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Martha Hartney is an attorney in Boulder, Colorado, who has been working with the Church of the Eagle and the Condor to fight for the legal use of ayahuasca as a sacrament for religious groups practicing within the United States. Hartney will be presenting about the legal status of ayahuasca as a religious sacrament at Chacruna’s upcoming conference, Sacred Plants in the Americas II, taking place April 23–25, 2021.
As it stands today, only two ayahuasca churches, the Centro Espírita Beneficente União do Vegetal (UDV) and Santo Daime, are legally permitted to possess and use ayahuasca as a sacrament in their religious practices. The fact that DMT, the psychoactive component of the ayahuasca brew, is considered a Schedule I substance under the Controlled Substances Act comes into conflict with the Religious Freedom Restoration Act (RFRA), which states that the “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” This conflict creates a lack of clarity and ambiguity around the legal implications of using ayahuasca as a religious sacrament, leaving many ayahuasca churches in a grey area.
In this interview, Martha Hartney details the current legal status of ayahuasca, how it is impacted by RFRA, and about how we can collectively work towards securing the right to drink ayahuasca in bona fide religious settings. Hartney also shares about the increase in seizures of ayahuasca at the US border since the arrival of the pandemic and the actions being taken to recover the sacrament.
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*This article is not intended as legal advice. Certain names, dates, and locations have been changed to protect people and ensure anonymity. This article is for information and education purposes only and does not constitute an attorney-client relationship with the reader.
Jasmine Virdi: I’m curious to hear more about your personal background and how you got into the legal work you’re doing with ayahuasca.
Martha Hartney: I’m sure you hear from a lot of people that their stories are very circuitous. One thing that might be unusual for me is that I came to this path very late in life. I was 47 years old when I had my first ayahuasca experience. Before that, I was a hardcore, “just say no to drugs” kind of person and mother. But, right as I came into menopause, I ran out of gas in my energetic tank. I was suffering and in a lot of pain personally. For a lot of women, menopause is a difficult time and anything you haven’t addressed surfaces. I was running out of steam and looking for help at a difficult time in my life.
As I witnessed people heal right before my eyes from some very challenging and intractable issues, I concluded that it’s wrong for such healing to be illegal.
Some friends suggested I try ayahuasca, but I resisted for the longest time until I felt I had no good options. I had my first ayahuasca experience with a church in the Pacific Northwest and it changed everything. That experience forced me to reassess my previous judgements about drugs and I had to accept there were profound psychological and spiritual benefits. A lot of people talk about how they receive “a message from the medicine.” As I witnessed people heal right before my eyes from some very challenging and intractable issues, I concluded that it’s wrong for such healing to be illegal. And so, I started learning more about the legal framework for ayahuasca and began working with the Church of the Eagle and the Condor (CEC).
JV: What is the current legal status of ayahuasca in the US today? How is ayahuasca affected by the Religious Freedom Restoration Act (RFRA)?
MH: In terms of ayahuasca legality in America, it is illegal for all but two exceptions. It falls under Schedule I as a controlled substance because it contains DMT. Other countries treat it differently, but in the United States, decoctions and infusions of plant materials that contain DMT are illegal. The way the RFRA plays into it is that it is quite clear that there is precedent for the legal, religious use of ayahuasca for bona fide religions. It is supposed to be protected under RFRA, but there are only two churches that have obtained an explicit exemption from the Controlled Substances Act (CSA): the Santo Daime and the União do Vegetal. These two churches were granted exemptions in 2006 by court order. However, their cases didn’t settle the issue for everybody else. These two churches only received exemptions through litigation, not by petitioning or asking nicely. They had to fight for their right to use this sacrament.
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JV: Can you tell me more about the increase in seizures of ayahuasca at the United States borders during the pandemic? Why do you think they have increased? What does it mean for ayahuasca churches?
MH: Chacruna and the Church of the Eagle and the Condor are asking the government what is behind all of this. For a long stretch, ayahuasca was coming across the border; it wasn’t getting tested or seized very often. Then, in March, around 80 shipments were seized. This may be in part because there are fewer people coming across the border and customs agents had more time to inspect packages. Since the DEA has made it clear that the agency doesn’t plan to pursue criminal sanctions against bona fide churches working with ayahuasca, I wonder if the DEA may be passing the buck to Customs and Border Protection in a way. But we don’t know if there has been any communication or coordination between the two agencies.
The Church of the Eagle and the Condor, my one and only ayahuasca-related client, has decided to move forward legally in order to find out what the government is doing with this seized ayahuasca. How are they deciding which of the recipients to give the formal notice to that would trigger their ability to request relief from these seizures? We do know that there have been several arrests. One by Homeland Security and two at the state, local level. One was in Florida, another in Washington, and one in Arizona. The DEA is not making these arrests; rather, other agencies are doing it.
JV: Are the arrests just because of the packages received in the person’s name? Or is it because those people have been caught practicing?
MH: There’s a lot of mystery around that, and it is our aim to clear up some of that mystery. We want to understand how the government is deciding who they are going to arrest. Who is doing an investigation into deciding which people, which churches, which organizations they are going to follow-up with and which ones they are going to let slide? One would think that recipients who have had their ayahuasca seized should get a formal notice about their seized property. However, in many cases, the recipient simply never hears from the government. Legally, the formal notice is very important because it triggers another statute that allows the person who had their product seized to ask for it back—to trigger due process. If they don’t send the formal notice, there is a legal impasse between the government and the recipient.
If it were the Catholic Church and they had their sacramental wine seized, the Church would spare no expense or effort to get it back because that sacrament is sacred.
We are trying to find out about government’s process for deciding whether or not to give that formal notice. If it were the Catholic Church and they had their sacramental wine seized, the Church would spare no expense or effort to get it back because that sacrament is sacred. In the same way, the Church of the Eagle and the Condor, its board of directors, Joe Tafur, Belinda Eriacho, and Rodney Garcia, have decided that they are prepared to ask the government to give their sacrament back.
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JV: Can you tell me more about the DEA’s Religious Freedom Restoration Act (RFRA) Guidelines? When did they come about and why? Does the DEA have the authority to assert such guidance?
The DEA RFRA Guidelines are a barrier, not a real process. They act as a gatekeeper and nothing more. No one has ever won a petition or an exemption through the DEA RFRA Guidelines.
MH: The DEA RFRA Guidelines consist of a two-page document that was published in 2009. There is an article written by Brad Bartlett in which he argues that the DEA RFRA Guidelines are unenforceable and the DEA has no authority to register religious applicants. I agree with that assessment. The DEA RFRA Guidelines are a barrier, not a real process. They act as a gatekeeper and nothing more. No one has ever won a petition or an exemption through the DEA RFRA Guidelines.
There have been two churches I know of that use cannabis as their primary sacrament that were denied. One of those denials went to a circuit court and the court upheld the denial. Additionally, no other church using ayahuasca had come forward until Soul Quest Church of Mother Earth. In 2016, it was requested by the DEA that Soul Quest, along with Ayahuasca Healings, should petition because they were using ayahuasca openly. Soul Quest opted to do so; Ayahuasca Healings disappeared off the map. I imagine they were not willing to put themselves in jeopardy by applying. And who can blame them?
In 2017, Soul Quest petitioned and their petition sat for three years. The only response their lawyer received was an unrelated Freedom of Information Act (FOIA) request from a third party wanting to see all DEA RFRA petitions. A FOIA Request allows citizens to ask the government about its activities in a particular domain. That is the only contact the DEA made with Soul Quest’s legal team. Hearing nothing else in three years, Soul Quest finally filed in a District Court in Florida in August 2020 to press the government to give them their exemption. Since they filed, the parties have had two stays of proceedings pending negotiations. The second one is supposed to end in April 2021. My view is the government is more than happy to drown this church in paperwork and drain their resources, which I think is horribly unfair for churches of modest means.
JV: How could one judge the sincere religiosity of anything, as the DEA is purporting to do?
It boils down to one question: who decides what is sufficiently religious enough to warrant RFRA protection, under what authority, and using what criteria?
MH: It boils down to one question: who decides what is sufficiently religious enough to warrant RFRA protection, under what authority, and using what criteria? Just a little background: RFRA contains no criteria for deciding which churches should be allowed to use ayahuasca. RFRA did not change the CSA in any way to empower the DEA to make that decision and Congress has never spoken on the matter.
What we do know is that RFRA provides both a sword and shield. A sword is a claim against the government and a shield is a defense against criminal prosecution or regulatory burden. The complete prohibitions of the CSA are a burden on the religious use of ayahuasca. We know that the religious use of ayahuasca is a protected use under RFRA. The question becomes, then, who gets to decide which churches get to use ayahuasca legally and which don’t. I don’t think the DEA is the right agency to make that decision. It is like giving the keys to the henhouse to the fox.
If one claims a religious exemption and it is from the heart and sincerely held, that is a matter of fact, not of law. It is merely a credibility assessment, rather than a legal assessment of what is religious and what is not.
Which religions are better than others is what it comes down to, and we get that fundamental question wrong all the time. We need to be very cautious in deciding which religions are sufficiently religious enough to warrant RFRA protection, particularly with the many indigenous-based practices and belief systems that are deeply spiritual, but don’t necessarily have the same dogmatic structure as Western religions. I don’t think we want the government making that choice. If one claims a religious exemption and it is from the heart and sincerely held, that is a matter of fact, not of law. It is merely a credibility assessment, rather than a legal assessment of what is religious and what is not.
JV: If the religious use of ayahuasca becomes acceptable in the US, do you think it will have a resultant effect on other countries?
MH: Absolutely. As the US goes, so goes the rest of the world. The US is unusual in the international community because of our staunch commitment to religious freedom, particularly in the conservative realms. Conservatives on the right side of the political spectrum are very committed to religious freedom for their own ends, and it also applies just as well to the left side of the spectrum. The US basically started the War on Drugs in the 1970s, and we brought many other countries in to fight our war. Now that we are starting to realize that this isn’t actually working. Once the US starts to relax about psychedelics, I think the rest of the world will follow suit.
JV: How do you think the DEA could be better allocating its resources?
MH: The agencies have to follow the law that they have been given. The DEA, specifically, is faced with the fact that it doesn’t have the authority it needs to regulate religious use of ayahuasca under the CSA. Ultimately, the best use of resources is to get Congress to act. I think what we need is a model act for plant medicines, and I think the DEA should also be lobbying for this legislative reform.
JV: The last question is about the Church of the Eagle and the Condor. You mentioned that you were doing work with them, and I am eager to know more about the fundraising campaign that went on recently.
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MH: That was a beautiful collaboration between Chacruna and the Board of the Eagle and the Condor. When the CEC Board decided they were going to step forward to find out what was going on with the increase in seizures and to request their seized ayahuasca back, that was a big commitment on their part. The CEC is a very small church with only 40 to 50 members, so it is not like the church has deep pockets where they can go and vindicate their religious rights and help everybody do the same.
We decided to launch a fundraiser to help create a legal fund to pay the lawyers to do it. Personally, I’ve been working on this case pro bono for three years. But we need a team, not just one person. And we need to be able to pay the best minds to do this work so we have the best chance of succeeding and making good law for other churches along the way. The Church has raised close to $50,000; our goal was $100,000, so we are halfway there. We will use it to pay our legal team who have agreed to low pro bono rates for their efforts in order to stretch the impact of this fund as far as possible. Once the CEC has committed to the course of action, we need to be prepared to get them an exemption from the CSA in order to provide safety and security for the church members and board. The CEC is stepping into a danger zone by stepping forward. I want to make sure we do not let them down.
Art by Trey Brasher.
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