By Joe Morey
News Editor
LCO Tribal Governing Board (TGB) member Tweed Shuman and LCO Assistant Attorney General Dyllan Linehan attended the tribal consultation with the United States Department of Agriculture (USDA) on Dec. 11 in Las Vegas with many tribal leaders from across the country. The consultation was to discuss the Hemp Interim Final Rule and how it affects tribes.
In Shuman’s address to the USDA, he noted how the 2018 Farm Bill was enacted on Dec. 20, 2018 but the final rule was not published until Oct. 31, 2019.
“While the USDA worked to ensure that tribes and states would have the opportunity to submit regulatory plans for approval in time for the 2020 planting season, the 2019 planting season was lost,” Shuman said. “During this time, some states produced hemp outside of the USDA framework and licensed growers under state laws. Further, while many states took advantage of the opportunity to produce hemp under the authorities of the 2014 Farm Bill, tribes did not have the same autonomous opportunity. To participate in the production of hemp under the 2014 Farm Bill, tribes had to partner with a state institution of higher education or department of agriculture in order to be eligible.”
Shuman explained how this led to Tribe’s being left behind and now seek an equal opportunity. He said LCO has yet to begin hemp production.
“I bring this up today, not to harp on the past, but because it is important to remember that tribes are sovereign nations and should not be left behind or disadvantaged in a federally implemented economic development opportunity. As you are surely aware, tribes have a unique relationship with the federal government whereby the federal government owes a trust responsibility to Indian tribes,” Shuman went on. “In moving forward, we must remember the discrepancies of the past to ensure they are not repeated. As the USDA revises the Interim Final Rule, the opportunity exists for the USDA to work within the confines of the 2018 Farm Bill while acknowledging the unique attributes of Indian tribes.”
Shuman shared with LCO News some of the Tribe’s concerns and comments about the regulations within the interim rule he would like implemented and addressed. He said one of the rules requires tribes to clip plants prior to harvesting so that they can be tested to ensure their THC content remains under .3% or the harvest must be destroyed. The testing must be done at a Drug Enforcement Administration (DEA) certified lab, which are limited in quantity and currently have back logs, and this is prior to the tribes adding to the back logs when they start testing their crops, explained Shuman.
“Whereas state producers have more planting locations available since they utilize fee lands within the state, tribes are confined to the boundaries of their reservations under tribal plans, keeping the production location to remote areas,” Shuman said in his address to the USDA. “If tribes had the ability to utilize laboratories that were not registered with the DEA for the testing of hemp crops, there would likely be more laboratories available and closer to the reservation. This would decrease the time and resources tribes would need to expend just to transport the hemp crops to the laboratory for testing.”
Shuman stated to the USDA regarding destruction of the crop if it is tested and is over .3%, “Instead of destruction, tribes, as sovereign nations and primary regulators over hemp within tribal jurisdictions, should have the opportunity to dispose of these crops in other ways so long as they are used for non- consumptive and non-commercial purposes. This could result in the hemp crops being used for farm usage or research, or the ability to engage in other remediation procedures. This type of effective disposal would allow farmers to help mitigate lost revenue. And, as tribes, like LCO, are newly entering the industry, any chance to enhance profits and cut down on lost revenue would surely be appreciated.
Shuman told LCO News, “Part of their rule states we only a 15-day window between clipping the plant and running the test to actual harvest of the crop or we have to do it again. This could result in long delays by the time we actually harvest our crops. I spoke in strong support of extending that window due to unforeseen inclement weather and/or delays in testing results that could inadvertently cause a rise in THC content which would force the entire crop to be destroyed.”
Shuman noted that all tribal leaders want a 30-day window and USDA officials were open to that.
Shuman also noted the threat of state and local law enforcement authorities interfering with transportation of the Tribe’s product after its harvested. He said once harvested and dried, the hemp plants will have to be transported off the Reservation to another Reservation where it will be processed. The worry is that the plants could be seized between Reservations.
“We don’t need any local or state government agencies in our way,” Shuman told the LCO News. He said he asked the USDA to alert state and local governments on the regulations so they don’t interfere.
Finally, Shuman asked the USDA to consider several recommendations.
“We respectfully ask the USDA to consider the unique attributes of tribes and tribal sovereignty when finalizing the Industrial Hemp Interim Final Rule,” Shuman said. “If tribes really are to take on the primary regulatory authority of hemp production on the reservation, there should be flexibility within the hemp provisions to allow tribes to truly exercise this authority and end up on even footing with states in the production of hemp. It is important for the USDA to remember that tribes are sovereign nations and should not be left behind or disadvantaged in a federally-implemented economic development opportunity. As you are aware tribes have a unique relationship with the federal government whereby the federal government owes a trust responsibility to Indian tribes. We need to protect and implement our sovereignty here so states have no jurisdiction over our hemp business.”
Shuman concluded, “We also respectfully ask the USDA to continue to hold tribal consultations and work with tribes when reviewing and finalizing the Interim Final Rule. As discussed above, the federal government and its agencies, like the USDA, have a unique legal relationship with tribal governments. We believe that an extended consultation and comment period will help to ensure that there is adequate time to collect and implement feedback from tribes, as the hemp regulations are important to shaping the outcome of the USDA’s hemp production program and will clearly have an effect on tribes and their economic success.”
Shuman told LCO News the TGB will soon approve a resolution and submit their hemp plan to the USDA by Dec. 31.
LCO TGB member Tweed Shuman (center) with other tribal leaders addressing USDA officials