Marijuana, Native Americans

Federal Tribal Marijuana Memo Isn't Just Blowing Smoke

The opportunities for Native American Tribes in the cannabis industry are vast, and many tribes will immensely benefit from cannabis while others will opt out entirely.

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In December 2014, the federal government announced it would not intervene against Native American Tribes that allow for regulated cultivation, manufacturing, and distribution of cannabis on tribal lands. Since that announcement, a number of tribes, including the Mohegan, Suquamish, and Seneca Nation tribes, have indicated at least some interest in tribal marijuana. My law firm is co-sponsoring the first national Tribal Marijuana Conference at the end of this month and representatives from more than thirty tribes will be in attendance.

Specifically, the Department of Justice has stated it will not focus its resources on prosecuting growing or selling marijuana on tribal lands, even when state law prohibits it. This holds true for both medical and recreational cannabis, though the DOJ will enforce federal marijuana laws on tribal lands if the tribe requests it do so. The DOJ tribal marijuana memo (actually dated late October 2014) can be found here.

According to the tribal marijuana memo, the eight enforcement priorities previously outlined in the DOJ’s August 2013 Cole memo will guide federal enforcement of marijuana laws on tribal lands. It is important to note that just like the 2013 Cole memo, the tribal marijuana memo does not change federal law nor does it stymie the federal government’s ability to enforce federal drug laws. Therefore any tribe considering legalizing marijuana should enact and enforce “robust regulations” so as to be in line with the Cole and tribal marijuana memos and to thereby avoid unwanted federal scrutiny or intervention.

In a statement to the media clarifying the tribal marijuana memo, a Department of Justice spokesperson had the following to say:

This policy statement recognizes that Indian country is incredibly diverse, and different tribes will have different perspectives on enforcement priorities that are in the best interest of their community’s public safety . . . . Some tribes are very concerned with public safety implications, such as the impact on youth, and the use of tribal lands for the cultivation or transport of marijuana, while others have explored decriminalization and other approaches.

The federal government’s newly liberal policies regarding cannabis on tribal lands could be a financial boon for a large number of tribes, especially those in states where cannabis is either not yet legal or limited to few medical uses. The tribes in those states may be the only source for legal marijuana for all of the state’s citizens. In states with more advanced cannabis regimes (like Washington and Colorado), the tribes should be able to vigorously compete with legal sellers by imposing lower taxes with just as much product variety. Even in Washington and Colorado, we expect tribes to enact laws relatively more liberal than their surrounding communities, including potentially allowing for open consumption of cannabis at tribal resorts and casinos. In addition, the tribal marijuana memo nowhere prohibits existing non-tribal cannabis companies from conducting business with the tribes or on tribal lands, and already there has been a stampede of non-tribal cannabis businesses seeking to “partner” with various tribes.

The tribal marijuana memo states that tribes “should” consult with the U.S. Attorney in their jurisdiction before implementing tribal-forged marijuana laws. Not every U.S. Attorney is going to be on board with tribes legalizing cannabis and each retains considerable power to stop it. The intersection of federal, state, and tribal law and jurisdiction is complex and we are recommending to our tribal clients that they work closely with their local U.S. Attorney in securing approval of their particular legalization regime.

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The opportunities for Native American Tribes in the cannabis industry are vast and as it has been the case with casino gaming, fireworks, and cigarettes, many tribes will immensely benefit from cannabis while others will opt out entirely.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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