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Attorney: Flandreau Marijuana Charges Highlight Tribal Sovereignty, Jurisdiction Issues

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An expert says drug charges against two non-native men who worked with the Flandreau marijuana operation pose a number of legal questions.

A North Dakota attorney says the case involves issues of tribal sovereignty and jurisdiction between state and tribal governments.

South Dakota Attorney General Marty Jackley brought charges against two men hired by Flandreau Tribal officials to help set up a marijuana operation. Tribal leaders destroyed the crop for fear of a federal raid. One of the consultants pleaded guilty to a drug conspiracy charge.  

Tim Purdon is the former United States attorney for North Dakota. He says whether the tribe, the state, or the federal law has jurisdiction often depends on the type of crime committed, and the race of the suspect and victim.

“For drug crimes like these,  it’s clear that the South Dakota Attorney General's office is viewing this under the laws that allow for the prosecution of “victimless crimes” on the reservation. The law they’re citing  is the law that says in the case of a “victimless crime” on the reservation committed by a nonnative, the state of South Dakota has criminal jurisdiction over that sort of alleged crime,” says Purdon.

Purdon says like states, tribes have the right to explore legalizing marijuana on tribal land. But since marijuana is illegal under federal and state law, tribes need to proceed carefully.

“You have to remember that in Washington state there are tribes right now who have successfully entered the cannabis business and who are engaged in the sale of recreational cannabis. So it’s very different from state to state. Obviously in South Dakota state law does not allow cannabis. That’s been obvious under Attorney General Jackley; that’s been a key variable that’s led to this position,” says Purdon.

Purdon says finding a balance between the tribe’s rights and the rights of citizens along with public safety issues is the challenge between all state, local, and tribal governments.   Flandreau tribal officials have no comment on the charges at this time.

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