Tribes to U.S. Government: Take Your Weed and Shove It

In a strange move, the Justice Department issued a memo allowing Native Americans to grow marijuana on their lands. But after a troubled history with alcohol, some tribes are wary.

12.13.14 11:45 AM ET

Marijuana legalization activists and drug policy makers were shocked with a Los Angeles Times story Thursday exposing a directive that the U.S. won’t stop Native Americans from growing or selling pot on their lands. But the memorandum, which has the potential to unleash a multi-million dollar marijuana industry on tribal lands, asks more questions than it answers.

The document, released on the Department of Justice’s website shortly after the LA Times story broke, is essentially a roadmap for marijuana legalization on tribal lands. A statute that extends even to tribal lands located in states where both medical and recreational marijuana remain illegal. At just three pages long, the memo leaves more questions than it answers. “Some tribes” have “requested guidance on the enforcement of the Controlled Substances Act (CSA),” the opening reads. Prompting the Native American community to ask: which ones?

The provisions in the memo—modeled after similar ones issued in the famed Cole Memorandum from Colorado and Washington—are fairly straightforward. But with many tribes expressing concern about marijuana on their lands, the motivation behind it remains unclear. Henceforward, Indian nations are exempt from the federal government’s rules on marijuana. But the feds missed an important point when they failed to consult with the 568 recognized tribes in America: they didn’t want to be.

The safety of these marijuana operations hinge on eight “priorities”—or, rules—such as keeping the drug from minors and preventing flow of funds into the black market. Native American communities who do not wish to be a part of this will not be forced to, as the new rules will be enacted on case-by-cases basis.

Tom Angell, founder of nonprofit Marijuana Majority, says the whole thing is a bit odd. “No Native American tribes have said ‘We’ve legalized, now what?’” Angell tells The Daily Beast. “It seems like the feds are being—almost proactive?” If he’s right, it would surely be an uncharacteristic move. A bitter battle in Congress today is over whether or not the federal government has the right to interfere with medical marijuana grows—for say, a dying cancer patient. Giving out go-to-reeferville free cards is not exactly their M.O.

Whether or not any tribes have solicited this concept, Angell views it as a positive opportunity for the Native American community. “I’m a marijuana legalization advocate I think the more jurisdictions where we can bring it out of the black market and take it away from people who use it criminally, I think that’s good,” he says. “Not to mention the revenue that will be generated by this, which then can be used to fund education and health care.”

Wyn Hornbuckle, a spokesperson for the Department of Justice, tells The Daily Beast that the memo was done in the interest of Native America community’s safety. “This policy statement recognizes that Indian country is incredibly diverse, and different tribes will have different perspectives on enforcement priorities that are in the best interest of their community’s public safety,” says Hornbuckle. “Some tribes are very concerned with public safety implications, such as the impact on youth, and the use of tribal lands for the cultivation or transport of marijuana, while others have explored decriminalization and other approaches.”

But while Hornbuckle views this as a collective agreement between two parties, some in the Native American community view it differently.

Troy Eid, co-chair of the American Indian Law Practice Group who is one of the authorities on Indian law in America, tells The Daily Beast he’s puzzled by the news. “To my knowledge, there was no formal consultation done with the tribes on this policy,” says Eid. “There are requirements in federal law and federal executive orders that the federal government must consult with tribes before making a declaration of policy. Consultation is a key policy it’s been in place since 1971 when president Nixon recognized tribal sovereignty.”

While some of Eid’s Native American clients have mentioned interest in the marijuana industry, others have explicitly expressed their disapproval of the drug becoming legal. “I can tell you that tribes are all over the map on marijuana. We have clients that are struggling with the adverse effects and they have laws that make it a crime to be involved with marijuana,” he says. “There are other tribes that have expressed interest to us in getting involved.”

But each tribe, he says, is different. Which is why a uniform policy doesn’t make sense. Those that were concerned about marijuana adding to already significant drug abuse problems in their communities now may be left without protection. “What if they wanted enforcement on their lands still? U.S. Attorneys aren’t going to be able to take cases anymore in those areas,” he says.

Eid, who teaches Indian law at two law schools and works as an attorney himself, had no idea that it was coming. “I do this all day long…I’m puzzled. I wasn’t expecting it. I’ve never heard a word about it. I keep thinking—why didn’t they ask the tribes?” While he doesn’t necessarily understand the motivation behind the memo, Eid guesses that it was “well-intentioned.” Still, the lack of communication with the tribes does not bode well for the future relationships. “It is a strange way to proceed. The lack of government-to-government consultation, it’s not acceptable.”

Hornbuckle, on the other hand, says the policy will not put Native American nations in danger. “Marijuana remains illegal under federal law, and nothing in the Cole memorandum or this policy statement alters the authority or jurisdiction of the United States to enforce federal law in Indian country or elsewhere,” he says.

Two days after the memo was released, however, it’s still unclear who the “some tribes” mentioned in the memo are. Early guesses, such as Ho-Chunk tribe—who have discussed marijuana in the past—have recoiled since the memo. “The Ho-Chunk Nation has not had any discussion on growing marijuana on our land,” a spokesperson for the tribe told the Milwaukee Journal Friday. “We believe that there has to be research and education on the impacts that it would have on our communities.”

Still recovering from a long, embattled history with alcohol, the vast majority of tribes seem wary to move forward with the opportunity—calling into question why it was offered in the first place. An Associated Press article lists just three tribes interested: one in Colorado, one in Washington, and the other in the Midwest (none have been named). But if any are interested, they’re not coming forward. A councilman for the Oglala Sioux tribe told the Associated Press that her “gut feeling” was that her community would shut it down. “For me, it’s a drug,” she said.