White Plumes wait for decision on hemp

Court procedures may be barrier to planting of new crop

Part I of II

By Hazel Bonner

RAPID CITY  United States District Court Judge Richard Battey issued a temporary restraining order (TRO) on August 13 2002 that prevented the Wa Cin Hin Ska Tiospaye,which includes Alex and Percy White Plume and other members of their extended family, from selling the crop of hemp they had harvested the previous week. A hearing on whether the TRO should become a permanent injunction has never been held.

The TRO said Alexander White Plume, Percy White Plume, and their "agents, servants, assigns, attorneys and all others acting in concert with them,"were restrained" until further ordered of the Court from violating Title 21 of the United States Code, including possessing, manufacturing or distributing marijuana, further including "industrial hemp." The order came the night before a harvest celebration was scheduled. The harvest celebration was to include the transfer of the hemp crop harvested the week before to Tierra Madre, and the Madison Hemp and Flax company.

            Title 21 of the USC includes the Controlled Substances Act (CSA). A major issue in this case is whether industrial hemp is a controlled substance and whether the code intends to stop the sale and distribution of the stalks, oil, and seeds and finished products made from those items. Also at issue is whether the CSA applies in this case.

That order prevented the Tiospaye from reaping any benefits from their hemp crop for the third year in a row.  Waiting for the final resolution, the White Plumes worry that that resolution may not come in time for planting the hemp crop this year.


 The Oglala Sioux Tribe (OST) passed an ordinance in 1998 distinguishing industrial hemp from marijuana. That ordinance continued the prohibition on the use and proliferation of marijuana. The Ordinance (No. 98-7) stated as its authority the fact that the Treaty of 1868 acknowledged the right of the tribe to grow food and fiber crops from the soil.

In addition the ordinance cited international law and the North American Free Trade Agreement (NAFTA) and the General Agreement on Tariffs and Trade (GATT), which specifically classify industrial hemp as a commodity that is separate and distinct from any narcotic.

Following the passage of the tribal ordinance by OST, the DEA urged the United States District Court to inform the tribe that growing industrial hemp on the reservation would violate the Federal CSA. District Court Judge Karen Schreier wrote a letter to the tribe informing them of that fact and that anyone in violation of that act faced prosecution for a crime under CSA.

 In spite of that fact, the Tiyospaye, decided to plant industrial hemp beginning in 2000, on the land along Wounded Knee Creek inherited from the Oyuhupi Tyospaye, which was made up of their ancestors.  The United States Drug Enforcement Administration swarmed the White Plume land in 2000 to destroy their hemp crop.

In 2001 Bruce Ellison, their attorney,  advised the White Plumes to sign a consent to authorize DEA agents to search their property, and to seize and destroy any hemp plants discovered.  Ellison explained that White Plume faced many years in prison if prosecuted for a crime for growing the hemp.

In a letter to Bruce H. Ellison dated July 27, 2001, Michelle Tapken, United States Attorney for the District of South Dakota confirmed the signing of the consent. That letter granted use immunity to Alex White Plume. Use immunity means that his signing of the search and seizure authorization and the results of the search could not be used against him in criminal proceedings

The grant of use immunity was conditioned upon his not planting or cultivating any such crop in the future without the authority of an order from the United States District Court. No paperwork was filed in federal court to seek such an order.

This past year, DEA and the United States Department of Justice decided not to pursue the case as a crime, in spite of the clear violation of the use immunity agreement, but instead sought the TRO that was ordered by Judge Battey.  A TRO proceeding is a civil proceeding.


A number of things have happened since the granting of the TRO that have delayed a hearing for a permanent injunction. Defendants in the TRO action filed a counterclaim against the United States Government on August 30, 2002. With that action, the United States became a counter defendant.

The counter claim sought the lifting of the TRO against the defendants and further sought a TRO against the government to prevent them from interfering in the production of hemp on the Pine Ride Reservation. The claim included an answer to the complaint which pointed out reasons why the CSA did not apply and why the United States Government did not have jurisdiction to stop the production of hemp in Indian Country.

On August 30 Tierra Madre, a Delaware limited liability company (LLC) and the Madison Hemp & Flax Company, a Kentucky corporation filed a motion to intervene as defendants in the action against the White Plumes and as third party plaintiffs in the action against the United States government.

The two companies had entered into a contract with the Tiyospaye to purchase the hemp crop for processing into finished products.  The companies had also provided seeds and other assistance to the White Plumes in their efforts to grow industrial hemp. They claimed that they should be specifically named as defendants because they had acted in concert with the named defendants in a contractual relationship. They also claimed that they had been harmed by the actions of the US government and therefore had standing to become plaintiffs in the counterclaim.

On September 17, Thomas J. Ballanco filed a motion to intervene as a party defendant. He claimed that since he had acted as attorney for the Tiyospaye  for the four years prior to the TRO, he was acting in concert with them. He further stated that, but for the TRO, he would be "assisting the Wa Cin Hin Ska Tiospaye, in an advisory and physical capacity, with the harvesting of valuable industrial hemp stalks and seeds, the processing of the stalks into fiber and hurd and the distribution of such materials both on and off the Pine Ridge Reservation, including the distribution of viable seeds to other land-use associations and Tiyospae on the Pine Ridge Reservation that Thomas J. Ballanco assists and advises in his professional capacity."

The two companies and Ballanco all claimed an interest relating to the subject of the TRO and the counterclaim against the United States Government. Both sought the lifting of the TRO as did the counterclaim.

On October 16, the United States Attorney filed a motion for summary judgment on their complaint, seeking a permanent injunction without the need for a trial. Such a motion claims that there is no issue of material fact that needs to be interpreted by a jury, since the defendants demanded a jury trial.  If the judge is convinced that all facts in the case leave no room for interpretation by a jury, he could grant summary judgment in favor of the United States.

On October 22, Judge Battey denied the motion by Thomas Ballanco to intervene as a party defendant, but approved the motion of Tierra Madre and Madison Hemp to join as party defendants. Ballanco filed a motion for reconsideration that was denied by Battey on November 12.

Judge Battey sent a letter to all counsel on November 11, continuing the permanent injuction hearing scheduled for November 12 pending resolution of the government's motion for summary judgment.

On December 5, Ballanco filed a notice of Appeal of the order denying his motion to intervene. Because that is an appealable order, the court issued an order continuing all deadlines pending the resolution of the appeal on December 16. The 3 volumes of the court file with two expando files of exhibits was mailed to the Eighth Circuit Court of Appeals by the District Court on January 9, 2003.


          A briefing schedule was sent to Ballanco, known as the appellant, giving him 30 days to file an appeal brief.  The United States, known as the appellee, is given 30 days from date of service of the appellant brief  to file their brief and the appellant can then do a reply brief.

            Following the completion of all briefing, the case is assigned to a three-judge panel and is put on the docket for oral arguments, or for a decision without argument, if the parties waive such arguments. The decision can be issued at any time the panel has time to consider the case and issue an order. It is often not made for several months. The court of appeals overturned a recent summary judgment order in favor of the Jail on August 14, just two weeks after being assigned to a three-judge panel on August 1, 2002.

            If the process moves at the greatest speed, it is unlikely that it will be completed in time for spring planting of a new industrial hemp crop.  Ballanco felt the issues were important enough to appeal the denial of his right to intervene. The present plaintiffs did not object to the joinder of any the defendant intervenors.

            Ballanco said in a phone interview that industrial hemp does not meet the definition of a controlled substance. He further said that since congress had specifically exempted the mature stalks, fiber, oil or cake made from the seeds and other compounds and manufactures of such mature stalks of the industrial hemp crops from the definition of hemp, that no defendant had engaged in illegal activity.

            Ballanco added: " the broad issue here is not preventing the planting of one hemp crop on one reservation, but the entire concept of tribal sovereignty, treaties, and the relationship of Tribes with the United States Government."

            Part II will look at those broader issues, discuss the plaintiffs counterclaim against the United States, and discuss the failure of the hemp initiative in South Dakota.

Hazel Bonner is a freelance writer who writes from her home. She can be reached electronically at hbonpidge@hotmail.com, by phone at 343-4467 and by mail at PO Box 3712, Rapid City, SD 57709-3712