A Lakota family on the Pine Ridge Reservation will have to get a permit from the Drug Enforcement Agency if they want to continue growing hemp, a federal appeals court said on Wednesday.

Citing the 1868 Treaty of Fort Laramie and tribal law, Alex White Plume and his family began planting hemp in 2000. Three years in a row, DEA agents raided the farm, seized plants and shut down the operation.

White Plume, the vice president of the Oglala Sioux Tribe, challenged the seizures. He said the treaty protects his right to farm and make a living off industrial hemp, which has a wide variety of purposes.

The 8th Circuit Court of Appeals disagreed. In a unanimous decision, a three-judge panel said the treaty provides federal assistance should tribal members decide to go into farming but doesn't guarantee the right to grow any particular crops.

"Regardless of the historical accuracy of the assertion that the federal government encouraged hemp growing when the treaty was signed, the plain language of the treaty merely refers to 'farming' �- it mentions nothing about farming hemp," Judge C. Arlen Beam wrote for the majority.

That means White Plume will have to obtain permission from the DEA to grow what is otherwise considered an illicit substance under the federal Controlled Substances Act. According to the law, hemp and its cousin marijuana are the same substance even though hemp lacks tetrahydrocannabinol (THC), the chemical that gives marijuana its characteristic "high."

"Given that the CSA prohibits the cultivation of marijuana without a DEA registration, and given that 'the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United States . . . shall extend to the Indian country,' the White Plumes may not cultivate hemp without a DEA registration, and the treaty does not reserve any such right," the court wrote.

At one point, the family attempted to obtain federal registration for his crop. But the process is arduous and time-consuming, as the DEA has only granted one such permit -- for a state-operated facility in Hawaii that the agency initially opposed.

Alternatively, the White Plumes could raise a challenge based on the equal protection clause of the U.S. Constitution. The U.S. Supreme Court recently ruled that a religious sect in New Mexico could import and use a drug for ceremonies even though it is listed under the CSA.

But the 8th Circuit didn't consider that argument because the family failed to raise it in their briefs. The court did address other defenses but rejected them all in favor of the federal government.

In 1998, the Oglala Sioux Tribe amended its laws to differentiate between hemp and marijuana and to allow the cultivation of hemp. The White Plumes subsequently began farming and entered into contracts to sell hemp to two companies.

Tribal leaders hemp farming could spur economic development address high unemployment rates on the reservation and provide materials for housing that is sorely needed on the second-largest reservation in the U.S. Tribal members were using a product known as "hempcrete" to build houses.

"The people used to have the buffalo for our food, clothing and shelter," said former Oglala Sioux President Joe American Horse at the planting of hemp seeds in April 2000, on the 132nd anniversary of the treaty. "Now, hemp can do that for us."

The 8th Circuit said it was sympathetic. "We are not unmindful of the challenges faced by members of the Tribe to engage in sustainable farming on federal trust lands. It may be that the growing of hemp for industrial uses is the most viable agricultural commodity for that region. And we do not doubt that there are a countless number of beneficial products which utilize hemp in some fashion."

But the judges ultimately ruled against the White Plumes because "these are policy arguments better suited for the congressional hearing room than the courtroom." Only Congress can make changes to the CSA or other laws to allow cultivation of hemp, the court said.

Court Decision:
US v. White Plume (May 17, 2006)

Court Briefs:
US v. White Plume (8th Circuit Court of Appeals)

Relevant Links:
Oglala Sioux Tribe - http://www.lakotamall.com/oglalasiouxtribe
Pine Ridge Hemp Project - http://www.plenty.org/pineridgehouse.htm