In May 2015, the Menominee Indian Tribe of Wisconsin Tribe legalized the growing of low THC non-psychotropic industrial hemp by Tribal licensees on its lands. Notice of this change in Tribal law was provided to the United States Attorney Office for the Eastern District of Wisconsin. This action was intended to comply with Congress’s actions in 2014 Farm Bill which recognizing a distinction between marijuana and industrial hemp that created an exception to the Controlled Substance Act to allow for growth, cultivation and the study of industrial hemp in certain circumstances. The Tribe’s industrial hemp crop was always intended to be a legal crop as allowed by the 2014 Farm Bill.
In response the federal actions, Chairman Besaw stated the following:
“I am deeply disappointed that the 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. 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 the 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 the spring of 2015, the Tribe, acting under an agreement with College of the Menominee Nation (an “Institution of Higher Education” allowed to conduct industrial hemp research under the 2014 Farm Bill) planted an industrial hemp crop on Tribal lands. The State of Wisconsin has no jurisdiction over Tribal activities on these lands.
The Tribe has been transparent with the U.S. Attorney’s Office throughout this process. The Tribe engaged in numerous face-to-face consultations with former U.S. Attorney Jim Santelle and current Acting U.S. Attorney Greg Haanstad about this industrial hemp crop and the Tribe’s intention to grow the crop legally under the 2014 Farm Bill. The Tribe invited Federal Law Enforcement to observe and to test the industrial hemp crop at various stages throughout the process. In fact, Bureau of Indian Affairs Agents drew samples of the industrial hemp crop for final testing during harvest early this week.
There has been disagreement between the Tribe and Acting U.S. Attorney Greg Haanstad, as to whether the Tribe’s actions in cultivating its industrial hemp crop was in compliance with the 2014 Farm Bill. The Tribe has worked tirelessly to find a solution to this disagreement, including offering to destroy itself certain strains of the industrial hemp crop that both sides had identified as problematic and offering to file a Declaratory Judgment Action in United States District Court for the Eastern District of Wisconsin to allow a federal judge to decide the disputed issues. These offers by the Tribe were rejected in favor of the aggressive unilateral action we saw today. In light of the actions by the Department of Justice today, the Tribe now has no choice but to move forward with litigation to settle the question of its ability to grow industrial hemp under the 2014 Farm Bill.
Disagreement over the Tribe’s compliance with the 2014 Farm Bill alone does not justify the Department of Justice’s actions here. Department of Justice policy, in the form of the 2014 Cole Memorandum and the 2014 Wilkinson Memorandum, strongly discourage U.S. Attorneys and federal law enforcement agencies from enforcing federal cannabis laws in jurisdictions, including Tribal jurisdictions, that have legalized cannabis as long certain priority factors (“the Cole Factors”) are not implicated. There are no Cole Factors impacted by the Tribe’s industrial hemp program and, as such, the U.S. Attorney’s Office should not be using scarce federal law enforcement resources in this manner.
Tim Purdon, Partner at Robins Kaplan LLP, former United States Attorney for North Dakota, former Chair of then-Attorney General Eric Holder’s Native American Issues Subcommittee, and a lawyer for the Menominee Indian Tribe of Wisconsin said, “The actions by the federal government here are very troubling. The issue here is not the more controversial one of recreational marijuana — like the kind being sold from store fronts in Denver and Seattle. Nor even is it medical cannabis that is being prescribed and consumed in dozens of States. We are talking about industrial hemp and a crop that was legalized by the Menominee Indian Tribe of Wisconsin, was being grown on Tribal lands for research purposes under an agreement with College of the Menominee Nation and was always intended to be a legal crop under the 2014 Farm Bill.”
Purdon added, “Today DEA Agents in eastern Wisconsin are not investigating the distribution of heroin and prescription drugs that are causing an overdose epidemic across the country. Today BIA Agents have been flown in to eastern Wisconsin, and they are not on their assigned Reservations investigating the rampant methamphetamine and prescription abuse that plagues Indian Country. Rather, today these Agents are preoccupied with the destruction of an industrial hemp crop that was intended to be planted and harvested legally under the 2014 Farm Bill. The waste of resources is exacerbated by the fact that the Tribe had agreed to act itself to destroy individual strains of the hemp crop that the Tribe and the U.S. Attorney’s Office agreed were problematic. This misallocation of federal resources is exactly what the Cole and Wilkinson Memos were designed to prevent.”
Chairman Besaw stated:
“What makes the actions taken today even more difficult to understand is that the federal government is very aware of the great unmet needs of Menominee. Menominee County ranks at the bottom of the state in poverty and health statistics. The Tribe is trying to meet these needs by researching the potential economic opportunities of industrial hemp just as Congress intended when passing the Farm Bill.”
According to Vote Hemp, a non-profit organization dedicated to the acceptance of and free market for industrial hemp, to-date, 23 states have defined non-drug industrial hemp as distinct from marijuana and have taken steps to remove barriers to the production of industrial hemp. Industrial hemp crops are currently being grown, without DOJ interference, in at least Kentucky and Colorado.