Tuesday, March 28, 2023

Picuris Pot Patient to Sue Feds

Indian Affairs Faces Suit Over Destroyed Plants


A Picuris Pueblo resident who was targeted by the Bureau of Indian Affairs (BIA) over legal cannabis plants that were confiscated from his home last year has filed a lawsuit against the agency. The suit continues a years-long battle over tribal sovereignty in regard to cannabis legalization in the face of federal overreach.

Busted for Legal Pot

In September 2021, BIA officers raided the home of Charles Farden, a 54-year-old non-Native resident of Picuris Pueblo. Farden has been a Picuris resident since childhood and is enrolled in the New Mexico Medical Cannabis Program. The agents reportedly seized nine cannabis plants that were growing in Farden’s garden.

Personal cultivation of cannabis was legalized in New Mexico the previous June. Under state law adults over 21 can grow up to six mature cannabis plants with a 12-plant cap for households. Six additional juvenile plants are also allowed in each home.

In an interview with The Paper. in December, Picuris Pueblo Gov. Craig Quanchello confirmed that Farden hadn’t broken any tribal laws either. “In 2016 we, as a tribe, created an ordinance which decriminalized cannabis, and we created our own medical cannabis code, and we issued members our cards,” said Quanchello. “In addition to that, we have reciprocity, which allows for other medical cannabis cards to be used—we recognize the state of New Mexico’s medical cannabis card. So there was no violations with us.”

Nevertheless, Farden’s plants were taken by BIA agents.

“When [an agent] asked what I was growing, I said, ‘My vegetables, my medical cannabis,’” Farden told reporters with the Associated Press. “And he was like, ‘That can be a problem.’” The agents seized Farden’s plants and handcuffed him, although he was later released and was never charged with a crime or detained.

Feds Deny Wrongdoing

The BIA provides policing duties for Picuris Pueblo. Quanchello contacted BIA offices to try and clear up the issue following the raid. In a letter to Quanchello, a special agent with the BIA said the agency would not stop enforcing federal cannabis laws on tribal land.

“Prior notification of law enforcement operations is generally not appropriate,” wrote the agent. “The BIA Office of Justice Services is obligated to enforce federal law and does not instruct its officers to disregard violations of federal law in Indian Country.”

While not policy, agents with the Department of Justice have so far followed the so-called Cole Memorandum—an Obama-era directive that was rescinded under the Trump administration—which instructed federal prosecutors to avoid prosecuting cannabis cases in states where its use has been legalized. The Wilkinson Memorandum was issued a year later. It clarified that federal prosecutors were to respond to Tribal cannabis regulation in the same manner as described in the Cole Memo.

But the BIA answers to the Department of the Interior (DOI), which was never subject to either memos in the first place.

Farden’s case was left dangling. He was reportedly never charged with a crime, but the BIA has not admitted any wrongdoing either.

State Strengthens Sovereignty

In March, the state of New Mexico signed an intergovernmental agreement with both Picuris and Pojoaque Pueblos that allows cannabis cultivation and sale on tribal lands. The agreement gave the pueblos complete control over their own cannabis markets and allows them to develop their own regulatory frameworks.

“I can’t prevent the feds or the DOJ from acting any number of ways,” Gov. Michelle Lujan Grisham told reporters while discussing the agreement. “We’re actively working on getting them to reinstate their memos, which is basically guidance telling the DOJ that the sovereign nations’ independence on these issues, related to state law, should prevail.”

State and tribal leaders hope that the agreement will keep the BIA from interfering in tribal cannabis markets, but whether the agency will acknowledge the pueblos laws is still unclear.

Feds Face Lawsuit

Earlier this month, Farden filed a notice of intent to sue the DOI. The Picuris Pueblo resident is seeking $3.5 million in damages from the agency for destroying his medication.

According to the notice of intent to sue: “By unlawfully cutting down and burning Mr. Farden’s medical cannabis plants, the federal law enforcement officers in this case committed an act that is tantamount to these same officers unlawfully entering into Mr. Farden’s home, without a warrant, going into his medicine cabinet and flushing his prescription diabetes medication down the toilet.”

According to Santa Fe New Mexican, Albuquerque-based attorney Jacob Candelaria, Farden’s attorney, alleges that the BIA agents also entered Farden’s property without a search warrant and filed a false report claiming that Farden signed a “consent to search document.”

“These officers didn’t have a warrant to enter or search, let alone seize, property,” they attorney said. “These officers actually violated … BIA policy, which is very clear that when BIA officers are to enforce the Controlled Substances Act, they need to preserve, catalogue and create a chain of custody for all evidence. Here, these officers barged into my client’s property, placed him in handcuffs and had him out in the sun for multiple hours.”

Candelaria’s office reportedly filed a Freedom of Information Act request for the “consent to search” document, but the agency has been unable to produce a copy.

The lawyer also says that Farden, who is diabetic, was denied access to food and water while he was in handcuffs during the raid.

Candelaria told reporters that the BIA raid was evidence of systemic racism. “If you’re a non-Native person engaging in the same conduct Mr. Farden did on non-Native land, your chance of federal prosecution and conviction is next to zero because Congress has prevented the Department of Justice from using any money to enforce the law.”

Neither the DOI or the BIA have commented publicly on the pending case.


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