White Plumes are not criminals

Government insisted Indians become farmers

By Hazel Bonner

WOUNDED KNEE – Chief Crazy Horse told the United States Government that indigenous nations did not ask the white man to come to their land that the Great Spirit had given them. He said the spirit gave "us plenty of land to live on, and buffalo, deer, and antelope and other game. But you have come here, you are taking my land from me; you are killing off our game, so it is hard for us to live. we do not want your civilization! We would live as our fathers did, and their fathers before them."

One hundred and 25 years after the death of Crazy Horse and the death of a mobile way of life, The Wa Cin Hin Ska Tiyospaye decided to try and support its extended family by farming. That was just what the United States government had insisted their ancestors do when they had to give up their hunting and roaming and live on reservations set aside for them.

But the United States Government has said that the industrial hemp they have planted for three seasons in a row is a controlled substance and violates the Controlled Substances Act. For three years, the seeds were planted in the spring and grew to maturity by late summer. The White Plume Tiyospaye has been unable to reap any benefits of their labor.

A case in the United States District Court in Rapid City, with an order issued by Judge Richard Battey on appeal to the Eighth Circuit Court of Appeals, looks at more than the legality of one family planting hemp on one reservation. At stake here on the land along Wounded Knee Creek inherited from their ancestors in the Oyuhupi Tiyospaye, is the sovereignty of the Lakota nation. At issue is whether the United States Government can interfere in the rights of an 1868 Treaty tribe to grow and harvest an agricultural crop.

The United States government claimed that the growing of industrial hemp constituted the possession and distribution of the controlled substance, Cannabis sativa, commonly known as marijuana. Industrial hemp is in the same family of cannabis, but contains little or no THC, the psychotropic chemical found in marijuana.


            The answer to the United States Attorney complaint filed in this matter which led to a temporary restraining order (TRO) on August 13, 2002, was filed by attorney Bruce Ellison on August 30, 2002. That answer reminded the federal court that the 1868 Treaty required the United States government to provide each head of household with seeds and agricultural implements to begin farming.

            Ellison and Tom Ballanco, whose request  to intervene as a defendant in the case was denied and is on appeal, both agree that the agricultural provisions of the Fort Laramie Treaty of 1868, as interpreted by the Oglala Sioux Tribe to include industrial hemp, were not abrogated by the passage of the Controlled Substances Act (CSA).

            In a memorandum of law in the matter Ballanco states, "This is not now, nor has it ever been, a question of federal drug control policy. This case begins and ends with a thorough analysis of federal Indian law. This is a question of sovereignty that is very uniquely framed."

            Both attorneys state in court documents that the statutory language of the CSA does not reverse or abrogate the treaty provision permitting agricultural enterprises. According to Vine Deloria, Jr in American Indians, American Justice, the United States Supreme Court has in numerous cases stated that when a statute is specifically meant to abrogate a provision in a treaty, the statute must clearly state that intent. Ellison states in his answer, "Unless expressly abrogated by Congress, Treaties or provisions thereof, constitutionally remain the Supreme Law of the Land."

            Thus defendants claim that their right to grow agricultural crops of their choosing remains as a provision of the 1868 treaty. Ellison further states in his answer to the complaint that 18 USC  € 823 allows even the manufacture and distribution of marijuana under certain circumstances. That law states that the Attorney General "shall" register and authorize the manufacture of a "controlled substance", when it is "consistent with the United States obligations under international treaties in effect on May 1, 1971."

            In writing the tribal ordinance supporting the cultivation of Industrial Hemp, Ballanco was careful to distinguish between the possession or distribution of marijuana and industrial hemp. The definition of marijuana in the tribal ordinance is virtually identical to the definition found in the CSA. The CSA excludes "the mature stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture or preparation of such mature stalks (except the resin extracted there from), fiber oil, or cake or the sterilized seed of such plant which is incapable of germination.

One of the requirements established by the United States Supreme Court in interpreting treaties, it's that they must be liberally construed in favor of the Indians.  An early example of interpreting the plain language of a treaty occurred in Ex Parte Crow Dog,  Crow dog was sentenced to death in federal court for the death of another Indian member of the same tribe.

In that case, which involved interpretation of the 1868 Treaty, the US government said that the provision in Article 8 plainly states that the Indian parties to the agreement shall be subject to the laws of the United States.  In interpreting that provision the Supreme Court concluded that the provision applying the laws of the United States to Indians meant only those laws that applied to them as Indians, and did not mean that the general laws of the United States applied to Indians, as individuals, in Indian country.

The court explained that the chief purpose of the 1868 Treaty and its amendment codified in the act of 1877 was to introduce Indians to the "arts of civilized life." The court concluded that construing  the treaty liberally in favor of the Indians, the United States government did not have jurisdiction to try and sentence Crow Dog. His conviction and sentence were overturned.

Because there is no clear statement of intent of Congress to apply the CSA to Indians living in Indian Country, attorneys in this case claim that the treaty rights of the tribe to grow industrial hemp are not abrogated by the CSA.

The tribal ordinance allowing the growth of industrial hemp is in harmony with the CSA. The ordinance makes it illegal to grow, possess or distribute marijuana while allowing members to exercise their reserved treaty right to grow industrial hemp, which has more than 25,000 proper purposes.

In the counterclaim, the defendants state that the seizure and destruction of the industrial hemp crops has caused irreparable harm to the defendants by rendering them incapable of striving for agricultural self-sufficiency by the production and sale of the mature hemp stalks and seed, and that the actions are in violation of the 1868 Treaty.

Defendants seek a lifting of the TRO and denial of a permanent injunction against the defendants. The counterclaim also seeks a declaratory judgment declaring that the agricultural development provisions of the 1868 Treaty are not abrogated by the Controlled Substances Act. It further seeks a declaratory judgment declaring that industrial hemp is not marijuana.


Both Ellison and Ballanco, in the documents they have filed, state that the White Plume effort to cultivate industrial hemp for industrial or agricultural purposes is exempt from the CSA under Article 28 of the international 1961 Single Convention on Narcotic Drugs, as amended by the 1972 protocol.

Both attorneys state that the industrial hemp at issue cannot be properly classified as a Schedule I substance under the CSA, since it contains no or insufficient THC to create a hallucinogenic "high" and therefore cannot have a high or any substantive potential for abuse.

Both state that the specific exemptions of the parts of the cannabis plant, not used for becoming high, shows that Congress intended that marijuana, used to become high, and industrial hemp, not used for that purpose are distinguishable.

Industrial hemp is a product that could relieve this nation's reliance on oil, commercial timber and other products harmful to the environment. It is believed that it would be very difficult, if not impossible to smoke enough hemp to get high.

While the CSA does not distinguish between marijuana and hemp based on the concentration of THC, the tribal ordinance adopted by OST does. The ordinance defines industrial hemp as, "all parts and varieties of the plant Cannabis sativa, both indigenous and imported, that are, or have historically been cultivated and harvested for fiber and seed purposed and contains a THC concentration of one percent or less by weight.

            The Declaration of Independence was written on hemp paper and the 1868 Treaty may also have been written on hemp paper. Hemp was a major industrial crop in this country and the "hemp for victory" campaign of the United States government during World War II paid farmers and tribes to grow hemp to replace the fiber needed for may products in the war effort.

 During the 1800's industrial hemp was a stable agricultural crop and in the 1868 Treaty, the government was trying to get Indians to switch over to an agricultural base. Ballanco says, "There's no doubt that American Horse and Red Cloud could have gone right from the treaty meeting and planted some industrial hemp.