The Mahnomen County Courthouse in 2023. (Max Nesterak/Minnesota Reformer)
A Minnesota district court judge ruled that the state may prosecute Native Americans on most reservations for possessing large amounts of marijuana, allowing a felony case against a White Earth man to proceed.
The ruling is the first — though likely not the last — to address state law enforcement’s jurisdiction over marijuana in Indian Country since Minnesota legalized its recreational use in 2023.
Todd Thompson, a White Earth citizen, faces a felony possession charge with a maximum sentence of five years in prison and a $10,000 fine for selling marijuana without a license from his tobacco store in Mahnomen on the White Earth reservation.
Mahnomen County sheriff’s deputies and White Earth tribal police raided his store on Aug. 2, 2023, a day after recreational cannabis became legal in Minnesota, and seized about 7.5 lbs of cannabis, 433 grams of marijuana wax and $2,748 in cash along with Thompson’s cell phone and surveillance system.
Thompson asked Mahnomen County District Judge Seamus Duffy to dismiss the charge, arguing that the state doesn’t have the legal jurisdiction to prosecute him.
Under what’s called Public Law 280, Minnesota has the power to prosecute tribal members on certain reservations including White Earth’s for criminal acts but not civil or regulatory violations of state law. Thompson and his attorney, Claire Glenn, argued that after cannabis was legalized in Minnesota, possessing and selling the drug became a regulatory matter, not a criminal one.
The judge, in a ruling issued earlier this month, disagreed. He wrote that the possession of “non-personal, non-recreational amounts of marijuana in public is generally prohibited,” and that just because the state may issue licenses to businesses to sell marijuana, doesn’t mean it’s only a regulatory matter. He pointed to a case in which a White Earth man was convicted of possessing a pistol without a permit on tribal land.
Thompson also argued that prosecuting him for possession of cannabis violated his rights under the United States’ 1855 Treaty with the Ojibwe, which guarantees the Ojibwe usufructuary rights to hunt, fish and gather on ceded lands.
Again, the judge disagreed, pointing out that even Thompson acknowledged marijuana was not used in a ceremonial way in the 1800s, and that treaties guarantee rights to tribes, not individuals. Minnesota’s law does not limit the White Earth Nation’s right to regulate marijuana on their land, the judge wrote.
Thompson, through his attorney, said the ruling was “disappointing, but not surprising.”
“Exercising my rights should not be controversial or complicated. But once again, the state has failed to respect our sovereignty, our constitution, our own rule of law that has existed since long before the state of Minnesota even existed,” Thompson said.
Thompson’s attorney said they are considering their avenues for appeal. Complicating matters is the fact that criminal cases can typically only be appealed after a conviction, which means Thompson could be forced to go to prison before being able to appeal the judge’s ruling.
The potential conviction of a Native American man for selling marijuana without a license would seem to cut against one of the central arguments Minnesota Democrats made in favor of legalization, which was to undo racial disparities in marijuana charges. State Democrats even mandated that a certain number of licenses be set aside for so-called social equity applicants who have been disproportionately affected by the War on Drugs.
Even so, in the interest of public safety, state lawmakers maintained criminal penalties for possessing large amounts of cannabis or selling it without a license.
Thompson flouted those requirements in a direct challenge to state and tribal regulations. Like many Native people, he says he doesn’t believe Public Law 280 is legitimate. He also says the White Earth tribal council — which voted just days before the state cannabis law took effect to legalize adult-use cannabis and sell it from a tribal-run dispensary — overstepped its authority in establishing rules on cannabis sales.
This isn’t the first time Thompson has publicly taunted law enforcement in order to assert tribal sovereignty. In 2015, he was cited for illegally gillnetting on Gull Lake without a permit. Thompson fought the charges, which were ultimately dropped years later after a district court judge ruled that Thompson retained fishing rights on Gull Lake as a citizen of the White Earth Nation.
Thompson also successfully fought a citation by the state Department of Natural Resources for illegally harvesting wild rice on Height of Land Lake in 2023.
Prosecutors initially dropped that case in 2024 but refiled it last August, right before ricing season. Thompson argued the timing and delay was malicious, and on Wednesday, Becker County District Judge Michelle Lawson agreed.
She dismissed the ricing case, ruling that prosecutors unnecessarily delayed bringing the case, which caused Thompson to miss two seasons of harvesting wild rice out of fear of further incidents with law enforcement.