by Hazel Bonner
Lakota Times


Pubdate: Thu, 02 Aug 2001
Source: Lakota Nation Journal (SD)
Copyright: 2001 Lakota Nation Journal
Author: Hazel Bonner


PINE RIDGE, SD. Alex White Plume had to watch his tiospaye's hemp crop cut down by federal agents on Monday, July 30 for the second time.

U.S. Attorney Michelle Tapken reacted quickly to the letter from Oglala Sioux Tribal President John Steele ordering federal law enforcement officers to have no further contact with tribal members regarding the cultivation of industrial hemp.

Tapken ordered a search of a field consisting of approximately three acres three miles north of Manderson, South Dakota on land of the White Plume tiospaye. A consent to search document to be signed by Alex White Plume as head of the White Plume tiospaye and Bruce Ellison as attorney for the White Plume tiospaye was mailed to Ellison at his Rapid City law office. White Plume and Ellison each signed the document.

President Steele stood by and watched as the crop was destroyed. Ellison, who convinced White Plume to sign the consent to search, was not present as the crop was destroyed.

A letter attached to the consent to search document guaranteed White Plume immunity from criminal prosecution based on evidence seized by Drug Enforcement Agency (DEA) agents. The letter authorized the agents to seize any plants of the genus Cannabis sativa, whether referred to as hemp or marijuana, and to destroy the plants.

The grant of use immunity was conditioned upon White Plume not planting or cultivating any such crop in the future without the authority of an order from the United States District Court.

The consent document specifically declared that White Plume had not been threatened, nor forced in any way to consent to the search. It states that White Plume freely consents to "this search, seizure and destruction, pursuant to the terms contained in the attached letter dated July 27, 2001." White Plume had been told that he faced 10 to 100 years in federal prison if prosecuted under the Controlled Substances Act.

A field containing one and one-half acres of hemp plants was cut last year and burned at Ellsworth Air Force Base. White Plume considered the hemp as the mainstay of an agricultural crop that could aid his Tiospaye in becoming self-sufficient. He said he is "a proud grandparent trying to find economic independence for myself and my people so we will no longer be considered a dependent nation."

Several legal questions remain unresolved. The first is whether industrial hemp is covered under the Controlled Substances Act. The second is, even if the industrial form of hemp is a controlled substance, does the Controlled Substances Act give federal agents jurisdiction over its growth in Indian country?

Industrial hemp is a plant which is used to produce building materials, insulation, fuel and many other products. White Plume set up his own lumber mill to produce his own lumber. He made a hemp house. He has received samples of hemp insulation from Germany. White Plume planned to manufacture his own hemp insulation if the DEA did not destroy his crop. Industrial hemp is used for ropes and twine and is reputed to make stronger products than any other material. A hemp car fueled by industrial hemp oil is currently touring the United States. The car will be in Watertown on August 3.

During World War II the United States government entered into contracts with members of the Oglala Sioux Tribe to grow hemp for government use. When the government needed the hemp, tribal members agreed to help them. It is doubtful that the U.S. government used the hemp as a controlled substance.

On the 28th day of July, 1998 the Oglala Sioux Tribal Council adopted Tribal Ordinance 98-27 which authorizes tribal members to grow industrial hemp as a cash crop on reservation land. The ordinance notes that today industrial hemp is a profitable international commodity that is grown legally in more than thirty countries including Canada, France, Germany, England Russia, China and Australia.

The ordinance further states that both the tribe and the United States government acknowledge that the tribe retains the right to grow food and fiber crops from the soil under the Fort Laramie Treaty of 1868. The tribe also has a retained treaty right to engage in agriculture. The ordinance says also "industrial hemp was a viable and profitable crop grown in the Pine Ridge region when the treaties were entered into between the United States and the Oglala Sioux Tribe."

Industrial hemp is distinguished from its relative plant, marijuana, based on the amount of tetrahydrocannabinol (THC) present in the respective plants. There is a genetic difference between the two plants that is both consistent and predictable, according to the tribal ordinance. Thus the tribal ordinance is not in conflict with the tribal prohibition of the use of marijuana on the reservation. In order to clarify the fact that industrial hemp is not the same as marijuana, the tribal penal code was amended to define marijuana separately from industrial hemp. Industrial hemp in the ordinance is defined 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 purposes and contain a [THC] concentration of one percent or less by weight."

Under Ordinance 98-27 White Plume, along with members of his tiospaye, Wa Cin Hin Ska, planted a one and a half acre field of industrial hemp along the banks of Wounded Knee Creek in early May 2000. White Plume invited U.S. Attorney Ted McBride and BIA Superintendent Bob Ecoffey to the planting. Neither Ecoffey nor McBride accepted the invitation.

Nearly four months later under the auspices of the Controlled Substances Act, early in the morning on August 24, armed DEA agents and FBI officers cut down White Plume's hemp crop. Twenty-five federal agents wearing bulletproof vests surrounded the field while two small-engine planes and one helicopter flew reconnaissance overhead. By 8:30 a.m. the agents had confiscated virtually all the hemp crop.

Thomas Ballanco who drafted tribal ordinance 98-27 offered to represent any person or entity who are prosecuted for cultivating industrial hemp on the reservation. White Plume has not been prosecuted. Ballanco and local attorney Ellison are allegedly preparing a civil suit against the United States government for destruction of the crop.

Because industrial hemp is not a product that is used to alter the mind, it probably should not be covered under the Controlled Substances Act. The Act however makes no distinction between industrial type hemp with a low THC content and other hemp.

Even if industrial hemp is covered under the Controlled Substances Act the remaining legal issue involves jurisdiction. Does the tribe or the federal government have jurisdiction over substance abuse offenses in Indian country?

The United States Supreme Court determined that the US government did not have jurisdiction over crimes committed by Indians in Indian Country in Ex Parte Crow Dog. They based that ruling on their interpretation of the 1868 Treaty. The Court said that no congressional act had extinguished the right of a tribe to punish the wrongdoing of its members. To change that Congress passed the major crimes act which gave the U.S. government jurisdiction over seven major crimes committed by Indians in Indian Country in 1887. That act was amended in 1988 to add seven more crimes to federal jurisdiction. Neither the original act nor its amendment listed controlled substance abuses to the list of crimes for which tribal jurisdiction was extinguished.

The Controlled Substances Acts of 1970 and 1990 do not specify that the United States government has jurisdiction over violations in Indian Country but merely states that any person violating the act in areas under federal jurisdiction are covered under the act. In Federal Power Commission v. Tuscarora Indian Nation, the Supreme Court ruled in 1960 that a general statute in terms applying to all persons includes Indians and their property.

However exceptions to that rule were set out in Donovan v. Coeur d'Alene Tribal Farm in 1985. That case held "A federal statute of general applicability that is silent on the issue of applicability to Indian tribes will not apply to them if=85the application of the law to the tribe would `abrogate rights guaranteed by Indian treaties.'

Because the Oglala Sioux Tribe has a treaty giving them jurisdiction over Indians committing crimes on the reservation, they fit into an exception to the ruling that `any person' includes Indians in Indian country. Only when Congress specifically extinguished jurisdiction over specific crimes, as they did in the Major Crimes Act is their inherent jurisdiction removed.