Cal Thunder Hawk
Ellison perceives traces of cocaine "lab mistake"
Story and Photo by Cal Thunder Hawk Lakota Journal Staff Writer
RAPID CITY – An industrial hemp harvest celebration between the White Plumes of the Pine Ridge Reservation and the Madison Hemp & Flax Company, Inc., of Lebanon, KY, was brought to an abrupt halt after Judge Richard H. Battey approved a motion for a temporary restraining order. It was filed by John O. Holm, assistant U.S. Attorney against brothers Alex and Percy White Plume. The White Plumes are enrolled members of the Oglala Sioux Tribe.
This is the third consecutive year that the OST and the federal government have battled each other over hemp. The order effectively halted the White Plumes harvest of industrial hemp for a third time. Craig Lee, of the Madison Hemp & Flax Co., had arrived at the White Plume residence for the planned festivities, scheduled to take place on August 14. White Plume said that he had to tell Lee, “I’m sorry, this harvest was meant for you but because of this temporary restraining order, I can’t give it to you.”
It specifically prohibited the White Plumes from “ .. possessing … manufacturing … distributing marijuana, possessing marijuana with intent to manufacture or distribute marijuana, a Schedule I controlled substance.” It also sought to prevent them from “distributing marijuana to Madison Hemp & Flax Company of Lexington, Kentucky, or to any other person or entity before, on or after Wednesday, August 14, 2002.”
At a hearing last Tuesday conducted at the Federal Building in Rapid City, Holm and Assistant U.S. Attorney Mark A. Vargo entered Oglala Sioux Tribe Ordinance 98-27 as one of 23 exhibits.
The ordinance, passed in 1998, amended the Oglala Sioux Tribe penal code and defined industrial hemp as, “All parts and varieties of the plant Cannabis sativa … [that] contain a tetrahydrocannibol (THC) concentration of one percent or less by weight.”
J.C. Salley, who is a special agent for the Drug Enforcement Agency (DEA), appeared as a witness for the federal government. He was cross-examined by Bruce Ellison, attorney for the White Plumes. Ellison cited the ordinance and asked about the THC content of the plants taken from the White Plume field. Salley said that the DEA doesn’t test a plant “visually identifiable as marijuana” for THC.
However, at Vargo’s request in 2000, the DEA lab did perform a test on a plant taken from the White Plume field “to determine if White Plume had violated Oglala Lakota Nation Tribal Laws which provides that marijuana can be grown if its THC concentration is less than one percent.”
Salley also said that the DEA lab reports of the plants taken at various times from the White Plume field did not distinguish between species of the plant.
While Cannabis sativa L. is specifically prohibited under the statute that is being applied in White Plume’s case, Salley couldn’t identify other species of the plant: species that are used in the production of industrial hemp. Salley agreed that the average THC content for marijuana consumption was .05 percent.
Ellison said, “The high potential for abuse was a criteria for placing Cannibis sativa L. in Schedule I.”
And he pointed out that the average THC percentage found in marijuana was “twenty-five times higher than the .05 percent average found in Cannibis sativa–industrial hemp.”
When Salley was asked by Ellison about an August 1, DEA lab report of samples taken from the White Plume field which showed “marijuana and cocaine traces,” Salley agreed with Ellison that the report was an “unusual analysis.”
Ellison argued that the U.S. government trust responsibility, according to the Fort Laramie Treaty of 1868, made provisions for promoting economic and agricultural development and that White Plume’s industrial hemp production was protected under these provisions.
The federal government argued that the plant, regardless of THC concentration, is marijuana.
The final order prohibited the White Plumes from “…possessing, manufacturing, or distributing marijuana, further including ‘industrial hemp.’” According to White Plume, the ‘industrial hemp’ inclusion—not present in the original complaint—appears to be the first time this term has been specifically applied to such a case.
Ellison said, “The issue is one of sovereignty for the Lakota people. The U.S. government and the Lakota Nation entered into treaties. The U.S., as one of its obligations supports agricultural and economic development as one of its obligations.”
When asked about the “traces of cocaine” found among the sample taken from the White Plume field, Ellison said, “I perceived this as a lab mistake: contamination of the sample.”
A hearing has been scheduled for Oct.1 on the federal government’s motion for preliminary and permanent injunction.