The White Earth case invokes complicated Indian law and could cut against state’s goal to end punitive approach to cannabis
Todd Thompson, a White Earth tribal member, sold cannabis from his tobacco store in Mahnomen on the White Earth reservation in northern Minnesota. Photo by Max Nesterak/Minnesota Reformer.
About three months ago, Mahnomen County sheriff’s deputies and White Earth tribal police raided Todd Thompson’s tobacco shop, seizing around seven pounds of cannabis, along with $3,000 in cash, his cell phone and surveillance system.
The Aug. 2 raid happened the day after recreational marijuana became legal across the state and was the first major enforcement action under the new law.
But no charges have been filed in the case — and the state may not have the authority to prosecute him or any other tribal member for marijuana crimes on reservations.
Thompson, a member of the White Earth Nation, didn’t have a state permit to sell cannabis nor did he have the consent of the tribal council, which voted days earlier to allow adult-use cannabis and sell marijuana cultivated in its tribal-run facility.
For his part, Thompson doesn’t believe he needs the permission of the state or the tribal council to sell marijuana on the reservation under the Minnesota Chippewa Tribe’s constitution or U.S. treaties with the Ojibwe. That’s why Thompson said he and four other tribal members decided to sell cannabis out in the open from Asema Tobacco and Pipe, the store he’s run for five years in Mahnomen.
“We were pushing our rights,” Thompson said in an interview. “We’re just sick of being held down. And every economic opportunity, we’re held back from.”
They made it hard for law enforcement to ignore, advertising marijuana for sale with Facebook photos and videos showing large jars of green marijuana buds and invited people to come in.
The next day, tribal police and Mahnomen County sheriff’s deputies came to Thompson’s store with a search warrant. In the search warrant application filed in Minnesota district court, a White Earth narcotics investigator said they had seen a Facebook Live video of Thompson promoting the sale, and an undercover agent then purchased cannabis there.
Thompson said police handcuffed him and workers at his store and held them for more than an hour while they searched the premises.
He said they also went to his house, where they broke into his safe and “desecrated” sacred items — he found his eagle feather on the floor and the ashes from his sage bowl dumped onto his white sheets.
“They’re just some rotten, dirty, bas*,” Thompson said.
Screenshots from Todd Thompson’s Facebook live video inviting people to come to his store on Aug. 1, 2023.
To Thompson, the raid was heavy-handed retribution by a spiteful tribal council for edging in on their effective monopoly on legal marijuana sales. Neither the state nor White Earth has set up a licensing system yet for individuals to legally sell cannabis. White Earth has opened a tribal-run dispensary, only the second legal dispensary in the state along with the Red Lake Nation’s.
Thompson actually beat White Earth to market — the tribe opened its dispensary the day after the raid about a half-mile away from Thompson’s store. He also said his prices were about half those in the tribal dispensary and he didn’t charge an additional 10% tax.
“They just strong-arm robbed me is what they did. They strong-arm robbed me,” Thompson said in an interview. “As soon as they took my sh**, they took us out of cuffs and they left … just like that.”
White Earth Nation Chairman Michael Fairbanks said the council didn’t order the raid on Thompson’s business — tribal police assisted Mahnomen County law enforcement and the council was informed after the raid.
Mahnomen County Attorney Jason Hastings said in an email the case is under investigation and he is “optimistic that the matter should be addressed within the next couple of weeks.”
This isn’t the first time Thompson has publicly taunted law enforcement in order to assert tribal sovereignty. In 2015, he was cited for illegally gillnetting on Gull Lake without a permit. Thompson fought the charges, which were ultimately dropped — years later — after a district court judge ruled that Thompson retained fishing rights on Gull Lake as a citizen of the White Earth Nation.
As in the 2015 fishing case, prosecuting Thompson raises complex legal questions given his tribal identity and store’s location on reservation land.
Minnesota has the power to prosecute criminal — but not civil — violations of state law by tribal members on certain reservations including White Earth’s under what’s called Public Law 280. The key in Thompson’s case will be determining if possessing large quantities of cannabis or selling it without a license is criminal or civil.
The answer may lie in a landmark 1987 U.S. Supreme Court case called California v. Cabazon Band of Mission Indians, which ushered in modern Indian gaming by creating a distinction between criminal laws that are prohibitory versus regulatory.
In that case, the Supreme Court decided that “if the intent of a state law is generally to prohibit certain conduct, it falls within (Public Law) 280 … but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory.”
And by the looks of it, Minnesota moved to allow “the conduct at issue,” i.e., marijuana sales, as of Aug. 1.
Yet, in some cases, the state may still pursue criminal prosecutions if the conduct violated the state’s “public policy.”
In 1997, the Minnesota Supreme Court took up a case involving prosecution of a Leech Lake Band of Ojibwe member for underage alcohol consumption. A district court judge dismissed the charge, saying the state didn’t have jurisdiction. But the state Supreme Court disagreed, ruling that state law strictly prohibits underage alcohol consumption because there is public policy interest in doing so.
In Thompson’s case, he said he and his partners only sold to other adults.
Customers line up to purchase cannabis from the White Earth Nation’s tribal-run dispensary in Mahnomen on Aug. 4, 2023. Photo by Max Nesterak/Minnesota Reformer.
Even if state authorities find they have the power to prosecute Thompson, doing so would be politically fraught. Minnesota’s new laws on cannabis are intended to end the state’s punitive approach to marijuana crimes.
Charging a Native American man for selling weed without a license smacks of the old regime.
State Democrats, buttressed by public polls showing support for legalization, said the new laws would advance racial justice through provisions to expunge people’s records of marijuana convictions and provide people from communities disproportionately harmed by the War on Drugs with a leg up in opening cannabis businesses of their own.
Dave Hart, commander of the Paul Bunyan Task Force that helped carry out the raid, emphasized that law enforcement agencies aren’t focused on marijuana crimes, especially as the opioid epidemic rages.
“Marijuana isn’t something we particularly target … we’re busy enough with heroin, fentanyl, methamphetamine,” Hart said. “In this particular case, it was a pretty blatant disrespect for the law.”
State Democrats also argued legalization would increase safety by bringing state regulation and oversight to the industry. Allowing people to sell unlicensed products of unknown potency and origin — Thompson declined to say where he sourced his product — without consequences would make state and tribal regulations meaningless, effectively giving as little oversight to a mind-altering drug as the government does to vitamins.
Already state regulators have struggled to clamp down on rampant violations of regulations on low-dose THC edibles as new businesses look to stake their claim in the Green Rush coming to Minnesota.
The fact that cannabis remains illegal under federal law could further complicate Thompson’s case, though the matter is not likely a priority for federal law enforcement.
The U.S. Department of Justice advises federal prosecutors to focus marijuana enforcement on cases that involve sale to minors; revenue that goes to criminal enterprises; the use of firearms and where other serious factors are at play.
That leaves White Earth authorities to enforce adult-use cannabis codes, which prohibit the cultivation and sale of cannabis unless licensed by the tribe’s Medicinal Cannabis Control Commision. The tribe’s code says the commission has the power to destroy illegal cannabis and levy fines against people who violate the code.
Another factor adds further confusion: While the tribal council voted to approve the adult-use cannabis code on July 28, it wasn’t ratified and signed until Aug. 3, the day after the raid, meaning it’s not clear if the White Earth regulatory regime was in effect when the raid occurred.
Fairbanks, the tribal chairman, said he wasn’t fully briefed on the jurisdictional issues at play, but he said he thought the county would lead on investigating Thompson and bringing any charges.
Calls and an email to the head of the White Earth Medicinal Cannabis Control Commission seeking clarity on when the codes took effect and what penalties there may be were not returned.
Thompson’s own legal challenge to state law and the tribal code are headier. Like many Native people, he doesn’t believe Public Law 280 is legitimate.
He also thinks the White Earth tribal council overstepped its authority by establishing rules on cannabis sales without putting it before tribal members for a vote. White Earth did pursue medicinal cannabis through a referendum in 2020, but Thompson thinks that should have been voted on by all six member bands of the Minnesota Chippewa Tribe, not just White Earth.
He also believes the Minnesota Chippewa Tribe constitution grants him the right to sell cannabis because it grants “equal opportunities to participate in the economic resources and activities of the Tribe.”
Law professor Angelique EagleWoman is skeptical of his legal interpretation, however.
EagleWoman, who directs Mitchell Hamline’s Native American Law and Sovereignty Institute, said the Minnesota Chippewa Tribe constitution doesn’t give tribal members carte blanche in regulated industries.
“The common understanding of the constitutional provision in many different governmental constitutions … refers to the idea that if an economic activity is licensed and regulated by the government, then a citizen who meets all of the requirements will be able to participate equally in the economic resource,” EagleWoman wrote in an email.
Even if the county doesn’t ultimately prosecute Thompson, it doesn’t have to automatically return his cannabis, cash, cell phone or other seized items. Thompson would likely have to file a lawsuit to get his property back.
Thompson said he is considering his legal options.
“This has not ended,” Thompson said. “Believe me, this isn’t by any means over with.”
