In December, 2014, the Department of Justice stated it would not prosecute federal laws regulating the growing or selling of marijuana on tribal lands, even in states where cannabis is illegal. Monty Wilkinson, Director for the Executive Office for U.S. Attorneys, authored the statement, and it seemed to give Tribes the opportunity to become cannabis players because of their unique sovereign status. Though the Wilkinson Statement did not constitute a change of laws or a repeal of the federal Controlled Substances Act, most of what it means is that the eight enforcement priorities outlined in Cole Memo, in addition to consultation with tribal leaders, would guide U.S. Attorneys’ enforcement of federal marijuana laws on tribal lands.
However, as noted in Is Tribal Cannabis Still Possible, the Feds, haven’t really taken the Wilkinson Statement to heart when it comes to tribes that (1) have tried to engage in some aspect of the cannabis industry without entering into a compact with the states; and that (2) are not located in states with some form of robustly regulated marijuana laws.
Cue the Menominee raid of October 2015 and the Tribe’s subsequent lawsuit against the DOJ and DEA.
In late October 2015, the federal government raided a grow belonging to the Menominee Tribe in Wisconsin and seized some 30,000 cannabis plants. This grow was allegedly made up of only industrial hemp and not marijuana plants capable of producing active THC. Notably, the Tribe legalized hemp cultivation but the State of Wisconsin has no such law. Menominee Tribal leaders maintained that “the plants were intended for lawful research into growing industrial hemp, which is processed and utilized for fiber, food and oil and is distinguishable from marijuana by its lower levels of the high-inducing compound tetrahydrocannabinol (THC).” Though federal law prohibits cultivating hemp without a DEA permit, the Menominee were cultivating their hemp in cooperation with the College of the Menominee Nation, allegedly in line with the federal Farm Bill of 2014.
At the time, the Menominee Tribe was also engaged in an active and reciprocal dialogue with the Bureau of Indian Affairs (“BIA”), the local cops, and an assistant U.S. attorney. These law enforcement authorities were aware of the Menominee’s hemp-growing plans and presumably had not taken issue with those plans until a BIA employee and local police inspected the operation and took plant samples. The affidavit justifying this raid states that, in addition to witnessing “individuals appearing to be non-native” and a Colorado-based consultant aiding the Tribe, the plant samples tested positive for the “presumptive indication” of marijuana.
After this raid, the Tribe filed suit in federal court against both the DOJ and DEA, claiming that it had a right to grow hemp on its tribal lands in accordance with the federal Farm Bill of 2014 in partnership with the College of the Menominee Nation for “agricultural or academic research purposes.” Essentially, the Tribe wanted a federal judge to declare that:
- It had acted lawfully and should be treated like a state under the federal Farm Bill
- The fact that Wisconsin doesn’t permit hemp cultivation should be viewed as irrelevant to the Tribe since the Tribe had legalized hemp under its own ordinance and on its own lands.
- The College of the Menominee Nation is an “institution of higher education,” as defined by the federal Farm Bill.
The federal government filed a motion to dismiss the Tribe’s claims, arguing that “the term ‘state’ only applies to Wisconsin, not tribes,” and that the Tribe’s hemp crop was illegal even under the federal Farm Bill because Wisconsin State law does not permit growing hemp for any purpose.
U.S. District Judge William Griesbach ruled in favor of the Feds on their motion to dismiss and In his 19-page decision he wrote that the Tribe is not considered a “state” under the federal Farm Bill:
Congress has chosen to condition the hemp exception to the Controlled Substances Act on the laws of the States in which the proposed growing operations would occur. Wisconsin’s laws do not allow the growing and cultivation of hemp. It thus follows that the exception does not apply [to the Tribe] . . . Wisconsin law does not allow the growing of hemp. While Wisconsin law is not enforceable on the Menominee Reservation, that does not change the fact that the growing or cultivating of industrial hemp is not allowed under the laws of the State of Wisconsin. Because the Tribe is located in the State of Wisconsin, the hemp exception to the Controlled Substances Act does not apply to the Tribe.
The Court did not rule on whether the College of the Menominee Nation is an institution of higher learning.
Though the Tribe’s arguments were novel in the context of the federal Farm Bill, the result in the case further complicates whether Tribes can rely on the 2014 Wilkinson Statement to pursue their cannabis business plans and development.