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MARIJUANA MOMENT
RAID ON UNLICENSED MARIJUANA BUSINESS ON TRIBAL LAND IN MINNESOTA RAISES COMPLEX
LEGAL AND POLITICAL QUESTIONS
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He’s ‘Not A Huge Believer’ In The Idea
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POLITICS
RAID ON UNLICENSED MARIJUANA BUSINESS ON TRIBAL LAND IN MINNESOTA RAISES COMPLEX
LEGAL AND POLITICAL QUESTIONS
Published
21 hours ago
on
November 20, 2023
By
Marijuana Moment
“We were pushing our rights. We’re just sick of being held down. And every
economic opportunity, we’re held back from.”
By Max Nesterak, Minnesota Reformer
About three months ago, Mahnomen County sheriff’s deputies and White Earth
tribal police raided Todd Thompson’s tobacco shop, seizing around seven pounds
of cannabis, along with $3,000 in cash, his cell phone and surveillance system.
The August 2 raid happened the day after recreational marijuana became legal
across the state and was the first major enforcement action under the new law.
But no charges have been filed in the case—and the state may not have the
authority to prosecute him or any other tribal member for marijuana crimes on
reservations.
Thompson, a member of the White Earth Nation, didn’t have a state permit to sell
cannabis nor did he have the consent of the tribal council, which voted days
earlier to allow adult-use cannabis and sell marijuana cultivated in its
tribal-run facility.
For his part, Thompson doesn’t believe he needs the permission of the state or
the tribal council to sell marijuana on the reservation under the Minnesota
Chippewa Tribe’s constitution or U.S. treaties with the Ojibwe. That’s why
Thompson said he and four other tribal members decided to sell cannabis out in
the open from Asema Tobacco and Pipe, the store he’s run for five years in
Mahnomen.
“We were pushing our rights,” Thompson said in an interview. “We’re just sick of
being held down. And every economic opportunity, we’re held back from.”
They made it hard for law enforcement to ignore, advertising marijuana for sale
with Facebook photos and videos showing large jars of green marijuana buds and
invited people to come in.
The next day, tribal police and Mahnomen County sheriff’s deputies came to
Thompson’s store with a search warrant. In the search warrant application filed
in Minnesota district court, a White Earth narcotics investigator said they had
seen a Facebook Live video of Thompson promoting the sale, and an undercover
agent then purchased cannabis there.
Thompson said police handcuffed him and workers at his store and held them for
more than an hour while they searched the premises.
He said they also went to his house, where they broke into his safe and
“desecrated” sacred items—he found his eagle feather on the floor and the ashes
from his sage bowl dumped onto his white sheets.
“They’re just some rotten, dirty bastards,” Thompson said.
To Thompson, the raid was heavy-handed retribution by a spiteful tribal council
for edging in on their effective monopoly on legal marijuana sales. Neither the
state nor White Earth has set up a licensing system yet for individuals to
legally sell cannabis. White Earth has opened a tribal-run dispensary, only the
second legal dispensary in the state along with the Red Lake Nation’s.
Thompson actually beat White Earth to market—the tribe opened its dispensary the
day after the raid about a half-mile away from Thompson’s store. He also said
his prices were about half those in the tribal dispensary and he didn’t charge
an additional 10 percent tax.
“They just strong-arm robbed me is what they did. They strong-arm robbed me,”
Thompson said in an interview. “As soon as they took my shit, they took us out
of cuffs and they left … just like that.”
White Earth Nation Chairman Michael Fairbanks said the council didn’t order the
raid on Thompson’s business—tribal police assisted Mahnomen County law
enforcement and the council was informed after the raid.
Mahnomen County Attorney Jason Hastings said in an email the case is under
investigation and he is “optimistic that the matter should be addressed within
the next couple of weeks.”
This isn’t the first time Thompson has publicly taunted law enforcement in order
to assert tribal sovereignty. In 2015, he was cited for illegally gillnetting on
Gull Lake without a permit. Thompson fought the charges, which were ultimately
dropped—years later—after a district court judge ruled that Thompson retained
fishing rights on Gull Lake as a citizen of the White Earth Nation.
As in the 2015 fishing case, prosecuting Thompson raises complex legal questions
given his tribal identity and store’s location on reservation land.
Minnesota has the power to prosecute criminal—but not civil—violations of state
law by tribal members on certain reservations including White Earth’s under
what’s called Public Law 280. The key in Thompson’s case will be determining if
possessing large quantities of cannabis or selling it without a license is
criminal or civil.
The answer may lie in a landmark 1987 U.S. Supreme Court case called California
v. Cabazon Band of Mission Indians, which ushered in modern Indian gaming by
creating a distinction between criminal laws that are prohibitory versus
regulatory.
In that case, the Supreme Court decided that “if the intent of a state law is
generally to prohibit certain conduct, it falls within [Public Law] 280…but if
the state law generally permits the conduct at issue, subject to regulation, it
must be classified as civil/regulatory.”
And by the looks of it, Minnesota moved to allow “the conduct at issue,” i.e.,
marijuana sales, as of August 1.
Yet, in some cases, the state may still pursue criminal prosecutions if the
conduct violated the state’s “public policy.”
In 1997, the Minnesota Supreme Court took up a case involving prosecution of a
Leech Lake Band of Ojibwe member for underage alcohol consumption. A district
court judge dismissed the charge, saying the state didn’t have jurisdiction. But
the state Supreme Court disagreed, ruling that state law strictly prohibits
underage alcohol consumption because there is public policy interest in doing
so.
In Thompson’s case, he said he and his partners only sold to other adults.
Even if state authorities find they have the power to prosecute Thompson, doing
so would be politically fraught. Minnesota’s new laws on cannabis are intended
to end the state’s punitive approach to marijuana crimes.
Charging a Native American man for selling weed without a license smacks of the
old regime.
State Democrats, buttressed by public polls showing support for legalization,
said the new laws would advance racial justice through provisions to expunge
people’s records of marijuana convictions and provide people from communities
disproportionately harmed by the War on Drugs with a leg up in opening cannabis
businesses of their own.
Dave Hart, commander of the Paul Bunyan Task Force that helped carry out the
raid, emphasized that law enforcement agencies aren’t focused on marijuana
crimes, especially as the opioid epidemic rages.
“Marijuana isn’t something we particularly target…we’re busy enough with heroin,
fentanyl, methamphetamine,” Hart said. “In this particular case, it was a pretty
blatant disrespect for the law.”
State Democrats also argued legalization would increase safety by bringing state
regulation and oversight to the industry. Allowing people to sell unlicensed
products of unknown potency and origin—Thompson declined to say where he sourced
his product—without consequences would make state and tribal regulations
meaningless, effectively giving as little oversight to a mind-altering drug as
the government does to vitamins.
Already state regulators have struggled to clamp down on rampant violations of
regulations on low-dose THC edibles as new businesses look to stake their claim
in the Green Rush coming to Minnesota.
The fact that cannabis remains illegal under federal law could further
complicate Thompson’s case, though the matter is not likely a priority for
federal law enforcement.
The U.S. Department of Justice advises federal prosecutors to focus marijuana
enforcement on cases that involve sale to minors; revenue that goes to criminal
enterprises; the use of firearms and where other serious factors are at play.
That leaves White Earth authorities to enforce adult-use cannabis codes, which
prohibit the cultivation and sale of cannabis unless licensed by the tribe’s
Medicinal Cannabis Control Commision. The tribe’s code says the commission has
the power to destroy illegal cannabis and levy fines against people who violate
the code.
Another factor adds further confusion: While the tribal council voted to approve
the adult-use cannabis code on July 28, it wasn’t ratified and signed until
August 3, the day after the raid, meaning it’s not clear if the White Earth
regulatory regime was in effect when the raid occurred.
Fairbanks, the tribal chairman, said he wasn’t fully briefed on the
jurisdictional issues at play, but he said he thought the county would lead on
investigating Thompson and bringing any charges.
Calls and an email to the head of the White Earth Medicinal Cannabis Control
Commission seeking clarity on when the codes took effect and what penalties
there may be were not returned.
Thompson’s own legal challenge to state law and the tribal code are headier.
Like many Native people, he doesn’t believe Public Law 280 is legitimate.
He also thinks the White Earth tribal council overstepped its authority by
establishing rules on cannabis sales without putting it before tribal members
for a vote. White Earth did pursue medicinal cannabis through a referendum in
2020, but Thompson thinks that should have been voted on by all six member bands
of the Minnesota Chippewa Tribe, not just White Earth.
He also believes the Minnesota Chippewa Tribe constitution grants him the right
to sell cannabis because it grants “equal opportunities to participate in the
economic resources and activities of the Tribe.”
Law professor Angelique EagleWoman is skeptical of his legal interpretation,
however.
EagleWoman, who directs Mitchell Hamline’s Native American Law and Sovereignty
Institute, said the Minnesota Chippewa Tribe constitution doesn’t give tribal
members carte blanche in regulated industries.
“The common understanding of the constitutional provision in many different
governmental constitutions…refers to the idea that if an economic activity is
licensed and regulated by the government, then a citizen who meets all of the
requirements will be able to participate equally in the economic resource,”
EagleWoman wrote in an email.
Even if the county doesn’t ultimately prosecute Thompson, it doesn’t have to
automatically return his cannabis, cash, cell phone or other seized items.
Thompson would likely have to file a lawsuit to get his property back.
Thompson said he is considering his legal options.
“This has not ended,” Thompson said. “Believe me, this isn’t by any means over
with.”
This story was first published by the Minnesota Reformer.
> Schumer Says Marijuana Banking Bill Needs More GOP Support, But Senate Is
> ‘Getting Close’ To Floor Vote
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