Minnesota judge rules that state can still prosecute marijuana crimes on tribal land

A judge has ruled that Minnesota can still prosecute tribal members on reservations over marijuana possession crimes, even with the state’s legalization of cannabis.

Todd Thompson, a 54-year-old White Earth Band of Chippewa member, was charged in April 2024 with felony possession after authorities executed a search warrant on his tobacco store, Asema Tobacco & Pipe Shop in Mahnomen, on Aug. 2, 2023, the day after marijuana became legal for adult use in Minnesota. The officers seized about 7½ pounds of marijuana and just under 1 pound of cannabis concentrates, according to the criminal complaint.

In December, Thompson filed a motion in Mahnomen County District Court to dismiss his case, arguing the state lacks jurisdiction to prosecute him. But on March 3, District Judge Seamus Duffy denied the motion. The ruling was first reported by the Minnesota Reformer.

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One of Thompson’s two arguments was that tribal members have a sovereign right to marijuana possession and use through an 1855 treaty between the Ojibwe people and the United States.

His attorney, Claire Glenn, wrote that because Ojibwe people have a sovereign right for ceremonial use of asema (tobacco) and other medicinal plants, those protections extend to marijuana possession.

“Just as tobacco evolved as a more modern form of asema, cannabis has likewise become a modern way to exercise Anishinaabe cultural and spiritual beliefs around asema,” Glenn said.

Duffy said Thompson failed to show that marijuana possession was envisioned as one of the rights when the treaty was made in the 1800s.

Duffy also cited a 1992 Minnesota Court of Appeals case, in which the judges ruled that “treaties with the Indians ‘gave no vested rights to individuals’ because the government dealt with the tribes and all promises were made to the tribes.”

Thompson’s second argument was that Minnesota cannot prosecute him because of Public Law 280, which states that Minnesota can only prosecute tribal members who live on certain reservations for criminal acts, and not for civil or regulatory matters.

Although it violates state law to have an excess amount of marijuana, Glenn argued that marijuana possession should not be criminal because many civil penalties have been put in place for cannabis sale violations since the state began its legalization process.

“Given this sweeping legislative about-face, it is now the case that Minnesota generally allows marijuana possession, subject to regulation, rendering it a civil-regulatory matter,” Glenn wrote.

Duffy again disagreed with the defendant’s argument, saying past cases indicate that marijuana possession is ‘clearly criminal.’"

The judge went on to say that Thompson had a “high degree of blameworthiness” by possessing a large amount of marijuana “well over the limit for public spaces.”

Through his attorney, Thompson said that the result 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 long before the state of Minnesota even existed,” he said.

Outside of Thompson’s case, Minnesota’s Native American tribes have been the first operators allowed to open a handful of dispensaries so far while the state works to process other nontribal cannabis business applicants. Gov. Tim Walz’s administration has been negotiating compacts with 10 of 11 Minnesota tribes that could give them an early foothold in cannabis businesses outside of reservations as well.