On Dec. 11, 2014, the U.S. Department of Justice released a legal memorandum which announced the adoption of a new policy that affects Native American tribes, considered sovereign nations by the government. This memo addressed the growth and distribution of marijuana on tribal lands. According to the newly enacted policy, the DOJ will allow the use and cultivation of recreational marijuana on tribal lands as long as they follow the same federally-mandated requirements which have been laid out for states who have legalized cannabis.
Since the legalization of marijuana by popular vote in a handful of states, questions have surrounded the First Nations regarding their stance on the business of cannabis. While the discussion of recreational marijuana is being handled by each tribe individually, there is clear hesitation by the tribes to enact any major policy changes due to legal conflicts. While legalized by state-specific laws, marijuana is still federally recognized as a controlled substance, and many tribes are wary of changing their current marijuana policies.
“Our stance on the matter has not changed, the use of marijuana is still illegal inside of the reservation boundaries,” said Chuck Sams, Communication Director for the Confederate Tribes of the Umatilla Indian Reservation, located near Pendleton, Oregon. “We have received and reviewed the Department of Justice memo regarding this subject and have not made any updates to our current policy which bans the growth and distribution of marijuana on tribal lands.”
Tribes who do decide to grow and sell marijuana face an advantage over the current legal marketplace. As recognized sovereign nations, they are not subject to state and local taxes which affect the price of off-reservation cannabis. In Washington state, customers who purchase from legal marijuana retailers face a 25 percent taxation mark-up. By undercutting the costs of current retailers, those selling on reservations could be an attractive alternative for customers looking to save.
The other major issue tribes are dealing with when discussing the legalization of marijuana is related to long-standing substance abuse problems which plague reservations. Social issues stemming from the use of drugs and alcohol, which are staggeringly high in Native populations, are in direct conflict with the potential economic benefits of bringing the cannabis industry to tribal lands.
“Indian tribes have been decimated by drug use,” said Anthony Broadman, a Seattle-based attorney whose firm represents numerous tribal governments throughout the Northwest. “Tribal regulations of pot are going to have to dovetail with tribal values, making sure marijuana isn’t a scourge like alcohol or tobacco.”
The DOJ memo also states that the feds still reserve the right to criminally prosecute for a handful of marijuana-related felonies, even on tribal lands. The list includes: sale to minors, proceeds benefiting criminal organizations, illegal sales, distribution to non-legalizing states, growth on public land, possession of an illegal substance on federal property, public health issues, and use while operating a motor vehicle.
The Ogalala Sioux Tribal Council in South Dakota voted earlier this year to uphold the ban on marijuana on Pine Ridge Reservation. With the newest memo from the DOJ, it is possible the issue may make a resurgence and be up for discussion in the future.
For the Mohegan Tribe, located in Uncasville, Connecticut, the DOJ memo has opened up new economic opportunities. Already home to one of the largest Indian gaming casinos in the United States, the Mohegan leadership has stated that they will continue to consider all legal industries which have the potential to create financial security for their sovereign future.
“They have been equally clear that these new opportunities not jeopardize the significant investments they have already made into a highly regulated industry,” said Charles F. Bunnell, the Mohegan Tribe’s chief of staff for external affairs. “This new information is being reviewed in that context.”
Ultimately, it will be up to the individual tribes to decide whether to continue to enforce federal drug policy on their lands, or to explore a new source of revenue. The marijuana industry could potentially create jobs for reservations which have record rates of unemployment and few alternative opportunities.
As each of the 566 federally recognized sovereign tribes has the legal right and authority to set their own policies, it’s unlikely there will be a nationally uniform answer regarding the use and distribution of recreational cannabis any time soon.