A Minnesota judge’s order earlier this month upheld the state’s authority to prosecute cannabis-related crimes on tribal lands, raising questions about Indigenous sovereignty and the efficacy of “social equity” provisions in state-level cannabis laws.
Todd Thompson – a member of the White Earth Band of the Chippewa Tribe, began selling cannabis from his licensed tobacco shop on the White Earth reservation on 1 August 2023 – the same day Minnesota passed a law permitting adult-use recreational cannabis. Thompson says the first day went well, but on the second day, the store and his home were both raided by Mahnomen county sheriff’s deputies and White Earth tribal police, who seized all of Thompson’s cannabis as well as $2,748 in cash.
“When they raided my home, they took my sacred items, my sage bowl, tipped it upside down on my bed, white bed sheets. And they took my feather and put it on the floor,” said Thompson.
Thompson believes Article 13 of the constitution of the Minnesota Chippewa Tribe gives him the right to sell cannabis. It states: “All members of the Minnesota Chippewa Tribe shall be accorded by the governing body equal rights, equal protection, and equal opportunities to participate in the economic resources and activities of the Tribe, and no member shall be denied any of the constitutional rights or guarantees enjoyed by other citizens of the United States.”
At first, he says he was “very optimistic” about the legality of his operation, especially because other White Earth Band members were planning to open a recreational dispensary. He’s been frustrated by news coverage that omits this.
“They make it sound like I’m just a renegade Indian breaking the law. That’s not the facts. Under our constitution, I should have the same rights as [the dispensary owners],” he said.
It appears nearly impossible for someone who isn’t already wealthy to open a dispensary that meets state regulatory requirements. Cannabis’s federal status as an illegal narcotic means most banks will not provide loans for a cannabis business. Notably, the poverty rate on the White Earth reservation is double the national average, according to the most recent census.
In contrast, former and current members of the executive team at White Earth’s first licensed dispensary have experience with private equity and making multimillion-dollar corporate deals, and have spent the bulk of their careers outside the reservation.
Minnesota’s recreational cannabis law includes social equity provisions intended to give preference to vulnerable people, as well as those with past cannabis convictions, to receive dispensary licenses. Thompson has not benefited from those provisions, and might ironically become one of the many Indigenous people convicted of a cannabis-related crime.
Cat Packer, director of drug markets and legal regulation at Drug Policy Action, says cases like Thompson’s show the importance of giving marginalized communities “pathways towards legal economic opportunities in the regulated cannabis industry”, adding: “Without a license, in a regulated framework, criminalization continues, and it’s likely that those communities that were historically discriminated against will continue to be.”
In December, Thompson filed a motion to dismiss the case, arguing that the state of Minnesota does not have the authority to prosecute cannabis offenses on reservation land, because after the state legalized adult recreational use, related infractions became civil matters. Public Law 280 gives tribal authorities jurisdiction over civil infractions, while state and federal authorities have jurisdiction over criminal cases.
In his order denying the motion to dismiss, district judge Seamus P Duffy cited past cases where marijuana possession had been considered “clearly criminal” in the state of Minnesota, in order to argue that Thompson’s case is also criminal. But those past cases happened when recreational cannabis was still illegal in the state.
The case is further complicated by White Earth tribal police participation in Thompson’s arrest, raising questions over whether tribal leadership should be able to cede authority to the state. At the time that Thompson’s shop was raided, the White Earth Nation reservation business committee had not yet ratified its own recreational cannabis code.
The White Earth reservation business committee did not respond to the Guardian’s request for comment.
Robert Pero, founder and CEO of the Indigenous Cannabis Industry Association, said the order “highlights the ongoing complexities of jurisdiction, self-regulation and sovereignty in the Indigenous cannabis industry”. For his part, Thompson believes White Earth’s reservation business committee has unjustly shut off economic opportunities in the cannabis sector for band members.
“Concerns about White Earth’s leadership reflect a broader issue – tribal governments must ensure transparency and prioritize the wellbeing of their people,” Pero said, adding that tribal governments are often pulled in many directions when attempting to retain sovereignty and comply with state and federal law.
Claire Glenn, the attorney who represented Thompson in the case, connects the defeat to the “war on drugs” in Minnesota, which has “particularly targeted Black and Indigenous people”.
She added that legislation decriminalizing cannabis in Minnesota was meant not only to “undo that system, but to redress some of those harms”.
Thompson says he’s not surprised at the result: “Racism is alive and well in Indian Country. It’s very hard for Native people up here to find justice in any of these courts.”
