The Complex Issue of Cannabis Business On Tribal Land

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Throughout history, cannabis was regulated by federal law on reservations, so it was generally illegal. But after the 2013 Cole Memo, the topic of cannabis on tribal land and how it ties into the tribe’s government autonomy became increasingly prevalent.

Tribal land is considered sovereign territory, meaning that the land is independently governed by the tribe. They do have to adhere to many federal regulations but are independent from state control. That being said, there is a lot of flexibility when it comes to legalizing cannabis on tribal land, although some are still weary about doing it, especially those living in prohibition states.


From Casinos to Cannabis

Since Indian gaming was legalized in 1988, there has been a massive expansion of Native American casinos in the United States. This has had a tremendous economical and societal impact on reservations across the country. It seems that cannabis entrepreneurship on tribal land may follow the same path.

As states continue to legalize cannabis to some extent, and federal laws become laxer on the subject, many tribes are considering the business opportunities that cannabis can bring them. Many tribes that live in legal states have begun growing, either medical/recreational cannabis or industrial hemp. They’re distributing, selling, and event producing some of their own oils and infused-products.

Because of the conflicts that can arise when governing sovereign territory, there is often a lot of confusion in this area. Many tribes are conducting extensive feasibility research to determine whether cannabis could be a realistic option for them.

The Wilkinson Memo: A “Hands-Off” Approach to Tribal Cannabis Regulation

In October 2014, the Wilkinson Memorandum, a policy regarding how to regulate cannabis in native territory, was born out of inspiration from the Cole Memo.

”The eight priorities in the Cole Memorandum will guide United States Attorneys’ marijuana enforcement efforts in Indian Country, including in the event that sovereign Indian Nations seek to legalize the cultivation or use of marijuana in Indian Country,” the Wilkinson memo reads.

Just like the Cole Memo says that the Department of Justice should not interfere with state-regulated medical and recreational cannabis programs, the Wilkinson memo applies that same logic to sovereign tribal land. Federal attorneys have yet to comment directly about the Wilkinson memo, and they still aren’t too keen on the idea of tribes opening up to the industry. Cannabis-related events in particular seem to have the feds on edge.

Public Law 280

Public Law 280 was a transfer of legal jurisdiction from the federal government to state governments which gave some states authority over tribal land. In total, six states have enacted Public Law 280: California, Minnesota, Wisconsin, Nebraska, Oregon, and Alaska. Many other states also have partial authority over reservations, such as South Dakota, Idaho, Arizona, Iowa, Utah, Florida and North Dakota.

When talking cannabis, Public Law 280 can greatly complicate things for tribes considering implementing a program if they’re within a prohibition state. Only local enforcement will be something to consider though, law enforcement from neighboring states won’t be an issue, even if they’re right on the border of an anti-weed state.

List of Tribes that already have, or plan to in the future, update their cannabis laws

Flandreau Santee Sioux (South Dakota): This is quite possibly the most outspoken tribe in the US. The tribe announced their plans to build an “Adult Playground”, basically America’s very first, all-inclusive, cannabis resort. It would have really made South Dakota a much more appealing vacation spot, but sadly those plans went up in smoke. Shortly after a large raid on another tribe’s (Menominee) land, the Flandreau Santee Sioux destroyed all their crops and decided to hold off on the idea for the time being.

The Menominee Indian Tribe (Wisconsin): A well-publicized 2015 raid left the Menominee Indian reservation sans 30,000 cannabis plants they were using for hemp research after feds stated the THC levels were above 0.3%. A federal judge also stated that since marijuana was illegal in Wisconsin, the tribe wasn’t allowed to grow it and authorities were within their rights. That’s Public Law 280 in action.

The Passamaquoddy Tribe (Maine): The tribe now has a permit to grow industrial hemp in Maine. According to Diana Nelson, spokeswoman for Quoddy Hemp Manufacturing LLC, “ the company has obtained seeds from Kentucky and the Passamaquoddy Tribe is researching what kinds of hemp might grow best in northern New England.”

The Paiute Tribe (Nevada): The Paiutes have partnered with a company called Ultra Health to build some sort of medical marijuana conglomerate on their land. It’s to include two dispensaries, a production building, three greenhouses each larger than a football field, and a huge storage warehouse.

Shoshone Tribe (Oregon): The Fort McDermitt Paiute and Shoshone Tribe of Nevada and Oregon will be growing cannabis on its reservation specifically for medical use and research.

Suquamish Tribe (Washington): Cannabis has been legalized on Suquamish land and they are working out the final details.

The Squaxin Island Tribe (Washington): Squaxin Island Tribe’s reservation in Mason County owns the first tribal-owned recreational  cannabis store in the country.

The Navajo Tribe (New Mexico, Arizona, Utah): The Navajo are partnering with CannaNative to grow industrial hemp on their lands. They plan on the hemp farm being in New Mexico, where industrial hemp production is not yet legal. They can grow it on their lands regardless, but it would be much less complicated if it wasn’t prohibited.

Final Thoughts

Just like anywhere, cannabis is a very lucrative financial option tribes. Not only does it create many new jobs, but it could possibly be one of the last remaining options for tribes that are on land with scarce resources or unable to open a casino and host tourists.

In this industry, the unexpected is to be expected, so tribes need to be patient and prepared if they’re going to launch themselves into the business. They will be facing many of the same issues state-licensed cannabis businesses are currently dealing with due to state, federal, and now tribal, law discrepancies.

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