Native American Tribes are sovereign nations. They have their own governments, make their own laws and manage their own wealth. The United Stated Constitution (Article 1, Section 8) says:
Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.
Note that it is Congress and not the states that is empowered to regulate commerce with the Indian Tribes which means that the laws of the state in which a tribe is located are not enforceable on Indian land. This applies to laws governing the cultivation and use of cannabis.
It is well known that federal law prohibits growing, selling, using or possessing cannabis while many states allow the same in various degrees despite the federal law. Since state law doesn’t apply in Indian Country it’s easy to conclude that state cannabis laws are not applicable there either and that is correct. But federal law prohibits cannabis activities in the states too, so what’s the difference – well, thanks to federal policies, there isn’t any. Yes the federal Controlled Substances Act applies to the states and the Indian Tribes. In recognition of the explosion of state authorized cannabis activities the U S Department of Justice has said that its enforcement priorities will not be directed toward state legal cannabis activities so long as certain guidelines are followed. These guidelines are found in the Cole Memorandum, a guidance document to federal enforcement officials.
If the Justice Department has guidelines and exercises enforcement forbearance of cannabis laws in the states do the same guidelines apply in Indian Country?
Yes. In December 2014, the Justice Department released the Wilkinson Memorandum, which applied the Cole guidelines to Indian Tribes. So now Tribal cannabis laws are as legal in Indian Country as state cannabis laws are in the states, and since the Tribes are sovereign nations they can pass their own laws and apply them on their land.
This opens interesting opportunities for Tribes similarly as gaming activities have had on Indian land. Appropriate use of cannabis can be beneficial for tribal members and their visitors and Tribal Councils can often more easily pass applicable tribal laws. A problem for Tribal cannabis laws, however, is that just outside Tribal boundaries is a state that likely has a different set of laws, and unlike gaming, cannabis activities and effects can easily transcend the boundary. Accordingly, it is best for Tribal Nations to understand their concomitant state laws and work cooperatively with their host state.
Some tribes have erred by being too aggressive in promoting opportunities for recreational use of cannabis by non-tribal members while visiting tribal lands. Careful attention to the Wilkinson Memorandum is important and that’s why we recommend that tribes enact rules and regulations consistent with best practices used in states that have authorized legal cannabis use and activities. Importantly, medical cannabis can be particularly useful to alleviate the complications from overuse of opiates to manage pain and other disease caused symptoms. Proper enactment and implementation of tribal cannabis laws in Indian Country is recommended and can be beneficial if carefully managed to stay within federal guidelines.
For more on how to do that contact Contact Us.
Prepared by: Sanford M. Stein