Singing to the Plants: A Guide to Mestizo Shamanism in the Upper Amazon (69 page)

And to the Supreme Court the case duly went, after both the trial court and
the U.S. Court of Appeals for the Tenth 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.24 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.25 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."26

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 the UDV appear to be slim.

The Saga of Alan Shoemaker

On April 20, 2001, the Peruvian Air Force, working with the U.S. Drug
Enforcement Administration, shot down a small missionary plane in the
Peruvian Amazon, seriously injuring the pilot and killing the wife and newly
adopted daughter of one of the missionaries, apparently because the plane
was mistakenly believed to be carrying drugs. A report issued jointly by the
United States and Peru, apparently as part of a CIA cover-up, put most of the
blame on the plane's pilot, who allegedly had not filed a flight plan, a claim
denied by the evangelical organization for which he worked.27 The report also
suggested that language problems-between the CIA-contract pilots of the
surveillance plane that initially targeted the missionary plane as a drug courier and the Peruvians aboard the jet that did the actual shooting-contributed
to the tragedy that left two Americans dead and the pilot seriously wounded.
A highly skeptical analysis of the joint report, datelined October 24, 2001,
appeared in the December 1, 2001, edition of the online activist newsletter
Norco News, written by Peter Gorman, a former High Times editor-in-chief who
had traveled in Peru for more than two decades as a journalist and consultant
to the Museum of Natural History in New York. The report contained photographs of the bullet-riddled missionary plane, including close-ups of the
smashed cockpit, taken by Alan Shoemaker .21

It is tempting to guess that the DEA and Shoemaker were not-and had not
been for some time-strangers to each other. In October 1996, Shoemaker
spent three days in the Gayabamba jail in Iquitos, pursuant to a formal government complaint that he was manufacturing and distributing ayahuasca
contrary to the public health.29 Such an action is astonishing, as there is nothing even remotely illegal about ayahuasca in Peru. But in Iquitos, it is not difficult to file a denuncio with the police, and the mere filing of such a complaint
is enough to get the accused tossed in jail until he is able to extricate himself.
It must be remembered that the DEA has a powerful presence in Iquitos, including a huge guarded complex outside the city, bristling with microwave
towers. Clearly, someone-someone with connections-was sending Shoemaker a message.

Shoemaker had come to Iquitos in 1993, after studying huachuma and
ayahuasca healing in Ecuador. In a 1996 magazine interview, he spoke of living a "magical life" and related how, in an ayahuasca vision, he had learned how to cure his mother of her liver cancer.3° In Iquitos he met and married
Mariella Noriega, a Peruvian national who, in 1998, started a company named
Chinchilejo, Dragonfly, licensed to export plant materials from Peru. On January 29, 2001, Chinchilejo became the first and only Peruvian plant exporter
to have a shipment seized by the DEA. The seizure was made after delivery
was completed to Shoemaker's son by a previous marriage, who lived in
Clarkston, Georgia, just outside of Atlanta, and who said that he was starting
a wholesale plant business. The shipment, which had been exported with all
the necessary Peruvian and international paperwork, consisted of 66o pounds
of ayahuasca vine and 220 pounds of chacruna, seized on the grounds that the
chacruna leaves contained DMT, a Schedule I controlled substance.3'

Following this seizure, during the period approximately from May through
July 2001, Shoemaker's wife undertook to charter a church in Iquitos, under
the name Soga del Alma, Vine of the Soul, a Spanish translation of the word
ayahuasca. Although Shoemaker has denied this, it is a good guess that one of
the primary purposes of doing so was apparently to be able to invoke the legal
protections of the Religious Freedom Restoration Act in the United Statesthe same act that the U.S. Supreme Court would later hold protected the UDV
from seizure of its ayahuasca.

This development was greeted with great interest in the online Ayahuasca
Forum, where Noriega solicited memberships and donations. Many of her
statements seem calculated to give the church a sort of retrospective validitythat is, to demonstrate its existence, if not its name, prior to the date of the
seizure. "Soga del Alma," she wrote, "is merely a formalization of the religion
that has been in existence in the Amazon since the rubber tappers learned
it from the indigenous, about ioo years ago. The ceremonies they have held
since that time have remained the same. There has never been any formal
name applied to these ceremonies which have always been very spiritual and
healing. The act of registering it is something that should have been done
years ago, but was not."32

Within a few days she was promising to provide application papers for forum members, whose names would then be entered in an official book in Peru
and who would receive, in return, official certificates confirming membership
in the church-perhaps, she said, even a smaller wallet-sized card as well.33
And she repeats: Soga del Alma "is really only the formalization of the religion of the ayahuasqueros who have been holding sessions every Tuesday and
Friday nights for the last loo years."34 Donations, however, were apparently
slow in coming, and by the next year, Soga del Alma seems to have been a
church without structure, governance, doctrine, congregations, ordinations, ministry, or membership-in brief, nothing that would make a U.S. judge or
jury think Soga del Alma was a religion, rather than, say, a ragtag bunch of hippies seeking to evade the drug laws.

No arrests were made at the time of the seizure. Peter Gorman claims to
have spoken to the DEA agent in charge of the airport where the confiscated
plants were being stored. Gorman says that the agent in charge stated that
the plants would be placed in a damp place in the airport where they would
rot, and that Shoemaker would then have the option of fighting the seizurewhich would have cost more than the plants were worth-or watching them
putrefy. Gorman claims to have recorded this conversation.35

Then, on April i, 2002, when Shoemaker flew from Iquitos to Miami to see
his dying mother, he was picked up at Miami International Airport and told
a sealed indictment had been handed down on January 22, 2002. Shoemaker
was charged with intent to distribute a Schedule I controlled substance, along
with a number of lesser charges. The primary charge carried a potential penalty of up to twenty years in federal prison. Shoemaker's lawyer at the time, Page
Pate of Atlanta, said his client planned to use the ayahuasca drink made from
the two plants-all 88o pounds of them-solely in religious ceremonies.36

Shoemaker was held in prison for fifty-nine days-one month in federal
lockup in Miami before being transferred to hard-core lockdown in Atlanta
for a month-then released on a $50,000 cash bond, with the stipulation that
he wear an electronic ankle bracelet and remain at his late mother's home in
Elizabethton, Tennessee, until the case was concluded. His wife and two children remained in Iquitos. Shoemaker's lawyer said, "This is an unwarranted
extension of the so-called war on drugs to a substance that has no use as a
recreational drug and doesn't pose any real threat or danger to American society. Government resources could be best used elsewhere." U.S. Attorney Bill
Duffey stood by the charges. "This is a very dangerous hallucinogen," he said.
"We will do whatever we can to keep it out of our district and prosecute anyone who tries to bring it in. 1137 Meanwhile, on August 12, 2002, judge James
Parker of the U.S. District Court for the District of New Mexico ruled that the
use of ayahuasca by the UDV was likely protected under RFRA and issued a
preliminary injunction against the U.S. attorney general, the DEA, and other government agencies, requiring them to return ayahuasca that had been
seized from the group in May 1999.38 On September 4, 2003, a three-judge
panel of the Tenth U.S. Circuit Court of Appeals in Denver upheld the issuance of the injunction.39

There are two important features of this case that make it different from
the UDV case. First, Shoemaker-who had been described by one Peruvian journalist as "someone who seems to have been torn from the pages of a Henry Miller novel"-had few resources to finance his litigation;4° and second,
unlike UDV, he had no institutional structure to back up a claim to religious
exemption under RFRA. Perhaps for that reason, Shoemaker, despite his
wife's attempts to create a church identity, did not claim religious exemption
from the drug laws, even though the defense was available.

Rather, he claimed that while DIM was a Schedule I controlled substance,
the naturally occurring chacruna-as opposed to synthetic DIM-was not intended to be included under the Controlled Substances Act and was, therefore, legal. The same argument had already been rejected by Judge Parker in
the Uniao do Vegetal case in NewMexico.41 On October 23, 2002, U.S. Magistrate Judge Alan Baverman declined to dismiss the indictment. The magistrate
judge found that the Controlled Substances Act, while not specifying the vines
or leaves as illegal substances, covers "any material" that contains DIM. The
case was bound over for trial.

For reasons that are not clear, Shoemaker retained a different lawyer, Mark
Sallee. On April i, 2003, the magistrate judge granted Shoemaker's motion,
unopposed by the government, to modify the special conditions of his bond,
eliminating the electronic monitoring and the travel restrictions. Shoemaker
claims that he had the full permission of the government to return to Peruthat, in the presence of Peter Gorman, he telephoned unspecified government
officials on the day of his departure to confirm his understanding that he was
free to leave the country.42 And leave it he did, departing forthwith to rejoin his
wife and children in Iquitos.

Then, on July i6, 2003, the magistrate judge scheduled a bond revocation
hearing for the next week, at which Shoemaker would have to appear, explain
why he had fled to Peru, and show cause why his bond should not be revoked;
revocation of his bond would mean being remanded to jail to await trial.
Shoemaker says that he was given just four days' notice and could find no way
to return to the United States in time for the hearing. It is not at all clear to
me why Shoemaker's attorney, Mark Sallee, was unable to obtain a one-week
continuance of the hearing in order that his client might appear. To the suspicious mind, it might seem that these events were orchestrated for one purpose-to get Shoemaker out of the United States and then keep him out.

When Shoemaker failed to appear at the July 23 bond revocation hearing,
the magistrate judge issued a bench warrant for his arrest. Shoemaker had now
officially become a fugitive-a status he claims was the result of government
action, not his own. "I did not declare myself a fugitive, they did," he says. "Do
I want to be a fugitive? No. Did I ask to be a fugitive? No."43 The offense with which Shoemaker is charged in the United States is not an extraditable offense
in Peru. He is safe as long as he does not return to the United States.

Shoemaker is now quite publicly back in Iquitos with his wife and children.
On July 9-15, 2005, he sponsored an international conference on ayahuasca in
Iquitos, attended by such heavyweights as Dennis McKenna, Eduardo Luna,
and Benny Shanon, as well as a number of indigenous curanderos. The event
has continued, quite successfully, each year since. He has a lawyer looking
into "certifying" Soga del Alma as a religion, with chapels all over the worldjust like the Uniao do Vegetal.44 He has apparently learned this lesson: if you
want an exemption under RFRA for the religious use of psychotropic plants, it
is best to look as much as possible like an Episcopalian.

Why was Shoemaker prosecuted? There is no doubt that it was due in part
to the size of the shipment; 88o pounds of plants-even 220 pounds of a plant
containing a Schedule I controlled substance-may have been just too big to
ignore. Interestingly, Shoemaker states, "The only thing that I have done was
to take photos of the downed missionary plane. 1145 Although the pictures were
taken after the seizure, it is hard to believe that it was the first provocative act
he had taken against the DEA. In fact, Shoemaker later wrote, "I am in my
situation not because my wife shipped plants to my son in Atlanta. I am in this
situation because Peter [Gorman] and I stood up for what we believe to be the
real United States and put our face into those that were hired under misleading and false corporations to run amok on the

CRIMINAL PROSECUTIONS IN OTHER COUNTRIES

Like the Uniao do Vegetal in the United States, Brazilian new religious movements have achieved some legal success against criminalization in other
countries. In 1985, Brazil's Federal Narcotics Council, Conselho Federal
de Entorpecentes (CONFEN), and the Medicine Division of the Ministry of
Health, Divisao de Medicamentos, apparently under pressure from the United
States, made the ayahuasca drink illegal by placing it on the list of prohibited narcotics. The Uniao do Vegetal brought a legal challenge against the new
law, and CONFEN conducted two studies, in 1987 and 1988, investigating the
use and effects of ayahuasca at the ceremonies in these churches, including
drinking it themselves, and ultimately recommended that it be removed from
the list of controlled substances. In June 1992, the Brazilian government declared that the use of ayahuasca for religious purposes had caused no social
disruption and would not be prohibited.47