The Flandreau Santee Sioux Tribe’s dream of an “adult playground” was put on hold last year as pressure from South Dakota’s Attorney General Marty Jackley and well-founded fears of a federal raid caused the tribe to put millions of dollars worth of cannabis to the torch a month before the nation’s first proposed cannabis resort was to launch on New Year’s Eve.
“Pausing production was a step in the right direction,” said Attorney General Marty Jackley, according to the Moody County Enterprise. “I think it’s the best thing for tribal and non-tribal members that the tribe makes this a more permanent decision, and we find other ways that will help the tribe financially. There are other opportunities that don’t create some of these legal challenges.”
Now, Jackley is going after the two Coloradan men who were consulting the tribe, charging them with felony drug possession and creating new legal precedents that could drastically affect the fledgeling cannabis industry.
This is the first time charges have been brought against out-of-state consultants who have assisted tribes with their operations. It also marks the first time that attornies have gone after how the cannabis seeds arrived at the destination where they were grown, an issue states that legalized cannabis have so far ignored.
“This is a troubling development,” said Chris Lindsey, a legal analyst with the Marijuana Policy Project (MPP). “This is something we’ll be watching.”
While the consultants, CEO Eric Hagen and Vice President Jonathan Hunt of Monarch America, claimed they were compliant with the law by being on Flandreau land where cannabis is legal, Attorney General Jackley disagreed.
“What I’ve always said is that there needs to be respect in South Dakota for federal law, state law and tribal sovereignty,” Jackley said. “In relation to the tribal ordinances that were passed, the tribe has jurisdiction over enrolled members of a federally recognized tribe.”
The two white guys from Colorado, it turns out, were not members of the tribe. While Hunt pled guilty to a drug conspiracy count, Hagen pled not guilty, his lawyer saying outside of court that Jackley was proceeding under a “legal fiction.”
Still, the fiction is all too real in the state with possibly the harshest drug laws in the country. South Dakota may be the only state to have an “internal possession” law, meaning those who smoke or ingest cannabis in a state or reservation where it is legal could still find themselves being arrested for possession if a blood or urine sample is positive in South Dakota, where it’s illegal. Being found in possession, internal or external, could mean anywhere from one year in prison and a $2,000 fine for any amount, to 15 years in prison and a $30,000 fine for larger amounts. Possession of hash or concentrates is even worse, with an automatic felony and up to 10 years in prison and a $20,000 fine for those caught with even trace amounts.
While decriminalization seems unlikely anytime soon, a medical marijuana (MMJ) bill that would have legalized limited CBD-oil use for seizure patients made it through the Senate and House committee before being killed in the House 25 to 43. Though it’s no victory, the fact that it was even voted on was due to Sen. Angie Buhl O’Donnell (D-Sioux Falls) and co-sponsor Sen. Bruce Rampelberg (R-Rapid City) who revived an effort by New Approach South Dakota—that failed to gather enough signatures—by putting the language of the petition into Senate Bill 167.
"This issue came to us from a community of people dealing with severe health issues, particularly impacting kids,” Sen. Buhl O’Donnell said. And while it may be several years for any meaningful change, the groundwork is being laid for the next fight.
In the meantime, the interplay between state and federal governments is creating a lot of confusion, especially for tribes that mistakenly believed they were given a green light to grow cannabis.
“The federal government creating complex tribal laws and then making determinations if it is or isn’t going to enforce certain laws… has really created the problem,” Jackley said. “So I never blamed this on tribal authorities or the tribal jurisdiction. This whole problem rests in the hands of the federal government.”