Last week, the Confederated Tribes of Warm Springs became the first Tribe in Oregon to announce that it would be growing and selling cannabis on its tribal lands. We’ve seen other Tribes try (and fail) to do the same thing. And we’ve seen other Tribes enter state compacts to grow and sell marijuana. But this is the first Tribe (of which we are aware) in a state with robust marijuana regulations forego a marijuana compact and enter the marijuana industry with self-created regulations. So, Warm Springs represents a new twist for tribal marijuana.
In December, 2014, the Department of Justice stated it would not prosecute federal laws regulating the growing or selling of marijuana on tribal lands, even when state law bans the drug. Monty Wilkinson, Director for the Executive Office for U.S. Attorneys, authored the statement, and it seemed to give Tribes the opportunity to become cannabis players because of their unique sovereign status. Though the statement never constituted a change of law or a repeal of the Federal Controlled Substances Act, it would mean that the eight enforcement priorities outlined in Cole Memo, in addition to consultation with tribal leaders, would guide U.S. Attorneys’ enforcement of federal marijuana laws on tribal lands.
Despite the DOJ’s new position on tribal marijuana, Tribes that attempted to self-regulate their marijuana operations received mixed treatment from federal law enforcement. The Pit River Raid by the Feds in July 2015, the Feds’ seizure of an entire crop belonging to the Menominee Tribe in Wisconsin in October 2015, and the November 2015 suspension and destruction of an entire growing operation on the lands belonging to the Flandreau Santee Sioux Tribe of South Dakota (at the behest of the Feds) all seem to indicate the “Wilkinson Statement” is meaningless. All of these tribes though are in states with little to no legalized cannabis regulation. Contrast that with the Suquamish and Squaxin Tribes, both of which inked a marijuana compact with the State of Washington, and have been allowed to move forward with their marijuana operations without federal intervention.
Since Oregon, like Washington, almost certainly qualifies as a state with robust regulations in line with the 2013 Cole Memo, we would expect the DOJ to treat the Warm Springs Tribe the same way it has treated the two Washington tribes that have legalized. But Warm Springs has no marijuana compact in place and so we do at least have to wonder whether that will matter to the Feds given its enforcement history.
Washington State passed legislation that any Tribe wanting to participate in its recreational marijuana marketplace had to sign a compact with the state to do so. Oregon has no such legislation, but reportedly Warm Springs will meet with officials in the Governor’s Office “. . . to hash out the conditions under which the enterprise will operate.” So, maybe we will see a compact after all, which would probably make sense given how the Feds have behaved to date.
All of this also raises the question as to whether having a state compact is the only way Tribes can participate in the cannabis industry without federal intervention. Based on what we have seen so far and based on our discussions with the DOJ on behalf of our own tribal cannabis clients, we think the answer is probably yes.
But stay tuned.