Oct 302015
 October 30, 2015

Menominee marijuana hempBy Phillip Smith

Taking advantage of a 2014 Justice Department memo giving Indian tribes a green light to participate in marijuana commerce, as well as a 2014 congressional vote allowing for industrial hemp pilot programs, Wisconsin’s Menominee Tribe earlier this year planted some 30,000 cannabis plants as part of a pilot project with the College of the Menominee Nation.

Last Friday, the DEA came and cut them all down.

The DEA says the plants were marijuana plants; the tribe says they were hemp plants. In either case, tribal officials and marijuana reform advocates don’t understand why the grow was raided. Even if it were marijuana, it appears to be an operation well within Justice Department guidelines. And that’s leading to some pointed questions about whether the feds have one standard for pot-legal states and another for the tribe-legal jurisdictions.

The memo that allows for marijuana commerce on the reservation includes eight potential enforcement triggers first formulated in a 2013 Justice Department memo (the Cole memo) advising federal prosecutors to lay off of recreational and medical marijuana operations in states where they are legal. Those triggers include diversion to other localities, money going to organized crime, and violence associated with the trade, among others.

The raid came after the tribe allowed a Bureau of Indian Affairs employee and local police to inspect the operation and take plant samples. And that visit came after a meeting between the BIA agent, the local cops, and an assistant US attorney.

According to the DEA affidavit for a search warrant, the samples tested positive for “marijuana,” although there was no measurement of THC levels in the plants.

Industrial hemp is high in fiber, but low in THC, with levels at 0.3% or less. Pot produced for the recreational market, by contrast, typically has THC levels of 15% to 20% and beyond. There is a possibility some of the plants could exceed the 0.3% limit, but not by much.

The DEA affidavit also attempted to make a case that the hemp grow was violating those Justice Department triggers. The tribe had hired Colorado cannabis consultant Brian Goldstein to consult on its grow, and Goldstein, along with Tribal Chairwoman Ruth Wapoose, had in fact guided the feds and the local cops on their tour of the operation.

But Goldstein was “white,” the affidavit noted, and several other people present appeared “non-native,” and some vehicles had Colorado plates. This, the affidavit somewhat tortuously argued, violated the memo’s provision about diversion from states where marijuana is legal to those where it is not. It seems to claim that hiring a cannabis consultant from a legal state is equivalent to importing pot from that state.

The affidavit also stretched to assert the operation was setting off other enforcement triggers. The lack of ventilation in a drying room “is a health and safety concern for the community and the individuals associated with the operation, which is a violation of the enumerated priorities listed in the Cole memorandum regarding adverse public health concerns of marijuana cultivation,” it argued.

But drying hemp stalks in closed barns is standard practice and is used by farmers around the country, including those who produced legal hemp crops this year in Colorado and Kentucky.

And security personnel guarding the property had guns, leading the BIA agent to question “the ability for the security team to have weapons for protection because it would violate the Cole memorandum.”

Now, the grow has been destroyed, any decision on criminal prosecution is in the hands of federal prosecutors, and the tribe and other observers are wondering just what is going on. After all, the Menominee aren’t the only tribe to take the Justice Department at its word, only to be raided down the road.

This past summer, the DEA hit two California tribes, the Pit River Tribe and the Alturas Indian Rancheria, seizing 12,000 plants. The feds alleged Cole memorandum violations including financing from a foreign entrepreneur and fears the marijuana would be distributed outside the reservations in ways that violated the state’s medical marijuana law. And the US attorney in South Dakota a month earlier refused to agree to lift an injunction barring Oglala Sioux tribal member Alex White Plume from growing hemp, which the Oglala Sioux Nation has legalized.

Are the tribes being held to a different standard than states where it is legal? Has there been a policy shift at Justice? Are individual federal prosecutors going off the reservation?

Menominee Tribal Chairman Gary Besaw doesn’t know, but he isn’t happy about it.

“I am deeply disappointed that the Obama administration has made the decision to utilize the full force of the DEA to raid our Tribe,” he said in a statement after the raid. “We offered to take any differences in the interpretation of the farm bill to federal court. Instead, the Obama administration sent agents to destroy our crop while allowing recreational marijuana in Colorado. I just wish the President would explain to tribes why we can’t grow industrial hemp like the states, and even more importantly, why we don’t deserve an opportunity to make our argument to a federal judge rather than having our community raided by the DEA?”

Neither was Eric Steenstra, head of the hemp industry advocacy organization Vote Hemp.

“The DEA action in this case is egregious, excessive and presents an unjust prejudice against Indian Country and the rights of sovereign tribal nations,” he said. “The Menominee Indian Tribe cultivated their industrial hemp in accordance with Federal Law, per the legislation put forth in the Farm Bill. This is a step backward, at a time when great progress has otherwise been made toward legalizing and regulating industrial hemp cultivation.”

In an interview with US News and World Report, tribal law expert Lance Morgan, a member of Nebraska’s Winnebago tribe who has worked with tribal governments pondering marijuana operations, said the Cole memorandum guidelines are not being applied consistently and warned the Menominee raid would be remembered as a historic betrayal.

“How can you allow people to buy marijuana in a retail environment in some states and then raid an industrial hemp operation of a tribe? The only difference is that there is a tribe involved,” he said. “This odd federal policy of encouraging investment and then raiding the new business sets us back a few decades in federal tribal trust and economic policy.”

The raids against tribal pot operations will kill investment in such ventures, Morgan said.

“The new federal policy of ‘sort of’ allowing tribes to get into the marijuana business is especially cruel and unusual because it encourages investment, but after the investment is made the federal government comes and shuts it down and the investors lose all their money.”

Tribal law expert and former head of New York’s Seneca Nation Robert Odawi Porter agreed that there is at least the appearance of a double standard.

“This certainly suggests a real divergence in policy approach for Indian country,” compared to the pot-legal states, which have been allowed to develop enormous marijuana industries, he said. “It increasingly looks like the Justice Department guidelines are not being interpreted in the same way as they were intended.”

It seems like the Justice Department has some explaining and clarifying to do. Can the tribes participate in the new marijuana economy like that states, or not? And does the DEA accept the legal definition and status of hemp? If not, why?

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  28 Responses to “Double Standard? Marijuana Or Hemp? DEA Indian Tribe Raid Raises Questions”

  1.  

    I am personally very tired of the autocratic and illegal methods the DEA is using to contradict and slap the face of the President in his role as the boss executive of the DEA. I am astounded that this President has not firmly and unequivocally fired the offending DEA officials that are acting without ANY authority. If the DEA is allowed to persist in ignoring the mandates of the Justice Department and the President there is only one alternative to dealing with this behavior. President O’Bama is showing his impotence in not dealing harshly with the DEA. These reports of illegal raids indicates to me that my concerns of ‘creeping fascism’ within OUR government is not a fantasy but a reality. If citizens do not persist in getting satisfaction in repremanding the senior executive in charge of the DEA, the President of the US of A, then the fascist activity of a rogue government beaurocracy is frightening.

    •  

      Your sayin the injuns didn’t move a gram across their borders..

      But, I hear ya.

      The Controlled Substances Act is Unconstitutional and therefore these peeps are operating on group consensus instead of correct legal authority. They do it because enough people are complacent to it..You know, its like an OMMP grower taking “donations” and no one doing anything about it. Oregon OMMP law says growers can’t make money and they literally just a about a year ago said, “well, you can make money through a dispensary only.” OMMP is Constitutionally valid. There are no legal improprieties in OMMP dictating no profits or wages to “growers”

      •  

        I understand your “subtle” point but my concern here is in defining the DEA as a rogue federal beaurocracy. Also it concerns me greatly that OUR President and his Justice Department has done nothing to address the rogue nature of the federal agencies that are operating on their own agendas, independent of the rule of law which they are ignoring in their actions.
        I’m not naive to the way things are done while the unjust Marijuana laws are in force. Until the police started confiscating the property and children of people they only suspected of the breaking of their definition of the Marijuana laws many of my colleagues had to turn to the street to obtain their preferred “medication”. I have a severely damaged spine and a nerve disease which causes horrific pain but I will not take the chance right now to go the ‘street’ route to obtain relief because of the corrupt practices of the drug war agencies in illegal confiscation of lives and property.
        I am not new to this game. I’m 63, a child of Woodstock, and know my drugs well. But with the increasing belligerence of the rogue police state tactics of many law enforcement agencies I have decided to wait until more humane drug laws are enacted. In spite of the relief from the despair of chronic acute pain from failed back surgery and polyneuropathy which I can legally benefit from using MMJ I wanted to use this particular post to press my point that the actions of these rogue ‘drug war’ agencies are themselves criminal and if not eliminated are a threat to the safety of ALL Americans including the Native tribes.
        My friends in the native communities have a mandate that allows them to grow hemp and THC infused marijuana. How is it that these rogue agencies can continue to operate illegally while decent folks like us simply want to be free of the scourge of the absurd propaganda and abuse from our existing laws and government agencies that defy their own mandates from their own Chief Law Enforcement Executives. Frankly, it frightens me.
        I do get your ‘subtle message.
        What can be done to stop all this nonsense and free us slaves.
        ( My reference to your ‘subtle’ message was agreeing with your original statement about the probable “mov(ing) a gram across their borders..”)
        Best regards….

    •  

      Agreed. Didn’t the news state around the beginning of summer that Obama told the DEA to lay off ”native Americans”? From what I remember that was the news.

      •  

        That was the beginning of my dislike of PO’BamaTUS. He appears impotent, but just like a Hollywood movie even the PO’BamaTUS must have some skeleton in his closet. (Fitting for All Hallows Day.)
        Otherwise he would have given the boot to the upper management and pardoned Leonard Peltier. President Kennedy made an ultimately unfortunate comment after the failed Bay of Pigs that he was going to scatter the CIA to the wind.
        It seems a precedent has been set. Even the President has to answer to some thing higher up. Very frightening.

      •  

        It was back there the last time the media started some noise about the need for reigning in former (I hope and wish) head of the DEA (female name – forgot) and then former Attorney General Eric Holder was tasked by O’Bama to get the DEA head on board with her bosses. She came out of that meeting with a very weak statement of alignment with the Administration’s policies on a feature issue of marijuana or hemp policy. I think it was when the DEA confiscated a state’s entire order of thousands of hemp (non-thc) seeds in spite of the state in question having passed it’s own legislation authorizing its farmers to start growing hemp. So it was the re-surfacing of the huge issue of states rights over federal control of hemp (and ultimately legalization and MMJ issues) farming.
        My memory is a sieve and I could’ve googled it but I didn’t. Sorry.
        My recollection was that for a federal employee of her high office to act independently this female DEA head was spitting in the face of her bosses and the WILL of the PEOPLE. Certain federal agencies have shown a growing intransigence in following the President’s unofficial declaration to alter the path of the federal government in its continuing fascistic control of federal policy on states rights in general and hemp and legalization policy specifically. I was and am still very concerned about how these rogue federal beaurocracies are continuing their involvment in the drug war fiasco. It seems we have the emergence within OUR government of a very dangerous precedent being set in which the more ignorant, ruthless and greedy powers who dictate an agenda contradictory to the intent and will of the PEOPLE will not obey their elected bosses. These agencies are NOT run by elected officials and seem to have a power over OUR President. This is frightening. Come on O’Bama. Get tough with them. And FREE LEONARD PELTIER.
        I yield the rest if my time back to the floor. La-de-da…

    •  

      They should have appointed Kim Davis as head of the DEA. She too is an expert on making her own laws and defying the legal process.

  2.  

    They can’t move product off the “reservation”

    The Feds actually have authority over all border crossing commerce.

    If the “reservation” doesn’t move product across boarders then the Feds have no case.

    The “tribes” are welcome to utilize ground not on their “reservations” so they can sell it off the “reservation”

    I suspect the “tribes” competitive advantage is their land ownership. Without that, they probably aren’t very competitive. Thats why they don’t open grows on ground they don’t own. Its also the way most pot growers are as they rely on special cuts and lack of access to space and equipment to keep their customers coming back. In other words, if customers had access to the same cuts and could access the same equipment and space, the commercial growers would loose a lot of their revenue. Its not like they grow GSC instead of GG#4 because they are better at it- they don’t. They do not rely on their skills to produce a superior product that an average person can’t replicate consistently.

  3.  

    They likely moved product across their boarders where the Feds have correct legal jurisdiction…

    But in any case, you don’t see them growing off “reservation” ground because they can only compete based on ownership access. If they are actually highly skilled, they could access ground in the regions they want to market to and they could keep that money in those regions to avoid Federal intervention.

    But they don’t want to actually compete on skills. They want to grow on rent free ground and sell in regions where the ownership is taxed in addition to most people being forced to pay those taxed owners a “rent” for permission to work on the ground.

    BTW…these guys are bad at deleting comments.

    I’m gonna start backing my comments up in Word to repost these comments that get deleted. As a grower building a business with profits from the business with little start up “investment,” I’ve got time to make sure I’m not censored. I don’t have to maintain 10000sqft for some lazy fat cat with money to throw around.

  4.  

    Womp Womp….Waaaaa

    :(

    Still got in Word

  5.  

    There is no explanation for this travesty.

  6.  

    A federal judge should slap this down and hold the DEA agents responsible in contempt.

    •  

      Yes, and sue them for a gazillion dollars and fire the a–holes responsible so they can never work for the government again.

  7.  

    The DEA are officially unmitigated asshats.

  8.  

    Sober up, DEA, you’re getting more tiresome, and childish, than ever.

  9.  

    Call the White House comment line at 202-456-1111 and demand President Obama stop DEA raids on sovereign tribal land! If you can’t stand talking on the phone, you can send a comment through their website.

  10.  

    It is the government. Who says they have to follow law or policy? So F* you that’s why. (FYTW).

  11.  

    Any man who would even join the DEA is a bully who joined so he could point guns at people and maybe even get to shoot someone if he’s lucky enough to be at the right place at the right time to say he feared for his safety. We met a man in our Sunday School class who wanted to join the police. He said “it would be a great rush to be able to kick in doors and make people get on the floor while waving my gun around. Stop or I’ll shoot!”.
    I am not exaggerating, either. My wife and I were shocked that such a person would also feel like coming to church. We all sighed relief and even laughed when we heard he failed admission to the police academy. I would love to take a gander at his psyche review…LOL. It was probably similar to that scene in Arlo’s song “Alice’s Restaurant” – I want to kill, kill, chew burnt babies with veins in my teeth.

    •  

      i WANT TO KILL! I want to see dead burnt bodies and taste bones and veins in my teeth! I WANT TO KILL! i screamed that a couple of times while walking down the barrack’s hallway. One time while pushing my buddy down the hallway in a shopping cart. Of course I hadn’t been in an altered state of mind at the time. Never. And I couldn’t understand why no one left their room to challenge me. Thanks for bringing that memory back to me. LOL. ;)

    •  

      I’m a bit shocked that such a person as you would also feel like coming to church. To publicly do what you just did is not the act of a good christian.

  12.  

    I guess no other drug crimes are being committed and of course you can’t lay off any DEA agents even if they’re POS.

  13.  

    America has stolen the land, the water, the mineral rights, the oil rights and the culture from native Americans. If the indians wish to grow ANYTHING on their “reservations”, the federal government should leave them alone. What the hell are we doin’?

  14.  

    All countries take back the weeds after fully grown for their own personal use.

  15.  

    BEWARE OF CREEPING FASCISM. IT CAN HAPPEN HERE.

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