Marijuana, Native Americans

Mixed Smoke Signals For Tribal Marijuana From DOJ

Why have so many Tribal marijuana experiments been met with DOJ resistance? Is the DOJ treating Tribes more harshly than it treats the states?

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In 2014, the Department of Justice (DOJ) issued an enforcement memo addressing how Native American Tribes should go about marijuana legalization. Though that memo neither legalizes marijuana for Tribes nor makes any changes to federal drug laws, it provides that Tribes will essentially be given a pass (like states) to legalize marijuana in accordance with current DOJ marijuana enforcement priorities.

Why then have so many Tribal marijuana experiments been met with DOJ resistance? Is the DOJ treating Tribes more harshly than it treats the states? Or is it that so many Tribes have failed to comply with the tenets of the federal tribal marijuana memo?  It’s some of both.

The DOJ tribal memo provides as follows:

Indian Country includes numerous reservations and tribal lands with diverse sovereign governments, many of which traverse state borders and federal districts. Given this, the United States Attorneys recognize that effective federal law enforcement in Indian Country, including marijuana 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 . . . Consistent with the Attorney General’s 2010 Indian Country Initiative, in evaluating marijuana enforcement activities in Indian Country, each United States Attorney should consult with the affected tribes on a government-to-government basis.

This memo sounds like the DOJ is open to working with Tribes that are willing to abide by the eight enforcement priorities set out in the 2013 Cole Memo. And so long as a Tribe first consults with the appropriate U.S. attorneys regarding its legalization plans and so long as those plans include the “robust regulations” required by the Cole Memo, the DOJ will allow that Tribe to legalize, just as so many states have done with both recreational and medical marijuana. But that has not happened in the real world.

First, there was the Pit River raid in July of this year. In that case, federal government authorities, including the DEA and special agents with the Bureau of Indian Affairs (BIA), raided cannabis cultivation operations on the Alturas Indian Rancheria and the XL Ranch in Modoc County, California. According to the U.S. Attorney press-release, “[t]he search warrants are part of an ongoing investigation relating to the financing and management of the commercial marijuana-cultivation projects.” In a U.S. Attorney affidavit, we can see what went into the raid itself.

So, why the raid? California’s existing cannabis regulations are not “robust” and therefore do not meet the standards of the Cole Memo, and the DOJ probably believed these Tribal cannabis operations were simply “too big” to ignore. Most importantly, it appears that the Tribe never received the required U.S. Attorney approval for its operations. There also appears to have been questionable non-Native American financiers involved with the Tribal grows, which is probably yet another reason why the DOJ believed it could not just sit back. Lastly, proposed traceability and accountability of the Tribe’s plants and products also did not appear to meet DOJ enforcement priorities for a such a large grow.

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Second, there was in late October of this year a federal government raid of a grow belonging to the Menominee Tribe in Wisconsin, involving the seizure of around 30,000 cannabis plants. This grow was allegedly made up of only industrial hemp and not marijuana plants capable of producing active THC. Menominee Tribal leaders maintain that “. . . the plants were intended for lawful research into growing industrial hemp, which is processed and utilized for fiber, food and oil and is distinguishable from marijuana by its lower levels of the high-inducing compound tetrahydrocannabinol (THC).” Though federal law prohibits cultivating hemp without a DEA permit, the Menominee were cultivating their hemp in cooperation with the College of the Menominee Nation, in accordance with the federal Farm Bill of 2014.

The twist with the Menominee raid (unlike the Pit River raid) is that the Menominee Tribe was engaged in active and reciprocal dialogue with BIA, the local cops, and an assistant U.S. attorney. These law enforcement authorities were aware of the Menominee’s hemp-growing plans and presumably had not taken issue with those plans until a BIA employee and local police inspected the operation and took plant samples. The affidavit in this raid states that, in addition to witnessing “individuals appearing to be non-native” and a Colorado-based consultant aiding the Tribe, the plant samples tested positive for the “presumptive indication” of marijuana.

Third, and just the week before last, the Flandreau Santee Sioux Tribe of South Dakota (which had earlier made headlines by legalizing marijuana and announcing plans to develop a medical marijuana-friendly resort on its lands) suspended its growing operations and burned its entire crop, citing concerns about criminal prosecution. Apparently, state and federal officials reviewed the Tribe’s business plans and determined that “any changes in tribal law would only affect tribal members, therefore, non-tribal members ingesting marijuana on the reservation risked prosecution under state law. . . [a]lso according to state officials, any non-tribal member returning to state land with marijuana in their system were violating state law, and thus, also subject to prosecution.” South Dakota Attorney General Mart Jackley stated that the Tribe’s decision to suspend its cannabis project was “in the best interest of both tribal and non-tribal members,” but he also promised to help the Tribe move forward with alternative cannabis plans. The Tribe is saying that it will next time use a more “calculated approach” to cannabis.

What are the takeaways from these two raids and the crop burning? First off, the Tribes must do their utmost to coordinate (in advance) their cannabis plans with any and all relevant local, state, and federal officials. Second, their cannabis regimes must closely hew the line with the various federal memos on what constitutes the sort of cannabis regime required for the Feds to keep their hands off. Third, the Tribes should do what they can to minimize direct involvement by non-Tribal members, especially those who are not Native-Americans and especially those with questionable (criminal) pasts. Tribes that closely abide by these three things will fare far better than those that do not, and there are a number of Tribes out there working on doing exactly that.

At this point, the only thing to preach is patience.

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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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