By Sam Mendez, executive director of the Cannabis Law and Policy Project
In the wake of a recent raid on their land of 30,000 plants by the U.S. Drug Enforcement Agency (DEA), the Menominee Indian Tribe in Wisconsin has filed suit, demanding declaratory judgments that its cultivation of hemp was legal and asking for declaratory relief and attorney’s fees. Interestingly, the tribe claimed no monetary damages. The tribe claims that the crop was to be used as hemp fiber for use in manufacturing to improve their local economy, and that no plants exceeded 0.3% in THC, a level set by the Agricultural Act of 2014 (the “Farm Bill”)1 and by Tribal law. It’s been reported that the DEA claims that the plants were high-grade marijuana.
The THC level of the marijuana is an important factual contention, and one that could lengthen a case considerably. Perhaps that is the reason why the tribe is only seeking a declaratory judgment that their cultivation of hemp is legal, the success of which would allow them to begin another crop next year. The tribe hopes to have a court decision by spring.
In their complaint, the tribe made three principal arguments. First, they argued that they qualify functionally as a “state” and therefore the Farm Bill and its THC level requirement is applicable. This seems to be a rather creative argument, and its unclear how the court would rule on this question. Certainly an Indian reservation is not a “state” as commonly understood, but the Farm Bill has a specific definition of “state”: “(A) a State; (B) the District of Columbia; (C) the Commonwealth of Puerto Rico; and (D) any other territory or possession of the United States.” The tribe argues that tribal land is included under (D), so while it may seem outlandish at first glance, the argument is at least reasonable.
Secondly, the tribe argues that Wisconsin state cannabis laws, which make cultivation of cannabis illegal, do not apply to them by nature of their federally recognized reservation status. Given that many reservations operate casinos that are against laws of the state which surrounds them, this argument rings true. But it’s relevancy is questionable because the DEA is part of the Federal government and needs no state legal justification to conduct raids.
Finally, the tribe seeks further protection under the Farm Bill by virtue of its ties to the College of the Menominee Nation, which it argues is growing the hemp for academic research. The Farm Bill allows cannabis cultivation by universities if done for academic research purposes and if legal in the state in which it resides. The tribe again asserts its first argument, that for purposes of the Farm Bill they are functionally a state. While they may succeed in this argument, its questionable that these plants were actually for research purposes. The tribe stated the university was researching the economic viability of hemp for the reservation. So why cultivate 30,000 plants? It seems more like the tribe was cultivating them for economic purposes, and any intent to research was secondary.
Thus, their first argument is likely their strongest, which unfortunately relies on the factual question of whether the plants had a low enough THC level to qualify under the Farm Bill. It will be interesting to see how the case plays out. Some tribes are entering the marijuana industry, but this is occurring in marijuana-friendly states like Washington. I predict the court will either rule against the tribe outright, recognizing the DEA’s authority, or it will wait to see the factual question of the confiscated plants’ THC content answered.
1 See Agricultural Act of 2014 at 264, available at http://www.gpo.gov/fdsys/pkg/BILLS-113hr2642enr/pdf/BILLS-113hr2642enr.pdf.