Author: Garrett L. Davey, Esq.
Since President Trump’s appointment of former Senator Jeff Sessions as United States Attorney General, there has been a lack of clarity regarding the new administration’s treatment of states with legal marijuana. This lack of clarity has also had a chilling effect on American Indian tribes seeking entry into the cannabis industry, in part because of tribes’ unique jurisdictional circumstances with the federal government, but also because tribes adopting state “go-it-alone” models of cannabis legalization have failed to receive parity in treatment with states on cannabis issues, and have been met with threats or actions by law enforcement, federal and state.
American Indian tribes with an interest in entering the cannabis industry, however, have an opportunity to engage Attorney General Sessions and the Department of Justice (DOJ) in dialogue related to cannabis in Indian country. Sessions issued a memorandum on April 5, 2017 to the Department’s Task Force on Crime Reduction and Public Safety. The memorandum, aimed at combating violent crime, directs the Task Force to “identify ways in which the federal government can more effectively combat illegal immigration and violent crime, such as gun crime, drug trafficking, and gang violence.” To this end, the Task Force established subcommittees to undertake a review of existing agency policies, including a review of DOJ’s marijuana policies “to ensure consistency with the Department’s overall strategy on violent crime and with Administration goals and priorities.”
The Task Force will hold a National Summit on Crime Reduction and Public Safety within 120 days to solicit input from various law enforcement agencies, including tribal law enforcement. For those tribes seeking to enter the cannabis industry, this National Summit presents the first opportunity to discuss cannabis in Indian country with the new Attorney General. Tribes should have representation at the National Summit to highlight the need for DOJ to maintain its marijuana enforcement priorities as articulated in the Ogden, Cole, and Wilkinson memoranda. Tribes may also take this opportunity to discuss the need for DOJ to enter into agreements with tribes legalizing cannabis, so that tribes and the federal government can cooperatively regulate cannabis in tribal lands, and ensure that marijuana in Indian country does not interfere with any of the eight enforcement priorities stated in the Wilkinson memorandum.
As with a variety of federal legislation and guidance, if those tribes seeking to enter the marijuana industry do not participate in the National Summit, it is likely the Task Force will make recommendations with little consideration of tribal circumstances. Tribes have already experienced the effects of this lack of consideration in the cannabis context with the 2014 Farm Bill, which a Federal District Court in Wisconsin held did not include a mechanism for tribes to exercise their sovereignty to legalize hemp in the same way states could.
This lack of parity in treatment with states regarding cannabis has been incredibly problematic for tribes, which highlights the importance of participating in the Task Force’s National Summit. McAllister Garfield, P.C. works closely with individuals and organizations with contacts in DOJ and is available to assist tribes with talking points, and lobbying considerations. McAllister Garfield also has extensive experience in advising tribes with all their cannabis and hemp needs.