Eighth Circuit Upholds Conviction of Sioux Indians Who Grew Industrial Hemp on Federal Trust Land

Sioux Indian men who grew industrial hemp on federal trust land were validily convicted under federal law despite a Tribal Penal Code section that permitted their activities, the Eighth Circuit ruled today in U.S. v. Plume (No. 05-1564). The men, Alex and Percy White Plume, did not obtain a DEA certificate to grow the hemp. The court held:

• That industrial hemp is covered under the Controlled Substances Act language regulating marijuana, even if it contains only trace amounts of THC.

• That an 1868 treaty between the tribe and the U.S. did not give the White Plumes the right to farm hemp: "Regardless of the historical accuracy of the assertion that the federal government encouraged hemp growing when the Treaty was signed, the plain language of the treaty merely refers to 'farming'–it mentions nothing about farming hemp" (emphasis in original).

• That the right to grow hemp is not a fundamental right for purposes of due process analysis.

In an echo of the Supreme Court's conclusion in Gonzales v. Raich, the court suggested that the democratic process was the appropriate place to look for relief:

We are not unmindful of the challenges faced by members of the Tribe to engage in sustainable farming on federal trust lands. It may be that the growing of hemp for industrial uses is the most viable agricultural commodity for that region. And we do not doubt that there are a countless number of beneficial products which utilize hemp in some fashion. Nor do we ignore the burdens imposed by a DEA registration necessary to grow hemp legally, such as the security measures required by the regulations. See 21 C.F.R. §§ 1301 et seq. But these are policy arguments better suited for the congressional hearing room than the courtroom. Today we fulfill our role to interpret and apply the statute as written by Congress, and affirm the district court.