Annual pow wow at the Red Cliff Indian Reservation
Indian Tribes: The Next Purveyors of Cannabis?
Early this spring, I joined others who spoke at a marijuana conference in San Diego, California, titled “Marijuana: The Next Big Thing in Native American Economic Development?”
Our panel lectured on what some believe to be a “policy shift” by the Department of Justice in regards to the federal government’s enforcement of the Controlled Substances Act and other drug enforcement laws on native lands.
The federal government and Indian tribes have a unique legal relationship that is deeply rooted in American history. It is generally recognized that tribes are self-governing sovereign entities. However, this sovereignty is subject to the regulatory powers of Congress. So the power to deal with and to regulate tribal affairs is entirely federal — meaning, the states do not have power to regulate the tribes unless Congress delegates that power to them. With this regulatory power, the federal government has a responsibility for protecting the tribes, including protecting them from encroachment by the states and the citizens of the United States. Because of the federal government’s unique relationship with the tribes (and the desire by some states to partner with tribes for financial gain related to the cannabis industry), it will be interesting to see how these business relationships evolve.
On Oct. 28, 2014, the Department of Justice (Monty Wilkinson) issued a memorandum making a federal government policy statement regarding “Marijuana Issues in Indian County.” In essence the memorandum permits Indian tribes to be cannabis purveyors, despite state law. The memorandum cautions only that Indian tribes must concern themselves with the same eight concerns the federal government has articulated to the states, including preventing the distribution of marijuana to children, preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels, and a prohibition on firearms at locations where cannabis is cultivated and distributed.
In a Huffington Post blog published Feb. 4, 2015, it was revealed that over the past month, “more than 100 Native American tribes have reached out to FoxBarry Farms, a management firm building the nation’s first marijuana facility on tribal land, to express interest in the cannabis industry.”
While many tribes are cautious, the recent attendance numbers of conferences around the country where financial possibilities in cannabis are being discussed make it clear that some tribes are seriously considering whether cannabis (or industrial hemp) production could be their very own “green rush.” The interest in working with Native American tribes comes as no surprise, especially where we see such financial potential in this industry — and many states and local governments within states are not taking a progressive approach to this industry, mainly because of the federal posture on cannabis. If the tribes are successful, the states that are prohibiting or unreasonably stifling commercial opportunities, could find themselves in an unenviable position. The conference I participated in included a showing of top-name sponsors and investors clearly poised to do business with entrepreneurial tribes entering this “budding” industry.