Tribe Complains About Hemp Crop Destruction

GREEN BAY, Wis. (CN) - U.S. authorities intruded on sovereign tribal land to destroy an industrial hemp crop cultivated for academic research, the Menominee Indian Tribe of Wisconsin claims in a federal complaint.

The Menominee note that the plants in question contain too little THC to produce the psychotropic effects of marijuana, but that the Drug Enforcement Agency and the Department of Justice "seized and destroyed" the crop on Oct. 23, 2015, rather than let the tribal college to study it.

"These actions by the DEA and DOJ highlight the different positions taken by the Tribe and the federal agencies regarding the tribe's right to cultivate industrial hemp under the Farm Bill," the complaint filed on Nov. 18 states.

A search warrant provided by the U.S. Attorney's office indicates the Justice Department had probable cause to believe the farmer intended to distribute drugs, but the tribe says there was no indication that the hemp destroyed was illegal.

"The tribe cooperated with the DEA and DOJ to secure testing of the industrial hemp to ensure that THC levels did not exceed 0.3%, including agreeing to destroy any industrial hemp that tested above this limit as such hemp would be in violation of the Tribal law," the complaint states.

DEA agent Steven Curran noted in affidavit supporting the search warrant that some samples showed THC levels above the legal limit, which might be attributable to environmental factors.

Brendan Johnson, an attorney for the tribe with Robins Kaplan in Minneapolis, said in a phone interview that the tribe was aware of this, and offered to destroy those plants in cooperation with the federal government, but received no response.

Curran's affidavit says Brian Goldstein of Colorado-based 3C Comprehensive Cannabis Consulting supervised the growing operation.

Since Goldstein is not Native American, however, his supervision violated U.S. and state law by running the operation for a tribe that had "no jurisdiction over his actions," the affidavit states.

But Johnson said there is no law against hiring an out-of-state consultant, and that the government lacks a factual basis to imply that the plants were being grown to sell for recreational or medical use.

"We're still talking about THC levels that wouldn't produce anything other than a bad cough," Johnson said. "It's not something that anybody would want to smoke."

The tribe has requested a three-part declaration: that the tribe is a "state" for purposes of a federal law allowing state control over cultivation of industrial hemp, that the College of Menominee Nation is a higher education institution under the same federal law, and that Wisconsin's cannabis laws do not apply upon Menominee land.

In support of their first point, the tribe argues that farmers in Kentucky and Colorado are allowed to grow industrial hemp for academic research.

Further, they claim, the reservation is not within Wisconsin's legal jurisdiction as the result of a 1976 executive proclamation retroceding jurisdiction to the tribe.

This enabled the tribe to, in early 2015, pass laws legalizing and regulating industrial hemp growth, all of which it sent to the U.S. Attorney's office in compliance with federal law, the complaint states. Johnson added that the tribe invited law enforcement to the hemp farm to review the process and test the crop.

Though these acts of cooperation apparently did not assuage the U.S. government's fears of illegal activity, the tribe says it tried to achieve just that through multiple channels.

"The tribe has worked tirelessly to find a solution to this disagreement, including offering to destroy itself certain strains of the industrial hemp crop that both sides had identified as problematic and offering to file a declaratory judgment action in United States District Court for the Eastern District of Wisconsin to allow a federal judge to decide the disputed issues," Tribal Chair Gary Besaw said in a statement released on the day of the raid. "These offers by the tribe were rejected in favor of the aggressive unilateral action we saw today."

In a statement on the lawsuit, Besaw indicated that the tribe's bid for declaratory judgment is only the first step in remedying the damages their crop suffered.

"It is important, however, to first make clear to the federal government that Tribes must be treated fairly and equally under Justice Department policies and federal law," Besaw said in the statement. "I believe that fundamental fairness, as well as the rule of law, dictate that Tribes should have the same research and economic opportunities that the Department of Justice now claims are reserved for states only."

Leo Hawkins, a spokesman for the DEA's Chicago division, responded via email that "as a matter of policy DEA does not comment on an active litigation."

Dean Puschnig said the Justice Department had no comment on the pending litigation.

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