On Tuesday, the Oglala Sioux Tribe overwhelmingly voted to legalize marijuana for recreational and medicinal use on the Pine Ridge Reservation in South Dakota. As Chase Iron Eyes, a spokesman for President Julian Bear Runner, told the Associated Press earlier this week, the move is an effort to exercise sovereignty in order to bring much-needed financial relief to the tribe. “We need an internal, regenerative, self-sustaining solution,” he said. That solution is weed.
What the Lakota nation is attempting will be tricky politically, but not entirely lacking in precedent. Gaming operations like casinos and natural resource extraction have long defined the American public’s understanding of Indian Country’s financial foundation, but hemp and marijuana production is poised to join them. Other tribal nations, like the Squamish Tribe in Washington State and the Las Vegas Paiutes in Nevada, have been operating their own dispensaries and cannabis lounges for years. “We laughed at first about it. Like, ‘Oh crap, we’re going to be weed dealers?’” Benny Tso, a former tribal council chair of the Paiutes, told The Guardian last year. “After we got the jokes aside, we started digging into the numbers. It was just a different way to generate revenue for the tribe when we realized we needed to do something to put our people in better situations.” The funds generated by marijuana sales by tribal businesses in those states have proven, at least for the moment, to be cash cows relative to the initial investments made by tribal nations. So much so that Cherokee Nation President Chuck Hoskin Jr. commissioned a working panel in January to look into the industry.
This could also prove to be the case for the Oglala Sioux Tribe. But unlike the nations located in Washington and Nevada, where cannabis has been legalized since 2012 and 2016 respectively, Pine Ridge is surrounded by a red state, where it’s not. And last year, Republican Governor Kristi Noem vetoed a bill passed by a Republican-held state legislature that would have legalized industrialized hemp—a variety of the cannabis plant that does not cause a high when ingested. Noem said she feared that hemp would “be opening the door to allowing marijuana to be legalized.”
There is a limit to how much Noem and the state can directly interfere with the Oglala’s potential operations, as state and county law enforcement do not have jurisdiction in any of the nine reservations in the state. What’s more, the entire quandary could be proven moot by next winter, as people in South Dakota are voting in November on a proposed constitutional amendment to legalize recreational marijuana.
Until then, the biggest unknown is the question of how the Trump administration’s Department of Justice will respond to the Oglala Sioux’s plans. Marijuana is still classified as a Schedule I drug alongside heroin under federal law. But with the past decade of state-led pushes to legalize, there’s a limit to what the attorney general can effectively do, and Bill Barr is no Jeff Sessions. Barr stated in his Senate confirmation hearing that though he would prefer a uniform federal law against marijuana, he believed, with 10 states having legalized it recreationally, federal law should be reformed so that the states are allowed to set their own laws without fear of federal repercussion. So as long as a business is complying with state law, it has nothing to worry about.
Several issues then arise in the political relationships that surround the tribe’s experiment. Noem and the Oglala nation are not on good terms, to say the least. Last year, the governor signed a pair of riot-boosting bills into law, both of which would have exposed future Keystone XL pipeline protesters to harsher charges and penalties. The bills were blocked by the courts, but not before Noem got herself banned from the Pine Ridge Reservation in a unanimous vote by the Oglala Sioux council. They, along with the state’s other tribes, also boycotted her administration’s State of the Tribes address and held one of their own to highlight that they felt they were not being heard, by Noem or many of the state’s legislators. All the while, Noem has continued championing a second version of the same riot-boosting legislation.
So while Noem has little power to directly intervene, she does have the ear of someone who could: President Trump. Noem initially did not support Trump’s candidacy in 2016, calling some of his statements “un-American,” and instead backing notable car vlogger Marco Rubio. But she, like most of her party, came around by the general election and even scored Trump’s endorsement in her successful 2018 run for governor. Noem has since gone to bat for him during impeachment, bent his ear on deregulation, and thanked him for the trade deal with China. (Noem’s office did not respond to The New Republic’s request for comment.)
In 2014, the Obama Justice Department issued what’s known as the Wilkinson memo, which outlined how tribal marijuana operations would be treated the same as those acting under state auspices, insinuating a laissez-faire approach unless they ran too far afoul of eight outlined “federal law enforcement priorities.” The Flandreau Santee Sioux Tribe, also located in South Dakota, was among the first to test the department’s leniency when it moved forward with plans to convert its Royal River Family Entertainment Center into a cannabis lounge later that year. But in 2015, the tribe burned its crop and ate a multimillion-dollar loss due to fears of an impending raid by federal law enforcement. The South Dakota government was not content with the destruction of the crop, though. Eric Hagen, a non-Native consultant hired by the tribe to help them open and operate the lounge, was subsequently charged by the Republican state attorney general, Marty Jackley, on three counts of possession. Jackley told the press that he believed the lounge “would further create public health and safety issues across our state.” A jury cleared Hagen of all three charges after just a few hours of deliberations.
In President Obama’s initial term, a fear of raids like these was very real. In July 2015, the feds destroyed 12,000 cannabis plants being cultivated by the Pit River Tribes and the Alturas Indian Rancheria. That October, they did the same for 30,000 plants owned by the Menominee Tribe in Wisconsin. At the time, Robert Porter, an Indian Law expert and former president of the Seneca Nation, expressed concern that “the Justice Department guidelines are not being interpreted in the same way as they were intended.” The raids continued into Obama’s second term, with the Winnemucca Indian Colony of Nevada having their hemp crop destroyed by the Drug Enforcement Administration in 2017.
Although the raids on tribal and nontribal growers in legal states that occurred during the Obama years eventually slowed, federal law remains the same on marijuana, and Noem’s relationship with the president remains transactional. Which leaves all of this an open question.
The path forward for the Oglala Sioux will be one of sovereignty and resolve. It is every Indian Law discussion boiled down to its bare bones: If a state can make a decision to legalize weed without interference, why can’t a tribal nation? (And yes, there are taxes on the bud, depending on the compacts signed with the state. In the compacts that Washington signed with its neighboring tribal nations, the tribes agreed to at least match the excise tax on their product, but their sales taxes are able to dip below the state’s, offering them a slight advantage on the market.)
It’s hard to know what comes next, because guessing how conservative politicians will act is never a winning game. But it is worth marveling at what the Oglala Sioux Tribe is attempting. The tribe is taking its future into its own hands as a sovereign nation. The economic benefits are not weighed down by the short-term whims of oil and gas developers seeking to poison the land for profit. It is an honest solution to a problem caused by South Dakota leaders who purportedly pride themselves on their farming. Not only could it serve as a blueprint for other tribes in illegal states, but it has the possibility to make the tribe whole by its own hand. And as we’ve seen elsewhere, that kind of sovereignty opens a great many doors.