By Hamilton Hudson (*), written especially to this blog (**)

You may have seen the links and ads going around Facebook claiming someone launched the first public, LEGAL Ayahuasca church in the USA!!! And wow! They’re so excited to share it with you because it’s true!

No, it’s not.

From their website:

“How are we able to actually bring Ayahuasca to America so openly, publicly, and legally?”

Trinity, the nom de plume of the author of AyahuascaHealing.com and supposed owner of Ayahuasca USA, has the answer. He’s pictured on the top right of the homepage shirtless, in a fedora, praying in front of the pyramid of Kukulkan.

His legal proof begins about halfway down the page:

“In pioneering the first public, legal Ayahuasca USA Church…”

This should already have raised a red flag. The fact is, there is no legal precedent permitting this kind of “church” to use Ayahuasca in the USA, which means yes, “pioneering” is necessary: which, if we take a lesson from drug war history, will probably mean getting arrested.

His claim of “first” is baseless. This is not the “first public, legal Ayahuasca USA Church.” That is the Christian organization O Centro Espírita Beneficente União de Vegetal (The UDV), made famous with the Supreme Court case Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418 (2006).

Yes, the UDV won a Supreme Court case protecting its sacramental use of Ayahuasca. No, that protection does not extend to quasi-religious 4-day “retreats” with Heart Energy Medicine Integration Workshops and shamanic healings performed by Kumbooja Banyan Tree for a suggested donation of $1497–1997.

The other legally-protected Ayahuasca Church in the USA, Santo Daime, drinks ayahuasca in church services. They sing out of the hymnal, stand up, sing more, sit back down, take the Eucharist—just like regular church. Many services are in churches. The deities they worship are Jesus, God, Mary, etc. It is about as far from a neoshamanic ritual in prefabricated tipis appropriating ceremonial techniques from indigenous peoples as ayahuasca culture gets. A court will see the distinction; prosecutors will argue in favor of it.

Exemption from prosecution in these cases is based on religious sincerity. The criteria for sincerity can be found in Ronald Bullis’ excellent article, “The ‘Vine of the Soul’ vs. The Controlled Substances Act: Implications of the Hoasca Case” Journal of Psychoactive Drugs 40.2: 196 (2008). It will suffice to say that the criteria are strict. Only the broadest interpretation of “the Hoasca Case” (the UDV case) and the “free exercise” clause of the First Amendment would even begin to provide some semblance of protection to this business and its customers.

But what about its claimed association with the New Haven Native American Church—an alleged chapter of the Native American Church?

“We have successfully united and joined forces with the New Haven Native American Church, and have created a legally recognized and official Chapter of the NHNAC.”

This is the only substantiation Trinity offers to justify his legality after explaining that his business went through a terribly strenuous process of putting legal documentation together and oh boy, was it hard to obtain but they finally got the land and oh boy, they are so excited about it that they started pre-selling ceremonies before even moving in (Move-in date: December 1, 2015) or building anything.

The transparency of Trinity’s claims should be quite apparent. But how hollow is this, really? After all, it is an official chapter of the NHNAC.

Investigating the NHNAC raised more questions than it answered.

The NHNAC was formed earlier this year. On June 16, it changed its name from the Oklevueha Native American Church of Missouri, Inc., established with the State of Missouri as a nonprofit corporation on April 25, 2013, to the New Haven Native American Church. Red flag, anyone?

The reason for the name change, according to the NHNAC was “to better reflect the purpose and missions of the church.” Buy why change it, especially after going through all the trouble to get letters of blessing from leaders of the Oklevueha Earthwalks Native American Church of Utah (the most legit-seeming one, run by a real Western character called James “Flaming Eagle” Mooney, exposed as a fraud by the Native American Rights Fund (NARF), an eminent non-profit law firm, and the Bureau of Indian Affairs (BIA)—why disassociate from Oklevueha?

Though the reason the NHNAC changed its name remains unclear, investigation illuminated some rocky terrain: A different Oklevueha Native American Church, the Oklevueha Native American Church of Hawaii (ONACH), has been slow-boiling a sacramental-use-of-cannabis case against the US government since 2010, after federal agents in Hawaii seized a pound of the plant in a package addressed to the chapter’s proprietor.

Despite the case he brought against the government, the government filed no criminal charges against the ONACH proprietor. See Oklevueha Native Am. Church of Hawaii, Inc. v. Holder, 676 F.3d 829 (9th Cir. 2012). Pushing the case up through the U.S. court system in an attempt to pioneer precedent has not succeeded. The US Government does not like to make exceptions to the Controlled Substances Act. It takes a special case indeed to work its way all the way to the Supreme Court.

One such case relates to peyote. The case, often cited as legalizing the Native American Church’s religious use of peyote, Employment Division, Department of Human Resources of Oregon v. Smith 494 U.S. 872 (1990), was based on the denial of unemployment benefits after the plaintiffs, two Native American Church-members, were fired from their drug counseling jobs for consuming peyote sacramentally (and outside of working hours).

Contrary to popular assumption, the Supreme Court did not hold that peyote use was protected by the religious use exemption—in fact, it held quite the opposite, that the right to free exercise of religion does not allow people to use a religious motivation as a reason not to obey generally applicable laws, such as the ban on the possession of peyote (or ayahuasca, or any other controlled substance). It is up to states to make laws requiring different elements for legally protected peyote use. These elements include: sincere religious intent, bona fide religious organization, only within a Native American Church Ceremony, or only on a reservation.

What becomes apparent, even at this level, is that an organization like Ayahuasca USA must contend with the complexities of both federal and state drug law. Consider cannabis—legal in some states, illegal in others, and illegal under federal law.

By glossing over how the religious exemption works and oversimplifying the legal complexities of his position, Trinity lulls potential customers into a dangerous false sense of security. Participants in ceremonies on his property in Washington are not safe from prosecution under U.S. drug laws. In fact, they are in a space made especially unsafe by Ayahuasca USA’s viral popularity from a successful Facebook hype campaign. With all the attention they are attracting, the wrong kind will likely come too.

The wrong kind of attention is exactly what the NHNAC, Ayahuasca USA’s “certifying body” seemed to be attracting before its name change. They seemed like one of those websites you could go to become a card-carrying shaman online. (In the same vein you can get online ordaination by the Universal Life Church of Modesto, California.)

The membership cards from the Oklevueha Native American Church (the Utah branch run by James “Flaming Eagle” Mooney), that sell for $200 each, state emphatically, “The bearer of this card is entitled to the protections of RFRA and the First Amendment’s ‘free exercise’ clause to possess, consume, and administer of any of the following sacraments, including but not limited to: peyote, ayahuasca, cannabis, etc.” (paraphrased). Such soothing statements do wonders to calm the nerves of the modern American shaman. But is a card-carrier really protected by the law? Is this more “sham” than “shamanism”? More business than church?

We must be wary here. Shamanic waters are historically dark and fraught with peril. Lies, deceit, and scams are par for the course. The anyonymizing veil of the Internet makes caution and critical thinking for customers in the shamanic services sector more important now than ever. Take a close look at their marketing copy.

Caveat emptor. Mundus vult decipi.

Association with a questionably valid chapter of the Native American Church does not mean legal protection, despite what this “church” might have you believe. They are heavy with promises:

“There are hundreds of pages of legal documentation that I could send you.”

And light on delivery. I requested the documents. Their first response directed me back to their website, which features no specific documentation. Their second response directed me to the NHNAC website. They said they couldn’t offer anything more right now. But without the missing hundreds of pages of legal documentation, the sole support Trinity offers for his legal position is his association with the NHNAC. That kind of support makes for a shaky foundation. Tipis built on it might fall.

“The bottom line is, you are safe with us.”

The bottom line is, Trinity, you and Marc “Kumooja Banyan Tree” Shackman are putting yourselves and your customers in danger of being arrested, charged with drug offenses, and put to trial even if, years down the line, after the case finishes moving through the court system consuming life and financial resources, you win.

A business model based on “requested donations” does not provide a magical loophole in the law. Salvation for donations gets us no closer to liberation than a bacon cheeseburger.

And now:

“I need to be very clear. We are not operating a business, and this is not an exchange of money for a service.”

This is literally the opposite of the truth. This becomes apparent a few paragraphs down:

“Where does the money go? … To pay our team, and cover all expenses for people who live at the land.”

I’m shaking my head.

The website is a lead generation factory collecting email addresses. The multi-step marketing process of “10-step email series Ayahuasca Survival Guide, submit an application, do a 30 minute phone interview, wait for a callback in 1-2 weeks to give you the news you’ve been approved” can have the unfortunate effect of entrapping customers in commitment-to-buy. This is Sales 101 (I shamelessly sold a crowdsourced Google AdWords service for a year and received a crash course in boiler-room-style tactics). It exploits people.

The scary thing is that so many people have bought into this in the past week that Ayahuasca USA stopped accepting applications. The scarier thing is that this sort of enterprise is more and more common lately. Look at the case of Alberto Varela and Ayahuasca International. Their brand of consumer deception about ayahuasca’s legal status can get customers in trouble. Caveat emptor, I guess. Mundus vult decipi?

“If $1000 is a lot to you right now, then that discomfort of making that donation is already the start of your healing.”

Or maybe that discomfort is your common sense. Don’t buy the hype. Knowing your rights means knowing their limitations. If you are going to drink ayahuasca, drink ayahuasca responsibly. And find a shaman, not a sham.

Notes:

(*) Tulane University Law School J.D./M.S. 2016

From the editor:

(**) This note does not necessarily reflect the position of this site. Other perspsectives are also welcomed.