Hemp for Sovereignty: Scale, Territory and the Struggle for Native American sovereignty

Abstract

This paper considers the question of sovereignty in the context of Native American struggles within the US. In this case, residents of the Pine Ridge Indian Reservation sought political and economic autonomy by growing industrial hemp on the reservation. Their efforts illustrate the importance of geographical scale, territoriality and legal geographies in defining both the question of sovereignty and political struggle in the context of Native American political life, as their activities constitute a larger social movement.

1. Introduction

Lawbreaking may involve petty crime, white-collar crime, serious bodily harm or a simple traffic offence. Often the police are involved. There are hearings, suspects, arrests and, sometimes, convictions. Rarely is lawbreaking part of a larger social movement, although at times it has been. For example, the US Civil Rights movements of the 1950s and1960s are replete with examples of lawbreaking, arrests and criminal indictments (Eggerston, 1995). In 2002, a number of Sioux tribal members broke the law by planting and cultivating industrial hemp. The events of this case focus not on the law that was broken but on what breaking such a law does, not only for our understanding of social movements, but also of geographical scale and territory. In this case, rather than lawbreaking being a tactic of movement participants to illicit a response from various institutions of government, illegally planting hemp was a strategic manoeuvre used to call into question the sovereignty of the US government along with its institutions and territory (for an informative discussion on tactics/strategies, see Eudaily, 2004).

Territories are both symbolic and active in establishing relationships among groups. Rather than simply existing as abstract containers in which social interactions take place, territories themselves often establish conditions under which individuals or groups may interact. While territory plays a role in social interaction, it too is often the object of social interaction. As David Delaney points out, territories exist via a legal context in which the meanings that territories exhibit are stabilised, as well as subject to challenge. This paper first explores such postulates through a case study where the state's assertion of sovereignty over a given territory is called into question. Among the important issues that emerge in this case study are the links between territory and geographical scale (Delaney, 2001).

It has been argued that understanding geographical scale is fundamental to understanding why groups mobilise and what options are available to them once they decide to mobilise (Herod, 1997; Miller, 1997; Cox, 1998; Silvern, 1999; Marston, 2000; Brenner, 2001; Marston and Smith, 2001). While there has been a considerable amount of attention paid to geographical scale recently, much of this research has either addressed the ways in which scale may either help define a unit of analysis (such as the household or the region) or how understanding the interrelations among varying geographical scales may produce a valuable heuristic with which geographers might better understand and describe social change.

The following case study considers the latter point more directly, without abandoning an engagement with other concerns underlying geographical scale. The chief concerns are the ways in which geographical scale intermingles with elements of social contestation to produce a valuable conceptual tool for understanding larger social and political forces.

This case concerns the movement for the legalisation (or decriminalisation) of hemp production on the Pine Ridge Reservation in South Dakota. Those growing hemp at Pine Ridge shifted the scale of the conflict from a static geography of a reservation that is ultimately dependent on the US to set its course of action, to a dynamic interrelation between two sovereigns. By calling into question US drug policy, the hemp growers at Pine Ridge extended the political arena by challenging the jurisdictional scale of the nation-state and of the reservation. In doing so, the soundness of the US nation-state as a territorially coherent entity was called into question.

The Sioux discussed in the case live in or near the Pine Ridge Indian reservation. Located in south-western South Dakota, the Pine Ridge reservation occupies most of Shannon and Jackson Counties. According to the US Census Bureau, in 2003 the percentage of persons living below the poverty line in Shannon County was 35.6 per cent and in Jackson County the percentage was about 26 per cent.1 Moreover, according to the Bureau of Labor Statistics, the 2004 unemployment rates unemployment rates hover around 8 per cent.2 The area is persistently dry and sparsely populated, leaving little room for employment in either the agricultural or services sectors. Although these conditions are not unique to this particular reservation, this case (and the Pine Ridge reservation generally) is unique within the larger history of Native American struggles for civil rights and sovereignty in the 20th century.

Communities on the reservation have consistently sought solutions for the problem of stagnant local economic development. Industrial hemp has many uses and it grows relatively well on the dry western plains; it would be ideal as an agricultural development strategy. The subsequent account discusses the attempts by one family, the White Plume family, to secure the unimpeded prerogative to grow hemp. In the process, it becomes clear that the family's, as well as the tribal council's, interaction with the federal government involves the legal disagreement about the comparison between industrial hemp and marijuana. To a much greater extent, however, this disagreement serves to precipitate a larger debate concerning the sovereignty of the Oglala Sioux Tribal Council and citizens living at Pine Ridge.

This case study is an in-depth consideration of the legal, social and geographical problems associated with the movement for the production of industrial hemp on the Pine Ridge reservation from 2001 to 2004. Much of the discussion here is based on primary legal sources and secondary historical sources, as well as detailed discussions with key informants on the reservation and individuals working with the Hemp Industry Association. Thus, utilising what is sometimes referred to as ‘triangulation’, this case study serves both as a means of articulating primary data, as well as articulating and confirming theoretical notions attached to scale, territory and sovereignty.

2. US Statute, Industrial Hemp and Pine Ridge Oglala Sioux Tribal Ordinance 98-27

The central legal problem for those who wish to grow hemp for industrial purposes is that there is no clear distinction in federal statute between industrial hemp and marijuana.3 Thus, a plant with no psychotropic capacities and that could be used to fashion anything from ropes, to paper, to bricks for constructing homes is placed in the same category as marijuana. The movement to get local, state and national governments to reconsider their policies towards hemp has flourished in the past 10 years. Nonetheless, US policy with regard to hemp is to treat it as if it were essentially the same as marijuana.

According to one member of the Hemp Industry Association, the contemporary contests over the definition of industrial hemp began not with the activities of those interested in exploiting hemp's productive value, but rather with the classification of hemp and marijuana as being effectively the same by the US government under the Marihuana Tax Act of 1937 and carried over into the Comprehensive Drug Abuse Controlled and Prevention Act of 1970. At this point, the issue is that under US statute, marijuana and hemp, because they can (but hemp does not always) contain tetrahydrocannabinol (THC, the psychoactive chemical compound in marijuana that produces the ‘high’), are considered controlled substances and their manufacture, cultivation and distribution are, therefore, illegal under federal law.4

Despite its problematic legal status, hemp has drawn the attention of many activists because it is seen as a viable resource for the production of a variety of industrial goods, while also being considered environmentally sound. Many activists note that the chemical process needed for making wood pulp into paper is unnecessary for making hemp into paper, thus limiting chemical pollution from paper production. Additionally, hemp grows well in a host of environments. This reduces or eliminates altogether the need for potentially harmful herbicides and irrigation.

In the mid 1990s, members of the Oglala Sioux Tribe in Pine Ridge, South Dakota, began exploring the use of industrial hemp. Members of the tribe were looking for an economic development programme that would help to ease the high unemployment rate. Industrial hemp seemed like a perfect and reasonable choice. In June 1998, members of the tribe contacted the US Drug Enforcement Agency (DEA) and enquired about the possibility of growing hemp on the reservation. The response from the DEA was unfavourable. If the tribe were to be allowed to grow industrial hemp, it would be on the DEA's terms; in order to grow hemp, tribal members would have to go through a lengthy permit application process.

In the request to the DEA, tribal members argued that

There are several nations and states, including Navaho, Canada, the United Kingdom, Germany, and Australia, as well as the states of Washington, North Dakota, Minnesota, Wisconsin, Vermont, Virginia, Kentucky, Iowa, Kansas, Colorado, and Hawaii, in the United States, which are currently exploring or actively engaged in developing the potential of such (hemp) production.

The Oglala Sioux Tribe joins with these various national and state governments in recognising that significant environmental and economic benefit may be derived from the renewed development of natural industrial hemp production (Salley, 2002).

At this very early stage the idea of growing hemp on the reservation was also about conferring on the tribe a legal status on a par with other nations and state governments, thus internationalising the issue. The members of the tribe were not seeking to be given a permit by the US ‘national’ government; instead, they sought to be considered as a nation capable of joining other nations in hemp production. Nonetheless, on 28 June, the Department of Justice reiterated it position by saying that the Oglala Sioux tribe must register with the DEA in order to cultivate marijuana under sections 822 and 823 of Title 21 of the US Code, provided for by the Controlled Substances Act of 1970. According to this response, the “manufacture of hemp constitutes the manufacture of marijuana” (Salley, 2002). Again, as noted earlier, the problem of the lack of a distinction between industrial hemp and marijuana proves important in shaping the context of this case, but the requirement for a sovereign tribe to register with an agency of the US federal government also points towards a more fundamental problem.

After about two months, the Oglala Sioux tribal council voted on this issue. The tribe passed and enacted Tribal Ordinance No. 98–27. The ordinance asserted tribal sovereignty over and above federal statute by asserting their treaty rights. This tribal ordinance runs contra to federal statute by asserting that the tribe has the prerogative to grow non-psychotropic industrial hemp on the reservation. At this point the stage was set for a direct conflict between US federal law and tribal sovereignty.

Each side, that of the US government and that of the tribal members, had a particular stake in this conflict. For the US government, acknowledging the tribe's right to make its own decisions concerning hemp policy threatened the coherence of US drug policy and its ability to control activities on reservation land. If the tribal ordinance was respected by the US government, then not only would the members of the Sioux nation be allowed to grow industrial hemp, but their sovereignty to make such a decision without clearance from the DEA would be acknowledged as well. This would affirm that tribal ordinance trumped federal statute and the ability of the members of the tribe to determine their own course with regard to hemp production and, in all probability, many other issues.

Accordingly, this seemingly simple conflict opens a conduit to larger issues of political sovereignty, treaty rights and the construction of geographical scale. In this case, the members of the tribe had an opportunity to construct an alternative meaning concerning the reservation in terms of its relationship with the larger American state. Both sides attempted to negotiate the conflict by expanding its scope. The US government's DEA agents in their affidavit in the US District Court relied on existing federal statutes governing hemp production. The Oglala Sioux, on the other hand, based their case on the Fort Laramie Treaty of 1868.5 Each side of the conflict appealed to different systems of political authority in order to make their claims. The similarity is, however, that both sides expanded the conflict and connected sovereignty to laws governing territory. In the District Court, tribal members argued for the supremacy of the Fort Laramie Treaty over federal statue.

This having been said, it is worthwhile to discuss the Fort Laramie Treaty and its importance in the history of the Oglala Sioux as a matter of establishing historical and contemporary contexts. This gives way to the legal battle in the US Court. The US and the Oglala Sioux have dealt with the question of sovereignty before. More than any other single document, the Forth Laramie Treaty provides for the hemp growers at Pine Ridge an alternative meaning of their territory and what actions they may take within that territory.

3. The Fort Laramie Treaty of 1868

The significance of the Fort Laramie Treaty in the lives of presentday Plains Indians is not so much a question of its historical importance; it is clearly a key legal referent for the claims of White Plume and others. What is less clear, and what has been the case with so many treaties that the US negotiated with the Plains Indians, is to what extent it is relevant. That is, to what extent is such a treaty granted legal significance in presentday federal courts? Since this treaty, like many others, has been ignored or overrun by other federal statutes and court decisions, some authors seem to downplay its importance (Deloria and Wilkins, 1999). Others, noting its importance, maintain that this treaty precipitated a fractionalisation among the Sioux, between those who were willing to settle with the US and those who did not trust the US government and, therefore, remained suspicious about settling (Gibson, 2003, p. 116). Within the Sioux bands whose legacy has been shaped by and is subject to this treaty, conflicts abound to this day about whether or not settlement with the US ultimately benefited the Sioux, was inevitable or presaged much of the social and economic distress experienced by those who live on the reservation today (Frazier, 2000).

Popular non-fiction author Ian Frazier notes, with respect to the Fort Laramie Treaty, that this treaty was not as simple as the US giving some land and provisions to the Western tribes, but that it was a peace settlement. In the years leading up to the signing of the treaty, the US had been in conflict with the Oglala Sioux over access to the Powder River country. At the time, the Powder River area was a prime destination for gold-seekers heading west. It was also prime hunting ground for the Sioux. The Sioux, under Chief Red Cloud, launched a series of attacks against the gold-seekers, known as the Powder River War (1866–68), which is considered by some to be the first war that the US lost (Frazier, 2000, p. 187).

Adding credence to this treaty's importance, Prucha notes that

The treaty set aside the Great Sioux Reserve west of the Missouri River in Dakota, and the chiefs agreed to settle at the agencies and accept reservation life. Much has been made of the land provisions of the Fort Laramie Treaty because of modern concerns of Indians to protect a community land base, but the treaty, like those at Medicine Lodge Creek, was a reformist document aimed at attaining the humanitarian civilizing goals of the Peace Commission—namely, to turn the nomadic warriors into peaceful farmers (Prucha, 1994, p 283).

More recent scholarship on Indian treaties indicates a shifting focus to the importance of the peace settlement treaties of the late 1860s and early 1870s (St Germaine, 2001). According to St Germaine (echoing Prucha), the Fort Laramie Treaty was very different from other treaties of settlement in that, in addition to being a peace treaty, it was meant to be a long-term plan for the livelihood of the Indians who agreed to its terms. Also, by being a treaty negotiated between two governing bodies, it de jure acknowledges the sovereignty of all those party to its negotiation. The very fact that the US took the treaty route as a means of concluding a war and establishing peaceful relationships, as well as guarantees between both parties, helps to establish its recognition of the sovereignty of the Sioux people. This treaty, regardless of the importance assigned to it by some legal scholars, is of singular relevance to the hemp protesters at Pine Ridge and their litigation, specifically, in terms of what it provided for with regard to agricultural independence and sovereignty (Matthiessen, 1991, pp. 144–145; see also p. 55).

Regarding agriculture in particular, the Fort Laramie Treaty specifies under Article 8 that

When the head of a family or lodge shall have selected lands and received his certificate as above directed, and that agent shall be satisfied that he intends in good faith to commence cultivating the soil for a living, he shall be entitled to receive seeds and agricultural implements for the first year, not exceeding in value one hundred dollars, and for each succeeding year he shall continue to farm, for a period of three years more, he shall be entitled to receive seeds and implements as aforesaid, not exceeding in value twenty-five dollars. And it is further stipulated that such persons as commence farming shall receive instruction from the farmer herein provided for, and whenever more than one hundred persons shall enter upon the cultivation of the soil (Kapplen, 1868).

Additionally, the Fort Laramie Treaty mandates reciprocal rule of law between the US and the new Indian Territory. Article 16 further stipulates that

The United States hereby agrees and stipulates that the country north of the North Platte River and east of the summits of the Big Horn Mountains shall be held and considered to be unceded Indian territory, and also stipulates and agrees that no white person or persons shall be permitted to settle upon or occupy any portion of the same; and it is further agreed by the United States that within ninety days after the conclusion of peace with all the bands of the Sioux Nation, the military post now established in the territory in this article named shall be abandoned, and that the road leading to them and by them to the settlements in the Territory of Montana shall be closed (Kapplen, 1868; emphasis added).

Both Articles 8 and 16 established the relationship that the US would have with the unconquered lands (note the use of the term unceded in Article 16) of the upper plains. The US made a generous peace settlement which not only would be rescinded later in history, but which also serves as the basis for the claims that the tribe is making in the federal court with regard to their ability to grow hemp for industrial purposes. This treaty established not only the territory of what would be termed the ‘Great Sioux Reservation’, but explicitly notes that those land are unceded. In other words, those lands are not part of a trust or any other form of proprietorship on the part of the US government; thus the treaty cannot be subordinated to federal statute (Newcomb, 1994). Additionally, the treaty provides for materials necessary to sustain long-term agricultural production. Under the treaty, not only should hemp production be a matter of tribal policy, in fact such production should be assisted by the US government in the form of seeds, tools and the like. The fact that the government in this case is not only interrupting hemp production, but is in fact taking tribal members to court indicates a complete disregard for the provisions of this treaty.

In the documentary material that follows, it becomes clear that the US argument centres on the legal status of marijuana. In juxtaposition, the argument put forth by the White Plumes focuses on the treaty and its provisions. For both sides, however, the heart of the argument is about sovereignty, regardless of the rationale either side uses to make their claims. Tracing out the treaty language and its importance in the next secton, then, will shed further light on the White Plume position.

4. Contemporary Context of the Fort Laramie Treaty

The resuscitation of this treaty in the federal court system was an intervention, a complication and an interruption of the system of federal jurisprudence from the bottom–up. That is to say, while there is no question that the federal government has exercised tremendous authority over Native Americans across the past two centuries, resuscitating a treaty claim not only substantiates a legal protection and justification for present actions, but also interrupts the coherency of federal authority and thus constructs an alternative geographical scale—that is, a political scale that offers alternatives and political possibilities not heretofore recognised by the US court system.

The tribe made an attempt to answer the US government's claims neither by denying that hemp was grown on the reservation nor even by making an issue of the difference between industrial hemp and marijuana. The extension of the conflict (lawbreaking) to a question of sovereignty means not simply escalating the terms of the conflict; it means contesting the constructed geography of the reservation. The authority of the US government is contested in this case by using the Fort Laramie Treaty as an alternative frame of reference for sovereignty. The presentation of this alternative is denoted well in the case arguments that White Plume et al. make in their responses to the evidence and injunctions brought against them. This being the case, it is appropriate to look at the on-going litigation. Here, the treaty materialises as important in understanding the actions that the members of the tribe are taking.

5. United States v. White Plume et al.6

The first actual planting of hemp, in accordance with the Tribal Ordinance, began in May 2000. At that time, Alex White Plume planted hemp on some of his family's land near his residence. In July, DEA Special Agent Colin Clark approached White Plume and acquired approximately 107 grams of hemp/marijuana.7 The purpose of acquiring this sample was to determine whether or not White Plume was planting benign hemp or psychotropic marijuana.

The procured sample was catalogued by the FBI and sent to the University of Mississippi Potency Monitoring Project, which is at of The National Center for Natural Products Research, also based at the University of Mississippi. In an affidavit filed by federal agent John Salley, this sample is mentioned. However, what is not directly discussed in his affidavit on behalf of the federal government, but which is supplied in the affidavit, is that the labs in Mississippi indicated that there is no THC content (0 per cent) in the sample that White Plume supplied to federal agents (Salley, 2002).

Within about a month of the THC tests, federal agents gained search warrants on the hemp plots. On 24th August 2000, as specified in search warrants, they seized approximately 6155 hemp plants and shortly thereafter those plants were destroyed. By the growing season of the following year, a number of correspondences between federal law enforcement had occurred concerning the legality of destroying the hemp, but nothing significant came of it. In the following July, White Plume had agreed to allow a search on his land in exchange for immunity from prosecution on the condition that he would not be involved in the 2001 planting season. Undaunted, Percy White Plume (Alex's brother) planted a field that year and on 30 July 2001, DEA agents, once again, eradicated the field.

The White Plume family, along with supporters from on and off the reservation, continued to plant hemp. The August 2002 growing season was the first season when federal agents did not eradicate the hemp. That crop was sold to a Kentucky-based buyer. This success was countered when the White Plumes were served with papers by the DEA calling for a permanent injunction against the White Plumes entering the hemp plots. The success of this season and the following action on the part of the federal government led to a series of motions and counter-complaints.

6. In Court

The events following the August 2002 growing season marked the beginning of litigation in this matter. Up until August 2002, White Plume had never been formally charged with any violation of the law. At this point, however, the federal government asserted it authority. How it did so and the responses by Alex and Percy White Plume and others are telling. Through reading the briefs, affidavits and evidentiary material, one observes that hemp as a stand-alone issue transforms into a more complex, layered conflict over sovereignty and political representation. Moreover, the complexity of this conflict begs addressing the geographical scale of the conflict.

On 9 August 2002, the US District Court of South Dakota filed a complaint for “declaratory relief, temporary, preliminary, and permanent injunctive relief”, which means that they were filing for a permanent rather than temporary injunction against the hemp growers.8 An injunction in this case would bar the growing of hemp on the reservation and also bar anyone from entering the present field. In this complaint, the US government claimed that Alex White Plume et al. were in violation of the Controlled Substances Act.

In this complaint, the federal government also asserted the supremacy of the Controlled Substances Act, the DEA's ability to investigate under that act and the federal court's jurisdiction under that act (United States v. White Plume et al.). The government laid out its claims, wherein they persistently referred to the cultivation and planned distribution of marijuana by those indicted (Alex and his brother). The claims presented by the court were the basis for the three counts under which White Plume et al. were indicted. They were charged with “the possession, manufacture, distribution and possession with the intent to distribute marijuana, a Schedule I controlled substance”. Further these actions are seen as on-going by the court and “likely to continue unless enjoined by the court.” Additionally, the court charged that the defendants “have maintained tracts of federal trust land, of which they are beneficial owners for the purpose of manufacturing and distributing marijuana” United States v. White Plume et al.

In the defendant's answer to the court, and after denying all counts of the government's charges, the defendants argued that the “cultivation of industrial hemp (and not the drug ‘marijuana’), being an agricultural economic development effort by a Sioux family on Sioux land, is a protected activity within ‘Indian Country’ by agreement between the United States and the sovereign Lakota Nation (of which the Oglala are a part) under the Fort Laramie Treaty of 1868”.9 They further noted that, with regard to the Controlled Substances Act, “Congress did not intend to abrogate the agricultural provisions of the treaty by this Act and the Act by its statutory language does not abrogate such treaty provisions. Unless expressly abrogated by Congress, Treaties or provisions thereof constitutionally remain the Supreme Law of the Land”.

The defendants add further support to their claims, while also enriching the question of geographical scale, by noting section 832 of Title 21 of the US Code, which states that “the Attorney General ‘shall’ register and thereby authorise the manufacture ‘consistent … with United States obligations under international treaties … in effect on May 1, 1971’” (original emphasis). This is part of a series of arguments made by the defendants. In all cases, they were asserting the priority of the treaty that the US made with their sovereign Lakota nation. In fact, in their counter-claim, they argued that not only has the US government illegally seized their property, but that

The seizure and destruction of the industrial hemp crop by Plaintiff [US government] has and continues to threaten irreparable harm by inhibiting the ability of the defendants to strive for agricultural economic development by the production and sale of mature hemp stalks and seeds, and therefore fiber, oil or cake made therefrom in violation of the rights of the Lakota and the obligations of the United States under the provisions of the Ft. Laramie Treaty of 1868 (Answer and Counterclaim, United States of America v. Alexander “Alex” White Plume, Percy White Plume, Their Agents, Servants, Assigns, Attorneys, and All Others Acting in Concert with the Named Defendants, 2002).

The defendants in this motion argued that there should be an injunction served against the US to keep them from interfering with the economic process and the potential benefits thereof involved in the commercial production of hemp.

These matters surrounded the temporary injunction against White Plume et al. issued in late August 2002. The court's resolution was to grant the injunction that would prevent the defendants from entering the hemp field. Regardless of whether the field was seeding spontaneously or not, so long as the defendants had nothing to do with it, then they would not be in violation of federal law. It is interesting that the court made this decision when they could have simply pursued criminal proceedings against those members of the tribe responsible for growing the hemp. The advantage of a civil proceeding is that a jury trial does not occur. A number of activists, such as Tom Ballanco and Milo Yellowhair, noted that the ‘powers that be’ did not want a criminal proceeding to occur because a jury drawn from people in western South Dakota might be sympathetic to the Oglala Sioux's attempt to grow hemp on the reservation and might want to see the statute (or at least its application) changed (personal interviews, summer 2003).

Along with this litigation, in October 2002 the District Court filed a motion for summary judgement to the end of gaining a permanent injunction against White Plume et al. In the brief, the district attorney had to specify the material facts of the case. In doing so, he opened the door to a number of contentious claims by the tribe regarding the status of the Sioux in federal court, particularly their status as a sovereign nation. In the defendants' (White Plume et al.) brief, they filed an opposition to the Plaintiff's statement of material facts. The dispute concerning material facts revealed a great deal about what is at stake in this case. The next section takes up the defendants' opposition to the material facts and provides a vantage point from which to understand how the treaty is being used in this case in order to elevate the conflict from one concerning provisions about whether or not a group of people will be able to grow industrial hemp to one that defines the terrain of contested sovereignty claims on the reservation.

7. The Defendant's Statement of Material Facts

White Plume et al. filed their opposition in December 2002, about a month and a half after the motion for a permanent injunction had been asked for by the government. In their opposition, White Plume et al. argued that the government ignores the distinction between industrial hemp and marijuana. They maintained that the tribal ordinance as written, which enabled the growing of industrial hemp on the reservation, also constitutes an assertion of sovereignty. Additionally, they argued for the supremacy of the Fort Laramie Treaty. They state that

Plaintiff's (US) pursuit of an injunction violates Article 8 of the Treaty which obligates to the contrary: the United States “shall” provide a head of the family which “intends in good faith to commence cultivating the soil for a living … seeds and agricultural implements” (Defendants' Opposition to Plaintiff's Statement of Material Facts and Defendants' Statement of Material Factions in Opposition to Summary Judgment, United States of America v. Alexander “Alex” White Plume, Percy White Plume, Their Agents, Servants, Assigns, Attorneys, and All Others Acting in Concert with the Named Defendants, 2002).

Of course, seeds here would include hemp seeds, because the “Oglala Sioux Tribal Council Ordinance No. 98-27 noted the distinction between marijuana, the drug, and industrial hemp, the non-drug commodity, as expressly recognised by the United States in international agreements including: the 1961 Single Convention on Narcotic Drugs, the North American Free Trade Agreement (NAFTA), and the General Agreement on Tariffs and Trade (GATT)”.10

The treaty provides the Sioux with an opportunity to use the US's own words against their claims. Moreover, the claim acknowledges and brings to bear international agreements. One can look at this as a form of ‘jumping scale’ (Swyngedouw, 1997)—that is, moving from one system of authority at the US district court level and asserting the priority of agreements made in higher systems of authority, in this case international governance. However, there is a recursive relationship between the tribe and the appeal towards international adjudication on the matter of hemp. Jumping scales then may be too simplistic a rendering of what is going on. In this case, rather than globalising the local—erasing its autonomy and with that producing a new politics of scale, with the state as a mediator as outlined in the ‘glocalisation’ thesis—this instance internationalises scale (Swyngedouw, 1997). Because the US has made international agreements concerning other sovereign states, and the Oglala Sioux consider themselves sovereign, the US is being bound by its obligations under such agreements.

Here, the nation-state is re-situated relative to other authoritative institutions, such as international agreements. Not only does this divest the nation-state of some of its authority by re-situating it, but it also enhances the sovereignty claims of sub-state actors, such as the Sioux nations. This is not to say that state sovereignty is a zero-sum game that is played out at varying geographical scales. Sovereignty is not simply a matter of two or more oppositional nations within a state vyeing for autonomous, coherent and authoritative control over a given territory, with the outcome a complete loss for one side and a total victory for another. It is a constant matter of extending or contracting the scale of authoritative control, thus turning the conflict from one which concerns the relative status of hemp or the Fort Laramie Treaty to one concerning sovereignty.

The fact that the defendants' opposition takes the tack that it does, that it internationalises the hemp question, situates that debate in the context of sovereignty. This case offers an example of how not just shifting the scale of the contest, but also the nature of shifting scales in the first place, marks a very different tactic for those in the movement. Here the opposition to the Plaintiff's Statement of Material Facts internationalises scale; simultaneously putting the US and the Sioux on equal footing as nations. The extent to which the Sioux ‘jump’ a scale is the extent to which the US as a coherent governmental entity is pulled down in a somewhat amusing, but nonetheless apt, game of scalar leapfrog. That is to say, no longer is this a case of a sovereign conferring an engagement space on a domestic dependant entity, but it is a contest among sovereign entities that, if the Sioux are going to be taken as sovereign, must be negotiated on equal footing—as it supposedly was in 1868.

8. Sovereignty, Spaces of Engagement and Geographical Scale

Geographical scale and sovereignty emerge in the documentary evidence attached to this case as two important political issues that are linked by struggles of defining which set of laws (that of the Sioux or that of the US federal government) will have authority over a given space. Making the case for Sioux sovereignty necessarily means challenging the scale at which the US authority may meaningfully be asserted. In this sense, claims of sovereignty necessarily concern geographical scale.

8.1 Sovereignty

Sovereignty in this case clearly refers to a given group of people having the prerogative to consider for themselves what are right and good political actions and then vesting some set of political institutions with the authority to adjudicate those actions in the form of legitimate law. In this case the tribal ordinance (98–27) is a sovereign text. Neither this text alone nor the decision-making process that created it (regardless of whether or not it is authoritarian, representative or plebiscitary) is enough to secure its unproblematic application.

Thus, while institutions (tribal councils, for example) are necessary for the articulation of sovereign power into civil life, they are themselves alone not sufficient. Iris Young points out this very problem. She argues that the institutions of a given state are not only subject to review by other states but are subject to internal demands for legitimacy. Accordingly, “for a state to have final authority implies that no other state and no transnational body has the authority to interfere with the actions and policies of a sovereign state” (Young, 1990, p. 248).

Young underscores the role that both internal and external politics play in understanding sovereignty. In this case, however, which sovereign authority is external and which is internal is a pressing question. Are the Sioux an internal, culturally distinct unit within the larger fabric of the US nation-state that demands acknowledgement of its political sovereignty? Or are the Sioux the “other state” of which Young speaks, interfering with the legitimacy and sovereignty of the US nation-state? Lastly, is the relationship reversed and is the US nation-state the “other state” that is interfering with Sioux sovereignty? The court documents discussed previously are all documents from a US court. Could these matters not as easily been solved in a Sioux court? The fact that the site of legal adjudication presumes the superiority of the US as the site of authority in this case, also suggests that the creation of a reservation as a distinct territorial entity by another complicates its claims for sovereignty.

If one were to assume that the Sioux tribal ordinance is not sufficient, what manoeuvres might be available to this group in order to place them in a tactical position wherein their voices may be heard? While it is clear that sovereignty is what is at issue in this case, as made explicit in the documentary evidence, what is implicit is the role and importance of geographical scale as an important means by which those invested in hemp growing might make their claims.

8.2 Spaces of Engagement

The White Plume case demonstrates a number of important points concerning the political construction of geographical scale. At the most fundamental level there is a concern over the imposition of federal law as it relates to industrial hemp production and distribution. The wording of federal law maintains a link between industrial hemp and marijuana that is not there; namely, that industrial hemp is psychotropic. The projection of federal statutory law into the area of hemp cultivation vis-à-vis the Controlled Substances Act is testament to the state being able to project itself downward into local areas.

There are two issues at stake concerning the political construction of scale as it relates to sovereignty claims. The first relates to how a group emerges from a dependent space to a space of engagement. The second concerns issues of territory. In both cases political geographers have made significant contributions towards understanding the politics of scale. Properly understood, scale is an important resource in people's struggle for sovereignty.

The state's ability to maintain legitimate authority over the governed is central to understanding the role of the state in the production of geographical scale, as well as groups' possible responses. Understanding the political construction of geographical scale requires understanding the manoeuvres of the state. In this case, the state certainly sets the stage for collective action on the Pine Ridge reservation, not only by expanding the scope of marijuana law, but also by establishing treaty relationships with a group of people thereby conferring upon them recognition of sovereignty.

As previously noted, asking why the legal disputes discussed earlier are not attended to in a Sioux court is a reasonable question. Considering this question not only forces one to focus on the sovereignty question, but also makes clear a specific problem that concerns sovereignty, territory and scale. Sovereignty, as mentioned previously, necessarily involves states acknowledging each other's legitimate authority to manage affairs within their own territory. The government of the US, through coercive means such as destroying hemp plots on the reservation, is able to signify its power in the situation. What the US government cannot do, however, is defuse the movement for sovereignty because the White Plumes and their supporters are able define the question in terms of scale and territory.

First, since the reservation is circumscribed by other territory controlled by the US and due to the US government's willingness and demonstrated ability to use coercive means to assert its will (if not its sovereignty), the hemp growers at Pine Ridge are in a clearly dependent space. Kevin Cox (1998) develops the notion of “spaces of engagement” and “spaces of dependence” in order to address similar problems.

Cox explicitly argues that geographers interested in scale should pay careful attention to the state, since it “corresponds (geographically) to a nested hierarchy of discrete, enclosed jurisdictional spaces” (Cox, 1998, p. 1). Cox understands that geographical scale, while a manifestation of state authority, also serves to mediate local and state politics. Accordingly, he theorises spaces of dependence, which

are defined by those more-or-less localized social relations upon which we depend for the realization of essential interests and for which there are no substitutes elsewhere; they define place-specific conditions for our material well-being and our sense of significance (Cox, 1998, p. 2).

Spaces of dependence are scalar and are the domain of local politics and local social relationships. Localities, for Cox, are active and, therefore, are spaces themselves. The spaces that may be formed by social groups are, according to Cox, “spaces of engagement”. Such spaces are characterised as being those spaces that localities carve out politically in order to engage the dependent spaces in which they operate.

Cox notes that the state is important in understanding dependence; however, the rationale is that the state and the institutions thereof must maintain their sovereignty by defining the terrain of dependence—that is, by continually creating dependent spaces, such as that of the reservation itself. Although the state may define the terrain of dependence, it does not define the terrain of resistance or engagement. In enacting Tribal Ordinance 98–27, the Sioux Tribal Council transformed the more-or-less squiggly lines on the map of the state of South Dakota that define the territory of the reservation into a localised space for engaging the US government, for making claims against that government and for asserting their own sovereignty.

Engagement spaces, spaces where territories become active sites of social resistance, are localised, situated in particular contexts in order to challenge their dependency. The Pine Ridge case is a distinct variation on this point. At least in theory, the authority of the US government is on par with that of the Sioux. In this case, it is easy to place the Sioux in a largely (but not purely) dependent space. Thus it is difficult to argue that the reservation exists purely at the pleasure of the federal government. The relationship between the federal government and many tribes has been ostensibly one of sovereignty with very real imposed limitations—which, of course, means that it is no longer authentic and rarely efficacious sovereignty, but that which increasingly may be viewed as possible site of territorialised engagement.11

As noted previously, the de facto hierarchical relationship between the US and its courts versus the Sioux represents at least one form of dependency that is both territorialised and legitimated legally. Both the drafting of the tribal ordinance that allows hemp cultivation and the planting the hemp itself, signal an interruption of this hierarchical, dependent space. James McCarthy, while discussing neo-liberalism and legal relationships under NAFTA, makes a similar point. McCarthy notes that

Actors instead attempt to reconfigure the content of sociospatial organization at established scales over time, using the resources provided by existing scale arrangements, as an indirect or gradual pathway towards more profound reconfiguration of relationship between scales than could be pursued directly (McCarthy, 2005, p. 738).

The manoeuvres of the hemp growers in this case support McCarthy insomuch as mobilisation groups of various kinds may use the resources available to them. By going through the US court system, the hemp growers are using the hierarchical arrangement of scales to their advantage. This action represents, at least in part, the ‘reconfiguration’ that McCarthy discusses or the similar “spaces of engagement” described by Cox. Despite the difference in terminology, both authors address the point that scales are reconfigured in relation to existing dependent relationships. The sovereignty issue in this case serves only to highlight the dependent nature of the scalar relationship and also to illuminate the manner in which groups may, through many different tactics of protest, utilise their marginalised dependence to craft resistance scales.

In the development of the conflicts in this case, which ultimately concern constructing alternative political scales, the construction of such political scales is necessarily a question of sovereignty, be that sovereignty over the land, the plant, the state, the body, etc. Claims concerning sovereignty in this case are also claims about both territory and the law. The Sioux offer up an alternative political scale, confounding the present territorial relationships in the US. This reflects precisely the cleavage between the present territorial relationships and their possible alternative legal meanings.

Moreover, in this case we can see social movement tactics that are very different from those associated with the Civil Rights movement of the 1950s and 1960s. In both cases, the movement participants engage state institutions; however, in the Pine Ridge case, this engagement is redefined in terms of sovereignty. This is important because the movement's actions utilise geographical scales, vis-à-vis “spaces of engagement” as a political resource. The specifically territorial and scale components of this protest differentiate its tactics from those of more established movement organisations and actors.

9. Legal Meanings and Social Movement

Delaney introduces the relations between territory and law in Blomley et al.'s The Legal Geographies Reader (2001) by making the point that

Territorial structures, from the micro-spaces of, say, racially segregated seating assignments on city buses to those implicated by reference to globally inclusive international system of states are bounded spatial entities. Boundaries mean. They signify, they differentiate, they unify the insides of the space that they mark. What they mean refers to the constellations of social relational power. And the form that this meaning often takes—the meaning that social actors confer on lines and space—is legal meaning. How they mean is through authoritative [emphasis added] inscription of legal categories, or the projection of legal images and stories on to the material world of things. The trespasser and the undocumented alien, no less than the owner and the citizen, are figures who are located within circuits of legally defined power by reference to physical location vis-à-vis bounded spaces (Delaney, 2001, p. xviii).

This case demonstrates two points that Delaney makes. First, it demonstrates that territories may bind together many things within their spaces, but one of the things that they bind together are meanings about what that space is, as well as what that space may become. The reservation functions this way. The documentary evidence locates the struggle in a particular historicised space. Without the particular history of conquest, treaty-making and treaty reversal, the entire context of the conflict would be lost. Namely, those territories have specific meanings and those meanings are, in large part, both the subject and object of much of the adjudication in this case.

The matter of scale is not the same as the matter of who controls a given territory, but it is a matter of maintaining political authority at varying scales within the nation-state. That is, authority is not authority unless there is a system of legitimation, and that system is geographically specific. What may be considered legitimate in one place and at one scale may not be at another. The legitimate authority of the US government on the reservation is very different from that of the legitimate authority of the US government in Washington, D.C. or Hartford, CT.

The first distinction is that territorial boundaries and scale are not synonymous and that the ‘where’ of authority is an important point of contestation in this case. Likewise, this case demonstrates the ability for challengers to arise from the shadows of the nation-state and under their own cloak of sovereignty. This necessarily means that the terms of engagement are contingent on the crafting of meaning into bounded, nascent, legal spaces, thus further underscoring Blomley et al.

The Sioux challenge is one where the acknowledgement of tribal sovereignty is crucial. The evidence shows that the members of the tribe who pursued the hemp issue were/are acutely aware of the problem of sovereignty and the necessity of making it a central issue in the formulation of both tribal policy and their defence in the federal court.12 In doing so, they acknowledge the authority of the US court, although at least in theory they do not (or should not) have to do so. The tactic of going into the court is one where the defendants are able to use the forum of the court against itself. That is, they put themselves in a position of being able to make the sovereign decide its own lack of sovereignty on its own terms, provided that it is consistent with the law—and therein one finds the problem.

States need legal boundaries to give their status as sovereign nation-states meaning when compared against other sovereigns. This meaning is not maintained when that state must cede some portion of its territory to another sovereign. So, for the US to acknowledge Sioux sovereignty, it would have to alter the set of meanings that it has established for itself over the years. The state in this case would no longer be a territorially coherent entity with a coherent set of meanings and ideals upon which to base its status as a nation-state capable of establishing authoritative relationships with those that it governs. This is not to say that the US government as a meaningful state would cease to exist, but it would have to negotiate its existence with another sovereign. Could the Sioux establish their own naturalisation procedures? Yes. Could they exercise visa restrictions over their territory? Yes. And the source of legitimacy for such actions need not have anything to do with the US.

Thus, conflicts over legal meanings are important in the construction of geographical scale. Specifically, the state here crafted all of the themes or facets of scale discussed earlier. The more coherent the scale of the state, the more easily its authoritative relationships with the governed are maintained and potentially expanded. Nevertheless, the challenge to such maintenance is precisely the motivation for the movement to proceed in the way that it does. The condition of the state's exercise of sovereignty—that of expanding the coherence of its authoritative relationship within its territorial continuity—provides at least a part of the power of the state, while also providing an opportunity for protests. In short, inasmuch as boundaries hold territory together, territory holds states together and provides an area for the expression of their authority, which may often be at the expense of some other set of sovereigns.

The challenge to the maintenance of the state's authority comes in the form of producing something like a space of engagement. The activists use their internal (tribal council) system of government as a legal and geographical mechanism to challenge the coherence of the state's authority on the reservation. They do so by attempting to reterritorialise the space of the reservation—that is, reshape the legal meanings of authority in that space. In essence, this is the crafting of alternative scalar relationships, addressing the state on new terms with alternative ideas about authority and who should govern.

However, there is an aspect to their actions that is strongly epistemological. The offering up of a space, in this case the no-longer-existing space of the Great Sioux Reservation as it was guaranteed under the Fort Laramie Treaty, as well as the contemporary space of the reservation, begs for a different understanding of the people who live there. Recalling the basic idea of scale concerning the ‘level of resolution’ on a map, the notion here is that the social lives of groups are both informed by what they understand as their surroundings, their local space, and informed by the spaces imposed upon them. By crafting the reservation as a contested space, a space where groups protest, the activists offer up an alternative epistemology of that space. While it is necessary for them to engage the state, it is also a priority that they produce a separate knowledge about the reservation. In other words, along with the state's coherency, there is a concomitant challenge that involves asserting the reservation as a legitimate scale—that is, a place not only where political knowledge is crafted, but where such knowledge may be asserted authoritatively in the context of legal contests.

Examining this case through the lens of geography, particularly by invoking the legal, territorial and epistemological components of geographical scale, provides valuable insights into indigenous peoples' sovereignty claims. The material presented here is germane to this specific case, but has implications both for how geographers may understand geographical scale in a legal and territorial context, and for how geographers may contribute to understanding the diversity of claims and actions made by many indigenous groups, as well as other social movements. In particular, rather than protest alone being a political resource as it is often understood in the context of the Civil Rights movement, space—in particular, territory and scale—may be seen as new political resources that provide additional spaces of engagement not offered by conventional protest measures.

In addition to benefiting greatly from the review process, this paper is much improved due to the kind suggestions of Colin Flint, Reuben Rose-Redwood and Seán P. Eudaily. The field work for this paper was funded in part by a Ruby Miller research grant administered by the Penn State Department of Geography. The IRB number covering part of the research for this paper is IRB No. 15732, approved 17 April 2003 by The Pennsylvania State University Office of Research Protections. While the author thanks reviewers and friends, any spurious conclusions or errors of fact remain the author's sole responsibility.

Notes

1. See http://quickfacts.census.gov/qfd/states/46/46007.html and http://quickfacts.census.gov/qfd/states/46/46113.html.

2. See http://data.bls.gov/map/servlet/map.servlet.MapToolServlet?state = 46&datatype = unemployment&year = 2004&period = M13&survey = la&map = county&seasonal = u.

3. For a brief discussion of this point see Ballanco, 1995. For a more detailed analysis of the history of marijuana and hemp law, see Bonnie and Whitebread, 1970; also refer to the statutory language of Title 21 of the United States Code, sections 822 and 823.

4. It is important to note that I focus this discussion around federal law. In South Dakota, like many other states in the US, hemp cultivation is illegal; however, because this case deals with tribal members acting on reservation land, it is solely within the jurisdiction of federal courts. The legal actions in the case are exclusively placed in federal courts and, therefore, examining the particular laws of South Dakota, while these are worthwhile in their own right, offers little insight into this case.

5. The ‘Fort Laramie Treaty of 1868’ is the conventionally used short form of the full title, which is Treaty with the Sioux—Brulé, Oglala, Miniconjou, Yanktonai, Hunkpapa, Blackfeet, Cuthead, Two Kettle, Sans Arcs, and Santee—and Arapaho, 1868 (http://www.yale.edu/lawweb/avalon/ntreaty/nt0001.htm). From here on, I refer to it as the Fort Laramie Treaty. There is a Fort Laramie Treaty of 1851, as well; however, when I use the short-hand ‘Fort Laramie Treaty’, I am specifically referring to the 1868 Treaty.

6. The phrase ‘et al.’ is used throughout; however, it is important to clarify who ‘et al.’ is. Here, White Plume et al. are the defendants in the case of United States of America v. Alexander “Alex” White Plume, Percy White Plume, Their Agents, Servants, Assigns, Attorneys, and All Others Acting in Concert with the Named Defendants, 2002.

7. Here, I use the notation ‘hemp/marijuana’ because what comes to be of contest in court is whether the samples taken (not just on this occasion, but also on others) were marijuana or something similar but markedly different—that is, hemp.

8. Complaint for Declaratory Relief, Temporary, Preliminary and Permanent Injunctive Relief, United States of America v. Alexander “Alex” White Plume, Percy White Plume, Their Agents, Servants, Assigns, Attorneys, and All Others Acting in Concert with the Named Defendants, 2002.

9. Answer and Counterclaim, United States of America v. Alexander “Alex” White Plume, Percy White Plume, Their Agents, Servants, Assigns, Attorneys, and All Others Acting in Concert with the Named Defendants, 2002.

10. Ordinance of the Oglala Sioux Tribal Council of the Oglala Sioux Tribe, Ordinance No. 98-27.

11. The examples in the case vary decidedly from those used by Kevin Cox. Nevertheless, his notions of spaces of engagement and spaces of dependence provide a valuable heuristic. The intention here is to build on his ideas in new ways, to extend their value and further articulate the underlying theoretical frameworks on which his ideas are based.

12. Although this case study focuses primarily on legal documentation, interviews conducted with key informants during research for this piece further underscored this claim. For example, during the course of a prayer ceremony, one key informant remarked, “it's alright to plant hemp and as a sovereign nation we can assert that right. And as a family that's our intention to assert our sovereignty and plant hemp for our future generations, for my grandchildren and for my great-grandchildren”. This sentiment was far from out of the ordinary and, in this author's judgement, is/was representative of other informants' thoughts.