OST leads way on hemp protection

2018 Farm Bill language supersedes any state lawBy James Giago DaviesNative Sun News Correspondent

RAPID CITY— Because of the efforts of the Oglala Sioux Tribe (OST), every reservation in the country now has protection against state laws that would interfere with any tribal business connected to hemp.

Working with the staff of Republican Senator Mitch McConnell of Kentucky, and others, OST attorney Mario Gonzalez of Rapid City, with help from Washington, D,C., based tribal attorneys, Jennifer Hughes, and Patty Marks, were able to insert language into the 2018 Farm Bill that protects tribal interests and enterprises connected to hemp.

Hemp has a long history, dating back millennia, as a useful product, and its profit potential in the present, for any tribal business that involves itself in the planting of hemp, the production of seeds, the manufacture of hemp based products, and the extraction of hemp byproducts, could be worth hundreds of millions of dollars.

This window of opportunity will close in a couple of years, however. The reason for this can be traced back to pilot research programs allowed under Section 7606 of the 2014 Farm Act, five years ago.

In a NSNT article from 2016, Gonzalez pointed out that states were allowed “to establish pilot research programs to grow, cultivate and market industrial hemp,” but that “tribes were excluded from participating in this pilot research programs because they were not included in the definition of ‘state.’” The article pointed out that 27 states enacted pilot program legislation, including North Dakota, Montana and Nebraska, and that a pilot program bill introduced in the South Dakota legislature in 2016, failed to be passed into law.

Alex White Plume, a former president of the Oglala Sioux Tribe, led efforts to grow hemp in Indian Country. After he won a court victory in 2016 in favor for tribal sovereignty, he thanked "all the people who stayed with me when my morale wasn’t so great." Photo by Talli Nauman / Native Sun News Today

These pilot programs give these 27 states a leg up now that hemp has been allowed under the 2018 Farm Act. One tribe, the Menominee of Wisconsin, attempted an industrial hemp research program through its tribal college, reasoning the pilot program language of the 2014 Farm Act applied to tribes as well as states. This attempt ended with the DEA raiding and destroying the Tribe’s hemp crop. The Tribe sued in federal court, and lost.

“Cannabis plants have been outlawed in the U.S. since the passage of the Marihuana Tax Act of 1937,” Gonzalez said, “and subsequently included in the Federal Controlled Substances Act of 1970, as amended. The plant can be classified into two categories, marijuana and hemp. Marijuana has high concentrations of THC that gives people a high. Marijuana has been allowed in some states for medical and recreation use, but is still an illegal controlled substance under federal law. Although hemp has a low THC content, it was outlawed along with marijuana under the federal controlled substances Act, because the Act has outlawed all cannabis, no matter how much THC it contains.”

Popular resistance to marijuana was predicated on the belief marijuana was, at worst, a dangerous hallucinogen, and, at best, a gateway drug to worse addictions, like meth and heroin. But regardless of how justified the concern over marijuana has been, uncoupling that unjustified connection to hemp, has proven difficult, as in it has taken 81 years to accomplish it legally.

More to the point, South Dakota, shows no signs of accepting the new federal guidelines for hemp, as a 2017 state law has outlawed use of CBD oil derived from hemp, except those following strict current FDA guidelines, and the attorney general’s office has said they will still be illegal regardless of any language in the 2018 Farm Bill legalizing CBD products. A spokesperson for Governor Kristi Noem has stated she will likely do nothing to challenge the South Dakota law.

Gonzalez foresaw a time when a tribal hemp business, attempting to transport product, could be stopped by South Dakota law enforcement, once the product left the reservation, and the product confiscated, perhaps even tribal members, prosecuted. Sitting in his Seventh Street offices in Rapid City, Gonzalez typed up the protective language he thought necessary to prevent that day from ever happening, language unambiguous and comprehensive enough to protect every tribe anywhere in the country from any state law.

On April 12, 2018, McConnell introduced S.2667, authorizing state and Indian tribes to grow hemp. S.2667 was included verbatim as Section 10111 of the 2018 Farm Act. Gonzalez told NSNT: “I was concerned that since South Dakota did not adopt a pilot research program under the 2014 Farm Act, it would continue to treat hemp as a controlled drug and substance after passage of the 2018 Farm Act; that state law enforcement would start arresting tribal hemp farmers when they transported their hemp biomass or hemp products across reservation boundary lines into the state.”

Working with the staff of Senator Ron Wyden (D-OR), and Congressman Mike Conaway (R-TX), Gonzalez and Hughes, got new Subsection 10114 (b) inserted in the 2018 Farm Act that reads as follows: “No state or Indian tribe shall prohibit the transportation or shipment of hemp or hemp products in accordance with . . . Section 10113[] through the State or the territory of the Indian Tribe, as applicable.”

The December 12, 2018 House and Senate Final Conference Report also described Section 10114 as follows: “Sec. 10114 – Interstate Commerce [Hemp] -- “No State (or Tribe) can prohibit the transportation or shipment through its territory of hemp or hemp products produced in accordance with an approved Tribal or State Plan.” A December 27, 2018 article by Kristi Wolff, in Food & Drug Law Access, stated that Section 10114 (b) would “clearly preempt any state law prohibiting shipment of industrial hemp through a State or territory of an Indian Tribe.”

In a January 14, 2018, report to the Oglala Sioux Tribal Council, Hughes stated that “The Oglala Sioux Tribe was instrumental in ensuring that the Farm Bill’s hemp provisions clearly allow tribes to transport hemp and hemp products off tribal lands and into interstate commerce despite state controlled substances acts that may treat hemp differently,” and on January 19, 2019, Hughes stated in a report to the Oglala Sioux Tribal Council that, “The Oglala Sioux Tribe was the driving force behind the language in the hemp provisions to clearly allow tribes to transport hemp and hemp products off tribal lands and into interstate commerce despite state-controlled substances acts that may treat hemp differently. This was a big victory.”

James Giago Davies is an enrolled member of the Oglala Lakota Tribe. He can be reached at skindiesel@msn.com

Copyright permission Native Sun News Today

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