Alex White Plume has long asserted that the right to grow and manufacture hemp is guaranteed by longstanding treaties signed between the Oceti Sakowin and the United States government. Photo from The Flying Cloud Eco-DiscoveryTour

White Plume's Hemp Injunction Lifted
By Brandon Ecoffey
Lakota Country Times Editor
www.lakotacountrytimes.com

PINE RIDGE -- In a ruling that is being called a win for tribal sovereignty a federal judge has lifted a decade old injunction against an Oglala Lakota farmer that prevented him from cultivating industrial hemp.

Alex White Plume has long asserted that the right to grow and manufacture hemp is guaranteed by longstanding treaties signed between the Oceti Sakowin and the United States government. In 2000, at his ranch located on White Horse Creek just north of Manderson, SD, White Plume stood on his treaty rights and began cultivating his own crop of industrial hemp.

The plant has been packaged as a possible solution to the chronic poverty that has consumed the Pine Ridge Indian Reservation for decades. However the federal government at that time failed to recognize the chemical differences between marijuana and hemp and opted to burn White Plume's harvests under the assertion that he, and his brother Percy, had violated the controlled substances act that prohibits the cultivation of marijuana. White Plume had not been growing marijuana but instead was set to produce non-hallucinogenic hemp.

In 2002 the federal government filed a complaint against the brothers claiming that they "as enrolled members of the Oglala Sioux Tribe... in concert with others, have manufactured, planted, cultivated and grown marijuana on three successive crop years beginning with the 2000 crop year... (and) have utilized federal trust lands for the manufacture, distribution and possession with the intent to distribute... marijuana.” Lawyers for the government sought a permanent injunction against the White Plumes preventing them from continuing their hemp operation.

In response to the allegations made by the government the two hemp farmers asserted that they were "cultivating industrial hemp exclusively for industrial or horticultural purposes” and were “exempt from the application of the Controlled Substances Act". And furthermore in an argument that would prove to be far ahead of its time the White Plumes challenged the validity of the federal government's classification of hemp as a controlled substance.

"This order brings some justice to Native America's first modern day hemp farmer. For over 10 years, Alex White Plume has been subject to a one-of-a-kind injunction which prevented him from farming hemp'" said Tim Purdon of Robins Kaplan Law.

In a response to the court they would argue that industrial hemp "cannot be properly classified as a Schedule I substance under 21 U.S.C. [§] 812, since it contains no or insufficient THC2 to create a hallucinogenic ‘high’ and therefore cannot have a high or any substantive potential for abuse." The two asked the court for an immediate ruling in the hopes that court would prevent federal drug agents from again raiding and burning the coming harvest.

In December of 2004 the court ruled that "hemp is a variety of Cannabis sativa L.” and that the chemical difference between hemp and marijuana was not relevant despite the fact that without the presence of THC an individual could not become intoxicated. The court would go on to say "that it is in the public’s best interest, and that it is their desire, to tightly regulate the cultivation of cannabis". The injunction requested by the federal government would be granted by the courts and is still the only of its kind in the history of American jurisprudence.

More than a decade later science has trumped rhetoric as lawmakers views on marijuana and hemp have become more tolerant. This cultural shift has resulted in the legalization of marijuana in a number of states and widespread research in to the possibility of marijuana as a viable treatment for a variety of diseases and ailments. For the most part the debate over legalization has overlooked the potential of hemp as a boost to struggling rural economies.

In July of last year White Plume and his lawyers filed to have the injunction lifted arguing that recent developments and certain privileges granted to states should also be enjoyed by tribal-nations.

On March 28, Judge Jeffrey Viken in a ruling that lifted the more than decade old injunction that prevented Alex White Plume from establishing a industrial hemp market on the Pine Ridge Indian Reservation recognized a shifting American legal and cultural landscape pertaining to marijuana and industrial hemp. The ruling by Judge Viken signifies a reassertion of tribal sovereignty as a federal court has implied that Tribal-nations do have the same rights as states to explore the economic possibilities of industrial hemp.

In April 2000, Joe American Horse blessed a field where hemp was planted on the Pine Ridge Reservation. Photo by Slim Butte Land-Use Association

"This order brings some justice to Native America's first modern day hemp farmer. For over 10 years, Alex White Plume has been subject to a one-of-a-kind injunction which prevented him from farming hemp. The 2014 Farm Bill changed the hemp farming laws for all Americans, but it took this order to put hemp pioneer Alex White Plume on equal footing," said lawyer for White Plume, Timothy Purdon of Robins Kaplan Law. "It's a victory for Alex, but also for tribal sovereignty," added Purdon, who is also the former US Attorney for North Dakota.

A permanent injunction can be lifted based on a very narrow legal standard, however, Judge Viken recognized that the basis of the original injunction issued against White Plume was no longer applicable due to recent legal and legislative developments.

Judge Viken found that "there has been a significant shift in the legal landscape since 2004" and that the injunction was now "detrimental to the public interest".

The ruling does not completely clear the road of all legal hurdles facing tribes who want to pursue hemp production but it does provide judicial guidance to federal authorities on the rights of tribal-nations.

Lawyers for White Plume argued that provisions in the 2014 Farm Bill that allow for individual states to cultivate hemp should also be applicable to tribal nations who want to enter the market. In states that have not legalized marijuana federal authorities have resisted attempts by tribes to legalize both marijuana and hemp.

In "the 2014 Farm Bill, Congress recognized a distinction between marijuana and industrial hemp, creating for the first time an exception to the CSA allowing for the growth, cultivation, and study of industrial hemp in certain circumstances," wrote lawyers for White Plume.

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The distinction in the 2014 Farm Bill between marijuana and hemp was essentially a vindication of White Plume's 2002 argument that the chemical differences between hemp and marijuana is significant enough to warrant a legal distinction between them.

"Because industrial hemp stalks and seeds are often used to make textiles, foods, papers, body care products, detergents, plastics, biofuels, and building materials, the crop has significant economic and environmental value. Under the new Farm Bill paradigm, individual farmers, universities, and state agriculture departments are now able to explore this potential industrial hemp," they continued.

In an earlier interview with LCT Purdon pointed out the irony of the federal government's attempts to prevent tribal nations from benefiting financially from hemp legalization while allowing for individual states to continue to bring home enormous profits from marijuana sales.

In a brief supporting White Plume's goal of legally cultivating hemp under the laws of the sovereign Oglala Lakota Nation, President John Steele implored the courts to also recognize the double standard facing tribal-nations.

"Oregon has issued commercial hemp licenses to at least one of its citizens and, if the White Plume Hemp Injunction is not promptly lifted, the Oglala Sioux Tribe will require a formal response from the United States Department of Justice explaining why our members of the Oglala Sioux Tribe are not being treated favorably [sic] than a citizen of the State of Oregon who is similarly situated," wrote President Steele.

The United States Attorney's office failed to respond to the inquiry from President Steele. The lack of response is considered to be a violation of the federal trust agreement between tribes and the the United States Government.

Judge Viken would ultimately point to previous guidance that was issued by the Department of Justice that urged prosecutors to use the same standards of regulation applied to states in instances where tribal-nations want to do the same. In a document that has become known as the Wilkerson Memo the DOJ explicitly stated how US Attorney offices should proceed regarding legalization in Indian Country.

"The eight priorities in the Cole Memorandum will guide United States Attorneys’ marijuana enforcement efforts in Indian Country, including in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country. Consistent with the Attorney General’s 2010 Indian Country Initiative, in evaluating marijuana enforcement activities in Indian Country, each United States Attorney should consult with the affected tribes on a government-to-government basis," it reads.

Judge Vikin noted these memos in his ruling and also pointed to a changing landscape within the state of South Dakota.

"The shifting legal landscape is also illustrated by the action of the 2016 South Dakota Legislature. During this past legislative session, it considered House Bill No. 1054, a bill to authorize the production and sale of industrial hemp.10 A review of the proposed legislation suggests the Legislature was seeking to comply with the requirements of 7 U.S.C. § 5940 of the Agricultural Act of 2014. House Bill No. 1054 was approved by the House of Representatives on a 57-11 vote but then was deferred to the 41st legislative day by the Senate Agriculture and Natural Resources Committee, effectively killing the bill for this year," wrote Judge Viken. "All of these factors constitute “changed circumstances—changes in the nature of the underlying problem, changes in governing law or its interpretation by the courts, and new policy insights—that warrant reexamination of the original judgment."

The legality of the original injunction had been challenged based on treaty rights but Judge Viken did not rule on the motion stating "the court declines the parties’ invitation to re-litigate the initial soundness of the permanent injunction. Whether the Fort Laramie Treaty of 1868 should have protected Mr. White Plume from the injunction originally or whether the Oglala Sioux Tribe should be considered on equal footing with the States under the Agricultural Act of 2014 need not be resolved in the present motion."

(Contact Brandon Ecoffey at editor@lakotacountrytimes.com)

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