“We were defending our rights. We are sick and tired of being held back. We’re being held back at every opportunity to make money.
Max Nesterak, Minnesota Reformer
Around three months ago, Mahnomen County Sheriff’s Deputies and White Earth Tribal Police raided Todd Thompson’s tobacco shop and seized around seven pounds cannabis, as well as $3,000 in cash and his cell phone.
The raid on August 2, which took place the day after marijuana for recreational use became legal in the entire state, was the first major enforcement measure under the new law.
No charges have been brought against him, and the state may have no authority to prosecute any tribal members for marijuana crimes committed on reservations.
Thompson, who is a White Earth Nation member, did not have a state license to sell cannabis, nor the consent of his tribal council. The tribal council had approved a few days prior to selling marijuana grown in the tribe’s facility for adult use and allowing the sale of cannabis .
Thompson, for his part believes he doesn’t need the permission of either the state or tribal council in order to sell marijuana on a reservation. This is because he’s not bound by the Minnesota Chippewa Tribe constitution or U.S. Treaties with the Ojibwe. Thompson and four tribal members, he said, decided to openly sell cannabis from Asema Tobacco and Pipe in Mahnomen. He has run the store for five years.
Thompson stated in an interview that “we were pushing for our rights.” “We are sick and tired of being held back. “We’re being held back from every economic opportunity.”
The marijuana was advertised with photos and videos on Facebook showing large jars filled with green marijuana buds, and they invited people in.
The following day, Mahnomen County Sheriff’s Deputies and tribal police came to Thompson’s store with a warrant. A White Earth narcotics agent stated in the search warrant filed in Minnesota district courts that they saw a Facebook Live video promoting Thompson’s sale and then an undercover agent purchased cannabis at the store.
Thompson claimed that police handcuffed and detained him, as well as workers in his store for over an hour during a search of the premises.
He claimed they went to his home, where they “desecrated sacred items”–he found the ashes of his sage-bowl on his white sheets and his eagle’s feather on the ground.
Thompson stated, “They are just rotten and dirty bastards.”
Thompson believes the raid was a heavy-handed revenge by a tribal council who were angry at them for breaking their monopoly of legal marijuana sales. White Earth and the state have not yet established a licensing program for individuals who wish to legally sell marijuana. White Earth opened its tribally-run dispensary. It is only the second dispensary legal in the state, along with Red Lake Nation.
Thompson opened his store a day before White Earth, about a quarter-mile from Thompson’s. Thompson also claimed that his prices were half of those at the tribal dispensary, and he did not charge an extra 10 percent tax.
They just robbed me with strong-arm tactics, that’s what they did. Thompson stated in an interview that they strong-armed robbed him. As soon as they had my shit they removed us from cuffs, and left… in a flash.
White Earth Nation Chairman Michael Fairbanks stated that the council did not order the raid of Thompson’s business. Tribal police assisted Mahnomen County Law enforcement and the Council was informed afterward.
In an email, Mahnomen County attorney Jason Hastings stated that the case was under investigation. He is “optimistic” about the outcome of the investigation within the next two weeks.
Thompson taunts law enforcement to assert tribal sovereignty. He was cited in 2015 for illegally gillnetting without a permit on Gull Lake. Thompson fought against the charges. They were eventually dropped years later after a district judge ruled Thompson had fishing rights at Gull Lake because he was a White Earth Nation citizen.
Thompson’s prosecution raises similar legal issues as the 2015 fishing case. His tribal identity and his store’s location in reservation land makes it difficult to determine whether he is guilty or not.
Minnesota can prosecute tribal members in certain reservations, including White Earth Reservations for criminal violations of state law. This is under Public Law 280. In Thompson’s case, the key will be to determine if selling cannabis without a permit or possessing large amounts of it is a criminal offense or civil.
Answer may be found in a landmark U.S. Supreme Court decision from 1987 called California v. Cabazon Band of Mission Indians. This case ushered in the modern Indian gaming industry by creating a distinction in criminal laws between those that are prohibitory and those that are regulatory.
The Supreme Court ruled in that case that “if a state’s intent is to generally prohibit certain conduct it will fall under [Public Law] 28…but if it allows the conduct to be regulated, then it should be classified as civil/regulatory.”
Minnesota has, it appears, moved to allow the “conduct at issue,” that is, the sale of marijuana, starting August 1.
In some cases, however, the state can still bring criminal charges if the conduct in question violated “public policy” of the state.
In 1997, Minnesota Supreme Court heard a case in which a member of the Leech Lake Band of Ojibwe was charged with underage drinking of alcohol. A district judge dismissed the case, claiming that the state did not have jurisdiction. The state Supreme Court, however, disagreed and ruled that the law prohibits alcohol consumption by minors because of public policy reasons.
Thompson and his partners, Thompson said, only sold to adults.
It would be political risky to bring Thompson to trial, even if the state authorities found they had the authority. Minnesota’s new cannabis laws are meant to stop the state’s punitive attitude towards marijuana crimes.
It is reminiscent of the old regime to charge a Native American for selling marijuana without a permit.
State Democrats, backed by public polls that show support for legalization of marijuana, claimed the new laws would promote racial equity through provisions to expunge records of marijuana convictions. They also said they would give people in communities that have been disproportionately affected by the War on Drugs an advantage when it comes to opening their own cannabis businesses.
Dave Hart, the commander of the Paul Bunyan Task Force, which helped to carry out the raid on the marijuana farm, stressed that the law enforcement agencies were not focused on marijuana crimes. This is especially true as the opioid crisis rages.
Hart stated that marijuana is not something they target. “We’re already busy with heroin, methamphetamine, and fentanyl,” Hart added. In this case, there was a blatant disregard for the law.
State Democrats also claimed that legalization would improve safety by bringing regulation and oversight from the state to the industry. Thompson declined to disclose where his product was sourced. Allowing unlicensed products to be sold without consequences, with unknown potency and origin would render state and tribal regulations ineffective.
As new businesses try to get a piece of the Green Rush in Minnesota, state regulators are already struggling to crack down on violations of low-dose THC edibles regulations.
Thompson’s situation could be further complicated by the fact that cannabis is still illegal under federal law, even though it is unlikely to be a top priority for federal authorities.
The U.S. Department of Justice recommends that federal prosecutors focus their marijuana enforcement efforts on cases involving the sale of marijuana to minors, revenue going to criminal enterprises, firearms being used and other serious factors.
The Medicinal Cannabis Control Commission of the White Earth tribe is the only authority that can enforce the adult-use cannabis code. This prohibits the cultivation and sales of cannabis unless the commission has granted a license. According to the tribe’s code, the commission can destroy illegal cannabis as well as levy fines on those who violate it.
A further factor creates confusion: Although the tribal council approved the code for adult-use cannabis on July 28, the ratification and signing of the code didn’t occur until August 3, a day after the raid. It’s therefore unclear if the White Earth regulatory system was in place when the raid took place.
Fairbanks, tribal chairman, admitted that he was not fully informed about the jurisdictional issues involved, but said he believed the county would be the one to investigate Thompson and bring any charges.
The White Earth Medicinal Cannabis Control Commission did not return calls or emails asking for clarification on the date the codes came into effect and the possible penalties.
Thompson’s legal challenges to the state law and tribal code are more serious. He shares the same view as many Native Americans that Public Law 280 does not have any legitimacy.
Thompson also believes that the White Earth tribe council has overstepped their authority in establishing cannabis sale rules without consulting tribal members. White Earth pursued medicinal cannabis via a 2020 referendum, but Thompson believes that all six bands of Minnesota Chippewa Tribe should have voted.
He believes that the Minnesota Chippewa Tribe Constitution also grants him the rights to sell marijuana because it gives “equal opportunity to participate in economic resources and Tribe activities.”
Angelique EagleWoman, a law professor, is sceptical of his interpretation.
EagleWoman is the director of Mitchell Hamline’s Native American Law and Sovereignty Institute. She said that the Minnesota Chippewa Tribe Constitution does not give tribal members carte blanche to engage 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.
Thompson’s cannabis, money, cell phone, or other items seized by the county are not automatically returned if Thompson isn’t prosecuted. Thompson would have to sue to get his property.
Thompson has said that he is weighing his legal options.
Thompson stated, “This is not over.” Thompson said, “This is by no means over.”
The Minnesota Reformer published this story first.
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The post Raid on Unlicensed Marijuana Businesses On Tribal Land in Minnesota Raises Complex Political and Legal Questions appeared initially on Marijuana Moment.
