By Max Nesterak
The Minnesota Court of Appeals will review whether the state may prosecute tribal members for cannabis crimes on most Native reservations in the state, wading into new legal territory after the state legalized recreational cannabis in 2023.
The case involves a White Earth citizen, Todd Thompson, who faces a felony charge for selling marijuana from his tobacco store in Mahnomen on the White Earth reservation.
Mahnomen County sheriff’s deputies and White Earth tribal police raided his store on Aug. 2, 2023, a day after recreational cannabis became legal in Minnesota, and seized about 7.5 lbs of cannabis, 433 grams of marijuana wax and $2,748 in cash along with Thompson’s cell phone and surveillance system.
More than eight months after the raid, Mahnomen County charged Thompson with felony possession, which carries a maximum sentence of five years in prison and a $10,000 fine.
Thompson asked Mahnomen County District Judge Seamus Duffy to dismiss the charge, arguing that the state doesn’t have the legal jurisdiction to prosecute him.
Under what’s called Public Law 280, Minnesota has the power to prosecute tribal members on certain reservations including White Earth’s for criminal acts, but not civil or regulatory violations of state law. Thompson and his attorney, Claire Glenn, argued that after cannabis was legalized in Minnesota, possessing and selling the drug became a regulatory matter, not a criminal one.
Thompson also argued that prosecuting him for possession of cannabis violated his rights under the United States’ 1855 Treaty with the Ojibwe, which guarantees the Ojibwe usufructuary rights to hunt, fish and gather on ceded lands.
The district court judge ruled that the state did have jurisdiction, allowing the case to proceed. He held that the matter was criminal and that treaties guarantee rights to tribes, not individuals.
Typically, criminal cases can only be appealed after a conviction, which raised the prospect that Thompson could be forced to go to prison before being able to appeal the judge’s ruling.
Thompson’s attorney, Claire Glenn, asked the Court of Appeals to make an exception and review the jurisdiction matter because his case presents new legal questions that will have implications for Native tribes and tribal members across the state. The appeals court judges agreed.
“A decision on the jurisdiction of the state to enforce Minnesota’s cannabis-possession laws and on the extent of the rights reserved under applicable treaties will have an immediate statewide impact on all Tribes in Minnesota subject to Public Law 280 and on their members,” Chief Judge Jennifer Frisch wrote in the opinion on behalf of herself, and Judges Randall Slieter and Rachel Bond.
Glenn praised the decision, noting how rare it is for the Court of Appeals to intervene in the middle of criminal cases.
“We’re very encouraged by that, but obviously we have a ways to go,” she said.
Both sides must now submit written briefs before oral arguments will be scheduled.
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