Federal Tribal Marijuana Memo Changes Almost Everything

Tribal Marijuana Conference
AP Photo by Elaine Thompson. This photo shows some of the speakers during a moment of silence for a Tulalip tribal leader who had just passed away.

In December 2014, the federal government announced that when it comes to marijuana, it would not essentially treat Native American Tribes as it treats states. Since that announcement, a number of tribes have indicated an interest in tribal marijuana. My law firm just last week put on the first national Tribal Marijuana Conference, attended by more than 400 people, from more than 75 tribes and more than 35 states.

Clearly, marijuana on tribal lands is going to be a big deal.

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 that it do so. According to the DOJ’s 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 none of this changes federal drug laws or the federal government’s ability to enforce those laws. Therefore, any tribe considering setting up a legalized marijuana regime should enact and enforce “robust regulations” so as to comply with the Cole and tribal marijuana memos and to increase its odds of avoiding unwanted federal 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 marijuana is 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 like Washington and Colorado, with advanced cannabis regimes, the tribes should be able to compete with legal sellers by imposing lower taxes or relatively more liberal regulations. 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. There are 93 US Attorneys and we do not expect all of them to agree to the tribes within their districts legalizing marijuana and they each have plenty of 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.

The opportunities for Native American Tribes in the cannabis industry are vast and just has been true of casino gaming, fireworks, and cigarettes, many tribes will immensely benefit from cannabis while others will opt out entirely. Tribal leaders will be meeting in Las Vegas on March 12 to cement the formation of a Tribal Leaders Cannabis Association that will enable moving forward as a unified group in dealing with key issues. We will be posting more information regarding this meeting later this week.