Pubdate: May, 2000
Source: Indian Country Today
http://www.indiancountry.com/articles/lakota-2000-5-24-4.shtml
Author: David Rooks, Indian Country Today Staff
Title: Lakota hemp growers headed for legal showdown

MANDERSON, S.D. - On a sunny early May day described as "perfect for planting," Alex White Plume, with 20 friends and relatives, planted an acre and a half field along the banks of Wounded Knee Creek. Helping Alex get the crop in was his grandson, Tyson, 5.

The crop is industrial hemp and planting it could land Tyson's grandpa in jail.

White Plume formally invited the man who would be charged with putting him in jail to the planting. After his invitation to U.S. Attorney Ted McBride, White Plume invited BIA Superintendent Bob Ecoffey, too. "I have nothing to hide," the Lakota man said. "I'm just looking for a good way to support my family."

Neither McBride or Ecoffey made it to the planting.

Laws that govern his tribe give,White Plume every right to grow the stuff. Oglala Sioux Tribal (OST) Ordinance 98-27, passed by the Tribal Council in July of 1998, reads, in part: THEREFORE BE IT ORDAINED that the Oglala Sioux Tribal Council does hereby expressly reserve and retain jurisdiction to enact legislation relating to industrial hemp agriculture..."

White Plume says the ordinance is clear.

A key provision of 98-27 makes a chemical and testable distinction between industrial hemp and the marijuana used for getting high. While the tribe's penal code ordains fines and jail time for use of marijuana as a narcotic, it excludes industrial hemp.

Its definition: "Industrial Hemp" - All parts and varieties of the plant Cannabis sativa, both indigenous and imported, that are, or have historically been, cultivated and harvested for fiber and seed purposes and contain tetrahydrocannabinol (THC) concentration of one percent or less by weight."

But McBride says the federal Drug Enforcement Administration (DEA) "makes no such fine distinction." He referred to the Controlled Substances Act, 21 USC.

"As far as the U.S. attorney's office and the Drug Enforcement Administration are concerned the answer is no. There is no support for that position in federal law," McBride said.

A memorandum prepared by Mary Kate Whalen of the DEA's Office of Chief Counsel for then-U.S Attorney Karen Schreier June 19, 1998, backs McBride's claim: "... the Controlled Substances Act is applicable to activities conducted on Native American tribal land. Under the Controlled Substances Act, any individual who wishes the (sic) cultivate the cannabis sativa plant for use in the manufacture of paper or cloth ("hemp') must obtain appropriate registration with the Drug Enforcement Administration (DEA). Therefore, any individual who seeks to grow hemp on Native American tribal land must obtain appropriate registration from DEA."

The memorandum further states that, "The definition of marihuana does not provide for exemptions for low or no THC plants."

Lawyer Thomas Ballanco, who drafted the tribe's 2-year-old ordinance, thinks DEA may have more than a drug-control interest in destroying plants. In a May 9 presentation before the council, Ballanco said, "The reason the DEA is so eager to destroy marijuana plants is because Congress gives them $500 million a year to do it. Yet the DEA's own statistics show that over 99 percent of the plants they destroy are wild-growing or industrial hemp. These are plants the DEA itself admits are useless as a drug-trafficking product."
Ballanco charged that the marijuana-burning claims of DEA are a carefully manufactured fiction designed to promote the perception that DEA is making great headway in its war on drugs.

"Basically, the figures are worthless - and worse, DEA knows it," the lawyer said.

Ballanco has been working with tribes and states to promote production of industrial hemp for seven years. At the May 9 tribal council meeting, the California attorney presented a memorandum to the tribal council titled: Duties And Responsibilities Under The law For Tribal Members Cultivating Industrial Hemp. It details how tribal members are to comply with OST Ordinance 98-27 and was adopted by the Tribal Council by of vote of 12 to 1.

Left to grow, White Plume's seeds would turn into fibrous stalks as much as 12 to 14 feet high. The question is will the plants be left alone?

McBride says definitely not. If tribal members raising hemp do not secure a permit through the Drug Enforcement Agency, McBride said they will be subject to criminal prosecution. "Without that permit, whether it's a state, a city or a tribe that passes a contrary law, they will be subject to federal prosecution."

On the other hand, Ballanco writes, "It is my professional opinion that (tribal) members who comply with OST Ordinance 98-27 do not have to comply with U.S. Drug Enforcement Agency (DEA) regulations regarding cultivation of marijuana in 21 CFR. 1300 et seq."

He cites several reasons for his conviction. "The right to cultivate industrial hemp on the reservation was retained by the various treaties between the United States and the Oglala Lakota (Sioux) nation, specifically the Treaty of 1868." The lawyer then refers to nine precedent-setting cases he says solidify the tribe's right to control the production of industrial hemp within its external boundaries.

Part of Ballanco's argument is the fact that wild-growing hemp plants are present in abundance on the Pine Ridge Indian Reservation. "The plants are here because at the time of the treaty, it was the only available product for making cloth and other items."
At the council meeting, Ballanco, a West Point graduate, wore a shirt, pants, socks and shoes, all manufactured from hemp products.

A key issue for the OST council, before voting on Ballanco's memorandum, was tribal liability for criminal prosecutions. After Ballanco promised to represent, pro bono, the tribal government and any tribal member prosecuted for growing industrial hemp, the tribe passed the plan.

Hearing of Ballanco's offer to represent tribal members, McBride said, "That's all fine and well - but will he go to jail for them?"

The sovereignty of tribal governments, both actual and theoretical, is central to the coming legal showdown.

"Under the 1868 Treaty, any rights reserved by the tribe can be claimed by a tribal member. By planting this field, I claim my treaty right as an Oglala Sioux," said White Plume.

OST Ordinance 98-27 requires that tribal members form Land Use Organizations (LUA), and apply for recognition through the tribe's Land Committee. White Plume's LUA is Kiza Tiyospaye located in the Wounded Knee District.

Asked if the DEA would notify OST tribal officials before coming onto the reservation to destroy industrial hemp plants, McBride said, "If the tribe has made themselves a part of this, then we would be ill-advised to notify them."

The first section of OST Ordinance 98-27 reads, in part: "... the Oglala Sioux Tribe recognizes that industrial hemp is a safe and profitable commodity in the international marketplace and is grown in more than thirty countries..."

Referring to this, part of Ballanco's memorandum reads: "OST Ordinance 98-27 is a more sophisticated piece of legislation than any of the outdated and vague U.S. federal and state laws regarding marijuana. It is based on a more precise understanding of chemistry and botany and is modeled after the legal structure that has proved successful in more than thirty nations around the world, including Canada, France, China, Germany and Australia."

"I heartily support any of the tribe's efforts at economic development, so long as they're legal," McBride said, "but there is a procedure to follow, and that means getting registered with the DEA."

Presently Alex White Plume's one-and-half acre plot has plants a quarter-of-an inch high. The Tiyospaye leader is optimistic. "This year we're just going to bundle the stalks and store them away. In a couple of years we should have enough to start taking orders. It would be bad business if people came to us and we couldn't honor their requests."

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