U.S. v. White Plume, 05-1654.
| Decision Date | 17 May 2006 |
| Docket Number | No. 05-1654.,No. 05-1656.,05-1654.,05-1656. |
| Citation | 447 F.3d 1067 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alexander "Alex" WHITE PLUME; Percy White Plume, their agents, servants, assigns, attorneys, and all others acting in concert with the named defendants, Defendants-Appellants, Tierra Madre, LLC, a Delaware limited liability company; Madison Hemp and Flax Company 1806, Inc., a Kentucky corporation, Intervenor Defendant. Owe Aku Tiospaye; Indigenous Law Institute; Institute for Cultural Ecology; Oglala Sioux Tribe; The Hemp Industries Association; Vote Hemp, Amici on behalf of Appellants. United States of America, Plaintiff-Appellee, v. Alexander "Alex" White Plume; Percy White Plume, their agents, servants, assigns, attorneys, and all others acting in concert with the named defendants, Defendants, Tierra Madre, LLC, a Delaware limited liability company; Madison Hemp and Flax Company 1806, Inc., a Kentucky corporation, Intervenor Defendant-Appellants. Owe Aku Tiospaye; Indigenous Law Institute; Institute for Cultural Ecology; Oglala Sioux Tribe; The Hemp Industries Association; Vote Hemp, Amici on behalf of Appellants. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Bruce H. Ellison, argued, Rapid City, SD, for appellant White Plume.
David C. Frankel, argued, San Francisco, CA, for Tierra Madre.
Mark E. Salter, argued, Asst U.S. Attorney, Sioux Falls, SD, for appellee.
Before BYE, BEAM, and GRUENDER, Circuit Judges.
Alex and Percy White Plume, members of the Oglala Sioux Tribe (Tribe) on the Pine Ridge Indian Reservation, and Tierra Madre, LLC and Madison Hemp and Flax Company 1806, Inc. (the Companies), (collectively, "Appellants") appeal the district court's1 grant of summary judgment in favor of the United States. We affirm.
In 1998, the Tribe Council passed tribal ordinance number 98-27 which amended the Oglala Sioux Tribal Penal Code, Title 9, Section 106 (Marijuana) and Section 106.00 (Controlled Drugs and Substances). The amendment to Title 9, Section 106 provided for a sentence of labor not to exceed six months, or a fine not to exceed $360, or both, for any Indian who farmed, gathered, or dealt in marijuana. Section 106(e), which defines "marijuana" for purposes of the penal code, was amended to exclude all parts of the Cannabis plant that contain less than one percent of the chemical tetrahydrocannabinol (THC) by weight. The amended ordinance specifically excluded "industrial hemp" by definition. A definition of industrial hemp was added to section 106.00, describing it as
[a]ll parts and varieties of the plant Cannabis sativa, both indigenous and imported, that are, or have historically been, cultivated and harvested for fiber and seed purposes and contain a tetrahydrocannabinol concentration of one percent or less by weight.
Appellee's App. at 13. Before passage of the amendments, the United States Attorney for South Dakota had notified the Tribe of the Drug Enforcement Agency's (DEA) position that the manufacture of hemp required a DEA Certificate of Registration (DEA registration) permitting the manufacture of marijuana. He also warned that anyone cultivating marijuana or hemp without one was subject to criminal prosecution.
Pursuant to the ordinance, and without a DEA registration, Alex White Plume raised a cannabis crop on federal trust land in 2000. White Plume contracted to sell the crop to Tierra Madre, a hemp processing company. The government learned of the crop, obtained samples of it under a search warrant, and, pursuant to court order, destroyed it. The next year, Percy White Plume tried his hand at growing cannabis on federal trust land without a DEA registration, and told the government he was doing so. He was sent a DEA registration application, but it was never completed, and a registration was never issued. As earlier, the government destroyed the crop. That crop was under contract to be sold to another hemp processing company, Madison Hemp. Undaunted, in 2002, Alex White Plume planted yet another cannabis crop on federal trust land, and, equally undaunted, the government again took samples and discovered traces of THC. Instead of prosecuting the White Plumes, the government asked the district court to declare them in violation of the Controlled Substances Act (CSA) and to permanently enjoin them from manufacturing or distributing cannabis.
The district court found that the White Plumes had violated the CSA by cultivating, without a DEA registration, hemp, which the court held was included in the definition of marijuana under the CSA. It also found that the Treaty of Fort Laramie of 1868 (Treaty) did not preserve any right of the Tribe to grow cannabis. Finally, the court determined that the classification of hemp as marijuana was not irrational and unconstitutional. The court ordered the White Plumes permanently enjoined from cultivating Cannabis sativa L. without a valid DEA registration.
Appellants argue the district court erred (1) by holding that industrial hemp is subject to the CSA, (2) by finding that the Treaty does not grant the Tribe the right to cultivate hemp, and (3) by failing to find that regulating hemp under the CSA constitutes a due process and equal protection violation.2
The CSA makes it illegal to manufacture, distribute, dispense, or possess any controlled substance except as authorized by the CSA. 21 U.S.C. §§ 841(a)(1), 844(a). A controlled substance is anything listed in a schedule under the CSA. Id. at § 802(6). A person who proposes to engage in the manufacture or distribution of a controlled substance must obtain a registration (DEA registration) issued by the attorney general pursuant to regulations established by that office. Id. at §§ 822-824; 21 C.F.R. §§ 1301 et seq. The CSA establishes five "schedules" of controlled substances differentiated by the scheduled drugs' potential for abuse, usefulness in medical treatment, and potential consequences if abused. To be placed on Schedule I, a drug or substance must have a "high potential for abuse," must have "no currently accepted medical use in treatment in the United States," and there must exist "a lack of accepted safety for use of the drug or other substance under medical supervision." 21 U.S.C. § 812(b)(1). "Marihuana" (marijuana) and "tetrahydrocannabinols" (THC) are both listed on Schedule I. Id. at § 812(c)(Schedule I)(c)(10), (17).
Appellants first argue that the hemp the White Plumes attempted to farm is not "marijuana." Section 802(16) defines marijuana as "all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin." Excepted from the definition are
the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
21 U.S.C. § 802(16). Appellants argue that the court ignored evidence that industrial hemp and marijuana are really different species of Cannabis, and that the drug "marijuana" that Congress sought to regulate in the CSA is Cannabis indicus. But Congress clearly defined "marijuana" as Cannabis sativa L. in the CSA. "`We are persuaded that Congress adopted "Cannabis sativa L." believing it to be the term that scientists used to embrace all marihuana-producing Cannabis; the other named sorts were not seen as separate Cannabis species.'" United States v. Gavic 520 F.2d 1346, 1352 (8th Cir.1975) (quoting United States v. Honneus, 508 F.2d 566, 575 (1st Cir.1974)). See New Hampshire Hemp Council, Inc. v. Marshall, 203 F.3d 1, 3 (1st Cir.2000) ().
In support of their argument that Congress did not intend to regulate industrial hemp, Appellants also assert that while the definition of "marijuana" in the modern CSA was carried forward from the Marihuana Tax Act of 1937 (Tax Act), which the CSA replaced, the Tax Act's practical effect of excluding industrial-use portions of the plant from regulation by not taxing them, was not carried forward. As a result, Appellants argue, Congress unintentionally subjected industrial hemp to regulation under the CSA. They cite Hemp Council for a bit of history to support this assertion.
The definition of "marijuana" under the CSA is derived from the Tax Act, 50 Stat. 551, Hemp Council, 203 F.3d at 7, and uses identical language as that used in the Tax Act.
The term "marihuana" means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.
50 Stat. 551 § 1(b). The practical effect of the Tax Act, however, was to treat industrial-use and drug-use marijuana differently by taxing them at different rates, or not at all.
All producers of cannabis sativa and certain legitimate users (e.g., doctors) were subject to a small tax, ...
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