Singing to the Plants: A Guide to Mestizo Shamanism in the Upper Amazon (70 page)

In early October iggg, police raids in several European countries resulted
in the seizure of ayahuasca from members of the Santo Daime. In Amsterdam, the police raided a Santo Daime ceremony, confiscated the ayahuasca,
and charged the group leader, Geerdina Fijneman, with conspiracy to distribute DIM, a Class I dangerous drug.48 This raid on a church during a ceremony
caused outrage and demonstrations in favor of legalization. The public prosecutor apparently offered to drop the charges, but Santo Daime's lawyer, Adele
van der Plas, pushed for a trial, in order to obtain a clear judicial ruling on the
legality of the church's ayahuasca use.

The case came to trial in May zoos. The church argued that the use of ayahuasca was fundamental to its religious practice, and that its right to religious
freedom under Article g of the European Convention on Human Rights and
Fundamental Liberties outweighed any potential threat to public health from
the use ofayahuasca in the Santo Daime church. The court agreed. Prohibiting
the defendant from receiving the most important sacrament of her religion,
the court stated, "constitutes such a serious infringement of her religious
freedom that this infringement cannot be regarded as necessary in a democratic society." Based on the evidence presented that there are no appreciable
health risks involved in the ritual use of ayahuasca, "greater weight should be
attached to the protection of religious freedom." The court declared that the
charges were not punishable, and acquitted the defendant.49

In Paris, the police similarly raided a Santo Daime church, jailed the leaders for three weeks, reportedly tapped the telephones of church members,
and charged the association with embezzling as well as drug trafficking.s° In
Paris, few people heard of the Santo Daime arrests, and apparently few cared;
there were no demonstrations. In January 2004, the six defendants were found
guilty, variously, of illegally acquiring, possessing, and importing narcotics,
and were given suspended sentences to terms in prison varying from four to
ten months.s'

In January 2005, these convictions were overturned by the court of appeals.
The court noted that no regulation specifically listed ayahuasca as prohibited.
The court further noted that the penal code and the health code prohibited
"poisonous plants, substances, and preparations." The court took the term
substance to mean a pure chemical substance, such as DIM, and the term preparation to refer to the pharmaceutical operation of mixing or dissolving such
pure substances. Although the ayahuasca drink undoubtedly contained DIM,
which is prohibited, the DIM did not get there by a process of preparation, as
required by law, but, rather, by way of decoction, infusion, or maceration. Such operations, the court said, cannot produce a substance, since the results are
not homogeneous, and the components can still be isolated-for example,
by chromatography-and extracted. Based on this reasoning, the court dismissed all charges against the defendants, and ordered the state to return the
confiscated ayahuasca.52

But like many such technical victories based on statutory language, this one
was Pyrrhic for the Santo Daime church. On May 3, 2005, just four months after the acquittal, the director general for health promulgated an order amending the list of substances classified as narcotics specifically to include not only
Banisteriopsis caapi, Psychotria viridis, and Diplopterys cabrerana but also harmine,
harmaline, and tetrahydroharmaline-in other words, just about every possible ingredient of the ayahuasca drink.53

THE UNITED NATIONS CONVENTION

In ig8o, the United States ratified the U.N. Convention on Psychotropic Substances, in support of an international effort "to prevent and combat abuse
of [psychotropic] substances and the illicit traffic to which it gives rise."54
Very much like the Controlled Substances Act, the convention classifies substances according to their degree of safety and medical usefulness, with DIM
in Schedule I, representing substances that are considered particularly unsafe
and lacking any medical use.55 Parties to the convention-more than 16o nations in all-must, under Article 7(a), prohibit "all use except for scientific
and very limited medical purposes," with the following provision under Article 32(4): "A State on whose territory plants are growing wild which contain psychotropic substances from among those in Schedule I and which are
traditionally used by certain small, clearly determined groups in magical or
religious rites may, at the time of signature, ratification, or accession, make
reservations concerning these plants, in respect of the provisions of article 7,
except for provisions relating to international trade." Under this provision,
the United States made a reservation for religious use of peyote by the Native
American Church, and Peru made a reservation for the use of DIM "by certain
Amazon ethnic groups in magical and religious rites and in rites of initiation
into adulthood. 1156 Neither the United States nor Brazil ever made a reservation for DMT.

Also like the Controlled Substances Act, the convention provides that
"a preparation is subject to the same measures of control as the psychotropic substance which it contains" and defines preparation as "any solution or mixture, in whatever physical state, containing one or more psychotropic

Such international treaties are recognized by the Constitution as being
the law of the land.58 But treaties have no greater or lesser impact than other
federal laws;59 and where the provisions of a treaty, such as the convention,
conflict with the provisions of a statute passed subsequent to the treaty, such
as RFRA, the Supreme Court has held that the statute, to the extent of the conflict, supersedes the treaty.60 Pursuant to the Psychotropic Substances Act of
1978, the United States implements its international drug-control treaty obligations, including the convention, through the Controlled Substances Act.6'

In a drug prosecution in the United States, therefore, reference to the convention would appear to be superfluous. However, RFRA requires that courts
strike a "sensible balance" between religious practices and compelling government interests.62 In the Uniao do Vegetal case, the government asserted
three such compelling interests-health risks to members of the UDV,
potential for diversion to nonreligious use, and adherence "to an important
international treaty obligation" under Article 7(a).63 It is on the basis of this
last purported government interest that it becomes important to determine
whether the ayahuasca drink, or the chacruna leaves from which it is made,
falls within the scope of the convention.

That question has only partially been answered. The Supreme Court has
unambiguously ruled that the ayahuasca drink is a solution or mixture of
DIM under Article i(f) (i) of the convention and therefore, under Article 3 (1),
is subject to the same measures of control as DIM itself64 But as the Court
pointed out, the fact that the ayahuasca drink is covered by the convention
does not automatically mean that the government has demonstrated a compelling interest in prohibiting the religious use of ayahuasca by a group such
as the UDV.65 In the Uniao do Vegetal case, the government had failed to show
at trial any compelling state interest in meeting its international obligations
by complying with the convention-and, the Supreme Court said, had failed
even to submit evidence concerning the international consequences of allowing the UDV to drink ayahuasca in its ceremonies.66 So the question remains
open as to whether, in some future case, the government can establish a sufficiently compelling interest in meeting its international obligations under the
convention to overcome the demands of RFRA.

It is worth remembering that the convention itself seems to stake out
room for claims of religious exemption. In Article 22(I)(a), it provides that
each party shall treat any intentional offense as a punishable act "subject to its constitutional limitations" and, in Article 22(5), that such offences "shall be
defined, prosecuted and punished in conformity with the domestic law" of the
country involved. At first glance, this would certainly seem to include RFRA.
The Supreme Court has so far declined to rule on this issue.67

The Court also asserted no opinion as to whether the plants from which
the drink is made are covered by the convention-an issue to which we now

THE STATUS OF NATURAL HALLUCINOGENS

IN THE UNITED STATES

Small quantities of chacruna, both live plants and dried leaves, in fifty-gram
or two-ounce packets, are readily available on the Internet; and one occasionally hears claims that while possession or sale of DIM may be a felony, the
Controlled Substances Act prohibits only synthetic DIM and not the DIM occurring naturally in plants, such as chacruna, or even in plant preparations,
such as the ayahuasca drink-that it is in fact legal to possess plants containing DIM. The argument basically states that if Congress had wanted to ban
such natural DIM, it would have done so, just as it explicitly banned both the
plant peyote and the chemical mescaline.19

This claim has achieved the status of folklore but has not prevailed, as far
as I have been able to ascertain, in any U.S. ayahuasca prosecution. Courts
have had little difficulty in finding that the statutory regulation of "any material, compound, mixture, or preparation which contains any quantity" of DIM
has a plain meaning that embraces both chacruna and the ayahuasca drink.7°
"When Congress speaks clearly," said Magistrate Judge Alan J. Baverman, rejecting the claim that the chacruna imported by Alan Shoemaker was not covered by the Controlled Substances Act, "the court must follow what Congress
has stated." 7' Chief Judge James A. Parker, rejecting similar claims by the
Uniao do Vegetal, said that "the plain language of the GSA [Controlled Substances Act] clearly indicates that the statute's prohibition on DIM extends
to" the ayahuasca drink, which is therefore "an illegal substance under the
GSA. "72

The claim that DIM-containing plants are not illegal is frequently buttressed by two documents. The first is a Commentary on the Convention on Psychotropic Substances, published by the United Nations and written by Adolf
Lande, who served for many years as secretary of two international drug organizations, the Permanent Central Narcotics Board and the Drug Supervisory
Body.73 This commentary notes that the convention does not list any natural hallucinogenic materials, such as plants, in Schedule I, and comments that
"plants as such are not, and it is submitted are also not likely to be, listed in
Schedule I, but only some products obtained from plants."74 This is because
"the inclusion in Schedule I of the active principle of a substance does not
mean that the substance itself is also included therein if it is a substance clearly distinct from the substance constituting its active principle. 1175 Presumably
plants are substances sufficiently distinct from their active principles to be excluded from regulation. This is, of course, precisely the opposite of the common reading of the Controlled Substances Act.76

More than that, the commentary seems to assume that simple preparations
made from plants containing hallucinogenic substances are not regulated by
the convention either. The commentary notes that "neither ... the roots of
the plant Mimosa hostilis nor Psilocybe mushrooms themselves are included in
Schedule I, but only their respective active principles."77 In two footnotes, the
commentary then observes that "an infusion of roots" is used to consume Mimosa hostilis and that "beverages" are used to consume Psilocybe mushrooms.78
One may infer that such infusions or beverages are as distinct from their active principles as were the roots or mushrooms from which they were made.79

The second document is a letter from Herbert Schaepe, secretary of the
International Narcotics Control Board (INCB), the group responsible for
enforcement of the convention, which was solicited by the prosecutor and
submitted to the Dutch court in the Fijneman case. This document makes explicit what the commentary implies, stating, "No plants (natural materials)
containing DMT are at present controlled under the 1971 Convention on Psychotropic Substances. Consequently, preparations (e.g., decoctions) made of
these plants, including ayahuasca, are not under international control and,
therefore, not subject to any of the articles of the 1971 Convention.""

Of course, the impact of these documents is doubly indirect. Neither
is likely to persuade an American court to ignore the plain language of the
Controlled Substances Act. And even if the two documents correctly state the
intent of the convention, there is no reason why the United States may not
regulate natural plant hallucinogens that the convention leaves unregulated.
The question they raise, rather, is whether natural plant hallucinogens fall
within the embrace of the convention such that the government can claimin addition to other compelling interests-a compelling interest in enforcing
their regulation under its treaty obligations.

Based on the reasoning of the commentary, judge James A. Parker originally ruled in the Uniao do Vegetal case that the ayahuasca drink does not fall
within the embrace of the convention. The court reasoned that the ayahuasca drink, like the plants from which it is made, is sufficiently distinct from DIM
to fall outside the treaty-a position then strongly rejected by both the Court
of Appeals and the Supreme Court."

Apart from this rejection by two appellate courts, there are questions about
the legal force of both these documents in an American courtroom. First,
they appear facially inconsistent with the language of the convention, which
at least contemplates that natural substances may be regulated, by defining
psychotropic substance as "any substance, natural or synthetic, or any natural
material in Schedule I, II, III or IV."" Moreover, Article 32(4) allows states to
make a reservation for the religious use of "plants growing wild which contain psychotropic substances from Schedule I." The fact that a specific reservation must be made to exclude such plants indicates that they are otherwise
included.83