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.]