WHITE PLUME HEMP CROP DESTROYED AGAIN

PINE RIDGE - Alex White Plume had to watch his tiospaye's hemp crop
cut down by federal agents on Monday, July 30 for the second time.

U.S. Attorney Michelle Tapken reacted quickly to the letter from
Oglala Sioux Tribal President John Steele ordering federal law
enforcement officers to have no further contact with tribal members
regarding the cultivation of industrial hemp.

Tapken ordered a search of a field consisting of approximately three
acres three miles north of Manderson, South Dakota on land of the
White Plume tiospaye. A consent to search document to be signed by
Alex White Plume as head of the White Plume tiospaye and Bruce Ellison
as attorney for the White Plume tiospaye was mailed to Ellison at his
Rapid City law office. White Plume and Ellison each signed the document.

President Steele stood by and watched as the crop was destroyed.
Ellison, who convinced White Plume to sign the consent to search, was
not present as the crop was destroyed.

A letter attached to the consent to search document guaranteed White
Plume immunity from criminal prosecution based on evidence seized by
Drug Enforcement Agency (DEA) agents. The letter authorized the agents
to seize any plants of the genus cannabis sativa, whether referred to
as hemp or marijuana, and to destroy the plants.

The grant of use immunity was conditioned upon White Plume not
planting or cultivating any such crop in the future without the
authority of an order from the United States District Court.

The consent document specifically declared that White Plume had not
been threatened, nor forced in any way to consent to the search. It
states that White Plume freely consents to "this search, seizure and
destruction, pursuant to the terms contained in the attached letter
dated July 27, 2001." White Plume had been told that he faced 10 to
100 years in federal prison if prosecuted under the Controlled
Substances Act.

A field containing one and one-half acres of hemp plants was cut last
year and burned at Ellsworth Air Force Base. White Plume considered
the hemp as the mainstay of an agricultural crop that could aid his
Tiospaye in becoming self-sufficient. He said he is "a proud
grandparent trying to find economic independence for myself and my
people so we will no longer be considered a dependent nation."

Several legal questions remain unresolved. The first is whether
industrial hemp is covered under the Controlled Substances Act. The
second is, even if the industrial form of hemp is a controlled
substance, does the Controlled Substances Act give federal agents
jurisdiction over its growth in Indian country?

Industrial hemp is a plant which is used to produce building
materials, insulation, fuel and many other products. White Plume set
up his own lumber mill to produce his own lumber. He made a hemp
house. He has received samples of hemp insulation from Germany. White
Plume planned to manufacture his own hemp insulation if the DEA did
not destroy his crop. Industrial hemp is used for ropes and twine and
is reputed to make stronger products than any other material. A hemp
car fueled by industrial hemp oil is currently touring the United
States. The car will be in Watertown on August 3.

During World War II the United States government entered into
contracts with members of the Oglala Sioux Tribe to grow hemp for
government use. When the government needed the hemp, tribal members
agreed to help them. It is doubtful that the U.S. government used the
hemp as a controlled substance.

On the 28th day of July, 1998 the Oglala Sioux Tribal Council adopted
Tribal Ordinance 98-27 which authorizes tribal members to grow
industrial hemp as a cash crop on reservation land. The ordinance
notes that today industrial hemp is a profitable international
commodity that is grown legally in more than thirty countries
including Canada, France, Germany, England Russia, China and Australia.

The ordinance further states that both the tribe and the United States
government acknowledge that the tribe retains the right to grow food
and fiber crops from the soil under the Fort Laramie Treaty of 1868.
The tribe also has a retained treaty right to engage in agriculture.
The ordinance says also "industrial hemp was a viable and profitable
crop grown in the Pine Ridge region when the treaties were entered
into between the United States and the Oglala Sioux Tribe."

Industrial hemp is distinguished from its relative plant, marijuana,
based on the amount of tetrahydrocannabinol (THC) present in the
respective plants. There is a genetic difference between the two
plants that is both consistent and predictable, according to the
tribal ordinance. Thus the tribal ordinance is not in conflict with
the tribal prohibition of the use of marijuana on the reservation. In
order to clarify the fact that industrial hemp is not the same as
marijuana, the tribal penal code was amended to define marijuana
separately from industrial hemp. Industrial hemp in the ordinance is
defined as "all parts and varieties of the plant Cannabis sativa, both
indigenous and imported, that are, or have historically been
cultivated and harvested for fiber and seed purposes and contain a
[THC] concentration of one percent or less by weight."

Under Ordinance 98-27 White Plume, along with members of his tiospaye,
Wa Cin Hin Ska, planted a one and a half acre field of industrial hemp
along the banks of Wounded Knee Creek in early May 2000. White Plume
invited U.S. Attorney Ted McBride and BIA Superintendent Bob Ecoffey
to the planting. Neither Ecoffey nor McBride accepted the invitation.

Nearly four months later under the auspices of the Controlled
Substances Act, early in the morning on August 24, armed DEA agents
and FBI officers cut down White Plume's hemp crop. Twenty-five federal
agents wearing bulletproof vests surrounded the field while two
small-engine planes and one helicopter flew reconnaissance overhead.
By 8:30 a.m. the agents had confiscated virtually all the hemp crop.

Thomas Ballanco who drafted tribal ordinance 98-27 offered to
represent any person or entity who are prosecuted for cultivating
industrial hemp on the reservation. White Plume has not been
prosecuted. Ballanco and local attorney Ellison are allegedly
preparing a civil suit against the United States government for
destruction of the crop.

Because industrial hemp is not a product that is used to alter the
mind, it probably should not be covered under the Controlled
Substances Act. The Act however makes no distinction between
industrial type hemp with a low THC content and other hemp.

Even if industrial hemp is covered under the Controlled Substances Act
the remaining legal issue involves jurisdiction. Does the tribe or the
federal government have jurisdiction over substance abuse offenses in
Indian country?

The United States Supreme Court determined that the US government did
not have jurisdiction over crimes committed by Indians in Indian
Country in Ex Parte Crow Dog. They based that ruling on their
interpretation of the 1868 Treaty. The Court said that no
congressional act had extinguished the right of a tribe to punish the
wrongdoing of its members. To change that Congress passed the major
crimes act which gave the U.S. government jurisdiction over seven
major crimes committed by Indians in Indian Country in 1887. That act
was amended in 1988 to add seven more crimes to federal jurisdiction.
Neither the original act nor its amendment listed controlled substance
abuses to the list of crimes for which tribal jurisdiction was
extinguished.

The Controlled Substances Acts of 1970 and 1990 do not specify that
the United States government has jurisdiction over violations in
Indian Country but merely states that any person violating the act in
areas under federal jurisdiction are covered under the act. In Federal
Power Commission v. Tuscarora Indian Nation, the Supreme Court ruled
in 1960 that a general statute in terms applying to all persons
includes Indians and their property.

However exceptions to that rule were set out in Donovan v. Coeur
d'Alene Tribal Farm in 1985. That case held "A federal statute of
general applicability that is silent on the issue of applicability to
Indian tribes will not apply to them if the application of the law to
the tribe would 'abrogate rights guaranteed by Indian treaties.'

Because the Oglala Sioux Tribe has a treaty giving them jurisdiction
over Indians committing crimes on the reservation, they fit into an
exception to the ruling that 'any person' includes Indians in Indian
country. Only when Congress specifically extinguished jurisdiction
over specific crimes, as they did in the Major Crimes Act is their
inherent jurisdiction removed.