USDA Clarifies Industrial Hemp Production for Indian Tribes

May 28, 2019


Update as of October 31, 2019: The General Counsel’s legal opinion pertaining to the cultivation of hemp under the 2014 Farm Bill remains in effect for that program. Hemp production under the 2018 Farm Bill is governed by the regulations published in the Federal Register on October 31, 2019. The regulations at 7 C.F.R.§990.2 provide that States and Indian tribes may submit plans for hemp production in the State or territory of the Indian tribe for which it has jurisdiction. A State or Indian tribe may not regulate or prohibit hemp production in areas it does not have jurisdiction. For more information visit our Hemp webpage.

Original Notice:

This notice clarifies avenues for Tribal participation under authorities in the 2014 Farm Bill to grow industrial hemp for research purposes during the 2019 growing season. Under the 2014 Farm Bill, an Indian tribe can enter into a partnership or contract with an institution of higher education or a State department of agriculture both within or in a different State than the one in which the Indian tribe is located to produce industrial hemp on the tribe’s land. For an Indian tribe to be eligible to do so, the State in which the Indian tribe is located and the State in which the institution of higher education or State department of agriculture is located both must allow the production of industrial hemp. 

The 2014 Farm Bill authorizes State departments of agriculture and institutions of higher education to grow and cultivate hemp for the limited purpose of conducting research under pilot programs.  However, the definition of “State” that applies to section 7606 does not include Indian tribes. Indian tribes independently have not been able to initiate their own hemp programs under the 2014 Farm Bill and instead have had to obtain a license or authorization under a state program.

This ability under the 2014 Farm Bill to obtain a license or authorization from a State department of agriculture or institution of higher education located in a State other than the State of one’s residence extends to persons and entities that are not affiliated with an Indian tribe.  As is the case with Indian tribes, a State department of agriculture located in a State that allows for hemp production may license or authorize an individual or entity that is not located in that State to produce hemp for research purposes, provided that the State where the individual or entity is located also allows hemp production.  Likewise, an individual or entity may partner or contract with an institution of higher education in another State under the same conditions.

The law remains unchanged in that Indian tribes, individuals, and entities located in States that do not permit hemp production are ineligible to participate in the growing or cultivation of hemp under the 2014 Farm Bill program. 

#