. Panner noted Goldman’s argument that Santo Daime is a hard spiritual path that is not suitable for most people. Thus, in its screening process, the CHLQ attempts to select only those participants who have a serious attitude of respect toward the church, seeking to exclude candidates with the profile of recreational users (United States District Court of Oregon, 2009, pp. 12–13). The court also argued that Santo Daime’s consumption is restricted to rituals, so that the CHLQ members only ingest the drink by participating in a controlled religious ceremony. On the other hand, the consumption of Santo Daime outside the church environment is considered a sacrilege. Panner reasoned that members are barred from leaving the ceremony before it is concluded, and that the church selects experienced members to monitor the group during rituals, who may suffer from nausea, diarrhea, or other discomforts, with special attention to newcomers (United States District Court of Oregon, 2009, pp. 14–15). Regarding the participation of children in rituals, Panner argued that CHLQ members have allowed them to consume a negligible amount tea only on rare occasions. According to the court, there is no evidence that CHLQ would allow children to consume enough to experience psychoactive effects. The court also addressed the issue of Santo Daime consumption by pregnant women. In this context, the government raised the possibility that a fetus could be impaired if a pregnant woman ingested the drink. However, the court ruled that the government did not provide any evidence that any pregnant women had consumed the tea, or that any harm would have occurred to the fetus (United States. District Court of Oregon, 2009, p. 15) (Panner referred to the research by McKenna et al., 1998). Concerning the matter of diversion for recreational use, the government raised the possibility that the CHLQ would allow the consumption

46  Henrique Fernandes Antunes of Santo Daime for persons seeking recreational use only. To counter this argument, the government presented the testimony of the Deputy Director of the DEA, Denise Curry. Curry stated that the amount of tea confiscated at Goldman’s residence in 1999 indicated that CHLQ had more than its members needed. However, the court pointed out that the government did not provide any evidence that the CHLQ had allowed the tea to be consumed without church authorization. Judge Panner also indicated that the government did not provide any evidence of a viable market for Santo Daime, highlighting also that DMT is not a commonly abused drug (United States District Court of Oregon, 2009, pp. 16–17). After examining health issues and the possibility of diversion for recreational use, the court issued its decision, arguing that the government failed to provide concrete evidence in both matters. In its final conclusion, the court pointed out that RFRA prohibited the federal government from burdening the exercise of a person’s religion even if the burden resulted from a rule of general applicability. Judge Panner pointed out that the Ninth Circuit Court asserted that, to establish a claim based on the RFRA, sufficient evidence must be presented to allow a judge to find the existence of two elements. First, the practices upon which the governmental burden applies should be characterized as an “exercise of religion.” Second, government action should substantially burden the exercise of the religion of the group or person claiming the application of RFRA. If these criteria are met, the burden would then shift to the government, which would have to prove that the challenged government action was established in accordance with a compelling government interest and implemented through the least restrictive means possible. If the government did not comply with such requirements, the court should establish that there was, in fact, a violation of RFRA (United States District Court of Oregon, 2009, pp. 17–18). In the view of the court, the CHLQ was successful in substantiating their claim that they were sincere in their religious beliefs and that the ceremonial use of Santo Daime was essential to their religion. In light of this, Panner argued that it was obvious that prohibiting the use of the tea would constitute a substantial burden for the exercise of the CHLQ members’ religion. Thus, the court accepted the premise of the CHLQ’s sincere exercise of religion, shifting the burden of proof to the government (United States District Court of Oregon, 2009, pp. 18–19). In that regard, Panner concluded that the government did not demonstrate that it had a compelling interest that justified the prohibition of Santo Daime. Overall, Panner argued that the government had a vested interest in regulating any drug included in the Schedule I list of the Controlled Substances Act, such as DMT, and that there was no doubt that ayahuasca could be dangerous if misused. However, the RFRA required a more specific investigation into the government’s interests. In the case of the CHLQ, the court concluded that there was enough evidence indicating that tea

Church of the Holy Light of the Queen v. Mukasey  47 would be consumed only in a ritual context by church members (United States District Court of Oregon, 2009, pp. 19–20). The court also rejected the argument that the government had a compelling interest in maintaining the integrity of the DEA’s administrative process by refusing to approve religious exemptions under the CSA. According to Panner, the Supreme Court set a precedent for the UDV, stating that the RFRA clearly establishes that courts could recognize exceptions to the procedures of the law (United States District Court of Oregon, 2009, pp. 20–21). Ultimately, the court concluded that the government did not demonstrate that the prohibition of Santo Daime would be the least restrictive means of promoting its interests. The court also pointed out that the State of Oregon considered the sacramental use of Santo Daime by the CHLQ in religious ceremonies as a practice that would not be subject to regulation. Additionally, Panner stressed that the Native American Church’s use of peyote in religious ceremonies set a precedent for the religious use of Santo Daime. Hence, the court decided to grant an injunction exempting the CHLQ from the application of the Controlled Substances Act for the religious use of Santo Daime (United States District Court of Oregon, 2009, pp. 21–22). Thus, Judge Panner ruled that the “defendants are barred from prohibiting the importation, storage, distribution, and use of Daime tea by plaintiffs for religious ceremonies” (United States District Court of Oregon, 2012b). The court decided to issue an Amended Judgment, intended to enable the parties to agree on procedures for the importation, storage, distribution, and use of the Santo Daime for the CHLQ ceremonies (United States District Court of Oregon, 2012a). To date, no formal agreement has been established between the DEA and CHLQ on the regulation of the religious use of the Santo Daime, and the institution is operating without any type of contract or document regulating the relations between the parties.

The Regulation of Ayahuasca in the State of Oregon and the Relationship between Government and the CHLQ In the case of the CHLQ, as well as in the UDV case, the government focused on the possible health risks presented by ayahuasca, the potential for diversion to recreational use, and it argued that the possibility of exemptions would jeopardize the capacity of its agencies to implement health policies. The federal government also claimed that the exemption would jeopardize its leading role in the War on Drugs regarding other nations. The court agreed with the government that ayahuasca should be considered a controlled substance. However, despite the position of the court, the CHLQ was successful in following the UDV’s legal strategy based on the RFRA. Nonetheless, some differences emerged between UDV’s and CHLQ’s legal disputes, both in their development and in their outcome. This was, in part, due to the initiatives and new strategies of the government, and

48  Henrique Fernandes Antunes partly to the particularities of these ayahuasca churches. Regarding the CHLQ, the government took a different strategy than the UDV case, questioning the sincerity of the exercise of the religion of the church members. It seems that the change in strategy was due to the fact that, according to RFRA, the recognition of the sincere exercise of religion shifts the burden of proof to the government, which has to prove that the measures taken are not only necessary but also the less restrictive means of dealing with the issue at hand. Since the government was defeated earlier, as it failed to substantiate its arguments in accordance with the requirements of RFRA in the UDV case, the non-recognition of the CHLQ members’ sincere exercise of religion indicated a more conservative stance and a shift in legal strategy. Nonetheless, the district court recognized the CHLQ’s practices as a sincere exercise of religion, based particularly on Jonathan Goldman’s deposition and also on the categorization, broadly diffused in the academic literature, of Santo Daime as a syncretic religion that includes elements of folk Catholicism, indigenous practices of the Amazon region, and African traditions, among other cultural references. It should be noted that both the UDV and the CHLQ had their shipments seized in the same period. However, while the UDV quickly mobilized to prosecute the government, the CHLQ had to become independent from other Santo Daime churches in the United States and the main church in Brazil, ICEFLU, in order to file the lawsuit against the federal government. The difficulty in establishing a consensus within the institution has to do mainly with the diversification and particularities of the trajectory of Santo Daime expansion undertaken by ICEFLU. Unlike UDV, one of the main characteristics of ICEFLU, described in the academic literature, is its openness and adaptability to new cultural contexts; one of the factors responsible for promoting the worldwide expansion of the institution. At the same time, this approach created limitations for its regulatory power and in its ability to establish unilateral strategies for the administration of affiliated centers (Labate & Assis, 2016). Another strategy divergence that seems to confirm such hypotheses is that the UDV established an agreement with the DEA to regulate the importation, distribution, and consumption of ayahuasca, while the CHLQ refused to make any type of agreement or contract with the federal agency. Despite the differences, as well as the changes in strategies presented by the government in the cases of UDV and the CHLQ, the outcome of both disputes was based on the same principles. The courts considered ayahuasca a controlled substance, but one which was liable to obtain an exemption for religious use in the application of the CSA. As in the case of the UDV, no consensus was ever reached on the arguments and positions of the federal government agencies and the CHLQ. Throughout the unfolding of legal disputes, the government insisted on defending ayahuasca’s classification as a controlled substance that posed serious health risks to its users, and claimed that both groups did not have the right to claim an exemption

Church of the Holy Light of the Queen v. Mukasey  49 for religious use. On the other hand, both the UDV and the CHLQ insisted that the drink was a sacrament whose health risks were negligible since its consumption was carried out in a controlled religious ceremonial environment. Accordingly, the institutions in question maintained that ayahuasca should not be classified under the rubric of “controlled substances,” that the government’s actions lacked legitimacy, and that it did not possess the adequate legal mechanisms to properly regulate their practices. While admitting that the tea was, in fact, a controlled substance, the preeminence of the Religious Freedom Restoration Act over the Controlled Substances Act was maintained in both legal disputes. Thus, the federal government was obliged to demonstrate that the prohibition of ayahuasca served as a compelling interest, not only by being necessary, but also as the least restrictive means of dealing with the issue of the religious use of ayahuasca in the country. The outcome of the dispute between the CHLQ and the US government, and the case of the UDV, relates to the balance of rights in which, on the one hand, there was the burden imposed by the government on the freedom of religion of the CHLQ and its members and, on the other hand, the potential dangers and risks that the use of ayahuasca presented to the government, as well as to its users. In these disputes, categories and terminologies were put into motion and operated in different ways by experts from both sides, upholding different strategies and legal conceptions about the preeminence and applicability of certain laws to the detriment of others. In a broader perspective, the cases revolved around a central question: What is the scope and, in contrast, the limits of the state, in imposing regulations that interfere with the fundamental rights of its citizens; in this case, their religious freedom? The point here is not to make a final statement on such a complex matter. Nevertheless, the outcome of these cases seems to confirm the hypothesis that, in the case of the United States, the Religious Freedom Restoration Act enjoys preeminence over certain other statutes of the country, thus indicating the importance that the right of religious freedom possesses within this legal system.

Note 1 This work in is the result of a research sponsored by São Paulo Research Foundation (FAPESP), Grant number 2013/24663-9.

References Callaway, J. C., McKenna, D. J., Grob, C. S., Brito, G. S., Raymon, L. P., Poland, R. E., Andrade, E. N., Andrade, E. O., & Mash, D. C. (1999). Pharmacokinetics of Hoasca alkaloids in healthy humans. Journal of Ethnopharmacology, 65(3), 243–256. Goulart, S. L. (2004). Contrastes e continuidades em uma tradição amazônica: as religiões da ayahuasca [Contrasts and continuities in an Amazonian tradition: The ayahuasca religions] (Doctoral dissertation). Unicamp, Brazil.

50  Henrique Fernandes Antunes Goulart, S. L. (2008). Estigmas de grupos ayahuasqueiros [Stigmas of ayahuasca groups]. In B. C. Labate (Ed.), Drogas e cultura: novas perspectivas [Drugs and culture: New perspectives] (pp. 251–288). EDUFBA. Haber, R. (2011). The Santo Daime road to seeking religious freedom in the USA. In B. C. Labate & H. Jungaberle (Eds.), The internationalization of ayahuasca (pp. 301–318). Lit Verlag. Halpern, J. H., Sherwood, A. R., Hudson, J. I., Yurgelun-Todd, D., & Pope, H. G., Jr. (2005). Psychological and cognitive effects of long-term peyote use among Native Americans. Biological Psychiatry, 58(8), 624–631. Halpern J. H., Sherwood A. R., Passie T., Blackwell K. C., Ruttenber A. J. (2008). Evidence of health and safety in American members of a religion who use a hallucinogenic sacrament. Medical Science Monitor, 14(8), 15–22. Labate, B. C., & Araújo, W. S. (Eds.). (2002). O uso ritual da ayahuasca [The ritual use of ayahuasca]. FAPESP/Mercado das Letras. Labate, B. C., & Assis, G. L. (2016). The religion of the forest: Reflections on the international expansion of a Brazilian ayahuasca religion. In B. C. Labate, C. Cavnar, & A. K. Gearin (Eds.), The world ayahuasca diaspora: Reinventions and controversies (pp. 57–77). Routledge. MacRae, E. (2008). A elaboração das políticas públicas brasileiras em relação ao uso da ayahuasca [The elaboration of Brazilian public policies regarding the use of ayahuasca]. In B. C. Labate (Ed.), Drogas e cultura: novas perspectivas [Drugs and culture: New perspectives] (pp. 289–314). EDUFBA. McKenna, D. J., Callaway, J. C., & Grob, C. S. (1998). The scientific investigation of Ayahuasca: A review of past and current research. The Heffter Review of Psychedelic Research, 1, 65–77. United States. District Court of New Mexico. (2002). O Centro Espírita Beneficente União do Vegetal v. Ashcroft. http://www.bialabate.net/pdf/udv_usa/88%208. 12.01%20memorandum.pdf United States. District Court of Oregon. (2008). The church of the holy light of the queen complaint. https://www.courtlistener.com/opinion/2482682/churchof-the-holy-light-of-the-queen-v-mukasey/ United States. District Court of Oregon. (2009). The church of the holy light of the queen complaint v. Mukasey et al. http://bialabate.net/wp-content/uploads/ 2009/04/3–90508-memo-and-motion-restraining-order-prelim-injunction.pdf United States. District Court of Oregon. (2012a). The church of the holy light of the queen complaint v. Holder et al., order. http://www.bialabate.net/wp-content/ uploads/2009/04/164–32709-amended-judgment.pdf United States. District Court of Oregon. (2012b). The church of the holy light of the queen complaint v. Holder et al., Second amended judgment. DEAD LINK http://www.bialabate.net/wcontent/uploads/2009/04/Santo_Daime_Oregon_ Panner_Order_Enjoining_Jan_6_2012.pdf

3 Intersecting Cultures Exploring Ayahuasca’s Legal and Ethical Journey in Canada Emma Garrod and Katrina Blommaert

Ayahuasca has experienced a meandering legal and ethical journey in Canada. Globalization has brought ayahuasca to this country and many are keenly interested in the profound health and spiritual benefits of this medicine. However, the legal status of ayahuasca in Canada creates barriers for those who may seek it out. Currently, the possession, sale, and use of ayahuasca in Canada are criminalized, save for exemptions from the Office of Controlled Substances (OCS) obtained by six established churches in Toronto, Montreal, and Winnipeg, making allowances to legally import and use ayahuasca in spiritual rituals. This is the first known case in which exemptions were provided for “public interest,” as opposed to medical or scientific rationales. This chapter will explore the legal journey ayahuasca has taken, including the specific regulations proposed by the Canadian government to the Céu do Montréal (CdM) church. It will also discuss the implications of criminalization, and resulting lack of regulation, of ayahuasca in Canada, including restrictions on medical and scientific applications. Because of these current restrictions, many Canadians who aren’t members of the exempted churches travel to Peru and other countries in South and Central America where ayahuasca ceremonies are held more openly. The implications of this type of tourism and the use of ayahuasca in Canada, a place far removed from endemic regions, belong in this discussion. Finally, the current drug policy landscape in Canada and potential directions for the regulation of ayahuasca will be examined. In Canada, the Controlled Drugs and Substances Act (CDSA) legislates control of certain drugs, their precursors, and other substances, and the Food and Drug Regulations pertain to both food and drugs. Both are administered by Health Canada, the federal department responsible for national public health. In the CDSA, N,N-dimethyltryptamine (DMT), harmalol, and harmaline, active chemical components in ayahuasca, are classified as Schedule III drugs, alongside other psychedelics such as LSD and psilocybin (Department of Justice Canada, 2019). Interestingly, harmine and tetrahydroharmine, analogs of harmaline found in much greater quantities in ayahuasca, are not scheduled (Tupper, 2011). Plants containing these

DOI: 10.4324/9780429001161-4

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52  Emma Garrod and Katrina Blommaert chemicals commonly used to create the ayahuasca brew, Psychotria viridis and Banisteriopsis caapi, are not explicitly named in the legislation, but the CDSA states that “for the purposes of this Act, a reference to a controlled substance includes a reference to any substance that contains a controlled substance,” and Health Canada has stated that “the plant itself would be controlled and is therefore illegal” (Canadian Broadcasting Company [CBC], 2018). This differs from peyote (Lophophora williamsii), which the CDSA explicitly exempts from control, despite the fact that “mescaline and any salt thereof” is listed as Schedule III (Department of Justice Canada, 2019). Conviction of possession of a Schedule III substance without a prescription can result in a maximum three-year sentence, and trafficking convictions can result in a sentence of up to ten years. Harmalol, harmaline, and DMT are also listed as restricted drugs under Part J of the Food and Drug Regulations (Health Canada, 2022a). However, this legislation does not determine that controlled substances may never be used, and exemptions can be sought under Section 56 of the CDSA. Section 56 outlines that: The Minister may, on any terms and conditions that the Minister considers necessary, exempt from the application of all or any of the provisions of this Act or the regulations any person or class of persons or any controlled substance or precursor or any class of either of them if, in the opinion of the Minister, the exemption is necessary for a medical or scientific purpose or is otherwise in the public interest. (Department of Justice Canada, 2018) Exemptions have been granted for the purposes of supervised drug consumption as a harm reduction initiative (Department of Justice Canada, 2018), or for investigation in clinical research, for example MDMAassisted psychotherapy for PTSD or heroin-assisted treatment for opioid use disorder. Despite this clearly written legislation, legal ambiguity has lingered, and plant materials are available for purchase, often labeled “not for human consumption.” This gray area presents a loophole in which individuals have the option of buying B. caapi and P. viridis separately, and creating the ayahuasca brew themselves. These ingredients can be sourced either through online or in herbal shops in most major Canadian cities, and websites such as Amazon and Etsy offer seeds of both species for sale. Due to the criminalization of DMT, harmalol, and harmaline in Canada as described above, there is no way of verifying quality or purity of what is being consumed, and often admixtures of the brew are consumed. Online retailers provide varying amounts of information about the sources of the plant materials, but most have an explicit disclaimer that they are not for human consumption, but rather intended for incense, soap-making, or decorative purposes. Health Canada has stated that “substances listed in Part J of the Food and Drug Regulations are substances that are considered to have no medical

Intersecting Cultures  53 benefit” (CBC, 2018), but it is well documented that ayahuasca has been used for healing and spiritual benefits since pre-Columbian times (Tupper, 2006). More recently, researchers have begun investigating these benefits, finding improvements in levels of depression, anxiety, problematic substance use, and an increase in hopefulness (Domínguez-Clavé et al., 2016). It has also captured the interest of many Canadians, who have sought out ceremonies at home and abroad. Canadians may seek out ayahuasca ceremonies for healing of chronic conditions, addictive disorders, depression, post-traumatic stress disorder, anxiety, spiritual development, and personal growth (On Drugs, 2018; Maté, 2018). These individuals are often seeking something not currently offered in Canadian culture or poorly addressed by Western medical approaches. There is a vibrant and widespread ayahuasca community in Canada, though centers and practitioners working with ayahuasca are typically wary of sharing information publicly for fear of retribution. Informal review forums online provide the basis for sharing information about the effectiveness and legitimacy of ayahuasca centers in Canada. The information shared often judges the lineage and background of those holding ceremonies, their business model and intentions for conducting ceremonies, and commitment to support the local and endemic communities. Individuals who conduct ceremonies in Canada have a variety of training backgrounds and licensing, and may have gone through an apprenticeship. The range of ceremony leaders’ experience is large; as noted by Ariel Levy (2016) in her piece for The New Yorker Magazine: Most people who take ayahuasca in the United States do so in small “ceremonies,” led by an individual who may call [themselves] a shaman, an ayahuasquero, a curandero, a vegetalista, or just a healer. This person may have come from generations of Shipibo or Quechua shamans in Peru, or [they] may just be someone with access to ayahuasca. The same holds true for ceremonies in Canada; the criminalization of ayahuasca undermines control or quality assurance for the plant materials used and the training of the practitioner. Despite the existence of many well-intentioned and trained facilitators, this poses many questions about the variability in training, safety of participants, cultural appropriation, and ecological issues. There are many centers that advertise immersive trainings in South American countries; these trainings can be anywhere from a weekend to a few years in length, with costs ranging from a few hundred to thousands of dollars, and are accessible to Canadians. Individuals who had a powerful experience with ayahuasca abroad may also stay on or return to provide services in the center they attended, and may eventually be initiated as facilitators and bring these practices back to Canada. Practitioners from South or Central America are also brought to Canada to lead ceremonies.

54  Emma Garrod and Katrina Blommaert Many Canadians have safe and profound healing experiences in ceremonies at home, yet the criminalization of ayahuasca and resulting lack of regulation also may present safety issues. Often, ceremonies are outside of cities in rural areas or on islands, and not proximal to emergency health centers. Further, there is no guarantee that those holding ceremonies conduct appropriate screening or have adequately prepared for potentially dangerous medical situations or mentally difficult experiences. When an activity has illegal components, it can be difficult for individuals to speak up and pursue legal action if violations occur. Unfortunately, reports of abuses endured in the ayahuasca community have been growing (Monroe, 2017). There have also been allegations of abuse within ceremonies in Canada, notably the reported incidences of sexual abuse by Guillermo Arevalo, a Peruvian shaman who was regularly brought to Canada to hold ceremonies (Oak, 2014; Maybin & Casserly, 2020). It should be emphasized that these instances reflect abuses of power, which regrettably are seen across many arenas that involve relationship dynamics of trust and power. This is not unique to communities that consume ayahuasca, and one cannot assume that the regulation of ayahuasca alone can address these systemic issues; however, an above-ground practice could bring professional accountability to the forefront. Many Canadians who want to attend ayahuasca ceremonies, but are limited by the legal status of ayahuasca in Canada, opt to visit ayahuasca centers abroad, typically in South America. There are many centers, some owned by Canadians, advertising retreats online. This approach effectively circumvents the legality issue while still catering to the Canadian population as a form of medical or spiritual tourism. Countless individuals have had life-changing and healing experiences in these settings, and this form of tourism has grown substantially (Homan, 2011). However, this raises questions about the impact on the traditional cultures hosting ceremonies, and on the safety of those involved. Unfortunately, there have been reported incidences of fatal violence involving Canadians. One example is the case of Sebastian Woodruff, a Canadian man whose travels to Peru to seek healing disturbingly led to his alleged killing of Shipibo-Conibo indigenous healer Olivia Arevalo Lomas, under whom he was studying at the Temple of the Way of Light. Later, Woodruff was killed by a group of local community members, allegedly in response to her death (CBC, 2018; Proctor, 2018). Others have become implicated in violence as retreat attendees. Joshua Stevens is a Canadian who, in an act of self-defense, stabbed and killed Unais Gomes; a fellow retreat attendee and someone who Stevens reported becoming friends with during their time in Peru. The two men were attending the Australian-owned Phoenix Ayahuasca retreat, and reportedly Gomes had consumed ayahuasca prior to attacking Stevens, leading to Stevens’ lethal act of self-defense (Grierson & Siddique, 2016). These cases highlight safety issues that can arise from lack of screening for individuals participating in ceremony, or cross-cultural clashes in charged circumstances. These are extreme cases, but for some seekers, the isolation,

Intersecting Cultures  55 sensitive mental and emotional states, and lack of resources and support can lead to precarious situations. This can partly be considered an indirect consequence of the criminalization of ayahuasca in Canada, as individuals travel to seek healing experiences unavailable in Canada. While there certainly may be financial gains for the communities these ceremonies take place in, these cases highlight potential harms and vulnerabilities. In recent years, ayahuasca integration clinics have been established across Canada in response to the pattern of Canadians traveling abroad to partake in ayahuasca ceremonies and experiencing significant self-reported insight and growth, only to then return home and lose the threads of their experience. Tanya Kammonen, a naturopathic doctor who underwent an apprenticeship under Dr. Gabor Maté exploring ayahuasca integration, describes the process as “a plant-assisted process of self-mastery” (On Drugs, 2018) in which the individual brings what they’ve learned in the ayahuasca ceremony into normal life, thereby attempting to integrate the experience in a meaningful and lasting way. While this can improve the psychological safety of the participant, there are criticisms of this pattern of ayahuasca consumption as a colonial practice in which individuals, acting out of their own self-interest for healing and personal growth, consume ayahuasca as a form of spiritual tourism, with little consideration of the impact of their actions on the communities, culture, people, and environment from which ayahuasca comes (Amor, 2018). Canadians ought to be attentive to how they may be replicating colonialist practices when consuming ayahuasca abroad and seek to interact with communities in an ethical and sustainable way. This leads to the broader discussion of the cultural appropriation of ayahuasca: taking the plants and practices, songs, and rituals that accompany ceremonies out of one culture and using them in an entirely different setting. These cultural transfers have varied from respectful borrowing to overt cultural theft (Tupper, 2009) when offered in settings outside the Amazon, including Canada. Further, the marketplace for spiritual experiences is unregulated (Amor, 2018), and creates a situation of varied practices with a large audience of seekers. What can also be missing from this dialogue is any sort of reliable information on where ayahuasca is sourced for consumption in underground ceremonies in Canada, and how its use impacts the communities and environment from which it is taken. In contrast, the first Canadian Santo Daime religious group to receive an exemption for ritual use, the CdM, sources their ayahuasca from a government-registered independent Brazilian Santo Daime church, and the plants used in these preparations are sustainably cultivated, rather than harvested from wild sources (CdM, personal communication, August 14, 2018). The issue of cultural appropriation of ayahuasca in Canada is exacerbated in the context of ongoing colonization and marginalization of Canadian indigenous communities. Meaningful reconciliation is urgently needed to address the historic and ongoing traumas of colonization, and resulting

56  Emma Garrod and Katrina Blommaert health, social, and environmental inequities in indigenous communities. A starting place may be to align with the principles of Ownership, Control, Access, and Possession (OCAP), which were established by the First Nations Information Governance Centre as a way of defining the ethical relationship between indigenous communities and their ties to their cultural knowledge, data, and information (First Nations Information Governance Centre, 2018). The illegality of ayahuasca means it is difficult to verify the information on where ayahuasca is sourced, how it is imported, whether it was done in a fair-trade manner, how the community it was taken from was impacted by this, whether the community it was taken from had any say in its procurement, and if the community was able to participate with any power in the process (Arnstein, 1969). Indeed, the potential financial gains are typically not equally distributed between all parties, and often are gained by those doing the appropriating (Tupper, 2009). As was noted by the Indigenous Acrean Peoples in their open letter at the World Ayahuasca Conference in 2016, participation does not equal power, and clear recommendations to shift some meaningful power, control, and autonomy over ayahuasca procurement, consumption, and decision-making to indigenous communities were made (World Ayahuasca Conference, 2016). Recommendations from the Brazilian 2010 Resolution of ethical principles of ayahuasca use, specifically, those pertaining to harvesting of ayahuasca, and more environmentally sustainable options for obtaining ayahuasca, are also important to consider (Labate & Feeney, 2012). As discussed above, there are many considerations and concerns with the use of ayahuasca in Canada but, for the most part, ceremonies have been conducted peacefully and below the legal radar. However, the interactions between these underground practices and regulatory authorities became national news in 2011. Dr. Gabor Maté, perhaps the most widely known underground practitioner, was warned by Health Canada in November 2011 to cease practicing with ayahuasca, or face legal repercussions (Posner, 2011). Dr. Maté is a retired family physician whose work for many years has focused on the mind-body connection and linkages between stress and illness. He had been using ayahuasca to treat illnesses such as addiction, mental health, and other difficult to treat chronic conditions, such as autoimmune disorders. Acknowledging that Western medicine is often unable to assist individuals with chronic conditions, he cites stories in which he has seen individuals immobilized by auto-immune diseases return to functional and independent living (Maté, 2015). He had administered the medicine to about 200 patients in the years prior to 2011, and his work was featured in a documentary entitled “The Jungle Prescription” which was prepared for The Nature of Things with David Suzuki, a long-running mainstream television series in Canada. His notoriety has both garnered the attention that led to this warning and has brought the conversation about the use of this medicine in Canada into the spotlight. Mere days

Intersecting Cultures  57 before the documentary was to air, Health Canada sent a letter to Dr. Maté stating they had received information that he may have been conducting a clinical trial using ayahuasca to treat addiction, advising him that these activities were prohibited without an exemption obtained from the Office of Controlled Substances (OCS) and providing information on how to obtain this permission (Beaulieu, 2011). He agreed to stop using the medicine, but hoped to get permission to use it in a therapeutic context (Posner, 2011). Due to the illegality of the components of ayahuasca, there are immense barriers to formal investigations into the safety and efficacy of this medicine in treating the various afflictions it has been reported to heal. Research on a controlled substances in Canada is fettered by financial and institutional barriers, including proper academic affiliations, federal licenses and temporary exemptions, and ethics board approvals. Yet, the recent renaissance of psychedelic research in Canada, including the investigation of MDMA-assisted psychotherapy as a novel treatment option for individuals with post-traumatic stress disorder (PTSD), holds promise for the expansion of psychedelic research using controlled substances (Yazar-Klosinski & Mithoefer, 2017). Recently completed phase 3 studies investigating MDMA-assisted therapy as a treatment for PTSD found that MDMAassisted psychotherapy significantly reduced PTSD symptoms and functional impairment for individuals with severe PTSD (Mitchell et al., 2021). Further, psilocybin-assisted therapy is being investigated globally for various mental health afflictions, and has been found to be safe and efficacious for individuals with anxiety, depression, obsessive-compulsive disorder, and tobacco and alcohol use disorders (Moreno et al., 2006; Grob et al., 2011; Johnson et al., 2014; Romeo et al., 2020; Carhart-Harris et al., 2021; Leger et al., 2021). This has sparked immense interest in potential positive impacts of psychedelic-assisted research in Canada, with many trials underway. Research on the use of ayahuasca for addiction and stress was being conducted in Canada in the time period when Maté was reprimanded by Health Canada. Researcher Gerald Thomas and his team were invited by an indigenous community to conduct an observational study of ayahuascaassisted treatment for problematic substance use and stress in 2011. Two retreats were facilitated and surveys were used to assess changes experienced by participants. They found statistically significant improvements for hopefulness, empowerment, and mindfulness, and self-reported alcohol, tobacco, and cocaine use declined (Thomas et al., 2013). The team concluded, “given the potential to decrease the personal suffering and social costs associated with addiction, further research is warranted” (Thomas et al., 2013, p. 10). Indigenous People in Canada experience a disproportionate rate of problematic substance use, largely due to the intergenerational trauma caused by colonization, the residential school system and other community-rupturing government policies (First Nations Health

58  Emma Garrod and Katrina Blommaert Authority [FNHA], 2013). The research team had obtained ethics approval to conduct the study but did not describe whether or not they had sought an exemption for the use of ayahuasca. However, an addendum noted that, at the time of the retreats, Health Canada had provided a recommendation for approval “in principle” to exempt certain forms of ceremonial ayahuasca use (Thomas et al., 2013). This “in principle” approval had been provided to the CdM, which leads us to their story. In 1996, Jessica Rochester traveled to Brazil and was initiated into Santo Daime. Upon her return to Canada, she founded CdM, and, in the following years, other Santo Daime groups grew out of CdM, in Quebec and Ontario (Rochester, 2017). Following the Santo Daime teachings, the CdM use Daime tea (ayahuasca) as their sacrament and import the tea from Brazil. In September 2000, the Canada Customs and Revenue Agency intercepted a shipment of the tea and turned it over to the Royal Canadian Mounted Police (RCMP) for chemical analysis (Tupper, 2011). It was found to contain DMT and harmala alkaloids, and when the CdM went to the RCMP office, they were informed that possession of Daime constituted an offense under the Canadian criminal code, and any further attempts to import or distribute it could result in criminal charges of trafficking a controlled substance. However, they were also provided information on how to apply for an exemption under Section 56. As the story goes, the RCMP anticipated a successful outcome and kept the tea for six months, expressing regret when they were obliged to destroy it (Tupper, 2011). Little did they know, it would take over 17 years from this point for the CdM to receive their exemption! In April 2001, the CdM began their application to Health Canada to request a Section 56 exemption. In September 2006, this application was approved “in principle,” pending receipt of documentation from the government of Brazil allowing legal export of tea (Rochester, 2017). The delay between 2001 and 2006 was, in part, due to the unfortunate death of Jane Maiangowi, an elder from a Canadian indigenous community who had invited an Ecuadorian healer to hold a healing ceremony (Tupper, 2011). The death was ultimately found to be from acute nicotine intoxication from the powerful tobacco preparations used in the ceremony, not from ayahuasca. While Health Canada waited to hear the toxicology results, the CdM application was put on hold. Further delays came from issues with the Brazilian export permits, and the full exemption had yet to be approved. In 2012, CdM made a legal demand for the Canadian government to respond to their request for exemption, which was ultimately denied (Rochester, 2012). In 2006, the Conservative party had gained power federally and, in 2007, implemented a new “National Anti-Drug Strategy.” The CdM believe that the Health Minister’s decision was based on ideological reasoning that disregarded expert information and the recommendation by the OCS, and that this ideology entailed a firm belief that all non-medical use of controlled substances is “abuse of drugs” (CdM, personal communication, August 14, 2018).

Intersecting Cultures  59 The federal Liberals, a party with a more progressive approach to drug policy, took power in 2015 and CdM renewed their application. They also combined efforts with the Montreal União do Vegetal (UDV) group, which had had previous successful legal appeals in the US, to educate stakeholders within the government and outside of it, based on science and religious legitimacy (Rochester, 2017). In June 2017, CdM, Eclectic Center of the Universal Flowing Light of Montréal, Canada was “granted the right to import and serve the Santo Daime sacrament” in spiritual rituals. The UDV also received an exemption to import ayahuasca (which they call “hoasca”) at this time. The UDV story in Canada crosses a few international borders on its way to exemption. A Canadian citizen, Jeffrey Bronfman, discovered the Beneficent Spiritist Center União do Vegetal during a trip to Brazil, became a mestre (ritual leader), and founded the US branch of the UDV in Santa Fe, New Mexico in 1994 (Couto, 2018). After a seizure of their ayahuasca, Bronfman filed an appeal in the US Supreme Court, which, in 2006, finally ruled that the UDV could import and distribute the tea in the US (Couto, 2018). After founding the Montréal UDV group, Bronfman was looking for regulatory support based on his experience in the US. The UDV and CdM benefited from each other’s struggles with legislative systems inexperienced in the management of requests from religious groups that use psychoactive, controlled substances as their sacrament. Both groups have established new regulatory pathways through many years of perseverance and commitment to their faith. In terms of meeting regulatory demands, the main concerns of Health Canada and the OCS are the health and safety of members and visitors and preventing diversion of the substance (Rochester, 2017). To alleviate these concerns, CdM was required to show that Santo Daime is a legitimate religion; that the sacrament is safe within this context; that cannabis is not served as a sacrament; that CdM is a non-profit in good standing; that only designated members import, transport, possess, and serve the tea, and that the supply comes from a legitimate, registered Brazilian Santo Daime church. Detailed records about the sacrament inventory and “works” (rituals) are required to be kept (CdM, personal communication, August 14, 2018). Further, international shipping and local storage, transportation, and serving must take place under guidelines established by OCS, and members and visitors must be screened for health and medication contraindications (Rochester, 2017). The CdM are quick to note that OCS staff have been respectful, professional, and a pleasure to work with, and that regulation is welcomed by the church, as: Current regulations and conditions for exemption set a high bar for demonstrating a high degree of competency of religious leaders, ethical and lawful administration on an organizational level, ecological

60  Emma Garrod and Katrina Blommaert responsibility in sourcing and preparation of the plants used to produce the Sacrament, and accountability in terms of participant safety and follow up. We believe all of these are required when striking the correct balance between respecting religious freedom and regulation. (CdM, personal communication, August 14 2018) The efforts of CdM and Montréal UDV opened the door for other Canadian Santo Daime churches- there are now six in total operating with exemptions. The Centre for Universal Illumination Luz Divina in Winnipeg is the latest to obtain the exemption, in 2020 (Browne, 2020). The others are: Ceu da Divina Luz do Montreal, the Église Santo Daime Céu do Vale de Vida in Val-David, Quebec, and the Ceu de Toronto (Browne, 2019). Each church made its own application, and the decisions made by the Health Minister balance public safety with respect of religious freedoms contained in the Canadian Charter of Rights and Freedoms (Dubey, 2020). These exemptions are granted for two years and are renewable (Rochester, 2017). The Section 56 exemptions obtained by these churches do not mean that use of ayahuasca or sacrament is legal in Canada. Even within the Santo Daime and UDV communities, each organization must apply for its own exemption. Despite receiving the legal exemption, CdM members still experience stigma, and “practitioners may face judgment from peers, employers, family members, and the general public, who may associate practice of the Santo Daime religion with illicit drug use or participation in a clandestine drug cult” (CdM, personal communication, August 14, 2018). This stigmatization as “drug-users” has been experienced by practitioners in other parts of the globe as well (Anderson et al., 2012). Indeed, for individuals whose religions use a sacrament that is criminalized, procurement is difficult and can render ayahuasca clandestine to use, expensive to procure, and stigmatizing to facilitate or participate in; “one is always acutely aware that you can be unfairly sanctioned and potentially face severe legal penalties for exercising your religious conviction and practicing the Santo Daime religion” (CdM, personal communication, August 14 2018). However, the benefits can be tremendous, including greater self-awareness and compassion, social participation in a supportive community, and strong ethical frameworks that can be applied to everyday life (CdM, personal communication, August 14, 2018). This stigma can also be experienced by those who participate in underground ceremonies in Canada; attempts to share experiences with family, friends, or healthcare practitioners can be met with dismissal. In response to this, a number of therapists are offering integration sessions for individuals seeking to make meaning from profound experiences in a setting without the cultural context of the Santo Daime churches. Political contexts play a major role in the regulation of ayahuasca globally. Intolerance of Santo Daime practices does not appear to be based on comprehensive evaluations of benefits and consequences, either for practitioners or public health (Anderson et al., 2012). In most parts of the globe,

Intersecting Cultures  61 the War on Drugs continues to wage. Canada’s drug policy has largely been prohibitionist; from 2006 until 2015, Canada was led by a Conservative federal government. When they came into power, this government introduced the National Anti-Drug Strategy (NADS) that, among other things, removed harm reduction as a pillar of the federal drug strategy. The NADS has received national and international criticism, primarily for the severe lack of evidence-based policy (DeBeck et al., 2009; Strang et al., 2012; Carter & Macpherson, 2013; Global Commission on Drug Policy, 2014). The NADS’ fiscal emphasis on enforcement has also been denounced, as enforcement alone is not effective in reducing substance use-related harms (DeBeck et al., 2009; Carter & Macpherson, 2013). Additionally, the federal government’s reliance on criminal law to deal with problematic substance use has been highly criticized for its myopic and disproportional targeting of marginalized groups (Strang et al., 2012; Bennet & Bernstein, 2013; Carter & Macpherson, 2013; Global Commission on Drug Policy, 2014). This includes mandatory minimum sentences for drug-related crimes and the criminalization of addiction (Bennet & Bernstein, 2013; Carter & Macpherson, 2013). Consequently, the NADS bolstered the War on Drugs through increased police resourcing, mandatory minimum sentencing, and the attempt to shut down evidence-based harm reduction interventions. It takes concerted effort for science to influence policy, and the interplay between various government agencies makes these attempts complex. As the CdM shared, “the Minister of Health, who might not have scientific or legal expertise, has the ultimate discretion over the issuance of any exemption under Section 56” (CdM, personal communication, August 14, 2018). They experienced that discrepancy between the 2012 decision and the exemption granting in 2017. The unpredictable nature of government policy application renders the CdM’s ability to use their sacrament tenuous, as “actions exempt today can become illegal tomorrow at a political whim” (CdM, personal communication, August 14, 2018). In 2016, the Liberal government announced the new Canadian Drugs and Substances Strategy (CDSS) to replace the NADS, officially restoring harm reduction as the fourth pillar of the federal drug strategy (Government of Canada, 2016). Harm reduction may be defined as, “secondary or tertiary prevention that seeks to lessen the harms associated with substance use without requiring abstinence” (British Columbia Ministry of Health Services, 2004, p. 26). This concept is important, as recognition of harm reduction acknowledges that substance use occurs, sometimes even in a beneficial way. A document published by the First Nations Health Authority entitled, A Path Forward: BC First Nations and Aboriginal People’s Mental Wellness and Substance Use – 10 Year Plan, represents a sharp pivot away from the perspective that all substance use is “abuse” and inherently problematic. It makes reference to the concept that, instead, substance use is on a spectrum that includes beneficial use; specifically, noting the ceremonial use of

62  Emma Garrod and Katrina Blommaert ayahuasca as falling in this category (FNHA, 2013). Further, the Canadian Drug Policy Coalition has called for the Federal government to prioritize their “work with the Santo Daime and União do Vegetal churches, as well as shamanic practitioners, to explore options for legitimizing the ceremonial uses of ayahuasca and similar plant-based psychoactive substances used for sacramental and traditional folk healing purposes” (Canadian Drug Policy Coalition, 2018, p. 1). In related Canadian drug policy developments, cannabis was legalized in October 2018 (Government of Canada, 2018). This legalization is multifaceted, and includes regulation over the production, labeling, distribution, and sale of cannabis (Government of Canada, 2018). Arguably, one might anticipate the future regulation of ayahuasca could follow a similar path, through legislation and amendments to the Controlled Drugs and Substances Act. A Canadian government document noted that cannabis legalization may set a precedent for the potential legalization of numerous plant- and fungi-based drugs that are currently illegal in Canada, including ayahuasca: There are a large number of plant- and fungi-based drugs that have been made illegal. These have been linked by analogy to cannabis, or themselves have been linked to the legal psychoactive analogues of cannabis listed above. Notable examples of such substances are coca leaf, khat, diviner’s sage, ayahuasca preparations, peyote cactus, and psilocybin containing mushrooms…it should be noted that once cannabis is legalized, arguments by analogy from substances of this type to cannabis may be made. (Lawrence, 2016, p. 11) However, there are notable differences with a plant product such as cannabis, that can be grown in Canada, and the components of ayahuasca. The work of CdM certainly provides a framework for a standardized procurement of ayahuasca, but expansion to a larger consumer group would provide new challenges. The most recent shift in psychedelic medicine policy in Canada was the introduction of MDMA and psilocybin to the Special Access Program in January 2022. This program allows physicians to apply for an exemption to prescribe psilocybin or MDMA to individual patients with conditions that are not responding to conventional therapy; these will be reviewed on a case-by-case basis (Health Canada, 2022b). Organizations have emerged to both assist individuals in applying for exemptions under the Special Access Program and to facilitate connecting individuals with practitioners who can provide psychedelic-assisted therapies. These drug policy changes have the potential to provide greater access to psychedelic medicines, which have typically had barriers to diversity and inclusion (Williams & Leins, 2016).

Intersecting Cultures  63 The Canadian federal government’s perspective on ayahuasca, and psychedelics more broadly, has gone through many iterations, but arguably is shifting toward acceptance with the advent of these policy changes and advances in clinical trials. The current political climate, new national drug strategy, and exemptions for Santo Daime churches may open the door toward a culture in which the legal or decriminalized use of ayahuasca could exist in Canada. Indeed, building on the legislative changes for cannabis, members of the current leading Canadian political party have been pushing its government to consider decriminalizing all currently illicit drugs (Kassam, 2018). Two Canadian cities have voted to decriminalize the possession of small amounts of illegal substances and have applied to the federal government for exemptions (Sasitharan, 2021). Further, the growing recognition that there is therapeutic benefit to the use of ayahuasca and other medicines in the treatment of mental health and substance use disorders, as well as chronic medical conditions, may lead to the changes required to use ayahuasca in a non-criminalized way. Certainly, there is more positive light being shone on ayahuasca and other plant-based medicines, such as ibogaine, for their potential in treating addiction, as Canada struggles to find solutions in a tragic opioid poisoning crisis. News coverage pointing to therapeutic applications of these medicines features individuals who have benefitted and are willing to come forward and tell their stories (Mullin, 2017; Little, 2018). A thorough investigation of ayahuasca would likely find that the potential for abuse is low, as “the unpredictable and sometimes unpleasant nature of the experience, including the common side effects of nausea and vomiting, are probable deterrents” (Tupper, 2011, p. 320) to casual or recreational use. To add to the safety profile, no signs of negative medical or social consequences have been found in long-term consumers of Daime tea (Anderson et al., 2012). How regulation may develop in Canada remains an open question, but some recommendations for an ethical unfolding can be posited. A regulatory process could evaluate and learn from the legalization of cannabis and develop a framework for the legalization of ayahuasca in Canada. The Canadian Drug Policy Coalition (CDPC) is working collaboratively to create a regulatory framework for all currently illegal drugs in Canada (CDPC, 2022). These frameworks have public health at their heart, and could improve access to ayahuasca and safety for participants in ceremonies. A precedent has been set with the CdM and other churches, and the government should continue to allow related groups to apply for Section 56 exemptions, and maintain this system for specialized use regardless of the broader legal status of ayahuasca in Canada. CdM would like to see a more formalized process for applications and renewals of religious exemptions; as the first case in Canada to receive an exemption for these purposes, they had to essentially invent the process (CdM, personal communication, August 14, 2018). Lastly, research on this topic ought to be conducted in a community-based manner, with indigenous voices central to the discussion

64  Emma Garrod and Katrina Blommaert and holding power (Arnstein, 1969; World Ayahuasca Conference, 2016). For now, this plant continues to inspire intrigue and generate hopes of healing for many Canadians. A policy shift around psychedelics, and plant medicines more broadly, has begun to occur and a dynamic conversation about ayahuasca use in Canada will likely remain firmly planted in the public sphere for years to come.

Acknowledgements We would like to extend gratitude to Douglas Ferguson and Rev. Dr. Jessica Rochester of Céu do Montréal for their willingness to provide information about the Céu do Montréal and their exemption process.

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Intersecting Cultures  65 Canadian Drug Policy Coalition. (2022). About. https://www.drugpolicy.ca/about/ overview/ Carter, C. I., & Macpherson, D. (2013). Getting to tomorrow: A report on Canadian drug policy. Drugpolicy.ca. https://drugpolicy.ca/wp-content/uploads/2013/01/ CDPC2013_en.pdf Carhart-Harris, R., Giribaldi, B., Watts, R., Baker-Jones, M., Murphy-Beiner, A., Murphy, R., Martell, J., Blemings, A., Erritzoe, D., & Nutt, D. J. (2021). Trial of psilocybin versus escitalopram for depression. New England Journal of Medicine, 384(15), 1402–1411. Couto, S. (2018). Two Montreal Religious Groups Can Now Legally Import Ayahuasca. Vice Magazine. https://www.vice.com/en/article/d35w5j/two-montrealreligious-groups-can-now-legally-import-ayahuasca DeBeck, K., Wood, E., Montaner, J., & Kerr, T. (2009). Canada’s new federal “National Anti-Drug Strategy”: An informal audit of reported funding allocation. International Journal of Drug Policy, 20(2), 188–191. doi:10.1016/ j.drugpo.2008.04.004 Department of Justice Canada. (2018). An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts. http://www.parl.ca/DocumentViewer/en/42-1/bill/C-45/first-reading Department of Justice Canada. (2019). Controlled Drugs and Substances Act. http://laws-lois.justice.gc.ca/eng/acts/C-38.8/index.html. Domínguez-Clavé, E., Soler, J., Elices, M., Pascual, J. C., Álvarez, E., de la Fuente Revenga, M., Friedlander, P., Feilding, A., Riba, J. (2016). Ayahuasca: Pharmacology, neuroscience and therapeutic potential. Brain Research Bulletin, 126(Pt 1), 89–101. doi: 10.1016/j.brainresbull.2016.03.002. Dubey, R. (2020) Ayahuasca exemptions: Psychedelics in Canada. Truffle Report. https://www.truffle.report/psychedelic-decriminalization-in-canada-ayahuascaexemptions/ First Nations Health Authority, BC Ministry of Health, Health Canada. (2013). A path forward: BC First Nations and Aboriginal people’s mental wellness and substance use – 10 year plan. http://www.fnha.ca/documents/fnha_mwsu. pdf First Nations Information Governance Centre. (2018). The First Nations principles of OCAP®. First Nations Information Governance Centre. https://fnigc.ca/ ocap-training/ Global Commission on Drug Policy. (2014). Taking control: Pathways to drug policies that work. http://drugpolicy.ca/wp-content/uploads/2014/09/global_ commission_EN1.pdf Government of Canada. (2016).The New Canadian Drugs and Substances Strategy. https://www.canada.ca/en/health-canada/news/2016/12/new-canadian-drugssubstances-strategy.html Government of Canada (2018). Cannabis Act, the Facts. https://www.canada.ca/ en/health-canada/news/2018/06/backgrounder-the-cannabis-act-the-facts.html Grierson, J., & Siddique, H. (2016, January 13). Canadian who killed Briton at Peru retreat says it was “kill or die.” The Guardian. https://www. theguardian.com/world/2016/jan/13/canadian-who-killed-brit-on-spiritualretreat-says-it-was-kill-or-be-killed Grob, C. S., Danforth, A. L., Chopra, G. S., Hagerty, M., McKay, C. R., Halberstadt, A. L., & Greer, G. R. (2011). Pilot study of psilocybin treatment for

66  Emma Garrod and Katrina Blommaert anxiety in patients with advanced-stage cancer. Archives of General Psychiatry, 68(1), 71–78. Health Canada. (2022a). Food and drug regulations. Justice Laws Website. http:// laws.justice.gc.ca/eng/regulations/c.r.c.,_c._870/index.html. Health Canada. (2022b). Subsection 56(1) class exemption for practitioners, agents, pharmacists, persons in charge of a hospital, hospital employees, and licensed dealers to conduct activities with psilocybin and MDMA in relation to a special access program authorization. https://www.canada.ca/en/healthcanada/services/health-concerns/controlled-substances-precursor-chemicals/ policy-regulations/policy-documents/subsection-56 -1-class-exemptionconducting-activities-psilocybin-mdma-special-access-program-authorization. html Homan, J. (2011). Charlatans, seekers, and shamans: The ayahuasca boom in western Peruvian Amazonia (Master’s thesis). University of Kansas. http:// citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.871.1546&rep=rep1& type=pdf Johnson, M. W., Garcia-Romeu, A., Cosimano, M. P., & Griffiths, R. R. (2014). Pilot study of the 5-HT2AR agonist psilocybin in the treatment of tobacco addiction. Journal of Psychopharmacology, 12(10), 983–992. Kassam, A. (2018, April 16). Canada’s Liberal party considers decriminalization of all illicit drugs. The Guardian. https://www.theguardian.com/world/2018/ apr/16/canada-liberal-party-considers-decriminalization-all-illicit-drugs Labate, B. C., & Feeney, K. (2012). Ayahuasca and the process of regulation in Brazil and internationally: Implications and challenges. International Journal of Drug Policy, 23(2), 154–161. doi:https://doi.org/10.1016/j.drugpo.2011. 06.006 Lawrence, A. (2016). Ways to consider non-medical cannabis: Reasoning from conceptual analogues. Public Safety Canada. https://www.publicsafety.gc.ca/ cnt/rsrcs/pblctns/2016-r011/index-en.aspx Leger, R. F., & Unterwald, E. M. (2021). Assessing the effects of methodological differences on outcomes in the use of psychedelics in the treatment of anxiety and depressive disorders: A systematic review and meta-analysis. Journal of Psychopharmacology, 36(1), 20–30. doi: 10.1177/02698811211044688. Levy, A. (2016). The drug of choice for the age of kale. The New Yorker. https:// www.newyorker.com/magazine/2016/09/12/the-ayahuasca-boom-in-the-u-s Little, S. (2018). Hallucinogen that heals? One BC psychotherapist’s experience with ayahuasca. Global News. https://globalnews.ca/news/4166406/ayahuascamental-health-addiction/ Maté, G. (2015, December 26). The profound power of an Amazonian plant – And the respect it demands. Globe and Mail. https://www.theglobeandmail.com/ opinion /the-profound-power-of-an-amazonian-plant-and-the-respect-itdemands/article27895775/ Maté, G. (2018). Inside the ayahuasca experience: When shamanism meets psychotherapy. PsychotherapyNetworker. https://www.psychotherapynetworker. org /magazine/article/2311/inside-the-ayahuasca-experience/00000000 0000-0000-0000-000000000000 Maybin, S., & Casserly, J. (2020, January 16). I was sexually abused by a shaman at an ayahuasca retreat. BBC News-Peru. https://www.bbc.com/news/ stories-51053580

Intersecting Cultures  67 Mitchell, J. M., Bogenschutz, M., Lilienstein, A., Harrison, C., Kleiman, S., ParkerGuilbert, K., Ot’alora G. M., Garas, W., Paleos, C., Gorman, I., Nicholas, C., Mithoefer, M., Carlin, S., Poulter, B., Mithoefer, A., Quevedo, S., Wells, G., Klaire, S. S., van der Kolk, B., … Doblin, R. (2021). MDMA-assisted therapy for severe PTSD: A randomized, double-blind, placebo-controlled phase 3 study. Nature Medicine, 27(6), 1025–1033. Monroe, R. (2017, January 18). Sexual abuse in the Amazon. The Cut, New York Magazine. https://www.thecut.com/2021/11/sexual-assault-ayahuasca-tourism. html Moreno, F. A., Wiegand, C. B., Taitano, E. K., & Delgado, P. L. (2006). Safety, tolerability, and efficacy of psilocybin in 9 patients with obsessive-compulsive disorder. The Journal of Clinical Psychiatry, 67(11), 1735–1740. Mullin, M. (2017, May 2). Opioid addicts turn to psychedelic plants to treat withdrawal, but doctors warn of risks. CBC. https://www.cbc.ca/news/health/ psychedelic-plants-opioid-addiction-1.4063676 Oak, A. (2014, February 23). Abuse of power in ceremonies that use psychoactive substances. Paper presented at the Shaman Women, Plant Medicine and Psychedelics Salon, Simon Fraser University Harbourfront Campus, Vancouver, BC, Canada, October 20, 2013. https://womensvisionarycongress.tumblr.com/ post/111903748795/abuse-of-power-in-ceremonies-that-use-psychoactive On Drugs. (2018, February 17). On drugs extra: Ayahuasca in the jungle [Podcast]. On Drugs, CBC Radio. https://www.cbc.ca/listen/cbc-podcasts/157-on-drugs/ episode/15521297-on-drugs-extra-ayahuasca-in-the-jungle Posner, M. (2011, November 9). B.C. doctor agrees to stop using Amazonian plant to treat addictions. The Globe and Mail. https://www.theglobeandmail.com/life/healthand-fitness/bc-doctor-agrees-to-stop-using-amazonian-plant-to-treat-addictions/ article4250579/ Proctor, J. (2018, April 26). Peruvian lynching death underscores risk of journeys into the jungle – And the mind. CBC News. https://www.cbc.ca/news/canada/ british-columbia/peru-lynching-ayahuasca-tourism-danger-1.4635119 Rochester, J. (2012). Update in legal status in Santo Daime Canada: Health Canada refuses to grant permission for importation of Daime. Bialabate.net. https:// www.bialabate.net/news/update-in-legal-status-in-santo-daime-canada-healthcanada-refuses-to-grant-permission-for-importation-of-daime Rochester, J. (2017, July 17). How our Santo Daime church received religious exemption to use ayahuasca in Canada. Chacruna.net. http://chacruna.net/ how-ayahuasca-church-received-religious-exemption-canada/ Romeo, B., Karila, L., Martelli, C., & Benyamina, A. (2020). Efficacy of psychedelic treatments on depressive symptoms: A meta-analysis. Journal of Psychopharmacology, 34(10), 1079–1085. Sasitharan, K. (2021). Toronto Board of Health votes to decriminalize possession of small amounts of illegal drugs. CBC News. https://www.cbc.ca/news/ canada/toronto/toronto-board-of-health-votes-yes-process-decriminalizationsmall-drug-posession-illegal-1.6275501#:~:text=CBC%20News%20Loaded-, Toronto%20Board%20of%20Health%20votes%20to%20decriminalize%20 possession%20of%20small,the%20worsening%20opioid%20overdose%20crisis. Strang, J., Babor, T., Caulkins, J., Fishcher, B., Foxcroft, D., & Humphreys, K. (2012). Drug policy and the public good: Evidence for effective interventions. Lancet, 379(9810), 71–83. https://doi.org/10.1016/S0140-6736(11)61674-7

68  Emma Garrod and Katrina Blommaert Thomas, G., Lucas, P., Capler, R., Tupper, K., & Martin, G. (2013). Ayahuascaassisted therapy for addiction: Results from a preliminary observational study in Canada. Current Drug Abuse Reviews, 6(1), 1–13. Tupper, K. W. (2006). The globalization of ayahuasca: Harm reduction or benefit maximization? International Journal of Drug Policy, 19(4), 297–303. Tupper, K. W. (2009). Ayahuasca healing beyond the Amazon: The globalization of a traditional Indigenous entheogenic practice. Global Networks, 9(1), 117–136. doi:10.1111/j.1471-0374.2009.00245.x Tupper, K. W. (2011). Ayahuasca in Canada: Cultural phenomenon and policy issue. In B.C. Labate & H. Jungaberle (Eds.), The internationalization of ayahuasca (pp. 319–325). Lit Verlag. Williams, M., & Leins, C. (2016). Race-based trauma: The challenge and promise of MDMA-assisted psychotherapy. MAPS Bulletin, 26(1). https://maps.org/ news/bulletin/race-based-trauma-the-challenge-and-promise-of-mdma-assistedpsychotherapy/ World Ayahuasca Conference. (2016). Open letter from the Indigenous people of Acre, Brazil. Chacruna.net. https://chacruna.net/letter-indigenous-people-acre/ Yazar-Klosinski, B. B., & Mithoefer, M. C. (2017). Potential psychiatric uses for MDMA. Clinical Pharmacology & Therapeutics, 101(2), 194–196. doi:10.1002/ cpt.565

4 Regulating Ayahuasca in the United Kingdom Proactive Approaches Charlotte Walsh

This chapter looks at contrasting proactive approaches that may be taken in the quest to successfully integrate ayahuasca into society in the United Kingdom (UK). One way is to apply for a license to use this otherwise prohibited substance. On this point, legal analysis is offered of the recent refusal by the (then) Secretary of State for the Home Office—and subsequent applications to have this decision reviewed—to allow an ayahuascausing church, the Beneficent Spiritist Center União do Vegetal (UDV), to be granted a license to import, supply, and possess its sacrament. An alternative approach is for ayahuasca providers currently working illegally to self-regulate, ensuring that they are holding themselves to high standards of conduct, perhaps through the formation of an association with accompanying codes of practice. This can be conceived of as a good in and of itself, as potentially mitigating sentences in the event of prosecution, along with establishing some consensus as regards what regulation might look like in (perhaps optimistic) anticipation of the legalization of ayahuasca. On this latter point, were prohibition of this plant medicine to end, what will replace it will potentially range from strict governmental legal regulation, possibly of a medical nature, through to the model recommended here, of practitioner-generated best practice guidelines, voluntarily ascribed to: If this is the aspiration, it seems prudent to have such codes in place in advance. What is being proposed is a new paradigm for the regulation of ayahuasca, separate from either the strictures of criminalization under which it is currently subsumed, the medical model it could potentially be transitioned into, or, indeed, any other form of stringent, compulsory regulation: The uniqueness of the brew itself, of ayahuasca providers, and of the sacramental and ceremonial settings in which it is typically ingested, demands a distinctive approach.

Seeking License Since the criminal case of R v Aziz (2012), ayahuasca has been treated by the UK authorities as a preparation containing N,N-dimethyltryptamine (DMT), thereby falling under the auspices of the main piece of prohibitive

DOI: 10.4324/9780429001161-5

69

70  Charlotte Walsh drug legislation of this country, the Misuse of Drugs Act 1971 (MDA). While this interpretation of the law is highly questionable—and has, indeed, been questioned (Walsh, 2017)—that is not the focus here; rather, the predominant attempt to move forward in spite of this adverse decision. The UDV—an ayahuasca-using church with roots in Brazil and congregations around the world—applied to the Home Secretary for a license to import, supply, and possess ayahuasca, the granting of which would exempt them from prohibition, as per section 7 of the MDA. This application was refused by Amber Rudd, Home Secretary at the time, in November 2016, leading to the UDV seeking permission for judicial review of this decision (Beneficent Spiritist Center União do Vegetal v Secretary of State for the Home Department, 2017). Judicial review is a mechanism by which the judiciary reviews the lawfulness of the way in which a determination has been made by executive or legislative authority—in this case the former— focusing on the legitimacy of the process that was followed, rather than the substantive outcome (Southey et al., 2017). The UDV’s request for judicial review was unsuccessful, with Sir Ross Cranston—sitting as a judge of the High Court that was ruling on this—approving the approach taken by the Home Secretary. The rationale, both of this decision and of the one that preceded it, will now be considered in depth, subjecting them to critical analysis. Both Sir Ross Cranston and Amber Rudd before him placed heavy reliance on the advice given by the Advisory Council on the Misuse of Drugs (ACMD) in reaching their conclusions; this quasi-independent body makes recommendations to the government on the control of what are perceived to be dangerous or otherwise harmful drugs. The ACMD’s primary concern was that “there is a general paucity of evidence and there have been no controlled clinical studies to establish the safety of hoasca” (as quoted in Beneficent Spiritist Center União do Vegetal v Secretary of State for the Home Department, 2017, para. 4). (Note, ayahuasca is here being referred to as “hoasca,” as the preferred term of the UDV for their sacrament.) This claim can be contested. A recently published report that provides an invaluable overview of the scientific research on ayahuasca—which is not insubstantial—concludes on this point that: “Regarding the effects of ayahuasca in the organism, studies performed with volunteers both in the laboratory and in natural contexts show that ayahuasca is physiologically safe” (International Center for Ethnobotanical Education Research and Service [ICEERS], 2017, p. 7). The ACMD also expressed their unease regarding a lack of standardization of ayahuasca: “Unless each batch is tested there is the potential for variability in concentration and strength… It is therefore not possible for the Council to give a view on what could constitute a ‘safe dose’” (as quoted in Beneficent Spiritist Center União do Vegetal v Secretary of State for the Home Department, 2017, para. 4). There is certainly some veracity to this claim as regards a lack of consistency in the makeup of

Regulating Ayahuasca in the United Kingdom: Proactive Approaches  71 the brew, with this point segueing into a deeper issue that will be developed throughout this piece: namely, the essential lack of compatibility of ayahuasca with the fundamental principles of Western medicine that are being deferred to here, albeit in a religious context, such as standardization of dosage. Indeed, the very idea of uniformity is anathema to the approach adopted in concocting ayahuasca, where the preparation of the brew is considered to be an essential part of the healing art in and of itself: “Based on the intended use… Amazonian groups or healers … add different plants to the decoction with the objective of communicating with a specific spirit, depending on the disease to be healed or ritual to be performed” (ICEERS, 2017, p. 2). In terms of dosage, it is part of the role of whoever is serving the medicine to determine, with the help of the plant spirits, how much an individual might need on their spiritual quest. As is readily apparent, these issues embody an even more profound conflict between materialistic and spiritual paradigms that will not be resolved by attempting to force the round peg of the latter into the square hole of the former. A final apprehension voiced by the ACMD in relation to ayahuasca was that “its use may not be without risk of harm potentially associated with states of altered consciousness that could be induced by the tea, for example, suggestibility” (as quoted in Beneficent Spiritist Center União do Vegetal v Secretary of State for the Home Department, 2017, para. 4). The fear of the cult appears to lurk close to the surface here, and, indeed, the difference between a cult and a religion is often a matter of perspective, of whether one stands inside or outside of the group in question (Hall, 2011). The presence of a psychoactive substance predictably intensifies such concerns, and the British tabloid media has often portrayed ayahuasca-using churches in extremely negative terms in scaremongering articles, such as the one carrying the headline “Suicides, sects, murder and insanity: The disturbing truth about the trendy ‘spiritual’ hallucinogenic brew being taken by gap year backpackers in the Amazon (and even in British sitting rooms),” with the copy within liberally peppered with references to cults (Roper, 2015). However, to disallow the UDV their sacrament on the basis of this unsubstantiated worry—not borne out by the research into ritual use of ayahuasca (ICEERS, 2017)—seems unduly paternalistic, and an unwarranted suppression of religious freedom. Accordingly, the UDV were challenging the Home Secretary’s refusal for a license on the basis that this breached their human rights; specifically, the right enshrined within Article 9 of the European Convention on Human Rights (ECHR)—to which the UK is a signatory—to freedom of religion, including the right to “manifest his religion or belief, in worship, teaching, practice and observance.” The UDV contended that it is a religion and that drinking ayahuasca in worship is a manifestation of its members’ religious beliefs, and, indeed, there was no dispute from either the Home Secretary or the High Court on these points. However, the protections ostensibly

72  Charlotte Walsh offered by Article 9 are not absolute, but rather, are subject to the qualifiers contained within Article 9(2), such that: Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. Any incursion into a protected right needs to be proportionate to the perceived threat posed. Where the views of the parties diverged was as regards whether Article 9(2) was engaged, and, further, if the refusal to thereby disallow the UDV to use ayahuasca was a necessary and proportionate response. The UDV argued against this interpretation, particularly given the stringent conditions they would be consuming ayahuasca under: namely, within the parameters of a ritual of worship, with the state being able to oversee how much of the brew is being imported into the country, and with the amount of ayahuasca, along with who is drinking it, carefully logged, as is the case in other jurisdictions where such practices have been legitimized, such as, for instance, various states in the US (Feeney et al., 2018). The reasons given by the Home Secretary for coming to the opposite conclusion were twofold and will be analyzed, in turn. First, with relevance to Article 9(2), she asserted that there is a strong public interest in preventing the consumption of Class A drugs on public safety and health grounds, citing the aforementioned (mis)perceived paucity of evidence regarding safety and the impact on health of ayahuasca. There is a clash of narratives at play here, with the UDV venerating ayahuasca as their holy sacrament, and the Home Secretary denigrating it as a Class A drug, reducing a complex ceremony down to the psychoactive component of the brew consumed within it (Sanchez & Bouso, 2016). This, again, is emblematic of a spiritual and a materialistic paradigm talking past one another. The UDV contested the idea that the public interest was threatened, given the highly circumscribed and controlled exemption from prohibition being proposed, conjunct with the fact that drinking ayahuasca—for many reasons, not least, its unpleasant taste and challenging effects—is unlikely ever to be anything other than a minority pursuit. They argued that the Home Secretary had failed to substantiate why it was necessary to refuse them a license in the interests of public health and safety: No evidence had been produced demonstrating a high risk of either short- or long-term health risks to ayahuasca drinkers; unsurprisingly, because it does not exist. Indeed, to the contrary, all available research points to ayahuasca typically bringing benefits, in terms of physical, mental, and spiritual wellbeing (ICEERS, 2017, p. 6). More particularly, members of the UDV had testified to these positive effects in their own lives. This case can be seen as an exemplar of a perennial problem

Regulating Ayahuasca in the United Kingdom: Proactive Approaches  73 with the application of human rights provisions in practice: namely, that incursions into them are often declared as justified through reference to the qualifiers, in the absence of hard evidence being proffered in support of such claims (Marshall, 2009). This renders these decisions political and leaves stigmatized groups, such as “drug” takers, vulnerable to their ostensible freedoms not being worth the paper they are written on. Secondly, the Home Secretary expressed concern that, if the government allowed an exemption for the UDV from the MDA on the grounds of religious freedom, they would be at risk of breaching their international obligations under the global system of drug prohibition; in particular, their commitment as signatory to the UN Convention on Psychotropic Substances 1971 to prohibit activities involving the substances scheduled within it. From a legal standpoint, this is a highly spurious argument, for a number of reasons. First and foremost, neither ayahuasca nor the plants it is constituted from are listed under the 1971 Convention; further, the official commentary on the Convention clarifies that plants do not fall within its auspices by virtue of naturally containing a psychoactive component that is itself listed, in this instance, DMT (United Nations, 1977). In addition, the International Narcotics Control Board (INCB), the body responsible for overseeing implementation of the international drug conventions, has clearly communicated that ayahuasca does not fall under this regime: Many plants that contain psychoactive substances with stimulating or hallucinogenic properties, as well as preparations made from those plants, have traditional uses in some countries or regions; for example, some are used in religious rites … Although some active stimulant or hallucinogenic ingredients contained in certain plants are controlled under the 1971 Convention, no plants are currently controlled under that Convention or under the 1988 Convention. Preparations (e.g., decoctions for oral use) made from plants containing those active ingredients are also not under international control. Examples of such plants or plant material include… ayahuasca. (INCB, 2010, paras. 284–285) Even were the reverse the case, the international system allows for constitutional exemptions from its prohibitions by virtue of Article 36(2) of the Single Convention on Narcotic Drugs 1961, including for protection of religious freedom, and, even absent this fact, the UK has the aforementioned superseding obligations under the ECHR to protect such. Beyond this, section 7 of the MDA allows for the licensing of exemptions. The fact that some other signatory nations—along with states within the US, the main instigator and supporter of prohibition—have given exemptions to ayahuasca-using churches without viewing the Conventions as constraining this, and absent, consequently, drawing approbation from the INCB, is further proof, if any were needed, that this is a non-argument (Gonzales v. O

74  Charlotte Walsh Centro Espirita Beneficente União do Vegetal (2006) 546 US 418; Labate & Cavnar, 2014b). Depressingly, this is not an instance where a decision is scrutinized and, in retrospect, all the arguments in rebuttal the claimants could have put forward, yet did not, are listed; rather, these counter-points were raised at the time, but inadequately engaged with. In refusing leave for a full judicial review, Sir Ross Cranston did not criticize the Home Secretary’s process or reasoning, referring, rather, to such vagaries as the broad margin of appreciation in making such decisions, conjunct with the fact that the approach in the UK is in line with other Council of Europe states. The presiding judge was of the view that, while there was no evidence that ayahuasca was harmful, it had also not been proven to be safe, so the Home Secretary was justified in adopting a cautious approach. The distinction between these two things seems more a matter of semantics than substance; furthermore, it inappropriately shifts the burden of proof on to the UDV to prove the safety of ayahuasca, whereas it should be on the state to prove its harmfulness, in order for them to legitimately engage Article 9(2) in the context of interfering with this group’s religious freedom through prohibition of their sacrament. Similarly, the Home Secretary’s concern in relation to potential breach of the 1971 Convention was deemed “not legally irrelevant” by the High Court (Beneficent Spiritist Center União do Vegetal v Secretary of State for the Home Department, 2017, para. 19), although the stated reasons as to why this argument fails—most resoundingly, the fact that ayahuasca is not listed within this Convention!—were not convincingly engaged with. The fact of the law as a highly politicized instrument, rather than as a tool for principled decision making, rooted in human rights and the best available evidence, could not be more apparent. While this refusal to grant a license to the UDV is disappointing, even had one been given, it is submitted that this would not have gone far enough, covering, as it would, only that specific church. There is a need to move beyond minor, incremental reforms—what has been termed the “metamorphosis of prohibition” (Taylor et al., 2016, p. 452)—with exemptions from the system arguably paradoxically shoring it up, confirming its overall legitimacy. In truth, what is needed is the end of drug prohibition, not simply dispensations from it on religious, or any other, grounds. This claim has been made in full numerous times before by the current author (Walsh, 2014), drawing from the principles of classical liberalism, conjunct with a human rights-informed perspective, and these arguments will not be rehearsed again here. Suffice it to say that, from a liberal standpoint, the criminal law should only be used to curtail activities that cause harm to others (Mill, 1869). Drug prohibition is thus fundamentally illiberal and, furthermore, breaches human rights, such as the rights to privacy, to manifest one’s religion, to freedom of thought; The state has over-stepped its legitimate boundaries and should retreat. These issues are sharpened in the context of a substance such as ayahuasca, where even the notion of it

Regulating Ayahuasca in the United Kingdom: Proactive Approaches  75 being a drug is vehemently contested. The remainder of this chapter is concerned with the question of what should replace prohibition, specifically, with regard to ayahuasca.

Beyond Prohibition Ayahuasca is typically ingested in a ceremonial (religious or otherwise) or therapeutic context (Labate et al., 2017). Should prohibition end, will all the underground shamans and healers simply be able to emerge blinking into the light of legality, continuing with their work as before, minus the looming threat of criminalization? While this will depend on the system of regulation that is implemented to replace prohibition, it is perhaps somewhat optimistic. If ayahuasca is being used for healing, for instance, there is a strong possibility that, even if the criminal prohibitions are removed, its distribution will become subject to stringent medical regulations; the UK is not a society where just anyone can give out “unproven,” not to mention powerfully psychoactive, substances and, indeed, there is legislation in place to prevent just such occurrences in the form of the Medicines Act 1968. Taking a comparative approach, it is largely out of acknowledgment of this hard reality that, in the US, the Multidisciplinary Association for Psychedelic Studies (MAPS) is investing so much time and money in their attempt to have psychedelics recognized as approved medicines, rather than simply campaigning for the end of prohibition (MAPS, n.d.). While their work is invaluable, it is suggested that, if at all possible, developing an approach distinct from the medical model in the UK in relation to ayahuasca would be highly desirable for multiple reasons, both pragmatic and ideological. Although ayahuasca is often referred to as a plant medicine, it is not a medicine in the sense in which that term is typically understood in the West; It is perhaps best understood as healing for the soul, and thus does not fit easily into a largely secular society such as the UK, where the very idea of the soul has been largely dispensed with (Labate & Cavnar, 2014c). Although the former are commonly derived from the latter, pharmaceuticals are prioritized over plants in Western medicine; perhaps, because they are seen to be more predictable, more controllable, to have lost that element of the wild that plants bring with them. Paradoxically, it may be this very wildness that helps with plant medicine healing, with some cosmologies attributing this to the intervention of the plant spirits, a dimension that is markedly absent from synthetic medications (Doyle, 2011). By way of analogy, the situation has existed in the UK for a number of years whereby use of cannabis in its natural form leaves one subject to criminal prosecution under the MDA, whereas ingestion of Sativex, a botanical drug extracted from cannabis and administered as an oral spray, is permitted, so long as it has been prescribed by a doctor (GW Pharmaceuticals, 2021). It is perhaps not irrelevant that, unlike pharmaceuticals, plants can be freely grown and

76  Charlotte Walsh are not generally patentable (Houses of Parliament, 2016). Beyond safety, this is about power and money; the power of the establishment, in whichever of its guises, to decide when, and indeed if, a substance can be ingested, and the power of corporations to profit from that. Of significance is the fact that ayahuasca cannot feasibly be turned into a pill to be dispensed by a medical doctor; augmenting biochemical barriers to this, its effect is inseparable from the context in which it is taken, shamanic, therapeutic, or otherwise. The magic of ceremony is about the ayahuasca, but it is also about so much more: the intention of the individual in drinking, the relationship between them and the shaman/healer, the sense of community with others in the circle, the music, and so forth. To reiterate and reinforce an earlier point, neither the natural nor the supernatural dimensions of people’s ayahuasca experiences can be ignored, with those who drink this brew typically perceiving themselves to be in relationship not just with the plants, but with plant spirits; shamanic healing cannot be forced into the same box as Western biomedicine, as there are entirely different cosmologies at play here (Labate & Cavnar, 2018). What is more, the temptation to try to gain credence by attempting to force it into the incumbent medical model is not only untenable, but also, it is submitted, misguided; for all its undeniably amazing achievements, Western medicine has not been terribly successful when it comes to dealing with psychological issues, as evidenced by the current crisis of epic proportions in mental health (Hari, 2018), and remains largely unconcerned with spiritual ones. An altogether different approach is therefore drastically needed. This new direction might be embodied in a system of regulation of ayahuasca distinct from either criminal prohibition or the medical model. Regulation comprises a spectrum: from strict, compulsory, governmental regulation, through to light-touch self-regulation, voluntarily ascribed to; it is the latter that is being advocated for here. It is important to emphasize that what change looks like will be strongly influenced by how the case for such change is made. So, for instance, the most prominent drug policy reform activism group in the UK, Transform, explicitly call in strict governmental regulation as part of their bid to end prohibition (Transform, 2009). While there is a certain pragmatism to such an approach, with it being viewed as proffering the most realistic pathway to reform, it is important to be careful what one wishes for; many of the current ayahuasca shamans operating in the underground may be frozen out by such a system if its requirements are, for instance, prohibitively expensive or exceptionally tricky to comply with. Analogously, this has increasingly been seen in those states in the US with newly legalized recreational cannabis markets, where Big Pot is fast displacing those small farmers with a longstanding ideological commitment to the plant, and this commercial model is increasingly drawing criticism (Caulkins, 2017). One of the few papers to discuss this issue of what a post-prohibition regulatory system might look like, with a focus on psychedelics in general

Regulating Ayahuasca in the United Kingdom: Proactive Approaches  77 rather than simply ayahuasca, is the interesting contribution by Haden and others, which considers many of the issues that will need to be addressed, proposing a public-health-based model (Haden et al., 2016). While the authors are as much concerned with raising salient questions as with giving definitive answers, one of the suggestions made is for a Psychoactive Substance Commission to be established that would oversee any new system of regulation; there is also the recommendation that a College of Psychedelic Supervisors might be created, with responsibility for such things as training and licensing (p. 246). The authors acknowledge that there are many different styles of psychedelic provision and ingestion, and that, therefore, trainings will need to be diverse; however, some level of standardization is anticipated in terms of issues such as screening, consent, health, and safety, and so forth. There would also likely be restrictions on how much of a substance can be taken and, perhaps, where this can take place. Delving into just a selection of these issues in relation to the future regulation of ayahuasca will demonstrate the complexities inherent in devising any such system. For instance, if providers will require a license, this leads on to important questions, such as: Who will be in charge of the licensing system? What will it entail? And, crucially, what will happen to shamans practicing without a license? Traditionally, shamanistic training in the Amazon is bound up with what is often conceived of as a divine calling, with strong lineages and lengthy apprenticeships, all of which is a far cry from completing a certificate course in shamanism (Labate & Cavnar, 2014a). Further, many of those who hold ceremony in the UK are visiting, often indigenous, shamans, and how they would fit into any regulatory system is something that will need to be resolved; suffice it to say that any model that excludes the originators of this work due to a different, Western, conception as regards what constitutes training and legitimacy would be unacceptable. Issues of power and authority are palpable here, as they also are in terms of participants when it comes to questions such as, who will be screened out and who will decide this. To illustrate the sensitivity of such matters, from a Western perspective, it might seem uncontroversial to assume that pregnant women and children will be prohibited from drinking ayahuasca; however, this is certainly not the case in either indigenous ceremonies or the syncretic churches that have emerged from them, who have used them without evidence of deleterious effects (Labate, 2011). As another potentially highly contentious example, there is the question of whether those with mental health problems will be excluded from participating. While informal screening practices vary, ayahuasca ceremonies and healing sessions, almost by definition, tend to involve those with issues in this realm, to greater or lesser degrees, if only by virtue of the fact that they are attended by humans. Scientific research can (partially) help with answering such questions on an empirical rather than an ideological basis, with the risk of the situation varying, depending upon the condition in question. For instance, “data suggest that ayahuasca is, in principle, contraindicated

78  Charlotte Walsh for people with grave psychiatric disorders, particularly those individuals prone to psychosis” (ICEERS, 2017, p. 7). However, there are those whose subjective experience has led them to believe that ayahuasca has therapeutic potential for people with bipolar disorder (Mudge, 2017). So, even here, there are no easy answers. Beyond the detail of what regulation might look like, there are the bigger questions, such as: How much regulation is desirable, whether or not this should come from above or below, and whether or not compliance should be compulsory or voluntary. An obligatory, heavily regulated, state-run system will simply create an attenuated version of the current prohibitory model, with its costs falling disproportionately upon those with less resources. Again, an analogy can be drawn with developments in relation to cannabis in the US, where corporate players are making huge amounts of money post its legalization in certain states, while predominantly young, predominantly Black suppliers who fall outside the new regime are still being prosecuted: We must ask ourselves: What would it mean if we end up in a world where psychedelics are legally accessible for a privileged few, while communities who have historically suffered the worst harms of prohibition remain criminalized? For social change to be truly transformational, mustn’t it lift up those who are the least privileged among us? (Davies, 2017, pp. 38–39) Relatedly, just as prohibitionist drug policy breaches human rights, so, too, would an overly strict system of regulation. It is important to recognize that there is always a trade-off; the more stringent any regulatory system, the greater the likelihood that underground practices will continue to include those—both practitioner and participant—who have been excluded. In the context of the ayahuasca community, this is not necessarily a bad thing; this world is a long way from the typical criminal black market in drugs, and it is argued here that it is actually desirable that it continue in a close approximation of its current forms, rather than trying too hard to replicate a failing system. With this in mind, perhaps the best approach would be one of decriminalization rather than legalization or regulation, accompanied by the rise of practitioner groups, drawing up their own good practice guidelines that could then be voluntarily ascribed to a bottom-up, rather than a top-down model, shaped by those with experience. While it would undeniably be a sea-change in policy to allow self-regulation of activities involving powerful psychoactive substances, especially in the context of a country such as the UK with a blanket ban on such (Psychoactive Substances Act, 2016), those currently working (illegally) with ayahuasca already, of necessity, self-regulate, albeit in a disparate way. More collaborative models of self-regulation exist and are in the process of being developed yet further. For instance, ICEERS is an example of a

Regulating Ayahuasca in the United Kingdom: Proactive Approaches  79 collective that is laying the foundations for a future of self-regulation in the realm of plant medicines, focusing on protecting plant medicine practices, studying and promoting public policy based on scientific evidence and human rights, and working creatively toward integrating plant medicines as therapeutic tools in contemporary society (ICEERS, 2017). Such initiatives are grounded in a recognition that it is important that plant medicine practitioners hold themselves to high standards of conduct, perhaps enshrined within codes of good practice. These will have the advantage of having been built from the ground up and, even if state-acknowledged self-regulation does not materialize, such protocols might at the very least feed into whatever system is imposed from above, rendering it more participatory. History suggests that change will most likely come incrementally, driven from below, with informal best practices emerging from grassroots movements that are then, perhaps, formalized in some way. Indeed, this is the route that some of the most notable successes in drug policy, more generally, have traveled in recent years: Think of the underground use—then above-ground acceptance of—medical marijuana in the US (Bostwick, 2012); of the cannabis clubs in Spain, sprouting up at local level through the loopholes in the law, now moving toward being formalized, on the basis of which phenomenon it has been suggested that it is, perhaps, “better to ask forgiveness than permission” (Sanchez & Collins, 2018). These developments serve as crucial reminders of the power of the underground, of the fact that there is no need to wait for authorization from above to effect transformation from below. None of this is to suggest that it will be easy for ayahuasca providers to self-regulate. There are many and varied ways of serving the brew, and strongly held and often conflicting opinions, on contentious subjects such as, for instance, the mixing of ayahuasca with other plant medicines: Any codes that are devised would need to have a fluidity and a non-specificity to them that allowed for contrasting worldviews by being pared down to first principles. Helpfully, ayahuasca has been drunk for a long time, meaning that there is an accumulated wisdom that can feed into any future system of self-regulation, drawing both from domestic practitioners, and beyond: “The cultural regulation of psychedelics in nonprohibition contexts has a rich anthropological history from which to draw lessons. Many indigenous societies have traditionally integrated the use of psychedelic preparations using time-tested ceremonial safeguards to minimize adverse effects” (Haden et al., 2016, p. 245). There is also an ugly legacy of Western imperialists violently repressing such cultures that needs to be acknowledged, with every effort made to avoid these societies being exploited yet further, ensuring that the global South benefit, rather than suffer, from the upsurge of interest in ayahuasca in the Global North. Further, it is of the utmost importance to protect the plants that constitute ayahuasca, and the ecosystems in which they

80  Charlotte Walsh grow: Sustainability issues are best addressed by working with local people in the places where these plants are sourced (Moran, 2017). Beyond indigenous usage of plant medicines, countries such as Peru, where ayahuasca is legal, also have a more recent history of ayahuasca retreats from which much can be learned about good (and bad) practices (Labate & Cavnar, 2018). In advocating for self-regulation, promotion of the benefits of ayahuasca may be propitious, and, again, there is much that can be learned from indigenous cultures here, where “virtually all… uses of psychedelics throughout the centuries have been pro-social and linked with spirituality, healing, and honoring seasonal and life transitions in the context of cohesive community” (Haden et al., 2016, p. 245). Emerging modern scientific research is also supportive of this positive narrative, with, to offer just a few examples, emerging evidence that ayahuasca can help with addiction issues (Bouso & Riba, 2014) and with previously treatment-resistant depression (Palhano-Fontes et al., 2018). More broadly, research supports the potential of psychedelics in general for the enhancement of wellbeing, even in healthy individuals (Elsey, 2017). Neuroscientists studying these substances have postulated that they can help promote connectedness, rendering them supremely important if one concurs with the view that the converse is at the root of the major crises the human species is currently facing, whereby many people are disconnected: from themselves, leading to depression; from others, resulting in violence; and from the environment, a factor that is bound up with the ongoing ecological cataclysm (Carhart-Harris et al., 2018). However, while demonstrating benefit might prove pragmatically useful, it is important not to lose sight of the fact that it should not be necessary to justify a personal choice as regards what to ingest; just as there is no need to show that it is beneficial to drink alcohol, nor overly onerous legal requirements in place as to when, where, and by whom it can be drunk, neither should this be the case for ayahuasca. Nonetheless, it will become increasingly important for providers to think about how they are presenting themselves and their activities to the outside world, if and when the time comes to engage with it. In calling attention to benefits, framing is significant; for instance, it is probably wise to present these plants as tools that can help with self-realization, rather than as medicines, to thereby stand a better chance of avoiding both the stringencies of medical regulation and allegations of quackery. Relatedly, practitioners must be scrupulous in terms of the claims that they are making, avoiding scientifically unproven assertions. It is important to remember that, even in the lightest touch system of self-regulation imaginable, some minimal form of state regulation will still be in place. So, for instance, products will need to be what they claim to be, providers will owe a duty of care to their clients. These are not merely moral issues but, rightly, legal realities; people who don’t want their participation in the psychedelic market to be regulated are out of luck, because all goods in commerce are

Regulating Ayahuasca in the United Kingdom: Proactive Approaches  81 regulated in some way. Even when people are not being regulated directly by government agencies, they can be “regulated” in private lawsuits. Those claims are presented to and decided by the court system, which is the state. (Potter, 2018) As an important aside, in thinking about regulation and the inevitable resistance to it, in whatever guise it emerges, it is worth acknowledging that there will be people of great integrity who do not want any form of regulation, believing it will upset the alchemy of the transformational processes they are engaged in, and there will be those who will object to such regulation when it is arguable that they might benefit from more rigorous oversight of some kind. Indeed, a big question for any collective of practitioners is how to deal with the rogues that inevitably emerge in every field and are perhaps especially dangerous in a setting where they are giving powerful psychoactive materials to often vulnerable individuals. Where these individuals breach the law, in terms of sexual assault, for instance, there are criminal prohibitions in place to deal with this; where the breach is more in the moral realm, such as not abiding by an agreed upon code of ethics, there will be the option of the wider group first engaging with the individual in question—maybe following the principles of a progressive model of restorative justice—and, perhaps ultimately, excluding them if they remain non-compliant. Under the recommended voluntary system, this would not stop these providers from holding ceremony should participants still choose to drink with them, but would operate rather as a stamp of approval, helping that decision to be a more informed one, where those involved are more cognizant of the risks. And, of course, individuals may choose to drink ayahuasca alone, or informally with friends, which may, perhaps, be inadvisable, but should not be prosecutable. To put it another way, attempts can be made to provide an appropriate container in which to drink ayahuasca; but, should either practitioners or participants choose to step outside that container, that should not invite criminalization, unless, of course, it involves otherwise criminal acts. Risk is inherent in life, and there has to be a point at which personal responsibility comes into play in order to ensure freedom (Greene, 2016).

Concluding Thoughts This chapter has considered two very different proactive approaches whereby ayahuasca might be regulated. The first is through provision of a license from the Home Office, leading to an exemption from the prohibitive drug laws. This strategy was attempted unsuccessfully by the UDV and an analysis of the given reasoning behind why their application failed proved disheartening. While, it is submitted, the human rights protections embodied in the ECHR, if read as intended, should protect such religious

82  Charlotte Walsh ceremonies, this has not happened in practice. The mistake, perhaps, is in believing that the law is applied in an impartial and rational way, rooted in scientific evidence and a true respect for human rights, whereas the reality is that its interpretation is deeply political. It is worth remembering that what is being played out here is simply the latest chapter in an age-old story, whereby power is used to suppress the ingestion of plants by those who believe that this allows direct communion with spirit (Forte, 2012). The second approach considered is self-regulation by ayahuasca practitioners, recognizing that this already takes place, albeit unofficially. The possibilities for increased collaboration have been discussed, with full acknowledgement of the complexities of such, with a view to a more formalized voluntary self-regulation perhaps becoming an adjunct to decriminalization in the future. This has been asserted to be preferable to the end of prohibition ushering in the beginning of strict governmental regulation, whether medical or otherwise, premised on this author’s fundamental belief that the state should play no role in determining what substances an individual chooses to ingest, thereby respecting human rights, such as to privacy, to religion, and to freedom of thought. The position taken here is unapologetically optimistic, even ideological; to have hope is both radical and vital (Solnit, 2016). What is needed is a clear vision of what self-regulated best practice with ayahuasca might look like, and to live fearlessly into that.

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Regulating Ayahuasca in the United Kingdom: Proactive Approaches  83 Elsey, J. (2017). Psychedelic drug use in healthy individuals: A review of benefits, costs, and implications for drug policy. Drug Science: Policy and Law, 3, 1–11. https://journals.sagepub.com/doi/10.1177/2050324517723232 Feeney, K., Labate, B. C., & Hudson, J. (2018). Bubbling with controversy: Legal challenges for ceremonial ayahuasca circles in the United States. In B. C. Labate & C. Cavnar (Eds.), Plant medicines, healing and psychedelic science: Cultural perspectives (pp. 87–111). Springer. Forte, R. (Ed.). (2012). Entheogens and the future of religion. Park Street Press. Gonzales v. O Centro Espirita Beneficente União do Vegetal. (2006). 546 US 418. Greene, B. (2016). Envisioning a sensible psychedelic drug policy. Psymposia.com. https://www.psymposia.com /magazine/envisioning-a-sensible-psychedelic-drug-policy/ GW Pharmaceuticals. (2021). Committed to making a difference. [Homepage]. https://www.gwpharm.com Haden, M., Emerson, B., & Tupper, K. (2016). A public health based vision for the management and regulation of psychedelics. Journal of Psychoactive Drugs, 48(4), 243–252. https://pubmed.ncbi.nlm.nih.gov/27430375/ Hall, H. (2011). “Cult” or religion? Teaching Theology & Religion, 14(4), 355–356. Hari, J. (2018). Lost connections: Uncovering the real causes of depression – And the unexpected solutions. Bloomsbury Publishing. Houses of Parliament. (2016). Intellectual property and plants. http://www.ifst.org/ sites/default/files/PostNote%20Intellectual%20Property%20%26%20Plants.pdf International Center for Ethnobotanical Education Research and Service (ICEERS). (2017). Ayahuasca technical report 2017. ICEERS. https://www.iceers.org/ wp-content/uploads/2019/05/Ayahuasca_Technical_Report_ICEERS_2017_ ENG.pdf International Narcotics Control Board (INCB). (2010). Report of the International Narcotics Control Board for 2010. INCB. https://www.incb.org/incb/en/ publications/annual-reports/annual-report-2010.html Labate, B. C. (2011). Consumption of ayahuasca by children and pregnant women: Medical controversies and religious perspectives. Journal of Psychoactive Drugs, 43(1), 27–35. https://www.tandfonline.com/doi/abs/10.1080/02791072.2011.56 6498 Labate, B. C., & Cavnar, C. (Eds.). (2014a). Ayahuasca shamanism in the Amazon and beyond. Oxford University Press. Labate, B. C., & Cavnar, C. (Eds.). (2014b). Prohibition, religious freedom, and human rights: Regulating traditional drug use. Springer. Labate, B. C., & Cavnar, C. (Eds.). (2014c). The therapeutic use of ayahuasca. Springer. Labate, B. C., & Cavnar, C. (Eds.). (2018). The expanding world ayahuasca diaspora: Appropriation, integration and legislation. Routledge. Labate, B. C., Cavnar, C., & Gearin, A. K. (Eds.). (2017). The world ayahuasca diaspora: Reinventions and controversies. Routledge. Marshall, J. (2009). Personal freedom through human rights law? Autonomy, identity and integrity under the European Convention on Human Rights. Martinus Nijhoff Publishers. Mill, J. S. (1869). On liberty. Longman, Roberts & Green. Moran, K. (2017, October 2). Is ayahuasca really disappearing? Chacruna.net. http://chacruna.net/ayahuasca-really-desappearing/

84  Charlotte Walsh Multidisciplinary Association for Psychedelic Science (MAPS). (n.d.). Mission statement. https://maps.org/about-maps/mission/ Palhano-Fontes, F., Barreto, D., Onias, H., Andrade, K., Novaes, M., Pessoa, J., Mota-Rolim, S., Osorio, F., Sanches, R., Dos Santos, R., Tofoli, L., de Oliveira Silveira, G., Yonamine, M., Riba, J., Santos, F., Silva-Junior, A., Alchieri, J., GalvaoCoelho, N., Lobao-Soares, B., Hallak, J., Arcoverde, E., Maia-de-Olivera, J., & Araujo, D. (2018). Rapid antidepressant effects of the psychedelic ayahuasca in treatment-resistant depression: A randomized placebo-controlled trial. Psychological Medicine, 49(4), 655–663. https://doi.org/10.1017/S0033291718001356 Potter, N. (2018, January 8). Psychedelic markets of the future. Chacruna.net. http://chacruna.net/psychedelic-markets-future/ R v Aziz. (2012). EWCA Crim 1063. https://www.bialabate.net/wp-content/ uploads/2017/07/Forston_Critical_Case_Comment_2012.pdf Roper, M. (2015, October 1). Suicides, sects, murder and insanity: The disturbing truth about the trendy ‘spiritual’ hallucinogenic brew being taken by gap year backpackers in the Amazon (and even in British sitting rooms). Daily Mail. http://www.dailymail.co.uk/news/article-3253274/Suicides-sects-murderinsanit y-disturbing-truth-trendy-spiritual-hallucinogenic-brew-takengap-year-backpackers-Amazon-British-sitting-rooms.html Sanchez, C., & Bouso, J. C. (2016). Ayahuasca: From the Amazon to the global village. ICEERS/TNI. https://www.tni.org/en/publication/ayahuasca-from-theamazon-to-the-global-village Sanchez, C., & Collins, M. (2018). Better to ask forgiveness than permission: Spain’s sub-national approach to drug policy. Global Drug Policy Observatory. http://fileserver.idpc.net/library/GDPO-PolicyBrief12-Spain%27s-Sub-nationalApproach-to-Drug-Policy-June2018.pdf Solnit, R. (2016). Hope in the dark: Untold histories, wild possibilities. Haymarket Books. Southey, H., Weston, A., Bunting, J., & Desai, R. (2017). Judicial review: A practical guide. LexisNexis. Taylor, S., Buchanan, J., & Ayres, T. (2016). Prohibition, privilege and drug apartheid: The failure of drug policy reform to address the underlying fallacies of drug prohibition. Criminology and Criminal Justice, 16(4), 452–469. https://journals. sagepub.com/doi/abs/10.1177/1748895816633274 Transform. (2009). After the war on drugs: Blueprint for regulation. Transform Drug Policy Foundation. https://transformdrugs.org/publications/after-the-war-ondrugs-blueprint-for-regulation United Nations. (1977). Commentary on the convention on psychotropic substances, done at Vienna on February 21, 1971. United Nations. https:// www.unodc.org/documents/treaties/organized_crime/Drug%20Convention/ Commentary_on_the_Convention_1971.pdf Walsh, C. (2014). Beyond religious freedom: Psychedelics and cognitive liberty. In B. C. Labate & C. Cavnar (Eds.), Prohibition, religious freedom, and human rights: Regulating traditional drug use (pp. 211–233). Springer. Walsh, C. (2017). Ayahuasca in the English courts: Legal entanglements with the jungle vine. In B. C. Labate, C. Cavnar, & A. K. Gearin (Eds.), The world ayahuasca diaspora: Reinventions and controversies (pp. 243–260). Routledge.

5 Santo Daime in Belgium and the Netherlands Prejudice, Pluralism, and the Daunting Quest for Religious Freedom in Europe Ben Meeus Introduction: A Double Paradigm Since 2001, the established legality of Santo Daime for the ICEFLU churches1 of Céu dos Ventos and Céu da Santa Maria served as a beacon of hope for its practitioners in the Netherlands, Belgium, Europe, and abroad. However, February 2018 marked a significant turning point. After 17 years of lawful presence and practice, the previously established religious freedom has suddenly been revoked. From one day to the next, Santo Daime passed from being a genuine expression of faith to a transnational organization involved in the international traffic of drugs. Although this recent development is deplorable from a human rights perspective, it does not come as a huge surprise. Western civilizations have a long history of promoting values or ideas that lead to—among various other atrocities—the persecution of alternative practices with spiritual and medicinal connotations. Such persecutions were and are always justified as a necessary “protective measure.” In certain cases, protective measures are agreeable. Yet, agreement should always be based on reason, and reason to criminalize the use of a natural substance by a religious minority should always be based on an earnest evaluation of the facts and context. Unfortunately, my studies confirm that such an evaluation can easily be contaminated by the eye of the beholder. More concretely, it shows that judges are liable to accept questionable evidence in support of biases and prejudices towards such groups and their practices (Richardson, 2015, 2016; Meeus, 2017). These biases and prejudices, in their turn, are intrinsically related to notions of “drugs” and “sects.” A double paradigm that can also be observed in the actions of other state actors and institutions in Belgium and the Netherlands. As such, to get a better understanding of how the Belgian and Dutch cases around Santo Daime have been handled, it serves to first deconstruct and contextualize these notions.

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The Drug War Paradigm The 1971 Convention on Psychotropic Substances (1971 Convention) In line with the previously established objectives of international drug control, the 1971 Convention serves to further “combat addiction,” which the international community marked as an “evil” (Single Convention on Narcotics, 1961). In particular, the growing concern of the epidemic spread of the abuse of psychoactive substances gave way to this instrument, as it would safeguard “public health and social problems resulting from the abuse” (United Nations Convention on Psychotropic Substances, 1971). Among a list of 31 substances, N,N-dimethyltryptamine (DMT) has been classified as a Schedule I controlled substance, obliging signing member states to criminalize activities involving its manufacturing, possession, transport, sale, etc. This, while reducing the use of these substances to “legitimate purposes.” However, as the convention marks a compromise between pharmaceutical interests and member states, the legitimacy of non-medical psychoactive substance use is non-existent. Furthermore, it is argued that the Conventions assume that traditional cultures, such as those using ayahuasca, will never extend their practices and influence to other populations and territories (Labate & Feeney, 2014; Sánchez & Bouso, 2015). This obviously no longer falls in line with today’s reality. The Ayahuasca Diaspora The Ayahuasca Defense Fund at the International Center for Ethnobotanical Education Research and Service (ICEERS) found that, between 1999 and 2008, only ten criminal proceedings concerning ayahuasca were known in five countries. Since then, legal cases have increased by 1,100% and spread out over 23 countries (ICEERS, 2017). This confirms a phenomenon that certain academics refer to as the “ayahuasca diaspora,” or the fast spread of people and organizations offering the beverage outside its natural habitat in the Amazon (Labate & Loures de Assis, 2017). This potentially leads to the commercialization of the beverage and its administration without due regard for ethical standards (Meeus, 2017; Peluso, 2017). A quick search on Google reveals over a dozen websites and Facebook pages offering ayahuasca-sessions outside any indigenous, religious, or therapeutically accredited context within the Netherlands, where prices range from 140 euros to 1,500 euros. Obviously, such trends generate a legitimate health and safety concern for authorities, resulting in apprehensions and confiscations. Yet, to what extent do such concerns and actions remain legitimate, and when does it become a flagrant misconception resulting in human rights violations?

Santo Daime in Belgium and the Netherlands  87 A Belief System A 25-year-long process involving multidisciplinary working groups (GMTs) and cooperative dialogue led to creation of a legal and ethical framework around the use of ayahuasca in Brazil. In doing so, it was clearly denied that its users hallucinate. The GMT objectively explored both risks and benefits, characterizing ayahuasca as a “tool” traditionally used to search for the sacred and self-knowledge (CONFEN, 1987; Tupper, 2008; Blainey, 2015). So far, this understanding has not yet permeated other legal spheres in Europe, where criminalization is on the rise. Considering that ayahuasca only contains a small amount of less than one gram of DMT per litre and is proven to be nontoxic and non-addictive, various authors have already criticized such trends globally. Tupper rightly points out that the current international drug control regime is a “belief system” that “fostered a peculiar discursive frame deeply entrenched in much of civil society, a drug war paradigm that seems to preclude ready comprehension, appreciation, and toleration of entheogenic practices such as ceremonial ayahuasca drinking” (Tupper, 2011, p. 130). Indeed, modern drug laws and policies tend to be ontologically predicated, leading to the denial of cultural constructions that refer to ayahuasca as a medicine, a sacrament, and a “plant teacher” (Tupper, 2008). As a result, little to no distinction is made between psychoactive substances such as cocaine, opium, THC, DMT, psilocybin, etc., that are considered to be inherently harmful or hallucinogenic. Yet, the scientific and rational foundations for these indistinct presumptions are based on a lack of evidence and contextualization (Meeus, 2017). As such, the pursuit of a drug-free world through a zero-tolerance approach, in practice, easily subordinates other primary goals of modern states and the United Nations (Barret, 2010; Crick, 2012).

The “Sect” Paradigm New Religious Movements (NRMs) and Harmful Sectarian Organizations (HSOs) Though Santo Daime essentially promotes and teaches Christian values, the context and beverage are “foreign” elements that find no reference in the cultural framework of European countries. As such, concerns arise as to whether this NRM (intentionally or not) causes harm to individuals or society. While this does reflect another legitimate concern, one should be careful in applying the word “sect” in this discussion. Such a categorization “instantly dehumanizes the adepts of a religion” and is “laden with pejorative connotations that skew people’s abilities to judge a religious group on its own merits” (Olson, 2006, p. 97). A single definition of what a “sect” constitutes does not exist, and the word only came to have a negative connotation through media and other

88  Ben Meeus scientific publications (Van Wijk et al., 2013). I observed this throughout my studies as, for example, the Brazilian GMTs responsible for studying ayahuasca adopted the term “sect” as a neutral term (Meeus, 2017). This confirms Giumbelli’s observation that the lack of definition on what a “sect” constitutes can be explained through the lack of clear terms that are supposed to set the limits of what freedom of religion constitutes. These terms are constructed on a case-by-case basis through historical processes that, depending on the different factors, socially construct these limits within a given society (Giumbelli, 2002). Such is definitely the case in Europe, where no common definition of religious communities and their freedoms exists. Every country challenges the European Human Rights Framework on religious freedom in its own particular way (Ferrari, 2006; Meeus, 2017). To that regard, various authors have referred critically to France, Germany, and Belgium as particularly rigorous in their control, surveillance, and persecution of “sects” (Fautré, 2010; Blainey, 2013; Richardson, 2015). The Netherlands, in general, seem to be more open and tolerant towards NRMs. A Belgian Perspective The Belgian side of the story allows for an interesting perspective when studying the fine line between tolerance of NRMs and prohibition of HSOs. In the aftermath of a collective suicide of 74 members of the Temple Solaire in Switzerland, a Belgian Parliamentary Commission of Investigation was instigated in 1996. According to Torfs, its report, entitled Parliamentary Inquiry to Develop a Policy to Combat Illegal Sects and The Danger They Pose to Society and to Persons, Especially Minors, is characterized by a genuinely negative attitude towards NRMs (Torfs, 2005). Nonetheless, following its recommendations, both a Center of Information and an Administrative Co-ordination Unit had been created through new legislation on June 2, 1998 (Belgium, 1998). It also provides for the current operational definition of what a HSO is, namely 1 A group with a philosophical or religious vocation, or pretending so, that, in its organization and practice, delivers itself to harmful illegal activities, harms individuals, or damages human dignity. 2 The harmful nature of a sectarian organization is examined on the basis of the principles contained in the Constitution, the laws, the decrees, and regulations, and the international conventions for the protection of human rights ratified by Belgium. (Article 2, Law of June 2, 1998) Such a definition holds a potential danger. A general rule, that seems neutral at face value, might put an NRM—often religious minorities—in a seemingly illegal situation to begin with. Such is the case with Santo Daime. Considering that DMT is prohibited, the harmful nature of their activities

Santo Daime in Belgium and the Netherlands  89 might be considered “proven,” making it a HSO by definition. Furthermore, such definitions “focus mainly on the harm these movements can provoke, but in doing so, they end up with definitions that can apply equally well to other groups and organizations, including mainstream religions” (Ferrari, 2006, p. 6). Luckily, the second paragraph does warrant an assessment with respect for international human rights obligations, which should avoid an overly rapid stigmatization of NRMs. Also, following the parliamentary commission’s work, a (non-exhaustive) set of criteria were elaborated, of which the global evaluation should serve as an indication of the harmful character of a sectarian organization (Denaux, 2002). 2 Santo Daime as a Harmful Religion? During a meeting with a legal representative of the Belgian Advice Center on HSOs, at no time has Santo Daime been depicted as harmful. Instead, it was explicitly stated that more scientific evidence is needed to consider ayahuasca as a danger to public health, and that in these terms, “the real danger is the massive criminalization of such practices” (Meeus, 2017). Indeed, it seems that the most imminent and potential danger is that any individual might choose to “start up” a Santo Daime church under false pretexts. Especially in the absence of any legal framework, such “churches” are likely to do harm without any repercussions. Regrettably, victims would be more likely to refrain from going to the police, as they would fear the stigma of being considered “drug users.” Having this in mind, I advise caution in projecting the harmful actions of a single person on an entire religious community comprised of people who are genuinely trying to live up to their religious beliefs and ideals. Any Santo Daime church can become harmful, but Santo Daime, in itself, is not. Just as one paedophile priest does not make the Holy See a paedophile organization, and just as one Muslim terrorist does not make the entire Muslim community terrorists (Meeus, 2017).

The European Convention on Human Rights A Normative Counterweight The potential harmfulness of the use of ayahuasca by Santo Daime shows an intrinsic relation between questions of a) drug control, b) NRMs and HSOs and c) human rights law. As can be observed in the Belgian definition of HSOs, the latter serves as a normative counterweight to the drug conventions (Elliot et al., 2005; Barrett, 2010). Both the Belgian and Dutch constitution protect the right to religious freedom; a right that is also enshrined in International and European Law, in particular, article 18 of the International Covenant on Civil and Political Rights (ICCPR) and article 9 of the European Convention of Human Rights (hereafter, Human Rights Convention). The norms of this last convention prevail over national regulations,

90  Ben Meeus and are guarded by a European Court of Human Rights (ECHR). This Court serves as a last-resort for groups or individuals whose religious rights have (supposedly) been violated by member states. The Right to Religious Freedom within the EU: A Democratic, Pluralist and Inclusive Search for Balance through Dialogue and Compromise In its recent case law, the ECHR’s Grand Chamber has marked religious freedom as: one of the foundations of a “democratic society” within the meaning of the Convention. This freedom is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life…. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. (S.A.S. v. France [GC], no. 43835/11, § 124, ECHR, 2014b) To that regard, it stresses the need to create appropriate conditions in which the religious identity of each person belonging to a national minority can be expressed, preserved, and developed. Thus, in the ECHR’s view, pluralism does not only entail a respect or mere tolerance of diversity, but also requires a more active and inclusive approach (Ouald Chaib, 2015). While considering limitations to the right to religious freedom, the ECHR further notes that “a balance must be achieved which ensures the fair treatment of people from minorities and avoids any abuse of a dominant position” and adds that “it is precisely this constant search for a balance between the fundamental rights of each individual which constitutes the foundation of a democratic society.” As this search for balance warrants both pluralism and democracy, the Court further stresses that it must be based on “dialogue and a spirit of compromise” (S.A.S. v. France [GC], no. 43835/11, § 128, ECHR, 2014b). In any case, the ECHR also emphasizes that the State’s duty of neutrality and impartiality is “incompatible with any power of the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed” (Eweida & Others v. the UK, nos. 48420/10, 59842/10, 51671/10 and 36516/10, § 81, ECHR, 2013a). This is especially important in cases involving religious minorities with “atypical” practices, such as Santo Daime.

The Legal Cases around Santo Daime in Belgium The Apprehension of César In 2011, a complaint was launched against César, a facilitator of an ayahuasca meditation group with the Federal Police’s anti-terrorism brigade,

Santo Daime in Belgium and the Netherlands  91 which has a separate group for “Harmful Sectarian Organizations” (hereafter, HSO-police). One can see that the decision to task a police directorate with both HSOs and terrorist organizations exemplifies Belgium’s rigorous control and surveillance on the matter of NRMs. The facilitator informed them of the existence of other groups using ayahuasca, including the Santo Daime churches of Belgium. This seems to have led them to investigate both Casa de Cura Mestre Irineu and Céu da União, whose cases I shortly elaborate below, highlighting the most prominent legal issues in my view. Casa de Cura Mestre Irineu (CdCMI): The Stance of the HSO-Police This church, led by a Brazilian/Belgian couple, was formally founded in Belgium around 2007. After César’s apprehension, CdCMI immediately registered their church in the Netherlands and ended all their church activities in Belgium out of fear for legal repercussions. Nonetheless, three months after, they were called upon by the Belgian HSO-police. In the encounter that followed between them, the HSO-Police had told them that ayahuasca is illegal because of the forbidden nature of DMT. Still, my studies have clearly shown that there is no indication whatsoever—based on the preparatory works of the international and national drug legislation— that ayahuasca is a prohibited substance or constitutes a danger to public health, a fortiori, because it is a non-toxic and non-addictive substance (Meeus, 2017). It would have been up to a judge to decide upon the illegal nature of ayahuasca. Yet, no fair trial had been given to this church, possibly in violation with article 6 of the Human Rights Convention. Second, the HSO-police told them they had every right to practise their religion, just not to drink and distribute ayahuasca. Obviously, such a statement goes against the State’s duty of neutrality and impartiality and shows a lack of understanding on the essential and sacred nature of ayahuasca for the Santo Daime religion. Subsequently, instead of accepting the invitation to attend and observe a Santo Daime work, they conducted a house search. According to the Brazilian/Belgian couple, this felt like sacrilege. All the above-mentioned implies that Santo Daime had, prima facie, been considered an HSO. The Stance of the Public Ministry The stance of the HSO-police and the Belgian Public Ministry do not seem to differ too much. Their 2012 annual report mentions that the Federal Prosecution held a meeting on May 7, entitled Sectarian Movement Which Engages in the Distribution of Ayahuasca (Drugs) (Belgian Public Ministry, 2012). It is likely that Santo Daime is being referenced. In any case, the double paradigm of drugs and sects becomes visible again, perhaps most shockingly in a communication of the Public Ministry to a

92  Ben Meeus Belgian newspaper reporting on Santo Daime. In the article, a spokesperson implied that religious freedom is ostensibly invoked to cover-up drug use: “What if tomorrow there is a religion claiming that the use of heroin is essential?” (Het Laatste Nieuws, 2015). This is a clear example of the ontological rigidity in drug policy, based on the belief that all “drugs” are equally harmful, dangerous, and addictive (Tupper, 2008). Following this reasoning within the current Belgian legislation, the Public Ministry also implies that Santo Daime is an HSO. The Legal Case Concerning ICEFLU Losing a Case Before It Begins. Following César’s apprehension, a Belgian ICEFLU church called Céu da União (CdU), founded in 1985, had two shipments of ayahuasca intercepted. The confiscation came together with a notice of the criminal charges pending against the church leader (hereafter, Mr. X), being the “import, possession, and delivery” of DMT. The Court of First Instance, Appeal, and Cassation all confirmed these charges in cases between 2014 and 2016. However, an extensive analysis of the arguments of the Belgian courts implies that a value judgement had already been passed on Santo Daime before an assessment of the case (Meeus, 2017). In its first paragraph, the Court of First Instance mentions that the “defendants did not dispute having imported… ayahuasca tea containing DMT from Brazil, and this in the context of… Santo Daime, in which the consumption of the ayahuasca tea belongs to the essential sacred sacrament of the worship” (Correctional Court of Bruges, 2014). As such, the defendants are seemingly put into a position where they did not “dispute” having done something “illegal” (which remained to be questioned). The fact that they did so because of the essential nature of their sacrament in religious worship is subsequently not treated as an informative fact, but as a justification for their prima facie illegal acts. Afterwards, the courts all classified ayahuasca as an illegal substance, in complete neglect of the ratio legis behind national and international drug legislation (Meeus, 2017). In doing so, it implied that ayahuasca is addictive and harmful. By the mere fact thereof, Santo Daime could already be classified as an HSO. This legally inadequate review of Belgian legislation subsequently makes way for the first mindboggling argument of the court, namely, that “the users of this tea hallucinate,” without any subsequent proof, reference, or explanation thereof. It’s no rocket science that the court’s reasoning starts off flawed, and the subsequent analysis of expert reports is taunted in a way that questionable evidence is allowed in support of the biases and prejudices of its judges. Toxicity and Non-Comparable Alternatives. Though there is a broad consensus that the use of ayahuasca is physiologically safe, the court deliberately choose to emphasize that “real” studies have proven the toxicity of ayahuasca. However, in doing so, they made reference to a

Santo Daime in Belgium and the Netherlands  93 15-year-old study in which strong doses of harmaline—an alkaloid found in ayahuasca—were administered to rats or mice. To strengthen their argument, reference was also made to both a report of the Belgian Advice Center on HSOs, and an expert report of a clinical toxicologist Dr. F. A. de Wolff. In both reports, reference is made to the possibility of more serious symptoms of acute toxicity, which include a rise in blood pressure and body temperature, accelerated heart rate and respiration, dilation of pupils, etc. Yet, in highlighting these effects as proven negative risks, the court failed to mention, twice, the conclusions of both reports. One mentions that these effects “remain within normal parameters.” The other concludes that “it is not plausible, on the basis of existing scientific knowledge, that ayahuasca consumption forms a threat to public health” (de Wolff, 2000; Informatie en Adviescentrum inzake Schadelijke Sektarische Organisaties [IACCSO], 2009–2010). From a procedural perspective, the neglect of such crucial scientific conclusions within the court’s assessment borders on the deliberate manipulation of information and, in any case, amounts to a serious dereliction of duty. Finally, then, the courts made some legitimate remarks, such as the fact that non-standardized preparations of ayahuasca make it impossible to always have the same level of toxicity. Surely, an earnest dialogue and cooperation between the Santo Daime churches and national authorities could mitigate such minor issues. Non-Comparable Alternative. However, a clear message of exclusion and prohibition is sent out, making it unlikely that judges were earnestly trying to safeguard the right to religious freedom. Right after reaffirming the decision in First Instance, one of the appeal judges unsympathetically proposed—in open court—that the church leader could “subscribe to yoga.” Such a non-comparable alternative can easily be regarded as offensive towards a holder of deep, existential convictions whose rights were just stripped away. Exile. As a result of the above-mentioned cases, both CdCMI and CdU moved their churches to the Netherlands. The general understanding, even among academics, is (or rather, was) that Santo Daime is legal there (see Labate & Assis, 2017). However, since 2001, only two Santo Daime churches were explicitly recognized through legal proceedings. As such, both Belgian churches moved to the Netherlands to find themselves exiled into a legal limbo. From 2017 to 2018, I have twice contacted the chief of the HSO-police to discuss my questions and findings. On both occasions, through the phone, he referred to the legal case of CdU (implying that the case is closed successfully), and that DMT is a prohibited substance (implying that ayahuasca is a prohibited substance). After expressing my disagreement, I have also sent him my thesis through mail, asking for an opportunity to meet or have a written response. As I have not received any reply, my above-mentioned analysis stands, and the legal cases around Santo Daime in Belgium are taunted by human rights violations.

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The Legal Cases around Santo Daime in the Netherlands Introduction Céu dos Ventos (CdV) and Céu da Santa Maria (CdSM) are two ICEFLU churches situated in the Netherlands. They were founded in 1999, and are led by Dutch people. The legal proceedings concerning the legal status of their churches are briefly discussed below. As this concerns over 17 years of legal battle, the infographic below gives an overview of the proceedings discussed.

The Fijneman Case In October 1999, an ongoing ritual of CdSM was raided by the Dutch police. These events followed both a police raid in Germany and a tip from Interpol on a “dangerous Brazilian drug-sect.” The Dutch Public Prosecutor declared that it was a case involving the use of hard drugs under the guise of a religious conviction (Trouw, 2001). However, according to one of the church leaders, they quickly realized Santo Daime was a genuine religious manifestation, and offered to drop the case. The church decided not to accept this and, instead, pursued a clear verdict of the judiciary regarding their religious freedom. This verdict had been given by the District Court of Amsterdam in 2001, which argued that the Public Prosecution had not put forward any concrete facts and circumstances that would prove a considerable danger to public health in this specific case. Through its analysis of expert reports, the court acknowledged that ayahuasca is essential to the

Santo Daime in Belgium and the Netherlands  95 Santo Daime church, and that its consumption always takes place communally, within a ritual framework. While the Public Prosecution argued that a restriction on religious freedom was warranted due to the prohibition of DMT in national and international legislation, the judge rightly affirmed that “the court must assess in concrete terms” whether such limitations are justified.3 And so, the mere existence of a prohibition through national law is insufficient to justify an infringement on the right to religious freedom.4 In its judgement, the court paid special attention to the expert report of clinical toxicologist Dr. de Wolff. As such, it objectively acknowledged the expert’s conclusion that, within the context of Santo Daime, it is not possible to conclude that ayahuasca consumption forms a danger to public health (de Wolff, 2000; District Court of Amsterdam, 2001). After this judgement, in 2011, the churches had sent letters of cooperation to the Public Ministry on three different occasions. This was in order to establish a mutually beneficial agreement on an insightful arrangement and registration on the import of ayahuasca for the churches. They received no responses. The Franklin-Beentjes Case At the same time, in 1999, the police had also raided the house of Franklin-Beentjes, confiscating a quantity of ayahuasca. Though proceedings had been discontinued, she filed a complaint requesting the return in 2005, mentioning that ayahuasca was necessary to practise her religion, Santo Daime. Yet, during a hearing in December 2005, Franklin-Beentjes had stated “I can also practice my religion without ayahuasca.” As such, in January 2006, the Court of Appeal of Amsterdam dismissed her complaint, considering that she could continue practising her religion without ayahuasca. Yet, in doing so, the court (just as in the Belgian case of CdU) neglected the final conclusions of Dr. de Wolff’s expert report and stated instead that “the use of ayahuasca can have unwanted effects of mild nature, such as nausea, but also more serious symptoms of toxicity, such as raised blood pressure and heartbeat…. The use of ayahuasca is therefore a danger to public health” (Court of Appeal of Amsterdam, 2006). Besides the fact that the court neglects the most important scientific conclusion of a clinical expert, it afterwards, perhaps unwittingly, enters into a theological assessment on Santo Daime. It stated that the limitation of the religious freedom of Franklin-Beentjes cannot be regarded as disproportionate, as ayahuasca is not essential for practising her religion. Yet, if the court accepts that this case concerns a Santo Daime church, but considers that ayahuasca is not essential to the religion of Franklin-Beentjes, this comes down to a contradiction in terms. It is safe to say that Santo Daime had already attained a “certain level of cogency, seriousness, cohesion, and importance.” Therefore, the State is not allowed to “assess the legitimacy of religious beliefs or the ways in which those beliefs

96  Ben Meeus are expressed” (Eweida & Others v. the UK, nos. 48420/10, 59842/10, 51671/10 and 36516/10, ECHR, 2013a). However, in exceptional cases the ECHR accepts that, through factual findings, one can question whether religious claims are genuine and sincerely held (Skugar a.o. v. Russia, no. 40010/04, ECHR, 2009). This should have been better evaluated. In complete disregard for the general principles of article 9 of the Human Rights Convention, the Supreme Court verified the abovementioned decision, accepting the advisory opinion of the Public Prosecution. It reasoned that any practice involving ayahuasca is prohibited because of the prohibition of DMT, and this for public health reasons, even if there is no significant danger to public health; again, a contradiction in terms. Extra weight was added to this decision because of the statement of Franklin-Beentjes (Netherlands Supreme Court, 2007). The Valousek Case Armed with the previous decisions of the Franklin-Beentjes case, the Public Ministry decided to start confiscating the ayahuasca of the ICEFLU churches. In the Valousek case of 2012, the District Court of Haarlem took note of the Supreme Court’s decision, yet argued—rightly so—that the ECHR demands a concrete examination on the case. As such, it observed that the Public Prosecutor had not submitted any further facts, views or circumstances that would invalidate the conclusions of Dr. de Wolff. It then concluded that “the import of the ayahuasca tea is assured with safeguards and that no notable health risks are attached to the ritual consumption of the ayahuasca tea within the closed gatherings of the church community” (District Court of Haarlem, 2009). In the appeal procedure, the same arguments were held by the Public Prosecutor, again with specific reference to the Supreme Court case of 2009. Yet, the Court of Appeal stated that the Supreme Court attached importance to the statements of FranklinBeentjes, and that its considerations have to be viewed in that light. During the trial, the executive director of the Brazilian mother church of Céu do Mapiá (ICEFLU), Alex Polari, had flown to the Netherlands to testify that the church of Franklin-Beentjes “is not part of the official Santo Daime church ICEFLU” (Van Der Plas, 2017). After affirming that article 9 of the Human Rights Convention demands an in concreto assessment of the case, the Court reaffirmed the religious freedom of Santo Daime (Court of Appeal of Amsterdam, 2012). Franklin-Beentjes at the European Court of Human Rights In the meantime, Franklin-Beentjes had filed an application concerning her case to the ECHR, which had been declared inadmissible as manifestly ill-founded (Franklin-Beentjes and CEFLU-Luz da Floresta v. the

Santo Daime in Belgium and the Netherlands  97 Netherlands, no 28167/07, ECHR, 2007a). It considered that the Dutch courts were entitled to consider the prohibition was “necessary” on the grounds that (a) DMT is nationally and internationally prohibited, and (b) the consumption of ayahuasca causes known effects. However, it is very important to underline that the ECHR, in declaring the case inadmissible, carried out an abstract summary check on whether the Dutch court was able to reach its decision based on national regulations. In doing so, the ECHR distanced itself from reviewing the facts and from providing a substantive judgement on the merits of the case. As a result, it grants a wide margin of appreciation to national courts to concretely examine and weigh religious freedom against public health considerations on a case-by-case basis. This opinion of the ECHR was to be expected. Because of its enormous workload, the ECHR declared over 97% of the cases inadmissible in 2014 (ECHR, 2014a). Furthermore, when it comes to cases involving the nexus between religious freedom and drug control, where the consensus or “common ground” between the European member states is hard to find, the decision of the national judge is left to their own discretion and is, therefore, virtually unlimited. This means that it remains unlawful for any national court to perform an abstract or general assessment when article 9 of the Human Rights Convention is involved, which demands a concrete assessment of each case. The (“Make It or Break It”) Van Dorsten A.O. Case The third affirmation of religious freedom. Of course, the Public Prosecutor interpreted the ECHR’s decision of inadmissibility as an explicit consideration of ayahuasca as a danger to public health. As such, armed with their blatantly wrong interpretations of the cases around Franklin-Beentjes and the general principles of article 9 of the Human Rights Convention, they continue their crusade against the Santo Daime church. Between 2012 and 2016, on six occasions, they confiscated ayahuasca destined for CdV and CdSM. In September 2016, then, the District Court of Haarlem again reaffirmed the religious freedom of Santo Daime, and this time, after a more extensive examination on the churches, its members, the information given to and asked from visitors, the transport, storage, and administration of ayahuasca, etc. (District Court of Haarlem, 2016). After the judgement, the churches again sent a letter of cooperation to the Public Ministry that, for the third time, remained unanswered. Instead, the Public Prosecutor filed an appeal that, due to a preemptive lawsuit, would be judged on February 28, 2018. Self-regulatory action CLAREIA. By lack of cooperation with public authorities, and awaiting the appeal case, the churches created an “umbrella foundation” called the Centre for the Legal Assessment of the Religious and Ethical Integration of Ayahuasca (CLAREIA). Clareia is Portuguese for “to clarify, brighten” and, as the name indicates, the foundation is a

98  Ben Meeus self-regulatory effort with the triple purpose to a) unite and protect legitimate ayahuasca churches that b) abide by ethical and legal standards to safeguard the sacred character of ayahuasca, and c) offer full cooperation to authorities. Substantial efforts had been made by legal experts to contextualize both “hard” and “soft” requirements of admission5 (as either “full” or “aspiring” members) within International and European Human Rights law. As such, the requirements are more concrete, elaborate, and demanding than those found in the Brazilian regulation. CLAREIA would be overseen by a board of three legal experts, me included. Prohibition of Santo Daime. It is quite surprising, then, that the Court of Appeal of Amsterdam argues that “the use of ayahuasca within the church, and the way it is obtained, imported and stored is insufficiently controllable.” In doing so, it mentions that, “even if the court would consider the report of prof. de Wolff, the undesired effects therein mentioned would not be controllable after taking ayahuasca, considering the current size of the churches.”6 Besides the fact that this is pure speculation, the court further argues that (a) the doses of ayahuasca and their toxicity are hard to define, that (b) the screening conversations with visitors are not held by medics or trained personnel, and (c) that they can’t rule out that certain people visit the church simply to “use the product.” Though legitimate, these concerns could be mitigated through earnest dialogue and cooperation. However, the court further considers that the system of import, transport, storage, and administration of ayahuasca is not trustworthy enough, and concludes that the “strongly increased interest of ayahuasca use outside the religious setting” further justifies prohibition (Court of Appeal of Amsterdam, 2018). Rejection of Appeal and Inadmissibility: The Final Blows. In October 2019, the Supreme Court rejected an appeal from the Santo Daime church with the central consideration being that “the assessment of the necessity of the infringement [on freedom of religion] in a democratic society does not always require a case-by-case consideration, but a general assessment suffices” (Supreme Court, 2019). Invoking the 2014 ECHR decision in the case of Franklin-Beentjes, the Supreme Court wrongfully concludes that the Court of Appeal of Amsterdam could determine that the prohibition of Santo Daime was necessary to protect public health, by the mere fact that the Opium Law prohibited DMT. It is shocking that the Supreme Court rules that a concrete examination on a case-by-case basis is not always required, which clearly violates due process and article 9 of the Human Rights Convention. The core task of any court, even more so when human rights are at play, is to arrive at a “fair balance” between the legitimate interests involved and to administer the law impartially. That is why Lady Justice is blindfolded, and the symbols of the judiciary are the scale and the sword. Yet, it seems the Supreme Court has dropped the scale and blindly chopped away its sword to provide a final blow to the religious freedom of Santo Daime in the Netherlands.

Santo Daime in Belgium and the Netherlands  99 As to be expected, the subsequent application by the ICEFLU churches before the ECHR in October 2020, was declared inadmissible as manifestly ill-founded by a single judge. Considering that the ECHR had previously ruled that it would leave these types of cases to the national courts (see the case of Franklin-Beentjes), the application did not receive much attention. This effectively leaves the Santo Daime church of the Netherlands without any further legal recourse at European level to claim their right to religious freedom.

Legal Floundering in Denmark and Beyond? It bears mentioning that the inadmissibility decision by the ECHR in the Franklin-Beentjes case can have serious implications—intentional or not— beyond Dutch borders too. In Denmark, for example, the Supreme Court, in 2017, argued that national authorities did not violate article 9 of the Human Rights Convention when prohibiting the import of ayahuasca by a Santo Daime church. It justified this decision by referencing the Franklin-Beentjes case of 2014, noting that the ECHR has judged that the prohibition of ayahuasca was anchored in the need to protect public health and order. The Danish Supreme Court completely ignored the fact that the ECHR declared that case inadmissible as manifestly ill-founded, and therefore did not get around to reviewing the facts and making its own substantive judgement. Yet, a senior researcher of the Danish Institute for Human Rights seems to commend the Danish judiciary for their compliance with ECHR case law, which is unfortunate and erroneous (Lassen, 2020). The sad part, yet again, is that this case involves real life and law-abiding citizens being denied the right to practise their religion within an increasingly narrow space for legal recourse. In the meantime, the spaces in which legal recourse is possible would do well to not replicate ongoing injustices by interpreting or copy-pasting erroneous legal reasonings. As observed in the case of Santo Daime in the Netherlands and Denmark, this type of legal floundering violates article 9 of the Human Rights Convention under the guise of “good compliance” with ECHR case law and, consequently, perpetuates ongoing human rights violations against religious minorities in the European Union.

Reflections on Personal Autonomy and Less Restrictive Means This article highlights that, in Belgium and the Netherlands, the religious use of ayahuasca within the context of Santo Daime has been criminalized ostensibly for public health reasons. The ECHR offers a wide margin of appreciation to European member states to reach such conclusions, unlawful as they may be. Up to this point, no concrete scientific evidence has concluded that the consumption of ayahuasca within ritual or religious context

100  Ben Meeus constitutes a danger to public health. Moreover, not a single case has been brought forward that indicates serious health implications on individuals. This should also add some weight to the verdict of empirical scholarship that has “consistently shown that the psychophysical risks of (entheogenic) substances are demonstrably minimal” (Blainey, 2015, p. 299). Therefore, states should refrain from a paternalistic interference with the choices that people make out of their own free will and in pursuance of their religious convictions or curiosities, within the sphere of their personal autonomy. Indeed, the ECHR has already affirmed that, in accordance with article 8 of the Human Rights Convention, “the ability to conduct one’s life in a manner of one’s own choosing includes the opportunity to pursue activities perceived to be of a physically harmful or dangerous nature for the individual concerned” (Jehovah’s Witnesses of Moscow v. Russia., no. 302/02, §119, ECHR, 2010). The ECHR has also previously found that, for a measure to be regarded as proportionate and necessary in a democratic society, “the possibility of recourse to an alternative measure that would cause less damage to the fundamental right at issue whilst fulfilling the same aim must be ruled out” (Nada v. Switzerland., no. 10593/08, §183, ECHR, 2013b). Both the Dutch and Belgian judiciary have manifestly failed to even consider the wide spectrum of less restrictive measures available to mitigate perceived concerns related to the safeguarding of public health. In doing so, they endorsed the legally equivocate crusade of their respective Public Ministries.

Conclusions It is clear that Santo Daime churches navigate difficult waters as a foreign religious minority using a psychoactive substance within the European Union. The stigma related to its categorization as a “sect” or its practitioners as “drug users” has a detrimental and unjustifiable impact on their existence and continuity. Within a persisting context of prohibition and criminalization, Santo Daime churches are further pushed into clandestinity. It would be foolish to assume that daimistas will stop importing ayahuasca in respect of prejudice-induced and legally flawed judgements that deny them the right to practise their religion. As a consequence, their religious practice will continue to exist next to commercialized and other nonethical ayahuasca activities. Therefore, in Europe, the ayahuasca diaspora is effectively becoming a new “mini drug war.” “Drug routes” are created and used by both “legitimate” and “illegitimate” ayahuasca importers, which the authorities will likely continue to prosecute as a homogenous group at their own discretion and, so far, without any form of dialogue. This, while the Santo Daime churches have continuously reached out their hands for a full and transparent cooperation during legal processes. An entire organizational framework exists for the Santo Daime church, with transnational functions that allow for an ethically and legally considerate way of producing, transporting, storing, and using ayahuasca. A zero-tolerance

Santo Daime in Belgium and the Netherlands  101 approach by national authorities simply does not allow for mitigation and control of a situation that clearly requires it. The story continues to unfold, and it befits genuine democratic, pluralist, and inclusive societies, such as EU member states, to search for ways to establish the necessary and sought-after dialogue in a frank spirit of compromise and understanding. The creation of a legal framework around Santo Daime is imperative.

Notes 1 ICEFLU stands for Igreja do Culto Ecléctico da Fluente Luz Universal (Church of the Eclectic Cult of the Universal Flowing Light). Their mother church, called Céu do Mapiá, is situated in Amazonas, Brazil. Founded in 1983, ICEFLU’s institutional framework is responsible for the daily functioning of the entire transnational structure, including the task of providing ayahuasca to their daughter churches (affiliates) in Brazil and overseas. 2 Among the criteria, one can find: (i) misleading or abusive recruiting methods; (ii) physical or mental mistreatment; (iii) deprivation of adequate health care; (iv) disproportionate financial demands, fraud, and misappropriation; (v) abusive exploitation of work, etc. 3 See ECHR, Metropolitan Church of Bessarabia and Others v. Moldova, §119; ECHR, United Communist Party of Turkey, §47; ECHR, Partidul Comunistilor (Nepeceristi) and Ungureanu v. Romania, §49; ECHR, Moscow Branch of the Salvation Army v. Russia, §76 and Svyato-Mykhaylivska Parafiya v. Ukraine, §138: “the Court must look at the interference complained of in light of the case as a whole and determine whether it was proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient.” In doing so, “the Court has to satisfy itself that the national authorities… based their decisions on an acceptable assessment of the relevant facts.” (ECHR, 1996, 1998, 2002, 2005, 2006 and 2007b) 4 See ECHR, Manoussakis v. Greece, §38: “the Court doesn’t consider it necessary to rule on the question whether the interference in issue was ‘prescribed by law’ in this instance because, in any event, it was incompatible with article 9 of the Convention on other grounds.” 5 Hard requirements for admission include: (i) be part of a legitimate religion, (ii) be registered as a legal entity, (iii) be prepared to offer full cooperation to authorities, (iv) exclude any kind of commercialization, and be prepared to provide insight in their financial accounting to confirm this, and (v) not commend ayahuasca as a substitute for regular medical and psychological care, nor obstruct access to such care. Soft requirements for admission relate to: (i) continuity of practice, (ii) import documentation, (iii) bookkeeping, (iv) storage, (v) intake, (vi) guidance, (vii) financial contributions, (viii) support of academic/scientific research, and (ix) leadership. 6 In 2017, the churches registered 2,532 guests and 2,871 official members.

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Santo Daime in Belgium and the Netherlands  105 Van Der Plas, A. G. (2017). Pleading notes before the District Court of Haarlem on January 24, 2017. Haarlem. Van Wijk, A., Bremmers, B., Hardeman, M., Appelman, T., & Ferwerda, H. (2013). Het warme bad en de koude douche: Een onderzoek naar misstanden in nieuwe religieuze bewegingen en de toerekendheid van het instrumentarium van recht en zorg [The hot bath and the cold shower: An investigation into abuses in new religious movements and the imputability of the instruments of law and care]. Ministerie van Veiligheid en Justitie, Wetenschappelijk Onderzoek- en Documentatiecentrum (WODC). https://www.bureaubeke.nl/doc/2013/Rapport_Warme_ bad_koude_douche_Bekereeks.pdf

6 The Landscapes of Ayahuasca in Contemporary France Clara Novaes and Marie Rose Moro Translated from French by Jo Ann Cahn

Introduction The western portion of the Amazon Forest, traversed by the Purus, Juruá, and Madeira rivers and previously home to a largely Indigenous population, was transformed at the end of the nineteenth century into Brazil’s principal rubber-producing area (Chaumeil, 2003). Although several Amerindian societies have disappeared, some seringueiros (rubber workers, most of them migrants from Northeast Brazil) encountered and made use of a fundamental element of the region’s indigenous culture: ayahuasca. Ayahuasca is a Quechuan term that has become an international appellation designating a powerful psychoactive brew that requires long and meticulous preparation. The brew is rich in dimethyltryptamine (DMT), a powerful psychoactive substance. (For the complex pharmacology of ayahuasca, see Callaway et al., 1999; Bois-Mariage, 2002.) It comes in part from a plant important in the shamanisms of the Amazon Basin, used long before the arrival of the Portuguese and Spanish colonizers. Local names include yajé, caapi, natem, and datem (Baud, 2009), the medicine, the purge, hoasca, daime, tea, or just “the plant.” Several factors play a role in the psychotropic effects of this decoction, the fruit of at least two plants, Banisteriopsis caapi (the vine) and Psychotria viridis (a shrub): the plants chosen—the vine and its additives—and their properties, the technique for preparing the brew, the ambience of the ritual, the role of the guides, and, quite obviously, the psyche of each participant. In the course of the twentieth century, in a chaotic social, economic, and cultural context, three migrants (Irineu Serra, Daniel Pereira de Mattos, and Gabriel de Costa) built new hybrid institutions around ayahuasca, which they made into a sacrament. Santo Daime emerged at the beginning of the 1930s, just after the first rubber cycle (1860–1915), while the other two ayahuasca religions developed at the end of the second rubber cycle: Barquinha was born in 1945, and the União do Vegetal appeared at the end of the 1950s. Out of their plant-induced trances, these three men created a spiritual-religious use of ayahuasca very different from the recreational use of the other seringueiros. They used this substance as a vehicle for putting

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DOI: 10.4324/9780429001161-7

The Landscapes of Ayahuasca in Contemporary France  107 humans in contact with the sacred. Their multiple inspirations included popular Catholicism, European spiritualism, Afro-Brazilian religious traditions (Candomblé and Umbanda, in which trances and possession play a major role), and, of course, indigenous Amazonian shamanism. The uses of this psychotropic drink and its rituals have changed over the past 40 years (Labate et al., 2008). Some of its elements have taken on new meanings in cultures different from those in which they were developed. This is especially true beyond the frontiers of the Amazon, in several countries across the world where collective, ritual experiences—religious or not—now exist around this drink. Thus, starting from the specific context of the indigenous shamanisms of the Amazon, ayahuasca encountered the culture of the Brazilian forest, then urban Brazilian cultures, and then, new forms of spirituality from Europe and other parts of the world. Over several decades, it became transcultural and sensitive to the vicissitudes of the contemporary world (Novaes, 2018). There are thus officially three ayahuasca religions (Labate, 2004) born in the Brazilian Amazon region in the twentieth century from the meeting of seringueiros with the mystic trance induced by ayahuasca: the Santo Daime, the União do Vegetal, and Barquinha. The first two are present almost everywhere in Brazil and in several other places throughout the world. They are recognized by the Brazilian government, which has given them the right to use “ayahuasca tea” in an exclusively religious framework. In Brazil, 40 years ago, ayahuasca was practically unknown. Its appeal remained mysterious, linked to the exotic cults of the Amazonian Forest of the country’s faraway North. Nonetheless, beginning in the 1970s, these religions were slowly “discovered” by hippies, artists, intellectuals, and travelers, and, at the beginning of the 1980s, they were adopted by portions of the middle class of major urban centers. By the end of the decade, ayahuasca and its rituals began expanding abroad (Labate et al., 2008). In this context, several urban neo-ayahuasca groups appeared (a term coined by Brazilian anthropologist Beatriz C. Labate in 2004, referring to groups that first appeared in Brazil in the 1990s that were generally inspired by one of the three ayahuasca religions but did not belong to any of them). Eminently experimental, they created a true hybrid, mixing the ayahuasca religions and shamanic practices of the Amazon region (Brazil, Peru, etc.) with other currents of thought, including New Age, Jungian psychology, and variants of orientalism. In this chapter, based on the results of our research (Novaes, 2011) conducted with ethnopsychoanalytic methods, we argue that the experience of the ancient practice of using ayahuasca can be considered as a practice seeking its place in the contemporary world (Agamben, 2008), and that it speaks of a mode of subjectivation that tries to find a place in this world, a place that it is useful to analyze in dialog with the legislation of the French government on ayahuasca. Our clinical practice teaches us that the contemporary world is characterized by new modalities of subjectivity that

108  Clara Novaes and Marie Rose Moro seek modes of accomplishment in the individual as well as in the collective and social systems. These new religious and spiritual experiments, such those linked to the use of ayahuasca, register directly in the body, reflecting these attempts at singularization and hybridization that allow contemporary subjects to put together novel ways both of being in the world and of living religious feelings through the “migration of the sacred” (Laplantine, 2007) and the transformation of cultures. It is appropriate to consider the extent to which a State’s repressive position makes it possible to truly think through these attempts and movements.

Legislation about the Use of Ayahuasca We become ill when we adhere totally and unrestrictedly to the norms of our own society. François Laplantine (2007, p. 171) Ayahuasca, per se, is not regulated by international conventions; what is regulated is DMT, which is one of its components. The laws governing it vary from one country to another. In 2004 (after 18 years of waiting), ayahuasca was permanently decriminalized in Brazil for religious and indigenous use; although the ban on it had ended in 1986, regulation remained uncertain and inconsistent until 2004. In March 2006, the Brazilian national antidrug council (CONAD) conducted a seminar on ayahuasca and asked the ayahuasqueros (those individuals who use ayahuasca in a ritual context) to choose six representatives to comprise a multidisciplinary working group to develop policy on various aspects of ayahuasca use in Brazil. The working group included a pharmacologist-psychiatrist, a psychologist, a lawyer, a social worker, another psychiatrist, and the social anthropologist Edward MacRae. Their work led to the official legislation on ayahuasca in Brazil. In 1971, Brazil was one of the countries signatories of the Vienna international convention on psychotropic substances (France has always used this treaty as evidence of the illegality of ayahuasca). Since then, the United Nations has determined that DMT obtained from plants is not subject to control by this treaty. On January 25, 2010, CONAD announced its resolution creating a right to the ritual use of ayahuasca in religious settings, establishing norms and ethical principles that these religions would have to follow. Brazil’s position is highly original and represents the serious work that served as a foundation for a long debate, bringing together representatives of the ayahuasca religions and experts in several important domains, including science, medicine, and social work. On this subject, see Labate and Feeney (2011), which deals with the regulation of ayahuasca in Brazil and elsewhere in the world. It succinctly presents the changes over time from its prohibition in the 1980s through the moment in 2010 when CONAD adopted a new

The Landscapes of Ayahuasca in Contemporary France  109 resolution concerning ayahuasca use in Brazil. Labate and Feeney use this resolution as a starting point for a debate around the expansion and internationalization of these practices and point out that it could influence decisions made worldwide. The article reviews complex ideas such as religious liberty and religious legitimacy. In France, ayahuasca has been banned since May 2005 (see Bourgogne, 2011 for a legal history of this beverage in France.) There, ayahuasca is first and foremost known outside the academy from its Peruvian circuit. It is not uncommon, for example, to hear interviews on French radio about the French doctor Jacques Mabit and the Takiwasi Center (see Dupuis, 2016) in Peru, an institution he created in 1992 to treat cocaine addicts with ayahuasca. Similarly, the films, books, and public talks by the French filmmaker Jan Kounen (2004a, 2004b) have led to a greater diffusion of information about ayahuasca, notably in the context of Shipibo-Conibo shamanism. In the mid-1990s (as we learned in conducting research for my doctoral thesis, Novaes, 2011), two French daimistas (the term used to describe followers of Santo Daime) in Paris and a Brazilian, then working on his doctorate in French literature, created a small group practicing according to the principles of the Santo Daime church. There was talk of a similar group in Marseille at that time. Until 1999, the French members received ayahuasca from Brazil without any problem. A denunciation then led the police to begin an investigation of their practices and these three individuals were jailed for three weeks. After ongoing legal procedures, ayahuasca was legalized in France in January 2005, only to be banned again that May. Currently, Sébastien (a pseudonym, as are all the names of research participants mentioned here), the French leader of a Santo Daime church, and others in France continue to try to follow the examples of Spain and the Netherlands and practice the Santo Daime religion legally in France. France seems, nonetheless, to want to ban their sacramental use of ayahuasca, which it considers a cult practice, although the ayahuasqueros evidently claim that they are not. According to some ayahuasqueros and French anthropologists I spoke to, personal quarrels around experiments with ayahuasca involving influential French political figures may have played a decisive role in the decision about the legality of ayahuasca in France. However, we were unable to investigate this issue further. In the Netherlands, the use of ayahuasca in religious contexts has been authorized since May 21, 2002. It has also been legal in Spain since October 2003. In both countries, there are Daimista groups closely linked to one another and affiliated with ICEFLU (Igreja do Culto Eclético da Fluente Luz Universal [Eclectic Worship Church of the Fluent Universal Light]), the Santo Daime umbrella organization based in Brazil. They follow the Brazilian matrix. Ayahuasca use is not criminalized in Peru, where it is used as part of traditional medicine. In the United States, the use of ayahuasca is not decriminalized, only the UDV and certain branches of Santo Daime

110  Clara Novaes and Marie Rose Moro are allowed to use it under religious auspices. It is decriminalized, along with other plant medicines, in Arcata, Oakland and Santa Cruz, CA, and Ann Arbor, Northampton, Somerville, and Cambridge MI, Denver, CO and Seattle WA. In France, according to the 2005 report of the only organization of its kind in the world, Miviludes (Mission interministérielle de vigilance et de lutte contre les dérives sectaires, or, as they translate it into English: “inter-ministerial mission of monitoring and combat against sectarian or cultic deviance”): By decree dated April 20, 2005, on the proposal of the national commission on narcotic and psychotropic agents, the minister of… health… classified as narcotics a series of products: Banisteriopsis caapi, Peganum harmala, Psychotria viridis, Diplopterys cabrerana, Mimosa hostilis, Banisteriopsis rusbyana, harmine, harmaline, tetrahydroharmine (THH), harmol, and harmalol, that is, the substances involved in the preparation of what is generally called ayahuasca. According to the report, beyond the purely pharmacological reasons that led the Commission to propose this classification, the fact that this substance is essentially taken during ritual ceremonies of the Church of the Santo Daime could not be ignored. (Miviludes, 2005, p. 121)

Is Ayahuasca Use “Cultic Deviance”? According to Miviludes (FAQ, n.d.), the legislature “has always refused to define religions. For the same reasons, no definition exists of the concepts of cults or abuse in view of the impossibility of defining these ideas.” The 1995 parliamentary investigation committee selected the following criteria for understanding and characterizing cults and sects: • • • • • • • •

mental destabilization; exorbitant financial demands; severing of ties with the original social environment; attacks on physical integrity; indoctrination of children, antisocial discourse, breaches of the public order; substantial legal problems; bypassing traditional economic networks; attempts to infiltrate the authorities (Commission d’enquête sur les sectes, 1995).

In the long, eclectic list of practices monitored by Miviludes (Report, 2005), special attention is given to deviant medical practices and alternative therapies (Reiki, energy medicines, prayer healing, etc.), where magical thinking

The Landscapes of Ayahuasca in Contemporary France  111 and reliance on miracles might endanger lives. The practices of shamanism and personal development (which they claim offers a fertile field for potential shamans and rip-off artists) are also on this list of signs to be monitored; they discuss the resurgence of shamanism in the Western world and the risk presented by facilities such as the Takiwasi Center, described above, of the French physician Jacques Mabit. They state: Beyond the particular case of Takiwasi, shamanic practices of equally contestable therapeutic validity appear to be progressing in France under the guise of personal development. This poses problems when these practices combine the risk of fraud and real dangers for the physical and mental health of those using them. In Peru, sessions for the discovery of ayahuasca are now included in tours proposed by tour operators ($200/session): a simple experience of taking hallucinogens in which folk customs replace rituals for thrill-seeking foreign tourists. In France, recently, the niche of “commercial shamanism” also seems to be developing via several personal initiatives of therapistshamans recruiting clients by a two-fold promise to “consumers,” offering recovery and self-knowledge. (Miviludes, 2005, p. 48) Concrete proof is nonetheless absent. We read further on: “These methods are worrisome. They may have been responsible for an accidental death in the United States” (Miviludes, 2005, p. 50). The danger of ayahuasca, according to this report, said to be based on investigations conducted in 2004 and 2005, lies “in the fact that distributors offer counterfeit products, the effects of which have not been determined” (Miviludes, 2005, p. 100). The term “distributors” appears to suggest the existence of a drug trafficking network that does not (yet) seem to exist. Although some sites, especially in the Netherlands, can be found on the internet offering small quantities of leaves and vine for the psychonauts who want to try manufacturing the brew and experimenting alone, both the discourse in the milieu of ayahuasca and its international tradition strongly recommend that it should not be taken alone, or even without someone experienced in its use. Currently, on the Miviludes site, in the page dedicated to international news (see: https://www.derives-sectes.gouv.fr/search/node/ayahuasca, consulted on January 21, 2022), a reserve notice was issued on October 4, 2019, about ayahuasca and the ongoing trend of an international network around sectarian movements entitled: “du ‘neo-shamanic’ ‘narco-tourism’: in order to develop their activities throughout the planet.” Then, a table is highlighted with a notice: The French Embassy warns travelers against the consumption of ayahuasca, a hallucinogenic plant used by shamans in the Amazon, listed

112  Clara Novaes and Marie Rose Moro in the narcotics register in France. The use of ayahuasca can have serious medical consequences, which can lead to death. Mastery of the process of initiation into shamanism is in no way controlled and cannot be guaranteed under any circumstances. However, many tourist guides as well as unreliable eco-tourism centers offer initiations to shamanism. Thus, the Sachawawa center in Tarapoto is, in particular, the subject of a judicial inquiry following the death of a Frenchwoman in August 2011, in circumstances not yet elucidated. We thus find a second allusion to a death caused by ayahuasca but without more precise information. Unlike other countries, such as the United States, the Netherlands, and Spain, Miviludes makes no mention of the research carried out in Brazil with interdisciplinary and international teams, especially the Hoasca Project. In 1995, the first conference of the Hoasca Project was held in Rio de Janeiro, funded by the União do Vegetal (UDV). The aim of this conference was to present the results of what is probably the most important research ever conducted about ayahuasca. The Hoasca Project took place in Manaus in the 1990s. It was the first major scientific study of ayahuasca, and its results remain important today. A group of nine research groups participated, including institutions and universities in Brazil, the United States, and Finland. More than 30 researchers took part, included the highly respected Charles Grob, Dennis McKenna, and Jace Callaway. The 15 volunteers in the study were all members of the UDV, affiliated with the group for at least ten years, during which time they had consumed ayahuasca around once a week. The Hoasca Project studied the long-term consequences of the regular use of ayahuasca in a ritual framework. This study was conducted by an international team of researchers, and its results were published in a prestigious psychiatry journal. The study concluded that the subjects were “normal” physiologically, neuropsychologically, and psychiatrically. Although most of the volunteers had presented episodes of dependence on alcohol or other substances before joining the UDV, they had been abstinent since. More surprisingly, their results on the neuropsychological tests were better than those of the matched control group of people who had never used ayahuasca. This study was a fundamental step forward in the history of the Brazil’s regulation of ayahuasca in urban religious settings. Nonetheless, ayahuasca, like any other product or activity, is not immune to criminals who seek to use its trendiness to make money. However, they represent a small minority of users. Complex questions of discrimination and fundamental fairness are raised by legal measures that lump all practices together, as the French laws do, putting the practices of Santo Daime adherents together with those of potential scammers, swindlers, or hustlers. The question also seems to be political: While it is clear that various harmful practices can arise among movements that could be categorized as

The Landscapes of Ayahuasca in Contemporary France  113 cults, the French manner of dealing with the specific question of ayahuasca remains enigmatic. However, we cannot raise all of the issues involved in that decision in this article. Generally, a cult is defined as a totalitarian group in which a guru controls the minds (mentally manipulates or brainwashes) its members. According to the sociologist Arnaud Esquerre (2009), this general battle against “mind control” is essentially a contrivance by which the State exerts its power on the human psyche, masking the complexity and singularity of the situation targeted. This battle against cults, said to be for the good of both society and individuals, and its ensuing stakes and implications, reflects a system of power that results in subjugation. The topic of cults, as an object of discourse, and their particular treatment in France, takes us into an especially divisive discursive field that requires going above and beyond the binary logic polarization of pro- or anti-cult. Some consider them new cults, and others, new religious movements. According to Esquerre (2009, p. 356): In analyzing the fight against cults in France, which began in the 1970s, the way that these disputes bring into play the psychological autonomy of human beings, the conditions in which accusations of mind control succeed, the battles between professionals of the mind, the willingness to condemn psychological subjection and to regulate psychotherapy, the point was to explain how power over the mind is created and exercised. This remains a real question. Who could support the misdeeds that categorize a cult? No one. And this answer raises the question of the use of this label: Who belongs to it? Was a group correctly categorized as a cult or did the State have another reason to use this list? In a historic overview of the concept of cult from the nineteenth century until today, Esquerre stands out by arguing that “what is unprecedented is not that there are ‘new cults,’ but the ways of designating and combatting them” (Esquerre, 2009, pp. 8–9). Contrary to those who argue that, now, all are free to choose and practice the spirituality they want, sociological research shows that the possibility of choosing a spiritual community in France is very limited and strongly constrained by the State and by various control mechanisms. Going beyond these limits involves the risks of severing family ties and of subjecting oneself to discrimination, especially in work relationships. According to the sociologist Danièle Hervieu-Léger (2001), the concept of “cult” is generally perceived in France as a sort of disease that starts with contaminated individuals and is likely to undermine the entire social body. The fight against cults thus becomes a sort of public health campaign, a combat to defeat an “epidemic threat,” part of the centuries-old battle by medical science against obscurantism and superstition, indirectly re-legitimizing the latter. (Hervieu-Léger, 2001, pp. 56–57)

114  Clara Novaes and Marie Rose Moro Hervieu-Léger finally calls for a rational public debate that would make it possible to construct a “new approach to religious pluralism within secularism.” Her request appears to us to be the same one that Sébastien has made, and her goal the same as the analysis he developed about the place of Santo Daime in France. Hervieu-Léger underlines that the publication of the list and the effort made by legislators to define a spiritual map of “potentially dangerous groups” reveals especially a dead-end attempt to block the disorders induced by the unregulated pluralization of a religious scene that is no longer organized exclusively around the “great religions” long present on French soil. (Hervieu-Léger, p. 48) She points out that, today in France, this kind of mobilization of the authorities is still based on two linked anxiety-inducing factors: a fear of the risk of cults and an antipathy to pluralism, expressed by a desire for a normalizing type of religious regulation, modeled on Christian confessional pluralism. Less explicitly, the State may want to “tear minds away from the influence of representations judged to be in radical contradiction to reason and autonomy” (Hervieu-Léger, p. 22). Some cults are actually dangerous; we absolutely do not deny that. Nonetheless, contrary to cults, the ayahuasca religions, and even the neo-ayahuasca urban circles, seek to participate in research, studies, and analyses. The UDV (one of the Brazilian ayahuasca religions) created a medical-scientific department (DEMEC) in 1986, tasked with speaking on UDV’’s behalf with both authorities and scientists. DEMEC seeks to facilitate the performance of research by scientific and scholarly institutions on ayahuasca, especially within the UDV. It is also responsible for organizing conferences on ayahuasca. They do this in a quest for scientific legitimacy that could be questioned and analyzed. It is, in any case, not characteristic of cults, but rather the opposite of the isolation practiced in cults that could be characterized as dangerous: those that seek to cut members’ ties to their family and friends. For this reason, as we noted during the years of research for our master’s thesis (Novaes, 2005) and our doctoral dissertation (Novaes, 2011), we have been unable to consider the ritual urban uses of ayahuasca equivalent in any way to the actions of either cults or totalitarian organizations. Certainly, we can and must ask ourselves questions about the nature of this contemporary desire for self-knowledge and the resurgence of practices outside of their original cultural context, and about the commercial risks and their potential consequences for both the culture of origin and the new host cultures in Latin America and then Europe. Nonetheless, it seems to us insufficient to simply list or record these practices on a list of prohibitions and hope that a State decision will keep people away. Moreover,

The Landscapes of Ayahuasca in Contemporary France  115 this demonstration of force by State authorities and its actors, who commit themselves to protecting and ensuring a “majority” view of the world, treats adults as children. We note that the relation of French society to the issue of cults is expressed by a semantic arsenal that is both pathological and prophylactic (as also reported by the people we interviewed, expressing their fear of talking about the subject of ayahuasca). In French political and media discourse, the pairing of regulation and protection is of great importance. This combination appears to us to be in the same category and applies the same logic as that of the War on Drugs; a logic that we cannot support. Nor do we support conditional respect for all types of human practices or behaviors on the pretext of avoiding prejudice and respecting every choice; that is not what we are saying. Rather, the historic (not natural) and political journey that causes some things at some moments to play certain roles in society must be understood. Ethnopsychoanalysis helps us to move past the cultural relativization or psychiatrization of the culture, but it also teaches us that a society can fall ill. The question then, beyond the case of France, is, what kind of regulation can a democratic State ask for and for what purpose? How far can a secular State go in its actions to facilitate or impede the expression of identityrelated particularities? The French bodies fighting cults are aware of the singularity of their actions compared with those in other countries. They present themselves as a vanguard, France as a pioneer, ready to export and offer to the rest of the world one of its most recent discoveries: the opposition to totalitarian and manipulative cults that, following the French model, all democracies should combat. In Brazil and in other countries, the publication of a list identifying certain groups as fitting a profile labeled “possibly dangerous” would be considered a violation of their freedom of thought and religion and would probably be unconstitutional. In these countries, social or political perceptions do not construe cults, per se, a threat to society or its members (even though some individuals or ex-members might personally think so). In Brazilian society (as a whole, fairly sensitive to spiritual-religious practices of all sorts), the only battles against faith run amok or reprehensible acts within a religious group or in the name of a belief occur when they fit into the domain of criminal, civil, or administrative law. Currently in France, experiences with ayahuasca are most often talked about in association with either abuse by cults or drug dependence. Because they often do not dare to talk about it, it is difficult to provide care for people who might need it. The disciplined functioning of these religious organizations in Brazil appears to have helped to foster a more tolerant approach to the question of drugs, focusing less on the purely pharmacological aspects of psychoactive substances and more on the psychological status of those who use them, as well as on the geographic and socio cultural environment in which this consumption takes place. Despite occasional problems, which

116  Clara Novaes and Marie Rose Moro can always occur when large numbers of people come together for religious or spiritual reasons, whether or not they consume psychoactive substances, Santo Daime, the União do Vegetal, and the other religions that use ayahuasca appear to confirm that social control can effectively limit the negative consequences of drug use. The situation is different in France. Sébastien has described to us his long struggle with the French legal system in the hopes of seeing a day when Santo Daime will be legal in his country. After serving a prison sentence and seeing the Santo Daime treated as the equivalent to a dangerous cult, he has even thought of leaving France. Joseph, another French ayahuasquero we have met, is very interested in the history of psychoactive drugs throughout human history; he has written several articles for the French, always under a pseudonym. Aside from contacts with the Paris network, which is fairly neo-shamanic, he is careful, cautious, and never talks openly about psychoactive drugs. François, another Frenchman whom we interviewed for our research, has not hidden his fears of talking about this subject in his own country; he dreams of the day when he can become a shaman and practice this craft in France. Like Joseph, he is counting on a scientific approach to legitimate these practices. Although most of the Brazilian population calls itself Catholic, there is not only great tolerance but even active participation in a wide variety of religious groups of diverse origins. Many Brazilians appear to be attracted to spirituality. Although they may have some difficulty explaining what it is they believe in, few consider themselves atheists. In France, on the other hand, mistrust of religions is much stronger. We have nonetheless remarked on the importance among Brazilians of some wandering in this ayahuascaassociated quest for self; a quest mixed with the search for diverse places, multiple meetings, and different ways of living the experience of ayahuasca, even for those with a regular group. There appears to be a constant fear of freezing or rigidification, together with a desire to avoid becoming religious or fanatical or always meeting the same people. The watchword appears to be “have several beliefs but don’t become a zealot.” In the Netherlands, where the Santo Daime has been established for years and where it successfully fought for the legalization of ayahuasca, daimistas are in closer proximity to the Brazilian ayahuasca culture than in France, where it is associated especially with Peruvian shamanism. Santo Daime is frowned upon by many French people who are interested in ayahuasca. Sébastien, the head of Santo Daime in France, does not hide the existence of the gap between himself and his compatriots who use ayahuasca and not the sacramental tea daime. In France, there is mistrust of all that might be syncretic, as Santo Daime and other urban Brazilian practices are perceived to be. To our knowledge, the different French groups have never assembled to work together to try to obtain legislative changes. There is thus, on the one hand, Santo Daime, which is a little isolated, and, on the other hand, the groups that are more what anthropologists call neo-shamanisms, in

The Landscapes of Ayahuasca in Contemporary France  117 which, in particular, the shamanism of the Shipibo-Conibo remains the principal influence. A one-day conference devoted to ayahuasca at the Ecole Normale Supérieure at Paris on March 19, 2011, focused on its scientific aspects. Its title “The scientific stakes of ayahuasca” interested us, expressing as it did the impasse of the social sciences in the contemporary world. Hearing the word “scientific” inspires immediate visions of important findings about areas of the brain that will enable new discoveries and prove the interest of ayahuasca to all humanity. On this occasion, the filmmaker Jan Kounen, a well-known French ayahuasquero responsible for one line of ayahuasquero discourse in France, recounted his relation to this beverage as an indigenous medicine. For him, ayahuasca is important, among other things, to his film work. He read passages from his latest book, then in press: a book of advice to Westerners thinking of going to the Amazon. Kounen underlined the precautions to take and his exclusive interest in the shamanism of ayahuasca among the ShipiboConibo. Kounen had an important influence on the stories told by Joseph and François during the research interviews we conducted with them. At the same conference, Romuald Leterrier, an independent French ethnobotanical researcher, also talked about his personal experiences with the Shipibo-Conibo. He developed the concept of “the spirit of the plant,” the notion of the cosmos as a great brain, and ayahuasca as the key tool that could be used in scientific research to provide information for humans. He thinks of the icaros (sacred songs) as “navigational tools” to guide the experience. Like Kounen, Leterrier highlighted the “the demands of ayahuasca”; both wanted to warn that these experiences are neither recreational nor easy and that they must be taken very seriously. Leterrier evoked Jungian concepts such as synchronicity and archetype. He then described his personal experience with ayahuasca; very rich, from a phenomenological perspective. Nonetheless, his idea of a scientific procedure around ayahuasca seems important to us. He had asked a Shipibo shaman to participate in research that he wanted to begin with a group of scientists. The shaman not only refused but answered that he had nothing to prove, to anyone. Leterrier concluded that it would be easier to pursue his “scientific research” with the new Western practices of ayahuasca. Or, perhaps, the indigenous shaman was right? What does this desire to legitimate practices that have existed since the dawn of time tell us? That said, we are not opposed to scientific research on ayahuasca, quite the contrary. It is rather the nature of this desire that we questioning here. It, too, shows something about the world we live in, where scientific discourse (preferably biomedical) must always prevail, always determine what is legitimate or not, feasible, viable, insane, or sane. Finally, why have we mentioned Jan Kounen and Romuald Leterrier? These two men have an important place in the Parisian ayahuasca scene we encountered during our research. They are well-known, they

118  Clara Novaes and Marie Rose Moro publish books, and they inform a large number of French people about this Amazonian brew. They illustrate a particular European, or at least French, discourse that is being constructed around these practices. But, above all, because, astonishingly, these authors are basically talking about the same thing as most Brazilian ayahuasqueros. This desire for scientific legitimacy is also presence in the Brazilian discourse, especially that of the União do Vegetal, which has a medical department and includes more than a few physicians among its followers. As we have shown, the scientific approach of the UDV played a major role in enabling the authorization of ayahuasca in religious settings in Brazil. All the other groups are grateful to them for this. But it intrigues us nonetheless. How far does the role of the scientific paradigm extend in this passage, in this encounter of cultures: Amazonian with urban, traditional medicine with Western medicine? What alienation is asserted there? Ayahuasca is part of the world as it is becoming. The question is no longer whether the exportation of these practices is a good thing. Today, the question is, rather, how it fits into the world. These spiritualist ayahuasca subjectivities— Brazilian, French, European—are part of contemporary subjectivities; what is needed is to think about them seriously, rather than either deny them or advocate their eradication. For example, the individual accounts of ayahuasca of Jeanne, who is Brazilian, and Joseph, who is French, explicitly share two things: the particular experience of finding oneself on an operating table, and then the idea that the vomiting is the possibility of purging one’s anxieties, fears, and trauma. We do not claim to either understand or know how these two people, without sharing the same cultural references, could describe such similar aspects of their experiences in different cultural contexts, and we do not seek to know what area of their brain might have been touched to induce such an experience. What matters is to think about the presence in the world these experiences with ayahuasca open in both São Paulo and in Paris. Both the Brazilians and the Europeans we met consider the urban rituals with ayahuasca to be an engine, a catalyst, or an exploration of consciousness and the unconscious (at least of a certain understanding of the unconscious), or as a door possibly opening to an area neighboring the unconscious. If the experience of ayahuasca seems indeed to trigger some foundational intensities in the neighborhood of the unconscious, and if, during these experiences, the unconscious can reveal itself somehow, everything moves into a different gear. Everything is accelerated or slowed, as if, simultaneously, everything makes sense and seems topsy-turvy. The experience comes close to the subjects’ “subjectify yourself” mode. It can allow them to relaunch a process of becoming more singular, more exceptional, more themselves and, at the same time, lead to new places, new territories. Still, neither the Brazilians nor the French deny the dangers of the experience of ayahuasca. They underline the prudence required to not become lost there, to enable the forging of new existential arrangements without too much force or pain.

The Landscapes of Ayahuasca in Contemporary France  119

Final Considerations The French ayahuasca religions and spiritualities, as described above, evoke a shifting landscape. Their participants, on the other hand, encounter much less flexibility and dialog from the French State and its strongly affirmed position. Sébastien tells us that he has often thought about the French situation in the history of the Santo Daime’s expansion. He considers his thoughts on this subject still incomplete. He theorizes that the French imagination prefers “exoticism with feathers” to an “old-school Catholic” ritual. The updated cultural dimensions of the Santo Daime are so typically Brazilian that it seems more logical to the French, who do not share the same cultural references, to adopt a shamanism considered “purer,” with less Christian influence; they would sometimes like to distance themselves from some dimensions of their own culture. For Brazilians, the point, perhaps, is not to break with the religious traditions of their cultural life but to rework them, give them new meanings, make semantic displacements. Patrick Deshayes (2006) spoke of a process of “reconnecting with one’s own history” for Brazilians and then of “breaking with one’s society” for foreigners. Perhaps something like that is what is going on. Nonetheless, the borders of the close and the faraway have held up. Surrealism and spiritualism were eminently French movements. And perhaps the foreigners Deshayes describes are updating, contemporizing things not unrelated to aspects, even distant, of their own history and their own country. If so, the Brazilians who want to reconnect with something must be breaking with what is blocking them from this reconnection. For the Brazilian, perhaps, the point is not to create a cleavage between nature and culture and choose one side, but rather to manage to find ways to live the contradictions without having to destroy them. The urban ayahuasqueros—French, Brazilian, and European—are laying out a map of a contemporary ascetic enterprise (Foucault, 2001) that will bring together a broad range of techniques for reaching new understandings of self, the other, and the world. If opening themselves to self-knowledge remains the project that runs through the subjectivity of these persons, independently of their culture, it is much more in and by their culture than by any legalistic angles that they will (or will not) find a means of expressing this project. The Brazilian anthropologist Eduardo Viveiros de Castro (2002) teaches us that every experience of another culture offers us the occasion to experiment with our own.

References Agamben, G. (2008). Qu’est-ce que le contemporain? [What is the contemporary?]. Rivages. Baud, S. (2009). Chamanisme et plantes psychotropes parmi les Awajun (groupe Jivaro, Pérou) [Shamanism and psychotropic plants among the Awajun (Jivaro group, Peru)]. Phytothérapie, 7, 20–25.

120  Clara Novaes and Marie Rose Moro Bois-Mariage, F. (2002). Ayahuasca, une synthèse interdisciplinaire [Ayahuasca, an interdisciplinary synthesis]. Psychotropes, 1(8), 79–113. Bourgogne, G. (2011). One hundred days on ayahuasca in France: The story of a legal decision. In B. C. Labate & H. Jungaberle (Eds.), The internationalization of ayahuasca (pp. 353–363). Lit Verlag. Callaway, J. C., McKenna, D. J., Grob, C. S., Brito, G. S., Raymon, L. P., Poland, R. E., Andrade, E. N., Andrade, E. O., & Mash, D. C. (1999). Pharmacokinetics of hoasca alkaloids in healthy humans. Journal of Ethnopharmacology, 65(3), 243–256. Chaumeil, J. -P. (2003). Chamanismes à géométrie variable en Amazonie [Shamanisms with variable geometry in the Amazon]. Revue Diogène,Chamanismo, Coll Quadrige/PUF. Commission d’enquête sur les sects [Commission of Inquiry into Cults]. (1995). Rapport enregistré à la présidence de l’assemblée nationale le 22 décembre 1995) [Report registered at the presidency of the national assembly on December 22, 1995]. http://www.assemblee-nationale.fr/rap-enq/r2468.asp Deshayes, P. (2006). Les trois mondes du Santo Daime [The three worlds of the Santo Daime]. Socio-Anthropologie, 17–18, 61–83. http://socio-anthropologie. revues.org/index451.html Dupuis, D. (2016). Les murmures de l’ayahuasca. Parcours rituel et transmission culturelle à Takiwasi [The murmurs of ayahuasca: Ritual journey and cultural transmission in Takiwasi] (Doctoral dissertation). École des Hautes Études en Sciences Sociales. Esquerre, A. (2009). La manipulation mentale – Sociologie des sectes en France [Mind control: Sociology of cults in France]. Éditions Fayard. Foucault, M. (2001). L’herméneutique du sujet [The hermeneutics of the subject]. Gallimard/Seuil. Hervieu-Léger, D. (2001). La Religion en miettes ou la question des sectes [Religion in crumbs or the question of cults]. Calman-Lévy. Kounen, J. (Director). (2004a). D´autres mondes [Other worlds] [Film]. Kounen, J. (Director). (2004b). Blueberry, l’expérience secrète [Blueberry, the secret experience] [Film] Labate, B. C. (2004). A literatura brasileira sobre as religiões ayahuasqueiras [The Brazilian literature on ayahuasca religions. In B. C. Labate & W. S. Araujo (Eds.), O uso ritual da ayahuasca [The ritual use of ayahuasca] (pp. 231–273). Mercado das Letras. Labate, B. C., & Feeney, K. (2011). Ayahuasca and the process of regulation in Brazil and internationally: Implications and challenges. International Journal of Drug Policy, 23(2), 154–161. https://doi.org/10.1016/j.drugpo.2011.06.006 Labate, B. C., Rose, I., & Santos, R. (2008). Religiões ayahuasqueiras, Um balanço bibliográfico [Ayahuasca religions: A bibliographic assessment]. Mercado das Letras. Laplantine, F. (2007). Ethnopsychiatrie psychanalytique [Psychoanalytical ethnopsychiatry]. Beauchesne. Miviludes (Mission interministérielle de vigilance et de lutte contre les dérives sectaires). (2005). Rapport au Premier Ministre [Report to the Prime Minister]. http://www.derives-sectes.gouv.fr/sites/default/files/publications/francais/ Rapport_MIVILUDES_2005-2.pdf.

The Landscapes of Ayahuasca in Contemporary France  121 Miviludes (Mission interministérielle de vigilance et de lutte contre les dérives sectaires). (n.d.). FAQ. http://www.derives-sectes.gouv.fr/faq. Novaes, C. (2005–2006). L’expérience de l’ayahuasca et ses « états modifiés de conscience » : Une étude transculturelle des récits des usagers urbains de l’ayahuasca. Une lecture à travers le concept de l’inconscient selon Gilles Deleuze [The experience of ayahuasca and its modified states of consciousness: A transcultural study of the narratives of urban ayahuasca users. A reading applying Gilles Deleuze’s theory of the unconscious] (Master’s thesis). Université de Paris 13. Novaes, C. (2011). L’Expérience urbaine de l’ayahuasca, Paysage des subjectivités contemporaines, Approche ethnopsychanalytique [The urban experience of ayahuasca, landscapes of contemporary subjectivities, psychoanalytic approach] (Doctoral dissertation). Université Paris Descartes Sorbonne Paris Cité. Novaes, C. (2018). Paysages mosaïques. Des religions ayahuasqueiras brésiliennes aux nouveaux agencements spirituels [Mosaic landscapes: From Brazilian ayahuasquera religions to new spiritual assemblages]. In S. Baud (Ed.), Histoires et usages des plantes psychotropes [Stories and uses of psychotropic plants] (pp. 290–307). Imago. Viveiros de Castro, E. (2002). O mármore e a murta, Sobre a inconstância da alma selvagem [The marble and the myrtle: On the inconstancy of the wild soul]. In A inconstância da alma selvagem e outros ensaios de antropologia [The inconstancy of the wild soul and other anthropological essays]. Cosac & Naify.

7 Ayahuasca and Freedom of Religion in Australia Entheogens in a Post-Colonial Shadow Amar Dhall, Torsten Wiedemann and Manav Satija Introduction The framework that regulates the use of ayahuasca in Australia comprises various sources of law at the federal, state, and territory levels. The interaction between these different levels of regulation can be confusing, especially when it comes to enforcing these laws. Understanding the legal implications of using ayahuasca in the specific context of religious or spiritual ceremony adds a substantial layer of complexity, as one needs to understand not only the regulatory framework relating to ayahuasca more generally but also the extent and nature of the protection of freedom of religion (FOR) under Australian law. FOR is protected, albeit limitedly, at the federal level and in at least two Australian states/territories. While s116 of the Australian Constitution creates a prima facie freedom of religion, the effect of this provision on the interpretation, application, and enforcement of other laws is not immediately evident. The Australian Constitution was explicitly written to federate six separate colonies (which later became the states) into one nation-state. The preservation of individual rights was not the specific focus nor intention behind the Constitution. As it currently stands, Australia stands apart from all other modern liberal democracies in having no federal Bill of Rights. This adds layers of complexity to a FOR-based challenge to the status-quo as Constitutional rights, such as that provided under s116, tend to be applied narrowly. FOR is also fundamental in international human rights treaties to which Australia is a party; however, the extent to which ratification of these instruments has any real effect at the domestic level is limited. Thus, the uneasy situation exists where consumption of ayahuasca, irrespective of whether it is used in a religious context, is subject to a blanket ban in Australian domestic law, even though Australia has ratified relevant international treaties that seem to protect the rights of Australian citizens engaging in religious ceremonies and practices. It also must be noted that Australia was settled violently, and her Constitution was drafted within the epoch in which many colonial powers

122

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Ayahuasca and Freedom of Religion in Australia  123 leveraged the expansion of their empires by systematically undermining and destroying indigenous cultural norms and spirituality. Despite the appearance of pluralistic multiculturalism in contemporary Australia, a conservative Christian hegemony is still very much evident in the political-legal discourse in Australia, as evidenced by the recitation of the Lord’s Prayer at the start of every parliamentary sitting. Any successful challenge to the status quo will have to navigate this landscape of embedded biases and unspoken prejudice artfully to rebirth a truly diverse Australia freed from its blood-soaked colonial roots. This chapter will tease out the complex relationships between various levels of regulation and legislation across all Australian jurisdictions to make the state of ayahuasca regulation clear in 2020. The legal grounds for protecting religious or sacramental usage of ayahuasca under Australian laws relating to FOR, and the extent of that protection, will be considered. Finally, the failed 2017 submission to the Australian TGA made by the União do Vegetal (UDV) will be briefly revisited to understand its shortcomings.

Ayahuasca Use in Australia In its strictest definition, the use of ayahuasca is quite rare in Australia, limited chiefly by the restricted availability of the two traditional ingredients, Psychotria viridis and Banisteriopsis caapi. The restrictions on the importation of these ingredients tend to limit ayahuasca usage to small groups who are either ignorant or defiant of relevant Australian laws. This includes small groups of Santo Daime (SD), União do Vegetal (UDV) followers, and ayahuasca tourists who have returned from South America with a passion for traditional ayahuasca. Fully prepared ayahuasca is often imported from Peru in a dehydrated paste form. Mislabeled, it readily passes Australian customs controls and comes, in its concentrated form, in a tiny package. The primary detection equipment at customs does not appear to identify either harmaline or dimethyltryptamine (DMT). Accordingly, concentrate is only ever detected if there is a reason for suspicion that justifies secondary analysis. Hence, border detection of such imports is exceedingly rare. There is, however, far more widespread use of ayahuasca analogs in Australia. Local botanical sources of DMT are often combined with Peganum harmala obtained from ethnic grocers or, to a much lesser extent and more recently, with locally grown B. caapi. Over the years, DMT source trees have become better yielding, and more regionally available species have been discovered. The original scientific papers of the 1960s mentioned Acacia maidenii (Muell et al., 1965) and the rare Acacia phlebophylla (Muell et al., 1967), but ethnobotanical enthusiasts discovered DMT in Acacia obtusifolia in the 1990s, and have since found higher yielding species such as Acacia courtii, Acacia acuminata, and several others. These species cover most

124  Amar Dhall et al. habitat types, making botanical source material available in most parts of Australia. Some require extraction and purification for safer use, while others are brewed as crude tea in the same way P. viridis is used. Periodically, some online sellers offer imported Acacia confusa bark. Some are adamant they are not breaking any laws, while others are motivated by the potential profits despite the risks. Eventually, law enforcement shuts them down, leaving a market opportunity for the next seller. The two ayahuasca analog components are not always combined in the same brew. Peganum harmala seeds are often simply chewed and swallowed half an hour before the DMT-containing material is consumed. The DMT component is often consumed as crudely crystallized tryptamine alkaloids, especially if their botanical source was tannin-rich bark material rather than Acacia phyllodes (Acacias have mostly phyllodes rather than true leaves). Such reasonably accurate dosing with relatively pure and predictable material allows for individually tailored experiences. Ayahuasca analogs are widespread in Australia and probably eclipse many other Western countries with less restrictive laws on botanical source materials. Such use is common in the alternative lifestyle and music festival communities. Facilitators often provide ayahuasca and ayahuasca analog brew rituals in small groups. The facilitators are rarely trained by any traditional shaman and often don’t have any other spiritual leadership background. They are usually enthusiastic ayahuasca users who believe in the benefits of the experience and want to share it with the broader community. It is rare for facilitators to have any formal counseling or medical knowledge, which occasionally leaves participants in psychological or physical peril, but this is rare. Facilitators may use a variety of spiritual or ritual overlays or may lack these entirely. Many Australian participants prefer an ayahuasca experience without religious or spiritual frameworks, but in contrast, they often seek such authenticity when traveling to South America for the occasion. Participation in SD and UDV rituals is limited mainly to individuals who have already been initiated in Brazil, and the Australian groups are mostly Brazilian migrants and visitors. Some individuals prefer to experience ayahuasca alone or in an intimate setting with people they know well. Many participants of the facilitated groups end up being more selective about the people they share their experience with, eventually organizing their own mini-rituals. While not defined as ayahuasca, there is another use of the combination of DMT and harmaline/harmine that plays an important role in Australia. A smokable herbal mix of DMT and harmaline soaked onto herbs invented in Australia and referred to as changa provides the user with a short experience that approximates some of the effects of ayahuasca brews (Palmer, 2014). Changa is often the way curious seekers are introduced to the experience, and it appears to play a significant role in the popularity of ayahuasca in Australia (St. John, 2015).

Ayahuasca and Freedom of Religion in Australia  125

Australian Drug Laws The framework relating to drug laws in Australia is complex. It consists of legislation at the federal and state level and is distributed over multiple acts and jurisdictions. As will be explored in more detail later in this chapter, the Australian Constitution was established to allocate power and responsibilities between federal and state/territory governments. Section 51 of the Constitution sets out the topics or “heads of power” that the Federal Commonwealth can exclusively legislate on; any subject outside of this list remains the domain of the states. Significantly, religion is not one of the enumerated heads of power. The majority of health and drug laws are state-based; however, there are notable exceptions, as will be presently seen. The federal government has created a “Poisons List” that identifies substances deemed toxic and made illegal. The Poisons List incorporates the Standard for the Uniform Schedule of Medicines and Poisons (SUSMP) made by the Therapeutic Goods Administration (TGA) (TGA, 2016). It has no actual legal standing itself but is adopted by the states and incorporated into relevant legislation. Schedule 9 of the SUSMP includes substances that have a potential for abuse and covers many illegal drugs in the drug acts. Generally, several common offenses of possession, use, manufacture, supply, and importation of drugs can be found in state and territory-based legislation. The objective seriousness of an offense relating to possession, use, manufacture, supply, or importation is ordinarily measured with reference to the type of drug and the quantity of the drug. In most legislation, drugs are categorized by type in different schedules; each contains substances based on their assumed qualitative harmfulness. While the classification regime relating to quantity differs slightly across states, the standard formula for measuring amount is to determine by weight whether an amount of drugs is a small, trafficable, commercial, or large commercial quantity of the drug. The quantity of the drug contributes to the objective seriousness of a criminal matter and carries with it a presumption of the intended use. If a person is found, for example, to hold a trafficable quantity of a scheduled substance, then the legal presumption, until the defendant can prove otherwise, will be that they intend to supply the drug rather than personally use it.

Federal Drug Laws Part 9.1 of the Criminal Code Act 1995 (“Cth”) aims, among other things, to prevent the import and export of “border-controlled” drugs. The range of border-controlled drugs is similar to that in state-based legislation, such as the Drug Misuse and Trafficking Act 1985 (NSW). The emphasis of

126  Amar Dhall et al. these provisions is on the importation or attempted importation of bordercontrolled drugs or border-controlled plants, and separate offenses are provided for the importation of a commercial quantity (s307.1), a marketable quantity (s307.2), and in relation to any other quantity (s307.3). To be found guilty of one of these offenses, the prosecution must prove beyond a reasonable doubt that the defendant imported a border-controlled substance and knew the substance was border-controlled or was reckless as to whether or not it was a border-controlled substance. The legislation defines “import” such that it includes bringing the substance into Australia, as well as “to deal with” the substance in connection with its importation. Accordingly, the Act also provides offenses related to the possession of a commercial quantity (s307.5), a marketable quantity (s307.6), or in relation to any other quantity (s307.7) of imported border-controlled drugs or imported border-controlled plants. The term “reckless” means that the defendant foresaw a substantial risk of the substance being a border-controlled plant but went ahead with their actions regardless. This provides the basis for the prosecution arguing, for example, that the importation of DMT and harmaline cannot be excused based on the defendant’s ignorance of their scheduling status. Schedule 2 of the Criminal Code Regulations 2019 (Cth) lists DMT and harmaline as border-controlled drugs for the Criminal Code Act 1995 (Cth). Accordingly, relevant offenses under ss 307.1, 307.2, 307.3, 307.5, 307.6, or 307.7 can be charged in relation to the importation or possession of imported DMT and harmaline. The interplay between this legislation and relevant state/territory criminal legislation becomes complex in practice. A separate offense is created under s308.1 of the Criminal Code Act 1995 (Cth) in relation to possessing a controlled drug (as opposed to a border-controlled drug). Schedule 1 of the Criminal Code Regulations 2019 (Cth) lists DMT, but not harmaline, as a controlled drug for s308.1. Section 308.1 seems to have the sole purpose of allowing a possession charge that would ordinarily be dealt with under the relevant state/territory jurisdiction to be instead dealt with alongside other federal offenses. However, prosecutors still often seek to split charges and prosecute possession charges under applicable state law rather than the Federal statute. Before the enactment of the Criminal Code, the primary statute that dealt with offenses related to the import and export of prohibited substances was the Customs Act 1901 (Cth); however, since the Criminal Code, many crimes, particularly those relating to the import and export of narcotic substances, have been repealed from the Customs Act and placed into the Criminal Code. The Customs Act, however, still contains several offenses related to prohibited imports and exports at section 233(b) and (c) that are routinely used, and it seems, sometimes favored, over equivalent offenses in the Criminal Code in the prosecution of crimes related to psychoactive plants and analogs.

Ayahuasca and Freedom of Religion in Australia  127 When a prosecutor exercises a preference to deal with particular imports as “prohibited imports” under the Customs Act, rather than as a “bordercontrolled drug” under the Criminal Code, one could infer any number of things. It could, for example, suggest that prosecutors are uncomfortable with categorizing substances like DMT and harmaline at the same level of objective seriousness as traditional narcotic substances. Another reason could be that prosecutors prefer the expediency of the sentencing process provided by section 233AB(1) of the Customs Act, which provides a capped, fixed formula for courts to determine appropriate fines for offenses under s 233(b) and (c). Such penalty provisions not only allow violations to be dealt with in an efficient manner that does not involve a custodial sentence but also, perhaps, relieves the court and law enforcement agencies from the daunting task of sentencing appropriately about rare substances that are generally not well understood.

State and Territory Laws DMT and harmala alkaloids are scheduled, to some extent, in every state and territory in Australia. The definitions and classifications of precisely what is scheduled vary between each state. The following table outlines how each different state/territory approaches the scheduling of DMT and harmala: State/ Territory

What is scheduled

Name of Legal Instrument

Comments

Queensland

DMT; harmaline

Drugs Misuse Act 1986 (Qld); Drug misuse Regulation 1987

Any “thing” that contains a scheduled substance is deemed to be that substance.

New South Wales

DMT; Drug Misuse harmaline/ and harmine Trafficking Act 1985 (NSW)

Victoria

DMT; Drugs, harmaline/ Poisons and harmine Controlled Substances Act 1981 (Vic)

Harmaline & harmine are scheduled at quantities similar to LSD, so the highest penalty bracket starts at a mere 2 g, which is equivalent in severity to 1 kg of heroin. Any preparation that contains an illegal substance is deemed to be that substance.

(Continued)

128  Amar Dhall et al. State/ Territory

What is scheduled

South Australia

DMT; Controlled harmaline/ Substances harmine Act 1984 (SA); Controlled Substances (Controlled Drugs, Precursors and Plants) Regulations 2014 (SA) DMT; any Misuse of substance Drugs Act listed in 1981 (WA) s9 of the SUSMP DMT, Misuse of harmala Drugs Act alkaloids 2001 (Tas) DMT, Misuse of harmaline/ Drugs Act harmine 1990 (NT)

Western Australia

Tasmania Northern Territory

Australian Capital Territory

Name of Legal Instrument

Criminal Code DMT, Regulation harmaline/ 2005 (ACT) harmine, Ayahuasca vine

Comments There is a wide scope to this legislation as it includes any “substance” that contains these compounds. The act defines “substance” to include live plants.

s9 of the SUSMP includes harmala alkaloids

This includes all preparations but does not appear to include live plants This includes any substance that contains the scheduled drug. The Act also states that any plant that contains a scheduled drug is a prohibited plant. This includes any substance that contains the scheduled drug.

Enforcement of Australian Drug Laws Relating to Ayahuasca While the drug laws relating to ayahuasca are stringent in Australia, it is difficult to provide a clear picture of how these laws are being enforced in practice. This is mainly due to the lack of reported cases relating to the prosecution of ayahuasca and DMT/harmaline-related charges. In the absence of such evidence, the authors engaged in confidential personal communication with five separate defendants who were prosecuted for relevant offenses between 2005 and 2017 to obtain an anecdotal outlook on how these laws were being enforced. Only one such case was ayahuasca imported in its traditional liquid brew form. The defendant faced several charges under NSW drug laws in the NSW Local Court jurisdiction regarding two doses of ayahuasca imported

Ayahuasca and Freedom of Religion in Australia  129 in a 2-liter bottle. The charges included importation, possession, and supply. Due to the minuscule dosage amount required for harmaline in NSW law and the fact that admixtures (e.g., water) are assumed to be included in drug weight, the offense was considered, at least at the first instance, at the highest level of severity. This initial assessment of objective seriousness, combined with the fact that the defendant was charged with several different charges, including importation, possession, and supply, led to the imposition of restrictive bail conditions. The authors also do not know which charges the defendant was ultimately sentenced with. Nevertheless, the outcome of this matter was that the charges were found proven; however, the defendant was released without conviction and placed on a two-year “good behavior” bond. Based on the information that the authors have received, seizures and charges for DMT or harmaline-containing plants are more common than charges relating to ayahuasca, both as imports and in possession. Anecdotal accounts of cases in Victoria, NSW, and Queensland suggests that in these states, prosecutors have often appeared hesitant to pursue charges for DMT/harmaline, at least in the circumstances where the defendants were also charged with offenses relating to other more common substances. The authors were told, for example, that charges for indictable quantities of DMT had, on some occasions, been dropped where the defendant entered guilty pleas for minor personal amounts of ketamine, cannabis, or MDMA. It is essential to state that these outcomes do not necessarily imply that Australian courts look upon ayahuasca or DMT/harmaline-related offenses leniently. Prosecutors routinely drop some drug charges in favor of other drug charges to have matters completed in an expedited way through a guilty plea and sentencing. Judges are also bound to formulate sentences in criminal matters based on several factors, including the objective seriousness of the case, the defendant’s prior offending history, any prior good character, and circumstances where deterrence from reoffending is not a consideration. That being said, two different hypotheses relating to ayahuasca and DMT/harmaline offenses could be made based on the anecdotal accounts collected. The first is that prosecutors are not overly keen to pursue these charges in court; this could be related to the relative obscurity of the substances themselves or other factors. The second is that ayahuasca and DMT/harmaline offenses do not appear to attract some extraordinary notion of harmfulness or seriousness in judges’ eyes.

Freedom of Religion in Australia There are three relevant sources of law pertinent to FOR in Australia. The first is the Australian Constitution, the second is state/territory-based human rights legislation, and the third is relevant international human rights treaties to which Australia is a party.

130  Amar Dhall et al. Australian Constitution Australia’s system of government is a constitutional monarchy. When it was settled, it was not settled as a single country, but instead, was initially established as six separate colonies. In 1901, these six colonies were federated into a single nation-state, with each of those colonies becoming one of the states in what became known as the Commonwealth of Australia. The document that empowered this change was the Federal Constitution. However, unlike the US constitution, the Australian constitution was not intended to create rights and state the liberties of Australian citizens. The purpose of the Australian constitution was to allocate power between what had, up until federation, been independent British colonies and the newly created federal parliament. Consequently, there are very few rights explicitly written into the Australian constitution. Without this context, it is often shocking to people who become aware that Australia is the only modern liberal democracy in the world without either a Bill of Rights as part of our constitution or Commonwealth-level protection of human rights in the form of legislation. While disturbing, this does not mean that there are no federal protections available to citizens of Australia; instead, there is a mosaic of protections spread across the Australian constitution and Federal legislation, and some protections are emerging from case law (i.e., common law). Of relevance to the discussion in this chapter is s116 of the Australian constitution, which states: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth. Reading the two relevant phrases in s116 together, “The Commonwealth shall not make any law… prohibiting the free exercise of any religion…” may evoke the sense that there is wide-ranging protection of FOR in Australia. However, a closer study reveals this is not the case. Before looking at the state of the law relating to the two phrases, it is salient to acknowledge Evans’ (2009) two global observations about the narrow scope of the freedom afforded under s116 that are relevant to the current discussion. First, she identified that s116 applies only to laws the Commonwealth passes and does not bind the states (i.e., states can make laws that establish a religion, impose religious observance, and so on). The second reason is that the Australian High Court has interpreted s116 “very restrictively so that it has little force” (Evans, p. 6). In simple terms, this is because the High Court has taken the view that they will not strike down laws that merely have the impact or effect of prohibiting or restricting religious freedom; rather, the law must have the explicit purpose of limiting religious freedom. This point

Ayahuasca and Freedom of Religion in Australia  131 will be made more evident in the following discussion. The keywords from s116 that warrant further investigation when contemplating a FOR-based claim in favor of the UDV are “prohibiting,” “free exercise,” and “religion.” “Religion” The scope of protection afforded by s116 is restricted only to religious beliefs. This has the effect of limiting a claim of a breach of s116 to a recognized religion in Australian law. It would seem that the prima facie case to establish the UDV as a religion is strong because of the UDV’s fusion of Christianity (i.e., a recognized religion) with what had been an indigenous spiritual technology. However, this also means that other individuals or groups making s116 claims concerning the sacramental use of ayahuasca who are not associated or connected with a recognized religion may face difficulty in these claims on this basis. The High Court case of the Church of the New Faith v Commissioner of Pay-roll Tax (Vict) (“the Scientology Case”) gives the most careful consideration of the definition of religion for Australian law. This case related to a tax-exempt status claim for “religious institutions” under Australian tax law made by the Church of Scientology. The Commissioner of Payroll Tax had the view that Scientology was not a religion for the purposes of this exemption. This decision was challenged. In their judgment, the Justices of the High Court provided three distinct definitions of religion. The combination of these three tests provides the current legal standard against which the question of whether or not a particular belief system, such as the religion practiced by the UDV, could make a claim using s116 of the Australian constitution as a basis. Chief Justice Mason and Justice Brennan provided the first test at [136] namely, that there is “belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief.” The Justices noted at [141] that, of primary importance, was the sincerity of the adherents to the faith, rather than the existence of any additional criteria. The second test was provided by Justices Wilson and Deane at [173], who based their test on indicia “derived by empirical observations of accepted religions.” Their test likewise requires a belief in the supernatural, but also considered it essential that the religion offers insight into man’s relationship to the supernatural and our relationship to our place in the universe. They also asserted at [174] that other indicia should be considered, such as the necessity for a religion to specify a code of conduct for its believers and that those believers constitute an identifiable group. Justice Murphy articulated the third test. Rather than setting out criteria that need to be met for a belief system to be classified as a “religion,” Murphy J stated at [151] that the Court required only to “state what is sufficient, even if not necessary, to bring a body which claims to be religious

132  Amar Dhall et al. within the category.” Aside from the need for a group of people to practice their system of beliefs as a religion, Murphy J stated at [151] that it was sufficient that the beliefs or practices are a revival of, or resemble, earlier cults…[if they]… believe in a supernatural Being or Beings [including the worship of a God, spirit, or the stars]…if they “claim to be religious and offer[s]…a way to find meaning and purpose in life or if they are indigenous religions. This last aspect of Murphy’s judgment provides a possible basis for a FOR-based argument about consuming ayahuasca by entheogen users who fall outside the so-called ayahuasca churches. However, it is not simply the case that this third test is so broad in scope that it automatically legitimizes all sacramental consumption of psychoactive substances as acts associated with a “religion.” Instead, Murphy’s judgment—which, to reiterate, was a minority view of the court—illuminates possible jurisprudential grounds to explore further in subsequent FOR-based discussions. “Prohibiting” When evaluating the scope of FOR protected under the Australian constitution, it is crucial to remain aware that the wording of s116 does not create a positive right in favor of freedom of religion; rather, it only prohibits the Commonwealth from enacting legislation that impinges upon the practice of a religion. What this means is, at best, the UDV (or anyone else asserting a FORtype argument under the Australian Constitution) can only argue that the scheduling provisions breach their FOR rather than maintain a positive FOR. It is, at this stage, essential to recall the previous discussion; specifically, that s116 cannot restrict the states from enacting such laws. Moreover, the Australian legal system adopts the doctrine of legislative supremacy that provides that Australia’s highest source of law is the legislation enacted by the federal parliament. The justification for this is that the legislation drafted by elected officials reflects the will of the voting public and, as such, is central to the “representative” part of representative democracy. Accordingly, if the court reads the current laws as not falling afoul of s116, then there is a high probability that other avenues for challenging the legitimacy of the existing provisions in common law freedom of religion arguments cases would be dismissed. “Free Exercise” Once the UDV (or anyone else seeking to use a FOR-based argument to argue for legal protection in relation to the consumption of sacramental ayahuasca) is granted standing to be heard, the primary issue becomes whether

Ayahuasca and Freedom of Religion in Australia  133 the type of conduct that can be protected under s116 can be extended to include the consumption of ayahuasca. It ought to be noted that the trajectory of the Australian High Court’s protection of beliefs under s116 has been narrowed over time, such as in the unreported case of Daniels v Deputy Commissioner of Taxation (2008) SASC 431. In this case, the South Australian Supreme Court dismissed a claim by a man who refused to pay part of his taxation bill on the basis that the money would be used to fund abortions. Daniels’ argument was based on the notion that the provision of abortions conflicted with his religious beliefs. The conduct he sought to protect was the partial non-payment of his taxation bill. This argument was rejected because the behavior was not sufficiently connected to the religious experience. This is an essential point upon which the sacramental consumption of ayahuasca can be distinguished, as drinking the brew is the sole gateway through which members of the UDV commune with the mystical. That being said, both the Jehovah’s Witness Case and the Scientology Case identified that the scope of s116 equally protects both religious conduct and belief. The test supplied by Mason ACJ and Brennan J at [135] in the Scientology Case is that the plaintiff must show a “real connection” between the conduct in question and the ontology of the religion to be protected under s116. Despite this recognition by the Australian High Court, no successful claim has yet been made using the “free exercise of religion” as the basis of the claim. The reason for this is that that court has adopted the view that the law being challenged has to have the restriction of religious freedom apparent on the face of the legislation.

State/Territory Based Human Rights Legislation In the absence of a Federal Bill of Rights, some Australian states and territories have enacted human rights legislation to protect the rights of people living in their jurisdictions. Victoria and the Australian Capital Territory (ACT) have enacted relevant human rights legislation. However, other states and territories are in the process of doing so at the time of writing this chapter. Both the Victorian Legislation (the Charter of Human Rights and Responsibilities Act 2006 [Vic]) and the ACT legislation (Human Rights Act 2004 [ACT]) contain an almost identical provision relating to FOR. The provision in the Victorian Charter reads: 14 of thought, conscience, religion, and belief 1 Every person has the right to freedom of thought, conscience, religion, and belief, including— a the freedom to have or to adopt a religion or belief of their choice; and b the freedom to demonstrate his or her religion or belief in worship, observance, practice, and teaching, either individually or as part of a community, in public or in private.

134  Amar Dhall et al. 2 A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice, or teaching. The relevant provision in the Human Rights Act 2004 (ACT) is also at section 14 and is identical, except for one minor difference. Whereas s 14(2) of the Victorian Charter says that “a person must not be coerced or restrained in a way,” s 14(2) of the Human Rights Act 2004 (ACT) says “No-one must be coerced in a way…” These provisions would appear, at first glance, to provide Victorian and ACT citizens with reasonably strong protection of their FOR in a manner that is not found at the Federal level. However, what is important to note is that both pieces of legislation have a somewhat limited purview in terms of what remedial action they could provide ACT and Victorian residents seeking to claim legal protection of their sacramental use of ayahuasca. Neither instrument creates a right of action regarding a breach of their human rights. Put another way, an ACT or Victorian cannot legally enforce a violation of s 14 or any other right included in the legislation in the courts. The purpose of both the Victorian Charter and ACT Human Rights Act is to ensure that new laws in both jurisdictions are being drafted and existing laws being interpreted to be compatible with the human rights of residents. In the ACT, a party to an existing proceeding under other legislation (a person cannot commence proceedings under the Human Rights Act by itself, they must already have some other proceeding before a court) can ask the Supreme Court of the ACT to consider the other legislation to determine whether it is compatible with the human rights contained within the Human Rights Act. If the Court finds the legislation incompatible, it can issue a Declaration of Incompatibility. Given that Declarations under the law are not legally binding, such a Declaration would not have the effect of invalidating the offending legislation. The process is identical in Victoria; however, they also add requirements concerning the scrutiny of proposed new legislation in that state. Any member of the Victorian Parliament introducing a bill into a House of Parliament must arrange for a Statement of Compatibility to be prepared concerning that proposed bill to ensure that parliamentarians voting on new legislation in Victoria are aware of its human rights compatibility. While these state/territory-based human rights instruments are undoubtedly a positive development in Australian law in the previously discussed absence of a Federal Bill of Rights, unfortunately, they provide little direct protection for the FOR.

International Human Rights Treaties Australia has certain international law obligations concerning the human rights of people within the Australian jurisdiction. These obligations arise

Ayahuasca and Freedom of Religion in Australia  135 because Australia is a signatory to particular international human rights law instruments. Of particular relevance in the present context is Australia’s obligations as a signatory of the International Covenant on Civil and Political Rights. Article 18 of the ICCPR provides: Article 18 1 Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others, and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching. 2 No one shall be subject to coercion that would impair his freedom to have or to adopt a religion or belief of his choice. 3 Freedom to manifest one’s religion or beliefs may be subject only to such limitations prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms. The normative content of Article 18 has been elaborated by the Human Rights Committee (HRC) in its General Comment 22: The right to freedom of thought, conscience, and religion (Art. 18). The HRC describes Article 18 as “far-reaching and profound” and in the following two relevant passages speaks to whom and what the provision covers: 2. Article 18 protects theistic, non-theistic, and atheistic beliefs and the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or religions and beliefs with institutional characteristics or practices analogous to those of conventional religions… 4. The freedom to manifest religion or belief in worship, observance, practice, and teaching encompasses a broad range of acts. The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such actions, including the building of places of worship, the use of ritual formulae and objects, the display of symbols, and the observance of holidays and days of rest. The combination of these two passages leaves little doubt that sacramental usage of ayahuasca would be considered a legitimate expression of religious belief for Article 18. There are, however, two significant factors that need to be considered to evaluate the effect of Article 18 in practice. The first relates to the effect and enforceability of Article 18 domestically within Australia, while the second relates to how Article 18 could be enforced internationally.

136  Amar Dhall et al. While Australia has agreed to be bound by major international human rights treaties, they do not form part of Australia’s domestic law unless explicitly incorporated into Australian law through legislation. What this means, in effect, is that Article 18, or any other provision in a treaty Australia has ratified, cannot be enforced in Australian courts until specific legislation is enacted to incorporate Article 18 into Australian law. This chapter has shown that no such legislation exists. The rationale behind this is that treaties are signed by members of the Executive branch of the Australian government while “making laws” is the sole responsibility and privilege of Parliament. As signing a treaty does not automatically make it Australian law, the question has long been asked what effect signing a treaty has domestically. In the case of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, the High Court attempted to resolve this question by applying the pre-existing administrative law doctrine of legitimate expectation to the scenario of treaties. The key passage from Teoh, which explains the doctrine in context, can be found at [291]: Ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, those administrative decision-makers will act in conformity with the Convention. The effect of this provision is that, even though Article 18 did not automatically become part of Australian Law when the ICCPR was ratified and has not been subsequently enshrined by domestic legislation, administrative decision-makers are subject to a legitimate expectation (as opposed to a legally enforceable obligation) to act in conformity with the provision. However, it is essential to note that, since Teoh, the Court has gradually narrowed the doctrine in subsequent cases. It is also important to note that this doctrine has generally been applied to give rise to a procedural rather than a substantive right (i.e., where a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires the person affected to be given notice and an adequate opportunity to respond to that course). This leaves consideration of how Article 18 could be enforced internationally. The First Optional Protocol establishes the enforcement mechanisms related to the ICCPR to International Covenant on Civil and Political Rights. Australia is a signatory to this Optional Protocol meaning that Australian citizens may bring a case relating to the breach of an ICCPR right before the HRC. Were an Australian citizen to bring such a claim and was successful, the HRC could find against Australia, but can only make recommendations to the Australian government about how it could amend

Ayahuasca and Freedom of Religion in Australia  137 its laws to comply with the ICCPR. This leaves it to the government’s will to comply with or ignore the HRC’s recommendation. Nonetheless, if a person bought such a claim about Article 18, the HRC would likely be faced with a question of reasonable limitations. International human rights law recognizes that few rights are absolute and reasonable limits may be placed on most rights and freedoms. Article 18(3) clarifies that the FOR can be subject to limitations as long as they are prescribed by law and necessary for the reasons provided. The restrictions on importation, possession, use and supply of DMT/harmala described in Part 2 of this paper are in place on the premise that these substances are, rightly or wrongly, considered to be dangerous to public safety. In the view of the authors, it is highly likely that if an Australian citizen were to make a claim before the HRC concerning a breach of Article 18 of ICCPR, the Australian Government would argue that the restriction on FOR was necessary to protect public safety and health, and therefore allowable under Article 18(3). Given the pervasive dominance in mainstream institutions of the idea that all psychoactive substances are harmful and dangerous, this is an argument that would likely be difficult to overcome.

The Socio-Legal Landscape There is a secondary challenge faced by those seeking to change the status quo: the process within the law of determining legality and illegality and a deeper, pervasive cultural shadow that feeds a general perception of psychoactive substances. This perception provides a simplistic and erroneous syllogism becoming embedded in cultural-legal discourse in Australia. Stated as simply as possible: All psychoactive drugs are harmful. Ayahuasca is a psychoactive drug. Therefore, ayahuasca is harmful. This perception is deeply integrated into the Australian zeitgeist. It has resulted in the systematic treatment of indigenous usage of entheogenic compounds as being in the same category as recreational drugs. The phrase “recreational drug” itself is a term that comes loaded with the baggage of decades of propaganda proliferated as part of the War on Drugs. While some people may be well informed of the nuances of the complex relationship between people and neuropharmacology, many people, including judges and politicians, are unaware of the full scope of entheogen usage discourse. There is also a startling lack of ethnic and gender diversity in the Australian judicial and political environment. The people who decide about Australia’s legal position on drugs are predominantly white, male, Christian, and middle class. This creates an insidious and subtle obstacle to overcome related to judges’ cognitive structures and functioning.

138  Amar Dhall et al. The theory of “legal coherentism” describes this mechanism. The ­primary purpose of a legal dispute is to synthesize complex matters to produce a binary statement of legality or illegality. This is an intricate process requiring a tremendous level of cognitive synthesis, utilizing the answers to the myriad questions that lead judges to their final decision. Decision-makers ultimately arrive at the conclusion they believe to be most compelling. This they do by discarding the possible interpretations of the matter that do not cohere with their preferred position. The position that the decision-maker will find most compelling is determined, not only by their legal reasoning but also heavily influenced by that person’s biological, religious, and cultural background. Putting this another way, judges make their decisions in response to the facts and evidence presented to them and make decisions that “fit” their pre-existing value frame. This aspect of legal decision making is not widely understood. As a result, judges will create and apply so-called “objective” tests without realizing their subjectivity in applying the law and reaching a decision. Simon (2004, p. 517) observes that the “cognitive system [of the judge] imposes coherence on complex decisions… throughout the decisionmaking process [emphasis original].” Because this occurs at every decision point along the way, “at the culmination of the process, the decisionmaker’s mental model is skewed toward conformity with the emerging decision” (Simon, 2004, p. 518). The decision-maker has a complex (cognitively) constructed network of concepts, ideas, beliefs, values, and responses to feelings. It is an unconscious cognitive process. Notwithstanding the growing weight of scholarly evidence showing the lack of harm caused by ayahuasca, one problem is the lack of ethnic and cultural diversity in the Australian High Court and the overrepresentation of moderately conservative, middle-class, white men with a traditional Christian value set. Given the homogeneity of the legal “fraternity” (the routine use of this term itself emphasizes our point), there is a limited scope for judges to understand and empathize with issues that are so vastly different from that experienced by the judges themselves, such as issues raised by someone wishing to use s116 as a way of protecting their ability to consume entheogens. While many judges strive to maintain as open a mind as possible, their cognitive structures mean that they will inevitably interpret and apply the law in a way that is coherent with their complex concepts, ideas, beliefs, and values.

UDV TGA Submission In early 2016, The Australian Therapeutic Goods Administration (TGA) received a request by the UDV to amend the scheduling of teas containing low concentrations (0.25 mg/mL) of DMT that would allow exemptions from the highly restrictive drug schedule. Fifteen individuals and

Ayahuasca and Freedom of Religion in Australia  139 organizations made submissions in support of this application, but ultimately, the TGA adopted the position that public safety overrides religious freedoms and maintained the existing restrictions. This application was poorly thought out in several regards. The submission, for example, only addressed DMT but neglected to seek an exemption for harmaline/harmine. It also failed to elaborate on the practicalities of producing such a low concentration tea without exceeding the proposed limits at any stage of the process. Low concentration also does not address total dose, which the TGA committee pointed out as a risk factor. Perhaps the most prominent issue was that the TGA relies on the states to endorse its proposed restrictions and enforce them under state law. In contrast, the UDV’s application focused on an Australia-wide constitutional FOR approach. Such an approach ignores the legislative landscape relevant to DMT regulation in Australia, but this FOR approach is difficult to argue for the reasons provided in this chapter. One positive outcome of this and previous applications, such as that previously made in relation to Salvia divinorum, is that the TGA is increasingly becoming well-versed in the concept of synthetic and natural entheogenic substances for shamanic and religious use, as is shown by their detailed responses.

Conclusion This chapter has attempted to demonstrate why the regulatory framework in Australia that applies to ayahuasca is complex and why FOR-based arguments relating to the sacramental use of ayahuasca are not straightforward to make. While there are some interweaving protections regarding FOR in Australia, these are not absolute and have historically been interpreted narrowly by Australian courts. Therefore, if advocates are to have any meaningful chance of success, the challenge is to engineer such legal arguments diligently and elegantly. Notwithstanding the limited basis for making such FOR-based claims, these pathways exist. To walk down them, advocates need to consider the law itself, as well as the broader socio-legal implications unique to Australia. Australia has a brutal colonial history related to First Nations peoples, and many deeply embedded institutional biases are present in the current legal and political system. These biases continue to invalidate indigenous ways of being, including notions of indigenous spirituality. As has been explored in this chapter, the other factor to consider is the homogeneity of the legal profession as predominantly white, Christian, and male. Judges from this background will inevitably interpret and apply the laws coherently with their beliefs and values. The “elegance” of any well-engineered legal arguments mentioned above would need to account for these factors.

140  Amar Dhall et al. This being said, there is little doubt that, as we move beyond 2022, the world is changing in many ways, not the least of which is the way psychoactive substances are being appreciated for how they bring about healing and spiritual insight. MDMA is undergoing clinical study in many jurisdictions. The Australian TGA is due to report in February 2021 on a submission made by the not-for-profit group, Mind Medicine Australia, seeking approval for MDMA and psilocybin-assisted psychotherapy to become accessible to the Australian people. Today, such requests receive serious consideration. This would have been unthinkable even five years ago. While medicinal and mental health issues are at the fore with proposals for MDMA-assisted psychotherapeutic trials, ayahuasca use can also draw from Australians’ currently limited right to express their freedom of religion. The authors hope that the material provided in this chapter will aid any future FOR-based application for the sacramental consumption of ayahuasca.

References Australian Government. (2004). Human Rights Act 2004 (ACT). https:// www.legislation.act.gov.au/a/2004-5 Charter of Human Rights and Responsibilities Act 2006. (2006). (Vic). ht tps: //w w w.law.cornell.edu /women-and-justice /resource /char ter_of _ human_rights_and_responsibilities_act_(victoria) Criminal Code Act 1995. (Cth). (1995). https://www.legislation.gov.au/Details/ C2021C00183 Evans, C. (2009) Legal Aspects of the Protection of Religious Freedoms in Australia, Report, Human Rights and Equal Opportunity Commission. https:// humanrights.gov.au/sites/default/files/content/frb/papers/Legal_%20Aspects. pdf First Optional Protocol to International Covenant on Civil and Political Rights, 16 December, 1966. (1966). https://www.ohchr.org/en/professionalinterest/ pages/opccpr1.aspx General Comment 22: The right to freedom of thought, conscience and religion (Art. 18) (CCPR/C/21/Rev.1/Add.4, General Comment No. 22). https:// www.tga.gov.au/consultation-invitation/consultation-proposed-amendmentspoisons-standard-acms-meeting-july-2016 International Covenant on Civil and Political Rights. (1966). https://www.ohchr. org/en/professionalinterest/pages/ccpr.aspx Muell, F., Fitzgerald J. S., & Sioumis, A. A. (1965). Alkaloids of the Australian Leguminosae – The occurrence of methylated tryptamines in Acacia maidenii. Australian Journal of Chemistry, 18, 433–434. Muell, F., Rovelli, B., & Vaughan, G. N. (1967). Alkaloids of acacia. I. NbNbDimethyltryptamine in Acacia phlebophylla. Australian Journal of Chemistry, 20(6), 1299–1300. Palmer, J. (2014). Articulations: On the utilisation and meanings of psychedelics. Anastomosis Books.

Ayahuasca and Freedom of Religion in Australia  141 Simon, D., (2004). A third view of the black box: Cognitive coherence in legal decision making. The University of Chicago Law Review, 2, 511–586. St. John, G. (2015). Mystery school in hyperspace: A cultural history of DMT. Atlantic Books. Therapeutic Goods Administration (TGA). (2016). Scheduling delegate’s final decisions, July 2016. https://www.tga.gov.au/book-page/44-nn-dimethyltryptamine

Cases Church of the New Faith v Commissioner of Pay-roll Tax (Vict) (“the Scientology Case”) [1983] HCA 40; (1983) 154 CLR 120 (27 October 1983) Daniels v Deputy Commissioner of Taxation (2008) SASC 431 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

8 A Genealogy of the Ayahuasca Cultural Heritage Registration Process in Brazil Beatriz Caiuby Labate and Glauber Loures de Assis

Introduction: A Genealogical Proposal In this chapter, we focus on the process of registering ayahuasca as cultural heritage in Brazil. Our aim will be to identify the key actors and the struggles, disputes, and alliances that have formed in this setting, analyzing the historical processes and social relations influencing the movement of registering ayahuasca as cultural heritage in the country. For the purposes of simplification, we refer to this task as the production of a “genealogy.” We look to explore the cultural registration of ayahuasca, not as a teleological project following a linear path, but as both a correlation of forces and a historical construction; a discursive building of truth and identity within a field of disputes and divergences. This approach signifies making visible constructions and relations that tend to turn invisible a posteriori as they become naturalized by natives and scholars alike. In sum, our objective is to reveal the historical processes and the political and social disputes responsible for making the process of registering ayahuasca as cultural heritage what it is today, immersed in a field of controversies that contains a wide spectrum of actors and interests in play. In so doing, we highlight the most important aspects of this debate, while also discussing questions related to ethnicity, drug policy, tradition, and religion. Our hope is that this chapter stimulates new studies on the question, which remains open and full of interesting possibilities for research.

Ayahuasca: One Drink, Many Meanings Ayahuasca is a psychoactive beverage used by diverse human groups, especially Indigenous Peoples, caboclo populations, and religious groups, with different terms being used to refer to the drink depending on its use context. As ayahuasca has expanded to Brazilian urban centers, a neo-ayahuasca network has emerged (Labate, 2004) in which the range of the drink’s meanings and utilizations has acquired new dimensions, including its consumption for a variety of therapeutic, artistic, spiritual, and recreational purposes. Similarly, as ayahuasca has become diffused at a global level,

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DOI: 10.4324/9780429001161-9

Ayahuasca Cultural Heritage Registration Process in Brazil  143 an astonishing multiplicity of visions and interpretations has emerged concerning the beverage. It may be seen as a medicine, hallucinogen, psychointegrator, drug, or sacrament. Uses of ayahuasca are always in dialog with the legal, biomedical, religious, and cultural spheres; a dialog frequently permeated by controversies and disputes. In this chapter, we shall show how the discussion on heritage forms part of this panorama. Despite the diversity in the uses of ayahuasca and its increasingly global visibility, only in Brazil have religious, collective, and relatively institutionalized systems structured through its consumption developed, the so-called “Brazilian ayahuasca religions” (Labate, 2004): Santo Daime, Barquinha, and União do Vegetal (UDV); all born among migrants from the Brazilian Northeast working in the rubber plantations in the north of the country during the first decades of the twentieth century; strongly influenced by folk Christianity, and shaped by a syncretism with regional religious practices that interpret ayahuasca as a sacrament. Santo Daime was developed in the 1930s in the territory of Acre by Raimundo Irineu Serra: Black, originally from Maranhão—the poorest state of Brazil—and the grandson of slaves, he was known to his followers as “Master Irineu.” Barquinha (The Little Boat) was established in the city of Rio Branco by another native of Maranhão, Daniel Pereira de Mattos, called “Master Daniel” by his disciples, a friend of Irineu Serra and, indeed, a follower of the latter for a while. UDV (Union of the Plants), for its part, began its activities in Porto Velho in the 1960s, its central figure, José Gabriel da Costa, or “Master Gabriel,” being a native of the state of Bahia, located in northeastern Brazil. Santo Daime, Barquinha, and UDV possess diverse points of similarity, albeit with their own specificities. At the same time, they cannot be seen, in themselves, as homogenous religions or groups, since each has its own internal splits, conflicts, and subdivisions. In this sense, perhaps the largest and best known division within these religions is found in Daime, where at least two groups stand out: Alto Santo,1 led by Irineu Serra’s widow, Peregrina Gomes Serra, which adopts a more orthodox and explicitly nonexpansionist posture; even today, limited practically to the city of Rio Branco; and ICEFLU, 2 the Daimist “line” founded by Sebastião Mota de Melo, one of the most renowned followers of Master Irineu, and led today by his son, Alfredo Gregório de Melo, a branch now present in at least 43 countries (Assis & Labate, 2018), maintaining Céu do Mapiá (Mapiá Heaven) as its global center, a Daimist community located in the Purus National Forest in Amazonas State. It should be emphasized that Alto Santo, Barquinha, 3 and UDV maintain diplomatic relations and a number of political alliances that impact the issue of ayahuasca as cultural heritage. These relations have largely been established in opposition to ICEFLU, a fact that provokes animosities and mobilizes a series of narratives and disputes for legitimacy and authenticity in the Brazilian ayahuasca field (Labate, 2012; Goulart, 2016; Assis, 2017).

144  Beatriz Caiuby Labate and Glauber Loures de Assis It is worth remembering that currently, only the religious consumption of ayahuasca is considered lawful by the Brazilian state, following a tortuous legal process that involved diverse actors and culminated in the 2010 resolution issued by the National Drug Policy Council (CONAD). This resolution, though it had been fundamental to the establishment of a legal framework for the use of the beverage, was also criticized for its relative fragility (Macrae, 2017) and, principally, for failing to provide space for voices other than those of the neo-ayahuasca religions and groups, such as Indigenous Peoples, for example. In some ways, the discussion on cultural heritage registration appears to be an outcome of the legal regulation of ayahuasca, involving old and new actors linked to this process.

Heritage: From Roman Property to Intangible Cultural Diversity In Brazil, the question of cultural heritage became more clearly delineated in legal terms from the 1930s, under the influence of modernism, on one hand, and the Catholic Church, on the other. A landmark in the development of this framework was the 1934 Constitution that banned artworks from leaving Brazilian territory (Dias, 2015, p. 47). This same constitution, influenced by the Catholic Church, opened up the possibility of cooperation between the State and religions, a fact that would have wide-ranging repercussions. The 1937 Constitution returned to the theme of cultural heritage, and Law Decree 25/1937 was issued soon afterwards, containing a definition of heritage and the concept of heritage registration. In the same year, the National Historical and Artistic Heritage Service (SPHAN)4 was founded, which would later give rise to the present-day IPHAN, created in 1970. As early as 1938, the first heritage properties were registered in the country, illustrating the power of the Catholic Church at that time, since eight of the first 23 properties listed in Brazil were Catholic churches. The 1967 Constitution was promulgated during the military dictatorship, which defined support for culture as a duty of the State and prescribed state protection of national cultural heritage. However, these initiatives lost their force with AI-5, which reoriented the issue of heritage to the “protections of national values.” It was only in the 1970s that significant new advances were made in the area. In 1975, the National Culture Policy was created, followed, in 1979, by the National Pro-Memory Foundation, which marked an important transformation in the conception of heritage, shifting away from the earlier notion of historical and artistic heritage focused on “stone and mortar” properties (especially buildings) and toward the valorization of the cultural, ethnic, and religious diversity of Brazil as an important aspect of the country. It was following this new approach that the major turning point in Brazilian heritage policy occurred: the listing of Ilê Axé Iyá Nassô Oká, also

Ayahuasca Cultural Heritage Registration Process in Brazil  145 known simply as “Casa Branca” (White House), a candomblé terreiro (temple) in the city of Salvador, Bahia (Dias, 2015). This was the first registration of cultural heritage to valorize a religion other than the Catholic Church. In addition, the registration procedure for Casa Branca required a model very different from the one that had been used for other such processes in the past, not being limited to “stone and mortar” property, but also, bushes, trees, and sacred objects, water fountains, and other elements related to the cultural value of the locality. The registration of Ilê Axé Iyá Nassô Oká involved an anthropological justification and, to some extent, inaugurated the mutual relationship between anthropology and minority religions as part of the movement of recognizing and legitimizing the latter, which also applies significantly to the case of ayahuasca. From this moment on, the candomblé terreiros and other minority religiosities started to acquire a higher profile in the public sphere, no longer needing to conceal their practices as a survival strategy (Dias, 2015). Over the following years, other terreiros began to be registered, paving the way for a new public policy linked to the idea of heritage. In 1994, the Arts Foundation (Fundação de Artes: Funarte) was created, another government body that has played an important role in the Brazilian heritage issue. However, the next structural transformation would take place only in 2000, when the National Program of Intangible Heritage was launched (Dias, 2015). Thereafter, it became possible to register intangible cultural heritage, echoing a more contemporary anthropological vision of culture whereby not only material and technical objects are valorized, but so too, cultural and symbolic relations, rituals and festivities, traditions and oral expressions, knowledge and cultural practices, among other aspects (Barros, 2016). This resource enables the registration of cultural wealth linked to highly oral traditions as instances of cultural heritage, as in the case of Afro-Brazilian and ayahuasca religiosities (Assis, 2017). The National Program of Intangible Heritage instituted the notion of the “register” for the purposes of cultural heritage registration, demonstrating that, unlike movable and immovable items, intangible cultural heritage does not require protection and conservation of the kind attributed to “stone and mortar” properties, but rather, “identification, recognition, ethnographic registration, periodical follow-ups, divulgation, and support. In sum, more documentation and follow-up, less intervention” (Macrae, 2017, p. 27). As part of this regulatory framework, there are four books in which instances of intangible cultural wealth can be registered; although the possibility of creating new books has remained open, illustrating the dialogical and dynamic character of contemporary heritage policy. These are: 1 Knowledge Registry Book, listing forms of knowledge and ways of making, rooted in the everyday life of communities;

146  Beatriz Caiuby Labate and Glauber Loures de Assis 2 Celebrations Registry Book, listing rituals and festivals that mark ­collective experiences of work, religiosity, entertainment, and other practices of social life; 3 Forms of Expression Registry Book, listing literary, musical, visual, dramatic, and ludic manifestations; and 4 Places Registry Book, listing markets, fairs, sanctuaries, squares, and other spaces where collective cultural practices are concentrated and reproduced (Brazil, 2000). In the case of immaterial and intangible cultural wealth, this dialogical character of heritage policy becomes even more prominent. It is very difficult to define what a registrable immaterial asset is a priori, and different possibilities exist in terms of understanding the question, based on distinct viewpoints and interests. In this sense, the registration process for intangible cultural heritage is relational and interactionist, such that the dispute to define what is or is not heritage has important practical and identificatory repercussions. It is also important to stress that, for the purposes of registering intangible heritage, it is not always necessary to register just one item; nor do the registered items have to be those initially claimed by the applicant groups. This applied to the case of capoeira, for example, where the initial request was for the registration of capoeira itself as cultural heritage. At the end of the process, what was registered was the craft of the capoeira master. Finally, it can be observed that the notion of intangible heritage and the new heritage policy in Brazil enabled a greater opening to the country’s cultural, ethnic, and religious diversity. Another interesting example was the registration of the “Bahian acarajé women” in 2005, or the Bumbameu-boi Cultural Complex of Maranhão (Dias, 2015).

Cultural Heritage Registration of Ayahuasca and Other Psychoactive Plants in Latin America At an international level, one landmark in the legitimization of ayahuasca practices was Peru’s recognition of ayahuasca as cultural heritage of the country (INC, 2008b). This movement is also related to the reflexive effects of the global expansion of the drink, since it was heavily influenced by the activities of the Takiwasi group, a therapeutic center led by the French physician Jacques Mabit, situated in Tarapoto, Peru, that uses ayahuasca to treat dependency on psychoactive substances. According to Labate (2014), the question of registering ayahuasca as cultural heritage came to prominence after publication of a document written by a member of Takiwasi’s board of directors, culminating in the resolution of Peru’s National Institute of Culture (INC) that recognized ayahuasca as cultural heritage of the country in 2008 (INC, 2008b). In the Peruvian case, heritage safeguarding aims specially to protect traditional and indigenous

Ayahuasca Cultural Heritage Registration Process in Brazil  147 uses of ayahuasca, in contrast to the market use evident in the New Age circuit (Dias, 2015). During the same period, Shipibo-Konibo geometric designs, or kené, were also recognized as cultural heritage (INC, 2008c), leading to the opening of the Museum of Sacred, Magical, and Medicinal Plants in the city of Cuzco in 2011 (INC, 2008a). Subsequently, the Shipibo-Konibo icaros—songs performed in ayahuasca rituals—were also recognized as Peruvian cultural heritage in 2016 (El Peruano, 2016). In 2006 and 2007, the Huni Kuin of Acre, Brazil, approached IPHAN to request registration of their own kené designs as cultural heritage, but the registration has yet to be made (Labate & Goldstein, 2017). In Colombia, meanwhile, there is no formal regulation of yagé (ayahuasca), although various attempts at self-regulation have been made by Indigenous Peoples, as well as administrative rulings legitimizing the use of yagé. Traditional medicine and yagé finally appeared in the country’s cultural heritage policy directives in 2009, and the Colombian taitas (traditional shamans) obtained a certificate from the government clearing the way for recognition—albeit informal—of ayahuasca as intangible heritage (Colombian Ministry of Culture, 2009; ADF, 2017; Sánchez & Labate, 2017). Other data relating to the Colombian context include the 2008 resolution of the Ministry of Environment and Housing, which recognized “Yagé Culture” as a cultural preservation value; an award worth the equivalent of US$10,000 made by the Ministry of Culture to the taita Querubin Queta Alvarado for his dedication to enriching the culture of the Indigenous Peoples of Colombia (ADF, 2017); and the recognition, in 2010, of the Yurupari ritual as a cultural heritage of Colombia, also recognized by The United Nations Educational, Scientific and Cultural Organization (UNESCO) in 2011, as intangible cultural heritage of humanity (UNESCO, 2011). In Bolivia, the most emblematic case involved the recognition, in 2009, of the coca leaf as national cultural heritage, a renewable source of biodiversity and an important factor in the promotion of social cohesion (Metaal, 2014). The Bolivian case is especially paradigmatic since it is the first example of a psychoactive plant whose existence is guaranteed and safeguarded as cultural heritage by a country’s constitution (Republic of Bolivia, 2009, Article 384). Still, in relation to the coca leaf, the latter had already been declared cultural heritage in Peru in 2005 (INC, 2005). In Peru, indeed, there is a legal coca market controlled by a state agency, the National Coca Company (Empresa Nacional de la Coca: ENACO). After its recognition in Bolivia in 2014, the Andean Parliament, composed of Bolivia, Colombia, Ecuador, and Peru, declared the coca leaf to be a cultural and ancestral heritage of Andean societies. In addition to these countries, Argentina—where coca consumption was decriminalized in 1989—also possesses local laws related to the traditional use of coca leaves, and Chile appears as a country that tolerates its utilization by Indigenous populations (Metaal, 2014).

148  Beatriz Caiuby Labate and Glauber Loures de Assis As it has acquired international notoriety, an effort has also been made by some actors, especially in Bolivia, to alter the categorization of coca leaves in international conventions on drugs, which have defined it, to date, as a Class 1 psychoactive substance; that is, a drug with a high potential for abuse and unsafe for use, even under medical supervision (Metaal, 2014). This movement has provoked discussions in the context of the United Nations and a wide range of reactions from Western countries, but it does signal some legal advances in terms of the traditional use of coca leaves. The results achieved by the efforts of countries from the Andean Parliament provide an example of how heritage and cultural recognition can help in the quest for social and legal legitimacy on the part of the benefitting groups.

Cultural Heritage Registration of Ayahuasca in Brazil and the Conflicts Involved Through the work of some key actors—notably, the journalist Antônio Alves, a member of CICLU-Alto Santo—the state government of Jorge Viana (Workers’ Party) began to adopt a different approach to the question of ayahuasca from 1999 onward, seeking to shift the issue from the sphere of justice and the discussion on drugs to the areas of culture and the environment. Following this dialog between the public authorities and various ayahuasca groups based in Rio Branco, CICLU-Alto Santo requested the registration of a number of architectural elements in their community. This request also reflected a dispute with another Daimist group present in the region, CICLU, over the ownership of lands and other legal aspects related to Daime. Understanding this dispute fully would require a reconstruction of the historical roots of Daime, which, unfortunately, exceed the limits of this chapter. Put succinctly, in the decade following Sebastião Mota de Melo’s departure from Alto Santo and the foundation of CEFLURIS (present-day ICEFLU) in the 1970s, Alto Santo experienced a new schism, leading to division and the formation of other groups located in the same district of Rio Branco, where they remained neighbors (Goulart, 2004; Assis, 2017). The original group is still led today by Irineu Serra’s widow, while one of the other groups succeeded in winning the legal right to use the center’s official name, CICLU, forcing the group of Peregrina Serra to use another name: CICLU-Alto Santo. This relational panorama is important since, as deeper field research shows, although the question of the registration of ayahuasca as cultural heritage today takes the form of an overtly republican debate on rights and safeguarding, its roots can be traced to a large extent to local disputes among these groups for territory and religious capital. An important influence on this process was the creation, in the Alto Santo region, of the Raimundo Irineu Serra Environmental Protection Area (APA) on June 7, 2005.

Ayahuasca Cultural Heritage Registration Process in Brazil  149 The project to create the APA originated primarily from CICLU; specifically, from the figure of João Rodrigues Facundes, “Seu Nica,” and his son Jair Facundes. According to some accounts collected in our field research, due to the back history of rivalry between Nica and Peregrina Gomes Serra, the creation of the APA aroused suspicions, which came to a head when, during the same period, Jair and other members of CICLU tried to purchase the house that had belonged to Leôncio Gomes, Peregrina’s uncle and an important successor to Irineu Serra. At that moment, the residence was occupied by family members who no longer professed the Daime doctrine. This fact was no doubt perceived by Peregrina as a threat to her heritage, prompting her to contact the state governor, Jorge Viana, through the intermediation of Antônio Alves, in order to initiate the registration of a number of buildings located in Alto Santo, including Leôncio’s house. The application for registration was made by Irineu Serra’s widow herself, and included the following elements: the house in which Raimundo Irineu Serra and Peregrina had lived; the center/temple for spiritual works; the casa do feitio (making house), where Daime is prepared; the well, dug by Master Irineu himself; the grave where Irineu Serra is buried, along with his followers, José das Neves and Leôncio Gomes; the Irineu Serra school, founded by the man himself; and the house where Lêoncio Gomes da Silva, considered the “eternal president” of Alto Santo, lived. The request was accepted and the registration concretized by decrees issued simultaneously by the governor Jorge Viana and the mayor Raimundo Angelim Vasconcelos in September 2006. These monuments of Alto Santo thus came to be considered as the historical and cultural heritage of Rio Branco and Acre State (Assis, 2017). In 2006, after reforms undertaken by the municipal and state governments, the Raimundo Irineu Serra Memorial was reinaugurated in Alto Santo: a community memorial erected in the house where Master Irineu had lived, containing a collection of photos and documents of the group’s history, as well as personal objects and furniture used by Irineu Serra and Peregrina. The memorial is administrated by members of Alto Santo, who restrict visiting to family members and known and authorized people only, which is justified, in part, by the fact that the site also stores the stock of the sacred ayahuasca, Daime, used in the rituals. Nevertheless, we can perceive that, as an outcome of the cultural policies introduced by the Lula government and the administration of the Ministry of Culture, headed by the internationally renowned musician Gilberto Gil, there were clear transformations in how ayahuasca and ayahuasca religions were treated in Acre. In the city of Rio Branco, especially, there was a considerable empowerment of some of these groups as a result of their close dialog with the public authorities; notably, those groups with closer ties to the PT government or its grassroots allies, as in the case not only of Alto Santo, but also UDV, which was strongly linked to the deputy Perpétua

150  Beatriz Caiuby Labate and Glauber Loures de Assis Almeida from the PC do B (Communist Party of Brazil), as well as other local politicians. Along with the closer ties developed between Alto Santo, UDV, and Barquinha, and between these and the public authorities, there was also an attempt to segregate other groups, especially ICEFLU. In tracing this chronology, it is important to note that, although the seeds for the application to register ayahuasca as cultural heritage had first emerged in Alto Santo with the registration of its historical site, the process subsequently drew in other actors from the ayahuasca field, notably, UDV and the House of Jesus Source of Light (one of the groups from the Barquinha “line”), which began to work in coordination with Alto Santo on the cultural heritage issue. This process, which included meetings in the Acre State Legislative Assembly, led to the creation of the “Special Committee on Ayahuasca Cultures,” the first meeting of which was held on March 4, 2008. These meetings were attended by representatives from CICLU-Alto Santo, CICLU, UDV, and House of Jesus Source of Light, but did not include representatives from ICEFLU or Indigenous Peoples. In this sense, the Special Committee, although subordinate to the Rio Branco Municipal Council of Cultural Policies (CMPC) and, in theory, representing “ayahuasca cultures” in general, has, since its emergence, closely reflected the interests of CICLU-Alto Santo, UDV, and House of Jesus Source of Light (Goulart, 2016; Goulart & Labate, 2016). These groups began to work together to construct a common identity, which brought them closer, while simultaneously distancing them from other ayahuasca groups, especially ICEFLU (Labate, 2012; Goulart & Labate, 2016). CICLU-Alto Santo, UDV, and House of Jesus Source of Light began to call themselves “traditional ayahuasca communities,” among other similar terms evoking the idea of “tradition.” As Labate (2012) argues, the construction of this common identity led UDV to invest aspects of its creation and development with new meanings as a way of establishing stronger links to Acre State and enable a closer dialog with Alto Santo and the figure of Master Irineu. Moreover, this arrangement constructed a narrative that sought to deprive ICEFLU of the quality of “traditional.” It was through the strategic pact formed by these groups that the idea surfaced of applying for ayahuasca to be recognized as Brazilian cultural heritage. The official aim of this request was to change the logic by which ayahuasca is perceived since, when transformed into cultural heritage, it would cease to be an issue primarily linked to the Ministry of Justice and shift instead to the sphere of the Ministry of Culture.5 It was no coincidence, therefore, that the name of the discussion body of these entities was the Special Committee on Ayahuasca Cultures. In 2008, therefore, Alto Santo, UDV, and House of Jesus Source of Light submitted their application for ayahuasca’s recognition as cultural heritage to the culture minister Gilberto Gil during the aforementioned ceremony held in Alto Santo, an event that would have a decisive impact on the entire national ayahuasca universe.

Ayahuasca Cultural Heritage Registration Process in Brazil  151

Inclusion of Indigenous Peoples and Complexification of the Debate Despite the culturalist discourse and the shift between the government spheres dealing with ayahuasca (from the Ministry of Justice to the Ministry of Culture), this application for its registration as cultural heritage in practice also contained questions specific to the ayahuasca field itself, such as disputes about distinction and authenticity. It is worth remembering that, although the valorization of cultural manifestations associated with ayahuasca and its eventual status as cultural heritage possess a symbolic dimension with strong public repercussions, such recognition would not necessarily alter the drug policies regulating and controlling ayahuasca’s use. The meetings of the Special Committee divided the Brazilian ayahuasca universe into three “fields.” The first, entitled the “original field,” referred to Indigenous Peoples, while the second, the “traditional field,” included the three groups mentioned previously, and finally, the “ayahuasca field” (or eclectic field) encompassed ICEFLU and all the other rituals uses of ayahuasca. This classification provoked disputes and protests that still reverberate today. Excluded from the original application made by the groups proclaiming themselves “traditional,” ICEFLU submitted its own request for the registration as cultural heritage to the Amazonas State Culture Office (Labate, 2012). However, the application for cultural heritage registration made by the three groups in 2008 was turned down by the Intangible Heritage Committee on November 26, 2008. The latter determined that the application was too broad and generic and failed to include specific and sufficient elements to identify the objects to be registered, as defined by Decree 3551/2000 on intangible heritage, which states that “foods, drinks, along with beliefs, philosophies and theologies, do not by themselves comprise cultural assets capable of being registered, but references for the production and reproduction of processes, representations, and cultural practices” (Santos, 2010, p. 3). This rejection of the application was not definitive, however, but represented a suggestion and stimulus for the application to be better developed. In relation to Indigenous Peoples, Haru Xinã Kuntanawa, then president of the Forest Guardians Institute (IGF), submitted a request on August 27, 2010, asking the Ministry of Culture to conduct a survey of the cultural heritage of Pano-speaking peoples and ensure their inclusion in the inventory. As a result, IPHAN technicians visited Katukina lands to discuss the inventory process with the Indigenous Peoples and their potential participation in the same (Das Neves, 2017). Amid this dispute for authenticity, and recognizing the complexity of a request of this kind, the Ministry of Culture decided that the process of registering ayahuasca as cultural heritage needed to be more inclusive, allowing the participation of ICEFLU and Indigenous Peoples as well. It

152  Beatriz Caiuby Labate and Glauber Loures de Assis was based on this more extensive proposal that IPHAN began the National Inventory on Cultural References (INRC), designed to evaluate the question and gather data for the registration of ayahuasca. On November 7, 2011, IPHAN issued a public tender for the production of the inventory. The winner was the company M&B Serviços Especializados, responsible for implementing the preliminary phase of the Ayahuasca INRC (Barros, 2016). Once the tender process was completed and the team defined, the inventory began to be compiled in 2012, using the standard methodology adopted by IPHAN for intangible heritage registration projects. This consists of three stages: (1) Preliminary Survey; (2) Identification; (3) Documentation. The cultural heritage registration movement continued its course, now in a process unified at federal level through IPHAN, albeit hindered by the intense conflicts between the different ayahuasca groups. The team of specialists concluded that ICEFLU needed to be included in the registration process, along with indigenous uses of ayahuasca in Brazil. Consequently, the inventory team visited the settlement of Céu do Mapiá, which they left positively impressed by the organization, size, and sustainability of the community (Goulart, 2016). The inclusion of Indigenous Peoples in the process rendered this discussion considerably more complex, given the existence of approximately 15 indigenous groups in Acre that utilize ayahuasca based on distinct cultural contexts and references. The research with Indigenous Peoples would itself prove to be onerous due to the difficulties and costs involved in traveling to their communities. This slowed down the process and, at the same, time prompted IPHAN to publish a public tender to hire a company to organize meetings in indigenous lands that would explain the process involved in the registration of the ritual use of ayahuasca as cultural heritage and consult their views on the same (Barros, 2016). In response to this new panorama, Alto Santo, UDV, and House of Jesus Source of Light argued that their request for heritage registration dispensed with the need to consult Indigenous Peoples, since it specifically concerned the three groups in question. According to their reasoning, the indigenous use of ayahuasca differs from that made by the religions, since the indigenous use forms part of a Pan-Amazonian international identity and culture, extending to countries like Colombia and Peru, while the use of religious traditions is linked to a national “Brazilian culture.” They also argued that the inclusion of Indigenous Peoples in the inventory resulted from a demand made by indigenous youths associated with the New Age religious circuit, not older shamans from the villages. In their view, it was therefore unrepresentative. Moreover, there were, they argued, already sufficient elements for the registration involving the three groups. Further extending the research would end up blocking the process (Barros, 2016). In order to define their application more clearly and give it a more specific tone, Alto Santo, UDV, and House of Jesus Source of Light asked IPHAN to

Ayahuasca Cultural Heritage Registration Process in Brazil  153 register the craft of the three founding masters of the traditional branches of ayahuasca: Irineu, Daniel, and Gabriel. The argument was that all ritual uses of ayahuasca subsequent to indigenous uses originate in some way from these three masters, and that the office of the masters encompasses all the cultural references of each of these religions. In support of their argument, they also cited the preceding registration of the craft of capoeira master (Barros, 2016). IPHAN, however, was opposed to this proposal, arguing that registration of the office of “master” is related to the activities and methods of specialists and experts using techniques that symbolize a particular social group or place. Moreover, it is essential that the craft in question can be transmitted generationally, allowing the emergence of new masters capable of performing the activity in question. Such would apply, for instance, to the manufacture of clay pots in Espírito Santo, some of the cuisine in Goiás Velho, and the processing of manioc or sugar cane extraction, among others (Barros, 2016). Clearly, the office of the three founding masters does not fit into this category, given that there is no line of succession or generational transmission of this office, occupied only by the three founding masters of the respective religions. An additional problem with the application, according to IPHAN, is the possibility of ICEFLU requesting the inclusion of Sebastião Mota de Melo among the recognized masters, which is completely unacceptable to the three groups who made the initial request, who would much rather distinguish themselves than be confused or mixed up with ICEFLU. Amid these discussions, the hired company completed the preliminary survey for the inventory in December 2012. In October 2014, IPHAN’s recommendations for the inventory were sent to its technical team, which began to rewrite the report that, in turn, corresponds to the first of the three stages of the registration process. The Final Report of this stage, containing a qualitative analysis that examined the social, pharmacological, legal, and religious aspects of ayahuasca, was concluded in 2015 and publicly presented in the city of Rio Branco, Acre, on August 22, 2017 (Das Neves, 2017). However, this report still does not identify which cultural items will be registered as heritage. During the IPHAN meetings held on the topic at the start of 2015, for example, it was recalled that Convention 169 of the International Labor Organization (ILO), to which Brazil is a signatory, stipulates that any questions that affect or concern Indigenous Peoples require their free, prior, and informed consent (Barros, 2016), which reinforced the importance of consulting the indigenous groups. In a meeting held in Brasília on May 25, 2015, a parliamentary amendment was proposed by deputy César Messias (PSB/Acre) to hold consultations with Indigenous Peoples via IPHAN. A public hearing was also organized on the issue by deputy Raimundo Angelim (PT/Acre), and a proposal made to request an increased

154  Beatriz Caiuby Labate and Glauber Loures de Assis commitment by the IPHAN office in Acre to work with Indigenous Peoples (Barros, 2016). Finally, the team responsible for the inventory came to the conclusion that the second stage of the process had to separate the indigenous and non-indigenous contexts, implying the production of two distinct inventories. This decision will undoubtedly have an impact on the future developments of the registration of ayahuasca as cultural heritage, which, at present, remain still uncertain. Will Indigenous Peoples continue to be classified as “original” in this new configuration? What are the implications of separating “indigenous and non-indigenous” in terms of the interests of the initial proponents of the heritage registration process, Alto Santo, UDV, and House of Jesus Source of Light? How will ICEFLU be included and dialog with the actors in this field during this new phase? These are some of the questions that promise to keep the debate alive. The central question that requires a resolution, however, is even more challenging: Find and specify the cultural items to be registered as heritage; items that match the criteria established for the registry books by Decree 3551, regulating intangible heritage. The expectation is that a solution to this question will be enabled by the Preliminary Survey.

The Second World Ayahuasca Conference Between October the 17 and 22, 2016, the Second World Ayahuasca Conference was hosted on the campus of UFAC (Federal University of Acre) in Rio Branco. It was one of the most diverse spaces dedicated to the theme of ayahuasca ever recorded, demonstrating the contemporary complexity of the global ayahuasca field (Assis, 2017; Goulart & Labate, 2017; Macrae, 2017). The conference was organized by the International Center for Ethnobotanical Education, Research & Service (ICEERS), an NGO based in Spain. One of the high points of the event, and one that interests us here especially, was the meeting on cultural heritage registration, which was closed to the public and took place parallel to the official presentations. According to the testimony of some of the participants, there was an open conflict of positions. ICEERS convoked the meeting in order to discuss proposals for the recognition of ayahuasca as a cultural heritage of humanity. However, this more universalist stance was questioned by other participants and ran into the tensions that had already become evident in the Brazilian ayahuasca field, such as the exclusion of Indigenous Peoples from the request for recognition of ayahuasca as cultural heritage. For some of the indigenous representatives present, ayahuasca was something intrinsically associated with the cultural and social contexts of its use. Indeed, for many, it made no sense to even speak of “ayahuasca” as though it were a single, generic drink. Drink and culture cannot be conceived in isolation. Possessing active

Ayahuasca Cultural Heritage Registration Process in Brazil  155 principles in common is not enough to classify the plant; just as important are the environment and the form in which it is used. This entails attributing ayahuasca with an ethnic dimension, something that, in some ways, was shared by the traditionalist ayahuasca religions, with the difference that there was a tendency to construct a more monopolist and exclusivist narrative about the consumption of daime/vegetal, manifested, for example, in the desire to distinguish between sacred and profane, traditional and non-traditional, and legitimate and illegitimate uses. The indigenous perspective appeared to involve recognition of their culture and people—or their historical precedence—rather than the restriction or prohibition on the use by other groups. The differences in the positions adopted by the ayahuasca religions, Indigenous Peoples, and anthropologists and scientists made it difficult to unify around the ICEERS proposal for ayahuasca’s registration as cultural heritage at an international scale. They also brought to the surface the tensions surrounding a common approach to the issue at national level. One of the recurrent complaints made by Indigenous Peoples was that the movement to regulate ayahuasca thus far had protected the religions more than themselves (Goulart & Labate, 2017). The Second World Ayahuasca Conference prompted some ayahuascausing Indigenous Peoples to join forces and hold the First Indigenous Ayahuasca Conference, or Yubaka Hairá, which took place between December 14 and 17, 2017, in the Puyanawa Land in Mâncio Lima, Acre. This conference also provided space for debate on cultural heritage registration, producing an “Internal Recommendation Letter” by the groups taking part (Representantes, 2017). The document recommends investigating the possibility of submitting a letter to IPHAN/Ministry of Culture and the Public Prosecutor’s Office, as well as other responsible entities in Brazil, and even the UN, presenting the position of the ayahuasca-using Indigenous Peoples on the registration and internationalization of ayahuasca. Additionally, there also exists the request to consider the inclusion of shamans in the IPHAN commission responsible for evaluating the ayahuasca registration process, assessing the viability of registering the drink as the cultural heritage of Indigenous Peoples, and creating their own process that recognizes the indigenous view of cultural heritage.6

Final Considerations In this chapter, we have sought to provide a genealogy of the process of ayahuasca cultural heritage registration in Brazil. Adopting a comparative perspective, we have seen that, in Peru, ayahuasca is considered a national cultural heritage, a decision unprecedented anywhere else in the world, while Colombia establishes some indirect recognition, but with important administrative advances for the recognition of yagé. Brazil, meanwhile, presents a somewhat unique setting, not only because it is the birthplace

156  Beatriz Caiuby Labate and Glauber Loures de Assis of the Brazilian ayahuasca religions, but also because ayahuasca is considered legal for religious use in the country, following the resolution taken by CONAD in 2010. Through the articulation of several representatives of ayahuasca religions, discussions began in 2008 on the registration of ayahuasca as an intangible cultural heritage of Brazil. This original initiative, whose historical root we have explored here, reflected specific political alliances and disputes in the ayahuasca field, omitting some important actors. In order to evaluate the question better, IPHAN launched the National Inventory on Cultural References (INRC), including a diverse team of scholars, and sought to pay attention to other relevant experts in the ayahuasca setting. The final report was concluded in 2017, and corresponds to the first of the three stages necessary for cultural heritage registration. The next stages are still being evaluated by IPHAN, meaning that the discussion on ayahuasca as intangible cultural heritage remains open and ever more complex as new actors join the debate. This was the case of the Second World Ayahuasca Conference where a huge variety of ayahuasca groups discussed the question of heritage registration, along with diverse other topics. Various conflicts erupted during the event, highlighting the cultural differences among the ayahuasca groups, but, at the same time, provoking the establishment of new exchanges, new alliances, and the repositioning of actors within this discussion. As we can see, at the same time as the ayahuasca groups sought to shift the ayahuasca issue from the legal to the cultural sphere, the question of cultural heritage registration also became an “idiom” to discuss the disputes within the ayahuasca field over the legitimacy and authenticity of various actors. This scenario has become increasingly diverse and even more complex to the extent that indigenous groups have also joined the debate, including their appropriation of the discussion on cultural heritage registration, in order to compete for space with the ayahuasca religions and other groups in a “market” of religious ceremonies that is ever more competitive (Labate  & Coutinho, 2014). Ultimately, turning ayahuasca into cultural heritage implies identifying who its legitimate “bearers” or “holders” are. Are they the Indigenous Peoples? The ayahuasca religions? Brazilians? All humankind? This, combined with the difficult task of identifying the cultural item to be registered as heritage, makes the possibilities for recognizing ayahuasca as cultural heritage in Brazil both highly challenging and intellectually stimulating. The biggest and most urgent challenge of the moment, however, is to defeat the totalitarian government of Jair Bolsonaro, who interrupted this debate, extinguished the Ministry of Culture, weakened CONAD and drastically changed IPHAN. Perhaps this dramatic scenario is an opportunity for Brazilian ayahuasca groups to come together for a common agenda to safeguard ayahuasca in Brazil.

Ayahuasca Cultural Heritage Registration Process in Brazil  157

Notes 1 The group’s official name is the Centro de Iluminação Cristã Luz Universal (CICLU: in English, the Universal Light Christian Illumination Center). 2 The acronym for the Igreja do Culto Eclético da Fluente Luz Universal (in ­English, the Church of Eclectic Worship of the Flowing Universal Light). 3 More specifically, the Casa de Jesus Fonte de Luz (Praying House of Jesus, Source of Light) group. It is important to recall that, as in the case of the other two ayahuasca religions, the Barquinha “line” also has internal divisions. 4 In Portuguese, Serviço do Patrimônio Histórico e Artístico Nacional. 5 It is important to say that, during the authoritarian government of Jair Bolsonaro, the Ministry of Culture was extinguished. 6 To date, three ayahuasca indigenous conferences have been held. The fourth is scheduled for the end of 2021.

References Assis, G. L. (2017). A Religião da Floresta: apontamentos sociológicos em direção a uma genealogia do Santo-Daime e seu processo de diáspora [The religion of the forest: Sociological notes towards a genealogy of Santo Daime and its diaspora] (Doctoral dissertation). UFMG. Assis, G. L., & Labate, B. C. (2018). Genealogia do processo de patrimonialização da ayahuasca no Brasil [Genealogy of the cultural heritage registration process of ayahuasca in Brazil]. In B. C. Labate & F. Policarpo (Eds.), Drogas: Perspectivas em Ciências Humanas [Drugs: Human science perspectives], pp. 207–229. Terceiro Nome/Gramma/NEIP. Ayahuasca Defense Fund (ADF). (2017). National legal status, Colombia. Available at: http://ayahuascadefense.com/index.php/estatus-legal-nacional/?lang=es Barros, G. C. (2016). Tradição e Modernidade no Campo Ayahuasqueiro: uma análise a partir dos processos de regulamentação e patrimonialização da ayahuasca no Brasil no período de 1985/2016 [Tradition and modernity in the ayahuasca field: An analysis based on the processes of regulating and registering ayahuasca in Brazil, 1985/2016] (Doctoral dissertation). UFCG. Das Neves, A. (2017). O processo de patrimonialização da ayahuasca no Brasil: conquistas, disputas e tensões [The cultural heritage registration of ayahuasca in Brazil: conquests, disputes and tensions] (Master’s thesis). Federal University of Bahia, Salvador. Dias, M. de O. (2015). Processos de Patrimonialização no Campo Religioso Brasileiro: o caso do Santo-Daime [Cultural heritage registration processes in the Brazilian religious field] (Master’s thesis). Federal University of Paraíba, João Pessoa. El Peruano. (2016, June 15). Resolución Viceministerial n. 068-2016-VMPCIC-MC [Vice-ministerial resolution n. 068–2016-VMPCIC-MC]. Declaran a los Íkaros del pueblo shipibo – konibo – xetebo como Patrimonio Cultural de la Nación [The Icaros of the Shipibo-Konibo-Xetebo people are declared a national cultural Heritage]. Lima. Goulart, S. L. (2004). Contrastes e continuidades em uma tradição amazônica: as religiões da ayahuasca [Contrasts and continuities in an Amazonian tradition: The ayahuasca religions] (Doctoral dissertation). Unicamp, Brazil.

158  Beatriz Caiuby Labate and Glauber Loures de Assis Goulart, S. L. (2016). “Ayahuasca e políticas públicas culturais”: Estratégias de reconhecimento público das religiões ayahuasqueiras [“Ayahuasca and public cultural policies”: The public recognition strategies of ayahuasca religions]. In B. C. Labate (Ed.), Drogas, Políticas Públicas e Consumidores [Drugs, public policies and consumers]. Campinas: Mercado das Letras, pp.117–147. Goulart, S. L., & Labate, B. C. (2016). Religião, Política e Cultura: o uso da ayahuasca como patrimônio cultural [Religion, politics and culture: The use of ayahuasca as cultural heritage]. [Presentation]. 30th Brazilian Anthropology Meeting, João Pessoa/PB. Available at: http://neip.info/novo/wp-content/uploads/2016/07/ Goulart_Labate_Patrimonio_Ayahuasca_ABA_JoaoPessoa_2016.pdf Goulart, S. L., & Labate, B. C. (2017). Da Amazônia ao Norte Global e de Volta: As Várias Ayahuascas da II Conferência Mundial da Ayahuasca [From Amazonia to the Global North and back: The various ayahuascas of the Second World Ayahuasca Conference]. [Presentation]. Fifth Congress of the Latin American Asssociation of Anthropology – Sixteenth Congress of Anthropology in Bogotá, Colombia. Available at: http://neip.info/novo/wp-content/uploads/2017/07/Goulart_ Labate_Amazonia_ao_Norte_Global_ALA_2017.pdf Instituto Nacional De Cultura (INC). (2005). National Directorate Resolution n. 1707/INC. Available at: http://www.bialabate.net/wp-content/uploads/2008/08/ Patrimonio_Coca_Peru_2005.pdf Instituto Nacional De Cultura (INC). (2008a, April 16). National Directorate Resolution n. 540. Declaración Patrimonio Cultural de la nación al kene de la sociedade Shipibo-Koniba [National cultural heritage declaration concerning the kene of the Shipibo-Konibo people]. Lima. Instituto Nacional De Cultura (INC). (2008b). National Directorate Resolution n. 836/INC [Resolución Directoral Nacional n. 1707/INC]. Lima, Peru. Available at: http://www.bialabate.net/wpcontent/uploads/2008/08/declarion_ ayahuasca_patrimonio_cultural_peru.pdf Instituto Nacional De Cultura (INC). (2008c). National Directorate Resolution n. 540/1. Lima. Available at: http://www.bialabate.net/wp-content/ uploads/2008/08/Resolucion_Peru_Kene.pdf Labate, B. C. (2004). A reinvenção do uso da ayahuasca nos centros urbanos [The reinvention of the use of ayahuasca in urban centers]. Mercado das Letras. Labate, B. C. (2012). Ayahuasca religions in Acre: Cultural heritage in the Brazilian borderlands. Anthropology of Consciousness, 23, 87–102. Labate, B. C. (2014). The internationalization of Peruvian vegetalismo. In B. C. Labate & C. Cavnar (Eds.), Ayahuasca shamanism in the Amazon and beyond (pp. 182–205). Oxford University Press. Labate, B. C., & Coutinho, T. (2014). “O meu avô deu a ayahuasca para o mestre Irineu”: reflexões sobre a entrada dos índios no circuito urbano de consumo de ayahuasca no Brasil [“My grandfather gave ayahuasca to Master Irineu”: Reflections on the entry of Indigenous peoples into the urban consumption circuit of ayahuasca in Brazil]. Revista De Antropologia, 57(2), 215–250. https://doi. org/10.11606/2179-0892.ra.2014.89113 Labate, B. C., & Goldstein, I. (2017). “Encontros artísticos e ayahuasqueiros”: reflexões sobre a colaboração entre Ernesto Neto e os Huni Kuin [“Artistic and ayahuasca encounters”: Reflections on the collaboration between Ernesto Neto and the Huni Kuin]. Mana, 23(3), 437–471.

Ayahuasca Cultural Heritage Registration Process in Brazil  159 Macrae, E. (2017, October 17–22). Cultura, política, identidade religiosa e étnica nas discussões sobre a patrimonialização da ayahuasca [Culture, politics and religious and ethnic identity in the discussions on the cultural heritage registration of ayahuasca]. [Presentation]. Second World Ayahuasca Conference, Rio Branco. Metaal, P. (2014). Coca in debate: The contradiction and conflict between the UN drug conventions and the real world. In B. C. Labate & C. Cavnar (Eds.), Prohibition, religious freedom and human rights: Regulating traditional drug use (pp. 25–44). Springer. Ministério De Cultura De Colombia [Colombian Ministry of Culture]. (2009). Política de salvaguardia del patrimônio cultural inmaterial [Policies for safeguarding intangible cultural heritage]. In Compendio de politicas culturales [Compendium of cultural policies]. Available in: https://mincultura.gov.co/ministerio/politicas-culturales/salvaguardia-patrimonio-cultural-inmaterial/Documents/03_politica_salvaguardia_patrimonio_cultural_inmaterial.pdf Representantes Dos Povos Indígenas Do Vale Do Juruá [Representatives of the Indigenous Peoples of the Juruá Valley]. (2017). Internal recommendation letter. First Yubaka Ayrá – Indigenous Ayahuasca Conference, Mâncio Lima. Available at: https://www.xapuri.info/povos-indigenas-2/yubaka-hayra-conferenciaayahuasca-2/ República De Bolivia [Republic of Bolivia]. (2009). Constitucíon Política del Estado [Political Constitution of the State]. Available at: www.ftierra.org/index. php/generales/14-constitucion-politica-del-estado Sanchéz, C., & Labate, B. C. (2017). Ayahuasca practices as intangible cultural heritage: A new piece in the drug policy puzzle? [Paper presentation], Psychedelic Science 2017, Multidisciplinary Association for Psychedelic Science, Oakland, CA, United States. Santos, J. O. (2010). Diferentes contextos, múltiplos objetos: reflexões acerca do pedido de patrimonialização da Ayahuasca [Different contexts, multiple objects: Reflections on the request for the cultural heritage registration of ayahuasca] [Presentation]. 27th Brazilian Anthropology Meeting, Belém-Pará, Brazil. Available at: http://neip.info/novo/wp-content/uploads/2015/04/santos_patrimonializao_ ayahuasca.pdf The United Nations Educational, Scientific and Cultural Organization (UNESCO). (2011). Decision of the Intergovernmental Committee: 6.COM 13.9. 2011. Available at: http://www.bialabate.net/wp-content/uploads/2008/08/Traditional_ knowledge_jaguar_ shamans_Yurupari_ Heritage_ Humanity_U N ESCO_ 2011-1.pdf

9 “Authorization? That’s Outrageous:” Ayahuasca Environmental Legislation and Indigenous Populations in Brazil Beatriz Caiuby Labate, Henrique Fernandes Antunes and Igor Fernandes Antunes Introduction The deforestation of Amazon rainforest in the last decades has escalated to alarming levels, especially due to the spread of cattle ranching, palm oil plantations, gold mining, and other economic activities (Moran, 2017). In Peru and Brazil respectively, approximately 1.5 and 3 million acres of Amazonian rainforest are cut annually, at a rate that has increased over the years. In Brazil, particularly, the deforestation has risen significantly after the election of President Jair Bolsonaro in 2018, mainly because of his predatory stance on environmental policies. This troubling scenario has drawn the attention of researchers, NGOs, indigenous populations, and international bodies, as well as national States, attesting to an increasing uneasiness regarding the consequences and impacts of the deforestation of the Amazon rainforest, not only for South American countries, but worldwide. When it comes to the use of ayahuasca, in addition to the problems associated with deforestation, the increasing demand on the beverage as a consequence of the world ayahuasca diaspora (Labate et al., 2018), beyond the realms of the Amazonian rainforest, has also generated local problems. As Suárez Álvarez (2019, 2020) states, gatherers, intermediaries, processors, and exporters based in Peru often condemn the overexploitation of wild ayahuasca vine. According to him, in Peru, there are complaints that the vine has disappeared from the surroundings of numerous villages and from accessible areas of the forest, obligating gatherers to travel deeper into the forest to find them. As reported by the author, these local actors stress that traded specimens are younger and thinner, and that the price of ayahuasca has multiplied by four in the last five years due to the increasing demand. In Brazil, the expansion and internationalization of ayahuasca religions has also raised concerns regarding the growing pressure on plant species. As a result, debates have increasingly emerged around the need to promote ayahuasca sustainability, and to create legal measures to preserve the ayahuasca vine and the chacruna plant (Antunes & Antunes, 2021; Ermakova, 2022). The end of the 1990s marked the beginning of the development of the first environmental legislation directed exclusively at ayahuasca,

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“Authorization? That’s Outrageous”  161 opening a new flank of public policies on ayahuasca use in Brazil. Hence, in addition to drug policies and heritage policies, the religious use of ayahuasca became a subject of concern by environmental agencies, which sought to establish criteria and standards to regulate the practices of ayahuasca groups and to preserve the plant species used in producing ayahuasca. This chapter addresses the recent development of environmental legislation on ayahuasca in Brazil and its controversies. Initially, we analyze the environmental legislation in the states of Acre and Rondônia, developed in order to regulate the extraction, transport, and circulation of the plant species used to make ayahuasca. Next, we focus on the impact of such legislation on traditional populations that consume ayahuasca, as well as the controversies generated from its implementation, especially with regard to the Amazonian indigenous populations. We highlight the important and innovative character of the legislation, which involved the establishment of a number of procedures in order preserve the plant species in their natural habitat, as well as providing a series of guidelines for ayahuasca-using groups regarding the production of the brew. We note, however, that, beyond the legitimate initiative to preserve the plant species that make up ayahuasca, and the timely concerns around the progressive extraction and commercialization of ayahuasca by different groups in the Northern Amazonian states, this new environmental legislation has created novel forms of control and restriction on the practices of ayahuasca groups in Brazil, with special burdens on small urban churches and indigenous groups. It is important to note that the main Brazilian ayahuasca groups in Acre and Rondônia—Alto Santo Universal Light Christian Illumination Center (CICLU-Alto Santo), Union of the Vegetal Beneficent Spiritist Center (UDV), and Spiritist Center and Praying House of Jesus, Source of Light (Barquinha)—appear to have supported the creation of these new bureaucratic and institutional standards and regulatory parameters. As an unforeseen outcome, the environmental legislation has worked in practical terms as a means to oversee and restrict different forms of ayahuasca consumption. As a result of these dilemmas, a number of Amazonian indigenous groups have publicly positioned themselves as contesting some of the State initiatives regarding the production and circulation of ayahuasca, and establishing a new political agenda focused on the indigenous use of ayahuasca. This novelty gave rise to new demands, such as the right of free circulation of the ayahuasca and the freedom to produce and consume it beyond their territories. This recent indigenous movement has further led to the contestation of the protocols and bureaucracies stipulated by the legislation on the religious use of ayahuasca in Brazil, as they demand to establish a dialog with the Brazilian State with the aim of developing public policies that focus on the indigenous use of ayahuasca in the Brazilian territory.

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Environmental Legislation on Ayahuasca and Its Controversies As highlighted above, although the first public policies regulating the religious use of ayahuasca date from the 1980s, the environmental policies on ayahuasca began only in the late 1990s. On August 17, 1998, the Brazilian Institute of Environment and Natural Resources (IBAMA) developed the first environmental regulation that contemplated ayahuasca. Ordinance 117 stipulated that, in order to obtain an Authorization for Transporting Forest Products, ayahuasca groups should present their statutes certifying legitimate social objectives. The ordinance also requested groups to provide a declaration with an estimate of the quantity and species of forest products to be transported annually, and to prepare a reforestation project for the affected species. Yet, according to IBAMA agronomist from Acre, Edna Maia, ayahuasca extraction was uncontrolled at that time due to lack of oversight (Labate, 2014). In the 2000s, however, IBAMA began stricter policing of ayahuasca extraction and transportation. This change came at the request of the ayahuasca religions themselves, concerned with regulating extraction of the raw materials and the commercialization of ayahuasca. From July 4 to 7, IBAMA carried out several meetings with ayahuasca groups to discuss the difficulties regarding the new regulations. Many themes were addressed, such as: the possibility of carrying out forest management plans instead of reforestation, the need for the larger churches to provide greater collaboration with the smaller churches, the need to identify the origin of cultivated and wild varieties of the vine and leaf, the mapping of harvest territories on private property to avoid overlap of extraction areas, the possibility of requesting parcels from the Agrarian Reform Agency (INCRA) for churches that do not possess adequate land, replantation nurseries to replace harvested plants, tax exemption for areas that promote a management plan, identifying areas of common collection and the creation of collective harvest reserves, and exportation of material to other parts of Brazil on the condition of the implementation of a management plan (Labate, 2014). These meetings were crucial for the development of Resolution No. 4, in which IBAMA-Acre addresses the regulation related to the harvest and transportation of plant species that make up the ayahuasca (IBAMA, 2001). The Resolution states that the Authorization for Transportation of Forest Products (ATFP) requires a prior registration with IBAMA in the State of Acre. To obtain this authorization, thus, ayahuasca groups must have a National Register of Legal Entities (CNPJ) for religious institutions. According to the Resolution, the ATFP request must be made at least 15 days before the harvest date. Conversely, IBAMA has the right to visit the site before the harvest of the plant material to inspect if there are forest resources in the required quantity, as well as the right to return to the site after the harvest to check whether the norms proposed in the Resolution

“Authorization? That’s Outrageous”  163 have been followed. The issuing of the ATFP is also conditioned to the presentation of a Forest Recomposition Program by the interested party (IBAMA, 2001). One of the major points of this legislation relates to concern with the techniques for harvesting the plant species. The agency indicated that ayahuasca groups must be careful not to cause environmental damage to the natural habitat of the vine and the shrub, and they must also ensure the conservation of these species. In that regard, the State agency highlights a number of techniques that must be used to harvest these forest resources. If the established rules are disrespected or if the material is collected without authorization, the institution may be fined and lose the right to request the ATFP for 12 months. According to the document, the seized material may be granted to another institution previously registered with IBAMA in Acre (IBAMA, 2001). If one considers the increasing demand of the plant species used in its manufacture as a result of the expansion of ayahuasca use in Brazil and internationally, the opportunity for registered groups to utilize the plant materials that would be discarded represent an extremely important measure. Another crucial point of the Resolution is the proposal for the establishment of partnerships between the ayahuasca groups and the owners of areas that are being licensed for deforestation. Through this initiative, the registered groups can reach an agreement with landowners to search for the presence of the plant species in the areas that will be deforested, in order to collect the material before the deforestation takes place. This is definitely a pioneering and creative measure, since it establishes the possibility of using forest resources that ultimately would be lost in deforestation. As Thevenin (2017) points out, in the state of Rondônia, for example, the expansion of farming and ranching activities has caused the advance of deforestation, consequently affecting the native forest and the availability of these forest resources in their natural habitat. It is worth stressing, however, that the measure has a limited reach, since most deforestation in the Amazon biome occurs illegally. In 2010, almost a decade after IBAMA’s Resolution, the issue of environmental legislation regarding ayahuasca in the state of Acre was revisited. At the time, the agencies involved were the State Council of Environment, Science and Technology (CEMACT) and the State Council of Forests (CFE). The agencies developed Joint Resolution No. 4, of December 20, 2010. The Resolution substantiates some of the points previously established by IBAMA, but it also creates new procedures (CEMACT & CFE, 2010). Like IBAMA, the agencies also require the registration of ayahuasca groups in order to harvest or collect plant species. Nevertheless, unlike IBAMA’s Resolution, the Joint Resolution determines that the registration must be done, not at IBAMA headquarters in the State of Acre, but at the Acre Environment Institute (IMAC), in Rio Branco. According to the document, after harvesting the plants, the entities have 30 days to send IMAC

164  Beatriz Caiuby Labate et al. a report containing the following information: the location of the harvest site; the date on which the procedure was performed; the amount of material collected in kilograms, both vine and leaves; the amount of beverage produced in liters and the date of preparation; the procedures adopted for the extraction and collection of the material; and the annual quota used (CEMACT & CFE, 2010). One can note that one of the effects of the growing concern of environmental agencies with the exploitation of the plant species that make up ayahuasca relates to the standardization and bureaucratization of the processes regarding the harvest and transport of forest resources, hindering the capacity of certain groups that do not possess the means to fulfill all the requirements of regulatory agencies. The Joint Resolution also establishes the precautions that must be taken concerning the harvest and collection of plant species. The document reaffirms IBAMA’s measures regarding harvesting techniques and the conservation of the plant species and their natural habitat. The agencies advise ayahuasca groups to develop a recomposition plan compatible with their average annual consumption. The groups that grow the plant species on their properties must be registered with the environmental agency, and they must inform them of the quantity of resources to be exploited in the cultivated area. A pioneering point in this legislation refers to the definition of the quota of forest resources that can be extracted per harvest and also annually: 1,200 kilograms of vine and 180 kilograms of chacruna per harvest; and 4,800 kilograms of vine and 720 kilograms of chacruna leaves each year. The forest resources extracted from the groups’ own plantations are not accounted for (CEMACT & CFE, 2010). On the one hand, this measure imposes a limit on the extraction of these forest resources, contributing directly to their preservation; on the other hand, the exclusion of material collected from the plantation itself in the annual extraction quota gives the groups more flexibility regarding the production of ayahuasca, since the majority of the plants used by the groups comes from their own plantations. Finally, the agencies determined that the extraction and collection of these forest resources for the purpose of making ayahuasca by traditional and indigenous populations, as well as for family or individual use, carried out in their own areas, are exempt from licensing. Nonetheless, the agencies indicate that this exemption prevents the transport of these forest resources beyond their areas of origin. This has some practical implications for these groups, since it limits the extraction of the plant species to their territories, and it prevents the transport of the material collected in their areas to other locations. Beyond the State of Acre, it is worth noting the role of Rondônia in the environmental regulation of ayahuasca in Brazil. The Legislative Assembly of Rondônia enacted Bill 3.653, which institutes the religious freedom to use ayahuasca in the State (Rondônia, 2015). Overall, there is no novelty in relation to previous legislations. The bill reaffirms the need for registration

“Authorization? That’s Outrageous”  165 with the state environmental agencies in order to obtain an authorization to collect and transport forest resources. Unlike the procedures adopted by Acre state regulatory agencies, however, Bill 3.653 does not establish the techniques that should be adopted for the harvest of forest resources. It is noteworthy that both these measures proposed by the public agencies touch on the need of registration in order to authorize the harvest, collection, and transport of forest resources. This requirement is the focus of intense controversy among ayahuasca groups, and especially amid indigenous populations of the Amazon, who encounter several bureaucratic and legal hurdles in complying with the requirements of the environmental regulatory agencies. On this matter, it is worth highlighting that the environmental regulations on ayahuasca focused solely on the groups that fall within the context of the religious use of the beverage, whose practices have been previously recognized and regulated by the National Council on Drug Policy (CONAD, 2006, 2010). One must consider the importance of the growing political articulation between the religious ayahuasca groups in the Amazon and the drug policy regulatory agencies over the last decades, especially in the State of Acre. As Labate (2014), MacRae (2010), and Antunes (2012) indicate, the regulation processes and the public recognition of Brazilian ayahuasca religions—as occurred with the Afro-Brazilian religions decades earlier—were marked by the active participation of actors from various social segments, such as physicians, psychiatrists, social scientists, historians, policy makers, and religious representatives, among others, who lobbied for the recognition of the ritual use of ayahuasca in Brazil as a legitimate religious practice to the public authorities. Considering the increasing role of actors linked to these religions, and their articulations with regulatory agencies, it is not surprising that the development of public policies on ayahuasca had these groups as their main focus. According to Rance (2020), at first glance, indigenous populations may have been the victims of the actions perpetrated by ayahuasca religions and by the government agencies at large. Nevertheless, Rance develops an alternative explanation, presenting indigenous populations as “the least powerful players in a complex and rather acrimonious game involving a wide group of marginalized sects struggling for survival” (Rance, 2020, p. 63). Instead of portraying the indigenous populations as passive victims of a political game, however, one must bear in mind that there were no restrictions nor regulations regarding the use of ayahuasca by indigenous populations—including the right to harvest, produce, and consume ayahuasca—in their own territories. Their recent and increasing incursions in the urban ayahuasca circuits, nonetheless, has created a number of legal conundrums, since the regulation process that started in the 1980s, and that was consolidated by the Brazilian government in 2000s, focused solely on the use of ayahuasca by the religious groups. In light of this, one cannot support Rance’s (2020) hypothesis that the lack of regulation regarding

166  Beatriz Caiuby Labate et al. the indigenous use of ayahuasca is mainly due to the fact the indigenous populations had, thus far, no political strength. The lack of a specific regulation based on the demands of indigenous groups is, above all, the result of their absence until now in the urban circuits of ayahuasca consumption, which have been the object of regulation for decades (see also, Labate & Coutinho, 2014). Nevertheless, one must highlight, as DiMaggio and Powell (1983) point out, that the establishment of government policies that regulate distinct groups and practices in a similar fashion inevitably result in a homogenizing trend, to the extent that disparate organizations are institutionally constrained to assume similar practices. This phenomenon is observed in the development of environmental policies regarding ayahuasca, since the groups that fit into the religious context—which has been regulated by CONAD in the last decades—are able to meet the requirements present in the legislation, while indigenous groups often encounter institutional and bureaucratic barriers that tend to force them to adopt the religious model stipulated for the regulation of ayahuasca use in Brazil. Despite the limitations imposed by the policies in question, the growing presence, and the increasing visibility of indigenous ethnic groups in urban ayahuasca circuits, has given rise to new demands and, consequently, to the development of new tensions. The next section will analyze the controversies that arise when Indigenous Peoples face the limitations imposed by environmental legislation and the regulation of the religious use of ayahuasca in Brazil.

“Authorization? That’s Outrageous:” Ayahuasca Legislation and Indigenous Populations There is an urgent, growing concern on the part of public authorities with the conservation of the plant species that make up ayahuasca, and, as a result, the encouragement of sustainable practices by ayahuasca groups in Brazil. Despite this justifiable interest, one must highlight that the legislation at hand has also created an excessive bureaucratic burden not only for indigenous populations, but also for the smaller groups which are unable to meet the legal demands. Hence, one could argue that the environmental legislation on ayahuasca is characterized by a combination of legitimate environmental protections and selective targeting of certain groups (Antunes & Antunes, 2021). This scenario has generated a number of problems and controversies, especially among indigenous populations, as they progressively insert themselves into the ayahuasca urban circuits of Brazil. In fact, the indigenous use of ayahuasca in some of Brazil’s largest cities became more pronounced only in the early 2000s. This new phenomenon started with multicultural festivals in cities in Acre, attracting the attention of tourists, and with the promotion of workshops in large cities in Brazil, as well as retreats and

“Authorization? That’s Outrageous”  167 ceremonies for middle-class groups and foreigners (Labate & Coutinho, 2014). At the same time, the Amazonian Indigenous Peoples started a new social, political, and cultural movement, consolidating a new agenda with their demands on the use of ayahuasca. One of the events that contributed significantly to the development of this new political agenda was, undoubtedly, the II World Ayahuasca Conference, held in Acre, in 2016. The conference was organized by the Spanish NGO, the International Center for Ethnobotanical Education, Research, and Service (ICEERS). The event was attended by representatives of several indigenous ethnic groups, members of Brazilian ayahuasca religions, representatives of government agencies, as well as psychologists, sociologists, anthropologists, physicians, politicians, and local authorities (Labate & Assis, in this volume). As stated by Labate and Goulart (2016, 2019), and by Labate and Assis (in this volume), among the tensions that surfaced within the event, there were a number of discussions around the notions of “authenticity,” “originality,” and “tradition.” The discontent of the indigenous representatives was reaffirmed in the “Open Letter of the Indigenous Peoples of Acre to the II World Ayahuasca Conference” (Chacruna Institute, 2020b). The authors of the letter emphasized that, despite the considerable number of indigenous participants, they did not feel like an effective part of the creation and organization of the event. Among the main points, the letter criticized the overly academic format of the conference. According to the indigenous representatives at the event, the conference organizers should have understood that the majority of participants were not scholars, and that ayahuasca is not restricted to the scientific realm, but encompasses broader issues, such as identity politics, traditional knowledge and rituals, forms of sacredness, culture, and ancient practices. Another groundbreaking initiative that helped shape the indigenous agenda on ayahuasca regards the organization of indigenous conferences on ayahuasca. On that matter, the I Indigenous Ayahuasca Conference, held in 2017 in the Poyanawa Indigenous Land, Acre, was an important milestone. The event was attended by a number of indigenous leaders from the Juruá River and Alto Purus region, as well as public authorities from Acre (Dias, 2018; Tukano, 2019).1 One of the main results of the discussions held throughout the I Indigenous Ayahuasca Conference was the elaboration of the Internal Recommendation Letter (IRL) (Chacruna Institute, 2020a), signed by representatives of the various indigenous ethnic groups present at the event. The letter criticized the lack of respect regarding the oversight of regulatory agencies in relation to the circulation of ayahuasca among Indigenous Peoples. The IRL also presented a concern regarding “inadequate use of medicines by the nawás [non-Indigenous People] and/or churches and their commercialization, which can generate serious problems associated with their use.” The

168  Beatriz Caiuby Labate et al. letter addresses specifically, “the use of ayahuasca by the nawás in various kinds of festivals and other spaces, typically in pill form like a psychedelic drug” (Chacruna Institute, 2020a). One can note, therefore, the increasing unease vis-à-vis the misuses of ayahuasca, which has become a recurring issue on the political agenda of indigenous populations, as one can attest in Daiara Tukano’s (Chacruna Latinoamérica, 2021) comment on the issue, “the misuse of indigenous medicines is something that we have been facing for the last 500 years…. We understand the real danger that ayahuasca may be facing concerning the global unrestrained use.” However, the indigenous criticism regarding the misuses of ayahuasca is not directed only at the recreational practices by random users, but also toward nationally recognized groups, such as some of the main Brazilian ayahuasca religions, as Daiara’s speech attests: No forest, no ayahuasca. I have been hearing some claims from people who think that they will be able to prepare ayahuasca by planting it in large quantities in Hawaii, and supplying it to the world market, treating the vine as if it were an object of extractivism, a market thing, as if it were a chemical element…. If you take this away [ayahuasca] from the forest life, from this context, you are being very hypocritical and cynical, because we are defending 80% of the world’s diversity, that is found on indigenous lands…. So, there is no point in converting the indigenous medicine of the forest, ayahuasca, into a world market, national market, church, or whatever, if the discourse does not relate to the day-to-day ethical practice of respecting life. There is no use in talking about the “Queen of the forest,” “the army of the forest,” if you are not on our side, defending the territories where life still exists. (Chacruna Latinoamérica, 2021, our translation) Daira’s reference to the Queen of the forest, the main spiritual guide of several Santo Daime branches, attests to the underlying tensions between Indigenous Peoples and ayahuasca religions. These tensions revolve around issues and notions of ancestrality and tradition, and they highlight the divergences and the critical stance of some indigenous leaders regarding the claims of certain ayahuasca religions as the bearers of the knowledge behind the ritual use of ayahuasca. This criticism can be attested also on the comment made by an indigenous representative at the II World Ayahuasca Conference, according to which: “While Mestre Irineu [the founder of Santo Daime] is a 100 years old, we are millenary” (MacRae, in press). Notwithstanding the criticism of Indigenous Peoples regarding Brazilian ayahuasca religions, it is important to highlight that, in 2006, CONAD established a number of measures to safeguard the “responsible use” of ayahuasca. These recommendations were developed by a multidisciplinary working group, which included scholars from the fields of anthropology, psychiatry, pharmacology, as well as representatives of the

“Authorization? That’s Outrageous”  169 government and of the main Brazilian ayahuasca religions. According to the report: The MWG, after several discussions and analyses, where pluralism and the encounter of ideas prevailed, considered the inadequate use of ayahuasca to be: the practice of commerce, the touristic exploitation of the drink, the use associated with illicit psychoactive substances, the use outside of religious rituals, therapeutic activity without the support of scientific research privative of professions regulated by the law, quackery, propaganda, and other practices that may place at risk the physical and mental health of individuals. (CONAD, 2006, p. 9) It is noteworthy that, although both CONAD’s report and IRL share a concern in regard to the commercialization of ayahuasca, the notions of misuse put forward by the Brazilian drug agency and the indigenous representatives are not the same. While CONAD defines the religious use of ayahuasca as the only legally recognized practice, stating that the healing rituals of some of the Brazilian ayahuasca religions are actually religious practices and should not be considered therapy, per se, the IRL recognizes the legitimacy of indigenous therapeutic practices with ayahuasca and defines ayahuasca as a traditional medicine. In addition, the concern of indigenous representatives with the possibility of the recreational use of ayahuasca is also extended to Brazilian ayahuasca religions. One can note, therefore, that the notion of responsible use of ayahuasca is not a consensus. On the contrary, it is a term in constant dispute that has different meanings, connotations, and implications, depending on the actors involved. Besides the issue of the potential misuses of ayahuasca, indigenous circulation with ayahuasca is another extremely relevant subject addressed by the letter and by many indigenous representatives on multiple occasions. Among the main points of the IRL, it is possible to highlight the suggestion to register indigenous associations as “religious institutions” in order to harvest the plant species and circulate ayahuasca outside their territories. According to CONAD, the groups that consume ayahuasca are required to have a National Registry of Legal Entities (CNPJ) to receive and send shipments of ayahuasca, as well as to transport the drink that has been brewed. The possibility of applying for registration as a religious institution, as stipulated by environmental legislation, is the subject of controversy among indigenous representatives. On the one hand, it is possible to find statements that point to the use of ayahuasca as an indigenous religion, a priori, questioning the need to institutionalize something that is already an intrinsic part of indigenous religiosity. This stance is clear in the speech of Biraci Brasil, who was prevented from traveling with ayahuasca in airports in Acre on more than one occasion. “Authorization? That’s outrageous. The traditional and millennial knowledge of Christians, who place their

170  Beatriz Caiuby Labate et al. Bibles everywhere in the world (inside hotels, on airplanes, in churches…), or Muslims with the Koran, that are respected all over the world. What about ours?” (Santos, 2018, p. 136, our translation). However, there are leaders who take a different stance, positioning themselves in a more radical way regarding public authorities. Some indigenous leaders question the legitimacy of the legal mechanisms established by public agencies regarding the uses, production, and circulation of ayahuasca. This position is evident in the speech of Francisco Pianko, an Ashaninka leader: If we are going to use these legal instruments and create organizations to be able to circulate with our ayahuasca, we will be giving in, weakening ourselves…. It is clear that this cannot be solved just by putting it on paper. This is a deeper process. (Santos, 2018, p. 138, our translation) It is striking that the procedures stipulated by the regulatory bodies are criticized not only by indigenous leaders, but also by public authorities. In a speech at the I Indigenous Ayahuasca Conference, Claudia Aguirre—a member of the state attorney’s office of the State of Acre—addressed the issue of the circulation of ayahuasca by Indigenous Peoples, arguing that “it is not the white man, from the outside, who is going to regulate this. Nor can it be. Do not give us that power. The Convention 169 states that the traditional methods of conflict Resolution must be respected” (Santos, 2018, p. 54, our translation). Aguirre’s speech mentions the 1989 Convention 169 of the International Labor Organization (ILO) on Indigenous and Tribal Peoples, drawing on an international treaty to suggest that Indigenous Peoples have legitimacy to build their own mechanisms to regulate their practices and knowledge. Aguirre also referred to the convention to question the need to register indigenous associations in order to circulate with ayahuasca in Brazil. Do you need a register to defend rights? Strictly speaking, no. Because, if one considers Convention 169, there is no need of an association, nor the need of legal register, to exercise one’s rights. That is not necessary, also, according to the Federal Constitution…. If CONAD allows the religious use, why doesn’t it allow the sacred use within the indigenous traditions, which is granted in the Federal Constitution? I don’t guarantee that the Judiciary system will accept this stance. But this is a daily struggle. Convention 169 did not fall from the sky, it was developed because several people started to say, “This notion of human rights does not serve us much.” Convention 169 was very much a rereading of this [notion of human rights]. So, you have to bear that idea in mind and make use of it. (Santos, 2018, p. 151, our translation)

“Authorization? That’s Outrageous”  171 Aguirre’s speech reinforces the criticism of indigenous representatives regarding the lack of legitimacy of the Brazilian State to elaborate public policies that address indigenous demands, resorting to an international legal device whose scope goes beyond the limits of the national State. The dissatisfaction concerning the Brazilian State and the recourse to international law was also corroborated in the statement of Daiara Tukano after the end of the I Indigenous Ayahuasca Conference. Daiara even suggests the mobilization of international organizations such as the United Nations Educational, Scientific, and Cultural Organization (UNESCO) to give visibility to the cause of indigenous use of ayahuasca: It was a very important conversation because we came to the conclusion that this medicine is part of our origins. We realized that Brazilian laws and also the international treaties already recognize indigenous rights as an original right. And the most important indigenous right relates to their cultural practices, which is their identity. Thus, the circulation with our medicines and our ceremonies are part of an original right, and the original right in Brazil is a permanent clause. The original right comes before the implementation of other laws, because we are the original people of this land. In light of this concern, we decided to articulate ourselves on how to establish a dialogue with public authorities, with the Brazilian government, but also with other international agencies such as UNESCO, and even with other countries, to make it clear what indigenous rights are. (Crônicas Indigenistas, 2018) Daiara’s speech is important in two levels. On the one hand, as in Aguirre’s speech, the mention of international treaties and UNESCO highlights the mobilization of legal instruments developed in the international domain. This stance inserts indigenous claims in a broader and universalistic set of rights that goes beyond the jurisdiction of the Brazilian State. On the other hand, the notion of “original right” highlights the specificity of the status of Indigenous Peoples under Brazilian law and the limits of its legal instruments to deal with their demands. These issues reemerged in the following Ayahuasca Indigenous Conferences. In the declaration made after the second conference, the Indigenous Peoples stressed the need to define strategies in order to obtain the authorization for the circulation of “ayahuasca,” and to demand the creation of institutional arrangements for applying and disseminating traditional rights (Chacruna Institute, 2020b). In turn, the declaration presented at the Third Indigenous Conference on Ayahuasca requested that environmental laws recognize and valorize indigenous wisdom and practical knowledge regarding the management of natural resources, stressing the need of the support of licensing, monitoring, and control agencies (Chacruna Institute, 2020c).

172  Beatriz Caiuby Labate et al. In a broader perspective, therefore, the insertion of Indigenous Peoples in the urban circuits of ayahuasca consumption and the lack of legislation that specifically addresses their demands have created a series of legal problems and public controversies. These controversies have given rise to a new set of demands, such as the freedom to produce, circulate with, and minister ayahuasca beyond their territories. This recent protagonism clashed, however, with the protocols and bureaucracies stipulated by the legislation on the religious use of ayahuasca in Brazil. As a result, the representatives of the Indigenous Peoples have organized themselves, creating new forums to publicize their political agenda and to demand a dialog with the Brazilian State in order to develop public policies regarding the indigenous use of ayahuasca in Brazilian territory. Beyond the controversies and their unfolding, one thing is certain: The increasing presence and the growing protagonism of Indigenous Peoples in the public debate regarding the use of ayahuasca in Brazil is a trend that is here to stay and that has blurred established borders and categories, creating new political alliances in the ayahuasca universe.

Conclusion This chapter presented the environmental policies on the use of ayahuasca in Brazil and their controversies. As argued, despite the legitimate and necessary interest in preserving the plant species that make up ayahuasca, this legislation has created a series of impediments for groups with difficulties in adapting to these bureaucratic and legal requirements, especially for Indigenous Peoples and small religious groups outside the Amazon (the latter we did not explore much here). It would be premature to say that this is a deliberate discriminatory act against Indigenous People, since they have complete autonomy to collect the plants, produce, and consume ayahuasca in their territories. Nevertheless, one cannot fail to mention that the development of public policies, in dialog with the main Brazilian ayahuasca religions in the last decades, has created a specific frame for the regulation of ayahuasca use in Brazil. Despite the generic understanding and rhetoric of law enforcement, government authorities, scholars, and representatives of the Brazilian ayahuasca religions, that ayahuasca comes from Indigenous People in the Amazon, since the early regulation conversations emerged in the 1980s in dialog with some Santo Daime branches and the UDV, the following 2010 CONAD Resolution proposes a model that focuses solely on the religious use by these groups, as such. As a result, “religious” use appears to have become the only legitimate practice in the country. This specific legal frame, in addition with the current silence regarding the rights of Indigenous Peoples beyond their territories, raises new public problems. These controversies become evident as the indigenous use of ayahuasca is now inserted in a broader context of ayahuasca consumption in large urban

“Authorization? That’s Outrageous”  173 centers in Brazil, corroborating the urgent need for revisiting the current regulations, and adapting and creating public policies that meet the specific demands and needs of Indigenous Peoples. According to our fieldwork, there are many claims that these resolutions were strategic decisions taken behind closed doors by ayahuasca churches that consider themselves the holders of ayahuasca traditions in Brazil—such as Alto Santo, UDV and Barquinha—in order to stop the exportation of ayahuasca plant species, and the brew, outside of the Amazon; both inside Brazil and abroad. The main concern of these more orthodox groups has been with the practices of neoayahuasqueiro groups (Labate 2004, Labate & Araújo, 2004) and dissident groups that derive from the main Brazilian ayahuasca religions, considered by some as “non-sacred,” “non-religious,” “commercial,” or “non-responsible” uses, as well as with the large production and exportation of ayahuasca both internally and externally, especially to meet the increasing demand of a foreign clientele. These legitimate environmental concerns walk hand-in-hand with judgments on what are the proper and acceptable uses of ayahuasca, affecting not only Brazilian neoayahuasqueiros and foreigners who try to obtain ayahuasca in Brazil to consume in ceremonies in their home territories, but Indigenous Peoples as well. This new legal panorama has generated a growing demand for all ayahuasca groups to organize and present themselves according to the requirements attached to the categories of “organized church” and “religion.” Regardless of the intentions and projects of some ayahuasca religions, we cannot ignore that this religious frame presents constraints, even if incidentally, for indigenous groups. One cannot challenge that, in practical terms, the legislation has acted in a way that supports some groups, while restricting the actions of others. These new resolutions create an example worldwide by raising the pioneering issue that people interested in consuming ayahuasca need to pay attention to its sustainability. However, the logic developed to guide environmental legislation creates an important problem concerning public policies on ayahuasca in Brazil: They grant legal recognition and legitimacy to a limited number of groups that have the geographical, financial, and institutional structure to comply with intricate State regulations, at the expense of the impossibility of legal recognition for a large part of the groups and traditional and contemporary populations that consume ayahuasca. As we demonstrated, this legal constraint has created a burden for Indigenous Peoples. As a result, these populations have organized themselves politically in order to contest some of the government’s actions, and to fight for the legal right to perform indigenous ceremonies outside their territories. In turn, the strengthening of the indigenous political agenda, both on this front and in relation to the topic of cultural heritage (see Labate & Assis, in this volume), has shaken the public debate, questioning the State’s capacity to regulate the indigenous use of ayahuasca, and contesting the self-proclaimed role of ayahuasca religions as the bearers of ayahuasca tradition in Brazil. As ayahuasca scholars, it is not our goal to challenge the

174  Beatriz Caiuby Labate et al. importance of ayahuasca religions as legitimate traditions, but to address the consequences of the religious framing of the legislation and its impacts on certain populations. That said, we must stress the necessity for local governments to establish a dialog with these groups in order to develop alternative means to protect these plant species and to promote ayahuasca sustainability without hindering their practices.

Note 1 The Indigenous Peoples of Acre held two more Indigenous Ayahuasca Conferences in 2018 and 2019. As a result, two letters were published that update the demands and stance of Indigenous Peoples regarding the use of ayahuasca (Chacruna Institute, 2020b, 2020c).

References Antunes, H. F. (2012). Droga, religião e cultura: um mapeamento da controvérsia pública sobre o uso da ayahuasca no Brasil [Drug, religion and culture: A mapping of the public controversy on ayahuasca use in Brazil] (Master’s thesis). University of São Paulo. Antunes, H. F., & Antunes, I. (2021, May 20). Controversies on the environmental legislation on ayahuasca in Brazil. Chacruna Institute. https://chacruna.net/ ayahuasca_conservation_laws_brazil/ Brazilian Institute of Environment and Natural Resources (IBAMA). (2001). Portaria n.º 4 [Ordinance n. 4]. Acre. http://www.mestreirineu.org/portaria_004_ ibama.htm Chacruna Institute. (2020a, January 30). Declaration of the 1st Brazilian Indigenous Conference on Ayahuasca. Chacruna Institute. https://chacruna.net/ declaration-of-the-1st-brazilian-indigenous-conference-on-ayahuasca/ Chacruna Institute. (2020b, January 30). Declaration of the 2nd Brazilian Indigenous Conference on Ayahuasca. Chacruna Institute. https://chacruna.net/ declaration-of-the-2nd-brazilian-indigenous-conference-on-ayahuasca/ Chacruna Institute. (2020c, January 30c). Declaration of the 3rd Brazilian Indigenous Conference on Ayahuasca. Chacruna Institute. https://chacruna.net/ declaration-of-the-3rd-brazilian-indigenous-conference-on-ayahuasca/. Chacruna Latinoamérica. (2021, September 6). Perspectivas Indígenas: “Marco Temporal” e PL da Ayahuasca [Indigenous perspectives: “Temporal milestone” and the ayahuasca bill]. https://chacruna-la.org/marco-temporal-e-ayahuasca/ Crônicas Indigenistas. (2018, January 1). Daiara Tukano “Trocas e globalização da ayahuasca” [Daiara Tukano: “Exchanges and the globalization of ayahuasca”] [Video file]. https://www.youtube.com/watch?v=9QidmaDBEHA. Dias, M. (2018, July 12). First Indigenous ayahuasca Yubaka-Hayra conference in Acre: The wisdom of the ancients. Chacruna Institute. https://chacruna. net/1st-indigenous-ayahuasca-conference-yubaka-hayra-acre-brazil-the-wisdom-of-the-elders/ Dimaggio, P. J., & Powell, W. W. (1983). The iron cage revisited: Institutional isomorphism and collective rationality. American Sociological Review, 48(2), 147–160.

“Authorization? That’s Outrageous”  175 Ermakova, A. (2022, July 15). The global ayahuasca boom: What about the conservation of the ayahuasca vine? Chacruna Institute. https://chacruna.net/ ayahuasca-vine-globalization-conservation/ Labate, B. C. (2004). A reinvenção do uso da ayahuasca nos centros urbanos [The reinvention of ayahuasca use in urban centers]. Mercado das Letras. Labate, B. C. (2014, June 30). Legal, ethical, and political dimensions of ayahuasca consumption in Brazil, v. 2.0. Original text in Portuguese: Labate, B. C., & Goulart, S. L. (Eds.). (2005). O Uso Ritual das Plantas de Poder [The ritual use of plants of power], pp. 397–457). Mercado de Letras. https://www.erowid. org/chemicals/ayahuasca/ayahuasca_law30.shtml. Labate, B. C., & Araújo, W. S. (Eds.). (2004). O uso ritual da ayahuasca [The ritual use of ayahuasca]. Mercado das Letras. Labate, B. C., & Assis, G. L. (in this volume). A genealogy of the ayahuasca cultural heritage registration process in Brazil. Labate, B. C., Cavnar, C., & Gearin, A. K. (2018). The world ayahuasca diaspora: Reinventions and controversies. Routledge. Labate, B. C., & Coutinho, T. (2014). “O meu avô deu a ayahuasca para o Mestre Irineu”: reflexões sobre a entrada dos índios no circuito urbano de consumo de ayahuasca no Brasil [“My grandfather gave Mestre Irineu ayahuasca:” reflections on the entry of indigenous populations into the urban circuit of ayahuasca consumption in Brazil]. Revista De Antropologia, 57(2), 215–250. https://doi. org/10.11606/2179-0892.ra.2014.89113. Labate, B. C., & Goulart, S. L. (2016). Religião, política e cultura: o uso da ayahuasca como patrimônio cultural [Religion, politics and culture: The use of ayahuasca as cultural heritage]. Paper presented at the 30th Brazilian Anthropology Association Conference (RBA). João Pessoa. Labate, B. C., & Goulart, S. L. (2019). A II Conferência Mundial da Ayahuasca: novas configurações locais e globais [The II World Ayahuasca Conference: New local and global configurations]. In B. C. Labate & S. Goulart (Eds.), O Uso de Plantas Psicoativas nas Américas [The use of psychoactive plants in the Americas] (pp. 301–325). Gramma/NEIP. MacRae, E. (2010). The development of Brazilian public policies on the religious use of ayahuasca. In B. C. Labate & E. MacRae (Eds.), Ayahuasca, ritual and religion in Brazil. Equinox. MacRae, E. (in press). Eu brilho na floresta [I shine in the forest]. Editora Yagé. Moran, K. (2017, October 2). Is ayahuasca really disapearing? Chacruna Institute. https://chacruna.net/ayahuasca-really-desappearing/ National Council on Drug Policies (CONAD). (2006). Ayahuasca Multidisciplinary Working Group – MGW Ayahuasca – Final Report. Brasília, DF. https:// www.bialabate.net/wp-content/uploads/2021/11/GMT_CONAD_English.pdf National Council for Drug Policy (CONAD). (2010). Resolution No.1, January 25, 2010. Brasília, DF. https://www.bialabate.net/wp-content/uploads/2022/03/ Resolution_1_CONAD_2010.pdf Rance, D. (2020). An ancient medicine in search of a novel legal paradigm [Doctoral dissertation]. University of Brasília. Rondônia, Legislative Assembly. (2015). Lei Ordinária n.º 3.653, de 9 de novembro de 2015. Institui a liberdade religiosa da hoasca no estado de Rondônia e dá outras providências [Bill 3.653, of November 9, 2015. This bill institutes the religious freedom of hoasca in the state of Rondônia and makes other

176  Beatriz Caiuby Labate et al. provisions]. https://www.bialabate.net/wp-content/uploads/2016/04/Lei-3653Rondonia-2015.pdf Santos, F. L. (2018). “Índio não usa droga, ele usa medicina”: a criminalização da ayahuasca indígena [“Indigenous Peoples don’t take drugs, they take medicine:” The criminalization of Indigenous ayahuasca] [Master’s thesis]. Instituto do Patrimônio Histórico e Artístico Nacional (IPHAN), Rio de Janeiro. State Council of Environment, Science and Technology (CEMACT) and the State Council of Forests (CFE). (2010). Resolução Conjunta CEMACT/CFE n.º 4, de 20 de dezembro de 2010 [Joint Resolution CEMACT/CFE n. 4, December 20, 2010]. Acre. https://www.bialabate.net/wp-content/uploads/2008/08/ Resolucao_CEMACT_CFE_N_004_20_Dez_2010.pdf. Suárez Álvarez, C. (2019, August 7). Pieces of ayahuasca, a cash crop. Chacruna Institute. https://chacruna.net/pieces-of-ayahuasca-a-cash-crop/ Suárez Álvarez, C. (2020). We are harvesting the ayahuasca vine at an alarming rate. Kahpi.net. https://kahpi.net/harvesting-ayahuasca-exploitation/. Thevenin, J. M. R. (2017). A natureza nos caminhos de ayahuasca: territorialidade, arranjos institucionais e aspectos fitogeográficos de conservação florestal na Amazônia (Rondônia/Brasil) [Nature on the paths of ayahuasca: Territoriality, institutional arrangements, and phytogeographic aspects of forest conservation in the Amazon (Rondônia/Brazil)] [Doctoral dissertation]. São Paulo State University (UNESP). Tukano, D. (2019, February 14). The first Indigenous Ayahuasca Conference (Yubaka Hayrá) in Acre demonstrates political, cultural, and spiritual resistance. Chacruna Institute. https://chacruna.net/the-first-indigenous-ayahuascaconference-yubaka-hayra-in-acre-demonstrates-political-cultural-and-spiritualresistance/

10 Debates on the Legality and Legitimacy of Yage in Colombia Alhena Caicedo Fernández

The current global expansion of psychoactive substance consumption—in particular, those of plant origin traditionally used by indigenous groups— opens the debate on the new conditions of legitimacy and legality to be dealt with by their users in new contexts. The case of yage or ayahuasca, a psychoactive drink used by many Amazonian peoples, provides evidence of the accelerated extension of the field of consumption, from South America, its birthplace, toward Europe, North America, Asia, and Australia. It also allows us to examine the tensions that the new forms of use, new users, and new contexts create with regard to the production of this psychoactive decoction and the survival of the cultural practices that have sustained its continuity among the Amazon’s Indigenous and non-Indigenous Peoples. To examine the new forms in which yage is being used implies, on the one hand, a consideration of the fact that when we speak of yage, we refer to both the liana (Banisteriopsis caapi) and the drink produced by mixing it with other plants and additives, including chagropanga (Dyplopterus cabrerana) and chacruna (Psychotia viridis). This physical and biological dimension of yage goes hand-in-hand with an anthropological and historical dimension. In contrast to other contexts, where ayahuasca has only recently appeared, here, we look at regions in which its ritual use is a long-standing practice, and falls within a panoply of cultural systems. In this sense, it is important to understand the networks of social relations that have constituted the legitimacy of its uses, so as to recognize the implications of its insertion within the dynamics of the market system. An approach to the political economy of yage must recognize the situated nature of the practices and the logic under which it has spread toward different uses and different contexts; first, within the national arena of the countries of the Amazon Basin, and then, internationally. The analysis would be incomplete, also, if we were to fail to consider the ecological dimension and the impact of the current forms of exploitation of natural resources in this new economy. The purpose of this chapter is to outline the current legislation that applies to yage in Colombia from a perspective that considers this political ecology. Our point of departure is to understand that the ritual use of yage has historically been included within the framework of interethnic relations

DOI: 10.4324/9780429001161-11

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178  Alhena Caicedo Fernández between Indigenous and non-Indigenous Peoples; specifically, regions of the Amazon Basin. These forms of relationships have been measured, at least in the last 200 years, by Latin American national States in a slow process of configuration. Accordingly, to understand the legal situation of yage beyond reviewing the current regulation, there exists the need for an in-depth examination of the social and cultural senses and meanings that historically have rendered the practice legitimate in the country, and that, in turn, today, guarantee its forms of legality. In the Colombian case, we can see how the nation-State is a central reference to understand the regime of meaning, which encompasses cultural practices such as the use of ayahuasca. Hence, despite having social, political, and economic characteristics similar to those of other countries in the region, in Colombia, ayahuasca has a particular meaning linked to the populations that consume it and to the way in which the State identifies this populations. What Rita Segato (2004) calls the “national configuration of diversity” is precisely an analytical key to anthropologically understand the historical depth of the production of difference, anchored in the space-time of the nation and the State. I propose a contextualization of the uses of yage in Colombia, and the recent transformations of the field, in relation to its expansion toward new contexts and the emergence of the new actors. I then present a number of recent problematic cases that reveal the current tensions in relation to the legitimacy and legality of the new uses. Following this, I outline the existing national and international legal frameworks that can be applied to yage. Finally, I highlight a number of conclusions on the current threat it faces in its process of expansion, and the defense and protection mechanisms that may serve to preserve it.

Uses of Yage in Colombia In Colombia, the use of yage is associated with the cultural traditions of a number of indigenous communities of the East Tukano (Vaupés) and the West Tukano (Siona, Cofanes, and Coreguajes), and the Inga and the Kamëntsá linguistic families, widespread in the departments of Putumayo and Caquetá in northwest Amazonian, which are currently the region and the use of yage most widely recognized. Although the indigenous origin of the practice is commonly accepted, the use of yage is not exclusive to the indigenous. For the Indigenous and non-Indigenous Amazonian Peoples in the Putumayo Caquetá region, the ritual use of yage is a common practice used, above all, for two important purposes. The first involves specialized yageceros, better known as curacas, who, as part of their training, must consume different types of yage for years before being considered “taitas.” The other is that it is used by these curacas as a “remedy” with which they clean the body and cure certain types of disease and misfortune. The arrival of yage in the cities of Colombia’s highlands is related to the mass migration in the 1950s of poor populations from the jungles.

Debates on the Legality and Legitimacy of Yage in Colombia  179 However, the expansion of its use, as it is known today, began in the 1990s, when certain intellectual and artist circles in the city became interested in the “magical” practices of the Amazon’s Indigenous Peoples. In contrast to previous decades, this interest caused many of them to travel to the jungle, and meant that the most renowned curacas of the time were invited to the city to host yage sessions. Colombia’s period of violence beginning in the 1990s in regions such as Putumayo meant that these parts of the country were out-of-bounds to tourism. Thus, in contrast to parts of the Peruvian and Ecuadorian Amazon that, around the same time, became a destination for foreigners interested in yage, in Colombia, the yagecero region of Putumayo closed off to external influence as a result of the conflict. The expansion of ritual use soon acquired an urban Andean character, at the same time as it started to become established in middle-class sectors that it had never before reached. The elitization of the ritual use of yage, understood as its adaptation to the urban middle class of cities such as Bogotá, Medellín, and Cali, did not happen in a vacuum. Until only a short time before, yage and other elements associated to the imaginary of the Amazonian Indians, were considered trickeries and popular beliefs of little value, or fetishes of backward and pre-modern mentalities, when not reduced to savagery and demonic witchcraft. In fact, the Indigenous Peoples had never enjoyed full citizen rights and were under the guardianship of the Catholic Church. The 1980s witnessed an intensification of the nation’s social discontent with respect to the institutional crisis and violence. An enormous mobilization of social sectors, among them the indigenous movement, and a peace process initiated with a number of guerrilla groups, led to a National Constituent Assembly that gave rise to a new constitution. As part of a global movement in which various countries enacted structural reforms, Colombia adopted multiculturalism as a State policy in the Constitutional Charter of 1991. From that moment on, the State recognized the cultural diversity of the nation, supported the ethnic difference of indigenous communities, and established a policy of differential rights for those peoples considered ethnic and culturally different. The social value placed on the indigenous brought about by these transformations served as a basis for the expansion of the use of yage over the next 20 years. In Colombia, the national imaginary inevitably associates yage with the indigenous. In other words, it is impossible to speak of this psychoactive substance without making a diaphanous connection with the historically constituted social representations of the “Amazon Indians” in common sense. The negative moral burden of these representations, influenced by Catholicism, began to shift toward a more positive pole, allowing a practice previously stigmatized as “witchcraft” and popular charlatanism to begin to be recognized as “knowledge” and part of a national cultural heritage (Caicedo Fernández, 2015). In Putumayo-Caquetá, the most extensive use of yage has been therapeutic; people look for a curaca to use the plant mixture to cure them from

180  Alhena Caicedo Fernández disease and misfortune. With the arrival of the yagecero taitas to the cities, many urban enthusiasts began to join yage rituals within the context of the same idea of seeking to be cured; a logic that has been positioned as the authentic and legitimate way to use the sacred plant. This being the case, it is important to mention that, in contrast to other regions of the Amazon Basin, in Colombia, the legitimate way to use yage has been for therapeutic purposes, taken in nightly yage sessions. Something entirely different happens in Brazil, where the tradition of the historical relations between the Indigenous and non-Indigenous had its own path of development, and where use has extended and become legitimate, especially, in a religious context, as adopted by the different ayahuasca churches, more closely associated to the reinventions of the caboclo world than to the customs of the Indians (Feeney & Labate, 2012). This also differs from, for example, in Iquitos, Peru, where the extended legitimate modality for yage consumption involves “diets,”—a practice taken from the use of ayahuasca as training for curacas—that has been simplified and standardized to serve new audiences (Gearin & Labate, 2018; Suárez Alvarez, 2018). Since they began to travel to the city, the indigenous yageceros have positioned themselves as the legitimate representatives of an “ancestral tradition” that, until then, the Colombian State had been unwilling to recognize. This association, far from being trivial, currently constitutes the nucleus of its legitimacy and legality. How? With its arrival to the cities and the expansion of the practice among the professional middle classes, ritual use began to be associated to the concept of “traditional indigenous medicine.” Far from being an equivalent reference, this notion simplified the use of the psychoactive substance and standardized it under the precept of the understanding of Western medicine, at the same time, rapidly turning it into a legible reference for the multiculturalist State. As a synecdoche of traditional indigenous medicine, the use of yage became popular in many cities at the beginning of the twenty-first century, and was soon available on the alternative medicine market. Thus, despite there being no direct legislation relating to yage, the legitimacy of its use is comprised as part of the constitutional rights of the Indians to live by their culture, including their medical systems. Legality, for its part, depends on the constitutional recognition that the State offers to Indigenous cultures.

New Uses, New Actors1 Beyond national regulations, the legal use of yage is framed in another type of legislation undersigned by Colombia within the international framework. In principle, we have Agreement 169 of the International Labor Organization (1989) that recognizes the rights of Indigenous and tribal Peoples, and is currently the legal platform that supplements the constitutional recognition of these communities. Nevertheless, the emphasis on the therapeutic use and the progressive process of medicalization, which places yage

Debates on the Legality and Legitimacy of Yage in Colombia  181 as “traditional indigenous medicine” in the alternative medicine market, have been influenced by the World Heatlh Organization (WHO) and Pan American Health Organization policy, focusing on the concept of traditional and alternative medicine (WHO, 2013; Garzón, 2018). These, in turn, have guaranteed their inclusion in the legislation that currently regulates health services. Specialized yageceros have adapted their practice to suit the growing urban middle-classes, looking to find new forms of well-being. In the city, yage is offered regularly—always by a taita—in one-night sessions, organized in ritual spaces adapted to the required conditions.2 The new yagecero taitas currently constitute an interface between tradition and innovation. On the one hand, their training has been shorter and less intensive than the traditional indigenous curacas, and they have adapted their language and rituals to the new audiences. On the other hand, although they have concentrated in cities, their legitimacy depends on being able to demonstrate a link with that which is considered indigenous tradition (Caicedo Fernández, 2015). That said, for the new consumers, yage has become a practice recognized—not exempt of criticism—as just another within the enormous panoply of alternative medicine therapies. That said, yage maintains its strong spiritual meaning. To this extent, and although we can affirm that the emphasis on the use of yage has involved the therapeutic dimension, the truth is that the religious or spiritual component is obviously present among the motivations of the new users and much more significantly so than before. Thus, even though yage has been adapted to the city, its commercial circulation has been partially restricted by the consumers themselves. In recent years, thanks to the diminishing armed conflict in Putumayo, international yagecero tourism has increased in cities such as Mocoa, revealing how certain yage use modalities in the country are articulated to international circuits of the spiritual market, connecting emblematic locations of Amazonian shamanic tourism, new forms of consumption, and global flows, groups, and user networks. Although this international facet of yage is not yet well known in the country, it has given rise to debate in relation to national regulation, due to, among other reasons, the detention of yagecero taitas abroad, a number of cases of deaths of foreigners in yage sessions, and to conflicts that have emerged because of the support and authority of specialists, a topic we will touch upon further on in this article (Ayahuasca Defense Fund, 2022). The main international legal framework that affects yage is the inclusion of DMT, one of the chemical components included in the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances’ (1988) list of controlled substances, ratified in Colombia through Law 67 of 1993. This has promoted the prohibition of the consumption of ayahuasca in various countries. However, in Colombia, the regulatory clash is partially settled through constitutional recognition. Nevertheless, the new modalities of urban consumption begin to put pressure

182  Alhena Caicedo Fernández on the multicultural approach to the recognition of the practice as exclusively indigenous. Currently, the urban population—and not the Indian— consumes half of the yage produced in Colombia that circulates outside of the indigenous territories. The paradox of the new uses consists in the fact that, despite gaining more ground and legitimacy among the Indigenous and non-Indigenous Population, its legality depends on the differential policy and ethnic recognition of multiculturalism. For the same reason, the indigenous yagecero communities have won acclaim in the field, positioning themselves as key political actors in its current reconfiguration. However, not only do they face the commodification of yage outwards, but the social, economic, and political effects of this new economy also affect the communities in different ways. One of the responses of the indigenous organizations to the conditions promoted by the expansion of yage was the development, at the beginning of the 2000s, of the Union of Indigenous Yagé Medics of the Colombian Amazon (UMIYAC) Medical Code of Ethics (2000), developed under the guidance of the Amazon Conservation Team. The document established a series of behavioral guidelines aimed at indigenous taitas to avoid corrupting the traditional forms of yage use vis-à-vis the growing commodification. The UMIYAC was constituted as the main and most renowned association of indigenous yageceros, and over the last 20 years, had to face a number of crises due, among other things, to the difficulty of claiming to be an association that brings together the specialists of a practice that, by definition, is more susceptible to conflict than it is to alliances (Caicedo Fernández, 2013). Nevertheless, within some indigenous communities, yage acquired a renewed central value in the political decision-making of the traditional authorities and in the relationships with external actors (Musalem, 2016). The experience gained by the indigenous authorities over these years means that, freed from its sources of funding, the UMIYAC has been consolidated from the inside out, through the judicious work of a number of leaders that have a sound understanding of the relationship between what is happening with the use of yage at different scales, and the national and international regulatory frameworks. Accordingly, the role of indigenous organizations has become stronger, not only because they are key in the legitimation of the current uses of yage, but also because their political interest lies in defending the monopoly of yage production and the uses they consider correct as their own.

Following the Legitimacy of the New Uses The legitimacy regime associated to the social representations of indigenous authenticity and its sanctioning by the State, currently encompassing the urban offer of traditional medicine, have led to myriad strategies focusing on the simulation and performance of Indianness by Indians and non-Indians, and taitas and non-taitas, interested in taking part in this new

Debates on the Legality and Legitimacy of Yage in Colombia  183 market. The number of new yagecero taitas who offer yage sessions and travel perpetually throughout the country and abroad has grown exponentially. Not all of these characters are taitas, nor have they followed the training processes that taitas normally follow. Some belong to indigenous communities, others do not; many are apprentices, followers of yageceros, or regular users who travel and sell themselves as indigenous doctors. The logic of shamanic power associated with yage has transformed notably (Caicedo Fernández, 2018). Three questions seem fundamental to guarantee a public: performativity, including the colorful ritual paraphernalia; reference to, and the demonstration of, an association with one or more indigenous teachers of the Putumayo; and the maintaining of a certain distance from the place of origin. Added to these strategies are certain mechanisms of official recognition through certifications issued by different indigenous authorities recognized by the Colombian State. Beyond whether we are talking about communities that use yage, these authorities use the power of official recognition to vouch for traditional doctors through the legislation in force under agreement 169 of the ILO and the Constitution. Official documents from local authorities, such as diplomas, certificates, declarations, and cover letters— although not systematically so—are used in different and creative ways to legitimate the profession, to the extent that it is possible to validate them before the institutions. The commodification generates a political use of the recognition of traditional doctors and the consequent loss of references of a real authority relating to the practice. The weight of the symbolic reference of Indianness as the legitimator of yage use in Colombia is, without doubt, exceptional. Some time ago, a recognized European therapist came to the country to host workshops that included yage sessions framed within a novel proposal that sought to explore new therapeutic uses for ayahuasca. They were well received in Bogotá’s ayahuasca circles, but very few agreed to pay the price for the workshop, which exceeded a normal yage session in the city by a ten to one ratio. The experience was not pleasant for any of the participants, and they all manifested their discontent with regard to how the sessions unfolded. Besides the price, they eloquently complained about the therapist’s manners, language, and how he treated them; not only did he manifest, in their understanding, an unusual arrogance, “typical of Europeans,” but he openly disregarded the rhythms and manner in which the ritual is carried out, and the way in which a taita normally behaves toward the participants in a session. One of the participants went as far as saying, “Now they come here from Europe, thinking they can teach the taitas how to take yage! They charge three times the normal price, and end up insulting the participants.” The anecdote is a good illustration of the symbolic regimes of legitimacy enjoyed, in Colombia currently, by Indianness in its relationship with ritual consumption. A few years ago, I spent considerable time and energy in studying the case of taita Orlando Gaitán and the effects of what I referred to as the

184  Alhena Caicedo Fernández deregulation of the interface between new and traditional uses (Caicedo Fernández, 2018). Gaitán, a new, self-proclaimed indigenous taita, was, for a number of years, the leader of a corporation that provided alternative health services, including allopathic medicine and traditional yagecero medicine, until 2012, when he was accused of sexual abuse by several of his followers. According to allegations, Gaitán took advantage of his patients, among other occasions, during the yage sessions and through alleged forms of healing. This case reveals how the work of some new taitas is supported by mechanisms of crossed legitimacy, between expert yagecero knowledge and the expert knowledge of other medical systems that underpin each other through the lack of regulation mechanisms that determine the adequate uses of each type of medicine or alternative therapy3 (Caicedo Fernández, 2018). The eclecticism, typical of the practice of new taitas, means that there must be permanent forms of self-regulation that are, however, not always fulfilled. The legal case of Gaitán has taken longer than usual and has shown the lack of the judges’ competence to understand concepts such as shamanism, the ritual use of yage, its hybridization in the urban sphere, and the current vindications of the ethnic identity of those who were previously considered mestizos. At the same time, it reveals that the common sense that stigmatizes yage as a drug is still standing. In Colombia, there is no legal knowledge or any legislation on such topics, and much less so, a tool that can help us to differentiate shamanism, religion, and medicine. Similarly, it shows how, despite the yagecero field becoming more visible and extended within the country and abroad, the curacas of the Amazon Piedmont—recognized, until quite recently, as the legitimate authority over yage—are, today, no longer considered so; nor do their descendants have the sufficient authority, beyond their territorial jurisdiction, to say who is a traditional yagecero doctor and who is not. Despite the fact that the judicial process has not yet reached a conclusion, the case demonstrates the State’s incapacity to determine whether Gaitán is an indigenous doctor or not and whether the way in which he uses yage is correct or not. This demonstrates the radical importance of the organizations of multiethnic indigenous authorities, such as UMIYAC, ASMIC (Asociación de Médicos Indígenas Cofánes), the highest authorities of the Cofan people (Mesa de Autoridades del Pueblo Cofán), and Indigenous Councils of other groups, constituted around the extended defense of yage and its uses, with respect to its commodification and third-party interests in profit. Another representative case of the current problem is that of Alberto José Varela, founder of the multinational emporium that comprises the companies Ayahuasca International, Ayahuasca Planet, Escuela Europea Ayahuasquera, and Inner Mastery S.L.U., dedicated to promoting therapeutic uses of yage, shamanic tourism, and facilitator training. In recent years, Varela extended his lucrative business around the world, legitimating the supposed endorsement of reputed Colombian yagecero indigenous authorities, and

Debates on the Legality and Legitimacy of Yage in Colombia  185 publishing an authorization allegedly signed by taita Querubín Queta, a renowned Cofan elder, in which, according to Varela, the taita confers him the authority to work with yage. In a communiqué released in May 2015, the Cofan authorities, and Querubín himself, denied having granted such an authorization. They denied having taught Varela or any of the members of his companies how to use yage, or having given him the consent to transport or administer it. The communiqué also included declarations by various international experts supporting the Cofan authorities (Jutte, 2016). In 2016, the Cofan released another communiqué warning of members of their own community who continued to take advantage of their ethnic condition and their kinship to the taitas—including one of taita Querubín Queta’s nephews—to distribute yage abroad, working in association with Varela, and ignoring the elders’ authority. The letter calls on the international community to be aware of the risk posed by the commercial use of ayahuasca, mentioning Varela and Gaitán as examples. It also confirmed the need to recognize the long and complex process involved in training the taitas. The paradox of this case is that, despite the international visibility of the case, the issue has not transcended legally within the country; there are taitas that continue to work with Varela and his companies continue to operate in Colombia. To sum up, under the current conditions of yage expansion, we can identify types of risks that surround the psychoactive plant and its uses. One of these is related to the loss of regulation mechanisms at different levels that determine appropriate uses that reduce the effects that may place people at risk and that penalize abuses. Another is related to the forms of misappropriation and unauthorized use that, on the one hand, ignore the mechanisms of regulation and authority in place until recently, and, on the other, uncover national legal limitations. We can add, here, another type of current risk: the acquisition of intellectual property rights by third parties on traditional knowledge and its associated plant resources.

The Physical and Cultural Protection of Yage US researcher Loren Miller’s attempt to patent yage in the 1980s was widely publicized around the world. Miller, the owner of a small pharmaceutical company in California, obtained the patent for yage from the US Patent and Trademark Office (Log No. 5751 of June 17, 1986), under the argument that it was a new variety that had not previously been described. It was not until 1995 that the Indigenous Peoples of the Amazon found out about this and—through the Coordinating Body for the Indigenous Peoples Organizations of the Amazon Basin (COICA), in partnership with the Amazon Alliance for Indigenous and Traditional Peoples of the Amazon Basin and lawyers of the Center for International Environmental Law (CIEL)— reported the case before the US Patent Office. The patent was revoked in 1999. Paradoxically, this did not happen because of the claims put forward

186  Alhena Caicedo Fernández by the Indians, but rather, the confirmation that the University of Michigan had, in fact, already registered the variety. Some time later, Miller appealed and the patent was renewed in April 2001, without accepting the arguments of the Indians (Zuluaga, 2016). Following the discussions that gave rise to a technical scrutiny of the process, in 2003, the patent was definitively revoked. The case became paradigmatic of the struggles of the Amazonian indigenous organizations against bioprospecting and biopiracy, and it has served to identify the risks pertaining to the legislation of US patents that could be implemented through Free Trade Agreements with South American countries (Díaz-León, 2006). In Colombia, the main regulatory developments for the protection of plant species associated with traditional knowledge has been supported by point “j” of Article 8 of the 1992 Convention on Biological Diversity, adopted through Law 165 of 1994. The Article stipulates the State’s obligation to protect the traditional knowledge pertinent to the conservation and sustainable use of biological diversity. This legal framework is supplemented by other binding agreements, such as Andean Decision 391 of the Andean Community of Nations on the protection of the biodiversity and recognition of the cultural rights of Indigenous, Afro-American, and local communities (ACN, 2017). This latter point is directly linked to the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage, and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, and in the Colombian legal framework with the General Culture Act (Law 397 of 1997), which recognizes the traditional knowledge of indigenous communities as intangible cultural heritage (ICH). Although yage has not been declared heritage in Colombia, ICH policy has played a decisive role in the protection of traditional knowledge. The purpose of processes of patrimonialization is for the State to protect relevant and endangered cultural manifestations. Accordingly, the procedure contemplates that it should be the bearers of the manifestation that propose its patrimonialization. Once the institutions in charge diagnose and evaluate, the State is obliged to build, together with the bearers, a safeguarding plan that guarantees its continuity and minimizes the risk of its disappearance. The patrimonialization policy has led to all kinds of polemic in Colombia, as it indirectly promotes the homogenization and standardization of cultural manifestations and, in many cases, has incentivized the economic value and commercial use of the very thing it is supposed to safeguard (Caicedo Fernández, 2014). However, it is an interesting and useful tool to shed light on the cultural elements and practices that, today, are at risk, and the responsibility of the State in such terms. Would its heritagization be a suitable alternative for the protection of yage in Colombia? To answer this question, we would have to consider that there first has to be an indigenous community or peoples that request its protection, and this has not yet happened. The community that manages

Debates on the Legality and Legitimacy of Yage in Colombia  187 the initiative would be the one to declare itself as the bearer. This, of course, is problematic, as what we are dealing with is a cultural manifestation that pertains to several communities and peoples that, in many cases, are not organizationally articulated. Even so, a viable option would be for patrimonialization to be requested by organizations that can legitimately represent the diversity of Indigenous Peoples who belong to the so-called “yage culture,” such as the UMIYAC. Nevertheless, this option would exclude the non-indigenous uses of yage, and, very likely, the new uses associated with urban contexts, from the heritagized recognition. Even so, an obvious advantage of such a declaration would be the possibility to change the recognition as intangible heritage to tangible heritage, and, thereby, protect the knowledge, forms of use, and the territory associated with yage. The development of the legislation has, so far, led to two great achievements in relation to recognition. In 2010, the traditional knowledge of the jaguar shamans of Yuruparí (Hee Yaia Keti Oka)—including their initiation rituals (ritual de Yuruparí)—of several East Tucano peoples of Vaupés were included in the List of the Intangible Heritage of Nations, and, in 2011, considered by United Nations Educational, Scientific and Cultural Organization (UNESCO) as Cultural Heritage of Humanity (UNESCO, 2011). Yage is one of the sacred plants included in these rituals and knowledge, which would indicate an indirect recognition as heritage. Similar to this case, there are, today, initiatives that seek to obtain heritage status not for yage, but rather, the traditional medical systems of Indigenous Peoples such as the Inga of Putumayo. None of these requests have, however, been formalized. The other case is the formation, in 2008, of Santuario de Flora Plantas Medicinales Orito Ingi Ande, through Resolution 994 of the Ministry of the Environment (República de Colombia, Ministerio de Ambiente, Vivienda y Desarrollo Territorial, 2008). An area of over 10,204 hectares in the Amazon Piedmont was declared a reservation area with the fundamental purpose of protecting the biodiversity associated with the knowledge of the ethnic groups that make up the “yage culture.” The explicit recognition of an inextricable relationship between the biological and cultural dimensions of yagecero peoples marks an important legal precedent for the formalization of initiatives aimed at protecting yage, considering that this is inherent to the recognition and protection of the territories belonging to indigenous communities. This point is fundamental if we consider the current problem relating to most yagecero communities, especially those that are settled in the lowlands, such as the Cofanes, Coreguajes, and Siona, declared in danger of extinction by the Colombian Constitutional Court in 2009.4 Although these groups have been historically threatened since the expansion of the rubber regime and the missions, beginning in the 1960s, the arrival of oil companies, followed by the extension of illicit coca crops, armed conflict, and fumigation using glyphosate as part of Plan Colombia, 5 decimated the population and provoked their

188  Alhena Caicedo Fernández forced displacement, confinement, and loss of territory (Los guardianes del yagé confinados por la violencia [The guardians of yagé confined by violence], 2018). In this context, yage has become a mechanism for internal organizational consolidation for the peoples of the lowlands of Putumayo-Caquetá, as well as a reference of the outward visibilization in its struggle to defend their lives and the territories that they have historically occupied. That said, although patrimonialization is useful in many ways, what is certain is that its main limitation is the national nature of its jurisdiction. The risks currently derived from, and the misappropriation of, traditional knowledge is associated with the regime of intellectual property rights regulated internationally by WIPO, in charge of establishing the legal frameworks for the ownership of patents, brands, and industrial designs of countries belonging to the UN. Surrounding intellectual property rights, and its particular and restrictive conception of property, several so-called Third World countries have given rise to important debates within the WIPO Intergovernmental Committee on Intellectual Property and Traditional Knowledge, Traditional Cultural Expressions, and Genetic Resources (WIPO, 2018). Despite the fact that various nations have developed their own legislation, for several years now, the committee has been negotiating the establishment of an international legal instrument. The position of the Colombian State, despite the conflicts of interest within the State institutions, has been one that relates to the idea of the collective property rights of State institutions, and to the idea of collective property rights as a necessary concept to qualify the existing legislation. Accordingly, the American Declaration on the Rights of Indigenous Peoples, recently approved by the Organization of American States (OAS), has made important progress in this respect by recognizing the rights of such peoples to collective intellectual property that comprises, among other things, traditional knowledge associated with genetic resources, ancestral designs and procedures, and cultural, artistic, spiritual, technological, and scientific manifestations of tangible and intangible heritage, as well as biodiversity-related developments (Art XXVIII) (OAS, 2016).

A Few Final Reflections In Colombia, yage is closely linked to the matrix of representations of Indianness pertaining to the historically constituted national configuration of diversity. The forms of legitimacy of its uses—known and new—have always depended on its symbolic association to this referent. With the introduction of multiculturalism as State policy in the 1990s, the weight of these representations achieved a certain level of institutionalization, leading to the fact that, currently, yage is tied to social representations of Indian diversity, and to the legislative framework that legitimizes cultural difference and that, somehow, also legalizes it.

Debates on the Legality and Legitimacy of Yage in Colombia  189 In recent decades, the urbanization and elitization of the practice has led to a more or less novel field of uses that currently seeks mechanisms of legitimation and legalization. Thus, the consolidation of the therapeutic nature of ritual consumption, its medicalization, and the positioning of traditional indigenous medicine, among the array of alternative health therapies available, complements its new facet as a spiritual practice of the urban public. In parallel, the commercialization of the practice has generated an economic alternative for certain sectors, indigenous or not, that take advantage of this condition to promote themselves as yagecero doctors in Colombia’s cities and abroad, making intensive use of the imaginaries of the Amazon Indians, and of the official mechanisms of recognition. International legislation on ayahuasca tends to be restrictive as part of the control of psychotropic substances, whereas the national arena hosts a diversity of frameworks that cover legality and legitimacy. At the national level, the deregulation of the traditional yagecero field is demonstrated by the erosion of regimes of legitimacy, new forms of cross-legitimacy, and the lack of effective mechanisms that guarantee the self-regulation of those who work with yage. Among other things, the cases of sexual abuse during yage sessions are currently a reiterated and complex problem, requiring comprehensive scale management, viable mechanisms of care and protection, and additional forms of healing. Another type of threat is the misappropriation, by third parties with lucrative ends, of usage rights over yage-associated knowledge and practices. If yage is to avoid succumbing to the effects of its commercialization, this is, to a great extent, dependent on the recognition of the traditional knowledge of the local Amazonian communities, including, in particular, the indigenous community. Accordingly, protection from attempts to appropriate intellectual property rights, as well as the control and regulation of the commercial use of such knowledge, is currently impossible without direct State intervention in articulation with international legislations. In the case of countries that constitute the Amazon Basin, these legislations must consider the different forms of traditional knowledge under their protection, including those that are not indigenous or of a religious or therapeutic nature that have been developed locally. In Colombia, to protect yage is equivalent to protecting Indigenous Peoples, their territories, and their traditional knowledge. This should not be construed as a disregard for the new uses and scenarios, but rather, considering the deep-rooted inequalities applying to Amazonian populations, a certain guarantee against the harmful effects of the new political economy that is touching yage, and the complex system of botanical and ecological knowledge of which it is part. Innovation in the globalized yagecero field has direct and indirect effects on these communities and, in particular, on indigenous people. The mechanisms of informed consent help to facilitate this and allow the public exploitation of such knowledge; recognizing this can help us rethink the forms of access to, and participation of the

190  Alhena Caicedo Fernández Amazonian communities in, the benefits derived from the innovations produced from the use of yage. Today, it is evident that broad legislation exists to protect yage knowledge as intangible heritage. However, regulations are not always going to be able to counteract the threats derived from the insertion of knowledge and cultural practices into market logics and from the global economy. The current situation deserves a reconsideration of the ways in which the legitimacy of the different uses is constituted, and the value of the preservation of their heterogeneity, their practices, and associated forms of knowledge. Accordingly, to defend yage requires the knowledge that it is not just about defending a set of plant species or a varied universe of cultural traditions or populational groups in danger of extinction. Following the meaning given to it by the indigenous and non-indigenous yagecero communities, yage is not a mere plant or mere intangible knowledge. It is, above all, a subject that is able to bring together different dimensions, a liana whose power to entangle binds spheres, apparently disconnected from a Western perspective, between the natural world and the ecology of human life, crossing planes that many consider sacred. Its ability to generate transgressive epistemological models is just beginning to be explored, but the alternatives given by populations that understand a lot about this continuous nature of yage as a liana-subject, are, today, at risk of extinction. This being the case, the recognition of yage as a necessary subject for the reproduction of Amazonian life goes far beyond a simple metaphor. This is why the initiatives of countries such as Bolivia and Ecuador are so significant. Both have constitutionally recognized Amazonian peoples and nature as legal subjects. Perhaps those of us, based within different fields and disciplines, whose work focuses on ayahuasca, should seek to demonstrate that yage is, of course, not only a subject of intellectual and cultural interest, but also a legal subject, deserving of rights and protection.

Notes 1 I want to thank David Curtidor and María José Almarales for their help in reviewing the current state of the legislation on traditional indigenous knowledge in Colombia. 2 The denomination taita is used regularly to refer to yagecero teachers. Of Quecha origin, the term also refers to the masculine authorities, fathers, and elders among various indigenous groups of southwest Colombia. 3 In January 2021, Orlando Gaitan was sentenced by a judge to 19 years in prison for sexual abuse. 4 The Colombian Constitutional Court, though Order 004, declared 34 of the country’s Indigenous Peoples under threat of extinction due to the armed conflict and other threats. This measure obliges the State to create safeguarding policies that guarantee the survival of these communities. 5 Plan Colombia is the bilateral agreement between the US and the Colombian government, signed in 1999, to end the armed conflict and destroy illicit drug crops. Between 2000 and 2007, Plan Colombia received an approximate sum of 4.9 billion dollars from the US government.

Debates on the Legality and Legitimacy of Yage in Colombia  191

References Andean Community of Nations. (2017). Decisiones Andinas en Propiedad Intelectual [Andean decisions on intellectual property]. Secretaría General de la Comunidad Andina. http://www.comunidadandina.org/StaticFiles/201761102019%20 en%20Propiedad%20Intelectual.pdf Ayahuasca Defense Fund. (2022). National Legal Status. International Center for Ethnobotanical Education Research and Service (ICEERS). https://www.iceers. org/ayahuasca-legal-status/ Caicedo Fernández, A. (2010). El uso ritual de yajé: patrimonializacióny consumo en debate [The ritual use of yaje: Patrimonialization and consumption in debate]. Revista Colombiana de Antropología, 46(1), 63–86. Caicedo Fernández, A. (2014) Tiempo de florecer. Medicalización del yajé y usos sociales del patrimonio [Time to bloom: Medicalization of yaje and social uses of heritage]. In M. Chaves, M. Montenegro, & M. Zambrano (Eds.), El valor del patrimonio. Mercado, políticas culturales y agenciamientos sociales [The value of heritage: Market, cultural policies, and social agencies] (pp. 519–547). Instituto Colombiano de Antropología e Historia. Caicedo Fernández, A. (2015). La alteridad radical que cura. Neochamanismos yajeceros in Colombia [The radical otherness that heals: Yajeceros neoshamanisms in Colombia]. Universidad de los Andes. Caicedo Fernández, A. (2018). Power and legitimacy in the reconfiguration of yagecero field in Colombia. In B. C. Labate & C. Cavnar (Eds.), The expanding world ayahuasca diaspora: Appropriation, integration and legislation (pp. ­199–216). Routledge. Díaz-León, G. L. (2006). Nuestro Yajé… ¿tu “Da Vine”? Elementos económicos, culturales y legales del debate alrededor de la Propiedad Intelectual sobre los Saberes Tradicionales [Our yajé… your “da vine”? Economic, cultural, and legal elements of the debate around intellectual property on traditional knowledge (Unpublished doctoral dissertation). Universidad Nacional de Colombia. https:// www.researchgate.net/publication/231222216_NUESTRO_YAJE _TU_DA_ VINEElementos_economicos_culturales_y_legales_del_debate_alrededor_de_ la_Propiedad_Intelectual_sobre_los_Saberes_Tradicionales Feeney, K., & Labate, B. C. (2012). Ayahuasca and the process of regulation in Brazil and internationally: Implications and challenges. International Journal of Drug Policy, 23(2), 154–161. https://doi.org/10.1016/j.drugpo.2011.06.006 Garzón, O. A. (2018). Medicina tradicional, alternativa y terapias no convencionales en el mercado terapéutico urbano [Traditional, alternative medicine and unconventional therapies in the urban therapeutic market] (Unpublished doctoral dissertation). Universidad Nacional de Colombia. Gearin, A. K., & Labate, B. C. (2018). La dieta: Ayahuasca and the Western reinvention on Indigenous Amazonian food shamanism. In B. C. Labate & C. Cavnar (Eds.), The expanding world ayahuasca diaspora: Appropriation, integration and legislation (pp. 177–198). Routledge. International Labor Organization (ILO). (1989). Indigenous and Tribal Peoples Convention, 1989 (Nº 169). https://www.ilo.org/dyn/normlex/fr/f?p= NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169 Jutte, M. (2016). Curaca Cofán en aprietos. Sobre la controversia entre los indígenas Cofán y Alberto Varela (Ayahuasca International) [Curaca Cofán in trouble: On

192  Alhena Caicedo Fernández the controversy between the Indigenous Cofán and Alberto Varela (Ayahuasca International)]. Neip. https://neip.info/novo/wp-content/uploads/2016/10/Jütte_ Indigenas_Cofan_Alberto_Varela_University_Marburg_20016.pdf Los guardianes del yagé confinados por la violencia [The guardians of yagé confined by violence]. (2018, May 5). Diario El Espectador. https://www. elespectador.com/noticias/judicial/los-guardianes-del-yage-­confinados-por-laviolencia-articulo-754137 Musalem, P. (2016). Xamanismo, memória e identidade: Transformações e continuidades nos processos políticos dos siona no Putumayo, Colômbia [Shamanism, memory, and identity: Transformations and continuities in the political processes of the Siona in Putumayo, Colombia] (Unpublished doctoral thesis). Universidade Federal de Santa Catarina. https://repositorio.ufsc.br/ handle/123456789/173029 Organization of American States (OAS). (2016, June 15). American declaration on the right of the Indigenous peoples AG/RES.2888 (XLVI-O/16). http://www.oas. org/en/sare/documents/DecAmIND.pdf República de Colombia, Ministerio de Ambiente, Vivienda y Desarrollo Territorial. (2008, June 16). Resolución 0994: Por medio de la cual se declara, reserva y alindera el santuario de Flora “Plantas medicinales Orito- Ingi Ande [By means of which the sanctuary of Flora “Medicinal Plants Orito-Ingi Ande” is declared, reserved, and bordered]. http://www.parquesnacionales.gov.co/portal/wpcontent/uploads/2013/12/ORITO.pdf Segato, R. (2004). La nación y sus otros. Raza, etnicidad y diversidad religiosa en tiempos de políticas de la identidad [The nation and its others: Race, ethnicity, and religious diversity in times of identity politics]. Prometeo. Suárez Álvarez, C. (2018). Ayahuasca entre dos mundos [Ayahuasca between two worlds]. Libros del Mono Blanco. Union of Indigenous Yagé Medics of the Colombian Amazon (UMIYAC). (2000). El Pensamiento de los mayores. Código de ética de la medicina indígena del Amazon piedmont colombiano [The thought of the elders: Code of ethics of the Indigenous medicine of the Colombian Amazon Piedmont]. http://www. bialabate.net/pdf/laws/el_pensamiento.pdf United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances’. (1988). https://www.unodc.org/pdf/convention_1988_en.pdf United Nations Educational, Scientific and Cultural Organization (UNESCO). (2011). Traditional knowledge of the jaguar shamans of Yuruparí. Intangible cultural heritage. https://ich.unesco.org/en/RL/traditional-knowledge-of-thejaguar-shamans-of-yurupari-00574?RL=00574 World Health Organization (WHO). (2013). Traditional medicine strategy 2014– 2023. https://www.who.int/publications/i/item/9789241506096 World Intellectual Property Organization (WIPO). (2018). Traditional knowledge. http://www.wipo.int/tk/en/tk/index.html Zuluaga, G. (2013). Una ética para la investigación médica con comunidades indígenas [An ethics for medical research with Indigenous communities]. In A. Vélez, A. Ruiz, & M. Torres (Eds.), Retos y dilemas de los comités de ética en investigación [Challenges and dilemmas of research ethics committees] (pp. 259–228). Editorial Universidad del Rosario.

11 Ayahuasca in Uruguay Legal Aspects and Public Debates on Drugs and Religion Juan Scuro, Ismael Apud and Sebastián Torterola Introduction As in other countries, ayahuasca reached Uruguay in the last decades through different religious and spiritual traditions related to transnational networks, and within an increasing globalized context. Although its arrival caused little public impact, there have been some discussions on ayahuasca’s legality, as well as debates on the use and effects of the brew on the media. This article describes and analyzes a series of ayahuasca-related controversies taken place in Uruguay, in the spheres of both the law and mass media. The first section, “A new spiritual landscape,” describes the Uruguayan context; namely, the secular nature of the Uruguayan modern State and the historical period of the 1980s (the end of dictatorship and beginning of globalization), when different religious-spiritual movements appear in the country. The second section, “Ayahuasca in Uruguay,” describes the arrival of groups and traditions that use ayahuasca, and refers to national drug regulations and ayahuasca’s legal situation. The section “The Case of Santo Daime Confiscation” targets a specific problem related to the confiscation of several liters of ayahuasca at the Brazilian border, which adds Uruguay to a list of international cases of legal actions having been brought around ayahuasca confiscation. The next section, “Ayahuasca Controversies in the Mass Media,” presents characterizations disseminated by local TV shows and newspapers against ayahuasca groups, as being “dangerous religious cults” that use “drugs” to recruit followers. “The case of Ayahuasca International” explains how the “first ayahuasca corporation” arrived in the country, and analyzes legal actions that were brought against it. The “Discussion” section explores, on the one hand, the relations between the State and the ayahuasca groups in terms of drug policies and religious matters; and, on the other hand, the treatment given to ayahuasca uses in the mass media, combining cultural imaginaries of “drugs” and “cults.” To conclude, the article proposes that, even though the current Uruguayan context is favorable for the ayahuasca groups to conduct their practices, the relevance of these issues and their increasing public visibility require more

DOI: 10.4324/9780429001161-12

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194  Juan Scuro et al. discussions for future planning of explicit institutional conditions that can guarantee the free and safe development of religious, therapeutic, and scientific uses of ayahuasca.

A New Spiritual Landscape There is a wide academic consensus around the fact that Uruguay is defined by a sort of radical laicism, which is a result of a strong secularization process that is understood, at least from a historical perspective, as having a strong Jacobin influence. For the historical period of the modern State’s foundation (the last quarter of the nineteenth century and first two decades of the twentieth), Uruguayan historian Gerardo Caetano refers to a process of “naturalization of a radical vision of laicism” (2013, p. 118). He says “radical” for two main reasons: first, due to an “institutional marginalization of religious issues and their gradual rooting in the private sphere” (p. 118); and second, for the adoption of “official attitudes that were strongly critical of hegemonic institutional religion (in this case, the Catholic Church), tied to ‘a transference of sacrality from religion to politics,’ which led to the formation of a sort of ‘civil religion’” (Caetano, 2013, p. 118). These aspects, the historian states, became central for the Uruguayan secularization process. Caetano also uses the typology developed by Micheline Milot on laicism (separatist, anti-clerical, authoritarian, civil faith-oriented, and recognition-oriented) to argue that “the classical laicism model in the case of the Uruguayan history would be a combination of the prototypes ‘separatist,’ ‘anticlerical,’ and ‘civic faith-oriented,’” (p. 120) (Translations by the authors). Meanwhile, Uruguayan sociologist Néstor da Costa (2009) organizes the postures on laicism in Uruguay in three categories: an intransigent position, a plural position, and a third position of denial. He also affirms that, in Uruguay, “the shift of radical religious matters to the private sphere created a sort of civil religion of the State” (Da Costa, 2009, p. 152). Finally, it could also be said that the Uruguayan modern state was formed based on a “republican” secularism type, following the typology proposed by Maclure and Taylor (2011), in which they formulate two ideal secularism models or types: “republican” and “liberal-pluralist.” In fact, the “republican” type would also include a “fetishism for the means”; that is, a certain confusion between secularism’s ends (“respect for the equal moral value of citizens and the protection of freedom of conscience”) and its means (“the separation of church and state and the state’s religious neutrality”) (Maclure & Taylor, 2011, p. 44). As a consequence of such fetishism, along the construction of the Uruguayan modern state, religions were segregated from public spaces. Symbols, rituals, and practices were accepted only in private places, such as in churches and in the homes of devotees. The current situation is more heterogeneous and the display of religious symbols and practices in public spaces has become increasingly tolerated.

Ayahuasca in Uruguay  195 With the end of the dictatorship (1973–1985) and the return of democracy in the 1980s, Uruguayan culture started to re-signify its own identity. Religions that earlier were considered as superstitions now offered symbols and icons to a population in need of new cultural ways of “being Uruguayan.” Good examples of this are the papal cross built in one of the most important avenues of Montevideo, or the statue of Iemanjá (the sea goddess in Afro-Brazilian religions) erected in one of its most popular beaches. As pointed out by Casanova (2006), this process of de-privatization of religions and the subsequent return to the public arena is a regional and global trend. As analyzed both by Caetano (2013) and Da Costa (2008), Uruguay is not an exception; therefore, this new context leads to a revision of the national thesis of radical secularization. At the same time, new religious movements arrive in the country under the impulse of globalization and transnational markets of spirituality. The so-called New Age Networks (Hanegraaff, 1996), sometimes also referred as psycho-mystic spiritualities (Champion, 1995), become popular in this period, mainly among the middle and upper classes interested in new spiritual and existential alternatives. As in other countries, there was a growing interest in self-help literature, holistic therapies, Oriental spiritual techniques (e.g., yoga, meditation), and neo-shamanic healing and self-knowledge practices (Menéndez, 1997; Apud, 2013a; Scuro, 2016). It is in this new context that different ayahuasca centers and institutions appear in the country.

Ayahuasca in Uruguay The first ayahuasca groups appeared in Uruguay in the 1990s, a decade when the brew became internationally popular. The first group, based on the Brazilian religion, Santo Daime, started conducting ceremonies in Uruguay in 1991, and their members then founded their own church, called Céu de Luz (Sky of Light), in 1996. In 2002, the church was recognized as a non-governmental organization by the Uruguayan Ministry of Education and Culture, and finally, in 2006, it was officially recognized by the official Brazilian Santo Daime, ICEFLU (then, CEFLURIS) (Sánchez Petrone, 2006; Scuro, 2012a; Scuro, 2012b). In the same decade, different neo-shamanic ayahuasca centers appeared. For instance, the Uruguayan branch of the neo-shamanic organization Camino Rojo (Red Path) was created in 1994, with the arrival of Aurelio Díaz Tekpankalli, the authority and leader of the international organization Fuego Sagrado de Itzachilatlan (Sacred Fire of Itzachilatlan). Later on, there was a rupture between the Uruguayan center and Tekpankalli’s organization, after which the Uruguayan Camino Rojo continued to work autonomously (Apud, 2013b; Scuro, 2016; Scuro et al., 2018). Some of their members are gestalt psychologists who combine a psycho-therapeutic

196  Juan Scuro et al. approach with a neo-indigenous worldview. Another example is Ayariri, a holistic center of alternative therapies working with varied healing practices such as yoga, holotropic breath work, Chinese medicine, and, since the late 1990s, ayahuasca sessions in a Peruvian-style shamanic setting (Apud, 2013a, 2015). Since then, neo-shamanic rituals, Indigenous spiritual paths, and psychedelic therapeutic uses have become increasingly popular among middle and upper classes, and other ayahuasca groups have emerged, such as Sol de la Nueva Aurora (Sun of the New Dawn), En Camino (In the Path), and Ayahuasca International, among others. Lastly, psychologists, physicians, and other healthcare professionals often use the brew and other sacred plants as additional resources in their treatments. As it happened in other countries (see Labate & Jungaberle, 2011), the arrival of ayahuasca resulted in different legal, moral, and ethical debates in the country. Uruguay is a signatory of the United Nations 1971 Convention on Psychotropic Substances. In order to comply with its obligations, the country passed the law n. 14.294 of 1974, which was, in turn, modified by law n. 17.016 of 1998, currently in force. Whereas the law does not penalize the consumption and possession of drugs for personal use, it prohibits drug trafficking, sales, and distribution. However, the maximum quantity of a controlled substance allowed for personal use is not clearly defined, and it depends on the interpretation of the judges. Furthermore, over the past few years, new policies were developed that introduced specific regulations of tobacco, alcohol, and cannabis. For instance, in 2006, smoking became prohibited in public spaces, and other severe measures were implemented against tobacco. As a consequence, Phillip Morris, the multinational tobacco company, brought legal actions against the Uruguayan state, but the resolution by the UN International Court favored Uruguay. Finally, a milestone Uruguayan drug rule that regulates recreational, medical, and industrial uses of cannabis through state institutions, law n. 19.172, was passed in 2013. However, Uruguay lacks specific regulations around ayahuasca. The 1971 Convention typifies N,N-dimethyltryptamine (DMT) as a Schedule I controlled substance, but that does not apply to ayahuasca as a plant concoction (International Narcotics Control Board [INCB], 2013). Thus, each country has its own specific legislation on the subject, with cases of express prohibition (as in France), authorization of religious use (Brazil, Canada, the US), and recognition as cultural patrimony (Peru), among others. In the case of Uruguay, the legal situation of the brew remains unresolved, and ayahuasca centers and institutions conduct their rituals within an informal network that does not seem to be of major concern for the authorities (Scuro & Apud, 2015). The particular case of ayahuasca, where a specific chemical substance (N,N-dimethyltryptamine [DMT]) is prohibited, while a brew containing DMT is not, shows to what extent the international regulations on drugs can be ambiguous and contradictory.

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The Case of Santo Daime Confiscation On November 14, 2009, a Brazilian citizen traveling from the city of Porto Alegre, Brazil, entered Uruguay through the city of Chuy, carrying 40 liters of ayahuasca. The person was able to continue his way to Montevideo, but the ayahuasca was held at the border. A preliminary report by the Customs Office, issued a few days after the confiscation, affirms that the liquid “contains hallucinogenic substances,” and that more studies were expected to be performed to evaluate it. On December 22, the Civil Association, Centro de Iluminación Cristiana José Gonçalves (Center for Christian Illumination José Gonçalves, the corporate name under which the Daime community is registered in the local Ministry of Education and Culture), requested the brew to be returned under several articles of Uruguay’s Constitution, especially Art. n.5, which guarantees freedom of religion within the Uruguayan territory. Meanwhile, the final report of the Instituto Técnico Forense (Forensic Technical Institute) found DMT, harmine, and harmaline in the confiscated liquid. Based on these elements and under law n. 14.294, the state attorney claimed that introducing the substance in the country was illegal. Although the report acknowledges the freedom of religion guaranteed by Art. n. 5 of the Constitution, it argues that the methods used should be legal and shouldn’t threaten the public health of the participants. Afterwards, the case was sent to the Ministry of Public Health, where another report was issued by the Sector of Psychopharmaceuticals, Narcotics, Precursors, and Chemical Products. A part of the Department of Medications of Uruguay’s Ministry of Public Health, this sector consulted the Agência Nacional de Vigilância Sanitária (National Agency of Sanitary Surveillance [ANVISA]), a Brazilian autonomous regulation entity, regarding ayahuasca’s legality and the possibilities for its importation. ANVISA was requested to provide the Brazilian regulation under which ayahuasca exportation would be explicitly prohibited. ANVISA’s answer to the Uruguayan request affirms that such regulation is not very well defined, and then referred to two rules of different orders that should be considered to reach a conclusion: (a) resolution n.5 of 2004 of the Conselho Nacional de Políticas Sobre Drogas (National Council of Drug-Related Policies [CONAD]); and (b) article n. 32 of the UN Convention on Psychotropic Substances of 1971. This article establishes the conditions in which states can make exceptions to control in the cases of plants that, while containing the active principles included in the lists, naturally grow within the territory and are traditionally used by specific groups. The same article concludes that the lack of control should not be applied to international commerce dispositions. In any case, Brazil didn’t request that ayahuasca be considered as an exception under such article (Labate, 2011). Based on this documentation, ANVISA understood that it was not possible to export ayahuasca. And, based on ANVISA’s answer, the Uruguayan Ministry of

198  Juan Scuro et al. Health decided that it was not possible to import ayahuasca and archived the case in 2012. In the context of international ayahuasca expansion—and legitimization achieved by churches in some countries where ayahuasca importation and religious use is allowed—the new aspect introduced by the Uruguayan case is the arguments used by the Uruguayan Ministry of Public Health. Instead of referring to a possible risk for public health, as mentioned by the state attorney, the Ministry based its decision on the fact that the Brazilian legislation does not allow ayahuasca exportation. However, it should be remembered that, in countries like the US, legal ayahuasca importation from Brazil has been expressly authorized for religious use, as shown by the União do Vegetal (UDV)-Drug Enforcement Agency (DEA) agreement (Labate, 2012). Thus, there are evident contradictions in the resolutions respectively adopted in the cases of the US and Uruguay. It could be said that, in the US and Canada, the interested parties (institutions and individuals) were more proactive; mobilization led them to bring legal actions that succeeded in supporting their interests. As a result, ayahuasca importation from Brazil under specific conditions was approved by court resolution, which could also be a possibility in the Uruguayan case. The lack of mobilization of the ayahuasca groups in Uruguay may have been the cause of the Ministry’s final decision of prohibition, even considering the evident legal contradictions and international precedents that could have been explored by the interested parties.

Ayahuasca Controversies in the Mass Media In the last decade, ayahuasca religious and spiritual groups were the source of debates in the media that combined two problematic semantic fields: “drugs” and “dangerous religious cults” (Scuro et al., 2013). One of the most relevant public controversies took place after an article was published in El País, the country’s most popular newspaper, on September 16, 2006. The journalist, César Bianchi, narrated his personal experience with ayahuasca in the Santo Daime church in Montevideo. He described a bad trip in which he saw “the Devil” and felt he wanted to commit suicide. In 2009, Bianchi repeated his story on broadcast network Channel 10. The show also featured Alejandro Corchs, a member of Camino Rojo, who lost his parents through enforced disappearance during the dictatorship. Corchs is known for his many books on the subject that combine his personal story with spiritual reflections and existential poetry. In the TV show, he talked about his adolescence and how he began a spiritual quest that led him to know ayahuasca, finding love and forgiveness in his particular process of healing. These two opposing experiences related to ayahuasca were presented in a dramatic style, allowing the viewers to reach their own conclusions.

Ayahuasca in Uruguay  199 Years later, on May 30, 2012, a new controversy came to light on TV again. Once again, César Bianchi told his experience with Santo Daime. Then, TV host Ignacio Álvarez showed a video of his own experience with ayahuasca, which had occurred years before, in the Colombian Putumayo. The video edition included dramatic music and confusing images that created an atmosphere of danger, mystery, terror, and chaos. Afterwards, the show presented the testimony of the father of a former member of the Uruguayan Santo Daime church who committed suicide in 2010. Although the circumstances of this suicide are still not clear, the father stated that ayahuasca was the cause of his son’s death. “The authorities should do something to ban such a dangerous substance,” he claimed. An alleged “best friend” of the victim (the camera preserved his identity by only showing his back) also appeared on-screen explaining how ayahuasca was used within the church. He stated that the Santo Daime members attributed magical qualities to the brew and that some of them also grew and smoke marijuana. At the end of the show, psychologist Álvaro Farías, director of the Servicio de Estudio y Asesoramiento en Sectas del Uruguay (Uruguayan Service of Research and Consulting on Cults) and member of the Red Iberoamericana de Estudios de las Sectas (Ibero-American Network for Cult Research), analyzed the case of Santo Daime using all the clichés related to the anti-cult perspectives (e.g., brainwashing) and labeled ayahuasca as a dangerous substance that produces a “toxic psychosis.” Finally, he gave advice to parents on how to identify whether their children are in a sect and what should be done in that case. The following day brought more controversy: Weekly newspaper Búsqueda published a letter by the father of the youth who committed suicide, under the title “Killer Drug.” First, the father alerts the population about the activities of Santo Daime, a “cult” that uses a “killer and mystical drug.” The letter affirms how the ceremonies take place in an uncontrolled context, including vomiting, convulsions, hysterical dances, and total madness, since it’s a drug that makes them lose their identity, and carries them to a realm of terror and panic that, in many cases, incites them to commit suicide. Finally, he says that the government did not respond to his accusations. A week later, an anonymous answer to the father’s letter was published in the same newspaper. The respondent identifies themselves as a former participant in Santo Daime ceremonies. According to the testimony, this person never witnessed the events described by the father’s victim. On the contrary, they had “good teachings from the experiences.” Finally, the person states: “Your denunciation expresses rage against this person, and I don’t think he is responsible for the lives that are lost. I think that the problems in a young boy’s life probably begin at home with his family.”

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The Case of Ayahuasca International Recently, ayahuasca-related controversies returned to the public debate after the arrival of Ayahuasca International. Inner Mastery/Ayahuasca International is an organization founded by Argentine entrepreneur Alberto Varela in the beginning of 2010s in Spain. As he states in his website, he started drinking ayahuasca during the 2000s, in his travels to Colombia. There, he met different shamans, from whom he learned the different spiritual and native aspects of ayahuasca as a spiritual medicine. In his own words, he made over 40 trips to Colombia in six years and worked with over 20 shamans from Kamsá, Cofan, and Siona ethnic groups. After some time living with the Amazonian natives, he returned to Spain and created his first ayahuasca startup, Espacio Abierto para Disfrutarse (Open space to enjoy yourself), through which he offered his own ceremonies based on what he had learned in Colombia. For instance, one of the company’s ads read: Do you want to see the way out from your conflicts? We connect with the healing source of the shaman we have inside, which has all the solutions and answers. You will see the origin; you will be yourself again. In 2008, Alberto Varela was arrested in Spain for a crime “against public health” derived from ayahuasca confiscation. He was in prison for 14 months, an experience he considers as a spiritual awakening, a prelude to his ayahuasca world expansion. After leaving jail, and together with other spiritual seekers, he resumed his ceremonies, now strongly investing in digital marketing and social media to promote ayahuasca-related activities. The initiative began to spread to different countries. Nowadays, Ayahuasca International has different retreat “epicenters” in glamorous locations of Marbella, Eindhoven, Tepoztlán, Barcelona, Madrid, Turin, Rome, Berlin, and Lieira, among others. In “exclusive” retreats, it offers a wide array of activities, such as workshops and ceremonies including sacred plants (ayahuasca, yopo, iboga, rapé) and medicines of animal origin (Bufo alvarius and kambó), individual and group psychotherapy, and sweat lodges, as well as trips to the Colombian rainforest for on-site experiences. The prices range from 40 to 150 Euros for specific one-day activities, while four-night retreats for “complete spiritual formation” cost from 400 to 600 Euros. Varela also founded a “European Ayahuasca School” that trains the company’s “facilitators,” who, after a few weeks of study, are ready to conduct ayahuasca ceremonies. This is one of the company’s priorities since, in Varela’s words: “We have received invitations from South Africa, North Africa, Japan, Korea, China, Australia, New Zealand… But I can’t go because I don’t have people. That is why our school is training facilitators at full steam” (Alberto Varela, personal communication, May 2018).

Ayahuasca in Uruguay  201 According to Varela, his school has a team of professionals who teach a combination of esoteric, spiritual and scientific subjects, such as “psychotherapeutic integration, transcendental healing, use of therapeutic plants, musicotherapy, and Ho’oponopono,” among others. Even though he has no specific training in the area, Varela is also proud of having created his own therapeutic method, called “no-therapy,” which, despite being “very difficult to explain,” it is based on “confrontation” and on the idea that “everything the self experiences and states about itself is a lie.” In 2017, Varela chose Uruguay to further expand his international footprint. It was announced that the company’s headquarters would be located in the city of Colonia, a two-hour bus ride from the Uruguayan capital, Montevideo, and one-hour boat ride from the Argentine capital, Buenos Aires. Shortly after that, El País published an article entitled Lanzan cruzada contra la ayahuasca (Crusade Against Ayahuasca is Launched). The text included anonymous letters by a woman that complained against Ayahuasca International, alerting to the presence in Uruguay of a “cult that is active in 100 countries and its director, Alberto Varela, has been convicted in Spain because of this…. Followers’ lives are at risk.” Months after the company started operating in the country, a judicial process was opened against it, although finally the accusations were dismissed and the case was archived based on a report made by Uruguay’s Secretaría Nacional de Drogas (National Drug Office), which pointed out that the country did not have specific regulation on ayahuasca. As Varela explains, “I knew I was not doing anything illegal. We had to face a process, but after three months, the case was closed due to lack of evidence.” Varela continued to conduct monthly ceremonies in Uruguay and the company is now trying to recruit more participants through promotional events. The relevance of Alberto Varela to the discussion of ayahuasca’s legality lays in its peculiar discourse and commercial implications. While most of the ayahuasca institutions or centers have nonprofit approaches based on religious, spiritual, or psychological parameters, Varela is maybe the first “ayahuasca entrepreneur,” since he introduces himself as a “businessman” and his organization as an “ayahuasca multinational corporation.” Thus, he has followed an openly capitalistic path of achieving legal legitimacy: Instead of claiming the cultural acknowledgement of the plant by the authorities (as in Peru), or defending the freedom of religion (as in Brazil), he chooses direct confrontation, assuming that “my people are prepared to go to jail,” since the company “faces claims all over the world, in India, Belgium, Germany, Spain, and Argentina.” Varela takes advantage of the lack of regulation of ayahuasca in many countries by confronting the authorities, who, in his words, “don’t know the laws of their own countries.” Most of the cases faced by Ayahuasca International are closed due to lack of evidence, as it happened with his release in Spain. However, for countries that have a specific prohibition of ayahuasca, the company’s strategy has been to give promotional conferences

202  Juan Scuro et al. encouraging people to go to its “epicenters,” available in other parts of the world, where the brew is not illegal: Uruguay for Argentines; Ireland for the English; Switzerland, Italy, or Spain for the French; Mexico for the Americans, and so on.

Discussion As was previously noted, the modernization of the Uruguayan state was a strongly secular process, in which religious elements were confined to private spaces and politics and state issues became sacralized. At the same time, whereas the sanitary policies of the twentieth century could be described as “hygienist,” there was a certain tolerance and liberality toward the citizens’ private practices, as long as they didn’t threaten law and order or negatively impact public health. But, during the 1980s, there were changes in the relationship between the state and religions; namely, a more open attitude toward religions in public spaces, such as the presence of some religious symbols in different parts of the country. With regard to drugs, after a series of left-wing governments took office in the beginning of the twenty-first century, the country made distance from the prohibitionist model and increased the regulatory role of the state over the consumption of substances like alcohol, tobacco, and cannabis. Furthermore, a harm reduction paradigm was adopted. Thus, two different policy strategies are developed: for drugs, the intervention and regulations of both collective and individual practices; for religions, the defense of laicism, with the state acting as a custodian, and the defense of neutrality for all religious issues: two social spheres with different forms of political intervention. In the case of drugs, there is a construction of diverse dispositifs and regulations; in the case of religion, no new institutions, dispositifs, or normative mechanisms are created. This affects the way in which religious issues are regulated. In fact, Uruguay does not have a state entity for religious issues and there is no specific procedure for the registration of religious institutions. The main legal tool related to religious institutions is article n.5 of the Constitution of the Republic, which establishes the separation between church and state, and guarantees freedom of religion. The ayahuasca religious practices intersect these two sociopolitical spaces. The main approach to drugs continues to be a medical vision of the impact of their consumption on the population’s health. Thus, other drug aspects, such as their religious use, are not taken into account. Meanwhile, countries like Brazil do have specific regulations targeting the religious use of substances like ayahuasca (CONAD, 2010), a legal tool comparable to the resolution adopted in the US on the religious use of peyote and, more recently, of ayahuasca. Specifically, regarding the process of legitimation and legality achieved in different countries by the Brazilian ayahuasca religions, the case of Santo

Ayahuasca in Uruguay  203 Daime in Uruguay seems to recreate the situation in countries like the US and Canada. The only consistent argument to archive the case in Uruguay refers to the impossibility of ayahuasca importation from Brazil. In spite of such argument, both in the US and in Canada, ayahuasca religious institutions have legal permission to import the brew from Brazil. Literature shows that, in both cases, the interested parties have strongly mobilized to achieve the legitimation of their practices. In several countries, the mobilization of the interested parties has shown to be crucial to advance in processes of legitimation and legality of ayahuasca use. The regulation of religious ayahuasca use in Brazil, the cultural patrimonialization of ayahuasca in Peru, and the Unión de Médicos Indígenas Yageceros de la Amazonía Colombiana (Association of indigenous ayahuasca doctors from the Colombian Amazon [UMIYAC]) are good examples of this. As a consequence of the people’s mobilization, ayahuasca is a relevant topic in these countries’ political agenda. In the US and the Netherlands, the paths for legitimation of ayahuasca use are paved by the legal actions brought by specific religious groups that basically achieve favorable results based on the liberal spirit of the freedom of religion acts. Hence, there have been two ways for ayahuasca to produce political effects in different contexts. One is adopted by those countries where the plant makes part of the traditions and habits of particular population sectors. The other is related to legal actions brought by specific groups that stand up for their right to use ayahuasca in rituals. In these cases, the rule of law legitimates a strictly religious use of ayahuasca. In the meantime, for Uruguayans, ayahuasca is an exotic element that introduces a new intersection between the fields of drugs and religion. Unlike the above-mentioned countries, the plants used in the concoction don’t naturally grow in Uruguay, there is no indigenous population claiming a traditional use of ayahuasca, nor a relevant amount of religious ayahuasca institutions organized to legitimate their sacrament. On the contrary, the dominating Uruguayan secular imaginary makes it more difficult for a religious institution to attain public legitimacy, particularly if it is Christian and comes from Brazil. A good example of this is the treatment of ayahuasca uses given by the mass media, which have reproduced cultural imaginaries related to the notions of “cults” and “drugs.” Despite the controversies analyzed, the topic did not generate many repercussions nationwide. The state did not take relevant political or legal actions; probably, because it did not seem like a potential problem for public health, unlike tobacco, alcohol, and crack. In general terms, news on ayahuasca had no more impact than any other sensationalist news. Far from contributing to the restriction or diminishment of these practices, it is possible to say that, in Uruguay, the number of ayahuasca groups and users only keeps growing.

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Conclusions The Uruguayan scenario portends a progressive increase of ayahuasca uses. The lack of state intervention seems to leave an open field for this process to unfold. The positive effects of this attitude are that it allows participants to freely explore diverse religious and existential possibilities based on a posture of respect and religious freedom. Nevertheless, the negative aspect is that such lack of intervention leads to neglect. Hence, these practices fall into a legitimacy and regulation void that is potentially risky. As a result, future possibilities for ayahuasca other than religious use are not taken into account. For instance, does Uruguay have an agenda of scientific research around ayahuasca? Which therapeutic uses could be explored? Uruguay’s strong democratic tradition, as well as national projects of drug regulation, such as the cannabis act, has only been possible as a result of the mobilization of a proactive civil society. If ayahuasca importation for religious ends is authorized in other countries, there is no reason for Uruguay to be an exception. However, it is up to the interested parties to find the right legal mechanisms, probably related to the notions of religious freedom, democratic spirit, and the legalization of drugs. Compared to cases frequently studied regarding the transnationalization of ayahuasca, namely, the Brazilian religions, the Uruguayan situation is somewhat original in terms of state legitimacy of ayahuasca practices. The defense and the arguments in the cases of European and North American countries are mostly based on religious freedom. The difficulties of ayahuasca production and supply are obvious factors that lead the discussion in those countries to focus on the legalization of its importation. Even though the plants used to concoct ayahuasca don’t naturally grow in Uruguay, it is a Latin American country with a prolific Brazilian frontier; in general terms, it is easy and cheap to acquire Brazilian ayahuasca that can be transported through this land border. Clearly, this is not a possibility in the European and North American countries. On the other hand, the fact of being a Latin American country doesn’t mean that Uruguay is acquainted with ayahuasca use, as in the case of the previously mentioned Latin American countries that have Amazonian regions within their territories. The Uruguayan authorities are completely aware of who deals with ayahuasca and how they work with it. Nevertheless, not all of Uruguay’s ayahuasca users would choose to institutionalize their groups by regulating them through state intervention. This seems reasonable, both due to the permeable nature of the Brazil-Uruguay frontier and the amicable relationship established between such groups and local authorities. The legitimacy obtained by religious institutions in Brazil could also be an option for Uruguay. In the Brazilian case, the role of ayahuasca groups was fundamental. Another option would be explicit prohibition, but this seems unlikely considering Uruguay’s democratic tradition and the recent drug-related regulations being implemented. In fact, in the Uruguayan

Ayahuasca in Uruguay  205 scenario, neither the state nor the ayahuasca groups have proposed formal alternatives to regulate their practices. To date, it seems that the most convenient option for ayahuasca groups is to remain indifferent with regard to state institutionalization. However, it should be noted that the use of substances such as ayahuasca and its different potentialities and forms of use is increasingly in the loop of state institutions. What new processes might take place in the coming years?

References Apud, I. (2013a). Ceremonias de Ayahuasca: entre un centro holístico uruguayo y el curanderismo amazónico peruano [Ayahuasca ceremonies: Between a Uruguayan holistic center and Peruvian Amazonian curanderismo]. Universidad Nacional de Lanús. neip.info/novo/wp-content/uploads/2015/04/Apud_ Ayahuasca_Uruguay1.pdf Apud, I. (2013b). El indio fantasmal es reclutado en la ciudad. Neochamanismo, sus orígenes y su llegada a Uruguay [The ghostly Indian is recruited in the city: Neoshamanism, its origins and its arrival in Uruguay]. Cuadernos de Antropología Social, 38, 57–83. Apud, I. (2015). Ayahuasca from Peru to Uruguay: Ritual design and redesign through a distributed cognition approach. Anthropology of Consciousness, 26(1), 1–27. https://doi.org/10.1111/anoc.12023 Caetano, G. (2013). Laicidad, ciudadanía y política en el Uruguay contemporáneo: matrices y revisiones de una cultura laicista [Secularism, citizenship and politics in contemporary Uruguay: Origins and revisions of a secular culture]. Cultura y Religión, 7(1), 116–139. Casanova, J. (2006). Rethinking secularization: A global comparative perspective. The Hedgehog Review, 8(1–2), 7–22. Champion, F. (1995). Persona religiosa fluctuante, eclecticismo y sincretismos [Fluctuating religious person, eclecticism, and syncretism]. In J. Delumenau (Ed.), El Hecho Religioso: Enciclopedia de las grandes religions [The religious fact: Encyclopedia of the great religions]. Alianza Editorial. Conselho Nacional de Políticas Sobre Drogas (CONAD). (2010). Resolução Número 1. Diário Oficial da União, N. 17 [Resolution Number 1. Official Gazette of the Union, No. 17]. http://www.mpgo.mp.br/portal/arq uivos/2013/07/30/11_ 33_ 03_744_ resolucao_ n _1_ _de _ 25_de _janeiro_ de_2012___conad.pdf Da Costa, N. (2008). Sobre la teoría de la secularización [On the theory of secularization]. Cuadernos del CLAEH, 96–97(2), 209–220. Da Costa, N. (2009). La laicidad uruguaya [Uruguayan secularism]. Archives de sciences sociales des religions, 146(2), 137–156. Hanegraaff, W. J. (1996). New Age religion and Western culture: Esotericism in the mirror of secular thought. Brill. International Narcotics Control Board (INCB). (2013). Report 2013. United Nations. https://www.incb.org /documents/ Publications/AnnualReports/AR 2013/ English/AR_2013_E.pdf Labate, B. C. (2011). Comments on Brazil’s 2010 resolution regulating ayahuasca use. Curare, 34(4), 298–304.

206  Juan Scuro et al. Labate, B. C. (2012). Paradoxes of ayahuasca expansion: The UDV-DEA agreement and the limits of freedom of religion. Drugs: Education, Prevention and Policy, 19(1), 19–26. Labate, B. C., & Jungaberle, H. (2011). The internationalization of ayahuasca. Lit-Verlag. Maclure, J., & Taylor, C. (2011). Laicidad y libertad de conciencia [Secularism and freedom of conscience]. Alianza. Menéndez, G. (1997). Crisis del Uruguay laico-racionalista: nuevas religiones y cultura holística [Crisis of the secular-rationalist Uruguay: New religions and holistic culture]. Cuadernos del Claeh, 22(78–79). Sánchez Petrone, V. (2006). Colonos del Astral. La Iglesia del Santo Daime CEFLURIS en el Uruguay [Colonists of the astral: The Santo Daime CEFLURIS church in Uruguay]. Universidad de la Republica. Scuro, J. (2012a). Etnografando, escribiendo e imaginando: notas sobre el Santo Daime en el Uruguay [Ethnography, writings and imaginary: Notes on the Santo Daime in Uruguay]. Anuario Antropología Social y Cultural En Uruguay, 10, 115–131. Scuro, J. (2012b). No Uruguai tambem há Santo Daime. Etnografia de um processo de transnacionalizacao religiosa [Uruguay also has Santo Daime: Ethnography of a process of religious transnationalization]. Universidade Federal do Rio Grande do Sul. Scuro, J. (2016). Neochamanismo en América Latina. Una cartografía desde el Uruguay. [Neoshamanism in Latin America: A cartography from Uruguay]. Universidade Federal do Rio Grande do Sul. Scuro, J., & Apud, I. (2015). Aportes para un debate en torno a la regulación de la ayahuasca en el Uruguay [Contributions for a debate on ayahuasca regulation in Uruguay]. Anuario Antropología Social y Cultural en Uruguay, 13, 35–50. Scuro, J., Giucci, G., & Torterola, S. (2018). Camino Rojo from Mexico to Uruguay: Spiritual leaderships, trajectories and memory. International Journal of Latin American Religions, 2(2), 248–271. https://doi.org/https://doi.org/10.1007/ s41603-018-0055-4 Scuro, J., Sánchez Petrone, V., & Apud, I. (2013). Las tradiciones de la ayahuasca: su eco mediático y social en el Uruguay [Ayahuasca traditions: Media and social echoes in Uruguay]. Anuario de Antropología Social y Cultural En Uruguay, 11, 55–69.

12 Mystics or Criminals? “Cults,” Religion, and Drugs Massimo Introvigne

Introduction On July 4, 2000, I was invited to speak on Santo Daime at the conference organized in Padua, Italy, by the Latin American Association for the Study of Religion. I discussed the legal cases involving groups using ayahuasca in Europe and elsewhere, “between prophecy and police,” urging for more prophecy and less police in the treatment of these groups by public authorities (Introvigne, 2000). At that time, some 18 years ago, I was visiting Brazil and other Latin American countries often, lecturing on the issue of “cults,” or sectas in Spanish, a word which should not be translated as “sects” but as “cults,” since it serves the same derogatory function, while “sect” is a milder term in English. My main argument was that “cult” (secta) was a word no longer used by most social scientists, as it implies a negative value judgment and had become a tool to discriminate against unpopular groups. Normally, I lectured in academic settings, and often encountered the view, coming frequently from colleagues from Catholic or Protestant universities, that “at least the groups using ayahuasca should be regarded as cults.” I also visited groups often labeled as “cults” by their critics, including movements mostly known for their practice of sexual magic. Curiously, I found the same objection there: “We are not a cult, but other groups, such as those using hallucinogenic drugs in their rituals, are.” My travels bring me to unusual places, indeed. In 2017, I was invited, with other Western scholars, to two seminars in China by the Chinese Anti-Xie-Jiao Association, which has a direct connection with the Chinese Communist Party (CCP), to discuss the notion of xie jiao. Being active in a xie jiao is a crime punished with severe jail penalties in China. Both Chinese law, CCP resolutions, and decisions by the People’s Supreme Court mention the need to combat xie jiao, but definitions are either lacking or unclear (Irons, 2018). The most recent attempt to date resulted in Rule One of the Interpretations on the Issues Concerning the Application of Laws in Criminal Cases Relating to Organizing and Utilizing Evil Organizations to Destroy Law Enforcement, issued on January 25, 2017, by the People’s

DOI: 10.4324/9780429001161-13

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208  Massimo Introvigne Supreme Court and the Office of the People’s Supreme Procuratorate, interpreting Article 300 of the Criminal Code, which mentions xie jiao. These were defined as illegal organizations, which, through fraudulent use of religion, qi gong, or any other name, by deifying and promoting their ringleaders, or by fabricating and spreading superstitious fallacies and other means to confuse and deceive others … control group members and harm society. (The Supreme People’s Procuratorate of the People’s Republic of China, 2017) Each term should be, in turn, defined: Which use of religion is “fraudulent”? Which religious doctrines are “superstitious fallacies”? and so on. The term xie jiao was introduced in China to designate “unorthodox teachings” in the Ming era (Goossaert & Palmer, 2011, pp. 27–29). According to Goossaert and Palmer, the Emperor “decided on the basis of his own judgement” (Goossaert & Palmer, 2011, p. 27), which religions and movements should be banned as xie jiao, a term whose correct translation is “heterodox teachings.” The judgment was often political: Christianity as a whole was added to the list of the banned religions in 1725 and severely persecuted, until, in 1842, “British guns forced a radical policy change” (Goossaert & Palmer, 2011, p. 31). On the other hand, “it would be very misleading to reduce the whole of the imperial state’s policies to security concerns, as quite often, decisions on recognizing or banning certain cults, specialists, or rituals hinged on purely moral-theological reasons” (Goossaert & Palmer, 2011, p. 33). Palmer has also demonstrated how xie jiao acquired different meanings through the imperial, nationalist, and Communist periods, in connection with different political circumstances (Palmer, 2012). Several Chinese academics who specialize in the study and criticism of xie jiao, translate the term as “cult,” and maintain that “cults” are a universal problem, not a Chinese one only. Some academics were busy promoting translations of standard American European and anti-cult works, and even invited deprogrammers to China (Chen, 2017; Xu, 2017). They eventually realized, however, that this approach had the disadvantage to create extremely long lists of xie jiao, while the CCP and the police would prefer to concentrate their resources on the few they regard as dangerous for China’s social stability. Hence, the further translation of xie jiao as “destructive cults,” a term also used by Western anti-cultists, or (more commonly) as “evil cults,” with the implication that not all “cults” are really “destructive” or “evil.” Some Chinese academics imported from Western anti-cultism the notion of “brainwashing” as the distinctive character of “destructive cults.” This was another paradox, since the very word “brainwashing” was originally

Mystics or Criminals? “Cults,” Religion, and Drugs  209 coined by the American intelligence during the Cold War to support anti-Chinese propaganda. “Brainwashing” was something the evil Chinese Communists did (Anthony, 1996). Chinese courts, including the People’s Supreme Court, stayed away from brainwashing controversies and, as mentioned earlier, described xie jiao as groups spreading “superstition,” which is defined as something opposed to both science and socialism, and different from genuine religion. In fact, xie jiao are also defined as “pseudoreligious” movements. The secular repression of xie jiao is not a unique Chinese phenomenon, from which the West is happily immune. In fact, what Chinese call xie jiao have been constantly repressed in the West too, only under different names (see, e.g., Wright, 1995; Wright & Richardson, 2011; Wright & Palmer, 2016).

“Cults” In pre-modern Europe, not unlike in imperial China, it was taken for granted that Church and state should cooperate to repress heresy, and to persecute it in the harshest possible way. Even such a rational man, and moderate theologian, as Thomas Aquinas (1225–1274) argued that, if the state executes those who spread false money, it should also execute the heretics, who spread false doctrines and are even more dangerous (Aquinas, 2000, Summa theologiae, Secunda secundae, q. 11, art. 3). After the Reformation, Protestant states, starting with Geneva under John Calvin (1509–1564), changed the definition of heresy but continued to execute heretics (Bainton, 1953). The French Revolution eliminated the last vestiges of the Inquisition and triumphantly proclaimed that the time of religious liberty had come; if, at the expenses of killing several thousand Catholic priests during the Great Terror (Shusterman, 2014). However, when the dust of the Revolution settled, it became clear that states were still punishing heterodoxy, although based on different grounds. In the early nineteenth century, we find what is today the English word “cult” (again, under the guise of secta in Spanish, secte in French, and setta in Italian) used in official documents to warn against the evil activities of Freemasonry. Catholic authors and authorities used these labels to indicate that Freemasons promoted ideas the Church could not accept. However, some very secular official and police documents, including in countries whose authorities were officially hostile to the Catholic Church, called Freemasonry a “cult” because they suspected it, not of anti-Catholicism, but of conspiring against the governments (Martin, 2000). Here, a new meaning of “cult” was introduced, and the notion of heresy went through a process of secularization. “Cults” were religious, spiritual, or esoteric organizations regarded as subversive and suspected of being dangerous for the state.

210  Massimo Introvigne Once defined, this notion of “cult” was extended to groups very different from Freemasonry that, today, would be called “new religious movements.” And it would be unfortunately untrue to argue that at least modern states did not kill heretics. In Italy, in 1878, the military police raided the communal settlement of the Giurisdavidic Religion on Mount Amiata, Tuscany, killing its founder Davide Lazzeretti (also spelled Lazzaretti, 1834–1878) and three of his followers, and leaving another 150 wounded (Tedeschi, 1989). In 1896–1897, the government of Brazil launched a military campaign against the communal settlement of rural prophet Antonio Conselheiro (1830–1897) in Canudos, Bahia, killing him and some 20,000 followers (Levine, 1995). The tragedy is the subject matter of the Nobel Prize laureate Mario Vargas Llosa’s 1984 novel, The War of the End of the World (Vargas Llosa, 1984). Both the Mount Amiata and Canudos movements did not recognize the authority of the local Catholic bishops and were declared “heretic” by the Catholic Church. But, both in Brazil and Italy, the governments at that time were anti-clerical and even put some Catholic bishops in jail. They did not care about heresy, but violently eradicated these “cults,” regarding them as subversive, in the sense that they did not recognize the authority of the governments. A new criminological definition of “cult” was born, based not on creeds but on deeds. This approach started with the father of criminology himself, Italian physician Cesare Lombroso (1835–1909), ironically himself, an advocate of Spiritualism (Lombroso, 1909), which, in some countries, was regarded as a “cult.” He obtained and dissected Lazzeretti’s body looking for “anomalies.” Cults, he suggested, are religious groups conspiring against the public order and following a mentally disturbed leader (Lombroso, 1890, pp. 95–99). Obviously, this approach did not particularly focus on the cult’s “heresies” or doctrines. Although Lombroso was very much respected during his lifetime and beyond, in recent years, a movement in Italy called for removing statues of the great criminologist from public squares and changing the names of streets and museums named after him (Milicia, 2014a). Lombroso was accused of having criticized the bloody repression of Catholic revolts in Southern Italy against the newly established and anticlerical Italian state, by arguing that Catholic peasants in the South, not unlike “cultists,” such as the followers of Lazzeretti, were backward ignoramuses manipulated by mentally disturbed leaders (Milicia, 2014b). Worse still, although this happened after his death, the dangers of Lombroso’s theories became apparent when they were used by both Fascists in Italy and Nazis in Germany to justify the persecution of religious minorities (Petracci, 2014). In fact, the totalitarian regimes went one step beyond Lombroso. While, for Lombroso, “cults” were groups conspiring against the governments, Nazism and Fascism killed a good number of Jehovah’s Witnesses and Pentecostals who, strictly speaking, had no political interests. However, to be

Mystics or Criminals? “Cults,” Religion, and Drugs  211 labeled as a “cult,” it was now enough not to support the government publicly or to exhibit a lifestyle different from the regime’s normative model. In the infamous Fascist administrative order of 1935, the Pentecostal “cult” was even accused of “compromising the psychical and physical racial integrity of the Italians,” by speaking in tongues and unduly exciting their nervous systems (Rochat, 1990, p. 246). The fall of the Nazi and Fascist regimes did not mean that criminology abandoned its own use of the word “cult,” which dated back to Lombroso and continued to indicate a religious group that committed serious crimes; by now, not necessarily including conspiring to overthrow the government. However, in the meantime, theologians and sociologists had started using the category of “cult” with meanings different from criminologists. Christian theologians started realizing that the word “heresy” evoked the Inquisition and the burning at stake of dissidents. Some of them preferred to use what was once in their literature a synonym of “heresy,” “cult,” which in the meantime, had entered common language. However, they used the word with a meaning different from criminologists. For them, creeds were more important than deeds, and a group who denied the Trinity or the divinity of Jesus Christ was a “cult,” even if its members were otherwise good citizens (Martin, 1965). With sociologists, translation problems became even more complicated because a tradition had evolved from Max Weber (1864–1920) and Ernst Troeltsch (1865–1923), although the second was not a sociologist but a church historian using sociological tools (Weber, 1904–1905, 1906a, 1906b; Troeltsch, 1912). The tradition went through various stages of development in the United States (a key passage being the work of Niebuhr, 1929), using both “cult” and “sect,” and distinguishing between them. Without rehashing this often-told story, what is important here is that, while they started their careers as contemporaries of Lombroso, who was well-known in German-speaking countries, both Weber and Troeltsch completely ignored his criminological categories. For them and their successors, “sects” and “cults” were not heterodox, let alone criminal, religious groups, but religions in an early stage of their development, regarded as marginal by, and critical of, society at large, and not, or not yet, fully organized (Richardson, 1978, 1979, 1993; Dillon & Richardson, 1999). The overlapping activities of criminologists and sociologists created a confusion, not completely resolved to this day. “Cult,” based on the criminological tradition, and the parallel framing by Christian critics of “cults” as heresies, became generally understood as a word charged with strong negative connotations, while sociologists used it in a value-free way. Deciding what group was really a “cult” became difficult. This situation went from bad to worse with the “cult wars” of the 1970s and 1980s, when a societal reaction developed against the success in the West of new religious movements, either imported from Asia or domestic. Parents and the media did not understand why youths might be willing to

212  Massimo Introvigne sacrifice their careers in order to spend their lives in exotic religious organizations, and the modern anti-cult movement was born. Its story has been told in several valuable studies (including Shupe & Bromley, 1980; Bromley & Shupe, 1981; Shupe & Bromley, 1994), and a short summary will suffice for the purposes of this article. A handful of psychologists imported the notion of “brainwashing” from Cold War American propaganda against Communism (and, as mentioned earlier, against China), arguing that these youths did not join the groups voluntarily but were manipulated trough mysterious mind control techniques. “Cults” were defined as groups using “brainwashing,” yet another evolution of the criminological definition—but one making reference, rather than to actual crimes such as violence or sexual abuse, to a hypothetical crime (brainwashing), whose very existence was disputed. In fact, sociologists and other scholars reacted against the “brainwashing” theories, claiming that they were pseudo-scientific tools used to deny religious liberty to unpopular groups labeled as “cults.” The argument, they claimed, was circular. We know that certain groups are “cults” because they use “brainwashing,” and we know that they use “brainwashing” because, rather than persuading young people to embrace “reasonable” spiritual teachings, they spread bizarre forms of belief, i.e., they are “cults” (Kilbourne & Richardson, 1984; Kilbourne & Richardson, 1986; Richardson, 1996). A good deal of name-calling went on between the vast majority of the academic specialists of new religious movements and anti-cultists during the so-called “Cult Wars” (Introvigne, 2014; Gallagher, 2016). Several studies, starting from the seminal The Making of a Moonie by Eileen Barker, demonstrated that “cults” accused of using so-called “brainwashing” techniques obtained a very low percentage of conversions, proving that these techniques, if they existed at all, were not very successful (Barker, 1984). In 1990, in the case U.S. v. Fishman, a federal court in California concluded that “brainwashing” was not a scientific concept and that testimony about “cults” based on the brainwashing theory was not admissible in American courts of law (U.S. District Court for the Northern District of California, 1990). Fishman was the beginning of the end for the American anti-cult movement’s social relevance (Richardson, 2014, 2015). The notion of “brainwashing” was still defended by a tiny minority of scholars and inspired some laws, in France and elsewhere, but they soon proved difficult to enforce (Anthony & Introvigne, 2006). Another consequence of the Cult Wars was that most academic scholars decided not to use the word “cult” because of its heavy judgmental and criminological implications, replacing it with “new religious movements.” The new label evolved from Japanese and Korean concepts of “new religions,” common in Asia since the 1930s, and later applied to Western movements by Jacob Needleman (Needleman, 1970), but was defined and widely adopted thanks to the efforts of Eileen Barker.

Mystics or Criminals? “Cults,” Religion, and Drugs  213

“Criminal Religious Movements” (CRMs) Anti-cultists accused scholars of new religious movements of being “cult apologists,” for which all “cults” were inoffensive. This was never the case, as these scholars always acknowledged that some religious movements, both outside and inside mainline religious traditions, created real “social problems,” and advocated and committed very real crimes such as terrorism, homicide, rape, and child abuse, not to be confused with the imaginary crime of brainwashing (Barker, 2011, pp. 201–203). In 1993, the Federal Bureau of Investigation (FBI) siege of the headquarters of the Branch Davidians in Waco, Texas, ended in the death of 80 members of the group, including 22 children (Wright, 1995; Wessinger, 2017). The Federal Bureau of Investigation’s (FBI) Critical Incidents Response Group started studying what went wrong in Waco, seeking the cooperation of academic scholars of new religious movements. I, myself, co-organized and chaired a seminar for FBI agents in 1998 in Fredericksburg, VA (Barkun, 2002, 103), where Eileen Barker, J. Gordon Melton, Jim Richardson, Cathy Wessinger, Susan Palmer, and Jane Williams-Hogan also spoke. At the seminar, it was immediately clear to the FBI that scholars would not use the word “cult,” yet the agents wanted to know which, among thousands of religious groups, were most inclined to commit serious crimes and should be kept under surveillance. Scholars proposed various tentative criteria, and the conversation between the agency and some of them continued for several years, although how much scholars really influenced FBI practice is a matter of dispute (see Johnson & Weitzman, 2017). From 2001 to 2002, several leading scholars of new religious movements from Europe and the United States (including the undersigned) joined in a project called “Cults, Religion and Violence,” led by David Bromley and J. Gordon Melton, that included seminars and sessions at conferences and culminated, in 2002, in the publication of a book with the same title by Cambridge University Press (Bromley & Melton, 2002). The project considered the earlier dialog between some scholars and the FBI, but was not limited to the issues discussed there. While the project “Cults, Religion and Violence” was developing, the bombings of 9/11 occurred, with two important effects: It made it somewhat obvious that “bad” groups existed within traditional religions as well, a notion reinforced by the scandals of Catholic pedophile priests, which also extended to other mainline religions (Shupe, 1995, 1998, 2007; Shupe et al., 2000), and created a new urgency in governments all over the world to define the features of “extremist” religious groups, sometimes called, once again, “cults.” Most scholars continued to oppose the use of “cult,” as an expression compromised by its association with the discredited theory of brainwashing, yet recognized that law enforcement agencies did need criteria for identifying the dangerous groups (Richardson, 1978, 1993).

214  Massimo Introvigne In the first decades of the twentieth century, while China developed its new anti-xie-jiao policy, the Russian Parliament and courts elaborated their own definitions of “extremist groups,” originally introduced in 2002, in the aftermath of 9/11, to limit the activities of radical fundamentalist Islam in Russia. Later, however, most new religious movements were labeled as “extremist groups.” In 2017, the Jehovah’s Witnesses were “liquidated” and banned in Russia as an “extremist group,” and legal proceedings were started to “liquidate” the Church of Scientology and several other movements. Definitions of “extremist groups” in Russia ran into the same problems China experienced with xie jiao, but Russian courts introduced some criteria of their own (Falikov, 2018). A crucial one in the case of the Jehovah’s Witnesses was “exclusivism,” as Russian judges explained that should be regarded as “extremist” any group that argues that it is the only true religion and way of salvation and that all other religions are false (Introvigne, 2018). Obviously, we find similar affirmations in the holy books and statements of most religions, and religion in general is not a place we can expect to find pluralistic and relativistic ideas of truth. The exclusivity test, once again, refers to belief rather than behavior, and can easily lead to the conclusion that most religions are “extremist groups.” In my own opinion, “criminal religious movements” (CRMs) is a more accurate and useful category than “cults.” It uses, although selectively, elements from the criminological tradition. It avoids the word “cult” and tries to disentangle the category from both the folk psychology of brainwashing and the politics of “extremism” in theology. A criminal religious movement is a religious movement that advocates for, or consistently engages as a group in, major violent or criminal activities, including terrorism, homicide, physical violence against members, dissidents or opponents, rape, sexual abuse of minors, or major economic crimes (the definition is my own). There are five key elements of this definition. First, the definition refers to religious movements. There are many criminal movements and organizations that are not religious, but this is not the problem we are discussing at present. Here, I favor a broader definition of religion, including spiritual and esoteric groups. The definition does not purport to solve all the problems associated with defining “religion” but, at the same time, stays away from attempts to label certain groups as “pseudo-religious” that are either based on the naïve notion that all religions are benign, or lead to very difficult questions about what a “genuine” religion is (Platvoet & Molendijk, 1999). For the functional purpose of the definition, a religious group is a group characterized by religious beliefs and practices, without investigating their orthodoxy, quality, or “strangeness.” Second, the definition refers to crimes committed, advocated, or justified by a group as a group. It is not enough that some members of the movement commit crimes. That some Catholic priests are pedophiles does not make the Catholic Church a CRM, as the institution’s doctrines do not condone

Mystics or Criminals? “Cults,” Religion, and Drugs  215 pedophilia (although some bishops did), and the overwhelming majority of Catholics and priests abhor it. The definition implies that the movement, as a group, in its corporate capacity, advocates in its doctrines for, or commits acts that are, consistently and systematically criminal; although it also recognizes that, in some cases, one single “critical incident,” for example, a terrorist attack, may be enough to identify the group as a CRM. Third, the definition implies that crimes should be major ones, such as terrorism, rape, homicide, child abuse, physical violence, and even serious and consistent economic crimes, such as international money laundering. Many religious groups are accused in some countries of tax evasion and minor administrative wrongdoings. This alone should not lead to the conclusion that the group is a CRM. Fourth, the definition also insists on well-defined crimes, punished by existing laws of general application, and not by new laws created for the specific purpose of acting against the so-called “cults.” As such, it focuses, for example, on physical violence, rather than on elusive notions of psychological violence; on beating or murdering opponents in this life, rather than on threatening them with the flames of hell in the next, and so on. The fifth comment emphasizes that definitions never solve all problems, and grey areas will always remain. CRMs are groups that commit and/ or advocate violence. Advocating or inciting violence is already a form of violence. A religious movement consistently and systematically using hate speech may be eventually recognized as a CRM.

Are Ayahuasca Movements CRMs? Movements whose rituals include the consumption of ayahuasca and other so-called “entheogenic” substances are accused in various countries of being “cults” (see Hobbs, 2018, where the author translates the French secte and parallel words from several Continental European languages as “sect” while, as mentioned earlier, I believe that the correct translation is “cult”). My answer to the question of whether they deserve to be labeled “cults” is, from my own point of view, easy. They are not “cults” because there are no “cults.” “Cult” is just a convenient label created to discriminate against religious and spiritual movements that private organizations and/or governments do not like. The appropriate question is whether these groups are criminal religious movements (CRM). If violence was the only test, the negative answer would be very easy. The groups discussed in this volume are normally peaceful. Even dissent and schism did not generate violence, as is unfortunately common in many other religious traditions. However, I define CRM as groups engaging in “major violent or criminal activities,” and not all criminal activities are violent. The case of groups ritually using hallucinogenic substances is very interesting, and is a stress test for the very category of CRM. What does “criminal activity” mean within the context of the definition? A facile answer would be that it is

216  Massimo Introvigne an activity defined as criminal by the law. This answer, however, would remove the analysis of what a CRM is from the domain of social science and make it the exclusive province of the State. It would also make the definition open to all sorts of manipulations. If a government does not like a religion, it would simply promulgate a law making what is typical of that religion illegal. The concept of “criminal activity,” accordingly, cannot have the existing laws, which are different from state to state, as its only parameter. International consensus, the attitude of international organizations, the opinions of scholars should also be considered. There is certainly a widespread consensus that sacrificing human beings, at least in the twenty-first century, is a criminal activity, and that preaching that the Earth is flat is not. There is no such consensus for the use of ayahuasca and similar substances. Here, we are confronted with two radical answers. An anti-prohibitionist attitude simply states that consumption of hallucinogenic drugs should be free, irrespective of the context: medical, religious, or recreational. A prohibitionist attitude would reduce the question to pharmacology, asking experts to determine whether ayahuasca, or other substances used in religious rituals, are harmful. Other articles in this book discuss this question in depth. I am not a pharmacologist, but I do not believe that pharmacology alone can decide this question. In fact, the very notion of “entheogenic” substances is not a pharmacological one. Whether a substance serves as entheogenic cannot be determined based on its chemical analysis. “Entheogenic” is an ascribed meaning, socially constructed in a specific context. The same substance may be simply a “drug”—whose use prohibitionists would repress, and anti-prohibitionists allow—in a context, and an “entheogen” in another. The distinction between deeds and creeds is important—and should be maintained, lest somebody invokes religious liberty to justify human sacrifice—but is not absolute. In practice, creeds color deeds. I do agree with the US Supreme Court decision of 2006, arguing that the UDV, one of the religions using ayahuasca in their rituals, should be allowed to do so in the name of religious liberty. The UDV, the Court summarized, effectively demonstrated that its sincere exercise of religion was substantially burdened [by the prohibition to use the substance in its rituals], and the Government failed to demonstrate that the application of the burden to the UDV would, more likely than not, be justified by the asserted compelling interests. (Supreme Court of United States, 2006) Note that the Supreme Court made a very limited use of pharmacology in its decision. Citing previous cases on peyote, it concluded that a certain substance became what UDV prefers to call “hoasca” through the ritual. As such, it was covered by the protection of religious liberty in the US Constitution and in the Religious Freedom Restoration Act of 1993.

Mystics or Criminals? “Cults,” Religion, and Drugs  217 If the US Supreme Court was right in the UDV case, as I believe it was, the religious movements consuming ayahuasca and parallel substances in their rituals are not criminal religious movements, and the use of the label “cult” for them is simply defamatory. There are three possible objections to this conclusion. First, somebody could argue that certain substances are so obviously dangerous that no religious ritual, or appeal to religious liberty, may make their use acceptable, just as religious freedom does not cover human sacrifice. I agree, and a hypothetical First Church of Heroin might find itself in a different situation. Here, we would need again to consult the pharmacologists, but it seems to me that the existing literature on ayahuasca never compared it to heroin, and this was also the position of the US Supreme Court in 2006. Second, the objection can be raised that leaders of ayahuasca-related movements committed crimes, mentioning among them the Colombian Comunidad de Paz de Pensamiento Bonito (Peace Community of Nice Thoughts), whose founder, Orlando Gaitán, was arrested in 2015 on charges of sexual abuse of some 50 women, some of them minors (Caicedo Fernández, 2018; see also, Sánchez Sarmiento, 2015, a master’s thesis by an ex-member of the Comunidad). Assuming that a final decision will declare Gaitán guilty as charged, still there would be no evidence that his is a typical case and that sexual abuse is more prevalent among leaders of ayahuasca movements than among Catholic priests or Buddhist lamas. Third, it may be argued that, in some cases, there is a direct relation between ayahuasca and abuse. Allegedly, ayahuasca has been used to weaken the defense of women who were subsequently abused. In July 2018, in San Martín de Pangoa in the Satipo province of the Junín region in Peru, the police arrested Felix Steven Manrique, known as “Prince Gurdjieff,” who was living with six women and five children. The police operation followed a long campaign by the father of one of the women, the Spaniard Patricia Aguilar, who had joined the group when she was barely 18. After the police action, the media reported that Patricia was “deprogrammed.” In 2019, Manrique was sentenced to 20 years in prison for “kidnapping and sexually abusing” his “wives” (‘Príncipe Gurdjieff’ es condenado 20 años, 2019). As Mario Vargas Llosa observed in an editorial published by the Spanish daily El País, Manrique may well be an unsavory character, but the story has been told by the media through a standard anti-cult narrative, without investigating whether Patricia was happy in the “cult” or if she wished to be “deprogrammed” (Vargas Llosa, 2018). What is interesting here is the claim reported in the media that the women were compelled to submit to Manrique (“brainwashed”) through the use of ayahuasca. A woman who claimed to have left the group before the raid, and asked to remain anonymous fearing retaliations, told the Spanish TV network Telecinco, “He [Manrique] gave us ayahuasca so that we could see things we did not believe in. It was a terrible experience” (Víctima del líder de la secta peruana, 2018). The claim was widely disseminated in the media.

218  Massimo Introvigne The “Prince Gurdjieff” group was not a typical ayahuasca movement, nor was it very much related to the Armenian esoteric master George Ivanovich Gurdjieff (1866?–1949). Its main reference was the neo-Gnosticism of Samael Aun Weor (1917–1977). Did its leader really use ayahuasca to make women “see things they did not believe in,” and persuade them to have sexual relations with him? The investigation appears to be tainted by a generous dose of anti-cult rhetoric; yet, at this stage, the charge does not seem to have been proved. Even if this was the case, we would be confronted with a case of misuse of ayahuasca in a religious context, which is different from its normal use. Not only ayahuasca, but deep meditation or even vigorous Christian preaching about the torments of hell may perhaps be used to impress young women and make it easier for predatory religious leaders to seduce them. However, since the laws of the Roman Republic and Empire, it is a well-established principle that abusus non tollit usum: The misuse of something is not an argument against its proper use. I stand by my conclusion of 18 years ago (Introvigne, 2000): We need less police and more prophecy to understand ayahuasca-related new religious movements. Although, like all religious traditions, they may include individuals who commit crimes, reconstructing the tradition as a whole as a criminal “cult” belongs to media sensationalism and heresy hunting, not to social science.

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Mystics or Criminals? “Cults,” Religion, and Drugs  219 Chen, Q. (2017, September 15–16). Reflection on the definition of cults and its related problems. [Conference presentation]. The question of Xiejiao in China and the case of the Church of Almighty God, University of Hong Kong. Dillon, J., & Richardson, J. T. (1999). The “cult” concept: A politics of representation analysis. Syzygy: Journal of Alternative Religion and Culture, 3, 185–197. https://doi.org/10.1007/978-1-4419-9094-5_1 Falikov, B. (2018). The provisions against religious extremism and illegal business activity as instruments for outlawing religious minorities in Russia: The case of the Church of Scientology. The Journal of CESNUR, 2(2), 101–110. Gallagher, W. V. (Ed.). (2016). “Cult wars” in historical perspective: New and minority religions. Routledge. Goossaert, V., & Palmer, D. A. (2011). The religious question in modern China. University of Chicago Press. Hobbs, J. (2018). “Altered by the hand of man”: Contextualizing ayahuasca law in Britain and Europe. In B. C. Labate & C. Cavnar (Eds.), The expanding world ayahuasca diaspora: Appropriation, integration, and legislation (pp. 42–60). Routledge. Introvigne, M. (2000, July 4). Le Chiese del Santo Daime dal Brasile all’Europa: tra profezia e polizia [The Churches of Santo Daime from Brazil to Europe: Between prophecy and police]. [Conference presentation]. ALER (Latin American Association for the Study of Religion), Padua, Italy. https://www.cesnur.org/ testi/mi_daime2K.htm Introvigne, M. (2014). Advocacy, brainwashing theories, and new religious movements. Religion, 44(2), 303–319. Introvigne, M. (2018). The social construction of “extremism” in Russia: From the Jehovah’s Witnesses to Scientology and beyond. The Journal of CESNUR, 2(2), 93–100. Irons, E. (2018). The list: The evolution of China’s list of illegal and evil cults. The Journal of CESNUR, 2(1), 33–57. Johnson, S. A., & Weitzman, S. (Eds.). (2017). The FBI and religion: Faith and national security before and after 9/11. University of California Press. Kilbourne, B. K., & Richardson, J. T. (1984). Psychotherapy and new religions in a pluralistic society. American Psychologist, 39(3), 237–251. Kilbourne, B. K., & Richardson, J. T. (1986). Cultphobia. Thought, 61(241), 258–266. Levine, R. M. (1995). Vale of tears: Revisiting the Canudos massacre in Northeastern Brazil, 1893–1897. University of California Press. Lombroso, C. (1890). Pazzi ed anomaly [Crazy and anomalous]. S. Lapi. Lombroso, C. (1909). Ricerche sui fenomeni ipnotici e spiritici [Research on hypnotic and spiritual phenomena]. Unione Tipografica Editrice Torinese. Martin, L. P. (Ed.). (2000). Les francs-maçons dans la cité. Les cultures politiques de la franc-maçonnerie en Europe (XIXe–XXe siècles) [Freemasons in the city: The political cultures of Freemasonry in Europe (19th–20th centuries)]. Presses Universitaires de Rennes. Martin, W. R. (1965). The kingdom of the cults. Zondervan. Milicia, M. T. (2014a). La protesta “No Lombroso” sul web. Narrative identitarie neo-meridionaliste. [The protest “No Lombroso” on the web: Neo-southern identity narratives]. Etnografia e ricerca qualitativa, 14(2), 265–286. Milicia, M. T. (2014b). Lombroso e il brigante. Storia di un cranio conteso [Lombroso and the brigand: History of a disputed skull]. Salerno.

220  Massimo Introvigne Needleman, J. (1970). The new religions. Doubleday & Co. Niebuhr, H. R. (1929). The social sources of denominationalism. Henry Holt & Company. Palmer, D. A. (2012). Heretical doctrines, reactionary secret societies, evil cults: Labelling heterodoxy in 20th-century China. In M. Yang (Ed.), Chinese religiosities: The Vicissitudes of modernity and state formation (pp. 113–134). University of California Press. Petracci, M. (2014). I matti del Duce. Manicomi e repressione politica nell’Italia fascista [The madmen of Il Duce: Asylums and political repression in fascist Italy]. Donzelli. Platvoet, J. G., & Molendijk, A. L. (Eds.). (1999). The pragmatics of defining religion: Contexts, concepts and contests. Brill. ‘Príncipe Gurdjieff’ es condenado 20 años. [“Prince Gurdjieff” was sentenced to 20 years]. (2019, March 30). Trome. https://trome.pe/actualidad/patricia-aguilar-felix-manrique-20-anos-carcel-trata-personas-secuestrar-seis-mujeres-video-fotos-nndc-117945/ Richardson, J. T. (1978). An oppositional and general conceptualization of cult. Annual Review of the Social Sciences of Religion, 2, 29–52. Richardson, J. T. (1979). From cult to sect: Creative eclecticism in new religious movements. Pacific Sociological Review, 22, 139–166. Richardson, J. T. (1993). Definitions of cult: From sociological-technical to popular-negative. Review of Religious Research, 34(4), 348–356. Richardson, J. T. (1996). Sociology and the new religions: “Brainwashing,” the courts, and religious freedom. In P. Jenkins & S. Kroll-Smith (Eds.), Witnessing for sociology: Sociologists in court (pp. 115–137). Praeger. Richardson, J. T. (2014). “Brainwashing” as forensic evidence. In S. J. Morewitz & M. L. Goldstein (Eds.), Handbook of forensic sociology and psychology (pp. 77–85). Springer. Richardson, J. T. (2015). “Brainwashing” and mental health. In H. S. Friedman (Ed.), Encyclopedia of mental health (2nd ed., pp. 210–215). Elsevier. Rochat, G. (1990). Regime fascista e Chiese evangeliche. Direttive e articolazioni del controllo e della repressione [Fascist regime and Evangelical churches: Directives and articulations of control and repression]. Claudiana. Sánchez Sarmiento, B. (2015). Entre la fraternidad y la violencia. Un caso de neo-chamanismo urbano [Between brotherhood and violence: A case of urban neoshamanism] (Master’s thesis). Pontificia Universidad Javieriana. http://ramwan.net/tesis/96.betty-sanchez.pdf Shupe, A. D., Jr. (1995). In the name of all that’s holy: A theory of clergy malfeasance. Praeger. Shupe, A. D., Jr. (1998). Wolves within the fold: Religious leadership and the abuse of power. New Rutgers University Press. Shupe, A. D., Jr. (2007). Spoils of the kingdom: Clergy misconduct and religious community. University of Chicago Press. Shupe, A. D., Jr., & Bromley, D. J. (1980). The new vigilantes: Deprogrammers, anti-cultists, and the new religions. Sage. Shupe, A. D., Jr., & Bromley, D. J. (Eds.). (1994). Anti-cult movements in cross-cultural perspective. Garland. Shupe, A. D., Jr., Stacey, W. A., & Darnell S. E. (Eds.). (2000). Bad pastors: Clergy misconduct in modern America. NYU Press.

Mystics or Criminals? “Cults,” Religion, and Drugs  221 Shusterman, N. (2014). The French Revolution: Faith, desire, and politics. Routledge. Supreme Court of United States. (2006, February 21). Gonzales, Attorney General, et al. v. O Centro Espirita Beneficente União do Vegetal et al. https://scholar. google.com/scholar_case?case=7036734975431570669&hl=en&as_sdt=2006. Tedeschi, E. (1989). Per una sociologia del millennio. David Lazzaretti: carisma e mutamento sociale [For a sociology of the millennium. David Lazzaretti: ­Charisma and social change]. Marsilio. The Supreme People’s Procuratorate of the People’s Republic of China. (2017). 关于 办理组织、利用邪教组织破坏法律实施等刑事案件适用法律若干问题的解释 [Interpretations on the issues concerning the application of laws in criminal cases relating to organizing and utilizing evil organizations to destroy law enforcement]. Spp.gov.cn. http://www.spp.gov.cn/zdgz/201701/t20170126_179794.shtml Troeltsch, E. (1912). Die Soziallehren der christlichen Kirchen und Gruppen [The social teachings of the Christian churches and groups]. J. G. B. Mohr. U.S. District Court for the Northern District of California. (1990). Opinion (Jensen J.). Case No. CR-88-0616 DLJ. United States v. Steven Fishman, 13 April 1990. 743 F.Supp. 713. http://www.leagle.com/xmlResult.aspx?xmldoc= 19901456743FSupp713_11345.xml&docbase=CSLWAR2-1986-2006. Vargas Llosa, M. (1984). The war of the end of the world (H. R. Lane, Trans.). Farrar Straus & Giroux. Vargas Llosa, M. (2018). La españolita y el Príncipe Gurdjieff [The young Spaniard and Prince Gurdjieff.] El País. https://elpais.com/elpais/2018/07/12/opinion/1531421289_205020.html Víctima del líder de la secta peruana [Victim of the leader of the Peruvian sect]. (2018, July 8). Telecinco.es https://www.telecinco.es/vivalavida/sectap er u a n a- pat r ic i a- abu s o s - s ex u a le s - aya hu a s c a- pr i nc ip e - g u rdjief f _ 2 _ 2591430124.html Weber, M. (1904–1905). Die protestantische Ethik und der Geist des Kapitalismus [The Protestant ethic and the spirit of capitalism]. Archiv für Sozialwissenschaft und Sozialpolitik, 20, 1–54, and 21, 1–110. Weber, M. (1906a, April 13). Kirchen und Sekten [Churches and sects] (Part one). Frankfurter Zeitung, 50(102). Weber, M. (1906b, April 15). Kirchen und Sekten [Churches and sects] (Part two). Frankfurter Zeitung, 50(104). Wessinger, C. L. (2017). The FBI’s “cult war” against the Branch Davidians. In S. A. Johnson & S. Weitzman (Eds.), The FBI and religion: Faith and national security before and after 9/11 (pp. 203–243). University of California Press. Wright, S. A. (Ed.). (1995). Armageddon in Waco: Critical perspectives on the Branch Davidian conflict. University of Chicago Press. Wright, S. A., & Palmer, S. (2016). Storming Zion: Government raids on religious communities. Oxford University Press. Wright, S. A., & Richardson, J. T. (2011). Saints under siege: The Texas state raid on the Fundamentalist Latter-Day Saints. NYU Press. Xu, T. (2017, September 15–16). The comparison and dialogue of definitions of cult between China and America. [Conference presentation]. The Question of Xiejiao in China and the Case of the Church of Almighty God, University of Hong Kong.

13 A Defense Expert Witness on Ayahuasca An Interview with José Carlos Bouso Beatriz Caiuby Labate BEATRIZ LABATE: How

did you start working as an expert witness in ­ayahuasca cases? JOSÉ CARLOS BOUSO: By chance, I guess. To conduct my studies here in Spain, I had to interview a lot of people. I visited almost all the Daimista communities and I met many ayahuasca users. After so many years, I am more or less known in Spain within the ayahuasca world. In a way, I’m considered an expert; a scientific expert on ayahuasca. As I am deeply immersed in the scientific ayahuasca world, I have become recognized not only by those who take ayahuasca, but also by the lawyers who represent such people. Some of these lawyers are ayahuasca users themselves or support their cause. The first time I went to a trial was with Dr. Jordi Riba. We both went. I had not yet begun working with him at the Hospital de Sant Pau, but I had already undertaken, together with Dr. Fábregas and the team that we formed for the purpose, the most important research to date on long-term effects of ayahuasca use. So we went, Dr. Riba as an expert in laboratory studies and myself as an expert in studies of long-term effects, which is how we always went to the trials until we ceased working together. BL:  What year was that? JC:  I think it was in 2006 or 2007. It was an administrative trial [juicio administrativo]. It was the first time we had decided to take this kind of action. Santo Daime asked the Spanish Agency of Medicine [Agencia Española del Medicamento: AEM] for permission to import ayahuasca since, although Santo Daime has religious status in Spain, it does not have a license to import the sacrament [ayahuasca]. BL:  Is that the Santo Daime church in Madrid? JC:  The national church is near Madrid. Different churches are found in different parts of Spain. There is the national association to which all the Spanish Daimistas are associated, those affiliated with the Spanish Santo Daime. Although now there are small Santo Daime communities scattered in different places. I interviewed Juan Carlos de la Cal and other Daimistas various times with the idea of beginning a study similar to the Brazilian one in Spain. Before that I had conducted

222

DOI: 10.4324/9780429001161-14

A Defense Expert Witness on Ayahuasca  223 interviews several times with the UDV, but after almost two years I had got nowhere, so I started talking to Santo Daime. They already knew that we had conducted the study in Brazil, because part of it had been undertaken in Mapiá. So, with myself as an expert in long-term studies and Jordi as an expert in laboratory studies, we went to trial for the first time, and lost the case. It was an administrative trial in which we were part of the defense team. I don’t know if these are the exact terms because I don’t remember the administrative procedures very well, but I suppose that the state lawyer, who, in this case, is the equivalent of a public prosecutor, requested a report from the Spanish Agency of Medicine (AEM) in response to the reports by Jordi Riba and myself that summarized the entire scientific literature available at the time, accompanied by the results of our studies. Jordi had already published some of his studies, the long-term studies with the UDV conducted by [Charles] Grob’s team had been published, there were some studies with animals, and a lot was known about DMT [Dimethyltryptamine]. There had been the work of [Stephen] Szára in the 1950s. In sum, there was much less information than there is now but we each presented a report with all the information available at the time, and these were up against a report of just a couple of pages written by the technician from the Spanish Agency of Medicine, in which almost nothing that appeared matched reality. BL:  What did the government toxicologist say? JC: The toxicologist’s report said that the active principles of ayahuasca produce cardiotoxicity, arrhythmias, and pulmonary weakness (whatever that means), and that the said effects can last up to 60 days due to the slow elimination of these active ingredients via the urine. Effects that, obviously, have never been encountered. It was odd because he was a technician from the Spanish Agency of Medicine, the same institution that had authorized the clinical trials by Jordi Riba that had subsequently shown the low, if not zero, toxicity of ayahuasca on the cardiovascular system. It is incredible that a technician from the Spanish Agency of Medicine could present a report without consulting studies authorized by the same agency. It is completely crazy because, in the end, the judge accepted a report based on made-up information, dismissing our own and, finally, the importation of the sacrament was not authorized. BL: My question is somewhat speculative, but what do you think the motives are behind such a report? Is it ignorance, or laziness? Is it ideological? A lack of time? A combination of everything? JC: It’s a combination of everything. Basically it’s ignorance, reluctance and, let’s be honest, stigma, with the bundle of prejudices that this involves. Many people, including toxicological experts and judges, tremble whenever they hear the words “drug” and/or “hallucinogens,” and the fear of the unknown, I guess, skews their judgments. This is one

224  Beatriz Caiuby Labate of the lessons we have learned now, not in the wake of that particular trial, but as a result of other trials. So, little by little, we are learning to design strategies. BL:  What have you done? JC:  The judges attach much more importance to the testimonies given by public authorities than those given by private parties because there is always a lurking suspicion that you are not impartial, as they are paying you, although we do not charge for these trials, or we do not always charge. In the previous case, I think that the expert simply had no idea what he was holding in his hands. He took the text from a pharmacology manual that made no mention of DMT, but probably talked about LSD, and he mixed them up. He didn’t perform a bibliographic search to review the literature. He jumbled together the little information known then about the effects of hallucinogens and applied them to ayahuasca. And, with all this incorrect information, the judge assembled the arguments to issue a ruling not based on accurate evidence. The expert who issued the report was absent, meaning that his arguments could not be refuted. Since then, we advise the lawyers to request the prosecution experts to be present at the trials, either in person or via video conference. BL:  Were you just an expert witnesses at hearings or did you also send a report? JC:  We were present and we also presented reports. In this specific case, and in others, Dr. Josep Maria Fábregas was also present as an expert. As I said earlier, Jordi’s report showed the results of the studies he was conducting in Sant Pau, all authorized by the Spanish Agency of Medicine, many of whose results had also already been published. None of the subjects of his experiments had suffered adverse reactions, neither before nor after. When the experiments had concluded, the medical tests showed no biomedical alterations. I wrote the reports based on the information available at the time from long-term studies in which no neuropsychological or psychiatric disorders had been found. I also used the results from the studies that we were doing in Brazil, where we had likewise found no results indicating that longterm ayahuasca consumption induces any kind of neurodegenerative aftereffect, which is what worries them; whether it can eventually produce neurotoxicity. Dr. Fábregas explained the experience of the clinic run by himself in Brazil where drug addicts were treated with ayahuasca. BL:  And what was the final ruling? JC: The final ruling was to ban the importation of ayahuasca for use in Santo Daime. This is very odd because the ruling was based, aside from the report by the AEM technician, on a repealed law from 2004 stipulating that one of the plants containing ayahuasca (specifically B. caapi) was banned. But, since this law was repealed three months after

A Defense Expert Witness on Ayahuasca  225 being issued, it was no longer valid at the moment of the trial, nor does it apply now. It was a trial plagued by judicial errors whose ruling still remains in force today. BL:  Do you have anything to add about that first court experience? Was it exciting? Were you worried about what to wear or how to speak? Did you do it for pleasure, for ideological reasons? Did you feel you were fighting the War on Drugs, or was it something colder, more objective? JC:  A trial is always a stressful experience, and it doesn’t get any easier with time and practice. It forms part of my work for the ICEERS program called the ADF (Ayahuasca Defense Fund). Personally, aside from the fact that it’s my job within this program, it is my own way of bringing about a change in drug policies. My reports and interventions, and I firmly believe this, are all undertaken in the most objective way possible. For me, it is an exciting experience to go to trial, but not entirely in a positive sense of the word. It causes me stress, though I also like it. In the first trials I attended, Jordi Riba, J. M. Fábregas, and myself would go; later, it depended on the lawyer and other things whether or not to go alone. The truth is that going with colleagues always makes you feel more secure. Jordi is always a reassuring presence, and with Fábregas, you also have a fun time before entering the [court] room. Reassurance and laughter combine well to settle the nerves. Dr. Constanza Sanchez, coordinator of the ADF, and myself usually go now and, among our achievements, along with the work of the lawyers and witnesses, of course, is to have successfully paralyzed a court trial for possession of mambe [toasted coca leaf] and made the prosecutor withdraw the charges. They asked for four years in prison for two kilos of mambe, a complete absurdity. BL:  Do you approach it theatrically? Do you see it as a rite? How do you see the encounter, the scene of the trial? Is it like in a movie, or something much simpler? JC: No, it’s like a rite and a performance. At first, it felt like the day I defended my doctoral thesis; now, less so. In a way, they are judging your knowledge, with the difference that in a trial, at least in criminal trials, your testimony matters in the judge’s final ruling, which may imply years in prison. They are similar in that, in a trial, you are also defending an academic thesis, a thesis based on the evidence gathered in your own research and on the evidence assembled by other colleagues. Equally, it is a full-fledged ritual in which, moreover, the actions of the judge and the prosecutor are completely arbitrary, since they are based on a topic on which they know nothing or not sufficiently informed, even at a legal level. For example, ayahuasca is not controlled by conventions, no matter how much DMT may be in it. So, possession of ayahuasca, even in large quantities, is not a crime, at least in Spain. Judges usually want to understand and know more, while prosecutors look for holes in the arguments.

226  Beatriz Caiuby Labate BL: 

It’s like a doctoral dissertation, but much more realistic, because the dissertation environment is controlled. It’s fairly predictable, and nobody will be significantly opposed to it, since various selection processes and dialogs have already taken place before reaching that moment. A trial, though, is like a test, but completely open, meaning that each person involved can be highly unpredictable, with minimal cordiality and a very large spectrum of possible responses, something like that? JC: Yes, because in a doctoral dissertation, various academic rules apply. True, you have passed some filters. The rules of the game, and the form of representation, are clearer. You know that nobody is going to treat you badly and you cannot treat anyone else badly. In a trial, the judge and prosecutor can do whatever they want with you without having to submit to any kind of authority. Over time, though, I’ve been devising my own tricks, which I can tell you about if you wish. I remember a very hard trial in a Mediterranean town in which I was defending a member of an ayahuasca church for whom they had asked for I don’t know how many years in prison after being arrested at the airport with ayahuasca. It is the only time, in a trial, where I have realized the power that judges possess to bypass any basic norm of civic behavior and demonstrate that they are demigods; that, within the courtroom, they can do whatever they please with nobody to control them. It was endlessly abusive treatment from the moment I went through the door. The judge asked me: “Who are you and what are you doing here?” And I just said, “my name is José Carlos Bouso and I’m here because they called me as an expert.” The conversation went something like this: “and who are you to say that you are an expert on this topic?” So I would explain: “I’ve been doing research on ayahuasca for more than ten years.” “Fine, fine, hurry up and finish because we haven’t got all day.” The treatment was... well, not just me, but all the witnesses were treated in humiliating fashion. It’s good when trials are recorded and made public. In this case, though, it was clear that the judge had circumvented all the rules, even preventing the lawyer from proceeding with the testimonies, both his questions to myself and those to the prosecution expert. But, fine, that was palpable evidence of how anything can happen inside the courtroom and the judge can do whatever he wants. If he wants to tell you to shut up, he tells you to shut up, and if he wants to shut up the lawyer, he tells the lawyer to shut up, and not always politely. He even talked on the phone while we were testifying. It should be said, though, that the vast majority of the time it hasn’t been like that and both the judges and the prosecutors, male and female, have been very respectful. BL:  But I didn’t understand; in this case, the judge acquitted the defendant? JC:  In the end, he acquitted him, yes. BL:  So all this theater was a bit of a façade? JC:  Yes, probably. This was in a Mediterranean town in spring time. The trials would end up delayed. We would enter at 2:30, and it seemed to

A Defense Expert Witness on Ayahuasca  227 me that the judge was keen to get home to eat; he wanted to end the trial as quickly as possible and, since there were many witnesses (there were the experts, one via videoconference, one for the National Institute of Toxicology, and myself), the argument seemed to convince him in the end: The argument that ayahuasca is not subject to international control, maybe. I don’t know the reasons, but a trial that would normally have lasted an hour or so was settled in 10 or 15 minutes, with eventual acquittal. BL:  You were going to say that you have developed a few tricks, what are they? JC:  To be precise, rather than tricks, they are more like lessons. For me, every trial has been a fascinating learning experience; both the trials where you are treated well, which, like I said, have been the majority, and the exceptions where they treat you somewhat less well. There is one trial of which we are very proud, that of the La Maloka association, in which the judge produced a fascinating verdict based on the interventions of the experts. Doctors Riba and Fábregas were also there. Our strategy was to work with the lawyers beforehand. Aside from preparing the questions that they would ask me and writing the expert report, we worked on questions the prosecutors might ask and how to respond. We already have a good database of questions and answers. We always try to subpoena the expert from the prosecutor’s office, in other words, the expert from the National Institute of Toxicology (INT) who issued the report on the analysis of ayahuasca. In the La Maloka trial, for example, when the judge asked us what ayahuasca was, we explained that ayahuasca is a decoction of Banisteriopsis caapi, a vine that grows in the Amazon rainforest, but the prosecution expert from the National Institute of Toxicology had said that it was a decoction of Psychotria viridis, confusing Banisteriopsis caapi with Psychotria viridis. He also made some technical mistakes and there was a moment when, on hearing me speak and then hearing Jordi speak, he said that he wasn’t really an expert on ayahuasca: We were the ayahuasca experts and the questions that the court had to ask concerning ayahuasca should be directed to us, not him. He was only there to testify about chemical analyses, not about botanical or toxicity issues. Our strategy, therefore, is to subpoena the expert from the National Institute of Toxicology so that we avoid what happened at the Daime administrative trial, where there had been only one report without the person who had written it being present; thus, the report could not be refuted. But if there is a report with the person present it can be refuted, and since, in criminal trials, the defense lawyer has the reports of the prosecution, the National Institute of Toxicology, and our own, we can prepare the defense so that the technical errors contained in the public prosecutor’s report or the administration’s report can be refuted. Finally, at all the recent trials in which we were involved, we have asked for the [court] recordings.

228  Beatriz Caiuby Labate This means that, should a technical error be made that later appears to be reflected in the judge’s sentence, the sentence can be appealed. This also helps us to prepare for future trials and [the recordings] can be used in the future to train other expert witnesses. I have to remark that I try to offer my testimony exclusively based on evidence, and with all the objectivity that someone can have. I am not defending anybody, nor ayahuascal I am just offering my testimony as a scientist. BL:  I didn’t understand your point very well, what is the trick per se? JC:  The trick isn’t a trick as such; as I said, it’s more of a strategy. I didn’t really use the correct word earlier. The idea is that the lawyer always asks for the presence of a technician from the National Institute of Toxicology. Why? Because judges pay more attention to state prosecution experts than to defense’s experts. As the experts for the defendant, their reports are seen as biased. The presence of state’s experts allows us to refute their technical errors in front of the court. BL:  What are the main arguments to have emerged in the ayahuasca cases in which you have participated? JC:  This is very particular to Spain because here, a minimum dose exists for a drug to be considered toxic, according to which the dangerousness of the substance is marked, and also a minimum amount for possession, under which the amount is considered to be for one’s own consumption and over which it is considered to be intended for trafficking. Consumption by oneself is not prosecuted, nor is it considered trafficking. Something we are repeatedly asked is whether there is a psychoactive dose: What is the psychoactive dose of ayahuasca? This is a classic question usually asked by prosecutors. You also need to know a bit of legal language, because legislation, that is, the mentality of a judge or prosecutor, equates psychoactive doses with toxic doses. This is something that I realized during one trial. The first time I was asked whether ayahuasca has a minimum psychoactive dose, I answered yes, obviously. After my answer he said: “Fine, no more questions.” During the final ritual, when the prosecutor presents his arguments for conviction and the defense lawyer presents his arguments for acquittal, the prosecutor argued that a conviction was necessary, among other reasons, because “we know furthermore that the doses present in this ayahuasca were toxic doses”—the minimum doses were toxic—and I was puzzled; I said to myself, “of course, you cannot talk anymore, what do you mean toxic doses? I didn’t say they were toxic, I said they were psychoactive doses and psychoactivity has nothing to do with toxicity.” This is something that, since I left that court, whenever they ask me this question, I try to explain that actually the psychoactive dose is one thing, but psychoactivity is not the same as toxicity. I then embark on a whole line of argument, pharmacologically differentiating the minimum psychoactive dose from the toxic dose, which, under the Spanish legal system, are equivalent concepts. So, I explain that, in a scientific

A Defense Expert Witness on Ayahuasca  229 and pharmacological language, they are different concepts and that the difference between the minimum psychoactive dose and the toxic dose is what is known as a safety margin. In the case of ayahuasca, this margin is extremely broad; more than for any medically prescribed psychopharmaceutical. Sometimes this type of detail is only learned with practice, by trial and error. That’s why it’s so important to prepare with the lawyers before the trials, to familiarize oneself with the legal language. And that’s why it’s so important to compile a database of questions. Not because you want to trick the court, which, indeed, is a crime, but to ensure that knowledge is correctly translated. BL:  Can you go into more detail on how you explain what the psychoactive dose is and whether there is a toxic dose for ayahuasca? JC:  We know from laboratory studies that 0.5 mg doses of DMT per kilogram of weight already produce an effect. Since we have the analyses of the DMT and harmaline detected in the various samples, we know what the concentration of the confiscated samples is. Before, they could not be detected; but now, they can. If they ask you, you know that so many milliliters of ayahuasca is already a psychoactive dose, but that psychoactivity does not mean that it produces toxicity. Psychoactivity means that it has an effect at the level of the nervous system and produces psychological effects, but that isn’t accompanied by any physiological damage and such is true for all drugs. For all medications, a difference exists between the active dose, the bioactive dose, and the toxic dose. Doctors give us medications that are bioactive, but this does not mean that they cause harm. On the contrary, they cure us. We know that taking a gram of paracetamol when you have a headache will take away the pain without causing you liver damage, but if you take 20 grams it can kill you. Hence, 1 gram of paracetamol is obviously an active dose, but, equally obviously, it is not toxic, unless you have preexisting liver damage, of course. I don’t know, it’s such basic knowledge that anyone who has reflected for a moment on the question knows it. Well, it turns out that under Spanish legislation, this difference is nonexistent. It’s surreal, but that’s how it is. So, I usually give examples of drugs that are widely used and try to avoid comparisons with other drugs, such as heroin or alcohol. I usually look for drugs used in everyday medical practice, like paracetamol or ibuprofen, commonly used drugs that everyone knows, including members of the court, in order to explain the difference. BL:  And why do you avoid comparisons with illegal drugs? JC:  In order to move as far as possible from the image of ayahuasca as a drug. If you start to compare it with alcohol, for example, you continue to sustain the discourse that ayahuasca is a drug, and moreover that it is toxic, because alcohol’s image is strongly associated with toxicity. I don’t use benzodiazepines as examples either, since they can lead to abuse. I try to keep the concepts of toxicity, drugs and abuse out of the

230  Beatriz Caiuby Labate court’s mind. There are strong data that support that ayahuasca is not a drug of abuse, so I don’t see the reason to use alcohol as a comparison. That’s why I usually provide examples of pharmaceutical drugs that everyone takes from time-to-time to treat common ailments. If I venture into the field of psychoactivity, I talk about antidepressants, which have no potential for abuse and which serve to treat mental problems, not to generate them. So, our strategy is always to give examples of drugs that work to improve health, with low toxicity and without the potential for abuse, since they are more related with what ayahuasca actually does. BL:  Excellent. That’s great José Carlos, very interesting. JC:  It doesn’t always work. Sometimes the prosecutor wants to push ayahuasca into the field of “drugs,” especially in relation to psychoactivity. The dialectical exchange is sometimes difficult; they always have more experience than you and are in a situation of power, and you have to go prepared for it. As I say, it is not a question of arguing that ayahuasca is harmless. It is a question of remaining objective and trying to explain that legal, popular, and toxicological languages are not always interchangeable and a degree of translation is needed. BL:  And what are the other major issues that always appear? JC:  Undoubtedly, the key issue and the most difficult issue is the question of hallucinations. This is the big issue, whether [ayahuasca] produces hallucinations and whether it can produce psychiatric disorders. This is the trickiest subject because if it produces hallucinations it is immediately equated with mental illness. I usually respond that we are all accustomed to experiencing hallucinations every night when we go to sleep. BL:  You speak of dreams as hallucinations? JC: I speak of dreams as hallucinations and say that the effects of ayahuasca are like a lucid dream in which the person is awake and has control over it. Sometimes I’m more successful than others, depending on how the explanation proceeds on the day. It’s a slippery terrain. I try to explain that a hallucination, from the viewpoint of clinical psychology, does not necessarily imply pathology and that that is precisely what our studies demonstrate where we evaluated ayahuasca users and found no evidence of psychiatric disorders. We also showed that there are other phenomena in which hallucinations can be produced, as in the case of meditation. And that the word “hallucination” has a different meaning in popular language from its meaning in clinical psychology. I provide the explanations of which I’m capable or that the court permits me to make. If they ask me, I never deny that ayahuasca induces altered states of consciousness. I simply try to explain that altered states of consciousness are a common experience in all individuals, the most familiar of which are dreams, and that there are even accepted psychological techniques, like hypnosis, in which altered states are used.

A Defense Expert Witness on Ayahuasca  231 The basic idea is to de-pathologize hallucinations, without getting into the topic of whether ayahuasca produces them or not. I emphasize that I don’t deny the fact because it is a clear effect of ayahuasca and denying an evident effect is not only a crime, it undermines the credibility of the testimony. And credibility is the basis of any expert’s testimony. BL: Comparison with dreams follows from the previous idea of drawing analogies that are less harmful, that are less uncomfortable in people’s minds, something like that? JC:  Yes, the idea is to educate a little bit about the term “hallucination” along the lines sketched in the previous answer: The word hallucination does not have the same meaning in everyday language as in psychiatry. Jurists know that there are technical legal terms whose meaning is very different in their legal language compared to everyday speech. I explain that the same applies to psychology and that hallucinations, from a clinical point of view, do not necessarily have a pejorative connotation. Throughout history, and in many cultures, hallucinations have not been pathological phenomena but cognitive processes used for the wellbeing of the individual and the community, and it’s this kind of hallucination that ayahuasca usually produces. BL:  Ah, okay. It’s something more generic then? JC:  Of course. The same happens in the area of clinical psychology. There are concepts or terms that, from a clinical point of view, are not considered equal. For instance, hallucinations in everyday language always have a pejorative connotation absent in the clinical world and increasingly less so, because cognitive processes are understood not as a question of all or nothing, but rather as a continuous phenomenon. The prime example are dreams, but in stress situations, too, people may hear voices, or have daydreams when they are very tired. It isn’t necessarily something associated with a pathological process or something that will develop into a pathology. BL:  And the issue of psychotic outbreaks and psychiatric problems, is this debated? JC: Of course. To begin with, I never talk about hallucinogenic effects, I talk about psychoactive effects. I try to introduce as few technical terms as possible because every time you use a technical term, you can generate confusion. If someone talks about hallucinations, I’m not the one who brings up the subject. If the prosecutor brings up the subject, I give my explanation, I stick to the question of psychoactive effects and don’t go any further. In fact, the issue of whether [ayahuasca] produces hallucinations does not always come up. Sometimes it simply passes by unremarked. Just like the subject of psychotic outbreaks, it doesn’t always crop up; sometimes, it’s not mentioned, though sometimes it appears. When it is brought up, my usual answer is that existing studies conclude that the psychopathological status of the users in our studies is at least as good as the control subjects, and that rates of psychiatric

232  Beatriz Caiuby Labate disorders among people who take ayahuasca are actually below those of the general population. And if they pursue the topic, I then contextualize the adverse effects. BL:  What is the debate concerning the negative effects? JC:  The reports of the prosecution experts always highlight the fact that ayahuasca produces vomiting and diarrhea as side effects, because it is an intoxication. Here the explanation is the most classic: People usually experience the vomiting as something pleasant and in no instance is it like food or toxic poisoning. It cannot be compared to food poisoning because when you have food poisoning you feel debilitated, you need to rest and cannot do anything. Here, by contrast, a kind of cleansing of the body is involved and a symbolic meaning is attached to the vomiting. The reality is that this intoxication isn’t like that because people can subsequently dance, as in the case of Santo Daime, or they can continue with the ceremony and do not feel sick, quite the opposite. BL:  So, in this case, do you adopt the same strategy of avoiding a comparison with food poisoning just as you do with alcohol intoxication? JC:  Yes, with food poisoning, yes. And then, I explain that ayahuasca is probably so frequently used in the rainforest because it serves to clear out intestinal parasites and this produces more medical benefits than harm. BL:  On one hand, you compare ayahuasca with legal medicines and on the other, with food. So it would appear to be on the interface between medicine, drugs, and food; a meeting of various paradigms. What else do toxicologists usually say? JC:  They don’t understand the active mechanism very well—and it’s fine that they don’t—whereby you need MAOIs [monoamine oxidase inhibitors] for the DMT to produce effects. I say that it’s okay not to fully understand it because they tend to dwell on the small percentage of DMT in the decoctions. That’s fine, because eventually, in many cases, it ends up being determined that the quantities involved are very low, around 0.05%, when the courts are used to dealing with substances in which the purities can range from 30, 40, 50 to 90%. So, of course, a substance that has a 0.05% purity, in the mind of a judge who is deciding whether to send someone to jail or not, generates a conflict. BL:  Now you are specifically discussing the problem of concentrations? JC:  Yes, because it is one of the things that usually emerges in the trials. BL:  Can you explain a little more about what they say and how you respond? JC:  This happens when they try to understand the effect of ayahuasca. It is not always easy to explain that MAOI blocks endogenous MAO. I can cite the example of a judge or a prosecutor who says to me: “So then, would this injection produce an effect?” This is the best question they can ask you because nobody would inject ayahuasca. Medications that come in injectable form have to comply with aseptic conditions,

A Defense Expert Witness on Ayahuasca  233 otherwise there is more risk of dying from an infection than from the substance that you’re introducing into the organism. It makes no sense for anyone to inject ayahuasca. How much ayahuasca does someone need to drink to become poisoned? I also tell them that compounds containing ayahuasca produce so few dangerous effects at a physiological level that the person would die from intoxication from the excess liquid sooner than from any poisoning produced by the active ingredients. BL:  But this issue of the concentrations is itself something you always hear from ayahuasca folks. As the percentage of DMT is very low, the logic of the users is to say that there is little DMT. JC:  Yes, but in many cases, this logic of the users also ends up being the logic of the judges: They consider the fact that there is little DMT, which is the reality, and very often the basis of the judgment, regardless of the effects that this DMT may actually produce. BL:  What would an opposite explanation be? JC:  To say that although the concentrations are low, the combination with the harmalines means that the dose has sufficient effects, and here you could cite examples, if you wished to be an expert witness for the prosecution. Ultimately, it is not a question of a higher or lower concentrations; it is a question of the potency of the concentration involved. Depending on the case, either the quantity or the effect is judged. Each thing requires its own specific explanation. BL:  But the fact is that a low concentration creates a favorable image for someone not very well informed, whether a judge or a user, who perceives it as something positive. In reality, though, from a scientific point of view, this is incorrect because the concentration is not low, it is a sufficient or necessary amount. JC:  Sure, it’s not a question of high or low, it’s a question of what is there to produce the effect. From the user’s point of view too, it is somewhat ingenuous to think that a low concentration is involved. Were that the case, they would recognize that they were being duped every time they took ayahuasca. They were being tricked by not being given a sufficient dose. This is somewhat paradoxical and is repeated by many of the accused, who come to tell you: “No, the thing is, the concentration of my ayahuasca was such-and-such, it was a very low concentration,” and you reply: “What are you trying to tell me? That the ayahuasca that you use has no effect?” But well, this is what you tell them so that you don’t create any false ideas about what you’re about. Anyway, from a toxicological point of view, even a high dose is a dose with a low risk of physical harm. BL:  You have not mentioned the issue of whether ayahuasca is DMT. This is a topic that comes up a lot, right? JC:  Yes, this is something that is mentioned a lot. We constantly insist that, both from a pharmacological point of view, and from all the cultural

234  Beatriz Caiuby Labate aspects that surround them, ayahuasca and DMT have nothing to do with each other. In various aspects they are unrelated. BL: And there do you discuss the issue that ayahuasca is not controlled by the INCB or do you get into a more technical discussion about the different forms of administration, the different effects? How do you proceed? JC: I usually begin with the pharmacological aspects and the psychological effects produced by DMT. First, it needs to be prepared in order to extract the DMT from its plant source, and this is what leads to it being banned; but, contained within its plant source and without being prepared, it is not controlled by the conventions. Preparing and extracting it from its plant source removes many of the properties found in its botanical state. It makes it much more potent, with clearer effects, but even so, the clinical studies conducted with DMT have found no negative effects. When DMT was banned, the decision was not based on any scientific study. All the scientific studies indicate that it does not cause abuse and, indeed, the proof is that in police reports of seizures made each year, DMT never appears. If that’s the case of DMT, then for ayahuasca, which has more suave, milder effects—since it is accompanied by other compounds within the plant that modulate its effect—they are simply not comparable. Even so, I still argue that DMT is not dangerous enough to be on the lists either. BL:  What do you think are the general stances of the judges and promoters in the ayahuasca cases? Are they based on prejudice and a lack of knowledge or is there a genuine interest to protect public health? JC:  I think the surprising thing is that judges who carry cases of drug trafficking or crimes against public health are used to dealing with dangerous or delinquent people. In the case of large quantities, we are talking about powerful drug dealers, and in the case of those who deal or sell on the street, people who live on the margins of society or on the margins of the law always, with a disorderly life and everything. Here, they think they will find similar cases and I think the surprise comes when they meet perfectly normal and ordinary people, integrated, who come to court with their group of colleagues and pals, who demonstrate that they are good people. Sometimes they may seem a little eccentric, like when all the Daimistas turn up and start singing at the court door, and experts who come to say that this isn’t so bad and then you add the fact that the INCB reports say that it is not controlled and furthermore the experts from the National Institute of Toxicology recognize that the defense experts know more about the subject... Well, it’s a conglomerate, a combination of all these factors, which I think has ultimately meant that all the judgments so far have been acquittals. BL:  In general, do you believe that it is a lack of knowledge, rather than prejudice or a moralistic or prohibitionist view? Is it more a question of ignorance and lacking prior references?

A Defense Expert Witness on Ayahuasca  235 JC:  Among

those cases in which I have been involved, I think that the only one where there was clear prejudice was in the Santo Daime administrative trial, where the judge made it very clear that he was not going to permit importation. In some cases, there has been a clear lack of interest, like the trial I told you about earlier in a Mediterranean town. In other cases, a lot of interest in learning more has been shown by both judges and prosecutors. That includes the trial to which Constance and I went involving mambe [coca leaf], where the prosecutor withdrew the charges. That was something unusual, we had never seen it before. I think that, above all, it is ignorance and a stark contrast between the reality of the trials in which drug traffickers or common criminals are judged, and the trials in which they judge ayahuasca users who have nothing in common with the former, nor the people who accompany them, and all of this, I think, has a pronounced influence. BL:  Is there a case that is your favorite or a favorite moment in your own performance, or some paradigmatic case that you liked the most? JC:  One case that made history was the Chile trial, and another was La Maloka, in which Jordi, Fábregas, and I were involved. It made history because the judge’s sentence was very well argued; she had taken a long time and gathered all the arguments of the experts and the defense lawyer, too. As a case of personal satisfaction, the Alicante trial of a woman who I had met at a seminar years before. She had been a student, a very normal person, it was obvious that she was not committing any crime. There have been cases in which we have defended people whom I have not felt entirely comfortable defending, but that isn’t typical. In most cases, you only see the defendant a short while before the trial; but, in the ADF, there are ethical criteria that need to be met in order for us to support them in trials; you don’t defend just anyone who asks for it. BL:  What is the case of personal satisfaction and why? JC: The case of this young woman, because she had been suffering tremendously for two years, living in anguish. That day, I felt especially at ease in court, my answers flowed and my speech went well, and the outcome was positive. Due to my feelings and satisfaction with the performance—as you call it—it was, above all, special because questions arose... But I don’t know, it’s a feeling of having performed well that day and thinking that I had done something good not just for a particular person, but also for the system. BL:  And what was the most out-of-context question, bizarre or annoying, that a judge or prosecutor has asked you? JC: First, was that judge from the trial in a Mediterranean town: “Who are you and what are you doing here?” As if I had sneaked into the trial, and then the prosecutor’s question: “What would happen if you injected ayahuasca? Given that DMT is not activated orally.” That was another grotesque question.

236  Beatriz Caiuby Labate BL:  To

conclude, can you comment on the relation between the media and these cases? JC: The only time we have boasted of having won a trial was with the mambe case. It deserved to be made public. We are clear about ayahuasca not being controlled, but coca leaf is, and people coming from countries where powdered coca leaf is traditional find themselves at risk of going to jail for carrying a few kilos of coca leaves with them. The paradox is that, in Spain, the limit separating personal possession from trafficking for cocaine is 9 grams and, in many cases, the amount of cocaine contained in the coca leaf that is confiscated is well below that amount. BL:  And why don’t you do the same with the other cases? JC:  Because we are learning little by little. It’s like I said earlier, every trial is a learning process. Before, we didn’t give it much importance; I didn’t give it any importance. In fact, only the trials that I have gone to since the ADF began are recorded. Before, it was just part of my job; they call you, you go to a trial, you testify, and you leave. We’d never given it much importance. We did so with the mambe case because a regional newspaper picked up the story. I guess we are learning little by little that we need to learn how to publicize these small victories. BL:  What’s your impression of what is happening with ayahuasca in Europe legally speaking? Where do you think we are heading? JC:  I think we’re heading in a bad direction. The upsurge in ayahuasca ceremonies is huge throughout Europe and it increasingly appears in the media. I think there has been a return to persecutions in Spain; right now [at the time of the interview], there are two people in prison, after arrests had ceased for a couple of years. This has to do with reports that have appeared in the mainstream media on television. Depending on the government in office, I believe that one day, without further violence or police persecution, ayahuasca will be added to the list of prohibited drugs, and that will be it. My outlook on the matter is quite pessimistic. BL:  Can you give us an idea of how many arrests are made in Spain? Why are there so many arrests in Spain compared to other countries in the world? We don’t know the—exact figure and, moreover, we don’t receive anywhere near all the cases. Although we are increasingly well known, we probably still only know about a small portion of the arrests. But we have begun receiving more cases again over the last couple of years. In relation to why there are more arrests in Spain, that’s because Spain is one of the European countries with the most “tradition” in ayahuasca use. The first country outside America where ayahuasca arrived was Spain. It may also be the case that there are more arrests in Spain because the country is a gateway for other drugs, such as cocaine, and there are more stringent controls. It is also possible that we know more

A Defense Expert Witness on Ayahuasca  237 cases in Spain simply because we are based here, although I believe that there are indeed more arrests for the reasons mentioned. BL:  And what legal precautions would you recommend to people who perform ayahuasca ceremonies? JC:  In legal terms, discretion and good practice. They should be aware that every time someone arrives with ayahuasca, or every time someone receives a package with ayahuasca, it may cause them problems. I haven’t many tips to give.1 BL:  Is there anything that we haven’t covered in the interview that you think is important about your work as an expert in ayahuasca defense cases? JC: With our experience, it would be good to undertake some kind of training for experts. Also, we could meet with technicians from the National Institute of Toxicology so that, when they are cited as experts, their knowledge about ayahuasca is based on what is known scientifically, and the reports become increasingly better documented. It remains frustrating that a judge gives more credibility to a badly produced report than a well-produced report just because one comes from the prosecution and the other from the defense. BL:  Is there any plan to provide training for lawyers? JC:  I think it would be good. The fact is that not all lawyers like to bring experts. The lawyers are very jealous. In Spain, we work with two or three lawyers, no more. They have their own ways of being and do not like you to give them advice. It’s not always easy working with lawyers. I’m not talking about the lawyers with whom we usually work, our work together is close and excellent. Outside of here, there are many lawyers who are highly resistant to any kind of recommendation. The cases we have received here in Spain have involved lawyers who work with us because we are colleagues, we know each other, but it is not easy for a lawyer to come to us or the ADF for help. They believe they are more than capable of sorting it out for themselves. I can understand that there is a kind of professional zeal, but well, I don’t know, there have been cases in which lawyers didn’t know what the INCB had said in its reports, lawyers who had no idea about the legality of ayahuasca. That is also a reality. It is not always easy to work with some lawyers. BL:  Okay, great. JC:  Thanks Bia.

Note 1 Note of the Editor: For more information, also consult: http://chacruna.net/ ayahuasca-legal-harm-reduction/.

Afterword A Call for Public Support against the Current Demonization of Ayahuasca Practices in Spain1 Beatriz Caiuby Labate, Henrique Fernandes Antunes, Glauber Loures de Assis and Clancy Cavnar It is undeniable that we are living a psychedelic renaissance with a ­g rowing interest in the use of psychoactive plants, not only in Indigenous, ­religious, or neoshamanic contexts, but also in their therapeutic use (Labate & Cavnar, 2021a). This renaissance is associated, among other factors, with the world ayahuasca diaspora (Labate & Jungaberle, 2011; Labate et al., 2017; Labate & Cavnar, 2018), the global expansion of ayahuasca religions, and the insertion of Indigenous groups in urban ayahuasca circuits in South America and beyond. However, an increasing backlash has also emerged. Its presence can be seen in the repercussions of the case of a YouTuber who infiltrated a Santo Daime group in Spain for nine months. During this period, he used a hidden camera to film private ceremonies without authorization. This YouTuber edited these recordings and published a very sensationalist and self-promotional video that garnered almost 600,000 views. He also filed a complaint for attempted kidnapping after being discovered by one of the members. Since then, he has been invited onto several TV shows, where he accused the Santo Daime of being a dangerous sect that brainwashes people and provides a number of illicit drugs without any health or safety precautions. In addition to the repercussion of the case, the public perception of ayahuasca got progressively worse, as raids and arrests of members of two neoshamanic groups took place shortly after. These circumstances have reignited the debate about the use of the beverage in the country, led by the sensationalist media coverage that frequently ignores the scientific data readily available. The allegations are the same: Ayahuasca groups are sects that use dangerous drugs to manipulate their adepts (or “targets”), commonly described as fragile and gullible people, for financial gain. The emergence of ayahuasca as a public health and safety issue, however, is not limited to the case of Spain. In March 2022, the Italian Ministry of Health issued a decree banning ayahuasca and its component plants, as well as its active constituents (Berazaluce, 2022a, 2022b, 2022c). The Italian government’s decision took Santo Daime members in

240  Beatriz Caiuby Labate et al. the country by surprise, forcing them to hold their ceremonies drinking water instead of ayahuasca as a form of protest, as the União do Vegetal did in the United States during their court case. Italy followed a similar approach to France. In 2005—just three months after the acquittal of a Santo Daime group in Paris who were accused of consuming and trafficking illicit substances—the French government, through the Ministry of Health, banned ayahuasca and the plants used in its making. In 2019, the leader of the same Santo Daime group acquitted in 2005 was arrested again. He was released on bail after being detained for four days. He is currently awaiting his trial, and he could be sentenced to several years in prison. In the French case, the ban of ayahuasca was assisted by the contribution of the MIVILUDES, the governmental Inter-Ministerial Mission for Monitoring and Combating Cultic Deviances (dérives sectaires), whose representative gave a presentation on ayahuasca during the meeting of The Commission of Narcotic Drugs that established the prohibition of ayahuasca in France (Bourgogne, 2011; Novaes & Moro, in this volume). This unique partnership shows that ayahuasca is perceived and portrayed by public authorities not only as a health risk but as a dangerous social movement with sectarian tendencies. They suspect not only ayahuasca the drink, but the practices of ayahuasca groups themselves, without presenting any substantial evidence to support their claims. We cannot fail to mention the prohibition of ayahuasca by the Dutch courts in 2018, after almost two decades of the decision that allowed the religious use of ayahuasca by a Santo Daime church in the country (ICEERS, 2018). Amid this scenario of arrests, prosecutions, sensationalist reports, and the dissemination of fear, distrust, and misinformation, it is necessary to approach the subject in a judicious way, leaving aside prejudices and preconceptions. It is crucial in a moment like this to analyze the accumulated knowledge on the subject of the religious use of ayahuasca (Labate et al., 2008), as well as to understand the contexts in which the regulation of the brew has occurred successfully, creating public policy models that can be studied and adopted in other sociocultural contexts. Despite the growing interest in ayahuasca in recent decades, its ritual use dates back to centuries ago. In fact, the first historical records of ayahuasca in the Amazon region date back to the late seventeenth century (Antunes, 2011). Historically, the Amerindian use of ayahuasca, present in Brazil, Peru, Bolivia, Colombia, Venezuela, and Ecuador, had several uses. Ayahuasca has been used to facilitate communication with spiritual realms and to explore relationships with the fauna and the flora of the environment. Shamans often drank it to diagnose and cure illnesses. It was also used for divinatory purposes. Ayahuasca was vital not only in shamanic practices; it was also a significant part of the sociocultural life of several Indigenous Amazonian ethnic groups (Luna, 1986). The use of ayahuasca has not only been historically important for the Indigenous populations of the Amazon forest; it holds still a crucial role in

Afterword  241 identity and territorial processes, and in the development of organized social movements to preserve the forest and its traditions. This happened not only in Colombia, with the creation of an Indigenous association focused on the use of yagé, but also in Brazil, where a number of Indigenous ethnic groups established a political alliance to strengthen their cause regarding the Indigenous uses of ayahuasca. Since 2017, these groups have organized several Indigenous conferences on the subject “The Representatives of the Indigenous Peoples of the Juruá Valley” (2020a, 2020b, 2020c, 2022). In countries like Colombia and Peru, besides the Indigenous use of ayahuasca, there is also a form of folk medicine based on psychoactive plants, chants, and diets. These folk healers are called vegetalistas (Dobkin de Rios, 1972; Luna, 1986). Their practice is mainly found among rural populations who retained elements of ancient Indigenous knowledge about plants while absorbing some influences from European esotericism and urban environments. Particularly in Brazil, there was the unique development of a religious phenomenon centered on non-Indigenous populations who consumed ayahuasca, known as Santo Daime, Barquinha, and União do Vegetal. These religious groups, founded between the 1930s and 1960s, have reinterpreted local traditions with a strong influence of Christianity, incorporating elements of Amazonian shamanism, folk Catholicism, African-Brazilian traditions, and Kardecist spiritism, among other traditions (Labate, 2004). These groups have expanded throughout the early 1980s to some of Brazil’s major cities. In the early 1990s, these groups expanded to Europe and North America, mainly because of the influence of foreigners who discovered ayahuasca in Brazil and wanted to establish branches in their home countries. In addition to ayahuasca religions, anthropology has been noting, in recent decades, the emergence of new modalities of ayahuasca consumption in urban centers (Labate, 2004). Among the new uses, there is the use of ayahuasca in meditation sessions, in the treatment of drug addiction, in psychotherapy sessions, for artistic inspiration, and in group therapies. It is also possible to point out the intersection of ayahuasca with Afro-Brazilian religions and neoshamanism. The reinvention of the use of ayahuasca and the emergence of neoayahuasquero groups is part of the social and cultural process that unfolded during the expansion of ayahuasca religions. These elements circulated, mingling with the vegetalistas and Indigenous people in the large cities of South America where Amazonian traditions met local urban practices in a process that has led to alliances, exchanges, and new forms of ayahuasca use. Although ayahuasca use by non-Indigenous people is a relatively new phenomenon, its development is associated with the emergence of a certain type of religiosity characteristic of urban centers, creating new networks, such as the neo-esoteric and therapeutic networks, that have gained their own autonomy within the New Age universe. On the other hand, many of these groups present an affiliation or some kind of connection to traditional

242  Beatriz Caiuby Labate et al. ayahuasca religions, or to Indigenous groups, forming an intersection between urban networks and the traditional Amazonian uses of ayahuasca. In Brazil, the Federal Council on Narcotic Drugs (CONFEN) presented a report that found no evidence that the religious use of ayahuasca posed health risks or social harms (CONFEN, 1987). In the following decades, the public policies on ayahuasca moved progressively toward the recognition of the religious use of ayahuasca as a religious and cultural phenomenon protected by the Brazilian Constitution (MacRae, 2014; Antunes, 2019). In an historical decision involving scholars, scientists, jurists, public authorities, and representatives of the ayahuasca religions, the National Council on Drug Policy recognized the religious freedom of the use of ayahuasca in Brazil (CONAD, 2006, 2010). In the 2000s, the initiation of a process to recognize the religious use of ayahuasca as an “intangible heritage” of Brazilian culture, established by the Institute for National Historical and Artistic Heritage (IPHAN), marked an important change in Brazil. Ayahuasca would no longer be an object of drug policies; instead, it entered the realm of affirmative policies, attesting to recognition by the Brazilian government of the historical and cultural value of the religious use of ayahuasca in Brazil (Labate, 2010; Antunes, 2019; Labate & Assis, in this volume). We must also highlight Peru’s recognition of ayahuasca as national cultural heritage. The heritage safeguarding in the Peruvian case aims to protect traditional and Indigenous uses of ayahuasca in the country. In Colombia, although there is no formal regulation of ayahuasca, various attempts at self-regulation have been made by Indigenous peoples, as well as administrative rulings legitimizing the use of yagé. Traditional Indigenous medicine and the Indigenous use of yagé became part of the country’s cultural heritage policy directives in 2009 (Labate & Assis, in this volume). There was also the creation of the Union of Indigenous Yagé Medics of the Colombian Amazon (UMIYAC). The Union developed The Code of Ethics for the Practice of Indigenous Medicine in the Amazon Piedmont of Colombia (UMIYAC, 2000), establishing a number of guidelines to prevent the commodification of traditional forms of yagé use (Caicedo Fernández, in this volume). This self-regulatory measure was not an isolated case; on the contrary, it was preceded by the Declaration of Principles of the Religious Groups who Consume the Tea Hoasca, produced by ayahuasca groups in conversation with Brazilian authorities in the early nineties (Núcleo de Estudos Interdisciplinares sobre Psicoativos [NEIP], 2017). In Spain, the first activist group created around ayahuasca produced a similar initiative (Plantaforma para la Defensa de la Ayahuasca, 2009). Years later, UMIYAC published the Declaration from the Spiritual Authorities, Representatives, and Indigenous Organizations of the Amazon Region (UMIYAC, 2019). These cases prove not only the cultural and historical value of the use of ayahuasca, but they also demonstrate that it has a central role for a number of Indigenous and religious groups, not only socially and culturally, but also as a contemporary form of political expression.

Afterword  243 Besides the important contributions of Indigenous groups and ayahuasca religions to advance the political agenda for the regulation of ayahuasca, NGOs, research institutes, and a number of scholars have also promoted the responsible use of ayahuasca and demanded its recognition. In that regard, one must highlight the Statement on Ayahuasca (Anderson et al., 2012), the Manual de Recomendaciones para el uso de la Ayahuasca (Gabriell, 2021), the Ayahuasca-Good Practices Guide (ICEERS, 2014), and the Ayahuasca Technical Report 2021 (ICEERS, 2021). The Chacruna Institute for Psychedelic Plant Medicines has also played an important role, not only through the development of The Council for the Protection of Sacred Plants, but also by publishing important guidelines for ayahuasca groups, such as 7 Best Practices for Ayahuasca Legal Harm Reduction, and the Guide to Religious Freedom Restoration Act (RFRA) and Best Practices for Psychedelic Plant Medicine Churches. These initiatives are part of a collective effort to spread awareness about the responsible use of ayahuasca and to bridge the gaps between government, academia, and ayahuasca groups. Besides these innovative examples, there are other important cases regarding the regulation of the religious use of ayahuasca outside South America. In the United States, the União do Vegetal and a branch of Santo Daime won the right to use ayahuasca in a religious context. The Supreme Court established a ruling in 2006 attesting that the federal government could not produce any evidence that the religious use of ayahuasca posed health or safety risks for its users, nor for the country. The Supreme Court, therefore, granted União do Vegetal the right to import and consume ayahuasca. Two years later, a Santo Daime branch in Oregon had a similar victory. Since these rulings, no legal issues have arisen in the country regarding União do Vegetal nor the Santo Daime branch. Sometime after, the Drug Enforcement Administration (DEA) established an application process for groups that want to obtain a legal exemption for the religious use of ayahuasca. Canada has also granted five exemptions allowing groups to practice their religion without legal restrictions (Rochester, 2017). The first two exemptions were granted in 2017 by Health Canada to Santo Daime and União do Vegetal. So far, the majority of exemptions were given to branches of Brazilian ayahuasca religions; ironically, the same groups that are now targeted as dangerous sects in some European countries. These examples highlight that ayahuasca can be successfully regulated, not only in countries where it’s use is part of the cultural practices of traditional populations, but also in very different social, cultural, and economic settings. The cases in South America, and the exemptions granted in the United States and Canada, are proof that compromises can be made; that there are possible ways to successfully regulate the use of ayahuasca, not only protecting the rights of ayahuasca groups and traditional populations, but also creating codes of ethics and guidelines for its responsible use. We should not fail to note that the International Narcotics Control Board (INCB) has declared that ayahuasca is not subject to international

244  Beatriz Caiuby Labate et al. control, an involved discussion that we will not get into here (see Tupper and Labate, 2012). It is also important to note that União do Vegetal contributed directly to the first biomedical research on the use of ayahuasca, the Hoasca Project, in 1993. The project compared the physical and psychological health of several members of União do Vegetal with ten years or more of ayahuasca use and a control group that had never taken ayahuasca. After several tests, the researchers concluded that there was no evidence that the use of ayahuasca in a ceremonial context presented any risks for ayahuasca users. This trailblazing project served as inspiration for a number of research projects that focus on the therapeutic potential of ayahuasca (Labate & Cavnar, 2014, 2021b). Some recent double-blind research has shown that ayahuasca could be useful for treating certain treatment-resistant diagnoses, such as depression, drug addiction, post-traumatic stress disorder, and anxiety (Dos Santos, 2013; Palhano-Fontes, 2019). This collection of examples of successful regulation processes, the scientific data on safety and effectiveness, and the findings of the academic literature on the use of ayahuasca points to the fact that, if done in a controlled environment with the guidance of experienced people, it is a benign practice that poses no harm nor risk to public health and safety. In light of recent events, and the ongoing stigmatization of ayahuasca, we hope that this article can serve as a call for ayahuasca groups, academia, international agencies, and national governments to open up a channel for dialogue and for change. We cannot simply accept the fact that ayahuasca groups are being treated as criminals, having their homes and workplaces raided by the police with machine guns. The recognition and accommodation of minorities needs to part of the political agenda. While raids are being made, there are calls that are not being answered from these groups to start a dialogue with public authorities to establish guidelines for the regulation of the use of ayahuasca. Ayahuasca is not a threat to public health and the ayahuasca religions are not criminal organizations. To treat legitimate faith practices from minorities of the Global South as international traffic of dangerous drugs is a violation of human rights and reveals a complete lack of anthropological sensitivity and a serious Eurocentric prejudice against other cultures. The prohibitionist bias linked to the stigma associated with ayahuasca groups as dangerous sects found in the media and proclaimed by public authorities serves only to obscure and exoticize religious minorities and traditional populations. In fact, the terms “sect” and “cult” are no longer used in the academic literature or by scholars of religion (Introvigne, in this volume). Abandoned by scholars, they have become accusatory and derogatory terms that frequently serve as tools to spread fear and prejudice, and are used to constrain and control religious practices and to attack religious freedom. It is not a surprise, therefore, that these same notions are being used to

Afterword  245 classify ayahuasca groups and to justify repression of ayahuasca use in the alleged name of public order and health. We cannot abide by that. We are here to affirm the legitimacy of well-established cultural and religious practices and to defend the rights of traditional populations, bona fide religious institutions, and social minorities. The regulation of ayahuasca and the recognition of ayahuasca groups are not only desirable accomplishments but necessary ones. To support legal effort in Spain, donate here. We stand in solidarity and urge authorities to respect the religious freedom of ayahuasca drinkers.

Note 1 This work was originally published at https://chacruna.net/a-call-for-publicsupport-against-the-current-demonization-of-ayahuasca-practices-in-spain/.

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246  Beatriz Caiuby Labate et al. Dobkin de Rios, M. (1972). Visionary vine: Hallucinogenic healing in the Peruvian Amazon. Chandler. Dos Santos, R. (2013). Safety and side effects of ayahuasca in humans: An overview focusing on developmental toxicology. Journal of psychoactive drugs, 45(1), 68–78. Federal Council on Narcotic Drugs (CONFEN). (1987). Final report – Working group ayahuasca. Brasília, DF. https://www.bialabate.net/wp-content/uploads/2008/08/Relatorio-Final-GT-Confen-1987.pdf Gabriell, I. (2021, September 4). Un manual gratuito para las buenas practices con Ayahuasca [a free ayahuasca good practices manual]. Chacruna Latinoamerica. https://chacruna-la.org/manual-buenas-practicas-ayahuasca/ International Center for Ethnobotanical Education, Research, and Service (ICEERS). (2014). Ayahuasca: A good-practice guide. https://iceers.org/ Documents_ICEERS_site/Safety&Ethics/Ayahuasca-Good_Practice_Guide_ ICEERS2014.pdf International Center for Ethnobotanical Education, Research, and Service (ICEERS). (2018). Ayahuasca and religious freedom in the Dutch courts: From tolerance to intolerance. https://www.iceers.org/ayahuasca-and-religious-freedom-in-the-dutch-courts-from-tolerance-to-intolerance/. International Center for Ethnobotanical Education, Research, and Service (ICEERS). (2021). Ayahuasca technical report 2021. https://www.iceers.org/ wp-content/uploads/2020/05/Ayahuasca_Technical_Report_ICEERS_2021_ ENG-2.pdf. Introvigne, M. (in this volume). Mystics or criminals: “Cults,” religion and drugs. In B. C. Labate, & C. Cavnar (Eds.), Religious freedom and the global regulation of ayahuasca (pp. 207–221). Routledge. Labate, B. C. (2004). A reinvenção do uso da ayahuasca nos centros urbanos [The reinvention of the use of ayahuasca in urban centers]. Mercado de Letras, FAPESP. Labate, B. C. (2010). As religiões ayahuasqueiras, patrimônio cultural, acre e fronteiras geográficas [The ayahuasca religions, cultural heritage, acre and geographical borders]. PontoUrbe, 7, 1–10. Labate, B. C., & Assis, G. L. (in this volume). A genealogy of the ayahuasca cultural heritage registration process in Brazil. In B. C. Labate & C. Cavnar, C. (Eds.), Religious freedom and the global regulation of ayahuasca (pp. 142–159). Routledge. Labate, B. C., & Cavnar, C. (Eds.). (2014). The therapeutic use of ayahuasca. Springer. Labate, B. C., & Cavnar, C. (Eds.). (2018). The expanding world ayahuasca diaspora: Appropriation, integration and legislation. Routledge. Labate, B. C., & Cavnar, C. (Eds.). (2021a). Psychedelic justice: Toward a diverse and equitable psychedelic culture. Synergetic Press. Labate, B. C., & Cavnar, C. (Eds.). (2021b). Ayahuasca healing and science. Springer. Labate, B. C., Cavnar, C., & Gearin, A. K. (Eds.). (2017). The world ayahuasca diaspora: Reinventions and controversies. Routledge. Labate, B. C., & Jungaberle, H. (Eds.). (2011). The Internationalization of ayahuasca. LIT Verlag.

Afterword  247 Labate, B. C., Rose, I. S., & Santos, R. G. (2008). Ayahuasca religions: A comprehensive bibliography and critical essays. MAPS [translation from original in Portuguese: Religiões Ayahuasqueiras: Um Balanço Bibliográfico. Mercado de Letras, 2008]. Luna, L. E. (1986). Vegetalismo: Shamanism among the mestizo population of the Peruvian Amazon. Almqvist & Wiksell International. MacRae, E. (2014). The development of Brazilian public policies on the religious use of ayahuasca. In B. C. Labate & E. MacRae (Eds.), Ayahuasca, ritual and religion in Brazil (pp. 191–227). Routledge. National Council on Drug Policies (CONAD). (2006). Multidisciplinary Working Group – MGW Ayahuasca. Final report (C. Frenopoulo, Trans.). Bialabate.net. https://www.bialabate.net/wp-content/uploads/2021/11/GMT_CONAD_English.pdf National Council on Drug Policies (CONAD). (2010). Resolution n.1 – January 25, 2010. Brasília, DF. Bialabate.net. https://www.bialabate.net/wp-content/uploads/2022/03/Resolution_1_CONAD_2010.pdf Novaes, C., & Moro, M. R. (in this volume). The landscapes of ayahuasca in contemporary France. In B. C. Labate & C. Cavnar (Eds.), Religious freedom and the global regulation of ayahuasca (pp. 106–121). Routledge. Núcleo de Estudos Interdisciplinares sobre Psicoativos (NEIP). (2017). Declaration of principles of the religious groups who consume the tea hoasca. (B. Anderson, Trans.). (Original work published November 24, 1991). NEIP.info. http://www. neip.info/novo/wp-content/uploads/2015/03/DeclarationofPrinciplesoftheReligiousGroupswhoConsumetheTeaHoasca.pdf Palhano-Fontes, F., Barreto, D., Onias, H., Andrade, K. C., Novaes, M. M., Pessoa, J. A., Mota-Rolim, S. A, Osório, F. L., Sanches, R., Dos Santos, R. G, Tófoli, L. F., de Oliveira Silveira, G., Yonamine, M., Riba, J., Santos, F. R., Silva-Junior, A. A., Alchieri, J. C., Galvão-Coelho, N. L., Lobão-Soares, B … & Araújo, D. B. (2019). Rapid antidepressant effects of the psychedelic ayahuasca in treatment-resistant depression: A randomized placebo-controlled trial. Psychological Medicine, 49(4), 655–663. Plantaforma para la Defensa de la Ayahuasca. (2009). Ethical code for organizations which use ayahuasca in Spain (J. Weiskopf, Trans.) Bialabate.net. https:// www.bialabate.net/wp-content/uploads/2008/08/Ethical_Code_Ayahuasca_ Use_Spain.pdf Rochester, J. (2017, July 17). How our Santo Daime church received religious exemption to use ayahuasca in Canada. Chacruna. https://chacruna.net/ how-ayahuasca-church-received-religious-exemption-canada/ The Representatives of the Indigenous Peoples of the Juruá Valley. (2020a). Declaration of the first ayahuasca Indigenous conference. https://chacruna.net/ declaration-of-the-1st-brazilian-indigenous-conference-on-ayahuasca/ The Representatives of the Indigenous Peoples of the Juruá Valley. (2020b). Declaration of the 2nd Ayahuasca Indigenous Conference. Chacruna. https:// chacruna.net/declaration-of-the-2nd-brazilian-Indigenous-conference-onayahuasca/ The Representatives of the Indigenous Peoples of the Juruá Valley. (2020c). Declaration of the 3rd Ayahuasca Indigenous Conference. Chacruna. https://chacruna. net/declaration-of-the-3rd-brazilian-Indigenous-conference-on-ayahuasca/

248  Beatriz Caiuby Labate et al. The Representatives of the Indigenous Peoples of the Juruá Valley. (2022). Declaration of the 4th Ayahuasca Indigenous Conference. Chacruna. https://chacruna. net/declaration-of-the-4th-brazilian-Indigenous-ayahuasca-conference/ Tupper, K. W., & Labate, B. C. (2012). Plants, psychoactive substances and the INCB: The control of nature and the nature of control. Human Rights and Drugs, 2(1), 17–28. Union of Indigenous Yagé Medics of the Colombian Amazon (UMIYAC). (2000). Code of Ethics for the Practice of Indigenous Medicine in the Amazon Piedmont of Colombia. Bialabate.net. https://www.bialabate.net/wp-content/uploads/2008/08/code_of_ethics_umiyac.pdf Union of Indigenous Yagé Medics of the Colombian Amazon (UMIYAC). (2019, November 14). Declaration from the Spiritual Authorities, Representatives and Indigenous Organizations of the Amazon Region. Chacruna. https://chacruna.net/declaration-from-the-spiritual-authorities-representatives-and-indigenous-organizations-of-the-amazon-region/

Index

Note: Page numbers followed by “n” denote endnotes. accoutrements 24 Advisory Council on the Misuse of Drugs (ACMD) 70, 71 Affordable Care Act 21 Afro-Brazilian religions 107, 145, 165, 195, 241 Amazon 1, 2, 6, 7, 38, 40, 43, 48, 55, 71, 77, 86, 106, 107, 111, 117, 160, 163, 165, 172, 173, 177, 178, 179, 180, 182, 184, 185, 187, 189, 240 Amazon rainforest 2, 160, 227 Antunes, H. F. 165 Apud, Ismael 193–205 Aquinas, T. 209 Arizona Yage Assembly (AYA) case 18, 30–32 Article 9 of the European Convention on Human Rights (ECHR) 71–72, 89 Assis, G. L. de 5, 12 Australia 2, 11, 122–131, 134– 137, 139, 177, 200; Australian Constitution 122, 125, 129, 130–131; Australian drug laws 125, 128; freedom of religion (FOR) 129–134, 140; free exercise 130–133; international human rights treaties 122, 129, 134–137; prohibiting, Commonwealth 125, 130, 132; religion 131–132; sociolegal landscape 137–138; state and territory laws 127–128; state/territory based human rights legislation 133– 134; UDV TGA submission 138–139 Australian Constitution 122, 125, 129–132 Australian drug laws 125; enforcement 128–129

authorization 165–172 Authorization for Transportation of Forest Products (ATFP) 162, 163 ayahuasca 2–4, 6, 9, 10, 13, 19, 33, 109, 155, 156, 161, 168, 169, 172, 173, 193, 200, 203; Ayahuasca International case 200–202; in Brazil 7, 12, 13, 43, 108, 152, 161, 170, 173; ceremonies 5, 11, 51, 53–55, 77, 236, 237; churches 4, 10, 13, 17, 20–22, 26, 28, 30, 32, 33, 41; community committee 1; consumption 1, 4, 5, 7, 12, 41, 48, 55, 97, 99, 161, 166, 172; controversies, mass media 198–199; cultic deviance and 110–118; cultural heritage registration, Latin America 146–148; defense expert witness 222–237; diaspora 86, 100; environmental legislation 160–174; first amendment and 18; freedom of religion, Australia 122–140; global issue 10–14; global regulation of 9, 10, 14; government and CHLQ, relationship 47–49; importation 198, 203, 204, 224; importing 33, 100; international legislation 189; landscapes, contemporary France 106–119; legal and ethical journey, Canada 51–64; legal status, United States 17–36; legislation about use of 108–110; practitioners 33, 34, 82; psychoactive beverage, Brazil 142–144; recognition of 9, 154; regulating, United Kingdom 69–82; regulation 1–14, 44; religions 6, 9, 106–108, 155, 156, 160, 162, 165,

250 Index 168, 173, 174; shipments seizures, South America 32–33; state laws 17, 33–35, 139; in Uruguay 12, 193, 195–197, 199, 201, 203, 205; use in Australia 123–124; Vision 2021 17–36 ayahuasca cultural heritage registration process: genealogical proposal 142; Indigenous peoples and complexification 151–154; Roman property and intangible cultural diversity 144–146 Ayahuasca International 184, 193, 196, 200, 201 Banisteriopsis caapi 41, 52, 106, 110, 123, 177, 227 Barker, Eileen 212, 213 Barquinha 38, 106, 107, 143, 150, 161, 173, 241 Belgium 4, 13, 85–101, 201 beliefs 2, 5, 23–25, 27, 71, 72, 115, 116, 131–135, 138; system 87 Bouso, José Carlos 8, 14, 222–237 brainwashing 7, 199, 208, 209, 212–214 Brazil 1, 2, 4, 5, 6–7, 9, 12, 13, 33, 38, 41, 42, 43, 44, 48, 58, 70, 87, 82, 106–109, 112, 115, 118, 124, 143, 144, 146, 155, 156, 160, 161, 166, 172, 173, 203; ayahuasca cultural heritage registration process 142–157; ayahuasca environmental legislation 160–174; Indigenous populations in 160–174 Brazilian ayahuasca religions 4, 6, 38, 114, 143, 156, 165, 167–169, 172, 173, 202, 243 Brazilian Institute of Environment and Natural Resources (IBAMA) 162, 163, 164 Burwell v. Hobby Lobby (2018) 21–22 Caetano, Gerardo 194, 195 Caicedo Fernández, Alhena 7, 11, 12 California 21, 30, 34, 185, 212 Calvin, John 209 Canada 4, 5, 10, 11, 51–64, 198, 203, 243 cannabis 27, 28, 59, 62, 63, 75, 76, 78, 79, 129, 196, 202, 204 Canudos 210 Casanova, J. 195 Céu do Montréal (CdM) 51, 55, 58–63

Church of the Eclectic Cult of the Universal Flowing Light 101n1 Church of the Holy Light of the Queen (CHLQ) 10; complaint against US government 39–42; v. Mukasey 38–49 Colombia 4, 6–7, 11, 147, 152, 155, 177–190, 200, 240, 241, 242 Colorado 25, 34 comprehensiveness 24 Conselheiro, Antonio 210 constitution 18, 28, 40, 42, 88, 89, 122, 125, 129–132, 144, 147, 170, 183, 197, 202, 216 constitutional exemptions 33–34, 73 contemporary 4, 11, 79, 106–109, 114, 117–119, 123, 145, 154, 173, 242 Controlled Drugs and Substances Act (CDSA) 51, 52, 62 controlled substances 3, 8, 11, 17, 18, 28, 29, 32, 34, 39, 47, 49, 52, 57, 58, 59 Controlled Substances Act (CSA) 10, 17, 19, 20, 21, 22, 28–30, 31, 41, 47, 48 controversies 1–6, 9, 12, 14, 142, 143, 162, 166, 172, 193, 198, 200, 203, 209 Convention on Psychotropic Substances (CPS), 1971 3, 73, 86, 108, 196, 197 Cranston, Sir Ross 70, 74 Criminal Code Australia 126, 127 criminalization 5, 10, 13, 14, 51–55, 61, 69, 75, 81, 87, 89, 100 criminal religious movements (CRMs) 213–215, 217; ayahuasca movements 215–218 cults 4, 12, 71, 107, 110, 113–115, 132, 193, 198, 203, 207–215 cults or sectarian deviance 110 cultural heritage 5, 6, 7, 9, 12, 13, 14, 142–152, 154–156, 173, 179, 186, 242 cultural heritage registration 144, 145, 151, 154–156; ayahuasca, Brazil 148–150; ayahuasca and psychoactive plants, Latin America 146–148 cultural legitimacy, plant medicines 1, 6 cultural policies 6, 149 cultures, intersecting 51–64 cult wars 211–212 Curry, Denise 46

Index  251 Da Costa, N. 194, 195 dangerous religious cults 12, 193, 198 Daniels v Deputy Commissioner of Taxation (2008) SASC 431 133 DEA Interim Guidance 22–23; Meyers and Quaintance factors 23–28 DEA rulemaking 31 decriminalized cities 34–35 deforestation 7, 160, 163 Delaware 34 Deshayes, P. 119 destructive cults 208 Dimaggio, P. J. 166 dimethyltryptamine (DMT) 3, 17, 19, 33, 41, 44, 46, 51, 52, 58, 69, 73, 86, 87, 88, 91, 92, 93, 95–98, 106, 108, 123, 124, 126, 127, 128, 129, 137–139, 181, 196–197, 223–225, 229, 232–235 Dobkin de Rios, M. 1 Drug Enforcement Administration (DEA): rulemaking process, announcement 31–32 drug policies 5, 6, 12, 14, 51, 59, 61–63, 76, 78, 79, 92, 142, 144, 151, 161, 165, 193, 225 drug prohibition 73–74 drugs 12, 19, 44, 51, 52, 61–63, 70, 72, 78, 85, 91, 92, 94, 115, 116, 125, 126, 137, 148, 193, 196, 198, 202, 203, 207–218, 229, 230, 232, 236, 239, 244 drug war 47, 61, 86, 87, 100, 115, 137, 225 drug war paradigm 86; ayahuasca diaspora 86; belief system 87; Convention on Psychotropic Substances, 1971 86 “entheogenic” substances 12, 215, 216 Entheogens 8, 34, Australia 122–140 environment 5, 30, 45, 49, 55, 110, 147, 148, 155 environmental legislation 6, 7, 13, 160–163, 166, 169, 173 Esquerre, A. 113 ethnicity 4, 142 ethnopsychoanalysis 115 European Convention on Human Rights 71; democratic, pluralist and inclusive search 90; dialogue and compromise 90; normative counterweight 89–90; Right to Religious Freedom within EU 90

European Union 99, 100 experiences 5, 14, 54, 55, 60, 76, 107, 115, 117, 118, 124, 198–201 Fassin, D. 8 federal drug laws 125–127 Feeney, K. 3, 108, 109 First Indigenous Ayahuasca Conference 155 France 4, 11, 88, 90, 106–117, 119, 212, 240 freedom of religion (FOR) 122, 123, 125, 127, 129, 131–133, 135, 139, 140, 197, 201–203; Australia 122–140 Fróes, V. 1 Georgia 34 globalization 2, 4, 10, 12, 51, 193, 195 Goldman, Jonathan 38–40, 42–43 Goulart, S. L. 167 government 9, 10, 18–21, 23, 31, 33, 35, 38, 39–49, 51, 57, 58, 59, 61–63, 70, 73, 81, 107, 125, 130, 136, 137, 145, 147, 148, 149, 151, 156, 165, 166, 167, 169, 171, 172, 173, 174, 199, 202, 209, 210, 211, 213, 215, 216, 223, 236, 239, 240, 242, 243, 244 Gurdjieff, George Ivanovich 218 Halpern, John H. 44, 45 hard requirements, admission 101n5 harmaline 51, 52, 93, 110, 123, 124, 126–129, 139, 197, 229, 233 health risks 19, 20, 44, 47, 48, 49, 72, 96, 242 Hervieu-Léger, Danièle 113, 114 Hobby Lobby case 10, 17, 21–22 human rights 3, 5, 71, 73, 74, 78, 79, 81, 82, 85, 86, 88, 89, 96–99, 122, 129, 130, 133–137, 170, 244 identity 2, 4, 13, 90, 142, 150, 152, 167, 171, 184, 195, 199, 241 Igreja do Culto Eclético da Fluente Luz Universal (ICEFLU) 38, 40, 43, 48, 92, 94, 96, 99, 143, 148, 150–154; legal case 92–93; exile 93; noncomparable alternative 93; toxicity and non-comparable alternatives 92–93; value judgement, before assessment 92

252 Index Indigenous communities 55, 56, 57, 178, 179, 182, 183, 186, 187 Indigenous Peoples 4, 5, 7, 9, 12, 13, 29, 38, 142, 144, 147, 150–156, 166, 167, 168, 170, 171, 172, 173, 177, 179, 185, 187, 189, 242 intangible cultural heritage 9, 145–147, 156, 186 intellectual property rights 4, 185, 188, 189 International Center for Ethnobotanical Education, Research & Service (ICEERS) 9, 14, 78–79, 86, 154, 155, 167, 225 international human rights treaties 122, 129, 134–137; Article 18 of ICCPR 135–137 Iowa 29, 34 IPHAN 144, 147, 151–156 Kammonen, Tanya 55 Kounen, Jan 109, 117 Labate, B. C. 3, 5, 6, 9, 12, 13, 14, 108, 109, 146, 150, 165, 167 Laplantine, F. 108 law 1, 3, 5, 8, 10, 17, 18, 22, 23, 25, 27, 28, 30, 33–35, 40, 42, 44, 47, 49, 61, 70, 72, 74, 79, 81, 82, 87, 88, 89, 98, 95, 98, 99, 108, 112, 115, 122–140, 147, 169, 171, 193, 196, 197, 202, 203, 207, 212, 215, 216, 218, 224, 234 Lazzeretti, Davide 210 legal analysis 11, 69 legal cases 1, 86, Santo Daime 90–99; Fijneman case 94–95; FranklinBeentjes case 95–97; Valousek case 96; The (“Make It or Break It”) Van Dorsten A.O. case 97–99 legal coherentism 138 legal defense 9 legal dichotomy 17 legal floundering, Denmark 99 legalization 62, 63, 69, 78, 116, 189, 204 legal prosecution 18, 22, 28, 30, 33, 34, 38, 69, 75, 126, 128, 240 legislation 4, 7, 11, 12, 13, 52, 62, 75, 88, 91, 92, 95, 107, 108, 123, 125, 126, 129, 130, 132–134, 136, 160, 161, 163, 166, 172, 173, 180, 188 legitimacy 1, 2, 4–6, 9, 169, 170, 174, 177, 180–183, 184, 186, 187, 188, 189, 190, 196, 198, 228, 229

less restrictive means 48, 99–100 Leterrier, Romuald 117 Levy, A. 53 license 11, 57, 69–72, 74, 77, 81, 222 Llosa, Mario Vargas 217 Lombroso, Cesare 210, 211 Mabit, Jacques 109, 111, 146 Maclure, J. 194 MacRae, E. 1, 108, 165 The (“Make It or Break It”) Van Dorsten A.O. case 97–99; appeal and inadmissibility, rejection 98–99; prohibition, Santo Daime 98; selfregulatory action CLAREIA 97–98; third affirmation, religious freedom 97 Maryland 33 mass media 193, 198–199, 203 McAllister, Sean T. 3, 10 medicalization 12, 180, 189 metamorphosis: of prohibition 74 metaphysical beliefs 23, 27 Meyers’ factors 17 Miviludes 11, 110, 112, 240 Montana 34 Mother Earth case 28–30 multiculturalism 12, 123, 179, 182, 188 multiculturalist state 180 Nebraska 33 Needleman, Jacob 212 neoshamanism 11, 241 Netherlands 4, 13, 85–89, 91, 93–99, 109, 111, 112, 116, 203 Nevada 34 new age 107, 147, 152, 195, 241 New Jersey 33 new religious movements 87, 113, 195, 210–214, 218 North American Association of Visionary Churches (NAAVC) 30 North Carolina 33 North Dakota 34 objective seriousness 125, 127, 129 Oregon 33, 34, 35, 38–49, 243 Orlando Gaitán 183, 217 O uso ritual da ayahuasca (The Ritual Use of Ayahuasca) 2 Panner, Judge 42–47 patrimonialization 6, 12, 186–188, 203 personal autonomy 99–100 Plan Colombia 187, 190n5

Index  253 plant-assisted process, self-mastery 55 plant species 7, 13, 160–164, 166, 169, 172, 173, 174, 186, 190 pluralism 85, 90, 114, 169 policy 3, 6, 32, 35, 41, 51, 59, 61–64, 78, 79, 92, 108, 142, 144–147, 165, 179, 181, 182, 186, 202, 208, 214, 240, 242 Powell, W. W. 166 Prince Gurdjieff 217–218 proactive approach 11, 69–82 prohibition 11, 13, 34, 39, 45–47, 49, 69, 70, 72–76, 78, 82, 88, 93, 95–100, 155, 181, 196, 198, 201, 204, 216, 240 psychedelics 9, 34, 51, 63, 64, 75–80 psychedelic-assisted therapy 62 psychoactive 8, 13, 43, 45, 62, 72, 73, 75, 78, 81, 86, 106, 116, 137, 146, 177, 228, 229, 231 psychoactive drugs 116, 137 psychoactive plants 126, 146 psychoactive substances 3, 8, 13, 14, 41, 45, 59, 62, 71, 78, 86, 87, 100, 115, 116, 132, 137, 140, 146, 169 Psychotria viridis 3, 41, 52, 106, 110, 123, 227 public controversies 2, 172, 198 public debate 2, 6, 7, 9, 14, 114, 172, 173, 200 public policy 6, 41, 79, 145, 240 Rance, D. 165 Rebollo, N. 8 regulation 1, 2, 3–11, 14, 41, 43, 44, 47, 63, 69, 75–82, 98, 108, 112, 114, 115, 122, 123, 139, 144, 147, 165, 166, 197; of ayahuasca 1, 3, 4, 6, 7, 11, 47, 51, 54, 60, 62, 69 regulatory framework 11, 63, 122, 139, 145, 182 Religious Freedom Restoration Act (RFRA) 10, 17–19, 21, 22, 25, 26, 28, 30, 31, 34, 35, 40, 46, 47, 49, 216 Religious Land Use and Institutionalized Persons Act 26, 28 religious/religion 3, 14, 18, 19, 22, 23–26, 27, 28, 29, 31, 39, 40, 41, 43, 46, 48, 59, 60, 71, 72, 74, 82, 87, 88, 91, 92, 95, 130–133, 135, 142, 145, 194, 207–218; beliefs 18, 19, 21–24, 26, 27, 89, 90, 131, 133, 135; ceremonies 21, 39–41, 44, 47, 122, 156; communities 35, 88, 89; exemptions 17, 18, 22, 28, 29, 31,

47, 63; freedom 4, 5, 9, 10, 13, 31, 42, 49, 73, 85, 90, 95, 97, 130, 204; groups 7, 9, 55, 59, 115, 116, 165, 172, 211, 213–215; institutions 42, 131, 162, 169, 202–204; liberty 18, 33, 109, 209, 212, 216, 217; movements 213–215, 217; practices 12, 14, 17–19, 26, 27, 30, 33, 35, 39–41; purposes 18, 19, 22, 42; regulation 114; rituals 43, 169, 216, 217; use 3, 4, 6, 7, 10, 17–20, 47, 49, 161, 172, 198, 202 rights 3, 4, 6, 7, 9, 20, 21, 31, 40, 42, 49, 72, 74, 89, 90, 93, 96, 98, 99, 122, 130, 133–135, 137, 170, 171, 172, 179, 185, 186, 188, 189, 190, 243, 245 Rochester, Jessica 58 Rudd, Amber 70 R v Aziz (2012) 69 sacred plants 187, 196, 200; legality 1 Santo Daime 1, 4, 10, 12, 13, 17, 20, 21, 22, 26, 29, 38–49, 55, 58, 60, 62, 63, 106, 107, 109, 110, 112, 114, 116, 199, 222; in Belgium and Netherlands 85–101; Casa de Cura Mestre Irineu (CdCMI) 91; César, apprehension 90–91; double paradigm 85; European Convention on Human Rights 89–90; exemption 20–21; harmful religion 89; HSOPolice stance 91; ICEFLU, legal case 92–93; legal cases, Netherlands 94–99; public ministry stance 91–92 Santo Daime church 4, 10, 20, 38, 39, 89, 95, 97–100, 109, 198, 199, 222, 240; regulation, Oregon 38–49 scheduled substances, Australia 125 Scuro, Juan 12 Second World Ayahuasca Conference 154–156 sects 11, 71, 85, 87, 88, 91, 110, 165, 207, 211, 244; Belgian perspective 88–89; harmful sectarian organizations (HSOs) 87–88; new religious movements (NRMs) 87–88 secularism 114, 194 Segato, R. 178 self-mastery 55 self-realization 80 self-regulation 9, 76, 78–80, 82, 147, 184, 189, 242 Simon, D. 138 social legitimacy 6

254 Index soft requirements, admission 101n5 Soul Quest church 18, 28–31, 35 South Dakota 34 spirituality 80, 107, 113, 116, 123, 139, 195 State agencies 5, 8, 10, 12, 14 state-level RFRAs 33–34 Suárez Álvarez, C. 160 subjectivity 107, 119, 138 sustainability 80, 152, 160, 173, 174 taita 147, 178, 180–185, 190n2 Taylor, C. 194 Thevenin, J. M. R. 163 Thomas, Gerald 57 toxicity 92, 93, 95, 98, 227, 228, 229, 230 tradition 4, 6, 111, 142, 150, 167, 168, 173, 180, 181, 204, 211, 214, 218, 236 traditional knowledge 4, 167, 185–189 traditional uses 11, 73, 184 trials 8, 14, 222–229, 232, 235, 236 Troeltsch, E. 211 ultimate ideas 23 União do Vegetal (UDV) 10, 11, 17, 19–22, 25, 26, 29, 38, 40, 41, 42, 44, 45, 47–49, 59, 60, 62, 69–74, 81, 106, 107, 109, 112, 114, 116, 118, 123, 124, 131, 132, 138, 139, 143, 149, 150, 152, 154, 161, 172, 173, 198, 216, 217, 223, 240, 241, 243, 244; exemption 19–20

Uruguay 4, 12, 193–199, 201–205; ayahuasca in 195–196; new spiritual landscape 194–195; Santo Daime confiscation case 197–198 US Customs Border Patrol (CBP) 32, 33 US District Court, Oregon 42–47 U.S. v. Meyers 23 U.S. v. Quaintance 23 Utah 25, 34 Varela, Alberto 184, 185, 200, 201 Vermont 33 Visionary Vine: Hallucinogenic Healing in the Peruvian Amazon (Marlene Dobkin de Rios) 1 Viveiros de Castro, E. 119 Weber, M. 211 Weor, Samael Aun 218 West Virginia 34 World Ayahuasca Conference 9, 56, 64, 154–156, 167, 168 worship 71, 72, 92, 132–135 Wyoming 25, 34 Xie Jiao 207–209, 214 yage 147, 155, 177–190, 241, 242; legality and legitimacy, Colombia 177–190; legitimacy regime, new uses 182–185; new uses and actors 180– 182; physical and cultural protection 185–188; uses, Colombia 178–180 Yagecero field 184, 189