Laws legalizing the use of recreational and medical marijuana are sweeping the nation. California became the first state to legalize medical marijuana back in 1996. As of early 2022, 37 states have now legalized medical marijuana and 18 states have made marijuana legal for adult-use. These numbers will likely continue to grow as more states consider marijuana legalization and marijuana usage becomes increasingly mainstream.
Despite the fact that marijuana is still illegal on the federal level, Congress has passed federal legislation to protect state-regulated marijuana programs from U.S. government interference. Initially, these protections were designed to prevent the Department of Justice from interfering with state-regulated cannabis markets, though these same protections were later extended to U.S. territories and Washington, D.C.
Lack of Federal Protections
However, Native American tribes currently do not have the same federal protections that have been afforded to state and territorial markets. Historically-speaking, the U.S. federal government has left Native American tribes behind, with the primary goal of keeping Native Americans in poverty. This has been true since Native Americans were first removed from their ancestral homes and forced to relocate to reservations with less desirable land. U.S. cannabis laws are just the latest attempt to marginalize a population that already lives on the fringes of U.S. society.
While federal guidance offering cannabis protections to tribal lands was established during the Obama years, that guidance was repealed early on in the Trump administration. The Cole Memo, in which the Obama administration ordered U.S. attorneys not to interfere with state-regulated marijuana programs, and the Wilkinson Memo, which expanded on that federal guidance to include Native American tribes, allowed Native Americans to create their own cannabis programs in accordance with the law, and many did.
When the two memos were repealed in 2017, Native American tribal cannabis programs were suddenly subjected to federal interference. As a result, tribes that once believed they could turn the cannabis boom into profitable businesses have had to make some difficult decisions. In many cases, these decisions have diminished their control over their own business affairs.
Solutions to Federal Issues
Some Native American tribes have relinquished some of their sovereignty to prevent the federal government from interfering in cannabis operations in states where marijuana is legal, such as New Mexico. Other tribes have attempted to seek protection through state governments by negotiating revenue-sharing contracts, as they have for other businesses in the past including casinos. In short, Native Americans are allowing state governments to regulate (and make money off of) their businesses in exchange for the protections of state cannabis programs, even though some Native American tribes believe that these state protections will not safeguard them from federal intervention.
However, for Native American tribes that don’t have a good relationship with their state government, negotiating this kind of contract often isn’t an option. For example, in South Dakota, there is animosity between the Republican-controlled state government and the Santee Sioux, who fought back against the Keystone Pipeline development. Because of the tensions between the tribe and the state, the Santee Sioux opted not to negotiate a contract with the state. Instead, the tribe produces its own products and regulates itself, but there is always concern that the federal government could eventually interfere.
The Picuris Pueblos, a small tribe in New Mexico, were raided by the government in 2017 after the Obama-era guidance was rescinded by the new administration. The Bureau of Indian Affairs (BIA) removed 30 marijuana plants from their tribal lands, which had a total value of roughly $100,000. This past December, BIA conducted yet another raid on the tribe’s land, confiscating nine medical marjuana plants from the property of an individual who was registered with New Mexico’s medical cannabis program.
New Mexico is one of the poorest states in the nation, and as a poor tribe, the Picuris could significantly benefit from being able to participate in the state cannabis market. As of 2022, cannabis has become a $200-million dollar industry in New Mexico, but the Picuris tribe has essentially been shut out due to a lack of federal guidance. Although the Picuris recently signed an agreement with the state that offers them protection from U.S. government interference for a decade, many in the tribe remain apprehensive that the Justice Department could still impede their operations unless Obama-era protections are restored.
Even in more progressive states like California, Native American tribes have had a hard time selling cannabis products. The Santa Ysabel reservation, which lies about an hour outside of San Diego, has its own dispensary. However, products sold by Native American tribes cannot be sold in state dispensaries, and tribes are prevented from selling outside cannabis products made in California.
Because Native Americans are essentially barred from California’s state marijuana market, and no legislation has been enacted to remedy this situation, leaders from different tribes have discussed the possibility of a tribal exchange. And while this could hurt the state market, potentially prompting the state to change its guidelines, California tribes continue to live under the potential threat of federal interference.
The Biden administration has not yet called for the Justice Department to restore Obama-era cannabis protections for Native American tribes. Congress has also failed to pass legislation that would offer tribes the protections they deserve.
Recently, aftering becoming aware of this ongoing issue, several Democratic Senators sent a letter to the Department of Justice calling for the guidelines established under Cole and Wilkinson to be reenacted. However, the letter was not sent to the Office of Tribal Justice (OTJ), the agency responsible for overseeing Native American policy and legal matters. This incident once again highlighted the U.S. government’s ineptitude when it comes to policies that affect Native Americans.
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