The original peoples of what is now the United States were left in legal limbo in the wake of the 2018 Farm Bill, which made hemp cultivation again lawful. Federally recognized Native American tribes could not cultivate under state regulation, because the states have limited jurisdiction on their reservations. But the US Agriculture Department dragged its heels in issuing federal regs that could apply on these lands. Caught between two sovereigns, many farmers in Indian country are asserting their right to cultivate hemp under the un-extinguished sovereignty of their own Native nations.
Reviving hemp in Menominee country
The Menominee Indian Reservation in northeast Wisconsin is visible from space. It appears on Google Maps as a dark green square of wooded land, contrasting the lighter green patchwork effect of cultivated fields that surrounds it, and bleeding into the dark of the Chequamegon-Nicolet National Forest that borders it on the north.
Marcus Grignon, speaking from the reservation, is proud to point this out.
“All the surrounding land was Menominee land that we had to surrender in treaties, and it is all big ag—the soil is depleted year by year due to pesticides and chemical fertilizers,” he says. “On Menominee, we don’t use pesticides, herbicides, fungicides on our lands. We’ve allowed our forests to grow the way they are supposed to. We do controlled burns to allow early successional plants to come up and establish roots for the later successional plants. We work for a good environmental stewardship policy, make sure the land is taken care of for the future. We have to preserve Grandmother Earth for seventh generation.”
But like many tribes, the Menominee are struggling to find their way economically in a country hit by crisis. The reservation has a logging mill, a tribal enterprise, but it has been repeatedly shut down by the pandemic. There is some cattle raising, and many homes have community gardens, growing corn and squash. Some on the reservation still gather wild rice on local waterways in the traditional way.
Grignon is involved in first efforts at hemp cultivation as an alternative for the Menominee and other native peoples of Wisconsin. One plot was planted this June on tribal lands under lease to the College of Menominee Nation, a land-grant community college established in 1993. A second is on the Oneida Nation reservation west of Green Bay, to the south, where a cooperative is leasing land from the tribal government. Both are still in the research phase.
“We’re trying to develop our own seed variety for the Great Lakes region,” Grignon says. “Find out—does it grow eight or nine feet tall? What machinery is needed? We want farmers to be able to make informed decisions when the time comes. And we’re bringing an indigenous perspective on the research, so our ways of observational analysis will be accredited when it comes to hemp research in the future.”
The college has developed a Sustainability Leadership Cohort program, which is providing “a pipeline of high school students” into the hemp project. They are working the plot as interns, as well as learning about the rich history of hemp in Wisconsin.
The two plots are using Anka and Altair seed varieties purchased from Canadian sources approved under auspices of the Association of Official Seed Certifying Agencies, AOSCA. This body oversees the lineage and genetic bona fides of agricultural seed stock across North America.
Unfortunately, the harvest was delayed due to trouble coordinating with the state Agriculture Department to get samples tested and assure compliance with the federally mandated 0.3% THC limit.
“We’re now experimenting with hemp hurd, since we missed the optimum time for fiber,” Grignon says, believing the hurd can have applications in construction and insulation—as in the HempBlock and Hempcrete products now marketed in Canada and Europe. “We’re hoping to build a small structure soon.”
Carrying on John Trudell's legacy
Coordinating both the Menominee and Oneida operations is Grignon’s Hempstead Project Heart, founded in 2015 to promote hemp for American farms, and especially across Indian country. The group, which Grignon directs, was awarded a grant for the current hemp project from the Native American Agricultural Fund.
The NAAF is a charitable trust created by the settlement of the landmark Keepseagle v. Vilsack class-action lawsuit, brought by Native American farmers seeking restitution for what they called generations of discrimination by the US Department of Agriculture. The case was settled in 2011, with the USDA agreeing to pay $760 million.
Grignon considers the Menominee-Oneida project a “feasibility study to show Native farmers the benefits of hemp cultivation in their crop rotation. We think this can be part of a foundation for Native farmers to thrive.”
He also sees a role in the hemp industry for urban Indians, who have migrated from Wisconsin’s reservations to Green Bay, Milwaukee, Madison or the Twin Cities. Grignon currently works for the Happy Trails CBD store in Outagamie County, two counties to the south of Menominee.
“We need our people in agriculture, and we need people in other aspects of the hemp industry who are native,” he says.
Hempstead Project Heart was founded by the legendary Santee Dakota activist, poet and recording artist John Trudell, who first came to fame in the 1970s as a leader of the militant American Indian Movement (AIM). Marcus flew to California to see John four days before his passing in December 2015. At that meeting, Trudell asked him to take the lead in Hempstead Project Heart, and carry on his vision of hemp as key to an ecological renewal in rural America and Indian country.
“John knew he was going and wanted somebody to take up the hemp torch and see that the vision is fulfilled,” Grignon says.
DEA raids the Menominee Rez
What first attracted Trudell’s attention to Menominee country was the raid of the reservation by DEA agents on Oct. 23, 2015. The agents destroyed what federal authorities said was a crop of illegal marijuana, and what tribal authorities said was a field of THC-free industrial hemp.
Then acting US Attorney for the Eastern District of Wisconsin Gregory Haanstad said agents executed a search warrant and seized about 30,000 “marijuana plants” weighing several thousand pounds. But then Menominee tribal Chairman Gary Besaw flatly contradicted this. He said in a statement: “I am deeply disappointed that Obama administration has made the decision to utilize the full force of the DEA to raid our Tribe. We were attempting to grow industrial hemp for research purposes in accordance with the farm bill.”
Besaw accused the White House of bad faith: “We offered to take any differences in the interpretation of the farm bill to federal court. Instead, the Obama administration sent agents to destroy our crop while allowing recreational marijuana in Colorado. I just wish the President would explain to tribes why we can’t grow industrial hemp like states, and even more importantly, why we don’t deserve an opportunity to make our argument to a federal judge rather than having our community raided by the DEA?”
In May of that year, the Menominee tribe had passed an ordinance legalizing cultivation of low-THC hemp under tribal licenses on its lands, citing text in the 2014 US Farm Bill that allowed hemp cultivation for research purposes. The plot was under cultivation by a Menominee family, on land leased from the tribal government.
According to Besaw’s statement, the tribe had engaged in numerous face-to-face consultations on its intention to grow hemp with the US Attorney’s office, as well as with Bureau of Indian Affairs (BIA) agents.
“What makes the actions taken today even more difficult is that the federal government is very aware of the great unmet needs of the Menominee,” said Besaw. “Menominee County ranks at the bottom of the state in poverty and health statistics. The Tribe is trying to meet those needs by researching the potential economic opportunities of industrial hemp just as Congress intended when passing the Farm Bill.”
The operative issue was tribal sovereignty. Industrial hemp crops were at that time being grown in Kentucky, Colorado and a handful of other states in compliance with the Farm Bill. But the bill stipulated that the exemption from federal law only applied in states that permit industrial hemp cultivation. This did not include Wisconsin. The Menominee argued that they should be afforded the same respect as a sovereign entity enjoyed by the 50 states, with their right to grow hemp under terms of the Farm Bill recognized. The federal contention that the crop was marijuana rather than hemp seemed to be more a matter of politics than THC content.
Did DEA violate Menominee sovereignty?
Sovereignty is an especially sensitive issue for the Menominee. Menominee County is Wisconsin’s newest, having been created in 1959 after the Menominee tribe was “terminated” by federal law. In the so-called “Termination Era” of the 1950s, several tribes were dissolved as legal entities and usurped of their lands by federal legislation. The former reservation lands were at this time incorporated as Menominee County, and whites started moving in, creating a confusion of conflicting claims that persists to this day. In 1975, amid the upsurge of American Indian activism and militancy, the tribe regained federal recognition and restoration of most of its reservation. Today Menominee County is essentially coterminous with the boundaries of the federally recognized Menominee Indian Reservation. The county and reservation share a common seat in the town of Keshena.
Marcus Grignon was an agricultural researcher with the University of Wisconsin at Green Bay when the Menominee tribe passed its hemp ordinance, and he helped oversee the test grow as part of a project supported by the American Indian College Fund. He recalls that the ordinance stipulated that cultivation must be undertaken in coordination with the College of Menominee Nation, to conform to the limited terms of the 2014 Farm Bill. Wisconsin’s arch-conservative Gov. Scott Walker had just nixed the tribe’s bid to open an off-reservation casino, which would have supplemented income generated by the Menominee Casino Resort at Keshena. This raised the imperative for an alternative way out of the tribe’s economic straits.
Grignon recollects the events that led up to the raid in October 2015. “The feds had already come out to the land and checked out the crop, back in July when it was a foot tall. We said, ‘We have a government-to-government relationship with you guys, we’re doing it by the law.’ But for the rest of summer they kept coming onto the land without tribal police accompaniment, taking pictures. It was kind of scandalous.”
“Days before raid, the US attorney came in with a device to test samples,” he continues. “They all came back negative. But the week we wanted to harvest, they came in to throw their weight around. They took samples and left, and then said the samples they took were hot, above the THC limit—but they never showed us the test results, they never shared them with tribal leaders. All those plants had seeds in them, we were going to use that seed for the next year’s crop and develop our genetics. But that didn’t happen.”
A Menominee lawsuit against the DEA over the raid was dismissed by a federal judge in May 2016. Again, the case did not turn on THC content, but sovereignty. District Judge William Griesbach in Green Bay accepted the argument of a Justice Department attorney that the term “state” in the 2014 Farm Bill only applied to Wisconsin, not Indian tribes—and Wisconsin law at that time did not permit growing hemp for any purpose. He wrote, in a seeming self-contradiction: “While Wisconsin law is not enforceable on the Menominee Reservation, that does not change the fact that the growing or cultivating of industrial hemp is not allowed under the laws of the State of Wisconsin.”
The tangle of sovereignty law
These dilemmas are rooted in the unique status of federally recognized Native American lands. Under a doctrine established by two Supreme Court decisions concerning the Cherokee in 1831 and 1832—together known as the Cherokee Indian Cases—the Native American nations are not “foreign nations” but “domestic dependent nations,” with limited sovereignty on lands “held in trust” for them by the federal government. Under this so-called “trust doctrine,” it is the federal government, and not the states, that shares power with the tribes on these lands.
The Indian Citizenship Act of 1924 clarified that Native Americans are US citizens, with the right to vote, and the Indian Reorganization Act of 1934 established the formal tribal governments.
Most federally recognized reservations (there are a few only recognized by state governments, which fall outside “trust doctrine”) consist of “trust lands,” those formally owned by the federal government (more specifically, by the Interior Department), and “fee lands,” those bought by the tribal governments and appended to the reservations.
The Menominee reservation was established by an 1848 treaty with the US government, and the tribe’s hunting and fishing rights (on and off the reservation) explicitly acknowledged in return for further ceded lands in a second treaty in 1854.
But their situation has been complicated by two factors. One was the tribe’s 18 years of “termination” that formally began in 1958.
The other was Public Law 280 of 1953, another termination-era statute that allowed state governments to have criminal and civil jurisdiction on tribal lands in Wisconsin, Minnesota, Nebraska, California and Oregon. This was opposed by tribal governments at the time, who protested that they had not been consulted.
The legal effects of both these measures have now been largely reversed. PL 280 remains on the books, but Wisconsin retroceded jurisdiction over the Menominee Reservation back to the feds when the tribe’s federal recognition was restored in 1975.
In the intervening years, however, much damage was done. Federal aid that had been promised in compensation for ceded territories under the 1848 and 1854 treaties was cut off with termination, and the tribal government no was longer recognized as a sovereign entity. The tribe’s hydropower system was dismantled, the turbines and machinery sold off. “We lost our hospital that Indian Health Services was paying for, and the off-reservation hospital often didn’t even respond to emergency calls,” Grignon relates.
The tribe also lost its rights to hunting, fishing and rice harvesting on off-reservation lands and waters, most critically, the Wolf River. These rights were only restored when the Menominee took the matter to the Supreme Court and won in 1968—establishing that treaty rights cannot be extinguished through termination.
The reservation lands themselves were broken up into private parcels with termination—setting off a chaotic scramble for property. “My dad’s generation said it was lawless at the time, there was no oversight, nobody knew who was in control,” Grignon says. “It was a dark time for a lot of Menominee. You had a generation that didn’t pass on a lot of tradition they got from their parents, there was a gap in the cultural transmission. We’re trying to get it back now, but we have a lot of catching up to do.”
Since restoration, the tribe and county have existed side by side, with their jurisdiction divided depending on whose citizens are at issue—enrolled tribal members (numbering some 4,000) or the few hundred white settlers who mostly moved in during the termination period.
A plan to mine for sulfides in the Wolf River basin, which could have degraded traditional Menominee lands and waters, was only defeated this year, when the company pulled out in the face of environmentalist opposition.
These complications posed both challenges and opportunities when the Menominee emerged at the forefront of restoring Wisconsin’s hemp economy.
Cultivation ‘on our own sovereignty’
Wisconsin has a proud legacy of hemp production—although the history was nearly forgotten for two generations before being rediscovered and brought to light by advocates.
In the opening years of the 20th century, the newly formed US Department of Agriculture especially promoted the industry in the state. The early Agriculture Secretary Jeremiah Rusk, himself a former Wisconsin governor (and Civil War hero), established an Office of Fiber Investigations, which oversaw test plots in the Badger State. By 1920, Wisconsin was the country’s leading hemp producer, growing more than all the other states combined. It was so profitable that the industry even survived passage of the Marihuana Tax Act in 1937, with farmers simply paying the exorbitant taxes imposed on the crop. The industry boomed under the USDA’s wartime “Hemp for Victory” program, which provided tax exemptions and even subsidies. Some Wisconsin farmers would even tell historians that the industry again survived, if briefly, the end of World War II and cut-off of the subsidies—that it was only the advent of cheap synthetic fibers in ‘50s that finally ended hemp cultivation in the state.
It was, in large part, Hempstead Project Heart and the Menominee that have worked to revive this history over the past years—even if Native Americans had been largely excluded from hemp wealth back during the boom. And they perceived that their unique jurisdictional status could provide a legal opening to revive production in the state.
In 1970, the Controlled Substances Act had superseded the Marihuana Tax Act, making cannabis formally illegal (rather than de facto illegal under an onerous tax burden). The first crack in this federal prohibition was the 2014 Farm Bill, which allowed small hemp plots for research purposes, in states that approved it.
The 2014 Farm Bill did not mention Indian tribes, but later that same year, the Justice Department issued the Wilkinson Guidance Memorandum, which suggested leniency “in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country.” This was building on the previous year’s Cole Memorandum, issued in response to the successful marijuana legalization initiatives in Colorado and Washington state and similarly calling for a tolerant approach—but not explicitly mentioning Native American jurisdictions.
However, the Wilkinson memo was clear that it was only a “guidance” for enforcement, that nothing in its text “alters the authority or jurisdiction of the United States to enforce federal law in Indian Country.”
By planting hemp on the reservation, the Menominee challenged that. “We said we were going to do it on our own sovereignty,” Grignon says.
And that’s what they argued when they challenged the legality of the DEA raid in federal court. Grignon portrays this as a strategic gamble. “If we had argued that the college had the right to conduct research as institution of higher education, I thought we’d have won,” he says. “But a ruling for the Menominee on sovereignty grounds would have set a precedent for other non-PL 280 tribes to oversee hemp cultivation on their lands.”
Compromise with USDA
On Nov. 30 , 2017, Gov. Walker finally signed legislation allowing hemp cultivation for research purposes, as permitted by the 2014 Farm Bill. This was the fruit of a lobbying effort by the Menominee and farmers across the state.
“We worked with farmers in the area to make hemp legal again,” Grignon says. They eventually got the Wisconsin Counties Association on their side, as well as the Wisconsin Farmers Union and state Farm Bureau. “That was the one that got the Republicans to perk up,” Grignon recalls, referring to the Walker administration and the governor’s GOP allies who then controlled the state house.
Then came the 2018 Farm Bill, which legalized commercial cultivation of hemp—under either state regulation or direct USDA regulation. This new Farm Bill did mention tribal sovereignty, although not in relation to hemp per se. Provisions for Native American participation in USDA conservation and forestry programs were largely the fruit of pressure from the Native Farm Bill Coalition, launched by the Shakopee Mdewakanton Sioux Community of Minnesota.
But for nearly a year after passage of the Farm Bill in the closing days of 2018, Native American farmers were left in the lurch. While most farmers could legally operate under state regulations for hemp cultivation, would-be growers on federally recognized Indian reservations had to wait on issuance of USDA regs. Until then, they were effectively barred from growing hemp in spite of the change to federal law. It wasn’t until the end of October 2019 that the USDA finally issued its “Domestic Hemp Production Program.” Then, there was a 60-day public comment period before it took effect.
But in May 2019, the USDA, at least, had issued a policy statement “clarifying” that it interprets the 2014 Farm Bill to mean that “an Indian tribe can enter into a partnership or contract with an institution of higher education or a State department of agriculture” to establish hemp cultivation for research purposes. The Menominee jumped on this, and amended their 2015 Hemp Ordinance to allow state regulation—which is why their crop was tested by the Wisconsin Agriculture Department, not the USDA. Grignon calls this a voluntary “government-to-government relationship” between the Menominee and the state of Wisconsin.
Meanwhile, the Menominee are preparing a regulatory plan to submit to the USDA for approval, allowing them to cultivate commercially under the 2018 Farm Bill.
Grignon views accepting either state or federal regulation as a necessary compromise—at least for now. “I wish we didn’t have to deal with the USDA when it comes to hemp production on tribal land. We push for full sovereignty as much as we can.”
He does count as a victory that the USDA regs allow tribal governments as well as states to submit their plans for approval. For the states, this means farmers operating under their plans can qualify for USDA aid packages. For the tribes, it additionally means they can grow hemp under their own oversight, albeit with USDA sign-off.
The USDA has thus far approved plans for several tribal governments, including the Colorado River Indian Tribes in Arizona, the Fort Belknap Indian Community in Montana, the Iowa Tribe of Kansas and Nebraska, the Cheyenne & Arapaho Tribe of Oklahoma, and the Yurok Tribe, Santa Rosa Cahuilla and La Jolla Band of Luiseno Indian Tribes of California.
At such time as the USDA accepts their hemp regulation plan, Grignon says the Menominee’s government-to-government accommodation with Wisconsin will “expire.”
It wasn’t until Nov. 26, 2019, that the state’s new Democratic Gov. Tony Evers signed a law approving commercial cultivation of hemp in Wisconsin. But when the Menominee move to commercial cultivation, it will be under their own regulatory authority.
The Menominee crop has faced a challenge from Japanese beetles, and Grignon says they are exploring “integrated pest management” methods to get the problem under control without resorting to chemical pesticides.
Grignon is nonetheless determined—not only to make hemp work for the Menominee and Oneida, but for their efforts to serve as an example for farmers countrywide. “Hempstead Project Heart wants to raise awareness of the benefits of growing hemp for everyone on the planet now,” he says. “We want thriving hemp economies connecting tribal, rural and urban communities throughout the United States.”
Hemp versus pipelines
In northwest Minnesota, the White Earth Indian Reservation is home to one of the country’s foremost voices for Native land restoration and cultural survival—Winona LaDuke. In 1989, she founded the White Earth Land Recovery Project to buy back usurped reservation lands for the Anishinaabeg people (also known as Ojibwe or, by the English corruption, Chippewa). A former board member of Greenpeace USA, she has a national voice as co-chair of the Indigenous Women’s Network and her own Honor the Earth foundation.
LaDuke sees her efforts at White Earth as model for what she calls an “Indigenous Green New Deal.” She points to the reservation’s solar panel manufacturing facility, 8th Fire Solar. “We purchased state-of-the-art technology and began manufacturing last fall,” she tells Project CBD.
This vision also includes hemp. LaDuke has established the Anishinaabe Agricultural Institute to promote hemp cultivation on White Earth. She is now growing six hemp varieties on 20 acres—both on her own farm and adjacent reservation lands owned by the White Earth Land Recovery Project. Now in her fifth year of cultivation, she is focusing on fiber varieties and hoping to develop a market among other Native peoples. “The Navajo are interested in buying hemp fiber to weave rugs,” she says.
She’s also provided seed to aspiring hemp farmers on the Rosebud Sioux reservation and Cheyenne River Sioux rez, both in South Dakota. And in her own corner of northern Minnesota, she’s similarly working with local Amish farmers to cooperate in building a hemp economy. “The next economy is based on cooperation not competition,” she says.
For three years, White Earth has hosted an Indigenous Hemp Conference, bringing together Native American growers from around the country. The last one was held in March, just before the pandemic hit the US.
LaDuke calls hemp critical to “transforming the material economy” of the country and the world. “It is the new green revolution,” she says. “Anything you can make out of oil you can make out of hemp—plus there’s a lot of other cool things you can do, from hempcrete to hemp pasta.”
LaDuke explicitly views such an economy as an alternative to the dominant one based on fossil fuels—which she is actively resisting. Much of her time now is devoted to the fight against the Line 3 oil pipeline that the Canadian company Enbridge hopes to build through Minnesota. Part of a network of pipelines bringing Canadian tar-sands oil to US markets, it is actually a replacement line for an earlier one built in the 1960s. A part of the imperative for the new line is to bypass the Leech Lake Band of Ojibwe reservation, which the old one bisects. But Enbridge is taking the opportunity to expand the line’s capacity—bringing in more oil from northern Canadian lands where the Cree and other Indigenous peoples are impacted by extraction.
“This is fuel from a notoriously polluting source. We’re at the end of the fossil-fuel era. Other pipelines have gone bankrupt. Why would you approve a new one?” LaDuke asked rhetorically, speaking to the Minneapolis Star-Tribune earlier this year.
Authorities in Canada, North Dakota and Wisconsin have approved construction of the new line—but Minnesota’s Department of Natural Resources has still not granted full approval. This is partially due to the vocal opposition of the state’s Native peoples, including the White Earth Band of Ojibwe. Together with the Mille Lacs Band of Ojibwe and Red Lake Band of Chippewa, they have brought legal challenge, asserting that the potential for oil spills from the line poses a risk to their treaty-guaranteed hunting, fishing and gathering rights. LaDuke is a leading voice of the state’s Stop Line 3 coalition.
And nearly always, in her vocal protests against Line 3 and related projects like the Keystone XL and Dakota Access pipelines (also notoriously impacting Native lands), LaDuke poses hemp as an alternative. In a commentary for Indian Country Today Media Network, she noted the growing signs of imminent climate apocalypse, and added: “We might want to avert that by not pillaging the tar sands (with 240 gigatons of carbon under some pristine ecosystems). Instead we might want to concentrate on infrastructure for people and future generations. North Dakota, for instance could be the largest exporter of wind and hemp oil in North America...”
While Enbridge boasts that construction of Line 3 would generate thousands of jobs, a company project director admitted under oath at a state hearing this year that only 22 permanent jobs would be created in Minnesota.
“We’re gonna have more than 22 jobs in the hemp economy by next year,” LaDuke tells Project CBD. “And we won’t be destroying, but creating.”
An Indigenous Green New Deal
LaDuke envisions hemp as part of a mix of new crops and technologies that can break the oil addiction. She foresees a “diversified economic transition that can move northern Minnesota farming away from industrial agriculture to hemp and local foods, cutting waste in the production and transport of food by localizing. We can move from cars to trains, and make trains electric. There’s so much wind potential along the rail lines. We have wind turbines coming from Europe at the port of Duluth. Why aren’t those turbines made here for use in Nebraska?”
With Native peoples at the forefront in her vision, LaDuke hopes the coming years will see an “intertribal hemp coop” for the Great Lakes and Plains states. “There are lot of tribes in the region with good land for hemp, but sharing processing equipment would be great.”
And while her focus is industrial hemp, LaDuke does not equivocate on liberation of the psychoactive varieties: “I support legalization of cannabis totally—a just transition in which people of color impacted by the war on drugs own some of the production capacity and dispensaries.”
She notes that this August, White Earth passed a medical marijuana ordinance, and is putting a regulatory mechanism in place for cultivation. “It’s more than likely that by 2022, we’ll be growing medicinal cannabis on the reservation.”
She also links Native sovereignty to restoration of hemp and cannabis genetics after generations of prohibition. “The 0.3% is really punitive and makes no sense,” she says, referring to the federal limit on THC content in hemp. “The tribes should take jurisdiction over that. The plant needs to redevelop its biodiversity and strength.”
Standing Up in Lakota Country
The Pine Ridge Indian Reservation, in the southwest corner of South Dakota, is a stark domain of dry plains and eroded buttes—the last refuge of the Oglala Lakota, or Oglala Sioux. They once shared the Great Sioux Reservation with the other Lakota nations—covering half present-day South Dakota, including the mineral-rich timberlands of the Black Hills. Beyond this expanse, parts of Nebraska, Wyoming and Montana were designated “unceded” hunting grounds. These were the terms of the 1868 Fort Laramie Treaty—the fruit of Chief Red Cloud’s Powder River War.
The treaty was, of course, broken—first, after the 1874 Custer Expedition discovered gold in the Black Hills, and Congress voted to unilaterally confiscate them, along with the “unceded” territory. The Lakota and their allies launched the Great Sioux War in response to abrogation of the treaty, dealing Gen. George A. Custer a humiliating death and defeat at the Battle of the Little Bighorn—although in the end, they had to accept the diminished reservation. Through further reductions of the Lakota homeland, Pine Ridge would remain a symbol of resistance.
In 1890, it was the scene of the Wounded Knee massacre, when the US cavalry killed some 300 to put down the Ghost Dance revivalist movement. In 1973, it was the scene of a second Wounded Knee incident, when the American Indian Movement seized a trading post at the village to press their demands for Congressional hearings on broken treaties. Two AIM militants were killed in shoot-outs with the FBI. A 1975 shoot-out at an AIM camp on Pine Ridge left one Indian and two FBI agents dead—and led to the notorious case of Leonard Peltier, the AIM militant still in prison for the murders of the FBI men, despite revelations of withheld evidence and demands for his release from Amnesty International.
And Pine Ridge is the home of Alex White Plume, who has prevailed over long federal attempts to shut down his hemp-stead on the reservation—which included three DEA raids on his farm.
White Plume now has two acres of hemp under cultivation. “I’m trying to buy an extracting machine, to extract CBD myself,” he tells Project CBD. “Extract it and market it right here myself, on the reservation.” He believes it could be effective for common ailments on the rez, from arthritis to veterans suffering from PTSD.
“I also have potential buyers in Europe,” he says. “I get calls every day from people wanting to know when I’ll have it for sale.”
But he expresses a wariness of the global market, rooted in his traditional Lakota values. “I’m fluent in in my language, so it’s difficult for me to venture into capitalist world, and there’s a line I wont cross,” he says. “We have to reclaim our sovereignty based on kinship. I try to include my family in everything I do. I step in to the capitalist world, and step back out. I’m trying to find a middle ground.”
White Plume, a former Oglala Sioux tribal councilman who also briefly served as tribal president in 2006, grew up on his Pine Ridge farm. Even before planting hemp, he was part of an effort by the Oglala Lakota to re-unite their fragmented patrimony in “land-use associations,” which correspond to tiospayes—the extended families that are the oldest form of Lakota government, but had been largely broken up by BIA policy. His 210-acre farm is part of the White Plume tiospaye—a registered landowners’ association of 4,000 acres.
He views hemp as part of a regeneration of self-sufficiency and sustainable culture on a reservation that suffers from some of the worst poverty in the United States.
Land-use associations on the reservation are experimenting with using “hempcrete”—a mix of hemp hurds and hydrated lime—to build “hemp houses” or “earthships.” The latter is a new kind of heat-efficient dwelling designed by Earthship Biotecture of Taos, NM. Mostly underground, it is protected by a domed shell consisting of earth, recycled materials such as tires and beer cans, and fiber-based bricks.
The Oglala Lakota Cultural & Economic Revitalization Initiative (OLCERI) is constructing a similar earthship-style building as a community center in cooperation with Tiyospaye Winyan Maka and other reservation land associations. This one is designed by Engineers Without Borders of Fort Collins, Colo. The foundation was nearly complete when work was slowed by the pandemic. OLCERI has built several “sustainable homes” on Pine Ridge using such fiber-based materials as cob—a mix of sand, clay and straw. Also under consideration is hempcrete, although the legal ambiguities have until now meant some hesitancy.
In addition to hemp, the WaCinHinSka (White Plume) tiospaye is growing watermelon, onions, potatoes and jalapeños, and raising horses and buffalo. Alex is especially proud of his buffalo, which the White Plume tiospaye lives off. “One buck will get the family through a year,” he says. “These are the purest buffalo left. They’ve never been cross-bred with cattle.”
But it was his hemp that led to yet another Lakota confrontation with federal power.
DEA raids Pine Ridge—three times
Hemp, once a widespread crop on Pine Ridge, was planted again on April 29, 2000—the 132nd anniversary of the signing of the Fort Laramie Treaty. White Plume announced the planting on the reservation’s KILI Radio. He publicly invited the US Attorney in Rapid City, SD, and the local BIA supervisor to attend and witness. Both declined to show up when the 1.5-acre field was seeded.
White Plume had authority to grow hemp from the Pine Ridge government—designated the Oglala Sioux Tribe, or OST. In July 1998, the tribal council had passed an ordinance distinguishing hemp from marijuana, and allowing cultivation of the former—a full 20 years before the US Farm Bill did the same thing for the United States. The ordinance instated a 1% THC limit. It required growers to form land-use associations and register with the OST Land Committee, which was to “interface” with “any interested law enforcement.” The OST’s then-President John Yellow Bird Steele publicly endorsed the White Plume planting.
But on August 24, 2000, just before harvest time, some thirty DEA and FBI men and US Marshals invaded the White Plume homestead. Alex woke to sounds of helicopters before dawn, looked out the window and saw the convoy of vehicles heading for the hemp field. He jumped in his truck. Arriving at the field, he was ordered to freeze and had an M-16 stuck in his face. Children, nieces and nephews who had gathered at the field, watched, some in tears.
The DEA knew what they chopped down and hauled away was rope, not dope. The DEA’s warrant request actually cited a sample plant that Alex gave a BIA investigator who had warned him his field was illegal. The sample was forwarded to the federally-contracted Marijuana Research Facility at the University of Mississippi. Read the warrant request: “That analysis revealed that the plants contained no detectable quantity of THC.”
Agents claimed to have uprooted 3,782 plants. Under federal law, possessing over 1,000 plants is punishable by 10 years to life—at that time, regardless of THC content.
A one-sixteenth-acre test plot on tribal land leased by the Slim Butte land-use association was raided the same morning. The OST was not even notified of the raids.
While the conservative Rapid City Journal headline read “Marijuana crops raided,” Alex’s brother Percy White Plume told the Lakota Nation Journal: “This is the same kind of treatment we’ve been getting for the last 150 years. Standing here watching them cut down and take away our crop, I had a small feeling of how our ancestors felt when they were told not to go off the reservation, that they couldn’t hunt buffalo...”
The White Plume tiospaye was joined by actor Woody Harrelson and 100 supporters at a September protest outside the Rapid City federal building.
Both the land-use association and the California-based Tierra Madre company which had contracted to buy much of the harvest, filed suit to have the hemp returned. But District Judge Richard Battey in Rapid City denied an injunction to halt destruction of the plants after the prosecution argued that “any injunction...cannot undo the fact the plants are already rotted.”
In 2001, OST President John Yellow Bird Steele wrote a letter to then-US Attorney for South Dakota Michelle Tapken, asserting the Lakota nation’s right to grow hemp under provisions of the Fort Laramie Treaty. While the treaty recognized “unceded lands” for buffalo hunting, it also included provisions to encourage agriculture on the reservation as conducive to settled life.
White Plume’s family planted another crop in 2001—only to watch the feds cut and seize it again in a raid of the farmstead that May.
The family planted yet a third crop the next year. In July 2002, DEA agents seized samples—this time sending them off to the University of Mississippi lab, which confirmed that they were “marijuana” (despite low THC content). It was clear the feds were going to do more than just seize the crop this time.
Push had come to shove, and negotiations ensued. White Plume agreed not to resist this third confiscation of his crop in exchange for a pledge that no criminal charges would be filed against him. And when the farm was again raided and the crop seized the following month, White Plume was instead served civil charges. Prosecutors sought a federal injunction specifically barring him from growing hemp.
Despite the DEA’s initial claim, the case (once again) did not turn on THC content. The White Plume family denied that the crop was “marijuana.” They asserted that they were “cultivating industrial hemp exclusively for industrial or horticultural purposes” and were “exempt from the application of the Controlled Substances Act.” But In December 2004, the Rapid City district court ruled that “hemp is a variety of Cannabis sativa L.” and that the chemical difference between hemp and marijuana was not relevant. White Plume was barred by federal court order from growing hemp for life.
White Plume prevails
But his dream lived on. In October 2014, Alex travelled to Boulder to be specially honored at Grow Hemp Colorado’s Industrial Hemp Awards & Festival.
And that year’s Farm Bill, with its limited provision for experimental hemp cultivation, would prove a turning point for White Plume’s efforts. In March 2016, District Judge Jeffrey Viken in Rapid City lifted the injunction on White Plume, citing the “shifting legal landscape” since it was instated, making continued enforcement “detrimental to the public interest.”
“This order brings some justice to Native America’s first modern-day hemp farmer,” said his attorney Timothy Purdon. “For over 10 years, Alex White Plume has been subject to a one-of-a-kind injunction which prevented him from farming hemp.” The order did not address the question of whether cultivation of hemp on the reservation should be recognized as legal.
Alex White Plume, of course, asserts that it is. “I had rights under our sovereign powers,” he says. “We’re a treaty tribe we retained territory under treaty with the United States. If state police come on the reservation, they can be arrested for trespassing.”
White Plume resumed hemp cultivation in 2017, with no further interference from the feds.
In March 2020, the USDA approved the Oglala Sioux Tribe’s hemp production plan—which means that, finally, White Plume is unambiguously in the legal clear.
South Dakota has been slow to get on the hemp bandwagon. The state’s Republican Gov. Kristi Noem in March 2019 vetoed a bill that would have allowed hemp cultivation in the state. A year later, she finally capitulated and signed such a bill, following a long battle with legislators.
Of course, technically state law made no difference on Pine Ridge. But White Plume says the state’s foot-dragging impacted him anyway. “I had a difficult time to sell my hemp because the state didn’t legalize it,” he says. “I lost a lot of opportunities to sell, because people didn’t believe me that I was growing legally.”
When I spoke with him in October, White Plume was preparing to harvest—waiting on a certificate from a DEA-approved lab in Colorado that his crop is within the THC limit.
“My nine children and 37 grandchildren all pitch in for the harvest,” he says. “I love ‘em all. They’re all smart, beautiful Lakota people.”
There are five other hemp growers on Pine Ridge this year.
Other Sioux nations assert right to hemp
The Oglala Lakota are the westernmost of the Sioux nations, which extend as far east as Minnesota. Known in their own tongue as the Oceti Sakowin, or Seven Council Fires, they make up a loose confederation of tribal governments—several of which are looking to hemp for economic renewal.
The Sicangu Lakota, or Rosebud Sioux Tribe, whose reservation borders Pine Ridge on the east, have also had a hemp cultivation plan approved by the USDA.
The Hunkpapa Lakota, or Standing Rock Sioux, are across the state line in North Dakota. After North Dakota legalized hemp cultivation in 2015, they immediately expressed an interest in growing, and now also have a plan approved by the USDA. They gained fame four years ago with their protest campaign against the planned Dakota Access Pipeline, which drew support from Native peoples and their ecologist allies across the US. After protesters camped for weeks on the frigid North Dakota plains and faced off with militarized state police forces in the autumn of 2018, President Obama's administration blocked completion of the pipeline just before he left office. It was immediately revived by President Trump. The Standing Rock Sioux are still fighting the project in the courts.
At the eastern end of South Dakota, the Isanti Dakota or Flandreau Santee Sioux Tribe actually brought a lawsuit against the USDA in June 2019 over the Department’s failure to issue regulations allowing Indian nations to grow hemp. District Judge Karen Schreier in Sioux Falls denied the tribe’s request for a preliminary injunction that would have allowed cultivation to commence. The case was dropped when the regs were finally promulgated, and tribe’s hemp plan won approval that December.
Said the Flandreau Santee Sioux Tribe in a statement announcing approval of its plan: “The tribe is confident that this plant is not only an incredible economic opportunity because of its vast product offerings, but is also native to this area, and beneficial to the environment.”
After the states of Washington and Colorado voted to legalize adult use of psychoactive cannabis (“marijuana”) in 2012, some Sioux nations asserted their right to do likewise. In June 2015, the Flandreau Santee Sioux voted to legalize cultivation and use of cannabis on their tribal lands. Later that year, tribal leaders announced plans for the addition of a cannabis-themed resort to the reservation’s successful casino. Marijuana grown on the rez was to be available in a new nightclub and “smoking lounge.” Plans for “social consumption” of cannabis were being pioneered by the Santee Sioux before various states and municipalities around the country started pursuing the idea. “We want it to be an adult playground,” tribal President Anthony Reider told the Associated Press at the time.
But that November, the Tribal Council voted to temporarily suspend their marijuana operation. Immediately after the vote, the tribe’s first cannabis crop was burned in the fields.
The decision was taken after South Dakota officials, including then Attorney General Marty Jackley, warned that legalization on the reservation would only be seen as applying to tribal members. Therefore, non-tribal members using cannabis on the reservation risked prosecution under state law. Rather than risk a confrontation with state authorities, the tribe agreed to suspend the project.
However, the move was explicitly seen as a tactical retreat. Tribal attorney Seth C. Pearman said in a statement: “After government-to-government consultation with the United States, the Flandreau Santee Sioux Tribe is temporarily suspending its marijuana cultivation and distribution facilities. This suspension is pivotal to the continued success of the marijuana venture... The Tribe will continue to consult with the federal and state governments, and hopes to be granted parity with states that have legalized marijuana. The Tribe intends to successfully participate in the marijuana industry, and Tribal leadership is undaunted by this brief sidestep.”
Instead, ambitions were parlayed into hemp cultivation after the 2018 Farm Bill—only to be met with nearly a year of stone-walling by the USDA.
The Santee Sioux are certainly owed some long-delayed justice from Uncle Sam. Their history is the all-too-familiar one of expropriation of traditional lands, followed by forced relocation.
The Santee Sioux briefly made news in December 2012, when tribal members made a horseback pilgrimage to Mankato, Minn. The cross-country ride was made to commemorate the 150th anniversary of the 1862 mass public hanging there of 38 Dakota Sioux men, for crimes allegedly committed in that year’s US-Dakota War—the largest mass execution in US history. The execution order was personally signed by President Abraham Lincoln. After the war, the Dakota were pushed west from their Minnesota homeland and became known as the Santee Sioux. They settled at Flandreau, and a second Santee Sioux reservation in Nebraska.
The Nebraska branch of the Santee, the Santee Sioux Nation, also now have a hemp plan with USDA approval.
The Oglala Sioux tribal council in 2014 voted down a proposal to allow marijuana cultivation on Pine Ridge. The council’s the Law & Order Committee chair Ellen Fills the Pipe said before the vote: “For me, it's a drug. My gut feeling is we're most likely going to shoot it down.” The San Francisco Chronicle’s cannabis-friendly Smell the Truth blog couldn’t refrain from noting the irony of her name, but also acknowledged fears, realistic or not, that rez pot sales could exacerbate already existing alcohol and substance abuse problems.
Nonetheless, in March 2020, Oglala tribal members approved a reservation initiative to change the OST cannabis laws, and in late October the tribal council followed through on the will of the voters. Cannabis cultivation and possession, both for medical marijuana and general adult use, are now legal at Pine Ridge. The tribal council vote came just a week before the national elections in which South Dakota was among six states to approve initiatives loosening cannabis laws. In two separate South Dakota ballot measures, both medical marijuana and adult-use cannabis were legalized.
Showdown at Navajo Nation
Four Corners—where Arizona, New Mexico, Utah and Colorado meet—is the heart of the Navajo homeland, guarded by four sacred mountains. The high desert territory of the Navajo (who call themselves the Diné in their own tongue) is among the most remote places in the Lower 48.
Navajo land stretched across the Colorado Plateau to the Rio Grande before they were pushed west into the desert by Spanish, Mexican and Yankee settlement. In 1864, Gen. James H. Carleton, convinced that Navajo territory was rich in gold, dispatched Kit Carson to move the Indians out or kill them. In the “Long Walk,” 10,000 Navajo were marched 400 miles to disease and hunger on meager lands at Fort Sumner, NM. In 1868, Gen. William T. Sherman and 29 Navajo headmen signed a treaty allowing the tribe to return to a new reservation on a reduced but still expansive portion of their traditional lands. The reservation remains the largest in the United States by far, although it is an arid domain where red sandstone predominates.
It proved not to be gold, but other minerals under the Navajo earth that would shape their future. It’s a perverse irony that this homeland, circumscribed by the sacred mountains San Francisco, Hesperus, Blanca and Taylor, is today ringed by four massive coal-burning power plants. These plants since the 1960s have literally fueled the real-estate boom that has transformed the Southwest, fed with coal taken from the reservation’s Black Mesa under contract with the Navajo Nation tribal government. They often fill the once-pristine desert sky with a smoky haze.
Before that, uranium was mined on reservation lands—resulting in a wave of cancer among Navajo miners and mesa dwellers, and a grim legacy of “uranium widows.”
There are few paved roads on Black Mesa, covering much of the Arizona portion of the reservation, and often no running water. Scare water services this year contributed to a deadly spike of COVID-19 cases on the reservation. This is the Navajo world the tourists don't see—a world of ancient traditions, hardscrabble living, goat-herding and massive mineral exploitation.
Yet plans to develop a hemp economy as an alternative on the reservation have thus far been mired in controversy. On reservation lands in New Mexico, east of Black Mesa in the valley of the San Juan River, a showdown appears to be brewing.
On the irrigated farmlands of this tributary of the Colorado River, Navajo tribal police this summer began threatening to raid a multi-greenhouse hemp operation that was seemingly established on nobody’s authority.
In September, the Navajo Nation government went to the tribal district court at Shiprock, NM, and won a preliminary injunction against Dineh Benally, president of the San Juan River Farm Board, and his two companies, Navajo Gold and Native American Agricultural.
In addition to claiming that some of Benally’s crop was actually marijuana, tribal authorities also said investigators from the Navajo Environmental Protection Agency (NEPA) found water-quality violations in his operation, which actually incorporates several local farms. The local Navajo Times reported claims that the operation was improperly using irrigation water, depriving neighboring farms. An account in Searchlight New Mexico described hired guards in flak jackets patrolling the public roads alongside the complex of greenhouses, ringed with security cameras. It’s also asserted that many of the some 1,000 employees at the facility are not Navajo but Chinese immigrants brought in from Los Angeles—some underage.
In a new suit brought the following month, the tribal government sought to shut down some 30 other farmers on the reservation on similar grounds, mostly in the San Juan Valley.
Raids by tribal police or even federal agents on these properties appeared to be imminent. NEPA director Oliver Whaley told the Navajo Times his crew were in the middle of an inspection at one of the farms in September when they were chased off by guards and employees. Whaley’s testimony was critical in winning the injunction, as well as a compliance order.
“The compliance order is to allow us to finish our environmental inspections and requiring that Mr. Benally and all farm workers be present to answer questions and provide information,” said Whaley. “If Mr. Benally doesn’t comply with either order, we would continue to move forward with the process of getting Navajo Nation search warrants, as well as working with our federal partners at USEPA to do the same under federal authority. Which processes we have already begun.”
Benally asserts that the Navajo Nation has no jurisdiction over what farmers can grow on their land.
“This current administration is telling the people that these farms belong to Navajo Nation,” he told the Navajo Times. “That is not true and that is what will go before the court... As your farm board president, as your government tribal official, I believe these farms belong to the individual Navajo. It does not belong to the Navajo president. These lands belong to the individual farmers they don’t belong to the chapter, it doesn’t belong to Window Rock.”
Window Rock is the Navajo Nation capital, across the state line in Arizona, and “chapters” are its administrative divisions. The jurisdictional ambiguity arises from the fact that San Juan Farm Board holdings are private enterprises on leased tribal lands of the San Juan Chapter, receiving water from the US Bureau of Reclamation as part of the Navajo Indian Irrigation Project. The local press accounts portray Benally exploiting his position as Farm Board head to establish a small empire in illegal cannabis.
Benally, on his own website (recently expired, but still archived), says he’s using his leadership position to “collaborate with government delegates, grazing officials, and chapter officials to protect native water rights and improve the economy and livelihood of the Navajo People.” He failed to respond to numerous efforts by Project CBD to reach him.
In any case, Benally’s authority to grow hemp seems dubious. The USDA has not approved Navajo hemp regulation plan. Last year, although not this year, a small hemp plot was grown by the Navajo Agricultural Products Industry (NAPI), a tribal enterprise on lands south of the San Juan River. This was done in cooperation with New Mexico State University under terms of the 2014 Farm Bill.
The Navajo Nation’s cannabis law has since 2000 included a carve-out for low-THC hemp, but growing on the reservation is not considered legal by the tribal government until a USDA plan is approved.
Benally has sought approval for a separate plan exclusively for the San Juan River Farm Board, but the USDA rejected it, stating that the body lacked jurisdiction.
The first of the threatened federal raids arrived Nov. 9, when a joint force of FBI agents, New Mexico state police and Navajo tribal police carried out search warrants on properties near Shiprock. Authorities initially told the press the warrants were sealed and they could not provide details on the investigation. But the US Justice Department later issued a statement claiming that 260,000 "marijuana" plants had been eradicated, and 60,000 pounds seized as evidence—although of what exactly was not stated. The Navajo Times reported that the raids had been dubbed "Operation Navajo Gold"—unsubtly named for one of Dineh Benally's companies.
Hemp in the sacred earth of Chimayó
Some 100 miles east of the Navajo reservation is the historic village of Chimayó, NM, across the Rio Grande in the foothills of the Sangre de Cristo Mountains. This is just beyond what was once the eastern extent of Navajo territory. This northern section of the Rio Grande Valley is a domain of Pueblo Indians and Chicanos, as well as some white farmers and back-to-the-land hippie types. Chimayó is a Spanish rendering of the place’s Tewa Pueblo name, Tsi-Mayoh, or Good Obsidian. The Sanctuary of Chimayó, the town’s Catholic shrine that dates to Spanish colonial times, is a point of pilgrimage from across the Southwest. The very earth of the village is ritually consumed by pilgrims (in minute quantities), and thought to have curative powers.
Earl Tulley grew up on the Navajo reservation, and for many years worked in housing for the tribal government. Today he is a partner in Chimayó Hemp Enterprises, which is producing CBD products from hemp grown in the purportedly miraculous earth of the unincorporated village in Rio Arriba County, north of Santa Fe.
The associated CHE Farms, which last year switched from pear and apple orchards to hemp, and is providing CBD-rich cannabis bud for the new enterprise. “Last year, it produced 300,000 grams of flower from 1,200 plants on less than an acre,” Tulley tells Project CBD. “We made gummy bears, oils and pre-rolled smokables. This year we’re shooting for a million grams from three acres.”
He calls this impressive yield on the outdoor grow “beginners luck. We had no early frost.”
He also emphasizes the support for the local indigenous residents for the project. “Pueblo leaders do blessings on our lands,” he says. “We’re letting them know and respecting them.”
Tulley says he bought into the land 30 years ago, already with eye toward growing hemp. The plot is watered by an acequia, one of Chimayó’s traditional community-owned irrigation channels that date to Spanish times.
When I spoke with Tulley in the first days of November, harvest had just begun, following approval of the crop’s THC levels by the New Mexico Department of Agriculture. The state’s Democratic Gov. Michelle Lujan Grisham signed a hemp legalization bill in April 2019.
Tulley is one of three major co-owners of the enterprise, with Teresa Juárez, a Chicana farmer, and Daniel Shreck, an Anglo. “We’re actually doing the Green New Deal,” Shreck said in a YouTube video promoting the project, pointing to its reliance on community resources and indigenous technology.
Chimayó Hemp Enterprises has no storefront as of now, but is selling its products—including CBD dog biscuits—at farmers’ markets and flea markets on what Tulley calls a “flash mob” basis. In light of COVID-19, they are hoping to expand internet sales.
The company won “Best CBD Flower” and “Best Pre-roll” in this year’s Essie Awards, held in Albuquerque in February. The Essie Awards are New Mexico’s equivalent of California’s Emerald Cup, with all dispensaries in the state represented. It’s named in honor of Essie DeBonet, New Mexico’s first enrolled medical cannabis patient. “CHE was the smallest company,” Tulley says. “We beat out many multimillion-dollar companies for two of the three awards in the hemp category.”
The enterprise also employs local youth, on a coop basis—they earn a portion of the harvest to independently market as well as their wages. Six are employed year-round, with additional seasonal hires for trimming and packaging.
Hemp for the Navajo Nation?
Tulley hopes to see legal cannabis products become more available on the Navajo reservation, where he perceives a need for their analgesic and soothing properties. “We still have a lot of people with cancer from the uranium mines, and vets dealing with PTSD,” he says.
But he also believes a hemp economy could be socially salubrious for the reservation. “We had 56% unemployment on the Navajo reservation even before COVID,” he says. “A lot of people live on a barter economy—corn or squash or melons fire firewood. If farmers can get better return on hemp than corn, they can better provide for their families.”
In addition to CBD products, he says that hemp stalk can be used in adobe instead of straw for traditional dwellings.
Tulley emphasizes the pressing need for development on the reservation—now especially critical in light of COVID-19. “There are still families with no running water or indoor plumbing,” he says. “There are six clinics or hospitals for 28,000 square miles, and everyone for a 50-mile radius is gonna be going to that one nearest clinic.”
And he points to Article 7 of the 1868 Navajo Treaty, with provisions for encouraging settled agriculture on the reservation. “It just tells us to put seeds in the ground,” Tulley says. “It doesn’t tell us what we couldn’t grow.”
Yet Tulley acknowledges an ingrained cultural-conservative current as an obstacle to implementation of such ideas—and which he hopes can be overcome. “Domestic violence and criminal activity are the devil, not cannabis—contrary to what the evangelicals tell us,” he says. “Cannabis is medicine.”
Cherokee closing the circle
Indigenous nations across North America are weighing the hemp and cannabis options—and the attendant jurisdictional dilemmas.
The Cherokee Indian Cases that defined the limits of Native American sovereignty in US jurisprudence concerned conflicts with the state of Georgia. But today the principal branch of the Cherokee Nation is in Oklahoma—having been forcibly relocated there at the order of President Andrew Jackson in the 1838 Trail of Tears. This was, of course, in blatant violation of the sovereignty that the Supreme Court had recognized just years earlier.
And the Cherokee are, of course, still negotiating questions of sovereignty today. This January, Chief Chuck Hoskin Jr appointed a Cherokee Nation workgroup to study issues related to hemp and cannabis in the areas of commerce, health care and agriculture.
“As chief, I want well-informed policy, and the team we have assembled will be a great asset in that regard,” Hoskin told the Cherokee Phoenix. “I believe there are opportunities for Cherokee Nation, our businesses and our citizens to benefit from this emerging industry. But, we need to move forward carefully and responsibly and in absolute strict adherence to the law in order to ensure success and sustainability.”
The “Executive Work Group on Hemp, Cannabis and Related Opportunities” is expected to make recommendations on Cherokee Nation policies, and whether a cultivation plan should be pursued for the reservation in the foothills of the Ozark Mountains.
With the legalization of medical marijuana in Oklahoma in June 2018, the Cherokee Nation found itself facing some ambiguity. The tribal government opted to honor the state law within its own jurisdiction—but under federal laws that officially supersede those of the state on the reservation, cannabis remained illegal in all its forms. As the Cherokee Phoenix reported, the tribal government did issue new regulations, allowing those with state medical marijuana licenses to seek and retain employment with the Cherokee Nation.
Left behind by California cannabis boom
California led the way in normalization of cannabis with its ballot measure to legalize medical marijuana in 1996, and exactly 20 years later it voted to generally legalize an adult-use market. But the Golden State’s Native nations were completely overlooked in the text of 2016’s Proposition 64. That failure to engage was unfortunately seen again in Prop 64’s enabling legislation, the Medicinal & Adult-Use Cannabis Regulatory Safety Act (MAUCRSA), which took effect at the start of 2018—again, with no provision for Native Americans.
One tribe in San Diego County has staked its economic future to legal cannabis—and is standing up for its rights. The Iipay Nation of Santa Ysabel in the rural northeast of the county has opened a dispensary on the former site of a casino that closed in 2014. The Mountain Source Dispensary offers both bud and edibles, with an adjacent cultivation site operating as the Santa Ysabel Botanical Facility. The complex employs some 100, and a Santa Ysabel Tribal Cannabis Regulatory Agency has been established to oversee the new local industry.
Sacramento’s cannabis bureaucracy acknowledges that as sovereign nations, tribes can do whatever they want with cannabis on their reservations. “But they cannot operate in the licensed California market,” Alex Traverso, a representative of the California Bureau of Cannabis Control, told the San Diego Union-Tribune last year. That means no off-reservation sales, shipments or locations.
In the case of the Iipay Nation, the situation is further complicated by a 2017 San Diego County ordinance that bans cannabis cultivation in the unincorporated parts of the county. County authorities have equivocated on whether this applies to reservations. The newly formed California Native American Cannabis Association (C-NACA) prominently includes five of San Diego County’s 18 federally recognized tribes: the Campo, Los Coyotes, Sycuan and Manzanita as well as the Iipay of Santa Ysabel. All these are members of the Kumeyaay indigenous people of Southern California.
An effort on Capitol Hill to address the Native American cannabis question is the Tribal Marijuana Sovereignty Act, introduced last year by Rep. Don Young, an Alaska Republican.
Canadian First Nations stand up for cannabis
Cannabis is turning into a key issue testing the limits of sovereignty for what are officially known as First Nations in Canada. Since Canada legalized cannabis in 2018, the question has joined long-standing struggles over oil, mineral, timber and hydro-electric development on the traditional lands of First Nations.
Neither the new Cannabis Act nor the Indian Act, the principal law governing First Nations, address the question of cannabis in Canada’s Indigenous territories. Oversight is left to the provinces. But at least one First Nation has opened a cannabis outlet without provincial authorization, in a direct challenge to authorities.
This is the Muscowpetung First Nation on the prairie of Saskatchewan. Immediately after the Cannabis Act took effect in October 2018, they opened a cannabis retail outlet on their reserve—without provincial authorization. Officials have ever since been demanding its closure. So far, the Muscowpetung have prevailed.
The Muscowpetung passed their own Cannabis Act as the parliament in Ottawa passed the historic Canadian law. The retail outlet, dubbed Mino-Maskihki (“good medicine”), advertizes recreational and medicinal cannabis products. It is still operating today, in defiance of provincial authorities.
And if accommodations are not reached with provincial and federal regulators, more may be set to follow.
The Chiefs of Ontario issued a statement in June 2019 asserting that it is up to each First Nation to determine the status of cannabis in its territory, and to decide how it will be administered. The statement followed a motion passed at the 45th Annual All Ontario Chiefs Conference in Sault Ste. Marie, exerting control over all matters related to cannabis on First Nation lands.
Hydrocarbons, uranium and the new 'termination'
These questions are especially poignant at the moment due to the triple-deep crisis facing North America and the planet: global climate destabilization, punctuated by the COVID-19 pandemic, in turn punctuated by political polarization that now divides the Unites States more starkly than at any time since the Civil War.
Among the many outrages committed by the Trump administration is the “disestablishment” of a federally recognized Indian tribe—for the first time since the Termination Era. This is the Mashpee Wampanoag Tribe on Massachusetts’ Cape Cod—whose ancestors welcomed some of the first settlers to the Americas more than 300 years ago. The decision by the Interior Department stems from a legal challenge brought by nearby residents to the tribe’s plan to establish a casino on reservation lands newly acquired in 2015. A federal district judge in Massachusetts ruled in April 2016 that the new land acquisition violated the US Supreme Court’s 2009 ruling in Carcieri v. Salazar. In that case, concerning the Narragansett Indian Nation of Rhode Island, the high court found that the federal government lacked authority to acquire land and hold it in trust for tribes that were not recognized as “Indian tribes under federal jurisdiction” when the Indian Reorganization Act was enacted in 1934. The Mashpee Wampanoag were only federally recognized in 2007. Their bid to open a reservation casino only resulted in the federal government dissolving the reservation altogether.
But this was followed just months later by an historic Supreme Court decision recognizing indigenous sovereignty over much of a current-day state of Oklahoma. The high court ruled 5-4 on July 9 that a large portion of eastern Oklahoma, including the city of Tulsa, remains Native American territory. The case was brought by a Native American man who was convicted of sex crimes in Oklahoma state court. He argued that because he is a member of the Muscogee (Creek) Nation and the alleged crime took place on tribal land, he was not subject to the jurisdiction of the state courts. Instead, he claimed to be subject to the jurisdiction of the Creek Nation and federal authorities. In a decision written by conservative Trump-appointee Justice Neil Gorsuch, the court agreed, citing an 1866 treaty, which the majority found had not been legally abrogated by Congress.
There are issues at stake here far greater than who has jurisdiction in a criminal case. If this ruling is found to apply to the Fort Laramie Treaty with the Sioux, it could spell an end to longstanding corporate plans for mineral exploitation in South Dakota’s Black Hills.
The 1970s saw a “uranium rush” in the Black Hills, with Exxon and others acquiring new leases. In 1979, the US Court of Claims in Washington DC ruled the Lakota and other Sioux tribes were entitled to compensation for the Black Hills. The government appealed to the Supreme Court—which the following year found for the tribes in United States v. Sioux Nation of Indians. The decision resulted in a federal offer of $106 million. This was refused by the Sioux tribal governments. A 1987 tribal council resolution by the Oglala Sioux Tribe officially rejected monetary compensation for the Black Hills.
The new wave of mineral exploitation in the hills was never realized—largely due to a drop in uranium prices and bickering among Midwest states over control of the Missouri River, whose waters would be siphoned off to slurry minerals and feed coal-burning plants. The unresolved Lakota land claim is holding up resolution of the water squabble, as several Missouri tributaries originate in the Black Hills. The Pine Ridge tribal government refuses to cooperate with US Bureau of Reclamation efforts to apportion tribal rights to the Missouri’s waters until the Black Hills claim is settled.
The Navajo have been far more impacted by mineral exploitation. The Peabody Coal Company’s Black Mesa strip mine opened in 1970. Local Navajo dubbed it the “Angel of Death.” For a generation, an annual five million tons of coal slurry ran through the Black Mesa Pipeline, 273 miles to Southern California Edison’s 1,500-megawatt Mohave Generating Station near Laughlin, NV. The mine and the generating station were both shut down in 2005—leaving a toxic legacy along the pipeline route. In its 35 years of operation, the 103-square-mile Black Mesa mine was the source of an estimated 325 million tons of climate pollution discharged into the atmosphere. Peabody’s Kayenta Mine, also on the reservation, continued to supply approximately 7.5 million tons of low-sulfur thermal coal annually to the Navajo Generating Station near Page, Ariz. The power plant, run by Arizona’s Salt River Project utility, and Kayenta facility were both shut down in November 2019.
The Navajo Mine, now owned by the tribal government, continues even today to supply the Four Corners Power Plant near Farmington, NM. In July 2015, the US Environmental Protection Agency agreed to extend the lease on the Four Corners plant by 25 years, and allow an expansion of the mine. This came less than a month after operators of the plant (chiefly Arizona Public Service) agreed to settle a lawsuit by federal officials and environmental groups that claimed plant emissions violated the Clean Air Act. Under the settlement, operators agreed to spend up to $160 million on equipment to reduce harmful emissions, and to set aside millions more for health and environmental programs. But many locals were not appeased. “Our Mother Earth is being ruined,” Mary Lane, president of the Forgotten People, a grassroots Navajo organization, told reporters. “We don't want the power plant to go on. It's ruining all the environment, the air, the water.”
Ominously, October 2014 saw federal SWAT team raids—backed up with helicopters and drones—to enforce limits on sheep grazing by traditional Navajos in the Black Mesa area. Homes were reportedly invaded and families held at rifle-point. The BIA said that some 50 residents had exceeded their limit of 28 sheep per household, supposedly a measure against over-grazing. The operation was jointly carried out by BIA agents Hopi rangers—pointing to how the two neighboring tribes have been pitted against each other.
The Hopi Tribe has a reservation that lies within the larger Navajo reservation, and the raids took place in the so-called “Hopi Partitioned Lands” on Black Mesa, from which many Navajo families have been forcibly relocated over the past generation. This was formerly part of a “Joint Use Area” established to be shared among Hopi and Navajo under the 1882 treaty creating the Hopi reservation. The relocation was mandated by the 1974 Navajo & Hopi Settlement Act, passed by Congress to resolve a “Hopi-Navajo land dispute” that many on the two adjacent reservations saw as contrived by mineral interests.
The Hopi and Navajo tribal governments both cut deals with the oil and mining companies, and vied with each other for the spoils. But in the 1970s, Peabody sought to expand into the Big Mountain area of Black Mesa, within the Joint Use Area. Big Mountain was a sacred site for the traditional Navajos living in the area. Peabody lobbyists sold Congress on a supposed Hopi-Navajo “range war” to push through legislation for forcibly removing the Navajo from one half of what had up to then been the Joint Use Area, and turning it over to the Hopi Tribe. So-called “New Lands” were set aside for the 10,000 relocated Navajo on the banks of the Rio Puerco, southeast of Black Mesa, near Sanders, Ariz. But these New Lands are contaminated by radioactive mine waste, from when a tailings containment dam burst at an upstream uranium mill in 1979. Just a few elderly Navajo remain on the land at Big Mountain.
These are just a few examples of the matrix of oppression that has been a hidden cost of the rise of the United States as the greatest global power.
Now that the vast industrial apparatus built on resources plundered from indigenous lands is starting to fail, these same indigenous communities may point ways out of the crisis—back toward sustainability and resilience.
Hemp for sovereignty —and survival
In September, Winona LaDuke spoke in an online “Teach-In on Food & Water Justice.” In the presentation, she discussed a choice that was made a century ago to switch from a “carbohydrate economy” to a “hydrocarbon economy”—from one based on food and fiber crops grown in the earth, such as hemp, to one based on fossil fuels extracted from the earth. “We made the wrong choice,” she said. But now Native American peoples are well situated to lead the transition back.
For starters, indigenous peoples worldwide find themselves the guardians of genetic diversity, precisely because their lands were left behind by modernization. “A lot of our tribes have feral varieties of hemp left over from the eradication programs—somehow they didn’t get to us,” she said.
Turning to corn, she notes that multinationals like Monsanto are developing “climate-smart varieties” designed to increase yields in hotter, drier climates—but priced for agribusiness and still dependent on petrochemical fertilizers. “Meanwhile, indigenous nations worldwide are adapting our pre-petroleum varieties to the times ahead.”
LaDuke cites the notion, recently articulated by the South Asian writer Arundhati Roy, of the “pandemic as portal” to a new economy.
“What you want in the time of COVID and the time of crisis is to figure out how we’re going to survive. This is really a small snapshot of what the future in a climate change-challenged world will be—and it is our opportunity to be smart and not to try to go back to normal... Crisis is opportunity. Let’s rebuild local food systems, because the big food systems aren’t going to work. Let’s go organic, let’s get climate-resilient...”
Speaking calmly into the camera from White Earth, she summed up the essence of this year’s surreal-seeming headlines.
“Systems are crashing. Idols are falling. Fossil fuels are failing. Now would be the time to walk through that portal and to make that new economy... Let’s get local. Let’s get renewable energy. Let’s grow local foods. Let’s grow some hemp. And let’s use our indigenous knowledge of transition...
“This is our time. It’s time to walk through that portal, walk down that pathway and create that good life again. The New Green Revolution is here.”
Image: Malcolm MacKinnon
Recent comments
2 weeks 5 days ago
3 weeks 5 days ago
3 weeks 6 days ago
5 weeks 1 day ago
10 weeks 2 days ago
12 weeks 5 days ago
17 weeks 6 days ago
29 weeks 5 days ago
31 weeks 6 days ago
32 weeks 6 days ago