Paul Srubas

USA TODAY NETWORK-Wisconsin

Suit seeks clarification over whether tribe has legal right to grow hemp

Government drug enforcement agencies seek dismissal

Tribe's hemp fields, drying operations were raided this fall

A federal judge has been asked to throw out a case the Menominee Indian Tribe has filed over destruction of its hemp plants this fall.

The U.S. Drug Enforcement Administration and U.S. Department of Justice have asked U.S. District Judge William Griesbach to reject the tribe’s call for declaratory judgment.

The tribe has asked for a federal ruling that it has a legal right to grow industrial hemp as a research project. The federal Farm Bill allows cultivation of hemp as a research project by states and institutions of higher education, and the tribe is claiming it acted as a state and that the grow was done under the auspices of the College of Menominee Nation, an institution of higher education.

A counter motion by the DEA and DOJ say the federal court has no authority to issue a declaratory judgment in the case because that would be overriding congressional intent.

The counter motion also argues that the federal hemp regulations, which provide a narrow exception to its marijuana ban by permitting industrial hemp as a research project if allowed by the state, provides no definition of “state” to include Indian tribes. Absence of that definition should be taken to mean one of the 50 states, the counter motion argues.

The counter motion raises no argument about the status of the College of the Menominee Nation as being an institution of higher education.

Griesbach has given no indication when he might rule on the case. No hearing dates or brief schedules are on the calendar for the case in U.S. District Court in Green Bay.

The tribe is seeking federal clarification after a federal raid in October of the tribe’s hemp operation. Federal and state agents executed a search warrant and confiscated thousands of plants. Agents claim the hemp contained prohibited concentrations of THC, the active ingredient in marijuana, which is related to hemp.

According to the federal warrant, at least some of the tribe’s hemp plants exceeded the 0.3 percent THC level that marks the legal difference between hemp and marijuana. Tribal officials argue that, while that level is so low it would make the plant worthless as a recreational drug, the tribe has an ordinance requiring the destruction of any plant hitting that level.

The tribe said it was growing the plants and wants to continue doing so for research. Despite its legal issues, the plant has potential for textiles, body-care and building material products, and the tribe wants to explore how it could possibly use it as a way to build its struggling economy, tribal officials have said.

The tribe has made no decision about whether to sue over the destruction of some 30,000 plants this fall, but the current legal action simply seeks a clarification over whether tribe has the legal right to grow the plant, tribal officials claim.

psrubas@pressgazettemedia.com and follow him on Twitter @PGpaulsrubas