Amidst ongoing debates about the legalization of cannabis, a growing number of medical experts and activists seem to think that Americans might have an appetite for overhauling other drug-related restrictions. This past November, Oregon’s attorney general approved language for a ballot initiative that could legalize medicinal psilocybin, a psychedelic drug derived from “magic mushrooms.”
The coalition behind this initiative is not comprised of rogue radicals. It has allies nationwide, such as the Multidisciplinary Association for Psychedelic Studies, whose mounting evidence suggests that psychedelics are making a thus-far graceful re-entry into the “mainstream.” When widely respected journalist Michael Pollan came out with a hyper-rational endorsement of psychedelics in his bestselling book How to Change Your Mind, minds did indeed begin to change, or at least open. It seems that the Schedule I classification of psychedelics, an artifact of the “psychedelic ‘60s,” may have gone too far, and that Americans may be ready to undo this mistake.
The results of Dr. John Halpern’s 2005 study out of the Harvard-affiliated McLean Hospital suggest as much. Halpern conducted a double-blind study on the mental health of members of the Native American Church, whose members practice ritual peyote use. Peyote is a cactus that contains mescaline — part of the hallucinogenic, or psychedelic, class of drugs, along with psilocybin, LSD, and MDMA — the latter two more commonly referred to as “acid” and “ecstasy.” The study found that Native Americans who use peyote suffer no cognitive defects; indeed, while it asserts no direct causality, it found that peyote users were more mentally healthy, on average, than their non-using peers.
But it was not a dearth of similarly compelling research that led to the drugs’ Schedule I classifications; this legislation was a product of the psychedelic ‘60s, when the legal system’s inability to parse productive and destructive uses of psychedelics sparked a pre-War on Drugs moral panic.
A far more controversial Harvard psychedelic researcher, Timothy Leary, is often blamed. His LSD research marked the end of the “golden age” of psychedelic research that began in the 1950s; during that period, over 1,000 scientific papers were published exploring the role that these drugs could play in treating mental illnesses. Leary was fired from Harvard for giving LSD to students, and went on to become a face of the counterculture and hippie movements, ultimately irreparably stigmatizing perceptions of psychedelics. When they were banned in 1965, researchers aware of their promising therapeutic potential were unable to mount a legal defense; they could not yet claim to know a reliable and healthy way to “trip.”
The ban had only one exemption. On the grounds of religious freedom, as well as native sovereignty, only the religious use of peyote by Native Americans was permitted. This allowance has left indigenous people to play a central role in the country’s legal debates about psychedelics. Those reopening this debate would be remiss to forget this part of the story. The regulation of psychedelics has a long and fraught history, full of difficult but crucial questions about the nature and limits of the First Amendment.
Protecting Peyotism
Peyote has had religious significance to indigenous people since pre-Columbian times. Its use was prohibited by Spanish colonizers and missionaries, but it reemerged as the central sacrament of a new pan-Indian faith in the late 19th century. As this religion, known as modern peyotism, spread throughout tribes within the continental United States in the first half of the 20th century, many state governments began banning it. Congress almost did the same in 1918.
As peyotism grew and faced mounting legal persecution, the faith became institutionalized as the Native American Church — whose contemporary members were the subjects of Halpern’s research. NAC members consume peyote as part of a formal ceremony with a trained religious leader, but even so, the first amendment protection for religious peyote use has been routinely contested. It was not until the cases of Arizona v. Attakai in 1960 and People v. Woody in 1964 that the NAC, with the help of the ACLU, first won solid protection on the grounds of religious freedom.
Anthropologists have documented and testified to peyotism’s safety, morality, and religiosity for decades; Halpern’s work is only the most recent in a long line of similar papers. That this freedom was not already obvious and undisputed, and that Native American peyotists have repeatedly been dragged into courtrooms and forced to defend the authenticity of their faith, is an injustice in and of itself.
But the popularity, and then abrupt prohibition, of psychedelics among non-native people in the ‘60s and since has further complicated the legal landscape, typically at the NAC’s expense. It was just a year after the Woody decision that the federal government prohibited all psychedelics as Schedule I substances, making the NAC’s use of peyote the single exemption. This exemption reflected progress, to be sure; however, coupled with the blanket prohibition, it ultimately spelled further trouble.
“Plastic Shamans”
This legal system, in which all psychedelic use was prohibited except in the case of peyote use by Native Americans, sparked a flurry of attempts — including one by Leary himself — to use the same religious freedom argument to fight drug charges in court.
In State v. Bullard, in 1966, a white college student claimed that he had become “a Peyotist with Buddhist leanings” and was a member of the Neo-American Church. In court, he argued that “peyote is most necessary and marijuana most advisable in the practice of my church’s beliefs.” Bullard lost the case.
These non-native people who scramble to reap the benefits of the NAC’s legal exemption have earned the Church’s resentment. A more recent example is James “Flaming Eagle” Mooney and his Oklevueha Native American Church. Despite having no tribal affiliation and being denounced by the National Council of the NAC, Mooney has been using the legal exemption to protect his organization’s members — people of various ethnic and religious backgrounds who claim that their use of not only peyote, but also cannabis, psilocybin, and ayahuasca, is religious.
Another member of Oklevueha was a woman who offered erotic “tantra” massages, in which orgasms were considered part of the spiritual experience, and on whose behalf Mooney testified in court.
When asked about his standards for membership, Mooney told the HPR, “I had no vetting system — I was just going by their heart.”
Mooney’s organization deeply offends the NAC; many members feel that groups like his compromise and exploit the integrity of their religious identities. In 2016, NAC leadership penned a statement explaining their frustrations: “We know who we are, and we know where we come from. We know the atrocities visited upon us. We reject the attempts to grasp onto our indigenous ways and deceive the public by claiming them as their own for their own personal enjoyment or for profit.”
Peyote itself is also hard to grow and in short supply, and so its indiscriminate dissemination jeopardizes its accessibility for the native people for whom it is sacred, and not interchangeable with other psychedelics. And given that the NAC’s exemption was retracted in 1990, and then restored four years later, this exploitation is even more fraught.
Sandor Iron Rope, president of the Native American Church of South Dakota, told the HPR, “The NAC has been subjected to punitive laws that were intended to stop abuses by non-Native people in contexts having nothing to do with it.” He added, “The real NAC still has to be alert to protect peyote and the land in which it grows in order to preserve a sacred and timeless way of life and pass it on to the coming generations of Native people.”
Ever since religious freedom for the NAC became the only available avenue to claim the legitimate use of psychedelics, people like Mooney and Bullard — whose purported piety has ranged from dubious to ludicrous — have been incentivized to imitate and desecrate a persecuted faith.
“Medicinal,” “Religious,” Both, and Neither
Joseph Calabrese, who studied the NAC with Halpern at Harvard and later authored A Different Medicine: Postcolonial Healing in the Native American Church, condemns the psychedelic enthusiasts who have gone after the NAC’s legal exemption. “But I think they are sort of forced into that, because only the NAC has received any level of protection,” he told the HPR.
We could imagine an alternative history, in which a medicinal avenue to accessing psychedelics had become legal and commercialized back in the 1960s. Given its loose, often invented, religiosity, the market that Mooney has tapped into might have been far smaller if psychedelic therapy had been made available through overtly medicinal channels. In Mooney’s world, “Religious and medicinal use of peyote — they’re the same thing.”
But the ambiguity between these categories transcends “plastic shamans.” Even for the NAC itself, the religious use of peyote has never been divorced from its mental health benefits. All the way back in People v. Woody, pharmacologists were called to testify — even though religious freedom was the legal principle at play — and they cited their research on mescaline’s therapeutic potential in defending peyotism.
While the First Amendment demands a sharp distinction — one which put the NAC and pharmacology in very separate legal categories — these categories have failed to represent the often-overlapping contexts in which psychedelics can promote well-being.
“Psychedelics have a way of obliterating any kind of category that you try to put them in,” wrote journalist John Horgan, author of Rational Mysticism: Spirituality Meets Science in the Search for Enlightenment.
A reevaluation of the illegality of psychedelics, in Oregon or elsewhere, will require a reevaluation of these categories. Medicinal, religious, spiritual, and recreational uses of psychedelics are often indistinguishable — and not reliably aligned with the contours of ‘good’ and ‘bad,’ or ‘safe’ and ‘unsafe.’
An understanding of the collateral damage of the current legal framework bolsters the case for such a reevaluation. Not only have thousands been denied potentially life-saving treatments for mental illness, but a religion has been exploited and desecrated. Conceiving new and better ways for laws to trace those contours will not be easy, but perhaps Oregon’s psilocybin initiative is a start.
Image Credit: Unsplash/Pretty Drugthings