Authors: Garrett L. Davey and Brad A. Bartlett
Although cannabis has been a boon for state revenues in those states that have legalized it under state law, the industry is still very much in the nascent stages of development within Indian country. The Obama administration took a largely “hands-off” approach to enforcing the Controlled Substances Act in states that had legalized marijuana, and adopted this approach for Indian country in Justice Department memoranda. It is not clear yet how the current administration will deal with cannabis issues in Indian country, but Jeff Sessions, the current U.S. Attorney General, has promised a review of the prior administration’s policies.
While a review of a prior administration’s policies on cannabis is an acceptable practice for any incoming U.S. Attorney General, eliminating those policies altogether could ultimately do more harm than good for American Indian tribes who have historically found themselves a prime target for high profile law enforcement actions. At a minimum, the Justice Department would need to adhere to the policymaking criteria set forward in Executive Order 13175, which requires that all executive departments and agencies consult with Indian tribes and respect tribal sovereignty as they develop policy on issues that impact Indian communities.
A sensible approach would be to leave existing Justice Department policies in place, and work with states, tribes, and industry to determine whether any federal priority areas for marijuana law enforcement need to be added or reprioritized. With regard to tribes in particular, changes in marijuana policy would not alter the U.S. Government’s trust obligation to American Indian nations, nor the requirement to conduct government-to-government consultation and provide tribes parity in treatment with states on cannabis issues. However, by maintaining the Justice Department’s Indian Country Marijuana Policy, laid out in the so-called Wilkinson Memorandum, both the federal government and tribes will be much better poised to confront public safety issues around marijuana enforcement, and create a more lasting trust around cannabis legalization by tribes should the consultation process be more accurately exercised by both parties.
Ultimately, however, a legislative fix will be necessary. In the near term, tribes should focus on seeking inclusion in the definition of “state” under the 2014 Farm Bill and for purposes of hemp research and production on tribal lands. Further, tribes seeking to enter the medical marijuana marketplace should advocate for inclusion in any reauthorization of Section 538 of the Consolidated and Further Continuing Appropriations Act of 2015, which prohibits spending on federal enforcement in states implementing a legal medical marijuana system. In the long run, however, tribes, as well as states, may need to pursue legislative changes to the CSA.
McAllister Garfield has been advising tribal clients seeking to enter the growing cannabis industry. Work in this area has included drafting tribal ordinances and helping to initiate government-to-government consultations and agreements with state and Federal governmental entities. The firm also offers a full suite of legal services for tribal businesses following the set up of a regulatory body and framework. McAllister Garfield is also well positioned with a network of federal and state government contacts, as well as numerous contacts within Indian country, to advocate on behalf of tribal clients for cannabis reforms in Indian country.