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Anti-Hemp Injunction|Goes Up in Smoke

PINE RIDGE, S.D. (CN) - A federal judge Monday vacated a 12-year-old injunction forbidding a farmer on the Pine Ridge Reservation from growing industrial hemp, but stopped short of ruling whether Alex White Plume or anyone else can do it legally there.

"The court finds there has been a significant shift in the legal landscape since 2004 which makes 'continued enforcement' of the permanent injunction 'detrimental to the public interest,'" U.S. District Judge Jeffrey Viken wrote. The permanent injunction had barred brothers Alexander and Percy White Plume from growing industrial hemp on the Pine Ridge Reservation.

The federal government went after the White Plumes in 2002, claiming they had violated the Controlled Substances Act since 2000, by growing marijuana in "three successive crop years."

The Controlled Substances Act, however, did not differentiate between the inebriating form of marijuana and tetrahydrocannabinol-free hemp. Hemp has been used to make rope and fabric for thousands of years.

The injunction, issued in 2004, instructed Alex White Plume to "obtain a valid DEA [Drug Enforcement Administration] registration" to grow hemp. The Eighth Circuit Court of Appeals upheld the injunction in 2006, in United States v. White Plume, 447 F.3d 1067 (8th Cir. 2006).

The following year, PBS broadcast a documentary, "Standing Silent Nation," chronicling White Plume's struggle. The White Plumes are Oglala Sioux.

On Monday, Judge Viken identified several factors that have altered the legal landscape since the case began.

In 2013 and 2014, the Office of the U.S. Attorney General issued memoranda to all U.S. attorneys regarding marijuana enforcement and related issues in Indian Country. The memos instructed the Department of Justice to focus on eight key areas of enforcement. These included keeping marijuana out of the hands of minors, not using it as a front to traffic in other drugs and not transporting it into states where marijuana remained illegal.

Then the Agricultural Act of 2014 made a distinction between cultivation of marijuana and industrial hemp, allowing hemp to be grown in states that had legalized it.

Twenty-eight states today allow cultivation of industrial hemp in some form, according to the National Conference of State Legislatures.

Although South Dakota has not, Alex White Plume has tribal support for his hemp operation.

In 2015, Oglala Sioux President John Yellow Bird Steele wrote to the U.S. Attorney for the District of South Dakota demanding that Native American tribes be given the same rights states have to issue licenses for cultivation of hemp.

Viken cited an Oglala Sioux Tribe's amicus brief stating that the U.S. attorney never responded to its letter.

South Dakota is one of many battlegrounds on legalization of marijuana, on and off its reservations. In January this year the state House approved a bill authorizing production and sale of industrial hemp in the state. House Bill 1054, however, was killed by the state Senate Agricultural and Natural Resources Committee.

The Santee Sioux Tribe, in Flandreau, legalized marijuana and tried to get a marijuana resort off the ground in late 2015, but destroyed its crop in response to threats of a federal crackdown.

In his 17-page ruling, Viken says the lifting of the injunction does not grant Alex White Plume "permission" to resume his hemp operation, or violate the Controlled Substances Act, nor does it invite the parties to "re-litigate the initial soundness of the permanent injunction."

"IT IS FURTHER ORDERED that this order does not resolve whether cultivation of industrial hemp on the Pine Ridge Indian Reservation is legal.

"IT IS FURTHER ORDERED that this order does not resolve whether the Agricultural Act of 2014 authorizes cultivation of industrial hemp on the Pine Ridge Indian Reservation," Viken concluded.

Bruce Ellison, White Plume's lead attorney, could not be reached by phone for comment Tuesday night, nor could the U.S. Attorney's Office for South Dakota.

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