By Michele Brooke, Esq.By Michele Brooke, Esq.
Early this Spring I was among the speakers at a marijuana conference in San Diego, Calif., titled: "Marijuana: The Next Big Thing in Native American Economic Development?" Our panel lectured on what was perceived by some Indian Tribes to be a Policy Shift by the Federal Government related to the 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 regulate the tribes is entirely federal—meaning that the states do not have power to regulate the tribes unless Congress delegates 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.
The DOJ issued a policy statement in October 2014 permitting Indian Tribes to be cannabis purveyors, despite state law.
Because of the federal government’s unique relationship with the tribes and the desire of some states to partner with some tribes for financial gain related to the cannabis industry, it will be interesting to see how these business relationships evolve.
The Marijuana Policy Statement
Cannabis-related issues among Indian Tribes were set in motion when the Department of Justice Director Monty Wilkinson issued a memorandum to U.S. Attorneys, various Chiefs and all Tribal Liaisons, Oct. 28, 2014, making a federal government policy statement regarding "Marijuana Issues in Indian Country." In essence, the memorandum permits Indian Tribes to be cannabis purveyors, despite state law. It cautions only that Indian Tribes must concern themselves with the same eight concerns the federal government has articulated to the states—e.g. preventing the distribution of marijuana to children; preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; a prohibition on firearms at locations where cannabis is cultivated and distributed, etc.
In a Huffington Post blog published in February, it was revealed that "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, over the past month to express interest in the cannabis industry."
While many tribes are cautious, the popularity of various conferences designed to explore the financial possibilities in cannabis make it clear that some tribes are seriously considering whether or not cannabis (or hemp) production could be their very own "green rush."
The interest in working with the tribes comes as no surprise, especially where we see such financial potential in this industry. It also presents opportunity to those who reside in states where the state and local governments are not taking a progressive approach to this industry, mainly because of the federal posture on cannabis.
If the Tribes are successful, the states prohibiting or unreasonably stifling commercial opportunity could find themselves in an unenviable position. The conference I was a part of included a showing of top-name sponsors and investors, clearly poised to do business with entrepreneurial tribes entering this "budding" industry.
Michele Brooke is an attorney in California who practices civil litigation and civil cannabis law. She is a member of Americans For Safe Access, NORML and the American Herbal Products Association, Cannabis Committee. Visit her website: www.brookelawgroup.com
Editor's Note: For more information, access the Justice Department's "Policy Statement Regarding Marijuana Issues in Indian Country Frequently Asked Questions" here.
