Robert Heffernan

Robert Heffernan

Rob Heffernan is an independent researcher and activist who has been involved in the vegetalismo and Santo Daime ayahuasca traditions for 17 years. He was a member and chairman of the Santo Daime US legal committee for a number of years, and has recently begun collaborating with the Ayahuasca Defense Fund.
Robert Heffernan

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We are at a unique juncture in the emergence of ayahuasca into global culture. It seems its use is growing, especially throughout the USA, in many forms: from organized Brazilian religions, like the UDV and Santo Daime, to various more or less traditional forms associated with Peruvian and Columbian lineages, to extremely syncretic neoshamanic uses. Outside of the context of the Brazilian ayahuasca religions, many people who follow these practices share a fear of illegality.

Despite the growing number of “underground” ayahuasca circles in the US, for several years now, the DEA seems to have chosen not to pursue or prosecute ayahuasca use unless circumstances force their hands. They seem to realize it doesn’t make much sense to direct resources towards a spiritual plant medicine from the Amazon that is used for healing and insight, especially when they have a nationwide opioid epidemic and serious problems with methamphetamine and new, dangerous synthetic compounds.

It appears they are choosing tolerance over persecution, even though only the UDV and some branches of the Santo Daime can legally use ayahuasca as part of their religious ceremonies.

Yet, this tolerance could quickly change, due to a number of factors: a high-profile case where someone gets injured or dies; a media exposé that catches the attention of conservative religious political forces; a Timothy Leary-like character who brings national exposure to him or herself; internal conflicts and accusations from within the ayahuasca community, or revelations about financial impropriety or tax evasion.

Let’s also be cognizant that the Justice Department is seeking the ability to prosecute cannabis in states where it has been legalized; ayahuasca could eventually come into its crosshairs as well.

So it behooves the ayahuasca community to use this grace period to understand the legal issues and social milieu that ayahuasca is nested in, and to begin to organize to ensure its continued use in a healthy and responsible way. I offer below seven best practices that can help empower ayahuasca-using groups to protect themselves.

Let me begin by making some caveats and disclaimers. These practices will not, in and of themselves, make your use of ayahuasca legal. They are not formal legal advice, since I am not a lawyer and you are not my client. They do not necessarily reflect the views of any group that I am associated with. And, most importantly, they are not the final word on how to comport and organize yourself. Hopefully, they will stimulate thought and responsible practices.

1. Be Attentive to the Health and Well Being of Participants

This is the most important practice from which all the others flow. It was a component of the UDV and Santo Daime court cases when considering if the use of ayahuasca was safe.

+ Conduct face-to-face interviews and screenings with potential participants.

+ Review their medical, psychological and spiritual history using a standardized form.

+ Review any medications that are being taken.

+ Require that a waiver be signed.

+ Provide a statement of ethical conduct that you promise to abide by.

+ Be prepared, and have training for, spiritual, psychological, and physical emergencies.

+ Have a detailed orientation about the ceremony for participants and follow up with them in the days after it’s over. Have resources to offer for integration. 

2. Document the Core Beliefs, Practices, History, Tradition, and Lineage of Your Church or Spiritual Congregation

The term “church” can sometimes be a trigger to those of us who were brought up in oppressive congregations. Yet, the term refers to spiritual communities, assemblies, fellowships, temples, circles, etc. If you can show you are a church whose use of ayahuasca is essential to your religious practice, then you may be protected under the Religious Freedom Restoration Act. Of course, this means you need to actually be a spiritual congregation in a meaningful sense of the word. Therefore, it’s important to document what your practices and beliefs are and how the use of ayahuasca is fundamental to them.

There is a list called “the Meyers’ criteria” that is likely to be used to evaluate whether you can rightfully be categorized as a religion. I’ll emphasize some of the key components below.

+ What are your ritual norms: songs, music, prayers, invocations, objects, layout of space, structure of ceremony?

+ Are your beliefs comprehensive? Do they relate to an overall approach to life? To matters of life, death, and purpose? To morals and ethics? Or are they focused simply on drinking ayahuasca?

+ Do you have an actual ongoing congregation who come together to practice, pray, meditate, or sing? Or is it similar to a paid retreat, like you find in ayahuasca centers in South America or at New Age centers in the US providing other alternative healing modalities? This last point is important. If you are structured and situated like a paid therapeutic retreat, you may not be able to claim protection under the Religious Freedom Restoration Act. Many people who lead ceremonies and communities have not given a great deal of thought to this topic. I suggest that you do this exercise: Try to engage in an inquiry to see if your practices correspond to the Meyers’ criteria. It may be necessary to make some structural changes in your group to better situate yourself; this is all part of the process of inquiry and exploration.

3. Secure Your Ayahuasca

+ Keep it in a locked refrigerator, cabinet or other secure space.

+ This is a key component that helps address the government’s concerns about diversion outside the religious context and recreational use. It is a good safety measure to ensure that only an authorized person has access to ayahuasca. It will also help prevent a young person from inadvertently having access to it, as well as prevent theft.

+ Keep track of your inventory.

+ This also is a key concern of the government regarding diversion. If you can account for every drop, you can show it is staying within your community; it’s also common sense to be able to meticulously account for your sacred medicine.

4. Use Only One Sacred Medicine or Sacrament

If you are using multiple substances—especially other controlled substances, such as San Pedro, psilocybin mushrooms, or even cannabis—it will be hard to argue that ayahuasca is essential to your religion. This isn’t denying that various sacred medicines can play complementary roles in one’s practice; yet, legally, and practically, if a multitude of substances are being claimed as essential to the religion, it calls into question whether one really has a coherent spiritual practice and doctrine. There are existing precedents regarding this.

5. Consider Consulting with Lawyers About Incorporating as a Church

This can empower you in a number of ways: it can help build a legal foundation; firm up the integrity of your endeavor by consideration and articulation of numerous administrative and ethical questions; bring clarity and, perhaps, some protection in regard to handling money, land use, liability issues, etc. Even if you don’t actually incorporate, yet follow the norms and guidelines that other churches and non-profits do, you will cultivate the ground of ethical conduct and future legal protection.

6. Don’t Consider Seeking an Exemption Without Consulting Experts

If you have an interest in gaining an exemption, it is important that you seek the counsel of experts in the area of ayahuasca case law and religious law; lawyers and academics who have published about ayahuasca legal cases; groups like the Ayahuasca Defense Fund; and members of the Santo Daime and UDV, and their lawyers, who have gone through a significant legal process, who may be able to help answer some of your questions and direct you to other lawyers and experts. It’s important to consider that a lawyer who may be at the top of his game in another area may not really understand the nuances and complexities involved in the legal situation pertaining to ayahuasca. It is of fundamental importance to avoid messianic urges and the desire to launch a solo flight without significant backup from the larger community. What you do in the legal realm might have consequences for the ayahuasca community, not only locally, but also globally!

7. Be Discreet. Do Not Publicly Promote Ceremonies

If you publicly promote your ceremonies, you risk attention from the DEA and media. This can have a domino effect; you might bring attention, not just for yourself, but to the broader community who are not seeking attention. Also, the commodification of ayahuasca is problematic in and of itself.

We need to cultivate a collective sense of responsibility, care, and discretion in support of right to the  use of this sacred medicine without prosecution, as we protect the health and well being of participants. Again, this is not a recipe for legality or success, but an invitation for the ayahuasca community to consider what practices will help empower protection for the greater good.

Note: The author thanks Bia Labate for her encouragement and feedback in writing this article.