- Details
- By Chez Oxendine
- Policy and Law
On Wednesday, the Minnesota Court of Appeals heard oral arguments in State of Minnesota v. Todd Jeremy Thompson, a case that could affect how a longstanding public law applies to cannabis in Indian Country.
Thompson, a member of the White Earth Band of Ojibwe, was charged in Mahnomen County with first-degree possession of cannabis with intent to sell after state agents and tribal police raided his smoke shop. Thompson has since moved to dismiss the charge, with his counsel arguing that Minnesota's legalization of recreational marijuana — enacted just one day before the raid — made the issue civil, not criminal. Also, treaties with the state’s federally recognized tribes placed cannabis outside of criminal purview, Thompson’s legal counsel contends.
“I felt like I had the right to do what I did,” Thompson told Tribal Business News. “It is a medicine, and it's part of our treaty to be able to harvest and utilize it as a medicine.”
Thompson's defense hinges on the question of the state's jurisdiction over Thompson as a White Earth Band citizen. The state points to Public Law 280, a 1953 law that transferred certain jurisdictional powers over Native Americans from the federal government to six states, including Minnesota. Ten additional states were given the option to adopt the law. However, the law has long been understood to defer civil and regulatory matters to tribal jurisdiction.
Mahnomen County Attorney Jason Hastings argued that Thompson’s conduct was criminal because he operated without a license. Hastings said Thompson was operating without authorization to sell a controlled product and that unlicensed sales put the public at risk. He compared the conduct to selling alcohol or prescription drugs without authorization.
Judges questioned both sides on how to apply precedents establishing Public Law 280 solely as a criminal procedure. They also raised questions about treaty rights, noting that the state had not directly addressed Thompson’s claim that his possession was protected under treaty reserved rights.
Jana Simmons, an attorney with Ropers Majeski PC, said the decision could set a significant precedent. A ruling in favor of Thompson could diminish Public Law 280's use in prosecuting cannabis regulation issues elsewhere, she said. That could, in turn, lower a potential barrier to individual entrepreneurs entering the Native cannabis market.
“If the state can't step in, that's beneficial for the individual tribal member,” Simmons said. “If it's deemed criminal, it's going to place more of a burden on those individual members trying to get into that space.”
Mary Jane Oatman, executive director of business advocacy group the Indigenous Cannabis Industry Association, said Public Law 280 has caused issues for aspiring Native business owners in the sector already - including her. As a member of the Nez Perce Tribe living in Idaho, where marijuana is still heavily criminalized, Oatman said she's taken a personal interest in seeing how Thompson's case might blunt the law's edges in other areas.
A positive outcome could, for example, lessen the risk of criminal prosecution in areas like Idaho, or in places like California, where patchwork legalization created by "opt-out" counties can present major problems for people transferring products.
“You get a local sheriff who's hellbent on watching anyone coming into their county with marijuana - that's a risk,” Oatman said. “This case does have implications for a lot of tribal citizens who vehemently defend their right to have a relationship with this plant.”
She also raised concerns about monopolization. As it stands, tribally-owned enterprises have a large advantage over individual tribal members' businesses, thanks to compacts like the one White Earth Band signed with the state of Minnesota. White Earth Band opened its own dispensary in August 2023.
“Tribal enterprises are not looking at (creating) ecosystems that are competitive,” Oatman said.
Thompson himself doesn’t know what comes next for him - even if he wins his case, he isn’t sure about offering marijuana in his shop again. However, Thompson believes his case goes beyond his own fortunes.
“I think this is going to extend a little further - I think it's going to open up people's eyes to what's going on with PL 280,” he said. “I think it extends past my case and the relationship with our people here. This is going to affect other people in other areas.”
