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Brandeis University Law Journal 2023-2024, Volume 11

The Psychedelic Surge and its Threats to Native American

Communities

Leora Karoll619

The psychedelic substances market is preparing to outpace the
legal cannabis market in the United States by 2027. The
country’s federal policies are not prepared to protect Native
Americans in the potential acquisition of their traditional
resources such as peyote (Lophophora williamsii), a small and
spineless cactus that contains psychoactive alkaloids. Through
case studies of biopiracy instances in the United States and
around the world, this paper demonstrates the vulnerability of
Indigenous Knowledge and resources and advocates for its
protection as the popularity of psychedelics surges. These
cases prove how easily and recklessly Indigenous Knowledge
and resources are exploited, barring Indigenous people from
accessing them due to new patent rights, laws, or scarcity.
President Biden pledged to incorporate Indigenous Knowledge
in federal research and policymaking in 2022, but due to the
lack of a Tribal consultation model and international
agreements signed to protect Native Americans, the
administration risks enabling further exploitation of these
invaluable resources in the United States.

I. Introduction

America is surging into psychedelic research. An
unprecedented amount of funding is being allocated to
psychedelic research to bring promising discoveries to the field
of mental health.620 However, to many Native Americans, the

620 “Johns Hopkins Center for Psychedelic and Consciousness Research,”
Johns Hopkins Medicine, accessed November 9, 2023,

619 Brandeis University Undergraduate, Class of 2024.

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powerful healing properties of the psychoactive plant peyote
have been known and used in religious ceremonies for
thousands of years.621 As more research is done, policymakers
and more than half of American voters begin to wake up to the
wealth of benefits that many currently illegal substances may
bring to American society.622 Although exciting to many, this
phenomenon causes concern for many traditional peyote users.
Many believe peyote should remain a closed practice, and
staunchly oppose genetic manipulation of the plant and
commercialization of what many Native Americans consider
an “ancestor and a living relative.”623 Even more pressing is the
threat of biopiracy, the act of taking knowledge and genetic
resources from Indigenous communities without consent or
compensation.624 Companies and individuals have historically
used United States patent law to gain the sole right to produce
and distribute medical plants that have long been part of the
Traditional Knowledge of Indigenous people. The legalization
of psychedelics has the potential to improve countless
American lives; however, numerous protections need to be
established to protect Native American sovereignty over their
traditional resource. The United States has signed the United
Nations Declaration on the Rights of Indigenous Peoples

624 John Reid, “Biopiracy: The Struggle for Traditional Knowledge Rights,”
American Indian Law Review 34 (2009).

623 Louis Sahagun, “Legalization Efforts Spur ‘Peyote Crisis’; As Cities
Move to Allow Psychedelic Plants, Some Native Americans Cry Foul.,”
Los Angeles Times, May 17, 2020.

622 Catherine Ho, “Majority of U.S. Voters Support Therapeutic Use of
Psychedelic Drugs,” San Francisco Chronicle, July 13, 2023,
https://www.sfchronicle.com/bayarea/article/majority-u-s-voters-support-the
rapeutic-use-18197873.php.

621 James D. Muneta, “Peyote Crisis Confronting Modern Indigenous
Peoples: The Declining Peyote Population and a Demand for
Conservation,” American Indian Law Journal 9, no. 1 (December 23,
2020), 139.

https://www.hopkinsmedicine.org/psychiatry/research/psychedelics-researc
h.

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(UNDRIP), but has yet to meaningfully ratify it. In doing so,
the United States would be obligated to prioritize Native
American voices by improving its Tribal consultation model by
establishing free, prior, and informed consent (FPIC) standards.
In addition to UNDRIP, the United States must sign and uphold
international agreements such as the Nagoya Protocol to
protect the rights of Native Americans.

Led by emerging medical studies funded by the United
States National Institutes of Health625 and the United States
Department of Veterans Affairs, a 21st century term,
“psychedelic renaissance,” has been coined to describe this
new period of acceptance of psychedelics.626 Psychedelics are
psychoactive substances that are either lab-made or naturally
occurring in plants. Peyote, methylenedioxy-methamphetamine
(MDMA), ayahuasca, psilocybin, and lysergic acid
diethylamide (LSD) are common psychedelic drugs.627

Consumption of these drugs generally does not lead to
dependence or addiction.628 From 2007 to 2020, 105 registered
clinical trials took place around the world examining the use of
psychedelic drugs.629 Notably, Johns Hopkins Medicine

629 Joshua S Kurtz et al., “The Use of Psychedelics in the Treatment of
Medical Conditions: An Analysis of Currently Registered Psychedelics

628 Nichols, “Psychedelics,” 264–355.

627 David E. Nichols, “Psychedelics,” Pharmacological Reviews 68, no. 2
(February 3, 2016): 264–355, https://doi.org/10.1124/pr.115.011478.

626 “Correa, Bergman Applaud House-Passage of Their Amendment
Pushing VA to Study Impact of Psychedelics on Veterans: United States
Congressman Lou Correa of California,” Congressman Correa, July 27,
2023,
https://correa.house.gov/news/press-releases/correa-bergman-applaud-house
-passage-of-their-amendment-pushing-va-to-study-impact-of-psychedelics-
on-veterans.

625 Brian S. Barnett, Sloane E. Parker, and Jeremy Weleff, “United States
National Institutes of Health Grant Funding for Psychedelic-Assisted
Therapy Clinical Trials from 2006–2020,” International Journal of Drug
Policy 99 (January 2022): 103473,
https://pubmed.ncbi.nlm.nih.gov/34624734/.

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received a federal grant of nearly $4 million to research the
impacts of psilocybin630 on tobacco addiction in 2021.631 A
breakthrough study by Johns Hopkins (2022) found that
psilocybin relieved symptoms of major depressive disorder for
up to a month in adults, and a follow-up study proved that
benefits lasted up to a year for some participants.632

In 2010, the Journal of Psychopharmacology found that
83 percent of formerly treatment-resistant patients who
underwent two MDMA treatments were cured of PTSD.633 A
long-term follow-up study found the positive results to be
stable for 3.5 years.634 In response to the promising results of
these studies, the United States Congress unanimously passed
an amendment to the Military Construction, Veterans Affairs,
and Related Agencies Appropriations Bill in 2023 to encourage
the United States Department of Veterans Affairs to utilize
federal funding for research of psychedelic therapies to help
treat veterans suffering from PTSD.635 A growing proportion of
Americans report using psychedelic drugs, and 53 percent of
users say they used it therapeutically.636 Fifty-six percent of
United States voters also express support for federal regulators
to approve the use of psychedelics for prescription use,

636 Ho, “Voters Support Therapeutic Use.”
635 Congressman Correa “Applaud House-Passing Amendment.”
634 Krediet et al., “Psychedelics Treatment of PTSD,” 385–400.

633 MDMA is also known as Ecstasy, a synthetic stimulant and psychedelic
drug; Erwin Krediet et al., “Reviewing the Potential of Psychedelics for the
Treatment of PTSD,” International Journal of Neuropsychopharmacology
23, no. 6 (2020): 385–400, https://doi.org/10.1093/ijnp/pyaa018.

632 Natalie Gukasyan et al., “Efficacy and Safety of Psilocybin-Assisted
Treatment for Major Depressive Disorder: Prospective 12-Month
Follow-Up,” Journal of Psychopharmacology 36, no. 2 (2022): 151–58,
https://doi.org/10.1177/02698811211073759.

631 Johns Hopkins Medicine “Psychedelic Research.”

630 Psilocybin is a psychedelic chemical compound naturally occurring in
some species of fungi.

Studies in the American Drug Trial Registry,” Cureus, September 14, 2022,
https://doi.org/10.7759/cureus.29167.

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according to a survey by the UC Berkeley Center for the
Science of Psychedelics.637 As more studies provide fruitful
findings, the psychedelic substances market is projected to
rapidly expand, from $2 billion in 2020 and expected to reach
$10.75 billion by 2027.638 These studies display the increased
readiness of the American medical community, government,
and general public to accept the legality of psychedelics.

II. Peyote in Native American Communities

Although the medical community in the United States
may only begin to accept the benefits of psychedelic remedies,
they have long been understood by Native Americans. Herbal
medicines and psychedelics such as peyote have been used for
thousands of years by Native Americans as part of their
medicinal and spiritual practices and rituals; carbon dating
proves that peyote was used 6,000 years ago at an
archaeological site in Texas.639 However, many Tribes further
claim that peyote has been used by them since time
immemorial.640 Peyote is often ingested during a night-long
ceremony shared by a community involving singing, praying,
drumming, and communication with a creator or some other
metaphysical entity.641 Members sit in a tipi or other ceremonial
structure facing a crescent-shaped altar with a fire. There are
four elements to the ceremonies, including praying, singing,

641 Peter N. Jones, “The Native American Church, Peyote, and Health:
Expanding Consciousness for Healing Purposes,” Contemporary Justice
Review 10, no. 4 (2007): 411–25,
https://doi.org/10.1080/10282580701677477, 415.

640 Fannie Kahan, “The Struggle for Peyote,” in A Culture’s Catalyst
(University of Manitoba Press, 2016),
https://doi.org/10.1515/9780887555084-007.

639 Muneta, “Peyote Crisis,” 139.
638 Phelps, “Investment in Psychedelics.”
637 Ho, “Voters Support Therapeutic Use.”

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ingestion of peyote, and quiet contemplation.642 Ceremonies are
usually called by a Tribe to pray for the healing of a sick
person or to give thanks for being cured.643 Additionally,
ceremonies take place to heal other problems or to pray for a
loved one who is away at school or in the military.644

According to personal anecdotes, the revelations experienced
through these ceremonies can lead to forgiveness, the
alleviation of physical and emotional illness, and bonding with
others in the community.645

As peyote offers both religious, emotional, and physical
healing, it has helped countless Native Americans recover from
life challenges such as substance abuse, mental illness,
homelessness, poverty, and food insecurity.646 The tradition of
the peyote ceremony strengthens communities through a shared
intergenerational ritual, not only by connecting individual
community members but also by linking generations through a
common experience. Losing this ritual endangers the wellness
of individuals, the strength and continuity of their
communities, and their religious freedom. However, with the
arrival of settlers from the West, this tradition became
vulnerable.

European conquerors and their descendants have long
been critical of peyote and its religious uses by Indigenous
people. When the Spanish Conquistadors arrived on the land in
1492, they tried to eradicate the plant entirely.647 As the Natives
reported visiting God when using peyote, the Spanish
identified it as a threat to the priesthood of their Catholic

647 Michael Pollan, “Chapter 4: Mescaline,” How to Change Your Mind,
directed by Alison Ellwood and Lucy Walker, 2022, Netflix.

646 Muneta, “Peyote Crisis,” 172–173.
645 Jones, “Native American Church,” 415.
644 Jones, “Native American Church,” 415.
643 Jones, “Native American Church,” 415.
642 Jones, “Native American Church,” 415.

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faith.648 In 1620, the Roman Catholic Church deemed peyote
“an evil to be rooted out in the New World.”649 During the
Mexican Inquisition, the plant was labeled the “diabolical root”
and was a “heretical perversity opposed to the purity and
integrity of our Holy Catholic faith.”650 From the start of
Western colonization of the land, Indigenous rights to peyote
have been imperiled.

After thousands of years of Native American use of
peyote, Congress passed the Indian Religious Crime Code of
1883, enforcing the imprisonment and withholding of
government rations from anyone in possession of peyote.651

The legislation stated that “dances and so-called religious
ceremonies, shall be considered ‘Indian offenses’... cognizable
by the court of Indian offenses.”652 Upon losing the ability to
legally practice these traditional and spiritual rituals, the
alienation of Native Americans and their cultures became
codified in law. This law forced these practices to move
underground out of threat of persecution. It fragmented the
passing down of Indigenous Knowledge from one generation to
the next, severing a connection between past and present. This
infringement of Indigenous rights to peyote fractured identity,
sovereignty, community connection, spirituality, healing, and
freedom.653

As of the 1994 Amendment of the American Indian
Religious Freedom Act (AIRFA), Native American Church of
North America (NACNA) members alone are legally allowed
to use peyote for solely religious purposes.654 The potential
mainstream legalization of the plant raises concerns for many

654 Muneta, “Peyote Crisis,” 139.
653 Muneta, “Peyote Crisis,” 140.
652 Muneta, “Peyote Crisis,” 140.
651 Muneta, “Peyote Crisis,” 140.
650 Pollan, “Mescaline.”
649 Muneta, “Peyote Crisis,” 139.
648 Pollan, “Mescaline.”

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Indigenous people, especially in the wave of decriminalization
of other psychedelics such as psilocybin. Colorado became the
first state to legalize psilocybin for therapeutic uses in 2019,
and Oregon followed in 2020.655 Based on data from the
trajectory of cannabis legalization, it is projected that most
states will have passed legislation legalizing psychedelics by
2033–2037.656

Nonprofit organizations such as Decriminalize Nature
have emerged in recent years, aiming to grant the healing
properties of natural hallucinogens including peyote accessible
to all.657 Some Native Americans, including   Navajo spiritual
leader Steven Benally, beg outsiders to “leave peyote alone”
and ask, “is that too much to ask?”658 Benally claims that “the
spiritual healing power peyote offers is only attainable through
Native American protocol,” and that the illegality of the plant
for non-Natives “is one of the few federal laws on our
side…We want to hold on to it.”659 Benally is one voice of
many who believe that peyote should remain inaccessible to
the general public. From his perspective, peyote usage is a
closed practice and should only be ingested ceremonially with
the proper protocol traditionally performed by Tribes. The
concept of a closed practice asks only members of a certain
culture to perform traditional practices as a way of preserving
the culture and practices and often the sanctity centered around
them. Close practices for some cultures are a way of
self-protection against colonial infiltration, especially if the
group suffers from a history of settler colonialism.

659 Sahagun, “Legalization Efforts.”
658 Sahagun, “Legalization Efforts.”
657 Sahagun, “Legalization Efforts.”
656 Siegel et al., “Psychedelic Drug Legislative Reform,” 80.

655 Joshua S. Siegel et al., “Psychedelic Drug Legislative Reform and
Legalization in the US,” JAMA Psychiatry 80, no. 1 (January 1, 2023): 77,
https://doi.org/10.1001/jamapsychiatry.2022.4101.

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In a commercialist society, many traditional peyote
users fear what could happen if the sacred plant becomes
accessible to the general public. Dawn Davis, a member of the
Shoshone-Bannock Tribes, worries about any “cultivation of
peyote outside of the ancient terrain it shares with Indigenous
people” and that “it is a step toward hybridization and
commercialization.”660 She is concerned that this reborn
national interest in psychedelic experiences reminds her of the
1960s when peyote was illegally bought and sold to
non-Natives. This illegal activity decreased access to Native
Americans and led many non-Natives to profit from the illegal
exploitation of the sacred plant. Although to most Americans
peyote is just a psychoactive plant, Davis explains that “to us,
peyote is an ancestor and a living relative,” holding immense
spiritual significance.661 For this reason, the hybridization and
commercialization of it poses serious concerns.

However, some Native Americans believe that the use
of the plant should not be restricted to Native Americans alone.
Indigenous leaders such as Comanche William Voelker claim
that the decriminalization of peyote may be best for all.662

Voelker is also the director of the nonprofit group Sia, which is
dedicated to the preservation of eagle feathers. He argues that
“it wouldn't be very humble of us to claim exclusive ownership
to peyote and prevent others from using it. It wasn't just given
to us.”663 However, in opening up the practice to outsiders,
there should be intentional respect for the plant and
consideration for its conservation needs. Miriam Volat, a soil
scientist and co-director of the RiverStyx Foundation, which
funds psychedelic research while simultaneously collaborating
with Tribes to contribute to the conservation of peyote argues
that “instead of saying, ‘[y]ou owe us this plant, the

663 Sahagun, “Legalization Efforts.”
662 Sahagun, “Legalization Efforts.”
661 Sahagun, “Legalization Efforts.”
660 Sahagun, “Legalization Efforts.”

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decriminalization movement should be saying, ‘[w]e’d like to
help you take care of your sacred medicine.’”664 Researchers
should work with Tribal leaders to ensure respectful use of the
sacred plant.

However, Native Americans have previously witnessed
an exploitative pattern of their traditional resources. Jon Brady,
the former president of the Native American Church of North
America (NACNA), worries that

[a] lot of people want to tap into [peyote] because they
see the potential, the almighty dollar … They’ve done
that to a lot of our medicines already … This is kind of
the last of our medicines of our Native American
people, so we’re trying every avenue to have its
protection.665

According to Brady, with the influence of capital, peyote will
inevitably become exploited if it becomes legal for all. He
believes that NACNA “should not have to fight endless efforts
to decriminalize Peyote,” and that “it requires that the federal
government to anticipate and act to cease states’ usurpation of
American Indian religious rights.”666 Brady argues that
legalization and decriminalization of peyote violates the
religious right of peyote as outlined in the 1994 Amendment of
the American Indian Religious Freedom Act (AIRFA). He
therefore instigates the federal government to initiate actions to
prevent states’ legalization or decriminalization efforts.

666 Jon Brady, “Strengthening the Indigenous Communities Through
Cultural and Environmental Preservation” (Testimony before the House
Natural Resources Committee, United States Congress, November 8, 2021),
2.

665 Hallie Golden, “Inside the Battle to Save the Sacred Peyote Ceremony:
‘We’re in Dire Straits,’” The Guardian, December 9, 2022,
www.theguardian.com/us-news/2022/dec/09/peyote-native-american-medici
ne-nacna-federal-protection.

664 Sahagun, “Legalization Efforts.”

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However, as the federal government falls short on
meeting many necessary protections for Native Americans,
many Tribal governments are empowered to implement their
own legislation for protecting their cultural property.
Indigenous rights scholar Angela Riley is concerned that “in an
age of globalization…property and quasi-property can spread
across the world…in a matter of moments.”667 Once Indigenous
cultural ideas and practices gain exposure, they are subject to
appropriation and exploitation, and therefore need protection.
Although Tribal law has limited jurisdiction, its development
or revitalization is uniquely capable of accommodating the
specific needs and circumstances of each Tribe.668 Therefore,
Tribes can determine how to protect themselves within each
cultural context and normative framework. As Tribal law gains
prevalence, it will gain legitimacy and standing in American
courts.669 Riley advocates for a tiered system approach of
incorporating international, national, and Tribal law to protect
cultural property.670 However, Tribal law must be the
foundation.671

III. The Threat of Biopiracy

Many Indigenous communities in the United States and
abroad have historically been exploited by biopiracy, executed
by individuals and companies. This process often involves
using patent law to grant the patent holder the sole right to
manufacture and distribute a plant. Consequently, Indigenous
people are criminalized for using the plant in their traditional
way if they lose their rights to it.

671 Riley, “Straight Stealing.”
670 Riley, “Straight Stealing.”
669 Riley, “Straight Stealing.”
668 Riley, “Straight Stealing.”

667 Angela R. Riley, “‘Straight Stealing’: Towards an Indigenous System of
Cultural Property Protection,” Washington Law Review, 2005, 69–164, 79.

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This process often involves pharmaceutical companies
using Indigenous Knowledge to identify medicinal plants.
Indigenous Knowledge is a body of knowledge, observations,
practices, philosophies, and beliefs developed by Indigenous
people, passed down from generation to generation, based on
lived experiences, and interactions with the environment.672 As
pharmaceutical companies seek treatments in plants such as
psychedelics, the research process is lengthy and expensive.
Using Indigenous Knowledge of medicinal plants instead of
discovering them individually increases efficiency by over 400
percent.673 Therefore, the world market for medicinal plants
discovered by Indigenous communities is valued at up to $43
billion.674

The United States has a history of lenient patent laws,
allowing the biopiracy of many plants and their medicinal
applications. In 1995, a United States patent was granted to two
researchers at the University of Mississippi Medical Center
filed for the oral and topical use of turmeric powder from India
as a surgical wound and ulcer healing agent.675 This was
allowed despite the fact that evidence of ancient Ayurvedic
texts on traditional Indian medicine, books about home
remedies. Simultaneously, previous scientific publications
proved that turmeric has been known and used as a wound
healer long before the University of Mississippi Medical
Center even existed.676 Similarly, in 1993, American company
AgriDyne received a United States patent for the use of neem
oil extract as an insecticide and fungicide in the United States

676 Jayaraman, “Patent on Indian Herb.”

675 K. S. Jayaraman, “US Patent Office Withdraws Patent on Indian Herb,”
Nature 389, no. 6646 (1997), https://doi.org/10.1038/37838.

674 Reid, “Biopiracy.”
673 Reid, “Biopiracy.”

672 “Indigenous Knowledge and Traditional Ecological Knowledge,”
National Parks Service, accessed February 29, 2024,
https://www.nps.gov/subjects/tek/description.htm.

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and the European Union.677 Neem is a tree that has been used in
India for over two thousand years as a medicine, cosmetic, and
insect repellent. Once the patent was approved and came into
effect, the European Union struck it down for lack of novelty
because it had proof of traditional usage, although the patent
was upheld in the United States. The Indian government spent
nearly six million dollars fighting these cases.678

Lack of novelty can help protect these resources when
backed by Indigenous Knowledge of these resources. However,
especially seen with historically marginalized people, novelty
can often be difficult to prove. For an invention to be patented
in the United States, it needs to be qualified as a novel
invention. To be novel, “it either could not have been known or
used by others in the United States or have previously been
patented or described in a printed publication in the United
States or a foreign country.”679 Therefore, if a medicinal plant is
known to Indigenous people or published, it should be
protected from patenting. However, with lack of publishing, it
can be challenging to prove if it is known by Indigenous
people. Additionally, by tweaking a minor part of the plant or
the procedure in which the plant is used for medicinal
purposes, novelty can be justified, especially against
historically marginalized people.680 Most Indigenous
Knowledge on medicinal resources is not written or published
and is instead passed down orally, which increases the
vulnerability of patenting by non-Natives. If the traditional
Indian documents on turmeric were officially published and
reviewed by the United States patent office, India would not
have needed to spend millions of dollars fighting the case.681

681 Reid, “Biopiracy,” 90.
680 Reid, “Biopiracy,” 92.
679 Reid, “Biopiracy,” 82.
678 Reid, “Biopiracy,” 90.
677 Reid, “Biopiracy,” 89.

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Following the turmeric and neem cases, India’s
National Institute of Science Communication and Information
Resources (NISCIR) started collecting information on 130,000
traditional Indian medicinal products to publish in a database.
The European Patent Office (EPO) entered an agreement with
India to gain access before granting any patents involving
botanical knowledge to the database to help prevent future
cases like these.682 This was a progressive step towards
preventing biopiracy, as if the knowledge of a plant’s medicine
uses has been previously published, it cannot be patented.

Implementing this system with Native American
medicine would prove to be almost impossible. Tracking down
all Traditional Knowledge on medicinal plants spanning
thousands of years and all over the country would be a nearly
impossible and costly feat, if possible at all. The database
project in India had a budget of $2 million. Much Indigenous
Knowledge is passed down orally and uses different names for
plants than what scientists use. Additionally, due to the closed
nature of many Native American practices, community
members may feel uncomfortable sharing their sacred
knowledge that has traditionally only been passed down orally
from generation to generation.683

A database may pose additional concerns and may
inadvertently subject this knowledge to further biopiracy. An
estimated 4,000 plants with medicinal properties have been
patented on plants that are already known.684 Therefore,
Traditional Knowledge could more easily be obtained and
copied. It is also subject to being misconstrued or distorted and
then patented. For example, a United States Patent was granted
for a solution of leaves from the aloe vera plant and water that
was documented in Indian literature.685 The patent was granted

685 Reid, “Biopiracy,” 92.
684 Reid, “Biopiracy,” 92.
683 Reid, “Biopiracy,” 82.
682 Reid, “Biopiracy,” 91.

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on the grounds that the solution used only chlorinated water.686

By changing one element such as the kind of water or the
temperature of the water, the practice is then eligible to be
patented. The United States often exercises leniency when
defining novelty; therefore, companies that pirate and profit
from Indigenous resources often rely on United States patent
law.

In 1974, the founder of the International Plant Medicine
Corporation based in California, Loren Miller, traveled to
Ecuador, where he obtained samples of ayahuasca from a local
Indigenous tribe. Ayahuasca is a psychoactive plant that has
been used by Indigenous South Americans and is often
administered by a shaman in a long healing ceremony for its
therapeutic and medicinal benefits.687 The plant is sacred to
many Indigenous South Americans; the name translates from
Quechua as the vine of “souls.”688 Miller took samples back to
California to reproduce and study for its potential uses in
cancer treatment and psychotherapy. In 1986, Miller obtained
United States Plant Patent No. 5,571 for the specific strain,
awarding him the exclusive right to grow and sell it.689 In a
statement, Miller claimed: “If this patent was causing any harm
to the Indigenous people, I would have it canceled myself.”690

However, in 1994, the Amazon Alliance, Center for
International Environmental Law, and Coordinating Body of
Indigenous Organizations of the Amazon Basin challenged the
patent. They were successful on the basis that the strain was no

690 Press, “Ayahuasca on Trial,” 352.
689 Press, “Ayahuasca on Trial,” 329.

688 Sara V. Press, “Ayahuasca on Trial,” History of Pharmacy and
Pharmaceuticals 63, no. 2 (2022): 328–53,
https://doi.org/10.3368/hopp.63.2.328, 329.

687 Jonathan Hamill et al., “Ayahuasca: Psychological and Physiologic
Effects, Pharmacology and Potential Uses in Addiction and Mental Illness,”
Current Neuropharmacology 17, no. 2 (January 7, 2019): 108–28,
https://doi.org/10.2174/1570159x16666180125095902.

686 Reid, “Biopiracy,” 92.

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different from the original form of the plant that Miller
collected and therefore lacked novelty. In 1999, the United
States Patent and Trademark Office revoked the patent.
However, Miller succeeded in his patent reinstatement in 2001
based on evidence that the shapes of the leaves and stems of his
breed were novel.691 Miller left many Indigenous people
concerned with his actions, despite his supposed good
intentions to study the beneficial uses of a plant. Miller’s patent
reinstatement by the United States after protests and legal
action from Indigenous-led groups demonstrates the
unwillingness to listen to and consider Indigenous voices in
these matters. This case demonstrates again how lenient patent
law in the United States can be, and how easily novelty can be
proven.

In 2022, San Francisco-based company Journey Colab,
which uses psychedelics to study addiction treatment, obtained
a patent for lab-made mescaline (the active ingredient in
peyote). However, it became the first company of its kind to
publish a patent non-assertion pledge. This means that the
company vowed to not sue Indigenous people for patent
infringement for using peyote in their traditional way.692

Additionally, Journey Colab established The Journey
Reciprocity Trust, devoting a small portion of the company’s
founding equity to Indigenous communities; however, the
company does not specify which Indigenous communities and
whether they are solely ones that use peyote.693 Although this
initiative is a progressive addition to studying psychedelics for
medical research and innovation in mental health care, it is
unclear to what extent Indigenous communities were

693 Journey Colab, “Reciprocity Trust.”

692 “The Journey Colab Reciprocity Trust,” Journey Colab, accessed
November 9, 2023,
https://www.journeycolab.com/the-journey-colab-reciprocity-trust.

691 Press, “Ayahuasca on Trial,” 331.

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thoroughly consulted, and whether they provided consent and
are receiving benefits from this process.

Hopefully, companies continue to follow this precedent.
However, there are no regulations or incentives to follow suit.
A non-assertion pledge is not required, enforceable by law, or
even encouraged. As psychedelic lab research accelerates
companies continue to receive patents, the federal government
must have a role in protecting the rights of Indigenous people
to not be sued for patent infringement for using their crucial
traditional resource of peyote.

IV. The Federal Government’s Role

Protected by the patent laws of the United States,
private companies can become the new gatekeepers of
Indigenous Knowledge and resources. As this surge in
psychedelic research accelerates, policies need to be
implemented quickly to protect against exploitation and
biopiracy of Indigenous resources such as peyote on United
States soil. Patent law leniency jeopardizes the autonomy of
Indigenous people’s right to use peyote if companies gain the
right to peyote or mescaline.

New medical research of psychedelics spearheads
potential progress in the mental health medical field.
Discoveries in psychedelics have the potential to improve
countless lives. Many supporters of these initiatives argue that
no more roadblocks or limitations should be placed on these
endeavors.694 However, “progress” in the United States often
comes at the expense of Native American livelihoods.695

695 John Gast, “American Progress,” An allegorical female figure of
America leads pioneers westward, as they travel on foot, in a stagecoach,

694 Alicia Victoria Lozano, “Candidates Who Support Psychedelics as
Medicine Get a Political Action Committee,” NBCNews.com, March 20,
2023,
https://www.nbcnews.com/news/us-news/candidates-support-psychedelics-
medicine-get-political-action-committe-rcna75295.

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While the pursuit of these new medical advances for
Americans accelerates, Native Americans still experience
unequal access to health care. The life expectancy of Native
Americans is five years shorter than the general United States
population.696 Native Americans are 20 percent more likely
than white Americans to experience colon and lung cancer.697

Native Americans are more likely to commit suicide than white
Americans, with those under the age of 25 being three times
more likely.698 The Indian Health Service (IHS) expenditures
per patient are three times lower compared to Medicare.699 The
IHS struggles with the retention and recruitment of
professional staff, causing grave limitations and a lack of
continuity of care. IHS primary care physicians often feel
overworked and are forced to take on a higher degree of patient
complexity than they can manage without specialty
consultation.700 Lack of attention and funding for the IHS from
Congress leads to poor health and the premature deaths of
Native American individuals. Funding towards research in
psychedelics has the potential to deliver transformative health
care, however, simultaneously, the Indigenous people of this
land still lack the funding and support to meet their basic
healthcare needs.

700 Kruse et al., “The Indian Health Service.”

699 Desiree L Fox, Ciara D Hansen, and Ann M Miller, “Over-Incarceration
of Native Americans: Roots, Inequities, and Solutions,” Safety and Justice
Challenge, n.d., https://doi.org/https://safetyandjusticechallenge.org/, 35.

698 Kruse et al., “The Indian Health Service.”
697 Kruse et al., “The Indian Health Service.”

696 Gina Kruse et al., “The Indian Health Service and American
Indian/Alaska Native Health Outcomes,” Annual Review of Public Health
43, no. 1 (2022): 559–76,
https://doi.org/10.1146/annurev-publhealth-052620-103633.

conestoga wagon, and by railroads, where they encounter Native Americans
and herds of bison., The Library of Congress, 1872, Autry Museum of the
American West, Los Angeles, California,
https://www.loc.gov/item/97507547/.

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V. Legislation and Agreements

One hundred and forty-four other countries have vowed
to take steps against the exploitation of Indigenous resources
by signing the Nagoya Protocol on Access and Benefit
Sharing.701 The Nagoya Protocol was established by the United
Nations in 2014 to protect Indigenous resources such as peyote,
turmeric, and neem against biopiracy. This international treaty
stresses working with Indigenous communities to agree upon
terms in an informed, consensual manner with an emphasis on
benefit sharing. When countries abide by the Nagoya Protocol,
Indigenous communities need to consent to the utilization of
their traditional knowledge and genetic resources by any
government, individual, or company.702 Further, they also need
to negotiate mutually agreed upon written terms for the
equitable and fair sharing of profits and subsequent third-party
use.703 Each party may take legislative, administrative, or
policy measures to ensure that the terms of their agreement are
upheld.

The Nagoya Protocol also promises that Indigenous
Knowledge associated with genetic resources is accessed with
the prior and informed consent of the Indigenous communities.
In addition, under the Protocol, there must be consideration for
the Indigenous and local communities' customary laws,
community protocols, and procedures. Parties who benefit
from the utilization of genetic resources are encouraged to
contribute to the conservation efforts and sustainable uses of
the resource. Although the Protocol was opened for signatures

703 United Nations Treaty Collection, “Nagoya Protocol.”
702 United Nations Treaty Collection, “Nagoya Protocol.”

701 “Nagoya Protocol on Access to Genetic Resources and the Fair and
Equitable Sharing of Benefits Arising from Their Utilization to the
Convention on Biological Diversity,” United Nations Treaty Collection,
n.d.,
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=X
XVII-8-b&chapter=27&clang=_en.

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in the United Nations headquarters in New York for a full year,
the United States has never signed it.704

In 2021, the Biden- Harris administration announced
new pledges to support Native American communities and
elevate Indigenous Knowledge to inform federal
policymaking.705 The administration outlined its goals of
growing mutually beneficial relationships with Tribal Nations
and Indigenous people, as well as “considering, including, and
applying Indigenous Knowledge in Federal research, policies,
management, and decision making.”706 This is a tremendous
and properly celebrated achievement in legitimizing
Indigenous Knowledge and elevating Indigenous voices in
initiatives such as climate resilience and environmental
restoration. Along with this statement, the administration
vowed to strengthen the Tribal consultation model.707 Tribal
consultation is the government-to-government dialogue
between official representatives of Tribes and Federal agencies
to discuss Federal proposals before the Federal agency makes
decisions on those proposals.708 New consultation training and
guidebooks will be created to ensure that Tribal
self-government, sovereignty, and rights are respected and
upheld. These statements sound promising. However, the

708 Government-to-government dialogue between official representatives of
Tribes and Federal agencies to discuss Federal proposals before the Federal
agency makes decisions on those proposals.

707 The White House “Indigenous Knowledge Guidance.”
706 The White House “Indigenous Knowledge Guidance.”

705 “Fact Sheet: Biden-Harris Administration Announces New Actions to
Support Indian Country and Native Communities Ahead of the
Administration’s Second Tribal Nations Summit,” The White House,
November 30, 2022,
https://www.whitehouse.gov/briefing-room/statements-releases/2022/11/30/
fact-sheet-biden-harris-administration-announces-new-actions-to-support-in
dian-country-and-native-communities-ahead-of-the-administrations-second-
tribal-nations-summit/#:~:text=Initiated%20at%20the%202021%20Tribal,p
romote%20environmental%20sustainability%20and%20the.

704 United Nations Treaty Collection, “Nagoya Protocol.”

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guidebook, which was published in 2023, is seriously flawed. It
includes tips for consulting with Tribal Nations such as
“[a]void using patronizing language when working with
Tribes” and “do not mistake kindness, silence, or politeness for
consent or agreement,” but does not require obtaining consent
from Tribes. In fact, in the 121-page document, requiring
consent is only mentioned when it involves removing Native
American human remains, cultural items, and archeological
resources from Tribal lands.709 Therefore, although the federal
government may use Traditional Knowledge to guide federal
agencies, Native Americans are still powerless to consent to
how Indigenous Knowledge is used.710 Additionally, the federal
government is still not required to receive consent from Native
Americans about federal proposals involving Tribes.

Free, prior, and informed consent (FPIC) must be
implemented in the United States. FPIC is the right of
self-determination of Indigenous people, established by the
United Nations. Under FPIC, when decisions are made by

710 Editorial Note: Here, the author intended to justify the use of capitalizing
Indigenous and Traditional Knowledge. These terms are capitalized by the
DOI and White House. See the following sources for inspiration of this
capitalization: “Departmental Policy on Indigenous Knowledge | Indian
Affairs,” accessed March 23, 2024,
https://www.bia.gov/service/tribal-consultations/departmental-policy-indige
nous-knowledge; “Indigenous Knowledge | OSTP,” The White House,
accessed March 23, 2024,
https://www.whitehouse.gov/ostp/ostps-teams/climate-and-environment/indi
genous-knowledge/; However, I have also seen literature fail to capitalize
Indigenous Knowledge and Traditional Knowledge. See the Harvard Public
Health Magazine for recent works without capitalization:Harvard Public
Health Magazine and Makepeace Sitlhou Tu Lucy, “How Indigenous
Knowledge May Shape the Future of U.S. Policy,” Harvard Public Health
Magazine (blog), June 5, 2023,
https://harvardpublichealth.org/equity/indigenous-knowledge-to-shape-u-s-a
pproach-to-health-climate/.

709 DoD Legacy Resource Management Program, Department of Defense
Tribal Engagement Guidebook, 2023.

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governments that impact Indigenous people, resources, or land,
Indigenous people must consent without coercion, intimidation,
or manipulation prior to authorization of activities. They must
also receive sufficient knowledge about the proposed activities.
In the federal government’s aim to strengthen ties with Tribal
Nations, no effort has been made to implement FPIC. FPIC in
Tribal consultation is outlined in Article 19 of the United
Nations Declaration On The Rights Of Indigenous Peoples
(UNDRIP), declaring that states must consult with and obtain
FPIC from Indigenous people “before adopting and
implementing legislative or administrative measures that may
affect them.”711

The United States did not support UNDRIP when it was
adopted by the General Assembly in 2007 but later endorsed it
in 2010 due to administration change. However, alongside the
endorsement came a preface; a document expressing that the
Declaration will have limited legal power.712 The United States
announced that instead, the “[d]eclaration expresses aspirations
that the United States seeks to achieve.”713 Although the
Biden-Harris administration’s steps to improve Tribal
consultation display progress, the United States, if it wants to
keep its word about aspiring to uphold UNDRIP, must begin to
implement FPIC in Tribal consultation.

VI. Conclusion

Before proceeding with the expansion of psychedelic
research and legalization, the United States must instate
protections for Native American. First, the United States must
sign and abide by the Nagoya Protocol. This will codify Native

713 Arndt, “‘Rights of Indigenous Peoples.’”

712 Jordyn Arndt, “Explanation of Position on ‘Rights of Indigenous
Peoples’” (New York, New York, November 7, 2019).

711 United Nations, United Nations Declaration on the Rights of Indigenous
Peoples, 2007.

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Americans’ ability to use peyote without risk of criminalization
for patent infringement. It will ensure that Native American
people, communities, Indigenous Knowledge, and resources
are protected and used under mutually agreed-upon terms.
Second, the Biden-Harris administration must fully ratify and
abide by UNDRIP. This will require Native Americans to
provide free, prior, and informed consent for the use of their
resources and Indigenous Knowledge. Tribes and companies
must reach mutual agreements on the sharing of benefits,
extraction, and use of peyote. Third, Tribal law must be
legitimated and considered in matters involving Tribes. Fourth,
funding for the IHS including addiction, trauma, and mental
health treatment must be increased to mitigate unacceptable
disparate health outcomes that leave Native Americans behind.
These actions are not just empty promises, statements, or
aspirational documents. Native American rights and
sovereignty over their traditional resources must not be
protected “aspirationally,” but protected by no less than United
States law.

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