Before oral arguments can be scheduled, both sides are required to submit written briefs.
By Matt Nesterak, Minnesota Reformer
Minnesota’s Court of Appeals is examining whether it can prosecute tribes for crimes involving cannabis on the majority of Native Reservations in the State. This will be a new area of law after 2023 when the State legalized cannabis as a recreational drug.
Todd Thompson of White Earth faces a criminal charge after selling marijuana at his tobacco store on Mahnomen Reservation.
Mahnomen County deputies, along with White Earth tribe police, raided Thompson’s store in 2023. This was a day following the passage of Minnesota’s recreational cannabis law. The officers seized approximately 7.5 pounds (or 433 grams) of cannabis wax as well as $2,748 and Thompson’s phone, surveillance system, and cash.
Mahnomen County, more than eight months following the raid, charged Thompson with felonious possession. This offense carries up to five years of prison time and a fine of $10,000.
Thompson has asked Mahnomen county district judge Seamus duffy to dismiss this charge. He argues that the state does not have jurisdiction to prosecute Thompson.
Public Law 280 gives Minnesota the authority to bring criminal charges against tribal members in certain reservations, including White Earth, for crimes committed, but not for civil or regulatory offenses. Thompson, along with his lawyer Claire Glenn argued that, after marijuana was legalized in Minnesota and became an issue of regulation, it no longer constituted a crime.
Thompson argued, too, that prosecuting Thompson for possessing cannabis was a violation of his rights as outlined in the 1855 Treaty between the United States and the Ojibwe. This treaty guarantees the Ojibwe the right to usufructuary, or the rights they have over ceded land, including the rights to fish, hunt, and gather.
The judge of the district court ruled the state had jurisdiction and allowed the case to continue. The district court judge held that this was a criminal case and that tribes are protected by the treaties.
Thompson was notified that he could only appeal the decision of the judge if convicted. This meant he would have to serve time in prison.
Claire Glenn – Thompson’s legal counsel – asked the Court of Appeals for an exception, and to review the issue of jurisdiction, because this case poses new questions of the law that could have a significant impact on Native tribes, and members of tribal groups, throughout the State. Judges of the appeals court agreed.
The Chief Judge Jennifer Frisch, on behalf of Judges Randall Slieter, Rachel Bond and herself wrote: “A decision regarding the authority of Minnesota to enforce its cannabis possession laws as well as the extent of rights reserved by applicable treaties would have an immediate statewide effect on all Tribes of Minnesota that are subject to Public Law 280. This will also affect their members.”
Glenn praised this decision and noted that it was rare for the Court of Appeals intervene to criminal cases.
She said, “This is very encouraging but we still have some way to go.”
Before oral arguments can be scheduled, both sides are required to submit written briefs.
Minnesota Reformer published this article first.
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