Marijuana Laws at the Tribal Level

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We’ve come a long way from Reefer Madness in recent times. Colorado, Oregon, Washington and Alaska have recreational marijuana laws. Nineteen states and the District of Columbia have legalized medical marijuana in some way, shape, or form.  Now it seems tribal lands are allowed to decide their own marijuana laws: “The U.S. Justice Department said Thursday [December 11th, 2014] Indian tribes can grow and sell Marijuana on their land so long as they follow the same federal conditions laid out for states that legalize the drug.”

More of a Suggestion than a Law

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Flandreau Santee Sioux tribe shuttered plans over unclear marijuana laws.

The conditions for legalized marijuana state that Native American tribes cannot sell marijuana to minors, use money to fund criminal enterprises, distribute marijuana to other states where it is not legal, and other provisions that ensure public safety. One such provision states that marijuana cannot be used or grown on federal grounds. The memo is not law however and it does not change policy. Ultimately it is only a suggestion to federal agents not to aggressively pursue marijuana-related crimes on tribal lands.

A Cautionary Approach to Marijuana Laws

At first blush the changes seem to be a boon to 566 federally recognized Native American tribes in the U.S. They could do with marijuana what they have done with gaming and tobacco and make considerable profit. Few tribes have attempted to draft their own marijuana laws. The Flandreau Santee Sioux Tribe planned to open a marijuana lounge in South Dakota, but have scrapped their plans and burned their crops until they get further guidance from the U.S. Department of Justice.

Communication Between Tribes and the Federal Government

Many tribes have shown interest in pursuing marijuana distribution but so far it has been a rocky road. The process requires that tribes need to first consult with the appropriate U.S. Attorneys regarding marijuana laws but without these meetings the tribes will still be subject to federal law. The Pit River Reservation in Northeast California was raided by the DOJ, DEA and the Bureau of Indian Affairs because the crop was simply too big to ignore. The reservation had not consulted with U.S. Attorneys and was subsequently subject to a search warrant and the seizure of marijuana plants.

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The Menominee tribe filed a lawsuit over a raid of their cannabis crops.

In a more recent case, the Milwaukee Journal published an article that states the Menominee tribe filed a lawsuit against the federal government over the seizure of marijuana plants being grown for use as hemp. Federal agents seized about 30,000 marijuana plants from the tribe’s reservation. The tribe argued that they were growing the crop for hemp and research purposes in conjunction with the College of Menominee Nation. The suit alleges that the tribe’s growing marijuana for these purposes falls under a Farm Bill signed in 2014 and that the federal agents were illegally seizing the crops.

As the public becomes more accepting of marijuana laws favoring decriminalization and legalization the federal government is softening it’s stance overall. The problem as it pertains to tribal law is the effect it will have on their community and on non-tribal citizens living near reservations should they decide to legalize marijuana, especially in states where marijuana is still illegal. This uncertainty appears to be holding back the efforts of Native Americans. “Everybody who is smart is pausing to look at the feasibility and risks of growing hemp and marijuana.” said Lance Gumbs, regional vice president of the National Congress of American Indians, “but are we giving up on it? Absolutely not.”

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