Cannabis on Tribal Lands: Congress Hears Hopes and Concerns

On Friday, the Senate on Indian Affairs, chaired by Sen. Brian Schatz, held a bipartisan hearing called “Cannabis in Indian Country,” which organizers said drew “overwhelming” interest. 

“Tribes have been participating in the cannabis industry for roughly the last decade and yet a path forward remains undefined,” said Jennifer Romero, chief counsel to the Committee. “In that time, a number of bills have also been introduced that address cannabis commerce as the landscape of cannabis commerce in Indian Country continues to take shape.”

In October 2014, Monty Wilkinson, who was recently appointed by U.S. Attorney General Merrick Garland to serve in the same role he held back then, director of the Executive Office for United States Attorneys, issued a “policy statement regarding marijuana issues in Indian Country” in response to questions about the Controlled Substances Act. 

It leaned on a Department of Justice memo issued one year earlier, known as the Cole memo, which essentially promised a hands-off approach to state-legal cannabis activity so long as eight priorities, like preventing youth use and diversion, were met. However, former Attorney General Jeff Sessions rescinded the Cole memo in 2018.

Tribes have nonetheless moved forward, albeit with hesitation. In 2015, Washington state and the Suquamish Tribe signed the first compact in which a state explicitly allowed a tribe to legalize cannabis. Also in Washington, the Squaxin Island Tribe opened the first legal cannabis shop on a reservation. 

On Friday, attendees were asked to consider a handful of questions: is your tribe participating in the cannabis industry? If so, what operational issues have arisen? For those who have stayed away from commercial cannabis activity, which legislative fixes would address concerns? And, if cannabis is decriminalized at the federal level, what kind of framework, including Tribal, federal, and state, would you put forward to “ensure Tribal interests are safeguarded?”

One theme that emerged is the desire that states stay out of the regulation of cannabis on tribal lands. Another was that there needs to be a solution to transportation of cannabis across state lines, given many tribal lands cross state boundaries. There’s also some level of fear that the feds could decide to prosecute Tribal cannabis operators, even if they’ve generally taken a hands off approach so far. Finally, several speakers urged banking solutions as well as better access to equity programs. 

Lee Redeye, a lawyer for the Seneca Nation of Indians, shared the rules and regulations that the Seneca Nation of Indians would like to see if cannabis is decriminalized at the federal level. 

The Seneca Nation supports a Tribal, federal, state framework that “allows tribes to create and regulate their own cannabis industry completely free from state interference,” Redeye said. “Tribes and tribal communities are in the best position to determine what will and what won’t work on their territories. And we believe that states have no role in this process.” 

Redeye brought up concerns related to the transportation of cannabis across state lines, but within Tribal boundaries, or between noncontiguous reservations, and the potential for law enforcement seizures. Redeye pointed to the 2018 Farm Bill for potential policy language related to transportation of hemp. 

“We would like to see some regulations that protect us when we transport from one territory to another and we would oppose any sort of transportation requirements that require us to go to the state first,” Redeye said. 

Donald Kilgore, council to the tribal chief to the Mississippi band of the Choctaw Indians, said that he would like to see the Department of Justice return with memos similar to those released under President Barack Obama, like the Cole Memo, that offered some feeling of certainty that the feds would take a hands off approach. Kilgore said he’s asked President Joe Biden’s administration to reinstate them, but has “not heard back from them.”

“That would be a big help to us in addressing the federal concerns about cannabis on the reservation lands,” Kilgore said. 

Santa Clara Pueblo Chief Judge Frank Demolli said that the Santa Clara Pueblo “does not participate in legalizing marijuana use, possession or sales at this time because Santa Clara Pueblo does not want to step into the legal quicksand right now.” 

Demolli requested that the pass legislation to end the “discriminatory practices of the U.S. regarding the possession, use and sales of marijuana within Indian Country.” 

“All of these promises about not prosecuting, any judge or attorney knows that they don’t hold water. It’s very nice, but they can’t be used as a defense,” Demolli said, adding that “unwritten policy” not to prosecute possession isn’t enough. 

“They do prosecute the citizens of Indian Country for the same thing. And so we would like the to consider passing some type of legislation that would end this discriminatory prosecution,” Demolli said. 

Michael Blacksmith, the general manager for a dispensary owned by the Jamestown S’Klallam Tribe, said that, from a retail perspective, the SAFE Banking Act should be the primary topic of conversation. 

“Removing the cash burden from this business would probably be the biggest thing that the federal government could do to protect us right now,” Blacksmith said, adding that he, too, would like to see states removed from the regulation of tribal business. 

Mary Jane Oatman, the founder of the Indigenous Cannabis Coalition, said that she doesn’t currently participate in the cannabis industry because she’s located in Idaho, a state with a historically “hostile” approach to cannabis. 

“We need to do everything that we can to keep states at arm’s length with cannabis, commerce and economies, because tribes know how to do things for the public health and safety of our communities,” Oatman said. “And if this is truly about public health and safety and not about taxation, then we will allow tribes to lead with self-determination and make sure that the states do not have access to any types of revenue sharing.”

Written comments will be accepted until July 8. 

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