In a Haze: The Uncertain State of Marijuana on Tribal Lands

By Alyssa Jones

With the dawning of the 2016 Presidential election, questions about future of marijuana are beginning to emerge, and the candidates have not been shy about vocalizing their stances. Recently, a Democratic candidate, Hillary Clinton, spoke out about marijuana’s current classification as a Schedule I drug. Clinton believes marijuana should be considered a Schedule II drug, which the federal government recognizes as having a medically accepted use. Alternatively, Republican candidate John Kasich reaffirmed his position against marijuana legalization during his appearance on “The Late Show.”

While opposition may still materialize in the future to stop this change, there exists a current trend towards the legalization of marijuana because many states believe it will stimulate their economies.  Currently, four states plus the District of Columbia have legalized the recreational use of marijuana, and many more states are on the verge of doing so.

Not surprisingly, many Native American tribes are also looking into potential marijuana operations. They, too, view marijuana as an opportunity for economic empowerment. One tribe is even looking into opening the first “marijuana resort” where guests can freely smoke while enjoying several other amenities. The benefits of these business ventures are plenty. However, there are looming legal concerns that may cause Native Americans to think twice before initiating their operations.

Marijuana is still illegal at the federal level and is considered to be a dangerous drug. However, in 2013, the Department of Justice (DOJ) issued the Cole Memorandum, which stated that the federal government would likely not intervene in a state’s marijuana regime so long as it met certain conditions. It was not immediately clear what applicability if any, this memorandum would have to Native  American territories. Then, in 2014, the DOJ issued the “Policy Statement Regarding Marijuana Issues in Indian Country.” This policy statement allowed Native American territories to implement their marijuana regimes so long as they adhered to the same guidelines as provided for the states in the Cole Memorandum. The bottom line is that the federal government is most likely to intervene in a tribe’s marijuana regime when any of its eight priorities is disturbed. These eight priorities are as follows:

“Preventing the distribution of marijuana to minors; Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; Preventing the diversion of marijuana from states where it is legal under state law in some form to other states; Preventing state-authorized marijuana activity from being used as cover or pretext for the trafficking of other illegal drugs or illegal activity; Preventing violence and the use of firearms in the cultivation and distribution of marijuana; Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and Preventing marijuana possession or use on federal property.”

While any of these priorities would provide a reason for the authorities to intervene, the largest threat to the current state of affairs is the concern over possible marijuana diversion into a state where it is not legal. Native American tribes in New York, for example, could run into trouble if they farm marijuana on their lands that then slips outside of the territory. It may be nearly impossible to contain all of the marijuana to Native American lands, especially when grown for commercial purposes. Territories surrounded by states that have legalized marijuana have a lower probability of running afoul to this priority.

Another potential legal issue results from the sale of marijuana to tribes or states. What would happen if a tribe wanted to sell their product to a state that has legalized marijuana? What about to another tribe that has legalized marijuana? How would the product be transported? The question remains whether transporting marijuana through a state where marijuana is still illegal to its ultimate consumer would garner federal intervention. If the current trend towards state legalization continues, this issue will become moot as transporters can design routes solely through legal states. In the meantime, however, this remains problematic for Native Americans wishing to sell their marijuana.

Additionally, there is catchall mentioned in the memorandum that preserves the right of the federal government to intervene when it serves an important federal interest. This catchall applies even if one of the eight priorities is undisturbed, leaving intervention to the federal government’s sole discretion. For example, the federal government began investigating marijuana operations on Native American territory located within California. This site arguably did not implicate any of the eight priorities, but the federal government still interfered.

Although, individual states do not have a right to enforce their marijuana laws on Native American territory, the federal government has made it clear that they reserve the right to do so. Some have argued that, historically, Native American territories are separate nations that should not be subjected to any federal intervention at all. Still, it seems, at least for now, that Native Americans will have to comply with the federal guidelines leaving the status of marijuana on tribal lands uncertain.