Tribal Control: Native Americans Free to Legalize Cannabis

On
December 11, 2014 the Executive Office for the United States Attorneys and the
U.S. Justice Department revealed that on October 28, 2014 it had directed each
U.S. Attorney to consult with Indian Country tribes on a “government to
government basis” to evaluate cannabis enforcement activities in Indian
Country. This announcement attracted a great deal of media attention and the Internet
was abuzz with excitement. Media outlets touted headlines such as “Native
American reservations get federal OK to grow, sell marijuana” and “Native
American reservations now free to legalize marijuana.” However, such media
reporting failed to take a close look at the actual memorandum and grossly
overstated its meaning.

The
memo explains that due to the increased number of states legalizing
recreational and medical cannabis, a number of tribes had requested guidance on
the enforcement of the Controlled Substance Act on tribal lands. Based on the
request for guidance, the Attorney General’s Native American Issues Subcommittee
reviewed the Cole memorandum and considered its impact on Indian Country.

The
Cole memorandum issued in 2013 outlined proper prioritization of cannabis
enforcement and specifically listed eight federal law enforcement priorities
where the Department will focus its limited investigative and prosecutorial
resources. However, the Cole memo came with a clear disclaimer that “nothing
herein precludes investigation or prosecution, even in the absence of any of
the factors . . . where the investigation serves an important federal interest.”

Indian
Country includes numerous reservations and tribal lands with diverse sovereign
governments, many of which traverse state border and federal districts. The
October 28 memo goes on to recognize that the United States Attorneys should
recognize that effective federal enforcement on Indian Country, including cannabis
enforcement, requires “consultation with our tribal partners in the districts
and flexibility to confront the particular, yet sometimes divergent, public
safety issues that can exist on any single reservation.” The memo lastly states
that the United States Attorney should consult with the affected tribes on a government-to-government
basis. What this truly means, according to a D.O.J. spokesman is that the
agency will deal with tribes as individualized governments and that the policy
statement recognizes that “some tribes are very concerned with public safety
implications, such as the impact on youth, and the use of tribal lands for
cultivation and transportation of marijuana, while others have explored
decimalization and other approaches.”

This
kind of language is a far cry from the headlines we read and an interpretation that
tribes can just go ahead and start growing and be immune from prosecution. In
the simplest terms, what this memo does is it creates an opportunity for tribal
leaders to reach out to the US Attorney and work hand-in-hand to craft and
implement policies to cultivate and distribute cannabis. Each US Attorney would
also be tasked to place the subject of cannabis legalization on reservations in
the context of each tribes Indian Country Initiative Public Safety plan. Any
implementation of legalized cannabis on reservations will proceed on an
individualized and bureaucratic pathway. A tribe would need to have a
governmental green light before they start to grow.

However,
even given this more realistic interpretation of the memo, there are many
tribes who are very disheartened and unhappy with the proverbial thumbs up to
bring cannabis onto their lands. Troy Eid, Chairman of the Indian Law and Order
Commission, advised President Obama and Congress on tribal criminal justice
issues stated that there was no consultation between the administration and
tribes as to what they wanted to do. Eid, who also represents 70 tribes in his
legal practice stated that while some of his clients might be interested in
exploring cannabis options, many more are upset and worried that this D.O.J.
memo gives the federal government an excuse not to enforce drug laws. “Many
tribes want robust prosecution. Indians have struggled with addiction, so many
are sensitive to making it easier to obtain drugs of any kind.”

As
of right now, any tribes that wish to explore the idea of cannabis on their
lands must take a slow and steady approach and consult with the appropriate
lawyers, policy makers and government officials before they plant their seeds. The
end result is that the federal government still has a tremendous amount of
control over cannabis on reservations.