1st marijuana raid since legalization in Minnesota reveals complicated legal landscape

[AUDIO LOGO] CATHARINE RICHERT: This is Minnesota Now. I'm Catharine Richert filling in for Cathy Wurzer. The day after recreational marijuana became legal in Minnesota, sheriffs, deputies, and tribal police raided a man's tobacco shop on the White Earth Reservation in northern Minnesota. The next day, they searched his home. It's been over three months. And still, no charges have been filed against the man. That's because the state may not be able to prosecute tribal members for marijuana crimes on reservations.

Max Nesterak has been reporting on this story. He's the deputy editor for the Minnesota Reformer. Welcome to Minnesota Now, Max.

MAX NESTERAK: Thanks for having me on.

CATHARINE RICHERT: So lay this out for us. Why do police say they raided this man's tobacco shop and home? What crimes are they alleging?

MAX NESTERAK: So Todd Thompson, who is a member of the White Earth Nation, was very public about opening his weed business or beginning to sell marijuana from his tobacco store. He posted videos on Facebook live and on the tobacco store's Facebook page inviting people to come down and purchase cannabis.

He said he doesn't need the tribe's permission or state permission to sell cannabis with a license, without a license. He thinks he just has the right to do that under the Minnesota Chippewa tribe constitution and treaty rights.

So he went ahead and did it out in the public. And that's when authorities raided his shop the next day. Unclear what the charges could be, but under Minnesota law it's illegal to sell cannabis without a license. The White Earth Nation also passed an adult-use cannabis code saying it's illegal to sell cannabis without a license. He never had a license. He also said that law enforcement took seven pounds of cannabis from his shop, which is well over the two pounds people are allowed to have in their homes and two ounces they're allowed to have in public or on their person under Minnesota law.

CATHARINE RICHERT: So he is saying he hasn't violated any law. He thinks he can do this. But this is where things get a little complicated, right? The law at the center of all of this is Public Law 280. Can you tell us what that's all about?

MAX NESTERAK: Sure, so Public Law 280 was passed by congress in 1953. It was part of the Indian termination era when congress was trying to really dismantle tribal governments and assimilate native people and end that government to government relationship with tribes.

And what Public Law 280 did was in certain states give state police and county sheriffs and local law enforcement the power to enforce state crimes by tribal members on reservations. And White Earth is one of those Public Law 280 reservations where Mahnomen County sheriffs, local law enforcement have the authority to enforce state laws against tribal members on the White Earth Reservation.

CATHARINE RICHERT: So has the state said anything about this? Do they have any perspective on this situation?

MAX NESTERAK: The state has been mum on this. I reached out to the Mahnomen County attorney who would be prosecuting the case. He said they're optimistic they could-- they'll have an update on the case or have the issue resolved in the coming weeks. We'll see what happens with that. So I'm watching closely.

The tribe also has jurisdiction. White Earth police assisted in the raid. And under the adult use cannabis code, it says that the White Earth medicinal marijuana-- I'm trying to see if I can get this right. It's the White Earth Medicinal Cannabis Control Commission, I think I got that right, would be able to destroy illegal marijuana and levy fines against him. The code doesn't enumerate what those fines are.

I should note that White Earth, like the state is also setting up its permitting system. So there's not really a system in place now to get a license. And that was part of Todd Thompson's argument is he's saying, well, White Earth is opening their dispensary about a half mile away from my store. They have a monopoly. And they're saying you need to get a license, but there's no way to get a license. And that's part of why he, again, went out and said, in his mind, to assert his rights to be able to sell cannabis.

CATHARINE RICHERT: Yeah, I think what I hear in all of this, Max, is this is really uncharted territory for the state. I mean, this is this is a lot of new stuff all at once. And I think we've seen communities all around Minnesota sort of grappling with like, well, where do we allow it, and setting ordinances that might limit where people can use it and all of that. Lots of questions. I mean, what do you think this particular situation says about just the broader challenge of implementing all of this?

MAX NESTERAK: You know, that's an excellent point. And legalizing cannabis has been just such a monumental task for the state to undertake. There are so many questions about how you're going to license stores, who's going to be able to sell it where, and then now you have federal Indian law complicating that even further.

And I may hear listeners asking, well, you said Public Law 280 gives law enforcement and state prosecutors the authority to prosecute state crimes by tribal members on reservations. So isn't what Todd Thompson did a crime? Because selling without a license could lead to prison time under Minnesota law. And selling or possessing more than two ounces outside your home, if it's in a quantity large enough, could also lead to prison time.

And just to clarify, the point there is there was a Supreme Court ruling that found that if the state law is prohibitory in nature, so it's mostly banned, then it's criminal. But if it's mostly allowed subject to regulation, then it's civil.

So the crux of the issue here from my understanding with the county prosecutor will be determining-- and the courts-- will be determining are marijuana crimes prohibited, are they criminal, or now that it's legalized, is it mostly allowed subject to regulation where you can buy it, where you can sell it, so forth? It seems to me from my reading and other legal experts that I've talked to that it's a regulatory issue now that it's legal across the state, not a criminal one.

CATHARINE RICHERT: So does Todd Thompson intend to challenge the boundaries of 280?

MAX NESTERAK: We'll see. I talked to his-- he does have a lawyer now who I talked to. And she pointed out that criminal defense is by nature reactionary. So they're waiting to see if he gets charged with a crime or what the tribe, any action that the tribe may try and take against him.

Obviously, it's a politically fraught issue for the tribe to go after one of its members for doing something that, you know, it's selling cannabis half a mile away. That said, there's reasons why the industry is regulated. And part of the push to regulate cannabis was to make it safer to say, OK, well, we'll test it. We'll make sure it's safe. It's not laced with anything dangerous. It doesn't have dangerous pesticides on it.

And when I talked to White Earth tribal chairman Mike Fairbanks, he pointed out how much money the tribe spends to have its cannabis tested to ensure that it's safe for public consumption. And you can't guarantee the same safeguards are in place if anybody can sell it from their shop or their house from anywhere. I asked Todd Thompson, hey, where did you get your cannabis that you sold? Did you cultivate it yourself? Did you get it from somewhere else? And he didn't comment on that.

CATHARINE RICHERT: Right, it sounds like a really complicated situation, so we'll continue to watch your reporting and see what comes next. That was Max Nesterak. He is the deputy editor for the Minnesota Reformer. And you can read the rest of his reporting at Minnesotareformer.com.