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Tribes demand level field for hemp production

Oglala Lakota hemp legalization advocate Alex White Plume (right) peers out over his Pine Ridge Indian Reservation 2020 hemp crop, alongside a partner. COURTESY / Lance Martin

PINE RIDGE — Tribes across the country, embittered that federal rulemaking deprived them of a 2019 hemp growing season, are bracing for results of a comment period on legalization that ends Oct. 8.
“We are making final comments this week. We’ll have them by Wednesday,” Oglala Sioux Tribe Hemp Commission Executive Director Scott Weston told the Native Sun News Today.
Congress authorized commercial hemp production two years ago, removing the crop from the controlled substance list in the 2018 Farm Bill and directing the Agricultural Marketing Service of the U.S. Department of Agriculture (USDA) to cooperate with the Justice Department’s Drug Enforcement Administration to establish the details of regulations.
“We’re supportive of any measures that will help our growers,” Oglala Sioux Tribe Lead In-House Counsel Jennifer Bear Eagle said. “Our comments really are looking to give more flexibility to tribes and to come up with our own rules and regulations,” she told the Native Sun News Today.
The Oglala Sioux Tribe, like many others, has adopted its own regulations on licensing for people who want to grow hemp. The USDA, in turn, is supposed to approve tribal programs for the product.
Hemp is a versatile commodity that is ideal for a plethora of purposes, including resins, fabric, rope, paper, construction materials, fuel, food, cosmetics, and health aids such as cannabidiol or CBD.
Hemp goes by the Latin taxonomy of Cannabis sativa, just like marijuana, but the two are genetically distinct forms of the species, a fact the federal government refused to recognize for 72 years, until the 2018 Farm Bill amended the Agricultural Marketing Act of 1946, making growth and possession of hemp and hemp seeds legal now for the first time in a generation.
The amendment also declares, “No state or Indian tribe shall prohibit the transportation or shipment of hemp or hemp products….”
The Flandreau Santee Sioux Tribe was the first of the 574 federally recognized tribal governments to institute commercial licensing to grow the crop. It sued Secretary Sonny Perdue and his Agriculture Department for failing to act on its federal approval request. The tribe asked the court to declare itself in favor of pursuing the hemp plan.
“The Secretary’s failure to act on the tribe’s plan, or acknowledge that the tribe can proceed under the authorities of the Agricultural Marketing Act, is today threatening the tribe with a loss of jobs, income for irreplaceable tribal services like timely police protection, timely delivery of health care services, burial assistance, timely delivery of food and nutrition for families, and other essential governmental functions,” Flandreau Santee Sioux Tribe Attorney General Seth Pearman stated in the May 23, 2019 complaint.
The Secretary’s inaction prohibited the tribe and other “economically deprived tribes” from entering the hemp market during the 2019 growing season, Pearman said. “This puts them at a distinct economic disadvantage to the non-Indian growers in approximately 41 states who are today cultivating and preparing to market their hemp products.”
South Dakota Southern District U.S. District Judge Karen E. Shreier responded with an order to deny the tribe’s request, because granting it would upset the status quo.
On Jan. 29, 2020, the Flandreau Santee Sioux Tribe filed testimony in the first of two rounds of tribal comment opened for the U.S. Domestic Hemp Production Program’s Interim Final Rule proposed in late 2019.
The rule undermines Congress’ intent to allow tribal and state government’s ample leeway in initiating hemp governance, according to the tribe.
“It does this by: (1) adding new unnecessary and overly burdensome conditions to many stated requirements, (2) imposing requirements which are almost impossible to meet, (3) adding requirements which increase the risk to hemp cultivators, and (4) inserting requirements that add substantially to the cost of production,” Pearman submitted.
His objection was similar to that of thousands of state, tribal and individual comments made in the process.
Patty Marks, a member of the tribe’s legal team, explained that the maximum limit of 0.3-percent delta-9 tetrahydrocannabinol (THC) that the Drug Enforcement Administration proposed to define hemp fails to recognize a massive body of scientific findings that establish small higher variances in percentage in a crop are within the bounds of non-psychotropic effects.
The measure of THC composition being used in the regulations is “very conservative and doesn’t allow for differentiation,” she told the Native Sun News Today.
Like corn and tomato crops, hemp crops can vary considerably from one case to another, she said: It’s like the difference between livestock feed corn and sweet corn, or the difference between slicer tomato and paste tomato varieties.
The DEA wants to make things “as difficult as humanly possible” for tribes to grow hemp, and tribes just need “practical” provisions to manage the industry, she said.
The Flandreau Santee Sioux Tribe noted: “Because this 0.3-percent standard is unnecessarily low, it is, and will continue to present serious problems for growers who cannot control the amount of sunlight or other natural factors, which can increase the THC content in hemp grown from perfectly legal hemp seeds.”
The tribe recommended: “For this reason, the tribe encourages the USDA to join it in encouraging the Congress to increase the THC cap in its definition of hemp to 1 percent or less.”
The Yurok Tribe, the largest in California, championed another common complaint in its comments on the Interim Final Rules:

“Requiring the use of DEA-accredited labs is wholly unworkable,” Yurok Tribal Chair Joseph L. James said in the comment letter addressing the proposed THC level testing procedures. Such labs already have backlogs months’ long and are not located in Indian jurisdiction, he commented.
A proposed 15-day minimum period between harvesting and test results also is not practical due lab backlogs and to weather fluctuations affecting crops, he noted.
The Mountain Ute Tribe commented, “With no crop insurance being available for hemp lots that test hot, Native American and tribal farmers will be disproportionately destroyed by this rule.”
It explained: “Native American farms tend to be significantly smaller, tend to only grow a single crop, tend to be family run, and they operate with very small margins. Only big tobacco companies and big agricultural monopolies will have enough acreage and enough separate lots to be able to absorb the total loss of a crop lot,” it said.
“The USDA’s job is to empower small family farmers, and the USDA has a unique trust and treaty obligation to Native American farmers,” the tribe concluded.
The Ft. Belknap Indian Community added its voice to many, saying, “The USDA’s requirement of complete destruction of every plant in a lot that tests above the acceptable hemp THC level … is (a) not required by the statute, (b) technologically unnecessary, (c) culturally offensive in its wastefulness, and (d) disproportionately economically disastrous for our small Native American farmers.”
The Ft. Belknap government, overseeing the homeland to the Gros Ventre (Aaniiih) and the Assiniboine (Nakoda) Tribes, located 40 miles south of the Canadian border and 20 miles north of the Missouri River, reminded the Administration:
“In analyzing sovereignty in a tribal commerce and regulatory context, the Supreme Court has held that tribal governments retain all inherent rights which have not been explicitly abrogated by Congress, including in the area of tribal trade, business, and economic development.”
Before USDA Tribal Hemp Consultation in December 2019, tribal leaders met to prepare. They expressed concern regarding potential seizures by state law enforcement, based on experience with aggressive anti-tribal jurisdiction behavior. States in which hemp has not yet been legalized, such as Idaho and South Dakota, were singled out as anticipated flash points.
“Here in Montana, we have Idaho bordering us on the west, and South Dakota bordering us on our east,” Ft. Belknap noted.
Tribal leaders in Maine, California, New York, and Wisconsin expressed similar concern. “Unless the USDA is very clear about the transportation issues, these states will push the boundaries as far as they can and harm tribal economies and Native farmers,” Ft. Belknap said, adding, “They will seize loads “until things are cleared up,’ resulting in significant economic losses.”
It recommended USDA create a standard shipping form or stamp so “a state cannot interfere with inter-state transportation” yet a local law enforcement officer will have “wiggle room to detain loads while they themselves confirm a load’s legal status.

(Contact Talli Nauman at

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