The plant Salvia divinorum has a long and continuing tradition of use by Mazatec shamans, who drink it, sometimes followed by a drink of tequila, to induce visionary states during healing sessions, which are performed at night in a quiet and darkened room. The drink is made by crushing the leaves to extract the juices, which are then mixed with water. It is important to be ritually mindful when collecting the leaves, and there are strict prohibitions — for example, avoiding sexual contact — to be kept for several days after the ceremony. The plant grows primarily in the mountain cloud forest in Oaxaca, Mexico. There is reason to believe that the plant is either a cultigen or hybrid developed specifically for its psychoactive effects.

The primary psychoactive constituent is a diterpenoid known as salvinorin A, a potent and selective κ-opioid receptor agonist. These receptors are widely distributed in the brain, spinal cord, and pain neurons. Other drugs that act at the κ-opioid receptor, such as ketazocine, produce similar effects. Salvinorin A is unique in being the only naturally occurring substance known to induce a visionary state by acting at this site. There is no evidence that Salvia is addictive.

R. Gordon Wasson, A young Mazatec girl grinding Salvia divinorum leaves on a metate to express the juice (1962)

Salvia divinorum can also be chewed, smoked, or taken as a tincture. Different preparations may have different onset times, but the effects and their duration appear similar — perceptions of bright lights, vivid colors and shapes, as well as body movements and body or object distortions. Other effects include dysphoria, uncontrolled laughter, a sense of loss of body, overlapping realities, and hallucinations. Adverse physical effects may include incoordination, dizziness, and slurred speech. The duration of these effects is relatively brief, typically lasting only a few minutes.

The most commonly reported aftereffects include improved mood and sensations of insight, calmness, and connection with nature. There have been rare reports of anxiety or sadness.

The Mazatec believe that Salvia is an incarnation of the Virgin Mary, and they refer to it as ska María Pastora, the leaf of Mary the Shepherdess. The name is usually shortened to ska María or ska Pastora. “The purpose of these sacraments is to purify, and to open the road,” says Mazatec shaman Aurelia Aurora Catarino. “When it opens, it’s as clear as the blue sky, and the stars at night are as bright as suns.”

In the September 2006 issue of New Scientist, writer Gaia Vince says that Salvia “took me on a consciousness-expanding journey unlike any other I have ever experienced. ” He continues:

My body felt disconnected from “me” and objects and people appeared cartoonish, surreal and marvellous. Then, as suddenly as it had began, it was over. The visions vanished and I was back in my bedroom. I spoke to my “sitter” — the friend who was watching over me, as recommended on the packaging — but my mouth was awkward and clumsy. When I attempted to stand my coordination was off. Within a couple of minutes, however, I was fine and clear-headed, though dripping with sweat. The whole experience had lasted less than 5 minutes.

Poet Dale Pendell, in the Salvia divinorum chapter of his book Pharmako/poeia, quotes some users who have smoked dried Salvia leaves: “It’s very intense, I call it a reality stutter, or a reality strobing,” says one report. And another: “It’s like heavy zazen, like after a very long period of sitting, the place you can get to there. It’s changed my life, turned my life around.”

Two Guyz Trippin on Salvia at the Same Time (2009)

Popular use of Salvia, especially among young people, has been increasing. A National Survey on Drug Use and Health Report published in February 2008 estimated that 1.8 million persons aged 12 or older had used Salvia divinorum in their lifetime, and approximately 750,000 had done so in the past year. As we have mentioned here, the plant is being made illegal in an increasing number of states, and — while not currently regulated by the federal Controlled Substances Act — the DEA has listed Salvia as a “drug of concern.” The legal situation has been aggravated by a number of YouTube videos of teenagers, allegedly high on Salvia, laughing uncontrollably and apparently unable to perform simple tasks or to communicate.

Now the prestigious and generally sober Scientific American has published, in its August 2009 issue, an article by science writer David Jay Brown, calling for restraint in the march toward legal prohibition of Salvia. The article points out that only two labs currently conduct human studies with salvinorin A — one run by psychiatric researchers Deepak Cyril D’Souza and Mohini Ranganathan, both at the Yale University School of Medicine, and the other by pharmacologist John Mendelson of the University of California, San Francisco. Both groups are performing preliminary tests to determine how best to administer salvinorin A to human volunteers and collect basic data. The article states:

The unusual properties of salvinorin A intrigue scientists. Psychiatric researcher Bruce Cohen and his colleagues at Harvard Medical School have been developing analogues of salvinorin A and studying their possible mood-modulating properties. The team’s work with salvinorin A in animals suggests “that a drug that would block kappa opioid receptors might be an antidepressant drug — probably a nonaddictive one — or a mood stabilizer for patients with bipolar disorder,” Cohen remarks. By activating the kappa opioid receptors, drugs such as salvinorin A could reduce dependence on stimulants and the mood-elevating and mood-rewarding effects of cocaine. Because salvinorin A can produce distortions of thinking and perception, researchers speculate that blocking the receptors might alleviate some symptoms of psychoses and dissociative disorders.

D’Souza and Ranganathan argue that scheduling the drug should wait until evidence about its effects and toxicity becomes clear. “The issue is a serious one, with implications for policy, drug enforcement and research,” Cohen says. If salvinorin A becomes a federally scheduled drug, research on it would become “much more difficult,” predicts Rick Doblin, director of the Multidisciplinary Association for Psychedelic Studies. Approval boards at universities and research institutions view proposals involving criminalized drugs with extreme caution. “And funders are reluctant to look at potentially beneficial uses of drugs of abuse,” he adds.

On March 12, federal agents arrested four men — three from Washington and one from Oklahoma — for killing eagles and selling their feathers. One of the men, Reginald Dale Akeen, an enrolled Kiowa, is accused of traveling the powwow circuit under the name of J. J. Lonelodge and selling illegally obtained feathers to dance competitors for use in their regalia.

Golden eagle

While the arrests in Washington and Oklahoma were of Native Americans, the undercover sting operation is apparently more expansive, with agents operating in sixteen states, and targeting both Native and non-Native Americans. Reports of additional arrests and confiscations have been reported on blogs here and here, including the alleged arrest of well-known Diné fan maker Patrick Scott.

There are a number of federal laws addressing the protection of eagles — the Lacey Act, the Migratory Bird Treaty Act, the Endangered Species Act, and the Bald and Golden Eagle Protection Act. The federal agency charged with this protection is the U.S. Fish and Wildlife Service, and its regulations governing the religious use of eagle feathers by Native Americans are found at 50 CFR § 22.22.

Under these regulations, you can legally possess an eagle feather only if you are “an Indian who is authorized to participate in bona fide tribal religious ceremonies” and have received a government-issued eagle permit. To be an Indian you must have the appropriate Certificate of Degree of Indian Blood, and you must be an enrolled member of one of the 562 entities officially recognized by and eligible to receive services from the United States Bureau of Indian Affairs.

Those convicted of possessing eagle feathers without the appropriate permit face imprisonment and fines — as much as two years in prison and a $250,000 fine for a second offense, which is a felony.

The U.S. Fish and Wildlife Service maintains tight control over eagles and eagle feathers. The agency has established a National Eagle Repository at the Rocky Mountain Arsenal National Wildlife Refuge in Denver, Colorado, to provide Native Americans with the feathers of golden and bald eagles needed for religious purposes. The repository serves as a collection point for dead eagles, most salvaged by state and federal wildlife personnel, and most either killed by electrocution, vehicle collisions, or illegal shooting and trapping, or dead from natural causes.

Under the current law, the repository is the only legal source of bald and golden eagle body parts. In order to get an eagle feather legally, you must first obtain an eagle permit from the Fish and Wildlife Service, authorizing you to receive and possess the feather from the repository for religious purposes. Then you have to apply to the repository for the feather. There is currently about a three-and-a-half-year waiting list. More than 5,000 people are standing in line for the approximately 1,000 eagles the repository receives each year.

These rules can have surprising consequences.

Dancer with eagle feather bustle

Robert Soto — see here, here, and here — is a holy man of the Lipan Apache. In 2006, during the giveaway ceremony at a powwow in Texas, his eagle feathers were confiscated by an agent of the Fish and Wildlife Service. Soto did not have a permit for the feathers, and he could not get one if he tried. The Lipan Apache are not recognized as a Native American tribe by the Bureau of Indian Affairs.

The rules also make it illegal for anyone — including enrolled members of federally recognized tribes — to possess an eagle feather that has simply fallen on the ground from a live eagle. The rules make it illegal to trade or barter feathers. The rules make it illegal for a Native American to give an eagle feather, as a sign of honor or respect, to a non-Native American, or to a Native American who is not an enrolled member of a federally recognized tribe, or to an enrolled tribal member who does not have a permit. It is illegal for a Native American to give an eagle feather to a non-Native spouse.

And, in some cases, as among the Northern Arapaho of Wyoming, feathers from an eagle killed by an automobile, for example, or by flying into power lines, or by poison, are not considered pure, and cannot be used in the Sun Dance. Instead, the feathers must be from an eagle acquired personally by the sponsor, as a gift of the Creator. The current rules make that impossible.

The National Eagle Repository

Clearly there are a number of competing ethical and constitutional values at work here. Although the bald eagle was removed from the endangered species list in 2007, there is every reason to continue to protect eagles and other raptors from poaching. There are good reasons, too, to try to curtail the appropriation of indigenous ceremonies by outsiders to the tradition. That is why many people believe that, after centuries of genocide and marginalization, only enrolled tribal members should be allowed to possess eagle feathers.

Moreover, under both the American Indian Religious Freedom Act and the Religious Freedom Restoration Act, there is every reason to accommodate Native American religious use of eagles and eagle feathers. At the same time, there are legitimate questions raised by restricting that accommodation to a group defined first in racial terms and then by a quintessentially political act of regulatory legitimation.

Courts have differed on whether the Religious Freedom Restoration Act requires the government to open the application process for eagle feathers to Native Americans who are members of tribes that lack federal recognition. Two cases illustrate this conflict. In both, the government argued that it had a compelling interest in preserving the eagle population, and that limiting eagle permits to enrolled members of federally recognized tribes met that goal with the least possible impact on Native American religious practices.

In U.S. v. Hartman (2002), the United States Court of Appeals for the Tenth Circuit held that the government had not presented sufficient evidence to show that expanding the permit system to a member of the federally unrecognized Chiricahua Apache would threaten the eagle population. In fact, the court said, expanding the pool of applicants while the number of permits issued remained constant would at worst add to the delay to applicants, with no effect on eagles.

On the other hand, in U.S. v. Antoine (2003), the United States Court of Appeals for the Ninth Circuit held that the Religious Freedom Restoration Act did not require the government to grant an eagle permit to a member of the federally unrecognized Cowichan Band of the Salish Indian Tribe in British Columbia. “RFRA requires least restrictive means to avoid substantial burdens on religion,” the court stated.

But, in this case, the burden on religion is inescapable; the only question is whom to burden and how much. Both member and nonmember Indians seek to use eagles for religious purposes. The government must decide whether to distribute eagles narrowly and thus burden nonmembers, or distribute them broadly and exacerbate the extreme delays already faced by members. Religion weighs on both sides of the scale. The precise burdens depend on how many nonmember applicants there would be, but not in any illuminating way: Fewer nonmember applicants means shorter additional delays for each member if the restrictions are removed, but also fewer people burdened if they are left in place.

Given this uncertainty regarding Native Americans who are acknowledged members of historical tribes that lack federal recognition, it appears unlikely that the permitting process will be opened any time soon to applicants who are not Native Americans at all.

Nez Perce beaded eagle feather fan

One organization, Religious Freedom with Raptors, has proposed replacing the tribal enrollment requirement with a Certificate of Religious Participation endorsed by a tribal member or spiritual leader. Requiring such a certificate, the organization argues, would ensure that only approved participants in bona fide Native American customs are eligible to receive eagle permits, and would allow for direct oversight of eagle feathers to ensure that feathers and ceremonies are not abused. The certificate would thus give legal protection to Native Americans who wish to include others of their choosing in traditional customs involving eagle feathers.

But the organization does not address a further issue. If enrolled tribal members are willing to poach eagle feathers and sell them for money, as is alleged of Reginald Dale Akeen, an enrolled Kiowa, there seems to be little to stand in the way of enrolled tribal members selling Certificates of Religious Participation to outsiders for money as well. While this may reduce poaching — at least for those non-Native Americans actually willing to stand in line for years to get a legal feather — it will, as the Ninth Circuit pointed out, just make the line longer, and increase the wait for everyone.

I would like to think that there is a fair solution to these issues, but I sure don’t know what it is.

Mestre Imperador Raimundo Irineu Serra, Founder of Santo Daime

The suit was brought by the Church of the Holy Light of the Queen in Ashland, Oregon, led by padrinho Jonathan Goldman, a student of Santo Daime for twenty-one years, who had traveled frequently to Brazil to receive instruction from church leaders, and learned Portuguese in order to understand the hymns that constitute church doctrine. Joining in the suit was a separate church in Portland, called Céu da Divina Rosa, Church of the Divine Rose, and its leader Alexandra Bliss Yeager, as well as several individual members of both churches.

Goldman had been arrested and the church’s supply of ayahuasca seized by federal agents in1999. Counsel for the plaintiffs in the lawsuit attempted to negotiate an agreement with the Department of Justice, which refused to consider a religious exemption for the church. On the other hand, in 2000, the Oregon Board of Pharmacy determined that the religious use of ayahuasca by the Church of the Holy Light of the Queen was a “non-drug” use, and therefore not subject to state drug laws and regulations. Since that time, ayahuasca has had a status in Oregon law similar to that of peyote when used as a sacrament by the Native American Church.

Following Goldman’s arrest, the plaintiffs continued to practice their religion in secret. In 2006, after the Supreme Court handed down its decision in the União do Vegetal case, the plaintiffs commissioned a study of Church of the Holy Light of the Queen members by psychiatrist John H. Halpern, who had written extensively on the use and abuse of hallucinogenic drugs, including a paper on the long-term health of members of the Native American Church who consume peyote as a sacrament — a study we have discussed here.

In 2008, armed with the results of that study and the earlier ruling of the Supreme Court, plaintiffs brought suit in federal court, seeking an injunction that would allow them to use ayahuasca as a central sacrament of their religious practice.

Judge Panner’s opinion provides a scholarly and sympathetic account of Santo Daime history and doctrine in general, and of the practices of the Church of the Holy Light of the Queen in particular — their careful records of ayahuasca purchase and use, their screening procedures for new members, their use of medical questionnaires, their “controlled and supportive religious ceremony,” their security procedures for storing and distributing ayahuasca.

The court was less sympathetic to the claims of the government, particularly its scientific case concerning purported short- and long-term effects of ayahuasca use. “I find studies of LSD and pure injected DMT,” the court wrote, “are only marginally relevant in evaluating the risks of consuming Daime tea in a religious ceremony.”

The court was also unimpressed with the government’s other arguments. For example, the government asserted a compelling interest in preventing the diversion of ayahuasca to recreational users. “The government has not presented evidence that there is a significant market for Daime tea,” the court wrote. “The government also has not presented evidence that plaintiffs have allowed the diversion of a single drop of Daime tea. This is an issue best addressed through reasonable guidelines for storing and inventorying plaintiffs’ supply of Daime tea.”

The court closely followed the legal reasoning of the Supreme Court in the União do Vegetal case, and similarly found that the government had failed to establish either a compelling state interest in forbidding the use of ayahuasca by the church, or that “outright prohibition of the Daime tea is the least restrictive means of furthering its interests.” On those grounds the court found that the plaintiffs were entitled to the requested injunction under the Religious Freedom Restoration Act.

The entire opinion is cogent, clear, sensible, and well worth reading as a road map for the litigation of similar cases in the future.

Ordinarily, we could now expect a long, expensive, exhausting slog to the Supreme Court. But it may be worth noting that, on the same day as Judge Panner issued his opinion, U.S. Attorney General Eric H. Holder Jr. told reporters that the current administration would effectively end the earlier policy of frequent raids on distributors of medical marijuana. He said that the Justice Department’s enforcement policy would now be restricted to traffickers who falsely masqueraded as medical dispensaries and “use medical marijuana laws as a shield.”

It is not at all clear whether this might signal a change in administration policy toward the use of ayahausca by such entities as the Santo Daime church. Commenting on this case, Mark Kleiman, a nationally recognized expert in the field of crime and drug policy, suggests that the simplest approach would be for the Attorney General to tell the DEA Administrator to draft and publish in the Federal Register a set of procedures and criteria to deal with cases such as this in the future.

We will see.

Let us say that I have been arrested for possession of an illegal hallucinogen. Let us say, too, that I possess that substance, not because it is a sacrament in my church, but because I simply want to experience a hallucinatory mental state. Since I cannot rely on the Religious Freedom Restoration Act, are there any constitutional arguments available to me?

Timothy Leary

Here is the rule to keep in mind. Generally speaking, a legislature can constitutionally pass just about any law it wants, as long as the law implicates only what is called a liberty interest — that is, an interest in staying out of prison — and the law passes the rational basis test. That is, to successfully challenge such a law, you would have to convince a court that the law had no rational basis at all — that the legislature was effectively out of its mind when it passed it. Even though that often seems to have been the case, it is difficult to prove in court.

On the other hand, where a fundamental right is involved, the burden shifts to the State to show that the law is narrowly tailored to satisfy a compelling state interest. That is why it is advantageous to frame a challenge to a law prohibiting possession of a hallucinogen as involving a fundamental right rather than a liberty interest.

Free speech is a fundamental right, guaranteed by the First Amendment to the Constitution. So the question becomes: is there a way to bring my possession of a controlled hallucinogen within the ambit of the Free Speech Clause?

As you would expect, the jurisprudence of the Free Speech Clause is complex, extensive, and not entirely consistent. But there is a body of law that talks about free speech not in terms of speech but rather in terms of freedom of thought. And there is enough Supreme Court language out there condemning “government programs of thought control” to indicate that the state may not attempt to control the contents of my mind. The Supreme Court, according to Harvard law professor Lawrence Tribe, “has insisted that the activities actually going on within the head are absolutely beyond the power of government to control.” In Stanley v. Georgia, the Court asserted that the State “cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts” — and that would include lustful thoughts, racist thoughts, violent thoughts, and, presumably, hallucinatory thoughts as well.

There is, I think, an arguable analogy here between hallucinogens and pornography, which is a mind-altering technology intended to induce or sustain a state of mind that the Court calls prurience — a state of mind characterized, the Court has put it, by “itching, morbid, or lascivious longings.” There are physical instrumentalities for inducing this state of mind, such as books, photographs, and videos. The State may constitutionally prohibit the transport, importation, sale, or mailing of these pornographic instrumentalities, or the public display of pornography itself; but it may not prohibit the private possession of adult pornography in my home.

In Stanley v. Georgia, the defendant had been convicted for possessing pornographic films, which government agents had discovered in his home while searching for evidence of illegal gambling activity. The State argued that it had the same right to protect the minds of its citizens as it had to protect their bodies. But the Supreme Court found it “wholly inconsistent with the philosophy of the First Amendment” to concede to the State “the right to control the moral contents of a person’s thoughts.”

Larry Flynt

But suppose we were talking about, not books or films, but rather a plant that induced prurience, called, say, Obscenia prurientis. If I was charged with possession of pornography because I possessed Obscenia prurientis plants, presumably the outcome would be the same. Pruriogenic plants, just like pornographic books and films, are simply an instrumentality for changing the contents of my mind. As long as I don’t transport, import, mail, or hand out these plants to others, the State presumably has no more interest in my private possession of a pruriogenic plant than in my private possession of a pruriogenic movie.

And this ought to be true even though such pornographic instrumentalities as books and films might look to a court more like the sorts of communicative technologies that the Free Speech Clause was originally intended to protect. If the goal is to protect states of mind from government constraints, then the nature of the instrument used to induce the state of mind ought to be irrelevant, whether it is a pornographic video, an electronic brain stimulator, the drug Lawrence Tribe called obscenamine, or our imaginary plant Obscenia prurientis.

Here comes the analogy. Suppose we were talking about, not Obscenia prurientis, but another plant — say, Psychotria viridis — whose purpose and effect was to induce a temporary state of hallucination, just as the purpose and effect of Obscenia prurientis is to induce a temporary state of prurience. On what grounds should the outcome differ? If the State has no permissible interest in my private possession of an instrumentality to induce a mental state of prurience, why should the State have a permissible interest in my private possession of an instrumentality to induce a mental state of hallucination?

In both cases, we have an instrumentality which is illegal to possess, and whose function is solely to create a state of mind — prurience on the one hand and hallucinations on the other — that is disfavored by the State. Yet the Supreme Court has said that the State cannot constitutionally prosecute me for possessing pornography — indeed, for using pornography, in the privacy of my home, to alter my state of consciousness. And this is arguably true even if the pruriogenic instrumentality is a plant. It is hard to see why a hallucinogenic plant should treated differently.

Here, of course, the State would argue that there were other harms — health risks, the chance that the plants would fall into the hands of children, failure to meet international obligations under the United Nations Convention on Psychotropic Substances — whose prevention constituted a state interest sufficiently compelling to outweigh my First Amendment right to control the contents of my own mind. But at least, under this argument, the burden is on the State to show that such harms actually exist, that the harms are so serious that the State has a compelling interest in preventing them, and that total prohibition is the least restrictive way of preventing those harms.

Now that would be an argument worth having.

In 1980, the United States ratified the United Nations 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.” The treaty classifies substances according to their degree of safety and medical usefulness, with Schedule I representing substances that are considered particularly unsafe and lacking any medical use. Among these substances is dimethyltryptamine (DMT). Parties to the convention — more than 160 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 Perú made a reservation for the use of DMT “by certain Amazon ethnic groups in magical and religious rites and in rites of initiation into adulthood.” Neither the United States nor Brazil ever made a reservation for DMT.

International treaties are recognized by the Constitution as being the law of the land. But, where the provisions of a treaty, such as the 1971 United Nations Convention on Psychotropic Substances, 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.

Now the Convention provides that “a preparation is subject to the same measures of control as the psychotropic substance which it contains,” and defines preparation as “any solution or mixture, in whatever physical state, containing one or more psychotropic substances.” The District Court in New Mexico held that the ayahuasca drink at issue in that case was not, technically, a “preparation” of DMT, and therefore fell outside the treaty. But the Supreme Court, pointing to the plain language of the Convention, held, contrary to the District Court, that boiling constituted preparing, and held that the ayahuasca drink indeed fell within the scope of the Convention.

The Court did not have to further examine the implications of the Convention, however, because, the Court said, the prosecution had failed to show — indeed, even to submit evidence for — a compelling state interest in applying the Controlled Substances Act, which implements the Convention, to the sacramental use of the ayahuasca drink by the UDV. It is unclear what the outcome would be if the prosecution, in the next case, undertook to make such a showing.

But what if you are arrested for possession of the chacruna leaf? Here is where it gets interesting. The official commentary to the Convention notes that natural hallucinogenic materials, such as plants, are not listed in Schedule I, and 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.” Are you protected by the commentary to the Convention? The Supreme Court provided little guidance on that issue. The commentary, the Court held, was irrelevant to the case before it, since what was at issue was the ayahuasca drink, not the leaves from which it was made.

However, as the Tenth Circuit has pointed out, this commentary to the Convention does not constitute particularly strong evidence one way or the other. It was not written by the negotiators or signatories to the Convention. Rather, it was drafted by a single author, published five years after the Convention was negotiated, and is, at best, ambiguous on the question whether a preparation like the ayahuasca drink, as opposed to the chacruna from which it is made, is covered by the Convention. The commentary is thus just not the sort of “negotiating and drafting history” or “postratification understanding of the contracting parties” that courts have traditionally used as evidence of the signatories’ intent.

Still, the interpretation of an international treaty by the United States agency charged with its negotiation and enforcement — that is, in this case, the Drug Enforcement Administration — is usually given great deference by the courts. It is, of course, likely that the DEA would argue against any natural plant exemption to the Controlled Substances Act.

So, the question is not settled. But I would not bet my liberty on the outcome.

NOTE: This blog entry does not constitute a legal opinion or legal advice. Laws change, and situations differ. If you have any questions, consult a lawyer experienced in this field.

At least it was legal until now. Despite the fact that the plant appears to have little potential for either abuse or addiction, and tastes awful, an increasing number of states have passed, or are considering passing, legislation to prohibit the use or possession of the plant. Florida state representative Mary Brandenburg, for example, has introduced a bill to make possession of Salvia a felony punishable by up to five years in prison.

Just another day in the War on Drugs.

Actually, the term War on Drugs is a misnomer. There is no war on penicillin or triamcinolone. Rather, the substances targeted by the War on Drugs have one thing in common: they have psychoactive effects that many people want to experience. These effects may be those, like hallucinations, that the state does not want anyone to experience; or those, like empathy, that the state does not mind people experiencing, but only by means that the state approves. Here are some thoughts about the war.

The War on Drugs is very expensive. So far this year the war has cost $13 billion, with an average annual cost of about $40 billion. That means that the War on Drugs has cost, oh, say, about a trillion dollars — give or take a few hundred billion — in the twenty-nine years since the 1979 crackdown. The War on Drugs has now cost about twice as much as the war in Iraq.

The War on Drugs fosters violence. Prohibiting something that people want inevitably creates a black market in the prohibited item. Black markets, in turn, are inevitably violent, because, being outside the law, legal mechanisms for dispute resolution are unavailable. If you sell me adulterated heroin, I cannot sue you; if you take my money but deliver no cocaine, I cannot complain to the police. While the state monopoly on force is available to enforce ordinary business agreements and prevent fraud and robbery, the only enforcement mechanism available in a black market is what lawyers call, with unconscious irony, self-help.

The War on Drugs fosters corruption. Black markets are inevitably corrupt, because, while they operate outside the constraints of law, they must operate under the surveillance and with the tacit approval of law enforcement. This means that black markets inevitably attempt to corrupt — by bribes, extortion, or intimidation — police, prosecutors, and judges, so that the black market can continue to operate despite prohibition of its product. This corruption then inevitably becomes more widespread. An official corrupted by money or favors from the drug black market becomes susceptible to bribes, intimidation, and extortion regarding other illegal enterprises; and corrupt officials also inevitably involve their peers and subordinates in their corruption.

The War on Drugs creates risks for consumers of drugs. Black markets are anticompetitive and monopolistic, so they inevitably create risks for their consumers, because they operate without constraints on dangerously substandard products. Participants in a black market compete, not on the basis of price or quality or features, which might benefit the consumer, but on the basis of firepower and access to protection, which does not. And consumers who purchase black market products necessarily do so without accurate consumer information, which black markets have no incentive to provide. Thus, in addition to being violent and corrupting, black markets inevitably rip off their consumers, who have no recourse, either legal or competitive, for overpriced or dangerously adulterated products.

The War on Drugs causes crime. Costs necessitated by black market violence and corruption are passed along to the consumer. Monopolistic black market ventures and cartels are not constrained by competition, can create artificial scarcities, and can fix prices. Yet the demand for psychoactive substances remains relatively inelastic, so that higher drug prices in turn correlate, not with less use, but with increased crime to pay the higher prices. These increases in crime tend to be sporadic and unpredictable, and therefore more difficult to control, since the logistics of black markets tend to preclude steady supplies of prohibited products.

The War on Drugs hurts police work. The police have been harmed by the War on Drugs not only by the violence and corruption of the black market, which take the lives and integrity of police officers; but also by distorting the police mission and making police work more difficult. There is, of course, the diversion of resources and attention from other crimes — robbery, rape, murder — to violations of the drug laws. There is also the increasing militarization of the police to deal with the violence inherent in the black market. This militarization is symbolized by the increasing use of SWAT teams to enforce no-knock warrants, with armed police kicking in doors — and, with distressing frequency, the wrong doors — in cases of alleged possession. I know of few police officers who would not, in a minute, trade enforcement of the drug laws for an opportunity to do real police work.

The War on Drugs hurts police-community relations. The War on Drugs plays a significant role in the disintegration of relationships between police and community, as friends and relatives of community members are arrested and incarcerated for minor drug offenses such as simple possession, and the police are increasingly viewed as both corrupt and hostile, and perceived by many community members as just another gang. At the same time, as laws against drugs are widely perceived to be violated with relative impunity, and prohibition visibly fails to reduce the violence and corruption of the black market it creates, there is lessened respect for law in general — a climate of lawlessness symbolized by ubiquitous gang graffiti, residential streets abandoned to drug dealers, the romanticizing and glamorizing of drug violence, and the other “broken windows” of social breakdown. Moreover, to the extent that alcohol and nicotine are legal, and those arrested for drug offenses are overwhelmingly young African American males, there is a widespread perception that the War on Drugs is grounded in generational, class, and, in particular, racial considerations that have nothing to do with addiction or safety.

The War on Drugs overburdens the courts and correctional system. In 2006, there were 1,889,810 arrests for violations of the drug laws, most for simple possession or petty sale, including 829,625 persons arrested for marijuana violations. Courts are swamped with drug cases, at great cost in money and time. To save these costs, plea bargains are common, with consequent overpunishment of minor offenses and underpunishment of more serious ones, and a general erosion of trust in the justice system. And it is clear that the correctional system, including the probation system, is heavily burdened by the need to process and house large numbers of nonviolent offenders — overwhelmingly young African American males — convicted of drug possession or low-level sales. Today, drug criminals comprise over half of federal prisoners, and nearly one-quarter of state criminal offenders. Largely because of the War on Drugs, the US prison population has doubled since 1982 to more than 800,000. Not having to house these nonviolent offenders would sufficiently reduce the number of prison inmates to a point where corrections officers could actually deal, more effectively and safely, with the truly violent offenders who remained.

The War on Drugs erodes civil liberties. The proliferation of SWAT-enforced no-knock warrants in cases of alleged possession is just one aspect of the erosion of civil liberties. Because of the War on Drugs, we are rapidly becoming a surveillance society. According to an article in Time magazine, over 400,000 US government workers, and employees of one-quarter of Fortune 500 companies, are required to undergo drug tests. In 1989, Supreme Court Justice Antonin Scalia wrote that such mandatory urinalysis for US Customs Services employees is “an invasion of their privacy and an affront to their dignity.” But that was a dissent, which meant the Supreme Court ruled the other way. And, in fact, because of the demands of the War on Drugs, the Supreme Court has consistently upheld wiretapping, searches of travelers and their luggage, search warrants for private residences based on the tip of an anonymous informant, police stops of vehicles on the highways, and surveillance of US mail. Justice Thurgood Marshall — in, of course, another dissent — felt the need to remind the Court that there is “no drug exception to the Constitution.” Similarly, Democrat Peter Rodino, chairman of the House Judiciary Committee, futilely opposed a provision of the Anti-Drug Abuse Act of 1986 which allows federal prosecutors to introduce evidence that had been obtained illegally without a warrant, as long as law- enforcement officials seized the material in good faith. “All day long we’ve been fighting the war on drugs,” he said. “Now it seems that the attack is on the Constitution of the United States.”

The War on Drugs hinders scientific research and medical practice. The deformation of social priorities caused by the War on Drugs is epitomized by the debate over the benefits and costs of medical marijuana, where unanswered scientific and medical questions are drowned out by issues of drug policy. The legal climate makes physicians reluctant to prescribe narcotics for relief of chronic and intractable pain, even in hospice settings. In addition, there has been a thirty-year hiatus in serious research on the psychotherapeutic use of hallucinogens and hallucinogenic amphetamines, which might have have been tested in research and therapy in disorders as varied as schizophrenia and alcoholism. And there is no doubt that exploration of other questions of potential importance — the influence of psychoactive substances on artistic creativity, for example, or their effect on spirituality — has been obstructed by fear of legal repercussions.

And what are the benefits? Proponents of the War on Drugs maintain that the war is working, at least in the sense that it makes psychoactive substances more difficult to obtain, and that, by thus limiting their use, it helps prevent both undesirable psychoactive effects and addiction. Even if this claim were true, it is hard to see how this purported benefit is worth the costs, both economic and social, of the war. But I think that the claim faces serious empirical challenges.

The War on Drugs has not made drugs harder to obtain. Indeed, between 1981 and 1998, the price of heroin and cocaine actually dropped, while levels of purity rose — the opposite of what would be expected if the War on Drugs had created a scarcity. Most high school students know where to obtain marijuana, and some slightly smaller number know how to obtain such psychoactive substances as LSD and MDMA. According to a 1999 survey by the U.S. Department of Health and Human Services, almost 90 percent of twelfth graders participating in the survey said that marijuana was “very easy” or “fairly easy” to get, over 47 percent said the same about cocaine, and more than 32 percent said the same about heroin.

The War on Drugs has had little effect on rates of addiction. According to the Drug Policy Forum, in 1914, when drugs like cocaine were available in grocery stores, the addiction rate for all drugs was estimated to be around 1.3 percent of the population. In 1979, when the War on Drugs crackdown began, the addiction rate was still 1.3 percent. In 1998, after nineteen years of war, the addiction rate still stood at 1.3 percent. There is little reason to believe that, if the War on Drugs was halted, the addiction rate would change in any significant way.

The War on Drugs punishes rather than helps addicts. If some psychoactive substances are addictive, in a physical sense, by producing intense cravings for additional use, we have to ask how such addictions are best managed, and at what economic and social cost. If these substances are as addictive as proponents of the War on Drugs maintain, and therefore demand for them completely inelastic, then it is difficult to see how making them more expensive and less safe serves any interest other than punishing the addict. It is even more difficult to see how incarceration for possession or petty sales provides the personal and social help an addict needs to quit. We could offer a lot of educational, counseling, and rehabilitation services with $40 billion a year, and buy a few submarines as well.

The War on Drugs does not distinguish recreational from spiritual uses. It is difficult to generalize among Schedule I psychoactive substances, especially without taking into account the social and cultural setting in which they are used. Does the Schedule I controlled substance dimethyltryptamine have a high potential for abuse? Apparently not, at least based on the experience of Santo Daime and the União do Vegetal churches. Is mescaline addictive? Certainly not, at least based on the experience of the Native American Church. Apart from the attractions, physical and spiritual, of rave culture, in what sense — if any — are hallucinogenic amphetamines such as MDMA addictive? Even the legal but apparently highly addictive nicotine — and even in very high doses, such as are used as a hallucinogen in the Upper Amazon — does not appear to cause addiction when its use is limited to a ceremonial context.

Chewing the leaves of the coca plant (Erythroxylum coca) plays a significant role in traditional Andean culture. Coca acts as a stimulant to overcome fatigue, hunger, and thirst. It is considered particularly effective against altitude sickness. It also is used as an anaesthetic to alleviate the pain of headache, rheumatism, wounds and sores. Coca leaf chewing is most common among indigenous communities across the central Andean region, particularly in the highlands of Colombia, Ecuador, Bolivia, and Peru, where the cultivation and consumption of coca is part of the national culture, and where sharing coca leaves is a powerful symbol of social and cultural solidarity. And the consumption of mate de coca, coca tea, is common among all sectors of society in the Andean countries, and is widely held to be beneficial to health, particularly at high altitudes.

Chewing coca leaves

Doris Rivera Lenz, in an interview with Howard G. Charing, says that chewing coca is part of an Andean culture that knows how to make work into a sacred activity. When sharing coca, a mouthful of leaves is carefully chosen from a decorated chuspa, coca bag, and mixed with llipta or ilucta, alkaline lye, while chewing, to release the active ingredients; the lye is often kept in an ishcupuro, a small decorated gourd hung around the neck, and added to the leaves with a small stick. Sharing coca leaves may be a preliminary to the sacred Andean mesa ceremony, and coca leaves play a crucial part in offerings to the apus, inti, and pachamama — the mountains, the sun, and mother earth. Coca leaves are often used for medical diagnosis and divination.

However, the United Nations Convention on Psychotropic Substances classifies coca in Schedule I, along with cocaine and heroin, as substances that are considered particularly unsafe and lacking any medical use. Under Article 7(a), parties to the convention must prohibit “all use except for scientific and very limited medical purposes.” This classification is based primarily on a 1950 study, widely considered to be seriously flawed, which included the coca leaf as “narcotic drug.”

Coca leaves for sale in the marketplace

This month, the International Narcotics Control Board (INCB) — a United Nations monitoring body that oversees the implementation of the UN drug control conventions — has called for the governments of Bolivia and Peru to abolish all uses of the coca leaf, including coca leaf chewing. In its 2007 annual report, the INCB asks Bolivia and Peru to make possessing and using coca leaf criminal offenses — a move that would affect millions of people in the Andes and Amazon. The INCB is heavily influenced by the United States when making and suggesting policy. The 2007 recommendation reads:

Recommendation 7: The practice of chewing coca leaves continues in Bolivia and Peru. The countries in the region are suffering from the illicit manufacture of and trafficking in cocaine. The Board calls upon the Governments of Bolivia and Peru to initiate action without delay with a view to eliminating uses of coca leaf, including coca leaf chewing, that are contrary to the 1961 Convention. The Governments of those countries and Colombia should strengthen their efforts against the illicit manufacture of and trafficking in cocaine. The Board calls on the international community to provide assistance to those countries towards achieving those objectives.

Coca leaf divination

This recommendation has been widely criticized. Famed Amazonian ethnobotanist James Duke and pharmacologist Dennis McKenna, an expert on psychoactive substances, have condemned the proposed ban. The Transnational Institute, a group that studies drugs and conflict in the region, made the following statement: “The INCB, rather than making harsh judgements based on a selective choice of outdated treaty articles, should use its mandate more constructively and help draw attention to the inherent contradictions in the current treaty system with regard to how plants, plant-based raw materials and traditional uses are treated.”

Some of the criticisms have been quite blunt. Pien Metaal, a researcher specializing in coca issues at the Transnational Institute, put it like this: “The Board is displaying both arrogance and blindness by demanding that countries impose criminal sanctions on distribution and possession for traditional uses of the coca leaf, which is a key feature of Andean-Amazon indigenous cultures. Isn’t it time for this UN treaty body to get in touch with reality and show some more cultural sensitivity?” And the International Drug Policy Consortium said, “The approach adopted in the report towards this complex and sensitive issue demonstrates a surprising ignorance and insensitivity not suitable for a UN body.”

Congresswoman Hilaria Supa Huamán

Even more srikingly, legislators in Peru criticized the recommendation by defiantly chewing coca leaves on the congessional floor. Congresswoman Hilaria Supa Huamán — activist, active member of several indigenous women’s organizations, and congressional representative for the Andean capital of Cusco — initiated the protest. “The coca leaf has existed for thousands and thousands of years,” she said. “It’s part of our agriculture, our food and our medicine. It’s sacred.” And she added: “The United Nations doesn’t know our culture. It doesn’t understand our values.” Dozens of politicians took handfuls and chewed the leaf during what has been described as “a raucous session.”

Jose Garcia Belaunde, the foreign relations minister of Peru, said that Peru’s right to chew coca leaves is protected as an Andean tradition. Bolivian President Evo Morales, who rose to power as a leader of coca growers, has pushed to have coca removed from its current classification as a controlled substance.

So what happened with the União do Vegetal in the Supreme Court two years ago? A little legal history may be helpful.

On November 9, 1924, a Native American of the Crow tribe named Big Sheep was charged with the crime of unlawfully having peyote in his possession. The court refused to allow him to testify in his defense that he was a member in good standing of the Native American Church, or that members of that church used peyote “for sacramental purposes only in the worship of God according to their belief and interpretation of the Holy Bible, and according to the dictates of their conscience.” In remanding the case for further proceedings at the trial level, the Supreme Court of Montana noted that the Montana Constitution guaranteed the “free exercise and enjoyment of religious profession and worship,” but pointedly observed that the liberty of conscience thus secured did not “justify practices inconsistent with the good order, peace, or safety of the state, or opposed to the civil authority thereof.”

There was absolutely nothing remarkable about that observation. The religion clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Yet legislatures make laws all the time which can, under some circumstances, burden the free exercise of religion — laws against murder, for example, that implicitly prohibit human sacrifice. At the time of Big Sheep, the leading precedent in this area was Reynolds v. United States (1878), in which the United States Supreme Court had ruled that the Mormon religious practice of polygamy was not protected by the free exercise clause of the First Amendment — indeed, that the First Amendment offered no protection to any religious act that contravened generally applicable legislation. While Mormons were free to believe that polygamy was a religious duty, they just could not practice it — not because they were Mormons, but because no one could practice it.

This line of reasoning continued to be the model for First Amendment free exercise jurisprudence. In Prince v. Massachusetts (1944), the Court held that a woman was subject to prosecution for violating the child labor laws when she brought her nine-year-old niece with her to sell religious literature on a street corner; in Braunfeld v. Brown (1961), the Court upheld Sunday closing laws as applied to Orthodox Jewish businessmen who closed their shops on Saturday, rejecting the argument that forcing them to close their shops on a second day unduly burdened their religious practice.

However, beginning in 1963, the Court signaled a new approach to First Amendment religious issues. In Sherbert v. Verner (1963), the Court held that a state could not simply deny unemployment compensation to a person whose unavailability for Saturday employment was religiously motivated. Rather, the state had to show a “compelling state interest” for its refusal to grant a religious exception to the regulation. The Court said that “no showing merely of a rational relationship to some colorable state interest would suffice.” Only the gravest abuses, which endangered “paramount interests,” would allow the state substantially to infringe the free exercise of religion. And the Court followed up this new approach in Wisconsin v. Yoder (1972), holding that the state interest in compulsory education was not sufficient to justify the state forcing Amish families, against their religious principles, to educate their children beyond the eighth grade.

This new model of interpretation was first applied to peyote — by a state court, not a federal court — in People v. Woody (1964). The California Supreme Court, following the 1963 decision of the United States Supreme Court, overturned the conviction of several Navajo members of the Native American Church for possession of peyote. The court found that the state had not met its burden of demonstrating a “compelling state interest” to justify refusing a religious exemption to its drug laws.

The effect of this case was predictable. Soon people were lined up at the courthouse doors seeking religious exemptions for drug use — the Neo-American Church, the Church of the Awakening, the Native American Church of New York, and a whole slew of criminal defendants claiming that the marijuana for which they had been arrested was for use in their religious practice.

Not one of these claims for religious exemption for drug use was successful. Of all these claimants, only the Native American Church was able to establish a religious exemption to enforcement of generally applicable drug laws — and sometimes not even then. As late as 1975, an Oregon Appellate Court refused to find that the religious interests of the Native American Church outweighed legislative concern for “the health and safety of the people.”

Finally, in 1990, the United States Supreme Court slammed the door on the whole process.

Alfred Smith and Galen Black had worked as counselors for a private drug rehabilitation organization. They were also both members of the Native American Church, and they were fired from their jobs because they had ingested peyote for sacramental purposes at a church ceremony. When they applied for unemployment compensation, they were determined to be ineligible for benefits because they had been discharged for work-related misconduct. Both the Oregon Court of Appeals and the Oregon Supreme Court, following then-existing United States Supreme Court precedent, concluded two things — first, that the religiously inspired use of peyote fell within the prohibition of the Oregon statute, which “makes no exception for the sacramental use” of the drug; but, second, that such a prohibition was not valid under the Free Exercise Clause. Therefore, the State could not deny unemployment benefits to the respondents for having engaged in that practice.

So far, so good. But the United States Supreme Court reversed the Oregon Supreme Court — and, although the Court struggled to deny it, its own earlier precedents — and held that there was simply no religious exemption from laws of general applicability. As the Court put it:

To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling” — permitting him, by virtue of his beliefs, “to become a law unto himself” — contradicts both constitutional tradition and common sense.

Many commentators were surprised by what they perceived to be a sudden reversal of course by the Supreme Court. There was a perception that the Court, in jettisoning the requirement that the state show a compelling interest before abridging a religious practice, had abandoned marginal and quirky religions to majoritarian tyranny, in contravention of the spirit of the First Amendment. In response, Congress passed the Religious Freedom Restoration Act (1993) (RFRA) — note the provocative title — which in effect enacted Sherbert into law.

Mestre Gabriel, founder of the União do Vegetal

RFRA (pronounced refra) prohibits government from imposing a substantial burden on a person’s exercise of religion, even if the burden results from a rule of general applicability, unless the government can demonstrate that the burden is, first, in furtherance of a compelling governmental interest, and, second, the least restrictive means of furthering that interest. RFRA’s mandate applies to any branch of federal or state government, to all officials, and to anyone acting under color of law. The law is intended to apply to all federal and state law, and the implementation of that law, whether statutory or otherwise, and whether adopted before or after the date of RFRA’s enactment.

The passage of RFRA was the legal equivalent of Congress poking a sharp stick into the Supreme Court’s eye, and the Court responded accordingly. In City of Boerne v. Flores (1997), the Court held that RFRA was unconstitutional as applied to state and local governments.

The Court found that RFRA was a considerable congressional intrusion into traditional state and local prerogatives and general authority to regulate for the health and welfare of their citizens, and was not designed to identify and counteract state laws likely to be unconstitutional because of their treatment of religion. So, as of now, the protections of RFRA run against only the federal government, and do not temper the burdening of religious practices by the application of generally applicable state and local laws. If a Rastafarian is arrested for cultivating ganja in Topeka, Kansas, no matter how sincere his religious motivation may be, RFRA offers no protection.

The União do Vegetal (UDV) is a Brazilian new religious movement which utilizes the ayahuasca drink — which the UDV calls hoasca — in its church services. In 1999, federal agents raided the New Mexico home of a UDV church member who had three drums of ayahuasca. The officials seized the ayahuasca and threatened prosecution for possession of material prohibited by the federal Controlled Substances Act. In response, the church sued the U.S. Attorney General and other federal law enforcement officials, contending that the application of the federal drug laws to the religious use of ayahuasca violated the Religious Freedom Restoration Act.

Although RFRA had been declared unconstitutional as applied to states and municipalities, it was still binding on the federal government. And the UDV was not being prosecuted under the drug laws of any state; rather, its ayahuasca had been seized by the United States, and the UDV argued that the federal government could not articulate a compelling state interest in preventing its religious use of ayahuasca. The UDV sought an injunction requiring the federal government to give the church its ayahuasca back.

Jeffrey Bronfman, Mestre Representante da União do Vegetal nos Estados Unidos

The UDV had two important advantages. First, the UDV looks very much like a church of the sort with which an American court would be familiar — regularly scheduled ceremonies, a hierarchical structure, sober and orderly churchgoers, and a theology recognizably akin to that of Christianity. Indeed, a formal psychiatric study introduced at trial showed that long-term members of the UDV who consumed ayahuasca at least two times a month in religious rituals were, among other things, more reflective, loyal, stoic, slow-tempered, frugal, orderly, and persistent compared to controls. The ayahuasca-using participants also differed from the controls in being more confident, relaxed, optimistic, carefree, uninhibited, outgoing, and energetic, and with higher scores on traits of hyperthymia and cheerfulness. Significantly, on neuropsychological testing the UDV group demonstrated significantly higher scores on measures of concentration and short-term memory.

The second advantage was arguably even more important than the first. The president of the UDV in the United States was Jeffrey Bronfman, who is, unfortunately for the government, an heir to the Seagram’s whiskey fortune — the word bronfman means whiskey man in Yiddish — and second cousin to the profoundly well-connected Edgar Bronfman Jr., Chairman and CEO of Warner Music, among other things. Jeffrey Bronfman was a wealthy man in a powerful family, and he had the commitment and the resources to fight the seizure all the way to the United States Supreme Court.

And to the Supreme Court the case duly went, after both the trial court and the U.S. Court of Appeals for the 10th Circuit handed victories to the UDV, first by issuing a preliminary injunction against the U.S. Attorney General, the DEA, and other government agencies, requiring them to return the ayahuasca that had been seized from the group, and then by upholding the issuance of the injunction. On February 21, 2006, in a unanimous ruling, Justice John G. Roberts Jr. affirmed the trial court’s preliminary injunction preventing the federal government from enforcing a ban on the UDV’s sacramental use of ayahuasca. The Court held that the government had simply failed to demonstrate a compelling state interest in preventing the 130 or so American members of the UDV from practicing their religion.

Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue. Applying that test, we conclude that the courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV’s sacramental use of hoasca.

Of course, the case is not over. All that has been litigated is the propriety of the initial preliminary injunction. There may yet be a trial, although the chances of an ultimate government victory over UDV appear to be slim.

In 1981, Loren Miller, director of California-based International Plant Medicine Corporation, took a sample of ayahuasca back to the United States. Miller then patented it with the U.S. Patent and Trademark Office, claiming a new plant variety he called Da Vine, and in 1986 obtained exclusive rights to sell and breed the plant. It was not until ten years later that Amazonian native people became aware that one of their sacred plants was now under U.S. patent law. By 1998, Miller had received, and ignored, repeated requests from indigenous groups to give up the patent.

Finally, the Coordinating Body for Indigenous Organizations of the Amazon Basin (COICA), a group based in Ecuador and representing over 400 indigenous groups from eight countries, decided to take action. “Our goal is to have the ayahuasca patent annulled, and to teach all international biopirates a lesson,” said Rodolfo Asar, communications director of COICA.The organization informed its members that Miller was an “enemy of indigenous peoples,” and that “his entrance into all indigenous territory should he prohibited.”

A war of words ensued. The organization posted a notice on its website stating that it would not be responsible for any physical harm to Miller if he ventured into indigenous territory. Miller said he was given a sample of the plant by an indigenous community in Ecuador, but he refused to identify the community on the grounds that he wanted to protect residents from COICA, which he called a terrorist organization that had ruined the reputation of his business.

Charging that the patent was improperly issued, indigenous groups challenged the claim at the U.S. Patent and Trademark Office, with the help of two Washington-based organizations, the Center for International Environmental Law and the Coalition for Amazonian Peoples and their Environment. The Plant Patent Act of 1970 was intended to protect growers breeding new plant varieties, and requires the person requesting the patent to be the original breeder. Since ayahuasca is widely used throughout the Amazon, and, botanical experts said, the patented plant was exactly the same as the natural variety, Miller could not claim to have been the “inventor” of the plant, and thus was not eligible for a patent. The shamans asked that the validity of the patent be reviewed on these grounds, and that request was approved.

Indigenous people of the Amazon have learned how to use photo opportunities. Querubin Queta Alvarado and Antonio Jacanamijoy Rosero, spiritual leaders of their Amazonian tribes, appeared at the headquarters of the U.S. Patent and Trademark Office wearing traditional garb — beads, feathers, and piranha teeth. Under their arms were official protest documents prepared by their attorneys.

In the fall of 1999, the PTO nullified the patent on the grounds that a specimen like Miller’s was on display at Chicago’s Field Museum at least a year before he applied for a patent. “Our shamans and elders were greatly troubled by this patent,” said Antonio Jacanamijoy Rosero. “Now they are celebrating.”

The celebration did not last.

While the PTO had accepted the arguments that the claimed plant variety was not distinctive or novel, it had not acknowledged the argument that its religious value warranted an exception from patenting. In apparent violation of its own procedures, the PTO allowed Miller to submit new evidence and arguments, centering on the differences between his ayahuasca plant and museum reference plants. In January 2001, without having heard opposing views, the PTO reversed its rejection and, in April, issued a certificate allowing the patent to stand for the remaining two years of its term.

Ironically, after all his legal efforts, Miller was left with a patent that was virtually valueless. The patent he received protected only the specific genome of the patented plant and its asexually reproduced progeny — that is, exclusive rights over nothing more than his original plant and specimens grown from its cuttings. It did not give him rights over any other specimens of the ayahuasca vine, even specimens that might be identical in appearance.

Under the law, a patent applied for before 1995 expires seventeen years from the date it was originally issued. The ayahuasca patent expired on June 17, 2003. It cannot be renewed.