MANDERSON, S.D. - Twenty-five federal agents in 11 sport utility vehicles descended at dawn on a 1 1/2-acre field of industrial hemp just four miles north of Manderson.
Agents in bulletproof vests surrounded the field, as two small-engine planes and one helicopter flew reconnaissance overhead.
When Lakota landowners, Percy and Alex White Plume, part owners of the field, went directly to the site, they were met with lethal resistance.
"I said, 'What do you think you're doing?' and an FBI guy raised a machine gun and pointed it directly at me," Alex White Plume said .
The agents arrived at 6 and by 8:30 a.m. they had confiscated virtually all the hemp plants. "They used these strange kind of weed eaters with metal teeth like a saw," White Plume said.
The federal agents left a field of 6-inch stubble as the legacy of their Aug. 24 visit.
Before leaving, agents deposited a copy of a search warrant with the White Plume family. It identified the location of the field and specified the number of plants to be taken as 3,820
On that same day, 40 miles to the south and west, another industrial hemp field belonging to the Slim Buttes Land Use Association was confiscated as well. No arrests were made at either location.
Two days later, on Saturday - the day originally scheduled for the start of a four-day harvest with ceremonies - the Wa Cin Hin Ska Tiyospaye gathered at the field. Twenty or so family members surveyed the damage and discussed possible responses. A family count of the number of stubbled stalks tallied 30,200 Alex White Plume said.
Tiyospaye lawyer Thomas Ballanco had filed a motion in court the previous day to have the plants returned.
"We invested $9,000 in that field. Our whole family, my sisters and brothers, were depending on that crop to get us through the winter," White Plume said.
The 49-year-old traditional Lakota believes he acted in good faith. "There are some core treaty and government-to-government issues at stake here."
In 1998 the Oglala Sioux Tribe passed Ordinance 98-27 which set guidelines for distinguishing between marijuana and industrial hemp, and established the rules whereby tribal landowners could legally grow, harvest and sell industrial hemp.
Before planting its crop, Wa Cin Hin Ska Tiyospaye formally invited U.S. Attorney Ted McBride and local BIA superintendent Bob Ecoffey to the planting, White Plume said. Ecoffey declined to attend. McBride said he had no record of the invitation, and that he would not have attended. Invitations and notifications were also sent to various tribal politicians and the OST Public Safety, citing the tribal ordinance.
Tribal Vice Chairman Wilbur Between Lodges and Public Safety Director Everett Little White Man say no contact, informal or formal, was made with the OST tribal government prior to the DEA/FBI raid. White Plume said that when he requested help from the tribal government, he was told that he should probably get a lawyer.
"The tribal attorney general can call directly to (U.S. Attorney General) Janet Reno and request assistance over this," White Plume complained. "But we're getting no help from the IRA (Indian Reorganization Act) government." White Plume said he also requested assistance from the local BIA superintendent. "Monday, he basically told me to get my own attorney, too."
White Plume said he is contemplating a lawsuit. "We did actually harvest some of our hemp. From what was left behind we were able to put together three-and-a-half bundles. I'm not sure what it's worth, but after we get it sold we'll be able to fix the value of what was taken."
The tiyospaye also plans to form both a defense and offense committee.
One course of action members agreed on was to demonstrate in front of the Federal Building in Rapid City where the U.S. Attorney's office is located. A district judge will rule within 10 days on whether or not the tiyospaye will get its crop back.
"The timing is critical," said White Plume, "because the plants will quickly decompose."
Informed that the tiyospaye was receiving no help from tribal government, White Plume's attorney said, "It doesn't surprise me about the BIA, but I am surprised by the tribe. He (White Plume) was only carrying out the tribal ordinance."
Ballanco is the same lawyer who helped the tribe craft its legal language in Ordinance 98-27. The California lawyer was instrumental in the passage of OST Resolution 00-13, enacted in April. It is a memorandum of advice to help those who wish to implement Ordinance 98-27, Ballanco said .
Asked about the pending legal battle, Ballanco cited the 1868 Fort Laramie Treaty and said, "I think it's going to go well. I think it's going to stop before we even get to an indictment. There exists a botanical and legal difference between marijuana and hemp that is recognized by the tribe."
More optimistically, he added, "I think this is going to open it up for growing industrial hemp throughout Indian country.
"When the treaties were entered into, these were nation-on-nation agreements. These rights we're talking about are imbedded into the treaties. When the United States entered into the 1868 treaty, they basically sued for peace. They were trying to negotiate a way to end a war and they made some nation-on-nation promises in that way," said Ballanco.
"You have to go with the sense of the treaty signers. There's no doubt that American Horse and Red Cloud could have gone right from the treaty meeting and planted some industrial hemp."
Ballanco also cited past Indian case law that has gone before the Supreme Court.
"The Supreme Court has this notion that at the time of the signing of the treaties the doctrine of abrogation of treaties was in effect," Ballanco said. "That doctrine states that Congress can unilaterally vote to abrogate any treaty with an Indian tribe. Of course that's not true.
"The only saving grace of this doctrine is that it means Congress has to expressly abrogate a treaty - or specific portions of a treaty - which they haven't done.
Ballanco pointed out that in the 1800s industrial hemp was a staple agricultural crop and that in the 1868 treaty Congress was trying to get the Indians to switch over to an agricultural base.
"There's feral (wild) hemp growing on the reservation today. It's here now because it was planted way back then. And unless Congress changes the treaty these DEA laws do not apply," Ballanco said.