United States: DOJ Issues A Policy Statement Regarding Marijuana Issues In Indian Country

On December 11, 2014, the United States Department of Justice (DOJ) released its "Policy Statement Regarding Marijuana Issues in Indian Country" (2014 Tribal Policy Statement). Following the release was a lot of sensationalized and inaccurate press coverage generally proclaiming that marijuana was now legal on tribal lands.[1] Such press coverage greatly oversimplified the policy implications of the memo, ignored DOJ's respect for tribal self-governance and marginalized the complexity of tribal issues in an era of changing state marijuana laws.

Regardless of any dramatic headlines in the press, the 2014 Tribal Policy Statement certainly did not legalize or condone marijuana in Indian Country. It did not support marijuana legalization, however it was very supportive of tribal sovereignty and strongly promoted tribes' authority to ban or legalize marijuana on their own lands. Despite any changes to tribal or state laws, or the issuance of the 2014 Tribal Policy Statement, Marijuana remains a Schedule I Controlled Substance under The Controlled Substances Act, P.L. 91-513, and the possession, use, production and cultivation of marijuana are prohibited by federal law. Misdemeanor violations are punishable by up to one year in prison and felony violations can be punishable by up to life in prison.

Tribes who are considering the economic opportunities presented by the marijuana industry must carefully consult with law enforcement regarding their specific circumstances. Also, tribes in states with evolving marijuana laws should consider developing tribal laws that ban or otherwise address marijuana after considering the state law impacts to their communities, membership, allottees and the environment.

Analysis

Prior to the 2014 Tribal Policy Statement, in 2013 DOJ had issued a "Guidance Regarding Marijuana Enforcement" (Cole Memo) in response to the ballot initiatives in Colorado and Washington that legalized under state law the production, processing, sale and possession of marijuana. The 2013 Memorandum, known as the "Cole Memo" for Deputy Attorney General James Cole, articulated the enforcement priorities that had previously and would continue to guide DOJ enforcement of federal marijuana laws, regardless of state law. Those priorities were restated in the 2014 Tribal Policy Statement and include;

  • 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 a cover or pretext for the trafficking of other illegal drugs or other 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.

Guidance on marijuana enforcement on tribal lands was absent from these priorities when first articulated in the 2013 Cole Memo. Indeed, the enforcement priorities that focused on "public lands" and "federal property" created inconsistencies when applied to tribal lands which are explicitly excluded from the definition of "public land,"[2] but also fit within the definition of "federal property."[3] The 2014 Tribal Policy Statement clarifies that the federal enforcement priorities from the Cole Memo will also apply to enforcement in Indian Country. It respects that all tribes are different and directs all United States Attorneys to work with tribes to address the specific public safety issues each tribe must confront. Effectively, the 2014 Tribal Policy Statement extends the same respect DOJ showed to state law in the 2013 Cole Memo to tribal law.

Tribes should also note that the day after releasing the 2014 Tribal Policy Statement, DOJ also published guidelines issued by the Attorney General on "Principals for Working With Federally Recognized Indian Tribes." The Principals guide DOJ's work with tribes and explicitly recognizes tribes' "inherent sovereign powers, including powers over both their citizens and their territory," as well as "that solutions that work for one tribe may not be suitable for others." The publication of these principals clearly did not receive any dramatic press attention. Yet, tribes should note that the 2014 Tribal Policy Statement directly follows this guidance and can be a step to continue to build and strengthen tribal sovereignty and self-governance.

Potential Tribal Impacts

While DOJ can be applauded for their respect of the government-to-government relationship, this respect also elevates the tribal obligation to be a responsible governmental partner. As with the States of Colorado[4] and Washington[5], any tribe considering legalization would also have to establish a regulatory system that has controls and procedures that are both robust on paper and effective in practice. Tribes have considerable regulatory experience in gaming and establishment of a regulatory system that meets or exceeds that of any state is certainly possible. However, it is much more likely to be practical for tribes in states that have also legalized marijuana possession than for tribes in states where it is prohibited. There are potential, but uncertain, economic benefits to tribes considering legalization, yet tribes will face many other legal, political and perception issues in making such a decision.

Clearly, the 2014 Tribal Policy Statement applies to tribal governments only and not to individual tribal members who may want to produce, process or possess marijuana on tribal or allotted lands. Indeed, some of the sensationalized media coverage could cause misinterpretation by individual tribal members. The Los Angeles Times, for example, used the headline "U.S. won't stop Native Americans from growing, selling pot on their lands."[6]

Furthermore, tribes clearly have substantial political and reputational concerns to manage as well as relationships with neighboring communities and states. Recently, the States of Oklahoma and Nebraska sued Colorado alleging that its laws have burdened those neighboring states.[7] One state has also already even raised the 2014 Tribal Policy Statement in ongoing litigation where the State has challenged the status of Indian lands.[8] As each tribe is unique, different states have taken very different approaches to both marijuana laws and tribal lands and any tribe considering legalization will have substantial political issues to weigh on the state and local levels.

Conclusion

Despite anything written in the press, the 2014 Tribal Policy Statement did not legalize marijuana in Indian Country. It did clarify that the circumstances DOJ had articulated where it would prioritize marijuana enforcement for states, also applied to tribes. It also directed all United States Attorneys to consult with tribal governments regarding marijuana enforcement. The first step for any tribe seeking to develop a marijuana policy, whether to ban or legalize, would be to consult with their own United States Attorney and to confer with state law enforcement.

Charles W. Galbraith is a former federal prosecutor and former White House Staffer whose practice focuses on federal Indian Law.

Footnotes

[1] See "Tribes Can Legalize Pot, Justice Department Decides: Marijuana may displace casinos as reservation cash cows," available at http://www.usnews.com/news/articles/2014/12/11/tribes-can-legalize-pot-justice-department-decides; and "Native American reservations now free to legalize marijuana," available at http://www.washingtonpost.com/news/morning-mix/wp/2014/12/12/native-american-reservations-now-free-to-legalize-marijuana/

2] 43 U.S.C. § 1702

3] 20 U.S.C. § 7713

4] The Colorado Department of Revenue Marijuana Enforcement Division licenses and regulates marijuana in the state. See also https://www.colorado.gov/pacific/enforcement/marijuanaenforcement.

5] The Washington State Liquor Control Board is responsible for implementation of the State's marijuana legalization initiative. See also http://liq.wa.gov/marijuana/I-502.

6] http://www.latimes.com/business/la-fi-marijuana-indians-20141211-story.html.

7] See http://www.ok.gov/triton/modules/newsroom/newsroom_article.php?id=258&article_id=15070. Tribal leaders in South Dakota will likely note the irony of Nebraska joining this lawsuit as millions of dollars of liquor sold in Whiteclay, Nebraska has affected the neighboring Oglala Sioux Tribe for decades.

8] See State of Alabama v. PCI Gaming Authority, et al. (11th Cir. 2014) 14-cv-12004.

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