Last December the Justice Department gave a yellow light to marijuana legalization on tribal land, saying it would treat reservations like states in deciding how to enforce the Controlled Substances Act. Two months later, the very first Tribal Marijuana Conference, held at the Tulalip Resort Casino in Washington, attracted about 400 people, including representatives from 75 or so Indian tribes. They listened intently as speakers (including me) discussed the pros and cons of legalization.
“A great deal more are considering this than I thought would be considering it,” Ken Meshigaud, chairman of the Hannahville Indian Community in Michigan, told the Associated Press. “From an economic standpoint, it may be a good venture the tribes can get into.” Because of their sovereign status, Indian tribes are uniquely positioned to profit from the erosion of marijuana prohibition, although they still face some daunting legal pitfalls.
Start with the federal ban on marijuana, which makes anyone involved in growing or selling cannabis a felon, regardless of his status under state or tribal law. So far the Justice Department has allowed licensed marijuana businesses to operate in states that have legalized the drug for medical or recreational use. But the feds have not made any promises, and that policy is completely discretionary. It can be changed at any time, by this administration or the next.
In an August 2013 memo, Deputy Attorney General James Cole told U.S. attorneys they should focus their efforts on marijuana offenders who violate state law or implicate any of eight “federal law enforcement priorities,” including interstate smuggling, sales to minors, and drugged driving or “other adverse public health consequences.” As long as states adopt and enforce appropriate regulations, Cole implied, the feds will not interfere with newly legal marijuana markets. The same goes for tribal land, according to a DOJ memo published in December.
Deputy Attorney General James Cole (Image: House Judiciary Committee)
Robert Odawi Porter, a Washington, D.C., tribal law specialist who co-organized the Tulalip conference along with Seattle lawyers Hilary Bricken and Robert McVay, says the first task for tribes interested in the marijuana business is to make sure their regulations are strict enough to pass muster with the feds, keeping in mind the Justice Department’s eight priorities. But even if the feds continue to hold back, tribes may need to worry about state marijuana laws.
Under Public …Read More