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In February 2021, the Church of the Eagle and Condor (“CEC”) and the Chacruna Institute joined forces to initiate the Ayahuasca Religious Freedom Initiative (“Initiative”). The Initiative anticipated a two-part process: first, seeking open records disclosures from the government to understand how it views and handles ayahuasca; and second, pursuing the legal recognition of the CEC as a legitimate ayahuasca church founded in the United States based on indigenous beliefs. This article reviews the insights gained to date from the government’s disclosures, or lack thereof, to the Initiative’s public records requests.
Discover the Indigenous Reciprocity Initiative of the Americas
On March 16, 2021, lawyers for CEC and Chacruna simultaneously filed Freedom of Information Act (“FOIA”) requests on U.S. Customs Border Patrol (“CBP”) and U.S. Drug Enforcement Agency (“DEA”). The requests were nearly identical to both agencies, and requested the following information:
- The total number of seizures of ayahuasca by CBP or other federal government agencies in 2020, including a breakdown of the geographic distribution of where the seizures were made, the place of origination of packages allegedly containing ayahuasca, and the quantity of ayahuasca seized or destroyed.
- Any and all documents that deal with or address interceptions, seizures, disposition, or destruction of ayahuasca, including any substance that resembles or is suspected to be ayahuasca or any other substance containing DMT, in 2020;
- Any and all documents that deal with or address CBP notification to, or contact with, persons suspected of importing ayahuasca into the United States in 2020;
- Any and all documents which deal with or address CBP protocols in 2020 for interception or seizure of ayahuasca, including, but not limited to, agency protocols for: training related to the seizure of ayahuasca, search, notification, testing, storage, return or forfeiture; and,
- Any and all documents, communications, procedures, policies, protocols, matrices, or decision trees relating to whom CBP determines shall receive the agencies’ “official notice” triggering the availability of relief under 19 CFR §171 et seq.
- Any and all communications in 2020 to or from the CBP, U.S. Department of Justice, U.S. Department of Homeland Security, U.S. Postal Service, U.S. Food and Drug Administration, U.S. Drug Enforcement Administration or State or local law enforcement that deal with or address the interception, destruction, or seizure of ayahuasca in year 2020.
Given the alarming and noticeable increase in ayahuasca border seizures in 2020, the main intent of these initial requests was to see how many seizures happened that year and if the government had a specific policy regarding these seizures.
Given the alarming and noticeable increase in ayahuasca border seizures in 2020, the main intent of these initial requests was to see how many seizures happened that year and if the government had a specific policy regarding these seizures.
In late April 2021, CBP released its first set of responses to these requests. The first concerning disclosure was that the government does not track seizures specifically under the category of “ayahuasca,” but rather, simply tracks a broad category of DMT seizures every year without differentiating between ayahuasca, smokable DMT, toad medicine, or other forms of DMT. The total number of DMT shipments intercepted at the border in 2020 by CBP was 966.
When pressed by CEC’s lawyers, CBP was able to sort through these 966 and identify information in the seizure documents that identified the seized materials as brown liquid or brown paste. Using this criteria, 244 cases of seizure of brown liquid or paste were identified in 2020. The actual number of ayahuasca seizures was lower than 244 because 5-MeO-DMT (“toad medicine”) was noted in at least 24 seizures, and 6 seizures were noted as 4-AcO-DMT (a semi-synthetic, similar to psilocybin). Therefore, it appears there were approximately 210 ayahuasca seizures at the border by CBP in 2020. In addition, ayahuasca seizures made up approximately 22% of all DMT seizures at the border in 2020. This is useful information to understand that non-ayahuasca DMT appears to be a much more common seizure at the border.
The next thing the Initiative learned through the FOIA requests is that the government summarily destroys all Schedule I drugs (including ayahuasca) it seizes at the border. While there may be some nominal notice placed in the shipping containers to intended recipients that their shipment was seized, there is no right to appeal the destruction. There is no opportunity to be heard. The government does not ask recipients if they have a religious liberty argument to avoid the destruction. The material is just summarily destroyed. Clearly, this means there is no due process provided to people working with ayahuasca as a religious sacrament.
CBP did disclose a “Seized Asset Management and Enforcement Procedures Handbook,” dated January 2002, that it said explains the CBP policies related to seizing and destroying controlled substances like ayahuasca. Unfortunately, the manual was heavily redacted, so more than half of the manual can’t be read or reviewed. While CBP did cite certain exemptions provided for under FOIA to justify the heavy redaction, there are also other provisions of FOIA that require a more complete disclosure of policies that effect the general public (see, e.g., Milner v. Department of the Navy, 562 U.S. 562 [2011]). Lawyers for the Initiative believe the CBP has not complied with the law in regard to this document and therefore are appealing the agencies decision to overly-redact it. An appeal of these redactions should be submitted by early July 2021.
With respect to governmental correspondence between agencies regarding ayahuasca, CBP responded as follows:
CBP’s Office of Information Technology has been tasked to search for responsive records. Should there be any additional guidance specific to ayahuasca, they will be located during this search. Currently there is an eight to ten month wait for these searches. Once this is complete, FOIA will notify you and complete your request.
To date, no emails, internal memorandums, legal opinions, or other communications between any federal agencies have been released regarding ayahuasca. Lawyers for the Initiative are considering whether or not this refusal to provide this information, and the ten-month extended delay suggested above, amounts to a violation of FOIA. If the government refuses to provide documents required to be disclosed, lawyers for the Initiative could seek judicial review to force the disclosure and recover their attorneys’ fees.
While CBP has at least provided some response to the initial request, DEA has completely stonewalled the Initiative to date.
While CBP has at least provided some response to the initial request, DEA has completely stonewalled the Initiative to date. On April 16, 2021, the DEA responded the first time to the request as follows:
Good morning Mr. McAllister:
Thank you for your patience during our processing of your request. Unfortunately, our office is still working remotely due to the continuing pandemic. The move to a fully remote posture has created a significant delay in the processing of requests. For that reason, it would be irresponsible for me to offer a specific date by which processing in this case will be complete.
With that being said, please be assured that we are working through the backlog as quickly as possible. May we trouble you to bear with us just a bit longer?
Should you have any additional questions in reference to your request, you may contact myself at the email address referenced in the signature block of this correspondence. You may also contact our Customer Service Hotline Representative at 571-776-2300. Again, thank you for your patience.
Best,
[name redacted]
Paralegal II (IBSS Contractor)
Drug Enforcement Administration (DEA)
Freedom of Information and Privacy Act Section (FSRN)
After pressing the DEA for an estimated timeframe for response, the administration restated that it cannot give an estimate of time to respond, a flagrant violation of FOIA, which allots government agencies 20 days to respond and an additional 10 days for complex requests. But nothing allows the government to completely refuse or evade response. Therefore, it is clear at this time that the DEA is violating FOIA in response to the Initiative’s request. Initiative lawyers are considering their legal options at this time in light of the DEA’s obstinance.
On page six of that denial letter, the DEA revealed that it had conducted a health and safety assessment of ayahuasca in July 2020, citing “Ayahuasca: Risks to Public Health and Safety (DEA Diversion Control Division, Drug and Chemical Evaluation Section, July 2020).” Citing this study, the DEA argued that ayahuasca is dangerous to human health and can cause the following effects: hallucinations, agitation, tachycardia, confusion, heightened blood pressure, vomiting, seizures, respiratory arrest, and cardiac arrest.
Concurrently with the Initiative FOIA requests, the Soul Quest case is ongoing in federal court in Florida, with Soul Quest seeking judicial recognition of its ayahuasca practices. While the Soul Quest case was pending, Soul Quest agreed to voluntarily engage in the DEA administrative process to seek an exemption from the Controlled Substances Act for its ayahuasca use. On April 16, 2021, the DEA issued a formal denial of Soul Quest’s petition for an exemption from the CSA under the Religious Freedom Restoration Act. On page six of that denial letter, the DEA revealed that it had conducted a health and safety assessment of ayahuasca in July 2020, citing “Ayahuasca: Risks to Public Health and Safety (DEA Diversion Control Division, Drug and Chemical Evaluation Section, July 2020).” Citing this study, the DEA argued that ayahuasca is dangerous to human health and can cause the following effects: hallucinations, agitation, tachycardia, confusion, heightened blood pressure, vomiting, seizures, respiratory arrest, and cardiac arrest.
Recordings are now available to watch here
Seeing a reference to an internal risk assessment memo, the Initiative submitted an additional FOIA request to obtain this document on June 2, 2021. The Initiative requested as follows:
1. Please provide the specific document titled “Ayahuasca: Risks to Public Health
and Safety (DEA Diversion Control Division, Drug and Chemical Evaluation
Section, July 2020).”
2. Any and all documents that deal with or address DEA protocols from
2016–2020 for interception or seizure of ayahuasca, including, but not limited
to, agency protocols for: training related to the seizure of ayahuasca, search,
notification, testing, storage, return or forfeiture; and,
3. Any and all documents regarding the religious exemption of ayahuasca from
the Controlled Substances Act, including, but not limited to, office of legal
counsel memoranda, position papers, white papers, internal opinions,
research constituting the basis for decision-making regarding ayahuasca
and/or pertaining to the religious exemption of ayahuasca.
As of this writing, the DEA’s deadline under FOIA has not passed to respond to this new request. However, the Initiative is doubtful, given the DEA’s prior lack of a response, that it will receive any substantive response in the near future.
the government is not currently providing any due process around the seizure of ayahuasca to people using ayahuasca in a religious manner, but is instead summarily destroying any ayahuasca discovered in shipments
The Initiative efforts to date have uncovered important realities of the way the government handles ayahuasca in the United States. First, while it appears that ayahuasca seizures are increasing, they remain a small percentage of the overall DMT seizures coming into the country. Next, the government is not currently providing any due process around the seizure of ayahuasca to people using ayahuasca in a religious manner, but is instead summarily destroying any ayahuasca discovered in shipments Finally, the DEA, in particular, appears to be obstinate in its refusal to release information regarding ayahuasca seizures. Given the lack of disclosure of any internal correspondence from the government and the DEA’s complete failure to respond, it appears Initiative lawyers may need to seek judicial help to force compliance with the law and shine light on the government’s practices around ayahuasca. Therefore, it is imperative that the affected community continue to monitor and support this historic Initiative.
Art by Trey Brasher.
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