Mirror Mirror on the Wall, What’s the Truth of Psychedelic Law

Current psychedelic law in the United States focuses on a harmful perspective of “innovation” that ignores the emotional, cultural, and ecological harms that it creates for Indigenous peoples, who originated the use of psychedelic medicine. The laws that govern psychedelics mirror the problems associated with the "War on Drugs." Created in 1971, these laws benefit only the wealthy white West. This has two negative effects: first, current law belittles Indigenous knowledge systems by excluding any paradigms that typically exist outside the Western vision of science; and second, the continued exploitation of Indigenous knowledge excludes them from any reciprocation and ownership of this knowledge. Due to these factors, new psychedelic drug laws must incorporate Indigenous scholarship, and, apart from accumulating wealth for Indigenous communities, the protection of Indigenous cultures through stricter criteria for property rights. Lastly, it is important to decolonise legal thought, as without a decolonial legal framework, there can be no change in the unequal colonial world.

Drug law and policy was created through a rationalization that stemmed from the racialization of what the media coined a violent drug. Drug law and policy continue to benefit Western institutions with little regard to the well-being of Black, Indigenous, and people of color (“BIPOC”) communities. This parallel began with President Nixon’s official commencement of the War on Drugs in June 1971, stating that drug abuse was “public enemy number one.”[1] He increased funding for drug-control agencies and proposed strict measures, such as mandatory prison sentences for different drugs. Then, Nixon created the Drug Enforcement Administration (“DEA”) in 1973, which would eventually grow from a 1,470 agent and $75 million budget agency to the nearly 5,000 agent and $2.03 billion-budgeted organization that exists today. The goal was simple: to crack down on drug sale and use throughout the United States. However, in a 1994 interview, President Nixon’s domestic policy chief, John Ehrlichman, stated that the laws associated with the War on Drugs had other motives:

“We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.”[2]

The War on Drugs led to stricter regulations around psychedelics, limited their use, associated harmful stereotypes to users, and allowed a focused market to emerge — exemplified by the Peyote cactus, widely grown in Mexico and southwestern Texas [3]. Mescaline, the principal alkaloid extracted from Peyote, was synthesized in 1919 and used in schizophrenia research until the early 1930s. Around this time, Peyote was criminalized, labeled as the "Cult of Death,” and blamed for evil and violent behavior. This label came from various newspapers that would describe Peyote’s effects to be an “evil addicting substance that caused irrational and violent behaviors, endangered White settlements, destroyed marriages, and threatened morality.”[4]

The media’s role in framing a false narrative around Peyote, and consequently their influence on racialized policy, is highlighted through one of the many articles written at the time. The target of “White settlements,” a term used to describe an area that was forcibly made to go through a “Colonial Inhabitation,” a violent way of inhabiting the earth, subjugating lands, was at the forefront of the plant's negative connotations. A 1919 article titled “Peyote Bean Causes Frenzy” described Native people as violent after using Peyote and would “target residents and White establishments” — an obvious false narrative that is backed up by Western research by Schultes in 1938 [5]. In his paper, “The Appeal of Peyote (Lophophora Williamsii) as a Medicine,” he outlines that there is no link between violence and the use of Peyote [6]. This narrative built on itself through the years, eventually gaining enough weight to increase fear and hostility and allowing the Federal Government to label peyote as a Schedule 1 drug under the Controlled Substances Act, an act meant to regulate substances under existing federal law into one of five schedules, with 1 being the most regulated, in 1970.

Yet, while Peyote’s ceremonial use was criminalized and its plant population declined, pharmaceutical companies, like Merck, were allowed to continue selling it until a cheaper alternative, LSD, became available in 1960’s. This hypocrisy, built on a false narrative, only benefited the white West as it still allowed researchers to obtain necessary permits and licenses to study this alkaloid, and set the foundation for a legal system that would only highlight this hypocrisy.

The current state of psychedelic legislation contributes to the emergence of a highly concentrated market, in which a select few entities are poised to dominate and resort to biopiracy tactics to appropriate indigenous knowledge of plant medicines. Despite the fact that psychedelics remain illegal in most states, specific companies are gradually consolidating their hold on the psychedelic market. According to Market Data Forecast, pharmaceutical companies are projected to assume control over the psychedelic market, with its value expected to surge from $4,165 million in 2023 to $8,580 million in 2028 [7]. However, amidst this trend, one company — Journey Colab, a psychedelic pharmaceutical enterprise primarily dedicated to research and therapy development — has taken steps towards a “Patent Pledge.” This pledge follows their patent application for a synthetic form of Mescaline — a form of mescaline that is not deriving, extracting, or synthesizing mescaline from any biological source — for use in their therapeutic initiatives, which would include “protect[ing] certain sacramental, religious, spiritual, ceremonial, and other traditional forms of access to mescaline and peyote” as well as allocating 10% of its initial equity to support affected communities [8]. This definition is ambiguous, as there is no clear starting point for evaluating the financial position that 10% is referring to; yet, their synthetic form of mescaline aims to not use any naturally growing Peyote in their research. Nonetheless, there is ongoing criticism concerning the very notion of patenting a naturally occurring plant substance.

Biotech companies focused on developing psilocybin-based therapies — such as Compass Pathways, MindMed, and Cybin Inc. — argue that bringing psychedelics into the mainstream is a way of "honoring" these substances. For instance, Journey Colab has adopted a reciprocity model in their approach to the utilization and commercialization of psychedelics. This model follows three outlines: healing a broken industry, forging effective partnerships, and consulting community stakeholders. However, this perspective often overlooks the cultural and spiritual significance of these substances and the autonomy they hold as medicines. In fact, this reciprocal model was not created through full discussions with Indigenous communities, as the focused groups created to further the outlines of the model were cut short early in the consultation and that “further consultation without tangible benefit to share with the community was not welcome.”[9] For instance, Bia Labate, a Queer Brazilian anthropologist and the Executive Director of the Chacruna Institute for Psychedelic Plant Medicines, posits that plant medicines can be perceived as "plant teachers."[10] While the Western viewpoint often treats nature as an object, Indigenous communities, in a more general sense, regard plant medicine as having its own autonomy, capable of imparting knowledge. The Western scientific approach, which tends to rationalize and reduce a plant to its chemical components, does not align with the traditional holistic healing claims supported by many Indigenous cultures. As she aptly puts it:

“It’s this need to use Indigenous people to legitimize scientific research while at the same time not taking into account Indigenous beliefs and trying to reduce things that are much more complex and sophisticated and have a whole history and set of relationships to categories that we invented and our projections of our own values and systems.”[11]

Labate suggests that intellectual property laws are inherently colonial, stemming from a Western view of knowledge: a commodity owned by an individual, not a community. Indigenous knowledge is seen as a descriptive entity when spoken about in laws, versus as a producer. Thus, the West must re-frame the way they think of knowledge.

The United States is not a signatory to international treaties that protect genetic material or genetic resources derived from living organisms, and even if they were, the treaties would still fall short of their legal protections for Indigenous knowledge. The Nagoya Protocol on Access and Benefit-Sharing, an international treaty with the goal of conservation of biological diversity, can be summarized as a document that ensures “owners” or “guardians” of genetic material to receive a “fair share” of any benefits that arise from the research of those resources [12]. However, the protocol is not retrospective and thus only genetic material accessed after its ratification is set under these laws [13]. The protocol is a supplement to the Convention on Biological Diversity (CBD), an international treaty that outlines the conservation, sustainability, and fair and equitable sharing of biodiversity. The protocol supplements article 8, which states that signatories are “subject[ed] to national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity.”[14] Non-Signatories to these international laws include the United States, Canada, China, and Russia. Under the current Western legal system in the United States, property rights over indigenous biological genetic material are not sufficiently protected, leaving it susceptible to commercialization and exploitation. This inadequacy in protection, rooted in a colonial framework, raises concerns regarding the rights of indigenous knowledge and communities and the ethical use of biological resources.

To move forward, a decolonial framework must be incorporated into the legal system. Though a single law cannot “fix” the exploitation that the United States has acted on, education, reform, and restructuring can create a foundation that can move discussion to action forward. It is important to ensure that Indigenous peoples and knowledge are protected while we work to decolonize our colonial legal system. For one, reframing the reductive Western view of plant medicine as a commodity to one that frames more of a relationship with the land and that understands that ecological and socio-political issues are not separate.

The bare minimum is ensuring laws incorporate reciprocity as a point in every law, similar to Journey Colab’s “Patent Pledge.” However, also referring to this pledge, it is important that laws incorporate a necessity for users and distributors to acknowledge, learn, and understand the complex and sophisticated Indigenous beliefs about plant medicine, and in result, take action.

Bibliography

1. “War on Drugs - Timeline in America, Definition & Facts.” History.com. Accessed October 12,

   2023. https://www.history.com/topics/crime/the-war-on-drugs.

2. Ibid.

3. Terry, Martin & Trout, Keeper & Williams, B. & Herrera, T. & Fowler, Norma. “Limitations to natural production of Lophophora williamsii (Cactaceae) I. Regrowth and survivorship two years post harvest in a south Texas population.” Journal of the Botanical Research Institute of Texas 5, 2011,. 661-675.

4. Hernandez, Enrique. “Peyote and the Ensuing Moral Panic.” Ramapo Journal of Law & Society, March 6, 2014.

5. Ibid.

6. Schultes, Richard Evans. “The Appeal of Peyote (Lophophora Williamsii) as a Medicine.” American Anthropologist 40, no. 4 (1938): 698–715.

7. ltd, Market Data Forecast. “Psychedelic Drugs Market Size, Share, Growth Analysis to 2028.” Market

   Data Forecast. Accessed October 12, 2023.

8. “Patent pledge.” Journey Colab. (2023). https://www.journeycolab.com/patent-pledge

9. Journey Colab. “Ongoing Dialogue on Reciprocity and Consultation.” Journey Colab. Accessed November 2, 2023.

10. Labate, B. “Video: Honoring the indigenous roots of the psychedelic movement.” Center for the Study of World Religions, Harvard Divinity School, March 15 2021, https://cswr.hds.harvard.edu/news/2021/03/18/honoring-indigenous-roots-psychedelic-movement.

11. Ibid.

12. “What is the Nagoya Protocol?” Imperial College London. (2023).

    https://www.imperial.ac.uk/research-and-innovation/research-office/what-is-the-nagoya-protocol/#:~:text=The%20Nagoya%20Protocol%20on%20Access,that%20arise%20from%20research%20conducted

13. Ibid.

14. '“Secretariat.” (2023). Article 8(J) of the CBD. IPBES secretariat.

    https://www.ipbes.net/node/40709#:~:text=Article%208(j)%20states%20that,embodying%2

    0traditional%20lifestyles%20relevant%20for