South Dakota Jury Acquits Tribal Cannabis Consultant of All Charges

The verdict is a rebuke to an attorney general who helped doom plans for a marijuana resort on an Indian reservation.



Two years ago, the Flandreau Santee Sioux had high hopes of capitalizing on the collapse of mariuana prohibition by opening a resort where cannabis could be purchased and consumed on their reservation in South Dakota. It all ended in fire and tears as the tribe decided to burn its first cannabis crop rather than risk the wrath of state and federal officials. But yesterday a jury in Flandreau delivered an implicit rebuke to South Dakota Attorney General Marty Jackley, the marijuana resort's leading opponent, by acquitting a consultant who worked on the project of state drug charges.

Last year Jackley got a grand jury to charge Eric Hagen, a 34-year-old cannabis consultant from Colorado, with conspiracy to possess, possession by aiding and abetting, and attempted possession of more than 10 pounds of marijuana. Hagen faced up to 10 years in prison for each of the first two counts and up to seven and half years for the third. His business partner, Jonathan Hunt, had already pleaded guilty to a conspiracy charge. Hunt, who was more involved in the day-to-day operations of the tribe's marijuana grow, said he could not afford to fight the charges against him.

The Flandreau Santee Sioux project was inspired by a 2014 memo in which the Justice Department said it would treat tribally authorized marijuana businesses in Indian country the same as state-licensed marijuana businesses, meaning they would generally be left alone unless they impinged on "federal law enforcement priorities." Since South Dakota does not exercise criminal jurisdiction on Indian lands, except on state highways that traverse reservations, tribal officials figured that members who grew or sold marijuana in compliance with tribal law would not have to worry about state prosecution either.

But as Robert Odawi Porter, a tribal law specialist in Washington, D.C., explained in a 2015 interview, that grace does not extend to people from outside the tribe. "If you're a non-Indian on tribal lands, the state retains its criminal jurisdiction over you," Porter said. "I've been wondering why everybody who is looking to get into this business is called a 'consultant,' and I think it's an effort to distinguish between being a manager, owner, or person in control and a person who is just giving advice. I don't think it's a meaningful distinction to law enforcement."

Porter was right about that. Jackley even claimed that resort customers who were not members of the tribe could be arrested for consuming marijuana on the reservation or for possessing it internally after leaving the reservation. There also were rumors of an impending federal raid on the marijuana grow, notwithstanding the DOJ memo.

During Hagen's trial, his lawyer, Mike Butler, argued that there was no conspiracy, since the tribe openly legalized marijuana and announced its plans for a resort where people could enjoy it. Butler also maintained that Hagen merely offered advice and never actually possessed or sought to possess the marijuana, which belonged to the tribe. The trial lasted four days, and the jurors reached their verdict after deliberating for about two hours.

The fact that Hagen was acquitted in spite of his vulnerability under state law sends a pretty clear message to Jackley, a candidate for governor whom critics accused of grandstanding by making a show of fighting the resort. "He tanked our company by spreading lies and rumors, and it's upsetting," Hagen told the Associated Press. "This was simply a media ploy for Marty because he's running for governor in 2018." Jackley kept his game face, saying, "I do continue to urge our South Dakota tribes to make their own determination that marijuana grows of this nature can affect the public health and safety on their reservations and across our state."

Even as they burned the crop that Hagen helped grow, tribal officials talked about reaching an accommodation that would allow the project to proceed. "Tribal leadership is confident that after seeking clarification from the United States Department of Justice, it will be better suited to succeed," Seth Pearman, the tribe's general counsel, said in a November 2015 statement. "The Tribe will continue to consult with the federal and state governments, and hopes to be granted parity with states that have legalized marijuana. The Tribe intends to successfully participate in the marijuana industry, and Tribal leadership is undaunted by this brief sidestep." With the Justice Department under new, decidedly less weed-friendly management, that dream seems dead for the forseeable future.

[Thanks to Marc Sandhaus for the tip.]

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  1. Time for Sessions to step in and give it a go?

  2. as the tribe decided to burn its first cannabis crop

    Weren’t they gonna do that anyway?

  3. Sorry, as long as federal law prohibits drugs and states/people use/sell drugs, this will continue to happen.

    Just push for repeal of federal drug laws.

    1. How is that supposed to happen when you keep supporting team extreme drug war, aka GOP?

      1. Well God, demand your Republican politicians legalize drugs.

        When the Democratic Party falls apart completely and people stop voting for them, then it will be Libertarians vs Republicans.

        1. The same party calls itself by two names, democrats or republicans. Fundamentally there is no difference, as both are authoritarian, socialist. The LP likes to portray itself as different, but wait until it gets power and watch it disappoint, in the name of “tactics” or “strategy”. Power corrupts. The only way to stop it from hurting us is not to create it, not to forfeit our sovereignty to anyone. It’s called self governance. Basing it on voluntarism would allow all to be as safe as possible. But first enough people have to grow up, politically and psychologically.

  4. Thank god for that jury. Your welcome.

    1. Fun fact: even the good Lord makes grammatical errors.

      1. Hey no one is perfect not even God and that should make you feel good and that’s why I’ve shown myself to you Crusty. No one else can see my comments, only you.

      2. but this guy is neither GOOD nor LORD. And the REAL One doesn’t make grammatical errors anyway. He, being the One who invented grammar and language, always does it right.

  5. Cripes on a cracker, this guy has been through a lot! His girlfriend was killed, then he was kidnapped, held hostage, and forced to cook meth for an Aryan gang until his former chemistry teacher and partner saved him, and now this!

    1. A little excruciating suffering never hurt anyone. Agreed?

  6. They should have piled the devil weed on the DA’s front lawn before burning it. That would make for great campaign ads.

    1. No… you… didn’t – snaps finger. That’s the Lord’s Herb!

  7. “If you’re a non-Indian on tribal lands, the state retains its criminal jurisdiction over you,”

    So the feds don’t put up with any kind of ethnicity-fluid declarations.

  8. So, since gambling for money is illegal in my state, whenever I, a non indian, go onto a reservation and gamble, am I then breaking my state’s laws against gambling?

    Seems a double standard here…… it works for gambling but not for pot? On WHAT basis?

  9. I bet those same “tribal officials” who are begging for permission to live on their reservation would call it “their land” and call themselves “sovereign”. Is this what it means to practice self deception? At least the slaves knew they were acting like slaves. Freedom begins in the mind of the enslaved. All that is required to be free is to act like it, stop obeying, stop “seeking accommodation” from masters.

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