Published December 28, 2019
FLANDREAU, S.D. — On December 27, 2019, the Flandreau Santee Sioux Tribe of South Dakota received one of the first federal approvals of tribal regulatory authority over hemp cultivation on Indian lands under the state/tribal hemp provisions of the 2018 Farm Bill. To date, no state and no other federally recognized Indian tribe had achieved this milestone.
The 2018 Farm Bill removed hemp from the Controlled Substances Act and authorized the U.S. Secretary of Agriculture to issue federal licenses to cultivate the product commercially in the United States. The act also authorized those states and federally recognized Indian tribes that wish to assume this federal responsibility in their own territories to prepare and submit a tribal or state regulatory plan to the U.S. Secretary of Agriculture for approval. To gain this federal approval, that state or tribal plan must meet a detailed and very specific set of federal criteria.
“We congratulate the Flandreau Santee Sioux Tribe on this historic achievement, and we are very honored to have played a role in helping the Tribe redraft and submit its post-regulatory plan,” said Patty Marks, an attorney with Fredericks Peebles & Patterson LLP.
“The Flandreau Santee Sioux Tribe and Fredericks Peebles & Patterson plan to work with tribes and with USDA over the next year on implementation of the hemp provisions in the 2018 Farm Bill in Indian Country,” Marks added. “The next year provides a test drive of the USDA’s interim final rules, and we plan to help navigate application of those rules in Indian Country.”
Flandreau sent its initial plan to the U.S. Secretary of Agriculture in March 2019, but that plan was not reviewed by the USDA, which argued that it needed to develop and publish federal regulations prior to reviewing and approving any state or tribal plan. After numerous consultations, Flandreau sued the USDA over this delay but was unsuccessful in overturning the USDA’s position.
“If tribes want to ensure that federal USDA licenses are not issued on their Indian lands, it is recommended they act quickly to notify the USDA of their intent to prepare and submit a tribal regulatory plan in the near future,” Ben Fenner, an attorney with Fredericks Peebles & Patterson LLP, advised.