Compacts and Comments: Vetting Marijuana Endeavors in Indian Country

Author: Garrett L. Davey

Following the November 2016 election, more than half the country’s population lives in a state where marijuana is legal under state law, either for medical or recreational use. Many American Indian tribes are similarly contemplating entry into the marijuana industry, albeit at a slower pace and with myriad legal complications not faced by their state counterparts. Tribes can work through these legal complications, however, and vetting tribal ordinances and plans of operation as well as entering into government-to-government compacts have proven to be a successful model for a small number of tribes entering the cannabis industry thus far.

In 2014, the Department of Justice (the “DOJ”) issued the “Wilkinson Memo,” which provided guidance regarding marijuana enforcement priorities in Indian Country (similar to the Cole memos issued by the DOJ regarding state medical and retail marijuana regulatory regimes). The memo recognized that like states, tribes are sovereigns that may create their own regulatory regimes vis-à-vis marijuana, so long as tribal law does not run afoul of the eight federal marijuana enforcement priorities. In practice, however, and unlike their state counterparts, tribes have not received parity in treatment from the federal government.

Federal agents have raided tribal marijuana operations and seized tribal property before tribal operations even got off the ground. In raiding the Menominee Indian Tribe of Wisconsin and the Alturas Indian Rancheria in California, for example, the Drug Enforcement Administration seized over $1 Million in plants. In these two instances, the tribes had undertaken huge operations on a scale not seen before. The Menominee Tribe, for instance, planted 30,000 industrial hemp plants. While difficult to tell, these endeavors may have benefitted in the first instance from greater vetting of tribal ordinances and operations, formal government-to-government consultation, and entry into compacts.

To date, tribes that have successfully launched marijuana endeavors have done so after entering into compacts with the states in which they sit. Government-to-government compacts provide strong protections for tribes seeking to launch marijuana ventures. Vetting the tribal ordinances and subsequent operations may also provide strong protections. The Wilkinson Memo discusses the need for DOJ consultation with tribes, and the Controlled Substances Act provides a basis for entering into an agreement with the DOJ to regulate controlled substances on the reservation.

Thus, tribes seeking to enter the marijuana industry should start by a) vetting their ordinances and plans by making them available for courtesy public comment to relevant state and federal governmental entities, and b) engaging in government-to-government consultation with the goal of entering into a compact or agreement with appropriate state and federal agencies.

Practically speaking, this type of cooperative enforcement could be used as a means to “chill” enforcement actions against a tribally licensed supplier/operator, unless the prosecutor finds that the operator is violating tribal and federal law, and that the tribe is unable or unwilling to correct the problem. Ultimately, entering into a cooperative agreement has the effect of creating transparency, building trust and surety for all parties, and formalizing, on a government-to-government basis, the administrative discretion previously articulated in the Wilkinson Memo.

McAllister Garfield has been assisting tribal clients in navigating the complex web of legal regimes that must be contemplated when launching marijuana business ventures. Work in this area has included the drafting of tribal ordinances and helping to initiate government-to-government consultations and agreements between tribal clients and state and federal governmental entities. McAllister Garfield views entering the marijuana industry, whether for medical or recreational purposes, as a boon for tribal economic development and ultimately as a pathway to strengthen tribal sovereignty and self-governance.