Pubdate: Sun, 12 Jul 2015
Source: Argus Leader (Sioux Falls, SD)
Copyright: 2015 Argus Leader
Contact:  http://www.argusleader.com/
Details: http://www.mapinc.org/media/842
Author: Steve Young

AS TRIBE'S MARIJUANA PLAN GOES FORWARD, QUESTIONS REMAIN

Grow Facility CEO Insists Flandreau Sioux Tribe Will Alleviate 
Attorney General's Concerns

Five months from now, according to the plan, Indians and non-Indians 
alike will be smoking marijuana on tribal lands in Flandreau.

The U.S. Justice Department told Indian tribes last December that 
they can grow and sell marijuana as long as they follow the same 
federal conditions laid out for Washington, Colorado and other states 
that have legalized the drug.

For the tribe and Colorado-based Monarch America, hired to design, 
construct and develop a grow facility on the Flandreau reservation, 
that has opened the door to a potentially rich new business 
enterprise - just as the advent of casino gambling did decades ago.

They intend to open by the first week of December, says Monarch 
America CEO Eric Hagen, who adds, with a smile, "Everyone will have a 
merry Christmas."

South Dakota Attorney General Marty Jackley isn't as confident of 
that. While he insists he's having positive talks with Flandreau 
officials about his concerns as they move forward on their project, 
Jackley says the future of marijuana on the reservation isn't so 
black and white.

He called the Justice Department's Cole Memorandum - authored in 
August 2013 by Deputy Attorney General James Cole to address the 
legalization of marijuana in states like Washington and Colorado - a 
complex directive that has created confusion on the tribal front.

While Hagen believes that memorandum allows tribal marijuana ventures 
in any state, Jackley questions where it was meant to apply only to 
tribes in states that have legalized marijuana.

South Dakota isn't one of those states. That said, he believes anyone 
with marijuana in their bloodstream or in their physical possession 
is in violation of state and federal law, including non-Indians on 
tribal lands and Indians who go off reservation.

"I want to encourage tribal leaders to continue to work with state 
authorities to better ensure ... that both Indian and non-Indian 
persons are not put in harm's way by the jurisdiction complexities 
being created by our federal government," he said.

That's not Hagen's perspective. The feds have said they aren't going 
to prosecute the growing or selling of marijuana by state or tribal 
jurisdictions that have legalized it as long as they are doing a 
strong job of regulating that growth and distribution, and addressing 
infractions, he said.

The Justice Department's bigger concern, outlined in eight priorities 
in the Cole Memorandum, is to keep marijuana out of the hands of 
minors. They don't want marijuana revenue going to criminal 
enterprises. They don't want marijuana legal in one state diverted to 
places where it isn't legal.

Tribe 'a safe haven' for people who wish to use

Hagen insists Flandreau will have stricter regulations than any state 
with legal marijuana cultivation and consumption statutes on the 
books now. And because of that, "I think people just need to know 
that when they come on to tribal lands to partake ... that it's a 
safe haven for them whether you're a tribal member or not," he said.

While he believes anybody in South Dakota with marijuana in their 
system or in their possession could be arrested, Jackley doesn't 
envision a situation where law enforcement will simply camp out and 
wait to arrest people coming out of a tribal lounge.

"You have to have a reasonable suspicion," he said. "If something 
looks like it's not right ... if they are staggering, if their eyes 
are bloodshot, if they hit the curb on the way out ... you have to 
have that level of criminal activity afoot, something that rises to a 
level of suspicion."

Simply knowing that someone was smoking marijuana in a tribal lounge 
won't cut it for law enforcement as they watch consumers leave a 
legal setting and cross into a jurisdiction where it isn't legal, Hagen said.

"I'm from Colorado, and I consume marijuana there," he said. "If I 
come into South Dakota and I'm visiting family, now all of a sudden 
I'm considered a criminal because of something I did in a 
jurisdiction where it's legal?

"If they want to arrest me because I have THC (tetrahydrocannabinol, 
the primary ingredient in marijuana) in my system from the state of 
Colorado, arrest me. I'll go to court, and I'll win all day long. 
It's the same with Flandreau. I think it's going to be very difficult 
for the state to prosecute someone like that. We already have a 
plethora of defense attorneys that say, 'If that happens, let us 
know. and we will come and defend those guys.' "

Any arrests and/or prosecutions will depend on the level of 
impairment or criminal activity, Jackley said. That's true of more 
than just marijuana consumption, he said.

For example, a person with a blood alcohol level of .079 is not 
legally drunk when it comes to driving in South Dakota, he said. But 
he or she is driving while legally impaired in Colorado, where that 
level is .05.

"What I'm saying is, I might disagree with (Hagen's) legal 
conclusions," Jackley said. "But obviously they're willing to sit 
down with me face to face and talk through this. And for me, that is 
a positive."

Feds have seized tribe's marijuana before

One of the other big concerns for the Flandreau tribe will be keeping 
track of its marijuana. Again, the federal government has said it 
will go after states and tribes if pot is leaving jurisdictions where 
it's legal and ending up in places where it isn't.

The feds did just that on Tuesday when agents seized 12,000 marijuana 
plants from tribal lands in California. Members of the Alturas 
Rancheria and Pit River tribes had said they were going to start 
growing medical marijuana, the only purpose for which pot can be used 
in California.

But officials in U.S. Attorney Benjamin Wagner's office said this 
week that an investigation of those tribes' cultivation facilities 
"indicates that both are commercial cultivation projects operated 
with the intent to transport large quantities of marijuana off tribal 
lands for distribution at various locations yet to be identified by 
the tribes."

Hagen is aware of that situation but insisted it is different from 
Flandreau's venture, especially with allegations that a Canadian 
cigarette manufacturer was financing the California grow centers.

"It's always been a red flag for both federal and state governments 
when you have a third-party foreign national funding marijuana 
projects," Hagen said. "In addition, there didn't seem to be a plan 
put into place for the distribution of finished products."

Law enforcement in Flandreau say they worry about where the tribal 
marijuana might end up. Hagen said that shouldn't be an issue, not 
with the "radio frequency identification (RFID) inventory and 
tracking system" his company is helping the tribe put in to follow 
marijuana "from seed to sale, ensuring products do not leave designated areas."

"I personally don't believe it will remain in the building," 
Flandreau Police Chief Anthony Schrad said. "You can purchase the 
marijuana in the lounge, but it seems to me it would be very easy to 
remove the RFID tag from the container you purchase it in, transfer 
the marijuana to your own personal vial and leave with it."

It won't be that easy, Hagen insisted, who added that the Flandreau 
tribe has a good track record with security, especially with the 
gaming operation it runs. The RFID system will only enhance that 
security, he said.

"I invite anybody to walk into their casino, go grab a beer and try 
to walk out the door with it, or try to go steal some chips off a 
blackjack table. It's not going to happen," he said.

Patrons will only be allowed to purchase one gram of marijuana at a 
time. Finish that and they can come back and buy another gram, which 
must be consumed in the lounge, Hagen said. "It's like beer and going 
to a bar," he said. "You don't grab a six-pack, then drink one and 
try to walk out the door with the other five. Again, it's just not 
going to happen."

Of course even the most strident efforts don't always reach 
perfection, he acknowledged. "I just read recently that five 
businesses in Sioux Falls sold (alcohol) to minors," Hagen said. "So 
I mean, what's the difference?"

He is confident that non-Indians and Indians alike will be smoking 
marijuana in a safe and legal environment on tribal land before this Christmas.

"People have to look at this as, 'We have a mini-Colorado in the 
state of South Dakota,' " he said. "We can go there, we can consume 
onsite, we're safe to consume and it's 100 percent legal in that 
jurisdiction. The way I see it, anybody who is of legal age will be welcome."
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MAP posted-by: Jay Bergstrom