Court says state cannot prosecute tribal citizen for cannabis charge on tribal lands

The Minnesota Court of Appeals ruled Monday that the state of Minnesota cannot prosecute Todd Thompson, a White Earth Band of Ojibwe tribal member, for possession of cannabis on tribal land.

Thompson was arrested the day after the state legalized recreational cannabis—at his tobacco shop on the White Earth reservation. State law enforcement seized more than seven pounds of cannabis and several thousand dollars in cash. 

Thompson was later charged in state district court with first degree possession of marijuana, a charge that carries a sentence of up to five years in prison and a $10,000 fine if convicted.

In an interview with MPR News, Thompson said he was surprised by the outcome of the case. He said the decision is important for tribal members living on reservations across the state.

“In cases where Native people have to go to court to fight and argue their rights, you’re always left with the question of whether you are going to be prosecuted, even though you have the right to do these things,” Thompson said. “This is going to affect everybody on the reservation.”

In Minnesota, several tribes, including White Earth Band, are subject to Public Law 280, a federal statute that allows local law enforcement to enforce state law within reservation boundaries.

Applying the facts of Thompson’s arrest to a test set forward by the U.S. Supreme Court in California v. Cabazon Band of Mission Indians, the Minnesota court held that possession of cannabis is a civil issue and not a criminal matter.  The appeals court noted that the White Earth Band of Ojibwe has enacted its own laws governing cannabis activities on the reservation.

Attorney Claire Glenn represented Thompson in his appeal. Glenn said the decision is a landmark case for tribal sovereignty. 

“This opinion was a really important moment for the Court of Appeals to remind the state that there are limits and that the rights are inherent to the tribes that predate colonization, that those rights are actually individual held and exercised by tribal members,” Glenn said.

Judge Sarah Wheelock wrote a concurring opinion emphasizing the importance of tribal sovereignty and the rights of tribal members who live on lands where the state exercises some authority.

“It is not just possible, but likely, that another member of a different tribe on a different reservation will be arrested, notwithstanding that possession of cannabis is regulatory in nature and falls within the Tribes’ regulatory authority,” wrote Wheelock. “Our decision today applies in equal measure to all Indian tribes in Minnesota that are subject to Public Law 280.”

Thompson, who could not keep his tobacco shop open over the past couple of years, says he does not have firm plans to re-open at this time.

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