By Emily Zantow/Courthouse News
MADISON, Wis. (CN) – The St. Croix Chippewa Indians of Wisconsin sued the state’s attorney general Thursday, arguing state laws regulating hemp and cannabidiol do not apply to tribal lands and cannot block its production of hemp oil.
“Because the state of Wisconsin has chosen to regulate rather than prohibit industrial hemp and CBD under state law, Wisconsin’s industrial hemp and CBD laws are civil-regulatory in nature, and are therefore not enforceable by the Wisconsin attorney general in Indian country, and on St. Croix tribal lands in particular,” according to the lawsuit filed in Madison federal court by tribe counsel Jeffrey Cormell and attorneys from McAllister Garfield in Colorado.
The St. Croix Chippewa, a federally recognized tribe, argues it is a sovereign power in Wisconsin and therefore the state lacks jurisdiction to enforce its regulation of hemp and marijuana extract CBD on tribal property.
Industrial hemp is derived from the same plant as marijuana, cannabis sativa L, but is not psychoactive as it only has a concentration of 0.3 percent THC or less. It is used to make several commercial products such as paper and biodegradable plastics.
CBD oil is derived from industrial hemp, is also non-psychoactive and is commonly used for its medicinal and therapeutic properties, including the treatment of epilepsy.
In 2014, the tribe began planning a CBD business after the state implemented Lydia’s Law, which legalized the possession and use of CBD, with a doctor’s certification, as an exception to the general ban on THC, the psychoactive ingredient in marijuana.
The law is named after a 7-year-old girl whose parents pushed for CBD legalization to help treat her rare form of epilepsy.
Three years later, Wisconsin lawmakers passed a bill that legalized and regulated industrial hemp.
However, state law does not expressly allow for CBD oil production.
Meanwhile, the tribe adopted the St. Croix hemp cultivation and processing ordinance, which regulates the cultivation of industrial hemp and the production, distribution, possession and use of CBD on its lands.
The St. Croix Chippewa plans to run its hemp and CBD business out of a 149,725-square-foot facility that used to be a fish hatchery on tribal land in Danbury, Wis.
“Over the last three years the tribe has invested heavily in repurposing the facility to accommodate hemp cultivation and hemp oil processing. There is currently no other viable alternative purpose for the facility,” the lawsuit states.
According to the complaint, Wisconsin’s hemp bill allows for hemp cultivation in certain circumstances but does not address tribes’ “participation in the state’s pilot hemp project.”
The tribe says it contacted the state in 2016 to make sure its plans would not conflict with the state criminal code or federal guidance. In response, Wisconsin Attorney General Brad Schimel allegedly objected to the tribe’s ordinance and said he is “not in a position to make any promises or assurance with respect to potential law enforcement activity under state or federal law as it pertains to your tribe’s intentions with CBD oil.”
The St. Croix Chippewa wants a federal judge to declare that any potential law enforcement activity by the state would interfere with its sovereignty.
“The Wisconsin Attorney General fails to recognize and/or provide assurance that St. Croix may regulate hemp activity on its reservation, including the operation of tribal hemp and hemp oil businesses, free from criminal enforcement and interference by local and state law enforcement,” the complaint states.
Cormell, the tribe’s lead attorney, expressed frustration in a statement.
“Unfortunately, the tribe is forced to take legal measures in order to head off any prejudicial law enforcement action threatened by the state attorney general that would serve to undermine our tribal sovereignty and lawful hemp and CBD business operations,” Cormell said. “The Tribe has been fully transparent with its hemp program and expected impartiality, and a fair-handed approach from the state attorney general. The Tribe requested government-to-government consultation on two separate occasions, and even approached the attorney general with a proposed memoradum of understanding — all of which the Wisconsin attorney general rejected in favor [of] injudicious threats of state law enforcement action against our tribal hemp program. Attorney General Schimel left the tribe no option but to take him to court.”
Wisconsin Department of Justice spokesman Johnny Koremenos said in a statement, “Our attorneys have yet to review the lawsuit and thus we will have no comment on its merits, but we believe that any jurisdictional challenge to the application of Wisconsin’s criminal code on tribal lands will fail.”
The St. Croix Chippewa has been federally recognized since 1934 and is made up of over 1,000 members with tribal lands throughout Northwest Wisconsin.