Menominee Indian Tribe v. Drug Enforcement Administration, 190 F. Supp. 3d 843

In May 2015 the Menominee Indian Tribe passed an ordinance licensing cultivation of industrial hemp (≤0.3% THC) and licensed the College of Menominee Nation to grow a research crop on tribal land.
Federal agents raided the reservation on October 23, 2015, seized and destroyed the hemp crop; the Tribe alleges no tests exceeded 0.3% THC.
The Tribe sued for a declaratory judgment that cultivation of hemp on the reservation is lawful under 7 U.S.C. § 5940 (the 2014 Agricultural Act hemp-research exception).
The Tribe advanced three theories: (1) “State” in § 5940 includes Indian tribes; (2) Wisconsin law has no application on the reservation so cultivation is “allowed” under the State’s laws; and (3) the College is an “institution of higher education.”
The Government moved to dismiss; the Tribe moved for summary judgment. The Court held it had jurisdiction to hear a declaratory action but dismissed on the merits.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a declaratory action is permissible	Tribe: § 5940 creates a federal right to be declared; DJA available to prevent enforcement	Gov: DJA is not an independent cause of action; Tribe must identify private right of action	Court: DJA can provide relief here; an actual controversy existed and coercive federal enforcement would present a federal question — jurisdiction proper
Whether “State” in § 5940 includes Indian tribes	Tribe: “State” should be read to include tribes as sovereigns	Gov: Ordinary meaning of “State” is the 50 states unless Congress clearly included tribes	Held: Court rejects Tribe’s reading; § 5940 does not treat tribes as “State” for its purposes
Whether hemp cultivation on Menominee Reservation is “allowed under the laws of the State”	Tribe: Wisconsin law does not apply on reservation (retrocession/revocation history), so hemp is effectively “allowed”	Gov: § 5940 conditions the exception on whether the State’s laws (i.e., Wisconsin law) allow hemp; Wisconsin law prohibits hemp	Held: Because Wisconsin law does not permit hemp cultivation, the § 5940 exception does not apply to hemp grown on the Menominee Reservation
Whether Court needed to reach whether College is an “institution of higher education”	Tribe: College qualifies under § 5940	Gov: Dispute on qualification	Held: Court did not reach this issue after resolving that the state-law condition fails

Schilling v. Rogers, 363 U.S. 666 (1960) (Declaratory relief requires a judicially remediable right)
Med-Immune, Inc. v. Genentech, 549 U.S. 118 (2007) (threatened government enforcement can support declaratory judgment)
McCready v. White, 417 F.3d 700 (7th Cir. 2005) (no private right of action where statute does not confer one)
United States v. White Plume, 447 F.3d 1067 (8th Cir. 2006) (government may seek injunctions to enjoin hemp cultivation)
Monson v. Drug Enforcement Admin., 589 F.3d 952 (8th Cir. 2009) (pre-2014 distinction between legal hemp products and illegal cultivation)
Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985) (statutes involving Indian law construed liberally in favor of tribes)
King v. Burwell, 135 S. Ct. 2480 (2015) (context matters in statutory definitions of “State")
Rice v. Rehner, 463 U.S. 713 (1983) (application of state licensing schemes to tribal contexts)